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.