Netherlands Yearbook Of International Law 2018: Populism And International Law 9462653305, 9789462653306

Table of contents :
Board of Editors......Page 6
T.M.C. Asser Instituut......Page 7
Contents......Page 9
Populism and International Law......Page 14
Abstract......Page 15
1.1 Introduction......Page 16
1.2 Populism and International Law......Page 17
1.3 Historical Perspective......Page 23
1.4 Papers Introduced and Summarised......Page 25
References......Page 28
Abstract......Page 30
2.1 Introduction......Page 31
2.2 Populism, Neoliberalism and Construction of Truth......Page 33
2.3 Trump and International Trade Governance......Page 37
2.4 Trump’s Neoliberal Populism......Page 46
References......Page 54
Abstract......Page 56
3.1 Introduction......Page 57
3.2 A Genealogy of Populism in the USA......Page 60
3.3 Populism and International Relations......Page 61
3.4 The Constitution, Populism, and International Law......Page 63
3.5 Trumpian Populism and International Law......Page 66
3.6 Paranoia and International Law......Page 70
3.7 Towards a Populist International Law?......Page 74
References......Page 76
Abstract......Page 79
4.1 Introduction......Page 80
4.2 Latin American ‘Classical Populism’ at the International Level – Between Pragmatic Self-assurance and Proactive Tercermundismo......Page 85
4.2.1 Peronismo’s Third Position or Semi-peripherical Pragmatism......Page 86
4.2.2 Mexico’s Populist Foreign Policy in the 1970s: The Promotion of a New International Economic Order (NIEO)......Page 90
4.3 The ‘New Latin American Left’: Attempts at Decolonising Global Law......Page 92
4.3.1 The Counter-Coalition Called ‘ALBA-TCP’......Page 93
4.3.2 Evo Morales and the Emergence of a Global Law of Nature......Page 95
4.4 Conclusion......Page 100
References......Page 102
Abstract......Page 106
5.1 Introduction......Page 107
5.2 Internationalists versus Populists: A View from Above......Page 110
5.3 International Lawyers as the Elites: A View from Below......Page 114
5.4 International Legal Organisations: A Structural View......Page 115
5.5 Unsettling Populist versus Internationalist Binaries......Page 119
5.6 Populism as a Tactic for a Multilateralism of Solidarity......Page 123
5.7 Conclusion......Page 127
References......Page 128
Abstract......Page 131
6.1 Introduction......Page 132
6.2 People in the United Nations Charter and International Criminal Law......Page 136
6.3 Female Circumcision and the Politics of Patriarchy......Page 138
6.4 The Faustian Pact, Political Violence and Law......Page 142
References......Page 148
Abstract......Page 151
7.1 Introduction......Page 152
7.2 The Concept of Populism and the Populist View(s) on Human Rights......Page 153
7.2.1 Overview of the Studies of Populism......Page 154
7.2.2 Characteristics of Populism......Page 156
7.2.3 Populism in Today’s World......Page 159
7.2.4 Populist View(s) on Human Rights......Page 161
7.3 Arguments Used by Populists to Criticize Human Rights......Page 163
7.3.1 Security Argument......Page 164
7.3.2 Legitimacy Argument......Page 169
7.3.3 Democracy Argument......Page 174
7.4 Concluding Remarks......Page 179
References......Page 180
Abstract......Page 183
8.1 Introduction......Page 184
8.2 Protestantism in Latin America......Page 186
8.3 ‘Evangelicals’ Enter the Picture......Page 187
8.4 Evangelicals and the ‘Private’ Mindset: Chile (1970s) and Colombia (1990s)......Page 192
8.4.1 Chile, 1970s: Evangelicals and Faith as a Private Matter......Page 193
8.4.2 Colombia, 1990s: Evangelical Rights and Neo-constitutionalism......Page 197
8.5 The Public Mindset: LGBTI Rights and ‘Gender Ideology’......Page 200
8.6 Conclusion: Reclaiming the Keys to the Kingdom (of the World)......Page 208
References......Page 211
Abstract......Page 216
9.1 Introduction......Page 217
9.2 The World Bank’s Engagement with Law......Page 219
9.3 Populist Economic Nationalism......Page 222
9.4 Interactions of Populist Economic Nationalism with the Domestic and International Legal Institutions......Page 224
References......Page 226
Dutch Practice......Page 228
10 Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v the Netherlands......Page 229
10.1 Introduction......Page 230
10.2.1 Direct Applicability of the ECHR......Page 232
10.2.3 Uptake......Page 234
10.3 Articles 2 and 8 ECHR’s Duty of Care to Protect Against Dangers of Climate Change......Page 235
10.3.1 The Strasbourg Standard for the Prevention of Future Environmental Dangers......Page 236
10.3.2 Climate Change: A Real Threat Resulting in Serious Risk......Page 238
10.3.3 Preventing Infringement ‘as Far as Possible’......Page 239
10.4.1 25% as the Unassailable Minimum......Page 240
10.4.2 Negative Emissions......Page 241
10.4.3 Dismissal of the State’s Other Objections......Page 242
10.5.1 The Courts’ Considerations......Page 244
10.5.2 Did the Court Overstep the Separation of Powers by Misinterpreting the Law?......Page 246
10.5.3 Should Courts Sometimes Refrain from Delivering Legally Correct Decisions?......Page 247
References......Page 249
Abstract......Page 251
11.1 Introduction......Page 252
11.2 Developments: 2014–2018......Page 253
11.3 The Legal Case Against Russia......Page 257
11.3.1 Involvement in Shooting Down MH17......Page 258
11.3.2 Duty to Conduct Effective Investigations......Page 264
11.3.3 Bringing a Case Against Russia......Page 266
11.4 The Legal Case Against Ukraine......Page 271
11.5 The Dutch Pursuit for Justice......Page 274
References......Page 276
Abstract......Page 277
12.1 Introduction......Page 278
12.2 Background......Page 280
12.3 Content of the New Law......Page 281
12.4 A Referendum and Subsequent Court Action......Page 282
12.5.1 Lawful Processing......Page 284
12.5.3 Data Quality......Page 285
12.5.3.2 Data Retention......Page 286
12.5.4 Fair Data Processing......Page 288
References......Page 289
INTERNATIONAL......Page 290
NATIONAL......Page 293

Citation preview

Netherlands Yearbook of International Law 2018 Populism and International Law

Netherlands Yearbook of International Law Volume 49

More information about this series at http://www.springer.com/series/8913

Janne E. Nijman Wouter G. Werner •

Volume Editors

Netherlands Yearbook of International Law 2018 Populism and International Law

123

Volume Editors Janne E. Nijman Faculty of Law University of Amsterdam Amsterdam, The Netherlands

Wouter G. Werner Faculty of Law Vrije Universiteit Amsterdam Amsterdam, The Netherlands

ISSN 0167-6768 ISSN 1574-0951 (electronic) Netherlands Yearbook of International Law ISBN 978-94-6265-330-6 ISBN 978-94-6265-331-3 (eBook) https://doi.org/10.1007/978-94-6265-331-3 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2019 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Board of Editors Ramses A. Wessel (General Editor) University of Twente

Wouter G. Werner (General Editor) Vrije Universiteit Amsterdam

Fabian Amtenbrink Erasmus University Rotterdam

Maarten den Heijer University of Amsterdam

Martin Kuijer Ministry of Justice and Security Vrije Universiteit Amsterdam

Janne E. Nijman University of Amsterdam

Denise Prévost Maastricht University Otto Spijkers Utrecht University

Nikolas M. Rajkovic Tilburg University Harmen van der Wilt University of Amsterdam

Managing Editor Bérénice Boutin T.M.C. Asser Institute The Hague Editorial Assistant Kike Ajibade

Aims and Scope The Netherlands Yearbook of International Law (NYIL) was first published in 1970. As a double-blind peer-reviewed publication, the NYIL offers a forum for the publication of scholarly articles of a conceptual nature in a varying thematic area of public international law. In addition, each Yearbook includes a section Dutch Practice in International Law. The NYIL is published under the auspices of the T.M.C. Asser Instituut.

T.M.C. Asser Instituut Located in the ‘international zone’ of The Hague—the City of Justice, Peace and Security, the T.M.C. Asser Instituut is a leading, inter-university research institute operating in the broad field of international law. Founded in 1965, the Institute’s international community of scholars is engaged in research, postgraduate training and dissemination of knowledge in furtherance of the purposes and principles of international law. This inter-university institute cooperates closely with and supports the Dutch universities’ activities in the relevant disciplines. The academic fields covered by the Institute are Private International Law, Public International Law, Law of the European Union, International Commercial Arbitration, International Humanitarian Law, International Criminal Law and International Sports Law. The Institute enjoys an excellent reputation at both a national and an international level for its development, organisation and hosting of conferences and academic meetings, demand-driven postgraduate programmes and training. Its ancillary Websites and data collections all contribute to a coherent and integral strategy in the area of knowledge transfer. The Institute has its own publishing house, T.M.C. Asser Press. T.M.C. Asser Press not only serves the publishing needs of the T.M.C. Asser Instituut, but also those of academics and practitioners worldwide in the fields of International and European Law. T.M.C. Asser Instituut Institute for Private and Public International Law International Commercial Arbitration and European Law Institute Address: R.J. Schimmelpennincklaan 20-22 2517 JN The Hague The Netherlands

Postal Address: P.O. Box 30461 2500 GL The Hague The Netherlands Tel.: +3170 342 0300 Fax: +3170 342 0359 Email: [email protected] Internet: https://www.asser.nl

Contents

Part I 1

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Populism and International Law

Populism and International Law: What Backlash and Which Rubicon? . . . . . . . . . . . . . . . . . . . . . . Janne E. Nijman and Wouter G. Werner 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Populism and International Law . . . . . . . . . . . 1.3 Historical Perspective . . . . . . . . . . . . . . . . . . 1.4 Papers Introduced and Summarised . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trump, International Trade and Populism . . . . . Lukasz Gruszczynski and Jessica Lawrence 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Populism, Neoliberalism and Construction of 2.3 Trump and International Trade Governance . 2.4 Trump’s Neoliberal Populism . . . . . . . . . . . 2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Populist Paranoia and International Law . . . . . . . . . . . Aaron Fichtelberg 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 A Genealogy of Populism in the USA . . . . . . . . . . 3.3 Populism and International Relations . . . . . . . . . . . 3.4 The Constitution, Populism, and International Law . 3.5 Trumpian Populism and International Law . . . . . . . 3.6 Paranoia and International Law . . . . . . . . . . . . . . . 3.7 Towards a Populist International Law? . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Is There a ‘Populist’ International Law (in Latin America)? . . Alejandro Rodiles 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Latin American ‘Classical Populism’ at the International Level – Between Pragmatic Self-assurance and Proactive Tercermundismo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Peronismo’s Third Position or Semi-peripherical Pragmatism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Mexico’s Populist Foreign Policy in the 1970s: The Promotion of a New International Economic Order (NIEO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 The ‘New Latin American Left’: Attempts at Decolonising Global Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 The Counter-Coalition Called ‘ALBA-TCP’ . . . . . . 4.3.2 Evo Morales and the Emergence of a Global Law of Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Populism, International Law and the End of Keep Calm and Carry on Lawyering . . . . . . . . . . . . . . . . . . . . . . . . . . . . Christine Schwöbel-Patel 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Internationalists versus Populists: A View from Above . . 5.3 International Lawyers as the Elites: A View from Below 5.4 International Legal Organisations: A Structural View . . . 5.5 Unsettling Populist versus Internationalist Binaries . . . . . 5.6 Populism as a Tactic for a Multilateralism of Solidarity . 5.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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People, Politics and Populismin International Criminal Law: The Mungiki as Kenyan Ethnos and Kenyan Demos . . . . . . . Edwin Bikundo 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 People in the United Nations Charter and International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Female Circumcision and the Politics of Patriarchy . . . . . . 6.4 The Faustian Pact, Political Violence and Law . . . . . . . . . 6.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Populism and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . Veronika Bílková 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 The Concept of Populism and the Populist View(s) on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 Overview of the Studies of Populism . . . . . . . . . 7.2.2 Characteristics of Populism . . . . . . . . . . . . . . . . 7.2.3 Populism in Today’s World . . . . . . . . . . . . . . . 7.2.4 Populist View(s) on Human Rights . . . . . . . . . . 7.3 Arguments Used by Populists to Criticize Human Rights 7.3.1 Security Argument . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Legitimacy Argument . . . . . . . . . . . . . . . . . . . . 7.3.3 Democracy Argument . . . . . . . . . . . . . . . . . . . . 7.4 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Reclaiming the Keys to the Kingdom (of the World): Evangelicals and Human Rights in Latin America . . . . . . . . . . . . . . . . . . . . . Rene Urueña 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Protestantism in Latin America . . . . . . . . . . . . . . . . . . . . . . 8.3 ‘Evangelicals’ Enter the Picture . . . . . . . . . . . . . . . . . . . . . . 8.4 Evangelicals and the ‘Private’ Mindset: Chile (1970s) and Colombia (1990s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.1 Chile, 1970s: Evangelicals and Faith as a Private Matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.2 Colombia, 1990s: Evangelical Rights and Neoconstitutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 The Public Mindset: LGBTI Rights and ‘Gender Ideology’ . . 8.6 Conclusion: Reclaiming the Keys to the Kingdom (of the World) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Addressing Economic Populism Through Law – A Case Study of the World Development Report 2017 . . . . . . . . Lys Kulamadayil 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 The World Bank’s Engagement with Law . . . . . . . . 9.3 Populist Economic Nationalism . . . . . . . . . . . . . . . . 9.4 Interactions of Populist Economic Nationalism with the Domestic and International Legal Institutions . . . 9.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Part II

Contents

Dutch Practice

10 Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v the Netherlands . . . . . . . . . . . Laura Burgers and Tim Staal 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 The Admissibility of Urgenda’s Claims . . . . . . . . . . . . . . . 10.2.1 Direct Applicability of the ECHR . . . . . . . . . . . . . 10.2.2 Future Generations and People Abroad . . . . . . . . . 10.2.3 Uptake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 Articles 2 and 8 ECHR’s Duty of Care to Protect Against Dangers of Climate Change . . . . . . . . . . . . . . . . . . . . . . . . 10.3.1 The Strasbourg Standard for the Prevention of Future Environmental Dangers . . . . . . . . . . . . . 10.3.2 Climate Change: A Real Threat Resulting in Serious Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.3 Preventing Infringement ‘as Far as Possible’ . . . . . 10.4 Law, Facts and Civil Procedure . . . . . . . . . . . . . . . . . . . . . 10.4.1 25% as the Unassailable Minimum . . . . . . . . . . . . 10.4.2 Negative Emissions . . . . . . . . . . . . . . . . . . . . . . . 10.4.3 Dismissal of the State’s Other Objections . . . . . . . 10.5 Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5.1 The Courts’ Considerations . . . . . . . . . . . . . . . . . . 10.5.2 Did the Court Overstep the Separation of Powers by Misinterpreting the Law? . . . . . . . . . . . . . . . . . 10.5.3 Should Courts Sometimes Refrain from Delivering Legally Correct Decisions? . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Pursuing Justice for MH17: The Role of the Netherlands . Marieke de Hoon 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Developments: 2014–2018 . . . . . . . . . . . . . . . . . . . . 11.3 The Legal Case Against Russia . . . . . . . . . . . . . . . . . 11.3.1 Involvement in Shooting Down MH17 . . . . . 11.3.2 Duty to Conduct Effective Investigations . . . . 11.3.3 Bringing a Case Against Russia . . . . . . . . . . 11.4 The Legal Case Against Ukraine . . . . . . . . . . . . . . . . 11.5 The Dutch Pursuit for Justice . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contents

12 What a Drag(net): Dutch Surveillance Laws in the Light of European Union Data Protection Law . . . . . . . . . . . . . Mistale Taylor 12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3 Content of the New Law . . . . . . . . . . . . . . . . . . . . . . 12.4 A Referendum and Subsequent Court Action . . . . . . . 12.5 The ISS Act 2017 and EU Data Protection Principles . 12.5.1 Lawful Processing . . . . . . . . . . . . . . . . . . . . 12.5.2 Purpose Specification and Limitation . . . . . . . 12.5.3 Data Quality . . . . . . . . . . . . . . . . . . . . . . . . 12.5.4 Fair Data Processing . . . . . . . . . . . . . . . . . . . 12.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291

Part I

Populism and International Law

Chapter 1

Populism and International Law: What Backlash and Which Rubicon? Janne E. Nijman and Wouter G. Werner

Contents 1.1 Introduction........................................................................................................................ 1.2 Populism and International Law ....................................................................................... 1.3 Historical Perspective ........................................................................................................ 1.4 Papers Introduced and Summarised .................................................................................. References ..................................................................................................................................

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Abstract This chapter introduces the theme of the volume, populism and international law, as well as its chapters. It does so by first discussing the Dutch political reality with its increasingly populist tendencies that was on the minds of the Editors when deciding to devote a volume to this theme. Subsequently, it explores briefly the many faces of populism and the different manifestations of the relationship between populism and international law. Rather than taking the so-called populist backlash against globalisation, international law and governance, at face value, this volume aims to dig deeper beyond mere ‘backlash’ rhetoric and wonders ‘what backlash are we talking about, really?’ While populism is contextual and contingent on the society in which it rises and its relationship with international law and institutions thus has differed likewise, this chapter’s historical reflections assist in our examination of what we find so dangerous about populism and problematic in Janne Nijman is Professor of History and Theory of International Law at the Faculty of Law of the University of Amsterdam, and member of the board and the academic director of the T.M.C. Asser Instituut in The Hague. Wouter Werner is Professor of International Law at the Centre for the Politics of Transnational Law of the Vrije Universiteit Amsterdam. J. E. Nijman (&) Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] W. G. Werner Faculty of Law, Vrije Universiteit Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_1

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its relationship with international law. It concludes by introducing the chapters individually and to some degree in relation to each other. Keywords Populism

1.1


International law
Backlash
‘Othering’
Demagoguery

Introduction

On 23 October 2001, Pim Fortuyn accepted the nomination as the leader of the newly formed political movement ‘Liveable Netherlands’ (Leefbaar Nederland). In a very short period of time, Fortuyn had become a prominent figure in Dutch politics with idiosyncratic policy views, a provocative political style and a self-proclaimed vocation to protect the country from the dark sides of Islam. Most of all, however, Fortuyn presented himself as a leader, a figure that could take an ‘orphaned society’1 by the hand and lead it out of the desert of neo-liberalism and multiculturalism. Fortuyn accepted the nomination in a style befitting his idea of politics: he looked into the crowd, saluted and said ‘at your service’—words that would obtain iconical status in Dutch politics. Within four months Fortuyn’s style and message proved too radical for the new movement, and he was forced to step down. He soon started his own movement, named after himself, and grew exponentially in the polls. When he was killed in May 2002, his movement was expected to become the biggest or second biggest faction in parliament. A few years later (March 2014), Geert Wilders celebrates the victory of his ‘Freedom Party’ in the municipal elections in The Hague. At the end of his speech he directly turns to the audience and asks whether they would like more or less European Union. The crowd shouts back: ‘less, less, less!’ Wilders then asks whether they would like more or less social democrats, and solicits the same response. Finally, he asks whether they would like to see more or less Moroccans, with the crowd once more shouting back ‘less, less, less!’ Wilders looks amusedly at his supporters, saying ‘then we will arrange that’. His celebratory speech would form the basis for a criminal conviction for inciting discrimination by the Court in The Hague. The Court’s decision is currently under appeal. In the meantime, Wilders has referred to the case against him as another indication that the so-called liberal-progressive elite seeks to curtail the freedom of speech of those speaking out on behalf of the people. Another five years later, Thierry Baudet celebrates the victory of his party in the provincial elections (which directly determine the composition of the Senate). Baudet’s speech follows the pattern set by Fortuyn and Wilders. He praises the supremacy of Western culture, for which he used the controversial term ‘boreal’ (thus echoing language popular in the alt-right movement). Yet, he laments and warns that this allegedly superior culture is undermined by elites at universities, the

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Fortuyn 2002.

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media and government. He presents himself and his party/movement as rescuers of the betrayed people and as protectors of the endangered culture. The three episodes are illustrative of many aspects of populism in the Netherlands today. Although both Fortuyn and Wilders are best known for their offensive Islam critique, their main target is broader and less well defined. They claim to stand up for the people who are betrayed by the elite, in need of a leader who is able to take action on their behalf. ‘At your service’, ‘We will arrange that’ are not just rhetorical phrases uttered at high political moments; they represent what both populist movements stand for. Baudet taps into this tradition, presenting himself as the one who protects ‘Western culture’ against internal and external enemies. Recently, Yvonne Zonderop has argued how in The Netherlands the emptiness that came to define public space with the end of the so-called ‘verzuiling’2 of Dutch society provided the space for populism to grow in.3 Over the last 15 years, Dutch populist movements have been mostly of a nationalist bent. Both Fortuyn and Wilders construct and subsequently operate in a triangle of a corrupted and self-serving elite, the betrayed ‘ordinary’ people and a leader standing up for them. Who counts as the elite is flexible and changes over time: it can be a coalition of liberals and social democrats, the European Union, the European Court of Human Rights, TTIP, the World Bank, refugee lawyers, judges, arbiters, bankers, the UN Committee on the Elimination of Racial Discrimination, the negotiators of the Marrakech Pact, climate scientists and climate activists, the media or anyone else. In a similar fashion, the particular form of betrayal of and threat to the people varies over time: often it is Islam, but it can also be multiculturalism, austerity, taxation, economic inequality, lack of proper housing, animal suffering, restrictions on smoking, or anything else. Who counts as the people is equally undetermined. They are defined in different terms depending on the topic and the enemy that has to be chastised: it could be those sharing Judeo-Christian values, but also a nation, or the ordinary people, the hard-working people, the forgotten people, or any other group. The only one who is clearly identified is the leader him- or herself: (s)he is the one making the speech act through which elite, betrayed people and leader are presented to an audience.

1.2

Populism and International Law

The three episodes described above also illustrate the starting point of this special issue on populism. Although those living in Europe tend to associate populism with right-wing politics, this link is historically and geographically contingent. Populism has been connected to a wide variety of political programs, and even within one and the same populist movement one can trace differences in policy preferences over

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Lijphart 1968. See Zonderop 2018, at 49.

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time. Rather than defining populism in terms of what it seeks to achieve substantively, we treat populism as a particular way of ‘“doing politics” whose content is constructed in relation to the logic of differentiation and fracture’.4 A way of ‘doing politics’ that thrives on anger, fear and anxiety present in modern society; it engages in demagogy to reach people’s emotions and in the practice of ‘othering’ rather than that it aims to serve the health and cohesion of the civitas or polity as a whole. The advantage of this approach of populism is that it treats populism as a ‘thin-centered ideology’5 that can be—and indeed, has been—linked to different political agendas. It also enables us to see populist tendencies within traditional political parties in The Netherlands and beyond. Populism as a style is copied by mainstream politicians; think for example of VVD political leader and Prime Minister Mark Rutte who accused the ‘white wine sipping elite in Amsterdam’ of not being fair to Donald Trump,6 (thus creating a self-proclaimed gap between himself—the Prime Minister —and the ‘elite’). Or think of the same Prime Minister’s ‘pleur op’ (‘piss off’) address to a group of Turkish-Dutch youth who intimidated other people when they demonstrated in favor of the Turkish government.7 It is also practiced, in the name of being ‘good populism’, by other parties, including the Christian Democrats.8 As the different chapters in this volume attest, populism comes in very different forms: leftist and rightwing, religious or agnostic, culturally conservative or libertarian, international law friendly and antagonistic to international law, racist or anti-racist, etc. The many faces of populism also informed the choice of the editorial board for this special issue. The topic was selected in the course of 2017 when populist politicians and programmes of different kinds were on the rise. The election of Donald Trump to the White House, the British vote for leaving the EU, the rise of illiberal democracy in Hungary and Poland, the popularity of an authoritarian leader —President Rodrigo Duterte in the Philippines and Jair Bolsonaro in Brazil—, are all described as populist phenomena. In South Africa, the Economic Freedom Fighters (EFF) party are preparing for the presidential elections with a Leftist populist style. In India, President Modi mobilizes Hindu nationalism and China has declared President Xi Jinping to be their ‘core leader’. As we write this introduction in late 2018, Matteo Salvini has been elected in Italy, Alternative für Deutschland has 90 seats in the Bundestag, Geert Wilders and Thierry Baudet together have 22 seats out of 150 in the Dutch Parliament, and the ‘gilets jaunes’ are on the streets of France. In short, in 2018 Europe one out of four citizens votes for a populist party 4

Gruszczynski and Lawrence, Chap. 2 in this volume. Mudde 2004, at 544. 6 VPRO, Buitenhof 13 januari: Mark Rutte, 13 January 2019, https://www.vpro.nl/buitenhof/kijk/ afleveringen/2019/Buitenhof-13-januari-2019.html, accessed 23 April 2019. 7 Mark Rutte addressed a group of Turkish-Dutch youth upon their obstruction of a Dutch national broadcasting camera crew reporting on them being out in the streets at the night of the military coup in Turkey. VPRO, Zomergasten, 4 September 2016. 8 BBC, Dutch election: Wilder’s defeat celebrated by PM Rutte, 16 March 2017, https://www. bbc.com/news/world-europe-39287689, accessed 24 April 2019. 5

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according to The Guardian.9 As much of the rhetoric used by these politicians is anti-immigration, anti-global trade, anti-multilateralism, and climate change denialist, a volume that examines the relationship between current populism and international law seemed called for. A surge of writings—ranging from articles and op-eds in international newspapers10 and magazines11 to academic papers12—attempts to understand the populist backlash today. The public debate has come to focus on the question to what extent the ‘backlash’ present in populist politicians’ speech and programmes is rooted in socio-economic concerns—low wages and job insecurity—or in cultural or societal concerns—related to immigration, being looked down on by self-serving elites, or supremacy and lingering racism. Martti Koskenniemi recently argued that the current ‘backlash’ is reactionary, against the so-called 1960s liberal revolution (which continued after the 1960s, for example through the rise of human rights) in politics and international law.13 Similarly, Matthew Goodwin and Roger Eatwell, authors of National Populism: The Revolt Against Liberal Democracy (2018), argue that current national populism thrives on (i) distrust of politicians, the political system and representativeness; (ii) fear for the loss of a (cultural) way of life due to immigration and a change of societal (ethnic) composition; (iii) anxiety about income and job security; and (iv) an unsettling sense of being looked down on and left behind as a social or ethnic group compared to others in society.14 Obviously, these concerns are hard to disentangle. The role of (social) media, echo chambers, and fake news should moreover also not be ignored when one tries to understand the surge of populism. It is in our view significant that the rise of populism in the West coincides with the fall of social democracy—whereas in other parts of the world populism may be connected to a revival of leftist, redistributive

9 Their research shows that populists (far-left and far-right together) have tripled their votes in the past 20 years. P Lewis et al., Revealed: one in four Europeans vote populist’, The Guardian, 20 November 2018, https://www.theguardian.com/world/ng-interactive/2018/nov/20/revealed-one-infour-europeans-vote-populist, accessed 9 May 2019. 10 The Guardian has published a whole series on ‘The New Populism’, and in The Netherlands both leading newspapers NRC Handelsblad and the Volkskrant (repository ‘Populisme in Europa’) have been very active on the topic. 11 See, for example Time Magazine’s 2016 Person of the Year was Donald Trump and with him ‘The Populists’ see S Shuster, The Populists, Time, http://time.com/time-person-of-the-yearpopulism/, accessed 9 May 2019. 12 See for example Alston 2017; Posner 2017; Madsen et al. 2018; Ecker-Ehrhardt 2014. 13 Martti Koskenniemi, ‘International Law and the Far Right’, Fourth Annual T.M.C. Asser Lecture, 29 November 2018, https://www.youtube.com/watch?v=zHRiBH2g15I, accessed 9 May 2019, (written version forthcoming). 14 Koskenniemi is more ambivalent about the latter aspect. While he emphasises the backlash as being related to white male supremacy thinking, he argued that those in the populist movements do not want to be taken up into the dominant culture of cosmopolitanism, human rights, and liberal globalisation.

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programs.15 In the aftermath of the 2008 financial crisis, which was confronted by spending a lot of public money to save private actors ‘too big to fail’ and therewith the financial-economic system. While coming from different backgrounds and angles, both Chantal Mouffe and Naomi Klein point to 2008 as crucial for the rise of ‘the populist moment’.16 They even call for a democratically constructed Leftist Populism to fight for equality, democracy, and social justice against Far Right and Trumpist populism in Europe and the US. Opening her pamphlet For A Left Populism (2018), Mouffe states ‘[w]e are witnessing a crisis of the neoliberal hegemonic formation and this crisis opens the possibility for the construction of a more democratic order.’17 Naomi Klein understands Trump as the ultimate hyperversion of the neoliberalist politics that dominated the past decades around the globe.18 From both we take a sense of urgency about the need to reconstruct the ‘people’ or demos unravelled by three decades of neoliberalist policies. Whether this should be done through a populist style, with alleged cleavages between ‘the people’ and ‘the elite’, is another question of course. Frankly, we find populism as a style profoundly disconcerting, as it thrives on divisions and plays with ‘othering’ in a dangerous way, putting pressure on the health of a democratic political society. However, rather than analyse the populist movements themselves and what explains their growth, this volume deals with the current relationship between international law and populism in its different manifestations. It means to dig deeper beyond mere ‘backlash’ rhetoric and wonders ‘what backlash are we talking about, really?’ This special issue is also informed by another concern voiced in the editorial board. All too often, populism is defined in negative terms only, as a threat to a, in principle, benevolent international law. In international and European law scholarship, today’s populism is generally discussed as a ‘backlash’ against—most notably—globalisation.19 Globalisation backlash is then understood to thrive on critique of economic globalisation or of cultural globalisation, or a mixture of the two. Either way, both critiques have contributed to the recent politicization and contestation of international law and global governance institutions (TTIP and TPP, WTO, EU, G20 to name just a few). Populist politicians have indeed turned against multilateralism beyond economic globalisation, for example against the multilateral Paris Agreement on Climate Change or the Global Compact on Migration. In international law scholarship, national populism is also discussed in relation to the backlash against international courts and tribunals and against international human rights. Resistance across the globe against international courts has been related to a 15 See also M Goodwin, ‘National populism is unstoppable – and the left still doesn’t understand it’, The Guardian, 8 November 2018, https://www.theguardian.com/commentisfree/2018/nov/08/ national-populism-immigration-financial-crisis-globalisation, accessed 9 May 2019; Martti Koskenniemi ‘International Law and the Far Right’, Fourth Annual T.M.C. Asser Lecture, 29 November 2018. 16 Mouffe 2018, at 1. 17 Ibid. 18 Klein 2017. 19 See Alston 2017; Posner 2017; Madsen et al. 2018; Ecker-Ehrhardt 2014.

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widespread and ‘pronounced scepticism against universalism’, against the multilateral mind-set that grounds international law and international organisations, but as such it needs further unpacking.20 Alston insightfully observes how ‘[t]he main characteristic of the new populist-authoritarian era is disdain for social conventions, a currency on which respect for human rights norms has long been heavily dependent. The devaluation of that currency opens up immense horizons for the enemies of human rights.’21 Of course, it is important to critically scrutinize the arguments used by populist movements and to see whether their critique of multilateralism and international human rights protection makes sense. The chapter by Veronika Bílková in this volume is a good example of such debunking of populist critiques. Her chapter takes up three critiques of human rights often used by populist movements and shows how their concerns are unfounded. However, while it is important to critique populist narratives on international law, this should not be the sole angle of the populism debate in international law. It is also important to examine international law’s possible role in creating the conditions under which populist movements can thrive. This is done in a number of chapters, most explicitly in the chapter by Christine Schwöbel-Patel. Schwöbel-Patel analyses how international institutions have been implicated in creating socio-economic conditions that have become breeding grounds for populist critiques of the elite. Schwöbel-Patel’s analysis hints at the ways in which international institutions may have contributed to Branko Milanović’s so-called ‘elephant graph’. This graph has become the placeholder in international legal scholarship for the explanation of populism through economic globalisation backlash.22 It arguably shows that populist voters of the middle class in developed countries may indeed be the losers of economic globalisation. Taking a global approach, Milanović studies the effects of globalisation on real income (distribution) across the globe by means of a large data set—‘almost 600 household surveys from approximately 120 countries in the world covering more than 90% of the world population and 95% of global GDP’.23 He concludes that ‘rising national inequalities, despite being accompanied by lower global poverty and inequality, may turn out to be difficult to manage politically.’ Populist movements then are understood to surf the sense of ‘relative loss’ of income position, which is dominant in many societies around the globe. This sense of loss is then read as being behind the turn against globalisation and against multilateral order generally. Critically examining the role of international law in relation to the rise of populism is, maybe strangely enough, not that far from Eric Posner’s argument in ‘Liberal

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See for example Madsen et al. 2018. Alston 2017. 22 B Milanović, The greatest reshuffle of individual incomes since the Industrial Revolution, VOX, 1 July 2016, http://voxeu.org/article/greatest-reshuffle-individual-incomes-industrialrevolution, accessed 23 April 2019. 23 Ibid. 21

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Internationalism and the Populist Backlash’. Posner argues that ‘the international law community has seriously misunderstood the evolution of international law, with the result that it is unprepared to comment on the populist backlash. Specifically, [he] argue[s] that a common view held by these elites—that further international legal integration of the world is inevitable and beneficial, and that it enjoys the support of most ordinary people—has been refuted by events. Moreover, the populist reaction to international law may be traced to two essential features of international law—that it is technocratic and has been advanced by the establishment.’24 However, it would be too simplistic to assume that populism is necessarily against international law. As is shown most extensively in the chapter by Alejandro Rodiles, populist movements in Latin America have often actively promoted international treaties and different forms of transnational cooperation. And as most other chapters indicate, populist movements frequently invoke international law, for example where they appeal to the need to protect sovereignty, self-determination or even individual human rights. In this context, it is also interesting to examine the rhetoric used by Donald Trump more closely, as is done in the chapter by Jessica Lawrence and Lukasz Gruszczynski, as well as the chapter by Aaron Fichtelberg. Both chapters show that Trump’s ‘paranoid style’ (Fichtelberg) is combined with the use of arguments that fit a neo-liberal agenda very well. This echoes arguments recently made by Quinn Slobodian, author of Globalists: The End of Empire and the Birth of Neoliberalism (Harvard 2018), who pointed out on the front page of the New York Times: ‘Populists are also globalists’.25 While President Trump canvassed against ‘the ideology of globalism’ and ‘unelected, unaccountable global bureaucracies’—language that reminds us inadvertently of the critique of managerialism—in a recent speech at the United Nations, his policies are globalist in a free market fundamentalism and anarcho-capitalism kind of way. Slobodian points out this comes down to a new version of ‘alter-globalisation’. A version of globalism that, unlike the social movement that protested, for example, against the World Trade Organisation in Seattle in 1999—and global multilateral institutions more generally—to demand more attention for labour conditions, the environment and growing social inequality, is good for finance and trade but harsh on (migrating) people and the middle class. Slobodian’s point that a populist leader like Trump may rally with anti-globalism language while in fact it is a very selective anti-globalism that followers possibly misread as it clearly means to serve large corporates by contributing to an international order developed to protect free capital and trade rather than people from precarious situations.

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Posner 2017, at 2. Q Slobodian, Populists are also globalists, New York Times, 23 October 2018, print edition, at 1 and 11. 25

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Historical Perspective

Populism definitely entered US politics with the foundation of the People’s Party in 1891. Aaron Fichtenberg includes a genealogy of populism in the US in his chapter and so here we merely refer to the 1935 novel by Sinclair Lewis that captures American populism of the 1930s: ‘It can’t happen here’.26 A counter-factual novel about FDR losing—rather than winning the Presidential elections—from a populist politician, who favours Hitler and Mussolini in Europe and brings similar political practices and anti-internationalism to the USA. ‘It can’t happen here’ may be read as a warning for US citizens and politicians to prevent populist backsliding; against the background of today’s Trumpianism it is a sour read. While the term ‘populism’ is nineteenth-century,27 populism as a political style is of course at least as old as the roads to Rome (or rather older when we think of the politics of Greek Antiquity and Aristotle’s theory of rhetoric and demagoguery).28 The brothers Gracchus (c. 140–120 BCE) claimed to represent the people and canvassed as tribunes of the plebs with a populist style against the Roman aristocratic elite with a programme of land reform.29 The Senate became divided between the populares and the optimatis.30 Cicero left us observations on the populist style of tribune of the plebs, Clodius, and on how the Roman Res Publica collapsed into populist tyranny by Julius Caesar. This collapse of the political system and the (mis)rule by the Roman political elite was surely not instantaneous, yet marked ultimately by Caesar crossing the Rubicon in 49 BCE.31 With this crossing, Caesar entered Rome with his Legion, thereby committing an act of war according to Roman law. He seized power, put the rule of law aside, plunged Rome into civil war and made tyranny a fact of life. With this crossing, the Rubicon became known as ‘the point of no return’ but more than that the legendary physical, material frontier came to symbolise a profound political border. The image for a political system in regression, losing a healthy political culture, ignoring the widening gap between the people and the elite, succumbing ultimately to a strong and charismatic leader or demagogue, who relied on force to grab power under the pretext of being the true servant of the interests of ‘the people’. Long after the actual crossing, the Rubicon has become a placeholder in political thought to capture a fundamental crossing of a political society and its leadership from a healthy, rule of law based political society or Rechtsstaat to rule by law and force by an autocratic leader. Every age and every political society has its own Rubicons looming on the horizon.

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Lewis 1935. Kaltwasser et al. 2017, at 2. Urbinati 2017, at 578. Vervaet 2016, at 233; Von Ungern-Sternberg 2006, at 89–109. Vervaet 2016, at 223. Von Ungern-Sternberg 2006, at 104.

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This is not the place to provide a global history of populism, nor to give an overview of populism in international legal scholarship throughout the ages. Populism is contextual and contingent on the society in which it rises, its relationship with international law and institutions has differed likewise. Yet, today’s national populism is often compared to the developments in Europe during the 1920s and 1930s in an attempt to warn against leaving xenophobia and racism uncontested.32 History will never repeat itself, but historical knowledge does make us more conscious about our own times. At the time, the fear for young European democracies to lapse into ‘mobocracies’—the tyranny of the majority or masses—was tangible in all disciplines. Hans Kelsen immediately comes to mind, not just his dispute with Carl Schmitt over Weimar,33 but also his life as a constitutional jurist in Vienna amidst what he called in a letter to Renato Treves ‘the politically polluted atmosphere of [his] time’.34 Polluted by fear and rage, by the othering of minorities, and by the conscious construction of enemies leading to (civil) war. The 1920s and 1930s were in Vienna like in many other European cities the days of Stimmungsdemocratie and demogogic politics, of (nationalist) Kriegbegeisterung and Massenwahn. Elias Canetti wrote the socio-psychological study Masse und Macht (1960) triggered by being trapped in a crowd protesting in front of the Viennese Hall of Justice and its judiciary,35 among which constitutional court judge Hans Kelsen probably inside that same building on that same day.36 Obviously, the German and Italian democracies were in crisis and slid into fascism. This concern for democracy marked at the time the attitude of many artists and intellectuals, among which international lawyers, towards ‘the people’. There were those who—in line with Wilsonianism and a general spirit of democratisation— valued the voice of ‘the public’ as the voice of Reason. Others were inclined to understand the people as ‘The Public Phantom’, to use Walter Lippmann’s 1925 title, or as the dehumanised ‘mass’ personifying irrationality.37 Sigmund Freud published Massenpsychologie und Ich-analyse in 1921 and Albert Einstein asked him in the open letter Warum Krieg? (1932): ‘Wie ist es möglich, dass sich die Masse […] bis zur Raserei und Selbstaufopferung entflammen lässt? Die Antwort kann nur sein: Im Menschen lebt ein Bedürfnis zu hassen und zu vernichten.’38 Karl Mannheim published Mensch und Gesellschaft im Zeitalter des Umbaus (1935) 32

E.g. the 2018 Abel Herzberg Lezing by Minister Sigrid Kaag. E.g. Dyzenhaus 1997; Jacobzson and Schlink 2000. 34 Kelsen 1999, at 172. 35 Canetti 1980, at 274–282. 36 Nijman 2004, at 157. 37 Nijman 2004, at 84–243. 38 Einstein asks Freud: ‘Wie ist es möglich, dass die soeben genannte Minderheit die Masse des Volkes ihren Gelüsten dienstbar machen kann, die durch einen Krieg nur zu leiden und zu verlieren hat’, and ‘Wie ist es möglich, dass sich die Masse durch die genannten Mittel bis zur Raserei und Selbstaufopferung entflammen lässt? Die Antwort kann nur sein: Im Menschen lebt ein Bedürfnis zu hassen und zu vernichten.’ 33

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about the problems of modern mass society being insufficiently addressed by the democracy of the Weimar Republic. In Die geistige Situation der Zeit (1932), Karl Jaspers captured the ambivalence of European intellectuals towards ‘the people’, their doubt and concerns about democracies under pressure of populism and/or mass-induced political psychology: The essential problem of the political history of our time is whether the masses of mankind can be democratised, whether average human nature is such as to enable each to accept his share of responsibility as a citizen equally aware with all others of what he is doing, and ready as a part of his daily life to take his share in deciding fundamental political issues.39

There was an oscillation between contempt and appreciation of ‘the people’. Concerns about populist demagogy endangering democracies impacted many international legal scholars of the 1920s and 1930s. The (methodological) individualism that arose in a number of different international legal theories is not a coincidence. With collective (political) creeds all around and ‘mass’ sentiments polluting increasingly the political and legal systems of Europe, the role of the individual, her rights and responsibilities, in international law moved to the forefront of the debate.40 With the polluted politics in mind, Kelsen was among the most explicit opposers of any anthropomorphical thinking in law, rejected any kind of State sovereignty or State will (‘ein Phantom’) and argued for the sovereignty of the law only. His scholarship on international law is one fine example of how a political context defined by populism may influence international legal thought.41 Here it merely serves as a case in that point.

1.4

Papers Introduced and Summarised

As we set out above, this volume treats populism as a specific way of doing politics that is not necessarily tied to any substantive political program. What populists want and how people, elite and leader are constructed, is dependent on the political context in which they operate. For this reason, our aim has been to have chapters on different regions in the world. Unfortunately, we lost our chapter on (South) Asian populism. All the more unfortunate, since there is quite some literature arguing that this is a different kind of populism42 and thus it would have been great to explore its particular relationship with international law and governance. Still, our volume covers populism as it has occurred in rather different places in Latin America,

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Jaspers 1932. See Nijman 2004, pp. 84–243. 41 Nijman 2004; Von Bernstorff 2010. 42 See, for example, the discussion by Joshua Kurlantzick (J Kurlantzick, Southeast Asia’s Populism Is Different but Also Dangerous, Council on Foreign Relations, 1 November 2018, https://www.cfr.org/article/southeast-asias-populism-different-also-dangerous, accessed 9 May 2019); also Kenny 2018. 40

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Africa, Europe, and North America. In addition, several chapters examine the way in which international institutions have (or have not) responded to challenges by populist movements. This NYIL starts with the chapter by Lukasz Gruszcynski and Jessica Lawrence, who critique the idea that Trumpian populism is opposed to neoliberalism. Although the list of free trade promoting treaties bashed by the Trump administration is impressive, his government still buys into a set of core markers of neoliberalism: (a) the centrality of the market; (b) the idea that self-interest is the driving force among agents; and (c) the idea that government is there to facilitate markets as best as it can. In other words, Trump links his distinctive political style to economic agendas that are not substantially different from those of his conservative predecessors. His critique of the (global) elite, Lawrence and Gruszcynski argue, should not be mistaken for a communitarian project. Instead, it implies a refocusing of neoliberalism, not a rejection of the competitive logic that underlies it. Where the competitive logic is curtailed, it is for the protection of corporate interests, not for the benefit of the betrayed people on whose behalf Trump claims to speak.43 Where Gruszcynski and Lawrence focus on the substantive program propagated by the Trump government, Aaron Fichtelberg draws attention to populism as a political style with a strong emotive side/feature. What sets Trump’s populism apart from earlier US manifestations of populism (e.g. Andrew Jackson, agrarian populism or George Wallace), Fichtelberg argues, is a politics of paranoia. Following Robins and Post, Fichtelberg defines political paranoia as a style characterized by guardedness, suspiciousness, hypersensitivity and isolation. This trait runs through all policy fields and also impacts Trump’s dealing with international law. Compared to previous governments, including those with populist and nationalist inclinations, the Trump government shows an unprecedented hostility towards existing international law and cooperation. International norms and institutions are not just to be ignored if they prove diametrical to US interests, they are to be treated as a betrayal of the American people, unless proven otherwise. However, in line with the paranoid style of governing, resentment against international norms is significantly less strong (or absent) when the international ‘deals’ have been undertaken by the leader himself.44 That populism can be tied to very different substantive agendas is evidenced by the chapter by Alejandro Rodiles, which sketches the history of populist dealings by government with international law in Latin America. He takes the reader from the 1940s (Peron), via the 1970s (return of Peronismo and the initiatives by the Echeverria government in Mexico) to the 21st century ‘New Latin America Left’. Although the specific manifestations of populism of course vary per country and period, Rodiles traces some commonalities between the different forms of populism. First, populism in Latin America tends to be left-wing and lacking the

43 44

Gruszczynski and Lawrence, Chap. 2 in this volume. Fichtelberg, Chap. 3 in this volume.

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xenophobic attitudes that characterise many right-wing populist movements elsewhere. Secondly, their stance towards international law is overall supportive, in particular when it comes to regional forms of integration and legal cooperation. Their rejection of neo-liberal forms of international cooperation should not be mistaken for a cynical stance towards international law; instead, they illustrate how well a populist political style can be combined with a positive attitude towards international law.45 Rodiles’ analysis ties in quite nicely with Christine Schwöbel-Patel’s analysis of the relation between populism and international law. According to Schwöbel-Patel, there is a tendency in international scholarship to treat populism as a threat to international law. While this may not always be incorrect, it is at least incomplete. International structures and agents have helped to uphold inequalities within and among nations, thus making it easier for populists to create a sense of betrayal by an international elite. In addition, Schwöbel-Patel argues, not all populism is right wing or against international law per se. She calls upon her fellow international lawyers to turn to forms of populism that have helped to critique the neo-liberal assumptions of several international institutions, while remaining faithful to the ideals of international cooperation and solidarity.46 Edwin Bikundo’s chapter focuses on the self-understanding of the Mungiki, a group that has been engaged in repeated cycles of political violence in Kenya. The name ‘Mungiki’ stands for ‘masses’ or ‘multitude’, and the group indeed sees itself as a mouthpiece of the oppressed Kenyan people. In order to enact their role as liberators, they engage in what Bikundo calls a ‘Faustian pact’ to do good through evil. Interestingly, this language was also adopted by the counsel of Francis Muthaura in his case before the ICC. The counsel argued that the case as presented by the Prosecution read like ‘a deal with the devil’ between the government and ‘a criminal, a lamentable, an invidious group’. Yet, Bikundo argues, international criminal law is unable to do justice to the nature of the Mungiki, because it speaks of the people, but lacks a conception of the people as an acting political subject.47 Veronika Bílková directly takes up some of the critiques of human rights brought up by several populist movements. In particular, she seeks to refute three critiques of human rights often brought up by populist movements. The first is the security argument, claiming that security concerns should trump human rights. The second is the legitimacy argument, which states that human rights favour particular groups instead of the general population. The third is the democracy argument, which claims that human rights are against the will and interest of the majority in a national political community. Bílková acknowledges that populism seldom rejects the notion of human rights altogether. She also shares some of the concerns voiced by populists when it comes to human rights. However, she also argues that the

45 46 47

Rodiles, Chap. 4 in this volume. Schwöbel-Patel, Chap. 5 in this volume. Bikundo, Chap. 6 in this volume.

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critiques are simplified and exaggerated, and rooted in the myth of a self-serving elite that betrays the innocent people.48 Rene Urueña shows how populism is taken up by an initially religious rather than political movement like the Evangelical Christians in Latin America. Moving from the private into the public sphere, they claim protection of their beliefs by ‘freedom of expression’ while in fact they engage in ‘othering’ the members of the LGBTQI community and beyond that in reshaping the democratic public order. The LGBTQI community is affected by the Evangelical-driven populism in a classical way, namely that struggles for individual rights challenge legal systems and their legitimacy and so LGBTQI rights are another example of the response.49 Lys Kulamadayil’s chapter relates to the discontent with global economic law and governance through a critical analysis of the World Bank’s 2017 World Development Report on Governance and the Law (WDR17). WDR17 was published in the midst of political struggles where populist styles and nationalistic agendas were pushed in relation to issues such as migration, economic development, distributive justice and environmental policies. As a result, the WDR17 itself became part of the ideological struggles between economic liberalism and economic nationalism. In this context, Kulamadayil’s chapter focuses on the role of law envisaged in the report. She shows how the WDR17 understands law as a means to ensure commitment, coordination and cooperation as well as a way to constrain power, prescribing behavior and facilitating contestation. She points to the Report’s ‘remarkably enthusiastic appraisal of law and its ability to steer governance in a way that it would effectively achieve security, equity and growth in a society.’50 Populist and economic nationalists, however, see - in her view - law more in terms of its instrumental value, while questioning the benefits of commitment, cooperation and contestation per se. The underlying issues here may not be the governance functions of law per se, but rather the policies and practices it supports. That is, those of the liberal economic ordering.

References Alston P (2017) The Populist Challenge to Human Rights. Journal of Human Rights Practice 9(1):1–15 Canetti E (1980) Die Fackel im Ohr: Lebensgeschichte 1921–1931. Verlag CH eds. S. Fischer Verlag, Berlin Dyzenhaus D (1997) Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar. Oxford University Press, Oxford

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Bílková, Chap. 7 in this volume. Urueña, Chap. 8 in this volume. See also on these cultural political struggles and the development of human rights Reus-Smit 2011. 50 Kulamadayil, Chap. 9 in this volume. 49

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Ecker-Ehrhardt M (2014) Why Parties Politicise International Institutions: On Globalisation Backlash and Authority Contestation. Review of International Political Economy 21(6):1275– 1312 Fortuyn P (2002) De Verweesde Samenleving, een Religieus-Sociologisch Traktaat. Karakter Uitgevers, Uithoorn Jacobzon AJ, Schlink B (2000) Weimar: A Jurisprudence of Crisis. University of California Press, Berkeley Jaspers K (1932) Die geistige Situation der Zeit. Walter de Gruyter & Co, Berlin Kaltwasser CR, Taggart P, Espejo PO, Ostiguy P (2017) Populism: An Overview of the Concept and the State of the Art. In: Kaltwasser CR et al (eds) The Oxford Handbook of Populism. Oxford University Press, Oxford Kelsen H (1999) Pure Theory of Law, ‘Labandism’, and Neo-Kantianism: A Letter to Renato Treves. In: Paulson SL (eds) Normativity and Norms: Critical Perspectives on Kelsenian Themes. Oxford University Press, Oxford Kenny P (2018) Populism in Southeast Asia. Elements in Politics and Society in Southeast Asia. Cambridge University Press, Cambridge Klein N (2017) No Is not Enough: Defeating the New Shock Politics. Allen Lane, London Lewis S (1935) It Can’t Happen Here. Doubleday, Doran & Co., New York Lijphart A (1968) Verzuiling, pacificatie en kentering in de Nederlandse politiek. De Bussy, Amsterdam Madsen MR, Cebulak P, Wiebusch M (2018) Backlash against International Courts: Explaining the Forms and Patterns of Resistance to International Courts. International Journal of Law in Context 14(2):197–220 Mouffe C (2018) For a Left Populism. Verso, London Mudde C (2004) The Populist Zeitgeist. Government and Opposition 39 (4):542–63 Nijman J (2004) The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law. T.M.C. Asser Press, The Hague Posner EA (2017) Liberal Internationalism and the Populist Backlash. University of Chicago Public Law Working Paper No. 606. http://dx.doi.org/10.2139/ssrn.2898357. Accessed 23 April 2019 Reus-Smit C (2011) Human rights in a global ecumene. International Affairs 87(5):1205–1218 Urbinati N (2017) Populism and the Principle of the Majority. In: Kaltwasser CR et al (eds) The Oxford Handbook of Populism. Oxford University Press, Oxford Vervaet F (2016) Magistrates Who Made and Applied the Law. In: du Plessis PJ, Ando C, Tuori K (eds) The Oxford Handbook of Roman Law and Society. Oxford University Press, Oxford Von Bernstorff J (2010) The Public International Law Theory of Hans Kelsen: Believing in Universal Law. Cambridge University Press, Cambridge Von Ungern-Sternberg J (2006) The Crisis of the Republic. In: Flower HI (ed) The Cambridge Companion to the Roman Republic. Cambridge University Press, Cambridge Zonderop Y (2018) Ongelofelijk: Over de verrassende comeback van religie. Prometheus, Amsterdam

Chapter 2

Trump, International Trade and Populism Lukasz Gruszczynski and Jessica Lawrence

Contents 2.1 Introduction........................................................................................................................ 2.2 Populism, Neoliberalism and Construction of Truth........................................................ 2.3 Trump and International Trade Governance..................................................................... 2.4 Trump’s Neoliberal Populism ........................................................................................... 2.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

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Abstract This chapter argues that Donald Trump’s particular brand of populism should be seen not as a rejection of neoliberalism, but rather as a variant of it. Both Trump’s ‘populist neoliberalism’ and orthodox ‘globalist neoliberalism’ share the core markers of neoliberal political rationality: the conceptual centrality of the market as the site of veridiction in political and social life; a vision of the individual —at least in the aggregate—as the rational, self-interest maximizing homo economicus; and a reliance on government to create the optimal conditions for market functioning. While Trump indeed differs from globalists when it comes to assessing the value of current international economic governance structures, he has by no Lukasz Gruszczynski is External Research Fellow at the Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies, and Associate Professor (dr. habil.) at Kozminski University. Jessica Lawrence is Associate Professor at Central European University, Department of Legal Studies. L. Gruszczynski Kozminski University, Warsaw, Poland e-mail: [email protected] L. Gruszczynski HAS CSS Institute for Legal Studies, Budapest, Hungary J. Lawrence (&) Central European University, Budapest, Hungary e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_2

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means rejected the broader tenets of neoliberal political reason. Rather, his policies aim to promote a free market-oriented neoliberalism domestically, while advocating competitive policies in the international market that clash with the cooperative globalist neoliberalism of the centrist ‘elite’. This alternative neoliberal vision of the global economy differs only in that it is oriented toward competition rather than cooperation on the international front. The chapter thus argues that Trump’s economic policies are not a sign of the victory of ‘the people’ over neoliberalism, but rather of Trump’s opposition to the internationalism of the globalist neoliberal political platform.







Keywords Globalism Globalization International trade Neoliberal populism Populism Protectionism Trump




2.1








Neoliberalism


Introduction

The surprising (to many) vote in favor of Brexit in the United Kingdom, the election of Donald Trump as the 45th President of the United States (US), and the rise of nationalist movements throughout Europe have brought with them a renaissance of thinking and writing about ‘populism’. Many experts, trying to explain these developments, have argued that these victories should be seen as forceful populist repudiations of the neoliberal order—the currently dominant ideological paradigm in the Western world.1 The rejection of the European Union in the Brexit vote, of ‘migrants’ and ‘non-Western values’ by right-leaning European parties, and the ‘America first’ nationalism of the Trump campaign have been painted as a vociferous vote of no confidence in the neoliberal governing platform. In reference to the US presidential election, Naomi Klein wrote that ‘[i]t was the Democrats’ embrace of neoliberalism that won it for Trump.’2 In this narrative, neoliberalism is contrasted with populism, as embodied by Trump and others, and these two poles are regarded as the opposing forces that shape contemporary politics. Rather than being opposites, however, this chapter argues that, at least in case of President Trump, the globalist neoliberalism rejected by voters may be simply the other side of the coin to an emerging neoliberal populism. Both Trump and globalist neoliberals seem to share the core markers of neoliberal political rationality: the

1 See, e.g., Gusterson 2017. See also L Elliott, Populism is the result of global economic failure, The Guardian, 26 March 2017, https://www.theguardian.com/business/2017/mar/26/populism-isthe-result-of-global-economic-failure, accessed 21 March 2019. 2 N Klein, It was the Democrats’ embrace of neoliberalism that won it for Trump, The Guardian, 9 November 2016, https://www.theguardian.com/commentisfree/2016/nov/09/rise-of-the-davosclass-sealed-americas-fate, accessed 21 March 2019.

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conceptual centrality of the market as the site of veridiction in political and social life; a vision of the individual—at least in the aggregate—as the rational, self-interest maximizing homo economicus; and a reliance on government to create the optimal conditions for market functioning, whether that is by stepping in or stepping out. They differ only with respect to the particular political policy mixes they suggest—not in their underlying neoliberal worldview.3 In order to illustrate this argument, this chapter takes as its example one of the primary points of difference between Trump’s populist neoliberalism and the globalist neoliberalism of the ‘elite’: their stance on international trade governance. This area has been singled out by many4 as a clear example of Trump’s ‘anti-neoliberal populism’ in action, with his denunciations of regional trade agreements, imposition of punitive tariffs on Chinese goods, and disruption of the World Trade Organization (WTO) illustrating his rejection of the dominant neoliberal vision. This chapter more closely examines Trump’s discourse surrounding these issues, concluding that his populism represents not a true rejection of neoliberalism, but rather an alternative neoliberal vision that is oriented toward competition rather than cooperation on the international front. The chapter proceeds as follows. Section 2.2 sets out the theoretical background for the discussion. It first examines the concept of populism, here articulated as a ‘thin ideology’ that is defined primarily as the opposition of ‘the people’ toward the policy program of the ‘elites’. It then examines the idea of neoliberalism as a political rationality by using tools drawn from Foucauldian governmentality studies, differentiating the over-arching political rationality from the particular policy programs that may be articulated within it. This ‘broad tent’ of neoliberal political rationality is what allows the articulation of both ‘populist’ and ‘elite’ policy positions that share the same underlying political logic while differing on the specifics of how best to pursue their goals. Section 2.3 then proceeds to the illustrative example of Trump’s international trade policy. It sets out in detail Trump’s ‘populist’ trade positions, both in the course of the election campaign as well as during his time in office so far. Section 2.4 then re-reads Trump’s populist international trade policies in light of the domestic dimension of Trump’s political agenda. In this context, it argues that ‘Trumpism’ should not be seen as the polar opposite of neoliberalism, but rather as ‘neoliberal populism’ that opposes its nationalist focus to the ‘globalist neoliberalism’ of the centrist ‘elites’. Section 2.5 concludes.

3

Note that while the focus of this chapter is on the impact of neoliberalism on Trump’s populist rhetoric and actions, contemporary neoliberalism is not hegemonic, but coexists and is hybridized with other governing logics. Individuals are never fully colonized by any particular subjectivity, homo economicus or otherwise, but rather have complex identities constructed from multiple competing influences and relationships. 4 See, e.g., Higgott 2018; Cozzolino 2018, at 55–59.

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Populism, Neoliberalism and Construction of Truth

While in common parlance the term ‘populism’ is used to describe a wide variety of demagogic and opportunistic policies, populism in the academic literature is predominantly defined in reference to the relationship between the ‘elite’ and the ‘ordinary people’.5 Populism is not equivalent to nationalism (whether ethnic or otherwise), Peronism, agrarian reform movements, or any other particular doctrine. Instead, it is a form of relational politics that emphasizes the distinction between the disadvantaged ‘ordinary people’ and the ‘elite’. As John B. Judis and Ruy Teixeira put it, populist movements pit ‘the people versus the powerful’.6 Cas Mudde adds a layer of complexity, defining populism as ‘an ideology that considers society to be ultimately separated into two homogenous and antagonistic groups, “the pure people” versus “the corrupt elite”, and which argues that politics should be an expression of the volonté générale (general will) of the people.’7 Defined in negative terms, as ‘opposition to’, populism has a limited core set of beliefs. It is a ‘thin’ ideology that can be combined with a variety of political positions, from nationalism to socialism to theocracy, so long as the political movement allows for a focus on the needs of the ‘authentic people’ and antagonism against the ‘elite’. As a consequence, one may speak of radical right populism, neoliberal populism, left populism, centrist populism, and so on.8 Ernesto Laclau describes the phenomenon, which he conceptualizes in purely discursive terms, as an essentially relational one: populism is a political logic that instrumentalizes discourses of difference and equivalence in the service of its political aims.9 It is a mechanism of politics whose terms—‘the people’, the ‘elite’—lack concrete definitions, and may be mobilized in service of contingent political ends. A ‘populist’ movement must thus ‘construct a people’ in an active political and linguistic sense. Although ‘the people’ remains an elusive and context-dependent category (as it is a relational concept constructed in opposition to something external), this group tends to include, in the rhetoric of populists, the majority of people10—a feature that may explain the preference of populists for direct forms of majoritarian democracy and their aversion to institutional checks and balances that are dominated by the ‘elites’. This silent majority is also attributed with certain virtues. It is regarded as inherently good and right, as well as epistemically superior (e.g. the focus on ‘ordinary wisdom’ as opposed to expert opinion).11 A charismatic leader also often

5

Mudde 2004, at 543. Judis and Teixeira 2002 (quoted in Mudde 2004, at 543). 7 Mudde 2004, at 543. 8 B Margulies, Populism: A Field Guide, Political Studies Association, 3 June 2016, https://www. psa.ac.uk/insight-plus/blog/populism-field-guide, accessed 25 March 2019. 9 Laclau 2005, at 69–72. 10 Westlind 1996; Laclau 2005, at 49; Ware 2002, at 102. 11 E.g. Taggart 2002, at 76; in the older literature Shils 1956, at 98. 6

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plays an important role in populist movements, and is seen as the one who expresses the will of ‘the people’.12 In this way, the ‘form’ of populism (e.g. antagonism to the ‘elite’ and affirmation of ‘ordinary people’) is much more clearly defined than its ‘substance’ (against whatever the ‘elite’ are for). With respect to the latter, the politics of populists and the politics of the ‘elite’ are essentially mutually constitutive. The content of the populist critique is defined by and in opposition to the politics of the ‘elite’. Populism, in other words, is a technique—a mechanism for ‘doing politics’, the content of which is constructed in relation to the logic of differentiation and fracture. In order to understand the way this technique of politics has been deployed in the realm of international economic policy, it is necessary first to take a step back and investigate neoliberalism as the form of political reason that currently dominates the contemporary political order. Foucauldian and post-Foucauldian work on biopolitics and governmentality are helpful in this regard. One of the most fruitful lines of inquiry in the recent literature on governmentality studies—a body of work building on Foucault’s somewhat chaotic initial sketches on ‘the art of government’ in a series of lectures from the late 1970s13—is the analysis of political rationalities. These rationalities are the ‘mentalities of government’:14 the ‘truths’ and logic systems that underlie governmental and individual behavior. Uncovering these rationalities involves investigating the ways in which our collective social order thinks about how, why, when, and with respect to what ‘government’ should happen. In Nikolas Rose and Peter Miller’s words: Problematics of government may be analyzed, first of all, in terms of their political rationalities, the changing discursive fields within which the exercise of power is conceptualised, the moral justifications for particular ways of exercising power by diverse authorities, notions of the appropriate forms, objects and limits of politics, and conceptions of the proper distribution of such tasks among secular, spiritual, military and familial sectors.15

These rationalities are embedded in language and practice and draw upon the forms and body of knowledge that are present and accessible within the social order. They are not ‘innocent’, but instead direct patterns of behavior along particular pathways, determining what actions, arguments, and concepts appear rational, reasonable, and available, and which appear irrational, unreasonable, and precluded. From a governmentality perspective, therefore, political rationality is bound up with the construction of ‘truth’. What we ‘know’ to be ‘true’ about human behavior, the natural world, the operation of government, and so on, is determined by reference to these conceptual maps.

12

Canovan 1999, at 6; Albertazzi and McDonnell 2008, at 5; note however that some argue that the role of leadership ‘facilitates rather than defines populism’ (e.g. Mudde 2004, at 548). 13 In particular, see Foucault 2003, 2007, 2008. 14 See Dean 2010, at 24; Rose and Miller 1992, at 173. 15 Rose and Miller 1992, at 175.

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The dominant form of political reason (though not the only one) in the contemporary governmental order is neoliberalism. Neoliberalism naturalizes economic logic as a kind of de-politicized universal truth, casting the market as the primary site of veridiction for political and social life. As David Harvey writes: Neoliberalism is (…) a theory of political economic practices that proposes that human well-being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterized by strong private property rights, free markets and free trade. The role of the state is to create and preserve an institutional framework appropriate to such practices.16

Looking through this frame, people have begun to see all behavior—not merely behavior in the market—in economic terms. Concepts such as ‘cost/benefit analysis’, ‘competition’, and ‘supply and demand’ have become not just descriptors of behavior in the market, but also epistemological or even ontological properties that describe our ways of being and behaving in the world. As Wendy Brown describes in her landmark 2015 work Undoing the Demos: The veridiction of the market has two dimensions in neoliberal reason: the market is itself true and also represents the true form of all activity. Rational actors accept these truths, thus accept “reality”; conversely, those who act according to other principles are not simply irrational, but refuse ‘reality’. Insofar as rational-choice theory expresses this equation and becomes the hegemonic model for social-science knowledge, it represents a further development of what Herbert Marcuse termed the “closing of the political universe”—the erasure of intelligible, legitimate alternatives to economic rationality.17

Neoliberalism as a mode of political rationality contains within it many different particular policy programs. The most common association is with the set of economic ideas pushed in the 1990s as the ‘Washington consensus’, which called for economic liberalization in the form of specific actions such as privatization, austerity, deregulation and liberalization of trade. The aim of these interventions was to increase the role of the private sector in the economy and society (both in terms of rights and duties) and to reduce the role played by the state.18 Other policy programs may also fall under the neoliberal umbrella, however. Nancy Fraser, for example, speaks of a ‘progressive neoliberalism’ that combines ‘an economic program with a liberal-meritocratic politics of recognition’ that empowers various egalitarian social movements.19 What these different political programs share is a belief that market logic can and should be extended beyond the economic sphere to other areas of political and social life, that the aggregate of individual choices can be understood according to the logic of self-interest maximization, and that the task of government is to use its power to create the optimal conditions for market functioning.

16 17 18 19

Harvey 2005, at 2. Brown 2015, at 67–68. For a general overview, see Springer et al. 2016. Fraser 2017.

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Law, in the neoliberal world, is reimagined as a technique for improving the quality of market management. Neoliberal law, as Wendy Brown suggests, ‘facilitates the economic game, but does not direct or contain it.’20 This move to law as ‘rules of the game’ rather than ‘arbiter of rights’ or ‘instrument of sovereign will’ reveals itself in movements such as the ‘quantitative turn’, the rise of ‘law and economics’, tradable pollution permits, impact assessments, or more recently ‘nudging’ and other mechanisms derived from behaviorist theory. These and other new legal techniques demonstrate that to an increasing extent we view human behavior through the lens of an economic, managerial rationality. In this vision, social behavior is predictable on an aggregate level (if not an individual one), and aggregate behavior is governed by economic principles. We therefore design legal interventions that push actors into behavioral shifts, the idea being that law can govern more efficiently (and less intrusively) if it does so through adjusting costs and benefits, and mandating procedural rather than substantive interventions.21 As this type of market rationality becomes increasingly hegemonic, it also becomes increasingly normative: things that conform to this logic begin to look like ‘common sense’, and things that do not begin to look like matters of ‘political preference’. Thus, ideas that are presented in the ‘mathematical’ language of market rationality are de-politicized and acquire a sort of epistemological privilege as a result. Returning to the economic policy discussion, the rise of neoliberal political rationality has led to the de-politicization of economic management, presenting efficient, aggregate welfare-maximizing, governance-driven policy prescriptions as ‘mathematical’ or ‘scientific’ truths that are the sole legitimate choice for effective and efficient government. The benefits of economic growth and free markets are questioned only by those on the political fringes. It is only beyond this point that the disagreements between the ‘elite’ political program and Trump’s ‘populist’ vision begin to arise. The neoliberal orthodoxy that characterized the Washington consensus and continues, in a somewhat softer form, to dominate economic policy discussions in the US treats the benefits of free trade policies as axiomatic, mathematical facts (e.g. reducing tariffs increases aggregate welfare) and dismisses disagreement with these facts as ‘political’, implying that opposition results either from a failure of understanding, a bad faith manipulation of the facts, or pandering to particular interests at the expense of what is ‘known’ to be ‘true’ about the benefits to the aggregate whole. There is no space for legitimate debate: it is a matter of being ‘right’ (deferring to economic expertise) or ‘wrong’ (pandering to political interests). By contrast, Trump’s populist counter-movement has represented globalist neoliberal economic policies as ‘elite’ political projects that favor the interests of globalized businesses, ‘export’ jobs to the detriment of local workers, and bring with them unwanted and undemocratic political changes. In opposition to this, he has

20 21

Brown 2015, at 67. See generally Lawrence 2018.

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proposed ‘economic nationalist’ policies that see the international sphere as a competitive market in which the US must exercise its leverage as a ‘stick’ in order to maximize its own self-interest—if need be, at the expense of its global competitors. In this vision, international trade is a zero-sum game in which countries and their domestic producers gain at the expense of other states, rather than a win-win relationship that produces mutual prosperity and international peace (as argued by neoliberal globalists).22 International trade relations have thus become an area of contested terrain in the discursive war of Trumpian populism, appearing to pit the de-politicized economic ‘truths’ espoused by neoliberal political ‘elites’ against the politicized countermovement of ‘the people’. But whether the recent rise of economic-nationalist rhetoric really represents an alternative governmental paradigm, an ‘outside’ to neoliberal market logic, is decidedly less clear.

2.3

Trump and International Trade Governance

In the world of international economic relations, populist movements in Europe and the US share a common scepticism of neoliberal economic policies and globalization more generally. They see globalization (a part of which is the liberalization of international trade and investment flows) as a project designed and supervised by international ‘elites’ that marginalizes both nations and ‘ordinary people’. In this context, they appeal to those who have been ‘left behind’ by globalization, technological changes, and other economic developments. They also often refer to the concept of the ‘heartland’, a mythic space (‘a territory of the imagination’) frequently connected with the nation and disembedded from international or supranational structures, and the ‘glorious past’.23 As Graham Wilson notes, populist leaders believe that ‘[n]ation states, not international agreements and organisations, [are] the natural and appropriate units for organising societies and their affairs. Nation states, unlike international organisations, (…) appeal to and mobilise the masses. International organisations [appeal] only to elite opinion.’24 Nationalism in the context of international trade played an important role during the 2016 US presidential election campaign. The topic was first picked up by Donald Trump and Bernie Sanders, both of whom played on real and imagined anxieties surrounding globalization and its impacts on working- and middle-class voters, and was gradually taken up by the other candidates from both the 22

Cozzolino 2018, at 68. Taggart 2002, at 66; Taggart 2000, at 95; Inglehart and Norris 2016, at 4. 24 Wilson 2017, at 554. This resonates with one of the Trump’s remarks in his recent address to the United Nation General Assembly: ‘Sovereign and independent nations are the only vehicle where freedom has ever survived, democracy has ever endured, or peace has ever prospered.’ (A Ward, Trump’s speech to the UN General Assembly, Vox, 25 September 2018, https://www.vox. com/2018/9/25/17901082/trump-un-2018-speech-full-text, accessed 21 March 2019). 23

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Republican and Democratic sides. As with other issues, Trump was not entirely consistent with respect to his position on this matter. On the one hand, he sometimes described himself as a supporter of trade liberalization, declaring: ‘I’m a free trader!’25 On the other hand, he frequently criticized the current trade system, describing it as unjust and one-sided. In this context, he seemed to be concerned with a number of specific but related issues. The US trade deficit was central to Trump’s story. According to Trump, existing trade imbalances between the US and the rest of the world were caused by unfair competition from China and other trading partners (he explicitly pointed in this context to Japan and Mexico).26 In particular, China was labelled as a currency manipulator that increases the competitiveness of its exports by artificially lowering the value of the Renminbi against the US dollar.27 He also frequently accused China of stealing trade secrets and damaging the intellectual property rights of American companies (e.g. by requiring technology transfer in the case of investment projects located in China).28 More generally, Trump often stressed the unequal access to the ‘open’ American market in comparison with ‘closed’ foreign ones.29 All of this was made possible, he argued, by previous US administrations that were unable to secure beneficial trade deals, whether of a bilateral or multilateral character.30 This situation not only undermined the international position of the US but also harmed the interests of American companies and led to increased unemployment in the American industrial sector (e.g. because the uncontrolled inflow of foreign goods has gradually replaced American counterparts or the practice of US companies of offshoring their production).31

25 This statement was made during the Republican Debate on 14 January 2016, see HS Edwards, Donald Trump, Tariff-Supporting Free Trader, Time, 15 January 2016, http://time.com/4181999/ donald-trump-tariff-free-trade/, accessed 21 March 2019. 26 See, e.g., the transcript of Trump’s speech in Monessen, Pennsylvania on 28 June 2016, Time, Read Donald Trump’s Speech on Trade, 28 June 2016, http://time.com/4386335/donald-trumptrade-speech-transcript/, accessed 21 March 2019. 27 See, e.g., Trump’s speech in Gettysburg, Pennsylvania on 22 October 2016, CNN Transcripts, Trump Speaks in Pennsylvania; Examining Proposed Actions in First 100 Days of Trump Administration. Aired 12-1p ET, http://transcripts.cnn.com/TRANSCRIPTS/1610/22/cnr.03.html, accessed 21 March 2019. 28 See, e.g., Coalition for a Prosperous America, Donald Trump: Reforming the U.S.-China trade relationship to make America great again, 20 November 2015, https://www.prosperousamerica. org/donald_trump_reforming_the_u_s_china_trade_relationship_to_make_america_great_again, accessed 21 March 2019. 29 See, e.g., M Boyle, Exclusive–Donald Trump declares war on Obamatrade: ‘Time to send a real businessman’ to White House to end this, Breitbart, 5 October 2015, https://www.breitbart. com/politics/2015/10/05/exclusive-donald-trump-declares-war-on-obamatrade-time-to-send-areal-businessman-to-white-house-to-end-this/, accessed 21 March 2019. 30 See n 26 above. 31 Ibid.

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Trump’s proposed recipe for addressing these problems was straightforward. First, he called for the renegotiation of existing trade agreements. If renegotiations were refused, he argued that the US should simply withdraw from its international commitments. He particularly stressed this argument in the context of the North American Free Trade Agreement (NAFTA),32 which Trump called ‘the single worst trade deal ever approved in this country’ and ‘one of the worst things that ever happened to the manufacturing industry.’33 Second, Trump proposed taking a similar approach with respect to US membership in the WTO. In particular, he threatened to pull the US out of the WTO if any other Member decided to bring a legal challenge against his policy plans.34 In another interview, he called the Organization a disaster and again threatened to withdraw the US if other WTO Members did not accept a set of new (unspecified) terms of American membership.35 Third, Trump claimed that some trade and investment agreements should be terminated outright without any attempt to modify them. With respect to the Trans-Pacific Partnership (TPP),36 for example, Trump declared that ‘there is no way to fix [the] TPP. […] We do not need to enter into another massive international agreement that ties us up and binds us down, like [the] TPP does.’37 Instead of entering into mega-regional trade pacts like TPP or the planned Transatlantic Trade and Investment Partnership (TTIP) between the US and the European Union (EU), Trump proposed negotiating new ‘fair, bilateral trade deals that bring jobs and industry back onto American shores.’38

See, e.g., M Mali, Trump threatens to ‘break’ trade pact with Mexico, Canada, The Hill, 26 September 2015, https://thehill.com/blogs/ballot-box/255053-trump-vows-to-renegotiate-or-breaktrade-pact-with-mexico-canada, accessed 25 March 2019. 33 J Calmes, Trump Scores Points on Trade in Debate, but Not So Much on Accuracy, The New York Times, 28 September 2016, https://www.nytimes.com/2016/09/28/us/politics/hillary-clintondonald-trump-trade-tpp-nafta.html, accessed 25 March 2019. 34 See, e.g., W Mauldin, Trump Threatens to Pull U.S. Out of World Trade Organization, The Wall Street Journal 24 July 2016, https://blogs.wsj.com/washwire/2016/07/24/trump-threatens-topull-u-s-out-of-world-trade-organization/, accessed 28 March 2019. 35 I Mount, Donald Trump Says It Might Be Time for the U.S. To Quit the WTO, Fortune, 25 July 2016, http://fortune.com/2016/07/25/donald-trump-free-trade-wto/, accessed 25 March 2019. 36 The TPP was a trade agreement signed between the US (under the Obama administration), Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam on 4 February 2016. The agreement was intended to create the largest free trade area in the world, representing approximately 40% of the world’s economic output (see KA Elliot et al. (February 2016), Assessing the Trans-Pacific Partnership, Volume 1: Market Access and Sectoral Issues, Peterson Institute for International Economics Briefing 16-1, https://piie.com/system/files/ documents/piieb16-1.pdf, accessed 25 March 2019). 37 See n 26 above. 38 T Hains, Message from President-Elect Trump: We Will Withdraw From TPP On Day One, RealClearPolitics, 21 November 2016, https://www.realclearpolitics.com/video/2016/11/21/a_ message_from_president-elect_trump_introducing_policy_plans.html, accessed 25 March 2019. 32

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Fourth, Trump argued that exports from certain countries—most notably from China but also other states that run considerable trade surpluses with the US— should be subjected to punitive tariffs or some form of taxation (as high as 45%).39 American companies offshoring their activities were to face a similar punishment in the form of additional taxes. As Trump explained: ‘We lose a fortune on trade. The United States loses with everybody. We’re losing now over $500 billion in terms of imbalance with China, $75 billion a year imbalance with Japan. By the way, Mexico, $50 billion a year imbalance.’40 Many commentators expected that Trump would soften his tone on trade after winning the election. However, this has not happened. Trump’s choice of Robert Lighthizer, a noted advocate of protectionist tariffs and trade policies,41 as the United States Trade Representative (USTR) made clear that he is indeed skeptical about the current system of international trade governance. Trump has not only kept up his rhetoric on trade but has also started to implement specific promises he made during the campaign. One of the first decisions the new president took was to withdraw the US from the TPP.42 This was done despite the fact that one of the objectives of the TPP was to counterbalance the economic influence enjoyed by China—the country that, according to Trump, is the US’s primary geopolitical competitor—in South-East Asia by consolidating American allies.43 It was widely expected that this move would lead to the termination of the TPP, but the remaining 11 countries eventually decided to proceed with the project in the absence of the US, and have signed a new agreement: the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).44 In the wake of these developments, Trump surprisingly

39

See n 26 above. This statement was made during the Fourth Republican Debate on 11 November 2015 in Milwaukee, see C Alter, Transcript: Read the Full Text of the Fourth Republican Debate in Milwaukee, Time, 11 November 2015 http://time.com/4107636/transcript-read-the-full-text-ofthe-fourth-republican-debate-in-milwaukee/, accessed 25 March 2019. 41 See, e.g., RE Lighthizer, Donald Trump Is No Liberal on Trade: Get-tough Views on China Recall Roots of Republican Party, The Washington Times, 9 May 2011, https://www. washingtontimes.com/news/2011/may/9/donald-trump-is-no-liberal-on-trade/, accessed 25 March 2019. 42 Technically speaking, the US simply informed the TPP depositary that it did not intend to become a party to the agreement (this was still possible as the agreement had not yet been ratified by the Congress), see Letter from the Office of the United States Trade Representative, 30 January 2017, https://ustr.gov/sites/default/files/files/Press/Releases/1-30-17%20USTR%20Letter%20to% 20TPP%20Depositary.pdf, accessed 25 March 2019. 43 See, e.g., Solís 2016. 44 D Sherwood and F Iturrieta, Asia-Pacific nations sign sweeping trade deal without U.S., Reuters, 8 March 2018, https://www.reuters.com/article/us-trade-tpp/asia-pacific-nations-signsweeping-trade-deal-without-u-s-idUSKCN1GK0JM, accessed 25 March 2019. 40

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stated that he would not exclude the possibility of joining this initiative if the US got a substantially better deal than had been the case under the original TPP negotiations.45 Trump was similarly unconvinced by the other trade deal planned by the Obama administration: the EU-US TTIP. The US and the EU had been in negotiations for the new mega-regional trade agreement since 2013 and the talks were already at an advanced level.46 However, the negotiations were paused almost immediately after Trump’s election.47 At the moment, it is unclear whether they will ever reopen. Trump also decided to renegotiate NAFTA, threatening to withdraw from the agreement if the renegotiation did not succeed.48 Talks between Mexico, Canada, and the US began in August 2017. The US’s stated objectives during the renegotiations were, inter alia, to (i) improve its trade balance and reduce the trade deficit with the two other NAFTA countries (e.g. by modifying rules of the origin for the automobile sector, reducing some tariffs for American products, and introducing additional protections for certain US sectors); (ii) require NAFTA countries to adopt and maintain certain minimum labor standards (including those which relate to minimum wages, hours of work, and occupational safety and health); (iii) eliminate NAFTA’s Chapter 19 dispute settlement mechanism, which allowed companies to appeal decisions of domestic courts in trade remedy cases to an international panel; and (iv) introduce an effective mechanism to prevent currency manipulation.49 The US also proposed the introduction of a ‘sunset clause’ that would provide for the expiry of the agreement after five years, on a rolling basis, unless all three countries agreed that it should continue. Considering the size of the American

J Pramuk, Trump: I would reconsider a massive Pacific trade deal if it were ‘substantially better’, CNBC, 25 January 2018, https://www.cnbc.com/2018/01/25/trump-says-he-wouldreconsider-trans-pacific-partnership-trade-deal.html, accessed 25 March 2019. 46 European Commission, Report of the 15th Round of Negotiations for the Transatlantic Trade and Investment Partnership, October 2016, http://trade.ec.europa.eu/doclib/docs/2016/october/ tradoc_155027.pdf, accessed 25 March 2019. 47 P Blenkinsop, U.S. trade talks in deep freeze after Trump win, says EU, Reuters, 11 November 2016, https://www.reuters.com/article/us-usa-election-eu-trade-idUSKBN1361UN, accessed 25 March 2019. 48 B Appelbaum and G Thrush, Trump’s Day of Hardball and Confusion on NAFTA, The New York Times, 27 April 2017, https://www.nytimes.com/2017/04/27/us/politics/trump-says-he-willrenegotiate-nafta-or-terminate-it.html, accessed 25 March 2019. It seems Trump was persuaded by his advisors and some Republican politicians to take a softer approach (Ibid.). 49 Office of the United States Trade Representative, Summary of Objectives for NAFTA Renegotiations, November 2017, https://ustr.gov/sites/default/files/files/Press/Releases/Nov% 20Objectives%20Update.pdf, accessed 25 March 2019. The list of objectives is much longer. Those listed here are connected with promises made by Trump during his election campaign. 45

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market, these changes would have guaranteed that the US maintained considerable negotiation leverage in the future. The negotiations were ultimately completed in September 2018, though at the time of writing the treaty has been signed but not yet ratified. The new pact – the United States-Mexico-Canada Agreement (USMCA)50 – does contain some further liberalization of markets beyond what was present in NAFTA (e.g. with respect to e-commerce). However, it also contains a number of elements that appear designed to benefit the US and maintain its future leverage at the expense of its negotiating partners (e.g. with respect to stricter rules of origin for the automotive sector and the agreement’s 16-year sunset clause).51 The Trump administration has had more success with the renegotiation of the 2012 United States-Korea Free Trade Agreement (KORUS), which lasted only a few months. In March 2018, the parties announced that they had reached an agreement in principle on planned revisions, and the final agreement was signed at the end of September 2018.52 The alterations that were introduced were by no means revolutionary. They included things like the extension of American truck tariff rates, the expansion of Korean vehicle quotas, the introduction of quotas for Korean steel products, and new obligations with respect to currency manipulation.53 In most cases, however, the changes were primarily of symbolic value. For example, the current total number of US cars exported to Korea is less than the quota, and the currency manipulation obligations are quite weak and include no enforcement mechanism.54 Trump has also taken a more aggressive approach to economic relations with China. Initially, the Trump administration adopted a rather soft stance, most probably motivated by geopolitical considerations related to the possible engagement of China in resolving the nuclear crisis on the Korean peninsula. At the

50

The text of the agreement is available at Office of the United States Trade Representative, United States-Mexico-Canada Agreement, https://ustr.gov/trade-agreements/free-tradeagreements/united-states-mexico-canada-agreement/agreement-between, accessed 28 March 2019. 51 J Murphy and N Sherman, USMCA trade deal: Who gets what from ‘new Nafta’?, BBC, 1 October 2018, https://www.bbc.com/news/world-us-canada-45674261, accessed 28 March 2019. 52 It seems that the Trump Administration was eager to deliver a deal that could be presented as a victory (and fulfillment of one of the electoral promises). The content of the deal was apparently less important. Since trade between the US and Korea is much smaller than intra-NAFTA trade, it was also easier, from a political and technical point of view, to conclude the agreement. 53 S Lester, The First Trump Trade Deal: The KORUS Renegotiation May Be Complete, International Economic Law and Policy Blog, 26 March 2018, http://worldtradelaw.typepad.com/ ielpblog/2018/03/the-first-trump-trade-deal-the-korus-renegotiation-may-be-complete.html, accessed 28 March 2019. 54 International Centre for Trade and Sustainable Development, South Korea, U.S. Clinch Agreement in Principle to Update KORUS Trade Pact, Bridges, 29 March 2018, https://www.ictsd. org/bridges-news/bridges/news/south-korea-us-clinch-agreement-in-principle-to-update-korus-tradepact, accessed 28 March 2019; AF Campbell, Trump’s new trade deal with South Korea, explained, Vox, 24 September 2018, https://www.vox.com/2018/9/24/17883506/trump-korea-trade-deal-korus, accessed 28 March 2019.

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beginning of 2018, however, the US President imposed a series of tariffs55 on products such as solar panels, large washing machines,56 steel, and aluminum.57 Although the tariffs generally apply to products originating in any country, their structure and the mode of application demonstrate that they were predominantly directed at China. China is the world’s largest producer of solar panels, and also has a considerable excess of steel and aluminum capacity and exports part of its output surplus to the US. At the same time, other major US trading partners (Australia, Argentina, Brazil, South Korea and the EU) were granted temporary or permanent exemptions from the steel and aluminum tariffs.58 China’s response to these measures was twofold. First, it filed an official complaint with the WTO concerning the additional US tariffs on steel and aluminum.59 Second, it decided to take rebalancing measures under the Agreement on Safeguards without waiting for a WTO decision, and raised tariffs by 15–25% on selected American goods such as fresh fruit, pork, and wine.60 The Trump administration nevertheless continued its course of action. In March 2018, it announced plans to introduce cross-sectoral tariffs of 25% on various Chinese goods, including technology, transport and medical products.61 These new tariffs were implemented in July and August 2018, and affected $50 billion per year of Chinese exports to the US. The measure was officially justified as a response to various Chinese industrial policies that harm American intellectual property rights,

55 Legally speaking, tariffs on solar panels and large washing machines were introduced as safeguard measures, while additional tariffs on steel and aluminum were introduced under the GATT’s national security exception. 56 Proclamation 9694 of January 23, 2018 To Facilitate Positive Adjustment to Competition from Imports of Large Residential Washers, 83 FR 3553; Proclamation 9693 of January 23, 2018 To Facilitate Positive Adjustment to Competition from Imports of Certain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled into Other Products) and for Other Purposes, 83 FR 3541. 57 Proclamation 9705 of March 8, 2018 Adjusting Imports of Steel into the United States, 83 FR 11625; Proclamation 9704 of March 8, 2018 Adjusting Imports of Aluminum into the United States, 83 FR 11619. The use of the security exception makes it easier to grant the exception to NATO members and other American military allies. 58 See, e.g., Proclamation 9711 of March 22, 2018, Adjusting Imports of Steel into the United States, 83 FR 13361. Note, however, that eventually the EU, Canada and Mexico were subjected to the steel and aluminum tariffs as well (starting as of 31 May 2018). 59 United States – Certain Measures on Steel and Aluminium Products, Request for consultations by China, WT/DS544/1, the current status of the request is available at https://www.wto.org/ english/tratop_e/dispu_e/cases_e/ds544_e.htm, accessed 28 March 2019. 60 A Kaja et al., China Raises Tariffs on 128 U.S. Imports in Retaliation for U.S. Section 232 Steel and Aluminum Tariffs, Global Policy Watch, 3 April 2018, https://www.globalpolicywatch. com/2018/04/china-raises-tariffs-on-128-u-s-imports-in-retaliation-for-u-s-section-232-steel-andaluminum-tariffs/, accessed 28 March 2019. 61 Office of the United States Trade Representative, Notice of Determination and Request for Public Comment Concerning Proposed Determination of Action Pursuant to Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, Docket No. USTR-2018-0005, 20 June 2018.

