Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms

9. International Imposition and Transmission of Democracy and the Rule of Law: Lessons from Central America

CHAPTER NINE International Imposition and Transmission of Democracy and the Rule of Law Lessons from Central America RACHEL BOWEN Guatemala and Nicaragua both have struggled to achieve the rule of law within an internationalized context. Because of their acceptance of rule-of-law aid from international donor groups, they cannot readily escape from international directives from their benefactors. These international directives are informed by international norms of the rule of law. In order to understand the adoption of the rule of law in practice by a country, we must first understand the rule of law as a set of norms, how they are adopted, and how they spread. These norms guide international actors with diverse goals but have a common core of understanding involving equality and rights protection. The rule of law is transmitted internationally through the coordinated efforts of domestic and international actors who put pressure on a country to comply with its norms. Without such pressures, countries are unlikely to adopt the rule of law. However, they are also unlikely to commit seriously to the rule of law when faced solely with international pressure without also facing domestic pressure. Guatemala is an example of a country with domestic activists who have worked closely both with the judiciary and with international actors. Nicaragua’s domestic activists have been much less networked than have Guatemala’s and much less committed to the rule of law. 161 162 GLOBALIZING JUSTICE I argue that the rule of law is only possible after a state has made a profound moral commitment to the norm of the rule of law, to which it is propelled by the actions of domestic and international activists. This chapter gives consideration to the international movement in support of the rule of law. In so doing, I consider both global trends in the adoption of the norm of the rule of law as well as domestic progress within both Guatemala and Nicaragua. The first section of this chapter addresses the spread of one norm of the rule of law: the trend toward the judicialization of politics around the world. The second section examines the international transmission of norms in general, using the literature on human rights norms as its guide. The final two sections catalogue the adoption of the norm of the rule of law in Guatemala and Nicaragua, following a spiral model adopted from the human rights context. THE GLOBAL SPREAD OF THE JUDICIALIZATION OF POLITICS There has been an expansion of judicial power in many countries, which is related to the global spread of the rule of law. Many judiciaries have begun in recent years to turn their attention toward an expanding sphere of influence , including the confrontation of political issues.We see this in high-profile conflicts of judges with executives and in the exercise of more regulatory power by judges. We also see it in countries as diverse as Italy and Namibia, suggesting that a truly global phenomenon is afoot. There is a small body of literature that focuses on this trend.This section outlines the literature on the judicialization of politics and then places it in the context of a norm of the rule of law. The trend of the judicialization of politics is truly widespread.1 The weakness of this literature is shown in its failure to provide an explanation for how this trend has moved from country to country and why it seems to be gathering steam. Tate and Vallinder2 take up the issue of the judicialization of politics or the “global expansion of judicial power.”Vallinder3 defines the judicialization of politics as either the expansion of the province of courts into areas of politics that were previously not their province or the spread of judicial decision-making methods to nonjudicial political processes. In short,“judicialization essentially involves turning something into a form of judicial process.”4 This expansion of judicial power reflects a global movement toward the rule of law. Judicialization is an important mechanism by which one part of the state (the courts) begins to enforce the rule of law as against everyone in society, as well as other parts of the state. The expansion of judicial power frequently will be necessary in order to ensure the enforcement of those rights protected in international norms and deemed essential to the strengthening of the rule of law. 163 INTERNATIONAL IMPOSITION Domingo5 expands on the...