International Rule of Law and Professional Ethics

233 Pages·2014·1.213 MB·English

by  Vesselin Popovski

InternatIonal rule of law
and ProfessIonal ethIcs
This book makes a strong case for the recognition of the importance of rule of law
both in domestic law and courts, as well as the conception of international rule of
law, where the international tribunals have been critically examined. This original
volume recognizes the linkages between domestic and international rule of law
and connects them with ethics and governance. The substantial contribution
goes beyond the analysis of statutory law and develops a strong jurisprudential
foundation for protecting the rule of law. It is written by scholars with outstanding
records of publications, who significantly contributed to the advancement of
knowledge in a number of related fields. This explains the authoritative nature
and the intellectual rigour, the strong thematic framework and policy focus all
throughout, which does not lose sight of the scholarly arguments that are essential
in a book of this nature.
c. raj Kumar, o.P. Jindal Global university, India
The United Nations is the symbol of humanity’s aspirations for a rules-based
international order, whether this be in security, human rights or environmental
governance. Just as the organization provides a platform where the weak and the
powerful can interact on formally equal terms, so law mediates relations between
unequals by acting as a constraint on capricious behaviour and setting limits
on the arbitrary exercise of power. This admirable book traces the progressive
internationalization of the rule of law, offering along the way intriguing insights
into how various professions have helped to develop and implement international
ethical standards.
ramesh thakur, australian national university, australia
law, ethics and Governance series
series editor: charles sampford, director, Key centre for ethics, law,
Justice and Governance, Griffith University, Australia
recent history has emphasised the potentially devastating effects of governance
failures in governments, government agencies, corporations and the institutions of
civil society. ‘Good governance’ is seen as necessary, if not crucial, for economic
success and human development. although the disciplines of law, ethics, politics,
economics and management theory can provide insights into the governance
of organisations, governance issues can only be dealt with by interdisciplinary
studies, combining several (and sometimes all) of those disciplines. this series
aims to provide such interdisciplinary studies for students, researchers and relevant
practitioners.
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International rule of law
and Professional ethics
edited by
VesselIn PoPoVsKI
United Nations University Institute for
Sustainability and Peace (UNU-ISP), Japan
© Vesselin Popovski and the contributors 2014
all rights reserved. no part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
Vesselin Popovski has asserted his right under the copyright, designs and Patents act,
1988, to be identified as the editor of this work.
Published by
ashgate Publishing limited ashgate Publishing company
wey court east 110 cherry street
union road suite 3–1
farnham Burlington, Vt 05401–3818
surrey, Gu9 7Pt usa
england
www.ashgate.com
British Library Cataloguing in Publication Data
a catalogue record for this book is available from the British library
The Library of Congress has cataloged the printed edition as follows:
International rule of law and professional ethics / by Vesselin Popovski.
pages cm
Includes bibliographical references and index.
IsBn 978–1–4724–2803–5 (hardback : alk. paper) – IsBn 978–1–4724–2804–2
(ebook) – IsBn 978–1–4724–2805–9 (epub)
1. Professional ethics. 2. Professions – law and legislation. 3. rule of law.
4. law and globalization. 5. International and municipal law.
I. Popovski, Vesselin, editor of compilation.
K4360.I58 2014
174’.3–dc23 2013033241
IsBn 9781472428035 (hbk)
IsBn 9781472428042 (ebk – Pdf)
IsBn 9781472428059 (ebk – ePuB)
V
Contents
Notes on Contributors vii
Introduction 1
1 From Domestic to International Rule of Law: A Long and
Unfinished Journey 5
Vesselin Popovski
2 “Unqualified Human Good” or a Bit of “Ruling-Class Chatter”?
The Rule of Law at the National and International Level 19
Simon Chesterman
3 ‘Thin Theories’ of the Domestic and International Rule of Law 49
Charles Sampford
4 Reflections on the Rule of Law: Its Scope and Significance for
Partners in Development 77
John Barker
5 What Is ‘International Impartiality’? 101
Frédéric Mégret
6 Professions without Borders: Global Ethics and the International
Rule of Law 129
Charles Sampford
7 International Civil Service Ethics, Professionalism and the Rule
of Law 149
Lorne Sossin and Vasuda Sinha
8 International Rule of Law? Ethics and Impartiality of Legal
Professionals in International Criminal Tribunals 171
Chandra Lekha Sriram
9 Judicial Ethics at the International Criminal Tribunals 189
William A. Schabas
vi International Rule of Law and Professional Ethics
10 Conclusion 207
Vesselin Popovski
Index 219
Notes on Contributors
John Barker is Fellow of the Lauterpacht Centre for International Law, University
