The Right to a Peaceful World Order
Chapter 7
The Right to a Peaceful World Order
From the moment when Hitler’s invasion of Poland revealed the bankruptcy of all existing methods of preserving peace, it became evident … that we must begin almost immediately to plan the creation of a new system.’1
Sooner or later, all the people of the world will have to discover a way to live together in peace, and thereby transform this pending cosmic elegy into a creative psalm of brotherhood.’2
1. Introduction
This chapter interrogates the right to a peaceful world order (PWO) within the context of the general development of international human rights law since the adoption of the Universal Declaration of Human Rights (UDHR).3 The concept of a ‘world order’ is often used to indicate a rearrangement of world-view based on distinctive changes in political, economic and social attitudes and structures. Goldstein defines ‘world order’ as ‘rules that govern – albeit in a messy and ambiguous way – the most important relationships of the interstate system in general, and the world’s great powers in particular’.4 The world system does not always go in the same route; indeed, history is replete with several world orders. The political world orders have mostly alternated between empires/ hegemony and balance, leading to the current ‘multipolar and multicivilizational’ era.5
The break-up of the former Soviet Union and the fall of the Berlin Wall ushered in the ‘New World Order’ (NWO) – also known as the ‘post-Cold War world order’. The NWO marks a shift in the balance of power between states, with wider implications on the Westphalia international order. This NWO, which ‘replaces the relatively simple, broad disagreements of the superpowers with a seemingly endless array of dormant ethnic and national rivalries’,6 is anchored on three hemispheric pan-regions, longitudinal zones – led by the USA, the European Union (EU), and China – what Hessbruegge calls ‘a “medievalization” of international relations’.7 Securing and maintaining ‘global peace’ is one of the goals of the NWO.
‘Globalization’ – the buzzword for today’s intricate, interdependent, interwoven, intensely dangerous world8 – also represents a ‘new international economic order (NIEO)’. The campaign for a NIEO, which began in the early 1970s, led to the elaboration of the Declaration on the Establishment of a NIEO.9 The NIEO was a paradigm shift from concepts based on nation states. It replaced the preceding international economic order (IEO) where states were the ‘be all’ and ‘end all’ of power, trade, and wealth.10 The NIEO had three goals. First, it sought to eliminate developing countries’ economic dependence on developed countries. Second, it sought to accelerate the development of economies in developing countries based on the principle of self-reliance. Lastly, it sought to introduce appropriate institutional changes for the global management of world resources in the interest of mankind as a whole.
Meanwhile, the current global financial meltdown that begun in late 2007 – the worst since the Great Depression – is leading to a full-scale rethink of financial regulatory infrastructures and a reconsideration of economic theory. Some G-20 member states, especially France, Germany and Russia, are lobbying for a new ‘grand bargain’ to reorder the global balance of financial power, a euphemism for a ‘new world financial order’.
The title of this chapter assumes that a PWO is a human right. According to Beetham, an entitlement qualifies as a human right if it is fundamental and universal, is definable in justiciable form, is clear on who has the duty to uphold or implement it, and has a responsible agency with capacity to fulfil its obligation in relation to the right.11 Beetham’s characterization is defective to the extent that he fails to distinguish between normativity and justiciability. An entitlement remains a human right if it is normative, though not legally enforceable or justiciable. Normativity deals with questions of whether a particular standard or principle is binding on members of a group and is guiding and regulating acceptable behaviour in a society. Justiciability deals with questions of whether courts can, and at least sometimes will, provide a remedy for aggrieved individuals claiming a violation of certain standards.
If we assume Beetham’s criteria, however, several questions demand answers. What qualifies peace as a human right? Otherwise stated, what are the justifications for classifying a PWO as a human right? Who are the beneficiaries of this right and who are the duty-bearers? Which agencies have responsibilities and capacities to ensure compliance with obligations entailed therein or to sanction non-compliance? If a PWO is a human right, why has its realization been largely elusive? Is world peace realizable? How?
The first segment of this chapter interrogates ‘peace’ as a human right. The second segment traces the search for a PWO and spotlights reasons why that search has largely been elusive. The third segment examines the continuing threats to a PWO, embedding therein suggestions for its realization. In general, it urges the global community to unite around the common values that bind – human dignity, freedom, democracy, rule of law, and justice – in order to achieve a PWO. The last segment concludes with brief annotations.
