Abstract: To make peace an aspect of human rights is an idea that appeared within nearly half a century. Studies on this issue have not been enough, and those in China have just gotten started. In order to better safeguard and realize people’s right to peace, it is of great inspiration and significance to explore the general context of mankind’s pursuit of peace, trace back the development process of peace as a human right, observe the obstacles to the institutionalization of the right to peace, and analyze why these obstacles came into being.

 

Keywords:  Right to Peace; human rights; Reality; Predicament;

 

 

Living in an environment of peace and being free from fear have been aspirations of mankind since ancient times. “A Journey to the Land of Peach Blossoms” written by Tao Yuanming of the Jin Dynasty (265-420 A.D.) has expressed people’s desire for a peaceful and stable life, and weariness of wars and turmoils. Zhang Zai of the Northern Song Dynasty (960-1127 A.D.) also put forward the ideal of “ordaining conscience for the Heaven and Earth, securing life and fortune for the people, continuing lost teachings for past sages, and establishing peace for all future generations,” which has reflected the Chinese ancestors’ hope for a peaceful life. ImmanuelKant’s “Perpetual Peace” analyzed the way to achieve everlasting peace from the perspective of international relations. It should be noted, in particular, that he worked as if he was showing an example of international convention to design clauses that can achieve eternal peace. While Kant has inherited the itemized and geometry-style philosophical tradition established by Baruch Spinoza’s “Ethics,” he has opened the first chapter of the international law on the issue of peace, and inspired the research and thinking of the international order of Jürgen Habermas, John Rawls and other scholars.

 

From the perspective of the international law, if the international humanitarian law system which gradually improved in the mid and late 19th century made war more constrained, and battlefields more rule-based, then the Paris Peace Conference and the Treaty of Versailles in the early 20th century were standardization attempts to restrict the use of force, and the Pact of Paris in 1928 was an legislation effort specifically trying to stop war. Of course, they can hardly be regarded as successful. Use of force, and even acts of obvious aggression appeared after the Paris Peace Conference and the Treaty of Versailles. These legal documents failed to prevent Japan’s invasion of China in 1931, Italy’s invasion of Ethiopia in 1935, as well as Germany’s invasion of Austria in 1938, of Czech and Poland in 1939, of Belgium and France in 1940, of Greece and the Soviet Union in 1941, and of Hungary in 1944. This series of conflicts became the large-scale and disastrous Second World War.

 

After the Second World War,the content governing wars and armed conflicts was updated and related rules built. moreover, a peaceful international order was established in three aspects: Firstly, the United Nations Charter declared in its preamble the world people’s love for peace. Item 4 of Article 2 specifically stated that member countries should refrain from the threat or use of force, and it also established its institutional security mechanism through the institution design in the main body of the Charter with a view of effectively curbing wars; Secondly, through the Nuremberg Trial, the Tokyo Trial and other international and domestic judicial activities, leaders and main participants that dominated wars and adopted cruel means in wars were punished, which warned people of ethical, political and legal consequences of destroying peace; Thirdly, with the UN General Assembly’s adoption of the ruling of the Nuremberg Trial, such rules became part of the International Law recognized by countries all over the world.

 

 

The above-mentioned efforts only laid a foundation for the right to peace, not the right itself. The real attempt to declare peace as a right is the result of further efforts within the framework of the UN.

 

Although Article 28 of the Universal Declaration of Human Rights can be understood as “a peaceful society is a condition for people to enjoy human rights, it has not touched upon peace as a right.”In April and May, 1968, the UN General Assembly invited delegates of 120 countries and held in Tehran the first World Conference on Human Rights¹, in which the Proclamation of Teheran²was adopted, and was later adopted by the UN General Assembly in the same year.³ After the elaboration on various human rights issues, the 10th paragraph of the Proclamation of Teheran specifically stated: “Massive denials of human rights, arising out of aggression or any armed conflict with their tragic consequences, and resulting in untold human misery, engender reactions which could engulf the world in ever growing hostilities. It is the obligation of the international community to co-operate in eradicating such scourges.” The 19th paragraph stated: “Disarmament would release immense human and material resources now devoted to military purposes. These resources should be used for the promotion of human rights and fundamental freedoms.”

 

In 1981, Resolution 36/67 of the UN General Assembly identified the third Tuesday ofSeptember, when the General Assembly convenes, as the International Day of Peace. In 1984, the General Assembly adopted the Declaration on the Right of Peoples to Peace.⁴ On September 7, 2001, the General Assembly adopted Resolution 55/282, deciding that from 2002, the International Day of Peace is set on September 21. The resolution declared it also as a global day of ceasefire and non-violence, calling upon all states and peoples to stop actions of hostility on this day, and marking this day through education and raising public awareness.

