Legal Committee Is Told Adherence to ‘Rule of Law’ Critical to Goals of Peace Promotion, Poverty Reduction, Development, Anti-terrorism
Legal Committee Is Told Adherence to ‘Rule of Law’ Critical to Goals of Peace Promotion, Poverty Reduction, Development, Anti-terrorism
|Department of Public Information • News and Media Division • New York|
Sixty-fifth General Assembly
8th & 9th Meetings (AM & PM)
Legal Committee Is Told Adherence to ‘Rule of Law’ Critical to Goals
of Peace Promotion, Poverty Reduction, Development, Anti-terrorism
Delegates Debate Need to Harmonize International, Domestic Legislation
Stating that the rule of law was linked to sovereignty and control over the use of force and resources, as well as similarly sensitive matters, the United Nations Deputy Secretary-General and the Chairperson of the Rule of Law Resource and Coordination Group, Asha-Rose Migiro, told the Sixth Committee (Legal) at a briefing today that a 2011 high-level event for a review of activities in the area of the rule of law would be welcome.
The complex concept of the rule of law was embedded in the history of all cultures and nations, she continued. It was linked to critical goals such as poverty reduction and sustainable development, as well as to the promotion of peace, accountability and combating crime and terrorism. The rule of law was integrally tied to global governance, the theme of the Assembly’s presidency during the current session. Implementation, however, remained a challenge.
Among other matters, she said there was a need to better address issues related to traditional and informal justice systems. Also, the United Nations had enhanced its “capacities” in the past year. There had been the establishment of the Standing Justice and Correction Capacity, alongside the Police Capacity in Peacekeeping; the launching of global programmes by the Development Fund; and the deployment of mediation teams by the Department of Political Affairs.
However, more efforts were needed to better recruit, train and retain high-quality personnel in the rule of law area, she added. Fragmentation in the external environment of donors and assistance providers needed to be addressed. Recipients needed to be integrated into policy discussions. There should also be more consistent needs and threat assessments, security-sector reform, better monitoring, and an address of the political and institutional aspects of rule of law development.
After the briefing, the Legal Committee Chairperson, Isabelle Picco of Monaco, recalled that the debate would centre on State practice in implementing international law. Issues to be addressed included the interpretation of international law into national legislation; technical assistance and capacity building; evaluating effectiveness of assistance; donor coherence; and perspectives of recipient States.
Delegations stressed the important role of regional mechanisms in implementing the rule of law and translating international norms into national legislation.
Speaking for the Association of Southeast Asian Nations (ASEAN), Indonesia’s representative said the ASEAN Charter had established a legal and institutional framework that would transform the region into a “rules-based, people-centred and closely integrated community” by 2015. Towards that end, States had committed to implementing obligations under international treaties and ensuring enforcement within the Association.
Venezuela’s representative said the instruments of regional cooperation and integration were of great value in strengthening the rule of law. For example, a summit of leaders of the Union of South American Nations had affirmed the commitment to that path on 1 October. The upcoming summit on 26 November in Guyana would add a protocol to the Union’s “Constitutive Treaty” that would establish the Democratic Clause, a decision taken in response to the failed coup in Ecuador.
Treaties were one of the principle sources of international law, said the representative of El Salvador. In her country, treaties became laws once they entered into force and they prevailed in a conflict. Their binding nature derived from the fact that they were a product of voluntary agreements between parties. Also, a legal regime was not the same as the rule of law, which was “not the law that existed, but the one that should exist”.
A number of delegates, including that of Syria, called for respect for the rule of law within the United Nations. He said achievement of the rule of law at the international level was elusive. Double standards prevailed because international norms were not implemented and safeguards were absent. States should be assisted at their request and cultural differences, along with human rights, must be respected.
Turkey’s representative, among others, noted the importance of the United Nations and its rule of law mechanisms for helping States implement international treaties, which was at the heart of establishing the rule of law. He said respect for the rule of law was inevitably linked to the protection of human rights and fundamental freedoms, which was a fundamental responsibility of every State. Further, strengthening the rule of law at the international level was a way to address global challenges such as climate change, terrorism, and illicit trade in arms and narcotics.
Also at today’s meeting, delegations expressed disappointment at the late availability of the Secretary-General’s report on the important matter of rule of law. Speaking for the Non-Aligned Movement, Iran’s delegate said small missions in particular had not been able to give the contents adequate consideration. It was decided to keep the item open, so as to give delegations a chance to speak on the item later.
Also speaking today were the representatives of Belgium for the European Union; New Zealand (speaking also for Australia and Canada); Ghana for the African Group; and Chile for the Rio Group of countries.
Speaking in their national capacity this morning were the representatives of Liechtenstein, Guatemala, Belarus, Honduras, Zambia, Russian Federation, Lebanon, Mexico, Libya, Kazakhstan, Morocco and Norway.
After the midday break, speakers included the representatives of the United States, Mozambique, Republic of Korea, Senegal, Ghana, Monaco, China, Egypt, South Africa, Argentina, Democratic Republic of Congo, Sri Lanka, Cuba, Kuwait, Afghanistan, Myanmar, United Republic of Tanzania, Costa Rica, Japan, Switzerland, United Kingdom and Serbia.
The representatives of Israel and Kuwait spoke in exercise of their right of reply.
The Committee will meet again at 10:00 a.m. tomorrow, Wednesday, 13 October, when the exchange on the rule of law will continue, and the item on universal jurisdiction is expected to be taken up.
The Sixth Committee (Legal) met today to take up two agenda items, one on the rule of law at the national and international levels and the other on the scope and application of the principle of universal jurisdiction.
For its consideration, the Committee had before it the Secretary-General’s second annual report on strengthening and coordinating United Nations rule of law activities (document A/65/318). Covered in the report are activities of the new system-wide arrangement consisting of the Rule of Law Coordination and Resource Group supported by the Rule of Law Unit within the Secretary-General’s Executive Office and a system of “lead” entities for rule of law subsectors.
The report states that it provides insight into emerging mechanisms and practices that promote effective implementation of international law by States. Both judicial and non-judicial mechanisms ensuring accountability were important tools in the international community’s response to impunity during the year ending 20 August last. Key achievements, as well as critical gaps and challenges, are highlighted, as progress was being made towards a more comprehensive and joint approach among United Nations entities to support rule of law activities in line with national priorities and plans. Also presented is the status of implementation of previous recommendations along with recommendations on new ways and means to strengthen and coordinate efforts.
The introduction states that a big challenge in promoting the rule of law at the national and international levels was to narrow the gap between international norms and standards and their effective implementation at the national level.
Assistance focused on steps taken to enhance approaches to complex issues such as land tenure, transitional justice, transnational organized crime and corruption, sexual justice and informal justice systems. Improvements have been made in areas such as system-wide strategic coordination, streamlining of policy and guidance, support of coherent actions in countries and expansion of partnerships. Adherence to the rule of law by the United Nations itself in its operations and practices was also being enhanced.
According to the report, the fostering of the rule of law at the international level focused on codification and implementation of an international framework of norms and standards; international and hybrid judicial bodies and non-judicial dispute resolution mechanisms; and non-judicial accountability mechanisms. The United Nations approach to the rule of law at the national level focuses on the framework for strengthening the rule of law and addressing critical challenges. Overall coordination and coherence focused on providing guidance and implementing the joint strategic plan; system-wide outreach; measuring effectiveness and evaluating impact; expanding partnerships; and strengthening the rule of law in the Organization.