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innovation, or technology development. In parallel, the US filed a complaint with the WTO concerning China’s intellectual property rules.62 In April 2018, Trump directed the USTR to identify additional categories of goods (valued at $100 billion) to which tariffs may be applied. This time the contemplated measure was presented as a response to China’s retaliation against the earlier US trade actions.63 In July 2018, the value of Chinese products considered for additional duties of 10% was increased to $200 billion,64 and it is expected that these tariffs will enter into force in autumn 2018. Trump also opened several battle lines within the framework of the WTO. First, the US’s imposition of tariffs on steel and aluminum is troublesome because of the administration’s claim that its actions are justified on the basis of national security concerns. This claim forces the WTO dispute settlement body that will hear China’s complaint to choose between Scylla and Charybdis: either concluding that national security claims are unreviewable or risking political backlash for second-guessing a national security policy decision.65 Second, and more seriously, the decision to impose cross-sectoral tariffs on Chinese goods poses a more existential threat to the organization. By relying on brute political force rather than the rule-based international trade system, Trump’s administration undermines the credibility and legitimacy of the WTO as a mechanism for resolving international trade disputes. Third, the US government has also been waging a quiet war against the WTO dispute settlement system. For some time, the Trump administration has been blocking the election of new members of the Appellate Body—the highest WTO quasi-judicial organ. The Appellate Body consists of seven members who decide individual cases sitting in three-person benches. Currently, there are only three appointed members, and four seats remain unfilled.66 The lack of Appellate Body members has already led to delays in the consideration of appeals. If the situation

China – Certain Measures Concerning the Protection of Intellectual Property Rights, Request for consultations by the United States, WT/DS542/1, the current status of the request is available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds542_e.htm, accessed 28 March 2019. 63 S Holland and D Lawder, Trade dispute escalates as Trump threatens $100 billion more in China tariffs, Reuters, 5 April 2018, https://www.reuters.com/article/us-usa-trade-china/tradedispute-escalates-as-trump-threatens-100-billion-more-in-china-tariffs-idUSKCN1HC1RW, accessed 28 March 2019. 64 Office of the United States Trade Representative, Statement by U.S. Trade Representative Robert Lighthizer on Section 301 Action, https://ustr.gov/about-us/policy-offices/press-office/ press-releases/2018/july/statement-us-trade-representative, accessed 28 March 2019. 65 See generally Yoo and Ahn 2016. 66 The terms of Appellate Body Members Ricardo Ramirez-Hernandez (Mexico) and Peter Van den Bossche (Belgium) ended in June and December 2017, respectively, while Kim Hyun-chong (South Korea) resigned in July 2017 in order to take up the post of Minister of Commerce in his home state. The term of office of Shree Baboo Chekitan Servansing (Mauritius) expired on 30 September 2018. 62

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remains unresolved by 2019, when the terms of office of two of the members expire, the Appellate Body will be completely paralyzed, as the one remaining member will be unable to form a three-person bench. The motives behind the US’s strategy are not entirely clear. Initially, US officials claimed that their decision was prompted by what they termed ‘procedural irregularities’ in a dispute between the European Union and Indonesia regarding anti-dumping measures imposed on fatty alcohols, as the Appellate Body’s decision in that case was signed by two members whose terms had already expired.67 Since then, however, additional explanations have been offered. First, the Trump administration seems to be concerned with alleged ‘judicial activism’ by the Appellate Body (e.g. going beyond the language of the WTO agreements and extensively applying teleological interpretation).68 Second, some have suggested that the US is using the appointment issue as leverage to attain a separate goal: regaining a veto right over the decisions of the Dispute Settlement Body.69 Such a change would mean a return to pre-1994 practice, when the adoption of decisions by the then-existing General Agreement on Tariffs and Trade (GATT) Panels required the consent of all GATT parties, including the party which lost a particular proceeding.70 The above analysis clearly illustrates that Trump rejects—both at the level of his rhetoric and actions—the current globalist neoliberal vision of international trade relations. At the same time, as the next section will show, he has not rejected neoliberalism as a whole, but merely reframed it in accordance with a competitive, rather than cooperative, worldview based on his own understanding of US national interest, while pursuing classical neoliberal macroeconomic policies at the domestic level: a stance we refer to as ‘neoliberal populism’.

67 U.S. Mission Geneva, Statements by the United States at the Meeting of the WTO Dispute Settlement Body, Geneva, 31 August 2017, https://geneva.usmission.gov/wp-content/uploads/ sites/290/Aug15.DSB_.Stmt_.as-delivered.fin_.public.pdf, accessed 28 March 2019. Note that the rules of procedure for appellate review provide that Appellate Body members may complete the appeals they have been assigned even after their terms expire. 68 Center for Strategic and International Studies, U.S. Trade Policy Priorities: Robert Lighthizer, United States Trade Representative, 18 September 2017, https://csis-prod.s3.amazonaws.com/s3fspublic/publication/170918_U.S._Trade_Policy_Priorities_Robert_Lighthizer_transcript.pdf? kYkVT9pyKE.PK.utw_u0QVoewnVi2j5L, accessed 28 March 2019. Ambassador Lighthizer particularly mentioned the WTO dumping and countervailing-duty cases. 69 Ibid. 70 For additional details see M Elsig et al., Trump is fighting an open war on trade. His stealth war on trade may be even more important, The Washington Post, 27 September 2017, https://www. washingtonpost.com/news/monkey-cage/wp/2017/09/27/trump-is-fighting-an-open-war-on-tradehis-stealth-war-on-trade-may-be-even-more-important/?noredirect=on&utm_term=.a4107fbc62f4, accessed 28 March 2019.

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Trump’s Neoliberal Populism

Trump’s trade narrative and subsequent actions presented his policies in populist terms as a conflict between two antagonistic groups: the ‘elites’ (both American and global) and ‘ordinary people’. At the same time, he has always remained ambiguous as to who exactly belongs to those two categories. On the one hand, he would sometimes refer, when talking about ‘the people’, to industrial workers, the ‘middle class’, small business owners, or more generally American ‘taxpayers’. This amorphous ‘people’ constitute a majority of American society, but remain silent, deprived by the ‘elites’ of a voice in public debate.71 By contrast, Trump has constructed the ‘elite’ as including (again not surprisingly) his political opponents (his competitors in the Republican primaries as well as Hillary Clinton), politicians in general, previous White House administrations (from both the Republican and Democratic sides), wealthy people, and Wall Street funders. Trump also deployed such vague terms as ‘special interests’, ‘insiders’ or ‘them’. He has portrayed himself as standing on the side of ‘ordinary people’ in the conflict—despite the fact that he himself is a billionaire real estate mogul—and as representing their general will (volonté générale). In Trump’s political narrative, ‘the people’ are not only morally superior (e.g. hard working, decent and honest) but also epistemologically superior to the ‘elites’. A couple of examples may serve to illustrate these points. In one speech Trump claimed that ‘Hillary Clinton unleashed a trade war against the American worker when she supported one terrible trade deal after another—from NAFTA to China to South Korea,’ and added that ‘a Trump administration will end that war by getting a fair deal for the American people. The era of economic surrender will finally be over.’72 In the context of the TPP, after stating that the agreement would be disadvantageous for American businesses, workers, and taxpayers, Trump added that ‘[i]t’s a huge set of hand outs for a few insiders that don’t even care about our great,

71

See Trump’s speech at the rally in Phoenix, Arizona on 11 July 2015, YouTube, Trump mentions the “Silent Majority”, 19 July 2015, https://www.youtube.com/watch?v=zmhiju9SB_Q, accessed 28 March 2019; see also N Fandos, Donald Trump Defiantly Rallies a New ‘Silent Majority’ in a Visit to Arizona, The New York Times, 11 July 2015, https://www.nytimes.com/ 2015/07/12/us/politics/donald-trump-defiantly-rallies-a-new-silent-majority-in-a-visit-to-arizona. html, accessed 28 March 2019. The ‘silent majority’ phrasing relates to the Richard Nixon’s famous reference in 1969 to the ‘silent majority’ of conservative Americans who did not join in the protests against the Vietnam war or participate in the counter-culture, and had therefore not had an active voice in political debates. On the revival of this theme by contemporary US populists, see MD Lassiter, Who Speaks for the Silent Majority?, The New York Times, 2 November 2011, https://www.nytimes.com/2011/11/03/opinion/populism-and-the-silent-majority.html, accessed 28 March 2019. 72 See the transcript of Trump’s speech in Monessen, Pennsylvania on 28 June 2016, Time, Read Donald Trump’s Speech on Trade, 28 June 2016, http://time.com/4386335/donald-trump-tradespeech-transcript/, accessed 28 March 2019 (emphasis added).

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great America.’73 He repeated this idea many times, frequently stressing that there was a small group of ‘insider elites’ that would benefit from the agreement at the expense of the American ‘people’. In his famous speech in Monessen, Pennsylvania, Trump explained that ‘[t]he Trans-Pacific Partnership is another disaster done and pushed by special interests who want to rape our country—just a continuing rape of our country’74 and added that ‘this is done by wealthy people that want to take advantage of us and that want to assign another partnership.’75 He also stated that the TPP would undermine American sovereignty as it envisaged ‘a new international commission that makes decisions the American people are no longer given the right to veto. These commissions are great for Hillary [Clinton]’s Wall Street funders who can spend vast amounts of money to influence (…) the outcomes.’76 After signing the decision to withdraw from the TPP, Trump declared: ‘Everyone knows what that means, right? We’ve been talking about this for a long time. It’s a great thing for the American worker.’77 In the Monessen speech, Trump also stressed that [American] workers’ loyalty was repaid (…) with total betrayal. Our politicians have aggressively pursued a policy of globalization, moving our jobs, our wealth and our factories to Mexico and overseas. Globalization has made the financial elite, who donate to politicians, very, very wealthy. I used to be one of them.’78

He added in this context: I want you to imagine how much better our future can be if we declare independence from the elites who led us from one financial and foreign policy disaster to another. Our friends in Britain recently voted to take back control of their economy, politics and borders. I was on the right side of that issue, as you know, with the people. I was there (…) While Hillary, as always, stood with the elites.79

73 A Pappas, Donald Trump To Blast Obama Trade Pact in Radio Ads: ‘A Bad, Bad Deal’, The Daily Caller, 6 May 2015, https://dailycaller.com/2015/05/06/donald-trump-to-blast-obama-tradepact-in-radio-ads-a-bad-bad-deal/, accessed 28 March 2019 (emphasis added). 74 SA Miller, Trump vows to cancel Asia trade deal as president – and puts NAFTA on notice, The Washington Times, 28 June 2016, https://www.washingtontimes.com/news/2016/jun/28/ donald-trump-vows-to-cancel-trans-pacific-partners/, accessed 28 March 2019 (emphasis added). 75 N Rojas, Donald Trump calls Trans-Pacific Partnership trade deal ‘a rape of our country’, International Business Times, 29 July 2016, https://www.ibtimes.co.uk/donald-trump-calls-transpacific-partnership-trade-deal-rape-our-country-1567944, accessed 2 April 2019 (emphasis added). 76 See the transcript of Trump’s speech in Monessen, Pennsylvania on 28 June 2016, Time, Read Donald Trump’s Speech on Trade, 28 June 2016, http://time.com/4386335/donald-trump-tradespeech-transcript/, accessed 28 March 2019 (emphasis added). 77 D Smith, Trump withdraws from Trans-Pacific Partnership amid flurry of orders, The Guardian, 23 January 2017, https://www.theguardian.com/us-news/2017/jan/23/donald-trump-first-orderstrans-pacific-partnership-tpp, accessed 28 March 2019 (emphasis added). 78 See the transcript of Trump’s speech in Monessen, Pennsylvania on 28 June 2016, Time, Read Donald Trump’s Speech on Trade, 28 June 2016, http://time.com/4386335/donald-trump-tradespeech-transcript/, accessed 28 March 2019 (emphasis added). 79 Ibid. (emphasis added).

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In an opinion piece published in the Wall Street Journal, Trump wrote: The only antidote to decades of ruinous rule by a small handful of elites is a bold infusion of popular will. On every major issue affecting this country, the people are right and the governing elite are wrong. The elites are wrong on (…) trade (…).80

Trump’s populist language on international trade relations seeks to instrumentalize dissatisfaction with economic globalization. He presents globalization—part of which has involved the liberalization of international trade and investment flows —as a project designed and supervised by international ‘elites’ that marginalizes both nation states and ‘ordinary people’. In this context, he appeals to those who have been ‘left behind’ by globalization, technological changes, and other economic developments. Against ‘elite’-driven open-market policies, Trump advances protectionist and retaliatory measures that claim to promote the ‘authentic’ needs of ‘the people’, and ‘take back control’ over their economic destiny in a competitive global market. Trump has pursued these goals, as Sect. 2.3 demonstrates, by taking unilateral trade actions against other countries, pulling back from previously agreed trade deals, undermining the legitimacy and threatening the existence of international organizations and invoking the US’s interest in ‘fair’ trade agreements that are beneficial to Americans. These policies have raised an outcry among those who were taught that the benefits of cooperatively-governed liberalized international markets are irrefutable. As discussed in Sect. 2.2, trade and economic liberalization are generally regarded in the literature as ‘common sense’ positions questioned only by ‘radicals’ or the economically illiterate, and the globalist neoliberal position has been that these goals can be achieved only through cooperation in the international sphere. In this vein, Trump’s withdrawal from the TPP and decision to freeze the TTIP talks, his renegotiation of NAFTA, and trade policy towards China have been decried by both left- and right-of-center politicians as going against the policy advice of ‘economic experts’, such as the Peterson Institute for International Economics,81 the Brookings Institute,82 the Progressive Policy Institute,83 and many others. His policies have been denounced

80 DJ Trump, Let Me Ask America a Question, The Wall Street Journal, 14 April 2016, https:// www.wsj.com/articles/let-me-ask-america-a-question-1460675882, accessed 28 March 2019 (emphasis added). 81 Petri and Plummer 2016. 82 JP Meltzer, The Trans-Pacific Partnership is a win for all parties, Brookings Institute, 9 December 2015, https://brook.gs/2g0nAxR, accessed 28 March 2019. 83 E Gerwin, The Trans-Pacific Partnership and Small Business: Boosting Exports and Inclusive Growth, Progressive Policy Institute, 20 November 2015, http://www.progressivepolicy.org/ issues/economy/the-trans-pacific-partnership-and-small-business-boosting-exports-and-inclusivegrowth/, accessed 28 March 2019.

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as ‘populist’ ‘political’ moves that aim at undoing ‘rare bipartisan initiative[s]’,84 as well as being ‘post-truth’ and based on ‘feelings’ rather than ‘facts’.85 Trump’s trade positions are thus decried because they run counter to the globalist neoliberal dogma according to which the purpose of government is to craft expert, scientifically- and economically-informed policy, which is best done from the perspective of the international market. This type of criticism reflects the current dominance of de-politicized managerialist governance techniques that evaluate the legitimacy of policy actions by reference to the metrics of efficiency, compliance, and cost-effectiveness, and that see a borderless world as desirable from the perspective of global economic management.86 Because Trump’s trade policies run counter to the expert-driven policy recommendations of economists, they are ridiculed by globalist neoliberals as ‘populist pandering’ that sacrifices the ‘truth’ in favor of ‘emotional’ appeals to an ignorant public. The derogatory use of the term ‘populist’ is thus directly related to the protectionist or nationalist elements of Trump’s program. Here, too, the content of the ‘populist’ agenda (in this case, protectionist trade policies) is defined in opposition to the dominant ‘elite’ paradigm (in this case, trade liberalization).87 However, the opposition between Trump’s populism and neoliberalism—so frequently highlighted in the public discourse88—is inaccurate. While Trump has indeed pulled back from global trade governance mechanisms, imposed (or threatened to impose) tariffs, and pushed for the renegotiation of trade arrangements in order to secure ‘better deals’ for the US, he has by no means rejected the broader tenets of neoliberal political reason. Rather, his policies aim to promote a free market-oriented neoliberalism within the country, while imposing competitive policies in the international market that clash with the cooperative globalist

84

L Mascaro, Obama’s Pacific trade deal becomes a surprising political casualty of 2016 campaign, Los Angeles Times, 27 July 2016, http://www.latimes.com/politics/la-na-pol-tpp-tradesetbacks-20160727-snap-story.html, accessed 28 March 2019. 85 The Economist, Yes, I’d Lie to You, 10 September 2016, https://www.economist.com/briefing/ 2016/09/10/yes-id-lie-to-you, accessed 28 March 2019. 86 Koskenniemi 2009, at 15. 87 Protectionism could just as easily have been the preferred policy of the ‘elite’, in which case the ‘populist’ position would be the pro-liberalization one. See, e.g., the statement of William Jennings Bryan, an important figure in the history of the American populism: ‘I believe that instead of preventing foreign countries from deluging us with something which they can sell us cheaper than we can produce it, we had better let the flood come.’ (WJ Bryan, Extracts from his speeches in the House of Representatives, 1892–1894, https://babel.hathitrust.org/cgi/pt?id=mdp.39015068324618;view= 1up;seq=3, accessed 8 April 2019, at 5). 88 See, e.g., Gusterson 2017. See also L Elliott, Populism is the result of global economic failure, The Guardian, 26 March 2017, https://www.theguardian.com/business/2017/mar/26/populism-isthe-result-of-global-economic-failure, accessed 15 October 2018; N Klein, see n 2 above; Judis 2016, at 35–55; The Economist, The new political divide, 30 July 2016, https://www.economist. com/leaders/2016/07/30/the-new-political-divide, accessed 28 March 2019.

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neoliberalism of the centrist ‘elite’. Trump’s victory is not a sign of the victory of ‘the people’ over neoliberalism, but rather of opposition to the internationalism of the globalist neoliberal political platform. Trump’s pro-free market nationalist policies form part of an alternative neoliberal discourse that some scholars have begun to refer to as ‘neoliberal populism’.89 Martijn Konings insightfully explains neoliberal populism as a political movement that marries support for neoliberal economic policies with an affective commitment to moral renewal based on a rejection of state paternalism and an embrace of strength and discipline.90 The neoliberal populist ideal is ‘a political order that enshrines autonomy as the highest good and fosters an individualism that is responsible and accountable.’91 In an analysis of former US President Ronald Reagan’s tenure in office, Matt Guardino described the domestic neoliberal populist agenda as follows: Neoliberal populism promotes pro-corporate and upwardly redistributive policies by connecting private market prerogatives and individualist identities to a populist construction of the interests and preferences of ‘ordinary Americans.’ Neoliberal-populist discourse defines ‘the people’ as rugged individuals registering righteous political demands for tax, spending and regulatory policies represented as embodiments of the ‘free market’.92

While it may seem paradoxical that these policies can be ‘populist’ while simultaneously benefiting ‘business elites’ at the expense of ‘ordinary people’, they are in reality perfectly compatible with neoliberal populist logic. Far from hoodwinking a gullible populace by cloaking a pro-business agenda in terms of traditionalist values (a popular explanation for Trump’s success in progressive circles), neoliberal populist rhetoric aligns the rugged individualism and stern moralism of the conservative social vision with the rough and tumble ideal of the competitive marketplace. In the market as in the home, the neoliberal populist sees austerity and hard work as the building blocks of moral and economic success.93 Paternalistic coddling and ‘elite’-driven cronyism are the twin enemies of this movement, which emphasizes that individuals should stand or fall based on their personal merits, not government support or personal favors. Trump’s domestic economic policies follow this line. At home, Trump has consistently championed a ‘pro-business’, anti-tax, anti-regulatory economic agenda that redefines the role of the government in wealth distribution, education and welfare. His administration has undertaken a number of deregulation initiatives that are intended to improve the business environment in line with Trump’s famous promise to introduce ‘a requirement that for every new federal regulation, two existing

89 90 91 92 93

See, e.g., Konings 2012; Guardino 2018. Konings 2012, at 617. Ibid. Guardino 2018, at 2. Konings 2012, at 612.

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regulations must be eliminated.’94 In practice,95 the challenged regulations range from environmental protection rules (e.g. the proposed repeal of Obama’s Clean Power Plan that aims at limiting the carbon dioxide emissions from power plants96) through work safety standards (e.g. delaying certain rules protecting workers from exposure to harmful substances97) and consumer protection (e.g. deregulation of internet service providers, including internet privacy rules) to controls on the energy industry (e.g. rolling back anti-corruption rules for energy companies98) and the financial industry (e.g. scaling back the Dodd-Frank Act, which was adopted in response to the 2008 financial crisis99). Another important initiative was the, so far unsuccessful, attempt to repeal the Affordable Care Act (popularly known as Obamacare100) and replace it with a new market-orientated system that would more heavily rely on individual responsibility and so-called ‘health savings accounts’. While limiting interventions by the state in various socio-economic spheres, Trump has also shifted his attention (and funding) to traditional functions of the government such as national defense101 and domestic and border security.102 This has been done at the expense of social programs run by the federal government, such as Medicare, Medicaid, food stamps, and disability reintegration schemes. Government agencies such as the Environmental Protection Agency and the US Department of Labor, and

94 DJ Trump, Donald J. Trump Contract with the American Voter https://assets.donaldjtrump. com/CONTRACT_FOR_THE_VOTER.pdf, accessed 28 March 2019. 95 An online tool that monitors various deregulation initiatives undertaken by the Trump administration can be found at the Brookings Institution, Brookings Deregulation Tracker, 18 October 2018, https://brook.gs/2JOnIuj, accessed 28 March 2019. 96 A full list of environmental regulations and policies that are on the Trump’s deregulatory agenda can be found at M Horn, 24 Environmental Rules Trump is Rolling Back, 23 August 2018, https://www.bna.com/24-environmental-rules-n73014482055/, accessed 28 March 2019. 97 C McNicholas et al., Workers’ health, safety, and pay are among the casualties of Trump’s war on regulations, Economic Policy Institute Report, 29 January 2018, https://www.epi.org/files/pdf/ 140919.pdf, accessed 28 March 2019. 98 S Fenton, Donald Trump removes anti-corruption rules for oil and gas companies, Independent, 15 February 2017, https://www.independent.co.uk/news/world/americas/us-politics/donald-trumpoil-gas-anti-corruption-remove-rules-deregulation-energy-industry-companies-a7581691.html, accessed 28 March 2019. 99 See, e.g., E Sherman, Congress just approved a bill to dismantle parts of the Dodd-Frank banking rule, NBC News, 23 May 2018, https://www.nbcnews.com/business/economy/congressjust-approved-bill-dismantle-parts-dodd-frank-banking-rule-n876516, accessed 28 March 2019. 100 In this context, it was argued in particular that Obamacare not only imposed overly high costs on business but also constituted an unwarranted intrusion into the affairs of private businesses and individuals. 101 LJ Korb, Trump’s Defense Budget, Center for American Progress, 28 February 2018, https:// www.americanprogress.org/issues/security/news/2018/02/28/447248/trumps-defense-budget/, accessed 28 March 2019. 102 The most famous initiative pursued by the Trump administration in the area of border security concerns the construction of a wall at the border between the US and Mexico. There are, however, a number of other border control policies and programs that have been implemented over the last three years.

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government-supported institutions like the National Science Foundation have also witnessed significant cuts in their funding.103 This agenda is firmly in line with the historical neoliberal populism of predecessors such as former US President Reagan,104 whose signature economic policies included significant tax cuts, reduced government spending on social welfare programs, and ‘trickle down’ theories of wealth production.105 Trump’s agenda is in this sense a typically neoliberal one, pursuing austerity-driven policies designed to create a market space in which homo economicus can pursue his or her self-interest-maximizing activities in relative freedom. Progressives have been quick to point out that these policies give Wall Street little to complain about (never mind the fact that the Wall Street funders were labelled as a part of the ‘elite’106); that Trump’s tax reforms provide large tax cuts for corporations and disproportionally benefit wealthy Americans at the expense of the middle class and low-income ‘taxpayers’ (the largest cuts as a share of income will go to taxpayers in the 95th to 99th percentiles of the income distribution);107 and that the elimination of Obamacare could potentially deprive many low-income Americans of health insurance. However, Trump’s attempts to eliminate paternalist policies like national health care support, free up the market by cutting taxes and removing red tape, and ‘drain the swamp’ of ‘corrupt elites’ all conform to the neoliberal populist worldview. That these policies will ultimately result in harder lives for working class Americans is beside the point—these same Americans will

103

See, e.g., D Matthews, Trump’s 2019 budget: what he cuts, how much he cuts, and why it matters, Vox, 12 February 2018, https://www.vox.com/policy-and-politics/2018/2/12/16996832/ trump-budget-2019-release-explained, accessed 28 March 2019. 104 Other notable examples of neoliberal populists include President Carlos Menem in Argentina (1989–1999), President Alberto Fujimori in Peru (1990–2000) and Prime Minister Recep Tayyip Erdoğan (2003–current) in Turkey. 105 ‘Trickle down’ refers, here, to policies that improve the spending and investing power of the financially better off under the theory that this will expand the economy as a whole and eventually create more wealth for everyone. See also Guardino 2018, at 8. 106 See, e.g., The Economist, Donald Trump’s Economic Policy Has Not Been as Bad as Expected, 13 January 2018, https://www.economist.com/united-states/2018/01/13/donald-trumpseconomic-policy-has-not-been-as-bad-as-expected, accessed 28 March 2019; D Bessner and M Sparke, Don’t Let His Trade Policy Fool You: Trump Is A Neoliberal, The Washington Post, 22 March 2017, https://www.washingtonpost.com/posteverything/wp/2017/03/22/dont-let-his-tradepolicy-fool-you-trump-is-a-neoliberal/?noredirect=on&utm_term=.def762fb1646, accessed 28 March 2019. 107 See Tax Policy Center, Distributional Analysis of the Conference Agreement for the Tax Cuts and Jobs Act, 18 December 2017, https://www.taxpolicycenter.org/publications/distributionalanalysis-conference-agreement-tax-cuts-and-jobs-act/full, accessed 28 March 2019. The Tax Cuts and Jobs Act (An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018, 131 Stat. 2054) was signed into law on 22 December 2017.

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ultimately either benefit from the ‘tough love’ of having to fend for themselves in the competitive arena of the market, or suffer the consequences of their moral and economic failure. In the international sphere, these demands for a renewal of popular sovereignty, autonomy, and individualism translate into policy preferences that re-center national interest and emphasize the value of competition over cooperation in capturing a greater share of global markets. As noted by Cozzolino, in Trump’s vision, international relations are marked ‘by endemic conflict, relative gains, insecurity and asymmetry, [and] self-sufficiency—rather than economic cooperation.’108 The distinction between the globalist neoliberal ‘elite’ and the nationalist neoliberal ‘people’ is focused, in the trade context, on the relative value of international governance via the WTO, regional trade agreements, and other cooperative arrangements—not on opposition to the market logic that underlies neoliberal political rationality. It is here that Trump and globalist neoliberals truly differ. On the international front, trade policy has become the central battle line between ‘the people’ and the ‘elites’ as constructed within neoliberal political rationality. Rather than toeing the globalist line regarding the ‘unarguable’ value of a cooperatively-governed international trading system, Trump has insisted on taking a ‘transactional’ and conflictual approach to global governance. As aptly articulated by Ambassador Lighthizer: [W]hat we’ve tended to see is that Americans look at the WTO or any of these trade agreements and we say, OK, this is a contract, and these are my rights. Others—Europeans, but others also—tend to think they’re sort of evolving kinds of governance. And there’s a very different idea between these two things.109

Trump’s vision differs from that of globalist ‘elites’ primarily with respect to the scope of its vision: while his neoliberal opponents take as their starting point the promotion of the interests of global capital expansion, Trump’s neoliberalism is decidedly nationalist, focusing on the promotion of US interests within a competitive international market. As summarized by Trump himself in his 2018 address to the United Nations General Assembly: ‘We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy. America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism.’110

108

Cozzolino 2018, at 54. Center for Strategic and International Studies, U.S. Trade Policy Priorities: Robert Lighthizer, United States Trade Representative, 18 September 2018, https://www.csis.org/analysis/us-tradepolicy-priorities-robert-lighthizer-united-states-trade-representative, accessed 28 March 2019. 110 A Ward, Trump’s speech to the UN General Assembly, Vox, 25 September 2018, https:// www.vox.com/2018/9/25/17901082/trump-un-2018-speech-full-text, accessed 28 March 2019. 109

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Conclusion

As the above analysis shows, Trump does not reject neoliberal political rationality. Like other neoliberals, he emphasizes the market as a site of veridiction and its health as the primary legitimating factor of domestic policy. Like other neoliberals, he takes for granted the figure of the individual as a homo economicus who is best left alone to pursue his or her own interests, and is responsible for his or her own success or failure within a marketized private sphere. And like other neoliberals, he sees the international sphere as a paradigmatic market space governed by the same rules as the business sphere. Where Trump and his opponents part ways is that, while globalist neoliberals are focused on creating a global system in which individual firms can compete on a ‘level playing field’ in order to maximize total aggregate welfare, Trump is focused on the United States as a competitor within that global market—one that can get ‘bad deals’, should use its leverage to extract concessions where it can, and should put its own interests ahead of any broader notions of systemic health. Trump is therefore not the enemy of neoliberalism—he is merely its populist face.

References Albertazzi D, McDonnell D (2008) Introduction: The Sceptre and the Spectre. In: Albertazzi D, McDonnell D (eds) Twenty-first Century Populism: The Spectre of Western European Democracy. Palgrave Macmillan, New York, 1–11 Brown W (2015) Undoing the Demos: Neoliberalism’s Stealth Revolution. Zone Books, New York Canovan M (1999) Trust the People! Populism and the Two Faces of Democracy. Political Studies 47:2–16 Cozzolino A (2018) Trumpism as Nationalist Neoliberalism. A Critical Enquiry into Donald Trump’s Political Economy. Interdisciplinary Political Studies 4(1): 47–73 Dean M (2010) Governmentality: Power and Rule in Modern Society, 2nd edn. Sage Publication Ltd, London Foucault M (2003) “Society Must Be Defended”: Lectures at the College de France, 1975–1976. Picador, New York Foucault M (2007) Security, Territory, Population: Lectures at the College de France, 1977–1978. Palgrave Macmillan, New York Foucault M (2008) The Birth of Biopolitics: Lectures at the College de France, 1978–1979. Palgrave Macmillan, New York Fraser M (2017) From Progressive Neoliberalism to Trump—and Beyond. American Affairs 1(4):46–64 Guardino M (2018) Neoliberal Populism as Hegemony: A Historical-Ideological Analysis of US Economic Policy Discourse. Critical Discourse Studies 15(5):444–462 Gusterson H (2017) From Brexit to Trump: Anthropology and the Rise of Nationalist Populism. American Ethnologist 44(2): 209–214 Harvey D (2005) A Brief History of Neoliberalism. Oxford University Press, Oxford

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Higgott R (2018) From Policy to Populism: Donald Trump’s Trade Policy in Global Context, Royal Institute Elcano Research Paper ARI 47/2018, http://www.realinstitutoelcano.org/wps/ wcm/connect/ae4e55bf-7b15-4798-8c43-9ad4e152b533/ARI47-2018-Higgot-From-policy-topopulism-Donald-Trumps-trade-policy-global-context.pdf?MOD=AJPERES&CACHEID= ae4e55bf-7b15-4798-8c43-9ad4e152b533. Accessed 15 October 2018 Inglehart RF, Norris P (2016) Trump, Brexit, and the Rise of Populism: Economic Have-Nots and Cultural Backlash. HKS Faculty Research Working Paper Series RWP16-026. https://research. hks.harvard.edu/publications/getFile.aspx?Id=1401. Accessed 23 October 2018 Judis JB (2016) The Populist Explosion: How the Great Recession Transformed American and European Politics. Columbia Global Reports, New York Judis JB, Teixeira R (2002) The Emerging Democratic Majority. Scribner, New York Konings M (2012) Imagined Double Movements: Progressive Thought and the Specter of Neoliberal Populism. Globalizations 9(4):609–622 Koskenniemi M (2009) The Politics of International Law – 20 Years Later. European Journal of International Law 20(1):7–19 Laclau E (2005) On Populist Reason. Verso, London Lawrence JC (2018) Governmentality in EU External Trade and Environment Policy: Between Rights and Market, Routledge, Oxford/New York Mudde C (2004) The Populist Zeitgeist. Government and Opposition 39(4):541–563 Petri PA, Plummer MG (2016) The Economic Effects of the Trans-Pacific Partnership: New Estimates. Peterson Institute for International Economics Working Paper 16-2. https://piie.com/ system/files/documents/wp16-2_0.pdf. Accessed 23 October 2018 Rose N, Miller P (1992) Political Power Beyond the State: Problematics of Government. The British Journal of Sociology 43(2):173–205 Shils E (1956) The Torment of Secrecy: The Background and Consequences of American Security Policies. Free Press, New York Solís M (2016) The Trans-Pacific Partnership: The Politics of Openness and Leadership in the Asia-Pacific. Brookings Asia Working Group Paper 6. https://www.brookings.edu/wp-content/ uploads/2016/10/fp_20161017_tpp_openness_leadership_final.pdf. Accessed 23 October 2018 Springer S, Birch K, MacLeavy J (eds) (2016) The Handbook of Neoliberalism. Routledge, New York Taggart P (2000) Populism. Open University Press, Buckingham Taggart P (2002) Populism and the Pathology of Representative Politics. In: Mény Y, Surel Y (eds) Democracies and the Populist Challenge. Palgrave, Basingstoke, 62–80 Ware A (2002) The United States: Populism as Political Strategy. In: Mény Y, Surel Y (eds) Democracies and the Populist Challenge. Palgrave, Basingstoke, 101–119 Westlind D (1996) The Politics of Popular Identity: Understanding Recent Populist Movements in Sweden and the United States. Lund University Press, Lund Wilson GK (2017) Brexit, Trump and the Special Relationship. The British Journal of Politics and International Relations 19(3):543–557 Yoo JY, Ahn D (2016) Security Exceptions in the WTO System: Bridge or Bottle-Neck for Trade and Security? Journal of International Economic Law 19(2):417–444

Chapter 3

Populist Paranoia and International Law Aaron Fichtelberg

Contents 3.1 Introduction........................................................................................................................ 3.2 A Genealogy of Populism in the USA ............................................................................. 3.3 Populism and International Relations ............................................................................... 3.4 The Constitution, Populism, and International Law......................................................... 3.5 Trumpian Populism and International Law ...................................................................... 3.6 Paranoia and International Law ........................................................................................ 3.7 Towards a Populist International Law? ............................................................................ References ..................................................................................................................................

46 49 50 52 55 59 63 65

Abstract This chapter examines American populism in relation to international law with a focus on the administration of Donald Trump. While populism has been a regular influence in American political life, it has not always been overtly hostile to international legal norms in the fashion of the present administration. Earlier forms of populism (such as those of William Jennings Bryant and George Wallace) opposed political and economic elites but were not overtly hostile to international norms. Rather, the current populist movement is not exclusively anti-elitist in the fashion of traditional populism but is rather better understood as a form of political paranoia. By defaulting to the posture that international laws are contrary to American interests, the Trump administration has effectively cast doubt on all international agreements and obligations that were not ratified by the president himself. Such a paranoid disposition better characterizes and explains the administration’s international legal

Aaron Fichtelberg is an Associate Professor in the Department of Sociology and Criminal Justice at the University of Delaware, Newark, DE, USA. A. Fichtelberg (&) Department of Sociology and Criminal Justice, University of Delaware, Newark, United States e-mail: afi[email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_3

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posture than does either traditional anti-elitist populism or traditional conservative realism and exceptionalism. Keywords Trump

3.1


USA
International law
Populism
Political paranoia

Introduction

Populism as a movement does not clearly map onto any conventional political ideology. In practice, populist leaders often combine policy ideas from every corner of the political field, showing a willingness to weld together manifestly incompatible policies, regardless of their intellectual pedigree or their general practicality. European populism, in both Western and Eastern Europe tends to dovetail with ethnic nationalism and a hostility towards immigration and European integration.1 Populism in Latin America on the other hand is often rooted in Marxism, with figures such as Nicholas Maduro, Evo Morales, Fernando Lugo, and of course Hugo Chavez basing their movements on a resistance to US-led imperialism and global corporate capitalism.2 Asian populism has found root in religious and ethnic movements in India (the so-called ‘Saffronization’ movement led by the Bharatiya Janata Party), anti-drug efforts (led by Rodrigo Duterte in the Philippines) and Maoist political theory. Ideologically, at least, there are few connections between these different populisms, though they all have been swept up in roughly the same zeitgeist – a rejection of professional politics and technocratic governance, and a visceral hostility to globalization and multiculturalism.3 According to recent scholarship on the subject, populism is best described as a ‘feeling’ or an ‘emotion’ with a few inchoate intuitions motivating it rather than a political ideology as such.4 In the view of these scholars, populism is only the latest form of an anti-ideological and anti-intellectual mass of sentiments searching for outlets and targets rather than a consistent theory about the mechanics and goals of the economy, the state, or the conduct of foreign policy.5 It is a ‘thin-centered ideology’ rooted in ‘taking politics to the people,’6 but beyond this there is little to

1 A Tartar, How the Populist Right Is Redrawing the Map of Europe, Bloomberg, 11 December 2017, https://www.bloomberg.com/graphics/2017-europe-populist-right/, accessed 14 March 2019. 2 Seligson 2007. 3 J Habermas, For a Democratic Polarisation: How To Pull The Ground From Under Right-wing Populism, Social Europe, 17 November 2016, https://www.socialeurope.eu/democraticpolarisation-pull-ground-right-wing-populism, accessed 14 March 2019. 4 Demertzis 2006; Rico et al. 2017, Mudde 2004. 5 J Goldberg, Trumpism is a Psychology, Not an Ideology, The National Review, 7 March 2018, https://www.nationalreview.com/2018/03/donald-trump-movement-psychology-not-ideology/, accessed 14 March 2019. 6 Canovan 2002.

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the populist agenda. This study will develop from this view and argue that populist movements are best characterized as a constellation of highly charged emotions rather than a coherent political ideology and extend it into an analysis of international law. Populism in the United States is no exception to this heterogeneity and unpredictability. The stunning victory of Donald Trump against both the mainstream of his own conservative Republican Party and then over Hillary Clinton and the Democratic Party has flummoxed partisans of both sides and has left political experts struggling to make sense of the new political landscape. This has understandably produced anxiety in both the political intelligentsia as well as among many ordinary Americans – not to mention concerns among leaders of foreign countries who struggle to chart a course in a newly volatile social order. The lack of a clear foreign policy agenda and Trump’s own erratic personality has made it tremendously difficult. In relation to international law, this becomes even more problematic as Trump’s erratic, ‘intuitive’ governing style and self-proclaimed ‘nationalism’ seem anathema to a norm-governed international order. In the first two years of his presidency, the list of international agreements that Trump or his subordinates have attacked, eviscerated, or simply ignored is striking. His administration has attacked or withdrawn from several multilateral trade agreements, including the North American Free Trade Agreement (NAFTA) and the negotiations for the Trans-Pacific Partnership (TPP), and security agreements, including the North Atlantic Treaty of 1949 (in particular Article 5). He has rejected the principles of the 1951 Refugee Convention in dealing with asylum seekers from the Middle East and Central America and in advocating torture as a form of interrogation, the principles of nearly every human rights agreement created since the end of the Second World War. He has suggested that the US Military could kill the families of terrorists regardless of their affiliation with the terrorists themselves, a flagrant violation of international humanitarian law as well as international criminal law.7 As Koh insightfully puts it, ‘The Trump approach [to international law] does not value concerted efforts to translate existing legal rules but rather claims that there are no rules that bind our conduct.’8 Trumpian populism has displayed a deep, abiding skepticism towards international law, both before and after the 2016 presidential election, a skepticism which has shaped a great deal of the administration’s foreign policy. While Trumpian populism is in many ways new, it is part of a long tradition of populist movements in the USA, movements with similar emotional underpinnings but which have expressed attitudes towards international politics and international law quite different from those of the Trump administration. The difference comes from the sentiments that mark Trumpian populism as distinct. Trump’s populism is best characterized by a politics of paranoia. Political paranoia has been a part of

A Ross, Donald Trump Says He’d ‘Take Out’ Terrorists’ Families, Time, 2 December 2015, http://time.com/4132368/donald-trump-isis-bombing/, accessed 14 March 2019. 8 Koh 2017, at 420. 7

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fringe politics in the USA for a long time, but Trump has fused it with other more traditional populist sentiments (an anti-elitism, and a hostility towards professional politics) to create a new political force that has resonated with the American electorate.9 The result of this novel paranoid populism is a new, radical attitude towards international law – the assumption that almost all international legal agreements are contrary to the interests of the United States and must be shown skepticism at best and outright hostility at worst. This sentiment has marked out the Trump administration’s international law agenda and understanding this agenda allows us to make sense of what would otherwise be counterintuitive aspects of US foreign policy. I will begin my analysis with a study of historical roots of populism in the United States and its attitudes towards international law. This will include a short discussion of the American constitution’s balance of elitist and populist impulses, wherein I will argue that the Constitution clearly tilted the scales of political power in favor of political elites in relation to international law. Then, it will turn to modern populism in the US, focusing primarily on Trump.10 There I will argue that, while there is a continuity between Trump’s populism and earlier incarnations of the movement, Trump’s primary novelty is his paranoid politics. By placing paranoia at the center of US foreign policy, the traditional ideologies of US foreign policy (exceptionalism, idealism, and realism) have been put aside and American international commitments are considered suspect at best, untenable at worst. Effectively, Trumpian paranoia undermines his country’s commitments to

9 R Hofstadter, The Paranoid Style in American Politics, Harper’s Magazine, November 1964, https://harpers.org/archive/1964/11/the-paranoid-style-in-american-politics/, accessed 14 March 2019. 10 The Trump administration is unique in US history insofar as its political agenda is highly dependent upon the personality and conduct of its idiosyncratic leader. As political observers have noted, this administration does not center on a political doctrine, ideology, or agenda but often chases the whims of its master (D Smith, How Trump captured the Republican party, The Guardian, 10 June 2018, https://www.theguardian.com/us-news/2018/jun/09/donald-trumprepublican-party, accessed 14 March 2019). This means that, throughout this analysis I will be using the term “Trump”, “Trumpian”, and “Trump” administration interchangeably. While there are significant principle-agent problems that develop in such a situation as policymakers seek to influence or undermine the President’s largely inchoate agenda, nonetheless this administration is a creature of its leader far more than most (J Cost, Trump Should Be a Better Boss, The National Review, 10 September 2018, https://www.nationalreview.com/2018/09/president-trump-shouldbe-better-boss-new-york-times-anonymous-op-ed/, accessed 14 March 2019). While structural forces shape the behavior of states, the personality of political leaders do too, particularly when the leader commands the deep loyalty of his party and her electoral grass roots (Birt 1993; Lasswell 1976) Fusing the administration, the state, and the predilections of their leader is essential to effectively understand the current state of US international legal policy, without oversimplifying the relationship between states, leaders, and international relations more broadly. At the end of the chapter, I will discuss the problems that such a close linkage between leadership and policy creates for the administration.

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international legal norms in a way that counters other values such as the national interest and the promotion of democratic values abroad. If this paranoid streak of Trumpian populism is not tamed or subverted by policymakers or the democratic public, international norms could be seriously compromised in the future.

3.2

A Genealogy of Populism in the USA

Throughout its historical instabilities and disruptions, at its core populism, ‘considers society to be ultimately separated into two homogeneous and antagonistic groups, “the pure people” versus “the corrupt elite”, and which argues that politics should be an expression of the volonté générale (general will) of the people.’11 In this vein, populism in the USA has developed as a reaction to the perceived power of cultural, political, and economic elites over the lives of ‘ordinary citizens’ coupled with a belief that ‘the people’ are better suited to address the nation’s social and economic concerns than corrupt elites or pompous, self-important experts. Beyond this core belief, however, there has been little substance inherent to populist thinking – American populism careens wildly to different positions on the ideological spectrum depending upon the issue – keeping in mind that ‘left’ and ‘right’ themselves have been moving targets as over time.12 As a result, this most experts on the subject agree that populism is fundamentally ‘a highly emotional and simplistic discourse that is directed at the “gut feelings” of the people.’13 This intellectual vacuity helps explain its striking variation in US history. The populist movement has taken several different forms over the course of US history: The first generation began with the so-called ‘Jacksonian era’ (during the 1820s and 1830s).14 This was followed by the agrarian populist movement spearhead by William Jennings Bryan at the end of the 19th Century and the beginning of the 20th. The pro-segregation populists led by Alabama governor George Wallace of the 1960s, and finally the present Trump era. Beyond their shared hostility to ‘elites’ they have held a variety of different views on domestic and foreign policy: Early populists such as Jackson expressed a hostility towards the centralization of economic power by the federal government during the so-called ‘Bank Wars’ of the 1820s and the allegedly elitist politics of President John Quincy Adams – including the so-called ‘corrupt bargain’ that allowed Adams to assume the presidency after the controversial 1824 election. Later populism at the 11

Mudde 2004, at 543. Fuchs and Klingemann 2014. 13 Mudde 2004, at 542. 14 There are several other figures that have populist elements including Theodore Roosevelt, Huey Long, and Father Charles Coughlin. This is primarily because Jackson, Bryan, Wallace, and Trump each represent a departure from the prevailing political ideologies of the time and in favor of an avowed anti-ideological populism. For a more in depth history of American populism see: Stirewalt 2018. 12

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end of the 19th Century, embodied in The US People’s Party (a.k.a. ‘the Populist Party’), emphasized the interests of agrarian classes against those of the urban industrial class – including important efforts to unify the country’s different and often antagonistic racial groups. Bryan (a congressman, presidential candidate and later Secretary of State) allied with the Populist Party to run for President as a Democrat in 1896, 1900, and 1908, in a series of elections that hinged on monetary policy and US imperialism.15 The pro-segregation movement in the US during the 1960s, most notably embodied in presidential candidate George Wallace, harnessed white resentment towards desegregation and the civil rights movement to run for President under the banner of the American Independent Party in 1964.16 Finally, of course, Donald Trump fused working class and rural white resentment with economic alienation into a successful bid for the presidency in 2016 under a Republican Party many of whose traditional values he either repudiated or openly mocked.17 The election of Trump did not come out of nowhere, it was in many ways the culmination of a long history of populist politics in the US.

3.3

Populism and International Relations

Throughout its varied history in the US, the differing populisms have stood in awkward relationships to foreign policy in general and international law in particular.18 By nature foreign policy is an elitist practice, in that diplomats and other foreign policy experts tend to be drawn from the wealthy, highly educated circles trained to understand the nuances of diplomacy and the complexities of global politics.19 Engaging in foreign policy usually requires a willingness to delve into arcane and complicated political situations and a nuanced understanding of foreign governments and societies. International law is particularly challenging because of its further specialization in a sometimes-arcane discourse carried out by an often cliquish and jet-setting clique of practitioners, Schachter’s ‘invisible college of international lawyers.’ (1977). International legal practice is often sequestered from both mainstream legal practice and foreign policy, occupying a niche subfield of a subfield. The anti-elitism that shapes the populist outlook has no natural relationship to any traditional school of international law or international relations. Further, foreign policy issues were, for the most part, far removed from the core populist concerns with domestic economic and social policy. 15

Hofstadter 1955. Lowndes 2005. 17 N French, Trump violates core conservative values, yet most conservatives still refuse to condemn him, The Washington Post, 13 October 2017, https://www.washingtonpost.com/news/ acts-of-faith/wp/2017/10/13/trump-violates-core-conservative-values-yet-most-conservatives-stillrefuse-to-condemn-him/?noredirect=on&utm_term=.04e2d1230f9c, accessed 14 March 2019. 18 Hadiz and Chryssogelos 2017. 19 Jacobs and Page 2005. 16

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It makes sense, then, that the various historical forms of populism in the US have expressed differing attitudes towards the nation’s international legal obligations to the extent that they’ve been thematized at all. International relations under the Jackson Administration were largely indistinct from other Presidents in the early 19th century vis-à-vis international law. The only noticeable exception was the forcible removal of the native tribes located in the southeast of the United States in blatant violation of various treaties conducted with these tribes living as well as the express orders of the US Supreme Court.20 Walter Russell Mead argues that these policies stem from a stark ingroup/outgroup distinction inherent in Jacksonianism: ‘Jacksonian society draws an important distinction between those who belong to the folk community and those who do not. Within that community, among those bound by the code and capable of discharging their responsibilities under it, Jacksonians are united in a social compact. Outside that compact is chaos and darkness.’21 This, in turn leads to a dark, emotive realism that leads to a militaristic foreign policy. ‘Given the moral gap between the folk community and the rest of the world… Jacksonians believe that international life is and will remain both anarchic and violent. The United States must be vigilant and strongly armed. Our diplomacy must be cunning, forceful and no more scrupulous than anybody else’s.’22 As a result of this, Of all the major currents in American society, Jacksonians have the least regard for international law and international institutions. They prefer the rule of custom to the written law, and that is as true in the international sphere as it is in personal relations at home. Jacksonians believe that there is an honor code in international life - as there was in clan warfare in the borderlands of England – and those who live by the code will be treated under it. But those who violate the code – who commit terrorist acts in peacetime, for example - forfeit its protection and deserve no consideration.23

While the Jacksonians may have been ‘dark realists’, many later American populists tended towards a principled isolationism, whatever their domestic policies. Bryan’s foreign policy agenda is best known for his attack on the US intervention in the Philippines in his ‘Imperialism: Flag of Empire’ speech. There he denounced the ‘gun-powder gospel’ of US foreign interventions.24 In 1914 as 20

Wiessner 1994. Mead 1999, at 14. 22 Ibid., at 18. It is worth noting that some observers of Donald Trump have seen strains of this form of Jacksonianism in both his domestic and foreign policy. (P Beinart, Trump’s Self-Pitying Aggression, The Atlantic, 19 May 2016, https://www.theatlantic.com/politics/archive/2016/05/thejacksonian-candidate/483563/, accessed 14 March 2019) Trump himself has spoken highly of Jackson (L Jacobson and S Waychoff, What’s up with Donald Trump and Andrew Jackson?, Politifact, 2 May 2017, https://www.politifact.com/truth-o-meter/article/2017/may/02/whats-upwith-donald-trump-andrew-jackson/, accessed 14 March 2019). 23 Mead 1999, at 18. 24 As Bryan put it in a different speech: “Imperialism would be profitable to the army contractors; it would be profitable to the ship-owners, who would carry live soldiers to the Philippines and bring dead soldiers back; it would be profitable to those who would seize upon the franchises, and it would be profitable to the officials whose salaries would be fixed here and paid over there; but to 21

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Secretary of State, Bryan negotiated a treaty of apology and indemnity with Colombia for the US seizure of Nicaragua during the so-called ‘Banana Wars’.25 The segregationist southerners of the mid-Twentieth Century supported similar isolationist policies: Wallace was very skeptical of US intervention in Vietnam and his admonishment of ‘free-rider’ nations who he believed were benefitting from American wartime sacrifice is similar to that of the Trump administration.26 Prior to the Trump administration, there has been only a limited and inconsistent engagement with issues of foreign policy and international law, foreshadowing the skepticism of the Trump administration.

3.4

The Constitution, Populism, and International Law

The founders of the US were cognizant of the dangers posed by the twin threats of populism and demagoguery and its constitution was consciously structured to both restrict and tame the populist impulses of the American people while still plausibly claiming to create a democratic institution.27 James Madison, one of the Constitution’s architects and chief advocates argued that in order to survive, a state must ‘obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.’28 The bicameral legislature, the often-maligned Electoral College set out in Article II of the Constitution,29 and the original structure of the senate (where Senators were elected by state legislatures rather than by the popular vote)30 were all intended to prevent what were perceived as the ill-informed masses from asserting excessive influence on US policy. Along with these structures, legislative voting restrictions, which had largely limited the voting public to white, the farmer, to the laboring man and to the vast majority of those engaged in other occupations it would bring expenditure without return and risk without reward.” Bryan’s notification speech of 1900 (Bryan and Bryan 1900, at 407). 25 Leuchtenburg 1952. 26 J Walker, One Candidate Had a Foreign Policy That Anticipated Trump’s, Reason: Hit & Run Blog, 30 August 2016, https://reason.com/blog/2016/08/30/trump-wallace-foreign-policy, accessed 14 March. 27 Hofstadter 1989. 28 Hamilton et al. 2014, paper no. 57. 29 “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” 30 Article I, Section 3 of the Constitution originally read, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” It was replaced in 1913 with the 17th Amendment which called for the direct election of Senators.

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property-owning men were meant to prevent those whose reason was at the time considered questionable (women, the poor, minorities) from participating overtly in the political process. The House of Representatives, conceived of as the more populist arm of the government, was designed with short periods service to ‘binding the representatives to their constituents’.31 Republican politics at the founding of the US government required leaders that were both in touch with the will of the public but simultaneously capable of opposing that will if it was in the long-term interests of the nation. This tension between the popular and the elitist wings of the US Constitution come to sharp relief in the arenas of foreign policy and international law. The popularly oriented House of Representatives has almost no role to play in foreign affairs generally and international law in particular. Article II of the US Constitutions leaves the signing and ratifying of treaties to the President and with the ‘advice and consent’ of the Senate.32 Article VI of the Constitution stipulates that, ‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.’ (Italics added) This ruling was bolstered by early US Supreme Court decisions, most notably the Paquette Habana case which clearly stated that, ‘International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.’33 Though the House of Representatives does play a role in foreign affairs34 as a part of the legislature, it has no role to play as an independent body in the field of international law in the fashion of both the Senate and the President. The President obviously has an essential role to play in creating, interpreting, and enforcing international law according to the Constitution, though she does not have the power unilaterally create norms or bind the state to extant international norms. As Jefferson put it, ‘The transaction of business with foreign nations is Executive altogether.’35 While the President is accountable to the American people, she is only accountable through elections every four years which were (at least in the inception of the Constitution) under the influence of the Electoral College an

31

Hamilton et al. 2014, paper no. 52. “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Article II, Section 2. 33 The Paquete Habana, 175 U.S. 677 (1900). 34 Article 1, Section 8 grants the Congress (all together) the rights to “regulate Commerce with foreign Nations”, “establish an uniform Rule of Naturalization,” “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”, “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” and “make Rules for the Government and Regulation of the land and naval Forces” – all of which could be construed as having international legal import. 35 Schlesinger 2004, at 14. 32

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institution intended as a bulwark against populist forces.36 As Amar put it, a popularly elected president (initially proposed by Pennsylvania delegate James Wilson) was rejected because ‘a populist Presidency was seen as dangerous – inviting demagoguery and possibly dictatorship as one man claimed to embody the Voice of the American People.’37 Though the President has the power to ‘make Treaties’ this power is restricted to the provision that ‘two thirds of the Senators present concur.’ (Article II, Section 2) She is further the ‘Commander in Chief of the Army and Navy of the United States’ (Article II, Section 2) which has significant legal responsibility, but little direct legislative power. Finally, the President has the power to receive ambassadors, which gives the President the authority to offer a de facto recognition to states. The Supreme Court, often described as the least democratic branch of the federal government, similarly plays an important role in relation to international law. As Koh put it, ‘The original design and early practice of our courts envisioned that they would not merely accept, but would actively pursue, an understanding and incorporation of international law standards out of a decent respect for the opinions of mankind.’38 The Court has authority over treaties and maritime and admiralty law (Article 3, Section 2), and the Court as the highest court in the land, has final say over the law which, according to the so-called ‘supremacy clause’ (Article VI, Section 3) constitutes one element of ‘supreme law of the land’.39 The courts are clearly part of the ‘elitist’ stream of the federal government: the public has no say in the makeup or the general function of the judiciary, whose members are chosen by the President with the ‘Advice and Consent of the Senate’. (Article II, Section 2) Since the Paquette Habana case, the Supreme Court has played a central role in defining and interpreting the US’s legal obligations, almost completely without input from the American people.40 Clearly, under the US Constitution as originally conceived, there was a strong sense that international law and international relations more broadly were not to be governed by the more populist-minded elements of the federal government. The House of Representatives has little say in the signing or ratifying of treaties or in almost any other foreign relations activity for that matter. Rather the institutions that “The immediate election [of the President] should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” (Hamilton et al. 2014, pp. 332–333) 37 Amar 1995, at 143–144. 38 Koh 2004, at 44. 39 “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 40 For a lengthy and important analysis of the theory behind the Supreme Court’s incorporation of international law into US law in the context of the Paquette Habana case, see Henkin (1984). 36

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were further removed from the populace by several stages (through state legislatures, the Electoral College, and presidential appointment) created international norms, ratified international agreements, and once these obligations were established, interpreted and applied them. The Senate, the more ‘elite’ of the two halves of the legislature has the power to ratify treaties by a 2/3 vote. That means that the Constitution’s elitist elements are designed to prevent international law from being dismissed or marginalized by the populist forces in the country. It should be kept in mind that the more elitist aspects of the Constitution have slowly eroded over time. While the Electoral College remains an important factor in the election of presidents (two of the last three Presidents, George W. Bush and Donald Trump did not win the popular vote in their first elections),41 other non-populist elements of the Constitution have either been wholly removed or lost their influence in governance. The popular election of Senators was brought in by the Seventeenth Amendment in 1914 which made the body much more responsive to the whims and the will of the public in their states (though their 6-year terms of office help buffer them from some of the short-term issues that affect representatives in the House). The Supreme Court, once considered the least political branch has become a highly political one as different movements have sought to use the power to appoint judges to their political advantage.42 As the Constitution has cast aside its elitist and putatively anti-democratic elements, its foreign policy and its attitude towards international law specifically have changed and left it at the mercy of broader cultural forces such as populism. The collapse of the elitist elements of the US Constitution along with the general rise of the so-called imperial presidency has undermined the elitism of international law in the US government.43

3.5

Trumpian Populism and International Law

Historically, international law has been marginal to populist politics in the USA. Jackson, Bryan, and their successors were largely consumed with either matters of civil rights or economic justice during their ascendency. The American role in the world and the legal norms that helped shape it were largely afterthoughts for these figures. As in so many other things Trump is different, however, and international law has been central to his vision of populist governance. This section will outline

41 The Electoral College has proven to be a toothless bulwark against populist forces – faithfully echoing the popular vote in the states they represent (M. Signer, The Electoral College Was Created to Stop Demagogues Like Trump, Time, 17 November 2016, http://time.com/4575119/ electoral-college-demagogues/, accessed 14 March 2019). 42 Greenburg 2008. 43 Schlesinger 2004. Also, it is important to keep in mind that the requirement that the President receive the consent of 2/3 of the Senate for a treaty has led the President to develop alternative sorts of agreements with foreign nations which are much weaker and subject to the whims of different presidents.

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the parameters of this Trumpian approach to international law and its emotive roots in political paranoia. The Trump administration has diverged from its predecessors in part because Trump himself has tied economic inequalities in the USA to the international trade agreements signed by preceding administrations. This worldview that has spilled over into other international legal obligations: since the commencement of Trump’s campaign in 2015, he has expressed a deep antipathy to many international agreements and a vaguely hostile indifference to others – generally describing them as ‘bad deals’ for the American people.44 He famously withdrew from the Paris Climate Agreement addendum to the United Nations Framework Convention on Climate Change45 in June 2017 which he described as ‘very unfair at the highest level to the United States.’46 The Trump administration has contemplated waging financial war on both the United Nations and the International Criminal Court, particularly after the appointment of John Bolton as the President’s National Security Advisor.47 He has condemned NAFTA and the TPP and undermined the WTO (see below). These are only a few places where the administration has been hostile to international law. Both before attaining office and while in the White House, Trump has attacked a host of multilateral arrangements in a variety of areas – many of which were signed under previous Republican administrations. Each of these moves has been justified by asserting that they are harmful to American interests in some (often vaguely defined) sense. There have been many places where the administration has been hostile to international human rights or humanitarian laws. Putting aside domestic politics where he has at times openly advocated violence against criminal defendants and members of the press while defending ethnic nationalists, it has been clear that President Trump has not considered human rights a priority in relations with other states. While campaigning, Trump spoke wistfully of reviving torture practices such as waterboarding and ‘a hell of a lot worse’ – practices which have been violations of international law for a significant amount of time.48 In June 2018, the administration abandoned the UN’s Human Rights Council over its criticisms of Israel’s policies in the Palestinian Territories. He has also expressed little to no concern

44 D Nedal and D Nexon, Trump Won’t Get the Best Deals, Foreign Affairs, 31 January 2017, https://www.foreignaffairs.com/articles/2017-01-31/trump-wont-get-best-deals, accessed 14 March 2019. 45 The White House, Statement by President Trump on the Paris Climate Accord, 1 June 2017, https://www.whitehouse.gov/briefings-statements/statement-president-trump-paris-climate-accord/, accessed 14 March 2019. 46 T Cama and D Henry, Trump: We are getting out of Paris climate deal, The Hill, 1 June 2017, https://thehill.com/policy/energy-environment/335955-trump-pulls-us-out-of-paris-climate-deal, accessed 14 March 2019. 47 Bellinger 2018. 48 de Wet 2004; J Risen and S Fink, Trump Said ‘Torture Works.’ An Echo is Feared Worldwide. The New York Times, 5 January 2017, https://www.nytimes.com/2017/01/05/us/politics/trumptorture-guantanamo.html, accessed 14 March 2019.

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about the human rights violations of allied leaders around the world, often going to great lengths to defend abuses of those leaders he considers beneficial to him personally or to the US. After credible allegations that the Saudi Arabian government assassinated the journalist Jamal Khashoggi, he tweeted that he ‘would prefer, if there is going to be some form of sanction or what we may determine to do, if anything … that we don’t use as retribution canceling $110bn worth of work, which means 600,000 jobs.’49 As a Washington Post editorial eloquently described the administration’s policies, human rights ‘are seen by the president not as universal principles demanding attention everywhere, but as cudgels to be rolled out selectively, to criticize tyrants and rights abusers when convenient, and to be easily ignored elsewhere.’50 In the field of national security, Trump has actively sought to reduce American overseas commitments, particularly those enshrined in multilateral agreements. He undermined the relations between the US and its NATO allies by showing tepid support for Article 551 of the North Atlantic Treaty during a 2017 European tour.52 In October 2018 the administration announced its intentions to withdraw from the Intermediate-Range Nuclear Forces Treaty initially negotiated by Ronald Reagan and Mikhail Gorbachev in 1987.53 On May 8, 2018, he announced that he would no longer comply with the requirements of the Joint Comprehensive Plan of Action (JCPOA) – the agreement between the Iranian government, the US, and European nations designed to restrict the capacity of the Iranian government to build nuclear weapons. While the JCPOA was not a legal document, it nonetheless is in line with the administration’s hostility towards any multilateral security arrangements.54 Perhaps the most notable divergence from its predecessors is the Trump administration’s posture towards global trade. The Trump administration has been

The Guardian, Donald Trump says he finds Saudi explanation of Khashoggi death ‘credible’, 20 October 2018, https://www.theguardian.com/world/2018/oct/20/donald-trump-says-he-findssaudi-explanation-of-khashoggi-death-credible, accessed 14 March 2019. 50 The Washington Post, Trump loves human rights – when convenient, 14 November 2017, https://www.washingtonpost.com/opinions/trump-loves-human-rights–when-convenient/2017/11/ 14/a1f360d8-c97e-11e7-b0cf-7689a9f2d84e_story.html?utm_term=.0acf8b876a74, accessed 14 March 2019. 51 “The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.” 52 R Gramer, Trump Discovers Article 5 After Disastrous NATO Visit, Foreign Policy, 9 June 2017, https://foreignpolicy.com/2017/06/09/trump-discovers-article-5-after-disastrous-nato-visitbrussels-visit-transatlantic-relationship-europe/, accessed 14 March 2019. 53 BBC News, President Trump to pull US from Russia missile treaty, 21 October 2018, https:// www.bbc.com/news/world-us-canada-45930206, accessed 14 March 2019. 54 Trump 2017. 49

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vocal about its opposition to almost all existing trade agreements, particularly multilateral ones. One of President Trump’s first major policy decisions was to withdraw from the negotiations for the TPP (‘Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement,’ 2017) – a comprehensive trade agreement between countries in Asia and the US.55 He has further threatened to leave the aforementioned NAFTA and has been engaged in a ham-handed effort to negotiate its replacement.56 These decisions, coupled with threatened tariffs on steel importation under a dubious ‘national security’ exception (in contradiction to the spirit of the General Agreement on Tariffs and Trade)57 along with his aggressive posture to international trade more generally express a narrowly construed conception of national interest. Regardless of the benefits that trade agreements may provide to the USA and to other parties’, they remain subject to withering criticism and continual threats of abandonment by the Trump administration. Eric Posner has sought to portray the Trump administration’s attitude towards international law as a part of Trump’s overall anti-elitist politics. According to Posner, Trump is giving the American international legal community a proverbial ‘thumb in the eye’ – destroying its naive faith that international law will ultimately diminish the nationalist impulses that created so much havoc in the Twentieth Century. As he put it: In promising to torture terrorists, ban Muslims, and use other harsh measures to protect American security, [President Trump] repudiated the human rights treaties and the laws of war. Although Trump has not—as far as I know—repeated traditional objections to the ICC, human rights treaties, and the like, it is hard to imagine that he will support them.58 The strength of anti-globalist sentiment, which took elites by surprise, and showed how out of touch they were with public opinion, also shows that the basic premise of the Invisible College—that people internalize international law—is questionable, to say the least. Nationalism is as strong as ever. International law is seen as instrumental, not as an end in itself. Courts defy these fundamental elements of political psychology at their peril.59

By promoting a robust view of the national sovereignty of the United States in contrast to the perceived ‘globalist’ values underlying international law, the Trump administration has annihilated the central premise of the international legal

55

P Baker, Trump Abandons Trans-Pacific Partnership, Obama’s Signature Trade Deal, The New York Times, 23 January 2017, https://www.nytimes.com/2017/01/23/us/politics/tpp-trump-tradenafta.html, accessed 14 March 2019. 56 A Swanson, Trump’s Tough Talk on Nafta Raises Prospect of Pact’s Demise, The New York Times, 11 October 2017, https://www.nytimes.com/2017/10/11/business/economy/nafta-trump. html, accessed 14 March 2019. 57 Irwin 2017. 58 Note: Since Posner’s article was published, Trump’s National Security Advisor, John Bolton has attacked the ICC. (O Bowcott et al., John Bolton threatens war crimes court with sanctions in virulent attack, The Guardian, 10 September 2018, https://www.theguardian.com/us-news/2018/ sep/10/john-bolton-castigate-icc-washington-speech, accessed 14 March 2019.) 59 Posner 2017, at 8.

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community: that transnational and global norms can provide a tool for taming the passions of nationalism and ethnic chauvinism in favor of a rule-governed global politics, and equally important, that the norms can be arranged to provide mutual benefit – be these economic, environmental or security benefits.

3.6

Paranoia and International Law

Trumpian populism has expressed a hostility to international law that is unparalleled in US history. Other administrations (arguably all recent administrations) have flagrantly violated either general principles of international law or specific agreements in some circumstances, but the breadth and depth of the Trump administration’s repudiation of international norms is unprecedented. Posner is correct that the administration is hostile to all elites, but populist anti-elitism and an aggressive nationalism by themselves are insufficient to explain Trump’s approach to international law. There have been nationalists in the White House and populist-oriented governments in American history that have not expressed such antipathy towards international norms. Indeed, as we saw, some of them promoted the values international law in one way or another. There must be some further explanatory factor to make sense of the radical divergence of the Trump administration on matters of international law. As I have already argued, the differences between the various populisms are not ideological or intellectual but rather emotional: they rely on a different pallet of sentiments to determine their priorities and policies. Beyond the prevailing anti-elitism, the distinction between the different populisms is largely emotive, and therefore the most significant psychological features of Trump’s populism and its impact on international law require such an emotive explanation. In this section I will seek to explain the unique dimensions of Trumpian populism and how they shape the administration’s approach to international law. While Trump shares anti-elitism with his populist predecessors, the additional element of paranoia helps us better understand Trump’s contribution to Trumpian international law. Following Robins and Post, we can define political paranoia as ‘a personality trait and a personality style characterized by a guardedness, suspiciousness, hypersensitivity, and isolation.’60 In their study of paranoid political leaders, the authors point to seven distinct features to the phenomenon: suspicion, centrality, grandiosity, hostility, fear of loss of autonomy, projection, and delusional thinking. I will briefly lay them out here: Suspicion. Suspicion (‘the sine qua non of paranoia’) is defined as a recalcitrant belief that things are not as they appear, regardless of the fact. ‘He searches continually for hidden meaning, for clues to the enemies he knows are out there.’61

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This requires that the paranoid leader exert great effort to dismiss facts that do not support his worldview. ‘With keen attention to detail, the paranoid interprets away (often with great ingenuity) facts that do not fit in with his delusions and seeks clues and ‘real meanings’ in every event and comment.’62 For the paranoid, the world is not as it seems or as it is presented to him by aids, advisors, experts, or the media. Centrality invokes the narcissistic feature of the paranoid leader from whom ‘everything has meaning in reference to him. Actions and comments that have nothing to do with him are taken as being directed to him.’63 Grandiosity refers to an excessive confidence that results in an unwillingness to entertain alternative points of view. ‘The paranoid’s certainty brooks no disagreement. He knows the truth and conveys a sense of contempt for those so foolish as to differ [from him].’64 Hostility. ‘The paranoid is belligerent and irritable, humorless and extremely sensitive to slight.’65 Fear of Loss of Autonomy. The paranoid politician ‘is constantly worried of attempts by a superior force or by outside individuals to impose their will on him, and he manifests an exaggerated independence.’66 Projection: Paranoid individuals, ‘Take unacceptable feelings and externalize them to the environment’67 such that they are perceived in others rather than in the paranoid himself. Delusional Thinking. A paranoid leader clings to ‘false beliefs held in the presence of strong contradictory evidence.’68 While a thorough analysis of the Trump administration in relation to these features would go beyond the scope of this chapter, it is clear that the Trump administration’s foreign policy has been shaped by many if not all of them. To cite a few examples: The Trump Administration (and President Trump himself) have denied the scientifically verified account of global warming in rejection the Paris Climate Change Agreement.69 The Administration has suggested that the murder of Jamal Khashoggi, widely believed to have been committed by a Saudi assassination squad, was in fact carried out by rogue operatives despite evidence uncovered by the administration’s own intelligence agency.70 When contradicted by officials in 62

Ibid. Ibid., at 9–10. 64 Ibid., at 10. 65 Ibid. 66 Ibid., at 11. 67 Ibid., at 12. 68 Ibid. 69 S Baragona, Trump Weighs In on Climate Change, Voice of America News, 5 December 2018, https://www.voanews.com/a/trump-weighs-in-on-climate-change/4687607.html, accessed 14 March 2019. 70 Aljazeera, Khashoggi murder: Trump says he stands by Saudi crown prince, 12 December 2018, https://www.aljazeera.com/news/2018/12/khashoggi-murder-trump-stands-saudi-crownprince-181212073639270.html, accessed 14 March 2019. 63

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his own government, Trump himself has openly attacked these people on social media and those who have presented countervailing views have often been drummed out of the administration.71 Terms like ‘fake news’ and ‘alternative facts’ have been deployed to dismiss inconvenient information that counters the prevailing understanding of global affairs within the administration. These policies do not simply represent political imprudence or a hard-nosed realism, but rather are indicative of deeper pathologies in the foreign policy of the administration. Two important caveats should be kept in mind in regards to Trumpian paranoia. First, political paranoia is not necessarily the same thing as an individual’s personal psychological paranoia. One could be a political paranoid and not necessarily be so outside of the political realm. Second, this argument about political paranoia is an examination of political activity and policy-formation rather than one regarding an individual’s personal beliefs. President Trump may purport to hold views in public that he may not hold personally, but he may understand that repudiating his supporters, many of which display their own paranoid mindsets, would weaken his political position. As Robins and Post argue, there is a complex interplay between a paranoid leader and his political supporters.72 Over the last 50 years, professional psychologists have rightly repudiated simplistic efforts to diagnose political leaders outside of a clinical context.73 The issue here is not whether Donald Trump is really paranoid in a medical sense, but rather whether his public actions, insofar as they shape US foreign policy and the country’s posture to international law, show signs of paranoia. While it touches all aspects of US foreign policy, such paranoia has specific consequences for international law. It entails that all international agreements, regardless of the parties involved (allies, rivals, enemies) are considered suspect at best, and an overt threat at worst. International agreements, particularly trade agreements, are largely considered an attempt to take advantage of the nation in some form or another. They are all ‘bad deals’, to use Trump’s own parlance. This paranoid condition, rooted historically in right-wing American politics, is the novel development of Trumpian populism, distinguishing it from its predecessors, and further helps us understand the administration’s overall approach to international law.74 It is not just that international laws are invalid if they do not promote American interests, but rather that they are assumed to be opposed to US interests unless directly proven otherwise. Regardless of the tangible or intangible benefits that any international agreement provides, they are suspect and liable to summary abandonment. The fact that international law binds states in a fashion that prevents them from pursuing what may be in their short term national interest links populist paranoia K Tumulty, President Trump isn’t a fan of dissent – inside or outside the government, The Washington Post, 1 February 2017, https://www.washingtonpost.com/politics/president-trumpseeks-to-quash-dissent-inside-the-government/2017/02/01/788bdefa-e7ed-11e6-b82f-687d6e6a3e7c_ story.html?noredirect=on&utm_term=.24b9d84455fc, accessed 14 March 2019. 72 Robins and Post 1997, at 95. 73 Appelbaum 2017. 74 R Hofstadter, The Paranoid Style in American Politics, Harper’s Magazine, November 1964, https://harpers.org/archive/1964/11/the-paranoid-style-in-american-politics/, accessed 14 March 2019. 71

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with nationalism. Nationalism is the belief that the nation-state is the foundation of values and is the primary locus of legitimate political loyalty places international law in doubt. Paranoia amplifies nationalism by casting a blanket suspicion on all international agreements. As he expressed his view in an April 2016 campaign speech: No country has ever prospered that failed to put its own interests first. Both our friends and enemies put their countries above ours and we, while being fair to them, must do the same. We will no longer surrender this country, or its people, to the false song of globalism. The nation-state remains the true foundation for happiness and harmony. I am skeptical of international unions that tie us up and bring America down, and will never enter America into any agreement that reduces our ability to control our own affairs.75

Trump’s skepticism of ‘international unions’ for the sake of short-term security and economic interest reflects a nationalist-fueled paranoia, as does his willingness to compromise human rights in order to benefit the American economy. By subverting rule-governed international politics in favor of a nationalist agenda pushed by a mercurial and at times flighty political leader, the Trump administration has directly challenged the assumptions of an international politics conducted under the rule of law. Thus, it is not simply nationalism, but a nationalist paranoia that shapes the administration’s approach to international law. In earlier Republican administrations, realist and exceptionalist theories were often used to criticize the relevance of international law for foreign policy.76 While these earlier strains of conservative thought have displayed skepticism towards treaties promoting human rights and restricting the use of force both Reagan and Bush (as well as almost all Presidents since the Second World War) have promoted international trade through multilateral trade agreements from the founding of the Bretton Woods system to the World Trade Organization and the development of the TPP. The Trump administration, on the other hand has rejected international trade

F Garcia, Transcript: Donald Trump unveils ‘America First’ foreign policy platform, The Independent, 27 April 2016, https://www.independent.co.uk/news/world/americas/transcriptdonald-trump-unveils-america-first-foreign-policy-platform-a7004301.html, accessed 14 March 2019. 76 It is worth noting that some observers have tried to portray Trump’s foreign policy as fundamentally realist in orientation (J Heilbrunn, Realism Is Back, Politico Magazine, September/October 2017, https:// www.politico.com/magazine/story/2017/09/05/trump-foreign-policy-realism-realpolitik-215536, accessed 14 March 2019; S M Walt, Has Trump Become A Realist?, Foreign Policy, 17 April 2018, https:// foreignpolicy.com/2018/04/17/has-trump-become-a-realist/, accessed 14 March 2019). While there are some similarities between Trump’s policies and realism (and some figures working within his administration are demonstrably “realists”), Trump’s repudiation of typically realist friendly institutions such as NATO and economic agreements aimed at marginalizing or international rivals, namely the TPP, suggest otherwise. Further, as many self-identified realists have pointed out, he eschews the hard-headed rationalism and balance of power politics advocated by realists in favor of caprice (R Kaplan, On foreign policy, Donald Trump is no realist, The Washington Post, 11 November 2016, https://www. washingtonpost.com/opinions/on-foreign-policy-donald-trump-is-a-fake-realist/2016/11/11/c5fdcc52a783-11e6-8042-f4d111c862d1_story.html?utm_term=.ad9eed78841e, accessed 14 March 2019). 75

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agreements almost by default.77 They are blamed for economic disruption and malaise by constituencies that are loyal to Trump, and those most hostile to Trump are seen to benefit from them. (‘We feel that Nafta has fundamentally failed many, many Americans and needs major improvement,’ explained a US trade representative at a meeting negotiating the agreement).78 Further, Trump has faced the most resistance on trade issues from traditional conservative foreign policy experts who supported his other actions against international legal norms.79 While there is overlap between mainstream conservative thinking on international law and the populism of the Trump administration, the paranoid policies of this administration distinguish it qualitatively, providing different rationales for rejecting legal norms, and quantitatively, greatly magnifying the intensity and breadth of US hostility to the international legal order. As Pillar puts it, ‘It is not clear yet whether Donald Trump’s foreign policy has enough coherence to merit the label of any “ism”, with or without capital letters. But it certainly isn’t realism.’80

3.7

Towards a Populist International Law?

Populism is an emotive, rather than ideological movement rooted in a sense of alienation and hostility towards traditional political elites, including international lawyers. Beyond this shared hostility, there is little to its conceptual core, making it suitable for a wide variety of politics, agendas, and circumstances. The policies of populism are shaped more by the emotions of its leaders and their followers than by any thoroughly considered policy agenda. As the continuities and disruptions in its history show, there is no necessary connection between a populist politics and any particular view of international law. Rather than populism per se, the Trump administration’s political paranoia is its defining emotive feature, and this has shaped its blanket skepticism towards international legal norms. Because of the paranoid emotive core of the Trump administration, international law has been one of its defining objects of attack.

77 H Broadman, Trump’s Misplaced Penchant for Bilateral Trade Deals, Forbes, 31 January 2018, https://www.forbes.com/sites/harrybroadman/2018/01/31/trumps-misplaced-penchant-forbilateral-trade-deals/#501bf75957b9, accessed 14 March 2019. 78 B Appelbaum, U.S. Begins Nafta Negotiations With Harsh Words, The New York Times, 16 August 2017, https://www.nytimes.com/2017/08/16/business/economy/nafta-negotiations-canadamexico.html, accessed 14 March 2019. 79 F Zakaria, Trade is the Republican Party’s last stand, The Washington Post, 8 March 2018, https://www.washingtonpost.com/opinions/trade-is-the-republican-partys-last-stand/2018/03/08/ b31c840e-2313-11e8-94da-ebf9d112159c_story.html?utm_term=.6b2803750f8a, accessed 14 March 2019. 80 P R Pillar, Trump Is No Realist, The National Interest, 27 May 2017, https://nationalinterest. org/blog/paul-pillar/trump-no-realist-20887, accessed 14 March 2019.

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This paranoia is rooted in the eccentric and erratic personality of President Trump himself, which generates a set of problems for Trumpian populism. Because they lack ideological principles and must rely on the often changing intuitions of its leadership, populist governance faces several internal threats.81 It is often subject to significant instability as different agents within the government seek to implement the imprecise ideas of their superiors without a developed ideology to guide their decisions. Further, populist leaders are subject to the influence of figures who are capable of ‘capturing’ their policies, pressing them into the service of more conventional political interests or even into outright corruption. In relation to international law, this means that political authorities struggle to implement the underdeveloped ‘Trumpian vision’ of international politics on one hand, while more traditional realists and exceptionalists from the conservative movement seek to impose their vision on a largely unwitting President. While the administration has undermined the international legal standing of the US, it does not necessarily entail that the administration will disregard all its international legal commitments. The administration’s paranoia does indeed generate a blanket antipathy towards international agreements, but this has not prevented the administration from seeking new agreements when it wishes. Trump blasted NAFTA as ‘the worst trade deal’ but was open to negotiating a new trade agreement with Mexico and Canada, the nascent US-Mexico-Canada Trade Agreement. Similarly, he has shown an openness to a new Pan-Asian Trade Agreement, on his own, largely undefined terms.82 While it wasn’t a formal treaty, the administration ham-handedly sought a nuclear agreement with the Democratic People’s Republic of North Korea which could ultimately generate legal obligations for both states. Trump’s hostility towards international legal commitments is significantly less strong when the commitment is associated with his administration. As Weber’s analysis of charismatic authority suggests, personality-driven movements tend to be short-lived and unstable.83 Populist movements often collapse after the death of their leaders or after proving ineffective at improving the lives of their adherents. Maduro’s slip into authoritarianism after the death of Chavez is one example of this phenomenon.84 The relationship between the state and international law, on the other hand is dependent on stability and a mutual recognition of the value of norms, embodied in principles such as pacta sunt servanda and requires a willingness for states to recognize themselves as bound by existing international norms and members of an international community of sovereign and equal states. Only international elites are apt to recognize the long-term value of these norms. To the extent that modern versions of populism 81

Joosse 2014. A Taylor, A timeline of Trump’s complicated relationship with the TPP, The Washington Post, 13 April 2018, https://www.washingtonpost.com/news/worldviews/wp/2018/04/13/a-timeline-oftrumps-complicated-relationship-with-the-tpp/?utm_term=.e4a4cafe3eb5, accessed 14 March 2019. 83 Weber 1978. 84 Michelutti 2017. 82

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challenge the power and legitimacy of these elites, they challenge the authority of international law and all of the benefits that have emanated from this authority. If the American branch of the ‘invisible college’ can prevent the erosion of America’s international legal commitments and its standing among the community of nations under withering attack from the Trump administration, it is likely that future US governments will develop a more conventional attitude towards the global rule of law. International law is by nature an elite discourse that requires an extensive understanding of laws, norms, and principles – some of which extend back to antiquity.85 The international legal community, Schachter’s ‘invisible college’, consists in a series of gatekeepers that limit the ability of outsiders to participate in the formation, interpretation, and enforcement of international law. Ironically, however, international law over the last century has sought to limit the influence of some of the most powerful collective actors, states, and boost the international legal status of the same everyday individuals celebrated by populism. Human rights norms have sought to protect individuals from excessive governmental power over the individuals and to give common people a protected international legal status. The tension between international law elitism and the desire of human rights law and humanitarian law to promote the dignity of the individual is a potential point of intersections between Trump’s supporters and international law, which many in the invisible college may wish to exploit. Finally, it is worth noting that the non-ideological nature of populism means that hostility towards international legal norms is not inherent in these movements nor is it a necessary correlate to them. The populism of Bryan, for example, suggests a different attitude towards international norms, as does that of Wallace. The paranoid populism of Trump is just as much an artifact of the man himself as it is the result of any political movement. Whatever its other drawbacks, populism is not inherently hostile to international legal norms and should not be treated as such. International law advocates would benefit from seeking to make international law more democratic, more accessible and indeed more populist (to the extent possible) to help weather this populist storm and be better prepared for the next one.

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Birt R (1993) Personality and Foreign Policy: The Case of Stalin. Political Psychology 14(4): 607–625 Bryan WJ, Bryan MB (1900) The Life and Speeches of Hon. Wm. Jennings Bryan. R.H. Woodward Company, Baltimore Canovan M (2002) Taking Politics to the People: Populism as the Ideology of Democracy. In: Mény Y, Surel Y (eds) Democracies and the Populist Challenge. Palgrave Macmillan, London, 25–44 de Wet E (2004) The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law. European Journal of International Law 15(1):97–121 Demertzis N (2006) Emotions and Populism. In: Clarke S, Hoggett P, Thompson S (eds) Emotion, Politics and Society. Palgrave Macmillan, London Fuchs D, Klingemann HD (2014) The Left-Right Schema. In: Jennings MK, van Deth JW (eds) Continuities in Political Action: A Longitudinal Study of Political Orientations in Three Western Democracies. Walter de Gruyter GmbH & Co KG, Berlin Greenburg JC (2008) Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (Reprint edition). Penguin Press, London Hadiz VR, Chryssogelos A (2017) Populism in world politics: A comparative cross-regional perspective. International Political Science Review 38(4):399–411 Hamilton A, Madison J, Jay J (2014) The Federalist Papers. Courier Corporation, Chelmsford Henkin L (1984) International Law as Law in the United States. Michigan Law Review 82(5/6):1555–1569 Hofstadter R (1955) The Age of Reform: From Bryan to F.D.R. Vintage Books, New York Hofstadter R (1989) The American Political Tradition: And the Men Who Made it (Reissue edition). Vintage Books, New York Irwin DA (2017) The False Promise of Protectionism: Why Trump’s Trade Policy Could Backfire. Essays. Foreign Affairs 96:45–56 Jacobs LR, Page BI (2005) Who Influences U.S. Foreign Policy? American Political Science Review 99(1):107–123 Joosse P (2014) Becoming a God: Max Weber and the social construction of charisma. Journal of Classical Sociology 14(3):266–283 Koh HH (2017) The Trump Administration and International Law. Faculty Scholarship Series 56:413–469 Koh HH (2004) International Law as Part of Our Law. American Journal of International Law 98(1):43–57 Lasswell HD (1976) Power and Personality. W. W. Nornton & Company, New York Leuchtenburg WE (1952) Progressivism and Imperialism: The Progressive Movement and American Foreign Policy, 1898–1916. The Mississippi Valley Historical Review 39(3): 483–504 Lowndes J (2005) From Founding Violence to Political Hegemony: The Conservative Populism of George Wallace. In: Panizza F (ed) Populism and the Mirror of Democracy. Verso, London Mead WR (1999) The Jacksonian Tradition: And American Foreign Policy. The National Interest 58:5–29 Michelutti L (2017) “We Are All Chávez”: Charisma as an Embodied Experience. Latin American Perspectives 44(1):232–250 Mudde C (2004) The Populist Zeitgeist. Government and Opposition 39(4):541–563 Posner E (2017) Liberal Internationalism and the Populist Backlash. University of Chicago Public Law & Legal Theory Paper Series Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement, 23 January 2017 Rico G, Guinjoan M, Anduiza E (2017) The Emotional Underpinnings of Populism: How Anger and Fear Affect Populist Attitudes. Swiss Political Science Review 23(4):444–461 Robins RS, Post J (1997) Political Paranoia: The Psychopolitics of Hatred, 1st edn. Yale University Press, New Haven

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Schachter O (1977) Invisible College of International Lawyers. Northwestern University Law Review, 72(2): 217–226 Schlesinger AM (2004) The Imperial Presidency. Houghton Mifflin Harcourt, Boston Seligson MA (2007) The Rise of Populism and the Left in Latin America. Journal of Democracy 18(3):81–95 Stirewalt C (2018) Every Man a King: A Short, Colorful History of American Populists. Grand Central Publishing, New York Trump D (2017) National Security Strategy of the United States of America, December 2017, https://www.whitehouse.gov/wp-content/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf. Accessed 25 March 2019 Weber M (1978) Economy and Society: An Outline of Interpretive Sociology. University of California Press, Berkeley Wiessner S (1994) American Indian Treaties and Modern International Law Tribal Sovereignty: Back to the Future. St. Thomas Law Review 7:567–602

Chapter 4

Is There a ‘Populist’ International Law (in Latin America)? Alejandro Rodiles

Contents 4.1 Introduction........................................................................................................................ 4.2 Latin American ‘Classical Populism’ at the International Level – Between Pragmatic Self-assurance and Proactive Tercermundismo................................................................. 4.2.1 Peronismo’s Third Position or Semi-peripherical Pragmatism.............................. 4.2.2 Mexico’s Populist Foreign Policy in the 1970s: The Promotion of a New International Economic Order (NIEO)................................................................... 4.3 The ‘New Latin American Left’: Attempts at Decolonising Global Law ....................... 4.3.1 The Counter-Coalition Called ‘ALBA-TCP’ ......................................................... 4.3.2 Evo Morales and the Emergence of a Global Law of Nature .............................. 4.4 Conclusion ......................................................................................................................... References ..................................................................................................................................

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Abstract It is usually assumed that populism is hostile towards international law. However, this assumption is based on a particular version of populism (far-right) and of international law itself (that associated with the liberal international order). A closer look at the many manifestations of populism, actually reveals that different approaches to international law have been present across time and space. Taking Latin America as the case-study, this chapter shows that governments which have been labelled ‘populist’ have proactively advocated certain conceptions of international law. Conscious of their status in the semi-periphery, Peronismo in Alejandro Rodiles is Associate Professor, ITAM School of Law, Mexico City. Earlier versions of this contribution were presented in Canterbury, at the Centre for Critical International Law, University of Kent, and at the 2018 Annual Conference of the Mexican Chapter of ICON-S, in Mexico City. I thank the attendants for very useful discussions; special thanks are due to Gavin Sullivan, Micaela Alterio, and Roberto Niembro for the invitations. My gratitude for really great and very detailed comments goes to the anonymous reviewers, Francisca Pou Giménez, and most of all to Juan González Bertomeu. Any mistakes are my sole responsibility. A. Rodiles (&) ITAM, Mexico City, Mexico e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_4

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Argentina promoted a Cold War doctrine of equidistance to the major powers based on efforts of regional legal integration, while the government of Echeverría in Mexico became the major force behind the New International Economic Order (NIEO). Both represent early Third World Approaches to International Law (TWAIL). Based on Andean indigenous ontology, the government of Evo Morales in Bolivia has advanced an emerging global law of nature. Hence, reducing populism to a parochial, international law unfriendly ideology is partly grounded in an outdated vision of international law that has not yet learned, or does not want to recognise, that there are several possible versions of it.















