Legal discourse on peacemaking/peacekeeping/peacebuilding: international law as a new topos for human security

bullInternational Journal

Volume LXII I No 3 I Summer 200 7

Ca n ad ian Institute of Intern ati on a I Affa irs

What kind of security Afghanistan and beyond

Miltiadis hierry Ta

Asteris Hu ras amp Nikolaos Tzifakis

Jasmin H Cheung-Gertler Stephanie Carvin

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Volume LXII I No 3 I Summer 2007

Contents What kind of security Afghanistan and beyond

451 What kind of security Guest editors introduction Alistair D Edgar B[ Kostas Ifantis

459 Emancipatory forms of human security and liberal peacebuilding Oliver P Richmond

479 Normative values and economic deficits in postconflict transformation Michael Pugh

495 The UN record on peacekeeping operations Michael W Doyle B[ Nicholas Sambanis

519 Legal discourses on peacemakingpeacekeepingpeacebuilding International law as a new topos for human security Miltiadis Sarigiannidis

539 The European Union From conflict prevention to preventive engagement still a civilian power lacking a strategic culture Thierry Tardy

559 Contextual approaches to human security Canada and Japan in the Balkans Asteris Huliaras B[ Nikolaos Tzifakis

577 NATOs strategic direction after Riga NATOs post-Cold War adaptation Kostas Ifantis

589 A model power for a troubled world Canadian national interests and human security in the 21st century Jasmin H Cheung-Gertler

608 Make law not war Canada and the challenge of international law in the age of terror Stephanie Carvin

620 The paradox of Mghanistan Stability operations and the renewal of Canadas international security policy David S McDonough

643 Unfulfilled promises Women and peace in post-Taliban Mghanistan Cheshmak Farhoumand-Sims

664 Conclusion to divided discipline Michad Lipson Danid Ma~iniak Amy Oakes Susan Peterson and MichadJ Tierney

The Lessons of History

667 Intellectualism in US diplomacy Paul Wolfowitz and his predecessors David MUne

Movers amp Shakers

681 Boris Berezovsky Russias first billionaire and political maverick still has it in for Vladimir Putin Yasmeen Mohiuddin

Coming Attractions

689 A pattern of constraint Canadian-American relations in the early Cold War Timothy Andrews Say~e

707 Response Michael Ignatieff Idealism and the challenge of the lesser evil A Wa~ter Dorn and Mike Varey

7II Answer to A Walter Dorn and Mike Varey Michae~ Cotey Morgan

717 Reviews

Oisin Tansey on Iain Kings and Whit Masons Peace At Any Price David Zierler on Michael Creswells A Question of Balance BJC McKercher on Zara Steiners The Lights That Failed Louis A Delvoie on Vah Nasrs The Shia Revival Aaron Ettinger on Ngaire Woodss The Globalizers

Miltiadis Sarigiannidis

A CONCEPTUAL TOPOGRAPHY

There are multiple ontological explanations for and technical definitions of peacemaking peacekeeping and peacebuilding However the post-Cold War explanatory framework provided by the former UN Secretary General Boutros Boutros-Ghali in his Agenda for peace serves as an essential theshyoretical elaboration as well as a pioneering comprehensive approach of contemporary conflict resolution within the United Nations institutionalshyized peace culture

According to this much-quoted document peacemaking is defmed as action to bring hostile parties to agreement essentially through such peaceful means as those foreseen in Chapter VI of the Charter of the United Nations Consequently driven by the ratio of conceptual proximi-

Miltiadis Sarigiannidis is a lecturer in public international law at the Aristotle University ofThessaloniki Greece

1 UN document A47277- S24111 Boutros Boutros-Ghali An agenda for peace Preventive diplomacy peacemaking and peace-keeping 17 June 1992 para 20

I International Journal I Summer 2007 I 519 I

I Miltiadis Sarigiannidis I

ty peacekeeping is portrayed as the deployment of a United Nations presshyence in the field hitherto with the consent ofall the parties concerned norshymally involving United Nations military andor police personnel and freshyquently civilians as well2 The obvious conceptual connection between peacemalcing and peacekeeping is further exemplified and summarized by Boutros-Ghali at the end of the paragraph since peacekeeping is referred to as a technique that expands the possibilities for both the prevention ofconshyflict and the malcing of peace3 Moreover peacebuilding is termed postshyconflict action to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict 4 The theoretical proximity and the operational linkage of these terms are subject to an overriding criterion peacemaking peacekeeping and peacebuilding are nothing less than a means to attain the UN charters preamble goal to save succeeding generations from the scourge of war

