Hon’ble justices ————————————

I was once reminded of a judge in Texas who came to the bench first thing in the morning. He said that I want to announce that I have received 15,000/- dollars from the plaintiff and 10,000/- dollars from the defendant I have given 5000/- dollars back to the plaintiff and I am now ready to hear the case on its merits.

Those things only happen in Texas not in India. Greetings to all of you and may I thank like other speakers Mrs. & Mrs. Gandhi and the students and staff of CMS Lucknow for inviting me to speak today on a topic of such great importance and concern as are raised by Article 51. It is an honour to be invited to attend this conference at what I am told to be the world’s largest single school and to speak to and meet so many invitees and guests including so many serving and retired judges of the superior courts of India.

The students of this school by all accounts have taken an extremely active and energetic role in advocating measures for achievement of world peace in particular nuclear disarmament and a veto-free democratic world-parliament. I commend your principled, responsible and forward looking activates as true citizens of the world.

It is always a great pleasure and privileges for me to visit India itself the world’s largest democracy and a country of enormous importance in world affairs. The Indian people have a deserved reputation for great civility and warm hospitality which I have been fortunate to experience at first hand on a number of occasions. I am very grateful for the friendship of so many Indians which I greatly cherish and I congratulate you all on the absolutely brilliant victory of your national cricket team over Australia in the recent test series. Although our team was beaten all Australians were in awe at the way your team of youngsters came back from complete devastation from one and a half tests to trounce our very experienced and highly successful side in what was truly for all of us a very thrilling sporting achievement.

We have gathered here in Lucknow to discuss International peace and the rule of law in the context of Article 51 of the Indian constitution. I understand that a number of seminars took place at this school in January and February this year addressing in particular paragraph (c) of the provision, which like the rest of the article does of course raise some major constitutional law issues. However the subject of this conference is Article 51 of the constitution is something of much wider significance and profundity than mere law constitutional or otherwise the introductory papers to this conference have noted that although Article 51 (c) exists there is no legally constituted would parliament for enacting international law which will be enforceable on all countries and peoples of the world however there does exist a large body of international law for which any increase in respect would certainly be welcomed by all those who aspire to a world of peace and prosperity.

One of the issues that faces us at this conference is whether to concentrate on methods of ensuring compliance with an implementation of existing norms or whether given the inadequacies of the current international legal system to make something of a fresh start. While a large body of international law exists it is not yet certain enough and its content not yet agreed to by sufficiently legitimate process involving all nations as to be capable of achieving sufficiently widespread legitimacy and effectiveness in the context of article 51(c) the notion of a world-parliament. Whatever it might seek to achieve encompasses an acknowledgement that in order to as it says foster respect for international law the source of those laws must be a global democratic body taking account of multiple national and international problems and viewpoints and seeking to address these matters in a common and global fashion.

For international laws to gain respect in the first place they must by their process of enactment or creation and by their context have a certain universal legitimacy. Laws passed by legitimate and representative world parliament would no doubt carry more force then international laws distilled from many years of partial practice of states treaties resulting from broad compromises and diffused resolutions of unrepresentative bodies of course the world possesses a world parliament in the form of the general assembly of the UN . On the central themes of my paper today is whether the best way forward would be a rationalization of the UN within its present over all framework or would preferably would be a fresh initiative from all that we have learnt from our experiences i the wake of World War II. Simply put the question is whether if the General Assembly and the Security Council of the UN cannot be made to function as an effective democratic world-government, these institutions should make way for a new and definitely constituted World Parliament. Whatever the solution it is significant that a country like India, which is the world’s largest democracy has enshrined such a provision as Article 51 in its constitution when it became an independent nation.

