UNaccountable? The United Nations, emergency powers and the rule of law in Asia

doi:10.1017/CBO9780511770630.010

9 - UNaccountable? The United Nations, emergency powers and the rule of law in Asia

from PART II - Postcolonial and post-conflict transitions

Published online by Cambridge University Press: 04 August 2010

Simon Chesterman

Edited by

Victor V. Ramraj and

Arun K. Thiruvengadam

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Victor V. Ramraj: Affiliation:
National University of Singapore
Arun K. Thiruvengadam: Affiliation:
National University of Singapore

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Summary

Above all we must remember that the ways of Orientals are not our ways, nor their thoughts our thoughts. Often when we think them backward and stupid, they think us meddlesome and absurd. The loom of time moves slowly with them, and they care not for high pressure and the roaring of the wheels. Our system may be good for us; but it is neither equally, nor altogether good for them. Satan found it better to reign in hell than to serve in heaven; and the normal Asiatic would sooner be misgoverned by Asiatics than well governed by Europeans.

Lord Curzon, 1889

In 1952 a committee of the American Society of International Law considered whether the laws of war should apply to United Nations enforcement actions. After struggling with the question, they noted that the UN held a ‘a superior legal and moral position’ to the states which are parties to the relevant conventions and concluded that the Organisation should ‘select such of the laws of war as may seem to fit its purposes’. This conferred extraordinary latitude upon the United Nations, which at the time consisted of only sixty countries. Since that time the membership of the UN has more than tripled and the Organisation itself has affirmed – though only in 1999 – that international humanitarian law does indeed apply to peacekeeping and other operations.

Type: Chapter
Information: Emergency Powers in Asia
Exploring the Limits of Legality
, pp. 237 - 264

DOI: https://doi.org/10.1017/CBO9780511770630.010 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2009

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References

You, The People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004)

Curzon, G. N., Persia and the Persian Question ([1892] London: Frank Cass, 1966), vol. II, p. 630Google Scholar

‘Should the Laws of War Apply to United Nations Enforcement Action?’ (1952) 46 American Society of International Law Proceedings217

Rawski, F., ‘To Waive or not to Waive: Immunity and Accountability in UN Peacekeeping Operations’, (2002) 18 Connecticut Journal of International Law103Google Scholar

Chesterman, S., ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law331CrossRef Google Scholar

Schott, J., ‘Chapter VII as Exception: Security Council Action and the Regulative Ideal of Emergency’ (2007) 6 Northwestern University Journal of International Human Rights24Google Scholar

Peerenboom, R., ‘Human Rights and Rule of Law: What's the Relationship?’ (2005) 36 Georgetown International Law Review809Google Scholar

Smith, A., An Inquiry into the Nature and Causes of the Wealth of Nations ([1776] Chicago: University of Chicago Press, 1976)Google Scholar

Trubek, D. M. and Galanter, M., ‘Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development’ (1974) 4 Wisconsin Law Review1062Google Scholar

Merryman, J. H., ‘Comparative Law and Social Change: On the Origins, Style, Decline and Revival of the Law and Development Movement’ (1977) 25 American Journal of Comparative Law457CrossRef Google Scholar

Gardner, J., Legal Imperialism: American Lawyers and Foreign Aid in Latin America (Madison: University of Wisconsin Press, 1980)Google Scholar

Dyzenhaus, D., ‘The State of Emergency in Legal Theory’, in Ramraj, V. V., Hor, M. and Roach, K. (eds.), Global Anti-Terrorism Law and Policy (Cambridge: Cambridge University Press, 2005)Google Scholar

O'Connor, V., ‘Rule of Law and Human Rights Protections through Criminal Law Reform: Model Codes for Post-Conflict Criminal Justice’ (2006) 13 International Peacekeeping517CrossRef Google Scholar

Carothers, T., ‘The Rule of Law Revival’ (1998) 77 Foreign Affairs95CrossRef Google Scholar

Caplan, R., International Governance of War-Torn Territories: Rule and Reconstruction (Oxford: Oxford University Press, 2005)CrossRef Google Scholar

Stromseth, J., Wippman, D. and Brooks, R., Can Might Make Rights? Building the Rule of Law after Military Interventions (New York: Cambridge University Press, 2006)CrossRef Google Scholar

Zaum, D., The Sovereignty Paradox: The Norms and Politics of International Statebuilding (Oxford: Oxford University Press, 2007)CrossRef Google Scholar

Agamben, G., State of Exception (Chicago: University of Chicago Press, 2005), p. 48Google Scholar

Humphreys, S., ‘Legalizing Lawlessness: On Giorgio Agamben's State of Exception’ (2006) 17 European Journal of International Law677 at 681–2CrossRef Google Scholar

Bhuta, N., ‘The Antinomies of Transformative Occupation’ (2005) 16 European Journal of International Law721CrossRef Google Scholar

Talmon, S. A., ‘The Security Council as World Legislature’ (2005) 99 American Journal of International Law175CrossRef Google Scholar

Halberstam, M., ‘The Copenhagen Document: Intervention in Support of Democracy’ (1993) 34 Harvard International Law Journal163Google Scholar

Ramos-Horta, J., Funu: The Unfinished Saga of East Timor (Lawrenceville, N.J.: Red Sea Press, 1987)Google Scholar

Kingsbury, D. (ed.), Guns and Ballot Boxes: East Timor's Vote for Independence (Clayton, Australia: Monash Asia Institute, 2000)

Martin, I., Self-Determination in East Timor: The United Nations, the Ballot, and International Intervention, International Peace Academy Occasional Paper Series (Boulder, Colo.: Lynne Rienner, 2001)Google Scholar

Oswald, B. M., ‘Model Codes for Criminal Justice and Peace Operations: Some Legal Issues’ (2004) 9 Journal of Conflict and Security Law269CrossRef Google Scholar

Kelly, M. J.et al., ‘Legal Aspects of Australia's Involvement in the International Force for East Timor’ (2001) 83 International Review of the Red Cross101Google Scholar

Strohmeyer, H., ‘Building a New Judiciary for East Timor: Challenges of a Fledgling Nation’ (2000) 11 Criminal Law Forum267 at n. 18CrossRef Google Scholar

Strohmeyer, H., ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’ (2001) 95 American Journal of International Law46CrossRef Google Scholar

Beauvais, J. C., ‘Benevolent Despotism: A Critique of UN State-Building in East Timor’ (2001) 33 New York University Journal of International Law and Politics1149Google Scholar

Grenfell, L., ‘Legal Pluralism and the Rule of Law in Timor Leste’ (2006) 19 Leiden Journal of International Law305CrossRef Google Scholar

Hyland, T., ‘Charges over Timor Violence’, Sunday Age (Melbourne), 8 October 2006Google Scholar

Lloyd, G., ‘Trio Holds Key to Resolving Conflict’, Courier Mail (Australia), 3 June 2006Google Scholar

‘UNMIK Refutes Allegations of Judicial Bias and Lack of Strategy’, UNMIK News (Pristina), 25 June 2001

,Human Rights Watch, World Report 2003 (New York: Human Rights Watch, 2003), p. 198Google Scholar

Ahmed, F., ‘Afghanistan's Reconstruction Five Years Later: Narratives of Progress, Marginalised Realities, and the Politics of Law in a Transitional Islamic Republic’ (2007) 10 Gonzaga Journal of International Law269Google Scholar

Gilmour, D., Curzon (London: J. Murray, 1994), p. 168Google Scholar