Shaky foundations: An assessment of the UN’s Rule of Law support agenda
Camino Kavanagh and Bruce Jones
1). As we began the process of drafting this review, citizens across the Middle East and North Africa took to the streets to demand an end to the abusive practices of the security services, more representative and responsive government institutions, the protection of their rights, greater access to economic opportunity, participation in decision-making, and access to justice. They began demanding, in short, the rule of law.
2). The political upheavals in the Arab region are of a different nature to those that have traditionally been the focus of UN peace operations and transition engagements. The end of the Cold War, followed by a broad wave of democratic transitions, contributed to new opportunities for engagement in conflict management and peace support. At the same time, however, long-simmering tensions within many states erupted into mass violence. National conflicts spilled over colonial-era borders to engulf broad regions in Africa, Central America, Southeast Asia and the Balkans. Attention to these internal conflicts, which had hitherto remained on the periphery, became a central focus of the UN in the early 1990s.
3). Evidence has mounted that despite major challenges, international peacekeeping has had a decisive effect on helping states bring an end to many of these civil wars.1 However, the problem of relapse has remained. In the last decade, 90 percent of new wars were in countries that had experienced war within the previous decade.2 At the same time, though, new sources of instability appear to be on the rise: the integration of global markets and increasing sophistication of communications technologies have facilitated the expansion of transnational organized crime and trafficking, while international terrorism has transformed and amplified instability in a number of preexisting conflicts or proto-conflicts in north and eastern Africa, the greater Middle East, and south and southeast Asia.
4). As the international community has grappled with civil war relapse, the spread of organized crime, and extremism, it has increasingly focused on the rule of law as the overarching objective for the response. This conceptual shift is reflected in the diversity of actors involved: within the UN alone, peacekeepers, peacebuilders, political and development experts, security experts, organized crime experts, and counterterrorism committees of the Security Council operate within a framework of establishing or strengthening the rule of law at the national and/or global level and implement policies or programs accordingly. This is an important conceptual shift, and one that has generated important new forms of engagement and opportunities for the UN. It has, however, also generated conceptual confusion and significant bureaucratic entanglement – and both have begun to erode confidence in the ability of the UN to fill this critical (and growing) gap in the international system.
5). This report explores these issues from several perspectives. It begins with a discussion on the historical and conceptual understanding of the concept of the rule of law, highlighting two distinct frameworks that exist within the UN – a ‘thick’ version that links to political institutions and processes, and a more technical, apolitical approach – and the confusions between them . The report suggests a set of core functions that can help identify which approach to take in different contexts, if underpinned by sound analysis and understanding of context. It then traces the substantive evolution within the UN of the concept of the rule of law, examining the congruence between policy and institutional arrangements at headquarters, and operational realities on the ground.
6). In doing so it draws on a literature review; a detailed analysis of UN policy and the institutional arrangements that have been established to support rule-of-law initiatives and activities; exhaustive interviews with HQ staff in New York, Vienna, and Geneva, and key UN field staff engaged in rule-of-law–related work; six more targeted studies, organized to highlight the differences between UN RoL support provided in i) low income, low institutional post-conflict settings (Haiti, and the Democratic Republic of the Congo); ii) low income, low institutional, fragile transition settings where the UN has or has recently had a political mandate (Burundi and Nepal); and iii) fragile, transition settings coping with high levels of violence and where the UN does not have a political mandate (Guatemala, Jamaica). The report also draws on a series of consultative meetings that CIC held in 2011 with senior fellows and experts. It was undertaken in parallel with CIC support to the World Bank’s 2011 WDR, the findings of which it also draws upon.
7). The essential conclusions of the Review are as follows:
• The UN’s rule-of-law support agenda rests on shaky foundations: unstable political settlements; a weak empirical base: and a decision-making architecture and culture that has proved unable to clarify confusion, make decisions, or present member states with a roadmap toward more streamlined arrangements.
• In post-conflict settings, in cases where institutions are weak and resources are low, the UN should refrain from using the ‘thick’ version of the rule of law as an overarching planning framework for initial engagement. Rather, the focus should be on building confidence in legitimate political settlements; and on using the leverage that exists during a major UN presence to embed initial mechanisms that can, over time, foster the emergence and the deepening of rule-of-law functions.
• In follow-on peacebuilding missions or standalone political missions, especially in low-income settings, the central challenge of UN efforts aimed at supporting the emergence of the rule of law is often one of leverage; the challenge is forging links to more influential actors, such as regional powers and the IFIs.
• By contrast to most post-conflict settings, the ‘thick’
version of the rule of law can serve as a strong framework for engagement in post-authoritarian transitions, as well as in low- and middle-income countries coping with high levels of violence and fragility. It is particularly salient for the transitions currently under way in the Middle East and North Africa.
• As with many other areas of the UN’s conflict-related work, limited analysis and weak and competing monitoring and assessment frameworks weaken each aspect of UN engagement in the rule of law field.
8). Finally, the report sets out some short- and medium-term steps to move rule-of-law efforts forward.
The authors are fully cognizant of the fact that there is limited appetite within the UN or among member states for deeper changes to the current UN architecture. We nevertheless stress the importance of:
• Clarifying the underlying empirical and policy basis for the UN’s work.
• Ensuring that rule-of-law support responds more effectively to the internal and external challenges that can stymie the emergence of the rule of law in different settings.
• Guaranteeing better collaboration or joint programming, especially on the ground, in the spirit of the Report of the Independent Panel on Civilian Capacity.
• Ensuring greater discipline in the Secretary-General’s policy mechanisms.
Last, it calls on the UN to use its normative rule-of-law platforms as the basis for a sustained response to requests for support that emerge around the pending rule of law challenges in countries across the Middle East and North Africa.