Abstract: It is difficult to interpret traditional connotation of the right to peace properly，when facing the increasing changes of international and domestic security situation. As "the third generation of human rights", for lack of the key element of the right to peace with the intensive nature of the international collective human rights, the right to peace does not highlight the function of protecting peace. It is imperative to build the right to peace system of a Multi-layer and dual meaning, which includes the domestic and international human rights, the collective and individual rights and “peace” and “safety”.

 

Keywords: Right to Peace; Human Rights; Third Generation of Human Rights;

 

 

Peace is the joint aspiration of all people in the world. The Charter of the United Nations states in its preamble “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person,... and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security.” The Declaration on the Preparation of Societies for Life in Peace adopted at the United Nations General Assembly in 1978 has cited the right to peace for the first time in the world. The declaration reaffirms “the right of individuals, states and all mankind to live in peace.” It also states: “Every nation and every human being, regardless of race, conscience, language or sex, has the inherent right to life in peace. Respect for that right, as well as for the other human rights, is in the common interest of all mankind and an indispensable condition of advancement of all nations, large and small, in all fields.”¹ The right to peace is the basis for every citizen in the world to enjoy other basic rights. If the right to peace is lost, political, economic, social and cultural rights would all be groundless and, therefore, inaccessible.

 

However, as the world pattern and international situation are changing at a tremendous pace, with rapidly accelerating development of science and technology, the conflicts between traditional and modern, national and ethnic, as well as religious beliefs and values in the international community are increasingly intense, the maintenance of people’s right to peace is confronted with unprecedented challenges, and the interpretation of the right to peace in traditional ways are incomplete. In face of complex world and regional situations, national security has become China’s key issue of concern, which has been included into its endeavors to comprehensively deepen the reform. On April 15, 2014, Xi Jinping chaired the first meeting of the Central National Security Commission, which signaled the formal institutionalization of such a mechanism. On July 1, 2015, the National Security Law was adopted at the fifteenth meeting of the Standing Committee of the Twelfth National People’s Congress, providing norms for the work concerning national security. However, a series of major problems about safeguarding national security and Chinese citizens’ right to peace should be solved. For example, is it reasonable to simply understand the right to peace as an international collective human right under the new situation? In face of social changes, how should the meaning of the right to peace respond to citizens’ appeal for peace?

 

 

“Peace and development are the themes of the contemporary world.” Though the meaning of this statement has not changed, the world situation is under constant changes. Whether in international relations or the stable situations surrounding and within our country, new problems keep rising amid the interweaving of tradition and modernity, such as the Ukraine crisis, the Islamic State of Iraq and Syria (ISIS), the Myanmar situation, and the South China Sea issue that has triggered a great clamor due to the interference of external powers. The security situations in fields such as financial security, network information security and cultural security, and in new fields such as environmental security and nuclear security are becoming prominent with the fermentation of complex factors. As we all know, the stability of one country is not only determined by its domestic economic development, democratic system and governance capabilities, but also factors such as stability of the external world and diplomatic capabilities. The protection of citizens’ right to peace, due to the constraints of both domestic and overseas factors, takes different forms.

 

Firstly, the challenges confronting China’s security situation and right to peace are the key to the study of the right to peace. China’s National Defense White Paper in 2015, “China’s Military Strategy,” (hereinafter shortened as the 2015 National Defense White Paper) describes the national security situation as follows: “China still faces multiple and complex security threats, as well as increasing external impediments and challenges. Subsistence and development security concerns, as well as traditional and non-traditional security threats are interwoven. Therefore, China has an arduous task to safeguard its national unification, territorial integrity and development interests.”²

 

At present, China’s national security situation mainly faces the following problems: firstly, the South China Sea situation is increasingly sensitive due to external interventions. The nature of the South China Sea issue is “the encroachment of foreign countries upon China’s sovereign rights in the South China Sea.” Besides, “Japan and India have put their feet in the South China Sea issue, while the United States is deepening its military presence, and the ASEAN states’ navy construction is going on—all these finally direct at the response to the rise of China, attempting to maintain the security of the South China Sea through power balance.”³ A few countries still use the traditional thinking of hegemony to judge the development in China, obviously attempting to contain China by creating tensions in the regions surrounding China. Secondly, terrorism, extreme nationalism and separatism interweave. The “Tibetan Independence” and the “East Turkestan” issues are still not resolved, and their forces, with support of external forces, have produced a series of terrorist conflicts and incidents jeopardizing domestic peace and people’s safety of life and property. Thirdly, cyberspace sovereignty is challenged. The Internet has been rapidly developed in China, and become important national infrastructure. However, the Internet security does not look sound. The “Snowden Incident” has warned China of Internet information security protection. Fourthly, the Taiwan issue and the Hong Kong issue both face new situations. In March 2014, the so-called “Sunflower” students’ movement took place in Taiwan, and a social movement occupying the “Legislative Yuan” was also started, targeting the Cross-Strait Service Trade Agreement. Hong Kong was not stable recently. The “Occupy Central” unlawful assembly occurred in September 2014 to exert pressure on the central government and the Special Administrative Regional government as well.

