VISITING EXPERTSʼ PAPERS
THE RULE OF LAW AS A CONCEPT IN DISCUSSIONS AT THE
UNITED NATIONS
Matti Joutsen＊“When I use a word”, Humpty Dumpty said, in rather a scornful
tone, “It means just what I choose it to mean ‒ neither more nor
less.” “The question is, said Alice, “whether you can makewords mean so many different things.” “The question is”, said
Humpty Dumpty, “which is to be master ‒ that’s all.” (Lewis
Carroll, Through the Looking Glass, chapter 6)

I. INTRODUCTION: ON WHAT LEVEL DOES THE ʻRULE OF LAWʼ APPLY:NATIONAL OR INTERNATIONAL?
The concept of the rule of law has a lengthy but uneven history in the work of the United Nations. The
path from a brief reference in the preamble to the 1948 Universal Declaration of Human Rights toincorporation into one of the Sustainable Development Goals in 2015 was anything but smooth. As often
happens with concepts in the United Nations, there have been considerable disagreements over what ismeant by the rule of law, and in what way it is relevant to the work of the UN.
This paper examines how the concept has been used and understood within the context of the United
Nations. Words are used to convey specific meanings, and the assumption is that the audience ‒ in thisconnection those involved in the work of the United Nations ‒ have a shared understanding of these
meanings. This is not always the case. When different speakers use a key word or phrase in a different way,difficulties arise in seeking consensus. And if consensus is reached despite disagreement over what key
words or phrases actually mean (a situation which, in UN jargon, has at times been jocularly referred to as
ʻconstructive ambiguityʼ), it will be equally difficult to decide what consequences that consensus should have,what action should be taken, what priorities should be set.
＊ ＊ ＊ ＊ ＊In 1948, the General Assembly of the United Nations proclaimed the Universal Declaration of Human
Rights (GA resolution 217 A). The third preambular paragraph states that ʻ... it is essential, if man is not to becompelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law...ʼ
A second, indirect, early reference to the rule of law can be found in the preamble to the UN Charter,
which states that one of the aims of the United Nations is ʻto establish conditions under which justice andrespect for the obligations arising from treaties and other sources of international law can be maintained.ʼ
Presumably, one condition under which justice and respect for legal obligations can be maintained is that they
can be recognized and enforced; hence, the rule of law.
The reference in the Universal Declaration of Human Rights, in particular given that the language of thisDeclaration focuses largely on the rights of the individual, points to the role of the rule of law in protecting theindividual against the state. The indirect reference in the Charter, in turn, points to sources of internationallaw. At the time the Charter was drafted, the primary actors under international law were the individualstates. For this reason, this latter reference points to the role of the rule of law in ensuring respect forsovereignty and non-intervention in the affairs of other states.

＊

Special Advisor, Thailand Institute of Justice.

