The following article was published in the May 2022 special issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 75-76 anniversary of the United Nations Charter.
Jun Sasamoto
The UN Charter and the guarantee of human rights
The UN Charter was developed to maintain international peace to prevent the horrors of war from ever being repeated. However, while there were no major wars during the Cold War, the Vietnam War, wars in Afghanistan and Iraq, and inter-state conflicts in Libya, Syria, Yemen, and Palestine followed. In these conflicts, the prohibition against the use of force was violated in a way that cannot be disguised as the exercise of the right of self-defense under various names.
The UN Charter is also intended to guarantee human rights; however, at the time of its establishment, the Allied Powers were focused on the structuring of the postwar world order and did not specify what was meant by human rights. Article 1(3) is very loosely worded: it calls for “promoting and encouraging respect for human rights and for fundamental freedoms” and does not include the phrase “guarantee of human rights”.
The Universal Declaration of Human Rights, which René Cassin, the first president of the IADL, was involved in drafting, included many basic human rights in its list; this document was later developed into the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. However, no right to peace or to restrict the use of force entered the list of human rights. In the conventional view of state sovereignty and national security, this amounted to an implicit premise that the authority over peace and security was monopolized by the state, and individuals had no direct involvement.
However, in the post-Cold War era, particularly before the start of the Iraq War, calls came from many people from around the world to halt the use of force, and calls for peace grew louder. International norms to limit the use of force are codified in international humanitarian law, but there are no direct penalties for violating them. Israel’s attack on Palestine in 2021 will not have international consequences. We can demand that the UN and national governments strictly adhere to the UN Charter’s prohibition of the use of force and the strict application of the right of self-defense while also creating international legal norms that would impose constraints on the use of force.
The right to peace is called for by NGOs as a means of constraining the use of human rights, and a Declaration of the Rights was adopted by the UN General Assembly in 2016. The unique feature here is that, unlike other international laws, which impose obligations on other states, such as arms control treaties, with restrictions based on human rights, governments impose obligations on individuals. For example, the exercise of the right of self-defense violates the right of people who are the subject of the right to live in peace, such that the exercise of the right of self-defense cannot unconditionally be justified. Such restrictions can extend to the scope, method, and degree of self-defense. In addition, if the right to peace is established as an international human right, responsibility for human rights violations will be investigated by the UN Human Rights Council and the Human Rights Covenant Committee. In addition, if the right to peace is incorporated into national constitutions and laws, it will be possible to invoke the right to peace in domestic court cases.
In addition, as the restrictions imposed by human rights norms are judgments based on the violation of individual’s rights, they are more objective than judgments regarding whether the right of self-defense should be exercised, which includes judgments of political policy. For example, judgments regarding the use of force based on the right of self-defense involve policy judgments on whether the attack poses a threat to a country and the necessity to counterattack, as well as policy judgments related to diplomatic relations between nations. By contrast, for example, with the right to peace as a human right, one example of which is the right to live in peace, is a criterion focusing on relatively factual question of whether the minimal condition to live in peace has been violated, making it easier to objectively judge whether the right has been violated.
The humanitarian approach taken for the establishment of the Treaty on the Prohibition of Nuclear Weapons and the Anti-Personnel Mine Ban Treaty also focuses on the inhumane consequences of the use of weapons, a perspective that it has in common with the approach to restrictions on human rights.
In the establishment of the Treaty on the Prohibition of Nuclear Weapons adopted by the United Nations in July 2017, the humanitarian approach, which emphasizes the catastrophic damage to humanity and environmental destruction caused by nuclear weapons, is increasingly taking center stage. The humanitarian approach proceeds from a different dimension than decisions that require policy judgment, such as nuclear deterrence and the security benefits of possessing nuclear weapons. Even if nuclear weapon states took the position that nuclear deterrence is necessary for national security, they would need to acknowledge the inhumane consequences of the nuclear attacks. In fact, this is how the debate that led to the nuclear weapons convention developed. International conferences concentrating the inhumanity of nuclear weapons were held in 2013 and 2014, and NGOs such as the International Campaign to Abolish Nuclear Weapons (ICAN), which received the Nobel Peace Prize, developed international public opinion regarding the inhumanity of nuclear weapons. This humanitarian approach was a major factor that led to the adoption of the Treaty on the Prohibition of Nuclear Weapons.
In the deliberation regarding the Anti-Personnel Mine Ban Treaty, which was adopted in 1997, the debate was shifted from a political one on the effectiveness of anti-personnel mines weapons for national security to one that emphasized their inhumanity of landmines, such as the fact that many victims have lost legs by these weapons. The International Campaign to Ban Landmines (ICBL), a non-governmental organization that played an important role in the establishment of the treaty, positioned the question of anti-personnel landmines as a humanitarian issue, not a disarmament issue, while encouraging governments to conclude the treaty [Mekata 2003: 85].
