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 SANCTIONS, ACCOUNTABILITY
AND GOVERNANCE IN A
GLOBALISED WORLD

This book is the first in a series examining how public law and interna-
tional law intersect in five thematic areas of global significance: sanctions,
global health, environment, movement of people and security. Until
recently, international and public law have mainly overlapped in discus-
sions on how international law is implemented domestically. This series
explores the complex interactions that occur when legal regimes intersect,
merge or collide.
Sanctions, Accountability and Governance in a Globalised World dis-
cusses legal principles which cross the international law / domestic public
law divide. What tensions emerge from efforts to apply and enforce law
across diverse jurisdictions? Can we ultimately only fill in or fall between
the cracks or is there some greater potential for law in the engagement?
This book provides insights into international, constitutional and admin-
istrative law, indicating the way these intersect, creating a valuable
resource for students, academics and practitioners in the field.
 connecting international law
with public law

This five volume series flows from workshops bringing public and
international lawyers and public and international policy makers
together for interdisciplinary discussion on selected topics and themes.
The aim of the series is to promote a deeper understanding of how
public law and international law intersect, both in theory and in practice.
Until now, international and public law have mainly overlapped in
discussions on how international law is implemented domestically.
This series is unique in consciously bringing together public and
international lawyers to consider and engage in each other’s scholarship.

Series editors
K I M R U B E N S T E I N is Professor and Director of the Centre for
International and Public Law (CIPL) in the ANU College of Law, The
Australian National University. Her current research projects are at the
cutting edge of the intersection between public and international law. Her
public law work spans constitutional and administrative law, and also
includes her expertise in citizenship law.
T H O M A S P O G G E is Professor of Political Science at Yale University,
Professorial Fellow at the ANU Centre for Applied Philosophy and Public
Ethics (CAPPE) and Research Director at the Oslo University Centre for
the Study of Mind in Nature (CSMN). He writes and teaches on moral
and political philosophy and Kant.
 SANCTIONS,
ACCOUNTABILITY AND
GOVERNANCE IN A
GLOBALISED WORLD

Edited by
JEREMY FARRALL
and
KIM RUBENSTEIN
 CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press,

New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521114929

© Cambridge University Press 2009

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.

First published 2009

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

ISBN 978-0-521-11492-9 Hardback

Cambridge University Press has no responsibility for the persistence or

accuracy of URLs for external or third-party internet websites referred to in
this publication, and does not guarantee that any content on such websites is,
or will remain, accurate or appropriate.
 CONTENTS

Contributors page x
Series editors’ preface xvii
Editors’ preface xix

Introduction: Filling or falling between the cracks? Law’s

potential 1
JEREMY FARRALL AND KIM RUBENSTEIN

PART I Setting down the foundations 25

1 Whose public? Which law? Mapping the internal/external
distinction in international law 27
PETER G. DANCHIN

2 The potential for a post-Westphalian convergence of ‘public

law’ and ‘public international law’ 53
CHARLES SAMPFORD

PART II Internationalising public law 73

3 Globalisation and public law: A global administrative
law? 75
SIMON CHESTERMAN

4 The deliberative deficit: Transparency, access to information

and UN sanctions 92
DEVIKA HOVELL

5 Who guards the guardian? Towards regulation of the UN

Security Council’s Chapter VII powers through
dialogue 123
HITOSHI NASU

vii
viii contents
6 Holding the United Nations Security Council accountable for
human rights violations through domestic and regional courts:
A case of ‘be careful what you wish for’? 143
ERIKA DE WET

PART III Implementing Security Council sanctions 169

7 ‘A delicate business’: Did AWB’s kickbacks to Iraq under the
United Nations Oil-For-Food Programme constitute a
violation of Australia’s international obligations? 171
KEVIN BOREHAM

8 Should the United Nations Security Council leave it to the

experts? The governance and accountability of UN sanctions
monitoring 191
JEREMY FARRALL

PART IV The place of corporations 215

9 The nexus between human rights and business: Defining
the sphere of corporate responsibility 217
JUSTINE NOLAN

10 At the intersection of international and municipal law:

The case of Commissioner Cole and the Wheat Export
Authority 239
LINDA BOTTERILL AND ANNE MCNAUGHTON

PART V The role of lawyers 261

11 International legal advisers and transnational corporations:
Untangling roles and responsibilities for sanctions
compliance 263
STEPHEN TULLY

