!
RAFÂA BEN ACHOUR*
THE RULE OF LAW AND THE RULE OF JUSTICE IN
INTERNATIONAL CONVENTIONS AND DECLARATIONS
SUMMARY: 1. Introduction. - 2. The Rule of Law and the Rule of Justice are accredited Principles and Goals
in International Conventions and Declarations. - 2.1 Implicit and Modest Articulation in International
Charters and Universal Declarations. - 2.2 Explicit Stipulations in the Regional Charters. - 3.
Mechanisms and Tools for stipulating the Rule of Law and the Rule of Justice in International
Charters and Declarations. - 3.1 Legislative Mechanisms. - 3.2 Practical Mechanisms and Processes.
1. Introduction
The terms of the title of this article refer to the two branches of public law:
constitutional law for the rule of law1 and the rule of justice, and the public international
law for international conventions and declarations. However, it must be acknowledged that
since the end of the Cold War, the barriers between the two branches of law have receded,
and are at the moment overlapping each other to the extent of generating discourse about
constitutionalizing the international law2 and internationalizing constitutional law3. Many
legal terms hitherto preserved for the Dictionary of Constitutional Law, such as rule of law,
democracy and good governance, has become common terminology in public international
law as well. The reasons for that are the transformation of international relations and the
development of public international law.
Public International law, which has been consolidating the constitutional autonomy
of States and their absolute sovereignty in the choice of their political, economic, social and
cultural systems, and has been considering the question of the relationship between the
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*
Distinguished Professor at the University of Carthage (Tunisia). Judge of the African Court on Human and
Peoples’ Rights.
1 Rule of Law in English.
2 A. PELLET, Constitutionalisation of the UN law or triumph of dualism, in http://www.alainpellet.eu/Documents/P
ELLET%20-%202009%20%20Constitutionnalisation%20du%20droit%20des%20NU%20ou%20triomphe%
20du%20dualisme.pdf
3 R. BEN ACHOUR, The Rule of Law and International Law, Leaders, October 6, 2010.
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State and its two perspectives at the heart of its sovereignty, started to attach great
importance to these issues and to see them as subject to the supervision of the
international community. It exerts utmost keenness to strengthen and respect human rights
and consolidates the rule of law and the rule of justice, considering them as fundamental
principles of law.
The United Nations defines the rule of law as «a principle of governance in which all
persons, institutions and entities, public and private, including the State itself, are
accountable to laws that are publicly promulgated, equally enforced and independently
adjudicated, and which are consistent with international human rights norms and standards.
It requires, as well, measures to ensure adherence to the principles of supremacy of law,
equality before the law, accountability to the law, fairness in the application of the law,
separation of powers, participation in decision-making, legal certainty, avoidance of
arbitrariness and procedural and legal transparency».
Justice is defined as «an ideal of accountability and fairness in the protection and
vindication of rights and the prevention and punishment of wrongs. Justice implies regard
for the rights of the accused, for the interests of victims and for the well being of society at
large. It is a concept rooted in all national cultures and traditions»4.
All of the aforesaid leads us to reflect on how international charters and declarations
have addressed the terms rule of law and the rule of justice. We shall highlight in the first section
how the rule of law and the rule of justice have been coded in international conventions
and declarations; and in the second section we shall point out the mechanisms devoted to
the rule of law and the rule of justice in international charters and declarations. .
2. The Rule of Law and the Rule of Justice are accredited Principles and Goals in International
Conventions and Declarations
Regardless of the differences in the formulation of the expressions used, most
international charters and declarations consider the rule of law and the rule of justice as
targets, which countries aspire to achieve at national and international levels, or as a
principle backed by national and international political and legal systems. Although the
articulations of these principles are implicit or modest in most international conventions
and universal declarations, regional conventions are more precise and better articulated in
these matters.
2.1 Implicit and Modest Articulation in International Charters and Universal Declarations
Although they have not explicitly and clearly mentioned the rule of law and the rule
of justice, the majority of international conventions and universal declarations particularize
the rule of law and the rule of justice as two principles and goals necessary to achieve
respect for the rights of individuals and groups. The Universal Declaration of Human
Rights, adopted on 10 December 1948, the two international covenants relating to human
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4
Report of the Secretary General of the United Nations, 24 August 2004: The rule of law and transitional justice
in conflict and post-conflict societies.
