'Rule of Law, Good Governance and Development Cooperation in Turbulent Times'

Minister Koenders focusses here on human rights and legal diversity, examining the tension that sometimes arises between traditional law and and international law. He ends with his desire to intensify Dutch efforts and committment towards women's rights, economic growth and distribution of wealth, sustainability and fragile states, all the while emphasising the importance of the rule of law.

[Intro]

Rector Magnificus, ladies and gentlemen, it is a great pleasure and honour to address you in this event co-sponsored by the distinguished Van Vollenhoven Institute for Law and Development, the Development Cooperation Students Association Leiden and the European Law Students Association. I highly esteem and appreciate the interest this university has in development and internationalisation. And it has a long tradition in this area to be proud of. Van Vollenhoven inspired many in studying customary law abroad, especially in what I now call developing countries. His in-depth knowledge of this field of study in the former Dutch East Indies was an example for many. Law and development is not an easy subject. Also not an easy subject to talk about.

I would like you to travel in your minds from colonial East Indies to Pakistan, a country I visited ten days ago. Pakistan has been at the centre of international attention recently. Its lawyers and judges have exerted enormous public pressure to reinstate suspended Chief Justice Chaudhry – an unusual act for a profession that does not normally rush to the barricades, at least not in Pakistan. And maybe also not here.

I am impressed by the courage of the judiciary in their struggle for the rule of law and democracy in Pakistan. A struggle, which is further enhanced by the encouraging growth of a free press. Pakistan, still largely a feudal society, is slowly opening up. Huge challenges remain. One of the most pressing is the need for free and fair elections. Only completely free and fair elections will bring the broader legitimacy that is needed to foster democracy and to fight poverty, feudalism and extremism. And it can also enhance the rule of law in Pakistan.

Let me stress that in general by free and fair elections I do not simply mean a technically perfect electoral process. With an independent electoral commission, the right amount of ballot boxes and the electoral legislation in order. All by the way very important; the Dutch government is supporting these kind of programs, also in Pakistan. But that will not be sufficient. There is something more fundamental at stake. It is crucial for people to understand why they vote, what they vote for and that they feel free and safe to vote for any candidate. For Pakistan this means that there has to be level playing field for all political stakeholders. It is critical to enable voters to exercise their democratic right. Only then free and fair elections can truly represent the realities on the ground, and maybe contribute to the establishment of the rule of law in Pakistan. Those realities are characterised for instance by Mukhtar Mai.

Mukhtar Mai is also from Pakistan. She was the victim of a dreadful gang rape, ordered by the local tribal council as an ‘honour punishment’. Going through normal legal channels, Mukhtar made sure her attackers did not go unpunished. A revolution for her person, but also a milestone in Pakistan. Our development policy, in a very, very modest way, supported her struggle, and organisations that worked with her.

These and many other examples from the lives of people in developing countries show the importance of the support for people who fight for the rule of law. Elections can contribute to the rule of law, but elections without the rule of law can create illiberal democracies. I will get back to this.

[Human rights, structure of the speech, opportunity for discussion]

Respect for human rights, of all forms, in my view is the essence of development and a basis and consequence of the rule of law. International cooperation should be about rights and development. Or in many cases, the lack thereof! The right to security, for example, is at least as unfairly apportioned as the right to education. And the right to independent development, for men and even more so for women, is under daily threat in many parts of the world. Recognising and guaranteeing such rights – formally and substantively – is the essence of development, and therefore of development cooperation. Already in 1948, the Universal Declaration of Human Rights was adopted, followed by the International Covenant on Economic, Social and Cultural Rights of 1966 and the 1968 International Covenant on Civil and Political Rights. These starting points, or even universal claims, are and should form our basis for policy and our politics.

Putting the theory into practice, my Ministry adopted the ‘Rights Based Approach’. This aims to look at both the ‘rights-holders’ and the ‘duty-barers’ . As a cross-cutting issue. In all our rather technical sectors – they are very important for people – such as water, health and education, it should be a logical but difficult principle to apply. The rights-holder has a right to clean drinking water. By consequence, duty-barers, in most cases the state, need to deliver clean drinking water.

