13 July 2023
One of the dissemination events within the project research group “Supranational Interpretation of the Rule of Law” under the umbrella of the Central European Academy was held on Thursday, 13 July 2023, starting in the late afternoon at Pan European University, Faculty of Law. The lecture was given during the Ivan Krno Summer School of International Law, organised by the Slovak Society of International Law by the Slovak Academy of Sciences in cooperation with the Faculty of Law of Pan European University. The lecture was given in-person and video recorded at the same time.
Proceedings of the lecture were influenced by the fact that it was a part of the Summer School of International Law that is the flagship of the Slovak Society of International Law: it was a very intensive program both academically and socially, during which many academics and practitioners were presenting their topics of research and professional work in front of 28 active participants (although not all of them were students of law).
As for the lecture as a dissemination event within the project upon Supranational Interpretation of the Rule of Law, I named it UN System and the Rule of Law since my focus within the project is on this international organisation. At the beginning of the lecture, I introduced myself (also as a member of the Central European Professors’ Network), my research, and the outline of the lecture, namely that we would discuss the Rule of law, the UN system, Institutionalised Background, and Practical Consequences of the examined issue[FTG1] .
I started the Rule of Law part by talking about the origin of this concept in national legal frameworks that has actually influenced the names of this concept in various languages. I asked participants whether they knew how the Rule of Law concept is translated into the Slovak Language since it has a different meaning than if translated and taken literally. The Rule of Law is translated into Slovak the same way it is done so in German (Rechtssstat) or French (l´etat de droit), namely “právny štát”. It was very interesting to hear from the audience “vláda prava”, i.e., the Polish translation is more precise if compared to the term of the rule of law in English. To conclude this part, I pointed out that the concept originated in a State.
Nevertheless, although the rule of law originated in a State, it does not mean that it cannot be applicable in relations among States. It is true that the United Nations Organisation is an international organisation, however, the rule of law is not only applicable, it has to be applied. I referred to a lecture of prof. JUDr. Ján Klučka, CSc who talked about democracy in international law, so I pointed out that democracy is about who rules and the rule of law how to rule.
I wanted to get the participants involved so I asked them what they thought the rule of law was (which principles it includes). It was at that moment when I realised that for most of the participants this concept was probably too theoretical. Nevertheless, I got some answers which I summarised by showing a definition referred to especially within the UN:
According to that definition, for the United Nations, the rule of law refers to 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.
When I started doing the research on the rule of law focusing on the UN, I found it surprising that this issue had resonated at the UN level for quite some time: the definition that I provided was from the report of Secretary General Kofi Annan from 2004. Although being a political organisation, the rule of law principle has evolved to be considered within any decision taken by any UN body (comparably to the human rights issue).
Moreover, since it was not only about the report, I also introduced an institutional background at the UN to support respect for the rule of law at the UN, namely the Executive Office of the Secretary General organisationally within Under-Secretary for Policy Unit, focusing especially on technical assistance and capacity building. There are selected areas on which the interest is concentrating, such as the thematic areas: The Rule of Law and Justice, Rule of Law and Security, Human Rights, and Gender and Emerging Challenges (e.g., hate speech, climate change, etc.).
For the further discussion with the participants, I´ve chosen one of these thematic areas, namely rule of law and justice, particularly the issue of access to justice as a human right of every individual. Together with the students, we analysed what they considered to be a part of that right, what is the content of this right in practice, such as fair trial requirements, and enforcement of a decision.
This right was selected to get to the human rights systems under the UN umbrella, however, although I presumed that at least those students who were students of law had already studied international and regional human rights systems, I was mistaken, so I just explained the background of the system and listed regional judicial human rights bodies (European Court of Human Rights, InterAmerican Court of Human Rights, and African Court of Human Rights) and tried to explain main differences between them and the UN human rights committees that have been created by international treaties under the umbrella of the UN system (human rights committees focusing on different areas of human rights protection focus, 9 of them altogether, such as the Committee on the Elimination of All Forms of Discrimination against Women, so called CEDAW).
