File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

The Role Of The United Nations In The Development Of Global Law And Justice

I truly believe the only way we can create global peace is through not only educating our minds, but our hearts and our souls.- Malala Yousafzai

The United Nations is an international organization that was founded in 1945 in the wake of the aftermath of the Second World War by 51 countries committed to maintaining international peace and security, developing friendly relations among nations and promoting social progress, better living standards and human rights for the welfare of all.
The United Nations came into existence as a means for the better arbitration of international conflict and peace negotiations after the failed attempt by the League of Nations.

The principles of the U.N. Charter were first formulated at the San Francisco Conferenceon April 25, 1945.

The conference laid out a structure for the international organisation of the United Nations

  • To save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
  • To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
  • To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
  • To promote social progress and better standards of life in larger freedom[i]
     

Due to its unique international character, and the powers vested in its founding Charter, the XIX Chaptersof the Charter has bestowed the authority onto the United Nations to take action on a wide range of issues, and provide a forum for its 193 Member States to express their views, through the various organs of the United Nations.

“Peace is not just a coloured ribbon. It's more than a wristband or a t-shirt. It's not just a donation or a 5 K race. It's not just a folk song, or a white dove. And peace is certainly more than a celebrity endorsement. Peace is a fulltime job. It's protecting civilians, overseeing elections, and disarming ex-combatants. The UN has over 100,000 Peacekeepers on the ground, in places others can't or won't go, doing things others can't or won't do. Peace, like war, must be waged.” -- George Clooney

The Charter of the United Nations under Article 7 of Chapter III defines the establishment of the main organs, i.e.,the backbone of the United Nations.

Article 7 under chapter III

There are established as principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice and a Secretariat.

Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.[ii]

The various organs of the United Nations are

The UN General Assembly (UNGA) under Chapter IV-

The General Assembly is the largest organ of the United Nations, located in the New York City of the United States of America. It is that part of the UN that includes all the member states of the organisation, treats them with equal respect and gives all of them an equal chance to present their view through the one member state, one vote policy.

Functions of the General Assembly

  1. Maintenance of international peace and security (Article 11)
  2. Initiate studies and make recommendations for development of International law and its codification; promote international co-operation in the economic, social, cultural, educational, and health fields; human rights and freedom against discriminations of all kinds. (Article 13)
  3. Approval of the budget of the Organization. (Article 17)
  4. Election and selection of the member states in the other organs of the UN. (Article 18)


The Security Council under Chapter V-

The security Council, according to Article 23, consists of 15 member states of the UN. The Republic of China, France, union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America are the permanent members of the Security Council. The General Assembly elects ten other Members of the United Nations to be non-permanent members of the Security Council and are elected for a term of two years.

Functions and powers of the Security Council-

  1. Primarily responsible for maintaining international peace and security. (Article 24)
  2. Decisions are a binding force upon the UN member states. (Article 25)
  3. Can take military action for enforcement of and fulfilment of international peace and security. (Article 26)


The Economic and Social Council(ECOSOC) under Chapter X-

The Economic and Social Council shall consist of fifty-four Members of the United Nations elected by the General Assembly, for a term of 3 years; as directed by Article 61.

Functions and powers of the Economic and Social Council:

  1. Makes or initiates studies and reports with respect to international economic, social, cultural, educational and health related matters; promoting human rights and fundamental freedoms for all. (Article 62)
     
  2. May co-ordinate the functions of the agencies that may be brought into relationship with the United Nations by them, for the welfare. (Article 63)
     
  3. May take appropriate steps to obtain regular reports from the specialized agencies.


The Trusteeship Council under Chapter XIII-

Article 86 exhibits that the Trusteeship Council includes the members administering the trust territories. The permanent member states of the Security Council build up the Trusteeship Council.
Functions and powers of the Trusteeship Council-

  1. Accept reports and petitions by the administering authority and examine them.; periodical visits to these trust territories. (Article 87)
  2. To formulate a questionnaire on political, economic, social and educational advancement of the inhabitants of each trust territory. (Article 88)
  3. When appropriate, avail itself of the assistance of the Economic and Social Council and of the specialized agencies in regard to matters with which they are respectively concerned. (Article 91)
     

The International Court of Justice under Chapter XIV-

The International Court of Justice, located in The Hague, Netherlands, is the principal judicial organ of the United Nations.

Functions and powers of the International Court of Justice-

  1. Member states are obligatorily to adhere to the decisions of the International Court of Justice. (Article 94)
  2. The ICJ settles the legal disputes between the member states. (Article 95)
  3. Gives advisory opinion on legal questions to the General Assembly or the Security Council or to the specialized agencies on their request. (Article 96)


The Secretariat under Chapter XV-

The Secretariat is the principal administrative department of the UN. It is headed by the Secretary-General appointed by the General Assembly on the recommendation of the Security Council for a term of five years. He can be re-­elected. The staff of the Secretariat is appointed by the Secretary-General. They are chosen from among the 192 member countries.

