Accountability

Before the European Elections, Let’s Talk about Us, the Citizens

Posted on by Susanna Cafaro

A new event hosted by Università del Salento on April 5, 2019, Rectorate (Piazzetta Tancredi), open to the public:

 

CITIZENSHIP IN ACTION: IMPLEMENTING PARTICIPATORY DEMOCRACY IN THE EUROPEAN UNION

Ten years after the entry into force of the Treaty of Lisbon, the European Union is a democratic space, as its founding treaties officially recognize (art.10-11) TEU. Yet, many citizens don’t know their European civic rights and the potential of the Treaty of Lisbon – to enhance the role of the citizen at the center of the system – appears underexploited.

Which tools and channels can citizens activate to get involved in the European decisional process?

Could transparency in the EU legislative process be enhanced?

Is citizens’ legal protection guaranteed in any stage, as individuals and as members of communities and groups?

Are the core values of the Union guaranteed as well?

Can we really say that there is “no way back” on democratic guarantees?

 

These topics will be discussed with the audience by:

 

 

Onno Brower ( Freshfields Bruckhaus Deringer Law Firm – Amsterdam/Brussels)

Antonio Caiola (European Parliament Legal Service – Luxembourg)

Emilio De Capitani (European Parliament, King’s College- Brussels)

Claudia Morini (Università del Salento)

 

Chair: Susanna Cafaro (Università del Salento)

 

 

 A summary will be posted shortly after!

 

 

Scientific Coordination: Susanna Cafaro, Emilio De Capitani

Sustainable Development = Intergenerational Equity

Posted on by Susanna Cafaro

From the Development Education Program of the World Bank Group:

“What is Sustainable Development?

There are many definitions of sustainable development, including this landmark one which first appeared in 1987:

Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

— from the World Commission on Environment and Development’s
(the Brundtland Commission) report Our Common Future
(Oxford: Oxford University Press, 1987).

But what does this mean? What are the needs of the present? Take a minute and jot down five to ten needs that you have in your own life.

Have you listed any needs that conflict with one another? For example, if you listed clean air to breathe, but also listed a car for transportation, your needs might conflict. Which would you choose, and how would you make your decision? If within ourselves, we have conflicting needs, how much is that multiplied when we look at a whole community, city, country, world? For example, what happens when a company’s need for cheap labor conflicts with workers’ needs for livable wages? Or when individual families’ needs for firewood conflict with the need to prevent erosion and conserve topsoil? Or when one country’s need for electricity results in acid rain that damages another country’s lakes and rivers?

How do we decide whose needs are met? Poor or rich people? Citizens or immigrants? People living in cities or in the countryside? People in one country or another? You or your neighbor? The environment or the corporation? This generation or the next generation? When there has to be a trade off, whose needs should go first?

The Long and the Short of It

People concerned about sustainable development suggest that meeting the needs of the future depends on how well we balance social, economic, and environmental objectives–or needs–when making decisions today. Some of these needs are itemized around the puzzle diagram.

What social, economic, or environmental needs would you add to the puzzle?

Many of these objectives may seem to conflict with each other in the short term. For example, industrial growth might conflict with preserving natural resources. Yet, in the long term, responsible use of natural resources now will help ensure that there are resources available for sustained industrial growth far into the future.

Studying the puzzle raises a number of difficult questions. For example, can the long term economic objective of sustained agricultural growth be met if the ecological objective of preserving biodiversity is not? What happens to the environment in the long term if a large number of people cannot afford to meet their basic household needs today? If you did not have access to safe water, and therefore needed wood to boil drinking water so that you and your children would not get sick, would you worry about causing deforestation? Or, if you had to drive a long distance to get to work each day, would you be willing to move or get a new job to avoid polluting the air with your car exhaust? If we don’t balance our social, economic, and environmental objectives in the short term, how can we expect to sustain our development in the long term?”

The notion of sustainable development highlights two different dilemmas:

I. How do we  balance  conflicting interests which can be equally important, ethically legitimate, both compelling? Admitting that evolution in technology, governance, infrastractures, investment flows may change the scenario in every moment: how can we adjust decisions over time? How will we avoid new imbalances?

