International Administration in Post-Conflict Situations by the United Nations and Other International Actors

Max Planck Yearbook of United Nations Law

Volumn 9, Issue , 2005, Pages 649-696

  Wolfrum, Rüdiger ^a  

^a NONE

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EID: 77952587025     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: 10.1163/187574105x00156     Document Type: Article

References (162)

1. A somewhat different differentiation is used by R. Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Administration”, AJIL 95 (2001), 583 et seq. (583).
2. The Brahimi Report (Report of the Panel on UN Peace Operations, Doc. A/55/305-S/2000/809 of 21 August 2000, para. 81) states in respect of post-conflict missions: “These mission tasks would have been much easier if a common United Nations justice package allowed them to apply an interim legal code to which mission personnel could have been pre-trained while the “applicable law” question was being worked out”. A more forceful position is being taken by P. Ashdown, “Broken Communities, Shattered Lives: Winning the Savage War of Peace”, Speech to the International Rescue Committee, London, 19 June 2003, .
3. See the contribution of E. Afsah/ A.H. Guhr, in this Volume; critical on this approach M. Ignatieff, Empire-Lite: Nation-Building in BiH, Kosovo, and Afghanistan, 2003.
4. Annex to the Convention Respecting the Laws and Customs of War on Land of 18 October 1907, reprinted in D. Schindler/ J. Toman, The Laws of Armed Conflict, 1988, 63 et seq. The Nuremberg Trial stated that the Hague Regulations constituted customary international law, cf. Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Vol. XXII, 497.
5. Article 154 Fourth Geneva Convention states that it complements the Hague Regulations. This is underlined by M. Greenspan, The Modern Law of Land Warfare, 1959, 213 whereas H.P. Gasser, in: D. Fleck (ed.), Handbook of Humanitarian Law in Armed Conflict, 1995, states that the dominant law is the Fourth Geneva Convention (241). For a comparison of the provisions of the Fourth Geneva Convention see J. Pictet, Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 1958, 614.
6. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ILM 16 (1977), 1391 et seq.
7. As to the application of general international human rights standards see J.A. Frowein, “The Relationship between Human Rights Regimes and Regimes of Belligerent Occupation”, Isr. Y. B. Hum. Rts 28 (1998), 1 et seq. (9 et seq.). He points out that international humanitarian law is to be considered as lex specialis.
8. See the Iraq case study, in this Volume.
9. See below.
10. Report of the Secretary-General, An Agenda for Peace – Preventive Diplomacy, Peacemaking and Peace-keeping, Doc. A/47/277 – S/24111 of 17 June 1992, identifies the following functions of the UN in post-conflict peace-building: monitoring elections, advancing efforts to protect human rights, reforming or strengthening governmental institutions and promoting formal and informal processes of political participation as well as support for the transformation of deficient national structures and capabilities and for the strengthening of new democratic institutions.
11. Critical, for example, as far as East Timor and Kosovo are concerned, Frowein, see note 7, 50 et seq.; C. Stahn, “International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges Ahead”, ZaöRV 61 (2001), 107 et seq. (152 et seq.), claims that in Kosovo international human rights standards have not always been fully respected by the UN administration.
12. See the contribution of von Bogdandy et al., in this Volume; the report of J. Dobbins/ S.G. Jones/ K. Crane/ A. Rathmell/ B. Steele/ R. Teltschik/ A. Timilsina, The UN’s Role in Nation-Building: From Congo to Iraq, 2005, for example, fails to distinguish between nation- and state-building.
13. See the contribution of N. Matz, in this Volume concerning the implementation of Article 22 of the Covenant of the League of Nations (which is reprinted as Annex to the contribution). This contribution also contains a brief reference to Article 76 of the UN Charter. Article 81 of the UN Charter provides for the possibility that the administering authority may be the United Nations.