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rights and the Charter of the United Nations Organization establishing the United Nations
Educational, Scientific and Cultural Organization (UNESCO), evidences this.
a) The Universal Declaration of Human Rights adopted on 10 December 1948
Although included in a recommendation issued by the United Nations General
Assembly, the Universal Declaration of Human Rights adopted on 10 December 1948 is
considered the main reference for the legal system of human rights or the International Bill
of Human Rights5. Due to its importance, it has been elevated to the status of a binding
international customary law.
Many constitutions have taken cognizance of this Declaration Despite the nonavailability of the terminology of rule of law and the rule of justice when the Declaration was
adopted at the end of World War II, the declaration included references to the two terms
of the subject of our research. The preamble indicated in reference to the rule of law that
«it is necessary that the law shall protect human rights in order not to push the person at
the end of the matter to revolt against tyranny and injustice».
As regards the rule of justice, the Universal Declaration was more detailed. It says in
the eighth article: «Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted to him by the constitution or by
law». Moreover, Article X states «Everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him». Thus, the Universal Declaration laid
the foundations that subsequent mechanisms will build upon, particularly those relating to
the two International Covenants on Human Rights.
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5 The Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10
December 1948, as a result of what the world went through in terms of the scourge of World War II. After
the establishment of the United Nations, world leaders decided to complement the Charter of the United
Nations with a road map to guarantee the rights of every individual in any place or at any time. The document
envisaged by these leaders was considered at the first session of the General Assembly in 1946. The General
Assembly reviewed the draft declaration of human rights and fundamental freedoms and forwarded same to
the Economic and Social Council «with a view to submitting them to the Commission on Human Rights for
consideration ... in preparing the International Bill of Rights". The Committee, at its first session in early
1947, authorized its members to formulate what has been termed “a preliminary draft International Bill of
Human Rights». Subsequently, the work was taken over by a formal drafting committee, consisting of
members of the Committee selected from eight countries with due regard for geographical representation.
The Committee on Human Rights was composed of 18 members drawn from various political, cultural and
religious backgrounds. Madam Eleanor Roosevelt, widow of US President Franklin D. Roosevelt, was chair
of the drafting committee for the Universal Declaration of Human Rights, and with her was Mr. René Cassin
of France, who composed the first draft of the declaration, and the rapporteur of the Committee was Mr.
Charles Malik of Lebanon; the Vice-Chairpersons were Mr. Peng Chung Chang of China, and Mr. John
Humphrey of Canada, and Director of the United Nations Division of Human Rights, who prepared the
Declaration's blueprint . However, Mrs. Roosevelt was recognized as the driving force behind the submission
of the declaration. The preliminary draft of the Declaration was proposed in September 1948 with more than
50 Member States participating in the preparation of the final version. By Resolution 217 A (III) of 10
December 1948, the General Assembly unanimously adopted the Universal Declaration of Human Rights in
Paris, but with eight abstentions; and the development of the full text of the Universal Declaration of Human
Rights took less than two years. At a time when the world was divided into Eastern and Western blocs, it was
clear that finding a common ground on what should constitute the essence of the document was a colossal
task.
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b) The two International Covenants on Human Rights
The Universal Declaration was not, despite its importance, fully responsive to the
needs and aspirations of humankind. It was a foundation s but not the whole building.
Since it was published and until 1966, it did not have binding legal value as it was a
recommendation of the United Nations General Assembly and it lacked the punitive
mechanism for enforcement on the parties that violate the rights and freedoms
proclaimed therein.
To give legal force and mandatory obligation to the principles enshrined in the
Universal Declaration, the United Nations deployed efforts towards the adoption of a new
Bill of Human Rights through a draft Charter and international treaties with provisions to
enhance human rights protection and define in detail the binding limits that States must
adhere to in the application of rights and freedoms, such as some kind of international
oversight and control over the application of the Conventions.
It was against this background that the two International Covenants on Human
Rights were adopted. The first Covenant was reserved for the protection of Civil and Political
Rights, and the second Covenant was devoted to the protection of economic, social and
cultural rights6. By adoption of these Covenants, the rights and freedoms enshrined in the
Universal Declaration turned into legal obligations the source of which is conventional
international law. Thus, the debate over the legal value of these rights and freedoms came
to an end.
The two Covenants are binding international treaties, with legal obligations for the
States parties. These Conventions have also instituted an international monitoring system
to ensure the application of the rights and freedoms contained therein, and designed to
provide various safeguards to protect the rights and freedoms.