II. How can we integrate in our evaluations the interests of future generations? How do we guarantee the rights of our children and grandchildren?

The answer are not simple ones, I even wonder if you or me or anybody else has such answers…

But, before working on the answers, we need to work on “how” we could arrive to such answers!

Mine may be the typical legal mind approach, but – follow me-  it has some merit:

I. We need to integrate in this evaluation all the possible perspectives. No matter how good a political decisor may be, the authority in charge cannot know everything. The largest the number of people having a say, the better. And we need to know who these stakeholders are: NGOs, civil society at large, lobbies, experts…. Whoever bears an interest should be invited to intervene, admitting that they declare who they are and what they stand for.

II We need the best data available at the moment of the decisions, and in case of conflicting or uncertain data a precautionary principle should stop doubtful decisions.

III Then, once the perspectives and the data are collected, the authority in charge – governments, parliaments, international organizations, agencies, technical authorities – should decide and take full responsability for their decisions. Systems of checks and balances should ensure proper accountability mechanisms. Procedures for claims are necessary. Affected individuals, at least through collective organizations, should be granted a right to dispute the decisions, and impartial courts and bodies should be in charge of these evaluations.

IV Finally, decisions affecting sustainable development should be revised if new data, new technologies or other relevant elements affecting the previous evaluations change.

How can we be sure that interests of future generations will be granted ? We just cannot.

It would be great to have an advocate for future generation in the main international fora, just imagine the representative of future generations as a member of the G20 (+1)!

As we are maybe not ready for that,  we can only hope that our grandsons and grandaughters, looking back at the way we managed their planet, will concede us that we did our best with what we had and using our current knowledge. Setting a good procedure.

 

Active Global Citizenship: Making the Climate Convention Work

Posted on by Susanna Cafaro

First published on Vocal Europe

 

We are all shocked because of the floods in Paris and across most of central Europe: from Germany to Belgium to Romania. We are scared for the increased frequency and violence of such exceptional climate events, we are worried for our future and the future of our sons.

Yes, some commentators pointed correctly out that this kind of events – as exceptional as they are – already happened in the past, but everybody agrees that global aggregated data on temperature rise are unprecedented, at least as far as we humans can record.

And no events like natural disasters make us feel more powerless, just victims or scared observers.

Still, an attempt has been done – if not to restore the previous climate conditions – at least to slow down this crazy growth of temperature by limiting the impact of our species on the Earth’s ecosystems, to make it finally sustainable. This is the Paris Agreement on climate change, adopted by consensus on 12 December 2015 by 196 delegations, signed by 177 states and already ratified by 17 of them.

Unfortunately, as ambitious as it is, the Paris Agreement is not enough.

In the text, which is the result of the twenty-first meeting of the Parties (COP21) of United Nations Framework Convention on Climate Change (UNFCC), the member states “…Acknowledging that climate change is a common concern of humankind”, commit to hold “ the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C”.

The goal, so, it is not a correction of the current situation, but just the effort to stop further worsening.

While the convention offers some interesting guidelines to help to reach the goal –subsidiarity, transparency, responsibility – unfortunately it does not provide any real enforcement mechanism nor sanctions in case of infringement. The respect of so important commitments depends solely on the good will of the signatories and on the peer- review mechanism every 5 years.

We know that this isn’t enough, but how could we – the citizens – do something about that?

Well, actually, we can do something.

Through an initiative called “citizens’ climate engagement network” we can all do something.

And I have to thank Joseph Robertson, global strategy director at Citizens’ Climate Lobby for starting this wonderful lab for the empowerment of citizens across the world.

He was right when he wrote to me some days ago: “supranational democracy is underway!”

CCEN could be defined as a new global framework to support and expand direct citizens’ and stakeholders’ engagement in the intergovernmental process, in the surveillance over the States and the way they keep their commitments, in promoting new ideas and ways to stop climate change.

In practice, anybody can host a local working session, to contribute local insights and experiences to the global climate policy process. A toolkit for local sessions is on-line, ready to use. A platform will provide exchanges of views inside this community of engaged citizens. Finally, an Advisory Coalition meets once a month to share insights, think through challenges to meeting the mission of the CCEN, which is to ensure any voice from anywhere with an idea worth sharing can be heard in the global conversation.

