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”.