Dr. Joyce, a British attorney and economist, is a consultant to the Human Rights Division of the United Nations in Geneva, Switzerland.
This article appeared in the Christian Century February 24, 1982, p. 202. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.
What do human rights mean if millions of human beings can be reduced to mathematical coefficients on nuclear targets? The right to peace becomes more challenging as nuclear weapons become more immoral and more savage.
Human rights have recently been extended far beyond their earlier connotation as duties “owed” to individuals by a national government or, at least, by the community. Such rights are normally enforceable if and when they are violated by authority or by other individuals. In short, a human right is a legally enforceable claim.
International lawyers, however, are now debating whether there exists a so-called “third generation” of human rights. This idea was recently introduced by Karel Vasak, former director of the Institute of Human Rights at Strasbourg. Arguing that “human rights” is a constantly developing concept, Vasak cites civil and political rights as the first generation in this development; economic, social and cultural rights as the second; and now a third generation under the generic heading of “rights to solidarity.” Within this category he includes the right to development, to environment, to the ownership of the common heritage of humankind (i.e., the ocean floor), the right to communication, and to peace.
But other human rights specialists, such as A. H. Robertson, formerly director of human rights for the Council of Europe, have argued that the “rights to solidarity” should not be characterized as human rights at all. Robertson advances two reasons for this position: human rights apply to the individual, whereas the rights to solidarity are collective; and human rights can be secured by law, but this is not the case with the new rights.
Another participant in this debate is Carl Aage Nørgaard of the University of Arhus, a Danish member of the European Commission of Human Rights. In an unpublished statement, Dr. Nørgaard sums up the present situation in a very interesting way:
It is generally agreed that the concept of “Human Rights” is a developing one. This has often been stressed by the European Commission and Court of Human Rights when applying the rules of the European Convention regarding civil and political rights. This involves that new aspects of life, new situations or conflicts, which were not and could not be foreseen when the Convention was drafted, should be included in the existing articles of the Convention by interpretation, which means that the rules will be clarified and developed. This is, however, a usual legal process known by all judicial organs applying the law.
Nørgaard concludes that
in spite of the fact that the traditional concept of Human Rights has certain clear characteristics, it could be argued that the concept ought to be generally expanded to include the “new rights” in question, because they are as important and fundamental as the traditional Human Rights, and the need for promotion and understanding of these rights is of an overwhelming importance for mankind.
But Robert Pelloux, professor emeritus of the University of Lyons, takes a more pessimistic view, arguing that the “new” rights are not “true” rights. He warns that by adding them to the well-publicized list of “fundamental rights and freedoms” which was accepted as public world law in the Universal Declaration of 1948 and its subsequent Conventions, we risk diluting the “true” rights and place them at the mercy of changing policy decisions.
As this debate proceeds, some specialists in human rights law have suggested that it might be useful to rethink the whole process of innovation that the United Nations system constantly presents to us. In the light of the vast economic and technological changes that the UN has already contributed to the global system of what Vasak calls “solidarity,” it is now possible to classify the basic human standards into three broad categories: rights (individual) needs (collective) and uses (world law).
Each of these categories has its own potential legal order; e.g., the 1948 Declaration and subsequent Covenants; the New International Economic Order (NIEO) and various General Assembly resolutions on the rights and duties of states; and the Law of the Sea Convention, covering, among other things, “the right of peaceful passage through international straits.” Although they overlap and are all termed “rights,” the international institutions and processes for implementing them require that they receive separate consideration on their own merits. That examination cannot be pursued further here; but, if such a division of rights is valid, then the right to peace is obviously a collective, albeit unenforceable, right within the category of human needs. Could there be a greater human need today than peace?
The collective right to peace demands such a basic approach -- in fact and law -- that we can no longer afford to regard it merely as a sentimental concept or to confine it to an intellectual category of human rights. After all, the moral and legal rule established by the UN is itself a “peace” system. This global order, is founded on the opening principles set out in the 1945 Charter:
To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and. . .
To promote social progress and better standards of life in larger freedom,
AND FOR THESE ENDS
To practice tolerance and live together in peace with one another as good neighbors. . . .
