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August 09, 2022

The Rule of Law is in Decline Globally – Do the U.S. Government Priorities Reflect the Urgency?

By Peggy Brozi, ABA ROLI MEL Intern & Salome Tsereteli-Stephens, ABA ROLI MEL Director

At the American Bar Association Rule of Law Initiative, staffers from the Monitoring, Evaluation, and Learning Division analyzed several publicly-available U.S. Government strategies and policies to examine how the rule of law factors into the federal government’s approach to global issues. In addition to discussing other important rule of law developments below, we covered the latest Joint Strategic Plan (JSP) developed by the Department of State (DoS) and U.S. Agency for International Development (USAID), conforming with the GPRAMA’s requirement that federal agencies update strategic plans every four years. The JSP informs, among other things, functional bureau strategies (FBS) developed by DoS functional bureaus. 

While the JSP and the seven (out of thirty-eight) DoS FBS documents we reviewed for the 2022-2026 performance period give some attention to the rule of law, we found that the rule of law is not a central focus of the U.S. Government’s approach to the pressing challenges of democracy, human rights, and accountable governance. We approached these documents with a certain urgency, since attacks on the rule of law have accelerated around the world in recent years. It is as important as ever to have a comprehensive approach to combat growing authoritarianism, political influence over the judiciary, endemic corruption, and the growing justice gap around the world. 

On the global stage, the United Nations (UN) 2030 Agenda for Sustainable Development includes a goal to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” To achieve that goal, the UN uses the following one of ten targets: “Promote the rule of law at the national and international levels and ensure equal access to justice for all.” Scholars and practitioners continue to offer a range of definitions for the rule of law, but the international community has largely coalesced around the United Nations’ definition, whereby 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 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. 

In Europe, Article 2 of the Treaty on European Union (TEU) includes the rule of law as a common value for Member States of the European Union (EU). The EU, in its 2020 Conditionality Regulation, created a legally enforceable definition of the rule of law:  

‘the rule of law’ refers to the Union value enshrined in Article 2 TEU. It includes the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law. The rule of law shall be understood having regard to the other Union values and principles enshrined in Article 2 TEU;  

While more limited in scope than initially proposed, the Conditionality Regulation (which went into force on January 1, 2021) allows the EU to cut some member funding when a Member State’s breach of rule of law principles affects or seriously risks affecting the “sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way.” EU Member States Poland and Hungary challenged the Conditionality Regulation in the Court of Justice of the European Union (CJEU), seeking to annul it as contrary to EU law. On February 16, 2022, the CJEU issued landmark decisions rejecting Poland’s and Hungary’s challenges to the Conditionality Regulation. According to the CJEU in its press release summarizing the judgments, “the regulation is intended to protect the Union budget from effects resulting, in a sufficiently direct way, from breaches of the principles of the rule of law and not to penalize those breaches as such.” Still, the CJEU’s recent judgments mark a positive development in how the EU tackles rule of law challenges among its Member States. It is also important to remember that these judgments come amongst a backdrop of 14 of 20 EU countries’ rule of law scores falling, according to the World Justice Project’s (WJP) Rule of Law Index. 

Shifting to the United States, U.S. Government agencies strategize how to address issues including, but not limited to, rule of law concerns. The DoS & USAID JSP mentions the rule of law as one of the factors for success in achieving global peace and prosperity, and affirms emphasis on the rule of law, especially under the security cooperation goal. However, it does not present the rule of law as a specific objective, strategy, or cornerstone that would assure success in countering the multitude of challenges laid out in the document. 

Similarly, no DoS bureau in the seven FBS strategies we read dedicated a goal solely to advancing the rule of law. Here are the seven FBS strategies in reference: 

Each FBS contains between two and four goals, in addition to cross-cutting management goals. While some of the strategic goals and objectives discuss the rule of law (and other concepts that strengthen the rule of law), “the work of rule of law reform is simply too broad for one agency or one government,” as stated in the USAID Rule of Law Policy (discussed below). ABA ROLI hoped to see a more targeted public commitment to the rule of law in the DoS & USAID JSP and DoS FBS documents. 

