Showing papers in "Max Planck Yearbook of United Nations Law in 2005"

State-Building, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Different Approaches

Abstract: I. Defining the Issues 1. A Useful Distinction a. State Failure and State-Building b. Nation Failure and Nation-Building c. The Habitus of Obedience to Law 2. Foreign Intervention and the Promotion of Democracy a. The Policy of the United States b. The Policy of the United Nations II. Constitutional Politics 1. Constitutional Nation-Building 2. Collective Identity and Constitutional Identity 3. The Procedural Aspect: Democracy, Elite Consensus, and Foreign Intervention a. The South African Constitution b. The Afghan Constitution c. The Cypriot Constitution 4. The Institutional Aspect: Strong Leadership or Consensual Democracy? III. Conclusion

Midwifing a New State: The United Nations in East Timor

Abstract: I. “A Laboratory for ‘Nation-Building’?” II. Decolonisation, Interrupted: The Historical Background III. From UNAMET to INTERFET: The Referendum on Independence IV. From INTERFET to UNTAET V. The United Nations’ Kingdom of East Timor? Transitional Administration under UNTAET 1. Preparations Leading up to UNTAET 2. The Legality of Security Council Resolution 1272 (1999) 3. Powers of UNTAET and Limits thereto under International Law a. The Status of East Timor from the Establishment of UNTAET to Independence b. The Powers Vested in UNTAET c. Restrictions on UNTAET’s Powers aa. UNTAET’s Mandate bb. Human Rights cc. Analogy to the Trusteeship System dd. Humanitarian Law: The Law of Occupation ee. The Right to Self-Determination ff. The Right to Democratic Governance 4. Accountability: The Control of UNTAET’s Powers a. Internal Control Mechanisms b. External Control Mechanisms c. Evaluation

Sierra Leone: African Solutions to African Problems?

Abstract: This article analyzes to what extent international, regional and national efforts to solve the civil war in Sierra Leone as well as to bring along post-conflict justice have been competing with, or supportive of each other. It argues that the legal frameworks of these missions and institutions need to be more mindful of the efforts by other missions and institutions pursuing similar ends in order to maximize their effectiveness and not to defeat each other.

Reconstruction through accountability

Abstract: In post-conflict situations the question regularly comes up as to whether the call for criminal prosecution may be compromised in the interest of reconstruction. Justice and reconciliation are often considered as competing concepts. The author argues that there is not necessarily such a dichotomy. Whether there is, in fact, a duty to prosecute should be answered on the basis of international human rights law. The question ultimately depends on how human rights can be effectively guaranteed in the long run. A survey of contemporary jurisprudence and international practice shows that prosecution is increasingly viewed as an indispensable measure of human rights protection. But criminal justice is not to be achieved at all costs. Mixed forms of accountability are a potential model for the future including that of Iraq.

Afghanistan: Building a State to Keep the Peace

Abstract: The American decision to remove the Taliban government from power suddenly opened a window of opportunity for the resolution of the long Afghan conflict. The resulting United Nations brokered settlement and the subsequent reconstruction process remained in many respects a sui generis mission. Partly this is due to the peculiar nature of the Afghan conflict, which required a particularly careful, non-intrusive approach. Also of importance is, however, that the peace process has run parallel – and often been subservient – to the ongoing American-led “war on terror”.These two factors, namely Afghan sensibilities and American military necessities, have affected the peace process in numerous ways and required a number of carefully orchestrated compromises. The concessions that have been necessary in this respect have been forcefully decried by both domestic and international non-governmental organizations and the media, focusing in particular on the continued heavy involvement of former warlords in the government, the lack of security, and the international unwillingness to extent robust peace-keeping beyond Kabul. While much of this criticism is logically consistent, and normatively plausible, it does not take into account the existing political and military realities that heavily constrain the limits within which a political settlement can be pursued.

Somalia–A Very Special Case

Abstract: I. Historical Background II. How Did the United Nations Get Involved? 1. The Establishment of UNOSOM 2. The Situation at the End of 1992 3. UNITAF and the Operation Restore Hope 4. The Transition from UNITAF to UNOSOM II and the Period until May 1994 a. The National Reconciliation Conference b. Worrying Signs c. A New Mandate 5. The Nairobi Declaration 6. The Period from May 1994 until August 1994 – Little Progress and the Hawiye Clan 7. The Period from August 1994 to March 1995 8. The Withdrawal III. Assessment