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Original Articles

Transnational Legal Assemblages and Global Security Law: Topologies and Temporalities of the List

Gavin Sullivan Solicitor and Doctoral Researcher, Department of Political Science, University of Amsterdam, The Netherlands. Email: [email protected]. Financial support for this article was provided by the Dutch Council for Scientific Research (NWO) through the VIDI-grant ‘European Security Culture’, award number 452-09-016. Further support for the presentation of earlier drafts was provided by COST Action IS1003, ‘International Law between Constitutionalization and Fragmentation’. I am grateful to the anonymous TLT reviewers for their helpful comments; to my interviewees for their time and reflections; and to Jens Bartelson, Gráinne de Búrca, Marieke de Goede, Jessica Lawrence, Philip Liste and Sven Opitz for their valuable feedback on previous versions of this article. All websites accessed June 2014.
Pages 81-127 | Published online: 07 May 2015

  • Eve Darian-Smith, Laws and Societies in Global Contexts: Contemporary Approaches (Cambridge University Press, 2013) 12–15.
  • With thanks to Nikolas Rajkovic for suggesting the use of this term on presentation of an earlier version of this paper. See also Nikolas Rajkovic, ‘On Fragments and Geometry: The International Legal Order as Metaphor and How it Matters' (2013) 6(1) Erasmus Law Review 6.
  • See, in particular, UN Security Council Resolutions 1333 (2000) and 1390 (2002) which broke with the requirement that the sanctions needed to be connected to specific territory and enabled them to be applied for a potentially unlimited time period.
  • Gráinne de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi' (2010) 51(1) Harvard International Law Journal 1, 40. The notion of containment and transfer comes from Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press, 2012) 15.
  • See eg Bardo Fassbender, ‘Triepel in Luxemburg: Die dualistiche Sicht des Verhältnisses zwischen Europa- und Völkerrecht in der “Kadi-Rechtsprechung” des EuGH als Problem des Selbvertständnisses der Europäischen Union' [2010] Die öffentliche Verwaltung 333;Christian Tomuschat, ‘The Kadi Case: What Relationship is there between the Universal Legal Order under the Auspices of the United Nations and the EU Legal Order?' (2009) 28(1) Yearbook of European Law 654.
  • See de Búrca (n 4) 4–42.
  • See eg de Búrca (n 4); Erika de Wet, ‘The Security Council as Law-Maker: the Adoption of (Quasi)-Judicial Decisions' in Rüdiger Wolfrum and Volker Röben (eds), Developments of International Law in Treaty Making (Springer, 2005) 183–226; Turkuler Isiksel, ‘Fundamental Rights in the EU after Kadi and Al Barakaat' (2010) 16(5) European Law Journal 551; Armin von Bogdandy, ‘Pluralism, Direct Effect and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law' (2008) 6(3–4) Interna tional Journal of Constitutional Law 397, 398.
  • This approach is modelled on the Solange jurisprudence of the German Federal Constitutional Court (Bundesverfassungsgericht). In Solange I the Court held that it could review the constitutionality of EC law so long as EU institutions had not enacted a binding charter of fundamental rights consistent with the Ger man Basic Law (Grundgesetz). In Solange II the Court decided to no longer assert this competence because the ECJ provided a level of fundamental rights protection equivalent to the Grundgesetz. See BVerfG 29 May 1974, BVerfGE 37, 271 (Solange I) and BVerfG 22 October 1986, BVerfGE 73, 339 (Solange II).
  • See eg Juliane Kokott and Christoph Sobotta, ‘The Kadi Case: Constitutional Core Values and International Law—Finding the Balance?' (2012) 23(4) European Journal of International Law 1015; Ernst-Ulrich Peters-mann, ‘Do Judges Meet their Constitutional Obligations to Settle Disputes in Conformity with “Principles of Justice and International Law”?' (2007) European Journal of Legal Studies 1; Ben Saul, ‘Terrorism and International Criminal Law: Questions of (In)Coherence and (Il)Legitimacy' in Gideon Boas, William A Schabas and Michael P Scharf (eds), International Criminal Justice: Legitimacy and Coherence (Edward Elgar, 2012) 190–230 (Saul frames the Kadi case within a context marked by ‘procedural and institutional ambiguity, fragmentation and collision' but argues (at 14) that this ‘diversity’ is ultimately productive of constructive feedback and cross-institutional dialogue'); David Dyzenhaus, ‘The Rule of (Administrative) Law in International Law' (2005) 68 Law and Contemporary Problems 127 (Dyzenhaus argues for ‘imagina tive experiments in institutional design’ to ensure rule of law compliance and norm harmonization).
