110 AJIL Unbound 1 (2016-2017)

handle is hein.journals/ajilunbo110 and id is 1 raw text is: 
















                             INTRODUCTION TO SYMPOSIUM ON
              DEVIKA HOVELL, DUE PROCESS IN THE UNITED NATIONS

                                          Alexandra Huneeus*

  Devika  Hovell's Due Process in the United Nations returns to the familiar but vexing question of what
mechanisms  could best provide for UN  accountability.' Her contribution, as she describes it, is to start with
first principles. The article opens by observing that we can neither assess nor try to improve due process
mechanisms  if we lack a theory of why we need  them in the first place: What values underlie the calls for
greater transparency and accountability at the United Nations? Why,  exactly, should the United Nations
provide greater due process at the expense of its budget and agility? The answer, moreover, cannot be as-
sumed  to be the same as it is for domestic governments, since the United Nations is a sui geners actor working
in an entirely unique context.
  Hovell's argument then unfolds in three steps. First, she lays out and compares three possible value-based
justifications of due process. Second, she links each justification to a different type of existing due-process
mechanism.  Thus, for example, if we view due process as a way of ascertaining that positive treaty law, as
ratified, be followed accurately, then it would make sense to put in place an international judicial mechanism.
On  the other hand, if we value due process as a way to ascertain that the interests of those subject to UN
authority be given voice, then a mix of regional and national courts may be a better mechanism. But Hovell's
analysis is not only deductive. She acknowledges that different real world contexts will call for different
justification-mechanism pairings. Her final step, then, is to explore how each type of due process mechanism
has fared in the context of two case-studies: the UN Sanctions regime and the Haiti Cholera Case. She con-
cludes that a less judicialized and more open mechanism   equipped  to consider and advance  the public
interest, such as an ombudsperson, is the best fit for the current UN context.
  Hovell's argument thus moves from  ought to is and back again, striving for a normative analysis that is sen-
sitive to empirical context. By contrast, the three essays in this symposium move in the opposite direction,
from the is to the ought. The essayists each examine case studies that are similar to or the same as Hovell's,
but they provide different interpretations of the facts on the ground, thereby challenging Hovell's account of
UN  practice and, ultimately, her prescription, each from a different angle.
  For Antonios  Tzanakapoulos, the problem with Hovell's argument is her failure to acknowledge that a fairly
robust regime of due process has already developed over the past decades.2 Moreover, the manner in which it
developed belies her argument. He reinterprets the UN sanctions regime to show not only that it has come a
long way, but also that it is the result of litigation before diverse national and regional courts that created
pressure on the United Nations  to put in place, and then fine-tune, the still-evolving ombudsman regime.


  * Assodate Professor of Law at Universit of Wisconsin Law School.
  Originally published online 22 July 2016.
  1 Devika Hovell, Due Process in the United Nations, 110 AJIL 1 (2016).
  2 Antonios Tzanakopoulos, Theoynwg orNgotiating the Law?:A Response to Devika Hovel, 110 AJIL UNBOUND 3 (2016).


ASIL and Alexandra Huneeus C 2016

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