Internationalization and legalization of human rights norms are universally recognized as major development affecting human civilization after World War II. Even the most optimistic observers had not imagined that international human rights statutes and organizations would witness such rapid development in coverage and regional popularity. The boom of collective human rights is an important feature of international human rights development over the past seven decades. For example, the right to development emphasizes equality of opportunities for post-developmental  countries; natural wealth and resources both indicate the permanent sovereignty of each country over its natural wealth and resources, as well as the right to peace, the right to environment, and the right to the common heritage of mankind. Therefore, human rights are not only fundamental rights of human beings in the contemporary political society, but also rights advocated out of consideration for future generations, as well as collective rights with states, nations and multilateral groups as the subject.
 

Among them, the advocacy of “the right to peace” echoes the initiatives and efforts of the United Nations since its establishment, in universalization of human rights, elimination of all kinds of war, maintenance of global peace and settlement by peaceful means of controversies and disputes. In the 19th century, the European society, through inculcation of individualist social ontology, gradually bestowed upon individuals the right to political participation. However, the state machine managed to take the right to determine and distribute political participation (Meadvell 2001). Therefore, nation-states began to wield indisputable right of authorization. However, during World War II, massacres of civilians in invaded countries by the Nazi Germany and the Japanese militarists showed in many cases that atrocities against human rights were led by states. However, international laws were in no position to curb it, giving perpetrators the chance to justify mass murder under the pretext of domestic affairs or acts of war. After the war, internationalization of protection for the right to peace and human rights affairs was emphasized. For example, Antonio Cassese pointed out: “The (Nazi) Germany insisted that national sovereignty should not be subject to any international intervention. That is an obstacle to human rights protection.” ¹ The Charter of the United Nations adopted in 1945 and the Universal Declaration of Human Rights in 1948 have changed the political positioning of individuals in international politics. In other words, the state is no longer the only subject to grant individual rights. Member states of the United Nations unanimously acknowledged: “Individuals are not taken care of in his capacity as members of a group (minority or special groups), but protected in their capacity as human beings.” ²

 

However, from the perspective of international relations, development of international human rights over half a century can be regarded as “an unstable victory.” (Reiff, 1999: 36-41) From the perspective of international public law, enriched content of the international human rights law is based on national constitutions, international customary laws, treaty laws and international criminal laws. Moreover, the human rights regime is multilateral in form, consisting of international organizations, international treaties and declarations, NGOs, and even international public opinions (Boli and Thomas, 1999). However, scholars of international relations place greater emphasis on the gap between institutionalization and practical effectiveness of human rights. No matter which theory is used in elaboration, human rights norms cannot completely shape international relations into the discipline of the international community. Realists emphasize the fact that an international regime has a very limited influence on states. Constructivists acknowledge the capability of an international system in regulating and restricting the behavior of sovereign states.
 

However, after the end of the Cold War, Constructivism and Realism theories intersected; both considered sovereign states as positioned in a global system of material and social relations. ³ Just as realists have emphasized, states in this system would naturally be keen on expanding their authority. However, they carry out exchanges and interaction with other countries in an international system with a basic code of conduct and understanding. Moreover, sovereign states are eager to be recognized by other members of the international community so that their existence and role in the system can be justified. Therefore, the international system and other transnational actors will gradually “socialize” the act of states, and cause it to accept the regulation of international norms, through political, economic and social pressure, elaboration and advocacy of concepts, and promotion of acculturation of norms. ⁴ The reason for states to accept the above-mentioned influences and internalize those norms is to maintain national influence, consolidate international status, and, most importantly, get accepted and recognized by the international community. From this perspective, realists and constructivists both agree that international human rights norms have an impact on sovereign states to some degree; even though human rights issues are from time to time transformed by many countries into a tool for foreign policy objectives and interests, basically this consensus is not changed, just as MichaelIgnatieff has observed: “After the Cold War, human rights became the dominant moral diction in foreign affairs.” ⁵ Ignatieff is not alone. Thomas Risse and Stephen Ropp believed that “human rights has become one of the constituent elements of modern states; we then [again] define the connotations of ‘State’, thereby limiting the other element constituting the contemporary state, i.e., ‘national sovereignty.’” ⁶

 

