Due Process in the United Nations
Forthcoming, American Journal of International Law, 2016
55 Pages Posted: 5 May 2016
Date Written: January 20, 2016
The legitimacy of the United Nations is essential to its effectiveness in carrying out its mandate. As UN organs exercise an increasing array of ‘governmental’ powers, it should come as no surprise that repeated failures by the UN to provide adequate due process to those affected by its decision-making has had a detrimental effect on the Organization and its activities. Yet UN organs continue to resist procedural reform, seemingly unpersuaded by reform proposals insisting that due process is unquestionably ‘a good thing’. The aim of this article is to develop procedural principles for the UN context using a normatively rich rather than formalistic approach. The problem in relying on traditional international law source methodology – drawing on ‘universally-recognized’ procedural standards from customary international human rights law or ‘general principles’ of domestic public law – is that it ignores the contextual nature of due process. The article lays the foundations of a ‘value-based’ approach to the development of due process principles for the UN context, with a focus on two sites in which the choice of procedural framework is both problematic and unresolved: the targeted sanctions context and the Haiti cholera controversy.
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