 

After its founding, the Human Rights Council inherited work in this area, and made further efforts. In 2012, the Human Rights Council at its 20th meeting noted the draft declarationprepared by the Advisory Committee chaired by Mona Zulficar,⁵ and decided to establish an open-ended intergovernmental working group, whose job was to take the draft of the Advisory Committee as the basis, consider existing and future ideas and opinions, and gradually study and discuss the draft of United Nations Declaration on the Right to Peace.⁶ In February 2013, the working group held its first meeting. In June, after consideration of the report on the first meeting⁷, the council adopted Resolution 23/16, requiring the chairperson to prepare a new draft based on the discussion of the first meeting and the informal discussions during the break time. From June 30 to July 4, 2014, the second meeting of the working group was held in Geneva. In September, the council adopted Resolution 27/17, deciding to convene the third meeting in April 2015, in which the drafting work of the declaration was expected to be finished. And it was required that the chairman as the reporter should hold informal consultation and prepare a revised text.

 

The United Nations Declaration on the Right to Peace is still in preparation and discussion. It can be estimated that it still needs time to be adopted. And even if it is adopted, it is at most a resolution of recommendation with no possibility of having more effect, and therefore it’s hard for it to generate real binding power.

 

 

Peace as a human right is indeed the good aspiration of many countries and the majority of people, and lots of efforts are required to turn this aspiration into reality. While the international community has started some processes in terms of forming the institution for the right to peace, difficulties and controversy have been obvious. The main obstacles are reflected in the following aspects:

 

 

As one of the third-generation human rights, the right to peace in the first place faces the question of who on earth are the subjects of it. Individuals, people, or states?If this is a right that can be claimed only by a collective entity, who is the real representative?While people’s opinions highly vary, is there any possibility that some are represented with or without knowing the right? If the right to peace is truly claimed and realized, those questions need to be answered in the first place before institutional designs.

 

 

Another tough issue is the bearer of the obligation. Is it individual, state or the international community? The war crime accountability system established by the related rules of the International Criminal Law today is actually targeted at individuals, nevertheless with logic contradictions. Becausereal decision-makers are states, there is no doubt that states should be responsible for wars and armed conflicts. States and international organizations should shoulder their due obligations and responsibilities if the right to peace calls for avoiding the use of force, prohibiting war propaganda, participating in disarmament negotiations, standardizing and reducing arms trade, fighting against illicit trade in all kinds of weapons, and requiring responsible military actions and peacekeeping operations. In terms of curbing arms races and arms trade, as well as achieving disarmament such as elimination of weapons of mass destruction, the state responsibility system should be further extended, rather than limited to civil liabilities. In terms of prohibiting war propaganda, promoting of peace education and advancing human security, states should take more obligations.

 

 

In theory, everyone has the right to enjoy full peace and receive human rights education, and also has the right to opposing foreign oppression, colonial occupation or tyranny. However, how can these rights be realized? Can the international community truly undertake the responsibility of respecting and upholding the right to peace? The essence of realizing the right to peace lies in prevention and restraint of war, and punishment of war crimes and criminals. Considering that the international law system itself is weak, the human rights system is weak too. The right to peace is a weaker aspect of the system. The right to peace is almost a right that cannot be effectively guaranteed and realized.

 

The international law is weak. The most obvious demonstration of this judgment is that the existence and implementation of it depend on agreements of states. Based on the relativity principle of the effectiveness of treaty and the principle of customary consistent opponent,rules can be regarded as not binding without explicit or implicit agreements between countries. Without the recognition of a state, it is almost impossible to constrain and punish the state according to the law.⁸

 

As in a weak system, human rights are reflected not only in the fact that basic rules in the human rights field should be based on the consent of states, but also in the fact that in the fieldthere has not been any multilateral dispute settlement mechanism, like in the field of trade. The Universal Periodic Review (UPR) of the Human Rights Council marks a major advancement. Although its binding effect is not obvious, there is still progress. The UPR and the reporting mechanism of various human rights treaties all have development functions. However, the obligation of states is always limited and voluntary. The individual appeal mechanism is established by many countries, but they are all based on the Optional Protocol, with limited participators. The achievement of the European Human Rights Court and the American Human Rights Court is still remarkable, while the one in Africa is less impressive. However, there has not been a global human rights judicial institution, and the extensive existence of national exemption rules has also reduced the possibility for the international law to protect individual rights and interests.

 

The question aboutthe right to peace is far more difficult than the first-generation and second-generation human rights issues. The first-generation human rights can generally be appealed according to domestic laws (with limitations in line with the international law). The second-generation human rights are not less defective. The third-generation human rights, includingthe rights to peace, environmentand development, sometimes make more confusion.

 

 

Right is a combination of individual needs and available resources of the society. Therefore, the possibility of the existence and realization of the right to peace should be considered from the perspective of the structure of international relations and the international law.

