The Geneva Convention: the signature-and-seals page of the 1864 Geneva Convention, that established humane rules of war.
Original document as PDF in single pages, 1864.
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war. The singular term Geneva Convention usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War
(1939–45), which updated the terms of the two 1929 treaties, and added
two new conventions. The Geneva Conventions extensively defined the
basic rights of wartime prisoners (civilians and military personnel),
established protections for the wounded and sick, and established
protections for the civilians in and around a war-zone. The treaties of
1949 were ratified, in whole or with reservations, by 196 countries. Moreover, the Geneva Convention also defines the rights and protections afforded to non-combatants, yet, because the Geneva Conventions are about people in war, the articles do not address warfare proper—the use of weapons of war—which is the subject of the Hague Conventions (First Hague Conference, 1899; Second Hague Conference 1907), and the bio-chemical warfareGeneva Protocol
(Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous or other Gases, and of Bacteriological Methods of
Warfare, 1925).
History
Progression of Geneva Conventions from 1864 to 1949.
The Swiss businessman Henry Dunant went to visit wounded soldiers after the Battle of Solferino
in 1859. He was shocked by the lack of facilities, personnel, and
medical aid available to help these soldiers. As a result, he published
his book, A Memory of Solferino, in 1862, on the horrors of war. His wartime experiences inspired Dunant to propose:
A government treaty recognizing the neutrality of the agency and allowing it to provide aid in a war zone
The former proposal led to the establishment of the Red Cross in Geneva. The latter led to the 1864 Geneva Convention,
the first codified international treaty that covered the sick and
wounded soldiers in the battlefield. On 22 August 1864, the Swiss
government invited the governments of all European countries, as well as
the United States, Brazil, and Mexico, to attend an official diplomatic
conference. Sixteen countries sent a total of twenty-six delegates to
Geneva. On 22 August 1864, the conference adopted the first Geneva
Convention "for the Amelioration of the Condition of the Wounded in
Armies in the Field". Representatives of 12 states and kingdoms signed
the convention:
For both of these accomplishments, Henry Dunant became corecipient of the first Nobel Peace Prize in 1901.
On 20 October 1868 the first, unsuccessful, attempt to expand the
1864 treaty was undertaken. With the 'Additional Articles relating to
the Condition of the Wounded in War' an attempt was undertaken to
clarify some rules of the 1864 convention and to extend them to maritime
warfare. The Articles were signed but never ratified by all parties.
Only the Netherlands and the United States ratified the Articles. The Netherlands later withdrew their ratification. The protection of the victims of maritime warfare would later be realized by the third Hague Convention of 1899 and the tenth Hague Convention of 1907.
In 1906 thirty-five states attended a conference convened by the
Swiss government. On 6 July 1906 it resulted in the adoption of the "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field", which improved and supplemented, for the first time, the 1864 convention. It remained in force until 1970 when Costa Rica acceded to the 1949 Geneva Conventions.
The 1929 conference yielded two conventions that were signed on 27 July 1929. One, the "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field", was the third version to replace the original convention of 1864. The other was adopted after experiences in World War I had shown the deficiencies in the protection of prisoners of war under the Hague Conventions of 1899 and 1907. The "Convention relative to the Treatment of Prisoners of War" was not to replace these earlier conventions signed at The Hague, rather it supplemented them.
Inspired by the wave of humanitarian and pacifistic enthusiasm following World War II and the outrage towards the war crimes disclosed by the Nuremberg Trials,
a series of conferences were held in 1949 reaffirming, expanding and
updating the prior Geneva and Hague Conventions. It yielded four
distinct conventions:
The First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" was the fourth update of the original 1864 convention and replaced the 1929 convention on the same subject matter.
The Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" replaced the Hague Convention (X) of 1907.[16]
It was the first Geneva Convention on the protection of the victims of
maritime warfare and mimicked the structure and provisions of the First
Geneva Convention.
The Third Geneva Convention "relative to the Treatment of Prisoners of War" replaced the 1929 Geneva Convention that dealt with prisoners of war.
In addition to these three conventions, the conference also added a new elaborate Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War".
It was the first Geneva Convention not to deal with combatants, rather
it had the protection of civilians as its subject matter. The 1899 and
1907 Hague Conventions had already contained some provisions on the
protection of civilians and occupied territory. Article 154 specifically
provides that the Fourth Geneva Convention is supplementary to these
provisions in the Hague Conventions.
The third protocol emblem, also known as the Red Crystal
Despite the length of these documents, they were found over time to be incomplete. In fact, the very nature of armed conflicts had changed with the beginning of the Cold War era, leading many to believe that the 1949 Geneva Conventions were addressing a largely extinct reality:
on the one hand, most armed conflicts had become internal, or civil
wars, while on the other, most wars had become increasingly asymmetric.