  • See eg Krisch (n 4); Paul Berman, ‘Global Legal Pluralism' (2007) 80 Southern California Law Review 1155.
  • See De Búrca (n 4) 38; Krisch (n 4) 23. For a succinct overview of the global legal pluralist literature see Ralf Michaels, ‘Global Legal Pluralism' (2009) 5 Annual Review of Law and Social Sciences 243.
  • Daniel Halberstam, ‘LJIL Symposium Vol 25–2: Beyond Constitutionalism? A Comment by Daniel Halberstam', www.opiniojuris.org/2012/07/06/ljil-symposium-vol-25–2-beyond-constitutionalism-a-comment-on-nico-krisch.
  • In constitutional pluralism ‘there is no hierarchy, no overarching legal system and no single arbiter. But the interaction is shot through with constitutional law and practice. It is both constitutional and plural' (ibid). See, inter alia, Krisch (n 4) 74; Neil Walker, ‘The Idea of Constitutional Pluralism' (2002) 65 Modern Law Review 317; Neil MacCormick, ‘Risking Constitutional Collision in Europe' (1998) 18 Oxford Journal of Legal Studies 517; Miguel Poiares Maduro, ‘Maduro' in Neil Walker (ed), Sovereignty in Transition (Hart Publishing, 2003) 501–38; Opinion of Advocate General Maduro, Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council of the European Union and Commission of the European Communities (16 January 2008); Daniel Halberstam and Eric Stein, ‘The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order' (2009) 46 Common Market Law Review 13; Alec Stone-Sweet, ‘A Cosmo politan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe' (2012) 1(1) Journal of Global Constitutionalism 53; Mattias Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Rela tionship between Constitutionalism In and Beyond the State' in Jeffrey L Dunoff and Joel P Trachtman (eds), Ruling the World: Constitutionalism, International Law and Global Government (Cambridge Univer sity Press, 2009) 258–325; Jean Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism (Cambridge University Press, 2012).
  • See Halberstam (n 12). Constitutional pluralism is therefore diffcult to distinguish from soft constitution alism: de Búrca (n 4) 4–39.
  • André Nollkaemper, ‘Inside or Out: Two Types of International Legal Pluralism' in Jan Klabbers and Touko Piiparinen (eds), Normative Pluralism and International Law: Exploring Global Governance (Cambridge University Press, 2013) 94–142. Krisch provides the foremost systemic pluralist analysis of UN terrorist listing (n 4).
  • Krisch (n 4) 2. See also Andreas Fischer-Lescano and Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law' (2004) 25(4) Michigan Journal of International Law 999.
  • In de Boer's strident criticism, systemic pluralism ‘amounts to an abandonment of positivism, deliberately shattering the aim of constitutionalism at the international level’: Tom de Boer, ‘The Limits of Legal Pluralism' (2012) 25 Leiden Journal of International Law 543. Constitutional pluralists and soft constitutionalists have also criticised this approach for conflating all constitutionalist approaches into the same monist camp as a ‘straw man’ for the purposes of underscoring the systemic pluralist case. See Halberstam (n 12) and de Búrca (n 4).
  • Whilst Krisch (n 4) considers the normative conflicts resulting from the enmeshment of different legal orders in the UN 1267 listing regime, he does so primarily through examination of how different courts (in the UK and EU) offer divergent interpretations of the proper relationship between the different layers of law involved and have deployed different strategies of reconciliation and resistance.
  • Elspeth Guild, ‘EU Counter-Terrorism Action: A Fault Line between Law and Politics?' in Liberty and Security in Europe, Centre for European Policy Studies (CEPS) Report (April 2010), 9.
  • Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering and Indigenous Law' (1981) 19 Journal of Legal Pluralism and Unoffcial Law, cited in Desmond Manderson, ‘Beyond the Provincial: Space, Aesthet ics and Modernist Legal Theory' (1995-6) 20 Melbourne University Law Review 1049.
  • Gregory Shaffer, ‘A Transnational Take on Krisch's Pluralist Structure of Postnational Law (2012) 23(2) European Journal of International Law 565, 577.
  • HLA Hart, The Concept of Law (Oxford University Press, 1961) 92–99.
  • Nikolas Rajkovic, Tanja Aalberts and Thomas Gammeltoft-Hansen, ‘Introducing the Power of Legality: Practices of International Law and their Politics', research project presented at the COST Action IS1003 meeting ‘Globalization and the Boundaries of Legality', Weimar, 11–13 December 2013. The authors seek to draw from the ‘practice turn’ in IR theory to reframe legality as a form of international practice.