Functions and powers of The Secretariat:

  1. Advises on the issues that may threaten the maintenance of international peace and security. (Article 99)
     
  2. Organises conferences, oversees peace­keeping operations, drafts reports on economic and social trends, prepares studies on human rights, mediates in international disputes and prepares budget estimates.

It is through the vision, hard work and dedication of all the six organsworking intricately together towards achieving international peace for the welfare of all mankind, that the work of the United Nations reaches every corner of the globe.

Although best known for peacekeeping, peace building, conflict prevention and humanitarian assistance, there are many other ways the United Nations and its System (specialized agencies, funds and programmes) affect our lives and make the world a better place.

“By strengthening the three pillars of the United Nations - security, development and human rights - we can build a more peaceful, more prosperous and more just world for our succeeding generations.”-Ban Ki-moon

The Organization works on a broad range of fundamental issues, from sustainable development, environment and refugees protection, disaster relief, counter terrorism, disarmament and non-proliferation, to promoting democracy, human rights, gender equality and the advancement of women, governance, economic and social development and international health, clearing landmines, expanding food production, and more, in order to achieve its goals and coordinate efforts for a safer world for this and future generations.

The UN has 4 main purposes under Article 1 of its defined Charter

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Global law and the United Nations:

Global Law Is a Multicultural, Multinational and Multidisciplinary Legal Phenomenon. [iii]

John Rawls's Law of Peoples was an especially important work and greatly stimulated thinking about different models of global law. Several questions soon became prominent in discussions including: What principles should guide international action? What responsibilities do we have to the global poor? Should global inequality be morally troubling? Are there types of non-liberal people who should be tolerated? What kind of foreign policy is consistent with liberal values? Is a “realistic utopia” possible in the global domain? How might we transition effectively towards a less unjust world?

In the domain of global law, theorists do not seek primarily to define law between states or nations. Rather they drill down through the state shell and inquire about what justice among human beings consists in.

Global law is a vast term which does not have any specific meaning or definition attached to it. It includes areas such as comparative law, international law (public and private) and others. ­­It allows individuals, groups of individuals, corporations, and non-governmental organizations to bring claims before international jurisdictions.

In The Law of Peoples, John Rawls argues for eight principles that he believes should regulate international interactions of peoples which acknowledge people's independence and equality, that peoples have the right to self-determination along with having duties of non-intervention, that they ought to observe treaties, honour a particular list of human rights, should conduct themselves in certain appropriate ways if they engage in warfare, and that they have duties to assist other peoples in establishing institutions to enable people's self-determination. He also advocates for international institutions governing trade, borrowing, and other international matters that are characteristically dealt with by the United Nations.

The organs of the United Nations like the World Bank, International Monetary Fund, World Health Organisation World Intellectual Property Organization, or the United Nations Industrial Development Organization contribute to the emergence of norms, rules, or practices of direct relevance to the development of global law.

1. International Law Commission

The work that led to the International Law Commission was begun in the Resolution of the Assembly of the League of Nations on 22 September 1924, which established the Committee of Experts for the Progressive Codification of International Law.

The International Law Commission was established by the General Assembly in 1947 to promote the progressive development of international law and its codification. The Commission is composed of 34 members who collectively represent the worlds principal legal systems, and serve as experts in their individual capacity, not as representatives of their governments.

Paragraph 1 of Article 13 states that

  1. The General Assembly shall initiate studies and make recommendations for the purpose of:
    1. promoting international co-operation in the political field and encouraging the progressive development of international law and its codification;
       
    2. promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.


They address a wide range of issues relevant to the regulation of relations among states, and frequently consult with the International Committee of the Red Cross, the International Court of Justice and UN specialized agencies, depending on the subject being examined. Most of the Commission's work involves the preparation of drafts on aspects of international law.

Some topics are chosen by the Commission, others are referred to it by the General Assembly.

When the Commission completes work on a topic, the General Assembly sometimes convenes an international conference of plenipotentiaries to incorporate the draft into a convention. The convention is then opened to states to become parties—meaning that such countries formally agree to be bound by its provisions. Some of these conventions form the very foundation of the law governing relations among states.

Examples include:

  • The Convention on the Non-navigational Uses of International Watercourses, adopted by the General Assembly in 1997, which regulates the equitable and reasonable utilization of watercourses shared by two or more countries;
     
  • The Convention on the Law of Treaties between States and International Organizations or between International Organizations, adopted at a conference in Vienna in 1986;
     
  • The Convention on the Succession of States in Respect of State Property, Archives and Debts, adopted at a conference in Vienna in 1983;
     
  • The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly in 1973;


For more than sixty years, however, the Commission has worked almost exclusively in the field of public international law. In 1996, the Commission noted that in recent years it had not entered the field of private international law, except incidentally and in the course of work on subjects of public international law; moreover, it seemed unlikely that the Commission would be called upon to do so having regard to the work of bodies such as the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law.

The Commission has worked extensively in the field of international criminal law, beginning with the formulation of the Nürnberg principles and the consideration of the question of international criminal jurisdiction at its first session, in 1949, which culminated in the completion of the draft Statute for an International Criminal Court at its forty-sixth session, in 1994, and the draft Code of Crimes against the Peace and Security of Mankind at its forty-eighth session, in 1996.

At its sixty-seventh session, in 2014, the Commission adopted the final report on the topic “the obligation to extradite or prosecute (autdedereaut judicare)”. At the same session, the Commission decided to include the topic “Crimes against humanity” in its programme of work.

2. International humanitarian law

International humanitarian law (IHL) is the law that regulates the conduct of war (jus in bello). It is that branch of international law which seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities, and by restricting and regulating the means and methods of warfare available to combatants.

IHL is inspired by considerations of humanity and the mitigation of human suffering. "It comprises a set of rules, established by treaty or custom, that seeks to protect persons and property/objects that are (or may be) affected by armed conflict and limits the rights of parties to a conflict to use methods and means of warfare of their choice". It includes "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law".

It defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning non-combatants. It is designed to balance humanitarian concerns and military necessity, and subjects warfare to the rule of law by limiting its destructive effect and mitigating human suffering.

a more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict and military occupation (i.e., IHL) or to certain groups of people including refugees (e.g., the 1951 Refugee Convention), children (the 1989 Convention on the Rights of the Child), prisoners of war (the 1949 Third Geneva Convention) and two additional protocols concluded in 1977 under the auspices of the International Committee of the Red Cross.

The United Nations has taken a leading role in efforts to advance international humanitarian law. The Security Council has become increasingly involved in protecting civilians in armed conflict, promoting human rights and protecting children in wars.

Basic rules of IHL:

  1. Persons who are hors de combat (outside of combat), and those who are not taking part in hostilities in situation of armed conflict (e.g., neutral nationals), shall be protected in all circumstances.
  2. The wounded and the sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the "Red Cross", or of the "Red Crescent," shall be required to be respected as the sign of protection.
  3. Captured persons must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
  4. No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
  5. Parties to a conflict do not have an unlimited choice of methods and means of warfare.
  6. Parties to a conflict shall at all times distinguish between combatants and non-combatants. Attacks shall be directed solely against legitimate military targets.


Examples-
Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a red cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that, being considered the flag of truce, indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or the white flag are expected to maintain neutrality, and may not engage in warlike acts themselves; engaging in war activities under a white flag or a red cross is itself a violation of the laws of war.

These examples of the laws of war address:

  • Declarations of war;
  • Acceptance of surrender;
  • The treatment of prisoners of war;
  • The avoidance of atrocities;
  • The prohibition on deliberately attacking non-combatants; and
  • The prohibition of certain inhumane weapons.

It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge, and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages.

3. The Rule of Law

Promoting the rule of law at the national and international levels is at the heart of the United Nations' mission. Establishing respect for the rule of law is fundamental to achieving a durable peace in the aftermath of conflict, to the effective protection of human rights, and to sustained economic progress and development.

The principle that everyone – from the individual to the State itself- is accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, is a fundamental concept which drives much of the United Nations work. The main United Nations organs, including the General Assembly and the Security Council, play essential roles in supporting Member States to strengthen the rule of law, as do many United Nations entities.

The United Nations Security Council has framed a report of the Secretary-General “The rule of law and transitional justice in conflict and post-conflict societies” (S/2004/616) which states that-
The rule of law is:
“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”

The concept of the rule of law is embedded in the Charter of the United Nations. The Preamble of the Charter statesas one of the aims of the UN-
To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.

In addition, Article 1 under Chapter I states that-
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

The Universal Declaration of Human Rights of 1948 also gives the rule of law a central place, stating that-
Whereas disregard and contempt for human rights have resulted in barbar- ous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

Responsibility for the overall coordination of rule of law work by the United Nations system rests with the Rule of Law Coordination and Resource Group, chaired by the Deputy Secretary-General and supported by the Rule of Law Unit. Members of the Group are the principals of 20 United Nations entities engaged in supporting Member States to strengthen the rule of law. Providing support from headquarters to rule of law activities at the national level, the Secretary-General designated the Department of Peacekeeping Operations (DPKO) and the United Nations Development Programme (UNDP) as the joint global focal point for the police, justice and corrections areas in the rule of law in post-conflict and other crisis situations.

