ABSTRACT

Post-conflict state building and peace building engage in the areas of security, political transition and governance, socio-economic development, and justice and reconciliation. Formulating and reforming legal frameworks is one of the areas where donors provide assistance to facilitate political transition and democratization through the establishment of the rule of law. This normally involves integrating universal norms, including human rights and international transaction rules, and has been considered crucial as the foundation for the transition to stability, democracy and a market economy. It is, therefore, enforced by many donor agencies and international financial institutions such as the World Bank and the International Monetary Fund. While more than US$1 billion was spent in an effort to establish the rule of law in countries recovering from conflict and fragility in recent decades (Mani 2008, 33), it has not only proven difficult to institute the rule of law appropriately, but has also been unclear as to its contribution to post-conflict peace building and economic growth as subscribed as the benefit of rule of law (Shiga 2013). Rather, emerging studies in this area have revealed mixed results, at best, in the rule of law assistance in post-conflict transition (Mani 2008, 33). This ineffectiveness of the international efforts can be partly attributed to

the fact that the process of building or reforming the judicial system is largely under-studied and under-explained (Santiso 2003, 113). While the definition of the rule of law remains elusive, two versions of the rule of law formulations, namely formal theory and substantial theory, have been suggested (Tamanaha 2004). The substantial theory differs from the formal theory by including requirements for the contents of the law to be consistent with universal norms and values such as human rights. These different models have different implications for assistance in the judicial system. One of the criticisms of inefficient international interventions to the rule of law points to the dominance of the formal approach in donor assistance. Much rule of law support tends to take an ‘apolitical’ and ‘technical’ stance, in which donors ‘focu[s] on institutional attributes and reforms that replicate Western-style institutions in non-Western contexts’ and avoid ‘substantive and sometimes

politically contentious reform’ (Mani 2008, 38). Meanwhile, when donors try to take the substantial approach, they often face the intractable challenge of how to balance the conflicting demands of respecting the ownership of aid recipient countries and achieving universal norms and values (Shiga 2013). Human rights are one such group of universal values that frequently

engender conflict with local customary norms and practices. Human rights are defined as ‘rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible’ (OHCHR n.d., para. 1). The ‘universality’ of human rights was initially highlighted in the Universal Declaration on Human Rights in 1948 and then enacted through subsequent international human rights law and various other conventions, treaties and laws (OHCHR n.d., para. 3). Therefore, human rights have been the standard that donors and international institutions have in mind during their rule of law interventions in countries in post-conflict transition (Stromseth 2006, 384). Endorsing human rights demonstrates a particularly complex dilemma in the substantial approach since donors consider human rights as a fundamental underpinning of the rule of law, and therefore, their protection and promotion are a natural and inevitable part of the substantial approach (Mani 2008, 27). This chapter presents an empirical analysis of such a dilemma in sub-

stantial rule of law interventions through a case study of Japanese assistance in post-conflict Nepal. It examines the experience of the Japan International Cooperation Agency (JICA) in supporting the Civil Code drafting process in post-conflict Nepal. JICA is the implementation agency of Japanese official development assistance (ODA) and one of the largest bilateral aid agencies in the world, with an annual disbursement of $12 billion (JICA 2012a). Its assistance to Nepal in drafting a Civil Code started in 2009 as part of the programme for peace building and steady transition to democracy, which was going through its state-building process following the end of the ten-year civil war in 2006. JICA took a substantial approach in the assistance, upholding the most important philosophy of Japan’s ODA to support ‘self-help efforts of developing countries’, or self-ownership of the process (MOFA 2003, para. 2). During the Civil Code drafting process, JICA’s law experts went through the whole Civil Code, clause by clause, with a Nepalese counterpart in order to develop a Civil Code that is consistent with international standards and in harmony with the Nepalese cultural climate (JICA 2012b). They faced a dilemma, however, in endeavouring to incorporate human rights as a universal norm. This chapter draws on the localization framework proposed by Acharya

(2004) for its analytical approach. Localization is defined as ‘the active construction (through discourse, framing, grafting, and cultural selection) of foreign ideas by local actors, which results in them developing significant congruence with local beliefs and practices’ (Acharya 2004, 245). It presents a

unique perspective on why and how transnational norms are diffused, by moving from a simple to a more nuanced understanding of the relationship between ‘norm taker’ and ‘norm entrepreneur’. The role of norm entrepreneur, or an agent who spreads and institutionalizes a new norm in a society where the norm is regarded extraneous, tends to be vested in a transnational actor, while a local actor is only regarded as a norm taker or a recipient of a new norm. In contrast with this dichotomy between ‘domestic’ norm taker and ‘foreign’ norm entrepreneur, ‘the localization perspective calls for a shift in the understanding of norm entrepreneurship from “outsider proponents” […] to “insider proponents”’ (Acharya 2004, 249). The localization framework offers three important ideas about how human

rights as a foreign norm was adapted and incorporated into the drafting process of the Civil Code in Nepal. First, the new political order in Nepal, which had emerged from the 240-year Kingdom of Nepal, needed ‘to import ideas about human rights promotion and assistance as the basis of their foreign policy because such ideas would legitimize their authority and new identity’ (Acharya 2004, 247). Second, in this attempt to integrate the human rights norms in the Civil Code, Nepal as norm taker went through the process of ‘cultural selection’ by omitting certain features (Acharya 2004, 245). Third, there were several opportunities encouraging localization of human rights norms in Nepal: the pre-existing local norms in Nepal were deep-rooted through religion, culture and long history, and needed transformation; there were credible local actors ‘with sufficient discursive influence to match or outperform outside norm entrepreneurs operating at the global level’ (Acharya 2004, 248) whose roles were filled by Nepalese counterparts as well as JICA; and there was an unyielding sense of identity (Acharya 2004, 249) that is shared by Japan and Nepal for their culture and traditions upholding their distinct values as well as aspiring to advancement. What this case study illustrates is that it was both the Japanese aid provi-

ders and their Nepalese counterparts who produced institutional change (Acharya 2004) in the country’s Civil Code through mutual consultation. Furthermore, what makes the case especially unique is a dual role that JICA, a foreign actor, played in the process. In this role, JICA was a transnational norm entrepreneur, who tried to introduce a universal norm of human rights into the Nepalese Civil Code, but it was also to some degree a norm taker as human rights being a norm of Western origin was extraneous to Japan but imported in the process of the country’s modernization. Therefore, unlike other transnational norm entrepreneurs, JICA was not a

pure ‘norm entrepreneur’ and was confronted with a dilemma in respect of the ownership of the aid recipient. While the Nepalese Civil Code that was drafted has not been promulgated, the chapter reveals valuable insight into the localization of the international human rights norms in non-Western contexts. It also provides a critical view on the prevailing aid agendas and approaches applied in bringing the rule of law to fragile post-conflict societies.