The Revolving Door Between the U.S. Legal Academy and the UN

by Julian Ku

Walter Olson at Cato has a sharp observation here at the Daily Caller, on the revolving door between U.S. international law professoriate and various UN bodies.

Mr. Anaya, the U.N. rapporteur, was sent on his mission by none other than the U.N. Human Rights Council, notorious, as Doug Bandow has written, for being “dominated by human rights abusers and their enablers.” (Fidel Castro has a seat, as did Libyan dictator Moammar Qaddafi until his overthrow.) What you wouldn’t have realized from most of the news reports — an exception was Claudia Rosett’s — is that Anaya is not just parachuting in from some U.N. redoubt in Geneva or the Hague. He’s an American law professor based at the University of Arizona and active in particular in the school’s Indigenous People’s Law and Policy Program, which he drew on to support his U.N. probe (he’s due to report to the Council itself this fall).

There’s a wider story here, which I told at some length in Chapters 10 and 11 of my book “Schools for Misrule” last year. In the 1970s, with inspiration from the law schools and backing from the Ford Foundation and other liberal funders, some advocates began a sustained effort to resuscitate old Indian land claims (often in the process casting a cloud on the title of European-descended occupants who have farmed or ranched the land for one or even two centuries). After years of havoc and uncertainty of rights, the U.S. courts in the past decade came down against the tribal claims, ruling that they are grounded neither in the Constitution nor in applicable statutory law. As it became clear that the land-claim litigation would fail in U.S. courts, advocates launched a new strategy of involving the U.N. system and other international organizations on the grounds that to deny the tribes the right to reoccupy old lands would be to violate their international human rights. Very helpful in this process has been the advance of a document called the U.N. Declaration on the Rights of Indigenous Persons (UNDRIP), which the U.S. long opposed and then, in an Obama turnabout last year, decided to support.

I think Olson is on to something here. First, he is undoubtedly right that various UN human rights bodies have become a court of last resort for advocates who have failed in domestic U.S. proceedings. (See, e.g., the NAACP’s failed effort to block voter ID laws). Second, he is also right that U.S. law professors, and indeed other law professors, often have a deeply intertwined relationship with UN Bodies, like the UN Human Rights Commission, that appoint them to various positions.  I’m not sure there is anything nefarious about this, but I think he is right that the standards for recognizing particular legal claims are different, and much more generous, in an international forum than in a domestic one. And that the aura of international objectivity that some might accord to a UN probe is largely undeserved.

http://opiniojuris.org/2012/05/13/the-revolving-door-between-the-u-s-legal-academy-and-the-un/

2 Responses

  1. “First, he is undoubtedly right that various UN human rights bodies have become a court of last resort for advocates who have failed in domestic U.S. proceedings.”

    This is hardly surprising, as monitoring bodies were established as subsidiary means of recourse. That’s why admissibility of claims generally requires exhaustion of local remedies. On the other hand, UN special procedures — such as Mr Anaya’s mandate — are not judicial organs, and their decisions cannot be compared to binding legal judgement, so its not really a matter of these organs being ‘courts of last resort’.

    “Second, he is also right that U.S. law professors, and indeed other law professors, often have a deeply intertwined relationship with UN Bodies, like the UN Human Rights Commission, that appoint them to various positions.”

    Holders of mandates from special procedures have overwhelmingly been professors. This is, in part, because they are not remunerated by the UN (and must therefore retain some form of gainful employment on the side), and because among the other possible professional outlooks (NGO, private practice), professors are expected to be more knowledgeable, impartial, and flexible in terms of time. Whether this is in fact the case, must certainly vary according to one’s conception of impartiality, knowledge, etc.

    “I’m not sure there is anything nefarious about this, but I think he is right that the standards for recognizing particular legal claims are different, and much more generous, in an international forum than in a domestic one.”

    They are also mostly devoid of practical implications, particularly in powerful countries, such as the US, China or Russia, that have traditionally ignored decisions and recommendations issued by these mechanisms. That standards applied by international institutions are different from those applied by local courts is both trivial and necessary: there would be little point in having an international institution if it were to simply rubber-stamp national policies, and adhere strictly to its own legal definitions; no point in having the CAT, for instance, if its monitoring body were bound by Syria’s definition of torture (or, as a matter of fact, the USA’s). Without interpretative autonomy, these institutions have no purpose.

    “And that the aura of international objectivity that some might accord to a UN probe is largely undeserved.”

    There is a tremendous leap between saying that the selection of UN mandate-holders favours a specific class of professionals (professors), and saying that because of that, these mandates somehow fail an ‘objectivity test’. It also begs the question of who would be a ‘more objective’ mandate-holder. What non-binding UN special procedure recommendations do is state the law as seen from the international monitoring body, and push states towards recognizing this particular standard of rights-protection. In doing so, they provide a discursive opportunity for different actors, domestic and international, to discuss — at different levels — what a right is and how it should be implemented.

    Nothing ‘objective’ about any of this, but rather the purposive effort to extend the writ of rights and ensure their better implementation. It’s all done in the open: worry not, Mr. Ku, the time where Mr Anaya will issue binding legal determinations from behind the veil of secrecy are far away. In the meantime, you might consider focusing some of your critical energies on the revolving doors between professorships, law firms, and investment arbitration. In this field the fearful dystopia you paint is already a reality.

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