Alfred de Zayas -- Abstract – Geneva 16 May 2011

AEDIDH Consultation 16. Mai 2011
Alfred de Zayas: THE ADDED VALUE OF THE HUMAN RIGHT TO PEACE
Professors Heinz and Villan Duran have already described the normative basis of the human right to peace and the progress made toward adoption of a relevant declaration.
Whereas it would be difficult to oppose peace as a human right, many believe that there is no need for the codification of such a right, and are sceptical about its justiciability.
As I expressed in the UN workshop in December 2009, I do believe that the codification of the human right to peace makes sense, and that there is an added value to be harvested.
First of all, I believe that it is useful to define the aspiration of civil society, to take coordinates, to give a name to it. Nomen est omen. Once we have a Declaration, we can talk about it and move forward.
Secondly, I believe that the right to peace is actually an immanent right and a component of many human rights that already constitute hard law.
Thirdly, I see the human right to peace as an enabling right that allows us to fully enjoy civil, political, economic, social and cultural rights.
Fourthly, I would call the human right to peace an ultimate or “end right”, in that the state of peace is the result of the promotion and protection of human rights.  Indeed, a society where human rights are upheld is a society that is free of the kind of structural violence that leads to armed conflict.
Now, as it has been said many times, peace is not the mere absence of war.  Peace in a holistic sense, peace in its individual and collective dimension, entails a state of internal and external harmony. 
Among the questions to be examined by this consultation are whether abstract concepts such as peace, justice or equality should be codified.
The fact is that civil society wants it.  The fact is that the Human Rights Council has entrusted the drafting to the Advisory Committee and that the Advisory Committee has progressed significantly in preparing such a codification.
Suffice it to say that the right to equality has been codified in Article 26 of the Covenant on Civil and Political Rights, that this right is invoked by individuals under the Optional Protocol procedure, and that there is ample case-law of the Human Rights Committee that has led to changes in legislation by several States parties to the ICCPR. The right to equality as an autonomous right is now European Law b y virtue of Protocol 12 to the ECHR.
Suffice it to say that the right to justice, at least the right to justice rendered by a competent and independent tribunal has been codified in article 14 of the ICCPR and that the Human Rights Committee continues to produce very concrete jurisprudence on the many aspects of the right to justice.
Now, as far as the right to peace, which appears to be a more elusive right, the Human Rights Committee has dealt with aspects of the right to peace associated with the right to life, article 6 of the Covenant. And this is not merely the right not to be subjected to extra-judicial execution, or the aspiration that capital punishment shall one day be universally abolished – the right to life entails the right to food, to health, and to security of person. It is a very broad right and the Committee has issued not only relevant case-law, but also two important general comments, also focusing on the issues of disappearance, disarmament, weapons of mass destruction, including nuclear weapons.
What, then, is the sense of this consultation?  I think that everyone here understands that the process is in itself valuable, notwithstanding the ultimate result.  The process allows us to sharpen our minds and to focus more clearly on the components of the right to peace and on the possibilities of promotion and enforcement.
As has already been noted, the right to peace cannot be limited to issues of security, which are properly the domain of the Security Council.  The right to peace goes well beyond considerations of security, sovereignty, disarmament and R2P.
The added value of the right to peace can be the adoption of a new paradigm.  I propose that we abandon the artificial concepts of first, second and third generation rights, which entail value judgments that are not universal, and that we test a new functional paradigm, whereby we look at human rights from the perspective of its functions in a system deriving from the concept of human dignity.  Thus, I would propose a paradigm of  

• Enabling rights, such as the right to peace, but also the right to food and the right to one’s homeland
• Immanent rights, such as the right to equality, since the claim to equal treatment and equal enjoyment of rights is inherent in every civil, political, economic, social and cultural right
• And then I would postulate end rights, such as the right to peace, but also the right to identity, to be that which we are, without fear of intimidation or interference by governments or by non-State actors, end rights such as the full enjoyment of human dignity.

I propose that we abandon the obsolete perspective that separates civil and political from economic, social and cultural rights.  This is not only a semantic exercise.  It requires a functional evolution in our philosophy of human rights.
On 6 January 1941 Franklin Roosevelt proclaimed the Four Freedoms – namely freedom of speech and worship, freedom from want and from fear
It is clear that he deliberately addressed two fundamental civil rights – the right to freedom of speech and religion   -- and two enabling, and simultaneously, end rights – the freedom from want, which entails conditions that are necessary for the human right to peace, and the freedom from fear, which entails conditions that liberate men and women from the threat or use of force, and by extension, from structural violence. It entails the human security paradigm. 
If men and women fully enjoy freedom from fear, this means that they already enjoy the human right to peace – and vice versa.
What do we need in order to achieve the human right to peace?
Obviously the adoption of a declaration will not ensure peace, as indeed the adoption of the UN Charter and, in particular, article 2, paragraph 4, has not guaranteed world peace.
But the process in itself is necessary, because it sensitizes individuals and governments on the multiple facets of the right to peace, and constitutes a form of education that benefits all participants.  It this work-in-progress, fine-tuning can be performed as the process of codification advances, and as monitoring possibilities become apparent.
The International Observatory created pursuant to the Declaración de Santiago de Compostela is a good example how civil society can be fully integrated in this process. 
The Spanish Society for International Human Rights law that spearheaded the Declaracion de Santiago has also prepared a comparative analysis of the 1984 General Assembly Declaration on the Right of Peoples to Peace and the Advisory Committee’s progress report.
This analysis summarizes the reasons to adopt a new normative Declaration on the human right to peace within the United Nations, as requested by civil society. Let me briefly comment on them:

