Before I begin, I must tell you that in trying to find something useful to say about the theme of this Conference, I came across a great deal of information on this School's website and, I must say that I was greatly impressed by what I saw and read. Mind you, I cannot say that I have been able to absorb all of the information on the website but at least I was able to have some appreciation of the calibre of the teaching staff and the students by reading some of the papers various members of both bodies have presented in the past few years.
Let me also congratulate and thank Mr Jagdish Ghandi and his team for all their effort in bringing so many distinguished jurists to this city which up until now I had only read about when studying British Empire History in the 1950's.
As a school (the largest of its kind), you are, of course concerned with the education of the next generation of citizens and you have day to day contact with future leaders so you have the advantage of seeing them develop as they grow up.
It is logical then that you would be concerned about not only the pupils of this school (past, present and future) but also about the societies into which their various callings may take them and so you are concerned about the present and future well-being of children everywhere.
Unusually for political leaders, it appears that when the Convention on the Rights of the Child was opened for ratification for member-states of the United Nations, there was nearly universal ratification in very short order. My authority for saying that is none other that Ms Carol Bellamy, then Executive Director of UNICEF. In her foreword to the Implementation Handbook for the Convention on the Rights of the Child, she wrote:
"The nearly universal ratification of the Convention on the Rights of the Child is a remarkable achievement. That fact that virtually every country in the world has committed itself to a code of binding obligations towards its children gives us tremendous hope for the future and puts children's rights at the cutting edge of the global struggle for human rights. It also places a tremendous responsibility on governments and civil society to live up to these commitments…"
Perhaps this conference should also have great hope that much can and will be accomplished towards safeguarding the rights of the children of the world.
Article 2 of the Convention on the Rights of the Child read -
"1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parents' or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members."
And Articles 3(2) and 4 of the same Convention read:
"3, (2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
4. States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Con-vention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation."
If it will not be amiss to mention it, I think it is true to say that even before the Convention on the Rights of the Child was drafted, it was the law in The Bahamas and - I venture to guess - in most, if not all, civilized countries, that the welfare of minor children was the "paramount" concern of those who administer justice in those countries - either by statute or common law. The fact that there is now an international treaty making that the norm is, perhaps, all to the good for the future of the world's two billion children.
In thinking about the theme of this conference I was wondering how the International Court of Justice ("ICJ") could be empowered to safeguard the rights of the world's children. While I was doing so, the General Assembly of the United Nations passed a resolution calling on its member states to suspend the execution of the death penalty and to seek the input of civil society about the retention or abolition of that penalty. If, as it appears, the majority, if not all, of the member states of that organisation are likely to adhere to the terms of that resolution (even if they may have voted against or abstained from voting on it), that would be another reason to be hopeful that the ICJ will be able to bring justice to the world's children by causing a general adhesion to the provisions of the Convention on the Rights of the Child.
In researching both the ICJ and the Convention on the Rights of the Child, I discovered that some countries have reported that progress was being made in the implementation of that Convention because of the work of NGOs as well as religious organisations even where governments had not been proactive in educating parents and the wider community about the requirements of the Convention.
In light of that fact, I began to wonder whether it would be possible for non-governmental organisations in all the countries represented here, to eventually get the United Nations General Assembly to expressly amend the Statute of the ICJ so as to empower it to police the implementation of the Convention on the Rights of the Child and, by its decisions to give guidance to national judiciaries and other groups about safeguarding the future of the world's children.
Those thoughts then led me to do a little research on the ICJ itself. In what follows, I feel sure, all of you are more knowledgeable than I am and I therefore ask your forgiveness if I repeat what you already know.
International Court of Justice :
The following factual background is taken from
http://en.wikipedia.org/wiki/International_Court_of_Justice:as of 8/9/2007.
As you are all aware, the ICJ was established in 1945 by the United Nations and is the successor to the Permanent Court of International Justice which had been established by the League of Nations.
"The Statute of the International Court of Justice ("the Statute") is the main constitutional document under which the ICJ operates. The ICJ has two official languages - English and French.
"The ICJ's workload is characterised by a wide range of judicial activity. Its main functions are to settle legal disputes submitted to it by states and to give advisory opinions on legal questions submitted to it by duly authorized international organs and agencies. The number of decisions made by the ICJ has been relatively small, but there has clearly been an increased willingness to use the Court since the 1980s, especially among developing countries, even though the United States withdrew from compulsory jurisdiction in 1986 which means that the United States only accepts the ICJ's jurisdiction on a case by case basis.
"The ICJ is composed of 15 judges elected to nine-year terms by the United Nations General Assembly and the United Nations Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4 -12 of the Statute of the ICJ. Judges serve for nine years and may be re-elected. Elections take place every three years, with one-third of judges retiring each time, in order to ensure continuity within the court. No two judges may be nationals of the same country.
"Article 9 of the Statute provides that the membership of the ICJ will be representative of the 'main forms of civilization and of the principal legal systems of the world'; that is, common law, civil law, and socialist law. Since the 1960s four of the five permanent members of the Security Council (France, Russia, United Kingdom and the United States) have always had a judge on the Court. However, while China (in two different emanations) has also been a member of the Security Council, it did not have a judge on the Court from 1967 to 1985, apparently because it did not put forward a candidate. The rule on a geopolitical composition of the bench exists despite the fact that there is no express provision for it in the Statute.