The governance is completed by a secretariat and a global team of local networks of leaders, stakeholders and collaborators. The mission is to build a global base of local knowledge, relating to the Paris Agreement, and to bring all the local insight into the COP22 negotiations, making all voices heard. So increasing the legitimacy and the accountability of and the inclusion into the Paris Convention framework.

Representatives from several UN agencies and dedicated NGOs joined the advisory coalition  in their personal capacity, and I’m very glad to be part of it. And the UNFCCC secretariat hosted the initiative in its newsroom. It’s getting big!

What is most relevant in this bottom-up exercise, we learned the lesson that organized citizens may take a stance for global goals, so filling the gaps of global governance. The CCEN is a precious lab. It shows how active global citizenship is possible, as a path towards a more democratic world.

The effort behind this accomplishment could be replicated for other goals, empowering communities of committed people to work together as active global citizens: I think of associations and NGOs promoting human rights, fighting poverty, claiming for women and children’s rights. And these are just examples.

If there is a lesson we can learn from the climate change challenge, it is this sense of belonging to the human family, sharing a “common concern” as humankind.

COP21_participants_-_30_Nov_2015_23430273715-897x494

 

Why Is Supranational Democracy so Difficult to Imagine?

Posted on by Susanna Cafaro

The inadequate attention that international organizations’ statutes  give to legitimacy, accountability and inclusiveness hails from the limited role that IOs played at the beginning of their history and from the subsequent scarce attention to democracy in a setting different from the national state.

In today’s different international context, it is worthwhile to challenge the unsurmountable hurdles stemming from the use of the word “democratic” in connection with an international organization.

Even though there isn’t a generally accepted theory of democracy – or more broadly of supranational democracy – in international organizations, we can examine the possible portability of the individual elements that make up this notion from the state level – for which they were originally created – to the international level. This is the experiment I’m almost obsessed about.

However, two kinds of difficulties arise from the fact that we are not considering a community of individuals, but of nations.

The first obstacle is the difficult applicability of the principle of equality, inherent in the notion of democracy. It is based on the concept of equal dignity for all human beings which leads to ignore and even amend the differences that give some people a “birth right” to succeed. All states are sovereign and therefore equal inside the international community, but this principle is nothing but a fictio. Far from wanting to ignore or minimize the differences, the international community focuses upon the preservation of the status quo, which is attenuated only by the shared goal of the sustainable development and protection of fundamental rights. Even when all the countries will get, as we hope, to share similar levels of prosperity, they would be far from equal. Too many facets help mark the differences: the size of territories, populations and economies, as well as the control over natural resources and the weapon supply.

As a consequence, several organizations agree on the principle that states are differently represented to reflect their different situations. Other ones simply ignore their substantial difference, but special provisions or practices make some States more equals than others.

Important scholar studies try to offer solutions to this dilemma, but there isn’t any adequate diffusion and sedimentation of shared assessments. The reflection on the subject has followed two clearly distinct lines: the statism theory, which sees international democracy as the result of the joint action of the states, as essential building blocks; and the doctrine inspired by cosmopolitanism and transnationality, which is based on the assumption of a global demos.

Even if an international organization achieved the perfect representation of all its members and was thus fully legitimate to act, we couldn’t conclude that it was also, indirectly, fully representative of their citizens. In fact, if some of its member states weren’t democratic, or only partly democratic, they wouldn’t be representative of all their citizens. According to the Democracy Index 2015 of the Economist Intelligence Unit, only 20 countries out of 167 are full democracies.

Such a lack of legitimacy is inevitably reflected on the state’s opinions and stands in the institutions of the IO it is part of and on the overall credibility of the institutions themselves. This is a difficult legal dilemma, that can only be solved if the organizations require their members to be democratic – as the European Union does (even if it should keep a closer eye on their evolutions). It is obvious that in organizations with a universal membership the issue must be labeled as “non permanently solvable”and shelved.