II. Balancing Human Rights and Sovereignty: Adaptation between Multilateral Legitimacy and State Authority
 

However, human rights norms not only concern prohibition of violence, but also include responsibility incumbent upon a country, just as Robert Jackson puts: “The legal status of humanity in international law as mentioned in the international human rights law is established by sovereign states, and can also in principle be deprived by sovereign states.” ⁷ Human rights norms are “the basic rules that must be formulated for people to have dignity and pursue their respective objectives peacefully in the society that is complex, rapidly changing and highly interdependent.” ⁸ Thus, after its foundation, the United Nations internationalized and normalized human rights values to promote the formation of an international human rights regime. According to the definition of Jack Donnelly, “Regime is the product of political power, and its objective is to avoid improper regulation or treatment of states.” ⁹ Donnelly further extended Robert Keohane and Stephen Krasner’s view, believing that the rise of an international human rights regime originated from the ever increasing “moral demand” of the international community, while major countries are also willing to “provide” an international regime to curb national acts in violation of human dignity. ¹⁰ The purpose for constructing such a regime is to formalize international affairs related to human rights issues and regulate national behavior.

 

In addition to the UN-led global regime for human rights, regional human rights regimes have appeared under support of a number of regional international organizations. There are even international NGOs’ unstintingly promoting initiatives and legalization of specific human rights issues. Functionally, the regimes can be divided into initiative and practical types, with the former being dedicated to universalization and international legislation of human rights norms and the latter emphasizing effectiveness of the statute and the practical implementation of states. Donnelly once said: “Compared to the period after 1945, that before it had hardly any regime of international human rights. The most striking development is that in the last three decades most international human rights regimes can gradually increase their own strength.” ¹¹ Therefore, institutionalization of global and regional human rights norms has had substantial impacts on the legal systems and diplomatic practices of sovereign states. Human rights are no longer within the jurisdiction of states only; they have also become one of the issues involved in international relations. Many human rights concepts have become international norms, and internationally recognized rights have assumed the trend of internationalization and internalization. 
 

The end of the Cold War and the rise of global governance philosophy prompted various parties to speculate that human rights would become the basic constituent elements of national sovereignty. With regard to the development of public international laws, the optimistic attitude to strengthening international human rights norms seems to be justified. For example, Cherif Bassiouni, an international human rights jurist, believed: “The traditional sovereignty-based argument refusing to recognize protection of human rights by the international community through multilateral approaches now appears to be ineffective, because many treaties have become applicable, there are cases of recourse by states to international customary law, and general principles of international law are binding on [countries] (international law stems from conventions, customs, domestic laws and imperative laws).” ¹² Accordingly, there are a rich variety of proceedings in international laws to prosecute suspects in violation of human rights. Cassese also advocated: “The existing international regime for protection of human rights is initiated by the beneficiaries of those norms for maintenance of rights; compared with other international systems overseeing international law for compliance, the effectiveness of the existing regime is not inferior. There is no point of getting frustrated because international monitoring bodies are small in number.” ¹³ Moreover, legal rights can be established on the basis of customary international laws. No matter the state is a party to human rights treaties or not, it is required to faithfully perform its duty of maintaining international human rights. The approach of international customary laws can support the following statement: Because all member states of the United Nations are required to follow the general regulations on human rights obligations in Article 55 (c) and 56 of the UN Charter, human rights treaties established afterwards only need to further elaborate those obligations. ¹⁴

 

However, discord between human rights and sovereignty rose as a result. The controversy is often used to evaluate the role and definition of power in the proceedings of international customary laws, just as Michael Byers said: “The state shall exercise its powers involved in all affairs occurring within the territory, while the international community uses the customary rules to challenge exclusive state power. So the controversy is basically about exclusiveness.” ¹⁵ However, the disagreement and controversy mainly found between scholars of international law and those of international relations have a tendency to suppress interdisciplinary research. ¹⁶ After Hans Morgenthau described this disagreement in the mid 1940s, subsequently scholars of international relations grew skeptical about the effectiveness of international human rights laws. Morgenthau believed that the international legal order could be very weak in the context of anarchy, and that the international statutes had always had a tendency to fall into the hands of power. ¹⁷ Since international laws are essentially decentralizing, when conflicts rise between human rights and sovereignty in international relations, international laws become inefficient as a mechanism. This is especially for realists.
 