With regard to the Covenant on Civil and Political Rights7, the phrase rule of law was
not explicitly stated therein, but it was clearly spelt out that the rights and freedoms can be
exercised only within the scope of the law. For example, the right to life is the first of all
rights and the law should protect it; just as the right to equality before the law without
discrimination or the principle of no crime and no punishmen t except in accordance with the
law. The frequency with which the term “Law” was mentioned denotes the supremacy of
the law and the need to abide by it and respect its provisions.
As for the rule of justice, the International Covenant on Civil and Political Rights was
more elaborate. By virtue of the Covenant, «Where not already provided for by existing
legislative or other measures, each State Party to the present Covenant undertakes to take
the necessary steps, in accordance with its constitutional processes and with the provisions
of the present Covenant, to adopt such laws or other measures as may be necessary to give
effect to the rights recognized in the present Covenant». States also undertake «to ensure
that any person whose rights or freedoms as herein recognized are violated shall have an
effective remedy, notwithstanding that the violation has been committed by persons acting
in an official capacity»; and «to ensure that any person claiming such a remedy shall have
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6
The International Covenant on Civil and Political Rights: adopted and opened for signature, ratification and
accession by United Nations General Assembly resolution 2200 A (-21) of 16 December 1966; entry into
force: 23 March 1976; and currently has 167 States Parties. The International Covenant on Economic, Social
and Cultural Rights: officially adopted and published by General Assembly resolution 217 A (3) of 10
December 1984. Entry into force: January 3, 1976.
7 Arabic Boumediene. A study on the International Covenant on Civil and Political Rights and the First Optional Protocol
thereto, http://www.m.ahewar.org/s.asp?aid=344218&r=0.
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his right thereto determined by competent judicial, administrative or legislative authorities,
or by any other competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy8»; The Covenant also recognizes the right of
everyone to the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, and everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law.
c) Human Rights sectorial conventions
The International Bill of Human Rights consists, in addition to the Universal
Declaration and the two International Covenants, of a number of sectorial conventions for
the protection of the rights of certain groups of people (women, child, migrant workers) or
for protection against certain behaviours (racial discrimination, torture).
And these agreements contain references to the rule of law or the rule of justice.
The International Convention on the Elimination of All Forms of Racial Discrimination9 states
in Article 5 that States Parties pledge «to prohibit and eliminate racial discrimination in all
its forms and to guarantee the right of everyone, without distinction as to race, colour, or
national or ethnic origin, to equality before the law». Equality before the law without
discrimination whatever its source and whatever the form it takes is a basic component of
the principle of the rule of law.
As for the rule of justice, the Convention is quite clear. In Article 5 (a), it sets forth
«the right to equal treatment before the tribunals and all other organs administering
justice». Article 6 added the right to a fair trial without discrimination in the following
terms: «States Parties shall ensure for every person within their jurisdiction the right of
recourse to national courts and other competent state institutions to protect and effectively
remedy them in respect of any act of racial discrimination which is a violation» of his
human rights and fundamental freedoms and is contrary to this Convention, as well as the
right of recourse to the courts to seek fair and adequate compensation or any appropriate
and just reparation for any damage suffered as a result of such discrimination.
The Convention on the Elimination of All Forms of Discrimination against Women10 followed
the same path. Article 2 (c) states the need to «establish legal protection of the rights of
women on an equal footing with men, and to ensure the effective protection for women
through competent courts and other public institutions in the country, against any act of
discrimination». Article 15, paragraph 1, stressed the principle of equality before the law in
the following words: «States Parties shall accord to women the equality with men before
the law».
There is no doubt that the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment11 and punishment for this crime is foremost of all the
agreements, which have placed emphasis on the rule of law and the rule of justice. This
agreement addresses one of the most important human rights and the most vulnerable to
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8
Article 2, para 3 (b).
Adopted by the United Nations General Assembly resolution 2106 (D-20) in January 21, 1965 and entered
into force on 4 December 1969.
10 Adopted by the General Assembly resolution 34/180 of 18 December 1979 and entered into force on 3
September 1981.
11 Adopted by the General Assembly resolution 39/46 of 10 December 1984 and entered into force on 26
June 1987.spettmbr 1981.
9
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violations, that is, the right to physical integrity. The agreement devotes articles 412 and 6,
paragraph 1, to the principle of the rule of law. Article 4 upholds «the need to criminalize
torture» while Article 6, paragraph 113, evokes the principle that a foreigner should not be
put under detention unless in accordance with the law and with the necessity of
guaranteeing the defence and the media.
