17 Nov U.S. Off of the UN’s International Law Commission
The member-states of the UN elected the membership of the International Law Commission yesterday. For the first time since the founding of the ILC in 1947, the United States does not have a national sitting on the Commission. This is bad for U.S. diplomacy and it may be indicative of the shifting sands of power at the UN.
The ILC works at the codification of international law through the drafting of multilateral treaties and the progressive development of the law through fundamental studies on important topics. (It’s statute is here.) Thirty-four individuals are elected to serve on the ILC in their individual capacities for five year terms. Not two ILC members may be from the same state.
While ILC members do not officially represent their country-of-origin, having a national as a member of the Commission is usually viewed as a means of having that state’s views heard. It is a valuable diplomatic asset. And, for the first time in nearly 60 years, it is one that we do not have.
What could be going on? Its definitely was not an issue of the candidate, Michael Matheson, who had a distinguished career at the State Department , is essentially the dean of (ex-)State Department lawyers, and one of the most respected international lawyers from the U.S.
Perhaps part of this was the result ongoing attempts at punishing the Bush Administration for its various stances. But I think there may be something else at play as well: a possible shift in power at the UN due to the strength of voting blocs and alliances. Members of the ILC are elected within groups. The U.S. and Canada are part of a group with the states of Western Europe from which eight members may be chosen. Here’s how the totals came out for this region:
Western European and Other States (8 seats)
Number of ballot papers: 190
Number of invalid ballots: 0
Number of valid ballots: 190
Abstentions: 0
Required majority: 95
Number of votes obtained:
Ian Brownlie (United Kingdom) 156
Georg Nolte (Germany) 154
Donald M. McRae (Canada) 149
Marie G. Jacobsson (Sweden) 146
Giorgio Gaja (Italy) 144
Paula Ventura de Carvalho Escarameia (Portugal) 133
Alain Pellet (France) 127
Lucius Caflish (Switzerland) 121
Michael Matheson (United States) 114
Constantine Economides (Greece) 107
Ruaf Versan (Turkey) 96
What we are seeing here may be an example of structural power: as the EU member states can be expected to vote for each other and the U.S. (probably) does not have any “sure” votes from within the group (except perhaps for the U.K.’s vote), then it will have a few less votes than each of the EU candidates. In a tight race, that can make all the difference. Only two of the eight members elected were not from the EU—but Canada and Switzerland are noted for their internationalism and that may also give them a crucial margin.
International institutions (such as the EU) can organize and leverage power such that its member state can have increased power within another international organization (the UN). And, more generally, being viewed as a “good citizen” who respects international law brings a certain persuasive cache all its own (Joe Nye’s “soft power”).
An unfortunate situation for the U.S., in this case, but hopefully a lesson learned. (If this is actually due to bloc voting and/or views as to a state’s “good citizenship.”)
As for the overall results, here is the new composition of the ILC:
Ian Brownlie (United Kingdom)
Lucius Caflish (Switzerland)
Enrique Candioti (Argentina)
Pedro Afonso Comissário (Mozambique)
Christopher John Robert Dugard (South Africa)
Paula Ventura de Carvalho Escarameia (Portugal)
Ali Moshen Fetais Al-Marri (Qatar)
Salifou Fomba (Mali)
Giorgio Gaja (Italy)
Zdzislaw W. Galicki (Poland)
Hussein A. Hassouna, (Egypt)
Mahmoud D. Hmoud (Jordan)
Marie G. Jacobsson (Sweden)
Maurice Kamto (Cameroon)
Fathi Kemicha (Tunisia)
Roman Anatolyevitch Kolodkin ,(Russian Federation)
Donald McRae (Canada)
Teodor Viorel Melescanu (Romania)
Bernd Niehaus (Costa Rica)
Georg Nolte (Germany)
Bayo Ojo (Nigeria)
Alain Pellet (France)
Amrith Rohan Perera (Sri Lanka)
Ernst Petrič (Slovenia)
Gilberto Vergne Saboia (Brazil)
Narinder Singh (India)
Eduardo Valencia-Ospina (Colombia
Edmundo Vargas Carreño (Chile)
Stephen C. Vasciannie (Jamaica)
Marcelo Vázquez-Bermudez (Ecuador)
Amos S. Wako (Kenya)
Nugroho Wisnumurti (Indonesia)
Xue Hanqin (China)
Chusei Yamada (Japan)
The nationality of candidates does play a role in all international elections, but do not underplay that who they are (character, charisma, fame, scholarship, etc.) is equally (or maybe even more) important, especially for bodies like this where capacity to deliver and do the intellectual heavy work that being on the ILC entails is important (as opposed to say, the US being elected to the Human Rights Council).
