Rule of Law Represents ‘Best Hope for Building Peaceful, Prosperous Societies’, Says Secretary-General as General Assembly Holds Thematic Debate
Rule of Law Represents ‘Best Hope for Building Peaceful, Prosperous Societies’, Says Secretary-General as General Assembly Holds Thematic Debate
|Department of Public Information • News and Media Division • New York|
Sixty-fifth General Assembly
Informal Thematic Debate
AM & PM Meetings
Rule of Law Represents ‘Best Hope for Building Peaceful, Prosperous Societies’,
Says Secretary-General as General Assembly Holds Thematic Debate
Panel Discussions Address Rule of Law and Conflict Situations, Development;
Intended as Contribution to Preparatory Process for 2012 High-Level Meeting
With calls for good governance, transparency, trustworthy legal systems and accountability for crimes ringing out from the Arab world to Africa, Asia and Europe, the rule of law represented the world’s “best hope for building peaceful, prosperous societies”, United Nations Secretary-General Ban Ki-moon told the General Assembly today during an informal thematic debate convened as part of the preparatory process for the high-level meeting on the rule of law planned for 2012.
“Strengthening the rule of law worldwide is a matter of utmost urgency,” Mr. Ban said, noting that the upheavals currently taking place around the world stemmed from the failure of Governments to hear the aspirations of their people. As a universal principle formed from a bedrock belief in the supremacy of a government of laws, not of men, the rule of law was central to the modern international order.
As the world community in general and the United Nations in particular entered “a new age of accountability”, it was time to think creatively about developing a global forum for dialogue, he said. As part of that effort, he particularly welcomed the Assembly’s 2012 high-level event on the rule of law, urging States to make the rule of law a “reality for all”.
He nevertheless acknowledged that in its efforts to promote policy coherence and strategic thinking on the rule of law, the United Nations faced four main challenges. Civilian capacity was not what it should be, while the financial resources allocated for strengthening the rule of law had not matched the rhetoric touting its importance. At the same time, the community of relevant actors was fragmented, and political obstacles must be overcome.
Speaking in her capacity as Chair of the Rule of Law Coordination and Resource Group, Deputy Secretary-General Ashe Rose Migiro, in closing remarks at today’s meeting, underlined the role played by the rule of law in preventing conflict and boosting sustainable economic development. Given its proven track record in promoting international law and assisting States in implementing their international obligations, the United Nations could provide a needed policy forum that brought together all stakeholders. “Let us do our utmost to shoulder that responsibility,” she said, calling on Members States in that regard.
Two keynote addresses from the Minister of Justice and Attorney General of Liberia and the Federal Minister for Foreign Affairs of Austria, highlighted the importance of rule of law initiatives from, respectively, a national and an international perspective. Together, their remarks reinforced the need to align international and domestic efforts to promote justice, peace and security, particularly in countries emerging from conflict. They also suggested that the rule of law was more than just an abstract goal; rather, it directly impacted the rights and interests of individuals.
In the morning, the first of two interactive round tables, which focused on “rule of law and conflict situations”, featured a vibrant debate on harnessing traditional legal systems, even as modern rule of law mechanisms were introduced to post-conflict societies. Speakers largely rejected the notion that there was tension between the rule of law and peace, with some stressing that the rule of law was not the final result of security, but security’s very foundation. Several panellists stressed that the United Nations must strengthen its approach to the rule of law, with one calling for a rigour to the issue that matched the Organization’s devotion to promoting human rights in the wake of the Second World War.
Discussion during the second round table on “rule of law and development” highlighted justice and the rule of law as critical ingredients to an overall enabling environment for social and economic progress. Many speakers argued that addressing poverty involved ensuring that the poor were able to voice their needs, seek redress against injustice, participate in public life and influence policies that ultimately shaped their lives. Similarly, one panellist warned that any poverty reduction gains made by investing development resources in women and girls would be short lived if they were not protected by a commitment to women’s rights and justice.
The first round table was chaired by Zeid Ra’ad Zeid Al-Hussein, Permanent Representative of Jordan to the United Nations and the panellists included Navi Pillay, United Nations High Commissioner for Human Rights; Jean-Marie Guéhenno, former Under-Secretary-General for Peacekeeping Operations; Ernest Petrič, President of the Constitutional Court of Slovenia; and Michael von der Schulenburg, Executive Representative of the Secretary-General in Sierra Leone. The second panel was chaired by Juan Manuel Gómez-Robledo, Deputy Foreign Minister for Multilateral Affairs and Human Rights of Mexico. Panellists included Helen Clark, Under-Secretary-General and Administrator of the United Nations Development Programme (UNDP); Michelle Bachelet, Under-Secretary-General for Gender Equality and the Empowerment of Women (UN Women); Anne-Marie Leroy, Vice-President and Legal Counsel of the World Bank; and Athaliah Molokomme, Attorney General of Botswana.
Bringing the debate to an end and also summarizing points made throughout the day, General Assembly President Joseph Deiss (Switzerland) stressed the rule of law as the foundation of United Nations. “It really is our business,” he said, emphasizing the place of today’s interactive debate in shaping the discussion at the United Nations on rule of law in 2012.
The General Assembly will reconvene at 10 a.m. on Thursday, 14 April, to hold an informal interactive thematic debate on human security.
The General Assembly met today to hold an interactive thematic debate to examine how strengthening the rule of law can contribute to addressing key global challenges. Convened by the Assembly President in partnership with the Rule of Law Coordination and Resource Group, which oversees the overall coordination and coherence of rule of law within the United Nations system, and its secretariat, the Rule of Law Unit, today’s debate is intended as a key step in the lead up to the high-level meeting on the rule of law scheduled for the first week of the Assembly’s sixty-seventh session in 2012.
A principle of governance at the heart of the Organization’s mission, the rule of law is both an end in itself and a means of attaining the fundamental goals of the United Nations Charter in the fields of peace and security, human rights and sustainable development. In the 2005 World Summit Outcome Document (document A/RES/60/1), Heads of State and Government reaffirmed their commitment to an international order based on the rule of law, further acknowledging its importance at the national and international levels to sustained economic growth, sustainable development and the eradication of poverty and hunger.
Kicking off the debate, General Assembly President JOSEPH DEISS (Switzerland) highlighted events taking place in the Middle East and North Africa, stressing that the aspirations motivating events there mirrored those of people in countries around the world to achieve freedom and justice. Thousands of men and women were making their voices heard in order to strengthen the rule of law, as well as to secure their own rights. International law and order based on the rule of law was at the very heart of their goals. It was also the essential means of achieving the Charter’s fundamental goals.
He said that, following today’s debate, which was a key step on the way to the high-level rule of law meeting to be held at its sixty-seventh session, the Assembly would continue, through its Sixth Committee (Legal), to work on the issues of rule of law. Today’s first round table, which would focus on rule of law in conflict situations, would address the means of better strengthening the judicial systems’ operation. The second round table would underscore the rule of law’s contribution to development. By reinforcing the quality of and respect for institutions, as well as a balance among them, the rule of law and the protection of rights were crucial for stimulating investment and mobilizing resources. Moreover, access to justice for all and the principle of equality were essential in allowing the poorest to participate in society.
