The Rule of Law and the United Nations Summit of the Future

Within the United Nations (UN), the commitment to the “rule of law” is agreed language with regular resolutions in the General Assembly and in the Human Rights Council. This was not always the case: the term does not appear in the UN Charter and only entered the agenda of a main organ in the 1990s, even though there have been voices arguing for the rule of law as an underlying principle of the UN almost since its inception. More recently, the international community recognized “the need for universal adherence to and implementation of the rule of law at both the national and international levels” in the World Summit Outcome (para 134). UN member states are thus at least rhetorically committed to the rule of law. An often-cited definition of the rule of law was introduced by former Secretary-General Kofi Annan: “The ‘rule of law’…refers to 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.” The UN uses a substantive conception of the rule of law for its activities. Has the rule of law evolved into a principle for the UN system?

This blog post is doubtful. Within the UN system, there was never any conceptual agreement on the rule of law between the policy and operational levels, and the UN’s focus has been primarily on advocating substantive dimensions of the rule of law within states. Thus, actors within the UN system do not understand the rule of law as a principle that applies to themselves or the UN as such, but rather as a policy objective. In addition, rule of law language is decreasing in UN declarations. Despite Secretary-General António Guterres’ “New Vision for the Rule of Law”, the term “inclusivity”, not the rule of law, is the new buzzword on which efforts to reform multilateral institutions are centered. This is particularly visible in the draft Pact for the Future, which will be adopted at this year’s UN Summit of the Future. For these reasons, characterizing the rule of law as a principle for the UN system is descriptively inaccurate. In closing, I advocate for greater consideration of procedural dimensions as UN language shifts from the rule of law to inclusivity as the new paradigm and consider what the shift from rule of law to inclusivity in important UN declarations tells us about the nature of unwritten principles in contexts beyond the state.

The rule of law within the UN system: a thick understanding without member states’ consent

Within the UN system, rule of law language first became prominent in the 1990s, when the General Assembly introduced an annual (later biennial) agenda item on “Strengthening the Rule of Law” in the wake of the 1993 World Summit on Human Rights, where the rule of law was understood as an “essential factor in the protection of human rights”. Rule of law language was consolidated in the early 2000s, when the Security Council held two thematic sessions on the topic in 2003 and 2004. These debates served as a platform for Annan to launch the substantive definition I quoted above. As mentioned, the General Assembly explicitly recognized the rule of law at the national and international levels in the 2005 World Summit Outcome, where it affirmed its commitments to “an international order based on the rule of law” (para 134 (a)). Similarly, in 2012, the General Assembly reaffirmed its “solemn commitment…to an international order based on the rule of law” and recognized that the rule of law applied “to all States equally, and to international organizations, including the United Nations and its principal organs”.

Yet, neither the World Summit Outcome nor the 2012 Declaration define the rule of law, as member states could not agree on a definition. In subsequent years, enthusiasm amongst UN member states to include rule of law language in key UN documents subsided considerably. The Sustainable Development Goals (SDGs) do not contain the term “rule of law” in any of their goals – here, the rule of law was demoted from goal- to target-level. The UN Declaration on the Commemoration of the 75th Anniversary of the Organization, which marked five years since the adoption of the SDGs, only mentions the rule of law once (at para. 10), in a commitment to human rights, democracy and transparent and accountable governance institutions, including an independent judiciary.

At the same time, rule of law assistance is today a core component of the UN’s operational assistance. The UN provides, amongst other things, support for constitution-making processes and legislative processes, which were first introduced under the umbrella term “rule of law assistance”. Such assistance activities focus on the promotion of a set of substantive standards, especially in the areas of international human rights and gender equality. UN rule of law assistance is carried out in post-conflict contexts and, to a lesser extent, in countries where it maintains a country office. In all of its activities, the UN promotes a substantive understanding of the rule of law that is thickly imbued with a variety of human rights and democratic governance standards. The rule of law within the UN system is thus primarily considered as a policy goal, not a principle that governs the UN itself.

A new vision for the rule of law?

The abovementioned UN Declaration on the Commemoration of the 75th Anniversary of the Organization, originally intended as a decisive push for global governance reform, especially with regard to countering global inequality, was the stepping stone for the current Secretary-General, António Guterres, to introduce a series of reform proposals. Even if the declaration fell short of expectations, with vague phrasing that merely reiterated previously agreed language on many issues instead of establishing new commitments, it was important for Guterres’ ambitions to use his second term to reform parts of the UN system as it contained an explicit request to the Secretary-General “to report back…with recommendations to advance our common agenda” (para. 20).

I have shown elsewhere how vague phrasing in multilateral documents, coupled with explicit requests for reports, leads to the Secretariat having an important say on how to understand vague concepts within the UN system and acting as an interface between different global governance actors. In this case, the Secretary-General responded with a report entitled Our Common Agenda. Our Common Agenda reorganizes the broad and vague commitments from the Declaration into 12 areas and develops proposals for all of them, ranging from ending poverty to conflict prevention, digital cooperation, and sustainable financing. In addition, the Secretary-General issued various policy briefs related to different commitments across Our Common Agenda.

Commitment four of Our Common Agenda contains a call to abide by international law and ensure justice, which builds on the Declaration’s commitment to “enhance the rule of law by strengthening transparent and accountable governance and the rule of law”. Based on this vague phrasing, Guterres proposed a “new vision for the rule of law” that would build on Sustainable Development Goal 16 and the 2012 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels. His “New Vision for the Rule of Law”, published in 2023, uses Annan’s thick understanding of the rule of law and emphasizes human rights, gender equality, and “delivering justice at all levels” as core tenets – a clearly substantive version of the rule of law.

