Hon’ble Mr Justice Johnson Evans Gicheru, Chief Justice, Supreme Court of Kenya

 

Address of
Hon’ble Mr Justice Joyce Aluoch
Head, Family Division in Kenya, Handling Family and Children’s Issue
Representing
Hon'ble Mr Justice Johnson Evans Gicheru
Chief Justice, Supreme Court of Kenya

Hon’ble Ms Justice Joyce Aluoch addressing the 8th International Conference of Chief Justices of the World
 

The International Court of Justice, known colloquially as the World Court or ICJ, has a dual purpose namely, to decide in accordance with International Law, disputes of a legal nature submitted to it by States (jurisdiction in contentious cases) and secondly, to give advisory opinions on legal questions at the request of the organs of United Nations or Specialized agencies authorized to make such a request (advisory jurisdiction). Currently 192 States are parties to the Statute of the Court, 67 of which have accepted the compulsory jurisdiction of the court in accordance with Article 36, paragraph 2 of statute. Furthermore, about 300 treaties refer to the Court in relation to the settlement of disputes arising from their application and interpretation.

Only States may apply to and appear before the International Court of Justice. International Organizations, other collectivities and private persons are not entitled to institute proceedings before the Court.

How then can we empower the International Court of Justice to Safe Guard the Future of the World's Two Billion Children and Generations yet to be born?

First, is to identify the relevant instrument for such protection; and that is, the UN Convention on the Rights of the Child (CRC) which is the first legally binding international instrument to incooperate the full range of children's rights from civil, cultural, economic, political and social rights.

These rights are set out in the convention's 54 articles as well as its two Optional Protocols. It spells out the basic human rights that children everywhere have, i.e. the right to survival, to develop to the fullest, to protection from harmful influence, from abuse and exploitation and the right to participate fully in family, cultural and social affairs, only to mention a few. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development and respect for the views of the child.

Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. The Convention further protects children's rights by setting standards in health care, education, legal civil and social services.

By agreeing to undertake the obligations of the Convention (by ratifying or acceding to it), national governments have committed themselves to protecting and ensuring children's rights within their jurisdiction, and have agreed to hold themselves accountable for this commitment before the international community.

In October 2006, Judge Rosalyn Higgins, the President of the International Court of Justice, referred the UN General Assembly to the diversity of the disputes submitted to the court. She noted the growing interest of States in issues relating to human rights, international humanitarian law, and environment law.

Not many cases involving children come before the Court directly. I will now give 2 examples where the Court rendered its advisory opinion on cases touching on children's rights. First was on 19th July 2004, when the Court rendered its advisory opinion on "the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory, including in and around East Jerusalem."

The Court held that the construction of the wall entitled "substantial restrictions on the freedom of movement of inhabitants." Separating Palestinians from farmland wells and means of subsistence, the wall "has further led to increasing difficulties for the population concerned regarding access to health services educational establishments and primary sources of water. Hence the Court found that Israel violated guarantees of freedom of movement under the International Covenant on Civil and Political Rights and the Palestinian's rights to mark, health, education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and the UN Convention on the Rights of the child.

Again on 19th December, 2005, the ICJ rendered its judgment, concerning Armed Activities on the territory of the Congo (Democratic Republic of Congo v Uganda). The Court founded by sixteen votes to one, that the Republic of Uganda, by the conduct of its armed forces, which committed acts of killing, torture and other forms of inhumane treatment of the Congoless civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, trained child soldiers, incited ethnic conflict and failed to take measures to put and end to such conflict, as well as by its failure, as an occupying power, to take measures to respect and ensure respect from human rights and international humanitarian law in Ituri District, violated its obligations under International human rights law and international humanitarian law.

In order to "empower the ICJ to safe-guard the future of the World's two Billion Children and generations yet to be born", Member States of the UN should be encouraged to use the Court's advisory jurisdiction. Though ordinarily the Court's advisory opinions have no binding effect, they nevertheless carry great legal weight and moral authority. States should also stipulate before hand, that the Court's advisory opinions will have a binding effect on them. In this way, the protection for children will be guaranteed, now and in generations yet to come.