In recommendations for cultivating a just, secure and peaceful world governed by the rule of law, the report states that the process of strengthening the coordination, coherence and quality of work in the rule of law area was a long-term endeavour. For the critical interface between international and national rule of law, the United Nations must focus on finding better ways to support States and their populations in the domestic implementation of international norms and standards. Other areas of focus involve the achievement of compliance with international obligations and, most critically, strengthening the institutions, policies, processes and conditions that ensured effective enforcement and enjoyment of a just national and international order.
The key to improving outcomes, the report concludes, is to strengthen the coordination and coherence of the many stakeholders involved across the rule of law field, whether from the perspective of international criminal justice and positive complementarities; the programming of justice and security into peacebuilding; or the provision of technical assistance for implementation. An incremental approach may be needed but the ultimate goal was to establish and commit to a system whereby multilateral and bilateral donors worked in a collaborative and coordinated manner with partners and practitioners towards the achievement of the rule of law for all. The global platform for donors, recipients, and multilateral and regional organizations, as well as for non-governmental organizations, was to maximize efforts, coherently inform policy and consistently improve practice.
An annex contains the views of reporting States — Austria, Bolivia, Colombia, Cuba, Czech Republic, Democratic Republic of the Congo, Italy, Mexico, Portugal, Slovenia and Switzerland.
Another report before the Committee deals with the scope and application of the principle of universal jurisdiction (document A/65/181). It was prepared by the Secretary-General based on information from Governments regarding the principle and its application. An introductory section is followed by an overview of Government comments conveying their understanding of the principle. Then more specific information is provided based on domestic legal rules, applicable international treaties and judicial practice, with the information augmented by tables. The final section contains a synopsis of issues raised by Governments for discussion and comments.
The report states that responses were received from Armenia, Australia, Austria, Azerbaijan, Belarus, Belgium, Bolivia, Bulgaria, Cameroon, Chile, China, Costa Rica, Cuba, Cyprus, Czech Republic, Denmark, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Iraq, Israel, Italy, Kenya, Kuwait, Lebanon, Malaysia, Malta, Mauritius, Netherlands, New Zealand, Norway, Peru, Portugal, Republic of Korea, Rwanda, Slovenia, South Africa, Sweden, Switzerland, Tunisia and the United States.
In its summary of comments, the report states that some Governments focused on the positive and negative aspects of the principle, in terms of its scope and application. On the positive side, it was noted that a clear signal was being sent to perpetrators of heinous crimes that they would not be accorded safe havens. The principle also served to complement international jurisdiction. On the negative side, it was noted that the principle could be invoked selectively on the basis of political motivations and thus was prone to abuse, in addition to its application tending to be expensive, time-consuming and inefficient. Its unwarranted use could have negative consequences for the rule of law at the international level and for international relations. Adherence to the principles of State sovereignty and diplomatic immunity must be scrupulously observed in the exercise of universal jurisdiction.
The report notes that some Governments acknowledged that the exercise of jurisdiction based on the principle of universal jurisdiction was controversial in doctrine and in practice. Views diverged on the types and range of crimes for which it could be invoked and on the requirements and conditions for its exercise. Since there was no universally accepted clear definition of universal jurisdiction, discussion should centre on the crimes to which it should apply, whether the accused must always be present in the State that was exercising universal jurisdiction and whether some “connecting link” was necessary between the accused and the State exercising universal jurisdiction.
Finally, the report states that the fight against impunity was a common goal of States and a discussion of universal jurisdiction would enhance appreciation of the scope of universal jurisdiction in international law. Some Governments, however, expressed a preference for a cautious approach, noting work already being done on the subject, including by the International Law Commission and in its work on the related issue of the obligation to extradite or prosecute. The suggestions were made to either entrust the topic to the Commission or establish a working group of the Legal Committee to identify similarities in how States treated universal jurisdiction.
Rule of Law: Briefing by Deputy Secretary-General
ASHA-ROSE MIGIRO, the United Nations Deputy Secretary-General and Chair of the Rule of Law Resource and Coordination Group, briefed the Committee on rule of law activities. She recalled that the complex concept was embedded in the history of all cultures and nations, and was linked to critical goals such as poverty reduction and sustainable human development, as well as to the promotion of peace, accountability and combating crime and terrorism. It was integrally tied to global governance, the theme of the Assembly’s presidency during the current session.
She said the past year had demonstrated the importance of international judicial and non-judicial mechanisms in promoting compliance with international law, preventing conflict and combating impunity. Those mechanisms, however, needed strengthening. Positive complementarity must be strengthened to reinforce and build national capacities. Member States should accede to major international instruments, including two that would mark important anniversaries in 2011 — the 1951 Convention on the Status of Refugees and the 1961 Convention on the Reduction of Statelessness.
Further, she reaffirmed the Secretary-General’s conclusion that implementation of international norms at the national level remained a critical challenge and said the report highlighted the experiences of United Nations mechanisms and approaches, such as model laws, peer reviews and treaty-based periodic reviews. Those experiences showed that States were assisted most when linkages were increased between monitoring and review mechanisms and by targeted capacity-building and technical assistance.
She said such assistance was being provided to more than 125 States in every region of the world and in all contexts, from conflict prevention to peacekeeping to development activities. At least three agencies were engaged in such support in at least 60 countries and five were carrying out activities in more than 35 countries, 17 of which were hosting peacemaking, peacekeeping or peacebuilding missions. The trend was towards joint and comprehensive initiatives, particularly in conflict and post-conflict States, by the Departments of Political Affairs and Peacekeeping, the High Commissioner for Human Rights, the United Nations Development Programme (UNDP), and the Office on Drugs and Crime. Partnerships were being formed with groups such as the West African Coast Initiative.
The resource group which she chaired brought together nine entities and had made progress on implementing the 2009-2011 first Joint Strategic Plan. A common approach to transitional justice had been issued and steps were being taken to enhance common approaches to complex issues. Progress had also been made in two target countries, Liberia and Nepal. Increasing visibility of efforts was critical, as was the mobilization of resource. Further, leaders from 15 countries had been brought together for a review of assistance effectiveness.
The need to better address issues related to tradition and informal justice had been emphasized, she said. The United Nations had enhanced its “capacities” in the past year, including by the establishment of the Standing Justice and Correction Capacity alongside the Police Capacity in Peacekeeping, the launching of global programmes by the UNDP and the deployment of mediation teams by Political Affairs. Still more efforts were needed to better recruit, train and retain high-quality personnel. The external environment consisting of donors and assistance providers was still fragmented. Recipients were not sufficiently involved in policy discussions. Also needed were more consistent needs and threat assessments, security-sector reform, better monitoring and an address of the political and institutional aspects of rule of law development.
In conclusion, she recalled that the rule of law was linked to sovereignty and control over the use of force, as well as resources and other similarly sensitive matters. A 2011 high-level event would be held for a review of what remained to be done in the area.
