Ãå±±½ûµØ

?

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

"Look around us", instructed the village chief in Small Sefadu, a tiny community in the eastern reaches of Sierra Leone and home to some of the country's biggest diamond mines. Together we survey the scene: a cratered dirt road is punctuated by burned-out houses, which is a signature reminder of the marauding rebels who took over the town during Sierra Leone's 11-year civil war. Teenage boys, some of them former child soldiers, loiter listlessly on a veranda across the road. None have a job. No street lights and no other services exist. "This is the country's breadbasket¡ªthe diamonds come from here¡ªbut we get no benefit", the chief tells me. "Do you think the law can help us?"

At the time, I had no answer for him. The country's legal system had been destroyed by the war and less than 200 lawyers serviced the country's population of 5.5 million¡ªmost were based in Freetown, the capital, which was far from Small Sefadu. Consequently, the rule of law and its ability to address development inequities seemed remote. But the chief knew that something was seriously amiss: while the nearby mines flourished, his community languished. At least to him, the stabilizing force of the law was needed to mediate between poverty and power.

I was reminded of the village chief and his community again this September as I listened to the speeches by presidents and ministers at the United Nations General Assembly. As world leaders came together to declare their joint commitment to the rule of law at the main thematic session of the General Assembly, they made a specific link with development. The rule of law and development, they agreed, were "strongly interrelated and mutually reinforcing". The advancement of the rule of law "is essential for sustained and inclusive growth, sustainable development, the eradication of poverty and hunger and the full realization of human rights and fundamental freedoms, including the right to development". The leaders were "convinced that this interrelationship should be considered in the post-2015 international development agenda".¹

Historically, however, global decision makers neglected the rule of law when deciding on development policy. Indeed, the rule of law is notably missing from the biggest global agreement designed to end extreme poverty and promote development: the Millennium Development Goals (MDGs), which will draw to a close in 2015.² The MDGs, while successful in many ways, have failed to live up to some of the key hopes expressed in the United Nations Millennium Declaration (2000),³ the seminal Ãå±±½ûµØtext from which the goals emerged. The Declaration saw the "central challenge" for the world as ensuring that "globalization becomes a positive force for all the world's people". Since 2000, however, globalization has not been, as the Declaration hoped, "fully inclusive and equitable". Instead, the gap between the rich and the poor continues to widen, xenophobia and discrimination are on the rise, and multiple financial crises around the globe are driving families into poverty and despair. The rule of law¡ªrealized through efforts to ensure access to justice for all¡ªcan be a steadying force amid all of this turmoil.

As the world started to contemplate a post-2015 development vision, the General Assembly in its September 2012 Declaration on the Rule of Law at the National and International Levels revisited this omission in the original MDGs. This Declaration represents a major opportunity to bring the high level policy on the rule of law to those people who need it most. States should now consider how the rule of law might feature in the post-2015 agenda¡ªwhether as a stand-alone goal on access to justice, as a target within a broader goal or as an indicator across all post-2015 goals.

IMPACT OF THE RULE OF LAW ON DEVELOPMENT

In places where poor and marginalized citizens know their rights and can have wrongs redressed, there are less discrimination, fewer human rights abuses, and more effective service delivery...Thus rule of law is at the very heart of what is needed for development efforts to be effective. Conversely, shortcomings in the rule of law underlie the exclusion, suffering, and poverty of many people.

Helen Clark
Administrator
United Nations Development Programme
General Assembly, 24 September 2012⁴

Development is sometimes equated with economic growth designed to facilitate a country's path to prosperity. Economic growth, however, may leave some people, usually the most marginalized and vulnerable, even further behind. Ensuring that all members of society benefit from a country's growth is increasingly becoming a goal of development policy and practice. Indeed, Nobel Prize winner and economist Amartya Sen argues that development's ultimate goal is to advance people's freedoms and capabilities.⁵ Yet, promoting commercial prosperity while maximizing human potential is no easy task. Reconciling these two aspirations is an inherently political process -- a constant battle to redistribute power, wealth and resources in a way perceived as legitimate and fair by all members of society.

A critical guidepost for managing the competing demands of development can be found in the United Nations Millennium Declaration. The Declaration reminds us of our shared fundamental values to which we all aspire: freedom from violence, oppression and injustice; equal rights for men and women; the need for solidarity with those who suffer most by virtue of distributing costs and burdens equitably and with a sense of social justice; the requirement of respect and tolerance for diversity; and sustainable development in natural resource management.

Realizing those fundamental values and putting them into action in people's everyday lives requires a fair, impartial and accessible justice system, one which evolves over time in response to society's demands and growth. Such legal systems are key to ensuring that the issues at the core of most people's daily lives and survival, including settling land and property disputes, redressing acts of violence, efforts to rise out of poverty, and the need to enjoy basic human rights, are adjudicated and resolved effectively and efficiently. Fair and predictable legal systems also provide the institutional backstop which undergirds the security for investors who drive economic growth.