39

RESOURCE MATERIAL SERIES No. 105

The seeds for disagreement over how the ʻrule of lawʼ should be understood had been sown: should theconcept be understood to apply on the national level (protecting individuals against the state) or on theinternational level (protecting one state or people against another)?
The ambiguity of the concept was fostered through many years of disuse in the discourse in the halls of
the United Nations. Despite the early recognition given to the importance of the rule of law, the phrase was
not in very wide usage during the first decades of the work of the United Nations. For example, it is not to befound in any subsequent major human rights instrument, such as the International Covenant on Civil andPolitical Rights, or the International Covenant on Economic, Social and Cultural Rights. ʻRule of lawʼ did not
really begin to become an everyday working term for the UN until in the immediate aftermath of the massive
geopolitical changes in Europe at the end of the 1980s and the beginning of the 1990s.
When the fall of the Berlin Wall and the advent of the era of perestroika and glasnost, Western powers
triumphantly asserted the importance of human rights and democracy. The 1993 World Conference on
Human Rights, held in Vienna, made reference to the rule of law, after which the phrase began making
regular appearances in General Assembly resolutions, in which the rule of law was regarded as an essential
factor in the protection of human rights.1 Promoting the rule of law also became a priority in United Nations
technical assistance activities carried out by the High Commissioner for Human Rights, and in the work of
the United Nations Development Programme.
At the same time, the phrase gained wider use in the context of UN peacekeeping operations. Before the1990s, ʼblue helmetsʼ were generally deployed to observe and maintain ceasefires, as with the first missions inconnection with the 1948 Arab-Israeli war, the Indo-Pakistani wars of 1947 and 1965, and the Suez crisis in
1957. The Security Council resolutions that established the mandates for these missions saw no reason torefer to the rule of law (or, for that matter, to human rights). Following the end of the Cold War, however, UN
peacekeeping missions began to involve more non-military elements. As noted by Hans Corell, the UnderSecretary-General for Legal Affairs, the conflicts that these missions were addressing ʻare but symptoms of
the absence of a system under the rule of lawʼ.2 The resolution that adopted the so-called Brahimi Report on
UN Peacekeeping expressly stated that the Security Council
ʻEmphasizes that the biggest deterrent to violent conflict is addressing the root causes of conflict,including through the promotion of sustainable development and a democratic society based on astrong rule of law and civic institutions, including adherence to all human rights - civil, political,
economic, social and culturalʼ,and that the Security CouncilʻWelcomes the Secretary-Generalʼs intention to spell out more clearly, when presenting future
concepts of operations, what the United Nations system can do to help strengthen local rule of law andhuman rights institutions, drawing on existing civilian police, human rights, gender and judicial
expertiseʼ.3
Four years later, in 2004, the Secretary-General delivered on his promise to provide an outline of what
could be done in the context of UN peacekeeping operations. This came in the form of a report entitled ʻThe
rule of law and transitional justice in conflict and post-conflict societiesʼ.4
Despite this increased reference to the rule of law, there is no authoritative definition of the rule of law in
the UN context. Perhaps the closest to an authoritative definition of the rule of law in the working of theUnited Nations is the description given by the Secretary-General in a report published in 2004, in which heSee, for example, Thomas Fitschen, Inventing the Rule of Law for the United Nations, in A. von Bogdandy and R. Wolfrum (eds,
2008), Max Planck Yearbook of United Nations Law, pp. 347-380, at pp. 358-361.
2
Hans Corell (2000), ʻThe Role of the United Nations in Peacekeeping ‒ Recent Developments from a Legal Perspectiveʼ,
presentation at the Conference National Security Law in a Changing World, Washington DC, available at: http: //legal. un.
org/ola/media/info_from_lc/washingtonDec00.pdf
3Security Council resolution 1327 (2000).
4
Report of the Secretary-General, S/2004/616.
1

40

168TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTSʼ PAPERS

described the rule of law as ʻa principle of governance in which all persons, institutions and entities, public andprivate, including the State itself, are accountable to laws that are publicly promulgated, equally enforced andindependently adjudicated, and which are consistent with international human rights norms and standards. It
requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before thelaw, accountability to the law, fairness in the application of the law, separation of powers, participation indecision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.ʼ5
One phrase in the Secretary-Generalʼs description raises again the issue of whether the rule of law should
apply on the national or the international level: his assertion that also the State itself is accountable under therule of law. This is a far cry from the Justinian concept that what pleases the prince is law, which in time led
to Blackstoneʼs famous assertion that ʻthe king can do no wrongʼ. As noted in the Secretariat working paper
for the Tenth Crime Congress (2000), the rule of law was seen as a remedy for human rights abuses. The
working paper stresses one fundamental reason why the rule of law should be a particular concern incriminal justice: ʻThe very nature of the criminal justice systems and sanctions makes them the ultimate
instrument for turning the rule of law itself into a mechanism of repression for political, social, economic orother purpose.ʼ6
This, indeed, appears to be the primary source of the contention: some saw the concept ʻrule of lawʼ as atool to be used in advocating for democratic reforms, while others regarded such advocacy as intervention inmatters which are essentially within the domestic jurisdiction of states, intervention which is prohibited
under art. 2(7) of the UN Charter.

II. DISCUSSIONS ON THE RULE OF LAW IN THE CONTEXT OF THE
SUSTAINABLE DEVELOPMENT GOALS
The debate during the 1990s over whether and how the concept of the rule of law is of relevance in thework of the United Nations continued into the work on the Millennium Development Goals (MDGs). In
adopting these goals, the member states of the United Nations resolved to ʻstrengthen respect of the rule oflaw in international as in national affairsʼ, and to ʻspare no effort to promote democracy and strengthen therule of lawʼ, but were unable to reach agreement on any specific goals in this respect.7
In the process of formulating the 2030 Agenda for Sustainable Development, a strong argument was madethat the implementation of the MDGs had been hampered by poor governance, conflict, and absence of legal
rights: essentially, the absence of the rule of law.8 The point was made, for example, by the UN System Task
Team on the Post-2015 UN Development Agenda,9 the High Level Panel of Eminent Persons advising the UN
Secretary-General on the Post 2015 Agenda,10 and the Open Working Group on Sustainable Development
Goals.11

Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies, S/2004/616, para 6.
Fitschen argues that this ʻreport, in the eyes of many, provided the first formulation of a common concept where no coherent
policy direction had existed beforeʼ (Fitschen, op.cit., p. 350 and the literature cited therein). He notes, however, that subsequent
debates in the UN showed that ʻthere is hardly a common understanding of this issueʼ; ibid., p. 354.
6
A/CONF.187/3, paras 2 and 4.
7
GA A/RES/55/2, para 9 and 24.
8This was the conclusion, for example, of the UNDP in an analysis of a compilation of country reports on implementation of the
MDGs. UNDP, The Path to Achieving the Millennium Development Goals: A Synthesis of Evidence from Around the World,
New York, 2010. See e.g. pp. 51-53, 57-59 and 66-67.
On the discussion on the rule of law in the context of the SDGs more generally, see also Per Bergling and Sophie Tim (2015),
The New Black on the Development Catwalk: Incorporating rule of Law into the Sustainable Development Goals, Washington
International Law Journal, available at https://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1493/24WILJ0435a.pdf?sequence=4&isAllowed=y pp. 437-439
9Realizing the Future We Want for All (2012), Report to the Secretary General ‒ UN System Task Team on the Post-2015 UN
Development Agenda, New York.
10
A New Global Partnership: Eradicate Poverty and Transform Economies Through Sustainable Development. The Report of
the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda, available at http://www.post2015hlp.org/wpcontent/uploads/2013/05/UN-Report.pdf
11
GA resolution A/68/970.
5

41

RESOURCE MATERIAL SERIES No. 105

This sense that the rule of law is fundamentally important in development was strengthened by the
adoption of the Declaration of the high level meeting of the General Assembly on the rule of law at thenational and international level.12 Several paragraphs in this lengthy Declaration make an explicit connection
between rule of law and development. Paragraph 7 can be cited in particular, as it looks forward to theformulation of the post-2015 agenda:
ʻ7. We are convinced that the rule of law and development are strongly interrelated and mutually
reinforcing, that the advancement of the rule of law at the national and internal levels is essential forsustained and inclusive economic growth, sustainable development, the eradication of poverty andhunger and the full realization of all human rights and fundamental freedoms, including the right todevelopment, all of which in turn reinforce the rule of law, and for this reason we are convinced that
this interrelationship should be considered in the post-2015 international development agenda.ʼ
The recognition that the various UN task forces and the Declaration of the General Assembly gave to theimportance of the rule of law, however, did not end the debate over whether or not the rule of law should beincorporated into the SDGs. The difficulties had to do with (1) the politicized debate over whether the rule oflaw, in the UN context, should be seen at the national or the international level, (2) disagreement over the
relationship between governance and the rule of law, and (3) the more technical issue of how to measure therule of law.13
The national versus international aspect of this debate has already been mentioned. Most developed
countries, and a number of developing countries, were of the view that the United Nations should beconcerned with the rule of law also on the national level, with national compliance with human rights norms,
and with issues such as access to justice. The Non-Aligned Movement, in turn, emphasized that the focus in
the UN should be on the international level (for example with the status of Palestine), and countries in thisgroup made reference to the fact that article 2 (7) of the UN Charter prohibits the Organization frominterfering in essentially domestic matters. The Non-Aligned Movement also stressed that because of thediversity of legal, political and economic systems, there was no ʻone size fits allʼ for the rule of law; the national
context should be respected.14
A second difficulty referred to above had to do with the concept of ʻgood governanceʼ and its relationshipto the rule of law. The Western industrialized countries, which at the same time are often the donor countries
in development aid, tend to be of the view that economic development and poverty reduction can bepromoted by reducing the role of the state, breaking up the dominance of corrupt political elites, andencouraging private enterprise and foreign investment (the so-called ʻWashington Consensusʼ that prevailed
during the 1980s and the early 1990s).15 This would imply an agenda that emphasizes the transparency ofdecision-making in national and local government, liberalization of the economy, and encouragement of grassroots democratic movements. It would also imply what has been referred to as conditionality in technicalassistance: donors would provide assistance only on condition that the recipients undertake certain structuraland political reforms which, in the eyes of the donors, would improve the effectiveness and sustainability of
the assistance.
The third difficulty mentioned was finding a way to measure the rule of law. In the case of several othergoals being considered, it was (relatively) easy to identify quantifiable goals and to indicate possible data
sources: the rate of infant mortality, the number of persons living on less than $1.25 a day, the rate of literacy,
and so on. The concept of the ʻrule of lawʼ, in comparison, remained vague. There was also the difficulties
posed by the variety of legal systems, the absence of uniform terminology,16 and the paucity of comparable
hard data on the operation of justice. Those critical of including a goal on the rule of law seized on theseGA resolution A/RES/67/1.
Bergling and Tim, op.cit., pp. 439-449.
14
Bergling and Tim, op.cit., pp. 444-445.
15
Regarding the ʻWashington Consensusʼ, see in particular David Kennedy, The ‘Rule of Law,’ Political Choices, andDevelopment Common Sense, in David M. Trubek and Alvaro Santos (eds., 2006), The New Law and Economic Development. A
Critical Appraisal, Cambridge, pp. 95-173, at pp. 128-150.
16
For example, offences are defined differently in different countries, and even such basic concepts as ʻcrimeʼ, ʻpolice officerʼ,ʻcourtʼ and ʻconvictionʼ are understood in widely different ways.
12
13

