Presentation on theme: "International Law of Peace Cecilia M. Bailliet"— Presentation transcript:
International Law of Peace Cecilia M. Bailliet
Hersch Lauterpacht International Law should be functionally oriented towards both the establishment of peace between nations and the protection of fundamental human rights.
Hans Kelsen He who wishes to approach the aim of world peace in a realistic way must take this problem quite soberly, as one of a slow and steady perfection of the international order.
Mary Ellen O’Connell Law is valued for providing an alternative to the use of force in the ordering of human affairs. In this sense, all of international law is law of peace...
Law of Peace – UN Charter, Regional Charters, UN Declaration on Friendly Relations, UN GA Resolutions, UNESCO declarations – Peace as a Solidarity Right or Civil-Political Right? – Soft Law from Civil Society- The UN Draft Declaration on the Right to Peace
Peaceful Coexistence Grotius, Pufendorf & Vattel- Natural Right to Peaceful Coexistence Sino-Indian Agreement of 29 April ) Mutual Respect for Territorial Integrity and Sovereignty 2) Non-Aggression 3) Non-Interference in Internal Affairs 4) Equality and Mutual Benefit 5) Peaceful Coexistence Bandung Declaration on Promotion of World Peace and Cooperation (1955) adds respect for human rights and UN Charter, settlement of disputes by peaceful means, etc. Non-Aligned Movement, China, and Soviet Union UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States 1970
UN Charter Peaceful Coexistence Art. 2 Mutual respect for each other’s territorial integrity and sovereignty Art 2.4 Mutual Non-Aggression Art. 2 (7) Non-Interference in each other’s internal affairs Preamble, Equality
UN Charter Art 2 (3) Pacific Settlement of Disputes All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered. UN Declaration of International Law concerning Friendly Relations and Cooperation among States Manila Declaration on the Peaceful Settlement of Disputes ICJ -Principle of Pacific Settlement of Disputes considered Customary Law, Military and Paramilitary Activities Case
UN Charter, Art 33 Pacific Settlement of Disputes The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
UN Peacemaking Mandate UN Secretary-General- Good Offices & Mediation, Special Envoys UN Peacebuilding Commission: DDR, elections, rule of law, water, health, job creation UN Security Council, Chapter VI (non-binding) settlement of inter- state disputes, investigation, negotiation, mediation, referral to the ICJ, resort to regional agencies. Calls on states and non-state actors to settle disputes, endorses peace agreements, or recomends settlement procedures. Modest impact, in part due to problems with vetos. UN General Assembly can make recommendations and have emergency sessions, but lacks enforcement powers Regional- Europe, OSCE, OAS, AU, OIC- Peacebuilding, Peace Fund, Peace Academy- limited staffing, funding, transparency, publicity
UN Charter Art 55 Links Inter and Intra-State dimensions of Peace Recognition of Economic and Social Welfare, Development, & Protection of Human Rights as preconditions for peace Specialized agencies: FAO, IFAD, UNESCO, WHO, ILO, World Bank, IMF
Exceptions to the Right to Peace Article 51 The inherent right of individual or collective self- defence if an armed attack occurs... Chapter VII UN Security Council can decide upon non-forcible or forcible measures to restore peace and security
Cançado Trindade Past peace projects have failed because of the focus on abolishing war between states. Consider the basis for peace within each State Role of Non-State Actors Search for social justice within and between nations as the road to peace
Nsongurua J. Udombana What are the components of a right to peace and how to implement it? Is peace linked to human rights? If so, which ones? Is it justiciable? Is the right to peace soft law? How do we protect this 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? Specifically, what is the role of the UN Secretary-General, Security Council, General Assembly, ICJ, regional organizations, national governments, and civil society?
Stephen P. Marks It is the right of every individual to contribute to efforts for peace, including refusal to participate in the military effort, and the collective right of every state to benefit from the full respect by other states of the principles of non-use of force, of non-aggression, of peaceful settlement of disputes, of the Geneva Conventions and Additional Protocols and similar standards, as well as from the implementation of policies aimed at general and complete disarmament under effective international control.
Peace as a Civil and Political Right Richard Bilder: The right to Peace includes the right of every individual to freedom of speech, petition and association in opposition to policies of his or her own government which may lead to or which involve war, the right freely to receive and impart information relevant to the reaching of a judgment on such policies, and the right to conscientious objection.
Philip Alston The Right to Peace is both an individual and collective right and implies duties and obligations from individuals to collectivities, including States and the international community as a whole.
World Peace through World Law- Grenville Clark & Louis B. Sohn
List of problems for conciliation/equity in 1960 Division of Korea and Vietnam Formosa (Taiwan), Quemoy and Matsu The Kashmir problem The question of assured access to the oil of the Middle East The problem of international control of vital passages between seas and oceans, such as Turkish Straits, Suez and Panama The problem of fair apportionment of the waters of various international rivers The questions of a less controversial regime for Berlin The division of Germany The problem of the repression in certain parts of Africa of nonwhite majorities by white minorities (Clark & Sohn characterize as domestic jurisdiction, not endangering world peace) Israeli-Arab hostility (consider resettlement of Arab refugees, problem of the use of Jordan River water, the problem of access to the Gulf of Aquaba and of Israel’s rights of transit through the Suez Canal in light of any decision by ICJ, and boundaries between Israel and neighbours
James T. Ranney Do not need global legislature Use current international instruments, institutions, dispute resolution tribunals (WTO & Law of the Sea as examples) Strengthen economic regulations Improve human rights enforcement (esp. Gender equality) Pursue Global Rule of Law- expand ICC, give ICJ compulsory jurisdiction, create an international equity tribunal Create international police force Promote Arms reduction
Dilemmas Is law insufficient in the face of power interests? Consider struggle to create nuclear free peace zones in the South East Asian Sea and the Climate Change negotiations. Are we lacking sufficient accountability mechanisms? Should we support increased use of conciliation mechanisms? Consider other political institutions (different mandates, current financial crisis affecting them) UN Security Council reform? Compulsory jurisdiction for ICJ? Was it a mistake to identify Peace as a Human Right? Politicization in the UN HRC