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January 01, 2007

Protecting and Advancing the International Rule of Law

by Walter H. White Jr.

Last year, I traveled to Nairobi, Kenya to address a group of prosecutors on issues relating to criminal prosecution of modern human trafficking activity. It was with acute sadness that I, an American and partial descendant of former slaves, experienced the irony of traveling to East Africa to discuss the elimination of slavery in the twenty-first century.

But confronting and addressing such discomforting realities of our contemporary world is a critical role for lawyers. As the American Bar Association (ABA) Section of Individual Rights and Responsibilities (IRR) marks forty years of fighting discrimination since its founding at the height of this country’s civil rights movement, it is important for those of us in IRR not only to consider where we are going in the next decade but also to reflect upon how the last four have brought us to the point we have reached today.

I went to Africa as chair of the ABA-Africa Law Initiative, a division of the ABA’s broader new Rule of Law Initiative. This initiative carries out work that has as its common-law foundation the Magna Carta, generally recognized as the first limitation on the rights of the sovereign, the beginnings of rule of law principles. They were expanded in the U.S. Constitution, and the role of the court was further defined in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which established the precedent of judicial review.

The Lessons of Charles Hamilton Houston

But, from my personal perspective, the rule of law concept matured with the advent of Charles Hamilton Houston’s theory of the lawyer as social engineer. In the early1930s, in the pit of both the Depression and the Jim Crow era in the United States, Houston, then dean of the Howard Law School, developed a strategy for challenging the infamous U.S. Supreme Court decision of Plessy v. Ferguson, 163 U.S. 537 (1896), which validated state-imposed segregation by race. Houston argued that its holding that segregation was permissible only if states provided separate but equal facilities actually could be challenged on its own terms. Because, as everyone knew, facilities provided for nonwhites were not equal to those provided for whites, he proposed to use the law to force states that promulgated segregation to live up to their legal obligation under Plessy to provide equal facilities for all their populations . He knew that it would be impossible for states to meet that obligation; providing duplicate facilities for both whites and nonwhites would bankrupt them. The states’ inevitable failure to provide equal facilities therefore would force them, as a matter of law, to end the separation of facilities, thus destroying segregation.

Houston and his legal team first tested the strategy in Murray v. Pearson, 169 Md. 478, 182 A. 590 (1936), challenging the University of Maryland’s continuous denial of admissions of blacks to its law school. Houston, himself a Phi Beta Kappa graduate of Amherst College, initiated a proceeding on behalf of Donald Murray, another African American magna cum laude Amherst graduate who, like Thurgood Marshall and others before him, had been denied admission solely because of race. Murray and Houston ultimately prevailed, affirming the wisdom of Houston’s strategy of beginning at the graduate level and then working down to the undergraduate level, high schools, and finally grade schools to desegregate all public schools. This strategy took decades but culminated in the Court’s landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954), unanimously overturning Plessy because, the Court said, separate but equal facilities were inherently unequal.

The concept of suing for social justice did not originate with Houston; we have, for example, Brom and Bett v. Ashley (1781) before the Court of Common Pleas in Great Barrington, Massachusetts, and the Quock Walker cases: Walker v. Jennison (1781), Jennison v. Caldwell (1781), and Commonwealth v. Jennison (1783). See John D. Cushing, The Cushing Court and the Abolition of Slavery in Massachusetts: More Notes on the “Quock Walker Case,” 5 Am. J. Legal Hist. 118 (1961). In Quock Walker, the Supreme Judicial Court of Massachusetts applied the principle of judicial review twenty years before it was articulated by the U.S. Supreme Court in Marbury. What made Houston’s approach unique was his articulated tenacity in the spirit of Bett and Walker, supported by federal leverage provided by Marbury, to initiate a decades-long state-by-state campaign through the courts to systematically change the fundamental culture of America.

Throughout this period, the organized bar, including the ABA, which itself had denied blacks membership until the 1940s, generally had been silent on the issue of segregation. In 1963, however, when Alabama Governor George Wallace defied a federal court order that the state of Alabama admit two African American students to summer school at the University of Alabama, President John F. Kennedy called upon the legal profession to counter this defiance of judicial authority lest it lead to the destruction of the law as the nation’s core social fabric.

In response, Bernard Segal, Jerry Shestack, Lloyd Cutler, and others created the Lawyers Committee for Civil Rights to help desegregationists in the South. A few years later, they and others helped found IRR to help protect and advance civil rights, civil liberties, and human rights generally. From that point on, the ABA grew to become a staunch advocate for the rule of law nationally and internationally.