Still none of the aforementioned terms is cited expressis verbis in the UN charter the distinction between peacemaking peacekeeping and peace enforcement reflects the express and the implied boundaries as well as the latent interpretations of chapters VI and VII of the UN charter Whereas peacemalcing provides for a non-restrictive list of peaceful-diplomatic and judicial-means of dispute settlement in chapter VI peacekeeping is to be situated somewhere before peace enforcement-before the sanctions regime foreseen by chapter VII Moreover peacekeeping has always been

described as an imagined chapter six-and-a-half-a sui generis technique that proved to be a successful improvisation during the Cold War and an

even more promising conflict-resolution tool after the Cold War Furthermore Boutros-Ghali underscores the remaining pillar peacebuildshying as an essential and structural underpinning of the others

peacemalcing and peace-keeping operations to be truly successful must come to include comprehensive efforts to identify and supshyport structures which will tend to conso~idate peace and advance a sense of confidence and well-being among people Through agreeshyments ending civil strife these may include disarming the previshyously warring parties and the restoration of order the custody and

2 Ibid

3 Ibid

4 Ibid para 21

I Legal discourses on peacemakingpeacekeepingpeacebuilding I

possible destruction of weapons repatriating refugees advisory and training support for security personnel monitoring elections advancing efforts to protect human rights reforming or strengthshyening governmental institutions and promoting formal and inforshymal processes of political participation5

The above excerpt defines peacebuilding more as a process than the completion of one But since Agenda for peace the concept of peaceshybuilding has been further elaborated expanded and refined covering a broader post-conflict agenda The Brahimi panel on United Nations peace operations encapsulated the ideas and proposals set forward by BoutrosshyGhali In its hands peacebuilding is more than a process and more than an instrumentalist method to secure peace The Brahimi panel expands it to a deontological sphere of a quasi solidarity right as if it is empowered to trigshyger an actio popularis

peacebuilding is a term of more recent origin that as used in the present report defines activities undertaken on the far side of conshyflict to reassemble the foundations of peace and provide the tools for building on those foundations something that is more than just the absence of war Thus peacebuilding includes but is not limitshyed to reintegrating former combatants into civilian society strengthening the rule of law (for example through training and restructuring of local police and judicial and penal reform) improving respect for human rights through the monitoring edushycation and investigation of past and existing abuses providing technical assistance for democratic development (including elecshytoral assistance and support for free media) and promoting conshyflict resolution and reconciliation techniques Essential compleshyments to effective peacebuilding include support for the fight against corruption the implementation ofhumanitarian demining programmes emphasis on -human immunodeficieny virusacquired immunodeficiency syndrome (HIVAIDS) educashytion and control and action against other infectious diseases G

5 Ibid para 55middot

6 UN document Af55j305-Sj2oooj809 Report of the panel on United Nations peace operations 31 August 2000 para 13-14

I Internationalourn ltrnrn ~ ~ I I


Overall the paners report proved to be an influential policy text since its recommendations have been explicitly incorporated into the millennium goals declaration Departing from classical peacekeeping theory the Brahimi report shifts to a set of meditations goals and policies Moreover this broad understanding of peacebuilding implies a more holistic and comprehensive approach towards postconflict societies and contemporary conflict resolution literature

Thus imaging conflict within the triangular framework provided for by Johan Galtung where each vertex represents attitude behaviour and conshytradiction we could draw certain corresponding lines to peacemaking peacekeeping and peacebuilding Attitude is emotive cognitive and conashytive and it corresponds to peacemaking since the latter seeks to address the perceptions and misperceptions of the conflicting parties their feelings beliefs and will Behaviour includes the threatening coercive and destrucshytive conduct that has to be mitigated or even eliminated by peacekeeping And finally contradiction has to do with the incompatibility of goals between the parties thus bringing peacebuilding to the foreground in order to heal and even transform the deep roots of the conflicU This comshyprehensive approach ofconflict resolution echoes in a deja vu mode the forshymer UN Secretary General Kofi Annan who stated that

[w]e must continue to reduce the prevalence and risk of war This requires both the emphasis on developmentand the strengthenshying of tools to deliver the military and civilian support needed to prevent and end wars as well as to build a sustainable peace Investment in prevention peacemaking peacekeeping and peaceshybuilding can save millions of lives If only two peace agreements had been successfully implemented in the early 1990s-the Bicesse Accords in Angola and the Arusha Accords in Rwanda-we could have prevented the deaths of almost three million people8

7 Johan Galtung Peace by Peaceful Means Peace and Conflict Development and Civilization (London Sage 1996) 112

8 UN document AfS9200S report of the Secretary General Kon Annan In larger freedom Towards development security and human rights for all 21 March 2005

para 86

I 522 I International Journal I Summer 2007 I


The quest to attain sustainable peace reconceptualizes relevant classishycal terms Security for instance has been further universalized and humanshyized than1lts especially to the work and the final report of the Commission on Human Security9 Human security is currently considered an overarchshying concept and functional framework for peacemaking peacekeeping and peacebuilding and despite the fact that it is contested it projects a paradigshymatic shift Human security sheds light on the vital freedoms the critical needs and the demands ofindividuals and societies detaches security from state-centred political jargon and challenges foreign policyrnakers to devishyate from their long-standing sacrosanct focus on national interest and address the underlying and deep roots of conflicts As the commission noted

