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The Rule of Law, Sustainable Economic Development and Sustainable Peace

Panel Presentation by Professor the Hon Gareth Evans to Bangkok Dialogue on the Rule of Law, Investing in the Rule of Law, Justice and Security, Royal Thai Ministry of Justice/Thailand Institute of Justice, Bangkok, 15 November 2013

I want to focus in my remarks on the relationship between the rule of law and sustainable economic development in the particular context of conflict prevention, where the aim is both to stop violence erupting in the first place, and - in the aftermath of crisis or conflict - to stop it happening again. In both these situations there is an inextricable connection between the rule of law, sustainable economic development, and achieving sustainable peace. The connection between peace and development is mentioned in the UN Secretary-General’s July 2013 report on advancing the Millennium Development Goals after 2015, but it is worth spelling it out in a little more detail.

When it comes to identifying the causes of conflict, grand generalizations are no substitute for detailed on-the-ground fieldwork. The basic point about conflict, as I have learned from many years as a practitioner both in government and a leading international NGO, is that it is always context specific. Many different factors may be at work — political, economic, cultural, personal — in each particular risk situation.

As to the extent to which poverty as such causes deadly conflict, one has to be particularly careful. Given that nearly half the world’s population is living on less than $2.50 a day, if severe economic deprivation was by itself a direct cause of violent conflict or mass atrocities, the world would be even more alarmingly violent than it is now. But, that said, it is not very plausible to suggest that there is no connection at all. There is every reason to accept that economic decline, low income, and high unemployment are contributing conditions: either directly, by fuelling grievances among particular disadvantaged or excluded groups, or indirectly, by reducing the relevant opportunity costs of joining a violent rebellion.

One generalisation we can certainly make about conflict is that the countries and regions most likely to lapse into it are those that have been there before: every post-conflict or post-crisis situation contains the potential seeds of the next round of destruction. What follows from that, and this is much better recognized now than it was in earlier decades, is that far more effort has to be put into consolidating the peace after it has been won.

The conflict containment structures and capacities that need to be applied in a post-conflict environment, to prevent violence recurring, are essentially exactly the same as those that need to be applied in fragile, failing or failed states to prevent violent conflict breaking out in the first place. The focus in each case must be on structural prevention — building institutional structures and processes (not only legal, but political, military, economic and social) which are capable of relieving non-violently all the crucial stress points that arise between individuals and groups.

My view is that there is nothing more important to get right than rule of law, justice and governance structures and processes. In the nearly two decades that I spent as, successively, Australia’s Foreign Minister, and then President of the International Crisis Group – wrestling in practice with problems of development, state fragility, and especially the prevention and resolution of deadly conflict – I don’t think there is any conclusion I came to more clearly than the absolutely central importance of these factors.

Reduced to its basic conceptual essentials, respect for the rule of law means the non-arbitrary exercise of state power, in accordance with laws that are clear and non-retrospective; the subjection of the institutions of the state themselves to law; and the application of the law to all persons equally.

In translating this into practice the essential needs (whatever the particular system adopted or particular rules embraced), are for adequately resourced courts with effective administrations; well-trained, honest, and independent judges and legal professions; procedural systems that allow matters to be dealt with quickly, fairly and justly; access to and affordability of basic legal remedies; and clear and reasonable legal rules, not least those governing commercial transactions.

An essential but often overlooked building block for sustainable economic development is the effective protection of private property rights, and particularly the protection of intellectual property (IP). Without that the confidence will simply not be there in crucial sectors to make the necessary long-term investments. The application of the rule of law in this area above all is very good for productivity, very good for trade and very good for sustainable economic growth.
Strong competition policy and market liberalisation are important parts of the story too, but the effective protection of IP rights is crucial in reassuring foreign investors and in seriously encouraging research and development. Strong IP protection encourages firms to set up local production in high value manufacturing and service industries for domestic consumption and export, rather than just local distribution centres. As the experience of countries like South Korea has demonstrated, this has the potential to make the difference between limping along as an agrarian economy and becoming an industrial powerhouse.

I first became really acutely conscious of the centrality of all these rule of law needs, not only for long-term development generally, but particularly in the specific context of the aftermath of national trauma, when I was closely involved in the formulation and implementation of the Cambodian peace plan in the early 1990s. We got many things right there, but developing institutions and processes to generate real respect for the rule of law was badly underdone, and it took a long time for the situation to begin to be addressed.

At the International Crisis Group we learned very early on that in these transition situations there were multiple objectives that had to be pursued simultaneously. Physical security might always have to be the first priority, but it certainly can’t be the only one, and in particular creating, or re-creating, a viable justice system and respect for the rule of law, and above all in this context the governance conditions for economic development, with really effective anti-corruption measures and investment-encouraging measures, deserve higher priority than they have in the past been given.

Afghanistan is one of the clearest examples of the last decade, with the international efforts to help create an effective police and court system having been, at least until very recently, hopelessly and lamentably inadequate.
All this has become much more understood and accepted by policymakers in recent years. A growing convergence between security and development agendas has been apparent in the post 9/11 period with increased emphasis among donors and international agencies on the need to strengthen legal, judicial and law enforcement capacities in fragile and post-conflict states.

The World Bank and regional development banks, along with bilateral donor agencies and international agencies such as the European Union and United Nations Development Programme (UNDP), have become increasingly involved in legal and judicial reform right across the spectrum of developing, post-conflict and transitional national contexts. Today, virtually every developing country is the recipient of one or more internationally sponsored projects or programs designed to strengthen their legal systems and institutions.

But for all the increased activity, and all the improved understanding of why it is important, I don’t think there is anyone who believes that we have it all right. That’s why this Dialogue is so important, focusing the world’s attention on the issues, the problems and the practical strategies needed to address them. I thank the Royal Thai government and everyone associated with this conference for the opportunity to join you in this important discussion.