Keywords Populism International law Latin America Peronismo Semi-periphery New International Economic Order (NIEO) Third World Approaches to International Law (TWAIL) ALBA-TCP Pachamama Global law of nature




4.1







Introduction

It seems almost logical to say that the relationship between populism and international law is a very tense one, confrontational actually. In the end, most people associate populism with anti-globalization, anti-integration, and anti-immigration rhetoric and policies. Thus, legal projects of regional or even megaregional integration, trade or even deep economic integration, appear to be at odds with populists’ discourse and political agendas. Moreover, the broader aspiration of an international community built through law that seeks to contain nationalistic anxieties, favouring instead the construction and protection of universal values, would present itself almost as an antithesis of populism. Recent manifestations of populism in Europe and the United States of America (USA) do certainly point in that direction: the BREXIT movement is anti-integrationist per definition and strongly motivated by anti-immigration sentiments; other populist parties in Europe which have agitated the political landscape in France, Germany, and The Netherlands, for instance, have a troubled relationship with the European Union (EU) and portray ‘the immigrant’ as the foil of ‘the people’. Exclusion-driven policies and actions in Hungary, Italy, and the USA are framed as a vehement defence of the ‘heartland’, under which the humanitarian aims of international refugee law and human rights law more broadly have no place.1 Their explicit and implicit calls of returning to a world divided by

As mentioned by Karin Priester (referring to the work of Paul Taggart), the notion of ‘heartland’ is crucial for understanding populism, but ‘the heartland’ refers to multiple topoi: the local topos signalling those outside the centres of power; the topos of the ‘common-sense’ that opposes scientific and expert knowledge, the topos as cultural expression of life traditions that are threatened from in and outside the country, etc. In other words, the heartland is not only about

1

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walls2 – literally on land, almost literally at sea, and conceptually in almost every aspect of international relations – can be seen as attempts at bringing us back to a rudimentary international law of basic coexistence among sovereigns. So, it may be a commonplace, but it seems to be true, nonetheless, that populism represents a strong defiance to international law and its most cherished values expressed in the United Nations Charter, and other foundational multilateral treaties, as well as in the basic principles recognized as customary international law. However, this is a simplification that leads us to jump too easily to conclusions, based only on a few manifestations of populism which are all particularly situated in time (contemporary politics) and space (Europe and the USA). Populism is neither a contemporary appearance, nor a Western phenomenon. Even a more comprehensive look at the ‘Global North’ invites us to second-guess some of the above mentioned. Bernie Sanders in the USA is considered a populist like Donald Trump, but he is certainly not associated with the anti-Mexican and anti-Muslim rhetoric and policies of the latter. Neither PODEMOS in Spain nor SYRIZA in Greece, both of which have been characterized as populists as well, are driven by anti-immigration agitation. Also, their stance vis-à-vis the EU is not without tensions, but it is far from confrontational.3 This reflects the difficulties of defining ‘populism’,4 and the need to differentiate it from other phenomena, like social movements in a globalized world,5 which may share indignation about some aspects of globalization with the former, but which are truly global in many aspects – as depicted in the terminological struggle between ‘anti-globalization’ and ‘alter-mondialisation’.6 Indeed, there is no fixed definition of populism, and the more one reads and thinks about this notion, the stronger the impression becomes that there is perhaps no such a thing at all.7 I have come to think of it as a convenient and flexible label for discrediting political opponents due to the predominantly negative associations it evokes in peoples’ minds – most of all of being emotionally loaded, and hence, irrational politics. (anti-)migration policies, but identity politics more broadly; see Priester 2011, at 196. I thank Günter Frankenberg for drawing my attention to the important writings of Priester on populism. 2 As a sign of preoccupation with the reappearance of physical and discursive walls around the globe, the 2017 Law and Society Association (LSA) meeting, held in Mexico City, was entitled Walls, Borders, and Bridges: Law and Society in an Inter-Connected World, see http://www. lawandsociety.org/MexicoCity2017/mexicocity2017.html, accessed 20 January 2019. 3 See Verbeek and Zaslove 2017, at 392 (with further references). 4 Particularly relevant on this, see Priester 2011. It is true that there is now a quite developed body of literature on the subject-matter, which has helped to identify some core aspects of populism as a style of government and discursive praxis, or as a political strategy to obtain power. I do not question this (see n 8, and accompanying text). However, this core is, in my view, still too open-textured to talk about a satisfactory definition. 5 See della Porta 2017. 6 See de la Rosa García 2010; for a political manifesto of ‘alter-mondialisation’, see de Sousa Santos 2005. 7 The best-known attempt of bringing clarity into the notion of populism is Müller 2017; for an important and well-balanced critique, see Gónzalez-Bertomeu and Saffon 2017.

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In spite of these difficulties, it is nonetheless meaningful to engage with this political label, which has an elementary but useful identifier: a rhetoric of antagonism between ‘the people’, which is portrayed as intrinsically good, and the corrupt and greedy ‘elites’, crucially including in our context ‘global elites’. For Jan-Werner Müller and other authors, this antagonism can be so extreme that it may derive in a Manichean politics of inclusion/exclusion, eliminating the possibilities of meaningful political pluralism.8 In addition, there is often the idea of a single person representing the people’s will. However, this varies according to the pre-existing political system and culture where particular manifestations of populism thrive. Presidential systems may favour the construction of the myth around a single political leader more than parliamentary systems do, and predominantly male or even macho political cultures may facilitate the personal cult around a chauvinistic leader.9 On its part, Karin Priester points to an aspect that has not received sufficient attention so far and which is particularly relevant in the present context, that is to understand populism as a syndrome of profound discomfort of broader societies, i.e. including middle and lower classes, with technocratic expertise, globalisation, and accelerated knowledge, evolutions that are felt (and made by populists leaders) responsible for exclusion and a deepening cleavage between the ‘ordinary’ people and globalised elites.10 Bearing these characteristics of populism as a conceptual approach in mind, I will concentrate here on the ‘populism label’ and specifically on governments, rather than movements or candidates. In other words, this essay is about how national governments labelled ‘populists’ relate with international law. Are these type of governments at odds with international law, do they undermine it? Or do they favour a certain version of international law? May there be even a sort of ‘populist international law’? These are the kind of questions I will address in the pages to come.

8 Müller 2017, at 1–6; de la Torre 2015, at 2 (seeing an advantage in understanding populism either ‘as a strategy to achieve political power and to govern, or as a discourse that represents politics as a Manichean struggle between the mythical “people” and the evil elites’); see also Verbeek and Zaslove, at 387 (distinguishing between nationalism and populism in the sense that the distinction between the people and the elite ‘is inherent to populism but need not be present in nationalism’). 9 In this context, it is interesting to recall the figure of the ‘caudillo’, the prototype of Latin American dictators, which has been historically tied to the personal cult around a ‘strongman’. However, ‘caudillos’ need not be populists, nor are populists necessarily caudillos, as exemplified by Eva Perón in Argentina, certainly a prototype of Latin American populist leaders. Barack Obama also referred to ‘strongmen politics’ in clear allusion to Donald Trump’s chauvinistic political style, see The New York Times, Transcript: Obama’s Speech Defending Democracy, 17 June 2018, https://www.nytimes.com/2018/07/17/world/africa/obama-speech-south-africatranscript.html, accessed 20 January 2019. 10 Referring to Ulrich Beck, Priester calls it ‘the symptom of widespread cultural discontent, arising in the middle of the society, due to the frontiers and repercussions of the ‘first modernity’’; see Priester 2011, at 197.

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In order to move away from the simplistic narrative about the perils that populism (as a single concept) poses to international law (as a single concept), I will focus on governments in Latin America that have been labelled populists. There, populism has a long history, dating back to the 1930s. Accordingly, there is a very rich – and arguably, also a pioneering – body of studies in the region on the subject-matter,11 including a highly interesting stream of writings by legal scholars, who have analysed this label vis-à-vis constitutional law and constitutionalism more broadly.12 Although I am concerned here with conceptions of populism and international law, these legal studies have developed important arguments in relation to the kind of issues that are equally relevant to constitutional and international lawyers, namely rule of law, human rights, and democracy-related issues. My focus on Latin America has also to do with the fact that many of the manifestations of populism in the region are politically situated on the left,13 or can at least be identified with a strong promise of redistribution of wealth.14 This is particularly interesting in the present context, because left-wing populism – as already mentioned in the cases of SYRIZA and PODEMOS – is not characterized by xenophobic attitudes, and it tends to be more sympathetic towards integration processes, at least at the regional level. Indeed, what is commonly known as ‘leftist Latin American populism’ is actually characterised by an international law-friendly attitude, in stark contrast to the far-right populism present today in various countries of the Global North. I will show this by analysing the foreign policy and international legal initiatives promoted by populist governments of the region in different periods. In the next section, I will deal with ‘classical Latin American populism’.15 Beginning with its early manifestations in Argentina with Juan Domingo Perón in the 1940s and 1950s, I will then move to the return of Peronismo in the 1970s, paying particular attention to the academic writings and diplomatic strategies of Juan Carlos Puig, an Argentinean diplomat and international lawyer who, drawing on an analysis of national elites and their dependency on dominant foreign powers,

11

See, e.g., Laclau 2005; de la Torre 2010; and the various contributions in de la Torre 2015. See, e.g., Negretto 2012; Alterio 2016; Gónzalez-Bertomeu and Saffon 2017; Saffon and Gónzalez-Bertomeu 2017; Alterio forthcoming. 13 Although politicians on the right have been considered populists too, such as Presidents Alberto Fujimori, in Peru (1990–2000), and Carlos Menem, in Argentina (1989–1999). The case of José María Velasco Ibarra, in Ecuador, reveals a more complicated picture, and even on Peronismo there is big debate in Argentina as whether it can be situated on the left or not. On ‘Velasquismo’, see de la Torre 2010, at 28–79; on Peronismo, see, inter alia, Altamirano 2011. 14 I thank Juan F González Bertomeu for drawing my attention to this important clarification. 15 See de la Torre 2010, at 1–27. 12

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construed an interesting international relations (IR) doctrine of Latin American autonomy. I will close the study of the ‘classical’ period with the international legal initiatives of the government of Luis Echeverría (1970–1976), in Mexico. These initiatives, which actually show clear similarities with the thoughts of Puig, have become known in Mexico as ‘tercermundismo’ (‘Third-Worldness’), denoting the idea of the construction of a more just and equal international order based on international law, which resonates all too well with the political movement that ‘stand on the shoulders of Bandung and the Group of 77’,16 identified later on by the Third World Approaches to International Law (TWAIL) intellectual movement.17 In the third section, I will focus on the so-called ‘New Latin American Left’ emerging at the turn of the 2000s. Also called ‘neo-populism’, this ongoing political manifestation is represented by the countries of the Bolivarian Alliance for the Peoples of the Americas (ALBA-TCP). I will take a brief look at the anti-neoliberal agenda of ALBA-TCP, but the focus will be on the efforts of the government of Evo Morales in Bolivia to construe a global law of nature. These case-studies will serve to debunk the myth that populist governments are necessarily inward-looking, outdated, and consequently at odds with international law. Some of them have been in tension with certain aspects of it, and it is neither my intention to defend the grave human rights abuses of some of the governments I will study in the ensuing pages, nor their reactionary attitude towards international scrutiny by regional human rights protection mechanisms. The point is that an unprejudiced analysis of how governments labelled as populists in Latin America have actually engaged with the outside world, reveals that some of them have actively promoted certain versions of international law. These versions differ not only from standard accounts of international law, but also among themselves. There is, however, a common pattern, namely a conception of international law that emphasises the struggle for equality in international relations. This may suggest the existence of a sort of ‘populist international law’ in the region, or simply that reducing the analysis of populism and international law to one single conception of the latter only serves to reinforce the current myths about former. This reminds of a whole intellectual attitude that has arrogantly ridiculed the demand-side of populism as irrational emotions, and which is partly responsible for its rise across the globe.18

16

Mutua 2000, at 32. The origins of TWAIL are disputed (see Kanwar 2017, at 154–155). There are those who situate its birth in the Asian-African conference, held in Bandung, Indonesia, in 1955 (see Mutua 2000, at 31), and those who accentuate the emergence of the scholarly movement around Harvard Law School in the mid-1990s (see Gathii 2011, at 28–29, and Gathii 2019). 18 See Chacón 2017, at 54–58. 17

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Latin American ‘Classical Populism’ at the International Level – Between Pragmatic Self-assurance and Proactive Tercermundismo

National governments in Latin America have been labelled ‘populists’ at least since the 1930s. Presidents Getúlio Vargas in Brazil (1930–1945), Lázaro Cárdenas in Mexico (1934–1940), and José María Velasco Ibarra in Ecuador (1934–1935),19 are the early examples. Actually, the distinction has been made between ‘classical Latin American populism’, referring to those governments as well as to the administrations of Juan Domingo Perón in Argentina (1946–1955; 1973–1974), on the one hand, and the new wave of populism or ‘neo-populism’ in Bolivia, Ecuador, and Venezuela, arising at the turn of the new millennium, on the other.20 In between these two phases – if one considers the coming-backs of Peronismo in Argentina, and the back-and-forth to power of Velasco in Ecuador, the first phase actually extends quite long over the 20th century – the administrations of Luis Echeverría in Mexico (1970–1976) and of his successor, José Lopéz Portillo (1976–1982) have received this label as well. These governments and the broader political movements that have grown around their central political figures21 are very dissimilar in various aspects. What they have in common is that they carry the populism label, are predominantly positioned on the political left, or at least denote left-wing characteristics, most of all in the sense of the strong promise of redistribution – this can be said about Velasquismo in Ecuador and Peronismo in Argentina – and that their stance towards international law is not confrontational, but actually supportive. The latter aspect is present from Cárdenas in the 1930s22 to the ‘new Latin American left’ at the turn of the millennium. 19

See also de la Torre 2010, 5. Velasco returned four additional times to the presidency (1944– 1947; 1952–1956; 1960–1961; 1968–1972). 20 See de la Torre, 2010, at 1–27. 21 As shown with the labels of ‘Peronismo’, ‘Cardenismo’, and ‘Velasquismo’, the political agendas of these governments and arguably also the political style of their leaders have transcended specific administrations and become political currents inside parties or parties themselves, such as the Justicialist Party in Argentina. 22 President Cárdenas’s foreign policy was defined by the active opposition to fascism in Europe (in the League of Nations and by supporting the Republicans in Spain), his unprecedentedly generous asylum politics for people escaping fascism (especially from Spain), and the expropriation (nationalisation) of the Mexican oil industry (1938) (for an interesting account of Cárdenas’s foreign policy, see Meyer 1971). It is only the last aspect that may be related to populism, in that this expropriation was undertaken as part of the grand project of Cárdenas to ‘redistribute the land’ (and wealth) among the Mexican peasantry. However, while this may help explain the populist label assigned to Cárdenas, it also shows, again, that this characterisation is very doubtful indeed. It is interesting to observe, nonetheless, that the government of Cárdenas argued that according to positive international law there was no obligation of immediate or deferred compensation for general and impersonal expropriations, like the one carried out by Mexico for the purpose of the redistribution of the land, and that controversies on compensation should be settled according to

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In this section, I will concentrate on the foreign policy and its relationship with international law of Peronismo in Argentina, as well as during the Echeverría administration in Mexico. The time period of these cases goes from the 1940s to the 1970s, so that these may be seen as early and late examples of the ‘classical’ phase. After that, I will move to contemporary or neo-populism, with a focus on the Bolivarian Alliance for the Peoples of the Americas (ALBA-TCP) and the international efforts by the government of Evo Morales in Bolivia regarding the incipient global law of nature.

4.2.1

Peronismo’s Third Position or Semi-peripherical Pragmatism

Juan Domingo Perón’s foreign policy was characterised, from his first administration on (1946–1951), by the doctrine of the so-called ‘Third Position’ (Tercera Posición).23 In a nutshell, this foreign policy doctrine was conceived as a means for achieving Argentina’s relative autonomy towards the two new great power blocks of that time, namely the USA and the Soviet Union, as well as ideologically to communism and capitalism.24 It was born, thus, as a Cold War doctrine, negatively defined in the sense of not becoming too close to, nor too distanced from the poles of the then emergent bipolar system. It must be said, however, that faithful to its pragmatism in international affairs, Perón recognised the need not to alienate the Western hemispheric power unnecessarily, and thus he maintained a more inclined position towards the USA than to the Soviet Union in those issues which were essential to the former.25 This doctrine of strategic equidistance must be seen in

Mexico’s law and by its tribunals. In the end, his government settled the issue via the negotiation of compensation agreements that did not bear an unreasonable burden for Mexico; see Woolsey 1938 (for a US-American international legal perspective on the expropriation); Hackworth 1942, at 655 (for Mexico’s international legal argument); and Macmahone and Dittmar 1942 (on the conflict solution); see also n 57. 23 The original articulation of this foreign policy doctrine can be found in a speech of Juan Domingo Perón, on 11 November 1953, at the National War College in Buenos Aires, see Perón 1953; see also Barrios 2008, at 130ff; Oddone and Granato 2005. 24 This can be seen as a corollary of the main ideological legacy of Perón, namely ‘justicialism’: ‘And so, justicialism was born (…) as a third ideological position that tends to liberate us [i.e. the people of Argentina, AR] from capitalism without falling into the oppressive clutches of collectivism’ (Perón 1952). 25 See Puig 1980, 193–197. This is quite similar to what in Mexico became known as the ‘Ojeda doctrine’, articulated by IR realist scholar, Mario Ojeda, a student of Hans Morgenthau, and which basically states that given its ‘special’ (geopolitical and asymmetrical) relation with the USA, Mexico can disagree with its northern neighbour on issues that are not essential to the superpower; see Ojeda 1976.

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light of the struggle of Latin American nations to preserve their independence.26 Aligning with either side was tantamount to a loss of real political independence in international and even domestic affairs. It was thus about avoiding to serve as a superpower’s proxy, and hence an early precursor of the non-aligned movement and, with it, of the emancipation of the Third World. There is hardly anything particularly ‘populist’ about this doctrine, even if one frames it as a struggle for the independence of the Argentinean people – for that matter, any autonomous foreign policy would be populist. The Third Position has been, however, the template for most Peronist governments,27 reaching out to the mandates of Héctor Cámpora in the 1970s, and, more recently, to those of Néstor Kirchner (2003–2007) and Cristina Fernández de Kirchner (2007–2015). The means for construing an autonomous foreign policy which could engage constructively with the outside world without falling into the clutches of the major powers, was offered by international law with its principles of sovereign equality, non-intervention, and peaceful cooperation.28 At least as important as the respect and promotion of the universal legal system was regional integration. Indeed, the Third Position was from its very beginning inherently tied to South American integration, for it was clear to Perón in particular that the autonomy of a semi-peripheral nation like Argentina could only be achieved through the construction of strong alliances with other nations in a similar geostrategic position. Following his own motto ‘united or dominated’,29 Perón’s major aims were at Latin American integration,30 but, perhaps for practical reasons, his strategy concentrated on the Southern Cone. Within this strategy, particular importance was attached to the relationship with Brazil and Chile. Actually, Perón referred to his rapprochement as a sort of new and more profound phase of the 1915 ABC Pact,31 i.e. the treaty between Argentina, Brazil and Chile on non-aggression, consultation and arbitration.32 Perón’s plan of regional integration was quite innovative. It consisted of a series of bilateral treaties with South American countries on a diversity of subjects, from commerce (Peru, 15 May 1946, Ecuador, 5 August 1946, Brazil, 29 26 On the struggle for conserving independence through the participation of Latin American nations in international law-making, in particular in regard to the evolution of international humanitarian law, see Rodiles forthcoming. 27 A clear exception was the administration of Carlos Menem which clearly leaned towards the USA, – the same can be said in regard to Mauricio Macri’s government nowadays. 28 Argentina is one of the 51 founding members of the United Nations Organization, see http:// www.un.org/depts/dhl/unms/founders.shtml. See also, Oddone and Granato 2005, at 18 (quoting JD Perón in relation to the importance of respecting international law in diplomatic affairs). 29 Perón 1953. 30 Ibid. (referring to San Martín, Simón Bolívar, and the Pan American conferences of the early 20th century). 31 Ibid. 32 Treaty between the Republic of Argentina, the United States of Brazil, and Chile for the Peaceful Resolution of International Disputes (1915), at https://www.dipublico.org/107093/ tratado-entre-la-republica-argentina-los-estados-unidos-del-brasil-y-chile-para-facilitar-lasolucion-pacifica-de-controversias-internacionales-tratado-abc-1915/.

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November 1946) to financial cooperation (Chile, 13 December 1946; Bolivia, 26 March 1946) to cooperation on international rivers (Uruguay, 30 December 1946) to the establishment of binational commissions on general cooperation (Paraguay, 16 November 1946).33 Thus, it was an early model of network-bilateralism, a plurilateral strategy that sought to forge, in the aggregate so to speak, a sort of South American union.34 Later on, in the 1970s and 1980s, the Argentinean international lawyer and foreign minister of the Peronist President Héctor Cámpora (1973),35 Juan Carlos Puig, developed, together with the Brazilian Helio Jaguaribe, what is called by some the ‘realism of the periphery’,36 and by others the ‘South American School of Autonomy’.37 This theory is realistic in that it acknowledges power asymmetries in international relations and elaborates precisely on the premise that the foreign policy of Latin American States has to take their semi-peripherical status seriously, in order to engage autonomously in the international order. It does, in that sense, also relate to dependency theory, as it is particularly clear in the case of Jaguaribe. Interestingly though, the Brazilian’s dependency theory is based on the analysis of domestic elites and how these relate to the dominant, external powers.38 Puig construed a theory of autonomy in international relations for Latin America. According to his theory, there are four different scales of autonomy: ‘para-colonial dependency’, ‘national dependency’ ‘heterodox autonomy’, and ‘secessionist autonomy’.39 Crucially, Puig’s autonomy theory, clearly influenced by Jaguaribe’s work, combines the analysis of formal legal structures with an analytical appraisal of elite-thinking and mobilisation. ‘Para-colonial dependency’ refers to nations which have achieved legal independence under international law, but whose political and economic elites still depend on the former Metropolis. In these cases, the formally sovereign State is captured by a small domestic elite that accumulates vast economic and political privileges by becoming ‘enclaves’ of the former colony. Hence, the corruption of the domestic elites is tied to informal colonial domination. ‘National dependency’ represents only a gradual difference to ‘para-colonial dependency’, but an important one, because the national elites start ‘rationalising dependency’, in the sense of accepting subordination to the foreign dominant power, but trying to get the most out of it, beyond selfish and short-sighted particular interests. Thus, there is still a 33

See Oddone and Granato 2008, at 21. See Puig 1980, at 198; Oddone and Granato 2008, at 19. It is also interesting to note, as mentioned by these authors, that big infrastructure projects across several of these countries were part of Perón’s integration plans. On serial bilateralism as a multilateral strategy, see Rodiles 2018a, at 138–140. 35 Cámpora paved the way for the return of Juan Domingo Perón to power later on that year (and after the interim presidency of Raúl Lastiri). 36 See Russell and Tokatlian 2003, at 7. 37 See Simonoff 2016, and Briseño Ruiz and Simonoff 2017. 38 Jaguaribe 1979. 39 See Puig 1980, at 149–155. 34

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clear alignment with the interests of the foreign power, but in essential issues for the dependent State, disagreement may emerge, as Puig exemplifies with the Drago doctrine of 1902, i.e. the formal protest of Argentina’s foreign minister, Luis María Drago, against foreign military intervention in the Americas (Venezuela) in cases of collection of public debt.40 This ‘rationalisation’ of dependency may allow for some bits and pieces of a national project, but it is constrained to extreme situations. It may, nevertheless, facilitate the transit to an autonomous stance towards the outside world as the participation in international law through the Drago doctrine demonstrates. Real autonomy comes, according to Puig, in two grades: ‘heterodox’ and ‘secessionist autonomy’. While the latter is absolute in that it represents a full break with the former colonial and dominant States, the former is relative because it is still attached to the acknowledgement of asymmetric power. ‘Heterodox autonomy’ means that there is a growing field of issue-areas where the less powerful can freely decide and disagree with the most powerful, but that there remains a reserved area of crucial interests of the latter, in which it is willing to use all necessary means to defend them, including military ones. Hence, the strategic articulation of foreign policy for semi-peripheral States turns into the expertise of identifying the weaknesses of the powerful, anticipating their crucial interests, and developing the ability to ‘marcher sur le fit du rasoir’.41 This, on its part, requires able national elites that have allowed for the construction of functioning State institutions, and, most importantly, the vision of foreign policy elites to coalesce with other semi-peripheral nations in order to augment, in concert, the field of autonomy of the less powerful. Hence, Latin American integration is a necessary – but not sufficient – condition for the autonomy of the States in the region.42 For Puig, Argentina’s and much of the Southern Cone’s international reality during the Cold War allowed for the aspiration of heterodox autonomy. It is in this sense that Puig embraced the Third Position, but augmented it with his theses on Latin American independence, relaunching it then as Argentina’s main foreign policy strategy in the early 1970s when he served as his country’s chief diplomat, although for only a very short period of time.43 Latin American integration was still very present on the agenda, but a new emphasis on the solidarity with the peoples of the Third World emerged,44 which stood in stark contrast with the Eurocentric attitude of the preceding military dictatorship that saw in the Third World

40 See Puig 1980, 150–151, and 173–174 (making the point that the Drago doctrine was first and above all in the strategic self-interest of Argentina’s running elite, who feared a similar situation, because Argentina was the greatest debtor to the UK at that time); for the Drago doctrine in general, see Esquirol 2012, at 568. 41 Puig, at 153. This is, again, quite similar to the Ojeda doctrine in Mexico, see n 25. 42 Ibid., at 154–155. 43 Cámpora’s government and Puig’s term in office lasted only forty-nine days, and their place within Peronismo was very complicated. Cámpora, who was considered by certain Peronist fractions to be too much on the left and not loyal enough, was expelled from the Justicialist Party in 1975. 44 See Cámpora 1973, at 16–19.

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something alien to the ‘Western and Christian values’ it sought to impose.45 In Cámpora’s inaugural address to Congress, the emphasis was clearly on the respect and promotion of popular sovereignty around the world; it was the peoples’ struggle for independence and autonomy what should direct foreign policy, and not the interests of national elites aligned with foreign political and economic interests. Hence, it was only logical for Argentina to become a member of the Non-Aligned Movement (NAM) in 1973,46 because this grouping coalesced around the goals of maintaining a healthy equidistance from the superpowers in order to preserve their national autonomy. In this sense, the Third Position became, at least under Cámpora and as defined by Puig, a Third World approach to international relations and international law (TWAIL), based on the principle of sovereign equality, primarily understood as the respect for all the peoples’ freedom and will – a sort of ‘universalist populism’, if you want.

4.2.2

Mexico’s Populist Foreign Policy in the 1970s: The Promotion of a New International Economic Order (NIEO)

The administration of Luis Echeverría Álvarez (1970–1976) was full of contradictions. He was internationally on the left, opening Mexico’s doors to politically persecuted in Chile and other military dictatorships,47 but he was also highly repressive and authoritarian at home (as former minister of the interior, he was also partly responsible for the students’ massacre of October 1968, and his presidency is marked by the ‘dirty war’ against students and other political opponents). But the main reason why he has been labelled a populist president (if not the Mexican populist in the 20th century) is related to irresponsible economic policies that sought to gain support among the people, but which were short-termed and damaging at the macro level.48 His foreign policy, in contrast, has been largely claimed as the most active in Mexican history, something that should stay unrivaled until the democratic turn in the country, in 2000, with the presidency of Vicente Fox (2000– 2006) and his prominent foreign minister, Jorge G. Castañeda.49 In part, this unprecedented international activism for a nation which’s main foreign policy

45

See Moneta 1979, at 223–224. This happened shortly after Cámpora left office. However, the process of incorporation to the NAM was not only a major foreign policy objective of Cámpora’s government, but it was prepared under his administration and under the leaderships of Puig and JD Perón personally, who was appointed Special Ambassador for this process; see Saavedra 2004, at 43ff. 47 Héctor Cámpora received political asylum after the military coup of the Junta of 1976, first in the Mexican Embassy in Buenos Aires, and then in Mexico, where he died in 1980. 48 See, e.g., Bazdresch and Levy 1992. 49 See Covarrubias 2008; see also Rodiles 2017, at 143. 46

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doctrine has been the Estrada dictum with its anti-interventionist nucleus,50 was motivated by Echeverría’s personal aspiration of becoming UN Secretary General after his term in office in Mexico.51 Be that as it may, the main feature of this proactive role in world affairs consisted of what is sometimes referred to as ‘tercermundismo’, which literally translates into ‘Third-Worldness’, that is a foreign policy characterised by a strong sense of solidarity with other countries from the Third World, an emphasis on the struggle for political emancipation of these countries against old and renewed forms of colonialism, and the articulation and promotion of international law as the vehicle to achieve a more fair and equal international order based on sovereign equality. Tercermundismo can thus be understood as a manifestation of the political movement of TWAIL, be explained through the lenses of TWAIL scholarship, or both.52 It is no exaggeration to say that ‘populist’ Echeverría became a leader of the Third World. Mexico’s observer status in the NAM did not impede an enthusiastic participation in this forum, as well as in the G77, of which the country was a full member until 1994.53 The respect for sovereign equality and for the economic self-determination of developing countries became a priority for Mexico during his presidency, and the country’s diplomacy actively promoted permanent sovereignty over natural resources (PSNR),54 as well as fair international trade in agricultural products, and food sovereignty more broadly. Echeverría attached great importance to the UN Food and Agriculture Organization (FAO), advocated for a Food Bank inside that organization, and his government played a key role in the creation of the International Fund for Agricultural Development (IFAC), the UN special agency created at the 1974 World Food Conference with the aim of financially assisting countries in order to promote rural development, and particularly the productive capacity of poor rural communities. Echeverria’s diplomacy was also crucial in the creation of the Group of Latin American and Caribbean Sugar Exporting Countries (GEPLACEA).55 Most importantly, Echeverría championed the attempts at building a New International Economic Order (NIEO).56 The Charter of Economic Rights and Duties of States57 goes directly back to his proposal, presented at the

50

On the Estrada doctrine, see Rodiles 2017. Echeverría’s candidacy was not successful and Kurt Waldheim was re-elected in 1976. 52 See n 17, and accompanying text. 53 Mexico left the G77 and disengaged from the NAM once it entered the Organization for Economic Co-operation and Development (OECD) in 1994, the same year that the North American Free Trade Agreement (NAFTA) entered into force. 54 See UNGA, Permanent sovereignty over natural resources, UN Doc. GA Res 1803 (XVII), 14 December 1962; see also Schrijver 2017. 55 See Green 1977, at 4. 56 See UNGA, Declaration on the establishment of a new international economic order, UN Doc. GA Res 3201 (S-VI), 1 May 1974. 57 Contained in UNGA, Charter of economic rights and duties of states, UN Doc. GA Res 3281 (XXIX), 12 December 1974. As observed by Antony Anghie, one of the most interesting aspects of the Charter is Article 2, para 2(c) of resolution 3281, which largely reflects the legal argument 51

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third session of the UN Conference on Trade and Development, held in Santiago, Chile, in 1972.58 All these efforts were framed in a language of defence and promotion of international law, understood as the common language that enables the construction of an inclusive international community. Mexican diplomacy during the Echeverría administration was also characterised by an intensive demarche in order to diversify the country’s international relations. The active participation inside the NAM, albeit as an observer, and within the G77, was accompanied by the intensification of bilateral contacts in Africa and Asia, importantly including China, while the relationships with the USA and the former Soviet Union were also carefully furthered.59 Regarding Latin America, Mexico, promoted the creation of the Latin American and Caribbean Economic System (SELA), an international organization created with the object to coordinate common positions before other international organizations in economic matters.60 The creation of the SELA was motivated by the aim of fostering regional integration through the concerted pursuit of the NIEO. Echeverría underlined the ‘inter-dependency of the world’.61 Accordingly, Mexico’s growth and autonomy were tied to an active and assertive performance on the global stage that could only be achieved by maintaining a healthy equidistance to the major powers. This equidistance could, on its part, only be achieved in concert with others, especially with Latin America nations, but increasingly so with the global semi-periphery. This reminds of the Third Position of Peronismo, particularly as understood by Puig, the scholar, and as promoted by Puig, the diplomat.

4.3

The ‘New Latin American Left’: Attempts at Decolonising Global Law

At the turn of the millennium, Latin America experienced a leftist aggiornamento, starting with Hugo Chávez in Venezuela (1999–2013), Ricardo Lagos in Chile (2000–2006) Néstor Kirchner in Argentina (2003–2007), Lula da Silva in Brazil

(and practice) of the government of Lazaro Cárdenas regarding the nationalisation of the oil industry in Mexico, in 1938 (see n 22). But as mentioned by Anghie, this norm was soon rejected in the Libya-Texaco arbitration (1977) on the ground that this particular provision of resolution 3281 was subject to a vote in the UN General Assembly, and that since many industrialised States voted against, it does not bind those states. The Texaco arbitration is thus a clear example of the many and early obstacles that the NIEO encountered. See Anghie 2007, at 221–222. 58 See UN Office of Legal Affairs Codification Division, UN Audiovisual Library of International Law, Charter of Economic Rights and Duties of States, UN Doc. GA Res 3281 (XXIX), 12 December 1974. http://legal.un.org/avl/ha/cerds/cerds.html. 59 See Green 1977, at 3–4. 60 See Panamá Convention Establishing the Latin American and Caribbean Economic System of 1975, in force 7 June 1976, 1292 UNTS 309 (‘Panamá Convention’). 61 See, e.g., Echeverría 1975.

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(2003–2011), Tabaré Vázquez in Uruguay (2005–2010, first term), Evo Morales in Bolivia (2006 to present), Rafael Correa in Ecuador (2007–2017), and Daniel Ortega in Nicaragua (2007 to present), among others. This has been described as ‘the New Latin American Left’,62 which according to Mexican former foreign minister, historian, and political scientist, Jorge G. Castañeda, has basically two different roots: communism, on the one hand, and Latin American classical populism on the other.63 According to him, only the cases of Chile, Uruguay, and to a certain degree Brazil, are part of the former, while the rest is to be considered as a continuation of Peronismo and other early populist manifestations of the region. He argues that while post-communists have learned their lessons from the past and turned into responsible left-of-centre social democrats (‘the right left’), neo-populists are as damaging as their classical predecessors (‘the wrong left’).64 This has become the standard narrative, reproduced by commentators and in the media, regarding the governments of Bolivia, Ecuador, Nicaragua, and Venezuela, and, to a lesser extent, also in respect to Argentina during the administrations of Presidents Néstor Kirchner and Cristina Fernández de Kirchner (2007–2015). And Chavismo has turned into the paradigmatic case of old-fashioned demagogy, irresponsible economic policies, authoritarianism at home, and nationalistic, inward-looking foreign policy.

4.3.1

The Counter-Coalition Called ‘ALBA-TCP’

The self-promoted personal cult around Hugo Chávez, which acquired almost religious tones, his authoritarian style which has seriously harmed Venezuela’s democratic institutions, albeit leaving formal democracy in place, the stringent anti-imperialist and anti-US American rhetoric of Chávez and his successor, Nicolás Maduro, and most of all the human rights violations against the political opposition, are not to be denied in Venezuela, which is under President Maduro heading towards economic and socio-political collapse.65 Nevertheless, the standard equation Chavismo = Latin American populism = nationalistic, anti-Yankee authoritarianism contains some simplistic reductionisms which should not be taken as givens. Hugo Chávez was a Latin American integrationist and his diplomacy was also very active in fora like the NAM and the G77, a policy continued under Maduro. Venezuela has been at odds with the West, no doubt, but it has constructed close

62

See, e.g., Barrett et al. 2008; and Levitsky and Roberts 2011. See Castañeda 2006. 64 Ibid. 65 At the time of writing, a major crisis in Venezuela is unfolding after the self-proclamation of Juan Guaidó, the President of the National Assembly, as the interim and legitimate President of his country. 63

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ties with Russia and China, as well as with Iran. This may be regarded with suspicion, or even be disapproved as a ‘strongmen diplomacy’ that does not pay due regard to human rights. There is some truth to this, but depicting Venezuela’s foreign policy as inward looking and describing Chavismo as nationalistic seems somehow wrong. The point here is not to defend a foreign policy which relied heavily on the rise of commodity prices and its huge oil industry, making it hence heavily vulnerable to market contingencies. However, the standard narrative is problematic in terms of international relations and international law, because it reduces ‘the global’, to the Global North, internationalism to the liberal international order, and international law to certain – dominant and valid, but particular nonetheless – versions of it. In 2004, Chávez initiated together with Fidel Castro the Bolivarian Alternative for the Peoples of the Americas,66 which then turned into the Bolivarian Alliance (ALBA), assembling today several countries from South-, Central America, and the Caribbean. Following a Bolivian initiative, in 2006, the alliance turned into ‘ALBA-TCP’, where TCP stands for ‘Trade Treaty among Peoples’ – I will come back to this below. ALBA-TCP is not a formal international organization, but a semi-formal platform, structured around declarations of intent and memoranda of understanding. It is a coalition of the willing that was created as a counter-coalition to the Free Trade Area of the Americas (FTAA),67 an initiative led by the government of George W. Bush that tried to establish a free trade agreement for the whole continent. One may be against or in favour of economic integration from the Arctic to the Antarctic, but to discredit ALBA-TCP as a regional version of irrational, nationalistic, inward-looking and old-fashioned populism is tantamount to belittling the BRICS to an anachronistic outsiders’ club. In other words, reducing ALBA-TCP to a populist club of Latin American trasnochados (outdated), reflects itself an outdated understanding of world order where non-polarity, and the Global South indeed, has not arrived yet. It is also quite revealing that this standard narrative depicts ALBA, or ‘regional populism’, as an anti-globalisation coalition. Accordingly, everything that is non-, or post-liberal is not worthy to be contemplated as global and to be taken seriously. There is a major difference between nationalistic populism à la Le Pen or AFD in Germany, and the sort of post-neoliberal regionalism represented by ALBA-TCP. The first is anti-integrationist to the bone, the second is a – peculiar, if you wish – version of integration. Neither is ALBA-TCP a closed circuit among the members of the alliance as it seeks to establish strong ties to other regional integration organizations, especially UNASUR and MERCOSUR –

66

Portal Cuba, Acuerdo entre el Presidente de la República Bolivariana de Venezuela y el Presidente del Consejo de Estado de Cuba para la Aplicación de la Alternativa Bolivariana para las Américas, 29 April 2006, http://www.cuba.cu/gobierno/discursos/2004/esp/a141204e.html, accessed 20 January 2019. 67 On coalitions of the willing and international law, see Rodiles 2018a.

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although the suspension of Venezuela from the latter has complicated relations significantly.68 The ‘TCP’ is not a formal treaty,69 but a set of trade principles that should guide commercial relations among the nations of the Alliance, including in the negotiation of bilateral or plurilateral trade treaties. These principles are understood as an alternative to traditional free trade agreements, hence paying special attention to the differences among trading nations, the poorest sectors in the societies involved, economic self-determination, indigenous rights, and environmental law.70 It also seeks to reinforce the economic ties between ALBA-TCP and MERCOSUR.71 The practical implementation of the TCP has been disappointing so far, but as a matter of the proclaimed objectives of this regional alliance, it seems to be something else than the kind of trade wars, bilateralism, and weakening of international trade law72 that has been promoted by the Trump administration.

4.3.2

Evo Morales and the Emergence of a Global Law of Nature

The international activism of the government of Evo Morales has not been limited to ALBA-TCP. Actually, the case of Morales, rather than Chavismo, represents the

68 MERCOSUR, Suspensión de Venezuela en el MERCOSUR, 5 August 2017, https://www. mercosur.int/suspension-de-venezuela-en-el-mercosur/, accessed 26 November 2018. 69 Although the original proposal of Bolivia was aimed at negotiating such a treaty; see SELA, ALBA-TCP Fact Sheet, SP/D No 11-15, August 2015. For a comprehensive analysis of ALBA-TCP, see Cusack 2019. 70 Ibid., principle no 7. 71 Ibid. 72 I am referring here to the renegotiation of NAFTA, now USMCA (United States-Mexico-Canada Agreement, the internal approval of which is still pending in Canada and the USA), in order to make it a ‘fair treaty’ for the US-American people (for an analysis of these negotiations from the Mexican perspective, see Rodiles 2018b); the tariffs on aluminium and steel imposed on grounds of national security to the USA’s closest trade partners, i.e. Canada, Mexico, the EU (See A Swanson, White House to Impose Metal Tariffs on E.U., Canada and Mexico, The New York Times, 31 May 2018, https://www.nytimes.com/2018/05/31/us/politics/trumpaluminum-steel-tariffs.html, accessed 20 January 2019), and China (K Collins, All the Threats and Tariffs in the U.S.-China Trade Conflict, The New York Times, 25 June 2018, https://www. nytimes.com/interactive/2018/04/05/business/china-us-trade-conflict.html, accessed 20 January 2019); as well as to the overall WTO unfriendly attitude of the Trump government as shown in the blockage of the nomination of new judges to the Appellate Body (T Embury-Dennis, Trump Could Cause World Trade System to Freeze Up After Vetoing Appointment of Judges, Diplomats Fear, The Independent, 28 November 2017, https://www.independent.co.uk/news/world/americas/ donald-trump-world-trade-dispute-system-veto-judges-appointments-global-freeze-us-diplomatswarning-a8079876.html, accessed 20 January 2019). All of these moves have been justified as trying to invert trade deficits of the USA, a tendency that, according to this rhetoric, is facilitated by an international system of treaties and rules that has turned unfair for the American people.

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most interesting one for this study. Widely considered a populist, Morales is the first indigenous head of State and government of a country that has experienced a long and painful history of racial discrimination and exploitation of its vast indigenous population.73 The populist label attached to him is closely tied to the circumstance of him claiming to represent the ancient peoples of Bolivia and structuring his policies around the aim of defending these peoples against the white elites of the country. Hence, and independently from other factors which may or may not justify this label, it can also be seen as a racially motivated means for discrediting a more than legitimate attempt of transformation and decolonisation of the Bolivian State.74 The constitutional recognition of the diverse peoples (not communities, nor tribes) of the Plurinational State of Bolivia, as established in the 2009 Constitution, should be studied with great interest by those interested in global constitutionalism. It represents one of the most interesting cases of legal pluralism in the world, a post-national turn indeed, centred on an indigenous law that is articulated in a cosmopolitan language of (collective) rights. Lamentably, this laudable post-national constitutional articulation, has faced serious problems in practice. The government of Morales has been accused by several social actors, including indigenous peoples, of not living-up to the expectations of this legal pluralism, because it has centralized important decision-making processes and even disregarded the right to prior consultation of certain peoples. This has been alleged in the case of a big infrastructure project financed by the Development Bank of Brazil (BNDES),75 namely a highway that runs through land occupied by the TIPNIS and which is protected as a national park. The decision to construct this road, massive protests notwithstanding, has led Bolivia’s ombudsperson to criticize Morales’ actions as ‘colonialist’.76 Morales, on his part, has reacted by discrediting the opposition to this project as a form of ‘environmental colonialism’ that does not recognise the indigenous peoples’ desire for development.77 Bearing these contradictions and disappointments in mind, it is nonetheless valid and important to pay due regard to Morales’s foreign policy and approach to international law. On the international plane, Morales’s ‘populism’ is mostly known 73

For an informative account of how Evo Morales came to power, following broader social movements (the ‘gas and water wars’ at the beginning of the 2000s) that brought together low-land and high-land indigenous peoples, and urban groups such as workers and students, see Postero 2015, at 401–409. For an interesting interpretation of the ‘water war’ that combines the events at Cochabamba in 2000 with the history of the colonisation of the Indios, even contrasting some of the legal arguments of Francisco de Vitoria and Bartolomé de Las Casas, see the excellent movie También la Lluvia (Even the Rain) (2010). 74 See Postero 2015, at 414–422. 75 See Smink 2011; on the role of Brazil’s new development agenda in this case, which recalls China’s Belt and Road initiative, see Delgado 2017. 76 See Defensor del Pueblo 2011. 77 D Collyns, Bolivia approves highway through Amazon biodiversity hotspot, The Guardian, 15 August 2017, https://www.theguardian.com/environment/2017/aug/15/bolivia-approves-highwayin-amazon-biodiversity-hotspot-as-big-as-jamaica, accessed 14 March 2019.

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for a similar anti-USA rhetoric and opposition to the Washington consensus as Chavismo in Venezuela. Far less commonly acknowledged, is the fact that in Morales’s era, Bolivia’s diplomacy has championed a series of initiatives which may be described as efforts at ‘decolonising international law’.78 Two major diplomatic moves come to mind: the active role in the adoption of the UN Declaration on the Rights of Indigenous Peoples, in 2007,79 and the initiative, promotion, and construction of what is sometimes referred to as ‘earth jurisprudence’, i.e. the legal principles and policies aimed at protecting the earth, based on a philosophy that departs from the Anthropocene and regards the preservation of nature as a right in and of itself. The latter may be seen as a primarily environmental issue, which it is, but it is, at the same time, indigenous law, based on the Incan cosmovision and ontology of the Pachamama, i.e. the Mother Earth (pacha = earth, universe, time and space, in Quechua and Aymara). Intrinsically related to the respect of the rights of Mother Earth, are the principles of ‘good life’ (teko kavi, in Guaraní) and ‘harmonic life’ (ñandereko in Guaraní), which are also about the right of indigenous peoples to live according to their customs and traditions, importantly including the relationship with the land they occupy, and the use, management and conservation of the natural resources in it (ñandereko also means ‘way of being’).80 The Pachamama is recognized in the Bolivian Constitution of 2009 as a founding principle of the Plurinational State,81 and its rights further developed in the 2012 Framework Law of Mother Earth and Holistic Development for Living Well.82 Most important in the present context, Bolivia has promoted this Andean indigenous law of nature83 with remarkable success at the global level. At Bolivia’s initiative, in 2009, the UN General Assembly proclaimed 22 April as the International Day of Mother Earth,84 initiating with it a whole UN framework

78

Borrowing the expression from Sundhya Pahuja, see Pahuja 2011. See UNGA, United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. GA Res 61/295, 13 September 2007. 80 Similarly, the sumak kawsay (Quechua) or suma kamaña (Aymara), which have a similar meaning to teko kavi, are established in the section on the Pachamama or Rights of Nature of the 2008 Ecuadorian Constitution, promoted by the ‘populist’ government of Correa, see Constitución de la República de Ecuador, Article 74, http://www.wipo.int/edocs/lexdocs/laws/es/ec/ec030es.pdf , accessed 20 January 2019. 81 See Constitución Política del Estado Plurinacional de Bolivia (2009), Preamble, https://www. oas.org/dil/esp/Constitucion_Bolivia.pdf, accessed 20 January 2019. 82 See Ley Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien (Ley Nº 300, 15 October 2012), http://www.mmaya.gob.bo/uploads/Ley_N_300-_Ley_Marco_de_la_Madre_ Tierra.pdf, accessed 20 Janaury 2019. For a critical study of Bolivia’s legal framework of the Pachamama, while at the same time highlighting its importance for global debates and transnational environmental law, see Villavicencio Calzadilla and Kotzé 2018. 83 The Pachamama plays a significant role for indigenous communities from Colombia to Argentina. 84 See UNGA, International Mother Earth Day, UN Doc. GA Res 63/278, 22 April 2009. 79

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called Harmony with Nature,85 that consists of annual debates, Secretary General reports on the advancements of the rights of nature worldwide, and a series of GA resolutions on the subject matter.86 So far, these resolutions have created the Trust Fund for Harmony with Nature, which is also aimed at financing the work of experts on earth jurisprudence,87 acknowledged the Cochabamba draft declaration on the rights of Mother Earth,88 and noted the intention of some States to negotiate a declaration of the protection of the rights of nature, probably based on the Cochabamba declaration.89 Moreover, in the more recent resolutions,90 the topic has been increasingly linked to the sustainable development goals (SDGs) of the 2030 Agenda,91 thus weaving Pachamama into the most interconnected and ubiquitous theme within the UN today. What is perhaps even more remarkable is the transnational impact of this global initiative by a ‘populist’ government. On the Harmony with Nature website, one can find a list with the national legal reforms, enacted laws, legal initiatives, court decisions, and public policies that recognise rights to nature, and nature (or parts of it, as specific rivers and forests) as a legal subject.92 From Argentina and New Zealand over India and Mexico to the Netherlands and the USA, the body of State practice in this regard is growing, especially since the International Day of Mother Earth was proclaimed, in 2009. Mention must be made in this context to a recent advisory opinion of the Inter-American Court of Human Rights (IACtHR) on ‘the risks posed by the construction and use of new big infrastructure to the marine environment and the human habitat of the Great Caribbean region’, and the connected rights to life and personal integrity, which was solicited by Colombia. The IACtHR acknowledged here the ‘autonomous right to a healthy environment’,

85

See UNGA, Harmony with Nature, UN Doc. GA Res 64/196, 21 December 2009; see also the webpage http://www.harmonywithnatureun.org/, accessed 20 January 2019. 86 The most recent one is UNGA, Harmony with Nature, UN Doc. Ga Res 72/223, 17 January 2018. 87 See UNGA, Harmony with Nature, UN Doc. GA Res 66/204, 29 March 2012, and subsequent resolutions. See also the Agreement between Bolivia and the UN Department of Economic and Social Affairs (DESA) on the establishment of this Fund, contained in the exchange of diplomatic notes of 21 and 23 September 2016, at http://files.harmonywithnatureun.org/uploads/upload51.pdf, accessed 20 January 2019. 88 See UNGA, Harmony with Nature, UN Doc. GA Res 65/164, 15 March 2011, and subsequent ones. The draft declaration was adopted at the Peoples’ World Conference on Climate Change and the Rights of Mother Earth, held in Cochabamba, Bolivia, in April 2010. The text of the draft declaration has been circulated as a UN document, see UNGA, Peoples’ World Conference on Climate Change and the Rights of Mother Earth, UN Doc. A/64/777, 7 May 2010. 89 See n 86. 90 See n 86. 91 UNGA, Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc. GA RES 70/1, 21 October 2015. 92 Information at http://www.harmonywithnatureun.org/rightsOfNature/, accessed 20 January 2019.

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independently from a clear nexus with individual rights, and based this recognition on the Pachamama.93 It is important to underline, once more, that the rights of nature are not only about forests, rivers and the like, but importantly include the relations of these ‘things’ with humans and animals. Another UN initiative of the Plurinational State of Bolivia is the recognition of the human right to water and sanitation, which resembles Article 2(1)(5) of the draft Cochabamba declaration, stating that ‘Mother Earth and all the beings of which she is composed have the (…) right to water as a source of life’.94 So, Pachamama is nature, humans, and animals (Article 2(2) and (3) of the Cochabamba declaration expressly mentions the rights of animals to occupy a place and play a role in Mother Earth, and to live free from torture and cruel treatment by human beings95), and the harmonic relations (life) among them (ñandereko). Thus, if there is an incipient global law of the Pachamama, the main driver of which has been a ‘populist’ government, this is a normative evolution that, based on the indigenous cosmology and ontology of the Andean region, holistically connects environmental, human rights, and animal law,96 themes that are not inward-looking, nationalistic, and outdated, but global, cosmopolitan, and avant-garde. One may object that the actual politics of Morales in Bolivia, especially in regard to the construction of the highway which crosses TIPNIS land, as well as the continuation of economic policies highly dependent on the extraction of natural resources, make look these international efforts hypocritical. This may deprive them of some force, indeed. However, the legitimacy of the demands of a State on the international plane is not always and not necessarily diminished by weak performances at home; national and international policies run sometimes in parallel without affecting each other essentially; and, in other cases, the promotion of certain policies at the international level by State authorities can serve to stronger articulate demands inside, displaying a sort of estoppel effect in regard to domestic mobilisation of international rights discourses. In the end, and even seen as a purely discursive matter, this diplomatic demarche by the government of Morales has transformative potentials at the transnational plane that could also boomerang at home.

93 IACTHR, OC-23/17 (15 November 2017), paras 62–63. It must be said, although, that at a closer look the Court’s distinction between individual and environmental rights and the category of an ‘autonomous right’ is probably at odds with the very concept of Pachamama, which is about a non-anthropocentric ontology based on the relational qualities of humans and non-humans. On this ontology, see Descola 2013. 94 See A/64/777, at 12. 95 Ibid. 96 See the symposia on global animal law at AJIL Unbound (parts I and II, volume 111, 2017), and Transnational Environmental Law (volume 5, no 1, 2016), in particular Peters 2016. It must be mentioned, however, that in these articles no reference is made to Pachamama.

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Conclusion

The difference between left-wing populism in Latin America, on the one hand, and right-wing populism in Europe and the USA, on the other, has been acknowledged by political scientists,97 and was recently thematised by Dani Rodrik.98 Rodrik’s explanation on the ‘different types of globalization shocks’ helps to understand why the populist backlash in Latin America has not been against regional integration, nor has it turned ‘the immigrant’ as the foil of the people.99 Analysing populism and international law today is about studying specific aspects of the broader theme of the reactions to globalisation, or, more accurately, to ‘hyper-globalization’.100 It is thus about studying how reactions to accelerated processes of global interconnectedness in the economic, political, cultural, and social realms are affecting the ways international law is approached today (by those who react to these processes, i.e. ‘populists’), and about how these approaches or attitudes may influence the evolution of international law, its specific fields (trade law, environmental law, migration law, and human rights more broadly), as well as its normative and institutional structures (treaty law, customary law, multilateralism, bilateralism). Rodrik, and before him Cristóbal Rovira Kaltwasser, have analysed the political economy of populism by focusing on the demand and supply sides of this phenomenon in the Global North and the Global South.101 Indeed, where people perceive migration as the most threatening evolution to their personal well-being, there is already a popular demand for anti-migration discourse and policies, and the supply is filled by right-wing nationalists à la Viktor Orbán or Donald Trump. In contrast, in places where the most serious threat, perceived or real, is the distribution cleavage deepened by globalisation, there is a demand for the denunciation of the economic winners of globalisation, foreign and domestic elites, i.e. transnational corporations, global financial institutions and nationally located but globally embedded bureaucrats. Arguably, in both cases there is suspicion towards the wire-pullers of global governance, the invisible college of today’s global legalism,102 who push for even greater interconnectedness – as is the case with megaregional economic treaties that are actually about transnational megaregulation103 – through speedy technocratic and automatic (global value changes facilitated by algorithms, e.g.) processes that escape the comprehension of most citizens

97

See, e.g., Rovira Kaltwasser 2015; Verbeek and Zaslove 2017. See Rodrik 2018. 99 Although this could change or may even start changing with Jair Bolsonaro in Brazil, a far-right populist leader in one of the region’s strong-houses. 100 See Rodrik 2012, at 187ff. 101 See Rodrik 2018 and Rovira Kaltwasser 2015. 102 See Posner 2017, at 2–6. 103 On this, see the various contributions in Kingsbury et al. 2019. 98

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who feel left far behind.104 Here, we can find common supply-offers in the North and South, on the left and right, that try to convince people that global deacceleration is still possible.105 This also reveals that time and space can be intertwined when it comes to situating populism: perceptions about a growing inequality cleavage as well as anxieties about the ‘heartland’ need not be always located in the same places, but can become a thing of the past here, while turning into a pressing issue there, or be present at the same time in places where they were previously absent. Rovira Kaltwasser’s and Rodrik’s political economy of populism makes clear that depicting populism in toto as inward-looking, stagnated in the past, and irrationally denying the benefits of economic interconnectedness, is a simplistic reductionism. This sort of reductionism is not only blind to the differences among different populist manifestations in time and place, but also trapped in a blind faith in globalisation as an inevitable evolution that has turned their defenders unable to understand the predictable causes of the rise of populism around the world.106 In particular Rodrik’s analysis reminds us that it is necessary to pay close attention to the specific demands for populism and leave the old arrogance behind that has ridiculed much of these demands as the irrationality of the masses.107 Understanding the relationship of populism with international law, requires also an unprejudiced analysis of the engagement of governments labelled as populists with the outside world. The case-studies undertaken in Sections 2 and 3 have revealed a quite fascinating picture of a proactive and often creative promotion of certain versions of international law. Peronismo’s Third Position, especially at the early years, reveals an avantgarde conception of international law as a means for constructing a semi-formal regional integration, whereby regionalism comes here in the form of a pragmatic strategy of self-preservation and self-assertation during the Cold War. Conceptually enriched later on with the theses of semi-peripheral autonomy of Juan Carlos Puig, the Third Position turned into a more pronounced doctrine of decolonisation enabled by international law’s emancipatory force. The closely connected ‘tercermundismo’ of Luis Echeverría, can be fairly described as a crucial building-block of TWAIL. Although it is undeniable that countries of the Bolivarian alliance have pushed-back on the Inter-American human rights system, in particular Venezuela which withdrew from the most important treaty of the region, the American Convention on Human Rights, in 2012,108 ALBA-TCP also 104

Although, as mentioned by Rodrik, globalised automatic processes are usually not addressed by populist rhetoric, because people tend not to blame machines. 105 In this sense, see also Priester n 10, and accompanying text. 106 Particularly clear on this, see Rodrik 2018. In a similar vein, but based on a different analysis, see Posner 2017. 107 See Chacón n 18. For a powerful, self-critical reflection on the arrogance of intellectuals and the rise of Le Front National in France, see Eribon 2009. 108 See Inter-American Commission on Human Rights (IACHR), IACHR Deeply Concerned over Result of Venezuela’s Denunciation of the American Convention, 10 September 2013, http:// www.oas.org/en/iachr/media_center/preleases/2013/064.asp, accessed 20 January.

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stands, at least theoretically, for the promotion of a post-neoliberal economic integration, an aspiration which is itself largely justified by the real distribution problems augmented by hyper-globalisation. Here, one is well-advised to follow the insights from constitutional lawyers and political scientists in the region that have explained populism on the domestic plane as a welcomed correction-shock to the tremendous inequalities inside Latin American countries.109 This allows us to understand ALBA-TCP not solely as a counter-coalition to the USA – which it is – but also as a corrective effort to reduce globally triggered exclusion, albeit with little to no success – the reasons of which would lead to other relevant questions, but also extent into other open horizons I cannot deal with here, let alone for reasons of space. Finally, the international legal initiatives of Morales’s diplomacy represent a most interesting attempt at decolonising global law. The legal protection of the Pachamama, or the construction of a global law of nature is a global effort in the fight against climate change as it is about human and animal rights. Based on the Andean relational cosmology and ontology that moves beyond anthropocentrism,110 it is a means of inserting the pluralism of indigenous normativity into the emerging structures of global law, and may also be seen as a contemporary manifestation of the TWAIL movement.111 In all these efforts, other crucial aspects of international law have been neglected, but it just cannot be said that Latin American governments that have been labelled as ‘populists’ are by definition in-ward looking and out-dated, as prevailing narratives do. Actually, I have shown that quite the contrary is the case, and the denial of this is partly grounded on an outdated vision of international law itself that has not yet learned, or does not want to recognise, that there are several possible versions of it. Whether this justifies talking about a ‘populist international law’ (in Latin America), or whether we are just describing heterodox approaches to international law, is a matter of labels.

References Altamirano C (2011) Peronismo y Cultura de Izquierda, 2nd edn. Siglo XXI, Buenos Aires Alterio AM (2016) El constitucionalismo popular y el populismo constitucional como categorías constitucionales. In: Gargarella R, Niembro R (eds) Constitucionalismo Progresista: Retos y Perspectivas: Un Homenaje a Mark Tushnet. UNAM/IIJ, Mexico City, 63–94

109

See, among others, Saffon and González Bertomeu 2017. For a radical articulation of populism as a corrective of a malfunctioning representative democracy, see Laclau 2005. 110 For a splendid anthropological account of this relational worldview, see Descola 2013. 111 As argued by BS Chimni, preserving alternative and plural notions of ‘good life’ – like the ones represented by the notions teko kavi and ñandereko, and which form part of the concept of Pachamama – are among the critical tasks before international lawyers; see Chimni 2007, at 513. Work in this sense has been undertaken by post-development authors in Latin America, like Arturo Escobar, see Escobar 2015.

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Alterio AM (forthcoming) Reactive versus Structural Approach: A Public Law Response to Populism. Global Constitutionalism Anghie A (2007) Imperialism, Sovereignty and the Making of International Law. Cambridge University Press, Cambridge Barrett P, Chavez D, Rodríguez-Garavito C (eds) (2008) The New Latin American Left: Utopia Reborn. Pluto Press, London Barrios MA (2008) Perón y el Peronismo en el Sistema-Mundo del Siglo XXI. Biblos, Buenos Aires Bazdresch C, Levy S (1992) El Populismo y la Política Económica de México, 1970–1982. In: Dornbusch R, Edwards S (eds) Macroeconomía del Populismo en la América Latina. Fondo de Cultura Económica, Mexico City, 255–296 Briseño Ruiz J, Simonoff A (2017) La Escuela de la Autonomía, América Latina, y la Teoría de las Relaciones Internacionales. 186 Estudios Internacionales:39–89 Cámpora HJ (1973) Mensaje del Presidente de la Nación Argentina al inaugurar el 98º Período de Sesiones del Honorable Congreso Nacional. Imprenta del Congreso de la Nación, Buenos Aires Castañeda J (2006) Latin America’s Left Turn. Foreign Affairs May/June 2006 Chacón R (2017) Trump y la Economía Política de las Emociones. Foreign Affairs Latinoamérica January/March 2017:53–58 Covarrubias A (2008) La Política Exterior “Activa”…Una Vez Más. XLVIII Foro Internacional:13–34 Cusack A (2019) Venezuela, ALBA, and the Limits of Postneoliberal Regionalism in Latin America and the Caribbean. Palgrave, New York. Defensor del Pueblo (2011) Informe Defensorial respecto a la violación de los derechos humanos en la marcha indígena. La Paz, Bolivia de la Torre C (2010) Populist Seduction in Latin America. Center for International Studies/Ohio University Press, Athens, Ohio de la Torre C (2015) Introduction: Power to the People? Populism, Insurrections, Democratization. In: de la Torre C (ed) The Promise and Perils of Populism: Global Perspectives. University Press of Kentucky, Kentucky, 1–30 Delgado AC (2017) The TIPNIS Conflict in Bolivia. 39 Contexto Internacional 2:373–391 della Porta D (2017) Progressive und regressive Politik im späten Neoliberalismus. In: Geiselberger H (ed) Die große Regression – Eine internationale Debatte über die geistige Situation der Zeit. Suhrkamp Verlag, Berlin, 57–76 Descola P (2013) The Ecology of Others. Prickly Paradigm Press, Chicago de Sousa Santos B (2005) Beyond neoliberal governance: The World Social Forum as subaltern cosmopolitan politics and legality. In: de Sousa Santos B, Rodríguez-Garavito C (eds) Law and Globalization from Below: Towards a Cosmopolitan Legality. Cambridge University Press, Cambridge, 29–63 Echeverría Álvarez L (1975) Quinto Informe de Gobierno al H. Congreso de la Unión, Secretaria de la Presidencia – Dirección General de Documentación e Informe Presidencial, 1 September 1975, https://www.memoriapoliticademexico.org/Textos/6Revolucion/1975QIG.pdf, accessed 26 November 2018 Eribon D (2009) Retour à Reims. Librairie Arthème Fayard, Paris Escobar A (2015) Decrecimiento, Post-desarrollo y Transiciones: Una Conversación Preliminar. 3 Interdisciplina 7:217–244. Esquirol J (2012) Latin America. In: Fassbender B, Peters A (eds) The Oxford Handbook on the History of International Law. Oxford University Press, Oxford, 553–577 Gathii JT (2011) TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography. 3 Trade, Law and Development 1:26–64 Gathii JT (2019, forthcoming) The Agenda of Third World Approaches to International Law (TWAIL). In: Dunoff J and Pollack M (eds) International Legal Theory: Foundations and Frontiers. Cambridge University Press, Cambridge

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Gónzalez-Bertomeu J, Saffon MP (2017) Book review: Jan-Werner Müller, What is Populism? 15 International Journal of Constitutional Law 4:1231–1237 Green R (1977) México: La Política Exterior del Nuevo Régimen. XVIII Foro Internacional:1–9 Hackworth GH (1942) Digest of International Law, Vol. 3. Government Printing Office, Washington D.C. Jaguaribe H (1979) Autonomía Periférica y Hegemonía Céntrica. Estudios Internacionales 12(46):91–130 Kanwar V (2017) Not a Place but a Project. Bandung, TWAIL and the Aesthetics of Thirdness. In: Eslava L, Fakhri M and Nesiah V (eds) Bandung, Global History, and International Law: Critical Pasts and Pending Futures. Cambridge University Press, Cambridge, 140–158 Kingsbury B, Malone DM, Mertenskötter P, Stewart RB, Streinz T, Sunami A (eds) (2019) Megaregulation Contested: Global Economic Ordering after TPP. Oxford University Press, Oxford Laclau E (2005) On Populist Reason. Verso, London Levitsky S, Roberts KM (eds) (2011) The Resurgence of the Latin American Left. Johns Hopkins University Press, Baltimore Macmahone AW, Dittmar WR (1942) The Mexican Oil Industry since Expropriation. 57 Political Science Quarterly 1:28–50 Meyer L (1971) Los Límites de la Política Cardenista: La Presión Externa. 9 Revista de la Universidad de México:1–8 Moneta JC (1979) La Política Exterior del Peronismo: 1973–1976. 20 Foro Internacional 2:220–276 Müller JW (2017) What is populism? University of Pennsylvania Press, Philadelphia Mutua M (2000) What is TWAIL? 94 ASIL Proceedings:31–38 Negretto G (2012) El Populismo Constitucional en América Latina. Reflexiones Sobre la Constitución Argentina de 1949. In: Mijangos P, Rojas R (eds) De Cadiz al Siglo XXI. Doscientos Años de Constitucionalismo en México e Hispanoamérica (1812–2012). Taurus, Mexico City, 343–376 Nuño de la Rosa García J (2010) El altermundismo como proyecto de emancipación social. Del Foro Social Mundial al trabajo de traducción. Astrolabio, Revista internacional de filosofía 11:339–348 Oddone N, Granato L (2005) El Primer Peronismo y la Tercera Posición: Una Visión desde la Autonomía Heterodoxa de Juan Carlos Puig. Centro Argentino de Estudios Internacionales. http://repositorio.ub.edu.ar/bitstream/handle/123456789/2000/articulo_Granato_y_Oddone. pdf?sequence=1&isAllowed=y. Accessed 26 November 2018 Oddone N, Granato L (2008) La “Unión de los Países del Sur” en las propuestas de integración del Primer Peronismo. A propósito de la inclusión de la República del Paraguay de la República Federativa de Brasil (1946–1948). Oikos Revista de Economía Heterodoxa 7(9):11–32 Ojeda M (1976) Alcances y límites de la política exterior de México, 1st edn. El Colegio de México, Mexico City Pahuja S (2011) Decolonising International Law – Development, Economic Growth and the Politics of Universality. Cambridge University Press, Cambridge Perón JD (1952) Discurso a la Asamblea Legislativa, Archivo Histórico del Ministerio de la Educación, 1 May 1952, https://www.educ.ar/recursos/129217/discurso-de-juan-d-peronsobre-tercera-posicion, accessed 26 November 2018 Perón JD (1953) Discurso en el Colegio Nacional de Guerra, Archivo Peronista, 11 November 1953, http://archivoperonista.com/discursos/juan-domingo-peron/1953/discurso-en-escuelanacional-guerra/, accessed 26 November 2018 Peters A (2016) Liberté, Egalité, Animalité: Human-Animal Comparisons in Law. Transnational Environmental Law 5(1):25–53. Posner E (2017) Liberal Internationalism and the Populist Backlash. 49 Arizona State Law Journal (Special Issue):795–819

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Postero N (2015) “El Pueblo Bolivariano, de Composición Plural”: A Look at Plurinationalism in Bolivia. In: de la Torre C (ed) The Promise and Perils of Populism: Global Perspectives. University Press of Kentucky, Kentucky, 398–430. Priester K (2011) Definitionen und typologien des Populismus. Soziale Welt 62(2):185–98 Puig JC (1980) Doctrinas Internacionales y Autonomía Latinoamericana. Universidad Simón Bolívar, Caracas Rodiles A (2017) Il Ruolo del Messico Nell’Ordine Mondiale (e accanto agli USA). LIMES, Rivista Italiana di Geopolitica 8/2017: 141–147 Rodiles A (2018a) Coalitions of the Willing and International Law: The Interplay between Formality and Informality. Cambridge University Press, Cambridge Rodiles A (2018b) After TPP is before TPP: Mexican Politics for Economic Globalization and the lost chance for reflection. In: Kingsbury B, Malone DM, Mertenskötter P, Stewart RB, Streinz T, Sunami A (eds) Megaregulation Contested: Global Economic Ordering after TPP. Oxford University Press, Oxford, 606–622 Rodiles A (forthcoming) International humanitarian lawmaking in Latin America: Between the international community, humanity, and extreme violence. In: Krieger H (ed) International Humanitarian Lawmaking and Legitimacy Rodrik D (2012) The Globalization Paradox: Democracy and the Future of the World Economy. W. W. Norton & Company, New York Rodrik D (2018) Populism and the economics of globalization. 1 Journal of International Business Policy 1–2:12–33 Rovira Kaltwasser C (2015) Explaining the Emergence of Populism in Europe and the Americas. In: de la Torre C (ed) The Promise and Perils of Populism: Global Perspectives. University Press of Kentucky, Kentucky, 189–227 Russell R, Tokatlian JG (2003) From Antagonistic Autonomy to Relational Autonomy: A Theoretical Reflection from the Southern Cone. 45 Latin American Politics and Society 1:1–24 Saavedra M (2004) La Argentina No-Alineada: Desde la Tercera Posición Justicialista hasta el Menemismo (1973–1991). Biblos, Buenos Aires Saffon MP, Gónzalez-Bertomeu J (2017) Latin American Populism: An Admissible Trade-Off between Procedural Democracy and Equality? 24 Constellations 3:416–431. Schrijver N (2017) Permanent Sovereignty over Natural Resources – Balancing Rights and Duties. Cambridge University Press, Cambridge Simonoff A (2016) La Escuela Autonomista: Pasado y Presente. Perspectivas (June 2016):9–19. Taurus, Mexico City Smink V (2011) La Carretera que tiene en Crisis a Bolivia, BBC Mundo, 6 October 2011, https:// www.bbc.com/mundo/noticias/2011/10/111005_bolivia_carretera_tipnis_vs, accessed 20 January 2019 Verbeek B, Zaslove A (2017) Populism and Foreign Policy. In: Rovira Kaltwasser C, Taggart P, Ochoa Espejo P, Ostiguy P (eds) The Oxford Handbook of Populism. Oxford University Press, Oxford, 384–405 Villavicencio Calzadilla P, Kotzé J (2018) 7 Transnational Environmental Law 3:397–424 Woolsey LH (1938) The Expropriation of Oil Properties by Mexico. 32 The American Journal of International Law 3:519–526

Chapter 5

Populism, International Law and the End of Keep Calm and Carry on Lawyering Christine Schwöbel-Patel

Contents 5.1 Introduction........................................................................................................................ 5.2 Internationalists versus Populists: A View from Above .................................................. 5.3 International Lawyers as the Elites: A View from Below ............................................... 5.4 International Legal Organisations: A Structural View ..................................................... 5.5 Unsettling Populist versus Internationalist Binaries ......................................................... 5.6 Populism as a Tactic for a Multilateralism of Solidarity ................................................. 5.7 Conclusion ......................................................................................................................... References ..................................................................................................................................

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Abstract The relationship between populism and international law is mostly conveyed as one of populist-problem versus international law-solution. International lawyers feel called upon to respond to the rise in populism with multilateralism and liberal internationalism in a ‘keep calm and carry on lawyering’ fashion. However, this attitude of us (the internationalists) versus them (the populists) tends to present a geographically Western-centric and epistemologically euro-centric view of populism and international law. Two crucial aspects about populism and international law are overlooked in this narrow understanding: First, the role that international lawyers and institutions have played in institutionalising and upholding neoliberalism and therefore in creating a specific type of nationalist Christine Schwöbel-Patel is immensely grateful to Kelly-Jo Bluen, James Harrison, Milan Markovic, Mavluda Sattarova, Quinn Slobodian and the anonymous reviewers for comments and conversations. Many thanks also to Warwick Law School colleagues who commented on an earlier draft in a staff seminar. All errors remain my own. All websites were last accessed on 6 December 2018. C. Schwöbel-Patel (&) School of Law, University of Warwick, Warwick, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_5

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populist backlash; and second, the progressive forms of populism which may be compatible with a radical internationalism of solidarity. Keywords Populism Solidarity

5.1


International law
Neoliberalism
Multilateralism


Introduction

There have been many events in the past decades which international lawyers have regarded as crises for their discipline.1 None of these previous crises appear to expose the very basis of international law quite in the same way as the widespread doubts and misgivings about multilateralism, often attributed to a rise in populism. From an international law perspective, populism is the most troubling when associated with a favouring of unilateralism and/or bilateralism at the expense of multilateralism. After all, as prominent international lawyer James Crawford observes ‘[T]he post-1945 framework, in detail, if not in principle, is the work of negotiation of treaties, mostly multilateral treaties.’2 A backlash against multilateralism appears, for example, in US President Trump’s ‘America First’ policy which has included the announcement of withdrawal from the Paris (climate) Agreement and the Trans Pacific Partnership (TPP), and threats to pull out of several other multilateral treaties and organisations, including the UN Human Rights Council and the North Atlantic Treaty Organization (NATO). Trump explains his position by referring to US sovereignty, disproportionate funding contributions of the US, and elitism. ‘[O]ur withdrawal from the [Paris climate] agreement represents a reassertion of America’s sovereignty’, Trump stated in 2017.3 Previously, Trump had tweeted of the United Nations: ‘[It] has such great potential but right now it is just a club for people to get together, talk and have a good time. So sad!’4 Suspicions of multilateralism have also been expressed by Russian President Putin, who in 2016 ordered his Foreign Ministry to issue a statement to the effect

1 The recent analysis of crisis and crises arguably began with the 1999 NATO Kosovo intervention which was labelled ‘illegal but legitimate’ by international lawyers and spurred an outpouring of crisis-related articles and books. Much ink was spilled over the 2003 intervention of Iraq by the US and UK alliance. See on crises the enduring account of Charlesworth 2002. Also of note: Bulterman and van Genugten 2013. 2 Crawford 2018, at 6. 3 White House Press Secretary, Statement by President Trump on the Paris Climate Accord, 1 June 2017, https://www.whitehouse.gov/briefings-statements/statement-president-trump-parisclimate-accord/, accessed 11 January 2019. 4 M Rhodan, Here Are All the Times Donald Trump Bashed the United Nations Before Speaking There, Time, 18 September 2017, http://time.com/4946276/donald-trump-united-nations-generalassembly/, accessed 11 January 2019.

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that it was withdrawing its signature from the International Criminal Court.5 The UK’s vote to leave the European Union, a regional multilateral treaty regime, was presented by the Brexit campaign’s ‘Take Back Control’ slogan as a means to reclaim sovereignty. Leaders in many other parts of the world are tapping into voters’ dissatisfaction with the current multilateral regimes of trade, finance, and security and are seemingly promoting and propagating anti-multilateralism through an appeal to ‘the people’. These events have been made sense of under the term ‘populism’ by media commentators, politicians, and scholars. Used both as a buzzword and as a derogatory term, it is mostly ascribed rather than a label claimed.6 Whilst it is ascribed with great confidence, there is also much debate about the nature of populism, including disagreement about its definition. Indeed, the proliferation of the term has led to a whole new economy of populism analysis.7 The preferred definition of populism often depends on what is at stake for the relevant commentator. For international lawyers, the events connect in a new nationalism, an inward-looking politics, which poses unique threats to the international law model. Christine Lagarde, Managing Director of the International Monetary Fund (IMF), has for some time been issuing warnings about the threatening populist backlash,8 which echoes concerns of international lawyers. ‘The greatest challenge that we are facing now is the risk of the world actually turning its back on global cooperation’, she stated at a Centre for Global Development talk in 2016, adding ‘the cooperation that has served us well.’9 This account of an IMF and a benevolent international system which must fight the problems of the national systems stands in stark contrast to other accounts of the IMF and internationalism. The practices of the IMF in maintaining North-South divisions have, in contrast to Lagarde’s version, also been described as replicating and continuing colonial

5

Russia’s military interventions in Georgia and Ukraine, and therewith the ignoring of international treaties on the use of force, are also notable examples of Russia’s move towards unilateralism. 6 For an overview of the different approaches to populism, see Mudde and Kaltwasser 2017, at 2–9. There are some indications that the tide has turned in regard to the derogatory label of populism, and that there may instead be an emerging competition for claiming the term: former US President Barack Obama, who was speaking at a press conference in Canada concluded ‘I guess that makes me a populist’. D Von Drehle, Barack Obama Reveals His Populist Blind Spot, Time, 30 June 2016, https://time.com/4389939/barack-obama-donald-trump-populism/, accessed 11 January 2019. 7 This contribution is of course also part of the populism commentary economy. The populism market includes books, opinion pieces, interviews, special issues, podcasts. Indeed, the fact that populism is a contested term which is both omnipresent and highly politically and morally charged, has led some to question whether the various political events and parties can really all be subsumed under the rubric ‘populist’. See, for example, Brubaker 2017. 8 M Clinch, IMF’s Lagarde says ‘I told you so’ on populist backlash, CNBC, 18 January 2017, https://www.cnbc.com/2017/01/18/imfs-lagarde-says-i-told-you-so-on-populist-backlash.html, accessed 11 January 2019. 9 Mirchandani and Lagarde 2016.

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relationships.10 The use of the IMF by Western powers since the 1980s to project their power into the rest of the world prompted journalist George Monbiot to observe ‘Imperialism didn’t end. These days it’s known as international law’.11 Indeed, the type of globalisation described by Lagarde as ‘economic openness’ is met by increasing scepticism on the Left and on the Right of the political spectrum. A 2016 survey by polling company YouGov revealed that France, the US and the UK had the fewest people believing that globalisation ‘has been a force for good’.12 These are of course also prominent examples of countries in which populism has had a significant impact. We have then two diverging stories of international law: One in which the cooperation of states can fight populism (through internationalism) and one in which populism can be caused through international law. I argue that the conflation of populism and (right-wing) nationalism in Lagarde’s narrative, and connected to this the notion that populism is a ‘new’ (post-2016) phenomenon, is indicative of Western-centrism: populism as something which can only be made sense of as regards a Western experience. Whether President Modi of India, Orban of Hungary, Erdoğan of Turkey, or Bolsonaro of Brazil, the populist leaders in non-Western countries are mostly referred to as their version of/their answer to Trump. The vision of increasing consolidation, integration, and cooperation of the ‘international community’ has in this interpretation of the (right-wing nationalist) populist rise become uniquely disrupted. Interestingly, despite references to a significant disruption, there appears to be a consensus by international lawyers to continue to do what we do, to ‘keep calm and carry on lawyering’, but do it perhaps in a more determined fashion. This response is indicative of the presupposition that populism is an inherently nationalist problem which must be addressed through more and better international law. Populism is, in this interpretation, to blame for having shaken international law’s poster child institutions, the United Nations (UN), the International Criminal Court (ICC), the World Trade Organization (WTO), even the International Court of Justice (ICJ), and of course the European Union (EU) as the most integrated regional form of multilateralism. This presupposition frustrates reflexiveness to view populism as a symptom rather than a cause. It isolates populism to individual leaders – using Western leaders as a bench-mark – and obscures an analysis on what the global causes for the recent populist rise are, and where the complicities and contributions of international lawyers may lie. Departing from the binary of nationalist-populist-problem versus international law-solution allows for an analysis of populism as a global phenomenon, to be

10

Pahuja 2000. G Monbiot, Imperialism didn’t end. These days it’s known as international law, The Guardian, 30 April 2012, https://www.theguardian.com/commentisfree/2012/apr/30/imperialism-didnt-endinternational-law, accessed 11 January 2019. 12 M Smith, International survey: globalisation is still seen as a force for good in the world, YouGov, 17 November 2016, https://yougov.co.uk/news/2016/11/17/international-survey/, accessed 15 January 2019. 11

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understood in the context of inequalities of wealth and opportunities.13 Instead of viewing international law as the solution to populism, international law is placed at the centre of the global neoliberal programme.14 In other words, (neoliberalism’s) multilateralism is partly causing populism. Laying bare the geographically and epistemologically narrow understanding of populism by international lawyers reveals potential possibilities in populism. Populism, it emerges, could be a tactical tool for an internationalism of solidarity. A broader understanding of populism, particularly in the tradition of Left populism, opens up a space for a populism which has the potential to resist excesses of neoliberal marketisation and can act as a vehicle to demand forms of redistribution. Such a tactical populism is enabled through a notion of solidarity with those who have been exploited or disenfranchised. While populism may not be sufficient for a strategy for social change, it can, I argue, be a form of mobilisation for tactical moments of resistance.15

5.2

Internationalists versus Populists: A View from Above

Because of its many instantiations, populism is described by Cas Mudde and Cristóbal Rovira Kaltwasser as a ‘thin-centred ideology’. Populism ‘can offer neither complex nor comprehensive answers to the political questions that modern societies generate.’16 In this sense, it is more a ‘way of doing politics’ than an ideology.17 Consequently, populism almost always appears attached to ‘thick-centred’ ideologies such as fascism, liberalism or socialism. In its most stripped down version, populism includes an appeal to ‘the people’ and a denunciation of ‘the elite’.18 Moreover, it is often associated with ‘anger’ or ‘resentment’.19 Ernesto Laclau and Chantal Mouffe, who theorise populism from the perspective of discourse theory, have a more hopeful view: They understand populism as a possible emancipatory means of democratic participation; as a way of formulating demands, and therefore a potential means to radical democracy.20 Critics (generally those commenting on populism in the West) associate populism with authoritarianism, anti-immigration, and xenophobia. Critics of Left populism (generally those commenting on populism in Latin America) associate it with Chantal Mouffe, states: ‘The “populist moment”, therefore, is the expression of a variety of resistances to the political and economic transformations seen during the years of neoliberal hegemony.’ Mouffe 2018, at 12. 14 For an overview, see Brabazon 2016. 15 The key distinction relied on here between strategy (as longer-term structural objectives) and tactics (as short-term objectives) is set out in Knox 2010. 16 Mudde and Kaltwasser (n 6) at 6. 17 Mouffe (n 13) at 11. 18 Mudde and Kaltwasser (n 6) at 5. 19 Mishra 2017. 20 Laclau 2005; Mouffe and Laclau 1985. 13

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economic mismanagement.21 That is not to say that Left populism is non-existent outside of Latin America. In Europe, Anti-EU (and particularly anti-austerity) sentiments led to the rise of populist Prime Minister Tsipras in Greece and the far-Left populist Podemos party in Spain. For international lawyers, who generally concern themselves with inter-state relations, populism is viewed as a ‘recent’ phenomenon (mostly post 2016), and is most troubling when it is paired with nationalism. Populism’s ugly anti-international law face is the notion of ‘taking back’ the sovereignty ceded to international agreements and bodies.22 ‘Populists often target international law and undermine its legitimacy and importance’, observes Tamar Hostovsky Brandes.23 Elaborating on this view from the perspective of the protection of international human rights law, Philip Alston has an impassioned take on the situation: ‘The populist agenda that has made such dramatic inroads recently is often avowedly nationalistic, xenophobic, misogynistic, and explicitly antagonistic to all or much of the human rights agenda.’24 Alston describes scenarios by which ‘coalitions from hell’ will emerge to challenge international institutions.25 Calling for innovative thinking and creative strategising, Alston proposes human rights advocates should ‘broaden their outreach, while not giving up on the basic principles’.26 Rather refreshingly, Alston also urges for an introspection of human rights practice and theory, including a focus on social rights and rising inequality.27 However, this is very much articulated in an ‘us’ versus ‘them’ register, particularly as regards Alston’s point about persuasion: ‘Next, we need to acknowledge the need to devote more time and effort to being persuasive and convincing, rather than simply annunciating our principles…’28 Who are we and what are our principles?29 The account becomes narrower still when Alston suggests that every one of us should reflect on which contributions we can make: ‘It might be merely a financial contribution [to human rights groups and advocates]’.30 A rich critical tradition in human rights law has emphasised that such individualised ideas of human rights

21

Regarding the geographic divide, see Mudde and Kaltwasser (n 6). Notably, international law accommodates for a potential receding internationalism; being a regime based on consent it also facilitates the withdrawal of consent. Most treaties include provisions for withdrawal; if there are no explicit provisions, then this can be assumed through Article 56 Vienna Convention on the Law of Treaties. On withdrawals at the current political conjecture, see Crawford (n 2). 23 Brandes 2018. 24 Alston 2017. 25 Ibid., at 3. 26 Ibid., at 2. 27 Ibid., at 6. 28 Ibid., at 11. Emphases added. 29 It is relevant of course that the article is a printed speech, so the audience addressed may have been the ‘we’ in the room. 30 Alston (n 24) at 14. 22

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activism often obscure structural problems,31 as Alston in his position as UN Special Rapporteur on Extreme Poverty and Human Rights will be conscious of. Ultimately, Alston views the current conjecture as ‘extraordinarily dangerous times’ to which a response must be found.32 In international economic law, meanwhile, commentators focus on free trade, viewing (nationalist) populism, particularly of Trump’s administration, as a threat to trade liberalisation.33 The underlying assumption is that trade liberalisation must be protected because ‘an open international order facilitates economic growth, encourages the flow of knowledge and technology, and draws states together.’34 The North American Free Trade Agreement (NAFTA) renegotiations ‘in the midst of populist bluster’35 are seen as a test case of nationalist populism which is explicitly connected to ‘suspicion towards foreigners’.36 Within this debate, Simon Lester and Inu Manuk’s view is fairly typical: They suggest a narrow reform view, namely to focus on the rules in the NAFTA agreement and to consider ‘what could be made better.’37 James Crawford’s commentary on the contemporary political discourse in international law interestingly omits any explicit mention of populism. Whilst he does not name it, the spectre of populism certainly haunts the commentary. Referring to withdrawals from international treaties, and the legal mechanisms which regulate such withdrawals, Crawford speaks of the dangers of eroding international legal norms ‘in the current political climate’.38 Crawford ends with an appeal to ‘defend the communitarian values of international law’ against ‘nativism and unilateralism’.39 Anthea Roberts concludes her highly acclaimed recent book Is International Law International? by considering the populist challenge to international lawyers: ‘In a growing number of Western states, populism has challenged globalism and nationalist and anti-immigration rhetoric is on the rise.’40 The mention of the destabilisation of Western states as challenging globalism is striking against the background that Roberts is critical of international law being viewed as exported ‘from the West to the rest’. Even more striking is that Roberts situates the

31

See for example Marks 2009; Hopgood 2013; Cheah 2007. Alston (n 24) at 14. 33 Lester and Manak 2018. 34 Ilkenberry 2018. 35 Lester and Manak (n 33) at 169. 36 Ibid., at 156. 37 Ibid., at 169. Arguably, this is precisely what occurred in the revised United States-Mexico-Canada Agreement (USMCA), also referred to as ‘NAFTA 2.0’. 38 Crawford (n 2) at 21. 39 Ibid., at 22. 40 Roberts 2017, at 322. 32

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explanation of the (Western) rise of populism in global economics but omits the link between global economics and international law, i.e. the role that international law has in upholding, legitimising, and regulating global financial markets whilst failing to include meaningful redistributive mechanisms. International lawyers, and many other liberal internationalists, therefore tend to view populism as the opposite of internationalism. Generally, an assumption of a binary is made: one is either internationalist or populist. Internationalism as a desired mechanism for peace and justice is contrasted with nationalist, inward-looking and xenophobic populism. The frequent conflation of populism with nationalism and xenophobia is in line with many mainstream accounts of populism. Princeton Politics Professor Jan-Werner Müller’s book What is Populism? is particularly influential in the populism commentary economy. Although acknowledging different types of populism, Müller presents populism in derogatory terms, deeming populists to ‘thrive on conflict’, as attempting ‘to hijack the state apparatus’, and systematically aiming to ‘suppress civil society’.41 He also notes that populism is distinctly irreconcilable with democracy. In these slightly more hysterical accounts of populism, a ‘new world disorder’42 has been proclaimed as well as a ‘post-human rights era’.43 This fatalistic reading of populism contrasted with the merits of the old system is also presented by The Economist, which distinguishes between ‘open societies’ and ‘closed societies’.44 Those states and political parties which promote free trade and movement of people are ‘open’, and those which are anti-globalist (whether on the Left or the Right) are ‘closed’. The latter are, according to The Economist, ‘the gravest risk to the free world since communism. Nothing matters more than countering it.’45 After all, ‘[T]he multilateral system of institutions, rules and alliances, led by America, has underpinned global prosperity for seven decades’.46 International law’s response to populism is, in line with the mainstream debates and media, therefore framed as a response to nationalist sovereignty - an aggressive and ‘new’ type no less. International lawyers are, with a few notable exceptions,47 mostly proposing a more robust international law and a strengthening of the existing order – an order which has overall served them well.

41

Müller 2017. M Wolf, The new world disorder and the fracturing of the west, Financial Times, 2 January 2018, https://www.ft.com/content/54104d98-eedd-11e7-ac08-07c3086a2625, accessed 11 January 2019. 43 Wuerth 2017, at 279. 44 The Economist, The new political divide, 30 July 2016, https://www.economist.com/leaders/ 2016/07/30/the-new-political-divide, accessed 11 January 2019. 45 Ibid. 46 Ibid. 47 See, for example, Howse 2018. 42

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International Lawyers as the Elites: A View from Below

International lawyers tend to speak in universals; they speak of the ‘international community’, and, in the case of International Criminal Law, invoke ‘humanity’. Whether through the lens of state sovereignty, groups or the individual, there is an inherent international law tradition to speak for others. Indeed, there is (perhaps ironically) a populist element in international law’s invocation of universals: International law and its advocates often speak ‘for the people’. And yet, international lawyers are themselves often part of an elite, educated in the dominant languages and elite law schools, traveling the world, operating as a part of global networks. Eric Posner has commented on the populist backlash from this perspective, stating that international law is vulnerable because it is technocratic and has been advanced by the establishment: ‘international law is rule by technocracy, and relies on trust and mutual goodwill, while populists see corruption and advantage-taking all around them, and direct their ire at the experts’.48 The vast majority of international lawyers commenting on populism are either part of an elite or are entangled in the processes which sustain and expand the inequality of opportunities. International lawyers in the neoliberal age often operate at the very heart of the system which is creating inequalities. Bar an influential set of Third World Approaches to International Law (TWAIL) scholars and a few other examples, international law is dominated by scholars from the Global North, or at least those educated in the Global North. International lawyers have created a powerful space in the competitive arena of globalisation. Not only has their discipline benefited from globalisation, they - we - have benefited from globalisation. This may account for the ahistorical view of international lawyers on populism. Not only is the imagination of multilateralism limited to a Western-centric multilateralism which responds to crises of and in the West, phenomena such as populism which have a history outside of the West are not sufficiently considered from the perspective and experiences of the Global South. It is interesting, for example, that there have been recent withdrawals from multinational treaties from left-wing populists in the Global South, but these have generally not been described as part of the populist move in international law in the vast populism commentary. As populism is regarded as a recent right-wing phenomenon, Venezuela’s left-wing nationalism is mostly ignored within the diagnoses of populism in the 21st century. Venezuela’s withdrawal from the International Centre for Settlement of Investment Disputes (ICSID) convention and the American Convention on Human Rights (ACHR), its announcement of withdrawal from the Organization of American States (OAS) and its notification of non-participation in proceedings against it at the ICJ have distinct populist features.49 Latin American left-wing (authoritarian) 48

Posner 2017, at 2. Alexander Wentker describes Venezuela’s withdrawals as ‘an expression of a structural pattern in its own long-standing critical stance towards international adjudication and international 49

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populism has seemingly evaded the international legal radar when it comes to analysing the contemporary populist backlash. Global South experiences, if they are not directly comparable with a Western experience, continue to be seen as ‘local’ by many international lawyers. Often, international lawyers are not aware of the privileged world they inhabit, even if they are working for its institutions, and this is not entirely their own fault. For the myth of international law’s apolitical nature has been carried down as a myth at the very core of the discipline. This same myth has allowed for legally sanctioned military campaigns to be described as acts of ‘humanitarianism’; it has allowed exploitative bilateral investment treaties to be considered as leading to ‘good governance’ in host states; it has allowed for the narrative of ‘free’ trade to circulate; and it has allowed the extrapolation of Western liberal political models to the international sphere to be described as ‘global constitutionalism’. Against the background of the myth of the apolitical and neutral, a causal relationship between international law and nationalist populism becomes remote.

