Tuesday, December 20, 2005

Peacebuilding and the Westphalian Legal Order

Today, both the United Nations General Assembly (UNGA) and the United Nations Security Council (UNSC) passed closely coordinated resolutions (see here and here) approving the establishment of a new "Peacebuilding Commission" (UN buffs will find such a procedural move noteworthy in its own right). As for the Commission, it will serve as the UN’s central repository for advising countries emerging from conflict to ensure they continue on the road to recovery. The Commission will have 31 nation-state members, including members who will represent the UNSC, the UNGA, the top contributors to the UN budget, and the top providers of military and civilian personnel to UN missions.

The Peacebuilding Commission is one of the few tangible results to emerge from the much-hyped UN reform summit this past September (the other one to watch for in the next few days would be a new Human Rights Council). The President of the UNGA went so far as to describe today’s move as truly "historic."

Although calling it "historic" might be mere hyperbole, I prefer to take the reference at face value. As an historical matter, I see the Commission’s creation by UN member states as demonstrating the continuing vitality of what international lawyers call the "Westphalian Legal Order." This is the notion that since the Treaties of Osnabrück and Münster ended the Thirty Years War in 1648 (collectively known as the "Peace of Westphalia"), the international legal order has functioned as a means of regulating relations among sovereign states. Certainly other subjects of international law now exist beyond the sovereign state, namely international organizations and, to a more limited extent, individuals. Moreover, terrorism provides a near daily reminder that threats to international peace and security can come from non-state actors as much as nation states themselves. But it is also true that international organizations obtain their legal personality through the action of sovereign states, just as individual rights and responsibilities under international law originate in state practice. Similarly, although terrorism may reflect the threat posed by some non-state actors, the tools used to fight it are (so far) largely state-centric through either national or inter-governmental action.

I see the Peacebuilding Commission, therefore, not as some "new" idea, but as a continuation of a much older one. Indeed, the central purpose of the Peace of Westphalia was to guarantee the peace through collective state action. And each of the subsequent (failed) efforts at collective action (e.g., the Congress of Vienna, the Congress of Berlin, the League of Nations, and, since 1949, the United Nations) had the same goal. With all the controversy over the UN’s continuing vitality and the need for reform, it’s fair to say the Peacebuilding Commission reflects one more effort in pursuit of that goal. Thus, as much as we talk about new actors and new threats in international law, it’s worth remembering how sovereign states are still the ones who address these developments and that the older problems of conflict and its aftermath remain. Whether the new Commission will work or not remains open to question (the odds are certainly stacked against it). But it got me thinking – aren’t we still in the same Westphalian Legal Order where sovereign states make the law and create the institutions (if any) to implement it?

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