Even if Article 51 is only symbolic, and for reasons I would enunciate I don’t believe that it is so, its mere existence provides a clear guiding principle to national governments to direct their policies towards the achievement of the goals and conditions that the article speakes of. As your former Chief Justice Pathak the former Judge of International Court of Justice and Member of Permanent court of Arbitration, has said and I quote "Article 51 of our Constitution embodies the intention of that purpose the promotion of international security as the constitutional directive to the state is a declaration made by people of India not only to the Indian society but indeed to the people of the world." It must be readily apparent that if all nations were constitutional democracies and all had like the constitution of India such a principal being expressly included in constitutional setup the polices of these individual countries would be directed towards ensuring would be directed towards ensuring the conditions needed for a stable harmonious and prosperous world.

As you may know Australia’s own Constitution is by comparison to India’s is rather a bland and uninspiring document I have for many years advocated the inclusion of a Bill of Rights in my country’s constitutional legislative setup. Australia is, to my great shame, now the only developed democracy without a Charter of Rights and Obligations to protect its citizens from excessive use of power whether by the government or the private sector. Consequences to our indigenous peoples and other minorities are quite severe but that is another subject altogether. All I need to say for now is that Article 51 has great potential to operate as a principled example to other nations, including my own. I mentioned of course this in context of the call by students of this school to other countries to enact a similar provision to Article 51 in their constitution so that, by the form of legal osmosis if not direct application, compliance with international law and respect for it become fundamental in governance of all countries. To foster something implies much more than simply to be careful not to contradict it. If there were actual positive and actionable constitutional duty to foster respect for international law, it would need measures going beyond simple compliance. Such measures might mean anything from contributions to peace-keeping operations to taking steps to implement a system of education of officials, civil and military, in the principles of international law including the laws governing armed conflict and human rights.

There has been some judicial consideration by the Indian Supreme Court and other Indian courts on the effect and legal significance of Article 51. I have found the learning in those cases most instructive but there are other persons here today vastly more qualified than I to speak on such things. What there pronouncements have no doubt brought to minds of some commentators is whether like the General Assembly resolutions such constitutional generalities have any practical use. My answer to these observers is that we all seem always to be endeavoring to reduce the gap between the aspirational and the actual. Yet success in World Government would surely be the actualization of what people aspire to. Such provisions have internally a directive, constraining and moral force on administrators and decision makers by their very existence they guide and educate by infusion. They hopefully become embodied and applied and accounted for in decision-making and policy content formation. Directive Principles set standards for executive, legislative policy and judicial decisions of all kinds.

There is another side to international laws. In the event of an inconsistency however in Australia for e.g. Court decisions have required that non-binding international human rights treaty norms which we have ratified be taken into account in administrative decision making such that decisions which ignore them will be invalidated. Various constituted documents from national constitutions to those of important non government organizations even articles of local cricket club contain directive of the type embodied in Article 51 they have the effect of providing directional guidance and philosophical or moral content in which the positive laws themselves are interpreted. They have even greater force where there is an ambiguity in all of the moral and directly applicable provisions.

Two important international events are of special interest in this regard. Chapter II of the 1966 constitution of the Republic of South Africa the chapter containing the most far reaching bill of rights in the free world contains a provision of relevance to Article 51 (c) in section 39 (1) of the South African document it is stated that the court tribunal or forum must promote the values that underlie an open democratic society based on human dignity, equality and freedom and must I emphasize, consider International law.

Article 4 of Brazilian constitution has even more closely supported this. It says that the state shall in its International relations be guided by principles such as the prevalence of human rights self determination of peoples equal relations among states, defence of peace, peaceful conflict resolution, co-operation among peoples for progress of humanity and similar concepts. These directive principals operate in precisely the same way as Article 51.

