Unaccountable? the United Nations, Emergency Powers, and the Rule of Law

By Chesterman, Simon | Vanderbilt Journal of Transnational Law, November 2009 | Go to article overview

Unaccountable? the United Nations, Emergency Powers, and the Rule of Law


Chesterman, Simon, Vanderbilt Journal of Transnational Law


ABSTRACT

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"?

I. INTRODUCTION

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 activities of its Security Council--the question of what limits there are on its powers has become more pressing.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Unaccountable? the United Nations, Emergency Powers, and the Rule of Law
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.