Ismilda Research Consultancy

From Charter to Constitutional Document.
The Road Map could have a vision on how to convert the UN Charter into a Constitutional Document. The UN Charter has gradually to be converted into a Constitutional document, which will be binding on the whole world irrespective of agreement. Such a conversion could be achieved by a particular year fixed in the Road Map.

The Charter may need some amendments. For instance in the Preamble, reference can be made to the Peoples of the World rather than to Peoples of the United Nations. The signatories (nations) could be considered merely as witnesses to the Act. Even ratification could be demanded from the signatories, but the power derived is neither from agreement or ratification, but from the Peoples’ of the World. The UN Charter could be an independent Constitution or be a predecessor to a World Constitution, or convert itself into a World Constitution in due course of time.

Provisions for research should be set in the Road Map, as to gradually alter the terminology in the Charter in order to incorporate Constitutional terminology and doctrines. The Road Map could contemplate a Research wing to carefully plan out the process.

Enunciation of New Principles
The Road Map besides setting dates could also contain New Principles, which will govern the future Charter and gradually the Constitutional Document. For instance Article 2 can be gradually modified as to accept besides Sovereignty of Nations, the Sovereignty of the Individual and enunciate principles to balance the two. Thus for instance the individual sovereignty of a group may be required to be protected by UN in cases like genocide.

Reforms in Security Council
The Security Council is perhaps the weakest and strongest component of the UN System. However, it is crucial that any changes in the Security Council have to be carefully planned. Here are some measures that could be considered by the Road Map.

1. The present permanent members could be maintained with the present status up to some convenient date.
2. The road map should visualize that this permanency of membership based on the situation at the end of World War II will not continue for a longer period beyond a prescribed date, by which date there will be no permanent members. Members of the UN Security Council could be elected under a formula prescribed either on a general basis or on proportional representation regionwise.
3. The concurring votes as defined in Art. 27(3) are to continue for a period fixed in the Road Map. Even prior to it restrictions should be brought about on the veto power in phased manner. Say in the first stage, veto can be exercised not by a single permanent member but by two of them together, later by three and so on. Finally the veto is to be removed completely.
4. The road map should visualize an enlargement of Security Council for the present.
5. The Road Map could visualize the Security Council in the near future as developing into an Executive body for the UN.

From Charter to Constitutional Document
It is possible to beget a World Constitution from the UN Charter once one is a believer in the theory of evolution and admits that a Constitution can have an extra legal origin. A World Constitution could be a result of a resolution passed by the General Assembly, resulting into a Convention. Countries could gradually rectify the Convention. The Convention could provide that on rectification by a certain number of countries, it will assume the status of World Constitution. If this document is further accepted in international relations as a Constitution, and it meets the requirements of Kelson’s Minimum Effectiveness, it will be a World Constitution. The word Constitution here has to be applied not in the strict sense of the Constitutions of the various States, but as a document for governance of international relations under certain situations.

RESEARCH ON GOA

Some Areas of Research
In order to motivate scholars to undertake research in Goa, we list here some interesting areas available for research on Goa.

Legal Research
Family Laws of Goa - The family laws of Goa are based on the Portuguese laws which were not repealed after the Liberation of Goa. They are of historical interest on one side as well as practical interest as they can be useful for India, in case it wants to enact a model Family Law.
For an effective research, the scholar should be able to comprehend Portuguese as well as English, and must have an idea of the Civil Law System as well as Continental Law System. If the researcher decides to carry a project, he will have to collect data by finding the present position of Family Law through interviews. Interviews can be carried with officials, lawyers, judges, public prosecutors and litigants. The de facto position of law is very interesting, as it is a blending of law envisaged for the Continental System and worked in a Common Law System.

Hindu Law from Portuguese Records -- There are various Portuguese records available in Goa which touch on the various aspects of Hindu Law, then prevailing in Goa. In particular, there is the enacted Code for the Hindus of 1853 and 1880. These records, if properly used, can be very useful in complementing the present knowledge of Hindu Law in India.
The scholar has to have a sound backgrounds of the principles and concepts of Hindu Law as well as a good command of Portuguese and English.

Transition from Civil Law to Common Law System. Goa experienced Civil Law System during the Portuguese regime and had to switch to Common Law System in the post- Liberation period. Hence the transition carries a valuable experience, which can give better insights into the dynamics of the two systems. In Goa, we still possess judges and lawyers who have worked in both systems and their information may be valuable for any comparative study. The oral experience is surely bound to be lost in a short time.

