Law and Justice

Posts Tagged ‘Laws’

 

 

William Allan Kritsonis, PhD

Professor

 

PUBLIC SCHOOL LAW

 EDUCATIONAL LAWS & POLICIES

 

PARENT’S RIGHTS

 

 INTRODUCTION

             Parents are an essential partner in the education of their children.  While constitutional law does not necessarily outline parental rights regarding education, Texas statutory law does.  In fact, in 1995 the Texas Legislature amended the Texas Education Code to include parent rights and responsibilities.  According to Chapter 26 of the Texas Education Code §4.001, “Parents will be full partners with educators in the education of their children (Walsh, Kemerer, & Maniotis, 2007).  The state cannot require all students to attend public schools, thus enabling the parents to right to choose where their children will be educated.  Parents may send their children to public, private, or home schools. 

 

            For the purpose of this report, we will present the case that relates to granting parents the right to choose which institution of learning their children will attend.  The findings are intended to be informative and beneficial in understanding the precedent set forth for parent rights and responsibilities regarding the education of their wards.

 

Case One

 

United States Supreme Court

 

PIERCE

 v.

SOCIETY OF SISTERS

268 U.S. 510

 

LITIGANTS

 

Plaintiffs-Appellants: Walter Pierce, Governor of Oregon

                                    Isaac H. Van Winkle, Attorney General of Oregon

 

Defendant-Appellee: Society of Sisters of the Holy Names of Jesus and Mary

                                    Hill Military Academy

 

BACKGROUND

 

            On November 7, 1922, the voters in Oregon passed an initiative to amend the Compulsory Education Act.  The amendment was aimed at creating a common American culture by eliminating any dogmas that may negatively influence the established norms of American society.  All children between the ages of eight and sixteen were required to attend public school.  Children who were mentally disabled, lived three miles from the nearest road and had already completed the eighth grade were excluded from attending school.  To enforce the law parents who did not send their children to public school were fined and faced 30 days in jail.   The initiative also targeted parochial schools, specifically Catholic schools, because the thought was that such parochial schools hindered assimilation.  Since the Society of Sisters worked with mainly orphaned and disadvantaged children they challenged the fairness of the Act.

 

FACTS

 

            The Society of Sisters was an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. The Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corporation’s business and property will suffer irreparable injury.

DECISION

 JUSTICE McREYNOLDS delivered the opinion of the Court.

The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him “to a public school for the period of time a public school shall be held during the current year” in the district where the child resides, and failure so to do is declared a misdemeanor. The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.

The Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corporation’s business and property will suffer irreparable injury.

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

DICTA

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

IMPLICATIONS

            The Society’s suit against Pierce was successful in establishing that the parents and guardians of students had a right to choose their children’s educational setting.  The ruling set the precedent for parents’ right to choose privately run schools and relieved parents from being forced, through penalties, to have their children educated in public schools.

Incoming search terms:

does a parent have the right to video a teacher in Virginia (2)constitutional and educational rights as a parent (1)report a parent in texas not sending child to school (1)parents rights in public school corporation (1)Parents Bill of Rights for Texas Public Schools (1)parental laws on schooling (1)Parent right to choose teachers (1)parent right to choose a school (1)LAWS REGARDING PARENT\S CHOICE OF SCHOOLS -uGANDA (1)what are the laws on a parent not sending a child to school (1)

Data Theft in Cyber Space – Issues and Laws

The rapid development of Information technology poses new challenges before the law. These challenges are not confined to any single traditional legal category but arise in, for example, Criminal Law, Intellectual Property Law, Contract and Tort. One such challenge is the growing menace of “Data Theft”. It is the term used when any information in the form of data is illegally copied or taken from a business or other individual without his knowledge or consent.

 

Data as a valuable asset

Data is a valuable asset in this modern era of Information Technology (IT).  Data is an important raw-material for Call Centers and I.T. Companies. Data has also become an important tool and weapon for Corporates to capture larger market shares. Due to the importance of Data in this new era, its security has become a major issue with the I.T. industry.  The piracy of data is a threat, faced by the I.T. players, who spend millions to compile or buy data from the market.  Their profits depend upon the security of their Data. 

 

Issues

The major issue regarding Data Theft is its International character, for example Systems may be accessed in USA, the data manipulated in China and the consequences felt in India. The result of this ability is that different sovereignties, jurisdictions, laws and rules will come into play which again is an issue in itself. Further, collection of evidence in such circumstances become another issue as investigation in three different countries, all of whom may not be in talking terms, is almost impossible and poor technical know-how of our cops adds to the woes. Also, the lack of coordination between different investigating agencies and a not-so-sure extradition process is another head ache. However the biggest of all these issues is the lack of specific laws in the country dealing with this crime, so even if the culprit is caught he can easily get away by picking and choosing any of the of various loopholes in our law.           

 

Does India have sufficient Laws?

The problem of data theft which has emerged as one of the major cyber crimes worldwide has attracted little attention of law makers in India. Unlike U.K which has The Data Protection Act, 1984 there is no specific legislation in India to tackle this problem, though India boasts of its Information Technology Act, 2000 to address the ever growing menace of cyber crimes, including data theft. The truth is that our IT Act, 2000 is not well equipped to tackle such crimes. The various provisions of the IT Act, 2000 which deal with the problem to some extent are briefly discussed below.

Section 43:- This section provides protection against destruction and unauthorized access of the computer system by imposing heavy penalty up to one crore. The unauthorized downloading, extraction and copying of data are also covered under this section. Clause ‘C’ of this section imposes penalty for unauthorized introduction of computer viruses of contaminants. Clause ‘G’ provides penalties for assisting the unauthorized access.

Section 65:- This section provides for computer source code. If anyone knowingly or intentionally conceals, destroys, alters or causes another to do as such shall have to suffer imprisonment of up to 3 years or fine up to 2 lakh rupees. Thus protection has been provided against tampering of computer source documents.

Section 66:- Protection against hacking has been provided under this section. As per this section, hacking is defined as any act with an intention to cause wrongful loss or damage to any person or with the knowledge that wrongful loss or damage will be caused to any person and information residing in a computer resource must be either destroyed, deleted, altered or its value and utility get diminished. This section imposes the penalty of imprisonment of up to three years or fine up to two lakh rupees or both on the hacker.

Section 70:- This section provides protection to the data stored in the protected system. Protected systems are those computers, computer system or computer network to which the appropriate government, by issuing gazette information in the official gazette, declared it as a protected system. Any access or attempt to secure access of that system in contravention of the provision of this section will make the person accessed liable for punishment of imprisonment which may extend to ten years and shall also be liable to fine.

Section 72:- This section provides protection against breach of confidentiality and privacy of the data. As per this, any person upon whom powers have been conferred under IT Act and allied rules to secure access to any electronic record, book, register, correspondence, information document of other material discloses it to any other person, shall be punished with imprisonment which may extend to two years or with fine which may extend to one lakh rupees or both.

 

Can Data Theft be covered under IPC?

Section 378 of the Indian Penal Code, 1860 defines ‘Theft’ as follows:-

Theft – Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.

 Section 22 of I.P.C., 1860 defines “movable property” as follows:-

            “The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.”

            Since Section 378 I.P.C., only refers to “Movable Property” i.e. Corporeal Property, and Data by itself is intangible, it is not covered under the definition of “Theft”.  However, if Data is stored in a medium (CD, Floppy etc.) and such medium is stolen, it would be covered under the definition of ‘Theft’, since the medium is a movable property.  But, if Data is transmitted electronically, i.e., in intangible form, it would not specifically constitute theft under the IPC. 

 “Data”, in its intangible form, can at best be put at par with electricity.  The question whether electricity could be stolen, arose before the Hon’ble Supreme Court in the case “Avtar Singh vs. State of Punjab” (AIR 1965 SC 666).  Answering the question, the Supreme Court held that electricity is not a movable property, hence, is not covered under the definition of ‘Theft’ under Section 378 IPC.  However, since Section 39 of the Electricity Act extended Section 378 IPC to apply to electricity, so it so became specifically covered within the meaning of “Theft”. It is therefore imperative that a provision like in the Electricity Act be inserted in the IT Act, 2000 to extend the application of section 378 IPC to data theft specifically.  

 

What do we need and why do we need?

It is imperative in today’s world that an emerging IT super power like India has a comprehensive legislation to protect its booming IT and BPO Industries (worst affected industries) against such crimes. Though the IT Act may appear sufficient in this regard but it is not comprehensive enough to tackle the minute technological intricacies involved in such a crime which leaves loopholes in the law and the culprits get away easily. Since this problem is not confined to one nation and has international dimensions, India must look forward to be a signatory to any international convention or treaty in this regard. Also it high time that our national police organizations are trained to deal with such crimes.    

