"For hard it is for high and stately buildings long to stand except they be upholden and staid by most strong shores, and rest upon most sure foundations"
--Jean Bodin, The Six Books of a Commonweale (1576)
It has been said of the redemptive quality of procedural reform that it is "about nine parts myth and one part coconut oil." (1) Yet, as the recent history of the United Nations shows, failure to enact adequate procedural reform can have damaging consequences for an organization and its activities. In the targeted-sanctions context, litigation in over thirty national and regional courts over due process deficiencies has had a "significant impact on the regime," placing it "at a legal crossroads." (2) In the peacekeeping context, the United Nations' position that claims in the ongoing Haiti cholera controversy are "not receivable" has been described in extensive and uniformly critical press coverage as the United Nations' "Watergate, except with far fewer consequences for the people responsible." (3) Complacency in the face of allegations of sexual abuse by UN blue helmets led to the unprecedented ousting of a special representative to the secretary-general in the Central African Republic. (4) Economizing on due process standards is proving to be a false economy.
The focus of this article is not to repeat the allegation of due process deficiencies. The "j'accuse" moment was seized by a range of academics and practitioners, and has passed. The task now facing international lawyers is more structural. The controversy and transnational discourse surrounding due process reflects that UN decision making is emerging as a new tier of governance applicable and accountable to a complex, hybrid, global constituency. Yet much normative work still needs to be done in tracing out the full implications of the organization's assumption of "governmental" powers in the international sphere. In terms of applicable procedural standards, the problem is that the normative case for adopting due process safeguards in UN decision making has not adequately been made. Instead, would-be reformers have relied on a presumption that due process is unquestionably "a good thing," and have provided minimal analysis of the form that due process should take or the role that it should play in the UN setting. At the same time, and in the absence of a strong normative argument to do otherwise, the United Nations has rested on its traditional privileges such as primacy or immunity and has resisted outside "interference" in the form of procedural regulation and review.
This article proceeds from the starting point that the intransigence on both sides of the debate is less a product of ideological differences about due process than of (flawed) methodology. In the reform debate, the task of developing a procedural framework applicable to UN decision making has been largely atheoretical. Following the traditional methodology for identifying sources of international law, international lawyers have typically drawn "universally recognized" procedural standards from customary international law or general principles of civilized nations, based on the recognition of such standards in x number of treaties or the use of similar principles by y number of states. With this orientation, and drawing predominantly on due process guarantees binding on states under international and regional human rights sources, those favoring reform have united around the need for a judicial remedy--an idea that the United Nations has strongly rejected.
This formalistic "one-size-fits-all" approach to due process--in which the only option is to embrace or reject the judicial approach--lacks normative foundation. As any public lawyer will readily identify, while due process rights are recognized by most legal systems, we should not be led into the error of thinking either that the relevant principles are consequently "universal" or that they take the same "judicial" shape in every legal system. (5) In the domestic literature, it is well established that due process is contextual: different legal contexts legitimately require different procedural standards and operate according to different principles and values. (6) This contextual character of due process runs contrary to the traditional international law methodology of identifying similar principles from diverse legal systems and then generating what is asserted to be a universally applicable set of norms.
The aim of this article is to develop procedural principles applicable to the United Nations by using a normatively rich rather than formalistic approach. I identify three models of due process, supported by different theories of community, law, and values. In setting out the foundations of a "value-based" approach to the development of due process principles, I focus on two areas in which the choice of procedural framework is both problematic and unresolved: targeted sanctions and the Haiti cholera controversy. In both settings, various procedural frameworks have been proposed and applied, with certain mechanisms put into place by the United Nations itself, others embedded in reform proposals, and still others evolving more organically. Each of the main procedural frameworks will be considered in terms of the due process model that each most appropriately advances. The overarching goals of the article are to use a value-based approach to bypass the superficial--and deadlocked--debate centered on forms and remedies, and to expose the underlying choices about conceptions of international community, the role of law, and the appropriate balance between international values.
A VALUE-BASED APPROACH: THREE MODELS OF DUE PROCESS
Historically, within domestic legal systems--as within international law--little attention has been paid to the theoretical aspects of procedures. This inattention reflected a sentiment that procedural rules relate "only to the nuts and bolts of legal machinery, whereas central theoretical issues lie elsewhere." (7) In the last few decades, however, the outpouring of writings on due process has made clear that the theoretical dimension of due process is extraordinarily rich. This literature has been virtually untapped in the debate about the application of due process to UN decision making. Instead, due process has typically been discussed in terms of procedural rights, including the (1) right to notice, (2) right to a hearing, (3) tight to reasons, (4) right of appeal to an independent tribunal, (5) right of public access to information, and (6) right to a judicial remedy. Yet due process is far more than the sum of its parts. In proposing applicable procedural standards, little consideration has been given to the theoretical foundations or purposes that potentially underlie and unify these various rights. Through my value-based analysis, I demonstrate that due process is more than a set of discrete legal standards; it is a touchstone for how particular legal orders conceive of far larger issues.
Due Process: History, Power, and Legitimacy
Due process has played an important historical role in shaping the structures within which different societies make legal, political, and social decisions. Shifts in governmental authority (and power) from one branch to another have often been matched by widespread procedural reforms. During the eighteenth, nineteenth, and twentieth centuries, the center of gravity of governmental authority shifted from the legislative and judicial to the administrative branches of government across a range of countries, including England, France, and the United States. In many cases, these shifts were accompanied by crises of legitimacy that generally stemmed from concerns about the concentration of governmental authority in the hands of unelected officials and about attempts to insulate that authority from interference by the judiciary. It was largely through the reformation of due process law that these concerns were redressed. The elaboration of due process principles in the United States has been described as the "primary mechanism" for redefining the modern administrative state. (8) Napoleon "rejudicialized" French administrative justice by establishing the Conseil d'etat and, later, by giving that body the power of review over administrative decisions. He described these changes as necessary lest "the government ... fall into scorn." (9) In the United Kingdom, the House of Lords' decision in Ridge v. Baldwin, (10) which extended the right of procedural fairness to the exercise of all administrative decisions, has been characterized as the "Magna Carta of natural justice." (11)
The idea that due process has served historically to enhance or restore legitimacy in the wake of shifts in decision-making authority is an interesting one in the present context of UN decisions. The expanding assumption of authority over individuals by international institutions might well represent the next important (and ongoing) shift in governmental authority, this time from the domestic to the international sphere. This shift has sparked concerns similar to those emerging during the rise of the modern administrative state--namely, fears about the exercise of power over individuals by an unaccountable body and about the absence of judicial review. Perceived against the backdrop of other historical shifts in governmental authority, the United Nations' failure to establish adequate due process safeguards regulating its assumption of authority over individuals can be regarded as something of an historical anomaly.
Due Process as "Dialogue"
Though due process has proved a valuable tool in comparable historical contexts, there has been a failure in the international sphere to appreciate how procedural law could potentially contribute to UN decision making. It is often said, and history confirms, that the essential aim of due process is to enhance the legitimacy of decisions. (12) Of course...