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The Hague Journal on the Rule of Law (Inaugural Issue, March 2009)
By: Carolyn Dubay,
Editorial Assistant and Reporter, International Judicial Monitor
The phrase “rule of law” has become nearly ubiquitous in any discourse about democracy, human rights and accountability. Indeed, the “rule of law” has become a commodity that can be exported, imported and offered for sale by private consultants operating independently or through government contracts and programs. At its core, however, rule of law reflects the post-Communist movement, financed primarily by Western interests, to support market-based economic development and newly crafted democratic institutions. “Rule of law” can ostensibly be formed through constitutional, legal and institutional reforms to promote public accountability and human rights. The means are fairly straightforward and technical, although frequently highly complicated and politically delicate (not to mention expensive) in implementation: (1) improve the capacity of existing government institutions to operate efficiently and without corruption, and (2) create new institutions or laws to fill the void where such capacity is lacking.
Once a realm dominated by political scientists, foreign policy gurus and diplomats, the rule of law is becoming “legalized.” Lawyers, judges, and legal academics are now doing more than advising on rule of law projects, but writing about it as an emergent, substantive doctrine with various applications domestically and internationally. Amidst the rapidly evolving theoretical and practical landscape that underlies the rule of law, it comes as no surprise that a new legal journal has been launched dedicated to scholarship pertaining to the subject. In March 2009, the Hague Institute for the Internationalisation of Law (HiiL) launched the first legal journal dedicated to issues relating to the broad notion of “rule of law.”
The editors of the Hague Journal on the Rule of Law in their introduction to the first issue make clear that rule of law stands not only at the crossroads of theory (political, legal and economic) and practice (the technical aspects of development), but in the crosshairs of a gold rush to capitalize on the multitude of opportunities to provide consulting and program management for rule of law initiatives. As the editors note in their introduction, “annual turnover in the rule of law industry exceeds a billion US dollars a year.” It is precisely because of this avalanche in the rule of law “industry” that HiiL, as well as a number of other organizations, have attempted to provide a collective forum for the sharing of not only practical experiences implementing rule of law projects, but theoretical perspectives that may inform future rule of law development and implementation. Thus, the journal has a two-fold purpose, as stated in its editorial introduction. First, it aims to provide a forum for the development of the theoretical issues relating to the application of rule law as a doctrine in international and domestic law. Second, it will explore the practical aspects of whether rule of law programs achieve their desired effect in terms of economic development, poverty alleviation, democratic reform or other development goals.
By and large, the range of articles and commentaries in the inaugural issue of the journal reflect the five “themes” of HiiL. HiiL itself is a research institute dedicated to developing practical solutions to globalized legal disputes resolved at the national level. In keeping with this theme, HiiL focuses its research and funding on several core topics: (1) the role of national high courts in applying international and foreign law; (2) the procedural problems associated with domestic prosecutions of transnational crime and emerging issues relating to international criminal law; (3) the regulation of private firms operating in a global economy; (4) the emerging notion of transnational constitutionality and the problem of how to bring democratic and legal accountability to international policy decisions; and (5) the more effective coordination of rule of law programs and substantive policy goals. It was in developing this latter theme that the idea emerged for HiiL to create the Hague Rule of Law Network (HRoLN), and later, the rule of law journal.
The inaugural issues of the Journal on the Rule of Law features more than a dozen articles from primarily legal academics from around the world and some rule of law practitioners on issues ranging from whether rule of law norms can be applied to the UN Security Council, to the efficacy of court system assessments, to the relation between domestic criminal procedures and prosecutions and international criminal proceedings. This particular issue also features a special section with articles relating to legal empowerment of the poor.
Some pieces focus on bridging the gap between the normative and practical aspects of rule of law (which the editors term “thought pieces”), such as Professor Jan Michiel Otto’s interesting piece entitled “Rule of Law, Adat Law and Sharia: 1901, 2001, and Monitoring the Next Phase.” Professor Otto sets out some potential roadmaps to reconciling Western rule of law conceptions and demands with sharia, as well as a research agenda on this important topic. Others focus on many of the practical problems associated with rule of law promotion. Of particular interest is Martin Krygier’s article “The Rule of Law and ‘The Three Integrations.” As Professor Krygier points out, in current programming, it is lawyers who dominate in terms of technical assistance, program development and many other aspects of rule of law promotion and legal reform. Understanding and integrating a multidisciplinary approach to rule of law is necessary to its future success. This theme is echoed in Professor Stephen Golub’s article, “Make Justice the Organizing Principle of the Rule of Law Field,” and James Goldston’s article, “The Rule of Law at Home and Abroad.” Goldston is the Executive Director of the Open Society Justice Initiative in New York. Professor Veronica L. Taylor’s piece, “Frequently Asked Questions About Rule of Law Assistance (And Why Better Answers Matter)” takes this issue a step further and calls for more research on how better to provide clarity and contextual knowledge for improved rule of law assistance.
Some of the more intriguing articles focus on the bridge between the development of international criminal law and the imperative to improve rule of law in the domestic context of post-conflict societies. Professor Jane Stromseth, author of Can Might Make Rights: Building the Rule of Law After Military Interventions, offers a similarly themed article in her piece entitled “Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies.” In the same vein, Mark Ellis, Executive Director of the International Bar Association, argues that the International Criminal Court will only retain its relevance if the competence of national justice sector institutions gain the capacity to prosecute and try violations of international crimes. This latter suggestion brings up the practical problem throughout rule of law programming of: how do you measure such capacity? Pim Albers, the Special Advisor for the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe, tackles this topic in “The Assessment of Court Quality: Hype or Global Trend?”
One of the more challenging aspects of rule of law theory is how to create practical applications in international law. As the articles above suggest, international law, to become subject to the rule of law, may depend on domestic rule of law reform. Professor André Nollkaemper suggests in “The Internationalized Rule of Law” that bifurcating rule of law into separate spheres for international law and domestic law may not be the way forward. More articles on how to understand the application of rule of law to international relations will build upon centuries of debate over the existence of transcendent international rules in a post-Treaty of Westphalia world and build upon the notion of state sovereignty. Indeed, we understand rule of law as something we apply to achieve accountability in the domestic context, but the debate on how to achieve democracy and accountability at the international level is a debate that has been going on since at least Grotius’ landmark work in the 1600s on the existence of universal norms. Let’s hope the rule of law community is up to the challenge and continues to submit interesting and well-researched articles for this promising new journal, which as of right now will be published twice a year.
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