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THE
NEED FOR AN ENFORCEABLE INTERNATIONAL
LAW TO SAFEGUARD THE PRESENT AND THE UNBORN CHILDREN |
[paper
submitted to the - 4th INTERNATIONAL CONFERENCE OF CHIEF JUSTICES
OF THE WORLD at LUCKNOW, INDIA - 12th - 14th DECEMBER, 2003] |
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| 1. PRELUDE
Why are children urging for the preparation and adoption
of an ENFORCEABLE INTERNATIONAL INSTRUMENT to SAFEGUARD:
- THE PRESENT, AND
- THE UNBORN CHILDREN?
Are there no legal documents adopted by the UN ? won't we
witness the presence of Regional Agreements pertaining to
the rights of children? |
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| When
one schemes through the UN charter; General Assembly
Resolutions; UN and Regional covenants, Declarations, Recommendations,
Principles, Guidelines and standard rules; so sweet and pleasing
reflections are perceived in relation to :
"International Human Rights Standard1
provided and recognized by the International Community. The
cornerstone of the aforementioned Instruments is the ... "recognition
of the inherent dignity and of the equal and inalienable rights
of all members of the human family as the foundation of freedom,
justice and peace in the World.2
...
As a compliment, what a
reasonable man ideally longs for is also enshrined in the
American Declaration of the Rights and Duties of man via the
statement.
"in as much as spiritual
development is the supreme end of human existence and the
highest expression thereof, it is the duty of man to serve
that end with all his strength and resources."3
In the same manner, through
it's specific deeds, the World society has never bypassed
dwelling on the rights of children; it suffices to stipulate
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United
Nations Standard, Minimum Rules for the Administration of
Juvenile Justice ("The Beijing Rules"), Declaration
of the Rights of the child; Declaration on the protection
of women and children in emergency and Armed conflict;4
European convention on the legal status of children born out
of wedlock; European convention on the exercise of children's
rights; African charter on the rights and welfare of the child;5
and convention on the rights of the children.
On the other hand, in the
face of these legal Instruments, all earthly satanic oddities,
cruelties and unimaginable criminal acts against children
have been/ are being observed in a cob-webbed manner, literally
on a daily basis, not only in specific areas, but Globally.
Nevertheless. UN members pledge to undertake the necessary
steps in whole for the implementation of Regional and International
Agreements which are directed to safeguarding children's rights.
But the pledge has never been adequately implemented.
Though the case be such,
leaving behind the usual and common demands, children have
commenced striving to attain some other goals through their
newly coined SLOGAN: |
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| 1
Human Rights, A Compilation of International Instruments,
United Nations, New York; 1988 p. VIII.
2 Ibid: P. 1 (The International Bill of Human
Rights)
3 Human Rights, A Compilation of International
Instruments, Volume II, Regional Instrumental United Nations,
New York and Geneva, 1997, P. 5
4 Ibid, P. V-VI.
5 Ibid, P. IV-V
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THE
NEED FOR ENFORCEABLE INTERNATIONAL LAW
TO SAFEGUARD THE PRESENT AND THE UNBORN CHILDREN
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But WHAT
IS IT ? is it an idea de novo ? Are WORLD CHILDREN telling
the International community : |
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'GONE
ARE THE DAYS OF CHIVALRY'! |
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| 2. EXISTENCE : A
PREREQUISITE FOR THE REALIZATION OF RIGHTS. |
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| 2.1)
THE DANGERS FACED and THE SACRIFICES PAID
There should be peace and tranquillity in
the world to seek rights and demand the realization of same,
on a National as well as Global levels. The world community
is too familiar both with peace and full-scale world wars;
and it is certain that the taste of each would not be uncommon.
The emperor of Germany, KAISER WILHELM
II triggered the first world war but at the end of world war
I in 1918, Europe had gained nothing.
Axiomatically, the death toll was so high; Ten million soldiers
were killed; Twenty million wounded. In addition, thousands
of civilians perished. The war cost was 186 billion dollars.