12 What is the right thing to do? Reflections on the AWB

scandal and legal ethics 289
VIVIEN HOLMES

PART VI Public law and public policy 311

13 Who’s responsible? Justiciability of private and political
decisions 313
DANIEL STEWART
 contents ix
14 AWB and oil for food: Some issues of accountability 334
RICHARD MULGAN

PART VII Parallel case studies 353

15 Discriminating for world peace 355
SIMON RICE

16 Removing barriers to protection at the exported border:

Visas, carrier sanctions and international obligation 378
ANGUS FRANCIS

Concluding remarks 407

THOMAS POGGE

Bibliography 418
Index 439
 CONTRIBUTORS

Editors
dr jeremy farrall is a Research Fellow at the Centre for International
Governance and Justice, in the Regulatory Institutions Network at The
Australian National University. He has worked extensively for the United
Nations, serving as a political officer in the UN Security Council in New
York, with the UN Mission in Liberia and on the UN Secretary-General’s
Mission of Good Offices in Cyprus. He is the author of United Nations
Sanctions and the Rule of Law (2007) and co-editor of The Role of
International Law in Rebuilding Societies after Conflict (2009).
professor kim rubenstein is Professor and Director of the Centre
for International and Public Law (CIPL) in the ANU College of Law, The
Australian National University. A graduate of the University of
Melbourne and Harvard University, Kim’s current research projects
are at the cutting edge of the intersection between public and
international law. Her public law work spans constitutional and
administrative law, and also includes her expertise in citizenship law.
Her international law work focuses on the status of nationality. Her
book, Australian Citizenship Law in Context (2002) represents the
foundation of her continued scholarly work, looking at the disjuncture
between the exclusive legal notion and the more inclusive normative
understanding of citizenship.