In its advice of 2003, the Advisory Council on International Affairs, supported our concrete strategies and measures on human rights. These can be applied in everyday development practice to strengthen the coherence between development cooperation and human rights policy. The human rights approach to development cooperation could be a means of achieving this. But it cannot be stressed enough that we should not only look at the application of basic human rights or civil and political rights. Social and economic rights are equally important.

I have been asked to speak today about the rule of law, good governance and development cooperation in turbulent times. A very broad topic, also for our discussion afterwards.

[The rule of law]

Let me begin with a difficult question: who supports the rule of law? In fact, almost all in words, but only few in deeds.

Many world leaders recognise that the application and observance of the rule of law is a prerequisite for economic development, democracy, human rights and international stability. From the preamble of the Millennium Development Goals to Presidents Mugabe of Zimbabwe and Ahmadinejad of Iran: leaders from very different backgrounds insist that the rule of law is of paramount importance. Often with very different intentions.

One of the key development goals for most members of the international community, including The Netherlands, is to strengthen the laws and political institutions of developing countries. Strengthening the rule of law is an important step en route to better governance. Not least to ensure compliance with internationally accepted standards, norms and Treaties.

In short, everyone, from dictator to peacemaker, believes in the rule of law. So why are the goals so difficult to achieve?

A few months ago, on the twentieth of April to be precise, experts in the rule of law from all over the world met at my ministry. One of the organisers of the meeting was Sam Muller, the director of the Hague Institute for the Internationalisation of Law. He said that academics are at least as divided about the meaning and purpose of the rule of law as politicians are. ‘ Like “art” and “democracy”,’ he said, ‘the rule of law is a concept which is complex and controversial on many counts.’

This is not surprising. To start with, what ‘law’ are we talking about? Who decides? And who is responsible for enforcing it?

One could say, first of all and essentially very simple, that the rule of law is the opposite of the rule of men. The rule of men subjects society to arbitrariness. It is the frightening kind of society that Thomas Hobbes in 1651 described as being one of ‘continual fear, and danger of violent death’, one where ‘the life of man is solitary, poor, nasty, brutish, and short’. A life that is still present in many parts of the developing world. East-Congo is a good example. A society in which one person’s freedom comes at the expense of another’s, needs rules. Rules that must be enforced. These are political choices.

In most cases – however – the situation is more complicated.

[Universality and diversity of the law; mixed systems]

Many of the countries we work with have more than one legal system. Last week in Uruzgan, I saw myself just how widespread the Pashtunwali is. In Sudan, sharia law is applied in some parts of the country, while elsewhere tribal or traditional law prevail. There is also a formal, central legal system that largely complies with the universal agreements on human rights. And of course certain areas of the country are on the brink of complete lawlessness and chaos. What we see is a large diversity of law, and sometimes a complete absence. At the same time, universality remains a key concept.

The Netherlands is known as a staunch advocate of strengthening universal justice and international monitoring institutions, and this complicates the situation. We want to be a tireless champion of the implementation and enforcement of the right to development. We want the international law to be instrumental in overcoming the challenges facing humanity both now and in the future. These challenges are: peace and security, freedom and respect for human rights, and sustainable development, including poverty reduction and environmental conservation. International law, as a system of standards and values and as a system for concrete legislation, is a very dynamic field. Every day, it is broadened and deepened by a wide variety of legal sources and a growing body of both state and non-state participants. It is a field where there is still a lot to do, and we do not yet fully understand how it affects national legal systems.

In the years ahead The Netherlands will continue its efforts in this area. The Minister of Foreign Affairs and I have made this one of our key priorities of our policies.

But we need more than international declarations. In many countries, including some that have signed the international declarations and charters, traditional and religious law are also in force, and in practice, they are at least as relevant. Jan Michiel Otto, as professor of Law and Governance in Developing Countries, has done a lot of excellent work in this area.

In countries where different legal systems are in order we face a difficulty with our ‘traditional’ interventions aimed at strengthening the formal legal institutions. Traditional forms of law enjoy a great deal of popular support. The enforcement of tribal and traditional laws is often to the great disadvantage of women in developing countries. In part because such legal systems deny them the right to own and inherit property. But also because women don’t know the rights that their own system do grant them. How can we promote universal standards in local law systems, and the enforcement thereof?