14. B. Dreiwert, “A new Trusteeship for World Peace and Security: Can an old League of Nations Idea be applied to a First Century Iraq?”, Ind. Int’l & Comp. L. Rev. 14 (2004), 771 et seq. (796 et seq.); M. Bothe/ T. Marauhn, “The United Nations in Kosovo and East Timor: Problems of a Trusteeship Administration”, International Peace-keeping 6 (2000), 152 et seq.
15. See below.
16. For a survey see J. Chopra, “UN Civil Governance-in-Trust”, in: T.G. Weiss (ed.), The United Nations and Civil Wars, 1986, 69 et seq.;
17. S.R. Ratner, The UN Peace-keeping, 1996; more recently, J.A. Frowein, “Notstandsverwaltung von Gebieten durch die Vereinten Nationen”, in: Festschrift für W. Rudolf zum 70. Geburtstag, 2001, 43 et seq.;
18. E. de Wet, “The Direct Administration of Territories by the United Nations and its Members in the Post Cold War Era: Legal Bases and Implications for National Law”, Max Planck UNYB 8 (2004), 291 et seq.;
19. O. Korhonen/ J. Gras, International Governance in Post-Conflict Situations, 2001.
20. Although a far reaching plan concerning the internationalization of Jerusalem and of Trieste was considered; see M. Yedit, Internationalised Territories, 1961, and R. Beck, Internationalisierung von Territorien, 1962, 41 et seq.
21. Stahn, see note 11, 131.
22. See Korhonen/ Gras, see note 16, 25 et seq.
23. Wilde, see note 1, 584 also includes amongst others the international administration of camps, housing refugees or internally displaced people. Such activities do not amount to the assumption of governmental powers thus replacing the exercise of sovereignty by respective states as in the cases mainly dealt with in this Volume. They are, therefore, not part of this study.
24. S/RES/143 (1960) of 14 July 1960; for further details see E.W. Lefever, Crisis in the Congo: A United Nations Force in Action, 1965, 190.
25. See first Memorandum of the Secretary-General to the Security Council on the United Nations Civilian Operation in the Republic of Congo, 11 August 1960, Doc. S/4417/Add. 5, 60; G. Abi-Saab, The United Nations Operation in Congo 1960-1964, 1978; Stahn, see note 11, 123.
26. See Reports of the Secretary-General to the Security Council Doc. S/5240 and Add.of 4 February 1963; Doc. S/5428 of 17 September 1963 and Doc. S/5784 of 29 June 1964.
27. A/RES/2145 (XXI) of 27 October 1966 through which the mandate of South Africa over the territory of Namibia was terminated and A/RES/ 2248 (S-V) of 19 May 1967 by which the Council for Namibia was established. This was confirmed by the Security Council in S/RES/385 (1976) of 30 January 1976 and S/RES/435 (1978) of 29 September 1978.
28. See the contribution of N. Matz, in this Volume.
29. A/RES/289 (IV) of 21 November 1949.
30. For details in respect to UNITAF, see C. Philipp, in this Volume.
31. For details see M. Benzing, in this Volume.
32. See note 8.
33. The key players changed in Sierra Leone; for details see M. Goldmann, in this Volume.
34. Concerning the League of Nations one must distinguish between the Mandate System on the one hand and direct international administration on the other hand. In contrast to the UN Trusteeship system, the Mandate System did not enshrine elements of direct administration. The League of Nations direct administrative activities took place outside the Mandate System.
35. Probably the earliest example of international administration was the establishment of the European Danube Commission.
36. G. Levesque, La situation internationale de Dantzig, 1924; F.P. Walters, A History of the League of Nations, 1960, Chapter 9; R. Wolfrum, Die Internationalisierung staatsfreier Räume, 1984, 15 et seq.