Other Contributors
kevin boreham has taught at the ANU College of Law since 2002.
Kevin’s area of academic interest is international law, particularly the
international law of human rights. Kevin practised as a solicitor in
private practice in Canberra from 1999 to 2001. Kevin’s first career was
as an officer of the Australian Department of Foreign Affairs and Trade.
x
 list of contributors xi
He served in Australia’s diplomatic missions in Colombo, Hanoi,
Manila, Tehran and New York, where he was Australian Deputy
Permanent Representative to the United Nations from 1987 to 1989.
Kevin’s work in Canberra specialised in multilateral and regional issues.
Among other appointments, Kevin was Assistant Secretary, International
Organisations Branch from 1992 to 1994.
dr linda botterill joined the Research School of Social Sciences at
The Australian National University as a fellow in 2006. Linda’s research
interest is in public policy development with a focus on the role of values
and expertise in the policy process. Her main research areas are rural and
regional policy, particularly in the areas of drought policy and the grains
industry. Before commencing her academic career, Linda had extensive
experience in public policy development in the Australian Public Service,
as a ministerial adviser and as a policy officer in two industry associations.
She is co-editor of and contributor to two interdisciplinary books on
drought in Australia: Beyond Drought: People, Policy and Perspectives
(2003) and From Disaster Response to Risk Management: Australia’s
National Drought Policy (2005).
professor simon chesterman is Global Professor and Director of
the New York University School of Law Singapore Programme, and an
Associate Professor of Law at the National University of Singapore
Faculty of Law. From 2004 to 2006 he was Executive Director of NYU’s
Institute for International Law and Justice, where he remains a senior
fellow. Educated in Melbourne, Beijing, Amsterdam and Oxford,
Chesterman has written widely on international institutions,
international criminal law, human rights, the use of force and post-
conflict reconstruction. Prior to joining NYU, he was a Senior
Associate at the International Peace Academy and Director of UN
Relations at the International Crisis Group in New York. He previously
worked for the Office for the Coordination of Humanitarian Affairs in
Belgrade and interned at the International Criminal Tribunal for
Rwanda in Arusha. His teaching experience includes periods at the
Universities of Melbourne, Oxford, Southampton and Columbia.
Chesterman’s books include Shared Secrets: Intelligence and Collective
Security (2006); You, The People: The United Nations, Transitional
Administration, and State-Building (2004); and Just War or Just Peace?
Humanitarian Intervention and International Law (2001), which
was awarded the American Society of International Law Certificate
of Merit.
xii list of contributors
dr peter g. danchin is an Assistant Professor of Law at the
University of Maryland School of Law where he directs the school’s
program in international and comparative law. He has BA LLB (Hons)
degrees from the University of Melbourne, and LLM and JSD degrees
from Columbia Law School where he was a Bretzfelder International Law
Fellow. From 2000 to 2006, Peter was Director of the human rights
program at Columbia University’s School of International and Public
Affairs where he lectured on public international human rights law and
co-taught colloquia on ‘Rethinking Human Rights’ and ‘Ethical
Globalization and Human Rights’. In 1999, Peter served as a law clerk
to Justice Arthur Chaskalson, President of the Constitutional Court and
Chief Justice of South Africa. He has written a number of articles on
international law and human rights and is the co-editor of Protecting the
Human Rights of Religious Minorities in Eastern Europe (2002). His
book, United Nations Reform and the New Collective Security is
forthcoming.
professor erika de wet is Professor of International
Constitutional Law at the Amsterdam Center for International Law.
She currently holds the position of Extraordinary Professor at the
Faculty of Law, North West University, Potchefstroom and at the
Faculty of Law, University of Pretoria (both in South Africa). She also
regularly teaches international law at the Faculty of Law, University of
Zurich, Switzerland. Since April 2007 she has served as a member of the
Advisory Committee on Issues of Public International Law of the
Netherlands (CAVV). She completed her basic legal training (BIur,
LLB) as well as her doctoral thesis (LLD) at the University of the Free
State (South Africa). She also holds an LLM from Harvard University
and completed her Habilitationsschrift at the University of Zurich
(Switzerland) in December 2002. It was published in 2004 under the
title The Chapter VII Powers of the United Nations Security Council.
angus francis is Senior Lecturer in the Queensland University of
Technology’s Faculty of Law, where he lectures in public international
law and refugee law. Angus leads the Faculty’s Human Rights and
Governance Research Program and is co-coordinator of the Faculty’s
International Perspectives Project. His main research interests are in the
area of international refugee law. He was a visiting fellow at the Refugee
Studies Centre, Oxford University, in 1996–1997 and 2003. Angus has
consulted to Australian parliamentarians on a number of asylum-related
bills and has been cited in various Senate committee reports. He recently
 list of contributors xiii
submitted his doctoral thesis at The Australian National University on
the topic ‘The role of legislative, executive and judicial mechanisms
in ensuring a fair and effective asylum process’. His latest publications
in the refugee law area appear elsewhere in the International Journal
of Refugee Law (selected for reprint in the Immigration Nationality
Law Review), Melbourne University Law Review, and the Australian
International Law Journal. Angus has been active in the pro bono legal
representation of asylum seekers in Australia since 1990, undertaking
work on behalf of the Refugee Council of Australia, WA Legal Aid, the
Refugee Advice and Casework Service, and the Refugee and Immigration
Legal Service.
vivien holmes is a senior lecturer in Legal Ethics at the ANU College
of Law’s Legal Workshop program. She has worked as a litigation
solicitor in private and government practice, a government legal policy
officer, the Registrar of the NT Supreme Court, the NT Registrar of
Probates, the NT Deputy Coroner and a Judicial Registrar of the NT
Magistrates’ Court. She has also worked as a member of the Social
Security Appeals Tribunal.
devika hovell is a DPhil candidate at the University of Oxford, writing
a doctorate on ‘UN Sanctions, Security Council Decision-making and
Procedural Fairness’. From 2003 to 2006, she was a Lecturer and Director
of the International Law Project at the Faculty of Law, University of New
South Wales. In this capacity, she co-authored a book No Country is an
Island: Australia and International Law (2006) and was a co-editor of The
Fluid State: International Law and National Legal Systems (2005).
Previously, she was an associate to judges on the International Court of
Justice (2001–2002), and the High Court of Australia (1999–2000). She has
a Master of Laws from New York University.
anne mcnaughton is a lecturer at the ANU College of Law, The
Australian National University. She holds degrees from the University of
Newcastle and the University of New South Wales and Masters of Laws
degrees from Eberhard-Karls-Universität, Tübingen and the University
of Technology, Sydney. Anne lectures in contract and commercial law,
European law and international business transactions. Her research
interests include investigating the intersection of international and
domestic law, focusing particularly on aspects of commercial law.
richard mulgan is Emeritus Professor, and former Director of the
Policy and Governance Program in the Crawford School of Economics
xiv list of contributors
and Government, at The Australian National University. His research
interests include accountability, public sector management, New
Zealand politics and Greek political theory. His most recent book,
Holding Power to Account: Accountability in Modern Democracies,
builds on a series of articles on the subject of accountability published
over the last eight years (2003). The book provides a general analysis of
accountability mechanisms drawing on examples from five countries:
Australia, Canada, New Zealand, the United Kingdom and the United
States. Particular topics covered include the contrast between
accountability in the public and private sectors, the effect of public
sector reform on accountability, the comparison between single and
multiple points of accountability, and the limits of accountability.
dr hitoshi nasu is a lecturer at the ANU College of Law, at The
Australian National University, where he teaches international law,
international security law, international humanitarian law and
migration law. Prior to his appointment to The Australian National
University, he was teaching international law in the Faculty of Law,
The University of Sydney, where he also completed a PhD in 2006. The
revised version of his doctoral thesis is being published as a book,
International Law on Peacekeeping: A Study of Article 40 of the UN
Charter in 2009.

