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1. PRC International Law a. Matthieu Burnay, China in the UN Security Council: What are the implications for the
International Rule of Law i.
Introduction: The Rule of Law as a Priority for the United Nations
1. The United Nations (UN) has become increasingly preoccupied with the rule of law, as crystallised in the report of UN Secretary General
2. Kofi Annan 'The Rule of Law and Transitional Justice in Conflict and
a. This report articulates "a common language of justice for the
United Nations" and recognises the rule of law as "a concept at the very heart of the Organisation's mission"
b. It constitutes arguably the first coherent articulation of the concept at UN level c. and testifies to the growing interest for the rule of law at the beginning of the 21st century.
d. In this respect, various UN bodies, the UN Security Council and the UNSG have paved the way for the identification of the rule of law as a main priority in itself and not only as an annex to human rights protection and a component of peacekeeping
3. Following the release of the 2004 report, UN Member States repeatedly referred to the importance of the rule of law at the 2005
World Summit, from the area of development and investment to human rights:
a. they inter alia considered "good governance and the rule of law at the national and international levels [...] essential for sustained economic growth, sustainable development and the eradication of poverty and hunger",
b. boldly held that "human rights, the rule of law and democracy
[...] are interlinked and mutually reinforcing",
c. recognised "the need for universal adherence to and implementation of the rule of law at both the national and international levels",
d. and reaffirmed their commitment to "an international order based on the rule of law and international law, which is essential for peaceful coexistence and cooperation among states".
e. The link between rule of law and ensuring social and political stability has likewise become recognised
4. The rule of law now constitutes a key component of conflict prevention, conflict management and post-conflict peacebuilding a. It is used as a primary tool to respond to new security challenges (terrorism, failed states, transnational crimes) and to the expansion in the scope and complexity of peace missions.
b. In a time where the main challenges facing states constitute more diffuse and uncertain risks than well-defined and assessable threats, new tools are developed to strengthen the rule of law within states as well as to enhance the international rule of law c. The benefits of this development include "avoiding arbitrariness in the exercise of power, submitting international coercive processes to judicial review, and more general and consistent application of the law" in an international legal system which has a weak degree of institutionalisation, lacks a centralised and hierarchical set-up and is rather of a horizontal nature
5. Reflection on the RoL at the level of the UN has led to the adoption by consensus of the 'High-level Declaration on the RoL at the National and International Levels' by the UNGA in 2012 a. The Declaration is the fruit of a lengthy process that demonstrates both the importance attached to the rule of law as well as the difficulties to reach a consensus on it at the international level.
b. The result is a rather comprehensive document that recognises both the importance of the rule of law as a principle on which the relationship between states should be based, as well as its fundamental contribution to the three main pillars of the UN, i.e. peace and security, human rights and development.
c. The two characteristics of the Declaration:
i. First, the Declaration recognises the diversity in understandings of the rule of law as it points to the
"broad diversity of national experiences in the area of the rule of law".
1. The rule of law is, in other words, recognised as a home-grown concept whose definition and content vary depending on the legal culture,
constitutional tradition, economic, social and political system of the state at hand.
ii. Second, the Declaration insists that rule of law, human rights and democracy are 'interlinked and mutually reinforcing'
1. It therefore endorses a substantive (or "thick")
understanding of the rule of law that incorporates "elements of political morality". ii.
2. The relationship between these three core principles of the UN was furthermore reaffirmed by some of the pledges made by UN Member
States and by the EU
d. The Declaration does not contain a comprehensive definition of what the rule of law at the national and international levels actually means i.
While there is no UN operational definition of the RoL,
the main reference remains a definition given by Kofi
1. "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."
e. In light of this, Burnay and Wouters aim to understand China's contributions to the international rule of law in the UN"s principal organ that has the primary responsibility for the maintenance of peace and security (the UNSC)
i. As a permanent member of the UNSC, China has a veto right that makes it a significant actor in UNSC rule of law activities.
The UN Security Council and the International Rule of Law
1. It is generally known that the UNSC is a highly political body where the main power among the 15 members is concentrated in the hands of the five veto-wielding permanent members (P5) and where national interests are the main drivers of state policies.
2. Furthermore, the legitimacy shortcomings of the UNSC do not only pertain to its organisation and composition but also to the way the
Council acts, and whether it abides to the principle of legality in its actions.
3. Still, and somewhat paradoxically, in the course of the last two decades it has gradually become a key player in the development of the international RoL 4. It is arguable that the UNSC contributes to the enhancement of the rule of law within states and to support the development of the international rule of law through a. declaratory practice and peace operations,
b. (quasi-) legislative practice, and c. international adjudicative practice.