In practice, the Dutch government supports local organisations that try to make women aware of women’s rights under Muslim law. But it is a difficult job, often not seen as credible. In Egypt, we work with the Egyptian Centre for Women’s rights. The mission statement of this Centre: “we are committed to improving the political and legal status of women and confronting all forms of gender-related discrimination. The conviction that women's rights are an integral part of human rights is what drives the Center's work.”

In Jemen, for instance. We support an organisation that tries to prevent female genital mutilation. Female genital mutilation is a brutal violation of the right to physical integrity. However, practice has shown that this organisation can only convince the traditional doctors that they shouldn’t cut too much of the female sexual organs. Should we continue supporting this organisation that cannot stop female genital mutilation, but tries minimize damage? Or should we discontinue our support, knowing that this won’t help the many affected women? It is a difficult moral question, but we will have to stand by the international standards of human rights.

In Afghanistan, we try to look at ways to support the local legal system. Does this support make the laws intrinsically legitimate? I do not think so: human rights, human rights standards, are to be universally applicable if they are to have any meaning. And of course we work on that.

A number of human rights groups, for example, are working with international lawyers in some Islamic countries to modify marriage contracts within sharia law in order to strengthen the position of women. In a sense, the example of Mukhtar Mai, the victim of an honour punishment who fought for her rights in multiple legal systems, also reflects our aim to help those who seek justice, in whichever system.

I think this is an interesting approach. But a very difficult one. It was actually implemented by the man for whom this lecture is named, Cornelis van Vollenhoven. At a time when such a thing was unheard of, he tried to understand why the local law in the Dutch East Indies was the way it was. That is what we must do: we need to understand ‘the local reality’ and carefully study the factors that permit underdevelopment and injustice. This will give us a much better handle on, when necessary, “how to counteract them”, such as in some cases at the moment in Egypt.

[Transitional justice and preventing impunity]

Looking at local systems and how to support the universal standards in them is one thing. At the same time, international justice is sought in many cases; this is the discussion on impunity. The dilemma of “peace in the short run and justice in the medium run” is actually one that we face in many conflict areas we work in today.

In this context I obviously cannot overlook the Dutch efforts to promote transitional justice in conflict areas. A good example of how both the local system and the international rule of law can be mutually enforced is Rwanda, with all its difficulties. Immediately after the genocide, we supported the community-based courts known as gacaca. Through these courts, local people passed judgment on the ‘small fish’, the relatively minor offenders. Another example is the Truth and Reconciliation Commission in South Africa, which addressed the injustices in the apartheid system. But we always have to keep our own standards in mind. The issue of a general amnesty such as under discussion in Afghanistan that lets everyone off the hook with one sweeping gesture, is a very difficult issue. Impunity breads conflict. Criminal proceedings can sometimes help heal wounds; they give the public a sense that justice has been done. Righting the wrongs of the past is of great importance. And it might even have a preventive effect.

We of course have always believed that criminals should be held accountable for their actions. As you will know, our country has a long tradition of hosting international criminal law institutions. For example the ICTY, the Appeals Chamber of the Rwanda Tribunal, the Lockerbie Court, the Special Court for Sierra Leone that is trying Charles Taylor and, the International Criminal Court.

An issue I discussed months ago in Northern-Uganda is the case of 4 accused Acholi leaders of the Lord’s Resistance Army. Our statement to the Ugandan Minister of Justice: they either need to go to the ICC in The Hague or they need to be brought to justice in a national process that is in compliance with ICC standards. In local and international courts, like in local and international laws, universal standards have to be met. The Netherlands recently supported a conference in Uganda on traditional transitional justice. Experts from the ICC and government and Acholi leaders talked about the possibilities to incorporate ICC-standards and methods in traditional concepts of accountability and reconciliation.

[Rule of law as a basis for successful elections]

Too often, democracy is mistaken for rule of law. And many of the democracies we supported are illiberal democracies. As a Member of Parliament, I was active in fostering democracy and creating alliances with parliamentarians and parties in Africa, especially after the openings created by Mitterrand’s La Baule speech in 1990. I remember many, somewhat amateurish visits I made to parliaments in various places, from Benin to Zambia. I saw in practice how difficult it is to help build democracy in disadvantaged countries characterised by poverty and inequality. Democracy can exacerbate conflict, but it can also bring about enormous progress. Copies of Western models can be extremely counterproductive for democratic change; and the irony is that our models are being exported at a time when our own democracies in Europe are under pressure and going through major changes.