 

Incoming search terms:

cyberspace theft of intellectual property (1)

This article is aimed at educating you on some of the online gambling laws in the US. I say some because it is impossible to cover all the US laws in relation to online gambling as most states have their own rules and regulations, also the laws can change from day to day or month to month. Along with the information I am going to present to you in my article, you can also take a look at this website; www.gameattorneys.com as this would provide you with additional information that would be beneficial to you. When we think of online gambling laws two things might come immediately to mind: complicated and strongly enforced.

The online gambling laws in the US have been intricately wrought over the last few years. This is so because the Department of Justice claims that every single aspect of internet gambling is illegal under the United States federal laws. However, the statutory language and judicial guide relating to online gambling does not promote the government’s wide pronouncements of illegality. The Department of Justice depends on the Wire Wager Act as its foundation for stating that internet gambling is illegal. However this specific law is used to ban only a couple online gambling games – therefore once a game is not listed as illegal under this law the individual cannot be charged for participating in it. Therefore it can clearly be stated that once it relates to federal laws the operation of an online sports betting website is illegal, but for the other forms of online gambling it is still unclear.

The instances, in which certain individual states have passed their own laws relating to online gambling, are a key factor which has complicated the situation of online gambling laws even further. Even though these laws have been put in place not many prosecutions have resulted, therefore the legitimacy of these laws has not been fully tested. Despite the question of the legitimacy of these laws more and more states are using them thus causing a growing spider web trapped state of affairs when referring to the legality of online gambling. Therefore it would work out like this, some forms of online gambling may be illegal in one state however in another state it may be legal.

The United States law enforcement authorities at the state and federal levels have only just increased the rate of enforcement of criminal law against individuals which are knowingly breaking the country’s online gambling laws. US citizens as well as foreigners have been arrested during this exercise however the outcomes of the prosecutions are unclear. There have been attempts though to legalize online gambling in the US however, they have so far all been in vain as the Department of Justice is not allowing it. In closing even though online gambling is a fast growing industry and is legal in a couple countries the US government is probably going to maintain their view of internet gambling being illegal for years to come.

Incoming search terms:

Gambling laws (1)

When the first cars and most important the mass production of cars were invented, no one could even imagine how big this industry will be. It took about hundred years and the cars rapidly multiplied in numbers, becoming an important element of our everyday life. Unfortunately they became not only a useful thing, but also made their own death toll and turned even the smallest road a pretty dangerous place. The worst part of the accidents is definitely driving under the influence of better to say drunk driving, as you will see in this article even the smallest changes in laws on drunk driving can lead to heated debates.

The first rules regulating the driving under the influence were set with the Criminal Law Amendment Act, 1968-69, also known as Bill C-150. The bill made it a “per se” offence to drive with a blood alcohol content (BAC) in excess of milligrams of alcohol in 100 milliliters of blood. Also the Bill stated that a refusal of a police officer’s demand to provide a breath sample is an offence too. Still the drivers managed to handle small over the norm alcohol level with “two-beer” defense. The idea of this defense is following, people accused of driving with more than the norm set by the law (.08 milligrams of alcohol in 100 milliliters of blood) would often argue they had consumed just two beers. Also a popular statement is that the last beer was consumed not long before the breath test, so there is more alcohol in their breath than in their blood.

An often used driver “two-beer” defense has been virtually abolished by a new federal legislation. The new changes, that are part of the federal government’s Tackling Violent Crime Act, kept the right to question the breathalyzer results, but only if the person provides the court with technical evidence proving the equipment was malfunctioning or wasn’t operated properly.

Some lawyers stated that the new legislation is unconstitutional and they will appear before the Superior Court of Justice in Toronto to present their arguments. They try to resolve thing quickly, before the government can get on with the business of prosecuting impaired drivers. The main argument is that with this change divers will be unable to protect themselves if the equipment is really damaged or malfunctioning. Usually drivers don’t know much about breathalyzers and they won’t be able to present valid evidence to the court. Also the information of the breath machines, including maintenance records, specs and the manufacturers’ manual are kept secret and not available to casual driver who is stopped on the street. This turns a useful tool into a one-way guilty ticket, in case of malfunctioning.

On the other side this change is positive for the police officers. Usually they are in a difficult situation. Some of the officers stated that they rely more on temporary license suspensions and not on the charges against drivers slightly over the limit, because the “two-beer” defense can easily beat these charges.

Family attorney is a term widely used to describe attorneys that deal with the infinite aspects of family law, as well as those of property law, criminal law, probation law, etc.

A Multifaceted Job

The most common cases a family attorney has to deal with are child custody, divorce, abuse and domestic violence. However there are many more instances where even the best family attorney would have to work with kidnapping, parental rights, emancipation and so on. Seeing how a particular case can be related to other legal areas, specialization does not count in this kind of profession as experience does. The more experienced a family divorce attorney is the more chances are that he would have dealt with a case similar to yours.

A family attorney has to be aware of the various family laws in different states as well so as to be able to relate them to property and criminal laws in the same state as his client. These internal rules are certainly not valid just for a family law attorney but also for other lawyers who specialize in different areas. However, the nature of work that a family attorney has to deal with is very sensitive as it concerns emotions and feelings related to the family.

When Children Are Involved

The most fragile section of the society is often involved in family law cases: children. Whether because of divorce or abuse, the protection of minors is the main focus of any family law attorney. Children are always the first ones to be represented and protected, although the case might not be raised by them. It is the duty of the jury and of the best family attorney to always stand by and shelter the innocent section of our society. Therefore, attorneys have to always be sensitive to emotional issues of minors. If traumatized at young age, the child will tend to face problems at all stages of life in future.

As the nature of the work is so various and so demanding, a family attorney will charge differently for each case. The fees depend on the hourly basis as well on the outcome of the case in court. The hourly rates depend on the area or the state, on the experience and popularity of the attorney and on the nature of the case. Retainer charges asked by attorneys are usually paid by the spouse with a higher income, if the second spouse is in financial difficulty. The court usually gives an order called ‘Pedente lite’ so that payment by the spouse with a higher income becomes compulsory.

George Orwell, British author of the satirical novels “1984,” and “Animal Farm,” once quipped in political commentary, “What, at first, is absolutely strange, if forcibly fed to a population of human beings in small digestible bites, through the clever medium of government sponsored propaganda, will, over time, become accepted tradition and commonplace, even if sorely corrupted and evil.” What this basically means is that a government, any government, may spend hundreds-of-thousands of taxpayer dollars to legislate a law of great benefit for the people of a nation, the majority of which may eagerly support its passage, and, over time, gradually and duplicitously, for spurious reasons, de-emphasize the importance of the law’s enforcement, incrementally decreasing the means of enforcing it, until very few concerned citizens actually question why such an important law has gone un-enforced. During the interim time, however, as the law has regularly gone un-enforced, the very evil thing that the law was originally intended to proscribe has become a tolerated practice to a great percentage of the population and, moreover, the electorate. This evil will continue to be tolerated by a duped populace until its deleterious effect on the nation is much too great to be ignored.

Almost identical to the above scenario, U.S. immigration laws, under Title 8 of the U.S.C, were originally legislated by the U.S. Senate and House of Representatives with overwhelming, if not total, support from both Democrats and Republicans during the first four decades of the 20th Century. As with any federal law, the legislative mandate of the U.S. Code directly addressing illegal immigration, 8 U.S.C. § 1325, 1326 (which propelled the legislation through Congress) was placed into the hands of the President of the United States, or the Executive Branch of the U.S. Government, to faithfully enforce.

The due proper enforcement of the U.S. Immigration Code proceeded along pretty well until around 1960, when the passage of U.S. Civil Rights legislation and the strict enforcement of illegal Hispanic immigration collided head-on in the political arena. Subsequently, the legislative mandate of the laws, which was to keep illegal (especially Hispanic) aliens from entering the nation from across the Southern border, was unfortunately subjugated, at that time in history, to political whims and sympathies emanating from, primarily, Democratic U.S. senators and representatives. These legislators cared more about scratching the backs of their wealthy farmer constituents during their seasonal picking times (ensuring that they had ample illegal alien fruit and vegetable pickers) than making sure that immigration laws were faithfully enforced. Consequently, enforcement of immigration law became inanely geared much more to political favoritisms and special interests than to the rule of law. This placed the U.S. Border Patrol in the ambiguous posture of enforcing illegal immigration not according to prescribed federal law, but, rather, according to the whims of powerful men and women in high political offices. I know this to be true because, in 1985, a senior U.S. Border Patrol agent told me that he was extremely frustrated with the differing orders coming from Washington, D.C. telling him and his officers to substantially reduce the number of raids made on known employers of hundreds of illegal aliens in San Diego County. At the time, I was a San Diego County deputy sheriff working at the Vista San Diego County Jail.