ISABELLE F. PICCO ( Monaco), Chair of the Legal Committee, recalled after the briefing that the focus of the debate would centre on the laws and practices of States in implementing international law. Specifically, delegates were requested to comment on issues such as laws and practices in the domestic implementation and interpretation of international law; strengthening and improving coordination on technical assistance and capacity-building; mechanisms and criteria for evaluating the effectiveness of such assistance; ways and means of advancing donor coherence; and perspectives of recipient States.
JEAN-CÉDRIC JANSSENS DE BISTHOVEN (Belgium), speaking for the European Union, said that as an international organization based on successive international treaties between members, the Union had developed its own legal system, of which the rule of law formed an integral part. The Treaty of Lisbon, entered into by Union members in 2009, unequivocally confirmed the rule of law as a “guiding principle” and “principle objective” on the international platform and within its external policies as well. Continuing, he said that the United Nations activities in the area of law, which were an essential condition for global peace and stability and conflict prevention, offered “legal empowerment of the poor” and were an effective tool in the eradication of poverty. Thus, international law and the rule of law, he said, were the foundations of the international system with the Organization at its core.
He said he supported the Secretary-General’s stance that, while fostering the rule of law on an international level, common efforts should be focused on national implementation. To this end, he called for all States, as well as international organizations and non-State actors to fulfil their international obligations and translate them into their internal legal systems.
Turning to the Rome Statute (of the International Criminal Court), which he said was a prime example of international and national interaction on the rule of law, he urged that any States not party to the Statute should ratify or accede to it; States party to it should implement the Statute within their national legal order if they had not done so. He called for the convening of a high-level meeting on the rule of law. He noted the European Union’s own activities in support of the rule of law, providing concrete assistance to many countries, particularly in post-crisis situations, and conducting “rule of law missions” towards rebuilding judicial structures in Georgia, Iraq and Kosovo.
ALICE REVELL (New Zealand), speaking also for Canada and Australia, noted the work of the Rule of Law Coordination and Resource Group in helping Member States’ formulation of legislation and policies. Increased assistance, where needed, should be provided to State parties who were implementing the Rome Statutes on a domestic level; the strengthening of domestic jurisdiction would improve capacity to prosecute serious international crimes.
She said Australia and Canada were all engaged in activities that strengthened the rule of law in their policies. New Zealand was working with Pacific Island countries to enhance their capacity to domestically implement international legal instruments, focusing on, among others, international counter-terrorism and anti-corruption conventions and anti-money-laundering norms. She observed such time-consuming work impacted small States with limited resources and to that end, New Zealand funded participation by Pacific countries in a regional Working Group on Counter-Terrorism.
Australia, she continued, also supported regional efforts towards implementing international legal instruments into domestic policies, not just within the Pacific region, but in South-East Asia and Africa as well, through modernization of legislation dealing with transnational crimes and police powers and criminal offences and procedures. Canada had been involved in strengthening the rule of law in Afghanistan since 2006, with financial assistance of almost $90 million towards the reform of the national police, support for the justice sector and the enhancement of the correction sectors. Canada had also just announced an action plan regarding the Security Council’s relevant resolutions on women, peace and security, and supported the updating of a guide on international humanitarian and human rights law addressing the protection of children in armed conflict. She said that Canada would continue to support the international criminal justice system and would encourage the strengthening of rule of law between domestic and international jurisdiction in the investigation and prosecution of serious crimes.
ESHAGH AL HABIB (Iran), for the Non-Aligned Movement, said that a number of elements were essential for fostering international relations based on the rule of law: the principle of sovereign State equality; mutual respect between States and compliance with obligations under treaty, as well as customary international law; respect for the legitimate and legal rights of States; and the principle of the prohibition against threat or use of force, which included the peaceful settlement of disputes that constituted the cornerstone of the rule of law at the international level. States should resort to the peaceful dispute-settlement mechanisms and tools established under international law, including the International Court of Justice, treaty-based courts and arbitration.
He said the rule of law, human rights and democracy were independent and mutually reinforcing; all States should fulfil their obligations. He stressed the negative impact of the application of unilateral measures. Close cooperation and coordination within the United Nations was crucial for meeting threats and challenges, but the encroachment of the Security Council on the functions of the other organs was of concern.
He said national capacities must be strengthened for the domestic implementation of international norms. Technical assistance and capacity-building were crucial for States to meet their international obligations, but assistance must always be rendered at the request of a State and delivered strictly within United Nations mandates. Finally, rule of law and accountability within the Organization were equally important. The new system of administration of justice in the United Nations was welcome.
On recent events in Ecuador, he said the Non-Aligned Movement expressed its gravest concern over the “failed coup d’état”, and called on the international community to unequivocally condemn such unconstitutional actions and stand firm in defence of constitutional and democratic stability in that country.
For the African Group of Member States, LESLIE K. CHRISTIAN ( Ghana) said international law would promote and protect the dignity of both individuals and States when the international legal order infused doses of fairness and equity into human rights, economic law, environmental law and rules relating to maintaining peace and security. To that end, various international institutions such as the Security Council and other United Nations bodies were “crying for reform”, since their decisions were usually implemented at the national level.
Likewise, he said, international law could not be effective without domestic implementation. The fundamental principle of equality before the law must be scrupulously followed; there should be no double standards if international law were to promote friendly relations between States. Capacity-building was key for implementation, and the efforts of the rule of law mechanisms within the United Nations should be encouraged to explore initiatives that would allow donors, recipients and other entities involved in financing rule of law activities to work in a more coordinated and collaborative manner.
Referring to the African Union Commission on International Law which had become operational in May, he said the Commission’s aims were to promote the codification of international law, as well as its progressive development, and also to implement international law in line with the overall development objectives of African States. The United Nations should collaborate with the Commission. He said he supported the holding of a high-level event on rule of law.
HASAN KLEIB ( Indonesia), speaking for the Association of Southeast Asian Nations (ASEAN), said the ASEAN Charter established, for the first time in that region, a legal and institutional framework that would, by 2015, transform the region into a “rules-based, people-centred and closely integrated community”. To ensure this, all ASEAN member States were committed to implementing their obligations under international treaties and ensuring a more effective enforcement of agreements within the Association. The Agreement on Privileges and Immunities, and the Protocol to the Charter on the Dispute Settlement Mechanism were also adopted.
He said that to demonstrate collective commitment to good governance, the Association would be establishing the ASEAN Intergovernmental Commission on Human Rights and the ASEAN Commission on the Promotion and Protection of the Rights of the Women and Children. Their mandates would promote and protect human rights in accordance with domestic law of each ASEAN country and the relevant international instruments to which they were parties.
ALEJANDRA QUEZADA ( Chile), for the Rio Group of countries, commended the report on rule of law activities as comprehensive, but regretted that it was issued so late, a problem encountered with previous agenda items.
She said the link between the rule of law on the international level and national level was exemplified by cooperation between States, which in turn, made “international law work”. The domestic implementation, which remained an important challenge, was essential for international obligations to be fulfilled.
She said she supported the Secretary-General’s stance that national perspectives be at the centre of rule of law activities and that any programme of strengthening the rule of law at the national level needed to take into account the socio-political context and local needs and realities. Local ownership needed clarification in each situation when addressing capacity-building and technical assistance. Overall coordination and coherence was essential in the success of the Organization’s rule of law activities. In this connection, she noted the establishment of the Rule of Law Coordination and Resource Group and welcomed the holding of a General Assembly high-level meeting on the issue.
