Informal International Law

Toward Global Checks and Balances

Eyal Benvenisti

Abstract

Inter-governmental coordination has become a prerequisite for the regulation of markets, of the environment, even of national security. From a democratic perspective, the negative aspects of such transnational coordination are the lesser opportunities it provides for public participation in decision-making and the limited mechanisms it offers to ensure accountability of the coordinating agencies. Inter- governmental coordination offers domestic interest groups and government officials means to circumvent domestic democratic and supervisory processes that had developed over the years through the efforts of civil society, legislatures and courts. The paper describes the two main modalities for intergovernmental coordination – inter-governmental organizations and informal transnational institutions – and assesses the challenges they pose to the democratic idea. The paper also surveys the potential review venues of these two modalities, including review by international institutions and by national courts. The paper argues that national courts may prove to be the most effective venues for review, and explains their motivation and strategy. It argues that national courts are aligning their positions because they too have realized that inter-judicial coordination has become a prerequisite for performing their traditional task of judicial review.

I. Background: The New Modalities of Inter-governmental Coordination

Intergovernmental coordination has become a prerequisite for the regulation of markets, of the environment, of various other aspects of human activity, even of national security. From a democratic perspective, the negative aspects of such transnational coordination are the lesser opportunities it provides for public participation in decision-making and the limited mechanisms it offers to ensure accountability of the coordinating agencies. Inter-governmental coordination offers domestic interest groups and government officials means to circumvent domestic democratic and supervisory processes that had developed over the years through the efforts of civil society, legislatures and courts.1 This Section describes the two main

 Preliminary draft. Please do not cite without the author’s prior approval 1 Eyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167 (1999). 2 modalities for intergovernmental coordination, as a prelude to the assessment of the challenges they pose to the democratic idea (Part II) and of the evolving responses to these challenges by inter-governmental institutions and primarily by inter-judicial coordination (Part III). Indeed, this paper seeks to demonstrate that courts are realigning their positions because they too realize that inter-judicial coordination has become a prerequisite for performing their traditional task of judicial review.

Inter-governmental institutions (IOs) shielded many governments from domestic scrutiny. The largely opaque negotiation processes of international agreements setting up IOs, the delegation of decision-making power to the IO’s bureaucracy, provided less accurate information to the domestic legislatures and courts and lesser abilities to influence outcomes. Both legislatures and courts accepted their institutional inferiority relative to their government in conducting what was – and often still is – deemed “foreign affairs.”2 Operating at the governments level and the IO level, domestic interest groups could capture their governments more effectively, and government officials could increase their discretion without effective interference from other branches of government. International law added another layer of protection: IOs had an independent legal personality under international law. They enjoyed immunity from suits in national courts and were not subject to any national rules prohibiting antitrust or protecting creditors against insolvency.

But the move to IOs proved to be just a pause in the continuing flight from domestic accountability. The violent clashes in Seattle in 1999 signaled that NGOs representing or claiming to represent civil society have discovered IOs as the new fora for policy making and started to demand access and participation. NGOs had proved themselves quite influential in exploiting differences among Northern governments and thereby determining the outcomes of international conferences that set up new IOs such as the International Criminal Court and new rules such as the ban on personal landmines. NGOs were knocking on the doors of the Appellate Body of the WTO seeking – and actually receiving at one point– the opportunity to present their views in a trade dispute. At the same time, governments found out that the bureaucrats and adjudicators they had appointed as functionaries in those IOs developed a mind of their own, often seeking to expand their own authority and to promote their own policies. Many governments began to seek more flexible alternatives that would allow

2 Benvenisti, Judicial Misgivings (1993). 3 them to retain control over outcomes without the interference of international bureaucracies or representatives of civil society.

Thus, in addition to the emergence of array of IOs, we see in recent years an even greater effort to develop ad-hoc or flexible, often informal and even private institutions (collectively called here informal transnational institutions, or ITIs). Some governments have explicitly expressed their preference for ITIs over IOs. In 2006 the

National Security Strategy of the United States describes one of its three priorities in its work with its allies as “Establishing results-oriented partnerships […]. These partnerships emphasize international cooperation, not international bureaucracy. They rely on voluntary adherence rather than binding treaties. They are oriented towards action and results rather than legislation and rule-making.”3 The same document also extols the so-called “coalitions of the willing,” suggesting that “[e]xisting international institutions have a role to play, but in many cases coalitions of the willing may be able to respond more quickly and creatively, at least in the short term.”4 A Directive issued in 2000 in Germany, required all German federal ministries to avoid using formal international legal instruments to cement their agreements with foreign parties. The Directive stipulated that negotiators should explore alternatives to formal international undertakings before they commit to such.5 Bureaucrats in other

3 http://www.whitehouse.gov/nsc/nss/2006/nss2006.pdf . This new term -- partnerships – was absent in the 2002 NSS statement. It connotes something more stable than the older term “coalitions of the willing” (which appears only once, in ref to the Tsumani aid) and less than formal institution. Like in: "To confront the threat of a possible pandemic, the Administration took the lead in creating the International Partnership on Avian and Pandemic Influenza, a new global partnership of states committed to effective surveillance and preparedness that will help to detect and respond quickly to any outbreaks of the disease." 4 Id., page 48 5 See § 72 Gemeinsame Geschäftsordnung der Bundesministerien of 2000: (1) “Vor der Ausarbeitung und dem Abschluss völkerrechtlicher übereinkünfte (Staatsverträge, übereinkommen, Regierungsabkommen, Ressortabkommen, Noten- und Briefwechsel) hat das federführende Bundesministerium stets zu prüfen, ob eine völkervertragliche Regelung unabweisbar ist oder ob der verfolgte Zweck auch mit anderen Mitteln erreicht werden kann, insbesondere auch mit Absprachen unterhalb der Schwelle einer völkerrechtlichen übereinkunft.” (Collective standing order for all federal ministries of 2000: "Before the planning and the conclusion of international agreements (international treaties, agreements, interministerial or interagency agreements, notes and exchanges of letters) the responsible federal ministry must always inquire whether the conclusion of the international undertaking is indeed required, or whether the same goal may also be attained through other means, 4 relatively strong and affluent nations indicated similar expectations if not formal directives.6