Expressing confidence in the quality of the coming debate, he urged participants to seek answers on how to bolster the international community’s coordination, coherence and support to the expansion and strengthening of the rule of law around the world.
United Nations Secretary-General BAN KI-MOON said that, from Africa to Asia to Europe, the call for good governance, transparency, protections against corruption, trustworthy legal systems and accountability for crimes and violations of civil rights was being heard. The principle being championed was universal; a bedrock belief in the supremacy of a government of laws, not of men. That principle — the imperative of the rule of law — was central to the modern international order. “It represents our best hope for building peaceful, prosperous societies,” he said. (Remarks issued separately as Press Release SG/SM/13505)
Indeed, all too often, upheavals taking place around the world stemmed from a common source, he said, a Government failure to hear the aspirations of their people. Citizens wanted a fair say in their future, laws that were publicly promulgated and legal systems that advanced economic activity. “Strengthening the rule of law worldwide is a matter of utmost urgency,” he said.
The United Nations had come a long way since 2005, he said, when the General Assembly had first met in plenary to discuss the rule of law. Today, there was a greater focus on transitional justice and, thanks largely to the work of the International Criminal Court, crimes against humanity and large-scale human rights violations would no longer go unpunished. “We are entering a new age of accountability,” he said.
United Nations peacekeepers were helping countries build or reform their police, justice and corrections institutions, he said, while mediation teams were providing advice on Constitution-writing. Moreover, a group chaired by the Deputy Secretary-General brought together the Organization’s nine entities most active in that area, with the aim of promoting policy coherence and strategic thinking. In such work, there were four main challenges. Civilian capacity was not what it should be and the financial resources allocated for strengthening the rule of law had not matched the rhetoric touting its importance. Further, the community of relevant actors was fragmented and political obstacles must be overcome.
Welcoming the Assembly’s 2012 high-level event on the rule of law, he said: “It is time to think creatively about developing a global forum for dialogue.” While seemingly unrelated, the recent burning of the Koran in Florida related to the rule of law. Condemning such acts, he said the rule of law was the very foundation of civilization and was grounded in respect and mutual understanding, not demonization of “the other”. Those responding to hate speech with violence must also be condemned. While the world would witness other such inflammatory acts, he urged the Assembly to recognize that human beings must coexist if they were to enjoy a peaceful and prosperous future. “Let us make the rule of law a reality for all,” he said.
CHRISTIANA TAH, Minister of Justice and Attorney General of Liberia, said weaknesses in the rule of law sector were widely recognized as having played a strategic role in her country’s 14-year civil war, with feeble governance and limited access to justice as major contributors. The war had compounded those deficiencies, eroding social institutions and leaving the Liberian justice sector with its infrastructure in ruins. In turn, public confidence in the justice system floundered, which led to a breakdown in law and order.
Such lessons had crystallized the fact that a functioning, credible and transparent rule of law system was indispensable to sustained peace and development, she said, emphasizing that building such a system in any environment was not easy and Liberia’s myriad needs could make it an enormous undertaking. Yet, when the current Administration had taken over nearly six years ago following free and fair elections, it had identified the re-establishment of the rule of law as among the nation’s critical challenges. Consequently, in 2008, its three-year Poverty Reduction Strategy prioritized initiatives aimed at rehabilitating such systems. The Government had shown strong ownership over the process, requiring regular meetings with partners to review progress.
Describing that process, she said Liberia had seen a number of foundational successes, having worked hard to integrate security sector reform and rule of law initiatives in a “synergistic” fashion. New institutions had been created, including the Law Reform Commission, and human capacity built through recruitment and extensive cross-sectoral training. The Government had shown unwavering commitment to combating sexual and gender-based violence through law reform and the creation of a special court, along with a dedicated crimes unit, combining investigative and prosecutorial responses. Moreover, there had been a focus on increasing access to justice in rural areas.
Among the challenges, the task of ensuring a holistic approach was critical to successful rule of law programming. “An effective police service achieves little without complementary advances in prosecution and corrections,” she said. Rather than acquiescing to support based on donor interests, the Ministry of Justice had become more aware of its areas of needs and been able to define its funding priorities endogenously. The lack of donor coordination continued to be a major concern, as did sustainability, given that the modest national budget struggled to support the expanded justice and security sectors.
Continuing, she said insufficient attention had been given to the need to address the disintegration of social institutions and the subsequent adverse affects on social values brought about by the war, as well as the lasting trauma endured by the population. Addressing that trauma was a prerequisite to meaningful reform. Finally, the importance of sustained partnership and funding was critical to allowing Liberia to rationally plan and implement rule of law programming, noting that world economic crises could alter donor commitments and leave programming plans without a budgetary foundation.
As for the way forward, she said Liberia stood at a critical point in its recovery, struggling to cope with myriad challenges raised by events in Côte d’Ivoire and to prepare for upcoming 2011 general elections. For Liberia to continue in its successful trajectory, it would be essential to develop the capacity to address more sophisticated criminality, such as drug and human trafficking. Her Government recognized it must work with international and domestic civil society partners to promote peacebuilding, alongside the justice and security sectors. To that end, she welcomed the start of two new funding and coordination mechanisms that would guide such work: the Justice and Security Trust Fund, which had been activated in February, and the engagement of the Peacebuilding Commission, which would link justice and security sector reform in an integrated fashion.
Offering an international perspective on the rule of law debate, MICHAEL SPINDELEGGER, Federal Minister for Foreign Affairs of Austria, said he had just returned from a trip to the Middle East, where he had witnessed people’s yearning for freedom and dignity, which came through democratic participation, respect for human rights, access to justice, equality before the law and accountability. In essence, people were crying out for reforms that enhanced the rule of law. Their leaders must listen to those voices and implement the necessary reforms; at the same time, those reforms could not be accomplished overnight. Assistance from the international community would be required.
While several countries in the Middle East had arranged for a peaceful transition, the Libyan regime had, regrettably, decided to wage war against its own people, he said, calling on Muammar Al-Qadhafi’s regime to stop all attacks against civilians. All parties to the conflict must, he stressed, abide by their obligations under international humanitarian law.
He said that today, six years after the 2005 World Summit, where the world community had reaffirmed its commitment to an international order based on the rule of law and international law, and encouraged States to become parties to treaties that protected civilians and accept the jurisdiction of the International Court of Justice, it was time to take stock. Had those goals been achieved and promises been fulfilled? Had the international community remained true to its commitments?
Overall, the promotion of the rule of law had become a “fixed star” in the work and discussions of Member States, he said, noting the inclusion, since 2006, of “the rule of law at the national and international level” on the Assembly’s agenda. Annual reports on the rule of law were prepared by the Secretary-General and discussed in the Sixth Committee. The Security Council had also given growing attention to the rule of law, holding two open debates and adopting two presidential statements on the issue in 2006 and 2010. Important resolutions in various rule of law areas, including the protection of civilians, children in armed conflict and women, peace and security, had been adopted.
Still, serious gaps remained, he said, stressing that States should reinforce their efforts to promote an international order based on the rule of law and international law, with the United Nations at its core. Those efforts should include ratification and implementation of relevant international agreements and the settlement of disputes by peaceful means. In that regard, the United Nations should continue its efforts to organize treaty events and assist States in ratifying and implementing international instruments.