42

168TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTSʼ PAPERS

technical difficulties as further arguments to bolster their case.17
Despite the concerns by the Non-Aligned Movement countries, the SDGs ultimately did include a specifictarget on the rule of law, under Goal 16, which calls for the promotion of peaceful and inclusive societies forsustainable development, the provision of access to justice for all, and the building of effective, accountable
and inclusive institutions at all levels. This target, 16.3, however, is rather vague: the member states are toʻpromote the rule of law at the national and international levels and ensure equal access to justice for all.ʼ

III. EMERGENCE OF THE CONCEPT OF THE RULE OF LAW IN THE
UNITED NATIONS CRIME PROGRAMME
It is presumably not coincidental that the phrase ʻrule of lawʼ began to appear in the context of the UN
Crime Programme during the 1990s, at the same time as the phrase was gaining traction in the UN humanrights programme, in the UN Development Programme, and in peacekeeping operations.
The first indication that a terminological shift was underway in the UN Crime Programme could be seenin the standards and norms on crime prevention and criminal justice. The drafting of these ʻsoft lawʼ
instruments began during the early years of the work of the United Nations, and they have been widely used
for example in technical assistance.18 However, despite the central role of these standards and norms, it was
only in 1990 that the phrase ʻrule of lawʼ made its first appearance in the one of them, the UN Standard
Minimum Rules on Non-Custodial Treatment (the Tokyo Rules), in the context of legal safeguards for theoffender.19 Several subsequent standards and norms make reference to the phrase.20
The rule of law has also made frequent appearances in (draft) resolutions formulated by the UN
Commission on Crime Prevention and Criminal Justice, for submission to ECOSOC and, in some cases, to theGeneral Assembly. The phrase has even been the main topic of several resolutions, such as the (draft)
resolutions on the rule of law and development (2004), the rule of law in Africa (2005 and 2006), the rule of law
and criminal justice reform (2006), the rule of law and prosecution services (2008), the rule of law and criminal
justice reform, particularly in the context of the UN system-wide approach to fighting transnationalorganized crime and drug trafficking (2012), and ‒ feeding into the process of formulating the SDGs ‒ the ruleof law, crime prevention and criminal justice in the United Nations development agenda beyond 2015 (2013
and 2014).
The most important events in the UN Crime Programme are the UN Congress on Crime Prevention andCriminal Justice, which are organized every five years. The 1995 Crime Congress was the first one to beorganized after the major political changes in Eastern Europe, and coincidentally also the first to be organized
after the UN Crime Programme was restructured (in 1991). The 1995 Crime Congress had as one of its fourmain themes, ʻInternational Cooperation and Practical Assistance for Strengthening the Rule of Law:
Promoting the United Nations Crime Prevention and Criminal Justice Programme,ʼ and one of the resolutions
adopted at this Congress dealt with ʻInternational Cooperation and Practical Assistance for Strengthening theRule of Law: Development of United Nations Model Instrumentsʼ.21 The next Crime Congress, in 2000, also
had the phrase inserted into the formulation of one of its four main themes, ʻPromoting the rule of law andExtensive consultations were held on this measurement issue. The author participated in one process, which resulted in the
UNODC publication, Accounting for Security and Justice in the Post-2015 Development Agenda, Vienna, 2013. This publicationsuggested a large number of possible indicators.
18
An excellent presentation of the UN standards and norms can be found in Roger Clark (1994), The United Nations Crime
Prevention and Criminal Justice Program. Formulation of Standards and Efforts at Their Implementation. University ofPennsylvania Press. The standards themselves are available at https://www.unodc.org/documents/justice-and-prison-reform/
compendium/English_book.pdf
19
Rules 2.5 and 3.3.
20
The phrase ʻrule of lawʼ appears not only in the Tokyo Rules, but also in the Guidelines for the Prevention of Crime (ECOSOC
resolution 2002/13, annex, principle 12), the Updated Model Strategies and Practical Measures on the Elimination of Violenceagainst Women in the Field of Crime Prevention and Criminal Justice (GA resolution 65/228, annex, para. 16(j)), the Plan ofaction for the implementation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power(ECOSOC resolution 1998/21, annex, para. 4), the Bangalore Principles of Judicial Conduct (E/CN. 4/2003/65, and ECOSOC
resolution 2006/23, annex, preambular para 5 and principle 1), and the United Nations Principles and Guidelines on Access to
Legal Aid in Criminal Justice Systems (GA resolution 67/187, annex, para 1 and principle 1).
17