Although the foregoing arguments seem to belittle the influence of international norms on state behavior, the system of international laws is not just seen as a regulatory mechanism lacking coercive measures, but one shaping legal relations. ¹⁸ Therefore, when realists explore the effectiveness of power from the perspective of international laws, they often tend to ignore the fact that international norms also shape power relations. From the perspective of constructivism and public law scholars, “legal rules and relationships are both very important because they constitute the rules for the game of power politics. However, a greater contribution lies in stabilizing and legitimizing the power of specific actors.” ¹⁹ Andrew Hurrell directly challenged the principles of realism in his criticism, and further elaborated:
 

In analysis of power, new realists have formed a false evaluation of the importance of norms and laws, mistakenly regarding norms, rules, institutions and values as simply a reflection of physical force. Power is still the center of gravity for analyzing international relations. Admittedly, power is a social attribute, and is understandable by juxtaposition with other typical social concepts (such as prestige, authority, legality and legitimacy). This is indeed a serious contradiction, because realists have been downplaying the community-orientation of power so that they are unable to completely or convincingly explain the core argument that they hold supreme. ²⁰
 

From this perspective, in analysis of the international human rights norms, the role of international human rights regimes in shaping power relations among nations must be clarified. Therefore, the type of regime is very important in establishing power relations. Donnelly pointed out, pioneering human rights regime can advocate legalization of human rights, but their effectiveness in practice has been proven to be extremely difficult to test. An enforceable regime can only be valid when supported by national and regional organizations. Donnelly explained:
 

The development of a pioneering regime may be gradual, but can be fast (perhaps an enforceable regime is just the same). There seems to be a deep divide between the two. The commitment required by the former is relatively low-leveled, while the latter requires commitments from many major countries. Development of most human rights regimes is often restricted in this regard, and such restriction rules out further development. ²¹

 

In this manner, the postwar development of international human rights is always accompanied by contention and competition among sovereign states and international organizations in certain political behavior. In each stage, power, interests and political wills are involved. The Cold War is a testimony of how human rights can be manipulated intermittently or instrumentally by power states. Because might was subjective and enforceable, the order constructed according to the regime of international human rights came under heavy pressure. Those countries had the right to decide the process of consultation between international laws and international regimes, and used coercive forces to serve their own national interests. However, although human rights are susceptible to the influence of cyclical manipulation of power and interests, it does not mean that international human rights norms have lost their importance. International human rights laws have become a major source of legitimacy for countries in handling human rights affairs. Victims of atrocities and persecution are able to claim their rights and to fight against perpetrators according to international human rights laws. Human rights mechanisms have narrowed down the range for countries to legally use their coercive power by restricting the use of certain coercive forces. Hereby, might is also to some extent restricted by the “set norms” of international human rights regimes. ²² In the current international climate, countries often have to respect and honor those obligations, or at least perfunctorily perform their duties and raise justifiable grounds for objection according to the foregoing specification.
 

Therefore, the analysis of the development of international human rights from the perspective of international relations does not focus on the advent and termination of the human rights era as mentioned by Ignatieff, but on whether global or regional human rights norms can directly or indirectly shape the legitimacy of state acts, and through which means. In addition, evaluation of the degree to which sovereign states comply with international human rights norms and variables affecting their behavior are also very important. In other words, the focus of the problem is whether international human rights regimes can promote protection of human rights, and how they affect sovereign states. The discord between human rights and sovereignty  always affects the development of human rights norms, but it does not lead to the collapse of international human rights regimes.

 

III.  The Implementation of the Right to Peace and State Thinking
 

Sovereign states are considered actors in international relations and the international system is only the product of interaction between countries. Therefore, countries have always been main carriers and media for implementation of international human rights statutes. As a greater emphasis is placed on transnational issues, however, collective human rights issues, with acquired significance due to the promotion of international organizations and non-governmental organizations, gradually occupied an important position with great influence on international politics. Therefore, the role of states and other actors in implementation and protection of collective human rights has also become the focus of research and discussions of international human rights. In particular, with its special nature, its subject includes individuals, states and even the entire human race. Additionally, the right to peace is actually the foundation for the realization of the right to development.
 

The General Assembly of the United Nations adopted the Declaration on the Preparation of Societies for Life in Peace on December 14, 1978. The Declaration pointed out that every country and every individual, regardless of race, religion, language or sex, are born with the right to live in peace. It also proposed the obligations and measures that countries should assume and adopt in maintaining the right to peace. In 1984, the UN General Assembly adopted the Declaration on the Right of People to Peace, stressing that life without war is the prerequisite for promoting the development and progress of material well-being of all countries, and for realizing all the basic rights, as well as the foremost condition for human civilization and its survival.

