Human Rights and Domestic Jurisdiction

Human rights has increasingly become a very important topic of discussions and debates in recent decades. It is the perennial need for some basic rights and needs being met, protection of some vulnerable groups from abuse and exploitation and the need for a universal standard of such rights that holds the governments accountable and responsible which has made the topic cardinal.

Human Rights

According to United Nations, human rights are the rights or privileges permanently or essentially vested and available to all human beings irrespective of their race, sex, nationality, ethnicity, language, religion or any other status or grounds.
In brief, human rights includes some essential rights such as the right to life and liberty, freedom from slavery and torture, freedom of speech and expression, right to education, right to work and many other important rights.


One of the historical milestones achieved by the United Nations is the establishment or creation of a comprehensive and sophisticated body of human rights law which is a universally available code for all the governments and people of the world to abide by, The International Human Rights Law. The United Nations has laid down a vast range of internationally accepted and protected rights which include civil, cultural, political, economic and social rights. The UN has also established several mechanisms for the promotion and protection of these rights It has also provided for assistance to governments in carrying out their responsibilities in this regard.


The core of this body of law can be found in the Charter of the United Nations, adopted by the United Nations General Assembly in 1945 and the Universal Declaration of Human Rights adopted by the General Assembly in 1948.


Domestic Jurisdiction


The clause regarding Domestic Jurisdiction can be found in Article 2(7), Chapter I of the Charter of the United Nations which is quoted as follows:


“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII”.


The main objective behind the insertion of this Article in the UN Charter was to diminish or limit the authority of the UN to interfere or intervene into the domestic matters or disputes that specifically fall within the domestic jurisdiction of the member states.


In considering this reservation, the most important thing that comes into notice is that it occupies a much more prominent position and has a much wider scope and is much more comprehensive than the previous provision in the Covenant of the League of Nations. In the Covenant the reservation in favour of matters within the domestic jurisdiction was embodied in Article XV.


Drafting and Evolution


This reservation was almost taken verbatim from Article XV of the Covenant when originally drafted at Dumbarton Oaks. It stated that the provisions of the Section relating to the Settlement of Disputes should not apply to disputes which by international law are solely within the domestic jurisdiction of the states concerned. At San Francisco however the four sponsoring powers proposed for an amendment that aimed to extend the scope of the reservation, whereas the Dumbarton Oaks proposal merely excluded disputes within the domestic jurisdiction from the provisions for the pacific settlement of disputes, it was proposed that the principle of non-intervention by the UN in matters within the domestic jurisdiction of members should be placed in the First Chapter of the Charter as one of the principles of the Organisation , thereby making it clear that it was to apply to all provisions of the Charter. Under this proposed amendment the principle of non-intervention in matters within the domestic jurisdiction was to be subject to one qualification, that is, it was not to prejudice the application of Chapter VIII, Section B entitled as, “Determination of threats to the peace or acts of agression and action with respect thereto”, of the proposals.

Effects of the Reservation


The effect of the reservation can be summarized as:


(A) There is a strict restriction on UN to not intervene or interfere into the matters which are essentially within the domestic jurisdiction of any state.
(B) The Members are not required to submit such matters to settlement under the Charter.
(C) The fact that a dispute arises from matters which are essentially within the domestic jurisdiction of any state does not prejudice the right of the Security Council to take all measures necessary to preserve peace and prevent aggression.

Important Cases

South African Case


In 1946 the Parliament of the Union of South Africa passed the Asiatic Land Tenure and Indian Representation Act, which allegedly denied South African citizens of Indian descent certain civil rights. The Government of India, contending that the Act breached treaty obligations and violated the spirit and letter of the United Nations Charter, requested the General Assembly to pass a resolution urging South Africa to abstain from implementation of such policy of discrimination and requesting a report from both nations for the next plenary session. South Africa questioned the authority of the Assembly to pass a resolution of such nature, asserting immunity under Article 2(7) of the UN Charter.


South Africa further insisted that the International Court of Justice should be asked for an opinion whether a matter is “essentially within the domestic jurisdiction of any state”. Finally a modified version of the requested resolution was passed.


Article 2(7) which was brought up for the first time in this controversy, is of tremendous importance , since it embodies the main limitation upon the scope of United Nations jurisdiction. Wherever the clause applies, the United Nations is powerless to act.


Åland Islands Dispute


The Åland Islands which is an archipelago located between Finland and Sweden, asserted a claim of self determination and independence from Finland inorder to reunite and be incorporated with its mother nation, Sweden so as to protect its Swedish culture and language. This dispute was referred to the Council of the League of Nations who entrusted the case to the International Committee of Jurists. The Council was of the opinion that the matter was not one of donestic jurisdiction. Doubt as to Finland’s sovereign status and the fact that there was danger that the controversy would cause international repercussions were both advanced as reasons for assuming jurisdiction.

Conclusion


The fact that so many of the matters upon which peace and international welfare depend remain outside the field of international law shows that up to the present its main function has been to define the jurisdiction of states and define their respective spheres.


One of the most important function of the UN is to revitalize and strengthen international law so that States collaborate continuously to promote the common welfare of all people through international agencies established for this purpose. At the first sight it might appear that the effect of debarring the Organisation from intervening in matters which are essentially within the domestic jurisdiction of any of its members is largely to deprive it of the authority to fulfill that purpose, but at the same time it is well to realize that provided there existed a willingness among its members to cooperate to maintain international peace and security, to achieve international cooperation in the solution of international economic, social and other problems, and to secure universal respect for human rights, the UN would, without having to meddle in the domestic affairs of any state, be in a position to exercise influence to which no member could remain indifferent even with respect to matters which fell within its donestic jurisdiction.

References


https://www.un.org/en/global-issues/human-rights
https://legal.un.org/repertory/art1.shtml
https://www.quimbee.com/cases/the-aaland-islands-question-report-submitted-to-the-council-of-the-league-of-nations-by-the-commission-of-rapporteurs
https://jstor.org

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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