International Human Rights Law: A Tool to Strengthen Peace and Security

 

 

Presentation

 

Good morning ladies an gentleman. Before I begin I want to thank the organizers for inviting me to this beautiful country to expose some ideas related to the Peace, Security and the Harmonic World. Since I saw the invitation I was worried about of how to focus my presentation, because this is a very complex theme and is getting more complex during this last years. Then I realize that the problem maybe is more complex, but the answer, at least the first steps to accomplish it, maybe not. During the next minutes I will try to present some ideas based on how the International Human Rights Law can contribute in order to promote Peace and maintain Security.

 

I will divide the presentation in two main areas. The one will focus on the pillars of the international organizations and how does these have to be interpreted in order to maintain the peace and security and then I will try to explain how these are linked with the promotion and protection of Human Rights. In that sense, I will not enter into philosophical debates connected to the use of force, the right of revolution or the necessity of the state.

 

 

International Organizations

 

As you know, at the beginning of the XX century, the International Law was predominately customary law. The States were making law through their continuous acts that they consider obligatory among them. Before the First World War there were, in general, only a few treaties, three of them, curiously, try to reduce the damage to the victims of an armed conflict, but was nothing said about peace and war. There is only the Final Act of the International Peace Conference that took place at The Hague on July 29, 1899, in which 27 states participated and affirm its compromise with the content of the Act.

 

The content of the Act include the Convention for the peaceful adjustment of international differences, the Convention regarding the laws and customs of war on land, the Convention for the adaptation to maritime warfare of the principles of the Geneva Convention of August 22, 1864, the Declaration to prohibit the launching of projectiles and explosives from balloons or by other similar new methods, the Declaration to prohibit the use of projectiles, the only object of which is the diffusion of asphyxiating or deleterious gases and the Declaration to prohibit the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope, of which the envelope does not entirely cover the core or is pierced with incisions. Also, as a part of the Conference, the countries adopted a resolution in which stated among other issues, “the limitation of armed forces by land and sea, and of war budgets”

 

As you can see, the international instruments adopted during this conference were focus on the prohibition on war methods that inflicted more damage than the necessary during an armed conflict and also to protect the victims during these times. However, it is important to mention that the main objective of the conference was the peace; therefore, the instruments adopted were promoting actions in favor of it, especially the Convention for the peaceful adjustment of international differences, in which the states established it’s firmly will to cooperate for a general peace, to make all the efforts to always have a peaceful adjustment of international differences and to strengthen the international justice. In this convention is stated as the primary objective, to do all the efforts to have a peaceful adjustment of international differences in order to avoid the use of force .

 

Years later, the President of the United States of America proposed a Second International Peace Conference that was held on June 15, 1907 at The Hague. During this conference, the following instruments were approved: Convention for the pacific settlement of international disputes, Convention respecting the limitation of the employment of force for the recovery of contract debts, Convention relative to the opening of hostilities, Convention respecting the laws and customs of war on land, Convention respecting the rights and duties of neutral powers and persons in case of war on land, Convention relative to the status of enemy merchant ships at the outbreak of hostilities, Convention relative to the conversion of merchant ships into warships, Convention relative to the laying of automatic submarine contact mines, Convention respecting bombardment by naval forces in time of war, Convention for the adaptation to naval war of the principles of the Geneva Convention, Convention relative to certain restrictions with regard to the exercise of the right of capture in naval war, Convention relative to the creation of an International Prize Court, Convention concerning the rights and duties of neutral Powers in naval war and Declaration prohibiting the discharge of projectiles and explosives from balloons.

 

Similar, as the first conference, the international instruments approved focus into the prohibition on war methods that inflicted more damage than the necessary during an armed conflict and also to protect the victims during these times. But as the first conference, the intention was to promote the peace and the pacific settlement of international disputes through the principle of compulsory arbitration.