A research scholar in this field must have adequate knowledge of the two systems and the differences between them. It is an advantage if the scholar knows Portuguese as well as English, in order to read the material during the transition period. The documentary study can be supplemented with the help of interviews of lawyers, judges and litigants, who have experience in both systems.

Such a study can be very useful today as the two systems are coming closer in view of globalization.

Legal History of Goa (1961-2005) - This is an interesting but rather vast topic calling for an arduous work. Plenty of information is available in the various Government Bulletins published regularly besides in some other secondary sources.
The project requires the scholar to go through each and every Bulletin published in Goa during post liberation period.

Goa Legislative Assembly –It is interesting to conduct a research on the Goa Legislative Assembly as the State’s Legislative Organ. The researcher can look into the documentary part as well as in the dynamics of the institution. The records are easily available, due to computerization and the fact that the Assembly is developing an excellent library. The researcher can use various socio-metric techniques to evaluate the various functions of the Assembly.

Defections and Defection Law-This is an interesting area by which the defections and the defection law and its impact can be studied with respect to cases from Goa.

Research on Goa
Goa – Myths and Mythology
There are stories about Goa and the Mythological legends such as Parashuram reclaiming Goa from the sea, Parashuram’s Ashvamedha sacrifice at Harmal, Lord Shiva’s association with Cortalim, Lord Krishna’s sojourn at Dhudsagar, association of Pandavas with Margao and so on. All these stories need to be retold in the original version.

Pre-Liberation Portuguese Literature- In pre-liberation days many writers and poets in Goa wrote in Portuguese language with the facility of a mother tongue. However in their expressions, descriptions etc, they have left consciously or unconsciously a lot of local touch. For instance poets like Nascimento Mendonca, Adeodato Barreto have used a lot of Indian imagery in their poems. This can be an excellent project for any research scholar, who is well versed in Portuguese language and acquainted with the Indian culture.

Goan Literature -Goan Literature in English, Portuguese, Konkani or Marathi etc. is a rich source for research.

INFORMATION REQUIRED
Ismilda Research Consultancy Desires Following Information

· Information could be e-mailed in around 1000 words or less to be kept in our office files. This information will be made available to anyone who visits our office at Sunbeam Apartments –Cobravaddo, Calangute, Goa, India. E-mail : ismilda@sify.com
1. Information on courses offered by Universities, Academic Institutions related to: (a) World Constitutionalism, Mundialism, World Order or any allied area like Peace, Conflict Resolution, Human Rights etc or (b) Research on Goa.
2. Information on NGOs, Activist Groups, etc working on the above fields of : (a) World Constitutionalism or ( b) Goa.
3. Information on authors and books related to (a) World Constitutionalism or (b) Goa.
4. Informations on Individuals willing to guide, share information, assist young researchers in the above fields.

Our Publications

Author: Carmo D’Souza
Publisher : Agnelo D’Souza.

Law Books:
1) Legal System in Goa – Vol. I : Judicial Institutions (1510-1962) …Rs. 150 .First print exhausted
2) Legal System in Goa – Vol. II: Laws and Legal Trends (1510-1969) ..Rs. 150. First print exhausted.
The two volumes are part of the thesis for which the University of Poona awarded Ph. D. in 1990. It was submitted under the guidance of Dr. (Mrs.) R. K. Agrawala
3) The Indian and Portuguese Constitutions: A Comparative Study – Vol. I . Rs. 90
4) The Prime Minister of India – A Comparative Analysis – A booklet –Rs. 50
5) Towards A World Constitution. Limited copies ..Rs. 75.
6) Concepts in Law.
Understanding the Past, Analysing the Present and Visualising the Future.
Limited copies …Rs. 75.

Other Books
1) Angela’s Goan Identity: A novel … Rs. 35. First print exhausted.
Review by Prof. Peter Nazareth, University of Iowa on World Literature Today, 69:3,p.646
2) Calangute : In Search of Sands …Rs. 60
3) Discovering Discovery …..Travelogue …Rs.90
4) Yes Ministerji ….Humour on Goan Politics --- Rs.75
5) Portugal: In Search of Sands: A novel …Rs. 90
Review by Prof. Peter Nazareth, University of Iowa on World Literature Today, 78: 3-4, pgs. 86-87.
6) Inner Duel: A Play on the Life of St. Francis Xavier. Rs. 50

Towards A World Constitution (Contents)
· Foreword by Otfried Schrot, Lieutenant Colonel (retired), German Air Force.
· Chapter I–Introduction
· Chapter II-Jurisprudence and World Constitution
· Chapter III-Advantages of a World Constitution
· Chapter IV- Contents of World Constitutionalism
· Chapter V-World Constitution in the Making
· Annexure I – A Constitution For the Federation Earth –Summary of some provisions.
· Annexure II- UN Reforms.

