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Peace through Law: Hymn for Humanity

Updated: Mar 19, 2022

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake.

The poem from Rabindranath Tagore's Gitanjali, which is quoted above, was composed and published approximately 120 years ago. Tagore's 1913 Nobel Prize citation includes a reference to Gitanjali [meaning "song offerings"]. Tagore translated several of his Bengali writings, including this one, into English, greatly simplifying them in the process. The poet compares 'reason' or logical thinking to a 'clear stream' in the seventh line. 'Dead habits' or superstitious beliefs to a 'dreary desert' in the next line. He wishes for the stream of reason to remain unobstructed by the desert of prejudices. In sum, rational reasoning should be used to monitor people's thoughts, not superstition; rationality should take precedence over outdated, unfounded beliefs. The poet addresses God as 'Father' in the poem's concluding phrase. He requests that he awaken his country to such a 'heaven of liberty' where the aforementioned requirements are met. To be precise, the poet prays to the Almighty (my Father) to rise or awaken his country to such heights that true freedom can flourish (heaven of freedom). In turn, he is pleading with God to rouse his nation from the darkness of ignorance, bigotry, divisiveness, and all other vices.

International law, according to Hersch Lauterpacht, should be functionally oriented toward both the establishment of international peace and the safeguarding of fundamental human rights. In consonance, it is noted, "He who wishes to approach the goal of world peace in a realistic way must take this problem quite soberly, as one of a slow and steady perfection of the international order," writes Hans Kelsen, author of Peace Through Law, reminding us that the pursuit of peace requires patience and commitment to international norms and legal institutions, such as international criminal tribunals.

Later, Grenville Clark and Lois B. Sohn worked for three decades on "World Peace Through World Law," a plan that included the establishment of a World Conciliation Board, a World Equity Tribunal, compulsory jurisdiction for the International Court of Justice, the transfer of primary responsibility for maintaining peace from the Security Council to the General Assembly, and world disarmament enforced by regional courts. Several of these issues, such as Security Council reform, the significance of conciliation in international law, and the new Treaty on the Prohibition of Nuclear Weapons, are currently being debated again. Some argue that the division of international law into specialised subfields like trade law, human rights, and so on has led to a loss of focus on broader, shared goals like peace, in favour of developing specific technical skills within each sector. To the degree that contemporary international law addressed the subject of peace, it concentrated on peace treaties and the roles of key institutions such as the United Nations and regional entities. One of the major challenges we confront in expressing peace as the fundamental objective that international law serves to promote is the lack of a universally acknowledged definition among the international community.

There are two aspects of peace in theory. The first is negative peace, which refers to a situation in which there is no war or armed conflict. The majority of peace research has concentrated on this category, with studies examining how to prevent war, end war, and transition from war, among other topics. Article 2(4) of the UN Charter states: "Members should refrain in their international relations from threatening or using force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the United Nations' Purposes." It's worth noting that while the UN Charter prohibits the use of force, it does so with two exceptions: self-defense under Article 51 and authorisation by the UN Security Council under Chapter VII. The current system is one of actual peace, with exceptions, rather than principled peace, which is absolute and allows no exceptions. Indeed, much of the literature focuses on these exceptions, as well as the challenges posed by increased humanitarian intervention, responsibility to protect (R2P) actions, and the recent use of military force against non-state actors where host states are "unable or unwilling" to address terrorist threats, all of which are fraught with legal and legitimacy issues. The United Nations requires states to be "peace loving" in order to join; additionally, Article 2(3) declares that states have a commitment to settle conflicts through peaceful methods, and Article 33 establishes a process in which governments seek nonviolent dispute resolution first. This is an often-overlooked section of the UN Charter.

Positive peace refers to state-to-state collaboration, social justice, respect for human rights, especially equality and nondiscrimination, and the removal of structural violence that creates inequality, poverty, and exclusion. This was championed by Johan Galtung, but it was eventually linked to communism or utopianism, therefore peace studies shifted back to looking at negative peace. It might be claimed that positive peace policies are necessary. Peace has both inter- and intra-state components, according to Article 55 of the UN Charter, which emphasises the importance of institutions in promoting development and human rights as preconditions for peace. This relates to Kant's concept of the triangle of mutual democracies, development, and cooperation. FAO, IFAD, UNESCO, WHO, ILO, World Bank, IMF, WTO DSM, UN Climate Change Regime and UN Environment Programme, UN Oceans, UN human rights committees, and UN programmes addressing sustainable development and poverty reduction are all recognised for their contributions. The question is how much the decline of democracies around the world, as well as the rise of authoritarianism, affects the positive peace vision. The normative evolution of peace is currently undergoing a resurgence in international law; it began with the idea of "peaceful coexistence" and has more recently been formulated as a "right to peace." Both notions have been included in recent work; so, I will compare and contrast Russia and China's Joint Declaration on the Promotion of International Law with the UN General Assembly's Third Committee's Declaration on the Right to Peace, which was adopted in November 2016.

The concept of a natural right to peaceful cohabitation was articulated by international law theorists such as Grotius, Pufendorf, and Vattel, and it influenced Kant's vision of eternal global peace brought about by a world federation of republics that renounced war. During the decolonization process, peaceful cohabitation was progressively cultivated. In the Sino-Indian Agreement of April 29, 1954, the following Five Principles of Peaceful Coexistence were identified: (1) Mutual Respect for Territorial Integrity and Sovereignty, (2) Non-Aggression, (3) Non-Interference in Internal Affairs, (4) Equality and Mutual Benefit, and (5) Peaceful Coexistence itself. At the 1959 Asian-African Conference, the ideas of peaceful cohabitation were eventually enshrined in the Bandung Declaration on the Promotion of World Peace and Cooperation. Peaceful coexistence is more often associated with negative peace than positive peace, and its components have been incorporated into the United Nations Charter (Article 2) and the 1970 United Nations Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, both of which are now considered customary international law.