 

Nonetheless, as you know, these conferences and the instruments approved could not prevent the World War I. At the end, the victorious countries decide to create an International Organization capable to fulfill the objectives established in the instruments approved during the first and the second international peace conference, the League of Nations.

 

The creation of the League of Nations is based on the Versailles Treaty, in which it was established the conditions for peace in 1919. The main objective of this organization was to maintain “peace and security [through] reduction of armament, peaceful adjustment of differences, limitation to appeal to war, collective independence in the independence of each member and sanctions against the states that use the force instead of a peaceful agreement”. Also, as a part of the agreement, this treaty included the creation of a special tribunal. The purpose of the tribunal would be, to prosecute and to trail the responsible of violations of the sanctity of treaties, in particular Wilhelm of Hohenzollern, who fled to Holland and was protected by this country. In addition to the Versailles Treaty, the nations promote the signature of the Treaty of Sèvres with Turkey, in which was included a provision in order to create another international tribunal to prosecute an to trail the responsible of crimes of war and crimes against humanity, but this treaty was never accepted by the Turkish government and instead the treaty that was signed –the Treaty of Lausanne– included a declaration of amnesty for all the acts committed between 1914 to 1922.  

 

The main organs of the League of Nations were the Assembly, the Council and the International Permanent Court of Justice. The functions of these organs were mainly to maintain peace and security, but as you may know, its efforts could not prevent the Second World War II and that was the end of the League of Nations.

 

The failure of the League of Nations –primarily because the countries do not honor their agreements -, instead of rejecting the idea of international organizations and the promotion of the international law, was just the opposite; therefore, the States continue promoting better organizations, and as a part of the promotion of the international law, the Allies create an International Tribunal in order to prosecute and to trail the responsible of war crimes, crimes against humanity and, most important of all, crimes against peace. The trials are known as the Nuremberg trails. It is important to mention that one of the legal bases to prosecute and to trail for crimes against the peace was the Kellogg-Briand Pact of 1928. 

 

The atrocities committed during the Second World War II and the “inefficiency” of the League of Nations was the background to create the United Nations. The preamble of the United Nations is clear in its main objectives that include among them:

 

-      to save succeeding generations from the scourge of war.

-      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.

-      to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.

-      to unite our strength to maintain international peace and security.

 

In addition, the purposes on the United Nations are:

 

-      to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

-      to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

-      to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

 

These purposes shall be enacting in accordance with the following principles:

 

-      All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

-      All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

-      All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

-      The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

 

If we want to summarize the main objectives of the United Nations, we could say that they are: to maintain international peace and security, to promote the friendly settlements of disputes, to cooperate to the equal development of the States in economic and social matters, and to promote human rights. In the second part of this article, I will try to prove that the principal objective of the United Nations is to maintain international peace and security and in order to fulfill this objective the other three main objectives of the United Nations are required, in particular the respect and promotion of Human Rights.

 

The United Nations create six main organs to accomplish these objectives: the General Assembly, the Secretary General, the Security Council, the Economic, Social and Cultural Council, the International Court of Justice and the Trusteeship and Administrative Council. All these organs have the responsibility to complete the objectives, but each one of them has an essential role to carry out one the objective. In example, the Security Council has the main objective to maintain peace and security, the International Court of Justice and the General Assembly have the main objective to promote the friendly settlement of disputes, the Economic and Social Council has to promote the cooperation between the States in order have and equal development of them in economic and social matters. As you can see, these organs had a near relation to one objective of the United Nations, but there is no main organ that has the Human Rights as its principal objective. There is a mention to human rights in the mandates of the General Assembly and the Economic and Social Council , but it was delegated from the beginning to the Human Rights Commission in 1946 (now Human Rights Council) as a subsidiary organ.

