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The UN Dispute Settlement Mechanism Reinforce the

Rule of Law

Submitted by:

DAISY KHARISMA QISTHI


10/304249/HK/18546

On
3rd January 2014

International Dispute Resolution


TAKE HOME EXAM:
ESSAY

The rule of law is better than that of any individual Aristotle

Introduction
UN is not a world government, but it is merely a political institution that has purposes to
maintain international peace and security, to develop friendly relations among nations, to achieve
international co-operation in solving problems of an economic, social, cultural or humanitarian
character and in promoting human rights, and to be a centre for harmonising the actions of states
in attaining these ends as set out under Article 1 of the Charter. The UN supports strengthening
the rule of law by financed and also training public official in national level as an act to establish
good governance system within states. Moreover, the dispute settlement mechanism in UN will
also help states enhancing the rule of law. This essay will elaborate why UN dispute settlement
mechanism is being part of enhancing the rule of law of states.
What is the rule of Law?
In literal meaning, rule of law is the basic form that no one is above the law.1 The concept
requires the government shall exercise its power according to written law and legal principles.
The rule of law avoids arbitrariness of the rulers. In the context of international law, UN as the
main international organization set out the concept of rule of law under its preamble: to
establish conditions under which justice and respect for the obligations arising from treaties and
other sources of international law can be maintained. A primary purpose of the Organization is
to maintain international peace and security and to bring about by peaceful means, and in
conformity with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace.
At the national level, the UN supports a rule of law framework that includes a
Constitution or its equivalent, as the highest law of the land; a clear and consistent legal
framework, and implementation thereof; strong institutions of justice, governance, security and
human rights that are well structured, financed, trained and equipped; transitional justice
processes and mechanisms; and a public and civil society that contributes to strengthening the

Rule of law definition, accessed from http://www.lexisnexis.co.uk/en-uk/about-us/rule-of-law.page

rule of law and holding public officials and institutions accountable. 2 The concept of rule of law
is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the
protection and vindication of rights and the prevention and punishment.
At the international level, the principle of the rule of law embedded in the Charter of the
United Nations encompasses elements relevant to the conduct of State to State relations. The
Declaration of Principles of International Law Concerning Friendly Relations and Cooperation
among States in Accordance with the Charter of the United Nations recognizes the inherent link
between the UN and the international rule of law. Its preamble emphasizes the paramount
importance of the Charter of the United Nations in the promotion of the rule of law among
nations.3
Further the UN Secretary-General defines the rule of law as 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."

Thus, rule of law is the basic of establishing good governance within states and it is one
of the most important concerned of UN. It relates to fulfill international human rights norms and
standards.
Why UN dispute settlement mechanisms reinforce the rule of law?
The dispute settlement under UN shall be through pacific dispute settlement and other
means if it is necessary due to maintain international peace and security affirmed under Chapter
VI, Article 33 of the UN Charter that:

What is the rule of law , accessed from http://www.unrol.org/article.aspx?article_id =3


ibid
4 Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies
2004, accessed from http://daccess-ods.un.org/TMP/8601340.0554657.html
3

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their
dispute by such means.
Other

articles

authorized

General

Assembly

and

Secretary

General to

make

recommendations or take certain action with respect to disputes, and encourage the development
of pacific settlement through regional arrangement. 5
the non-binding character of these procedures is plainly an advantage to a party whose
ultimate object is a negotiated settlement, a state which is prepared to relinquish such control can
reap the additional advantages of judicial settlement or arbitration. 6

The responsibility of States to end impunity has implications for the United Nations as
well. In the 2004 report on the rule of law and transitional justice in conflict and post-conflict
societies, the Secretary-General reaffirmed that United Nations-endorsed peace agreements can
never promise amnesties for genocide, war crimes, crimes against humanity or gross violations
of human rights.7 This policy reflects, among other considerations, a judgment that peace
agreements secured at the price of amnesty for atrocious crimes may not secure a lasting peace
and will not secure a just peace.

UN Charter, Article 10-14.


Merrils, 309
7 Report of the Secretary-General on the rule of law and transitional justice in conflict and post -conflict
societies (2003)S/2004/616
6

The reactivation of Chapter VII, which has been described, although only one aspect of the UNs
activity in relation to disputes, means that for the first time the use of economic and military
coercion has become a real option.8

Conclusion

Merrils, 276