Recognising the central place of the rule of law, the General Assembly at its 67th Session, held a High-level Meeting on 24 September 2012. This was a unique occasion for all Member States, non-governmental organisations and civil society represented at the highest level, to commit to strengthening the rule of law. The High-level meeting concluded with the adoption by consensus of a Declaration in which Member States reaffirmed their commitment to the rule of law and elaborated on the efforts required to uphold different aspects of the rule of law.
The 67/1.

Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels states that-
We recognize that the rule of law applies to all States equally, and to international organizations, including the United Nations and its principal organs, and that respect for and promotion of the rule of law and justice should guide all of their activities and accord predictability and legitimacy to their actions. We also recognize that all persons, institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law.

We reaffirm that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.

The United Nations have been involved in the department of Justice as well

  1. International Court of Justice
    The primary United Nations organ for the settlement of disputes is the International Court of Justice. Also known as the World Court, it was founded in 1946. Since its founding, the Court has considered over 160 cases, issued numerous judgments on disputes brought to it by states and issued advisory opinions in response to requests by UN organizations. Most cases have been dealt with by the full Court, but since 1981 six cases have been referred to special chambers at the request of the parties.

    In its judgments, the Court has addressed international disputes involving economic rights, rights of passage, the non-use of force, non-interference in the internal affairs of states, diplomatic relations, hostage-taking, the right of asylum and nationality. States bring such disputes before the Court in search of an impartial solution to their differences on the basis of law. By achieving peaceful settlement on such questions as land frontiers, maritime boundaries and territorial sovereignty, the Court has often helped to prevent the escalation of disputes.
     
  2. International Criminal Justice
    The international community has had long aspired to create a permanent international court to try the most serious international crimes, and, in the 20th century, it reached consensus on definitions of genocide, crimes against humanity and war crimes.
     
  3. Tribunals
    After the Second World War the Nuremberg and Tokyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War.

    The ad hoc tribunals and United Nations-assisted tribunals have continued to contribute to combating impunity and promoting accountability for the most serious crimes. In the 1990s, after the end of the Cold War, the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) were established to try crimes committed within a specific time-frame and during a specific conflict. This applies, as well, to three courts established by the states concerned, but with substantial UN support: the Special Court for Sierra Leone (2002), the Extraordinary Chambers in the Courts of Cambodia (2006) and the Special Tribunal for Lebanon (2007). Sometimes referred to as ‘hybrid' courts, they are non-permanent institutions which will cease to exist once all their cases have been heard.
     
  4. The International Criminal Court
    The idea of a permanent international court to prosecute crimes against humanity was first considered at the United Nations in the context of the adoption of the Genocide Convention of 1948. For many years, differences of opinions forestalled further developments. In 1992, the General Assembly directed the International Law Commission to prepare a draft statute for such a court. The massacres in Cambodia, the former Yugoslavia and Rwanda made the need for it even more urgent.

The International Criminal Court (ICC) has jurisdiction to prosecute individuals who commit genocide, war crimes and crimes against humanity. It will also have jurisdiction over the crime of aggression when agreement is reached on the definition of such a crime. The ICC is legally and functionally independent from the United Nations, and is not a part of the UN system.

The cooperation between the UN and the ICC is governed by a Negotiated Relationship Agreement. The Security Council can initiate proceedings before the ICC, and can refer to the ICC situations that would not otherwise fall under the Court's jurisdiction. The Court has 18 judges, elected by the states parties for a term limited to nine years, except that a judge shall remain in office to complete any trial or appeal which has already begun. No two judges can be from the same country.

“In an era when all societies must come together to respond to the common challenges facing humankind, such as poverty and environmental destruction, military spending has absorbed far too much of the world's limited human and economic resources. Nuclear weapons, in particular, are a fundamental evil that cannot resolve in any way the complex of global issues, but only exacerbate them.”
Daisaku Ikeda
Toward a New Era of Value Creation
Peace Proposal 2010

End-Notes:

  1. http://www.un.org/en/sections/un-charter/preamble/index.html
  2. https://www.un.org/en/sections/un-charter/chapter-iii/index.html.
  3. Pierrick Le Golf, Vol. 14: Iss. 1, Article 7, Indiana Journal of Global Legal Studies (2007), https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1347&context=ijgls.

Written by- Reeya Khanna, BA.LLB 2nd Year

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Increased Age For Girls Marriage

Titile

It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

Facade of Social Media

Titile

One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Sexually Provocative Outfit Statement In...

Titile

Wednesday, Live Law reported that a Kerala court ruled that the Indian Penal Code Section 354, ...

UP Population Control Bill

Titile

Population control is a massive problem in our country therefore in view of this problem the Ut...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly