21st Century Global Rule of Law Under Siege

“In all societies, lawyers are essential to realizing rights enshrined in law . . .”

“Lawyers play a crucial role in shaping society and its institutions.”

21^st-century Rule of Law (“ROL”) is under siege and governmental accountability is losing ground across the globe. In many places there is wholesale violation of constitutional freedoms through widespread jailing of journalists, opposition politicians, and others, restrictions on the Internet, suppression of nongovernmental organizations, and attacks on judicial independence and courthouses. These reversals are so widespread and strikingly similar it seems that terrorists, and authoritarian and dictatorial regimes, are sharing a ROL-attack “best-practices” manual. The ABA has made valiant efforts to stem the tide, but worldwide erosion of the rule of law is accelerating.

Funding to combat ROL-abuse is eroding too. Annual U.S. foreign aid appropriations are less than 1% of the federal government budget. This aid is one of America’s most important tools for strengthening ROL, civil society, and democracy in the developing world. Yet, between fiscal years 2017 and 2020, the U.S. government reduced total foreign aid appropriations by 10% and reduced appropriations for Democracy, Human Rights, and Governance initiatives (including ROL) by 13%.

Clearly, today’s global ROL-development status quo is not enough – anti-ROL practices, ideology, and culture, and anti-democratic values, are rapidly spreading. What can be done? Fortifying and advancing the ABA’s current heroic work in global ROL is now vitally important. But imagine doing even more. This article proposes extending existing strategies by using the new virtual world – the Internet – and complimentary ABA memberships, to integrate thousands of developing country legal professionals, judges, prosecutors, lawyers (governmental and private) and law professors (DLCPs), into the dynamism of the ABA’s hundreds of sections and committees.

This virtual-learning and engagement strategy would reach DCLPs at all levels and practice areas. It would include professionals who are relatively isolated in their home legal systems, such as women, religious and ethnic minorities, disabled persons and lesbian, gay, bisexual, transgender, queer, questioning, intersex, and asexual (LGBTQIA) individuals. It would create a worldwide body of DCLPs attuned to the values of the ROL. And, this expanded rule-of-law grassroots community would swim in the free flow of ideas characteristic of ABA forums and help spread democratic values in countries characterized by undemocratic norms.

Defining ROL and Integrating the Proposed Virtual Strategy into the ABA’s Existing ROL-Development Framework

There is no broadly accepted definition of ROL. Here, ROL means a legal system governed by a constitution and prospective laws generated by representatives chosen through free and fair elections, ensuring access to justice, in which the government and its citizens are held accountable by the enforcement of constitutional and other rights through an independent judiciary. This concept of ROL requires skilled and ethical practitioners in courts, private practice and public service, as well as law schools and law professors, who are actively committed to the ROL.

No single strategy or template for ROL-development currently exists, but all share one universal objective: to enhance the legal skills, knowledge, and ethical values of DCLPs and thereby strengthen the ROL. The ABA, through the International Law Section (ILS), Rule of Law Initiative (ROLI), Center for Human Rights (CHR), and the International Legal Resource Center (ILRC), uses strategies that offer onsite, as well as online, training, organize conferences, and advise on drafting constitutions and statutes. There is also collaborative work with foreign bar associations and ABA leadership visits with DCLP leaders in developing countries.

The ABA does valorous work in these areas. Resource constraints, however, typically limit these efforts to one-time, face-to-face, events. Insufficient funding generally precludes follow-up. This proposed virtual strategy would not compete with existing ROL undertakings. Face-to-face events are gold but this proposed virtual strategy would be at least silver. It builds on the ABA’s exceptional initiatives by adding a continuous, interactive, digital, component.

The ABA Mission to Strengthen Global ROL

The legal profession is the heart of ROL. And building ROL is at the heart of the ABA’s mission. Goal IV of the ABA mission is to advance ROL “throughout the world.” ILS’s mission is “to promote professional relationships with lawyers similarly engaged in foreign countries.” ROLI’s mission is “to promote justice, economic opportunity, and human dignity through the rule of law.” ILRC’s mission is to “advocate for ... the rule of law on a global scale.” They are all uniquely positioned to strengthen global ROL by working closely with grassroots DCLPs. This virtual strategy is in their “sweet spot.”