[h]uman security means protecting vital freedoms It means proshytecting people from critical and pervasive threats and situations building on their strengths and aspirations It also means creating systems that give people the building blocks of survival dignity and livelihood Human security connects different types of freeshydoms-freedom from want freedom from fear and freedom to tallte action on ones own behalf To do this it offers two general

9 Commission on Human Security Human security now Protecting and empowershy

ing people wwwhumansecurity-chsorg Precursory references to the notion of

human security can be found in the Brandt commission (1983) the Brundtland comshy

mission (1987) the Nyerere commission (1990) UNEPs human development report

(1994) the commission on global governance (1995) and the commission on intershy

vention and state sovereignty (2001) Moreover there is a fast growing academic litshy

erature that focuses upon human security Among others see Richard Falk

Pursuing the quest for human security in Majid Tehranian ed Worlds Apart

Human Security and Global Governance (London Tauris 1999) 1-22 Edward Newman amp Oliver Richmond eds The United Nations and Human Security (New

York Palgrave 2001) Roland Paris Human security Paradigm shift or hot air International Security 26 no 2 (2001) 67-102

I International Journal I Summer 2007 I 52 3 I


strategies protection and empowerment Protection shields people from dangers It requires concerted effort to develop norms processes and institutions that systematically address insecurities Empowerment enables people to develop their potential and become full participants in decisionmaking Protection and empowerment are mutually reinforcing and both are required in most situations1O

Human security encapsulates the UN charters preamble and furnishshyes the notion of security in the realm of human rights international instrushyments such as the universal declaration of human rights the international covenant on civil and political rights the international covenant on ecoshynomic social and cultural rights and the 1993 Vienna declaration of human rights Lilcewise human security stimulates a partisan UN memshybership that effectively defies commitment to state sovereignty It enshrines a responsibility to take action against natural and societal threats to human existence and development and to become devoted to a creative orientated policy towards the eradication of these threats

Finally the last term to discuss is tapas The reason for this term instead of field ground place space area terrain or land is that the word tapas has been animated in the political vocabulary in a pre-negotiated metaphoric and normative way In classical Greek rhetoric tapas refers to a standardized method of constructing or treating an argument It was Plato who politicized the term and constructed an ideal tapas in his Politeia (Republic) Later Thomas More coined the term utopia as part of the title ofhis book De Optima Reipublicae Statu deque Nova Insula Utopia known more commonly as Utopia Etymologically there are two versions to explain the word building of utopia Either the word utopia derives from the two Greek words ou(ou)=no and -ronoc(topos)=placejland thus meaning nowhere or more literally no-placejno-land or it could also be considshyered to be the outcome of the combination of the two Greek words ClJ(ef)=good and -ronoc(topos)=placejland thus meaning a good place The good place version contributed to the poetics of a utopia literally the making of a welfare society Augustine of Hippo described his ideal city in The City of God Dante Alighieri unfolded his plan on universal peace in his De Monarchia Tomasso Campanella imagined The City of the Sun

10 Commission on Human Security Human security now



Francis Bacon discovered The New Atlantis and James Harrington illusshytrated his Oceana Although the word topos has been an essential and pershypetual component of political envisaging-and utopias=good places and dystopias=bad places have emerged as neologisms to describe contemposhyrary revelations of world orders-utopia as a good-place has hardly ever been associated with an international legal order Such a utopia-one that achieves a political vision through the construction of a better international legal order-is to be found in Rene Jean Dupuys La Communaute intershynationale entre le mythe et lhistoire and Philip Allotts Eunomia A New Order for a New World and The Health ofNafions Society and Law Beyond the State In the writings of both scholars we may observe that the focus is extended to discrepancies discontinuities and dilemmas on the level of ideas about international legal order more particularly of community and the lawyers struggle in making it betterII As a result proposing internashytionallaw as a new top os for contemporary peacemaking peacekeeping and peacebuilding and overall for human security is an alternative way to construct a world order-through an interdisciplinary approach that effecshytively bridges conflict resolution and public international law beyond stateshyentrapped typologies

SOME HISTORICAL DEFINING MOMENTS

By the end ofWorld War II the drafters ofthe UN charter had a clear undershystanding of the nature and structure of the scourge of war Within this legal context peaceful dispute settlement and peace enforcement were by definition clear-cut responses to interstate armed conflicts Chapters VI and VII therefore were vested with a great deal of political imagination to accomplish the task of maintaining and restoring international peace and security through the institutionalization ofa truly collective security system immune from the rationale of balance of power though resting upon the veto privilege

