Adapting rule of law to interconnection

Dealing with the mass atrocities that have raged in the Democratic Republic of Congo (DRC) for the past 10 years or stopping the sale of illegal and unsafe medicine in large parts of the poorer world is clearly beyond the United Nations, the African Union, a single nation, the mining or pharmaceutical industry, or civil society organizations.

Indeed, it is now beyond doubt that all rather than just one of these stakeholders groups are necessary for any lasting solution in any of these areas. Which brings us to what formula of the above is required for the best, most practicable solutions. We increasingly see the emergence of such new forms of governance: the Kimberly Process in the diamond trade, the Financial Stability Board in the financial crisis, and the Global Compact on business and human rights. They involve many players and usually aim at coordinated implementation in different states and sectors, sometimes in places where state-based governance is limited. And they all rely, to a large extent, on rule of law.

Rule of law is generally seen as a necessary foundation for stable and effective solutions. These coordinated efforts are often seen as alternatives meant to solve problems until there is full governance with robust rule of law. But, even as we ask more and more of governments in normative terms to govern well, the unfortunate truth is that we don’t really know what to ask in terms of guiding principles from these new and varied forms of governance.

The most widely used approach is to bring state-based rule of law, as much as possible, to all corners of the world. Millions are spent on bringing rule of law to the DRC and elsewhere. Huge resources are put into developing binding international treaties based on the state model in areas such as global warming, mineral extraction and promoting global health. These are all positive moves but not enough to reinforce lasting change.

We know that rule of law is not brought somewhere in one lifetime and that negotiating a treaty takes a long time, let alone implementing it to full compliance. Therefore, to support international problem-solving, innovative forms of governance need to incorporate more rule of law, if need be without treaties or even formal laws. And this must be done in a very practical way. The notion of rule of law offers a varied toolbox that can enhance governance to produce more stable, legitimate and implementable solutions.

The widely accepted rule of law definition developed by the World Justice Project asks that those that govern are accountable under the law; that the rules used are clear, publicized, stable and fair, and protect fundamental rights; that the rules used are enacted, administered and enforced in a way that is accessible, fair and efficient; and that access to justice is provided by competent, independent and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient number, have adequate resources and reflect the make-up of the communities they serve.

These elements carry wide acceptance because they work; they have a long track record of producing better and more sustained governance. Too much transnational problem solving today, on the other hand, is ad hoc, driven only by immediate effectiveness arguments. When states, international organizations, companies and civil society organizations get together to solve a transnational problem, they should, as much as they can, practically apply these notions to what they are doing. That’s long-term effectiveness. That is true coordinated governance.

Authors: Sam Muller (Director, HiiL) and David Caron (C. William Maxeiner Distinguished Professor of Law, University of Berkeley California), are, respectively, the current and former chair of the Global Agenda Council on the Rule of Law of the World Economic Forum.

Image: The balance of Justice is photographed outside France’s national assembly in Paris REUTERS/Charles Platiau