INPROL Blog: An Introduction to Rule of Law Topics- Rule of Law Guiding Principles
An Introduction to Rule of Law Topics - Rule of Law Guiding Principles
INPROL's Introductions Series highlights a general rule of law topic or a specific topic from INPROL's Digital Library of relevance for rule of law promotion.
UN Members' Flags - the UN Headquarters, New York. Photo by Aotearoa. Some Rights Reserved.*
Rule of Law Guiding Principles are the internationally agreed documents and frameworks that should guide the decisions and actions of rule of law practitioners and institutions working in developing, transitional, and conflict-affected settings.
Some of these guiding principles have been created by international organizations (e.g., the United Nations and the Organisation for Economic Co-operation and Development), and others were created by donor countries in unison with developing countries (e.g., the "Paris Declaration on Aid Effectiveness" and the "Accra Agenda for Action").
For some practitioners (e.g., those working for the United Nations), principles can be binding. Even when they are not binding, they provide examples of best practice approaches to engaging in rule of law assistance.
Particular principles include:
"Local ownership" is a key guiding principle for engaging in rule of law assistance. It is widely accepted that rule of law programs that are externally imposed cannot be successful or sustainable; national actors need to "own" new reforms or initiatives that promote rule of law.
What does it mean to "own" an initiative? The Paris Declaration on Aid Effectiveness frames ownership in terms of leadership, stating that "partner countries exercise effective leadership over their development policies, and strategies." Under the Paris Declaration, donors commit to respect partner-country leadership and help strengthen their capacity to exercise it.
Alternatively, the concept of "ownership" can be broken down into "commitment" (willingness) and "capacity" (ability). Ownership can also be understood to mean that support provided by the international community should be responsive to national preferences.
In the past, the international community-led approach to promoting the rule of law has been criticized for being ad hoc. This ad hoc approach is also linked to a lack of coordination. Best practices and guiding principles urge practitioners to ensure a coherent strategic approach to rule of law assistance. The Paris Declaration on Aid Effectiveness calls this "alignment," and requires that "donors base their overall support on partner countries' national development strategies, institutions and procedures."
In practice, this means that international actors' effors should fit into and complement larger strategies when they exist. The strategy may be a national strategy (e.g., a poverty-reduction strategy paper or a national development plan), a sectoral strategy (e.g., a justice sector strategy), or an institutional strategy (e.g., a strategy for the courts or police service). The strategy not only provides rule of law practitioners with a shared long-term vision and objectives, but also sets out a range of priority activities with which the international community can assist.
If a strategy does not exist, the international community should support the creation of a nationally owned strategy. Examples of assistance in this sphere include establishing national, local, and institutional structures to create and monitor a strategy; providing training and technical assistance; and supporting the engagement of civil society and the local population.
"Coordination" is a core guiding principle for engaging in rule of law assistance. A lack of coordination can result in duplication of efforts, whereas good coordination promotes accountability, transparency, and efficiency. Coordination is the easiest principle to understand in theory, but often it is very challenging to implement in practice. All organizations want to coordinate; however, few want to be coordinated by others.
At its core, "coordination" means that organizations and donors in the international rule of law community should coordinate with one another and with national counterparts, sharing information on activities and in-country initiatives. Likewise, "coordination" means that national actors should coordinate with one another and with the international community. Successful coordination efforts have created formalized coordination structures that involve all stakeholders, national and international, and that meet regularly to share information. These structures often have staff dedicated solely to coordination efforts. Best practice shows that these coordination mechanisms should be led or co-led by national actors.
Many practitioners argue that the success or failure of coordination hinges on interpersonal relationships and that the ability to create good relationships, mutual respect, and trust is the cornerstone of effective coordination. Practitioners may wish to refer to the Soft Skills portion of INPROL's Digital Library for more information on ways to enhance working relationships, respect, and trust.
In the context of international development and postconflict assistance, the word "sustainability" is most often associated with the concept of "sustainable development." Sustainable development has been defined by the United Nations, in the context of environmental development, as having two components: (1) "it meets the needs of the present" (2) "without compromising the ability of future generations to meet their needs." Rule of law has been increasingly recognized as a prerequisite for sustainable development, but it has yet to be closely examined as an object of sustainable development.
