Human Rights, the Rule of Law, and Democracy
Abstract and Keywords
This chapter examines the promotion of human rights, the rule of law, and democracy by external actors in areas of limited statehood. It begins with the definition of key terms and a brief overview of the historical trajectory in which contemporary interventions by external actors unfold. We then discuss cross-cutting issues and introduce the key actors involved in the promotion of human rights, the rule of law, and democracy. Analysing each of these issue areas in turn, we make three overarching arguments. Firstly, we highlight the multiplicity of outcomes that result from external interventions, whose impacts prove highly unevenly and spatially dispersed. Secondly, we emphasize the crucial influence of local actors and pre-existing institutions in shaping the outcomes of any governance intervention. Finally, we note that external actors have tended to rely on state-centric conceptualizations of democracy, the rule of law, and human rights.
The examination of human rights, rule of law, and democracy promotion by external actors in areas of limited statehood (ALS) is an examination of the articulation and implementation of collectively binding rules. In this way, human rights, democracy, and the rule of law differ from other issue areas discussed in this volume, such as health (Chapter 22 Holzscheiter, this volume), food (Chapter 23 Liese, this volume), or security (Chapter 19 Schroeder, this volume), which are concerned with public goods provision. Although competing and at times contradictory definitions of democracy, human rights, and the rule of law coexist in the literature, all have common statements about the ways in which collectively binding rules are articulated (democracy), systematically applied and enforced (the rule of law), and limited through normative standards that ought to be adhered to (human rights). This chapter examines human rights, rule of law, and democracy as they are defined and promoted by external actors in ALS. While we do not take a ‘top down’ process of diffusion—from the global North to the global South—for granted, we are primarily concerned with understanding the influence of external actors in shaping outcomes in each of these three issue areas in ALS (see also Chapters 10 Lederer, and 11 Beisheim et al., this volume).
The chapter begins with a definition of key terms. After a brief historical overview of good governance in the twentieth century, we proceed with a discussion of the cross-cutting issues that pertain to each of the three policy areas, including, importantly, the actors involved in their diffusion and dissemination, and the principle mechanisms through which their promotion occurs. Finally, we discuss questions of effectiveness and legitimacy, particularly concerning subnational variation and reception by local actors that pertain to each of the three issue areas individually. We conclude with a set of policy considerations for stakeholders engaged in governance interventions.
(p. 417) Terminology
Human rights, democracy, and the rule of law are inherently contested concepts (Gallie 1955). Their meanings depend on the philosophical traditions in which they are embedded as well as the contexts in which they are deployed. Schematically speaking, different conceptualizations of democracy, the rule of law, and human rights exist on a spectrum that ranges from minimalist to more expansive understandings. At its core, minimalist notions of human rights encompass physical integrity of the individual as well as a narrow portfolio of civil and political rights such as the right to free speech and assembly. More comprehensive approaches add social, economic, and cultural as well as group rights (Cohen 2004). Whether these rights (either in their minimalist or maximalist version) are an integral part of ‘the rule of law’ is a subject for ongoing debate. Whereas thin definitions are primarily procedural, and highlight the capacity of the law to hold state and other powerful actors accountable (Raz 2009), thick conceptualizations of the rule of law include substantive provisions such as human rights and principles of redistributive justice (Tamanaha 2004). The concept of distributive politics is a similarly crucial component of substantive definitions of democracy, in which participation and processes of collective will-formation are central components of democratic governance. In contrast, minimalist accounts of democracy emphasize the peaceful transition of power; and fair, honest, and periodic elections in which candidates freely compete for votes among eligible members of the adult population (Huntington 1993: 7).
In this chapter, we take minimalist conceptualizations as a baseline and focus primarily on the meaning that democracy, the rule of law, and human rights have acquired among multilateral donor agencies within the international system. Human rights are typically understood as the civil and political rights enshrined within the United Nations system and international human rights instruments such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). At the same time, democracy is largely defined and measured in terms of free and fair elections while the rule of law is commonly understood as the promotion of an independent and impartial judiciary (Carothers 1998, 2003). Collectively, we refer to these three policy areas as governance interventions. External actors are, simply put, those that derive their authority and mandate from outside the state in question. These may include foreign governmental or non-governmental organizations, donors, international organizations, or transnational religious entities.
Good Governance in the Twentieth Century
The promotion of norms of governance in ALS through external actors is not a new phenomenon. European conceptualizations of normatively desirable forms of democractic (p. 418) governance and the rule of law have served as the cornerstone of European colonial domination (Benton 2002; Den Otter 2007). Human rights for women and minorities were similarly used by European powers in their efforts to justify and legitimate colonial expansion and demonstrate cultural superiority (Abu-Lughod 2002; see also next section, ‘Actors’). Good governance promotion thus unfolds in much larger historical trajectories, which are characterized by a tension between the promotion of normatively desirable political order and external domination (for the historical discourse on colonial governance, see Chapter 8 Herren, this volume).
