Informal Discussion on

Linkages between the rule of law, democracy

and sustainable development
Thursday, 19 April, from 13.15 to 14.45
at the Permanent Mission of Italy to the UN
885 Second Avenue (One Dag Hammarskjold Plaza), 49th floor
1. Objective
In view of the opening of intergovernmental consultations on the outcome of the High-Level
Meeting on The rule of law at the national and international levels convened by the General
Assembly on 24 September 2012, the informal discussion aims at exploring the relevance of
democracy and sustainable development concerns to the debate on advancing and implementing
the rule of law agenda.
2. Background
Both the UN General Assembly and the Security Council have addressed the importance of the rule
of law for the UN and its Member States. The third annual report of the S-G on Strengthening and
coordinating United Nations rule of law activities1 has informed the UN GA deliberations
concluded by the adoption of resolution 66/102 in December 2011 2. The S-Gs report lighted
advances in streamlining policy and guidance, supporting coherent action in countries and
expanding partnerships with a view to placing national perspectives at the centre of rule of law
assistance; however, it also noted that the UN continues to face challenges in providing effective
rule of law assistance.3
The Security Council debate of 19 January 2012 on The promotion and strengthening of the rule
of law in the maintenance of international peace and security addressed the rule of law
dimension from the angle of its contribution to peaceful coexistence and the prevention of armed

Strengthening and coordinating United Nations rule of law activities, A/66/133, 8 August 2011.
Resolution 66/102 entitled The rule of law at the national and international levels, 9 December
2011.
3
Strengthening and coordinating United Nations rule of law activities, A/66/133, 8 August 2011,
paragraphs 3 and 4.
2

conflict.4 The SC debate focused on issues such as enforcing rights for women, support for gender
equality, promotion of accountability of member states in upholding the rule of law and
reinforcing norms, as well as building justice and security institutions.
In March 2012 the S-G issued a report on Delivering justice: programme of action to strengthen
the rule of law at the national and international levels5 in preparation for the September HighLevel Meeting.
3. The Rule of Law and Democracy
When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn
between rule by law, whereby law is an instrument of government and government is
considered above the law, and rule of law, which implies that everyone in society is bound by
the law, including the government. Essentially, constitutional limits on power, a key feature of
democracy, requires adherence to the rule of law.
Another key dimension of the rule of law-democracy nexus is the recognition that building
democracy and the rule of law may be convergent and mutually reinforcing processes whenever
the rule of law is defined in broad, ends-based terms, rather than in narrow, formal and exclusively
procedural terms. A common feature of both democracy and the rule of law is that a purely
institutional approach does not say anything about actual outcomes. The nexus is strong whenever
the rule of law is conceived in its relationship with substantive outcomes, like justice and
democratic governance. This distinction is often characterized by resorting to the opposition
between thin and thick conceptions of the rule of law.
Formal and substantive notions are certainly related, and some scholars argue against a thin/thick
dichotomy, pointing at the fact that in situations of social and political change both formal and
substantive features of the rule of law may be thinner or thicker. However, in general terms, a
focus on thin definitions places emphasis on the procedures through which rules are formulated
and applied, whereas thick definitions aim at protecting rights and frame it within the broader
human development discourse.
A thick definition defines positively the rule of law as incorporating such elements as a strong
constitution, an effective electoral system, a commitment to gender equality, laws for the
protection of minorities and other vulnerable groups, and a strong civil society. In this perspective,
the rule of law, defended by an independent judiciary, plays a crucial function by ensuring that
civil and political rights and civil liberties are safe and the equality and dignity of all citizens are not
at risk. It also helps protect the effective performance of the various agencies of electoral, societal
and horizontal accountability from potential obstructions and intimidation of powerful state
actors. In this framework, the principle of government responsiveness to the interests and needs
of the greatest number of citizens is strictly associated with the capacity of democratic institutions
and processes to bolsters the dimensions of rights, equality, and accountability.

Statement by the President of the Security Council, S/PRST/2012/1, 19 January 2012.

Delivering justice: programme of action to strengthen the rule of law at the national and
international levels, A/66/749, 16 March 2012.
5