5. Declaratory practice and peace operations a. The first reference to the rule of law in the operative paragraph of an UNSC resolution was made in Resolution 1040 (1996),
which expressed the concerns of the UNSC for the deterioration in the situation in Burundi.
i. Here, the UNSC formally expressed its support "to facilitate a comprehensive political dialogue with the objective of promoting national reconciliation,
democracy, security and the rule of law in Burundi"
b. Since 1996, the UNSC has adopted consistent resolutions making reference to the RoL and denouncing a state of affairs that hampers the RoL in particular countries c. Moreover, it nowadays regularly mandates UN peacekeeping forces to support the rule of law i.
Rule of law shortcomings are being perceived as some of the root causes of conflicts and the restoration of the rule of law through peacekeeping serves as one of the main solutions to re-establish a sustainable and longstanding peace in conflicted areas.
ii. A rule of law component was included in UN missions such as those in
3. the Central African Republic,
5. Cbte d'Ivoire,
6. the Democratic Republic of Congo,
12. South Sudan
13. and Timor Leste iii.
The mandate of the RoL in these missions,
nevertheless, has been broad iv.
They aim to 'carry out institutional reforms', to support an independent judiciary and a strengthened legal system, to re-establish the correction system as well as to provide advice on legislative development v.
These measures have a direct positive impact on the reinforcement of norms and institutions, the fight against threats to the rule of law that include corruption and organised crime as well as elements of economic and social justice.
vi. They involve in practice civilian police, judicial experts,
criminal law and human rights specialists.
6. Quasi-legislative practices a. It is now widely accepted that the UNSC does not only react to individual threats or well-identified breaches of peace and security but also adopts measures that deal with threats to peace and security in a more general manner and without temporal and geographical limitations.
b. In practice, the UNSC has used its (quasi-) legislative practice by creating new laws applicable to all the members of the international community but also by simply extending the provisions of existing Treaties to non-State parties i.
It has done so in a number of cases acting under
Chapter VII of the UN Charter, especially since the terrorist attacks of 9/11.
1. Two weeks after the attacks, the Security
Council unanimously supported UNSC
Resolution 1373 (2001) (54) that lists actions that must be taken by states in order to tackle terrorism, including the obligation to freeze financial assets of individuals linked to terrorist activities as well as the prevention of financial support of terrorist activities within their territories.
ii. It also established the Counter-Terrorism Committee responsible for monitoring the anti-terrorism policies of
UN MS's c. This development has been criticised as concerns have arisen about the legitimacy of these rules and the conditions for their implementation in domestic legal orders d. The "selective and often political approach" to law-making,
questions to a certain extent the foundations of the rule of law as it challenges the predictability and general applicability of international law e. In the EU, the first decisions involving UN sanctions against terrorism led to the refusal by EU courts to assess the compatibility of these sanctions with fundamental rights i.
The Kadi judgments of the European Court of Justice reversed this line of cases and recognised that EU acts implementing UN anti-terrorism decisions go through judicial review in the EU legal order
7. International adjudicative practice a. Acting under Chapter VII, and thanks to a "very innovative"
interpretation of the UN Charter, the UNSC has created over the past 20 years various ad hoc international criminal tribunals, (i.e. the International Criminal Tribunal for the former
Yugoslavia (ICTY) and the International Criminal Tribunal for
b. These tribunals are being referred to as "ad hoc" because of their limited scope, territorial and temporal jurisdiction.
c. IT has also twice referred a situation to the ICC namely Darfur in 2005 and Libya in 2011, even though not all members of the
UNSC are parties to the Rome Statute d. The UNSC is accused of being inconsistent in the way it refers to the ICC.
i. The UNSC has, for instance, failed to refer the situation in Syria to the ICC in spite of numerous calls, including from the UN High Commissioner for Human Rights,
and because of a continuous opposition by Russia and
China e. The P5 members have, furthermore, the power to encourage or hamper the international community to collaborate on an
ICC case f. Finally, the UN Charter (Art. 96(1)) also gives the UNSC the power to make requests for advisory opinions to the
International Court of Justice (ICJ) "on any legal question",
which theoretically could be of great importance for the international rule of law.
i. Unlike the UNGA, however, the UNSC does not use this tool regularly.
g. The above-mentioned three sets of contributions by the UNSC
to the international rule of law should not make one forget that the very composition and functioning of the UNSC sit uneasily with a fundamental corollary of the rule of law, i.e. equality before the law i.
It indeed constitutes a rather flagrant derogation to
"the principle of the sovereign equality of all [...]
Members" laid down in Art. 2(1) of the UN Charter ii.
In addition, the privileges of the permanent members seem difficult to reconcile with the principle of legality,
which functions as a barrier to both factual inequalities
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