There is so a good point for the cosmopolitan approach: only building on some kind of legitimacy driven directly from the global demos we can overcome the “states obstacles” which are their inequality and their imperfect democratic representation.

Even so, the imperfect representativeness that we assume as inevitable, could be compensated by accountability, which can be fully obtained at the supranational level also by designing and experimenting new legal and institutional forms.

International organizations are not really equipped for substancial legitimacy as they are not for full accountability. New channels and tools need to be imagined to provide that their decisions and lines of actions reflect the values and the will of the people.We need new and fresh ideas, in line with the reality (and the technology) of an interconnected society. 

Unfortunately, we are now accessing the realm of imagination, and here there are two more powerful obstacles.

The first one is the power of the status quo: the resistance of political and economic elites, the power of traditions and cultural heritages and the trite old say “it has always been so”.

The second obstacle lies in the fact that economic and legal minds are not really educated to work with imagination, at least not on a big scale. It’s easy to imagine a new interpretation of a rule or a new financial product, but what about a whole new system? Do we feel really empowered to do that?

We hear almost every day that challenging the status quo, working with imagination, “disrupting” are the new frontiers for entrepreneurs and marketers, but this is also true for those who want to prove themselves on institutional engineering… and maybe change the world, for the better.

Human Dignity: the Value Behind the Values

Posted on by Susanna Cafaro

Yesterday, I was speaking with a famous law professor, defending my theory of democracy in international organizations – grounded on the three core values legitimacy, accountability and inclusion – when he said something that hit me deeply:

“democracy cannot but be grounded on human dignity”.

He was, obviously, right.

Had I forgotten the basic value of human dignity? Of course not. I had assumed it, taken it for granted. And this was a mistake, I have to recognize it.

Not only it was a mistake because it happens that the intrinsic value of every human being and every life is denied in many societies and especially to the weakest members of them, but also because if we want to understand each other on the meanings behind the words we cannot take anything for granted, we have a duty of clarity. After all, when I started this blog I took on this commitment, trying to define even words that everybody know, like democracy…. and I was forgetting such a meaningful ring in the chain of meanings!

How could we imagine a governance system legitimate by citizens, accountable towards citizens and inclusive of all citizens ….if citizens don’t have full dignity, just as human beings? Moreover, being all equally human beings, they all deserve the same respect and consideration, all enjoy the same fundamental rights.

This is clearly the grundnorm of every democratic system, what gives to legitimacy, accountability and inclusion their very meaning.

grafico dignity

There is another interesting consequence: all the citizens have the right to participate, all of them have the right to access the accountability tools (and this may even be considered a civic duty) but these are rights, never obligations. Individuals may as well chose to be on their own, do not use the democratic tools they are granted. The respect of their will to participate or not is, in the end, another way to respect their human dignity and their free will.

 

A Democracy Index for International Organization?

Posted on by Susanna Cafaro

Democracy indexes are usually for states.

They are designed to assess trends and  level of democracy inside countries.

Democracy is never a yes or no, or maybe it may be a clear no, but never a clear and final yes.  Democracy standards evolve, societal challenges require a continuous update of democratic tools and indicators and citizens should never stop to claim for better and more efficient participatory and accountability tools. Democracy is a work in progress.

Let’s have a look at same of these democracy indexes:

The Economist Intelligence Unit Index of Democracy compiles an annual ranking of countries by democracy level. The index is based on 60 indicators grouped in five different categories measuring electoral process and pluralism, civil liberties, government role, political participation and cultural participation.

The Index distinguishes between full democracies and flawed ones, hybrid and authoritarian regimes on the basis of their scores within each category. In 2015, democracies appear to be complete in only 20 of the 167 countries surveyed!

