1 1Mag. iur. (University of Vienna), M.A. in InternationaI Relations (JHU/SAIS), Ph. D. candidate in international law at the European University Institute, Florence. The author has worked in various positions in the OSCE Missions in Bosnia and Kosovo, most recently as (acting) Temporary Media Commissioner (TMC) in Prishtina. I wish thank my supervisor, Prof. Pierre-Marie Dupuy, for his vaIuable comments and Elsa Gopala Krishnan for thoroughly re-reading earlier drafts of this articIe.
1 M. Rothert, "U. N. Intervention in East Timor", 39 Columbia JTransnational L 257 (2000- 2001). Cf. also R. N. Haass, Intervention: The Use of American Military Force in the Post- Cold War World 16 (1999), and K. von Hippel, Democracy by Force. US Military intervention in the Post-Cold War World 10 (2000). 2 Cf. O. Korhonen, "International Governance in Post-Conflict Situations", 14 Leiden JIL 496 (2001), and R. Paris, "Peacebuilding and Limits of Liberal Interventionism", 22 Internatioual Security 55 (1997). For a recent critique of the interventionist paradigm
interpreted as post-modern colonial concept in disguise, see G. Knaus/F. Martin, "Travails of the European Raj. Lessons from Bosnia and Herzegovina", 14 Journal of Democracy 60 (2003). 3 For a typology of and state practice regarding non-sovereign entities with limited international personality see R. Jennings/A. Watts (eds.), Oppenheim's International Law. A Treatise, Vol. 1 - Peace 188 (9`" ed. 1992); J. H. W. Verzijl, International Law in Historical Perspective: Part II: International Persons Chapter VI (1969), and id., Part III: State Territory Chapter 1V (1970), and M. Ydit, Internationalised Territories. From the 'Free City of Cracow' to the 'Free City of Berlin'. A Study in the Historical Development of a Modern Notion in International Law and International Relations (1815-1960), at 19 (1961).
4 , Staatengemeinschaftsgebiete which are regarded as all territories under multiple sovereignty subject to a "gemeinsame Verfugung uber das Gebiet" (joint disposition over the territory); A. Verdross, Vdlkerrecht 297 (1964). See also Verzijl, supra note 3, Part III, at 429. 5 A. J. R. Groom/P. Taylor, "The United Nations System and the Kosovo Crisis", in A. Schnabel/R. Thakur (eds.), Kosovo and the Challenge of Humanitarian Intervention. Selective Indignation, Collective Action, and International Citizenship 303 (2000).
6 In the Minguiers and Ecrehos case, the Court had to decide the issue of jurisdiction over a tiny island close to the Normandy coast, contested between France and Britain: "Having
thus been requested to decide whether these groups belong [appartiennent] either to France or to the United Kingdom". Minquiers and Ecrehos (France v. UK), Merits, Judgment of 17 November 1953, 1953 ICJ Reports 47, at 52. 7 Cf. 1. Brownlie, Principles of International Law 108 (1990); E. Lauterpacht, International Law: Collected Papers 367-370 (1970); Verzijl, supra note 3, Part III, Chapter 1, at 9; Verdross, supra note 4, at 267; and Donati who, in the tradition of Roman ownership law argued "che il diritto dello Stato sul territorio costituisce un diritto di dominio in senso stretto" D. Donati , "Stato e territorio", 8 Rivista di diritto internazionale 465, 471 (1914). On this topic, O'ConneI writes that there would seem to be a fundamental cleavage between common law systems. "The common law theory of title still has its roots in feudal law with the Crown having the ultimate reversion and proprietary rights being explained in terms of vassalage. Accordingly, sovereignty and property are indistinguishable conceptions to the Anglo- American lawyer" while "[t]he Roman law (...) contained the basis of a distinction between sovereignty and property, so that the one could exist without the other". D. P. O'Connell, International Law, Vol. I, 403-404 (1970). 8 H. Lauterpacht, "The International Personality of the United Nations. Capacity to Administer Territory", 5 ICLQ 410 (1956). Similar M. N. Shaw, "Territory in International Law", 13 NYIL 74 (1982). 1 Case concerning Right of Passage over Indian Territory (Port. v. Ind.), Merits, Judgment of 12 April, 1960 ICJ Reports 6, 124 (diss. op. Judge Fernandes). 10 On the essential identity between jurisdiction, control and sovereignty, see H. Lauterpacht, "Sovereignty over Submarine Areas", 27 BYIL 376, 389 (1950): "For exclusive jurisdiction
and control is sovereignty. This is so necessarily, seeing that State territory is the space within which the State exercises its supreme authority" 1 ' Compare, for instance, Gerber's interpretation of territory as the 'body' of the state 'person', in B. Gerber (ed.), Grundziige des deutschen Staatsrechts 67 (1880). For a review of arguments against the theory of territory considered as an object of a state see D. Donati, Stato e territorio 37 et seq. (1924). 12 This opinion was reinforced in the Bankovic Case in which the European Court of Human Rights (ECHR) concluded that extraterritorial jurisdiction can only be recognized in cases where a state effectively controls the relevant territory and its inhabitants, exercising at least some of the public powers normally exercised by that government. See Bankovic and Others v. Belgium and 16 Other Contracting States, Application No. 52207/99, Decision of 12 December 2001, at paras. 59-73. For a critique see G. Cohen-Johnathan, La territorialisation de la juridiction de la Cour europeenne des droits de l'lzomme, RTDH 1069 et seq. (2002). " Cf. e.g. the PCIJ judgment in the Lotus case: "All that can be required of a state is that it should not overstep the limits which international law places upon its jurisdiction. Without these limits its title to exercise jurisdiction rests in its sovereignty" (France v. Turkey, 1927 PCIJ (Ser. A.) No. 10, at 19). Kelsen also implicitly subscribed to the distinction. Though referring to the functional competencies of state organs, he maintained that "[u]nder International Law, only the state within the boundaries of which a territory lies is entitled to dispose of this territory, which means that ... only organs of the national legal order have the power to enter into legal transactions referring to the territor". H. Kelsen, Principles of International Law 217 (1952). 14 B. Gilson, The Conceptual System of Sovereign Equality 164 (1984).
