New York, 28 October 2010

TAKING STOCK: THE UN SECURITY COUNCIL AND THE RULE OF LAW Remarks by Ambassador Joel Hernández Legal Adviser of the Ministry of Foreign Affairs of Mexico New York, 28 October 2010 Let me first express my gratitude to the Permanent Mission of Austria and to the Rule of Law Unit for inviting me to this important and timely event. I would like to personally thank Ambassadors Thomas Mayr-Harting and Helmut Tichy, as well as the Deputy Secretary General, Madam Asha-Rose Migiro. Mexico attaches great importance to the Final Report and Recommendations from the Austrian Initiative on the Security Council and the rule of law of 2008 1. It has been undoubtedly a very important contribution to the strengthening of international law and the promotion of the rule of law in and by the Security Council. My country participated actively, through my dear friend Ambassador Juan Manuel Gómez Robledo, during the discussions that led to the Final Report. This subject is one among many, but definitely one of the most important ones that demonstrate the strong partnership between Austria and Mexico. It is indeed a great pleasure for me to participate in this stock-taking exercise together with such distinguished publicists as Professors Alain Pellet and Simon Chesterman. I shall focus my remarks on two questions suggested in the concept note as key issues for discussion. But let me first make some general remarks on the rule of law and the Security Council, seen from the perspective of a nonpermanent Member, and, I might add, from the Office of the Legal Adviser in Mexico City. 1 Presented at the UN on 7 April 2008 and annexed as A/63/69 S/2008/270. 1

There are two fundamental issues underlying the subject of the Security Council and the rule of law. On the one hand, there is the idea of strengthening international law by the Council. On the occasion of the rule of law debate in 2006, held under the Danish Presidency of the Council, former President of the International Court of Justice, Dame Rosalyn Higgins, explained this eloquently as the idea of embedding international law into many of the contemporary activities overseen by the Security Council ( ) and increasing the level of compliance with the rules of international law. On the other hand, the Security Council and the rule of law entails the notion that, while fulfilling its tasks, the Council itself must comply with international law, i.e. it must adhere to the rule of law. These two notions can be stated with the very basic proposition that those who promote respect of the law must themselves comply with the law. This is not only an imperative of ethics, but the very basic premise of the rule of law in its most fundamental conception, as it is informed by the ideals of a responsible and legitimate exercise of power, supremacy of and equality before the law. Furthermore, increasing compliance and complying increasingly with international law are mutually reinforcing objectives. In other words, the promotion of and adherence to the rule of law are both indispensable in order for the Council to fulfill its primary responsibility. This dual understanding is at the heart of the Final Report we are discussing today, and was made very clear throughout its 17 recommendations. It is also here where we see its great value as a useful guide for the Council and its members. 2

Turning now to the fate these recommendations have experienced over the past two years and a half, there are, of course, not always clear-cut answers. I will address two questions which, according to the dual perspective referred to above, are strictly linked to each other, and do also relate closely to various other questions. How has the attention of the Security Council to the rule of law evolved with respect to matters on its agenda? And: To what extent has the Council taken steps to ensure adherence to the rule of law in its own actions? These questions are related to various recommendations, most notably with the first one according to which the Council should emphasize the importance of the rule of law in dealing with matters on its agenda. It is further clarified that this embraces reference to upholding and promoting international law, and ensuring that its own decisions are firmly rooted in that body of law. Let me begin with the promotion for the respect of the rule of law. Here, the Council has continued and reaffirmed its active trend, especially in the context of States facing problems of political stability. Some examples include: o The inter-connected nature of security concerns, national reconciliation, rule of law and institutional reform has been recognized by the Counci in its recent resolutions on Haiti (S/RES/1892 (2009) & S/RES/1944 (2010). o Regarding the situation in Somalia, another set of resolutions, from 1838 (2008) to 1918 (2010), clearly stresses the need to strengthen State institutions, economic and social development and respect for human rights and the rule of law in order to create the necessary 3