 

Secondly, the world security situation is undergoing changes or has been changed -- terrorist forces are rampantly expanding, Japanese right-wing forces are rising to amend the pacifist constitution, and the “Color Revolution” of the Commonwealth of Independent States spreads against the backdrop of the Ukraine crisis. The 2015 National Defense White Paper describes the international situation as follows: “There are new threats from hegemonism, power politics and neo-interventionism. International competition for the redistribution of power, rights and interests is tending to intensify. Terrorist activities are growing increasingly worrisome. Hotspot issues, such as ethnic, religious, border and territorial disputes, are complex and volatile. Small-scale wars, conflicts, and crises are recurrent in some regions. Therefore, the world still faces both immediate and potential threats of local wars.” The most noteworthy is the rise of the right-wing forces in Japan. The Japanese right-wing forces have never directly addressed issues such as the colonial invasion and comfort women. The Abe cabinet is actively seeking the position of a military power and demonstrating the Japanese military presence in various places worldwide. Within Japan, the cabinet is seeking to amend the pacifist constitution and attempting to revise the security pact and drop the ban on the right of collective self-defense. The series of actions should alarm all peace-loving countries and the international community, and regional countries in particular.

 

 

The right to peace can also be called the right to peace and security.⁴ Literally it is the combination of two words, peace and right. The main difference between the right to peace and the right to peace and security is in the difference between the meaning of peace and peace and security, which also involves the substantive content of the right to peace. The right to peace is a normative collective human right has been widely challenged in the Western society, because it is deemed that the subjects of human rights can only be individuals.⁵ However, it is clearly provided in the African Charter on Human and Peoples’ Rights adopted by the Organization of African Unity in 1981, “All peoples shall have the right to national and international peace and security.” The Declaration on the Right of Peoples to Peace adopted by the United Nations General Assembly in 1984 proclaims, “The peoples of our planet have a sacred right to peace.” Therefore, the meaning of the right to peace may be summarized as everyone has the right to enjoy peace. 

 

 

 The so-called “third generation human rights” mainly originated from the “third generation human rights” theory according to different historical stages raised by Karel Vasak, former legal adviser to the United Nations Educational, Scientific and Cultural Organization (UNESCO). The “third generation human rights” theory mainly covers: first generation negative rights, second generation positive rights and third generation joint rights. The so-called joint rights mainly refer to the expansion of the subjects of human rights to collectives. The background of the theory was mainly fields such as the right of people to self-determination, the right to development, the right to peace, and the right to the environment that people worked actively to realize during national liberation movements after World War II. As the above human rights involve the common problems faced by the mankind for survival and development, they are called joint rights.⁶ Compared with individual rights, collective human rights have a most distinctive feature, that is, the subjects owning and exercising the rights are states, nations, the human community, etc. It is generally regarded that the subjects of the right to peace, as an international collective human right, are states in the international community. What is challenged by the Western society is the conflict between the “collective” attributes of the collective human rights and the idea of “human rights,” that is, “human rights define humans as individuals and endow individual requirements a reasonable priority over the society and other social collectives.”⁷ The challenge of the Western society points out one key “weakness” of the collective human rights, particularly the right to peace. Prof. Li Buyun wrote, “In today’s world when the value of human rights is more and more extensively accepted,...people will raise peace and security to the height of human rights. It is indisputable as an objective of human pursuit or a policy or strategy for the international community. However, as a legal right, the definitions of peace and security, contents of rights and relevant obligations have many uncertain factors.”⁸ 

 

Due to the provisions in international texts and the efforts of the international community, especially countries in the “third world,” the attributes of the right to peace being a collective human right have become international consensus. However, emphasis on the attributes of the “international collective” alone cannot well protect this right. In light of the African countries which were the first to write down the right to peace, neither the protection nor the effect was optimistic, which was shown in the Rwanda genocide more than a decade after the right to peace was declared. Though we cannot ascribe the failure to the difficulty of transforming the collective right to peace into an individual right, it is still undeniable that to practice collective rights for individuals is very difficult. 