 

 

The international law has long been, and, still, is a law among states, rather than for the people. This can be not only recognized through its name itself, but also reflected by the rule system and the practice of the international law. The different versions of the international law, be them ius inter gens, law among nations, (public) international law, or derechointernacional, международноеправо, express rules among states. The V?lkerrecht in the German language and other similar versions are the only exceptions. Therefore, it is generally thought that the international law is a set of rules dealing with issues among states, or at most quasi-states or state-like entities, rather than with legal issues between state and people as well as different peoples. This kind of law that involves private transnational exchanges has been given a name of “transnational law” by US scholar Philip Jessup in the middle of the 20th century.

 

According to its practice, the international law has long been in an object position, governed by arrangements among states. What the international law cares and settles is the right and obligation arrangements among states, such as rules of war and peace, and rules of land and maritime territory. Treaty relationship is the consultation and agreement between states. And diplomatic relationship is an intergovernmental network to facilitate international exchanges. Individual problems are side products of the exchanges between countries. The state exemption system which gained the attention of people in the 19th century made the individual an existence that can be, and even must be ignored in international relations. The “humanitarian intervention” appeared in the late 19th century is in essence a way for some countries to defend those who belong to their own faction and attack those who don’t, though it is in the name of protection of minority ethnic groups and religious groups. After the Second World War, the international lawgradually showed signs of human centrism. The UN Charter began with “We the peoples of the United Nations.” A series of human rights protection treaties came into being. The central position of people is recognized in the international law, and state and property exemption has turned gradually from an absolute principle to a limited principle. The idea of “coercive law” came into existence, and war and actions against humanity have become crimes. The concept of “universal jurisdiction” has been formed. However, these changes were not enough to turn the international law from being state-centered to human-centered, making it upgrade from a law among states to one dominated by human rights. The superiority of state exemption has greatly weakened the human-centered idea, whether from the major issues which the international law concerns, or from states’ treatment of and attitudes towards human rights and humanitarian issues, particularly appeals related to basic human rights and even coercive laws. In this context, it is highly difficult to make the right to peace an effective claim in the international law.

 

 

An important reason why it is difficult to legalize or institutionalize the right to peace lies in the structural problems of the international law. Laws give way to politics, and justice gives way to power. While the international community has been trying to avoid this situation and find real truth and justice since ancient times, in reality, that desire can hardly be realized effectively. Big powers pursue what they want and punish those who they disagree with, and weak countries have no choice but to be subject to their arrangements. The weak countries can hardly claim and realize their rights. The powers do what they like, and the weak get punished from time to time; this is the reality long existing in the international community, and is the key reason why the international law cannot exist and be implemented in a unified and universal way. On the issue of war and peace, small and weak countries usually want peace. They hope that peace can be a claimable right. But in the current international context, this hope is hard to be realized for the existence of tough obstacles: Big countries can easily tear this hope into pieces with their strength, and bring about justifiable reasoning of defending their actions for destroying peace. In fact, international organizations and mechanisms can hardly have substantial constraints on powers, because big powers would always ignore the decision of international organizations with their strength, and even exit the organizations. These factors make it difficult to transform the desire for peace into legal rights in an institutional and structural way.

 

 

Over years, the United Nations and other international organizations have made a great deal of efforts to promote regional stability and world peace. However, in the contemporary society we are living in, although no large-scale war is taking place, terrorist attacks, regional armed conflictsandother forms of violence and hostile activities still exist. The arsenals of many countries have not been reduced; the disarmament of nuclear weapons, chemical weapons and biological weapons is still faced with much resistance; and terrorist forces represented by the IS constitute a major threat topeace and stability in the world. The right to peace of individuals, people and countries has not really been protected with legislation, and the ideal for peace ofmankind is far from being realized. This requires further efforts of the international community. In particular, countries should transcend egoist considerations, change the conventional thinking of viewing themselves as ideal advocates and others as realistic competitors, advance cooperation, gradually improve the legal process of the international community, strengthen the international social contract, enhance rules and the binding power of the international law, and make peace a reliable premise and solid foundation for human well-being.

 

* HE Zhipeng(何志鹏), professor at School of Law andthe School of International and Public Affairs, Jilin University.

 

1. Resolution 2081 (XX), December 20, 1965.

 

2. A/CONF/32/41.

 

3. Resolution 2442 (XXIII), December 19, 1968.

 

4. A/RES/39/11, 12 November 1984.

 

5. Report of the Human Rights Council Advisory Committee on the right of peoples to peace, A/HRC/20/31,April 16, 2012.

 

6. Resolution 20/15, 5 July 2012.

 

7. Contained in A/HRC/WG.13/1/2.

 

8. Of course, this does not mean that the state can never be punished. But whether this punishment is based on the international law is very doubtful. This sort of situation includes embargo against North Korea and Russia. As for unreasonable or illegal punishments continued for a long, such as the US embargo against Cuba, they have touched the bottom line of most law practitioners.