Beginning in the 1970s, the UN Commission on Human Rights took up the right to peace, and the UN General Assembly adopted resolutions on the Declaration of the right in 1978 (A/RES/33/73) and 1984 (A/RES/39/11); since 2008, the Human Rights Council has worked to codify the UN Declaration of the Right to Peace. During the deliberations relating to this goal, Western countries, Japan, and the Republic of Korea opposed the adoption of the declaration, but ultimately it was adopted in December 2016 by a two-thirds majority vote of UN member states, and the phrase “the right to enjoy peace” appeared in Article 1 (A/RES/71/189).
Disputed Points on the UN Human Rights Council
An observation of the contested points in the UN Human Rights Council deliberations shows the goal of the major powers to retain a free hand in the use of force. The following disputed points are from the Intergovernmental Working Group within the UN Human Rights Council (2013-2015) on the draft Declaration of the Right to Peace drafted by the Advisory Committee (A/HRC/20/31). The countries in favor included most Asian, African, and Latin American countries. Both Russia and China, permanent members of the Security Council, were in favor.
- Exercise of a state’s right to self-defense
At the first session of the Intergovernmental Working Group (February 2013), the US government and others criticized the draft of the Advisory Committee, indicating that, in their view, “Article 1 of the Advisory Committee Draft (which declares the right to peace and obliges states to renounce the use of force, without reference to Article 51) does not accept that there are circumstances when force, as recognized by Article 51 of the UN Charter and reflected in the inherent right of self-defense, may be lawfully used.” Here, it should be noted that Article 51 of the UN Charter allows states the individual and collective exercise of the right of self-defense in the event of an armed attack against a member state, until such time as the Security Council takes necessary responsive measures. This provision implies that each country’s exercise of the right of self-defense is recognized as legitimate under the UN Charter.
However, the opposing countries indicate that if the right to peace is recognized, the right of self-defense may be restricted. For example, its exercise might be restricted because, depending on the mode of its exercise, it would violate the right to live in peace.
Thus, the characteristics of the right to peace relate to the discussions regarding whether there should be restrictions on the exercise of the right to self-defense. Until this point, states did not require further legal justifications once they were legitimacy by the UN Charter. However, due to the establishment of the right to peace as a human right, states are required to ensure that the use of force would not violate not only the UN Charter, but also the general human right to peace. The UN Charter, which directly governs intergovernmental actions, and the right to peace relate to different levels of judgment.
Shigeki Sakamoto, a member of the Advisory Committee to the Human Rights Council, responded by saying, “If we assume that individuals and peoples have the right to peace, international law will be faced with the fundamental issue of whether the exercise of the right of self-defense granted to states and the imposition of coercive measures under Chapter VII of the Charter violate the right to peace of individuals and peoples.” He thus indicates the possibility of a situation in which a state’s exercise of the right of self-defense violates the right to peace [Sakamoto 2014: 88]. The Spanish Association of International Human Rights Law, a non-governmental organization that is engaged in the international campaign for the right to peace, recognizes that the right to peace is steps into the field of security of sovereign states [Durán 2013: 34].
For the US, the UK, and other countries that have invoked the right of self-defense to refer to acts that do not fall within the scope of this concept, the decision whether to violate the UN Charter is left to the discretion of the permanent members of the Security Council, who have strong veto power. However, these entities are now wary of the possibility that the Human Rights Council will be able to determine on violations of the right to peace.
- Maintenance of armed forces by the state
The right to conscientious objection to military service is guaranteed by the United Nations Human Rights Committee, derived from the freedom of thought, conscience, and religion in Article 18 of the Covenant on Civil Liberties.
However, during the deliberations of the first session of the Working Group on the right to conscientious objection (Article 5) (February 2013), almost all governments, including those in favor of the right to peace, opposed the article on the grounds that the right to conscientious objection undermined the foundations of the military.
That is, if the right of conscientious objection were recognized, countries would not be able to maintain their armed forces, limiting the nation’s right of self-defense. This means, in reverse, that if the right to peace is recognized, the state’s interest in defending itself by maintaining force of arms could be restricted.
The only groups who did not oppose the inclusion of the right to conscientious objection to military service as a component of the right to peace were the NGOs present at the conference and the government of Costa Rica, whose constitution forbids the maintenance of armed forces. This point of contention thus was not generally a conflict between governments but a conflict between governments and NGOs. This point of dispute showed the priority of national interests with regard to the human rights in the UN, where state representatives gather.
- Should this issue be left to intergovernmental negotiations or the Conference on Disarmament?