37. A. Allot, Le Bassin de la Sarre, 1924.
38. Wilde, see note 1, 587-588.
39. For further details see Yedit, see note 17 and Wolfrum, see note 33, 14 et seq.
40. See the contribution of D. Gruss, in this Volume.
41. In Cambodia the UN operation was governed by the Paris Agreements on a Comprehensive Political Settlement of the Cambodia Conflict of 23 October 1991. According to Part I, Section 3, article 6 of the Agreement on a Comprehensive Political Settlement, ibid., the Supreme National Council delegated to the United Nations “... all powers necessary to ensure the implementation of this Agreement, as described in annex I ...”. See on this agreement S.R. Ratner, “The Cambodia Settlement Agreements”, AJIL 87 (1993), 1 et seq. and the contribution of L. Keller, in this Volume. The mandate was endorsed by S/RES/745 (1992) of 28 February 1992.
42. Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, S/RES/1037 (1996) of 15 January 1996 and Doc. S/1995/951, Annex. This Agreement had entered into force on 12 November 1995; see A. Zimmermann/ C. Stahn, “Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the current and future legal status of Kosovo”, Nord. J. Int’l L. 70 (2000), 423 et seq. (433).
43. S/RES/1244 (1999) of 10 June 1999; see J. Friedrich, in this Volume.
44. S/RES/1272 (1999) of 25 October 1999; see M. Benzing, in this Volume.
45. De Wet, see note 16, 297 et seq., prefers a different classification, namely co-administration and direct administration. The former includes UNTAC, UNOSOM II and Bosnia and Herzegovina.
46. See Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian), arts IV to VI, see Annex of the contribution of D. Gruss, in this Volume and A/RES/1752 (XVII) of 21 September 1962.
47. See note 38.
48. Comprehensive Settlement Agreement, see note 38, Annex 1, Section D, para. 3 (b).
49. See note 39.
50. S/RES/1244 (1999) of 10 June 1999, operative para. 7.
51. A detailed analysis of the governmental activities of the Authority is provided by J. Friedrich, in this Volume.
52. S/RES/1244 (1999) of 10 June 1999, Annex 2, operative para. 2.
53. See also UNMIK/REG/2001/9 of 15 May 2001, 6th preambular paragraph.
54. S/RES/1272 (1999) of 25 October 1999. Its relevant part reads: “The Security Council .... Decides to establish, in accordance with the report of the Secretary-General, a United Nations Transitional Administration in East Timor (UNTAET), which will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice; ...”
55. S/RES/1410 (2002) of 17 May 2002, operative para. 1.
56. See M. Benzing, in this Volume, text accompanying footnote 52.
57. General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes, 14 December 1995, ILM 35 (1996) 75 et seq.
58. See Oellers-Frahm, in this Volume.
59. The President of the European Court of Human Rights makes certain appointments to the Constitutional Court (Annex 4, art. VI (1)) and the Commission for Displaced Persons (Annex 7, art. IX). The Committee of Ministers of the Council of Europe makes certain appointments to the Human Rights Chamber (Annex 6, arts. VII (2), + (2)). The Director General of UNESCO made appointments to the Commission to preserve national monuments (Annex 8). Respective appointment rights for different positions were vested in the European Bank for Reconstruction and Development, the International Monetary Fund and the OSCE. As a general rule such appointees must not be nationals of Bosnia and Herzegovina or a neighboring state.
60. See M. Goldmann, in this Volume.
61. For details see C. Philipp, in this Volume.
62. S/RES/794 (1992) of 3 December 1992.
63. The term “secure environment” was not interpreted by the United States, in which operational command was vested, to disarm the warring factions.
64. S/RES/814 (1993) of 26 March 1993.
65. S/RES/1031 (1995) of 15 December 1995, operative para. 26 speaks only of “[e]ndorses the establishment of a High Representative, following the request of the parties ...”. In respect of IFOR the resolution, however, states (operative para. 14): “Authorizes the Member States acting through or in cooperation with the organization referred to in Annex 1-A of the Peace Agreement to establish a multinational implementation force (IFOR) ...”. The wording indicates that the basis of the mandate is to be found in the resolution rather than the Dayton Peace Agreement.
