2013 ASIL Annual Meeting - IMG_0371
The 2012 United Nations Declaration on the Rule of Law and its Projections - By Lilian del Castillo
This panel was sponsored by the UN21 Interest Group and cosponsored by the Government Attorneys Interest Group, the Transitional Justice and Rule of Law Interest Group, and the International Criminal Law Interest Group.
The Moderator of the session, Ambassador Hans Corell, former Under-Secretary for Legal Affairs and Legal Counsel of the UN, and former Sweden Ministry of Foreign Affairs Ambassador, introduced the subject and the panelists, on what resulted in a high-level and thought-provoking session of highly-qualified professors and practitioners of international law.
The first panelists, Simon Chesterman, Dean of the Faculty of Law of the National University of Singapore, starting the session explaining that three basic elements of the rule of law can be identified. First, public power should not be exercised arbitrarily. This incorporates the rejection of “rule of man” and requires that laws be prospective, accessible, and clear. In the domestic context, this can be understood as meaning a government of laws. Secondly, the law must apply also to the public authority itself, with an independent institution such as a judiciary to apply the law to specific cases. This implies a distinction from “rule by law” and can be abbreviated to the idea of the supremacy of the law. Thirdly, the law must apply to all persons equally, offering equal protection without prejudicial discrimination. The law should be of general application and consistent implementation; it should be capable of being obeyed. This means equality before the law.
The “international rule of law” may be understood as the application of these principles to relations between states, as well as other subjects and objects of international law. But the concepts cannot be translated directly. At the national level, the rule of law regulates subjects in a vertical relation to the sovereign; at the international level it regulates entities that are theoretically equal in a horizontal relationship. It can be helpful, in this context, not to think of what the rule of law means, so much as what it is intended to do. Based on the above elements, each can be understood as having a specific function that is applicable both domestically and internationally: first, to strengthen predictability of behaviour; secondly, to prevent arbitrariness; and thirdly to ensure basic fairness.
In this light, added Simon Cherterman, these principles raised questions with regard to the legitimacy of certain Council activities, in particular when it passed resolutions of a law-making character — counter-terrorism and proliferation of WMD — or targeted sanctions against named individuals, as in the Al-Qaida/Taliban sanctions regime, without clarity as to the appropriate process for listing and delisting.
The next panelist, Clemens A. Feinaeugle, Senior Research Fellow and Coordinator of Scientific Research at the Max Planck Institute Luxembourg for International European and Regulatory Procedural Law, spoke under the title “Strengthening the Rule of Law in the UN – Do we Need a new Approach to UN Targeted Sanctions?” about the rule of law contents in the 2012 UN Declaration and their relevance for the work of the 1267 Sanctions Committee. The rule of law as it appears in the UN Declaration does not provide a list of clear-cut rule of law contents. The rule of law is rather to be seen as a principle with the function of attaching legitimacy and predictability to the work of the UN and the Security Council. Several rule of law improvements have been achieved in the 1267 Sanctions regime over the past years so that a whole new approach is not needed. Procedural safeguards play a major role in this context but multi-level aspects must also be taken into consideration, e.g. the principle of “UN loyalty”, i.e. the obligation of cooperation and mutual respect between the UN level and the EU/national levels involved in the establishment and administration of the UN sanctions regime.
Erika de Wet, Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law at the University of Pretoria, and Professor of International Constitutional Law at the Universiteit van Amsterdam, The Netherlands, was the following panelist, addressing “The role of Regional and Domestic Courts in strengthening the Security Council’s adherence to international human rights standards.” The contribution of Professor de Wett focussed on techniques of interpretation in recent cases of the European Court of Human Rights and domestic courts, aimed at reconciling United Nations Security Council obligations and international human rights standards. It illustrated that although the United Nations Security Council is not bound by these court decisions, they generated bottom-up pressure which has contributed to some (incremental) reform in relation to the listing and de-listing of individuals and entities falling within the scope of the Al Qaida sanctions committee.
Professor de Wett specified that the European Court of Human Rights in the case of Nada v Switzerzland (September 2013) departed from the presumption that the United Nations and its organs act in accordance with human rights standards and interpreted the language of the respective Security Council resolutions restrictively. This seems to be a strong presumption that will only be overcome by explicit language in a resolution. This approach was also confirmed by the Dutch Supreme Court in The Iranian students case (December 2012). The Dutch court underscored the need for domestic authorities to avoid a norm conflict between international human rights standards and Security Council obligations through harmonious interpretation.
While acknowledging the limits of these interpretative techniques, Professor de Wett concluded that they constitute useful ways for preventing an outright rejection of Security Council obligations that would undermine international peace and security, while maintaining some respect for international human rights standards (and therefore the international rule of law). Until such a time as the United Nations itself provides for independent review procedures for those affected by certain types of targeted sanctions, the role of domestic and regional courts in safeguarding the rights of individuals will remain necessary – also to strengthen the legitimacy of the United Nations sanctions regime.
