Law Optional (United Nations: Its principal organs, powers and functions, and reforms) by Rajnish Jindal

Model Answer

Question #1. Discuss the needs for reforms needed in the United Nations to strengthen its legitimacy, representativeness and relevance in order to address the realities of the contemporary times in light of role of India.  10 marks (150 words)

The United Nations was established following the after-effects of the World War II devastation and marks its seventy-seventh year in 2023. This comes at a time when the international institutions are burdened by increasing responsibilities in the domains of conflict management and the need to foster cooperation at a global level. The debate over the methods of strengthening and reforming the United Nations is thus more relevant than ever at this juncture. The United Nations is at a fork in the road. Unlike its predecessor, the League of Nations, it has survived and prospered in its seventy-six years as the world’s largest and most representative international agency. However, it is currently beset by a slew of problems, including gross underfunding, bloated bureaucracy, divisiveness, and geopolitical competition among the Security Council’s permanent members. These and other difficulties reduce its effectiveness and make it less relevant.

The reform of the UN has been on the agenda ever since the organization’s conception in 1945. The organization’s greatest challenge - one that has frequently prevented it from acting decisively on major global issues - is intransigence among the Security Council’s permanent members. As a result, reforming the Security Council to make it more inclusive, representative, transparent, and effective, as well as demonstrating better cooperation and consensus-building, is vital to the UN’s overall performance. This is also needed to reflect the changed power distribution in today’s world and tackle inaction by veto.

The Security Council, as it currently stands in terms of membership, functions, and powers, is unable to adequately respond to the world’s numerous problems. Despite the fact that its permanent members have shown little interest in internal reform over the years, it is in the interests of other UN member states as well as civil society to continue to strive for it. As powerful countries drift toward unilateralism, populism, and nationalism at the expense of multilateralism and collective action, a united and forward-thinking Security Council is a requirement.

India has been at the forefront of demanding reform in the UN, particularly its principal organ, the Security Council, for decades, staking its claim as one of the world’s largest economies and most populous countries, with a track record in promoting a rules-based international order, and contributing to peacekeeping through UN forces. The UN was born in the crisis of the World War era, and the realities of that time can hardly be compared to the present. The UNSC’s permanent, veto-carrying members, chosen by virtue of being “winners” of World War II - the U.S., the U.K., France, Russia, and later China  - can hardly claim adequate representation of the world’s leadership today. The UNSC does not include a permanent member from the African, Australian, and South American continents, and the pillars of the multilateral order, such as the G-4 group of Brazil, India, Germany, and Japan, have been ignored for a long time. There are other, more representative options available, and this has been the crux of the change fight. Furthermore, because the UN’s membership is deeply polarised, decisions are either not made or ignored. Frequently occurring divisions among the UNSC P-5 result in critical decisions being stalled. These concerns are highlighted in a year when the coronavirus pandemic has brought the world to a halt, yet the UN, UNSC, and WHO have failed to play an effective role in assisting countries in dealing with the outbreak.

One of the major issue for India is that, despite the dysfunctional power balance that exists, the UN’s reform process, which is conducted through Inter Governmental Negotiations (IGN), has not progressed despite commitments over decades. The UN has decided to “rollover” the IGN’s discussions, which are focused on five major issues: enlarging the Security Council, membership categories, the veto power wielded by five Permanent Members of the UNSC, regional representation, and redistributing the Security Council-General Assembly power balance.

The international system is essentially a collection of nation states, and major-power competition continues to drive world politics. In this scenario, UN reform, both structural and functional, will undoubtedly be a long and winding road filled with complaints and disappointments. It will, at the very least, create a public venue for governments to interact and seek cooperation, one whose legitimacy cannot be questioned. The overlapping shortcomings of many nations and international institutions in dealing with the coronavirus pandemic—both the failure to stop COVID-19’s spread and the inability to minimise its economic and political consequences. Another factor is the lack of action on the rising tensions between the United States and China.