66. S/RES/1246 (1999) of 11 June 1999.
67. S/RES/1272 (1999) of 25 October 1999.
68. Note has to be taken of the fact, though, that UNTAC was preceded by UNAMIC (United Nations Advance Mission in Cambodia), a peacekeeping force not mentioned in the Paris Agreements.
69. S/RES/1037 (1996) of 15 January 1996, operative para. 1.
70. Articles 45-50 of the Treaty of Versailles.
71. Articles 100-102 of the Treaty of Versailles and Annex.
72. Peace Agreements, see note 38.
73. See the Lomé Agreement; for details see M. Goldmann, in this Volume.
74. Working on the basis of an agreement between the United Nations, South Africa and the SWAPO. S/RES/435 (1978) of 29 September 1978 was not adopted under Chapter VII of the UN Charter and therefore could only serve as a legitimizing basis as far as the establishment of UNTAG as a subsidiary body of the UN was concerned. Nevertheless, it declared the preparatory measures taken by South Africa concerning elections in Namibia to be null and void.
75. Yugoslavia has accepted the Military Technical Agreement (Agreement between the International Security force (KFOR) and the Government of the Federal Republic of Yugoslavia, ratified 9 June 1999) and the Republic of Serbia as well as the peace plan (Agreement of Principles) presented to the ‘leadership’ of the Federal Republic of Yugoslavia by the President of Finland, Martti Ahtisaari, representing the European Union, and Victor Chernomyrdin, Special Representative of the President of the Russian Federation (Doc. S/1999/649 of 7 June 1999) (ratified 3 June 1999). However, when ratifying these commitments which were the basis for S/RES/1244 (1999) of 10 June 1999, Yugoslavia was under military pressure from NATO. Therefore it is inappropriate to speak of a consensual basis of the international administration of Kosovo.
76. S/RES/1037 (1996) of 15 January 1996.
77. S/RES/1031 (1995) of 15 December 1995.
78. S/RES/1264 (1999) of 15 September 1999.
79. S/RES/1270 (1999) of 22 October 1999; S/RES/1289 (2000) of 7 February 2000.
80. S/RES/435 (1978) of 29 September 1978. S/RES/745 (1992) of 28 February 1992. In particular, the latter resolution outlined the consent of the parties as the basis for the action of the UN.
81. S/RES/1483 (2003) of 22 May 2003.
82. In the cases of Kosovo (S/RES/1244 (1999) of 10 June 1999 - UNMIK), Eastern Slavonia (S/RES/1037 (1996) of 15 January 1996 - UNTAES) and East Timor (S/RES/1272 (1999) of 25 October 1999 - UNTAET) the Security Council has stated that the situation in these regions constituted a threat to peace and security and that it was for this reason that the Security Council took action.
83. See M. Ruffert, “The administration of Kosovo and East-Timor by the international community”, ICLQ 50 (2001), 613 et seq. (616-622).
84. S/RES/1244 (1999) of 10 June 1999.
85. M. Bothe, “Peace-keeping”, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, 2nd edition 2002, MN 13 et seq., de Wet, see note 16, 314 et seq.; J. Matheson, “United Nations Governance of Post Conflict Societies”, AJIL 95 (2001), 76 et seq.
86. Bothe, see note 82, MN 84; critical de Wet, see note 16, 314 pointing out that it is incorrect to combine Article 39 with Article 29 UN Charter, the former belonging to Chapter VII of the UN Charter. However, Article 29 UN Charter refers to Chapter VI and VII alike. Since most of the peacekeeping missions were established with the objective to provide for peace in the respective region the reference to Article 39 of the UN Charter seems to be appropriate.
87. de Wet, see note 16, 314.
88. See the so-called Brahimi Report, see note 2.
89. The peace-keeping force UNAMET had a double legitimacy, namely S/RES/1246 (1999) of 11 June 1999 and consent of the respective government – at that time still the government of Indonesia. Also Portugal had endorsed the action. Since the occupation of East Timor by Indonesia was considered illegal the meaning of the consent from Indonesia was doubtful. Also UNTAET had a double legitimacy, S/RES/1272 (1999) of 25 October 1999 and the consent of Indonesia and Portugal as the former colonial power (see the respective agreement between the two with the UN Secretary-General of 5 May 1999 (Doc. A/52/951 – S/1999/513, article 6).
90. S/RES/1037 (1996) of 15 January 1996.
91. S/RES/1270 (1999) of 22 October 1999.
92. S/RES/1031 (1995) of 15 December 1995.
93. See the wording of the last preambular paragraph of S/RES/1037 (1996) of 15 January 1996 and the wording of S/RES/1270 (1999) of 22 October 1999. See, however, S/RES/1289 (2000) of 7 February 2000, which broadened the mandate.
94. Ibid., operative paras 14 and 15.
95. Ibid., operative para. 4.
96. Ibid., operative paras 19, 21 and 33.
97. Ibid., operative para. 22.
98. Bothe/ Marauhn, see note 14.
99. A. Gerson, “Trustee-Occupant: The Legal Status of Israel’s Presence in the West-Bank”, Harv. Int’l L. J. 14 (1973), 1 et seq.; Gerson seems to limit this type of occupation to situations where the territory did not enjoy full sovereignty prior to occupation. H.H. Perritt, jr., “Structures and Standards for Political Trusteeship”, UCLA J. Int’l L. & Foreign Aff. 8 (2003), 385 et seq. and id., “Iraq and the Future of the United States Foreign Policy: Failures of Legitimacy”, Syracuse Journal of International Law and Commerce 31 (2004), 149 et seq.
100. See the Iraq case study, in this Volume.
101. Different G.B. Helman/ S.R. Ratner, “Saving Failed States”, Foreign Pol’y 89 (1992-1993), 12 et seq. (13).
102. See note 50.
103. For details see D. Gruss, in this Volume. A similar system applied for Eastern Slavonia to provide for a peaceful transition of that territory from Serbia to Croatia (cf. S/RES/1037 (1996) of 15 January 1996).
104. For further details see Stahn, see note 11, 126/127, and L. Keller in this Volume.
105. See M. Benzing, in this Volume and for Kosovo J. Friedrich, in this Volume.
106. S/RES/1246 (1999) of 11 June 1999.
107. S/RES/1264 (1999) of 15 September 1999.
108. S/RES/1272 (1999) of 25 October 1999.
109. The respective mandate reads ibid. operative para. 2: “(a) Provide security and maintain law and order throughout the territory of East Timor; (b) To establish an effective administration; (c) To assist in the development of civil and social service; (d) To ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance; (e) To support capacity building for self-government; (f) To assist in the establishment of conditions for sustainable development”. See further the Report of the Secretary-General Doc. S/1999/1024 of 4 October 1999, para. 27.
110. S/RES/1410 (2002) of 17 May 2002.
111. One has to acknowledge though that the population of West Irian did not have a fair chance to exercise its right of external self-determination.
112. Wilde, see note 1, 584 and 590.
113. See S/RES/1037 (1996) of 15 January 1996, second preambular paragraph.
114. See S/RES/1272 (1999) of 25 October 1999, third preambular paragraph.
115. See S/RES/1031 (1995) of 15 December 1995 which refers in its second, third and fourth preambular paragraph to the agreements reached among the parties.
116. See S/RES/1244 (1999) of 10 June 1999, operative para. 11.
117. S/RES/1244 (1999) of 10 June 1999, tenth preambular paragraph; General principles on a political solution for the Kosovo crisis adopted on 6 May 1999 (Doc. S/1999/516, Annex 1 to S/RES/1244); principles set forth in point 1 to 9 presented in Belgrade on 2 June 1999 and accepted by the Federal Republic of Yugoslavia (Annex 2 to S/RES/1244), principle 8.