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Couneil Res. 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 16, at 54. 16 S/INF/25 (1970), UNSC Res. 284, 25, UN SCOR at 4, para. 1. See Namibia opinion, supra note 15, at para. 118. A. Verdross/B. Simma/R. Geiger, "Territorial Souveranitat und Gebietshoheit", 31 OZoRV 223, 224-225 (1980). Case Concerning East Timor (Port. v. Austral.), Judgment of 30 June, 1995 ICJ Rep. 90. z° In Monetary Gold Removed from Rome in 1943 (Italy v. Fr., UK and USA), Preliminary Questions, Judgment of 14 June, 1954 ICJ Reports 19, at 32 the Court declined to rule on the lawfulness of the conduct of a third state in the absence of this state's consent.
21 See the East Timor case, supra note 19, at 179, (diss. op. Judge Weeramantry). zz Verdross, Simma and Geiger discuss the cases of Austria ceding sovereignty over Lombardy (Treaty of Zurich, 10 November 1859) and Venice (Treaty of Vienna, 24 August 1866) to France without the latter assuming effective control which, instead, was acquired by Sardinia. See Verdross et al., supra note 18, at 226. z3 L. J. Woolsey, "The Sovereignty of the Panama Canal Zone", 20 AJIL 117, 121 (1926). The concept of reversion should be distinguished from that of residual sovereignty, the
principal point of difference consisting in the fact that reversion involves a change of sovereignty, whilst in the case of residual sovereignty, the territorial sovereign has not lost status as such (See Brownlie, supra note 7, at 112). Thus the article prefers to speak of residual, rather than reversionary, sovereignty. Cf. also examples of titular, residual and distribute sovereignty in O'Connell, supra note 7, at 325. 24 As advocated by J. Ringelheim, "The Legal Status of Kosovo", in EUI Working Group report, Kosovo 1999-2000: The Intractable Peace (2000), at section 2.2, as well as id., "Considerations on the International Reaction to the 1999 Kosovo Crisis", 32 Revue belge de droit international475, 540 (1999). art. XXV of the Treaty of Berlin, 13 July 1878. Cf. Verzijl, supra note 3, Part III, at 408; Verdross et al., supra note 18, at 227. Contrary to the occupation and administration of Cyprus by England based on the Treaty of June 1878 between Turkey and England, the transfer of effective control over Bosnia-Herzegovina to the 'protecting state' Austria-Hungary was not limited in time. Z6 In a declaration made at the Conference at which the Treaty was adopted, the representatives of Austria-Hungary expressly accepted that the rights of sovereignty of Turkey over the provinces of Bosnia-Herzegovina would not be affected by the fact of occupation. See Schmitt, The Annexation of Bosnia 1908-1909 (1937), quoted in C. A. Whomersley, "The International Legal Status of Gdansk, Klaipeda and the Former East Prussia", 42 ICLQ 919, 925 (1993). 27 Woolsey, supra note 23, at 118. In Art. Ill of the Treaty, Panama granted the USA "all the rights, powers and authority regarding the zone mentioned ... which the United States would possess and exercise if it were the sovereign of the territory ... to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, powers or authority" (emphases added).
28 72 AJIL 516 (1978). This superseded treaties of 1901, 1903, 1936 and 1955 governing the Canal. See M. N. Shaw, International Law 367, No. 203 (1997), and Verdross et al., supra note 18, at 232. 29 US Secretary of State Vance, addressing the House Committee on International Relations, said: "In 1903, we acquired certain rights, similar to those exercised by a sovereign, but nonetheless rights, not sovereignty". Quoted by Verdross et al., supra note 18, at 234. 30 A. Verdross, Volkerrecht 268 (1964) (emphases added). 31 in 1951 the US Secretary of State Dulles referred to the "residual sovereignty of Japan over the islands that enabled her to place them under the trusteeship of the United Nations, "with the United States as the administering authority". Brownlie, supra note 7, at 112. '2 In 1898, e.g., China leased four territories to the German Empire to Russia, France, and to England, explicitly without transferring territorial sovereignty (Brownlie, supra note 7, at 113, and Verzijl, supra note 3, at 403). By the treaty of Peace of Pourtsmouth (1905), Russia, in turn, sub-ceded the lease of Port Arthur and Talienwan to Japan. See M. F. Lindley, The Acquisition and Government of Backward Territory in International Law 239 (1926). For the institution of state servitudes and other exceptional restrictions on the territorial
supremacy of a state cf. L Oppenheim, International Law. A Treatise, Vol. 1-Peace (8`" ed. by H. Lauterpacht, 1955), 535 and F. A. Vali, Servitudes in International Law. A Study of Rights in Foreign Territories 277 (1958). 33 M, Koskenniemi, "National Self-Determination Today: Problems of Legal Theory and Practice", 43 ICLQ 241, 253 et seq. (1994). 34 Treaty of Peace between the Principal Allied and Associated Powers and Germany of 28 June 1919 (Treaty of Versailles), 1919 Consolidated Treaty Series, Vol. 225, at 189 et seq., Part III, Section IV, Ann., Art. 16. See generally on the subject 1. von Munch, "Saar Territory", in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4, at 271 (2000), and H. Hannum, Autonomy, Sovereignty and Self Determiization: The Accommodation of Conflicting Rights 389 (1996).
3s Treaty of Peace, supra note 34, Art. 19. '6 The mandate of the League ended in 1935 when the population of the Saar Territory voted in a plebiscite on 13 January 1935 in favour of immediate reunification with Germany. " P. E. Corbett, "What is the League of Nations?", 5 BYIL 119, 127 (1924). See also Ydit, supra note 3, at 45: "What really remained for Germany was only the nudum ius to the territory itself." Hannum remarks that "German courts considered the Saar to be part of the Reich for various purposes. Saar residents also retained German nationality. However, the Saar was a wholly autonomous regime, and all governmental ties with Germany were severed during this time". Hannum, supra note 34, at 391. '8 Art. 49 of the Treaty of Versailles (See Treaty of Peace, supra note 34) determines that "Germany renounces in favour of the LON in the capacity of trnstee the government of the territory defined above. At the end of fifteen years from the coming into force of the present treaty, the inhabitants of the said territory shall be called to indicate the sovereignty under which they desire to be placed". Hatschek interpreted this provision convincingly, arguing that "Der Volkerbund als Rechtssubject ad hoc erhalt eine Staatsservitut, d. h. er schrankt die deutsche Staatshoheit fiir die Dauer von 15 Jahren dahin ein, daf3 er die Regierung ubernimmt". See J. Hatschek, Vblkerrecht als System rechtlich bedeutsamer Staatsakte 161 (1923), and Vali, supra note 32, at 281.