justine nolan is a senior lecturer in the Faculty of Law, University

of New South Wales (UNSW) and the Deputy Director of the Australian
Human Rights Centre at UNSW. Prior to joining UNSW, Justine worked
as the Director of the Business and Human Rights program at the
Lawyers Committee for Human Rights, now named Human Rights
First, in the USA. Her current research focuses on the accountability of
corporations for human rights abuses. She has advised companies and
non-governmental organisations on effective strategies to protect human
rights in the corporate sphere and has worked with the United Nations
on a number of business and human rights initiatives.
professor thomas pogge is Leitner Professor of Philosophy and
International Affairs at Yale, Professorial Fellow at the ANU Centre for
Applied Philosophy and Public Ethics (CAPPE), and Research Director
at the Oslo University Centre for the Study of Mind in Nature (CSMN).
Focused on Kant and moral and political philosophy, his publications
include World Poverty and Human Rights, second edition, 2008; John
Rawls: His Life and Theory of Justice, 2007; Freedom from Poverty as a
 list of contributors xv
Human Right, edited, 2007; and Global Justice / Global Ethics, co-edited,
2008. Pogge is editor for social and political philosophy for the Stanford
Encyclopedia of Philosophy and a member of the Norwegian Academy of
Science. With support from the Australian Research Council, the BUPA
Foundation and the European Commission, he currently heads a team
effort towards developing a complement to the pharmaceutical patent
regime that would improve access to advanced medicines for the poor
worldwide www.yale.edu/macmillan/igh/.

simon rice oam is Associate Professor of Law and Director of Law

Reform and Social Justice at the ANU College of Law, The Australian
National University. He is a part-time judicial member of the NSW
Administrative Decisions Tribunal in the Equal Opportunity Division,
and Chair of the Law Reform Advisory Council in the Australian Capital
Territory. He is a past President of Australian Lawyers for Human Rights
and was formerly Director of the NSW Law Foundation after working
extensively in community legal centres. In 2002 he was awarded a Medal
in the Order of Australia for legal services to the socially and
economically disadvantaged.
professor charles sampford graduated at the top of his class in
each of politics, philosophy and law, gaining a ‘double first’ in Arts and
the Supreme Court Prize in Law at the University of Melbourne. He then
won a Commonwealth Scholarship to Oxford to pursue all three
disciplines in his doctoral studies. He was awarded a DPhil in 1984
which was published as The Disorder of Law. He returned to
Melbourne University to teach law before being seconded to the
Philosophy Department in 1990 to help establish the Centre for
Philosophy and Public Issues where he was promoted to Principal
Research Fellow (the research equivalent of Associate Professor).
In 1991 he was invited to Queensland as Foundation Dean of Law at
Griffith University. In 1999, he was appointed Foundation Director of
the Key Centre for Ethics, Law, Justice and Governance. In September
2004, he became the Director of the Institute for Ethics, Governance and
Law (a joint initiative of the United Nations University and Griffith and
one of 19 UNU centres around the world). At the same time he took on
the role of Convenor of the Australian Research Council funded
Governance Research Network. Foreign fellowships include the
Visiting Senior Research Fellow at St John’s College, Oxford (1997)
and a Fulbright Senior Award to Harvard University (2000).
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