Stewart M. Patrick

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How to Advance the Rule of Law (Hint: Outside the UN)

by Stewart M. Patrick
October 2, 2012

South Africa's President Jacob Zuma speaks during the high-level meeting of the General Assembly on the Rule of Law at the United Nations headquarters in New York September 24, 2012 (Shannon Stapleton/Courtesy Reuters). South Africa's President Jacob Zuma speaks during the high-level meeting of the General Assembly on the Rule of Law at the United Nations headquarters in New York September 24, 2012 (Shannon Stapleton/Courtesy Reuters).

At the United Nations, support for the rule of law has the aura of mom’s apple pie: Everybody loves it. Unfortunately, consensus ends there. UN member states can’t agree on how to define it, much less how to advance it globally. It’s unsurprising, then, that last week’s “High-Level UN Meeting on the Rule of Law” (perhaps you missed it?) was a bust. The meeting’s final declaration was a festival of empty blather, even by UN standards. And that is a wasted opportunity. For as my friend and colleague Mark Lagon points out in a just released policy innovation memorandum from the Council on Foreign Relations, improving the rule of law worldwide may be the critical step in improving prospects for human dignity and prosperity in the twenty-first century.  The lesson of the last week is that this effort can’t be left to the United Nations.

Over the past two decades, experts and practitioners spanning the fields of security, development, human rights, and governance have reached the common conclusion: the rule of law is the foundation for the emergence and consolidation of secure, prosperous, just, and democratic societies.

The rule of law is a fundamental principle of governance that holds that “all persons, institutions and entities, whether public or private, including the state itself­­­, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated.” Where the rule of law reigns, a separation of political powers, including an independent judiciary, places a check on tyranny. Citizens are at liberty to participate freely in the political and market activities, and to seek redress against violations of their rights under codes of civil, economic, and public laws. In the words of Susan Rose-Ackerman, professor of jurisprudence at Yale Law School, the rule of law is designed to eliminate both private lawlessness and public impunity.

Growing attention to the rule of law reflects the confluence of several developments. During the late 1980s and early 1990s, analysts saw it as an essential element in consolidating fragile democratic transitions in Latin America and the former Soviet bloc. Development experts, meanwhile, came to regard it as the missing ingredient to good governance in some of the world’s poorest countries. Human rights defenders saw its absence as a major impediment to the pursuit of social and political justice and the end to arbitrary rule. Finally, would-be nation-builders from Haiti to Afghanistan came to see integrated rule of law programs as a core dimension of any effort to promote stable peace and economic recovery in the aftermath of devastating conflict.

Despite this growing evidence of the centrality of the rule of law,  multilateral efforts to advance it continue to disappoint. This is especially true within the fragmented United Nations system, where disconnected efforts sprawl across dozens of separate departments, programs and agencies. UN member states themselves, meanwhile, continue to bicker over how to define the rule of law. The recent high-level event was a case in point. While the United States and other Western nations have focused on the practical question of how the international community can strengthen the legitimate foundations of domestic governance, some developing countries (as well as China) have sought to reframe the discussion to address the “international” rule of law—a distracting gambit designed, among other things, to put the United States on the defensive as an (alleged) global rule-breaker. Given such divisions, it’s perhaps no surprise that the high-level event concluded with a less than earth-shattering recommendation: that the secretary-general simply write another report.

Seeking a creative alternative to the sclerotic United Nations, Mark Lagon of Georgetown University and CFR proposes something entirely different: the creation of a Global Trust for Rule of Law. Loosely modeled on the Global Fund for AIDS, Tuberculosis and Malaria, the Global Trust would be an independent funding body with a mandate to provide financial resources and technical assistance to promising rule of law initiatives in developing and transitional countries. Its autonomous governing board would include a handful of wealthy donor nations and developing country democracies, the main international financial institutions, and representatives drawn from the private sector, civil society, major philanthropies, and the academy.  Like the Global Fund—as well as the United Nations Democracy Fund (UNDEF)—the Global Trust would make its grants on a competitive basis and condition the release of tranches of aid on achievement of performance benchmarks. To sidestep the dangers of government capture and corruption, the lion’s share of grants would go to non-governmental entities and watchdog groups committed to accountable governance.

In an age of looming budgetary austerity, is it realistic to imagine creating a brand new funding mechanism for foreign assistance? In a word, yes. As Lagon points out, the amounts of seed money required would be tiny, in relative budget terms—he suggests as low as $140 million a year, with the U.S. contribution (for reasons of perception) limited to no more than ten percent of the total. At the same time, the returns could be great. As it grows in size on the basis of performance, the Trust “could begin to close  the gap between rights that exist on paper and those that can actually be enjoyed.” Such a practical contribution to human dignity is something all Americans, regardless of political affiliation, should be prepared to support.

