The Charter Mandate
The Charter envisages that the United Nations willtake action to enhance respect for international law. The preamble of theCharter thus calls on Member States "to establish conditions under whichjustice and respect for the obligations arising from treaties and othersources of international law can be maintained". An important aim of theUnited Nations is, therefore, to bring about the implementation both oftreaties and of rules of customary international law.
Nature of the Action Plan
This Plan identifies actions which Secretariat units,Programmes, Funds and Agencies might take in order to promote the betterimplementation of international law.
For the most part, these actions:
Use and buildupon existing mechanisms and practices; and
Engage andmake use of the resources of civil society, in particular, of NGOs, giventheir ever more important role in the development and implementation ofinternational law.
The Plan is action oriented and is meant to be aworking tool that can be used in all sectors of the Organization. All actionsare indicated in italics. It goes without saying that some of these actionsare already being taken in certain parts of the Organization.
B. Suggested Actions
1. Encouraging Participationin Multilateral Treaties
This Action Plan is directed towards promoting complianceby States with the treaties they have ratified. At the same time, it isbeyond dispute that measures to promote wider and faster participationin multilateral treaties will both complement and reinforce a programmethat is aimed at ensuring greater compliance with those same treaties (1).
Many multilateral treaties of potential global applicationremain unsigned by a large number of States or, though signed, unratified.The objective of creating a global framework of binding norms in the areasconcerned is consequently frustrated, particularly in those cases in whichthe treaties are prevented from entering into force.
A) The Secretary-General may wish to use his uniqueposition to advocate the signature and ratification of treaties. The followingsuggestions are made with a view to enhancing the effectiveness of suchadvocacy:
The Secretary-Generalmay wish to make it a standard practice to use the opportunities providedby bilateral contacts, such as country visits and meetings with Heads ofState or Government, as well as multilateral meetings and statements tothe press, to advocate signature and ratification of these key treaties;
Reportsof the Secretary-General to political organs might also be used for thispurpose;
The Secretary-Generalmay, as and when appropriate, write directly to Heads of State or Governmentencouraging signature and ratification of the selected treaties;
Targetaudiences of the Secretary-General's advocacy should also include non-Stateactors, NGOs and other groups in civil society with a particular interestin specific treaties, with a view to enlisting their support.
The assistanceof the secretariats of the regional commissions, treaty secretariats andthe secretariats of the specialized agencies should be sought for thiscampaign, as well as the assistance of Regional Centres, UNICs and UNDPcountry teams;
The assistanceof particular NGOs working in relevant fields might be sought to encourageGovernments to sign and ratify the treaties concerned;
Small,high-level missions might be sent to capitals to contact government officialswith direct responsibility for the signature and ratification of the selectedtreaties;
A solemnceremony might be organized in connection with the Millenium Summit toencourage visiting dignitaries to sign the treaties or, if possible, deposittheir instruments of ratification or accession. In this connection:
The TreatySection of OLA should take special measures to provide technical assistanceto Permanent Missions regarding the completion of the necessary treatyformalities;
A bookmight be produced for distribution at the Summit, containing a list ofconventions deposited with the Secretary-General highlighting the treatiesthat are the focus of the campaign, with a brief introduction to each treatywritten by an internationally recognised personality closely associatedwith the treaties concerned explaining its importance. (2)
2. Assisting States to Prepare Necessary ImplementingLegislation
In many national legal systems, at least certainof the rules of international law that are binding upon the State automaticallybecome part of national law without the necessity for any further actionon the part of State institutions. In most systems, though, further institutionalaction is needed in order to create new national laws which will ensurethat the State's international obligations are implemented.
Many States have very limited resources or expertiseat their disposal for the purpose of preparing legislation to implementtheir international obligations. Situations may consequently arise in whicha State's international obligations are not properly implemented, or areeven not implemented at all, with the result that individuals and corporationsare not accorded the rights and benefits for which international law provides.(3)
To address this problem, a number of Secretariatunits, Programmes, Funds and Agencies provide assistance to Governmentsin drafting or reviewing national laws to implement their internationalobligations. These measures include:
The International Trade Law Branch(ITLB) of OLA runs seminars and briefing sessions on UNCITRAL conventionsfor government officials and for legislators.
An NGO, with the assistance of OLA,recently organized an informal briefing on the implementation of the RomeStatute of the ICC for delegations attending the ICC Preparatory Commission.