118. On the details see J. Friedrich, in this Volume.
119. See below.
120. For details which are not to be dealt with in this Volume see A. Eide, Protection of Minorities: Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, Report to the ECOSOC, Commission on Human Rights, Subcommission on the Prevention of Discrimination and Protection of Minorities, Doc. E/CN.4/Sub.2/1993/34 of 10 August 1993, para. 88.
121. See note 117.
122. See the Iraq case study, in this Volume.
123. For example UNMIK Regulation No. 2000/68 and 2001/3. Compare for this assessment L. von Carlowith “UNMIK Lawmaking between Effective Peace Support and Internal Self-determination”, AVR 41 (2003), 336 et seq. (390).
124. E.g. S/RES/814 (1993) of 26 March 1993, concerning Somalia.
125. Part 2, article 12.
126. S/RES/1272 (1999) of 25 October 1999, operative para. 2 (e) and (f).
127. S/RES/1244 (1999) of 10 June 1999, operative para. 11 (a).
128. See the contribution of E. Afsah/ A.H. Guhr, in this Volume
129. S/RES/1546 (2004) of 8 June 2004, operative paras 3 and 4.
130. B. Boutros-Ghali, An Agenda for Democratization, 1996, para. 4.
131. Ibid., para. 10.
132. See Chapter 9, Section 1. According to this provision 100 of the 120 seats shall be distributed amongst all parties in proportion to the number of valid votes received by them; 10 seats shall be allocated to the Roma, Ashkali and Egyptian communities (4), the Bosniak community (3), the Turkish community (2) and the Gorani community. The seats for each community will be distributed amongst the respective parties proportional to the number of votes received. Ten seats shall be allocated to parties from the Serb community proportional to the votes received.
133. See below.
134. R. Caplan, International Governance of War Torn Territories, Rule and Reconstruction, 2005, 195 et seq.
135. Ibid., 209.
136. Ibid., 199.
137. The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, Art. II, 1(f).
138. See UNMIK Regulation No. 2000/38 of 30 June 2000; in Bosnia and Herzegovina three institutions were established – one at the state level (including the district of Brcko) and one for each of the two entities. The jurisdiction of the two latter does not extend to international actions. The office of the Ombudsperson for East Timor was established without a regulation.
139. Caplan, see note 131, 201.
140. Ombudsperson Institution in Kosovo, Second Annual Report 2001-2002, 5.
141. Cf. S/RES/1244 (1999) of 10 June 1999, operative para. 11 (j) in respect of Kosovo.
142. J. Cerone, “Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo”, EJIL 12 (2001), 469 et seq.; T.H. Irmscher, “Legal Framework for Acts of UNMIK”, GYIL 44 (2001), 353 et seq.; Human Rights Committee, General Comment No. 26, see below note 144.
143. See Section 2: “In exercising their functions, all persons undertaking public duties or holding public office in East Timor shall observe internationally recognized human rights standards, as reflected, in particular, in: the Universal Declaration of Human Rights, 1948; the International Covenant on Civil and Political Rights, 1966 and its Protocols; the International Covenant on Economic, Social and Cultural Rights, 1966; the Convention on the Elimination of All Forms of Racial Discrimination, 1965; the Convention on the Elimination of All Forms of Discrimination Against Women, 1979; the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; the International Convention on the Rights of the Child, 1989. All persons undertaking public duties shall not discriminate against any person on any ground such as sex, race, color, language, religion, political or other opinion, national, ethic or social origin, association with a national community, property, birth or all other status”.
144. See also UNMIK Regulation No. 1999/24 amending Regulation No. 1999/1. The former lists the following human rights instruments: Universal Declaration of Human Rights, 1948; European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Protocols thereto, 1950; the International Covenant on Civil and Political Rights, 1966; the International Covenant on Economic, Social and Cultural Rights, 1966; the International Convention on the Elimination of All Forms of Racial Discrimination, 1965; the Convention on the Elimination of All Forms of Discrimination Against Women, 1979; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; and the International Convention on the Rights of the Child, 1989. All persons undertaking public duties shall not discriminate against any person on any ground such as sex, race, color, language, religion, political or other opinion, natural, ethnic or social origin, association with a national community, property, birth or other status.
