Trump vs. International Law: Trump is Not the Only Challenge to International Cooperation

[Jenny E. Goldschmidt is an Emeritus Professor in Human Rights Law at Utrecht University and a Member of the International Commission of Jurists.]

The Dutch newspapers mentioned the cynical laughter that emerged last week in the United Nations’ General Assembly when Donald Trump was speaking about all the achievements of the United States, achieved of course due to his administration. It seems symbolic: Trump’s disguise of the international community, which he pretends not to need. Even more: he seems to see international cooperation as a burden to deal effectively with his own enemies such as Iran.

Harold Hongju Koh’s book is thus a most welcome contribution to the debate on the implications of this disdain of a world leader for international law. More than a populist world leader is needed to end the observance of international law in his country. In particular strong national institutions are surprisingly resistant to that. This may sound as a reassurance, but there is more.

Koh refers to Kant’s global governance philosophy as based on a community of democracies, of states based on a strong idea of the rule of law, democracy and human rights, engaging in mutual discourse (p. 143). And he continues that it is exactly this well balanced system that is under pressure now, mentioning the ‘Brexit-led attack on the European Union’ (p. 144). I fully agree with Koh that Trump is a symptom of a changing climate which embodies a serious threat to our free societies.

The first victims in this development are human rights. Because human rights need to be rooted both in strong national norms and structures and in international conventions and supervisory structures. When both the national and the international normative and monitoring systems are under pressure, when democracies fail to ensure the rule of law and the independence of the judiciary (as can be seen in Hungary and Poland and other Europeans countries), when members of parliament react to unwelcome judgements of regional human rights courts by asking the question whether the relevant conventions cannot be terminated, there is reason for serious fears. And perhaps more frightening is that the civil response is not only critical but very often supportive to these trends.

The populist politicians are elected by a substantive part of the electorate, which implies that the extremist populist views are becoming part of the more sophisticated political debate and are seen as a serious aspect to be taken into account by others as well, albeit not so openly. Legitimised by democratic elections these views are more and more defended as the will of the majority that has to be the norm in a democratic society. It is easily forgotten that democracy is more than a majority vote but also includes respect for human rights and protection of minorities.

It seems that the old institutions and concepts do not work anymore, or at least not as they used to do. Several trends can be indicated to explain this.

At all levels we see that there is a discrepancy between the daily lives of the people and the level of decision-making. This is of course extreme when it comes to international law, but it is also true at the national level. Whereas globalisation is seen as a dominant trend, it is often forgotten that most people’s lives are still confined to relatively restricted areas (see also the opinion of the Dutch scholar in European Studies Paul Scheffer). They need a strong feeling of commitment and belonging in these areas in the same way as the international community needs strong national democracies, democracies need a strong civil society, and it is exactly this civil society that seems to be under pressure. The feelings of discomfort of those who are not directly participating in the globalisation, who feel losing ground in the world that was familiar to them are too easily conceived as ‘wrong’ by the elite. As a consequence, these people feel excluded from the public debate. They have no confidence in ‘them’ who take decisions, they do not feel represented by the traditional political and constitutional actors. They feel marginalised and excluded and are not interested anymore in the regular particular processes, where decisions are taken ‘about them without them’. They see the international order as their enemy.

When we want these growing groups back in the political process, we will need to develop other forms of participation, hopefully not as a substitute for democratic ones, but complementary and supporting democratic decision-making.

Of course it is not only exclusion of these groups which can be seen as the new minorities, that deserves attention, but also all other forms of exclusion of minority groups, or better: non-dominant groups, such as migrants, disabled, women, LGBT. Essential is the empowerment within the democratic process of all these groups and that is exactly what consists the core of human rights.

Human rights are based on the human dignity of all and intend to enable people to live in dignity. Exclusion, being the opposite of democracy, essentially means being deprived of human rights. Here above I referred to the slogan ‘nothing about us without us’ which is the motto of the disability movement and the Convention on the Rights of persons with Disabilities (CRPD) reflects this in its very principles. This Convention does not add any new rights or obligations to the human rights body, but can be seen as a concretisation of the existing international human rights conventions. Being one of the youngest Conventions it thus has an added value that goes beyond the specific group of persons with disabilities, and the norms reflected in the CPPD can be useful and inspiring for other forms of implementation of (international and national) human rights.

Exclusion of groups of persons was one of the major drives behind the creation of the international human rights body, and similarly it has to be the start of its reframing and restructuring where relevant. Paradoxically, it might be necessary to start this process at the national, or even local level, for the sake of the strengthening or even survival of the international level. International law can support this necessary development by creating empowering frameworks, providing the countervailing power against the devastating intentions of Trump.