In hindsight, a concert of powers may be the most fundamental prerequisite for an effective global institution. The Concert of Europe in the nineteenth century, the League of Nations after World War I, and the United Nations after World War II were all examples of this. Any international entity that lacks such coordination between key nations becomes dysfunctional or paralysed. The United Nations’ main objective should therefore be to prevent a new cold war between the United States and China, which would further divide the UN and the globe into rival camps. If the UN has to represent larger humanity, an essential prerequisite would be for it would be to devise an adequate response in order to tackle the challenges of climate change, arms control, poverty reduction, antiterrorism, arms control and disarmament, non-proliferation, and regional security.

Another important aspect that must be on the United Nations’ reform agenda is rebuilding its legitimacy from the ground up. The irony should not be lost on anyone that, at a time when proponents of the United Nations believe that multilateral approaches are more important than ever, faith in multilateralism is at an all-time low. When the globe rose from the ashes of World War II, it looked vastly different economically, socially, and technologically. The power balance has also shifted dramatically. Global institutions must adapt to these developments or risk losing credibility in the eyes of new participants, whether governments or citizens. They have often been targeted for being the cause of domestic problems. Despite the fact that this is not their fault, scapegoating would be significantly more challenging if these institutions were actively and openly demonstrating their merit.

To remain relevant, the world must evolve in both strategic and functional ways. It is also vital that the United Nations embraces the diversity of regional actors aiming to aid national governments and international institutions in maintaining the global order and achieving peace. It will only be able to meet the UN Charter’s primary purpose of preserving future generations from the scourge of war by adapting and evolving with the passage of time.

The UN’s collective power must also be synergised with its efforts in ensuring greater representation of non-security council countries. Its charter is a visionary document, and it has stood the test of time for three-quarters of a century. The UN remains one of its kind in providing a platform for initiating dialogue and action. However, long term reforms of the UN will require a tremendous amount of time, effort, money, and leadership. It will also demand a new agreement between the UN and the general public, as the UN’s legitimacy and power will become increasingly reliant on a sense of ownership. Individual states no longer have the ability to identify problems, formulate policies, and implement change in today’s complex environment. It needs the participation of a diverse set of players, including organisations, grassroots organisations, corporations, and local governments. Getting inclusivity right and switching to a fairer governance style will be critical in weathering power politics and delivering for everybody.

Question #2. “The rules of the humanitarian law of war have clearly acquired the status of jus cogens’, for they are the fundamental rules of a humanitarian character, from which no derogation is possible without negating the basic considerations of humanity which they are intended to protect.” Evaluate the above statement and also point out the major distinction between humanitarian law and law relating to human rights. 15 marks (250 words)

International Humanitarian Law (IHL), also known as the law of war, law of armed conflict or the jus in bello, is the body of international law that applies in armed conflict. IHL accepts that parties to an armed conflict will need to use force to ‘win the war’ and that this will likely result in some death and destruction. To minimise this likely harm, IHL regulates how wars are fought. In addition to prescribing laws governing resort to force (jus ad bellum), international law also seeks to regulate the conduct of hostilities (jus in bello). These principles cover, for example, the treatment of prisoners of war, civilians in occupied territory, sick and wounded personnel, prohibited methods of warfare and human rights in situations of conflict. This subject was originally termed the laws of war and then the laws of armed conflict. More recently, it has been called international humanitarian law.

IHL is one of the oldest bodies of modern international law, with the first treaties entering into force in the mid-nineteenth century. Two of these original treaties reflect the two driving premises described above. Henry Dunant for the first time in 1862 came ahead and published Un Souvenir de Solférino as he was deeply moved by the battle fought in Solférino and it’s consequences along with proposing that nations at war during the wartime should mandatorily form some kind of relief societies or temporary nursing facilities to provide due care to the wounded soldiers and citizens. This exact incident first led towards establishing the International Red Cross in 1863 and then Geneva Conventions in 1864.  The first, the Geneva Convention of 1864, protected those injured on the battlefield. It also provided the legal basis for the provision of medical aid and the protection of those providing it. The second, the 1868 St Petersburg Declaration, introduced the first restriction on the use of a weapon for humanitarian reasons and founded the prohibition on unnecessary suffering. Although The first attempt to bring together existing laws and customs of war in a document, and to impose them on an army in battle, was the “Lieber Code” (1863). This was intended solely for Union soldiers fighting in the American Civil War, and as such did not have the status of a treaty. In 1864 the first Geneva Convention “for the Amelioration of the Condition of the Wounded in Armies in the Field”, for the first time introduced the idea of having an IHL and also explained the need of having the same. The first Geneva Convention was a success as twelve nations came together agreeing on certain principles and rules to maintain during wartime along with agreeing to guarantee neutrality to medical personnel during war and signed the Convention. In that same convention, they also adopted a special emblem to mark this togetherness of the nations and this emblem, later on, became the symbol of the International Red Cross Society in 1870.