  • Neil Walker, ‘Out of Place and Out of Time: Law's Fading Co-Ordinates', University of Edinburgh School of Law Working Paper No 2009/01, 16. See also Hans Lindahl, ‘Boundaries and the Concept of Legal Order' (2011) 2(1) Jurisprudence 73; Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality (Oxford University Press, 2013). Lindahl argues that ‘no sense can be made of the unity of a legal order unless legal orders are bounded in space, time, content and subjectivity’: Lindahl, ‘Boundaries and the Concept of Legal Order’, 74.
  • Walker (n 24).
  • Ibid, 36, 41–43.
  • Ibid, 32.
  • See Manderson (n 20) 1060.
  • Mireille Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (Hart Publishing, 2009) 149; Manderson (n 20). The problems of the UN 1267 sanctions regime, for example, are ordinarily framed in normative terms as either a conflict between two different yet synchronous legal orders (international security law and human rights law) or an issue of fundamental rights compliance in a context where the centripetal scalar hierarchy of international/regional/national legal ordering is commonly assumed as given, relatively stable and coherent.
  • See eg Jane Bennett, Vibrant Matter: A Political Ecology of Things (Duke University Press, 2010); Rita Abrahamsen and Michael Williams, Security Beyond the State: Private Security in International Politics (Cambridge University Press, 2011); Sandro Mezzadra and Brett Neilson, Border as Method, or, the Multiplication of Labor (Duke University Press, 2013); Michele Acuto and Simon Curtis (eds), Reassembling International Theory: Assemblage Thinking and International Relations (Palgrave Pivot, 2013); Marieke De Goede, Speculative Security: The Politics of Pursuing Terrorist Monies (University of Minnesota Press, 2012); Heather McKeen-Edwards and Tony Porter, Transnational Financial Associations and the Governance of Global Finance: Assembling Wealth and Power (Routledge, 2013); Manuel de Landa, A New Philosophy of Society: Assemblage Theory and Social Complexity (Continuum, 2006); Aihwa Ong and Stephen J Collier (eds), Global Assemblages: Technology, Politics, and Ethics as Anthropological Problems (Wiley-Blackwell, 2004); Bruno Latour, Reassembling the Social: An Introduction to Actor-Network Theory (Oxford University Press, 2007); Tania Murray Li, ‘Practices of Assemblage and Community Forest Management' (2007) 36(2) Economy and Society 263; Ben Anderson and Colin McFarlane, ‘Assemblage and Geography' (2011) 43(2) Area 124; Stephen Legg, ‘Assemblage/Apparatus: Using Deleuze and Foucault' (2011) 43(2) Area 128; John Allen and Allan Cochrane, ‘Assemblages of State Power: Topological Shifts in the Organisation of Government and Politics' (2010) 42(5) Antipode 1071; Mark Salter, ‘To Make Move and Let Stop: Mobility and the Assemblage of Circulation' (2013) 8(1) Mobilities 7.
  • However, see Peer Zumbansen, ‘Defining the Space for Transnational Law: Legal Theory, Global Governance and Legal Pluralism' (2012) 21 Transnational Law and Contemporary Problems 305 (which discusses at 332–5 the concept of global assemblages in relation to transnational law); Peer Zumbansen, ‘The Next “Great Transformation” of Markets and States in the Transnational Space: Global Assemblages of Corpo rate Governance & Financial Market Regulation', Osgoode Hall Law School CLPE Research Paper 09/2009 (which likens global assemblages and transnational legal pluralism, but argues (at i) that the former ‘needs to be complemented by a specifically legal perspective on the evolving forms of regulatory approaches and instruments'); Mariana Valverde, ‘Law's Chronotopes: The Logic, Scope, and Techniques of Legal Spatio-Temporalities', paper presented at the ‘Temporalities of Law' workshop, Max Planck Institute of Social Anthropology, Halle, 28–30 November 2012 (speaking of ‘sociolegal assemblages’ with complex configurations of scale).
  • Giles Deleuze and Felix Guattari, A Thousand Plateaus (University of Minnesota Press, 1987) 406.
  • See Li (n 30).
  • Stephen Collier, ‘Topologies of Power: Foucault's Analysis of Political Government beyond “Governmentality”' 26(6) Theory, Culture & Society 78.
  • See Delmas-Marty (n 29) 150.
  • Ibid.
  • Ibid, 164.
  • Saskia Sassen, ‘Neither Global Nor National: Novel Assemblages of Territory, Authority and Rights' (2008) 1(1–2) Ethics and Global Politics 61; Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton University Press, 2006).
  • Sassen, ‘Neither Global Nor National' (n 38) 62.
  • Sassen, Territory, Authority, Rights (n 38) 384. For a similar argument on this point see William E Scheuer-man, Liberal Democracy and the Social Acceleration of Time (Johns Hopkins University Press, 2004).
