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Rule of Law Guide for Politicians

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Rule of Law Guide for Politicians Rule of Law A guide for politicians 2 Copyright © The Raoul Wallenberg Institute of Human Rights and Humanitarian Law and the Hague Institute for the Internationalisation of Law 2012 ISBN: 91-86910-99-X This publication is circulated subject to the condition that it shall not by way of trade or otherwise be lent, sold, hired out, or otherwise circulated without the publishers’ prior consent in any form of binding, or cover other than that in which it is published and without a similar condition, including this condition being imposed on the subsequent publisher. The Guide may be translated into other languages subject to the approval of the publishers and provided that the Foreword is included and that the translation is a true representation of the text. Translators at the national level are encouraged to perform this work pro bono. The publishers would be grateful for a copy of translations made so that they can be posted on their websites. Published by The Raoul Wallenberg Institute of Human Rights and Humanitarian Law Stora Gråbrödersgatan 17 B P.O. Box 1155 SE-221 05 Lund Sweden Phone: +46 46 222 12 00 Fax: +46 46 222 12 22 E-mail: [email protected] www.rwi.lu.se The Hague Institute for the Internationalisation of Law (HiiL) Anna van Saksenlaan 51 P.O. Box 93033 2509 AA The Hague The Netherlands Phone: +31 70 349 4405 Fax: +31 70 349 4400 E-mail: [email protected] www.hiil.org Cover: Publimarket B.V., The Netherlands 3 Rule of Law A Guide for Politicians TABLE OF CONTENTS Foreword ....................................................................................... 5 1 INTRODUCTION ....................................................................... 6 2 THE RULE OF LAW AT THE NATIONAL LEVEL ........................... 7 2.1 The meaning of the rule of law at the national level.............. 7 2.1.1 What is the rule of law? ....................................................... 7 2.1.2 The rule of law and the responsibility of politicians .................. 9 2.1.3 Three constituent elements of the rule of law: legality, democracy and human rights ........................................................ 10 2.2 Rule of law requirements at the national level ................... 11 2.2.1 Constitutionalism ................................................................ 11 2.2.2 Publicity, clarity, non-retroactivity and stability ....................... 12 2.2.3 A special responsibility of parliaments .................................... 13 2.2.4 Discretion........................................................................... 14 2.2.5 Separation of powers ........................................................... 15 2.2.6 The judiciary ...................................................................... 16 2.2.7 Alternative dispute resolution ............................................... 19 2.2.8 Other decision-makers ......................................................... 20 2.2.9 Adequate enforcement ......................................................... 20 2.2.10 Cautions ........................................................................... 21 2.3 Why is the rule of law at the national level indispensable? . 22 2.3.1 Restraining the exercise of power .......................................... 23 2.3.2 Legal certainty and freedom ................................................. 23 2.3.3 Equal treatment .................................................................. 24 3 THE RULE OF LAW AT THE INTERNATIONAL LEVEL ................ 25 3.1 The meaning of the rule of law at the international level .... 25 3.2 Rule of law requirements at the international level............. 26 3.2.1 International law must be made public, accessible, clear, and prospective ................................................................................. 26 3.2.2 An independent and impartial judiciary .................................. 28 3.2.3 Adequate enforcement ......................................................... 30 3.3 Why is the rule of law at the international level indispensable? ............................................................................. 31 4 THE INTERDEPENDENCE OF THE RULE OF LAW AT THE NATIONAL AND INTERNATIONAL LEVELS .................................... 32 4 4.1 The connection between the two levels .............................. 32 4.2 Why the rule of law at the national level depends on international law ......................................................................... 34 4.3 Why the rule of law at the international level depends on national law ................................................................................. 37 5 REFERENCES TO FURTHER READING ..................................... 40 5 Foreword The purpose of this Guide is to provide an orientation for politicians regarding the basic elements of the rule of law. The Guide was inspired by discussions within the InterAction Council of Former Heads of State and Government. The process of preparing the material was initiated and supervised by the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at Lund University, Sweden, and the Hague Institute for the Internationalisation of Law (HiiL), the Netherlands. The first draft of the Guide was authored by Dr Ronald Janse, head, rule of law programme, at HiiL, during the Henry G. Schermers Fellowship at the Netherlands Institute for Advanced Study in the Humanities and Social Sciences. Further work was then performed within the two supervisory Institutes. The material was then reviewed by members of the InterAction Council and representatives of the Inter-Parliamentary Union. Valuable comments were also received from individual experts. The final review was made by Dr Hans Corell, Chairman of the Board of Trustees of the Raoul Wallenberg Institute and former Legal Counsel of the United Nations. A lodestar in the preparation of the Guide has been that it should be as short as possible so that it could be read by busy politicians at various levels. But it should also be useful to other decision-makers and policy- makers and to journalists and others who need to orient themselves in the topic. The Guide should also be easy to translate and publish in different languages. This is also the reason why there are no graphical illustrations or pictures in the Guide. The original language of the Guide is English. However, the Guide may be translated into other languages with the permission of the Institutes, provided the present Foreword is included and that the translation is a true representation of the text. The original is available on the websites of the supervisory Institutes, where translations will also be published. Lund and The Hague, August 2012 For the Raoul Wallenberg Institute of For the Hague Institute for the Human Rights and Humanitarian Law Internationalisation of Law Marie Tuma Sam Muller Director Director 6 1 INTRODUCTION The rule of law has become a global ideal and aspiration. It is supported by people, governments and organizations around the world. It is widely believed to be the cornerstone of national political and legal systems. It is also progressively recognized as a fundamental component in international relations. In the 2005 World Summit Outcome Document, the Heads of State and Government of the world agreed to recognize the need for universal adherence to and implementation of the rule of law at both the national and international levels. A year later, the United Nations General Assembly adopted a resolution on the rule of law at the national and international levels and has continued to do so at its annual sessions thereafter. In 2010, the General Assembly decided to convene a high-level meeting of the Assembly on the rule of law at the national and international levels during the high-level segment of the sixty-seventh session in 2012. The aim of this Guide is to explain the basics of the rule of law at both levels. It also explains that the rule of law at the national level partly depends on the rule of law at the international level, and vice versa. The genesis of the Guide is a discussion among members of the InterAction Council of Former Heads of State and Government in June 2008. In their Final Communiqué from the 26th Annual Plenary Session of the Council, held in Stockholm, Sweden, on 25-27 June 2008, they addressed among other questions “Restoring International Law”. As it appears from their website the InterAction Council was established in 1983 as an independent international organization to mobilize the experience, energy and international contacts of a group of statesmen who have held the highest office in their own countries. Council members jointly develop recommendations on, and practical solutions for the political, economic and social problems confronting humanity. During the preparation of their 2008 Communiqué the point was made that there was a need to raise the awareness of politicians of the basics of international law and the meaning of the rule of law. This idea was then developed further within the Raoul Wallenberg Institute of Human Rights and Humanitarian Law and the Hague Institute for the Internationalisation of Law (HiiL). It was also discussed in meetings organized by the World Justice Project. In this context readers of the Guide may be interested to see how their country is assessed in the Rule of Law Index referred to at the end. 7 In the process, the Inter-Parliamentary Union (IPU) – the international organization of Parliaments, established in 1889 – was also engaged. The IPU is the focal
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