Following independence, Western governments and development agencies continued to offer assistance in the areas of democracy and rule of law promotion, but throughout the Cold War this assistance became deeply politicized. In the 1960s and 1970s, the US government incorporated far-reaching interventions across Africa, Asia, and Latin America in the name of ‘law and development’ (Krever 2011; Trubek and Galanter 1974), treating legal institutions as a panacea for problems of economic growth and political order. However, these efforts were overshadowed by parallel efforts to shore up the support of Western allies and undermine those with Soviet sympathies. Thus, beneath a guise of democracy promotion, the United States and the United Kingdom, among other European nations, propped up abusive human rights regimes, while aggressively promoting economic liberalism. In many cases, rule of law and economic liberalism came at the expense of democracy and human rights, as government agencies in the United States and Europe supported military regimes and facilitated coups in countries from Democratic Republic (DR) of the Congo to Chile. Since the end of the Cold War, Western governments and development agencies have continued and even accelerated the promotion of effective governance, particularly in ALS. We consider the key actors involved in these efforts in turn.
Our focus on governance interventions by external actors includes both governmental and non-governmental stakeholders (see also Chapters 10 Lederer, and 11 Beisheim et al., this volume). Major players include multilateral donors (e.g. the World Bank and the International Monetary Fund, IMF) as well as various UN agencies like the United Nations Development Program (UNDP), UNICEF, and UNWomen. In addition to regular contributions to international institutions, governments of industrialized countries also disperse political aid directly to governments of poorer nations via bilateral agreements (for a discussion of economic aid, see Chapter 20 Dreher et al., this volume). Aid is most often channelled through implementing agencies like the United Kingdom’s Department for International Development (DfID), the German Gesellschaft für Internationale Zusammenarbeit (GIZ), or the United States Agency for International Development (USAID).
(p. 419) Non-state actors, including non-governmental organizations (NGOs), individual practitioners, technocrats, experts, and advocacy organizations, also assume crucial roles in the promotion of good governance. Despite divergent substantive focus, non-governmental actors share strategies, tactics and approaches, and may work on multiple issue areas consecutively. Activities may include election monitoring, fact-finding, training, and outreach workshops disseminating ideas about human rights, democracy, and the rule of law. And NGOs may work directly with host governments to roll out programmes such as the timely payment of government employees or distributing national budgets.
NGOs may be transnational organizations with regional or country offices responsible for direct programme implementation in their various field sites. Their partnerships may be concentrated in environments that appear to be most visibly in need of governance interventions: those exhibiting high degrees of limited statehood. Other organizations do not support programme implementation, but conduct research and collaborate with local partners (e.g. Human Rights Watch and Amnesty International). Foreign businesses (Chapter 13 Börzel/Deitelhoff, this volume) and religious organizations (Risse and Lehmkuhl 2006; Seay 2013; Titeca and Herdt 2011) may also be involved in aspects of governance and service provision. Finally, small-scale NGOs or ad-hoc organizations, that are not part of larger transnational networks, may have physical premises or programmes on the ground in specific contexts.
Modes of Engagement
This cast of external actors pursues myriad strategies, which can be analytically distinguished according to the specific logics of social action that they follow. The literature on the diffusion of norms and ideas distinguishes three such logics: the logic of consequences, the logic of appropriateness, and the logic of arguing (Börzel and Risse 2009; March and Olsen 2009; Risse 2000; see Chapter 16 Risse, this volume). The logic of consequences operates through the manipulation of actor’s utility calculations by creating two kinds of incentives. On the one hand, external actors impose negative incentives on recipient governments by making access to international loans or other forms of bi- and multilateral aid dependent on the adherence to specific conditions. Such conditionalities have been a cornerstone of the governance agendas of the World Bank and the IMF (see also Chapters 10 Lederer and 20 Dreher et al., this volume). While the logic of consequences operates through the manipulation of actors’ utility calculations, the logics of appropriateness and of arguing rely on the legitimacy of democracy, human rights, and the rule of law as aspirational norms of good governance. Research on the diffusion of human rights has shown how coalitions of liberal states, transnational advocates, and domestic activists can pressure authoritarian governments ‘from above and below’, thereby contributing to the socialization of human rights norms as accepted standards of appropriate behaviour (Keck and Sikkink 1998; Risse et al. 1999). While early accounts (p. 420) of socialization have been criticized for their underlying paternalism (Chandler 2013; Epstein 2012, 2013, 2014), the logic of arguing remains an important mode of interaction influencing interactions and outcomes of governance interventions in ALS, where normative dialogue is used as a form of persuasion to inspire changes in behaviour. These three modes of interaction constitute ideal types. Although they empirically hardly ever exist in isolation, they allow for analytical distinction between the different modes employed by external actors (Börzel and Risse 2009, 2011).