[Political development cooperation]

Development cooperation is thus not only about our own ideas, blueprints and concepts. We must also listen more to the voices in the poorest countries. Taking account of feedback from the poor automatically makes poverty reduction a highly political process.

Development cooperation can encourage and support home-grown processes that will contribute to a world with less poverty and more justice. It needs to aim at increasing access to and participation in these processes by the people themselves. A more political conception of governance and the deepening of democracy is needed. And that is the direction of much of my development policy.

[A more political conception of good governance and deepening democracy ]

What do I mean by a more political conception of governance, and above all the deepening of democracy? Poverty is not only an economic phenomenon but also a socio-cultural and a political one. Good governance has evolved from a precondition for development in many efforts of the past to more of an objective in itself. In the past decade, donors have focussed on those countries that met their standards for good governance. This has led to ‘donor darlings’ such as Zambia and ‘donor orphans’ such as Chad. Countries that are in the greatest need of poverty alleviation are then left behind. In our policy we need to pay much more attention to these fragile states.

But good governance in my view also relates to the question of accountability. Development cooperation means giving Dutch taxpayers’ money to foreign governments and institutions. And that calls for accountability. We ask the countries that receive our money to render account to us. Paradoxically, this might entail that the need to report to their own people becomes less of a priority. In Tanzania, for example, The Netherlands spends twenty million euros a year on budget support. By definition, that money is not raised through local taxation, and the Tanzanian government does not have to account to its people f or the way it is spent. In a way, it is the opposite of the American revolutionary slogan. ‘No taxation without representation’ becomes ‘no representation without taxation’. This is not correct.

Wherever we give development aid, especially budget support, I want us to automatically examine the role of local politics and the rule of law in development cooperation. In other words, development cooperation should never weaken national democratic institutions. If it does so, we are not responsible donors. Because our aid is needed and domestic accountability still often falls short, I will focus on making local politicians accountable to their own peoples. This will be taken up more in political dialogues and specific activities. We must have the courage to also support political parties, to parliaments, to civil society organisations, to the media, to the real checks and balances – and not leave strengthening the rule of law to others. But of course we have to it with modesty.

[Four policy priorities]

Ladies and gentlemen. I touched upon some of the dilemma’s that we face when dealing with different co-existing legal systems. I stressed the need to adhere to universal values. Implementing those values demands a ‘local reality check’. A more political approach towards development cooperation is needed, including supporting democratic accountability.

What does this mean for policy? I would like to address this question under four headings:

  1. Women’s rights and the rule of law;
  2. Growth and development;
  3. Environment;
  4. Fragile states.

These are the four priorities I intend to focus on in the coming years.

[Women’s rights]
I first want to start with the issue of women’s rights. If I look at the scan of the MDG’s, I see that a lot of women are not reached. In fact, often their position has deteriorated. So in my view, this issue has to be put on the agenda. More rights and opportunities for women also means that girls and women are more likely to speak up and take part in local administration and national politics. So investing in women is a way to achieve both maximum economic growth and substantive democracy.

Political transformation is necessary for sustainable, equitable development, especially to attain MDG’s three and five. For example, our embassy in Guatemala is investing in expanding women’s role in local government as a means of improving their sexual and reproductive rights and health. Committees are represented in community councils which set priorities for the community. The community councils are in turn represented in municipal councils, where the financial decisions are taken. Dutch support is helping women in the committees not only with training in their particular field but also in having a say at different levels of government. Learning better meeting and negotiating skills strengthens these women’s position in their communities and in government. This leads to enduring gains for women’s reproductive health and rights.

[Growth and development]

My second priority is ‘growth and development’. Why do I mention this? Because in the last couple of years, we see an enormous growth that does not reach the bottom billion poorest people. They lack the comparative advantage of globalisation.

