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Universal Jurisdiction of Rule of Law Vis-a-Vis Human Rights

The rule of law, it is argued, is preferable to that of any individual. - Aristotle, Politics

The ideal of the Rule of Law (hereafter - ROL), which can be traced back at least as far as Aristotle and Plato, is profoundly embedded in the public political cultures and constitutional jurisprudence of modern democratic societies. It is one of a cluster of ideals constitutive of modern political morality; the others being human rights, democracy, and perhaps also the principles of free market economy. Open any newspaper and you will see the Rule of Law cited and deployed-usually as a matter of reproach, occasionally as an affirmative aspiration, and usually as a benchmark of political legitimacy. The human being and human rights italicize this substantive perception of the ROL, with a proper stability among the different rights and between human rights and the bona fide necessities of the society. The substantive ROL “is the rule of proper law, which balances the needs of society and the individual.” Thus, the ROL strikes a balance between society’s need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. Human rights and social activism practices contribute more than ever before to a multitudinous re-articulation of the rolled-up ROL notions. Rule of law is, of course, a concept that is inevitably contested over time, across legal traditions and disciplinary boundaries and in terms of the (varied) normative goals and ideals, it invokes. The imaginary of what we understand by rule of law is conditioned by the socio-political and legal-institutional histories that characterise different societies (Krygier, 2015).

Historically, the most authoritative interpretation of the ROL was propounded by A.V. Dicey:
1. The supremacy of regular law as opposed to arbitrary power

2. Equality before law

3. Incorporation of constitutional law as a binding part of the ordinary law of the land.

Henry de Bracton said, “The king is under no man but under God and the Law. No one is above law.” The dictum - Be you ever so high, the law is above you - is applicable to all, irrespective of his status, religion, caste, creed, sex or culture. The importance of the ideal is reflected in its inclusion in the Universal Declaration of Human Rights of 1948; “it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law.” Citations to ROL are now frequently catalogued in UN general assembly resolutions, reports and other human rights instruments. ROL is central to the European Convention, and one of the important perquisites to join the E.U. Considering the universality of human rights, this movement has increasingly encountered ideological, normative and political challenges and many of these issues implicate deep moral commitments, including religious views, autonomy and fundamental beliefs about the relationship of the individual to the state and other members of society. International community is marching towards a common goal of development, socio- economic security and human rights for all. To achieve this, all human beings, have to be treated with dignity and respect. The UN in its resolution S/2004/616, para. 6, has expressly stated that, “the rule of law requires that legal processes, institutions and substantive norms are consistent with human rights, including the core principles of equality under the law, accountability before the law and fairness in the protection and vindication of rights.”

Rule of law remains a constant theme in development policy and practice, and in recent policy discourse and international commitments, it has gained new levels of prominence. Of course, rule of law and justice are concepts bandied around for many decades, gaining ground at different times, for different reasons, and following (more or less) shifting normative orientations and goals across a range of development policy agendas. Despite this recognition, the history of international support to the sector’s reform is peppered with a sad trail of failures and chronic underachievement.This is evidenced in, for instance, the UN Declaration in 2012 at the High Level Meeting of the General Assembly on the Rule of Law (A/RES/67/1) and the inclusion of justice for all in the Sustainable Development Goals. Member states at the High Level Meeting committed to:[…] the rule of law and its fundamental importance for political dialogue and cooperation among all States and for the further development of the three main pillars upon which the United Nations is built: international peace and security, human rights and development. We agree that our collective response to the challenges and opportunities arising from the many complex political, social and economic transformations before us must be guided by the rule of law, as it is the foundation of friendly and equitable relations between States and the basis on which just and fair societies are built.

There can be no ROL in a society where human rights are not protected and human rights cannot be protected in a society without a robust ROL. The concept of ROL is the implementation mechanism for human rights, transforming them from a principle into a reality. The core principles like gender equality, affirmative action, economic justice, good governance are basic human rights safeguarded by ROL. The ROL provides the means of redress when those rights are not upheld or public resources are misused.It can be philosophically said that both these concepts are two sides of the same coin, therefore, have an indivisible and intrinsic relationship. De Mello suggested, rule of law will be a “fruitful principle to guide us toward agreement and results,” and “a touchstone for us in spreading the culture of human rights.” Rights without protection and sanction will always remain dead promises rather than a reality of economic development, democracy and political stability.

Suggested Citations:
Constitutional Originalism:

A Debate by Robert W. Bennett, Lawrence B. Solum; A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10thEdition 1960; Commissioner for Human Rights Sergio Vieira de Mello to the Fifty ninth Session of the Commission on Human Rights, Geneva, March 21, 2003.

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