5.4

International Legal Organisations: A Structural View

The current anti-elitism associated with a populist backlash is arguably more than a general antipathy towards technocracy of which international lawyers are a part. The more astute observations about contemporary populism describe it as a post-financial crisis anti-elitism, a position which requires a structural critique.50 The backlash against elites must then be placed within the context of powerful regional and international institutions which make seemingly undemocratic decisions whilst protecting financial capital by shielding large multinational corporations from taxation. Particularly since the global financial crisis, ordinary people have begun to doubt whether their politicians have a great deal of power in the face of global financial power players, such as the large corporate banks which were ‘too big to fail’, and the multinational corporations which are exempted from taxation. Ordinary people learned that only the very wealthy in western countries benefit from globalisation, while most people have not been able to reap the benefits – or have indeed been harmed. Globalisation has failed to deliver on its promises. Within this context doubts and misgivings about multilateralism have fallen on fertile ground. A complex web of institutions and norms has failed at redistribution of opportunities and wealth, with international lawyers at the helm. ‘[I]n the neoliberal age, international law furnished no redistributive tools among states, and few activists or

organisations more generally’. In ‘Venezuela’s Non-Participation Before the ICJ in the Dispute over the Essequibo Region’, Wentker 2018. 50 Mouffe (n 6).

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governments tried to build them,’ observes Samuel Moyn.51 Not only this, international law has also constructed, through multilateralism, the very unequal international legal order that requires radical redistribution. Rather than seeing populism as isolated national phenomena, the international dimension reveals global structural processes. Multilateralism has proved to be a key tool for economic expansionism, allowing competition for power, resources and governance to create an increasingly polarised world. As we have learned from recent scholarship in international law, the discipline and its central principles were not only constituted by asymmetries of power between colonial powers and colonial subjects but continue to create and naturalise these asymmetries in today’s norms and institutions.52 Curiously though, anti-multilateralism has largely not played out in an anti-neoliberalism tout court. Rather, only some aspects of globalisation are being rejected whilst neoliberalism’s propensity for marketing continues to sell the dream of opportunity. Further instructive examples of market-friendly multilateralism, which deepened complicities of states with neoliberalism, are the structural readjustment programmes of the IMF in the 1980s and 1990s. During this period, the International Monetary Fund was instrumental in advancing the ‘Washington consensus’ in Latin America and other countries which were being integrated into a global financial system.53 When countries experienced debt or currency crises, the IMF promised loans conditional on market-based reforms. Such reforms forced an opening up of the economy to global trade, foreign investment, and a borrower’s economy. The IMF requires members ‘to allow their currency to be exchanged for foreign currencies freely and without restriction.’54 Loans were (and continue to be) attached to a particular type of austerity politics, demanding a scaling down of public spending, and therefore a squeeze on public healthcare, education, community projects, and other public services. More recently, austerity packages have not only been implemented with the promise of development of states in the Global South, but have also been implemented to bail out countries of the West, such as the Greek bailout. The IMF in conjunction with the German government, the European Central Bank, and officials of the European Union, forced austerity in return for rescue loans and bailouts. Tax and pension reforms have shifted the burden onto the general (tax-paying and benefits-claiming) population.

51

Moyn 2018, at 196. See, instructively, Anghie 2005. 53 The term ‘Washington Consensus’ is the name that economist John Williamson gave in 1989 to a list of ten policy recommendations for countries to reform their economies. See Williamson 1993. On the mutations and shrinkages of the ‘consensus’, see M. Naim, Fads and Fashion in Economic Reforms: Washington Consensus or Washington Confusion?, International Monetary Fund (IMF), 26 October 1999, https://www.imf.org/external/pubs/ft/seminar/1999/reforms/Naim. htm, accessed 14 January 2019. 54 D Driscoll, The IMF and the World Bank: How Do They Differ?, International Monetary Fund (IMF), 1 June 1995, https://www.imf.org/external/pubs/ft/exrp/differ/differ.htm, accessed 14 January 2019. 52

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In the understanding of the imposition of IMF requirements, it is significant that decision-making at the IMF lies disproportionately with the economically strong states of the Global North. The quota system at the IMF means that each member state is expected to provide capital based on their global economic standing. Each state is given Special Drawing Rights (SDRs) in relation to their quota.55 Financially stronger states will have higher quotas and more SDRs, enabling them to outvote the poorer states. The US has over 17% of total SDRs. Algeria and Côte d’Ivoire have just 10% and 3% respectively of the votes that France has, their former coloniser. Kenya and Uganda together have a mere 4% of the British vote.56 The World Bank complemented this effort with ‘rule of law’ aid projects that sought to liberalise the economies of developing countries in the image of Western countries.57 Global South states often perceived these policies of the major international economic institutions coercive and unfair.58 International financial institutions, set up through multilateral treaties, have had a key role to play in the disquiet which has prompted an anti-globalisation backlash. Particularly since the global financial crisis, many corporate and finance heads have faced accusations of taking unnecessary risks, behaving unethically, failing to share the fruits of enterprise, and shifting capital into tax havens. This has led to a growing public anger against elites, particularly in light of the ‘one percent’ prospering at the expense of the ‘99 percent.’ In short, the global financial crisis and the subsequent austerity policies left little doubt that the global financial system is constructed to uphold and increase the wealth and influence of a small corporate elite at the expense of the rest. The problem is that many international lawyers saw and continue to see themselves as observing rather than facilitating these processes. There are notable parallels with the way in which Guantanamo Bay was constructed as a ‘legal black hole’, a place where international law is suspended.59 Fleur Johns, among others, debunked this myth, demonstrating that the regime is in fact one of ‘elaborate regulatory efforts by a range of legal authorities’.60 Such elaborate regulatory efforts of forms of expertise have a distancing effect from democratic processes and are often designed to serve the interests of hegemonic states.61 Depoliticisation is itself political. Whether in Guantanamo Bay or at the IMF, the depoliticisation at work

55

Rapkin 2006. http://www.imf.org/external/np/sec/memdir/members.asp5. 57 Krever 2011. 58 See the conversation, particularly points made by Muthucumaraswamy Sornorajah in Leon and Ranieri 2013. China has regarded such financialisation as an opportunity, establishing the Asian Infrastructure Investment Bank in 2015. 59 Steyn 2004. 60 Johns 2005, at 614. 61 Benvenisti and Downs 2010. 56

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exonerates international law’s role ‘in creating or sustaining the ills from which we are now to be saved’.62 In his incisive examination of neoliberalism, Quinn Slobodian places the rise of neoliberalism historically in such efforts to ‘insulate the market’ from democratic pressures.63 Correcting the widely held assumption of neoliberalism as promoting the ‘free market’, neoliberals and international lawyers conceptualised law’s role as encasing the market.64 Institutions such as the IMF and the World Bank, and governance structures such as trade treaties and the WTO have become almost impermeable to democratic processes. Slobodian casts light on the rise of a set of individuals, including international lawyers, who gave the nation state a key role in their vision of global neoliberalism. This turns the assumption on its head that multilateralism is always internationalist and never nativist. In addition to dispelling the preconception that globalism cannot be nativist, Slobodian also unsettles the preconception that nationalist populism is always against free market globalism. The rejection of economic globalization in right-wing populist party programmes is, according to Slobodian, ‘highly selective’.65 Not only do we see such selectivity at work with Brexiteers favouring the WTO over the EU as a trade regime, but also in regard to more general ideas about movement across borders: Capital and goods are encouraged to be free whilst people should not be free to move. Nationalist populism, argues Slobodian, is therefore not to be understood as in opposition to neoliberalism but rather operating within neoliberalism.66 Despite the backlash against elites, the promise for the potential of wealth-generation through international institutions clearly continues to have resonance.67 International law as multilateralism in its embrace of neoliberalism has therefore not only created economic inequality, it has also – as forcefully argued by China Mieville about intervention in Haiti – created terror.68 Using intervention through multilateralism in Haiti as a case study, Mieville demonstrates the imperial interventions through international law and its institutions and the attendant silence around their critique. Rather than an image of international law as a response to

62

Marks 2006. Slobodian 2018a, at 4, 5. Slobodian emphasises the influence of German-Austrian ordo-liberals in what he calls the ‘Geneva School’. 64 For example, international investment law encases the market by protecting foreign investors from forms of expropriation, and equitable redistribution of profits. 65 Slobodian 2018b. 66 Ibid. 67 The model of the WTO, for example, is favoured by ‘Brexiteers’ in comparison to the EU. Indeed, a recent article referred to the WTO system as providing ‘protections under international law’. D Collins, Why a no-deal Brexit is nothing to fear, The Spectator, 4 August 2018, https:// www.spectator.co.uk/2018/08/whos-afraid-of-the-wto/, accessed 11 January 2019. 68 Mieville 2009. 63

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populism, these studies indicate a different reading of international law; namely, as a set of individuals and institutions who are creating and upholding the very neoliberal structures which are leading to anti-globalisation sentiments.

5.5

Unsettling Populist versus Internationalist Binaries

In order to grasp a more nuanced notion of populism, its conflation with nationalism must be unsettled and understood. This will then allow a contextual analysis of when they do appear together, which undoubtedly they do. Such an analysis can be undertaken conceptually and historically: Benjamin de Cleen, a scholar of Communication Studies, conceptually disentangles populism and nationalism by stressing populism’s vertical dimension. Populist politics construct ‘the people’ by opposing them to ‘the elite’. Nationalism, in contrast, is built around a horizontal dimension. Nationalist politicians claim to represent the nation by distinguishing between those who are ‘in’ and those who are ‘out’ of the nation.69 Ethnic nationalism appeals to ‘the people’ as a homogenous group with one identity, which spurs many forms of exclusion, most notably on the basis of race. For this, ‘ethnic nationalism is to blame, not populism’.70 Historically, populism has not always been nationalist, nor necessarily right-wing. If we consider populism within a longer history than its fairly recent appearance in the West we find a far richer meaning of populism. In contrast to such recent polemics such as ‘The Great Regression’, the modern history of populism is generally situated in late 19th century progressive movements. Indeed, Western commentators need not even venture outside of the West for a broader understanding. In the 19th century, the US anti-industrialist populist movements were distinctly progressive movements.71 The emerging ‘People’s party’ of 1890–1891 ‘stood for the interests of ordinary people – farmers and workers – against the robber barons in the privately-owned banking, oil and railway industries’.72 Russia too has a history of populism which dates back to this period. Here, populists opposed the Tsarist regime and the inequalities emerging with industrialisation.73 69

De Cleen 2017. B De Cleen and A Galanopoulos, Populism, nationalism and transnationalism, Open Democracy, 25 October 2016, https://www.opendemocracy.net/can-europe-make-it/antonis-galanopoulosbenjamin-de-cleen/you-can-use-populism-to-send-migrants-back, accessed 11 January 2019. 71 For a brief overview (in German) see Möller 2018. Möller references Hofstadter 1955 and Canovan 1999. See also D McKnight, Populism isn’t a dirty word – it’s time for the left to reclaim it, The Guardian, 8 April 2018, https://www.theguardian.com/books/2018/apr/08/populism-isnt-adirty-word-its-time-for-the-left-to-reclaim-it, accessed 11 January 2019. 72 D McKnight, Populism isn’t a dirty word – it’s time for the left to reclaim it, The Guardian, 8 April 2018, https://www.theguardian.com/books/2018/apr/08/populism-isnt-adirty-word-its-timefor-the-left-to-reclaim-it, accessed 11 January 2019. 73 In contrast to the US variant, this movement did not call itself populist, although a small middle-class group who called themselves ‘The People’s Will’ assassinated Tsar Alexander II. 70

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These antecedents to the Russian Revolution idealised the Russian peasant village and viewed the nobility’s extravagance and industrialisation as a threat to this way of life.74 Latin America, ‘the region with the most enduring and prevalent populist tradition’,75 first experienced populism against the background of the Great Depression in 1929. As a response to industrialisation and colonisation, there was a notable backlash against those elites reaping the benefits at the expense of the workers, peasants, and middle classes. Populism involved these voices in the political system.76 Profound economic crises in the 1980s, which led to the bail-out interventions of the IMF, spurred a further wave of populism, which typically ended in an acceptance of the IMF’s Washington Consensus terms – a populism within neoliberalism similar to the type we are encountering in the West today.77 The rich history of populism in Latin America meant that for some decades the term was overwhelmingly associated with that region. Indeed, quite remarkably in light of today’s tenor of the debate, an article in The Economist from 2006 criticises the fact that ‘many observers […] use “populist” and “leftist” interchangeably’.78 The extreme shift in the narrative in the past decade from populism as left-wing to populism as right-wing is striking, and highlights the ahistorical use of the term since 2016. It is a further reminder of the urgency to foreground voices from the Global South. Scholars from outside of the Global North have a unique knowledge of populism, from the Left and the Right, which is key to understanding the concept and the political, economic, and cultural context in which it tends to arise. What we learn from this very brief historical overview is that populist movements have historically appeared as a response to rising inequality. Interestingly, the Western history of populism bears some similarities with the contemporary left-wing variants of populism. International law’s dominant history however fits more neatly within an understanding of populism as nationalist. This is inextricably linked with an optimism about multilateralism: Multilateralism is considered in the context of a history of internationalism overcoming (the conflict, over-politicisation, and deprivation of) nationalism. Alston observes that ‘[t]he modern human rights regime emerged out of the ashes of the deepest authoritarian dysfunction and the greatest conflagration the world had ever seen.’79 Multilateralism with an international outlook has been regarded as the instrument to create or maintain international peace and stability in the face of potential unilateral action. The post-1945 institutions play a fundamental role in the imaginations of many international lawyers as securing peace and security: The UN for peace and security, the Human Rights Covenants for human

74

Figes 2014, at 18, 19. Mudde and Kaltwasser (n 6) at 27. 76 Conniff 1982, Conniff 1999, Dornbusch and Edwards 1991. 77 Slobodian (n 63). 78 The Economist, The Return of Populism, 12 April 2006, https://www.economist.com/theamericas/2006/04/12/the-return-of-populism, accessed 11 January 2019. 79 Alston (n 24) at 3. 75

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rights,80 the General Agreement on Tariffs and Trade (GATT) and its successor the WTO for trade. The institutions in this narrative were briefly halted in their progress through the Cold War era, and finally came into their own after the collapse of the Soviet Union. Not only this, they also multiplied with new institutions such as the ICC which allowed for a further significant overcoming of national sovereignty in the long-protected area of head of state immunity.81 Populism in this version of international legal history takes on a central role as the predecessor of fascism which led to the devastation of the Second World War – and ultimately necessitated the multilateral system. International law’s progress narrative is not only about institutions, but also a narrative of ‘Great Men versus Evil Men’. Populism, also when presented in the media, is associated with the hyper-masculine type of action-centred reactionary politics, ‘build the wall’, over a slow, elitist bureaucracy (‘drain the swamp’).82 Populist leaders tend to be moulded into preconceptions about fascist leaders. Certainly, scepticism of or withdrawal from multilateral treaties has a distinct performative element. Indeed, the performance is often the main focus of populist politics in relation to international law, especially with long exit periods delaying the effectiveness of withdrawal from treaties,83 or the legally largely inconsequential ‘unsigning’ of a treaty. Much like responses to previous potentially disrupting changes, the ‘keep calm and carry on lawyering’ mentality amongst international lawyers is to be understood as a distancing from machismo politicians by invoking internationalism and measured expertise. However, the focus on the spectacle as that which must be opposed also often invites a schematic response. When international lawyers place the rise of populism as exogenous to international law, there is little need to go beyond spectacular figures and to question the institutional and political configurations which have caused the popularity of said populist leaders and what they are saying. This brief historical overview provides some clues why the interpretation of populism as conflated with nationalism and anti-internationalism has had such purchase amongst international law commentators. It also highlights that when history is raised by international lawyers as a place to learn about our contemporary

80 International Covenant on Civil and Political Rights (1966), 999 UNTS 171 (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (1966), 993 UNTS 3 (‘ICESC’). 81 See Alston (n 24) and Crawford (n 2) for this general narrative of international law’s history and the current challenges to it. 82 This is certainly not confined to the Western world; in Latin America’s history of populism, this was the figure of the military caudillo, or strongman. The Economist, The Return of Populism, 12 April 2006, https://www.economist.com/the-americas/2006/04/12/the-return-of-populism. The women leaders such as Marine Le Pen in France or Alice Weidel in Germany should not be side-lined in this analysis. For a brief overview of female populist leaders, see Mudde and Kaltwasser (n 6) at 68–70. 83 The withdrawal from the Paris Agreement does not become effective until 2020; Brexit had a two year withdrawal period.

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conjuncture, it is a rather narrow and Western-centric history, typically referring to the 1930s and 1940s as the only times from which we can learn.84 The critical (legal) tradition has aimed to draw attention to the necessity for the interrogation of structural problems, root causes,85 and the appeal of the spectacle.86 The perception of disruption and the perceived moment of disorientation is ultimately only disrupting and disorienting for those international lawyers who believed that progress was inevitable, and that international law was contributing to development, greater peace and social justice. Critical legal scholarship, and particularly TWAIL scholarship, has long drawn attention to many of the issues which are now being more widely raised in the populist political climate.87 This includes the lack of democratic accountability of international institutions, the racialization of those who are considered as undeserving of redistribution, the depoliticised nature of international law and its institutions, and the inequality created through globalised financial capital. Given that the international law analysis to date often begins and ends with the individual (Trump often book-ends the discussions), there is no deeper interrogation of international law’s potentially problematic structures. The dominant historical narrative omits the deep divisions which have been created in the world, not despite of these institutions but because of them. It therefore misses an understanding of the sometimes legitimate grievances of people who have turned to populism.88 Worse still, by propounding the view that populism is inherently nationalist and xenophobic and a phenomenon exogenous to international law, international lawyers are expressing (perhaps unwittingly) a nostalgia for a multilateral international law which has been at the heart of creating inequalities. With this, international lawyers are positioning themselves in line with the very elites which are so despised from both the Right and the Left. The ‘keep calm and carry on lawyering’ response to populism therefore upholds a false myth of populist-problem and international law-solution. This dominant narrative is a condition of international law’s preoccupations with Western history and Western crises. Granted, there are acknowledgments by international lawyers and other key commentators that the system is flawed; but they are commonly accompanied by calls to strengthen it. In a recent interview on populism, Madeleine Albright summarised this position as follows: ‘Flawed though our institutions may be, they This is most evident in the catalogue of ‘core crimes’ which make up the main body of contemporary international criminal law. See Schwöbel-Patel 2019. 85 The question of root causes, and its possible elisions, is discussed in Marks 2011, as well as in respect of individual accountability in Krever 2013, at 719. 86 On experts and politicians as part of a ‘single celebrity class’, see Howse (n 47). 87 This regards rising inequality through development, see Pahuja 2011; as regards the power inequalities in international relations see, for example, Simpson 2004; as regards the connections of imperialisms and race, see Knox 2016; as regards the creation of poverty, see for example, Salomon 2008. 88 ‘Legitimate grievances’ are a central theme in Michael Sandel’s take on populism, Sandel 2018. 84

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are the best that 4,000 years of civilisation have produced and cannot be cast aside without opening the door to something far worse.’89 Given the lack of redistributive capacities in current international institutions run and imagined by international lawyers, the repeated avowals of there being no alternative sound hollow to those on the wrong side of the divide.

5.6

Populism as a Tactic for a Multilateralism of Solidarity

International lawyers are therefore right to diagnose a crisis, but the crisis is not populism itself; populism is the symptom of a global crisis of distribution and a deeply polarised world created and upheld by international legal structures. Ultimately, the ‘keep calm and carry on’ approach is not only obscuring biases and complicities, it is also stifling possible alternatives which tackle inequality in a meaningful manner, which are more sensitive to finite natural resources and the trusteeship over the planet. Rather than viewing populism as part of the problem, populism could instead be leveraged as a tactic which supports a strategy of solidarity among the oppressed. In its anti-elitism and the desire to speak to ‘the people’, populism could be channelled as a practice of ‘siding with the less well-represented, the forgotten or ignored’.90 Rather than interpreting the anger and resentment as erratic or regressive, one might instead read the appeal of populism to be an expression of a longing for inclusion and solidarity. In societies marked by the collapse of welfare functions of the state and the erosion of public spaces, populism can be read as the craving of the masses for public protection, public authority, public assistance and public power.91 Understood in this way, populism is a demand for social justice. Neoliberalism’s focus on individualism and self-fulfilment, as well as its discussed links with nativism, furthers a declining appreciation and understanding of ideas of community and commonality across spaces and borders. Solidarity, in contrast, appeals to a sense of community. Rather than dismissing populists as anti-international xenophobes, populism could instead be tactically mobilised as a multilateralism from below92, as a repoliticisation of the international sphere, where the actors need not

The Economist, On tyranny, populism – and how best to respond today, 30 July 2018, https:// www.economist.com/open-future/2018/07/30/on-tyranny-populism-and-how-best-to-respondtoday, accessed 11 January 2019. 90 Said 1993. 91 R Samaddar, What the Crisis in Venezuela Tells Us About Populism in Today’s Time, The Wire, 30 August 2017, https://thewire.in/external-affairs/venezuela-crisis-populism/, accessed 11 January 2019. 92 The use of the word ‘tactic’ is drawn from Robert Knox’s distinction between strategy and tactics (n 15). 89

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be states exclusively but can include popular movements of solidarity.93 This approach would need to recognise the existence of different forms of multilateralism. Some forms are upholding an unequal order in which there is a growing class of the disenfranchised; and some forms may be redistributive, forging an internationalism of solidarity. More specifically, populism could be a means to resist the further neoliberalisation of social relations through inequality-producing multilateralism. To be sure, the stigma from the mainstream media of populism sits deep, deepened through calls from academics to ‘defeat’ populism.94 But it is not insurmountable. Radical Left notions of populism acknowledge the compatibility of populism with democracy, politicisation, and solidarity which can be mobilised. Laclau and Mouffe propose a radical reading of populism on the premise that populism represents an important dimension of democracy. Rather than dismissing right-wing populists, Mouffe calls for a recognition of the ‘democratic nucleus at the origin of many of their demands.’95 In contrast to Müller who claims that populism is always antipluralist,96 Mouffe situates the current populist moment in the context of a contestation of neoliberal hegemony in a “‘return of the political” after years of post-politics’.97 A Left populist approach, Mouffe explains, should try to provide a different vocabulary for the anti-globalisation demands, towards more egalitarian objectives.98 Whilst Mouffe advocates for a long-term populist political model, a populism of solidarity could be tactically useful in the context of populism’s political moment. A movement of inclusivity can draw connections between people who have been socialised to ignore each other’s plights.99 In relation to how international lawyers may intervene in political debates, Robert Knox has suggested that international lawyers can be aware of the complicities of their discipline whilst also considering how to utilise international law in order to advance the interests of the oppressed and exploited.100 While the long-term project (the strategy) is an anti-imperial international law (or no international law), short-term forms of resistance (tactics) operate at more modest levels whilst being mindful not to undermine the strategy. The proposal here is that a populism of solidarity might utilise international legal norms in order to resist inequality-producing internationalism. If successful, this could have a distinct 93

For a transnational populism as human rights movement, see Henderson 2018. C Mudde, How can liberals defeat populism? Here are four ideas, The Guardian, 13 February 2018, https://www.theguardian.com/commentisfree/2018/feb/13/liberals-populism-world-forumdemocracy-5-ideas, accessed 11 January 2019. 95 Mouffe (n 13) at 22. 96 Müller (n 41) at 3. 97 Ibid., 6. 98 Ibid., 22. 99 P Bloom, We live in a populist age – but who are ‘the people’?, The Conversation, 9 August 2018, https://theconversation.com/we-live-in-a-populist-age-but-who-are-the-people-91793, accessed 11 January 2019. 100 Knox (n 15). 94

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long-term effect on inequality-producing forms of multilateralism. This requires the identification of the inequality-producing norms and institutions which can be resisted tactically in order to approach a radical and sustainable political-economic programme. Although multilateral agreements often have different outcomes, there is utility in distinguishing between inequality-producing forms of multilateralism and inequality-alleviating (redistributive and reparative) multilateralism. A radical reassessment of multilateralism necessitates a critical view on the type of multilateralism which has constituted a world dominated by economic expansionism and the shrinking of a public sphere. To date, multilateralism is certainly skewed in favour of the Western powers, but perhaps this need not be the case. There is precedent of agreements for redistribution. The 1974 New International Economic Order and the Paris (climate) Agreement from 2015, are considered, although not wholesale, as sample agreements of a type of multilateralism which focuses on redistribution of resources or privilege.101 The conceptual and historical disentanglement of populism from nationalism allows for the consideration of spaces for politicisation which exist between the state and the international. Transnational movements, in particular solidarity movements, dispel the idea that there must be a strict binary between the state and the international.102 Indeed, many populist movements as they began to arise as responses to industrialisation and the exploitations of labourers, and a resultant urbanisation, took inspiration from and saw themselves in solidarity with other progressive movements. Spontaneous alliances of the American populists of the late 19th century arose around a sense of responding to ‘industrial America’, enabling alliances with non-populist groups such as city liberals, urban socialists and anarchists.103 Solidarity across borders is particularly evident in the recent Latin American populist wave which is (partly) built on anti-imperialism rhetoric.104 Certainly, populism’s history in Latin America is not solely about redistribution to the masses; it is also a history of repression of opposition, militarism, and nepotism. And oftentimes it is also a history of the acceptance of neoliberalism.105 However, the anti-imperial linkage is an expression of the oppressed which resonates with similar linkages, or solidarity, seen in anti-austerity protests in various places across the globe, with protestors identifying as ‘the 99%’. Populism’s demand for a public space for the people, as articulated by Mouffe and Laclau, could be a key tool in reimagining an international law which is more not less democratic. Spontaneous populist resistance to inequality-producing multilateralism where international law was mobilised as a means of solidarity could be witnessed in the 101

For an overview of the NIEO, see Gilman 2015. There is a seasoned debate in radical left movements about solidarity within and across borders. The First International of 1864, and to an extent the Second and Third International, the Bandung conference of 1955, and the Tricontinental conference of 1966 are all examples of such movements. 103 Minogue 1969, at 199. 104 Mudde and Kaltwasser (n 6), 30, 31. 105 Dresser 1991. 102

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Occupy movement or the anti-TTIP (the United States-European Union Transatlantic Trade and Investment Partnership agreement) demonstrations. The latter may serve as an example of resistance through a tactical connection of populism with international law. Several factors led to the 2016 mobilisation of thousands of anti-TTIP demonstrators taking to the streets: The negotiations were largely held in secret; and the little information that was available clearly showed a favouring of big business at the expense of public goods. This included the minimising of regulatory barriers to trade, and the controversial proposals for an investor-favouring dispute settlement system.106 In Germany, mass protests, a size not seen since the Iraq war demonstrations, arose alongside an animated public debate on trade liberalisation. International networks of non-governmental organisations and anti-globalisation grassroots movements, with predominantly Left inflections of redistribution, presented such a force that the negotiations for TTIP were (perhaps permanently) disrupted.107 International law was mobilised against international law. Arguments were put forward that the proposed investment courts would be incompatible with human rights law; that international environmental law standards would be at risk due to corporate profit interests; and the lack of transparency would threaten the international rule of law.108 Although international law was implicated in the inequality-producing trade and investment agreements, other principles of international law were tactically invoked as a means of resistance. One version of inequality-producing multilateralism stood against a spontaneous populist internationalism of solidarity.109 Outside of the West, the Rhodes Must Fall movement exemplifies spontaneous populist movements which begin in the Global South and spill over, through solidarity alignments, into the Global North (albeit with the usual appropriations).110 This anti-colonial movement, which has created a public debate about the need to decolonise the curriculum, has demanded a historical and anti-imperial awareness of educators. At higher education institutions across Africa, and particularly in South Africa where the movement originated, the question is being posed whether a curriculum of white scholars and principles which uphold white privilege presents a contemporary form of colonisation. A broader question is raised concerning epistemology more generally, i.e. which knowledge is considered legitimate and why.

106

On TTIP, see De Ville and Siles-Brügge 2015. D Deckstein, The TTIPing Point: Protests Threaten Trans-Atlantic Trade Deal, Spiegel, 6 May 2016, www.spiegel.de/international/world/protest-movement-threatens-ttip-transatlantic-tradedeal-a-1091088.html, accessed 11 January 2019. 108 P Chase, TTIP, Investor-State Dispute Settlement and the Rule of Law, U.S. Chamber of Commerce, 2 December 2015, https://www.uschamber.com/issue-brief/ttip-investor-state-disputesettlement-and-the-rule-law, accessed 14 January 2019. 109 It is notable that a new Left populist movement ‘Aufstehen’ (stand up) launched in Germany in September 2018, https://www.aufstehen.de/, which responds to the nationalist populism channeled through the German Alternative für Deutschland party. 110 Chantiluke et al. 2018. 107

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The debate is deeply connected with structural questions of globalisation which have created and sustained an international elite.111 Such mass acts of resistance to inequality-producing multilateralism, whether directly or indirectly, have a potential for being international (legal) and anti-imperialist at the same time. Populism, in this form, stays true to its anti-establishment element as well as its ‘speaking for the people’ element. Instead of the anger being channelled to nationalism, the demands can be redirected towards acts of solidarity. International lawyers, who generally view populism as a threat, could form alliances with anti-imperialist movements in a Left populism for the purpose of resisting international law’s inequality-creating mechanisms.

5.7

Conclusion

Multilateralism has recently been called into question. International lawyers have blamed populism for this ‘threat’ to multilateralism. This has prompted a blanket-pro-multilateralism response. I have argued that this keep calm and carry on lawyering approach to populism includes several omissions of nuance and possibility. I began by setting out how populism is essentialised by international lawyers who conflate it with nationalism and right-wing politics. This essentialising blinds international lawyers to the nuances of populism (that it has diverse instantiations and a rich history) and also prioritises a Western-centric view of populism. Furthermore, this includes an essentialisation of multilateralism, which overlooks multilateral agreements which have been key to constructing and maintaining a deeply divided world. Contemporary populist movements, from the Right and the Left, were shown not to be exogenous to international law, but symptomatic of an international law which is deeply committed to neoliberal capitalism. Rather than focus on populism as the threat, international lawyers would therefore do well to consider the structural issues which populism’s appeal exposes. It is not so much populism which is the cause of the backlash to multilateralism than international legal neoliberalism. Populism has historically appeared where there is extreme inequality between the economic and political elites and the rest. If international lawyers are to align with the dispossessed, they can learn from the history of populism in order to radically reassess their discipline. They can learn under which conditions populism typically arises and which elements to harness for a progressive idea of international law. This opens up a space for considering populism as a means to challenge and rethink multilateralism in favour of an internationalism of solidarity.

111 A Chaudhuri, The real meaning of Rhodes Must Fall, The Guardian, 16 March 2016, https:// www.theguardian.com/uk-news/2016/mar/16/the-real-meaning-of-rhodes-must-fall, accessed 11 January 2019.

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References Alston P (2017) The Populist Challenge to Human Rights. Journal of Human Rights Practice 9(1): 1–15 Anghie A (2005) Imperialism, Sovereignty, and the Making of International Law. CUP, Cambridge Benvenisti E, Downs G W (2010) The Empire’s New Clothes: Political Economy and the Fragmentation of International Law. Stanford Law Review 60(2): 595–631 Brabazon H (ed) (2016) Neoliberal Legality. Understanding the Role of Law in the Neoliberal Project. Routledge, Oxford Brandes T H (2018) International Law in Domestic Courts in an Era of Populism. International Journal of Constitutional Law (forthcoming) Brubaker R (2017) Why Populism? Theory and Society 46(5): 357–385 Bulterman M K, van Genugten W J M (eds) (2013) Crisis and International Law: Decoy or Catalyst? Netherlands Yearbook of International Law 44 Canovan M (1999) Trust the People! Populism and Two Faces of Democracy. Political Studies 47(1): 2–16 Chantiluke R, Kwoba B, Nkopo A (eds) (2018) Rhodes must Fall: The Struggle to Decolonise the Racist Heart of Empire. Zed Books, London Charlesworth H (2002) International Law: A Discipline of Crisis. Modern Law Review 65(3): 377–392 Cheah P (2007) Inhuman Conditions: On Cosmopolitanism and Human Rights. Harvard University Press, Harvard Conniff M L (ed) (1982) Latin American Populism in Comparative Perspective. University of New Mexico Press, Albuquerque Conniff M L (ed) (1999) Populism in Latin America. University of Alabama Press, Tuscaloosa Crawford J (2018) The Current Political Discourse Concerning International Law. The Modern Law Review 81(1): 1–22 De Cleen B (2017) Populism and Nationalism. In: Kaltwasser C R, Taggart P, Ochoa Espejo P, Ostiguy P (eds) The Oxford Handbook of Populism. OUP, Oxford, 342–362 De Ville F, Siles-Brügge G (2015) TTIP: The Truth about the Transatlantic Trade and Investment Partnership. Polity Press, Cambridge Dornbusch R, Edwards S (eds) (1991) The Macroeconomics of Populism. University of Chicago Press, Chicago Dresser D (1991) Neopopulist Solutions to Neoliberal Problems: Mexico’s National Solidarity Program. Center for US-Mexican Studies, UC San Diego Figes O (2014) Revolutionary Russia, 1891–1991. Pelican Publishing Company, Gretna Gilman N (2015) The New International Economic Order: A Reintroduction. Humanity Journal 6(1): 1–16 Henderson L (2018) The Democratic Potential of Transnational Populism. Conference paper on file with the author Hofstadter R (1955) The Age of Reform. Random House, New York Hopgood S (2013) The Endtimes of Human Rights. Cornell University Press, Ithaca Howse R (2018) Populism and its Enemies. Draft paper on file with the author Ilkenberry G J (2018) The end of liberal international order? International Affairs 94(1): 7–23 Johns F (2005) Guantanamo Bay and the Annihilation of the Exception. European Journal of International Law 16(1): 613–635 Knox R (2010) Strategy and Tactics. Finnish Yearbook of International Law 21: 193–229 Knox R (2016) Valuing race? Stretched Marxism and the logic of imperialism. London Review of International Law 4(1): 81–126 Krever T (2011) The Legal Turn in Late Development Theory: The Rule of Law and the World Bank’s Development Model. Harvard International Law Journal 52(1): 287–319

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Krever T (2013) International Criminal Law: An Ideology Critique. Leiden Journal of International Law 26(3): 701–723 Laclau E (2005) On Populist Reason. Verso, New York Lester S, Manak I (2018) The Rise of Populist Nationalism and the Renegotiation of NAFTA. Journal of International Economic Law 21(1): 151–169 Marks S (2006) State-Centrism, International Law and the Anxieties of Influence. Leiden Journal of International Law 19(2): 339–347 Marks S (2009) Human Rights and the Bottom Billion. European Human Rights Law Review 1: 37–49 Marks S (2011) Human Rights and Root Causes. Modern Law Review 74(1): 57–78 Mieville C (2009) Multilateralism as Terror: International Law, Haiti, and Imperialism. Finnish Yearbook of International Law 19: 63–92 Minogue K (1969) Populism as a Political Movement. In: Ionescu G, Gellner E (eds) Populism – Its Meaning. Macmillan, London, 197–211 Mirchandani R (2016) Populism and Nationalism are Threat to Global Cooperation – Podcast with IMF’s Christine Lagarde. Centre for Global Development, 18 July 2016 https://www.cgdev. org/blog/populism-and-nationalism-are-threat-global-cooperation-podcast-imf-christinelagarde accessed 10 December 2018 Mishra P (2017) The Age of Anger: A History of the Present. Penguin, London Möller K (2018) Ein postheroischer Populismus?: Zum Verhältnis vom Populismus und Reflexivität. In: Fischer-Lescano A, Franzki H, Horts J (eds) Gegenrechte: Rechte jenseits des Subjekts. Mohr Siebeck, Heidelberg, 277–300 Mouffe C (2018) For a Left Populism. Verso, New York Mouffe C, Laclau E (1985) Hegemony and Socialist Strategy. Verso, New York Moyn S (2018) Not Enough: Human Rights in an Unequal World. Harvard University Press, Harvard Mudde C, Kaltwasser C R (2017) Populism: A Very Short Introduction. OUP, Oxford Müller J-W (2017) What is Populism? Penguin, London Pahuja S (2000) Technologies of Empire: IMF Conditionality and the Reinscription of the Global North/South Divide. Leiden Journal of International Law 13(4): 749–813 Pahuja S (2011) Decolonising International Law: Development, Economic Growth and the Politics of Universality. CUP, Cambridge Posner E (2017) Liberal Internationalism and the Populist Backlash. University of Chicago Public Law & Legal Theory Paper Series, No. 606. https://chicagounbound.uchicago.edu/cgi/ viewcontent.cgi?article=2071&context=public_law_and_legal_theory. Accessed 10 December 2018 Rapkin D P (2006) Reforming the IMF’s Weighted Voting System. The World Economist 29(3): 305–324 Roberts A (2017) Is International Law International? OUP, Oxford Said E (1993) Representations of an Intellectual. Lecture 2: Holding Nations and Traditions at Bay. Reith Lectures, 30 June 1993, transcript available at: http://downloads.bbc.co.uk/rmhttp/ radio4/transcripts/1993_reith2.pdf Salomon M E (2008) Poverty, Privilege and International Law: The Millennium Development Goals and the Guise of Humanitarianism. German Yearbook of International Law 51: 39–73 Sandel M J (2018) Populism, liberalism, and democracy. Philosophy and Social Criticism 44(4): 353–359 Schwöbel-Patel C (2019) The Core Crimes of International Criminal Law. In: Heller K et al. (eds) The Oxford Companion to International Criminal Law. OUP, Oxford, forthcoming Simpson G (2004) Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order. CUP, Cambridge Slobodian Q (2018a) Globalists: The End of Empire and the Birth of Neoliberalism. Harvard University Press, Harvard

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Slobodian Q (2018b) Neoliberalism’s Populist Bastards: A new political divide between national economies, Public Seminar, 15 February 2018, http://www.publicseminar.org/2018/02/ neoliberalisms-populist-bastards/ accessed 10 December 2018 Steyn, J (2004) Guantanamo Bay: The Legal Black Hole. International and Comparative Law Quarterly 53(1): 1–15 Trakman L E, Sornorajah M (2013) A Polemic: The Cases For and Against Investment Liberalisation. In: Trakman L, Ranieri N (eds) Regionalism in International Investment Law. OUP, Oxford Wentker A (2018) Venezuela’s Non-Participation Before the ICJ in the Dispute over the Essequibo Region. EJIL: Talk!, 29 June 2018 https://www.ejiltalk.org/venezuelas-non-participationbefore-the-icj-in-the-dispute-over-the-essequibo-region/ accessed 10 December 2018 Williamson J (ed) (1993) Latin American Adjustment: How Much Has Happened. Institute for International Economics Wuerth I B (2017) International Law in the Post-Human Rights Era. Texas Law Review 96(2): 279

Chapter 6

People, Politics and Populism in International Criminal Law: The Mungiki as Kenyan Ethnos and Kenyan Demos Edwin Bikundo ‘We the peoples of the United Nations’. Preamble to the Charter of the United Nations ‘My first draft was quite good, I thought. I’d based it on the UN Charter itself. The Foreign Office sent me over a copy, with a note attached explaining that the preamble to the Charter was known as the Unconditional Surrender of the English Language’. The Complete Yes Prime Minister at 459 ‘if what humans speak is a language, and if there is not only one language but many, then the plurality of languages corresponds to the plurality of people and political communities’. Giorgio Agamben What is Philosophy? at 6

Contents 6.1 Introduction........................................................................................................................ 6.2 People in the United Nations Charter and International Criminal Law........................... 6.3 Female Circumcision and the Politics of Patriarchy ........................................................ 6.4 The Faustian Pact, Political Violence and Law................................................................ 6.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

124 128 130 134 140 140

Abstract Although democracy and democratic practices, in the form of both direct and indirect public participation in governance are axiomatically a cherished value of liberal democratic principles, populism is nevertheless treated with wariness because Edwin Bikundo is a Senior Lecturer at the Griffith Law School, Griffith University at the Gold Coast in Australia. E. Bikundo (&) Griffith University, Gold Coast, Queensland, Australia e-mail: e.bikundo@griffith.edu.au © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_6

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of its potential to come into conflict with other cherished values of liberal democratic principles such as human rights and the rule of law. The ‘people’ as such have a limited direct role ascribed in public international law. Therefore, populism for this chapter, references a crisis of political representation where a schism between a people and its representatives is detected, or claimed, or exploited. That so-called democratic deficit makes international criminal law practitioners on the one hand particularly vulnerable to demagogic speech challenging their legitimacy and on the other particularly tempted to counter demagoguery by asserting themselves as being more legitimate representatives of a victimised people than their oppressive rulers. This chapter consequently argues that in international criminal law the people is metaphorically explicable as an optical illusion appearing and disappearing at crucial moments in different guises. In the Kenyan case study selected, these contested guises include victims and popular mandates. The people as such are never present and yet remain politically as well as legally indispensable as a rhetorical claim to ground concrete action oriented towards justice.















Keywords Ethnos Demos Faustian pact Giorgio Agamben Max Weber Monopoly on legitimate violence Mungiki Political violence Populism

6.1







Introduction

Populism along with bigotry and xenophobia, according to the former President of the International Criminal Court (ICC) Judge Silvia Fernández de Gurmendi, have the potential to undermine ‘international criminal justice and more broadly a rules based order’.1 John Dugard, concurred stating that ‘[a]t present the rule based international order is under threat from forces of nationalism and populism’.2 He identified the UN Human Rights Council and the ICC as two principal targets of these nationalist and populist forces. At least one witness in The Prosecutor v. William Samoei Ruto and Joshua Arap Sang identified ‘a certain degree of anti-Kikuyu populism’ in the run-up to the 2017 elections in Kenya.3 Peter Kagwanja examined how ‘the resurgence of populism and ethno-nationalism in the broader context of diffusion of ‘informal’ violence and widening inequality […] sowed the seeds for the post-election violence’4 Kagwanja notes that: 1

International Criminal Court, Judge Silvia Fernandez de Gurmendi President of the International Criminal Court: Keynote remarks at plenary session of the 16th Session of the Assembly of States Parties to the Rome Statute on the topic of the 20th anniversary of the Rome Statute, 13 December 2017, at 4. 2 Assembly of States Parties of the ICC, Speech by Professor John Dugard SC, Rome Statute 20 years – Addressing current and future challenges, 7 December 2018, at 1. 3 ICC, Transcript case The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, 15 January 2016, at 63. 4 Kagwanja 2009, at 366.

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Populism in Kenya has a long history in the struggle against colonialism and one-party tyranny. … Like their global contemporaries, Kenya populists drew a sharp divide between ‘the people’ and ‘the elite’ and rhetorically appealed to change in the political order while invoking the idea of democracy as, above all, an expression of the people’s will.5

Cas Mudde and Cristóbal Rovira Kaltwasser define populism as ‘as a thin-centered ideology that considers society to be ultimately separated into two homogeneous and antagonistic camps, “the pure people” versus “the corrupt elite,” and which argues that politics should be an expression of the volonté générale (general will) of the people’.6 Mudde and Kaltwassser examine North America, South America, Eastern Europe and Western Europe but omit Africa from their analysis neither do they address the question of violence in the context of populism. This chapter will use the work of Italian philosopher Giorgio Agamben to analyse the Mungiki as a case study, in order to argue that Mungiki are populist purveyors of political violence above all else. Agamben is useful with regard to his work on the ‘oath’, the idea of a ‘people’, among others which is of unique explanatory power with regard to the Mungiki case study. The Mungiki poses a significant populist challenge to International Criminal Law (ICL) given the failure to successfully repress and prosecute the phenomenon of Mungiki despite the considerable time, effort and resources deployed. On 23 September 2011, during Francis Muthaura’s Pre-Trial hearing for crimes against humanity before the ICC, his legal counsel Karim Khan said: Your Honours, another essential plank of this Prosecution’s case is what can only be described as an unholy alliance, a deal with the devil, between the government and [sic] Kenya and a criminal, a lamentable, an invidious criminal group called the Mungiki.7

Describing the Mungiki as criminal was far from unusual, assimilating them to the devil however was less so. Why did counsel Khan reach for the religious and literary metaphor of a ‘deal with the devil’ to express himself in the context of a trial? In one sense Khan was in good company however as even Philip Alston the then Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, had described them as a criminal organisation that begun as a cultural-religious movement and even provided basic services including sanitation and security to the poor in slum areas.8 What is more, Mungiki members were both perpetrators and victims of serious crimes including murder both by the police and at the hands of vigilante groups (one of which, Alston notes, went by the moniker of ‘The

5

Ibid. Mudde and Kaltwasser 2013. 7 The Prosecutor vs Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, ICC Pre-Trial Chamber II, Confirmation of Charges Hearing, ICC-01/09-02/11, Court Transcript at 67. 8 UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions Mr Philip Alston: Addendum – Mission to Kenya, A/HRC/11/2/Add.6, 26 May 2009, at 7. 6

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Hague’).9 Alston’s report on ‘Extrajudicial, Summary or Arbitrary Executions’ on his Mission to Kenya formed part of the court record in the Kenyan situation before the ICC. The Mungiki have been accused of engaging in cyclical political violence in Kenyan elections ‘either as an intimidatory force (or political militia) operating prior to elections, or as perpetrators of retaliatory attacks (as in the 2007 post-election violence)’.10 The campaign debate in the lead up to the post-electoral violence ‘[…] took a populist turn that paved the way for the ethnic violence after the elections’, in which both sides were complicit.11 However, it is not the undeniable fact that the Mungiki engaged in routine criminal activity, nor that they participated in both licit and illicit activities, nor even that they were simultaneously perpetrators and victims of international crimes that is the subject of this chapter. Instead what guides the present inquiry is that etymologically, the word ‘Mungiki’, in the Kikuyu tribal language from which community they principally draw their membership is translatable to mean ‘people’ as a properly undifferentiated mass.12 Grace Nyatuga Wamue has noted its close proximity in meaning to ‘crowds’ as well as ‘masses’ and that it: ‘[…] reflects a belief that people are entitled to a particular place of their own in the ontological order. The term therefore means ‘fishing the crowd from all corners of Kenya’. Mungiki also refers to a religio-political movement composed mainly of large masses of Gikuyu origin and other non-Gikuyu (Pokots, Luos and Maasais)’.13 Jacob Rasmussen concurs with Wamue’s view that ‘[i]n Kikuyu, Mungiki means “multitude” or “masses”; the name powerfully communicates the movement’s ambition of reaching out not only beyond the Kikuyu tribe, but also potentially beyond Kenya and Africa’.14 This aggressive mobilisation of the Kikuyu simultaneously as ethnos and demos against the spectre of both internal and external enemies with the Mungiki cast in the role of saviour through purificatory violence is what this chapter understands as populism in the Kenyan context. Here the Mungiki (in common with populists the world over) toy with in Agamben’s terminology membership (being present) of a group versus inclusion in a group (being merely re-presented).15 The stated aim of the Mungiki since their origins in the 1980s, has been both to revive indigenous Gikuyu culture and religion, and to liberate the Kenyan masses from political oppression and economic exploitation.16 As Rasmussen notes, ‘[t]he movement’s founders, and its adherents more generally, claim a specific heritage from the Mau Mau, Kenya’s freedom fighters of the

9

Ibid., at 8 n 12. Rasmussen 2010. 11 Harneit-Sievers and Peters 2008, at 136. 12 Wamue 2001, at 454. 13 Wamue 2001, at 454. 14 Rasmussen 2010. 15 Agamben 1998, at 24. 16 Ahlberg and Njoroge 2013. 10

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1950s’.17 Mungiki glide, navigate and oscillate between them as a Kikuyu-linked ethnos which is to say they are a population group sharing a common descent, and cultural tradition as well as a demos which by contrast is people organised as a polity usually by some form of democratic practice. This last aspect is what renders the Mungiki a fit and proper subject of inquiry as a strain of African populism in a peculiarly Kenyan international criminal law context. As Sinja Graf has ably demonstrated ‘the concept of crimes against humanity […] in the Rome Statute of the International Criminal Court criminalizes forms of direct, physical violence and thus excludes institutional and structural versions of violence from the range of practices that offend humanity’.18 This blind spot excluding institutional and structural forms of violence as identified by Graf is what this chapter tries to remedy particularly focusing on cultural and bodily violence perpetrated on women via the practice variously described as female circumcision/clitoridectomy/female genital mutilation/Irûa in the Kikuyu language (incorporating both female and male circumcision). This chapter will use the descriptive term ‘female circumcision’ combining as it does a communal practice incorporating both physical and ritualistic aspects that the medicalized ‘clitoridectomy’, condemnatory ‘female genital mutilation’ and approbatory Irûa do not adequately capture. This is done to demonstrate how an understanding of the central role of the practice is essential to link the key Mungiki characteristics (like the historical Mau Mau movement from which they trace their genealogy from) of an anti-Western ideology that projects itself as an emancipatory force fixated on land and engages in political violence as a means to that end. Furthermore, Mutuma Ruteere has made the compelling argument ‘that rather than being one organization, Mungiki has become a discourse, invoked by different groups whether in authority or other criminal gangs to achieve particular ends’.19 Following this introduction, the first part of the chapter looks at how the term ‘people’ is treated in international criminal law and how Mungiki as a phenomenon is not something the apparatus of international law was designed to deal with, the second part develops a theoretical and conceptual framework based on the work of Giorgio Agamben to come to grips with this phenomenon of Mungiki that is at once criminal, cultural, religious, economic, political, violent and above all for the purposes of this chapter founded on the subjugation of women’s bodies and their simultaneous sidelining as active political subjects. That analysis is accomplished through categories derived from Aristotle’s Politics by Giorgio Agamben including oikos or home, polis or city as well as stasis or civil war and finally amnesty. The third part looks at why the ICC grappled unsuccessfully with this unique and challenging strain of populism. The fourth section teases out why and how counsel Khan above would have reached for the devil as an apt metaphor to describe such practitioners and purveyors as well as victims of political violence as Mungiki and

17 18 19

Rasmussen 2010. Graf 2017. Ruteere 2008, at 23–24.

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in that way resisted his client being cast as an Africanised Faust. The conclusion brings all the threads together summarising and explaining what the inquiry has addressed, uncovered and suggests going forward.

6.2

People in the United Nations Charter and International Criminal Law

Why would a multi-faceted movement that, among other things, engages in political violence name themselves as literally ‘the people’ or ‘the masses’, if not to politicise itself and in that way somehow legitimate itself as other than criminal? This section thus seeks to demonstrate that, by equating themselves with that elusive concept of ‘the people’, Mungiki quite self-consciously seek to politically justify their use of violence as a legitimate emancipatory tool. To start with what the umbrella term ‘people’ covers in the context of Mungiki, Rasmussen notes that: Since its inception Mungiki has been classified in a variety of ways: as a new religious and neo-traditionalist movement or occult sect, as a social movement or political party, and as a criminal gang or political militia. Though the importance of several of these labels has been overemphasised in the past, each contains some truth, a fact which indicates the movement’s multilayered and multifaceted character. Its relatively large membership base, its extensive regional coverage (its members are drawn from both remote rural areas and densely populated urban neighbourhoods), and the many facets of the movement combine to make Mungiki a highly heterogeneous organisation.20

We can begin to make more sense of Mungiki’s high heterogeneity by more closely analysing the term people first in the context of international law and subsequently by engaging with Italian political philosopher’s Giorgio Agamben’s philological work on the term. At the outset, the customary international law definition of a ‘State’ includes the key criteria of population (as well as territory, government and capacity to enter into relations with other States) but makes no explicit mention of ‘people’ as such.21 This is perfectly congruent with the UN Charter’s preamble which opens with the phrase ‘We the Peoples of the United Nations’ with the term ‘peoples’ again used to reference ‘the populations of the member States’.22 It needs careful noting that this is not the uniform meaning of ‘peoples’ - not even in the Charter itself with, for example, ‘peoples’ bearing an ethnic connotation in Article 1(2) immediately following the Preamble.23 Furthermore, out of a total of only twelve references to ‘peoples’, two are in the Preamble, another two are with explicit reference to self-determination and the eight

20

Rasmussen 2010. See Montevideo Convention on the Rights and Duties of States (1933), 165 LNTS 19 (‘Montevideo Convention’), Article 1. 22 Wolfram (2012), at 103. 23 Ibid. 21

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others remaining are in the two chapters to do with the ‘Declaration Regarding Non-Self-Governing Territories’ and the now defunct ‘International Trusteeship System’. That defunct Trusteeship system moreover has the sole mention of ‘people’ in the entire Charter. Suffice to say the simultaneous overlap and distinction between population and people locates a population as an apolitical construct that is politically amenable to be constituted within a State while ‘people’ is politically instituted in and of itself whether inside or outside the State. There is therefore scant scope for recognition of Mungiki in public international law as currently constituted because the ‘people’ that would be recognisable would be the Kikuyu people and not Mungiki as such who would at best be a political movement dominated by without being exclusively of the Kikuyu as a vehicle for populist politics. International criminal law on the other hand references ‘people’ at various points including the International Military Tribunal for the Major War Criminals of the European Axis (IMT) Nuremberg Charter which only twice talks of ‘civilian population’ in the context of victims of war crimes and crimes against humanity but otherwise has nothing to say explicitly on people as such. Likewise, the International Military Tribunal for the Far East (IMTFE) Tokyo Trial Charter is silent on ‘people’ but does reference ‘civilian population’ once, in relation to crimes against humanity. This is the approach followed by the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as the International Criminal Tribunal for Rwanda (ICTR) Statutes with their sole reference to ‘civilian population’, and also only in relation to crimes against humanity. The ICTR does however include a reference to ‘civilised peoples’ which the ICTY lacks. Furthermore, the ICTR’s case law in Akayesu contributed the notion of ‘any stable and permanent group’ as being protected under the Genocide Convention.24 The Rome Statute for the ICC is broader than all the preceding examples. Its Preamble opens with a reference to ‘all peoples’ and goes on to refer to population twelve times with regard to both war crimes and crimes against humanity. However, because individual criminal responsibility and not group responsibility is the rule, there is limited scope for international criminal law to directly deal with a phenomenon like Mungiki beyond the ‘group of persons acting with a common purpose’ meaning.25 It is not just the UN Charter generally nor international criminal law in particular that have difficulty in finding purchase on the term ‘people’ but also political theory and practice. In his essay, ‘What is a people?’, Italian philosopher Giorgio Agamben, begins by highlighting and demonstrating how ‘people’ in numerous examples also indicates ‘the poor, the underprivileged, and the excluded’.26 That is it has the effect of connoting both the politically active subject as well as those that are excluded as

24

Prosecutor v. Akayesu, ICTR, Judgement, ICTR-96-4-T, 2 September 1998, para 516. See Rome Statute for the International Criminal Court (1998), 2187 UNTS 90 (‘Rome Statute’), Article 25. 26 Agamben 2000, at 29. 25

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anything other than abject, passive subjects. He goes on to claim though that this ambiguity is no accident but rather ‘reflects an ambiguity inherent in the nature and function of the concept of people in Western politics’. This would make ‘people’ an ‘oscillation between two opposite poles’ not a unitary subject.27 This also maps it into Agamben’s most famous conceptual pair zoë or ‘naked life’ represented in people and bios or political existence representing People.28 In contrast to the UN Charter the international criminal law examples do not make reference to ‘people’ in the sense of a politically active population that is recognised as such but rather as an abject population always and invariably in need of protection, and in no way directly present except as a void to be filled by humanitarian action. This is why populism here then references a crisis of political representation where a schism is detected or claimed between the people and their rulers. Where people are always spoken of but excluded because they are already spoken for. In the next section, this chapter will go on to argue that populism pushes a form of illiberal democracy where human rights and the rule of law are sacrificed for political expediency in the name of the people but really in the service of populism. Nothing illustrates this better than the position of women with regard to the Mungiki movement as we shall see presently.

6.3

Female Circumcision and the Politics of Patriarchy

This section will develop and build on Graf’s insight above, that there are certain constitutive elements of structural violence (in this specific instance symbolic as well as physical violence against women) that are rendered invisible in the ICC’s practice. To start with, Beth Maina Ahlberg and Kezia Muthoni Njoroge have noted that the Mungiki are a predominantly young and predominantly male association generally speaking.29 Furthermore, there are no female leaders anywhere prominent in its ranks. Notwithstanding that (or perhaps better as a result of that) the subjectification and subjugation of women is as we shall see a key plank in its strategies: ‘[t]hey have, for example, attacked women deemed improperly dressed for wearing trousers which in turn has led to public outcry against them’.30 As Ahlberg and Njoroge note, ‘one of its philosophies is to reinstate female genital cutting which has declined, as a result of which, Mungiki argues, society’s good values have also declined’.31 Neither consistency nor coherence of doctrine however are Mungiki’s strong suit as seen for instance during its rampages: ‘Men rather than women were hunted down and forcibly circumcised or had the penis cut or

27 28 29 30 31

Agamben 1998, at 177. Agamben 1998, 2005, 2011. Ahlberg and Njoroge 2013. Ibid. Ahlberg and Njoroge 2013.

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mutilated, sustaining long-lasting, and debilitating injuries’.32 Mungiki – through symbolic and physical violence – essentially in the name of protecting women subsume women into men. It then follows that up with progressively blurring the lines between Kikuyus, Kenyans and Africans generally. Wamue notes that although the Mungiki is almost entirely a Kikuyu phenomenon it has the ambition to embrace the Kenyan tribes through a shared African heritage involving ‘a return to issues like female genital mutilation, sacrifices, oaths, and such outdated customs’.33 Agamben situates the oath ‘at the intersection of law and politics’34 and notes its ‘essential function’ in the political constitution.35 Agamben furthermore, obliquely references circumcision always and only in relation to belonging to a specific community.36 This is the significance then of female circumcisions to Mungiki’s populism or quasi-populism. Wamue, states that ‘Mungiki followers insist that their sect does not advocate the physical act of circumcision per se, but the moral grounding that is associated with the traditional rite’.37 Mungiki further ‘assert that less than 10 percent of Mungiki women are circumcised and that no one is insisting that they undergo circumcision’.38 Jacob Rasmussen also states that ‘Mungiki no longer advocate clitoridectomy’ after noting that at the beginning Mungiki were of the view that ‘many Kenyans operated with a fundamentally colonial mindset and needed to have their minds freed through a return to traditional religious and cultural values, including female circumcision’. Nevertheless, the practice does persist with Wairimu Ngaruiya Njambi self-reporting that: While the cultural significance of female circumcision has been waning in the past few decades, due mainly to church pressures, its cultural importance was still strong enough during my youth that I saw it as a necessity. It may seem ironic, given the tales of ‘flight from torture’ told in the media, but my parents refused to allow me to be circumcised, as it was against Catholic teachings. I had to threaten to run away from home and drop out of school before my parents relented and allowed me to be circumcised. The procedure was performed with a medical scalpel in a local clinic run by a woman who was a trained nurse in the western sense, and also a relative of an important Gikuyu female medical healer and powerful leader of the early 20th century, Wairimu Wa Kınene. During the operation, the hood of the clitoris was cut through its apex which caused the hood to split open and the clitoris to become more completely exposed. Such exposure has been associated with sexual enhancement. However, any generalization here might be unwise as it is likely that women’s experience of irua [circumcision] varies, perhaps significantly.39

32 33 34 35 36 37 38 39

Ibid. Wamue 2001. Agamben 2011, at 1. Agamben 2011, at 2. Agamben 2005, at 19, 21, 45, 165 and 176. Wamue 2001. Ibid. Njambi 2004.

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As already indicated on the literature surveyed above, the aim of the Mungiki since the 1980s, was to leverage religion for political and economic gains, to not ‘only revive indigenous Kikuyu culture and religion, but also to liberate the Kenyan masses from political oppression and economic exploitation’.40 With this background we can now focus on the main objective of the Mungiki, which is allegedly to unite and mobilize the Kenyan masses to fight against the yoke of mental slavery to ‘foreign cultures and agents of those cultures among the Kikuyu’.41 It needs to be noted in the first instance that ‘Despite their Kikuyu heritage, the Kenyatta family are thus among the main offenders in what Mungiki perceive as “historical injustices” to the Mau Mau and their kin’.42 In other words (just like the Mau Mau before them) the Mungiki are very much an intra-Kikuyu phenomenon approximating a class conflict akin to civil war between the descendants of the Kikuyu Peasantry and the Kikuyu aristocracy.43 This civil war nourishes Mungiki’s populism in that it can claim to be fighting internal (fellow Kikuyu) and external (potentially anyone and everyone else) enemies of the Kikuyu simultaneously. Indeed the vast majority of Mungiki victims are Kikuyus, a fact that was unacknowledged in the ICC proceedings given its specific focus on Mungiki’s violence against other groupings and tribes. Having said that this intra-Kikuyu civil war is significant in understanding the context of Mungiki’s operations. The theses Agamben advances in Stasis: Civil War as a Political Paradigm44 are first, that civil war is the threshold between politicisation and de-politicisation (at least in the West) and second, that the constitutive element of the state is the absence of a people.45 Agamben goes on to note that ‘a theory of civil war is completely lacking today’ where ‘hand in hand with the advance of global civil war’ academic analysis is geared ‘toward the conditions under which an international intervention becomes possible’.46 His lament is that this ‘seems incompatible with the serious investigation of a phenomenon that is at least as old as Western democracy’.47 His work however does not purport to fill this gap on its own. Rather, it restricts itself to examining stasis (treated as synonymous with civil war) in Ancient Greece and in Thomas Hobbes’s work as representing ‘two faces’ …‘of a single political paradigm’ being ‘the necessity of civil war’ simultaneously with ‘the necessity of its exclusion’ both of which mutually ‘maintain a secret solidarity’ that Agamben ‘seek[s] to grasp’.48

40 41 42 43 44 45 46 47 48

Ahlberg and Njoroge 2013. Stringer 2014 at 117. Rasmussen 2010. Mockaitis 1992, at 88; Kyle 1997, at 50; Lonsdale 1990. Agamben 2015. Ibid., Foreword. Ibid., at 1. Ibid. Ibid., at 3.

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The notion of stasis ‘constitutes a zone of indifference between the unpolitical space of the family and the political space of the city’.49 For Agamben ‘in Greek politics civil war functions as a threshold of politicisation and depoliticisation, through which the house is exceeded in the city and the city is depoliticised in the family’.50 Agamben cites that Greek law, under Solon, the Athenian lawmaker, punished ‘the citizen who had not fought for either one of the two sides in a civil war with the loss of civil rights’.51 Therefore ‘not taking part in civil war amounts to being expelled from the polis and confined to the oikos’.52 Per Agamben, according to Aristotle: the invention of amnesty […] with respect to civil war is thus the comportment most appropriate to politics. From the juridical point of view, stasis thus seems to be defined by two prohibitions, which perfectly cohere with one another: on the one hand, not participating in it is politically culpable; on the other, forgetting it once it has finished is a political duty.53

Rather provocatively, this is ‘just the opposite, that is to say, of what civil war seems to be for the moderns: namely, something that one must seek to render impossible at every cost, yet that must always be remembered through trials and legal prosecutions’.54 It is fully evident that in contrast to amnesty, repressing Mungiki ‘only makes its followers more determined and violent’.55 Indeed Agamben concludes the analysis with: ‘stasis, which can no longer be situated in the threshold between the oikos and the polis, becomes the paradigm of every conflict and re-emerges as terror.’56 Although he perhaps deems it too obvious to mention, Agamben’s starting point of the centrality of civil war to Hobbes’ state of nature is strengthened by the historical fact that Leviathan was conceived in and responded to the context of the English Civil War.57 For Agamben the mortal god leviathan ‘does not dwell within the city, but outside it’.58 Further the city is devoid of its inhabitants.59 The iconic image thus discloses that ‘political representation is only an optical representation (but no less effective on account of this)’.60 Indeed ‘at the very instant that the people chooses the sovereign it dissolves into a confused multitude’.61

49 50 51 52 53 54 55 56 57 58 59 60 61

Ibid., at 12. Agamben 2015, at 12 (emphasis removed). Ibid., at 12. Ibid., at 13. Ibid., at 15. Ibid., at 16. Wamue 2001, at 453–467. Agamben 2015, at 18. Hobbes 2005, at xi, lii, 127, 138, 311 and 484. Agamben 2018, at 27. Agamben 2015, at 29. Ibid., at 33. Ibid., at 35. See also Agamben 2000, at 30–31.

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Consequently, ‘the state of nature is the city from the perspective of civil war’.62 Previously, in dialogue with Walter Benjamin and Carl Schmitt, Agamben has described this oscillation as between ‘constituent power and constituted power’.63 To put it more emphatically, ‘the state of nature is a mythological projection into the past of the civil war; conversely, civil war is a projection of the state of nature into the city: it is what appears when one considers the city from the perspective of the state of nature’.64 Furthermore, ‘political theology appears in Hobbes in a decidedly eschatological perspective’.65 For Agamben, ‘it is certain that the political philosophy of modernity will not be able to emerge out of its contradictions except by becoming aware of its theological roots’.66 Agamben’s work does delve deeply into theological concepts but the focus is more on their strategic deployment rather than their systematic development over time.67 As such it is always political theology in the Schmittian sense. In the context of the law’s complicity with violence generally this is a political theodicy very much in the vein of his treatments of the Faustian pact which is located at the intersection of philosophy, law and religion. The Mungiki as purveyors of political violence fall squarely within this formulation as we shall see presently below. As Agamben’s analysis has made it possible to see violence is included in the juridical order as either sanctioned in the sense of permitted or sanctioned in the sense of not permitted.68 This perfect ambiguity and dual valence of ‘sanction’ in law is key to the riddle of law’s reliance upon and repressing of violence.

6.4

The Faustian Pact, Political Violence and Law

Mungiki’s rise in influence and popularity in part depended on the ‘the inability of the Government to demonstrate its monopoly over violence for the common good’.69 Given their use of violent means, Mungiki pose a conscious, clear, direct and deliberate threat to the Kenyan state’s Weberian claim to ‘the monopoly on the legitimate use of physical violence’ within Kenyan territory.70 Writing in the period following Germany’s defeat in the First World War (and while resisting the notion of a collective ‘war guilt’) Max Weber set out his task in Politics as a Vocation as an attempt to sociologically define a political association and stated that: ‘in the

62 63 64 65 66 67 68 69 70

Agamben 2015 at 4. Agamben 2005, at 30, 33, 36, 54 and 56. Agamben 2015. Ibid., at 47. Ibid., at 54. Agamben 2018, at 43–44. Ibid., at 20. Katumanga and Cliffe 2005, at 17. Weber 2004, at 33.

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final analysis, the modern state can be defined only sociologically by the specific means that are peculiar to it, as to every political association: namely, physical violence’.71 Furthermore he went on to add that: ‘If there existed only societies in which violence was unknown as a means, then the concept of the ‘state’ would disappear; in that event what would have emerged is what, in this specific meaning of the word, we might call ‘anarchy’.72 Weber did add the proviso that: ‘Violence, is of course, not the normal or the only means available to the state […] But it is the means specific to the state’.73 Derrida summarized this as, ‘At its most fundamental level, European law tends to prohibit individual violence and to condemn it not because it poses a threat to this or that law but because it threatens the juridical order itself.’74 Further, ‘Law has an interest in a monopoly of violence to protect neither justice nor legality but law as such.75 Weber’s rightly famous passage defining the State deserves contextual quotation to demonstrate the stakes of Mungiki’s political violence in its challenge to the Kenyan State apparatus: In the past the use of physical violence by widely differing organisations—starting with the clan—was completely normal. Nowadays, in contrast, we must say that the state is the form of human community that (successfully) lays claim to the monopoly of the legitimate use of physical violence within a particular territory—and this idea of ‘territory’ is an essential defining feature. For what is specific to the present is that all other organisations or individuals can assert the right to use physical violence only insofar as the state permits them to do. The state is regarded as the sole source of the ‘right’ to use violence. Hence, ‘politics’ for us means to strive for a share of power or to influence the distribution of power, whether between states or between the groups of people contained within a state.76

Less well known and less quoted moreover is that in the same place Weber said that: ‘Anyone who wishes to engage in politics at all […] is entering into relations with satanic powers that lurk in every act of violence’.77 For removal of doubt Weber even goes on to quote the same passage of Goethe’s Faust in Politics as a Vocation as well as Science as a Vocation: ‘Reflect, the Devil is old, so become old if you would understand him’.78 Given the irresistible logic that political science as a discipline would have to be located at the centre of the Politics as a Vocation/ Science as a Vocation axis the value of the Faustian pact as an explanatory framework for international criminal law’s relationship to violence becomes increasingly clear. Namely, the analysis of that Mephistophelean pact analogy demonstrates that it is based on excusing otherwise evil acts by arguing that that

71 72 73 74 75 76 77 78

Weber 2004, at 33 (emphasis in original). Ibid. Weber 2004, at 33. Derrida 1990, at 987. Ibid. Weber 2004, at 33. Weber 2004, at 90 Ibid., at 27 n 27 and at 91 n 87.

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evil will nevertheless promote good. Which is to say the socio-legal legitimation of violence links good to evil in purportedly productive ways. Giorgio Agamben speculates on a behind the scenes and covert engagement between Walter Benjamin and Carl Schmitt concerning a battle of these prominent intellectuals over the void that is the state of exception where nothing is forbidden and the law is neutralized.79 Which is to say where the force that usually accompanies law is freed up of the law’s strictures. Furthermore that decoupling of force from law is legitimated and justified in the name of emergency measures that are then progressively normalized. Writing in the wake of Weber, Walter Benjamin in his ‘Critique of Violence’ sets out his own purpose as explicating the relationships between violence and law and justice: The task of a critique of violence can be summarized as that of expounding its relation to law and justice. For a cause, however effective, becomes violent, in the precise sense of the word, only when it bears on moral issues. The sphere of these issues is defined by the concepts of law and justice. With regard to the first of these, it is clear that the most elementary relationship within any legal system is that of ends to means, and, further, that violence can first be sought only in the realm of means, not of ends.80

Benjamin’s own view of Weber’s monopoly of violence as the specified means available to the State is instructive with regard to the political challenge directed to the Kenyan legal order (which view coheres perfectly with Derrida’s as noted above because it was indeed the basis upon which Derrida relied): the law’s interest in a monopoly of violence vis-à-vis individuals is not explained by the intention of preserving legal ends but, rather, by that of preserving the law itself; that violence, when not in the hands of the law, threatens it not by the ends that it may pursue but by it mere existence outside the law.81

Schmitt also writing in the wake of Weber’s secularization thesis famously said that it was sociologically necessary to consider that ‘All significant concepts of the modern theory of the state are secularized theological concepts’.82 This was according to him ‘because of their historical development’ (he provides the example of a theological ‘omnipotent God’ reasserted as the political ‘omnipotent lawgiver’).83 Schmitt makes no mention of the Faustian pact here but the same logic would follow as we shall see presently when we return to ‘the deal with the devil’ that was referenced with regard to Mungiki. The precise contours of ‘the deal with the devil that counsel Khan referred to were that Uhuru Kenyatta mediated between his political party the Party of National Unity (PNU) and Mungiki, in order to organise retaliatory attacks against the rival political party the Orange Democratic Movement (ODM) in order to consolidate

79 80 81 82 83

Agamben 2005 52–64. Benjamin 1978, at 277. Ibid., at 280–281. Schmitt 2005 at 36. Ibid.

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PNU’s hold on power.84 In return, the allegation was that, Kenyatta in concert with others ‘provided funding, transportation, accommodation, uniforms, weapons and logistical support to the Mungiki and pro-PNU youth to carry out coordinated attacks in specific locations’, additionally, they guaranteed safe passage with the knowing connivance of the police to not intervene both before and after attacks.85 Essentially therefore the pact was for Mungiki to provide political violence in exchange for funding, support and facilitation. Put simply the Mungiki marketized their capacity for actual and symbolic political violence and were recompensed in return. Rasmussen has noted that ‘[o]ne of Mungiki’s central political demands has been for a generational transfer of power, a demand rooted in the Kikuyu tradition, itwika, according to which an older generation hands over power to a younger generation in a 30–40 year cycle’.86 This demand has led to Machiavellian struggle between the state and the movement in a game of bluff, double bluff and even triple bluff that Rasmussen ably conveys and summarises as ‘while Mungiki officially declared its support for Kenyatta and Moi [in the 2002 elections], in reality it supported the opposition candidate, Mwai Kibaki’.87 To start with the bluff it began with then President Daniel arap Moi anointing Uhuru Kenyatta as his successor (and in that way having him as the sole viable Kikuyu candidate – a plan that was scuttled by prominent Luo leader Raila Odinga supporting Mwai Kibaki a Kikuyu who ultimately and unexpectedly won) in order to manipulate the large and recalcitrant Kikuyu voting bloc into aligning with this line of succession and power transfer: For Mungiki, Uhuru Kenyatta (son of Kenya’s first President after independence, Jomo Kenyatta) was a bad choice. He was widely known as “a spender”, a businessman with little political experience and, more controversially, he represented the Kenyatta family, who in Mungiki’s eyes had betrayed their ancestors, the Mau Mau, at independence. It seems clear that Moi was trying to sell an ethnic Kikuyu leader to Mungiki in return for the votes of young Kikuyu that the movement could guarantee. But Mungiki’s leader, Maina Njenga, had political ambitions of his own and wanted to run for parliament. The problem, as Muigai presents it, was that both Uhuru Kenyatta and Maina Njenga wanted the votes of the Kikuyu youth, but that Njenga (unlike Uhuru) had a massive organised following in the traditionally Kikuyu-dominated regions of the country.

The double bluff arose because the Mungiki saw clearly through Moi’s scheme and its motivations and as a consequence took steps to neutralise these machinations:

84 The Prosecutor vs Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, ICC Pre-Trial Chamber II, Public Redacted Version Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, at paras 289–295. 85 Ibid. 86 Rasmussen 2010. 87 Ibid.

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Mungiki suspected that Moi was playing a double game whereby he would gain the support of Mungiki’s Kikuyu supporters for the election while simultaneously creating tension between Uhuru and Mungiki that would later allow Uhuru to denounce the movement.

Mungiki’s response was the triple bluff which may be summarised as ‘The movement’s hidden strategy was to declare its public support for Uhuru Kenyatta, thus denying him the votes of ordinary Kikuyu voters alarmed by Mungiki’s violent reputation, while secretly directing its own members to vote for the opposition just one week before the elections’.88 As seen below: Mungiki decided to cooperate with Moi and publicly support Uhuru Kenyatta. On one occasion, the movement organised a large fundraising event, attended by 10,000 people, in support of Uhuru. On another, Mungiki held a large prayer meeting in a field belonging to Uhuru (although Mungiki made it appear as though the proceedings had Uhuru’s blessing, the event took place without his knowledge). The idea was to discredit Uhuru by making strategic use of Mungiki’s own bad reputation; by associating him with the movement and with the political violence it had come to represent, Mungiki sought to scare off Uhuru’s potential voters. The motivation for this strategy was to secure the election of the presidential candidate that the Mungiki leadership actually wanted: Mwai Kibaki. It also offered the opportunity for Mungiki to get its revenge on both Moi, who had mounted brutal police campaigns against the movement, and on Kenyatta, who represented the family widely blamed for the historical injustices that the movement and its followers claimed to have suffered.

Furthermore, following this government, ‘launched a police crackdown on the movement and created special units to infiltrate its ranks’.89 To add to the murkiness of distinguishing between real and simulated Mungiki action, Peter Kagwanja argues that Mungiki’s allegations of State infiltration by police agents and even of state-sponsored pseudo gangs masquerading as Mungiki should not be taken lightly.90 This is particularly so when similar tactics were deployed by the British colonial State against the Mau Mau which is the template followed here.91 What is not seriously in doubt however is the Mungiki commoditised their capacity to unleash real and symbolic violence for both commercial and political ends. Resort to violence is essentially then a Faustian pact by way of conceiving of violence as inherently evil but nevertheless capable of achieving good when opposing violence. In Goethe’s Faust, Faust asks Mephistopheles: ‘Who are you then?’ and is answered perhaps truthfully but not completely honestly: ‘Part of that force which would do ever evil, and does ever good.’92 As Walter Benjamin pointed out, distinguishing between law making or law preserving violence leaves the question of violence itself untouched and unquestioned.93 The prevailing test is only violence as a means to an end, and therefore, in this way violence is only to be

88 89 90 91 92 93

Rasmussen 2010. Ibid. Kagwanja 2005, at 41–42. Ibid. Goethe 2001, at 36. Benjamin 1978, at 277.

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evaluated strictly as a means, a so-called necessary evil whose evil is undisputed but necessity is impossible to prove or disprove. For Agamben, ‘the law consists of essentially in the production of a permitted violence, which is to say in a justification of violence’.94 He discusses two paradigms in Western ethical and political thought that are especially critical to the ‘unwilling and unable’ pairing in the ICC’s complementary jurisdiction. The first ‘tragic’ model is based on action and praxis while the second is anti-tragic and based on knowledge and contemplation. The tragedy of Faust resolutely assigns the primacy to action.95 Free will read as freedom is equivocal because the context in which it is used is not political freedom but moral and juridical freedom regarding the imputability of actions.96 The church fathers used ‘it as a technical term to express the mastery of the will over actions in’ ‘the origin of evil and responsibility of sin’.97 In that sense it is found for the first time ‘referring significantly to the devil.98 Indeed per Agamben, God accuses Satan of accusation itself.99 For Agamben ‘is an obvious fact’ ‘[t]hat the law is defined as an articulation of violence and justice’.100 Agamben positions this definitive aspect of the law as a political theodicy – a justification of evil – stating that ‘the law consists of essentially in the production of a permitted violence, which is to say in a justification of violence’.101 He even references Kelsen’s inclusion of the Sermon on the Mount’s non-violence precept as also based on sanction,102 the same sermon that Weber analysed only to conclude that politicians ‘must abide by its precise opposite lesson: ‘[y]ou shall use force to resist evil’.103 Agamben notes that this link of the law and sanction was considered as ‘less than perfect’ in Roman jurisprudence.104 This approach is therefore comparable to Weber’s answer to the question: ‘Can the ethical demands made on politics really be quite indifferent to the fact that politics operates with a highly specific means, namely, power behind which violence lies concealed’?105 This why Weber includes in this the startling observation that ‘the politician must abide by the opposite commandment [“resist not him that is evil with violence”]: “You shall use force to resist evil, for otherwise you will be responsible for its running amok”’.106 Weber arrived at that conclusion by

94

Agamben 2018, at 22. Ibid., at 35. 96 Ibid. 97 Ibid., at 47. 98 Ibid. 99 Ibid., at 7. 100 Ibid., at 20. 101 Ibid., at 22. 102 Ibid. 103 Weber 2004, at 81–82. 104 Agamben 2018, at 23. 105 Weber 2004, at 81. 106 Ibid., at 83. 95

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identifying and distinguishing an ethic of responsibility versus an ethic of conviction. While the former holds that ‘a Christian does what is right and leaves the outcome to God’ the latter provides that you must answer for the (foreseeable) consequences of your actions.107 What unites Weber and those that write in his wake is that violence is justified as being politically necessary particularly with regard to resisting violence and that this riddle is in the nature of a Faustian pact.

6.5

Conclusion

The Mungiki consciously utilise the etymological associations of their name to ‘people’ to promote a form of Kikuyu nationalism in a complex process of representation of the Kikuyu tribe onward to Kenyans as a whole and then all the way to Africa generally. This process of conflation is (but for defence counsel Khan’s ‘deal with the devil observation above) neither adequately identified nor captured using the mechanism of international criminal trials. This form of Mungiki populism further pushes the distinction between victim and victimiser right to the limit and even beyond. Mungiki’s political and historical antecedents are based very much on control over women’s bodies and sexuality, utilising both physical and structural forms of political violence as the springboard for their authority over the rest of society. This chapter began by noting that Mungiki literally means people and then went on to identifying the direct absence of ‘people’ in international law. It then followed that by looking how Mungiki’s theory and practice of female circumcision was a political act of symbolic violence. That violence perpetrated by the Mungiki against the Kenyan State was then contextualised with regard to the law by reference to the literary trope of the Faustian pact. Given these complexities, prosecution whether domestic, hybridised or international, while necessary to redress the criminal violations committed, can only be one among the necessary responses to the political violence associated with Mungiki.

References Agamben G (1998) Homo Sacer: Sovereign Power and Bare Life. Stanford University Press, Stanford Agamben G (2000) Means Without End: Notes on Politics. University of Minnesota Press, Minneapolis Agamben G (2005) State of Exception. University of Chicago Press, Chicago Agamben G (2011) The Sacrament of Language: An Archaeology of the Oath. Stanford University Press, Stanford

107

Ibid.

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Agamben G (2015) Stasis: Civil War as a Political Paradigm (Homo Sacer II, 2). Edinburgh University Press, Edinburgh Agamben G (2018) Karman: A Brief Treatise on Action, Guilt, and Gesture, Stanford University Press, Stanford Ahlberg BM, Njoroge KM (2013) ‘Not men enough to rule!’: politicization of ethnicities and forcible circumcision of Luo men during the postelection violence in Kenya. Ethnicity & Health 18(5):454–468 Benjamin W (1978) “Critique of Violence”, Reflections: Essays, Aphorisms, Autobiographical Writings. Harcourt Brace Javanovich, New York Derrida J (1990) Force de Loi: La “Fondement Mystique de L’Autorite”/Force of Law: the “Mystical Origin of Authority”. Cardozo Law Review 11(5–6):920–1046 Graf S (2017) To Regain Some Kind of Human Equality: Theorizing the Political Productivity of ‘Crimes against Humanity’. Law, Culture and the Humanities. https://doi.org/10.1177/ 1743872115612326. Accessed 10 April 2019 Goethe JW (2001) Faust: A Tragedy: Interpretive Notes, Contexts, Modern Criticism, 2nd edn. W.W. Norton, New York Harneit-Sievers A, Peters RM (2008) Kenya’s 2007 general election and its aftershocks. Africa Spectrum 43(1):133–144 Hobbes T (2005) Leviathan (Richard Tuck ed). Cambridge University Press, Cambridge Kagwanja PM (2005) Clash of Generations? Youth Identity, Violence and the Politics of Transition in Kenya, 1997–2002. In: Abbink J, van Kessel I (eds) Vanguards and Vandals. Youth, Politics and Conflict in Africa. Brill Publishing, Leiden Kagwanja PM (2009) Courting genocide: Populism, ethno-nationalism and the informalisation of violence in Kenya’s 2008 post-election crisis. Journal of Contemporary African Studies 27(3):365–387 Katumanga M, Cliffe L (2005) Armed violence and poverty in Nairobi: a mini case study for the Armed Violence and Poverty Initiative. Bradford Centre for International Cooperation and Security. https:// bradscholars.brad.ac.uk/bitstream/handle/10454/996/AVPI_Nairobi.pdf?sequence=1&isAllowed=y. Accessed 10 April 2019 Kyle K (1997) The politics of the independence of Kenya. Contemporary British History 11(4):42–65 Lonsdale J (1990) Mau Maus of the Mind: Making Mau Mau and Remaking Kenya. The Journal of African History 31(3):393–421 Mockaitis T R (1992) Minimum force, British counter‐insurgency and the Mau Mau rebellion: A reply. Small Wars & Insurgencies 3(2):87–89 Mudde C, Kaltwasser CR (2013) The Oxford Handbook of Political Ideologies. Oxford Handbook Online. http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199585977.001.0001/ oxfordhb-9780199585977-e-026. Accessed 10 April 2019 Njambi WN (2004) Dualisms and female bodies in representations of African female circumcision. A Feminist Critique. Feminist Theory 5(3):281–303 Rasmussen J (2010) Outwitting the professor of politics? Mungiki narratives of political deception and their role in Kenyan politics. Journal of Eastern African Studies 4(3):435–449 Report of ‘The Commission of Inquiry on Post Election Violence’ (the Waki Commission) Ruteere M (2008) Dilemmas of Crime, Human Rights and the Politics of Mungiki Violence in Kenya. Kenya Human Rights Institute. https://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1462685. Accessed 10 April 2019 Schmitt C (2005) Political theology: four chapters on the concept of sovereignty. University of Chicago Press, Chicago

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Stringer K W (2014) “A Household Divided”: A Fragmented Religious Identity, Resistance and the Mungiki movement among the Kikuyu in Post-colonial Kenya. Dissertation Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University Graduate Program in History https://etd.ohiolink.edu/!etd. send_file?accession=osu1395764314&disposition=inline. Accessed 14 April 2019 Wamue G (2001) Revisiting Our Indigenous Shrines though Mungiki. African Affairs 100(400):453–467 Weber M (2004) The Vocation Lectures. Hackett Publishing, Indianapolis Wolfram R (2012) Preamble. In: Simma Khan D-E, Nolte G, Paulus A (eds) The Charter of The United Nations: A Commentary, 3rd edn. Oxford University Press, Oxford

Chapter 7

Populism and Human Rights Veronika Bílková

Contents 7.1 Introduction........................................................................................................................ 144 7.2 The Concept of Populism and the Populist View(s) on Human Rights.......................... 145 7.2.1 Overview of the Studies of Populism.................................................................... 146 7.2.2 Characteristics of Populism .................................................................................... 148 7.2.3 Populism in Today’s World ................................................................................... 151 7.2.4 Populist View(s) on Human Rights ....................................................................... 153 7.3 Arguments Used by Populists to Criticize Human Rights............................................... 155 7.3.1 Security Argument.................................................................................................. 156 7.3.2 Legitimacy Argument............................................................................................. 161 7.3.3 Democracy Argument............................................................................................. 166 7.4 Concluding Remarks ......................................................................................................... 171 References .................................................................................................................................. 172

Abstract Populism constitutes a challenge to human rights. While populists do not usually reject human rights expressly, they embrace a rather selective and instrumental approach to them, seeking to adjust the concept to their needs. The chapter deals with a particular aspect of the populist challenge to human rights. It identifies, and refutes, three main arguments that populists conventionally use to criticize human rights. These are the security argument, which claims that human rights have to yield to security concerns; the legitimacy argument, which contends that human rights have lost legitimacy, since they have been hijacked by particular groups and agendas; and the democracy argument, which castigates human rights for favouring the interests of minorities over those of the majority. The chapter shows that all these arguments, although they have some merit, suffer from major flaws. They either present the reality in an overly simplified and incomplete way or go against Veronika Bílková is from the Institute of International Relations, Prague. I would like to thank the two anonymous reviewers for their suggestions and comments. All the usual caveats apply. V. Bílková (&) Institute of International Relations, Prague, Czech Republic e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_7

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some of the basic premises on which the whole system of human rights is based. Due to that, populists do not propose any meaningful alternative to the currently prevailing conception of human rights. Keywords Democracy Terrorism

7.1


Human rights
Legitimacy
Populism
Security


Introduction

Populism is on the rise in the world today. Promises to put a stop to the arbitrary and self-serving rule of corrupted elites and to replace it by leadership which acts in compliance with the real will of the people mark the rhetoric of politicians across the political scene and across borders. Far from being confined to non-democratic and totalitarian regimes, populism is increasingly present in countries which have been for a longer or shorter period considered as standard liberal democracies. It is so widespread that scholars have started to consider it as ‘a spectre haunting democracy from which it is hard, perhaps impossible, to escape entirely in modern conditions of a consumption-driven society and a populist free press’.1 While populism might have some positive effects,2 for instance by rousing interest in public affairs, it also entails various risks. The risk that this chapter focuses on relates to the negative impact that populism might have, and indeed has had, on human rights. In its 2017 Annual Report, Human Rights Watch warned that the contemporary rise of populism ‘threatens to reverse the accomplishments of the modern human rights movement’.3 By the same token, the former Commissioner for Human Rights of the Council of Europe Nils Muižnieks indicated in his 2017 conference speech that populism was one of the major causes of the human rights regression in many countries.4 The challenge that populism poses to human rights has also been noted by scholars.5 Populists usually do not reject the concept of human rights expressly. They however embrace a rather selective and instrumental approach to it, seeking to adjust human rights to their needs. In so doing, they undermine the normative consensus which has emerged in the international scene over the past decades and sap the public trust in human rights.

1

Crick 2005, at 631. See also Houwen 2013. Mudde, for instance, considers that “/t/he main good is that populism mobilizes on the basis of political issues that large parts of the population care about, and that the political elites want to keep off the political agenda”. Mudde 2016, at 57. See also Laclau 2005 and Mouffe 2018. 3 Roth 2017, at 1. 4 Muižnieks 2017. 5 Alston 2017; Rodríguez-Garavito and Gomez 2018. 2

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This chapter deals with one particular aspect of the populist challenge to human rights. It identifies, and refutes, three main arguments that populists conventionally use to criticize human rights. These are the security argument, which claims that human rights have to yield to security concerns; the legitimacy argument, which contends that human rights have lost legitimacy, as they have been hijacked by particular groups and agendas; and the democracy argument, which castigates human rights for favouring the interests of minorities over those of the majority. The chapter shows that all these arguments, although they have some merit, suffer from major flaws. They either present the reality in a too simplified and incomplete way or go against some of the basic premises on which the whole system of human rights is based. Due to that, populists are not able to propose any meaningful alternative to the currently prevailing conception of human rights. This chapter does not claim that populists are the only ones resorting to any of the three arguments against human rights, or event to all of them at the same time. Nor does it claim that these arguments are reserved solely to populists. It simply argues that populists, regardless of their concrete political agendas and ideologies they adhere to, are more likely than non-populists to appeal to security, legitimacy and democracy along the lines described in this chapter. It is so, because such an appeal fits well into the vision of the society they seek to promote. The chapter unfolds in two sections. The first section identifies the main tenets of populism and explains why populism has an ambivalent relationship to human rights. The second section introduces, and refutes, the three main arguments used by populists to criticize human rights. The chapter draws on scholarly texts published by legal scholars and political scientists as well as on reports by non-governmental organizations. To illustrate the three arguments, it resorts to statements made by politicians and influential members of political parties whom/which have repeatedly been labelled as populists (Donald Trump – the US, Viktor Orbán – Hungary, Recep Erdogan – Turkey, Hugo Chávez – Venezuela, etc.).