Stressing that efforts to promote the rule of law should focus more on prevention, he quoted a 2004 report of the Secretary-General, which said that “in matters of justice and rule of law, an ounce of prevention is worth significantly more than a pound of cure”. Indeed, recent years had seen remarkable efforts on the rule of law, transitional justice and peacebuilding in conflict and post-conflict situations, including in combating impunity. Critically, those achievements contributed significantly to the prevention of conflict. Lessons must also be learned from the most recent events, to assist States in their reform efforts prior to the outbreak of conflict, he added.
Continuing, he said that rule of law activities must enhance local perspectives and national ownership, with support for rule of law based on national assessments, national needs and aspirations. The consideration of women’s needs and their full and equal participation must also be ensured. Effective strategies in that area must support technical capacity and political will for reform. Noting that the fight against corruption was critical in that regard, he pointed out that the agreement establishing the International Anti-Corruption Academy, an Austrian initiative in cooperation with the United Nations Office on Drugs and Crime (UNODC) and INTERPOL, had entered into force on 8 March and all Member States were invited to join it.
Further stressing the need to improve coordination and coherence in rule of law activities, he said cooperation, not competition, was needed. A global “team spirit” that consolidated the fragmented approach of multilateral and bilateral rule of law assistance must be developed. While that would not require rewriting the existing rule of law architecture of the United Nations set out in the Secretary-General’s 2006 report, it would require, he suggested, a renewed collective commitment to its effective implementation by all actors both at Headquarters and in the field. In that context, the Rule of Law Unit should be provided the necessary staff and non-staff resources from the regular budget.
Echoing the Secretary-General, he urged Member State to think creatively about developing a forum for dialogue among all stakeholders. Under the auspices of the United Nations, that forum could convene States, international and regional organizations and other actors to address current challenges. In conclusion, he stressed that efforts to promote the rule of law at the national and international levels did not serve an abstract goal, but strengthened the protection of the rights and interests of individuals.
ESHAGH AL HABIB(Iran), speaking on behalf of the Non-Aligned Movement, said that the rule of law at the national and international levels had been on the agenda of the Sixth Committee for the past five years and the Movement’s members had been following that item with high interest. The Movement continued to attach high importance to the subject and believed that respect for the rule of law was essential in maintaining international peace and security and achieving sustainable socio-economic development.
While the Assembly had decided, by adopting resolution A/RES/65/32 on 6 December 2010, to convene a high-level meeting during its sixty-seventh session, it had made clear that the modalities of that high-level meeting would be decided at the Assembly’s sixty-sixth session. That agreement, he stressed, was the result of extensive discussions in the Sixth Committee, which had not included discussion or agreement on possible preparatory events. Yet, the background paper on today’s thematic debate specifically stated that the debate would serve as a “key step in the process leading to the high-level meeting” and was meant to “draw out common ground” and “foster agreement on the modalities” for the meeting.
While the Movement fully recognized the critical importance of the rule of law at the national and international levels and supported United Nations contributions to meet that end, he expressed its “discomfort” over the fact that its Members had not been consulted on the scheduling of the current event, or on its procedural and substantive aspects. Thus, he stressed that the interactive thematic debate should not be associated with the deliberations held in the Sixth Committee, nor should the event and its outcome prejudge or direct the deliberations to be held during the sixty-sixth session to finalize the modalities for the 2012 high-level event.
He urged the Assembly President to conduct the necessary consultations in similar cases in the future and in accordance with practices established by the Ad Hoc Working Group on Revitalization of the General Assembly to ensure fair reflection of views and concerns of interested groups and States in debates. The Assembly should play a leading role in promoting and coordinating efforts in support of international law in securing peace and security, rule of law, economic development, social progress and human rights for all. But the international community must not replace national authorities in establishing and strengthening the rule of law. Moreover, that support could only be provided at the request of national authorities.
He further underlined the need to account for the customs and national political and socio-economic realities to prevent the imposition of pre-established models on Members States that would hinder the resolution of existing problems within each country. Reiterating the Movement’s position that it was indispensable to maintain balance in developing the national and international dimensions of rule of law, he said that among the most critical elements in that regard were the principle of sovereign equality among States; the need for States to equally respect and comply with their obligations under treaties and customary international law; the need to respect the legitimate and legal rights of States under international law; and the principle of the prohibition of the threat of or use of force in international relations and peaceful settlement of disputes, which should constitute the cornerstone of the rule of law at the international level.
General Assembly President DEISS recalled his opening statement that the informal thematic debate would not prejudge the high-level meeting, and expressed surprise that the Non-Aligned Movement was criticizing how the current meeting was being conducted. The request to hold the meeting had, he noted, come from the Group of Friends, which included many of the Movement’s members, including Jordan, which would chair the first round table. Moreover, he had trouble understanding why the Assembly President was accused of not providing information about the meeting, when it had been conveyed to each of the regional groups.
He stressed that the thematic debates were designed to make it possible for the President to organize informal meetings on topics of his choice. He was not under the impression that he had to proceed with formal consultations for an informal debate. Concluding on a positive note, he thanked the Movement’s contribution relating to the Assembly’s revitalization.
Panel 1: “Rule of law and conflict situations”
Moderated by Zeid Ra’ad Zeid Al-Hussein, Permanent Representative of Jordan to the United Nations, the panel featured four speakers: Navi Pillay, United Nations High Commissioner for Human Rights; Jean-Marie Guéhenno, former Under-Secretary-General for Peacekeeping Operations; Ernest Petrič, President of the Constitutional Court of Slovenia; and Michael von der Schulenburg, Executive Representative of the Secretary-General in Sierra-Leone.
Opening the panel, Mr. AL-HUSSEIN said discussion of the rule of law at the United Nations had first emerged in 1999 in the Special Committee on Peacekeeping Operations, upon its receipt of the Brahimi Report, which underlined the need for a model criminal code. The ensuing discussion had been “very tough, fundamentally ideological and dogmatic”. Participants had only managed to pierce the terse exchanges when they began to examine the host of United Nations experiences on the ground. Building on that, the Missions of Finland and Jordan had organized workshops on those issues, work that was taken over by the United Kingdom in the Security Council and the Austrian mission outside that body, with the help of other Governments.
The central recognition was that “war creates crime”, he said, clarifying that he was not referring to atrocity crimes commonly associated with war, but rather the presence of the war profiteer — the smuggler of weapons, fuel and narcotics who would often bind with others to create black market activities and not only survive the war but thrive with added momentum. The affected country could only hope to defeat them if two early conditions were filled: it must be first provided with security and then be in a position to deliver a judicial system to its people.
If a State could not do the latter, the international community must undertake such work in its place, he said, supplying a model criminal code and efficiently running the police, judiciary and corrections. With those systems in place, the country could hope to extinguish organized crime and eventually embrace the inflow of foreign direct investment. It was also clear that national ownership would be “firmly in the driver’s seat in relation to those issues”. Should States fail to grasp the importance of security and justice, the sole beneficiaries of such inattentiveness would be organized crime, the very offspring of war itself.