She said that regional agreements and mechanisms, such as the Rio Group, fostered the rule of law within Member States. Integration, based on shared values and principles that were enshrined in national constitutions, contributed to dialogue, cooperation and solidarity.
She said the recent coup d’état attempt in Ecuador and the kidnapping of President Rafael Correa were to be condemned. The Rio Group would not tolerate challenges to civil power legitimately elected in any country in their region.
STEFAN BARRIGA ( Liechtenstein) said strengthening rule of law activities was not just a technical exercise; it went right to the mandate of the United Nations and its role in global governance. The call for holding a high-level meeting on the rule of law should receive support. On strengthening the rule of law within the Organization, he said progress had mostly taken place as a matter of political pressure and under a pragmatic approach. The time had come to align the rules of the United Nations with international law. The specific nature of the Organization should be taken into account, including the Security Council’s mandate under the Charter and the way in which the United Nations had evolved with multiple operative mandates around the world. The Organization’s jurisdictional immunity no longer sufficed.
He called for support for the International Criminal Court, and said States should domestically prosecute crimes that pre-dated the Rome Statute. Assistance to States, in that regard, should not be limited to post-conflict peacebuilding but should take into account the principle of prevention. The Office on Drugs and Crime should take the lead and the Resource Group should make suggestions on ways to go forward.
ANA CRISTINA RODRÍGUEZ-PINEDA ( Guatemala) said the most effective way to promote international rule of law was for States to gradually work international norms into national legislation. Guatemala’s relationship with the United Nations in the area of rule of law had begun in 2006, when a Commission against Impunity had been established. In the years since then, the national capacity to make use of assistance had increased because of technical capacity-building and legislative assistance. National institutions had gained in professional skills; the Commission had proved that it was possible to counter impunity in Guatemala. The current debate helped to promote and strengthen rule of law.
YURI NIKOLAICHIK ( Belarus) said that the Organization’s efforts to implement the rule of law would add transparency within the United Nations system. It should be taken into consideration in the Security Council and other bodies in the Organization which made rulings. The roles of the International Criminal Court and other international tribunals hinged on the civilized settlement of disputes through the explanation and interpretation of principles. Therefore, political consideration should not be engaged, as that would have a negative impact on States’ commitment towards a peaceful settlement.
On national capacity, he said Belarus gave a place to such principles in its domestic law-making, including the adoption, in 2008, of new comprehensive legislation in line with its Constitution, the Vienna Convention and other international laws. International treaties, to which it was a party, were part of that domestic legislation and all holders of office, such as the President, National Assembly and the Council of Ministers, were committed to implementation of international treaties. He stressed that States bore the main responsibility in implementing the rule of law and said international activity should not substitute national effort. He also called for the United Nations, in its assistance to States, to find more effective measures that responded to the unique needs of each.
MARY ELIZABETH FLORES ( Honduras) stressed that the law “must go hand in hand with justice”, and that the Legal Committee had been mandated to uphold and ensure that the law overcomes prejudice and levels out inequalities. Furthermore, the structure of law was that of a living organization and that the “order of change makes possible change of order”. She observed that law could also become irrelevant and obsolete, and just as people needed to evolve or perish, so must the tools of justice. States must become more efficient and adjust to social needs.
The outcome document on the recent high-level summit on the Millennium Development Goals established new and improved commitments towards women and children in the eradication of poverty, and in ensuring the rule of law towards sustainable development. Keeping peace and security was based on the rule of law, and was both a national and international responsibility. The empowerment of women in the political and judicial arena on all levels would be a major step forward in legal terms.
LYDIA MATAPO ( Zambia) said States must develop legal and institutional frameworks that reflected and supported the basic tenets of rule of law, if they were to promote adherence to it. The legal frameworks needed to be clear and consistent in their application within institutions that were well structured, well financed and well equipped. Staff of the institutions must be well trained and all elements must be able to be held accountable. Of note in that regard were the efforts of the rule of law mechanisms within the United Nations in helping States develop national laws that incorporated international norms and standards. She said Zambia’s Constitution contained a provision that all were equal before the law; oversight institutions had been established to ensure that equality. A “whistleblower protection” mechanism had also been established. Periodic elections were a further testament to the adherence of rule of law and her country would hold elections next year.
DIANA TARATUKHINA ( Russian Federation) said there was no need to prove the importance of the rule of law. There would be no peace on the planet without it. Implementation of rule of law measures spanned a great range of fields, from the planning of strategies to improving prisons and judiciary systems. Her country’s Constitution, as well as specific legislation, called for good faith implementation of international treaties, including with regard to sanctions regimes as set out in the Charter. States must also recognize a priority hierarchy with regard to Charter provisions. Expanding the interpretation of the sanctions regime was not an instrument to be used in implementing the rule of law. International norms must be implemented uniformly by all.
ALI KARANOUH ( Lebanon) said that, despite their different sizes, geographical locations, identities and beliefs, States were bound by the commitment of international law which had been crafted together to ensure, among others, principles of equality and human rights. The peaceful settlement of disputes as the alternative to conflict was a core responsibility of international tribunals. However, selective application of international law with regard to the actions of some States had a “grave” impact on the rule of law by giving the impression that some States were above the rule of law. This, he contended, impacted the reputation and credibility of the United Nations.
He said Lebanon had a right and a duty to ask why some international resolutions were implemented while others were disregarded, and why sanctions on one State were implemented but not on others. He also questioned the value of the International Court of Justice advisory opinions when not all States complied with them. As a founding Member of the United Nations, he added, Lebanon was committed to its principles, and he pointed out that the basis for international security was the “force of law and not the law of force”, a principle that had been crafted by all Member States and “which all of us have to respect”.
JUAN MANUEL SÁNCHEZ CONTRERAS ( Mexico) said international law expectations on the rule of law at the national level were legitimate, because they had been created by States through recognized rules and procedures. As globalization moved forward, such legitimate expectations touched an increasing number of fields, with human rights being the most common domain; Mexico had already experienced the benefits, particularly through the American Convention on Rights and the Inter-American Democratic Charter. Discussing expectations about the rule of law was useful and valuable; however, national implementation was essential. The United Nations and other international agencies must take into account local needs and realities while working on strengthening the rule of law at national levels, including technical assistance.
The work of the International Criminal Court and other special international tribunals had also strengthened the rule of law, and national cooperation was as indispensable as judicial capacity-building. This also applied to new challenges, such as piracy on the sea. The proliferation of international legal obligations presented a series of challenges to efficient domestic implementation and the integrity of international law. It was of utmost importance to maintain a comprehensive approach. The rule of law offered a general frame of legitimacy and efficacy in order to face the most diverse global challenges.
ALI ABDELRAZAG ( Libya) regretted the late issuance of the report, which did not give all delegates the opportunity to look at it until yesterday. He said he supported the work of the Rule of Law Unit and hoped tangible progress would be made in the area of accountability of officials and experts on missions. He noted the focus there had been on implementing the rule of law on a national level. However, he stressed, it must not be forgotten that there was a close link between the implementation on a national level and the implementation on an international level. This was not a problem in his country, which was party to many international conventions and which had also used the International Criminal Court on issues of sovereignty.
