International Law and the United Nations

Introduction & Logistics

• Technical Issues: Apologies for initial technical difficulties.

• Assignment Reminder: No plus or minus $10\%$ word limit. The given word limit applies strictly. No bibliography is required when following the New Zealand Law Style Guide.

• Moodle Content: Environmental law and related topics previously scheduled for this week have been moved to next week, as today's focus is primarily on the United Nations.

What is International Law?

• Definition: International law defines the legal responsibilities of states in their conduct with each other and their treatment of individuals within their state boundaries.

• Scope: Encompasses a wide range of international concerns, including:

  • Human rights

  • Disarmament

  • International crime

  • Refugees and migration

  • Problems of nationality

  • Treatment of prisoners

  • Use of force and conduct of war

  • Regulation of global commons: environment, sustainable development, international waters, outer space, global communications, and world trade.

• Specialist Areas (Examples):

  • Environmental law

  • Armed conflict

  • Human rights

  • Refugee law

  • International trade

  • Law of the sea

  • Outer space law

Historical Foundations of International Law

• Ancient Civilizations: Similarities of international law date back to ancient civilizations like Mesopotamia and Egypt, which had international agreements.

• Roman Empire - Jus Gentium: Developed the "law of peoples" (jus gentium), a universal set of principles applicable to both Romans and foreigners, contributing to the foundation of international law due to the empire's vast spread and interactions with diverse populations.

• Theoretical Developments (16th Century Onwards): Bilateral agreements, such as between the UK and Sweden in $1654$, were already developing.

• Pre-UN International Organizations: Even before the UN, specialized international organizations were forming:

  • Telegraph Union (now Telecommunications Institution)

  • Universal Postal Union

  • Interpol

• Customary Law: Early beginnings of unwritten international laws and conventions on how countries operated together emerged.

The League of Nations (Predecessor to the UN)

• Establishment: Formed after World War I (in the $1920s$) as the first intergovernmental organization to promote international cooperation, peace, and security.

• Failure: The outbreak of World War II demonstrated its insufficiency in preventing conflict, highlighting a lack of cooperation.

• Reasons for Failure:

  • Lack of Key Members: For example, the U.S. was not a member.

  • No Military Force: Unlike the UN, it lacked a mechanism for peacekeeping forces.

  • Unwillingness to Use Force.

  • Economic Depression: The Great Depression of the $1930s$ had a strong influence.

  • Weak Response to Aggression.

  • Growing Nationalism.

  • Unanimous Decision-Making: Required full agreement from all members, which was exceptionally difficult to achieve.

Establishment of the United Nations (UN)

• Timeline Towards Formation:

  • $1941$: Atlantic Charter.

  • $1942$: Declaration by the United Nations (early beginnings).

  • Conferences: Dumbarton Oaks, Yalta, Moscow, Tehran.

  • $1945$ (San Francisco): $50$ countries drafted and signed the UN Charter.

  • $1945$ (October $24$): UN Charter entered into force after ratification by the required number of nations.

• New Zealand's Role: New Zealand was an early contributor and signatory to the UN Charter in $1945$, playing a key role in its establishment.

Purpose and Goals of the United Nations

• Lessons from the Past: Learned from the failures of the League of Nations.

• Collective Security: A primary objective.

• Principles of International Relations: To foster and uphold these principles.

• Equality of Nations: To encompass and support all countries, both large and small, as emphasized in the Charter's preamble.

• Peaceful Dispute Resolution: Enable this for all countries.

• Social, Economic, and Cultural Development: Promote these aspects globally.

• Forum for Dialogue: Provide a platform for nations.

• Common Goal: Create unity among nations.

The UN Charter

• Core Purpose: Established to prevent the horrors of war, foster global cooperation after World War II, succeed the League of Nations, maintain peace and security, promote social/economic/cultural progress through collective action, and establish international relations rules.

• Guiding Treaty: Outlines the UN's purposes, principles, and 'organs' (structures/institutions).

• Preamble Analysis:

  • "We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind."

    • References both World War I and II, emphasizing their horrific nature and the need for global unity.

  • "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."

    • Human rights mentioned even before the formal declaration.

    • Explicitly notes the equal rights of men and women, reflecting the key roles women played in development processes. Equality was "baked in" from the beginning.

  • "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 and larger freedom."

