STATEMENT OF THE INTERNATIONAL DEVELOPMENT LAW ORGANIZATION
THE RULE OF LAW, PEACE AND SECURITY, HUMAN RIGHTS AND DEVELOPMENT
February 27, 2014
Remarks by Irene Khan, Director-General, IDLO
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Mr. Deputy Secretary General,
Excellencies, distinguished delegates,
Ladies and gentlemen,
As the head of the only inter-governmental organization exclusively devoted to advancing the rule of law, and one which has both development and law in its very name, I am honored to be here with you to discuss the linkages between the rule of law and development.
“The rule of law and development are strongly interrelated and mutually reinforcing.” Those are not my words but words from the Declaration adopted at the 2012 High Level Meeting of the General Assembly on the Rule of Law (A/RES/67/1). The Declaration, you will recall, goes on to say that “the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms, including the right to development, all of which in turn reinforce the rule of law.”
Our purpose today is not to restate what has been already explicitly recognized by Member States, nor to tie ourselves down in a pattern of circular reasoning, but to move beyond it, to strengthen and expand our understanding of the dynamic relationship between the rule of law and development.
The question I would like to address is: how does the rule of law contribute to sustainable development? This question is particularly important as Member States negotiate the terms of a post-2015 sustainable development agenda. You will recall that at the 2012 High Level Meeting of the General Assembly at Member States were “convinced that this interrelationship should be considered in the post-2015 international development agenda.”
IDLO works in countries emerging from conflict as well as those seeking to strengthen democracy and enhance their economies. No matter where in the development spectrum a country stands, it needs good laws and regulations that are fairly administered by transparent and accountable institutions and that – most importantly – produce fair outcomes for all. The rule of law is not an abstract concept but a concrete basis on which to promote sustainable development. I believe the 2012 Declaration sets out some important principles defining the rule of law that are key to understanding why and how the rule of law and sustainable development are so closely related.
The 2012 Declaration recognizes the importance of fair, stable and predictable legal frameworks for “inclusive, sustainable and equitable development, economic growth and employment, generating investment and facilitating entrepreneurship...” The 2012 Declaration acknowledges that “all persons, institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law.”
The principles of legal predictability, fairness, equal protection and accountability are not just defining features of the rule of law, they are fundamental to sustainable, inclusive and equitable development.
Stable, transparent legal regimes are critical for economic development. Unfortunately, in many developing countries the laws and institutions to protect property, ensure sustainable use of land, or attract investment and innovation are outdated or inadequate, weak, ineffective or opaque. Many developing countries lack laws and institutions on energy generation, natural resources, water management, seed and plant varieties – all of which are essential for sustainable development. Frequently developing countries do not have the knowledge or capacity to negotiate complex contracts or take advantage of the flexibility and exceptions available under international intellectual property law.
Obviously there are many linkages between national and global development issues, and between the rule of law at the national level and international frameworks for trade, investment, intellectual property, technology transfer and climate change – where fairer rules would create a more equitable, inclusive and sustainable model of development.
Understanding better the relationship between the rule of law and development should help the international community and national governments to better address these legal and institutional capacity deficits that are not just barriers to economic growth but also obstacles to eradicating poverty and addressing inequalities within countries and among countries.
From food insecurity to energy poverty, from unsustainable management of natural resources to lack of access to life saving drugs, the rule of law enables us to tackle the big development challenges by facilitating access to science and technology, investment and innovation through predictable, transparent and fair laws, regulations and enforcement mechanisms.
The rule of law supports sustainability through laws, regulations and institutions that protect and enforce environmental rights, enhance environmental stewardship, ensure conservation and promote biodiversity. When the legal frameworks ensure both the interests of business as well as communities, a unity of mission behind common development goals is assured.
But the rule of law does more than promote economic growth and environmental sustainability, it helps to make the development paradigm more inclusive and equitable. It helps to fight poverty and inequality, and promotes social development.
Conversely, when the rule of law is absent – when laws discriminate against women, when the state is incapable of protecting people from crime and violence, when corruption, bribery and discrimination distort access to basic services, when the law is selectively enforced in favor of the rich and well-connected, when poor people are evicted from their land with no redress - that is when poverty deepens and inequality thrives.
Let me hasten to add that it is not enough to just adopt laws or create institutions. Laws can discriminate and exclude the poor, women, minorities or others. Institutions can be mismanaged and manipulated for the benefit of the privileged few. People whose rights are violated can be left without a remedy because the courts are too far away or litigation is too expensive. That is rule by law, not rule of law.
The rule of law, properly understood, provides not only certainty and predictability of the law but also substantive justice. Equality, accountability and respect for human rights – both economic, social and cultural rights as well as civil and political rights – are integral parts of the rule of law in this sense. In adopting the 2012 Declaration on the Rule of Law, the Member States reaffirmed the link between human rights and the rule of law. They also recognized “international norms and standards which are reflected in a broad diversity of national experiences” of the rule of law. Seen in this way, the rule of law provides a concrete basis on which to eradicate poverty, fight
discrimination and exclusion, empower women and marginalized communities and ensure equitable, affordable and meaningful access to basic services and resources for all. Equal protection, equal access and opportunity, voice and accountability are so closely linked that as a practitioner I find it hard to separate human rights, rule of law and development.
The rule of law ensures, very importantly, that there is accountability and that people have access to justice, including a mechanism for resolving disputes and a remedy when rights and entitlements have been denied. Indeed, there is growing recognition that poverty is not simply lack of income, but of powerlessness. Access to justice becomes critical. Information, legal awareness, legal aid, informal and alternative mechanisms of dispute resolution enable poor people to understand their rights and claim them.
Seen in this way, the rule of law is crucial and relevant to all three dimensions of development: economic, social and environmental. It provides for predictability and certainty through a stable, transparent legal regime, which is key to economic development. By strengthening the legal framework to protect the environment, it advances the environmental dimension of development. By ensuring the rights of communities as well as business the rule of law engenders social acceptance as well as sustainability. By ensuring equal opportunity and equitable access to basic services the rule of law enables inclusive social development, and helps to fight poverty and inequality.
The Rule of Law Declaration in 2012 stressed the importance of national ownership. In over 30 years of working in the rule of law sector, IDLO has learned that national ownership, supported by political will, is key to ensuring meaningful and lasting results in justice-making and legal reform. Legal pluralism is a basic principle of IDLO's work around the world.
Just as the development challenges of each country is unique, so is the legal system. Furthermore, rules and remedies may be informed not just by the national legal system but by local, customary or informal practices. We need to be sensitive to the diversity of challenges. Let me end by summing up the three distinct ways in which the rule of law supports development:
- Firstly, it helps to create the conditions for development by establishing the appropriate legal framework and the institutions for development.
- Secondly, it provides transparency and equity to the development process and enhances inclusion.
- Thirdly, it is an outcome of development - a just legal order with laws and institutions based on internationally recognized and nationally owned values and principles.
Let me make one final point. The 2012 Declaration recognizes that just as the rule of law supports development, development in turn reinforces the rule of law. The two are inter-dependent, and this symbiotic relationship means that support for one should not be conditional on progress of the other. The reality is that in a less than perfect world, the two must proceed hand in hand if governments are to meet the aspirations and demands of their people.