Moreover, modern armed conflicts were inflicting an increasingly higher
toll on civilians, which brought the need to provide civilian persons
and objects with tangible protections in time of combat, thus bringing a
much needed update to the Hague Conventions of 1899 and 1907.
In light of these developments, two Protocols were adopted in 1977 that
extended the terms of the 1949 Conventions with additional protections.
In 2005, a third brief Protocol was added establishing an additional protective sign for medical services, the Red Crystal, as an alternative to the ubiquitous Red Cross and Red Crescent emblems, for those countries that find them objectionable.
Commentaries
The Geneva Conventions of 12 August 1949. Commentary (The Commentaries)
is a series of four volumes of books published between 1952 and 1958
and containing commentaries to each of the four Geneva Conventions. The
series was edited by Jean Pictet who was the vice-president of the International Committee of the Red Cross. The Commentaries are often relied upon to provide authoritative interpretation of the articles.
Contents
Parties to GC I–IV and P I–III
Parties to GC I–IV and P I–II
Parties to GC I–IV and P I and III
Parties to GC I–IV and P I
Parties to GC I–IV and P III
Parties to GC I–IV and no P
The Geneva Conventions are rules that apply only in times of armed
conflict and seek to protect people who are not or are no longer taking
part in hostilities; these include the sick and wounded of armed forces
on the field, wounded, sick, and shipwrecked members of armed forces at sea, prisoners of war, and civilians.
The first convention dealt with the treatment of wounded and sick armed forces in the field.
The second convention dealt with the sick, wounded, and shipwrecked members of armed forces at sea.
The third convention dealt with the treatment of prisoners of war during times of conflict.
The fourth convention dealt with the treatment of civilians and their protection during wartime.
Conventions
In diplomacy, the term convention does not have its common meaning as an assembly of people. Rather, it is used in diplomacy to mean an international agreement, or treaty.
The First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, revised in 1906, 1929 and finally 1949);
The Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the Hague Convention (X) 1907);
The Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 1949);
With two Geneva Conventions revised and adopted, and the second and
fourth added, in 1949 the whole set is referred to as the "Geneva
Conventions of 1949" or simply the "Geneva Conventions". Usually only
the Geneva Conventions of 1949 are referred to as First, Second, Third
or Fourth Geneva Convention. The treaties of 1949 were ratified, in
whole or with reservations, by 196 countries.
Protocols
The 1949 conventions have been modified with three amendment protocols:
Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts
Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts
Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.
Application
The
Geneva Conventions apply at times of war and armed conflict to
governments who have ratified its terms. The details of applicability
are spelled out in Common Articles 2 and 3. The topic of applicability
has generated some controversy. When the Geneva Conventions apply,
governments have surrendered some of their national sovereignty by signing these treaties.
Common Article 2 relating to international armed conflicts
This article states that the Geneva Conventions apply to all cases of international conflict, where at least one of the warring nations have ratified the Conventions. Primarily:
The Conventions apply to all cases of declared war between signatory nations. This is the original sense of applicability, which predates the 1949 version.
The Conventions apply to all cases of armed conflict between two or
more signatory nations, even in the absence of a declaration of war.
This language was added in 1949 to accommodate situations that have all
the characteristics of war without the existence of a formal declaration
of war, such as a police action.
The Conventions apply to a signatory nation even if the opposing
nation is not a signatory, but only if the opposing nation "accepts and
applies the provisions" of the Conventions.
Article 1 of Protocol I further clarifies that armed conflict against colonial domination and foreign occupation also qualifies as an international conflict.
When the criteria of international conflict have been met, the full protections of the Conventions are considered to apply.
Common Article 3 relating to non-international armed conflict
This article states that the certain minimum rules of war apply to armed conflicts " where at least one Party is not a State". The interpretation of the term armed conflict and therefore the applicability of this article is a matter of debate.
For example, it would apply to conflicts between the Government and
rebel forces, or between two rebel forces, or to other conflicts that
have all the characteristics of war, whether carried out within the
confines of one country or not.
There is two criteria to distinguish non-international armed conflicts
from lower forms of violence. The level of violence has to be of certain
intensity, for example when the state cannot contain the situation with
regular police forces. Also, involved non-state groups need to have a
certain level of organization, like a military command structure.
The other Geneva Conventions are not applicable in this situation but only the provisions contained within Article 3, and additionally within the language of Protocol II. The rationale for the limitation is to avoid conflict with the rights of Sovereign States that were not part of the treaties. When the provisions of this article apply, it states that:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention,
or any other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria. To this end,
the following acts are and shall remain prohibited at any time and in
any place whatsoever with respect to the above-mentioned persons:
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
outrages upon dignity, in particular humiliating and degrading treatment; and
the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicialguarantees which are recognized as indispensable by civilized peoples.