The International Trade Law Branch(ITLB) of OLA provides services by technical consultants to particularStates that wish to implement specific uniform commercial laws or conventions,in particular by reviewing draft legislation which has been prepared bynational authorities or by providing those authorities with assistancein the actual preparation of their drafts.
UNDP organizes the provision of technicalassistance to States in the drafting of national laws regulating judicialadministration, legal procedure and access to justice.
UNHCR provides technical assistanceto States in preparing legislation to implement the 1951 Geneva Conventionand its 1967 Protocol. OHCHR and UNICEF also provide technical assistanceof this type within the particular areas of their mandates.
In furtheranceof this objective, the Secretariat should take stock of the experienceof those units that are already involved in providing Governments withassistance of this type with a view to identifying those approaches whichhave proved most efficacious and cost-effective ("lessons learned");
The Secretariatunits, Programmes, Funds and Agencies which provide technical assistancein the preparation of legislation to implement international obligationsshould better coordinate their activities with a view to maximizing theireffectiveness and avoiding duplication.(5)In particular:
The programmes run by UNDP, OHCHR,ODCCP, UNV, UNOPS, UNICEF, ILO and UNCTAD on access to justice and goodgovernance may benefit if more coordination could be achieved.
The International Trade Law Branch(ITLB) of OLA has taken steps to ensure that UNCITRAL texts are taken intoaccount in programmes of technical legal assistance that are run by developmentagencies.
The InternationalLaw homepage on the UN Website should include a new sub-site entitled "TechnicalAssistance to States", clearly identifying all UN offices that provideassistance to Governments in the preparation of legislation to implementinternational obligations; (7)
Whereverfeasible, websites and sub-sites maintained by Secretariat units, Funds,Programmes and Agencies should include, amongst the information on anytreaties that are featured on the site, the texts of relevant implementinglegislation adopted by States and reported to the Secretariat;
The Secretariat,Programmes, Funds and Agencies, should, where they are not themselves ina position to provide technical assistance, explore the possibility ofenlisting the assistance of relevant IGOs or NGOs, as appropriate.
3. Training of Judges and Practising Lawyers
Just because a national legal system contains ruleswhich are designed to ensure the implementation of the State's obligationsunder international law does not mean that those obligations will be compliedwith. Those rules of national law need themselves to be observed. In particular,they need to be implemented in a manner that is consistent with the State'sinternational obligations.
For this to occur, it is important that those whoadminister and apply the law - particularly, the judiciary - and thosewho give advice on the application of the law - typically, lawyers - arefamiliar with international law and know how to research, understand andwork in that field.
Judges and lawyers at the national level frequentlydisplay a lack of familiarity with international law, together with a lackof facility in researching, interpreting and applying it. As a result,international law is often misapplied and is sometimes not applied at all.
It is, therefore, highly desirable that practisinglawyers and judges receive training in international law, so that theyknow how to research and interpret international law when the occasiondemands and so ensure that international law is properly applied.
Advocatethe adoption of a qualifying requirement for the judiciary and for practisinglawyers that they have taken a course in international law during theirprofessional training; and
In jurisdictionswhere there is a requirement that practitioners undertake continuing legaleducation, encourage recognition of courses in international law as fulfillingapplicable requirements in that regard;
Invite(from a provided list) key-note speakers from the Organization;
In thosecases in which the Organization is itself engaged in the training of thenational judiciary, basic training in international law should be builtinto the programmes concerned;
It is assumed that this is donein missions, such as MICIVIH, which run training programmes for lawyersand the judiciary in the rule of law, in UNDP programmes to promote accessto justice and good governance and in OHCHR's technical assistance programmesand field operations.
The briefings which are organizedand run for judges and arbitrators by the International Trade Law Branch(ITLB) of OLA on the implementation of UNCITRAL texts which have been incorporatedinto national legislation.
The training programmes which UNHCRruns for members of national refugee commissions in the implementationof refugee conventions which have been incorporated into national law.
The Organization currently runs a considerable numberof training programmes in specific aspects of international law. Theseinclude the training of law-enforcement officers in aspects of human rightsconcerning the rights of suspects, the training of prison officers in thehuman rights of detainees, the training of social workers in aspects ofhuman rights concerning juvenile justice and the training of immigrationofficers in refugee law.
