SWELLING OF INTERNATIONAL LAW BY UNITED NATIONS

Introduction

1.1  Definition

The words “International Law” were used for the first time by Jermy Bentham in 1780. Since then these words have been used to denote the body of rules and principles which regulate the relations among the members of international community. The term ‘members of international community now denote States, International organizations, individuals and certain non- State entities[1]  

      Prof. L. Oppenheim has defined International Law in the following words –“The Law of Nationals or International Law is the name of the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other”. This definition was given by Prof. Oppenheim in 1905.[2] Oppenheim’s definition, which was considered appropriate at one time, is now subjected to severe criticisms:

i)        It is now generally recognized that not only States but international organizations have also certain rights and duties under International Law. This view has been finally affirmed by the International Court of Justice in its advisory opinion on Reparation for Injuries Suffered in the Service of the U.N (1949).

ii)      It is also recognized that to some extent individuals have some rights and duties under International law.

iii)    It is also recognized that international law consists not only of customary and conventional rules but also of general principles of law recognised by Article 38 of the Statute of the International Court of Justice.

iv)    The use of the term ‘civilized states’ has also been criticized. A few decades ago western States regarded only the Christian sates as ‘civilized’ states. For being considered ‘civilized’ neither long nor was culture the criterion. That is why; in later editions of Oppenheim’s book the word ‘civilized’ was deleted.

v)      Lastly, as pointed by Prof. Lissitzyn, “The very conception that international law as ‘body of rules’- now stands charged as static and inadequate.” He adds, “Like all living law, international law does not standstill but is continuously reinterpreted and reshaped in he very process of its application by authoritative decision makers, nationally and internationally.” It may be noted that it has become customary to define law as ‘body of rules’ Therefore it is not proper to blame Oppenheim in this respect although it is desirable to emphasis in International Law.               

Oppenheim‘s definition might have been correct at the time when he gave it but in view of the changing character of International Law and the changes that have taken place since then, his definition has now become obsolete and inadequate. Taking into consideration the present state of International Law, International Law has been very aptly defined by Fenwick “as the body of general principles and specific rules which are binding upon the members of international community in their mutual relations.” The term “international community” is very appropriate for it includes States, international organizations, individuals and other non- State entities. Yet another merit of this definition in the use of the words ‘general principles’

      According to the Soviet definition, International Law is “the sum total of the norms regulating relations between States in the process of their struggle and co-operation, expressing the will of the ruling classes of these States and secured by coercion exercised by States individually and collectively.” [3] Another eminent Russian writer defined International Law as “the totality of norms, which were developed on the basis of agreements between the States which govern their relations if in the process of struggle and co-operation between them, expressing the will of the ruling classes, and are enforced in case of necessity, by the pressure applied either collectively or by individual States.”

      After the death of Stalin the above definition was slightly modified by inclusion of reference to “peaceful co-existence.” In recent years’ Soviet writes have laid a great emphasis on ‘peaceful co-existence’ in relation between the sovereign States. According to the Soviet view, “The principles of peaceful co-existence should be the basis of the whole structure of contemporary International Law. Only if it is based on the principle of co-existence can International Law best promote the cause of peace and mutual understanding between States.”

      In the words of J.G. Strake: “International Law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe on their relations with each other, and include also—

(a)    The rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with States and individuals; and

(b)   Certain rules of law relating to individuals and non-State entities so far as the rights or duties of such individuals and non-State entities as far as the rights or duties of such individuals are the concern of the international community.” [4]

The definition of Strake is also appropriate because it takes into account the changing character of International Law.

      On the basis of above definitions, we may conclude that international Law is body of rules and principles which regulate the conduct and relations of the members of international community. [5] The contention that States alone are the subjects of international law is not only inconsistent with the changing character of international law but has become completely obsolete and inadequate. Individualistic character of inadequate. Individualistic character of international law is being replaced by the law of social inter- dependence. As pointed out by Judge Alavarez in Admission of State to Membership in the ‘Strictly individualistic international law is being more and more superseded what may be termed as the law of social inter-dependence.” In Re Piracy Jure Gentium,[6] Lord Chancellor Sankey remarked that International Law is a “living and expanding Code”

      In view of the changing character and expanding scope of International Law today, international organizations, some non-State entities and individuals have also become the legitimate subjects of International Law. Nevertheless, it cannot be denied that even today, as pointed out by Strake, “it is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore, do commonly observe, in their relations with each other.” But it is too late in the day to say that international law is a body of rules to regulate relations States only. To conclude in the words of Fenwick: “International Law may be defined in broad terms as the body of general principles and specific rules which are binding upon the members of international community in their mutual relations.

1.2 Characteristics of International Law

International law is distinct from national legal systems. Unlike domestic legal systems, there is as such no legislature (making laws for the entire international community) nor is there an executive which enforces the decisions made by the legislature.[7] There are also no comparable judicial institutions which would try violations of law and award a judgment against the offender.[8] Our analysis of the position of the United Nations will establish that none of the principal organs are comparable to those that are found on the national level. Thus the United Nations General Assembly, while representing all member States, is not the equivalent to a national legislature. The General Assembly Resolutions, save for limited exceptions, are of a recommendatory nature and as such cannot bind member States. The executive functions of the Security Council are circumscribed both ‘legally and politically’.[9] The powers of enforcement actions are trigged not by any mis-demeanor but only through a determination of ‘breach of the peace and security’. The consent of State parties remains the critical element in invoking the contentions jurisdiction of the International Court of Justice.

      The absence of a legislature, an executive body, and a judiciary with compulsory jurisdiction over all its members, makes international law very different from national legal systems. The absences of a sovereign authority has led critics to doubt whether international law could be termed as ‘law’; some would treat it more as an aspect of ‘positive morality’ than as law. The essence of proper understanding of the nature of law, it is submitted, is to acknowledge its differences from national law its sui generis characteristics. Commenting on these characteristics Professor Shaw notes:

“While the legal structure within all but the most primitive societies is hierarchical and authority is vertical, rather like a pyramid with the sovereign person or unit in a position of supremacy on top, the international system is horizontal consisting of over 180 independent states, all equal in legal theory (in that they all possess the characteristics of sovereignty) and recognizing no one in authority over them. The law is above individuals in domestic systems, but international law only exists as between the states. Individuals only have the choice as to whether to obey the law or not. They do not create it. That is done by specific institutions. In international law, on the other hand, it is the states themselves that create the law and obey or disobey it. This, of course, has profound repercussions as regards the sources of law as well as the means for enforcing legal rules.”[10]

     

1.3 Role of the United Nations in International Law

United Nations contributes to the development of International Law The United Nations was founded not only to save succeeding generations from the scourge of war and to reaffirm faith in fundamental human rights, but also to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” (Preamble of the United Nations Charter). Encouraging the development of international law as a way to regulate international relations has been a major objective of the United Nations since its very beginning.

