Bufford Defining the Rule of Law

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The vast majority of countries have ethnically diverse populations and ethnic minorities of significant size. Indeed, some of the worst recent civil wars have arisen because of ethnic strife. The rule of law requires the protection of ethnic minorities and the recognition of their rights to their ethnic identities. 43 It condemns any form of discrimination against a person because of his or her ethnic identity. 44 Indeed, it may be necessary to provide special advantages to members of an ethnic minority to redress past discrimination and to guarantee equality of treatment and opportunity. In addition, any substantial ethnic minority must have a realistic opportunity to participate in a country’s government. 45 III. Procedural Requirements for the Rule of Law The rule of law also has extremely important procedural dimensions, in addition to the foregoing substantive dimensions. It requires a set of rules that is known in advance, rules that are actually and fairly enforced, mechanisms to ensure proper application of the rules (but permit controlled departure from the rules where necessary), an independent judicial system to make binding decisions when conflicts in the application of the rules arise, and procedures for amending and revising the rules. 46 A. Fairness and Due Process 43 See Civil and Political Rights, supra note 11, art. 27; Arab Charter, supra note 14, art. 37; Asian Charter, supra note 16, art. 6.1, 8.1 (??); Fundamental Freedoms, supra note 12, art. 14; see generally Fundamental Rights of the EU, supra note 12, art. 22; see generally International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), Annex, U.N. Doc. A/6014 (Dec. 21, 1965) [hereinafter Discrimination]. 44 Discrimination, supra note 45, art. 2(1)(e); Fundamental Rights of the EU, supra note 12, art. 21; Twelfth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 1, Apr. 11, 2000, E.T.S. 177. 45 American Convention, supra note 15, art. 23; Arab Charter, supra note 14, art. 19, 33; African Charter, supra note 15, art. 13; American Declaration, supra note 14, art. 20. 46 See, e.g., Ibraham Shihata, THE WORLD BANK IN A CHANGING WORLD 85 (Franziska Tschofen & Antoino R. Parra eds., 1991). 10
To protect the substantive requirements of the rule of law, certain procedural requirements must be established, including the right to an effective remedy by competent domestic tribunals for acts violating a society’s fundamental freedoms. 47 The rule of law demands fairness in both the criminal and civil law context. 1. Fairness in Criminal Procedures The rule of law plays a critical role in ensuring the fair treatment of prisoners and those accused of crimes. For example, members of the public, whether accused of a crime or not, must be protected from unreasonable searches and seizures. A government will quickly lose the respect of the public if it subjects persons to unreasonable searches of homes or the unreasonable seizure of personal property. a. Rights of the Accused The rule of law also imposes special requirements regarding how those accused of crimes may be treated. For instance, it requires that no one shall be subjected to arbitrary arrest, detention or exile; 48 that anyone charged with a crime has a right to a fair and public hearing by an impartial tribunal; 49 that a person is presumed innocent until proven guilty, 50 and that a person has a full and fair opportunity to present a defense to criminal charges. 51 47 See Universal Declaration, supra note 9, art. 8; Fundamental Rights of the EU, supra note 12, art. 47; American Declaration, supra note 14, art. 26. 48 See Universal Declaration, supra note 9, art 9; Civil and Political Rights, supra note 11, art. 9; American Convention, supra note 15, art. 7(3); African Charter, supra note 15, art. 6; Asian Charter, supra note 16, art. 3.6, 14.3 (??); American Declaration, supra note 14, art. 25. 49 See Universal Declaration, supra note 9, art. 10; Civil and Political Rights, supra note 11, art. 2(3)(b), 14(1); Fundamental Rights of the EU, supra note 12, art. 47; American Convention, supra note 15, art. 1, 7(4); Asian Charter, supra note 16, art. 3.7 (??); American Declaration, supra note 14, art. 18. 50 See Universal Declaration, supra note 9, art. 11(1); First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Aug. 30, 1955, United Nations Standard Minimum Rules for the Treatment of Prisoners, art. 84(2), U.N. Doc A/CONF/611, annex I [hereinafter Treatment of Prisoners]; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 43/173, principle 37, (Dec. 9, 1998) 11
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Bufford Defining the Rule of Law

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