Currently, there are millions of parasitic undocumented illegal Hispanic aliens at large throughout the United States, especially in California, Arizona, New Mexico, and Texas due to the U.S. Executive Branch’s refusal to properly enforce the current immigration laws that are an integral part of the U.S. Code. Many of these illegal aliens are crooks and felons, who are going about with false identifications, bogus driver’s licenses, and fraudulent Social Security numbers for the express purpose of ripping-off American citizen taxpayers, obtaining food stamps, medical care, and other public services at taxpayer expense. Of the 15-to-20 million illegal aliens presently here, more than 20 percent of them are violent felons, burglars, robbers, thieves, and gang members. Over 20,000 of them are presently serving federal and state prison sentences for felonies they have committed. But all of these undocumented aliens have one felonious thing in common. They are all guilty of violating federal law by illegal entry into the United States.

Recently, Barack Obama had the unmitigated gall to call, misguided, Governor Jan Brewer’s signing into law a new Arizona legislation giving state and local law enforcement officers the authority to detain, and arrest, suspected illegal aliens. How dare Obama say such a thing! When he (and the eight Presidents before him) have blatantly refused to honor their oaths of office, to faithfully execute the (immigration) laws of the United States, it is utterly reprehensible for him to criticize a responsible state governor for honoring the legislative mandate of a vital federal law when its lack of federal enforcement has critically upbraided the peace and security of her state.

Quite ironic it is that the Executive Branch of the federal government can build and staff what they regard as secure top-secret installations for military weapons research, intelligence gathering, or for what they want to consider important in the amorphous name of national security, and thoroughly protect the sites from illegal entry with all sorts of armaments, aircraft, and high-tech gadgetry, while at the same time insisting that protecting the Southern U.S. against illegal entry is almost impossible. Case in point, Area 51, comprising thousands of acres of desert, mountains, and forested land, which is guarded day and night against illegal entry. Take, for instance, an ordinary American citizen who merely wants a job working inside Area 51, and obtains false identification in order to gain entry. Let’s say that that citizen gets a job working at one of the government-run restaurants on the installation with his false identification. Two weeks later, Joe Blow is hard at work serving food when government agents harshly arrest him for illegal entry onto U.S. Government property. The poor fellow is charged with a dozen federal crimes, put on trial in a federal court, and subsequently convicted and sentenced to 30 years in a federal prison. Yet, most U.S. citizens will read about the person’s conviction and strongly agree that the intruder had it coming when he illegally entered a restricted federal area. So, why isn’t prevailing U.S. public opinion against men, women, and families who conspire to illegally cross the U.S.-Mexican border? Such an act is as much a crime as illegal entry onto Area 51. Perhaps it is as George Orwell said, that through deliberate government inaction, and the effective dispersal of government sponsored propaganda, a law vital to a nation can, over time, be de-emphasized to a point where the average citizen does not consider its enforcement as essential.

I sincerely believe that our second President, the late great John Adams, who coined the expression, “We are a nation of laws and not of men,” would be completely devastated by how the American republic has become a nation of men and not of laws. Mr. Obama obviously wants to see the U.S. Constitution pragmatically changed to give the federal government total control over every matter the Framers considered state concerns. In essence, Obama wants revise the Bill of Rights and to remake the American republic to resemble the Federal Republic of Germany, which has no bill of rights guaranteeing freedom of speech, freedom of religion, the right to keep and bear arms, and the right to be free of unwarranted invasions of privacy. But, most of all, he wants to see the evisceration of the 10th Amendment, which currently reads, “The powers not delegated to the United States (the federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It seems to be sad, but true, that if a standing President does not like the laws that pervious congresses legislated, and that previous Presidents signed into force, that President will not make an effort to enforce them. This refusal to faithfully execute “all” standing federal laws is, in my opinion, an impeachable offense constituting a high crime. Nonetheless, a President who has a majority of a U.S. Congress rubber-stamping every thing he does, and wants to do, is in no fear of impeachment. A candidate for President, who is not a natural born citizen of the United States, can even be elected and sustained with impunity with a Speaker of the House of Representatives and a Senate Majority Leader supporting him. What was true about “Dubya” and his rubber-stamping Republican Congress is equally true, if not more so, with Barack Obama and his rubber-stamping Democratic Congress. The Obama administration is saying, in effect, that President John Adams, his historical regard for the application of law, and every other salient precedent illustrating the importance of following law instead of human whim, can all go to hell.

Perhaps, during the November 2, 2010 mid-term congressional elections, indignant American citizens, the majority of the voting electorate seeking the rule of law, will go to the polls to cast out of the U.S. Senate and the House those representatives who voted for a legislation to deprive the American public of their freedom of choice, which will force them, by federal mandate, to, either, buy into federally controlled health care, or be penalized for not doing so. The Obama administration is systematically working with the Democratic controlled Congress against the interests of American citizen taxpayers by seeking a federally controlled, essentially totalitarian, regime that will only increase national debt, tax burdens on individuals and families, control over a citizen’s daily life, and do away with the type of federalism established in the U.S. Constitution. I sincerely pray to Nature’s God that a great majority of American citizens, registered voters seeking the rule of constitutional law, regardless of political party affiliation, will converge on the voting places this coming November to elect new U.S. Representatives and Senators who will abide by the U.S. Constitution instead of the whims of an aberrant, power-hungry President.

Incoming search terms:

immigration reform current laws vs new laws (2)illegal immigrant versus farmers (1)

 

THE RAPE LAWS IN INDIA, revisiting the concepts  .

 

Is ‘Rape’ merely a word described in section 375 of the Indian Penal Code, 1860, to be interpreted stricto senso? Or is it a psychological phenomenon to be understood and dealt with, with more empathy and less legality? What is the scope of this word and its narrow definition according to law and what is the impact of this definition on the judgments meted out to the hapless victims of this excruciating mental agony? This project aims to study the lacunas in the present definition and scope of the phenomenon called Rape.

The word ‘Rape’ is derived from the Latin term ‘Rapio’, which means ‘to seize’. Thus, rape literally means a forcible seizure and that is the essential characteristic feature of the offence. In common parlance, it means intercourse without her consent by force, fear or fraud. In other words, rape is violation with violence of the private person of a woman.

Though the law is said to grant justice to the innocent, the same is sadly not true in case of rape victims. Justice prides herself on being blind to everything but the truth – yet as far as rape is concerned, the facts paint a different picture. Rape laws in India are extremely antiquated. Although the laws outline the crime in clear terms, the courts are filled with people who favor the accused and challenge the veracity of the victim’s allegation.

The Supreme Court has opined in Maharashtra v Madhukar Narayan Mardikar , that
“..even a woman with easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.”

Rape laws in India are antiquated; Instances where justice has failed the victim because of interpretation of law, assessment of evidence, long delays at the trial and harsh and humiliating cross-examination of the victim are reported with alarming frequency. This report deal with the incumbencies in the existing laws relating to rape in India and certain recent developments in this field.

Rape is a weapon that distorts a woman’s sexuality, restricts her freedom of movement and violates her human rights. It leaves a woman feeling exposed, humiliated and traumatised. A rapist not only violates the victim’s privacy and personal integrity, but also causes serious physical and psychological damage. The law must take a fresh look at itself and take positive steps to make it more difficult for an accused to get judicial reprieve. . What is sad about rape in India is the lack of seriousness with which the crime is often treated.Statistics from 2000 showed that on average a woman is raped every hour in India

As observed by Justice Arjit Pasayat:
“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”
Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassement) would try fulfilling their desire.

Rape

Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code)
A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

Against her will.

Without her consent.

With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

With or without her consent, when she is under sixteen years of age.

Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception : Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Impediments to Justice:
Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ‘sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.

The definition leaves a few questions unanswered. For instance, what about sexual intercourse by a man with his wife, and without her consent, where the wife is over 16 years of age? Judicial interpretation has also meant that sexual intercourse in a custodial situation (police station, public hospital, remand homes, and jails) is deemed an offence, without going into the question of consent. Also, anal or oral penetration and penetration with objects do not fall within the ambit of section 375.

It also does not recognize other forms of sexual assaults, like protracted sexual assault by relatives, marital rape etc. as aggravated forms of rape. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet this is not considered rape by the Courts.

Also, if the victim is a minor, the onus is on the accused to prove his innocence. But if the victim is a major, it is up to her to prove her charge. Therefore, the defence finds it worthwhile to prove that the victim is a major. Another problem is that unless the woman is examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred. Very often, unable to prove penetration, judges find themselves trying “rape” cases under more watered down sections: ‘outraging the modesty of a woman’, for instance, carrying much lighter punishment.