He said that the responsibility of the Organization in implementation on an international level was linked to key United Nations principles. Thus the “urgent reform” his country had requested of the General Assembly’s role was essential to ensure a democratic process. With powers limited to making statements and non-binding recommendations, most States welcomed his country’s proposed reform including the high-level panel on threats and challenges. He also urged the reform of the Security Council to make it “represent in a fair manner all countries in the world, including Africa”.
BYRGANYM AITIMOVA ( Kazakhstan) said her country would continue activities towards the early implementation of most advanced international regulations within its legal system, so as to put the great benefits of international law at the service of Kazakhstan’s people. The strategy had been formalized at the end of last year into a 2010-2020 legislative framework plan. Basic guidelines for the development of a Kazakhstan model of a political and governance structure towards democratization and liberalization in political life had been adopted during Kazakhstan’s 2010 chairmanship of the Organization for Security and Cooperation in Europe (OSCE). Implementation took into account both the policy decisions of OSCE and the major historic United Nations instruments.
She said her multinational country comprised more than 126 nationalities. The rule of law there was a cornerstone of stability to promote understanding and eliminate ethnic strife.
MOHAMMED LOULICHKI ( Morocco) said that, based on his country’s experience, the national process aimed at achieving the rule of law benefited from States’ ownerships of their reform programmes. The international community had several mechanisms to achieve this important goal, particularly by creating more opportunities to engage in a dialogue with countries initiating reforms; such dialogue was an important tool to understanding each country’s priorities. Also, building the capacities of developing countries was a key element to promote the national implementation of the rule of law. The Rule of Law Coordination and Research Group, as well as the Rule of Law Unit, should be able to count on Member States to provide them with the necessary sustainable resources needed to fulfil their mandates.
He said Morocco had accorded human rights a high priority. It had embarked on an irreversible course of action aimed at consolidating the rule of law, democracy, good governance and sustainable human development. In applying the provisions of international conventions, Morocco’s courts had confirmed the primacy of international human rights over domestic law in a number of decisions, a trend likely to become more pronounced under the impact of a new focus in a training course for judges. Effective participation of society was also a prerequisite to succeed in any reform process. Among the principles guiding various reforms was the aim of developing mechanisms and tools enabling the Government to determine and respond to the real needs of the population. Such “proximity” was already at work in the Moroccan National Initiative for Human Development, a key tool to promoting the rule of law.
ÅSMUND ERIKSEN ( Norway) said the reception of international legal norms in national legal systems depended on each Member State’s constitutional system. Norway, within the “dualistic” tradition, believed that to obtain domestic legal force, international norms needed to be transposed into corresponding rules of national law. Norway’s implementing methods took into account a dynamic development of international law. Member States should fully implement and comply with relevant international obligations in their domestic legal order. Norway commended the United Nations Rule of Law Unit for the technical assistance it provided to Member States.
However, he warned, the implementation of treaties and the enforcement of national law could be undermined by a lack of capacity and institutional instability. The re-establishment of national rule of law and accountable and effective security institutions must be central elements in international development efforts, with the United Nations taking a leadership role. Norway had, among other things, increased efforts to strengthen the protection of civilians against the atrocities of war. Further, national implementation of international law was particularly important in the field of international criminal justice, and ending impunity through strengthening national and local judicial systems had proven to be a key in combating such crimes.
When the Sixth Committee met again this afternoon, GREGORY NICKELS ( United States) said nations had recognized it to be in their interest to assume legal and binding obligations to achieve their collective goals. A key to achieving those goals was an effective implementation of international legal obligations at the national level. Without effective implementation, State by State and party by party, treaty obligations were no more than words on paper and empty promises. His country took its international obligations seriously. Before becoming a party to a treaty, it was the practice of his Government to review its terms to ensure that it would be in a position to implement the obligations contained in it. When necessary or appropriate, that review included consulting with other federal agencies, members of Congress, local and state authorities, private industry and civil society. In many instances, that process took considerable time, but it was necessary so that the country could be confident that it would be in a position to fulfil the treaty obligations to which it committed.
The United Nations could play an important and constructive role in promoting the rule of law as it worked to build domestic institutions and capacity, he went on. More than 40 United Nations entities were involved in the rule of law activities at the national level, in post-conflict and other circumstances. The United States supported efforts at the United Nations to coordinate the Organization’s rule of law activities in order to maximize efficiency and avoid duplication.
FERNANDO MANHIÇA ( Mozambique), emphasizing that development must be based on the rule of law, said his country had made great progress towards consolidating its democracy, strengthening a democratic framework nation and consolidating its legal institutions. His Government had institutionalized an annual audit of its budget, carried out by the Administrative Court, to ensure public accountability. The country’s media sector was “growing in diversity” and consolidating the freedom of speech. On an international level, Mozambique was party to many international treaties, particularly those related to terrorism, money-laundering and human rights.
Within the context of the African Union, he noted, the rule of law had been strengthened, with democratic and legal institutions ensuring broader participation for both citizens and civil society in all aspects of the economic, social and political arenas. To this end, African leaders had created the New Partnership for Africa’s Development (NEPAD) which addressed economic, social accountability and good governance concerns. Also established was a peer review mechanism, a voluntary scheme which supported African countries in strengthening their democratic rule and governance structures by sharing best practices, transparency and accountability. Participation was growing in this endeavour.
PARK CHULL-JOO ( Republic of Korea) said the promotion of the rule of law was an essential goal of the United Nations, as well as a critical means to achieve all other objectives of the Organization. Despite many initiatives in the area, challenges remained, and assistance involved many actors and different voices, given the broad range of rule of law concerns. He agreed that more needed to be done to achieve coordination and coherence in such assistance, and the United Nations should play a key role. For that reason, he supported in principle the plan to support the holding of a high-level segment in the General Assembly on the rule of law, but would like to know more detail on the global platform for coordination proposed in the Secretary-General’s report.
He said that his country had “a monistic approach” to the relationship between international and domestic law, so accordingly the Constitution clearly stipulated that treaties properly promulgated had the same effect as domestic law, without the need for specific legislation. However, several cases were still found in which the country adopted or amended national laws in cases where it was felt that those measures were necessary. In addition, he noted that the Korean Constitutional Court had the judicial power to decide whether specific provisions of international law were consistent with the Constitution. He stressed that promoting the rule of law was an evolving process and his country looked forward to continuing work on the important agenda item.
PAUL BADJI ( Senegal) said there clearly was a need for a just and viable international order based on the rule of law, judging from the many requests of Member States during the last General Assembly calling for more effective multilateralism. The rule of law, he said, was the only guarantee to peace and security and to sustainable development. While recognizing the progress made in strengthening the rule of law on an international level, he noted that challenges remained in order to realize the goals of the United Nations. Compliance under multilateral treaties and international law and the respect for the rule of law were linked; absence of the political will to follow these rules was a “serious impediment” in actualizing these principles.
Continuing, he said that the “cross-cutting of the rule of law and the diversity of stake holders” was a challenge to successful coordination and coherence, in which connection he supported the convening of a high-level meeting to be convened. The emergence of a safe and peaceful world based on rule of law would create the foundation for the peaceful settlement of disputes and would sustain the rulings of the International Criminal Court. To this end, he said, he favoured the promotion of mediation and the strengthening of mechanisms such as diplomacy and peacebuilding.