In a globalized world, where people, commerce and ideas cross borders with ever-increasing frequency, countries have long recognized that international norms and standards are essential for modern society to function. These international rules are spelled out in the more than 500 treaties that have been deposited with the Secretary-General of the United Nations, covering a wide range of subjects, such as human rights, disarmament, refugees, the environment and the law of the sea, as well as in many other treaties deposited with governments or other entities.

The General Assembly is composed of representatives from each United Nations Member State and is the main deliberative body on matters relating to international law. Many multilateral treaties are in fact adopted by the General Assembly and subsequently opened for signature and ratification.

The Legal (Sixth) Committee assists the work of the General Assembly by providing advice on substantive legal matters. The Committee is also made up of representatives from all Member States of the United Nations.

The General Assembly has adopted a number of multilateral treaties throughout its history, including:

- Convention on the Prevention and Punishment of the Crime of Genocide (1948)

- International Covenant on Civil and Political Rights (1966)

- International Covenant on Economic, Social and Cultural Rights (1966)

- International Convention on the Elimination of All Forms of Racial Discrimination (1966)

- Convention on the Elimination of All Forms of Discrimination against Women (1979)

- United Nations Convention on the Law of the Sea (1982)

- Convention on the Rights of the Child (1989)

- Comprehensive Nuclear-Test-Ban Treaty (1996)

- International Convention for the Suppression of Terrorist Bombings (1997).

Protection of Rights and United Nations

Human rights are the rights which are possessed by all human beings irrespective of their race, caste, nationality, sex language etc. simply because they are human beings. As pointed out by Fawcett,” Human rights are some times called fundamental rights or basic rights or natural rights. As fundamental or basic rights they are those which must not be taken away by any legislature or any act of government and which are often set out in a constitution. As natural rights they are seen as belonging to men and women by their very nature. Another way to describe them would be to call them’ common rights’, for they are rights which all men and women in the world should share, just as the common law in England, for example was the body of rules and customs which, unlike local customs governed the whole country”. As pointed out by Lauterpacht since human rights are not created by any legislation, they resemble very much the natural rights. Any civilized country or body like the United Nations must recognise them. They cannot be subjected to the process of amendment even. The legal duty to protect human rights includes the legal duty to respect them. Members of the U.N. have committed themselves to promote respect for and observance of human rights and fundamental freedoms.[11]

2.1  UN Charter and Human Rights

Human Rights occupy a significant place in the U.N. Charter. The Preamble of Charter reaffirms faith in fundamental human rights and the dignity and worth of human persons and in equal rights of men and women. It is one of the purposes of the U.N. to  achieve international co-operation in solving international problems of economic, social, culture or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, (Article 1, paragraph 3). Besides this, it is provided in the Charter that the General Assembly shall initiate studies and make recommendations for the purpose of promoting international co-operation in the economic, social, cultural, and educational and health fields and assist in the realization of the human rights an fundamental freedoms for all without distinction as to race, sex, language or religion [Article 13(b)]. Further with a view to the creation of the conditions of stability and well being which are necessary for peaceful and friendly relation among nations based on respect for the principle of equal rights ands self determination of peoples, the U.N. shall promote universal respect for and observance of human rights and fundamental freedoms for all. Articles 62 and 68 also reaffirm the commitment of the U.N. to promote and encourage respect for human rights and fundamental freedoms for all. Article 55 charges the U.N. to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”. This provision is further strengthened by Article 56 under which “All members pledge themselves to take joint and separate action in co-operation with the organization for the achievement of the purposes set forth in Article 55.”

      Thus Articles 55 and 56 bind member States to observe and respect human rights. This view finds support from the interpretation of these provisions given by the world court.

      Last but not the list, one of the basic objectives of the trusteeship in accordance with the purposes of the U.N. laid down in Article 1 of the charter, shall be “to encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion to encourage recognition of the interdependence of the peoples of the world [Articlae76(c)].

      Thus human rights occupy a significant place under the Charter. But writers are divided as to whether human rights have become legal rights under the law of United Nations or not. The correct view probably would be that human rights have now become legal rights. This is, inter alia, due to the adoption of universal declaration of human rights and coming into effect of the international bill of human rights.

2.2 The Universal Declaration of Human Rights (UDHR)

2.2.1 History of Universal Declaration of Human Rights

We have noted that the Unites Nations Charter contains a number of references to ‘human rights’, through no elaboration is provided to the meaning of the concept within the Charter itself. It has also been noted that efforts by certain States, notably Panama, to have a ‘Bill of Rights’ included within the United Nations Charter proved unsuccessful.[12] After the coming into operation of the United Nations Charter, there was a move to spell out the meaning of the concept of ‘human rights’ in greater detail. In 1945, the preparatory commission recommendation that ECOSOC should establish a Commission on Human Rights which would then prepare a Bill of Rights. The recommendation was approved by the General Assembly and a Human Rights Commission was established in 1946.  The first regular sessions of the Human Rights Commission began on 27^th January 1947. The Human Rights Commission immediately got down to its first test that is the drafting of the International Bill of Rights.  A consideration of the proceedings of the Human Rights Commission (and a specifically established drafting committee) represents divisions as to the forms the International Bill of Rights should take. The primary divisions were among those who wanted a declaration and those in favour of a binding convention or treaty.[13] In the second session of the Human Rights Commission late in 1947, it was decided that the International Bill of Rights should have three parts... a declaration; a Convention; and ‘measures of implementation’ (i.e. a system of international supervision).[14] It was subsequently decided to split the Covenant into two separate Covenants.

      The Declaration was adopted on 10 December 1948 with forty- eight votes in favour, none against and eight abstentions.[15] The UDHR was adopted by Resolution 217 (III) which consisted of five parts. Part A consisted of the UDHR whereas part B was entitled the Right to Petition. In part C of the resolution, the General Assembly called upon the United Nations Sub-Commission ‘to make a thorough study of the problem of minorities, in order that the United Nations may be able to take effective measures for the protection of racial, national, religious or Injustice minorities.’  Part D related to the publicity to be given to the UDHR and Part E was entitled ‘Preparation of a Draft Covenant on Human Rights and Draft Measures of Implementation.’ The Declaration has thirty articles covering the most important fundamental human rights. The General Assembly adopted the Declaration as a ‘common standard of achievement for all peoples and all nations’. The catalogue of rights contained within the Declaration, provides for both civil and political rights as well as economic, social and cultural rights.

2.2.2 Critics on UDHR

Human rights violations occur when any state or non-state actor breaches any part of the UDHR treaty or other international human rights or humanitarian law. In regard to human rights violations of United Nations laws. Article 39 of the United Nations Charter designates the UN Security Council (or an appointed authority) as the only tribunal that may determine UN human rights violations.

