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)