The wounded and sick shall be collected and cared for.
Enforcement
Protecting powers
The term protecting power has a specific meaning under these
Conventions. A protecting power is a state that is not taking part in
the armed conflict, but that has agreed to look after the interests of a
state that is a party to the conflict. The protecting power is a
mediator enabling the flow of communication between the parties to the
conflict. The protecting power also monitors implementation of these
Conventions, such as by visiting the zone of conflict and prisoners of
war. The protecting power must act as an advocate for prisoners, the
wounded, and civilians.
Not all violations of the treaty are treated equally. The most serious crimes are termed grave breaches, and provide a legal definition of a war crime.
Grave breaches of the Third and Fourth Geneva Conventions include the
following acts if committed against a person protected by the
convention:
Nations who are party to these treaties must enact and enforce
legislation penalizing any of these crimes. Nations are also obligated
to search for persons alleged to commit these crimes, or persons having ordered them to be committed, and to bring them to trial regardless of their nationality and regardless of the place where the crimes took place.
Some scholars hold that Common Article 3 deals with these situations, supplemented by Protocol II (1977). These set out minimum legal standards that must be followed for internal conflicts. International tribunals, particularly the International Criminal Tribunal for the former Yugoslavia (ICTY), have clarified international law in this area. In the 1999 Prosecutor v. Dusko Tadic judgement, the ICTY ruled that grave breaches apply not only to international conflicts, but also to internal armed conflict. Further, those provisions are considered customary international law.
Controversy has arisen over the US designation of irregular opponents as "unlawful enemy combatants" especially in the SCOTUS judgments over the Guantanamo Bay brig facility Hamdi v. Rumsfeld, Hamdan v. Rumsfeld and Rasul v. Bush, and later Boumediene v. Bush. President George W. Bush, aided by Attorneys-General John Ashcroft and Alberto Gonzales and General Keith B. Alexander,
claimed the power, as Commander in Chief of the Armed Forces, to
determine that any person, including an American citizen, who is
suspected of being a member, agent, or associate of Al Qaeda, the Taliban,
or possibly any other terrorist organization, is an "enemy combatant"
who can be detained in U.S. military custody until hostilities end,
pursuant to the international law of war.
The application of the Geneva Conventions to the 2014 conflict in
Ukraine (Crimea) is a troublesome problem because some of the personnel
who engaged in combat against the Ukrainians were not identified by
insignia, although they did wear military-style fatigues. The types of comportment qualified as acts of perfidy under jus in bello
doctrine are listed in Articles 37 through 39 of the Geneva Convention;
the prohibition of fake insignia is listed at Article 39.2, but the law
is silent on the complete absence of insignia. The status of POW
captured in this circumstance remains a question.
When the Paris Agreement in December 2015 called for the IPCC to put together a “Special Report” on Global Warming of 1.5°C,
scientists knew very little about the exact differences that half a
degree makes (1.5°C versus 2°C). Never before have so many independent
studies been conducted at such short notice, in order to meet this
pressing question of the global climate negotiations community. Is a
warming of 2°C above pre-industrial levels sufficiently low a limit to
avoid dangerous anthropogenic interference with the climate system, and,
if not, can we implement a lower limit?
Many researchers worked tirelessly to get their scientific
publications accepted before the cutoff deadline in May 2018. And now we
have the assessed result of their studies, summarised in about 30
pages.
So what have climate scientists learned?
First, nothing fundamentally new or surprising has arisen. I vividly
remember being involved in crafting the sentences on climate change
impacts at different temperatures in the IPCC’s previous full assessment
round, which was finalised in 2014. We concluded that more warming increases the likelihood of “severe, pervasive, and irreversible impact”, that “some risks of climate change
are considerable at 1 or 2°C above pre-industrial levels” and that “the
overall risks of climate change impacts can be reduced by limiting the
rate and magnitude of climate change”. It is important in interpreting
the new report that the IPCC has never said that 2°C was “safe”.
The 2018 report now puts the particular differences between 1.5°C and
2°C under a magnifying glass. And it comes up with numbers to
demonstrate the significant difference between the two, like in a
statement that the lower temperature would mean 50% fewer people
“exposed to a climate change-induced increase in water stress”.
I also remember very well that another IPCC contact group that I co-chaired, in Berlin, concluded that reaching a 2°C target would probably entail large-scale afforestation and/or production of bioenergy with carbon dioxide capture and storage (BECCS).
BECCS
involves growing plants to take carbon dioxide out of the air, burning
them for energy, and then capturing and storing the emitted CO2. Photo
credit: Pamas / Shutterstock.
