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Rule of law and post-2015: a menu approach

Nicholas Menzies's picture

On Friday last week I attended the final session of the United Nations Open Working Group – the body tasked with putting together global development priorities to replace the Millennium Development Goals. The session covered rule of law, along with peace and governance.

With a few exceptions, most member states were supportive of the inclusion of rule of law in the post-2015 development agenda. This aligns with global public opinion reflected in the UN’s World We Want Survey – where issues such as honest and responsive government and protection from crime and violence rated above such development staples as roads and household energy supply. A side event to the Open Working Group on Friday highlighted all the ways in which rule of law is measurable.

Despite the general support, quite a few Open Working Group members raised the issue of how to include rule of law whilst also "respecting national sovereignty" and "promoting national ownership," as well as taking into account that justice systems look different in different places.

Over the past 12 months, I’ve been involved in a range of technical meetings about the inclusion of justice and rule of law in the post-2015 framework. These get-togethers have grappled with the same general tension raised at the political level in New York – how to balance the global importance of rule of law with the local specificities of justice problems and systems.

One way member states could consider addressing this tension is to adopt a global justice menu of targets and indicators underneath a universal goal on governance and justice. Each country could choose from the menu in accordance with their own conditions. Here’s what such a menu could look like:


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Whilst there are a number of ways the menu could be set up, in one example, countries could be required to select at least two targets from a list of, say, five – maybe one country wants to focus on justice services and property rights; the other on legal identity and citizen security. Countries could also be allowed to choose the level of ambition in each target to match their starting conditions. It might be more reasonable to shoot for a 25% improvement in the efficiency of justice services in one country and only a 10% in another. This is not to say that justice services aren’t important in the latter, but the conditions might mean only a small – but still meaningful - improvement is possible.

Under each target a basket of indicators could be suggested and countries could be required to select across a range of data sources – administrative data, expert opinion and population and user surveys – approximating the breadth of the concept of justice. They could even suggest their own.

One benefit of this approach is that it would necessitate dialogue between citizens, users of the justice systems and their governments: about the most pressing justice problems; how far they want to get during the post-2015 period; and how they’ll know they’ve got there. This may serve to build national accountability relationships – not just reporting ones between member states and New York. Establishing principles to guide the process of building and sustaining meaningful dialogue would be critical and here the international community could play an important role in collaboration with national and local actors. These dialogues would also allow focus on measures for which data is collectable – perhaps reducing the number of empty cells that have dominated MDG reports since 2000.

There are some risks. Countries could low-ball by picking underwhelming targets or ‘easy’ indicators that can be met with minimal effort. There are also some questions about how a variable justice menu might cohere if the rest of the post-2015 framework contains universal targets and/or indicators – though it could well be that other sectors also decide to adopt their own "menus".

The Open Working Group is now negotiating the world’s development priorities up until 2030. Member states and the world’s population agree that rule of law is important to development and needs to be included. Adopting a global menu of justice indicators and targets is a technically feasible way of balancing global priorities with local needs.

Comments

Submitted by Graham Long on

Universality, human rights and the rule of law 'menu'

Thanks for this post - it is really interesting to see current thinking. I wonder, though, if you understate the problems with the menu approach, from the standpoint of the widely supported "Human Rights Based Approach" to new goals that should "leave noone behind". The rule of law seems to be directly connected to human rights - both to specific civil and political rights and to protection of rights more generally. Sorry for the length of this, I am very interested to see what you think.

First, the menu/ % improvement approach does not seem to respect individual human rights, in countries where human rights impacted/protected by the rule of law are not currently upheld.

"% improvement"
Setting the target below "protecting all relevant human rights", to some % improvement seems problematic in itself. If every human being has rights equally, then committing to a % increase short of that required to fulfil all human rights-based responsibilities, must leave some people's rights unfulfilled. Human rights are a universal standard of moral equality, and pitching for partial, variable achievement looks a poor candidate to protect them. Asking only for a % decrease looks particularly odd where what is at issue is a regime actively violating rights. Setting the targets only at a reduction, rather than the ending, of human rights violations means, in effect, not even trying to end some human rights violations. Plus, the costs incurred, say in ceasing to deny some people access to justice don't look like something a "human rights based agreement" need take into account, in deciding who should do what.

"flexibility on targets"
It is not clear why we should allow countries to pick their targets, if every human being across the world has equal innate moral worth regardless of where they are born (which is the basic idea of human rights). Any state-level flexibility which leads to the underfulfilment of rights looks problematic, surely? The human rights framework isn't a menu of choices, where a country gets to choose either protecting freedom from arbitrary arrest and detention or protecting freedom from cruel or degrading punishment, or trade the two off on the basis of the difficulty it will have achieving them. Won't treating targets in respect of the rule of law in this way, do violence to this basic idea?

If we think human rights are important, then surely the countries performing worst must receive the most demanding targets - or put another way, the target should be the same, but it is further away from that country's current position, and so they have more to do to get there. More generally, asking what effort we can expect seems to get things in reverse. Shouldn't the question be, who needs to do what, to achieve human rights fulfilment for all? and this leads us to ask, what are the responsibilities of other countries - how can they aid the realisation of human rights elsewhere?

"national accountability"
There might be more reason to leave the details to national-level accountability where this would be grounded in political equality. But we might reasonably expect that countries in which the rule of law is weak, to be those countries in which effective representative government is absent, and political and civil freedoms to be under-defended (this is all interdependent in both theory and practice, I take it). In particular, human rights - and equal justice, in the sense we are discussing it here - are especially valuable for the politically marginalised and excluded. It is precisely these people who we would expect not to have a say in the national level of priorities. So, I worry that without an expanded governance and human rights agenda, this will not promote accountability; rather, a lack of accountability will operate at the expense of the most politically marginalised.

Lastly, "leave no-one behind" is a prominent idea in post2015 discussions, so let me put my worries another way. A regime of % improvement and a menu of options, will, by definition, leave some people behind: more exactly, leave them in a situation where they are not fully guaranteed a life of basic human dignity (especially in its civil and political aspects), on grounds of geographical luck. How does the idea of "zero based goals", meant to ensure basic rights and opportunities for all, square with "flexible, % based improvement targets?"

@grahamlong9

Submitted by Mark J. on

I like what I read.
But! How does this play into later plans for the world?

Thank you to the World Bank for engaging in this conversation. More specifically, I would like to start by thanking Nicholas Menzies for sharing this information. As a committed rule of law practitioner, I am guardedly optimistic that the post-2015 development agenda may include rule of law in some meaningful sense. At the same time, I think it is worth noting that, while often mentioned as critical in public fora, actual donor dollars targeted for rule of law remain very modest relative to other topics within the democracy and governance arena. For example, significant investments are made in elections as a matter of course. When one seeks funding to implement a new constitution, accountability institution, etc., the funds are not as easy to come by. Perhaps, the post-2015 agenda can be an impetus for change and increased focus on rule of law. The issues of sovereignty and national interest are common considerations in programming, and technical assistance providers involved in the actual implementation of rule of law programs have many insights to share, including examples of successfully navigating these considerations. I believe implementers would welcome the opportunity to help inform the high level negotiators about these details. Measurement is important, but strategies, modalities, etc. are also important. I hope that future "side events" are contemplated that can expand the dialogue, and bolster the case, for rule of law in the post-2015 agenda.

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