39 League of Nations Covenant, Art. 22, at para. 1 (emphasis added). 40 International servitudes, in this reconceptionalised version, shall be understood as limitations to the sovereign exercise of authority of one entity, rather than 'real entitlements' by the administering agent, and should be distinguished from territorial sovereignty. See Vdli, supra note 32, at 49 et seq. 4' Basic Agreement between the Croatian Government and local Serb authorities on the Region of Eastern Slavonia, Baranja, and Western Sirmium (ErdutAgreement), UN Doc. S/1995/ 951, Annex reproduced in 35 ILM 184 (1996). 4z Ibid., at 185. 43 See the 'Report of the Secretary General pursuant to Security Council Res. 981 ( 1995), 982 (1995) and 983 (1995)', S/1995/987, at para. 29, and 'Report of the Secretary General pursuant to Security Council Res. 1025 (1995)', S/1995/1028, at para. 6. 44 S/RES/1037 (1996), 15 January 1996.
as G. Cellamare, "Note sull'amministrazione transitoria delle Nazioni Unite in Slavonia Orientale (UNTAES)", in Divenire sociale ed adeguamento del diritto: studi in onore di Francesco Capotorti, Vol. 1, 83 ( 1999). Only the Transitional Administrator was in a position to make binding arrangements with the governments of Croatia, Serbia, or with local Serb authorities. See D. Boothby, The UNT,4ES Experience. Weapons Buy-back in Eastern Slavonia, Baranja, and Western Sirmium, Brief 12, Bonn International Centre for Conversion, at 13 (October 1998). ab S/1997/487, 23 June 1997, para. 48. See also S/1007/767, 2 October 1997, para. 3.
47 see D. Sarooshi, "Some Preliminary Remarks on the Conferral by States of Powers on International Organisations", Jean Monnet Working Paper 4/03, at 17 (2003). '8 Ibid., at 18. '9 See the statement of the President of the SC on behalf of the Council: S/PRST/1998/3, 13 February 1998. 50 Arts. 3 and 5 of the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, 31 ILM 183 (1992). According to Matheson, UNTAC's authority was "limited by the requirement that UNTAC follow any 'advice' approved by a consensus of the factions represented in the Supreme National Council, to the extent that it did not conflict with the Agreement". See M. J. Matheson, "United Nations Governance of Post-conflict Societies", 95 AJIL 76, 77 (2001 ).
5' H. Kelsen, The Law of the United Nations 651 (1961). This restrictive interpretation has, albeit unconvincingly, been challenged by, e.g., Ydit, who defines internationalised territories as "populated areas, established for an unlimited period as special political entities, whose supreme sovereignty is vested in, and party (or exclusively) exercised by, the supreme organisation of the international community" (See Ydit, supra note 3, at 320). sz GA Res. 181(11), Ann., part 111; GA Res. 194 (III) and 303 (IV). 53 United Nations, Trusteeship Council, Official Records, 611 session, 1950. Ann., Vol. 1, 128. UN Doc. T/L.72.
s4 H. Kelsen, The Law of the United Nations 687 (1950), with citations. ss Ann. 4 to the Treaty of Peace with Italy, 10 February 1947, 49 UNTS 3, 187. Cf. J. H. W. Verzil, International Law in Historical Perspective: Part II: International Persons 504 ( 1969). ss The powers were never actually assumed because of inability to reach agreement in the SC on the details of the administration. 57 Peace Treaty with Italy, supra note 55, at Art. 2. s8 See the statements of the Representatives of Syria and Australia, Repertoire of the Practice of the Security Council, 1946-1951, at 482.
59 UNSC Official Records 2"d Year, 89`" meeting 16 (1947), quoted by J. W. Halderman, "United Nations Territorial Administration and the Development of the Charter", 95 Duke LJ 95, 97 ( 1964). bo SCOR 1947, 4-29 and 44-61, quoted by F. Seyersted, "United Nations Forces. Some Legal Problems", 37 BYIL 351, 452 (1961). See also the discussion of the Triest case and its significance for the development of the residuary power of the Security Council by O. Schachter, "The Development of International Law Through the Legal Opinion of the United Nations Secretariat", 25 BYIL 91, 96-101 (1948). 6' See Repertoire of the Practice of the Security Council, supra note 58, at 483. With the adoption of Res. 16 of 10 January 1947 and the 'Permanent Statute', the Security Council followed the opinion of the SG. The powers were never actually assumed because of inability to reach agreement in the SC on the details of the administration.
62 Le., E. Lauterpacht, "The Contemporary Practice of the United Kingdom in the Field of International Law - Survey and Comment", 5 ICLQ 405, 409 (1956). Seyersted noted correctly that the failure of the UN to exercise territorial jurisdiction in Jerusalem and Triest would not be an indication of its absence of legal capacity but of a lack of territories to be brought under its administration. Cf. Seyersted, supra note 60, at 453. 63 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April, 1949 ICJ Reports 174, 182 (emphases added). 6' For a comparison of the three different views expressed in the Court of the question of implied powers see G. Fitzmaurice, 28 BYIL 1, 5-6 ( 1952). On the issue of inherent powers of the UN to establish and command forces, see Seyersted, supra note 60, at 460 et seq. bs GA Res. 1752 (XVII), 21 September 1962. On 1 May 1963 the administration of the territory was transferred by the UNTEA to Indonesia while the former's preparatory responsibility to facilitate the territory's future 'act of self-determination' - as stipulated in the 15 August 1962 Agreement - was minimised. For a highly critical account of the UN, especially its failure to resist Indonesian political calculus, see P. W. van der Veur, "The United Nations in West Irian. A Critique", 18:1 International Organization 53 et seq. (1964). 66 Ibid., No. 10, 8 (October 1962).
