INTRODUCTION

When one of their members fails to fulfil its obligations, international organizations (IOs) may adopt institutional sanctions in order to put pressure on it and bring it back into the ranks. Typically, institutional sanctions are provided for in the constitutive instruments of IOs and consist in depriving the member of its rights, privileges and benefits stemming from membership.

The majority of constitutive instruments envision sanctions in the event of non-fulfilment of financial obligations. At times, privative measures can be adopted for other defaults, say for breach of the fundamental principles and values of the IO or any other obligations set out in the constitutive instruments.

In disciplining the errant member, an IO may resort to a broad spectrum of measures varying from the most serious to the least serious. At one end of the scale, one finds the expulsion of the member or the request to withdraw (compulsory withdrawal), as stipulated, for example, in Art. 6 of the UN Charter and Art. XXVI(c) of the Articles of Agreement of the International Monetary Fund (IMF), respectively. Less severe than expulsion, the temporary suspension of all privileges and rights of the member is a distinctive measure laid down in a number of statutory provisions, for instance under Art. 31 of the World Meteorological Organization Constitution.

INTRODUCTION

The institutional measures that regional organizations apply against their member States are often excluded by the current legal debate on sanctions, on the assumption of their lawfulness insofar as they are governed by their own constituent instruments. However, the imposition of sanctions has become a crucial component of regional governance: while the first decade after the end of the Cold War was characterized by the economic measures adopted by organizations such as the Economic Community of West African States (ECOWAS) and the Organization of American States (OAS) – the latter subsequently less active in this field – in recent years it has been the African Union (AU) that has played a very active role, imposing both the suspension of various countries from membership and targeted sanctions as a reaction to unconstitutional changes of government. Even the Arab League, a regional organization that has traditionally been suspicious vis-à-vis sanctions, has used this tool in relation to Syria and Libya. Yet other regional organizations have continued to remain reluctant with respect to measures that represent, in their view, an unlawful interference with the internal affairs of States: this is the case with the Association of Southeast Asian Nations (ASEAN), whose members refused to include a sanction mechanism in their 1998 Charter.

This contribution suggests the adoption of a comparative perspective with the purpose of charting the great variety of practice and offering an analytical tool for assessing similarities and differences in the conduct of regional organizations.

INTRODUCTION

When defining sanctions, scholarship commonly makes the distinction between two categories. The first contains ‘multilateral’ or ‘centralized’ sanctions adopted by an international organization (IO) on the basis of its constitutive act against member States or non-State actors. Such sanctions may involve a member State's suspension from participation or even its expulsion, a ‘social sanction’ in response to wrongdoing. In some cases, IOs adopt more far-reaching measures, such as the suspension of trade or the interruption of financial transactions. A well-known example is the sanctions regime of the United Nations Security Council (UNSC) against Iran, which was in place until 2015. Importantly, States consent to these measures when they ratify the organization's constitutive act and become members. The UNSC has the authority to adopt sanctions under Art. 41 UN Charter. The second category consists of ‘unilateral’ or ‘decentralized’ sanctions adopted by States unilaterally per their national legislation or executive powers or by IOs against non-member States. The typical example would be US sanctions and European Union restrictive measures against countries such as Russia, Iran, Venezuela, etc. Real life, however, is not always so neatly organized.

There are instances where a regional organization, which is a ‘non-universal grouping that [is] essentially self-defining in terms of memberships as well as of object and purposes’, has suspended a member without having the explicit power to do so. While such measures are adopted by a regional organization against a member State, they are not based on the former's constitutive act. Often-cited examples in the literature are the League of Arab States (LAS) sanctions against Libya and Syria for human rights abuses and violations of international humanitarian law when these two States cracked down on popular unrest during the Arab Spring in 2011.