Obviously, there may be other reasons for the move from formal IOs to the more flexible ITIs. Some of them are hinted in the US national Security Strategy’s preference of effective results over burdensome processes. The contemporary ease of communications results in a significant increase and deepening of coordination efforts among national bureaucracies. Coordination no longer depends on the drafting of formal treaties through emissaries and diplomats. Instead, the relevant decisionmakers can negotiate and clarify mutual expectations directly by the simple exchange of phone calls or emails. The availability of communications and the need to use them bring diverse parts of national bureaucracies into direct contact, sometimes on a daily basis, with their foreign peers. When bureaucrats replace ambassadors and email exchanges provide information as reliable as a written treaty if not more, there is a growing temptation to evade the formal requirements of international treaty-making and the cumbersome decision-making processes. Beyond this efficiency argument, however, lurks the concern about captured decision-makers or their unfettered discretion. Informal standard setting can be viewed as ingenious new modalities of inter-governmental cooperation, but at the same time they could also be viewed as governmental concessions to powerful private actors. One typical example of private pressure is the functioning of the International Accounting Standards Board (IASB), an ITI that sets global standards for accounting. Mattli and Büthe document the pressures exerted on the IASB chairman by powerful donors to withdraw their financial support “if the IASB failed to show greater sensitivity to their policy preferences.”7 In light of the post-Enron decision in the US to make the funding to the American Financial Accounting Standards Board (FASB) involuntary,8 the voluntary funding of IASB reflects the creative ways through which private interests manage to maintain their pressure on regulatory functions. especially through understandings which are below the threshold of an international agreement.") (I thank Armin von Bogdandy for the reference). 6 “Because the use of MOUs [memoranda of Understandings] is now so wide-spread, some government officials may see the MOU as the more usual form, a treaty being used only when it cannot be avoided. The very word ‘treaty’ may conjure up the fearsome formalities of diplomacy.” (Anthony Aust, Modern Treaty Law and Practice 26 (2000). Aust has been a legal adviser at the British Foreign Office. 7 Mattli and Büthe, Global Private Governance: Lessons From A National Model Of Setting Standards In Accounting 68 Law & Contemp. Probs. 225, 254 (2005). 8 Mattli and Büthe, supra note # at 249. 5

Elsewhere I described the different modalities for informal inter-governmental coordination. 9 There are at least four types of ITIs: (a) informal government-to- government coordination that characterizes most spheres of activity of contemporary governmental action, including many government agencies such as central bankers, antitrust regulators, securities regulators, criminal enforcement agents, and environmental protection agencies, who harmonize their activities through informal consultations in informal venues, and implement them through their authorities under their domestic laws; (b) non-binding institutions that enable governments sharing common interests to coordinate activities vis-à-vis other states (prevalent in the context of non-proliferation of weapons, such as most recently the Financial Action Task Force (FATF) and the Proliferation Security Initiative (PSI)); (c) joint ventures between governments and private actors, like in the case of the Global Fund to Fight AIDS, Tuberculosis and Malaria, an entity that is constituted as an independent Swiss foundation; and finally (d) the delegation of authority to set standards to private actors, in areas where governments have been reluctant to act, or have simply preferred to let private actors perform such tasks, ranging from letters of credit and insurance to facilitation of transnational trade, safety standards, accounting standards, and even the setting of core labor rights for developing countries.

II. IOs, ITIs, and the Quest for Accountability and Participation

(a) Challenges in the Supply and Demand of Monitoring Mechanisms of IOs

With the move to IOs, outcomes at the supranational level started to be shaped less by the informal and opaque bargaining among governments that had characterized inter- governmental dealings, but increasingly more by structured decision-making processes at the IO’s prescriptive, monitoring and dispute-resolution levels. With the “legalization of world politics,”10 US laws aimed at protecting endangered species,11 Canadian laws aimed at protecting Canadian air quality,12 or French laws restricting

9.On these alternatives, see Eyal Benvenisti, “Coalitions of the Willing” and the Evolution of Informal International Law, in “COALITIONS OF THE WILLING”—AVANTGARDE OR THREAT? (C. Calliess et al. eds., forthcoming 2007), available at http://ssrn.com/abstract=875590; SLAUGHTER, supra note. 10 See the special issue of 54 International Organization, Summer 2000. 11 See the Shrimp-Turtles dispute, infra, note 37. 12 See the litigation under NAFTA concerning Canada’s law banning a fuel additive manifactired by a US firm: Ethyl Corp. v. Canada, Jurisdiction, Award (NAFTA Ch. 11 Arb. Trib., June 24, 1999), 6 trade in products containing asbestos fibers,13 were being challenged, reviewed and sometimes rejected as violations of supranational norms by international or regional institutions such as the World Trade Organization (WTO) or the North American Free Trade Agreement (NAFTA). The move to decisionmaking by IOs had at least two implications from the perspective of the domestic democratic process: The IO could prescribe new norms, and it could review national decisions. Prescription by IOs meant a delegation of domestic powers to supranational institutions, a delegation that could result in a reduction of the power that individual voters had in shaping policies. The delegation of political power to supranational institutions was more likely to affect adversely those larger and looser groups of voters, those who were less likely to form narrow interest groups and carry their demands beyond their country’s borders, where organization costs are often exorbitantly high. The smaller, usually more politically effective groups of employers and investors, who have lesser, if any, interest in maintaining welfare standards, who can pose a credible threat of exit, are those likely to increase their relative political power the further away from the voter the decision- making is made.14 Of course, from the perspective of the larger and looser groups in society, policy-making by IOs can be expected to be more transparent than by opaque inter-governmental negotiations. But the real loss in terms of accountability results from broadening the scope of activities of the IOs beyond the spheres that government tended to negotiate. In the context of IOs, the quest for accountability and democratic participation focused on the opportunities to have “voice without a vote,” or more accurately, “voice without a direct vote.” This is because the decision-making structure in most cases does not allow for direct representation of voters. Several IOs, such as the WTO, and initially also the EU, justified their restrictions on public participation by referring the individuals to their respective domestic processes through which they could influence their governments. From the perspective of voters we speak then not of direct democracy, not even of indirect democracy, but of a doubly-indirect reprinted in 38 ILM 708 (1999); see Alan C. Swan, Case Report: Ethyl Corporation v. Canada, 94 AJIL 159 (2000). Subsequently Canada rescinded the law and paid compensation. Other firms have used the NAFTA procedure to sue the US and Mexico. See Chris Tollefson, “Games Without Frontiers: Investor Claims and Citizen Submissions Under the NAFTA Regime” 27 Yale J. Int’l L. 141 (2002). 13 European Communities – Measures Affecting Asbestos and Asbestos-Containing Products AB- 2000-11, WT/DS135/AB/R 12 March 2001. infra, note 40. 14 Eyal Benvenisti, “Exit and Voice”, based on Mancour Olson, The Logic of Collective Action (1965). 7 democracy: voters vote in national elections, and then their representatives appoint and direct their representatives to the supranational forum. But for many, this type of indirect influence was seen is quite ineffective. Some have sought to establish open channels of communications between the IOs and the public. This was the view of the German Constitutional Court when it approved Germany’s ratification of the Maastricht Treaty.15 In an integrated European Union, reasoned the Court, the demand for democracy will be satisfied if the union will provide an “ongoing free interaction of social forces, interests, and ideas, in the course of which political objectives are also clarified and modified, and as a result of which public opinion moulds political policy.”16 To remain true to the ideal of domestic democracy, in the Court’s view, “it is essential that both the decision-making process amongst those institutions which implement sovereign power and the political objectives in each case should be clear and comprehensible to all, and also that the enfranchised citizen should be able to use its own language in communicating with the sovereign power to which it is subject.”17 The question that remains is what mechanisms are available at the level of the supranational institution to ensure open channels of communications. The debate about democratic deficit at the EU, and the relatively opacity of the WTO’s rather informal prescriptive process18 suggest that transparency and participation remain challenges to the ideals of accountability and democratic participation. NGOs representing diverse interests can sometimes use this opacity to present their views and gather information,19 but this influence remains a matter of discretion for states who find it opportune to support some NGOs on a certain matter under discussion. Widening the avenues for participation remains an uphill battle waged by several NGOs. A particularly troubling aspect of accountability and participation in multilateral IOs such as the WTO is the lack of voice of the majorities in the developing world. Several Southern governments have long resisted transparency in WTO processes so as to preempt NGO pressure to improve labor standards. In