EBENEZER APPREKU (Ghana), speaking in his national capacity, said that, while there was no specific reference to the term “rule of law” in the Charter, the Charter was both a product and source of international law and was thus the foundation for the rule of law that would guide and inform the behaviour and obligations of States. He noted that a joint prison assessment team had visited Ghana during the reporting period with a view to Ghana becoming a party to the optional protocol on the torture Convention.
In addition to better coordination and cooperation among rule of law mechanisms within the United Nations, he said the regional organizations, such as the African Union, must be better engaged, and their rule of law activities better supported, in areas such as the promotion of respect for the rule of law, enhancement of constitutional governance, securing of accountability, and combat of corruption and crime. Addressing the rule of law at the “national and international levels” should include equal attention to the regional dimension. The holding of a high-level event on rule of law deserved serious consideration. It was also perhaps time to declare a year and a decade of the rule of law to sustain momentum in the international community at all levels.
In Ghana, he concluded, the basis for the rule of law was laid down in the Constitution, which also provided for independent bodies to enhance responsiveness, transparency and accountability. Provisions of international instruments had also been incorporated into municipal law but such incorporation was not a prerequisite for applicability of treaties, particularly in matters relating to regional mechanisms.
CHRISTOPHE GONZALES ( Monaco) joined others in regretting the late availability of the report. He said the rule of law was at the heart of the United Nations, and pointed out that the opening of the General Assembly began with the annual ceremony of the signing of treaties. There were many activities and bodies that supported the rule of law, including, among others, the meeting held by the Security Council this past June, which specifically addressed the rule of law in post-conflict countries.
He urged that the rule of law be addressed in its entirety, including examining the standards of the United Nations and its implementation on national levels. Although there were supportive mechanisms and technical assistance in this regard, there was a need for more help; it was up to Member States to attend to this. The gap between national and international implementation was of concern and he suggested focusing on Member States in order to identify the obstacles. A national constitution, which was the “lynchpin”, should facilitate this process; if there was not an adequate framework in place, assistance would be necessary. He then called for the convening of a high-level meeting that would address this and other concerns with regard to implementing the rule of law on all platforms.
GUO XIAOMEI ( China) said full and faithful implementation of international rule of law and the preservation of the international community’s overall interests were mutually reinforcing elements. The discussion about laws and practices of Member States would enhance mutual understanding and allow countries to draw on each other’s experiences towards full implementation of international law, she said. China had acceded to more than 300 multilateral treaties and concluded more than 20,000 bilateral agreements since it began reforms in 1978. It took international treaties very seriously and fully honoured its obligations.
She said the Chinese Government had also adopted or amended domestic legislation to align it with international obligations. In the field of civil and commercial affairs, some international treaties were applicable in China through being directly invoked in judicial practice, or included in provisions which acknowledged their priority over domestic legislation. China paid particular attention to incorporating international law in its own policies, taking a responsible approach in domestic and foreign affairs, she said. It was ready to increase exchanges on the issue with the United Nations and other Member States, making unremitting efforts to work with others to achieve the goal of the rule of law around the world.
HATEM TAG-ELDIN ( Egypt) noted that at the United Nations World Summit in 2005, Member States unanimously recognized the need for universal adherence to and implementation of the rule of law, at both the national and international level. On the international level, respect for international legal obligations was the basis for friendly relations among States. Enhancing respect for the rule of law was fundamental to maintaining international peace and security, and also to the effective protection of human rights. Rule of law was needed to govern actions of States and intergovernmental organizations, so Egypt reiterated the importance of coordination among different United Nations organs that were involved in the implementation of those programmes. In addition, ensuring fairness under law, while expanding access to justice, had become an important element in peacebuilding efforts.
He said establishing rule of law through legal and security institutions was essential to help ensure sustainable governance in post-conflict societies; it was essential for a viable “exit strategy” for any peacekeeping operation. Egypt supported the theme proposed by the President of the General Assembly for the current session reaffirming the central role of the United Nations in global governance, emphasizing the rule of law was a concept at the heart of the United Nations mission.
THANISA NAIDU ( South Africa) said that in order to be effective, international law must be implemented at both the international and domestic level. The post-apartheid South African Constitution had given a particularly prominent role to international law and its domestic application. The Rome Statute of the International Criminal Court was among the many instruments that had been incorporated into domestic law. The indirect application of international law under the South African Constitution had reflected the openness of its system.
In that regard, the impact of international law had been significant, she said. She quoted a case where her country’s Constitutional Court relied significantly on internal human rights laws to conclude that the rights to life, dignity and security deemed the death penalty unconstitutional. There were endless examples, she said, which reflected an attitudinal change in South Africa towards the utilization of international law. The unprecedented status that international law had gained in his country presented great challenges and opportunities for the legal community. It ensured that international law would play an important role in upholding and protecting South Africa’s constitutional democracy.
FERNANDA MILLICAY ( Argentina) said legislation and practice of States with regard to international law directly related to the application of international norms at the domestic level within different constitutional systems. In Argentina, which was a federal country, conventional and customary international law was directly applicable domestically. The Constitution provided that treaties were hierarchically superior to laws, and certain human rights treaties were understood to complement the rights and liberties recognized by the Constitution.
Internationally, she stressed the importance of United Nations initiatives to build capacity to strengthen the rule of law, particularly in conflict situations. Priority to the issue must be accorded in mandates, especially to strengthening domestic judicial and police systems. It was also essential to bring perpetrators of serious human rights violations to justice, with the International Criminal Court having a central role in that effort. Peaceful settlements of disputes through the International Court of Justice, specialized tribunals, the good offices of the Secretary-General and good-faith negotiations were also crucial.
She said she joined others in condemnation of the kidnapping of the President of Ecuador, highlighting the support given to that President by organizations in her region.
PAONI TUTA ( Democratic Republic of the Congo) said the rules of international law did not need to be in expressed conformity with her country’s laws for a judge in her country to refer to international law in a ruling. In many parts of the country, however, judges were unfamiliar with international law and could not resort to that resource. Her country had been one of the strongest proponents of the International Criminal Court, and the rule of law promoted by it, with regard to the most heinous crimes, such as those which had been perpetrated in her country against women and children and other vulnerable people. Nevertheless, prosecutions had been carried out, however inadequately relative to the heinousness of the crimes. In a post-conflict society such as hers, the rule of law was paramount in bringing about a justice system that was reliable, moral and effective under the provisions of the Charter and in line with international law. Implementation of international standards and norms was key to bringing to justice the perpetrators of the most serious crimes.
PALITHA T.B. KOHONA ( Sri Lanka) said strengthening the rule of law would help maintain peace, resolve disputes and promote development. Noting that the concept must be understood in the context of the various values of Member States, he said the United Nations had a major role in advancing the rule of law and must do more to ensure central coordination. It could lead the area of capacity-building in post-conflict countries, developing their national legal frameworks and incorporating international norms and standards where appropriate.
Further, the Rule of Law Unit must be strengthened at the international level to address challenges, from the promotion of democracy and human rights to combating organized crime and terrorism. Urging respect for the principle of sovereign equality, he stressed the importance of non-interference in the internal affairs of Member States, adding that prescribing solutions to internal circumstances based on experience elsewhere or on theoretical generalizations must be avoided.