As the Organization strengthens its training activities,it becomes increasingly important to adopt a co-ordinated approach.
In order to avoid duplication, mixed messages andconfusion on the relevance of the different bodies of international law,training programmes must be devised, organised and run in such a way asto ensure that those involved in the application of law at the nationallevel understand their obligations under the full range of the variousdomains of international law, including Human Rights Law, InternationalHumanitarian Law and International Refugee Law.
Coordination is also essential in order to assurethat the particular roles of such institutions as the International Committeeof the Red Cross and the High Commissioner for Refugees are respected andstrengthened.
The Secretariat should take steps to encouragethe coordination of training activities for those involved in the applicationof the law at the national level. To this end:
The Secretariatmight, through appropriate channels, request UN Resident Co-ordinatorsand Country Teams in regions of internal tension or conflict to designjoint strategies and programmes for the training of those involved in theapplication of law at the national level, including, where appropriate,relevant non-State actors.
It is desirable that lawyers and administratorsbe aware of international law and have some familiarity with its basicconcepts and methodology. While the training courses referred to underthe preceding headings may increase awareness of international law amongthese groups, a longer term strategy is needed to ensure that internationallaw is more widely and better known.
International law is not taught in alllaw schools. Where it is taught, it is usually not a "core", or compulsory,subject of study - though the law of human rights in some form often is.The subject is generally not taught in courses in public administrationor in business schools.
The Secretariat, Programmes, Funds andAgencies should take steps to encourage the wider teaching of internationallaw at universities and at other institutions of higher education, in lawcourses and in courses on international relations, business and publicadministration. To this end:
TheSecretariat, with the assistance of experts and relevant institutions,might devise and encourage the adoption of a framework model curriculumfor such courses;
TheSecretariat might commission, coordinate or arrange for the productionof a textbook or of teaching materials for use together with that curriculum(10);
TheSecretariat might consider creating a forum on the International Law websitefor the exchange of ideas among educators on the better teaching of internationallaw;
DPI,in consultation with OLA, might devise a campaign to raise consciousnessamong educators and students of the importance of international law.
6. Informing the General Public aboutInternational Law and about Means of Recourse Against Violations of thisLaw
The best guarantee of the application ofinternational law is a general public which is informed about at leastthe most significant of the rules of international law that have been developedfor their benefit. The general public should, therefore, have readily availableto it the necessary information to be able to advocate and secure its properimplementation. Electronic communications are increasingly facilitatingthe realisation of this objective.
The UN maintains a large number of webpagescontaining information on treaties and other international legal matters.They may not be sufficiently interlinked and may not contain links to thesites of the specialized agencies or of other UN-system organizations.In general, they do not contain links to outside, non-UN sources.
Tothe extent possible, the Organization's websites should aim to providepertinent information and assistance to those who wish to know how to takesteps towards securing the rights and benefits for which internationallaw provides or obtaining redress for violations of those rights or denialof those benefits;
Theinternational law homepage on the UN Website should include ;
A new sub-site entitled "Proceedings of meetings and conferences", whichwould post major presentations or reports presented at conferences or meetingsorganized by the UN Secretariat, Programmes, Funds and Agencies;
Seminarsand briefing sessions on specific treaties might be organized and run forthe private sector, where appropriate.
7. Encouraging Acceptance of Dispute-ResolutionMechanisms
Under general international law, thereis no duty upon States to refer disputes to any particular method of settlement,in particular, to settlement by a third party or body. Some treaties providefor a compulsory third-party dispute settlement mechanism. However, inmany cases, States parties are only bound to accept resolution of theirdisputes through that method if, in addition to ratifying the treaty, theyhave specifically accepted the obligation to resolve their disputes inthat way. In other cases, they must ratify a separate protocol in orderto be so bound.
Treaty provisions of this type are oftennot accepted and such protocols not ratified. If disputes arise concerningthe application and implementation of the treaty, States are consequentlyable to avoid impartial third-party evaluation of their conduct in termsof the applicable rules of international law. Those rules may then failto be implemented.
The Secretariat should initiate a sustainedcampaign to widen the circle of States accepting the competence of compulsorythird-party dispute-settlement mechanisms. To this end:
Thecampaign should be conducted along the lines outlined with regard to participationin multilateral treaties (see Section 1 of thisPlan).
