International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Winter 2018 Issue

Global Judicial PERSPECTIVe


The United States Role in Receding International Rule of Law

Richard J. Goldstone

By: Richard J. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor Monitor

At the bedrock of democracy lies the rule of law. It has a number of components. At its core is: the separation of powers between the legislature, the executive and the judiciary; the independence of the judiciary; an independent legal profession; equality before the law, and due process. If any of those principles is compromised, the consequences for democracy are devastating and destructive.

In our present age of populism, the rule of law is being sorely tested. In the leading democracy, the United States, President Trump frequently attacks the freedom of the press accusing it of publishing “fake news”. He has attacked judges who rule against him as being biased. At the same time, the main organs of democracy, the Congress, the Judiciary and the press continue to operate freely and independently. As long as that continues there is little prospect of permanent damage to the rule of law in the United States. The same cannot be said about the short term or about United States actions to undermine the rule of law on the international stage.

Similar rule of law concerns relate to my own country, South Africa. President Zuma stands accused, together with his inner circle, of corruption and what is locally called “state capture”. He denies these allegations. The courts, and especially the Constitutional Court, have called Zuma to account and there is a good prospect that the allegations will be independently investigated. Indeed, the Deputy Chief Justice has been recently been appointed to conduct such an inquiry. If the courts were subservient to the executive, as is the case in regrettably too many nations, those prospects would be non-existent.

At the international level many lawyers and politicians question whether there is a rule of law. There is no international legislature and no international executive. Yet, for some decades there has been a growing international judiciary. That is hardly surprising in the face of the plethora of international laws that have been negotiated during recent decades. According to the United Nations Treaty Section there are 560 multilateral treaties registered with it. A substantial number of them provide for judicial resolution of disputes. Some, like the Genocide Convention, refer disputes to the International Court of Justice in The Hague. Others provide for their own dispute resolution courts - the United Nations Convention on the Law of the Sea establishes the Law of the Sea Tribunal that sits in Hamburg, Germany. Then there are regional courts, including those in West Africa, Central Africa, the Americas, and Europe. There is also the dispute resolution systems of the World Trade Organisation, with its highest judicial body being the Appellate Body of the WTO that sits in Geneva.

No country, large or small, wealthy or poor, north or south, can succeed or cater to the needs of its people, without respect for the international rule of law. The most obvious illustrations are too frequently ignored. Without the international convention that governs civil aviation, national airlines would not be free to choose the most direct routes that require overflying the air space of other sovereign states. Without the international convention that controls posts and telegraphs, there would be no confidence that mail sent from, say the United States, would be delivered to an address in Iran and vice versa.

The reference to these obvious cases demonstrates that nations frequently adhere to international obligations for selfish reasons based on reciprocity. Our mutual respect for the laws will ensure their implementation. There is no rational reason to suggest the contrary. A cogent illustration of this reliance on reciprocity is provided by the dispute resolution systems of the World Trade Organisation (WTO). As mentioned above, the Appellate Body of the WTO is the final court of appeal with respect to alleged violations of rules of the WTO. Those rules have been adopted and are adhered to by States that have decided to join the system. The most important advantage of doing so is that nations will more likely comply with obligations they have voluntarily assumed. It is as much in the interests of the United States that China should adhere to trade obligations it has assumed in relation to the United States as it is in China’s interests that the United States should act in the same way. This is what reciprocity is all about. It is no coincidence and should come as no surprise that the users of this WTO dispute resolution system are those nations that are the leading trading nations. The largest user of the Appellate Body, both as claimant and defendant, is the United States. It is followed by the European Union. In recent years China has increasingly joined in using the system. It might be noted that the United States has succeeded before the Appellate Body, as both claimant and defendant, in more cases than any other member of the WTO.

It is thus irrational that the Trump Administration is doing its utmost to strangle the Appellate Body of the WTO. Since the election of President Trump, the United States, using its veto power, has refused to allow judicial vacancies to be filled. There are only seven judicial posts on the Appellate Body. Three judges are required to hear each appeal. Three of the judges have recently retired. One of the four remaining judges will leave the Court later this year. Presently, there are only four judges on the Body (one is the United States’ appointee and the other is Chinese). The aim of the Trump Administration is undoubtedly to force the WTO to accept changes to its rules that have been demanded by the Administration. The policy is also driven by the belief that the United States benefits from bilateral trade agreements rather than from multilateral agreements. This same approach has resulted in the United States withdrawal from the Trans-Pacific Partnership (TPP) and its demand that the North American Free Trade Agreement (NAFTA) should be renegotiated. The remaining eleven member States of the TPP have now agreed to proceed with the Pact and sign it without the participation of the United States.

A similar populist drive resulted in the United Kingdom deciding to withdraw from the European Union. It is becoming more apparent by the week that the United Kingdom will have many reasons to regret that decision and not the least the diminishing leadership role that London has traditionally played as one of the international community's most important financial centers. There can be little doubt that the United States will have reason in the coming years to similarly regret having unilaterally withdrawn from its leadership role in respecting and supporting international laws by attempting to renegotiate existing obligations for the selfish reasons of one state. 

We see then, that the Trump Administration has gone to substantial lengths to undermine democratic principles and especially the rule of law at both the domestic and the international level. The cost of these steps will be significant. It will take many years to restore the United States to its role as the leader of the democratic nations of the world. This is especially regrettable in light of the growing number of democracies that are also endangering their systems of freedom and democracy. In this regard, I would refer to Hungary, Poland, the Philippines and Bolivia, to mention only four. The United States is disabling itself from influencing such nations to reverse course.

The United States will have cause in coming years to regret having voluntarily  forfeited this role. Russia and China are already rushing to replace the role of the United States, especially in Africa and Asia. This will make for a more dangerous world for all people, including those of the United States. This is no way to make “America Great Again”.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2018 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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