However, sometimes formal legal systems are not able to cope with the demands of its citizens, nor are they accessible to people around the world. Globally, 4 billion people are estimated to live outside the protection of the law.⁶ Ensuring that all people have access to law, particularly those who are poor and often most in need of protection, requires additional support. Legal empowerment efforts are increasingly seen as an effective way to fill this gap, and such empowerment is about strengthening the capacity of all people to exercise their rights, either as individuals or as members of a community. Legal empowerment work is sometimes undertaken by civil society, either independently or in collaboration with a State, often through paralegal, legal aid or duty solicitor programmes. It is one way of promoting development by ensuring that more people have access to the law's protective and redistributive powers.

The Open Society Justice Initiative is a global rule of law organization which promotes legal empowerment around the world.⁷ It supports, among other things, paralegal efforts in Sierra Leone, duty solicitor programmes in Nigeria, as well as paralegals, legal aid efforts and law clinics in Indonesia. In doing so, we see the impact that the rule of law can have on people's everyday lives. In Sierra Leone, for example, paralegals have worked with inhabitants of several villages whose land had been damaged by a mining company without compensation. Using their network of contacts, they navigated the various local and national redress mechanisms, eventually obtaining redress by targeting the mining company at its headquarters in London and threatening legal action through the United Kingdom courts.

The impact of the rule of law on development is also supported by macrolevel studies conducted by major regional and global banks. Legal empowerment methods have proven effective around the globe in supporting community development. In the Philippines, for instance, legal empowerment efforts supporting agrarian reform were found to have had a positive economic impact on communities. An Asian Development Bank study concluded that land reforms in communities in which legal empowerment projects were implemented resulted in higher levels of productivity, higher incomes, more disposable income for residents, and more investment in their farms.⁸ In Ecuador, the World Bank found that Ecuadorian women who accessed legal aid as a means of legal empowerment were 10.4 per cent more likely to receive child support payments. These women were also 17 per cent less likely to suffer from domestic violence following a divorce.⁹ These outcomes resulted in improved economic conditions for women.

Legal empowerment efforts represent just one way that the rule of law can have real meaning in the daily lives of people and on economic development as a whole. More generally, efforts to promote access to justice for everyone is a key way to ensure that assets can be protected and that unfair practices and discrimination can be halted to allow for greater opportunities for individuals and communities. Evidence suggests that including access to justice in the post-2015 agenda will help ensure that the rule of law is a driving force for greater prosperity for everyone, and not just for the rich.

THE RULE OF LAW IN A POST-2015 VISION

While world leaders at the United Nations were "convinced that this interrelationship" between the rule of law and development "should be considered in the post-2015 international development agenda", no clear path exists to confirm that this ideal can become a reality. Multiple processes are currently trying to identify the key elements to include in a post-2015 vision. Secretary-General Ban Ki-moon has appointed a High-level Panel of Eminent Persons to advise him on what should be included in a post-2015 agenda. This panel is expected to issue its report in May 2013. It remains unclear how the General Assembly Working Group, set up to develop the Sustainable Development Goals arising out of the June 2012 Rio+20 conference in Brazil, will be linked with the post-MDGs process. It is possible that the two processes may be streamlined and ultimately combined. Yet, the decision on the issues to be included in the post-2015 goals will ultimately depend on the same body which recognized the link between the rule of law and development at the General Assembly: the diplomats in the General Assembly and their leaders. History, evidence and demand for justice suggest that the States that came together to recognize the fundamentally important link between the rule of law and development at the General Assembly should now take advantage of this opportunity to cement this linkage in the form of a post-2015 goal, target or indicator on access to justice, for this could produce real change in people's lives, while promoting development for all.

Notes

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

2? For information on the MDGs, see .

3? See the General Assembly, United Nations Millennium Declaration, 8 September 2000 (A/RES/55/2), available at .

4? See "Speech for Helen Clark", UNDP Administrator, High-level Meeting on the Rule of Law, sixty-seventh session of the General Assembly 2012, 24 September 2012, available at /ruleoflaw/wp-content/uploads/2017/05/Statement_UNDP.pdf.

5? Amartya Sen, Development as Freedom (Oxford University Press, 1999).

6? United Nations Commission on Legal Empowerment for the Poor, Making the Law Work for Everyone (2008), p. 1, available at .

7? See Open Society Justice Initiative at .

8? Asian Development Bank, "Legal Empowerment: Advancing Good Governance and Poverty Reduction, Appendix 1: The Impact of Legal Empowerment Activities on Agrarian Reform Implementation in the Philippines", (2001) pp. 127, 133, available at .

9? World Bank, "Impact of Legal Aid: Ecuador", February 2003, available at .