conditions for a full eradication of piracy and armed robbery at sea off the coast of Somalia. o The harmful consequences of terrorist activities by Al-Qaida and the Taliban to the rule of law, concretely to the governmental capacities to ensure rule of law and human rights, has been expressed by the Council in the case of Afghanistan (S/RES/1943 2010). It can be said that all these cases show the Council s understanding that durable peace cannot be achieved if it solely concentrates on security aspects. The strengthening of national rule of law institutions, judicial and otherwise, is equally important. This being said, it is true that the recognition of this relationship is not in itself sufficient in order to effectively promote the rule of law in national societies. In the case of piracy and armed robbery at sea, for example, much will depend on how the Council will finally address the issue of the prosecution and imprisonment of those responsible for such crimes. Clear progress can also be observed in relation to the series of Security Council resolutions urging the parties to an armed conflict to comply with international humanitarian law. A whole set of resolutions on Congo (DRC) have put the emphasis on the connection between security, protection of civilians, respect for human rights and international humanitarian law and the respect for the rule of law. Legal protection of vulnerable groups, such as women and children, during armed conflict has experienced a very positive evolution in recent years. For those reasons, Mexico has underlined the role of the Council as the guarantor of compliance with IHL. 4

In all these cases of post-conflict societies and of States facing problems of political stability, it is clearly not sufficient for the Council to estipulate in its mandates a central role for strategies aimed at restoring the rule of law. Better coordination between UN agencies involved in rule of law activities is essential in order to translate these efforts into coherent and efficient results. If Council mandated rule of law activities are to be successful, the Security Council should also pay more attention to local needs and realities. They need to be considered throughout the fulfillment of the said mandates, in each and every case, or to use the Council s language, on a case-by-case basis. The merit and usefulness of the concept of local ownership relies in its open texture, closed definitions must be avoided. Unfortunately, the picture is quite different in regard to ensuring that the Council s own decisions are firmly rooted in international law. The importance of this recommendation is widely shared by Mexico. As we have stated it in several occasions, many disputes on the Council s agenda are claims about perceived legal rights, i.e. they stem from differences concerning the interpretation of international law. If as has often occurred such disputes give rise to a situation that constitutes a threat or a breach of the peace or an act of aggression, it is logical to suppose that the determination made by the Council pursuant to Article 39 of the Charter and the actions that it decides to take would be grounded in and motivated by international law. It is only fair to note, though, that in the past two years there have been some improvements in this regard. Recent resolutions on non-proliferation point in this direction. (e.g. Resolutions 1874 of 2009 and 1929 of 2010). Nevertheless, much remains to be done. 5

When we ask to what extent has the Council taken steps to ensure adherence to the rule of law in its own actions, we are almost obliged to review the issue of sanctions. Targeted sanctions, especially in regard to the Al-Qaida and Taliban sanctions regime, have led to other landmark studies related to the Security Council and the rule of law, such as the Watson Institute papers 2 or the study by Prof. Bardo Fassbender 3. May I take this opportunity to stress that studies like the one we are commenting today are highly relevant initiatives which do make a difference in real Council life. Recommendation 15 of the Report establishes the conditions that should be met, as a minimum, so that we can truly speak of fair and clear procedures. These go back to previous recommendations by the former Legal Council of the UN, Ambassador Nicolas Michel, and have been also highlighted in other studies, like the one elaborated by Prof. Fassbender, I mentioned before. More importantly, they have been also highlighted in Court decisions, most notably by the European Court of Justice s judgment in the Kadi I case, and more recently by the General Court of the European Union on the so-called Kade II case. We can speak thus of widely accepted criteria. Now, have they all been met? One has to admit that the right to an effective review remains a fundamental challenge to the sanctions regimes of the Council. This has been already acknowledged in at least two obiter dicta; one in the case I just mentioned before the General Court of the European Union and the other one in the case Ahmed and others before the Supreme Court of the UK. And it is highly probable that this judicial tendency will continue. 2 See, e.g., Addressing Challenges to targeted Sanctions, An Up-Date of the Watson Report, October 2009, available at: http://watsoninstitute.org/pub/2009_10_targeted_sanctions.pdf. 3 Bardo Fassbender, Targeted Sanctions and Due Process, The responsibility of the UN Security Council to ensure that fair and clear procedures are made available to individuals and entities targeted with sanctions under Chapter VII of the UN Charter, Study commissioned by the United Nations Office of Legal Affairs, 20 March 2006. 6