Toward the close of 2021, the U.S. Government launched an important effort: the Summit for Democracy. The Summit brought together countries to discuss how, collectively, they might address pressing challenges of our time, and make specific commitments to strengthening democracy during the subsequent Year of Action. Indeed, many commitments were made, but as some of the critics point out, without actionable strategy and appropriate scaffolding, these statements may remain aspirational. 

In January 2022, USAID issued a draft of the Rule of Law Policy (hereinafter Policy) for public comment, an important document for organizations like ABA ROLI. In the Policy, USAID formally adopts the UN definition of the rule of law and shifts to People Centered Justice (PCJ) as the core approach to its programming in advancing the rule of law. The Policy also provides a theory of change for PCJ, where USAID takes a comprehensive look at the justice system with people at its center and pursues a vision with rule of law at its heart. At the same time, institutional support remains important. 

Here is USAID’s representation of its theory of change:

The People-Centered Justice Theory of Change

 we put people at the center of the justice system, and 
IF we transform justice institutions and services to be more data-driven, user-friendly, solution-focused, and prevention-oriented, and 
IF we empower people to know, use, and shape then law in their daily lives,
THEN we will improve outcomes that enhance the legitimacy of and trust in the rule of law.

In addition to explaining USAID’s shift to PCJ, the Policy also dispels a common myth that rule of law programming is only for lawyers, a view shared and emphasized by ABA ROLI as well. As the Policy notes, there is no single way to improve the rule of law – solutions require a multidisciplinary approach not limited to lawyers. USAID commits to involving various stakeholders in its rule of law efforts and continuing to cooperate and coordinate with the interagency, such as DoS. 

On June 28, Deputy Associate Executive Director of the ABA's Center for Global Programs Scott Carlson joined the USAID DRG conference panel discussing the Policy, where he highlighted ABA ROLI’s strong support of the new Policy. Mr. Carlson emphasized that rule of law is fundamental to sustainable development, explaining “if a recipient government cannot provide rule of law, the assistance in every single sector will continue, in my opinion, to be really more akin to humanitarian relief efforts, not true development. Discussing sustainable development in the absence of rule of law, to sound a little provocative and perhaps harsh, I think is at best delusional and at worst dishonest.” Mr. Carlson also urged USAID to “proudly make the case to Congress for more dedicated rule of law funding; rule of law needs to emerge from the shadows as a core emphasis in its own right.” For more of Mr. Carlson’s insights on the Policy, you can read this ABA ROLI blog post by Eman Elshrafi, Intern for ABA ROLI's LAC Division.

Further, the Policy brings together the evidence-focus that permeates the U.S. Government learning agendas across DoS and USAID. With this focus, data is seen as an instrument of decision-making for the benefit of individuals whom these systems are supposed to serve. ABA ROLI has had a long history of studying local context in developing solutions to the most pressing rule of law challenges – through research and assessments, and thoughtful monitoring, evaluation, and learning. Of course, new challenges require new solutions and ABA ROLI partners with academics and practitioners to build on best existing knowledge to apply it to practice. 

As the world grapples with one crisis after another in various parts of the planet, we cannot let our guard down and allow our focus to shift. Over the past year, the WJP calculated that approximately 74% of countries covered by the WJP’s Rule of Law Index experienced declines in rule of law performance and nearly 26% improved. The countries with declines represent almost 85% of the world’s population, according to the WJP. Meanwhile, donor investment in justice has decreased by 40% since 2015. The promise of a better world is built on the premise that systems and institutions must be trustworthy, serve their constituents, and be accountable to them. The rule of law is foundational in achieving this and deserves greater emphasis and resources when strategizing responses to global challenges.

The statements and analysis expressed in this paper are solely those of the authors. The Board of Governors of the American Bar Association (ABA) has neither reviewed nor sanctioned its contents. Accordingly, the views expressed herein should not be construed as representing the position or policy of the ABA. Furthermore, nothing contained in this paper is to be considered rendering legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel.