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From No. 2, Vol. XLVIII, ¡°Pursuing ¹ú²úAV: Commemorating Dag Hammarskj?ld¡±, 2011

The pursuit of peace has been omnipresent throughout history, and given the omnifarious nature of the concept, the ideas and means for its realization have been as diverse as can be. Some fancied simply subjugating by force; others emphasized the effectiveness of international arbitration or adjudication; some found it useful to establish international organizations, possibly with a collective security system; some even thought of creating a regional integration body so that state sovereignty could be tamed; still others held that guaranteeing human security in order to eradicate abject poverty and other everyday menaces should be the way. Today, some assert that the contemporary imperative is to win the war against transnational terrorism.
This list, which is only an abridged one, reflects that issues in peace correspond to the probl¨¦matique of the day and the intellectual and political posture adopted to face those issues. Some authors place an emphasis on forcible means for peace, while others prioritize less violent means, such as consultations and cooperation in international organizations, as well as the reinforcement of states abiding by law. This latter, less-violent idea may also include a shift in the concept of peace to one that accentuates the importance of positive peace, which is coterminous with the abolition of structural violence.
In spite of the diversity mentioned above, it seems we could identify a few trends in the process towards global security and peace, especially if we set aside the problem of structural violence. First, the global process to peace has evolved around the axis of judicialization, which means setting legal standards for major international issues and guiding states' behaviour toward these standards. The history of the attempts made towards outlawing war is clear evidence of this, starting from discreet regulation of war and culminating in a general prohibition of the use of force. Second, this global process is also characterized by the notion of legitimacy, which has increasingly become required as a means to achieve peace. The efforts made to obtain Security Council authorization for states' use of force exemplify this trend. And third, the institutionalization of the peacebuilding process has been in motion, meaning that world peace and security have, gradually, been pursued multilaterally, though not to the complete exclusion of bilateralism.
The important point in this regard is that the first requirement of legality and the second, of legitimacy, if combined together, almost inevitably lead to this third requirement of multilateralism. In order to both legalize and legitimize their behaviour, states gravitate towards relying on multilateral settings such as the United Nations.
This is not to say that multilateralism as it stands now is a panacea for the success of peace anytime, anywhere. For example, it is obviously incorrect to claim that the United Nations is instrumental in forestalling or resolving all international or domestic conflicts. Instead, the observation implies that multilateralism is more than mere friendly relations among states; it is an antithesis to unilateralism, thus containing within it the requirement of commonly respected legality and widely supported legitimacy. Multilateralism is not simply a fact; it is both a norm to constrain states' selfish behaviour and a guiding principle for the world to take joint decisions and joint actions.
Another dictate which emerges from multilateralism is that UN organs are bound by the precepts of legality and legitimacy as well as the respect of the collective will. This applies particularly to the Security Council, which is endowed with exceptional powers to enforce laws and/or policies and whose actions have to be legal and legitimate -- legal in the sense that they are in accord with both the United Nations Charter and other rules of general international law, and legitimate in the sense that they reflect the common will of the Member States instead of only a handful of states. Although these might have been tall orders when it was established in 1945, the Council became increasingly caught in such demands, with the heightening of the notion of democracy, particularly after the end of the Cold War when the Council started using its extraordinary power more.
A recent case in point in this regard is the sanctions regime imposed by the Council against Taliban and Al Qaeda members or those suspected to be related to them, which forms one part of the fight against terrorism. A committee established pursuant to Council resolution 1267 (1999), known as the "Al-Qaida and Taliban Sanctions Committee," listed suspected individuals and organizations and imposed targeted sanctions on them, including the freezing of their assets.
As these sanctions involved the possibility of violating some fundamental human rights of those targeted, several litigations were brought before the European Court of Justice (ECJ). Especially notable was the Kadi case, where the plaintiffs challenged the legality of a regulation of the Council of the European Union aimed at executing the Security Council's sanctions resolution. The Court of First Instance turned down the plaintiffs' appeal,¹ but the ECJ admitted it, recognizing that the regulation in question violated the plaintiffs' human rights -- in this instance, the right to property and the right to a fair trial.² The ECJ did not pass judgment on the legality of the Council's resolution, yet it came close to the judicial review of the said resolution and, in fact, constituted an indirect review of it.
There are criticisms that the ECJ's judgment exhibits European exceptionalism or that it may hinder the effective search of global security and peace by the Security Council. Yet, it is also plausible that even the Council is not immune from the necessary scrutiny to secure legality for its resolutions. It may be more desirable for the International Court of Justice to do the job (counterarguments to this exist), but if it cannot or does not, other judicial organs like the ECJ might legitimately assume the function.
The point is that even the Security Council is not exempt from the exigency of legality in its activities. If not adequately lawful, its resolutions and/or activities may also lose their legitimacy as the work of the guardian of international peace and security. In that sense, the ECJ judgment was a good chance for the UN system to reflect on the degree to which its work is regarded as legitimate.
It is in this context that in 2009 the Security Council created an Office of the Ombudsperson to oversee the working of the Sanctions Committee and to assist those individuals and entities on the list when they wished to get their names de-listed. This was done for the purpose of securing due process and the rule of law in the work for peace and security which, in turn, serves to enhance the legitimacy of the measures against those suspected of terrorism. Counter-terrorism measures are important, but it is not enough that these measures are adopted in a formally lawful way by the Council or its subsidiary organ: they have to be accompanied by transparency and a procedure through which suspects can exercise the right to be heard. This will give the United Nations more legitimacy, based on legality.
Fulfilling the demands of both legality and legitimacy is likely to lead to some kind of global constitutionalism composed of some universally accepted norms with at least a few jus cogens (imperative norms) at its apex. It is arguable whether the UN Charter itself represents the constitution of the world; yet, it is clear that UN organs should be at the core of this constitutionalization of the world and of international law. It does not mean that the UN becomes a leviathan, however righteous the objective of power-wielding may be, but that it becomes the core of the global rule of law.
This role of the UN in the constitutionalization process also involves the task of critically examining states' conduct from a legal point of view. A recent illustration of this is the report submitted by Professor Alston in May 2010 to the Human Rights Council on the use of extrajudiciary, summary, and arbitrary executions. The report inquired into the legality of targeted killings against which much suspicion has been voiced. The review was courageous and timely, particularly now that we are to examine the legality of the killing of Osama Bin Laden. The war on terrorism does not legally justify everything, but it has to be scrutinized in regard to its legality and legitimacy. Only through this scrutiny can the war on terrorism become part of the constitutionalization of international law and, thus, of the global rule of law.
Notes
1 Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, Case T-315/01, Judgment of 21 September 2005, Court of First Instance (now General Court); Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Case T-306/01, Judgment of 21 September 2005, Court of First Instance (now General Court).
2 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Joined Cases C-402/05 P and C-415/05 P, Judgment of 3 September 2008, European Court of Justice.