While, by the beginning of the 20th century,
some states had come to accept the Rule of Law as the basis of organised
society, it still remained largely undefined and it was certainly not
universally applied. The vast political, social and economic upheavals
that followed two world wars led to a realisation that the principles of
the Rule of Law required clearer definition and were indeed of universal
application.
The ending of colonial rule, the spread of
universal education, rapid scientific progress, rapid transmission of
ideas through mass media of communication, swifter transportation and
the reaction against arbitrary government and the horrors of war
awakened world leaders to the need for concerted action to protect Human
Rights under the Rule of Law. These are the factors which led to the
adoption of the Charter of the United Nations and subsequently of the
Universal Declaration of Human Rights of 1948 (See Appendix A).
The Universal Declaration of Human Rights,
formulated by the United Nations with care and deliberation, sets out
the common standards that should apply to human society, irrespective of
race, colour, sex, language, birth or other status. In effect it sets
forth the attributes of a democratic system and, with respect to the
function of the Rule of Law, states:
It is essential, if man is not to be
compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the
Rule of Law.
Other historical documents such as the Magna
Carta (1215), the American Declaration of Independence (1776) and La
Declaration des Droits de I' Homme (1789) made important impacts on
the ebb and flow of the battle for personal liberty but none had been as
specific and widely accepted as the Universal Declaration of Human
Rights. The provisions and ideals of the Charter and of the Universal
Declaration have now been reflected in many international conventions,
national constitutions and laws and have been relied upon by judicial
authorities. Those provisions of the Declaration which are justiciable
may well be regarded as now forming part of the customary law of
nations.
It was in this era that the International
Commission of Jurists undertook the task of defining the requirements of
the Rule of Law. It did so by means of studies and of discussions at
congresses and conferences, seminars and colloquia in different regions
of the world; the conclusions reached were published in Reports and in
the publications of the Commission. However, these conclusions were not
always conveniently classified or readily available. The purpose of the
present handbook is to correlate, in a convenient form, these
conclusions with each other and with the provisions of those great
international instruments that lay down the accepted standards for the
application of the Rule of Law and the protection of human rights: The
Universal Declaration of Human Rights, the European Convention on Human
Rights, the European Social-Charter, the Genocide Convention, the Hague
and Geneva Conventions, the I.L.O. Conventions, and the Convention on
Racial Discrimination.
Part I is in effect a compendium of the
conclusions of the congresses and conferences of the International
Commission of Jurists. These are grouped, as far as possible, under the
subject matter to which they relate. Part II provides a cross-reference
index to the I.C.J. conclusions and to the provisions of the principal
relevant international instruments in so far as they relate to human
rights. In the Appendices will be found the text of the Universal
Declaration and of the final statements of the I.C.J. congresses and
conferences as well as a list of the principal international conventions
referred to in Part II.
It is the hope of the Secretariat of the
Commission that this handbook will assist lawyers in finding
conveniently the standards that have been so carefully elaborated by the
Commission over the years and the relevant international instruments.
The Evolution of the Rule of Law through
the Commission
Law, as all other human institutions, is
never static. Within the changing pattern of human relations resulting
from progressive social and economic advancement, the concept of the
Rule of Law undergoes such adaptation and expansion as is necessary to
meet new and challenging circumstances.
It is in this context that the International
Commission of Jurists, through its congresses and conferences,
approached its task. It was recognised from the outset that the Rule of
Law embraced a broader conception of justice than the mere application
of legal rules whatever they might happen to be in any particular state
at any given time. It has also been the aim to emphasize the lawyer's
social responsibility to contribute to the promotion and understanding
of the Rule of Law.
From the first international congress
sponsored by the International Commission of Jurists, which was held in
Athens in 1955, there emerged the new dynamic concept of the Rule of
Law. The Act of Athens (See Appendix B), which crystallized the
deliberations of that congress, described the Rule of Law as springing
"from the rights of the individual developed through history in the
age-old struggle of mankind for freedom; which rights include freedom of
speech, press, worship, assembly and association and the right to free
elections to the end that laws are enacted by the duly elected
representatives of the people and afford equal protection to all".