Concepts in Law (Contents)
· Foreword by Prof. Dr. M.H.Hirani, Professor and Head, Department of Law, Pune University.
· Chapter I–Introduction
· Chapter II-Trials, Ordeals and Oaths.
· Chapter III-Concepts in International Relations.
· Chapter IV- Civilization and Cultural Blinkers
· Chapter V- Slavery, Bondage and Status.
· Chapter VI- Twenty-First Century Mega Show?
· Chapter VII- Concepts For A New World Order.
· Annexure I- The Menu of the Third Millennium- by Otfried Schrot, Lieutenant Colonel (retired), German Air Force.
· Annexure II-Movement for UN Reform 2007 Coordinator of movement Dr.phil. Klaus Schlichtmann.
· Annexure III-Transcend: A Philosophy of Peace And Development by Professor Johan Galtung
· Annexure IV-Toward The New World Civilization by Jan Mortier, The World Political Forum, Civitatis International.
· Annexure V- Kritik einer Weltverfassung (German) –neue methode group- neue.methode@kein.org www.kein.org
Annexure VI, City Montessori School –The School With A Difference.-Lucknow, India.

CONTACT: ismilda@sify.com
END
A World Constitution

Carmo D'Souza ( M.Sc., B.Ed., LL.M, Ph.D.(Laws))

· This article is intended for circulation in order to motivate an academic debate on the need for a World Constitution.

· I am greatly indebted to my brother, Dr. Anthony D’Souza (M.A., LL.M., Ph.D.(Laws) ) for reviewing this article and for his precious inputs and suggestions.

INTRODUCTION

11 September 2001, and the twin towers came crumbling down. The impact caused tremors in the established world system. The very foundations on which a section of civilization had postulated its existence were for the first time challenged. In a hurried bid that world tried to regroup itself in order to work out its social security. That was an opportunity for the world legal regime to rise itself from the ashes. Unfortunately, it was a lost opportunity. The international legal regime was found lacking in legal concepts, doctrines and suitable international institutions that could provide solutions . There was not even sufficient legal material developed by scholars that could crystallize into suitable approach for resolution of problem. Bereft of ideas, it was left to President Bush to chart out his own course based on state sovereignty and hurt national indignity. International law lost an opportunity to strengthen its foundations.

The world accepted the concept of war against terrorism. The term ‘war’ against terrorism while it emphasizes the urgency of the situation, demonstrates on the other hand, the weakness of the legal system or better the lack of a legal regime to fight terrorism. The word ‘war’ indicates something of last resort. Though ‘war’ here signifies urgency, yet the term represents a position of reaching the end of a rope, an option of last resort.

Several questions can be raised about the soundness of such wars against terrorism. Should a world legal regime permit it? Can’t it create dangerous precedents for the future? The US threat to fight it alone, couldn’t it result into several other complications? Hasn’t the world community a duty to protect a victim of terror, if there is really injustice? What would be the consequences if a weaker political power was the target of terrorism?

Afghanistan has been the tip of the iceberg. President Bush has indicated his determination to carry the war further into several other countries. Questions have been raised about the soundness of such steps on the international scenario. Labeled as US unilateralism, the big question is, whether such a step can be a solution to the problem or will it turn out to be in the long run another problem itself?

The tragedy of 11 September 2001 was a serious one and such situations are bound to repeat, whenever there is a sabotage of the systems on which the world community puts its trust. It may be the in the crash of planes on the twin towers, it may be in the hijacking at Khandhahar, or it may be in posting the anthrax letters. The methods possible are numerous as human mind is ingenious. Such sabotages, with international repercussions have to be dealt by the international regime, a regime that will grow as circumstances develop. The world gropes in waited breath for an answer. Could a well-drafted World Constitution fill up the lacuna in international law?

A World Constitution

The events of 11 September point towards the need for a World Constitution. It is necessary to start building up the concepts for a new world legal regime on the debris of the twin towers. The momentary opportunity was lost, soon after the collapse of the towers, as the world staggered without any ideas to counter the threat. However, it is not late for legal scholars to pick up the threads and start building the framework for a World Constitution.

Objectives

The objective of the article is to motivate a debate on the possibility of a World Constitution. It is not expected here to attempt either to suggest the model or to discuss in detail the legal material needed to the development of a World Constitution. However, certain tentative propositions are made here and they are meant mostly to generate debate. This article aims at building consciousness towards the need for a World Constitution in the near future. In order to build up a model, a more serious exercise is needed on the part of legal experts, who are in the know how of international law and politics. This article will have served its purpose, if it can motivate a debate in that direction.

Need of Concepts

There appeared to be lack of concepts in jurisprudence to tackle the problems posed by the terrorist activities especially as demonstrated by the events of 11 September. Hence it is necessary to begin with proper concepts for the development of a World Constitution. Legal history is a witness where improper concepts have resulted in unjust and oppressive regimes. Sometimes even good intentioned legislation, which was based on improper concepts, resulted in harsh measures [1] . Concepts while in one side facilitate thought processes during a period; on the other hand sometimes they imprison thought in an outdated time frame, and hence need to be liberalized. Hence though concepts are necessary, their proper review too is vital for the well being of society. For instance, it is necessary that legal scholars start building proper concepts that will liberalize thought processes of old time frame of national sovereignty to make it relevant to the modern world. If proper concepts are built, then it will be easy to make a World Constitution an acceptable reality to the community of nations.

Content

The present article is divided into the following five parts:

A) Preliminary Notions.

B) Preliminary Questions.

C) Advantages of a World Constitution

D) Stages for a World Constitution.

E) Concluding Remarks.

(A) PRELIMINARY NOTIONS

Before making a case for a World Constitution, it is decided to discuss here certain important concepts, notions, and institutions, required for a proper analysis of the subject. The material under this section is grouped under the following headings: (a) Concept of Sovereignty, (b) Social Contract Theory, (c) The Rule of Law, (d) Concept of War, (e) Constitutional Law, (f) International Law, (g) United Nations, and (h) Opinions of Prominent People on the New World Order.

Concept of Sovereignty

A proper understanding of the concept of sovereignty is very important today in order to permit the proper growth of internationalism in view of globalization . Over the years the concept of sovereignty has been very useful especially in building nationalism over the narrow parochial interests that existed in the earlier society. However, today it is necessary to carry out a proper jurisprudential study of the concept, in the light of new global pressures. As the concept of sovereignty served the development of nationalism, continued over use of it without due modifications, may be detrimental to the growth of internationalism.

The old idea of national sovereignty is in practice a myth today. De facto countries accept sovereignty in a very diluted form. There are so many global pressures, that a diluted sovereignty under the rule of law may be more meaningful and substantial than the old idea of unhampered sovereignty, which may be meaningless. So it is necessary that legal scholars remould the concept of sovereignty, so that it does not become a barrier to development of internationalism. Rather, such a new approach may make national sovereignty more meaningful in the real sense. For instance, the question that may be posed is whether the consent of a nation is necessary to force down a law on it, irrespective of its sovereign status, when such requirement is demanded by justice and is for the benefit of the world community as a whole. Should the municipal law always prevail over international law, irrespective of the threat it may pose to the world security merely on the ground of state’s sovereignty? It may be argued that the proposition that national law which is detrimental to the world community, should not prevail against international law will in fact enhance the concept of national sovereignties in the long run.

The concept of national sovereignty needs a re-look in the fast developing world situation. In order to understand better the issues involved in sovereignty, it is decided to present here, first the Hegelian concept of absolute and unrestrained sovereignty, followed by a jurisprudential analysis of the two aspects of internal and external sovereignty, to a conclusion of how external sovereignty is limited either positively by desire for peace, or negatively out of fear of other states. Then reference is made to the ever increasing interdependence of nations in the modern world, with a comment from Sydney Bailey that though nations treasure sovereignty, they were and are not wholly sovereign. The presentation is based on quotes, taken from authoritative text books on law.

· Hegel on Sovereignty - “Hegel believed that the sovereignty of individual states in the conduct of their foreign affairs was absolute and unrestrained. Disputes between states not susceptible of being settled by mutual agreement could be decided only by war, an institution which Hegel regarded at the same time as necessary and beneficial for the preservation of the internal health and vigor of the nation.” [2]

While we can understand the reasons for Hegel’s concept on sovereignty being suitable for his times , one can easily concluded that such concept has served its usefulness and is no longer relevant in the present context. Such approach today is detrimental to the growth of internationalism.

· Internal and External Sovereignty : “… And we have seen earlier, sovereignty has two aspects, internal and external. We have defined internal sovereignty as the supremacy of a person or body of persons in the state over the individuals or associations of individuals within the area of its jurisdiction, and external sovereignty as the absolute independence of one state as a whole with reference to all other states.” [3]

Is external sovereignty in terms of absolute independence of one state as a whole with reference to all other states in the present market economy a myth ?