The particular mode of engagement chosen by an external actor, in turn, affects their empirical legitimacy (Chapter 28 Jacob et al., this volume). The imposition of external norms through conditionalities, for example, is generally perceived to lack local legitimacy. This continues to be the case even though key donors like the World Bank and the IMF have gradually moved away from the imposition of uniform policy templates and towards more participatory approaches. However, persistent disparities of power between donors and recipients have largely undermined efforts at enhancing local ownership and thus failed to meaningfully increase the legitimacy of external actors promoting norms of governance through strict conditionalities (Cooke and Kothari 2007). More legitimate are approaches that emphasize normative dialogue and persuasion. Instead of reducing participatory approaches to a bureaucratic imperative that needs to be adhered to, dialogic approaches can enhance the legitimacy of both external state and non-state actors (Kapoor 2002, 2007; Parfitt 2004).
The emphasis on enhanced legitimacy through dialogic approaches points to the importance of local actors as mediators, brokers, and translators of external governance agendas (Acharya 2004, 2009; see also Chapter 17 Hönke/Müller, this volume). In processes of translation, the meaning of human rights (Levitt and Merry 2009; Zwingel 2016), democracy (Schaffer 2000), and the rule of law (Berger 2017a; Zimmermann 2017) is changed in ways that render them congruent with pre-existing institutions, practices, and normative frameworks in ALS, without necessarily reducing their emancipatory potential. At the same time; however, processes of translation and domestication might leave interventions vulnerable to distortion. Local actors might resist, reconfigure, or instrumentalize the agendas of external actors. We will return to the importance of local actors as both translators and resistors of external interventions in the subsequent sections.
Much of the literature on liberal norm diffusion assumes that internationally promoted democracy, human rights, and rule of law principles are normatively desirable and globally shared. Critics, however, point to the imbrication of liberal principles with colonial expansion (Tully 2008a, 2008b), and the detrimental and depoliticizing effects on local forms of resistance (Ferguson 1990). Stephen Hopgood (2013) thus argues that we are currently witnessing ‘the endtimes of human rights’. Adding to historiographic (p. 421) scholarship on the development of the human rights movements (Moyn 2012, 2014; Hoffmann 2016), Hopgood locates the emergence of the current human rights movement in mid-nineteenth-century Geneva. Since the late 1970s, when the international human rights movement shifted its centre of gravity from Europe to the United States, Hopgood points to the marketization of human rights as moral products for consumption in the global North (Hopgood 2013: 103; see also Bob 2010). Makau wa Mutua (2001) similarly argues that the promotion of human rights in ALS needs to be critically analysed against the backdrop of racialized global hierarchies, in which human rights promotors comprise primarily United Nations agencies, Western states, Western academics, and transnational advocacy networks dominated by members from the global North. These hierarchies reinforce a narrative that pits the global North as dispenser, and the global South as passive recipient, of rights.
Other scholars contest the relevance, applicability, or universality of democracy and the rule of law as they are imported to non-Western contexts. Abdullahi An-Na’im (1995) and others have called attention to modes of dispute resolution that are embedded with local meaning and thus retain legitimacy among the communities they are intended to serve. Adam Branch (2007), Phil Clark (2008), Allison Corey and Sandra Joireman, (2004), and Timothy Longman (2006) have emphasized traditional or customary rule of law mechanisms and their effectiveness in resolving local disputes and responding to intercommunal violence and division. In rural Malawi, Harri Englund (2006: 12) shows how the internationally induced translation of people’s grievances into individual rights violations through human rights and rule of law institutions in fact served to undermine the potential for collective gains and camouflage underlying structural problems such as exploitative labour relations. In a similar vein, Elizabeth Hurd (2015) is critical of the potentially detrimental effects of transnational human rights promotion. Focusing on the right to religious freedom, Hurd argues that international efforts to strengthen these rights simultaneously ‘mold religions into discrete faith communities, with clean boundaries, clearly defined orthodoxies, and senior leaders who speak on their behalf’, thus privileging a modern liberal understanding of faith (Hurd 2015: 16–17). There is a similarly large literature critiquing the reification of the Weberian state in understanding democratic governance outside of Western Europe (Menkhaus 2007; Vogel 2013). Scholars have used such critiques to push back on tokenistic democracy promotion as an appropriate, effective or ‘exportable’ model of governance in ALS.
Advocates and critics alike paint rather monolithic pictures of the respective successes and failures of human rights, democracy, and rule of law promotion in ALS. In order to do justice to the factual complexity of good-governance (p. 422) promotion, we highlight the multiplicity of outcomes that result from external interventions, whose impacts prove highly unevenly and spatially dispersed. Further, we emphasize the crucial influence of local actors and pre-existing institutions in shaping the outcomes of any governance intervention. Finally, we note that external actors have tended to rely on state-centric conceptualizations of democracy, the rule of law, and human rights.
