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David Fernández Puyana
Spanish Society for the Advancement
of
International Human Rights Law
- SSIHRL
The
Human Right to Peace
The Spanish Society for the Advancement of the International Human Rights Law adopted in October 2006 the “Luarca Declaration on the Human Right to Peace”, which represents the result of many meetings of Spanish intellectuals and professors of international law and international relations in the years 2004-2006. The Association is currently organizing regional meetings in Africa, North and South America, Asia, and Europe and the Arab world. In March 2007 a consultation took place at the Palais des Nations to coincide with the fourth session of the Human Rights Council. The purpose of these meetings is to take into account the approach of different cultures in relation to the human rights to peace, and to focus on the mutual relationship between peace and human rights. The international prohibition of aggression contained in article 2, paragraph 4, of the UN Charter may also be viewed from the aspect of a human right to peace. War as an instrument of national policy must be outlawed. Preventive or preemptive wars must never be allowed again. Among the so-called third generation rights, the right to peace is paramount, because, unless humanity enjoys peace, it cannot exercise its first and second generation rights, namely its civil, political, economic, social and cultural rights. On 12 November 1984 the United Nations General Assembly adopted Resolution 39/11 annexing the Declaration on the Right of Peoples to Peace, which reaffirms “that the principal aim of the United Nations is the maintenance of international peace and security” and the “aspirations of all peoples to eradicate war from the life of mankind and, above all, to avert a world-wide nuclear catastrophe”. By virtue of operative paragraph 2, the declaration proclaims “that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State.” In paragraph 3, the declaration “demands that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means.” The General Assembly declaration has been reaffirmed in countless resolutions, including by the United Nations Commission on Human Rights. In its resolution 2002/71 of 25 April 2002, the Commission links the right to peace with the right to development, affirms “that all States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries” and urges “the international community to devote part of the resources made available by the implementation of disarmament and arms limitation agreements to economic and social development, with a view to reducing the widening gap between developed and developing countries.” _______________________________________________________________ |
Luarca Declaration
on the Human Right to Peace
We, the undersigned, a panel of experts convened at the Casa de Cultura
in Luarca (Asturias) to draft a Universal Declaration on the Human Right to
Peace, promoted by the Spanish Society
for the advancement of human rights law, with the support of the Agencia Catalana de Cooperación al Desarrollo
de
Having regard to the conclusions and recommendations formulated at the
regional seminars of experts regarding the draft Universal Declaration on the
Human Right to Peace held in Gernika (30
November and 1 December 2005), Oviedo (27-28 July 2006), Las Palmas de Gran
Canaria (17-18 August 2006), Bilbao (15-16 September 2006), Madrid (21-22
September 2006), Barcelona (28-29 September 2006) and Seville (13-14 October
2006);
Have formulated the following Declaration on
Declaration on the Human Right to Peace
—
Preamble —
The
General Assembly,
(1) Considering that, in accordance with the
Preamble to the Charter of the United Nations and the purposes and principles
established therein, peace is a universal value, the raison d'être of the
Organisation and a prerequisite and consequence of the enjoyment of human
rights by everyone;
(2) Recognising the positive concept of peace which
goes beyond the strict absence of armed conflict and is linked to the economic,
social and cultural development of peoples as a condition for satisfying the
basic needs of human beings, to the elimination of all kinds of violence and to
the effective respect for all human rights;
(3) Taking account of the principles and rules enshrined
in the basic instruments of the United Nations in respect of human rights, in
particular the Universal Declaration of Human Rights, the Declaration on the
Right to Development, the International Covenant on Economic, Social and
Cultural Rights, the International Covenant on Civil and Political Rights, the
International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention on the Elimination of All Forms of Discrimination
against Women, the Convention on the Rights of the Child, the Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
and the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families;
(4) Considering that international law constitutes
an instrument whose proper and effective implementation is essential to the
attainment of peace, and that this is the shared responsibility of men and
women, peoples, states, international organisations, civil society,
corporations and other elements of
society and, in general, of the whole international community;
(5) Recalling that the Charter of the United
Nations requires Member States to settle their international disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered, and to
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 and principles of the United
Nations;
(6) Recalling the Istanbul Declaration, adopted by
Resolution XIX (1969) of the XXI
International Red Cross Conference, which states that human beings have the
