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December 2012, No. 4 Vol. XLIX, Delivering Justice?

The Declaration adopted on 24 September 2012 by the United Nations General Assembly at the High-level Meeting on the Rule of Law at the National and International Levels reaffirmed that "human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations".¹ Indeed, government responsiveness to the interests and needs of the greatest number of citizens is strictly associated with the capacity of democratic institutions and processes to bolster the dimensions of rights, equality and accountability.

If considered not solely an instrument of the government but as a rule to which the entire society, including the government, is bound, the rule of law is fundamental in advancing democracy. Strengthening the rule of law has to be approached not only by focusing on the application of norms and procedures. One must also emphasize its fundamental role in protecting rights and advancing inclusiveness, in this way framing the protection of rights within the broader discourse on human development.

A common feature of both democracy and the rule of law is that a purely institutional approach does not say anything about actual outcomes of processes and procedures, even if the latter are formally correct. When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn between "rule by law", whereby law is an instrument of government and government is considered above the law, and "rule of law", which implies that everyone in society is bound by the law, including the government. Essentially, constitutional limits on power, a key feature of democracy, require adherence to the rule of law.

Another key dimension of the rule of law-democracy nexus is the recognition that building democracy and the rule of law may be convergent and mutually reinforcing processes whenever the rule of law is defined in broad, ends-based terms rather than in narrow, formal and exclusively procedural terms. The nexus is strong whenever the rule of law is conceived in its relationship with substantive outcomes, like justice and democratic governance. This distinction is often characterized by resorting to the opposition between "thin" and "thick" conceptions of the rule of law.

Formal and substantive notions are certainly related and some scholars argue against a thin/thick dichotomy, suggesting that, in situations of social and political change, both formal and substantive features of the rule of law may be "thinner" or "thicker". However, in general terms, a focus on "thin" definitions places emphasis on the procedures through which rules are formulated and applied, whereas "thick" definitions aim to protect rights and frame it within broader human development discourse.

A "thick" definition delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society. The rule of law, defended by an independent judiciary, plays a crucial function by ensuring that civil and political rights and civil liberties are safe and that the equality and dignity of all citizens are not at risk. It also helps protect the effective performance of the various agencies of electoral, societal and horizontal accountability from potential obstructions and intimidation by powerful State actors.

This "thick" definition of the rule of law differs from "thinner" definitions that place emphasis on the procedures through which rules are formulated and applied. Examples of the tenets within a "thick" definition were provided by the then United Nations Secretary-General, Kofi Annan, in his 2004 reports on the rule of law. Mr. Annan stressed that, for the United Nations, 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.²

Referring to this definition in his 2009 Guidance Note on Democracy, Secretary-General Ban Ki-moon added that the United Nations provides expertise and support to "the development of legislation and the strengthening of, in particular, legislative, executive and judicial institutions under such principles to ensure that they have the capacity, resources and necessary independence to play their respective roles".³

Over the years, the United Nations has fostered the rule of law at the international level through the consolidation and development of an international framework of norms and standards, the establishment of international and hybrid courts and tribunals and non-judicial mechanisms. It has refined its framework for engagement in the rule of law sector at the national level through the provision of assistance in constitution making; the national legal framework; institutions of justice, governance, security and human rights; transitional justice; and the strengthening of civil society.⁴ The 2008 Guidance Note of the Secretary-General on the United Nations Approach to Rule of Law Assistance provided overarching principles and a framework for guiding United Nations rule of law activities at the national level. Furthermore, his 2009 Guidance Note on United Nations Assistance to Constitution-making Processes outlined the components of constitution-making processes and recognized that such processes are a central aspect of democratic transitions.