With respect to the virtue of justice, the Convention on the Prevention of Torture
makes e it a central principle, especially in Articles 514, 715 and 916.
d) The United Nations Charter, signed on 26 June 194517
Like all international charters and declarations signed after World War II, there are
no explicit statements devoted to the rule of law and the rule of justice in the Charter of
the United Nations. However, the consolidation of the rule of law and human rights is seen
as an essential element in bringing lasting peace and international security in an effective
manner and in achieving progress and development in the economic field. The same
applies to the principle of accountability before openly enacted and equally enforced laws
applied and invoked in the context of an independent judiciary. In other words, the rule of
law and the rule of justice are perceived as contributing to the achievement of the United
Nations mission and the goal for which it was established.
In this context, we note that the Secretary-General of the United Nations strongly
recognizes the principle of supremacy and the rule of law, as demonstrated in the various
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12
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall
apply to an attempt to commit torture and to an act by any person which constitutes complicity or
participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties
which take into account their grave nature.
13 Upon being satisfied, after an examination of information available to it, that the circumstances so warrant,
any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is
present shall take him into custody or take other legal measures to ensure his presence. The custody and
other legal measures shall be as provided in the law of that State but may be continued only for such time as
is necessary to enable any criminal or extradition proceedings to be instituted.
14 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the
offences referred to in article 4 in the following cases: (a) When the offences are committed in any territory
under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a
national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2.
Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such
offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not
extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article. 3. This
Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
15 1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence
referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit
the case to its competent authorities for the purpose of prosecution. 2. These authorities shall take their
decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that
State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and
conviction shall in no way be less stringent than those which apply in the cases referred to in article 5,
paragraph 1. 3. Any person regarding whom proceedings are brought in connection with any of the offences
referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.
16 1. States Parties shall afford one another the greatest measure of assistance in connection with criminal
proceedings brought in respect of any of the offences referred to in article 4, including the supply of all
evidence at their disposal necessary for the proceedings. 2. States Parties shall carry out their obligations
under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist
between them.
17 Entered into force in October 24, 1945.
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reports, which we will analyse, and study later in the second part of the research. This is
also evidenced by the large number of General Assembly recommendations on
strengthening the rule of law, most recent of which is resolution 69/123 entitled «The rule
of law at the national and international levels».
e) The Constitution of the United Nations Educational, Scientific and Cultural Organization
(UNESCO) adopted on 16 November 1945
The objective of establishing UNESCO was «to contribute to the maintenance of
international peace and security by working through education, science and culture on
closer cooperation between nations to ensure universal respect for justice, law, human
rights and fundamental freedoms for all without distinction as to race, sex, language or
religion as established by the Charter of the United Nations for all peoples». UNESCO's
Constitution is considered as a pioneer in highlighting the importance of the rule of law
and the rule of justice. However, the reference in the Preamble to the Constitution was not
enough to make the rule of law and the rule of justice legally binding rules.
It may thus be concluded that the most important international conventions and
declarations do not represent appropriate mechanisms to consolidate and strengthen the
rule of law and the rule of justice, in view of the prevailing international circumstances and
the general context which gave rise to their enactment and adoption. Nevertheless, this
modest consideration has been rectified and their shortcomings overcome in regional
conventions and treaties.
2.2 Explicit Stipulations in the Regional Charters
Unlike international conventions, many regional conventions have set forth their
adherence to the rule of law and the rule of justice as a principle and a goal.
a) Charter of the Organization of American States concluded on 30 April 1948
This Charter entered into force on 13 December 1951. The Organization of
American States is a regional organization within the United Nations, which seeks to
achieve collective self-defense, regional cooperation and peaceful settlement of disputes.
The Charter of the Organization defines the guiding principles of the group, namely:
respect for international law, social justice and rule of law; economic cooperation and
equality of all peoples.
The fifth chapter of the Charter stipulates the need for the political institutions of
American States to be built on actual practice of parliamentary democracy. This was
emphasized in the third chapter of the Democratic Charter of American States concluded
on 11 September 2001 which determines the essential elements of representative
democracy, including respect for human rights and fundamental freedoms, access to and
exercise of power in accordance with the rule of law, the conduct of free and fair elections
on the basis of secret voting as an expression of popular sovereignty, and multiparty
system, political parties and organizations and the separation and independence of public
authorities.
b) Statute of the Council of Europe concluded on 5 May 1949
The Council of Europe is the first international organization to accord utmost
importance to the issue of the rule of law and the rule of justice, and to make them the
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centrality of the organization, the goal of which is not only to achieve, but also to
strengthen these rules, given the fact that the interest of this organization is positioned
entirely on respect for human rights and the propagation of democracy in Europe.
