EJIL:Talk! Article Discussion: Reply to Tams, Kufuor and de Wet

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Our heartfelt thanks to the editors of EJIL:Talk! for convening an online symposium to discuss our recently-published EJIL article, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We are also grateful to Kofi Kufuor, Christian Tams, and Erika de Wet for their thoughtful comments. We hope that our study will convince other scholars to, as Tams suggests, “take [] lesser-known courts seriously,” especially those operating in developing country contexts. In this brief reply, we respond to several points made by the three distinguished commentators and situate our article’s findings in a wider perspective.

Our article ends with a discussion of whether governmental efforts to sanction or reform the three sub-regional courts succeeded or failed. Erika de Wet explains that the SADC story did not actually end with the adoption of the new Tribunal protocol. She provides helpful additional information about why Zimbabwe felt targeted by the Tribunal, and she convincingly argues that the attempt by civil society groups to challenge the new protocol before the African Union’s human rights institutions was a strategic misstep.

De Wet also mentions efforts to pressure SADC member states “to revoke their previous decisions to abolish the individual complaints procedure.” Like de Wet, we are skeptical that any litigation strategy can reverse this political decision. There is still an open question as to whether other advocacy strategies might change the status quo. A more promising avenue for advocates to pursue includes lobbying SADC member states to reconsider or refrain from ratifying the 2014 Protocol — thereby preventing its entry into force. But blocking the creation of a Tribunal whose jurisdiction is limited to interstate disputes will be far easier than convincing national political leaders to revive a sub-regional court that includes individual access.

We turn next to why the three court backlash campaigns had divergent outcomes. Our article emphasizes two factors — the extent to which community secretariats followed procedures requiring consultations with civil society, and how effectively human rights groups and lawyers associations mobilized to oppose court-curbing proposals. The support of both of these actors gives sub-regional judges institutional and political space to assert their independence in a context where robust judicial review is still not widely accepted at the national level.

Kofi Kufuor and Christian Tams offer different potential explanations for our findings. Kufuor suggests that the backlashes should be understood in light of the borrowed nature of regional economic integration and European supranationalism in Africa. It is true that regional integration systems in general and sub-regional courts in particular emulate the institutions of the European Community (as Karen Alter and Laurence Helfer have discussed here and here). But we did not find borrowing to be a necessary or a sufficient explanation for the backlashes, because emulation does not preclude the possibility of adapting existing models to local needs. Africa is home to the world’s oldest customs union — the Southern Africa Customs Union (SACU). Established in 1910 and now including Botswana, Lesotho, Namibia, South Africa and Swaziland, SACU’s history and objectives have been shaped by its distinctly Southern African experience. Moreover, regionalism in Africa does more than emulate the European Community. Regional communities provide important platforms to promote economic self-reliance and economic independence, as reflected, for example, in the Abuja Treaty for the Establishment of the African Economic Community of 1991. A rich body of scholarship is beginning to analyze these and other local roots of Africa’s regional integration schemes.

Christian Tams offers two other explanations—“time/institutional acceptance” and “the conduct of the court itself.” We agree with the general observation that, all else equal, international courts may be more vulnerable to backlash “early in their institutional life” when their authority is nascent and potential supporters have yet to mobilize. But since the three courts in our study were all recently created, and all three experienced opposition in response to early rulings against governments, their young ages and limited institutional acceptance cannot account for the divergent outcomes we identify. In fact, it is the courts’ resilience —  especially in East and West Africa — in the face of backlashes occurring so soon after their creation that is one of the most striking findings of our study.

Although we do not ignore the content of the courts’ decisions, we are not convinced that they explain the divergent backlash outcomes. All three tribunals plausibly justified the jurisdictional and substantive bases for their rulings. Moreover, the governments in all three cases failed in their efforts to overturn the legal validity of the contested decisions. Indeed, we show that the Campbell rulings — and the SADC Tribunal’s power to hear human rights claims — were affirmed by an independent study commissioned by the SADC Secretariat, which rejected the argument that the Tribunal was acting ultra vires.

That said, it is quite possible, as Tendayi Achiume argues in soon to be published paper, that the SADC judges were especially out of touch with widespread sentiments in the region. The Tribunal extended the initial Campbell ruling to 77 similarly situated white farmers, enjoined future land seizures, ordered Zimbabwe to compensate the farmers whose land had been seized, and found that the government’s land reform policy discriminated on the basis of race. Our account notes that these decisions struck at the heart of Mugabe’s land redistribution system. These decisions struck at the heart of Mugabe’s land redistribution system. They also challenged a policy that was legally valid under Zimbabwe’s Constitution.

Achiume suggests that the SADC Tribunal might have misinterpreted human rights norms — in particular a provision of the International Convention on the Elimination of All Forms of Racial Discrimination that allows race-conscious policies to remedy past discrimination, such as the legacy of concentrated white land ownership. Our claim is more circumspect. Specifically, we note that SADC judges could have adopted less inflammatory legal theories to support its rulings or limited the rulings’ remedial effects.

The question we could not answer, however, is whether Zimbabwe’s President would have accepted a less provocative ruling. We debated this point, and ultimately concluded that SADC Tribunal could neither reject the Campbell suit outright, nor would a less inflammatory ruling have been tolerable to Mugabe. The Tribunal could not reject the suit because private litigants clearly had standing to challenge state actions. Moreover, rejecting the claims of a landowner whose property had been summarily seized without legal review, who was kidnapped and beaten, and whose farm was burned would have signaled to future litigants that there was little point in turning to the Tribunal to challenge abuses of government power. Although we agree with Tams that legal validity is a factor, and with Achiume that the racial discrimination aspect of the Campbell ruling is the least convincing and especially provocative, if Mugabe would have been just as incensed by a more diplomatic ruling, then perhaps the choice facing the SADC judges was to “go big or go home.” If this analysis is correct, then the “going big” aspect of the decision did not in itself trigger the backlash.

Equally difficult to challenge is the claim that many African leaders reject supranationality and international legal review. Kufour is surely right that Africa shares a history that contributes to political leaders and ordinary citizens opposing international intervention, however well intentioned. De Wet is also correct in pointing out that governments that do not respect the independence of their own courts are unlikely to accept the rulings of independent international courts. The question is how far one should take these observations?

African leaders are far from unique in disliking international intervention. Recently, a majority of UK voters rejected European style supranationalism in favor of Brexit. China and Russia are increasingly outspoken in rejecting compulsory international adjudication. And U.S. Presidential candidate Donald Trump is threatening to pull the US out of the WTO. These are the kinds of elite and popular reactions that motivated our investigation of backlash.

We close by reiterating our basic findings. At the national level, authoritarian leaders can eliminate judicial opposition to their rule. Repression of domestic judges may well be on the rise — Ecuador, Hungary, Russia, Turkey and Venezuela are all recent and worrying examples. At the international level, however, neutralizing international courts requires multilateral assent. Our article shows that such assent is difficult to orchestrate even where national executives are strong and the domestic rule of law is weak. What do these findings mean more broadly? They may mean, for example, that China can vociferously reject a recent arbitration ruling condemning its territorial claims in the South China Sea. But China may nonetheless find, as Zimbabwe did, that when it comes to international adjudication, pesky court rulings can have lingering consequences and are not so easily displaced.

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