The rule of law needs reaffirmation – Julinda Beqira and Lawrence Mcnamara

25 September 2014 by Guest Contributor

Over the next year the United Nations will discuss and adopt an agenda for global development for 2015 – 2030. It will set out the aims countries should strive to achieve in order to secure economic, social and environmental development.

One of the most contentious points of debate – and one of the most important – will be what role the rule of law will occupy in the post-2015 development agenda. Its significance cannot be overstated as it reaches into the very heart of how our future will be shaped.

This year’s General Assembly meetings commence on 24 September and run until 1 October. They will be crucial in shaping the post-2015 agenda. Of the paths the GA may take, there are two main options:

• in one path, the rule of law will be stated as a goal that States should strive to achieve.
• in the other, it will not be.

What path should the UN take? And what path will it take?

The paths taken so far

Each of these two options has been, and will continue to be, influenced by UN initiatives, regional consultations, input from business and the private sector, input from NGOs and, of course, input from countries both individually and in blocs. Two streams of influence have been especially important from the perspective of the inclusion of the rule of law in the Post-2015 Agenda.

The first was the High-Level Panel of Eminent Persons, co-chaired by UK Prime Minister David Cameron. This was a UN Secretary General multi-stakeholder initiative consisting of representatives from civil society, the private sector, academia and local governments, alongside State representatives. Its 2013 report strongly recommended the inclusion of the rule of law in post-2015 development agenda. The PM has described the rule of law as part of ‘the golden thread’ of growth and development.

The second was the Open Working Group (OWG) of the General Assembly which is a State-led initiative that emerged from the UN Rio+20 Conference on Sustainable Development. On 19 July this year, the OWG delivered a final compilation of 17 proposed goals and 169 targets on sustainable development for the post-2015 development agenda – the so called Sustainable Development Goals (SDGs). The idea is that the goals can be realised by achieving the specific, measurable targets, for which indicators will be set in due course. The SDGs build on the foundations of the MDGs, complete them and respond to new challenges in global priorities.

The rule of law – falling out of favour

It was at these most recent meetings of the OWG that the rule of law fell out of favour.   The OWG began by considering what was called the “zero draft version” of the goals in which the rule of law was specifically among the sustainable development goals that were proposed for the post-2015 development agenda. However, in the last month ‘access to justice’ took the place of ‘the rule of law”’ in the version of Goal 16 that will be put to the General Assembly. Goal 16 now reads, “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.”

Goal 16 proved to be one of the most divisive issues among OWG delegations at different levels. At least 58 countries, including the UK, and the EU speaking for its Member States, wanted the rule of law in the text of Goal 16. Others, however, did not. The debate concentrated mainly on the exact scope of the mandate of the OWG as framed in the outcome document of the UN Rio+20 Conference and on the existence or not of a consensus over an intergovernmentally-agreed definition of ‘the rule of law’. 

Access to justice: moving forward but stepping back 

In the face of such division, the position that will be put to the General Assembly this month represents a significant compromise. The inclusion of access to justice in a Sustainable Development Goal is in some respects a great achievement. Without doubt, it places a foot in the door for one element of the rule of law. It is also true that the rule of law itself still features in the Introduction to the SDGs as a general and crosscutting guiding principle, sitting alongside other purposes and principles of the UN Charter. The Introduction to the proposed SDGs additionally recognises the important link between the rule of law and sustainable, inclusive and equitable development. The promotion of the rule of law is also referred to in the same breath as access to justice in Target 16.3.

However, the proposed Goal 16 represents a last moment retreat from a broader commitment that seemed to attract wide consensus among the UN Member States and civil society. Besides access to justice, the rule of law includes other elements – such as the principle of legality, transparent and accountable law, fair trials, legal certainty, respect for human rights, non-discrimination, independence of the judiciary and equality before the law. These are of profound importance to sustainable development, inclusive economic growth, eradication of poverty and the full realization of human rights.

The path ahead: what is the fate of the rule of law?

Following a high-level “stocktaking” event last week, and with the proposed SDGs to be submitted to the GA “for consideration” next week, and then looking ahead to the high level summit of September 2015 when the Assembly will finalise the post-2015 agenda, the fate of the rule of law is not yet sealed. As a core and indispensable element of empowerment, stability and development it is vital that the rule of law occupies a firm and clear place in the development agenda for the fifteen years that follow. It is crucial that it retains – at a minimum – its present profile, and it is to be hoped that in the coming year the rule of law will regain the initial traction of previous negotiations and be established as a distinct development goal.

Without the rule of law in the goals, some of the errors and omissions of the Millennium Development Goals will persist, and it will be much more difficult to achieve respect for the human dignity of the poor and marginalised.

Dr Lawrence McNamara is Deputy Director & Senior Research Fellow and Julinda Beqiraj is Research Fellow at the Bingham Centre for the Rule of Law