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1. Introduction: the Rule of Law
Normally, developing countries are identified by means of indicators such as the Pro-capita GDP (Gross Domestic Product) or the HDI (Human Development Index).
Where the first is a concrete measure given by the gross domestic production divided by the number of population, the second one counts also data referred to life expectancy at birth and their education.
After all, the fact that GDP (or the Gross National Product, that includes also the net revenues produced by the migrants abroad and then transferred to their home countries) was not a sufficient indicator for measuring the prosperity of a nation, was a clear concept yet before the introduction of the HDI: it is sufficient to recall the famous speech of Robert F. Kennedy in 1968 at the Kansas University 1.
It is also sufficient to think of countries such as Mexico, with its thousands of killed people every year 2, to understand how much other factors need to be contemplated in order to consider the development of a country.
Considering the above, for those who study the factors influencing the development of countries, one of the first thoughts goes to the rule of law.
The rule of law is defined by the Encyclopedia Britannica as “the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a non-arbitrary form of government, and more generally prevents the arbitrary use of power” 3.
In order to better understand the concept, it is worth noting that – according to the United Nations Organization –“the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights, norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency”.
Commonly, the rule of law is believed to lay on four pillars. They are the following:
a. The law applies to everyone;
b. The laws are not secret or arbitrary;
c. The laws are enforced fairly; and
d. The justice system is fair.
It is clear that the rule of law substantially is a mean to ensure social life between citizens, ensuring protection of rights through clear rules and actual enforcement.
An observer may clearly understand that the rule of law is the essential background to allow the development of a prosperity and, somehow, it is influenced from the underlying circumstances as in a sort of sympathetic relation where each party is stronger as the others become stronger.
2. The Rule of Law and Development
In the chart of the United Nations Organization, the Preamble describes four areas that are the pillars of the United Nations:
– Peace and Security.
– Human Rights.
– The Rule of Law.
– Development.
In accordance with the UN, these four pillars are all interconnected. “You cannot fully achieve one without achieving all of them”. This statement is very meaningful because it immediately links the rule of law with the development and vice versa.
The strict link between the rule of law and the development is also highlighted by the UN Declaration of the High-level Meeting on the Rule of Law, where Member States noted “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 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”. This
declaration was given in the year 2012 4.
This declaration stands a milestone in respect of the goals (well known as Sustainable Development Goals) set out in 2015 by the United Nations Organization with reference to the rule of law, since the Millennium Goals did not comprise the rule of law.
By the above-mentioned declaration, the relevance of the rule of law is highlighted and the rule of law has become one of the targets through which one of the Sustainable Development Goals which goes under the title “peace, justice and strong institutions” (16) may be achieved. This SDG no. 16 has the following mission statement “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”.
This mission should be achieved through different targets 5.
Among them, for our purposes, Target 16.3 rises, which reads: “Promote the rule of law at the national and international levels and ensure equal access to justice for all”.
It is worth noting that the United Nations indicators for assessment of the achievement of the target are the following:
– Indicator 16.3.1: Proportion of victims of violence in the previous 12 months who reported their victimization to competent authorities or other officially recognized conflict resolution mechanisms;
– Indicator 16.3.2: Un-sentenced detainees as a proportion of overall prison population;
– Indicator 16.3.3: Proportion of the population who have experienced a dispute in the past two years and who accessed a formal or informal dispute resolution mechanism, differed by type of mechanism.
The first indicator is a basic element to understand how and to which extent the law is applied and enforced. The notification of violence indeed is reported to authorities if the victims of the violence may rely on the action of the state to punish those who used the violence.
The second indicator shows how the justice is actually applied and how the citizens may be subject to the arbitrary exercise of power; while the third one is self-explanatory.
The collection of data on the above helps the nations and those organizations that support the development to identify gaps and define the course of action.
Reading the single targets that compose the 16th Goal and the indicators related to the rule of law, makes it easy to note that many of the targets
are strictly correlated with the one of our interest: at least 16.1, 16.4 and 16.5 and, more generally, all of them.
