ICJ's Work on the Fundamental Rights and Duties of States & Its Discontinuity
Bhavana J Sekhar, Research Supervisor,
History of Resolution 178(II) (1947)
Through the resolution of 178(II) on 21St November 1947, General Assembly observed that very few noticeable observations were made from the Rights and duties specified by the Panama draft declaration and accordingly requested the Secretary-General to gather the comments and recommendations of the states on the rights and duties of the state. It also mandated the International law commission to study this in detail and prepare a draft declaration of the same through the assistance of the relevant documents upon the aforementioned subject matter.
However, very few member states made contributions towards the draft declaration by providing their comments and observations. From this very few member states like the Governments of Denmark, Greece, Philippines, India, Mexico, United Kingdom have made substantially formulated comments and observations on the draft resolution.
During the discussions and the series of meetings of the International Law Commission in the year 1949, several representatives have posed an important question that could form the base for why the topic of Rights and Duties is discontinued. It is significant to implore the various arguments and criticisms put forth by various representatives when the meetings commenced.
The final draft declaration of the Rights and duties was finally submitted to the General Assembly through resolution 375(IV) which was finally concluded in the year 1949. It contained 14 Articles proposing the rights and duties of states. Articles 3,4,6,7,8,9,10,11,13, 14 carves out the duties of a state under International law.
The entire Draft resolution revolved around the Panamian draft which would have entirely not stood steadfast with the changing norms and policies of International law. Another significant mention or rather the lack of a mention is while the draft resolution elaborately mentions the list of duties and rights of the states but lacks to mention what the salient features of the state and nation would constitute to be. This is specifically important to mention during the era of the Cold war and the aftereffects of it on state sovereignty and intervention. If the powers and duties of the state were explained in the draft resolution, it is important to draw a conclusion of what the composition of a state and nation would include. An International legal system can only derive authority if the states defer to the creation of a system and acknowledgement of the governments that are supposed to be in a working consonance with International law. This was a concern that was raised during the various discussion concerning the draft resolution. By not making this mention, it fails to acknowledge if the International law recognizes states that are occupied through the use of force or not and what would remain the position of these states in the future.
The other point of concern with the Draft matter was it dealt with extensive questions of the rights and duties that can be imposed on the state that requires and involves exploring specific questions ranging from peaceful dispute settlement in both the legal sense and the non-legal sense by the deployment of the peacekeeping operations as mentioned under Article 33 of the UN charter. However, it fails to make a specific mention of the latter portion of the peacekeeping operations and non-legal operations that are undertaken by the UN.
There were several clauses that seemed to directly be enunciated and derived from the UN Charter which can be viewed from a simple reading from Article 9. Another notable mention of a possible flaw is while Article 6 mentions the basic Human rights, it fails to include the distinction on the basis of economic equality which raises a question as to how states and countries have aligned themselves according to the existing economic climate and the possible effects of globalization. In the present-day arrangement of states around the economic sphere, the failure to recognize equality in economic opportunity would only lead to further discrepancies.
Through the Resolution of 596(VI) in the year 1951, the response and comments by the member states were not very substantial. The matter had been postponed for a later time when the member states can make a comment and the majority of them have replied and made contributed substantial contributions. Member states can submit their proposals if they wish for the topic and the work on the Rights and duties should commence under Article 17 of the Statute of the International law Commission, 1947 by providing valuable suggestions and necessary changes and provide an appropriate procedure for the inchoation and resume discussions on the subject matter for the progressive development of the International law.
The probable reasons why the International Law Commission has abandoned the development over this specific topic of the rights and duties of the states is its failure to stand the test of time along with the progressive development of International law with ambiguous and incomplete mentions of various duties and rights that have already been codified in the present through various treaties and conventions. The draft that directly reflects the principles of the Panamian draft would remain historic in its essence and substance and would possibly not prove to be adequate and cater to the needs of the development of International law as it stands today. However, it remains a notable and significant document that specifically that demarcates the carefully discussed rights and duties of each state and form the basis of various legal conventions, treaties and intergovernmental bodies and agencies. The comments made during the draft resolution was made in the preparatory study concerning the rights and declaration of the states also raised these points of concerns along with the representatives of each state in the meetings of the International law commission.