21^st Century Assault on Global ROL in Developing Countries

A brief sample of current data in three areas of the assault on global ROL illustrates the present trend of diminishing ROL and governmental accountability in today’s developing countries.

ABA President Statements

Concern about sharpening attacks on ROL has risen to the highest levels of the ABA. During the four and one-half years ending December 2020, ABA presidents issued thirty statements calling out attacks on global ROL in: Afghanistan, Cameroon, China, Guatemala, Hong Kong, Hungary, Kenya, Malaysia, Myanmar, Nigeria, Pakistan, Poland, Saudi Arabia, Syria, Tanzania, Turkey, Venezuela, and Zimbabwe.

Falling Global ROL Rankings

World Justice Project (“WJP”) ROL Index Reports calculate ROL country scores and rankings for 113 countries. A “higher” score indicates a lower global ranking and “weaker” ROL – a score of 1 is the best and 113 is the worst. WJP rankings for 2014 and 2020 for five developing countries are shown below These countries fell between 12 and 48 places in rankings from 2014-2020, illustrating the global erosion of ROL.

Shrinking Fundamental Rights and Judicial Independence

Despite constitutional and other guarantees, many countries restrict, among other things, fundamental freedoms of association, expression, press, and judicial independence. Many have grown suspicious of foreign NGOs as agents of subversion and curb their work through harassment and vague and ambiguous legislation. Judges who seek to hold their governments accountable are increasingly punished.

Turkey

According to the ROL Index above, Turkey dropped 48 places, from 54^th to 107^th, between 2014-2020. The 1982 Constitution establishes freedom of religion and conscience, thought and opinion, expression, the press, association and assembly, speech, the press, religion and association. However, as of December 2020, Turkey was the second worst jailer of journalists in the world, with 37 behind bars. Prosecutors use very broad definitions of “terrorism” that criminalize, among other things, insulting the state or the president. As of June 2018, Turkey had removed more than 4,000 judges and prosecutors, a quarter of the total, on suspicion of links to the prior year’s failed coup - most were imprisoned, including two judges of the constitutional court.

Russia

According to the ROL Index above, Russia dropped 14 places between 2014 and 2020. The Constitution guarantees freedom of speech, the press, religion and association. However, a 2015 law allows prosecutors, without a court order, to declare foreign and international organizations “undesirable” and shut them down. Due to the risk created by ambiguity in the law, ROLI closed its Moscow office in 2016. In 2012, the government granted the state’s media regulator the right to block websites without a court order. Between 2015 and 2018, the government cracked down on individual users – even people who simply forwarded images or texts or clicked on “like” in the wrong place ended up in prison.

China

According to the ROL Index above, China dropped 12 places between 2014 and 2020. Article 35 of the Constitution guarantees freedom of the press, assembly and association. But state discretion in implementing these freedoms and the lack of mechanisms to enforce them undermines these constitutional protections. The 2017 Foreign NGO law says that “Foreign NGOs ... must not endanger China’s national unity, security or ethnic unity” and must register with security agencies. Critical terms, such as “endanger” and “national unity, security or ethnic unity” are not defined in the law, which creates uncertainty and risk. Anticipating this risk as the law was being debated, ABA ROLI closed its Beijing office in 2016.

In April 2013, the Communist Party circulated Document 9, identifying Western values of democracy and freedoms of expression, the press, and association as threats to the primacy of the government. Document 9 started a progressive erosion of the rule of law in China. Indeed, China was the world’s worst jailer in 2020, for the second year in a row. Forty-seven journalists are currently serving long prison sentences or are jailed in the Xinjiang region without any charges disclosed.