43

RESOURCE MATERIAL SERIES No. 105

strengthening the criminal justice systemʼ.22
The working paper prepared by the Secretariat for the UN Crime Congress23 held in 2000 identifies someof the ʻelements or requirements of the rule of lawʼ, such as the need for the law to be comprehensive, clear,certain and accessible, the legitimacy of the law, equality before the law, and institutional independence andthe separation of powers. Although several speakers during the High-Level Debate, which was arranged forthe first time at such a Crime Congress, noted the importance of the rule of law, the description of theconcept provided by the Secretariat did not generate any significant discussion at the Congress.24 The phrase
does not even appear in the final Congress declaration, although a vague echo of it can be found in thereference in preambular paragraph 4, which stresses that ʻa fair, responsible, ethical and efficient criminal
justice system is an important factor in the promotion of economic and social development and of humansecurityʼ.
The declarations of the subsequent Congresses, however, refer to the phrase quite often. The Bangkok
Congress Declaration (2005), for example, refers to it in paras 6, 8, 9, 11 and 24. In Bangkok, the member states
voiced their support for a more integrated approach within the United Nations in respect of technicalassistance and cooperation in criminal matters ʻas a contribution to the establishment and strengthening of
the rule of lawʼ (para 6), and their conviction that upholding the rule of law and good governance and proper
management of public affairs and public property at the local, national and international levels are
prerequisites for creating and sustaining an environment for successfully preventing and combating crimeʼ(para. 8). The member states further recognized ʻthe role of individuals and groups outside the public sector,
such as civil society, non-governmental organizations and community-based organizationsʼ in crime
prevention and criminal justice, and encouraged the ʻadoption of measures to strengthen this role within therule of lawʼ (para. 9).
Five years later, the member states at the Salvador Congress declared their recognition of ʻthe centralityof crime prevention and the criminal justice system to the rule of lawʼ and that ʻlong term sustainableeconomic and social development and the establishment of a functioning, efficient, effective and humane
criminal justice system have a positive influence on each otherʼ (preambular para. 4), as well as their concern
about ʻthe negative impact of organized crime on human rights, the rule of law, security and developmentʼ
(preambular para. 6).25
The most recent Crime Congress, held in Doha in 2015, even had the phrase enshrined in the (lengthy)
title of its Declaration: the Doha Declaration on Integrating Crime Prevention and Criminal Justice into theWider United Nations Agenda to Address Social and Economic Challenges and to Promote the Rule of Law at
the National and International Levels, and Public Participation.
The star billing given to the rule of law at the Doha Congress can be attributed directly to the fact that
the Congress was held a few months before the General Assembly was to finalize and adopt the Sustainable
Development Goals, and the Doha Congress was seen as an excellent opportunity to contribute to the process,and in particular to seek to ensure that the rule of law would be featured as a self-standing goal in the SDGs.
In this light, it is understandable that the Doha Declaration refers to the rule of law time and time again.
The single preambular paragraph sets the tone, by asserting that the member states had gathered in Doha toʻreaffirm our shared commitment to uphold the rule of law and to prevent and counter crime in all its forms
and manifestations, at the domestic and international levels, to ensure that our criminal justice systems are
effective, fair, humane and accountable, to provide access to justice for all, to build effective, accountable,
References in the Crime Congress documentation indicate that in this context, the rule of law was largely understood assomething that could be attained by promoting the implementation of UN standards and norms on crime prevention andcriminal justice. See, for example, section I(3) of the Congress Recommendations on the four substantive topics of the Congress,
A/CONF.169/16/Rev.1. See also para 22 of the report of the Asia and Pacific regional preparatory meeting, A/CONF.169/RPM.
1/Rev.1., and para II(1) of the Resolution of the African regional preparatory meeting, A/CONF.169/RPM.2.
22
The 2000 Crime Congress, however, did not make any reference to the rule of law in its Congress Declaration.
23
A/CONF.187/3, paras 9-21.
24
The present author served as Rapporteur at the 2000 Congress.
25
The rule of law was also mentioned in paras 8, 43 and 44 of the Salvador Declaration.
21