15 Federal Constitutional Court Decision concerning the Maastricht Treaty, of October 12, 1993 (trans. in 33 I.L.M. 388 (1994)), at p. 420. 16 Id., id. 17 Id. id. 18 See Benvenisti … in The Welfare State, Globalization and International Law (2004). 19 See Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO (1998) J. OF INT’L ECON. LAW 433. For a recent appraisal of the debate see Eric Stein, International Integration and Democracy: No Love at First Sight, 95 AJIL 489, 504-09 (2001). 8 contrast, the UNDP and the World Bank have become aware of this matter and have begun to address this challenge.20 The second implication for the principles of democracy and accountability stemming from the delegation of decision-making authority to IOs is often the added layer of review provided by the IO’s bureaucratic and adjudicative bodies. These could at times provide added protection against unchecked governmental exercise of domestic power. For countries that did not have effective domestic checks – like in the case of the United Kingdom before the adoption of the 1998 Human Rights Act – external checks improved the quest for accountability, democratic participation and the protection of individual rights. But for countries whose domestic supervisory institutions had been robust, like the German or the French constitutional and administrative courts, the added layer of external review – the European Court on Human Rights and the European Court of Justice – was more of a mixed blessing. In general, it is safe to suggest that external supervisory bodies will add to the quest of domestic accountability if the domestic bodies do not offer adequate protection (like, for example, if they do not protect minorities), but otherwise might detract from the effectiveness of properly functioning domestic supervisory bodies. Other things being equal, and perhaps counterintuitively, it should be noted that international courts are likely to be more amenable to governments’ interests than national courts are.21 Governments control nominations and budgets to international tribunals, and they also retain the ability to exit institutions they do not like if they are unhappy with the outcomes.22 Moreover, the national courts in most democracies enjoy greater domestic

20 The World Bank in particular has been quite successful in strengthening the capacities of southern NGOs: see World Bank, “Capacity Building of Southern NGOs - The Experience of the World Bank” (available in http://wbln0018.worldbank.org/essd/essd.nsf/); World Bank, “The World Bank and Chinese NGOs” (available at www.worldbank.org.cn/English/Partnership/NGOOverview1.shtml) (reporting that according to official Chinese statistics, the number of Chinese NGOs reached 165,600 by the end of 1998). For a general discussion of this issue see Olena P. Maslyukivska, “Role of Nongovernmental Organizations in Development Cooperation Research Paper,” UNDP/Yale Collaborative Programme, 1999 Research Clinic, New Haven 1999 (available at http://www.undp.org/ppp/library/files/ maslyu01.html); Michael Edwards, David Hulme and Tina Wallace, “NGOs in a Global Future: Marrying Local Delivery to Worldwide Leverage” (Conference Background Paper, Birmingham 1999) (available at www.gdrc.org/ngo). 21 See Tom Ginsburg, Bounded Discretion in International Law Judicial Making, 45 Va.J.Int’l L. 631, 656-668 (2005) (describing the various strategic limits on judicial discretion of international tribunals). 22 This is inherent in the practice of fragmenting international law. See Eyal Benvenisti & George W. Downs, The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60 STAN. L. REV. (forthcoming 2007). On exit from treaties, an option unavailable in domestic law, see Tom Ginsburg, Bounded Discretion in International Judicial Lawmaking, 45 VA. J. INT’L L. 631, 658 (2005); Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579 (2005). 9 legitimacy than do international tribunals. These factors may explain the international tribunals’ relative lack of autonomy in comparison to national courts. In comparison with the domestic judicial processes, which had evolved over the years, shaped by relatively independent judiciary and democratically elected legislatures, the more recent, and government-dominated adjudicative process in many by IOs leaves much to be desired from the point of view of public participation. One striking example is the dispute settlement bodies of the WTO. The WTO procedures maintain secrecy. Litigation before the Panels and the Appellate Body are closed to WTO members that are not parties to the litigation and to the general public. Calls for transparency focus therefore on making all parties’ submissions available to the public and on enabling the general public to observe the proceedings using various tools, including webcasting.23 Suggestions for enabling the flow of communication from the public to the adjudicators concentrate on the possibility of submitting amicus briefs to the panels and the Appellate Body. Initially, the Appellate Body has shown at least initial inclination to consider amicus briefs.24 But ultimately it had to practically bow to the pressure of several Southern governments that rebuked the AB’s unwarranted activism.25 Of course, when membership in an IO is more limited, and consist of parties that share similar goals (or for whom exit is not a valid option), the IO’s decision-making processes can be more accessible. In 2001 a NAFTA tribunal decided that it had authority to consider an amicus brief submitted by a Canada-based NGO. In support of its request to submit a brief, this NGO argued that only amicus briefs will provide the necessary focus on environmental concerns, and that the tribunal should take these concerns into consideration.26 In this case, no angry governmental protests were recorded.