6' Cf. 1. I. Dore, "Self Determination of Namibia and the United Nations: Paradigm of a Paradox", 27 Harvard ILJ 159 (1986) and E. Osieke, "Admission to Membership in International Organisations: The Case of Namibia", 51 BYIL 189, 192 (1980). 68 According to GA Res. 2248 (S-V) of 19 May 1967, the UN Council for Namibia was charged with the task of administering the territory until independence in June 1968 (UN Doc. A/6657/Supp.l (1967)). The Resolution was adopted by 85 votes to 2 with 30 abstentions. On the attitude of governments towards Res. 2248 see the Report by the Secretary General 'Compliance of Member States with the United Nations Resolutions and Decisions relating to Namibia, taking into account the Advisory Opinion of the lnternational Court of Justice of 21 June 1971 ', UN Doc. A/AC.131/37, 12 March 1975. Namibia opinion, supra note 15, at 52. Discussing whether Art. 24 of the Charter furnishes the necessary authority for the administration by the UN, Halderman argued that "in the absence of any reasonable specific authority for such action in the Charter, and of any apparent intent on the part of the framers to include such authority, it is believed to be the best solution of the resulting problem to regard the Council action... as the first step in a potential process of Charter modification... through practice and acquiescence of the members". Halderman, supra note 59, at 98.
the term VerwaLtungscession (administrative cession), frequently used in German legal literature (Verzijl, supra note 3, Part III, at 408, and Verdross et al., supra note 18, at 241) appears inadequate to approach the phenomenon in question. Cession, one of the modes through which territory can be acquired in international law, involves the peaceful transfer of territory from one sovereign to another and has the effect of replacing one sovereign with another. The basis of cession lies in the intention of the relevant parties to transfer sovereignty. As only effective control - and not the sovereign dominium - is transferred in cases of administration of foreign territories, it is not permissible to speak of cession. 7 ' In his dissenting opinion, Judge Fitzmaurice stated that "[t]he Security Council might, after making the necessary determinations under Art. 39 ..., order the occupation of a country or piece of a territory to restore peace or security, but it could not thereby, or as part of that operation, abrogate or alter territorial rights" (Namibia opinion, supra note 15, at 294). 72 Matheson, supra note 50, at 85. He takes this extensive interpretation from a reading of Art. 41 which recites a list of possible measures that may be employed to give effect to its decisions. He argues that the list, clearly being exemplary and non-exhaustive, would not limit the Council in deciding on different steps or instruments. '3 E. Klein, Statusvertrdge im V61kerrecht 303 (1980): "Territorial zustandig sind ... die Vereinten Nationen, ... die in analoger Anwendung von Art. 81 SVN zur Administration
befugt sind. In Ausiibung dieser Befugnis hat die Generalversammlung den 'Council for Namibia' errichtet." Cf. also L. L. Herman, "The Legal Status of Namibia and of the United Nations Council for Namibia", 13 CYIL 306 (1975). " See East Timor Case, supra note 19, at Part B(iii). 'S M. N. Shaw, International Law 166 (4`" edition, CUP, 1997). 76 Para. 10 of S/RES/1244 (1999), 10 June 1999. 77 Para. 1 of S/RES/1272 (1999), 25 October 1999.
'8 Art. 25 of the Vienna Convention on the Law of Treaties states that a treaty (of which FRY's acceptance of a phased withdrawal of its military is an example, see infra) "is void if its conclusion has been procured by the threat or use of force". 1969 Vienna Convention on the Law of Treaties, 8 ILM 679 (1969). '9 The Kosovo peace plan, negotiated between the Finnish President, the Special Envoy of the Russian President, and the Yugoslav President was subsequently ratified by the Serbian parliament - see Decision by the National Assembly of the Republic of Serbia of 3 June 1999, reprinted in P. E. Auerswald/D. P. Auerswald (eds.), The Kosovo Conflict 1079 (2000) - and appended as Ann. II to SC Res. 1244 (1999). military Technical Agreement (MTA) between the International Security Force ('KFOR') and the Governments of the FRY and the Republic of Serbia concluded at Kumanovo (fYRoM) on 9 June 1999 (UN Doc. S/199/682 of 15 June). In the MTA, the FRY agreed to a phased withdrawal of all FRY forces to locations in Serbia proper. 8' E. Milano, "Security Council Acting in the Balkans: Reviewing the Legality of Kosovo's Territorial Status", 14 EJIL 999 (2003). The agreement is recalled in Ann. 2, para. 10, of SC Res. 1244 (1999). 8z Basic Agreement between the Croatian Government and local Serb authorities on the Region of Eastern Slavonia, Baranja, and Western Sirmium (Erdut Agreement), UN. Doc. S/1995/ 951, Annex reproduced in 35 ILM 184 (1996).
e3 Contra Milano, supra note 81, at 1018. ea As argued by von L. von Carlowitz, "UNMIK Lawmaking Between Effective Peace Support and Internal Self-Determination", 41 Archiv des Volkerrechts 336, 343 (2003). 85 The wording of Art. 41 of the UN Charter grants the Council wide discretion as to the range of measures necessary for the maintenance of international peace. The list of measures expressly referred to in Art. 41 is not exhaustive. It is a testimony to the ever-increasing importance of the SC that, in the 1990s, international territorial administrations were established as subsidiary organs under the authority of the SC and not of the GA: UNTAC (United Nations Transitional Authority in Cambodia, 1992-3), UNMIK and UNTEAT as well as UNMIBH (UN Mission in Bosnia and Herzegovina which exercised administrative functions in relation to, and was in charge of the restructuring of, the UN International Police Task Force) were (and in case of UNMIK are still) administered by the SG pursuant to Art. 98. While the SG performs functions entrusted to him by the SC, the delegation of the establishment of subsidiary organs to the SG does not remove these organs from the ambit of the SC (Art. 29). Cf. A. Paulus "Article 29", in B. Simma (ed.), The Charter of the United Nations. A Commentary, Vol. I, 539, 553 (2002); as well as D. Sarooshi, "The Legal Framework Governing United Nations Subsidiary Organs", 67 BYIL 413, 436 (1997). eb For Ruffert, direct territorial administration complies with Chapter VII through the application of the implied-powers doctrine developed by the ICJ. See M. Ruffert, "The Administration of Kosovo and East Timor", 50 ICLQ 613, 620 (2001).