In order to reach 1.5°C, no one should be surprised that the need to suck carbon dioxide out of the atmosphere
and store it somewhere will only become greater. And indeed the 2018
report confirms that some sort of “carbon dioxide removal” will be
necessary. Its use can remain limited, however (without even the need
for BECCS) provided that there are fast and significant measures to cut
emissions and “lower energy and land demand”.
Pipe dreams of 1.5°C
Providing the additional, detailed information to policymakers is all
very useful. But what strikes me about this latest report is its tone.
For the scientists involved it has become apparent (which they never
said in so many words before) that the goalpost should be shifted from
2°C (which was already hard to reach) to 1.5°C (which is much harder to
reach). Which leads one to ask: if climate scientists
are so adamant about this now, why did they not create the opportunity
themselves to issue such a warning before? And why did they wait for
global leaders to ask them the question?
Politicians have often erroneously pointed to climate science
– and the IPCC as its assessor in particular – as having provided the
underpinning of the globally agreed target of 2°C. In 2015, the
politicians effectively asked scientists to underpin a more stringent
target. And they obliged. The scientific community needs to make it as
clear as they can that it is not them who have now decided that 1.5°C is
“safe”. The IPCC has only provided the evidence base that can inform
politicians in their deliberations of whether they indeed wish to stay
below that other target in the Paris Agreement, the limit of 1.5°C.
In those deliberations, the feasibility of staying below 1.5°C will
feature prominently. And here the scientists will find it hard to admit
that the scenarios they have conjured up are not at all realistic – they
are more like a pipe dream. If they say, for instance, that large-scale
carbon capture can be avoided by implementing incredibly fast and deep
emission cuts now, they kind of set the world up for having to implement
carbon capture anyway, given the difficulties that are involved in fast
deep emission cuts worldwide.
The IPCC
did not go further than stating that there are some “feasibility and
sustainability constraints” related to many of its scenarios. A smart
reader will understand that this means that these scenarios are not
really feasible, politically and (since politics is fractured)
economically.
Arthur Petersen is Professor of Science, Technology and Public Policy at UCL.
Mosaic
representing both the judicial and legislative aspects of law. The
woman on the throne holds a sword to chastise the guilty and a palm branch to reward the meritorious. Glory surrounds her head, and the aegis of Minerva signifies the armor of righteousness and wisdom.
The rule of law is "The authority and influence of law
in society, especially when viewed as a constraint on individual and
institutional behavior; (hence) the principle whereby all members of a
society (including those in government) are considered equally subject
to publicly disclosed legal codes and processes".
The phrase "the rule of law" refers to a political situation, not to
any specific legal rule. Use of the phrase can be traced back to 16th
century Britain, and in the following century the Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings. John Locke
wrote that freedom in society means being subject only to laws made by a
legislature that apply to everyone, with a person being otherwise free
from both governmental and private restrictions upon liberty. "The rule
of law" was further popularized in the 19th century by British jurist A. V. Dicey. However, the principle, if not the phrase itself, was recognized by ancient thinkers; for example, Aristotle wrote: "It is more proper that law should govern than any one of the citizens".
The rule of law implies that every person is subject to the law,
including people who are lawmakers, law enforcement officials, and
judges. In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law.[citation needed]
Lack of the rule of law can be found in both democracies and
dictatorships, for example because of neglect or ignorance of the law,
and the rule of law is more apt to decay if a government has
insufficient corrective mechanisms for restoring it.
History
Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey, development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India, and Rome.
Antiquity
In the West, the ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.
Plato nevertheless hoped that the best men would be good at respecting
established laws, explaining that "Where the law is subject to some
other authority and has none of its own, the collapse of the state, in
my view, is not far off; but if law is the master of the government and
the government is its slave, then the situation is full of promise and
men enjoy all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law:
It is more proper that law should govern than any one of
the citizens: upon the same principle, if it is advantageous to place
the supreme power in some particular persons, they should be appointed
to be only guardians, and the servants of the laws.
The Roman statesman Cicero is often cited as saying, roughly: "We are all servants of the laws in order to be free."
During the Roman Republic, controversial magistrates might be put on
trial when their terms of office expired. Under the Roman Empire, the
sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.
In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law. In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.
There has recently been an effort to reevaluate the influence of the Bible on Western constitutional law. In the Old Testament, the book of Deuteronomy
imposes certain restrictions on the king, regarding such matters as the
numbers of wives he might take and of horses he might acquire (for his
own use). According to Professor Bernard M. Levinson, "This legislation was so utopian in its own time that it seems never to have been implemented...." The Deuteronomic social vision may have influenced opponents of the divine right of kings, including Bishop John Ponet in sixteenth-century England.
Middle Ages
In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law.