(b) Challenges in the Supply and Demand of Monitoring Mechanisms of ITIs

23 See the US submission, supra note . 24 For a detailed analysis of the Panels’ and Appellate Body’s authority to consult amicus briefs see Petros C. Mavroidis, Amicus Curiae Briefs Before The WTO: Much Ado About Nothing, Jean Monnet Paper No. 2/01 (available at http://www.jeanmonnetprogram.org/papers/papers01.html). 25 26 in a dispute between a Canadian producer of a gasoline additive and the United States that had banned its use: http://www.iisd.org/trade/investment_regime/htm 10

There are two types of responses to the concerns with the lack of accountability of ITIs and with the lack of opportunities for participation in their decisions. The first response focuses on the formal retention of decisional authority by the national administrative agencies, as the informal coordinations with foreign officials do not constitute formal delegation of authority. Therefore, the argument goes, the same tools citizens have always used to monitor governmental agencies and to participate in their decisionmaking processes remain as relevant and as effective as ever. The second response highlights the professionalism and impartiality of the nongovernmental decisionmakers who are involved in the process.27 Expertise is often presented as an alternative to accountability.28 This may be true, at least to some extent, for informal institutions that can be found in the domestic sphere.29 In the domestic setting, the traditional tools to ensure accountability and participation can be backed up by recourse to the legislature or to the court to restrain runaway agencies. But the same is not necessarily true for informal transnational institutions. The motivations of interest groups and the executive to resort to formal coordination through IOs that were mentioned above resonate also in the context of the move to set up ITIs: by moving to inter- governmental bargaining, and also to bargaining between governments and different private actors, the issues and the impact of outcomes become more opaque to civil society. In such circumstances of relatively little information, the opportunity to capture officials by interest groups, the impact of pressure by foreign governments, are at their height. At the same time, because the legislature and the domestic court have traditionally found themselves institutionally less adept to intervene in the way their government conducts its foreign ties with other governments and international institutions, these institutional checks on governmental action may not offer a comparable monitoring service. Hence the demand for institutional restraints on the government acting through ITIs is at its height while the supply side is wanting.

27 See Jody Freeman, The Private Role in Public Governance 75 NYU L. Rev. 543 (2000) at 666 (“Public/private arrangements can be more accountable because of the presence of powerful independent professionals within private organizations. The background threat of regulation by an agency can provide the necessary motivation for effective and credible self-regulation. The two principal partners in a regulatory enterprise (the agency and the regulated firm, or the agency and the private contractor) might rely on independent third parties to set standards, monitor compliance, and supplement enforcement.”). 28 For criticism see David Kennedy… 29 Those described by Freeman, supra note #. 11

III. Toward a Realignment of Global Checks and balances? Assertion and Reassertion of Authority to review Inter-Governmental Action

This Part describes new modalities for reasserting review authority over IOs and ITI decision-making procedures and over their decisions. Section (a) mentions the possibility of internal IO review, Section (b) discusses the possible evolution of inter- IO review. Section (c) describes the rather surprising reaction of national courts.

(a) Internal IO Review Some IOs have internal procedures that can provide internal review. The EU is a clear example here. In other IOs, such procedures are less explicit and their evolution depends on the will of the internal actor to assert such authority. One case in point is the International Court of Justice that despite several requests by states, by the General Assembly and by another IO (the WHO), to review UN Security Council Resolutions either directly or indirectly. Internal review, however, depends much on the willingness of the governments involved to tolerate such review. It is not difficult to assume that the potential angry reaction by the Permanent Members of the Security Council was high on the minds of the ICJ judges when they decided not to assert review powers. Although initially the ICJ agreed to examine a decision of the General Assembly to set up the UN Administrative Tribunal,30 finding implicit authority in the UN Charter, it later signaled its disinclination to serve as the judicial review organ of the UN.31 When Security Council Resolutions aimed at restoring “international peace and security” under Chapter VII came to the fore, the ICJ backed down. Despite much scholarly criticism,32 the ICJ did not accept the invitation to second-guess the legality

30 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1953-1954) 1954 I.C.J. Reports 47 (Advisory Opinion of 13 July 1954). 31 "Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of decisions taken by the United Nations organs concerned." Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. Reports 16, at para. 89 (Advisory Opinion of 21 June 1970). 32 A sample of this rich debate includes: Jose E. Alvarez, Judging The Security Council 90 A.J.I.L. 1 (1996); Thomas M. Franck, The "Powers of Appreciation": Who Is the Ultimate Guardian of UN Legality?, 86 AJIL 519 (1992); W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83 (1993); Ken Roberts, Second-Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review, 7 PACE INT'L L. REV. 281 (1995); Edward McWhinney, The International Court as Emerging Constitutional Court and the Co-ordinate UN Institutions (Especially the Security Council): Implications of the Aerial Incident at Lockerbie, 1992 CAN. Y.B. 12 of the Security Council’s Resolution to impose sanctions on Libya.33 It did accept the request of the General Assembly to give an advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,”34 despite the fact that the Security Council had made an earlier resolution on “the situation in the Middle East, including the Palestinian question,” and had decided to “remain seized of this matter.”35 But it went out of its way to emphasize the extraordinary circumstances of the singular situation, so that it would not be viewed as a challenge to the Security Council’s authority and set a precedent for future intervention.36 In general it can be said that the evolution of review possibilities within IOs will be shaped by the specific political constraints and the factors influencing the balance of powers between governments within each of the institutions.37 In other words, with strong governmental influence, the potential for the emergence of robust review possibilities is not very significant.

