Looking at the United Nations through The Prism of National Peace Law.

In the United Nations and the International Court of Justice (ICJ), peace law is slowly emerging, just as military law emerged centuries ago. In this United Nations Decade of International Law, following the 1998 celebration of the Fiftieth Anniversary of the Universal Declaration of Human Rights, people all over the world are looking back to the founding of the United Nations, and forward to its operation in the twenty-first century. This is a propitious moment to consider methods of enforcing human rights by actions of UN organs and agencies and World Court opinions, and by initiatives at the local and national levels. And it is the moment to consider the emergence and definition of peace law.

Peace law starts with individuals, their organizations and Governments. Like all basic law, it emerged from horrors and necessities: the Great Depression, the Holocaust, the Second World War and the atomic age. Albert Einstein warned that the atomic bomb has changed everything except our way of thinking, and thus we drift toward unparalleled disaster. Peace law is part of the new way of thinking and acting to stem this drift. It breaks through the traditional separation of law into a State's domestic law, international law and the law in transnational agreements. It requires all of us - voters, lawyers, litigants, non-governmental organizations (NGOs), transnational corporations, Governments and armies - to realize that there is a cohesive body of law at the center of all law, which must be included in consideration of every issue.

Peace law is an enormous, magnificent tapestry. At its centre is the UN Charter, in which each nation pledged to settle its international disputes by peaceful means and established the United Nations to work unceasingly toward this goal through its organs and agencies. At the very core of peace law are the Nuremberg principles, setting forth the duty of each Government and each individual not to commit crimes against peace, crimes against humanity or war crimes, and not to be complicit in their commission. The memories of Nuremberg, Dresden, Bataan, Soweto, Hiroshima and other tragic regions have led Governments to sign more international and regional treaties on non-proliferation of nuclear weapons, against other specific kinds of weapons, and for regional peace and human rights. These actions and resolutions by the General Assembly, the Security Council, the Economic and Social Council, and other organs and agencies of the United Nations comprise the continuously expanding central portion of peace law. It is found in the peaceful customs of ethnic, racial, cultural, religious and national groups, and has traditionally been especially close to the minds and hearts of women who, with their children, are mostly the victims of its violation. It encompasses portions of existing law: international, human rights, civil rights, constitutional, criminal, property, contracts, conflict of laws, environmental, administrative, commercial, tort, legislative, immigration, labour, military, municipal and tax.

The almost 200 smaller areas in the peace law tapestry dude the peace law of each State in the United Nations: laws passed by governmental bodies from cities to nation States. For example, United States peace law includes the First Amendment protection of the fight to be a conscientious objector to war, the requirement that only Congress can declare war, the excess profit tax on war production in the Second World War, the War Powers Act, statutes enforcing neutrality, and Executive Order 13107. Peace law includes laws at the city level, establishing nuclear-free zones and incorporating Articles 55 and 56 of the UN Charter on human rights into dry ordinances. Peace law inspires actions for peace and protects peaceful activists who fed responsible. It rejects much traditional military law and ideology.

The UN system of governance relies in part on agencies created by UN bodies requiring States to make periodic reports on compliance with treaties, conduct dialogues, and report back to the major UN organs. These reports lead to action. While the United States media emphasize changes in the law resulting from litigation and acts of Congress, in fact, reports lead to action in the United States system as well. On the governmental side, the Commissioner of Immigration and Naturalization Service reports to the Department of Justice, which then reports to the President who reports to the Congress, suggesting new laws or changes in existing laws. The Hate Crimes Reporting Act now calls for collection of statistics from each State. The Department of Health reports on the number of people with HIV to plan scientific studies. On the economic side, the free market system relies absolutely on accurate minute-by-minute reports on stock sales from the New York Stock Exchange and other stock exchanges so that investors can make decisions.

These examples in the United States have parallels in other countries. Most recently, reports on deaths of Spaniards in Chile under Pinochet led to litigation, and these reports led to the collection of additional reports on Pinochet's actions against other targeted groups. We are each trained in the governing system in our own State and take pride in the enforcement of our national laws. So it comes as something of a surprise to many trained in the United States' legal system to realize that such system of enforcing hard-won human rights through litigation and legislation is no more effective than the UN system through reporting and resolutions.

The United States Federal Government did not start enforcing the Civil War's civil rights amendments of the 1860s until 1954, when the Supreme Court issued its opinion in Brown v. Board of Education, or even later when the Civil Rights Acts were passed by Congress in the 1960s.

The adoption of the Woman's Suffrage Amendment in 1920 was just the beginning of a long effort to achieve equal treatment of women, including the collection of statistics and making reports demanding affirmative action by Federal and State Governments and private employers.

Now the Meiklejohn Civil Liberties Institute in Berkeley, like a few NGOs, has initiated a project to provide information for United States Government reports under the three ratified treaties. In preparing their first report to the United Nations Human Rights Committee in 1994, law school interns at the Meiklejohn Institute used information from other NGOs and the media and from obscure government reports to prepare Issue Sheets on violations and enforcement of many specific articles in the International Covenant on Civil and Political Rights.

