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ABA Symposium Works to Give Practical Meaning to the International Rule of Law

Posted Jan 10, 2006 11:32 AM CDT
By James Podgers

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As you may have noticed, injustice did not disappear from the world following the International Rule of Law Symposium that was convened by the ABA in November.

Nor did the symposium participants expect that it would.

None of the symposium participants—an impressive invited list of leaders from the legal profession, government and oth­er fields that numbered some 400—expected the two-day gathering in Washington, D.C., to produce any lightning strikes that would break down the barriers to cultivating rule of law initiatives around the world.

“This is much too important for lawyers, let alone American lawyers,” to tackle alone, said R. William Ide III of Atlanta. “This involves all of us.” Ide chairs the ABA’s Central European and Eurasian Law Initiative, known as CEELI, which hosted the symposium.

“Rule of law discussions often lead to the simplistic conclusion that you can have quick-fix solutions,” said William Easterly, an economics professor at New York University who participated in one of the symposium panels. Instead, he said, “you need small steps that build on homegrown indigenous institutions.” But Ide and other participants expressed confidence that the symposium was a step in the right direction.

In an impromptu action at the close of the symposium, Hilario G. Davide Jr., chief justice of the Philippine Su­preme Court, stood up and moved that the conclave adopt what he called “the Washington declaration launching the rule of law movement.” It was a symbolic gesture, to be sure, but it did express a conviction—articulated by other participants, as well—that the dialogue that started in Washington should continue.

Plans to do that already are under way, said Ide and oth­er ABA leaders.

Ide said the ABA will publish a report on the symposium in January. Meanwhile, the association continues to maintain a rule of law Web site (www.rolsymposium.org) that allows symposium participants to continue communicating on issues raised in Washington. Ide said the ABA also would explore the possibility of creating a rule of law coalition. “We need to develop a global rule-of-law culture,” he said.

ABA President Michael S. Greco of Boston announced plans to create an office of rule of law initiatives to coordinate the association’s efforts in this area during the coming years. (Greco discusses the importance of advancing the rule of law around the world in his President’s Message column on page 6 of this issue. And ABA Executive Dir­ec­tor Robert A. Stein’s report on page 66 addresses the symposium participants and programs.)

And the association’s president-elect, Karen J. Mathis of Denver, confirmed plans to convene a follow-up conference on the rule of law in September in conjunction with the ABA Sec­tion Officers Conference and the an­nual meeting of the Interna­tional Bar Associa­tion, both being held in Chi­cago that month.

CHIEF CHALLENGE

The issue is worth all that attention, say ABA officials as well as world leaders who attended the November symposium.

“The lack of access for most of the world’s population to the rule of law and economic opportunity is not a marginal issue, but the primary challenge of our times,” said Ashraf Ghani, the former finance minister for Afghani­stan who now serves as chancellor of Kabul University.

But one measure of the challenge to introducing rule of law concepts in different social and political settings around the world is that the term itself defies easy and specific def­inition. The struggle to define the rule of law was a running theme of the symposium.

U.S. Supreme Court Justice Sandra Day O’Connor may have come as close as anyone at the symposium to capturing the scope of the concept.

“The notion of the rule of law is a sacred one,” said O’Connor, who is retiring from the court. “The rule of law helps citizens have rights protected, have commercial agreements enforced and the country run as it should. But every country has to develop its own institutions and its own way of doing it,” she said. O’Connor was just one of an impressive list of head­liners at the symposium. She was joined on one panel by fellow Supreme Court Justices Stephen G. Breyer and Anthony M. Kennedy. Appearing on other pan­els were Sen. Lindsey Graham, R-S.C.; and Reps. Jim Kolbe, R-Ariz.; and Nita M. Lowey, D-N.Y. Sec­retary of State Condoleezza Rice and Sen. Hillary Rodham Clinton, D-N.Y., both gave luncheon addresses.

TOILING IN THE TRENCHES

The hardest work of the con­ference took place in the trenches of the plenary panels and breakout sessions. There, speakers and audience members struggled to bring the rule of law concept down from the heights of aspiration and find ways to apply it on the ground in regions wracked by civil wars, terrorism, longstanding ethnic and religious antagonism, poverty, corruption, and discrimina­tion against women and minority groups.

This daunting challenge was described in practical terms by Hauwa Ibrahim, a lawyer from Nigeria—a country where, she said, it is hard to be a woman, let alone a woman lawyer.

Ibrahim—who is a member of the world fellows pro­gram at Yale University in New Haven, Conn.—described her work defending a woman sentenced to death by ston­ing under local law in Nigeria. Ibrahim noted that she and other female lawyers working on that case were required to have male lawyers speak for them in court.

“As lawyers, what we have is the law,” Ibrahim said. “We codify it and interpret it. But sometimes people don’t know what you’re talking about in the rule of law. Is it something we can apply from the big picture to the local setting? We can’t afford not to recognize local con­ditions.”

While the official sentence for Ibrahim’s client has been commuted, she said the woman is still under an informal death sentence. But she noted that the local court did consider a mix of local law and international legal concepts to at least recognize some basic right of her client to human dignity.

Echoing Ibrahim’s theme, speakers on various panels emphasized that recognizing the rights of women and minorities must be an integral element of a society that exists under the rule of law. But achieving that kind of equality is an elusive goal, even in democracies, because it calls for shifting the social and economic balance of power.

Easterly, the New York University economist, urged recognition that law often exists “to protect the interests of the powerful, which usually means men. But the rule of law means everyone’s rights are protected. The rule of law for the rich is not the rule of law.”

WHAT’S GOOD FOR BUSINESS

Easterly was just one of the speakers who emphasized that the growing drive to establish the rule of law around the world is based on economic realities as well as democratic ideals.

There is growing recognition, said Justice Breyer, that “the rule of law is desirable for economic reasons as well as human rights.”

There is something of a selfish aspect to the economic factor as nations seek to introduce greater rule of law to their systems, said Samuel P. Fried, the senior vice pres­ident and general counsel for Limited Brands Inc. in Colum­bus, Ohio.

Most countries recognize that capital for investment and other economic improvements is limited, he said, and that they can compete for it more effectively with a legal system that recognizes property rights and allows for more predictability in the outcome of business disputes. But in that way, he said, improving business conditions can be a pathway to bringing improvements on other fronts, as well.

Democratic governments and other advocates for the rule of law can use that desire in developing countries for economic improvement as a wedge to push for broader reforms, some speakers said. They pointed to efforts to improve rule of law standards by nations seeking entry into the European Union—most recently Turkey—and to U.S. government efforts to tie economic assistance to broader democratic reforms.

That is a goal, for example, of the Millennium Chal­lenge Corp., created by Congress in 2004 at President Bush’s recommendation to fund democracy initiatives by foreign governments, said Morton H. Halperin, di­­­­­-rector of U.S. advocacy in the Washington, D.C., office of the Open Society Institute.

A basis of U.S. policy, said Secretary of State Rice in her speech, is that “as we empower weak and poorly governed states, we also expect them to fulfill respon­sibilities.”

But as the symposium unfolded, one point of consensus was the view that, ultimately, the rule of law must be defined from within.

“The meaning of the rule of law may vary across countries and cultures,” said Salaheddin Al-Bashir, the former minister of justice for Jordan, in a dinner speech. But reform to a nation’s judiciary and other institutions, he said, “must be homegrown. Others may help, but what is needed is a sense of ownership.”

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