Bridging Scholarship and Practice: 20 Years of the Public International Law & Policy Group

By: Brianne McGonigle Leyh and Julie Fraser, Senior Counsel, PILPG

This article was published earlier in the Utrecht Journal of International and European Law on 12 April 2017.

When the Editor-in-Chief of the Utrecht Journal of International and European Law (UJIEL) approached us with the possibility of guest editing a special issue related to public international law and policy, we felt the timing could not have been better. As academics at Utrecht University with the Netherlands Institute of Human Rights and Montaigne Centre for Judicial Administration and Conflict Resolution, we felt that a theme linking the world of lawyers with that of policymakers was important in order to examine the role of law in protecting human rights and security. Moreover, as Senior Counsel with the Public International Law & Policy Group (PILPG), which celebrated its 20-year anniversary in 2016, we welcomed the idea to link academic scholarship with the work of PILPG. After all, PILPG’s founders, Professor Paul Williams and Professor Michael Scharf, have themselves acted as bridges between scholarship and practice for years.

As a result, this special edition is not only intended to highlight the extraordinary work carried out by PILPG on issues of law and policy around the world, but also to emphasise the importance of linking scholarship with practice and addressing contemporary issues impacting the world in which we live. PILPG’s motto ‘lawyering peace’ requires reflection on the role that law can play in helping to bring about the peaceful resolution of serious problems affecting individuals and societies as a whole. This special edition of UJIEL, addressing a variety of themes, does just that.

Big Ego’s in International Politics: Do We Need More or Less International Law? | Event: Trump’s World – The Trump Administration and International Law

By Rosalie Dieleman, Research Associate PILPG-NL

“We live in a time of big ego’s in international politics”, said Jaap de Hoop Scheffer, former NATO Secretary-General, referring to Donald Trump, Vladimir Putin and Recep Tayyip Erdogan. De Hoop Scheffer warned that excessive pride and egotism brings along the risk that, “in times of crises, ratio can fall victim to egotism”. In the context of international politics, these egos can therefore have very serious consequences. How to deal with this? Should and can we still put our trust in international agreements and international rule-based institutions, or does this era call for a different approach?

Exactly one week after the inauguration of the 45th president of the United States, the Asser Institute and the John Adams institute co-organized an event to reflect on and discuss the possible implications of Trump’s presidency on topics of international law, including ”war and peace”, ”the Paris Agreement”, and ”American trade policy”.* The event was moderated by Tracy Metz, the director of The John Adams Institute, and the keynote speakers were Henne Schuwer, Ambassador of the Netherlands to the United States, and Jaap de Hoop Scheffer, former NATO Secretary General. With speakers and panelists that all have a background in international law and diplomacy, it should come as no surprise that the answers presented to the questions posed in the introductory paragraph all pled for engagement and strengthening of international institutions. Below I will discuss some of the policy recommendations given by De Hoop Scheffer and Schuwer, as well as question their suitability in times of big egos.

Both speakers stressed the importance of engaging with the Trump administration. De Hoop Scheffer noted that it was important to “stop lamenting and moaning” over the Trump presidency, accept and respect that he is the democratically elected president, and that we therefore need to engage with him. In addition, he argued that we should take the men and women who carry out Trump’s politics seriously, as diplomacy is a very important tool, especially in times of crises. And although Schuwer was clear in stating that we should “rethink” our ties with the United States, he also stressed the importance of approaching the US with an “outstretched hand”. The argument that it is important to keep all communication channels open is convincing, especially when Trump’s policy is as unpredictable and fast-changing as it has been in the first weeks of his presidency. The old adagio ‘keep your friends close and your enemies even closer’ might apply here, as history shows that isolation or cutting off diplomatic ties seldom leads to good outcomes.

To engage and keep diplomatic ties strong, however, does not mean that the Netherlands or the EU should dance to Trump’s tune, as was opined in both addresses. Schuwer, as ambassador of the Netherlands, stressed the importance of the Netherlands to make clear that it is a country of certain values. As honorable as it sounds to argue that the Netherlands should underline its values towards the US, it is necessary to reflect on the ability of the Netherlands, as a relatively small country, to credibly uphold its values. Especially when taking into account, as panelist Liesbeth Lijnzaad pointed out, the worrying statements Trump has already made concerning torture. De Hoop Scheffer argued the same for the EU, calling on the EU to make clear that it is a community of values, and more specifically, that none of its member states will tolerate rendition or secret detention facilities. I agree with De Hoop Scheffer that the Netherlands needs a united EU in order to be able to uphold its values in times of big egos in international politics.

Lastly, and in line with the previous argument, both Schuwer and De Hoop Scheffer called for strengthening our international institutions, especially with regards to the EU and NATO. Both of them agreed with Trump’s statements that Europe has neglected its financial responsibilities with regards to NATO, and that this is a serious issue that should be addressed. With regards to the EU, De Hoop Scheffer argued that the Trump presidency should be the rallying cry for the member states to take the EU seriously, with regards to economic, political and military issues. More in general, De Hoop Scheffer argued that we should not do away with our rules-based multilateral institutions, despite their malfunctions, there is no other possibility we can take on global issues such as terrorism, pandemics, cybercrime, and mass-migration without these institutions. While the arguments of the speakers might very well be true, it is also important to note that the future of the EU very much depends on the public sentiment in its member states, taking into account the general elections coming up in the Netherlands, France and Germany. With the possibility of the anti-EU sentiment gaining the overhand during these elections, it might be very difficult to attain more unity within the EU. De Hoop Scheffer’s touched upon this issue with his plea for the EU not to leave its fate to the “fringes” of politics, thereby referring to politicians such as Le Pen and Wilders. This call might be answered by the EU summit in Malta, where the heads of state of EU member states agreed to draft and sign a new declaration concerning the future of the EU in March 2017, in Rome.

