Keywords: Right to Peace;HumanRights;International Debate;

 

 

 

After the Second World War, the international community reflected on the enormous damage and catastrophic consequences brought by the war, while making institutional endeavors to create a lasting peace. The Charter of the United Nations not only utterly denies the absolute jus ad bellum (right to war) of the state recognized by traditional international laws, but also connects human rights with peace. The Charter 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, in the equal rights of men and women and of nations large and small,” thus laying the foundation for the right to peace. On this basis, the Universal Declaration of Human Rights makes it clear in its preamble that human rights are “the foundation of freedom, justice and peace in the world” and declares that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.” Thereafter, the two international covenants on human rights (the International Covenant on Civil and Political Rights and theInternational Covenant on Economic, Social and Cultural Rights) adopted in 1966 also adhered to the position set by the Universal Declaration of Human Rights when the universal consensus has been reached among international community -- human rights are the foundation of peace. The Proclamation of Teheran issued on the International Conference on Human Rights in 1968 recognized that “peace is the universal aspiration of mankind and that peace and justice are indispensable to the full realization of human rights and fundamental freedoms;” the Helsinki Final Act signed by the United States, the Soviet Union and Western European countries in 1975 also proclaimed that “respect for human rights and fundamental freedoms is an essential factor for the peace, justice and well-being.” In these two declarations, human rights and peace are considered to be key elements for each other. The Charter of the United Nations and all the above-mentioned documents demonstrate such an idea: no human rights, no peace, and vice versa.

 

It is the first time to stipulate peace as a right in international treaties when the Declaration on the Preparation of Societies for Life in Peace was adopted by the United Nations General Assembly in 1978. This declaration mentioned“the right of individuals, States and all mankind to life in peace” and 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.” Then the Declaration on the Right of Peoples to Peace adopted by the United Nations General Assembly in 1984 solemnly reaffirms that “the peoples of our planet have a sacred right to peace.”

 

The latter declaration includes four aspects: firstly, the declaration proclaims that the people of our planet have a sacred right to peace; secondly, it solemnly declares that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each state; thirdly, it demands that the policies of states be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United Nations; fourthly, it appeals to all states and international organizations to do their utmost to assist in implementing the right of peoples to peace through the adoption of appropriate measures at both the national and the international levels. Although this document is without international legal binding in a proper manner, it has a significant influence on the formation and development of the right to peace.¹

 

As the only international norm with legal effect mentioning “right to peace and security” up to now, the African Charter on Human and Peoples' Rights adopted in 1981 stipulates in Clause 1, Article 23: “All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States.” Besides, the Charter of the Association of Southeast Asian Nations of 2007 reiterates, in its preamble, the common desire and collective will to live in a region of lasting peace.

 

Moreover, civil society organizations, especially the Spanish Society for International Human Rights Law, and many other non-governmental organizations have also recognized the existence of a right to peace in numerous documents prepared by experts and endorsed by hundreds of non-governmental organizations. The Santiago Declaration on the Human Right to Peace of 2010 was the result of a four-year world campaign of the Society that brought together inputs from all regions of the world. The initiative is noteworthy in its deliberate effort to seek universal values by drawing upon local and international law from Western and non-Western legal traditions. An international observatory of the human right to peace was also created. More than 900 civil society organizations and cities have endorsed the United Nations documents submitted through the Society.In 1998, more than 200 non-governmental organizations drafted the Asian Human Rights Charter over a three-year discussion process. The Charter asserts: “All persons have the right to live in peace so that they can fully develop all their capacities, physical, intellectual, moral and spiritual, without being the target of any kind of violence.”

 

 

The International Convention on the Elimination of All Forms of Racial Discrimination states in its preamble: “Discrimination between human beings on the grounds of race, color or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State.” The International Covenant on Civil and Political Rights recognizes human rights as the foundation of freedom, justice and peace in the world. General Comment 6 of Human Rights Committee emphasizes the relation between the right to life and preventing war or prohibiting any propaganda for war, including the relation with nuclear weapon proliferation; General Comment 14 clearly defines the relation between prohibiting war and the right to life in explaining the relation between nuclear weapons and the right to life. The Convention on the Elimination of All Forms of Discrimination Against Women states that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields. The Convention on the Rights of the Child has an optional protocol on the involvement of children in armed conflict. The Convention on the Rights of Persons with Disabilitiesreaffirms the crucial role of human rights in general for creating fair and equal societies founded upon freedom, justice, development and peace.

