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Analysis of the International Debate on the Right to Peace in the Context of the Human Rights and Intergovernmental Bodies of the United Nations

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Analysis of the International Debate on the Right to Peace in the Context of the Human Rights and Intergovernmental Bodies of the United Nations Analysis of the international debate on the right to peace in the context of the human rights and intergovernmental bodies of the United Nations “Analysis of the international debate on the right to peace in the context of the human rights and intergovernmental bodies of the United Nations” Mr. David Fernández Puyana Doctoral thesis UPF/2014 Tutor: Dr. Santiago Ripol Carulla (Professor of international law at the University of Pompeu Fabra, Barcelona) 1 Analysis of the international debate on the right to peace in the context of the human rights and intergovernmental bodies of the United Nations Acknowledgments The enforcement and promotion of world peace requires the collective effort of many people, and the same is true for this doctoral thesis. I would like to express my deepest appreciation to all the people and NGOs who have wholeheartedly supported the process in favour of the recognition of peace as a human right of all individuals and all peoples. I am most indebted to Ambassador Christian Guillermet-Fernández, Chairperson- Rapporteur of the Intergovernmental Open Ended Working Group on the right to peace at the Human Rights Council, who trusted me to assist him on the legal field during my tenure as a member of the dynamic team of the Permanent Mission of Costa Rica to the United Nations in Geneva. I benefited greatly from the edition process carried out by Donna Perry, the University of Massachusetts, Worcester (USA). Especially valuable was the support and friendship of Jussi Ojala, Elina Korhonen and Aaro Rytkönen (Finnish Church Aid), Christina Papazoglou (World Council of Churches) and Jaime Aranzadi, Miguel Bose and Juanes (Foundation Peace without Borders). Additionally, I m very pleased for the great support provided by Cristina Giordano and Carla Bellota (United Nations Office at Geneva Library) in the elaboration of this research. In this acknowledgment, I would like to stress my deepest gratitude for the comments and suggestions received from Santiago Ripol i Carulla, tutor of my thesis. Finally, my greatest debt, in this thesis as in all my life, is to my wife, daughter, sons, brother and parents. They inspired me to continue progressing this research work into our common shared goal of love, peace and compassion. 2 Analysis of the international debate on the right to peace in the context of the human rights and intergovernmental bodies of the United Nations Abstract Since the inception of the United Nations in 1945 the international community has been actively engaged in the promotion and strengthening of world peace through the adoption of different peace laws and resolutions. In particular, the Charter of the United Nations and the International Bill of Rights are considered relevant legal instruments whose main purpose is the realisation of peace and consequently, the progressive elimination of war and armed conflict across the earth. Following these precedents, some Member States and stakeholders are currently promoting the adoption by the Human Rights Council and General Assembly of a new instrument on the right to peace. This thesis will analyze the ongoing debate and its legal background in accordance with international law and human rights. The thesis proposes the concept of the right to live in peace, human rights and development as a means to further elaborate the right to peace in the context of the human rights paradigm. 3 Analysis of the international debate on the right to peace in the context of the human rights and intergovernmental bodies of the United Nations Introduction This thesis proposes the right to live in peace, human rights and development as a means to reinforce the linkage between the right to life and the three main pillars of the United Nations. Since the right to life is massively violated in a context of war and armed conflict, the international community should elaborate this fundamental right in connection to these latter notions in order to improve the conditions of life of humankind. The right to live in peace is more linked to human rights than the so called right to peace in both its individual and collective dimension. It should be noted that the recent regional and States‘ practices have not still elaborated a concept of the right to peace linked to human rights. These legal instruments have continued by using the notion of the right to peace in the context of the relationship among States without referring properly to human rights and fundamental freedoms. Therefore, taking into account that we have two possible options, right to live in peace or right to peace, both of them recognized by different soft law instruments, I prefer the first one because in this case peace is more linked to human rights. In addition, as we will see in this research, we should recall that the Human Rights Council is mainly devoted to promote and protect victims of human rights violations, even in a context of conflict. To elaborate this option, the thesis will set the record straight by analyzing the current international legal debate on peace and human rights and the right to peace in the context of the main human rights and intergovernmental bodies of the United Nations. Particularly, the contribution of the General Assembly, Commission on Human Rights and the Human Rights Council of the United Nations to the ongoing discussion process will be carefully analyzed in light of key international human rights instruments. To reach this aim, the thesis will be divided into four main chapters: The first chapter will be focused on the relationship between peace and human rights under international law. In particular, the concept of peace and security and the human rights approach in the Charter of the United Nations will be studied. Afterwards, the main principles of international law will also be analyzed in light of the different international, regional and domestic instruments. As indicated by the General Assembly and other important legal sources, international law is a means to promote peace and human rights in the world. In regard to the analysis of the Universal Declaration of Human Rights, the thesis will be exclusively focused on the concept of peace and human rights in its negotiation process, the discussion about its legal form, the concept of peace and human rights in its Preamble and its impact in the field of peace and human rights. Afterwards, other human rights instruments and the regulation of peace and human rights in the regional human rights instruments and national Constitutions will also be studied in the context of the latest developments of international law. The second chapter will be focused on the notion of the right to peace under international law. The elaboration of the right to peace within the UN mandates, in particular, international solidarity and the democratic and equitable international order, will be analyzed. In addition, both the historical approach, legal analysis and follow-up of the Declaration on the Preparation of Societies for Life in Peace of 1978 and the Declaration on the Right of Peoples to Peace of 1984 will later be studied by taking into account the main resolutions adopted by the human rights bodies of the United Nations. In addition, the leading role played by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in the promotion of peace, tolerance and friendship among nations will also be analyzed. In particular, the initiative of the human right to peace and the Declaration and Programme of Action on a Culture of Peace will be studied in order to recall the importance of human rights in the 4 Analysis of the international debate on the right to peace in the context of the human rights and intergovernmental bodies of the United Nations promotion of peace. In addition, the right to peace has been recognized in both the national constitutions and regional instruments and jurisprudence. However, most of the constitutional and regional texts have elaborated a concept of the right to peace by taking only into account a conception based on the relationship between States and without referring properly to human rights issues. The third chapter will be focused on the sources of international law and the legal status of peace. The General Assembly is intended to adopt a declaration whose main purpose is to generate widespread and consistent state practice and/or provide evidence of opinio juris of a customary rule. The current debate and content of the right of peoples to peace will be analyzed. In particular, the outcome of this lively discussion will be analyzed principally by taking into account the main inputs proposed by different stakeholders in the following bodies, working groups and workshops: Human Rights Council, its Advisory Committee, the Workshop on the right of peoples to peace, the first session of the Intergovernmental Open- Ended Working Group on the right to peace and the informal consultations on the right to peace. Many governmental delegations have constantly indicated that a stand-alone ―right to peace‖ does not exist under international law. Afterwards, the research will study the main points of concurrence expressed by the different stakeholders in this debate: firstly, war and armed conflict are outlawed by international law; secondly, human rights and fundamental freedoms are massively violated in a context of war and armed conflict; thirdly, the principles of cooperation and protection of human rights are really important in the prevention of war and armed conflict; fourthly, the right to life is closely linked to the notion of peace and fifthly, the legal basis of the human rights legal system is the concept of human dignity. In addition, the different competences between the Security Council and Human Rights Council in the field of human rights and peace and security will also be studied.
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