It’s Time to Discuss Timing

27. März 2019   ·   Michael Meyer-Resende

The discussion on rule of law support brims over with buzzwords such as holistic thinking or context analysis. However, substantive change happens in sudden and brief moments of transition, which cannot be planned out in detail. To be able to act fast in such situations, Germany should maintain networks of current and potential future players in a partner country, at times intervene forcefully, and avoid fragmenting its capabilities.

The discussion on international support of governance reforms tends to generate similar buzzwords – whether it is focused on rule of law support, election assistance, parliamentary assistance, or public administration reform. Experts call for strategy change, holistic thinking, bottom-up instead of top-down approaches, substantive support instead of formalistic change, and thorough understanding of context. Such demands are as well intentioned as they are low risk. Nobody would argue that rule of law support be fragmented, imposed top-down and ignorant of context.

Can international support establish effective rule of law? No!

But a reality check is in order. The level of ambition needs to take some account of available resources – financial, human, political, and otherwise. Can international rule of law support significantly change a society’s understanding and sense of justice? No. Can international support establish effective rule of law? No. Can international support even ensure independent courts that operate free of corruption? Hardly.

Suffice to look at countries that have received intensive and deep international rule of law support over long periods, flanked by significant powers of international actors and massive incentives for change, such as Bosnia-Hercegovina. A lot has been achieved by more than 20 years of rule of law support there, but as recently as last year the EU noted that “some progress was made regarding the judiciary but overall, reforms proceeded at a slow pace. Corruption is widespread and remains an issue of concern.”

That’s not a reason to stop supporting rule of law, but it is one to maintain a realistic view of contexts in which international support is only one of many different factors that influence developments. If we discuss international rule of law support with the assumption that it can single-handedly solve significant rule of law problems, we will always conclude that, alas, it is failing – time and again.

Timing and speed matter

Everybody accepts that rule of law support must take account of political context, but there is too little discussion of a key variable in political dynamics: Timing. There are moments in which rule of law support will more likely have the desired impact than in others. These windows of opportunity open in sudden, unforeseen political transitions, be it after revolutions or surprising election outcomes or in immediate post-conflict contexts. Major decisions are made at this point and they are made in the form of laws: new constitutions, changes of election laws, or other legislation, and they are mostly undertaken as rule-bound processes.

Such transitional moments are precious and unforeseeable. Until two months ago many experts would have assured you that Algerians are politically apathetic and will never take to the streets. The fact that such moments are not foreseeable means there cannot be long-term preparation. These special moments are seized or they pass.

Nobody knew in December 2010 that a few weeks later Tunisian decision-makers would start re-programming their country’s trajectory, trying to establish a functioning democracy based on the rule of law. These decision-makers were open to foreign support, provided it was well-informed and responding to their needs, but above-all: that it was quick. It was simply not a moment for methodological introspection or long fact-finding phases.

Sometimes long planning and preparation is not an option

Many far-reaching decisions, which were made that year, defined Tunisia’s course. Alternative decisions may have plunged the country into conflict like its neighbours. One example: in October 2011 the newly-elected Constituent Assembly decided – based on comparative input by international experts – to rule that the new constitution would need to be passed by a two-thirds majority, rather than only an absolute majority. It was a precious decision, which prevented any side in a deeply divided country from passing a constitution against the will of the other side, as happened in Egypt.

If rule of law support is situational, responsive to unforeseen moments, and ready to engage in messy political contexts – the elements which typically characterise foreign policy – it cannot follow all the ideal steps of planning and assessment, but it may achieve more than in more stable contexts where change is slow. Where long planning and preparation is not an option, it is all the more important that rule of law support is grounded in agreed principles. Such principles exist, for example, for election observation – but not in the rule of law field.

Germany’s guidelines on crisis prevention rightly stress the need to respect human rights standards. Indeed, the International Covenant on Civil and Political Rights and other international law sources contain quite detailed obligations on democracy and rule of law issues. These should frame any rule of law support. Beyond these obligations, international actors can help provide comparative expertise on options for reforms. This also means that rule of law support cannot be about exporting specific institutional or regulatory models. And yes, the political and cultural context needs to be understood and support adjusted to it. That should be common sense for any foreign engagement.

Maintain networks of current as well as potential future players

While it is hard to plan for the unforeseen, it is possible to be prepared. Apart from the ability to act fast, this has to do more with overall posture than technical steps. It is useful to maintain essential networks of current as well as potential future players in any country, whether they work in government, in the opposition, or in civil society. In Tunisia, most European governments ignored the opposition and networks of dissident legal experts during the Ben-Ali era. When change came, the US was better positioned, having never stopped working with them.

This leads to another point: In more and more countries, democracy and the rule of law are under attack, so rule of law support will sometimes need to become more defensive than constructive. In such countries, the German government should support and strengthen independent courts and human rights attorneys. Sometimes it is not about a lack of legal expertise, but rather improving the ability of legal experts to communicate effectively with the public. Where independent judges are aggressively attacked, they often respond in ‘Legalese’, a language the public does not understand. In more extreme cases, support may include legal expert communities in exile.

Timing also needs to be considered in peace-making. Legal and constitutional reforms are at the core of peace negotiations, but often they are treated as an unrelated second step that follows a peace agreement. The peace process in Myanmar, for example, would benefit from cooperation between the peace mediation and rule of law support communities. International support focused on the negotiation processes, leaving out constitutional expertise and in this way lost the opportunity to feed the conversations with content that would bring up more options for the parties to come to an agreement.  

Avoid fragmentation and leverage strengths

German policymakers are regularly promising that the country will shoulder more foreign policy responsibility. This will imply at times intervening forcefully, even though ideally rule of law support should not be top-down and imposed. For example, as a driving force behind the Minsk agreement designed to end Russia’s poorly disguised war in Eastern Ukraine, the German government had a strong interest in making sure that constitutional reforms would reflect obligations under the Minsk agreement, despite much unease in Ukraine. Such tensions between good principles of rule of law support and the realities of foreign policy cannot be wished away.

Lastly, in the interest of efficient use of resources, German rule of law support should avoid fragmentation and leverage its strengths. Germany’s credibility and deep expertise does not lie in knowledge of, say, different local, informal justice systems or religious laws, but rather in the formal justice system that every country maintains. Germany is well-regarded for having built a successful democratic, rule-of-law state and it should remain focused on its key elements, such as the separation and balance of power, checks on the executive, an independent judiciary, and institutions that deliver. In short, Germany should use its credibility and prestige to favour the democratic rule of law.

Rechtsstaatsförderung

Michael Meyer-Resende

Michael Meyer-Resende is the Executive Director of Democracy Reporting International, a Berlin-based NGO. Previously he worked as a rule of law advisor at the OSCE and with the EU.