(b) IOs Reviewing Each Other

Inter-IO review constitutes a potential effective form for inter-institutional review. There are several international judicial bodies that have ample opportunities to pass judgment over decisions of other institutions. The European Court of Justice, the

INT'L L. 261; Geoffrey R. Watson, Constitutionalism, Judicial Review, and the World Court, 34 HARV. INT'L L.J. 1 (1993); Vera Gowlland-Debbas, The Relationship between the International Court of Justice and the Security Council in Light of the Lockerbie Case, 88 AJIL 643 (1994). 33 Case Concerning Questions of Interpretation And Application of The 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya V. United States of America), Request For The Indication Of Provisional Measures, 14 April 1992. 34 The General Assembly’s Resolution is Resolution ES-10/16 (3 December 2003). For the Advisory Opinion see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion, ICJ Reports 2004, 136 (9 July 2004). 35 Security Council Resolution 1515 (19 November 2003). 36 Legal Consequences, supra note 61, at paras. 49-50 (“The responsibility of the United Nations in this matter also has its origin in the Mandate and the Partition Resolution concerning Palestine (…). This responsibility has been described by the General Assembly as ‘a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy’ […] The object of the request before the Court is to obtain from the Court an opinion which the General Assembly deems of assistance to it for the proper exercise of its functions. The opinion is requested on a question which is of particularly acute concern to the United Nations.”). 37 Eyal Benvenisti, Factors Shaping the Evolution of Administrative Law in International Institutions, 68 LAW & CONTEMP. PROBS. 319 (2005). 13

European Court on Human Rights, The International Court of Justice, The Appellate Body of the WTO are some of the key candidates for assuming this role. One example that can demonstrate the promise and also the limits of inter-IO review is the recent litigation concerning the “smart sanctions” regime imposed by the Security Council on individuals involved in the financing of global terrorism. Both the ECHR and the ECJ were seized with petitions against the EU’s and the member states of the ECHR’s compliance with those sanctions that included the freezing of bank accounts of individuals without a prior (or subsequent) hearing. The interim judicial outcome – two decisions of the ECJ court of First Instance in 200538 --signaled that court’s willingness to review Security Council Resolutions under the elusive concept of jus cogens.39 Although this court did not declare the specific resolution as incompatible with jus cogens, the Security Council’s Counter Terrorism Committee amended the proceedings to provide a basic hearing procedure. The promise of inter-IO review is to be doubted if only because a basic IO strategy is to cooperate with other IOs. The collective tit-for-tat that can develop among them is likely to lead them to adopt a policy of mutual respect. Such a policy is demonstrated in the context of inter-judicial relations. The plurality of international courts raises the specter of inter-judicial competition over litigants. Realizing that such a competition is likely to hurt them all, these courts have adopted an attitude of mutual respect.40

(c) The Emergence of Trans-Judicial Checks on IOs and ITIs

We are then left with the more traditional but so far highly ineffective venue for review of governmental action in foreign affairs – the national courts. But here the surprising news are that it is increasingly apparent that national courts in several democracies are starting to depart from their traditional deference to their governments in the realm of external affairs. At least in some key areas they have begun to adopt a more assertive position vis-à-vis their governments. They do not let their governments the same free hand as in the past. Being the acute political actors that they are, these courts have apparently come to realize that, under conditions of 38 Kadi and Yusuf, now pending before the Grand Chamber 39 40 14 increased inter-governmental interaction through either more formal IOs or the more flexible ITIs, allowing the government to act freely in world politics would impoverish the domestic democratic and judicial processes and reduce accountability and the opportunity of most citizens to use these processes to shape outcomes. These courts may have concluded that, by aggressively restricting their government, they can actually enhance accountability, revive the domestic democratic processes and secure their own autonomy. Of course, not all courts will be equally keen to safeguard the domestic political process. Courts in more powerful countries can be expected to show less sensitivity to the exposure of their government to external pressures in inter- governmental decisionmaking. Given American dominance in setting global standards, we can anticipate less involvement by the U.S. federal courts in the President’s conduct of diplomacy, and in fact, this is precisely what emerges from the rather hesitant jurisprudence of the U.S. Supreme Court in this context.41 There are two areas where transjudicial cooperation that involves review powers has by now emerged: the judicial review of global counterterrorism measures and the determination of status and rights of asylum seekers in destination countries.

Review of Global Counterterrorism Measures: More than six years into the coordinated global effort against Al-Qaeda and its associated groups, it has become increasingly clear that the persistent attempts by the executive and legislative branches of a number of democracies to curtail judicial review of counterterrorism policies have, by and large, failed. These governments have not succeeded at convincing their courts to defer judgment and, in fact, have generated a counter- reaction on the part of the judiciary. Hesitant at first, the courts regained their confidence and are asserting novel claims that bolster their judicial authority. In light of a variety of resolute judicial reactions, expressed by courts in several democracies (even if less strongly by the US Supreme Court) with respect to their executive’s security-related claims since September 11th, it is possible to now speak of a new phase in the way democracies are addressing the threat of terrorism: executive unilateralism is being challenged by national courts in what could perhaps be a globally coordinated move.42 This emerging judicial dialogue has included the British

41 See infra notes ##. 42 see Eyal Benvenisti, Inter-Judicial Cooperation to Secure Independent Review of Counter-Terrorism Measures, in DEMOCRACY, SEPARATIONS OF POWERS AND THE FIGHTS AGAINST TERRORISM (Andrea 15 and Canadian courts, the courts in France, Germany, Hong Kong, India, Israel, and New Zealand, all in the context of limiting counterterrorism measures.43 These courts explore the international obligations of their respective states, making references to the texts of treaties on human rights and the laws of armed conflict, and to customary international law.44 They learn from each other’s constitutional law’s doctrines.45 They cite each other extensively in this process of interpretation.46 Moreover, they compare statutory arrangements in different countries as a way to determine the measures that minimally impair constitutional rights.47 They do so, being fully aware of their own role in the global effort to curb terrorism.48 The fact that national courts can rely on the same or similar legal norms (international treaties such as the 1949 Geneva Conventions and human rights law) facilitates harmonization among the courts.49 This accumulation of defiant judicial decisions from various jurisdictions paints a distinct picture of an evolving pattern in national courts. This trend stands in clear contrast to the passivity of legislatures towards the executive and to previous judicial trends. National courts are refusing to simply rubberstamp the actions of the political branches of government. They have unmistakably signaled their intention to constrain counterterrorism measures they

Bianchi & Alexis Keller eds., forthcoming 2008). 43 id, 44 The prohibition on torture has been the focus of several decisions, including Suresh, # A (FC) & Others (FC) v. Sec’y of State, 2005 U.K.H.L. 71, and Zaoui v. Attorney-General (No 2) [2006] 1 NZLR 289 (the New Zealand Supreme Court). The U.S. Supreme Court referred to the 1949 III Geneva Convention in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), and the Israeli Court has been actively engaged in the interpretation and implementation of the law on armed conflict. On the jurisprudence of the Israeli courts related to counterterrorism, see Yigal Mersel, Judicial Review of Counter-Terrorism Measures: The Israeli Model for the Role of the Judiciary During the Terror Era, 38 N.Y.U. J. Int'l L. & Pol. 67 (2005); Daphne Barak-Erez, The International Law of Human Rights and Constitutional Law: A Case Study of an Expanding Dialogue, 2 Int’l. J. Const. L. 611 (2004). 45 The Indian court, in the case of People's Union for Civil Liberties v. Union of India [2004] 1 LRI 1 (concerning the constitutionality of the Indian 2002 Prevention of Terrorism Act) refers (in para. 60) to the institution of the “independent counsel,” appointed in New Zealand and elsewhere. 46 See, for example, Lord Carswell’s opinion in the Belmarsh Detainees decision, A (FC) & Others (FC) v. Sec’y of State, 2004 U.K.H.L. 56 para. 150 (2004) (citing President Barak of the Israel High Court of Justice), on the need to follow the rule of law when combating terrorism). In A (FC) & Others (FC) v. Sec’y of State, supra note 62, concerning the admissibility of evidence obtained through torture by foreign officials, the Law Lords engaged in a comparative analysis of the jurisprudence of foreign courts, including Canadian, Dutch, French, German, and American courts, and, in particular, explored the decision of the Higher Regional Court of Hamburg in its El Motassadeq decision NJW 2005, 2326, June 14, 2005. 47 In the recent Charkaoui decision (supra note #), the Canadian Supreme Court presented the procedure adopted in the United Kingdom as a model for the Canadian Parliament’s consideration when it reenacts the statute (see especially id. para. 86: “Why the drafters of the legislation did not provide for special counsel to objectively review the material …as… is presently done in the United Kingdom, has not been explained.”). 48 People's Union for Civil Liberties v. Union of India, supra note #, at para. 10. 49 See Slaughter, Chapter 2. 16 deem excessive. As reflected in the reasoning in the decisions of many courts, they are seriously monitoring other courts’ jurisprudence, and their invocation of international law demonstrates knowledge and sophistication.

Determining Status and Rights of Asylum Seekers in Destination Countries: In the sphere of reviewing migration policies, we can notice a similar willingness of courts – in this case not all courts – to weigh in their judgment. In response to waves of asylum seekers from strife and poverty stricken regions, especially since the early 1990s, governments of developed countries have begun to modify their migration policies by restricting considerably the access of refugees and limiting their rights.50 Such restrictions increased the importance of the minimal obligations states owed to refugees under international law. The courts in these destination countries have played an important role in the process of shaping the policies toward the various asylum seekers who sought the courts’ protection from refoulement by immigration officers or border controllers. For obvious reasons, the migration policy adopted by one state had immediate effects on other states and the coordination of migration policies was of the essence for many states. Therefore, interjudicial cooperation was necessary in order to stand up to the domestic political efforts to reduce the flow of refugees without incurring the “costs” of rendering their jurisdiction the prime target of refugees. During the 1990s national courts dealing with asylum seekers began citing each other’s interpretation of the 1951 Convention Relating to the Status of Refugees, in particular its key provision regarding the definition of a “refugee.”51 This Convention provided a basis for coordinating a shared judicial position that often enabled these courts to strike down restrictive governmental policies without risking

50 On the modifications introduced by destination states since the early 1990s see JANE MCADAM, COMPLIMENTARY PROTECTION IN INTERNATIONAL REFUGEE LAW (2007); Liza Schuster, A Comparative Analysis of the Asylum Policy of Seven European Governments 13 J. REFUGEE STUDIES 118 (2000) and the special issue of Vol. 13 of the J. Refugee Studies devoted to the policies of European countries; Karin Oellers-Frahm & Andreas Zimmermann, France's and Germany's Constitutional Changes and Their Impact on Migration Law: Policy and Practice, 38 GERMAN Y.B. INT'L L. 249 (1995); James C. Hathaway, Harmonizing for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 Cornell Int'l L.J. 719 (1993), Gerald L. Neuman, Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment, 33 VA. J. INT'L L. 503 (1993). 51 In particular the qualification for refugee status was discussed. See Article 1A(2) of the Convention relating to the Status of Refugees, 189 U.N.T.S. 150 (1951): "For the purposes of the present Convention, the term 'refugee' shall apply to any person who: ... (2) ... owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ... ." 17 the influx of immigrants. This is not to suggest that the courts were always unanimous on each and every aspect of the elaborate qualifications of a “refugee.” But what comes clear when reading several key decisions of the highest courts of the majority of the destination states is the judicial effort to offer a contemporary and consistent meaning to the 1951 convention, that would expand the definition of a “refugee” beyond the one envisioned in 1951, and despite the concerns of contemporary governments.52 The picture that emerges from reviewing the way courts employ foreign and international law is complex, but it indicates that foreign and international law have become effective tools for inter-judicial coordination, and that courts tend to resort to such tools either to protect the independence of the domestic political branches from external pressures or protect their own independence (from encroachment by their governments). What is significant is that the courts have identified international law as a tool that no longer governs the relations between states only, but as a tool that can regulate the relations between governments and courts, and can be used – by both sides – for their common or diverging purposes.