If compared, although both the courts and the committees have been established by an international treaty, the courts as judicial bodies adopt their decisions upon individual applications in the form of a judgment or committees, on the contrary, in the form of views/recommendations. The enforcement of judgments that are legally binding for the parties to the dispute is monitored by specified bodies, views, however, are not legally binding (according to academic writings and according to the wording treaties). Nevertheless, although if you have a State responsibility fact at stake (there is no dispute that the violation of international law accountable to a particular State took place, i.e., the obligation of a State to provide a remedy is involved), these treaties establishing individual committees, create no obligations of a State Party to enforce views nor recommendations of the committees from the legal point of view.
It was also pointed out that quasi-judicial bodies are not always composed of lawyers, since legal education was not an obligatory requirement to become a member of these committees.
However, one very important case was presented as an example that interpretation of the Convention on the Elimination of All Forms of Discrimination against Women was considered at a national level and that a supreme judicial body of one State Party to this Convention decided that the view of the CEDAW Committee was enforceable at the national level: it was a decision of the Spanish Supreme Tribunal. The case concerned the murder of a girl, Andrea, who was killed by her father during a parental visit (her mum left him when he threatened her with a knife). Her mother realised her access to justice and pointed out all the claims she had made to stop parental visits ordered by court, but the national courts found no violation of the obligations of Spain regarding the way on how the courts decided upon parental rights over care of the girl.
After an exhaustion of domestic remedies, Andrea´s mum approached the CEDAW Committee that decided in an opposite direction: according to it, Spain constituted a violation of her right not to be subjected to gender based discrimination. Moreover, it recommended that Spain pay Andrea´s mum, Ms. González Carreño, compensation, and to take measures to ensure that past acts of domestic violence are taken into consideration when determining custody and visitation rights regarding children.
Ms. González Carreño took the case to the Spanish courts again to enforce compliance with the Committee’s recommendation, and the case finally got to Spain’s supreme court. Although the Spanish Ministry of Foreign Affairs pointed out that the recommendations of human rights committees are not legally binding, on appeal, the Spanish Supreme Tribunal enforced compliance with the Committee’s recommendations, and recognised the violation of her rights by Spain, ordering the Government to pay 600,000 Euros as compensation for the moral damages she had suffered.
In reaching its decision, the Supreme Court acknowledged that the provisions of international treaties to which Spain is a party, form part of its law and that the recommendations of CEDAW are binding in nature. Therefore, the findings of the Committee have to be effectively respected and applied so that the rights provided for in international human rights treaties are „real and concrete” in Spain.
After the presentation of the case, I said that originally I planned to divide the group into two groups (since the schedule of the Summer School of International Law included some aspects of the JESSUP international law moot court competition) to present arguments of both parties to the discussion, namely, that the views of the committees are enforceable as decided by the Spanish Supreme Tribunal, or on the other hand, that they are not enforceable as usually considered by most State Parties to the UN international human rights treaties and most academics. However, after realising the composition of the audience (that not all the participants were law students) and the schedule shift, I decided not to create two groups but to summarise both groups of the arguments together with the participants.
To present the arguments why the UN international human rights treaties recommendations were enforceable, it was summarised that these committees were established by international treaties. By adopting these treaties, State Parties acknowledged the human rights of individuals within their jurisdiction and that giving the competence to decide upon individual complaints to these committees means that when the international responsibility of a State Party is established, a remedy is involved. Moreover, it was also pointed out that the relationship between international law and national law is very important since there might be different positions of State Parties towards their international obligations and their direct enforceability.
As for the arguments as to why the decisions were not enforceable, it was pointed out that neither CEDAW nor other committees of this type are a court since their establishment and composition are different if compared to a court, although both types of these bodies are established by international treaties. However, their aim is different. Moreover, procedural aspects of the fair trial issue were mentioned, such as no right of appeal involved in the proceedings in front of the committees, of which you may also become a member without legal education.
Finally, I mentioned that although it was the Spanish case that was a triggering moment of a hot discussion (not only in academia), some cases have also been present in Slovakia. When the video recording was finished, we discussed some aspects of these cases.
[FTG1]Pedig jó lett volna (de erre külön kitérni az összefoglalóban nem javasolt)!!
