In your “1998 Frankel Lecture: Bringing International Human Rights Home” you urged us “to promote obedience to international law” and told us that “we have a duty not simply to observe transnational legal process, but to try to influence it.” This is what I’m going to do, try to influence the U.S. through you. As a philosopher I am not convinced by your above arguments. I’ll have a couple of questions and two suggestions for improvement of the International Law.
Imagine that the relatives of Osama bin Laden disagree with your legal argument and wish to challenge it in a court of law, as they told New York Times. Is there any court where they can do that?
They cannot sue U.S. in Pakistani courts, because of the state immunity.
You contributed greatly to the book “International human rights litigation in U.S. courts.” You participated as lawyer in Alien Tort Statute litigation. Therefore you probably agree with Jeffrey Davis when he writes in his book “Justice across borders: the struggle for human rights in U.S. courts” on page 90 the following: “When ATS suits are prosecuted against the United States and U.S. officials they typically fail. To date plaintiffs have been unable to overcome the government’s sovereign immunity, political question, and state secrets defenses.” The question is: If bin Laden’s relatives wanted to start a legal procedure in U.S. courts, what is their chance of getting a court to hear their case? Probably none.
Can they sue U.S. in international courts? No. Various German, French, Norwegian and Dutch propositions to admit private individuals as parties to the Permanent Court of International Justice were opposed by the American representative. ICJ inherited its rules. The U.S. opposed also the very serious Australian proposition of creating an International Court of Human Rights, during the talks about the Universal Declaration.
Thus we don’t have any court where bin Laden’s relatives could challenge your legal arguments.
Therefore it seems to me that U.S. is the sole arbiter of its own conflicts and this is a violation one of the most fundamental principles of law, that nobody should be judge in her own case.
The people outside the developed countries believe that U.S. has committed, commits and will keep committing great crimes against them. Technology becomes with the day cheaper, more available and more destructive. Think for instance how the two snipers kept the U.S. for months in anxiety. Therefore people will keep committing terrorist attacks against U.S.
The wars in Iraq and Afghanistan will cost U.S. three trillion or more. And the economy does not promise you golden eggs nowadays. Therefore the U.S. and the world has a problem.
The solution to this deadlock seems obvious. The U.S. should change its way radically. It should do two things. First it should make the International Court work, by stimulating the declarations accepting it’s jurisdiction or working towards some form of compulsory jurisdiction. Secondly individuals should have the possibility to sue states at international courts, for instance in newly created courts for human rights, modeled after the European one.
Mihai Martoiu Ticu