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Sanctions, Accountability and Governance in a Globalised World

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Sanctions, Accountability and Governance in a Globalised World SANCTIONS, ACCOUNTABILITY AND GOVERNANCE IN A GLOBALISED WORLD This book is the first in a series examining how public law and interna- tional law intersect in five thematic areas of global significance: sanctions, global health, environment, movement of people and security. Until recently, international and public law have mainly overlapped in discus- sions on how international law is implemented domestically. This series explores the complex interactions that occur when legal regimes intersect, merge or collide. Sanctions, Accountability and Governance in a Globalised World dis- cusses legal principles which cross the international law / domestic public law divide. What tensions emerge from efforts to apply and enforce law across diverse jurisdictions? Can we ultimately only fill in or fall between thecracksoristheresomegreaterpotential for law in the engagement? This book provides insights into international, constitutional and admin- istrative law, indicating the way these intersect, creating a valuable resource for students, academics and practitioners in the field. connecting international law with public law This five volume series flows from workshops bringing public and international lawyers and public and international policy makers together for interdisciplinary discussion on selected topics and themes. The aim of the series is to promote a deeper understanding of how public law and international law intersect, both in theory and in practice. Until now, international and public law have mainly overlapped in discussions on how international law is implemented domestically. This series is unique in consciously bringing together public and international lawyers to consider and engage in each other’s scholarship. Series editors K IM R UBENSTEIN is Professor and Director of the Centre for International and Public Law (CIPL) in the ANU College of Law, The Australian National University. Her current research projects are at the cutting edge of the intersection between public and international law. Her public law work spans constitutional and administrative law, and also includes her expertise in citizenship law. T HOMAS P OGGE is Professor of Political Science at Yale University, Professorial Fellow at the ANU Centre for Applied Philosophy and Public Ethics (CAPPE) and Research Director at the Oslo University Centre for the Study of Mind in Nature (CSMN). He writes and teaches on moral and political philosophy and Kant. SANCTIONS, ACCOUNTABILITY AND GOVERNANCE IN A GLOBALISED WORLD Edited by JEREMY FARRALL and KIM RUBENSTEIN CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, SãoPaulo,Delhi,Dubai,Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521114929 © Cambridge University Press 2009 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2009 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library ISBN 978-0-521-11492-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS Contributors page x Series editors’ preface xvii Editors’ preface xix Introduction: Filling or falling between the cracks? Law’s potential 1 JEREMY FARRALL AND KIM RUBENSTEIN PART I Setting down the foundations 25 1 Whose public? Which law? Mapping the internal/external distinction in international law 27 PETER G. DANCHIN 2 The potential for a post-Westphalian convergence of ‘public law’ and ‘public international law’ 53 CHARLES SAMPFORD PART II Internationalising public law 73 3 Globalisation and public law: A global administrative law? 75 SIMON CHESTERMAN 4 The deliberative deficit: Transparency, access to information and UN sanctions 92 DEVIKA HOVELL 5 Who guards the guardian? Towards regulation of the UN Security Council’s Chapter VII powers through dialogue 123 HITOSHI NASU vii viii contents 6 Holding the United Nations Security Council accountable for human rights violations through domestic and regional courts: Acaseof‘be careful what you wish for’?143 ERIKA DE WET PART III Implementing Security Council sanctions 169 7 ‘A delicate business’:DidAWB’s kickbacks to Iraq under the United Nations Oil-For-Food Programme constitute a violation of Australia’s international obligations? 171 KEVIN BOREHAM 8 Should the United Nations Security Council leave it to the experts? The governance and accountability of UN sanctions monitoring 191 JEREMY FARRALL PART IV The place of corporations 215 9 The nexus between human rights and business: Defining the sphere of corporate responsibility 217 JUSTINE NOLAN 10 At the intersection of international and municipal law: ThecaseofCommissionerColeandtheWheatExport Authority 239 LINDA BOTTERILL AND ANNE MC NAUGHTON PART V Theroleoflawyers 261 11 International legal advisers and transnational corporations: Untangling roles and responsibilities for sanctions compliance 263 STEPHEN TULLY 12 What is the right thing to do? Reflections on the AWB scandal and legal ethics 289 VIVIEN HOLMES PART VI Public law and public policy 311 13 Who’s responsible? Justiciability of private and political decisions 313 DANIEL STEWART contents ix 14 AWB and oil for food: Some issues of accountability 334 RICHARD MULGAN PART VII Parallel case studies 353 15 Discriminating for world peace 355 SIMON RICE 16 Removing barriers to protection at the exported border: Visas, carrier sanctions and international obligation 378 ANGUS FRANCIS Concluding remarks 407 THOMAS POGGE Bibliography 418 Index 439 CONTRIBUTORS Editors dr jeremy farrall is a Research Fellow at the Centre for International Governance and Justice, in the Regulatory Institutions Network at The Australian National University. He has worked extensively for the United Nations, serving as a political officer in the UN Security Council in New York, with the UN Mission in Liberia and on the UN Secretary-General’s Mission of Good Offices in Cyprus. He is the author of United Nations Sanctions and the Rule of Law (2007) and co-editor of The Role of International Law in Rebuilding Societies after Conflict (2009). professor kim rubenstein is Professor and Director of the Centre for International and Public Law (CIPL) in the ANU College of Law, The Australian National University. A graduate of the University of Melbourne and Harvard University, Kim’s current research projects are at the cutting edge of the intersection between public and international law. Her public law work spans constitutional and administrative law, and also includes her expertise in citizenship law. Her international law work focuses on the status of nationality. Her book, Australian Citizenship Law in Context (2002) represents the foundation of her continued scholarly work, looking at the disjuncture between the exclusive legal notion and the more inclusive normative understanding of citizenship. Other Contributors kevin boreham has taught at the ANU College of Law since 2002. Kevin’s area of academic interest is international law, particularly the international law of human rights. Kevin practised as a solicitor in private practice in Canberra from 1999 to 2001. Kevin’s first career was as an officer of the Australian Department of Foreign Affairs and Trade. x list of contributors xi He served in Australia’s diplomatic missions in Colombo, Hanoi, Manila, Tehran and New York, where he was Australian Deputy Permanent Representative to the United Nations from 1987 to 1989. Kevin’s work in Canberra specialised in multilateral and regional issues. Among other appointments, Kevin was Assistant Secretary, International Organisations Branch from 1992 to 1994. dr linda botterill joined the Research School of Social Sciences at The Australian National University as a fellow in 2006. Linda’sresearch interest is in public policy development with a focus on the role of values and expertise in the policy process. Her main research areas are rural and regional policy, particularly in the areas of drought policy and the grains industry. Before commencing her academic career, Linda had extensive experience in public policy development in the Australian Public Service, as a ministerial adviser and as a policy officer in two industry associations. She is co-editor of and contributor to two interdisciplinary books on drought in Australia: Beyond Drought: People, Policy and Perspectives (2003) and From Disaster Response to Risk Management: Australia’s National Drought Policy (2005). professor simon chesterman is Global Professor and Director of the New York University School of Law Singapore Programme, and an Associate Professor of Law at the National University of Singapore Faculty of Law. From 2004 to 2006 he was Executive Director of NYU’s Institute for International Law and Justice, where he remains a senior fellow. Educated in Melbourne, Beijing, Amsterdam and Oxford, Chesterman has written widely on international institutions, international criminal law, human rights, the use of force and post- conflict reconstruction. Prior
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