The point of our purpose is to identify and endorse Article 51 as a whole and paragraph (c) in particular as one way of ensuring the ultimate goal of stable world development and security. As the saying goes that the whole is composed of many parts and is sometimes only as strong as each of the parts. What it implies is that if each nation were as this school has petitioned to adopt a similar domestic governing principle directed to fostering respect for international law, the world would present a picture which is a great deal less distressing and violent and a great deal more satisfying and constructive. In other, words if all nations fostered within their borders and in their foreign dealings a respect for international law the sum of the parts would be a much more stable whole. This approach wishes, a different way of thinking about today’s topic. Seminars held in this school have concluded probably correctly that the situation envisaged by Article 51(c) requires a world parliament. It is to a large extent the global nature of many issues that there be corresponding global legislation but if all nations included provision similar to Article 51 need for a centralized system would to at least some degree fall away.

Issues of national conflict will not arise or states will develop their responses in accordance with universally accepted peaceful principles and be internally constrained in the range of diversions. Of course the question would remain of what sanctions would exist to remedy actual violations. This problem does not admit an easy solution but some progress has been made already we have moves to an International criminal court to try all war crimes and crimes against humanity in place of ad hoc courts now dealing with war crimes in Rwanda and Yugoslavia or national courts in Serbia, Indonesia Cambodia and Philippines attempting to their leaders for appalling crimes against their own peoples and then there is European experience to which I will make a reference later on.

Calls for the world parliament have followed hard on the perceived emergence in the early 1990s of what is being termed as a new world order. It appears to have been assumed that this would come into being by its own force without any significant reform of world affairs. However the existing and not too successful pattern of international politics has actually remained very much the same.

There is great instability and insecurity both physical and economic and there is a distinct and widening wealth and opportunity gap between the citizens and nations of the world often comouflaged by the new rhetoric of what is now termed globalization in these three respect it must frankly be said that the alleged new world order is not really new, is not very orderly and is certainly not benefiting or even addressed to the whole world. The ideal of new world order was widely proclaimed in the beginning of 1990s as political revolution swept through Eastern Europe accompanied by remarkable progress in previously intractable conflicts in Afghanistan Cambodia, Nicaragua and a number of other places.

The reunification of Germany and collapse of Soviet Union coupled with peaceful dismantling of apartheid in South Africa where events of true human magnitude. But we have had new world orders before. The one which followed World War I found way in the infamous Versailles treaty and the League of nations did not even last 20 years. After world war II the UN charter with prescriptions for a world older that was plural and multilateral was not very different. Before a limiting world organising principle emerged the rather simplistic notion of east versus west that became known as cold war. Along the way opportunities for multilateral world participation such as envisioned in a world parliament were lost. What we had was a superpower competition with an elaborate set of delicate and implicit rules other than those of international law although in theory International law always circumscribed events and provided a framework for sufficient talk to avoid the worst nightmare.

Very occasionally the UN and other multilateral institutions were able to play a minor role in that very dry, white reason of nuclear stand off. The majority of world’s people and states meanwhile continued in world disorder while as one academic has put it they were ‘pawns drawn in and out of the orbits of the competing superpowers’ while facing the awesome challenges of decolonization and development. More than 20 million lives were lost in wars during this period and many times that number were sacrificed to poverty and new International economic order became the cry but it has yielded little. The results of cold war was that when Iraq invaded Kuwait in 1990 the system was not much more developed then It had been on paper in 1945. The response was therefore somewhat ad hoc and set a tone of US lead military responses that were stamped with order of governing world body rather than the world initiatives taken on a consensus basis. Yet a feeling of euphoria about a new would order followed a relatively effective system against Saddam Hussain in 1990 despite the fact that Saddam was left in office to persecute his own Kurds in the North and his own Shiites in the south and has continued to suppress his own people to his hard and brutal heart’s content and for that matter Kuwait has not given its people the vote so that they might decide who will govern them and still refuse to sanction driver’s licenses for their women. Thus collective security measures against agression is only a part of what humanity would regard a new order worthy of the name.