 Adding to this is Section. 155(4) of the Evidence Act (Repealed), which allows the victim to be questioned of her past sexual history which the defense uses to humiliate the victim in the Courtroom. At the same time, section 54 stated: “In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant.”

Section 375 of the Indian Penal Code (IPC) only considers forced peno-vaginal penetration to be rape. Penetration with any other object, be it life-threatening (a knife, an iron rod, etc), though more physically harmful is not rape. The penis is accorded a privileged position in comparison with other objects that can be inserted, because of the primacy put on the virginity of women. The rupture of a woman’s hymen — the ultimate symbol of her sexual purity — must be avoided at all costs. “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape,” according to this section. In other words, forced sex within marriage is outside the scope of the offence of rape.

 The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. In spite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without corroboration is not considered sufficient.

Therefore rape laws in order to be of great deterrence, must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that fails, but the applicants, the process and application

 

 

Earlier Developments

 Several difficulties with the rape law were highlighted through some insensitive treatment by the judiciary

·        The Mathura rape case is illustrative.( TukaRam v. State of Maharashtra, AIR 1979 SC 185In March 1972, a 16-year-old tribal girl was raped by two policemen in the compound of Desai Ganj police chowky in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act was being perpetrated in the police station. When her relatives and the crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. At the Sessions Court, Mathura was accused of being a “liar” and that since she was “habituated to sexual intercourse”, her consent was given. The Nagpur bench of the Bombay High Court set aside the judgment holding that that passive submission due to fear induced by serious threats could not be construed as willing sexual intercourse. However, the decision of the Supreme Court remains a blot on its record to this day. The rationale for acquittal was that Mathura had not raised an alarm and there were no visible marks of injury on her body. The judgment did not distinguish between consent and forcible submission

 

The Mathura rape case galvanised the women’s movement into asking for reforms of the criminal law that dealt with rape. In 1983, the government passed the Criminal Law Amendment Act. It amended Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.The Act also provides for trial in camera. It also inserts a new section in the IPC Sec 228(A), which makes disclosure of the identity of the victims in These amendments were not enough to stem the rise in the number of cases of sexual violence against women. One crucial defect in the law was the definition of rape under Section 375 of the Indian Penal Code (IPC), which took into account only penile-vaginal penetration. Other physical and mental injuries were left to be dealt with under Sections 354 and 509 of the IPC as `outraging the modesty of a woman’.

 

 

Although the amendment had only partly accepted the demands of the campaign, the enactment was an indication of some measure of success. However, the inadequacy of these measures became clear in the Suman Rani case.[In spite of the rigorous punishment brought in through the amendment in cases of custodial rape, the Supreme Court reduced the sentence to five years on grounds that the woman was of ‘questionable character’ and ‘easy virtue’ with ‘lewd’ and ‘lascivious behaviour’. The court also dismissed a review petition filed by women’s groups. The Suman Rani case was no exception; the judiciary was routinely awarding less than the minimum sentence in rape trials despite the statutory mandate laid down by the amendment. In Mohd.Habib v. State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis, which the High Court presumed was indicative of consent.

·        In Mohd.Habib Vs State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.   

·        In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour.With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.The suit was squashed by the High Court, while observing that ‘ it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.’

·        Whereas, in State of Punjab Vs. Gurmit Singh, the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

·        The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar, held that "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."

In Chairman, Railway Board Vs. Chandrima Das, a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation. 

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation. 

 In view of the above, the Supreme Court has laid down the following guidelines for the trial of rape cases:

1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted.

2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state.

3. The police should be under a duty to inform the  victim of her right to a counsel before being interrogated.

4. A list of lawyers willing to act in these cases should be kept at the police station.

5. Advocates shall be appointed by the Court on an  application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.

6. In all rape trials, anonymity of the victim must be maintained

7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses.

8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.

Recent Developments

In 1997, Sakshi, an organisation involved in issues on women and children, approached the Supreme Court through a writ petition asking for directions concerning the definition of rape in the IPC. Although the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion, it directed the Law Commission of India to respond to the issues raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Law Commission Report had dealt with these issues. The Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised in the writ petition. In August 1999, it directed the Law Commission to look into these issues afresh. (Sakshi v. Union of India)

After detailed consultations with the organisations, the Law Commission released its 172nd Report on the Review of Rape Laws, in 2000. The Law Commission recommended changing the focus from rape to `sexual assault’, the definition of which goes beyond penile penetration to include penetration by any part of the body and objects, taking into account cunnilingus and fellatio.

The report recommended the deletion of Section 155(4) of the Indian Evidence Act, which would prevent a victim of rape from being cross-examined about her `general immoral character’ and sexual history. It suggested graded sentences, with higher punishment for rape committed by the relatives and persons in `trust or authority’, public servants, and superintendents, management and staff of hospitals. It introduced a new Section 376(E), which would include sexual harassment at the workplace.

The commission recommended shifting the burden of proof of consent to the accused. It suggested specific provisions that would deal with the medical examination of the victim as well as the accused by a registered medical practitioner. It said that girls who are victims of rape should be questioned only by a female police officer, in the absence of whom a qualified woman from a recognised social organisation should do the questioning. The commission suggested that the law relating to sexual assault be made gender neutral, that is, men and women can be charged with the rape of men, women and children. This meant that for the first time the sexual assault of minor boys was made prosecutable under the law. It asked for Section 377 of the IPC to be dropped, thus decriminalising sodomy.

However, the recommendations did not take into account marital rape. It raised the age of consent of the wife from 15 to 16 years, after which the woman is not protected from rape by the husband. It also continues to provide a window for Judges to reduce the sentence in case of convictions below the minimum sentence specified, as suggested by the commission which states: “Any number of situations may arise, which the Commission cannot foresee th Based on the Law Commission’s recommendations, the government enacted an amendment in the winter session of Parliament in 2002, which deleted Section 155(4) and inserted a proviso to Section 146 of the Indian Evidence Act, which means that a victim of rape can no longer be questioned about her past sexual conduct and her `general immoral character’..

 

Criminal Law Amendment Bill of 2005

The Bill, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women

·        The major changes sought to be brought about through this amendment are substitution of existing section 375 of the IPC with the following:

“375.Sexual Assault: Sexual assault means –
(a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child–
(b) the introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman
(c) the introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.
(d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child’s body;”

Similarly, Amendment, 2005 brought forth many changes in rape laws, especially related to detailed procedure of examination of victim and accused both by inserting new sections: 164-A, 174 (1A), (b), and 53-A (a) CrPC, and made it clear that in addition to physical examination, it also shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the RMP thinks necessary in a particular case. Section 174 (1A), (b), CrPC inserted to make mandatory inquiry by the Judicial Magistrate in cases of custodial rape and murder cases.

Changes recommended in the Indian Evidence Act, 1872 are in S

Incoming search terms:

break up was a mistake (1)defination of rape as india constitution (1)indian constitution rape laws (1)indian sc cases related to rape (1)meaning of rape under indian constitution (1)murder and rape laws in india (1)rape laws india 2010 (1)victim compensation and law in india (1)

TABLE OF CONTENTS:- 

The international laws in the current aspects as viewed by most of the jurists round the globe are the laws that govern the relations of the nations with each other and the control over the individualism and freedom of these democratic as well as otherwise nations. the international laws are thought to be the governing machineries of the contemporary scenario in which the accountability of the nations for the most inhumane crimes being done by them are brought to the court. in the various books that talk of “taking the state to court” and the “mobilization” standards of the present F1 generations are being expressly interviewed. These scholar works tend to connote that the international laws are the tools that can limit the future dangers of the international insecurity and other problems of colonization etc.  faced by most of the nations of the world. These nations are threatened by the superpowers for being forced to remove their ruling strategy. The United Nations has done several peacekeeping operations and has set various organizations that intend to store the peace and spirit of coordination and cooperation in the world. The theories of the international laws that are found to be dealing with the origin and the gradual development of the international laws have been asked a lot of questions as the race for hegemony is on the peak. Growing problems of racism and international terrorism are the new challenges being faced by the international laws today. This article presents various such aspects and put the suggestions for their solutions under one umbrella. The first question before everyone is this that “what are the international laws and what purpose do they serve for humanity and international peace?” This is the most critical question that corresponds to the enforcement of international and the limits of the international courts of justice being determined. We know that the function of the national laws is to regulate the behavior of the individuals but when we intend to talk of the international laws, the shoes of individuals are wore by the states. What if the international laws are the vanishing point of the world? It is well known to the students of the international laws that the primary function of the international law is to regulate the conduct of the states while on the other hand the national laws intend to regulate the conduct of the individuals. If we examine the contours on which the body of international law is explained we could easily derive the conclusion that most of the allegations that are imposed upon the rule of international laws are concerning their applicability or jurisdiction in one way or the other. Thus the international laws are to be made more binding and the forces that provide sanctioning power to such laws are to be extending to ensure the desired obedience. The identity of the international laws another such aspect that is necessary to limit the province of international laws. The state and non-sate actors are also the key aspects that correspond to the applicability of the international laws. We here mean the kinds of acts performed by the international superpowers and other small newly independent states. In various cases of hegemonic expansion and colonialism, it could be traced that the war-crimes and crimes against humanity are recorded.

02. TAKING THE STATE TO THE COURT

:-

In the contemporary growth of the international law, the growing awareness among the people of the various countries has led to the introduction of the concept of public interest litigation which has increased and widened the opportunities that even the states could be brought under the jurisdiction of the courts. In a study by the German philosopher “Hans Dembowski”, it has been concluded that the growing political unfairness and other political reasoning have led to the introduction of Judicial Activism which has led to the growth of the power and abilities accompanied with the authoritativeness of the judiciary. International laws deal with the sociology of governance and in this respect connote to the division of power between the administrative and judicial branches of the government and their interaction with society as a whole in the particular cases that have been studied. The ongoing, excited media debate about the public interest litigation and judicial activism makes this evident. This function has typical stand point in certain countries of the world. The international arena on which various countries are brought on the same standard in the international court are is seemingly an attempt to ensure fairness and security in the international contour. Let us have a look over the two important aspects that have been the focus of study in the international society.

[A]. State Sovereignty

Sovereignty, for the past several centuries, has been the foundation of interstate relations and the world order. The concept- defined as the independent and unfettered power of a state in its jurisdiction-lies at the heart of the customary international law and the UN charter. It remains both an essential component of the maintenance of international peace and security and a defense for weak states against the strong. At the same time, the concept has never been as inviolable, either in law or in practice, as a formal legal definition might imply. In his 1992 An agenda for peace, UN secretary general Boutros Boutros-Ghali pronounced that the theory of sovereignty never matched the reality. In exploring why the westphalian sovereignty is continuously ignored or violated, Stephen Kraser has noted straightforwardly that “organized hypocrisy is the normal state of affairs. Sovereignty has routinely been violated by the powerful. In today’s globalizing world, it is generally recognized that cultural, economic influences neither respect borders nor require entry visas in both powerful and the powerless countries. The concept of state sovereignty is well envisaged in the legal and the political discourse, but territorial boundaries have come under the stress. Not only technology but also communications have made the boundaries permeable, but the political dimensions of the internal disorder and suffering often can result in wider international disorder. The initial purpose of this discussion is to set out the scope and significance of state sovereignty as a foundation on which to explore the contemporary debates about intervention. The literature on this subject is vast and contentious. As one legal analyst accurately summarizes:

Few subjects in the international law and international relations are as sensitive as the notion of sovereignty. Steinberger refers to it in the Encyclopedia of Public International Law as “the most glittering and controversial notion in the history, doctrine and the practice of the international law.” On the other hand, Henkin seeks to banish it from our vocabulary and others call it ” a word that has emotive quality lacking meaningful specific content”. There is little neutral ground when it comes to sovereignty.

State sovereignty denotes the competence, independence and legal equality of the states. The concept is normally used to encompass all matters in which each state is permitted by international law to decide and act without intrusions from the other sovereign states. The scope of freedom of choice in these matters is not unlimited; it depends upon developments in international law and in international relations. The current foundations of the international law with regard to sovereignty were shaped by the agreements concluded by the European states as part of the treaties of Westphalia in 1648. the 1993 Montevideo Convention On Rights and Duties of States spells out the following main essentials: a permanent population, a defined territory, a functioning government, and the ability to enter into relations with the other states. The Montevideo definition includes both empirical (population and effective government) and juridical (borders and independence) components. There is a controversy regarding the accurate sovereignty of the states in Africa which has been the problem in the enforcement of the principles of the convention. These states are sovereign de jure but not de facto. As a hallmark of statehood, the territorial sovereignty is a must in the international system. An act of aggression is unlawful for two reasons: it undermines the international order, and states have exercised their sovereignty to outlaw war in the UN charter. The failure or the weakening of the state capacity brings tragedies and international insecurity. In sum, sovereignty is the key constitutional safeguard of the contemporary international order. Despite the pluralisation of the international relations resulting from the proliferation of the non-state actors which is evidenced by globalization, democratizationand privatization worldwide- the sate remains the fundamental guarantor of human rights locally as well as building block of international society.

Critical Issues

Instead of the heavy recommendations on the maintenance and enforcement of sovereignty among the states, this constitutional aspect of every nation is subject to limitation in the statements of the United Nations which have dealt heavily upon the matters concerning the world peace and a definite civil order in the international community. These limitations are as described under:-

Firstly, the charter of the United Nations contains collective international obligations for the maintenance of international peace and security. According to Chapter VII, sovereignty is not a barrier to Security Council action in response to ” a threat to peace, a breach of the peace or an act of aggression.”

Secondly, sovereignty may be limited by customary international law and treaties. States are responsible for their international obligations, and therefore sovereignty cannot be an excuse for not performing the duties to which they have agreed sovereignty thus carries with it responsibilities to protect the persons and property, as well as to regulate political and economic affairs. Sovereignty cannot shield internal violations of Human rights that contradict the international obligations. It has been evident in the pages of history that in a no of cases, the Security Council endorsed the use of military force for the protection of the populations in the states which were caught in the throes of war.

[B.] Changes And Continuity In The International System

Limits to the sovereignty are widely accepted-its erosion by economic, cultural and environmental factors, for example, or by customary law and voluntarily agreed treaty obligations. But Annan’s assertion of popular sovereignty was a far more radical challenge. It joined three other threats to traditional notions of state sovereignty that arose in the 1990s and are relevant for our consideration of humanitarian intervention: the right of self-determination, a broadband conception of international peace and security; and the collapse of state authority. In spite of significant change, the international system reflects substantial continuities: in centrality of state decision making and the lack of any changes overriding central authority. But situating the nature of changes and continuities is the task of political analysis and judgment. However, after the end of the cold war, these situations changed to a great extent. Firstly, the soviet union became a superpower in which Russia led the legal status of USSR, including a permanent seat on the Security Council, but 14 other states were created by the implosion of the former soviet union. Shortly, thereafter, Yugoslavia broke up into six independent states, with Serbia and Montenegro later forming the republic of Yugoslavia. Contemporary politics in developing countries is conditioned by the legacy of colonialism. The second challenge is that the broadening interpretation of threats to international peace and security, the charter’s only enshrined license to override the principle of noninterference. The third challenge was to the traditional interpretations of the sovereignty has arisen because of the incapacity of some states to exercise effective authority over their authorities and populations, a topic that is dealt extensively by the international community. For these states sovereignty is a legal fiction which never matches to reality. The political vacuum leads to the nonstate actors taking matters into their own hands and is usually accompanied by the forced displacement of the people. The United Nations confronts the same constraints today as the diplomats and politicians have since time immemorial, and certainly since the beginning of the modern efforts at the multilateral cooperation in the 19th century.

[C.] The International Court of Justice (ICJ):-

The international court of justice even though working for the enforcement of the principles behind the objective of maintenance of peace among the states of the world have been posed by various questions that are the critical areas of thought that concern the epistemology behind the working of the international courts. The states which are prosecuted in the court suffer from various discriminations and differentiations. The trials that are governed or were carried out at Nuremberg etc. follow the traditional principles i.e. TRC Act, 1995. This method has been given the name “Victor’s Justice”. The victor prosecuting the accused in his own sort of understanding and reasoning is clearly presenting the breaking of the basic norm of the law that “nobody could be a judge in his cause”. This method of trial was applied in the Saddam’s trial when USA attacked it after it had the security threats from Iraq that it possessed nuclear weapons of mass destruction. The differentiation and the discrimination which has been done against Saddam have been, clearly witnessed by the world that dreams of making a new world order that involves the concept of Justice. The influence of Gandhian thought is clearly visible in the TRC Act. The basic problem is that most of the overwhelming systems of justice of the contemporary world are penal, and having very less imports of the impressions of peace. There the troublesome atmosphere prevails in the international level. It imposes stress upon the mind that what does the phrase “Taking the state to court” means. The solution is thus provided:

01.

02.

03.

04.

05.