· Is External Sovereignty in practice limited? - “External, like internal, sovereignty is in theory unlimited , but in practice it is limited either positively by a desire for peace or some material advantage on the part of the community concerned , or negatively by a fear of the power of some neighboring state to crush that community. Either of these considerations may lead a state into an association with others more or less real according to its conditions. The simplest form of such an association is an alliance, which may be either defensive- i.e. to give the association armed effect if any of its members are attacked – or offensive –i.e. to arm the association even though one of its members is the aggressor. Now, this is not a formal limitation of sovereignty, since any member of such an association is free to withdraw from its conditions whenever it feels inclined, even though the conditions of the alliance may lay down limits of time. A good example of this was seen when Italy withdrew from the Triple Alliance with Germany and Austria at the outbreak of war in 1914, and in the following year allied herself with the enemies of her former allies, a volte-face which she repeated in 1943.” [4]

Here is a reference to sovereignty being in theory unlimited but in practice limited. Should sovereignty in theory be really unlimited? Does it serve any purpose ? Should modern jurisprudence be concerned with redefining if necessary the theoretical aspect of external sovereignty?

· Interdependence of nations – “The ever-increasing interdependence of nations in the world today is most marked in the economic sphere. No modern civilized community can be entirely self-sufficient, and, however strictly a state may organize and control its internal economy, it cannot ignore the interaction of world economic forces. The extent to which any state can approach self –sufficiency must, of course, depend primarily on its size and natural resources, and on its political stability.” [5]

With economic interdependence of nations becoming so real in this global world, the question raised is whether the concept of sovereignty has to be redefined in the light of the new economic regimes exerting global pressures on individual nations.

· Nations are not wholly sovereign -“Nations treasure the concept of sovereignty as much as ever they did, yet nations never were, and are not now, wholly sovereign.” [6]

So, is it not necessary to check the usefulness of the concept of sovereignty in the light of above statement and keeping in mind the present global situation?

Social Contract Theory

Social Contract theory is very significant to understand how the municipal law of a state, irrespective of his choice and desires, can bind an individual. One wonders whether such an argument can be extended to the international scenario. For instance, can one postulate that countries, irrespective of their choices are bound by at least certain minimum provisions of international law necessary for survival of mankind ? Here authoritative extracts have been collected, first to bring out the social contract theory, then the doctrine of conditional surrender of rights and how contract secures equality. Lastly the views of Hobbes, Locke and Rousseau on the subject are highlighted.

· Conditional surrender of Rights - “Briefly stated, the Contract Theory argues that the state is born in a compact among a number of men who come together to end an intolerable state of nature. By the compact men abandon certain of their natural rights, but only those necessary to the establishment of a civil condition of society. The object of political society is, therefore, to secure that the rights not so abandoned continue to be guaranteed to the citizens. If the establishment of government is contractual, it follows that when government becomes tyrannical it breaks the contract, and therefore the members of the state have the right to remove such a government.” [7]

The Contract Theory was necessary to build the power of the State, while the conditional surrender clause took care of the society against the abuse by the state . Isn’t such a situation that happened earlier at the national level, developing on the global scenario? Hasn’t the international community got the right to force an erring state to respect the rights of the world community? Can one not refer to the conditional surrender of rights clause?

· Contract and Equality - “The contract secured equality, since thereby each, in giving himself up to all, gave himself up to no one.” [8]

If nations surrender their rights in line with the individuals will it not secure equality among nations?

· Hobbes’ View - “ In order to secure peace and to enforce the law of nature, Hobbes argued, it is necessary for men to enter into a compact mutually among themselves by which everyone agrees to transfer all his power and strength upon one man, or upon an assembly of men, on condition that everybody else does the same. The sovereign power thus constituted, called “Leviathan” or the “Mortal God” by Hobbes, should use the combined power and strength of the citizens for the purpose of promoting the peace , safety, and convenience of all.” [9]

Is there a need for some kind of Mortal God today at international level?

· Locke’s view - “ In contrast to Hobbes, who constructed the social contract as a pact of complete subjection to an absolute sovereign, Locke asserted that men in establishing a political authority retain those natural rights of life, liberty , and property ( often grouped by Locke under the single concept of property ) which were their own in the pre-political stage . “The law of nature,” said Locke, “ stands as an eternal rule to all men, legislators as well as others.” Only the right to enforce the law of nature was given up to the organs of the body politic.” [10]

Is the same principle applicable in a modified form to international relations? Can a just World Constitution play the role of the law of nature?

· Rousseau on Social Contract – “ Each man”, he said , “ in giving himself to all, gives himself to nobody ; and as there is no associate over whom he does not acquire the same right as he yields others over himself , he gains an equivalent for everything he loses, and an increase of force for the preservation of what he has.” [11]

Won’t the same principle apply to nations in the international field?

The Rule of Law

The rule of law is an essential component in the drafting of a World Constitution. Hence it is decided to present here some authoritative extracts on the rule of law, so that the reader can draw his own conclusions. To begin with the extracts deal with the definition of the term rule of law and the meaning of rechatsstaat , and then concern with the ideals and substance of the rule of law.

Extracts on politics, concern with the primacy of the rule of law over politics and limitations of politics so as not to infringe the law. A point is made how the rule of law forms the basis for a political order. Also highlighted is the present day concern on how the rule of law may have to protect citizens against the new ruler i.e. the Parliament, and the important role of rule of law in assuring Fundamental Rights. The last quote refers to the role of the rule of law in international relations specially in view of new global economic order.

· Rule of law -:Josef Thesing refers to a baseline definition of the rule of law. He writes: “ Its fundamental elements are marked out even more clearly by Klaus Stern: ‘Under the rule of law, the State exercises its power on the basis of laws adopted in a constitutional procedure so as to safeguard freedom, justice, and the certainty of the law’.” [12]

· Rechatsstaat – “A ‘Rechatsstaat’, a democratic State under the rule of law, is controlled and restricted by the law in all its activities, the most important point being to restrain governmental authority so as to protect the freedom of the individual. Accordingly, a ‘ Rechtsstaat’ is a State embedded in the law and legitimised by the law.” [13]

Can a well-drafted just World Constitution provide for the constitutional procedure so as to safeguard justice and the certainty of law at international level?

· Ideals behind the rule of law - “The rule of Law , as it evolved in national societies, was based on two ideals. First, that executive power should be derived from and exercised in accordance with law. Secondly, that law itself should respect the supreme dignity and worth of the human person.” [14]

Reference is made to the evolution of the rule of law in national societies. Isn’t it possible to say the same thing about the rule of law with respect to international relationships in view of the global trends today?

· Substance of the Rule of Law -The substance of the rule of law is explained by Gerhard Robbers in his essay ‘The Rule of Law and its Ethical Foundations’. He writes: ‘From time immemorial, the term ‘rule of law’ has described a collective of different and diversified principles which, to cap it all, is in a state of continuous dynamic development. If we scan the issues which are currently being debated, the catalogue of good principles that emerges is quite substantial .It includes the postulate that the applicability of any law should be predicted on its universality and publicity, and that any governmental action of importance must be enabled by Act of Parliament.’ [15]

Can we refer to catalogue of good principles on the international scenario? Can a World Constitution provide some basis for making applicability of law more predictable at international level?

· Primacy of Rule of law over Politics- A important element of the rule of law is that it enjoys primacy over politics. Gerhard Robbers writes: ‘ At an even higher level of abstraction we find the fundamental postulate of the rule of law, which says that the law enjoys primacy over politics. Politicians wishing to implement what is politically desirable must remain within the confines of the law, even though this may prove uncomfortable at times. The meaning of this is not that politics should be superseded by the law; such a development would be disastrous, and indeed it has at times progressed too far in real life.’ [16]

· Limitations of politics -‘What the primacy of the law as the fundamental postulate of the constitutional state really implies is that those who struggle over political issues should uphold and not infringe the law. Politicians are at liberty to change the law by the processes which, in turn, are laid down in the law itself; but this is all they can do.’ [17]

Can international politics remain ungovernable? Hasn’t the rule of law to have primacy over international politics? Can a World Constitution or a similar document with components of justice in it, make the rule of law more meaningful at international level?

· Rule of law as basis of political order -The rule of law is required as the basis of political order . Whenever the rule of law forms the basis of a political order , it ‘ teaches people to settle any conflicts about values or interest in conformance with legal rules and without resorting to violence. What is more, domestic peace leads to peaceful foreign relations. Currently, however , the practice of violating human rights in general and minority rights in particular has caused and is still causing all those horrible civil wars we are now witnessing, with all the consequent misery and distress suffered by masses of refugees.’ [18]

Does this not apply to the international field? Can a World Constitution bring down violations of human rights? What can secure better minority rights than a well drafted World Constitution with components of fairness and justice?