In his presentation August Reinisch, Professor of International Law at the University of Vienna School of Law, referred to “Internalizing the Rule of Law – the UN’s Unfinished Tasks,” focusing on the specific access to justice aspect of the rule of law. Vis-à-vis the UN and other international organizations this demand to have one’s rights and obligations determined by an independent and impartial tribunal is regularly impeded by the organizations’ immunity from the jurisdiction of national courts. It is for this reason that Section 29 of the 1946 Convention on the Privileges and Immunities of the UN provided that “the United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party […]”.
With regard to staff disputes access to justice is largely guaranteed through the reformed system of the administration of justice in the United Nations, now carried out by the two-tiered protection of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal. With regard to individuals listed by the UN SC as terrorists, the Ombudsperson institution has markedly improved the situation, though paragraph 29 of the 2012 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, A/RES/67/1, suggests that there is still a need for reform when it “encourage[s] the Security Council to continue to ensure that […] fair and clear procedures are maintained and further developed.”
Finally, Professor August Reinisch turned to third parties having contractual or delictual claims against the UN which are normally to be settled by arbitration. He questioned though whether this is an adequate remedy under rule of law auspices and voiced concern over three particular aspects: first, arbitration, unless previously agreed upon, is voluntary, so no one can insist on arbitration and in cases of tort claims there is no possibility to agree in advance. Thus, potential claimants are at the mercy of the UN to accept arbitration as the recent example of the cholera epidemic in Haiti has demonstrated. Second, arbitration is expensive and will often deter claimants from pursuing their claims. Third, there always remains the need of voluntary compliance with an award because of the separate immunity from enforcement measures enjoyed by the UN.
August Reinisch concluded his presentation by pointing to the “internalization” approach of the ICJ in its Effect of Awards case where it justified the establishment of an administrative tribunal, among others by saying that it would “[...] hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals [...] that [the United Nations] should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.”
The closing comments were the contribution of Sheelagh Steward, Director at the Bureau for Crisis Prevention and Recovery of the United Nations Development Programme, which in her concise and relevant participation clarified that the Security Council is a place of contestation, there is nothing as a unified opinion of the Security Council, asserting also that the Rule of Law itself is a site of contestation. Paragraph 5 of the UN Declaration adds a thicker content to the thin content of the rule of law expressed at the beginning. Sovereignty and the rule of law establish the basis of order, including safety and transitional justice, among other elements.
The questions from the audience which followed, and included Judge Hishasi Owada from the International Court of Justice, gave rise to a vivid discussion, limited by the constraints of time but nevertheless illustrating the broad interest in the rule of law concept and implementation.
The Moderator, Ambassador Hans Corell, summed up the session by referring, first to the two papers that Lilian del Castillo had asked the secretariat to disseminate, Security Council Reform and the Rule of Law, adding that he defined the rule of law relatively broadly. In particular, he believed that democracy and human rights are central to a true rule of law. By way of example he mentioned that when the UN governed Kosovo and East Timor, he had an officer in the UN Office of Legal Affairs vet all draft regulations from a human rights perspective before the Special Representative of the Secretary-General was authorized to issue them.
He also referred to his experiences from defending his country Sweden before the European Court of Human Rights and the effects of the rulings of this Court on the national legislation in the states that are members of the Council of Europe.
Furthermore, he mentioned that two institutes in Europe had elaborated a short guide (41 pages only) for politicians on the rule of law: “Rule of Law – A guide for politicians”. The Guide is freely available for downloading and printing from the website of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law. (address will come separately). The genesis of the Guide was a discussion among members of the InterAction Council of Former Heads of State and Government in which they pointed to the need to raise the awareness of politicians of the basics of international law and the meaning of the rule of law.
Finally, he mentioned that he had just been informed about the Natalia Project, which aims at protecting human rights defenders who are at risk of being subjected to arrest and detention and maybe also inhuman and degrading treatment because of their fully legitimate work in defending human rights and the rule of law.”
The following links contained the documents mentioned by Ambassador Hans Corell:
Text of letter to PR: www.havc.se/res/SelectedMaterial/20121122textoflettertopr...
International Criminal Justice: www.havc.se/res/SelectedMaterial/20121112corellkeynoteicj...
A Guide for Politicians: rwi.lu.se/what-we-do/academic-activities/pub/rule-of-law-...
Natalia Project- Civil Rights Defenders: natalia.civilrightsdefenders.org/
Lilian del Castillo is professor of International Law at the University of Buenos Aires School of Law, teaching natural resources regimes, territorial issues and dispute resolution, among other topics.
*****
69.195.124.65/~asilcabl/2013/04/10/the-2012-united-nation...