The obligation of States to implement at the national level commitments undertaken in international agreements was also important, he said. He noted that Sri Lanka was committed to complying with the treaties to which it was party. It had increased its participation in treaty negotiation in various fields, and had always advocated peaceful dispute settlement, even in the case of the Liberation Tigers of Tamil Eelam, when the Government sought to end that conflict through negotiations. The Government was committed to protecting the rights of all its people. Strengthening the rule of law, nationally and internationally, was a common responsibility, and Sri Lanka strongly supported all stakeholders in fulfilling that goal.
LESTER DELGADO SÁNCHEZ ( Cuba) expressed his support for the President of Ecuador and the recent events that threatened the rule of law in that “brotherly country”. Turning to the rule of law on both a national and international level, he stressed that the Charter of the United Nations and the principles of international law were based on the rule of law. They were essential to sustainable development, and compliance of Member States, with their commitment to international agreements, was indispensable in promoting the rule of law at all levels.
He said it was necessary to adopt national laws to international treaties, starting with the jurisdiction of all States to their right of self-determination and sovereignty. It was crucial that the international community not usurp national self-determination, but support it. In that regard, he said he was concerned with a “growing trend towards selectivity” of courts interfering in areas not under their competency. Condemning national laws that were extraterritorial, he called for the immediate recall of the 50-year-long blockade against his country.
HADI MUTLEQ ALSUBAIE ( Kuwait) said he acknowledged the duty to protect human rights, including the right to self-determination. In line with such beliefs, Kuwait enjoyed a constitutional democratic system that guaranteed Kuwaitis’ rights and spelled out their duties. Respect for the rule of law was embodied in the principle of separation between the legislative, executive and judicial authorities, and their duty to cooperate with each other. Proud of its top rankings in education, health-care and the guarantee of rights and freedoms, Kuwait also had approved a $115 billion development plan that aimed to improve infrastructure and services.
Internationally, Kuwait adhered to international principles, he said, including that of non-interference in internal affairs of other States or encroachment on their sovereignty. The Arab-Israeli conflict was the issue that most threatened security in the Middle East, and the failure of the United Nations to resolve that pivotal case had pushed Israel to pursue its settlement policy and impose a siege on Gaza. In that context, he said he renewed his support for the creation of a Palestinian State with Jerusalem as its capital, and support for the Syrian Arab Republic to recover the occupied Golan. Kuwait wished to see the rule of law applied appropriately, so that the United Nations could find solutions for conflicts between the principles of international and national law.
MOHAMMED ERFANI AYOOB ( Afghanistan) said advancing the rule of law at both the international and national levels was essential for promoting peace and security, good governance, sustainable development, social progress and human rights for all. To that end, the United Nations must play a central role in leading, promoting and coordinating international efforts. Two decades of incessant armed conflicts and violence had led to the destruction of Afghanistan’s institutions, he said, most notably its rule of law and justice sectors. Nevertheless, Afghanistan had made great strides since the 2001 adoption of its Constitution, which served as the foundation for its democratic institutions and a vibrant civil society that promoted the rule of law and human rights.
At the national level, the Afghanistan Government, with help from the international community, had taken steps to develop its justice system, particularly increased access for women, among other measures that would ensure security and protect the rights of all citizens. Building on the Kabul Conference commitments, the Government continued to take steps to enhance the rule of law in various areas, among them, improved legal aid services and a strategy for long-term electoral reform. Sustained and coordinated support was required to help the country further build upon that foundation. He reaffirmed Afghanistan’s commitment to implement the rule of law at the international level, and expressed his gratitude to the international community for its commitment to the plight of the Afghan people.
MANG HAU THANG ( Myanmar) said Myanmar had exercised the principles of international law since the adoption of the United Nations Charter. It was currently in the process of drafting national laws, based on the 1961 Vienna Convention on International Relations, and other Conventions, and was revising its 1977 Territorial Sea and Maritime Zones law to be in line with the 1982 United Nations Convention on the Law of the Sea. Final copies of the new draft law would be announced after approval at the highest political level. He reaffirmed Myanmar’s commitment to closely monitor the rapidly progressive development of international law as rule of law across the globe and beyond “for generations to come”.
BARAKA LUVANDA (United Republic of Tanzania) offered thanks for the technical assistance his country received from the United Nations in the passage of the Comprehensive Child Law Act, which incorporated the provisions of the Convention of the Rights of the Child in the United Republic of Tanzania. He said his country followed the dual system, where international treaties must be incorporated into domestic laws either through amending existing law or enacting new legislation. Where there was ambiguity in the language of the legislation, the courts would look at the relevant treaty, irrespective of whether the legislation mentioned the treaty or not. Furthermore, as a State party to the Vienna Convention, courts in the country also interpreted treaties according to the Convention, thus allowing for remedies to be sought when needed.
He observed that the Secretary-General’s report highlighted challenges needing collective engagement through international cooperation. Such cooperation was essential, he emphasized, when incorporating the rule of law in post-conflict countries and in challenging organized crime, corruption and illicit trafficking.
EDUARDO ULIBARRI ( Costa Rica) said that concerns for full implementation of the rule of law had gained ground, although there were still challenges. On an international level, the cooperation between States should include binding and non-binding norms in order to ensure effective compliance and to combat impunity. He also said it was important to pay particular attention to the legal context of United Nations bodies, including the Security Council’s methods of operations. The appointment of an ombudsman in the new administration of justice in the Organization would be a significant step in the right direction.
He commended the International Criminal Court for being able to “lay a hand” on perpetrators, and ensuring those charged not escape jurisdiction. On the national level, the rule of law was a prerequisite for the well-being of a country’s people, as well as a solid basis for a global order, particularly in response to peacebuilding efforts and countries affected by conflict. He said it was not just free elections that reflected the rule of law, but also the right to free assembly, accountability, transparency and respect for minorities. He called for a high-level meeting on the rule of law, a principle that supported the Charter of United Nations.
MAZEN ADI ( Syria) said the focus on the rule of law came at a time when the United Nations itself was in need of reforming its practices. Among issues needing to be addressed were the encroachment of United Nations organs on the mandates of others and the interference of States in the internal affairs of sovereign countries. States must respect rights of other States and the rights of people under foreign occupation, as well as their right to struggle to free themselves. The principles of the peaceful settlement of disputes, non-interference in the internal affairs of others and respect for the rule of law were inviolate. They should be respected at the United Nations, and yet the achievement of the rule of law at the international level remained elusive, perhaps because of double standards that existed because international norms remained unimplemented and safeguard mechanisms were absent. What was needed now was to develop the means to assist States when they requested assistance and to deliver assistance in a way that respected cultural differences and all human rights.
CLAUDIA MARÍA VALENZUELA DÍAZ ( El Salvador) said the existence of a legal regime was not to be understood as the rule of law in operation. The rule of law was “not the law that existed, but the one that should exist”, she added. The fundamental nature of law in its formal aspect was embodied in its precision, certainty and uniformity of applicability. Treaties were one of the principle sources of international law and, in her country, they became laws of the republic once they entered into force. In a conflict between national law and the provisions of a treaty, the treaty provisions prevailed on the principal of the primacy of treaty over laws, with their binding and obligatory nature deriving from the fact that a treaty was a product of voluntary agreements between parties.