Kicking off the discussion, Ms. PILLAY said the rule of law was the bedrock for the legal protection of human rights. As situations in Côte d’Ivoire and Libya had shown, when people’s will was not respected as a basis of government, anger would emerge and human rights violations would become a daily occurrence. Insisting on respect for international human rights law, international humanitarian law, international refugee law and international criminal law was a cornerstone of the collective response. Supporting victims’ quest for dignity and justice required a strong collective message that impunity would not be tolerated.
Turning to the operational framework in which such rights were protected, she outlined three challenges: knowledge, capacity and commitment. First, knowledge of human rights norms, options for their realization and awareness of past violations all contributed to conflict prevention. Relevant authorities might need a well-informed appreciation of the options available, as well as an analysis of which combination of law, regulation and policy was best suited to address specific problems.
There was a good deal of knowledge available to help Governments and other actors at the national level, she said, for example the Special Procedures of the Human Rights Council and United Nations treaty bodies. Rule of law and institutional reform must be built on cumulative knowledge and could not start with a “clean slate”. Understanding the patterns of past human rights violations and ensuring accountability led to a successful transformative process. It was essential that solutions involve a “participatory” process, particularly in the area of transitional justice. People affected by conflict must be empowered to make informed decision about how to exercise their rights and obtain redress.
Regarding capacity, she said implementing rights required the expertise of trained personnel, with the relevant legal, cultural and language backgrounds. But, conflict often drained a country of such resources. Her Office was currently building capacity in 54 countries. An important development in that regard was the United Nations review of civilian capacity in the aftermath of conflict, following the independent report of the Senior Advisory Group. She agreed with its conclusion that sustainable peace was not possible in the absence of a stronger civilian capacity. Her Office was advising on how post-conflict capacities in the area of human rights could be strengthened. It was important that States develop or refine their own capacity to investigate and prosecute gross violations.
Finally, she said Government commitment was necessary to redress a pattern of abuse in their own or other countries, expressing concern at rule of law deficits and human rights protection gaps in States where there was protracted conflict. Commitment gaps also had arisen at the international level, acknowledging that the formulation of a United Nations strategy to eliminate sexual abuse in peacekeeping operations had addressed one important gap. It also was clear that support given by the Organizations’ peacekeepers to non-United Nations security forces must avoid complicity in violations. Governments must be reminded of their obligations and both the Human Rights Council and human rights treaty bodies had a clear role in that regard.
In sum, “we must demonstrate our commitment to the victims”, she said. In March, her Office had launched the report of the Panel on Remedies and Reparations for Victims of Sexual Violence in the Democratic Republic of the Congo, mainly based on the testimony of 60 survivors. The lack of reparations for victims caused irreparable damage to the fabric of societies and, in turn, posed serious threats to the prospects of reconciliation. Also, her Office was exploring ways to build effective partnerships with the Peacebuilding Commission and Fund.
Mr. GUÉHENNO stressed that while there was sometimes a perceived tension between the rule of law and peace, the whole experience of crisis situations faced by United Nations peacekeeping operations contradicted that. Indeed, the rule of law was not the final result of security, but security’s very foundation, and as such, was the essential component of any strategy to consolidate peace. A society at peace was predictable, because standards of rules could be counted on and respected. They thus created permanent confidence and trust. In particular, institutions supporting the rule of law inspired confidence that complaints could be brought and resolved before a court. That simple expectation defined societies living at peace and was needed wherever attempts were being made to re-establish peace or prevent conflicts.
Saying conflict existed where such expectations did not exist, he noted that in Haiti’s recent past it had been safer to seek protections from gangs, rather that from the police. Similarly, in the eastern Democratic Republic of the Congo, militia members often held positions of security and that situation sent out messages that destroyed the rule of law. In that context, it was clear that for a State to make a transition from conflict to stability, individual protections had to be handled by the judiciary and police. Where the judiciary was incapable of effective action, the vicious circle of violence could not be broken. In such cases, citizens no longer sought the protection of the law, but of those who wielded the most powerful weapons. As a result, the State itself would have no confidence in its own forces — which undermined the State’s legitimacy, making it incapable of, among other things, collecting taxes. Without legitimacy, the State would fall at the first hurdle, creating a dangerous situation. In the final analysis, that multiplied the threat of violence.
The international community must ask how it could do better, he said, stressing that doing so started with security-sector reform, which was closely linked to the rule of law. In fact, there could not be a credible and professional security force composed of war criminals, especially at the higher levels, and the reform of a State’s police force was the most critical step in security-sector reform. Nevertheless, security-sector reform must be understood as only one part of the transformation of the rule of law. Without a judicial capacity, the State could not follow up on its security efforts and that lack of accountability would destroy the people’s goodwill. Clearly, reform that was not accompanied by an equally successful effort to implement a justice system would not succeed.
From his current vantage point outside the United Nations system, he believed it was imperative that the various elements of the system work together in the wake of conflict by taking a comprehensive approach. Actions that had immediate impacts were also needed, since many aspects of reform depended on being implemented quickly, including those related to criminal law and property rights, including on land issues. The future of a country was defined by its embrace of the rule of law, but the mechanisms of transitional justice were too often understood narrowly, as if they were instruments to deal with the past, rather than the future. In that context, national systems, which often received a fraction of what they needed, should not be neglected.
Underlining the need for a stronger partnership between the United Nations and its Member States, he suggested that the United Nations did not have within its own system all the resources required to support the rule of law. Among other things, the United Nations should develop core capacities and States must organize themselves accordingly. While the traditional contribution of troops to peacekeeping operations was still needed, contributions must also be expanded to include police forces capable of supporting national development, as well as non-uniformed personnel. Concluding, he said that the absence of the rule of law might not only cause untold suffering among a particular country’s people, it might also become a threat to international peace and security. There was, therefore, no larger priority than developing a common understanding of what was meant by the rule of law.
Next, Mr. PETRIČ said the rule of law should be approached at both the national and international levels, as they were “two sides of the same problem”. A State could claim to have rule of law when the rights of its people and legal persons were legally protected, when those persons had access to courts and further, in a manner whereby justice was not inappropriately delayed. The rule of law also entailed that people believed it existed. In a society in which people believed they were so protected, even the most politically difficult disputes could be peacefully resolved by referendums, plebiscites, arbitrations and mediations, as well as decisions of the highest or constitutional courts.
Without the rule of law, even judicial institutions were not trusted — and could never be — because their functioning was harmed by corruption, misuse of law, and a delay of judgements and failure to enforce them, he said. Elections were believed to be falsified — which was often the case — and results were disputed, and considered invalid, often sparking mass protests. Indeed, the rule of law was extremely important in the case of post-conflict societies, especially when institutions were destroyed and the trust in the law was broken. Legal and judicial institutions were built anew in an atmosphere of mistrust. To ensure people’s trust that their rights would be respected in the reconstructed society, it was of crucial importance to secure the rebuilding of “all what is essential” to the rule of law. Failure to do so could result in the post-conflict society slipping into corruption, crime, instability and violence.
In the international community, the rule of law was based on international law, its application and progressive development, he said. Without the rule of law, the international community would consist of sovereign States with no central authority. There would be anarchy in the Hobbesian sense. To function, the rule of law must provide for the protection and security of the weak. Given that, it might be concluded that securing the rule of law should be a high priority for the United Nations, he said, adding that States must understand that there were no short-term solutions. Crucial to that was an awareness that the rule of law could be trusted, which itself would only be achieved when it reflected the reality that efforts were being made to fight organized crime and corruption, establish special courts or prosecuting units, for example, and ensure timely access to judges. Without that, it remained only an illusion.