In most conceptualizations, authoritarian regimes are indeed the primary perpetrators of human rights violations. The rule of law is primarily conceptualized in state-centric terms as the uniform enforcement of legally binding rules within a clearly demarcated territory; and democracy is conceptualized as a system of governance that has pacifying effects on social conflicts as it allows powerful groups within a society to (a) peacefully negotiate compromises and (b) hold individuals accountable through state institutions. As we show in the following three sections, these underlying assumptions do not necessarily hold in ALS. Human rights are not only violated by states but also by a variety of non-state actors; and although states might be willing to respect the human rights of their citizens, they might lack the capacities to do so. Similarly, the rule of law can operate through a multiplicity of non-state justice institutions that display significant degrees of subnational variation. And the narrow definition of democracy as free and fair elections can accelerate rather than diminish violent conflict. While external actors often discard such outcomes as pathological deviations from established global models that will be overcome over time, we argue for more focused attention to local specificities when explaining the outcomes of external governance promotion in ALS.
As principled ideas about the ways in which every individual ought to be treated simply by virtue of being human, human rights have historically centred around the relationship between the state and its citizens (Schmitz and Sikkink 2013: 827). Consequently, much scholarship on the diffusion of human rights has focused on the conditions under which states, firstly, sign on to international human rights treaties and, secondly, start to adjust their behaviour accordingly. Whereas early International Relations (IR) scholarship on the global diffusion of human rights treated states primarily as obstacles to the realization of human rights, recent scholarship has complicated this picture. On the one hand, scholars have highlighted how states might be willing to protect the human rights of their citizens but lack the capacity to do so effectively (Börzel and Risse 2013). The literature further highlights the plurality of possible human rights violators, including non-state actors such as multinational companies (Baumann-Pauly and Justine 2016), armed groups (Wood 2010; Wood and Gibney 2010), or transnational religious networks.
These recent trends notwithstanding, questions about how we get from nominal commitment (human rights treaty ratification or the passage of new human rights laws) (p. 423) to compliance (the implementation of those laws to result in the realization of their protections for civilians) has dominated the literature on human rights over the past two decades. Insights from Risse, Ropp, and Sikkink’s Persistent Power of Human Rights push these conversations further, examining how the international community can move beyond mere window-dressing compliance towards the habituation and internalization of emerging human rights principles (Hafner-Burton and Tsutsui 2005, 2007; Hafner-Burton et al. 2008; Hafner-Burton and Ron 2009; Risse et al. 2013; Simmons 2009).
Key in the movement from commitment to compliance is the mobilization of local actors that pressure government to adhere to the international commitments that they have signed (Keck and Sikkink 1998). Many scholars thus propose that a proliferation of NGOs—or local advocates—is needed in order to translate human rights norms to local practice (Merry 2006; Murdie 2014; Murdie and Peksen 2015; Neumayer 2005). However, arguments about NGOs as a driving force that helps to socialize states into compliance with international human rights norms still tend to work through the apparatus of the central state (Keck and Sikkink 1998; Risse et al. 1999, 2013). With some exceptions, this literature overlooks alternative or non-state-based approaches to strong human rights practice. It similarly overlooks the ways in which NGOs, international organizations and other non-state actors can (and have) bypassed the state when it exhibits weakness. Stephen Krasner refers to such forms of direct intervention as ‘trusteeship’ statehood, in which external actors explicitly set the agenda for human rights practice in specific locales or exert direct influence over local human rights institutions (Holzgrefe and Keohane 2003; Keohane 2002; Krasner 1999, 2004; Lake 2014; Lake and Fariss 2014).
An important deficiency in the existing literature on human rights diffusion, therefore, which proves especially pertinent in ALS, is the heavy emphasis on the state as the primary—or the only—mechanism through which diffusion and compliance can occur. Thus, in addition to continued violations of human rights in contexts with effective state apparatus and strong compliance overall (such as the United States), we can also observe small pockets of effective human rights governance in contexts that the literature would leave us to believe to be immune to the influence of international human rights principles. This can result from strong local institutions that protect and uphold the rights of groups or individuals without the support of the international system (Baldwin 2015; Joireman 2001; Tripp 2013), or it can result from the work of international agencies and NGOs operating in the peripheries and without extensive buy in from central governments (Lake 2014).
We do not suggest that the state does not play an important role in the protection and promotion of human rights. Evidence suggests that it does. Rather, in strong and weak states alike, external actors are likely to face both normative and institutional plurality. State capacity may, therefore, be neither a necessary nor a sufficient condition for the protection of human rights or the diffusion of international human rights norms in the ways that existing scholarship assumes. Pockets of compliance may be visible in ALS, in the same way that actors or locales in strong states may be deeply hostile to specific human rights norms. The extent to which human rights may (p. 424) be protected by non-state justice institutions, for example, is discussed more fully in the subsequent section. Scholars should remain attentive to the specificities and variation within ALS, and what each can tell us about processes of diffusion and compliance more broadly.
