Read the author's previous article on the topic here.
Early in July, Ambassadors de Alba (Mexico) and Staur (Denmark) circulated the second draft of the declaration to be adopted at the high-level meeting on the rule of law, scheduled for September 24 at the UN General Assembly. The co-facilitators had gone a long way in trying to accommodate the various requests by member states to shorten the declaration and make it less far-reaching in terms of follow-up; for example, they removed any reference to a program of action on the rule of law to be adopted by the General Assembly in 2014. After all this work, there was probably an expectation that their efforts would be recognized, and that the hard part was behind them.
But as it happened last week at the second round of consultations over the text, there was not enough time allotted to let all delegates express their concern for how much still needs to be accomplished in such a short amount of time (though there was a steady flow of diplomatic appreciation for the work already done). The text as it stands (and most of them said this explicitly) is far from getting the unanimous support it needs to be adopted. Shortly after 6 p.m., the interpreters left, and the list of speakers still included ten members, forcing them to give impromptu English translations of their statements; a few minutes later, the sound technicians also left, thus silencing the microphones and forcing them to shout. In the end, some speakers gave up and planned to deliver–like all others–written comments by mid-August.
Overall, member states’ comments mirrored those of the June meeting, with a clear divide between the North, which was generally supportive of the text (though many anticipated a host of "language" proposals in order to clarify/improve some paragraphs) and the South (plus China and Russia), still criticizing the document as:
1) too lengthy and detailed for a solemn declaration;
2) contentious in its attempts to provide a definition of the rule of law which is not acceptable to all;
3) too prescriptive in terms of follow-up (despite the significant setback mentioned above). They reiterated their strong objection to the proposal to establish a consultative forum or, as a second best, an ad-hoc working group on the rule of law. They also reiterated their objection to move the debate on the issue from the Sixth Committee (where it can only be dealt with in a rather abstract and technical way) to the Plenary of the GA, where discussion of the rule of law could become more concrete and relevant, for instance by linking it with issues such as human rights, development or peacekeeping.
There were also some additions in the text. For instance, it now contains a reference to the reform of the Security Council. However, the language proposed was criticized by members from the South for being too mild and generic, as well as from the P5 and others from the North for being misplaced, given the existence of an appropriate forum where the issue is currently dealt with.
Overall, the most contentious points remain those concerning the follow-up, both in terms of substance and mechanisms.
One may draw an analogy with what happened in 2006 when the high-level dialogue touched upon migration and development, though the roles were reversed —at the time, the South wanted a robust follow-up, while the North regarded the event as a single shot. In the end, those vetoing any substantive and institutional change prevailed, but accepted a welcoming language in support of initiatives outside the UN (the resolution noted “with interest the offer of the Government of Belgium to convene a state-led initiative, the Global Forum on Migration and Development”) and postponed “possible options for appropriate follow-up” to 2008 (when, eventually, it was decided to hold a second high-level dialogue scheduled for 2013).
This scenario might repeat itself, also given the lack of enthusiasm inside the North (where, actually, some members are rather wary of creating a new forum of which they will have no control; not to mention the financial cost attached to any new bureaucracy).
The Secretary-General’s report set four ambitious goals for the high-level event: that the General Assembly 1) adopt a program of action for the rule of law, 2) agree to a process to develop clear rule of law goals, benchmarks and indicators, 3) adopt other key mechanisms to enhance dialogue on the rule of law, and that 4) member states seize the opportunity to make individual pledges related to the rule of law.
As of today, they all look at risk. This should not be a reason for surprise, and even less for despair. Scaling back the initial ambitions were part of the plan, and the new draft declaration (to be tabled until late August) will likely go a step or two further in this direction.
At the end of the day, giving up formal follow-up mechanisms might not represent a major setback, but rather the recognition that times are not ripe yet for them. High-level participation and commitment to sustain the rule of law at the political level would suffice to call the event a success. It might be a good idea, however, for those members who are true friends of the rule of law (this is the name of an informal group of states meeting under the Austrian presidency) to take stock of the status of the negotiation, sacrifice two or three of the initial goals, and agree to spend all their energies in order to retain one or two of them.
The real “red line” not to be trespassed is for the dialogue to cast doubts on the acquis of the rule of law operational agenda, endangering the core values that, even in the absence of a universally-agreed definition, is encapsulated today by the rule of law. The high-level event needs to reiterate loudly and clearly that states should not only operate under the rule by law, but also that their basic laws must be consistent with international human rights norms and standards.
Alberto Cutillo is a Visiting Senior Fellow at the International Peace Institute.