Contrary to these postwar great expectations the bipolar aftermath renshydered collective security a chimera if not a field of recycled and ostensible political rhetoric hemmed in by the procedur~s foreseen in article 33 of the UN charter More specifically the sine qua non condition for putting into motion the UN collective security system is the identification of the perpeshy

11 Outi Korhonen International law situated An analysis of the lawyerS stance towards culture history and community (The Hague Kluwer Law International 2000)201



trator During the Cold War ministries of foreign affairs were transformed into authoritarian interpreters and unitary agents of international law taishyloring principles rules and norms to their interests and rights in their efforts to identify their preferred perpetrator of aggression The record of the security council concerning the determination of a threat to a peace a breach of the peace or an act of aggression-and the application of approshypriate enforcement action-was indeed very poor during the Cold War years Such an existence was determined and enforcement measures undertaken only in the cases of the racial discrimination policies (apartheid) applied by the governments of South Africa and Southern Rhodesia and during the civil war in Congo

However international law as a set of principles rules and legal ideas in constant evolution is not to be subjected to whatever those using them want them to mean2 Therefore using Boutros-Ghalis conceptual platshyform peacemaking that is negotiation inquiry mediation conciliation arbitration judicial settlement resort to regional agencies or arrangements or other peaceful means was misapplied as a tool to serve the inviolabilishyty of the vested ideological and political interests of the Cold War architects and policymallters and was not used as an essential underpinning of the UN principles scopes and collective security system For instance peaceshymalting still remains an everyday stake in the Middle East overrun by pathologies stereotypes and narrow interests In Cyprus peacemallting seems barely to be consolidated even half a century after the outbreallt of conflict In other cases such as the mountains of Tibet peacemaking did not even touch the ground Similarly the perception of various interests incompatibility had a severe impact upon certain issues of high politics associated with national security and in consequence multilateralism proved ineffective where the attainment of nuclear free zones and nuclear disarmament was concerned Despite the commitment undertallten by the signatory parties to the nonproliferation treaty to engage in negotiations to secure the early cessation of the nuclear arms race and the establishment of a regime of general and complete nuclear disarmament under strict and effective international control diplomatic deliberations over the last 40 years have not removed the nuclear overltill threat After all the internashy

12 Rosalyn Higgins Comments in Catherine Brolmann Rene Lefeber and

Marjoleine Zieck eds Peoples and Minorities in International Law (The Hague

Martinus Nijhoff 1993) 30 reproduced in Henry Steiner amp Philip Alston eds International Human Rights in Context (Oxford Clarendon Press 1996) 989

I 526 I I nternational Journal I Summer 200 7 I


tional court of justice accepted in its mid-I990s Advisory opinion on the legality of the threat or use of nuclear weapons that the possession of nuclear weapons by the five permanent members of the security council is deterrence rather than a threat to international peace and security

As a result the sword remained the principal means of managing interstate disputes and situations whereas the pens of the diplomats fought for rhetoric alternatives and exit strategies While the United Nations charter model was short-circuited by unilateral state revelations of justice and international law chapter VI was caught in the Cold War trap and chapter VII was effectively written in the language of exile since peace enforcement measures were clearly situated beyond utopia This being the case the diplomats had to improvise and discover a functional alternative to manage conflicts at the periphery of the bipolar agents in order to preshyserve and guard international peace and security Thus peacekeeping turned out to be an ideal exit strategy Amidst a momentum of peacemalltshying agitation during the Suez Channel crisis political improvisation and legal flexibility gave birth to the unwritten chapter six-and-a-half of the UN charter The former foreign minister of Canada Lester Pearson the masshytermind of the first UN peacekeeping operation (UNEF) described that momentum

We had learned in advance of Edens intention to state in the British House of Commons that police action must be to sepashyrate the belligerents and to prevent the resumption of hostilities between them If the UN were willing to tallte over the physical task of maintaining peace no one would be better pleased than we We took it to mean that Britain and France would be preshypared to hand over the police task they had assumed to a UN force I knew that we would have to have something more to offer than just a diplomatic gimmick to meet Anglo-French requireshyments another observer corps would not do By midnight we had a fairly good idea that a UN peacekeeping intervention would be well-supported If you like we had begun to mount a diplomatic operation on the assumption that we might decide to introduce a resolution for a cease-fire to be policed by a United Nations emershygency force)

13 John Munro amp Alex Inglis eds The Memoirs of the Right Honourable Lester B Pearson Vol 2 7948-7957 (Toronto University of Toronto Press 1973) 245-46

I I nternational Journal I Summer 2007 I 527 I


However it should be noted that the setting up of the United Nations truce supervision organization in Palestine serves as a predecessor an embryonic peacekeeping operation established on the initiative of the UN mediator for Palestine Count Folke Bernadotte in June 1948 In the words of former UN Secretary General Trygve Lie