In 2004 the Secretary-General stressed that for the UN 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 as well 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.6 Referring to this definition, in his 2009 Guidance Note on
Democracy, the Secretary-General also added that the UN provides expertise and support to the
development of legislation and the strengthening of, in particular, legislative, executive and
judicial institutions under such principles to ensure that they have the capacity, resources and
necessary independence to play their respective roles.7
Over the years the UN has fostered the rule of law at the international level, through the
consolidation and development of an international framework of norms and standards, the
establishment of international and hybrid courts and tribunals and non-judicial mechanisms. It has
refined its framework for engagement in the rule of law sector at the national level, through the
provision of assistance to constitution-making, the national legal framework, institutions of justice,
governance, security and human rights, transitional justice, and strengthening of civil society.8
The Secretary-Generals 2008 Guidance Note on the UN Approach to Rule of Law Assistance
provided overarching principles and a framework for guiding UN rule of law activities at the
national level. Furthermore, his 2009 Guidance Note on UN Assistance to Constitution-making
Processes outlined the components of a constitution-making process with recognition of the
importance of constitution-making to democratic transitions.
A practical example of the importance of the rule of law for democracy building is the fact that the
rule of law is a fundamental principle embraced in most modern democracies. Constitutions
contain the fundamental and, most often, supreme law of the state and the rule of law dictates
the enforcement of those principles above all other laws. Constitutions also preserve fundamental
principles and values by making the process of amendment burdensome. Some constitutions
ensure the permanence of certain principles and values by prohibiting amendments. The judiciary,
which applies the law to individual cases, acts as the guardian of the rule of law. Thus an
independent and properly functioning judiciary is a prerequisite for the rule of law, which requires
a just legal system, the right to a fair hearing and access to justice.9
Another example is provided by the role played by electoral justice in ensuring that every action,
procedure and decision related to the electoral process is in line with the law (the constitution,
6

The rule of law and transitional justice in conflict and post-conflict societies, 23 August 2004,
S/2004/616, paragraph 6, recalled in Delivering justice: programme of action to strengthen the
rule of law at the national and international levels, 16 March 2012, A/66/749, paragraph2.
7
See the Guidance Note of the Secretary-General on Democracy at:
http://www.un.org/democracyfund/Docs/UNSG%20Guidance%20Note%20on%20Democracy.pdf
8
Strengthening and coordinating United Nations rule of law activities, A/66/133, 8 August 2011.
9
International IDEA, A Practical Guide to Constitution Building: Principles and Cross-cutting
Themes, Stockholm 2012, pages 17-18.
3

statute law, international instruments or treaties and all other provisions in force in a country),
and that the enjoyment of electoral rights is protected and restored, giving people who believe
their electoral rights have been violated the ability to make a complaint, get a hearing and receive
an adjudication. An electoral justice system is a key instrument of the rule of law and the ultimate
guarantee of compliance with the democratic principle of holding free, fair and genuine
elections.10
4. The Rule of Law and Sustainable Development
Many facets of the rule of law form essential components of sustainable development. The rule of
law provides the normative and institutional framework by which to enable the equitable
realization of basic rights and fair access to benefits accruing from the resources available to the
country and its society. It also helps to ensure stability, clarity, precision, predictability and
transparency in public and private law processes including in contractual, commercial and foreign
direct investment sectors. These processes, if they operate with consistency, fairness and on a
non-discriminatory basis, help to spur growth, create wealth and reduce rent-seeking and
corruption. As the Secretary-General pointed out in his recent Report on Delivering Justice:
Environmental degradation, rapid urbanization, conflict, fragility, severe income inequalities and
exclusion of vulnerable groups constitute major challenges to human development and security.
Robust principles are needed to underpin the management of our future. The rule of law is a core
principle of governance that ensures justice and fairness, values which are essential to our
humanity.11 This approach echoes the UN General Assemblys unequivocal position on the
interconnection between rule of law and sustainable development: The advancement of the rule
of law at the national and international levels is essential for the realization of sustained economic
growth, sustainable development, the eradication of poverty and hunger and the protection of all
human rights and fundamental freedoms.12
The international community has affirmed on many occasions that strengthening the rule of law
and bringing the law closer to the people are effective tools by which to promote economic and
social advancement in the global efforts to achieve the Millennium Development Goals (MDGs)
and to meet other pressing global challenges. Consider for example climate change - a
phenomenon that undermines attainment of all eight of the MDGs. The effectiveness of the
international response to climate change, as well as national climate change strategies, will
ultimately depend upon the legal tools available in developing countries to ensure their
implementation. An enabling legal environment, underpinned by good governance and respect for
the rule of law, is a prerequisite for climate change adaptation, mitigation and for realizing the
benefits of the international climate regime. Or consider global health. Well developed rule of law
frameworks are crucial to meet the health challenges embodied in the MDGs. These areas have to
be regulated by clear and predictable statutes and regulations relating to public health, intellectual
property, food and drugs, labor standards, equal access to jobs and social security. In order to
respond effectively to contemporary development challenges, Governments need to strengthen
10

