Briefing Note: The Rule of Law and Complementary Mandates

19 Oct

The peaceful settlement of disputes was the theme of this year’s plenary on the Rule of Law (RoL) in the Sixth Committee. As per Article 33 of Chapter 6 of the UN Charter, when there is a dispute likely to affect international peace and security, the parties involved shall try to resolve the dispute by pursuing “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”[i]

Deputy Secretary-General Jan Eliason highlighted that RoL is essential in the peaceful settlement of disputes and noted that Article 33 could help with the implementation of the Responsibility to Protect (RtoP). Reference was made throughout the plenary to the 2012 High Level Declaration on Rule of Law, which reaffirmed previous commitments on RoL and its importance in advancing peace and security, human rights and development issues.[ii]

Member states are placing emphasis on RoL within the post-2015 development agenda as well as within the current Millennium Development Goals, and highlighted links between RoL and gender equality, focusing especially on women’s participation in peace processes.

Argentina promoted the right to truth and reparations as essential elements to combat impunity, Kenya questioned the relationship between the International Criminal Court (ICC) and supporting states’ parties, the Nordic countries noted the significance of RoL in preventing mass atrocity crimes, and Liechtenstein called the recent political bias against the ICC unfair given the limitations imposed on the Court by the contemporary international legal order.

Attention was given to the International Court of Justice (ICJ) which is significant in resolving disputes among states, but only if states accept its jurisdiction. Switzerland, with the Netherlands, Uruguay, and the UK is working on a draft document to facilitate some of these jurisdiction issues. Liechtenstein reassured delegations that the ICJ’s compulsory jurisdiction is not meant to be a violation of sovereignty, but a step toward sovereign equality.

Moreover, the African Group called for equality in the application of international law to avoid double standards and called for reform of the Security Council (SC) and other international instruments. The Non-Aligned Movement (NAM) voiced its concern about SC mandates that encroach on prerogatives of the GA, as well as the SC’s willingness to take on issues already within the purview of the GA. The NAM called for more collaboration among relevant UN organs to ensure that the entire Organization is responding to emerging challenges.

In conclusion, references between RoL and issues such as gender and development are more than welcomed especially since women’s active participation in peace processes is promoted by the SC in Resolution 1325 and women’s political participation is to be discussed during the 68th session of the Third Committee.

Moreover, Article 33 is particularly relevant to the third pillar of RtoP, which places emphasis on Ch.6 of the UN Charter, before resorting to collective coercive action under Ch.7. While support for Ch.6 is welcomed and promoted by GAPW and others, one cannot help but wonder how these measures can be strengthened to ensure disputes are resolved effectively and in time-sensitive manner? Shouldn’t it be a matter of ensuring that the existing tools are effective and efficient to minimize the civilian casualties targeted as violence unfolds?

Furthermore, the separation of the SC and GA mandates is a complex issue that affects RoL, disarmament and women peace and security debates, housed in the Sixth, First and Third Committees and can also be found on the SC agenda. It is disputable where these issues are better served. Arguably, it can be significant for the SC to throw its weight behind these thematics because it reinforces their importance for international peace and security. In contrast, it is generally known that the SC’s work on thematics is not always consistent and they might be better taken up under country-specific considerations in the SC’s agenda. It has always been GAPW’s mandate to highlight complementarity between different processes and thematics because issues do not exist in a vacuum. But when it comes to process and scope of mandates, a question rises to what extent is complementarity useful to the issues and to what extent it raises the political stakes for implementation?

Finally, calls were made for follow-up meetings to the High Level meeting on RoL. We will stay involved to see how this develops, if and how these calls for separation of mandates will be reconciled and the extent to which they should be separate.

– Melina Lito, Legal Adviser on UN Affairs



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