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accountability; and non-discrimination against minorities, vulnerable groups and women. A 2012 resolution in the General Assembly8 has, in Abbott’s opinion, given the international community’s stamp of approval to the rule of law embodying many of these different ideas and concepts. This means, he says, that the rule of law is not just a case of whoever has power, has the law and can wield it. It is much more nuanced than that. He cites a recent example from 2017 when the Cambodian Supreme Court dissolved the main opposition party. In a massive conflict of interest, one of the judges sitting on that court was a member of the ruling party’s standing committee. “This was an example where the judiciary lacked independence and impartiality. So, that decision - notwithstanding that it was made by the Supreme Court - was inconsistent with the rule of law because it violated the norm of the independence and impartiality of the judiciary.” Abbott says that in a lot of places around the world, authoritarian regimes are adopting the language of human rights law, the rule of law and development concepts. “They will say that nothing that happens in their country is inconsistent with the rule of law, because (for example) when they arrested a journalist – such as in Myanmar where journalists have been arrested for documenting the alleged genocide of the Rohingya – or when they dissolved the main opposition party in Cambodia, they are merely applying the law, and nobody is above the national law and they are therefore a country that accepts the rule of law.” The ICJ describes this as the difference between rule of law and rule by law. Rule by law means the idea that everybody in the country is ruled by a law that is often wielded as a tool of oppression, whereas the rule of law is all about respecting the international human rights legal framework and all those norms encapsulated in it. Using Cambodia as an example, Abbott points out that it has ratified a lot of the key conventions such as the International Covenant on Civil and Political Rights9, the International Covenant on Economic, Social and Cultural Rights10 and the Convention against Torture.11 But Abbott believes that the rule of law and whether Cambodia is complying with it or not

is actually the extent to which it is protecting and promoting the rights contained in those conventions. “If you arrested a journalist for merely criticising the government, that is a violation of that journalist’s right to free expression and media freedom. Is it consistent with national laws? Technically it might be. Is it a violation of the rule of law? Well yes, it clearly is.” In Abbott’s view, the rule of law is now under attack in many places around the world. The ICJ held a Global Congress in Tunis in late March 2019 to look at this issue and to essentially reaffirm the ICJ’s commitment to the rule of law. “It is a very hot issue right now,” he says. “The… attacks are coming from many quarters and I think it’s wrapped up in a lot of the trends we are seeing around the world, which are well-known now but weren't so obvious four or five years ago. These are the rise of popularism and the attraction of popularist leaders who claim they are standing with the people against corrupt government institutions that aren’t serving their interests, the rise of nationalism, the challenges of different refugee and migrant crises - and the idea that some people have that the international human rights legal framework is failing and is not well-equipped to deal with these issues.” Abbott says this is accompanied by a trend of clamping down of freedom of expression, and the rights to assembly and association and the ability of civil society to function freely. He points to suggestions that these rights in some way are not improving the situation in countries and a consequent silencing of dissenting voices. Abbott acknowledges the complexity of the challenges facing many countries but is adamant that the answers being offered up, such as higher walls and the undermining of the judiciary and other independent justice actors, such as civil society and human rights institutions, are not the solution: “The solution has to be grounded in a human rights/rule of law approach,” he says. “A non-discriminatory approach that respects the rights of refugees and promotes and protects the independence and impartiality of the judiciary, among other measures.” Abbott believes that an important step is to reaffirm the importance of the rule of law. “I think there needs to be inserted into the dialogue around issues such as refugees a more

Resolution 67/1. Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels ruleoflaw/files/A-RES-67-1.pdf (accessed 28 March 2019). International Covenant on Civil and Political Rights: Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 23 March 1976, in accordance with Article 49 (accessed 29 March 2019). 10 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976, in accordance with article 27 (accessed 27 March 2019). 11 Above at n2 8 9


Profile for New Zealand Bar Association

At the Bar April 2019