8. Education of United Nations Staff
If the Secretariat, Programmes, Funds andAgencies are to take effective steps to promote the better applicationof international law, it is essential that staff members be aware of internationallaw and appreciate its central place in the work of the Organization.
No general programme currently exists topromote awareness and understanding of international law among staff members.Such measures are undertaken by certain Secretariat units only. Such awarenessseems to be limited to staff directly involved in the application of internationallaw in their activities.
The particular level of knowledge of international law and pertinent legalinstruments that is required or desirable for those working in specificfields of the Organization;
Trainingcourses in international law should be developed and run as part of thestaff development programme to ensure that staff members possess and maintainthe relevant level of knowledge of international law and are kept up todate with pertinent developments in their fields. (Law schools and privatelaw firms might be approached with a view to their providing such courseson a pro bono basis.)
9. Advocacy for Better Implementationof International Law
A) The Secretary-General might wishto make use of his unique position to advocate the better implementationor application of international law. In order to enhance the effectivenessof this advocacy:
Wheneverpossible and appropriate, implementation of relevant obligations underinternational law should be made an issue in UN-brokered peace talks. Wherefeasible, mechanisms for monitoring compliance should be included in pertinentpeace agreements;
Ensuringrespect for international law, in particular for human rights and humanitarianlaw, should be an important element in peace-keeping operations and should,whenever possible and appropriate, be included in their mandates;
Whereadvocacy is undertaken in respect of concrete cases of non-compliance,reference should be made to the specific obligation respect for which isin question;
Advocacyshould be undertaken in response, and with reference, to cases of actualor anticipated non-compliance, as well as in the abstract;
BesidesGovernments, target audiences should include, where relevant, non-Stateactors, including non-State parties to armed conflicts, and the privatesector;
Advocacyshould be consistent and should be seen to be principled and not to favouror disfavour particular States or groups of States.
C) Others could assist in this campaign.In particular:
To draw the attention of the Secretariat and of Member States to casesof (anticipated) non-compliance;
To lobby Governments (and factions with de facto power) to implement theirobligations under treaties;
To assist affected individuals and groups in taking legal action to securecompliance;
Useful models are providedby the cooperation that exists between NGOs and the Organization's humanrights treaty bodies and the Commission on Human Rights.
Relevant rights are largelyset out in the recently adopted Declaration on the Right and Responsibilityof Individuals, Groups and Organs of Society to Promote and Protect UniversallyRecognized Human Rights and Fundamental Freedoms, annexed to General Assemblyresolution 53/144 of 9 December 1998.
TheSecretariat, Funds, Programmes and Agencies should, wherever possible,encourage States to incorporate appropriate transparency and monitoringmechanisms into treaty texts that they are negotiating.
|OHCHRhas already instituted a campaign, with the Secretary-General's support,aimed at achieving universal participation in the six main human rightstreaties by 2003.|
|Forexample, Jody Williams on the Ottawa Convention and Nelson Mandela on theConvention against Racial Discrimination.|
This would initiative would requirefunding.
|The adoptionof national laws aimed at implementing a treaty is, in many national legalsystems, a step which is taken before proceeding to ratify that treaty.The inability of a State to allocate appropriate resources to preparingthe necessary implementing legislation may consequently prevent that Statefrom ever proceeding to ratify a treaty. Action by the Secretariat to assistStates in preparing the legislation needed to implement treaties will thereforecontribute to promoting the faster and more widespread ratification ofthose treaties, as well as securing their better implementation.|
|ForSecretariat units themselves to run seminars would require a mandate, ifone does not already exist, together with funding. Programme managers shouldpay attention to this in the elaboration of the next medium-term plan.|
|OHCHRhas already conducted a review of UN technical assistance programmes inthe field of human rights, further to the decision in the Secretary-General'sreform programme for the Organization.|
|This wouldrequire a mandate, together with funding, where none currently exists.Programme managers should pay attention to this in the elaboration of thenext medium-term plan.|
|This wouldrequire the allocation of additional resources.|
|Such as theAfrican Society of International Law, the American Bar Association (ABA),the American Society of International law (ASIL), the British Instituteof International and Comparative Law (BIICL), the Canadian Society of InternationalLaw, the International Bar Association (IBA) and the Sociétéfrançaise pour le droit international (SFDI).|
|This wouldrequire a mandate, together with funding, where none currently exists.|
|The latterwould require a mandate and funding.|
|This wouldrequire a short-term allocation of additional resources.|