2. Peace as a Human Right
The noun ‘peace’ lacks any lexical exactitude; it could denote ‘calm’, ‘quiet’, ‘stillness’, ‘tranquillity’, ‘silence’, ‘harmony’, or ‘serenity.’ As an ideal state, peace may be defined as the absence of fear, though not necessarily the absence of conflict.12 In its traditional political connotation, peace is defined as the absence of war; that is, pax as absentia belli. It connotes the absence of violence or other disturbances within a state. Others see peace as a collective good13 or as ‘a dynamic process of cooperation among all States and peoples’ founded on principles of ‘respect for freedom, independence, national sovereignty, equality, and human rights, as well as on a fair and equitable distribution of resources to meet the needs of peoples’.14 Lasting peace, declares the United Nations (UN) Educational, Scientific and Cultural Organization (UNESCO),
is a prerequisite for the exercise of all human rights and duties. It is not the peace of silence, of men and women who by choice or constraint remain silent. It is the peace of freedom – and therefore of just laws – of happiness, equality, and solidarity, in which all citizens count, live together and share.15
The concept of a universal right to peace appears to be supported by general international law. Judicial authorities and publicists also allude to it. Peace is the infrastructure on which the UN erects the legal, political, economic, social and other superstructures. As Joyce argues, ‘the moral and legal rule established by the UN is itself a “peace” system.’16 The UN represents an attempt to establish law and order within the modern state system. Its principal aim is ‘[t]o maintain international peace and security, and, to this end, to take effective collective measures for the prevention and removal of threats to the peace’ and to achieve ‘international co-operation in solving international problems of [a] … humanitarian character’.17 This function accords with the general purpose of international law, which seeks to ‘safeguard international peace, security and justice in relations between states’.18 Consequently, the ‘peoples’ of the UN undertake to ‘practice tolerance and live together in peace with one another as good neighbours’ and to unite their strength ‘to maintain international peace and security’.19
The UDHR, adopted by the UN General Assembly in 1948 ‘as a common standard of achievement for all peoples and all nations’,20 is the authoritative interpretation of the UN Charter.21 Its preamble speaks of the ‘disregard and contempt for human rights [that] have resulted in barbarous acts which have outraged the conscience of mankind’,22 a euphemism for the dreadful acts of World War II, including the Holocaust. Kennedy justly describes the UDHR as ‘one of the greatest political statement in world history’,23 ‘an outstanding document, with an outstanding range’,24 though he sincerely adds that ‘[t]he vast majority of colonial peoples in Africa, Asia, the Caribbean, and other regions had no chance to vote on this solemn declaration of their inherent rights’.25
The UDHR does not specifically guarantee the right to a PWO, but its preamble notes that ‘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.’26 The declaration references ‘peace’ in the context of the right to education; it provides that ‘Education … shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.’27 Article 28 implicitly guarantees the right to a PWO thus: ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’
Some judicial authorities, such as Filartiga v Pena-Irala,28 consider the UDHR as reflective of customary international law. In the United States Diplomatic and Consular Staff in Tehran case, the ICJ treated fundamental human rights principles, as defined by the UDHR, as legal norms capable of application against a sovereign state.29 The UN Security Council, General Assembly and other principal organs of the UN have severally relied on the UDHR norms either in elaborating particular resolutions or in mapping out their political actions. The Security Council has invoked the UDHR to dispatch military operations, impose economic sanctions, mandate arms inspections, and deploy human rights and election monitors, and take other actions.
The General Assembly, for its part, has adopted several resolutions bearing on global peace, all of which tend to provide the material evidence for the existence of the right to peace. In 1981, the Assembly declared that the opening day of its regular session in September ‘shall be officially dedicated and observed as the International Day of Peace (IDP) and shall be devoted to commemorating and strengthening the ideals of peace both within and among all nations and peoples’.30 In 1984, the Assembly adopted the Declaration on the Right of Peoples to Peace31 expressing, inter alia, ‘the will and the aspirations of all peoples to eradicate war from the life of mankind and, above all, to avert a world-wide nuclear catastrophe’.32 Such resolutions are material sources for the future formation of custom.
