DEVELOPING A LEGAL SYSTEM IN EAST TIMOR: SOME ISSUES OF UN MANDATE AND CAPACITY

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DEVELOPING A LEGAL SYSTEM IN EAST TIMOR: SOME ISSUES OF UN MANDATE AND CAPACITY

in Austrian Review of International and European Law Online

References

1 The UN first began to discuss the concept of "peace-building" under the former Secretary- General, in Boutros Boutros-Ghali, An Agenda for Peace 1995 (New York: United Nations, 2nd edition). Under Kofi Annan, peace-building missions may now be found in Afghanistan, Angola, Bougainville, Burundi, the Central African Republic, the Great Lakes Region, Guatemala, Guinea-Bissau, Haiti, Liberia, the Middle East, Somalia and Tajikistan: see UN Fact Sheet: UN Political and Peace-Building Missions, available at http://www.un.org/peace/0800.pdf. However, only in Namibia, Cambodia, Kosovo and East Timor have brought governmental and admiuistrative functions been adopted by UN transitional administrations: see Rothert, M, "UN Intervention in East Timor", 2000, 39 Columbia Journal of Transnational Law, 257.

2 See, for example, the argument in Chopra, J, "Peace-Maintenance: The Last Stage of Development", Global Society, Vol 11, No. 2, 1997. 3 See Macrae, J, "Aiding peace and war: UNHCR, returnee reintegration, and the relief- development debate", UNHCR Working Paper No. 14, December 1999, available online at http://www.unhcr.ch/refworld/pubs/pubon.htm. 4 For a useful argument that peace-building begins with programmes to strengthen civil society see Pugh, M, "Post-conflict Rehabilitation: Social and Civil Dimensions", Journal of Humanitarian Assistance, available at http://www.jha.ac/articles/a034.htm. 5 See for example World Bank, World Development Report 1991: The Challenge of Development, Oxford: Oxford University Press, 1992; World Bank, "The State in a Changing World", World Development Report 1997, Washington, 1997. For an introduction to new institutional theories of economic development see North, Douglass, Institutions, institutional change, and economic performance, Cambridge, New York: Cambridge University Press, 1997.

6 Available at http://www.un.org/peace/reports/peace_operations/docs/a 55_305.pdf.

7 See World Bank, Report of the Joint Assessment Mission to East Timor, Washington D.C., USA, 8 December 1999.

I See for example the Report of the Secretary-General on the United Nations Transitional Administration in East Timor (for the period 27 July 2000 to 16 January 2001), available at http://www.un.org/Docs/sc/reports/2001/42e.pdf.

9 See also the criticism of UNTAET's allegedly anti-democratic and authoritarian tendencies in Chopra, J, "The UN's Kingdom of East Timor", Vol. 42 No. 3 2000 Survival 27-39. 11 CNRT has since split in preparation for the elections expected in August 2001. " Personal communication with members of East Timor's Yayasan Hak ("Rights Foundation"), Dili, 20 February 2000.

12 See UNTAET Regulation No. 33/2000.

'3 For example, a particular issue calling for consideration is the significance of equality principles, to be found inter alia in the International Convention on Civil and Political Rights, in the context of East Timor's pluralist customary law environment. For many of East Timor's customary groups, based on patrilineal descent lines and patriarchal forms of authority, their living law is unwritten and traditional, but can be criticised for discriminating against women. 14 For a comprehensive defence of UNTAET Regulation No. 1 (and UNMIK Regulation No. 1), and an excellent general account of post-conflict legal development in East Timor and Kosovo, see Strohmeyer, H, "Collapse and Reconstruction of Judicial System:

The United Nations Missions in Kosovo and East Timor", 95 American Journal of International Law 46 (2001). ). for example, budget and financial management 20/00, public appropriations 10/00, taxation 18/00, customs duties 12/00, legal tender 7/00, bank licensing and supervision 8/00, a central fiscal authority 1 /00, and use of currencies 2/00. All these regulations are available at http://www.un.org/peace/etimor/untaetR/. For example, applicable law 1/99, a Judicial Services Commission 3/99, an Official Gazette 4/99, organisation of Courts 11/00, 14/00 15/00, public prosecutions service 16/00, and transitional rules of criminal procedure 30/000. " For example, Public Service Commission 3/00, a Border Regime 9/00, a Central Civil Registry 3/01.