In order to avert further war, and promote peace and collective
security, the statesmen who assembled at Paris came to terms
in the establishment of a League of Nations, as a part of
the 1919 Versailles Treaty.6
The League of Nations failed in its major
function - the preservation of peace - constituted a tragedy
for Europe and the world7
The rise of totalitarian regimes in Italy and Germany,8
again precipitated the II world war, dividing the International
community into Axis and Allied powers. The loss in human lives
and properly was so shocking; battle deaths exceeded seventeen
million; civilian death ten million.9
These are very few among the saddening events
in the history of man which the world children came to realize.
Still, they are witnessing civil strifes, wars, clashes, terrorists
acts, and nuclear - strike threats.
The past could be history, and is read from written materials;
the present could cast a shadow as to what might happen in
the future. Therefore, the frightened children of the world
are right in demanding an enforceable International Law for
the present and future Global peace and security.
... And finally, the united pressure of world opinion in
support of human rights will in time help to reduce some of
the causes of war among the peoples of the world.10
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6 Ibid,
7 Ibid, P. 5
8 Ibid, P. VI
9 Ibid, P. 42
10 Coyio, David Cushman, circe at note 13,
P. IX-X.
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2.2)
THREATS TO MANKIND: CHILDREN'S NEW ISSUE
Receptors of our Globe as
they are, the future belongs to children; so- "THE BEST"
should go to them - as goes the Ethiopian proverb. Incidentally,
it concurs with what is enshrined in the convention on the
rights of the child.11
The convention does not
dwell on what had happened and is happening to children, but,
simply - envisages and enumerates those rights which should
be observed or realized and protected. In its preamble, the
main points emphasized as rationales behind the adoption of
the convention strictly pertain to the physical and mental
nature of the child.
This being the case, it wouldn't have been strange if world
children come up with ideas, slogans and numerous requests
for the change of the convention on which their rights hinge.
But, Global reality is telling them something beyond their
usual and common demands.
International Law could
not become of help in halting the proliferation and stockpile
of weapons of mass liquidation (Nuclear, Biological and Chemical).
Nations are still striving to secretly acquire these dangerous
weapons.
At present there are nearly
36,000 Nuclear bombs in the world12
this gruesome accumulation of the most dangerous weapons,
obviously is a threat to the very existence of humanity, and
frightens the two billion children of the Globe today.
For instance, during the
2nd world war, a single atomic bomb dropped on Hiroshima,
on August 6, 1945, destroyed three fifths of the city. On
August 9, a second Atomic bomb leveled Nagasaki.
The two world wars had done
great damages to humanity, not only in terms of loss of lives
and property that are usually dealt with, but entailed the
retrogression and stagnation of human civilization too. So,
given the huge stockpile of weapons of mass annihilation,
the current Global conflicts - then pushed the students of
City Montessori (CMS) of India to lodge an appeal to the Honorable
world Judiciary:
"WE WANT A UNITED AND PEACEFUL WORLD AND NOT
A LEGACY OF 36,000 NUCLEAR BOMBS AND OTHER WEAPONS OF MASS
DESTRUCTION."13
The children of the
world continue saying they fear for their future and feel
deeply perturbed that mankind might perish either in a nuclear
holocaust or in an eco- catastrophe. Earlier, they had appealed
to UN Secretary- General, Kofi A. Annan to safeguard their
future by facilitating the formation of 'NEW WORLD ORDER'
that can eliminate the huge stockpile of nuclear weapons and
also ensure ecological and environmental conservation on a
global scale.14
Those who do not remember the past are condemned to relieve
it.
Children are telling:15
'Gone are the days of chivalry' ! - that they already left
behind the usual demands of their common rights to a second
degree, and commenced forwarding new ideas do novo. They seek
for the formation of 'NEW WORLD ORDER', and
for the provision of an 'ENFORCEABLE INTERNATIONAL
LAW' that may enable the removal of all threats to
mankind; CELEBRATED STRANGE IDEA! Mankind
will regret if the prognostication is neglected, vis-a-vis
the two global wars.
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11 Adopted by the General Assembly of the
U.N. on 20 November 1989, Part 1, Article 3. ... "the
best interests of the child shall be a primary consideration",
also with Article 9
12 World Judiciary, THE LAST HOPE FOR HUMANITY'S
SURVIVAL (Invitation for 4th International Conference of Chief
Justices of the World, 2003), India), P. 47
13 world Judiciary, cited at more 19, P.