 

 

The right to peace belongs to the categories of the “third generation human rights” and international collective human rights, and should have and inherit the attributes of “first and second generation rights,” especially in terms of subjects of rights and obligations.⁹ To stress the attributes of the right to peace as an international collective human right are not favorable to the definition of the subjects of rights and the subjects of obligations as well as the performance of the subjects’ responsibilities. The attributes of the right to peace should be reconstructed: on the basis of restoring the attributes of the individual right to peace, construct its meaning on two levels, international and domestic, collective human rights and individual human rights. Besides, it is necessary to integrate the right to peace and the right to security into the right to peace and security in the international and domestic discourse systems on the basis of the current legal environment and legal texts. 

 

Firstly, the right to peace has the dual attribute of being an international human right and a national human right. The definitions of the right to peace now are mostly given by the United Nations or regional organizations, such as the Organization of African Unity. Generally, the definitions are given as a kind of value and policy objective, from which we can have an inkling of their efficacy. As a human right, the right to peace is not only an international human right but also a domestic right. Whether the nature of a country is a social contract generally accepted in the Western society or a tool for the class struggle as defined by Karl Marx, a country, first of all, must safeguard interests of the people and the ruling class. John Locke has observed that even in a country ruled by one person, the right to rule is placed in the hand of one person, “only for the welfare and security of the general public.” When human beings hand over their respective rights to the society and legislative bodies, their motive is only “for better protecting themselves, their own freedom and property.”¹⁰ It is indisputable that the state is a subject of obligation of protecting human rights, and it is no exception with the right to peace. On the national level, ethnic conflicts, racial conflicts and terrorism constitute dual threats to national security and people’s right to peace and security. Besides, the National Security Law provides that in the event that the state violates any individual rights or interests of a citizen in the course of defending the public security, the individuals shall be entitled to claim compensation from the state. Therefore, the dual attribute of the right to peace as an international human right and a domestic human right is affirmed on both the juridical and regulatory levels.

 

Secondly, the right to peace has the dual attribute of being a collective human right and an individual right. The attribute of the right to peace as a collective human right has been generally accepted in the academic circle, and “the methods to realize this right have to and can be approached through the coercive measures of the international community.”¹¹ However, the attribute of the right to peace as a collective human right cannot deny that it is an individual right. From the individual perspective, the subjects of human rights are individuals.¹² Though this statement is biased, it states the most fundamental value of human rights, that is, protecting individual life, property and freedom. Marx asserts, “the existence of living individuals” is the first prerequisite for human history, and “human social history is always the history of the individual development of these humans, no matter whether they are aware of this point.”¹³ Jack Donnelly also thinks that the harmonious settlement of individual rights and collective rights “is perhaps generally... possible in practice” and “is the best” for the protection of rights.¹⁴ 

 

Thirdly, the right to peace shall have two levels of meaning, peace and security. There is much dispute on specific contents of the right to peace, and the meaning of peace is relative and abstract. The expansion of the contents of the right cannot substantively realize the right, but this cannot be taken as an excuse for objecting the right’s change from being abstract to being concrete. Some scholars think that the meaning of the right to peace is ambiguous, if the more complex “right to security”¹⁵ is included, it would be more difficult to define it. But security as a right can definitely be included into the category of the right to peace, or, the right to peace has the meaning of both peace and security, but with international and national, collective and individual connotations.

 

The mainstream argument, internationally, on the right to peace mainly includes: the right to individual security and the right to peace and security.¹⁶ One type of the right to security involves individuals, overlapping with the main contents of the life right and the personal right; on the other hand, the right to security has the attribute of the right to peace. A scholar has observed, “The right to security per se does not have complete transcendent independence. As the extension of security is wide enough, the right to security must have specific interests as objects of protection and be realized in specific objects of protection.”¹⁷ The meaning of the former right to security is an important content of the life right and the personal right, and if it is separated, the contents of the personal right and the life right would be incomplete. So it is not necessary to separate the right to personal security apart. The latter has the dual attributes, individual and collective, basically consistent with the attribute of the right to peace. If the right to peace in a broader sense excludes the right to security, the internal system of the right to peace might become incomplete and reliability of the right be reduced. The National Security Law enumerates many contents about national security,¹⁸ which cannot be covered by the right to peace in the narrower sense or the right to security alone. 

 

* GONG Xianghe(龚向和), professor at the Law School at Southeast University; ZHU Jun(朱军), doctoral candidate at the Law School at Southeast University.