The preamble to the Statute of the Council of Europe states that Member States are
attached to the moral and spiritual values which are considered a common heritage of their
people, and which is the source of the principles of individual freedom, political freedom
and the supremacy of law, all of which constitute the bases of the principles of true
democracy.
Chapter III also stipulates the need for each Member State of the Council of Europe
to recognize the principle of the rule of law. Moreover, Chapter VIII acknowledges that
each Member State representation will be subject to suspension and the possibility of
withdrawing its membership in the case of non-respect of the provisions Chapter III. This
means that any European country can become a member of the Council of Europe if it
accepts the principle of the rule of law, the rule of justice and democracy and vows to
ensure human rights for all persons under its jurisdiction.
c) The Constitutive Act of the African Union adopted on 11 July 2001
The African Union replaced the Organization of African Unity, which was
established in 1963 when many African countries were gaining independence.
Paradoxically, the Charter, which was signed on 22 May 1963 did not give the issue of the
rule of law any attention given the fact that the primary goal at that time was to support the
independence and sovereignty of States and the elimination of economic backwardness, as
well as consolidate African solidarity and promote the continent to assume its proper
position on the scene of international decision-making.
However, by the end of the nineties, things changed radically as African rulers
understood the lesson by the end of the Cold War and decided to abandon the legacy of
the historical organization and establish a new organization to keep pace with the time.
The preamble of the Constitutive Act of the Union stipulates the objectives, the
most important of which are «promotion and protection of human and peoples’ rights and
support the institutions, culture, democracy and ensure good governance and the rule of
law». The Constitutive Act also acknowledged that among the principles on which the
Union is based is «respect for democracy, human rights and the rule of law, good
governance and the promotion of social justice to ensure balanced economic
development»18. The Constitutive Act also added in Article 30 that governments that come
to power through unconstitutional means would not be allowed to participate in the
activities of the Union.
Perhaps, the most striking aspect of the new trend in the African Union was the
adoption of the African Charter on Democracy, Elections and Good Governance on 30 January
2007 by African Heads of State and Government, which entered into force on 15 February
2012. The Charter aims at strengthening Member States' commitment to the principles and
universal values of democracy and respect for human rights and also the promotion of
commitment to the principle of the rule of law based on the supremacy of the Constitution
and the constitutional order in the political organization of Member States.
As for the principles of the Charter, they are based on the universal values of
democracy, respect for human rights, the rule of law and supremacy of the Constitution
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18Article
4, para M of the Constitutive Act of the African Union.
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and the constitutional order in the political arrangements of the States. The Charter stresses the
importance of monitoring elections by electoral observer missions and special advisory
missions as well as the need to create an enabling environment for independent and impartial
national monitoring mechanisms.
d) EU Treaty
The European Union inherited the European Economic Community, which was
constituted under the Treaty of Rome in 1957, and political issues were not part of its
jurisdiction. However, with the development and expansion19 of the European structure, the
European Union was transformed from a purely economic community into an economic and
political union following the conclusion of the Maastricht Treaty signed on 7 February 199220,
and revised several times. Subsequently in 1997, the Maastricht Treaty was replaced by the
Amsterdam Treaty, which introduced significant changes to the former treaty. The Treaty of
Amsterdam was concerned with increasing emphasis on citizenship, the rights of individuals
and more democracy in the form of enhancing the powers of the European Parliament21.
The preamble of the Treaty confirms the adherence of European Union States to the
principles of freedom, democracy and respect for human rights and fundamental freedoms and
for the rule of law. In Chapter II, the Union acknowledged that it is based on respect for the
principles and values of human freedom and democracy, justice and the rule of law, human
dignity as well as respect for human rights, including respect for minority rights and that it
seeks to promote and support democracy, the rule of law and human rights, justice and the
general principles of international law in its foreign policy and achieve common security
security.
e) The Charter of the Organization of Islamic Cooperation22
The Dakar Charter, which was signed on 14 March 2008, confirms in its preamble that it
aims to preserve the noble Islamic values of peace, compassion, tolerance, equality, justice and
human dignity. It also aims at promotion of human rights and fundamental freedoms, good
governance and the rule of law, democracy and accountability in Member States in accordance
with their constitutional and legal systems.
The seventh paragraph of Chapter II enumerated the principles that Member States
undertake to adopt and adhere to, the most important of which are Member States’ support
and promotion of good governance, democracy, human rights and fundamental freedoms and
the rule of law.
3. Mechanisms and Tools for stipulating the Rule of Law and the Rule of Justice in International Charters
and Declarations
Stipulating the principles of the rule of law and the rule of justice is not enough to
make them a reality, neither is it enough to provide the necessary effectiveness. It is
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19
The Union is composed of 28 states.
Entered into force on 1 November 1993.
21 The treaty was signed on 2 October 1997 and entered into force on 1 May 1999.
22 The Organization of Islamic Cooperation, formerly the Organization of Islamic Conference, is an
international organization with 57 Member States.
20
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therefore important to conduct continued monitoring through the adoption of effective
mechanisms (a) at the legislative level, on the one hand (a) and the operational level, on the
other.
3.1 Legislative Mechanisms
United Nations organs play a vital role as derived from the Charter. According to the
stipulations in the United Nations Charter, the General Assembly initiates studies and does
not hesitate to make specific recommendations on issues related to the general principles of
cooperation in the maintenance of international peace and security with the aim of
promoting international cooperation in the political field and encouraging the progressive
development of international law23.
In this context, the United Nations General Assembly has continued to consider the
issue of the rule of law and the rule of justice as a standing item on its agenda since 1992,
and it has taken several decisions on the matter. For example, on the occasion of
reaffirming the importance of developing a comprehensive global development agenda
beyond 2010 as a way to establish a democratic and equitable international order, and to
demonstrate its determination to take all the measures within its power to ensure the
establishment of a democratic and equitable international order, the UN General Assembly
«declares that democracy includes respect for all human rights and fundamental freedoms
and it is a universal value based on the will of the people expressed freely in determining
their political, economic, social, cultural and full participation in all aspects of their lives,
and reaffirms the need for universal adherence to the principle of the rule of law and the
implementation of this principle at the national and international levels24».
In application of its agenda, the General Assembly adopted a series of resolutions on
«the rule of law at the national and international levels» the most recent of which is
resolution No. 69/123 of 10 December 2014, in which the General Assembly affirms that
the human rights and the rule of law and democracy are interdependent issues, mutually
reinforcing and fall within the values of the United Nations and its basic principles which
are indivisible and stresses the need to support the rule of law at the international level and
promote it according to the principles of the Charter of the United Nations. The General
Assembly also expresses its full support for the role played by the Panel on coordination
and advice in the field of the rule of law in order to coordinate efforts and achieve overall
consistency in the United Nations system.
Within the framework of existing mandates and invites the panel to interact with the
Member States, especially in the informal briefing sessions.
As part of its support for the rule of law and the rule of justice, the plenary calls
upon the United Nations system to systematically address the aspects related to the rule of
law as appropriate in the relevant activities in this field, as a recognition of the importance
of the rule of law in most of the areas where the United Nations is involved. The General
Assembly also requests the Secretary-General to submit an updated inventory of the
activities carried out by the various organs and bodies, offices and departments, funds and
programs affiliated to the United Nations system and devoted to strengthening the rule of
law at the national and international levels. The Secretary-General is further required to
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23Articles
11 and 13 of the United Nations Charter.
decision taken by the General Assembly on 18 December 2014, to establish an international democratic
and fair system.
24A
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prepare after seeking the views of Member States, a report defining the ways and means to
promote and coordinate the activities listed in the inventory to be prepared, with particular
attention to the effectiveness of the assistance that some countries may request for
capacity-building which may require it to strengthen the rule of law at the national and
international levels. In addition, the General Assembly calls upon the International Court
of Justice and the United Nations Commission on International Trade Law and
International Law Commission to provide in their reports to be submitted by each of them
to the General Assembly, some comments on the current roles played by each of them in
the promotion of the rule of law.
The General Assembly takes note with appreciation of the report of the SecretaryGeneral entitled «Uniting our strengths to enhance the support provided by the United
Nations for the rule of law», and supports the Panel on coordination and resources in the
field of the rule of law, which receives support from the Rule of Law Unit in the Executive
Office of the Secretary-General, led by Deputy Secretary-General and requests the
Secretary-General to submit to the General Assembly without delay the details of the needs
of this Unit in terms of jobs and other needs for its consideration25.