 

 

 

The debate on whether the right to peace can be a human right recognized by international laws started by a resolution adopted by the Human Rights Council of the United Nations in June 2008, namely Resolution 8/9: Promotion on the right of peoples to peace.² The resolution requests the United Nations High Commissioner for Human Rights to convene, before April 2009, a three-day workshop on the right of peoples to peace, to further clarify the content and scope of this right; to propose measures that raise awareness of the importance of realizing this right; to suggest concrete actions to mobilize states, intergovernmental and non-governmental organizations in the promotion of the right of peoples to peace; also requests the High Commissioner for Human Rights to select as soon as possible 10 experts, through consultations with states and relevant stakeholders, to attend the workshop and report on the outcome of the workshop to the Council at its eleventh session, to be held in June 2009.

 

The Human Rights Council authorized the Advisory Committee, in consultation with Member States, civil society, academia and all relevant stakeholders, to prepare a draft declaration on the right of peoples to peace in Resolution 14/3 of 2010, for which the Advisory Committee established a drafting group on the Draft Declaration on the Right of Peoples to Peace. In its resolutions 8/9, 11/4 and 14/3, the Council recognized the right to peace; a number of Member States voted against the resolution. The Advisory Committee suggested a focused approach to clarify the right to peace and to enhance its implementation. The Advisory Committee therefore proposed that peace should be conceived as both the absence of organized violence within a country or between countries and the comprehensive and effective protection of human rights, gender equality and social justice, economic well-being and free and widespread expression of different cultural values, without discrimination or restraints.³

 

 

Each time when voting for resolutions adopted by the Human Rights Council on declaration on the right of peoples to peace, the participating states and state groups are with fundamental and irreconcilable disagreement. The voting results show that developing countries from Asia, Latin America and Africa vote for the Draft while European and American countries against it.⁴ Arguments against it include:

 

Firstly, the Draft mainly adjusts the relation between states instead of the relation between one state and its people, namely the right of peoples to be respected and protected by the state. Derived from the inherent dignity of human, human rights shall only refer to the rights enjoyed by individuals rather than the collective. Although the collective is made up by individuals, the collective has no human rights as it is not human. Since the traditional concept of human rights considers state as the obligation subject of human rights, not only civic rights and political rights but economic and social rights are corresponding to state obligations. However, the collective human rights take the state as the right subject or even the major subject corresponding to each individual and community, which obscures or even reverses the obligation subject of human rights and provides convenience for autocratic regimes to transfer the blame on them to others. The traditional concept of human rights considers the state as the enemy and greatest danger to human rights, whose fundamental function is to confront state power in order to protect the inherent dignity of human. Therefore relating human rights with state power is extremely dangerous, because the real threat is that the so-called state human rights are antithetical to individual human rights, transforming human rights from a tool for liberation to a kind of cover-up for new tyrannical autocracy.⁵

 

Secondly, the Draft does not provide a clear definition on the right to peace and there is also no concept on the right to peace within the existing framework of international laws, therefore issuing the declaration on the right to peace initiated by the Human Rights Council through negotiation lacks legitimacy. That is because the open working groups authorized by the Council are with a political attribute only. Furthermore, the connotation of the right to peace is ambiguous and easily confused with other similar concepts, such as what is the relationship between responsibility of protection and the right to peace? Can UN peacekeeping operations and international humanitarian intervention be considered as the implementation of the right to peace? If no consensus can be reached on these fundamental issues, it can only lead to scattered distribution and waste of resources that would otherwise be used for more important concern instead of this pointless area.

 

Thirdly, this Draft overlaps with the Declaration on the Right of Peoples to Peace adopted by the United Nations in 1984 to a large extent, with no more innovative points of worth proposed. This judgment is based on the fact that the nature of the right to peace defined in the Draft is still declaratory rather than relievable and there is no constructive results achieved on the relation between peace and the full fulfillment of human rights. 

 

Fourthly, even if the declaration on the right to peace shall be formulated, the Human Rights Council is not the proper agency to do it as the issue on peace and security shall be addressed by the United Nations Security Council according to the functions of different departments defined by the Charter of the United Nations.

 

European and American countries insist that establishing the right to peace on no basis of traditional concept and mechanism of international laws on human rights not only violates the fundamental spirit of international laws on human rights but also conflicts with the specific rights that have been established. The irreconcilable disagreement would erode and destroy the legal mechanism of international laws on human rights established on the basis of the Universal Declaration of Human Rights and other international covenants on human rights since the end of the Second World War, especially for its universal applicability. There is still room for negotiation if the discussion is limited to the relation between peace and human rights.