44

168TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTSʼ PAPERS

impartial and inclusive institutions at all levels, and to uphold the principle of human dignity and the universal
observance and respect of all human rights and fundamental freedomsʼ.
The Doha Declaration goes on to make several more points regarding the rule of law:
- a central component of the rule of law is the importance of effective, fair, humane and accountable
crime prevention and criminal justice systems and the institutions comprising them (para. 3);- sustainable development and the rule of law are strongly interrelated and mutually reinforcing, and in
the context of the work on the SDGs the member states at the Congress ʻreiterate the importance ofpromoting peaceful, corruption-free and inclusive societies for sustainable development, with a focus
on a people-centred approach that provides access to justice for all and builds effective, accountable
and inclusive institutions at all levelsʼ (para 4);- there is a need to ʻensure appropriate training of officials entrusted with upholding the rule of law andthe protection of human rights and fundamental freedoms (para. 5(a));- the importance of education of children and youth for the prevention of crime and corruption and forthe promotion of a culture of lawfulness that supports the rule of law and human rights while
respecting cultural identities (para. 7);- the need for more analysis of information and practices relating to evolving forms of transnationalorganized crime in order to more effectively prevent and counter crime and strengthen the rule of law(para. 9(g));- the need for awareness-raising programmes to convey key values based on the rule of law andsupported by educational programmes (para. 10.(b)); and- the need to promote a culture of lawfulness based on the protection of human rights and the rule of law
ʻwhile respecting cultural identityʼ (para.10(c)).
- the importance of technical assistance in enhancing international cooperation, upholding the rule of law
and ensuring that crime prevention and criminal justice systems are effective, fair, humane andaccountable.

IV. IS THE DEBATE IN THE UNITED NATIONS ON THE IMPORTANCE OF THE
RULE OF LAW OVER? REFLECTIONS ON THE UNITED NATIONS DISCUSSION REGARDING A ʻCULTURE OF LAWFULNESSʼ
Since the 1990s, the rule of law appears to have come into its own in the United Nations. To judge by its
frequent appearance in resolutions and in the debate in the Security Council, the General Assembly and theEconomic and Social Council, member states are comfortable with it, and accept its importance. To use UN
jargon, the concept has become ʻagreed languageʼ.
Similarly, the extent to which the phrase is invoked in the UN work on human rights, development,
peacekeeping, and crime and justice suggests that all is well.
Such an assumption, however, would be misleading. A hint to the continuation of the conflict inperspectives can be found in the formulation used in one of the most visible aspects of the work of the United
Nations, the Sustainable Development Goals. Target 16.3 is formulated so that member states are to ʻpromote
the rule of law at the national and international levels and ensure equal access to justice for all.ʼ Given that no
definition of ʻrule of lawʼ is offered, and the target is rather vague. both those advocating that the rule of law
protects the individual against the state (the national level) and those advocating that it protects one state (orpeople) against another (the international level) can maintain their own position and priorities.
This is not merely a question of semantics. The SDGs and the UN resolutions guide the work of the UN
bodies, and are used to formulate national policy. If there is no agreement on what a key phrase refers to,consensus will continue to rest on the basis of ʻconstructive ambiguityʼ, with individual member states
continuing to formulate national policy based on their own interpretation of the concept.
This can be illustrated by recent debates within the framework of the UN Crime Programme revolving
around the concept of a ʻculture of lawfulnessʼ. This concept is not very well-known in English. Just as is thecase with the ʻrule of lawʼ as a concept, it may well be misunderstood, or at least understood in different ways
by different people.