Other interesting indexes and measurements are on other sites, such as the Democracy Barometer, whose theoretical basis is in this chart:

quality_en

Many other indexes and rankings deserve a mention. The Bertelsmann Transformations Index on the political and economic development assesses the status of countries in transition, while the Bertelsmann Sustainable Governance Index refers instead to the OECD countries. The Democracy Ranking is based on political and socioeconomic factors; the Democratic Audit, focuses on UK; the Freedom House: Freedom in the World Reports is developed by the American NGO “Freedom House”; the Global Democracy Ranking measures the quality of democracy freedom & other characteristics of the political system) plus the performance of the non-political dimensions  (gender, economy, knowledge, health, and the environment); Polity classifies political systems on a scale between the two extremes autocracy and democracy; the Polyarchy Dataset is based on Robert Dahl’s concept of polyarchy as the Vanhanen’s Index of Democracy; the Worldwide Governance Indicators (WGI) project reports aggregate and individual governance indicators for 215 economies;  the V•Dem ratings on 11 different democracy components  for all countries worldwide from 1900 onwards; the Unified Democracy Scores combines measures from 12 other democracy measures (among others Freedom House, Polity, Polyarchy, Vanhanen).

Other ways to measure democracy level may involve the respect of human rights (see among others Amnesty International – Human Rights Reports, or HDR – Human Development Reports (UNDP), or transparency (as Transparency International: Corruption Perception Index (CPI), Global Corruption Barometer (GCB) und Bribe Payers’ Index (BPI)) or the freedom of press and media (as Freedom House). Please note that the list is not complete!

Even if the theoretical approach and the data sets may differ, all these indexes and rankings have something in common: they all refer to states. These parameters can only be used to a limited extent when evaluating an international organization.

There are some good reasons for that: first of all they measure the efficiency of representative democracy, i.e. the electoral system (are there free elections? do all individuals enjoy voting rights? is the electoral process transparent? and so on…)

Second, many indicators refer to human rights and quality of legislation (freedom of press, judicial rights, gender equality, access to education, et cetera).

Finally, some of them evaluate the economic environment: economic freedoms, free competition, inequality.

All of them, so, assume the existence of a demos and a territory of reference and a government responsible for them. They are definitely useful to inform us on how things work, how they evolve over time and how they can be improved.

But still, I think that we miss an important tile in the mosaic of our democratic rights. What if the decisions which have an impact on our rights do not originate from states, but instead from the UN, the IMF, the Eurogroup? Are still the states to blame? and if so, what can we do to address the issue? The Greek crisis offered a powerful example, but should we speak of the UN Security Council listing potential terrorists without any respect for their defence rights?

I have spent some time reflecting on possible indicators to measure democracy in international organizations, once again to assess how things work, how they evolve over time and how they can be improved. The main difference with democracy indicators for states is that they concern only the relationship between citizens and a governance system.

Here is my concept tree:

supranational democracy chart

What I came up with, is a chart based on three core indicators: legitimacy, accountability and inclusion. All the three may , in turn, be split into different substantial elements, in order to explore possible improvements. Only through a prismatic factorization of each of them in their multiple meanings is possible a real assessment of the existing democratic toools as well as a verification of what is really missing.

There is a close relationship between democratic legitimacy, accountability and inclusiveness; several tools serve more than one of these values (you’ll see repetitions in the chart) and transparency serves them all.

What seems interesting to me is that this chart imagined for international organizations works very well for any kind of organization expected to be democratic (even if not all the yellow elements – the practical tools –  would apply, or we could imagine other ones).

 I don’t know how to convert these elements in numeric values in order to build an index, but I’d like very much to join a team to imagine one.

I’m open to suggestions!

 

The Case for Technocracy (and the Case for Democracy!)

Posted on by Susanna Cafaro

International organizations are mostly technocratic institutions. Central banks are definitely technocratic institutions. Many national authorities responsible for supervision and monitoring are inherently technocratic.

It sounds like a bad thing, as technocracy means literally power in the hands of technicians or experts. And experts are selected after the evaluation of knowledge assets and experience. So, basically, if an institution is an example of technocracy, it is not an example of democracy.

Technocracy has old roots as among the most ancient civilizations the power was in the hands of those who had knowledge. It was an assumed truth that knowledge goes hand in hand with wisdom (and sometimes even with divinity!).

Nowadays, there are some good reasons to choose technocracy over democracy, even if it isn’t often the case:

  1. We want that our authority takes not the more legitimate or shared decisions, but the best ones.

This happens when decisions are just too difficult for non-experts, as it happens in the field of monetary policy: deciding which is the right amount of money to print or which is the correct interest rate to keep prices stable in the current circumstances is the result of a knowledge-based approach. Only few people are qualified enough to understand the difficult mathematical reasoning behind this kind of decision.