of Cambridge, and Chairman of the UK Foreign Compensation Commission,
London. With professional experience in Southern and West Africa spanning
28 years, he advises governments, international development agencies and non-
governmental organizations on administrative justice, human rights and justice
sector reform.
Simon Chesterman is Dean and Professor of the National University of Singapore
Faculty of Law. He is also Editor of the Asian Journal of International Law and
Secretary-General of the Asian Society of International Law.
Frédéric Mégret is Associate Professor of Law and Associate Dean of Research
at the University of McGill, Canada, and the Canada Research Chair on the Law
of Human Rights and Legal Pluralism.
Vesselin Popovski is Senior Academic Programme Officer, Head of Peace and
Security Studies, at the United Nations University Institute for Sustainability and
Peace (UNU-ISP), Tokyo.
Charles Sampford is Foundation Dean and Professor of Law and Research
Professor in Ethics, Griffith University, Brisbane, Australia, and Director of the
Institute of Ethics, Governance and Law.
William A. Schabas is Professor of International Law at Middlesex University
(London) and Professor of International Criminal Law and Human Rights at
Leiden University. He is also Honorary Chairman of the Irish Centre for Human
Rights and Professor Emeritus at the National University of Ireland, Galway.
Vasuda Sinha is a litigation associate with Norton Rose Fulbright Canada
LLP, where she focuses on complex commercial disputes. She has held the Fox
Scholarship to train as a barrister at the Middle Temple in London, England. She also
has experience in administrative, regulatory and international trade and investment
law and maintains a strong interest in public policy and public interest matters.
Lorne Sossin is Dean and Professor at Osgoode Hall Law School, York University.
His teaching interests span administrative and constitutional law, the regulation of
professions, civil litigation, public policy and the judicial process.
viii International Rule of Law and Professional Ethics
Chandra Lekha Sriram is Professor in Law at the University of London, School
of Oriental and African Studies. Her areas of teaching expertise include war and
human rights, public international law, international criminal law, human rights,
and conflict prevention and post-conflict peace-building.
Introduction
The rule of law is a long-standing ideal developed over millennia which demands
that all people – rich or poor, powerful or weak – should respect the law and be
equal before the law. The ideal is expressed in different ways as a concept, value,
ideal, principle with a range of cultures going back at least as far as the riverine
civilization of Babylon. It has been developed to become a central ideal in systems
of protection against tyrannical power. The law is respected by all and applies
equally to all and entails that the highest officers of the state will be investigated
and prosecuted in the same courts of law, within the same jurisdiction, penal code
and procedure, and by the same judges, as anyone else. The rule of law is not only
a high ideal, but also a method of daily governance; it regulates the separation
and independence of the legislative, executive and judicial branches of power,
and as such it is a solid guardian against potential arbitrariness of rulers, against
temptation to abuse power and violate citizens’ rights. The ‘rule of law, not of
men’ elevates the law above the rulers, requires that every official obeys the rules,
and this supremacy of the law above the powerful and the rich of the day is crucial
in the fight against tyranny, corruption, criminality and is an indispensable part
of good governance. The rule of law demands that the laws are clear, consistent,
stable, accepted and known by all; that the institutions are transparent, accountable,
efficient and legitimate; that the tribunals are independent, impartial, unbiased,
and issues fair judgments.
However, if the rule of law ideal is generally understood and in many cases
established at the national level, at the international level the concept is still in its
infancy. However, there are many who want it to grow, mature and strengthen.
They have been boosted by the 2005 declaration of the United Nations General
Assembly supporting not only the rule of law in domestic affairs but the rule
of law in international affairs. The United Nations and its University have
been particularly active in pursuing this agenda. In 2006, Nicolas Michel, then
United Nations General Counsel and Under Secretary-General for Legal Affairs
approached Ramesh Thakur, then Senior Vice Rector of the United Nations
University (UNU), about the best ways to promote the international rule of law.
Ramesh and I contacted Charles Sampford, a distinguished international lawyer
and Director of the Institute for Ethics, Governance and Law (IEGL) established
as a joint initiative of the UNU and Griffith University at his instigation in
2004. Sampford prepared a range of proposals and we determined the scope and
methodology of how to pursue this project.
Another prominent UN figure to press for the international rule of law was Hans
Corell, with whom I worked on the Princeton project on universal jurisdiction,