  • Mariana Valverde, ‘Questions of Security: A Framework for Research' (2011) 15 Theoretical Criminology 3, 8. Valverde argues that ‘only a framework that is itself dynamic, one that features relationships and movements rather than static categories', can grasp the complexities of security governance.
  • See Shaffer (n 21) 21–577.
  • Peer Zumbansen, ‘Transnational Law, Evolving', Osgoode Hall Law School CLPE Research Paper No 27/2011, 4.
  • Shaffer (n 21).
  • Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World Society' in Gunther Teubner (ed), Global Law without a State (Ashgate, 1997).
  • Gunther Teubner, ‘The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy' (1997) 31(4) Law and Society Review 763, 770.
  • See Sassen, ‘Neither Global Nor National' (n 38) 69.
  • See Ong and Collier (n 30) 12.
  • See Sassen, Territory, Authority, Rights (n 38) 378.
  • See Zumbansen, ‘Defining the Space for Transnational Law' (n 31) 312.
  • John G Dale and Tony Roshan Samara, ‘Legal Pluralism within a Transnational Network of Governance: The Extraordinary Case of Rendition' (2008) 2 Law, Social Justice & Global Development Journal, citing Sassen, Territory, Authority, Rights (n 38) at p 2.
  • See Valverde (n 41) 14. see also Mariana Valverde, ‘Analyzing the Governance of Security: Jurisdiction and Scale' (2008) 1 Behemoth: A Journal on Civilisation 3; Valverde (n 31). For a good example of such an analysis see Allen and Cochrane (n 30).
  • See Li (n 30) 265.
  • See eg Bruno Latour, Reassembling the Social: An Introduction to Actor-Network Theory (Oxford Univers Press, 2005); John Law, ‘Notes on the Theory of the Actor-Network: Ordering, Strategy, and Hetero neity' (1992) 5(4) Systems Practice 379; Michael Callon, ‘Some Elements of a Sociology of Translation Domestication of the Scallops and the Fisherman of St-Brieuc Bay' in John Law (ed), Power, Action a Belief: A New Sociology of Knowledge? (Routledge and Kegan Paul, 1986). For good analyses exploring t intersections between Actor-Network Theory and legal regulation see Alex Faulkner, Bettina Lange a Christopher Lawless (eds), ‘Material Worlds: Intersections of Law, Science, Technology and Society' (Special Issue) (2012) 39(1) Journal of Law and Society; Emilie Cloatre, Pills for the Poorest: An Exploration TRIPS and Access to Medication in Sub-Saharan Africa (Palgrave Macmillan, 2013); Kyle McGee, Bruno Latour: The Normativity of Networks (Routledge, 2014).
  • Alain Pottage, ‘Materiality of What?' (2012) 39(1) Journal of Law and Society 167, 181; Anya Bernstein, ‘T Hidden Costs of Terrorist Watch Lists' (2013) 61(3) Buffalo Law Review 461, 464, 485.
  • Ignacio Farias, ‘Introduction: Decentring the Object of Urban Studies' in Ignacio Farias and Thom Bender (eds), Urban Assemblages: How Actor-Network Theory Changes Urban Studies (Routledge, 2011)
  • See Zumbansen, ‘Defining the Space for Transnational Law' (n 31).
  • Gregory Shaffer, ‘Transnational Legal Ordering and State Change' in Gregory Schaffer (ed), Transnational Legal Ordering and State Change (Oxford University Press, 2013).
  • For a fascinating account of the idea of ‘multiple object’ in the medical feld, see Annemarie Mol, The Body Multiple: Ontology in Medical Practice (Duke University Press, 2002).
  • Shaffer (n 58) 7.
  • Zumbansen (n 31), following Luhmann—see eg Niklas Luhmann, ‘The World Society as a Social System' (1982) 8(3) International Journal of General Systems 131. Although ideas of transnational assemblage and transnational legal pluralism deploy different theories of the social, they can readily intersect in productive and conceptually enriching ways. For an example from border studies, see Mezzadra and Neilson (n 30) 30–167.
  • On the idea of ‘conceptual toolbox’ see Michel Foucault and Gilles Deleuze, ‘Intellectuals and Power' in Donald F Bouchard (ed), Language, Counter-Memory, Practice: Selected Essays and Interviews (Cornell University Press, 1977). For Deleuze, ‘A theory is exactly like a box of tools …It must be useful. It must function …It is an instrument for multiplication' (208).
  • I draw upon the valuable work of Kent Roach on this issue. see Kent Roach, ‘The Eroding Distinction between Intelligence and Evidence in Terrorism Investigations' in Andrew Lynch, Nicola McGarrity and George Williams (eds), Counter-Terrorism and Beyond (Routledge, 2010) 48.