8' UN Doc. SC Res. 1246 (1999), 11 June 1999, based on the Agreement Regarding the Modalities for the Popular Consultation of East Timor Through a Direct Ballot, 5 May 1999. Res. 1246 based the justification for the creation of UNMET both on the Agreement and on earlier GA pronouncements affirming East Timor's right of self-determination as non-self-governing territory (compare the references in SC Res. 1264 to GA Res. 1514 (XV), 1541 (XV) and 2625 (XXV) via SC Res. 1236). 88 UN Doc. SC Res. 1264 (1999), 15 September 1999. Whether the reference to Chapter VII was a legal necessity or not, remains contested. Indonesia had in principle expressed its readiness to accept an international peacekeeping force in the May Agreement. In itself, this would have been eliminated the barrier of domestic jurisdiction established by Art. 2(7) of the UN Charter. Invoking Chapter VII, had, however, the practical advantage that the Security Council could vest the multinational force with a robust mandate that included the use of "all necessary measures", including the use of force. In addition, as Rothert observes, "had the Security Council not acted under the authority of Chapter Vll, INTERFET would have been subject to Indonesia's withdrawal of consent" (supra note 1, at 274). 89 J. B. Sills, "United Nations Peacekeeping: The Years Past, The Years Ahead", 24 Denver JIL& Pol. 451 (1996). On multi-dimensional peacekeeping operations see R. S. Lee, "Peacekeeping, Peacemaking and Peacebuilding: A Role of the United Nations in Global Conflict", 28 Cornell IU 619, 624 (1995). 9° Report of the Secretary General on the Situation in East Timor, UN Doc. S/1999/1024 (1999), para. 25.
9' UN Doc. SC Res. 1272 (1999), 25 October 1999. 92 UN Doc. SC Res. 1272 (1999), 25 October 1999, adopted under Chapter VII of the UN Charter. For discussion of East Timor's ambiguous status under international law before the deployment of UNTAET, see Rothert, supra note 1, at 266. 94 J. Chopra, "Introductory Note to UNTAET Reg. 13 (2000)", 39 ILM 937 (2000). 9s 9 Australian Treaty Series 2000, quoted by A. Zimmermann/C. Stahn, "Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo", 70 Nordic JIL 423, 435 (2001). 96 J, Chopra, "The UN's Kingdom of East Timor", 42 Survival 27 (2000). 9' Zimmermann/Stahn, supra note 95, at 434. 98 It may not be without any insignificance in this connection that in the opinion of a number of writers the residual sovereignty over territories placed under Mandate rested with the League of Nations. See authorities cited in L. Oppenheim, International Law. A Treatise, Vol. 1 - Peace (8`" ed. by H. Lauterpacht, 1955), 222, No. 5. This view implied that the League was endowed with sufficient international personality to possess such sovereignty.
99 Statement of Singapore on the Situation in Kosovo, 27 March 2002, UN Doc. S/PV, 4498.
after June 1999, some courts in Kosovo were relocated into courts in Serbia proper and to the northern part of Kosovo. Though UNMIK has worked to dismantle the parallel courts and establish a unified justice system, Belgrade continues to actively violate Res. 1244 (1999) by supporting illegal parallel structures, in particular in the municipalities of Leposavic, Zvecan, Zubin Potok and the northern part of Mitrovica municipality. In the field of health care, the Serb Ministry for health has aggressively pressured Kosovo Serbs not to co-operate with UNMIK, e.g., by openly demanding health workers not to follow instructions of Kosovo authorities and withdrawing social benefits from Kosovo Serbs who work with UNMIK. A similar pattern has occurred in education with Belgrade authorities effectively running Serbian language schools in Kosovo. The recent foundation of two Unions of Serb Municipalities in Mitrovica and Gnjilane regions bears the marks of initial steps toward canton-like territorial units. Furthermore, Belgrade continues to run a parallel system of paying pensions to Kosovo Serbs. See the recent OSCE Mission in Kosovo Report on Parallel Structures in Kosovo, October 2003, as well as Parallel Security Structures in North Mitrovica, 21 May 2002. For UNMIK's (unimplemented) strategy to combat parallel structures see M. Steiner, A Choice for Mitrovica. The Seven Point Plan, 1 October 2002.
101 International Status of South-West Africa, Advisory Opinion of 11 July, 1950 ICJ Reports 128, 131. 102 Island of Palmas case (U.S. v. Netherlands), 2 RIAA 867 (1928). '03 A. Yannis, "The Concept of Suspended Sovereignty in International Law", 13 EJIL 1037, 1038 (2002). 104 S�S/1244, 10 June 1999.
105 "Interview with Ratko Markovic, Deputy Prime Minister of Serbia, in Kosovo and Yugoslavia: Law in Crisis", debate forum on http://www.jurist.law.edu, quoted by M. G. Brand, Kosovo Under International Administration: Statehood, Constitutionalism and Human Rights, Dissertation, University of Vienna, 82 (2002). 'ob UNMIK/REG/1999/1 of 25 July 1999, "On the Authority of the Interim Administration in Kosovo", para. 1.1. The self-authorisation of the administration contained in the first regulation is equally comprehensive and absolutist in the case of UNTAET whose first Regulation stipulates that "all legislative and executive authority with respect to East Timor, including the administration of the judiciary, is vested in UNTAET and is exercised by the Transitional Administrator" (UNTAET/REG/1999/1, "On the Authority of the Transitional Ad- ministration in East Timor", section 1.1). For a critical analysis see Korhonen, supra note 2, at 499. 107 UNMIK/REG/1999/1, at section 4. ios Ibid. '°9 "Report of the Secretary General on the United Nations Interim Administration in Kosovo", S/1999/779, 12 July 1999, para. 41.