Count Bernadotte had requested me earlier to supply some milishytary personnel to assist him in truce control functions and I arranged with the three governments represented on the Security Councifs Truce Commission-Belgium France and the United States-to assign officers from their armed forces for duty as United Nations military observers During the second truce the number reached five hundred They were stationed at strategic points along the cease-fire line in the capitals ofIsrael and the Arab states Their only protection was the modest blue and white armshyband added to their national uniform to identifY them as United Nations observers 14

Eventually peacekeeping found its place between chapters VI and VII and proved to be an artefact of conflict management during the Cold War 15

Peacekeeping was to be an alternative means to peace enforcement and a raison detre for peacemaking in order to move behind the lines ofthe biposhylar interposition It assigned a role to the organization without engaging it in the hunt for notorious perpetrators or imposing a predetermined outshycome upon the parties to a conflict as a collective security system requires On the contrary the peacekeeping technique aimed at the mapping of conshyflict and also sought to create a consensual environment that allowed all parties to negotiate a settlement Moreover peacekeeping promoted the volshyuntary participation of middle and small powers and the exertion of moral rather than armed force Finally peacekeeping operations during the Cold

14 Trygve Lie In the Cause ofPeace Seven Years with the United Nations (New York Macmillan 1954) 187

15 Setting the classical guidelines for peacekeeping operations former UN SecretaryshyGeneral Dag Hammarskjold underscored that [ilt would be more than an observer corps but in no way military force There is an obvious difference between estabshylishing the Force in order to secure the cessation of hostilities with a withdrawal of forces and establishing such a Force with a view to enforcing a withdrawal of forces UN document A3302 6 November 1956


middot I Legal discourses on peacemakingpeacekeepingpeacebuilding I

War were slightly engaged in peacebuilding in the sense of the ad hoc and everyday contribution of the blue helmets to the settlement and resolution of the deeper causes of conflicts Former UN Secretary General U Thant enunciated the risks and the far-reaching tasks of the peacekeeping operashytions pointing out that

[t]he ability of a peacekeeping operation to re-establish and mainshytain quiet for an extended period may come to be mistaken for the solution of the basic problem This can only increase the sense of shock when ultimately and inexorably it is demonstrated that problems of conflict may lie dormant even for longer periods but they do not necessarily solve themselves by the passage of time and the day may come when they will explode anew Peacekeeping operations can serve their purpose if they are accompanied by serishyous and persistent efforts to find solutions to problems which required the peacekeeping in the first place I6

INTERNATIONAL LAW START TALKING

The end of the Cold War was a catalyst since international peace and secushyrity were negotiated on its battlefields civilians were victimized and states were declared failed and collapsed Internationalized civil wars that fashshyioned contemporary armed conflicts divisions that were inscribed between friends and rogues and the novel literature on asymmetric threats enrich the vocabulary of contemporary conflict resolution The debate of the past

16 Two years later he went on summing up the very core principles of peacekeeping by stating that U[e)ven in the case ofUNEF where the United Nations itself had taken a stand on decisive elements in the situation which gave rise to the creation of the Force it was explicitly stated that theforce should not be used to enforce any specifshyic political solution of pending problems or to influence the political balance decisive to such a solution This precept would clearly impose a serious limitation on the posshysible use of United Nations elements were it to be given general application to them whenever they are not created under Chapter Vllofthe CharterThe basic element involved is clearly the prohibition against any initiative in the use of armed force This definition of the limit between self-defence as permissible for United Nations eleshyments of the kind discussed and offensive action which is beyond the competence of such elements should be approved for future guidance UN document A3943 9 October 1958



IS years over international peace and security and the role of UN peace supshyport operations has reinstated international law at the epicentre of the agenshyda concerning the new world order Thus by invoking international law and more specifically the UN charter as the epitome and ultimate codificashytion of jus cogens international lawyers are expected to construe and comshyprehend the effects of the collapse of the Berlin Wall

In this context one has to conceptualize the very essence of the contrishybution of international law to the remaldng of world order either by treatshying international law and the UN charter as a mnemonic or historic set of norms and rules that are solid rigid and unchanged or by using internashytionallaw and the UN charter as a revolutionary and creative dynamic to reconstruct the international community and inspire fresh and flexible norms and rules along with political imagination

The former approach paves the way for the funeral oration of internashytional law fostered by legal scholars like Michael Glennon who effectively argue that the use of force cannot be subjected to the rule of law and that terms such as lawful and unlawful are not meaningful when they involve the use of force After the non-UN-authorized US military intershyvention in Iraq Glennon stated pessimistically that

legalists must be hard-headed about the possibility of devising a new institutional framework anytime soon to replace the battered structure of the Security Council The forces that led to the counshycils undoing will not disappear Neither a triumphant nor a chasshytened United States will have sufficient incentive to resubmit to old constraints in new contexts Neither vindicated nor humbled comshypetitors will have sufficient disincentives to forgo efforts to impose those constraints Nations will continue to seek greater power and security at the expense of others Nations will continue to disagree on when force should be used Like it or not that is the way of the world In resuming humanitys march toward the rule oflaw recshyognizing that reality will be the first step7