    • Highlights a focus on social, economic, and cultural rights, a crucial aspect contrasting with the initial Western focus on civil and political rights.

  • "And for these Ends to practice tolerance and live together in peace with one another as good neighbors…"

    • This phrasing is heavily replicated in the Universal Declaration of Human Rights.

  • "To unite our strength to maintain international peace and security…

  • "And to employ international machinery for the promotion of the economic and social advancement of all peoples."

    • Terminology: "Instruments" refers to documents (e.g., UDHR, Charter); "machinery" refers to institutions aiding UN function.

The International Bill of Human Rights

• Purpose: To create a new foundation for universal morality and bring people together.

• Three Instruments:

  1. Universal Declaration of Human Rights (UDHR)

  2. International Covenant on Civil and Political Rights (ICCPR)

  3. International Covenant on Economic, Social and Cultural Rights (ICESCR)

• Split Due to Cold War: Ideally a single convention, but Cold War tensions (Western vs. Eastern blocs) led to two separate documents to appease both sides.

• Commonalities: The preambles and initial articles (e.g., Article $1$ on self-determination, Article $2$ or $3$ on equality between men and women and non-discrimination based on sex) are identical in both ICCPR and ICESCR.

Universal Declaration of Human Rights (UDHR)

• Creation: Composed in less than two years, amidst Cold War divisions, involving $50$ member states in the final drafting.

• Significance (Hernan Santa Cruz of Chile): A truly significant historic event, demonstrating a consensus on the supreme value of the human person, originating from the fact of existing rather than worldly power. This inherent value gives rise to the inalienable right to live free from want and oppression and to fully develop one's personality.

  • Dignity: Recognized human dignity as a nearly universal moral characteristic.

  • "Develop one's personality": Refers to achieving one's potentiality, not psychological state.

• Adoption: Adopted by the UN General Assembly in December $1948$, a milestone in international human rights law. The $70$th anniversary was recently celebrated.

Interdependence and Indivisibility of Human Rights

• Rejection of "Generations of Rights": The proposal by Karel Vasak in $1979$ (first generation: civil/political; second generation: economic/social/cultural; third generation: solidarity rights) is not the UN's view. This model was seen as a Western worldview hierarchy.

• Vienna Declaration (1993) Reaffirmation: After the Cold War, the international community unequivocally stated:

  • "All rights are universal, indivisible, interdependent, and interrelated."

  • This means no right is more important than another; they are all equal and interconnected. Achieving one right often depends on another.

• Prevailing View: All human rights are:

  • Universal: Apply to everyone.

  • Indivisible: No right is more important than another.

  • Interdependent: They all work together.

Core Human Rights Treaties (Nine)

1. International Covenant on Civil and Political Rights (ICCPR)

2. International Covenant on Economic, Social and Cultural Rights (ICESCR)

3. Convention Against Torture and Cruel Inhumane and Degrading Treatment or Punishment (CAT)

4. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

5. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

6. Convention on the Rights of Persons with Disabilities (CRPD)

7. International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)

8. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)

9. Convention on the Rights of the Child (CRC)

UN Machinery and Structure

• Security Council:

  • $5$ Permanent Members: China, France, Russia, United Kingdom, United States. They hold veto power, a long-standing point of critique.

  • $10$ Non-Permanent Members: Elected for two-year terms (e.g., New Zealand has served several times). They have a powerful voice but no veto power.

• Secretary-General: The chief administrative officer, serving as the "CEO" of the organization, coordinating with the Security Council and General Assembly.

• General Assembly: The main deliberative, policymaking, and representative organ.

  • Connected Organs/Agencies (Examples):

    • United Nations Development Programme (UNDP)

    • UN Human Rights Council (UNHRC - Note: Speaker initially forgot, clarified for me to include it)

    • United Nations Children's Fund (UNICEF)

    • Food and Agriculture Organization (FAO)

    • United Nations Educational, Scientific and Cultural Organization (UNESCO)

    • World Health Organization (WHO)

    • World Trade Organization (WTO)

• International Courts:

  • International Court of Justice (ICJ)

  • International Criminal Court (ICC)

• Economic and Social Council (ECOSOC): Coordinates economic, social, and related work of the UN. It has a broad range of committees and commissions.

• Peacekeeping Forces: A significant difference from the League of Nations. When the Security Council agrees, UN peacekeeping forces (composed of contingents from member states) operate under the UN banner to protect peace in specific areas.

Treaty Creation Process

1. Working Groups/Meetings: Experts and representatives from different areas (including NGOs and international organizations) come together to discuss and propose initial ideas.

   • Example: A colleague representing New Zealand's indigenous viewpoint on synthetic information (DSI) in UN discussions.

2. Drafting and Negotiation: A lengthy process where every word is debated to ensure precise legal meaning.

3. Adoption: Requires a two-thirds majority vote by member states.

4. Signature: A country signs a treaty, indicating its agreement to be bound by the document at a later stage.

5. Ratification: The country formally consents to be legally bound by the treaty, making it enforceable in international law.

   • New Zealand: Has ratified all nine core human rights treaties.

Sources of International Law

1. Treaties: The primary source, formal agreements between states.

2. Customary International Law: Rules binding when there is a general and relatively uniform state practice over time, and states feel a legal obligation (opinio juris) to follow it.

3. General Principles of Law: Recognized by different nations (e.g., principles of justice, good faith).

4. Judicial Decisions: From international and national courts.

5. Decisions of International Organizations and UN Resolutions: Can be influential, especially Security Council resolutions.

6. Soft Law: Declarations, guidelines, or resolutions that are not legally binding as treaties but are highly influential and carry moral or political weight.

   • Declarations vs. Conventions: Declarations (e.g., UDHR, UNDRIP) are not enforceable as conventions, but are powerful and can stigmatize non-compliant countries.

   • Example: UNDRIP in Canada: Canada incorporated the Universal Declaration on the Rights of Indigenous Peoples (UNDRIP) into its domestic legislation, making it enforceable within Canada.

Individual Complaints Mechanism

• Purpose: Individuals can lodge complaints at the United Nations before the Human Rights Committee if they feel their human rights have been violated and domestic remedies are exhausted.

• Conditions: The individual's country must have signed up to the specific individual complaints process for the relevant treaty (New Zealand has signed most).

• Process Overview: Complaint registration, evidence submission, state response, Human Rights Committee decision and judgment.

• Enforcement: Not always enforceable domestically, but provides a strong impetus for states to comply, acting as a "lens of shame" for non-compliance.

• Limitation: Focuses solely on individual complaints; cannot fully address collective rights issues (e.g., a case involving collective Maori rights).

Case Study: Committee on the Elimination of Discrimination Against Women (CEDAW)

• CEDAW Committee: A body of $23$ independent experts monitoring the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women.

• Impact: A vital tool for women globally to address discrimination (violence, poverty, lack of legal protections, denial of inheritance, property rights, access to credit, education, voting).

• Article 1: Defines discrimination against women.

• New Zealand's Obligation: Ratified CEDAW in $1985$, obligating periodic reports (initially every $4$ years, now possibly extending to $8$ due to UN funding issues).

• Beijing Declaration (1995): The Fourth World Conference on Women further reinforced efforts to enforce CEDAW.

Role of Civil Society Organizations (CSOs / NGOs)

• Vital Role: CSOs play a critical role in both domestic and international spaces to ensure state compliance with international law.

• Examples of NZ NGOs with EcoSOC Status:

  • National Council of Women New Zealand

  • Pacific Women's Watch New Zealand

  • Maori Women's Welfare League

• EcoSOC Status: Allows NGOs to participate directly in UN proceedings, including appearing before committees.

CEDAW Reporting Process

1. State Party Report: The government (e.g., New Zealand) submits a report on its actions and compliance.

2. Shadow Reports / Alternative Reports: NGOs submit independent reports, compiling information from various (often smaller) civil society groups.

3. Pre-sessional Working Group: The CEDAW committee reviews all reports and creates a "list of issues."

4. Revisions: Both government and NGOs may revise documents based on these issues.

5. Examination: Public session where the CEDAW committee questions the state party and NGOs present their findings.

6. Concluding Observations: The committee issues a report based on all submissions.

NGO Submissions to CEDAW (NZ Example)

• Te Wharikiaki Wahine Refuge & Homeless Coallition / Maori Women's Welfare League:

  • Urged government to honor Te Tiriti o Waitangi (Treaty of Waitangi) and focus on gender equality.

  • Highlighted unhoused, unnoticed, and unsafe women.

  • Called to honor UNDRIP, ensure indigenous children's whakapapa (genealogy) links remain primary in state care.

  • Stated the NZ Government is a "serial perpetrator of colonial violence" and a "dishonorable partner" to founding agreements.

  • Profiled Maori women/girls as a minority, experiencing systemic discrimination.

  • Argued UN systems (and NZ government) are designed to keep Maori women/girls at the bottom of social indicators.

  • Called for a global indigenous women's forum and for the NZ government to develop a National Action Plan to implement UNDRIP.

• Pacifica (Pacific Allied Council of Women):

  • Advocated for educational pathways for Pacific women and girls to build homes and safe communities.

  • Emphasized autonomy, economic prosperity, and the need for the NZ Government to endorse and facilitate Pacific women's leadership, knowledge, and aspirations.

• Shakti (Migrant Women's Group):

  • Highlighted inadequate addressing of forced marriage despite previous CEDAW recommendations; legislation changes are ineffective on the ground.

  • Migrant/refugee women face immense barriers in accessing justice, healthcare, and social security.

  • Noted new forms of abuse, including abandonment and "stoppages" (deaths from neglect), and unrecognized religious abuse.

  • Cited the Christchurch Mosque Attacks as exposing ignored advocacy by Muslim women regarding racialized discrimination.

  • Urged stronger protections and systemic reforms for migrant/refugee women, who despite high education, are often at the bottom of the socioeconomic ladder.

• Pacific Women's Watch:

  • Encouraged criminalizing online/physical stalking and strengthening protection against online harm/hate.

  • Called for evaluation of legal/court processes for victims of gender/sexual violence.

  • Urged an inquiry into non-consented medical treatment/surgery on intersex persons and provision of redress.

  • Advocated for data capture on diverse gender identities and sexual orientations to support health, employment, and social equity.

  • Demanded the Human Rights Act $1993$ protect intersex and transgender persons.

  • Called for structural adjustment of the economic system to address increasing poverty among women and children.

  • Addressed negative stereotypes and falsehoods (e.g., co-governance for Maori misconstrued as "race favoritism," intersex people subjected to indignity in gender debates).

  • Recommended enforcing equity policies, cultural competency training, and growing diverse leadership.

• National Council of Women (representing $16$ NGOs):

  • Rural Women: Unreliable/unaffordable internet/mobile coverage limits access to education/health services; urged investment in rural infrastructure.

  • Women's Health: Persistent inequities for disabled women, Maori, Pacific, Rainbow, transgender, intersex people, migrants, and refugees (higher illness/distress, lower life expectancy). Criticized the health system's crisis and failure to address intersectional barriers. Asked for urgent action on substantive equality in health access and outcomes, especially reproductive, sexual, maternity, and mental health.

  • Gendered Nature of Poverty: Government action has lacked transformational change.

    • Mandate diverse representation in private sector leadership.

    • Address how gender norms impact the valuation of women's work (including care work).

    • Set minimum pay/conditions for human dignity.

    • Mandate collection of pay gap data and action plans (Maori/Pacific women's pay gap at $20\%$, retirement savings gap at $$36\%$).

  • Urged national machinery for systemic collection and use of intersectional disaggregated data for policy.

Post-Submission Process

• Monday: New Zealand, Saudi Arabia, and Lao had their sessions before the UN committee. NGOs had to be concise, slow, and clear for translation.

• Tuesday: NGOs spent the day writing answers to committee questions, sometimes contacting colleagues in New Zealand for information.

• Wednesday: Lunch meeting with the committee (NGOs only, no NZ Human Rights Commission), allowing direct interaction and questions.

• Thursday: Government delegation (heads of departments from Ministries like Women, Te Puni Kokiri, etc.) presented their responses, based on input from government ministers.

• Training: NGOs from NZ, Laos, and Saudi Arabia (Kenya-based representative) underwent training together on the UN process.

Concluding Observations

• Outcome Document: A report produced by the CEDAW committee after hearing from NGOs and the state party.

• Legal Force: Not legally binding; it does not force the government to act.

• Importance: NGOs and other actors use it to hold governments accountable (e.g., "The UN said you should be doing this, why not?").

• Example of Impact: The New Zealand government has agreed to introduce a law on stalking, a positive outcome stemming from these observations and discussions.

• Overall Message: Advocacy can make a difference, even if the process is slow.

Next Week's Topic

• Climate change and health interactions with international law.