II. A narrow conceptual approach to the design and implementation of initiatives to promote the rule of law

The predominant view of the UN until 2010 was to adopt a narrow conceptual approach to the design and implementation of initiatives to promote the rule of law at the national level (Kleinfeld, Reference Kleinfeld2012). This approach was based on the belief that institutional reforms, primarily of the judiciary and the police, and the revision or adoption of new laws, are the keys to strengthening the rule of law. Pursuant to this perspective, rule of law activities by the UN in developing countries have for the last decades targeted these matters (Stromseth et al., Reference Stromseth, Wippman and Brooks2006). Similarly, this approach stressed the role of the rule of law in economic development, but not the contribution of effective protection of economic, social and cultural rights, and development in strengthening and sustaining the rule of law.Footnote ⁵ Accordingly, the rule of law, human rights – particularly economic, social and cultural rights – and democracy were, for the most part, conceived as unrelated, and their promotion was pursued in separated tracks.

A major reason for the adoption of this perspective has been that the conceptual approach of the UN to rule of law promotion has largely been influenced by its activities in conflict and post-conflict societies, in which its predominant approach has traditionally been very narrow: with a large emphasis on prosecutions and a few other mechanisms to address human rights violations, and on institutional reforms, mainly of the judiciary and the police. That the conceptual approach of the UN to the rule of law has significantly been shaped by its activities in conflict and post-conflict societies is exemplified by the report of the UN Secretary-General entitled ‘Uniting our Strengths: Enhancing United Nations Support for the Rule of Law’, issued in 2006. In this report, the UN Secretary-General identified three rule of law baskets and sectors, largely based in the UN activities in this field in conflict and post-conflict societies (paras. 40–42), and stated expressly that:

According to the report, these activities include:

The first report by the UN Secretary-General on the rule of law related specifically to conflict and post-conflict societies. This fact is also indicative of the influence that the UN approach to its activities in these societies has had on the conceptual framework of the UN to the rule of law generally. In this respect, it is worth noting that while the report of the UN Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies of 2004 states that ‘(w)here transitional justice is required, strategies must be holistic’, it listed a significantly limited number of measures and mechanisms: individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals (para. 26). Notably, economic, social and cultural rights, and more broadly the need to consider socio-economic issues, were absent. Traditionally, when human rights have been taken into account in rule of law initiatives in conflict and post-conflict situations, they have mostly been equated to civil and political rights.Footnote ⁶

In subsequent documents, the UN also adopted a narrow conceptual approach to the design and implementation of initiatives to promote the rule of law at the national level. Notably, the Guidance Note of the UN Secretary-General on the UN Approach to Rule of Law Assistance issued in 2008 only implicitly recommends taking account of economic, social and cultural rights. It includes international human rights law as a basis of rule of law activities by the UN, arguably encompassing these rights, and provides that as part of the framework for strengthening the rule of law by the UN, a constitution should incorporate ‘internationally recognized human rights and fundamental freedoms as set out in international treaties …’ (p. 4), arguably including these rights.

At a more general level, the predominant view of the UN until 2010 is related to one of the two main types of theories on the concept of the rule of law, namely thin (procedural) theories. This type of theory is contrasted with thick (substantive) theories. Michael Zürn, André Nollkaemper and Randall Peerenboom describe well these two types of theories. As to the first type, they say the following:

Many proponents of thin interpretations of the rule of law draw on Lon Fuller's view that laws be general, public, prospective, clear, consistent, capable of being followed, stable, and enforced (Fuller, Reference Fuller1977; Zürn et al., Reference Zürn, Nollkaemper, Peerenboom, Zürn, Nollkaemper and Peerenboom2012, p. 1, note 1). For their part, and as Zürn et al. also indicate, thick or substantive conceptions of the rule of law include the elements of a thin interpretation, but add elements of political morality such as particular economic arrangements (free-market capitalism, central planning, etc.), forms of government (democratic, single-party socialism, etc.), or conceptions of human rights (liberal, communitarian, collectivist, etc.) (Zürn et al., Reference Zürn, Nollkaemper, Peerenboom, Zürn, Nollkaemper and Peerenboom2012, p. 1, note 1).