At the first session of the Working Group in February 2013, the US government made the following statement on disarmament in general during deliberations on the right to a Disarmament under Article 3 of the draft of the Advisory Committee. “The Human Rights Council is not an appropriate forum for the discussion of disarmament. There are at least six UN or UN-affiliated agencies and offices that deal with disarmament issues. There is the Conference on Disarmament in Geneva, the IAEA in Vienna, the First Committee of the General Assembly in New York, the UN Disarmament Committee, the UN Office for Disarmament Affairs, and of course the Security Council.” The representative of the US also made a statement on the arms trade, suggesting that “The Human Rights Council must be allowed to proceed without being confused by discussions on the creation of new human rights that are ill-defined at will.”
With regard to nuclear weapons, as of December 2016, when the UN Declaration on the Right to Peace was adopted, as part of the international system, the nuclear non-proliferation regime and nuclear reduction negotiations took place under the NPT Treaty and US-Russia bilateral negotiations. In reality, however, nuclear non-proliferation initiatives were not always been observed due to the possession of nuclear weapons by non-signatory states and the withdrawal of the DPRK. The reduction of nuclear weapons in nuclear weapon states is still incomplete, as there are still about 15,000 nuclear warheads in the world. One reason for this is the weak binding power of the nuclear weapon states against non-compliance with respect to their disarmament obligations on NPT, the nuclear non-proliferation regime that legitimizes the possession of nuclear weapons in part, and the limitations of negotiations among the major powers that seek to maintain their military hegemony. The Geneva Conference on Disarmament, can also only make decisions through consensus, a mechanism that allows disarmament only within the limits that major powers allow.
Under these circumstances, if the right to disarmament is to be recognized as a component of the right to peace, this would enable to development of a new perspective. In particular, if the right of individuals to demand the abolition of nuclear weapons from their governments is recognized, as in Article 3 of the draft of the Advisory Committee on Disarmament, states’ obligations will be judged in a human-centered way that differs from negotiations based on the balance of power and governments’ deterrence. In other words, even if a government does not ratify the convention, the right to disarmament could bring about restrictions on weapons of mass destruction and other weapons from the perspective of human rights abuses.
In the 1980s, the Japanese political scientist Yoshikazu Sakamoto noted that the fact that nuclear disarmament negotiations that had been in progress for more than 30 years following the end of World War II had not produced any relevant results was due, above all, to the fact that the parties to the negotiations had a vested interest in the development, production, and possession of nuclear weapons systems. It is just as true that nuclear weapons have not been reduced by governments’ actions. This is why “nuclear disarmament is a right of citizens” [Sakamoto 1981: 26-28].
The question of whether to delegate the authority for the use of military force and armaments to governments is related to the question of whether peace is a goal or a right. The US government, also attending the first session of the Working Group (February 2013), stated that peace is not a human right, but a goal that can be achieved by implementing existing human rights. If we make peace not only a goal or a target of policy, but also a right, neither the UN nor any state can take it away by majority vote; from the government’s perspective, the right to peace is a stumbling block for policy implementation [Sakamoto 2013: 123]. This question of the status of peace is essential and vital.
If the issue of disarmament is left to governments that are not directly responsive to their citizens, the fundamental interests of the state will take precedence over human rights. The preamble of the UN Charter states that “we the people” are the subjects, which cannot mean that governments and UN agencies can freely exercise their power away without power remaining in the hands of the people.
- Whether to recognize collective rights
The Declaration of the Right of Peoples to Peace in 1984 defined the right to peace as a collective right, meaning that developing countries (or militarily weak countries) can demand that developed ones (military powers) recognize the obligations of states to preserve peace, such as eliminating the threat of nuclear war, renouncing the use of force, and resolving international conflicts. In addition, the right to peace is acknowledged as the right of all human beings, individuals, and nations to live in peace.
Western countries and groups of developed countries opposed the recognition of collective rights themselves in the deliberations of the Intergovernmental Working Group. The UN Declaration on the Right to Peace in 2016 was ultimately adopted as the right of individuals to enjoy peace.
As mentioned, the gap between those in favor of and those against the right to peace could not be bridged. However, the idea of the right to peace was shared in the deliberations of the United Nations, as it was indicated that the right to peace, which makes the individual the rights holder, may conflict with the right of a state of self-defense, and the existence of the right to peace may be a constraint on international organizations and negotiations among major powers. The UN Declaration adopted in 2016 must be further concretized and made into part of a legally binding international human rights treaty.
Right to Live in Peace and National Practices
For the future realization of the UN Declaration on the Right to Peace, domestic examples of the right to peace in practice is necessary in each country. In the constitutions and court decisions of some countries, the human right to peace has had the practical effect of restricting military activities to some extent. Such practical examples may lead to future work to concretize the right to peace and to develop international human rights treaties.