But since at least 1949, when NATO was created, there has existed a parallel system based on entirely different standards. This is a militant regime operating on a set of principles which, to be frank, represents the institutionalization of violence. It is, in short, the war system. Thus, growing up side by side within our lifetime, there are two rival orders, each claiming the loyalty and dedication of humankind. The UN world order is based on human rights and the toleration of national, ideological, cultural and social differences. The rival “defense” alliances seek to eliminate those very differences by using military techniques based on modern weaponry.
This might seem to be a far too sophisticated way of looking at today’s global confrontations. But these are the facts of our time, even though they are often simplified in captions like East/West, North/South, rich/poor. These conflicts are well publicized in the news media of all countries and are reasonably understood by most people. Yet the basic war/peace confrontation has been given so little attention that its position within the international law of human rights has hardly been grasped by the general public or even by political leaders.
The moral and legal implications of this dilemma are too startling to be faced openly in national policies. This is why we ignore or repress them and talk instead about deterrence. But we fail to realize that nuclear deterrence is a freak doctrine that has put an end to what was once called national defense. Consequently, political leaders and military men continue to advocate these new weapons of mass destruction without regard to their incompatibility with the international law of human rights, let alone the norms of civilized life on this planet. Worse still, until recently these weapons have been accepted by public opinion as legitimate and essential means of defense. From time to time, however, individuals like Nobel Peace Prize laureate and unaligned UN spokesman Sean MacBride have condemned the use of nuclear and other weapons of mass destruction as an “international crime.” Yet little study has been done to define the nature of the crime or to identify criminal responsibility within the terms of the Genocide Convention.
In light of the human rights standards -- rights that have received almost unanimous acceptance from the UN member states -- it is becoming obvious to the average person that planning a nuclear war against a neighboring country is a horrendous crime against all humanity. The question is one I posed in my book The War Machine: “Exactly what human values, . . . what national interests, are worth defending with weapons of genocidal destruction? Where are human rights, when millions of human beings are reduced to mathematical coefficients on nuclear targets?”
This protest of conscience is not mere rhetoric. The daily speeches and writings of admirals and generals and defense ministers overlook one essential thing the Convention on the Prevention and Punishment of Genocide is still world law. It is specific and was intended to be specific. It had its birth in the Nuremburg principles by which the criminals of World War II were judged and condemned. But the Convention has also become a net for catching the criminals who plan a third world war. Its language is precise. I need only cite part of Articles II and III (my italics):
Article II: In the present Convention, genocide means any of the acts, committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group. . . .
Article III: The following acts shall be punishable:
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide:
There are no reciprocity clauses in the Convention, nor are there theories of self-defense or immunity embedded in it. The crime is absolute and definable. Nuclear weapons as means of mass destruction, it could be argued, might plausibly be neutral in themselves. But when they are used, or intended to be used, to destroy a “national group,” they become the crime of genocide. The two most vital terms in the Convention -- which is now international law, even for countries that have not yet ratified it -- are the phrases “with intent to destroy” and “as such.” What happens if we have the “intent to destroy” the Soviet Union as a national group “as such”? The crime of genocide, a term which has been bantered about for 30 years, has suddenly become recognized as an act of national policy that is condemned by the common will of humankind.
But there has recently arisen a corollary of this situation. The unilateral repudiation of using nuclear weapons against the Russians or any other national group is a valid political policy sustained by moral law and upheld by international law as well. In other words, the Genocide Convention has given the campaigns for unilateral and absolute disarmament a basis in both public morality and human rights law. The fast-growing peace movements in Britain, the Netherlands, Germany, Scandinavia and elsewhere have assumed a legal sanction in human rights law.
This is, as I say, a new legal situation which neither politicians nor average citizens fully understand. The right to peace becomes more challenging as nuclear weapons become more immoral and more savage. It is not surprising that growing numbers of perceptive people are realizing this and voicing their opposition. Kenneth Greet, president of the British Methodist Conference, has addressed the Methodist community and called support for nuclear weapons a sin. The Netherlands Inter-Church Council, Pax Christi and numerous other religious movements are totally opposed to nuclear weapons and repudiate their use by their own governments, irrespective of what other governments do. But where are the lawyers’ organizations in this great crusade?
The next stage in our pilgrimage is not only to exorcise the mortal sin of nuclear genocide, but to promote the nascent right to peace both as a human right and as a moral imperative to ensure humanity’s survival.