· Rule of law and Parliament - “ For the time being , the rule of law had fulfilled its prime purpose of protecting citizens against the power of the executive , thus removing the odor of submission. There was no one at the time who would have imagined that safeguards might be required to protect people against the new ruler- Parliament.” [19]

It is to be noted that safeguards against Parliament may be the new problem to be tackled. It is not sufficient that a Constitution drawn by a representative Parliament is the ideal piece. One has to take care that the Constitution takes into consideration the elements of justice. So could a World Constitution provide those safeguards ?

· The Rule of Law and Fundamental Rights - As per Gerard Robbers ‘First and foremost among the substantive elements of the rule of law is the assurance of fundamental rights . Freedom and equality , the dignity of man , and its various manifestations in the form of guaranteed human rights constitute traditional characteristic elements of the rule of law.’ [20] And further he writes, “ Within the confines of the rule of law, the meaning of law is quite different. Primarily, it comprises a set of rules without which peaceful existence in freedom would be impossible . It provides institutions that promote self-fulfillment……To furnish those structures that enable people to live together peacefully and, by the same token, underpin the outward freedom of the individual is the essential principle of the rule of law and, by closer analysis , the essence of the law itself.” [21]

Can a World Constitution be the best document to secure gradually in the world Fundamental Rights ? Constitutional experience in many countries of the world has shown the growth of Fundamental Rights.

· Rule of law in international relations - “The Rule of Law in international relations is usually taken to mean simply ‘the observance by States of international law as it exits today’. This, to be sure , is not an onerous obligation; but the ultimate goal must be that relations among States should be governed by accepted rules of conduct, that controversies should be submitted to judicial tribunals for settlement , and that means of enforcing judicial decisions should be devised. This would require that what constitutes ‘the law’ should be known with reasonable certainty and applied without discrimination. Judicial tribunals should act impartially and with complete independence. They should ascertain the facts by means of evidence presented by the parties, and should hear legal arguments on question of law. Their decisions should dispose of the matter by a finding upon facts in dispute and an application of law to the facts found, including when necessary a ruling upon any disputed question of law; and the parties should agree to accept and comply with the decision of such a tribunal.” [22]

The question is what can provide the accepted rules of conduct mentioned above and the judicial tribunal for the settlement of controversies? Can a well-drafted World Constitution, based on principles of justice and fair play provide the answer?

· Rule of Law and Economic Reforms - Josef Thesing in his book ‘The Rule of Law’ argues that the process of transformation and economic liberalization may be accompanied by increasing delinquency and spreading corruption, deficiencies in the system of law and order, which will lead to general loss of confidence in the process of democratization, the market economy and even the state itself. Therefore he further argues that the ‘ success of political and economic reforms decisively depends on the proper functioning of the rule of law.’ [23]

Can a World Constitution aid the rule of law to prevent such a chaotic process ?

Concept of War

War is recognized and accepted in international field though under certain restrictions . The concept of war have changed with the times. For instance, conquest was a recognized result of war that lead to a legal right to the territory. History often glorified great warriors and conquerors. At times war was accepted irrespective of the element of justice in it. Fortunately scholars during a particular period explored the concept of a just war and built jurisprudence round it. However, the concept of a just war too changed with the times and place. At times religious motives, resistance to missionary activities, etc. where sufficient reasons to justify a war. Today perhaps self-defence is one strong component in a just war. However even in the case of a war of self-defence, there are too many components that have to be taken into account, and one may not accept it as a blank cheque.

The traditional way of looking at war as conflict between powers is fast fading today . Mass media frequently projects other elements in war which were hidden earlier, such as the human suffering, victims of war, refugees ,etc. As was noticed in Afghanistan, this element was gaining priority as the war advanced. Hence it is necessary to have a re-look at the concept of war in the light of new developments.

Extracts presented in this part refer first to Kelsen’s reference to war as being sanctions in international law, then to the role of law in promotion of peace or controlling aggression, and to the question whether it is possible to banish war. Also there are extracts on whether the war instinct is genetic, on the possibility of destructive wars in future and on whether war is justified in the modern scenario.

· War as sanction ? “Kelsen lays down repeatedly that the sanctions of International Law are two kinds of force - war and reprisals. This is a remarkable conclusion. War, as known to International Law , is in no sense a sanction in the true legal sense. Although much has been written about the ‘just war’, this is essentially a moral , political , or ‘metajuristic’ conception . International Law is not concerned, except incidentally, with the causes of war , and its ‘laws of war’ are rules which are intended only to regulate a conflict existing de facto , but which have nothing to say to war de jure . Indeed , we may go farther: in the present state of the world , war, an instrument of national or political will, has only a de facto existence and is not a juristic phenomenon at all. It cannot be a sanction, for a legal sanction ( at all events, the sanction of force) must always be imposed by a superior and acknowledged authority – which does not at present exist in the international community. It was hoped by many that the League of Nations and the United Nations might develop into such an authority , but recent history has not fortified the hope. Kelsen , however , evades the difficulty by assimilating war and reprisals to the self–help of primitive communities….” [24]

Can a World Constitution at least provide some basis to find when a war is unjust ?Can war in the modern world continue as a non juristic phenomena?