 

In order to have a full view of what are the mandates of the main organs in relation to maintain peace and security the following table is included:

 

General Assembly	- To consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both.   - To discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion.   - To call the attention of the Security Council to situations which are likely to endanger international peace and security.   - To recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.   - To receive and consider annual and special reports from the Security Council; these reports shall include an account of the measures that the Security Council has decided upon or taken to maintain international peace and security.
Security Council	- To formulate, with the assistance of the Military Staff Committee, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.   - To call upon the parties to settle their dispute by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.   - To investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.   - To determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken, to maintain or restore international peace and security.   - To make recommendations or decide upon measures to be taken to give effect to the judgments of the International Court of Justice, in case it deems necessary, in the case that one of the states fails to perform the obligations incumbent upon it under it. (only be the petition of the other party) .   - To encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council .
Trusteeship and Administrative Council	- To further international peace and security.
Secretary General	- To bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.

 

In addition, all Members of the United Nations have:

 

-      to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security .

-      to carry out the decisions of the Security Council for the maintenance of international peace and security, as the Security Council may determine .

-      to comply with the decision of the International Court of Justice in any case to which it is a party .

 

Also, some States has other responsibilities depending on particular obligations. In example, the States that has “the administration of territories whose peoples have not yet attained full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: c. to further international peace and security”  and to fulfill this obligation, “the administering authority [shall have the duty] to ensure that the trust territory shall play its part in the maintenance of international peace and security. To this end the administering authority may make use of volunteer forces, facilities, and assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the administering authority, as well as for local defense and the maintenance of law and order within the trust territory”.

 

Furthermore, in the case of regional agreements, the United Nations refers that its members "shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council”.

 

As an example of this regional agreements I refer to the Organization of American States because in its preamble says that “the stability, peace and development [has to be done] by a representative democracy”. In addition, it is established that good neighborliness can only be done “within the framework of democratic institutions, of a system of individual liberty and social justice based on respect for the essential rights of man”. Furthermore, it says “that juridical organization is a necessary condition for security and peace”.

 

In that sense, the purposes of the Organization of American States are “to achieve an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence”, and in order to accomplish this purposes, the organization has:

 

-      To strengthen the peace and security of the continent.

-      To prevent possible causes of difficulties and to ensure the pacific settlement of disputes that may arise among the Member States.

-      To provide for common action on the part of those States in the event of aggression.

-      To achieve an effective limitation of conventional weapons that will make it possible to devote the largest amount of resources to the economic and social development of the Member States.

 

Also, the Organization of American States has as its principles the following:

 

-      The American States condemn war of aggression:  victory does not give rights.

-      An act of aggression against one American State is an act of aggression against all the other American States.

-      Controversies of an international character arising between two or more American States shall be settled by peaceful procedures.

-      Social justice and social security are bases of lasting peace.

-      The education of peoples should be directed toward justice, freedom, and peace.

 

In addition, “the American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof”. In that sense, the American States, in case of international disputes shall be submitted to the peaceful procedures set forth in this Charter” that could be “direct negotiation, good offices, mediation, investigation and conciliation, judicial settlement, arbitration, and those which the parties to the dispute may especially agree upon at any time”

 

However, these provisions have been very difficult to enact, because the States are not willing to view reviewed in their actions in their intern or extern policies or does not want to be in an international diplomatic differences resulting from an international lawsuit to the International Court of Justice. Prove of that, is the provision in the United Nations Charter that established that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state”; this reflect a sovereignty clause. In addition, this could be prove by the low acceptance of the jurisdiction of the Court and the cases submitted to it –at the time that this paper was written 118 were presented to the Court-. It is important to mention that from 1947 to 1990 only 55 cases were introduce to the Court, and from 1991 to this year, 63  cases were presented to the Court, from which 14 are pending for deliberation.