      Human rights abuses are monitored by United Nations committees, national institutions and governments and by many independent non-governmental organizations, such as Amnesty International, International Federation of Human Rights, Human Rights Watch, and World Organization against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International. These organizations collect evidence and documentation of alleged human rights abuses and apply pressure to enforce human rights laws.

      Only a very few countries do not commit significant human rights violations, according to Amnesty International. In their 2004 human rights report (covering 2003), the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only (mappable) countries that did not (in their opinion) violate at least some human rights significantly. [16]

      There are a wide variety of databases available which attempt to measure, in a rigorous fashion, exactly what violations governments commit against those within their territorial jurisdiction.[citation needed] An example of this is the list created and maintained by Prof. Christian Davenport at the Kroc Institute - University of Notre Dame.[17]

2.3 International Covenant on Civil and Political Rights (ICCPR)

After the adoption of the Universal Declaration of Human Rights, (UDHR)[18] the next stage was to establish legally binding principles on international human rights. In its Resolution 217B and E (III) of 10 December 1948, the General Assembly, through the ECOSOC, requested the Human Right Commission to continue to give priority to the drafting of the International Covenant and measures of implementation.

Originally it had been intended to draft a single Covenant covering all the fundamental rights. However, with the onset of the cold war and raise of new nation States (with their own priorities) it becomes impossible to incorporate all the rights within one document.[19] The western States put emphasis on civil and political rights whereas the focus of the socialist and newly independent States was on economic, social and cultural rights and the rights to self-determination. There were divisions and difficulties around having civil and political rights alongside economic, social and cultural rights, within the text of a single treaty. Those in favour of a single covenant argued that:

      Human rights could not be clearly divided into different categories, nor could they be so classified as to represent a hierarchy of values. All rights should be promoted and protected at the same time. Without economic, social and cultural rights, civil and political rights might be purely nominal in character; without civil and political rights, economic, social, and cultural rights could not be ensured.[20]

However, the opposing camp prioritized civil and political rights as more significant. They also pointed to the progressive nature of the social and economic rights, some even doubting that they were rights in the true sense. A critical issue related to the implementation mechanism. While it was thought possible to set up a scheme to implement civil and political rights, the same was not thought to be feasible for social and economic rights.

It was ultimately decided to have two different treaties, one covering primarily civil and political rights (i.e. ICCPR)[21] and the other economic, social and cultural rights (i.e. ICESCR).[22]As we shall analyse in detail, although some rights contained within these treaties overlap, there are nevertheless substantial differences in the content, nature of obligations and the implementation mechanisms. The ICCPR and the ICESCR were approved by the Third Committee of the General Assembly in December 1966. Each Covenant required 35 ratifications and both came into force in 1976. The Optional Protocol was approved in 1966 and required 10 ratifications. As of 31 March 2002, there were 148 states parties to the ICCPR. In addition, 101 States have made declarations pursuant to the First Optional Protocol to the ICCPR. The Second Optional Protocol, aimed at the Abolition of the Death Penalty, was adopted and opened for signature, accession or ratification on 15 December 1989. It came into operation on 11 July 1991. There are currently 46 States parties to this Protocol. The ICCPR consists of a preamble and 53 articles, which are divided into eight parts. The ICCPR has many rights which are covered by UDHR or other international and regional human rights treaties. However, unlike the UDHR, the ICCPR does not accord protection to the right to property (covered by UDHR and ECHR First Protocol). For the most part the ICCPR grants rights to all individuals who are within the territories of state parties and are subject to their jurisdiction, regardless of their constitutional or political status. Thus the protection covers nationals, aliens, refuges and illegal immigrants. The reference in the ICCPR to ‘everyone’ or ‘all persons’ in relation to a majority of rights confirms this view. In order to ensure the rights within the Covenant, States parties undertake to provide for an effective remedy, by competent and judicial authorities, and to ensure the enforcement of these remedies by competent authorities.[23]

2.3.1 General Nature of Obligations of ICCPR

Articles 2-5 of both the Covenants constitute Part II, containing in each instance an undertaking to respect or to take steps to secure progressively the substantive rights which follow in Part III together with certain other provisions. According to Article 2 (1) of the ICCPR ‘each State Party undertakes to respect and to ensure to allow individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.

      While there is and obligation undertaken by States to ‘respect and to ensure rights recognised in the Covenant’ there is no obligation to incorporate the treaty into domestic law. The Human Rights Committee has tried to investigate the exact status which the Covenant has in relation to the constitutional regimes of States parties. In elaborating the provisions of this article, the Committee has noted that, in order to ensure the rights, States are under an obligation to undertake positive and specific action. In its General Comment, the Committee considered it:

Necessary to draw the attention of Sates parities to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights. This is obvious in number of articles (e.g. article 3 [on the equal rights between men and women to the enjoyment of the rights] in the ICCPR) but in principle this undertaking relates to all rights set forth on the Covenant.

Article 2(2) provides that the States parties undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Equality upon the basis of gender is also an issue addressed in Article 3 according to which States parties undertake to ensure the equal rights of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Article 4 is a provision permitting State parties to make derogations from the ICCPR ‘in time of public emergency which threatens the life of the nations.’ The capacity to make derogations is, however, limited to ‘strict exigencies of the situation.’[24] No derogations are permissible from Articles 6, 7, 8 (paras 1 and 2), 11, 15, 16 and 18. The scope of derogation has also been narrowly construed by the Committee and it retains ultimate discretion on construing whether a particular derogation satisfies the requirement.[25]

Since the procedure came into effect in March 1979, the Committee has found 282 violations of various rights contained in the ICCPR. An analysis of the jurisprudence of the Committee provides an impressive exhibition of the manner in which a body with limited resources and powers could nevertheless exert influence to protect the rights of individuals. The Committee has, over the last two decades, emerged as the most important organ striving for the universal enforcement of human rights within the framework of the United Nations. Imaginative and ambitions ideas have been taken up. Reference could be made to the provisions for informing the respondent State of desirable interim measures ‘to avoid irreparable damage to the victim’[26]and the  publication of its final decisions without abridgement in spite of Article 6 of the Protocol providing merely for a  ‘summary if its activities.’[27] In contrast to the ECHR, the grounds for rejecting individual communications are respectively applied. There is no time limit again in contrast to the ECHR’s six-month rule. While the Committee has utilised concept found in other human rights systems, such as the ECHR’s doctrine of ‘margin of appreciation,’ it has been very restrictive in granting discretionary powers which are likely to be misused.[28] With regard to submitting communications, the costs of petitioning are relatively small and there are no specific requirements relating to the language in which communications oulght to be made. Despite these positive features, there are significant difficulties faced by the Committee.

