by Rhodri C. Williams
Last week, I had the pleasure of attending a seminar marking the tenth anniversary of Sweden’s government agency “for international peace intervention”, the Folke Bernadotte Academy (FBA). The topic of the seminar was rule of law (RoL) in general and this Tuesday’s UN conference on the issue in particular. The high level meeting at this year’s 67th session of the UN General Assembly is one of these periodic, frantic plenary meetings where all the states in the world along with a plethora of observers and NGOs culminate weeks of behind-the-scenes wrangling with (hopefully) the adoption of an outcome document that may push an important issue forward a few steps.
In the best case, the outcome will have legs even if the grandiosely named meetings themselves quickly fall into the obscurity of UN genealogy. Students are frequently bemused to hear that they failed to notice a “World Summit” hosted by the UN in 2005. However, few have failed to notice the resulting responsibility to protect (R2P) doctrine. And for those of us in the rights-based humanitarianism branch, the strong endorsement of the UN Guiding Principles on Internal Displacement buried in paragraph 132 of the Outcome Document may come to be seen as a pretty important step in the long march from soft law to opinio juris. But I digress.
Some of the talk at the FBA seminar was about the high-level politics of the high-level meeting, and particularly an emerging tendency to distinguish RoL as applied at the international versus the national levels. This has apparently been one of the key debates surrounding the drafting of the outcome document, with states that see domestic RoL as one of their own virtues more inclined to promote it to others (and the targets of their exhortations curiously more interested in the international variant). However, all indications are that there will be a buffet-style compromise, with both national and international RoL, as well as various ‘nexuses’ in between on offer.
This is perhaps most clearly evinced in the UN Secretary-General’s preparatory report for the conference, which proposes the adoption of a broad and often ambitious programme of action. Some proposals are simply unrealistic (states should ‘remove any reservations’ to UN treaties they have ratified, para. 12). Others are curious to the point of evoking typos (UN post-conflict RoL assistance should ‘promote gender’, full stop – para. 24). However, the overall feel of the document is quite sound, reflecting an increasingly emphatic accommodation of legal empowerment and economic/social concerns in an area of practice that arguably began as a bastion of orthodox civil and political imperatives.
For instance? Well, the core RoL concerns for states clearly take in “civil and administrative justice” (para. 18), though justice sector reform retains top billing in post-conflict situations (para. 24). Traditional and informal justice systems are recognized as playing an important role in paragraph 23, though the concrete recommendations here seem to focus largely on how such systems can be ‘tamed’ vis-a-vis their formal counterparts. Human development not only takes pride of place in the first paragraph but gets a more extended dusting off in paragraph 26. The importance of civic records and registration to accessing rights is stressed in paragraph 30, and numerous measures are set out for the empowerment of women and children in the subsequent paragraphs.
However, paragraph 29 will doubtless be of most interest to TN readers:
The equitable and transparent administration of housing, land and property based on rule of law principles is key to economic, social and political stability. Serious deficits in this area have caused many violent conflicts and prolonged displacement. In this connection:
Member States should resolve to put in place and fully implement housing, land and property governance systems that effectively protect international social and economic rights, with particular emphasis on ensuring women’s equal rights to housing, land and property, including through succession and inheritance.
The issue of where to place housing, land and property (HLP) rights within the UN system has been unresolved ever since they were formally debuted in the form of the Pinheiro Principles. For a long time, it looked as if the humanitarians had won the honors, but the best qualified agency to run with HLP – UNHCR – was leery of taking on such a large and uncharted protection sector, and the agency that stepped up – UN-HABITAT – lacked both the field capacity and the humanitarian background to readily charge into the breach. As a result, the HLP sub-cluster that was set up with great fanfare in the course of the broader humanitarian reform process has often failed to live up to expectations.
In the meantime, development actors have objected to the HLP mindset – and particularly the tendency to place property restitution on a pedestal – but have probably not minded all the attention the concept has brought to the core development issue of land and conflict. Rule of law actors have been more positively disposed throughout and were early in associating property restitution with transitional justice and victims’ reparations. So with rule of law gravitating toward legal empowerment and human development concerns, it should hardly be surprising that HLP issues are on the agenda. But will they remain there?
In an act of transparency well-worthy of a rule of law event, the UN RoL people have put the draft outcome document up on their website well in advance of the meeting. Granted that an outcome document is necessarily likely to be more focused and less comprehensive than a prior UNSG report. But neither my own slightly groggy skim nor the search function turned up a single instance of either an H, an L or a P. The jury will only truly come in after Tuesday’s session, but there are grounds to fear that whatever their significance to rule of law, HLP rights may once again have proven to be too controversial or too complicated for an unambiguous endorsement.
Addendum: One additional question that occurred to me in the course of the FBA discussion involved the extent to which the UN’s current attempts to coordinate the work of multiple internal and external RoL actors across various regions and thematic areas may be informed by the earlier humanitarian reform process. For starters, the UN is apparently developing thematic ‘Global Focal Points’ to coordinate responses to particular RoL issues that sound suspiciously like cluster working groups. Also of interest was an ‘early peace-building approach’ involving explicit attempts to promote coherent handovers between peacekeepers and subsequent country teams. Much along the lines of humanitarian ‘early recovery’. And finally, even poor stigmatised wat/san has its equivalent in the form of the equally neglected corrections sector in the RoL field…