Front Cover.
14 Ibid, P. 15.
15 SHIRER, WILLIAM, cited at more 21.
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| 3. RECOMMENDATIONS |
| 3.1) ATTITUDINAL ALTERATION |
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There are countless International
Instruments adopted by members of the united Nations
to respect and uphold International peace and security. On
the other hand, children tell the International community
that there is no 'Enforceable International Law'. They are
of deep conviction that, today people all over the world feel
totally let down by the World Politicians who have shown their
inability to rise above their own interests and to work for
the welfare of humanity at large. This is why the children
depict to have lost any other option left, but to turn to
world Judiciary. 16
Article 51/c/ of the Indian constitution that
requests fostering respect for International Law is also required
by them to be paid attention to. In order to respect the 'International
Law', children say they first need to have International Law,
and for legislating the law, they demand for a legally constituted
"World Parliament" with powers to frame same for
the entire world. U.N.O. is considered to have no powers to
enact such laws. 17
Given 36,000 nuclear weapons, it's true that a small war may
threaten to draw in the big powers and grow into the fatal
world war III. This is an added reason for rushing to put
out any fire however small. 18
A fortiori, respect for International Law, and adherence to
the UN and its activities must be the call of the day!
There are numerous International Instruments that have
been and are being observed by the whole human community.
The transgression of some of these entails severe penalty
upon perpetrators, whether ordinary citizen or Government
authority. Consider, for instance, convention on
the prevention and punishment of the crime of Genocide,
General Assembly Resolution 260A(III) of 9 December 1948.19
A convention with many parties or general customary rule
is also binding erga omens.20
Even though these Instruments lack central authority that
enforces them,21
they have undeniable moral force, and provide practical
guidance to states in their conduct, for their
values rests on their recognition and acceptance by a large
number of states - being seen as declaratory of broadly
accepted principles within the International community.22
Within the united nations system, sanctions may be imposed
by the security council upon the determination of a threat
to the peace, breach of the peace or act of aggression.
It could be economic, for example that proclaimed in 1966
against Rhodesia, or even military as in the Korean war
in 1950, or indeed both, as in 1990 against Iraq.23
Therefore, Nations which revealed their
willingness to impose economic sanction, and invade countries
to uphold principles of International Law - would not, by
any means encounter difficulty in devising a means when
their very existence is in danger.
Nuclear proliferation; the dangers facing the international
environment, such as atmospheric pollution, marine pollution,
global warming and Ozone depletion24
must be accorded priority and done away with, if THERE
IS THE WILL!!
There could be no greater danger to civilization than
a tendency to disregard the obligation of treaties.25
Hence, in order to address the call of
world children, in fact - the URGENT CONCERN OF MANKIND,
attitudinal change is sought promptly from Governments.
Upholding the sanctity of treaties and extending due respect
and assistance to the existing Global Organization, would
be the means to contain the imminent catastrophe mankind
is to face.
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16 WORLD JUDICIARY, cited at more 19, P.
15.
17 Ibid, P. 16.
18 Coylc, David Cushman, cited at note 13,
P. 116.
19 Human Rights, cited at note 1, P. 143.
20 VILLIGER, MARKE ; Customary International
Law and Treaties, A Manual on the They Practice of the Interrelation
of Sources. Full revised second Ed.; (KULWER LAW of INTERNATIONAL,
@ 1997; THE Netherlands), P. 59
21 Shaw Malculm N; International Law, Fourth
Edition -The security council of the UN was intended to have
such a role in sense but has at time occur effectively constrained
by the veto power o the five permanent members effectively
constrained by the veto power of the five permanent members.
22 Human Rights, cited at more 3, P. 2.
23 Show, Malcoln N. cited at note 30.P.4.
24 Ibid P. 585
25 Allen Gilmore, Eugene: Modern American
Law, A systematic and Comprehensive comments on the Fundamental
Principles of American Law. (Blackstone Institute, USA 1988).P.52,
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