The United Nations (UN) is one of the largest international intergovernmental organizations in the world. It was founded in 1945, and it is currently made up of 193 member states. Its founding document is the UN Charter, which is considered a treaty under the US Constitution. The central role of the UN in global governance—especially in promoting “the rule of law at the national and international levels” and in ensuring equal access to justice for all—was recognized by Goal 16 of the “Sustainable Development Goals” in 2015.
The UN Secretary-General has defined 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.” The rule of law requires measures to adhere to certain principles, such as supremacy of law, equality before the law, and accountability to the law. (S/2004/616).
Two of the six major organs of the UN are the International Court of Justice (ICJ) and the Security Council. The ICJ is the principal judicial organ of the UN. The Security Council is mandated to promote the establishment and maintenance of international peace and security. It has primarily done so by the establishment of various peacekeeping missions throughout the world and by making the rule of law a central element of their mandates. The ICJ and the Security Council play a significant role in promoting the international rule of law.
The ICJ is located in The Hague, The Netherlands. It functions in accordance with a statute, annexed to the UN Charter. It is comprised of fifteen independent judges, each of a different nationality, serving nine-year terms, reflecting the main forms of civilization and the principal legal systems of the world.
The ICJ performs two tasks. First, it decides disputes between states on the basis of international law. These are known as contentious cases. Only states, members of the UN are entitled to apply and to appear before the ICJ in contentious proceedings. The ICJ can entertain a dispute only if the states concerned have accepted its jurisdiction (special agreement, compromissory clause, reciprocal compulsory jurisdiction declarations, forum prorogatum). Its judgments are final and cannot be appealed. Second, the ICJ gives advisory opinions on any legal question referred to it by duly authorized organs and specialized agencies of the UN.
The ICJ upholds and promotes the rule of law at the international level. When deciding legal disputes, it does so on the basis of public international law, including international conventions, international custom, and general principles of law, while using judicial decisions and the work of highly qualified publicists as subsidiary means of interpretation. The international rules that the ICJ applies range from diplomatic protection and sovereign immunity to human rights and international environmental law. When applying international law, the court has the power to decide a case ex aequoet bono (i.e., on the basis of equity and fairness, two of the substantive characteristics of the rule of law).
One of the core principles of the rule of law that the ICJ has advanced is that of legal certainty. It has done so in at least two ways. First, it has developed a jurisprudence constante on the principles of interpretation it adopts, on the basis of the Vienna Convention on the Law of Treaties 1969. When states submit their disputes to the ICJ, they can predict with certainty that the treaties on which they rely will be interpreted in good faith, according to the ordinary meaning of its terms, in their context and in light of the treaty’s object and purpose. Second, Articles 59–60 of the ICJ Statute provide that judgments are final and binding on the parties (i.e., they have the force of res judicata). This is based upon two principles: 1) the stability of legal relation requires that litigation come to an end and; 2) it is in the interest of each party that an issue which has already been adjudicated be not argued again.
The Security Council consists of fifteen member states of the UN. Among the Council membership, five states (United States, United Kingdom, France, Russia, and China) are permanent members, while ten other states each serve a two-year term. The Security Council has contributed to the promotion of the international rule of law by establishing ad-hoc international tribunals and mandatory sanctions regimes, aiming to ensure accountability, ending impunity and advancing compliance of international law.
In response to the serious international crimes that have taken place worldwide, the UN, mainly through the Security Council, created several International Criminal Tribunals (ICTY, ICTR, MICT, STL, SCSL, and ECCC). These international ad-hoc tribunals aim to prosecute those most responsible for genocide, crimes against humanity, and other serious violations of international criminal law and to bring justice to thousands of victims and their families.
In addition, the Security Council has referred situations to the International Criminal Court. It referred two situations to the ICC: Sudan (2005) and Libya (2011). The ICC, however, is not part of the UN system, but rather, was established by the Rome Statute of the ICC 1998.
Apart from the establishment of international ad-hoc tribunals, sanctions regimes have been put in place by the Security Council on the international enforcement front. These aim to apply pressure on a state or a state-like group to comply with the objectives set up by international law and the Security Council. The Security Council has established twenty-six sanctions regimes since 1966. These range from comprehensive economic and trade sanctions to more targeted measures, such as travel bans, arm embargoes, financial and diplomatic restrictions, and bans on specialized teaching or training. For example, on March 2, 2016, the Security Council unanimously adopted a resolution imposing additional legally binding sanctions on North Korea in response to North Korea’s continuing violations of international law and Security Council resolutions.
In conclusion, the contribution of the Security Council to the international rule of law is that it establishes various international criminal tribunals and imposes sanctions regimes, most notably by legally binding and enforceable resolutions. ICJ judgments, which apply rules of international law in an equal, fair, and predictable manner, may also be enforced by the Security Council. Both of these organs of the UN have made a positive contribution to the international rule of law by building effective, accountable, and inclusive institutions and by peacefully setting disputes, respectively.