For a body committed to the rule of law in theory, the applicability of the rule of law to the United Nations in practice remains oddly unclear. This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. Rather the focus of this Article is on the quasi-constitutional question of the liability of the organization itself. As the United Nations has assumed more state-like functions--in particular through the coercive activities of its Security Council--the question of what limits exist on the powers thus exercised has become more pressing. These powers may be compared to emergency powers within the domestic jurisdiction of states. Whereas a state of emergency is traditionally invoked in order to justify a departure from or stretching of the rule of law, here the existence of an emergency is a prerequisite to invoking the rule of law at all. At the same time, those promoting the rule of law generally lie beyond the reach of the jurisdiction in question--both during times of emergency and in times of quiet.
TABLE OF CONTENTS I. INTRODUCTION II. INVOKING THE RULE OF LAW AS A RESPONSE TO EMERGENCY A. The Security Council's Uses of the Rule of Law B. Applying the Rule of Law in Timor-Leste III. COMPROMISING THE RULE OF LAW BECAUSE OF EMERGENCY A. Does the Rule of Law Apply to the United Nations? 1. Kosovo: Executive Detentions 2. Targeted Financial Sanctions B. Compromising the Rule of Law in Afghanistan IV. CONCLUSION: THE "WAYS OF ORIENTALS"?
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 (1)
In 1952, a committee of the American Society of International Law considered whether the laws of war should apply to United Nations (UN) enforcement actions. After struggling with the question, the committee noted that the UN held a "superior legal and moral position" (2) to the States Parties to the relevant conventions and concluded that the organization should "select such of the laws of war as may seem to fit its purposes." (3) This conferred extraordinary latitude upon the United Nations, which at the time consisted of only sixty countries. Since that time, UN membership has more than tripled, and the organization itself has affirmed--though only in 1999--that international humanitarian law does indeed apply to peacekeeping and other operations. (4)
For a body ostensibly committed to the rule of law in theory, (5) the applicability of the rule of law to the UN in practice remains oddly unclear. A historical reason for this was the uncertain legal personality of this club of states when it was created, which had to be inferred by the International Court of Justice four years later. (6) With respect to specific bodies of law, an ongoing problem is that the UN is not itself a party to, among other things, the human rights treaties negotiated under its auspices. (7)
This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. (8) Rather the focus is on the quasi-constitutional question of the liability of the organization itself. As the UN has assumed more state-like functions--in particular through the coercive …