I see it every day: development cooperation is all about big international issues: debt relief, fair trade, more effective peace operations subject to international law. New opportunities are rapidly emerging for developing countries. But so are the threats to the poor. Millions of people in China, Brazil, India and, to a lesser extent, Africa, have escaped from poverty. This is good news. But the optimism has limits because so many remain trapped in a life of poverty and exclusion. This demonstrates the perversity of globalisation.

Globalisation has put pressure on social and economical rights. Those rights are part and parcel of international laws. The rights of individual workers established in international labour conventions are especially violated in upcoming economies such as China.

The International Labour Organisation is one of the oldest surviving international bodies. It is the only surviving international body set up at the time of the League of Nations following the First World War. Its guiding principle is that "labour is not a commodity" to be traded in the same way as goods, services or capital, and that human dignity demands equality of treatment and fairness in dealing within the workplace. Promoting ILO’s ‘decent work agenda’ is part of the answer to unfair effects of globalisation.

In many developing countries, especially in those who are trying to grow out of poverty, the lack of property laws is a huge problem. People are not stimulated to work their land and ensure a good harvest if there is a chance that their profits are taken away. Land registers and chambers of commerce can part of the solution. And many of our programs in developing countries are aimed at supporting these kind of oversight institutions.

Former World Bank official Paul Collier writes in his book The Bottom Billion that there are various reasons why the one billion poorest cannot escape a life of poverty. But, he claims, laws and charters can always help them escape from poverty, regardless of its cause. In support of this claim he cites initiatives like the Extractive Industries Transparency Initiative, in which countries that have natural resources commit themselves to increasing transparency over their revenues.

We must encourage such initiatives. Oil, diamonds and timber are not the only things that lend themselves to binding agreements on the government’s expenditure of revenues. Governments can also increase the transparency of their national budgets, the functioning of democracy and the way public investments are made. Collier rightly describes these things as global governance public goods. Goods that affect us all on the world market. Goods for which we are all responsible. Corporate social responsibility applies not only to companies but also to states.

[Sustainability, climate and energy]

The third priority I want to highlight today is the environment. Environmental degradation poses one of the most urgent threats to development and rights. Worldwide, 2.6 billion people are dependent of an unhealthy and inefficient source of energy: biomass, and especially wood, charcoal and manure, leading daily to many people’s death.

On a macrolevel, unsufficient energysupply is an important obstacle to many countries for further growth. Drastic changes in the energy situation are th erefore of great importance to fighting poverty.

Measures are needed in different areas to ensure a more just and more sustainable global energy situation. To mention a few: to improve access to energy for the poor, radical application of the principle “the pollutor pays”, and stronger international institutions for monitoring the use and distribution of those global public goods which I mentioned earlier.

There are many examples of increasing access to energy are production of a nut called jatropha in Mali for regional and local energy supply, scaling up waterpower and sustainable use of wood in Rwanda, Burundi and the DRC, the use of biogas in African villages and the cooperation with Indonesia on forest management. These are crucial areas we have to work on immediately, otherwise the woods are gone for good.

Through certification, we can support sustainable production of bio fuels meant for export. We want to ensure that international chains of production are sustainable. From sugarcane for ethanol in Mozambique to palmoil in Indonesia.

In this Cabinet, I am responsible for the coordination of international sustainability. I will dedicate myself to more coherence between international agreements in the area of environment and climate on the one hand and poverty alleviation on the other hand. This is all about the upcoming negotiations on the follow-up of Kyoto.

[Fragile states]

Fragile states are my fourth and last priority. More than anything, political development cooperation requires a critical dialogue with aid recipients, based on a thorough analysis of the ‘drivers and blockers’ of development, justice and inclusive government. In many traditional partner countries, this dialogue is held with governments. Even that is far from straightforward. But what do you do with countries where rights, authority and the rule of law are virtually non-existent, not written or codified? Countries in which there is no centre of power? In other words, what do you do with fragile states?

In a large group of fragile states, conflict is either just around the corner or only recently over. Only to mention Ethiopia or Colombia. Needless to say that governance and the rule of law are precarious, to say the least, in these countries. They are often the least far along in achieving the Millennium Development Goals.

In theory, peace and security sector reform, including humanitarian aid, should be the first priorities in post-conflict countries. What do people want? Basic security, food. It is very difficult to discuss this with the governments on the other side.