The concept of collective security of the nations should be enforced and that the violence as the means of achieving objectives should be destroyed to the maximum extent possible.The inter-state relations should be given more importance and the suppression of the voice of the mobilized groups should not occur. The concept that could prevent a party from giving statements should be abandoned. The method od prosecution called as “victor’s justice” should be deleted because that leads to the serious violation of the principle of “audi alterum partum” and the judgment seems to be biased. The limits over the application of the international laws and the scope of the obedience of the same should be expanded. The international laws/treaties/conventions should be accompanied with more degree of sanction. The retributive nature of punishment should be overcome and new strategies to make the international laws more humane should be attempted.There should be prosecution of the states that interfere with the enjoyment of the right of sovereignty of the other states without any firm and reasonable cause.Besides prosecuting a state for the violation of treaty or other humanitarian principles, the focus of the prosecution should be to derive a method for the solution of the problem. The same may include the support of fellow members of the UN.

03. DEMOCRACY AND INTERNATIONAL SOCIETY

Democracy as a norm and the promotion of democracy as an activity has become far more deeply embedded within international society in various ways. In the first place, there has been an enormous expansion in the involvement of the UN and regional organization in elections. Electoral assistance has become an established part of UN activities and has also led to development of a broad transnational and trans-governmental network of electoral assistance, party support, and monitoring.second, external actors have routinely become involved in democracy promotion as a result of the expansion in the number and scope of peacekeeping operations, whose multi dimensional character came in many places to include human rights and democracy as well as demilitarization, refugee protection and state-building. In the cases of direct international administration of territory, the assumption of the sovereign power involved both transitional administration and also democratic regime-building. Third, democratic membership criteria have been established in two regions, and, in the case of Europe, democracy, human rights, and minority rights have all played a central part of the process of EU enlargement, the conditionality policies of the EU, and its extensive programme of member-state building. Finally, an increasing body of academic writing has opened up the idea of a legal right to democratic governance. The normative expansion of the international society to include democracy was also driven by political factors. Although there were references to ‘democratic’ rights in UN Declaration, the conditions of the cold war meant that formal incorporation of political democracy into the human rights system was politically impossible. This changed as a result of the wave of transitions from authoritarian rule in Southern Europe and the developing world in the late 1970s and 1980s; and the fall of communism in Eastern Europe and the Soviet Union; by the liberal self-confidence that followed the ending of cold war and the belief that liberal democracy and free markets were sweeping the world; and the consolidation of the place of democracy in US foreign policy. Two broader shifts need to be highlighted, both of which link academic analysis and political perceptions. The first concerns the progress of democratic change and the possibilities of democratization. During the cold war, Western governments were suspicious that the political change would be destabilizing, bringing to power either those who would ally themselves with the Soviet Union or who would challenge western economic interests. Democratization then carried with it some counter-hegemonic potential. It is also widely held in Western capitals and amongst the private sector that authoritarian governments were most suited to promoting economic development. Many academicians argued that, in any case, democracy required a wide range of ‘prerequisites’ that were lacking in many postcolonial societies. The wave of transition that began in Southern Europe and Latin America in the late 1970s ushered in a striking reassessment: democratization becomes the norm rather than the exception; the exception is of generally forward movement; and the democratization appears to be easier and less problematic than had been previously believed. A post-cold war world meant that unstable and potentially oppositional regimes could no longer look to the Soviet Union. And a globalized world meant that economic nationalism was no longer and option. The trade-offs between uncertain democratization, security interests, and economic preferences were apparently easing and a strong sense of difficulties of democracy gave way to an increased sense of ‘possiblism’. The conversion by the mid 1980s of US foreign policy was retold through a different lens that stressed the country’s historic mission to extend and promote democracy. The other important shift in thinking reflected the allegedly proven link between democracy and peace. Democratic peace theory builds on long tradition writing on international relations, often associated with Kant. However, it only formed one part of Kant’s political thought and had already become a liberal commonplace by the end of the 18th century. Other precursors of modern DPT include Karl Deutsch’s writing in the 1950s on security communities- groups of states in which there is real assurance that the members of that community will not fight each other physically but will settle their disputes in some other way. Overlooked or neglected by many studies of war causation, it became a major theme both of academic writing on international relations and of political and public debate on the nature of the post-cold war international order. Theorists argue that two sets of casual factors are important in explaining the democratic peace. In the first place, the structural constraints of democratic institutions and of democratic politics make it difficult or even impossible for war-prone leaders to drag their states into wars. They also stress the joint effect of these democratic constraints, together with the greater openness and transparency of liberal democracies. If both sides are governed by cautious, cost-sensitive politicians that only use force defensively, then conflict is far less likely to occur. Second, democratic peace theorists highlight the importance of normative mechanisms. Liberal and democratic norms include shared understandings of appropriate behavior, stabilize expectations of the future, and are embedded in both institutions and political culture. Rule-governed change is a basic principle; the use of coercive force outside the structure of rules is prescribed; and trust and reciprocity, rule of law are at the heart of democratic politics. From this view, then, the democratic peace is produced by the way in which democracies externalize their domestic political norms of tolerance and compromise into their foreign relations, thus making war with others like them unlikely. The democratic peace hypothesis rests on two claims: (a) that democracies almost never fight each other and very rarely consider the use of force in their mutual relations and (b) that other types of relations are much more conflictual including democracies’ interactions with non-democracies. The claim is almost always made in probabilistic terms. Few claim that it is a deterministic law. It is not a general theory since it is agnostic or at least much less certain about the relationship between democracies and non-democracies. But it provides some grounds for liberal optimism, even if only within the democratic zone. If true, it holds out the possibility that the homogenization of domestic political systems could transform global political order- in marked contrast both to traditional realist accounts of world politics and pluralistic accounts of international society. The main debates surrounding the democratic peace and the main issues raised by critics and skeptics include: (a) the reliability of the statistical evidence for the democratic peace, especially in the pre 1945 period; (b) the existence of alternative casual logics, especially in explaining regional clusters of peaceful states as in Europe or the Americas; (c) the difficulties of defining key terms in the theory, especially war and democracy; (d) and the problems raised by democratization processes and the evidence that, whilst fully consolidated democracies could be peaceful, democratizing states, specially in unstable areas, may be more conflict-prone than authoritarian regimes. Here are certain important issues noted from the speech (annual report) by the UN secretary general which was delivered in the General Assembly in 2007:–

01.

02.

03.

04.

05.

06.

07.

Despite these positive developments, however, efforts to expand democratic governments still face significant challenges. Many countries continue to limit fundamental freedoms, and governments face problems of the public sector efficiency, transparency and accountability. Women are playing a growing role in building democracy, but in the top leadership positions their numbers remain limited. Indigenous peoples and marginalized groups are also often excluded from power. Moreover, without vigorous participation democratic participation, official accountability, and strengthened institutional capacity, governments are unlikely to deliver on their commitments to achieve the millennium declaration, including the millennium development goals, and other internationally agreed development goals.The Un democracy fund has begun to make its mark. During first year of activities it funded 122 projects out of 1300 proposals submitted. The projects are implemented in partnership with diverse national actors. The fund’s activities encouraged transparency in government and supported national human rights institutions, civic education, electoral systems and processes, as well as political parties. There was a major focus on the participation of the youth and women in decision-making, 62 % of the submitted proposals containing a significant gender component and 37% explicitly promoting women’s rights and gender equality.The sixth international conference of new or restored democracies, held in Dolha from 29 October to 1 November 2006, reaffirmed a common commitment to democratization on the part of 100 governments, 69 parliaments and 97 civil society organization which took part. An advisory board and a nucleus secretariat were established to assist the chair of the conference in implementing the decisions of the conference.As countries enter the post-conflict phase, the focus of the UN assistance often shifts to consolidating the experience gained by newly created electoral institutions. An example is Liberia, where in September 2006 the UN mission in Liberia handed over the responsibility for long-term UN electoral assistance to UNDP.Meanwhile, the volume of technical electoral assistance to member states continued to increase. More than 30 technical assistance projects were launched in 2006, mainly through UNDP. United nations electoral assistance is often provided, moreover, in complex political environments. In the case of Mauritania, following the advice of the united Nations, the national authorities put specific measures in place that contributed to the credibility of a constitutional referendum and parliamentary and local elections in 2006, and presidential elections in 2007.Although the past year saw the scaling-down of several large and complex electoral operations, including operations in Afghanistan, Iraq and Liberia, the UN made a major contribution to the holding of historic parliamentary, presidential and provincial assembly elections in July and October 2006 in the democratic republic of the CongoThe United Nations continues to foster democracy and good governance, not only through its assistance in the holding of credible elections, but through a wide range of activities to promote democratic institutions and practices. These include support for independent judiciaries and parliaments, strong national human rights policies and institutions, transparency and accountability in government, civic education, free expression, and vibrant civil societies with opportunities for participation. In this regard, electoral processes are increasingly considered not as an end in themselves but as a bridge to peace building and sustainable development. The implementation of the United Nations convention against corruption has become a special priority for the UN system in improving the quality of governance in its member states.