Rule of Law
The rule of law is an essentially contested concept that has been circulating through the international system for the past two centuries. Since the latest ‘Rule of Law Revival’ (Carothers 1998) in the 1980s, rule of law interventions by external actors have primarily focused on reforming the state’s legal system in those areas where statehood is limited. The portfolio of activities embraced by external actors has thus regularly comprised investment in judicial infrastructure (e.g. repairing courthouses or purchasing furniture and computers), drafting new legislation, training judges, lawyers, and other legal personnel, building up bar associations, and facilitating international exchanges for judges, lawyers, and administrative staff (Golub 2003: 9).
In recent years, this ‘rule of law orthodoxy’ (Dezalay and Garth 2002) has been increasingly criticized. The driving force behind this critique is a growing consensus among scholars and policymakers that ‘rule of law promotion has produced less than stellar results’ (Zürn et al. 2012a: 314; see also Tamanaha 2011). Thomas Carothers has criticized international donors’ attachment to checklists as well as their proclivity to fetishize particular institutional forms. This has resulted in an ‘ … overattachment to forms and underattachment to principles’ (Carothers 2004: 154; see also Carothers 2006). Similarly, Michael Zürn, André Nollkaemper, and Randall Peerenboom (2012b) have argued that contemporary rule of law promotion is too legalistic, underestimates the sociolegal complexities of receiving contexts, and consequently fails to adequately adjust interventions to varying realities on the ground. In more fundamental terms, Stephen Golub has argued that ‘[t]he international aid field of law and development focuses too much on law, lawyers, and state institutions, and too little on development, the poor, and civil society’ (Golub 2003: 3). Golub (2009, 2010) thus calls for a fundamental shift away from the established rule of law orthodoxy and towards the support of legal empowerment.
Common to these different critical analyses of the rule of law orthodoxy is the diagnosis that the reliance on uniform templates and the exclusive focus on state institutions are inadequate to address the complex challenges of legal reform in ALS. One of the defining features of ALS is the persistence of legal pluralism in the absence of a collision regime. Legal pluralism refers to a situation in which a multiplicity of normative and legal orders overlap and coincide within a given sociopolitical space (Benda-Beckmann 2002). Whereas legal pluralism exists virtually anywhere in the world, in ALS it exists in the absence of a singular authority that would be able to impose a unitary order on the plurality of different legal and normative systems within the territory of the state. As an empirical phenomenon, legal pluralism has been largely neglected by the rather (p. 425) state-centric jurisprudential literature, though notable exceptions do exist (Chiba 2002; Kötter et al. 2015; Menski 2006). Instead, legal pluralism has been mainly discussed in the anthropological literature (Comaroff and Comaroff 2006; Merry 1988; Nader 2002), which has placed a great emphasis on non-state justice institutions (NSJIs). Importantly, NSJIs exist in myriad forms; they vary greatly in size and composition, have different jurisdictions, and draw on multiple normative sources, including for example customary principles, religious precepts, or indigenous cosmologies. Embedded in local relationships of power, NSJIs evolve to reflect broader trends of social transformation within particular contexts (Connolly 2005; Forsyth 2007; Kötter 2015). These relationships might range from proactive attempts by the state to resist non-state justice, to the complete integration of non-state institutions into state judiciaries (Forsyth 2007). In-between these two extremes exists a wide range of formal and informal linkages between state and non-state institutions. One of the most common configurations in ALS is the informal cooperation between state agencies and non-state courts even if the latter are not formally recognized. Marlies Bouman shows in the case of Botswana how ‘chiefly courts are in fact tolerated, or even supported, by the official police forces, although their adjudication activities are in violation of various national laws’ (Bouman 1987: 291). Yet even if NSJIs are formally recognized by the state, as for example in the case of constitutional recognition of indigenous legal systems in many Latin American countries (van Cott 2000), the state’s effective control over the legal dynamics in NSJIs remains rather limited. As a consequence, NSJIs display a great deal of subnational variation; in the absence of an overarching authority, it is local factors rather than national legal frameworks, that define the ways in which NSJIs operate in ALS (see also Chapter 16 Risse, this volume).
The analysis of legal pluralism is not limited to seemingly ‘local’ systems of non-state law but includes the scrutiny of transnational legal influences. As Shalini Randeria has shown, legal pluralism operates across national boundaries. It consists of (i) a multiplicity of (at times contradictory) transnational norms, (ii) state law, (iii) non-state law, for example in the form of customary principles or religious precepts, and (iv) the kind of soft ‘project law’ constituted by the conditionalities of international donor agencies (Randeria 2003, 2007). Recently, international donor agencies have re-discovered NSJIs as potential institutional sites for the promotion of human rights and the rule of law, more broadly (Tamanaha 2015). The growing fatigue with the results of orthodox rule of law initiatives has led to what Deval Desai and Michael Woolcock (2015) from the World Bank’s ‘Justice for the Poor’ (J4P) Programme have aptly called ‘experimental justice reform’. Central to this ‘heterodox approach to justice reform’ is an emphasis on taking context and the rules of the game seriously (Sage et al. 2009). This entails an experimental approach to ‘finding and fitting’ solutions that respond to locally nominated and prioritized problems. Such an approach is juxtaposed and legitimated against orthodox approaches in which universal best-practice solutions (i.e. the legal texts, procedures, and institutional structures that prevail in developed countries) are imported in response to problems determined by external experts (Desai and Woolcock 2015: 162).