2. We want independent, impartial decisions.

An antitrust authority under political influence or pressure by public opinion wouldn’t do properly its duty. Similarly to the judiciary, monitoring authorities have to apply rules impartially, in good faith, after a qualified evaluation.

Some international bodies are similarly  committed to super partes evaluation, to focus on the common interest which is not necessarly the interest of the majority. This is the case for the European Commission which interacts regularly with the Council of Ministers and the European Parliament, in charge to  represent respectively the majority of states and the majority of populations, so the Commission offers a different perspective.

Conversely, there is a wrong reason to choose technocracy over democracy, it is the lack of trust in the political elite and the need for a radical change (I think of all the so-called “technical governments” we had in Italy in the past two decades, for instance).

It is a lie we tell ourselves: a minister plays necessarily a political role, no matter where he comes from or how he has been chosen. So, this is just a way to mistify or hide the reasons behind political decisions which are never simply “technical”.

All the organizations whose powers require political discretion, states in the first place (but not just states) cannot be managed as technocracies. Such a choice would turn back the clock to pre-democracy ages, while what we want is to improve our level of democracy.

Moreover, even if the activity of a technocratic authority is not, by definition, democratic, choosing the experts in charge for technocratic decisions – chief officers, board members, central banks presidents – is definitely a political decision, so we expect it to be democratic.

Some international organizations, which still obey to the technocratic model, increased their role over time and should introduce democratic elements to complement the technocratic ones – just like in the EU the technocratic body -which is the Commission- is complemented by the Parliament and the Council.

Finally, how can we trust a technocracy?

All the technocratic institutions show  – or should show  – two basic features to guarantee that their power will not be abused:

  • a clear mandate
  • an accountability framework

They don’t operate in a splendid isolation, they enjoy relevant powers for some good reason. It is up to them to deserve people’s trust using them properly or – if it is the case – to be held responsible for their misuse.

These two elements  – a limited allocation of competences and a duty to be accountable-  reconcile democracy and technocracy, so the two may be an useful completion one of the other.

Accountability, inclusivity, Legitimacy

Supranational Democracy in a Nutshell

Quote | Posted on by Susanna Cafaro

A few days ago I had the opportunity to give a speech about the need for democracy at global level and about what we, as individuals, can do.

I post it here because it summarizes well what is explained in several previous posts:

 

 

 

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International Law vs Human Rights

Posted on by Susanna Cafaro

International law sometimes is binding.

International treaties may be amended or repealed by new treaties, customary law can evolve over time (and sometimes it takes centuries), but a core of international law is really binding.

Members’ obligations under the UN Charter override their obligations under any other treaty; decisions by the International Court of Justice are law for the parties to the judgment; resolutions of the UN security Council – grounded on chapter seven of the charter- must be enforced and – of course –  rules of jus cogens are not modifiable.

What happens when this core of international law conflicts with fundamental rights of individuals? what comes first? Most of the legal scholars would say: the binding international rules. As uncomfortable as it appears, the primacy of the rules ensuring the peaceful coexistence of states must be guaranteed.

But aren’t human rights a too high price to pay? And isn’t the system contradicting itself? After all, the United Nations are the cradle of the doctrine of human rights: they gave birth to the  Universal Declaration of Human Rights (1948), another conerstone of international law.

Now, some jurisdictions are challenging the UN system on this same ground of the guarantee of human rights. A couple of meaningful examples will clarify what I’m saying: the Kadi saga and the decision 238/2014 of the Italian Constitutional Court

Scholars of EU Law and of international Law are very familiar with the Kadi and Kadi II decisions which from 2001 to 2013 involved the European Courts in the evaluation of EU acts  implementing a UN Security Council binding Resolution.

In its Kadi judgment,  the European Court of Justice (ECJ) stated that “the Community judicature must (…) ensure the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.”