Review:-

01. The situation in Iraq

[A.] The global order:-

[A.] The global order:-

01. The situation in Iraq

is causing widespread concern in the international community. The future of Iraq is vital to the stability of the region and the world. During the past year, the UN worked to foster regional engagement through initiatives including the international compact with Iraq and continued to promote national reconciliation and consensus-building, in particular through the support to the constitutional review process. UN will continue to assist Iraq through the challenges ahead. In Lebanon, the aftermath of 2006 war saw political divisions deepen, rendering more difficult the fulfillment of various UN mandates in support of the Lebanese sovereignty, territorial integrity and political independence. In the Middle East, the UN continues to increase the peaceful settlements.

02. Concerns about Asia

:- in Nepal, progress was made towards resolving the conflict and its underlying causes; the UN mission in Nepal was instituted at the request of the Nepalese parties to assist in the election of the constituent assembly and the political transition.

03. Northern Uganda

:- the special envoy of the UN for the lord’s resistance army affected areas worked with the regional actors to reinvigorate peace talks. A joint African Union-UN initiative was launched to advance the political process in Dafur. There is active representative of UN in Somalia for the purpose of national reconciliation.

04. Myanmar and Fiji

:- Asia also saw the greater use of secretary general’s good offices, with renewed high level dialogue between the UN and Myanmar, and the dispatch of an inter-agency fact finding mission to fiji following the coup in December 2006.

[B.] On Peace-keeping attempts of the UN

01.

At the beginning of 2006, UN peacekeeping supported 18 peacekeeping operations and 13 other field missions and offices, involving approximately 85,000 deployed personnel. By august, 2007, this number has got considerably increased.

02.

Among the myriad challenges faced by the UN peacekeeping during 2006 was the situation in Sudan and its spillover effects into Chad and the Central African Republic. The UNMIS has been to monitor the peacekeeping agreement of 2006. Another challenge facing UN peacekeeping operations was the Kosovo status talks and the eventual transition of the UN interim administration mission in Kosovo.

03.

The UNIFIL continued to cooperate closely with the Lebanese armed forces with a view to consolidating the new strategic military and security environment in the southern Lebanon, and to prevent violations of the blue line and maintain the cessation of the hostilities. UNIFIL has created has created a stable operational area as a basis for international efforts to revitalize the political process leading to a permanent ceasefire.

04.

The growing number of similar incidents require United Nations intervention demonstrates the central importance of control over security institutions to build a legitimate state. Enhancing national capacity and institutions particularly in the security sector is a long term process involving political commitment on the part of national stakeholders and the support of international community, especially donors. A critical aspect of this process is fostering national and local ownership of reforms intended to limit the role of the military in internal security, ensure that all security forces are under the civilian control, and meet basic standards of accountability, transparency and respect for human rights. The operational record for strengthening the capacity of national security institutions has been mixed. In Sierra Leone there has been a measure of national ownership for reforming the military and the police, although UN is concerned about its self sustainability in the absence of the continuing and long-term international technical and financial support. Similar problems faced Liberia and Congo, which are in the early stages of security sector reform. Security sector reform has been also less successful in Afghanistan, where the war against the Taliban and other anti-government elements has forced the security agencies to play a larger-than-ideal role in the attempt to provide internal security.

 

[C.] THE RULE OF LAW:-

 

The rule of law is a fundamental principle on which the United Nations was established. The United Nations goal continues to be a community of nations operating according to rules that promote human rights, human dignity and the settlement of the international disputes through peaceful means. International criminal justice, a concept based on the premise that the achievement of justice provides a firmer foundation for lasting peace, has become a defining aspect of the work of the organization. The international tribunals for Yugoslavia and Rwanda continued to conduct the trials of those accused of war crimes, crimes against humanity and other war crimes. The extraordinary courts charged the defendant for the crimes against humanity and placed him in detention. The courts for Sierra Leone commenced the trials of Charles Taylor and rendered two historic judgments that convicted five defendants for war crimes. In March, the Security Council requested UN to negotiate with the government of Lebanon an agreement aimed at establishing a tribunal to bring justice those accused of the attack that killed the former prime minister of Lebanon, Rafiq Hariri. The Security Council took resolution on 30 May, 2007 for establishment of special tribunal in Lebanon.in order to better the coordinate working of these institutions, at the end of 2006, the report entitled ‘Uniting our strengths: enhancing the United Nations support for the rule of law’ announced the establishment of a rule of law coordination and resource group. The group consists of major rule of law assistance providers in the UN system, who met to ensure that programmes are carried out in a coherent manner and are of high quality commensurate with the need of those requesting the support.

04. PURSUIT OF JUSTICE:-

One of the attractions of an old fashioned state-based pluralism and of a very thin view of international society was precisely that it appeared to offer a way of dealing with diversity and disagreement. If the diversity and the value are such important features of international life, then we should seek to organize global politics in such a way as to give groups scope of the for the collective self-government and cultural autonomy in their own affairs and to reduce the degree to which they will clash over how the world should be ordered. Equally, if the dangers of predation by the powerful are deep-rooted, even if not structurally determined, then we should continue to place a heavy emphasis on sovereignty and on the balance of power. In addition, the skeptical pluralist is attracted to the idea that it might also be possible to develop a cross-cultural consensus over the minimal rules around which a such a limited international society might be built. Hence the attraction to the international society writers of Hart’s notion of a minimum content of natural law built around Hobbesian assumptions. Hence, too null’s emphasis on the ‘elementary conditions of social life’, his attempt to isolate the elementary primary, and universal goals of the society of states; and his analytical effort to link these goals to the historical institutions of the international society. Negotiating the terms of cooperation is certainly a quintessentially political exercise. But it is also an inherently normative one both because acting in the world requires that we think about morally desirable change and because moral debate forms one part of how that political exercise will unfold. As noted in many places in this book, debates on global justice within the political theory and political philosophy have increased enormously in scope and sophistication. There is an increasingly rich array of potential answers to the problems of global political theory, including those related to just war, to humanitarian intervention, distributive justice, and to global democracy. The fragility of global political order makes it unconvincing to see this challenge as a second-order issue of moral methodology.