(p. 426) There are two strands to this new context-sensitive approach that aims at replacing the established canon of rule of law reform. The first draws on much broader understandings of ‘law in society’ to move beyond the narrow confines of the state’s legal institutions. Justice for the Poor is thus ‘an approach to justice reform which sees justice from the perspective of the poor and marginalized, is grounded in social and cultural contexts, recognizes the importance of demand in building equitable justice systems, and understands justice as a cross-sectoral issue’ (Allen et al. 2013). This includes, for example, the support of paralegals to enhance accountability within Sierra Leone’s healthcare system, substantial action research on the possibilities for a more equitable land governance in Vanuatu, and community empowerment programmes in Indonesia as key projects supported within the J4P framework.
A second stream in the ‘new experimentalism’ has aimed to directly engage NSJIs as sites for the promotion of the rule of law in ALS. Although programming with NSJIs only reentered the international rule of law mainstream with the publication of a comprehensive report by UNDP, UNICEF, and UNWomen on ‘Informal Justice Mechanisms—Charting a way for Human Rights-based Engagement’ (UNDP, UNICEF, and UN Women 2013), informal institutions in the global South have a long history of transnational influences. In their attempts to eradicate ‘repugnant’ local practices, on the one hand, and maintain at least some degree of local legitimacy, on the other, international actors have frequently targeted NSJIs. As Laura Benton argues, this ‘ … often required the creation of “traditional” authority and the reification of legal practices and sources of law that had existed formerly only as fluid elements of a flexible legal process’ (Benton 2002: 128). The kind of NSJIs international donor agencies have recently started to engage are therefore not manifestations of ‘authentic’ or ‘untouched’ legal institutions. Instead, precisely because they are not, or only in a very limited way, regulated by the state, NSJIs tend to be in a constant state of evolution and change, frequently reflecting larger processes of social transformation. In their attempts to engage these institutions, international actors aiming at the promotion of the rule of law are now torn between two impulses: On the one hand, NSJIs are considered to be fast, efficient, and quite often enjoy higher degrees of legitimacy than state-backed court. On the other hand, NSJIs have been frequently criticized for their patriarchal biases and the overall perpetuation of unequal power relations in violation of basic human rights and rule of law standards. International donors are thus confronted with the question of how to maximize the perceived advantages of non-state courts without perpetuating their perceived short-comings (Berger 2017b).
In most cases, international donor agencies address these challenges by insisting on some, albeit minimal, degree of oversight through state institutions that ought to ensure adherence to basic international normative standards. This might include the imposition of procedural requirement, the circumscription of jurisdiction, or the judicial supervision of non-state institutions through state agencies (Kötter 2015). This, in turn, also involves the bureaucratization of NSJIs as only specific practices of documentation allow for the kind of oversight international agencies envision (Berger 2017b). For these agencies, it therefore almost seems inconceivable to engage non-state (p. 427) institutions without at least nominal references to the state’s judiciary and some of its constitutive practices. These necessary links with state judiciaries notwithstanding, programming with NSJIs in ALS generally aims for a high degree of context-sensitivity and eschews ‘one-size-fits-all’ approaches. The greater appreciation of context-specific knowledge has facilitated enhanced dialogues between practitioners and scholars of various disciplines (Golub 2010; Kötter et al. 2015; Tamanaha et al. 2012). It has also informed programming. In his analysis of one of the most comprehensive donor-sponsored projects with NSJIs as they exist today, Tobias Berger (2017a) has shown that projects with village courts in Bangladesh can empower poor and marginalized people in processes of conflict resolution. Yet, they do so only if they are implemented by local NGOs that translate donor-understandings of the rule of law in ways that resonate with the experiences of people in rural Bangladesh. Instead of integrating the village courts into the state’s judiciary, as anticipated by international donors, the grassroots level staff of local NGOs introduce the village courts as yet a further informal institution in the complex legal landscape of conflict resolution in rural Bangladesh. Rather than using the official documents provided by the European Union and UNDP to orderly keep village courts records, NGO fieldworkers use these documents as symbolic capital that allows poor and marginalized people to access local authorities they could not have otherwise accessed. And instead of promoting the rule of law in the secular vocabulary of international agencies, the fieldworkers translate this into specific interpretation of Islamic law and community harmony. In sum, the grassroots level employees of the local NGOs tasked with the activation of village courts significantly improve the standing of poor and marginalized people in rural Bangladesh precisely because they do not promote the rule of law in the ways in which international actors understand it.