After the first Geneva Convention, The Hague Peace Conferences in 1899 and 1907 led to The Hague Conventions which worked and implementations of various international treaties introduced in the previously held Peace Conferences to govern the conduct of war. There were many Principles or Rules or limitations on armaments among the countries at war during the wartime was put up as proposals and based on the votes of the countries present at the conventions they were included as terms in the international treaties between the countries at war, for example, a prohibition on the use of air bombs and chemical warfare was proposed as it the consequences of using such weapons was previously observed. In conclusion, these two Conventions laid down a basic practice of having meetings with representatives from multiple Nations and discuss the interstate policies and form International Laws to be followed by all the present nations. These Conventions, in reality, paved the way for the formation of the League of Nations after World War I in 1919.

After World War II the governments adopted the four Geneva Conventions of 1949 rewriting the existing convention with the agenda of protecting civilians during warfare when they find themselves under the control of the enemy State. The Geneva Conventions of 1949 was adopted by every single Nation in the world and it was after the formation of the United Nations in the year 1945 the Protocols proposed, had a very broad acceptance and their provisions are considered as customary law to be implemented in the respective countries by the respective Governments.

The Geneva Conventions are a set of four treaties, formalised in 1949, and three additional protocols, the first two of which were formalised in 1977 and the third in 2005, which codify widely accepted ethical and legal international standards for humanitarian treatment of those impacted by any ongoing war. The focus of the Conventions is the treatment of non-combatants and prisoners of war, and not the use of conventional or biological and chemical weapons, the use of which is governed respectively by the Hague Conventions and the Geneva Protocol.

• The First Geneva Convention protects wounded and sick soldiers on land during war. This convention extends to medical and religious personnel, medical units, and medical transport. While recognising distinctive emblems of these organisations, the convention has two annexes containing a draft agreement relating to hospital zones and a model identity card for medical and religious personnel.
• The Second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war. This convention also extends to hospital ships and medical transports by sea, with specific commentary on the treatment of and protections for their personnel.
• The Third Geneva Convention applies to prisoners of war, including a wide range of general protections such as humane treatment, maintenance and equality across prisoners, conditions of captivity, questioning and evacuation of prisoners, transit camps, food, clothing, medicines, hygiene and right to religious, intellectual, and physical activities of prisoners.
• The Fourth Geneva Convention, which most imminently applies to the invasion of Ukraine by Russian military forces, protects civilians, including those in occupied territory. The other Geneva Conventions were concerned mainly with combatants rather than civilians. However, based on the experience of World War II, which demonstrated the horrific consequences of having no convention for the protection of civilians in wartime, the Fourth Convention comprising 159 articles outlines the norms for this critical dimension of conflict.
• Along with the Additional Protocols of 1977, the Fourth Convention expounds upon the general protection of populations against certain consequences of war, the conduct of hostilities and the status and treatment of protected persons, distinguishing between the situation of foreigners on the territory of one of the parties to the conflict and that of civilians in occupied territory. This convention also spells out the obligations of the occupying power vis-à-vis the civilian population and outlines detailed provisions on humanitarian relief for populations in occupied territory. As the International Committee for the Red Cross, a key medical intermediary in such situations, explains, this convention also contains a specific regime for the treatment of civilian internees, including three annexes on hospital and safety zones, and model regulations on humanitarian relief.

IHL vs IHR: IHL and international human rights law are complementary bodies of international law that share some of the same aims. Both IHL and human rights law strive to protect the lives, the health and the dignity of individuals, albeit from different angles – which is why, while very different in formulation, the essence of some of the rules is similar. For example, both IHL and human rights law prohibit torture or cruel treatment, prescribe basic rights for persons subject to criminal process, prohibit discrimination, contain provisions for the protection of women and children, and regulate aspects of the right to food and health. There are however important differences between them: their origins, the scope of their application, the bodies that implement them, and so on.

1. Origins: IHL, the origins of which are ancient, was codified in the second half of the 19^th century, under the influence of Henry Dunant, the founding father of the International Committee of the Red Cross.

IHR law is a more recent body of law. It had its origins in certain national human rights declarations influenced by the ideas of the Enlightenment (such as the United States Declaration of Independence in 1776 and the French Declaration of the Rights of Man and of the Citizen in 1789). It was only after the Second World War that human rights law emerged, under the auspices of the United Nations, as a branch of international law. The Universal Declaration of Human Rights of 1948 first defined human rights law at the international level in a non-binding General Assembly resolution. It was only in 1966 that this Declaration was translated into universal human rights treaties; the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 1966.

2. Temporal scope of application: While IHL applies exclusively in armed conflict, IHR applies, in principle, at all times, i.e. in peacetime and during armed conflict. However, unlike IHL, some human rights treaties permit governments to derogate from certain obligations during public emergencies that threaten the life of the nation. Derogation must, however, be necessary and proportional to the crisis, must not be introduced on a discriminatory basis and must not contravene other rules of international law – including provisions of IHL. Certain human rights can never be derogated from: among them, the right to life, the prohibition against torture or cruel, inhuman or degrading treatment or punishment, the prohibition against slavery and servitude and the prohibition against retroactive criminal laws.
3. Geographical scope of application: Another major difference between IHL and human rights law is their extraterritorial reach. That IHL governing international armed conflicts applies extraterritorially is not a subject of controversy, given that its purpose is to regulate the conduct of one or more States involved in an armed conflict on the territory of another. The same reasoning applies in non-international armed conflicts with an extraterritorial element: the parties to such conflicts cannot be absolved of their IHL obligations when the conflict reaches beyond the territory of a single State. Despite the views of a few important dissenters, it is widely accepted that human rights law applies extraterritorially based, inter alia, on decisions by regional and international courts. The precise extent of such application, however, is yet to be determined. Human rights bodies generally admit the extraterritorial application of human rights law when a State exercises control over a territory (e.g. occupation) or a person (e.g. detention). Human rights case law is unsettled, however, on the extraterritorial application of human rights norms governing the use of force.
4. Personal scope of application: IHL aims to protect persons who are not or are no longer taking direct part in hostilities. It protects civilians and combatants hors de combat, such as the wounded, the sick and the shipwrecked or prisoners of war. IHR law, developed primarily for peacetime, applies to all persons within the jurisdiction of a State. Unlike IHL, it does not distinguish between combatants and civilians or provide for categories of 'protected person'.
5. Parties bound by IHL and IHR law: IHL binds all parties to an armed conflict and thus establishes an equality of rights and obligations between the State and the non-State side for the benefit of everyone who may be affected by their conduct (an essentially 'horizontal' relationship). IHR law explicitly governs the relationship between a State and persons who are on its territory and/or subject to its jurisdiction (an essentially 'vertical' relationship), laying out the obligations of States vis-à-vis individuals across a wide spectrum of conduct. Thus, human rights law binds only States, as evidenced by the fact that human rights treaties and other sources of human rights standards do not create legal obligations for non-State armed groups. The reason for this is that most groups of this kind are unable to comply with the full range of obligations under human rights law because, unlike governments, they cannot carry out the functions on which the implementation of human rights norms is premised. There is a notable exception to this generalization about non-State armed groups: those cases in which a group, usually by virtue of stable control of territory, has the ability to act like a State authority and where its human rights responsibilities may therefore be recognized de facto.
6. Substantive scope of application: IHL and IHR law share common substantive rules (such as the prohibition of torture), but they also contain very different provisions. IHL deals with many issues that are outside the purview of human rights law, such as the status of 'combatants' and 'prisoners of war', the protection of the red cross and red crescent emblems and the legality of specific kinds of weapon. Similarly, IHR law deals with aspects of life that are not regulated by IHL, such as the freedom of the press, the right to assembly, to vote, to strike, and other matters. Furthermore, there are areas that are governed by both IHL and IHR law, but in different – and sometimes contradictory – ways. This is especially the case for the use of force and detention.

• Regarding the use of force, IHL rules on the conduct of hostilities recognize that the use of lethal force is inherent to waging war. This is because the ultimate aim of military operations is to prevail over the enemy's armed forces. Parties to an armed conflict are thus permitted, or at least are not legally barred from, attacking each other's military objectives, including enemy personnel. Violence directed against those targets is not prohibited by IHL, regardless of whether it is inflicted by a State or a non-State party to an armed conflict. Acts of violence against civilians and civilian objects – as well as indiscriminate attacks – are, by contrast, unlawful because one of the main purposes of IHL is to spare civilians and civilian objects the effects of hostilities; and, under IHL, precautions must be taken in order to minimize civilian losses. IHR law was conceived to protect persons from abuse by the State; it regulates, not the conduct of hostilities between parties to a conflict, but the manner in which force may be used in law enforcement. Law enforcement is predicated upon a 'capture-rather-than-kill' approach; the use of force must be the last resort for protecting life, when other means are ineffective or without promise of achieving the intended result, and must be strictly proportionate to the legitimate aim to be achieved (e.g. to prevent crime, to effect or assist in the lawful arrest of offenders or suspected offenders, and to maintain public order and security).
• Concerning detention, while both IHL and IHR law provide for rules on the humane treatment of detainees, on detention conditions and on fair trial rights, differences emerge when it comes to procedural safeguards in internment, i.e. the non-criminal detention of a person based on the seriousness of the threat that his or her activity poses to the security of the detaining authority. Internment is not prohibited during armed conflict and, in general, a judicial review of the lawfulness of the detention is not required under IHL. Outside armed conflict, noncriminal (i.e. administrative) detention is highly unusual. In the vast majority of cases, people are deprived of their liberty because they are suspected of having committed a criminal offence. The International Covenant on Civil and Political Rights guarantees the right to liberty of person and provides that every individual who has been detained, for whatever reason, has the right to judicial review of the lawfulness of his or her detention. This area of human rights law is based on the assumption that the courts are functioning, that the judicial system is capable of absorbing all persons arrested at any given time regardless of their numbers, that legal counsel is available, that law enforcement officials have the capacity to perform their tasks, etc. Circumstances are very different during armed conflict, which is reflected in the provisions of IHL.

The interplay of IHL and IHR law remains the subject of much legal attention, particularly because of its consequences for the conduct of military operations. In its very first statement on the application of human rights in situations of armed conflict, the 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice observed that the protection provided by the International Covenant on Civil and Political Rights did not cease in times of war and that, in principle, the right not to be arbitrarily deprived of one's life applied also in hostilities. The Court added that what constituted arbitrary deprivation of life had to be determined by the applicable lex specialis, namely, the law applicable in armed conflict, which is designed to regulate the conduct of hostilities.

This statement has generally been interpreted as settling the issue of the interplay of IHL and IHR law and as implying that IHR law, deemed to apply at all times, constitutes the lex generalis, while IHL, whose application is triggered by the occurrence of armed conflict, constitutes the lex specialis. In other words, when human rights law and IHL are in conflict, the latter is deemed to prevail, since it was conceived specifically to deal with armed conflict.

While the meaning and even the utility of the doctrine of lex specialis have been called into question, there is a general acceptance of its indispensability for determining the interplay of IHL and IHR law. Although, generally speaking, these two branches of international law are complementary, the notion of complementarity cannot resolve the intricate legal issues of interplay that sometimes arise. In some instance, IHL and IHR rules might produce conflicting results when applied to the same facts because they reflect the different circumstances for which they were primarily developed.