United Nations General Assembly (UNGA)
The Rule of Law really came prominently onto the international stage at the United Nations World Summit on Human Rights in Vienna in 1993,
7 when the rule of law was highlighted as a key aspect of human rights protection. Ever since this time, the rule of law has operated as a ‘strategic and policy envelope’ for the United Nations.
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In the beginning the emphasis of the Vienna Declaration was mostly on the ‘rule of law’ as an ‘essential factor in the protection of human rights’.
9 Nevertheless, the UNGA ‘expressed its conviction that such a programme …provide … technical and financial assistance to national projects in reforming penal and correctional establishments, education and training of lawyers, judges and security forces in human rights, and any other sphere of activity relevant to the good functioning of the rule of law’.
10 Already at this early stage, the institutional scope of rule of law activities included security and criminal justice components.
A line of annual resolutions entitled
Strengthening of the Rule of Law followed. These sought to make concrete the lofty ambitions of the Vienna Declaration, though continued to highlight the dearth of funds available to do so.
11 Key also was the ongoing recognition that ‘rule of law assistance’ requests from member States were on the rise.
12
Alongside, these attempts to embed the mission of the Vienna Declaration, a complementary approach to the Rule of law was developing within the UN. First, the United Nations Millennium Declaration incorporated the rule of law as we have already discussed.
Secondly, and more importantly, in August 2000, the Panel on United Nations Peace Operations reported to the UNGA and the United Nations Security Council (UNSC) on its ‘comprehensive review of the whole question of peacekeeping operations in all their aspects’.
13 This report, often referred to under the name of the panel Chairman, Lakhdar Brahimi, contained a range of rule of law proposals. Importantly, one of the key recommendations on peace building was a recommendation for a ‘doctrinal shift in the use of civilian police and related rule of law elements in peace operations that emphasises a team approach to upholding the rule of law and respect for human rights and helping communities coming out of conflict to achieve national reconciliation’.
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Instead of providing a conceptual definition of the rule of law, the Brahimi report elaborated the notion of ‘strengthening the rule of law’ by example, in particular ‘through training and restructuring of local police, and judicial and penal reform’.
15 When taken together, Brahimi’s bricolage of rule of law examples, began to give shape to a more security-centric conception of the rule of law, and significant institutional reform to achieve it.
The Brahimi approach has been hugely influential since its publication. This became clear in 2004 in the SG’s report to the Security Council,
The rule of law and transitional justice in conflict and post-conflict societies.
16 This report enunciated a clear concept of the rule of law for the first time:
The ‘rule of law’ is a concept at the very heart of the Organization’s mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
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This conception has been consistently applied since then. The most recent SG analytical summary of rule of law debates in the General Assembly between 2006 and 2015, described the definition as an ‘important milestone in the area’, pointing out ‘numerous delegations expressed their agreement’ with this definition in more recent years.
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Certainly, the SG definition includes classical state limiting norms normally espoused within the liberal rule of law canon. Nevertheless, it goes on to include private actors and institutions as subjects of the rule of law. This opens the door to the coercion of private actors and institutions as a necessary part of the rule of law, and engages by definition the criminal justice system as a whole.
It is also important to bookmark here that UN’s rule of law definition was first presented within a report, and a forum, which was focused on security concerns. In the context of the UN General Assembly, this security-centric tone echoed sonorously in the 2005 report,
In Larger Freedom.
19 The report saw larger freedom, development and security, as going ‘hand in hand’,
20 and emphasised the ‘mutually reinforcing’ … ‘right to security and to development’.
21 Crucial to these twin aims and the achievement of ‘collective security’ is the shoring up of fragile states. Given the centrality of State capacity to collective security, the rule of law featured heavily in the report. Firstly, the rule of law featured as part of the ‘freedom from want’ agenda, by bolstering secure investment in developing economies.
22 Secondly, it featured as a central tool of ‘peace-building’ and the attainment of ‘freedom from fear’.
23 Finally, a whole section was devoted to the rule of law in relation to ‘freedom to live in dignity’.
But despite this title, the discussion of the rule of law mostly emphasised security and protection. Indeed, the report declared that the Millennium Declaration’s emphasis was on the ‘rule of law as the all-important framework for advancing human security and prosperity’.
24 Strikingly, private actors threatening security, such as armed groups or terrorists were cast as those who ‘make no pretence of being bound by the rule of law’. The phrase sought to describe a juxtaposition between a society following the rule of law and the threat of mass violence.
The Larger Freedom report was saturated with images of state collapse, and the violence that flows from a disregard for the rule of law and law in general. Strengthening the rule of law was seen as an answer not to the overreach of State coercion, but rather to the civic violence that erupts inside fragile States, or as a response to the impunity of those individuals responsible for breaches of international criminal law.
