United Nations Forum for the Transition
SI VIS PACEM PARA PACEM! If you want peace, prepare for peace! 平和を望むなら平和に備えよ
Declaration of the Right of Peoples to Peace
(UN Resolution 39/11, 12 November 1984)
Tokyo, Wednesday, 18 November 2009
To the UN High Commissioner for Human Rights
Mme Navanethem Pillay
Office of the UN High Commissioner for Human Rights
Palais des Nations
CH-1211 Geneva 10
Dear Mme Navanethem Pillay,
I am a peace historian and an activist, born in Hamburg in early 1944. I am writing to you (and to whom it may concern) to inquire about the procedure and conditions for filing a complaint against my Government, i.e. the Government of the Federal Republic of Germany, for violations of a basic universal human right, the right of all peoples to peace and (collective) security (see UN Res. 39/11 of 12 November 1984).
UN Res. 39/11 of 12 November 1984 affirms that "the principal aim of the United Nations is the maintenance of international peace and security." This no doubt is meant also to apply and be of concern to my country, Germany, which has in its 1949 Constitution affirmed its sincere intention and desire to "serve the peace of the world" (preamble), and aim at an effective and comprehensive system of collective security (German Constitution, Article 24). Germany, too, should, as UN Res. 39/11 states, take measures in accordance with its Constitution, to assure a “life without war,” to meet the “primary international prerequisite for the material well-being, development and progress of countries,” not only its own, and guarantee “the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations.” However, it appears that in the past twenty years in particular, Germany, followed in this respect by the other European nations, has outsourced security to the USA, which had and still has to bear a heavy burden on that account (and in addition acts mostly in its own national interest only). Instead of delegating security and executive powers to the UNSC, as stipulated in our Constitution, Germany has in fact, by not taking action, blocked the “establishment of a lasting peace on Earth,” which represents the “primary condition for the preservation of human civilization and the survival of mankind.” (Declaration on the Right of Peoples to Peace) Historically, already at the Hague Peace Conferences, 1899 and 1907, Germany blocked the development of a binding international legal order, against the majority of the great powers. Germany has failed to fulfill its “sacred duty” to serve the peace of the world.
Without going into all the details of our commitments and obligations under our Constitution and also the UN Charter at this point, I would like to point out that, human rights complaints concerning the Right of Peoples to Peace are bound to become relevant in the near future. Procedures within the parameters of the UN system will have to be provided to admit individual and civil society complaints, for example if and when UN members states have or will have agreed to a universal disarmament treaty under Article VI of the NPT as well as Article 26 of the UN Charter. The UN Charter is a blueprint for getting from “A” to “B”, i.e. from an armed to an unarmed peace. If and when this process is initiated, civil society will be called upon to exercise democratic control, to make sure governments will abide by their commitments under the adopted treaty for the regulation of armaments (i.e. general and comprehensive disarmament under effective international control); if necessary they will have to be able to complain to the Human Rights Commission, i.e. if a country is in violation of its commitments or prepares for war.
However, the Human Rights Commission presently has only 28 thematic procedures, although since 2000 twelve new thematic rapporteurs or working groups have been established, i.e. the Independent expert on structural adjustment policies and foreign debt; Special Rapporteur on human rights defenders (2000); the Special Rapporteur on the right to food (2000); the Special Rapporteur on adequate housing (2000); the Special Rapporteur on indigenous people (2001); the Working Group on People of African Descent (2002); the Special Rapporteur on physical and mental health (2002); the Special Rapporteur on trafficking in persons (2004); the Working Group on Use of Mercenaries (2005); the Independent expert on minority issues (2005); the Independent expert on solidarity (2005); the Special Rapporteur on terrorism (2005); and the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises (2005). It is necessary to establish a commission to deal with complaints such as I am/we are putting forward.
