This panel was convened at 9:00 am, Saturday, April 6, by its moderator, Ambassador Hans Corell, former Under-Secretary for Legal Affairs of the United Nations, who introduced the panelists: Simon Chesterman of the National University of Singapore Faculty of Law; Erika de Wet of the Institute for International and Comparative Law in Africa, University of Pretoria; Clemens Feinaugle of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law; August Reinisch of the University of Vienna Faculty of Law; and Sheelagh Stewart of the Bureau for Crisis Prevention and Recovery of the United Nations Development Programme. *
SUMMARY OF PANEL
Hans Corell, former Under-Secretary for Legal Affairs and Legal Counsel of the United Nations, and former Sweden Ministry of Foreign Affairs Ambassador, introduced the subject and the panelists of what resulted in a high-level and thought-provoking session of highly qualified professors and practitioners of international law.
The first panelist, Simon Chesterman, Dean of the Faculty of Law of the National University of Singapore, began the session by identifying the three basic elements of the rule of law. 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 to mean a government of laws. Second, 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. Third, 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 behavior, second, to prevent arbitrariness; and third, to ensure basic fairness.
In this light, added Dean Chesterman, these principles raised questions with regard to the legitimacy of certain Security Council activities, in particular when it passed resolutions of a law-making character--counterterrorism and proliferation of WMD--or targeted sanctions against named individuals, as in the A1 Qaeda/Taliban sanctions regime, without clarity as to the appropriate process for listing and de-listing.
The next panelist, Clemens A. Feinaugle, Senior Research Fellow and Coordinator of Scientific Research at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, delivered his remarks, entitled "Strengthening the Rule of Law in the UN--Do We Need a New Approach to UN Targeted Sanctions?" He started explaining that the "Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels" (1) was adopted by the General Assembly on September 24, 2012 in a meeting that was called a "milestone meeting." (2) It crowned a debate on the rule of law which has been continuing in the UN over the last several years. (3) As the first official and comprehensive Declaration of a High-level Meeting on the topic and supported by a broad majority of states, it is meant to form the basis for the rule of law as a principle that applies to the everyday work of the UN and also its specialized agencies. (4)
About the legal foundation and content of the rule of law in the UN Declaration, he added that the UN Declaration does not expressly tell the legal reason why the rule of law--a concept known from the domestic level--should apply to the United Nations. The Preamble states that the rule of law was the "foundation of friendly and equitable relations between states," while Paragraph 1 names it as one of the indispensable foundations for a more peaceful, prosperous, and just world. Paragraph 5 is a bit more precise as it states that the rule of law belongs to the universal and indivisible core values and principles of the UN. This seems to imply a constitutionalist understanding of the rule of law in the UN.
Professor Feinaugle declared that, with regard to precise contents of the rule of law, it must be kept in mind that the UN Declaration addresses the rule of law at the international and national levels. It lacks a clear differentiation here as to the applicability: while Paragraph 2 names both levels, Paragraphs 11 and the following paragraphs in the same section (I.) seem to speak specifically about the national level. Section II addresses UN bodies and in Paragraph 29 encourages the Security Council with regard to sanctions "to ensure that sanctions are carefully targeted, in support of clear objectives and designed carefully so as to minimize possible adverse consequences, and that fair and clear procedures are maintained and further developed." This can be read as the elements of a proportionality requirement which applies to the administration of targeted sanctions. (5) Also of relevance for the rule of law in the context of sanctions is Paragraph 2 of the UN Declaration which addresses states and international organizations, including the UN, and says that "respect for and promotion of the rule of law and justice should guide all of their activities and accord predictability and legitimacy to their actions." Thus, rather than providing a clear-cut list of precise rule of law contents, this important link to predictability and legitimacy speaks about the result, about what the observation of the rule of law should achieve. This rather general approach is, nevertheless, plausible since the rule of law shall apply to the three pillars of the UN, as the Preamble says, i.e., international peace and security, human rights, and development. These are quite diverse contexts. The rule of law is thus a guiding principle...