Argentina Doesn’t Understand

Kirchner’s government is criticizing the U.S. courts for their resolution of the vulture funds conflict.*

Or, more precisely, it doesn’t want to understand what the separation of powers and judicial independence, as the basic foundations of the rule of law, means, as well as that of individual rights and guarantees.

Last Thursday, the Kirchnerists presented the U.N. Court of International Justice, headquartered at The Hague, with a lawsuit against the United States alleging that decisions adopted by U.S. courts in the conflict over the vulture fund debt violate [Argentina’s] sovereign immunity. Argentina contends that the United States has committed a “violation of its sovereign immunity” and of “the international obligation to not apply or stimulate economic and political measures that force the voluntary sovereignty of another state,” according to a communication from the presidency.

“The United States’ international responsibility for the violation of the aforementioned responsibilities mainly comes from the action of one of its branches, the Judiciary,” explains the Argentine memo. Simply put, Argentina is suing the United States for decisions made by [federal judge Thomas] Griesa and affirmed by the New York appellate court and by the U.S. Supreme Court.

The lawsuit will not be heard before the court of The Hague because it was clear that the defendant, the United States, would give its consent to the court’s jurisdiction. On Friday, the Obama administration rejected it, which was more than predictable. All of this makes one think that the lawsuit didn’t have any more meaning than to add fuel to the progressive and nationalist fire that’s trying to consume Kirchnerism, perhaps with its gaze trained ahead toward 2015, when a Kirchnerist president is not in office. This way, Cristina Fernandez will step down as president, leaving no quarter against “the vultures,” creating one of the grossest examples of nationalism in Latin America.

All of this could be very useful for Cristina Fernandez’s future political career and her eventual desire to return to the presidency in 2019. But it’s not practical at all to generate the foundations necessary to help Argentina recover from its current prolonged freefall, despite its enormous potential to do so, given its natural and human resources. What’s missing in Argentina, on the other hand, are solid, stable and predictable institutions apart from those who wield power.

Among the country’s institutional weaknesses are noticeable breaches of the Constitution; of laws as important as international treaties that its Congress has ratified and made into their own. Without institutional strength, the strongest or most opportune law governs, generating corruption in spheres of power, an unfavorable investment climate, extension of poverty and social exclusion. Nothing, essentially, that favors economic development, social equality and sustainability.

The Argentine lawsuit, on the other hand, came one day after [economic] minister Axel Kicillof asked President Obama to intervene against the law. Surely Kicillof thinks that all countries would behave like his where the executive branch gives orders to judges individually, threatens them, and removes them without resistance for its own political interests. Separation of powers is that notable expression from Montesquieu that ended up establishing a system of checks and balances in government architecture, but which doesn’t even enter into the mind of Argentina’s economic minister, or its president. Or maybe if it occurs to them, they immediately reject it as being a challenge to their interests of limitless power.

Without separation of powers and judicial independence there is no check against the executive or legislative branches. Instead, there’s stronger tyranny. Because of that, in democracies that take pride in those things, it doesn’t occur to anyone not to recognize these principles in theory or in practice. And if these divergent ideas do occur to anyone, the electoral body will reject them like a malignant virus. Without separation of powers, a democracy is condemned to die at the hands of an autocrat who is legitimately chosen at the ballot box but later loses his or her legitimacy when they attack those same fundamentals of the rule of law; a danger against which one must always be vigilant.

*Editor’s note: A vulture fund is a private equity or hedge fund that invests in debt considered to be very weak or in imminent default. The term is a metaphor, often meant as criticism and considered derogatory, and used to compare the fund to the predatory behavior of vultures. See: Wikipedia.org/wiki/Vulture_fund and sources cited therein.