International human rights law is also part of the foundation for the IL of peace. A human rights law momentum resulted in a UN General Assembly Resolution affirming the human right to peace, and implicitly, a human right to life. The 2016 Human Right to Peace was the result of extensive work coming out of the UN and joined other soft laws requiring peace already in existence. Meyres McDougal provocatively makes this comment in his 1989 article on “Law and Peace”:
Hence, for reasons of interdependence or identity, there can be but one answer to President John F. Kennedy's question "Is not peace, in the last analysis, basically a matter of human rights?"12 The basic community policies that underlie conceptions of peace and human rights are in any democratic community the same policies that underlie all law (1989).
The “Declaration on the Right to Peace” was adopted by the General Assembly on
December 19, 2016. It states that “everyone has the right to enjoy peace such that all human rights are promoted and protected and development is fully realized” (A/RES/71/189). Art. 2 and
3 require that states “should” take certain steps that would assist in building peace. “Should” expresses what is accepted as “right” conduct by states. In Art. 4 states “shall” promote education for peace, so that provision is legally binding. Art. 5 reiterates that nothing in the declaration “shall” be interpreted as “contrary to the purposes and principles of the UN” (A/RES/71/189). Unfortunately, that means that states still may use Charter protected self- defense as an excuse for the use of force.
All resolutions of the General Assembly are not necessarily considered hard IL (Oberg 2006). Yet as nonbinding soft law, the human right to peace is progressing in the legalization process of becoming hard law (See Ku, 2012; Diehl and Ku 2010). Ian Hurd says that the power of IL is not from compliance but from its “ability to shape the terrain for political contestation in international relations” (2014, p. 367). A nonbinding resolution has that power despite its nonbinding nature (Oberg 2006).
The new human right to peace represents an IL milestone. The wording of the right does not mandate specific behavior by member states other than promoting education for peace. However, considered in the context of all other requirements of IL and the UN Charter, one may argue that the new Right to Peace is soft IL. Given that position, one may also argue that it is binding on all whether by consent or not. Raising the specter of enforcement difficulties does not negate the existence of the right any more than enforcement issues would negate the existence of any IL (Abbott, et al. 2000). The legal effect of this new human right to peace will be determined as states, IOs and international courts react to it. If the SC uses it to make decisions to protect international peace, then it will move toward binding IL. As state and non- state actors act as though they accept it as binding, it will become so over time. How much time will that process take? There is no way to predict a timeline.
One very important aspect of the Human Right to Peace is its potential for use as a legal tool to control some of the civil wars that are prevalent now. Hathaway and Shapiro find empirically that “violations of basic economic and social rights and physical integrity rights increase the risk of civil war, while the effect of other civil and political rights is minor” (2017 Ch. 7). The implication is that increasing the strength of human rights IL can “reduce conflict risk” (Ch. 7). There are two ways to approach strengthening HR law. One is discussed in the Conclusion herein involving domestication of international treaties and conventions so that domestic courts will constrain actors within state. There are some limitations on the effectiveness of that method, mainly being that in states with dictators the courts won’t have much chance to be effective. The second method is to use international action through the SC by virtue of Art. 1(3) (encourage respect for human rights), Art. 2(3)(legal obligation to settle international disputes by peaceful means in such a manner that international peace and security and justice are not endangered, Art. 39 (SC to determine the existence of any threat to the peace and to maintain or restore international peace and security) and Art.42 (Ch. VII) (authority of the SC to take measure necessary to maintain or restore international peace and security). Most intra-state conflict spills over into surrounding states threatening international peace and security. The migration and refugee issues of 2014-present are examples of that problem. Human rights law has the potential for growing into a means to control some of this conflict and to minimize the damage to people.
The soft law efforts outlining development of human rights IL generally and contributing to the human right to peace are as influential on the growth of peace law as the Human Right to Peace is (Abbott, et al. 2000). The following series of events illustrates the continuum on Abbott et al.’s spectrum of development for IL from normative statement to soft law. In the conclusion herein, existence of relative obligation, precision and delegation are presented as means to locate
the extent of legalization of a concept. The events listed below although not exclusive, are offered as illustration of human rights law development of obligation, precision and delegation. These efforts are:
15.2.1 1948 UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR):
Art. 3: “Everyone has the right to life, liberty and security of person”.
Art. 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
Art. 8: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution of by law”.
Art. 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.”
Art. 18: “Everyone has the right to freedom of thought, conscience and religion; …
Art. 28: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”
(Cranston 1973 p. 88).
This document forms the foundation for the progress of human rights law for the last 70 years. The new human right to peace culminated from work during those years toward conditions of peace for people.
15.2.2 1949/51 UN Genocide Convention: “Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,”
http://www.preventgenocide.org/law/convention/text.htm 48/2011)
15.2.3 1953-2010 European Convention on Human Rights (ECHR), formerly European
Convention for the Protection of Human Rights and Fundamental Freedoms with Protocols:
Reaffirming their profound belief in those Fundamental Freedoms
which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other
by a common understanding and observance of the Human Rights upon which they depend… (Cranston 1973 p. 137).
15.2.4 1966/1976 INTERNATIONAL ECONOMIC, SOCIAL AND CULTURAL RIGHTS: Considering that, in accordance with the principles proclaimed in the Charter of the UN, 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…the ideal of free human beings
enjoying freedom from fearand want …obligation States under the Charter of
the UN to promote universal respect for, and observance of, human rights and freedoms…
(Cranston, with similar language in the Preamble of the International Covenant on Civil and Political Rights, p. 93 and 107).
15.2.5 1982/1986 Article 23 of the African Charter of Human and Peoples’ Rights, which affirms the right of all peoples to national and international peace, and the duty to strengthen solidarity and friendly relations among peoples.
15.2.6 2006-2010 LUARCA/SANTIAGO DECLARATION ON THE HUMAN RIGHT TO PEACE:
…peace is a universal value…positive concept of peace…taking into
account principles and rules enshrined in the main human rights instruments of the UN…Individuals,groups and peoples have the inalienable right to a just, sustainable and lasting peace… Everyone has the right to human
15.2.7 25-29 JANUARY 2010 HUMAN RIGHTS COUNCIL: adopted for the first time in 2008 a resolution entitled “Promotion of the right of peoples to peace” reiterating the
traditional position that “peoples of our planet have a sacred right to peace” and that
“preservation and protection of this right constitutes a fundamental obligation of each State”. A workshop was held in Geneva in December 2009 to further clarify the content and scope of this right. (UNGA A/HRC/AC?4/NGO/3 20 January 2010). The eventual result of this work was the 2016 General Assembly Resolution adopting the Human Right to Peace. The process of work on the Human Right to Peace illustrated the developmental aspect of peace law generally.