      It is not a court of law and its views are not binding upon the relevant parties.[29] There is no possibility of sanctions (comparable to ECHR) attached to the Committee’s decisions not are any provisions made for the appointment of an ad hoc investigation committee (as in ECOSOC Resolution 1503)[30] nor for the appointment of an ad hoc conciliation commission as in its own inter-State procedure. There are no judicial sanctions attached to the Committee’s views although the basic sprit of the Protocol and the purpose for which the Committee was established must not be overlooked. The Committee was never perceived to be a Supreme Court for international human rights system can only work effectively in cooperation with State parties’ involvement and cooperation. Although limited to those States that are parties to the Protocol, the procedure presents the only attempt within the UN system to deal with cases from individuals in quasi-judicial procedure and to render an opinion upon the merits of the case.

      Before concluding, a number of concerns and limitations faced by the Committee under the Optional Protocol have to be mentioned. First, the absence of sanctions attached to the Committee’s views does in fact mean that the full potential of the international system of human rights protection is not realised. While the Committee has persuaded many states to change their laws and administrative practices, the overall position has appropriately been described as disappointing’. It is certainly unsatisfactory when compared to the European human rights system. Second, attached to this lack of sanctions is the concern regarding non-cooperation with, or even non-recognition of, the Committee’s decisions. We have already considered the Committee’s efforts to ensure compliance and cooperation. These efforts are only partially successful. Last but not leas, the Committee, like other UN bodies, is facing a substantial crisis of personnel and funding. In its work it is facing a huge backlog of at least three years.[31] There is an urgent need to support the Committee with additional funds, and it would be useful to hold a number of extraordinary sessions to reduce or remove the current backlog.

2.4 The International Covenant on Economic, Social and Cultural Rights (ICESCR)

2.4.1  Introduction about ICESCR

All human rights are universal, indivisible and interdependent and interrelated. The international committee must treat human rights globally in fare and equal manner, on the same footing, and with the same emphasis. [32]

The Vienna Declaration and Programme of Action (1993) clearly recognises the interrelationship and interdependence of civil and political rights and the social, economic and cultural rights. This recognition is present in varying degrees in the entire major human rights instrument. As we have already noted the UDHR[33]affirms the existence of the three generations of rights.[34] The ICCPR also retains as its primary Article the right to self- determination, which is a collective right, the right of peoples.[35] It also contains articles on equal protection of the law (Article 26), right to freedom of association (Article 22(1), right to lifer (Article 6(1)) and rights of minorities including their cultural rights (Article 27). Similarly other international and regional human rights instruments reiterate the overlap between social, economic, and cultural rights, and civil and political rights. Regional human rights treaties primarily represented by the ECHR,[36] the American Convention on Human Rights (ACHR),[37]and the AFCHPR[38] including on various ways to protect social, economic and cultural rights, while retaining a focus on civil and political rights.

2.4.2 Core Provisions

Principle of progressive realisation

Article 2 of the Covenant imposes a duty on all parties to

take steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.[39]

This is known as the principle of "progressive realisation". It acknowledges that some of the rights (for example, the right to health) may be difficult in practice to achieve in a short period of time, and that states may be subject to resource constraints, but requires them to act as best they can within their means.

The principle differs from that of the ICCPR, which obliges parties to "respect and to ensure to all individuals within its territory and subject to its jurisdiction" the rights in that Convention.[40] However, it does not render the Covenant meaningless. The requirement to "take steps" imposes a continuing obligation to work towards the realisation of the rights.[41] It also rules out deliberately regressive measures which impede that goal. The Committee on Economic, Social and Cultural Rights also interprets the principle as imposing minimum core obligations to provide, at the least, minimum essential levels of each of the rights.[42]  If resources are highly constrained, this should include the use of targeted programmes aimed at the vulnerable.[43]

The Committee on Economic, Social and Cultural Rights regards legislation as an indispensable means for realising the rights which is unlikely to be limited by resource constraints. The enacting of anti-discrimination provisions and the establishment of enforceable rights with judicial remedies within national legal systems are considered to be appropriate means. Some provisions, such as anti-discrimination laws, are already required under other human rights instruments, such as the ICCPR.[44]

2.4.3 General Nature of Obligation: Progressive Realization of Rights

In Article 2 of the Covenant, the nature of the obligations undertaken by States parties is spelled out. According to Article 2(1):

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption legislative measures.

 Some commentators doubt whether the Covenant imposes obligations carrying immediate legal affect. The matter has been controversial, although the correct view appears to be that the Article imposes legal obligations that are required to be given immediate legal affect by the State party concerned. Thus according to the Limburg Principles:

The obligation ‘to achieve progressively the full realisation of the rights’ requires States parties to move as expeditiously as possible toward the realisation of the rights. Under no circumstances shall this be interpreted as implying for States the right to defer indefinitely efforts to ensure full realisation. On the contrary all States parties have the obligation to being immediately to take steps to fulfill their obligations under the Covenant.

These obligations, however, are limited to ‘taking steps’ with a view to ‘achieving progressively the full realisation of the rights’ that are recognised in the treaty. It is interesting to note the contrasting provisions of ICCPR which impose an obligation on States to ‘respect and to ensure.’ The provisions of Article 2(1) (have been further explore by the Committee’s General Comment on the Nature of State Parties Obligation (Article 2, para 1) where the Committee notes ‘while the Covenant provides for progressive realisation and acknowledges the constrains due to the limits of available resources, it also imposes various obligations which are of immediate effect.’ The Committee has emphasised that even in situations where there are inadequate resources, the obligation remains on the State party to try to ensure the enjoyment of rights.[45]

      While legislative means are required, they do not represent the only means of ensuring implementation and it is a matter for the State concerned to determine whatever means (legislative or otherwise) would be required to provide the rights contained within the Covenant. In its third General Comment, the Committee observed that the phrase

      ‘by all appropriate means’ must be given its full and natural meaning which each State party must decide fort itself which means are the most appropriate under the circumstances with respect to each of the rights, the ‘appropriateness’ of the means chosen will not always be self-evident. It is therefore desirable that States parties reports should indicate not only the measures that have been taken but considered to be most ‘appropriate’ under the circumstances. However the ultimate determination as to whether all appropriate measures have been taken remains for the Committee to make.’

Article 2(2) represents the crucial non-discriminatory provision within the Covenant. According to this provision the rights contained within the treaty are to be provided without ‘any discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property birth or other status.’ As we shall be analysing in the course of this study, the norm of non-discrimination informs the entirety of human rights law. The effective application of a regime of equality and non-discrimination is particularly important in the context of ensuring economic, social cultural rights. The significances of this principle in underlined by Craven when he notes:

It is very much apparent that a notion of equality runs through the heart of the Covenant. The Covenant assumes the creation or maintenance of state welfare institutions and social safety nets (for example the provision of housing, food, clothing and social security) and as such is openly redistributionist.