The relevance of the rule of law is also recognized by the European Union by setting up the European Rule of Law Mechanism that “provides a process for an annual dialogue between the Commission, the Council and the European Parliament together with Member States as well as national parliaments, civil society and other stakeholders on the rule of law”.
In this regard, it is meaningful to highlight the pillars on which are based the annual reports on the rule of law. These indicators show how many aspects are relevant in order to verify whether the rule of law is effective or not.
They are the following: the justice system, the anti-corruption framework, media pluralism and other institutional issues related to checks and balances.
How international cooperation may foster the rule of law in developing countries
Since the rule of law is a key feature for achieving the development, many are the organizations that operate at a global or a regional level in order to assist the developing countries in achieving a real rule of law.
Among them, a relevant role is carried out by IDLO and UNDP.
The first, is an intergovernmental organism. Its acronym stands for International Development Law Organization.
From its website, IDLO gives this description of itself: “IDLO is the only global intergovernmental organization exclusively devoted to promoting the rule of law to advance peace and sustainable development”.
It is worth noting what the rule of law means for this Institution. “The rule of law is a cultural and daily practice. It is inseparable from equality, from access to justice and education, from access to health and the protection of the most vulnerable. It is crucial for the viability of communities and nations, and for the environment that sustains them”. Considering the title of the journal where this article is published, it is lightening the nexus between the rule of law and the access to health and protection of the most vulnerable.
At an international level, there is also the UNDP that supports the real effectiveness of the rule of law.
The United Nations Development Programme is an international organization established in 1966, upon a resolution of the General Assembly of the United Nations approved in 1965.
One of the purposes of the UNDP is to strengthen the pillars on which the United Nations are based, including the rule of law. Among other tasks, the UNDP is the organism in charge for the reporting on the status of implementation of the 16.3 target (i.e. the promotion of the rule of law and ensuring equal access to justice) pursuant to the Sustainable Development Goals.
Other organizations, like the Commonwealth of Nations, promote the same values among their members. It is very interesting to examine the declaration of this Institution about the rule of law and the extension that it could have.
“The Commonwealth promotes the rule of law by providing support to member countries through knowledge and expertise sharing programmes, leading on work in law and development, implementing the Cyber Declaration and promoting democracy”.
In this regard, it is worth noting the link expressed between the rule of law and development. Furthermore, it is meaningful the mentioning of the Cyber Declaration, highlighting how much the cyberspace is getting relevance in order to ensure social and economic development.
3. Conclusions
Despite many declarations of principle on the relevance of the protection of human rights, the observance of the law and its non-discriminatory application, the substantial role that a well-functioning justice system has in ensuring the development, the actual attention of the policy makers is often leaded by other aspects and priorities, so that many of the efforts towards development often produce very limited impacts.
This is an issue not only for the developing countries, where the capacity to give growth to the economy and the wellness are affected by the absence of clear rules and applications, but is also an issue for the countries that have achieved higher levels of development 6.
Indeed, it is worth noting that also in the so-called developed countries, the succession of different wings governments in short periods causes the abrogation, in a direct or indirect manner, of the measures taken by the former government.
These changes in laws and regulations create uncertainty on the actual application of the laws and on how they will be applied in the future: these facts compromise the actual observance and compliance of the laws by the citizens, with adverse effects on the development of the country.
It is easy to note that the uncertainty on the actual application of a law has a double negative effect: on one hand, it frustrates those who observed the law, by paying a tax or complying with a duty, and then discover that who did not comply is not punished, and, on the other hand, it may constitute a brake in the observance of the law for those who hope in a possible change of it in a short period.
A fair administration of justice, a proper length of the legal proceedings and their predictability are other factors that are of relevance for the rule of law: all these factors could affect the level of development of a country and, also in this case, it is sad noting that many countries – among those that are considered developed – lack of an efficient management of justice that causes loss of chances, benefits those who act in bad faith and, last but not least, leaves room to abuses and corruption.
Considering all of the above, it appears clear the reason why the rule of law is one of the targets established by the declaration of the United Nations Assembly of 2015 to achieve a sustainable development: the underlying nexus between the rule of law and development.