A practical example of the importance of the rule of law for democracy building is the fact that the rule of law is a fundamental principle embraced in most modern democracies. Constitutions contain the fundamental and, most often, supreme law of the State, and the rule of law dictates the enforcement of those principles above all other laws. Constitutions also preserve fundamental principles and values by making the process of amendment burdensome. Some constitutions ensure the permanence of certain principles and values by prohibiting amendments. The judiciary, which applies the law to individual cases, acts as the guardian of the rule of law. Thus, an independent and properly functioning judiciary is a prerequisite for the rule of law which requires a just legal system, the right to a fair hearing and access to justice.⁵

Constitutions do much more than establish a government and regulate its relationships with citizens. In many countries, they have also become crisis management tools. The benefits of constitutions designed for conflict-affected and deeply divided States hinge on their ability to reconcile groups, to address intolerable grievances and to prevent further polarization and conflict deterioration. Also in this area, national ownership is of the utmost importance. The choice of process should be left to national constitution builders who are able to prevail in the local context. Constitutional design suited to the requirements of managing conflict has had some degree of success. At the same time, other factors such as economic inequality are increasingly important determinants in new demands for constitution building.

Electoral justice provides another example of the linkages between democracy and the rule of law. Electoral justice ensures that every action, procedure and decision related to the electoral process is in line with the law and that the enjoyment of electoral rights is protected and restored, giving people who believe their electoral rights have been violated the ability to file a complaint, get a hearing and receive an adjudication. An electoral justice system is a key instrument of the rule of law and the ultimate guarantee of compliance with the democratic principle of holding free, fair and genuine elections.⁶

As noted in a recent report⁷ of the Global Commission on Democracy, Elections and Security, elections with integrity¡ªbased on political equality, transparency and accountability¡ªare crucial for human rights and democratic principles, as they give life to rights enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women and other international human rights instruments and covenants.⁸ One of the main challenges to elections with integrity consists of building the rule of law to substantiate claims to human rights and electoral justice so that citizens, including political competitors and those in opposition, have legal redress to exercise their election-related rights.⁹

During negotiations on the General Assembly's Declaration on the Rule of Law, some Member States referred to the need for the international community to assist and support countries emerging from conflict or undergoing democratization, upon their request, as they may face special challenges in addressing legacies of human rights violations during their transition and in moving towards democratic governance and the rule of law. The concept was eventually reformulated in paragraph 18 by referring only to the special challenges of transitions with no mention of democratization. However, this debate has shown a growing awareness of the importance of building on the experience over the last 30 years, particularly from the Global South, of multiple and often simultaneous transitions¡ªfrom war to peace, from command to market economies, from autocratic to democratic systems¡ªto support home-grown democratization processes.

Paragraph 7 of the General Assembly Declaration on the Rule of Law called for the consideration of a strong rule of law perspective in the post-2015 international development agenda. The ongoing debate on the post-2015 perspectives provides a unique opportunity to stress the interlinkages between democracy, human rights and the rule of law. To ensure domestic accountability within democratic ownership frameworks, it is essential to take into account both the democracy and rule of law dimensions of the next generation of Millennium Development Goals/Sustainable Development Goals and the potential value of a voluntary goal on democracy, human rights and the rule of law to help drive the development agenda.

Notes

1? See para. 5 in "Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels" (A/67/L.1), 19 September 2012, available at?

2? The "rule of law and transitional justice in conflict and post-conflict societies", 23 August 2004 (S/2004/616), para. 6, recalled in "Delivering justice: programme of action to strengthen the rule of law at the national and international levels", 16 March 2012 (A/66/749), para. 2, available at .

3? See the Guidance Note of the Secretary-General on Democracy available at .

4? "Strengthening and coordinating United Nations rule of law activities" (A/66/133), 8 August 2011.

5? International IDEA, A Practical Guide to Constitution Building: Principles and Cross-cutting Themes, Stockholm 2012, pp. 17-18, available at .

6? International IDEA, Electoral Justice: The International IDEA Handbook, Stockholm 2010, p. 9, available at .

7? Global Commission on Elections, Democracy and Security, Deepening Democracy: A Strategy for Improving the Integrity of Elections Worldwide, A joint initiative of the Kofi Annan Foundation and International IDEA, September 2012, available at .

8? Elections with integrity matter in many other tangible ways: empowering women, fighting corruption, delivering services to the poor, improving governance and ending civil wars.

9? Other challenges are: building professional, competent election management bodies; creating institutions and norms of multiparty competition and division of power; removing barriers to universal and equal political participation; and regulating uncontrolled, undisclosed and opaque political finance.