  • Forcese and Roach observe that ‘the secret evidence/intelligence problem that lies at the heart of the 1267 listing issue is not always adequately appreciated’: Craig Forcese and Kent Roach, ‘Limping into the Future: The UN 1267 Terrorism Listing Process at the Crossroads' (2010) 42 George Washington International Law Review 217. See also Vanessa Baehr-Jones, ‘Mission Possible: How Intelligence Evidence Rules Can Save UN Terrorist Sanctions' (2011) 2 Harvard National Security Journal 447.
  • Jude McCulloch and Sharon Pickering, ‘Pre-Crime and Counter-Terrorism: Imagining Future Crime in the “War on Terror”' (2009) 49(5) British Journal of Criminology 628, 629; Marieke de Goede, ‘The Politics of Preemption and the War on Terror in Europe' (2008) 14(1) European Journal of International Relations 161; Louise Amoore, ‘Risk before Justice: When Law Contests its Own Suspension' (2008) 21(4) Leiden Journal of International Law 847;International Commission of Jurists, Assessing the Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights (2009), 91–122.
  • Al-Qaida Sanctions Committee, Guidelines of the Committee for the Conduct of its Work (30 November 2011), para 6(d).
  • David Cole, ‘Terror Financing, Guilt by Association and the Paradigm of Prevention in the War on Ter ror' in Andrea Bianchi and Alexis Keller (eds), Counterterrorism: Democracy's Challenge (Hart Publishing 2008); Cian Murphy EU Counterterrorism Law: Pre-Emption and the Rule of Law (Hart Publishing, 2012) 142–4. S/RES/2083 (2012) most recently broadened the standard to include association with anyone on the UN 1267 list.
  • Case T-85/09 Kadi v European Commission, 30 September 2010, paras 173–4 and 129–33.
  • Joined Cases C-584/10 P, C-593/10 P, C-595/10 P United Kingdom v Kadi, 18 July 2013 (unreported), para 124.
  • Ibid, 125.
  • See Li (n 30) 263.
  • For Biersteker and Eckert: ‘There is a real, and growing, political problem associated with the legitimacy, not only of the instrument of targeted sanctions, but increasingly of actions taken under Chapter VII by the UN Security Council itself. This is a fundamental challenge to an essential instrument of the international community to counter threats to international peace and security’: Thomas Biersteker and Sue Eckert, Addressing Challenges to Targeted Sanctions: An Update of the ‘Watson Report’ (October 2009), 4 (emphasis added).
  • Eleventh Report of the 1267 Monitoring Team, UN Doc S/2011/245 (13 April 2011), para 30.
  • ST 7795 2014 INIT, Draft Rules of Procedure of the General Court, 14 March 2014, http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%207795%202014%20INIT. Although the proposed changes are designed to meet the problems generated by targeted sanctions litigation, their scope expressly extends beyond this domain to all matters where the security of the EU, its Member States and/or their international relations are in issue (101).
  • A similar rule applies to ECJ proceedings (Art 54a, Rules of Procedure of the Court of Justice (OJ C177, 2 July 2010)).
  • Draft Rules (n 74) 101.
  • Ibid, 102.
  • Ibid, 104.
  • Ibid, 102.
  • Ibid, 104.
  • For a succinct overview of the key issues, however, see Gavin Sullivan, ‘Secret Justice inside the EU Courts' Al Jazeera, 19 April 2014, www.aljazeera.com/indepth/opinion/2014/04/secret-justice-inside-eu-court-2014417143255779945.html.
  • 'The Court made a suggestion: is this worth looking into? And so the Commission began looking into it.' Interview by the author with a member of the EEAS, Brussels, March 2013.
  • Interview by the author with a member of European Commission, Brussels, November 2012.
  • Ibid. Special advocates are security-vetted lawyers who can see the classified material and make submissions to the court about it, but are prevented from disclosing it to listed parties. For further discussion of the viability of special advocates in this context, see Cian Murphy, ‘Secret Evidence in EU Security Law: Special Advocates before the Court of Justice?' in David Cole, Federico Fabbrini and Arianna Vedaschi (eds), Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar, 2013); Christina Eckes, ‘Decision-Making in the Dark?-Autonomous EU Sanctions and National Classification', Amsterdam Law School Legal Studies Research Paper No 2012-64.
  • See above, n 82.
  • Ibid.
  • Ibid. The draft proposals were sent to the Council of the EU for approval in March 2014. See above, n 74.
  • Interview by the author with a member of European General Court, Luxembourg, March 2013.
  • Ibid.
  • David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press, 2006) 215.
  • See above, n 88.
  • Ibid.
  • Ibid.
  • Interview by the author with a member of European Court of Justice, Luxembourg, March 2013.
  • This judicial uncertainty was the focal point of resistance for a number of influential legal and human rights advocacy organisations—including the Law Society and Bar Council of England and Wales, Justice and Liberty—who privately corresponded with the Court of Justice in an effort to persuade them to engage in public consultation on the proposals. See, variously, Letter to the President of the Court of Justice of the EU (21 May 2013); Letter to the Chairman of the Bar Council of England and Wales (18 June 2013); Letter to the President of the Court of Justice of the EU (22 July 2013) (copies with author). This group of bodies has argued that the proposals could have ‘a serious substantive impact on the rule of law and rights of defence, which may affect the validity and legality of the amendments' (letter dated 22 July 2013).
  • See above, n 88.
  • Interview by the author with a Former Member of the UN 1267 Monitoring Team, New York, November 2012.
  • See above, n 82. This institutional opposition may yet dissipate, however, as a result of the ECJ's assertive 2013 decision in Kadi II.
  • See above, n 83. These comments were provided before the ECJ's 2013 appeal decision in Kadi II. It remains unclear whether (or how) Kadi II now provides a more optimistic outlook for EU institutions.
  • See above, n 97.
  • Richard Barrett, Comments in relation to Kadi II judgment (29 July 2013). Economic Sanctions Listserve (copy with author).
  • Case C-27/09 P French Republic v PMOI, Opinion of Advocate General Sharpston, 14 July 2011, paras 171–86, 244.
  • Ibid.
  • See above, n 88.
  • US Embassy Cable 09USUNNEWYORK818 (dated 4 September 2009), para 4.
  • Ibid. Rice is currently the United States National Security Advisor.
  • US Embassy Cable 09BRUSSELS616 (29 April 2009) (emphasis added).
  • Specifically, as a result of the 2008 decisions (i) of the EGC in PMOI and (ii) the ECJ in Kadi.
  • US Embassy Cable 09BRUSSELS41 (13 January 2009).
  • US Embassy Cable 10USEUBRUSSELS212 (24 February 2010).
  • Ibid (emphasis added).
  • Interview by the author with senior US government official, New York, June 2014.
  • See above, n 107. The development of procedural mechanisms for enabling courts to handle intelligence material has long been considered by the US government to be a benchmark of international best practice for the implementation of effective counterterrorism practice.
  • Brian Massumi, ‘The Future Birth of the Affective Fact', Conference Proceedings: Genealogies of Biopolitics (2005), http://browse.reticular.info/text/collected/massumi.pdf.
  • See Assessing the Damage report (n 65) 92, 118, 122–3.
  • See above, n 94.
  • Secretary of State for the Home Department v Rehman [2001] UKHL 47, para 56 (emphasis added).
  • Paul Rabinow, The Accompaniment: Assembling the Contemporary (University of Chicago Press, 2011) 123.
  • See Letter dated 22 July 2013 (n 95).
  • John Austin, Province of Jurisprudence Determined (Cambridge University Press, 1995 [1832]) 18–37.
  • Although the ECJ's reference in the 2013 Kadi II appeal decision (para 125) to the judicial use of special ‘techniques’ to protect disclosed information from harming legitimate security interests implicitly points in this direction of such reforms (n 69).
  • As suggested in Cian Murphy, ‘Counter-Terrorism and the Culture of Legality: The Case of Special Advo cates', Working Draft, SSRN (21), following Kim Lane Scheppele, ‘The Migration of Anti-Constitutional Ideas: The Post-9/11 Globalisation of Public Law and the International State of Emergency' in Sujit Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press, 2007).
  • For a good analysis of the emergence of the transnational ‘field of (in)security' see Didier Bigo, ‘Globalized (In)Security: the Field and the Ban-Opticon' in Didier Bigo and Anastassia Tsoukalas (eds), Terror, Insecurity and Liberty: Illiberal Practices of Liberal Regimes After 9/11 (Routledge, 2008) 10–48.
  • Ben Emmerson QC, Report of the Special Rapporteur on the promotion of human rights and fundamental freedoms while countering terrorism, UN Doc A/67/396 (26 September 2012), 5.
  • Ibid, para 26; Lisa Ginsborg and Martin Scheinin, ‘Judicial Powers, Due Process and Evidence in the Secu rity Council 1267 Terrorist Sanctions Regime: The Kadi II Conundrum', EUI Working Papers: RSC (2011), 9–10.
  • See Emmerson (n 124).
  • Simon Chesterman, ‘The Spy who Came In from the Cold War: Intelligence and International Law' (2006) 27 Michigan Journal of International Law 1071, 1115.
  • See above, n 97.