INTRODUCTION

La question de l’État de droit occupe la Suisse depuis des décennies. Elle a en particulier été nourrie par les tensions qui entourent la « coordination » du principe démocratique, la Suisse étant une démocratie semi-directe, et de la protection des droits et libertés individuels. Le renforcement du droit, notamment en matière de protection des droits subjectifs, sur le plan international a, de plus, conduit à de nouvelles réflexions en la matière.

Dans le contexte du présent rapport, nous nous intéresserons tour à tour, et plus largement, à l’encadrement formel du principe de l’État de droit (2.), au contenu matériel dudit principe (3.), aux interactions entre État de droit et répartition des pouvoirs (4.), ainsi qu’à l’influence des standards internationaux en la matière (5.). Ce rapport réfléchira, dans un dernier temps, à la problématique de l’État de droit sous pression (6.), de même qu’aux perspectives d’avenir qui s’offrent à lui (7.).

ENCADREMENT FORMEL DE L’ÉTAT DE DROIT DANS L’ORDRE CONSTITUTIONNEL

LA CENTRALITÉ DE L’ART. 5 CST.

La Constitution suisse (Cst.) du 18 avril 19991 offre une place de premier rang au principe de l’État de droit. Elle précise ainsi, dès son art. 5, que « [l]e droit est la base et la limite de l’activité de l’État ».

PARAMETERS FOR DISCUSSION: THE RULE OF LAW

In setting out a reference point to ground the discussion of rule of law in China, it is useful first to be explicit about the idea of rule of law in mind. The rapporteur is influenced by Martin Krygier's teleological approach which asks one to start with a question of what rule of law is intended to achieve. For him, tempering power (rather than simply restricting power) and ‘helping to ensure that it is routinely unavailable for arbitrary exercise’ is the key aim of rule of law. Krygier proposes that one should not start with a checklist of attributes of rule of law, be it substantive or procedural versions of rule of law as exemplified by the attributes prescribed by Fuller for the inner morality of law, though as he says ‘we might come to such things’.

This report, while bearing in mind the overall aims of rule of law as tempering power, will come to a consideration of the ways the Chinese version of rule of law engages with the principles of legality articulated by Lon Fuller. This will enable a more fine-grained evaluation of the changing concept of rule of law in China and the way the legal system functions. This analysis is done with reference to Fuller's prescription that law must be general in that it refers to classes of people and circumstances and not individuals, public, clear, non-contradictory, possible to obey, relatively constant, prospective, congruent between official action and the declared rule.

INTRODUCTION: THE NECESSITY TO DEFINE THE TERMS OF PARAMETER

The terminology ‘rule of law’ in the world's legal systems, regardless of the title of this section, connotes multiple meanings. Recalling Bagehot's definition of ‘Nation’, similarly, rule of law is a clear concept to everyone, but despite European obligations, it is almost impossible to translate into an intelligible written definition: it changes and mutates over time, acquiring diverse and varying meanings. Thus, given the rule of law's historical relative value, this report will try to depict its evolution in the Italian legal system, beginning from the years after the approval of the Constitution; then, it will compare it with what it represents today.

Following this, the report will mainly focus on those contributions appearing at least ten years after the end of World War II. Indeed, according to the prominent philosopher Norberto Bobbio, the Italian legal literature that appeared immediately after the end of the war was too introspective, often unable to identify the very reasons for the crisis of law in that historical moment. Italian scholars were formerly confused between the crisis ‘of the Rechtsstaat’ or ‘of the principle of legality and of certainty’, or ‘of legal science’ or finally ‘of the sense of justice’. However, already in the 1950s, Giuseppino Treves, in an interesting essay published within the Annales of the Law Faculty of Istanbul, illustrated the rule of law's status in Italy, proposing a twofold inquiry. First, he said, it was necessary to clarify what jurists consider to be rule of law and only secondly would it have been possible to establish how far rule of law finds application in the country's legislation.

INTRODUCTION

In August 2021, the Taliban swept into the capital city of Kabul and toppled the Western-backed government of Ashraf Ghani. To those uninformed of developments in Afghanistan, these events would have come as an enormous surprise. Nevertheless, they were years in the making. The only question was how the realignment of power in Afghanistan would occur. Several commentators were optimistic that it would happen more organically and peacefully.

