Master in Law Specialization in International and European Law Course: State Rebuilding and the Rule of Law in Post Conflict Societies Student’s Name: Elvira Chetvertnykh Nowadays, national and international law are increasingly interconnected. The rule of law determines how power is to be exercised and that citizens and those who govern them should obey the law. What types of issues does the rule of law apply? First, applies to the relation between national authorities and citizens. Second, applies to what goes on among private actors in society. There are three constituent elements of the rule of law: legality, democracy and human rights1. In democratic system the law-making power can be delegated to other bodies, notably regional or local agencies. The main thing is that those to whom legislative power is entrusted are subject to the law and appropriate constitutional oversight. In this way, which are requirements of Rule of law at the national level? 1. Constitutionalism There must be a body of fundamental laws in a legal system, which define in general terms what the limits of the exercise of the various powers are. 2. Publicity, clarity, non-retroactivity and stability As the frequent changes also lead to permanent uncertainty about the content of the law. Publicity requires that those affected by legal changes are actively informed. 3. A special responsibility of parliaments It is important to have adequate training and sufficient skills to perform quality of legislation. It is also important that in the legislative process advice is sought from independent institutions both in the public and private sector, in particular from non-governmental organizations, trade unions and the business community. 4. Discretion, 5. Separation of power It requires that the powers, the executive, the legislative and the judiciary are separated. 6. The judiciary must be impartial and independent from the government The politicians should publicly accept and honour the independence of the judiciary. Access to justice is an important element in a society under the rule of law. Procedures must be fair, that hearings in principle are open to the public. 7. Alternative dispute resolution In a rule of law perspective, disputes can also be resolved by other means 1 Other human rights come into play here, including economic, social and cultural rights. than the judiciary. There are also quasi-judicial institutions, such as the Ombudsman, which may investigate complaints against governmental or organizational abuse of power. 8. Other decision-makers In addition to the judiciary, there is a great variety of administrative officers and agencies that apply the law and make decisions that affect citizens. 9. Adequate enforcement Means the importance of adequate parliamentary oversight through appropriate mechanisms. 10. Cautions there are no hard and fast criteria, awareness of relativism, there is no one-size-fits-all solution, an overarching framework. What is a difference between national legal and political systems and the international society? At the national level, the rule of law applies primarily to the hierarchical relation between the state and its citizens; law is created by the state and its organs, and the enforcement, prosecution, and punishment of violations of the law are the responsibility of the state. At the international level, there is no “superstate” or “world government” to which all these states and organizations are subject; the law-making is a common effort by states and international organizations, where does not exist a central legislation, and enforcement is to a large extent a matter of self-help: states decide whether or not to take action or seek assistance2. The rule of law at the national level depends on international law. There are two international mechanism that can ensure a measure of enforcement: from the perspective of human rights and from the perspective of WTO3. Also, international human rights courts, and other monitoring mechanisms can act as an extra check on the executive branch at the national level, thereby complementing checks and balances at the national level. Which are requirements of Rule of law at the international level? 1. law must be made public, accessible, clear, and prospective4, 2. an independent and impartial judiciary, 3. adequate enforcement Security Council of the United Nations, which, as is well known, has the authority to take measures, if necessary by the use of force, in case it determines that international peace and security is threatened or needs to be restored5. 2 The role of the United Nations Security Council in this context is dealt with in section. World Trade Organization 4 International law lies in the hands of the many states which conclude treaties and form customary law. 5 But its even-handedness is often questioned and the Council has been accused of sometimes applying double standards. One reason for this is that the Council is frequently prevented from acting by the right of the veto of 3 The rule of law at the international level depends on national law. The behaviour of the major states, and in particular the permanent members of the Security Council, will be a determining factor for the maintenance of international peace and security in the future. The future of the rule of law at the international level depends on national court, in order to ensure states, organizations and individuals comply with their obligations under international law. Source: Rule of Law: A Guide for Politicians. Raoul Wallenberg Institute of Human Rights and Humanitarian Law, 2012, ISBN: 91-86910-99-X its permanent members with the result that violations of international law have been left unaddressed. In some cases members of the Council, including permanent members, have even themselves violated the UN Charter.