Alfred the Great, Anglo-Saxon king in the 9th century, reformed the law of his kingdom and assembled a law code (the Doom Book)
which he grounded on biblical commandments. He held that the same law
had to be applied to all persons, whether rich or poor, friends or
enemies. This was likely inspired by Leviticus
19:15: "You shall do no iniquity in judgment. You shall not favor the
wretched and you shall not defer to the rich. In righteousness you are
to judge your fellow."
In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates back under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes. This foundation for a constitution was carried into the United States Constitution.
The first known use of this English phrase occurred around AD 1500. Another early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons:
Amongst many other points of happiness and freedom which
your majesty's subjects of this kingdom have enjoyed under your royal
progenitors, kings and queens of this realm, there is none which they
have accounted more dear and precious than this, to be guided and
governed by the certain rule of the law which giveth both to the
head and members that which of right belongeth to them, and not by any
uncertain or arbitrary form of government....
In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions
(according to his own report) "that the law was the golden met-wand and
measure to try the causes of the subjects; and which protected His
Majesty in safety and peace: with which the King was greatly offended,
and said, that then he should be under the law, which was treason to
affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)."
Among the first modern authors to use the term and give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the traditional formulation rex lex ("the king is law"). James Harrington wrote in Oceana (1656), drawing principally on Aristotle’s Politics, that among forms of government an “Empire of Laws, and not of Men” was preferable to an “Empire of Men, and not of Laws”.
The natural liberty of man is to be free from any
superior power on earth, and not to be under the will or legislative
authority of man, but to have only the law of nature for his rule. The
liberty of man, in society, is to be under no other legislative power,
but that established, by consent, in the commonwealth; nor under the
dominion of any will, or restraint of any law, but what that legislative
shall enact, according to the trust put in it. Freedom then is not what
Sir Robert Filmer tells us, Observations, A. 55. a liberty for every
one to do what he lists, to live as he pleases, and not to be tied by
any laws: but freedom of men under government is, to have a standing
rule to live by, common to every one of that society, and made by the
legislative power erected in it; a liberty to follow my own will in all
things, where the rule prescribes not; and not to be subject to the
inconstant, uncertain, unknown, arbitrary will of another man: as
freedom of nature is, to be under no other restraint but the law of
nature.
In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."
The influence of Britain, France and the United States
contributed to spreading the principle of the rule of law to other
countries around the world.
Meaning and categorization of interpretations
The Oxford English Dictionary has defined "rule of law" this way:
The authority and influence of law in society, esp. when
viewed as a constraint on individual and institutional behaviour;
(hence) the principle whereby all members of a society (including those
in government) are considered equally subject to publicly disclosed
legal codes and processes.
Rule of law implies that every citizen is subject to the law. It
stands in contrast to the idea that the ruler is above the law, for
example by divine right.
Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion". Among modern legal theorists, one finds that at least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and a substantive or "thick" definition; one occasionally encounters a third "functional" conception.
Formalist definitions of the rule of law do not make a judgment about
the "justness" of law itself, but define specific procedural attributes
that a legal framework must have in order to be in compliance with the
rule of law. Substantive conceptions of the rule of law go beyond this
and include certain substantive rights that are said to be based on, or
derived from, the rule of law.
Most legal theorists believe that the rule of law has purely
formal characteristics, meaning that the law must be publicly declared
(prohibitions or exigencies), with prospective application (punishments
or consequences tied to a given prohibition or exigency), and possess
the characteristics of generality (usually meaning consistency and
comprehensibility), equality (that is, applied equally throughout all
society), and certainty (that is, certainty of application for a given
situation), but there are no requirements with regard to the content of
the law. Others, including a few legal theorists, believe that the rule
of law necessarily entails protection of individual rights. Within legal
theory, these two approaches to the rule of law are seen as the two
basic alternatives, respectively labelled the formal and substantive
approaches. Still, there are other views as well. Some believe that
democracy is part of the rule of law.
The "formal" interpretation is more widespread than the
"substantive" interpretation. Formalists hold that the law must be
prospective, well-known, and have characteristics of generality,
equality, and certainty. Other than that, the formal view contains no
requirements as to the content of the law.
This formal approach allows laws that protect democracy and individual
rights, but recognizes the existence of "rule of law" in countries that
do not necessarily have such laws protecting democracy or individual
rights.
The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.
The functional interpretation of the term "rule of law",
consistent with the traditional English meaning, contrasts the "rule of
law" with the "rule of man".
According to the functional view, a society in which government
officers have a great deal of discretion has a low degree of "rule of
law", whereas a society in which government officers have little
discretion has a high degree of "rule of law". Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.