2013 ASIL Annual Meeting - IMG_0371
The 2012 United Nations Declaration on the Rule of Law and its Projections - By Lilian del Castillo
This panel was sponsored by the UN21 Interest Group and cosponsored by the Government Attorneys Interest Group, the Transitional Justice and Rule of Law Interest Group, and the International Criminal Law Interest Group.
The Moderator of the session, Ambassador Hans Corell, former Under-Secretary for Legal Affairs and Legal Counsel of the UN, and former Sweden Ministry of Foreign Affairs Ambassador, introduced the subject and the panelists, on what resulted in a high-level and thought-provoking session of highly-qualified professors and practitioners of international law.
The first panelists, Simon Chesterman, Dean of the Faculty of Law of the National University of Singapore, starting the session explaining that three basic elements of the rule of law can be identified. First, public power should not be exercised arbitrarily. This incorporates the rejection of “rule of man” and requires that laws be prospective, accessible, and clear. In the domestic context, this can be understood as meaning a government of laws. Secondly, the law must apply also to the public authority itself, with an independent institution such as a judiciary to apply the law to specific cases. This implies a distinction from “rule by law” and can be abbreviated to the idea of the supremacy of the law. Thirdly, the law must apply to all persons equally, offering equal protection without prejudicial discrimination. The law should be of general application and consistent implementation; it should be capable of being obeyed. This means equality before the law.
The “international rule of law” may be understood as the application of these principles to relations between states, as well as other subjects and objects of international law. But the concepts cannot be translated directly. At the national level, the rule of law regulates subjects in a vertical relation to the sovereign; at the international level it regulates entities that are theoretically equal in a horizontal relationship. It can be helpful, in this context, not to think of what the rule of law means, so much as what it is intended to do. Based on the above elements, each can be understood as having a specific function that is applicable both domestically and internationally: first, to strengthen predictability of behaviour; secondly, to prevent arbitrariness; and thirdly to ensure basic fairness.
In this light, added Simon Cherterman, these principles raised questions with regard to the legitimacy of certain Council activities, in particular when it passed resolutions of a law-making character — counter-terrorism and proliferation of WMD — or targeted sanctions against named individuals, as in the Al-Qaida/Taliban sanctions regime, without clarity as to the appropriate process for listing and delisting.
The next panelist, Clemens A. Feinaeugle, Senior Research Fellow and Coordinator of Scientific Research at the Max Planck Institute Luxembourg for International European and Regulatory Procedural Law, spoke under the title “Strengthening the Rule of Law in the UN – Do we Need a new Approach to UN Targeted Sanctions?” about the rule of law contents in the 2012 UN Declaration and their relevance for the work of the 1267 Sanctions Committee. The rule of law as it appears in the UN Declaration does not provide a list of clear-cut rule of law contents. The rule of law is rather to be seen as a principle with the function of attaching legitimacy and predictability to the work of the UN and the Security Council. Several rule of law improvements have been achieved in the 1267 Sanctions regime over the past years so that a whole new approach is not needed. Procedural safeguards play a major role in this context but multi-level aspects must also be taken into consideration, e.g. the principle of “UN loyalty”, i.e. the obligation of cooperation and mutual respect between the UN level and the EU/national levels involved in the establishment and administration of the UN sanctions regime.
Erika de Wet, Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law at the University of Pretoria, and Professor of International Constitutional Law at the Universiteit van Amsterdam, The Netherlands, was the following panelist, addressing “The role of Regional and Domestic Courts in strengthening the Security Council’s adherence to international human rights standards.” The contribution of Professor de Wett focussed on techniques of interpretation in recent cases of the European Court of Human Rights and domestic courts, aimed at reconciling United Nations Security Council obligations and international human rights standards. It illustrated that although the United Nations Security Council is not bound by these court decisions, they generated bottom-up pressure which has contributed to some (incremental) reform in relation to the listing and de-listing of individuals and entities falling within the scope of the Al Qaida sanctions committee.
Professor de Wett specified that the European Court of Human Rights in the case of Nada v Switzerzland (September 2013) departed from the presumption that the United Nations and its organs act in accordance with human rights standards and interpreted the language of the respective Security Council resolutions restrictively. This seems to be a strong presumption that will only be overcome by explicit language in a resolution. This approach was also confirmed by the Dutch Supreme Court in The Iranian students case (December 2012). The Dutch court underscored the need for domestic authorities to avoid a norm conflict between international human rights standards and Security Council obligations through harmonious interpretation.
While acknowledging the limits of these interpretative techniques, Professor de Wett concluded that they constitute useful ways for preventing an outright rejection of Security Council obligations that would undermine international peace and security, while maintaining some respect for international human rights standards (and therefore the international rule of law). Until such a time as the United Nations itself provides for independent review procedures for those affected by certain types of targeted sanctions, the role of domestic and regional courts in safeguarding the rights of individuals will remain necessary – also to strengthen the legitimacy of the United Nations sanctions regime.