[I.] Institutional Authority:-

There are three major reasons why institutions are so important: as a means of helping to secure the framework for mutually intelligible moral debate; as a way of securing the stable implementation of shared rules; and in terms of the potential for the progressive development of a global moral community. In the first place, if we are looking for cross-cultural universals, a good case can be made for starting with process and with near-universality of ideas about fairness of process: hearing the other side, providing arguments for one’s actions, finding some mechanism for adjudicating between conflicting moral claims. All stable societies have to find some agreed process and procedure by which more moral conflicts can be adjudicated and managed, if not resolved. Within world politics the challenge is more daunting, given the diversity and divisiveness of sentiments, attachments, languages, cultures and ways of living, combined with massive inequalities of power, wealth, and capacity. Stuart Hampshire has suggested that there is an irreducible minimum to notions of just process. Second, institutions are also necessary because rules have to be applied. The cry of the liberal solidarist or the cosmopolitan moralist is that we need new rules to meet new circumstances. Terrorism requires that international society rethink rules relating to self-defence and the use of force. The degree to which international society is affected morally and practically by the humanitarian catastrophe means that we need new rules on humanitarian intervention. There are good arguments in favour of both these propositions. But it is a myth that, for example, a new rule on humanitarian intervention would obviate the need for the institutions and institutional debate. Even if the rule is agreed and even if the background criteria for evaluation are agreed, all rules have to be interpreted and applied. The new rule of humanitarian intervention will not avoid the need for that rule to be applied to the circumstances of a new case. On the one side, this inevitability raises the fundamental political issue: who is the body that has the authority to interpret and to apply the rule? There have been certain proximities that have been put-forth by Dallymayr. On the other side, we are faced by problems intrinsic to the idea of interpretation and application. Thus cultural and historical complexity makes it difficult to read off judgments in particular cases from general or universal moral laws and there is good reason for supposing that a great deal o the debate over values and ethics in the twenty-first century will necessarily have to be context-rich and interpretative. At one level, this might simply mean that universal principles need to show sensitivity to local context. But the challenge is deeper. Thus Tully follows criticizing in those who demonstrate a contemptuous attitude to the particular case. In terms of institutionalizing global order such a position lends support to a form of practical reasoning that is constantly navigating between the general rule, whether legal or moral, and it’s always contestable application to the facts and circumstances of a particular case. Third, institutions matter because of their potential for self-reinforcing dynamic. Once created, institutions act as platforms for the ongoing normative debates, or the mobilization of concern and for debating and revising ideas about how the international society should be organized. However much social scientists insist on analyzing international institutions solely in terms of the provision of international public goods, normative issues cannot be kept out of the picture. In addition, there is an inherent tendency for all normative systems to expand and develop, and to enmesh actors within certain patterns of discourse, reasoning, and argumentation. Finally, as we have seen, there are good reasons for believing that international institutions have acted as powerful agents for the diffusion and socialization of norms. Assessing the very mixed empirical record of actually existing institutions can have important implications for our views of global justice. Thomas Nagel, for example, has developed a political conception of global justice. Drawing on Hobbesian traditions, he argues that justice arises amongst those jointly subject to coercive authority. His assessment of where international institutions and global governance are ‘for the moment’ is that they fail to meet a crucial test, namely, they are not collectively enacted and coercively imposed in the name of all the individuals whose lives they affect. Yet this view of justice places too much weight on the difference between coercive and non-coercive situations; and, more importantly, underplays the extent of the changes that have in fact taken place in the density of international institutions, in the extent to which they do in tact exercise power and can be said to be co-authored, and in the relationship of both states and individuals to those institutions.others who either deny the possibility of international distributive justice or see it only in highly constrained forms also place great emphasis on the absence or weakness of international institutions or other cooperative arrangements. Thus, society’s main political, social and economic institutions and how they fit into one unified system of social co-operation’ determine the basic structure and govern ‘the initial focus’ of how to think about the matters of justice. But the emphasis here should be on ‘initial’ since Rawls also recognizes the possibility of reinforcing change. When writing about the domestic society, there is a strong sense that the institutions play a central role in moving from self-interested cooperation towards full overlapping consensus. They have important socializing influences on the citizens and Rawls presents a psychological account of how people come to accept and internalize principles of justice. Equally- when looking at international life- change, evolution, and learning are self recognized. ‘The idea of a reasonably just society of well-ordered peoples will not have an important place in a theory of international politics until such peoples exist and have learned to coordinate their actions in wider forms of political, economic and social cooperation. A global moral community in which claims about justice can secure both authority and can be genuinely accessible to a broad swathe of humanity will be one that is built around some minimal notion of just process, that prioritizes institutions that embed procedural fairness, and that cultivates the shared political culture and the habits of argumentation and deliberation on which such institutions necessarily depend. As Judith Shklar puts it; ‘procedural justice is not merely a formal ritual, as is often charged. It is a system that in principle gives everyone some access to the agencies of rectification and, more significantly, the possibility of expressing a sense of injustice to some effect, at least occasionally. It is important here to avoid too sharp distinction between a consent-based view of international legal legitimacy and a justice based view. Procedural legitimacy is not simply about state consent. On the one hand, consent itself may be moderated and mediated by the complexities of legal process, even without disappearing entirely from the international legal order. On the other hand, there are other important values located within the processes of international law. This may be understood in terms of the old arguments about the ‘inner morality’ of law and the rule of law. Or it may involve principles of public law that can be employed to guide international and global law-making. Or, most generally, it may simply involve an insistence that the justification of a position or a case follows an articulated, discernible, and coherent pattern of legal argument that draws on analogies, precedents, and the principles that are compatible with already widely accepted values. Finally, law can be viewed as a sociologically embedded transnational cultural practice in which claims and counterclaims can be articulated and debated and from which norms can emerge that can have at least some determination and argumentative purchase. Law, then, can play a communicative and epistemic role, shaping the conditions within which claims, including justice claims can be made and debated. The modern day Grotian will be inclined to stress the ongoing, unstable and subtle interplay between the sources of law and legal process on the one hand and the content of the law and o legal rules on the other.

[II.] Political Agency:-

That we should on the institutions, on negotiation, and on dialogue and deliberation is hardly an original suggestion. Albeit with significant variation, many have been tempted to go down a broadly Habermasian road-stressing the extent to which the terms of a just global order cannot be based on coercion nor on whatever bargain states and societies happen to be able to strike with one another, but require instead critical reflexion, uncoerced agreement of rational agents via a shared process of deliberation and reasoned justification.there have also been important arguments in favour of creating global institutional frameworks which widen the boundaries of the dialogic community. Even after assuming the presence of the multiple voices, the location of a stable and shared moral vocabulary and some degree of institutional stability, one still needs to ask about the conditions of effective political agency. Within domestic society, Habermas is ambiguous as to how far the discourse principle requires changes merely in procedures of bargaining or changes to the underlying balance of bargaining power itself. But however, we might think about power within domestic society, the conditions of global society make it impossible to evade the issue of unequal bargaining power. The massive inequalities of power and condition; the continued occurrence of war and intervention and the continued willingness of major states to use military power as an instrument of state policy; the role of power in skewing the terms of the global capitalist economy and the close links that exist between globalization and inequality; and the deformity of many of the core institutions of international society-all these point towards the pressing need to consider the minimal political preconditions that might underpin a global moral community in which reasoned deliberation and uncoerced consensus could have begin to have been possible. Although political theorists are perhaps naturally tempted to argue from the ceiling down, the wholly different scale of inequalities that exist in the world politics should push us to think hard about the minimum preconditions for an acceptable international political process. At a minimum this might include: some acceptance of equality of status, respect, and consideration; some capacity for autonomous decision making on the basis of a reasonable information; a degree of uncoerced willingness to participate; a situation in which the most disadvantaged perceive themselves having some stake in the system; and some institutional processes by which the weak and disadvantaged are able to make their voice heard and to express claims about unjust treatment. Apart from concern with the suffering of the most disadvantaged, Rawls gives two very good reasons why we should be concerned with inequality: first, that a large gap between rich and poor ‘often leads to some citizens being stigmatized and treated as inferiors, and that is unjust’; and second, because of the ‘important role of fairness in the political processes of the basic structure of the society of peoples’. Yet, despite ample evidence that some peoples stigmatized and treated the inferiors and still more evidence of the massive unfairness of international political processes, Rawls draws only the feeblest of conclusions as to what needs to be changed globally in the interests of justice. We need to give far greater attention to the links between the political and moral cosmopolitan and to the possible principles of global political justice that might inform those links. A revalidation of process legitimacy and procedural justice is crucial for the development of a stable, effective, and legitimate international society and for the nurturing of meaningfully shared foundations for the discussion of global justice. In a very important sense, the ethical claims of international society rest on the contention that such a society continues to be the most stable set of globally institutionalized political processes by which norms and rules can be negotiated on the basis of dialogue and consent, rather than simply being imposed by the most powerful. There is very little reason for supposing that progress in the direction of moral accessibility, institutional stability, or more balanced and equitable forms of political agency is likely to be easy. It may not be possible at all. There are nevertheless good reasons for believing that it is a direction which continues to be of crucial importance. Understanding how the rope bridge may be spun across the canyon is central both to the chances of world order in the 21st century and to the promotion of greater global justice.

05. PROSECUTING THE INTERNATIONAL CRIMES:-

The threat of terrorism to international peace, security and development remains a pressing issue for the international community. The expansion of UN efforts on counter-terrorism has produced a unique tool, the UN global counter terrorism strategy adopted by the general assembly. The unanimous endorsement of this document marks an historic step, bringing together 192 member states to demonstrate their resolve and ability to defeat the scourge of terrorism. The strategy outlines a coordinated and comprehensive response to terrorism at national, regional and global levels, while ensuring the respect for human rights and the rule of law. It put forward a concrete plan of action to prevent and combat terrorism and to address grievances and underlying social, economic and political conditions conducive to the spread of terrorism. The strategy will have the greatest success if it is fully achieved. This goal can be achieved by strengthening the capacity of the member states and the UN system, and by seeking the involvement of the civil society and the private sector. The main responsibility for implementing the strategy falls on member states. Nevertheless, various secretariat departments, specialized agencies, and UN programmes and funds contribute to this important endeavor by assisting member states with their implementation efforts.

01. OF THE INTERNATIONAL LAWS IN GENERAL

02. TAKING THE STATE TO THE COURT

[A]. State Sovereignty

[B.] Changes And Continuity In The International System

[C.] The International Court of Justice (ICJ)

03. DEMOCRACY AND INTERNATIONAL SOCIETY

[A.] The global order

[B.] On Peace-keeping attempts of the UN

[C.] THE RULE OF LAW

04. PURSUIT OF JUSTICE

[A.] Institutional Authority

[B.] Political Agency

05. PROSECUTING THE INTERNATIONAL CRIMES:-

06. CONCLUSION

01. OF THE INTERNATIONAL LAWS IN GENERAL:-