"By Article 2 of the Statute, the main qualification for election to the bench of the ICJ is that all judges should be "elected regardless of their nationality among persons of high moral character", who are either qualified for the highest judicial office in their home states or known as lawyers with sufficient competence in international law.
"Articles 16 - 18 deal with judicial independence of the judges of the ICJ. Judges of the ICJ are not able to hold any other post, nor act as counsel. A judge of the ICJ may only be dismissed by the unanimous vote of other members of the Court. Despite these provisions, however, the independence of the ICJ judges was questioned, for example in the Nicaragua Case by the United States which issued a communiqué suggesting that it could not present sensitive material to the Court because of the presence of judges from Eastern bloc states.
"Judges of the ICJ may deliver joint judgments or give their own separate opinions. Decisions and Advisory Opinions are by majority and, in the event of an equal division, the President's vote becomes decisive. Judges may also deliver separate dissenting opinions.
"Article 31 of the Statute makes provision for the nomination of an ad hoc judge to the ICJ by any party to a contentious case - usually of their nationality) where a judge of their nationality is not already on the bench. Ad hoc judges participate fully in the case and the deliberations along with the permanent bench. It is therefore possible that as many as 17 judges may sit on one case.
"This system may seem strange when compared with domestic court processes; but its purpose is to encourage states to submit cases to the Court. For example, if a state knows that it will have a judicial officer who can participate in the deliberation and offer other judges local knowledge and an understanding of the state's perspective, that state may be more willing to submit to the Court's jurisdiction. Although this system does not sit well with the judicial nature of the body, it is usually of little practical consequence; Ad hoc judges usually (but not always) vote in favour of the state that appointed them and thus cancel each other out.
"Generally speaking, the Court sits as a full bench, but in the last fifteen years it has on occasion sat as a chamber. Articles 26 -29 inclusive of the Statute allow the Court to form smaller chambers - usually of 3 or 5 judges - to hear cases. Two types of chambers are contemplated by Article 26: firstly, chambers for special categories of cases, and secondly, the formation of ad hoc chambers to hear particular disputes. In 1993, a special chamber was established under Article 26(1) of the Statute to deal specifically with environmental matters (although this chamber has never been used).
"Ad hoc chambers are more frequently convened. For example, chambers were used to hear the Gulf of Maine Case (USA v Canada). In that case, the parties made clear that they would withdraw the case unless the Court appointed judges to the chamber who were acceptable to the parties. Chambers judgments may have less authority than full Court judgments, or may diminish the proper interpretation of universal international law informed by a variety of cultural and legal perspectives. On the other hand, the use of Chambers might encourage greater recourse to the Court and thus enhance international dispute resolution.
"The present jurisdiction of the court is set out in Article 93 of the United Nations Charter. By that Article, all 192 member countries of the United Nations are automatically parties to the Court's statute. Non-United Nations members may also become parties to the Court's statute under Article 93(2) procedure - examples are Switzerland in 1948 and Nauru in 1988. Once a state is a party to the Court's statute, it is entitled to participate in cases before the Court. However, being a party to the Statute does not automatically give the Court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the two types of ICJ cases; contentious issues and advisory opinions…"
Of particular significance in regard to the protection of the rights of the world's children, is Article 36(1) of the Statute which gives the ICJ jurisdiction over "Matters specifically provided for in treaties and conventions in force". On a generous interpretation, it would appear that provision already empowers the ICJ to deal with contentious as well as non-contentious issues arising out of the Convention on the Rights of the Child. Indeed, I believe that member countries of the United Nations are required to send returns to that Organisation about the implementation of the provisions of that Convention in their territory.
As I understand it, Article 94 of the Statute makes it the duty of all United Nations members to comply with decisions of the ICJ involving them. Where the parties do not comply, the matter may be taken before the Security Council for enforcement. If my interpretation of the material part of Article 36(1) of the Statute is correct, it may mean that the ICJ already has the power to make judicial decisions about the Convention on the Rights of the Child.
However, according to the learned authors of the Wikipedia article mentioned earlier - "There are obvious problems with such a method of enforcement. If the judgment is against one of the five permanent members of the Security Council or its allies, any resolution on enforcement will be vetoed. This occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the U.S.'s non-compliance with the Court's decision before the Security Council. Furthermore, if the Security Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply."
One troubling aspect of the hopes expressed above is that the ICJ, like the domestic courts in some countries and regions, does not have the resources to enforce its judgments, nor does the United Nations whose peacekeepers are drawn from the soldiers of its member states. This may mean that the United Nations' Charter may require amendment and the recruitment of suitable and permanent United Nations' forces may become necessary.
Despite the perceived difficulties of enforcement of decisions of the ICJ, I am aware that pronouncements of principle by the members of that court in their judgments carry great persuasive weight in local jurisdictions, where applicable. Also, because such matters as may be determined by the ICJ concerning the Convention on the Rights of the Child appear likely to receive worldwide respect and adherence since most civilised countries consider its children to be of the first importance since they represent the future of their respective countries.
In the result, I think that each judicial officer from the civilized countries of the world, will always do their best to safeguard the rights of children in their respective jurisdictions in matters that are brought before them, so too, I think will the members of the ICJ.
Thank you for your attention.