right to enjoy lasting peace and Resolution 5/XXXII (1976) of the United
Nations Commission on Human Rights, which affirms that everyone has the right
to live in conditions of peace and international security;
(7) Recalling too the relevant resolutions of the
General Assembly, inter alia resolution 33/73 of 15 December
1978, which adopts the Declaration on the Preparation of Societies for
Life in Peace; resolution 39/11 of 12 November 1984, which proclaims the
Declaration on the Right of Peoples to Peace; resolution 53/243 of 13 September
1999, which proclaims the Declaration on a Culture of Peace, the Rio
Declaration on Environment and Development of 1992; and resolution 55/282 of 7
September 2001, which decided that the International Day of Peace is to be
observed on 21 September each year;
(8) Recognising too that, in accordance with the Preamble to
the Constitution of the United
Nations Educational, Scientific and Cultural Organization, “since wars begin in
the minds of men, it is in the minds of men that the defences of peace must be
constructed”, and
that, according to that Organisation, it is necessary to promote a culture of
peace, by which is meant a set of
values, attitudes, modes of behaviour and ways of life that reject violence and
prevent conflicts by tackling their root causes
through dialogue and negotiation among individuals, groups and States ;
(9) Observing that the commitment to peace is a general principle
of international law, in accordance with Article 38.1.c) of the Statute of the
International Court of Justice, as was recognised by the International
Consultation of experts, representing 117 States, on the Human Right to Peace,
held in Paris in 1998;
(10) Considering that the international community
requires the codification and progressive development of the human right to
peace, as a right with its own entity, with universal vocation and
intergenerational character, since it applies to both present and future
generations;
(11) Recalling that human rights are inalienable, universal,
indivisible and interdependent and that the Charter of the United Nations
reaffirms faith in fundamental human rights, in the dignity and worth of the
human person and in the equal rights of men and women;
(12) Conscious of the vulnerability and dependence
of human beings, of the right and need
of individuals and groups to live in peace and to have a national and
international social order established, in which peace has absolute priority,
so that the rights and freedoms proclaimed in the Universal Declaration of
Human Rights can be fully realised;
(13) Considering that the promotion of a culture of peace, the
world-wide redistribution of resources and the achievement of social justice
must contribute to the establishment of a new international economic order
which will facilitate the fulfilment of the proposals of this Declaration, by
eliminating the inequality, exclusion and poverty which generate structural
violence incompatible with peace on the national and international levels;
(14) Bearing in mind that peace must be based on justice,
and concerned for the fate of the victims of violations of human rights and
breaches of international humanitarian law, and recalling their right to
justice, to the truth and to effective remedy which includes the restitution of
their honour, the rehabilitation of their memory and the adoption of measures
to prevent a repetition of those acts, thus contributing to reconciliation and
the establishment of lasting peace;
(15) Conscious that the end of impunity as an
instrument of peace requires every military or security institution to be fully
subordinate to the rule of law, to the fulfilment of obligations arising under
international law, to the observance of human rights and of international
humanitarian law, and to the attainment of peace, and that, therefore, military
discipline and the carrying out of orders from superiors must be subordinate to
the achievement of those objectives;
(16) Also conscious that mass migratory exoduses and
flows are enforced, usually occurring as a response to dangers, threats or the
breakdown of peace, and may, in turn, endanger peace in the countries of
destination, and that, accordingly, the international community must establish as a matter of urgency an
international migration regime which recognises the right of every person to
emigrate and settle peacefully in the
territory of a State, in the circumstances provided for in this
Declaration;
(17) Affirming that the effectiveness of the right
to peace will not be achieved without the realisation of equal rights for men
and women and the respect for their difference, without respect for the various
cultural values and religious beliefs compatible with human rights, and without
the eradication of racism, xenophobia and the contemporary forms of racial
discrimination;
(18) Recognising the particular suffering of women in
armed conflicts, and underlying the importance of their full participation
in peace-building processes, as
recognised by the United Nations Security Council in its resolution 1325
(2000);
(19) Concerned because arms manufacture, the arms race and the
excessive and uncontrolled traffic of all kinds of arms jeopardise peace and
security, and also impede the realisation of the right to development;
(20) Persuaded that the attainment of peace is intrinsically linked to environmental
protection, and to an economic, social and cultural development of all peoples
environmentally and humanly sustainable;
(21) Persuaded too that peace has been and
continues to be the constant aspiration of all civilisations throughout the
history of mankind, and therefore we must all join our efforts to its effective
realization.