 

However, European and American countries demonstrate different operational approaches during the voting: for each resolution on the right to peace proposed by the Human Rights Council, the United States takes a firm position against it while the European Union and most of its member states take a relative gentle approach to voice different opinions by abstaining in the vote.

 

 

In despite of the controversy, all states have reached consensus on the right to peace to some extent. It is the consensus that promotes the continuous development and evolution of the theory and the system of the right to peace and makes it become a human right recognized by international laws gradually.

 

Firstly, wars and armed conflicts are not in accordance with the fundamental principles of modern international laws; secondly, human rights and freedom would be violated on a large scale in the state of wars or armed conflicts; thirdly, the principles of international cooperation and human rights protection are of great importance to preventing wars and armed conflicts; fourthly, the right to life is closely related to peace; fifthly, the legal basis of human rights is human dignity. In short, human rights, peace and development are interdependent and mutually promoted. In wars or armed conflicts, all human rights, especially for the right to life, will be severely threatened or violated.

 

 

 

To be specific, the right to peace includes the anti-war right and the right to live in peace.

 

The anti-war right refers to the right of peoples to demand the state of not being engaged in any war or war-related activities, such as the right to demand the state not to start a war or be engaged in wars, arm races, military alliance or war propaganda.

 

The right to live in peace refers to the right of peoples to live in a peaceful environment, including the right to demand the state to disarm, cut weapons of mass destruction, and realize religious and national equality, settle international or domestic disputes in a peaceful way.⁶

 

According the Draft Declaration on the Right to Peace proposed by the Human Rights Council, the connotation of the right to peace can be divided into core rights and peripheral rights. Core rights cover seven areas: international peace and security, disarmament, human security, resistance and opposition to suppression, peacekeeping, conscientiousobjection to military service, freedom of religious belief, private military and security companies; peripheral rights cover five areas: peace education and training, development, environment (especially climate change), victims and vulnerable groups.⁷

 

 

Firstly, the establishment of the right to peace derives from the fundamental value pursuit of human dignity, which is also the source of human rights. Both the internationalization of human rights concept and the formation of international human rights mechanism are closely linked with catastrophic aftermaths caused by the Second World War, especially the severe violation on human dignity. Since the generation of human rights is corresponding to the existence of threats on human dignity, the human rights would be unnecessary if there is no threat on human dignity. Therefore, whether the right to peace is part of human rights or not depends on not only the basis of human dignity, but also the existence of threats on human rights. In fact, it is the existence of special threats, such as wars and armed conflicts, makes the right to peace come into being and become necessary.

 

Secondly, the right to peace, as part of human rights, is not only an individual right but a collective right, which means that the right to peace is more than that of someone, but that of unspecific people of thousands, or even that of the whole nation or human race. The Draft Declaration on the Right to Peace makes it clear in Article 1: “Individuals and peoples have a right to peace. This right shall be implemented without any distinction or discrimination for reasons of race, descent, national, ethnic or social origin, color, gender, sexual orientation, age, language, religion or belief, political or other opinion, economic situation or heritage, diverse physical or mental functionality, civil status, birth or any other condition.” The Article reveals the inherent nature of dual subjects owned by the right to peace.

 

Thirdly, the connotation of the right to peace not only defines the scope of rights enjoyed by individuals and people, but also specially emphasizes on state obligation and responsibility. Clause 2, Article 1 of the Draft states that “states, severally and jointly, or as part of multilateral organizations, are the principal duty-holders of the right to peace” and the maintenance, promotion and performance of the right to peace constitute the fundamental obligations of all states. In order to perform state obligations, “states shall abide by the legal obligation to renounce the use or threat of use of force in international relations.” All states, in accordance with the principles of the Charter of the United Nations, shall use peaceful means to settle any dispute to which they are parties. All states shall promote the establishment, maintenance and strengthening of international peace in an international system based on respect for the principles enshrined in the Charter and the promotion of all human rights and fundamental freedoms, including the right to development and the right of peoples to self-determination. According to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts of the International Law Commission, states that have committed an internationally wrongful act are liable to make reparation for any injury, whether it be material or moral, caused by the internationally wrongful act of a state. Such an internationally wrongful act (action or omission) must be attributable to the state and further constitute a breach of an international obligation of the state. Clearly, such obligations arise through a number of treaties and conventions as well as customary international laws on the topic, referring both to peace and war times.

 

Fourthly, the content of the right to peace is interrelated and overlapped with the rights defined in existing international legal systems on human rights. Clause 3, Article 1 of the Draft notes that “the right to peace is universal, indivisible, interdependent and interrelated.” Peace not only means the continuation of life, the maintaining of health and the peace of mind, but also the respect for humanity, the protection of property and the safety of ecology. If the right to peace is violated, the rights to life, health, dignity, property and environment would not be protected. To some extent, the right to peace is the prerequisite and basis for the realization of all human rights.