In this connection I would like to ask what would be the role of other individuals and/or NGOs backing my complaint, and how and if they can be recognized as co-plaintiffs. Presently the German branch of IALANA, the German branch of the Baha'i, the German branch of Amnesty International, the German branch of the Fellowship of Reconciliation, the Forum Justizgeschichte, and the German Women's Peace Network have been approached and are deliberating whether to support my human rights complaint.
What is required now, when steps are being taken in preparation for implementing Article VI of the NPT, is a working group that will deal with violations of the Peoples Right to Peace, disarmament accords, crimes against peace, and related issues. Under Article 1 (1) of the UN Charter, similar offenses and violations are addressed, and are taken up by the Human Rights Commission, e.g. in the International Convention against the Taking of Hostages; the measures relating to Nazi, Fascist and neo-Fascist activities and all other forms of totalitarian ideologies and practices based on racial intolerance, hatred and terror. Also addressed under Article 1 (1) of the UN Charter are the peaceful settlement of disputes between States, and the right of peoples to peace. [See Summary of Practice, Articles 1(1), 1(3), 1(4), 2(1), 2(2), 2(3) AND 2(5), at http://untreaty.un.org/cod/repertory/art1/english/rep_supp6_vol1-art1_e.pdf, p. 8] The universal Right of Peoples to Peace in particular can be taken as constituting a human rights issue.
As some authors have noted, “U.N. procedures for dealing with violations of human rights are in a process of change and will likely continue evolving for the next several years. This reform process presents the student of human rights with several difficult questions, such as: What are the current U.N. procedures for addressing violations of human rights? Does a human rights protection gap exist during this period of transition? How can NGOs and other interested members of civil society positively influence the formation of new U.N. procedures?” (David Weissbrodt, Fionnuala Ni Aoláin, Joan Fitzpatrick, and Frank Newman International Human Rights: Law, Policy, and Process (4th ed. 2006), Chapter 6: WHAT U.N. PROCEDURES ARE AVAILABLE FOR VIOLATIONS OF HUMAN RIGHTS?, online at http://www1.umn.edu/humanrts/intlhr2006/chapters/chapter6.html)
If general and complete disarmament becomes a reality, and a plan like the 1961 McCloy-Zorin Accords is implemented, violations of such an agreement or agreements will be reported by NGOs and non-state actors. The Federal Republic of Germany has a special responsibility, both historically and under its Constitution, to see that the provisions in its constitution are put into practice.
The German government is not at liberty to decide for itself whether it wants to serve the peace of the world or not. Rather, it is under obligation to implement its constitutional provisions to pave the way for creating an effective system of collective security and binding international jurisdiction, that would make disarmament and the solution of a whole range of global problems that require a supranational authority possible. It is neither natural nor desirable that, in the absence of an effective system of collective security, the United States of America, or any coalition of the willing, NATO or the Commonwealth of Independent States' collective security system or any other agency not operating directly under the United Nations and within the precincts of the UN security system, as it has been laid out in the UN Charter, should take on responsibilities for policing the world!
Since it is mandatory for Germany under its Constitution to "serve the peace of the world," agree to accept the compulsory jurisdiction of the ICJ and take steps toward the implementation of an effective system of collective security under the United Nations, its inactivity over the past 60 years to fulfill its obligation must be seen as an act of dolus indirectus. Germany could and should have been a bridge between East and West even during the Cold War. However, on the contrary, it seems that Germany, both its Eastern and Western manifestation, contributed to aggravating the East-West conflict. West-Germany in particular, by inaction both at the time of the Korean War and the time of the McCloy-Zorin Accords eleven years later contributed to the discords existing between the USA and the UdSSR. Only last year Germany has submitted to the compulsory jurisdiction of the ICJ, in spite of the fact that an obligation to do so has existed under Article 24 (3) since our Constitution went into effect in 1949.
Germany’s unwillingness to accept the compulsory jurisdiction or obligatory arbitration of an international court had been the main cause for the failure of the Hague Peace Conferences, which contributed to bringing about the "seminal catastrophe" of the First World War, as the German delegate to both Hague Peace conferences, Professor Philip Zorn, readily admitted right after the end of WWI. So far, Germany has issued no apologies either for its ill-advised and irresponsible policies at The Hague or the outbreak of the First World War. The results have been devastating and catastrophic: bloody revolutions in Europe and Asia and numerous wars, including World War II. Until this day no breakthrough has been achieved, because Germany is not implementing vital provisions in its Constitution that would lead to reciprocal action by the members of the UN, to bring about disarmament and an effective, comprehensive system of security under the United Nations.
Domestic legal instruments have been exhausted by the plaintiff(s)
Already in 1983 the plaintiff together with a group of supporters campaigned to get the German government to delay the decision to station new Pershing II and cruise missiles on German soil by demanding that this question be placed before the UN Security Council for deliberation, via Article 24 of the German Basic Law, which stipulates that Germany may "by legislation, transfer sovereign powers to international institutions" like the United Nations, no doubt as a way to "serve the peace of the world" and to abolish war. Germany has made a commitment in its Constitution that it "will consent to such limitations upon ... sovereign powers as will bring about and secure a peaceful and lasting order in Europe and among the nations of the world." It was not within the domain of the German parliament to decide on the issue of stationing new Pershing II and cruise missiles on German soil, since the UN Charter stipulates that questions concerning international peace and security are to be dealt with by the United Nations. This was a matter that Germany, under its Constitution, should have referred to the UNSC. Some of the responses to our campaign, by the German government and political parties, make interesting reading. However, in spite of our campaign, the government went ahead and voted in favor of stationing new Pershing II and cruise missiles on German soil, in violation of the above-mentioned binding commitment under international law as well as under our Constitution. As a consequence the plaintiff and the supporters of our campaign filed a complaint with the Constitutional Court in Karlsruhe, which, however, was rejected out of hand, and not even admitted for deliberation. However, we believe that the 1984 constitutional complaint, which was also published in book form (the full published text in German is available online at http://www.ne.jp/asahi/peace/unitednationsreform2007/Hausaufgaben_t+f.htm), is evidence, among others, that the domestic venues for addressing this issue have been exhausted. Following is the English translation (excerpt) from our 1984 constitutional complaint.
In the constitutional complaint I stated inter alia (true translation from the German):
(d) The Federal Republic’s voting performance [at the UN]
The ... [German] chancellor and former opposition leader, Dr. Helmut Kohl wrote in a letter to the ... chairman of the World Federalist German branch [i.e. the author of the complaint] on 6 May 1977:
It was always the concern of the free world, to develop the United Nations into an instrument for reducing tension, prevent conflict, and ending war – in short, an instrument of peace. We have, however, seen in recent years, and especially in the present time, that the Eastern Bloc and radical developing countries have turned the UN into a battle instrument designed to achieve aggressive interest as well. As long as this practice continues, I think the development of the United Nations to become a work for peace and even a world government (Weltregierung), which would be a blessing for all, is hardly conceivable.
However, the recent votes in the General Assembly have ... clearly demonstrated that the Federal Republic stood against the peaceful interests of the international community, especially in vital matters of defense, security and peace.
To give a few examples, it was the Federal Republic voted against the prohibition of the nuclear neutron bomb (Res. 36/92K of 9.12.81, result: 68 +, 14 -, abstentions 57), against the Declaration on the Prevention of Nuclear Catastrophe (Res. 36/100 of 9.12.81, result: 82 +, 19 - abst. 41), against a Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States (Res. 36/103 v . 9.12.81, result: 120 +, 22 - abst. 6) and against a rejection of the Use of New Discoveries, and Scientific and Technological Advances for Military Purposes (Res 37/77B v. 9.12.82, result: 114 +, 10 - abst. 17) voted. These were roughly the same majorities that voted also against the Soviet intervention in Afghanistan (or the American intervention in Grenada). [Apparently] The Federal Republic votes against these majorities in the General Assembly, when it comes to issues of peace and security. With that, however, the (current Chancellor’s) argument in the above-quoted letter has lost its validity.