The resolution we are speaking about ( Resolution 1267 (1999)) established a “Sanctions Committee” responsible in particular for designating the funds or other financial resources which all States must freeze in order to ensure that those funds or are not made available to, or for the benefit of, the Taliban . In Resolution 1333 (2000),  the UN Security Council instructed the Sanctions Committee to maintain an updated list of the individuals and entities designated as associated with Osama bin Laden, and held that States must freeze funds and other financial assets of these individuals. In order to implement this resolution, the Council of the EU adopted, inter alia, the contested Council Regulation 881/2002

Even if the ECJ emphasized that it had no  no power to review the lawfulness of resolutions adopted by the UN Security Council, the European regulation adopted on its ground was annulled as the whole procedure both at UN level and EU level didn’t respect the right of the individual to be heard.

In the community of international lawyers this decision was almost heretical. infact, according to Article 103 of the UN Charter :

‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

But is the right of the individual to be heard just an European Law principle or is it a cornerstone in the whole human rights doctrine?

And even if one  may have little sympathy with that Saudi businessman (and his well equipped legal team), wasn’t the principle right?

In the so called Kadi II case, mr Kadi then brought new proceedings before the General Court, seeking annulment of Commission’s Regulation 1190/08.  It appeared that the delisting procedure available before the Sanctions Committee failed to offer the minimum guarantees of judicial protection, nor had the system set up at the EU level offered other than a formalistic protection. Even this second Regulation was annulled.

In October 2012 – after more than a decade-  Mr Kadi was delisted by the Sanctions Committee.

In July 18, 2013, the Court of Justice of the EU handed down the judgment in the so-called Kadi II dispute. With this decision, the Court dismissed the appeals brought by the Council, the Commission and the UK against the General Court’s judgment. In so doing, the Court has confirmed that Mr. Kadi’s inclusion in the list was in breach of his fundamental rights.

Now, we are not so much worried for the question whether the primacy of UN Charter obligations is jeopardized as -from a substantial point of view- we are for the non compliance with fundamental human rights by the Security Council

What is really important to point up is that since 2009 there is an  Ombudsperson in the UN System. It was established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011).  He is also in charge for assisting the Sanctions Committee in dealing with delisting requests.

The creation of the Ombudsperson is a direct result of combative individuals and brave judges (see also some cases in domestic courts, such as , Abdelrazik, Hay, Ahmed, etc). I don’t see it as a failure but as a step forward in international law.

Another step forward is suggested by the decision 238/2014 of the Italian Constitutional Court which concerned  the constitutional legitimacy of certain Italian norms which had been adopted by Italy in order to give application to the International Court of Justice’s 2012 Judgment on Jurisdictional Immunities of the State (Germany v. Italy).

This time the clash was between the jurisdictional immunity of states and the rights of victims of war crimes and an “heretical” decision by the Italian Court chose to favor the rights of individuals.

In the dispositif, the Constitutional Court declared Article 3 of Italian law 5/2013 constitutionally unlawful. This article was a specific implementation of the ICJ Judgment of 2012, requiring Italian Courts to decline jurisdiction in any cases where the International Court of Justice had decided that Italian civil Courts should not adjudge upon the conduct of other States; moreover, the Court declared the 1957 Italian law of ratification of the UN Charter constitutionally unlawful,

“with respect to the execution given to Article 94 of the Charter, only to the extent in which it obliges Italian Courts to comply with the Judgment of the International Court of Justice of 3 February 2012, which requires them to decline their jurisdiction in relation to the acts of a foreign State which consist in war crimes and crimes against humanity, impairing inviolable human rights”.
For further explanations of the Court’s reasoning, you can see here.
The conflict between fundamental human rights and international law cannot be healed remaining on the same level of thinking in which it has been generated, what I see here is an effort of the Italian Constitutional Court to move to a new level: giving fundamental rights a different stance vis-a-vis binding international law.

“With great power comes great responsibility”: the Case of ECB’s Accountability

Posted on by Susanna Cafaro

“With great power comes great responsibility”.You know where this quote comes from 🙂

I think it perfectly applies to the ECB.

When I started to study it (OMG, about 20 years ago!), I found out that its almost exclusive competence in managing the Eurozone monetary policy and its well-guaranteed independence were mirrored by a panoply of accountability tools.