It should, however, be noted that there is another strand of UN practice up to 2010 with respect to the conceptual approach to the design and implementation of activities to foster the rule of law at the national level. While much less adopted in this period than the predominant approach, this strand recognised the interrelationship between, and the mutually reinforcing impact of, the rule of law, democracy, human rights and development. For instance, in 2005 the heads of state and government attending the General Assembly World Summit, stated in the Summit Outcome that:

III. Recognizing the interrelationship between, and the mutually reinforcing impact of, the rule of law, democracy, human rights and development: recent evolution of international practice

As mentioned, since 2010 the UN has increasingly adopted a broader perspective in the design and implementation of initiatives to promote the rule of law at the national level. In particular, it has recognised the interrelationship between, and the mutually reinforcing impact of, the rule of law, democracy, human rights and development. The UN Secretary-General Guidance Note on the United Nations Approach to Transitional Justice, issued in March 2010, is the first UN document published in this period of considerable importance. In it, the UN Secretary-General emphasises, in the context of UN activities in conflict and post-conflict situations, the need to effectively address violations of economic, social and cultural rights, and implicitly other socio-economic issues when they constitute the root causes of a conflict. In regards to transitional justice processes and mechanisms in particular, the Guidance Note includes among its guiding principles the following:

In addition, it puts forward the following rationales for the inclusion of this guiding principle:

The Guidance Note also includes, among the measures to strengthen the transitional justice activities of the UN, the following related to economic, social and cultural rights:

Similarly, the Report of the UN Secretary-General entitled ‘Strengthening and Coordinating UN Rule of Law Activities’, issued on 20 August 2010, states as follows:

Likewise, the report of the UN Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies of 2011 notes that violations of economic, social and cultural rights are increasingly recognised for their potential to lead to violent conflict (paras. 51–53).

I will now turn to the analysis of the ‘Declaration of the High-level Meeting of the UN General Assembly on the Rule of Law at the National and International Levels’ (hereinafter ‘the UN Declaration on the Rule of Law’ or ‘the Declaration’), adopted on 24 September 2012.

IV. Reflecting on the recent evolution of international practice

The first question that needs to be addressed is why the conceptual approach adopted in international practice to the design and implementation of initiatives to promote the rule of law at the national level is important. It is critically important in three respects: first, it delimits the dimensions to be taken into account when designing and implementing such initiatives in developing countries (Kleinfeld, Reference Kleinfeld2012). Second and third, it influences both the content and effects of these initiatives.

The next question is whether the recent approach by the UN, consisting of broadening the perspective to be adopted in the design and implementation of rule of law promotion activities, is adequate. While it is beyond the objective of this paper to provide definitive empirical data on the interrelationship between, and the mutually reinforcing impact of, the rule of law, democracy, human rights and development, and acknowledging the critical importance of the adopted concepts of these terms, in my view the answer is in the affirmative. This approach allows greater attention to be paid to some socio-economic and political issues that significantly affect the observance of the rule of law in many developing countries. In particular, the concept of human rights as included in the UN Declaration on the Rule of Law encompasses internationally recognised economic, social and cultural rights, which concern the satisfaction of basic socio-economic needs. Given the mass extreme poverty that exists in many developing countries and the significant effects such poverty has on the political systems of these countries, the recommendation that strategies to enhance the rule of law should also take into consideration the protection of economic, social and cultural rights is of significant importance. Equally, the concept of democracy requires that the political structure of the concerned country conforms to a series of principles to ensure that the government is fully representative of the concerned society.

