The Rule of Law and global challenges

By Dr. Palitha KOHONA

Having recently emerged from a world where might prevailed and the weak suffered, let us not forget that fundamentally, the rule of law serves as a critical bulwark for mediating and facilitating between and among competing and often divisive interests between the powerful and the weak and between the rich and the poor, at the national and international levels.

Any tendency to return to an age where force prevailed, in order to enforce concepts of the rule of law as understood by some must be avoided. It is also an often repeated error to expect the poor, the weak and the under-resourced to immediately be in unmistakable compliance with standards that may have taken hundreds of years to develop by their champions.

My delegation is pleased to align itself with the statement made on behalf of the Non-Aligned Movement by the delegation of Iran. My delegation also warmly welcomes the convening of this thematic debate by the President of the General Assembly and congratulates him on this timely initiative.

The rule of law acts as an invisible ameliorating force to underwrite stability, peace and coherence, to enhance and improve the quality of international coexistence and of human life itself. It is also the invisible protective shield that safeguards the weak, the meek, the poor and the powerless. As has been rightly recognised, equitable solutions to many of our global challenges, whether it be the promotion of democracy, human rights, women’s rights, sustainable development, combating organised transnational crime and terrorism, all hinge on the advancement and consolidation of the rule of law at the national and international levels.

Modern, traditional mechanisms

However, any tendency to revert to an age where force prevailed, to enforce concepts of the rule of law must be avoided. The United Nations has a critical role to play in furthering these efforts. The rule of law must also combine existing and traditional mechanisms with the modern.

For us, member states of the Organisation, the Charter is the bedrock of the international rule of law. Much of what we cherish as States and peoples emanates from this instrument. The Charter is further strengthened by over 500 multilateral treaties concluded under the auspices of the United Nations and deposited with the Secretary General covering almost all aspects of human interaction. Very little remains unaddressed. These are the products of patient balancing of interests and meticulous negotiations among States. The rules of conduct developed over the centuries and reflected in accepted custom add further substance to the international rule of law.

Judgments of international tribunals and views of eminent jurists further nourish this concept. However, when we seek to implement this vast body of rules and standards, often vague, we also need prior agreement on its details, on its content. Many aspects of the international rule of law remain vague and need further elaboration, and the United Nations can and must provide the forum to further clarify this. It is also an often repeated error to expect the poor, the weak and the under-resourced to immediately be in unmistakable compliance with standards that may have taken hundreds of years to develop by their champions. The development of the needed infrastructure and the capacity takes time, as does the appreciation of the content.

Much as we may subscribe to the international rule of law, it is also important to recognise the local circumstances when we seek to advance it at national level. The resources, the familiarity, established practices, history and a host of other factors need to be taken into account. At this stage of human development, it is unrealistic to expect all norms of behaviour to be implemented domestically in the different countries equally.

Differences in implementation

Given the vague content in many cases, there are bound to be differences in their implementation. Countries emerging from conflict, for example, often find that their domestic institutions, including democracy, have been strained and in most instances laid threadbare. It is also likely that the uncertainties of war have fostered the emergence of a range of criminal activity, organised crime, human trafficking, drug dealing, etc.

These organised criminal organisations may even become stronger than the State. In such trying circumstances, insensitive prescriptions of instantaneous solutions based on preconceptions, often by sometimes well-meaning external entities, might cause more harm than good and a loss of confidence.

One size does not fit all and foreign prescriptions however fondly embraced by external players, never really help to address deep-seated domestic ills. Mr. Von der Schullenburg articulated this concern well; what he said is a lesson to all. Surely, we need to have as our goal a perfect world but it is naive to seek immediate entry to utopia.

In the case of my country, Sri Lanka, it was our very democracy and its institutions that were under siege for over 27 years by a ruthless terrorist outfit. We must therefore, recognise the tensions and difficulties that emerge while we try to balance national security interests and the advancement of individual rights under these demanding local circumstances as we move forward.

Some countries, owing to their strong legal foundations and resource bases, may have the resilience and the capacity to restore democratic institutions quickly. They may also rapidly create their own local mechanisms to consolidate peace, encourage reconciliation and, most importantly, strengthen democratic institutions. But not all countries are equally placed. As Mr. Gueheno said, there is, therefore, a need to give countries on the road to recovery, the much needed space to launch that restorative process to arrive at an even keel.

In post-conflict contexts, peace, stability and economic advancement are critical catalysts to ensuring progress towards a smooth reconstruction and rehabilitation process and sustainable peace and reconciliation in the long-term. Sri Lanka has acknowledged that need.

Democratically elected and responsible governments pay heed to these requirements, especially when they receive decisive mandates from their people. Countries who have achieved appreciable progress on the key MDGs would seem to already have an overall enabling environment’ for achieving further economic and social progress.

External prescriptions to our political and economic problems, including addressing issues related to human rights, must necessarily have local resonance and public acceptance. Legal outcomes alone to long-standing political issues do not necessarily create a conducive atmosphere for enduring peace.

Capacity building efforts

Therefore, in such contexts, the United Nations must provide leadership in capacity building efforts to address the gaps while also factoring in local sensitivities.

The United Nations also has to create an understanding background for the involvement of external actors. Further, UN assistance to develop national legal frameworks incorporating as appropriate, international norms and standards, must ensure coordination and cooperation between national institutions, different UN entities and civil society to avoid duplication of work and waste of resources to ensure best outcomes.

Promoting and consolidating the rule of law at national level does not happen in a vacuum or in a static environment. A clinical or surgical approach to promoting this concept without the accompanying tangible guarantees for improving the social, economic and cultural quality of life, would be less meaningful and less holistic. Neither do prescriptions or analyses derived from stark right and wrong perspectives and other country experiences serve as templates for highly complex situations. Therefore, our thematic discourses at the inter-governmental level must focus more on the practice of the rule of law.

The principle of sovereign equality enshrined in the UN Charter which is intrinsic to the international rule of law must be maintained as international rules are made and implemented. It is a principle that Member States must abide by and which protects all States, especially the small and the weak.

Equally important, is the maintenance of the principle of non-interference in the internal affairs of Member States, especially in situations that do not pose a threat to international peace and security.

Exceptionally, specific circumstances may call for external involvement which should be based on the broad agreement of States. The right to implement the rule of law should not be the right of a handful nor should it be selective. Selective implementation would cast massive doubts on credibility.

Training, outreach programs

We commend the work that is done by the Office of Legal Affairs and note with appreciation the various outreach, and training programs conducted by the Office of Legal Affairs, in particular the Treaty Section. The annual treaty event is welcomed by all States.

An important aspect of the rule of law at international level is the obligation of States to implement at national level, commitments undertaken by them under treaties and other international agreements.

Compliance with treaty obligations is an area where the UN can play a meaningful role. Sri Lanka has indeed been proactive in adopting national mechanisms to comply with our commitments under the treaties to which it is a party.

Sri Lanka has always advocated the settlement of internal and international disputes by peaceful means. Even in our own case with the LTTE, a terrorist outfit that challenged the very existence of the State of Sri Lanka, we took early recourse to negotiations.

It was only after these efforts were repeatedly rebuffed, and endless and bloody provocations followed, that Sri Lanka launched a limited humanitarian rescue operation. The Government of Sri Lanka is committed to protecting the rights of all its people and fulfilling their just needs to enable them to realise their aspirations. Our willingness to engage with the United Nations to promote the rule of law based on constructive, fair, non-selective and objective assessments remains undiminished.

Dr. Palitha T.B. Kohona, Sri Lanka’s Permanent Representative to the United Nations made this statement at the UN General Assembly Thematic Debate last week.