7.2

The Concept of Populism and the Populist View(s) on Human Rights

Populism is one of those terms which are often invoked but rarely defined.6 The term is particularly popular in the political discourse, where it typically serves to brand political opponents as irresponsible and demagogic. As Taguieff aptly puts it, it is used as ‘a label to discredit people, a tool for conflating and stigmatizing certain socio-political phenomena or leaders judged contemptible or dangerous by the one denouncing them’.7 This use of the term has been made possible by the fact that while the definition of populism remains uncertain, the feelings it evokes – those of 6 7

See also Müller 2017 and Moffitt 2016. Taguieff 1997.

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disdain, criticism and condemnation – are largely shared. This turns populism into one of the so called essentially contested concepts.8 Essentially contested concepts give rise to the same assessment (art is good, populism is bad) but not to the same understanding. They ‘inevitably involve endless disputes about their proper uses on the part of their users’.9 Such disputes have indeed been one of the constant features of the political debates on populism. They have also accompanied scholarly research in this area. This section first gives an overview of the studies of populism, and identifies the main features that, despite all the controversies surrounding the concept, are usually imputed to populism. It then discusses the rise of populism in today’s world before finally turning to analyse the uneasy and ambivalent relationship between populism and human rights.

7.2.1

Overview of the Studies of Populism

The term populism entered the political and academic vocabulary at the end of the 19th century, on the two sides of the Atlantic. In the US, its use was first reported in the newspaper articles related to the activities of the US People’s Party, published in 1891 and 1892.10 The People’s Party was a left-wing nationalist party which sought to mobilize the agrarian population of the South and West by a hostile rhetoric directed against the purportedly corrupted elite in Washington. The party was using the term ‘populist’ as a synonym for ‘people’s’, occasionally calling itself the Populist Party. The term, obviously, was supposed to have positive connotations, confirming the close link between the party and the people. Yet, very soon, the connotation changed and populism became a term that is used to affront and stigmatise rather than praise and commend.11 A similar turn occurred in Europe, where the term was also introduced in the late 19th century, primarily to describe the activities of political movements seeking to mobilize the common people (such as Narodnaya Volya in Russia) or centred around a charismatic leader (such as Boulangism in France). In the subsequent decades, the term populism was mostly invoked with respect to the political movements in Latin America and in Central and Eastern Europe (right-wing regimes in Latin America, Fascism in Italy, Nazism in Germany, so-called popular democracies in the Eastern block). As Taguieff, however, rightly notes, ‘the widespread use of term preceded any critical examination of it’.12 First scholarly texts analysing populism appeared already at the end of the 19th century13

8

Gallie 1956. See also Connolly 1993. Gallie 1956, at 169. 10 Houwen 2013, at 39. 11 See McMath 1993. 12 Taguieff 1997, at 1. 13 Le Bon 1896. 9

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and in the inter-war period.14 Systematic research of populism, primarily within the area of political science, started nevertheless only in the 1960s. The founding moment is usually linked to the conference held at the London School of Economics in 1967. The main ambition of the conference was to propose a scholarly definition of populism. Yet, as the two editors of the collected monograph based on the outcomes of the conference, Ionescu and Gellner, wrote in the introduction to the monograph: ‘there can be no doubt about the importance of populism. But no one is quite clear just what it is’.15 Half a century later, this is still largely the case. Pappas in his overview of modern populism distinguishes four main stages in the development of the studies of populism.16 The first stage (pioneers) started in 1967 and lasted through the 1960s and 1970s. It was triggered by the political reality, in which populism was seen to ‘bob up everywhere, but in many and contradictory shapes’.17 The main aim in this period was to find a scholarly definition of populism. Although this aim was not achieved, the first stage ‘sensitized scholars to the importance of this phenomenon and put the study of populism firmly into the agenda of comparative politics’.18 The second stage (classical populism) developed in the 1970s and 1980s. Its protagonists were mainly Latin American scholars and thus, unsurprisingly, the attention was turned to the manifestations of populism in Latin America (Argentina under Perón, Mexico under Cárdenas). The main objects of interest were the socio-economic forces behind populist movements and the role of charismatic leaders within these movements.19 The third stage (neoliberal populism or neopopulism), marking the 1980s and 1990s, kept the focus on Latin America, where a new generation of populist leaders arose. Those leaders (Fujimori in Peru or Collor de Mello in Brazil) managed to combine populism with a neoliberal agenda. Puzzled by this combination, scholars sought to explain its success by turning their attention not only to the socio-economic basis of the movements but also, newly, to the discourse used by their leaders.20 Finally, the fourth stage (contemporaries), which started with the end of the Cold War, has extended the research both in terms of geography and topics. Scholars now analyse populism in regions which escaped attention for several decades (Europe, the US).21 And they concentrate not only on the definition of populism, its sources or its manifestations in specific countries, but also on other aspects, including the impact of populism on democracy and human rights.22 At the

14 15 16 17 18 19 20 21 22

Ortega y Gasset 1932. Ionescu and Gellner 1969, at 1 (emphasis in the original). Pappas 2016. Ionescu and Gellner 1969, at 1. Pappas 2016. See, for instance, O’Donnell 1973. See, for instance, Roberts 1995. See Houwen 2013; Vossen 2010; Inglehart and Norris 2016; Savage 2018. Alston 2017; Rodríguez-Garavito and Gomez 2018; Roth 2017; Urbinati 1998.

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same time, research into populism has ceased to be an almost exclusive domain of political science. Scholars of other disciplines, including legal scholars, have also begun to show an interest in populism. The fourth stage in the development of the studies of populism has been the most productive one. Hundreds of books, articles and policy papers on populism have been published since the early 1990s.23 Yet, despite the fact that research of populism have become ‘one of the most thriving areas of academic research’,24 or maybe partly because of this, scholars still have not been able to come up with a consensual definition of populism. As Pappas shows, they have not even agreed, whether populism is a political movement, a style, an ideology, a discourse, a strategy, a political culture, or all of those.25 Despite that, the concept is not as elusive as it might seem and it is possible to identify some of its main characteristics, as the next subsection will show.

7.2.2

Characteristics of Populism

Canovan notes that the only trait that seems to be shared by all those studying populism is the reliance on the appeals to the people.26 In the period in which most political systems are, or at least claim to be, democracies built on the will of the people, such an understanding risks rendering the whole concept unhelpful. Another problem arises due to the misuse of the term in the political discourse. As Mudde notes, there are two dominant interpretations of populism, both negatively charged.27 The first refers to a ‘highly emotional and simplistic discourse that is directed at the “gut feelings” of the people’.28 The second refers to opportunistic politics aimed at quickly pleasing the people/voters and so buying their support. In the two cases, the term is invoked to brand, and discredit, political opponents. This would seem to confirm that Dahrendorf is right when noting, in paraphrasing the well-known quote about terrorism, that ‘the one’s populism, is other one’s democracy, and vice versa’.29 Yet, if this is so, then the concept of populism is devoid of any analytical value. To have such a value, it has to be used as a descriptive, rather than evaluative concept and it has to get a more specific meaning than the one indicated by Canovan. Several scholars have put forward definitions of populism which meet these conditions rather well and which, moreover, largely overlap. Mudde proposes

23 24 25 26 27 28 29

See also Kaltwasser et al. 2017. Pappas 2016. Pappas 2016. Canovan 1984, at 313. Mudde 2004, at 542. Mudde 2004, at 542. Dahrendorf cit. in Mudde 2004, at 543.

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to define populism as ‘an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people’.30 For Albertazzi and McDonnell, populism is an ideology which pits a virtuous and homogeneous people against a set of elites and dangerous ‘others’ who are together depicted as depriving (or attempting to deprive) the sovereign people of their rights, values, prosperity, identity and voice.31

In a similar vein, Krastev notes that the defining feature of populism is the view that society falls into two homogenous and antagonistic groups: “the people as such” and “the corrupt elite”. It proceeds to argue that politics is the expression of the general will of the people and that the social change is possible only via the radical change of the elite.32

In this shared understanding, populism is both an ideology and a political style and it reveals several characteristics. First, populism presupposes the existence of the people as a uniform, homogeneous and virtuous entity. The people ‘are one and are inherently “good”’.33 Populism does not deny that there may be certain differences (ideological, social, political, religious etc.) among individual members of society. It nonetheless sees these differences as minor and unimportant, in comparison with what all the people have in common. The shared core is usually described in general terms, by reference to traditions, identity, values, or common heritage. Although these terms usually get a national, religious or political qualifier (Hungarian identity, Christian traditions, socialist values, etc.), they remain vague and imprecise. That allows populists to broaden or narrow the understanding of the people according to their needs. By putting an emphasis on the unity of the people, populism is anti-pluralist in its orientation. Secondly, populism postulates that the good and virtuous people are in the antagonistic position vis-à-vis the elite. As rightly noted by Rodríguez-Garavito and Gomez, ‘who exactly constitutes the elite and the people is fluid—it depends on the sociopolitical context and the power play between relevant groups and factions’.34 The elite is not necessarily unelected or autocratic. It may well be elected by the people itself. Yet it has stopped representing the people and attending to their interests. Instead, it serves the interests of some dangerous forces operating from behind the scene, such as international institutions, the financial sector or well-organized minorities (rich people, Jews, homosexuals, migrants, neo-Marxists, feminists, etc.). Populism ‘reflects a deep cynicism and resentment of existing

30

Mudde 2004, at 543 (emphasis in the original). Albertazzi and McDonnell 2008, at 3. 32 I Krastev (2007), The Populist Moment, Eurozine, 18 September 2007, https://www.eurozine. com/the-populist-moment/, accessed 4 January 2019. 33 Albertazzi and McDonnell 2008, at 6. 34 Rodríguez-Garavito and Gomez 2018, at 18. 31

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authorities’.35 The elite is bad and corrupted. It has betrayed the people and hijacked the agenda to please its ‘real masters’. The elite is despised, as are its masters, who are typically selected from among groups that seem to defy the homogeneity of the people. Populism is thus anti-elitist in its orientation. Thirdly, the antagonism between the people and the elite (and the dangerous forces behind it) is deep and cannot be surmounted through normal political processes. The elite and its masters constitute a vital threat to the people, as they seek to destroy its traditions, values and identity. The threat is serious and imminent. Populism stresses the urgency of the situation, proposing a Manichean vision thereof. It is now or never. It is us or them. It is victory or annihilation. No room is left for weakness, concessions, compromises or empathy. The hostile campaign is directed both against the elite and against its ‘real masters’. This is reflected in the combination of anti-elitism with some forms of xenophobia (antisemitism, homophobia, misogyny, racism, etc.) that are conventionally present in populist movements. Populists need to uncover or, rather, produce enemies. Populism is thus exclusivist and confrontational in its orientation. Fourthly, ‘fortunately’ for the people, there is someone – an individual or a movement – who understands its real needs and interests and is ready to defend them. The ‘saviour’ often comes from the same circles as the elite or may even be part of the elite. Yet, he differs from it by the fact that he understands the people, cares for the people and stands with the people. He is there to speak on behalf of the majority, which has been devoid of a meaningful voice in the public debate (the idea of the silent majority). Led by its leader, the people can take the power back and save its traditions, values and identity from destruction. Populism favours ‘personal power exercised by strong and charismatic leadership’ and ‘direct forms of majoritarian democracy for the expression of the voice of the people’.36 There is no need for intermediaries (elected representatives, media, etc.) and no need for any organs or mechanisms that would control the leader (non-governmental organizations, international institutions, etc.), as the people themselves can do so. There is also no room for other political forces, since ‘only the populist authentically identifies and represents this real or true people’.37 Populism is thus anti-democratic in its orientation. Defined in this way, populism, as Mudde rightly states,38 is opposed to two other ideologies or political styles – elitism and pluralism. Elitism shares with populism the idea of the world being divided between the people and the elite. It differs from it in the assessment of these forces, seeing the good and virtuous in the elite. Pluralism, in its turn, rejects the Manichean view, suggesting that society is composed of various social, political and ideological strands and that politics should form a compromise among them. Mudde is also right in noting that although

35 36 37 38

Inglehart and Norris 2016, at 6. Inglehart and Norris 2016, at 7. Müller 2017, at 22–23. Mudde 2004, at 543–544.

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populism may qualify as an ideology, it is a ‘thin-centred ideology’.39 It can therefore be combined with various thick-centred ideologies, such as neoliberalism, socialism, nationalism or communism. That explains why populism comes in so many different forms and why populists are to be found both on the right and the left sides of the political scene.

7.2.3

Populism in Today’s World

Appeals to the true will of the people and attempts to build one’s political career on the mobilization of the ‘silent majority’ are probably as old as politics itself. Yet, the golden age of populism has only come in the modern age.40 It has been brought about by the abolition of the rigid estate structure of society and the introduction of universal suffrage as well as, in recent decades, by the spread of media, including social media. When the political leaders are (s)elected by the people, then seeking to please the people and persuade it that you are on its side becomes vital. Research also shows that while populism is present in virtually all modern societies, it flourishes especially well in societies in transition and in societies facing some (real or perceived) crisis.41 Instability, uncertainty and fear make people look for firm ground, established values and strong leaders. They also make people willing to believe that the problems they face can be blamed upon concrete human agents and easily solved by the removal of such agents. This helps to explain why the recent years, marked by globalization, economic difficulties, the spread of transnational terrorism and the migration crisis, have been favourable to the rise of populism. It is not the ambition of this chapter to provide an exhaustive list of populist movements or politicians from various countries.42 It would also be difficult to do so, because a lot of political forces resort to some populist strategies or arguments on at least an occasional basis. In fact, no country, and no political current, is probably completely free of populism. At the same time, there are certain politicians and political parties for which a large consensus seems to exist that they resort to populist strategies in an extensive way. For this chapter, political leaders and political parties that occupy the highest positions in their countries (heads of state, prime ministers, leading government parties, etc.) are of particular relevance. They have the capacity to define and revise their countries’ position on human rights and they contribute to the discussions about human rights held on the international scene, primarily within international organizations (UN General Assembly, UN Human Rights Council, Council of Europe, etc.).

39

Mudde 2004, at 544. See Galston 2018. 41 Mudde 2004. See also Swallow 2018. 42 For an attempt to propose a list of populist parties operating in Europe, see Inglehart and Norris 2016, at 44. 40

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The political leaders and political parties meeting these criteria encompass, but are certainly not limited to, the US president Donald Trump, the Turkish president Recep T. Erdogan, the prime minister of Hungary Viktor Orbán and his party Fidesz, the former prime minister of Poland Jaroslaw Kaczyński and his party Prawo i Sprawiedliwość (PiS), the Bolivian president Evo Morales, the former Ecuadorian president Rafael Correa or the former and current Venezuelan presidents Hugo Chávez and Nicolás Maduro. Since, as we saw above, populism can be combined with many ideological strands, it is not surprising that the list contains both right-wing and left-wing politicians. The dominance of the former, rather than reflecting any inherent inclinations of populism, is simply contingent on the contemporary political situation in Europe and the US, where right-wing political leaders and parties have in the recent period been more successful in mobilizing voters and getting to power than their left-wing counterparts. As the examples from Latin America shows, the situation is not necessarily the same in other parts of the world. The US president Trump is considered one of the icons of modern populism. Having analysed his statements, Hunston concluded that Trump’s language is highly distinctive, but […] this distinctiveness aligns him with scenarios of casual conversation. Although his language, both in content and in style, is odd for a political leader, it is familiar to his audience. It is the true language of populism.43

Erdogan’s rule in Turkey has been described as ‘an illustrative example to make sense of populism as a medium of mass mobilization’.44 In its 2017 Nations in Transit Report, the Freedom House entitles the chapter on Hungary and Poland The Populist Assaults on Democracy, noting that ‘[i]n these countries, populist leaders have attacked constitutional courts, undermined checks and balances, and have turned public media into propaganda arms’.45 And already in 2007, building on his extensive research of political movements in Latin America, De la Torre noted that ‘the nationalist and anti-imperialist rhetoric of Presidents Hugo Chávez of Venezuela, Evo Morales of Bolivia, and Rafael Correa of Ecuador ha[d] provoked passionate debates on whether or not we are experiencing a rebirth of radical-national populism’.46 This chapter does not intend to provide a detailed analysis or comparison of the statements made by the selected politicians and their

43 S Hunston, Donald Trump and the language of populism, University of Birmingham, 2 September 2017, https://www.birmingham.ac.uk/research/perspective/donald-trump-language-ofpopulism.aspx, accessed 4 January 2019. 44 Turk 2018. 45 N Schenkkan, Freedom House, Nations in Transit 2017: The False Promise of Populism, 3 April 2017, https://freedomhouse.org/article/nations-transit-2017-false-promise-populism, accessed 4 January 2019. 46 De la Torre 2007, at 384. See also De la Torre 2016.

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political colleagues and advisors. It simply uses these statements to illustrate and demonstrate the position that populists adopt with respect to human rights.

7.2.4

Populist View(s) on Human Rights

Populism in not a priori, and straightforwardly, inimical to human rights. It, in fact, accommodates a whole variety of approaches to human rights, oscillating from a virtually straight rejection to a conditional embrace. This is partly due to the diversity of thick-centred ideologies to which populism can be wedded. Moreover, populism itself contains elements that are supportive of human rights and those that are less, or not at all, so. Because of the simultaneous presence of these two categories of elements, populists have an uneasy and somewhat ambivalent relationship to human rights. The category of pro-human rights elements includes, first and foremost, the shared ideological grounds of populism and human rights. It is by no means a mere coincidence that the two have gained prominence in the same period, starting from the end of the 19th century. They equally presuppose a society devoid of formal hierarchy in which decisions are made with the participation of the people. Legitimizing their policy by the will of the people, populists can hardly deny that individuals making up the people have some rights that deserve protection. In fact, disregard for these rights by the elite often serves as an argument that populists invoke in their struggle to get rid of the current elite and to (re)gain power. Furthermore, populists rarely place themselves completely outside the current political system and its normative framework. They promise to make the system work better, not to destroy it altogether. From a more pragmatic perspective, rejecting human rights would not necessarily render populists popular with their supporters, either because the supporters treasure the idea of human rights, or due to the practical impact that the rejection of human rights would have for them. Another reason that militates against a strictly anti-human rights stance relates to the interests that populist movements have in keeping a good reputation for themselves and, if they take part in the government, for their country. Despite all those heralding ‘the endtimes of human rights’,47 human rights have by now become so firmly entangled in the normative web of international relations, that it is difficult to reject the concept without losing the face of a decent and civilized (inter)national actor. Populists thus have good reasons not to oppose the concept of human rights as such. In fact, they may even portray

47

Hopgood 2016.

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themselves as the champions of human rights if they consider that this position would increase their support domestically or internationally.48 At the same time, populists have difficulty in embracing the concept of human rights without reservations. The first factor, again, relates to the ideological grounds of populism and human rights. Now, however, the emphasis is placed on the differences between the two. Populism, as we saw, is collectivist, anti-pluralist and exclusivist in its approach. It focuses on ‘the people’, which is considered a uniform, homogenous entity. Those belonging to this entity share the same values and interests and due to that, they – and only they – are entitled to rights (treated as special privileges attributed on the grounds of the membership in a collective entity). The concept of human rights, on the contrary, is individualist, pluralist and inclusivist in its approach. It deals with ‘people’, i.e. a sum of individuals who may have diverse values and interests but despite that, they – all of them with no exception – are entitled to equal rights (treated as universally shared goods belonging to all human beings on the grounds of their humanity). As Rodríguez-Garavito and Gomez note, populists are geared towards ‘the conclusion that only the “real people” deserve full recognition as rights holders. This clashes directly with human rights standards and aspirations asserting the intrinsic dignity of all people as rights holders’.49 Another ideological feature of populism which makes its proponents embrace an anti-human rights stance is the ‘moral logic of Us versus Them’.50 Populists need to provide the people with enemies and scapegoats. These enemies are not only excluded from the community. They also have to be publicly despised, humiliated and, if need be, mistreated. As Amnesty International noted in 2017 ‘[d]ivisive fear-mongering has become a dangerous force in world affairs. Whether it is Trump, Orban, Erdoğan or Duterte, more and more politicians calling themselves anti-establishment are wielding a toxic agenda that hounds, scapegoats and dehumanizes entire groups of people’.51 Populists thrive on the wrath of the people, or rather some segments thereof, and seek to turn this wrath against anyone they label as a threat to the people, i.e. usually all their political opponents as well as unpopular minorities. This, of course, goes against the main tenets of human rights which build on the inherent dignity of all individuals and promote the protection of minorities. Populists thus have ideological reasons to treat human rights with caution. They also have pragmatic reasons to do so. Human rights may constitute an impediment in the implementation of the promises that populists make to their 48

See, for instance, Presidency of the Republic of Turkey, President Recep Tayyip Erdogan’s Statement on the Death Sentences Issued in Egypt, 16 June 2015, and Presidency of the Republic of Turkey, President Recep Tayyip Erdogan’s Message on Human Rights Day, 9 December 2017. 49 Rodríguez-Garavito and Gomez 2018, at 20. 50 Rodríguez-Garavito and Gomez 2018, at 22. 51 Amnesty International, ‘Politics of demonization’ breeding division and fear, 22 February 2017, https://www.amnesty.org/en/latest/news/2017/02/amnesty-international-annual-report-201617/, accessed 4 January 2019.

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supporters. They set limits on the steps carried out to remove and/or punish members of the former – allegedly corrupted – elite. They prevent populists from depriving unpopular minorities of their rights and introducing discriminatory measures against them. In a more general manner, human rights guarantees are among the obstacles on the way to absolute power that at least some populist movements may wish to acquire. Pragmatic reasons also, again, encompass considerations of the reputation of the populist movement and of the country led by it. In some instances, for example when the movement seeks alliances with similar political forces from other countries or when its supporters are not particularly fond of human rights, these considerations may motivate it to reject human rights. The same applies when the country led by a populist movement decides to strengthen the relationships with states which are not numbered among fervent human rights advocates. The combination of all these different elements gives rise to a variety of approaches to human rights on the side of populist politicians and movements, depending on the underlying thick-centred ideology that they embrace, and on the concrete context in which they operate. Despite that variety, it is possible to say that while some populists may have an extreme view of human rights (in the negative or positive sense), most opt for what could be described as a middle ground position. On the one hand, they do not reject the concept of human rights as such. On the other hand, they express discontent over the way in which human rights, or at least some human rights (or the human rights of some), are now understood and interpreted. The criticism is usually phrased in general and imprecise terms, with repeated appeals to the preferential treatment (allegedly) accorded to certain groups at the expense of the majority. These allegations bring about calls for a revision of the approach to human rights that would imply a return to the original ethos or a redefinition of the concept in light of new needs of the people. Three arguments are conventionally used in this context to explain what is wrong with human rights and how the problem could and should be fixed. These arguments will be introduced, and refuted, in the next section.

7.3

Arguments Used by Populists to Criticize Human Rights

There are three main arguments that populist use to criticize the concept of human rights. The arguments can be invoked separately but they can also be combined. As indicated above, none of the arguments are reserved to populists only. Yet, due to the appeal to the people, traditions, or the conspiracy of the elite, they all fit particularly well into the populist interpretation of the world. The first argument is the security argument. It builds on security concerns, especially those related to terrorism and, more recently, to migration. It alleges that human rights as currently understood prevent states from countering modern security threats and from ensuring an adequate protection of the people. The second argument is the

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legitimacy argument. It contends that the human rights project has stopped serving its original purpose, that of guaranteeing the well-being of the people. It has been hijacked to serve particular groups and promote particular agendas. The third argument is the democracy argument. It postulates that the concept of human rights is at odds with the principle of democracy, because it favours the interests of minorities over those of the majority. This section will introduce each of the three arguments in more detail. It will also show that they all suffer from major flaws.

7.3.1

Security Argument

The security argument presents human rights as an obstacle which makes it impossible for states to effectively protect the population from modern security threats, such as terrorism or, more recently, migration. By doing so, human rights themselves have become a security threat. This argument is often corroborated by the ‘times have changed’ discourse. It is argued that while human rights might have been a relevant and adequate tool when introduced at the international level in the mid-20th century, they have not been able to keep track with the subsequent changes. The mid-20th century was marked by the existence of a large number of states ruled by totalitarian or autocratic regimes. Those states – Fascist Italy, Nazi Germany or Communist USSR – constituted the main threat to the life and well-being of individuals. The primary aim of human rights, introduced to help counter this threat, was thus to tie the hands of governments. Yet times have changed since then. Over the past decades, a large number of states have embraced the democratic form of government. And although these states also engage in problematic practices from time to time, their human rights record is much better than that of their totalitarian or autocratic predecessors (or peers). They no longer constitute the main threat to their inhabitants. In the meantime, new security risks have emerged. While states have been to a large extent tamed, non-state actors have taken over. Human rights fail to address the threat posed by these actors. Worse than that, by continuing to tie the hands of governments, they prevent the latter from taking adequate measures to counter this threat. As Human Rights Watch put it in its 2017 report, ‘a growing number of people have come to see rights not as protecting them from the state but as undermining governmental efforts to defend them’.52 Alston agrees noting that [t]his is not only a strategy pursued by governments of many different stripes, but one that has been sold with remarkable success to the broader public. People are now widely convinced that security can only be achieved through making enormous trade-offs, whether in terms of freedom of movement, privacy, non-discrimination norms, or even personal integrity guarantees.53

52 53

Roth 2017, at 2. Alston 2017, at 4.

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The two threats which have gained special prominence in the security argument are terrorism and migration. Terrorism is not a new threat but the attention paid to it has dramatically increased since the attacks of 11 September 2001. Since then, also, it has been argued that, as one CIA specialist put it, ‘there was a before 9/11 and there was an after 9/11. After 9/11, the gloves came off’.54 Another CIA specialist indicated that in the so-called war against terror ‘[i]f you don’t violate someone’s human rights some of the time, you probably aren’t doing your job’.55 More recently, when defending her plan to further restrict the freedoms of terrorist suspects, the UK Prime Minister Theresa May stated that ‘[i]f human rights laws stop us from doing it, we will change those laws so we can do it’.56 Similarly, after the attempted coup d’état in the summer of 2016, Turkey introduced harsh measures against alleged putchists and even started to consider reinstating the death penalty. When faced with international criticism, President Erdogan claimed that the emergency measures were necessary to combat terrorism and that those disapproving of violations of human rights resulting from them were supporting terrorists against the Turkish people.57 These statements show that in the fight against terrorism, human rights are often seen not as a part of the solution but as a part of the problem. The same applies to migration. The rapid increase in the number of migrants and asylum seekers heading to Europe since 2014 has given rise to security, and also identity, concerns. The same concerns have arisen in the US, due to the large number of migrants coming to the country from Latin America. It has been argued that to address these concerns, states should be free to adopt any measures they find necessary without having to bother with some human rights ‘niceties’. In his 2017 conference speech, Viktor Orbán warned that Europe was at the risk of losing its identity within a generation and accused the European Court of Human Rights of being complicit in this process, as its decisions allegedly ‘pose a threat to the security of the European people’.58 In a similar vein, the US administration introduced certain measures to counter migration that were clearly incompatible with human rights standards, such as the separation of children from their parents. When defending this measure, Trump presented it as the only alternative to opening 54

Frontline, Top Secret America, 30 April 2013, http://www.pbs.org/wgbh/pages/frontline/iraqwar-on-terror/topsecretamerica/transcript-6/, accessed 4 January 2019. 55 S Goldenberg, CIA accused of torture at Bagram base, The Guardian, 27 December 2002, https://www.theguardian.com/world/2002/dec/27/usa.afghanistan, accessed 4 January 2019. 56 The Guardian, May: I’ll rip up human rights laws that impede new terror legislation, 6 June 2017, https://www.theguardian.com/politics/2017/jun/06/theresa-may-rip-up-human-rights-lawsimpede-new-terror-legislation, accessed 4 January 2019. 57 Cit. in E Graham-Harrison and S Kirchgaessner, The west is supporting terrorism against Turkey, claims Erdogan, The Guardian, 2 August 2016, https://www.theguardian.com/world/ 2016/aug/02/the-west-is-supporting-terrorism-against-turkey-claims-erdogan, accessed 4 January 2019. 58 T Székely, Hungarian Prime Minister: “Figurehead” EPP Must Advocate “National Pride and Christian Identity”, Hungary Today, 30 March 2017, https://hungarytoday.hu/figurehead-eppmust-advocate-national-pride-christian-identity-hungarian-prime-minsiter-tells-malta-congress36177/, accessed 4 January 2019.

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borders to those whom he labelled as ‘animals’.59 He also advocated other measures such as the deportation of illegal migrants without any due process guarantees.60 Promoting the fight against terrorism and the need to solve the migration crisis and criticizing the limits that human rights place on states in this context is not per se illegitimate. Nor is it reserved to populists only. Yet, populists find these topics and the security argument surrounding them particularly well fitting into their worldview. It is so for three main reasons. First, the security argument also works with the dichotomous vision of reality and the us versus them logic, as populists do. It is true that them primarily refers to the actors constituting the security threat (terrorists, migrants), not to the elite. Yet, it is not difficult for populists to establish a link between the two. For instance, Orbán has repeatedly suggested that the current migration wave has in reality been triggered by the network of US Jewish businessman of Hungarian origin George Soros, and supported by the EU leftist elite whom Orbán denoted as traitors.61 Secondly, the security argument resonates well with populists, as it recognizes the existence of a vital threat to the people. To quote Orbán again: ‘Europe is now under invasion. […] The situation is […] that those who don’t block migration at their borders will be lost.’62 This quote also exemplifies the third reason that makes populists so fond of the security argument. It is the emphasis placed on the urgency and imminence of the threat and on the need to take radical action to counter the threat as soon as possible. There is little doubt that the security threats have indeed changed since the mid-20th century, though the extent of such changes may be somewhat exaggerated. There is also little doubt that terrorism and negative side-effects of massive migration are among the most serious contemporary security threats, and that states have the right, or even a duty, to protect their inhabitants from such threats.63 This, however, does not mean that human rights are an obstacle to the realization of this

Cit. in G Korte and A Gomez, Trump ramps up rhetoric on undocumented immigrants: ‘These aren’t people. These are animals’, USA Today, 17 May 2018, https://eu.usatoday.com/story/news/ politics/2018/05/16/trump-immigrants-animals-mexico-democrats-sanctuary-cities/617252002/, accessed 4 January 2019. 60 E Cranley, Trump tweets he wants to deport illegal immigrants ‘with no Judges or Court Cases’ – a move that would violate due process, Business Insider, 24 June 2018, https://www. businessinsider.nl/trump-tweets-deport-illegal-immigrants-no-judges-court-cases-2018-6/, accessed 4 January 2019. 61 C Tomlinson, Victor Orban: European Union is Following ‘Soros Migrant Plans’, Breitbart, 10 July 2017, https://www.breitbart.com/europe/2017/07/10/viktor-orban-claims-european-unionfollowing-soros-migrant-plans/, accessed 7 January 2019. 62 Cit. in S Walker, Hungarian leader says Europe is now ‘under invasion’ by migrants, The Guardian, 15 March 2018, https://www.theguardian.com/world/2018/mar/15/hungarian-leadersays-europe-is-now-under-invasion-by-migrants, accessed 7 January 2019. See also Visegrad Post (2018) “The West will fall, as Europe is occupied without realising it,” said Viktor Orbán. “Christianity is the last hope”. 20 February 2018, https://visegradpost.com/en/2018/02/20/thewest-will-fall-as-europe-is-occupied-without-realising-it-said-viktor-orban-christianity-is-the-lasthope-full-speech/, accessed 7 January 2019. 63 See Lazarus 2012 and Lazarus 2015. 59

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right/duty. Populists are rarely specific as to which human rights and for what reasons stand in the way of the measures they advocate for. General images such as that of a balance having security on one scale and human rights on the other are used without further specification. It is simply suggested that human rights have become obsolete and need to be reformed in light of the recent developments. As the UK Home Secretary John Reid held in 2007, ‘we need to work to modernise the law – still protecting human rights and still providing equity and justice, but reflecting the reality of the conflicts and struggles we now face’.64 The security argument is deficient or incomplete on several accounts. First, it falsely presents security as a counter-balance to human rights. Human rights instruments in their catalogues conventionally enshrine the right to security (see Article 9 of the International Covenant on Civil and Political Rights (ICCPR) or Article 5 of the European Convention on Human Rights (ECHR)). Security concerns are therefore not external to human rights. They are an inherent part thereof. As Amnesty International held in 2003, ‘the right to security is a basic human right’.65 At the same time, the right to security is not an absolute trump that would automatically prevail over other rights, such as the right to liberty, the right to physical integrity, or the right to privacy. It is here, within the human rights system, that the balancing takes place. It is a complex process which cannot be reduced to a simple ‘fewer human rights – more security’ maxim. In his 2006 article, David Luban manifests several fallacies involved in these types of maxims.66 These fallacies encompass, inter alia, the underrating of the fact that limitations and/or violations of human rights could decrease security rather than increase it; that victims of such violations might turn to violent means; and that national authorities may abuse the extended powers and become themselves a threat to security. Thus, for instance, sanctioning the mistreatment of terrorist suspects, a measure portrayed as one enhancing security, may achieve the opposite result by giving the authorities the power to treat anyone they see, rightly or wrongly, as a terrorist suspect in the way they find appropriate. Secondly, those promoting the security argument often fail to take into account, and make use of, the tools that human rights law offers to make the balancing exercise possible and to set some rules for it.67 Most human rights are not absolute, they can be limited in the interest of national security or public safety (see Articles 12–14, 19, 21–22 of the ICCPR and Articles 8–11 of the ECHR). Moreover, in serious emergency situations, states may suspend most human rights for a temporary period and to the extent necessary to counter the cause of the emergency (see

64 BBC News, Reid urges human rights shake-up, 12 May 2007, http://news.bbc.co.uk/2/hi/uk_ news/politics/6648849.stm, accessed 7 January 2019. 65 Schulz W (2003) Safer or Scared? Impact of the War on Terror. CNN. 28 May 2003, http:// transcripts.cnn.com/TRANSCRIPTS/0305/28/lol.06.html, accessed 7 January 2019. 66 Luban 2006. 67 See Oraá 1992.

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Article 4 of the ICCPR and Article 15 of the ECHR).68 Temporary suspensions, also known as derogations, are resorted to relatively rarely. Over the past two decades, only a few countries (France, Turkey, the UK, and arguably Ukraine) have derogated from human rights instruments in connection with the fight against terrorism. No country has derogated in connection with the migration crisis. Provided that derogation is intended for exceptional situations when a state is confronted with ‘war or other public emergency threatening the life of the nation’ (Article 15 ECHR), it would seem an ideal tool for those who want to counter an urgent threat. Yet, derogation is subject to strict conditions both with respect to time – it is temporary – and to the content the principle of proportionality applies. It also has to be reported at the international level. It thus leaves states with less discretion than exceptional measures adopted without a legal basis and presented as a new way to counter new threats. Thirdly, the security argument invokes the metaphor of balance. Yet, in reality, its proponents are reluctant to engage in any balancing. They assume that, in Reid’s words, ‘[t]he right to security, to the protection of life and liberty, is and should be the basic right on which all others are based’.69 The right to security is therefore treated as a trump. This is particularly dangerous given that the substance of the right to security, as Lazarus rightly notes, ‘is connected to perceptions of future risk which are notoriously opaque’.70 Moreover, the ideal of absolute security, which the security argument invokes, is simply out of reality. Security, as Waldron notes, ‘is not an all-or-nothing matter, but a matter of more or less’.71 Some even argue that there should be a right to insecurity, as freedom always entails risks.72 Yet, many people are seduced by the idea of a risk-free society where life would be safe and predictable and where no threats and no accidents would happen. The promise to construe such a society can easily be turned into an instrument of permanent control over the society. In Lazarus’ words, ‘the amorphous right to security can be used to legitimize measures in political rhetoric that threaten the other rights that security is meant to be “securing”’.73 Striving for absolute security may lead to the situation in which not only the population will not enjoy more security but, furthermore, it will lose on other fronts, with respect to other human rights (the right to privacy, freedom of expression, etc.). And the loss will lie with the population at large, because it is simply not possible to ensure control of societal life without measures that would be applicable to all members of society. The security argument builds on legitimate concerns stirred by the changes in the nature of security threats that have occurred over the past decades. It draws

68

See also Higgins 1977. BBC News, Reid urges human rights shake-up, 12 May 2007, http://news.bbc.co.uk/2/hi/uk_ news/politics/6648849.stm, accessed 7 January 2019. 70 Lazarus 2015, at 438. 71 Waldron 2011, at 218. 72 See Lazarus 2012. 73 Lazarus 2015, at 439. 69

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attention to the fact that the main human rights instruments were adopted in times when individuals had to be primarily shielded from their own government. Democratization of many countries on the one hand and the rise of non-state actors on the other hand have changed the landscape. This, however, does not entail that human rights have become obsolete or, even, that they now prevent states from protecting their population. When claiming so, populists use the false metaphor of balance which fails to reflect the complex reality. Security concerns are not exogenous to the human rights system. They are part of this system. Moreover, human rights instruments foresee tools that allow states to limit, or even temporarily suspend, some human rights guarantees, if security concerns dictate so. Yet, such tools require a careful consideration of all the interests at stake. Rather than making use of them, populists thus prefer to simply reject human rights guarantees as outdated and/or impractical and to adopt special measures fitting their political needs. Such measures however may jeopardize the well-being of the population no less than the security threats they are supposed to counter. The security argument is therefore not only simplified and incomplete but also potentially dangerous, even to those supporting populists.

7.3.2

Legitimacy Argument

The legitimacy argument contends that the human rights project has stopped serving its original purpose, because it has been hijacked. The original purpose was to protect the people, reflecting the concerns of the majority of society. Yet, over time, the project has given up on this mission and has started to serve particular groups and promote particular agendas. This is due to a coordinated effort by the elite, the dark forces behind it and certain unelected bodies such as international human rights courts. Since they are now ‘made’ (defined, implemented, interpreted and enforced) by a minority, with no involvement of the people, and for the sake of minorities, ignoring the concerns of the majority, human rights have lost their original legitimacy. They have been turned into a tool of oppression that the alienated elites use to promote the interests of a few at the expense of the interests of many. Whereas minorities go on clamouring for more and more rights, the concerns of the common people are neglected and these people are ignored or, even, discriminated against. A return to the original ethos is thus required to make human rights legitimate and relevant to the broader society again.74 The first critique under the legitimacy argument thus posits that human rights now only serve minority interests at the expense of the interests of the majority. ‘Encouraged by populists’, Human Rights Watch notes in its 2017 report, ‘an expanding segment of the public sees rights as protecting only these “other” people,

74

See E Posner, The case against human rights, The Guardian, 4 December 2014, https://www. theguardian.com/news/2014/dec/04/-sp-case-against-human-rights, accessed 7 January 2019.

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not themselves, and thus as dispensable’.75 Human rights have allegedly become a tool that minorities use to advance their interests at the expense of the majority. When criticizing the activities of the ombudswoman in the Czech Republic in 2018, the leader of the Czech populist Party of Direct Democracy Tomio Okamura stated that ‘the main work of the ombudsperson is the discrimination of the majority in favour of problematic minorities. [S]he has no time for human rights of a normal working heterosexual white man’.76 The image of a ‘normal working heterosexual white man’, who is discriminated against because of the rights that other individuals – women, coloured people, LGBT, etc. – have, is often invoked in the statements of populists. It is also closely linked to the invocations of traditional values and traditional society that populists would like to restore and in which ‘normal working heterosexual white men’ would play the leading role again. The surveys show that Trump’s ‘Let’s Make America Great Again’ was interpreted by many as a promise of such a return to ‘normalcy’.77 In addition to suggesting that human rights now only protect certain groups, the legitimacy argument also posits that the concept exclusively serves to promote particular agendas or topics. This criticism is often related to laments over the so-called proliferation of human rights.78 It is suggested that ‘[h]uman rights once enshrined the most basic principles of human freedom and dignity; today, they can include anything from the right to international solidarity to the right to peace’.79 And that ‘[t]he sheer quantity and variety of rights, which protect virtually all human interests, can provide no guidance to governments. Given that all governments have limited budgets, protecting one human right might prevent a government from protecting another’.80 The fear thus is that the proliferation of human rights not only creates a landscape in which it is more and more difficult to navigate but also that it deviates attention and resources away from those human rights that are truly fundamental. For some, these are the classical first-generation civil and political rights, such as the right to liberty, property, privacy or freedom of expression. For others, these are any rights that may be, at a given moment, crucial for the majority in society. The shared idea is that ‘[r]espect for human rights

75

Human Rights Watch 2017, at 2. S Karlesz, Okamura a Klaus ml. se pustili do Šabatové: Diskriminuje bělochy na úkor menšin!, Expres, 29 June 2018, https://www.expres.cz/tomio-okamura-vaclav-klaus-sabatova-db8-/zpravy. aspx?c=A180629_134127_dx-zpravy_stes, accessed 7 January 2019. 77 M Kimmel, Trump’s angry white men, The World Today, Chatham House, December & January 2017/18, https://www.chathamhouse.org/publications/twt/trump-s-angry-white-men, accessed 7 January 2019. 78 Wellman 1999. 79 J Mchangama and G Verdirame, The Danger of Human Rights Proliferation: When Defending Liberty, Less Is More, Foreign Affairs, 24 July 2013, https://www.foreignaffairs.com/articles/ europe/2013-07-24/danger-human-rights-proliferation, accessed 7 January 2019. 80 E Posner, The case against human rights, The Guardian, 4 December 2014, https://www. theguardian.com/news/2014/dec/04/-sp-case-against-human-rights, accessed 7 January 2019. 76

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around the world would likely be stronger if human rights law had stuck to a narrower and more clearly defined group of rights’.81 Finally, the legitimacy argument seeks to unveil the forces which are behind the recent development of human rights. Originally, human rights instruments were negotiated by the true elites representing the will of the people. Yet, over time, the agenda has been taken over by the alienated elites that no longer represent, and care for, the people. Unelected bodies, such as non-governmental organizations or international human rights bodies second the elites in their campaign. Orbán, for instance, is persuaded that his country, Hungary, and Europe at large face a conspiracy whose aim is to destroy the original national culture(s) and to turn the whole continent into an immigration land. The mastermind behind the conspiracy is George Soros, who controls the elite at the EU and national level.82 He is seconded in his plans by non-governmental organizations and various international institutions, such as the Venice Commission of the Council of Europe. When the Commission issued, in June 2018, a critical opinion on the Stop Soros legislative package criminalizing virtually any help to migrants, the Hungarian government rejected the opinion declaring that ‘[f]or the government Hungary comes first, and it will therefore protect the Hungarian people even if the Venice Commission and the Soros network do not like this’.83 A similar conspiracy has been ‘discovered’ in Latin America. When denouncing the American Convention on Human Rights in 2012, Venezuela argued that organs monitoring the respect for the Convention sought to damage the socialist country.84 Commenting on the denunciation, President Chávez said: ‘Venezuela is withdrawing from the Inter-American Court of Human Rights, out of dignity, and we accuse them before the world of being unfit to call themselves a human rights group.’85 Chávez’s counterpart in Bolivia, Morales, called the Inter-American

81 J Mchangama and G Verdirame, The Danger of Human Rights Proliferation: When Defending Liberty, Less Is More, Foreign Affairs, 24 July 2013, https://www.foreignaffairs.com/articles/ europe/2013-07-24/danger-human-rights-proliferation, accessed 7 January 2019. 82 Voice of Europe, Thousands of ‘Soros puppets’ want to make Hungary’s government pro-immigration, 23 March 2018, https://voiceofeurope.com/2018/03/thousands-of-soros-puppetswant-to-make-hungarys-government-pro-immigration/, accessed 7 January 2019. 83 G Gulyás, Government will protect Hungarians even if Venice Commission does not like it, Office of the Hungarian Prime Minister, 25 June 2018, www.kormany.hu/en/prime-minister-soffice/news/government-will-protect-hungarians-even-if-venice-commission-does-not-like-it, accessed 7 January 2019. 84 Ministry of Foreign Affairs (Venezuela), ‘Notificación de Denuncia’ and ‘Fundamentación que sustenta la denuncia de la República Bolivariana de Venezuela de la Convención Americana sobre Derechos Humanos presentada a la Secretaría General de la OEA’, 10 September 2012, http:// www.minci.gob.ve/wp-content/uploads/2013/09/Carta-Retiro-CIDH-Firmada-y-sello.pdf, accessed 7 January 2019. 85 Reuters, Venezuela withdrawing from regional human rights couurt, 25 July 2012, http://www. reuters.com/article/us-venezuela-oas-idUSBRE86O03M20120725, accessed 7 January 2019.

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Commission on Human Rights an ‘instrument of domination’.86 Non-governmental organizations promoting human rights are allegedly also part of the conspiracy. Former president Correa of Ecuador made it clear that, in fact, ‘they’re not non-governmental organizations but organizations from other governments, and powers that want to impose a political agenda with no political responsibility, with no democratic legitimacy’.87 It is important to stress once again that questioning the human rights concept as it has developed over the past decades, is legitimate. Not all those who worry about the proliferation of human rights, the prioritization of certain groups or agendas, or judicial activism qualify as populists. Yet, similarly as with the security argument, the legitimacy argument holds a special attraction for populists. It is so because, as we saw above, the argument reflects the populist division of the world between the good and legitimate on the one hand and the bad and illegitimate on the other (the us vs. them logic). This time, moreover, the division easily matches the one that populists work with, i.e. the division between the people and the elite (and the forces behind it). The elite is associated with those standing behind the evolution of human rights and those allegedly benefiting from that evolution. The people is identified with those who feel, or let themselves be persuaded, that they have no meaningful place in the human rights system. The legitimacy argument, moreover, relies on the ideas of betrayal and conspiracy that are crucial to the populist stance. It also calls for an urgent return to the ideal world of the past, in which the people, through its true representatives, would have a strong say in shaping the human rights system and where this system would be, again, geared towards protecting the majority. The legitimacy argument should not be discarded lightly. The fact that an important part of the population is ready to yield to the perception that human rights are irrelevant to their lives and can thus be given up without any big loss, has to be taken seriously and has to be addressed. After all, human rights can only ensure adequate protection if individuals know about them and believe in them. If either knowledge or belief or even both are absent, the whole project is in serious jeopardy. Moreover, the legitimacy argument is correct in pointing out that human rights are not static and that over the past decades, many important changes have taken place within the system. Most importantly, new human rights have been enshrined into human rights catalogues, mostly in response to the needs which have newly arisen or have been newly acknowledged (the right to the protection of personal data, the right to a favourable natural environment, etc.). The system has also turned its attention to certain vulnerable groups (women, disabled persons, LGBT, etc.) and it has been dotted with various monitoring and adjudicative bodies. That human rights have changed does not however mean that they have lost their relevance and legitimacy. Similarly to the security argument, the legitimacy argument is also deficient or incomplete on several accounts.

86 JM Vivanco and J Pappier, The Hypocrisy of Evo Morales, The New York Times, 20 November 2017, https://www.nytimes.com/2017/11/20/opinion/eva-morales-bolivia.html, accessed 7 January 2019. 87 Cit. in Rodríguez-Garavito and Gomez 2018, at 26.

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First, it is not true that human rights are now reserved to some individuals or categories of individuals only. No one is beyond their reach. The special protection granted to some groups is not intended to prioritize these groups over the rest of society but to help them get out of the disadvantaged position in which they find themselves due to some natural features (age, disability, etc.) or due to social stereotypes (women, people of colour, etc.). Moreover, if human rights are more frequently invoked in connection with people in certain specific situations (migrants, detainees, etc.), it does not necessarily mean that these people have more human rights than others. They are simply in a vulnerable position which places their human rights under an increased risk. On the contrary, other people may not be truly aware of their human rights not because they would not have any but because their rights are guaranteed to such an extent that they do not need to seriously worry about them. Human rights are not a ‘rare commodity’ that only some members of society may enjoy at any one time. They apply to everyone, members of different majorities and minorities alike. In fact, as we saw above, it is the populists, rather than the mainstream human rights defenders, who question the general application of human rights and would like to deprive some groups of their protection. And who, by doing so, put the concept in jeopardy for everyone, because, as rightly noted by Human Rights Watch, ‘[a]ll of our rights are at risk if we allow governments to select which people deserve respect for their rights’.88 Secondly, the recognition of new human rights does not constitute a threat to the already established human rights. These new rights have not been added to the catalogue to trivialize the concept. They have been added to make the catalogue more comprehensive and reflective both of the changing environment in which individuals live and of the different needs that these individuals, as holistic beings, have. Going back to a narrower catalogue would mean denying some of these needs or, more probably, denying the needs of some groups of people. After all, while all human rights are important for all human beings, their relative weight depends on the concrete conditions in which individuals live. Moreover, the expansion that human rights have undergone over the past decades, tends to be exaggerated. The very first instrument adopted at the international level, the 1948 Universal Declaration of Human Rights, already contained a rich catalogue of rights of all different types (including, for instance, the right to rest and leisure – Article 24). Finally, human rights law itself introduces a certain hierarchy among rights. This hierarchy, however, does not consider any rights as irrelevant. It simply declares that certain rights, a small minority indeed (the right to life, the prohibition of torture, the principle of non-discrimination etc.), constitutes the core of the system, because all the other rights are conditioned on their exercise. No other hierarchy, and especially no exclusion of certain rights from the catalogue, is needed. Thirdly, it is true that the past decades have witnessed the establishment of various human rights monitoring and adjudicative bodies, including several regional human rights courts. It is also true that these bodies have treated human

88

Human Rights Watch 2017, at 2.

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rights conventions as living instruments,89 engaging in the evolutive interpretation thereof ‘in the light of present-day conditions’.90 Such an interpretation may at instances seem quite different from that originally foreseen by the authors of the conventions.91 Yet, that does not make it illegitimate, let alone harmful to (the) people. The idea behind the evolutionary interpretation is that if human rights are to serve the interests of individuals, they have to reflect the conditions in which those individuals live nowadays, not the conditions that existed several decades ago. Not doing so, as well as not reflecting the plurality of interests and groups in the current society, would risk making these instruments outdated and irrelevant. Moreover, human rights bodies are not in charge of the human rights system. States, which created the system in the past, remain free to change its parameters or to withdraw from it. Finally, other actors which allegedly set the agenda from behind the scene, such as non-governmental organizations, have even more limited options to impose their will upon states. They also do not all share the same focus. It is hard to imagine that these diverse actors would plot to undermine the values they strive to promote and protect. The legitimacy argument draws attention to the changes in the human rights system. It however misinterprets the nature, extent and consequences of these changes. The special protection granted to vulnerable groups to help them overcome their disadvantaged position is presented as a replacement of, rather than complement to, the general human rights protection granted to everyone. The expansion of human rights, reflecting the diversity of needs that individuals have and the changing environment in which they live, is presented as an attempt to dilute human rights and deprive them of their efficiency rather than as an effort to make the protection truly comprehensive and holistic. Finally, the activities of international human rights bodies are presented as undermining human rights rather than rendering them stronger and more adapted to today’s world. When invoking the legitimacy argument, populists remain silent on the impact that the implementation of their own ideology would have for human rights. The legitimacy argument is therefore, again, both simplified and incomplete and potentially dangerous for enemies and supporters of populists alike.

7.3.3

Democracy Argument

The democracy argument partly overlaps with the legitimacy argument. It also invokes the changes that human rights have gone through over the past decades. Yet, whereas the legitimacy argument puts the emphasis on the change in the content of human rights (which rights and whose rights are protected), the

89 90 91

Tyrer v United Kingdom, ECtHR Chamber, No. 5856/72, 25 April 1978, para 31. ECtHR 1978, para 31. See also Dzehtsiarou 2011.

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democracy argument focuses on the change in the process through which human rights develop. The latter argument postulates that human rights should not be defined by the elite or by unelected courts. They should simply reflect the will of the majority. Thus, Trump indicated his willingness to sanction torture, ‘if that’s what the American people want’.92 Erdogan said he would be ready to restore the death penalty, if the relevant bill was approved by the Turkish Parliament.93 And the Hungarian government justified the measures interfering with the freedom of association and freedom of expression of non-governmental organizations providing help to migrants by the fact that the Hungarian people, in the elections of April 2018, ‘granted the government and Parliament a clear mandate to protect the country from immigration and to take action against organisations which assist illegal migration’.94 The reference to the will of the majority has been also repeatedly made by the Polish government to justify measures limiting the independence of judges or the freedom of the media.95 The democracy argument is a new variation on the older sovereignty argument, which used to be invoked very frequently in the past and which is still not completely absent from the international discourse. Under the sovereignty argument, human rights are not a matter of international concern but of national decision.96 It is up to each nation to decide how it will construe its human rights system and whether it will have one in the first place. Thus, for those adhering to the classical concept of sovereignty, ‘even scrutiny of international human rights without the permission of the sovereign could arguably constitute a violation of sovereignty by its “invasion” of the sovereign’s domaine réservé’.97 National sovereignty is still considered a cornerstone of international relations and international law. Yet, gradually, there has been a shift ‘from the protection of sovereigns to the protection of people’.98 A large part of the international community has accepted that ‘the will of the people shall be the basis of government’ (Article 21(3) of the Universal Declaration of Human Rights). This shift has also brought about the move from the sovereignty to the democracy argument. It is no longer the state as such but the people, i.e. the will of the majority, which should determine the extent and content of human rights applicable within a certain political community. The sovereignty

92

Cit. in Human Rights Watch 2017, at 5. D Butler and T Gumrukcu, Defiant Erdogan attacks EU, backs restoring death penalty, Reuters, 16 July 2017, https://www.reuters.com/article/us-turkey-security-anniversary/defiant-erdoganattacks-eu-backs-restoring-death-penalty-idUSKBN1A10E7, accessed 7 January 2019. 94 G Gulyás, Government will protect Hungarians even if Venice Commission does not like it, Office of the Hungarian Prime Minister, 25 June 2018, www.kormany.hu/en/prime-ministersoffice/news/government-will-protect-hungarians-even-if-venice-commission-does-not-like-it, accessed 7 January 2019. 95 Gall 2017. 96 See Delbruck 1982. 97 See Reisman 1990, at 869. 98 Reisman 1990, at 872. 93

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and democracy arguments thus share the anti-international orientation, they just differ in whether they indicate how decisions should be made at the domestic level. The democracy argument appeals to one of the important values, on which modern societies are based, alongside human rights and the rule of law, that of democracy. Since it is generally considered that the three values are interrelated and underpin each other, it might seem that the argument cannot constitute any threat to human rights. It is unfortunately not so. By linking human rights to the decision of each national polis, the argument denies the universal nature of human rights. It is also hostile to international monitoring of the state of human rights in various countries. This is well illustrated in the arguments that John Bolton, the national security advisor of President Trump, provided to justify the recent decision of the US to withdraw from the UN Human Rights Council. Bolton condones the decision as a rejection of the notion that multilateral organizations are in a position to judge representative governments like the US, or to try and impose their view of what an adequate human rights performance is. […] the effort [in the Council] is to whittle away at what the constitution gives us, and supersede the sovereignty we enjoy with a kind of supra-national framework.99

By the same token, the Hungarian government argued that when there is a choice between international standards and the will of the majority, the latter should prevail.100 The will of the majority serves not only to a priori reject any criticism from outside but also to justify encroachments upon the other two fundamental values, human rights and the rule of law. Similarly to the right to security under the security argument, the will of the majority is used as an absolute trump that has to prevail over any other considerations. If the people so wish, human rights can be denied. As Human Rights Watch indicated in its 2018 report, populists ‘seek to replace democratic rule—elected government limited by rights and the rule of law—with unfettered majoritarianism’.101 One year earlier, the organization noted: If the majority wants to limit the rights of refugees, migrants, or minorities, the populists suggest, it should be free to do so.”102 And: “Claiming to speak for “the people,” [populists] treat rights as an impediment to their conception of the majority will, a needless obstacle to defending the nation from perceived threats and evils. Instead of accepting rights as protecting everyone, they privilege the declared interests of the majority, encouraging people to adopt the dangerous belief that they will never themselves need to assert rights against an overreaching government claiming to act in their name.103

99 UN Watch, John Bolton: Why the U.S. left the UN Human Rights Council, 19–20 June 2018, https://www.unwatch.org/john-bolton-u-s-left-un-human-rights-council/, accessed 7 January 2019. 100 G Gulyás, Government will protect Hungarians even if Venice Commission does not like it, Office of the Hungarian Prime Minister, 25 June 2018, www.kormany.hu/en/prime-ministersoffice/news/government-will-protect-hungarians-even-if-venice-commission-does-not-like-it, accessed 7 January 2019. 101 Human Rights Watch 2018, at 2. 102 Human Rights Watch 2017, at 2. 103 Human Rights Watch 2017, at 1.

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In Poland, the will of the majority was invoked to justify the limitations of the independence of the judiciary or of the freedom of the media.104 In Venezuela, it served to explain measures directed against the media, human rights defenders and the political opposition.105 The democracy argument, while not raised only by populists, is again particularly popular with them. This is not surprising, provided that it fits well into the populist vision of the world. It operates with the concept of a unified people endowed with a collective will. The current elite does not respect this will and it therefore has to be replaced by a new elite which will listen to the people again. ‘Europeans have a clear will’, Orbán said with respect to the migration crisis, ‘[but] leaders in many places are not doing what the people want them to. […] I believe 2018 will be the year of the restoration of the will of the people in Europe’.106 The democracy argument particularly treasures the idea of an external enemy who wants to interfere in national affairs and replace the decision based on the will of the majority by that made by actors operating outside the national polis.107 In Venezuela, the government regularly accuses the opposition and non-governmental organizations of plotting against the state.108 The involvement of international bodies, including human rights courts, also gets criticized as part of the conspiracy. When denouncing the American Convention on Human Rights on behalf of Venezuela, Chávez accused the Inter-American Commission on Human Rights of ‘campaigning against his government and acting at the behest of the United States’.109 Populists would replace international with national actors. They also give special credit to the tools of direct democracy, such as referendums or national consultations, which allow the people to express its will more straightforwardly than classical elections. The democracy argument hits the point in that in any democratic society, the people are the sovereign and the democratic government has to be, in Abraham Lincoln’s famous words, a government ‘of the people, by the people, for the people’.110 This, however, is not the same as saying that the will of the majority is Human Rights House, Poland risks becoming “dictatorship of majority”, 13 October 2017, https://humanrightshouse.org/articles/poland-risks-becoming-dictatorship-of-majority/, accessed 7 January 2019. 105 See Rodríguez-Garavito and Gomez 2018, at 25. 106 E Schultheis, Viktor Orbán: Europe will restore ‘the will of the people’ on migration in 2018, Político, 1 May 2018, https://www.politico.eu/article/viktor-orban-refugees-europe-will-restorethe-will-of-the-people-on-migration-in-2018/, accessed 7 January 2019. 107 A Çubukçu (2016) It’s the will of the Turkish people, Erdogan says. But which people?, The Guardian, 26 July 2018, https://www.theguardian.com/commentisfree/2016/jul/26/turkish-peopleerdogan-democracy, accessed 7 January 2019. 108 Carey 2019. 109 International Justice Resource Center, Venezuela Denounces American Convention on Human Rights as IACHR Faces Reform, 19 September 2012, https://ijrcenter.org/2012/09/19/ venezuela-denounces-american-convention-on-human-rights-as-iachr-faces-reform/, accessed 7 January 2019. 110 A Lincoln, The Gettysburg Address, 19 November 1863. 104

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the only factor that counts in a democratic decision-making process, and that any decision by the majority is by definition a correct and legitimate one. There are first of all some challenges involved in ascertaining what the will of the majority truly is. A vote for a certain party in the elections should not be automatically interpreted as a vote in favour of all the measures that the party has in its programme. Referendums and national consultations may seem more reliable. Yet, much depends on the way in which questions put to the public are formulated. For instance, the 2017 national consultation in Hungary encompassed questions that hardly allowed for any reasonable answer.111 The context in which the elections, referendums or national consultations take place is also important. If there is no freedom and plurality of the media or if some political forces, for example those close to the government, are clearly advantaged in the campaigns, then the public may find it difficult to form its opinion in an independent and autonomous way. Moreover, the democracy argument offers a distorted and over-simplified picture of democracy. It reduces democracy to the rule of the majority which expresses its will through elections or other similar processes. Yet, the rule of the majority has its complement in the protection of minorities. The majority may not adopt decisions that would disproportionally harm minorities. Otherwise, the rule of the majority would be turned into the tyranny by the majority. Most modern legal orders, furthermore, are based on certain fundamental values that are considered as unalterable. Those include the separation of powers, the system of checks and balances, the independence of the judiciary and the set of non-derogable human rights. If in its extremist interpretation of majoritarian democracy, [populism] rejects all limitations on the expression of the general will, most notably the constitutional protection of minorities and the independence (from politics, and therefore from democratic control) of key state institutions (e.g. the judiciary, the central bank),112

it means that populists fail to understand how democracy works. The over-simplification is also visible in the reduction of democratic processes to elections, referendums and national consultations. Populists fail to recognize the role of civil society, including non-governmental organizations, in building up a democratic system. In fact, they regularly seek to destroy this society, because it offers parallel venues of association to the formal political structures and it risks interfering in the communication between the people and the leader(s).113 All these

“Question 3: By now it has become clear that, in addition to the smugglers, certain international organizations encourage the illegal immigrants to commit illegal acts. What do you think Hungary should do? (a) Activities assisting illegal immigration such as human trafficking and the popularization of illegal immigration must be punished. (b) Let us accept that there are international organizations which, without any consequences, urge the circumvention of Hungarian laws.” J Spike, “Let’s Stop Brussels!”: Here is the new National Consultation, The Budapest Beacon, 3 April 2017, https://budapestbeacon.com/lets-stop-brussels-new-national-consultation/, accessed 7 January 2019. 112 Mudde 2004, at 561. 113 Rodríguez-Garavito and Gomez 2018. 111

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points show that the democracy argument despite the title is in fact directed not only against human rights, but also against democracy in its full meaning.

7.4

Concluding Remarks

It has been noted that ‘[p]opulism often asks the right questions but provides the wrong answers’.114 This applies fully to the area of human rights. Populists usually do not reject human rights altogether. They nonetheless take a critical stance towards them. This criticism is not completely unfounded. The relationship between the right to security and other human rights, the proliferation of human rights, the focus in the public debates on the rights of certain groups, or the interplay between the domestic and the international level of protection of human rights are all topics which deserve serious discussion. Yet, populists push the criticism too far and use it to confirm their pre-conceived vision of the world. This vision, as we saw in the first section, relies on the dichotomy between the good and virtuous (collective) people and the bad and corrupted elite. The antagonism between these two groups is deep and unsurmountable. The elite plans to destroy the people by depriving it of its traditions, identity and values. The threat is urgent and imminent. It has to be countered now or never. And populists are there to help the people unmask and discredit the alienated old elite and take the power back into its own hands or rather into the hands of its new true elite. Human rights would impose important limits on the realisation of this vision. Populists therefore see them as an obstacle and call for their revision or, in the extreme case, rejection. Three main arguments are invoked by populists to justify their discontent with human rights. All the arguments have some merit but they either present the reality in a too simplified and incomplete way or go against some of the basic premises on which the system of human rights is based. The security argument rightly notes that the security threats have changed over the past decades. Yet, it too hastily jumps to the conclusion that human rights stand in the way of countering these threats. This conclusion does not take into account that the right to security is in itself a human right, that human rights law foresees emergency situations and provides tools (limitations, derogations, etc.) to deal with them and that restrictions imposed on human rights do not automatically lead to more security. The legitimacy argument draws attention to the changes that human rights have undergone over the past decades. It however misinterprets these changes. It claims that human rights now protect only minorities, while in reality they apply to everyone. It argues that the proliferation of human rights has weakened the system, while in reality it has made it stronger and more comprehensive. And it accuses international bodies and non-governmental organizations of undermining human rights, where in reality they seek to adapt the system to today’s world. The democracy argument rightly notes

114

Mudde and Kaltwasser 2017, at 118.

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that in modern societies, political decisions are made by the majority. It however forgets that the rule of the majority has to be counterbalanced by the respect for minorities and that it cannot result in the denial of human rights. Demonstrating the shortcomings of the three arguments is important. It helps us realise that populists do not propose a meaningful alternative to the currently prevailing concept of human rights. Making human rights subservient to other values (security, legitimacy, democracy) or, in fact, to the interpretation of these values by populists, would not make human rights better and more efficient. It would simply deprive them of their autonomous liberating potential. At the same time, it is important to go beyond the criticism of the populist stance and to consider what the responses to the challenges that populists call attention to could be. Alston in his article comes up with several ideas on strategies that ‘the human rights community need to start considering in response to the fundamentally new circumstances that we are now confronting’.115 These encompass inter alia the full integration of economic and social rights which have direct relevance for the everyday life of most people into the agenda of human rights actors or the need to ‘devote more time and effort to being persuasive and convincing, rather than simply annunciating our principles as though they were self-evidently correct and applicable’.116 While these ideas do not have to be accepted as they stand, they show that the challenges identified by populists may have other solutions than those proposed by them. Exploring these alternatives and explaining their advantages to ‘the people’, or simply to people, may in the end be the most efficient way to counter populism on this front.

References Albertazzi D, McDonnell D (2008) Introduction: The Sceptre and the Spectre. In: Albertazzi D, McDonnell D (eds) Twenty-First Century Populism. The Spectre of Western European Democracy. Palgrave Macmillan, London, 1–11 Alston P (2017) The Populist Challenge to Human Rights. Journal of Human Rights Practice 9:1–15 Canovan M (1984) People, Politicians, and Populism. Government and Opposition 19(3):312–327 Carey JM (2019) Who Believes in Conspiracy Theories in Venezuela? Latin American Research Review 54(2):444–457 Connolly WE (1993) The Terms of Political Discourse, 3rd edn. Princeton University Press, Princeton Crick B (2005) Populism, politics and democracy. Democratization 12(5):625–632 De la Torre C (2007) The Resurgence of Radical Populism in Latin America. Constellations 14(3):384–397 De la Torre C (2016) Left-wing Populism: Inclusion and Authoritarianism in Venezuela, Bolivia, and Ecuador. Brown Journal of World Affairs 23(1):61–76

115 116

Alston 2017, at 8. Alston 2017, at 11.

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Delbruck J (1982) International Protection of Human Rights and State Sovereignty. Indiana Law Journal 57(4):567–578 Dzehtsiarou K (2011) European Consensus and the Evolutive Interpretation of the European Convention on Human Rights. German Law Journal 12(10):1730–1745 Gall L (2017) Eroding Checks and Balances: Rule of Law and Human Rights under Attack in Poland. Human Rights Watch Gallie WB (1956) Essentially contested concepts. Proceedings of the Aristotelian Society 56(1):167–198 Galston WA (2018) Anti-Pluralism: The Populist Threat to Liberal Democracy. Yale University Press, New Haven & London Higgins R (1977) Derogations Under Human Rights Treaties. British Yearbook of International Law 48(1):281–319 Hopgood S (2016) The Endtimes of Human Rights. Cornell University Press, New York Houwen T (2013) Reclaiming power for the people. Populism in democracy. Ipskamp Drukkers, Enschede Human Rights Watch (2017) World Report 2017, 12 January 2017 Human Rights Watch (2018) World Report 2018, 18 January 2018 Inglehart RF, Norris P (2016) Trump, Brexit, and the Rise of Populism: Economic Have-Nots and Cultural Backlash. HKS Research Working Paper, https://www.hks.harvard.edu/publications/ trump-brexit-and-rise-populism-economic-have-nots-and-cultural-backlash. Accessed 2 January 2019 Ionescu G, Gellner E (eds) (1969) Populism: Its meanings and national characteristics. Weidenfeld and Nicolson, London Kaltwasser CR, Taggart P, Ochoa Espejo P, Ostiguy P (2017) Populism: An Overview of the Concept and the State of the Art. Oxford Handbooks Online. http://www.oxfordhandbooks. com/view/10.1093/oxfordhb/9780198803560.001.0001/oxfordhb-9780198803560-e-34. Accessed 4 June 2018 Laclau E (2005) On Populist Reason. Verso, London/New York Lazarus L (2012) The right to security – securing rights or securitising rights? In: Dickinson R, Katselli E, Murray C, Pedersen O (eds) Examining Critical Perspectives on Human Rights. Cambridge University Press, Cambridge, 87–106 Lazarus L (2015) The Right to Security. In: Cruft R, Liao M, Renzo M (eds) The Philosophical Foundations of Human Rights. Oxford University Press, Oxford, 423–441 Le Bon G (1896) The Crowd. A Study of the Popular Mind. Macmillan, New York Luban D (2006) Eight Fallacies About Liberty and Security. In: Wilson RA (ed) Human Rights in the ‘War on Terror’. Cambridge University Press, Cambridge, 242–257 McMath RC (1993) American Populism: A Social History 1877–1898. Hill and Wang, New York Moffitt B (2016) The Global Rise of Populism: Performance, Political Style, and Representation. Stanford University Press, Palo Alto Mouffe C (2018) For a Left Populism. Verso, London/New York Mudde C (2004) The Populist Zeitgeist. Government and Opposition 39(4):541–563 Mudde C (2016) On Extremism and Democracy in Europe. Routledge, London/New York Mudde C, Kaltwasser CR (2017) Populism: A Very Short Introduction. Oxford University Press, Oxford/New York Muižnieks N (2017) Populism? Human Rights Regression and the Role of the Ombudsman. IOI Europe Conference, 3–4 April 2017, Barcelona Müller JW (2017) What is Populism? University of Pennsylvania Press, Philadelphia O’Donnell G (1973) Modernization and bureaucratic authoritarianism. Studies in South American Politics. University of California Press, Berkeley Oraá J (1992) Human Rights in States of Emergency in International Law. Clarendon Press, Oxford Ortega y Gasset J (1932) The Revolt of the Masses. W. W. Norton and Company, New York

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Pappas TS (2016) Modern Populism: Research Advances, Conceptual and Methodological Pitfalls, and the Minimal Definition. Oxford Research Encyclopedia of Politics. http://oxfordre. com/politics/view/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-17. Accessed 3 June 2018 Reisman RW (1990) Sovereignty and Human Rights in Contemporary International Law. American Journal of International Law 84:866–876 Roberts K (1995) Neoliberalism and the transformation of populism in Latin America: The Peruvian case. World Politics 48:82–116 Rodríguez-Garavito C, Gomez K (2018) Responding to the Populist Challenge: A New Playbook for the Human Rights Field. In: Rodríguez-Garavito C, Gomez K (eds) Rising to the Populist Challenge. A New Playbook for Human Rights Actors. Dejusticia, Bogotá, 11–53 Roth K (2017) The Dangerous Rise of Populism. Global Attacks on Human Rights Values. In: Human Rights Watch (2017) 1–14 Savage R (2018) Populist Discourse in Venezuela and the United States: American Unexceptionalism and Political Identity Formation. Palgrave Pivot, Cham Swallow PS (2018) Explaining the Rise of Populism in Poland: The Post-Communist Transition as a Critical Juncture and Origin of Political Decay in Poland. Inquiries Journal 10(7) Taguieff PA (1997) Populism and Political Science: From Conceptual Illusions to Real Problems. Vingtième Siècle. Revue d’histoire 56:4–33 Turk HB (2018) ‘Populism as a medium of mass mobilization’: The case of Recep Tayyip Erdoğan. International Area Studies Review 21(2):150–168 Urbinati N (1998) Democracy and Populism. Constellations 5(1):110–124 Vossen K (2010) Populism in the Netherlands after Fortuyn: Rita Verdonk and Geert Wilders Compared. Perspectives on European Politics and Society 11(1):22–38 Waldron J (2011) Security as a Basic Right (After 9/11). In: Beitz CR, Goodin RE (eds) Global Basic Rights. Oxford University Press, Oxford, 207–226 Wellman C (1999) The Proliferation of Rights: Moral Progress or Empty Rhetoric? Westview Press, Boulder

Chapter 8

Reclaiming the Keys to the Kingdom (of the World): Evangelicals and Human Rights in Latin America Rene Urueña

Contents 8.1 8.2 8.3 8.4

Introduction........................................................................................................................ Protestantism in Latin America......................................................................................... ‘Evangelicals’ Enter the Picture........................................................................................ Evangelicals and the ‘Private’ Mindset: Chile (1970s) and Colombia (1990s) .............. 8.4.1 Chile, 1970s: Evangelicals and Faith as a Private Matter..................................... 8.4.2 Colombia, 1990s: Evangelical Rights and Neo-constitutionalism ........................ 8.5 The Public Mindset: LGBTI Rights and ‘Gender Ideology’ ........................................... 8.6 Conclusion: Reclaiming the Keys to the Kingdom (of the World) ................................. References ..................................................................................................................................

176 178 179 184 185 189 192 200 203

Abstract Christian Evangelicals are a growing political and social force in Latin America. Most recently, conservative Evangelical movements have intervened before human rights institutions to undermine basic LGBTI achievements, such as same-sex marriage, and other demands for equal rights. Some commentators thus speak of an imminent showdown between human rights protection and Christian Evangelism, emerging from a resurgence of religious populism also seen elsewhere in the world. This chapter problematizes this narrative, by exploring the origin of Evangelicalism in Latin America, and its approach to key human rights issue of their time in three different moments and places: Chile in the 1970s, Colombia in the 1990s, and Costa Rica in the 2000s. Through this exploration, the chapter interrogates the traditional framework of the secular state in Latin America, and warns against the current ambition of a top-down “secular fundamentalism” in the Rene Urueña is Associate Professor and Director of Research, Universidad de Los Andes (Colombia). R. Urueña (&) Universidad de Los Andes, Bogotá, Colombia e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_8

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region, which may disenfranchise Evangelicals, and create deep resentment against the human rights movement. Costly as it may be, human rights institutions need to be bold in creating argumentative spaces that allow for the Evangelical experience to exist in the public sphere in Latin America, in a context of respect for human rights in general, and LGBTI rights in particular.




Keywords Latin America Inter-American Court of Human Rights LGBTI rights Evangelicals Populism Human rights




8.1








Religion


Introduction

Christian Evangelicals are a growing political and social force in Latin America. Most recently, conservative Evangelical movements have mobilized against basic LGBTI achievements, such as same-sex marriage, and other demands for equal rights. The scene is thus being set for an apparent showdown between human rights and Christian Evangelism. This chapter unpacks this gathering storm, by exploring the origins and evolution of Evangelicals in Latin America, and their approach to key human rights issues of their time, in three different moments and places: Chile in the 1970s, Colombia in the 1990s, and Costa Rica in the 2000s.1 With the LGBTI controversy, this chapter argues, Evangelicals have shifted from a ‘private’ to a ‘public’ mindset. In the first, Evangelicals implicitly accepted that their religious beliefs belonged to the private realm, and had to be protected via proximity to power (Chile), or the Constitution (Colombia). In contrast, the LGBTI debate has revealed a radically different mindset. In this latter context, Evangelical beliefs are supposed to be considered as part of the public sphere – not only because the law should protect a subjective right of holding and expressing certain private beliefs, but because such beliefs are a public idea, in and of itself, that belongs in the public sphere. Evangelicals have thus stopped deferring to the state in the definition of the secular/religious line, and have started proposing their own interpretation. What is sought now is not only protection, but also influence on the outlook of the wider society beyond the walls of the Temple. And this ambition presents an important challenge to the traditional division of labor in the secular state: it is not up to the 1

The case studies were selected to capture the role played by Evangelical Christians in moments of deep social upheaval and of fundamental redefinition of public powers: the military coup in Chile, the first Constitutional Assembly in over a century in Colombia, and the open clash of Costa Rican institutions with the Inter-American Court of Human Rights, which the former hosts in its very capital. In that sense, the cases seek to illustrate Evangelical strategies when facing an existential threat, and not in ‘normal’ circumstances, where the political stakes might be marginal. Moreover, they seek to cover the three central moments of recent Latin American history: dictatorships (1970–80s), transitions (1990s), and democracy (2000 onwards). Other examples of these dynamics, not included in this chapter, are the Argentinean case in the 1980s, Peru in the 1990s, and the Brazilian case since 2000.

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state to decide what is religious, and what not, but by the believer herself to choose what of her beliefs are also political utterances that belong to the public sphere. This transformation may reinforce dynamics of populism in Latin America. The disciplined political mobilization of the conservative Evangelical movements can be easily captured by, or put at the service of, a charismatic leader of inspirational rhetoric – a standard characteristic of Latin American populisms.2 The example of Jair Bolsonaro, who has come to symbolize the return of populism in Latin America and was elected President of Brazil in 2018 with the support of Conservative Evangelicals,3 bears witness to that point. Moreover, the deeply polarizing rhetoric of some Evangelical groups fits well with the Manichean discourse of ‘us v. them’ that characterizes many contemporary populisms in the region,4 which find in international institutions in general, and international human rights in particular, a suitable external enemy to resist. There is, however, no one-way causal relation between the Evangelical Conservative movement, populism, and the rejection of international law, in general, and of international human rights in particular. As this chapter illustrates, the relation between Conservative Christian Evangelicals and international law is somehow paradoxical. While there is a populist style in Evangelical politics in the region, which is characterized by the resistance to an allegedly elite imposition of values by international institutions, Evangelicals have also skillfully used international law to advance a transnational conservative agenda (particularly against LGBTI and equal-gender rights). Thus, they have managed to both deploy international law effectively, and at the same time use it as the target of a popular backlash against the current Inter-American order and regional standards of liberal democracy. Evangelicals in Latin America are reasserting control over the entrance to the public realm, thus placing enormous pressure on the social legitimacy of regional human rights institutions in Latin America. They are, as the title of this piece suggests, reclaiming the keys to the Kingdom of the World. But denial is a losing strategy. Politically costly as it might be, regional human rights institutions do need to act, with caution – thus, the last part of this chapter warns of risks of ‘secular fundamentalism’, and its possible negative implications for the Evangelical experience to exist in the public sphere in Latin America, in the context of respect for human rights in general, and LGBTI rights in particular.

2

Conniff 2012. J Lafuente and T Bedinelli, Los evangélicos se convierten a Bolsonaro, El País, 8 October 2018, https://elpais.com/internacional/2018/10/07/america/1538930780_735803.html, accessed 18 March 2019. 4 Mudde and Rovira Kaltwasser 2012. 3

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Protestantism in Latin America

Protestantism and ‘Latin America’ are roughly the same age.5 The Conquista took place at more or less the same time as the beginning of the Lutheran Reformations, and some of those fleeing religious turmoil in Europe thought of the region as a possible refuge.6 Later, as the Holy Inquisition raged on in the Colonies, Protestants were a common target of persecution – particularly the English, who were not only Protestant, but also competed for influence with the Spanish Crown.7 Protestants in the Spanish and Portuguese colonies had little impact, and Catholic dominance of the region was complete. With the drive to independence from the Spanish Crown in the 19th century, ‘Protestantism’ became indirectly connected to the liberal ideas that inspired many in the independence movement. Insisting in such a link, though, was more to the advantage of the powerful Crown and the Church than an actual depiction of reality – several criollo leaders were in fact not Protestants, but committed Freemasons.8 In these early years of the Latin American republics, Protestantism had, essentially, three origins. First was immigration, particularly in Argentina and Brazil, where white immigration was tolerated (and sometimes actively encouraged) by liberal rulers, as part of an effort to ‘improve’ local culture. The second source of Protestantism were Biblical Societies, some of which had an important impact in shaping school systems in the region.9 Finally, the third source of Protestantism in the region was local. Liberal radical minorities in Mexico, Cuba and Brazil emerged as non-Roman Catholic rebels, long before the missionaries arrived.10 In most Latin American countries, the liberal-conservative constitutional battleground gave way to a sort of compromise, where most constitutional texts incorporated somehow incoherent elements of both projects.11 This included compromises regarding the role of the Catholic Church in society, and freedom of religion. In this context, Protestants lived in the political margins and, when politically active, shared a common space with the remnants of radical - liberal politics. Following Leo XIII’s Rerum Novarum Encyclical of 1891, the Church The label ‘Latin America’ was promoted by the French in the mid-1800s, with the purpose of resisting the United States’ ‘Saxon America’ (see Phelan 1968, but also see Quijada 1998). Despite these difficulties, as this chapter will show, it is possible to describe shared trends and challenges in the region, particularly with regards to public law after the 1990s. The notion of ‘Protestantism’, in turn, will be unpacked later in this same text. 6 See, generally, Mayer 2008. 7 See Lewin 1962, at 136–138. 8 Recent work on Freemasonry during the Independence in the region shows the key role played by a religious, non-Catholic, mindset in the struggle. See, for example, Ferrer Benimeli 2015. Also, the 2010 special issue of the Revista de Estudios Históricos de la Masonería Latinoamericana y Caribeña, Martínez Moreno 2011. 9 See Rosa Del Carmen 1990. 10 On Cuban religious rebels, see Ramos 1986. On the Mexican side, see Bastian 1989. 11 Gargarella 2008. 5

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strived to fill the spaces left open by the public sector in Latin America, for example, through the expansion of the Catholic press, schooling, and the celebration of concordats with several states in the region.12 As a result, Protestant politics in Latin America in the late 19th and early 20th centuries were overwhelmingly marginal, and radicalized.13 Protestant communities in the region did not gain much political influence in the region until the late 20th century. On the one hand, some of the revolutionary movements in the region were indeed successful, but failed to bring protestant interests to the mainstream. In other countries, such as Colombia, the rise of strong Catholic-conservative movements in the 1940s and 1950s meant that non-Catholic groups (including Protestants) were persecuted, and sometimes killed, as allies of liberals. In this regard, it is revealing to consider the fierce rhetoric of the Colombian Conservative leader Laureano Gómez, for whom Protestants, Jews, Freemasons, and liberals were all part of the same conspiracy to undermine the Fatherland.14 Against them, the ‘spiritual axis of the Hispanic world’, with the Catholic Church and a recently successful Francisco Franco at the helm, had to be invoked.15 The line was thus clearly delineated: on one side, the Protestant (and Jewish), Pan-American, Anglo-Saxon world of the 1948 Organization of American States, and on the other, the Catholic, Nationalist, Hispanicist world of Colombian Nationalists.16

8.3

‘Evangelicals’ Enter the Picture

The Protestant – United States connection would grow in importance since the late 1960s, when a rapid expansion of evangelical movements around the globe was observed.17 From the 60s and 70s, the rise of evangelical movements in Latin America ‘caused the five centuries of Roman Catholic dominance in Latin America to begin to unravel.’18 These new movements were able to make inroads into the global south and established ‘new centers of global evangelism’,19 which initially began their work in rural, poor, and underdeveloped areas. Moreover, they made

12 In the second half of the 19th century, seven Concordats were signed with Latin American countries: Bolivia (1851), Costa Rica (1852), Guatemala (1852), Honduras (1861), Ecuador (1862), El Salvador (1862), and Colombia (1887). 13 See Bastian 1989 and Bastian 2006. 14 See Iriarte 1995. 15 Cordi Galat and Álvarez 1985. 16 See Gaitán-Bohórquez and Malagón-Pinzón 2009. 17 Robbins 2004. 18 Nolivos 2012, at 92. 19 Offutt 2015.

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relationships with local activists and transnational movements, creating lasting network between ‘local territories and global networks.’20 These ‘Evangelicals’ were a different kind of movement from that of the more traditional Protestants that came to the region with European immigrants and Bible Societies in the 19th century. It is possible to distinguish between three different strands of Protestantism in Latin America.21 The first is ‘historical’ Protestantism, based on missions coming mainly from traditional denominations in US and Europe; for example, the Lutheran Church in Guatemala, or the Baptist Church in Colombia. The second group are the ‘established’ Evangelical and Pentecostal Churches, which emerge from the missional groups of those same denominations, mainly from the US. Examples of such ‘established’ institutions include the Church of the Nazarene, a Wesleyan denomination that has existed since 1908 in the US, and has thousands of affiliated churches in Latin America. Finally, the third group are the more independent, homegrown organizations, which have often emerged from the splintering of a more established Church, or by the entrepreneurial drive of individual spiritual leaders. This third group comprises hundreds of thousands of organizations, some small operations, others quite large – such as the Misión Carismática Internacional (MCI), founded in Colombia in 1983, and which reports currently a 200.000 membership.22 The theological differences among these denominations are considerable, and should not be downplayed.23 For the purposes of this chapter, though, suffice it to say that the label ‘Evangelical’ in Latin America is an umbrella term, that often includes most of the ‘transplanted’ and independent churches in the region, while excluding ‘historical’ Protestantism. In terms of beliefs, and important differences notwithstanding, there is common core of ‘axiological convictions’: personal conversion, Biblical authority, and Evangelical witness.24 This ‘new Evangelism’ that moved to Latin America can be traced back in part to the Charismatic revival in the US, in the 1950s, characterized by membership of high social capital, and a personal experience of religious transformation.25 The Charismatic revival had at least three important implications for ‘new Evangelism’ in Latin America. First, it changed ‘historical’, and above all ‘established’, churches

20

Dejean 2015. This classification is loosely based on Schäfer 1992. However, Schäfer distinguishes between four different kinds of Protestantism in the region: historic, established Evangelical, established Pentecostal, and Neo-Pentecostal. Instead, for the purposes of this chapter, I propose to group both established movements into a single category, and create a third category for independent churches, as established churches can conceivably be Pentecostal or neo-Pentecostal. 22 Source: http://mci12.com/nuestra-iglesia/. Accessed 19 March 2019. 23 For an elaboration of the theological differences, see Schäfer 1992. Also: Schäfer 1997. 24 See Johnston 2000. 25 ‘Charismatic’, in this context, refers to spiritual gifts (‘charism’) bestowed upon believers by the Holy Ghost, such as words of wisdom, the gifts of healing, prophecy, the discernment of spirits, speaking in tongues, or the interpretation of tongues. For example, see Romans 11:29, 12:6, 1; or Corinthians 12:4, 9, 12:28, 30–31. 21

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from within, first in the US, and by implication in Latin America. The Charismatic revival showed that a personal religious experience would expand the appeal of the Gospel, and many ‘established’ (and even Catholic) organizations adopted their own version of the Charismatic transformation, while retaining, to be sure, deep theological differences. This new style of deeply personal and transformative religious experience would prove enormously successful in Latin America, as we will see below. Second, the Charismatic revival also had political undertones, particularly in the context of the Cold War. The revival implied a personal religious experience, but not one of a monastic nature, apart from culture or politics. On the contrary, the Gospel was to be lived in the world.26 Thus, in the 1970s and 1980s, Charismatic leaders tended to have conservative politics, and viewed their crusade in part against the background of the 60s cultural revolution, with its perceived ‘decay of the west,’ and the need to strive for a fourth great awakening.27 Fiercely anti-communists, some Charismatic leaders were Cold Warriors in body and soul – particularly with regards to Latin America. Perhaps no other leader was more prominent in this regard than Pat Robertson, who once referred to the Nicaraguan Contras as ‘God’s Army’, and coordinated ‘Operation Blessing’, a massive seven-million-dollar mission of nonmilitary aid to the group in Nicaragua.28 Robertson was also a close friend of Guatemalan dictator Ríos Montt, himself once an Evangelist preacher in the California-based Church of the Word (now Verbo Ministries).29 The last important implication of the Charismatic revival for the ‘new Evangelism’ in Latin America was connected to its organizational strategy. As we saw, the revival did not necessarily imply the creation of new churches, but could rather be adopted, in whole or in part, by existing organizations. This was made easier by the use of small faith groups where the Scripture was discussed among a particular cohort of the community (say, youngsters, or women). These groups of about a dozen members would meet at a convener’s home, who would lead a horizontal conversation of the texts. In Latin America, this highly decentralized structure created spaces for social bonding that closely resembled traditional family ties, and also created spaces for emerging leadership that was simply absent from other forms of religious experience. In this context, the expansion of Evangelicals in Latin America in the late 20th century was stunning. In 1970, an average 4% of the population was Protestant, and 92% were Catholics. In 2014, there were 19% Protestants and 69% Catholics.30 By

26

Schäfer 1992, at 82. Fogel 2000. 28 Source: Marley 2007, at 75–77. 29 See S Kinzer, Efraín Ríos Montt, Guatemalan Dictator Convicted of Genocide, Dies at 91, The New York Times, 1 April 2018, https://www.nytimes.com/2018/04/01/obituaries/efrain-riosmontt-guatemala-dead.html, accessed 18 March 2019. 30 Source: Pew Research Center 2014. 27

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2017, Protestants in Latin America were no longer a marginal political force. In Guatemala, Honduras and Nicaragua, around 40% of the population was Protestant,31 and even the countries with less Protestant presence (Ecuador, Mexico and Paraguay) still featured around 10% following that faith. Moreover, the largest country in the region, Brazil, had roughly 25% of Protestants, as did Costa Rica and the Dominican Republic, while Argentina, Bolivia, Chile, Panamá, Peru, Uruguay, and Venezuela all featured between 15 and 20%.32 Perhaps as importantly, most Latin Americans who have embraced Protestantism in the recent decades have done so out of deeply personal reasons, either because they sought a more personal connection with God (81%), or because they enjoyed the style of worship in the new faith (69%).33 As a result, faith is highly important in the life of Protestants: the gap in religious commitment between Catholics and Protestants in the region is in average 25%, with countries like Venezuela or Brazil featuring a gap of 39% and 37%, respectively.34 Limited as it is, this brief review of the path of Protestantism in Latin America allows some conclusions to be drawn.35 Ultimately, Evangelism in Latin America can be usefully understood as a network, as an experience, and as a community. Network: While it is clear that US-based institutions have played a key role in the expansion of Evangelicals in Latin America (and recent literature has traced the impact of growing evangelical movements in the region),36 such an expansion is not a top-down process, led centrally from the US. This is a truly organic process of social transformation which had no ‘national reformation’ from above.37 Despite its entanglements with US institutions, Evangelism in Latin America expanded mainly as ‘the redeployment of popular religion of rural forms of Catholicism without priests.’38 In some places, Evangelical movements grew in the spaces left by Latin American Liberation Theology after the movement was ‘exorcised’ by John Paul II in the 80s.39 In other places, like Brazil, Evangelical movements merged previous (often Catholic) beliefs with new Protestant practices,40 and even local

31

Source: Esquivel 2017. Source: Esquivel 2017. 33 Source: Pew Research Center 2014. 34 Source: Own calculations based on Pew Research Center 2014, at 17. ‘Religious commitment’ means, for Pew, those who stated praying daily, attending a weekly religious cult, and consider religion as very important in their life. 35 For a wider historical discussion until the 1990s, see Bastian 1993. For a more recent discussion, Pérez Guadalupe 2017, at 27–113. 36 See generally Aubrée 2013; Medina and Alfaro 2015; Bastian 2013; Parker 2016; Esquivel 2017. 37 Freston 2007. 38 Bastian 1993. 39 Kirk 1985; Davis 1991. 40 Martin 1994. 32

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afro-indigenous rituals.41 In other places, it simply attracted indifferent urban Catholics or agnostics who became interested in the Evangelical religious experience. In all these instances, the expansion of Evangelism in Latin America is a veritable social movement from below, mostly independent from the state or public institutions, that features some important institutional players (such as megachurches), but is overall financially and organizationally decentralized. The rise of Evangelism in Latin America is, in that sense, a networked event, with multiple centers, very little hierarchy, and much in common with other contemporary social networks.42 Experience: Secondly, expansion of Evangelism in Latin America is built upon a deeply felt personal experience of faith. While important differences exist between different theological denominations (and different persona experiences), it seems clear that the process of expansion is premised upon a transformation of individual beliefs, which potentially changes social and cultural practices. In that sense, Evangelism is not a choice with marginal impacts on the believer’s life. Quite on the contrary, as the figures on religious commitment suggest, the adoption of Evangelism is correlated with the stated intention of having a deep commitment to a faith-based life style, which encompasses different aspects of the believers’ life. Regardless of whether this change in behavior does indeed take place, it is reasonable to expect that Evangelism is part of the core of the identity of the believer, built as it is upon a personal, non-coerced, religious experience. Community: Third, Evangelicalism provides believers with a community, and possibly a sense of belonging, which is common to other deeply felt experiences in organized religion. Be it through small faith-based groups, or through massive meetings of thousands, churches and other Evangelical groups provide a space for like-minded individuals to share the implications of their faith-based experience, and to socialize and strategize with other members of the networks.43 Moreover, these communities seem to have also created new spaces for small-scale leadership of some traditionally disadvantaged segments of the population in Latin America. Thus, for example, ethnographic work in southern Mexico has shown that Evangelical communities opened spaces for indigenous women to gain a new level of independence, proselytize outside the home, and to develop a ‘sisterhood’ that provides some shelter against domestic violence.44 These characteristics have shaped Evangelicals’ paradoxical connection with populism. They create a deeply felt sense of belonging, which facilitates an ‘us vs. them’ dynamic. According to dynamic, Evangelicals often feel as a belonging to tightly knit community that is outside the mainstream of politics – a community that is excluded in perception (but not necessarily, as we shall see in the next section, in

41

Perhaps the most salient example of this fact are the diffuse barriers that separate believers of Candomblé, Protestantism, and Catholicism in Brazil. See Selka 2010 and Souza 2017. 42 See Ferguson 2018. 43 See Pérez Guadalupe 2017. 44 See Hernández and Burguete 2005.