States are required not only to provide de jure equality, but are allowed to introduce distinctions among various sections of the community in order to ensure de facto equality. According to one commentator the policy of affirmative action has been sanctioned by the terminology of Article 2(1) itself.[46] Article 3 restates the fundamental requirement for equality of provision of the rights contained in the Covenant. Commenting on this article, Principle 45 of the Limburg Principle observes that ‘In the application of article 3 due regard should be paid to the Declaration and Convention on the Elimination of All Forms of Discrimination against Women and other relevant instruments and the activities of (CEDAW) under the said Convention.’ Article 4 provides for a general limitation clause which is applicable to the substantive rights contained on Part III of the treaty.; Article 5 contains what can be termed as a ‘saving clause’ which in effect states that treaty provisions cannot be used as a justification for the violation of the rights either contained therein or already established elsewhere.

2.4.4  Critical Analysis

The analysis of economic, social and cultural rights contained on the ICESR reveals many limitations and shortcomings. A particularly distributing aspect has been the debate about the nature of many of the rights contained on the Covenant; whether they create immediate binding obligations or a mere Programme of action. Through a consideration of the provisions of the ICESCR, the Committee’s Observations and General Comment, this chapter has established that economic, social and cultural rights retain the same legal value and binding effect as civil and political rights. At the same, on a pragmatic level, it has to be conceded that the implementation of economic and social rights thus far has straightforward. The implementation mechanisms themselves have had to be revised and we are still awaiting the adoption of an individuals’ complaints procedure.

            The Committee, since its establishment on 1985, has done a commendable job in monitoring to Covenant. Of particular value have been its views emerging from its analysis of State report and General Comments. In its consideration of State reports, the Committee has taken a broad approach which encompasses human rights obligations incurred through the acceptance of ICESCR.

      In particular the Committee has stressed the need for comprehensive reviews of national legislation and administrative rules regarding the rights contained in the Covenant and of adequate scrutiny of governmental polices. The Committee has also highlighted the need for greater coordination in policy making which would provide a basis for effective evaluation of the progress made in achieving the rights. Through its work the Committee has facilitated a better understanding of the problems and issues involved in the implementation of the Covenant as well as promoting the exchange of information among States. Changes have also been introduced which have improved the work of the Committee. As noted earlier, the system of presenting initial reports at three year intervals, each dealing with on- third of the rights, was changed by the Committee to a single comprehensive report to be submitted every five years.

      With regard to the role and position of NGOs in the present context, NGOs have been the principal advocates of the vindication of individual human rights. Although, over the years, their contribution (again largely through positive actions undertaken by the Committee) has become more effective in the implementation of the ICESCR, there continues to be some reluctance of the party of many NGOs to engage themselves in promoting economic, social and cultural rights. A predisposition in favour of civil and political rights is perhaps to be attributed to the origins and issues addressed by many of the NGOs. NGOs based in the developing world, in particular, have often treated violations of economic and social rights as ancillary to the breached of civil and political rights. This bias in the work of the NGOs needs to be removed.

International Law for the protection of women and United Nations

3.1 Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979 ( Popularly known as CEDAW)

On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination against Women was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. By the tenth anniversary of the Convention in 1989, almost one hundred nations have agreed to be bound by its provisions.

Among the international human rights treaties, the Convention takes an important place in bringing the female half of humanity into the focus of human rights concerns. The spirit of the Convention is rooted in the goals of the United Nations: to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women. The present document spells out the meaning of equality and how it can be achieved. In so doing, the Convention establishes not only an international bill of rights for women, but also an agenda for action by countries to guarantee the enjoyment of those rights.

3.2 Context of CEDAW

In its preamble, the Convention explicitly acknowledges that "extensive discrimination against women continues to exist", and emphasizes that such discrimination "violates the principles of equality of rights and respect for human dignity". As defined in article 1, discrimination is understood as "any distinction, exclusion or restriction made o.1 the basis of sex...in the political, economic, social, cultural, civil or any other field". The Convention gives positive affirmation to the principle of equality by requiring States parties to take "all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.[47]

The agenda for equality is specified in fourteen subsequent articles. In its approach, the Convention covers three dimensions of the situation of women. Civil rights and the legal status of women are dealt with in great detail. In addition, and unlike other human rights treaties, the Convention is also concerned with the dimension of human reproduction as well as with the impact of cultural factors on gender relations.

The legal status of women receives the broadest attention. Concern over the basic rights of political participation has not diminished since the adoption of the Convention on the Political Rights of Women in 1952. Its provisions, therefore, are restated in article 7 of the present document, whereby women are guaranteed the rights to vote, to hold public office and to exercise public functions. This includes equal rights for women to represent their countries at the international level.[48] The Convention on the Nationality of Married Women - adopted in 1957 - is integrated under article 9 providing for the statehood of women, irrespective of their marital status. The Convention, thereby, draws attention to the fact that often women's legal status has been linked to marriage, making them dependent on their husband's nationality rather than individuals in their own right. Articles 10, 11 and 13, respectively, affirm women's rights to non-discrimination in education, employment and economic and social activities. These demands are given special emphasis with regard to the situation of rural women, whose particular struggles and vital economic contributions, as noted in article 14, warrant more attention in policy planning. Article 15 asserts the full equality of women in civil and business matters, demanding that all instruments directed at restricting women's legal capacity ''shall be deemed null and void". Finally, in article 16, the Convention returns to the issue of marriage and family relations, asserting the equal rights and obligations of women and men with regard to choice of spouse, parenthood, personal rights and command over property.

Aside from civil rights issues, the Convention also devotes major attention to a most vital concern of women, namely their reproductive rights. The preamble sets the tone by stating that "the role of women in procreation should not be a basis for discrimination". The link between discrimination and women's reproductive role is a matter of recurrent concern in the Convention. For example, it advocates, in article 5, ''a proper understanding of maternity as a social function", demanding fully shared responsibility for child-rearing by both sexes. Accordingly, provisions for maternity protection and child-care are proclaimed as essential rights and are incorporated into all areas of the Convention, whether dealing with employment, family law, health core or education. Society's obligation extends to offering social services, especially child-care facilities, that allow individuals to combine family responsibilities with work and participation in public life. Special measures for maternity protection are recommended and "shall not be considered discriminatory". (article 4). "The Convention also affirms women's right to reproductive choice. Notably, it is the only human rights treaty to mention family planning. States parties are obliged to include advice on family planning in the education process and to develop family codes that guarantee women's rights "to decide freely and responsibly on the number and spacing of their children and to hove access to the information, education and means to enable them to exercise these rights"

The third general thrust of the Convention aims at enlarging our understanding of the concept of human rights, as it gives formal recognition to the influence of culture and tradition on restricting women's enjoyment of their fundamental rights. These forces take shape in stereotypes, customs and norms which give rise to the multitude of legal, political and economic constraints on the advancement of women. Noting this interrelationship, the preamble of the Convention stresses "that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality of men and women". States parties are therefore obliged to work towards the modification of social and cultural patterns of individual conduct in order to eliminate "prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women" (article 5). And Article 1O.c. mandates the revision of textbooks, school programmes and teaching methods with a view to eliminating stereotyped concepts in the field of education. Finally, cultural patterns which define the public realm as a man's world and the domestic sphere as women's domain are strongly targeted in all of the Convention's provisions that affirm the equal responsibilities of both sexes in family life and their equal rights with regard to education and employment. Altogether, the Convention provides a comprehensive framework for challenging the various forces that have created and sustained discrimination based upon sex.