Also, the abstentions of the Federal Republic regarding the resolution on measures to be taken against Nazi, Fascist and neo-Fascist activities and all other forms of totalitarian ideologies and practices based on racial intolerance, hatred and terror (Res. 35/200 of 15.12.80, result: 124 +, 0 – abst. 18) and the resolution on World-wide action for collecting signatures in support of measures to prevent nuclear war, curb the arms race and promote disarmament (Res. 36/92J v. 9.12.81, result: 78 +, 3 - abst. 56) is not liable to boost confidence in the peace policy of the Federal Government(s).
The Federal Republic and Federal Governments could not have demonstrated to the world public opinion their intentions more clearly.
The voting behavior of the Federal Republic must be seen as a clear admission to an aggressive 'peace and security policy'… The Federal Republic should … make every effort to bring about an overarching non-partisan consensus within the framework of the United Nations, in accordance with the will of the majority of the peace-loving international community.
The federal government, the German Bundestag (parliament), the Bundesrat (upper house) and the Federal President should not assume the exercise of a right (which turns out to be the equivalent of a veto power, because of the special political status of the Federal Republic in the East-West conflict), by which consciously and intentionally genuine peace and disarmament negotiations at the negotiating table at the World Security Council are prevented.
(e) The Human Rights
An essential basis for international law are the fundamental and human rights. This includes the prohibition of weapons of mass destruction, which derives from the agreements from the genocide convention of 1948 and the Fourth Convention from the year 1949 to protect the civilian population, from the Geneva Protocols of 1925, the Hague Regulations of 1907 and others.
Under Article 5 of the European Convention on Human Rights "Everyone has the right to liberty and security of person." With the deployment order of 22 Nov. 1983, however, international tensions have increased. The Universal Declaration of Human Rights of 10 December 1948 states similarly:
Everyone has the right to life, liberty and security of person. (Art. 3)
The right to life, liberty and security is also part of the International Covenant on Civil and Political Rights of 1966 (The human rights covenants of the United Nations), which the Federal Government has signed on 17 December 1973 (in force 23 March 1976).
Fundamental rights form today an essential part of the national constitutions.
Human rights and fundamental freedoms are also part of the Final Act of the Conference on Security and Cooperation [in Europe, CSCE], of 1 August 1975. It says inter alia:
The participating States recognize the universal significance of human rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and well-being necessary to ensure the development of friendly relations and co-operation among themselves as among all States. … They confirm the right of the individual to know and act upon his rights and duties in this field. … In the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. (Chapter VII)
Thus, the principles of the Universal Declaration of Human Rights are recognized as binding international law. This includes Article 28 of the Universal Declaration:
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
By this as well as Article 55 c) of the Charter of the United Nations the right of the individual state claiming separate, full national sovereignty (art. 2, para 7 of the Charter) has undergone a crucial limitation. Article 55 of the Charter states:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: ...
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
In Chapter VII of the CSCE Final Act, this idea has been confirmed and developed further.
Because of UN Resolution 1503 (XLVIII), which was adopted on 27 May 1970 by the Economic and Social Council of the United Nations, now also individual complaints about human rights violations are taken care of, by way of UN resolution 728F (XXVIII) of 30 July 1959 (UN-Doc. E/3290, p. 19) of the Human Rights Commission of the United Nations.
In accordance with Resolution 1503 (XLVIII), the Human Rights Commission can determine that in a country situations prevail, "which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms." The UN Secretary-General then presents a copy of the complaint to the government concerned.