18 See, for example, ICJ (International Commission of Jurists), (199I) Indonesia and the Rule of Law: twenty years of 'New Order' government, London, Pinter; Lawyer's Committee for Human Rights, (1993) Broken Law Broken Bodies: Torture and the Right to Redress in Indonesia, New York, Lawyer's Committee for Human Rights; and United Nations Special Rapporteur, (1991), Report of the Special Rapporteur, Mr P. Kooijmans, pursuant to Commission on Human Rights Resolution 1991138, Geneva, United Nations. 19 For evidence of these crimes, and a damning indictment of Indonesian military human rights violations from an official Indonesian source, see the recent report by the Indonesian Human Rights Commission (Komnas Ham) into the violence surrounding the popular consultation in EastTimor of late 1999, available at http://www.komnas.go.id.

20 These groups included the well-respected East Timor human rights foundation, Yayasan Hak: personal communication, 10 March 2000, Dili, East Timor. 21 Soares, D, "A Brief Anthropological Overview of Customary Law in East Timor", unpublished paper 1999, copy on file with author. 22 Personal communication, 26 March 2001, Dili, East Timor. Interestingly, when questioned about the possibility that some traditional authorities had lost their people's support by actively supporting integration with Indonesian, the Catholic Bishop of Baucau also replied that the people always knew who their true traditional authorities were, and these were likely to be chosen from other members of the traditional aristocratic lineage. z3 UNAMET, Summary Situation Report for Los Palos, The Los Palos Regional Social Structures, September 1999, Dili, East Timor, copy on file with author, p. 2.

24 UNTAET Regulation No. 30 of 2000 on Transitional Rules of Criminal Procedure.

zs See, to name some of many examples, Kurki, Leena, "Restorative and Community Justice in the United States", 27 Crime & Justice 235, 2000; Sarre, R, "The Imprisonment of Indigenous Australians: Dilemmas and Challenges for Policy-makers", Spring 1999, 4 Georgetown Public Policy Review 165; Zehnder, M, "Who Should Protect the Native American Child: A Philosophical Debate Between the Rights of the Individual Verses the Rights of the Indian Tribe", 1996, 22 William Mitchell Law Review, 903.

26 Alston, P, "The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights", in Alston, P, (ed.) (1994) The Best Interests of the Child: Reconciling Culture and Human Rights, Oxford University Press, pp. 19-20. 27 An-Na'im, A, "Towards A Cross-Cultural Approach to Defining Standards of Human Rights: The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment", in An Na'im, A, (ed.) (1992) Human Rights in Cross-Cultural Perspectives, Pennsylvania, University of Pennsylvania Press, pp. 1-5. 28 Trubek, David, "Toward a Social Theory of Law: An Essay on the Study of Law and Development", The Yale Law Journal, 82 No. 1 1972: 1; Trubek, D, and Galanter, M, "Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States", Wisconsin Law Review, 1974: 1062. z9 See Seidman, Robert, and Seidman, Anne, State and Law in the Development Process, New York, St. Martin's Press, pp. 2-3; Greenberg DF, "Law and Development in Light of Dependency Theory", Research in Law and Sociology, 3, 1980, p. 129.

3° Personal communication, 25 February 2000, Dili, East Timor.

31 See Fitzpatrick, D, "Land Policy in Post-Conflict Circumstances: Some Lessons from East Timor", Journal of Humanitarian Assistance (forthcoming).

3z See UNMIK Regulation No. 1999/10 on the Repeal of Discriminatory Legislation Affecting Housing and Rights in Property; see also United Nations Centre for Human Settlements (Habitat), Housing and Property Rights in Kosovo, March 2000 (second edition), available at www.grid.unep.ch/btf/missions/habitat/.

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