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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 262
March 24, 2012

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Lawness of International law

Photo: intaadvising.gatech.edu.

The people of primitive age are thought to be uncivilized and we, the people of this century, firmly believe ourselves to be civilized. The factors, which make ourselves civilized and lacking which the primitive people are thought to be uncivilized, should be reviewed. If the factors are advancement in education, science and technology, I will have no hesitation to comply with this putative concept of our being civilized. But if those factors are the mentality and capacity to recognize the rights of others or to live all persons socially and friendly and above all having and complying with some laws, rules and regulations, I cannot say easily that we are now civilized.

Having no law, as it was in the primitive age, is I think better than to have bundles of laws, as it is today, in the hand of some powerful as a tool of oppression to suppress the weak. The frequent violation of law, specially international law, urges us to review the question “whether we are really civilized and international is really a law or not”. Very often some objections are made as to the lawness of international law. International law is not law in the true sense of the term as there is no determinate superior political authority or sovereign authority to make and enforce international law. International law lacks effective legislative machinery, an executive machinery, potent judiciary and above all the sanction which is necessary for the enforcement of law. International law is lifeless from the standpoint of law proper and attempt to clothe it with legal garments is like dressing a dead woman for attending a banquet hall. The term 'law of war' is a mockery. When arms speak law must be silent. Law leans on reason but war is a play with passion. How can there be reason in passion?

When these objections are made as to the lawness of the international law it is argued that to deny International law on the ground of frequent violation of war laws is like declaring a man dead when a part of his body is temporarily paralyzed into inaction, because the law of war is not the whole but a part of the international law. It is right that the law of war is frequently violated but in every case of violation, we see, attempts are made to justify these violations in terms of law and in most of the cases by the legal arguments of reprisals. It is further argued that to understand war as lawlessness is to misread the nature of war under international law. War is not divorced from law rather it has an ally in law. War minus law is clear murder; war with law is the regulated use of force to gain particular ends. To rebut the argument that there is no sanction in international law it is said that Articles 39 to 42, 51 and 94 of UN Charter work as sanction in international law. When the debate as to the lawness of international law is in this stage it can be said that international law is really law but compared to that of national law it is weaker for less effective enforcement mechanism.

The Articles of UN Charter under which enforcement of international law is formulated to be ensured are subject to the fulfillment of some conditions which frustrate the very purpose of these Articles. One of the fundamental objectives of UN Charter, as mentioned in Article 1(1), is to restore and maintain international peace and security. Where there is a breach of or threat to international peace and security the Security Council can take necessary measures, including calling upon the concerned states, complete or partial interruption of economic relations, severance of diplomatic relations and even demonstration, blockade and other operations by air, sea and land forces under Articles 40 to 42, to restore and maintain international peace and security. The application of these good provisions to enforce international law is subject to the subjective satisfaction of the Security Council. We know before passing any resolution it must be supported by the votes of all the permanent members of the Security Council and three additional votes of remaining temporary members of the Security Council. If any of the permanent members veto a resolution it will not come into light how much ever humanitarian proposal may be there. Practical problem is here that when the interest of the permanent members of the Security Council is involved in any resolution they feel reluctance to give effect to Articles 40 to 42 and thereby causes impasse to the international law itself. It is evident from the invasion of USA in Iraq and Afganistan where USA continuously disregarded the established principles of international law. But here the Security Council failed to take any attempt to stymie USA from showing thumb to the international law. It was for that one of the party involved in that war was a permanent member of Security Council i.e. USA. This state violated every established norms and principles of International Humanitarian Law (IHL) including principle of distinction, proportionality and precaution enumerated in the Geneva Conventions 1949 of which USA was a party.

So, when the permanent members of Security Council hold the unilateral power to take any decision under UN Charter it seems to some extent that international law itself is the mercy of some powerful states. They can apply it in any ways they like. To attain the objectives of UN Charter and to stop perfidy by international law with the less powerful states, world community should come forward to unfetter UN Charter from the autocratic control of the permanent members of the Security Council, specially USA.

Amdadul hoque
Student of Law , University of Dhaka.

Racism is still igniting and fuelling violence and conflict

Racism, racial discrimination, xenophobia and related intolerance are often among the root causes of internal and international conflicts, including armed conflicts, due to the marginalization, discrimination and sometimes dehumanization that they foster within societies and between population groups, stated two United Nations experts in the fields of racism and minority issues on the International Day for the Elimination of Racial Discrimination, which is commemorated on 21 March.

“The struggle against racism must be intensified and given higher priority by all States and at all levels as a key human rights objective and a means to prevent conflict and maintain peace,” said the experts.

The United Nations experts stated that “racism continues to be a major obstacle to friendly and peaceful relations among peoples and nations. Similarly the absence of democratic structures, the weakness of the rule of law, and political institutions which are not representative of the entire population, may in the long run contribute to triggering conflicts along group lines, if not handled in an adequate and comprehensive manner.”

“All relevant actors should pay attention to early warning signs, including the marginalization and social exclusion of specific groups of individuals; discriminatory legislation and policies; the persistence of racial prejudice and negative stereotypes; hate speech by public officials and the media; and violent attacks and harassment targeting ethnic groups,” said Mutuma Ruteere, the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.

According to the United Nations experts, greater attention to prevention is essential and early action is needed in response to the first warning signs of tensions caused by racism and discrimination that may lead to violence and conflict situation with serious violations of human rights.

“Ensuring equality for all in the enjoyment of civil, cultural, economic, social and political rights including the rights of minorities, without any discrimination based on race, colour, descent, national or ethnic origin is indeed one effective way through which a State may prevent and address the rise of tension and conflict. Good governance, democracy, respect for the rule of law, and meaningful participation of minorities in political institutions are also essential to prevent and defuse tensions which may lead to situations of conflict,” stated Ms. Rita Izsák, the United Nations' Independent Expert on minority issues.

Ms. Izsák and Mr. Ruteere drew attention to the important role of non-States actors including civil society, the media, national human rights institutions, and political parties. Indeed these non-State actors can serve as watchdogs for discriminatory government policies and play an important role in the promotion of tolerance, mutual understanding and respect for diversity.

In post conflict situations, the participation of and genuine dialogue among all components of society are also critical to consolidate the often fragile peace. Justice, truth and reconciliation mechanisms to deal with the legacies of the grave human rights violations committed during conflicts are also crucial. There can be no sustainable peace if justice is neglected and the suffering of the victims denied. Those responsible for serious human rights violations, including war crimes, genocide, ethnic cleansing, and crimes against humanity must be prosecuted and sanctioned.

Ms. Izsák and Mr. Ruteere emphasize the key responsibility of the international community including the United Nations, in detecting early warning signs of racism, xenophobia, intolerance and racial discrimination that may ultimately lead to conflict. “While each State has the responsibility to protect its population from gross human rights violations, in cases where a State fails or refuses to protect its population, the responsibility to protect of the international community is vital,” stressed the UN experts.

Source: Hrea.org.




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