Governance beyond the state: Issues of legitimacy in international territorial administration

International Organizations Law Review

Volumn 2, Issue 1, 2005, Pages 9-56

  Stahn, Carsten ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b LEIDEN UNIVERSITY   (Netherlands)

Author keywords

[No Author keywords available]

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EID: 42949118896     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/1572374054798350     Document Type: Article

References (297)

1. See Benedict Kingsbury, "The International Legal Order", in Oxford Handbook of Legal Studies (Peter Cane & Mark Tushnet, eds., 2003), 271, at 289.
2. See Daniel Bodansky, "The Legitimacy of International Governance: A Coming Challenge for International Environmental Law", American Journal of International Law, Vol. 93 (1999), 596;
3. Daniel C. Esty, "The World Trade Organization's Legitimacy Crisis", World Trade Review, Vol. 1 (2002), 7
4. R.O Keohane & J.S. Nye, Jr., "The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy", in Effciency, Equity and Legitimacy: The Multilateral Trading system at the Millenium (Roger Porter et al., eds. 2001), 264.
5. See generally Ralph Wilde, "Representing International Territorial Administration: A Critique of Some Approaches", European Journal of International Law, Vol. 15 (2004), 71;
6. "From Danzig to East Timor and Beyond: The Role of International Territorial Admin istration", American Journal of International Law, Vol. 95 (2001), 583;
7. Simon Chesterman, You, the People: The United Nations Transitional Administration, and State-Building (2004), at 48;
8. Richard Caplan, International Governance of War-Torn Territories (2005), id. A New Trusteeship? The International Administrations of War-Torn Territories (2002);
9. Erikade Wet, "The Direct Administration of Territories by the United Nations and its Member States in the Post Cold-War Era: Legal Bases and Implications for National Law", Max Planck Yearbook of United Nations Law, Vol. 8 (2004), at 291-340;
10. Michael Bothe & Thilo Marauhn, "UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration", in C. Tomuschat (ed.), Kosovo and the International Community (2002), 217;
11. M. J. Matheson, "United Nations Governance of Postconfict Societies", American Journal of International Law, Vol. 95 (2001), 76
12. Steven R. Ratner, The New UN Peacekeeping: Buikding Peace in Lands of Confict after Cold War (1994), 97-116
13. Carsten Stahn, "The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis", Max Planck Yearbook of United Nations Law, Vol. 5 (2001), 105
14. "International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges Ahead", Zeitschrift fur ausldndisches öffentliches Recht und Völkerrecht, Vol. 61 (2001), 108
15. "Justice Under Transitional Administration Contours and Critique of a Paradigm", Houston Journal of International Law, Vol. 27 (2005), 311.
16. See Article 21 of the Annex and Article 102 of the Treaty of Versailles. The United Nations Temporary Executive Authority (UNTEA) assumed direct and exclusive responsibility over West Irian in accordance with Agreement between Indonesia and the Netherlands Concerning West New Guinea (West Irian) of 15 August 1962, UNTS Vol. 437, at 274.
17. For a survey, see Rosalyn Higgins, United Nations Peacekeeping 1946-1967, Vol. II, Asia (1970), 93-149.
18. In 1967, the General Assembly created the UN Council for Namibia [t]o administer South West Africa until independence, with the maximum possible participation of the people of the Territory". See GA Res. 2248 (S-V) of 19 May 1967.
19. The Agreements on a Comprehensive Political Settlement of the Cambodia Confict of 23 October 1991 (Paris Agreements) entrusted the United Nations Transitional Authority in Cambodia (UNTAC) with key aspects of civil administration.
20. See Articles 2 and 6 of the Paris Agreements, in I.L.M. Vol. 31, at 183.
21. The Security Council established UNTAC by SC Res. 745 (1992).
22. For a discussion, see Michael W. Doyle, UN Peacekeeping in Cambodia: UNTAC's Civil Mandate (1995), 13.
23. In its Resolution 814 of 26 March 1993, the Security Council charged UNOSOM II with a broad mandate, including the reconstruction of the Somali police and justice system, the establishment of regional councils and the maintenance of law and order.
24. See para. 3 14 of SC Res. 814 (1993). For a discussion, see Jarat Chopra, Peace-Maintenance: The Evolution of International Political Authority (1999), at 123-160.
25. Following the conclusion of the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium on 12 November 1995, the Security Council created the United Nations Transitional Administration for Eastern Slavonia (UNTAES) in order to prepare the local population for the full transfer of authority to Croatian rule. See SC Resolution 1037 (1996) of 15 January 1996.
26. See generally Derek Boothby, "The Political Challenges of Administering Eastern Slavonia", Global Governance, Vol. 10 (2004), 37-51.
27. Annex 10 of the Dayton Peace Agreement envisaged the creation of the Offce of the High Representative (OHR), which was charged with " nal authority" regarding the civilian implementation of the terms of the agreement.
28. See The General Framework Agreement for Peace in Bosnia and Herzegovina of 14 December 1995, Annex 10.
29. For a discussion, see David Chandler, Bosnia: Faking Democracy After Dayton (1999).
30. Security Council Resolution 1244 (1999) authorized the Secretary-General to establish the United Nations Interim Mission in Kosovo (UNMIK).
31. For a discussion of the early practice, see Alexandros Yannis, Kosovo under International Administration: An Unfnished Confict (2001).
32. Security Council Resolution 1272 (1999) created the United Nations Transitional Ad ministration in East Timor (UNTAET).
33. For a discussion, see Anthony Goldstone, "UNTAET with Hindsight: The Peculiarities of Politics in an Incomplete State", Global Governance, Vol. 10 (2004), 83-98.
34. The Security Council mandated the Coalition Provisional Authority (CPA) to "to promote the welfare of the Iraqi people through the effective administration of territory, including in particular working towards the restoration of conditions in which the Iraqi people can freely determine their own political future".
35. See para. 4 of SC Res. 1483 (2003). A rare exception is Méir Ydit, Internationalised Territories: From the 'Free City of Cracow' to the 'Free City of Berlin' (1961).
36. See Report of the Panel on United Nations Peace Operations, UN Doc. S/2000/809 of 21 August 2000, para. 78.
37. See International Commission on Intervention and State Sovereignty, The Responsibility Protect, December 2001, at 43, para 5.22.
38. For a suggestion to that effect, see Netherlands Advisory Council on International Affairs & Advisory Committee on Issues of Public International Law, Failing States, A Global Responsibility, No. 35, May 2004, at 82-83.
39. The report suggested the creation of Security Council "Committee on UN Administration and Governance Assistance", which could potentially "take over some or all of the state's sovereignty in the name of the international community as embodied by the UN and would be responsible for administrative tasks".
40. See Report of the High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/565, paras. 262-264.
41. The Council of Namibia issued, inter alia, Decree No. 1 for the Protection of the Natural Resources of Namibia of 27 September 1974 on the basis of its mandate under Resolution 2248 (S-V).
42. The UN Special Representative in Somalia declared that the former Somali Penal Code of 162 was the criminal law in force in Somalia.
43. For a critique, see Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (1999), at 63.
44. UNTAC elaborated, inter alia, Transitional Criminal Provisions for Cambodia in its Directive No. 93/1.
45. See UN Third Progress Report of the Secretary-General on UNTAC, UN. Doc. S725154of 25 January 1993, para. 103.
46. The OHR in Bosnia adopted a wide range of laws and executive decisions. For a survey, see the list of OHR decisions at .
47. UNTAET administrator abrogated legislation enacted by the local Serb authorities and restored Croatian law by a directive issued on 29 May 1997, which ordered the region's judiciary "to apply Croatian law for all new cases as from 1 June 1997".
48. See para. 23 of the Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN.
49. Doc S/1997/953 of 4 December 1997. UNMIK and UNTAET were vested with the power to enact laws and regulations. For a survey, see Stahn, The United Nations Transitional Administrations in Kosovo and East Timor, at 145-159.
50. On lawmaking by UNMIK, see also Leopold von Carlowitz, "UNMIK Lawmaking Between Effective Peace Support and Internal Self-Determination", Archiv des Völkerrechts, Vol. 41 (2003), 336-393.
51. The CPA has issued directly applicable regulations and orders affecting all aspects of civil administration. For a full list, see .
52. For this analogy, see Jarat Chopra, "The UN's Kngdom of East Timor", Survival 42 (2000), 27
53. "Introductory Note to UNTAET Regulation 13", ILM Vol. 36 (2000), at 936-938.
54. See Tarak Barkawi & Mark Laffey, "The Imperial Peace: Democracy, Force and Globalization", European Journal of International Relations, Vol. 5 (1999), 403, at 407.
55. For a discussion, see also August Reinisch, "Governance Without Accountability", German Yearbook of International Law, Vol. 44 (2001), 270, at 284
56. See Roland Paris, "Peacebuilding and the Limits of Liberal Internationalism", International Security, Vol. 22 (1997), 54, at 58.
57. See also Mohammed Ayoob, "Third World Perspectives on Humanitarian Intervention and International Administration", Global Governance, Vol. 10, No. 1, Jan.-March 2004, 99-118
58. See Art. 43 of the Hague Regulations and Art. 64 of the Fourth Geneva Convention. See also Brahimi Report, para. 77 of the Brahimi Report.
59. In the context of Kosovo, see for instance, UNMIK Regulations No.16/1999 of 6 November 1999 (Central Fiscal Authority) and No. 20/1999 of 15 November 1999 (Banking and Payment Authority).
60. For a contemporary critique, see Roland Paris, At War's End (2004).
61. See Ian Johnstone, "UN Peace-Building: Consent, Coercion and the Crisis of State Failure", From Territorial Sovereignty to Human Security (Canadian Council on International Law, 2000), 186, at 196.
62. This point was made by the Special Representative of the Secretary-General in East Timor, Siergo Vieira de Mello, in one of his first interviews: "[T]he philosophy of the United Nations is one of cooperation.
63. There is no intention whatsoever of imposing structures, ideas or imported models. It is up to the Timorese people to build their future, we are there to help them".
64. See Johnstone, supra note 32, at 196.
65. The best proof is the adoption of the Constitutional Framework for Provisional Self-Government in Kosovo, which bears many traces of a modern Constitution or the new Constitution of East Timor, which is modelled after Western democracies.
66. For a discussion of the Constitutional Framework in Kosovo, see Carsten Stahn, "Constitution without a State?, Kosovo under the United Nations Constitutional Framework for Self-Government", Leiden Journal of International Law, Vol. 14 (2001), 531.
67. See also Claudio Grossman & Daniel D. Bradlow, "Are We Being Propelled Towards a People-Centered Transnational Legal Order?", American University Journal of International Law and Policy, Vol. 9 (1993), 1 at 21 (noting that "[peacekeepers relate to the general population within the country in much the same way that governmental actors relate to the population within a country. This suggests that the international community, in defning the mandate and in the execution of these operations, needs to ensure that the international peacekeepers perform their responsibilities to these private actors to the same extent and in a comparable manner to what would be expected of a national government").
68. See also Elizabeth Abraham, "The Sins of the Saviour: Holding the United Nations Accountable to International Human Rights Standards for Executive Order Detentions in its Mission in Kosovo", American University Law Review, Vol. 52 (2003), 1291.
69. For a similar argument in the context of the WTO, see David Henderson, "WTO 2002: Imaginary Crisis, Real Problems", World Trade Review, Vol. 1 (2002), 277, at 279-280.
70. See Section 1 of UNMIK Regulation No. 1/1999 of 25 July 1999 (On the Authority of the Interim Administration in Kosovo) and Section 1 o UNTAET Regulation No. 1/1999.
71. Chopra compared the United Nations Transitional Administration in East Timor to a "pre-consti tutional monarch[y] in a sovereign kingdom". See Chopra, The UN's Kingdom of East Timor, at 29.
72. See Report of the Secretary-General on the United Nations Interim Administration in Kosovo, 12 July 1999, UN. Doc. S/1999/770, para. 35.
73. The relevant provision of Regulation No. 1999/1 on the Authority of the Interim Administration in Kosovo of 10 June 1999 reads: "1. All legislative and executive author ity with respect to Kosovo, including the administration of Kosovo is vested in UNMIK and is exercised by the Special Representative of the Secretary-General. 2.
74. The Special Representative of the Secretary-General may appoint any person to perform functions in the civil administration of Kosovo, including the judiciary, or remove such person. Such functions shall be exercised in accordance with the existing laws, as specifed in section 3, and any regulations issued by UNMIK".
75. For a survey, see Stahn, United Nations Transitional Administrations in Kosovo and East Timor, at 122-134.
76. See Christian Tomuschat, "Yugoslavia's Damaged Sovereignty over the Province of Kosovo", in State, Sovereignty, and International Governance (Gerard Kreijen, ed., 2002), 323, at 338-339.
77. The principles of the Ahtisaari plan are contained in Annex 2 of SC Resolution 1422. The FRY gave its consent to this plan on 2 June 1999, see para. 9 of the preamble of SC Resolution 1244 (1999).
78. The FRY expressed its discontent in two Memoranda of 5 November 1999 and 6 March 2000.
79. See Tomuschat, supra note 42, at 326.
80. Security Council has the legal power to create transitional administrations under the Charter.
81. See Commission III, Committee 3, Session of 23 May 1945, UNCIO, Vol. 12, p. 353, at 354-355, UN Doc. 539 III/3/24.
82. The institutional practice of the UN confrms this approach. The Council exercised this power on various occasions in its practice (Trieste, Cambodia, Somalia, Eastern Slavonia, Kosovo, East Timor).
83. Using its Chapter VII powers, the Council may even administer a territory or a state without or against the will of the territorial sovereign. Article 2 (7) second sentence of the Charter allows an infringement on "the domestic jurisdiction" of a state in the context of Chapter VII. A strictly legal approach does not answer the question to what extent international actors are entitled to take decisions on behalf of local actors from the perspective of governmental legitimacy.
84. Note that the Security Council reaffrmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia in the preamble of SC Resolution 1244.
85. Hans Corell, the UN Legal Counsel points out that the UN Secretariat tried to assist UNMIK "in particular by reviewing the constitutional elements of the legislations, i.e. that the regulations conform to the Charter of the United Nations, to the mandates given to UNMIK by the Security Council and also respect internationally recognized standards, in particular in the feld of human rights".
86. See Hans Corell, The Role of the United Nations in Peacekeeping-Recent Developments from a Legal Perspective, Address of 1 December 2000 at the Conference: National Security Law in a Changing World, The Tenth Annual Review of the Field, at 7, available under .
87. This may be derived from Section 4 of the Regulation No. 1/1999 which states that UNMIK regulations "shall remain in force until repealed by UNMIK or superseded by such rules as are subsequently issued by the institutions established under a political settlement, as provided for in United Nations Security Council resolution 1244 (1999)". See Section 2 of UNMIK Regulation No. 23/1999.
88. International judges were equated to UNMIK civil employees in Kosovo in terms of their status.
89. This creates an appearance of undue executive inference, because the executive holds the ultimate control over the extension of contracts. Non-extension may, in particular, be a means of holding judges accountable for specifc conduct undertaken within the term of their offces which is manifestly incompatible with the independence of the judiciary.
90. Similar faws may be detected in the procedure for the removal from offce of members of the judiciary. The removal from offce of national and international judges and prosecutors may be justifed by such indeterminate grounds as "serious misconduct" or "failure in the due execution of offce".
91. For a critique of UNMIK's conception of the independence of the judiciary
92. see See OSCE Report, Review of the Criminal Justice System, September 2001-February 2002, at 25;
93. Review of the Criminal Justice System, March 2002-April 2003, at 28. See Section 1.2 of UNMIK Regulation No. 1/1999. See Section 47 (2) of UNMIK Regulation No. 45/2000.
94. See also Marcus G. Brand, "Institution-Building and Human Rights Protection in Kosovo in the Light of UNMIK Legislation", Nordic Journal of International Law, Vol. 70 (2001), 461, 470-471.
95. For a survey, see Boris Kondoch, The United Nations Administration of East Timor, Journal of Confict and Security Law, Vol. 6 (2001), 245.
96. Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, 5 May 1999, UN Doc. S/1999/513, including Annexes I-III.
97. In the Agreement of 5 May 1999 between Indonesia, Portugal and the United Nations, both parties agreed to hold a referendum under United Nations auspices, in which the people of East Timor were to be asked whether they wished to accept autonomy within Indonesia or pursue independence.
98. Portugal agreed to remove East Timor from the list of non-self-governing territories, if the people of East Timor voted in favour of the Indonesian autonomy proposal. Indonesia, on the other hand, affrmed its responsibility to "take the constitutional steps necessary to terminate its links with East Timor, thus restoring under Indonesian law the status held prior to July, 17 1976", if the people of East Timor voted against a status autonomy within Indonesia.
99. In the latter case, both parties also agreed to make "arrangements for a peaceful and orderly transfer of authority in East Timor to the United Nations", which would be charged with "enabling East Timor to begin a process of transition towards independence".
100. See Article 6 of the Agreement of 5 May 1999.
101. See Sergio Vieira de Mello, How Not to Run a Country: Lessons for the UN from Kosovo and East Timor (Unpublished manuscript) (2000)
102. Joel C. Beauvais, "Benevolent Despotism, A Critique of U.N. State-Buillding in East Timor", NYU Journal of International Law and Politics, Vol. 33 (2002), 1101.
103. See Section 3 of UNTAET Regulation No. 1/1999. See Article 5 of the Agreement between the Republic of Indonesia and the Kingdom of of the Netherlands Concerning West New Guinea (West Irian of 15 August 1962.
104. See para. 2 of SC Resolution 1037 of 15 January 1996.
105. See generally Stahn, "International Territorial Administration in the former Yugoslavia", supra note 3, at 109, 165-170.
106. See Section 2 of Coalition Provisional Authority No. 1 of 16 May 2003.
107. For a critique, see Eyal Benvenisti, Modern Law of Occupation (1993), at at 94-95.
108. See also Beauvais, supra note 57, at 1165 ("DPKO's ideological framework ensured that the state-building project in East Timor would be conceptualized as a peacekeeping operation with a strong emphasis on centralized U.N. governship").
109. See also Carla Bongiorno, "A Culture of Impunity: Applying International Human Rights Law to the United Nations in East Timor", Columbia Human Rights Law Review, Vol. 33 (2002), 623, 655.
110. Citizens, particularly minorities are highly vulnerable in the transitional period and must be protected adequately. Moreover, international control may be necessary to ensure the neutrality of the judicial system and to minimize the risks of corruption and clientelism.
111. Sergio Viera de Mello expressed the confict between the delegation of power and neutrality in the following terms: "The involvement of local leaders is a prerequisite for stability and sustainability of the UN administration. But in the absence of elections, on what basis are leaders to be chosen? Diffculties arose not only in the choice of local representa tives but also in the delegation of authority to them.
112. There is consultation, but all essential decision-making and executive authority remains with the UN". De Mello, supra note 57, quoted after Beauvais, supra note 57, at 1120.
113. UNMIK has generally been reluctant to cede its administering powers to local institutions because of the ongoing security challenges and ethnic divisions in Kosovo and the unsolved territorial status of the territory.
114. But self-government was gradually realized over time. Six months after its creation, UNMIK established a joint administrative structure which gave local representatives a share in the provisional administrative management of Kosovo.
115. The Kosovo Transitional Council (KTC), a common institution of representations of the different political parties and ethnic groups in Kosovo, was charged with a consultative role in the decision-making process.
116. See Section 2.1 of UNMIK Regulation 2000/1. Furthermore, an Interim Administrative Council (IAC) composed equally of members appointed by UNMIK and local representatives was vested with the power to recommend the adoption of new legislation or amendments to the existing legal framework.
117. See Section 4 of UNMIK Regulation 2000/1.
118. This step was complemented by the authorization of municipalities to regulate and manage a substantial share of public affairs and the establishment of Administrative Departments under the supervision of a Kosovar and an UNMIK Co-Head of Department, responsible for making policy recommendations to the IAC.
119. See UNMIK Regulation No 45/2000 of 11 August 2000 and Section 7 of UNMIK Regulation 2000/1.
120. Finally, in May 2001, UNMIK created mechanisms of shared governance and administration by transferring legislative and executive powers to domestic authorities.
121. The Constitutional Framework on Provisional Self-Government in Kosovo created a number of legislative, executive and judicial bodies (including a Parliamentary Assembly, a President, a Government and a Supreme Court with a Special Chamber on "Constitutional Framework Matters") charged with the main tasks of public administration in Kosovo. This allowed local authorities to administer their daily affairs.
122. They received regulatory powers in felds such as economic and fnancial policy, domestic and foreign trade, labour and family policy, transport and telecommunication issues and agricultural and non-resident-affairs.
123. Nevertheless, the SRSG retained his ultimate authority, including the power to oversee "the Provisional Institutions of Self-Government, its offcials and its agencies" and to take "appropriate measures whenever their actions are inconsistent with UNSCR 1244 (1999) or th[e] Constitutional Framework".
124. UNTAET placed greater emphasis on the early participation of local actors in the administration than UNMIK See Matthias Ruffert, "The Administration of Kosovo and East Timor by the International Community", International & Comparative Law Quarterly, Vol. 50 (2001), 555, at 625.
125. In response to East Timorese criticism that it failed to take due account of the views of the local population, UNTAET created the National Council and the Cabinet of the Transitional Government in East Timor.
126. While retaining the ultimate executive and legislative authority conferred upon him by the Security Council, the SRSG delegated important parts of his powers immediately to these two institutions.
127. The Cabinet, a special administering body comparable to a national government, was not only authorized to recommend to the Transitional Administrator the approval and promulgation of regulations (see Section 4 d of UNTAET Regulation 2000/23), but also charged with the supervision of the East Timor Administration (see Section 4 b of UNTAET Regulation 2000/23).
128. Furthermore, in his Regulation No. 2000/24 of 14 July 2000, the SRSG established the National Council "to act as a forum for all legislative matters related to the exercise of the legislative authority of the Transitional Administrator".
129. See Section 1.1 of UNTAET Regulation 2000/24 The Council, a body entirely composed of East Timorese, was inter alia empowered to initiate, to modify and to recommend draft regulations and to amend existing regulations.
130. See Section 2.1 a of UNTAET Regulation 2000/24.
131. Section 2.3 of Regulation 2000/24 added that the "Transitional Administrator shall approve a draft regulation or amendment endorsed by the Council upon the recommendation of the Cabinet where, in his sole discretion, the draft regulation is consistent with the fulflment of his mandate under Security Council Resolution 1272 (1999)" (emphasis added).
132. Moreover, Section 2.1 of Regulation 2000/24 introduced a mechanism of parliamentary control, by authorizing the National Council to "require the appearance of Cabinet Offcers appointed pursuant to UNTAET Regulation No. 2000/23 to answer questions regarding their respective functions".
133. In 2001, UNTAET charged a Constituent Assembly with the preparation of a Constitution for an independent and democratic East Timor, which was adopted on 22 March 2002, creating a liberal constitutional system based on a strict separation of powers and modern human rights standards.
134. The Security Council expressly called upon the CPA to cooperate with the Iraqi Govern ing Council in the exercise of its administering functions. This mandate was implemented by the CPA in CPA Regulation No. 6 which stated that 'the Governing Council and the CPA shall consult and coordinate on all matters involving the temporary governance of Iraq, including the authorities of the Governing Council'.
135. See Section 2 of CPA Regulation No. 6.
136. See also Beauvais, supra note 57, at 1169.
137. For an illustration, see the reported case of a Kosovo Albanian woman who challenged an administrative act issued by Kacanik Municipality and by the former UNMIK Department of Education and Science.
138. The woman challenged the conditions and procedure of the examination process for the position as a pre-school principal before the Municipal Court in Kacanik.
139. UNMIK invoked immunity from legal process before the Court. On 1 March 2001, Legal Counsel for UNMIK DES sent a letter to the Kacanik Municipal Court, stating in part: "[.[
140. [The Director of Kacanik MDE] is currently employed as the Director of Directorate of the Department of Education and Science, in UNMIK s Interim Administration. He is therefore, immune from legal process in respect of words spoken and all acts performed by him in his offcial capacity.
141. The immunity of UNMIK personnel is established in section 3 of UNMIK Regulation No. 2000/47 of 18 August 2000 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo." The Kacanik Municipal Court rejected this claim in a judgment of 12 March 2001 and accepted the applicant's claim as a whole and as completely founded.
142. The relevant provisions of the judgment read as follows: "The claim by Mrs. Elife Murseli from Doganaj-Kacanik, is hereby accepted as being completely founded, thus annulling the decision on 29.11.2001 on the selection of the Director of PEC "Agimi" in Kacanik as unfair and unlawful.
143. The respondent party, the Municipal Department of Education in Kacanik is obliged to select the best candidate on the basis of the open competition, in which the applicant and two other candidates applied, within 15 days from the entry into force of this decision, under the threat of forcible execution.
144. The Municipal Court in Kacanik further found that it was competent to proceed and decide on the applicant's case as it related to a violation of the rights of the applicant, a did not fall within the scope of privileges and immunities of UNMIK in sense of UNMIK Regulation 2000/47".
145. See Ombudsperson Institution in Kosovo, Report, Registration No. 122/01, Elife Murseli against The United Nations Missions in Kosovo, 10 December 2001, paras. 14-15.
146. However, UNMIK refused to enforce the judgment. The Ombudsperson Institution in Kosovo qualifed UNMIK's non-execution of the judgment as a violation of article 6 ECHR.
147. See Ombudsperson Institution in Kosovo, Elife Murseli against The United Nations Missions in Kosovo, paras. 37-49.
148. The Ombudsperson Institution was authorized to " provide advice and make recommendations to any person or entity concerning the compatibility of domestic laws and regulations with recognized international standards"-but a contrario not entitled to invalidate UNMIK legislation.
149. See Section 3 of UNMIK Regulation No. 38/2000.
150. See Bongiorno, supra note 65, at 685.
151. See Section 4.1 of CPA Order No. 98.
152. See Section 1.1 of CPA Order No. 98. One example is the OSCE, which took on the role of reviewing UNMIK regulations in the light of international human rights conventions.
153. See Charles H. Brower, "International Immunities: Some Dissident Views on the Role of Municipal Courts", Virginia Journal of International Law, Vol. 41 (2000), 1, at 35.
154. See also paras. 23, 24 and 27 of Special Report No. 1 on the Compatibility with recognized international standards of UNMIK Regulation No. 2000/47 of 26 April 2001 by the Ombudsperson Institution of Kosovo: "The main purpose of granting immunity to international organizations is to protect them against the unilateral interference by the individual government of the state in which they are located, a legitimate objective to ensure the effective operation of such organization.
155. The rationale for classical grants of immunity, however, does not apply to the circumstances prevailing in Kosovo, where the interim civilian administration in fact acts as a surrogate state.
156. It follows that the underlying purpose of a grant of immunity does not apply as there is no need for a government to be protected against itself . [N]o democratic state operating under the rule of law accords itself total immunity from any administrative, civil or criminal responsibility.
157. Such blanket lack of accountability paves the way for the impunity of the state .
158. [T]he precept of the rule of law is that the executive and legislative authorities are bound by the law and not above it . .
159. [T]he actions and operations of these two branches of government must be subject to oversight of the judiciary, as the arbiter of legality in a democratic society
160. UNMIK Regulation 2000/47 contravenes all of these principles
161. [T]he law must protect the individual against arbitrary exercises of governmental authority, inter alia, through the articulation of clear standards for the exercise of governmental authority and the provision of adequate control by independent legislative and/or judicial authorities over the exercise of powers by the executive.
162. None of these forms of protection obtain in the instant Regulation". See also Ralph Wilde, "Accountability and International Actors in Bosnia and Herzegovina, Kosovo and East Timor", ILSA Journal of International and Comparative Law, Vol. 7 (2002), 455;
163. Frederick Rawski, "To Waive or Not to Waive: Immunity and Accountability in U.N. Peacekeeping Operations", Connecticut Journal of International Law, Vol. 18 (2002), 103.
164. Paragraph 29 (h) of the Report of the Secretary-General of 4 October 1999 noted expressly that UNTAET had the obligation to "ensure the establishment and maintenance of the rule of law and to promote and protect human rights".
165. See UN. Doc. S/1999/1024, p. 7.
166. Section 2.1 of Regulation 2000/47 states that "KFOR, its property, funds and assets shall be immune from any legal process".
167. See Section 2 of CPA Order No. 17 of 26 June 2003.
168. See Report OSCE , Review of the Criminal Justice System (2001), 19 at .
169. CPA Order No. 17 reduced mechanisms of redress to internal military
170. For a general critique of functional immunity in the light of human rights standards, see Michael Singer, "Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns", Virginia Journal of International Law, Vol. 36 (1995), 53.
171. See Ombudsperson Institution, Special Report No. 1 on the Compatibility with recognized international standards of UNMIK Regulation No 47/2000 of 26 April 2001, paras. 52 et seq.
172. See Ombudsperson Institution, Special Report No. 1, supra note 59, paras. 29 et seq.
173. See Ombudsperson Institution, Special Report No. 1, supra note 59, paras. 45 et seq.
174. See Ombudsperson Institution, Special Report No. 1, supra note 59, paras. 18 et seq. and 82.
175. For a similar criticism, see European Commission for Democracy through Law, Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, 11 October 2004, paras 74 et seq.
176. An identical clause was contained in UNTAET Regulations 2000/17 and 2000/19.
177. It reads: "Pending the establishment of adequate judicial procedures for administrative matters, a person or legal entity may challenge a decision of the Deputy Transitional Administrator to uphold the original decision adverse to their interests with the competent judicial authorities in East Timor.
178. In any court proceeding arising out of or in connection with the present regulation against UNTAET or a servant of UNTAET, the court shall apply the same substantive norms as would be applicable under the procedures for administrative matters".
179. See Sections 6.4 and 6.5 of UNTEAT Regulation 2000/17 of 8 June 2000 and Sections 8.4 and 8.5 of UNTEAT Regulation 2000/19 of 30 June 2000.
180. See Bongiorno, supra note 65, at 666 and 674-678.
181. See the case of Takeshi Kashiwaga. For a full account of this case, see Bongiorno, supra note 65, at 666-676;
182. Megan A. Fairlie, "Affrming Brahimi: East Timor Makes the Case for a Model Criminal Code", American University International Law Review, Vol. 18 (2003), 1059, at 1088.
183. See Amnesty International, East Timor: Justice Past, Present and Future, Report of 27 July 2001, AI-Index ASA 57/001/2001.
184. See para. 8 of Special Report No. 2 of the Ombudsperson Institution in Kosovo: "Resolution 1244 establishes the premise that the SRSG has an obligation to observe internationally recognised human rights standards in fulflling his mandate.
185. It follows that when exercising his legislative authority to promulgate regulations and subsidiary instruments issued thereunder (cf. Section 1.1 a) of UNMIK Regulation 2000/59), the SRSG should ensure internationally recognised human rights standards are entrenched in such legal enactments.
186. It also follows that when exercising his executive authority in any capacity, the SRSG should do so within the parameters defned by the international human rights canon and with regard to any law in force in Kosovo, without distinction." Paragraph 29 h) of the Report of the Secretary-General of 4 October 1999 notes that UNTAET will have the objective to "ensure the establishment and maintenance of the rule of law and to promote and protect human rights".
187. See UN. Doc. S/1999/1024, p. 7. Para. 3 of Security Council Resolution 1272 (1999) provides that "UNTAET shall have the objectives and a structure along the lines set out in part IV of the report of the Secretary- General".
188. See Section 1.3 of UNMIK Regulation No. 24/1999 and Section 2 of UNTAET Regulation No. 1/1999.
189. Section 1.3 of UNMIK Regulation No. 24/1999 of 12 December 1999 states that "[i]n exercising their functions, all persons undertaking public duties or holding public offce in Kosovo shall observe internationally recognized human rights standards".
190. See also the critical remarks by the Ombudsperson Institution in Kosovo in para. 11 of Special Report No. 2, noting that international human rights obligations "do not only attach to public offcials in their offcial capacities, but to the institutions on behalf of whom they exercise their public functions".
191. See Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN. Doc. CCPR/C/74/CRP.4/Rev.6 of 21 April 2004, para. 10.
192. The Committee states that "States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.
193. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone with the power or effective control of that State Party, even if not situated within the territory of the State Party".
194. See also ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paras. 109-111.
195. The ICJ noted: "The travaux préparatoires of the Covenant confrm the Committeés interpretation of Article of that instrument.
196. They only intended to prevent persons residing abroad from asserting, vis-à-vis their State of origin, rights that do not fall within the competence of that State, but that of the State of residence
197. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory." The government is traditionally the organ, which oblige states in their external relations.
198. This approach is refected by Court practice.
199. See E. Lauterpacht, "The Development of the Law of International Organizations by the Decisions of International Tribunals", Recueil des Cours, Vol. 152 (1976, IV), 377, at 459-460
200. ("The reliance placed by the courts upon practice suggests that the proper view of the matter may be that when a State by appropriate internal constitutional processes becomes a party to a constituent instrument, its executive organs are vested (at least from the point of view of international law) with all appropriate authority to bind that State by participation in the activities of that organization").
201. International governance missions were frequently established after, or on the basis of a political settlement contained in an international agreement, which may be rightly viewed as "a request to the organization to exercise its power in a particular situation".
202. See Danesh Sarooshi, Some Preliminary Remarks on the Conferral by States of Powers on International Organizations, Jean Monnet Working Paper 4/2003, at 17.
203. The UN engagements in West Irian (UNTEA) and East Timor (UNTAET) were created to implement the political agreement between a former colonial ruler and the previous or future holder of public authority.
204. The basic structures of UNTAC, UNTAES and the international administration of Bosnia and Herzegovina were laid down by peace settlements (Paris Accords, Erdnut Agreement, Dayton Agreement) among formerly warring factions. UNMIK, perhaps the most authoritative governance mission of the 1990's, was formally created under Chapter VII, but following a general political settlement with the FRY (the "G-8 plan for Kosovo").
205. See James Crawford, Creation of States (1979), at 45 (" to be a state, an entity must possess a government or a system of government in general control of its territory, to the exclusion of other entities not claiming through or under it").
206. See also Thomas M. Franck, "Postmodern Tribalism and the Right to Secession" in C. Br " lmann, R. Lefeber, M. Zieck, (eds.), Peoples and Minorities in International Law, at 24 (The requirement that a state, to be eligible for recognition, be in effective control of a defned territory and population is a requisite of customary international law").
207. Jennings and Watt note: "Mere territorial changes, whether by increase or by diminution do not, as long as the identity of the State is preserved, affect the continuity of its existence or the obligations of its treaties. Changes in the government or the internal polity of a State do not as a rule affect its position in international law." Oppenheim's International Law (1996), at 146.
208. The contractual arrangement, which precedes the exercise of the power, may be rightly qualifed as a request to the Council to exercise its powers.
209. See Sarooshi, supra note 102, at 17-18. See the Report of the Secretary-General, The Rule of Law and Transitional Justice in Conf Ib ict and Post-confict Societies, para. 27. 107 }///nara 27
210. See UNMIK Press Brief ' ng of 2 July 2001, Statement on the Ombudsperson's report: "We emphasize that UNMIKs mandate was adopted under Chapter VII, which means that the situation calls for extraordinary means and force can be used to carry out the mandate." KFOR also referred to UN SC Resolution 1244 as the basis for KFOR authority to detain persons outside judicial process.
211. KFOR assumed its detention authority from the authorization to use "all necessary means" to fulfl its responsibilities and its mandate to maintain a "safe and secure environment" in Kosovo as long as "civilian authorities are unable or unwilling to take responsibility for the matter".
212. OSCE Mission in Kosovo, Department of Human Rights and Rule of Law, Kosovo, Review of the Criminal Justice System, September 2001-February 2002, at 47
213. UNMIK offcials used this explanation to justify executive detentions in Kosovo for security reasons.
214. They noted "Our position is that the authority for law and order and public safety is vested in the SRSG acting on behalf of the Secretary-General and the Security Council, according to Resolution 1244.
215. Article 15 of the European Convention on Human Rights recognizes that there may be exceptions to the conventions principles in certain emergency situations. This is acceptable in European courts. The situation in Kosovo is analogous to emergency situations envisioned in the human rights conventions.
216. Any deprivation of liberty by an Executive Order is temporary and extraordinary, and its objective is the effective and impartial administration of justice." UNMIK Press Briefng of 2 July 2001, Statement on the Ombudsperson's report.
217. Former UNTAET SRSG De Mello, who noted with respect to East Timorese participa tion: "The involvement of local leaders is a prerequisite for stability and sustainability of the UN administration. But in the absence of elections, on what basis are leaders to be chosen? Diffculties arose not only in the choice of local representatives but also in the delegation of authority to them.
218. The more powers conferred on local representatives, the closer power is to the people and thus the more legitimate the nature of the administration. But conferring power on non-elected local representatives can also have the undesired effect of furthering a particular party.
219. The inclination of the UN is thus to be cautious about delegating power in the interest of avoiding furthering any particular party." De Mello, in Beauvais, supra note 57, at 1120
220. See Commission on Human Rights, Report of the UN Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, The Present Situation of Human Rights in Iraq, Annex II, Submission from the United States of America, UN. Doc. E/CN.4/2005/4 of 9 June 2004, at 63
221. ("Establishing a secure and stable environment in Iraq has raised many challenges for Coalition forces and Iraqi security forcers. Attacks against the Iraqi people, the Coalition, and international organizations by former regime elements and foreign terrorists undermine the security and stability in Iraq.
222. Under these circumstances, it has been necessary to detain persons for imperative reasons of security."). This argument is, in particular, been developed by Carl Schmitt in his theory of emer gency powers.
223. See generally Oren Gross "The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency Powers and the 'Norm-Exception' Dichotomy", Cardozo Law Review, Vol. 21 (2000), 1820.
224. Note also that the framework of the laws of occupation fails to place administering pow ers under an obligation to further the establishment of democratic structures of governance.
225. See also J. M. Mossner, Military Government, In Encyclopaedia of Public International Law, Vol. 3(1997), at 391.
226. There is, in particular, a point in time in every mission at which the maintenance of autocratic rule on the basis of emergency powers becomes a contradiction in itself, because it runs counter the mandate of international territorial administration.
227. See the Report of the Secretary-General, The Rule of Law and Transitional Justice in Conf Ib ict and Post-confict Societies, para. 27. 116 }///nara 17
228. Utilitarist doctrines generally look at governmental authority from the angle of maximis ing general welfare and happiness.
229. For a survey, see H.L.A. Hart, Essays in Jurisprudence and Philosophy, "Utilitarism and Natural Rights" (1983), at 181.
230. See Diane F. Orentlicher, "Separating Anxiety: International Responses to Ethno-Separatist Claims", Yale Journal of International Law, Vol. 23 (1998), 1, 53-54.
231. For a qualifcation of utilitarism as a criterion of legitimacy, see also Thomas M. Franck, Fairness in International Law and Institutions (1995), 7, 22,25, 26.
232. See also the Report of the Secretary-General, The Rule of Law and Transitional Justice in Conf ict and Post-conf ict Societies, para. 22
233. ("Recent experience has demonstrated that holding elections without adequate political and security preparation and disengaging too soon can undermine, rather than facilitate the process of building the rule of law.").
234. See Samuel H. Barnes, "The Contribution of Democracy to Rebuilding Postconfict Societies", American Journal of International Law, Vol. 95 (2001), 86, at 88.
235. See Laura R. Palmer, "A Very Clear and Present Danger: Hate Speech, Media Reform, and Post-Confict Democratization in Kosovo", Yale Journal of International Law, Vol. 26 (2001), 179.
236. See the Report of the Secretary-General, The Rule of Law and Transitional Justice in Confict and Post-conf ict Societies, para. 22.
237. See also Boutros Boutros-Ghali, An Agenda For Democratization, para. 16
238. ("This is not to say that democracy is without detractors [T]he charge is made that there can be no democracy in times of trouble or war, that democracy itself leads to disorder, that democracy diminishes eff ciency, that democracy violates minority and community rights, and that democracy must wait until development is fully achieved").
239. Note also that the usual claim according to which the features of liberal democracy promote international peace cannot be transposed to the context of domestic conficts among ethnic groups.
240. Even proponents of the liberal state theory admit that "[n]o systematic evidence exists to demonstrate that liberal democracy has an equally pacifc effect on internal ethnic strife".
241. See Anne-Marie Slaughter, "Pushing the Limits of the Liberal Peace: Ethnic Confict and the 'Ideal Polity'", in International Law and Ethnic Confict (D. Wippman, ed., 1998), 128, at 143.
242. Under the consociational approach, elites directly represent the various societal segments and act to forge political ties at the centre.
243. Lijphart suggests that consociation encompasses four basic principles: a broad based coalition executive, minority veto, proportionality in the allocation of public funds and civil service positions, and group autonomy.
244. See Arend Lijphart, Democracy in Plural Societies (1977), 25.
245. Nordlinger argues that "elites alone can initiate, work out and implement confict regulating practices, therefore they alone can make direct and positive contributions to confict regulating outcomes".
246. See Eric Nordlinger, Confict Regulation in Divided Societies (1972), 73.
247. Critics of the consociational approach argue that the reliance on elite accommodation institutionalizes ethnicity. They argue that the likelihood of violent confict is reduced more effectively by institutions and practices that create incentives for the formation of coalitions and that encourage intra-group competition rather than inter-group-competition.
248. See Donald Horowitz, Ethnic Groups in Confict (1985), 14.
249. For a detailed discussion of Habermas' discursive theory and the concept of deliberative democracy, see Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, 118 (William Rehg trans., 1996).
250. UNTEA, for instance, was obliged to consult local representative Councils "prior to the issuance of new laws and regulations or the amendment of existing laws" and before appointment of new representatives to these Councils. See Article XXIII of the 1962 Agreement.
251. See Chesterman, You, The People, supra note 3, at 128-145.
252. See Bodansky, supra note 2, at 620. The Agreement on the Application of Sanitary or Phytosanitary Measures (SPS), for example, relies on the fndings of expert bodies such as the Codex Alimentarius Commission and the International Offce of Epizootics, when def ning international standards relating to food safety or animal health.
253. See Annex A, para. 3 of the SPS Agreement. The International Panel on Climate Change is for example one of the organs which has become famous for its expertise in the area of climate change. See the Report of the Secretary-General, The Rule of Law and Transitional Justice in Conf Ib ict and Post-confict Societies, para. 27.
254. Nara 30 For an argument in favour of a "human rights law governance" mandate for UNHCR in the light of its control over refugee camps, see Ralph Wilde, "Quis Custodiet Ipsos Custodes? Why and How UNHCR Governance of 'Development' Refugee Camps Should be Subject to International Human Rights Law", Yale Human Rights and Develepment Law Journal, Vol. 1 (1998), 107, at 112.
255. NGOs have been called upon to perform state-type functions in areas like health care, the re-establishment of water and sanitation systems and in the agricultural and environmental sector in the Balkans. Moreover, they have been actively involved in election monitoring since the 1990's. This process has culminated in the establishment of formal registration systems for NGO' s by UNMIK and the High Representative in Bosnia and Herzegovina.
256. See UNMIK Regulation No. 22/1999 of 15 November 1999. For a detailed survey, see Carsten Stahn, "NGO's and International Peacekeeping-Issues, Prospects and Lessons Learned", Zeitschrift fur ausldndisches öffentliches Recht und Völkerrecht, Vol. 61 (2001), 379, at 397.
257. See also the Report of the Secretary-General, The Rule of Law and Transitional Justice in Confict and Post-confict Societies, para. 17.
258. See also the Report of the Secretary-General, The Rule of Law and Transitional Justice in Confict and Post-confict Societies, para. 27
259. ("National judicial, police and corrections systems have typically been stripped of the human, fnancial and material sources neessary for their proper functioning.
260. They also often lack legitimacy, having been transformed by confict and abuse into instruments of repression.").
261. Voluntarist approaches suffer all too often from a representativity problem. Procedural and process-based mechanisms of public participation provide international authorities with a minimum degree of legitimacy towards the governed, but fail to provide satisfactory solutions for long-term forms of centralized governance.
262. The state-centered conception of legitimation through elections cannot be transposed to internationally appointed governing institutions.
263. Finally, effciency and expert legitimacy, are only partially relevant in the legitimation of the exercise of public authority by international territorial administrations.
264. See also European Court of Human Rights, Golder, para. 34, where the Court noted that "in civil matters one can scarcely conceive of the rule of law without there being a possibility of access to courts".
265. See also the early statement by the European Commission of Human Rights in the case.
266. Dyer v. United Kingdom: "Were Article 6 (1) to be interpreted as enabling a State party to remove the jurisdiction of the courts to determine certain classes of civil claims or to confer immunities from liability on certain groups in respect of their actions, without any possibility of control by the Convention organs, there would exist no protection against the danger of arbitrary power.
267. " European Commission of Human Rights, Application No. 10475/83, Graham Dyer v. United Kingdom, 9 Oct. 1984, Decisions and Reports, Vol. 39, p. 246, at 252.
268. See also Rawski, To Waive or Not to Waive, supra note 79, at 124-126.
269. See also Bongiorno, A Culture of Impunity, supra note 65, at 683;
270. Rawski, To Waive or Not to Waive, supra note 79, at 127-130.
271. The argument that an international organization may be required to provide legal redress for claims against it receives some support from the Effect of Awards Advisory opinion of the ICJ.
272. The ICJ noted that it would "hardly be consistent with the expressed aim of the Charter to provide freedom and justice for individuals . that [the United Nations] should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them." ICJ, Effect of Awards of Compensation made by the United Nations Administrative Tribunal, ICJ. Rep. 1954,47 et seq., at 57.
273. See also the jurisprudence by the European Court of Human Rights in Beer & Regan, Application No. 28934/95,18 February 1999, [1999]
274. ECHR 6 and Waite & Kenedy, Application No. 26083, 18 February 1999, [1999] ECHR 6.
275. On this jurisprudence, see August Reinisch & Ulf Weber, "In the Shadow of Waite and Kennedy", International Organizations Law Review, Vol. 1 (2004), 59.
276. One option to strengthen the existing system would be to allow local institutions to present their views in an annex, or as a response to the report fled by UN administrators to the UN Secretariat, the General Assembly or the Security Council.
277. In some situations the political institutions of the administered territories might be expressly authorized by future UN resolutions to address communications or petitions to supervisory bodies of UN administrations following the practice under Article 87, paragraph 1 (b) of the Charter or the complaint procedures under the Trieste Statute and the Jerusalem Statute.
278. In other situations, independent monitoring institutions could be authorized to address UN political bodies independently of UN administrators. This approach was adopted by the EU in the context of the administration of Mostar, where the EU Ombudsperson was entitled to make recommendations to the EU administrator and to refer matters to the EU Council in cases of disagreement with the administrator.
279. See para. 4 of EU Council Decision 94/776/EC of 28 November 1994 on the appointment of an Ombudsman for Mostar for the duration of the European Union administration in Mostar.
280. One example is the Kosovo Media Appeals Board by UNMIK. This Board was estab lished by UNMIK Regulation 2000/36 on the Licensing and Regulation of the Broadcast Media in Kosovo, in order to uphold, modify or rescind decisions of the Temporary Media Commissioner (TMC)-the entity responsible for the "implementation of a temporary regulatory regime for all media in Kosovo".
281. See Constitutional Court of Bosnia and Herzegovina, Decision No. U 9/00 of 3 November 2000.
282. 146 For a more restrictive view, see See Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, UN. Doc. A/59/2005 of 21 March 2005, para. 115
283. ("I do not believe that such a body should have an early warning or monitoring function, but it would be valuable if Member States could at any stager make use of the Peacebuilding Commission's advice and could request assistance from a standing fund for peacebuilding to build their institutions for reducing confict, including through strengthening the rule-of-law institutions."). Article 78 of the UN Charter prohibits the application of the Trusteeship System to UN members.
284. See Report of the High-level Panel on Threats, para. 262. See Human Rights Committee, General Comment No. 26, UN. Doc. A/53/40, Annex VII, para. 4
285. ("The rights enshrined in the Covenant belong to the people living in the territory of the State party.
286. The Human Rights Committee has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights of the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in Government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant.").
287. See most recently Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN. Doc. CCPR/C/74/CRP.4/Rev.6 of 21 April 2004, para. 10.
288. This position is taken by the ICRC Commnentary on the Fourth Geneva Convention. See Commentary, (IV) Geneva Convention relative to the protection of Civilian Persons in Time of War (J. Pictet ed., 195 " ), at 60.
289. See also Benvenisti, International Law of Occupation (2004), Preface, at xvi ([T]he law of occupation should apply to any case of 'effective control of a power (be it one or more states or an international organization, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory'.").
290. The ICTY adhered to this position when reaffrming that the rules of international humanitarian law apply even to non-state actors which exercise de facto control over a territory.
291. See ICTY, Appeals Chamber, Tadic, para. 168, noting that the Convention "does not make its applicability dependent on formal bonds and purely legal relations".
292. See Frédéric Mégret & Florian Hoffman, "The UN as a Human Rights Violator? Some Refections on the United Nations Changing Human Rights Responsibilities", Human Rights Quarterly, Vol. 25 (2003), 314, at 321.
293. See Steven R. Ratner, "Corporations and Human Rights: A Theory of Legal Responsibil ity", Yale Law Journal, Vol. 111 (2001), at 443, 465-472, 509.
294. This group of norms includes the guarantee of self-determination and customary obligations arising from the law of occupation, universally recognized human rights standards (in particular non-derogable human rights), and the right to political participation.
295. See generally Menno T. Kamminga, "State Succession in Respect of Human Rights Treaties", European Journal of International Law, Vol. 7 (1996), 469;
296. Akbar Rasulov, "Revisiting State Succession to Humanitarian Treaties: Is there a Case for Automaticity?", European Journal of International Law, Vol. 14 (2003), 141.
297. This concept is an extension of the concept of "acquired rights". It not only forbids territorial rulers to deprive domestic actors of certain treaty-based rights, but compels the ruling authorities to abide by human rights guarantees in their relations with the inhabitants of the administered territory.