Law and Sustainable Development Goals

Indicators for targets under the Sustainable Development Goals (SDGs) were recently expanded on in Mexico. There will be specific indicators for each target. It is worth taking a moment to consider what the indicators for Target 16.3 will mean for the broader concept of the ‘rule of law’, its definition and rapidly expanding promotion.

Goal 16 calls for government, the private sector and civil society 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.’ Within this goal there are 10 targets, including 16.3 which aims to ‘promote the rule of law at the national and international levels and ensure equal access to justice for all.’ There it is, the magical phrase: rule of law.

So far so good. But which ‘rule of law’ are we talking about? Indicators will set the bar for evaluation and comparison and they will inevitably frame the direction of projects and funding. As always, there is a danger that the measurement will overshadow the goal. Two proposed indicators are currently assigned to target 16.3:

Proposed Indicator 1: Unsentenced detainees as percentage of overall prison population.

Proposed Indicator 2: Percentage of victims of violence in the previous 12 months who reported their victimization to competent authorities or other officially recognized conflict resolution mechanisms (also called crime reporting rate)

Proposed indicator 1 is currently ‘green’ indicating tentative agreement. Proposed indicator 2 is officially ‘grey’ and may be modified before the framework is finalized although this appears unlikely. These indicators reflect an interpretation and prioritization of elements within the rule of law and access to justice concepts that evolved over many years of consultation and negotiation which was partially based on work undertaken by the Virtual Network.

Various interpretations of the ‘rule of law’ carry the promise of political emancipation as well as the risk of creating or assisting a regulatory framework that supports established powerful actors. It is a legal and philosophical battleground and measurement systems inevitably take sides: ‘law’ is not a safe and neutral engagement.

Alternative Interpretations

These indicators will inevitably influence the debate regarding rule of law definition and purpose. Alternative indicators proposed for 16.3 included assessing the physical distance to affordable and effective legal services, accessibility of dispute settlement mechanisms, user-orientated opinions regarding ‘fairness’ of justice processes and availability of counsel for criminal defendants, the financial threshold at which legal aid is provided, access to legal information and use of the World Justice Project’s Rule of Law Index. Several NGOs insisted that the indicators for 16.3 should encompass in some way the ratification and implementation of human rights treaties such as ICCPR, ICESCR, CEDAW, and CERD as a demonstration of coherence between sustainable development, the rule of law and human rights.

The clearest critique in the latest consultation came from the Commonwealth Secretariat:

“The rule of law can be characterized through three key elements – legal frameworks, institutional capacity, and legal empowerment . . . It is extremely challenging for just two global indicators to capture these elements and dimensions . . . the rule of law and access to justice concerns areas such as investment, commercial, corporate, land, and family law.”

There has been significant support for one alternative indicator that attempts to measure a wide range of situations by assessing the ‘proportion of those who have experienced a dispute in the past 12 months and who have accessed a fair formal, informal, alternative or traditional dispute mechanism who feel the process was just’.

Near universal agreement regarding 16.3 as a target has clashed with near universal disagreement and some ambivalence regarding the indicators. At this level of specificity common ground is scarce, reflecting the broader rule of law debate. Part of the concept’s appeal is surely due to it being vague and open to interpretation.

A Criminal Rule of Law?

The draft indicators support a rule of law that is devoid of individual rights or concepts of social justice. They relate solely to criminal justice. Frequently, dialogue around criminal justice systems presume the state as an unproblematic vehicle of sovereignty and law.

Prioritizing the criminal legal system in this way supports codification of prevailing practice and power structures along similar lines to blind prioritization of contract and property rights within legal reform programs. The focus is on maintenance of the status quo and security rather than public discourse and participation. The origins, focus and direction of the criminal system are not questioned and the central authority is inherently upheld and supported, regardless of how they got there and what the public might think about it.

Although most would accept that criminal justice forms part of the rule of law, it is not the only element, even according to the United Nations. We could say that the rule of law has emergent properties; it does not exist when cut into pieces.

The Path Ahead

The political, conceptual, and empirical work required to construct effective indicators cannot be entirely aggregated at a global level. As a contributing means to development, the rule of law should focus on local empowerment for participatory political decision making, while respecting human rights. Measurement and indicator structures must be flexible and localized. The intended regional and local indicator frameworks, where they materialize, will assist this purpose.

Of course these complaints are offset to some extent by other aspects of the broader SDG indicator framework, which should be assessed as a whole. And the overall political achievement of the SDGs should not be maligned. But it is worth considering what is being put forward here as ‘rule of law’ by an organization with the normative weight of the United Nations. Poorly directed indicators could result in ambivalent progress at best and perverse reporting incentives at worst. The indicator framework will be in place for 15 years and will influence the fundamental conceptualization of the ‘rule of law’. What has been left out should be noted.

 

Image courtesy of Flickr. Originally published by S&S on April 11, 2016.

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