To understand the present, there is a need to examine the past. The Taliban is a fundamentalist Islamist group formed by the Afghan mujahideen in the early 1990s. After decades of different wars, the Taliban established a hard-line government in Afghanistan in 1996. Despite its harsh practices, the Taliban Government had adequate local support in its initial years. This was because Afghans saw some semblance of stability at last. However, in 2001, the Taliban Government was overthrown post the American invasion of Afghanistan. To fill the power vacuum in Afghanistan, the United States and other Western forces quickly helped establish a new government headed by an ally of the West, Hamid Karzai. Despite widespread optimism, this did not bring an end to the problems in Afghanistan.

The new government that was established with the help of the West was arguably always bound to fail. While the precise reasons for this are beyond the scope of this report, it is essential to note that the system established with the help of Western powers was a highly centralised one in a country where the central government barely had control of 30% of the entire territory. Afghanistan was (and is) a country with deep ethnic cleavages and is run primarily by warlords who rely on the illegal opium trade for their finances.11

FORMAL FRAMEWORK OF THE RULE OF LAW IN THE CONSTITUTIONAL ORDER

The rule of law is a complex phenomenon combining different legal, political, moral, ethical and democratic principles. In other words, it cannot be sensibly detached from the wider normative context of a community's history, politics, morality, ethics and culture. There needs to be a shared commitment from the side of the government and appropriate governance is necessary to uphold the dictate of the law. It is difficult to ascribe a precise meaning to the term of the rule of law as it is an interpretative concept without a clear plain meaning. Despite this, the rule of law is the guiding principle of legitimate governance and, as a ground of liberal constitutionalism, integrates the theory of constitutional government.

Hence also the rule of law constitutes one of the basic and central constructs of the constitutional order. The provision of the rule of law along with the concept of the democratic and socially fair state creates one of the pillars of the constitutional polity of the Republic of Poland expressed directly in Chapter I of the Constitution (1997), consistently with its Article 2: ‘The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice’. The rank and significance of the principle expressed in that regulation can be demonstrated not only by the fact of occurrences of attributing the chief role to the meaning of this principle within the doctrine and jurisprudence of the courts, but also the particular mode for introducing amendments to it, enshrined in the Constitution.

INTRODUCTION

From an institutional perspective, Romania is a young country. The (modern) state emerged at the middle of the 19th century and it struggled through the stormy 20th, an essential background for understanding the current debates on the rule of law.

The legal basis of modern Romania was laid down by a group of revolutionaries involved in the events that shaped Europe in 1848.1 Most of them belonged to wealthy families and they all studied abroad, particularly in Paris. When they returned to Romania, their immediate goal was to erase the existing political system and replace it with the French one, which they did by enacting legislation based on the Napoleonic Codes. However, the constitutional framework was not ready for a republican construct, and they turned to the (then modern) Belgian Constitution. This drastic legal transplant was difficult to assimilate, and it took at least half a century before the new design became functional, so the politicians considered it their duty to lead the process, while law became a mere instrument to achieve their goals.

The second half of the 20th century saw the rise of communism, where the Marxist blueprint already defined law as a simple ‘superstructure’ meant to guide the people towards the single beacon of following the state.

THE RULE OF LAW: FORMAL FRAMEWORK AND DEFINITION

In South Africa, the Constitution is the supreme law of the country. Section 1 of the Constitution provides for the values of the Constitution. It is to the effect that:

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

It is evident that the rule of law is one of the founding values of the Constitution. The inclusion of the rule of law as one of the values in the Constitution means that ‘the rule of law is entrenched as part of our Constitution’. It other words, the rule of law ‘is embedded in our Constitution by section 1(c), as the nerve-centre of our constitutional democracy’. Likewise, the ‘rule of law’ is referred to in many pieces of legislation. However, neither the Constitution nor any pieces of legislation define or describe the ‘rule of law’. The concept of ‘rule of law’ can be interpreted broadly or narrowly and ‘[i]ts content has been expanded in a long line of cases’.