 

As you may know, since the creation of the United Nations there has been at least 25 international and intern conflicts, in which the States did not fulfill its obligations derived from the International Law. As a recent example I could refer, Israel-Palestine, Israel-Lebanon, United States of America (and others)–Irak, Argentina-United Kingdom, among others (not including many internal conflicts). I did not refer the cases from Guatemala, El Salvador, Yugoslavia, Rwanda, Cambodia or Sierra Leona, because in the 90’s United Nations has been more proactive in the contribution to maintain peace on internal conflicts that could risk the international peace and security. This I will refer later in the paper.

 

As a part of the strategies, the United Nations has established is the Peace Building Commission which purpose is “to advise and propose integrated strategies for post-conflict recovery, focusing attention on reconstruction, institution-building and sustainable development, in countries emerging from conflict [through] broad capacities and experience in conflict prevention, mediation, peacekeeping, respect for human rights, the rule of law, humanitarian assistance, reconstruction and long-term development”. In my opinion, the United Nations has reduced the conflicts, but the Members of the United Nations are not fulfilling the purposes of the Charter.

 

International Human Rights Law

 

As you know, the International Human Rights Law was crystallizing in 1945 with the approval of the United Nations Charter. In the year after, the Economic and Social Council create the Commission on Human Rights –as a political subsidiary organ-. The activities of the Human Rights Commission were focus, during its firsts 25 years, to contribute in the elimination of the racial discrimination, and one of the reasons is that the racial discrimination 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 Commission on Human Rights uses extra-conventional procedures and conventional procedures to eliminate the racial discrimination, and also this work was part of the Sub commission for the protection of minorities (Sub commission of promotion and protection on Human Rights).

 

Also, in other international instruments is refer the relation of peace and security and Human Rights. In example, the Universal Declaration on Human Rights that says:

 

-      Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

-      Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

-      Whereas it is essential to promote the development of friendly relations between nations.

 

The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment considers as indispensable the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity establishes “that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security”.

 

In the International Human Rights Law, the elimination of discrimination, the prevention of genocide or apartheid, the actions to punish crimes against war and against humanity have been referring that these contributes to the peace. In example, the cases related to the Transitional Justice that has to comply in obtaining the truth, the justice and the reparations in order to have reconciliation and obtain peace (Peru, Guatemala, El Salvador, and South Africa).

 

In these order of ideas, the Human Rights movement has contribute a lot to the peace and security through the creation of ad hoc International Tribunals of Former Yugoslavia and Rwanda, because the resolutions for the creation of these tribunals by the Security Council of the United Nations refers that the impunity of the grave violations of Human Rights and Humanitarian Law could be a risk to the peace and security. We can interpret that the grave violations of Human Rights and Humanitarian Law could be also a risk to the peace and security because if we do not prevent them we could be in a scenario of impunity.

 

This has been the foundations of the Truth Commissions and the ad hoc International Tribunals, in particular the Rome Statute that “recognize that such grave crimes [crimes against peace, crimes against humanity and genocide] threaten the peace, security and well-being of the world”.

 

During the last two decades, the promotion and the protection of Human Rights –as recognized in the International Human Rights Law- has been a tool to promote the peace and security, but has been limited to sanction of crimes and to take actions against impunity. Nevertheless, there has been no action to prevent violations on Human Rights, and one of the main reasons is that the States are not willing to comply the International Law. In example, three of the main actions at the international level were the reforms to the United Nations, in particular to the Security Council and in Human Rights issue (the reform only get to the creation of the Human Rights Council as a subsidiary body) and the creation of the International Criminal Court. It is a shame that important countries and leader countries at the international level as United States of America and China has not supported these initiatives. 

 

The inactivity in process as the one I mention and the un-fulfillment of international obligations has been the first steps to the actual problems that put at risk the peace and security, as the Israel actions against Lebanon, the actions of Iran or North Korea, so it is not surprising these acts when the countries I mentioned before (USA and China) among others, does not want to loose the statue quo that could be acceptable in the times near after the Second World War II but that are unacceptable at this time (I am referring to the permanent members of the Security Council in the United Nations).

 

(China.org.cn)