  • Thomas Biersteker and Sue Eckert, Due Process and Targeted Sanctions: An Update of the Watson Report (December 2012) 22–23.
  • See above, n 83 (emphasis added).
  • For a detailed analysis of the problems associated with the Ombudsperson's delisting processes, see Gavin Sullivan and Marieke de Goede, 'Between Law and the Exception: The UN 1267 Ombudsperson as a Hybrid Model of Legal Expertise' (2013) 26(4) Leiden Journal of International Law 833.
  • Interview by the author with Kimberly Prost, UN 1267 Ombudsperson, New York, November 2012 (emphasis added).
  • See Kadi 2010 (n 68) para 157.
  • See above, n 132 (emphasis added).
  • Ibid.
  • See above, n 97.
  • Ibid.
  • See Ginsborg and Scheinin (n 125) 18.
  • US Embassy Cable 10BRUSSELS219 (dated 25 February 2010).
  • US Embassy Cable 09ROME652 (dated 9 June 2009).
  • See Emmerson (n 124) para 26.
  • See above, n 83.
  • Ibid.
  • Ibid.
  • Interview by the author with a member of Council of the European Union, Brussels, March 2013.
  • Ibid.
  • See above, n 88.
  • Regulation (EU) No 1286/2009, amending Regulation (EC) No 881/2002.
  • Those who were already on the EU list implementing Resolution 1267 prior to the Kadi judgment were similarly empowered to ask for a statement of reasons and invited to submit representations that the Commission must take into account before taking their final decision on continued designation.
  • US Embassy Cable 09BRUSSELS1524 (13 November 2009). Fini is now Head of Sanctions at the EEAS.
  • See Kadi 2010 (n 68) para 171.
  • See above, n 88.
  • See Kadi II (n 69) para 114.
  • See above, n 101.
  • Interview by the author with a member of the European Commission, Brussels, October 2013.
  • See Kadi II (n 69) para 79. Whilst in this citation the Court is referring to the submissions of the Commission, Council and United Kingdom, it is clear that this position is implicitly accepted by the Court in its reasoning at paras 117–29 and by its regard for ‘the preventative nature of the restrictive measures at issue’ (130).
  • See Kadi 2010 (n 68). The ECJ qualified this requirement (paras 116–18) in Kadi II by insisting that the statement of reasons must be specific and concrete enough to comply with Art 296 TFEU.
  • The ‘effective remedy’ problem is related to yet distinct from the problem of exceptionality—it refers to the inability of listed parties to access an independent review mechanism for challenging their designation rather than the lack of any independent decision-making process or substantive assessment to justify executive action. Whilst lack of effective remedy clearly exacerbates this exceptionality, the obverse is not necessarily the case.
  • According to Shaffer (n 58), ‘recursivity connotes a multidirectional, diachronic process of legal change …in which the transnational and the local are held in tension, in which actors engaged in transnational legal processes seek to influence local lawmaking and practice, and in which national legal norms, adaptations and resistances …feed back into transnational lawmaking' (13–4). See also Terence Halliday and Bruce Carruthers, ‘The Recursivity of Law: Global Norm Making and National Law Making in the Globalization of Corporate Insolvency Regimes' (2007) 112(4) American Journal of Sociology 1135; Terence Halliday, ‘Recursivity of Global Lawmaking: A Sociolegal Agenda' (2009) 5 Annual Review of Law and Social Science 263.
  • Collier (n 34). For an excellent analysis of transnational law as a technique of spatial production, see Philip Liste, ‘Transnational Human Rights Litigation and Territorialized Knowledge: Kiobel and the “Politics of Space”' (2013) 5(1) Transnational Legal Theory.
  • Kim Lane Scheppele, ‘The International State of Emergency: Challenges to Constitutionalism after Septem ber 11', Yale Legal Theory Workshop, 21 September 2006 (unpublished manuscript), 5. Executive power is expanded by extending its global reach and providing it with the normative force of Ch VII resolutions.
  • Mathias Koenig-Archibugi, ‘International Governance as the New Raison d' État? The Case of the EU Common Foreign and Security Policy' (2004) 10(2) European Journal of International Relations 147.
  • Ibid.
  • Klaus Dieter Wolf, ‘The New Raison d'État as a Problem for Democracy in World Society' (1999) 5(3) European Journal of International Relations 333.
  • Anne-Marie Slaughter, ‘The Real New World Order' (1997) 76(5) Foreign Affairs 184.
  • Raustiala argues, for example, that ‘on balance’ the rise of transnational networks ‘should improve liberal internationalism as a tool of global governance’: Kal Raustiala, ‘Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law' (2002) 43(1) Virginia Journal of International Law 1, 9. Slaughter optimistically notes that ‘judges around the world are coming together in various ways' through transnational networks in order to build ‘a formal global legal system’: Anne-Marie Slaughter, A New World Order (Princeton University Press, 2004) 102.