Following on from the 2005 World Summit Outcome document, the ‘rule of law at the national and international levels’ became a permanent annual agenda item on the Sixth Committee of the General Assembly.
25 From this point, SG reports
26 and UN General Assembly resolutions
27 on strengthening the rule of law were an annual feature.
Alongside this annual cycle, the concept of the rule of law has constituted a focus of other themed reports. In 2007, the rule of law as a foundation of security featured heavily in the SG’s ‘
Comprehensive report on strengthening the capacity of the United Nations to manage and sustain peace operations’.
28 This proposed a series of structural changes to the United Nations Department of Peacekeeping Operations (DPKO). The structural proposal was to divide the DPKO into five components, one of which would be the ‘Office of Rule of Law and Security Institutions’ (OROLSI).
29
The 2007 report noted that ‘one of the key aspect of the Brahimi report was its stress on the significance of the rule of law and public order for sustainable peace and security in countries emerging from conflict.
30 But it also brought to that message the benefit of 7 more years of peacekeeping experience:
the lessons of the past decade of peacekeeping have also shown that the establishment and reform of the rule of law in post-conflict contexts is dependent on a basic level of security … establishment of national security strategies and institutions operating under the rule of law are essential for the development of judicial, legal, correctional and police reform. This recognition has led to the initiation of comprehensive inter-agency consideration of the role of the United Nations in security sector reform. This exercise, while still ongoing, has underscored the linkage between the rule of law and security institutions.
Hence in 2008, a ‘vision of security based on the rule of law’ became part of the Secretary General’s report on security sector reform.
31 The report reinforced the clearly emerging UN consensus that the rule of law and security were now intertwined, featuring the ‘rule of law’ as the ‘only’ framework in which sustainable rights regarding security could be achieved, while also placing security itself as the ‘precondition’ to human rights.
32
SG reports and GA resolutions on strengthening the rule of law continued on an annual basis, until the 2012
Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels. This declaration was similarly imbued with a sense of urgency about threats to peace and security. While also emphasising the constraining normative frameworks applying in the development of rule of law capacity, the General Assembly emphasized ‘the importance of the rule of law as one of the key elements of conflict prevention, peacekeeping, conflict resolution, peace building’ stressing ‘justice’ and ‘transitional justice mechanisms’ as key to this end.
33 Similarly, it stressed the ‘importance of supporting national civilian capacity development and institution-building in the aftermath of conflict’.
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The resolution also reinforced the rule of law’s place on the UNDP agenda, by articulating the inescapable connection between rule of law work and a range of development goals, as well as the ‘right to development’:
We are convinced that the rule of law and development are strongly interrelated and mutually reinforcing, that the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms, including the right to development, all of which in turn reinforce the rule of law, and for this reason we are convinced that this interrelationship should be considered in the post-2015 international development agenda.
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Since the High Level Declaration, the UNGA has continued to generate annual resolutions reiterating its commitment to developing the ‘rule of law at the national and international levels’, and
36 SG reports in response to them.
37 All of these reports stress the relationship between peace, security, development and the rule of law. There are too many to mention, but as an example the
2015 Report of the Special Committee on Peacekeeping Operations is again indicative of this trend.
38 The report devoted an entire section to the rule of law emphasising on numerous occasions the ‘critical importance of strengthening the rule of law in countries in conflict and emerging from conflict in order to help stabilize the situation, extend State authority, end impunity, tackle the underlying causes of conflict and build lasting peace’.
39 Similarly, the report ‘underline[d] the important role that peacekeeping operations … can play in helping national authorities … to support the initial strengthening of the host State’s rule-of-law institutions’.
40 The support of peacekeeping missions for rule of law institutions was a key focus, in particular with respect to early interventions aimed at ‘maintaining basic law and order and fighting impunity by strengthening national police, justice and corrections institutions to restore the rule of law’.
41 The range of rule of law actors acknowledged in the report were considerable, and a clear indication of how far rule of law work had become mainstreamed into both organisational reform of the UN itself and the management and structure of peacekeeping missions on the ground.
42
This survey of UN General Assembly and Secretary General documentation on the rule of law has been purposively selective. Its aim is to highlight the growing emphasis on the conceptual relationship between the rule of law, security, law and order, peacekeeping and development. Undoubtedly, the UN’s commitment to human rights, access to justice, and to the normative structures constraining and holding State’s accountable to law is clear, consistent in all its publications and embedded in the SG’s 2004 definition of the rule of law.