In theory, we can expect cooperation in other spheres where judicial alliances could facilitate the confrontation with foreign actors that seek to preempt the domestic political processes or to pressure them into compliance. Cooperation among courts of developing countries can, for example, develop in the area of trade law, in reaction to pressures from foreign companies to enforce trade or trade-related norms through decisions of international institutions or pressure on governments. Resisting courts could invoke other international norms, such as human rights or environmental law, or constitutional principles such as the right to life, to counter claims based on general trade law or specific treaties. A possible harbinger of this trend is the recent decision of the High Court in Madras in the case of Novartis v. India,53 where the court refused to adjudicate Novartis’s claims that the changes to the Indian patent law violated India’s obligations under the TRIPS Agreement. The court reasoned that the TRIPs agreement was essentially a contract between state parties who had an agreed venue where disputes could be resolved. This seemingly technical reasoning did hint at the

52 See Benvenisti Reclaiming Democracy (2007) 53 Judgment of August 6, 2007. Available at http://judis.nic.in/chennai/qrydisp.asp?tfnm=11121 (last visited September 17, 2007). 18 underlying concern, the constitutional right to health:54 at stake was the patentability of Gleevec, a life saving drug for leukemia patients, and the continued supply of the much cheaper generic version by Indian companies to patients in India and other developing countries. The theoretical explanation of this new phenomenon should focus on the motivations of the national courts and on the logic of inter-judicial coordination. A national court that reviews policies that had been collectively adopted by governments enhances not only the accountability of the executive but also its own authority to interpret and apply national law and the law of the IOs of which its state is party to. The move to IOs, as much as it meant less discretion to national administrative agencies, also meant a challenge to the national courts. The most effective way to respond for national courts to this challenge is to engage in a dialogue with the international tribunals, for two reasons. As a purely doctrinal matter, national courts are directly and indirectly engaged in the evolution of customary international law: their decisions that are based on international law are viewed as reflecting customary international law,55 and their government’s acts in compliance with their decisions will constitute state practice coupled with opinio juris. As such, international tribunals will have to pay heed to national courts’ jurisprudence. Hence, the more the national courts engage in applying international law, the more their jurisprudence constrains the choices available to the international courts when the latter deal with similar issues. Moreover, from the perspective of the complex interplay between international and national courts, the international tribunals are, to a certain extent, dependent on national courts, because they need the latter’s cooperation for implementation of their decisions.56 A national court that engages in a serious application of international law

54 “We have borne in mind the object which the Amending Act wanted to achieve namely, […] to provide easy access to the citizens of this country to life saving drugs and to discharge the [legislature’s] Constitutional obligation of providing good health care to it's [sic] citizens.” (id. at para. 19). 55 See, for example, the International Court of Justice judgment in Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14), available at http://www.icj- cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm (last visited Apr. 4, 2007) (examining national courts’ jurisprudence to assess the extent to which heads of state enjoy immunity in foreign courts). 56 On the interplay between a supreme court (as the principal) and lower courts (as its agents), see McNollgast, CONDITIONS FOR JUDICIAL INDEPENDENCE (Research Paper No. 07-43, Apr. 2006), available at http://ssrn.com/abstract=895723; McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631 (1995). The dependence of an international tribunal on national courts that are not formally bound by its decisions is even greater. The tense relations that developed between the European Court of Justice and some of the national courts, in particular the German and the Italian courts, confirm this theoretical observation. See Juliane Kokkot, Report on Germany in THE EUROPEAN COURT AND NATIONAL COURTS – DOCTRINE AND JURISPRUDENCE 77 (ANNE-MARIE SLAUGHTER, ALEC STONE SWEET AND J.H.H. WEILER, Eds., 1998); 19 sends a strong signal to international courts, that the national court regards itself an equal participant in the transnational law-making process and will not accept just any decision rendered by an international tribunal. Since the effectiveness of international tribunals depends on compliance with their decisions, they must anticipate the reaction of the national courts to those decisions and come to terms with their jurisprudence. In this sense, assertive national courts invoking international law can effectively limit the autonomy of the international tribunals. But this strategy lacks one crucial element for it to have effective impact: a united, coordinated judicial front. If only one national court were to adopt assertive policies, it would face the danger of being singled-out as the individual troublemaker, whose jurisprudence does not reflect general state practice. Its government could, therefore, be sidestepped when global forces seek out other governments, those unconstrained by their courts and, hence, more vulnerable to external pressure. Thus, courts seeking to enhance domestic institutions and processes must try to ensure a common interjudicial stance. The courts’ strategy is based on cooperation. A transnational united front amongst the highest domestic courts would ensure that no country will become a terrorist haven or face collective sanctions and that less peer pressure will be exerted on governments to ignore their courts’ judgments. Courts that wish to maintain a higher level of human rights protection within their jurisdiction but without turning into a terrorist haven or target, or without diverting the world’s asylum seekers to their shores, should also strive to forge a united front with their counterparts in other countries. In other words, interjudicial cooperation has become a strategic choice for national courts determined to protect their own authority and to reclaim domestic democratic processes. The optimal way for courts to initiate and maintain cooperation is through mutual exchange of information. Their judicial reasoning and outcomes convey information about their commitment to cooperating. More specifically, their reliance on the same or similar legal sources facilitates this communication and, to a considerable extent, signals their commitment. Both positive as well as negative messages can be communicated in this framework. Cooperative courts will be cited with approval and approbation by their counterparts, whereas courts that step out of