"° Ibid., at para. 44. See also UNMIK/REG/2001/19, "On the Executive Branch of the Provisional Institutions of Self Government in Kosovo", 13 September 2001, which stipulates that the SRSG "shall have the final authority to interpret the scope and any other parameters of the executive responsibilities of the Provisional Institutions of Self-Government set out in the present regulation" (section 19). "' Ruffert, supra note 86, at 623. With reference to Bosnia and Herzegovina, Cox concludes that the High Representative came to "occupy a unique position within the domestic legal system, being both a part of the domestic constitutional order, and at the same time superior to it. The international legal system assumed the capacity to act directly within a domestic constitutional process, without the intermediate level of state responsibility". M. Cox, The Making of a Bosnian State: International Law and the Authority of the International Community, Ph. D./University of Cambridge, 91 (2001). See also the discussion on 'dual functionality' below. 112 As argued by C. Stahn, "United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis", 5 Max Planck Yearbook of United Nations Law 105, 146 (2001). "3 For an account of some of the problems surrounding the subsidiary applicability of FRY and Serbian municipal statutes in Kosovo, see Brand, supra note 105, at 147 et seq., and Ombudsperson in Kosovo, "Certain Aspects of UNMIK Reg. No. 2000/59 Amending UNMIK Reg. No. 1999/24 on the Law Applicable in Kosovo", 27 October 2000, Special Report No. 2, 30 May 2001. For a similarly problematic situation in East Timor, see D. Fitzpatrick, "Developing a Legal System in East Timor", 5 ARIEL 5, 15 et seq. (2000).
114 I. Berishie/B. Knoll, et al., "OSCE Mission in Kosovo-Two Years Into Institution Building, in: International Organisations in Kosovo: Finding the Path through the Maze", 4 Favorita Papers 5 (Diplomatic Academy Vienna, 2001). "s For two concise studies on the constitutional history of Kosovo and recent attempts to build political institutions and processes cf. Brand, supra note 105, at 87 et seq., and C. Stahn, "Constitution Without a State? Kosovo Under the United Nations Constitutional Framework for Self-Government", 14 Leiden JIL 53I, 558 et seq. (2001). ). "6 This expression was used by the Kosovo Ombudsperson Institution in a study entitled "On the Compatibility With Recognised International Standards of UNMIK Reg. No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000), and on the Implementation of the Above Regulation", Ombudsperson Institution, Special Report No. 1 (26 April 2001), at 8. 1 More specifically, the UNHCR was put in charge of the preparation of the winterisation and humanitarian aid programme in the framework of Pillar I; Pillar 11/UN was given the responsibility of the civil administration and the management of public affairs (in particular, to revive health, education, and other public services); Pillar III/OSCE was given the portfolio of democratisation and institution building (that included the promotion of independent media, the organisation of elections, the training of a local police force, and a human rights monitoring brief); and Pillar IV/EU was put in charge of coordinating the economic reconstruction of key infrastructure and other economic and social systems such as the development of a market-based economy, the co-ordination of international financial assistance, and the resolution of trade, currency and banking matters. After UNHCR had left the Pillar structure in June 2000, a new Pillar I responsible for Law Enforcement and Justice was created in spring 2001. It is tasked to ensure the integration and coordination of functions that would under different circumstances be carried out by Ministries of Justice and Interior and includes the Kosovo Police Force, the local judiciary,
and the local corrections service (cf. "UNMIK at a Glance", available at http://www. unmikonline.org/intro.htm). "8 Res. 1244 (1999), para. 5. "9 Ibid., at para. 6. Yannis comments that the "[d]ualism at the top of the command of an international administration ... reflects the reluctance of key NATO states to place their military forces under UN command, which inevitably creates an accountability gap". A. Yannis, "Kosovo Under International Administration", 43 Survival 31, 32 (2001). 120 UNMIK/REG/2001/9, "On a Constitutional Framework for Self-Government", 15 May 2001. For a full analysis see Stahn, supra note 115, as well as B. Knoll/K. Johnston Molina, "A Rocky Path: Kosovo's Transition To Provisional Self-government. General Elections in 2001 And Beyond", in 8 OSCE-Yearbook 131 (2002, Institute for Peace Research and Security Policy/IFSH of the Hamburg University). 121 UNMIK/REG/2001/9, para. 1.2. 122 Ibid., at para. 1.1 (emphasis added). 123 Ibid., preamble.
'2' Res. 1244 (1999), para. 11(d). 125 UNM1K/REG/2001/9, chapters 5 and 9. 126 See UNMIK/PR/930 of 7 March 2003, available at http://www.unmikonline.org and an internal O/SRSG Paper, "Terms of Reference, Tasking and Membership of the Working Groups", of 15 April 2003 (on file with the author). Parallel to the transfer competencies on central level, the SRSG announced to fully devolve executive responsibilities to the most successful municipalities, and withdraw into a monitoring and oversight function. See "UNMIK Internal Discussion Paper: Transfer of Responsibilities to the PISG at the Municipal Level", 12 February 2003 (on file with the author). 127 These are the areas of functioning democratic institutions, rule of law, freedom of movement, returns and reintegration, economy, property rights, dialogue with Belgrade, and the Kosovo Protection Corps. See "UMIK Benchmark Table", 20 April 2002, as well as the notes from UNMIK's Dubrovnik Retreat between 21-22 April 2002 (both on file with the author). 'z8 Cf. "Declaration of the Peace Implementation Council", as well its Annex, Brussels, 24
May 2000, available at http://www.ohr.int/pic and European Stability Initiative (ES1), "Turning Point: The Brussels PIC Declaration and State-Building Agenda for Bosnia and Herzegovina", 7 June 2000, available at http://www.esiweb.org/reports/bosnia. `z9 Cf., e.g., European Commission External Relations Directorate Western Balkans, "Report on the Third Meeting of the Kosovo Sap Tracking Mechanism (STM)", Pristina, 26/27 November 2003 (on file with the author). `3o Carlowitz, supra note 84, at 337. 131 UNMIK/REG/2001/9, preamble.
