Rule of Law in Disarmament Discourse

30 Jan

The UN Secretary-General (SG) maintains that rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”[i]

Generally, strong rule of law mechanisms can promote robust national constitutions which grant equality to all, dependable security and judicial institutions, transitional justice and strong civil society.[ii] “These are the norms, policies, institutions and processes that form the core of a society in which individuals feel safe and secure, where legal protection is provided for rights and entitlements, and disputes are settled peacefully and effective redress is available for harm suffered, and where all who violate the law, including the State itself, are held to account.”[iii]

The important role that the UN plays in the promotion of rule of law has been highlighted in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations. The principles highlighted in the UN Charter of maintaining international peace and security and peaceful settlement of disputes go to the heart of robust rule of law policies and mechanisms.[iv] The role of peaceful settlement of disputes within rule of law discussions was highlighted at the Sixth Committee of the General Assembly, as Global Action has previously reflected.[v] If robust institutions and policies exist that protect the security and rights of individuals, and if alternative dispute resolutions exist to peacefully resolve conflict, then modern day uprisings that rise to the level of threats to international peace and security may be limited and even eliminated.

In addition, the so-called “International Bill of Human Rights” accords to individuals a set of rights that must be respected at the international and national levels. The work of treaty bodies to implement these commitments and rights is key to strengthening strong rule of law by promoting robust national-level legislation and mechanisms that protect basic human rights obligations.

More recently, the concept of rule of law was further developed in the High Level Declaration on Rule of Law. The Declaration reinforced the rule of law as a cross-cutting issue linking peace and security, human rights and development, and likewise acknowledged “strengthening justice and security institutions that are accessible and responsive to the needs and rights of all individuals and which build trust and promote social cohesion and economic prosperity.”[vi] Additionally, the Declaration “emphasize[d] the importance of the rule of law as one of the key elements of conflict prevention, peacekeeping, conflict resolution and peacebuilding.”[vii]

With all this in mind, it is not surprising that the Secretary-General’s 2013 report on Responsibility to protect: State responsibility and prevention focused on strengthening mechanisms to prevent mass atrocity crimes. Amidst the many risk factors that can contribute to the commission of mass atrocity crimes, the SG highlighted that “the risk of genocide and other atrocity crimes can be increased by a Government’s lack of capacity to prevent these crimes and the absence of structures or institutions designed to protect the population. Risk factors include…. weak legislative protection of human rights; and weaknesses in the judiciary, national human rights institutions and the security sector.”[viii] Among the options highlighted to prevent atrocity crimes include strengthening national institutions that promote rule of law through human rights protections, as well as effective security forces.[ix]

Building on this focus, the relationship between the security sector and the rule of law is timely and important given a series of disarmament processes in the spring 2014. As Former High Representative Sergio Duarte noted in his 2008 address to the American Bar Association Section on International Law, the rule of law has contributed to disarmament by essentially providing the framework and the tools to shape, interpret and implement commitments.[x] More specifically, it provides a set of legal instruments that shape the elimination of weapons of mass destruction and constrain the flow of conventional arms.[xi]

The forthcoming Disarmament Commission (DC) has been mandated to propose recommendations to the GA on diverse issues within the disarmament agenda and is set to discuss during its April session recommendations for achieving the objective of nuclear disarmament and non-proliferation of nuclear weapons and Practical confidence-building measures in the field of conventional weapons.

While it is generally known that the DC has not been able to reach consensus in proposing recommendations since 2000, nevertheless as the opening of the Commission is fast approaching, it is timely to underline that any outcome reached could also prove imperative for strengthening rule of law, in addition to advancing the broader disarmament agenda.

Specifically in the context conventional arms, one need not think long to realize the pervasive, negative effect of weapons, especially the illegal flow of small arms and light weapons, on local communities, including disrupting feelings of safety and security; getting in the way of peaceful settlement of disputes; and interfering with the maintenance of strong and reliable security sectors.

A recent Chair’s Paper on confidence-building measures (CBMs) outlines obligations to instruments ranging from the UN Programme of Action on Small Arms and Light Weapons to the Arms Trade Treaty etc.[xii] Ideally, the objective of CBMs around conventional weapons would be to promote transparency, implementation of the obligations therein, principles of good faith, and “eliminating the causes of mistrust, fear, misunderstanding, and miscalculation with regard to conventional weapons.”[xiii]

Transparency within and between States and compliance with disarmament commitments can contribute to strengthening security institutions, responding to the needs and rights of individuals to feel safe and fully participate in society, and promoting the rule of law at the national level.

– Melina Lito


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