International Law for the Protection of Children and United Nations

 

It was not until the late nineteenth century that a nascent children’s rights’ protection movement countered the widely held view that children were mainly quasi-property and economic assets.  In the United States, the Progressive movement challenged courts’ reluctance to interfere in family matters, promoted broad child welfare reforms, and was successful in having laws passed to regulate child labor and provide for compulsory education.  It also raised awareness of children’s issues and established a juvenile court system.  Another push for children’s rights occurred in the 1960s and 1970s, when children were viewed by some advocates as victims of discrimination or as an oppressed group.  In the international context, “the growth of children’s rights in international and transnational law has been identified as a striking change in the post-war legal landscape.” The purpose of this overview is to describe some of the provisions of certain major international legal instruments on children’s rights that form part of that landscape.[49] 

 

4.1 Declaration of the Rights of the Child 1959

The U.N. Declaration of the Rights of the Child (DRC) builds upon rights that had been set forth in a League of Nations Declaration of 1924.  The Preamble notes that children need “special safeguards and care, including appropriate legal protection, before as well as after birth,” reiterates the 1924 Declaration’s pledge that “mankind owes to the child the best it has to give,” and specifically calls upon voluntary organizations and local authorities to strive for the observance of children’s rights. One of the key principles in the DRC is that a child is to enjoy “special protection” as well as “opportunities and facilities, by law and by other means,” for healthy and normal physical, mental, moral, spiritual, and social development “in conditions of freedom and dignity.” [50]

 

4.2 Minimum Age Convention 1973

The aim of the Minimum Age Convention (MAC) is to establish a general instrument on the subject of the minimum age of employment with a view to achieving the total abolition of child labor (Preamble).  Thus, each State Party is to “pursue a national policy designed to ensure the effective abolition of child labor and to raise progressively the minimum age for admission to employment to a level consistent with the fullest physical and mental development of young persons” (article 1).  States Parties must specify a minimum age for admission to employment or work, subject to certain exceptions set forth in the MAC.  That minimum may not be less than the age of completion of compulsory schooling and, in any case, less than fifteen years, but it may initially be set at fourteen years if a state’s economy and educational facilities are insufficiently developed (article 2). 

4.3 U.N. Convention on the Rights of the Child 1989

The Convention on the Rights of the Child (CRC) is the most comprehensive document on the rights of children. Based purely on the number of substantive rights it sets forth, as distinct from implementation measures, it is the longest U.N. human rights treaty in force and unusual in that it not only addresses the granting and implementation of rights in peacetime, but also the treatment of children in situations of armed conflict.  The CRC is also significant because it enshrines, “for the first time in binding international law, the principles upon which adoption is based, viewed from the child’s perspective.”  The CRC is primarily concerned with four aspects of children’s rights (“the four ‘P’s”): participation by children in decisions affecting them; protection of children against discrimination and all forms of neglect and exploitation; prevention of harm to them; and provision of assistance to children for their basic needs.  For the purposes of the CRC, a child is defined as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” (article 1).[51] 

Key accomplishments of the CRC have been described as five-fold.  It creates new rights for children under international law that previously had not existed, such as the child’s right to preserve his or her identity (articles 7 and 8), the rights of vulnerable children like refugees to special protection (articles 20 and 22), and indigenous children’s right to practice their culture (articles 8 and 30).  In some instances, this innovation takes the form of child-specific versions of existing rights, such as those in regard to freedom of expression (article 13) and the right to a fair trial (article 40).  In addition, the CRC enshrines in a global treaty rights that hitherto had only been found in case law under regional human rights treaties (e.g., children’s right to be heard in proceedings that affect them) (article 12).  The CRC also replaced non-binding recommendations with binding standards (e.g., safeguards in adoption procedures and with regard to the rights of disabled children) (articles 21 and 23).  New obligations are imposed on States Parties in regard to the protection of children, in such areas as banning traditional practices prejudicial to children’s health and offering rehabilitative measures for victims of neglect, abuse, and exploitation (articles 28(3) and 39).  Finally, the CRC sets forth an express ground obligating States Parties not to discriminate against children’s enjoyment of CRC rights. The right to participate in proceedings, it is argued, “together with the principles of non-discrimination in Article 2 and provision for the child’s best interests in Article 3, form the guiding principles of the Convention, which reflect the vision of respect and autonomy which the drafters wished to create for all children.”

4.4 Optional Protocols to the CRC on Sex Trafficking, Armed Conflict

The United Nations adopted two protocols to the CRC on May 25, 2000, the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography 2000 (Sex Trafficking Protocol) and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (Child Soldiers Protocol). The Sex Trafficking Protocol (STP) addresses the problem of sex trafficking, one among many purposes for which children are bought and sold, including, in addition, forced labor, adoption, participation in armed conflicts, marriage, and organ trade.  The Preamble refers to achieving “the purposes of the CRC” and to the need for States Parties to implement specific provisions, among them CRC articles 34 and 35 on broad protections against child trafficking, sexual exploitation, and abuse.  The Preamble also reflects CRC language in regard to protecting children from economic exploitation and performance of hazardous or harmful work. In addition, it recognizes “that a number of particularly vulnerable groups, including girl children, are at greater risk of sexual exploitation” and are disproportionately represented among the sexually exploited, and expresses concern over “the growing availability of child pornography on the Internet and other evolving technologies.”  The STP defines and prohibits the sale of children, child prostitution, and child pornography; obliges States Parties to make certain acts punishable under their criminal law; sets forth the bases for States Parties to assert jurisdiction over actionable practices, and strengthens their ability to pursue extradition of offenders.  The STP also provides for protection of and assistance to the victimized children in the criminal justice process, the best interests of the child being the guiding principle in the children’s judicial treatment. For purposes of prevention and redress of offenses, the victims must have access to procedures to seek compensation for damages from those legally responsible (article 9(4)).  The STP also has provisions on strengthening international cooperation in regard to sex trafficking involving children and on reporting requirements for States Parties (article 12).[52] 

Law of the Sea and United Nations

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place from 1973 through 1982. The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th state to sign the treaty. To date, 158 countries and the European Community have joined in the Convention. However, it is now regarded as a codification of the customary international law on the issue.[53]

5.1 Historical Background of UNCLOS

The UNCLOS replaces the older and weaker 'freedom of the seas' concept, dating from the 17th century: national rights were limited to a specified belt of water extending from a nation's coastlines, usually three nautical miles, according to the 'cannon shot' rule developed by the Dutch jurist Cornelius van Bynkershoek. All waters beyond national boundaries were considered international waters — free to all nations, but belonging to none of them (the mare liberum principle promulgated by Grotius).