A Canadian academic has written that there exists only a thin fabric of order now. The world has the oportunity to add layers in the future. The point is if we don’t built further new orders solidity on the existing levels of new orders we will find the new order is only a power of the status quo. In addition to other points which I have referred I also doubt the newness of the new world order because it is patently obvious the old order exists and overshadows any progressive development of the last decade. A multi-level approach is needed which acknowledges the interconnection of the world problems. In a very insightful comment an American academic has written" it makes little sense to engineer new democracy in Iraq with military force, if democratically elected leaders in Brazil, Nicaragua, Chile, Poland etc. lose ground to economic stagnation and democratice strive.

The most effective as for unsteady democracy roving extent of threat not mere arms but more capital more economic training and debt forgiveness. Many substantial and important changes have affected the attitude in the last decade or so especially in the institutions of Europian community where effective multinational law making has occurred. But these changes have not altered the degrees of representation or parameters in international relationships sufficiently enough to justify classifying them as global. A genuine new order has to involve not only the present 5 permanent members of the Security Council, but also Japan, Germany and prominently India. Yet so far no effective progress has been made, inspite of lot of consensus among the world ruling elites.

In the Millennium Summit Conference 2000 known as ‘We the People’ declaration issued by about 1000 NGO’s and other civil society organisations from more than 100 countries. They spoke of building upon the work for drawing the attention of the world Governments the urgency of implementing the commitments they have made. This call comes challenging. It is one thing for world leaders conferences like this to make calls for initiative. In his view a great deal of progress will be made if the commitment is made to implement the existing treaties, conventions, resolutions that hold great promise for real achievement. It alters the choice between strengthening the existing framework of the UN for proceeding to a new basis of a type envisaged by Article 51. My printed paper examines various views about the way we may proceed. It examines whether the UN can be reformed, whether it is neccessary to go for a new proposal. Many of these proposals are extreme; some suggest the UN should have a second assembly based on the NGOs who represent the people.

There are other ideas. It has come to my notice while preparing this paper that ther is a world parliament constitutional power organisation in Colorado which started probably in 1950’s. They propose a World Parliament consisting of 3 houses, the House of the Peoples, House of the Nations and the House of the Councillors. They suggest a world executive elected and responsible to the world parliament, an administration of 30 departments an international judiciary and a military for enforcement of system. They have suggested and they have proposed 11 fundamental bill to commencement with the work. The body is not one of its own there is a French organisation called "Parlamo Mondial" also has raised the need of a world parliament, the mode of how it can be achieved and on the basis of the incumbent UN system is not workable. While those who hold these views accept the parliamentary institutions already exists and are legitimate such as European parliament and other bodies there is no international body with  world wide mandate conferring legitimacy.

I therefore conclude by referring some other fundamental that we are discussing. Many have a bias against the notion of world parliament, citing irreconcible cultural and other differences. Such differences are really beside the pit. Since a forum like a parliament exists to accommodate and encourage many points of view. The same source voices concern over establishing a Euroopean parliament and the nations of Europe are cutting the jugulars of each other in the modern history. Woodrow Wilson the visionary president of USA was ridiculed by many quarters for the passion with which he supported the view of the League of Nations.

Yet we have the UN system. The students of this school have also cited that anything is not impossible because it is difficult. Wilson may be remembered because he spoke many fundamental truths. In 1917 he reflected our hopes that a global representative system is ultimate for global peace and security of the world and liberation of the peoples. He described democracy is the right of those who submit to authority to have a voice in establishing that authority. The world must be saved by establishing democracy. Peace must be planted on the tested foundation of political liberty. Today I speak in support of the imperative need of the world countries and the people constituting them; we must submit to the problems of poverty due to the exploitation by the rich countries, to environmental degradation, to the nuclear proliferation and risk to instability of governments in boundaries and other problems which are not of their making, to have a choice in the conduct of the world affairs. Only and when they enjoy such rights, which world parliament can secure, will they have what Wodrow Wilson described in his great and serious optimism as the mission of right. Only such committed people can bring peace and safety to all nations and make the world itself at last free.

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