Through these sample decisions, it is crystal clear that the plenary emphasizes the
need for universal adherence to the rule of law, implements this need equally at the national
and international levels and their solemn commitment to an international system based on
the rule of law and international law, a system that is considered, alongside with the
principles of justice, indispensable for the peaceful coexistence, international cooperation
and express the conviction that the United Nations and Member States should be guided in
its activities to promote and respect the rule of law at the national and international levels,
as well as justice and good governance26.
On the occasion of the United Nations Conference on Crime Prevention and
Criminal Justice on 15 April 2015, the chairperson of the General Assembly stated that «If
we do not have the rule of law, peace and security cannot be achieved, and if there is no
peace and security, development will not be realized».
The Security Council for its part does not differ much from the General Assembly. It
supports the rule of law and the rule of justice. It has also conducted many thematic
discussions on them and adopted resolutions emphasizing the importance of these matters
in the context of issues pertaining to women, security, children and armed conflicts and the
protection of civilians in armed conflicts. For example, the statement of the President of
the Security Council during the meeting held on 19 January 2015 concerning the Council's
consideration of the item entitled «Maintenance of international peace and security:
Inclusive development for the maintenance of international peace and security», where he
confirmed that it is necessary to help any country to come out from conflict in a
sustainable manner through a comprehensive and integrated approach, taking into account
the correlation between political, security and development activities as well as human
rights activities and the rule of law, reinforcing the handling of the reasons underlying the
conflicts including the strengthening of the rule of law at the national and international
levels and promotion of economic growth and development of sustainable political,
religious and cultural tolerance and poverty eradication.
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25A
decision taken by the General Assembly on 11 December 2008 on «the rule of law at national and
international levels».
26A decision taken by the General Assembly on 4 December 2006.
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On the same issue, the Security Council stressed that security sector reform is an
essential element in any process to achieve stability in post-conflict and underscored the
close link between this reform and the rule of law and the administration of justice in the
transitional phase, and the disarmament, demobilization, reintegration and protection of
civilians27. The rule of law and the rule of justice are considered the key elements in conflict
prevention, peacekeeping, conflict resolution and peace-building.
Thus, the Security Council attaches great importance to the promotion of justice and
the rule of law as indispensable elements for achieving lasting peace. Activities for
promoting the rule of law are very important in the peace-building strategies in the
communities emerging from conflict. Thus, it emphasizes the role of the Peace Building
Commission in this regard. It also supports the idea of establishing a unit within the
Secretariat to assist in establishing the rule of law28.
The Secretary-General of the United Nations stressed in his report entitled the rule
of law and transitional justice in conflict and post conflict societies, stating that «The
United Nations will support the local departments concerned with the reform and will
assist in the building of the national institutions of justice sector to facilitate the procedures
of national consultations on justice reform and transitional justice and help in filling the
vacuum in the field of rule of law, apparently clear in a number of many post-conflict
societies»29.
Thus, we realize that in spite of the silence of the United Nations Charter and its
failure to consecrate the rule of law and the rule of justice, its principal organs have not
ceased to show their support to the extent that the rule of law and the rule of justice have
become international rules for which the United Nations mobilizes all available means to
consolidate on the ground.
3.2 Practical mechanisms and Processes
The United Nations continues to promote justice and the rule of law through the
three pillars of its work, as previously explained: international peace and security, progress
and social and economic development; and respect for human rights and fundamental
freedoms. In this regard, it relies for its support and consolidation of the rule of law and
justice on practical mechanisms, the most important of which are peacekeeping operations,
the efforts of which the department concerned is striving to organize.
To assist Member States and the Secretary General in their efforts to maintain
international peace and security, the Department of Peacekeeping Operations provides
political and executive direction to the operations of the United Nations peacekeeping
operations around the world, and stays in touch with the Security Council and both the
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27A
statement of the president of the Security Council, July 12, 2005, at the consideration of the item entitled
“Maintenance of international peace and security, the role of the security council in the humanitarian crisis,
challenges, lessons learnt and the way forward”. In the same context, the decision of the security council in its
session No. 7161 on April 28, 2014, which states “provide a security sector, which is efficient, effective,
professional, accountable, without discrimination and full respect of human rights and rule of law which form
the corner stone in peace and sustainable development and considered an important factor in conflict
prevention.
28A statement of the president of the Security Council, 22 June 2006, during consideration of the item entitled
“consolidating international law, rule of law and maintaining international peace and security”.
29 Report of the UN Secretary General on 23/08/2004 entitled: Rule of law and transitional justice in conflict
and post conflict societies.