I am quite certain that had the U.S. put forward one of its many international law heavy weights (you pick), the results would have been a tad better, maybe to the tipping point. Trust me: foreigners know very well how to distinguish between Americans and their government.
I guess it’s just that I consider Matheson such a heavyweight. I think the European style has been more along the lines of choosing professors as candidates; although Matheson is teaching now, he is not a career academic and had made his career in government service at the highest levels of diplomatic and ICJ practice.
Regardless of the reason– punishing the U.S., a shift in power due to voting blocs, or favoring acadmics over practitioners (or some other reason I had not thought of)– I just thought this was a somewhat surprising result and one that weakens not only the U.S., but the ILC as well.
Maybe someone really wants to weaken the ILC. I am no conspiracy theorist, not prone to see sabotages, but it seems to me that this administration, and this ambassador at the UN, are surely not going out of their way to get the US in UN bodies. Perhaps they are trying to make the not-so-subtle point that “The UN does not like us, look they do not vote for our guys! hence we are right to shun it”?
Luckyly Buergenthal was reappointed at the ICJ a few years ago and will stay on well beyond the next elections, otherwise we would have another first in the UN history….
My colleague and good friend Cesare Romano is far more knowledgeable of the workings of international bodies such as the UN than I so I think his opinion on this issue merits more weight than my own. But doesn’t it also seem likely that given the U.S. failure to adhere to Kyoto, withdrawal from the ICC, willingness to depart from Geneva Convention provisions, and outspoken opposition to the application of international law in our courts, that the electors for this body might consider current U.S. participation to be inappropriate and have quite rationally favored the election of candidates from countries showing more respect for international law?
Your points and mine are not mutually exclusive.
Again, keep in mind that in elections of bodies like this nominees might be able to secure their own votes, besides those brought home by the government as result of diplomacy. Small countries manage to get elected a number of their own nationals larger than their diplomatic weight would suggest because of the personal factor. Often delegates vote not because they received specific instructions from home (that is the case of a lot of countries that do not have a well-developed ministry back home), but because they know (or think to know) the nominee and are impressed. In this regard, academic fame definitively plays a bigger role than a long record in the governmental service.
This is no secret. Thus, a country that does not play the “personality” card does that a) because it thinks that diplomacy alone will bring home the bacon; b) it really does not care to get that seat filled, thus can take the risk c)….. fill in…
Just to avoid misunderstandings, please let me make clear that I am using this event to make a general point about the fact that in some elections nationality is not the only factor in play, and that in some elections (like the ILC) “personal” factors might play a role, which, at times, it might be determinant. I am also making a point that this administration is not, in my opinion, trying very hard to be in the UN and work with the UN. On this specific election more could be done, in my opinion, both to endorse Matheson or to push forward another marquee candidate. Both could have been equally good means to achieve the end. I am passing no judgment on Matheson. All I want to say is that considering the fact that these days the US cannot anymore count only on the goodwill and friendship of the rest of the world, there might have been other American candidates that could immediatedly ring a bell in some delegate’s mind (someone who took a course or two of international law and saw that name in a footnote) and that would have been enough for the American candidate to make it.… Read more »
International elections are complex affairs, where a number of factors come in play besides the classical “diplomatic” considerations. Just to give you an example: two years ago the term of a number of judges of International tribunal for the Law of the Sea expired. Elections were held. The United Kingdom (rule Britannia, Britannia rule the waves) lost to Austria, a land-locked country! What happened? Surely there was no conspiracy of Members to UNCLOS to kick the UK out of ITLOS, no desire to punish it. It is only that the UK did a weak campaign believing it that just being the UK was enough to guarantee re-election of Judge Anderson. Austria, being the underdog in this race within the Western group, campaigned for two years very intensively. What could the UK do to try to fend off Austrian’s competition? In my opinion two things: a) Put some more effort in campaigning; b) maybe put forward someone like Vaughan Lowe as nominee, a marquee candidate, a name highly recognizable by anyone who skimmed through a law of the sea book. Again, most delegates at international elections do their homework, most get clear instructions, but a few do not. Swinging them might… Read more »