The ancient concept of rule of law can be distinguished from rule by
law, according to political science professor Li Shuguang: "The
difference ... is that, under the rule of law, the law is preeminent and
can serve as a check against the abuse of power. Under rule by law, the
law is a mere tool for a government, that suppresses in a legalistic
fashion."
Status in various jurisdictions
2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society.
90–100th percentile*
75–90th percentile
50–75th percentile
25–50th percentile
10–25th percentile
0–10th percentile
*Percentile rank indicates the percentage of countries worldwide that rate below the selected country.
The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. Research, like the Worldwide Governance Indicators,
defines the rule of law as: "the extent to which agents have confidence
and abide by the rules of society, and in particular the quality of
contract enforcement, the police and the courts, as well as the
likelihood of crime or violence."
Based on this definition the Worldwide Governance Indicators project
has developed aggregate measurements for the rule of law in more than
200 countries, as seen in the map below. A government based on the rule of law can be called a "nomocracy", from the Greeknomos (law) and kratos (power or rule).
In France and Germany the concepts of rule of law (Etat de droit and Rechtsstaat
respectively) are analogous to the principles of constitutional
supremacy and protection of fundamental rights from public authorities, particularly the legislature. France was one of the early pioneers of the ideas of the rule of law. The German interpretation is more "rigid" but similar to that of France and the United Kingdom.
Finland's constitution
explicitly requires rule of law by stipulating that "the exercise of
public powers shall be based on an Act. In all public activity, the law
shall be strictly observed."
United Kingdom
In the United Kingdom the rule of law is a long-standing principle of the way the country is governed, dating from Magna Carta in 1215 and the Bill of Rights 1689. In the 19th century, A. V. Dicey, a constitutional scholar and lawyer, wrote of the twin pillars of the British constitution in his classic work Introduction to the Study of the Law of the Constitution (1885); these two pillars are the rule of law and parliamentary sovereignty.
Americas
United States
All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government
has considerable discretion: the legislative branch is free to decide
what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, and the executive branch also has various discretionary powers including prosecutorial discretion.
Scholars continue to debate whether the U.S. Constitution adopted
a particular interpretation of the "rule of law", and if so, which one.
For example, John Harrison asserts that the word "law" in the
Constitution is simply defined as that which is legally binding, rather
than being "defined by formal or substantive criteria", and therefore
judges do not have discretion to decide that laws fail to satisfy such
unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.
Some modern scholars contend that the rule of law has been
corroded during the past century by the instrumental view of law
promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound.
For example, Brian Tamanaha asserts: "The rule of law is a
centuries-old ideal, but the notion that law is a means to an end became
entrenched only in the course of the nineteenth and twentieth
centuries."
Others argue that the rule of law has survived but was
transformed to allow for the exercise of discretion by administrators.
For much of American history, the dominant notion of the rule of law, in
this setting, has been some version of A. V. Dicey's: "no man is
punishable or can be lawfully made to suffer in body or goods except for
a distinct breach of law established in the ordinary legal manner
before the ordinary Courts of the land." That is, individuals should be
able to challenge an administrative order by bringing suit in a court of
general jurisdiction. As the dockets of worker compensation
commissions, public utility commissions and other agencies burgeoned, it
soon became apparent that letting judges decide for themselves all the
facts in a dispute (such as the extent of an injury in a worker's
compensation case) would overwhelm the courts and destroy the advantages
of specialization that led to the creation of administrative agencies
in the first place. Even Charles Evans Hughes, a Chief Justice of the
United States, believed "you must have administration, and you must have
administration by administrative officers." By 1941, a compromise had
emerged. If administrators adopted procedures that more or less tracked
"the ordinary legal manner" of the courts, further review of the facts
by "the ordinary Courts of the land" was unnecessary. That is, if you
had your "day in commission", the rule of law did not require a further
"day in court". Thus Dicey's rule of law was recast into a purely
procedural form.
James Wilson said during the Philadelphia Convention
in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may
be destructive; and yet not be so unconstitutional as to justify the
Judges in refusing to give them effect." George Mason
agreed that judges "could declare an unconstitutional law void. But
with regard to every law, however unjust, oppressive or pernicious,
which did not come plainly under this description, they would be under
the necessity as judges to give it a free course." Chief Justice John Marshall (joined by Justice Joseph Story)
took a similar position in 1827: "When its existence as law is denied,
that existence cannot be proved by showing what are the qualities of a
law."