The right to peace is predicated on some underlying principles. The first principle is the a priori and indisputable universal desirability of peace; that is, the importance of humane values in both historic concepts of peace and calculations for the future. The second principle is the implied proposition that all rationally acceptable political purposes can be achieved without aggression. These principles give rise to the concept of the unity of humankind, a ‘common humanity’, in an increasingly complex and interdependent world.33 Principles of humanity ‘have obvious connections with general principles of law and with equity’.34 In the Corfu Channel case, the International Court of Justice (ICJ) acknowledged ‘elementary considerations of humanity, even more exacting in peace than in war’.35
Some publicists believe that there is emerging a ‘culture of peace’; that is, ‘an approach to life that seeks to transform the cultural roots of war and violence into a culture where dialogue, respect, and fairness govern social relations’.36 The Declaration on a Culture of Peace defines a ‘culture of peace’ as ‘a set of values, attitudes, traditions and modes of behaviour and ways of life’ based on certain factors and fostered by an enabling national and international environment conducive to peace.37 The factors that underpin this culture are respect for life, ending of violence, and promotion and practice of non-violence through education, dialogue and cooperation; full respect for the principles of sovereignty, territorial integrity and political independence of states, and non-intervention in matters which are essentially within the domestic jurisdiction of any state; full respect for and promotion of all human rights and fundamental freedoms; commitment to peaceful settlement of conflicts; and efforts to meet the developmental and environmental needs of present and future generations. Others are respect for and promotion of the right to development; respect for and promotion of equal rights and opportunities for women and men; respect for and promotion of the right of everyone to freedom of expression, opinion and information; and adherence to the principles of freedom, justice, democracy, tolerance,solidarity, cooperation, pluralism, cultural diversity, dialogue and understanding at all levels of society and among nations.38
If we assume the existence of the right to a PWO, who are its beneficiaries? Vasak, in his now largely discredited ‘generations’ metaphor,39 classifies the right to peace among the ‘third generation of solidarity rights’, alongside the rights to development, to environment, to the ownership of the common heritage of mankind, and to communication.40 If we maintain Vasak’s division, then the right to peace is a collective, albeit unenforceable, right within the category of human needs.41 Indeed, the Declaration on the Right to Peace ‘[s]olemnly proclaims that the peoples of our planet have a sacred right to peace’ (emphasis added).42 The African Charter on Human and Peoples’ Rights (ACHPR)43 equally vests the right to peace on ‘peoples’, guaranteeing to all peoples the right to national and international peace and security.44 The ACHPR further provides that the principles of solidarity and friendly relations implicitly affirmed by the UN Charter and reaffirmed by the Charter of the Organization of African Unity (OAU) ‘shall govern relations between states’.45 The recognition of these ‘collective rights’ is ‘a reply to the new challenges and ambitions which are placed before us’.46 Peace is probably the greatest human need today.
The right to a PWO educes a correlative obligation of conduct and result. The obligation of conduct entails non-interventionist behaviour from the state, such as refraining from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual.47 The obligation of result entails ‘a positive expectation on the part of the State to move its machinery towards the actual realisation of the rights’.48 These obligations – to preserve, promote and realize peace – fall on the international community as a whole, including states. Thus, the Declaration on the Right to Peace obligates states to preserve peace and promote its implementation, including the renunciation of the use of force in international relations.49 States must also direct their policies towards eliminating the threat of war, particularly nuclear war.50
3. The Perpetual Search for a ‘Perpetual Peace’
The two gruesome world wars of the twentieth century51 induced the international community to invent peace as a policy goal, perhaps the most important change in international relations in the second half of that century.52 The Great Powers adopted the UN Charter in the twilight of World War II to hammer out a post-1945 new world order, in the same way that the constellation of large victor powers led to the League of Nations to regulate the post-1919 world order. The UN Charter was adopted, inter alia, to save succeeding generations from another scourge that could threaten not just ‘untold sorrow’ but, with the invention of atomic and nuclear weapons, the ‘ultimate doom’. The charter replaces the anarchy of nations with the hegemony of a world government or, at least, a collective security system.53 It creates a strict rule against the use of force and an almost inviolable presumption favouring state sovereignty.
The UN Charter obligates its member states to ‘settle their international disputes by peaceful means’ and to ‘refrain in their international relations from threat or use of force’.54 It prohibits threats to peace, breaches of peace and acts of aggression, and vests the Security Council with authority to determine when these thresholds are crossed and the power to recommend appropriate measures to prevent or suppress them,55 including, where inevitable, ‘war for peace’.56 The principles of solidarity and friendly relations contained in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations of 197057 similarly prohibits threat or use of force by states in settling disputes. Principle 1 provides:
Every state has the duty to refrain in its 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. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.