The desired response to big egos and the uncertainty and unpredictability of international politics that comes along with them, thus seems to be to put more trust in international law, rather than less. I agree with these speakers that European states need to cooperate in international institutions including the EU, yet these institutions need to be revised in order to be equipped to face the needs of our current time. For instance, by a more equitable distribution of costs to finance organizations like NATO, increasing cooperation with regards to foreign policy and security in the EU, and put in place faster decision-making procedures in these areas. As the judge who declared Trump’s travel ban illegal demonstrated: even the powers of the president of the United States are limited by checks and balances. We need such checks and counterweights in international law and politics as well. It seems that,

despite their malfunctions and limitations, international cooperation through institutions like the EU is the closest thing European states have to offer in this regard.

* The livestream of the event is available on the website of the Asser Institute

Breakfast Talk by Thuli Madonsela (former Public Protector of South Africa)

By Rosalie Dieleman and David Lando, Research Associates PILPG-NL

Thuli Madonsela, former Public Protector of South Africa*, was invited by the Tällberg Foundation and TheRockGroup to a breakfast talk on 28 November 2016, which PILPG Research Associates Rosalie Dieleman and David Lando attended.

Ms. Madonsela is the former Public Protector of South Africa, Chairperson of the African Ombudsman Research Center in South Africa, and one of the drafters of the South African post-Apartheid constitution. She has been in the spotlight during the last year for a report she filed before leaving the Office of the Protector regarding the connection between South African President Zuma and Indian-South African lucrative businessmen Ajay, Atul, and Rajesh Gupta. The report “details a disturbing web of influence exerted over parts of the South African state by a powerful family of Mr. Zuma’s chums”,[1] the Gupta family. The report indicates that the Gupta family was involved in political appointment, including that of the South African finance minister.

The breakfast talk, however, did not focus only on the report by Madonsela, but on her work as a Public Protector in general, and her views on the South African legal system. Her views on the role of the law in society were shaped by leaders such as Nelson Mandela, who, according to her, used the law as a tool to heal society, and to bring people together. In her role as a Public Protector she attempted to use the law in a similar way. This attitude was evident in her role as a co-drafter of the post-Apartheid constitution as well. When asked about her inspiration for drafting the constitution she responded that it came from observing the past and concluding what she did not want to be repeated, while looking to the future and envisioning the society she wanted to see in South Africa. This process, she says, was a part of what inspired the drafters to create the Public Protector institution, as a safeguard for constitutional democracy.

Ms. Madonsela often faced significant resistance in her attempts to apply the law as a Public Protector. When asked why, and how, she persisted in her investigation of President Zuma despite strong resistance from the Zuma camp and others, she answered that the right question should be: why wouldn’t I? She noted that investigating the people in power was her duty as Public Protector, and that continuing her investigation was essential for fulfilling the Office. The source of her personal motivation and what kept her going, she says, was notion she holds of the South Africa she wants to see.

Another point of interest was the recent withdrawal of South Africa from the Rome Statute, which we extensively discussed in other posts in this website. While negative consequences of the withdrawal were widely discussed, David Lando, Research Associate at the PILPG, inquired whether the withdrawal could also pose an opportunity for strengthening pan-African legal institutions. Madonsela noted that she loves the optimism of the youth, but that she is not sure optimism is warranted in this case. She argued that before withdrawing, states must have an alternative to the ICC already in place. At the moment, she said, the withdrawal leaves legal vacuum which will inevitably lead to impunity. She stressed the importance of fighting impunity by stating: “injustice is an open wound, until you have dealt with it, peace will never be sustainable”. An improvement of the African and South African legal systems that will allow them to prosecute serious international crimes will require commitment and serious effort, as changes such as these do not happen magically.

Ms. Madonsela is enthusiastic about the role people can take to change their societies. Drawing from her own experiences, she encouraged everyone to take a stand in shaping their societies according to their own values. She noted that change must come both from within and outside the system. For a change to be successful it must incorporate people that are within the political and legal systems of a State, civil society, and the public.

* explanation of the Office of the Public Protector: The Office of the Public Protector was established under Act 108 of the South African constitution of 1996. It mission is to strengthen constitutional democracy by “investigating, rectifying, and redressing any improper or prejudicial conduct in state affairs and resolving related disputes”.[2] The jurisdiction of the Protector is extensive, as it “has jurisdiction over all organs of state, any institution in which the state is the majority or controlling shareholder and any public entity”.[3]

Footnotes

[1] The Economist, South Africa’s Public Protector Finds “State Capture” by the President’s Pals, (Nov. 5 2016), Available at http://www.economist.com/news/middle-east-and-africa/21709512-clock-has-been-started-could-lead-jacob-zumas-removal-south-africas.

[2] Public Protector South Africa, Vision and Mission, (2009), Available at http://www.pprotect.org/about_us/Vision_mission.asp.

[3] Public Protector South Africa, History and Background to the Office of the Public Protector, (2009), available at http://www.pprotect.org/about_us/history_background.asp.