• First, “The Declaration would help to achieve a coordinated response on a world-wide scale to those threats to human rights arising from the global interdependence of all individuals, peoples and nations;”
•  

I would go beyond that – I would say that it would give all UN agencies the responsibility to mainstream the human right to peace into their work, thus promoting the Purposes and Principles of the United Nations laid down in articles 1 and 2 of the Charter

• Second, “It would strengthen international cooperation, union of interests and joint action in order to preserve not only the fabric and very survival of international society, but also to achieve its collective goals;”
•  

I would suggest that the Declaration would lend weight to the common commitment to save succeeding generations from the scourge of war by ensuring the conditions of universal peace

• Third, “It would provide a solid basis to the culture of peace;”

This is also a goal of another civil society initiative, Project 2048 of Berkeley University, pursuant to which we endeavour to do a restatement of the law of human rights which would be built on the new paradigms outlined above

• Fourth, It would also give fresh impetus to the struggle against violence and attitudes based on force, imposition and gender discrimination;

Some may comment that the human right to peace is only a duplication of what already exists in the core human rights treaties.  I would comment: there can never be enough emphasis on human rights, and a little duplication certainly does not hurt. On the contrary, it keeps us on track.
 

• Fifth, “It would match with an ethical notion designed to proclaim the universal principles developed under international human rights law”

The aspiration of all human beings to live in peace is also a matter of ethics. And a Declaration that places peace on par with other ethical principles is pedagogically significant.
 

• Sixth, “It should recognize that the holistic concept of peace goes beyond the strict absence of armed conflicts. Peace is also positive, since it is linked to the eradication of structural violence as a result of the economic and social inequalities in the world, and to the peoples right to economic and social development. Peace also requires the elimination of cultural violence (gender and family violence, bullying, mobbing, etc.) and the effective respect for all human rights without discrimination”

Here again, it is crucial to realize that peace is not a band-aid, it is not just a cease fire, it is not just stopping armed conflict – it is creating sustainable structures that will ensure peace as proposed by Immanuel Kant in his essay “Perpetual Peace” (“zur ewigen Frieden”):
“Da es nun mit der unter den Völkern der Erde einmal durchgängig überhand genommenen Gemeinschaft so weit gekommen ist, dass die Rechtsverletzung an einem Platz der Erde an allen gefühlt wird: so ist die Idee eines Weltbürgerrechts keine phantastische und überspannte Vorstellungsart des Rechts, sondern eine notwendige Ergänzung des ungeschriebenen Kodex sowohl des Staats- als Völkerrechts zum öffentlichen Menschenrechte überhaut, und so zum ewigen Frieden...“
This is also the conviction of Juez Baltasar Garzon, who was just awarded the Kant Weltbürgerpreis in Freiburg i.Br., who has also coined the notion of the “víctima universal”, borrowing from Montesquieu’s Esprit des Lois and the idea that the violation of the right of one person constitutes a threat to all of us.  
 

• Seventh, It should help to understand that peace is both the precondition and the final purpose of international human rights law, since peace cannot be enjoyed effectively and in a sustainable manner without the realization of all human rights for all;

No one can doubt that social justice is conducive to internal and external harmony. This is the mandate assumed by the United Nations in its Summit Declaration of 2000 and in the commitment to achieve the Millennium Development Goals.  This is also the noble task of the International Labour Office that since 1919 works for justice in the domain of labour.

• Eighth, It would consolidate the right to peace in its double dimension, namely individual and collective;

The Human Rights Committee and its Optional Protocol are oriented toward individual rights, but everyone recognizes that individuals make a collectivity and that a collectivity must also vindicate  the rights of all of its members. When the collective right of peoples to peace has been achieved, each individual can best exercise his or her rights, not against others, but in harmony with the society in which he/she lives.

• Ninth, It would strengthen the right to human security and to live in a safe and healthy environment, as well as the right to development and to a sustainable environment;

These rights to human security, to development and to the environment can all be achieved, but in order to achieve them the military industrial complex must give way.  It is obscene that billions of human beings live in misery whereas a huge percentage of the budget of States is devoted to the arms industry, to the production, stockpiling and using weapons.  Here the priorities must be changed.