Unfortunately this is not a radical or shocldng statement Addressing the 1963 annual meeting of the American Society of International Law US Secretary of State Dean Acheson commented in the context of the

17 Michael J Glennon Why the security council failed Foreign Affairs 82 no 3

(2003) 35

I 530 I Intern3tional Journal I Summer 2007 I


American quarantine of Cuba that [t]he power position and prestige of the United States had been challenged by another state and the law simply does not deal with such questions of ultimate power-power that comes close to the sources of sovereignty18 Both quotations are indicative of an absolute pessimism or even negativism towards any normative and regulashytory approach of high politics

On the contrary the second approach encapsulates internationallawin a dynamic context and as a process Judge Rosalyn Higgins (International Court of Justice) in defending the malting and use of international law as a process rather than a set of rules rightly observes that

[wJhen decisions are made by authorized persons or organs in appropriate forums within the framework of certain established practices and norms then what occurs is legal decision-malting In other words international law is a continuing process of authorishytative decisions This view rejects the notion of law merely as the impartial application of rules International law is the entire decishysion-maldng process and not just the reference to the trend of past decisions which are termed rules Thus rules are just accumushylated past decisions And if international law was just rules then international law would indeed be unable to contribute to and cope with a changing political world To rely merely on accumushylated past decisions (rules) when the context in which they were articulated has changed-and indeed when their content is often unclear-is to ensure that international law will not be able to conshytribute to todays problems and further that it will be disobeyed for that reason19

Thus rendering international law an obsolete accumulation of rules and a common interstate code of communication has reinforced the domishynance of legal positivism within the field of international law Likewise states are taldng advantage of and manipulating international law in order to secure the survival of the state-centric structure of the international comshy

18 Dean Acheson The Cuban quarantine remarks American Society of International Law Proceedings 57 (1963) 14

19 Rosalyn Higgins Problems and Process International Law and How We Use It (Oxford Clarendon Press 1994) 2-3



munity and the United Nations is a [arum of idiosyncratic domestic jurisshydictions vested with no actual powers since the big five of the security council are the elite sovereigns In a nutshell the United Nations is pershyceived as a trustee ofthe Westphalian project and international law appears to be nothing more than a collection ofcustomary practices and treaties ratshyified by state authorities This Westphalian obsession has not remained uncontested since the Westphalian model is not the only normative model available The United Nations charter model has emerged as a distinctive alternative despite the eschatological perspectives of international law scholars that overwhelmed the academic communities during the military intervention in Iraqo

The Westphalian model is formed exclusively by states in the absence ofan international legislator that can unilaterally create norms erga omnes and due to the total ladlt of a binding jurisdiction to implement international law Moreover sovereignty and legal equality among states are core principles that protect the domestic affairs of a state from external intershyvention while the resort to force is a right belonging and exercised by the state in order to protect its rights and interests On the other hand the United Nations charter model aclmowledges the existence of other agents beyond the state and establishes a set of general principles of international law that prevail over treaties and customary norms Sovereign equality is demystified since power and wealth are legally evaluated and reflected in the charter and most of all resorting to the use of armed force is no longer a right Only self-defence remains a legal option for the state in all other cases the security council is the centralized body that despite its demoshycratic deficit is the fiduciary of enforcement overriding the non-interfershyence principle and the Westphalian supremacy of state sovereignty

The onus is on international law scholars to disconnect the charter of the United Nations from the Westphalian operating framework and to try to conceptualize and interpret the rules and norms of the charter taking

20 Richard A Falk The interplay of Westphalia and charter conceptions of internashytional legal order in C A Blach amp R A Falk eds The Future of International Legal Order (Princeton Princeton University Press 1969)

21 For a synopsis of these distinctive normative models see Danilo Zolo Cosmopolis Prospects for World Government (Oxford Polity Press 1997) 94-97

I 53 2 I International Journal I Summer 2007 I


contemporary teleological considerations into account while respecting the historicity of the document Moreover as Boutros-Ghali put it next to the society of states there is an international scientific community that desires to establish law as a language of international relations Nonetheless Dino Kritsiotis adds critically that

[d]epicting law as language in this waypresents the law as a creshyative (rather than destructive) alternative force in international relashytions [since] [tJhe foundations of permanent and stable world peace require more than simple power-equation calculations and sensitivity to the shifting power bases and differentials Through international law nation shall finally be able to speak lasting and meaningful peace unto nation 23

