Stephen J. Toope is director of the Munk School of Global Affairs. Jutta Brunnée is Metcalf Chair in Environmental Law at the University of Toronto Faculty of Law.
To protest President Donald Trump’s order barring travellers from seven predominantly Muslim countries from entering the United States, ordinary citizens demonstrated at airports across the country and in cities around the world. Lawyers set up makeshift airport offices to help people affected by the travel ban and to seek court orders to contain it. Hundreds of State Department diplomats voiced their misgivings in a strongly worded “dissent memo.” Foreign governments registered shock, reminding the President of the need to respect international legal rules protecting refugees from war.
This immediate mass resistance revealed a fear that the travel ban, created in a secretive process and imposed abruptly and arbitrarily, undermined not only fundamental rights and values, but the rule of law itself. That includes the international legal order we have built since the end of the Second World War. Indeed, a stream of executive orders and verbal jabs targeted the Trans-Pacific Partnership, the North American free-trade agreement, an unspecified number of multilateral treaties, the Paris climate agreement, NATO and the UN and its funding.
Not every order that the Trump administration has been rolling out is equally destabilizing to the rule of law. While one may disagree as a matter of policy with the retreat from the TPP and the threatened withdrawal from the global climate regime, these actions do not necessarily undermine international legality. If executed properly, using legal mechanisms that have been previously agreed upon, these retreats are lawful, even if corrosive of other states’ resolve to tackle shared problems.
However, when the biggest Western democracy, with a flick of the presidential pen (or tongue), runs roughshod over long-established refugee rights, advocates torture and instructs its military to make recommendations for rules to combat the Islamic State that “exceed the requirements of international law regarding the use of force,” we had better take notice. These actions are not merely policy choices over which one may legitimately disagree. They are frontal assaults on legal rules built over generations, often through U.S. leadership. They threaten the basis of the legal order that we rely on to allow peoples of different views and traditions to interact and reach agreement on shared purposes. If these actions continue and are not successfully repudiated by other countries, we will witness a fundamental shift in the world order likely to result in less stability, more military conflict and a destruction of protections for vulnerable people.
Many of Mr. Trump’s supporters believe that the U.S. political leadership needed a shakeup. They accept his argument that the United States has been a chump, agreeing to international rules that have weakened its power and damaged the prospects of its workers. For these followers, his early executive orders are simply overturning decades of rot and failure.
But even if that diagnosis were correct, the means by which government leaders act are important, especially for the leader of the world’s most powerful state. Actions or threats that call into question the U.S. government’s willingness to abide by agreed-upon rules, or that effectively say that the result alone is what counts, create huge risk. If the United States jettisons the rule of law, other states are encouraged to do the same. Instead of building shared institutions to address common issues such as terrorism, refugee flows or environmental degradation, the approach is to beggar thy neighbour, build up your military and ensure you can win any dispute through the application of economic or military force.
But once law is abandoned for raw power, everyone is exposed. Threat is constant. In a powerful moment in A Man for All Seasons, a young zealot argues that the law should be cut down whenever necessary to reach an important objective. Sir Thomas More, playwright Robert Bolt’s central character, shoots back: “And when the last law was down, and the Devil turned round on you – where would you hide … the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down … d’you really think you could stand upright in the winds that would blow then?”
All around the world, authoritarian regimes are questioning, even dismantling, the rule of law. We see it in the Philippines, justified as a war against drug dealers and users. In Turkey, justified by a coup attempt. In Hungary and Poland, justified as a rebuilding of national pride and the elimination of threats attributed to refugees and minorities. In Russia, justified by a desire to return to national glory and influence.
The winds are blowing hard right now. Laws limit our actions, yes. But they also protect us. The rule of law is not self-perpetuating. It must be defended, and not just by lawyers, but by all citizens who may one day need its shelter.Report Typo/Error
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