45

RESOURCE MATERIAL SERIES No. 105

Outside of the United Nations, the ʻculture of lawfulnessʼ concept is largely used in very specificconnections, and in very specific ways:; in peace-keeping and transitory justice projects (primarily US-funded technical assistance projects in
Latin America and the Middle East), it tends to mean that society rejects violence and calls for astable rule of law;
; in the law enforcement context, it is used as a synonym for integrity on the part of law enforcement
personnel; and; in the anti-corruption context, it is used as a synonym for integrity on the part of decision-makers
both in government and in the private sector.
In distinction from these specific connections, the concept is usually associated with a general set of
attitudes and conduct in society. Roy Godson has briefly defined a culture of lawfulness as a culture that is
supportive of the rule of law.26
Within the UN Crime Programme, in turn, the term apparently first appeared in the context of theformulation of the UN Guidelines for the Prevention of Crime.27 Principle 12 of these guidelines states:ʻ12. The rule of law and those human rights which are recognized in international instruments towhich Member States are parties must be respected in all aspects of crime prevention. A culture of
lawfulness should be actively promoted in crime prevention.ʼ
The concept appeared in a somewhat different formulation at the 2010 UN Crime Congress. In para. 43 of
the Salvador Declaration, which again speaks largely about the prevention of crime, the member states notethat they ʻendeavour to take measures to promote wider education and awareness of the United Nations
standards and norms in crime prevention and criminal justice to ensure a culture of respect for the rule oflaw. In this regard, we recognize the role of civil society and the media in cooperating with States in these
efforts.ʼ
Five years later, para. 7 of the Doha Declaration from the 2015 Crime Congress echoed this language, byemphasizing that ʻeducation for all children and youth, including the eradication of illiteracy, is fundamental tothe prevention of crime and corruption and to the promotion of a culture of lawfulness that supports the ruleof law and human rights while respecting cultural identities.ʻ Para 10(c) largely repeats this point by notingthat the member states undertake to ʻpromote a culture of lawfulness based on the protection of humanrights and the rule of law while respecting cultural identity, with particular emphasis on children and youth,
seeking the support of civil society and intensifying our prevention efforts and measures targeting and using
the full potential of families, schools, religious and cultural institutions, community organizations and theprivate sector in order to address the social and economic root causes of crimeʼ.
Already during the negotiations of the Doha Declaration, some national delegations questioned the use of
the term ʻculture of lawfulnessʼ and pointed out, quite correctly, that it was not ʻagreed languageʼ in the UN,
and that there was no agreed definition of the term.
Although consensus was ultimately reached on the inclusion of the concept in these two paragraphs thatwere focused on crime prevention, heated discussion emerged subsequently at sessions of the Commission on
Crime Prevention and Criminal Justice, when some delegations sought to return to the concept in connection
Roy Godson has written extensively on the subject (e.g., A Guide to Developing a Culture of Lawfulness [2000]), citing practicalexamples from e.g. Colombia, Hong Kong and Sicily of how the fostering of a culture of lawfulness can be used to respond to
wide-spread violence and organized crime
Godsonʼs brief definition is substantially the same as that used by the US-government funded Culture of Lawfulness Project(https://www.yumpu.com/en/document/view/11251856/building-a-culture-of-lawfulness-national-strategy-information- ):“A society in which the overwhelming majority of members are convinced that the rule of law offers the best long-term
chance of securing their rights and attaining their goals. They believe that this is achievable and are committed to upholding it.”For a somewhat longer definition, see Roy Godson, A Guide to Developing a Culture of Lawfulness (2000), p. 5.
27
ECOSOC resolution 2002/13, annex.
26

46

168TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTSʼ PAPERS

with the 2020 Crime Congress, to be held in Kyoto, Japan.28
What appears to lie behind this convoluted debate is the concern of some representatives of states in the
Non-Aligned Movement that the ʻculture of lawfulnessʼ as a concept is being used to disguise efforts toreassert the focus on rule of law at the national level. The concept can be understood from two diametrically
opposed perspectives, that of the government (and practitioners), and that of the general public.
The government may understand a ʻculture of lawfulnessʼ to mean that the public respects the law ‒ andthose who represent the law, in other words the government. This would enhance the rule of law ‒ more
specifically, the law as defined by constitutionally approved bodies, whether these are a democratically
representative body (such as a parliament) or a body consisting largely of a religious, political or economic
elite.
The general public, in turn, may understand a culture of lawfulness to mean that the government (andpractitioners) should follow the law, i.e., they should respect the rule of law. From this perspective, the ʻlawʼ
could be understood more broadly to include not only national legislation, but also internationally recognizedhuman rights standards. The ʻrule of lawʼ can also be understood to require that the government adheres tobasic democratic principles.
From these two diametrically opposed perspectives, it is not a very long leap to the heated debate thathas emerged in the United Nations on the role of civil society, and of non-governmental organizations. The
debate has been particularly heated in the context of the United Nations Crime Programme.29 According to
one view, civil society activity, including that of non-governmental organizations, should be encouraged as
widely as possible. According to the second view, such non-governmental activity should be supervised inorder to ensure that the NGOs in question do not have malevolent intentions, or serve as a channel for
importing foreign (and undesirable) social and cultural values.
The first view could be described as a bottom-up, community-based approach. Local communities have awide range of concerns, among which may be the impact of crime on the local level. Through awarenessraising and advocacy, they may contribute to the detection of crime, and stimulate the authorities to respond.30
This view has a direct analogy in community policing, which holds that the police and the public are jointly
responsible for responding to crime and improving the quality of life on the community level. Community
policing programmes generally seek to encourage public initiative, recognizing that while the goals of
individual civil society groups need not necessarily be in full alignment with police goals, the work of thesegroups supplements the work of the police. In both a literal and a figurative sense, the mobilization of the
public extends the reach of the criminal justice apparatus, in a way that not only enhances the effectiveness ofcriminal justice, but also fosters the trust of the public in the operation of the criminal justice system.
The second view could be described as a top-down approach, which seeks to ensure that civil society
activity is in compliance with national law. The concerns expressed, as noted, at times refer to the potentialthat non-governmental organizations may have as channels for bringing unwanted foreign social and culturalvalues into a country. This is illustrated by the discussions held at the UN Crime Congress in 2015. As
reflected in the report of the Congress, in respect of the discussions at the workshop on public participation in
The flash point was the proposal that one of the four themes at the 2020 UN Crime Congress would essentially deal, quite
simply, with the promotion of a culture of lawfulness. What originally was envisaged as a short and snappy theme (in the view of
one delegation, it should be possible to encapsulate the theme in a single 140-character ʻtweetʼ) ultimately emerged as amouthful: ʻMultidimensional approaches by Governments to promoting the rule of law by, inter alia, providing access to justicefor all; building effective, accountable, impartial and inclusive institutions; and considering social, educational and other relevantmeasures, including fostering a culture of lawfulness while respecting cultural identities, in line with the Doha Declarationʼ.
(This would require two of the new and longer 280-character ʻtweetsʼ.) (Full disclosure: the comment regarding the ʻtweetʼ wasmade by the present author, as the representative of Finland, during the informal negotiations in Vienna on the draft resolution
on the 2020 Congress.)
29
The background to, and evolution of, this debate is described in Civil Society Engagement in the Implementation of the United
Nations Convention against Corruption. Conference Room paper submitted by the delegation of Finland, CAC/COSP/2015/
CRP.3.
30
The view is often associated with requests that governments operate in a more transparent manner, so that the public isprovided with greater access to information for example on how decisions on public matters were made, and on what grounds.
28