As for the United Nations, he said it should promote the rule of law as an important matter, with rigour similar to that devoted to the promotion of human rights after the Second World War. Good governance and zero tolerance for both corruption and organized crime must be promoted, and strong assistance provided to countries in transition. Moreover, the United Nations should support the activities of national, regional and international associations of judicial professions. In the long run, regional and subregional courts of human rights might be established. A new special international court also could be conceived and modelled after the International Criminal Court, authorized to prosecute corruption cases.
On the promotion of the rule of law, he said United Nations statements at international conferences should underline the crucial importance of the rule of law for peace, security and human rights. States should be encouraged to accept the jurisdiction of the International Court of Justice and join the International Criminal Court. Further, States should be consistently invited to join existing international conventions, and additional efforts should be given to educational endeavours, such as the International Law Commission Seminar.
Mr. VON DER SCHULENBURG said that while he agreed that the rule of law was important, a large percentage of citizens in countries in the early stages of state-building did not consider it a primary concern. In fact, many would not even know what the international community meant when it invoked the rule of law. However, they did yearn for justice, which often meant the protection of rights, access to health services, markets, roads and national resources. For many — particularly women — it also meant living free from violence. Among other things, that difference meant that country elites, as well as people coming from outside, including those in the United Nations, must give greater respect to individuals to allow their voices to be heard.
He cautioned that in many countries, a restrictive view of the modern rule of law and court system did not provide that type of justice. In countries like Sierra Leone, where he was currently working, the sense of alienation and origination of violence grew in the gap between the traditional society and a modern society where both systems seemed to have failed. Moreover, in many of those countries, the modern legal systems had been imported and did not have the luxury of growing out of a long tradition. For example, judges in courts in many African countries still wore the dress of ancient European courts. In many places, there was also a general mistrust of lawyers, who were often seen as selling their skills to the highest bidder. At the same time, language barriers, as well as issues of funding and corruption posed barriers to accessing modern courts.
Against that backdrop, it should not be surprising that an estimated 80 per cent of conflicts were not brought before courts, but before traditional court systems, he said. Among other things, secret societies and patronage systems provided a way for many people to find justice and it was only when those systems were failing that people turned to violence to secure their rights. If modern, formal rule of law systems were too strongly pushed in those societies, it would only add to conflict, rather than reduce it.
He stressed that, while every modern State needed a modern legal system, traditional systems must still be acknowledged and the means of incorporating them in the modern system must be found. As one example, he noted that African justice systems were often built on arbitration, not litigation, as modern systems were. Also, legal agreements governing large investments in agriculture and mining often did not recognize the land rights of peasants, meaning that compensation was provided only for a missed harvest, rather than the lifetime cost of losing a natural resource, such as a mango tree. Other issues were also not well addressed, he said, citing the rape of nine women assaulted in the offices of the political opposition in Sierra Leone. In that case, not a single woman was willing to come forward and, in his estimation, that was due partly to shame, but more importantly to their mistrust of the modern legal system.
During Sierra Leone’s civil war, human rights abuses were committed not only by the rebels, but by neighbours against neighbours, he said. Yet, since the end of the civil war, there had been no systematic abuse of human rights. How could that change in just a few years? The Special Court for Sierra Leone had tried eight nationals at a huge cost, but the real problem was in the village and suburbs where people lived with each other. What had worked there — at a substantially lower cost — was the traditional way of talking them out. Without that, peace would have not be possible in Sierra Leone.
Responding, Mr. ZEID said he was not convinced that traditional settlement disputes worked in all cases, particularly those that did not involve land disputes, given his own experiences in neighbouring Liberia. Indeed, if they worked, those countries would not have fallen into conflict. Further, in cases where traditional systems collapsed and the modern legal system subsequently proved itself insufficient to uphold the rule of law, it was unclear how a society could return to its traditional system. He suggested there was an “intellectual inconsistency” in such an argument and urged Mr. von der Schulenburg to respond later in the debate.
Also, he asked, if it were true that the rule of law was so fundamental that a State without it could be described as lacking a central nervous system, why did the United Nations not have a single entity, such as a rule of law department, for delivering relevant advice?
In the ensuing discussion, Government representatives said the rule of law was among the most important norms for peaceful coexistence. Establishing the rule of law required the creation of a legal system, “key soft infrastructure”, as one representative explained, which, once created, was neither complete nor functioned autonomously any more than other types of infrastructure. All States had a duty to regularly re-examine how law might best be disseminated and understood.
Some delegates underlined the key role of the International Criminal Court in prosecuting and punishing crimes under the Rome Statute. Others discussed the importance of national ownership and reflected on the development of international justice with the creation of mixed tribunals, such as that in Cambodia, for example. Still others emphasized that traditional and community justice mechanisms could also play an important role, but cautioned that those mechanisms should operate within bounds of international human rights standards.
In that context, one delegate touched on the relevance of modern mechanisms in dealing with rule of law issues and human rights abuses. Mr. von der Schulenburg had mentioned that the Special Court for Sierra Leone had cost over $200 million and asked what he had meant when he said that greater results could have been achieved by relying on traditional domestic legal mechanisms, rather than those brought in from the outside.
Responding, Mr. VON DER SCHULENBURG stressed that he was not arguing against the rule of law, but pointing out that a modern legal system largely bypassed a significant proportion of the citizenry. To avoid that, traditional systems must be taken into account. If the traditional system of a paramount chief was declining, it was unclear who owned land. Also, he had raised the example of the rape of nine women to point out that the court had done nothing, not because there was no rape, but because there was no claimant. Moreover, he agreed that there was a danger in traditional systems, owing to their lack of codification. But, that did not mean the international community should turn away from them.
Ms. PILLAY said that, in the rule of law, there was no one size that fit all. The United Nations had been actively engaged in setting standards, including in human rights norms, starting with the Universal Declaration of Human Rights and continuing with subsequent treaties. There was safety in those standards. She stressed that the rule of law did not rule out arbitration. Moreover, traditional systems had to be regulated and, in doing so, it was important to look at universal standards that had been established. She added that her staff had never, in its interactions in the fields, encountered a person who defended their right to be tortured. Further, the Special Rapporteur in charge of toxic waste had investigated a company that dumped toxic waste in Côte d’Ivoire and that company had subsequently been prosecuted in two European courts. “I can’t see any traditional system addressing this, nor can I see any traditional system bearing accountability for State actors and the chiefs themselves,” she said.
Saying that neither traditional nor modern systems should be idealized, Mr. GUÉHENNO stressed that both could be manipulated. He agreed that the international community was not good at managing the interface between the two. The merit of the point was not that the rule of law was abstract, but that it derived from politics and power relations, meaning that the norms governing a society were produced by what was an essentially political process.
As for the question on a single delivery system from the United Nations, it was his sense that the problem was not that there was too much capacity, but not enough. The United Nations needed a much clearer distribution of roles — and some discipline in maintaining that distinction — than was currently the case. Too often, everyone wanted to do everything. Then, at the end of the day, there was not enough. He suggested the better response was not necessarily the consolidation of effort in one entity, but a much more disciplined approach to what was, in essence, a lack of capacity.