 

1. Li Buyun, On Human Rights, the Social Sciences Academic Press, 2010, at 101.

 

2. See 2015 China’s National Defense White Paper, “China’s Military Strategy”.

 

3. Chris Rahman，Martin Tsamenyi, “A Strategic Perspective on Security and Naval Issues in the South China Sea,” Ocean Development & International Law,Vol．41,No.4,2010，at 329．Quoted from Zeng Yong, Summary of Overseas Research on the South China Sea Issue, Contemporary International Relations, Vol. 6, 2012.

 

4. The explanation of the meaning of the right to peace from the perspective of the right to peace and security was proposed by Professor Li Buyuan, and has now been generally accepted in the academic circle. Its main contents are mostly described under chapters about collective human rights. See Li Buyun, Human Rights Jurisprudence, Higher Education Press, 2005, at 338-339; Xiong Wanpeng, The Philosophical Basis of Human Rights, the Commercial Press, 2013, at 137; Liu Maolin, Yang Guisheng and Qin Xiaojian, The Improvement of the Chinese Constitutional Rights System: with Reference to the International Covenants on Human Rights, the Peking University Press, 2013, at 70. A scholar has also observed, “Compared with peace, the definition of security is more complicated. Peace may be included into security. The juxtaposition of security and peace has a grammatical problem. Therefore, the right orientation of the right to security will surely be too cumbersome and general.” See Du Xuewen, The Right to Peace as a Human Right, doctoral dissertation of Soochow University, 2010.

 

5. Research Project Team on Human Rights Theory of Guangzhou University, Outline of the Socialist Human Rights Theory System with Chinese Characteristics, Chinese Journal of Law, Vol. 2, 2015.

 

6. Guo Daohui, Essentials of Jurisprudence, the Hunan People’s Press, 2005, at 118.

 

7. Jack Donnelly, Universal Human Rights in Theory and Practice, trans. Wang Puqu et al, the China Social Sciences Publishing House, 2001, at 178.

 

8. Li Buyun, Human Rights Jurisprudence, the Higher Education Press, 2005, at 339.

 

9. Du Xuewen, “A Tentative Analysis of the Subject of Right and Subject of Obligation of the Right to Peace: with a Comment on the Subject of Right and Subject of Obligation of Human Rights,” Journal of Shanxi University, the Philosophy and Social Sciences, Vol. 4, 2011.

 

10. John Locke, Two Treaties on Government (Second), trans. by Ye Qifang and Qu Junong, the Commercial Press, 2012, at 80.

 

11. Li Buyun, “On Individual Human Rights and Collective Human Rights,” Journal of the Graduate School of the Chinese Academy of Social Sciences, Vol. 6, 1994.

 

12. Zhang Wenxian, “On the Subjects of Human Rights and Human Rights of Subjects,” China Legal Science, Vol. 5, 1991.

 

13. Selected Works of Marx and Engels, Vol. 4, the People’s Press, 1972, at 321.

 

14. Jack Donnelly, Universal Human Rights in Theory and Practice, trans. by Wang Puqu et al, the China Social Sciences Publishing House, 2001, at 181.

 

15. There is still little description of specific meaning of the right to security. But scholars have put forward series of so-called “departmental right to security” such as: right to life safety, right to personal safety, right to occupational safety, right to consumer safety, right to food safety, the weak people’s right to safety, and right to environmental safety. See Wei Yiming, Which of “Life Right”, “Life Safety Right”, “Life Health Right” Is Fit for Constitution: The Outlook on Life in the “SARS” Phenomena, Tribune of Political Science and Law, Vol. 6, 2003; Shen Zhimin and Ge Zidan, A Study of the Government Guarantee Mechanism in Citizens’ Personal Safety Right, Hunan Social Sciences, Vol. 2, 2010; Feng Yanjun, On the Development of Legal Interest and Strengthening of Protection of Occupational Safety, Study and Exploration, Vol. 1, 2011; Liao Shankang, Study of Protection of Consumers’ Right to Security in E-Commerce, Guangxi Social Sciences, Vol. 3, 2012; Tu Yongqian, International Rules and Legal Protection of Food Safety, China Legal Science, Vol. 4, 2013; Guo Jie, On Laborers’ Occupational Safety Right and Legal Protection, Jurist, Vol. 2, 2007; Chen Kaiqi, On Citizen’s Marine Environment Safety Right: Reflections on the Oil Leaking Accident in Bohai Bay, Legal Science (Journal of the Northwest University of Politics and Law, Vol. 2, 2013.

 

16. Xu Xianming, International Human Rights Law, the Legal Press, 2004, ar 6.

 

17. Zhang Hongbo, “Right to Security as a Human Right: Comparison, Meaning and Rule,” Nanjing Social Sciences, Vol. 5, 2013.

 

18. See National Security Law, Articles 17-34.