The first important step in the development
of the dynamic concept of the Rule of Law was taken in January 1959 at
the Congress of Delhi, held under the aegis of the International
Commission of Jurists. This congress, having re-affirmed the principles
expressed in Athens, proceeded by the Declaration of Delhi (See Appendix
C) to:
"recognize that the Rule of Law is a dynamic
concept for the expansion and fulfillment of which jurists are primarily
responsible and which should be employed not only to safeguard and
advance the civil and political rights of the individual in a free
society, but also to establish social, economic, educational and
cultural conditions under which his legitimate aspirations and dignity
may be realized."
The African Conference on the Rule of Law,
held in Lagos, Nigeria in 1961, reaffirmed the basic principles
underlying the Rule of Law as enunciated in New Delhi. One important
aspect of the Lagos Conference was the recognition that these principles
were universal in their application. The Law of Lagos (See Appendix D)
laid down that the Rule of Law can be fully realized only under a system
of government established by the will of the people.
The next important step in the process of
definition and application of the Rule of Law was taken at the
International Congress of Jurists, held in Rio de Janeiro (Petropolis)
in December 1962. This congress considered such problems as how to
balance the freedom of the executive to act effectively with the
protection of the rights of the individual, and what safeguards should
be introduced against the abuse of power by the executive. The
Resolution of Rio (See Appendix E), which summarized the conclusions of
the congress, emphasized that the protection of the individual from
unlawful or excessive interference by government is one of the
foundations of the Rule of Law.
The Commission has always stressed the vital
importance of an independent judiciary to the proper functioning of the
Rule of Law. It has given equal emphasis to the essential role which
lawyers must be required to play in any system under the Rule of Law.
The following statement was included in the conclusions of the Congress
of Rio:
“In a changing and interdependent world,
lawyers should give guidance and leadership in the creation or new legal
concepts, institutions and techniques to enable man to meet the
challenge and the dangers or the times and to realize the aspirations or
all people."
While the earlier congresses and conferences
of the International Commission of Jurists focused attention on the
political, administrative and legal aspects of the Rule of Law, the
Conference of Bangkok, held in February 1965, emphasized its social,
economic, Educational and cultural aspects. The Declaration of Bangkok
(See Appendix F) recognized that the Rule of Law and representative
government were often endangered by hunger, poverty and unemployment and
that therefore lawyers should commit their skills and techniques to the
elimination of these evils. The conference also concerned itself with
the basic requirements of representative government under the Rule of
Law and the role which the lawyer was expected to play in a developing
society.
By laying stress on social and economic
problems, the conclusions and resolutions of Bangkok marked an important
step forward in the definition and elaboration of the principles
underlying the Rule of Law, but it was necessary to examine how these
conclusions and resolutions could be put into practical effect and more
particularly how the average citizen could be made to understand and
appreciate the significance of the Rule of Law and what it meant to his
personal freedom and advancement. The Ceylon Colloquium on the Rule of
Law was therefore organized and held in February 1966 as a follow-up to
the Bangkok Conference.
The Declaration of Colombo (See Appendix G)
stressed the duty of lawyers to bring to the attention of all members of
the community the practical relevance of the Rule of Law in their daily
life and aspirations. Besides the methods by which the Rule of Law could
be adequately introduced to the average citizen, the colloquium
considered such matters as problems arising from the nationalization of
property and examined how the citizen could be provided with an informal
and prompt means of redress of his grievances in his dealings with the
administration.
The Act of Athens, the Declaration of Delhi,
the Law of Lagos, the Resolution of Rio, the Declaration of Bangkok and
the Declaration of Colombo crystallize in summary form the conclusions
of the congresses and conferences held under the aegis of the
International Commission of Jurists.
SEAN MACBRIDE
Secretary-General