In many countries, the ‘peace dividend’ is not being collected, and the countries remain reliant on emergency aid. Many years pass before reconstruction can begin. This ‘gap problem’ is very evident in Sudan. In 2006, The Netherlands gave Sudan fifty million euros in humanitarian aid. But the move towards reconstruction and sustainable development programmes has yet to be made. The lack of local capacity and bad governance are to blame. Wars and conflicts can disrupt education and health care for many years. Sometimes a generation is lost, and illiteracy is the norm. In such circumstances, written project proposals, which are part of classical development procedures, simply will not work. I think there is a role here for the UN. Together with the World Bank and the UNDP, it must make more of an effort to tailor its programmes to local these circumstances.

[Volkenrechtelijk mandaat]

This Friday is the International day of Peace. In The Netherlands, several organisations seize this opportunity to organise all sorts of events during this ‘peace week’. Support from the Dutch citizens for our efforts to promote peace worldwide is essential.

The political parties that constitute the present Dutch government, decided on their coalition agreement that military missions it would send out to promote peace would need to have “an adequate mandate, supported by international law”. This notion is part of a government strategy that was approved last June.

We also believe that there is a so-called Responsibility to Protect. This responsibility first and foremost lies, of course, with states themselves. They should protect their citizens from war crimes, genocide, ethnic cleansing and crimes against humanity. But there is also a responsibility for the international community, when states and their leadership themselves fail to protect. Sometimes, states themselves are the perpetrators, and their population strongly suffers, or is even threatened it its existence, by such heinous crimes. This is why we believe that on moral and political grounds, intervention might be justified.

These are hard decisions to take. And that is why we, before we decide to take part in a stabilisation mission, should scrutinize whether there is an adequate legal ground for that mission and if the mandate of that mission is clear enough. These and other deliberations will need to made on a case by case basis. Not only do we take the applicable international law in force; we also look very carefully into the factual circumstances and the political context at that time. Whether it is Darfur, the Ivory Coast or Afghanistan.

[Strengthening the rule of law]

Let’s return to our main theme for the day: the rule of law. In any developing country, strengthening the rule of law is paramount. In practice, however, this is translated all too often into projects and programmes which are focussed on criminal law.

The rule of law does not function in isolation. For me, questions about the rule of law are questions about the balance of power and politics. That’s why our efforts should be broadened to cover administrative law, public administration and economic management.

In his article ‘Legal, Judicial and Administrative Reforms in Post-Conflict Societies: Beyond the Rule of Law Template’, the Swedish lawyer Richard Sannerholm writes that if we consider governance and the rule of law in post-c onflict societies, we mustn’t overlook economic governance. I couldn’t agree more. Unquestionably, law and order must be established and civil and political rights protected. But just as importantly, economic and social rights must guarantee incomes and public participation. Basic rules must give people the safety and security they need to grow food and earn a living.

In his book ‘Promoting the rule of law abroad’, Thomas Carothers writes that development workers often focus at tangible institutional reforms, such as building courts or training judges. But the deeper transition – strengthening the general role of law in society – is more important. Promoting the rule of law must therefore be more political, and as I mentioned earlier, we must look more closely at the reality on the ground. In most cases, people in developing countries will be heard only if their rights are respected and their representatives are genuinely representative. Human rights and democracy must therefore be given a far more prominent place on the development cooperation agenda of my government.

[Conclusion]

In a world of growing political, cultural and economic divisions, development cooperation is far much more than just aid. It is international politics, which invests as much energy in Africa as it does in Iraq, but in a different way. It is international politics that wants to listen, not to lecture. It does not follow the latest trends blindly but listens to what the poor themselves have to say, thus giving them influence over their own destiny.

Through targeted interventions, we must make sure that supreme court judges like Iftikhar Chaudhry and women like Mukhtar Mai are supported in their fight for justice. This is one of the most important contributions we can make to ensure that development is fair. It forces us, like Cornelis van Vollenhoven, to take a close and critical look at reality and what makes it tick.

I would therefore encourage all those who are present, but especially the members of the recently established Development Cooperation Students Association, to spread this message, a message you’ve already embraced by pursuing your interest in law and development. I look forward to discussing it with you.

Thank you.