Providing Judicial Review for Decisions by Political Trustees
Perritt, Henry H., Jr., Duke Journal of Comparative & International Law
Chaos in Iraq, controversy over U.S. unilateralism, and skepticism about "nationbuilding" have unsettled ground rules for international intervention. Human rights violations, failed states, refugee crises, and international terrorism have combined to put the international community in the position of exercising a measure of sovereignty over formerly independent territories, as in Bosnia, Kosovo, East Timor, Afghanistan, and Iraq. This practice of ad-hoc international intervention is likely to continue.
Such political trustees (1) exercise temporary legislative, executive and judicial authority; yet in no case to date have they structured their judicial authority so as to provide for judicial review of either the constitutional variety, or of the administrative variety. (2) It does not appear that any legal institution presently has the power to review decisions or actions by political trustees such as the United National Interim Administration Mission in Kosovo ("UNMIK"). (3) Unless the legislature or courts of a U.N. member state ignores U.N. immunity and subjects U.N. officials to jurisdiction of its courts, (4) or unless a political trustee waives immunity for cases presented to specialized review tribunals, (5) judicial review is unavailable in the political trustee context.
The failure to provide at least for administrative review is undesirable for two reasons: its absence increases the likelihood of litigation in national courts to review decisions by political trustees, and such national litigation represents a far greater potential threat to effective political trusteeship than review in specialized tribunals linked to the trusteeship; and its absence undercuts international and internal legitimacy of political trusteeships because it puts the political trusteeship outside the bounds of a "rule of law."
This article explains that political trustees can structure judicial review so as to avoid interference with the core prerogatives of a trustee to act quickly and decisively; that models for judicial review in the English, U.S. and Western European civil law systems provide valuable insights in designing mechanisms of judicial review as a part of political trusteeships; and that the military occupation and martial law concepts are incomplete because they make certain assumptions about the relationship between civil and military authority which are not satisfied in modern political trusteeships.
This article concludes with a proposal for carefully circumscribed power for judicial review of the administrative variety, which could be added to the legal frameworks for ongoing political trusteeships such as those in Bosnia, Kosovo, Afghanistan and Iraq, and which should be made part of the mandate for any new political trusteeships in the future.
New solutions to new problems are easier to understand if they are explicitly linked to conceptual frameworks that already exist. Because of that, this article consistently uses analogies to American administrative law, particularly to the functions performed by major components of the American Administrative Procedure Act. (6) Despite this reference to American administrative law, it is important to understand that this article does not assume--and that no one should assume--a legal framework for review of international political trustees that is the same as the American constitutional framework. The political history of major legal and governmental institutions in the United States is unique and entirely unlikely to be replicated in the international setting. Moreover, one of the greatest difficulties in designing international institutions is that most--if not all--"hard law" (7) is state based, and legal mechanisms at the international level must grapple with the absence of treaty-based legislative institutions at the international level to serve as a source of international governmental power. Nevertheless, the analogies can be useful. …