Ronald Janse

Introduction — A New Journal!

The rule of law has become a global ideal. It is supported by people, governments and organizations around the world. It is widely believed to be the cornerstone of national political and legal systems. It is also increasingly thought of as a fundamental principle of international relations and international law. In the 2005 World Summit Outcome document, the heads of states and government of the world agreed to recognize ‘the need for universal adherence to and implementation of the rule of law at both the national and international levels.’ A year later, the United Nations General Assembly adopted a resolution on ‘the rule of law at the national and international levels.’ Few, if any, ideals have achieved such widespread acceptance and broad application.

The UNGA Resolutions on the Rule of Law at the National and International Levels, 2006-Post 2015

For almost a decade, the un General Assembly (unga) has adopted annual resolutions on ‘the rule of law at the national and international levels.’ Moreover, the unga has held a High-level Meeting in September 2012 where Heads of State and Government discussed the topic for the first time ever and issued a declaration. This paper assesses the results. Its core question is whether unga commitment to rule of law at the national level is merely a vague aspiration or whether it has concrete normative content. The main conclusions are that: (a) the 9 annual resolutions have so far articulated neither a clear concept of rule of law nor a set of requirements or a minimum standard which States should respect in their legal systems; (b) the 2012 High-level Declaration articulates a thin conception of rule of law, i.e., stresses formal legality; (c) that the Declaration largely confirms Aust and Nolte’s analysis of lex lata with respect to the rule of law at the national level, but that it also departs from it somewhat; (d) that the unga’s commitment to rule of law is compatible with different political systems and normative outlooks. In 2015, the unga will again discuss rule of law in the context of renewal of the Millennium Development Goals (mdgs), and it seems likely after the Secretary General’s Road to Dignity by 2030 that rule of law is an important aspect of the new Sustainable Development Goals (sdgs). The analysis in this paper enables observers to assess whether the unga takes its commitment to the rule of law to a new level.

Entering the Forbidden Zone: the World Bank, Criminal Justice Reform and the Political Prohibition Clause

Over the past 7 years or so, the World Bank has expanded its rule of law agenda by moving into the area of criminal justice reform. This turn to criminal justice reform, however obvious it may be from a development perspective, was — and still is — a controversial step. This is because the World Bank, like most other multilateral development banks, is prohibited by its basic legal document, the Articles of Agreement, from interfering in the political affairs of its members. It must make its decisions on the basis of economic considerations only. Following the 2011 World Development Report, which made the case for World Bank involvement in criminal justice, in early 2012 the Bank’s legal vice presidency released the Legal Note on Bank Involvement in the Criminal Justice Sector and a Staff Guidance Note: World Bank Support for Criminal Justice Activities. This paper shows how the Legal Note and the Guidance Note, by offering new interpretations of the World Bank’s mandate and of the criminal justice sector, seek to incorporate criminal justice reform within the World Bank’s governance agenda. It argues that the interpretation offered by these documents is unconvincing in addressing the two components of the political prohibition clause, being the injunction to decide on the basis of economic considerations only and the prohibition on political interference. As a result, the Legal Note does not entirely succeed in its mission to provide ‘…a general legal framework for determining which interventions by the Bank in this sector would fall within the World Bank’s mandate under its Articles of Agreement’. This paper concludes by suggesting that some of the loose ends in the Legal Note and the Guidance Note can be explained by the purpose of this new legal interpretation of the mandate, which is not so much to provide a consistent legal argument, but rather — and above all — to play [to] constituencies with different interests and maintain the myth of a common understanding of the World Bank’s mandate and mission.