In his presentation August Reinisch, Professor of International Law at the University of Vienna School of Law, referred to “Internalizing the Rule of Law – the UN’s Unfinished Tasks,” focusing on the specific access to justice aspect of the rule of law. Vis-à-vis the UN and other international organizations this demand to have one’s rights and obligations determined by an independent and impartial tribunal is regularly impeded by the organizations’ immunity from the jurisdiction of national courts. It is for this reason that Section 29 of the 1946 Convention on the Privileges and Immunities of the UN provided that “the United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party […]”.
With regard to staff disputes access to justice is largely guaranteed through the reformed system of the administration of justice in the United Nations, now carried out by the two-tiered protection of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal. With regard to individuals listed by the UN SC as terrorists, the Ombudsperson institution has markedly improved the situation, though paragraph 29 of the 2012 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, A/RES/67/1, suggests that there is still a need for reform when it “encourage[s] the Security Council to continue to ensure that […] fair and clear procedures are maintained and further developed.”
Finally, Professor August Reinisch turned to third parties having contractual or delictual claims against the UN which are normally to be settled by arbitration. He questioned though whether this is an adequate remedy under rule of law auspices and voiced concern over three particular aspects: first, arbitration, unless previously agreed upon, is voluntary, so no one can insist on arbitration and in cases of tort claims there is no possibility to agree in advance. Thus, potential claimants are at the mercy of the UN to accept arbitration as the recent example of the cholera epidemic in Haiti has demonstrated. Second, arbitration is expensive and will often deter claimants from pursuing their claims. Third, there always remains the need of voluntary compliance with an award because of the separate immunity from enforcement measures enjoyed by the UN.
August Reinisch concluded his presentation by pointing to the “internalization” approach of the ICJ in its Effect of Awards case where it justified the establishment of an administrative tribunal, among others by saying that it would “[...] hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals [...] that [the United Nations] should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.”
The closing comments were the contribution of Sheelagh Steward, Director at the Bureau for Crisis Prevention and Recovery of the United Nations Development Programme, which in her concise and relevant participation clarified that the Security Council is a place of contestation, there is nothing as a unified opinion of the Security Council, asserting also that the Rule of Law itself is a site of contestation. Paragraph 5 of the UN Declaration adds a thicker content to the thin content of the rule of law expressed at the beginning. Sovereignty and the rule of law establish the basis of order, including safety and transitional justice, among other elements.
The questions from the audience which followed, and included Judge Hishasi Owada from the International Court of Justice, gave rise to a vivid discussion, limited by the constraints of time but nevertheless illustrating the broad interest in the rule of law concept and implementation.
The Moderator, Ambassador Hans Corell, summed up the session by referring, first to the two papers that Lilian del Castillo had asked the secretariat to disseminate, Security Council Reform and the Rule of Law, adding that he defined the rule of law relatively broadly. In particular, he believed that democracy and human rights are central to a true rule of law. By way of example he mentioned that when the UN governed Kosovo and East Timor, he had an officer in the UN Office of Legal Affairs vet all draft regulations from a human rights perspective before the Special Representative of the Secretary-General was authorized to issue them.
He also referred to his experiences from defending his country Sweden before the European Court of Human Rights and the effects of the rulings of this Court on the national legislation in the states that are members of the Council of Europe.
Furthermore, he mentioned that two institutes in Europe had elaborated a short guide (41 pages only) for politicians on the rule of law: “Rule of Law – A guide for politicians”. The Guide is freely available for downloading and printing from the website of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law. (address will come separately). The genesis of the Guide was a discussion among members of the InterAction Council of Former Heads of State and Government in which they pointed to the need to raise the awareness of politicians of the basics of international law and the meaning of the rule of law.
Finally, he mentioned that he had just been informed about the Natalia Project, which aims at protecting human rights defenders who are at risk of being subjected to arrest and detention and maybe also inhuman and degrading treatment because of their fully legitimate work in defending human rights and the rule of law.”
The following links contained the documents mentioned by Ambassador Hans Corell:
Text of letter to PR: www.havc.se/res/SelectedMaterial/20121122textoflettertopr...
International Criminal Justice: www.havc.se/res/SelectedMaterial/20121112corellkeynoteicj...
A Guide for Politicians: rwi.lu.se/what-we-do/academic-activities/pub/rule-of-law-...
Natalia Project- Civil Rights Defenders: natalia.civilrightsdefenders.org/
Lilian del Castillo is professor of International Law at the University of Buenos Aires School of Law, teaching natural resources regimes, territorial issues and dispute resolution, among other topics.
*****
69.195.124.65/~asilcabl/2013/04/10/the-2012-united-nation...