Asia
East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism,
which advocated strict adherence to law. The influence of one school of
thought over the other has varied throughout the centuries. One study
indicates that throughout East Asia, only South Korea, Singapore, Japan,
Taiwan and Hong Kong have societies that are robustly committed to a
law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:
Apart from a number of states and territories, across the
continent there is a huge gulf between the rule of law rhetoric and
reality. In Thailand, the police force is an organized crime gang. In
Cambodia, judges are proxies for the ruling political party ... That a
judge may harbor political prejudice or apply the law unevenly are the
smallest worries for an ordinary criminal defendant in Asia. More likely
ones are: Will the police fabricate the evidence? Will the prosecutor
bother to show up? Will the judge fall asleep? Will I be poisoned in
prison? Will my case be completed within a decade?
In countries such as China and Vietnam, the transition to a market
economy has been a major factor in a move toward the rule of law,
because the rule of law is important to foreign investors and to
economic development. It remains unclear whether the rule of law in
countries like China and Vietnam will be limited to commercial matters
or will spill into other areas as well, and if so whether that spillover
will enhance prospects for related values such as democracy and human
rights. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.
In Thailand, a kingdom that has had a constitution since the
initial attempt to overthrow the absolute monarchy system in 1932, the
rule of law has been more of a principle than actual practice.
Ancient prejudices and political bias have been present in the three
branches of government with each of their foundings, and justice has
been processed formally according to the law but in fact more closely
aligned with royalist principles that are still advocated in the 21st
century.
In November 2013, Thailand faced still further threats to the rule of
law when the executive branch rejected a supreme court decision over how
to select senators.
In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India
may have been intended to provide details that would limit the
opportunity for judicial discretion, the more text there is in a
constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."
Japan had centuries of tradition prior to World War II,
during which there were laws, but they did not provide a central
organizing principle for society, and they did not constrain the powers
of government (Boadi, 2001). As the 21st century began, the percentage
of people who were lawyers and judges in Japan remained very low
relative to western Europe and the United States, and legislation in
Japan tended to be terse and general, leaving much discretion in the
hands of bureaucrats.
Organizations
Various organizations are involved in promoting the rule of law.
The Council of Europe
The Statute of the Council of Europe
characterizes the rule of law as one of the core principles which the
establishment of the organization based on. The paragraph 3 of the
preamble of the Statute of the Council of Europe states: "Reaffirming
their devotion to the spiritual and moral values which are the common
heritage of their peoples and the true source of individual freedom,
political liberty and the rule of law, principles which form the basis
of all genuine democracy." The Statute lays the compliance with the rule
of law principles as a condition for the European states to be a full
member of the organization.
International Commission of Jurists
In 1959, an event took place in New Delhi and speaking as the International Commission of Jurists,
made a declaration as to the fundamental principle of the rule of law.
The event consisted of over 185 judges, lawyers, and law professors from
53 countries. This later became known as the Declaration of Delhi.
During the declaration they declared what the rule of law implied. They
included certain rights and freedoms, an independent judiciary and
social, economic and cultural conditions conducive to human dignity. The
one aspect not included in The Declaration of Delhi, was for rule of
law requiring legislative power to be subject to judicial review.
...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.
The General Assembly has considered rule of law as an agenda item
since 1992, with renewed interest since 2006 and has adopted resolutions
at its last three sessions. The Security Council has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security, children in armed conflict, and the protection of civilians in armed conflict. The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education.
International Bar Association
The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:
An independent, impartial judiciary; the presumption of
innocence; the right to a fair and public trial without undue delay; a
rational and proportionate approach to punishment; a strong and
independent legal profession; strict protection of confidential
communications between lawyer and client; equality of all before the
law; these are all fundamental principles of the Rule of Law.
Accordingly, arbitrary arrests; secret trials; indefinite detention
without trial; cruel or degrading treatment or punishment; intimidation
or corruption in the electoral process, are all unacceptable. The Rule
of Law is the foundation of a civilised society. It establishes a
transparent process accessible and equal to all. It ensures adherence to
principles that both liberate and protect. The IBA calls upon all
countries to respect these fundamental principles. It also calls upon
its members to speak out in support of the Rule of Law within their
respective communities.
World Justice Project
As used by the World Justice Project,
a non-profit organization committed to advancing the rule of law around
the world, the rule of law refers to a rules-based system in which the
following four universal principles are upheld:
The government and its officials and agents are accountable under the law;
The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;
The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;
Access to justice is provided by competent, independent, and ethical
adjudicators, attorneys or representatives, and judicial officers who
are of sufficient number, have adequate resources, and reflect the
makeup of the communities they serve.
The World Justice Project has developed an Index to measure the
extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index
is composed of 9 factors and 52 sub-factors, and covers a variety of
dimensions of the rule of law—such as whether government officials are
accountable under the law, and whether legal institutions protect
fundamental rights and allow ordinary people access to justice.
The International Development Law Organization (IDLO)
The International Development Law Organization
(IDLO) is an intergovernmental organization with a joint focus on the
promotion of rule of law and development. It works to empower people and
communities to claim their rights, and provides governments with the
know-how to realize them.
