The solid multilateral basis for Biden to promote the rule of law
By: Tom Mcinerney
Tags: Rule Of Law, United Nations, Sdgs, Multilateralism

Workers laying the foundation for the United Nations headquarters. Copyright held or managed by the New York Public Library

Strengthening the rule of law around the world should surely rank as an important priority for the incoming Biden Administration. To be fair, given the events of the past four years, the United States may seem an unlikely champion of the cause. Yet, the United States has a substantial legacy supporting the rule of law at home and abroad. If the US can take credible steps to address its rule of law regression under President Trump, it can make significant positive contributions towards rehabilitating the notion on the international stage to advance policy aims of human rights, democratization, development, sustainability, and cultivating stable and fair investment climates.

Although not widely recognized, a crucial basis for renewing and reinforcing fundamental values such as human rights and democracy on the international stage already exists. It is grounded in commitments to rule of law made in the United Nations with substantial US backing over the past two decades.

While some may question the hypocrisy of the US championing rule of law at the international level, prior to the Trump Administration, the United States played a key role in situating the rule of law firmly at the center of the multilateral agenda. These efforts, initiated by the George W Bush Administration and continued under the Obama Administration, were particularly noteworthy because they met with the acceptance of all countries, not least China and Russia. If President-elect Biden can take decisive and meaningful action to address the manifold domestic institutional ruptures caused by Donald Trump, the US could reclaim its position as an influential — indeed essential — voice on rule of law internationally.

Rather than a sign of weakness, a credible effort by the United States to examine its rule of law lapses since 2017 could be viewed not only as evidence of sincerity but also as an example for the rest of the world. The violations of rule of law endured under the Trump presidency are all too common in the history of republican government. America’s founders were keenly aware of democracy’s shortcomings and potential for abuse. Peoples around the world who have suffered and, in some cases, overcome, bad governance can surely understand and relate to the breakdowns witnessed in America.

Aside from failures in the federal government, an additional blot on the US rule of law record is its persistent system of racial injustice starkly demonstrated in the criminal justice system. The grotesque killing of George Floyd by Minneapolis police last summer was witnessed worldwide. Without thoroughgoing and effective efforts to stamp out such racial abuse permanently, the US ability to speak with authority on rule of law will remain fatally compromised.

Given the amount of attention to rule of law breaches in the US during the Trump presidency, few will be ignorant of the challenges the country currently faces. Yet an effective response to these failings can make strides towards demonstrating the resilience of American institutions while serving as an example and even grounds for hope among citizens around the world living without the rule of law.

Despite the dismal record of the past four years, the US has historically led on important rule of law developments internationally. From the Freedom of Information Act to lobbying regulation to anti-fraud laws, innovative legal and governance arrangements developed in America have long served as models for countries around the world. Standards of judicial independence and integrity are widely respected and still seen as hallmarks of the US commitment to rule of law.

Commitment to these values and historical experience in improving rule of law domestically have animated US efforts to support rule of law in the agenda of the UN. The rich body of principles and international commitments to the rule of law developed in the UN have never been repudiated by the organization or its members and remain valid.

UN efforts to advance the rule of law began in earnest under former Secretary-General Kofi Annan. In the ground-breaking 2004 report, “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies”, the UN took important steps towards building a common understanding of the meaning of the rule of law, brought rule of law into the mainstream of UN debates, and further institutionalized multilateral commitment to the ideal.

This work coincided with the release of the report by the UN’s High-level Panel on Threats, Challenges, and Change in 2004. In outlining an approach to collective international security, the report emphasized the importance of rule of law in establishing effective peacebuilding and called for implementation of key treaties such as the UN Convention on Corruption and UN Convention on Transnational Organized Crime.

Secretary General Annan expanded upon these themes in his “In Larger Freedom” report for the 2005 World Summit. Echoing Annan’s words, in the conference Outcome Document, all UN members recommitted to “actively promote human rights, rule of law and democracy” while recognizing these ideals “to be interlinked and mutually reinforcing and … part of the indivisible core values and principles of the United Nations.”

These undertakings were reiterated again in 2012 by the heads of state, governments, and delegations in the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels. In this document, UN members recognized that “respect for rule of law applies to all states and should guide all UN activities” and reaffirmed the interlinked and mutual reinforcing nature of rule of law and democracy. More specifically, the declaration highlighted core rule of law values including the importance of judicial independence, impartiality, and rights of equal access to justice for all.

These principles were given practical application in the 2030 Sustainable Development Agenda. While running throughout all of the Sustainable Development Goals (SDG) and targets, rule of law was explicitly prioritized in SDG 16, “Peaceful, Just, and Inclusive Societies”. Following these commitments, a flurry of international efforts to support SDG 16 has emerged among a diverse group of governments and civil society actors. The global Black Lives Matter movement has breathed additional life and new urgency to these efforts, while directing greater attention to the centrality of racial justice in rule of law reform.

Although recent events provide many reasons for concern, there can be little doubt that rule of law has become an internationally recognized value. The commitments to rule of law within the UN over the past 20 years show that there is a substantial multilateral basis — forged through consensus among all UN members — to advance values of democracy, human rights, and rule of law which President-elect Biden supports.

Rather than building from scratch, the new administration needs to revitalize these multilateral commitments, while undertaking real reforms at home that demonstrate the sincerity of US objectives. Decisive action and collaboration with like-minded states through multilateral institutions can help ensure that, at the international level as domestically, the principles behind the rule of law can ultimately be proven to outlive the influence of one man or administration.

Thomas McInerney is Executive Director of the Rule of Law for Development Program at Loyola University Chicago School of Law. An international lawyer and strategist, he has advised governments, international organizations, and NGOs on international law and rule of law reform for 20 years.