The constitutive instruments of regional organizations also prohibit the use of force in inter-state relations. The Charter of the Organization of American States (OAS)58 provides: ‘The American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defence in accordance with existing treaties or in fulfillment thereof.’59 The Constitutive Act of the African Union (AU)60 equally prohibits the use or threat of force against any member state.61 These treaty obligations, which form the essence of contemporary world legal order, ‘are incompatible with any claims of a self-asserted right to violence in the interest of any specific State or group of persons’.62
The perpetual peace paradigm is based on the theory of multi-polarity, which posits that a PWO is possible when numerous systems of power rely on interdependence, interconnection, and cooperative interaction.63 However, the adversarial decade of the Cold War slowed down any modest advance towards a PWO.64 The Western bloc created the North Atlantic Treaty Organization (NATO) in 1949 while the Eastern bloc established the Warsaw Pact – officially called ‘Treaty of Friendship, Cooperation and Mutual Assistance’ – in 1955. This ‘war system’, which institutionalized violence, was opposed to the UN ‘peace system’. Thus, ‘[t]he strategic interests of the superpowers superseded the altruism of the [UN’s] original mandate. Development assistance became a tool of ideological propaganda, while the defence of territorial rights became a pretext for proxy wars and elaborate balancing games.’65 President Roosevelt’s idea of the Security Council as ‘a board of directors of the world’, responsible for ‘enforcing the peace against any potential miscreant’,66 fell flat.
Superpower politics and policies, coupled with realpolitik (foreign policy based on considerations of power as opposed to ideals), complicated the process of state making in many developing countries. World powers unashamedly engaged in backstabbing and infighting, with little or no concern for ex-colonies struggling with state or nation building. The USA was a primary obstacle in preventing the spread of democracy. Its goal to contain Soviet influence and suppress the proliferation of communism resulted in increased foreign aid and political alliances, including aid to rogue regimes such as that of Zaire’s (now the Democratic Republic of Congo (DRC)) Mobutu Sese Seku.67 Such overt acts or wilful indifference paved the way for dictatorships, coups, and wars. The Cold War bipolarity might have prevented World War III, but it certainly contributed to state failures and collapse in such countries such as Somalia, Liberia, the DRC, Haiti, Sri Lanka, and Lebanon.
The end of the Cold War saw the dismantling of alliances and the beginning of globalization. The post-Cold War world order not only ‘widened possibilities for strengthening a culture of peace’,68 but also provided the global community with a platform to construct a new paradigm for world peace. The period enabled the UN Security Council to broaden its interpretation of threats to international peace and security. The phrase has come to include matters that hitherto would have been deemed to be within the domestic domain of states, such as extreme human rights violations.69 The authorization of force against Iraq to liberate Kuwait in 1991 was a watershed in terms of Security Council activism under Chapter VII of the UN Charter,70 but other milestones include the authorization of humanitarian military interventions in Somalia71 and Rwanda72 and the use of force to restore democratic government in Haiti.73 The end of the Cold War also enabled the UN to bring an end to several protracted wars in Central America and parts of Africa.74
An Agenda for Peace,75 A More Secure World76 and similar strategic documents embody the global community’s hunger for security in an increasingly insecure world. A More Secure World – a Report of the High-Level Panel on Threats, Challenges and Change – addressed key security concerns, including collective security, the use of force, sustainable development, peacekeeping, and terrorism. Recognizing past failures at collective security, the report recommended changes that could be made within the UN system to enable it to address contemporary security challenges. It called on the global community to step in to assist in providing or developing capacity to provide protection where needed.
The development of advanced capitalist democracies at the ‘end of history’ was expected to lead to a perpetual peace model – similar to Emmanuel Kant’s vision – predicated on trade, economic interdependence and the avoidance of war.77 According to Kant,
the spirit of commerce sooner or later takes hold of every people, and it cannot exist side by side with war. And of all the powers (or means) at the disposal of the power of the state, financial power can probably be relied on most. Thus states find themselves compelled to promote the noble cause of peace, though not exactly from motives of morality [original emphasis].78
Thus, Kant ‘relied upon international commerce to create ties of mutual advantage that would help make republics pacific’.79
Why, despite the UN Charter, the UDHR, and the ‘end of history’, has the perpetual search for peace produced a perpetual war?80