Furthering these arguments and detaching international law and the UN charter from the legacy of the Westphalian legal primitivism it seems a challenging utopia to codify legally the accumulated experience and parashymount principles of peacemaldng peacekeeping and peacebuilding within the UN system In doing so the UN system should be considered at least a quasi legal decision-maldng mechanism promoting legal dialectics at the international level Likewise conflict resolution meets international law in the making of a process that advances human security and leads to the establishment of a peaceful world order that is neither static nor anarchic

MAKING SENSE OF THE INTERNATIONAL LAW

LANGUAGE IN PEACEMAKING-KEEPING-BUILDING

Sponsoring international law as a common language in conflict resolution requires a solid institutional context that can secure lawmaking and policy implementation Although not uncontested the UN system provides for such an environrnent4 James Crawford argues that the UN constitutional

22 Boutros Boutros-Ghali Foreword in Towards the Twenty-First Century International Law as a Language for International Relations (New York Proceedings

of the United Nations Congress on Public Internati~nal Law 1996) xiv

23 Dino Kritsiotis The power of international law as language California Western Law Review 34 no 2 (1998) 408-9

24 For example Gaetano Arangio-Ruiz states that the charter is a mere inter-state

compact Gaetano Arangio-Ruiz The federal analogy and UN charter interpretashy

tion a crucial issue European Journal of International Law 8 no 1 (1997) 9



framework is ita constitution which constitutes a society and not just an organisation-a constitution which is basal and not only bureaucratic 25 Equally strong is the point made by Christian Tomuschat

[iJt has become obvious in recent years that the Charter is nothing else than the constitution of the international community [Ilt stands out as the paramount instrument of the international comshymunity not to be compared to any other international agreement It may not be fully satisfactory as a world constitution not having been conceived of for that function in I945 But it is the only writshyten text binding upon all states of this globe which sets forth firm determinations on the general issues which make up the hard core of any system of governance The present-day world order rests entirely on the Chartec6

The argument that law is at the heart of the UN system serves as a platshyform that projects the two-fold underpinning of the UN legal order Despite structural deficiencies-as there is no powerful judicial reviewing body and the political organs were denied ab initio the legislative power-the UN sysshytem is a legal order itself since it frames and epitomizes universal values and principles and at the same time it produces law that defends impleshyments and enforces the former Oscar Schachter distinguishes three difshyferent stages in the UN legal process law making in the UN system interpreting and applying law and compliance and enforcement27 UN main bodies such as the security council and the general assembly act as lawmakers and produce an impressive amount of law both in terms of quality and quantity in a multiplicity of ways Moreover these bodies also interpret and apply UN law according to the principle of effectiveness thus giving priority to the accomplishment of the scopes and goals of the UN

25 James Crawford The charter of the United Nations as a constitution in Hazel

Fox ed The Changing Constitution ofthe United Nations (London British Institute

of International and Comparative Law 1997) 8

26 Christian Tomuschat ed The United Nations at Age Fifty A Legal Perspective (The Hague Iltluwer Law International 1995) ix

27 Oscar Schachter The UN legal order An overview in Christopher C Joyner ed The United Nations and International Law (Cambridge Cambridge University Press

1997)1-26


Legal discourses on peacemakingpeacekeepingpeacebuilding I

system The last part of Oscar Schachters categorization is the most probshylematic since compliance and enforcement have always been weak points As he mentions

[fJor a long time compliance and enforcement were on the marshygins of UN concern The busy world of UN law-making and lawshyapplying carried on pretty much without serious consideration of means of ensuring compliance Some international lawyers disshymissively referred to enforcement as a political matter outside the law8

However despite the transitional deficiencies of the post-Cold War political environment it still injects a new dynamic concerning methods of compliance and enforcement into the UN legal order Peace-support operashytions have been introduced as a means ofachieving a certain degree ofcomshypliance with international standards obligations or decisions set by the UN system and have resulted in a record of both successes and failures Furthermore transforming peacekeeping and peacebuilding into concrete and coherent UN legal norms-thus avoiding to a certain extent political distortion manipulation andor double-standards policies-could strengthen the enforcement capability of the UN Moreover it could create a truly common language beyond cultural legal controversies that could actuaJly apply homogenously to issues of peace and security within the shrinking boundaries of globalization

This broad understanding of the role of international law as a generalshyly accepted language in international politics is further elaborated and porshytrayed by the fact that contested terms like justice and rule oflaw appear extensively in documents produced or adopted by UN bodies Within this spectrum Annan has pointed out that [t]he United Nations through many complex operations has learned that the rule oflaw is not a luxury and that justice is not a side issue Likewise former under secretary general for peacekeeping operations Jean-Marie Guehenno stated that

[w]e can no longer afford to treat the rule oflaw as a side activity in which we engage alongside political objectives In many cases it

28 Ibid 13



lies at the heart of the success or failure of our peacekeeping opershyations It is time therefore to fundamentally rethink the way in which we address the rule oflaw in post conflict societies9