 

On November 12, 1984, the General Assembly of the United Nations adopted Resolution 39/11, reaffirming that the primary purpose of the United Nations is to maintain international peace and security. The fundamental principles of international laws, as proposed in the Charter of the United Nations, demonstrate the determination and desire of all people to eradicate war, first and foremost nuclear holocaust, in the life of mind. They are convinced that life without war is the primary prerequisite for promotion of the material well-being, development and progress of countries, and for full realization of human rights and fundamental freedoms declared by the United Nations. They understand that establishing a lasting peace on earth in the nuclear age is the primary condition to maintain human civilization and humanity. They are fully aware that maintenance of peaceful life for the people is the supreme sacred duty of each country: 1. To solemnly proclaim that all people in the world have the sacred right to peace; 2. To solemnly declare that it is the fundamental obligation of each state to safeguard the people’s right to peace and promote the realization of this right; 3. To emphasize that, in order to ensure the peaceful exercise of the right to people, all states should formulate policies to eliminate the threat of wars, especially that of nuclear wars, renounce the use of force in international relations, and seek peaceful settlement of international disputes in accordance with the Charter of the United Nations; 4. To call upon all states and international organizations to take appropriate measures at the national and international levels to assist with realization of people’s right to peace as much as possible.

 

In fact, on the one hand, the right to peace is the right entitled to all human beings, and its maintenance and realization are the fundamental obligation of all countries. Therefore, the foreign policies of all states should be targeted at eliminating threat of wars (especially that of nuclear wars), renouncing the use of force in international relations, and settling international disputes peacefully according to the Charter of the United Nations. However, on the other hand, sovereign states might encounter incompatibility with their public authority in adopting appropriate measures to assist their citizens to exercise the right to peace. This is because sovereign states are considered the sole subject capable of exercising the right to peace, to the exclusion of citizens, NGOs and other potential subjects capable of having dialogues with them. In fact, discussion of the right to peace in a broader sense and the resultant peace movement have been going on. Leo Tolstoy, Mahatma Gandhi and Bertrand Russell are among the well-known peace thinkers and activists. Because opposition to wars and war regimes are the main connotation of contemporary peace movement, when a sovereign state exercises its legitimate rights and arguments reasonably and requires its citizens to join the army or perform military services, there rises a gap between individual rights and national sovereignty and subsequently a need of adaptation between the two. The intervention of the United States in the Vietnam War in the 1970s met with strong domestic opposition, and now the Abe administration of Japan has incurred waves of social opposition for harming the pacifist culture shaped after World War II in the name of lifting the ban on collective self-defense. Those incidents are especially cogent examples to show that the larger the scale of anti-war and peace movement, the larger the moral space and support for peace are advocated to refuse military services, and the greater discretion rulers have to exercise. From this perspective, the advocacy and practice of the right to peace require sovereign states to approach the conflicts that may arise between protection of individual rights to peace and national and social welfare from a broader horizon and with greater tolerance.
 

IV. Conclusion: The Right to Peace Highlights the Inclusiveness and Necessity of Compatibility between Human Rights and Sovereignty 
 

Universalization of human rights values and concepts is not only the achievement of mankind reflecting on the Second World War, but also the remarkable achievements of advancing human civilization. However, the protection and practice of human rights pose a challenge to the authority of the state. As universalization of international human rights statutes expands and deepens, it becomes increasingly more important to re-examine the legitimacy of sovereignty wielded by states and the justification for the multilateral regime of international norms, as well as the influence of the adaptation between the two on compliance of sovereign states with international human rights laws. This paper takes the right to peace as an example to analyze the impact on legitimacy conflicts between sovereign states and international multilateral authorities on the implementation of human rights statutes. In fact, the legitimacy of authority is the main motivation for implementing international human rights laws, and the practice of the right to peace and other international human rights projects depend on proper handling of the legitimacy issue by the multilateral human rights regime and sovereignty states. Even though the international human rights regime is substantially effective, it boasts the internal and external political authority and source of law required for successful construction of a protection mechanism for human rights, and interests are not the decisive factor affecting the willingness and degree to which states might comply with human rights norms; the legitimacy of state authorities is also a necessary condition. Therefore, the protection and practice of international human rights depend on the compatibility between legitimacy of the multilateral regime and tolerance of state authorities, neither on the pressure imposed on the former nor voluntary compliance by the latter.

