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:
- Secretary’s Office of Global Women’s Issues
- Bureau of Democracy, Human Rights and Labor
- Office of International Religious Freedom
- Office to Monitor and Combat Trafficking in Persons
- Bureau of International Narcotics and Law Enforcement Affairs
- Bureau of Counterterrorism
- Bureau of Conflict and Stabilization Operations
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
IF 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.