Aside from Taliban extremists, Al Qaeda fundamentalists in Yemen and some unbalanced individuals elsewhere, it is pretty difficult to find anyone who empathized with Osama Bin Laden or considered his death to be the world’s loss. And yet shortly after President Obama announced that a Navy SEAL team had killed Bin Laden, Reuters reported that U.N. High Commissioner for Human Rights Navi Pillay has already publicly called upon the US “to give the U.N. details about Osama bin Laden’s killing and said that all counter-terrorism operations must respect international law.” Der Spiegel ran an article under the headline “Was Bin Laden’s Killing Legal?” Somehow a counter-terrorist operation that resulted in what U.N. Secretary-General Ban Ki Moon termed a “watershed moment in our common global fight against terrorism” is already being turned against the United States in the guise of legal rhetoric.
How has this manipulation of international law managed to become increasingly prevalent? As law professor David Bernstein pointed out at The Volokh Conspiracy, the Der Spiegel article is indicative of a ‘cult of international law,’ in which “cultists are inclined to take the most restrictive, often extremely tendentious view of international law, in which international law becomes a substitute for otherwise passe leftist pacifism or anti-Americanism.” And unsurprisingly, the United Nations is playing a role that has gone largely under the radar.
By any objective set of criteria, the United Nations is not a lawmaking body; its Charter was written by governments “overwhelmingly opposed to conferring on the United Nations legislative power to enact binding rules of international law.” Even the Security Council’s resolutions aren’t binding because of any real legal authority. Rather, the Security Council’s permanent members constitute the nations with the greatest political power and for that reason, its resolutions may be backed up by considerable political and military force.
The Charter of the International Court of Justice sets out the substance of international law as composed primarily of treaties, by which nations affirmatively bind themselves, international conventions “establishing rules expressly recognized by the contesting states, “international custom, as evidence of a general practice accepted as law” and “the general principles of law recognized by civilized nations,” and, to a lesser extent, ” judicial decisions and the teachings of the most highly qualified publicists of the various nations”
However, it would be a mistake to assume that the General Assembly is entirely removed from the development of international law, even if it cannot directly govern in that sphere. In fact, since 1949 there has existed a standing body of the General Assembly specifically tasked with “encouraging the progressive development of international law and its codification.”
That body is the International Law Commission (ILC), and it was initially composed of experts in international law, who represented “as a whole the chief forms of civilization and the basic legal systems of the world.” Initially 15 members (A/RES/174 (II)), as new states joined the United Nations the ILC was expanded, first to 25 members in 1961 (A/RES/1674), and then to its present 34 members in 1981 (A/RES/36/39). ILC terms of office are for six-year periods, and elections are held upon the resignation or death of members. To date, over 25 ILC members have been elected to serve on the International Court of Justice, forming a total of approximately a quarter of the Court’s membership.
Beginning in 1981, the ILC’s membership has been apportioned on the basis of geographical regions, an idea initially devised to achieve “adequate representation” throughout the UN, which meant in practice, representation and increased power for the growing number of developing nations that became UN members during the 1960s. Each region is allotted a set number of representatives, but each General Assembly member-state votes on every candidate vying for a regional membership spot.
Though the ILC’s membership has diversified accordingly, several prominent nations have been regularly represented through their elected members. The Soviet Union was always represented up until its fall in 1991; the Russian Federation has been represented ever since. Of the other permanent members of the UN Security Council, the United Kingdom, China and France have all been consistently represented through and until the present day.
Unfortunately, the United States has not had a representative on the ILC since 2006, when Michael J. Matheson, who had served as a replacement member from 2003-2006 was nominated, but not elected. Professor Matheson, currently at George Washington School of Law, fell seven votes shy of the last elected nominee from the Western Europe and other States Region. Accordingly, the only ILC member from North America over the past five years has been Canada’s Donald McRae.
The American system of law is unquestionably anomalous and extremely protective of fundamental human rights. The American conception of free speech in particular remains a uniquely progressive protection, yet for the past five years there has been no American viewpoint represented at the ILC. It should be absurd to think that a highly influential nation such as the United States, one with unparalleled commitment to the rule of law and due process for its citizens, could go unrepresented at the ILC. Though Canada maintains a presence, its legal and constitutional development cannot be reasonably interpreted as similar to that of the United States, since it is far closer to the British system.
Moreover, Egypt and Tunisia, two nations that have seen their governments recently toppled in the name of democracy, are currently represented at the ILC while the United States – which is exponentially more accountable to its citizens under its Constitution – has been left out.
The next elections for the ILC will be held at the end of 2011, and there is no guarantee that the members of the General Assembly will elect a U.S. representative. Even though the voting process will be political and anti-American sentiment may well factor in, it would be a serious error to allow political considerations to keep the United States – a driving force in the development of international law and the rule of law generally since the early 20th Century- out of the process. Not only is it in the interests of the United States to aggressively push for representation at the ILC, it is beneficial for the development of an objective international rule of law to have the American legal viewpoint represented once more.