Article 9 of the constitution of Japan prohibits the retention of armed forces, and the preamble of the constitution provides the right to a peaceful existence. This right has been invoked in postwar lawsuits against the Self-Defense Forces (SDF) of Japan, US military bases, and the US-Japan Security Treaty. The right to live in peace is an example of a restriction on state military action by recognized human rights. This right has been judged in some cases not in relation to the perspective of security but from the perspective of human rights, although there have been few such cases.
In the 1970s, after missiles were deployed at a base by the SDF in Naganuma, Hokkaido, residents living near the base filed a lawsuit, claiming that the SDF were violating their right to live in peace and violating Article 9 of the Constitution. The Sapporo District Court decision of September 7, 1973 recognized the right to live in peace as the right not to be attacked by an enemy nation and recognized the standing of the victims.
After the unconstitutional deployment of the SDF to Iraq during the Iraq War in 2003, the Nagoya High Court decision on April 17, 2008, recognized the right to live in peace as a legal right, applying here as the right of citizens not to be forced to participate in acts of war.
Likewise, the Okayama District Court decision on February 24, 2009, held that the right to live in peace includes the right to refuse conscription, the right to refuse conscientious objection to military service, and the right to refuse military labor.
The judgments of the legal system on the right to live in peace in these rulings were based on the assessment of human rights violations, assuming specific human beings such as residents and citizens, apart from the legal and policy judgments of the government in favor of or against establishing SDF missile bases or deploying the SDF overseas.
In South Korea, it was ruled that the right of the residents to live in peace around the US military base was being violated. In a lawsuit filed after a US military base in South Korea was expanded and relocated to Pyeongtaek, about 50 kilometers south of Seoul, the residents of Pyongtaek claimed that their right to live in peace had been violated.
The South Korean Constitutional Court’s ruling on February 23, 2006 recognized the existence of the right to peaceful existence, stating the following:
The claimants argue that the relocation of US military units in accordance with the treaties is intended to change the US military presence in Korea from a defensive to an offensive military force, thus violating the right to live in peace as recognized by the right to pursue happiness, i.e., the right of each individual to live in peace without being involved in armed conflict and killing.
In Costa Rica, a September 8, 2004, a Constitutional Court ruling recognized the existence of the right to peace in a case that challenged the violation of the Constitution of Peace in joining the Coalition of the Willing to fight in Iraq. In addition, in a September 24, 2008, ruling of the Constitutional Court in Costa Rica, it was asserted that laws and regulations allowing the extraction of uranium and thorium, the production of nuclear fuel, and the manufacture of nuclear reactors were contrary to the values of peace because of the possibility of the creation of weapons associated with acts of war thus violating the right to peace recognized by the United Nations and the previous 2004 ruling; the ruling indicated the following:
It is clear that the right to peace has a normative recognition in Costa Rican institutions not only in the text of the Constitution, but also in the international treaties ratified by our country, a jurisprudential recognition in the decisions of the Constitutional Court, and, above all, a social recognition based on the feelings and actions of the Costa Ricans themselves.
The 1984 United Nations Declaration of the Right of Peoples to Peace was cited as the source of the “norm derived from international treaties.”
The right to conscientious objection to military service has been recognized in South Korea and the United States.
In Bolivia, the right to peace is written into the 2009 Constitution (Article 10.1) “Bolivia is a pacifist state that promotes the culture of peace and the right to peace.”
Such practical examples from many countries will also help to concretize and enrich the content of the right to peace in the future, which in turn will enrich the means to allow the UN Charter to achieve its goal of preventing war.
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On the occasion of the 75th anniversary of the UN Charter, it is necessary to reaffirm that its highest purpose is the maintenance of peace. Additionally, the UN Declaration on the Right to Peace in 2016 combines the international human rights developments after the war with the Charter. In the future history of the UN Charter, it will be necessary to add to this combination by establishing the right to peace as a right with more legal force. In this process, the IADL, as a legal organization that aims to realize the objectives of the UN Charter, may play a special and important role.
Reference
Duran, V. C & Pérez, F. C, (2013) “General Introduction,” in Durán, V. C and Pérez, F. C, eds., The International Observatory of the Human Rights to Peace: Spanish Society for International Human Rights Law, 33-36
Fernández, G. C. and Puyana, F. D. (2017) The Right to Peace: Past, Present and Future, University for Peace
Mekata, Motoko (2003) Citizen Network Beyond Borders, Toyo Keizai Inc. 2003
Sakamoto, Shigeki (2014) “The challenges facing the Advisory Committee in the work on the Draft Declaration on the Right to Peace, International Human Rights No. 25, Shinzansha,
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.