The substantive approach to the rule of law, absent a consented definition from member states, has led to a situation where procedural requirements are scarce. This becomes very visible in the New Vision: it calls for a “people-centered approach” and links access to justice with the 2030 Agenda on Sustainable Development’s commitment to “leave no one behind”. But it does so without spelling out what kinds of institutions could deliver such people-centered justice.

Inclusivity and effectiveness, not the rule of law, as a new turn in global governance?

In fact, the latest iteration of the UN’s rule of law work places great emphasis on inclusivity and effectiveness as two characteristics that are essential for the rule of law to be successfully implemented. The New Vision does not spell out what it means by inclusivity or effectiveness. However, the focus on inclusivity and effectiveness can be found in other documents that were issued pursuant to Our Common Agenda. One important document is the High-Level Advisory Board’s report issued in 2023. The High-Level Advisory Board was established pursuant to Our Common Agenda, which explicitly suggested that such a Board be appointed and that a Summit of the Future be held following the finding of the High-Level Advisory Board. Again, this underlines the Secretariat’s importance as an interface in shaping UN agendas.

The notions of inclusivity and effectiveness occupy a central space in the High-Level Advisory Board’s Report on Effective Multilateralism, as evidenced by the report’s secondary title, “Effective and Inclusive Global Governance for Today and the Future”. Issued two months before the Secretary-General’s New Vision for the Rule of Law, the Advisory Board’s first set of recommendations addresses the lack of inclusivity and representation in the multilateral system. It specifically addresses gender equality, improved civil society participation with a focus on refugee populations and youth, private sector engagement, and the systematic, formalized participation of cities and regions in global governance processes. In terms of procedure, the Board recommends revisiting decision-making by consensus, replacing it with majority decision-making, and establishing a “code of conduct” for negotiating international agreements.

In Our Common Agenda, Guterres explicitly proposes a Summit of the Future, which will be held this year in September, just ahead of the General Assembly’s annual session.

The language of inclusivity has found its way into the Summit: the current draft Pact for the Future, the main document that will be adopted at the Summit, contains over 20 references to inclusivity in various contexts, including in three headings. This is in stark contrast to the rule of law, which is only referenced four times and not present in any heading. This suggests that the rule of law is being gradually replaced in the wording of key UN documents with language of inclusivity and effectiveness.

What do these developments mean for the rule of law beyond the state?

Within the UN system, the rule of law has always been understood as a substantive concept that is inextricably linked with human rights and primarily directed at the rule of law within states, especially in developing and post-conflict states. In turn, efforts by some states to place the rule of law between states and in relation to the UN and its organs more squarely on the agenda have resulted in limited success. This is in large part due to the fact that many states have refused to subscribe to the thick notion of the rule of law advocated by the UN Secretariat since Kofi Annan’s 2004 report and related definition. Today, the rule of law is considered as primarily applying within states and, as this year’s New Vision for the Rule of Law evidences, something that is intimately linked to substantive values, such as gender equality, human rights protection, and the protection of minority groups. As such, the rule of law is neither a written nor unwritten principle for the United Nations. Instead, it is a principle that is advocated by the organization, but without a politically achieved consensus on what it means in practice.

This points to a more general question: to what extent can the debate on written or unwritten principles be applied to contexts beyond the state? After all, it is a debate that takes part predominantly in constitutional theory and constitutional law, and more so in some legal contexts than in others – as the introductory post to this symposium points out, debates on unwritten principles are not traditionally part of the German constitutional law canon. Given the decentralized nature of global governance and international law, (constitutional) principles beyond the state have had an even more precarious status than in domestic contexts. This becomes visible when examining debates surrounding the rule of law at the United Nations – a principle that is often considered to be the epitome of an unwritten constitutional norm.

Both the older rule of law debates as well as the newer inclusivity debates within the UN system miss in fact a crucial procedural dimension that has traditionally been part of the debate on the rule of law. This is particularly true insofar as these notions are often considered to confer legitimacy: for example, the High-Level Advisory Board explicitly states that meaningful representation in decision-making for all stakeholders would lead to increased legitimacy of multilateral decision-making.

Legitimacy is typically understood as the conditions under which decision-making is (descriptive conceptions) or ought to (normative conceptions) be accepted by those affected by those decisions. One key point in both normative and descriptive conceptions of legitimacy is typically some form of checks and balances and, relatedly, the separation of powers. It is noteworthy that such notions are entirely absent from the New Vision for the Rule of Law, the High-Level Advisory Board’s Report on Effective Multilateralism, and the Draft Pact for the Future – especially given the latest focus on legitimacy and inclusivity. Debates on effective multilateralism should not shy away from notions of the rule of law and separation of powers. Here, notions of the separation of powers that are intimately linked with the rule of law can inform international debates on inclusive multilateralism. While it is not advisable to apply understandings derived from the history and concept of the constitutional state directly to relationships beyond the state, the new focus on inclusivity should ask why participation is equated with heightened legitimacy, why there are almost no references to courts or other review mechanisms (both at the national and international levels), and what function the separation of powers has traditionally served: avoidance of concentration, and thus arbitrary, exercise of power. A vision of “inclusive multilateralism” should address how arbitrary exercise of power can be tackled through networked multilateralism.