by Rhodri C. Williams
Its been a busy 18 months in my new rule of law gig, and an eye-opening time to boot. While the range of issues falling under the rule of law umbrella is impressive in principle, I have found myself inevitably stove-piped in practice, with my housing, land and property (HLP) interests finding expression mainly in sporadic consultancies, and justice sector reform issues suddenly front and center in my professional life. Not that I am complaining, mind you.
Judicial reform is just another lens on the whole muddle of good intentions and mixed results I was approaching earlier mainly from a humanitarian perspective, and a change of perspective can be refreshing. I also expect that as I proceed down the rule of law road, I will have opportunities to unpack more and more of my HLP baggage along the way. But for now, it is very interesting to have at least a back row seat on the evolving definition of rule of law and how it relates to broader development assistance efforts.
Recently, a colleague (who I will hat-tip if she likes this post) sent me links to a pair of pieces that helped to crystallize some of the recent debates in this area in my own mind. The first was to a recent Washington Post op-ed by Gary A. Haugen of the International Justice Mission. Haugen describes the explosion of private security companies in the developing world and the extent to which this has resulted in a monopoly on protection from violence for the rich:
As elites abandon the public security system, their impoverished neighbors, especially women and girls, are left relying on underpaid, under-trained, undisciplined and frequently corrupt police forces for protection and all-but-paralyzed courts for justice. ….
When a justice system descends into utter dysfunction, those who exploit and abuse vulnerable people may do so without fear of apprehension or prosecution. As a result, violence is an everyday threat, as much a part of what it means to be poor as being hungry, sick, homeless or jobless.
Interestingly, this piece also exposes the great home truth about the ‘civil and political’ rights traditionally protected by judiciaries. Exclusive proponents of such rights (in countries ranging from the US to Sweden) have often lauded them for being ‘negative’ (in the sense that they involve government duties to refrain from taking actions), and therefore ostensibly cost-free to taxpayers.
This in contrast to social and economic rights, which are ‘positive’, entailing affirmative government actions (and expenditures), and therefore often decried as an unwarranted intrusion in the inherent right of governments to roll the pork barrels toward whichever constituency they choose. In the present case, the lurch toward private security has at least laid bare the extent to which courts actually represent a highly expensive ‘positive’ guarantee necessary for the equitable protection of any kind of rights.
Posted in Commentary
Tagged access to justice, ADR, customary law, development, FBA, ICCPR, ICESCR, ICG, ILAC, judiciary, MDGs, rule of law
by Rhodri C. Williams
I am very happy to announce the publication of a report I wrote last year on constitutional assistance for the Folke Bernadotte Academy in Sweden. The aim of the report is to discuss the trend toward greater international assistance to the ‘constitution-building’ processes that tend to accompany contemporary political transitions and post-conflict state-building efforts. It begins with an analysis of some of the debates that have characterized the emerging rule of law field of ‘constitutional assistance’ and goes on to describe the role of various actors at the international and regional levels.
The writing of the report was satisfying at a number of levels. One one hand, constitutional assistance is emerging as a very interesting field of activity, with more attention (if not always resources) from the UN Rule of Law machinery (not least in the form of a Secretary General Guidance Note), and a very active effort to digest and disseminate lessons learned, most recently in the form of extensive handbooks on constitution building by both Interpeace and International IDEA. The work also allowed me to re-engage with debates I had lost track of since my prolonged bath in post-conflict constitutionalism in Bosnia a decade ago. And not incidentally, it put me back in contact with Gianni La Ferrara, an old friend and constitutional guru from Bosnian days of yore.
The subject matter is inherently interesting, sitting as it does at the juncture of transnational dissemination of norms, international human rights and rule of law practice, power-sharing in divided societies and peace building. It is not without controversies as a result. Without going into detail on all of them (the report and its executive summary are available here), I will expand briefly on one which I think is perhaps most interesting, namely the question of whether the aim of ‘democratising’ constitutional processes comes into conflict with the tendency of international rule of law actors to interpose human rights norms into them.
One of the less memorable milestones for TN in 2013 will be the first passage of an entire month – January – without a single posting. The fact, as many of you are probably now aware, is that I have been completely taken up with some recent work with the International Legal Assistance Consortium (‘ILAC’, based here in Stockholm) on supporting rule of law efforts in Libya.
This work builds on research I did last year for the UNHCR on housing, land and property issues for IDPs and refugees in Libya, which had important rule of law and transitional justice implications. It also reflects a little bit of a return to the rule-of-law fold via another assignment last Spring, this one mapping and analyzing the emerging field of constitutional assistance for the Swedish Folke Bernadotte Academy (report to be published soon). The job with ILAC has involved core RoL concerns of the kind I started out with long ago in Bosnia – an assessment of the judicial system and the RoL institutions around it as both the objects and carriers of transitional reform.
So there have been a few changes in the make, and these have kept me very busy. One is a shift from freelance consultancy to something more in the way of a day job, and the other might be described as a shift in focus from a particular substantive concern (property) to the kind of institutions that safeguard access to and enjoyment of property and most other rights. Whatever comes of all this, I do plan to keep TN going, based on two equations. First, and most practical, less consultancy equals more disposable time (on that, more later, once I have extracted myself more fully from the hamster wheel).
But, second and more important, the times are such that I no longer feel I have to make a choice between ‘rule of law’ proper and the more humanitarian, human rights and development-oriented concerns of my consultancy career and this blog. One of the reassuring things in coming back to grips with the UN rule of law literature was the extent to which this area has explicitly become interwoven with human rights, transitional justice, and development discourses. Or as I put it in commenting on the run-up to the UNGA’s ‘high-level meeting’ on RoL last Fall, what seems striking is 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.”
And for those who persist in the belief that a step toward rule of law must entail a step away from social and economic concerns, I have another announcement that may be reassuring. As some of you know, regular TN guest-blogger Natalie Bugalski and her colleague David Pred have founded an independent research and advocacy organization, Inclusive Development International (IDI). Last Fall, I was honored to be asked to join them as an associate and quickly accepted. IDI is dedicated to supporting poor and marginalized peoples in the face of unaccountable political and economic institutions that promote harmful development activities and fail to properly implement safeguards to protect their rights. I cannot imagine a more timely and relevant rule of law challenge.
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.