Ghulam Zahra Younas
The notion of the “rule of law” stems from many traditions and conventions that is intertwined with the evolution of the history of law itself. The Code of Hammurabi, promulgated by the king of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law. Core principles of holding government authority to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including in Confucianism. In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In continental Europe notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism.
Recent attempts to formalize its meaning have drawn on this rich history of diverse understandings. The modern conception of the rule of law has developed as a concept distinct from the “rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Long before the United Nations, States were working towards a rule of justice in international life with a view to establishing an international community based on law.
Today, the concept of the rule of law is embedded in the UNA charter in its Preamble; one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and sources of international law can be mentioned”. A primary purpose of the Organization is “to maintain international peace and security . . . and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The Universal Declaration of Human Rights of 1948, the historic international recognition that all human beings have fundamental rights and freedoms, recognizes that “. . . it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. . .”
For the UN, the Secretary-General 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. The principle of the rule of lawapplies at the national and international levels.
At the national level, the UN supports a rule of law framework that includes a Constitution or its equivalent, as the highest law of the land; a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. These are the norms, policies, institutions and processes that form the care of a society in which individuals feel safe and secure, where legal protection is provided for rights and entitlements, and disputes are settled peacefully and effective redress is available for harm suffered, and where all who violate the law, including the State itself, are held to account.
At the international level, the principle of the rule of law embedded in the Charter of the United Nations encompasses elements relevant to the conduct of State to State relations. Its preamble emphasizes “the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.” Drawn from existing commitments in international law, the core values and principles of the UN include respect for the Charter and international law; respect for the sovereign equality of States and the principle of non-use or threat of use of force; the fulfillment in good faith of international obligations; the need to resolve disputes by peaceful means; respect for and protection of human rights and fundamental freedoms; recognition that protection from genocide, crimes against humanity, ethnic cleansing and war crimes is not only a responsibility owned by a State to its population, but a responsibility of the international community, the equal rights and self-determination of peoples; and the recognition that peace and security, development, humanrights, the rule of law and democracy are interlinked and mutually reinforcing. Appropriate rules of international law apply to the Organization as they do to States.