Address of
Hon’ble Mr Justice P. S. Shivute
Chief Justice, Supreme Court of Namibia
 
1. I am humbled by the honour and privilege of being invited once again to attend and address this high level annual gathering of jurists of great excellence. In the same vein I would like to express my deep appreciation to Mr Gandhi and his dedicated team of organisers for the hospitality extended to us and indeed for excellent arrangements. We are delighted to be able to make a small contribution towards the realisation of a healthy and safe future for our children and generations to come.
2. I know we have some of the world's legal giants in our midst, and so the experiences we share in this Conference must perforce have an enduring impact on the world legal scene and on our quest for a world fit for children.
3. With this thought in mind, I am pleased to share with you my views on the theme "Empower the International Court of Justice for the future of world's two billion children and generations yet to be born" in my brief address.
4. It has been said that children are the best things in life, and childhood is a special and unequalled experience that never returns. Every child is therefore entitled to a blissful childhood, surrounded by love and affection and, above all, protection.
5.

I do not think there is any faith or custom or tradition which does not call on parents and adults to protect, love and cherish children. The first statement in the preamble of the Charter of the United Nations is:

We the peoples of the United Nations, determined to save succeeding generations from the scourge of war...
6. With this powerful preambular statement, the United Nations promised our children and generations yet to be born life, not war and suffering; love, not abuse.
7. But, I am afraid; the majority of children live in conditions of abject poverty, disease-ridden environment and suffer all manner of abuse from parents and adults that do not bear contemplation. Children are too often exploited and abused. Speaking for myself, I think negligence of the wellbeing of children must always cause us great pain.
8. The pain we suffer must stoke up our desire to make meaningful and genuine efforts to change all that is bad and unacceptable when it comes to the protection of the child and the promotion of his or her wellbeing. Seven years into the new millennium, I think, we have it in our power to do that. The time has come to spare no effort to protect, love and promote the wellbeing of children.
9. Fortunately, a major international legal framework has been established in the form of the Convention on the Rights of the Child. By June 2004, when the last five-yearly count of State Parties to various human rights treaties was taken, 192 States had become State Parties to the Convention; that is almost the total number of nation States of the world. Thus, for the first time for human rights treaties, the Convention has attained universal acceptance. This situation is more than a mere symbolic value: it has both legal and political value.
10. Admittedly, the law text in the Convention is not enough. It is, therefore, the bounden duty of every Convention State to inform its people about the Convention and put in place the relevant domestic statutes and administrative measures necessary to implement the provisions of the Convention.
11. To this end, effective national legal and judicial institutions are essential to the success of implementing all the pro-active and practically attainable provisions of the Convention in a particular Convention country. Thus, just as national courts must play a role in the implementation of the Convention at the national level; international tribunals ought to fulfil that role at the international level. We cannot solve the multitude of problems of the child on a national level alone: today they are an international challenge.
12. Doubtless, the International Court of Justice (ICJ) lies at the pivot of the international system for adjudicating disputes among States. Besides, we must bear in mind the Court's advisory opinions and their impact on public opinion. The Convention on the Rights of the Child is a part of international law, particularly international human rights law because it covers the whole gamut of economic, social, civil and political rights of the child. And the United Nations Children's Fund (UNICEF) plays a leading role in promoting adherence to the Convention.
13. We are aware that only a subject of international law may bring a dispute for adjudication by the ICJ, and the jurisdiction of the ICJ depends on the consent of the States concerned. But as I have said, the ICJ may also give advisory opinions on legal questions to the General Assembly of the United Nations and 21 other United Nations organs and international agencies competent to request opinions of the ICJ.
14. Such opinions are generally not binding, but nevertheless several of such opinions since 1948 have had considerable legal significance and effect. For instance, in the Western Sahara advisory opinion (1975) the ICJ found that the concept of res nullius, i.e. territory belonging to no one, no longer had any place in international law. An earlier ICJ advisory opinion which contributed to decolonization was the Court's opinion on Namibia, my own country. Namibia opinion of 1971 formed the basis upon which the General Assembly terminated South Africa's mandate to rule the country.
15. I have made references to the power of the ICJ to give advisory opinions in order to venture an opinion of my own for serious discussion and debate.
16. Article 43(1) of the Convention establishes the supervisory Committee on the Rights of the Child. In order to foster the effective implementation of the Convention and to encourage international cooperation in the areas covered by the Convention, the Committee may, in terms of paragraph (c) of Article 45, recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child.
17. One issue that the Committee may recommend to the General Assembly for the latter body to request the Secretary-General to undertake may be this: the legality or otherwise of a State Party to the Convention recommending to the Committee to request the General Assembly to seek an advisory opinion from the ICJ as to what should be done where that complaining State Party has credible information of blatant and persistent violations of the Convention by another State Party to the Convention.
18. If such an action is found to be legally permissible, a positive opinion by the ICJ in that regard can have a considerable legal significance on State Parties' adherence to the Convention, and the ICJ would be playing an important role in support of the desire of "We, the peoples of the United Nations" to maintain the wellbeing of the child and to protect and promote his or her social, economic, civil and political rights. And that, in my view, would constitute a befitting legacy to the world's two billion children and generations yet to be born.

I thank you.
 
 
 
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