YUKIHIRO WADA ( Japan) said that the role of the International Court of Justice, the International Tribunal on the Law of the Sea and the International Law Commission were of “utmost importance” in strengthening the rule of law. As the largest financial contributor to the International Criminal Court, his country also had supported the Court through its human resources. He said he was pleased with the achievement of the codification of crimes of aggression at the Review Conference of the Rome Statute. However, he urged that efforts continue in order to avoid legal ambiguity inherent in the amendments adopted in Kampala, since by its nature, international criminal justice required rigidness in its legality.
For the promotion of the rule of law on an international level, especially in Asia and Africa, he said, the Asia-Africa Legal Consultative Organization was a “useful forum”, and his country would continue its support that body. On a regional level, Japan had been providing technical assistance throughout South-East Asia for the establishment of the rule of law.
RESUL ŞAHINOL ( Turkey) said an international order based on the rule of law was essential for peaceful coexistence and cooperation among States. He welcomed the attention to its importance by the General Assembly resolution (A/RES/64/116) of 15 January 2010. Securing the rule of law and international law constituted one of the core missions of the United Nations; it was vital for peace and security, but also instrumental for trade and development, democracy and good governance, global health and protection of the environment. But there was a need to identify the components of the rule of law more clearly and Turkey was of the opinion that the pacta sunt servanda (undertaking to comply with agreements entered into) principle, the 1969 Vienna Convention on the Law of Treaties and the United Nations Charter made international law effective.
He said respect for the rule of law was inevitably linked to the protection of human rights and fundamental freedoms, which was a fundamental responsibility of every State. The United Nations also had an important role in broadening international cooperation to help Member States implement international treaties, which remained at the heart of establishing rule of law — and thus — order between them. Strengthening the rule of law and the international level was also important to address global challenges such as climate change, terrorism and illicit trade in arms and narcotics. However, there were failures such as the lack of a comprehensive convention to combat terrorism — honouring international treaties on extradition would not leave any safe haven to perpetrators of such crimes.
NIKOLAS STÜRCHLER ( Switzerland) said his country analysed the compatibility of its national law with international law through decentralized administrative monitoring. Various ministries reviewed the compliance with international law of all draft legislative acts, and then gave their opinion during parliamentary deliberations. Thus, preventive monitoring on compliance went hand in hand with the political process of legislation, which in turn ensured transparency, concerted accompaniment of the ministries and offices responsible for legislation, flexibility, as well as the need to find viable but pragmatic solutions.
In the quest of the primacy of law, the rule of law may conflict with other legitimate values, such as a majority demanding a law that was in contradiction to international law. The complexity of those situations required that tensions between rule of law and democracy be addressed, with an exploration of what direction should be taken when citizens participated in the framing of laws. As a newcomer to that debate, Switzerland would continue to investigate the issue to ensure national compatibility with international law.
CATHERINE ADAMS ( United Kingdom) said her country was the only Member State involved with all six existing international criminal tribunals. While the tribunals had major differences, they all needed State cooperation in order to fulfil their mandates.
In that regard, she said, she welcomed the arrest yesterday in France of Callixte Mbarushimana on charges of war crimes and crimes against humanity, allegedly committed in the Democratic Republic of the Congo. She called for all States to fully cooperate in the efforts of the international criminal tribunals, which was the only way to ensure the ending of impunity by prosecuting those charged with serious crimes of international concern.
She said three tribunals relied on voluntary contributions, which were impacted by the current global economic climate. Despite even her own country’s serious financial constraints, she urged donor countries to maintain their contributions as best they could, so that “justice is not held hostage to a lack of resources”. She also noted that tribunals were expected to exercise restraint in their own budgetary demands as well. Continuing, she said that some of the tribunals were close to the end of their mandate. It was crucial, then, to establish mechanisms that would carry out residual functions, such as the prosecution of fugitive indictees, protection of witnesses and the preservation of archives.
Affirming the United Kingdom’s support for the International Court of Justice, she encouraged States that had not done so to accept its compulsory jurisdiction in order to enhance its role in the maintenance of international peace and the rule of international law.
KATARINA LALIĆ SMAJEVIĆ ( Serbia) noted a reference in the Secretary-General’s report to the advisory opinion of the International Court of Justice with regard to international law and the unilateral declaration of independence in respect of Kosovo (page 7, paragraph 25). She recalled that the opinion was 47 pages in length and said that one sentence in the report on the issue was clearly insufficient insofar as it unduly simplified the opinion and presented it in a light in which it was not meant to be understood. In the context of the Legal Committee, such simplification of a sensitive and complex issue could be counterproductive and misleading.
On the scope of the opinion, for example, she said the Court had taken a narrow and specific approach and had underlined that its advisory opinion did not deal with the legal consequences of the unilateral declaration. Further, the Court did not address the validity of the legal effects of the recognition of Kosovo by third States, but merely said the declaration did not violate general international law. Subsequently, the Court had stated that it was possible for a particular act to not be in violation of international law without necessarily constituting the exercise of a right conferred. Further, other legal considerations still under question had not run their course. Kosovo, therefore, remained a territory subject to an international regime with its final status still undetermined.
JORGE VALERO BRICEÑO ( Venezuela) said the rule of law was a fundamental component in his country’s participatory democracy. The Constitution was a product of a Constituent Assembly that had approved the new Constitution in an unprecedented process of popular consultation. A new criminal code was being discussed to replace the 100-year old code that did not reflect certain crimes of the modern day. The aim was to develop an effective code that gathered into one instrument the 100 legal instruments that currently defined offences.
Despite all the work done by the various United Nations entities to implement the rule of law at the international level, he said, the work did not translate into a real rule of law within the international community, because there was no genuinely democratic system at the United Nations. A fair and solidarity-based international order, where the interests of all prevailed, would come about through the full observance of international law by States without discrimination or privilege and with full respect for the rights of States as inscribed in the Charter.
He said the instruments of regional cooperation and integration were of great value in strengthening the rule of law, as had been affirmed on 1 October by a summit of leaders of the Union of South American Nations. The Union’s next summit on 26 November in Guyana would add a protocol to the “Constitutive Treaty” that would establish the Democratic Clause, in response to the failed coup in Ecuador.
Right of Reply
The representative of Israel said it was not surprising that a delegate from Kuwait had chosen to attack her country in the inappropriate forum of the Legal Committee. Out of respect for the important work carried out by the Committee, there would be no response to the substance of the allegations. Rather, the delegate of Kuwait should recall the maxim: “He who lives in a glass house should not throw stones.” All delegates should respect the responsibility being shouldered by the Committee. They should refrain from political attacks that had no place in the Committee.
The delegate of Kuwait said the United Nations was the forum for airing differences. The most recent demonstration of Israel’s position was the decision not to cease its expansion of settlements, in violation of international legal decisions that had directed it to do so, and that the international community had affirmed in a number of forums, such as in context of the Arab Peace Initiative. Further, the Israeli Government disregarded the rule of law by carrying out the worst mass punishments. The rule of law should particularly be respected in its humanitarian contexts.
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