In this respect, it should be noted that several scholars and other experts in this field identify the limited conceptual framework that traditionally has been adopted for the design and implementation of most rule of law projects in developing countries as a major reason why most of these projects so far have not been successful (Carothers, Reference Carothers and Carothers2006; Kleinfeld, Reference Kleinfeld2012; Peerenboom et al., Reference Peerenboom, Zürn, Nollkaemper, Zürn, Nollkaemper and Peerenboom2012). For instance, Stromseth et al. identify the fact that rule of law projects have been based on simplistic assumptions about the relationship between formal legal institutions and durable cultural change as a key reason for their failure (Stromseth et al., Reference Stromseth, Wippman and Brooks2006). In their view, the predominant approach that emphasises the role of structures, institutions, and the adoption of new legislation fails to recognise that ‘promoting the rule of law is an issue of norm creation and cultural change as much as an issue of creating new institutions and legal codes’ (Stromseth et al., Reference Stromseth, Wippman and Brooks2006, p. 75).

Accordingly, while with variants, increasingly scholars and practitioners emphasise the importance of paying more attention to political, economic and social structures in the design and implementation of rule of law promotion activities by international actors (Carothers, Reference Carothers and Carothers2006; Piron, Reference Piron and Carothers2006); political structures covering well beyond the justice sector. For example, in supporting their argument that rule of law reforms must be complemented by changes in social norms and practices, Peerenboom et al., maintain that those designing these reforms should take into consideration the broader social, political, economic and cultural context (Peerenboom et al., Reference Zürn, Nollkaemper, Peerenboom, Zürn, Nollkaemper and Peerenboom2012).

More directly, some scholars and practitioners maintain that power structures and cultural norms are the most important factors influencing the observance of the rule of law in a given country, and hence they should be the main objects of rule of law activities. Rachel Kleinfeld puts forward the following arguments to support the view that power structure is a key factor influencing the observance of the rule of law in a particular society:

While recognising the significant influence of politics in power structures, Kleinfeld notes that a variety of powerful forces may be opposed to the strengthening of the rule of law: the government or political parties, non-governmental power centres such as big businesses, or even organised criminals who have ‘captured’ a political structure (Kleinfeld, Reference Kleinfeld2012, p. 93). Kleinfeld also submits that ‘there is broad recognition within the community of aid givers that politics and power play a central role in development, and this work is beginning to seep into the rule-of-law field’ (Kleinfeld, Reference Kleinfeld2012, p. 16). In this respect, she mentions several developments in this direction amongst a number of international organisations and major donors (Kleinfeld, Reference Kleinfeld2012).

Similarly, Stephen Golub maintains that, for the strengthening of the rule of law, much more than reforms of laws and legal institutions, particularly judiciaries, is needed, including positive changes in the structural power relations among different sectors of society, particularly to benefit the capacities of the poor (Golub, Reference Golub and Carothers2006, pp. 105–106).

As mentioned, increasingly scholars and practitioners also identify cultural norms, that is popular and professional norms, as another important factor influencing respect for the rule of law in a given society (Kleinfeld, Reference Kleinfeld2012; Peerenboom et al., Reference Zürn, Nollkaemper, Peerenboom, Zürn, Nollkaemper and Peerenboom2012). In addition to pointing to the work of several influential thinkers throughout history, Rachel Kleinfeld puts forward the following rationale for this:

Insight from recent research demonstrating that strategies to promote the rule of law need to take further account of the recipient perspective (Peerenboom et al., Reference Zürn, Nollkaemper, Peerenboom, Zürn, Nollkaemper and Peerenboom2012), particularly the needs of local constituencies, is another reason why the recent approach by the UN to this matter is considered adequate. The mass poverty that exists in many developing countries means that basic socio-economic necessities are often ranked high among the needs of large segments of the population in these countries. Several studies conducted in conflict or post-conflict societies in nearly all regions of the world have confirmed this. For instance, a 2010 population-based survey of attitudes about various themes in Northern Uganda found that the fulfilment of basic needs and the provision of services were, according to the respondents, the most important priorities for the district and central government in order to achieve peace (Pham and Vinck, Reference Pham and Vinck2010, p. 19). Similarly, in their empirical study on the social reconstruction, and the impact of criminal trials on this process, in Bosnia and Herzegovina, Croatia, Yugoslavia and Rwanda, Stover et al. found that ‘[o]ur informants told us that jobs, food, adequate and secure housing, good schooling for their children, and peace and security were their major priorities’ (Stover and Weinstein, Reference Stover and Weinstein2004, p. 325).