Proclaims the following Declaration:
Part I
Article 1
Holders
Individuals, groups and peoples have the inalienable right to a just,
sustainable and lasting peace. By virtue of that right, they are holders of the
rights proclaimed in this Declaration.
Article 2
Right to education on peace and human rights
Every person has the right to receive peace and human rights education,
the basis of every educational system, which will help to generate social
processes based on trust, solidarity and mutual respect, promote the peaceful
settlement of conflicts and lead to a new way of approaching human
relationships.
Artículo 3
Everyone has the right to human security, which shall include inter
alia:
a) The right to have the material
instruments, means and resources which enable him/her to fully enjoy a life
worthy of human dignity and, to that end, the right to have essential food and
drinking water, primary health care, basic clothing and housing and a basic education;
b) The right to enjoy fair conditions
of employment and trade union participation, and the right to the protection of
the social services, on equal terms for persons having the same occupation or
providing the same service.
Article 4
Right to live in safe and healthy environment
Human beings and peoples have the right to live in a private and public
environment which is safe and healthy, and to receive protection against acts
of unlawful violence, irrespective of whether they are perpetrated by state or
non-state actors;
Article 5
Everyone, individually or in a group, has the right to civil disobedience and conscientious objection for peace, which consists in:
a) The right to civil disobedience in
respect of activities which involve threats against peace, including peaceful
protest and peaceful non-compliance with laws which offend the conscience;
b) The right of the members of any
military or security institution to disobey criminal or unjust orders during
armed conflicts and to refrain from participating in armed operations, whether
international or national, which violate the principles and norms of
international human rights law or international humanitarian law;
c) The right to refrain from
participating in - and to denounce publicly - scientific research for the
manufacture or development of arms of any kind;
d) The right to acquire the status of
conscientious objector in respect of military obligations;
e) The right to object to paying taxes
allocated to military expenditure and to object to taking part, in a working or
professional capacity, in operations which support armed conflicts or which are
contrary to international human rights law or international humanitarian law;
Article 6
Right to resist and oppose barbarity
1. All individuals and peoples have the right to resist and even to rebel against serious, mass or systematic violations of human rights and of the right of peoples to self-determination, in accordance with international law.
2. Individuals and peoples have the right to oppose war, war crimes, crimes against humanity, violations of human rights, crimes of genocide and aggression, any propaganda in favour of war or inciting violence, and violations of the human right to peace, as defined in this Declaration.
Article 7
Right to refugee status
1. Everyone has the right to seek and obtain refugee status in any country, without discrimination, in the following circumstances:
a) If the
person is persecuted for activities supporting peace, opposing war or promoting
human rights;
b) If the person
has a justified fear of persecution by state or non-state agents, on grounds of race, sex, religion,
nationality, membership of a particular social group or political opinion;
c) If the person is the victim of enforced
displacement, international or national, occasioned by any kind of armed
conflict or environmental disaster.
2. Refugee status shall include:
a) The right
to integration into society and employment;
b) The right
to effective remedy, in accordance with this Declaration, for violations of
human rights and fundamental freedoms;
c) The right to return to the country of origin
with the proper guarantees, once the causes of persecution have been removed
and, depending on the circumstances, the armed conflict has ended.
Article 8
Right to emigrate, to settle peaceably and to
participate
1. Everyone has the right to emigrate
and to settle peaceably, and also to return to his/her country of origin. No foreigner may be expelled without the proper guarantees provided for
in international law and in accordance with the principle of non-refoulement.
3. Everyone has the right to participate, individually or in a group, in the public affairs of the country in which he/she has his/her habitual residence.
4. Every person or group has the right to the establishment of specific mechanisms and institutions for participation which ensure the free and public expression of his/her/their individual and collective concerns and claims.