132 Ibid.., chapter 12. A paper prepared by the Office of the SRSG (O/SRSG) argues that almost every PISG activity "can touch UNMIK's 'strategic' heights", the mission's core responsibilities. The paper is, in its way, indicative of the inability to 'let go' competencies, arguing that a simple division of powers into 'reserved' and 'transferred' areas is "incomplete and somewhat misleading". It suggests a "rising scale of intervention" in response to a problem regarding transferred executive functions. This is somewhat in conflict with the SRSG's public announcement not to "overrule the Provisional Institutions on matters within their competence" except when they act in breach of Res. 1244 or the Constitutional Framework (UNMIK Press Release of 7 March 2003). Cf. O/SRSG Paper, "Monitoring Intervention", 13 February 2003 (on file with the author). `33 See Chapters 12 and 14, para. 3 of the Constitutional Framework. According to another O/SRSG working paper, the reversion of competencies to LTNMIK remains a punitive option, along with the reversal of a certain decisions, the withholding of funds by UNMIK, and the removal of officials from office, and, as a measure of last resort, their criminal prosecution (O/SRSG Working Document, "Types of Intervention", 17 February 2003, on file with the author). 134 This follows from the Chapter 9.4.11 of the Constitutional Framework which limits the jurisdiction of the Special Chamber of the Supreme Court on Constitutional Framework Matters to the control of laws adopted by the Kosovo Assembly and to disputes among the provisional institutions. This is especially problematic because UNMIK has retained sole administrative authority over justice and law enforcement, areas which are closely intertwined
with human rights guarantees. The rights of Kosovans to seek review of and redress for alleged violations of their rights by UNMIK and KFOR remain unclear. See D. Marshall/ S. Inglis, "The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo", 16 Harvard Human Rights Journal 95, 108 et seq. (2003). '3s M. G. Brand, "Institution-Building and Human Rights Protection in Kosovo in the Light of UNMiK Legislation", 70 Nordic JIL 461, 463 (2001). `36 "Report of the Secretary-General on the United Nations Interim Administration in Kosovo", S/1999/1159 (23 December 1999), para. 35. 137 Stahn, supra note 115, at 541 (emphasis added) and also id., supra note 112, at 119. '3$ Ibid., at 540. `39 Stahn, supra note 112, at 119. 140 Ringelheim, supra note 24, section 2.2. 141 H. Lauterpacht, "The International Personality of the United Nations. Capacity to Administer Territory", 5 ICLQ 409-513 (1956), and H. Kelsen, The Law of the United Nations 195- 197, 684-687 (1950).
142 Compare the Legal Status of Eastern Greenland case in which the PCIJ held: "A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority". Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 April 1933 PCIJ (Ser. A/B), No. 53, at 45-46. 143 Crawford concludes that the concept of sovereignty is inapplicable to international regimes of divided competencies such as the mandate and trusteeship systems, J. Crawford, The Creation of States in International Law 366 (1979). Brownlie asserts that the UN cannot have territorial sovereignty, although it has been prepared to assume administrative functions in the context of maintaining peace and security, Brownlie, supra note 7, at 175. For arguments that sovereignty could conceivably reside with the UN if it were to acquire proprietary interests, see R. E. Gordon, "Some Legal Problems With Trusteeship", 28 Cornell ILJ 301, 342 (1995). 144 Res. 1244 (1999), para. 11(e), with reference to the Rambouillet accords (S/1999/648). '45 Ibid., para. 11(f) 146 W. O'Neill, "Kosovo: Unexpected Barriers to Building Peace and Security, in Honoring Human Rights Under International Mandates. Lessons from Bosnia, Kosovo, and East Timor. Recommendations to the United Nations", Aspen Institute Justice and Society Program 76 (2003).
"' Para. 3 of the preamble of UNTAET/REG/1272, 25 October 1999. '°8 See "Report of the Secretary-General", 12 July 1999, supra note 109, at para. 35. 'a9 T. H. Irmscher, "The Legal Framework for the Activities of the United Nations Interim Administration in Kosovo: The Charter, Human Rights, and the Law of Occupation", 44 German YIL 353, 365-366 (2001). ). �so Referring to East Timor, Yannis suggests that "[s]uspension of sovereignty signifies rather that sovereignty is not an applicable legal concept any more and what matters is what are the rights and obligations of the UN transitional authority regarding the administration of the territory", supra note I03, at 1048.
lsl Cox, supra note 111, at 2. 152 The Brahimi Report places those two post-Cold War Missions in a class of their own as responding to `extreme' situations: "United Nations operations were given executive law enforcement and administrative authority where local authority did not exist or was not able to function." Report of the Panel on United Nations Peace Operations, 39 ILM 1432, 1443, para. 19 (2000). Matheson (supra note 50, at 83) describes "the novel .... undertakings in Kosovo and East Timor". For Strohmeyer, the "scope of the challenges and responsibilities deriving from these mandates [UNMIK and UNTAET] was unprecedented in United Nations peacekeeping operations"; H. Strohmeyer, "Collapse and Reconstruction of a Judicial System: the United Nations Missions in Kosovo and East Timor", 95 AJIL 46, 46 (2001)).
's3 A. James, "The Concept of Sovereignty Revisited", in Schnabel/Thakur, supra note 5, 334, at 337. 154 For the analogous application of the general principles constraining trusteeship authorities to present international territorial administrations, see Stahn, supra note 112, at 36.
155 R. Wilde, "From Danzig to East Timor and Beyond: The Role of International Territorial Administration", 95 AJIL 583, 599 (2001).
