Painful Diplomacy: The Politics of a High-Level Document on the Rule of Law

Selecting a topic for the meeting that kicks off ministerial week at the General Assembly in September is routinely a painful diplomatic exercise, and agreeing on this year’s topic—strengthening the rule of law at the national and international level—was no exception. But now, an even more difficult endeavour remains: drafting the text of the solemn declaration. On September 24, 193 leaders of the world will gather at UN headquarters to reaffirm their commitment to the rule of law, and this document must be acceptable to all of them.

The rituals of such a ceremony have been consistently perfected over the years. Some six months in advance of the event, the UN Secretary-General publishes a solid, balanced and not-too-daring report that sets the tone of the discussion and offers practical suggestions for member states’ endorsement. The ball is then in the court of the president of the General Assembly, who in turn entrusts a couple of ambassadors (always one from the north and one from the south) to facilitate the drafting exercise.

This year’s high-level meeting is following this standard procedure, and while there is no particular reason to believe that it will fail in the end to produce the usual outcome—i.e., one additional brick in the ever-growing multilateral building—the level of uncertainty concerning the nature of the final product is perhaps a bit higher than usual. The lingering skepticism took a more definite shape last week on the occasion of the informal consultations on the very first draft statement circulated by the facilitators.

The six-page document that the ambassadors of Mexico and Denmark introduced to the membership was received with a salvo of “preliminary” remarks that highlighted a strongly bipolar appreciation. While “northern” countries seemed overall pleased and hinted at possible limited “clarifications and improvements” in the text, the collective voice of the “south,” expressed by the Non-Aligned Movement (NAM) and backed by Russia, quietly assaulted the document for these reasons:

1) too lengthy and detailed;

2) too far-reaching in advancing a controversial definition of what the rule of law is;

3) unbalanced, with too much stress on the national dimension of the rule of law; and

4) too prescriptive in suggesting follow-up measures which, at best, are deemed premature and inappropriate to the context of a political declaration.

Specifically, the proposal to adopt by 2015 a program of action on the rule of law, and to do so through “open, transparent and inclusive negotiations” to be held within a consultative forum, was bluntly turned down.

The facilitators diplomatically absorbed the cold reception of their text by the group representing almost two thirds of the UN membership and promised to work on streamlining it and to revert back to the plenary with a 2.0 version of the declaration by early July.

The veteran Mexican ambassador, however, felt compelled to invite all delegations to reflect upon the need for the declaration to include some kind of follow-up, in order to avoid their leaders the embarrassment of discovering that they came to New York to state their commitment to… leave things as they are. What kind of improvement is reasonably achievable over the next three months to satisfy everyone?

Since 2004, the UN has joined a large number of other international organizations in actively promoting the rule of law as a panacea capable of advancing most of humanity’s noblest causes, from sustainable development to protection of fundamental freedoms. So far, however, institutional efforts, generously supported by many donor countries, have been less effective in achieving these ambitious goals than in sustaining a flourishing “industry” of rule-of-law programs, experts, seminars, etc.

Time seems therefore ripe to try to provide real, political, universal impetus into this process, while at the same time taking organizational measures to streamline the jungle of UN organizations and programs currently involved in the rule of law agenda, not to mention those operating outside the UN.

Unfortunately, little progress has been made on agreeing on a shared definition of the rule of law–a problem that dates back to the very origin of this expression. Ambiguity, it can be argued, has been more or less consciously fed by the desire to rally consensual support. As a consequence, reference to the rule of law generates expectations in areas as diverse as UN Security Council reform and free market economy.

The bad news is that by September, this solemn declaration will not have provided the definitive definition of the rule of law. The good news is that such a development, while ideally welcomed, is not strictly necessary.

A three-fold, more modest goal seems achievable:

1) transferring the existing debate on the rule of law from the low-profile, just-for-initiate setting of the General Assembly’s Sixth Committee (legal affairs) to a more visible, political arena, whether a new forum, or the plenary of the General Assembly;

2) agreeing to use this debate as a platform for concerted action to strengthen the rule of law in all its dimensions;

3) explicitly agreeing that—even in the absence of any definition—the concept of rule of law is “consistent with international human rights norms and standards,” as per the UN Secretary-General’s 2004 words.

Gathering consensus on these objectives will not be easy, and the facilitators should be prepared to spend most of the traditionally idle month of August working hard on their text.

A painful effort, no doubt, but toil that is for a good cause.

Alberto Cutillo is a Visiting Senior Fellow at the International Peace Institute

The opening of the UN General Assembly, September 2011. UN Photo/Rick Bajornas