 

Fifthly, the core in the right to peace are non-derogative. Generally speaking, “non-derogation” in international human rights law means that the state shall not derogate or damage certain rights prescribed in international covenants on human rights orcustomary laws even if it is in a state of emergency or wartime endangering the survival of the state. At present, there are three comprehensive international covenants on human right clearly stipulating the non-derogative rights, namely the International Covenant on Civil and Political Rights of 1966⁸, the European Convention on Human Rights of 1950⁹ and the American Convention on Human Rights of 1969¹⁰; there are also similar stipulations on non-derogation in the International Humanitarian Law applied in period of armed conflicts and the Geneva Conventions of 1949. Besides, the international customary laws and rules on human rights define at least four rights as non-derogative: the rights to forbid racial segregation or discrimination, torture, slavery and forced labor and genocide. Although the scope of non-derogative rights defined by the above-mentioned covenants and conventions differs, there are two primary criteria in common: be with certain “absolute attribute of fundamental rights” and with no need for derogation in a state of emergency.¹¹ Considering the connotation contained in the core of the right to peace, both individual rights of human security and forbidding racial discrimination and state obligations of comprehensive disarmament and peacekeeping are within the scope of non-derogative rights. 

 

Sixthly, the right to peace is the protected object of international human rights laws not only in peacetime but also in a state of wars or armed conflicts, especially for noncombatants and civilians.

 

 

 

The right to peace is closely related with the right to life. On one hand, the right to life is the basis for the right to peace: as peace is for better life, it will be meaningless if there is no life, while the fulfillment of the right to life will lay asolid foundation for the right to peace; on the other hand, the right to peace is a necessity for the right to life: only when the right to peace is realized, the right to life will be enhanced in a lasting and reliable environment. After the Second World War, the bill on declaration of human rights proposed by the Radical Socialist Party in the National Constituent Assembly of France proclaims that “the right to life is first among human rights” and “the right to life means the abolition of war thought.”The Declaration on the Right of Peoples to Peace adopted by the United Nations in 1984 particularly notes that in the nuclear age the establishment of a lasting peace on Earth represents the primary condition for the preservation of human civilization and the survival of mankind. Thus it can be seen that the right to peace and the right to life are of mutual influence and interdependence. As the right to peace is closely related with the right to life, the right to peace can be defined as the right of peoples to live in non-war state, or even the right to live in peace, but “live in peace” here does not mean “life.”

 

The differences between the right to peace and the right to life are as follows:

 

Firstly, the difference in the date of origin: the right to life was born at an early stage of capitalism while the right to peace was gradually generated after the Second World War; secondly, the difference in the cause of origin: the right to lifeoriginated from the conflicted industrial relations in laissez-faire capitalism and the huge gap between the cruel exploitation, oppression, corrupted life of bourgeoisie and the poverty, absent social security, depressed social status of labors, or in short, it was generated in respect that the survival of people was threatened, while the birth of the right to peace is based on people’s in-depth reflections on war; thirdly, the difference in value pursuit: the right to life was in pursuit of survival while the right to peace was security; fourthly, the difference in content: the right to life includes rights that are closely related with the survival of people, such as the rights to labor, work and rest, while the right to peace consists of the anti-war right and the right to live in peace; fifthly, the difference in approach of realization: the right to life is mainly realized through the protection on labor rights and interests as well as the improvement of social security systems while the right to peace is through the deprivation of the state’s right to start a war and the active participation in and promotion of the peace developed by people. 

 

 

Peace and development are the spirit of the age. HerbertSpencerhad an insight into the interdependent relations between economic development and peace and thus developed a theory called “Spenserian peace theory,” which shows the more developed an economy becomes, the stronger desire for peace it may have; overseas market expansion and emigration can be conducted in a peaceful manner, with no need for starting a war.¹² The right to peace and the right to development are in-depth interpretation for the spirit of the age in the area of human rights. “If one human right cannot be enjoyed when another is violated, the two are indivisible; if the fulfillment degree of one right is dependent on that of another, the two are interdependent.¹³

 

The right to peace and the right to development are two interdependent rights like this:

 