International IDEA, Electoral Justice: The International IDEA Handbook, Stockholm 2010, page 9.
Delivering justice: programme of action to strengthen the rule of law at the national and
international levels, 16 March 2012, A/66/749, paragraph 1.
12
A/RES/66/102 of 13 January 2012.
11

their regulatory systems with strong, yet adaptable legal frameworks that take account of all
sectors of society and conform fully with internationally accepted human rights standards.
Another critical element of rule of law approaches to development has proven to be the need to
empower traditionally marginalized social groups, including women, in political decision-making as
well as in the marketplace, in particular, with respect to more equitable access to loans and credit,
access to the techniques and benefits of green economy, recognition of land titles, uses of
traditional knowledge for example with regard to traditional medicines, intellectual property and
biodiversity, equal access to employment, political participation, as well as unimpeded access to
remedies in case of the violation of rights. Development is less likely to take root in a sustainable
fashion unless reforms are owned by civil society and supported by NGOs, and in this connection,
the rule of law forms a pivotal point of reference for the empowerment and participation of
marginalized groups. Empowering people to use law and legal processes strengthens the capacity
of local communities to guarantee access to justice on a fair and non-discriminatory basis. It also
allows individuals and groups to engage more equitably with justice systems rooted in non-state,
informal and traditional fora, especially in transitional and post-conflict situations, as the S-G
pointed out in his October 2011 report on The rule of law and transitional justice in conflict and
post-conflict societies.13 Considering that non-state systems, including indigenous, customary and
religious legal orders, alternative dispute resolution mechanisms and popular justice fora, figure as
important or even principal avenues through which the poor can access justice, engagement with
such systems to bring them into closer line with international norms and standards becomes key
to strengthening the rule of law in development contexts. Indeed, taking into account that oneand-a-half billion people live in areas affected by fragility, conflict, or large-scale, organized
criminal violence and that no low-income fragile or conflict-affected country has yet to achieve a
single United Nations Millennium Development Goal,14 one can appreciate the urgency of
building or strengthening legitimate institutions and governance to provide security, justice, better
protection of basic human rights and better development overall.
Finally, strengthening the rule of law at national and international levels also means being ready to
commit to defined goals and targets, measure the impact of policies and interventions on the basis
of tailor-made indicators and learn from practice. This is essential to ensure aid effectiveness,
transparency and accountability as well as the adoption of rule of law strategies that are best
suited to promote development, in line with the Busan process as put forward in the Busan
Partnership for Effective Development Co-operation.
5. Linking the rule of law, democracy and sustainable development: Main challenges and issues
for consideration
For both democracy and the rule of law to deliver on development, it is necessary to discuss the
linkages among UN work on the rule of law, democracy building and sustainable development.
Such linkages are increasingly emerging in key areas, such as:
13

The rule of law and transitional justice in conflict and post-conflict societies, 12 October 2011,
S/2011/634, paragraph 39.
14
The World Development Report 2011: Conflict, Security, and Development The World Bank,
Washington D.C. 2011.
5

Constitution-making: How do constitutions promote the rule of law? How can new
constitutions reflect development objectives and enable the realization of fundamental
rights?
Institution-building: What are the challenges of building democratic and rule of law
institutions that are conducive of sustainable and inclusive development?
Electoral justice: Do electoral justice mechanisms play a decisive role in ensuring the
stability of the political system and adherence to the legal framework, thus contributing
also to the consolidation of democratic governance?
Engagement with non-state and informal legal and justice systems: How can informal
justice systems assist in realizing social and economic rights and promote inclusive
development? To what extent should the international community engage with such
systems as part of a broader rule of law debate / quest for definition?
Political dialogue for peacebuilding and development in post-conflict situations: Can
peace-builders support sustainable development through the adoption and strengthening
of rule of law frameworks, and a better understanding of the complex linkages between
democracy assistance and peacebuilding in post-conflict situations?
Gender equality: How could political institutions better deliver on commitments to gender
equality, increase political participation and representation of women, and realize
womens economic and social rights?
Democratic/Local ownership: Functioning political processes are vital for the development
agenda but, unwillingly, aid processes sometimes undermine democratic processes, rather
than strengthen them. How can the aid agenda change this situation, by supporting a
healthy political landscape and bolstering development? How can the international
community support rule of law frameworks conducive to genuine local ownership and
effectiveness of development aid and interventions, in line with the Busan process?
The empowerment of civil society, inclusive development and engaging with non-state
actors: How could non-state actors, including civil society organizations, participate more
meaningfully and effectively in processes aimed at strengthening the rule of law?
MDGs post 2015: How can international human rights law, combined with democratic
principles and practices such as electoral processes, political parties and contestation, or
democratic civil society, directly and indirectly contribute to gains in development? What
are the challenges for rule of law integration in post-MDGs debates?
Public-private partnership and the role of the private sector: How can rule of law support
development through engagement with and integration of private and corporate sectors in
the development discourse?

How can the September High-Level Meeting on the Rule of Law be geared to advance both
democratic governance and sustainable development, as well as their linkages in key areas as
outlined above?