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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 : |
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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