Issues, actors and actions: questioning international cooperation, operators and justice.
The last decades have been marked, (notably with the development of the EU’s legal regulations and legal tools), by a rise of a universalist legal doctrine. We are increasingly speaking of near universal and uniform laws including standards and general principles considered to have been acknowledged and acquired by all states and their respective judicial systems. With the aim of bettering the world international cooperation seem to be a natural activity following globalisation and rights’ awareness. It serves as a motivating factor for cooperation amongst actors and donors in setting up and financing cooperation projects in the field of governance generally, and more specifically in the “Justice sector.”
Arab societies are very much considered as the beneficiaries and recipients of these projects. The resurgence of interest towards the role the legal systems and judiciaries play in Arab societies is at its height. The objectives of international reform projects are perhaps described best as emancipatory in their aims. Projects range from efforts in ‘modernizing’, existing legal systems, to allow for market-friendly legal systems.1 Since the Arab spring, the institutionalist revival of judicial reform projects have increased. The extraordinary attention paid to the legal institutions have been materialized in to a myriad of projects led by the EU, NGOs, IOs, governments, academics and policymakers alike. They seek to better the Arab administration of justice within and outside the legal system. Expected results of these projects are usually based on a democracy promotion approach that includes an enhanced institutional capacity and greater transparency and efficiency in the judicial sector. We are told that justice will be efficient and better yet, despite this some concerns still lingers.
The questions we want to put forward in this debate matter, and perhaps more so because the answers are potentially numerous as well as uncertain.
First, we need to identify the main actors involved in these projects. Some are more straightforward than others. For example:
- International Organizations like the United Nations or the European Union,
- Governmental organizations, like USAID, AFD,
- Non-governmental organizations.
Second, can we assume that those who finance these international reform projects are the same as those who implement them on ground? Their implications of this is that whoever operates on the ground will have an impact on the lives of people in the countries.
Third, what are the underlying reasons behind these projects? Are there other reasons than those introduced above, or are there more specific agendas that we have not yet identified? The increasing professionalization of foreign reform projects seem are riddled with agendas that might not be so straightforward.
- Is it really for a better world and by belief in fundamental values that are destined to be universal?
- Or is it solely for the purpose of political and business interest?
And finally, what we consider is the biggest question is the manner and mode in which these projects actually done.
- How are they implemented?
- Do they take into account the peculiarities of each Arab society?
- Are implementations based on objective, empirical knowledge or otherwise?
- Does this implementation really serve the development of justice in the beneficiary countries?
- Do we care about the ratio legis?
- Do we have the same definitions of the great principles of universal law and justice? Do we speak the same legal language in the first place?
- Is international legal cooperation at all compatible with the legal traditions it claims to help?
Topic A. Problems of universal terminology and tendencies of generalisation.
We have universal conceptions of what constitutes effective and impartial justice. For example, the UN Basic Principles on the Independence of the Judiciary set out a set of principles from which “all countries should take inspiration and implement the necessary measures to enforce them”2. Some of these principles are well known, such as the independence of the judiciary, the rule of law and the freedom of expression and assembly of judges. However, what is the meaning of these notions? And more importantly, with what other principles can we compare them?
Subtopic 1: The issue of universal terminology and the issue of generalization
We have universal ideas of what constitutes an effective and impartial judiciary. For example, the UN Basic principles on the Independence of the Judiciary have set out a set of principles ‘every country should be inspired and undertake efforts to translate them fully into reality. Some of these principles are well known, such as the independence of the judiciary, the rule of law and the freedom of expression and assembly for judges. Yet, what does these notions actually mean? And perhaps more importantly, what are we comparing them against? We tend to generalize the region as a whole – with little regard for the variations amongst countries.
Attention is routinely given to standard problems’ and there is a general failure in addressing the diversity of the region. While the ideal is defined internationally, the several methods used in realising the ideals often lack validity, objectivity and more importantly, legitimacy. They fail to take account the unique context in which these legal systems are found.
Subtopic 2: Bureaucracy problems of judicial reforms
There are NGO and IO agendas that may not always fit the actual problem. Reform projects are usually pursued through specific agenda lenses. This can be seen in the way the executive is almost certainly emphasised: “The human rights movement foregrounds harm done explicitly by governments to individuals or groups leaving largely unaddressed and more legitimate by contrast harms brought about by governments indirectly or by private parties”. A more controversial question is the following: Is the human rights bureaucracy itself part of the problem?
1 Matthew STEPHENSON, “Judicial Reform in Developing Economies: Constraints and Opportunities”, 2007, [En ligne], http://www.law.harvard.edu/faculty/mstephenson/pdfsNEW/JudicialReformABCDE.pdf
2 Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985, [En ligne],http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx
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