At the United Nations, support for the rule of law has the aura of mom’s apple pie: Everybody loves it. Unfortunately, consensus ends there. UN member states can’t agree on how to define it, much less how to advance it globally. It’s unsurprising, then, that last week’s “High-Level UN Event on the Rule of Law” (perhaps you missed it?) was a bust. The meeting’s final declaration was a festival of empty blather, even by UN standards. And that is a wasted opportunity. For as my friend and colleague Mark Lagon points out in a just released policy innovation memorandum from the Council on Foreign Relations, improving the rule of law worldwide may be the critical step in improving prospects for human dignity and prosperity in the twenty-first century.  The lesson of the last week is that this effort can’t be left to the United Nations.

Over the past two decades, experts and practitioners spanning the fields of security, development, human rights, and governance have reached the common conclusion: the rule of law is the foundation for the emergence and consolidation of secure, prosperous, just, and democratic societies.

The rule of law is a fundamental principle of governance that holds that “all persons, institutions and entities, whether public or private, including the state itself­­­, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated.” Where the rule of law reigns, a separation of political powers, including an independent judiciary, places a check on tyranny. Citizens are at liberty to participate freely in the political and market activities, and to seek redress against violations of their rights under codes of civil, economic, and public laws. In the words of Susan Rose-Ackerman, professor of jurisprudence at Yale Law School, the rule of law is designed to eliminate both private lawlessness and public impunity.

Growing attention to the rule of law reflects the confluence of several developments. During the late 1980s and early 1990s, analysts saw it as an essential element in consolidating fragile democratic transitions in Latin America and the former Soviet bloc. Development experts, meanwhile, came to regard it as the missing ingredient to good governance in some of the world’s poorest countries. Human rights defenders saw its absence as a major impediment to the pursuit of social and political justice and the end to arbitrary rule. Finally, would-be nation-builders from Haiti to Afghanistan came to see integrated rule of law programs as a core dimension of any effort to promote stable peace and economic recovery in the aftermath of devastating conflict.

Despite this growing evidence of the centrality of the rule of law,  multilateral efforts to advance it continue to disappoint. This is especially true within the fragmented United Nations system, where disconnected efforts sprawl across dozens of separate departments, programs and agencies. UN member states themselves, meanwhile, continue to bicker over how to define the rule of law. The recent high-level event was a case in point. While the United States and other Western nations have focused on the practical question of how the international community can strengthen the legitimate foundations of domestic governance, some developing countries (as well as China) have sought to reframe the discussion to address the “international” rule of law—a distracting gambit designed, among other things, to put the United States on the defensive as an (alleged) global rule-breaker. Given such divisions, it’s perhaps no surprise that the high-level event concluded with a less than earth-shattering recommendation: that the secretary-general simply write another report.

Seeking a creative alternative to the sclerotic United Nations, Mark Lagon of Georgetown University and CFR proposes something entirely different: the creation of a Global Trust for Rule of Law. Loosely modeled on the Global Fund for AIDS, Tuberculosis and Malaria, the Global Trust would be an independent funding body with a mandate to provide financial resources and technical assistance to promising rule of law initiatives in developing and transitional countries. Its autonomous governing board would include a handful of wealthy donor nations and developing country democracies, the main international financial institutions, and representatives drawn from the private sector, civil society, major philanthropies, and the academy.  Like the Global Fund—as well as the United Nations Democracy Fund (UNDEF)—the Global Trust would make its grants on a competitive basis and condition the release of tranches of aid on achievement of performance benchmarks. To sidestep the dangers of government capture and corruption, the lion’s share of grants would go to nongovernmental entities and watchdog groups committed to accountable governance.

In an age of looming budgetary austerity, is it realistic to imagine creating a brand new funding mechanism for foreign assistance? In a word, yes. As Lagon points out, the amounts of seed money required would be tiny, in relative budget terms—he suggests as low as $140 million a year, with the U.S. contribution (for reasons of perception) limited to no more than ten percent of the total. At the same time, the returns could be great. As it grows in size on the basis of performance, the Trust “could begin to close  the gap between rights that exist on paper and those that can actually be enjoyed.” Such a practical contribution to human dignity is something all Americans, regardless of political affiliation, should be prepared to support.

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