Despite a dearth of discussion of, and research on, what the concept of sustainability means for rule of law reform, interest is growing in making rule of law programs more effective in the short term, and in ensuring that their impacts last over time (i.e., in making them sustainable). Several development agencies have described sustainable projects as those that enable the benefits of a project to continue after donor funding and support have been withdrawn. Sustainability is understood to mean that a project has been so successful that the context-specific need for its work has disappeared by the time outside support is withdrawn.
Some organizations take a formal "human rights-based approach" to rule of law assistance. Others are more informal in their adherence to this approach, to the point that some individuals and organizations may not appeal to a language of human rights in explaining their work.
There is no one definition of a "human rights-based approach." The aim of such an approach, however, is clear: to mainstream or prioritize human rights in rule of law programming.
What does this mean in practice? The Statement on a Common Understanding of a Human Rights Based Approach to Development Cooperation endorsed by the United Nations contains three core approaches: (1) "[a]ll programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments;" (2) "[h]uman rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other human rights instruments [should] guide all cooperation and programming in all sectors [including the rule of law and justice sector] and in all phases of the programming process;" and (3) "cooperation [should] contribut[e] to the development of the capacities of 'duty-bearers' to meet their human rights obligations and/or of 'rights-holders' to claim their rights."
One of the guiding principles of humanitarian intervention is that international actors should be aware of the secondary impacts that their presence and work have on a conflict and should strive to minimize the negative results that intervention might cause. The concept was enunciated by Mary B. Anderson in her book Do No Harm: How Aid Can Support Peace--or War (1999). She argued that the aid provided during a conflict could sustain the conflict and become an obstacle to peace.
Similarly, the allocation of aid and international jobs can aggravate existing tensions and slow reconciliation both during and after a conflict. Outside interveners need to be aware of how aid and other forms of intervention can change the internal dynamic of a conflict and they need to be cognizant of any unintended consequences of their presence.
"Harmonization" as a guiding principle is set out in the Paris Declaration on Aid Effectiveness, which requires that donors' actions are "harmonised, transparent and collectively effective" in delivering assistance. The purpose of harmonization is to improve the efficiency of aid delivery. To this end, donors working in developing countries should first implement common arrangements and simplify procedures (e.g., for planning, funding, assessing, monitoring and evaluating, and reporting), and second, ensure complementarity and a more effective division of labor (e.g., by making full use of respective comparative advantages; delegating lead donors for particular programs, activities, and tasks; creating joint projects and pooled funds; and strengthening incentives for management and staff to work toward harmonization). The Paris Principles commit donors to harmonize their activities (e.g., through joint assessments, joint strategies, coordination of political engagements, and practical initiatives such as the establishment of joint donor offices).
The United Nations Guidance Note of the Secretary-General on the UN Approach to Rule of Law Assistance states that "the international community has sometimes underestimated the extent of political will necessary to support effective rule of law development and invested inadequately in political dialogue on rule of law promotion." Furthermore, it states that "rule of law assistance has often overemphasized technical dimensions and paid less attention to political and strategic considerations," and that "[u]ntil national stakeholders see the utility in supporting rule of law development, technical assistance will have little impact." Attention needs to be paid to the political aspects of rule of law assistance and to "fostering political space for reform and insulating the rule of law from inappropriate political influence or abuse."
"Mutual accountability" as a guiding principle is set out in the Paris Declaration on Aid Effectiveness, which requires that donors and partner countries are accountable for results. Under this principle, partner countries and national governments in developing countries commit to strengthening the parliament's role in national development strategies and/or budgets. They also commit to reinforce participatory approaches to development, involving a broad range of partners when formulating and assessing progress in implementing national development strategies. Donor countries commit to providing timely, transparent, and comprehensive information on aid flows so as to enable partner authorities to present comprehensive budget reports to their legislatures and citizens. Furthermore, both partner countries and donors in developing countries commit to joint assessments of mutual progress in implementing agreed commitments.
To learn more, visit INPROL's Digital Library section on "Rule of Law Guiding Principles" which contains links to articles, reports and books on Rule of Law Guiding Principles. Access to INPROL's Digital Library is available for INPROL members. To become a member sign up at www.inprol.org.
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