Mr. PETRIČ said the rule of law was not just a problem for developing countries and focusing on them was a paternalistic mistake. Traditional means of settling disputes existed in every country, to varying degrees. When citizens believed the courts were corrupt or didn’t believe in traditional mechanisms, they didn’t believe in the rule of law, which harmed both human rights and development. As for United Nations institutions, he was unsure if a single body was needed, but more priority attention on the rule of law was clearly required.
In a second round of questions and comments, delegates said that promotion of the rule of law was among the strongest remedies against conflict. By providing accountability for mass atrocities, some said, authorities had shown commitment to the rule of law. One representative asked Mr. von der Schulenburg for his views on how the right to a fair trial and how court decisions could be seen within the context of traditional justice mechanisms. Within the United Nations, there was a Special Rapporteur for the Independence of Judges and Lawyers and a Rule of Law Unit, among other mechanisms, and he asked whether the United Nations internal setup was sufficiently strong or how it could be strengthened.
Another delegation asked about the importance of having a legal identity and about issues related to the legal empowerment of the poor, while a question was also posed on how to tackle the crucial link between the rule of law and return of refugees and internally displaced persons.
Expressing one underrepresented view, a delegate said it would behove States to re-examine traditional systems, as “we can’t just dismiss them hook, line and sinker”. It would take time to drag the “big powers” before even the most modern and formal systems. The rule of law was a power play. Traditional systems had much to offer, while he also appreciated that they must be combined with more modern, formal systems.
Another representative pointed out that transitional justice efforts had not been shown to increase the risk of relapse into conflict. Unredressed human rights violations were a catalyst to violence. He underscored that while the number of those prosecuted in some tribunals might be small, they represented senior people. It was hard to see what basis for peace would have been created if they continued to play “spoiler roles” and undermined peace in various countries.
Responding, Mr. VON DER SCHULENBURG said the Special Court for Sierra Leone was protected by two walls, both with barbed wire, and surrounded by 250 guards. It had cost between $200 million and $500 million to prosecute eight people. He was not saying that they should not have been tried, but the entire justice system in Sierra Leone had never had that much money for building a formal justice system, and the question must be asked as to whether the current system was having the intended impact. Moreover, Sierra Leone’s Constitution was about 250 pages, he said, and someone had told him it was “only good for hitting someone over the head with”. It was so sophisticated it was not understandable to most. It must be changed because people must identify with it, as it was part of the national identity. It should be a political instrument.
Ms. PILLAY said a traditional system could be guided by the rule of law. Whatever kind of legal system, it must be credible, transparent and governed by norms and standards to which all subscribed. Treaty bodies had addressed procedures in developed countries, like rendition and conditions at Guantánamo.
Mr. GUÉHENNO said justice was a fundamental urge of any human being, an issue that raised the question about how outsiders could support that urge. “There, we’re honestly still learning,” he said. Doing nothing was not a good answer, while delivering justice from the outside was a negation of that justice. There was no such thing as an international community — there were emerging universal norms, not a universal polity.
Rounding out the responses, Mr. PETRIČ said that, without the rule of law — be it traditional or modern — there was no justice. Any organized society used traditional and modern rules, but the point was that they were legal rules. They should not be political rules.
On the return of refugees, he said that was among the most complicated problems in post-conflict societies, as it contained legal and political aspects, as well as emotions like fear and anger. Laws should be put in place and courts should decide all matters in that regard. As for a special court for organized crime, he recognized the concern at the cost of justice, but said the problem of organized crime had become so huge that States must seriously consider how to tackle it on an international level.
Participating the discussion were the representatives of Japan, Sri Lanka, Netherlands, Bosnia and Herzegovina, Uganda, Pakistan, Croatia, Germany and Cuba, as well as an observer of the European Union and a speaker for the International Centre for Transitional Justice.
Panel 2: “Rule of law and development”
Moderated by Juan Manuel Gómez-Robledo, Deputy Foreign Minister for Multilateral Affairs and Human Rights of Mexico, the second panel featured presentations by Helen Clark, Under-Secretary-General and Administrator of the United Nations Development Programme (UNDP); Michelle Bachelet, Under-Secretary-General for Gender Equality and the Empowerment of Women (UN Women); Anne-Marie Leroy, Vice-President and Legal Counsel of the World Bank; and Athaliah Molokomme, Attorney General of Botswana.
Opening the panel, Mr. GÓMEZ-ROBLEDO said the biggest challenges had arisen in countries emerging from instability or conflict. For its part, Mexico’s institutional strength stemmed from political change in 2000, and strengthening the rule of law was among its foremost priorities. Mexico had succeeded in transforming its institutions, and recently, Congress had approved constitutional reform, guaranteeing reparations for the breach of human rights.
As the first panellist, Ms. CLARK said working to establish and support the rule of law was central to UNDP’s mandate. Such work was an important objective in its own right and critical to development progress. Under a firm rule of law, a country was more likely to equitably share its economic progress, which helped to ensure social dignity and build social trust. That, in turn, gave people a stake in reducing crime in their communities. Advocacy by the United Nations and a number of State initiatives had deepened the understanding about the rule of law for development and the need to integrate such planning into development efforts.
For its part, UNDP believed that strengthening the rule of law required strong and capable institutions operating on the basis of rules set up to serve the people, she observed. Empowered citizens who understood their rights and had confidence that their institutions would deliver legal redress indeed drove development forward. UNDP supported countries’ capacity to apply the rule of law in a fair and inclusive manner, and growing numbers of countries were now requesting such support to enhance institutions — formal and informal — that provided security, justice and legal protection. In Indonesia and the Lao People’s Democratic Republic, for example, UNDP had supported the development of national justice strategies with an emphasis on expanding access for women and minorities.
In other areas, she said, UNDP had substantially scaled up its rule of law programming in 22 of the 34 States that lagged the furthest in achieving the Millennium Development Goals and further supported the establishment of mobile courts in “Somaliland”, which had had the “remarkable” effect of increasing the number of cases adjudicated in a single year by 28 per cent. With partners like the United Nations Children’s Fund (UNICEF), UNDP was supporting research on rule of law programming, especially for women’s empowerment. The added value of UNDP’s work lay in its emphasis on capacity development and national ownership in security, justice and legal protection.
Ahead of the high-level meeting on the rule of law next year, it was important to focus on what the United Nations development system could do at the country and regional levels, she said. The international community could do more to invest in national and local efforts to improve the administration of justice and legal protection. In such work, legal empowerment and community-based approaches should be a priority. Moreover, UNDP took seriously its duty to lead coordination of the Organization’s development system, she said, noting that the contributions of United Nations country teams must be aligned based on their respective strengths. Further, United Nations Development Group funds, programmes and agencies, bilateral actors and Government partners must work together to ensure that justice, security and legal empowerment approaches were central to development policy and programming. UNDP brought to that task its global architecture of knowledge, policy development and rule of law programming. The agency facilitated South-South cooperation within and across regions on security, justice and legal empowerment.
Finally, establishing the rule of law must be seen as integral to overall development strategies designed to improve governance and advance inclusive growth, she said. Strengthening national justice and security systems, establishing peaceful dispute-resolution systems and advancing legal empowerment could help countries advance their national development agenda. Ways to harmonize the rule of law between national, regional and global levels could also be explored.