47

RESOURCE MATERIAL SERIES No. 105

crime prevention and criminal justice,“A number of speakers noted that the engagement of civil society organizations should take place
within the appropriate regulatory framework, in line with national legislation and in coordination with
relevant oversight bodies, for example crime prevention councils, while also ensuring thatorganizations had the skills and knowledge for their functions. One speaker noted that any civil society
activities should be framed and moderated by Governments, that non-local non-governmentalorganizations (NGOs) could propagate ideas or value systems that were foreign to some countries, andthat those NGOs should respect the economic, cultural, social and religious values of societies. Somespeakers referred to the need to build trust and transparency in that regard.”31
As expressed by one speaker at the Thirteenth United Nations Crime Congress workshop, the role of civilsociety is important if the groups are local and are based in the country, and if this role occurs in a certain
context. Such groups understand the culture, they are subject to regulation and they are moderated by thegovernment. The speaker observed that the groups should be transparent, and should respect the social andcultural values of the country in question; in the view of the speaker, this is of particular importance indeveloping countries.
It should be emphasized that this second view does not question the potential utility of the work of nongovernmental organizations. The focus is on ensuring that NGOs function in accordance with the law ‒ as thelaw is defined by the member state in question.

V. CONCLUDING REFLECTIONS
The concept of the rule of law has become part of ʻagreed languageʼ at the United Nations. The
importance of the concept has increased incrementally since the beginning of the 1990s, and is much evident
in the UN work on human rights, technical assistance, peacekeeping, and crime and justice.
The increased references to the rule of law, however, should not be understood to mean that the phrase isalways understood in the same way, and should be promoted in the same way. A disagreement has arisenover whether the rule of law should be regarded from the national or the international perspective, as binding
on governments in respect of their citizens, or as binding on states in their relations with one another and theinternational community at large.
Current practice is to paper over this disagreement by referring to ʻpromotion of the rule of law at thenational and the international levelsʼ, thus allowing both sides to say that their view has been respected(usually a sign of a successful compromise). It should also be noted that this disagreement has not significantly
affected the day-to-day work that United Nations staff are carrying out on the ground in the context of humanrights, peacekeeping and technical assistance missions, since these are based on mandates of the Security
Council, the General Assembly and ECOSOC, and are generally at the request of the countries in question.
Within the UN Crime Programme, however, the disagreement has carried over into a debate on therelation between the rule of law and a ʻculture of lawfulnessʼ, and specifically on the extent to which civilsociety (and non-governmental organizations) should be encouraged to take part. Does the rule of law entailthat views that are critical of the government in power should nonetheless be tolerated, as an expression of
freedom of speech? Should local communities be allowed greater input into determining what their priorities
are in the prevention and control (and perhaps even in the definition) of crime?
The debate in the United Nations on the rule of law shall apparently continue for years to come.

Report on Workshop 4 of the Thirteenth United Nations Congress on Crime Prevention and Criminal Justice, Doha, 12-19
April 2015. A/CONF.222/L.4/Add.1, para. 15.
3148