In the early 20th century, some nations expressed their desire to extend national claims: to include mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls. (The League of Nations called a 1930 conference at The Hague, but no agreements resulted.) Using the customary international law principle of a nation's right to protect its natural resources, President Truman in 1945 extended United States control to all the natural resources of its continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Argentina, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical miles.

5.2 UNCLOS I

In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at Geneva, Switzerland. UNCLOS I resulted in four treaties concluded in 1958:

• Convention on the Territorial Sea and Contiguous Zone, entry into force: 10 September 1964
• Convention on the Continental Shelf, entry into force: 10 June 1964
• Convention on the High Seas, entry into force: 30 September 1962
• Convention on Fishing and Conservation of Living Resources of the High Seas, entry into force: 20 March 1966

Although UNCLOS I was considered a success, it left open the important issue of breadth of territorial waters.

5.3 UNCLOS II

In 1960, the United Nations held the second Conference on the Law of the Sea (“UNCLOS II”); however, the six-week Geneva conference did not result in any new agreements. Generally speaking, developing nations and third world countries participated only as clients, allies, or dependents of United States or the Soviet Union, with no significant voice of their own.[54]

5.4 UNCLOS III

The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo, of Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New York. In an attempt to reduce the possibility of groups of nation-states dominating the negotiations, the conference used a consensus process rather than majority vote. With more than 160 nations participating, the conference lasted until 1982. The resulting convention came into force on November 16, 1994, one year after the sixtieth state, Guyana, ratified the treaty.[55]

The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes.

The convention set the limit of various areas, measured from a carefully defined baseline. (Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.) The areas are as follows:

Internal waters 

Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.

Territorial waters 

Out to 12 nautical miles from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state. Fishing, polluting, weapons practice, and spying are not “innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.

Archipelagic waters 

The convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated Archipelagic Waters. The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).

Contiguous zone 

Beyond the 12 nautical mile limit there was a further 12 nautical miles or 24 nautical miles from the territorial sea baselines limit, the contiguous zone, in which a state could continue to enforce laws in four specific areas: pollution, taxation, customs, and immigration.

Exclusive economic zones (EEZs) 

Extends from the edge of the territorial sea out to 200 nautical miles from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.

Continental shelf 

The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, whichever is greater. State’s continental shelf may exceed 200 nautical miles until the natural prolongation ends. However, it may never exceed 350 nautical miles from the baseline; or it may never exceed 100 nautical miles beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the Common heritage of mankind principle. Landlocked states are given a right of access to and from the sea, without taxation of traffic through transit states.[56]

Concluding Remarks

From above Chapters we see that the United Nations tries to establish international peace and security, but it holds some types of problem which need to resolve for its better future. On the mission that stated in the UN Charter states; "...to reaffirm faith in fundamental human rights..." this has not been affected by the UN in the least. Yes, the UN affirms human rights but abuse of human rights are as prevalent as ever. This is not because of lack of effort. However, the track record is less than spectacular. Another point mentiones in the Charter, "to establish conditions under which justice and respect for the obligations arising from treaties and other source of international law can be maintained." which with exceptions, has also been a miserable failure. Most countries ignore this when convenient and embrace it when convenient. The result being a gigantic gap in credibility. In short, the UN in this regard is largely ignored.

The UN suffers from a bloated bureaucracy, in which seniority is not linked to ability, resulting in painfully slow decision-making and operational failure. There are also institutional problems associated with the General Assembly and the Security Council, whereby GA resolutions with widespread support can be stymied by a single veto from one of the Permanent 5. This has led to unilateral action by countries such as the USA and organisations such as NATO, undermining the authority of the UN, and to a lack of credibility for the UN in dealing with issues such as Israel and Palestine.

      Another frequent demand is that the UN becomes "more democratic", and a key institution of a world democracy. This raises fundamental questions about the nature and role of the UN. The UN is not a world government, rather a forum for the world's sovereign states to debate issues and determine collective courses of action. A direct democracy would request the presidential election of the UN Secretary-General by direct vote of the citizens of the democratic countries as well as the General Assembly and the International Court of Justice. Others have proposed a combination of direct and indirect democracy, whereby national governments might ratify the expressed will of the people for such important posts as an empowered World Court.[57]

We must not forget that at the time of  international crises UN is the forum for discussion, deal-making, arbitration and understanding. The UN has also made huge contributions to global progress through its agencies, particularly those dealing with refugees, the World Health Organisation and Unicef. By its efforts smallpox has been eliminated, healthcare improved and education promoted. Such programmes are not often noticed, but the UN’s responsibility for them should be seen as a key part of its success.

References

Books

1. Javaid Rehman, International Human Rights Law, 1^st ed. (England: Pearson Education Limited, 2003).
2. S.K. Kapoor’s International Law and Human Rights, 12^th ed. (Allahabad: Central Law Agency, 2003).
3. L. Oppenheim, International Law, (New York, Longman’s Green & Co., 1905).
4. M. N. Shaw, International Law, 4^th ed. (Cambridge: Grotius Publication, 1997).
5. P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7^th ed. (London: Routledge, 1997).
6. H. J. Steiner and P. Alston, International Human Rights in context Law; Politics and Morals; Text and Materials, 2^nd ed. (Oxford: Clarendon Press, 2000).

Statutes

1. The Charter of the United Nations.
2. The Universal Declaration of Human Rights (UDHR)
3. International Covenant on Civil and Political Rights (ICCPR).
4. The International Covenant on Economic, Social and Cultural Rights (ICESCR).
5. The United Nations Convention on the Law of the Sea (UNCLOS).
6. Declaration of the Rights of the Child 1959
7. Minimum Age Convention 1973
8. U.N. Convention on the Rights of the Child 1989.
9. Optional Protocols to the CRC on Sex Trafficking, Armed Conflict
10. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Journals

1. J. P. Humphery, ‘The UN Charter and the Universal Declaration of Human Rights’,  E. Laurd ed., The International Protection of Human Rights (London; Thames & Hudson, 1967).
2. J. Crawford, ‘The UN Human Rights Treaty System: A system in Crisis’, P. Alston and J. Crawford eds., The Future of UN Human Rights Treaty Monitoring  (Cambridge: Cambridge University Press, 2000).