Ms. BACHELET said the linkages between the rule of law and development were multiple and gender-sensitive rule of law reforms were critical building blocks to furthering development. She noted that the powerful link between focusing development resources on women and girls, and achieving poverty reduction goals was now well established, adding that if those investments were not protected by a commitment to women’s rights and justice, their gains would be short lived. Securing equal access to justice for women and men began with ensuring that the laws themselves treated both equally and fairly. To that end, the legal concerns facing women must be addressed in the legal framework, and robust mechanisms must also implement laws in a gender-equitable way.
She said that while laws themselves were insufficient to deliver justice for women, the contribution of strong foundations must not be underestimated. Indeed, laws that were properly implemented and enforced catalysed a change in attitudes and practices. Research showed that while almost one in three citizens believed violence against women was unacceptable in countries with no laws prohibiting domestic violence, that number fell to approximately one in five in countries with such legislation. Even where strong laws were in place, however, women still faced obstacles, she added, stressing that women and girls could not participate in development and poverty reduction when they were crippled by fear of violence, mass discrimination and deprivation of property and inheritance rights. “Justice for women is a development imperative, as well as a basic human right,” she said.
Although the obstacles to justice were common and might seem overwhelming, she argued that real gains were being made, particularly due to partnerships that addressed the gender dimension of the rule and law. UN Women’s 2011 flagship report, Progress of the World’s Women, highlighted concrete innovations, starting with the fact that the first and truly effective mean of improving women’s access to justice was increasing women’s visible presence and leadership across the justice system. Institutional innovations, such as “one-stop shops” that gathered judicial service in one place, must be designed to overcome the specific obstacles facing women. Mobile courts, which aimed to deliver justice rapidly using limited resources, represented another gender-responsive justice service. One such court had been used to convict nine soldiers in the mass rape of more than 40 women and girls on New Year’s Day in Fizi, in eastern Democratic Republic of the Congo.
Continuing, she said that while those and other innovative reforms were vital, they could not stand alone. If informal justice systems were not also strengthened, the majority of women would still not achieve equal access to justice. For many women, particularly those in developing countries, customary justice systems remained the only source of conflict resolution. Yet, they were often deeply gender-biased and must be transformed. Among other things, the work of UN Women showed that, when given the knowledge, resources and opportunities, women could offer alternatives to the structures of injustice from the inside.
She further stressed that during the crucial transition from conflict to peace, securing justice for women was particularly urgent, since impunity for crimes against women not only made a mockery of the rule of law, but hindered recovery. Despite long-running debates over the tension between peace and justice, she emphasized that, from the point of view of women, there could not be peace in the long term without justice. While the International Criminal Court had made significant gains in that area, international justice mechanisms would only ever be able to prosecute a handful of perpetrators. Thus, the vast majority of those crimes must be addressed through national transitional justice mechanisms, starting with women’s right to reparations. Indeed, reparations were, paradoxically, the best mechanisms to most concretely bridge the rule of law and development divide. They provided a vehicle for public acknowledgment and justice, while also delivering the resources needed for recovery. For that reason, UN Women was working with the Office of the United Nations High Commissioner for Human Rights (OHCHR) to establish a fund for redress for victims of sexual violence in the Democratic Republic of the Congo, and to identify how such reparations programmes could be used around the world.
Next, Ms. LEROY said the rule of law was important to overall development and the attainment of the Millennium Development Goals. “Sometimes, however, we do need reminding that getting the basics right is always the prerequisite to any successful development project,” she said, underlining that the key was to better communicate that rule of law systems were never immutable, or reached a fixed end state. Instead, they were in a permanent state of innovation, governing and adapting to societal change. Indeed, among the positive features of most developed country systems was their ability to continually and peacefully change.
While international norms were important for guiding outcomes, sustainable justice systems must be driven locally, she said. The nature of something as “just” was linked to the fact of it having been arrived at by way of a legitimate process, which invariably meant responding to the people to which it would apply. Indeed, the crisis engulfing the Middle East and North Africa had shown that greater citizen participation and better governance were crucial for economic development, and the World Bank would do more to emphasize both areas of work.
As for how the rule of law contributed to economic growth, she said a country’s justice system shaped whether firms could rely on their contracts, whether citizens had recourse from policy breaches and whether corruption was punished. For years, the World Bank had supported the creation of robust investment climates to encourage productivity and wealth creation, as part of its main approach to combating poverty. Since 1994, it had invested more than $850 million in 36 stand-alone projects focused on strengthening the justice sector. Taking “stand alone” and component operations as part of its wider work, Bank lending from 2005 to 2010 to support the rule of law averaged $335 million annually.
While such programmes had produced positive results, “we must not stop here”, she said, noting that good governance would not happen without the participation of citizens and clear communication between society and Government. Regarding the fight against corruption, she said developing countries lost an estimated $20 billion to $40 billion each year to bribery, embezzlement and other corrupt practices. The Bank sought to address those areas, where possible, with anti-corruption analyses now streamlined into all investment projects. Along with UNODC, the Bank was home to the “Stolen Asset Recovery Agency”, which supported efforts to end safe havens for corrupt funds.
Turning to the integration of the rule of law and development, she said the Bank had a unique role in that regard, as nearly every undertaking invoked questions of law and justice, from building roads to supporting health services. As for going forward, the Bank must listen to client needs and ensure it responded within its area of comparative advantage. It was working to strengthen its knowledge management and monitoring and evaluation frameworks, and had learned the importance of looking beyond assumptions of generalized impact to consider the specific justice needs of the poor.
Ms. MOLOKOMME observed that the rule of law referred to a state of affairs where the law literally ruled supreme, governing the lives of citizens and Government business. In that context, a defined legal framework for governance was known and predictable, and where details were unknown to ordinary citizens, they were at least ascertainable. As such, the rule of law might better be described as “rule by law” and it presupposed the existence of a separation of power between the executive, legislative and judicial branches of Government. Often likened in Botswana to the three-legged cooking pot commonly used throughout Southern Africa, those three branches were interrelated, even as they exercised their mandates without undue interference from the others. Finally, the rule of law also required that the Government and its officials should be accountable to the people. That accountability must be clearly set out in the law, alongside remedies should breaches occur.
She stressed that the rule of law placed obligations on both the State and citizens. The citizens, in particular, must be reminded that they had a stake in the rule of law and should invest in its promotion rather than viewing it as a one-sided entitlement to which they were passive recipients. Also, the rule of law was more meaningful if it was given legally and binding effect by a supreme document, such as a written Constitution and other written laws. Supporting institutions — including independent courts, ombudspersons, human rights and other commissions, legal aid and anti-corruption agencies — were also needed. Those characteristics applied equally at the international level, she added, underlining the need to ensure alignment between the national and international levels.
Turning to the linkages between the rule of law and social and economic justice, economic growth and sustainable development, she said Botswana’s modest economic achievements had been greatly facilitated by its investment in a functioning democracy and a clear and predictable legal framework, including respect for human rights. Such an approach allowed investors to operate without fear that their property rights would be interfered with arbitrarily. That, in turn, led to increased levels of employment, rising household income and improved livelihood standards. To ensure sustainability, Botswana was giving important attention to protecting the environment, and had passed an environmental impact assessment act.