Both United States and UN officials indicated that the materials were very useful in supplementing the official government report. Now the Institute is preparing Issue Sheets for reports under the other two treaties and for the second United States report to the Human Rights Committee. In 1996, the National Lawyers Guild convinced the State Bar of California to support legislation to collect information at the State level for reporting under the three ratified treaties. A similar proposal is pending in the City of Berkeley to implement the new Executive Order at the city level.

As we approach the year 2000, people in the United States, from City Councils to the White House, are moving toward implementation of the peace law and human rights enunciated in the UN Charter, treaties and World Court opinions.

Case in Point: The United States Presidential Executive Order

On 10 December 1998, the Fiftieth Anniversary of the Universal Declaration of Human Rights, United States President Bill Clinton issued Executive Order 13107 on the implementation of human rights treaties ratified by the United States: the International Covenant on Civil and Political Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; and the Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment. For people in the United States, this Executive Order is in the tradition of President Franklin D. Roosevelt's Executive Order 8802, issued in 1941 to establish the first Fair Employment Practices Committee.

Executive Order 13107 established an Inter-agency Working Group to:

* inform all federal agencies about the commitments in the three treaties and their responsibility to select someone to receive complaints and collect information on violations of treaty rights;

* make periodic reports to United Nations committees;

* provide information on the treaties and their reporting requirements to all American States, possessions and Native American reservations;

* study all legislation proposed by the President to ensure that they do not violate these treaties;

* reconsider each year whether to remove some reservations, understandings and declarations attached to the treaties on ratification.

As a result of Executive Order 13107, two Bay Area coalitions, in the State of California, are transforming themselves in 1999 into Universal Declaration on Human Rights 50th-Plus committees, to join the peoples of all nations in demanding that Governments publicize the United Nations treaty law, report on enforcement and its failures, and step up education at all levels of government and among transnationals and non-governmental organizations. For the United States, this marks a tremendous step forward for human rights and peace law.

The Question of Legality of Nuclear Weapons

Peace law is rooted in the opinions of the International Court of Justice (IGJ), the judicial organ of the United Nations, which hears cases involving violations of peace law and writes opinions in which it digests existing peace law and elaborates on the historic contributions from every region.

One of the strongest tenets in peace law today is found in the 1996 decision of the World Court on the Legality of the Threat or Use of Nuclear Weapons, that is: "There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control" (105(2)F).

The need for people in the United States to think about this opinion is clear from one stark figure: the Government is spending $67.4 million per day on nuclear weapons, including their maintenance, improvement, storage, handling, transportation and testing, experimenting on new forms of tests and controlling the existing arsenal.

In 1996, no major newspaper in the Bay Area in San Francisco or in other United States cities mentioned this advisory opinion. This is one lasting result of the cold war in the United States: a quiet shift in coverage by the media away from the activities of UN organs and the decisions of the Court.

One Bay Area legal newspaper rejected a short article on the Opinion and told the author that it did not intend to publish anything on that subject. And in December 1998 someone in the Legal Advisor's office in the State Department indicated that he had never heard of the Opinion in the Washington media (nor had he received a State Department memorandum or briefing on it). Yet, the Opinion directly affects the human right to life by placing on Heads of State and their top advisers the specific duty to negotiate for nuclear disarmament.

By this formulation, the Court took a conceptual step forward in enunciating peace law. The judges acknowledged that the judicial branch of the UN system does not have the power to enforce its decisions.

Like the United States Supreme Court Justices who issued the decision in Brown v. Board of Education, they have no court staff at their command armed with weapons for enforcement, even in adversarial cases, let alone Generals and armed forces. For this reason, the judges stated the reality that the burden of enforcing the law as to nuclear weapons lies on Heads of State and legislators with power to negotiate treaties and administer their enforcement.

But the strength of peace law and the mobilization of shame do affect governmental actions. In Northern California, everyone is well aware of the University of California laboratories' continuing work on nuclear weapons. The World Court opinion was discussed by the Berkeley City Commission on Peace and Justice, established in 1986 by popular initiative vote to administer the city's nuclear-free-zone ordinance. The Opinion was quoted in a public forum called by the City to discuss a new contract by the Department of Energy with the University of California Lawrence Berkeley Laboratory to conduct simulated tests of nuclear weapons. The City Council voted to notify the University that it opposes this kind of work on the Berkeley campus.

Executive Order 13107 to implement the three human rights treaties brings into prominence the General Comment issued by the UN Human Rights Committee, after listening to distinguished jurists from Japan, that Article 6 of the International Covenant on Civil and Political Rights, enunciating the inherent right to life, includes the right to be free from nuclear weapons.

These efforts are leading some United States litigants and lawyers to take seriously the ICJ decisions and to consult and follow the General Comments of the Human Rights Committee and authoritative documents of other UN committees, commissions, rapporteurs and specialized agencies.

The Opinion of the Court and the separate opinions of each of the judges are included in full in the 1998 book "Nuclear Weapons Are Illegal: The Historic Opinion of the World Court and How It Will Be Enforced" (Ginger, editor, Apex Press).

Attorney Ann Fagan Ginger is Adjunct Professor at San Francisco State University, Vice-Chair of the Berkeley City Commission on Peace and Justice, and Executive Director of Meiklejohn Civil Liberties Institute.