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practice) from the political and economic elites. The process of ‘othering’ that is often observed in right-wing populism45 is, therefore, facilitated by the combination of community and marginality characteristic of Evangelical movements, particularly after their expansion in the 1990s. It is, thus, possible to identify a growing ‘populist style’ in Evangelical politics in Latin America today, that shares the forms (and even the esthetics) of populist movements, characterized by the ambition of social and political transformation, economic benefits for the most dispossessed, and a strong base of social support for favored policies.46 However, it is impossible to fully equate Evangelicals with populism in the region, as strong-man leadership seems to be missing. While pastors are, to be sure, influential and are often followed with passion, it is not clear that such fervor would exist outside the personal experience of believers, in the context of their decentralized community of faith. Thus, while its populist style is clear, the lack of a personalist leader that exercises power through a top-down structure, seems to set apart Evangelicals movement from other more traditional forms of populism in the region.47 The following sections explore this multidimensional relationship of the growing populist style of Evangelical movements with mainstream politics in three countries in Latin America. It suggests that the populist style was not widespread before the Evangelical expansion since the mid-1990s, and Evangelicals were thus characterized by a ‘private mindset’. I explore this moment in time though the Chilean and Colombian cases. Today, though, the populist style seems to be on the rise. Evangelicals in Latin America are turning to a ‘public mindset’, and reasserting control over the entrance to the public realm – a situation that is explored in the fourth section of this chapter, through the case of Costa Rica.

8.4

Evangelicals and the ‘Private’ Mindset: Chile (1970s) and Colombia (1990s)

The expansion of Evangelism in Latin America occurred in parallel to the rise of the human rights movement in the region. The two process, though, were mostly separate, as Evangelicals only began to deploy the language of human rights relatively late, particularly after the 1990s. In general, Evangelism in Latin America during this time was seen as a private matter: even when Evangelicals ventured into the public realm of politics, they did so in order to preserve their space in the new configuration of power. In a way, Evangelicals seemed to accept that it was indeed crucial to ‘distinguish’ between politics and religion, and it was up to the state to

45

See in the context of the UK, Field 2018. For a map of the evolving conceptual definition of populism that includes, at the very least, these dimensions, see Bueno Romero 2013. 47 For a concept of populism in Latin America that centers, at least in part, on the personalist leader, see Rovira Kaltwasser 2014. 46

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draw the line – be it informally, via influence (as in Chile), or in the text of the Constitutions (as in Colombia). In this context, the ambition of social transformation, the search for economic benefits for the most dispossessed, and a strong base of social support, all of which characterize the ‘populist style’ of Evangelism since the late 1900s, are mostly absent. What was mainly sought, was the protection of that which ended on the ‘religious’ side of the fence.

8.4.1

Chile, 1970s: Evangelicals and Faith as a Private Matter

As is well known, many states in Latin America lived under a period of dictatorships in the 1970s and 1980s. Evangelicals acted to accommodate, and sometimes resist, the new right-wing military governments – particularly during the massive violations of human rights that ensued. Overall, the reaction of Evangelicals to dictatorships in the region was a function of Cold War dynamics, and of the relative proximity of the Catholic Church to the military regimes. The deeper the Evangelical communities were in anti-communist rhetoric, the more supportive they tended to be of dictators. Similarly, when the Catholic Church was critical of the military regimes, the more supportive the Evangelicals would grow. These trends, though, admit exceptions, as particular Evangelical organizations reacted in different ways, creating conflict among Evangelicals in a given country. In this context, the populist style in Evangelical politics that would appear in the 1990s was mostly absent. As the majority of the population remained staunchly Catholic, Evangelical political strategy tended to rely not on their appeal to popular social bases, but rather on gaining access to elite instances of decision-making. Chile provides a good example. Before Pinochet’s coup of September 1973, Evangelicals in Chile were not visibly active in politics.48 In fact, one of the seminal works on Protestantism in Latin America of the 1960s concludes that, in Chile, Pentecostalism teaches its initiates withdrawal and passivity in political matters, limited only by the commandment to be submissive to author (…) society. The components create a force for order rather than an element of progress; a defender of the status quo rather than a promoter of change.49

Perhaps in part due to this inertia towards defending the status quo, the reaction to the coup by one segment of Chilean Evangelicals was to support Pinochet, and his conservative agenda. Thus, in December 1974, the Federación de Iglesias

48 49

See Fediakova 2002. Lalive d’Epinay 1968. English translation: Lalive d’Epinay 1969, at 145.

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Evangélicas Chilenas (DIECH) made a public declaration in the Diego Portales building, which had become the symbol of the Junta government after the coup. For the Pastors, Chile fell boldly into the grip of international Marxism, whose national leaders deceived many Chileans with false promises, despite them not representing the majority (…) The pronouncement of the Armed Forces, in the historical process of our country, was the answer to the prayer of all the believers who see in Marxism the satanic force of darkness in its maximum expression (…) The Sacred Scriptures, the only rule of faith and practice, tell us: “Every person submit himself to the higher authorities, because there is no authority but from God, and those that are, by God have been established” (Romans 13: 1). We, Evangelicals, have submitted always to the authorities that have ruled our Homeland, and we recognize then as the highest authority in this country the Government of the Military Junta, which, by freeing us from Marxism, came as answer to our prayers.50

This branch of Chilean Evangelicals, later organized as the Pastors’ Council (Consejo de Pastores), would go on to have deep links with the regime. The annual Te Deum ceremony, to which important governmental officials were invited, became a showcase of the Council’s influence. As a result, the segment of Evangelicals that were represented by the Council were able to leverage their support to cement their position in Chile (particularly vis-à-vis a Catholic Church that grew increasingly critical of the regime), and were able to have direct access to Chile’s poorest populations, and evangelize without the hindrances of competing socialist narratives of exploitation.51 In contrast, another group of Chilean Evangelicals opposed the Pastors Council’s attitude. In particular, the Lutheran Church, led by Helmut Frenz, and the Association of Evangelical Churches in Chile (Asociación de Iglesias Evangélicas de Chile) joined other denominations to form, first, the Comisión Nacional de Ayuda a los Refugiados (which helped thousands of refugees to flee Chile), and then Committee of Cooperation for Peace (Comité de Cooperación para la Paz de Chile, COPACHI), which sought to help political prisoners, give aid to the families, and provide legal representation. Later on, the Committee was closed, but the Catholic Church followed through with many of its activities by creating the Vicariate of Solidarity (Vicaría de la Solidaridad), which existed between 1976–92 and created deep tensions between this part of the Catholic Church and the regime.52 As a result of these tensions, the legitimizing potential of the supporting side of the Evangelicals (the Pastors’ Council) was quickly realized and mobilized by the military regime.

50

Puente 1974, at 30. Pedro Puentes Oliva was Pastor of the Iglesia Presbiteriana Independiente, and a key Protestant leader. Declaration reproduced in Espinoza Orihuela 2012. Two days after this statement, the largest Protestant temple at the time would be opened, the Methodist Pentecostal Church of Jotabeche, in Santiago. 51 See Mansilla et al. 2015. See also Löwy 1996, at 111–113. 52 On the Vicariate, see Lowden 1995.

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While the opposition to the government of people like Helmut Frenz’s is beyond question,53 scholarship on Chilean Evangelism points out that resistance to the Pastors’ Council support of Pinochet was not only inspired by a rejection of the regime itself, but also by the rejection of the Council as representative of the whole Evangelical community and, in particular, of the idea of Evangelicals taking part in politics. As José Casanova explains in his seminal book Public Religions in the Modern World, the minority Evangelicals were implicitly uncomfortable with the Pastors’ Council public stance in favor of the government – and its abandonment of the private sphere of religious practice.54 But, in a way, they should not have worried. While the minority groups were keen in having deeper access to the Pinochet regime, their move was not one of becoming a public force for policy. The populist style of politics was far from the minds of Chilean Evangelicals at this point in time. On the contrary, the strategy was not populism, but access to the elite. This was, rather, a survival strategy—a way to keep in the good graces of those in power. In the context of Cold War politics, as US Evangelicals were turning right, the politics of the new regime were not fundamentally in opposition to the politics of one part of the Evangelicals (it was, however, at fundamental stakes with another faction, was we have seen). In this context, those who supported the regime were not in contradiction with those who wanted to keep Evangelicalism as a private matter. In fact, they were trying to keep religion private by going public. By leveraging their support for the government to gain access, the Pastors’ Council did not become a King-maker in political chess of the dictatorship. What it succeeded in doing, though, was obtaining a space of tolerance (of private worship) from the regime. It was, in a sense, a capitulation in the struggle for the definition of the religious and the secular. In a context where the Catholic Church was not providing the regime with the all the spiritual legitimacy it demanded, the Pastors’ Council accepted the regime’s definition of religious/secular fields, and allowed themselves to be placed on the ‘religious’ side of the fence, as long as the government respected their private space for being religious.55

53

The German-born Frenz’s residence permit was, in fact, revoked by the military government in 1975, upon a trip to Geneva, and was thus forbidden to return to Chile. Thereafter, he became the Executive Secretary of the German office of Amnesty International. See Frenz 2006. In English, see Frenz 2008. 54 See Casanova 1994, at 218–224. 55 A similar division within the Evangelical churches could be also observed in Argentina during the dictatorship, where a group of churches silently supported the military regime (particularly Evangelical churches, and some Pentecostals), while other churches joined the progressive Catholics in the establishment of the Asamblea Permanente por los Derechos Humanos (APDH) in 1975, and the Movimiento Ecuménico por los Derechos Humanos (MEDH), in 1976. According to Susana Bianchi, in Argentina the dividing line existed even before the coup, as some of the historical churches (like the Methodists and the Lutherans) had shown a prior affinity with a ‘social Gospel’ not unlike Catholic Liberation Theology, while the other group was more influenced by US conservative Evangelicals. In sharp contrast with Chile, though, these divisions within Evangelicals did not play out significantly in the public arena, as the Catholic Church’s support for

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This, it becomes clear why Pinochet’s view of the (supporting) Evangelicals was characterized by deference to diversity, and freedom of religion: [t]his evangelizing mission within the town deserves all our (the Government’s) recognition and demonstrates convincingly the full freedom of worship that is practiced today in our country. This freedom of conscience that we sponsor is the one that has opened the doors of the Government, which I preside over, to all the Churches. Each one of them and all of them as a whole deserve us equal respect, because they have a mission of faith and charity indispensable for the human being. Chile respects and will always respect the beliefs of each and every one of its children.56

This early division of the religious/secular field would be later contested, as other Evangelical Churches would enter the ‘public’ sphere, in the sense of trying to influence government and policy from outside government. A good example was the Christian Fellowship of Churches (Confraternidad Cristiana de Iglesias, (CCI)), founded in 1981, which in the 1980s became increasingly active in speaking against the regime.57 The CCI spoke openly against the effects of the regime’s neoliberal economic order, as most of its believers lived in areas of extreme poverty, particularly in La Victoria and José María Caro, some of the poor neighborhood in Santiago. In that sense, the CCI seemed to foreshadow a more populist style in Evangelical politics. Unlike the Pastors’ Council, the CCI moved beyond the private realm of worship (and of securing such space trough proximity with the regime) and mobilized to achieve a change that benefited its believers, but went beyond their immediate ability to worship freely, and affected conditions of society more structurally. Similarly, the CCI was also critical of the military regime itself, and its undermining of democratic institutions. Here, again, the CCI moved beyond guaranteeing immediate political spaces for worship, but rather innovated in mobilizing the language of human rights (which was despised by the regime, and seen with suspicion by other Evangelicals),58 and formulated a wider critique of the Armed Forces and of violence, in support of democracy, the right to protest, and linking the ‘right of citizenship’ to Christian values. ‘From our Christian perspective’, wrote the CCI, ‘recognizing the right to citizenship is the least that can be done to respect the dignity of every human being created in the image and likeness of God’.59

the Argentinean dictatorship was steadfast, thus creating less of a need for the legitimizing effect of Evangelicals (see Bianchi 2004, pp. 251–65). Thus, the state had the keys for allowing Evangelical participation in the public sphere – and quite literally so, as the government managed a ‘Cult Registry’ (‘Fichero de Cultos’), which gave it control over designation of authorities and internal organizational dynamics of non-Catholic organizations (see Catoggio 2008). Therefore, both groups in Argentina, then, mostly played out their differences in the private realm of intra-denomination rivalry. 56 Puente 1974, at 38. Quoted in Espinoza Orihuela 2012. 57 This description of the CCI’s activities is based on Mansilla et al. 2015. 58 See Mansilla et al. 2015, at 338. 59 Quoted in Mansilla et al. 2015, at 343.

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Colombia, 1990s: Evangelical Rights and Neo-constitutionalism

The CCI was an early example of Evangelicals stepping forward to define the public realm beyond the mere protection of their private space of worshipping. That meant, in a way, to challenge the definition of the secular/religious line by the military regime. By doing that in the early 1980s, the CCI was a precursor of Evangelicals mobilizing around the LGBTI debate in the region, and questioning the secular/religious line defined by democratic elected governments in the region almost 40 years later. However, as Mansilla et al. also relate, the CCI’s excursion to ‘publicize’ religion in Chile did not go beyond the return of democracy: by the 1990s, with the end to the dictatorship, the CCI returned to its private realm.60 Such a move resonates with the Evangelical experience in other countries of Latin America by the 1990s. While the case of the Chilean CCI’s in the 1980s shows an Evangelical organization trying to impact areas beyond minority religious rights, other Evangelical Churches in the region by the 1990s were not performing that move. Quite on the contrary, their focus was achieving constitutional guarantees of equality with the Catholic Church and freedom of religion, and not in contesting the line between secular and the religious, as defined in the region’s new constitutions. The fall of dictatorships in the region brought with it a new generation of constitutional texts, most of them characterized by a generous bill of rights,61 which in turn fostered a community of legal practice striving to use public law to transform society in some countries in the region.62 Such a deep constitutional transformation was bound to have an impact on the relation of Latin American Evangelicals and human rights, as is evidenced by the Colombian case, which we now turn to explore. Colombia is often referred to as an interesting example of the complex transformative dynamics triggered by constitutional reform,63 which proves to be the case also with Evangelicals. Overall, during the 1990s, Colombian Evangelicals grew interested in politics, in the sense of participating in the political process in order to achieve legal and constitutional protection for their faith. In this sense, the Colombian example may be read as a transition, in which the populist style starts appearing in Evangelical politics. Thus, in sharp contrast with Chile in the 1970s, the Colombian process evidences a wider grassroots electoral process, in which the popular appeal of Evangelicals begins to grow. However, despite this new emergence of electoral politics, Colombian Evangelicals seemed less interested in policy, in the sense of pushing for particular choices in contested issues of wider

60 61 62 63

Mansilla et al. 2015, at 343. For an exploration of this constitutional dynamic, see Urueña 2013. See Huneeus 2016. See Bogdandy et al. 2017, at 11 and 20.

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societal interest, beyond religious equality and freedom of religion. As such, then, the Colombian case shows the first evidence of electoral politics in Evangelicals movements, that still defers by default to the state’s definition of the secular/ religious line, accepting the ‘private’ nature of their religious belief, and focusing instead on constitutional protection of that private sphere, both in terms of intervention from the State, and of equality with the Catholic Church. The 1990 Constitutional Assembly was a first key moment for Evangelicals in Colombia. While some political activities had taken place in the 1980s,64 it was generally the case that, until then, Colombian Evangelicals saw electoral politics as corrupted, and preferred to stay away.65 It was only with the stunning election of two of their candidates to the Constitutional Assembly that Evangelicals entered the political arena – with a bang. In the early 1990s, Evangelicals had presented a Presidential candidate, Claudia Rodríguez de Castellanos, who had managed to gather only 30.000 votes. And now, just some months later, their list to the Constitutional Assembly had gathered 106.972 votes - the sixth highest number of votes of any political party.66 The reasons for this change of voting patterns are manifold, and not all of them relate to the Evangelical movement itself, but also with the generalized disappointment of voters with traditional political parties, in contrast to whom the Evangelicals represented a breath of fresh air and renovation.67 In this sense, while Colombian Evangelicals in the 1990s evidence the seeds of a new electoral movement, based on popular support, such a movement was not structured as populist reaction to exclusion by the elite, but rather as a strategy of participation in a pivotal moment of constitutional decision-making. Crucially, then, Evangelicals had the political capital to push their agenda in the Constitutional Assembly—the result of a wide national consensus following the demobilization of left-wing guerrilla group M-19, which at the same time tried to create a wholly renewed institutional framework capable of withstanding the mercilessly attack of the Medellín Cartel. The 1991 Constitutional Assembly was truly a grand bargain if there ever was one, that included for the first time not only Evangelicals, but also indigenous populations, and other non-traditional political forces.68 Despite that context of political possibilities, the Evangelical Assembly members pursued a narrow agenda focused mainly on religious rights, in which other issues such as the economic model, armed conflict, or even the then white-hot issue of extradition of drug lords to the US took a remote second place.69 In this sense, typical Latin American populist themes, such as social inclusion and economic

64

For a critical review of the 1980s period, see Roa 1993. See Cepeda van Houten 2007. 66 See El Tiempo, Una Sorpresa: Los Candidatos de Dios, 11 December 1990, https://www. eltiempo.com/archivo/documento/MAM-34564, accessed 18 March 2019. 67 See Moreno 2007. Also Helmsdorff 1996. 68 See Lemaitre Ripoll 2009. 69 See Moreno 2015. 65

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benefits for the most dispossessed were not in the agenda. The priority was on limiting the Colombian Concordat with the Holy See, the article on freedom of religion, and other religious rights.70 Evangelicals in the Colombian Constitutional Assembly generally accepted the secular model of state being discussed, and rather focused on how their own religious beliefs would be protected within it. They tried to leverage their newly found electoral power to crystalize their access to those in power and, crucially, tried to undermine the hegemony of the Catholic Church, in order to gain constitutional protection for their private realm of faith. The model of religious freedom that was consequently adopted reflects much of this ‘privatized’ view of religion. On the one hand, the Constitutional text does not establish a clause of laicité, in the sense that it does not expressly prohibit the Colombian state from adopting or supporting a given religion. The system, on the contrary, is based on the notion of pluralistic character of the Colombian State (as per Article 1) and the subjective rights of freedom of religion (as per Article 19). In the mindset finally adopted, all religious denominations are the same before a neutral state, and individuals had the fundamental right not to see hindered their subjective beliefs, and their expression.71 The fact that Evangelicals were then part of this plurality, at the same level of the Catholic Church, was the main success for Evangelicals.72 These constitutional protections would be enforced by the Constitutional Court, creating a rich case law on the equality of Evangelicals with regards to other faiths (in particular the Catholic Church), and their right to express their religion.73 These developments, though, were not the result of an Evangelical self-positioning vis-àvis these debates, but were rather an external protection provided by the Court. Overall, Colombian Evangelism in the 1990s accepted religion as a fundamentally private matter. This position was not in contradiction with the strategic decision of going into politics, but rather the cause for it. Political action was focused on

70 See Helmsdorff 1996. More recent work has showed that Evangelical groups did have some interest in human rights in the 1990s, particularly through the Confederación de Evangélicos de Colombia (Cedecol). See, for example, Moreno 1999. 71 For an early review of the model, see Cepeda 1995, at 169–170. 72 This mindset was reproduced in 1994, through Law 133, which gave content to the fundamental freedom of religion, whose discussion was led by Viviane Morales, a key Evangelic leader who was in the senate from 1992 to 1996. The law focuses on protecting the right of freedom of religion, the institutional recognition of institutions, and the mechanics of the equality among different kinds of religions. 73 Thus, for example, an important line of precedent extends to Evangelicals the same tax exemptions recognized to the Catholic Church (in Decision T-352 of 1997 (per Eduardo Cifuentes) and Decision T-700 of 2003 (per Rodrigo Escobar)). Another line extends the same rights to Evangelicals in terms of certain legal or administrative procedures, for example, ordering the presence of an Evangelical pastor in jails (T-376 de 2006, per Marco Gerardo Monroy). There are many other decisions that strike down as unconstitutional particular benefits for the Catholic Church, which are not focused on Evangelicals, but of course have an indirect (positive) effect on them (and on all other non-Catholic faiths). For a summary of this case law, see García Jaramillo 2013.

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religious rights, as the means to guarantee that the constitution-making process created a protected space for the faith, in equality with the Catholics. In that sense, the elements of the populist style that can be gleamed in the Colombian example, related in particular with electoral politics, coexist peacefully with a ‘private-mindset’, as defined above. Evangelicals accepted that their beliefs did not belong to the public sphere, but rather that the public sphere (in the form of, for example, the Constitution) should be designed precisely as to allow give them the guarantees to remain outside—by enforcing pluralism and subjective rights, on an equal plane with other cults (the Catholic Church, in particular), that should themselves also remain outside.

8.5

The Public Mindset: LGBTI Rights and ‘Gender Ideology’

The private mindset saw a fundamental shift in the 2000s, as Evangelical groups hastened to position themselves in disagreement with several achievement for the equality of the LGBTI community, such as equal marriage.74 In general, LGBTI rights are a truly salient issue with Evangelicals – even if compared with other religious denomination. Thus, the latest data available from the United States shows that 67% of Catholics and 68% of mainline Protestants (‘historical’ protestants, in the terms of this chapter) supported same-sex marriage, as opposed to only 35% among Evangelicals.75 And, in Latin America, recent research also shows a clear negative correlation between the percentage of Evangelicals in a country and LGBTI rights; that is, the more Evangelicals a country has, the lower its score in LGBTI rights.76 In this context, it is perhaps unsurprising that several Evangelical organizations in the region have come forward to virulently oppose the expansion of LGBTI rights, often joined by the more conservative wing of Catholicism. Ever since 2010, the recognition of new LGBTI rights has been systematically met with a backlash from Evangelical groups, who discredit and resist such advances in the region. This process has created a dynamic of action and reaction that often features, first, an achievement often pushed by progressive civil society organizations (such as same-sex marriage), which is met by a reaction from religious conservative activists, who put pressure on public institutions to scale back the achievement gained in the first place.77

74

While the issue of abortion was also crucially important, it will not be explored here. Data is from 2017. See Pew Research Center 2017. 76 See Corrales 2015. 77 For a useful review of the existing literature on religious conservative activists in the region, see Morán Faúndes 2018. 75

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A revealing case in point of such dynamics is Costa Rica. The first appearance of Protestant movements in Costa Rica was in the late 19th century, as circulation between the country and the English-speaking Antilles created a space for missionary efforts.78 However, an important shift in Costa Rica in the 70s was the Charismatic revival. Despite being resisted by Catholics and historic Protestants,79 ‘new Evangelicals’ grew rapidly in the country, and established Universities and political movements to further its agenda,80 using also used mass media to spread their gospel.81 The Alianza Nacional Cristiana political party was established in 1981, but was initially unsuccessful in electoral politics. However, later Evangelical political parties increasingly made a space for themselves in the public arena. The Partido Renovación Costarricese was moderately successful, electing one Congressman pastor for the 1998–2006 legislative periods and remade itself into the Restauración Nacional party in 2005. From then on, it was able to elect at least one Congressmen in the following legislative period (2006–2010, 2010–2014, and 2014–2018, when it elected Fabricio Alvarado, a journalist and Gospel pop singer). All changed, however, in 2018. In such year, the party made its largest advance, as 14 congressmen (out of 57) were elected from their ranks. A key factor in such a mobilization was a decision issued by the Inter-American Court of Human Rights (IACtHR) in 2017. On May 2016, the Costa Rican (center-left) government submitted a request for an advisory opinion before the Court on the issue of same-sex marriage.82 The Court then issued a groundbreaking ruling in 2017, holding that same-sex couples should enjoy all rights without discrimination, including marriage, and established standards on the self-determination of gender identity (including legal mechanism to change name and gender marker on public records).83 The 2017 IACtHR Advisory Opinion came just a year after a harsh stand-off between the Costa Rican Supreme Court and the Inter-American Tribunal, concerning in vitro fertilization (IVF). In 2012, the IACtHR held that Costa Rican Supreme Court’s decision to declare IVF unconstitutional was, in fact, in violation of the American Convention of Human Rights, and had to be revoked.84 Compliance with such a measure became highly contested in Costa Rica, with the

78

See Holland 2011, at 12. Holland 2009. 80 Holland 2011, at 17–18. 81 http://www.mediosticos.com/cristianos.php (Accessed 19 June 2018). 82 Opinión Consultiva OC-24/17: Identidad de Género, e Igualdad y No Discriminación a Parejas del Mismo Sexo 2017, at 4. 83 Opinión Consultiva OC-24/17: Identidad de Género, e Igualdad y No Discriminación a Parejas del Mismo Sexo 2017, at 87. 84 IACtHR, Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica, Judgment of 28 November 2012 (Merits). 79

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Supreme Court at one point standing in open defiance of the IACtHR, declaring null and void the national norm that sought to implement the international order.85 During that confrontation, the Evangelicals in general, and Fabricio Alvarado in particular, were key players in resisting the implementation of the order—Alvarado was, in fact, one of the proponents of the legal action that asked the Supreme Court to strike down the implementing norm.86 For obvious reasons, the IACtHR reacted swiftly, adopting a stern decision for monitoring compliance in which it declared that IVF was, in effect, valid in Costa Rica – regardless of what the Supreme Court had ruled.87 Ultimately, the Costa Rican court blinked, and decided to take ‘a step aside’ and let the government implement the international order.88 The Evangelicals in Congress kept up the fight,89 though with very little success.90 It was in that context that the 2017 IACtHR decision on same sex marriage entered Costa Rican politics, provoking a fierce backlash among conservative—and specially, Evangelical—movements in Costa Rica.91 The shift was sharp: in a matter of weeks, Alvarado seized on the decision and made LGBTI rights the central theme of the presidential election, pushing him ahead of the other contenders. Taking his cue from the IVF confrontation, Alvarado said that national (and legislative) sovereignty had to be reclaimed from unduly international interference that promoted the ‘LGBTI agenda’.92 Evangelicals took the issue from the altars to the voting stations as a way to challenge a perceived international

85

Sala Constitucional de la Corte Suprema de Costa Rica, Sentencia No. 2016-01692 de las 11:21 hrs. de 3 de febrero de 2016. 86 Source: A Sequeira, PUSC se mete de lleno en lucha contra decreto de Luis Guillermo Solís sobre la FIV, La Nación, 22 September 2015, https://www.nacion.com/el-pais/politica/pusc-semete-de-lleno-en-lucha-contra-decreto-de-luis-guillermo-solis-sobre-la-fiv/ 2XXUUAVGVBEKNHTHGIQ3GAEWWE/story/, accessed 18 March 2019. 87 IACtHR, Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica, Resolution on compliance, February 26, 2016. In particular, see paras 26 and 36. See, however, Judge Vio Grossi’s strong dissenting opinion, in which he questions the IACtHR’s jurisdiction to adopt such a decision, especially in para 52. 88 M Avendaño, Magistrado Luis Fernando Salazar: Es momento de que la Sala IV se haga a un lado, La Nación, 1 March 2016, https://www.nacion.com/el-pais/salud/magistrado-luis-fernandosalazar-es-momento-de-que-la-sala-iv-se-haga-a-un-lado/ KXMCQE7VEZGW7PQPFTGDR25JKU/story/, accessed 18 March 2019. 89 P Recio, Mario Redondo: la resolución de la CIDH es una ‘atrocidad’, La Nación, 1 March 2016, https://www.nacion.com/el-pais/politica/mario-redondo-la-resolucion-de-la-corte-idh-esuna-atrocidad/FF5M5WY4M5EHHABRXE6TRRHVEM/story/, accessed 18 March 2019. 90 G Ruiz, Bloque cristiano con pocas opciones de limitar la FIV, La Nación, 3 March 2016, https://www.nacion.com/el-pais/politica/bloque-cristiano-con-pocas-opciones-de-limitar-la-fiv/ SKBCLWYIDJDPJNJOH6DSGUI2KA/story/, accessed 18 March 2019. 91 See The Economist, Latin America’s human-rights court moves into touchy territory, 1 February 2018, https://www.economist.com/the-americas/2018/02/01/latin-americas-humanrights-court-moves-into-touchy-territory, accessed 18 March 2019. 92 A Murillo, “El matrimonio no parece ser un derecho para homosexuales.” El País, 26 March 2018, https://elpais.com/internacional/2018/03/26/america/1522024297_765736.html, accessed 18 March 2019.

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imposition upon local values, up to the point that the ‘election campaign was dominated by opposition candidate and evangelical Fabricio Alvarado Mu[ñ]oz’s forthright criticism of gay marriage’.93 In an outcome that was completely unpredictable just two months earlier, Alvarado won the first round of balloting with 24.9% of the votes – he was, however, defeated in the second round by a candidate who pledged to comply with the IACtHR opinion. Costa Rica is perhaps one of the clearest examples of many such backlashes in the region, against what conservative Evangelicals consider to be the imposition of an unwarranted ‘gender ideology’. This pushback marks a different moment in the relation between Evangelicals and human rights, as it implies abandoning the ‘private’ mindset that characterized the Evangelical approach earlier, but rather implies a ‘public’ mindset, in the sense that it seeks to intervene in a policy debate that goes beyond the definition of minority religious rights, but rather seeks to put forward a policy option whose main addressees are not Evangelicals themselves. This move towards the ‘public’ also involves an embracing of the populist style in Evangelical politics. Moving beyond the electoral politics that characterized Colombian Evangelicals in the 1990s, the Costa Rican examples shows a truly popular movement in which the key factor of mobilization is the ‘othering’ of a particular group: in this case, the LGBTI community. Moreover, this process of ‘othering’ is complemented by a narrative of social exclusion by elites – in this case, international elites, as embodied in Inter-American Human Rights institutions, and their local allies, which would be dismissive of the popular will. Such a combination of popular support, anti-elitism, and community building on the basis of an ‘other’, makes the Costa Rican case a clear instance of the populist style in Evangelical politics. In both the Chilean and Colombian cases, Evangelical strategy until the year 2000 was focused on mobilizing to guarantee access to power, equality with the Catholic Church, and constitutional protections of the subjective right of freedom of religion. In Chile and Colombia, Evangelicals implicitly accepted that their religious beliefs belonged to the private realm, and had to be protected via proximity to power (Chile) or the Constitution (Colombia). Thus, any belief that Evangelicals held was not supposed to be a part of the public sphere, but should remain private and be protected by public powers. In contrast, the LGBTI controversy reveals a radically different Evangelical mindset. In this latter context, Evangelical beliefs are supposed to be considered as part of the public sphere – that is the whole point of them having been expressed. And they are mobilized to resist an allegedly elite common sense, against which the populist style reacts. Thus, when Fabricio Alvarado expresses the belief that same-sex is wrong, he is not only arguing that the law should protect his subjective right of believing so and to express such belief. He is also positing that such a belief is not only private, but a public idea that belongs

93

DA García, Costa Rica vote halts march of religious conservatism, Reuters, 3 April 2018, https://www.reuters.com/article/us-costarica-election-evangelical/costa-rica-vote-halts-march-ofreligious-conservatism-idUSKCN1HA081, accessed 18 March 2019.

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in the public sphere, and that is in distinct opposition to the views being imposed by an international elite, against popular support. By doing so, Evangelicals stopped deferring to the state in the definition of the secular/religious line and started proposing their own interpretation. Before, Evangelicals were content with accepting that their beliefs be placed on the ‘religious’ side of the fence and sought public protection for those private beliefs. Now, they are claiming the ability to move the fence, and to say that their beliefs are not only ‘religious’, but also political – or, at the very least, that they are political utterances. It is, if one wills, a secularizing move of religious beliefs: the idea that same-sex marriage is wrong stops being an Evangelic belief whose protection in sought, and becomes a policy option that is potentially applicable beyond Evangelicals. This crucial shift is undertaken by framing the conversation in terms of human rights – that is, one of the most secular languages available. Evangelicals in Latin America have tried hard to structure their opposition to same-sex marriage as a question freedom of religion, and how that right should trump other rights.94 Such a framing implies a novel argumentative strategy: it means using a standard ‘private’ mindset argument (protection of a subjective right) in order to bring a religious idea to bear out for everyone, and not only to Evangelicals, as it is, presumably, not Evangelicals who would be the first interested in marrying people of their same sex. Such a framing also allows for the argument of subsidiarity in international human rights law to emerge. As we saw in the Costa Rican case, many of the arguments against same-sex marriage took the form of resistance against the imposition of international orders, by an elite that is out of touch with domestic constituencies. While the Costa Rican experience may prove an outlier, in that the Inter-American Court’s order came in just a few months before a presidential election, the human rights framing allows Evangelicals to mobilize wider critiques of judicial activism and of undue intervention by the Inter-American system in local politics, and other international institutions. Even if the critique of the Inter-American system deals mainly with the issues of democratic governance and the principle of subsidiarity,95 the framing of Evangelical arguments as a question of human rights allow this line of critique to be recruited for the opposition of same-sex marriage and other LGBTI rights in the region. To be sure, this argument could cut both ways, as conservative Evangelical groups have also become transnational. In this sense, the relation of conservative Evangelicals with international law is somehow paradoxical. While the populist style implies a rejection of international elites, Evangelicals have also skillfully used international law to advance a transnational conservative agenda. Thus, they have managed to both deploy international law effectively, and at the same time use it as the target of a popular backlash against the current Inter-American order.

94 95

For this same move in the context of Catholic conservative activism, see Lemaitre Ripoll 2012. See, for example, Contesse 2017. Also Gargarella 2015.

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Thus, religious civil society organizations in the United States are using transnational strategies, such as international litigation, to promote their ideological positions around the globe.96 The transnational presence and influence of religious groups around the world is not new, especially in the Global South, considering that nowadays more than sixty percent of Christians live outside of the North Atlantic region.97 What is different, though, is the way these groups are starting to use international spaces and human rights language98 in order to take advantage of their international networks, for example by funding local NGOs to assist litigation processes among others.99 Perhaps the best example of this dynamic is the Alliance Defending Freedom (ADF - formerly Alliance Defense Fund), based in Scottsdale, Arizona. The ADF is a ‘pro-family’ legal organization that, according to its IRS income tax return, seeks to ‘keep the doors open for the gospel by advocating for religious liberty, sanctity of life, and marriage and the family.’100 The ADF has tried to have an impact on international human rights institutions, and it holds United Nations ECOSOC 15 special consultative status.101 Outside the United States, it has offices in Vienna, Geneva, Brussels, Strasbourg, Delhi, and London, and has filed amicus briefs before the European Court of Human Rights.102 Most recently, it opened offices in Mexico City, from which it has launched litigation efforts in Latin America.103 The ADF has been active in Belize, in the context of the litigation concerning the constitutionality of its anti-sodomy laws.104 Moreover, the ADF filed an amicus brief before the IACtHR in Atala Rifo vs. Chile,105 in which a Chilean judge lost custody of her children after coming out as a lesbian, and also in the Artavia

96

McCrudden 2015. Swartz 2012. 98 D de Cardenas, Los 4 pecados capitales de la ONU contra la libertad religiosa en el mundo, Actuall, 19 February 2017, https://www.actuall.com/persecucion/los-4-pecados-capitales-de-laonu-contra-la-libertad-religiosa-en-el-mundo/, accessed 18 March 2019. 99 Fokas 2016, at 543. 100 Alliance Defending Freedom, 2014 IRS Form 990, 7 November 2014, https://adflegal.blob. core.windows.net/web-content-dev/docs/default-source/documents/resources/about-us-resources/ financials/990-public-adf-june-2015.pdf?sfvrsn=2, accessed 18 March 2019. 101 UN Economic and Social Council, List of non-governmental organizations in a consultative status with the Economic and Social Council as of 1 September 2016, E/2016/INF/5, 29 December 2016. 102 See https://adfinternational.org/who-we-are/, accessed 18 March 2019. 103 Ibid. 104 Southern Poverty Law Center, Dangerous Liaisons: The American Religious Right & The Criminalization of Homosexuality in Belize, July 2013, https://www.splcenter.org/sites/default/ files/d6_legacy_files/downloads/resource/dangerous_liaisons_splc-report.pdf, accessed 18 March 2019. 105 Alliance Defending Freedom, Atala v. Chile, 19 February 2011, https://adfinternational.org/ legal/atala-v-chile/, accessed 18 March 2019. 97

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Murillo vs. Costa Rica, the IVF decision discussed earlier.106 The ADF also intervened in Duque vs. Colombia, related with pension rights of same-sex couples107 and, most recently, the ADF intervened in a case concerning same-sex marriage legislation in Costa Rica.108 Through these moves, both domestic and transnational, Evangelicals are pushing for a different understanding of the secular and the religious—a different division of labor between the celestial and the worldly. Latin American Evangelicals are not pushing for a theocracy, or the collapse between church and state. In this different division, there is a clear distinction between church and state, the secular and the religious; such division is accepted. However, the state acts as referee in an open market place of ideas, but is not the one who decides which ideas are religious (thus belonging to the private sphere), and which ideas are secular (and thus belong to the public sphere). That decision belongs civil society itself (thus, for example, Evangelical groups) who decide that certain of their beliefs are not only religious and private, but are rather part of public sphere. In this reading, there is an equivalency between different public views (for example, Evangelical views opposing same-sex marriage, and other views supporting it) each of which should be considered in its own public merits, and not through a differentiated prism in which one is ‘religious’, and the other is ‘secular’. In this new division of labor, then, the state should not intervene to protect one particular view. On the contrary, precisely because the state should be neutral, it should let the debate among different views play out, ideally in the ballot box and not before domestic or, even less, international courts. In short, then, the Evangelical ‘public’ mindset main shift requires that the state relinquishes it role as gatekeeper of the secular realm, and instead limits itself to playing the role of a referee among equal viewpoints. In this context, the notion of ‘gender ideology’, much discussed in Latin America in connection to Evangelicals, can be better understood. Many conservative Catholics and Evangelicals in the region have argued that, underlying the push to protect LGBTI rights, as well as sexual and reproductive rights, is an ‘ideology’ that dissociates biological sex of the cultural construction of gender. This ‘ideology’ would, then, propose a particular interpretation of reality that is oblivious of biology, which is pushed by activists as ‘natural’, thereby imposing it on people of different views.109

Alliance Defending Freedom, Murillo et al. v. Costa Rica: Protecting Life ‘From Contraception’ in the Inter-American System, 8 May 2012, http://www.adfmedia.org/files/201205-08_Costa_Rica_Update.pdf, accessed 18 March 2019. 107 Alliance Defending Freedom, Alberto Duque v. Colombia, 26 February 2016, https:// adfinternational.org/legal/alberto-duque-v-colombia/, accessed 18 March 2019. 108 Alliance Defending Freedom, Inter-American Court must respect national sovereignty, 3 May 2017, https://adfinternational.org/news/inter-american-court-must-respect-national-sovereignty/, accessed 18 March 2019. 109 See, for example, Miranda Novoa 2012. 106

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Thus, for example, ‘gender ideology’ was one of the variables at play in the rejection of the Colombian Peace Agreement with the FARC, in 2016.110 As a result of the mobilization of women, and then LGBTI civil society organizations, the ambitious deal included numerous references to gender a relevant category for thinking of particular forms of victimization, justice, reparation, and truth.111 This inclusion gave the opportunity to people who opposed the peace deal to join forces with conservative Catholic and Evangelic movements, and establish a common front against the approval of the deal – not only because it was allegedly too lax on guerrilleros, or unfair to the military,112 but because it was trying to impose a ‘gender ideology’ on a population that rejected such a view. The Peace Deal was indeed rejected in a referendum (at least in part due to this argument),113 only to be later approved by Congress – with a text featuring a watered-down version of previous gender commitments, particularly as applicable to the LGBTI community.114 Now: the idea that there is a such thing as a ‘gender ideology’ has drawn widespread criticism in the region;115 and, to be sure, the very notion willfully ignores decades of scholarship on the socio-legal construction of identities.116 The point, however, is the intended use of the word ‘ideology’. By deploying the idea that LGBTI rights, as well as sexual and reproductive rights, are an ‘ideology’, conservative Catholics and Evangelicals implicitly signal that they belong to the private sphere: that they are a belief that some people hold, which might be respected in the private realm, but should not be imposed to the wider society – and certainly not to those who, like Evangelicals, disagree with their interpretation. In this sense, the process of othering that is characteristic of the populist style is in evident display: not only is a particular reading of turn ‘public’, but it is done in such a way that the issue defines a group against an ‘other’. In this context, Latin American Evangelical’s key move in the 2000s is not to argue that the state should be Christian. Rather, in a fascinating argumentative reversal, it is to take control of the gate that defines which arguments are not ‘private’, but belong to the public sphere. It is thus possible to create an equivalence between their view, and that of those supporting LGBTI rights, in which the state’s role is not to decide whether these views belong to the public sphere – but to balance between these opposing viewpoints. The debate on ‘gender ideology’ is, in a paradoxical way, a ‘de-secularization’ of the struggle for rights—in this case, by

110 111 112 113 114 115 116

See generally Urueña and Huneeus 2016. See Céspedes-Báez 2016. See Urueña 2017. See Céspedes-Báez 2016. See Jaramillo Sierra 2017. See, for example, Vaggione 2017. Also Céspedes-Báez and Jaramillo 2018; Rondón 2017. For a summary, see Hawkesworth 2013. On legal scholarship, see Lacey 2004.

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arguing that support of same-sex marriage and other LGBTI rights is a personal (‘ideological’) choice that belongs to the private realm, just as if it were a religious belief.

8.6

Conclusion: Reclaiming the Keys to the Kingdom (of the World)

One of the basic rationales at the origin of the secular state is to avoid conflicting loyalties. Religions are supposed to be private, of limited social relevance, thus creating the conditions to prevent that the loyalties of the believer are in conflict with her loyalties as a citizen.117 Such is the logic of the liberal’s call to ‘to distinguish exactly the business of civil government from that of religion’.118 Latin American Evangelicals have traditionally agreed, at least in principle, to this liberal formulation: it is indeed crucial to ‘distinguish’ between politics and religion, the sacred and the secular, and it was up to the state to draw the line. What was mainly sought, then, was the protection of that which ended on the ‘religious’ side of the fence. In this private mindset the populist style remained mostly dormant in Evangelical politics. The key objective was access to the elites, and resistance to them. But not anymore. Logically, as Evangelicals grow in numbers in the region, so do their wider political and societal ambitions – and their political style. What is sought now is not only protection, but influence on the outlook of the wider society beyond of the walls of the temple, which is deployed by an increasingly populist style, featuring an ambition to transform social relations, overthrow elite governance, and define an ‘other’ as a legitimate target of enmity. This ambition, and its concurrent style, possess a fundamental challenge to the traditional agreement: it is not only up to the state to decide what is religious, but by the believer herself to choose which of her beliefs belong, as political utterances, to the public sphere. It is, therefore, not so much that law, politics, and religion have finally come to collapse into one another, as critical scholars had predicted,119 but rather that the distinction between secular and religious has been reinforced as way of being able to bring into the public sphere arguments of religious origin. The fundamental change and challenge that this chapter has explored is the fact that Evangelicals are asserting control over the entrance to the public realm, that they are reclaiming the keys to the Kingdom of the World, and that they are doing it in an increasingly populist style. The secular state, under the form of governmental authorities, human rights bodies and, particularly, constitutional tribunals and the Inter-American Court of 117 118 119

Cavanaugh 2009, at 121. Locke 1983. Kennedy 1998.

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Human Rights, will have to react. One alternative is to fight back the Evangelical move: reinforce the secular/religious divide, question the populist rhetoric as inimical to international law, and try to take keys back. This move, that in Europe has been ‘secular fundamentalism’,120 implies to provide space for a diversity of religious and other life-views in the private sphere, while simultaneously promoting public secularism, and the denunciation of those who question that line of secularism, as defined by secular actors, such as courts.121 The problem with this approach is that, in it, the very act of questioning the place where the secular line is drawn makes religious belief not subject to protection. As long as a person is content for her beliefs to be characterized by others as ‘religious’ and therefore ‘private’, not apt for the public sphere, then this approach works. But the moment the person tries to question where the secular line is drawn, as do Evangelicals in Latin America, this approach collapses. In this sense, secular fundamentalism fails to tackle the very challenge of the growing populist style of Evangelical politics in Latin America. As Evans put it, there is a serious distortion of the structure of individual protection since it suggests that failing to respect the principle of secularism might deny an activity of its very character as a manifestation. A system of human rights protection of religious belief which fails to embrace manifestations which challenge secularist approaches to public life is a truncated vision of the religious freedom.122

This approach punishes the ‘attitude’ of not respecting the definition of secularism,123 and tries to ‘sanitize’124 the public sphere of arguments deriving from religious conviction. But that approach might not work with Evangelicals in Latin America, whose view, as discussed earlier, is characterized by a personal religious experience, and a deep sense of community – traits that are shared, perhaps, with other deeply felt religious beliefs. In that context, taking away the keys for the definition of secular, and punishing the ‘attitude’ of not bowing to the state’s drawing of the secular/religious line, seems to impose on the believer an artificial division between her public and private personas, which may unfair. Ultimately, 120

Most of this case law has emerged in connection with public manifestations of Islam, with one notable exception. See European Court of Human Rights, Dahlab v. Switzerland, Second Section, Judgment 15 February 2001 Refah Partisi (The Welfare Party) and others v. Turkey, Grand Chamber, Judgment, 13 February 2003, Leyla Şahin v. Turkey, Grand Chamber, Judgment, 10 November 2005, but see Lautsi and Others v. Italy, Second Section, Judgment, 3 November 2009, that dealt with a Finnish mother’s complaint of crosses in Italian public schools. The decision was reversed in Lautsi and Others v. Italy, Grand Chamber, Judgment, 18 March 2011. On secular fundamentalism, see Langlaude 2006, at 937; Evans 2001, at 305 and 312. 121 See Slotte 2010. 122 Evans 2001, at 80. 123 ‘[T]he Court considers this notion of secularism to be consistent with the values underpinning the Convention (…) An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention’. European Court of Human Rights, Leyla Şahin v. Turkey, para 114. 124 Slotte 2010.

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reclaiming the keys to the Kingdom of the World means to the believer to reclaim the unity of the personal experience of faith and politics. Secular authorities, such as constitutional courts and the Inter-American Court of Human Rights, should consider the limitations of the ‘secular fundamentalism’ approach. There are other alternatives that allow for an operational organization of religious beliefs that account for continuity of the personal experience of faith, while respecting pluralism and human rights.125 The Inter-American Court’s own jurisprudence on indigenous rights, while not formally linked to ‘freedom of religion’, has opened new spaces for a pluralist democracy to consider spiritual beliefs in the public sphere. Thus, in Bámaca Veláquez v. Guatemala, the IACtHR expanded the notion of victim to include the relatives of a torture victim, whose remains had not been returned, recognizing the Maya’s belief in the afterlife, and the deep spiritual between the living and the dead in that culture.126 For Judge Cancado Trindade, The spiritual legacy of the dead (…) constitutes, (…) an expression of the solidarity of those who have already died with those who are still alive, in order to help these latter to confront the injustices of this world, and to live with its queries and mysteries (such as those of the passing of time and of the destiny of each one).127

More generally, the IACtHR approach to the right of property and prior consultation to indigenous communities has considered the important spiritual connection of such communities with their territory. For the Court, the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.128

These alternatives show already existing spaces for democratic accommodation with deep religious belief in the context of pluralism, without going to the extreme of secular fundamentalism. Other options, as we have seen, already exist in Inter-American case law. Ultimately, though, and politically costly as it might be, secular authorities in the region do need to act. When realizing that the time for the 125

For example, in reference to the European Court of Human Right’s Lautsi case, Weiler has suggested that religious expression is a spiritual expression, but it is also a political expression, and both dimensions intertwine constantly. Thus, while one must accept and protect the right to be free from religion, it is also the case that we cannot require those who are religious to abstain from participating in public debate, through their religious expression. The duty of tolerance cannot be translated, in that sense, into a duty of changing one’s own identity, it requires respect for the believers and non-believers. See Weiler 2010, the full intervention can be watched at: https://www. youtube.com/watch?v=ioyIyxM-gnM. 126 IACtHR, Bámaca Velásquez v. Guatemala. Merits, decision of 25 November 2000. 127 IACtHR, Bámaca Velásquez v. Guatemala. Separate opinion Judge A. A. Cancado Trindade, para 21. 128 IACtHR, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of 31 August 2001, para 141.

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ultimate sacrifice has come, Jesus prays to God for his disciples: ‘I do not ask that you take them out of the world, but that you keep them from the evil one. They are not of the world, just as I am not of the world’.129 In the World, but not of the World – such is the balancing act that is attempted by many Evangelicals in the region. To do so, they have questioned the very definition of the secular/religious line. Secular authorities should not dodge the question – the populist style is in the region to stay, and will only increase. International institutions need to respond, and be bold in creating argumentative spaces that allow for the Evangelical experience to exist in the public sphere in Latin America, in the context of respect for human rights in general, and LGBTI rights in particular.

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Chapter 9

Addressing Economic Populism Through Law – A Case Study of the World Development Report 2017 Lys Kulamadayil

Contents 9.1 9.2 9.3 9.4

Introduction........................................................................................................................ The World Bank’s Engagement with Law ....................................................................... Populist Economic Nationalism ........................................................................................ Interactions of Populist Economic Nationalism with the Domestic and International Legal Institutions ............................................................................................................... 9.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

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Abstract The World Development Report 2017 enthusiastically endorses law as means of governance and as a mediating force to power. Focusing on the role law plays in societies, it emphasizes its potential of enabling contestation. By contrasting this vision of law with the engagement of populist economic nationalists with domestic legal institutions, this chapter shows that the vision that underlies the WDR17 is, at best, an idealized vision of an internationalized rule of law. Economic populism, as is argued here, has a much more ambivalent relationship with law, which, due to the claim of representing the demos, leads to a stronger sense of entitlement in shaping, breaking and undermining legal institutions in the domestic sphere. Since international law is less susceptible to populist appropriation than domestic law, populists are more likely to reject it completely rather than bending it to their will. Keywords Economic Populism


World Bank
Global Economic Governance

Lys Kulamadayil is Research Fellow, Global Governance Centre, Graduate Institute, Geneva. L. Kulamadayil (&) The Graduate Institute of International and Development Studies, Geneva, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_9

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9.1

L. Kulamadayil

Introduction

In 2017, the World Bank dedicated its World Development Report to the theme Governance and the Law (WDR17). As it analyses developing nations’ governance challenges, it dedicates one chapter to the role of law in addressing such challenges. The report is another milestone in the World Bank’s long-standing tradition of publicly engaging with law and legal principles, claiming to ring in a new era in how it appreciates the various functions law fulfils. Since the early 1990s, a number of World Bank publications have addressed the Bank’s difficulties of squaring the explicit limitation inscribed in its Articles of Agreement not to interfere in the ‘political affairs of any member’1 with the demands of international NGOs and social movements for the Bank to be more mindful of the environmental and social impacts of its work.2 However, the delimitations of the boundaries between the political and the non-political have never been very clear-cut in practise. And, the separation between domestic affairs falling under protected sovereign realm and the ones that the World Bank ought to guide member states on, is similarly unclear.3 To show deference to the boundaries of its mandate i.e., the promotion of economic development, the Bank has so far been reluctant to articulate a clear position on the relationship between a government and its constituent.4 It primarily interacted with governments and left it to them to communicate development policies to its citizens and to ensure that the implementation of such policies was well received and compatible with citizen interest.5 Since the early 1990s however, the World Bank’s mandate has expanded with the expansion of the concept of development. In response to its critics, the Bank’s environmental and social conscience grew and the Bank systematically began to open channels of interaction with citizens and social movements. The World Development Report Series is part of this convergence of the Bank’s interactions vis-à-vis both citizens and states, as is the institutionalizing of its Inspection Panel. The World Bank’s alacrity for identifying pressing questions in social and development governance, such as climate change, unemployment, and most recently, education in order to make its involvement more acceptable is laudable, even if its position on such issues was at times not well received. The timing of the WDR17’s theme Governance and the Law was opportune. The report

1

Articles of Agreement of the International Bank for Reconstruction and Development (1944) UNTS 2 (at 134) (Articles of Agreement of the IBRD), Sec. 10. 2 For an overview, see Dañino 2006; McBeth 2010, at 163–242. 3 Steffek and Holthaus 2018, at 108. To them, it has four ideational ingredients, namely: (1) a transfer of notions of professional colonial administration to the international sphere; (2) a cosmopolitan interpretation of 19th century public unions as caretakers of global public interests; (3) European reform-oriented socialist traditions; and (4) imperial humanitarianism—the belief that Western societies ought to limit the suffering of distant strangers. 4 Rajagopal 2000; Dezalay and Garth 2002. 5 Ikenberry et al. 2018.

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was published when the images of half-starved or drowned children visualized the failure of law and governance institutions to resolve protracted crisis. It was also published at a time where the constant reiteration of terms such as ‘trade wars’, ‘mass migration’ and ‘refugee crisis’ in the daily lives of citizens of the Global North provoked a state of public anxiety and unrest. Even if views on the causes and cures varied, it seemed clear that the world was in disorder and that something needed to be done. The publication of the WDR17 thus coincided with the mobilization of movements and counter-movements. Refugees welcome or PEGIDA, leave or remain, Front National or La République En Marche – everywhere in the Global North, the confrontation with global problems was met with ideological confrontations of the role of the nation-state and of peoples’ and of citizens’ place in this nation-state. As if the World Bank had anticipated what was to come when it settled on the theme of WDR17, its part III discusses different agents driving policy change, identifying different roles and possibilities for elites, citizens and transnational or global influences. The appreciation of such multiple agencies has been celebrated by early commentators of this report for the World Bank’s departure from its much criticized ‘one size fits all’ approach to governance questions.6 Sure enough, much could be said about the newness of this proposed approach to development governance, which foregrounds not the rule of law but the role of law and not just human development but distributive equity.7 This however is not the contribution that this chapter seeks to make. Rather, it ponders the explanatory value of the WDR17’s observations on the role of law in light of the rise of populist economic nationalism. Mindful that the WDR17 was not intended to address this constituency, the chapter’s purpose is not to appraise the WDR17’s success in addressing this issue. Yet, the report was coincidentally published just as economic nationalism achieved its first few notable outcomes, such as the withdrawal of the U.S. from the negotiations of the Transatlantic Trade and Investment Partnership Agreement and the negotiations of the United States–Mexico–Canada Agreement. With the report’s publication, the Bank inadvertently positioned itself in the ongoing ideological struggle between economic liberalism and economic nationalism. This chapter thus ponders the explanatory value of the observations on law in the WDR17 report and opposes this with the concerns of populist economic nationalists. As it does so, it will allude to shortcomings of deploying role of law rhetoric to address the discontent with global economic governance that populist economic nationalism feeds on. This observation will be developed as follows: The next section will briefly revisit the history of the World Bank’s communication with social entities within and across states. It will also offer a brief overview of the World Bank’s tradition of

6 RM Gisselquist, WDR 2017 does not disappoint: Four implications for work in development, World Bank Blogs, 8 March 2017, http://blogs.worldbank.org/developmenttalk/wdr2017-doesnot-disappoint-four-implications-work-development, accessed 24 May 2019. 7 Desai 2018; Randeria and Kulamadayil 2019 (forthcoming).

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engaging with law and, in this context, summarize the principal claims of WDR17 on the role of law. Subsequently, the rise of populist economic nationalism will be sketched out with reference to the contentious relationship it has with economic liberalism, globalism and liberal institutions in the domestic sphere. Doing so shows that what the WDR17 asserts to be law’s virtues, populist economic nationalists view in much more ambivalent terms. Concretely, the WDR17 portrays law as an essential ingredient to the three constitutive elements of effective governance, i.e. commitment, coordination and cooperation, which ensure that a society is prosperous, equitable and safe.8 Populist economic nationalists in principle do not take issue with any of the objectives for effective governance that the WDR17 identifies. They do however question whether commitment, coordination and cooperation, domestically and on the global sphere, really do contribute to the safety, prosperity and equity of a society, and, as a consequence, question the legal regimes that constitutes, facilitates or requires that constitute effective governance in the eyes of the World Bank. On the other hand, the WDR17 also attributes three governance functions of its own to the law, namely that it constrains power, commands behaviour and enables contestation. For populist economic nationalists, law, when it fulfils such functions adequately, is either a vehicle to advance their agenda or an obstacle to it. From this it appears that economic populists in liberal societies do not take issue with the governance functions of law per se, but rather with the policies and practices it supports.

9.2

The World Bank’s Engagement with Law

The World Bank is a creature of the Bretton Woods and San Francisco institutional order and as such an integral part of the liberal world order. Its work is premised on the divide between the economy and politics, its mandate being explicitly limited to promoting development. Over the years, the World Bank has moved from promoting economic development to human development and most recently in its WDR17, equitable development. And, as the concepts of development changed over the years, so did the Bank’s policies of achieving this goal, though certainly always remaining within the liberal spectrum. Though designed as an interventionist international bureaucracy, it was not until the Washington consensus that the World Bank’s relation with the recipient countries of its loans and projects came under scrutiny.9 At the time, Hayek’s neoliberal economic theory was credo of the policy orientation of the Bretton Woods institutions of that era was amplified by the Chicago school and put in practice by British and American foreign policy. According to this policy orientation, the market was conditioned by public

8

World Bank, World Development Report 2017: Governance and the Law, 2017, at 4. J Stiglitz, The Insider, New Republic, 17 April 2000, https://newrepublic.com/article/61082/theinsider, accessed 3 July 2018.

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institutions and therefore, such institutions should be (re-)oriented toward the market.10 Generating overall economic growth was thus the primary concern of such adjustments, while how such growth was to be translated into equity not being given much concern. The World Bank’s Structural Adjustment Programs (SAPs) of the late 1970s and 1980s put this policy into practice, attaching conditions for domestic policy reform to large-investment loans or projects. Even measured by the Bank’s own standards, SAPs fell short of delivering their intended purpose. The Bank’s evaluation report on Nigeria in 1986 for instance, where an SAP had mandated a comprehensive reform of the country’s exchange system and business and agricultural regulations, found that such measures had done little to increase per capita income and purchasing power. Eventually, the failure to yield results and the negative impacts of the Bank’s development projects on local communities and to end extreme poverty inspired social movements to challenge the Bank for its inconsideration towards the environmental and social impacts of its work. The persistence of extreme poverty coupled with instances of significant adverse environmental and social impacts of its development projects eventually led to a strong push against the Bank’s programs, leading the Bank to broaden its own understanding of development to a more holistic approach, which looked beyond mere GDP figures. This re-orientation was significantly inspired by the rise to fame of the concept of sustainability and the growing centrality of international human rights. Accordingly, its first World Development Report of 1978 laid out how economic growth could be tailored for this purpose. A decisive moment for activism against the Bank’s developmental model was the Narmada River Valley project. In the early 1990s, public outcry over the environmental and social impacts of the Narmada irrigation and hydroelectric project erupted as it became known that the World Bank had approved the project without conducting environmental and social impact assessments.11 The popular backlash was championed by different social movements in India. It united individuals of different class, religions and attracted farmers, factory workers and intellectuals alike.12 At the same time, international NGOs moved by the failures of neoliberal development policy to remedy the worst outcomes of poverty began to lobby the Bank to incorporate human rights considerations into its development policy.13 Shortly after the Narmada project debacle, the World Bank set up the Inspection Panel to provide an institutional grievance mechanism for individuals and groups adversely affected by World Bank funded development projects. Then, in 1998, the Bank quite remarkably announced that its 10 S Metcalf, Neoliberalism: the Idea that Swallowed the World, The Guardian, 18 August 2017, https://www.theguardian.com/news/2017/aug/18/neoliberalism-the-idea-that-changed-the-world, accessed 3 July 2018. 11 SA Holmes, India Cancels Dam Loan From World Bank, New York Times, 31 March 1993, https://www.nytimes.com/1993/03/31/world/india-cancels-dam-loan-from-world-bank.html, accessed 3 July 2018. 12 Rajagopal 2000, at 566–557. 13 Ibid., at 566–567.

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role of promoting economic development was a human rights strategy in itself, namely by creating conditions which permitted developing states to meet their human rights obligations.14 Another approach to addressing the shortcomings of the SAPs of reforming public institutions uniquely to best attract foreign investment and facilitate foreign trade has been to embrace, and then incrementally expand the rule of law concept. Promoting initially only Hayek’s interpretation of the rule of law as the credible and predictable adherence of public institutions and citizens to formal rules agreed upon in society and the protection of a limited set of substantive rights, most notably property rights, the more recent rule of law promotion work by the Bank embraces a set of normative goals such as the achievement of freedom or even the fulfillment of socio-economic rights.15 Reasons to promote the rule of law have been for poverty reduction,16 for creating an environment conducive to private entrepreneurship,17 as means to prevent and address conflict and security issues,18 for labor-driven development19 and for risk-management.20 The diversity of development objectives that the rule of law promises to contribute to, led Humphreys to observe that it ‘provides a leading language for the articulation and justification of overarching public policy orientations.’21 The primary beneficiaries of the transcending of this particular idea of the rule of law as ideology across national borders are transnational actors to whom the harmonization of fundamental public and private institutions matters.22 This function of the rule of law promotion is reaffirmed in the WDR17, which reads: ‘Ultimately, the rule of law—the impersonal and systematic application of known rules to government actors and citizens alike—is needed for a country to realize its full social and economic potential.’23 The WDR17 identifies security, growth and equity as minimum goals of governance.24 Distinguishing itself from earlier approaches, the WDR17 proposes to think not only about the rule of law but also about the role of law; to focus less on the form of institutions but rather on their functions and; to move beyond mere capacity-building towards and approach which is considerate of power asymmetries. It approahces law as a language, a structure, a product of social and power relations as well as a tool for

14

World Bank, Development and Human Rights: The Role of the World Bank, 1998. Santos 2006. 16 World Bank, World Development Report 2000/2001: Attacking Poverty, 2000, at 102–03. 17 World Bank, World Development Report 2002: Building Institutions for Markets, 2002, at 98– 149. 18 World Bank, World Development Report 2011: Conflict, Security and Development, 2011, at 55–58. 19 World Bank, World Development Report 2013: Jobs, 2012, at 21–34. 20 World Bank, World Development Report 2014: Risk and Opportunity, 2013, at 23–27. 21 Humphreys 2010, at 7. 22 Neocleous 2012, at 950–57. 23 World Bank, World Development Report 2017: Governance and the Law, 2017, at 14. 24 World Bank, World Development Report 2017: Governance and the Law, 2017, at 4. 15

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challenging and reshaping these relations. Law involves principles of justice and rights; was an institutionalized rules system and consisted of fundamental customs and usages that order social life.25 It identifies three governance functions to law. The command function served to coerce, coordinate and legitimize and the constraint function protected against excesses of power and was fulfilled primarily by constitutions. Most notable however is the WDR17’s assertion that law enables citizens to contest existing governance and power structures. Referring to the commitment and coordination functions of constitutions, the WDR17 notes that law can be used to promote accountability and more equitable bargaining spaces. Furthermore, it observes that law increasingly provided the common language for, and demarcated the arenas of contest among very different contenders.26 The WDR17 dedicated remarkable attention to questions of equity and fairness. It notes that law determines distributive outcomes. Accordingly, a fairer and more equitable public law order would produce fairer and more equitable distributive outcomes and the suitable norms to achieve this, are economic and social rights. The WDR17 thus promotes the incorporation of such rights into domestic constitutions for advocacy and accountability purposes.

9.3

Populist Economic Nationalism

The evolving position of the World Bank on the functions of the rule and the role of law reflects a growing fondness of law itself as a means to deliver on elements associated with development that the economy cannot influence. The almost unconditionally positive associations with law as, and in relation to, power that we find in the WDR17 are noteworthy. Even though it would be too far fetched to suggest that these reflections were formulated with populism in mind, they are phrased in such a general manner that there is nothing to suggest that the authors of the WDR17 would relativize their assertions on how law functions in a society in which populism was prevalent. Given the distinctively anti-globalist and anti-liberal world view of populist economic nationalism, which stands in stark contrast to all ideas that the Bank stands for, it is worthwhile to reflect to what extent law can bridge these positions or at least, be a means of reconciling them. After all, the governance functions of law in society as presented in the report are clearly premised on a specific model of statehood and are not descriptive of all societies. The type of statehood that the World Bank’s account of the role of law in society describes, is that of a liberal nation-state where law both constitutes and limits sovereign power, defines institutional structures and allocates authority to different agents. Coincidentally, it is also the type of statehood, which reconciles liberalism and nationalism and works perfectly well in the current global order, where

25 26

World Bank, World Development Report 2017: Governance and the Law, 2017, at 84. World Bank, World Development Report 2017: Governance and the Law, 2017, at 93.

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sovereign power still structures the political arena, whereas economic governance is dominated by private actors. Yet, it is this type of statehood, which is currently under populist pressure. In such states, populist movements tend to exhibit a paradoxical relationship with liberal safeguards, emphasizing their readiness to defend them in rhetoric, while frequently subverting or eroding them in practise. One only needs to think of the steadily increasing populist echo of the power of the judiciary, court decisions and judicial appointments in the United States, in Poland and in Turkey. In liberal democracies where populist parties seized power, domestic institutions are constantly undermined. Further, the judicial authority of government has been challenged or hollowed out of their independence through a challenge to constitutional principles, such as the separation of powers and the guarantees of rights and freedoms. Counter-intuitively, populist economic nationalism is a highly transnationalized phenomenon, which is frequently adversarial to international institutions and the liberal ideas embedded in them. However, more than its scepticism of international institutions, it is its scepticism of political and economic liberal governance that characterizes current populist movements. ‘[P]opulist movements, in short, are rebelling against the globalized liberal world order—and thus liberal internationalism’s greatest achievement’.27 These movements have found their way into the political system through political parties such as the Front National in France and the Alternative für Deutschland in Germany, Law and Justice in Poland, the Bharatiya Janata Party in India, and most prominently, through Trumpism in the United States. In other countries, it has favored the transition towards authoritarianism e.g. in Turkey and Venezuela.28 And, ‘[t]hese forces loath the alphabet soup of supranational governance institutions—the EU, the UN, the WTO, and the IMF, among others—that globalisation requires.’29 These parties channel the discontent that has stretched from the margins to the center of society and unites the working and middle-classes across the globe.30 Their discontent feeds, in part, off a feeling that the liberal economic order has failed and that this failure is responsible for the rapid sequence of global crisis. A retreat from the global to the national is one solution to this failure that all economic populists share. Accordingly, they seek to reverse globalization by removing their own nation-state from its structures and institutions or even by dissolving them entirely. What distinguishes populists from social movements is their appropriation of the peoples’ identity. In their perception, they are the demos and accordingly, are entitled to mould governance institutions as they see fit.31 27

Jahn 2018, at 47–48. Polakow-Suransky 2017. 29 N Roubini, Economic insecurity and the rise of nationalism, The Guardian, 2 June 2014, https://www.theguardian.com/business/economics-blog/2014/jun/02/economic-insecuritynationalism-on-the-rise-globalisation-nouriel-roubini, accessed 3 July 2018. 30 Johnson and Barnes 2015. 31 D Rodrik, In Defense of Economic Populism, Social Europe, 18 January 2018, https://www. socialeurope.eu/defense-economic-populism, accessed 21 May 2019. 28

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Interactions of Populist Economic Nationalism with the Domestic and International Legal Institutions

Regarding populists’ engagement with law, one can observe a curious phenomenon. As much as they seek to dismantle the legal foundations of global economic governance, they also cannot completely do without the legal space. Accordingly, their goals are to replace existing laws, not to get rid of them completely; to change the composition of courts to their favour, not to abolish them. Their aversion against the legal protection of foreign trade and investment frequently coincides with an agenda for tougher migration laws, as well as legal incentives for the domestic production of goods and services as well as better protections of the domestic work force. Overall populists have a rather ambivalent relationship with law and legal institutions. Very few populist economic nationalists would object to the governance functions of law command, constrain and enable contestation per se in the domestic sphere—rather they wish to appropriate them. This reformist agenda does not extend to international economic institutions. Instead, the goal here is to make them obsolete or, at the very least, significantly curtail their power. There is of course one obvious and very simple explanation for this. Nationalism and internationalism do not reconcile very well. There may however be another explanation, namely that the function that law serves in the domestic context are much harder to appropriate by populists in the international one. There are several reasons for this. For once, domestic institutions and laws in liberal countries are, by default, more reactive to political change than international ones. Apart from constitutionally protected rights and institutions, domestic governance is meant to be moulded by whomever the demos elects. When populist parties are in power, even radical change, such as the curtailing of power of constitutional courts, can be achieved in a democratically legitimate way. Economic populists are best served by elevating domestic institutions and markets above all else. Curiously enough one explanation for this can be found in Kennedy’s application of the Gramscian concept of hegemony to law and legal institutions. He sees hegemony in close relation to ideology and defines it as the notion of the exercise of domination through political legitimacy, rather than through force. In the modern state, hegemonic power was thus consolidated by generating consent from the masses through the creation of institutions, and organizations, and social patterns that appeared legitimate to the masses of people.32 This is not true to the same extent for international law and institutions. The growing number of treaty

32

Kennedy 1982, at 32.

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adoptions especially in the early 2000s has shown that international law is easily adopted, but is less easily changed.33 As Hardt and Negri argue, international law has become the constitutional law of a cosmopolitan society, and as such, it has two distinctive features, namely the right to intervention and the right to policing and the Bretton Woods Institutions are among the actors who can enforce these rights.34 Empire visualizes how international law structures relations, including those of the global economy by transforming choices into routine.35 In doing so, law solidifies one form of economic ordering, more precisely—the liberal one.36 In short, the absence of one sovereign leaves international law and institutions structurally far less susceptible to appropriation by populism than domestic laws. Secondly, international law embodies widely accepted ideas, that, once they have taken legal form, became superior to non-legal rules and easily penetrate national boundaries.37 Its adaptability to local contexts, where it can be used by different domestic actors to bargain with, makes it a powerful instrument even in purely domestic settings.38 The power of its form is coupled with a set of very specific ideas, which challenges the belief systems of economic populists. [I]nternational law currently represents a welfare-driven and bio-political structuring mode for international society, which not only counterbalances liberal economic globalization but also draws from it. (…) Just as liberal European States have become welfare States at a domestic level, contemporary international law evolved from a liberal law with a limited role of regulating essential co-existential issues into a multifunctional guardian of welfare governing the lives of States and individuals.’ It is widely considered the ultimate guarantor of collective wellbeing. International law is no longer merely a means of social regulation, but is becoming an instrument of intervention; it is being used to transform international society in order to make up for economic, social, or equitable imbalances.39

Accordingly, the ideas imbued in international law directly contradict the beliefs that inform populist economic nationalism. Populist governments therefore tend to ridicule international law, to withdraw from it, or, to simply ignore it.

33

Pauwelyn et al. 2014. Ibid., at 18–21, 31; also argued by Barnett and Duvall 2005, at 54. 35 Orford 2016, at 708–709. 36 ‘The choices between import substitution and export-led growth, or between neoliberal market-based development and strategies of either import or export promotion, offer the opportunity for sharp debate about economic theory and political preferences. Even during periods of broad consensus—on import substitution or neoliberalism—there are numerous implementation decisions to be made, which require both economic theory and political commitment. The choices within and between regimes are made and implemented in legal terms.’ See Kennedy 2004, at 156. 37 Scott 1994, at 317–19. 38 Bedau made this point specifically with regard to the promotion of the rule of law concept, which is vague and indeterminate. See Bedau 2005. 39 Tourme-Jouannet 2007, at 816–821. 34

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Conclusion

Despite the WDR17’s ambitious outset not to engage with the rule of law but rather with the role of law, much of the capacious understanding of the rule of law, informed primarily by concepts from international law persists, also with regard to the governance functions that it attributes to law. Those are the ones that the authors of the WDR17 were surely thinking of in their remarkably enthusiastic appraisal of law and its ability to steer governance in a way that it would effectively achieve security, equity and growth in a society. And, even though it is never explicitly mentioned in the report, the society that the World Bank envisions is the liberal nation-state. Thinking through the framework that the Bank proposes through the lens of economic populism however is quite revealing in the sense that it points to a misguided assumption that internationalized legal ideas, especially those pertaining to governance, would produce the same effects, i.e., safeguard the liberal order, in all contexts. For better or worse, international legal ideas are not a language or structure that economic populists can productively engage with or appropriate. Yet, engaging with this belief system, or at least finding ways to address the fears that it is, will be important for global economic institutions to navigate the challenges posed to them by the rise of economic populism.

References Barnett M, Duvall R (2005) Power in International Politics. International Organization 59(1):39– 75 Bedau HA (2005) Rule of Law. In: Honderich T (ed) The Oxford Companion to Philosophy. Oxford University Press, New York Dañino R (2006) The Legal Aspects of the World Bank’s Work on Human Rights in Development Outreach. The International Lawyer 41(1):21–25 Desai D (2018) Power rules: The World Bank, rule of law reform, and the World. In: May C, Winchester A (eds) Handbook on the Rule of Law. Edward Elgar Publishing, Cheltenham Dezalay Y, Garth BG (2002) The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States. University of Chicago Press, Chicago Hardt M, Negri A (2001) Empire. Harvard University Press, Cambridge Hayek FA (1960) The Constitution of Liberty, University of Chicago Press, Chicago Humphreys S (2010) Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice. Cambridge University Press, Cambridge/New York Ikenberry GJ, Parmar I, Stokes D (2018) Introduction: Ordering the World? Liberal Internationalism in Theory and Practice. International Affairs 94(1):1–5 Jahn B (2018) Liberal Internationalism: Historical Trajectory and Current Prospects. International Affairs 94(1):43–61 Johnson J, Barnes A (2015) Financial Nationalism and its International Enablers: The Hungarian Experience. Review of International Political Economy 22(3):535–69 Kennedy D (1982) Antonio Gramsci and the Legal System. ALSA Forum 6(1):32–37 Kennedy D (2004) The Dark Sides of Virtue: Reassessing International Humanitarianism. Princeton University Press, Princeton

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Kennedy D (2016) A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy. Princeton University Press, Princeton McBeth A (2010) International Economic Actors and Human Rights. Routledge, Abingdon Neocleous M (2012) International Law as Primitive Accumulation; or, the Secret of Systematic Colonization. European Journal of International Law 23(4):941–62 Orford A (2016) Theorizing Free Trade. In: Orford A, Hoffmann F (eds) The Oxford Handbook of the Theory of International Law. Oxford University Press, Oxford/New York Pauwelyn J, Wessel RA, Wouters J (2014) When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking. European Journal of International Law 25(3):733–63 Polakow-Suransky S (2017) Go Back to Where You Came From: The Backlash against Immigration and the Fate of Western Democracy. Nation Books, London Randeria S, Kulamadayil L (2019, forthcoming) Promise and Pitfalls of Polytheism: A socio-legal critique of the World Development Report 2017. International Development Policy Rajagopal B (2000) From Resistance to Renewal: The Third World, Social Movements and the Expansion of International Institutions. Harvard International Law Journal 41(2):529–78 Santos A (2006) The World Bank’s Use of the “Rule of Law” Promise in Economic Development. In: Santos A, Trubeck D (eds) The New Law and Economic Development. Cambridge University Press, New York Scott SV (1994) International Law as Ideology: Theorizing the Relationship between International Law and International Politics. European Journal of International Law 5(1):313–25 Steffek J, Holthaus L (2018) The Social-Democratic Roots of Global Governance: Welfare Internationalism from the 19th Century to the United Nations. European Journal of International Relations 24(1):106–29 Tourme-Jouannet E (2007) What Is the Use of International Law - International Law as a 21st Century Guardian of Welfare. Michigan Journal of International Law 28(4):815–62

Part II

Dutch Practice

Chapter 10

Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v the Netherlands Laura Burgers and Tim Staal

Contents 10.1 Introduction...................................................................................................................... 224 10.2 The Admissibility of Urgenda’s Claims ......................................................................... 226 10.2.1 Direct Applicability of the ECHR ..................................................................... 226 10.2.2 Future Generations and People Abroad ............................................................. 228 10.2.3 Uptake................................................................................................................. 228 10.3 Articles 2 and 8 ECHR’s Duty of Care to Protect Against Dangers of Climate Change ............................................................................................................................. 229 10.3.1 The Strasbourg Standard for the Prevention of Future Environmental Dangers ............................................................................................................... 230 10.3.2 Climate Change: A Real Threat Resulting in Serious Risk .............................. 232 10.3.3 Preventing Infringement ‘as Far as Possible’ .................................................... 233 10.4 Law, Facts and Civil Procedure...................................................................................... 234 10.4.1 25% as the Unassailable Minimum ................................................................... 234 10.4.2 Negative Emissions ............................................................................................ 235 10.4.3 Dismissal of the State’s Other Objections ......................................................... 236

Laura Burgers works as Ph.D. Candidate at the Centre for the Study of European Contract Law, University of Amsterdam. Her thesis Justitia, the People’s Power and Mother Earth focuses on the democratic legitimacy of environmental lawsuits like Urgenda, and is to be finished by the end of 2019. Tim Staal completed his Ph.D. research at the international law department of the University of Amsterdam. It was published by Hart Publishing as Authority and Legitimacy of Environmental Post-Treaty Rules (2019). He currently teaches international law at the same university and is a freelance investigative journalist for Platform Investico and De Groene Amsterdammer. L. Burgers (&)
T. Staal University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] T. Staal e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_10

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10.5 Separation of Powers....................................................................................................... 10.5.1 The Courts’ Considerations................................................................................ 10.5.2 Did the Court Overstep the Separation of Powers by Misinterpreting the Law? ............................................................................................................. 10.5.3 Should Courts Sometimes Refrain from Delivering Legally Correct Decisions?........................................................................................................... References ..................................................................................................................................

238 238 240 241 243

Abstract On 9 October 2018, The Hague Court of Appeal confirmed the first instance judgement rendered in the world-famous Urgenda case: the Dutch State commits a tort by setting a goal for greenhouse gas emissions reduction of only 20% by the end of 2020, compared to 1990 levels. The State is ordered to raise this goal to at least 25%. Both judgments are heavily criticised by constitutional and administrative law scholars. Most of this critique is ultimately linked to the objection that the Courts overstepped their task in the constitutional separation of powers. With this objection the State also takes the case to the Supreme Court. This annotation analyses the appellate court’s decision step by step, pointing out where it differs from the lower court’s decision and engaging with the various critiques. The Court of Appeal directly applies Articles 2 (right to life) and 8 (right to family life) of the ECHR, finds that these rights cover climate change related situations, and on the basis of Dutch civil procedure determines that 25% reduction is the factual minimum to prevent ECHR violations. Although parts of the decision could have been motivated in more detail, the authors conclude that the Court applied the law correctly and that neither the separation of powers, nor the political question doctrine were infringed.










Keywords Urgenda Separation of powers ECHR Climate change litigation Human rights Right to life Right to family life Environment Private law Civil procedure Political question doctrine




10.1

















Introduction

9 October 2018 was of great importance for the global climate change litigation trend. The Court of Appeal in The Hague was about to make public its decision in the world famous Urgenda case.1 Three years earlier, in June 2015, the District Court of The Hague had ordered the Dutch State to reduce greenhouse gas emissions by at least 25% by the end of

1

Court of Appeals of The Hague (Gerechtshof Den Haag, hereafter: Court of Appeals) Urgenda v State of the Netherlands, ECLI:NL:GHDHA:2018:2591, 8 October 2018.

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2020, compared to the levels of 1990.2 To do less would constitute a tort. Shortly after, the Dutch State announced it would appeal the judgment. Although it promised to comply with the judgment, the State disagreed on a principled basis: the separation of powers, or trias politica, would stand in the way of a national court giving such an order. One of us went to the Court of Appeal to attend the reading of the judgment. It was an Indian summer morning, unusually warm for the time of year. Supporters of the claimant, the environmental NGO Urgenda (portmanteau for ‘urgent agenda’), had come in large numbers, as had journalists covering climate change. Waiting for the doors to open, all present were nervous – even the Court staff who had to make sure everyone would fit in the courtroom. Throughout the half hour that the Court Chamber’s president took to read a summary of the judgment, people sighed with relief when she – just like the lower court – fully acknowledged the dangers of climate change; jurists had surprised looks on their faces hearing that the appellate court – in contrast to the 2015 decision – based its decision on a direct application of Articles 2 and 8 European Convention of Human Rights (ECHR); and everyone applauded, laughed and some even cried after the president finished by sustaining the 25% reduction order. Less enthusiastic comments, from several eminent Dutch administrative and constitutional law professors, dominated the national media during the week that followed.3 To their mind, the judgment did little to abate fears for, as a Dutch constitutional law expression goes, judges ‘sitting on the chair of the government’: The Court would have exceeded its adjudicative powers at the expense of the other branches of government. Meanwhile, it is far from evident that the State will reach the 25% reduction in 2020 mandated by the Court. In the weeks that followed, suggestions of how to achieve it ranged from closing coalfired electricity plants to stimulating nuclear energy. To top it all off, the government has stated that it will appeal the judgment

2

District Court of The Hague (Rechtbank Den Haag, hereafter: District Court) Urgenda v State of the Netherlands, ECLI:NL:RBDHA:2015:7145, 24 June 2015. 3 Inter alia L Breebaart, Hoogleraar: Urgenda zadelt regering op met onmogelijke last, Trouw, 9 October 2018, https://www.trouw.nl/home/hoogleraar-urgenda-zadelt-regering-op-met-onmogelijkelast*ad785b24/, accessed 23 January 2019; G Boogaard, Laten we de democratie niet onder curatele stellen, De Volkskrant, 11 October 2018, https://www.volkskrant.nl/columns-opinie/laten-we-dedemocratie-niet-onder-curatele-stellen*b53f718a/, accessed 23 January 2019; S de Jong, Maar er bestaat helemaal geen ‘recht op een goed klimaat’, NRC, 12 October 2018, https://www.nrc.nl/ nieuws/2018/10/12/twistgesprek-7-a2417785, accessed 23 January 2019; W Hommes, Het Hof bedrijft politiek met de Urgenda-uitspraak, De Volkskrant, 16 October 2018, https://www.volkskrant. nl/columns-opinie/het-hof-bedrijft-politiek-met-urgenda-uitspraak*b528c988/, accessed 23 January 2019; I Leijten, The Dutch Climate Case Judgment: Human Rights Potential and Constitutional Unease, Verfassungsblog, 19 October 2018, https://verfassungsblog.de/the-dutch-climate-casejudgment-human-rights-potential-and-constitutional-unease/, accessed 23 January 2018.

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to the Supreme Court, again for the principled reason that it would have infringed the powers of the political branches of government.4 In other words, the controversy regarding the Urgenda case, which already began before the 2015 decision, is alive and kicking.5 In the meantime, the first instance decision has already inspired many foreign climate lawsuits.6 The Urgenda case therefore has both theoretical and practical, national and transnational significance, warranting careful analysis. The judgment, written in exceedingly clear language, takes a more straightforward line of reasoning than the lower court – at times perhaps too straightforward, to the point of making itself vulnerable to the critique that it is cutting corners without proper motivation. Motivation aside, however, we believe that the core of the judgment withstands the withering critiques of unconstitutionality. The Court of Appeal takes four crucial steps to reach its decision, in addition to many supporting arguments worth mentioning in their own right. In this contribution, we devote a section to each of those four steps: the legal standing of Urgenda and, as a result, the admissibility of the ECHR claims (Sect. 10.2); the applicability of Articles 2 and 8 ECHR to, and their proper interpretation in the context of, the dangers of climate change (Sect. 10.3); the factual relevance attached to (semi-)legal sources against the background of the private law character of the case and the dismissal of the State’s objections (Sect. 10.4); and, in light of the previous steps, the rejection of the State’s separation of powers argument (Sect. 10.5).

10.2

The Admissibility of Urgenda’s Claims

10.2.1 Direct Applicability of the ECHR In the upheaval surrounding Urgenda’s initial victory three years ago, it was quickly forgotten that the District Court had ruled against the NGO on a major procedural point: it held Urgenda’s claims based on direct application of the ECHR to be inadmissible. This decision caused the District Court to veer off into uncharted and complicated territory. That is, in the Dutch civil code, Article 6:162 distinguishes between three types of tortious acts: (1) violations of someone else’s right/entitlement; (2) an act or omission breaching a duty imposed by law; and (3) an act or omission in violation of what according to unwritten law is deemed fit in societal interrelations. 4 Ministerie van Algemene Zaken, Staat tekent cassatie aan in Urgenda-zaak - Nieuwsbericht, Rijksoverheid.nl, 16 October 2018, https://www.rijksoverheid.nl/actueel/nieuws/2018/11/16/staattekent-cassatie-aan-in-urgenda-zaak, accessed 23 January 2019. 5 Just like Tim’s daughter Halina who was born in the week the Appellate Court rendered its Urgenda decision. 6 For a sophisticated analysis of the transnational links between climate lawsuits, see Colombo 2017.

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Without the directly applicable ECHR articles, the court could not go for the ‘simple’ torts of type 1 or 2. Instead, the District Court turned to tort type 3. Dutch case-law consistently held that a violation of ‘what according to unwritten law is deemed fit in societal interrelations’ includes hazardous negligence. The District Court said that the State acted hazardously negligent in aiming for a target of less than 25% reduction by the end of 2020. To come to this verdict, it applied Articles 2 and 8 of the ECHR ‘indirectly’, together with an intricate web of international and EU law as well as a national constitutional duty of care.7 All these sources would ‘reflect’ through the mirror of the private legal duty not to act hazardously negligent contained in Article 6:162. The ECHR norms, after first having been set aside, returned as ‘sources of inspiration’ in this rickety contraption.8 It is common practice in the Netherlands for Courts to interpret national law consistently with international law, even when that international law lacks direct applicability. This practice is known as the ‘reflex effect’ in Dutch legal lingo.9 Yet the unprecedentedly complicated construction in Urgenda led the State and others to make scathing remarks about the District Court stretching this concept to breaking point.10 Why then had the lower court concluded Urgenda’s ECHR claims were inadmissible and made its life so difficult? It appears to have been under the erroneous impression that it had to apply the criteria for the admission of a case to the European Court of Human Rights (ECtHR), rather than to a Dutch court. Given that Article 34 ECHR restricts claims by NGOs to violations of which they are personally a victim, it was hard to see how Urgenda could itself be seen as a potential victim of climate change. ‘After all,’ the District Court reasoned, ‘unlike with a natural person, a legal person’s physical integrity cannot be violated nor can a legal person’s privacy be interfered with’.11 Despite its extraordinary win, Urgenda took the step to specifically appeal the judgment on this point, and it paid off. The Court of Appeals declared Urgenda’s claims based on Articles 2 and 8 ECHR admissible. This set the Court on a much more straightforward path to achieve the same outcome: the order to reduce at least 25% of greenhouse gas emissions by the end of 2020. In support, the Court of Appeals notes it is irrelevant for Urgenda’s admissibility before Dutch courts, that Article 34 ECHR does not accept an actio popularis as a rule of standing for the Strasbourg Court: ‘Such would not be possible. This is for the Dutch judiciary to decide. This means that Article 34 ECHR cannot serve as a 7

Article 21 Dutch Constitution. District Court, 4.46. Critical is E Gijselaar, Het EVRM en de klimaatzaak: toetsing aan niet van toepassing zijnde normen, Utrecht Centre for Accountability and Liability Law Blog, 8 July 2015, http://blog.ucall.nl/index.php/2015/07/het-evrm-en-de-klimaatzaak-toetsing-aan-niet-vantoepassing-zijnde-normen/, accessed 24 January 2019. 9 ‘Reflexwerking’ in Dutch. 10 Pleadings of the State, 1.22–1.26. 11 District Court, 4.45. 8

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basis for denying Urgenda the possibility to rely on Articles 2 and 8 ECHR in these proceedings.’12 The Dutch rules do provide for class actions of interest groups, in Article 3:305a of the Civil Code. To pursue a civil claim, Article 3:303 Civil Code requires a ‘sufficient interest’. This must be an interest of a legal subject, whether the legal subject herself is pursuing the claim or whether an NGO does so on her behalf.13 The appellate court thus reasons: ‘Since individuals who fall under the State’s jurisdiction may invoke Articles 2 and 8 ECHR in court, which have direct effect, Urgenda may also do so on their behalf.’14

10.2.2 Future Generations and People Abroad On first instance, the lower court had remarkably stated that Urgenda itself could invoke interests of both people outside the Netherlands and future generations, since its internal by-laws stipulate that the NGO strives for ‘a sustainable society, beginning in the Netherlands,’ and since sustainability has an inherent intergenerational element.15 Yet the unborn are in principle not legal subjects under Dutch law,16 which makes it hard to see, under current law, how their interest may constitute a sufficient interest to pursue a civil claim under Article 3:303. The State complained about this on appeal. The appellate court circumvented the question and left unresolved whether NGOs may defend the interests of (non-Dutch) future generations under Dutch civil procedural law. It finds that the State has no procedural interest in objecting Urgenda’s admissibility in this regard, since admissibility as such is already a given, for the current generation of Dutch nationals.17

10.2.3 Uptake The ECHR claims being admissible may seem a small, intermediary step. Yet the applicability of the ECHR Articles does two important things for Urgenda’s case. First, it brings on board the extensive case law of the ECtHR on Articles 2 and 8

12 13 14 15 16 17

Court of Appeals, 35. See Bleeker 2018a. Court of Appeals, 36. District Court, 4.7–4.8. Cf Article 1:2 Dutch Civil Code. Court of Appeals, 37 (emphasis added).