Bruno de Witte, Direct Effect, Supremacy, and the Nature of Legal Order, in THE EVOLUTION OF EU LAW 177-213 (PAUL CRAIG & GRAINNE DE BURCA, eds., 1999). 20 line by either refusing to give force to a new standard or by setting a different standard will be criticized, sometimes quite severely, in judgments.57 In other words, a court’s decisions function as signals to other courts about the former’s commitment to cooperation. These signals can embolden the other courts or weaken their resolve in the face of the same dilemmas. At times, specific judgments will have novel and eminently compelling statements that resonate amongst courts in other jurisdictions. Courts that wish to signal readiness to cooperate will tend to use the language other courts understand: comparative law (primarily comparative constitutional law) and international law.58 The use of comparative analysis is a signal that courts are willing to learn from one another, or are seeking support from other jurisdictions for their judgments, or both. More significantly, they learn from each other’s legal systems how to balance amongst the competing common interests and how to manage the conflicting common risks to their societies. They can compare statutory arrangements, such as, for example, conditions for detaining suspected terrorists, seeking the arrangement that minimally impinges on constitutional rights.59 Even more accessible than specific statutes are the constitutional texts, which often have similar provisions regarding such issues as the right to life, due process, equality, and fundamental political rights. And indeed, courts seeking cooperation do engage in comparative analysis in their judgments. This explains why comparative constitutional analysis has taken center-stage in the emerging jurisprudence on counterterrorism and in court decisions in developing countries concerning the right to healthy environment.60 But even more significantly, international law, the source of collective standards, has become a most valuable coordination tool for national courts. The ability of these courts to rely on the same or similar legal norms (international

57 For example the Italian Court of Cassation criticized in 2004 (Ferrini v. Federal Republic of Germany) a decision of the Greek Court of Cassation of 2000 (Prefecture of Voiotia v. Federal Republic of Germany), while the House of Lords’ criticized, in turn, the Ferrini judgment (in Jones, supra note 30, at paras. 22, 63). See Pasquale De Sena & Francesca De Vittor, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, 16 EUROP. J. INT’L L. 89, 101- 02 (2005), 58 And indeed, judgments discussed in Part III are replete with references to comparative constitutional law and in particular to international law as interpreted by other courts. The discord within the U.S. Supreme Court towards comparative constitutional law and its relative reticence in recent years to cite international law may perhaps be influenced by the relative robustness of the domestic processes in the U.S., which currently do not require judicial support. On the debate in the U.S. on this matter see supra note 1. 59 See the decisions of the Canadian, New Zealand and Indian courts, infra notes 60, 62 and 63 and accompanying texts. 60 See infra Part III(a) and (b) respectively. 21 treaties like the 1951 Geneva Convention Relating to the Status of Refugees,61 or human rights treaties) facilitates harmonization amongst them. By making references to each other’s interpretation of a shared text they not only signal readiness to cooperate, but also to certain extent impede the future retreat of one of them from the shared interpretation: As courts carefully watch each other, the one that backs away has to offer an explanation to its peers. However, the fact that the same norm is being applied does not render its implementation unproblematic for the relevant court. First, the norm’s content may entail deference to the national governments, the drafters of the international text in which the norm is anchored. Second, there is a significant variance amongst jurisdictions with respect to the status of international law within the domestic legal hierarchy. Third, the language of the domestic statute that incorporated the specific international treaty may have modified the specific obligation. But courts have devised ways to overcome these hurdles, if they so wish. They tap into the rich jurisprudence developed by international tribunals concerning “effective,”62 “evolutive,”63 or “systemic”64 interpretation of treaties or rely on the tribunals’ unsystematic ways of identifying customary norms.65 Moreover, they interpret domestic legislation based on the premise that the legislature does not intend to contravene international obligations. Finally, even domestically unincorporated treaties and custom are often treated as a relevant consideration for the executive when exercising its discretion under domestic authorizing statutes. While this is a theoretical model that suggests that judges would be behaving consistently with it even if they may not in fact be consciously following the logic of it, one finds several judicial remarks indicating that national courts are acutely aware of the need for a coordinated stance.66 Even the courts of the most powerful nations

61 See infra Part III(c). 62 HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT OF JUSTICE 227-28, 267-93 (1958). 63 See Rudolf Bernhardt, Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights, 42 GERMAN YBK. INT’L L. 11 (1999). 64 C. Maclachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 INT’L & COMP. L.Q. 279 (2005); D. French, Treaty Interpretation and the Incorporation of Extraneous Legal Rules, 55 INT’L & COMP. L.Q. 281 (2006). 65 See, e.g., Theodor Meron, Revival of Customary Humanitarian Law, 99 AM. J. INT’L L. 817, 819-20 (2005). Meron comments on the ICJ’s “complete failure to inquire whether opinion juris and practice support the crystallization of [the relevant Articles] into customary law.” Meron salutes this “more relaxed approach” and views it as “essential … to the effectiveness of customary law.” (Id.). 66 The lack of certainty regarding any such coordination lay at the basis of their earlier policy of deferment, see supra note 7 and accompanying text. 22 are concerned that “unilateral action by the courts of one nation”67 would not produce the desired outcomes. The House of Lords, for example, has stated that “international treaties should, so far as possible, be construed uniformly by the national courts of all states”68 and has even recently asserted that "it is not for a national court to ‘develop’ international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states.”69 In the context of coordinating migration policies, which is explored below,70 judges from several countries went beyond statements and established an institution to ensure uniformity. Courts need assurances that courts in other jurisdictions will enforce similar rules.

IV. Conclusion: Towards Global Checks and Balances? As governments increasingly realize that they have to coordinate their various activities with other governments, so do the national courts. The courts also respond to the potential competition from adjudicative bodies of IOs. In an era when governments are opting for alternatives to formal internal or international lawmaking, it is the national courts that are turning very seriously to comparative constitutional law and to international law. This is a surprising mirror image of the state of affairs that existed only a decade ago. The resourcefulness of both governments and courts suggests that the concerns about “the retreat of the state” may have been too pessimistic. Although the state has bled much of its ability to affect outcomes externally and even internally, its various branches have learned the art of transnational coordination. Through coordination they enhance their abilities to make and enforce policies, and also to check the other branch of government.

67 Note the quote from the Alvarez-Machain judgment, supra note 18, about the “advantage of the diplomatic approach … as opposed to the unilateral action by the courts of one nation” (emphasis added). 68 R. v. Bow St. Metro. Stipendiary Magistrate & Others, ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 244 (H.L.) (per Lord Hope of Craighead). See also Lord Hobhouse of Woodborough in R v Secretary of State for the Home Department, ex parte Adan; R v Secretary of State for the Home Department, ex parte Aitseguer [2001] 1 All ER 593, 616. 69 Jones (Respondent) v. Ministry of Interior (Kingdom of Saudi Arabia) (Appellants), 2006 U.K.H.L. 26 para. 63 (H.L.) (per Lord Hoffmann). 70 See infra Part III(c).