Processes of translation unfold not only in the context of donor-sponsored programmes with NSJIs. In the field of orthodox rule of law programmes with state institutions, the translation perspective offers novel insights into recursive interactions between global norms and specific local contexts. As Lisbeth Zimmermann (2017) has shown in her analysis of the promotion of children’s rights, access to public information, and an international commission against impunity in Guatemala, international rule-of-law programmes trigger domestic contestation, thereby changing the approach taken by external actors, and ultimately fuelling a process in which global templates are locally translated (see also Chapter 17 Hönke/Müller, this volume).
Any examination of rule of law architecture in ALS thus demonstrates that a great deal of subnational diversity and disaggregation exists. Yet pre-existing dispute resolution mechanisms are rarely (or never) evenly distributed. Indeed, across parts of rural sub-Saharan Africa, vastly different customary institutions can be found under the same juridical state (Baldwin 2015). It is important to acknowledge that what is understood as customary law by activists in the global North is often, itself, a curious hybrid of colonial-era adaptation (Spear 2003). Yet, local actors nevertheless wield a considerable degree of power and influence in shaping local dispute resolution in ALS, and therefore in determining the reception and integration of externally promoted programmes.
(p. 428) As with human rights, scholars should also be wary of assuming greater resistance or barriers to implementation in the absence of consolidated statehood. Indeed, in her work in eastern DR Congo, Milli Lake (2014) found that precisely because the state was weak, rule of law practitioners have been able to exert disproportionate influence over legal processes in ways that may not have been possible were the state stronger. On this point, we have seen considerable opposition to aspects of international rule of law programming in countries such as Zimbabwe and South Africa, and to an even greater extent in strong autocracies such as China, North Korea, or Singapore, where state strength means that international actors have very few entry points to exert influence or engage in rule of law promotion at all. The role that local actors and the state play in shaping or contesting rule of law diffusion is therefore deeply contingent. As in any context, local actors may appropriate global templates to give the appearance of compliance and implementation while entrenching pre-existing hierarchies of power (Lake 2017). They may instrumentalize international programmes to pursue overlapping personal, political, or social agendas. Or they may utilize global templates to confront or challenge hegemonic power structures. Whatever their motives, local actors demonstrate substantial agency in shaping the outcomes of international rule of law promotion in ALS, as elsewhere. The agency and influence of local actors is not necessarily determined by state strength.
Having come to a standstill throughout much of the Cold War, US democracy promotion accelerated in the 1980s when the Reagan administration included the promotion of democracy as a key pillar of US foreign policy. Key stakeholders in these efforts include the US National Endowment for Democracy, the Latin American Bureau of the USAID, and the International Foundation for Election Systems (Babayan and Huber 2012: 6; Carothers 2015: 78). After the end of the Cold War, the Clinton administration elevated democracy promotion to one of three major foreign policy priorities. Clinton also enhanced funding, institutionalizing democracy promotion in US foreign assistance programmes (Babayan and Huber 2012: 6). Besides USAID and other government agencies, the Ford Foundation, the Rockefeller Brother’s Fund, and the George Soros Foundation became key actors in the field of international democracy promotion, especially in ALS (Encarnación 2011: 471). On the other side of the Atlantic, European actors have also channelled billions of dollars into external democracy promotion via the European Institute for Democracy and Human Rights, the Organization for Security and Co-operation in Europe (OSCE), development assistance programmes of EU member states, national foundations, and NGOs. European and American stakeholders do not differ significantly in their tactics and approaches to the promotion of democracy in ALS (Magen et al. 2009).
Whereas international rule of law promotion has tended to focus primarily on state institutions, the promotion of democracy through bi- and multilateral donor agencies (p. 429) historically emphasized the support of civil society. Inspired by de Tocqueville’s account of voluntary associations as the bedrock of American democracy, scholars emphasized the importance of civil society for the flourishing of democratic life. Focusing on one area of limited statehood par excellence, Robert Putnam’s (1993) study of civic traditions in modern Italy quickly became the foundational text for scholars highlighting the transformative potential of civil society (Encarnación 2011; see also Chapter 18 Draude et al., this volume). Among policymakers, support for civil society quickly turned into the preferred strategy for promoting democracy. Complemented by election monitoring and the building of institutional capacity in national judiciaries and parliaments, civil society organizations thus assumed a key role within the three-tiered framework through which international donor agencies approached the promotion of democracy in ALS (Carothers 2015: 70–80).
