What Is Required and How to Achieve It

Practical arrangements to put in place a system of judicial review at the international level have to sidestep all questions to do with fundamental judicial philosophy and principles of organisation. It has long been acknowledged that there is no coherent hierarchy and structure of courts at the international level and little prospect for it any time soon. Setting in place a system of judicial review thus needs to acknowledge that there is no ready-made structure into which courts or tribunals could fit in the way (for example, in the UK, the Competition Appeals Tribunal could be slot-ted between the Competition Commission and an appeal to the High Court) and no prospect of an overall agreement that would govern rela-tionships between courts. Similarly, while global administrative law has been recognised as emergent, there is no practical prospect in the short term of agreement on the principles and practices that would need to un-derpin the development of an internationally coherent doctrine of review,

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and the best that can be hoped for is the recognition of minimum stand-ards of review.

Within these fundamental constraints, any practical step towards ju-dicial review would have to decide whether juju-dicial review across all bod-ies could be entrusted to a single general court or tribunal of review, or whether individual organisations would each have their own tribunal es-tablished under international law or would accept the jurisdiction in which they were headquartered.

Simplicity would suggest either accepting local jurisdiction or that of a single international court including the possibility of a special tribu-nal attached to the Internatiotribu-nal Court of Justice in The Hague. The de-velopment of local jurisprudence would risk the emergence of varied and possibly conflicting approaches. On the other hand, international organi-sations guard their own turf and would be the first to complain that a sin-gle international court would not understand the specificities of their own environment. In Europe, the European Court of Human Rights (ECtHR) has come
under criticism for accepting too many referrals and for arriv-ing at judgments that fail to take into account national specificities. In the case of the International Court of Justice in The Hague, any specially in-stituted panel or tribunal would also need to be able to accept suits brought by non-State actors instead of being limited to actions brought by States.

Against this background, there appears to be four main options for establishing a system of review, in descending order of practicality.

4.1. Internal Virtual Review

One option for establishing a system of judicial review would be for the legal departments of the international institutions themselves to act as vir-tual courts – that is to say they would place themselves in the position of a hypothetical court of review and advise management and boards whenev-er a proposed action would be vulnwhenev-erable to be ovwhenev-erthrown by a court re-view, if there were one, on the grounds of either procedural or material defects. The weakness in this approach is that the voice of legal depart-ments is not always strong within their own organisation. They would need to define their own standards for any review and would be seen by the external world to be judges in their own cause.

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4.2. Agreement on Principles by the OECD

Organisation for Economic Co-operation and Development (OECD) has taken the lead among international organisations in establishing interna-tional regulatory and governance principles, and its latest set of Recom-mendations was issued in early 2012. Their practical force is not confined to the 34 members of OECD itself but have a world-wide impact. It would be consistent with this role for OECD to set out minimum principles for the international judicial review of international rules while leaving it to the organisations themselves as to how to put them into practice. In set-ting out the principles, OECD could also benchmark the procedural stand-ards to which international organisations should work. The weakness in this approach is that the recommendations would need to gain world-wide acceptance after adoption by OECD. OECD would itself be an interested party.

4.3. Administrative Procedures Resolution by the UN

Another alternative would be for the United Nations (UN) to take action itself. An organ such as Economic and Social Council (ECOSOC) could.

for example. pass a resolution along the lines of the US Administrative Procedure Act that would set out what is expected of international bodies and of courts of review, and would also propose how such courts (or a general court) would be established or recognised. The weakness in such an approach is the difficulty of getting agreement among all UN members on a system that would reduce their discretionary policy making powers.

The difficulties would include getting agreement on setting up any new international court or recognising existing courts in local jurisdictions.

4.4. Addendum to the UN Declaration of Fundamental Human Rights

A fourth option would be to amend the UN Declaration of Fundamental Human Rights so as to include the principles of rule-making and judicial review within a wider perspective under an additional section on rights to administrative justice. The weakness in any such option is the fear of reo-pening the content of the Declaration more generally, as well as contami-nating the principles and practice of judicial review of policy-making with the hypocrisy and power politics that surround the implementation of the Declaration.

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