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relating to the environment. The ‘incorporation doctrine’ requires national courts to interpret the ECHR in accordance with Strasbourg’s case law as res interpretata.18 Second, the appellate court opens up the road to an argumentation that might be more readily acceptable for constitutional lawyers than the ‘reflex effect’ construction built by the District Court.19 After all, the ECHR has been directly applied by Dutch courts since the mid-70s. As we will argue in more detail later, it makes the State’s main source of indignation about the first Urgenda judgment – that the District Court disrespected the trias politica – less pressing: directly applying the ECHR has been the bread and butter of the national courts for decades.

10.3

Articles 2 and 8 ECHR’s Duty of Care to Protect Against Dangers of Climate Change

The Court of Appeals’ judgment has come under attack for making the move to read an - overly specific and far-reaching - obligation to protect citizens from climate change into human rights.20 Consequently, the question is whether the Court’s application of Articles 2 and 8 ECHR is the human rights revolution the commentators make it out to be, or whether it is an application of a robustly developed case law to a new set of facts that was simply never before submitted to a court of law?21

This doctrine is usually traced back to Article 32 ECHR, according to which: ‘The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention…’ (emphasis added), eg Gerards and Fleuren 2013, p. 43. 19 Cf Besselink 2018. 20 W Hommes, Het Hof bedrijft politiek met de Urgenda-uitspraak, De Volkskrant, 16 October 2018, https://www.volkskrant.nl/columns-opinie/het-hof-bedrijft-politiek-met-urgenda-uitspraak* b528c988/, accessed 23 January 2019; I Leijten, The Dutch Climate Case Judgment: Human Rights Potential and Constitutional Unease, Verfassungsblog, 19 October 2018, https:// verfassungsblog.de/the-dutchclimate-case-judgment-human-rights-potential-and-constitutional-un ease/, accessed 23 January 2019. 21 Defending the latter is C Eckes, De Urgenda uitspraak doet júíst recht an het EVRM, EU Explainer, 27 October 2018, http://euexplainer.nl/?p=520, accessed 24 January 2019. This question is of extra importance, because some older case law of the Dutch Supreme Court has been understood by some commentators to prevent Dutch courts from interpreting the ECHR more generously than the European Court of Human rights. See X v Y, Dutch Supreme Court (Hoge Raad), 10 August 2001, ECLI:NL:HR:2001:ZC3598 and discussion of potential consequences for Urgenda by I Leijten, The Dutch Climate Case Judgment: Human Rights Potential and Constitutional Unease, Verfassungsblog, 19 October 2018, https://verfassungsblog.de/the-dutchclimate-case-judgmenthuman-rights-potential-and-constitutional-unease/, accessed 23 January 2019. 18

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10.3.1 The Strasbourg Standard for the Prevention of Future Environmental Dangers The Court reminds us that the Strasbourg case law has since long included environment-related situations in the protection offered by Articles 2 and 8. This also entails positive obligations for the state to prevent future violations of the right to life,22 and ‘severe environmental nuisances’23 to private and family life and the home.24 As the Court summarizes: ‘A future infringement of one or more of these interests is deemed to exist if the interest concerned has not yet been affected, but is in danger of being affected as a result of an act/activity or natural event.’25 This has been uncontroversial since at least the 2004 Öneryildiz judgment.26 But does this case law’s interpretation of Articles 2 and 8 also apply to environmental dangers of the nature and scope of climate change? On the one hand, although the judgments the Court cites in support all concern environmental dangers of a (much) smaller scale, with consequences for smaller numbers of people, no indications can be found in the ECtHR’s case law that climate change would necessarily be excluded from the scope of positive obligations under Article 2.27 As Eckes submits, the Court of Appeals was simply confronted with a more fundamental environmental problem than ever before. This in itself cannot be a reason not to apply existing law to new facts, particularly considering the ‘living instrument’ doctrine of the ECHR.28

22 Öneryildiz v Turkey, ECrtHR Grand Chamber, No. 48939/99, 30 November 2004, 89, 90 (‘deterrence against threats’, ‘preventive measures’). Although the positive obligations of states under Articles 2 and 8 include other aspects as well, such as an obligation to stop ongoing nuisances and a procedural obligation to investigate, these are irrelevant here, since Urgenda’s claim concerns the future conduct of the state. 23 Fadeyeva v Russia, ECrtHR Chamber, No. 55723/00, 9 June 2005, 64. 24 Fadeyeva, 89 (‘to assess whether the State could reasonably be expected to act so as to prevent or put an end to the alleged infringement of the applicant's rights’); Brincat and Others v Malta, Nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, 24 July 2014, 116 (‘to legislate or take other practical measures to ensure that the applicants were adequately protected’). 25 Court of Appeals, 41 (emphasis added). There is some boldness in the Court converging Articles 2 and 8 into a single norm. Arguably that is misguided insofar as the greater role that the concept of fair balance plays under Article 8. For this point, see also https://verfassungsblog.de/ the-dutch-climate-case-judgment-human-rights-potential-and-constitutional-unease/. We do not pay more attention to this point because a violation of either Article would be sufficient to arrive at the same verdict. 26 Referring to Öneryildiz v Turkey. As the emphasized part makes clear, the norm requires a factual assessment, the importance of which we will get to in a moment. 27 Öneryildiz, 71 (‘The Court considers this obligation must be construed to apply in the context of any activity, whether public or not, in which the right to life may be at stake …’). Cf also C Eckes, De Urgenda uitspraak doet júíst recht aan het EVRM, EU Explainer, 27 October 2018, http://euexplainer.nl/?p=520, accessed 24 January 2019. 28 C Eckes, De Urgenda uitspraak doet júíst recht aan het EVRM, EU Explainer, 27 October 2018, http://euexplainer.nl/?p=520, accessed 24 January 2019.

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On the other hand, the Court should be criticized for failing to acknowledge more explicitly that it is quite a leap from a state’s obligations concerning pollution by a single leather factory,29 or waste site,30 to the consequences of climate change. Even more advisable would have been for the judges to explain in more detail why they think this leap finds support in these or other cases.31 Not doing so makes the judgment unnecessarily vulnerable to cassation by the Supreme Court. What the Court does recognize is that the case law holds that Articles 2 and 8 ECHR have to be explained in a way that does not place an ‘impossible or disproportionate burden’ on the government. This means that governments can only be required to take actions that are ‘reasonable’, and only when there is a real and imminent threat the government knew or should have known of. But despite these limitations, the Court points out, effective protection of the rights may demand ‘early intervention’ by the government. In short, the Court concludes, the following standard extracted from Öneryildiz must be applied: ‘If the government knows that there is a real and imminent threat, the State must take precautionary measures to prevent infringement as far as possible.’32 Once the real and imminent threat and the state’s knowledge thereof is factually established, there is little wiggle room left not to take precautionary measures.33 But which precautionary measures exactly? What role does the ‘wide margin of appreciation’ of the state play? In the case law from Strasbourg, the factual situation that a state is or should be aware of is decisive: if the nature of the threat dictates which particular precautionary measures would be ‘necessary and sufficient’ to quell the danger,34 the state’s margin of appreciation quickly diminishes.35

29

Lopez Ostra v Spain, ECtHr Chamber, No. 16798/90, 9 December 1994. Öneryildiz v Turkey. 31 Human rights scholar Rick Lawson pointed us to a decision that the Court of Appeal could have invoked, ECtHR Mastromatteo/Italy 24 October 2002, nr. 37703/97, in which it was considered whether the right to life was violated when criminals on prison leave murdered the son of the applicant. Although no violation was found, the ECtHR did deem this situation to fall within the scope of Article 2, which demonstrates this Article does not require the State would know in advance specifically who or how many people would be at risk in the absence of required preventive measures. 32 Court of Appeals, 43. Öneryildiz, 101. 33 Öneryildiz, 98 (‘a decisive factor for the assessment of the circumstances of the case, namely that there was practical information available to the effect that the inhabitants of certain slum areas of Ümraniye were faced with a threat to their physical integrity …’), 100 (‘neither the reality nor the immediacy of the danger in question is in dispute’). For Article 8, some guidance can be found in Fadeyeva, 133 (‘there is no indication that the State designed or applied effective measures which would take into account the interests of the local population, affected by the pollution, and which would be capable of reducing the industrial pollution to acceptable levels’). 34 Öneryildiz, 101 (‘it was impossible for the administrative and municipal departments responsible … not to have known of the risks … or of the necessary preventive measures’) (emphasis added). 35 Court of Appeals, 42. 30

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Although some authors reproach the Court for minimizing the margin of appreciation, and consequently for neglecting the trias politica, this critique arguably rests on a misunderstanding of the concept. The margin of appreciation, at least in the European human rights context, functions as a principle of subsidiarity dealing with the division of power between the Council of Europe and the Member States, not with the division of power between the executive and judicial branches within a Member State.36

10.3.2 Climate Change: A Real Threat Resulting in Serious Risk Hence, the Court turns to the factual dangers posed by climate change, which it summarizes as follows:37 dangerous climate change is caused by man’s emission of greenhouse gases; manmade warming is already happening - up 1.1 °C from pre-industrial levels so far; if temperatures rise above 2 °C it will have a range of catastrophic consequences, both foreseeable and unforeseeable, costing hundreds of thousands of lives in Western Europe alone;38 both worldwide and Dutch emissions of CO2 continue to rise39 at speeds that are quickly moving toward the maximum ‘carbon budget’ of 450 parts of greenhouse gas per million. And perhaps the most crucial fact for the application of Articles 2 and 8 of the ECHR to this case: ‘The longer it takes to achieve the necessary emission reduction, the greater the total amount of emitted CO2 and the sooner the remaining carbon budget will have been used up.’40 These facts are not (convincingly) disputed by the government. Considering all this, the Court finds it appropriate to speak of ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life.’41 Thus, the Court considers that positive obligations of the State concerning ECHR rights might come into play in disputes about climate change. This is not entirely new. A number of other recent and ongoing climate change lawsuits invoke Articles 2 and 8 of the ECHR, for instance the so-called People’s Climate Case

36 True, the ECtHR sometimes acknowledges that the margin of appreciation might have effect on the national separation of powers, such as in the case Jane Nicklinson and Paul Lamb v United Kingdom, ECtHR, Nos. 2478/15 and 1787/15, 16 July 2015 – yet this was in relation to formal legislation rather than to policy, the latter of which is at issue in the Urgenda case. 37 Court of Appeals, 44. 38 Deaths caused by heatwaves and forest fires, for instance. 39 While Dutch CO2 emissions are still rising, total Dutch emissions of greenhouse gases are falling. See also Court of Appeals, 26. 40 Court of Appeals, 44, last bullet point. 41 Court of Appeals, 45.

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initiated last summer against the EU,42 and the case of the Klimaseniorinnen against the Swiss State.43 In the Swedish so-called Magnolia case, two Courts have already considered climate change related complaints in light of Articles 2 and 8 ECHR, however without finding any violations.44 Moreover, only two weeks after the appellate decision in the Urgenda case, the Human Rights Committee published its General Comment 36, holding that the right to life as enshrined in the International Covenant on Civil and Political Rights (ICCPR) also includes positive obligations for States to act against dangerous climate change.45 This General Comment could serve as an argument for the Dutch Supreme Court to uphold the Urgenda judgment. After all, the Netherlands has also ratified the ICCPR.

10.3.3 Preventing Infringement ‘as Far as Possible’ Whether the Dutch State did violate these Articles – and thus acted ‘unlawfully’ under the Dutch Civil Code — is the core issue of the case. Does it violate Articles 2 and 8 to reduce greenhouse gas emissions by less than 25% by 2020? Or does a less ambitious target remain within the range of precautionary measures that suffice to ‘prevent infringement as far as possible’?46 In tackling this question one can observe the Court joining the human rights standard with an approach to facts dictated by Dutch civil procedure. Before we can definitively analyse whether the Court has stayed close enough to established human rights discourse to refute the label ‘political’, therefore, we have to turn to the weighing of the facts.

42 Cf The People’s Climate Case claim at https://peoplesclimatecase.caneurope.org/wp-content/ uploads/2018/05/application-delivered-to-european-general-court-1.pdf. 43 Cf the Klimaseniorinnen claim at https://klimaseniorinnen.ch/wp-content/uploads/2017/05/ request_KlimaSeniorinnen.pdf. 44 Stockholm District Court (Stockholms Tingsrätt) 30 June 2017 Push Sverige, Fältbiologerna et al v Staten, Magnolia; and Stockholm Court of Appeal (Svea Hovrätt) 23 January 2018 Push Sverige, Fältbiologerna et al v Staten, Magnolia. The claimants chose not to go to the Supreme Court. 45 Human Rights Committee (2018) General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life. 46 Court of Appeals, 43.

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Law, Facts and Civil Procedure

In Dutch civil procedure, like in most private law systems, courts base their decisions on those facts agreed upon by the parties.47 If one party posits a fact and the other does not (convincingly) argue against it, this fact is deemed true for the purposes of the procedure. Urgenda and the State agree on a considerable number of facts: not only everything enumerated by the Court of Appeal in its paras 4–26, but also everything the District Court had observed in its paras 2.1–2.78: the already described scientific consensus on the dangers of climate change; the international and regional endeavours the Netherlands engaged in to tackle these dangers; and what the State has so far done on the national level. The parties agree on the end goal too: ultimately, all greenhouse gases should be phased out.48 The question is whether this implies that the Netherlands have to reduce already 25% in 2020, or whether a slower reduction path is also an option.49

10.4.1 25% as the Unassailable Minimum The Netherlands has ratified the 1992 United Framework Convention on Climate Change (UNFCCC) and, at the yearly conference of the parties (COP) to this convention, has consistently subscribed to the importance of tackling climate change. During the last 10 years, the COPs have declared that developed countries (‘Annex I countries’, in UNFCCC jargon) should all reduce emissions with 25– 40%, compared to 1990 levels, by the end of 2020.50 This is necessary for global warming not to exceed 2 °C compared to pre-industrial levels – a threshold that, if surpassed, poses serious dangers to mankind. It is important to note that, although the Court considers both non-legal, semi-legal and legal sources here, they are all presented as facts rather than as law. The Netherlands being party to the UNFCCC and having advocated at COPs for developed countries to reduce 25–40% by 2020, serve as the factual basis for the Court of Appeal to assume that the Netherlands, like all developed nations, has to reduce no less than 25%. Commentators again criticise the Court of Appeal for unclearly applying the ‘reflex effect’, albeit for different reasons than their critique of the District Court.51 Yet this is a misperception of the appellate court’s reasoning. Unlike the District Court, the Court of Appeals does not read the UNFCCC or the COP decisions into 47 48 49 50 51

Article 149 Dutch Code of Civil Procedure. Court of Appeals, 3.7 Court of Appeals, 3.7–3.8. Court of Appeals, 50. Besselink 2018.

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Articles 2 and 8 ECHR or into Dutch tort law as binding.52 The Netherlands’ ratification of the UNFCCC and its support of the COP statements, in the reasoning of the appellate court, has factual rather than legal significance. Although the outcome might have been the same had the Court of Appeal indeed interpreted human rights consistently with international climate law and policy expressions, procedurally the court is merely considering facts.53 This might also explain why the Court does not even seriously analyse which of these sources are legally binding and which of them are not. In fact, this is why it does not even discuss or mention the concept of ‘reflex effect’. In other words, it is not engaged in some lewd circumvention of the limitations of international norms’ domestic effect, it is simply applying Dutch civil procedure, as it is bound to do.

10.4.2 Negative Emissions The State has tried to challenge the assumption that the facts leave it no choice but to reduce 25% at minimum, for it only wants to reduce 20% in 2020 compared to 1990 levels.54 The State pointed to other, slower, reduction scenarios put forward by the scientific body of the UNFCCC: the international panel on climate change (IPCC). These scenarios include so-called negative emissions.55 That is, they assume that greenhouse gases may be distracted from the atmosphere in the future, which would mean emissions may now be kept at higher levels. Urgenda objected that effective negative emission techniques have not yet been invented, which the state acknowledged. Moreover, the IPCC designed the reduction paths the State invoked for the year 2030 rather than 2020.56 In light of these considerations, the Court of Appeal finds that the State has not convincingly challenged the 25% target for 2020 as necessary to prevent climate change. The Court notes that even with the scenario in which developed nations reduce 25–40% in 2020, it is more likely than not that global warming exceeds 2 °C. Moreover, the 2015 Paris Agreement57 shows that, in light of progressive scientific insight, there is now global consensus among states that a maximum of 1.5 rather

52 For a general treatment of the authority of COP decisions and other ‘post-treaty rules’, see Tim’s forthcoming monograph Authority and Legitimacy of Environmental Post-Treaty Rules (Hart Publishing 2019) and ‘Exercising or Evading International Public Authority? The Many Faces of Environmental Post-Treaty Rules’ (2016) 7 Goettingen Journal of International Law 303. 53 Facts of which it would be difficult to see how they could have been established differently in a public law proceeding. 54 Court of Appeals, 48. 55 Court of Appeals, 49. 56 Ibid. 57 This agreement was adopted in December 2015, a few months of the Urgenda decision on first instance, delivered in June 2015. The Court of Appeal however, considers all facts up until the day of the hearing held on 28 May 2018.

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than 2 °C of warming is to be preferred.58 The State knew about the 25–40% reduction goal for developed nations since 2007,59 so it cannot rely on the defence that there is little time left until 2020.60 Another fact supporting the 25% minimum, is that the Dutch State, until 2011, had set itself a 30% reduction goal for 2020. According to the responsible minister in 2009, this was necessary to stay at a credible trajectory to remain below 2 °C of global warming.61 The State did not present any climate science related arguments when it later lowered its reduction goal to 20%, nor has it motivated why this number would be ‘credible’ today. In light of these facts, the court cannot do anything else than conclude that 25% is the minimum for the State to live up to its duty of care regarding the protection of the right to life and private life.62 Although ‘full scientific certainty regarding the efficacy of the ordered reduction scenario is lacking’, the precautionary principle prevents the state from relying on this as an excuse for refraining to take further measures.63 The margin of appreciation of the state is limited to choosing the measures that it will take to achieve the target.64

10.4.3 Dismissal of the State’s Other Objections The Court proceeds to concisely dismiss the other objections of the State. The first objection is that the 25% order would prevent the Netherlands from effectively engaging in the European Trading Scheme (ETS) system, which only aims at a 20% reduction for certain sectors of industry.65 As observed by several academics, however, this EU system is one of minimum harmonisation, it does not prevent Member States from reducing more.66 The appellate court is therefore not convinced of this argument.67 The State also argued that the 25% minimum for the Netherlands would not make sense, as this would create space for other countries in the ETS to emit more – the so-called waterbed effect. However, the court notes, this argument mistakenly assumes that other nations would use all the allowances for emissions under the

58 59 60 61 62 63 64 65 66 67

Court of Appeals, 50. Court of Appeals, 51. Court of Appeals, 66. Court of Appeals, 52. Court of Appeals, 53. Court of Appeals, 63. The Court refers to the case of Tatar v. Romania of the ECrtHR. Court of Appeals, 74. This point was also made by Peeters 2014, 2016; Thurlings 2015. De Vries and Somsen 2016; Roy 2017. Court of Appeals, 54.

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ETS, which is clearly not the case, as inter alia Germany, the UK, Denmark and France reduce significantly more than the Netherlands.68 Also, the State failed to substantiate the risk of ‘carbon leakage’ - i.e. the risk that polluting industries would move to other countries than the Netherlands, continuing to pollute there. And to the extent that the State wanted to rely on a diminishing level playing field for industry, the Court says it fails to see why such would be contrary to any rule of law, and again points to the more stringent climate policies in other ETS States.69 The court notes that the Netherlands in the meantime has adopted a 49% reduction goal for 2050, so apparently the State itself is not truly restrained by the waterbed effect nor by carbon leakage.70 The State additionally argued that adaptation and mitigation measures are complementary, but the court notes that, although adaptation measures probably will be necessary to protect people in the Netherlands, these cannot prevent dangerous climate change.71 The Court is neither convinced of the State’s argument that the goal of 25% applies to developed nations as a whole rather than to the Dutch State.72 Furthermore, the State’s contention that the Netherlands contributes relatively little to global emissions and that there is not sufficient causality between Dutch emissions and global climate change fails: whereas for finding damages, causality needs to be proven, Urgenda’s claim merely aims at stopping unlawful behaviour.73 Hence, only unlawfulness and not causality to specific damages need to be proven under Dutch tort law.74 Moreover, if this reasoning of the State is followed, an effective remedy against a global problem like this would be lacking, says the Court: every State could then argue that they had no obligations until other nations start acting. This consequence cannot be accepted, the Court notes, because Urgenda cannot be required to bring all States in the world before the Dutch courts.75 Lastly, the Court devotes some considerations to the argument of the State, that an order to reduce 25% would violate the constitutional separation of powers, or trias politica. Since almost all the critique towards the Urgenda case is linked to this argument, we devote the next section to this intriguing issue.

68 69 70 71 72 73 74 75

Court of Appeals, Court of Appeals, Court of Appeals, Court of Appeals, Court of Appeals, Court of Appeals, Bleeker 2018b. Court of Appeals,

55–56. 57. 58. 59. 60. 61–64. 64.

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Separation of Powers

Entire dissertations could be written on the question whether the Urgenda decisions are too political to meet the threshold of legitimacy.76 Most critiques of the two judgments ultimately converge around this question, from many different perspectives. We will therefore not state a final word on this issue in the present case-note.77 We would however like to pay attention to three points: firstly, what the District Court and the appellate court respectively said on the separation of powers. Secondly, whether the appellate judgment has overstepped legal limits that, added up, amount to an infringement of the constitutional division of powers. Thirdly, whether the Courts should still have refrained from giving an order in this case, even when assuming the remainder of the reasoning would be legally correct, because of the political question doctrine.

10.5.1 The Courts’ Considerations The District Court in 2015 almost lectured on the separation of powers concept in the Netherlands.78 The core of its exposé is that there is a division and balance of powers rather than a sharp separation, and that courts are under an obligation to do no more and no less than to apply the law, including in cases against the government, while abstaining from policy considerations. Courts should be aware of the difference between deciding a two-party dispute on the one hand, and adopting policies for society at large on the other, and should be very restrained when its orders are likely to affect third parties. Yet the mere fact that a judicial decision has political consequences and may strike through legislative proposals, cannot inherently prevent such a decision. The court also points out that the judiciary is no less a democratic institution than parliament and the government. The power of the judiciary to review government acts against international and national law is based on democratically adopted legislation. The Court of Appeals is more concise, which can in part be explained by the different legal reasoning it adopted. As described above, rather than reading climate change obligations into a private legal duty of care (as the District Court did), the appellate court directly applied the fundamental rights to life and family life of the ECHR. Since such direct application of international (human rights) law is an

76 As testified by Laura’s Ph.D. thesis to be, covering various climate cases litigated in European private law. 77 For instance, we will not discuss the many threats and warnings of the practical effects of the judgment, such as the impossibility for the Court to deal with a failure to implement the judgment, or a decreased willingness of the State to conclude or support international agreements and declarations. 78 District Court 4.94–4.102.

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accepted avenue for courts to legitimize interference with other branches of government, lengthy explanations on the doctrine of the trias politica are less needed. The Court of Appeal first dismisses the argument that it would order the State to adopt legislation, something which Dutch courts may not do.79 Most probably parliamentary legislation is not necessary to achieve the 25% target, it says, and even insofar as such legislation would be necessary, the Court refrains from dictating its substance. Therefore, in the Court’s view, an order to adopt the reduction target of 25% is not an order to legislate; it does not clash with the legislature’s prerogative to law-making. The Court of Appeals then devotes a mere three sentences to the issue of separation of powers specifically: This defence fails. The Court is under an obligation to directly apply provisions with direct effect of treaties to which the Netherlands is a party, including Articles 2 and 8 ECHR. After all, such provisions form part of the Dutch legal order and even take precedence over Dutch laws that deviate from them.80

In other words, direct application of international law is the Court’s constitutional duty. This may come across as an overly simplistic and even somewhat arrogant disdain for the public’s concern for this issue. Critics scold the Court for failing to acknowledge and motivate the unprecedented scale of its decision.81 The Court however does state: Incidentally, the Court acknowledges that, especially in our industrialised society, measures to reduce CO2 emissions are drastic and require financial and other sacrifices but there is also much at stake: the risk of irreversible changes to the worldwide ecosystems and liveability of our planet.82

The Court recognizes the unusual impact of its decision, but simultaneously it shifts the perspective of the case from legislative decision-making to that of the duty of any court to deliver an effective remedy when individual rights are breached.83 Opposite the question whether it is for the Court to push the government towards action, it places the question whether it is lawful for the government to adopt life-threatening policy without convincing reasons.84 We will return to this balancing act while discussing the political question doctrine below.

79

This was decided by the Supreme Court in the Waterpakt case. Supreme Court of the Netherlands (Hoge Raad) 21 March 2003 Waterpakt v State of the Netherlands ECLI:NL: HR:2003:AE8462. 80 Court of Appeals, 69. 81 G Boogaard, Laten we de democratie niet onder curatele stellen, De Volkskrant, 11 October 2018, https://www.volkskrant.nl/columns-opinie/latenwe-de-democratie-niet-onder-curatelestellen*b53f718a/, accessed 23 January 2019. 82 Court of Appeals, 67. 83 Cf Articles 6 and 13 ECHR, Article 47 CFREU. 84 Cf also van den Berg 2017.

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10.5.2 Did the Court Overstep the Separation of Powers by Misinterpreting the Law? The Court’s direct application of human rights as such is not controversial. But, of course, this is not what the State and its supporters dispute. It is not the application but the interpretation of the ECHR articles that allegedly intrudes the territory of the government. The Court would therefore have been wiser to repeat more clearly why it thinks its interpretation of the ECHR Articles is mandated, and as such deflects separation of powers objections. Yet, as our assessment so far suggests, it is difficult to pinpoint where the Court has made an obvious legal error. This is certainly so in regard to civil procedure, but also its interpretation of Article 2 ECHR.85 The Dutch Supreme Court might refer the case back to another Court of Appeals for better motivation, but is highly unlikely to overturn the dictum that human rights necessitate protection by the state from dangerous climate change. Since the Supreme Court deals only with questions of law, not with questions of fact, we also do not see how it could rule differently on the establishment of the factual minimum of 25% necessary to prevent climate change dangers. The charge that Articles 2 and 8 have never been applied to an environmental issue of the scope and scale of climate change,86 is not convincing either. The law should apply to comparable situations, be they smaller or larger in scale.87 It is hard to understand why the number of people endangered should have an impact on the applicability of international human rights law. On the contrary, with a larger scale threat, one would expect more protection rather than less. Again, the Court could and should have motivated this in more detail. Another objection attacks the Court’s preference for one reduction scenario over the other; it should rather have recognized that all these scenarios can be equally effective – making a preference for any of them subject to political choice.88 Yet as the Court repeatedly points out, the equal effectiveness of all those scenarios has not sufficiently been substantiated by the State.89 In this context, it is good to note that the IPCC is a scientific body delivering descriptive rather than prescriptive models. Its models including negative emissions

85 More doubt remains with regard to the Court’s treatment of Article 8 ECHR, implying that it contains the same standard as Article 2. 86 W Hommes, Het Hof bedrijft politiek met de Urgenda-uitspraak, De Volkskrant, 16 October 2018, https://www.volkskrant.nl/columns-opinie/het-hof-bedrijft-politiek-met-urgenda-uitspraak* b528c988/, accessed 23 January 2019. 87 Cf C Eckes, De Urgenda uitspraak doet júíst recht aan het EVRM, EU Explainer, 27 October 2018, http://euexplainer.nl/?p=520, accessed 24 January 2019. 88 W Hommes, Het Hof bedrijft politiek met de Urgenda-uitspraak, De Volkskrant, 16 October 2018, https://www.volkskrant.nl/columns-opinie/het-hof-bedrijft-politiek-met-urgenda-uitspraak* b528c988/, accessed 23 January 2019. 89 See Sect. 10.3.2.

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do not equal an advice to go for negative emissions. They rather show that if we let emissions rise above a certain concentration, the only way to still mitigate sufficiently is to rely on (at present not invented) negative emissions techniques. The worry that judges are unable to weigh scientific climate evidence falls flat too.90 Judges rely on expert evidence all the time, this time on IPCC reports encompassing all available climate change science, reports also relied upon by the State.91

10.5.3 Should Courts Sometimes Refrain from Delivering Legally Correct Decisions? By now it must be no longer a secret to the reader that we are of the opinion that the Court’s application of the law is correct. Yet critics seem to suggest that even when otherwise legally correct, there is nevertheless a legal doctrine or principle according to which the Court must refrain from reaching judgment, or at least from issuing an order. Should it not have stopped at merely finding the State to be in violation of the law, without ordering it to remedy that violation?92 Or should it have even refused to take the case at all? In other words, the separation of powers argument would then be a separate legal principle that may be violated even when a Court otherwise neatly applies the law: the political question doctrine. In its United States version, this doctrine dictates courts to refrain from adjudicating certain issues that are within the exclusive purview of the executive. Dutch private law also recognizes some form of the doctrine, even using the English term for it. But it does not figure prominently in the Dutch case law and is interpreted much more narrowly than its US counterpart. During oral argument, the State indeed argued that this case ‘goes to the heart of the political question doctrine.’93 The Court of Appeals does however not engage directly with the doctrine in so many words, nor does it discuss the criteria for its application. The Dutch version of the doctrine has however been reiterated in a recent decision of the Amsterdam District Court, in a case concerning the consequences of the impending Brexit for the EU citizenship of UK nationals.94 That judgment provides three criteria: (1) Does the constitution attribute the competence to deal with a certain task or subject matter to one particular branch of government other

90

Enneking and De Jong 2014; De Jong 2015; Roy and Woerdman 2016. Cf Eddy Bauw in De Jong 2018. 92 As argued by Boogaard 2016. 93 Pleadings of the State, 1.18, 3.12; Court of Appeals, 30. 94 District Court of Amsterdam, X c.s. v Staat der Nederlanden en Gemeente Amsterdam (Citizenship after Brexit), 7 February 2018, ECLI:NL:RBAMS:2018:605. 91

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than the judiciary?95 (2) Do sufficiently clear and objective criteria exist to arrive at a legal decision? (3) Would a judicial decision get in the way of the possibility for another competent branch of government to arrive at a political solution of the matter? The mere fact that the procedure concerns sensitive political issues is not conclusive, and the threshold for the criteria is not easily met.96 In the Brexit decision, the Amsterdam court reasoned that the claimants sought judicial protection of their fundamental rights, which - echoing the District Court in the Urgenda case - is precisely the task the constitution charges courts with. The circumstance that the future existence of these rights is currently subject to political negotiations does not alter this.97 Postponing a decision about the protection of the fundamental rights of these persons until after political negotiations conclude could cause irreparable harm.98 Applying these criteria to the Urgenda situation, the first one - division of competences - is fulfilled because fundamental rights protection is the primacy of the courts, and most likely no-one would argue that climate change as a subject matter is the exclusive provenance of the executive branch in the way that the military and foreign policy are. The second hinges on one’s acceptance of the Court of Appeals’ previously discussed human rights reasoning.99 As to the third criterion - disturbing the political process - we would observe that, when it comes to reductions per 2020, there is not really a political decision-making process ongoing anymore. The State was no longer pondering which course of action to take until then (although the Urgenda judgments have of course changed this). The State had already decided which action to take until then. The current negotiations, following the world-famous polder model,100 are all aimed at reductions per 2030 and are to be implemented only after 2020. A court decision about reductions per 2020 therefore does not intervene in an ongoing political process, but adjudicates the outcomes of a political process that has already concluded. Apart from that, the third element is, in essence, a balancing act. It ultimately poses the question whether there are situations in which fundamental rights protection should be trumped by the interest in an unencumbered political decision-making process. This balancing act, while the Court does not explicitly tackle it in terms of the political question doctrine, can be found all over the judgment.

95

This concerns topics such as defense policy or foreign policy where the Court cannot oversee all interests and information. For an example, see Supreme Court of the Netherlands (Hoge Raad) 29 November 2002 Danikovic c.s. v State of the Netherlands. 96 Citizenship after Brexit, 5.3, 5.4. 97 Citizenship after Brexit, 5.8, 5.9. 98 Citizenship after Brexit, 5.7. 99 See Sect. 10.2. 100 A Dutch style of decision-making aimed at consensus among representatives of different parts of society such as unions, employers’ organisations and NGOs.

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The Court’s concluding considerations are a case in point. The indications that the Dutch policy until 2020 is insufficient to prevent dangerous climate change, are simply too overwhelming for the court to ignore. It cannot leave options on the table that would create an unacceptable increase in this risk.101 At the same time, it leaves the State full freedom which measures to choose in achieving the 25% reduction. And because of new methods of calculation, the State is in fact only 2% behind the target, which makes the policy changes that the Court mandates relatively small.102 Naturally, balancing two interests against each other, as is quite common in human rights protection, remains subject to discussion. In all ‘hard’ cases, it is possible to find arguments to let the balance swing either way. We believe that the Court has convincingly supported its decision to swing the balance towards safeguarding the right of Dutch citizens to effective protection against climate change.

References Besselink L (2018) De constitutioneel meer legitieme manier van toetsing: Urgenda voor het Gerechtshof Den Haag. Nederlands Juristenblad NJB 93(41):3078–3082 Bleeker T (2018a) Voldoende belang in collectieve acties: Drie maal artikel 3:303 BW. Nederlands Tijdschrift Voor Burgerlijk Recht NBTR 20(5):139–151 Bleeker T (2018b) Aansprakelijkheid voor klimaatschade: een driekoppige draak. Nederlands Tijdschrift Voor Burgerlijk Recht NBTR 1:4–11 Boogaard G (2016) Urgenda en de rol van de rechter. Over de ondraaglijke leegheid van de Trias Politica. Ars Aequi 65(1):26–33 Colombo E (2017) The Quest for Cosmopolitan Justice in Climate Matters. Nord Miljörättslig Tidskrift 2:25–39 De Jong E (2015) Urgenda: rechterlijke risicoregulering als alternatief voor risicoregulering door de overheid? Nederlands Tijdschrift Voor Burgerlijk Recht 319–326 De Jong E (2018) Rechterlijke risicoregulering en het EVRM: over drempels om de civiele rechter als risicoreguleerder te laten optreden. NJCM Bulletin 43:207–230 De Vries A, Somsen H (2016) De Urgenda-uitspraak: Geen schending van EU-recht. Aansprakelijkheid Verzekering En Schade (4):149–151 Enneking L, De Jong E (2014) Regulering van onzekere risico’s via public interest litigation? Nederlands Juristenblad NJB 23, 1542–1551 Gerards JH, Fleuren JWA (2013) Implementatie van het EVRM en de uitspraken van het EHRM in de nationale rechtspraak: Een rechtsvergelijkend onderzoek. Radboud Universiteit Nijmegen Peeters M (2016) Urgenda Foundation and 886 Individuals v. The State of the Netherlands: The Dilemma of More Ambitious Greenhouse Gas Reduction Action by EU Member States.

101 102

Court of Appeals, 72. Court of Appeals, 73.

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Review of European Comparative International Environmental Law 25(1):123–129. https://doi. org/10.1111/reel.12146 Peeters MGWM (2014) Europees klimaatrecht en nationale beleidsruimte. Nederlands Juristenblad NJB 2014(41):2918–2925 Roy S (2017) Distributive Choices in Urgenda and EU Climate Law, SSRN Paper. https://papers. ssrn.com/abstract=3064346. Accessed 23 January 2019 Roy S, Woerdman E (2016) Situating Urgenda v the Netherlands within comparative climate change litigation. Journal of Energy and Natural Resources Law 34(2):165–189. https://doi. org/10.1080/02646811.2016.1132825 Thurlings TJ (2015) The Dutch Climate Case - Some Legal Considerations, SSRN Paper. https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2696343. Accessed 23 January 2019. https://doi. org/10.2139/ssrn.2696343 van den Berg K (2017) De rechter en de politiek: een drieluik, 1st edn. In: Tjeenk Willink HD, van den Berg JM, Jensma F (eds) Rechtspraak en politiek: hoe leven die samen in het ene huis, dat democratische rechtsstaat heet? Boom Juridische Uitgevers, The Hague

Chapter 11

Pursuing Justice for MH17: The Role of the Netherlands Marieke de Hoon

Contents 11.1 Introduction...................................................................................................................... 246 11.2 Developments: 2014–2018.............................................................................................. 247 11.3 The Legal Case Against Russia ...................................................................................... 251 11.3.1 Involvement in Shooting Down MH17 ............................................................. 252 11.3.2 Duty to Conduct Effective Investigations .......................................................... 258 11.3.3 Bringing a Case Against Russia ........................................................................ 260 11.4 The Legal Case Against Ukraine .................................................................................... 265 11.5 The Dutch Pursuit for Justice ......................................................................................... 268 References .................................................................................................................................. 270

Abstract On 17 July 2014, Malaysia Airlines Flight MH17 that set off to fly from Amsterdam to Kuala Lumpur was shot down over Eastern Ukraine, where an armed conflict took place between Ukrainian armed forces and separatists supported by Russia. This chapter discusses the legal developments around the MH17 crash up to 2018 and what actions the Netherlands has taken and is considering in their pursuit of justice for MH17. In 2018, the Netherlands announced that it holds Russia accountable for its involvement in downing MH17, that it invited Russia to engage The analysis in this chapter builds on the research conducted for PILPG’s white paper ‘Legal Remedies for Downing Flight MH17’, produced at the request of the Dutch parliament. Many contributed to this research and should be duly accredited: in particular, Margaux Reynaud, Sander Couch, Robin de Ruiter, Julie Fraser, Brianne McGonigle Leyh, Jolien Quispel, Tjebbe Geldof, Rok Jamnik, Ilina Georgieva, Ksenia Kutyreva, Andrew Merrylees, Adina Nistor, Maite van Rinsum, Thomas Verstege, Mike Videler, and Nina Bang Jensen. M. de Hoon (&) International Law and International Criminal Law, Vrije Universiteit Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] M. de Hoon Public International Law & Policy Group, Amsterdam, The Netherlands © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_11

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in negotiations, and that legal action may follow. Moreover, the Netherlands declared that it is not considering similar action against Ukraine for failing to adequately communicate about the security risks in their airspace unless new evidence would appear. This chapter discusses what those announcements mean, what legal arguments exist against Russia and Ukraine, and what deliberations are relevant for the Netherlands in their consideration whether or not to pursue the judicial path in finding justice for the MH17 victims.







Keywords MH17 State responsibility Public international law law Law and politics Accountability




11.1





Civil aviation

Introduction

On 25 May 2018, the Netherlands and Australia announced that they hold Russia accountable for its involvement in downing Flight MH17.1 This Malaysia Airlines aircraft was shot down on 17 July 2014 when it flew over Eastern Ukraine, taking the lives of all 298 people aboard. Almost five years later, no person has been prosecuted and no state has taken responsibility. Nevertheless, investigations show that both Russia and Ukraine may have violated their obligations under international law, and that the individuals that were involved in launching the BUK missile that brought down MH17 may have committed criminal acts in doing so and seem to have fled into Russian territory. This chapter in the Dutch practice section of the 2018 Netherlands Yearbook of International Law discusses the legal developments around the MH17 crash up to 2018 and what actions the Netherlands has taken and is considering in their pursuit for justice for MH17. In the first years after the crash, the focus was mostly on understanding the technical circumstances of the crash and on deciding how to prosecute the perpetrators if the investigations would identify individual perpetrators and evidence against them. Towards and during 2018, state responsibility has increasingly become part of the discussion on legal accountability for MH17. This chapter focuses on the state responsibility. Specifically, it analyses the legal responsibilities of Russia and Ukraine in their respective roles with regard to the circumstances in which MH17 occurred. The legal questions with regard to the accountability of states concern the involvement of Russia with those that launched the missile that brought down MH17 and Ukraine’s failure to close its airspace and as such prevent the fatal crash from happening. With regard to Russia, the Netherlands and Australia explained that they hold Russia accountable for providing the BUK missile that shot down Flight MH17 and thereby for its involvement in the death of the MH17 passengers

1

Dutch Minister of Foreign Affairs, Vliegramp MH17, kst-33997-117, 25 May 2018, available at https://zoek.officielebekendmakingen.nl/kst-33997-117.html.

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and crew.2 Shortly after, on 5 June 2018, the Netherlands declared that they will not proceed likewise against Ukraine for failing to close its airspace because they regard the evidence against Ukraine not legally sufficient for a successful claim.3 This chapter discusses both decisions, the legal arguments the Netherlands could bring against Russia and Ukraine, and the considerations involved in deciding whether or not to pursue legal action against them in an international court of law or institution. The next section considers the developments of the investigations and legal proceedings so far. The third section contains the main analysis of this text and explores what the announcement by the Netherlands and Australia to hold Russia accountable entails, what legal arguments they could bring against Russia and what legal forums would have competence to adjudicate on Russia’s accountability. The fourth section discusses the legal obligations that Ukraine may have violated with respect to communicating about the safety in their airspace. The final section provides some concluding observations on the considerations involved in deciding whether or not to pursue legal proceedings. The main conclusion that follows from this chapter is that while there are strong legal arguments against both Russia and Ukraine, pursuing justice in a case where there is as much (geo)politics involved as is in the situation of MH17 is a long and frustrating road to take that does not likely lead to the justice people hope for. Nevertheless, there are also convincing reasons why it may still be better to take the difficult legal route: in pursuit of truth, acknowledgement and accountability, in a world whose skies are increasingly populated by civil aircrafts as well as endangered by lethal missiles. In any event, in order to make an informed decision on whether or not to pursue legal action, it is important to assess the likelihood that any such legal action could be successful and satisfactory. To that end, this chapter examines what international civil aviation law, human rights law, international humanitarian law and general public international law provide with regard to the justice for the MH17 victims, and what options the Netherlands as the state that lost most lives has in that respect.

11.2

Developments: 2014–2018

On 17 July 2014, Malaysia Airlines Flight MH17 that set off to fly from Amsterdam to Kuala Lumpur was shot down over Eastern Ukraine, where an armed conflict took place between Ukrainian armed forces and separatists supported by Russia. On board of the Boeing 777 were 283 passengers and 15 crew members who all lost 2

Dutch Minister of Foreign Affairs, Vliegramp MH17, kst-33997-17, 25 May 2018, available at https://zoek.officielebekendmakingen.nl/kst-33997-117.html. 3 Dutch Minister of Foreign Affairs, Mogelijk aandeel van Oekraine in het neerhalen van vlucht MH17, Min-BuZa.2018.1293-25, 5 June 2018, available at https://app.1848.nl/static/pdf/a3/86/ a3869a63f108aa0a512a9638c351d81cd04c50ec.pdf.

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their lives. The flight was code-sharing with KLM flight KL4103 and the majority of passengers were Dutch nationals. In the aftermath of the MH17 crash, no one claimed responsibility, with each side blaming the other. With Ukrainian consent, the Dutch government took the initiative to investigate the crash and repatriate the victims and their belongings. The Dutch Safety Board (DSB) investigated the technical circumstances of the crash itself and concluded that the plane was shot down from the rebel-held territory of the Donetsk region in Ukraine by a Buk surface-to-air missile system.4 To investigate the criminal responsibilities for downing MH17, the judicial and police forces of the Netherlands, Australia, Belgium, Malaysia and Ukraine set up the Joint Investigation Team (JIT), supported by Germany, the USA, Italy, Canada, New Zealand, Indonesia and the Philippines. The JIT’s objective is ‘to establish the facts, identify those responsible for the crash and to collect evidence that can be used in court.’5 On 28 September 2016, the JIT announced in a press conference that they had acquired sufficient evidence to uphold in court that the weapon system was a BUK missile of Russian origin, that it was transported over Russian territory and into Ukraine days before MH17 was shot down, that this weapon was transported back into Russian territory days after, and that the location from where this missile was launched was under control of pro-Russian separatists at the time of the crash. The JIT moreover announced that they had identified around a hundred individuals that were involved in one way or another in what happened to MH17 but that they were not ready to declare anyone as formal suspect yet.6 After a long silence, the JIT held another press conference on 24 May 2018. There, the JIT’s chief public prosecutor Fred Westerbeke stated with regard to identifying the involvement of individuals that ‘big steps have been made. By now, the role of a large number of them is much clearer.’ He moreover explained that they will not make anything specific known on the identity of those individuals or the amount of evidence against them because ‘[i]t can damage the investigation and the ultimate legal procedure if we make it clear to those responsible for this event – and those further involved – how much we know exactly.’7 In that press conference on 24 May 2018, the JIT moreover declared that it had concluded that the BUK TELAR with which Flight MH17 was downed originates from the 53rd Anti

The Dutch Safety Board Report, The crash of Malaysia Airlines flight MH17, 22 October 2015, available at http://www.onderzoeksraad.nl/en/onderzoek/2049/investigation-crash-mh17-17-july2014. 5 As described on the website of the Dutch prosecutorial authorities (Openbaar Ministerie), available at https://www.om.nl/onderwerpen/mh17-crash/. 6 Dutch prosecutorial authorities (Openbaar Ministerie), JIT: MH17 neergeschoten door BUK-raket vanaf landbouwveld bij Pervomaiskyi, Openbaar Ministerie website, 28 September 2016, available at https://www.om.nl/onderwerpen/mh17-vliegramp/@96067/jit-mh17/. 7 Dutch Police, Update in criminal investigation MH17 disaster, Dutch police website, 24 May 2018, available at https://www.politie.nl/en/news/2018/mei/24/update-in-criminal-investigationmh17disaster.html. 4

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Aircraft Missile Brigade of the Russian army, and that it is still investigating whether the extent to which the 53rd Brigade (and thus the Russian army) was actively involved in the downing of Flight MH17.8 While Russia is obliged to share any relevant information under UN Security Council Resolution 21669 as well as the 1971 Convention for the Suppression of Acts Against the Safety of Civilian Aviation (Montreal Convention), of which Russia is a state party,10 the JIT declared that Russia refuses to provide information on whether the 53rd Brigade deployed a BUK in Eastern Ukraine.11 Russia conducts its own investigation into the matter, which has led to different conclusions than those of the DSB with regard to the type of missile used and the direction from which it was fired, and which points to Ukrainian forces as those that brought MH17 down.12 However, Russia has changed its version of what happened with MH17 various times, undermining the credibility of their investigations.13 Various other actors have also conducted separate investigations. For example, a team of investigative journalists called Bellingcat produced a number of research reports that identify individuals involved in downing MH17 or transporting the BUK missile towards or from the launch area, including high-ranked Russian military officials, and various other reports to identify the cause and those responsible for the MH17 crash.14 On 25 May 2018, the day after the press conference by the JIT, the Netherlands and Australia announced that they believe they have sufficient evidence to hold Russia accountable for providing the BUK missile that shot down Flight MH17 and thereby for its involvement in the death of the MH17 passengers and crew. The Dutch Minister of Foreign Affairs explained that they demand that Russia recognizes its accountability, cooperates with the criminal investigations and prosecutions of perpetrators, and provides compensation to the victims’ relatives. To that

8 Dutch Police, Update in criminal investigation MH17 disaster, Dutch police website, 24 May 2018, available at https://www.politie.nl/en/news/2018/mei/24/update-in-criminal-investigationmh17disaster.html. 9 United Nations Security Council, Resolution 2166 (2014), S/RES2166 (2014), 21 July 2014. 10 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), 974 U.N.T.S. 178 (‘Montreal Convention’), available at https://treaties.un.org/doc/Publication/ UNTS/Volume%20974/volume-974-I-14118-english.pdf, Article 13. 11 Dutch Police, Update in criminal investigation MH17 disaster, Dutch police website, 24 May 2018, available at https://www.politie.nl/en/news/2018/mei/24/update-in-criminal-investigationmh17disaster.html. 12 Russian Ministry of Defense, Briefing on newly discovered evidence pertaining to the crash of the MH17 flight, 17 September 2018, available at https://www.youtube.com/watch?v= zAFZbjyoqok&feature=youtu.be. 13 See for a critical review of Russia’s claims, BBC News, Flight MH17: Russia and its changing story, 16 October 2015, https://www.bbc.com/news/world-europe-34538142, accessed 30 January 2019; and Bellingcat, The Kremlin’s Shifting, Self-Contradicting Narratives on MH17, 5 January 2018, https://www.bellingcat.com/news/uk-and-europe/2018/01/05/kremlins-shifting-self-contradictingnarratives-mh17/, accessed 30 January 2019. 14 For their reports on MH17, see the Bellingcat website at https://www.bellingcat.com/?s=mh17.

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end, they invited Russia to enter into negotiations to reach agreement.15 Meanwhile, the Dutch continued to work on diplomatic support from other powerful states. This led, for example, on 15 July 2018 to a G7 statement, in which the foreign affairs ministers of the G7 countries announced: ‘We are united in our support of Australia and the Netherlands as they call on Russia to account for its role in this incident and to cooperate fully with the process to establish the truth and achieve justice for the victims of MH17 and their next of kin.’16 On 20 December 2018, the Dutch Minister of Foreign Affairs declared that diplomatic contacts with Russia have not led to a commencement of negotiations on MH17, and that, while they remain open to enter in negotiations with Russia, the Dutch government will deliberate on follow up steps, which he explicated includes the option of requesting an opinion of an international court or organisation.17 Previous civil aviation disasters where states have (allegedly) been involved in the crash usually did not lead to judicial proceedings but negotiated agreements instead.18 Often, these settlements lack a formal admission of responsibility but nevertheless include payment of compensation for victims.19 However, due to Russia’s attitude towards the JIT so far, the MH17 victims do not have high hopes that the negotiations will lead to an agreeable result. If no agreement is reached, the next step may entail judicial proceedings against the Russian state. Holding a state accountable for violating its obligations under international law is a different and separate kind of legal procedure than the criminal prosecution of individuals: the former relates to the obligations states have vis-à-vis other states and individuals under international law and human rights law; the latter concerns the obligations that individuals have to refrain from conducting criminal acts. The two legal routes can be pursued in parallel and in principle do not affect one another. However, proven facts and legal responsibilities by one court may well be regarded authoritative by another judicial bench or institution, although they are not bound by such decisions and are responsible for coming to their own independent finding. By the end of 2018, various types of legal proceedings are in initial stages: the Netherlands is trying to identify individual perpetrators and prepare criminal

15 Transcript of the press conference of Prime Minister Rutte on 25 May 2018, available at https:// www.rijksoverheid.nl/documenten/mediateksten/2018/05/25/letterlijke-tekst-persconferentie-naministerraad-25-mei-2018; and video clips at https://nos.nl/artikel/2233461-kabinet-ruslandaansprakelijk-voor-mh17-geen-enkele-twijfel-aan-jit.html. 16 The Guardian, Russia must ‘account for role’ in shooting down MH17, says G7, 16 July 2018, https://www.theguardian.com/world/2018/jul/16/russia-must-account-for-role-in-shooting-downmh17-says-g7, accessed 30 January 2019. 17 Dutch Minister of Foreign Affairs, Vliegramp MH17, kst 33997-129, 20 December 2018, available at https://zoek.officielebekendmakingen.nl/kst-33997-129.html. 18 See in particular pp. 15–25 of De Hoon et al. 2016. 19 Ibid.

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prosecutions against them within the domestic Dutch judicial system,20 which has led to the first indictments against four suspects in June 2019 whose trials will start in March 2020, several victims’ relatives have commenced a number of legal proceedings against Russia and Ukraine,21 and, as discussed, the Netherlands and Australia have announced that they hold Russia accountable for violating international law and invited Russia to enter into negotiations. Since their joint announcement to hold Russia accountable, the Netherlands and Australia have held several meetings on MH17 in their embassies and other diplomatic settings, and early 2019 saw the first meeting to negotiate. The last governmental communication on the matter in 2018 declared that requesting an opinion from a court or institution may be a next step.22 The following section serves to explain what such a next step would entail by discussing the core legal obligations that the Netherlands and Australia (and other involved states) may argue that Russia would have violated, where they can bring these claims, and what evidentiary standards they require.23

11.3

The Legal Case Against Russia

On 25 May 2018, the Netherlands and Australia announced that they hold Russia accountable for providing the BUK missile that shot down Flight MH17 and thereby for its involvement in the death of the MH17 passengers and crew. The Netherlands and Australia demand that Russia (i) recognizes its accountability, (ii) cooperates with the criminal investigations and prosecutions of perpetrators, and (iii) provides reparations to the victims’ relatives, such as recognition and monetary compensation. To that end, they invited Russia to enter into negotiations to reach

20 Netherlands Minister of Security and Justice and Minister of Foreign Affairs, Vliegramp MH17, kst-33997-98 ISSN 0921-7371, 5 July 2017, available at https://www.tweedekamer.nl/ debat_en_vergadering/commissievergaderingen/details?id=2017A02349; see also government press statement at https://www.rijksoverheid.nl/actueel/nieuws/2017/07/05/jit-landen-kiezennederland-voor-vervolging-neerhalen-mh17. 21 On 23 November 2018, 95 victims’ relatives announced that they will file charges against Russia at the European Court of Human Rights, see for instance RTL Nieuws, Nabestaanden MH17-ramp klagen Rusland aan bij Europees Hof, 23 November 2018, https://www.rtlnieuws.nl/nieuws/ nederland/artikel/4494966/nabestaanden-mh17-ramp-klagen-over-rusland-bij-europees-hof; moreover, in total, four applications have been submitted against Ukraine and registered under numbers 73776/14 (Ioppa v Ukraine), and, 973/15, 4407/15 and 4412/15, as noted by the Court in http:// hudoc.echr.coe.int/eng#{“itemid”:[“001-165535”]}. 22 Dutch Minister of Foreign Affairs, Vliegramp MH17, kst 33997-129, 20 December 2018, available at https://zoek.officielebekendmakingen.nl/kst-33997-129.html. 23 The analysis on the legal arguments against Russia and Ukraine builds on my earlier article, De Hoon 2017.

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agreement.24 These negotiations are not only relevant for creating a formal space in which agreement can be sought, but also for possible future legal steps: legal proceedings often require that parties first attempt to resolve their dispute through negotiation. If the Netherlands and Australia will seek a judgment from the International Court of Justice (ICJ), negotiations are required before such a claim can be found admissible. If, alternatively, the Netherlands would file a complaint at the European Court of Human Rights (ECtHR), failed negotiations may be found relevant in the determination that domestic remedies are exhausted, which is procedurally required before a case is admissible. In their statement, the Netherlands and Australia did not specify the legal obligations that they claim Russia violated, most likely to keep this open for further qualification pending the outcome of the ongoing investigations. From what is public and likely, the legal obligations that Russia may have violated can be divided in two categories: (i) involvement in shooting down MH17 or failing to prevent it; and (ii) failing to investigate effectively and to cooperate with JIT investigations.

11.3.1 Involvement in Shooting Down MH17 Under international law, states hold obligations vis-à-vis each other, such as those agreed on in treaties or have become binding customary international law norms. If they violate their international legal obligations, states can hold the violating state responsible. The doctrine of state responsibility provides that a state commits an internationally wrongful act against another state if (i) the state violated an international obligation, (ii) the conduct in question is attributable to the state, and (iii) there are no circumstances precluding the conduct’s wrongfulness.25 The Netherlands may rely on various sources of international law to hold Russia accountable if it can prove that Russia was involved in downing MH17, including civil aviation law, the laws of armed conflict, international human rights law, and specific treaties that address particular issues such as the financing of terrorism (in which ‘terrorism’ is understood to include a wide range of crimes including the downing of aircraft). For civil aviation, states, including Russia and the Netherlands, have agreed on a number of treaties that regulate the safety of civil aviation and the responsibilities of states therein. The oldest and most general of these is the 1944 Convention on International Civil Aviation (Chicago

24 Transcript of the press conference of Prime Minister Rutte on 25 May 2018, available at https:// www.rijksoverheid.nl/documenten/mediateksten/2018/05/25/letterlijke-tekst-persconferentie-naministerraad-25-mei-2018; and video clips at https://nos.nl/artikel/2233461-kabinet-ruslandaansprakelijk-voor-mh17-geen-enkele-twijfel-aan-jit.html. 25 Articles of Responsibility of States for Internationally Wrongful Acts, annex to General Assembly Resolution 56/83 of 12 December 2001, corrected by document A/56/49(Vol.1)/Corr.4 (‘Articles of State Responsibility’), available at http://legal.un.org/ilc/texts/instruments/english/ draft%20articles/9_6_2001.pdf.

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Convention).26 The Chicago Convention is supplemented and clarified by a number of Annexes that contain binding and non-binding provisions. The Chicago Convention addresses the coordination of flight paths, the provision of air traffic control services, obligations that states and aircraft carriers have vis-à-vis each other and passengers, and many other aspects that manage and safeguard civil aviation throughout the world. In addition, the Montreal Convention was adopted in response to various hijackings that occurred in the years before. The Montreal Convention deals mostly with acts of individuals against the safety of civil aviation and with the obligations of states to prevent and respond to these acts. Jointly, the Chicago and Montreal Conventions establish obligations on states to provide for the safety of civil flight and to refrain from using weapons against civil aircraft in flight. Specifically, Article 3bis of the Chicago Convention provides that ‘the Contracting States recognize that every State must refrain from resorting to the use of weapons against civilian aircraft in flight.’ Article 3bis was adopted in 1984 and came into force in 1998 in response to the shooting down of Korean Air Flight 007 over Soviet airspace. It is largely considered to be a reflection of customary international law.27 In the situation of MH17, the question is not whether a weapon was used against civilian aircraft, but whether the use of this weapon is attributable to Russia. According to Russia, it is not. They claim various scenarios, each exculpating Russia’s involvement, and usually pointing to Ukraine’s responsibility. The Netherlands and Australia rely on the evidence that the JIT has collected, which concludes that the BUK missile that downed MH17 belonged to the Russian military. This would entail that Russia must have known whether its own military used the BUK missile or whether it was provided to another party. As is discussed further in the next sub-section, not conducting an effective investigation on the basis of such information after a lethal incident is also a violation of civil aviation law. Whether or not Russia was involved in shooting down MH17 to the extent of violating Article 3bis of the Chicago Convention depends on the identity of those that were involved in the decision to launch the BUK missile, and in particular on their relationship to the Russian state. In accordance with the Articles of State Responsibility, their conduct is attributable to Russia if they were Russian military (or other Russian officials)28 or if they were non-state actors who were acting on the instructions of Russia or under their direction or control.29 Under general international law, for conduct of non-state actors to be attributed to a state, merely providing assistance such as weapons is not sufficient. The state needs to have had

26

Convention on International Civil Aviation (1944) 15 U.N.T.S. 295 (1994) (‘Chicago Convention’), available at http://www.icao.int/publications/pages/doc7300.asp11. 27 For example, the UN Security Council recognized that it reflects customary international law in its Resolution 1067 (1996) as well as in its press release available at: http://www.un.org/press/en/ 1996/19960727.sc6247.html. See also Abeyratne 2014, at 68. 28 Articles of State Responsibility, Article 4. 29 Ibid., Article 8.

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‘effective control’ over the non-state actors’ conduct.30 This is a high standard requiring that it must be shown that effective control was exercised with respect to the specific violation and not to the group’s actions in general.31 This doesn’t mean that the principal perpetrators have to have been in a relation of ‘complete dependence’ on the state in question, but, according to the ICJ, it does have ‘to be proved that they acted in accordance with that State’s instructions or under its “effective control”.’32 This ‘effective control’ means that the state’s instructions were given ‘in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.’33 In the Nicaragua case,34 the ICJ concluded that while it found sufficiently proof that the US had participated in the ‘financing, organizing, training, supplying, and equipping’ of the Contras, this was not enough to establish ‘effective control’.35 Although the ICJ found that this support by the US to the Contras was a clear breach of the principle of non-intervention by meddling into the internal affairs of Nicaragua and thus a violation of international law in and of itself,36 it did not legally attribute the actions of the Contras to the US because it was not proven that the US directed or enforced those violations.37 According to Esa Kelloniemi, Finland’s main BUK expert who negotiated the acquisition of the BUKs for Finland and was Finland’s first BUK commander, firing a BUK missile requires extensive training and is not likely to have been possible for someone that is not a trained military officer, and at the very least not in a responsible manner.38 If the BUK could indeed not be launched by a layman but required a trained (Russian) military officer, the Russian state could be directly responsible for downing MH17, for instance if the BUK was manned by a Russian military officer, if the order of the launch of the missile was given by a Russian officer, or through the doctrine of effective control if Russian military were extensively involved in this operation. Whether or not Russia is responsible for downing MH17 therefore depends on what evidence can be found relating to who

30

Ibid. Case Concerning the Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ, Judgment, ICJ Reports 2007, at 43, 26 February 2007 (‘Bosnian Genocide case’), para 400. 32 Ibid. 33 Ibid. 34 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), ICJ, Merits, Judgment, ICJ Reports 1986, p. 14, 27 June 1986 (‘Nicaragua case’). 35 Ibid., para 115. 36 Ibid., paras 246–249. 37 Ibid., para 115. 38 Dennekamp G-J, MH17: het moest wel misgaan met de BUK-raket in Oost-Oekraïne, Nieuwsuur, 15 December 2017, https://nos.nl/nieuwsuur/artikel/2207738-mh17-het-moest-welmisgaan-met-de-buk-raket-in-oost-oekraine.html. 31

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was involved in launching the BUK missile and their relationship to the Russian state. Notably, the European Convention on Human Rights (ECHR), of which both Russia and the Netherlands are a state party, observes a less strict threshold criterion to establish responsibility of a state over the conduct of a non-state party. Rather than the ‘effective control’ standard that general public international law’s doctrine of state responsibility uses, the ECtHR assesses the link between a state party and non-state actors based on the state support (military, economic and political) provided to the private party,39 or whether it had decisive influence.40 The ECtHR considers political, financial and economic support as a sufficient ground for establishing the jurisdiction of a member state. The shooting down of a civilian airliner, whether deliberate or accidental, by agents of a member state or by non-state actors that act under the decisive influence of a member state, may well constitute a violation of the right to life under Article 2 ECHR.41 The ECtHR’s jurisprudence has established a strong legal framework for the assessment of lethal force by state agents, including in cases of internal and international armed conflict.42 For example, the ECtHR considered that it was a violation of Article 2 that state authorities lacked appropriate care regarding the control and organization of a military operation, and that they failed to consider the possibility that their intelligence assessments may have been erroneous.43 The order to launch the BUK missile that shot down MH17 may have been based on erroneous intelligence or a lack of conducting sufficient intelligence to identify the target as non-civilian. According to the ECtHR, however, the state is responsible for providing for a margin of error in evaluating information or intelligence before giving it to soldiers whose use of weapons automatically involve shooting to kill.’44 Moreover, with regard to the planning and conduct of a military operation, the ECtHR held ‘that when the military considered the deployment of aviation equipped with heavy combat weapons within the boundaries of populated area, they should have

39

Ilascu and Others v. Republic of Moldova and Russia, ECtHR, Grand Chamber, Judgment, Application no. 48787/99, 8 July 2004, paras 380–382; Ivantoc and Others v. Moldova and Russia, ECtHR, Fourth Section, Judgment, Application No. 2368/05, 15 Nov 2011, paras 118– 119. 40 Ilascu and Others v. Republic of Moldova and Russia, ECtHR, Grand Chamber, Judgment, Application no. 48787/99, 8 July 2004, para 392. 41 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (1950), ETS No. 5 (‘ECHR’). 42 See McCann and Others v. the United Kingdom, ECtHR, Grand Chamber, Judgment, Application no. 18984/91, 27 September 1995; D Korff, A Guide to the Implementation of Article 2 of the European Convention on Human Rights, Council of Europe, 25 November 2006, available at http://www.echr.coe.int/LibraryDocs/HR%20handbooks/handbook08_en.pdf. 43 McCann and Others v. the United Kingdom, ECtHR, Grand Chamber, Judgment, Application no. 18984/91, 27 September 1995, paras 211–214. 44 Ibid., para 211.

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considered the dangers that such methods invariably entail’.45 The Court also concluded that the use of heavy free-falling, high explosion aviation bombs in civilian areas is difficult to reconcile with the standard of care expected from a member state, even in an internal armed conflict.46 While the situation of MH17 does not involve the use of aviation bombs, it does concern the use of heavy weaponry in an airspace where civil aircraft flew which probably entails no lesser standard of care from a member state. Furthermore, the ECtHR has also found that the absence of ‘proper training and instructions’ in the use of firearms for the police can be a contributing factor leading to a violation of the duty under Article 2 to protect the right to life ‘by law’.47 This may likewise imply that the use (and perhaps also the provision) of a BUK missile entails an obligation upon the state for ‘proper training and instructions’. In short, the case law of the ECtHR provides that a state that is involved in the use of heavy and lethal weaponry has legal responsibilities to ensure that it is used in a manner that limits the risk to civilians, such as in the situation of civil aviation. In that light, Russia also holds obligations under the laws of armed conflict, or international humanitarian law (IHL). IHL applies to situations of armed conflict, including the armed conflict in Eastern Ukraine at the time of the MH17 crash. While in an armed conflict fighting sides have a number of privileges, such as that they, in principle, may lawfully kill combatants from the other party, they still need to adhere to a number of fundamental principles. One of the core rules of IHL is that combatants must distinguish between civilian and military objects: the ‘principle of distinction’.48 Only military objects may be the target of an attack. In addition, the ‘precautionary principle’ provides that parties to any armed conflict must take constant care to spare the civilian population, civilians, and civilian objects.49 Depending on whether and which preventive measures were taken to identify the target as a military target prior to launching the BUK missile, shooting down MH17 may well have been a violation of IHL.50

45

Isayeva v. Russia, ECtHR, Court (First Section), Judgment, Application no. 57950/00, 24 February 2005, para 189. 46 Ibid., paras 189–191. 47 Makaratzis v. Greece, ECtHR, Grand Chamber, Judgment, Application no. 50385/99, 20 December 2004, para 70. 48 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977), 1125 UNTS 3 (‘Additional Protocol I’), Article 48; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977), 1125 UNTS 609 (‘Additional Protocol II’), Article 13. 49 ICRC, Customary IHL Database, Rule 15, available at https://www.icrc.org/customary-ihl/eng/ docs/v1_cha_chapter5_rule15. 50 Additional Protocol I, Article 52(2).

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According to BUK-expert Kelloniemi, a BUK missile system should only function within a larger unit that includes a command centre and a nearby radar installation that provides the command centre with target identifying information.51 The ability to identify the target of the installation that fires the BUK missile is limited to seeing a dot on a screen, without clear information on the size of a flying object (according to Kelloniemi, only a military officer trained specifically on the BUK for more than one year may be able to distinguish between a small fighter jet or large Boeing), and it offers no information on whether it is a military or civilian target.52 The launching installation should therefore only execute the order of the command centre. However, in Eastern Ukraine, there was no such command centre.53 It is then still possible to launch a BUK missile, but not to properly identify the target in accordance with the principles of distinction and precaution. To put things into perspective, the sole use of a free smart phone flight information app would have been to provide the information that in fact a civilian aircraft was nearby. This seems to have been the least that the fighters could have done before launching the BUK into the air, locked onto the unidentified dot in the air, if indeed the downing of MH17 was a mistake rather than the aim. Moreover, Article 1 Montreal Convention provides that being an accomplice to destroying an aircraft is also a crime.54 Accordingly, those that are responsible for having provided or transported the weapon, and Russia as the attributable state, may have provided a ‘significant contribution’ to the perpetrators’ ability to commit such a crime. This argument would require evidence that those that delivered the weapon were aware that there was a serious risk that they would be used to commit a crime.55 The question is whether this ‘awareness of a serious risk’ would include that they were aware that there was a serious risk that those to whom they delivered the BUK would shoot the BUK missile without taking proper care that it would not take down a civil aircraft. In the ICJ Bosnian Genocide case, the ICJ held that it sufficed that the Serbian authorities ‘could hardly have been unaware of the serious risk’ that genocide would be committed.56 This criterion thus requires a standard of proof below that of knowing that a crime would be committed.57 The argument with regard to MH17 would be that Russia could not have been unaware of the serious risk that civil aviation would be endangered by the use of the BUK missile of those they delivered the weapon system to did not have the training or radar technology required to identify the target. 51

G-J Dennekamp, MH17: het moest wel misgaan met de BUK-raket in Oost-Oekraïne, Nieuwsuur, 15 December 2017, https://nos.nl/nieuwsuur/artikel/2207738-mh17-het-moest-welmisgaan-met-de-buk-raket-in-oost-oekraine.html. 52 Ibid. 53 Ibid. 54 Montreal Convention, Articles 1(1)(b) and 1(2). 55 See Bosnian Genocide case, para 432. 56 Ibid., para 436. 57 See for the argument that this applies to delivering weapons to non-state actors, Clapham 2014, at 163–196.

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Finally, Russia may be held accountable for failing to prevent the downing of MH17 if it is found to have had a sufficiently close relationship to the firing of the missile but failed to take measures to prevent offenses against civil aviation security. Article 10 of the Montreal Convention holds that all ‘Contracting States shall, in accordance with international and national law, endeavour to take all practicable measures for the purpose of preventing’ offences against civilian aircraft. Moreover, as a state party to the ECHR, Russia has a due diligence obligation under Article 2 ECHR to prevent arbitrary killing or deprivation of life.

11.3.2 Duty to Conduct Effective Investigations Apart from possible involvement (to whatever extent) in the MH17 crash, the Netherlands may also claim that Russia violated and continues to violate its obligations to investigate, communicate its information to the International Civil Aviation Organization (ICAO), cooperate with the JIT investigations, and prosecute or extradite those responsible. This is not only a violation of Security Council Resolution 2166 (2014), but also of a number of other sources of international law. The Montreal Convention provides that all states are obliged to report to the ICAO any information they possess on the circumstances of an offense against civilian aircraft or, if applicable, on the measures taken in relation to prosecution or extradition of an alleged offender.58 It moreover obliges states to ‘afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences.’59 In addition, the International Covenant on Civil and Political Rights (ICCPR) to which Russia and the Netherlands are also both party positively obliges Russia to conduct an effective investigation into cases of apparently unlawful killings60 and to protect people from death from third parties.61 Furthermore, as a state party to the ECHR, Russia has an obligation under Article 2 ECHR to conduct an ‘effective investigation’ into killings allegedly committed by their agents or in their jurisdiction.62 The ECtHR has repeatedly held that it is not necessary to establish beyond reasonable doubt the involvement of a state agent in a killing in order to give rise to the procedural duty to investigate under Article 2 ECHR.63 The ECtHR defines ‘effective investigation’ as an investigation capable of 58

Montreal Convention, Article 13. Montreal Convention, Article 11. 60 Abubakar Amirov and Aïzan Amirova v. Russian Federation, Human Rights Committee, Views, Case No. 1447/2006, U.N. Doc. CCPR/C/95/D/1447/2006, 22 April 2009, para 11.2. 61 Rodley 2014, at 209–232; Human Rights Committee, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para 8. 62 McCann and Others v. UK, para 161. 63 See generally Ergi v. Turkey, ECtHR, Chamber, Judgment, Application 23818/94, 28 July 1998. 59

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identifying those responsible and committing them to justice.64 An investigation is effective if the following institutional and procedural requirements are fulfilled: (i) strict institutional and practical independence of the investigators; (ii) undertaking the necessary investigative steps to secure the evidence; (iii) promptness; and (iv) openness to public scrutiny and involvement of the next of kin.65 Importantly, the difficulties that come with the security conditions during ongoing armed conflict do not reduce the obligation, standards or promptness of investigation.66 In addition, the ECtHR may consider as unlawful any attempt to undermine the effectiveness of investigations conducted by other parties, such as through the JIT. Moreover, pursuant to allegations of involvement in the MH17 crash of Russian and Ukrainian nationals that fled to Russian territory, Russia may be held accountable for violating Article 6 of the Montreal Convention for failing to take into custody any offender or alleged offender that is present in its territory.67 If Russia does not extradite the arrested offender, it has an obligation to prosecute him/her,68 and, when unsure whether the evidence warrants a prosecution, to submit the question within reasonable time to the competent national authorities who may decide whether or not to prosecute based on the evidence before them.69 Additionally, now that the Netherlands has brought criminal charges against offenders that are in Russian territory, Russia is obliged to immediately make an inquiry into the facts.70 Therefore, in accordance with civil aviation law and human rights law, if Russia did not investigate whether their state agents were involved, whether their state support (military, economic, political) was a factor in the crash of MH17, or other circumstances or individuals that could help identify those responsible and bringing them to justice, Russia may well have breached their legal obligations vis-à-vis the Netherlands by not conducting effective investigations and cooperating towards bringing those responsible to justice. Notably in this respect, Russia’s Constitution would prevent Russia from extraditing a Russian national if that would be requested by the Netherlands.71 64 Kelly and Others v. the United Kingdom, ECtHR, Court (Third Section), Judgment, Application No. 30054/96, 4 May 2001, para 94. 65 Mowbray 2004, at 31–35. 66 Ibid., at 40; Kerimova and Others v. Russia, ECtHR, Court (First Section), Judgment, Application no. 17170/04, 3 May 2011, para 265; Khashiyev and Akayeva v. Russia, ECtHR, Court (First Section), Judgment, Applications no. 57942/00 and 57945/00, para 155; Al-Skeini and Others v. UK, ECtHR, Grand Chamber, Judgment, Application no. 55721/07, 7 July 2011, paras 176–177. See also Tanrikulu v. Turkey, ECtHR, Grand Chamber, Judgment, Application no. 23763/94, 8 July 1999, para 103. 67 Montreal Convention, Article 6(1). 68 Montreal Convention, Article 7. 69 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ, Judgment, ICJ Reports 2012, 422, 20 July 2012, para 94. 70 Montreal Convention, Article 6(2). 71 Article 61 Russian Constitution reads ‘A citizen of the Russian Federation may not be deported from Russia or extradited to another State’, available at http://www.constitution.ru/en/1000300003.htm

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Nevertheless, this does not bar Russia’s obligation to conduct effective investigations and cooperate towards bringing the alleged perpetrator to justice. Article 27 of the Vienna Convention on the Law of Treaties provides that a state cannot invoke provisions of its internal law as justification for its failure to perform a treaty.72 Ukraine and the Netherlands have for instance agreed by treaty that Ukrainian nationals (likewise barred from extradition due to the Ukrainian Constitution) could participate in possible judicial proceedings through videoconferencing and would be imprisoned in Ukraine in accordance with the Dutch criminal court’s ruling.73 Russia is under the obligation to likewise ensure that those that committed crimes connected with the downing of MH17 are investigated and prosecuted, and may do in whatever way is practical as long as it occurs in accordance with its international legal obligations and international legal standards.

11.3.3 Bringing a Case Against Russia Accordingly, the Netherlands can argue that Russia failed to investigate and failed to cooperate with the JIT, as well as – depending on whether there is evidence to prove this – that Russia may have failed to prevent or was even involved in shooting down MH17. These could amount to violations of Russia’s obligations under international law, such as the civil aviation treaties, international human rights law, and international humanitarian law as well as other treaty obligations that exist between the Netherlands and Russia. However, having law on one’s side does not necessarily mean that a just outcome will be achieved. Unless both states to a dispute cooperate, it is challenging to bring a case to an international court and, subsequently, to get a judgment enforced. For example, jurisdiction at the ICJ requires the consent of both parties of the dispute. States often do not both consent to bringing a case to the ICJ in situations of human rights, use of force or international humanitarian law. As a consequence, the ICJ has limited case law in these fields.74 If states do not agree on bringing a dispute before the ICJ, the ICJ could still have jurisdiction on the basis of a ‘compromissory clause’. A compromissory clause is a particular provision in a 72

Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331, No. 18232, Article 7. Agreement between the Kingdom of the Netherlands and Ukraine on international legal cooperation regarding crimes connected with the downing of Malaysia Airlines Flight MH17 on 17 July 2014 (2018), No. 55449. 74 Issues related to international human rights law and international humanitarian law had been directly discussed by the ICJ only within the last 2–3 decades. See, for example, Legality of the Threat or Use of Nuclear Weapons, ICJ, Advisory Opinion, ICJ Reports 1996, p. 226, 8 July 1996 (‘Nuclear Weapons Opinion’); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, Advisory Opinion, ICJ Reports 2004, p. 136, 9 July 2004 (‘Wall Opinion’); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), ICJ, Judgment Jurisdiction and Admissibility, ICJ Reports 2006, p. 6, 3 Feb 2006 (‘Armed Activities case’); Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). 73

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treaty that provides that by ratifying the treaty, states agree that either party to a dispute can refer a case to the ICJ when it relates the application or interpretation of the respective treaty. Among the treaty relations between Russia and the Netherlands, and relating to MH17, the Chicago Convention75 and the 1999 International Convention for the Suppression of the Financing of Terrorism (ICSFT)76 may provide jurisdiction of the ICJ, although their compromissory clauses include preconditions. Because Russia has made a reservation to the Montreal Convention’s compromissory clause, this treaty is unlikely to serve as a direct source for jurisdiction if Russia is unwilling to consent to asking the ICJ for a judgment. If the Netherlands would want to file a case at the ICJ on the basis of the Chicago Convention, Article 84 of the Chicago Convention allows this but only as an appeal to a decision of the ICAO Council. Article 84 requires first that states attempt to resolve the dispute through negotiations before a state can unilaterally submit a dispute to the ICAO.77 These negotiations have to be genuine, on the subject matter of the dispute, and have to be pursued as far as possible for the case to be admissible at the ICAO Council.78 The Council of the ICAO is in essence a political and policy setting body, consisting of 36 representatives of the contracting states, which may, on occasion, act as arbiter between member states. The Council has the power to withdraw a Contracting State’s voting powers in the ICAO Assembly if that Contracting State is ‘in default’.79 The Council has adopted ‘Rules for the Settlement of Differences’ which lay down rules regarding, inter alia, jurisdiction, the filing of preliminary objections, and the submission of written memorials.80 The Council usually limits itself to technical issues while attempting to steer clear of political issues.81 Some scholars have described the role of the Council ‘less as a court of law than as a facilitator for settlement.’82 Only after the Council has made its decision and if one of the involved states does not agree with the decision, may that state submit the dispute to an ad hoc arbitration or to the ICJ.83 The 1971 India-Pakistan dispute is the only ICAO Council dispute that has been referred to the ICJ, which reiterated that the ICAO Council has jurisdiction to hear any dispute that requires the ‘interpretation or application’ of the aviation 75

Chicago Convention, Article 84. International Convention for the Suppression of the Financing of Terrorism (1999), 2178 UNTS p. 197 (‘ICSFT’), Article 24. 77 Chicago Convention, Article 84. 78 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), ICJ, Preliminary Objections, ICJ Reports 2011, nr. 14, 1 April 2011, pp. 132–4. 79 Chicago Convention, Article 88. 80 Alvarez 2006, at 448. 81 Abeyratne 2014, at 665. 82 Alvarez 2006, at 449. 83 Chicago Convention, Article 84. 76

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conventions.84 The matter was eventually settled extra-judicially between India and Pakistan and therefore the ICAO Council never reached a final decision.85 On two other occasions, the ICAO Council served more as a fact-finding body than a judicial organ. After the Soviet Union’s downing of Korean Airlines Flight 007 in 1983 and the United States shooting of Iran Air Flight 655 in 1988, the Council referred the matters to the ICAO Secretary-General to conduct fact-finding missions. The investigation into the downing of the Korean Airlines Flight concluded that the Soviet Union had not engaged in visual identification of the aircraft as it was supposed to. The ICAO consequently ‘condemned’ Russia’s actions as well as its failure to cooperate afterwards.86 With respect to the downing of the Iran Air Flight, the ICAO concluded that the US had not issued its warnings to the airliner in conformity with the ICAO standards. It therefore ‘deeply deplored’ the ‘tragic incident’.87 In neither case did the ICAO impose sanctions or award reparations. Iran later appealed the ICAO’s decision to the ICJ but both parties decided to withdraw the case before the ICJ had made any decisions.88 Alternatively, the Netherlands could base a case at the ICJ on the ICSFT, which addressed the financing of terrorism. Russia and the Netherlands are state party to this treaty and have not made a reservation to the ICSFT’s compromissory clause. While the treaty focuses on suppressing terrorism, the treaty provides in its Article 2 that the offences that fall within the treaty’s scope include the offences that are included in the Montreal Convention.89 The pending Ukraine v. Russia case at the ICJ is (partially) based on the ICSFT’s compromissory clause. Ukraine argues that Russia systematically provides armed groups in Eastern Ukraine with heavy weaponry, money, personnel, training and other support that enabled them to conduct attacks, including against MH17.90 Russia argues that the treaty does not apply because it would only address financing activities by private individuals and not by the state.91 The ICJ concluded in its provisional measures decision that there is a dispute on the application or interpretation of the ICSFT and that it therefore preliminarily (‘prima facie’) has jurisdiction.92 The Netherlands may be awaiting the ICJ’s judgment in this pending case to see how the ICJ’s judges decide over the

84 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), ICJ, Judgment, ICJ Reports 1972, p. 46, 18 August 1972, para 28. 85 Trapp 2011, at 226. 86 Alvarez 2006. 87 Ibid. 88 ICJ, Press Release 1996/6: Discontinuance, 23 February 1996, available at http://www.icj-cij. org/docket/inde11.php?pr=624&code=irus&p1=3&p2=3&p3=6&case=79&k=9c. 89 ICSFT, Article 2. 90 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), ICJ, Order on Request for Provisional Measures, ICJ Reports 2017, p. 104, 19 April 2017 (‘Ukraine v. Russia case’), para 25. 91 Ibid., para 27. 92 Ibid., para 31.

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scope and application of the ICSFT and its applicability to MH17, before they decide whether and how to move forward against Russia. Before a dispute can be referred to the ICJ on the basis of the ICSFT, the ICSFT requires that parties must try to settle the dispute through negotiation. Only if they cannot reach agreements within reasonable time, they may unilaterally submit the dispute to arbitration. If parties then cannot agree within six months on how to organize the arbitration, any one of the parties may refer the dispute to the ICJ.93 So whether the Netherlands relies on the Chicago Convention or the ICSFT, the first step is negotiations. The reason that the Netherlands and Australia invited Russia to enter in negotiations when they announced that they hold Russia accountable for its involvement in downing MH17 is thus not (merely) politeness or diplomatic custom, it is also a procedural requirement if they will pursue judicial proceedings against Russia. In addition to the ICJ, the Netherlands may also ask the ECtHR in Strasbourg to rule over Russia’s accountability for MH17 on the basis of possible violations of Article 2 ECHR as was discussed above. As members of the Council of Europe, Russia and the Netherlands are parties to the ECHR and therefore fall within the jurisdiction of the ECtHR. The ECtHR may offer binding judgments and award compensation. The ECHR permits both inter-state applications and individuals (all relatives of the MH17 victims) to submit a claim at the ECtHR. As mentioned above, several victims’ relatives recently announced they submitted a complaint against Russia to the ECtHR. To bring an application, an individual applicant must: (i) be a victim of a violation; (ii) have suffered a ‘significant disadvantage’; (iii) have exhausted all domestic remedies; and (iv) file his/ her application in a timely manner.94 Article 35 of the ECHR provides that individuals need to first exhaust domestic remedies, which means that they have to file a case in the state against which it raises its application before filing an individual application with the ECtHR. The rationale behind this rule is that the state should have the opportunity to remedy its wrongs before being judged by the ECtHR.95 However, the ECtHR consistently applies this rule with ‘some degree of flexibility and without excessive formalism’96 in the sense that these domestic remedies need to be accessible in practice and offer reasonable prospects of success.97 Pursuant to Article 33 ECHR, any member state may refer an alleged breach of the ECHR. For an inter-state application, the exhaustion of domestic remedies is also required, but is much less strictly applied. Inter-state applications differ from individual applications in that they generally aim at ‘bringing before the [Court] an

93

ICSFT, Article 24(1). ECHR, Articles 35(1), 35(3)(b) and 34. 95 Schenk v. Germany, ECtHR, Fifth Section, Decision as to the Admissibility, Application no. 42541/02, 9 May 2007. 96 See for instance Ringeisen v. Austria, ECtHR, Chamber, Judgment, Application no. 2614/65, 16 July 1971, para 89. 97 Sejdovic v. Italy, ECtHR, Grand Chamber, Judgment, Application no. 56581/00, 1 March 2006, para 46. 94

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alleged violation of the public order of Europe.’98 It follows that the applicant state does not have to claim to be a ‘victim’ of any breach nor to justify a special interest in the subject matter of the application.99 Member states can use the inter-state application in favour of individuals regardless of their nationality, meaning that the range of potential beneficiaries is not limited to the nationals of the complaining state.100 Consequently, inter-state applications allow the Netherlands and any other member state of the Council of Europe to file an application potentially benefiting all relatives of MH17 victims, regardless of their nationality. The Netherlands has not filed an inter-state application but declared in May 2019 that it will provide a legal memorandum in the case that victims have started against Russia at the ECtHR, to share its own views on that application. However, on 14 December 2015, Russia adopted legislation which it claims allows the overruling of decisions of the ECtHR.101 In the first significant case based on this law, Russia’s constitutional court held on 17 January 2017 that Russia should not pay the award that the ECtHR ordered for the Yukos shareholders, on the grounds that the ECtHR’s ruling was an illegal infringement of Russian sovereignty.102 While Article 27 of the Vienna Convention of the Law on Treaties provides that a state cannot rely on domestic law to justify violating its treaty obligations, this may have implications in terms of enforcement of the Court’s rulings should a case be brought against Russia at the ECtHR for the downing of MH17. Aside from judicial proceedings at either the ICJ or ECtHR, the Netherlands may also ask the ICAO or the UN General Assembly to request an Advisory Opinion from the ICJ on the legal responsibilities for the MH17 crash.103 To get such an organization to submit a request for an Advisory Opinion requires significant diplomatic effort and political support. The ICJ’s Advisory Opinions are not binding upon states but can provide clarity on a legal position and hold high authoritative and symbolic status. Lastly, the Netherlands could also try to find agreement with Russia to establish an alternative mechanism to settle the dispute on the basis of state responsibility.

98

Cyprus v. Turkey, ECtHR, Grand Chamber, Decision on just satisfaction, Application no. 25781/94, 12 May 2014, para 37. 99 See Austria v. Italy, European Commission of Human Rights, Decision of the Commission as to the admissibility, Application no. 788/60, 11 January 1961, available at http://hudoc.echr.coe. int/sites/eng/pages/search.aspx?i=001-115598#{“itemid”:[“001-115598”]}. 100 Ibid. 101 V Soldatkin, Putin signs law allowing Russia to overturn rulings of international rights courts, Reuters, 15 December 2015, available at http://www.reuters.com/article/us-russia-court-putinidUSKBN0TY17H20151215. 102 See for instance https://www.ft.com/content/e2bc9f30-de5b-11e6-86ac-f253db7791c6. 103 Statute of the International Court of Justice (1945), 59 Stat. 1031; T.S. 993, Article 65; Charter of the United Nations (1945), 59 Stat. 1031; TS 993, Article 96. For a list of authorized bodies, see the website of the International Court of Justice, at http://www.icj-cij.org/jurisdiction/inde11.php? p1=5&p2=2&p3=1.

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This may for instance take form of an arbitral tribunal or fact-finding mechanism. Although these are also consent-based and may thus prove difficult to establish, such mechanisms may provide more flexibility to negotiate and address possible concerns because the states concerned can to large extent set the rules themselves, as long as it does not violate international law.

