English for Lawyers (ENGSEMJ) Topics in Int l Law and Human Rights

Transcription

1 English for Lawyers (ENGSEMJ) Topics in Int l Law and Human Rights Chapter #2 The Obligations of States Peace, r.t.hustad@nchr.uio.no

2 The Primary Obligation of States: Peace Montevideo Convention (1933) Art. 10: the primary interest of states is the conservation of peace UN Charter (1945) Art. 2 (3): All members shall settle their international disputes by peaceful means Art. 2 (4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state Art : Only the UN Security Council can use force to restore international peace and security. Declaration on the Right of Peoples to Peace (UNGA Res. 39/11, 12 Nov 1984) Ren[ounce] the use of force in international relations Convinced that life without war serves as the primary international prerequisite for the material well-being, development and progress of countries, and for the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations

3 What is Peace?

4 Two Types of Peace? LIFE WAR = NEGATIVE PEACE LIFE + SUBSTANCE = POSITIVE PEACE (Life without war) (Life with quality)

5 Is this peace? If State Conflict Negative Peace, then No State Conflict = Negative Peace Iran vs. Iraq War,

6 Is this peace? Is negative peace only about international conflict? Bombing of the White House of Russia (Supreme Soviet) by Russian Military (4 October 1993) Declaration on the Right of Peoples to Peace (UNGA Res. 39/11, 12 Nov 1984):... the right of peoples to peace...

7 Is this peace? Is negative peace only about two parties at war? Kurds fleeing The Repression in Iraq (1991) Ca. 200,000 to 400,000 dead Genocide in Rwanda (1994) Ca. 800,000 dead Covenant on Civil and Political Rights: Art. 6 (1): Every human being has the inherent right to life. No one shall be arbitrarily deprived of his life. Art. 9: Everyone has the right to liberty and security of person.

8 Is this peace in the West? If No War = Life with Substance (Development), then Negative Peace = Positive Peace Earth by Night

9 Is this peace? What is the purpose of the conflict? If Life with Substance = War, then (arguably in this occasion) Positive Peace Negative Peace World War II Battle of Normandy 6 June 1944

10 Is this peace? What is the purpose of the conflict? - Is the conflict in self-defense? - Did an armed attack occur? - Was an armed attack imminent & significant If Life with Substance = Self-defense Conflict, then Positive Peace Negative Peace Israeli-Lebanon War (2007)

11 Is this peace? What is the purpose of the conflict? What is the purpose of the specific attack? -Is the attack proportional to obtain the objective of positive peace? If Life with Substance = An Act within a War (disaggregated war), then Positive Peace Negative Peace Gulf War I (1991) Highway 80 from Kuwait City The Mile of Death

12 Is this peace? What is the purpose of the conflict? What is the purpose of the specific attack? - Is the attack proportional to the objective of positive peace? - Is the attack necessary to the objective of positive peace? If Life with Substance = An Act within a War (disaggregated war), then Positive Peace Negative Peace The Atomic Bombing of Hiroshima, Japan (1945)

13 Is this peace? Is peace only linked to war? Or is it linked to life? Do states have obligations for positive peace? Poverty kills an estimated 20,000 to 50,000 people per day! Is there a difference? War causes death. Poverty causes death.

14 The Right to Positive Peace Declaration on the Right of Peoples to Peace (UNGA Res. 39/11, 12 Nov 1984)...life without war serves as the primary international prerequisite for the [ ] full implementation of the rights and fundamental human freedoms proclaimed by the United Nations States should adopt[... appropriate] measures at both the national and the international level. Covenant on Economic, Social and Cultural Rights, Art. 2 (1): Each State Party [ ] undertakes to take steps [ ] to the maximum extent of its available resources [ ]. Take steps: To do something. To take positive measures. Maximum extent: Use of resources wisely and productively Available resources: Use of all potential sources of funding (international aide, loans, natural resources, etc.) CESCR, General Comment 3 Minimum core: States must prioritize the most vulnerable by immediate fulfillment of basic necessities (food, housing, shelter, medical care, education )

15 What is a Violation of a Right to Positive Peace? Preventable conditions of poverty? Steps taken? Use of resources? Zimbabwe under the rule of Robert Mugabe (hyperinflation, widespread poverty, and food shortages)

16 What is a Violation of a Right to Positive Peace? Preventable conditions of poverty? Steps taken? Use of resources? Poverty in the United States of America, the aggregate wealthiest state on Earth

17 What is a Violation of a Right to Positive Peace? Preventable conditions of poverty? Steps taken? Use of resources? Supreme Court of India (Municipal Council, Ratlam v. Vardichand, 4 SCC 162 (1980)): The [law] has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defense a self-created bankruptcy or perverted expenditure budget. That cannot be. [...] The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice.

18 Discussion Exercises Now until 17:00: discussion within groups 17:00 17:15: Break (or informally continue group discussions) 17:15 17:30: Continue discussion within groups 17:30 17:45: Exercise A (5-minute intro for each group) 17:45 18:00: Exercise B (5-minute intro for each group) Exercise A: Consider the embargo of Cuba by the United States. Team 1: On behalf of the United States, argue that the embargo is not a violation of the right to peace. Team 2: On behalf of Cuba, argue that the embargo is a violation of the right to peace. Exercise B: Consider the recent war in Gaza. Team 3: On behalf of Israel, argue that the military action was not a violation of a right to peace. Team 4: On behalf of the territory commonly referred to as Gaza, argue that the Israeli military action was a violation of the right to peace.

19 Discussion Exercise A Team 1 (USA) & Team 2 (Cuba) INTERNATIONAL COURT OF JUSTICE THE UNITED STATES OF AMERICA V. THE REPUBLIC OF CUBA

20 Discussion Exercise A Team 3 (Israel) & Team 4 ( Gaza ) INTERNATIONAL COURT OF JUSTICE Acting under advisory jurisdiction THE MATTER OF CERTAIN MILITARY ACTIONS IN AND AROUND THE TERRITORY KNOWN AS GAZA