• Tenth, It would include the right to disobedience and to conscientious objection, as well as the right to resist and oppose oppression;

The Human Rights Committee has recognized the right to conscientious objection in its case-law under the Optional Protocol. But many States still do not recognize the right to conscientious objection, and other States refuse to grant asylum to conscientious objectors.  This remains a problem.

• Eleventh, It shall enforce the recognition of women contribution in the field of peace-building and stress the importance of their participation at all levels of decision-making;

No doubt women have made enormous contributions to the right to peace, Bertha von Suttner, laureate of the Nobel Peace Prize, Eleanor Roosevelt and so many others.  A holistic declaration that highlights this dimension is to be welcomed.

• Twelfth, It shall strengthen dialogue and peaceful coexistence among cultures, civilizations and religions or belief, as a means to combat racism, racial discrimination, xenophobia and related intolerance;

Because the Declaration addresses the sources of discord among peoples and nations, it does more than just ritually condemning war – it is a plan of action based on continued dialogue.

• Thirteenth, It shall stress the right to education on and for peace and all other human rights, as well as the construction of democratic, egalitarian and multicultural societies;

UNESCO has repeatedly recognized the need to promote education on and for peace. As Lieutenant Cable sings in the Rodgers and Hammerstein musical “South Pacific” – you have to be carefully taught:

“You've got to be taught
To hate and fear,
You've got to be taught
From year to year,
It's got to be drummed
In your dear little ear
You've got to be carefully taught.

You've got to be taught to be afraid
Of people whose eyes are oddly made,
And people whose skin is a diff'rent shade,
You've got to be carefully taught.

You've got to be taught before it's too late,
Before you are six or seven or eight,
To hate all the people your relatives hate,
You've got to be carefully taught!”

The Declaration of Stantiago aims at teaching all people to appreciate peace, to perceive our neighbour not as a potential enemy, but rather as a potential collaborator and friend. Discrimination is not in-born. It derives in part from stereotypes, caricatures, and bad education.  Moreover, we can recall UNESCO’s constitution and the commitment in its Preamble to build the defences of peace in the minds of men.

• Fourteenth, It shall recognize the close relationship between peace and the human rights to life, to physical and mental integrity, to freedom and security of the person;

Of course, this is being done by the Human Rights Council already, by the Special Procedures, by the Human Rights Committee, but it is useful to take stock of this relationship

• Fifteenth, It shall reinforce the right to refugee status and to emigrate;

This reflects the situation in the year 2011 and anticipates the population movements that no doubt will occur.  Admittedly, it goes beyond the 1951 Geneva Convention on the Status of Refugees, but it is very much in keeping with the Convention on the Rights of all Migrant Workers and Members of their Families

• Sixteenth, It shall restate the need to protect victims from uncontrolled weapons of mass destruction, as well as from genocide, crimes against humanity, war crimes and sexual violence;

This concern was well formulated in the 1996 Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case.  I think this issue needs to be revisited.
 

• Seventeenth, It shall confirm the victims’ right to redress from human rights violations, including the rights to truth, justice and reparation;

Article 2 of the Covenant on Civil and Political Rights provides the right to a remedy, but not all states have grasped that it is not sufficient to adopt norms. It is also necessary to put enforcement mechanisms in place and to ensure that victims are rehabilitated.

• Eighteenth, It shall include the right to a general and complete disarmament under international supervision;

Somehow the impasse on disarmament must be broken. The enforcement of Article 6 of the Non-Proliferation treaty must be seen as a matter of urgency, as Michael Gorbachev said at the Geneva Lectures two years ago.

• Nineteenth, It shall restate the freedom of thought, opinion, expression, conscience and religion;

More than that, it shall make it clear that the right to freedom of expression is of little value, if one has no opinion to express.  What is crucial is not the formality of freedom of expression but the reality of freedom of opinion, and this requires access to information, as provided for in article 19 of the Covenant on Civil and Political Rights.

• Twentieth, It shall emphasize the rights of people belonging to groups in situation of vulnerability, in particular, women and children.

This is one of the principal aspects of the Declaracion de Santiago – the preventive aspect. The need to anticipate the problems of vulnerable groups and the imperative to provide protection in a timely fashion.

 Twenty-First, It would assist States and International Organizations to focus on the development of the three pillars on which the UN Charter is based, namely: the system of collective security which prohibits the threat or use of force, and promote the peaceful settlement of disputes in accordance with international law; the economic and social development of peoples; and respect of human rights and fundamental freedoms for all without discrimination. Under these three pillars the human right to peace will be built.

In other words, the right to peace is not extraneous to the United Nations, nor is it superfluous. It is a logical emanation from the UN Charter.

I would like to conclude with a consideration for the Human Rights Council.  Admittedly, the Advisory Committee has its mandate and will continue the elaboration of a declaration on the right of peoples to peace. But I think that the Human Rights Council should consider expanding the mandate so that the human right to peace would be seen in its individual and collective dimensions, not only as a right of peoples, but also as a right of individuals.  Thus the declaration should be called quite simply, the Human Right to Peace, or even simpler the Right to Peace.