United Nations Rule of Law Activities Threaten National Sovereignty
Wednesday, December 2, 2009
The United Nations is engaged in an on-going process to strengthen its attention to the rule of law at the national and international levels. In doing so, the UN has adopted an invasive strategy for actively participating, along with its non-governmental organization partners, in domestic legal and policy reform debates. The UN’s enhanced rule of law program poses a serious threat to national sovereignty and organic democratic evolution.
As justification for its rule of law activities, the UN cites the Charter of the United Nations, together with four pillars of the modern international legal system – international human rights law, international humanitarian law, international criminal law and international refugee law – and the wealth of UN human rights and crime prevention and criminal justice standards.
As set forth in the Charter of the United Nations, the three pillars of the UN’s mission are to maintain international peace and security; to achieve economic and social progress, and development; and to encourage respect for human rights and fundamental freedoms. The UN believes that its promotion of the rule of law is fundamental to this mission and that it has a mandate to be involved in rule of law activities at the national level in all circumstances, including in crisis, post-crisis, conflict-prevention, conflict, post-conflict, and development contexts.
According to the UN, the rule of law is 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 the 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. Although this is a sound articulation of the rule of law, the UN’s role in promoting the rule of law at the national level is a subject of global governance that has not been adequately debated in the public square.
According to the April 2008 Guidance Note of the Secretary-General: UN Approach to Rule of Law Assistance, eight principles guide the UN’s rule of law assistance activities. Unfortunately, each of the eight principles poses a threat to national sovereignty.
First, UN rule of law assistance must “be based on international norms and standards.” Yet, the countless UN treaties, declarations, guidelines, and bodies of principles that the UN claims represent universally applicable standards have not been adequately developed and are subject to arbitrary interpretation and enforcement.
Second, UN rule of law assistance must “take account of the political context.” Unfortunately, the UN believes that its in-country field representatives are responsible for engaging in the very subjective role of “fostering political space for reform and insulating the rule of law from inappropriate political influence or abuse.”
Third, rule of law assistance must “be based on the unique country context.” The UN believes that it must conduct “a thorough analysis of national needs and capacities, and the mobilization of national expertise to the greatest extent possible” and must consider “the culture, traditions and institutions that underlie that system, including the role of gender in society, the position of minority groups, and the situation of children.” Again, this is a very subjective undertaking that is subject to UN institutional biases and NGO agendas.
Fourth, rule of law assistance must “advance human rights and gender justice.” In this context, the UN believes that it “must not overlook the entitlements that have been established under international law for women, children, minorities, refugees and displaced persons, and other groups that may be subjected to marginalization and discrimination in the country.” The entitlements to which the UN refers are ones that, although listed in human rights instruments, have not been adequately developed in international law and are at various stages of adoption at the national level.
Fifth, rule of law assistance must “ensure national ownership.” The UN explains that rule of law development requires the full and meaningful participation and support of “national stakeholders, inter alia, government officials, justice and other rule of law officials, national legal professionals, traditional leaders, women, children, minorities, refugees and displaced persons, other marginalized groups and civil society” and that “meaningful ownership requires the legal empowerment of all segments of society.” Yet, what right does the UN have to dictate to nations, especially democratic ones, the degree to which certain parties must be granted special stakeholder privileges beyond those to which they are entitled as ordinary citizens?
Sixth, rule of law assistance must “support national reform constituencies.” According to the UN, it must identify, support, and empower national reform constituencies; facilitate the processes through which various national stakeholders debate and outline the elements of their country’s plan to strengthen the rule of law; secure sustainable justice; and assist national stakeholders to develop their own vision, agenda, approaches to reform and programs. In essence, this principle contemplates that the UN will organize civil society at the national level and establish the reform agenda and terms of debate.
Seventh, rule of law assistance “must ensure a coherent and comprehensive approach.” Basically, the UN believes it must take responsibility for all rule of law activities at the national level, including: “1) conducting joint and thorough assessments with the full and meaningful participation of national stakeholders to determine rule of law needs and challenges; 2) supporting the development of a comprehensive rule of law strategy based on the results of the assessment; 3) developing a joint UN rule of law program guided by the strategy; and 4) assigning accountabilities and implementation responsibilities.”
Lastly, rule of law assistance must “engage in effective coordination and partnerships.” This means that the UN will select its favorite international NGOs as compliant partners in conducting rule of law activities at the national level.
Over recent years, the UN has taken steps to address the need for greater coordination and coherence of its rule of law efforts. Ultimately, under the authority and direction of the Secretary-General, the responsibility for the overall coordination of the UN’s rule of law work rests with the UN Rule of Law Coordination and Resource Group (the “Group”) chaired by the Deputy Secretary-General, and supported by the Rule of Law Unit. The role of the Group is to ensure coherence and minimize fragmentation across all thematic areas, including justice, security, prison and penal reform, legal reform, constitution-making and transitional justice.
Published in February 2009, the Group’s Joint Strategic Plan for 2009–2011 (the “Plan”) lays out an agenda for key United Nations rule of law efforts. It outlines the strategic principal outcomes, outputs and joint activities, to which the members of the Group will contribute.
The Plan has been adopted by the nine members of the Group: the Department of Political Affairs, the Department of Peacekeeping Operations, the Office of the High Commissioner for Human Rights, the Office of Legal Affairs, the United Nations Development Program, the United Nations Children’s Fund, the United Nations High Commissioner for Refugees, the United Nations Development Fund for Women, and the United Nations Office on Drugs and Crime.
The Plan aims to improve the quality of the rule of law assistance provided to Member States “through cost-effective prioritization of rule of law activities to be undertaken by the Group and its members over the next three years.” The Plan calls for the Group to improve the quality of its assistance “by conducting joint, thorough assessments with the meaningful participation of national stakeholders to determine rule of law needs; supporting the development of a comprehensive rule of law strategy; formulating joint UN rule of law programs; and assigning implementation responsibilities and ensuring accountability.”
The Plan is to be implemented jointly by the members of the Group, while respecting mandated responsibilities entrusted to individual members of the Group. The Group has prioritized partners to engage with in the development and implementation of the Plan, including the wider UN system, Member States, civil society groups, academics and training institutes in donor and recipient countries, and international and regional assistance providers.
In order to achieve its global governance ambitions, it is clear that the UN has recognized and responded to the need to enhance its rule of law program for monitoring, influencing, and regulating law and policy issues at the national level.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.
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