DCLP Setting and Profile

DCLPs in many places are trained in law schools and law faculties, and are parts of professional legal associations, insufficiently suited to addressing 21^st-century legal needs and global ROL challenges. Some law schools have introductory classes with 2,000 or more students in the lecture hall, limited libraries, limited or no audio-visual equipment, and limited on-line legal research or textbook availability. Many national bar associations provide law graduates with few or no opportunities for professional development through continuing legal education, bar conferences, or other support. There is little interaction across various levels of the legal profession: judges, prosecutors, governmental and private lawyers, law professors and law students.

In many developing countries, society is stratified, leaving many DCLPs, such as women, religious and ethnic minorities, and disabled and LGBTQIA professionals, relatively isolated. Additionally, in-country legal training may not be widely available, affordable, or even safe. Many DCLPs are underemployed or their compensation is very low. For instance, as of May 2017, many Egyptian entry-level DCLPs were paid US$ 500-1,000 per month – not enough to support a family. Accordingly, most DCLPs cannot afford to pay ABA dues.

Proposed ABA Virtual Grassroots Strategy for Strengthening 21^st-Century Global ROL

Extend Complimentary ABA Membership to DCLPs. The ABA and ILS have more than one hundred years of ROL experience and spectacular resources, now including 780 committees, and training, webinars and conferences, second to none in the world. The ABA should use this treasure-trove of experience and resources to further its global ROL-strengthening mission by integrating thousands of DCLPs into the ABA. Based on the economic profile of DCLPs, the ABA should maximize this reach by offering them complimentary memberships.

The ABA’s 780 committees address the entire legal spectrum, ranging from admiralty to intellectual property, judicial practice, mergers, and zoning. Total committee email traffic may be nearly two million emails per month. Approximately 200 conference calls per month conduct committee business, craft training programs, and listen to expert speakers.

The positive impact of integrating DCLPs with the ABA’s 780 committees seems boundless. These committees are cauldrons of intellectual energy that enhance the profession and our legal institutions. They also strengthen professional identity and pride through a wider sense of professional community. At a deeper level, they embody American lawyers’ visceral commitment to democratic values. Imagine building regularized on-going relationships and communication among a broad range of grassroots DCLPs and ABA lawyers - thereby boosting worldwide ROL-building capacity by enhancing individual DCLP professional capacity at the grassroots level.

Minimal Cost – No Loss of Revenue. Much ABA and committee activity is electronic. As we have learned during the Covid-19 pandemic, the incremental cost of electronically adding participants would be minimal. Further, most DCLPs are not currently members of the ABA because they cannot afford the dues. Bringing them into the ABA on a complimentary basis that would expand ABA ROL impact without sacrificing existing membership revenue is, well, virtually priceless.

Implementation. This strategy is not a quick-fix or sprint. It is a marathon. Its benefits will accrue incrementally over time as newer generations of DCLPs continually grow into leadership roles in their home countries. It will also enrich committee composition and may expand business referrals for ABA lawyers. It also reflects existing ABA policy to remove financial barriers to desired ABA participation of economically-marginal groups, such as students.

Let’s Use This Virtual Strategy to Enhance ABA 21^st Century Leadership to Overcome the Siege and Fortify Global ROL

The ABA is the vanguard of global ROL-development. No other organization can match its leadership, expertise, diversity, and resources. This virtual program would be an innovative, cost-effective, affordable, positive-sum, scalable, virtual strategy to strengthen ROL through capacity-building in developing countries at the grassroots level of the legal profession. Because it is virtual, it bypasses physical-world ROL obstacles, such as terrorist attacks on judicial actors, oppressive governmental elimination of rights-based NGO activity, suppression of constitutional freedoms, and impediments to the dissemination of democratic values. It can strengthen ROL practice and culture worldwide through the accretion of democratic values in an increasingly growing body of DCLPs.

With global ROL currently under siege and ROL-development funding shrinking, the ABA’s innovative leadership is needed now more than ever. ROL is in our DNA. In this era of increasing attacks on ROL, now is the time for ABA members to lead the world in using digital strategies to strengthen DCLPs across the planet, fortify 21^st-century global ROL and access to justice, and expand the ABA’s global membership and presence. Why not use this virtual strategy to fortify global ROL by immersing grassroots DCLPs in the largest, most sophisticated, and dynamic, legal association in the world?