Nevertheless, the reference to ‘private’ persons, ‘institutions and entities’ and the idea of ‘supremacy of law’ provides a conceptual starting point for a broader conception of the Rule of Law as an apparatus aimed at maximising security and law and order, minimising violence, and embedding peace. It is unarguable that there is a continuous stream throughout all these documents linking the rule of law to the extension of State authority and the control of crime in fragile states. There is in short, a coercive sting in the tail of the Rule of Law, and no less so in SDG 16.
United Nations Security Council (UNSC): Rule of Law Vacuums
Let us turn briefly to the Security Council itself, where Rule of Law activity is ubiquitous. Probably the quickest and most instructive way to understand all aspects of the SC’s working conception of the rule of law, is to look at its opposite construction: a ‘rule of law vacuum’ a term commonly invoked in the SC and in peacekeeping:
In post-conflict settings, legislative frameworks often show the accumulated signs of neglect and political distortion, contain discriminatory elements and rarely reflect the requirements of international human rights and criminal law standards. Emergency laws and executive decrees are often the order of the day. Where adequate laws are on the books, they may be unknown to the general public and official actors may have neither the capacity nor the tools to implement them. National judicial, police and corrections systems have typically been stripped of the human, financial and material resources necessary for their proper functioning. They also often lack legitimacy, having been transformed by conflict and abuse into instruments of repression. Such situations are invariably marked by an abundance of arms, rampant gender and sexually based violence, the exploitation of children, the persecution of minorities and vulnerable groups, organized crime, smuggling, trafficking in human beings and other criminal activities. In such situations, organized criminal groups are often better resourced than local government and better armed than local law enforcement. Restoring the capacity and legitimacy of national institutions is a long-term undertaking. However, urgent action to restore human security, human rights and the rule of law cannot be deferred. Thus, United Nations peace operations are often called upon to help fill this rule of law vacuum.
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Inside this ‘rule of law vacuum’ we see not only a legal system which violates rule of law norms, but also a system of enforcement which is dysfunctional and illegitimate and unable to control the rampant crime, violence and disorder described as ‘better resourced’ than government actors. The task, then, of rule of law intervention is to restore both the ‘capacity’ and the ‘legitimacy’ of ‘local law enforcement’. While legitimacy of local law enforcement actors features large in this description, equal attention is given to their capacity to enforce order.
The experience of UNSC oversight of transitional societies after large scale conflict and atrocities over the past decade has reinforced the view that there is a key relationship between peace, stability and the elimination of ‘rule of law’ vacuums. Consequently, the nexus between security and the rule of law has been consistently emphasised in SC Secretary General reports and letters,
44 SC reports,
45 and SC Presidential Statements,
46 and also evidenced by the establishment of a Rule of Law Assistance Unit within the Security Council.
47
In the recent 2014 Statement, the Security Council President reaffirmed the ‘importance of the rule of law as one of the key elements of conflict prevention, peacekeeping, conflict resolution and peace building’.
48 The Statement went on to note ‘the important role that the police components of peacekeeping operations can play in strengthening the rule of law in conflict and post-conflict situations, by, inter alia, providing operational support to national police and other law enforcement agencies and supporting the reform, restructuring and rebuilding of such agencies, including through technical assistance, co-location, training and mentoring programmes’.
49 There is little question therefore, that the language of the first thematic rule of law report has since become ubiquitous in official SC documentation.
In sum, from a closer analysis of their own sources, there is considerable evidence to show that UNSC peace building strategies are interleaved with a securitised conception of the rule of law. What the UNSC terms, ‘citizen security’ or a ‘victim centred approach to peacekeeping’, is at the heart of its pursuit of social ordering structures inside unstable societies. The practical operational realities of shoring up such structures has been repeatedly emphasised by the UNSC which has ‘faced the difficulties of conducting peace operations where there are no functioning criminal justice mechanisms at all’
50 and that ‘lawlessness can seriously undermine the efforts of entire peace operations’. As a consequence, the strategies for filling ‘rule of law vacuums’ in the first instance particularly include the role, capacities and obligations of military and civilian police components’.
51
All of these peace keeping strategies, and resources to shore up security and order, are incorporated into the UNSC’s framing of the ‘the rule of law’. But there is insufficient conceptual attention to the distinction between the rule of law as a tool of security, stability and peace, and the normative ideals of the UNSG’s rule of law concept as a state limiting device. The background coercive conditions which are necessary for the preservation of social order, are described as part of rule of law practice and rhetoric over and over again. There isn’t a clear, consistent and concerted effort to distinguish security capacity building as an institutional pre-condition to the realisation of traditional rule of law safeguards. While there is consistent reference to human rights safeguards, justice and other values safeguarded by the rule of law, there is less consistent and explicit acknowledgement of the deep epistemological conflict between the measures aimed at bolstering fragile states and securing citizens, and those aimed at ensuring that the state is limited by rule of law safeguards.