The ABA Commits Internationally

The ABA’s longstanding interest in international law had preceded even the founding of the Section of International Law and Practice in 1933. Beginning in 1983, however, when the association formally adopted Goal VIII, “To advance the rule of law in the world,” IRR and the International Law Section began a series of initiatives that provided the foundation for the ABA’s now extensive involvement in rule of law programs and concerns.

Along with the ABA Standing Committee on World Order under Law, ABA Sections already had been drafting and supporting rule of law letters, that is, letters from the ABA president to heads of other nations urging them to ensure compliance with international rule of law norms in specific cases before their courts. In 1986, during Mikhail Gorbachev’s program for openness and democratization known as glasnost, the ABA saw new openings for promoting the rule of law by working with the lawyers and judges of the Soviet Union and other countries. The ABA engaged the Association of Soviet Lawyers, the Collegia of Advocates in Moscow, and other organizations to address issues related to human rights, independence of the judiciary, independence of the bar, legal ethics, cross-border disputes, and an array of other issues in the Soviet Union.

This initiative led to ABA member participation in the USSR/USA Young Leadership Conference on the Law in Philadelphia in 1988; ABA participation in the first meeting of the All Union Association of Lawyers in the Soviet Union, which marked the beginning of the creation of an independent bar in 1989; and IRR’s groundbreaking ABA-Soviet Lawyer Internship Project, begun in the late 1980s, introducing young Soviet lawyers to the United States to work with major law firms, nonprofit organizations, and legal services and government offices to gain exposure to this country’s laws and legal practices. Today, many of those former lawyer interns are leaders in their own countries.

Success with these projects led to other efforts, including an ABA delegation to Armenia to review the situation in Nagorno Karabach and Nakhichevan in June 1990; a Moscow Conference on Law and Bilateral Economics in September 1990; an IRR/Young Lawyer Division delegation to Soviet Georgia in October 1990 to observe that country’s first multiparty elections, which were a precursor to Georgia’s independence; and the ABA’s observation of the Ceremonial Closing of the Soviet Union and the creation of the Russian Federation in December 1991.

In the early 1990s, the ABA created the Central and Eastern European Law Initiative (CEELI, now Central European and Eurasian Law Initiative) to provide technical and legal assistance for constitutional, governance, criminal, procedural, and civil law initiatives throughout the region. Through the years of the fall of the Soviet Union to the emergence of newly independent nations and struggling democracies, CEELI’s presence has increased dramatically. Indeed, similar programs expanded into so many regions outside of Central Europe and Eurasia that all such initiatives were encompassed under the umbrella of the Rule of Law Initiative, which now maintains divisions in Asia, Latin America and the Caribbean, and Africa to assist with such basic rule of law concerns as developing local constitutions, maintaining an independent judiciary, advocating for an independent legal profession, combating human trafficking, fostering ethnic tolerance, crisis zone mediation, and human rights treaty implementation.

The Rule of Law Initiative also undertook a War Crimes Documentation Project, encompassing citizen interviews, outreach efforts, and local skills transfer to help in the investigation and prosecution of war crimes and to increase public awareness of war crimes, their prosecution, and the role of accountability mechanisms. The Rule of Law Initiative is building upon the success of this project by establishing an independent, umbrella information collection and documentation resource and by supporting indigenous capacity-building efforts already underway in Sierra Leone.

IRR Leads ABA Efforts

IRR and its members have been leaders and/or participants in all of these activities. At other times, the Section alone has led. In 1994, for example, representatives of the Irish Republican Army (IRA) and the Ambassador of the Court of St. James addressed the Section Council on the status of investigations of alleged intimidation and murder of rebels and officers in Northern Ireland at the height of the conflict there. This meeting, believed to have created the first official dialogue in Washington, D.C., between representatives of the IRA and the government of the United Kingdom, was followed by ABA/IRR-sponsored observations of related trials in Northern Ireland and meetings between ABA and Irish bar leaders concerning ways bars could help address issues raised by the cases.

Integral to all these activities is the ABA’s commitment to promoting human rights here and around the world. From its 1970 proposal for an ABA resolution calling upon the United States to ratify the United Nations Genocide Convention, through its active advocacy of other human rights policies, to its sustained involvement in helping achieve U.S. Senate ratification of other UN human rights treaties, the Section has been at the forefront of ABA work in this area.

In 1995, IRR played a key role in advocating and planning for the ABA’s participation in the Fourth World Conference on Women in Beijing, China. Led by then ABA President-Elect Roberta Cooper Ramo, the ABA delegation also included past IRR chair and future ABA President Martha Barnett. Among the results of that meeting was the Clinton administration’s pledge, actively supported by IRR and the ABA, to achieve Senate ratification of the UN Convention on the Elimination of All Forms of Discrimination against Women by 2000.