Article 9
Exercise of the freedom of thought, conscience and
religion
Everyone has the right to express publicly his/her freedom of thought,
conscience and religion; and to respect for his/her right to have, adopt and express,
individually or in a group, the beliefs and convictions of his/her choice, as
established in international human rights law.
Article 10
Right to an effective remedy
1. Everyone has the right to an
effective remedy to protect him/her against violations of his/her human rights.
2. Everyone has the imprescriptible and unrenounceable right to obtain justice in respect of violations of his/her human rights, which shall include the investigation and establishment of the facts, as well as the identification and punishment of those responsible.
3. The victims of violations of
human rights, the members of their families and society in general have the
right to know the truth.
4. Every victim of a violation of human rights has the right to restoration of his/her rights and to obtain redress in accordance with international law, including the right to compensation and measures of redress or symbolic reparation, as well as guarantees that the violation will not be repeated.
Article 11
Right to disarmament
Individuals and peoples have
the right:
a) Not to be
regarded as enemies by any State;
b) To the general
and transparent disarmament of all States, together and in a coordinated
manner, within a reasonable time and under efficient and comprehensive international
supervision;
c) To the
allocation of the resources freed by disarmament to the economic, social and
cultural development of peoples and the fair redistribution of such resources,
responding especially to the needs of the poorest countries and to vulnerable
groups, in such a way as to put an end to inequality, social exclusion and
poverty.
Article 12
Right to
development
1. All individuals and all peoples have the inalienable right to participate in an economic, social, cultural and political development in which all the human rights and fundamental freedoms shall be fully realised, and to contribute to and enjoy that development.
2. All individuals and all peoples have the right to the elimination of obstacles to the realisation of the right to development, such as service of the foreign debt or maintenance of an unjust international economic order which generates poverty and social exclusion.
Article 13
Right to a sustainable natural environment
All individuals and all peoples have the right to live in a sustainable
natural environment, as a basis for the peace and survival of mankind.
Article 14
Vulnerable
groups
1. All persons belonging to vulnerable groups have the right
to an analysis of the specific effects on enjoyment of their rights of the
different forms of violence to which they are subject, and to the adoption of
measures in that respect, including recognition of their right to participate
in the adoption of those measures.
Article 15
Requirements of peace and truthful information
Individuals and peoples have the right to demand that peace actually be achieved, and they shall therefore:
a) Require the States to engage in the
effective implementation of the
colective security system established in the Charter of the United Nations, and
to friendly settle disputes and, in any event, in full compliance with the
rules of international human rights law and international humanitarian law;
b) Denounce any act which threatens or
violates the human right to peace and, to that end, receive objective
information related to conflicts;
c) Participate freely and by any
peaceful means in political and social activities and initiatives to protect
and promote the human right to peace, without abusive interference from the
public authorities at local, national and international level.
Obligations for the realisation of the human
right to peace
1. The effective and practical realisation of the human right to peace necessarily involves duties and obligations for States, international organisations, civil society, peoples, men and women, corporations and other elements of society and, in general, the whole international community.
2.
Under the current international order the
fundamental responsibility for preserving peace and protecting the human right
to peace lies with the States and also with the United Nations Organisation as
a centre which harmonises the concerted efforts of all nations to fulfil the
purposes and principles proclaimed in the Charter of United Nations.
3. States have the obligation to protect
human rights, to prevent and cooperate in the prevention of catastrophes, to
respond to catastrophes when they occur and to repair the damage caused. They are also required to adopt measures to build and consolidate peace.
4.
The United Nations Organisation should
be further enabled to prevent violations
and protect human rights and human dignity, including the Human Right to Peace, in cases of serious or
systematic violations. In particular, it is for the Security Council, the General Assembly, the
Human Rights Council or any other competent body to take effective measures to
protect human rights from violations which may constitute a danger or threat to
international peace and security.
5. Any unilateral military intervention by one or more States, without the preceptive authorisation of the Security Council within the framework of the Charter of the United Nations, is unacceptable, constitutes a serious infringement of the purposes and principles of the Charter and is contrary to the human right to peace.
6. The composition and procedures of the Security Council shall be reviewed so as to ensure the proper representation of the current international community and transparent working methods which recognise the participation of civil society and other elements of the international community.
