NOVEMBER 28, 2022
BY: ALFRED DE ZAYAS
The United Nations Charter is our only “rules based international order”, akin to a world constitution and further developed through international treaties such as the Vienna Convention on the Law of Treaties, the International Covenant on Civil and Political Rights, the International Covenant on Econonmic, Social and Cultural Rights, rulings and advisory opinions of the International Court of Justice, Security Council and General Assembly Resolutions including 2131, 2625, 3314 and 39/11.
The Priorities of the United Nations are peace, development and human rights. Most importantly, the world community must demand peace and condemn propaganda for war, which is already prohibited in article 20 of the International Covenant on Civil and Political Rights.
Art. 2(3) of the UN Charter already obliges all States to settle disputes by peaceful means. This obligation to negotiate means good faith dialogue with the goal to reach a compromise, a quid pro quo. There is no right to intransigence in the UN Charter. If one party refuses to talk, it is violating article 2(3) and actually provoking the other to the use of force. Moreover, this constitutes a potential threat to international peace and security for purposes of article 39 of the UN Charter. It is bad faith in contravention of article 26 of the Vienna Convention on the Law of Treaties.
Similarly, once an armed conflict has broken out, the obligation to negotiate in good faith persists. The refusal to negotiate peace, the deliberate prolongation of a war, expecting victory or unconditional surrender is obsolete in the nuclear world, incompatible with the UN Charter and constitutes both a crime against peace and a crime against humanity.
Peoples want peace. It is their unwise governments that stumble into war. It is up to us to demand from our democratically elected leaders that they consult the population on issues of peace and war, on issues of military budgets that take away the right to development and make it nearly impossible to achieve the sustainable development goals.
We rely on GA Resolution 60/1, paragraph 135 of which stipulates “that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. We also reaffirm that while democracies share common features, there is no single model of democracy, that it does not belong to any country or region, and reaffirm the necessity of due respect for sovereignty and the right of self-determination.” Attempting to export one’s model of democracy constitutes a violation of the UN principles of the sovereign equality of states and the right of self determination of peoples.
In my function as Independent Expert on International Order I submitted to the UN Human Rights Council “Principles of International Order “ reprinted in my 2021 book “Building a just World Order”. Principle 1 reads in part
“The United Nations Charter commits all States to promoting Peace with Justice. The Preamble and articles 1 and 2 of the Charter stipulate that the principal goal of the Organization is the promotion and maintenance of peace. This entails the prevention of local, regional and international conflict, and in case of armed conflict, the deployment of effective measures aimed at peace-making, reconstruction and reconciliation. The production and stockpiling of weapons of mass destruction constitutes a continuing threat against peace. Hence, it is necessary that States negotiate in good faith for the early conclusion of a universal treaty on general and complete disarmament under effective international control. … The motto of the International Labour Organization deserves being recognized as the universal motto for our time: si vis pacem, cole justitiam (if you want peace, cultivate justice). Moreover, peace must be recognized an enabling right, a pre-condition to the enjoyment of civil, cultural, economic, political and social rights.”
Principle 19 provides in part that “States must refrain from interfering in matters within the internal jurisdiction of another State. No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Unilateral coercive measures are incompatible with the United Nations Charter. Only the Security Council can impose sanctions under Chapter VII of the Charter. Therefore, States shall refrain from imposing unilateral coercive measures, sanctions and financial blockades on other countries. When unilateral coercive measures cause widespread hunger and death, they may amount to crimes against humanity under article 7 of the Statute of the International Criminal Court.
Finally, by way of conclusion, it must be stressed that the prohibition of the threat or the use of force contained in article 2(4) of the UN Charter is jus cogens and that the breach thereof constitutes a violation of articles 5 and 7 of the Statute of Rome. It is the preeminent function of the UN Security Council, General Assembly, Human Rights Council and Office of the High Commissioner for Human Rights to get their priorities right and to work for peace and reconciliation.
Alfred de Zayas is a law professor at the Geneva School of Diplomacy and served as a UN Independent Expert on International Order 2012-18. He is the author of ten books including “Building a Just World Order” Clarity Press, 2021.