The democratic legitimacy of the ECB is grounded on the respect of the rule of law and specifically on the fact that (i) it has been established by a treaty ratified by all member states; (ii) its Executive Board is appointed by the European Council, acting by a qualified majority on a recommendation from the Council after it has consulted the European Parliament; (iii) its decisional bodies act in accordance with decision-making procedures codified in the Treaties and in the Statute annexed thereto.

This legitimacy ground is complemented by the accountability of the ECB towards the European Parliament. The ECB President regularly reports on the bank’s monetary policy and other duties during his quarterly hearings before the European Parliament’s Committee on Economic and Monetary Affairs. The content of the “monetary dialogue” has evolved over time and now covers all aspects of economic and monetary policy. In addition, the President of the ECB and the other members of the Executive Board may be heard by the competent Committees of the European Parliament on  own initiative or at the request of these; MEPs may address written questions to the bank and ECB’s compulsory replies are published in the Official Journal of the EU and on the bank’s website.

The aim of these exchanges between the Parliament and the ECB is monitoring its compliance with the objective of price stability: in all documents and interviews the ECB is required to justify its work and does it by making known its monetary policy strategy in detail. The definition of price stability rests on ECB’s competence and can be found in two important decisions, adopted in 1998 and 2000.

As part of the ECB’s reporting obligations, the ECB publishes quarterly reports, weekly financial statements, and a Monthly Bulletin plus a wide range of other task-related publications. It also addresses an Annual Report to the Council and Parliament. This document is presented by the President of the ECB to the Parliament’s plenary which –few months after – adopts a resolution after a general debate. This exercise is far from being a mere formality: in 2005 the Bank’s annual report was rejected (even if this vote didn’t have any binding effect). The Members of the Governing Council deliver numerous speeches to address relevant topics of concern for the public and the ECB President and Vice-President provide an in-depth explanation of the ECB’s assessment of the economic situation and the rationale for its monetary policy decisions during regular press conferences – monthly- after each meeting of the ECB’s Governing Council.

All this was already in place before the financial crisis.

Only on December 18th 2014, the European Central Bank communicated its intention to start publishing summary minutes of its policy deliberations beginning four weeks after its next meeting, as a key part of its communications strategies. For sure it is a step forward in terms of the institution’s transparency and accountability.

A few days ago somebody made me notice that if “with great power comes great responsibility”, the contrary is also true: with great responsibility comes great power.

Once again, the ECB is a perfect example. During the financial crisis and especially after the Greek crisis exploded, the ECB took on more and more responsibility, stretching its mandate to guarantee the price stability and – ultimately – committing itself to save the very existence of the euro.

Draghi’s London speech (July 26, 2012), was a turning point:

“Within our mandate, the ECB is ready to do whatever it takes to preserve the euro. And believe me, it will be enough.”

Starting from then, new unconventional monetary instruments were created – the Outright Monetary Transactions, the Quantitative Easing – and the communication strategy became one of them. Now, in front of this (undeniable) increased power, one legitimately asks if the accountability tools foreseen by the Treaties are still adequate. Maybe it is time to introduce a new one: a monetary dialogue with a Parliament (or a Parliament configuration) specific to the Euro area.

The proposal of signing a specific Euro Treaty for the Eurozone economic governance -establishing an executive body responsible in front of an Euro-Parliament – has been advanced by three political manifestos appeared in 2013 and 2014. The first was presented by the German Glienicker Gruppe, the other two were French: the proposal by the Groupe Eiffel and the Manifeste pour une Union Politique de l’Euro. Such a Parliament would add a new dimension in holding the ECB accountable and could contribute significantly to the democratization of the Euro-governance. In the meantime, it would be possible to establish in the European Parliament a  subcommittee to the ECON Committee composed of MEPs from the Eurozone, to prepare the ECON Committee’s work on legislative proposals and overseeing activities specific to the Eurozone, including the monetary dialogue with the ECB.

This last proposal could be easily implemented without any treaty change, not amending the European Parliament’s Rules of Procedure (where couldn’t be allowed any differential status among MEPs), but with informal agreements among political groups.