Turning to issues of investment and trade laws, she said harmonizing those was especially important, so that the rules-based system was codified and predictable. In the absence of harmonized laws, bilateral agreements on both trade and investment could help create an environment conducive to investment. Regional initiatives and collaboration were also important, she said, highlighting the Southern African Development Community’s (SADC) Protocol on Finance and Investment, as well as its Protocol on Trade. On the issue of transnational crimes, she noted that the challenge in Africa was a general absence of legislation to combat trafficking in drugs and women and children, as well as weaknesses in enforcement and collaboration where laws did exist. While it had ratified the Anti-Trafficking Protocol, Botswana did not have domestic legislation on trafficking. It was, however, an active member of INTERPOL and the Southern African Regional Police Chiefs Cooperation Organisation (SARPCO), and had taken steps to collaborate with neighbouring countries on issues of extradition and mutual legal assistance.
She went to say that local participation and ownership were critical to ensuring the success of the rule of law, stressing that local needs should be taken into account in any development initiative. Botswana’s national Government had done that for years, by holding consultations with local communities at their kgotlas, or traditional meeting places. Yet, the Government had learned that, because the traditional forum inhibited the participation of women, youth and marginalized communities, more focused discussions with specific interest groups were also necessary and could produce more meaningful consultations. Another lesson from Botswana’s experience was that, in operating a dual legal regime, clear provisions regarding the application of both regimes were needed, as was the establishment of minimum standards based on fundamental rights and freedoms. It was also important to curb potential abuses of human rights carried out under the pretext of preserving or restoring traditions.
In the ensuing discussion, Government representatives observed that access to justice and the rule of law were critical to creating an overall enabling environment in countries for social and economic progress. Addressing poverty involved ensuring that the poor were able to voice their needs, seek redress against injustice, participate in public life and influence policies that ultimately shaped their lives.
In that context, some speakers pointed out that development was increasingly affected by transnational challenges, such as crime and corruption. How could the international legal environment be more effective in dealing with those challenges, particularly in the return of assets acquired through illegal means? Discussion focused on non-State actors that respected neither the national nor international rule of law, a problem exacerbated in failed States that lacked central authority. How could non-State actors be included in the concept of the rule of law? Questions also centred on the three most important achievements that the rule of law should bring to the “citizen on the street”.
Other queries centred on the importance of the rule of law in the creation of an equitable international trade system, and especially on the private sector’s role, which was also important for sustainable economic growth. Several speakers agreed that, although an “intangible investment”, the rule of law was critical for development, especially as the protection of private property was the basis for all types of innovation. Countries that vigorously developed the rule of law could experience more stable development and more easily keep in mind citizens’ aspirations in policymaking. Still others noted that such efforts must be complemented by appropriate management of financial systems, consolidation of workers’ rights — through modern labour legislation — and the creation of budget laws.
A final speaker pressed the international community to fulfil obligations made at large development conferences, and the United Nations to better coordinate its own rule of law and development work in a more predictable and coherent manner.
Responding, Ms. CLARK said the rule of law should bring law and order, as well as equal access to justice. She also underlined how the rule of law helped businesses move from the informal to the formal sector by providing protections for their commercial rights. Stressing that coordination among donors was important, she said they must align with national strategies. Among other things, development actors could train criminal investigators, expand access for women and minorities to justice mechanisms and provide support for mobile courts.
Ms. BACHELET said reparations touched on many areas, from ending impunity to providing moral and material compensation. She highlighted the case of one woman, who, after being raped many times, said she did not want money, but only the understanding from her society that “rape is not my problem, but your problem”, in the sense that it was a societal issue, rather than merely an individual experience. Reparations could be both moral and collective, she added, noting that women rape victims in the Democratic Republic of the Congo had asked for the vote as compensation. She stressed the need to share best practices, including through South-South cooperation. Speaking personally, she said that Chile’s development was linked to its strong institutions, which provided a fair and predictable environment.
Ms. LEROY said law and order, as well as the enforcement of rights, could be summarized as “security” for citizens. That meant that their rights and property would not be violated and that, in cases where they were, recourse mechanisms existed. She further noted that, without enforcement of property and creditor rights, investment would not occur. While the rule of law impacted the private sector, the reverse was also true, with the private sector enhancing the rule of law through corporate social responsibility, including by respecting labour laws, fighting bribery and respecting the environment. Civil society also had a role to play, she added. Regarding comments on the division of labour, she suggested that a country-by-country perspective was necessary to ramp up efficiency.
Ms. MOLOKOMME said jurisprudence was needed to address the impact of non-State actors. The international community must also adopt behaviours that did not encourage non-State actors. When those actors did destabilize the rule of law, there was a need for action by regional organizations. She urged participants to avoid the “old trap of generations of rights. We need to help ourselves,” she told fellow Member States, stressing that leadership was critical in fighting corruption. “Without leadership, all the guidance from the United Nations system will do nothing,” she argued.
Participating in the discussion were the representatives of Nicaragua, Switzerland, Finland, Chile, Congo, Belize, Netherlands, Costa Rica, New Zealand and Pakistan, as well as an observer of the European Union.
Deputy Secretary-General ASHE ROSE MIGIRO, in her capacity as Chair of the Rule of Law Coordination and Resource Group, said the rule of law played a critical role in conflict prevention and provided a platform for sustainable economic development. The provision of legal protections for all, among other things, was among thebuilding blocks for peacefully resolving disputes and avoiding recourse to violence. The United Nations was a unique forum for tackling those problems. The Organization had been at the forefront of the promotion of international law and assisted States in implementing their international obligations.
Explaining that judicial and non-judicial mechanisms were critical to ensuring compliance and enforcement, she said that, in societies carrying a legacy of human rights violations, transitional justice mechanisms were essential to ensuring both accountability and national reconciliation. Accountability alone, however, would not prevent atrocities. Conflict prevention, peacemaking and peacebuilding must all be grounded in a robust rule of law framework that expanded police, judicial and correctional services sectors. Threats like transnational crime, terrorism and piracy created “cycles of fragility” and the international response must not only draw upon the rule of law, but be driven by national stakeholders.
Without judicial institutions, citizens could not participate in decision-making activities, she continued. In post-conflict settings, rule of law efforts could combine an acknowledgment of past injustices with the provision of resources to the most vulnerable populations in the aftermath of conflict. More generally, in poverty reduction efforts, the quality of justice available to marginalized groups, who were unable to express their needs and influence policies that shaped their lives, must be improved. Further, the link between women’s access to justice and fulfilment of the Millennium Development Goals must receive more focus, while concept of rules systems must be more integrated into policies aimed at realizing all aspects of economic and social rights.
While the United Nations continued to integrate its work, including through joint programmes, progress remained uneven, she said. Often, international efforts had not yielded expected results and the voices of national actors were absent from rule of law discussions. Conflicting approaches to the development of security institutions had been seen and, given the wide number of actors, there was a lack of strategic coherence. The record suggested the need for a policy forum that brought together all stakeholders, a role that could be fulfilled by the United Nations. Expressing hope for success at next year’s high-level meeting on the rule of law, she said: “Let us do our utmost to shoulder that responsibility.”
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