INTRODUCTION

Currently, Egyptians live under the cruel, tyrannical grip of President ‘Abdel Fattah al-Sisi's Government. In 2020, the World Justice Project (WJP) ranked Egypt 125th among 128 nations in their Rule of Law Index. Egypt's disturbingly low ranking is possibly a result of al-Sisi's attempts to progressively establish tyranny in Egypt's legislation, steadily eroding the rule of law. In 2019, the Egyptian Constitution was amended and, inter alia, allows the President to appoint district attorneys and justices who are not qualified and with no integrity or transparency in his selection, just to serve the regime. Hence, the Government has been oppressing and persecuting political opponents by breaching fundamental human rights, stifling political dissent, weakening judicial independence, and passing statute(s) that authorise(s) arbitrary charges and the denial of fair trial (due process) guarantees.

During the Covid-19 pandemic, President al-Sisi extended the emergency status, engendering (sentencing in) mass trials and illegitimately delayed pretrial detentions, denying civilians fair trial assurances and exposing inmates to prison conditions marred by overcrowding and an increased risk of Covid-19. Considering Egypt's legal and political reality, this report eventually finds that expressively challenging the regime and supporting democratic reform entails the international community sanctioning high-ranking officials and making their military and economic assistance more conditional (on hold) on the administration's conduct. There could be severe ramifications if Egypt does not upgrade the current legal, judicial, human rights status. In the long run, this situation could become part of a greater movement of a gradually politicised judiciary and a prevalent decline of human rights.

INTRODUCTION

Australia is governed by a written, entrenched constitution, which makes no mention of the rule of law. Yet the rule of law is said to be one of its most fundamental ‘assumptions’. The Australian Constitution places clear constraints on both legislative and executive power, which are rigorously enforced by an independent judiciary, though these limits are relatively ‘thin’. There is no constitutional bill of rights, nor any overarching constitutional requirement that government act in a way that is reasonable or proportionate. As then-Chief Justice Gleeson observed:

This distinction between legal and political limits on government power is one key to understanding the way the rule of law is conceptualised in Australian constitutional law. The latter has come to shape the former, as the High Court has derived implied constitutional rights to political equality, to vote in federal elections and to engage in political communication from the system of representative and responsible government that the Constitution provides. But the other key is to recognise that a great amount of work is done by non- (or perhaps, small ‘c’) constitutional norms and principles. Many principles and values associated with the various competing conceptions of the rule of law are protected by the principles of statutory interpretation developed by the courts. Yet it remains largely open to Parliament to confer broad executive powers and erode individual liberties, if it so chooses.

INTRODUCTION

The rule of law, in Brazil, is a challenge to the legal construction of equality. The words of Benvindo are the ones that best describe the main past, current and future challenges for the rule of law in Brazil. This report aims to present the basic structure of the rule of law in this country, having, as the main normative source, the 1988 Constitution. Here, it will be argued that a scientifically rigorous approach to the rule of law must not only consider normative, dogmatic and philosophical accounts of that political and juridical concept but also adopt an empirical assessment of sociological factors that affect the way that law is enforced by institutions and genuinely shared by the citizens of a specific jurisdiction. This is the caveat that shall be made by anyone who aims at understanding the rule of law in Brazil.

The structure of this report is as follows. Section 2 is dedicated to the constitutional delimitation of the rule of law: its terminological definitions, the constitutional norms that provide for it, statutory provisions related to the rule of law, and its relationship with the principle of legality. Section 3 delves into what could be the normative substance of the rule of law: fundamental rights and the rule of law and, especially, how proportionality has influenced the way courts rule upon matters connected to it. Sections 4 and 5 present, albeit briefly, how constitutional scholars in Brazil have treated the rule of law and how they relate it to democratic procedures.