Websites

1.      Amnesty International Report 2004. Amnesty International. 2004. ISBN 0862103541. [http://en.wikipedia.org/wiki/Human_rights, accessed on 20 December 2009].

2.      Davenport, Christian. "Stop Our States (SOS): Analyzing and Ending State Repression". Retrieved 2008-01-19. [http://en.wikipedia.org/wiki/Human_rights, accessed on 20 December 2009].

3.      ICESCR, Article 2.1 [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 20 December 2009].

4.      UN. pp. Article 2.1. Retrieved 2008-07-13. [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 20 December 2009].

5.      Paragraph 9, "CESCR General Comment 3". UN OHCHR. 1990-12-14. Retrieved 2008-06-02. [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 21 December 2009].

6.      CESCR General Comment 3, paragraph 10. [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 20 December 2009].

7.      [http://www.loc.gov/law/help/child-rights/international-law.php, accessed on 10 January 2010].

8.      [http://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea, accessed on 21 January 2010].

9.      The Failure of United Nations, [http://www.kuro5hin.org/story/2007/9/29/22489/8449, accessed on 20 December 2009].

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[1]  S.K. Kapoor’s International Law and Human Rights, 12^th ed. (Allahabad: Central Law Agency, 2003), p.1.

[2] L. Oppenheim, International Law, (New York, Longman’s Green & Co., 1905), pp.1-2.

[3] S.K. Kapoor, ibid, p.3.

[4] Ibid, pp.5-6.

[5] Ibid, p.6.

[6] (1934) A.C 586.

[7] M.N.Shaw, International Law, 4^th ed. (Cambridge: Grotius Publication, 1997), p.3.

[8] Ibid.

[9] P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7^th ed. (London: Routledge, 1997), p.3.

[10] M. N. Shaw, ibid, p. 5-6.

[11]  S.K. Kapoor, ibid, p.57.

[12] J. P. Humphery, ‘The UN Charter and the Universal Declaration of Human Rights’,  E. Laurd ed., The International Protection of Human Rights (London; Thames & Hudson, 1967), pp.39-56.

[13] H. J. Steiner and P. Alston, International Human Rights in context Law; Politics and Morals; Text and Materials, 2^nd ed. (Oxford: Clarendon Press, 2000), p.138.

[14] J. P. Humphery, ibid, pp.22-3.

[15] 10 December, 1948, UN GA Res. 217 A (III), UN Doc. A/810 at 71 (1948). Byelorussia, Czechoslovakia, Poland, Ukraine, USSR, Yugoslavia, Saudi Arabia, and South Africa.

[16] Amnesty International Report 2004. Amnesty International. 2004. ISBN 0862103541. [http://en.wikipedia.org/wiki/Human_rights, accessed on 20  December 2009].

[17] Davenport, Christian. "Stop Our States (SOS): Analyzing and Ending State Repression". Retrieved 2008-01-19. [http://en.wikipedia.org/wiki/Human_rights, accessed on 20 December 2009].

[18] 10 December 1948, UN GA Res. 217A (III), UN Doc. A/810 at 71 (1948).

[19] Steiner and Alston, ibid, p.139.

[20] Annotations on the Text of the Draft International Covenants in Human Rights, UN Doc. A/ 2929(1955), 7 para. 8.

[21] Adopted at New York, 16 December, 1966. Entered into force 23 March 1976. GA Res. 2200A (XXI) UN Doc. A/ 6316 (1966) 999 U.N.T.S. 171 6 I.I.M. (1967) 368.

[22]  Adopted at New York, 16 December, 1966. Entered into force 3 January 1976. GA Res. 2200A (XXI) UN Doc. A/6316 (1966) 993 U.N.T.S. 3; 6 I.L.M. (1967) 360.

[23] Article 2(3).

[24] Article 4(1).

[25] Javaid Rehman’s, International Human Rights Law, 1^st ed. (England: Pearson Education Limited, 2003), p.101

[26] Ibid.

[27] Article 6 Optional Protocol.

[28] According t o Professor Harris ‘No margin of appreciation doctrine is applied under the International Covenant on Civil and Political Rights either, largely for fear of State abuse’ See D.J. Harris, ‘Regional Protection of Human Rights: the  Inter-American Achievement’ in D.J Harris and S. Livingstone (eds.), (Oxford: Clarendon Press) 1998,at p.52

[29] J. Crawford, ‘The UN Human Rights Treaty System: A system in Crisis’ in P. Alston and J. Crawford (eds), The Future of UN Human Rights Treaty Monitoring  (Cambridge: Cambridge University Press, 2000), pp.1-12, at p. 2.

[30] Javaid Rehman, ibid, p.104.

[31] H.J. Steiner, ibid,at p.33.

[32] Ibid, pp.220-37.

[33] 10 December, 1948, UN GA Res. 217 A (III), UN Doc. A/810 at 71(1948).

[34] Javaid Rehman, ibid, p. 156.

[35] Adopted at New York, 16 December, 1966. Entered into force 23 March 1976. GA Res. 2200A (XXI) UN Doc. A/ 6316 (1966) 999 U.N.T.S.171; 6 I.L.M. (1967) 368.

[36] Signed at Rome, 4 November 1950. Entered into force 3   September 1953. 213   U.N.T.S 221; E.T.S. 5.

[37] Signed at San Jose, 22 November 1969. Entered into forced 18 July 1978. 1144 U.N.T.S 123; O.A.S.T.S No. 36, O.A.S. Off. Rec. OEA/Ser.L/V/11.23, doc.rev, (1979); 9.I.L.M (1970) 673.

[38] Adopted on 27 June 1981. Entered into force 21 October 1986. OAU Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M (1982)58.

[39] ICESCR, Article 2.1 [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 20 December 2009].

[40] UN. pp. Article 2.1. Retrieved 2008-07-13. [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 20 December 2009].

[41] Paragraph 9, "CESCR General Comment 3". UN OHCHR. 1990-12-14. Retrieved 2008-06-02. [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 21 December 2009].

[42]  CESCR General Comment 3, paragraph 10. [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 20 December 2009].

[43] CESCR General Comment 3, paragraph 12. [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 20^th 2009].

[44] CESCR General Comment 3, paragraphs 3 - 6. [http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural, accessed on 20^th 2009].

[45] UN Doc. E/1991/23, para  11.

[46] Ibid. pp. 157-8.

[47] CEDAW, Article 3.

[48]Ibid, Article 8.

[49] [http://www.loc.gov/law/help/child-rights/international-law.php, accessed on 10 January 2010].

[50] Ibid.

[51] Ibid.

[52] Ibid.

[53][http://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea, accessed on 21 January 2010].

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] The Failure of United Nations, [http://www.kuro5hin.org/story/2007/9/29/22489/8449, accessed on 20 December 2009].