Cross-Cutting Report No.3: Rule of Law
One noticeable trend in Security Council deliberations and actions in the last 15 years or so is the appearance of a broad new area of work collectively labelled “rule of law”. The Council held its first thematic debate on the rule of law in 2003, followed by similar debates in 2004, 2006 and 2010. The next thematic debate is expected to be held following the submission of the Secretary-General’s report on the topic to the Council, currently due in November.
The concept of the rule of law, present in domestic legal systems since they came into existence, has been used frequently in the work of the Council in various contexts, e.g., upholding international human rights standards, peacebuilding and peacekeeping. It has also been relied upon as a yardstick by those analysing—and at times criticising—the Council’s actions and/or omissions. In his 2004 report (S/2004/616), the Secretary-General made recommendations to the Council on integrating the rule of law into its resolutions and mandates. The Council responded by reaffirming its commitment to the rule of law, stating that it will consider these recommendations, as appropriate, in its deliberations. In addition, on several occasions, it has declared its commitment to an international order based on the rule of law and international law.
This report will examine two main aspects of the Council’s relations with the rule of law. First, it will gauge the degree to which the rule of law has been incorporated into its work on country-specific issues. It will also flesh out the way the rule of law has been used to allow for the incorporation of human rights-related action into the work of the Council. It will examine its resolutions and presidential statements as well as the reports of the Secretary-General. It will then focus on the incorporation of the rule of law in two of the country-specific situations on the Council’s agenda, that of Liberia and the Democratic Republic of the Congo.
The second aspect this report delves into is the degree to which the Council has been guided by the rule of law—taking into account the due process rights of those affected by Council measures—in the course of its resort to sanctions, under Chapter VII of the UN Charter. It will examine past, present and possible future Council practice in imposing sanctions mainly through the continuing evolution of the 1267 sanctions regime concerning Al-Qaida (and previously the Taliban).
In the main, the report finds that the Council has embraced the notion that establishing and improving the rule of law in conflict and post-conflict situations is an integral part of the mandates it imposes. This integration takes on different forms and contexts, such as institutional reforms, ensuring the security of civilians, and in particular improving human rights conditions as part of peacebuilding and peacekeeping efforts.
When it comes to the standards upheld by the Council in its sanctions regimes, the report finds that due to legal and political pressures, the Council is in the process of expanding the scope of due process rights it affords individuals and entities affected by its sanctions. Several Council members, in particularly some permanent members, are reluctant to introduce further adjustments into the sanctions regimes.