The Declaration on the Right to Peace

The campaign to recognise a "right to peace" began with its classification as a solidarity right, similar to the right to development, and was endorsed by the UN General Assembly in a number of resolutions dating back to the 1978 Declaration on the Preparation of Societies for Life in Peace. NGOs' renewed engagement throughout the years resulted in the adoption of the Declaration of the Right to Peace by the UN General Assembly's Third Committee in 2016. The Declaration begins with a long preamble that discusses both the negative and good aspects of peace. It relates to the ideals of nonintervention, collaboration, equal rights and self-determination of peoples, and sovereign equality, as well as the prohibition of the threat or use of force against any state's territorial integrity or political independence. It also condemns terrorism and states that "peace and security, development, and human rights are the pillars of the United Nations system and the foundations for collective security and well-being, and that development, peace and security, and human rights are interconnected and mutually reinforcing." "Recognizing that peace is not simply the absence of conflict, but also demands a constructive, dynamic participation process where discussion is fostered and problems are resolved in a spirit of mutual understanding and collaboration, and economical progress is ensured," it says.

"[r]ecalling that the recognition of the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world, and recognising that peace is promoted through the full enjoyment of all inalienable rights derived from the inherent dignity of all human beings," the Preamble appears to adopt a liberal perspective.

The Declaration's operative paragraphs are brief. "Everyone has the right to enjoy peace in which all human rights are encouraged and protected and progress is fully achieved," says Article 1. Although the right's formulation indicates a negative right that the state must respect, it might also be argued that it implies a positive obligation on the state to guarantee that the person benefits from the state of peace. As a result, tranquilly, like security, can be considered a form of meta-right that allows a person to exercise human rights. Indeed, Hilary Charlesworth and Christine Chinkin proposed that the right to peace should be a jus cogens right in the ideal world.

The emphasis on the individual as the right's topic could be regarded as a probable liberalism tendency. Peace is viewed from this perspective as a fundamental foundation that allows a person to live a dignified life while pursuing his or her goals. A statist perspective, on the other hand, would emphasise the state's active role in pursuing peace as a common or communitarian goal (and growth) that the individual should support. Article 2 of the Declaration of the Right to Peace entrusts nations with the primary responsibility for providing the institutional framework required for individual enjoyment of both internal and exterior peace:

As a method of building peace within and between societies, states should respect, implement, and promote equality and non-discrimination, justice, and the rule of law, as well as provide freedom from fear and want.

This emphasises the need of bolstering important elements of effective peace strategies, as well as the identification of constituent rights that also apply to the meta-right security: equality, freedom from fear, and freedom from want. According to a liberal understanding, this entails legislative actions and the use of an independent court to safeguard society's marginalised people. The statist viewpoint emphasises the significance of upholding the rule of law as a way of ensuring peace; rather than division of powers, state action is seen as the mechanism for achieving peace on behalf of collective society.

Rather than identifying specific remedies, Article 3 of the Declaration recognises a transnational framework for broad institutional enforcement of peace: the United Nations, specialised agencies, international, regional, national, and local organisations, and civil society are to support and assist the Declaration's implementation. Universalists would argue that nonstate actors play an important role in ensuring peace (for example, Google's protection of "cyberpeace"); this is essentially expanding on Article 55 of the UN Charter, which emphasises the role of specialised agencies in recognising economic and social welfare as preconditions for peace. According to statist interpretations, this means that international organisations and civil society have a responsibility to assist the state in its pursuit of peace.

Article 4 identifies a transnational form of institutional peace promotion:

Tolerance, dialogue, cooperation, and solidarity among all human beings must be strengthened through international and national institutions of peace education.

This reflects a recognition that achieving peace necessitates a cultural shift inside societies in order to foster trust, empathy, and nonviolent conflict resolution abilities. As a means of bolstering communitarian policies, statist governments would emphasise the principles of collaboration and solidarity.

It's worth noting that Article 5 of the Declaration states that its provisions must be interpreted in conformity with the United Nations Charter. As a result, it's assumed that the UN Charter's exceptions to the prohibition on the use of force, such as self-defense under Article 51 and permission by the UN Security Council under Chapter VII, would continue to take precedence. As a result, rather than a declaration of principled peace, this is a declaration of realistic peace. Finally, we are seeing changes in international law; third-generation rights, such as the right to peace, are being championed, and diplomats and international lawyers are talking about peaceful cohabitation again. I believe that legal education should be refocused on the importance of peace as a primary goal of international law, as well as how to improve the institutions that have been established to promote constructive peace and nonviolent conflict resolution. Without a question, we confront significant obstacles, but it is critical that we maintain our focus on the constructive progress of international law. Perhaps the best way to conclude is to remember Ulysses by Alfred, Lord Tennyson.

Tho' much is taken, much abides; and tho'

We are not now that strength which in old days

Moved earth and heaven, that which we are, we are;

One equal temper of heroic hearts,

Made weak by time and fate, but strong in will

To strive, to seek, to find, and not to yield.


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