As a result, the individual is not only the source and basis of any given domestic legal order, it is essentially 'subject'. In contrast, the only 'object' within the context and meaning of the state and society, however, is the preservation of peace, justice and freedom. The state has no right to violate [such] 'subjective' and/or 'objective' prerogatives. The state … does not have absolute power* … over the individual, as long as it does not violate principles of humanity, human rights and fundamental freedoms [etc.] … Conversely, the individual has full and unrestricted sovereignty vis-à-vis the state, should it violate these imperatives. The responsibility of the individual in the realization of [an international order of] peace is also reflected in the Preamble of the Charter of the United Nations, which states:
WE THE PEOPLES (not the governments!) OF THE UNITED NATIONS
DETERMINED [and authorized under the Charter]
... to create conditions
... to unite our forces,
... accept Principles and procedures
... and employ international institutions,
in order to "to serve the peace of the world" [Preamble, German constitution], in other words, to adopt such measures, and exercise such rights and obligations, as are necessary for "the creation of conditions of stability and well-being ... [so that] peaceful and friendly relations among nations" can prevail. (Art. 55 UN Charter) The state does not have the right to incite the hearts [of people], by continually preparing for war."
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. (Art. 20, International Covenant on Civil and Political Rights)
Under Article 25 GG [German constitution] the individual citizen has been endowed with a sovereignty of his own, which takes precedence over national sovereignty, to exercise his rights and obligations regarding the preservation of peace, and in order not to become himself guilty of "crimes against peace," [i.e.] within the framework of the existing international law and the constitutional order, [the individual is] to ensure that the international law [relating to the maintenance and permanent establishment of an order] of peace is not broken and basic human and fundamental rights are not violated. In case there should be any doubt, individual human rights and fundamental freedoms take precedence over the supposed sovereign right of belligerency of the state. The sovereign state has positively been relieved of his right of belligerency, to the extent that the individual citizen has [already] staked his claim, through the application of the [binding] rules of international law, human rights and fundamental freedoms.
It is, therefore, duty-bound to delegate the powers concerning its security and that of its citizens to the Security Council, and actively, [inter alia] in cooperation with the social forces, ensure the settlement of international disputes by peaceful means.
END OF QUOTATION
(From: Klaus Schlichtmann, Hausaufgaben. Eine Verfassungsbeschwerde gegen den Stationierungsbeschluss vom 22. November 1983 (Homework. A constitutional complaint against the [German parliament’s] decision of 22 November 1983 to station [American Pershing II and cruise missiles in West-Germany], Kiel 1984, pp. 124-131)
It is a fact generally accepted by objective historians that the Hague Peace Conferences failed in its most vital objectives, disarmament and obligatory arbitration (I.e. compulsory jurisdiction), primarily because of Germany's objections. Since disarmament was considered feasible only if the institution of war was replaced by a legal institution, i.e. an effective international court with binding jurisdiction, and since the vote on the issue of binding jurisdiction of the Court created in 1899 had to be unanimous, Germany's opposition, which was seconded by only a few countries, among them Austria-Hungary and Turkey, was the main reason for the failure of the project. While the USA tried desperately at the Second Hague Peace Conference in 1907 to push through a majority vote on the issue, at the Third Hague Peace Conference planned for 1914 it was expected that a majority vote would have been adopted. In addition, the question of an international executive, which had not been an issue in 1899 and 1907, was to be deliberated upon at the 1914 conference—something those opposed would not permit and had taken preparations to put a stop to.
Respected Madame Pillay! I am going to put forward a detailed complaint by March next year, which I believe is the deadline for complaints to be dealt with in the fall of 2010. (Please inform me if this is not the case, and another timetable or schedule is possible or should be attended to.)
I believe this is a matter of the utmost urgency, considering that the US President, Mr. Barack Obama, has in his September speech before the UNGA this year, stated that he believed the next twelve months would be decisive for world peace and disarmament, when we may see either the failure or the success regarding the implementation of the NPT, especially its Article VI. In view of these facts, there must be a way to convince the German government and compel the German government to take the steps lined out in the UN Charter and in our Constitution to abandon its blockade and take measures to move toward implementing the UN security system that would oversee universal disarmament. I hope that the German government will take action, not in accordance with its short-term national interest but in the interest of the international community.
With best regards,
Dr. Klaus Schlichtmann
* The original German says 'sovereignty'.