Somehow bolder a presidential statement by the security council stresses implicitly the importance of all levels of conflict resolution and underscores the essence of justice and the rule oflaw in resolving internashytional conflicts and capitalizing upon human security

The Security Council recalls that justice and rule oflaw at the intershynational level are of key importance for promoting and maintainshying peace stability and development in the world The Council underlines also the importance of helping to prevent future conshyflicts through addressing their root causes in a legitimate and fair mannerldeg

Although this marks a significant step forward one would observe that a quasi law-making organ such as the security council bypasses the direct reference to bridge the addressing [of the conflicts] root causes in a legitishymate and fair manner with peacemalcing and peacekeeping and limits its finding within the calibre of a presidential statement Still it is important that the security council policymallters attach the legal concepts of justice and rule of law to the diplomatic means used-from preventive diplomacy and early warning to the peacebuilding of post-conflict societies In the light of contemporary peace support operations it is essential to bring their varshyious and wide components that range from election monitoring and disarshymament to the repatriation of refugees and the administration of territories under the aegis of legal terms such as justice rule of law legitimacy and fairness despite their broad conceptualization

On the contrary leaving peacemaking peacekeeping and peace buildshying outside the range of justice and the rule of law and ignoring the corpus of international law where it comes to conflict resolution reveals the relucshytance of some UN organs and of certain member states to undertake tasks

29 UN document SPY4833 Security council agenda justice and the rule of Law the United Nations role 24 September 2003

30 UN document SPY4835 Security council agenda justice and the rule oflaw the United Nations role 30 September 2003

I 536 I International Journal I Summer 200 7 I


that should be regulated in a uniform and binding way The UN commitshyments in Kosovo in the context of resolution 1244 serve as a relevant conshytemporary example This abstentionist policy-which is incompatible with the tasks and obligations foreseen by the UN charter in view of maintainshying and restoring international peace and security and establishing welfare societies-could be encountered by invoking the quasi legislative nature of the UN organs More specifically peacemaking peacekeeping and peaceshybuilding constitute a continuum that has evolved empirically as a set of principles and values under the label of human security So far although the Brahimi report stands as the sole far-reaching evaluation of peace supshyport operations and set of ideas for reform it is a policy-oriented reportY Perhaps it is about time to proceed with the codification of the UN peaceshykeeping operations principles and values in the form of a framework conshyvention on peacekeeping and peacebuilding Framework conventions are a relatively new form of flexible treaty-making32 they include a few general obligations along with a loose legal and institutional context and they leave special and contested issues to be negotiated later on evolving to commitshyments that usually take the form of protocols33 Likewise law acquires a dynamic nature and resembles more a comprehensive and regulatory process than a burial ground of legal ideas values and principles Moreover the UN general assembly sets the appropriate forum to negotiate and finally adopt a framework convention that would gradually elaborate upon the accumulated knowledge and experience deriving from UN peace support operations evaluate it and transform it to a common language in the realm of international law

Soon after the end of World War II the civilized nations established a body to regulate war If the project to humanize the scourge of war by forming rules concerning jus ad bellum and jus in bello is not essentially paranoid then it should not be beyond us to draft a proposal creating a legally binding tapas that would regulate the when where and how of peacekeeping and peacebuilding in the context of p~ace support operations and human security

31 SPRST200434 6 October 2004

32 ASS30S S2000809 Peacekeeping operations

33 See Christian Tietje The changing legal structure of international treaties as an aspect of an emerging global governance architecture German Yearbook of International Law 42 (1992) 36 The UN framework convention on climate change and the WHO framework convention on tobacco control stand as examples

Volume LXII I No 3 I Summer 2007

Contents What kind of security Afghanistan and beyond

451 What kind of security Guest editors introduction Alistair D Edgar B[ Kostas Ifantis

459 Emancipatory forms of human security and liberal peacebuilding Oliver P Richmond

479 Normative values and economic deficits in postconflict transformation Michael Pugh

495 The UN record on peacekeeping operations Michael W Doyle B[ Nicholas Sambanis

519 Legal discourses on peacemakingpeacekeepingpeacebuilding International law as a new topos for human security Miltiadis Sarigiannidis

539 The European Union From conflict prevention to preventive engagement still a civilian power lacking a strategic culture Thierry Tardy

559 Contextual approaches to human security Canada and Japan in the Balkans Asteris Huliaras B[ Nikolaos Tzifakis

577 NATOs strategic direction after Riga NATOs post-Cold War adaptation Kostas Ifantis

589 A model power for a troubled world Canadian national interests and human security in the 21st century Jasmin H Cheung-Gertler

608 Make law not war Canada and the challenge of international law in the age of terror Stephanie Carvin






Movers amp Shakers


Coming Attractions




717 Reviews















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Movers amp Shakers


Coming Attractions




717 Reviews















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Legal discourse on peacemaking/peacekeeping/peacebuilding: international law as a new topos for human security

Documents