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troops contributors as well as financial resources contributors, and the parties to the
conflict for implementation of Security Council mandates30.
The support provided for both sides in matters of the rule of law and the rule of
justice within the framework of peacekeeping operations includes needs assessment and
mission planning, selection and deployment of specialists, provision of guidance and
support for the rule of law elements in the missions. It also strengthens law enforcement,
supports the justice institutions at the local level, facilitates the holding of national
consultations on justice reform, coordinates international assistance in the sphere of the
rule of law and monitoring of court procedures and submits reports thereon, trains national
justice sector staff, provides support to local bodies for judicial reforms and proffers advice
to the rule of law institutions of the host countries.
Peacekeeping Operations also help actors to sort out and select police officers,
judges and national prosecutors, provide assistance in the drafting of new constitutions,
revising legislations, informing and educating the public, developing human rights
commissions and in build the capacity of the civil society to monitor the justice sector.
Peace missions further help host countries to address past human rights violations through
the establishment of courts and fact-finding and national reconciliation mechanisms.
It is noteworthy that approximately forty the United Nations structures are active in
the area of rule of law, and the Organization is working on implementation of the rule of
law programs and operations in nearly 110 countries all over the world, mostly in Africa.
There is no doubt that the great development of international criminal justice today
is the best guarantor of the rule of law and justice. The various international courts
(tribunals) established for the former Yugoslavia31 or Rwanda32 or Sierra Leone33or in
Cambodia or Lebanon contribute to the fight against impunity, thus enhancing
accountability for the most serious crimes.
In 2013, the International Criminal Tribunal for Rwanda concluded its work and is
now at the stage of closure, while the International Tribunal for the former Yugoslavia is
continuing its trials of senior political and military figures, and the Extraordinary Chambers
of the Courts of Cambodia are still working on the trial of the major leaders of the Khmer
Rouge movement. The Special Tribunal for Lebanon is also still working within the
framework of key actions of the court, which began practically in June 2014.
If the establishment of international criminal tribunals constitutes a significant
development in consolidating the rule of law and the rule of justice, the establishment of
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30Currently, there are 16 peace keeping operations: In Africa: The United Nations Integrated Mission
multidimensional to achieve stability in the Central African Republic; The United Nations multidimensional
Integrated Mission to achieve stability in Mali; United Nations Mission in the Republic of South SudanTemporary UN Security mission in Abyei; The United Nations multidimensional Integrated Mission to
achieve stability in the Democratic Republic of the Congo; The United Nations and African Union Hybrid
Operation in Darfur; The United Nations Operation in Cote d'Ivoire; The United Nations Mission in Liberia;
The United Nations Mission for the Referendum in Western Sahara. In the Americas: The United Nations
Stabilization Mission in Haiti. Asia-Pacific: The United Nations Observer Group militaries in India and
Pakistan. Europe: The United Nations Peacekeeping Force in Cyprus; The United Nations Interim
Administration Mission valuable Kosovo. Middle east: United Nations Disengagement Observer Force
(UNDOF); The United Nations Interim Force in Lebanon; The United Nations Truce Supervision
Organization.
31In 1993, by a decision of the UN Security Council.
32In 1994, by a decision of the UN Security Council.
33Established in 2002, according to an agreement between the United Nations and Sierra Leone.
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the International Criminal Court34 in 2002 to investigate war crimes, crimes against
humanity, the crime of genocide and other serious violations of human rights constitutes
undisputedly the most prominent legal achievement in the field of the rule of law and the
rule of justice. The International Criminal Court exercises a role complementary to national
judicial organs. It cannot perform its judicial function unless the national courts have
shown interest in it or have been unable to investigate matters, given the fact that the
responsibility of conducting investigations rests with the Member States of the Court in the
sense that the primary responsibility is heading towards the same countries.
The International Criminal Court has opened investigations in four cases in
Northern Uganda, the Democratic Republic of Congo, and the Central African Republic
and in Darfur. It had issued nine arrest warrants and detained two suspects awaiting trial35
including in the following countries: Kenya, Libya and Côte d'Ivoire and Mali.
All of these mechanisms, regardless of their individual effectiveness, contribute in
supporting and establishing the principles of the rule of law and the rule of justice, which
have become well-established international legal principles and basic standards of
international relations.
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34The Rome Statute of the International Criminal Court. http://www.icc-cpi.int/FR_Menus/icc/Pages/defa
ult.aspx.
3535The official website of the International Criminal Court - http://www.un.org/law/icc.
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