  • See Darian-Smith (n 1) 8. For a similar overview of ‘state-centred traditionalist approaches’ to such issues see Craig Scott, ‘“Transnational Law” as Proto-Concept: Three Conceptions' (2009) 10(7) German Law Journal 868–9.
  • Scott, ibid, 868.
  • See Sassen, ‘Neither Global Nor National' (n 38) 61.
  • See Scott (n 167) 874.
  • See Valverde (n 41) 14.
  • See Darian-Smith (n 1) 8.
  • Liste (n 160) 15.
  • See Dyzenhaus (n 90) 3. The spatial politics of the UN 1267 listing assemblage are intimately tied to the production of transnational exceptionality. For analyses stressing the specifically spatial dimension of the exception, see Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998); Oliver Belcher, Lauren Martin, Anna Secor, Stephanie Simon and Tommy Wilson, ‘Everywhere and Nowhere: The Exception and the Topological Challenge to Geography' (2008) 40(4) Antipode 499; Stephen Legg (ed), Spatiality, Sovereignty and Carl Schmitt: Geographies of the Nomos (Routledge, 2011).
  • See above, n 88.
  • Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (University of Chicago Press, 2006) 32.
  • Fleur Johns, Non-Legality in International Law: Unruly Law (Cambridge University Press, 2013) 31.
  • For analyses that stress the co-constitution of law and exceptionality, see inter alia Sullivan and de Goede (n 131); Claudia Aradau, ‘Law Transformed: Guantánamo and the “Other” Exception' (2007) 28(3) Third World Quarterly 489; Audrey Macklin, ‘The Rule of Law, The Law of Men, and the Rule of Force' in Janice Williamson (ed), Omar Khadr, Oh Canada (McGill-Queens University Press, 2012) 225; William Connolly, ‘Complexity of Sovereignty' in Jenny Edkins, Veronique Pin-Fat and Michael J Shapiro (eds), Sovereign Lives: Power in Global Politics (Routledge, 2004); Derek Gregory, ‘The Black Flag: Guantánamo Bay and the Space of Exception' (2006) 88(4) Geografska Annaler 404; Fleur Johns, ‘Guantánamo Bay and the Annihi lation of the Exception' (2005) 16(4) European Journal of International Law 613; Nasser Hussain, ‘Beyond Norm and Exception: Guantanamo' (2007) 33(4) Critical Inquiry 734, 740–1; Scheppele (n 161).
  • Scheppele (n 161) 42. For Scheppele, the rapid domestic uptake of post-9/11 UN counterterrorism law had the radical effect of changing ‘the legal bases of state action’, yet this shift has remained hidden to lawyers because ‘it occurs in the interstices between’ international and domestic constitutional law. She therefore argues that ‘we cannot understand what has happened since September 11 until we can see both international and domestic law together in thinking about the slide into emergency powers'. The conceptual framework of transnational legal assemblage that this paper introduces is intended to build on Scheppele's important work on this issue by foregrounding both the transnational dimension of exceptionality in this domain and the centrality of the temporal and spatial dimensions to normative conflicts and effects it produces.
  • See Scott (n 167) 875.
  • The intimate connection between temporal and spatial changes in this particular legal context supports Valverde's argument that ‘scope’—that is, both temporal and spatial scale, as well as jurisdiction—is a critical important, but much neglected, dimension of analysis for understanding contemporary security governance. For Valverde, however, ‘scale itself does not suffce as a vector of [socio-legal] analysis' because spatio-temporal ordering always needs to be supplemented by an examination of ‘the jurisdiction that is deployed or claimed’ (n 31) 13. Whilst I agree with this argument, analysis of jurisdictional conflict has been omitted from this paper because it is already comprehensively covered in the vast body of Kadiliterature.
  • See Baehr-Jones (n 64) 64–465.
  • US Embassy Cable 06USUNNEWYORK1609 (22 August 2006).
  • See Sullivan and de Goede (n 131) 835.
  • See Zumbansen, ‘Defining the Space for Transnational Law' (n 31) 36.
  • Shaffer (n 58) 29.
  • Liste (n 160).
  • See Zumbansen, ‘Defining the Space for Transnational Law' (n 31).
  • See Johns (n 177) 23.
  • William Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge University Press, 2009) 116.
  • See Johns (n 177) 27.
  • Saskia Sassen, A Sociology of Globalization (WW Norton, 2007) 34.
  • Emilios Christodoulidis, ‘Strategies of Rupture' (2009) 20(1) Law and Critique 3.

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