`sb The discourse on the 'dual functionality' of international administrations, initially at the core of the constitutional debate surrounding the continued existence of an organised state entity Germany under Allied command, was transposed into the Bosnian context by the BiH Constitutional Court in 2000. It held that the High Representative, charged with the overall implementation of the Dayton Agreement, would act both as national organ of BiH and as an international authority when adopting decisions in the form of national law of BiH. Referring to Germany and Austria placed under international administration after WWII, the Court suggested that "[a]cts by such international authorities were often passed in the name of the States under supervision. Such situation amounts to a sort of functional duality: an authority of one legal system intervenes in another legal system, thus making its functions dual...In the present case, the High Representative...intervened in the legal order of [BiH] substituting himself for the national authorities. In this respect, he therefore acted as an authority of [BiH] and the law which he enacted is in the nature of national law and must be regarded as a law of [BiH]". See Case No. U 9/00 (Request for Evaluation of Constitutionality of the Law on State Border Service), Constitutional Court of BiH, 3 November 2000, para. 5 et seq. Cf. also Stahn, supra note 112, at 70 et seq. 157 Referring to territories under the Trnsteeship system, Stahn suggests that "UN involvement in rebuilding post-civil war societies is somewhat less ambitious because it is not necessarily dependent on the achievement of a certain territorial status but may be restricted to the internal reconstruction of the territory 'in trust' trough the reform of the local institutions, the protection of human rights and the establishment of formal and informal processes of political participation". Cf. Stahn, supra note 112, at 31. `s8 For a detailed critique of the inconsistent, non-transparent, and exclusive articulation of broad policy goals by UNMIK, its structural tensions with democratic governance, and the lack of judicial review of its actions, see Marshall/Inglis, supra note 134, at 95-146. 's9 Wilde, supra note 155, at 552.
`bo C. Grossmann/D. D. Bradlow, "Are We Being Propelled Towards a People-Centered Transitional Legal Order?", 9 Am. U. Int'l L. Rev. 1, 21 (1993). `6` See, e.g., UN Doc. S/2000/538, Cooperation Agreement on Cross-Border Economic Issues with fYRoM of 7 March 2000, 6 June 2000. 162 In a similar vein, Ruffert, supra note 86, at 626. A number of writers also seems to agree that, in the discharge of its responsibilities, the UN Council for Namibia appeared to have acted in a dual capacity - as an organ of the UN and as the administering authority for Namibia. This duality of status has been confirmed by GA Res. A/RES/32/9F of 11 November 1977 which stipulated the functions the Council should exercise 'as an organ of the United nations' and those it should undertake 'as the legal Administering Authority for Namibia'. Cf. Osieke, supra note 67, at 193. With reference to East Timor, UNTAET signed a Memorandum of Understanding with the Australian government in 2001 to continue the regime exploiting the resources in the Timor Gap until independence, and "it did so 'on behalf of East Timor', and the agreement would seem to be binding between East Timor and Australia, rather than between the United Nations and Australia." Cf. R. Wilde, "The Complex Role of the Legal Adviser When International Organizations Administer Territory", 95 ASIL Proceedings 251, 252, No. 6 (2001). Cf. also D. M. Ong, "The Legal Status of the 1999 Australia-Indonesia Timor Gap Treaty Following the End of Indonesia's Rule in East Timor", 31 NYIL 67 (2000), particularly the postscript dealing with the MOU, at 123. Similarly, Stahn, supra note 112, at 177. 163 There has hardly been any progress in finding doctrinal consensus on the treatment, under international law, of quasi-governmental authority stuck somewhere in transition somewhere between an international nihil and statehood. The discussion on whether non-state territorial
and other transitional entities can acquire (derivative) international legal personality based on considerations of functional necessity cannot be entered here in detail. For an account of arguments in favour of (partial) legal personality of de facto regimes cf. M. Schoiswohl, Status and (Human Rights) Obligations of Non-Recognised De Facto Regimes in International Law. The Case of 'Somaliland': State Collapse, Secession, Non-Recognition and Human Rights, Dissertation, University of Vienna, at 174 et seq. (2001). 16a F. Nazi, "The Need for Accountability", 488 IWPR Balkan Crisis Report, 23 March 2004. �6s Wilde, supra note 155, at 256. 166 Echoing a widespread sentiment among the population, Kosovo PM Bajram Rexhepi harshly criticised UNMIK in October 2003 and commented that "being ruled 5,000 miles away in New York is simply not working", adding that "with no road maps, or political deadlines, or
sense of resolving their unclear international status as a non-state entity, Kosovars are fast losing hope". See H. Smith, "Angry Kosovars Call on 'Colonial' UN Occupying Force to Leave", The Observer, 19 October 2003, available at http://observer.guardian.co.uk/ international/story/0,6903,1066231,OO.html. '6' W. van Meurs, "Kosovo's Fifth Anniversary - On the Road to Nowhere?", Center for Applied Policy Research (CAP, Bertelsmann Stiftung), Working Paper, March 2004, 3. 168 Res. 1244 (1999), para 11(a).
169 While underscoring the hypothetical nature of the case, it should also be kept in mind that only the UN General Assembly and the SC can request the ICJ to give an Advisory Opinion on "any legal question" (Art. 96(1) UN Charter) pertaining to "other organs of the UN and specialized agencies". De lege lata, Member States or third parties external to the United Nations have no right to request an advisory opinion of the ICJ. Further, the ICJ has no power of judicial review of decisions of UN organs. Cf. K. Zemanek, "Is the Security Council the Sole Judge of Its Own Legality?", in E. Yakpo/T. Boumedra (eds.), LiberAmicorum - Mohammed Bedjaoui 629, 631 (1999).
'�° H. Hausmaninger/W. Selb, R6misches Privatrecht 210 (1991). "' Ruffert, supra note 86, at 620.
172 Adopted from A. Verdross/B. Simma, Universelles V61kerrecht. Theorie und Praxis 657 (1984). "3 Adopted from the Lighthouses in Crete and Samos case, in which the PCIJ held that in 1913 the islands of Crete and Samos were under the sovereignty of Turkey, which therefore had the power to grant or renew concessions with regard to the islands. Though autonomous, Crete had not ceased to be part of the Ottoman Empire. Even though the Sultan had to accept restrictions to the exercise of his sovereign rights, "sovereignty had not ceased to belong to him", Lighthouses in Crete and Samos (France v. Greece), Judgment of 8 October 1937, PCIJ Ser. A/cB, No. 71, at 103. 174 Cf. Judge Dillard who stated in his separate opinion in the Western Sahara case that "it is for the people to determine the destiny of the territory and not the territory the destiny of the people" (ICJ Reports 1995, at 122).