However, I would like to focus on the very significant improvements, which the 1267 regime has achieved over the past two years under the very able and highly committed Austrian chairmanship. The review prescribed in resolution 1822, which was recently concluded, is a case in point. By demonstrating that the Committee has improved its working methods in practice, it has made a major contribution to transparency and fairness. Most notably, the establishment of the Ombudsperson in resolution 1904 is one of the most important historical achievements in regard to the adherence of the Security Council to the rule of law. It is true that the Ombudsperson s powers have to be strengthened and the de-listing procedure further improved in order to fully satisfy the requirements of due process or fair and clear procedures. Mexico strongly believes that we are on the right path but that this path is still under construction. However, we should not jump into conclusions, especially if we consider the short time in office of Ms. Kimberly Prost. Mexico, and I personally, are extremely satisfied with her appointment and we have every confidence in her abilities and leadership to make the most out of the new procedures. Furthermore, the creation of the Ombudsperson represents, arguably, a paradigm shift in the Security Council. Through its establishment the Council has finally recognized that engaging in decisions which directly affect rights and obligations of individuals, leads, unavoidable, to accountability, transparency and voice. Here we are reminded of evolutions in national administrative law, where a catch-up game, to use the words of Prof. Martin Shapiro, takes place, in which previously granted discretions are brought under rules 4. 4 Martin Shapiro, The Institutionalization of European Administrative Space, available at: http://www.irle.berkeley.edu/culture/papers/shapiro.pdf. 7

Recommendations 11 and 12 of the Report are highly interesting too in regard to the Council s adherence to the rule of law. They deal with the socalled legislative powers of the Council. In my view, these recommendations are today as valid as they were two years ago and we have to remain vigilant concerning their instrumentation. Sunset clauses would definitely contribute significantly to a more legitimate use of Chapter VII powers by the Council. We have to be very careful about perpetuating the exception. Legislative resolutions of the Council have also contributed to a proliferation of legal obligations of member States. We have to be aware that these obligations are followed consistently with other legal regimes, equally valid and important. The mechanisms of the Council in charge of monitoring the implementation by member States of legislative resolutions, most notably the groups of experts of the subsidiary organs on counter-terrorism, have to take this duly into account. Member States have to bear this in mind too and insist on a coherent approach to international law based on the rule of law, both at the international and at the national levels. Otherwise we are risking fragmentation at the international level and poor compliance at the national one. I would also insist in this regard that the said mechanisms must enhance their transparency towards the broader membership of the UN. Much has been done already, but more is still needed. Let me conclude by referring to the broad powers conferred to the Council by the Charter, particularly to its wide discretion to make determinations under Article 39. The Council is bound by the Charter (Art. 24, 2), and a proper interpretation of the latter s purposes and principles establish rather clear limitations to the 8

former s actions. Jus cogens is another important source of containment. However, as the Report very well acknowledges, formal reviewing processes for its decisions are, at least in practice, still missing. Here the Report makes a simple and wise advise, namely that the Council is most legitimate and effective when it submits itself to the rule of law, adding that the most important limit on the Council is self-restraint. In today s state of global affairs, where the only certainty is uncertainty (as has been rightly commented, the only thing we know for sure in the post Cold War era is that the Cold War is over), prudence must be the major imperative for the Security Council. Otherwise, the efficiency paradigm could soon turn into a fallacy, eroding the legitimacy on which the Council depends ever more. Thank you very much for your attention. 9