 

Over the past seven decades, the interaction between the two sides across the Taiwan Strait has transformed from armed conflicts and military confrontation to today’s peaceful development, to the embrace of past lessons by both sides, termination of internal dissention, absorption of past experience to benefit the future, as well as practice of the right to peace. Faced with the new situation of cross-Strait relations, the major political parties on both sides of the Strait should acknowledge the overlap in sovereignty declaration. They should start from the 1992 Consensus to seek ways and paths to “Chinese statehood,” so as to ease cross-Strait disputes over political positioning and participation in foreign affairs in the current period of development of peace, and to think about a model for cross-Strait political links by “joining hands” in future relations. Most importantly, the two sides should never resort to non-peaceful means to settle any dispute, whether in history or in status quo. The two sides are intricately entangled, with mutual empathy, patience and confidence being the only way out. Peace across the Taiwan Strait should be taken as the supreme value and human rights should be developed to link the two sides. Only in this way, can the efforts seeking spiritual identity by the two sides pay off.

 

* ZHOU Zhijie(周志杰), professor of the Department of Political Science and the Graduate Institute of Political Economy, National Cheng Kung University, Taiwan; executive director of the Chinese Association for Human Rights and chairman of the Cross-strait Exchange Committee, Taiwan.
 

1. Antonio Cassese, Human Rights in a Changing World, Cambridge: Polity Press, 1990, at 21.
 

2. Antonio Cassese, Human Rights in a Changing World, Cambridge: Polity Press, 1990, at 289.
 

3. Martha Finnemore and Kathryn Skkink, “International Norm Dynamics and Political Change,” 52 International Organization (4),at 887-917; Thomas Risse, Stephen C. Ropp and Kathryn Skkink eds., The Power of Human Rights: International Norms and Domestic Change, Cambridge: Cambridge University Press, 1999.
 

4. Ibid.
 

5. Michael Ignatieff, “Is the Human Rights Era Ending?” New York Times, February 5, 2002.
 

6. Thomas Risse and Stephen C. Ropp, “Internatinal Human Rights Norms and Demestic Change:Conclusion,” in Thomas Risse, Stephen C. Ropp and Kathryn Sikkink eds., at 236.
 

7. Robert H. Jackson, “The Political Theory of International Society,” in Ken Booth and Steve Smith eds., International Relations Theory Today, University Park, PA: Pennsylvania State University Press, 1995, at 111.
 

8. Michael Freeman, “Human Right, Democracy and ‘Asian Values,’” 9 The Pacific Review , No. 3(1996), at 358.
 

9. ack Donnelly, Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 1989, at 210.
 

10. Ibid., at 210-211.
 

11. Jack Donnelly, Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 1989, at 153.
 

12. M. Cherif Bassiouni, “Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions,” 3 Duke Journal of Comparative and International Law,No.2, at 238.
 

13. Antonio Cassese, International Law in a Divided World, Oxford: Oxford University Press, 1986,at 102-103.
 

14. Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law, Cambridge: Cambridge University Press, 1999, at 43-44.
 

15. Ibid., at 45.
 

16. Stephen J. Toope, “Emerging Patterns of Governance and International Law,” in Michael Byers ed., The Role of Law in International Politics: Essays in International Relations and International Law, Oxford: Oxford University Press, 2000, at 91.
 

17. Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 5th ed., New York: Alfred A.Knopf, 1978, at 279-288; Andrew Hurrell, “International Law and the Changing Constitution of International Society,” in Michael Byers ed., supra note16, at 328.
 

18. Philip Allott, “The Concept of International Law,” Michael Byers ed., ibid., at 74.
 

19. Andrew Hurrell, “Conclusion: International Law and the Changing Constitution of International Society,” Michael Byers ed., ibid., at 330.
 

20. Ibid.
 

21. Jack Donnelly, University Human Rights in Theory and Practice, 2nd ed., Ithaca: Cornell University Press, 2002, at 7-8.
 

22. Mervyn Frost, Ethics in International Relations, Cambridge: Cambridge University Press, 1996, at 105.