7. The United Nations system must
be fully and effectively involved, through the Peacebuilding Commission, in the
preparation of integral strategies for this purpose and in the reconstruction of countries concerned once the armed
conflicts have ended, ensuring stable sources of financing and effective
coordination within the system.
Article 17
Establishment of the Working Group on the Human Right
to Peace
2. The Working Group will be composed of experts from the Member States of the United Nations who will carry out their duties with complete independence and in a personal capacity.
3. The following criteria will be taken into account for their election:
a) The
experts shall be of high moral standing, impartiality and integrity, and show
evidence of long and appropriate experience in any of the spheres stated in
Part I of this Declaration;
b) Equitable
geographical distribution and representation of the different forms of
civilisation and of the main legal systems of the world;
c) There
shall be a balanced gender representation; and
d) There may
not be two experts from the same State.
4.
The members of the Working Group will be elected by secret
ballot at a session of the United Nations General Assembly from a list of
candidates proposed by the Member States. The ten candidates who obtain the highest number of votes and a two
thirds majority of the States present and voting will be elected. The initial
election will take place at the latest three months after the date of adoption
of this Declaration.
5. The experts will be elected for four years and may be re-elected only once.
6. Half of the Working Group will be renewed every two years.
Article 18
Functions of the Working Group
1. The main function of the Working Group is to promote the observance and implementation of this Declaration. In the exercise of its mandate it has the following competences:
a) To
promote worldwide observance and awareness of the human right to peace, acting
with discretion, objectivity and independence and adopting an integral approach
which takes account of the universality, interdependence and indivisibility of
human rights and the overriding need to achieve international social justice;
b) To gather, analyse and respond effectively to any relevant information
from States, international organisations and their bodies, civil society
organisations, concerned individuals and any other reliable source;
c) Whenever appropriate, to address recommendations and appeals to Member States of the United Nations to adopt appropriate measures for the effective realisation of the human right to peace, in accordance with Part I of this Declaration. The States shall give due consideration to those recommendations and appeals;
d) To draw up, on its own initiative or at the request of the General Assembly, the Security Council or the Human Rights Council, the reports it deems necessary in case of an imminent threat to or serious violation of the human right to peace, as defined in Part I of this Declaration;
e) To submit an annual report of its activities to the General Assembly, Security Council and Human Rights Council, in which it will include the recommendations and conclusions it considers necessary to the effective promotion and protection of the human right to peace, paying special attention to armed conflicts;
f) To prepare, to the attention of the
General Assembly, a draft international convention which shall include the
human right to peace, as well as a mechanism for supervising and monitoring its
effective implementation. Both the mechanism to be established in the
convention and the Working Group will coordinate their mandates and avoid
duplicating their activities;
g)
To bring to the attention of the Prosecutor of the International
Criminal Court or other competent international criminal court or tribunal,
reliable information about any situation in which it appears that crimes which
fall within the jurisdiction of the Court or of the international criminal
tribunal have been committed;
h) To approve by majority of its members the working methods for
the ordinary functioning of the Working Group, which shall include, inter alia,
rules governing the appointment of the Bureau, as well as the adoption of its
decisions and recommendations.
2.
The Working Group will have its seat in
Final
Provisions
1. No provision of this Declaration may be interpreted as meaning that it confers on any State, group or individual any right to undertake or develop any activity or carry out any act contrary to the purposes and principles of the United Nations, or likely to negate or infringe any of the provisions of this Declaration, the International Bill of Human Rights or the international humanitarian law.
2. The provisions of this Declaration shall apply without prejudice to any other provision more propitious to the effective realisation of the human right to peace formulated in accordance with the legislation of the Member States or stemming from the prevailing international law.
3. All States must implement the provisions of this Declaration by adopting the relevant legislative, judicial, administrative, educational or other measures necessary to promote its effective realisation.
The Drafting Committee
Ángel Chueca Sancho, Professor of Public International
Law at the
Carmelo Faleh Pérez, Professor of Public International Law at the University of Las Palmas de Gran Canaria. International human rights law specialist. General Secretary of SSIHRL
Héctor Faúndez Ledesma, Director of the Centre for Human
Rights Studies at the
Mercedes Fernández Menéndez, Professor of French Philology in
the Faculty of Philology of the