· Law and promotion of peace or control of aggression: - “In the domestic affairs of nations, as well as in the international arena, law has aimed at serving as an institutional device for substituting aggressive force by peaceful forms of human relations. The past history of mankind demonstrates clearly that thus far the law has been more successful in curbing fighting within organized groups than in controlling warfare between such groups.” [25]

Is it a fact that greater stress was laid in the past on promotion of internal state order, with jurisprudence too evolving suitable concepts than on international order and peace? Could it be a fact that in the past mankind did not face so many problems when an international destructive forces could disrupt internal order of so many countries, such as posting of deadly poisonous substances by a terrorist group? Is it necessary to evolve new jurisprudence to face such problems?

· Banishing of war ?- Bodenheimer writes: “ In a world threatened with atomic destruction , this deficiency in the rule must be a cause for grave concern . In the words of Ranyard West, “ the trouble of modern society springs less from the individual self –assertiveness of its individual members than from its failure to master collective aggressiveness .” At this juncture of history, it is a matter of speculation whether a remedy for banishing international war will be found in the future. Some distinguished students of human nature have expressed considerable doubt regarding the possibilities for a satisfactory solution. Sigmund Freud, for example, was convinced – at least in the later periods of his life – that the sociable and creative impulses of human beings are fully matched and counteracted by a negative force, the “death instinct,” which finds one of is outlets in the human desire for aggression and destruction. This powerful drive, Freud believed, stands in the way of an abolition of war. He expressed some hope, however, that the progress of culture and “ the justified dread of the consequences of a future war” might result within a measurable time in putting an end to the wagging of war. More recently, the German ethologist Konrad Lorenz came to the conclusion that “intraspecific fighting” is common to animals and men, but like Freud he did not rule out the possibility of devising some effective controls on man’s bellicose impulses .” [26]

The fact that human nature by itself may or may not work for abolition of war is a scaring problem. Hence it is more important then, to control such impulses by the rule of law which can attempt at abolition or regulation of war.

· Instinct of warfare –is it genetic? – ‘Bronislaw Malinowski addressed himself specifically to the question whether the instinct of warfare was implanted in the human genetic system. He answered this question in the negative. “ Human beings fight, not because they are biologically impelled, but because they are culturally induced…War is not the original or natural state of mankind.” If war came from an innate biological urge, he said, it would most certainly occur at the earliest stages of anthropological development , where these inclinations manifest themselves in their most direct and uninhibited way. War does not, however, exist among the most primitive groups. Later, when intertribal fighting makes its appearance , it is only an occasional affair and remains on a small scale. Such wars may break out when one organized group feels threatened in its interest and security as a collective unit by the actual or anticipated interference of other units. Hunger may also drive an aggregation of human beings to the warpath. Fighting in these cases does not take place for its own sake, but under the impulses of fear, anger, or desperation. While wars of conquest occur at later stages of development , they are, in Malinowski’s opinion, conducted because they are economically and politically profitable and not because human beings are driven into them inexorably by a supposed “animal of prey” constitution of human nature.’ [27]

From Malinowski’s analysis one can conclude that instinct of warfare was not implanted in the human genetic system. His explanation of wars of conquests is interesting for a jurisprudential analysis. One can find out the role played by legal concepts in sustaining war as a means of conquest, vassalage, colonization and so on. Once the role of law in building up these concepts is detected, one can attempt in constructive remoulding of concepts to suit the present global world.

· Possibility of Destructive civil wars - “The course of future history will provide the final answer to this perplexing question. Even if a unification of the globe should some day be achieved, this would not exclude the possibility of destructive civil wars waged between some constituent units of a world state. We cannot be entirely sure whether there will not always be a sufficient number of strong-willed, power-hungry leaders able to capture the militant instincts of men and thus to render permanent peace a utopian dream.” [28]

Hence it becomes imperative that one deals with the problem of war jurisprudentially. It is necessary to analyze thoroughly the concept of war.

· Wars today – Are they justified? -“Can wars waged for national or ideological aims be justified in the atomic age when we balance the wholesale destruction and loss of life likely to be caused by them against the consequences of a radical renunciation of the use of force? .”