Along the same lines, Rama Mani notes the desire of the Rwandan people to have the political and socio-economic inequalities that underlay the conflict addressed (Mani, Reference Mani2002, pp. 9–10). Likewise, several empirical studies on the work of the South African Truth Commission have shown that most victims who provided a statement or participated in public hearings of the Commission gave considerable importance to obtaining financial compensation and in general to measures addressing social and economic inequalities.Footnote ⁹

The need for rule of law promotion strategies to take into account the satisfaction of the basic socio-economics needs of the inhabitants of the concerned country is also increasingly recognised by key international actors. A 2012 Report of the UN Secretary General, prepared to inform the discussion at the UN General Assembly on the rule of law, stated that UN work on the rule of law needed to be more responsive to the demands for better socio-economic conditions in many countries,Footnote ¹⁰ and referred as examples to the protests and political changes in the Middle East in recent years and the aftermath of the 2008–2009 financial crisis (para. 48). It added that:

Based on these considerations, the UN Secretary-General suggested as a subtopic within the discussion on the rule of law by UN Member States at the Sixth Committee ‘the mutually reinforcing impact of economic development and the rule of law’ (para. 70).

It is also important to address the main arguments against the adoption by international actors of a broad perspective in the design and implementation of rule of law promotion activities, covering economic and political dimensions, in developing countries. One reason why international actors have avoided a broad conceptual approach in the design and implementation of these activities is the view that deliberately trying to influence the economic and political structures of another state is illegitimate and even against some fundamental principles of international law (Kleinfeld, Reference Kleinfeld2012, p. 92). I find this view unpersuasive, as there are several areas influencing the economic and political structures of a country in which international law recognises an active role for outside countries and international organisations as legitimate. The effective protection of human rights, including both civil and political rights, and economic, social and cultural rights, is an example of such an area. At the same time, it should be mentioned that, in defining which specific measures to take in these matters, such external actors need to act in good faith, take account of all relevant factors, and act in conformance with international law. In other fields, the role of outside states and international organisations should be more limited, mainly aimed to facilitate broad dialogue among local actors and, if requested, to assist in diagnosing country shortcomings and identify possible remedies.

As mentioned, the recent conceptual approach adopted by the UN to the design and implementation of activities to promote the rule of law at the national level recognises that the concepts of the rule of law, democracy and human rights have a distinct existence. Despite this, there is a danger that a very broad interpretation of the interrelationship between these concepts would blur the boundaries between them. It is therefore worth specifying what the interrelationship that exists between these concepts demands: first, that in the design and implementation of policies and initiatives in the field of the rule of law, the effective protection of all human rights and respect for democratic principles are taken into account; second, that policies in these three fields are coherent and co-ordinated. I will elaborate on the latter in the next section, when discussing the implications of the recent conceptual approach adopted in international practice to initiatives in the rule of law field.

In addition, the need to distinguish between various types of contexts when designing and implementing rule of law promotion activities at the national level should be stressed: conflict and post-conflict societies, including situations of international territorial administration, on the one hand; and other developing societies, on the other hand. Several subcategories of the latter can and should be identified according to the level of institutional and economic development, and other relevant criteria. These subcategories include socialist countries and least developed countries. It is important to distinguish between these contexts as, in addition to the objective differences that exist among them, the expected level of involvement of the international community in each of them differs, according to international practice.

In the concluding section, I will identify other factors that need to be taken into account in the implementation of the recent conceptual approach adopted in international practice to initiatives in this field.