11.4

The Legal Case Against Ukraine

Russia is not the only state that may have contributed to the situation in which the MH17 disaster could have occurred. With regard to Ukraine, the DSB concluded that circumstances at the time of the accident ‘provided sufficient reason for closing the airspace over the conflict zone as a precaution.’104 The legal question with regard to Ukraine is whether their failure to close its airspace or communicate about the risks to the safety for civil aviation at the time of the MH17 crash amounts to a violation of international law. A number of victims’ relatives have submitted a complaint against Ukraine at the ECtHR.105 The Netherlands could also file an inter-state complaint at the ECtHR or at the ICJ for violating the Chicago Convention, following the procedural requirements that were discussed in the previous section. However, so far, the Netherlands has not taken steps against Ukraine and there are no signs that it will. In fact, it announced on 5 June 2018 that they are not preparing legal steps against Ukraine for failing to close its airspace because they regard the evidence insufficient.106 While this section summarizes the legal arguments against Ukraine, the next and final section discusses the reasoning behind the Netherlands’ decisions to proceed against Russia and not against Ukraine. In their report, the Dutch Safety Board concluded that the Chicago Convention and related document 9554-AN/932 and Circular 330 AN/189 expects state parties to take reasonable measures to ensure a safe airspace.107 In its Annex 11, the Chicago Convention obliges each state to coordinate activities that are potentially hazardous to civil aircraft with the appropriate air traffic services, in order to avoid

The Dutch Safety Board Report, The crash of Malaysia Airlines flight MH17, 22 October 2015, available at http://www.onderzoeksraad.nl/en/onderzoek/2049/investigation-crash-mh17-17july-2014, p. 10. 105 Four applications have been submitted against Ukraine and registered under numbers 73776/ 14 (Ioppa v Ukraine), and, 973/15, 4407/15 and 4412/15, as noted by the Court in http://hudoc. echr.coe.int/eng#{“itemid”:[“001-165535”]}. 106 Dutch Minister of Foreign Affairs, Mogelijk aandeel van Oekraine in het neerhalen van vlucht MH17, Min-BuZa.2018.1293-25, 5 June 2018, available at https://app.1848.nl/static/pdf/a3/86/ a3869a63f108aa0a512a9638c351d81cd04c50ec.pdf. 107 The Dutch Safety Board Report, The crash of Malaysia Airlines flight MH17, 22 October 2015, available at http://www.onderzoeksraad.nl/en/onderzoek/2049/investigation-crash-mh17-17july-2014, p. 172. 104

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hazards to civilian aircraft.108 Annex 17 provides that each state is obliged to implement regulations, practices and procedures to ensure the safety of civilian aviation,109 to keep the level of threat to civilian aviation within its territory under constant review and notify the ICAO if there are any changes,110 and to establish procedures to share threat information with other states.111 Annex 15 provides regulations and procedures that detail the obligation to issue a NOTAM (Notice to Airmen) to inform pilots of, inter alia, the presence of hazards which affect air navigation and the establishment of danger areas.112 Moreover, the Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations issued by the ICAO, although not binding, stipulates that in case of an armed conflict, the states whose military forces are involved bear the responsibility of taking any additional measures that are needed to ensure flight safety for civil aircrafts.113 Article 10(3) of this manual holds that the state that is responsible for air traffic services, which is Ukraine in this case, has to assess the risk of flying over the armed conflict area based on all the available information and ultimately determine whether or not the airspace is safe enough for passage, or should be closed or restricted.114 In short, while states are not liable for ensuring total safety of their airspace, they are under a number of obligations to ensure that there are institutions and procedures in effect, and that these institutions and procedures function diligently in examining the safety of their airspace and sending out warnings when necessary. The question that arises is whether Ukraine took the required measures to ensure the safety of its sovereign airspace. Days prior to the crash of flight MH17, several military aircraft had been shot down, most of them by weapons operated from the ground.115 In June and July, several military aircrafts (including both airplanes and helicopters) had been shot down with the use of MANPADS, which are ground-to-air missiles.116 For reasons unknown at the time but likely linked to the increased military activities in the region (as revealed by statements of Ukrainian officials after the downing of Flight MH17), Ukraine restricted civil aviation in its airspace on 14 July 2014. Civil

108 ICAO, Annex 11 to the Convention on International Civil Aviation: Air Traffic Services (2001), Article 2.17. 109 ICAO, Annex 17 to the Convention on International Civil Aviation: Security (2005), Article 2.1.2. 110 Ibid., Article 3.1.3. 111 Ibid., Article 2.4.3. 112 ICAO, Annex 15 to the Convention on International Civil Aviation: Aeronautical Information Services (2013), Article 5.1.1.1.(l), (n). 113 ICAO, Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations (1990), Doc. 9554-AN/932, para 10.2. 114 Ibid., para 10.3. 115 The Dutch Safety Board Report, The crash of Malaysia Airlines flight MH17, 22 October 2015, available at http://www.onderzoeksraad.nl/en/onderzoek/2049/investigation-crash-mh17-17july-2014, at 181. 116 Ibid., at 183.

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aviation was prohibited to an altitude of 32,000 feet. That same day, a Ukrainian Antonov An-26 was hit while flying at a level of 6,500 m (approximately 21,325 feet) and downed.117 The Ukrainian government considered that this aircraft must have been downed by a weapon that was more powerful than used so far.118 Nevertheless, the Ukrainian government did not see sufficient reason to take additional measures and, upon request of the DSB, Ukrainian officials said that there were no grounds to expect threats to civil aviation following the increase of military activity in the region.119 At most, the downing of the Antonov sped up the request that was already submitted to restrict civil aviation below 32,000 feet.120 Ukraine did not further restrict its airspace, nor did it issue any warning about the possible use of surface-to-air missiles, despite the fact that indications appeared that heavier weaponry was being used in the area. Ukraine was under the obligation to warn states and airliners if it can be shown that Ukraine knew or must have known that the rebels had obtained weapons that could shoot down civil aviation at an altitude higher than 32,000 feet. It can also be argued that it should have closed its entire airspace because the apparent knowledge that the airspace below 32,000 feet was dangerous entails that planes are unable to fly at a lower altitude or make an emergency landing if so required. Accordingly, the failure to inform other states and the ICAO of knowledge of the possession of missiles by those fighting in and holding control over Eastern Ukraine, or other information that the fighting in Eastern Ukraine posed a serious threat to civil aviation may well constitute a breach of Ukraine’s due diligence obligations under the civil aviation conventions. These legal claims could be submitted to the ICAO Council for consideration, and possibly arbitration or the ICJ in appeal as discussed above, as well as the ECtHR for possible violation of Article 2 ECHR for failing to communicate about the risks to civil aviation. A case at the ECtHR may however encounter an obstacle in the ECtHR’s Osman v. UK case.121 In this case, the ECtHR held that state authorities have a duty to prevent criminal offences provided that (i) the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party; and (ii) the authorities failed to take all necessary measures within the scope of their powers, which, judged reasonably, might have been expected to avoid the risk. While the second criterion seems fulfilled as was discussed above, the first criterion may pose a problem for a successful claim for MH17, and most civil aviation situations, because of the ‘identified individual’-standard. States do not have passenger lists of the flights moving through their airspace and thus the victims are not ‘identified

117

Ibid. Ibid., at 183–184. 119 Ibid., at 196. 120 Ibid. 121 Osman v. UK, ECtHR, Grand Chamber, Judgment, Application no. 23452/94, 28 February 1998. 118

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individuals’. The question is whether the ECtHR would be willing to apply a different criterion, such as ‘to the safety of an identified civil aircraft’, to also make Article 2 ECHR practically applicable to civil aviation. The Court had taken this somewhat narrow approach in Osman to not place a disproportionate burden on the state: a state cannot prevent all risks to civilian deaths and thus the Court has sought a reasonable balance with regard to what a state should and should not be held accountable for. However, the MH17 situation shows that in civil aviation, states through which civil aircraft flies would not meet the ‘identified individual’ criterion, even though the plane itself received permission to fly through its airspace and relies on the state’s air traffic control system as well as its safekeeping and information-sharing concerning risks. If individuals’ complaints are considered on their merits (or if the Netherlands files an inter-state complaint), it will be interesting to see what the Court decides on this issue.

11.5

The Dutch Pursuit for Justice

With the five-year-commemoration in sight, no perpetrator has been prosecuted and no state has admitted responsibility even though both Russia and Ukraine may have breached their obligations under international law in a way that may have contributed to the situation in which the downing of MH17 could occur. While the Netherlands has so far not commenced legal proceedings against either state, as discussed above, the ICJ is currently considering the claim of Ukraine that Russia has violated its legal responsibilities under the ICSFT with regard to its alleged illegal involvement in Crimea and Eastern Ukraine. In this case, Ukraine explicitly argues that MH17 is one of the incidents in which Russia has been involved and has violated its international legal obligations.122 The Netherlands may be awaiting the ICJ’s judgment to see how its judges respond to Ukraine’s application before deciding its next steps against Russia if negotiations (continue to) fail. Dutch practice in the past years has focused on investigating the crash site and circumstances. The Netherlands announced that it will prosecute suspects in the Dutch criminal court system, and announced (in cooperation with Australia) to hold Russia accountable for its role in the downing of MH17. The Netherlands has refrained from holding Ukraine accountable for failing to close its airspace. Instead, as country in which the crash occurred, the Netherlands sought its cooperation in gathering evidence and investigating those responsible. Until 2018, the Netherlands has also been reluctant in making claims against Russia. With the announcement to hold Russia accountable in 2018, however, the Netherlands invited Russia to enter into negotiations. Such negotiations are important to try and find common ground towards a settlement, but also as a procedural requirement for future legal proceedings, if the Netherlands chooses to pursue those.

122

Ukraine v. Russia case, para 135.

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As the analysis in this chapter shows, the Netherlands appear to have sufficient legal reasons to consider legal proceedings against Russia and Ukraine. Nevertheless, the Netherlands has been reluctant to do so, and continues to be so with regard to Ukraine’s obligation to communicate about the dangers in its airspace. It faces the dilemma between championing the victims of MH17 who they promised truth and accountability and considering the political and economic repercussions for going after these states in legal proceedings. With regard to Russia, the Netherlands needs to take into consideration economic and political consequences: that too strikes the Dutch society that they represent and whose interests they are responsible for. With regard to Ukraine, the Netherlands faces the dilemma that holding Ukraine accountable for failing to close its airspace may not wield the cooperation they need from Ukraine to find evidence against the perpetrators. However, by not pursuing legal proceedings against those that violated legal obligations that contributed to the MH17 crash, the Netherlands not only compromises its promise to not rest until those responsible were held to account (which may have been too ambitious and raised false expectations), but also leaves victims’ relatives to face a difficult choice: each has to decide whether to pursue legal accountability themselves and thus spend money on lawyers, choose which to trust with their case, and go through retraumatizing memories during the many years that legal proceedings take, vis-à-vis leaving the situation be and – for some – feeling like they gave up on justice for their beloved. Moreover, for the wider Dutch society and the flying public-at-large in particular, this raises the question of what international civil aviation law and thus civil aviation safety is for, if states that breach their obligations are not held to account. While legal proceedings in international law cannot guarantee that compensation will actually be paid or apologies provided, it can clarify states’ responsibilities and sanction those that violate them. In that respect, the DSB report indicates that the risk assessment performed by all parties involved throughout civil aviation, including Ukraine, relies too heavily on actual threat and intention rather than consider the unpredictability and unintentional threats that an armed conflict brings, because control over certain parts of the territory may be compromised and reliable information may be difficult to obtain.123 In that light, legal proceedings on matters of civil aviation may help clarify who is responsible for what, and what occurs when such obligations are breached, in a world where increasingly both civil aircraft and lethal missiles are up in the same air. MH17 is a tragedy for Dutch society and most of all, of course, for those that lost loved ones. The crash and its causes also pose legal questions on responsibilities of various actors and political (and emotional) questions on whether or not to pursue answers to these legal questions through legal proceedings. As was described in this

The Dutch Safety Board Report, The crash of Malaysia Airlines flight MH17, 22 October 2015, available at http://ww.onderzoeksraad.nl/en/onderzoek/2049/investigation-crash-mh17-17july-2014, at 247.

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chapter, there seem to be a number of legal obligations that Russia and Ukraine may have violated. However, finding a legal avenue through which to pursue these claims is challenging in international law. In addition, even if such proceedings would lead to a judgment that concludes that violations have occurred, to actually enforce those legal decisions and receive compensation and acknowledgement of responsibility (and detention for individuals if they have committed a crime and are convicted in a criminal court of law), is yet again filled with obstacles and uncertainty. Successfully pursuing justice for MH17 is thus a difficult quest and demonstrates how modestly we must appreciate what law and politics can achieve in an international order of states that have made international legal agreements between them but are less willing and able to enforce those agreements against one another. It is in that complex geopolitical climate that we must consider the Dutch practice with regard to MH17 vis-à-vis Russia and Ukraine. In the reality of the contemporary global world order and the place that states have created for an international rule of law in it, the Netherlands may find the law on its side, but that does not mean that they are able or willing to claim that right.

References Abeyratne R (2014) Convention on International Civil Aviation: A Commentary. Springer, Montreal Alvarez J (2006) International Organizations as Law-Makers. Oxford University Press, New York Clapham A (2014) Weapons and Armed Non-State Actors. In: Casey-Maslen S (ed) Weapons Under International Human Rights Law. Cambridge University Press, New York De Hoon M (2017) Navigating the Legal Horizon: Lawyering the MH17 Disaster. Utrecht Journal of International and European Law 33(84):90–119 De Hoon M, Fraser J, McGonigle Leyh B (eds) (2016) Legal Remedies for Downing Flight MH17. Public International Law & Policy Group and VU University Amsterdam White Paper, https://www.vu.nl/nl/Images/Legal_Remedies_for_Downing_Flight_MH17_tcm289-747125.pdf, accessed 30 January 2019 Mowbray A (2004) The Development of Positive Obligations Under the European Convention on Human Rights by the European Court of Human Rights. Hart Publishing, Portland Rodley N (2014) Integrity of the Person. In: Moeckli D et al. (eds) International Human Rights Law. Oxford University Press, New York Trapp K (2011) State Responsibility for International Terrorism. Oxford University Press, Oxford

Chapter 12

What a Drag(net): Dutch Surveillance Laws in the Light of European Union Data Protection Law Mistale Taylor

Contents 12.1 12.2 12.3 12.4 12.5

Introduction...................................................................................................................... Background...................................................................................................................... Content of the New Law................................................................................................. A Referendum and Subsequent Court Action ................................................................ The ISS Act 2017 and EU Data Protection Principles .................................................. 12.5.1 Lawful Processing .............................................................................................. 12.5.2 Purpose Specification and Limitation ................................................................ 12.5.3 Data Quality........................................................................................................ 12.5.4 Fair Data Processing........................................................................................... 12.6 Conclusion ....................................................................................................................... References ..................................................................................................................................

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Abstract In 2017, the Dutch Parliament controversially approved the Dutch Intelligence and Security Services Act (ISS Act) 2017, which started applying in May 2018. The Act aimed to reflect both new security threats and technological developments. Many groups and individuals took issue with the law’s provisions allowing for mass, indiscriminate surveillance by authorities and their bulk collection of personal data. The draft law inspired a citizen-initiated referendum and multiple court cases aimed at changing the law to better protect individual privacy, all of which were largely unsuccessful. An Explanatory Memorandum submitted with the original bill and many scholars have assessed the law’s (in)compatibility Mistale Taylor is Assistant Professor, Utrecht University. Thank-you very much to Yulan Weeres for her invaluable help. Thank-you, too, to Ilina Georgieva for her feedback on an earlier draft. All mistakes remain the author’s own. M. Taylor (&) Utrecht University, Utrecht, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3_12

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with the Council of Europe legal framework. Little attention, however, has been given to how the law adheres to EU data protection standards. Whilst EU law does not extend to national security and intelligence, EU data protection law can provide guidance on how authorities should collect and process individuals’ personal data. Furthermore, the Court of Justice of the EU has increasingly made pronouncements on Member State law that covers security issues. Using EU data protection law as a guide, this chapter assesses certain provisions of the ISS Act. It determines that the Act does not adhere to the cornerstone principles of purpose limitation, data minimisation and limited data retention.













Keywords Data protection Surveillance European Union law Security Privacy Right to data protection Dutch Intelligence and Security Services Act 2017




12.1




Introduction

Similar to many other European countries, including the United Kingdom, France and Germany, the Netherlands has not uncontroversially adopted a revised intelligence-gathering law. The 2017 Dutch Intelligence and Security Services Act (Wet op de Inlichtingen- en veiligheidsdiensten) (ISS Act 2017) entered into force in May 2018. It replaced a 2002 Act (Wet op de Inlichtingen- en veiligheidsdiensten 2002) (Wiv) to reflect both recent technological developments and new security threats. Many groups and individuals were concerned about the increased possibilities for mass, indiscriminate surveillance and bulk collection of personal data that the new Act allows for.1 They claimed it grossly violated the everyday citizen’s right to privacy. Despite a referendum result and public interest litigation seeking the opposite, the Act started applying 1 May 2018.2 Within the right to privacy exists a separate, but related, right to personal data protection.3 This right is enshrined in several European conventions and is listed as a fundamental right in the EU Charter of Fundamental Rights, as well as being protected at a constitutional level in EU Member State jurisdictions.4 As such, it is important to consider how

1

See Bits of Freedom, Dragnet surveillance for secret services, for an English summary of the process available at https://www.bitsoffreedom.nl/dossiers/dragnet-surveillance/. 2 For the Act in Dutch, see: Overheid.nl, ‘Wet op de inlichtingen- en veiligheidsdiensten 2017’ available at https://wetten.overheid.nl/BWBR0039896/2018-05-01. 3 Personal data is ‘any information relating to an identified or identifiable natural person’ (GDPR, Article 4(1)). Data protection entails legal obligations to keep this information safe and secure through various processes when it is collected, processed and stored. 4 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), as amended, ETS 5 (‘ECHR’), Article 8; Charter of Fundamental Rights of the European Union (2012), 326/02 (‘EU Charter’), Article 7; Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1985), ETS 108 (‘Council of Europe Convention 108’).

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the ISS Act 2017 could threaten someone’s right to data protection. In the Explanatory Memorandum submitted with the original bill, there is an in-depth assessment of the bill’s adherence to privacy and data protection standards according to the European Convention of Human Rights and European Court of Human Rights.5 Scholars, too, have conducted such assessments.6 Despite the EU having strict, influential data protection laws that have been directly implemented into Dutch national law with the application of the General Data Protection Regulation (GDPR) in May 2018, there has been little investigation into how the ISS Act 2017 is compatible—or not—with specifically EU data protection principles. Granted, EU law may not extend to Member State security and intelligence law.7 This does not, however, disqualify EU data protection law from setting standards and providing guidance for those writing, reviewing or implementing laws enabling mass surveillance. As such, it is a worthy and important exercise to look at the ISS Act 2017 through the lens of EU data protection law. This chapter does not purport to consider international conventions, and Council of Europe instruments and case law, in addition to EU law. Instead, it distinguishes itself by focusing on EU law as interpreted by the Court of Justice of the European Union (CJEU). The Court of Justice does refer to jurisprudence from the European Court of Human Rights, as mentioned below. Indeed, the Council of Europe and EU data protection law regimes are intertwined, but increasingly separate.8 For several reasons, this chapter focuses on core data protection principles as informed by EU law and jurisprudence. This focus is in part because the EU data protection regime is particularly well-developed, influential and has much relevant case law. It is also because the EU Charter enshrines data protection as an autonomous fundamental right within the EU. EU law and the EU Charter of Fundamental Rights apply only to EU institutions and Member States when they are implementing EU law.9 Dutch security and intelligence services do not fall within the scope of the Dutch Data Protection Act, so it does not apply to them.10 However, EU data protection principles as considered, developed and enshrined in the 2016 GDPR (that replaced the 1995 Data Protection Directive in May 2018), and interpreted by the CJEU and the European Data Protection Board, which supervises the application of EU data protection law, can inform how the relevant bodies should

5

Explanatory Memorandum, available at https://www.rijksoverheid.nl/documenten/ kamerstukken/2016/10/28/memorie-van-toelichting-inzake-wijziging-wet-op-de-inlichtingen-enveiligheidsdiensten. 6 In English, see, e.g.: IViR, Eijkman, Eijk and Schaik – Dutch National Security Reform Under Review: Sufficient Checks and Balances in the Intelligence and Security Services Act 2017?, March 2018; Eijkman 2018. 7 Consolidated version of the Treaty on European Union (2012), 326/01 (‘TEU’), Article 4(2). 8 Kokott and Sobotta 2013. 9 TEU, Article 4(2). 10 IViR, Eijkman, Eijk and Schaik – Dutch National Security Reform Under Review: Sufficient Checks and Balances in the Intelligence and Security Services Act 2017?, March 2018, p. 18.

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process the personal data they collect. Such an approach has been advocated by other scholars.11 Collecting personal data is per se an interference in the fundamental rights to privacy and data protection. These are not absolute rights, however, and may be limited in specific situations. The CJEU has increasingly made pronouncements on Member State law that covers security issues.12 Indeed, the Court has recently demonstrated that it does not consider itself limited by the national security exception.13 In certain judgements and opinions, the CJEU has had to balance a State’s security interests with fundamental rights (usually to privacy and data protection).14 It has shown a trend towards heightened protection of personal data that is processed for security purposes. This chapter first traces the development of the ISS Act 2017. It then assesses the extent to which the Act adheres to cornerstone data protection principles, as informed by EU law.

12.2

Background

The ISS Act 2017 has been in development since 2013. Before drafting a bill for the new act, a special state committee (the Dessens Committee) evaluated the 2002 Wiv and made recommendations for its revision. The Committee published its findings in a report in December 2013.15 In July 2015, the draft legislative proposal was open to online consultation by members of the public. Many stakeholders commented on the draft during this period. In April 2016, the Dutch Parliament approved the draft proposal submitted by the Minister of Defence and the Minister of the Interior and Kingdom Relations. The proposal was then sent to the House of

‘Therefore, the general safeguards in data protection law that can be derived from the case law, including those as elaborated in rules not applicable as such to national security, are guidelines for the testing of data processing in the context of national security’. – van Eijk and Ryngaert, Expert Opinion 2017, https://www.ivir.nl/publicaties/download/Expert_opinion_CTIVD.pdf, p. 7; in the context of open source intelligence in the ISS Act: ‘one might consider applying safeguards from other fields of law, such as general data protection law’. - IViR, Eijkman, Eijk and Schaik – Dutch National Security Reform Under Review: Sufficient Checks and Balances in the Intelligence and Security Services Act 2017?, March 2018, p. 47. 12 Joined Cases Digital Rights Ireland and Seitlinger and Others, Joined Cases C-293/12 and C-594/12, 2014, ECLI:EU:C:2014:238; Maximillian Schrems v Data Protection Commissioner, Case C-362/14, 2015, ECLI:EU:C:2015:650; Joined Cases Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others, C-203/15 and C-698/15, 2016, ECLI:EU:C:2016:970; Draft agreement between Canada and the European Union—Transfer of Passenger Name Record data from the European Union to Canada, Opinion procedure 1/15, 2017, ECLI:EU:C:2017:592. 13 Ryngaert and van Eijk 2019, at 71. 14 Vedaschi 2018, at 125. 15 De Commissie evaluatie Wiv 2002, ‘Evaluatie: Wet op de inlichtingen- en veiligheidsdiensten 2002’, 2013, available at https://www.internetconsultatie.nl/wiv/document/1717. 11

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Representatives (Tweede Kamer), and the independent Council of State (De Raad van State) released an advisory report on the law in September 2016.16 This report resulted in a modified proposal, the main change being stronger independent supervision by a review committee. The House of Representatives and the Senate (Eerste Kamer) approved the bill in February and July 2017, respectively. Nonetheless, the bill had caused much public outcry, largely due to its so-called ‘dragnet’ surveillance that allowed for the indiscriminate collection of communications data.

12.3

Content of the New Law

The ISS Act 2017 has expanded the powers of the General Intelligence and Security Service (Algemene Inlichtingen en Veiligheidsdienst) (AIVD) and the Military Intelligence and Security Service (Militaire Inlichtingen en Veiligheidsdienst) (MIVD) to conduct mass surveillance. There are several notable changes from the 2002 Wiv, which could further threaten an individual’s right to data protection.17 Articles 48 to 50 ISS Act 2017 allow for the bulk interception and collection of communications data (both meta- and content data). They enshrine the ability to tap all telecommunications data, using any instrument and regardless of the location where the communication took place. The Minister of Defence and/or the Minister of the Interior and Kingdom Relations must approve each of the three tiers for this data gathering process: collection, pre-investigation and analysis. They initially give approval for one year, but this could be extended for an indefinite period. The data collected may be stored for three years after encryption.18 Irrelevant data or that which has not had its relevancy established must be destroyed within one year of collection.19 The Act provides for an expanded duty to cooperate for communication providers; what constitutes such a provider is very broad.20 Indeed, there exists a duty for every provider, including, for instance, cloud services and web hosts.21 These providers must give advice on the best way to place a tap, and must cooperate with

Raad van State, ‘Advies W04.16.0097/I’, 2016 available at https://www.raadvanstate.nl/ adviezen/advies.html?id=12331. 17 Dorien Verhulst, ‘De Wiv 2017: sleepnet, aftapconsultancy en twijfelachtig toezicht’, Rechtspraktijk 2017, 182–186. 18 ISS Act 2017 Article 48(5). 19 Ibid., Article 27(1). 20 Ibid., Article 52 and Article 54. 21 Dorien Verhulst, ‘De Wiv 2017: sleepnet, aftapconsultancy en twijfelachtig toezicht’, Rechtspraktijk 2017, 182–186, p. 183. 16

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the placement and maintenance of this tap.22 They must provide access to data stored in the cloud.23 Moreover, they are obliged to provide immediate access to previous or future metadata from a user, as well as her name, address and more residential information.24 Providers must cooperate with decrypting encrypted personal data.25 The penalties for non-cooperation are high. Not cooperating with any of the aforementioned requests can result in a fine of EUR 82,000 or a maximum prison sentence of two years.26 The providers also have an obligation of non-disclosure.27 As such, the whole system and actors involved lacks transparency. The ISS Act 2017 expands the intelligence services’ authorisation to hack systems. They may obtain authorisation to enter or investigate any automated system, and to install technical measures for observation or surveillance.28 There is no specific time limit for data collected by hacking. Any malware must be removed after use.29 It is unclear whether the obligation to cooperate with bulk interception also applies to hacking.30 Furthermore, the Act expands the supervisory powers of the Review Committee for the Intelligence and Security Services (De Commissie van Toezicht op de Inlichtingen- en Veiligheidsdiensten) (CTIVD). The Committee must have at least four members; they do not need any specific legal or technical expertise.31 The members are selected through a process that ultimately needs government approval. The Committee exercises three forms of supervision: publishing supervisory reports, researching information provided by whistle-blowers and overseeing a complaints procedure. The Review Committee, in not allowing for wholly independent supervision or judicial supervision, is problematic under EU data protection law.

12.4

A Referendum and Subsequent Court Action

In March 2018, Dutch citizens had the opportunity to take part in a consultative referendum on the ISS bill. Approximately 6,700,000 people, or 51% of eligible voters, voted on the draft proposal. Roughly 49% of the voters voted against the

22 23 24 25 26 27 28 29 30 31

ISS Act 2017, Articles 52 and 53. Ibid., Article 53. Ibid., Articles 55 and 56. Ibid., Article 57. Ibid., Article 143. Ibid., Article 135. Ibid., Article 45. Ibid., Article 45(7). Ibid., Articles 53 and 45. Ibid., Articles 98–99.

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proposal, and about 46% were in favour of it.32 The result of such referendums is non-binding, but the government had confirmed that they would take the result into account.33 Indeed, the House of Representatives thereafter made minor edits to the draft proposal. A number of claimants, comprising pro-privacy NGOs and public interest litigation groups (including Greenpeace, Privacy First, Bits of Freedom and the Public Interest Litigation Project) filed a summary procedure against the Dutch State.34 They wanted an injunction on the May 2018 entry into force of the ISS Act 2017. The District Court of The Hague decided there was no valid argument for the delayed enforcement of the ISS Act 2017.35 The Court considered whether EU fundamental rights were applicable in the case and ruled that they were not, as EU Member States have authority over their own national security.36 The claimants argued that Article 8 ECHR, on the right to private and family life, prohibited such a mass breach of the right to privacy. The Court referred to Article 8(2) ECHR, which provides that the right to privacy may be limited if this is necessary in a democratic society or necessary for national security purposes, both of which were implicated in the ISS Act 2017. Thirdly, the applicants invoked the European Court of Human Rights’ decision in Zakharov v Russia, which outlines specific requirements for the lawful interference with the right to privacy.37 It is necessary to test all EU data protection legislation against these requirements. Safeguards must be adequate and effective, and comply with certain minimum requirements. In response, the Court ruled that an important piece of legislation ought not to be reviewed in summary judicial proceedings. Instead, the House of Representatives and the Senate should conduct such a review. The legislator has a wide margin of discretion to consider all arguments, which does not leave scope for a complete judgement on the legislation by the Court. As such, the ISS Act 2017 started applying in May 2018.

Kiesraad.nl, ‘Uitslag referendum over Wiv: meerderheid tegen’, 29 March 2018, available at https://www.kiesraad.nl/actueel/nieuws/2018/03/29/uitslag-referendum-over-wiv-meerderheidtegen. 33 BBC News, Dutch referendum: Spy tapping powers ‘rejected’, 22 March 2018, https://www. bbc.com/news/world-europe-43496739, accessed 1 February 2019. 34 District Court of The Hague, 26 June 2018 (ECLI:NL:RBDHA:2018:7459) summary proceedings, available at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA: 2018:7459. 35 Ibid. 36 Ibid., 4.1 cit. Article 4(2) TEU. 37 Roman Zakharov v. Russia, ECtHR Grand Chamber, No. 47143/06, 4 December 2015. 32

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The ISS Act 2017 and EU Data Protection Principles

This section looks at core data protection principles under European law, including EU law, and assesses the degree to which the data processing that the ISS Act 2017 provides for adheres to these principles and rules. The EU law spans the EU Charter on Fundamental Rights, the GDPR, the ePrivacy Directive and important CJEU jurisprudence. It is the jurisprudence that is particularly relevant for assessing the data processing articles in the Act.38 Cornerstone data protection principles, evident not only in EU law, but also in the ECHR and European Court of Human Rights jurisprudence and the Council of Europe Convention 108 on data processing, include the following: (i) lawful processing, (ii) purpose specification and limitation, (iii) data quality and (iv) fair data processing.39 Beyond those basic principles, EU data protection law includes specific rules on, inter alia, processing sensitive data and having independent supervisory authorities. The latter two areas are also important in data processing for national security purposes. EU data protection law is broad-ranging and has many specific, technical rules. This section focuses on major data protection principles that inform these laws as a guide for data processing within the scope of intelligence-gathering and security in the Netherlands. It focuses mostly on the principles of purpose specification and data quality.

12.5.1 Lawful Processing The principle of lawful processing entails that there must be a legal basis for the processing of personal data. Any interferences in a data subject’s right to data protection must be justified, be in accordance with the law and pursue a legitimate aim that it is necessary in a democratic society. In the EU, these interferences of the EU Charter rights must respect the essence of the right and meet the objectives of general interest in the Union.40 In the ISS Act 2017, some unjustified interferences could occur, as delineated below. This is despite the fact that the Act per se provides that data processing shall be performed ‘properly, carefully and in compliance with the law’.41 38

Joined Cases Digital Rights Ireland and Seitlinger and Others, Joined Cases C-293/12 and C-594/12, 2014, ECLI:EU:C:2014:238; Maximillian Schrems v Data Protection Commissioner, Case C-362/14, 2015, ECLI:EU:C:2015:650; Joined Cases Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others, C-203/15 and C-698/15, 2016, ECLI:EU:C:2016:970; Draft agreement between Canada and the European Union—Transfer of Passenger Name Record data from the European Union to Canada, Opinion procedure 1/15, 2017, ECLI:EU:C:2017:592. 39 See Article 5 GDPR. 40 EU Charter, Article 52(1). 41 ISS Act 2017, Article 18(2).

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12.5.2 Purpose Specification and Limitation Before processing data, the data controller or processor needs to specify an explicit and legitimate purpose for the processing. Using that personal data for a purpose different from the original one requires an additional legal basis if the two purposes are incompatible with each other. Furthermore, transferring personal data to third parties constitutes a new purpose and thus needs a new legal basis. The GDPR stipulates that personal data shall be collected for ‘specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes’.42 The ISS Act 2017 specifies that data shall only be processed for a specific objective and only to the extent necessary to implement properly the ISS Act or the Dutch Security Screening Act (Wet veiligheidsonderzoeken).43 In clarifying the meaning of this article, it is evident from the Explanatory Memorandum that there are issues with its construction.44 Specifically, that personal data is gathered for one particular objective ‘does not mean that the information can only be used for that objective in the future’.45 This re-purposing without an additional legal basis contravenes the principle of purpose limitation. The ISS Act does provide that data not of interest or no longer of interest for its original purpose shall be deleted.46 It also provides for some form of proportionality.47 The next section looks more closely at this by outlining the amount and type of data that is collected.

12.5.3 Data Quality The notion of data quality entails that personal data that is collected and processed must be adequate, relevant and not excessive for its purpose.48 It also limits the length of time personal data may be retained. Specifically, personal data must not be stored in a way that allows for data subjects to be identified if this storage is for longer than is necessary for the purposes for which the personal data is processed.49 The ISS Act 2017 threatens both these notions of data minimisation and storage limitation.

42

GDPR Article 5(1)(b). Article 18(1); For the Act in Dutch, see: Overheid.nl, ‘Wet veiligheidsonderzoeken 2015’ available at https://wetten.overheid.nl/BWBR0008277/2015-09-01. 44 Explanatory Memorandum, p. 38. 45 Explanatory Memorandum, p. 38. 46 ISS Act 2017, Article 20(1). 47 Explanatory Memorandum, p. 39 acknowledging Article 8 ECHR. 48 GDPR Article 5(1)(c). 49 GDPR Article 5(1)(e). 43

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Data Minimisation

In the 2014 Digital Rights Ireland case, the CJEU assessed the legality of the 2006 Data Retention Directive (DRD) and ultimately annulled it.50 The Court largely considered the balance between security and data protection, which reflects the same balancing issues that the ISS Act 2017 presents. The DRD had been enacted in quick response to the 2004 Madrid bombings and 2005 London terrorist attacks. It obliged electronic communication service providers to retain certain communications data for six months to two years to help detect, investigate and prosecute serious crime and to safeguard public security.51 The CJEU ruled that the Directive violated the principles of proportionality and necessity.52 The data retention requirements entailed a ‘wide-ranging’ and ‘particularly serious’ interference with the fundamental rights to privacy and personal data protection in the EU legal order.53 This was a particularly serious interference because the Directive did not outline clear and precise rules on the limits of the interference with these fundamental rights.54 The subsequent, related Tele2-Watson case has only echoed these rulings.55 Similar to the ISS Act 2017, the DRD had problematic provisions allowing—or necessitating—blanket data retention. Service providers were required to store the personal telecommunications data of all clients and not just that of suspicious persons.56 The untargeted, bulk interception of Dutch individuals’ personal communication that the ISS Act 2017 allows certainly constitutes a serious interference in these individuals’ fundamental rights to privacy and data protection. As shown in the CJEU decisions mentioned, security concerns do not outweigh indiscriminate data retention in particular circumstances, comparable to those that the ISS Act provides for.

12.5.3.2

Data Retention

The CJEU has recently considered issues surrounding data retention in terms of the DRD and how Member States implemented the Court’s decision to quash it, as well as permissible retention times in EU-Canada data transfer arrangements for security 50

Joined Cases Digital Rights Ireland and Seitlinger and Others, Joined Cases C-293/12 and C-594/12, 2014, ECLI:EU:C:2014:238 (Digital Rights Ireland), para 73; Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (DRD). 51 DRD Article 6. 52 Digital Rights Ireland, paras 65 and 69. 53 Digital Rights Ireland, para 65. 54 Ibid. 55 Joined Cases Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others, C-203/15 and C-698/15, 2016, ECLI:EU:C:2016:970. 56 Digital Rights Ireland, para 37.

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purposes. Its findings, which emphasise that retention times should be limited, run contrary to the ISS Act 2017’s provisions on data storage and deletion. The GDPR provides that personal data shall be ‘kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed’.57 Further, the 2002 ePrivacy Directive on privacy and electronic communications provides that EU Member States shall ensure that storing data or accessing stored data ‘is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information […] about the purposes of the processing’.58 The ePrivacy Directive allows Member States to adopt legislation that restricts the rights and obligations in the Directive ‘when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security’.59 Most of the rights in that Directive pertain to protecting personal data. It could be argued that, where EU law is directly applicable, the ISS Act 2017 meets a general interest objective of taking action to reduce or prevent serious crime, organised crime and terrorism. In Digital Rights Ireland, however, the CJEU decided that this aim of the DRD did not justify the level of data retention that the DRD necessitated.60 Similarly, the Court maintained in 2017—in an opinion on an envisaged agreement obliging EU air carriers to transfer personal data on EU passengers to Canadian authorities for security and counter-terrorism purposes— that such surveillance measures should only be allowed subject to extremely strict rules governing their enactment.61 Even when weighed against serious security and anti-terrorism concerns, it appears that protecting someone’s fundamental right to data protection is considered hugely important within the EU legal order. Accordingly, the ISS Act 2017 would need both de jure and de facto to improve its currently vague and potentially wide-ranging technical measures to better protect the personal data that Dutch authorities access and process. The ISS Act 2017 states that data ‘that are not of interest or no longer of interest in light of the objective for which they are being processed shall be deleted’.62 However, the Explanatory Memorandum suggests that deletion does not mean destruction. Indeed, it stipulates that deletion ‘means that the data are no longer accessible for regular operational processes (i.e. for the performance of duties by the services)’.63 Deleted data ‘can actually still be used again under certain circumstances if the objective for which they were originally acquired has become applicable again or possibly for a different objective, provided of course that the

57

GDPR Article 5(1)(e). Commission Directive 02/58 (ePrivacy Directive), OJ 2002 L 201, Article 5(3). 59 Digital Rights Ireland, para 10 cit. ePrivacy Directive Article 15(1), see also Recital 4 of the preamble. 60 Digital Rights Ireland, para 51. 61 Opinion 1/15 of the Court of Justice (Grand Chamber), ECLI:EU:C:2017:592, 26 July 2017. 62 ISS Act 2017, Article 20(1). 63 Explanatory Memorandum, p. 42. 58

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general requirements on data processing are met’.64 Using ‘deleted’ data for an objective different from the one for which it was originally collected is per se incompatible with EU data protection law. The notion of deletion being neither destruction nor anonymisation raises serious questions about how long this personal data is being retained. This element of the Dutch surveillance law violates the principles of necessity and proportionality to the extent that an indiscriminate amount of anyone’s personal data could be retained for a period of time exceeding the limits of what is necessary.65 Moreover, the CJEU has questioned the effectiveness of data retention in investigating serious crime.66 In sum, not only does the ISS Act 2017 threaten principles of data quality including data minimisation and storage limitation, but this excessive retention likely does not help achieve the Act’s purposes.

12.5.4 Fair Data Processing To adhere to the fair data processing principle, personal data must be processed in a transparent manner, meaning that the data subject is informed of what will happen with her personal information. This also establishes trust between the data controller and data processor. The controller or processor should additionally be accountable for its processing activities. EU data protection law also has a special, strict regime about processing sensitive data. As a general rule, the GDPR prohibits processing of sensitive data, that is, personal data ‘revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation’.67 There are some limited exceptions to this rule.68 The EU legal framework also uniquely necessitates the existence of independent supervisory authorities in each Member State. It is concerning that there is no scope for judicial review in the ISS Act 2017; review is instead done by the CITVD, outlined above. It would be in line with EU data protection law to have a court or wholly independent body that could conduct reviews, and allow or deny national authorities access to that data. Such a process would limit access to data that is strictly necessary to achieve the Act’s aim of investigating and detecting serious crime and terrorism.

64 65 66 67 68

Ibid., p. 43. Digital Rights Ireland, paras 63–64. Pedersen et al. 2018, at 161. GDPR Article 9(1). Ibid., Article 9(2).

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283

Conclusion

The process leading to the enactment of the Dutch ISS Act 2017 shows the difficulty in achieving twin aims of gathering intelligence for security purposes whilst protecting the privacy of people whose personal data is collected for this purpose. Public outcry, the referendum and subsequent court cases that have called for the law to be much more protective of individuals’ privacy show that many stakeholders are extremely concerned about the Act and how it is implemented. Nonetheless, the Act still allows for unjustified interferences in people’s fundamental right to data protection to occur. Using EU data protection law as a guide, the Dutch ISS Act 2017 would not adhere to some of its cornerstone principles of purpose limitation, data minimisation and limited data retention. Similar laws in other European countries seem only to be increasing their authorities’ ability to conduct potentially unlawful mass surveillance. Coupled with new security threats and the enhanced capability of technologies to process large amounts of personal data, the Dutch ISS Act 2017 is on shaky ground in terms of protecting fundamental human rights. It appears that not only the Netherlands is following this dangerous trend. To enable rights protection and make their surveillance laws useful in practice, the Netherlands law-makers ought to review the ISS Act 2017 in light of EU data protection law. EU data protection standards as articulated in detail in the GDPR and its commentaries, and further honed in CJEU decisions, provide ideal guidance when balancing security and data protection concerns to result in a law effective at safeguarding the two.

References Eijkman QAM (2018) Access to Justice for Communications Surveillance and Interception: Scrutinising Intelligence-Gathering Reform Legislation. Utrecht Law Review 14(1):116–127 Kokott J, Sobotta C (2013) The distinction between privacy and data protection in jurisprudence of the CJEU and the ECtHR. International Data Privacy Law 3(4):222–228 Pedersen AM, Udsen H, Jakobsen SS (2018) Data retention in Europe – the Tele 2 case and beyond. International Data Privacy Law 8(2):160–174 Ryngaert C, van Eijk N (2019) International cooperation by (European) security and intelligence services: reviewing the creation of a joint database in light of data protection guarantees. International Data Privacy Law 9(1):61–73 Vedaschi A (2018) Privacy and data protection versus national security in transnational flights: the EU-Canada PNR agreement. International Data Privacy Law 8(2):124–139

Table of Cases*

INTERNATIONAL Ad Hoc Arbitration Libya-Texaco arbitration (1977), 82n57 Court of Justice of the European Union Judgments Digital Rights Ireland and Seitlinger and Others, Joined Cases Nos. C-293/12 and C-594/12, 2014, 274n12, 278n38, 280, 281, 282n65 Maximillian Schrems v. Data Protection Commissioner, Case No. C-362/14, 2015, 274n12, 278n38 Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others, Case Nos. C-203/15 and C-698/15, 2016, 274n12, 278n38, 280 Opinions Canada-EU data exchanges, 26 July 2017, 280–281 EU General Court People’s Climate Case, 232–233 European Commission of Human Rights Austria v. Italy, Application No. 788/60, 11 January 1961, 264n99 European Court of Human Rights Al-Skeini and Others v. UK, Application No. 55721/07, 7 July 2011, 259n66 * The Table of Cases was compiled by Ms C.C. Diepeveen, Middelburg, The Netherlands, e-mail: [email protected]

© T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3

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Brincat and Others v. Malta, Application Nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, 24 July 2014, 230n24 Cyprus v. Turkey, Application No. 25781/94, 12 May 2014, 264n98 Dahlab v. Switzerland, 15 February 2001, 201n120 Ergi v. Turkey, Application No. 23818/94, 28 July 1998, 258n63 Fadeyeva v. Russia, Application No. 55723/00, 9 June 2005, 230n23, n24, 231n33 Ilascu and Others v. Moldova and Russia, Application No. 48787/99, 8 July 2004, 255n39, n40 Isayeva v. Russia, Application No. 57950/00, 24 February 2005, 256n45 Ivantoc and Others v. Moldova and Russia, Application No. 2368/05, 15 Nov 2011, 255n39 Kelly and Others v. United Kingdom, Application No. 30054/96, 4 May 2001, 259n64 Kerimova and Others v. Russia, Application No. 17170/04, 3 May 2011, 259n66 Khashiyev and Akayeva v. Russia, Applications No. 57942/00 and 57945/00, 259n66 Lautsi and Others v. Italy, 3 November 2009 and 18 March 2011, 201n120, 202n125 Lopez Ostra v. Spain, Application No. 16798/90, 9 December 1994, 231n29 McCann and Others v. the United Kingdom, Application No. 18984/91, 27 September 1995, 255n42, n43, 258n62 Makaratzis v. Greece, Application No. 50385/99, 20 December 2004, 256n47 Mastromatteo v. Italy, Application No. 37703/97, 24 October 2002, 231n31 Nicklinson and Lamb v. United Kingdom, Application Nos. 2478/15 and 1787/15, 16 July 2015, 232n36 Öneryildiz v, Turkey, Application No. 48939/99, 30 November 2004, 230, 231 Osman v. United Kingdom, Application No. 23452/94, 28 February 1998, 267, 268 Refah Partisi (The Welfare Party) and others v. Turkey, 13 February 2003, 201n120 Ringeisen v. Austria, Application No. 2614/65, 16 July 1971, 263n96 Şahin v. Turkey, 10 November 2005, 201n120, n123 Schenk v. Germany, Application No. 42541/02, 9 May 2007, 263n95 Sejdovic v. Italy, Application No. 56581/00, 1 March 2006, 263n97 Tanrikulu v. Turkey, Application No. 23763/94, 8 July 1999, 259n66 Tatar v. Romania, 236n63 Tyrer v. United Kingdom, Application No. 5856/72, 25 April 1978, 166n89 Zakharov v. Russia, Application No. 47143/06, 4 December 2015, 277

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287

Inter-American Court of Human Rights Advisory Opinions Risks posed by construction and use of new big infrastructure to the marine environment and human habitat of the Great Caribbean region (2017), 88–89 Same-sex marriage (2017), 193, 194 Judgments Atala Rifo vs. Chile, 19 February 2011, 197 Bámaca Velásquez v. Guatemala, 25 November 2000, 202 Duque v. Colombia, 26 February 2016, 198 Murillo et al. (“In Vitro Fertilization”) v. Costa Rica 28 November 2012 (Merits), 193–194 Resolution on compliance, 26 February 2016, 194 Murillo et al. v. Costa Rica: Protecting Life ‘From Contraception’ in the Inter-American System, 8 May 2012, 198 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 31 August 2001, 202n128 International Court of Justice Advisory Opinions Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall Opinion), 9 July 2004, 260n74 Legality of the Threat or Use of Nuclear Weapons (Nuclear Weapons Opinion), 8 July 1996, 260n74 Judgments Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), 18 August 1972, 262n84 Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro, Bosnian Genocide Case), 26 February 2007, 253–254, 257 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), 1 April 2011, 261n78 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), 19 April 2017 262, 268n122 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda, Armed Activities Case), 3 February 2006, 260n74 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America, Nicaragua case) 27 June 1986, 254

288

Table of Cases

Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 260n74 International Criminal Court Prosecutor v. Muthaura, Kenyatta and Ali, Case No. ICC-01/09-02/11, 15, 125, 136–137 Prosecutor v. Ruto and Sang, Case No. ICC-01/09-01/11, 15 January 2016, 124 International Criminal Tribunal for Rwanda Prosecutor v. Akayesu, Case No. ICTR-96-4-T, 2 September 1998, 129 UN Human Rights Committee Abubakar Amirov and Aïzan Amirova v. Russian Federation, Case No. 1447/2006, 22 April 2009, 258n60 WTO Dispute Settlement China - Certain Measures Concerning Protection of Intellectual Property Rights (ongoing), 33 United States – Certain Measures on Steel and Aluminium Products (ongoing), 32

NATIONAL Netherlands Supreme Court Danikovic c.s. v. State of the Netherlands, 242n95 Waterpakt v. State of the Netherlands, 239n79 Court of Appeal The Hague Urgenda v. State of the Netherlands, 9 October 2018, 224, 225–226, 227–229, 230–232, 233–241, 243 District Court of Amsterdam X v. State of the Netherlands and Amsterdam Municipality, 7 February 2018, 241–242 District Court of The Hague ISS Act 2017, 26 June 2018, 277 Urgenda v. State of the Netherlands, 24 June 2015, 224–225, 226–227, 228, 229, 234, 238, 242 Russia Constitutional Court Yukos case, 17 January 2017, 264

Table of Cases

Sweden Stockholm Court of Appeal Magnolia case, 23 January 2018, 233 Stockholm District Court Magnolia case, 30 June 2017, 233 Switzerland Bundesverwaltungsgericht Klimaseniorinnen case, 233 United States Supreme Court Paquette Habana case (1900), 53, 54

289

Index*

A ABC Pact (Argentina, Brazil and Chile, 1915), 77 Accountability for shooting down flight MH17 JIT investigations into, 248–249 of Russia, 245–246, 249–250, 251–252, 260–265 investigations duty, 253, 258–260 involvement in shooting down, 248, 252–258 of Ukraine, 246, 247, 265–268 Adams, John Quincy, 49 Africa, populism in, 125 Agamben, Giorgio, 123, 125, 126, 127, 128 on circumcision, 131 on civil war, 132–134, 136 on oaths, 131 on people concept, 129–130 on violence, 139 Agricultural products, international trade in, 81 Ahlberg, Beth Maina, 130 Airspace reasonable measures required for safety of, 265–266 Ukrainian failure to close, 265, 266–267 See also Civil aviation ALBA-TCP (Bolivarian Alliance for the Peoples of the Americas), 74, 84–85, 91–92 Albertazzi, D., 149 Albright, Madeleine, 113–114 Alliance Defending Freedom (ADF), 197–198

Alston, Philip, 9, 102–103, 111, 125–126, 156, 172 Alvarado, Fabricio, 193, 194–195 Amar, A.R., 54 American Convention on Human Rights, Venezuelan withdrawal from, 91, 163 Amnesty International on populist challenges to human rights, 154 on right to security, 159 Anarchy, 135 Anghie, Antony, 81–82n57 Anti-globalism populist, 71, 90–91, 106, 109, 216 of Trump, 10, 20, 58 Anti-immigration sentiments, populist, 70, 90, 157–158 Anti-imperialism, of Latin American populism, 116 Arbitration, 265 Argentina military dictatorship in, and Evangelical Christians, 187–188n55 Peronismo in, 69–70, 73, 76–80, 91 Aristotle, 127, 133 Articles of State Responsibility, 253 Asia, populism in, 46 Attribution of conduct to a state, 253–258 Aufstehen movement (stand up, Germany), 117 Australia, Russia held accountable for shooting down of flight MH17 by, 245–246, 249–250, 251–252, 263

*

The Index was compiled by Ms C.C. Diepeveen, Middelburg, The Netherlands, e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2019 J. E. Nijman and W. G. Werner (eds.), Netherlands Yearbook of International Law 2018, Netherlands Yearbook of International Law 49, https://doi.org/10.1007/978-94-6265-331-3

291

292 Autonomy theories, in international relations, 78, 79 B Backlash of globalisation, 8, 9 populist, 7 Balancing of human rights, 160 with security concerns, 274, 277, 280, 283 Baudet, Thierry, 4–5 Bedau, H.A., 218n38 Bellingcat, investigation into shooting down of flight MH17 by, 249 Benjamin, Walter, 136, 138 Bianchi, Susana, 187n55 Bikundo, Edwin, 15 Bílková, Veronika, 9, 15–16 Bolivia Constitution (2009), 86, 87 Morales government in, 70, 85–89, 92, 163–164 Bolsonaro, Jair, 90, 177 Bolton, John, 168 Bossche, Peter Van den, 33n66 Brandes, Tamar Hostovsky, 102 Brazil, Bolsonaro government in, 90n99 Brown, Wendy, 24, 25 Bryan, William Jennings, 38n87, 49, 50, 51–52, 65 BUK missiles, operation of, 254, 257 C Caesar, Julius, 11 Cámpora, Héctor, 79n43, 80 Cancado Trindade, A.A., 202 Canetti, Elias, 12 Canovan, M., 148 Cárdenas, Lázaro, 75–76n22, 82n57 Casanova, José, 187 Castañeda, Jorge G., 83 Catholic Church in Argentina, 187–188n55 in Chili, 186 ‘Caudillos’ (prototype of Latin American dictators), 72n9, 112n82 Charismatic leadership of Evangelical Christians, 181, 184 of populist movements, 22–23, 64 Charismatic revival, in Latin American Protestantism, 180–181

Index Charter of Economic Rights and Duties of States (1974), 81–82 Art. 2, 81–82n57 Charter of Fundamental Rights (EU), on data protection rights, 273 Chávez, Hugo, 83–84, 152, 169 Chicago Convention, see Convention on International Civil Aviation Chili, Pinochet dictatorship in, and Evangelical Christians, 185–188 Chimni, B.S., 92n111 China, Trump’s views/policies on trade policies of, 27, 29, 31–33 Christian Fellowship of Churches, Confraternidad Cristiana de Iglesias (CCI), 188, 189 Cicero, Marcus Tullius, 11 Circumcision Agamben on, 131 female, 127 Mungiki views on, 130–134, 140 Civil aviation dispute settlement in, 260–263 safety of, 252–253, 269 obligations of States, 265–267 offences against, 257–258 Civil war, Agamben on, 132–134, 136 Cleen, Benjamin de, 110 Climate change litigation, 224–226, 234–237 Admissibility of claims, 226–228 and human rights law, 224, 243 application of ECHR, 229–233, 238–240 and trias politica, 225, 238–243 Clinton, Hillary, Trump’s criticism of, 35 Cochabamba declaration (draft, Bolivia), 88, 89 Cold War Evangelical Christians in, 185 Latin-American non-alignment in, 76–77, 80 Colombia Constitution Art. 1, 191 Art. 19, 191 Evangelical Christian political activism in, 189–192, 199 persecution of non-Catholics in, 179 Communities, Evangelical, 183–184

Index Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), 29–30 Compromissory clauses, 260–261 Contras (Nicaragua), effective control of US over, 254 Convention on International Civil Aviation (Chicago Convention, 1944), 252–253, 261 Annex 11, 265–266 Annex 15, 266 Annex 17, 266 Art. 3bis, 253 Art. 84, 261 on obligations of States, 265–266 Convention for the Suppression of Acts Against the Safety of Civilian Aviation (Montreal Convention, 1971), 249, 253 Art. 1, 257 Art. 6, 259 Art. 10, 258 Art. 11, 258 Art. 13, 258 on information duties of states, 258 Russian reservation to compromissary clause in, 261 Convention for the Suppression of the Financing of Terrorism (ICSFT, 1999), 261, 262–263 Art. 2, 262 Correa, Rafael, 152, 164 Costa Rica, Evangelical Christian opposition to LGBTI rights/gender equality in, 192–196 Council of Europe, Venice Commission, 163 Court of Justice of the European Union (CJEU), 273 on data protection rights, 274, 280–281, 282 Cozzolino, A., 42 Crawford, James, 98, 103 Crimes against humanity, 127 Criminal law, see International criminal law Criminal offences, State duties to prevent, 267 Criminal responsibility for shooting down flight MH17, 248–249, 250–251 See also Accountability Critique of Violence (Benjamin), 136 D Dahrendorf, Ralf, 148 Data protection EU standards/jurisprudence on, and Netherlands ISS Act, 272, 273, 274, 278–283 See also Personal data

293 Data Retention Directive, EU (DRD), annulment by CJEU of, 280 De la Torre, C., 152 Declaration on the Rights of Indigenous Peoples (UN, 2007), 87 Demagogy, use of, 6, 124 Democracy, 123 concerns over threats to, 12–13 deficit of in global economic governance, 109 in human rights law, populist views on, 15, 143, 145, 166–171, 172 and populism, 22, 115, 123–124, 130–134 protection of minorities in, 170 Dependency theory, 78–79 Depoliticisation, 108–109 Derogations of human rights, on emergency grounds, 159–160 Derrida, Jacques, 135 Development, expansion of concept of, 212, 213–214 Dictatorships in Latin America, and Evangelical Christians, 185–189 Direct democracy, populist promotion of, 169 Discrimination, Wilders’ indictment for, 4 Dispute settlement in civil aviation, 250, 260–263 in international trade, 33–34 negotiations requirement for, 263, 268 Distinction principle of IHL, 256 Domestic remedies, exhausting of, 263 Drago doctrine (1902), 79 Due diligence obligations to ensure safety of civil aviation, 267 to prevent arbitrary killing, 258 Dugard, John, 124 E Earth jurisprudence, 87–89 Eatwell, Roger, 7 Echeverría, Luis, 70, 74, 80–82, 91 Eckes, C., 229n21, 230 Economic populism, 209, 215–216 rise of, 212 on role of law, 212, 217–219 and WDR 2017, 211, 219 The Economist, 104, 111 Economy international governance of, 8, 109, 211, 216, 217–219 neoliberal views of, 24, 37–38, 109 alternative, 20, 25–26, 39, 42 and law, 25 and politics, 212

294 Effective control, of states over non-state actors, 253–254 Einstein, Albert, 12 Electoral politics, Evangelical Christian involvement with, 189–192 Electoral violence, in Kenya, 126, 132, 134–135, 137–138 ‘Elephant graph’ (Milanović), 9 Elites Evangelical Christian attitudes towards, 187, 196 populist antagonism towards, 5, 22, 23, 72, 106, 149–150 and international organisations, 9, 106–110 in United States, 49 Trump’s views of, 14, 35–37, 58, 59 Elitism, 150 of international law, 65, 105–110, 163 Emergency, human rights derogations in case of, 159–160 Environmental protection, and human rights law, 88–89, 230–232 ePrivacy Directive (EU, 2002), 281 Equity, law’s promotion of, 215 Erdogan, Recep T., 152, 157, 167 Essentially contested concepts, 146 Ethnic nationalism, 110 Europe populism in, 12–13, 46, 70, 146, 152 and migration, 157, 158 European Convention on Human Rights (ECHR) Art. 2, 224, 227–228, 229–233, 239, 240, 255, 256, 258, 263, 268 Art. 5, 159 Art. 8, 224, 227–228, 229–233, 239, 240, 277 Art. 9, 201n123 Art. 15, 160 Art. 32, 229n18 Art. 33, 263 Art. 34, 227–228 Art. 35, 263 direct application of, 224, 226–229, 238–239 to climate change litigation, 229–233, 239–240 interpretation of, 229, 240 on right to life, 255, 256, 258 on right to security, 159 on state responsibility over conduct of non-state parties, 255 European Court of Human Rights (ECtHR)

Index on environmental protection issues, 230–232 on freedom of religion, 201n123 individual applications at, 263 inter-state applications at, 263–264 jurisdiction of, 263–264 Orbán’s criticism on, 157 Russian legislation allowing overruling of decisions by, 264 on State obligations to investigate, 258–259 to prevent civilian deaths, 267–268 on State responsibility over non-state actors, 255–256 European Data Protection Board, 273–274 European Union (EU) British vote for withdrawal from (Brexit), 99 data protection standards/jurisprudence Data Retention Directive (DRD), annulment of, 280 and Netherlands ISS Act, 272, 273, 274, 278–283 European Trading Scheme (ETS) of, 236–237 negotiations on trade deal with US, 30 Evangelical Christians in Latin America, 175, 179–184 political mobilisation of, 176–177, 181, 184–192, 193 and populism, 16, 175–176, 177, 183–184, 187, 192–203 human rights criticism, 195–200 Evans, C.M., 201 Extradite or prosecute duties, 259 F Fair processing principle, for personal data, 282 Fascism, European fears of, 12–13 Faustian pact, 134, 138 of violence, 135–136, 140 Federación de Iglesias Evangélicas Chilenas (DIECH), 185–186 Female circumcision, 127 Mungiki views on, 130–131, 140 Fichtelberg, Aaron, 10, 11, 14 Financial crisis (2008), populist rise rooted in, 8, 108 For A Left Populism (Mouffe), 8 Fortuyn, Pim, 4, 5 Foucault, Michel, 23 Framework Convention on Climate Change (UNFCC)

Index emissions reductions agreed in, 234–236 Paris Climate Agreement (2015), 116, 235–236 US withdrawal from, 56 Fraser, Nancy, 24 Free trade neoliberal promotion of, 25 populist views of, 109 public debates on, 117 Trump’s opposition to, 28, 29–31, 35–38, 47, 58, 61, 62–63, 64 Free will, 139 Freedom of religion in Chili, 188 in Colombia, 191 Freemasonry, in Latin America, 178n8 Frenz, Helmut, 186, 187n53 Future, human rights violations in, 230 G G77, 81 G7, statement of support on Russian accountability for shooting down of flight MH17, 250 Die geistige Situation der Zeit (Jaspers), 13 Gellner, Ernest, 147 Gender equality, Evangelical opposition to imposition of, 192–196, 198–199 General Agreement on Tariffs and Trade (GATT), dispute settlement mechanism of, 34 General Data Protection Regulation, EU (GDPR), 273 Art. 4(1), 272n3 Art. 5(1)(b), 279 Art. 5(1)(c), 279 Art. 5(1)(e), 281 Art. 9(1), 282 Art. 9(2), 282 on personal data collection, 279 on personal data retention, 281 on processing of sensitive data, 282 Germany anti-TTIP demonstrations in, 117 left-wing populism in, 117n109 Gijselaar, E., 227n8 Global economy governance of democratic deficit in, 109 populist criticism of, 8, 216, 217–219 and WDR 2017, 211, 219 neoliberal views of, 24, 37–38, 109 alternative, 20, 25–26, 39, 42 Globalisation, 100

295 backlash of, 8, 9 international law as beneficiary of, 105 populist criticism of, 26, 106 and WDR 2017, 16 Trump on, 10, 36, 37, 39, 42 See also Anti-globalism Globalist neoliberals, 20–21 Gomez, K., 149, 154 Gómez, Laureano, 179 Goodwin, Matthew, 7 Governance functions of law of, 215 populist criticism of, 216, 217–219 and WDR 2017, 211 international economic democratic deficit in, 109 populist criticism of, 8, 216, 217–219 and WDR 2017, 211, 219 of international trade, 21 internationalist views of, 103 neoliberal views of, 37–38, 42 Trump’s scepticism of, 29–31, 33–34, 35–36, 42, 57–58, 62–63 World Bank on, 209, 210–211 Governmentality studies, 23 Gracchus brothers, 11 Graf, Sinja, 127, 130 Greenhouse gas emissions reductions litigation in the Netherlands on, 224–226, 234–237 admissibility of claims, 226–229 application of ECHR to, 229–233, 238–239 and trias politica, 225, 238–243 negative emissions possibilities, 235–236, 240–241 Group of Latin American and Caribbean Sugar Exporting Countries (GEPLACEA), 81 Gruszczynski, Lukasz, 10, 14 Guardino, Matt, 39 Gurmendi, Silvia Fernández de, 124 H Hamilton, A., 54n36 Hardt, M., 218 Harvey, David, 24 Hayek, F.A., 212, 214 Hazardous negligence, 227 ‘Heartland’ concept, 26, 70–71n1 Heterodox autonomy, 79 Hobbes, Thomas, 132, 133 Holthaus, L., 210n3 Human rights law and climate change litigation, 224, 243

296 application of ECHR, 229–233, 238–240 and environmental protection, 88–89, 230–232 evolutionary interpretation in, 166 hierarchies of rights in, 165 new rights, 164, 165 populist criticism of, 9, 15–16, 143–144, 145, 153–156, 171–172 democracy argument, 166–171, 172 by Evangelical Christians, 175–176, 177, 192–200 internationalist reactions to, 102–103 legitimacy argument, 161–166, 171 security argument, 156–161, 171 protection of special groups in, 164–165, 166 right to privacy/personal data protection, and Netherlands ISS Act, 272–273, 277 and security issues, 274, 277, 280, 283 Trump’s attitude towards, 56–57 violations and climate change dangers, 233 in future, 230 right to life, 255, 256, 258 and security, 159 Human Rights Watch on general application of human rights, 165 on growing distrust of human rights, 156, 161–162 on rise of populism, 144, 168 Humanity, crimes against, 127 Humphreys, S., 214 Hungary human rights limitations in, 167 national consultations in, 170 populism in, 152, 163, 168 Hunston, S., 152 Hyun-chong, Kim, 33n66 I ‘Identified individual’-standard of ECtHR, 267–268 Imperialism, 51–52n24 Latin American populist opposition to, 116 Incorporation doctrine, for interpretation of ECHR, 229 Indigenous peoples, rights of in Bolivia, 86, 87 IACtHR on, 202 Individualism in evangelical religious experience, 183 neoliberal populist, 39 rise of, 13

Index Inequalities, created by international law, 92, 113–114, 118 resistance against, 115–116, 117–118 Integration, regional in Latin America, 77–78, 91–92 populist opposition to, 70 Intelligence and Security Services Act (ISS Act, Netherlands, 2017), 271, 272, 274–276 Art. 48, 275 Art. 50, 275 and EU data protection standards/jurisprudence, 272, 273, 274, 278–283 litigation on, 277 referendum on, 276–277 and right to privacy/personal data protection, 272–273 Inter-American Commission on Human Rights (IACHR) Bolivian criticism on, 163–164 Venezuelan criticism on, 169 Inter-American Court of Human Rights (IACtHR) on environmental protection/earth jurisprudence, 88–89 Evangelical criticism on, 196–198 on indigenous rights, 202 on IVF, permissibility of, 193–194 on same-sex marriage, 193, 194 Intermediate-Range Nuclear Forces Treaty (1987), US withdrawal from, 57 International Civil Aviation Organization (ICAO), dispute settlement by, 261–262 International community, populist threat to, 100 International Court of Justice (ICJ) Advisory Opinions of, 264 on attribution of conduct to a state, 257 on effective control, 254 jurisdiction of, 260–261, 262 Ukrainian complaint against Russia at, 262, 268 International courts people concept in statutes of, 129 populist criticism of, 8–9, 165–166 International Covenant on Civil and Political Rights (ICCPR) Art. 6, 233n45 Art. 9, 159 on right to life and climate change dangers, 233 and investigation duties, 258 on right to security, 159

Index International Criminal Court (ICC) investigations, into Kenyan election violence, 126 signatures, Russian withdrawal of, 99 Statute of forms of violence in, 127, 130 people concept in, 129 International criminal law democratic deficit of, 124 people concept in, 124, 127, 129–130 and populism, 124–125 and violence, 135–136 International Criminal Tribunal for Rwanda (ICTR), people concept in Statute of, 129 International human rights law, see Human rights law International Humanitarian Law (IHL), 256, 257 International law apolitical nature of, myth of, 106 crises in, 98 decolonisation of, 92 emancipatory force of, 91 Evangelical Christian use of, 196–197 interpretation of, in Netherlands, 227 multilateralism/internationalism of, 111–112, 118 neoliberal nature of, 109–110, 118 politicisation of, 8 and populism, 3, 8–10, 13, 15, 63–65, 69, 70–71, 90, 91, 97–98, 100–101, 209, 218 elitism criticism, 65, 105–110 left-wing populism, 114–118 multilateralism rejected, 98–99 populist rise, 97, 100, 102–104, 112–113, 118 Trump administration’s scepticism towards, 14, 45–46, 47, 48, 55–59, 61–63, 64, 98, 168 in United States political system, 53–55 violations of, 260, 265 International Monetary Fund (IMF) criticism of, 99–100 power of Global North in, 108 structural readjustment programmes of, 107–108 International organisations international law views of, 111–112 populist criticism on elitist nature of, 26, 106–110 International Panel on Climate Change (IPCC), on negative emissions possibilities, 235, 240–241

297 International relations theories of autonomy in, 78, 79 Trump’s views of, 42 International trade in agricultural products, 81 governance of, 21 internationalist views of, 103 neoliberal views of, 37–38, 42 Trump’s scepticism of, 29–31, 33–34, 35–36, 42, 57–58, 62–63 nationalism in, 26–27 Trump’s views of, 21, 25–26, 27–34, 42, 85n72 as zero-sum game, 26 Internationalism of international law, 111 and left-wing populism, 101, 115–119 populist rejection of, 102–104, 167–168, 216 receding, 102n22 Investigations by ICAO, 262 duty to conduct, 253, 258–260 of ICC, into Kenyan election violence, 126 into shooting down of flight MH17, 248–249 In Vitro Fertilization (IVF), IACtHR on permissibility of, 193–194 Ionescu, G., 147 Iran, US security agreement with, end of, 57 Iran Air flight, downing by US of, 262 Is International Law International? (Roberts), 103–104 Islam, populist criticism of, 5 It can’t happen here (Lewis), 11 J Jackson, Andrew/Jacksonianism, 49, 51 Jaguaribe, Helio, 78 Jaspers, Karl, 13 Jefferson, Thomas, 53 Johns, Fleur, 108 Joint Comprehensive Plan of Action (JCPOA) (US-Iran), US withdrawal from, 57 Joint Investigation Team (JIT), downing of MH17 flight, 248–249 Judiciary populist undermining of, 216 powers of, 238 Judis, John B., 22 Jurisdiction of ECtHR, 263–264 of ICJ, 260–261, 262 Justicialism, 76n24

298 K Kagwanja, Peter, 124–125, 138 Kelloniemi, Esa, 254, 257 Kelsen, Hans, 12, 13, 139 Kennedy, D., 217 Kenya electoral violence in by Mungiki, 126, 132, 134–135, 137–138 ICC investigations into, 126 populism in, 15, 124–125, 126–127, 140 Kenyatta, Uhuru, 136–137, 138 Kenyatta family, 132 Khan, Karim, 125, 127, 136–137 Khashoggi, Jamal, Trump on murder of, 57, 60 Kibaki, Mwai, 138 Kikuyu Mungiki mobilisation of, 126, 129, 132, 140 voting by, 137 Killing, arbitrary or unlawful, 258 Klein, Naomi, 8, 20 Knox, Robert, 101n15, 114n92, 115 Koh, H.H., 47, 54 Konings, Martijn, 39 Korean Airlines Flight, downing by Soviet Union of, 262 Koskenniemi, Martti, 7 Kosovo, NATO intervention in (1999), 98n1 Krastev, I., 149 Kulamadayil, Lys, 16 L Laclau, Ernesto, 22, 101, 115 Lagarde, Christine, 99 Lalive d’Epinay, C., 185 Language use, of Trump, 152 Latin America Evangelical Christians in, 175, 179–184 human rights criticism of, 192–200 political mobilisation of, 176–177, 181, 184–192, 193 political history of, 176n1 populism in, 10, 14–15, 46, 73–74, 75–82, 92, 111, 116, 147, 152, 177 and Evangelical Christians, 16, 175–176, 177, 187, 192–203 human rights criticism of, 163–164 and international law, 69–70, 74, 82, 84–85, 87–89, 92 left-wing, 82–90, 105–106 neo-populism, 74, 75 Protestantism in, 178–179, 180, 181–182

Index Latin American and Caribbean Economic System (SELA), 82 Law governance functions of, 215 neoliberal views of, 25 populist views of, 16, 212, 216, 217–219 and violence, 134, 135, 136, 138–139 World Bank/WDR 2017 on, 108, 209, 210–211, 212, 214–215, 219 Lawful processing principle, 278 Lawrence, Jessica, 10, 14 Lawson, Rick, 231n31 Lazarus, L., 160 Leadership of Evangelical Christians, 181, 184 paranoid, 59–60 populist, 72, 75n21, 112, 150, 151–152 charismatic, 22–23, 64 female, 112n82 Left-wing populism, 8, 73, 102, 110–111 and internationalism, 101, 115–119 in Latin America, 82–90, 105–106 Legal pluralism, in Bolivia, 86 Legitimacy of human rights, populist concerns over, 15, 143, 145, 161–166, 171 Leo XIII (Pope), 178–179 Lester, Simon, 103 Leviathan (Hobbes), 133 Lewis, Sinclair, 11 LGBTQI community Evangelical attacks on human rights of, 176, 192–193, 194–195, 199–200 othering of, 16, 195 Liberalisation of trade, see Free trade Life, right to and climate change dangers, 232–233 and investigation duties, 258 litigation on, 231 violations of, 255, 256, 258 Lighthizer, Robert, 29, 42 Lincoln, Abraham, 169 Luban, David, 159 M McDonnell, D., 149 Madison, James, 52 Maduro, Nicolás, 64, 83 Majoritarianism disadvantages of, 170 populist promotion of, 12 in human rights law, 161–162, 167, 168 Majorities, silent, 35n71 Mansilla, M.A., 189

Index Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations (ICAO), 266 Manuk, Inu, 103 Marcuse, Herbert, 24 Margin of appreciation of states, to take precautionary measures, 231–232, 236 Markets, neoliberal views of, 24, 25 Marks, S., 108–109 Marriage, same-sex, Evangelical Christian opposition to, 192, 193, 194, 196 Mau Mau movement (Kenya), 126 May, Theresa, 157 Mead, Walter Russell, 51 Mexico Cárdenas government in, 75–76n22 Echeverría government in, 70, 74, 80–82 non-alignment policies of, 76n25 MH17 shooting down, 247–248 accountability for JIT investigations into, 248–249 of Russia, 245–246, 249–250, 251–252, 260–265 - investigations duty, 253, 258–260 - involvement in shooting down, 248, 252–258 of Ukraine, 246, 247, 265–268 prosecution possibilities, 268–270 Middle classes, attracted to populism, 9 Mieville, China, 109 Migration, populist views of, 70, 90, 157–158 Milanović, Branko, 9 Miller, Peter, 23 Minorities democratic protection of, 170 populism on human rights serving interests of, 161–162 Misión Carismática Internacional (MCI), 180 Mobocracies, see Majoritarianism Moi, Daniel arap, 137–138 Monbiot, George, 100 Montreal Convention, see Convention for the Suppression of Acts Against the Safety of Civilian Aviation Montt, Ríos, 181 Morales, Evo, 70, 74, 85–90, 92, 152, 163–164 Morales, Viviane, 191n72 Mouffe, Chantal, 8, 101, 115 Moyn, Samuel, 107 Mudde, Cas, 22, 101, 125, 144n2, 148–149, 150–151, 170

299 Muižnieks, Nils, 144 Müller, Jan-Werner, 72, 104, 115 Multilateralism of international law, 111–112, 118 and left-wing populism, 114–118 populism rooted in, 101 populist criticism on, 98–99, 107, 112 Multinational corporations, power of, 106 Mungiki movement (Kenya), 15, 127, 130 aims of mobilisation of Kenyan masses, 132 mobilisation of Kikuyu, 126, 129, 132, 140 as criminal organisation, 125–126 on female circumcision, 130–131, 140 people concept used by, 128 populism of, 125, 126–127, 132, 140 violence by, 126, 132, 134–135, 137–138, 140 against women, 127, 130–131, 140 Muthaura, Francis, trial of, 15, 125 N Narmada River Valley project, 213 Nation states liberal, 215–216 populist views of, 26, 216 Nationalism, 62 in international trade, 26–27 and populism, 72n8, 104 disentangling of, 110–114, 116, 118 economic, 209, 211, 212, 215–219 of Trump, 42, 62–63 Nations in Transit Report (Freedom House, 2017), 152 Nature rights of, 87–89 State of, 133, 134 Negligence, hazardous, 227 Negotiations, requirement in dispute settlement, 263, 268 Negri, A., 218 Neoliberal populism, 39, 109 of Trump, 10, 14, 20–21, 25–26, 38–43 Neoliberalism, 21, 23–24, 212–213 of global economy/international law, 20, 24, 37–38, 109–110, 118 law in, 25 populist rejection of/resistance against, 8, 20, 26, 107, 115, 216 and left-wing populism, 101 progressive, 24

300 rise of, 109 Neopopulism, in Latin America, 74, 75 Netherlands Civil Code Art. 3:303, 228 Art. 3:305a, 228 Art. 6:162, 226, 227 Code of Civil Procedure, Art. 149, 234n47 and downing of flight MH17 investigations into, 248–249 prosecution possibilities, 268–270 Russia held accountable for, 245–246, 249–250, 251–252, 260–265 Intelligence and Security Services Act (ISS Act, 2017), 271, 272, 274–276 and EU data protection standards/jurisprudence, 272, 273, 274, 278–283 litigation on, 277 referendum on, 276–277 and right to privacy/personal data protection, 272–273 litigation on greenhouse gas emissions reduction in, 224–226, 234–237 admissibility of claims, 226–229 application of ECHR to, 229–233, 239–240 and trias politica, 225, 238–243 political question doctrine in, 241–242 populism in, 3, 4–5 treaty with Ukraine on prosecution of Ukrainian nationals, 260 Network structure, of Evangelicals in Latin America, 182–183 New International Economic Order (NIEO), 81, 116 New Latin American Left, 83 NGO’s, human rights, 166 populist conspiracy theories on, 164 Nicaragua, US support for Contras in, 254 Nigeria, SAPs in, 213 Nixon, Richard, 35n71 Njambi, Wairimu Ngaruiya, 131 Njenga, Maina, 137 Njoroge, Kezia Muthoni, 130 Non-alignment policies, Latin American, 76–77, 80, 82 Non-state actors security threats posed by, 156–157 state responsibility over conduct of, 253–256 North American Free Trade Agreement (NAFTA) renegotiations of, 103

Index Trump’s rejection of, 28, 30–31, 63 North Atlantic Treaty Organisation (NATO) Art. 5, 57n51 Kosovo intervention by (1999), 98n1 Trump’s undermining of, 57 Nuremberg Charter, 129 O Oaths, Agamben on, 131 Obama, Barack, 72n9, 99n6 Ojeda, Mario, 76n25 Okamura, Tomio, 162 Oliva, Pedro Puentes, 186n50 Orbán, Viktor, 157, 158, 163, 169 Othering, populist, 5, 6, 154, 158 by Evangelical Christians, 16, 184, 195 P Pachamama concept (Mother Earth), Bolivian promotion of, 87–89, 92 Pappas, T.S., 147, 148 Para-colonial dependency, 78–79 Paranoia, political, 14, 59–60 of Trump administration, 45, 47–48, 60–64 Paris Climate Agreement (2015), 116, 235–236 US withdrawal from, 56 Pastors’ Council (Consejo de Pastores), 186, 187 People, 13, 129–130 and international law, 15, 128–129, 140 international criminal law, 124, 127, 129, 130 populist identification with, 5, 8, 22, 72, 148, 149, 154, 216 neoliberal, 39 in United States, 49 representation of, 124 Trump’s views of, 35–37 People’s Party (United States), 50, 146 Permanent Sovereignty over Natural Resources (PSNR), 81 Perón, Eva, 72n9 Perón, Juan Domingo, 73, 76–77 Peronismo, 69–70, 73, 76–80, 91 Personal data bulk collection of, allowed in Netherlands ISS Act, 272, 275–276 processing of, 278, 279 quality of, 279–282 retention of, 280–282 right to protection of, and Netherlands ISS Act, 272–273 See also Data protection Pillar, P.R., 63

Index Pinochet, Augusto, dictatorship of, and Evangelical Christians, 185–188 Pluralism, 150 acceptance of, 201–203 legal, in Bolivia, 86 Poland human rights limitations in, 169 populism in, 152, 167 Political paranoia, 14, 59–60 of Trump administration, 45, 47–48, 59–64 Political question doctrine, 241–242 Political representation, 133 Politicisation, of international law, 8 Politics and economy, 212 electoral, Evangelical Christian involvement with, 189–192 populism as way of doing, 6 and violence, 139–140 Politics as a Vocation (Weber), 134–135 Populism, 5–6, 11–13, 14, 21, 22–23, 46–47, 64, 71–72, 99, 100, 101–102, 104, 125, 130, 145–151 and democracy, 22, 115, 123–124, 130–134 and globalisation, 8, 9, 10, 16, 26, 109 and international law, 3, 8–10, 13, 15, 63–65, 69, 70–71, 90, 91, 97–98, 100–101, 112, 209, 218 elitism criticism, 65, 105–110 human rights law criticism, 9, 15–16, 143–144, 145, 153–156, 171–172 - democracy argument, 166–171, 172 - by Evangelical Christians, 175–176, 177, 195–200 - internationalist reactions to, 102–103 - legitimacy argument, 161–166, 171 - security argument, 156–161, 171 international criminal law, 124–125 and multilateralism, 98–99, 107, 114–118 left-wing, 8, 73, 102, 110–111 and internationalism, 101, 115–119 in Latin America of, 82–90, 105–106 and nationalism, 72n8, 104 disentangling of, 110–114, 116, 118 economic, 209, 211, 212, 215–219 neoliberal, 39, 109 of Trump, 10, 14, 20–21, 25–26, 38–43 neoliberalism rejected by, 8, 20, 26, 107, 115, 216 political-economy of, 90, 91 religious, 175 right-wing, 90, 152

301 rise of, 6–8, 20, 114, 144, 151–153 international law responses to, 97, 100, 102–104, 112–113, 118 Posner, Eric, 9–10, 58, 59, 105 Post, J., 59–60, 61 Powers, separation of, see Trias politica Precautionary measures duty of States, and margin of appreciation, 231–232, 236 Precautionary principle of IHL, 256 Priester, Karin, 70–71n1, 72 Privacy, right to, and Netherlands ISS Act, 272, 273, 277 Privatization, neoliberal promotion of, 24 Proliferation of human rights, 162–163, 165 Prosecution or extradite duties, 259 of suspects of downing MH17 flight, possibilities for, 268–270 Protectionism, 38n87 Protestantism in Latin America, 178–179, 180, 181–182 See also Evangelical Christians Puente, P., 186, 188 Puig, Juan Carlos, 73–74, 78–79, 91 Putin, Vladimir, 98–99 R Ramirez-Hernandez, Ricardo, 33n66 Rasmussen, Jacob, 126–127, 128, 131, 137, 138 Rationalities, political, 23 neoliberal, 21, 24, 25 Reagan, Ronald, 41 Realism of the periphery, 78 in Trump’s foreign policy, 62n76 Redistribution, aim of multilateralism, 116 Referendums, 170 Regional integration in Latin America, 77–78, 91–92 populist opposition to, 70 Reid, John, 159, 160 Religious freedom, 201 in Chili, 188 in Colombia, 191 Religious groups, transnationalism of, 196–197 Religious populism, 175 Religious-secular division in Chili, 188 in Colombia, 191 Evangelical acceptance of, 192, 195 Evangelical alternative interpretation of, 196, 198, 199–203

302 Rerum Novarum Encyclical (1891), 178–179 Responsibility criminal, for shooting down flight MH17, 248–249, 250–251 of States, 252 for shooting down flight MH17, 246, 250–251, 252–258 Rhodes Must Fall movement, 117 Right-wing populism, 90, 152 Risk-free society, 160 Roberts, Anthea, 103–104 Robertson, Pat, 181 Robins, R.S., 59–60, 61 Rodiles, Alejandro, 10, 14–15 Rodríguez de Castellanos, Claudia, 190 Rodríguez-Garavito, C., 149, 154 Rodrik, Dani, 90, 91 Roman Empire, populism in, 11 Rose, Nikolas, 23 Rovira Kaltwasser, Cristóbal, 90, 91, 101, 125 Rubicon, symbolism of, 11 ‘Rule of law’ projects (World Bank), 108, 214 WDR 2017 on, 214–215 Russia accountability for shooting down MH17 flight of, 245–246, 249–250, 251–252, 260–265 duty to conduct investigations, 253, 258–260 involvement in shooting down flight MH17 of, 248, 252–258 international obligations regarding flight MH17 of, 246, 252 investigation on shooting down of flight MH17 by, 249 involvement in Ukrainian armed conflict, ICJ case against, 262, 268 legislation allowing overruling ECtHR decisions, 264 populism in, 110–111 unilateralism of, 99n5 Ruteere, Mutuma, 127 Rutte, Mark, 6 S Safety of civil aviation, 252–253, 269 obligations of states, 265–267 offences against, 257–258 Same-sex marriage, Evangelical Christian opposition to, 192, 193, 194, 196 Sanders, Bernie, 71 Schachter, O., 50, 65 Schmitt, Carl, 136

Index Schwöbel-Patel, Christine, 9, 15 Secular fundamentalism, risks of, 177, 201–202 Secular-religious division in Chili, 188 in Colombia, 191 Evangelical acceptance of, 192, 195 Evangelical alternative interpretation of, 196, 198, 199–203 Security balancing of fundamental rights with, 274, 277, 280, 283 populist concerns on human rights taking precedence over, 15, 143, 145, 156–161, 171 right to, 159 Semi-periphery states, 78, 79 Sensitive data, 282 Separation of powers, see Trias politica Sermon on the Mount, 139 Servansing, Shree Baboo Chekitan, 33n66 Settlements, see Dispute settlement ‘Silent majority’, 35n71 Slobodian, Quinn, 10, 109 Solidarity, populism of, 114–118 Soros, George, 158, 163 South Africa, left-wing populism in, 117 Sovereignty human rights seen as infringing on, 167 populist reclaiming of, 98–99 Soviet Union, downing of Korean Airlines Flight by, 262 Stasis: Civil War as a Political Paradigm (Agamben), 132–133 Stasis notion, 133 State of Nature, 133, 134 State responsibility doctrine, 252 for shooting down of flight MH17, 246, 250–251, 252–258 States attribution of conduct to, 253–258 Evangelical ideas of neutrality of, 198, 199 obligations of accountability for violations of, 250–251 care duty, 256 to ensure safety of civil aviation, 265–266 investigations duty, 258–260 to prevent criminal offences, 267 to take precautionary measures, 231–232, 236 violence monopoly of, 134–135, 136

Index Steffek, J., 210n3 Structural Adjustment Programs (SAPs, World Bank), 213 Surveillance, indiscriminate/mass, 275 allowed in Netherlands ISS Act, 272, 275–276 T Taguieff, P.A., 145, 146 Targeting rules of IHL, 256 Tariffs, imposed by US on China, 32, 33 Teixeira, Ruy, 22 Tercermundismo, 81, 91 Territory, spiritual connections to, 202 Terrorism human rights derogations in fight against, 160 perceived threats of, 157 Third Position, 91 Third World Approaches to International Law (TWAIL), 70, 74, 79–80, 81, 91, 92, 105, 113 Third World, Mexico’s leadership of, 81 Threats of populism, 12–13, 100 real and imminent, 231 of terrorism, 157 Tokyo Trial Charter, 129 Tolerance, duty of, 202n125 Torture, Trump’s willingness to sanction, 167 Tourme-Jouannet, E., 218 Transnationalism of populist economic nationalism, 216 of religious groups, 196–197 Trans-Pacific Partnership (TPP) Trump’s rejection of, 28, 35–36 US withdrawal from, 29, 30, 36, 58 Treaties, withdrawal from, 102n22, 112 Trias politica (separation of powers) and climate change litigation in the Netherlands, 225, 238–243 and margin of appreciation, 232 Trump, Donald/Trumpism, 48n10 anti-immigration measures of, 157–158 international trade views/policies of, 21, 25–26, 27–38, 42, 85n72 populism of, 8, 10, 14, 19, 35, 37, 38, 47, 48–49, 51n22, 152, 167 international law scepticism, 14, 45–46, 47, 48, 55–59, 61–63, 64, 98, 168 neoliberal, 20–21, 25–26, 38–43 political paranoia, 45, 47–48, 60–64

303 Truth, construction of, 23 Turkey, human rights violations in, 157 U Ukraine accountability for downing of MH17 flight of, 246, 247, 265–268 armed conflict in, 256–257 ICJ case against Russia on, 262, 268 Russian accusations of involvement in shooting down of flight MH17 of, 249 treaty with Netherlands on prosecution of Ukrainian nationals, 260 Unconstitutionality criticism, on climate change litigation, 226 Undoing the Demos (Brown), 24 Unilateralism, Russian, 99n5 United Kingdom, Brexit referendum in, 99 United Nations Charter, 123, 128–129 Art. 1(2), 128 Art. 51, 57n51 Human Right Committee, on right to life and climate change dangers, 233 Human Rights Council, US withdrawal from, 168 Pachamama concept promoted by Bolivia at, 87–88 Security Council Resolution No. 2166 (2014), 249, 258 Trump on, 98 United States Constitution, 52, 55 Art. I, 52n30, 53n34 Art. II, 52n29, 53, 54 Art. III, 54 Art. IV, 53, 54 Contras supported by (Nicaragua), and effective control, 254 downing of Iran Air flight by, 262 Evangelical expansion in Latin America influenced by, 182 foreign policy of, 53, 54–55 isolationism, 51–52 neoliberalism in, 39–42 political system of, 52–53 Electoral College, 55n41 presidential powers, 53–54, 55n43 Supreme Court, 54, 55 populism in, 11, 38n87, 45, 47, 48–50, 110, 116, 146, 152 anti-immigration measures in, 157–158

304 international law scepticism, 14, 45–46, 47, 48, 50–52, 55–59, 61–63, 64, 98, 168 See also Trump, Donald, populism of religious civil society organisations in, 197–198 trade policies of, 27–29, 37–38, 42 on China, 32–33 trade agreements, 29–31, 35–36 and WTO, 28, 33–34, 85n72 United States-European Union Transatlantic Trade and Investment Partnership agreement (TTIP) demonstrations against, 117 US withdrawal from negotiations on, 211 United States-Korea Free Trade Agreement (KORUS), renegotiation of, 31 United States-Mexico-Canada Agreement (UNSMCA), 31, 64, 85n72 US withdrawal from negotiations on, 211 Universal Declaration of Human Rights (1948), 165 Art. 21(3), 167 Universalism of human rights, populist denial of, 165, 168 Urgenda (environmental NGO, Netherlands), 225 claims against Netherlands on climate change, 234–237 admissibility of, 226–229 and trias politica, 225, 238–243 Urueña, Rene, 16 V Venezuela human rights protection in, 91, 169 withdrawal from American Convention of Human Rights by, 91, 163 left-wing populism in, 83–84, 105 Venice Commission (Council of Europe), 163 Verbeek, B., 72n8 Vienna, 12 Vienna Convention on the Law of Treaties Art. 27, 260, 264 Art. 56, 102n22 Vio Grossi, Judge, 194n87 Violations of human rights and climate change dangers, 233 in future, 230 right to life, 255, 256, 258 and security, 159 of international law, 260, 265 Violence

Index Agamben on, 134 by Mungiki, 126, 132, 134–135, 137–138, 140 against women, 127, 130–131, 140 cultural and bodily, 127 ICC Statute on, 127, 130 and international criminal law, 135–136 and law, 134, 135, 136, 138–139 and politics, 139–140 state monopoly of, 134–135, 136 W Waldron, J., 160 Wallace, George, 49, 50, 52, 65 Wamue, Grace Nyatuga, 126, 131 ‘Washington Consensus’, 24, 107, 111, 212 Washington Post, 57 Weapons, heavy, duty of proper training for use of, 256 Weber, Max, 64, 134–135, 139–140 Weiler, J.H.H., 202n125 Wentker, Alexander, 105–106n49 West/Western culture, populist claims of protection of, 5 Westerbeke, Fred, 248 Western-centric views of international law, 113 of populism, 100, 105–106, 111, 118 ‘What is a people?’ (essay, Agamben), 129–130 What is Populism? (Müller), 104 Wilders, Geert, 4, 5 Williamson, John, 107n53 Wilson, Graham, 26 Women Mungiki violence against, 127, 130–131, 140 populist leadership by, 112n82 See also Gender equality World Bank Articles of Agreement, 210 expansion of mandate of, 210, 213–214 on law/‘rule of law’, 108, 214–215 neoliberalism of, 212–213 Structural Adjustment Programs (SAPs) of, 213 See also World Development Report (WDR) 2017 World Development Report (WDR) 1978, 213 World Development Report (WDR) 2017, 16 and economic populism, 211, 219 on law/‘rule of law’, 209, 210–211, 212, 214–215, 219 World Trade Organisation (WTO) disputes

Index China’s complaint against US tariffs at, 32 US complaint against China’s property rights rules, 33 US membership of, 28 US undermining of, 33–34, 85n72 Worldview of Trump, 56 X Xenophobia, populist, 150

305 Y Yes Prime Minister (television series), 123 Z Zaslove, A., 72n8 Zero-sum game, international trade as, 26 Zonderop, Yvonne, 5