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20 February 2013

Oral statement by the Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas

Señor Presidente,

Distinguished delegates, ladies and gentlemen,
As independent expert on the promotion of a democratic and equitable international order, I have listened attentively to the views expressed by Governments and representatives of civil society. 

As we all know, this is a process that the Human Rights Council has decided should go forward.  It is encouraging that there is consensus on the common goal of promoting peace.  Differences of opinion exist on the modalities of implementation.

Bearing in mind that my mandate and the relevant resolutions of the Human Rights Council and General Assembly specifically refer to the right to peace, I have followed these discussions with a view to inform the work of the mandate including my forthcoming reports to the Council and Assembly.

As I see it, the Working Group has a task not only of reaffirming existing norms of international law, but of contributing to the progressive development of the law and mechanisms of implementation. This is the added value of the Declaration, for law is a living thing, and thus the declaration represents dynamic development – not duplication .

I particularly welcome the fact that this exercise of standard-setting was spearheaded by civil society and that there is a worldwide aspiration of individuals and peoples to live in peace. This democratic participation is in the spirit of the Charter, which begins with the words “We the People”, and -- as the Spanish Society for International Human Rights Law has demonstrated --  the voice of civil society does matter.

I have read  the comprehensive draft elaborated by the Advisory Committee and agree with many participants that the Declaration should be based on consensus and that it should be less theoretical and more pragmatic.  Moreover, some issues that are ancillary to the right to peace may be redrafted or deleted. The focus must remain on the beneficiaries of the right to peace – individuals, peoples, all of humanity.  Attention must also be given to the remedies available for violations of the right to peace, including the punishment by domestic courts and eventually by the International Criminal Court of those who engage in aggression and breaches of the peace.  Impunity for aggression remains a grave concern of all of humanity.  Moreover, the Declaration on the Right to Peace should be user-friendly and in itself justiciable, so that individuals and peoples can invoke its provisions.

In this context I refer to the statement (http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12997&LangID=E)
I issued on the occasion of the convening of this first session of the Working Group concerning the legal basis of the right to peace, which rests on the UN Charter itself, and on countless General Assembly Resolutions including Res. 2625, the Friendly Relations Resolution, and Res 3314 on the Prohibition of Aggression.  Legal basis is also provided by article 28 of the Universal Declaration of Human Rights, which stipulates that “everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”, and by the United Nations human rights treaties.  In my statement I gave concrete examples of many constitutive elements of the right to peace that are already justiciable, including the right to life, to health, to education, the right to conscientious objection to military service, to freedom of expression and peaceful  assembly, the prohibition of the recruitment of child soldiers and the prohibition of propaganda for war.

These rights are recognized in the International Covenant on Civil and Political Rights, the Covenant on Economic Social and Cultural Rights, the Convention against Torture, the Convention on the Rights of the Child and its Optional protocol on the prohibition of the involvement of Children in armed Conflict.  Moreover, I draw attention to the reality that individuals can claim their rights by engaging the individual complaints procedures of the Human Rights Committee and Committee against Torture, and soon of the Committee on Economic, Social and Cultural Rights, when the new Optional Protocol enters into force on 5 May 2013.  Petitions concerning children can be submitted to the Human Rights Committee under article 24, and at some later date to the Committee on the Rights of the Child, when its petitions procedure enters into force.  Individuals can also address complaints to the Special procedures mandate holders of the Human Rights Council.

Moreover, as was mentioned several times in this session of the Working Group, it is encouraging that some countries have specific provisions on peace in their Constitutions, and that there is pertinent case-law thereon.

Mr. President, codification and mechanisms do not sufficiently ensure the right to peace. What is crucial is to develop a true culture of peace.  This requires education for peace. Everyone – not only children – should be educated in compromise, cooperation, empathy, solidarity, compassion, restoration and reconciliation.  In short, we must learn respect for others and how to live in harmony, even if we agree to disagree.  Negotiation and mediation skills must be taught so as to prevent breaches of the peace and other forms of violence.  A philosophical paradigm change is necessary, so that we are not caught in the old mind-set, in the prevailing culture of violence, the logic of war, aggressive attitudes, practices of economic exploitation and cultural imperialism.    

We need not only a common vision, but also a roadmap to this culture of peace, a strategy to identify and remove obstacles, among which are the arms race, unilateralism, and the tendency to apply international law à la carte
Allow me now a few comments based on the discussions at this session. 

I think that it could be useful to add an article 1bis or a new article 2 containing definitions.
I would suggest recasting some of the language in terms of prevention.
I would also propose adding an article dealing specifically with children, in particular the prohibition of recruitment of child soldiers.

With regard to article 5 of the draft declaration, I should like to draw attention to General Comment 22 of the Human Rights Committee, adopted already in 1993.  which stipulates:  “Many individuals have claimed the right to refuse to perform military service on the basis that such right derives from their freedoms under article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service… the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief.”  This general comment has been confirmed in practice in the Committee’s case-law, including in the Views in cases 1321-1322/2004, in which the Committee held that article 18 had been violated, stating that “to compel a person to use lethal force, although such use would seriously conflict with the requirements of his conscience…falls within the ambit of article 18… The authors’ conviction and sentence accordingly amounts to a restriction of their ability to manifest their religion or belief.”

Inspired by article 29 of the Universal Declaration of Human Rights, I would also like to put emphasis on duties and obligations –not just on rights.  It is a civic duty for peoples and individuals to pro-actively demand from their democratically elected governments that they settle disputes by peaceful means, that they refrain from the threat or the use of force, that they engage in good faith disarmament, that national budgets be shifted away from military expenditures and toward the promotion of civil, political, economic, social and cultural rights.

In sum: The human right to peace as a collective and individual right already exists, since it logically derives from the UN Charter and other international treaties.  Most of the constituent elements of the right to peace are part and parcel of the UN human rights treaty system and have generated important jurisprudence.  Moreover, the Nuremberg and Tokyo tribunals established valid precedent in condemning the crime against peace.  In the not too distant future the International Criminal Court will have the opportunity to prosecute persons accused of having committed the crime of aggression. All countries truly committed to peace should ratify the Rome Statute. Let us not now quibble on the existence of the “right to peace” – it is, in fact, the core of the UN Charter. 

Personally, I am persuaded that step by step all will come to appreciate the added value of this Declaration and agree that the Human Rights Council is, at the very least, an appropriate forum to discuss these issues and to adopt a future-oriented and robust declaration on the right to peace.  Admittedly, this Council is not the only venue, but it is certainly a good venue – maybe more promising that other fora that continue to be blocked and that have hardly produced concrete results for decades.

Let me end by quoting the maxim of the ILO “si vis pacem, cole justitiam” – if you want peace, cultivate justice.
Indeed, if we work for social justice, we will remove many of the sources of conflict in our world.  Thus let us continue this dialogue, for we will learn from one another – and one partner may end up convincing the other and vice versa.  Let us persevere in this collective effort that will surely arrive at convergence.

Gutta cavat lapidem!

Muchas gracias,             Alfred de Zayas,  ie-internationalorder@ohchr.org  


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