Academic journal article Washington International Law Journal

The New Black on the Development Catwalk: Incorporating Rule of Law into the Sustainable Development Goals

Academic journal article Washington International Law Journal

The New Black on the Development Catwalk: Incorporating Rule of Law into the Sustainable Development Goals

Article excerpt

I. THE NEW DEVELOPMENT AGENDA: IS RULE OF LAW IN VOGUE?

If there is a catwalk where states can be said to display their taste in development philosophy and objectives, then it would be in the formulation of the post-2015 Development Agenda (the so-called Sustainable Development Goals, or "SDGs") set to replace the current Millennium Development Goals ("MDGs"). It is expected that these goals, just like the MDGs, will influence a range of developmental and other international and national policy initiatives by highlighting what is internationally agreed to be important and steering resources to those areas.1

One of the most discussed and controversial elements of the new agenda is the rule of law. While the original MDGs did include commitments on security, human rights, good governance, and the rule of law,2 they did not stipulate specific objectives for these topics. At that time, goals on governance and the rule of law were deemed too politically challenging to implement and too difficult to measure. However, they have surfaced again in the process of formulating the SDGs, resting on essentially the same intellectual conviction of their necessity and bolstered further by evidence that the MDGs were hampered by the absence of rule of law and governance-related goals.3 The emerging number of groups and institutions supporting promotion, measurement, and evaluation of rule of law efforts may also have had a role in securing a place for the rule of law in the discussion.4

However, there are no guarantees that governance and rule of law will be included in the post-2015 Development Agenda. Many topics and goals compete for attention,5 and some states actively oppose any goal with a bearing on governance, including the rule of law. 6 Clearly there are sensitive political issues to manage, particularly those related to sovereignty, distribution of resources, democracy, and human rights.7 Proponents also face challenges with formulating an acceptable definition of the rule of law,8 establishing causal evidence for its effectiveness, 9 and measuring its progress and failure.10

This article will not elaborate on these substantive challenges. Instead, it will discuss the process of their negotiation and formulation, focusing on the various UN-sponsored fora where this process occurs, how states and other key actors have framed their preferences, states' arguments for or against various options, and identify the main states in supporting each option. This article also includes an element of prognosis or speculation on what will eventually be decided with regard to the main options at hand. It will refrain, however, from an in-depth scholarly inquiry. The observations in this article are drawn from the personal recollection and reflection of one of the authors, who was present as an observer and diplomatic representative of a UN member state (Sweden) when some of these discussions took place.

II. INITIAL DESIGNS FOR THE SDGS: A COMMON THREAD

The different UN groups tasked with drafting recommendations for the post-2015 Development Agenda have all concluded that "rule of law" or other variations such as "access to justice" and "good governance" are instrumental to reaching development goals, if not intrinsically valuable of themselves. The groups charged with drafting these initial reports and proposals include the UN System Task Team on the post-2015 UN Development Agenda, the High Level Panel of Eminent Persons advising the UN Secretary General on the post-2015 Agenda, and the Open Working Group (OWG) on Sustainable Development Goals of the UN General Assembly. The following section highlights how each group has framed the rule of law in various reports and proposals.

The initial stages of drafting the SDGs began in earnest with the work of the UN System Task Team on the post-2015 UN Development Agenda. The Team consisted of over fifty experts from more than fifty UN entities and other international organizations along with linkages to academia, the media, private sector, and civil society. …

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