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The Idea of Global Public Law: Response To Unbound Symposium Essays

Part of: Devika Hovell, “Due Process in the United Nations”

Published online by Cambridge University Press:  20 January 2017

Devika Hovell
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Law abhors a vacuum. Lawyers (including international lawyers) have constructed their profession around the fiction that such a thing is impossible. Where gaps emerge in a legal framework, lawyers face the task of filling it, compromised by the additional hurdle of having to pretend there was no gap in the first place.

The challenge has intensified with the ever-widening and deepening accountability gap that has accompanied the growth of global governance. In the period between H.G. Wells’ writing of The New World Order and the drafting of Security Council resolutions 827, 1267, 1373, and 1540, global governance has evolved from an idea of utopian/dystopian fiction to reality. In a recent article in the American Journal of International Law on “Due Process in the United Nations,” I argue that as legal academics we are justified in taking a more architectural role in proposing a legal framework to fill the good-governance-size hole in this emerging tier of governance. Essayists in the AJIL Unbound Symposium convened in response to my article raised interesting (and fairly fundamental) challenges to the methodology proposed. The hosts of the symposium kindly offered me the chance to respond—I took them up. There may be gaps in international law, but never silences.

Type
Symposium on Devika Hovell, “Due Process in the United Nations”
Information
AJIL Unbound , Volume 110 , 2016 , pp. 80 - 83
Copyright
Copyright © American Society of International Law 2016

References

1 See Roger O’Keefe’s enduring satire of international lawyers: O’Keefe, Roger, Once upon a time there was a gap…, EJIL: Talk! (Dec. 8, 2010)Google Scholar.

2 Hovell, Devika, Due Process in the United Nations, 110 AJIL 1, 2 (2016)CrossRefGoogle Scholar.

3 O’Keefe, supra note 1.

4 Mitrany, David, The Functional Approach to World Organization, 24 Int’l Aff. 350, 351 (1948)CrossRefGoogle Scholar.

5 See, e.g., Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 ICJ REP. 151 (July 20).

6 Alvarez, Jose E., International Organizations as Law-Makers 585 (2005)Google Scholar.

7 Klabbers, Jan, Theorizing International Organizations, in The Oxford Handbook of the Theory of International Law 618 (Orford, Anne & Hoffmann, Florian eds., 2016)Google Scholar.

8 Id. at 620.

9 Martin, Loughlin, The Idea of Public Law 155 (2004)Google Scholar.

10 Huneeus, Alexandra, Introduction to Symposium on Devika Hovell, “Due Process in the United Nations”, 110 AJIL Unbound 1, 2 (2016)CrossRefGoogle Scholar.

11 Tzanakopoulos, Antonios, Theorizing or Negotiating the Law?: A Response to Devika Hovell, 110 AJIL Unbound 3, 3 (2016)CrossRefGoogle Scholar.

12 Id. at 6.

13 Id. at 7.

14 Gordon, Joy, Due Process and the Iraq Sanctions: A Response to Devika Hovell, 110 AJIL Unbound 13, 13 (2016)CrossRefGoogle Scholar.

15 Id.

16 Freedman, Rosa, UN-Accountable?: A Response to Devika Hovell, 110 AJIL Unbound 8, 9, 12 (2016)CrossRefGoogle Scholar.

17 Id. at 12.

18 Shaffer, Gregory & Ginsburg, Tom, The Empirical Turn in Legal Scholarship 106 AJIL 1, 9 (2012)CrossRefGoogle Scholar.

19 Id . at 1.

20 Id . at 45.

21 Klabbers, supra note 7, at 630, 618.

22 Tzanakopoulos, supra note 11, at 6.

23 Joined Cases C-584/10 P, C-593/10 P & C-595/10 P, Comm’n v. Kadi, ECLI:EU:C:2013:518., para 134.

24 Georges v. United Nations, No 15-455, (2d Cir. Aug. 18, 2016).

25 Loughlin, supra note 9, at 155.

26 Başak Çali, The Authority Of International Law (2015); Nicole Roughan, Authorities (2013).

27 Çali, supra note 26, at 47.

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30 Loughlin, supra note 9, at 156, 160