Human Rights: It is Time for a Global Agreement on the Rule of Law

Source: Open Society Foundations

It is Time for a Global Agreement on the Rule of Law

April 19, 2012 | by James A. Goldston

The wave of protest across the Arab world has targeted everything from poverty and inequality to corruption and dictatorship. But a common refrain, as an activist here told me in Tunis recently, is popular demand for “the rule of law: impartial justice and an end to arbitrary government.”

In the past decade the rule of law has achieved talismanic status as the answer to many of the international community’s toughest problems. It’s the foundation for economic development, the antidote to terrorism, the linchpin of democratic legitimacy. If Barack Obama and Iranian President Ahmadinejad can agree on nothing else, they both praise the rule of law. Even President Yahya Jammeh of Gambia, who infamously threatened in September 2009 to “kill” human rights workers who criticized his government, nonetheless saw fit in a speech weeks later to hail “the rule of law” as a means of addressing “the complexities of today’s world.”

But while it has come to occupy central stage in political debates, there is little consensus on what the rule of law means in practice, or how to realize it on the ground.

All of which makes it timely that, when heads of state gather in New York at this September’s UN General Assembly, the “rule of law at the national and international levels” will be the topic of discussion.

The benign title masks a simmering conflict. Many developing countries want more “international” law to restrain the U.S.and other veto-wielding Permanent-5 powers on the UN Security Council, a body sorely in need of reform. By contrast, western donor governments are keen to focus on “national” rule of law needs in conflict regions of Africa and the Middle East.

Given universal enthusiasm for a concept whose meaning is so contested, is there any way to bridge the gap?

Rather than simply repeat the empty platitudes of the past, leaders must now offer concrete commitments.

Secretary General Ban Ki Moon has this month called on states to set clear goals promoting rule of law with indicators to measure progress over time, establish a regular forum for consultation among states and civil society to ensure that September’s discussion is not a one-off event, and make specific pledges to improve the rule of law in ways relevant to national context.

Useful steps forward are politically possible. And the need for more rule of law is so vast and varied that no state should be shy about acknowledging it can do better. To the contrary, pledging to take action in even one sector of an admittedly broad field would affirm the seriousness with which states take their responsibilities to the rule of law overall.

On the international level, states could commit to ratify certain treaties (the U.S. has yet to join the Convention on Discrimination against Women), respect the decisions of international tribunals (Brazil could halt its campaign of protest against the Inter-American Commission on Human Rights), or recognize as compulsory the jurisdiction of the International Court of Justice to resolve inter-state spats (Russia has yet to do so).

Domestically, states might pledge to permit anyone under police questioning access to a lawyer (as the European Court of Human Rights has urged Turkey to do), limit pre-trial detention to the maximum period of imprisonment in the event of conviction (some detainees in India reportedly languish for far longer), or develop an independent mechanism to investigate allegations of custodial torture (in countries like Kazakhstan, Kyrgyzstan and Uzbekistan).

Donor states in particular could use the occasion to establish a global fund for justice. By pooling resources from both private and governmental donors, and developing a financial reservoir to be tapped over time, the fund would curb the inefficiency and politicization of the current aid system.

Prudent investments in justice don’t have to be expensive. In the Democratic Republic of the Congo, mobile courts have fairly tried and convicted army soldiers for mass rape in far less time and at a fraction of the cost of international tribunals. In Nigeria, recent law graduates placed in police stations at modest expense have freed hundreds of persons who faced unnecessary months, if not years, in jail. In Sierra Leone, members of rural communities trained as paralegals for far less than the price of a lawyer have resolved land disputes and won community access to roads, electricity and environmental clean-up. In short, while more funding for justice is required over time, more intelligent donor assistance would help in the present climate of budgetary restraint.

Rule of law’s dualism—rooted in both law and politics, grand vision and everyday reality—is its attraction and its challenge. Its broken promise is visible everywhere—from the Dominican-born stateless child denied an education, to the Chinese blogger whose website is silenced, to the victim of racial profiling on the streets of New York. But its aspiration—that the law should apply equally to all—is what lends an overused phrase its compelling force. From now to September, diplomats must give it substance.