The Section also was the initial proponent for establishing an ABA Center for Human Rights to help the ABA address human rights concerns more consistently and visibly. Today, two former Section chairs serve on CEELI’s boards and several Section leaders serve on the board of the ABA Center for Human Rights.

Despite all this historic work, the world situation today makes it incumbent upon us—as lawyers, ABA members, and IRR members—not only to continue successes but also to find new ways to promote and advance the rule of law and human rights protections in the face of the kinds of attacks on these basic values that have become more evident and prevalent in the years since the tragedy of September 11, 2001.

In one effort to address this need, then ABA President-Elect Michael Greco, another former Section chair, created the ABA Center for Rule of Law Initiatives in 2005. In November of that year, the center sponsored the first ABA Rule of Law Symposium to bring together a diverse group of lawyers and other opinion leaders to share their visions of the importance of the rule of law. Never before had such a tremendous range of elected and appointed officials, judges, bar association leaders, nongovernmental organization representatives, academicians, corporate leaders, philanthropists, and others gathered to address the questions of how to create and preserve a world of stability, freedom, and justice in the face of such potent global obstacles as terrorism, worldwide pandemics, corruption, and poverty. That conference was followed by a second last fall. A third, to be held in fall 2007, will be expanded into a World Justice Forum to broaden the scope of the dialogue, the participants, and the impact multifold.

Anticipatory to and consistent with this goal, more than one hundred bar leaders from more than forty countries and numerous national bars have adopted a Statement of Core Principles presented by President Greco during the annual meeting of the Parisian Bar in November 2005 that affirms lawyers’ commitment to

• an impartial and independent judiciary, without which there is no rule of law;

• an independent legal profession, without which there is no rule of law or freedom for the people;

• access to justice for all people throughout the world, which is only possible with an independent legal profession and an impartial, independent judiciary; and

• the idea that these core principles shall not yield to any crisis of the moment.

President Greco noted that adoption of the statement by bars around the world would create an unprecedented opportunity for lawyers and bar associations to work together in a joint defense of the rule of law and common pursuit of justice for all. The ABA House of Delegates unanimously adopted the statement as ABA policy in August 2006.

The Challenges Ahead

To date, the ABA and the Section have achieved a great deal in this country and abroad through the extraordinary contributions of many very dedicated staff and members who have acted as catalysts to steer our bar, our nation, and our world in positive directions.

But we also know that even in America, as elsewhere, our challenges still include defending the independence of our judiciary and legal profession, promoting access to justice for all, and ensuring that justice is administered in a fair and unbiased manner. We, like Charles Houston, must acknowledge that, just as achieving his vision is still a work in progress in this country, maintaining the rule of law is a rigorous, frustrating, and multigenerational undertaking. And some victories will be short-lived, necessitating that battles be won again.

We also must commit ourselves wholeheartedly to the global fight. The ABA must stand firmly and unwaveringly for the rule of law. We must determine what we can draw from our own legal traditions to help promote rule of law principles, but also what we can learn from our counterparts around the world. We must be prepared to leverage our credibility to seek justice and to work with like-minded colleagues in the profession, governments, nongovernmental organizations, and donor institutions to that end. And, while recognizing that there are no “silver bullet” solutions to many of the world’s horrendous injustices, we must commit to doing what we can whenever we can to further an effort that may require decades, perhaps centuries, to complete.

In addition, here and now in the United States, we must oppose the mindset that led to the abuses at Abu Ghraib, acceptance of extraordinary rendition, and rejection of long-standing international convention principles that have been part of U.S. law for decades and centuries. We need, yet again, to reaffirm the stature of the Geneva Conventions, the right of habeas corpus, the right to counsel, the right to examine evidence, and, indeed, the right to trial, and we must continue Houston’s battle for equality for all people in the United States.

We, as lawyers, need to continue to educate and advocate until the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities all are ratified by the Senate. We also need to help our nation regain its moral authority around the world by leading by example, including continuing our support of U.S. acceptance of the jurisdiction of the International Criminal Court.

In this still new century, when human trafficking/slavery is a huge business second only to drug trafficking around the world, we need to remember Houston’s approach to achieving dignity for those oppressed by barriers under the law: attack those walls one block at a time, if necessary, until their foundations crumble from lack of support. Like Houston, we can be victorious in our own battles as long as we remain dedicated to our principles and vigilant in defending liberty and pursuing the rule of law here and throughout the world.

Walter H. White Jr.

Walter H. White Jr., chair of the IRR Section from 1998 to 1999 and immediate past chair of the ABA-Africa Initiative, currently serves on the boards of the ABA Center for Human Rights and Rule of Law Initiatives. He is a partner with Grundberg Mocatta Rakison LLP in London, England.