On one hand, the right to peace is the prerequisite and basis for the right to development, which is confirmed by a series of international legal documents. The Declaration on the Right to Development proclaims:“International peace and security are essential elements for the realization of the right to development, and the elimination of colonialism, neo-colonialism, apartheid, all forms of racism and racial discrimination…would contribute to the establishment of circumstances propitious to the development of a great part of mankind;” Article 7 of the Declaration reiterates: “All States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries.” The Declaration on the Establishment of a New International Economic Order of 1974 also notes that we “shall correct inequalities and redress existing injustices, make it possible to eliminate the widening gap between the developed and the developing countries and ensure steadily accelerating economic and social development and peace and justice for present and future generations.” The Declaration on the Right of Peoples to Peace of 1984 emphasizes that life without war serves as the primary international prerequisite for the material well-being, development and progress of countries, and for the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations. These documents issued by the United Nations demonstrate such a consensus of the international community: there is no development without peace and there is no right to development without right to peace. From the other aspect, the right to development is the fundamental guarantee for the right to peace. To some extent, the nature of peace and security is about development and the world peace would be achieved only when the joint development of human being is realized. The reason is that, ultimately, poverty and underdevelopment are the origin of conflict and turmoil, and the peace can only be realized on the basis of development.

 

 

Differing from the one-dimensional relationship of mutual promotion between the right to peace and the right to life or development, the relation between the right to peace and the right to self-determination is more complicated, presenting a dynamic contradictory state of both interdependence and conflicts.

 

On the positive side, the performance of the right to self-determination, especially the rise of national liberation movement, makes many nations get free from the colonial domination and lead an independent path of development, eliminating the long-term instability factors caused by national oppression and exploitation and realizing the right to peace. On the negative side,“is there a nation in the world where all people speak the same language, belong to the same nationality, share the same culture, religion and tradition? In fact, the answer is possibly ‘No.’”¹⁴ When multinational states become the major form in the world, the right to self-determination acts as a “double-edged sword” that may stir up national separatism of different ethnic groups in multinational states from time to time, intensifyingconflicts and confrontation among different ethnic groups and accelerating the “centrifugal force” of separation from sovereign states, thus causing new social turmoil or even wars and destroying the right to peace. To mitigate the negative effect, India made a special statement on this issue when signing the two international covenants on human rights, emphasizing that the right to self-determination is applied only to the people under foreign control, not applied to an independent sovereign country or a part of a people or nation.¹⁵

 

Although it might take a while to stipulate the right to peace through the international covenant on human right with international legal binding across the world, international laws, including international human rights laws, are in an open system with inherent tension that continues to develop and evolve since it comes into being. According to Article 38 of the Statute of The International Court of Justice, the sources of international laws include “the Court, whose function is to decide, in accordance with international law, such disputes as are submitted to it shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” 

 

During the forming process of international conventions, there are many resolutions adopted by the United Nations or documents without legal binding gradually evolving into opiniojurisin practice. That the Universal Declaration of Human Rights adopted by the United Nations General Assembly has been generally accepted by all nations and become international conventions on human rights is the best example. As the Draft Declaration on the Right of Peoples to Peaceproposed by the Human Rights Council itself is an important component of the international soft law, it shall promote the right to peace to head for legalization and wide acceptance. 

 

* TANG Yingxia (唐颖侠), associate professor and deputy director at the Research Center for Human Rights, Nankai University.

 

1. Christian Guillermet-Fernández and David FernándezPuyana, The 70thAnniversary of the Creation of the United Nations: Giving Peace a Chance, Vol. 2, 2015.

 

5. Ben Qiu, On the Restricted Collective Human Rights, published onSocial Science Front, No. 3, 2008.

 

6. Jian Chang, et al., eds.,A Civic Reader for Knowledge of Human Rights, Hunan University Press, 2013, at 185-186.

 

8. Rights prescribed in articles 6, 7, 8 (Clause 1 and 2), 11, 15, 16, 18 of the Covenant are non-derogative.

 

9. Rights prescribed in articles 2, 3, 4 (Clause 1), 7 of the Covenant are non-derogative.

 

10. Rights prescribed in articles 3, 4, 5, 6, 9, 12, 17, 18, 19, 20, 23 of the Covenant are non-derogative.

 

11. Renren Gong, Non-derogative Rights and Customary Rules, published onGlobal Law Review, No. 1, 2010, at 9.

 

12. Akira Iriye, War and Peace in the 20th Century, World Affairs Press, at 33-34.

 

13. XianmingXu, eds. Principles of International Human Rights Law, China University of Political Science and Law Press, 2008, at 283.

 

14. GuimeiBai, Rights of Self-Determination and Minorities in International Law, published on Peking University Law Journal, No.4, 1997, at 28-36.

 

15. Buyun Li, eds. Human Rights Law, Higher Education Press, 2005, at 328.