In liberal accounts, civil society is the space where relationships between the state and its citizenry are mediated so that the former is held accountable to the latter (Williams and Young 1994). Civil society is thus understood as ‘the realm of organized social life that is voluntary, self-generating, (largely) self-supporting, autonomous from the state, and bound by a legal order or set of shared rules’ (Diamond 1994: 5). Yet in their attempts to promote democracy in ALS, international donor agencies have operated with a severely impoverished account of civil society. Neglecting the multiplicity of actors that comprise civil societies in ALS, existing scholarship has too frequently focused almost exclusively on NGOs. Yet in highly aid-dependent countries, the exclusive focus on NGOs reverses lines of accountability, away from domestic audiences and towards international donor agencies (see also Chapter 17 Hönke/Müller, this volume). In her case study of the booming NGO sector in Bangladesh in the 1990s, Sarah White (1996, 1999) has shown how increasing dependence on foreign funding has undermined the capacity of non-governmental originations to articulate political vision in line with grassroots demands (see also Karim 2011; Lewis 2004). Similarly, the essays collected in John and Jean Comaroff’s 1999 volume have analysed the contradictory effects that donor-sponsored attempts to ‘build’ civil society had in different contexts across sub-Saharan Africa.
Following the rather perfunctory model of democracy promotion in the 1990s, most recent developments have indicated a greater attentiveness to local contexts. As Thomas Carothers argues:
At least some civil society development work has evolved beyond the romanticism and superficiality that marked much of this kind of aid in the 1990s. Back then, elite advocacy groups tended to attract the most donor support, even when they lacked sufficient rootedness, local legitimacy, and sustainability. Today, some aid organizations do things differently. They are emphasizing the need for local civil society to focus on constituency building, striving to reach groups beyond the narrow range of Westernized donor favorites, giving local groups means and incentives to find their own local sources of support, and working to ensure that outside aid spurs cooperation rather than infighting within the local civil society scene. (Carothers 2015: 81).
(p. 430) The extent to which recent attempts by external actors to ground democracy promotion in local political processes will succeed to move beyond the narrow confines of elite civil society remains an open yet important question. Especially in post-conflict contexts, the ill-conceived promotion of unsuitable institutional templates may not only fail to deliver the desired results but actually have negative repercussions.
A burgeoning new body of scholarship has thus called some of the underlying assumptions of democracy promotion into question by showing how countries emerging from civil war or autocracy are heavily incentivized to embrace and adopt a host of new democratic institutions. Elections held in such settings are expected to aid in the transition from contexts of repression or relative anarchy, to environments of predictable, rule-governed behaviour, in which political disagreement can be mediated through the ballot box and through formal institutional channels, rather than through violence. Yet Thomas Flores and Irfan Noorudin have cast doubt on these assertions, suggesting instead that rapid transitions to democracy are fraught with danger (Flores and Nooruddin 2012, 2016). Highlighting the rapid proliferation of what have been termed ‘nominal’ democracies—or, the phenomenon in which elections are held, but representation, democratic integrity, and a lack of political interference remain elusive—the authors posit that, rather than hindering a return to conflict, a rapid-fire transition to elections in the immediate aftermath of a peace accord can, in fact, exacerbate political tension and hasten a return to violence. Flores and Nooruddin note that the inability of post-conflict politicians to credibly commit to respecting new electoral institutions suggests that their implementation could exacerbate the security dilemma by heightening mistrust in an already volatile political environment. Unless institutions can be built slowly and carefully over time, and include the buy-in, confidence, and genuine investment by warring factions, they will do little to stave off a return to arms in the face of uncertainty.
Finally, even in contexts that do not face the risk of imminent resurgent violence, questions prevail concerning the extent to which fragile democratic institutions in ALS are able to deliver on their promises to ordinary citizens. Even when ostensibly democratic elections are able to stave off a return to arms, there are a growing number of nominal democracies around the world that exist in a state of uncertainty; are unwilling to commit to promises of free or regular elections; and are unwilling to uphold the fundamental rights of their citizens. In such contexts, freedom of speech may be curtailed, a free press may be muzzled, political opposition suppressed, and scheduled elections delayed. In ALS, it seems premature to label the nominal existence of elections as a success of ‘democracy promotion’ interventions.
Given that consolidated statehood is, historically speaking, the exception rather than the rule, international donor agencies need to critically scrutinize at least some of the (p. 431) state-centric assumptions underpinning human rights, rule of law, and democracy interventions. This reorientation involves the acknowledgement that local scripts, which shape and determine the fluid realities of governance in ALS and elsewhere, require serious consideration. Indeed, the expectation that low state capacity necessarily leads to poor outcomes in the arenas of human rights, rule of law, and democracy promotion derives from a troubling absence of high-quality subnational data, in addition to a disturbing lack of nuance concerning the realities of local governance. More careful analysis reveals that well-resourced international organizations can utilize gaps created by the absence of functional state infrastructure in order to assume direct responsibility over tasks normally under the jurisdiction of the central government, shaping human rights, rule of law, and democracy interventions in previously underexplored ways. Moreover, fine-grained data show that local actors shape and transform the global governance scripts of external actors, wielding considerable influence over their local implementation. It is thus necessary to recognize that local stakeholders, and local context, shape the realities of governance interventions by external actors in both strong and weak state environments alike. The different ways in which local actors mediate the influence of external governance programmes in ALS should be a subject for further inquiry. However, it should not be assumed that the mere absence of consolidated statehood determines outcomes uniformly.
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