It supports emerging economies and middle-income countries to
strengthen their legal capacity and rule of law framework for
sustainable development and economic opportunity.
It is the only intergovernmental organization with an exclusive mandate
to promote the rule of law and has experience working in more than 170
countries around the world.
The International Development Law Organization has a holistic definition of the rule of law:
More than a matter of due process, the rule of law is an
enabler of justice and development. The three notions are
interdependent; when realized, they are mutually reinforcing. For IDLO,
as much as a question of laws and procedure, the rule of law is a
culture and daily practice. It is inseparable from equality, from access
to justice and education, from access to health and the protection of
the most vulnerable. It is crucial for the viability of communities and
nations, and for the environment that sustains them.
The International Network to Promote the Rule of Law (INPROL)
The International Network to Promote the Rule of Law (INPROL)
is a network of over 3,000 law practitioners from 120 countries and 300
organizations working on rule of law issues in post-conflict and
developing countries from a policy, practice and research perspective.
INPROL is based at the US Institute of Peace (USIP) in partnership with
the US Department of State Bureau of International Narcotics and Law
Enforcement, the Organization for Security and Cooperation in Europe
(OSCE) Strategic Police Matters Unit, the Center of Excellence for
Police Stability Unit, and William and Marry School of Law in the United
States.
Its affiliate organizations include the United Nations Office on Drugs
and Crime, Folke Bernadotte Academy, International Bar Association,
International Association of Chiefs of Police, International Association
of Women Police, International Corrections and Prisons Association,
International Association for Court Administration, International
Security Sector Advisory Team at the Geneva Centre for the Democratic
Control of Armed Forces, Worldwide Association of Women Forensic Experts
(WAWFE), and International Institute for Law and Human Rights.
INPROL provides an online forum for the exchange of information
about best practices. Members may post questions, and expect a response
from their fellow rule of law practitioners worldwide on their
experiences in addressing rule of law issues.
In relation to economics
One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development.
The rule-of-law movement cannot be fully successful in transitional and
developing countries without an answer to the question: does the rule
of law matter for economic development or not? Constitutional economics
is the study of the compatibility of economic and financial decisions
within existing constitutional law frameworks, and such a framework
includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.
The standards of constitutional economics can be used during annual budget process,
and if that budget planning is transparent then the rule of law may
benefit. The availability of an effective court system, to be used by
the civil society
in situations of unfair government spending and executive impoundment
of previously authorized appropriations, is a key element for the
success of the rule-of-law endeavor.
The Rule of Law is especially important as an influence on the
economic development in developing and transitional countries. To date,
the term "rule of law" has been used primarily in the English-speaking
countries, and it is not yet fully clarified even with regard to such
well-established democracies as, for instance, Sweden, Denmark, France,
Germany, or Japan. A common language between lawyers of common law and
civil law countries as well as between legal communities of developed
and developing countries is critically important for research of links
between the rule of law and real economy.
The "rule of law" primarily connotes "protection of property rights". The economist F. A. Hayek
analyzed how the rule of law might be beneficial to the free market.
Hayek proposed that under the rule of law, individuals would be able to
make wise investments and future plans with some confidence in a
successful return on investment when he stated: "under the Rule of Law
the government is prevented from stultifying individual efforts by ad hoc
action. Within the known rules of the game the individual is free to
pursue his personal ends and desires, certain that the powers of
government will not be used deliberately to frustrate his efforts."
Studies have shown that weak rule of law (for example,
discretionary regulatory enforcement) discourages investment. Economists
have found, for example, that a rise in discretionary regulatory
enforcement caused US firms to abandon international investments.
The rule of law can be hampered when there is a disconnect between legal and popular consensus. An example is intellectual property. Under the auspices of the World Intellectual Property Organization,
nominally strong copyright laws have been implemented throughout most
of the world; but because the attitude of much of the population does
not conform to these laws, a rebellion against ownership rights has
manifested in rampant piracy, including an increase in peer-to-peer file sharing. Similarly, in Russia, tax evasion
is common and a person who admits he does not pay taxes is not judged
or criticized by his colleagues and friends, because the tax system is
viewed as unreasonable. Bribery likewise has different normative implications across cultures.
Criticism
The
Rule of Law has been criticised by several scholars, authors,
philosophers and activists as unrealistic, hypocritical or dangerous.
Author Peter Gelderloos
argues that attempting to create a specialised class of judicial
authority that is separate from the community will inevitably lead to
corruption. He points out that nonviolent drug-related offences receive
far more police and media attention than workplace injuries or
pollution, which kill far more people each year. He argues that restorative justice is a far more effective and humane alternative to prisons, courts and the police.
Swiss Confederation