145. On this, in particular Cerone, see note 139, 473.
146. S/RES/1244 (1999) of 10 June 1999 obliges KFOR to comply with the purposes of the United Nations, which includes the promotion of human rights and KFOR is required to support the international presence (operative para. 6).
147. See in particular the analysis by Cerone, see note 139, 474 et seq.
148. Report of the Human Rights Committee, Volume I, GAOR 53 Sess., Suppl. No. 40.
149. See, for example, the comment of the Human Rights Committee on the Report of the United States, Doc. CCPR/C/79/Add. 50 (1995), para. 19; Judgment of the European Court of Human Rights, Loizidou v. Turkey (Merits), 40/1993/435/514 of 18 December 1996, para. 57
150. Observance by United Nations Forces of International Humanitarian Law Doc. ST/SGB/1999/13 of 6 August 1999.
151. It has to be remarked that on 28 August 2004 there had been issued an Agreement between the Special Representative of the Secretary-General and the Secretary-General of the EU Council which provides that the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, as well as the Framework Convention for the Protection of National Minorities apply to UNMIK.
152. E.g. S/RES/814 (1993) of 26 March 1993, in respect of Somalia.
153. S/RES/1563 (2004) of 17 September 2004, in respect of Afghanistan, S/RES/897 (1994) of 4 February 1994 in respect of Somalia.
154. See Seibert-Fohr, in this Volume. This aspect as well as the restructuring of the police and justice sector are dealt with in the Report of the Secretary-General of 23 August 2004, Doc.S/2004/616.
155. Sec. 3 of UNMIK/REG/1999/1 of 25 July 1999 reads: “Applicable Law in Kosovo - The laws applicable in the territory of Kosovo prior to 24 March 1999 shall continue to apply in Kosovo insofar as they do not conflict with standards referred to in section 2, the fulfilment of the mandate given to UNMIK under United Nations Security Council resolution 1244 (1999), or the present or any other regulation issued by UNMIK”. UNMIK/REG/1999/24 of 12 December 1999 later stipulated that those legal rules apply which were in force in Kosovo on 22 March 1989 (the date at which the autonomy was withdrawn). The law between 1989 and 1999 is applicable only if otherwise there would be a legal lacuna and such rules are not discriminatory. UNMIK/REG/1999/24 was amended by UNMIK/REG/2000/59 of 27 October 2000 according to which the applicable law in Kosovo shall be: “1.1. The law applicable in Kosovo shall be: (a) The regulations promulgated by the Special Representative of the Secretary-General and subsidiary instruments issued thereunder; and (b) The law in force in Kosovo on 22 March 1989. In case of a conflict, the regulations and subsidiary instruments issued thereunder shall take precedence. 1.2. If a court of competent jurisdiction or a body or person required to implement a provision of the law determines that a subject matter or situation is not covered by the laws set out in section 1.1 of the present regulation but is covered by another law in force in Kosovo after 22 March 1989 which is not discriminatory and which complies with section 1.3 of the present regulation, the court, body or person shall, as an exception, apply that law”. The situation in respect of East Timor is similar. The respective provision (Sec. 3) in UNTAET/REG/1999/1 of 27 November 1999 states: “Applicable Law in East Timor - 3.1. Until replaced by UNTAET regulations or subsequent legislation of democratically established institutions of East Timor, the laws applied in East Timor prior to 25 October 1999 shall apply in East Timor insofar as they do not conflict with the standards referred to in section 2, the fulfilment of the mandate given to UNTAET under United Nations Security Council resolution 1272 (1999), or the present or any other regulation and directive issued by the Transitional Administrator. 3.2. Without prejudice to the review of other legislation, the following laws, which do not comply with the standards referred to in section 2 and 3 of the present regulation, as well as any subsequent amendments to these laws and their administrative regulations, shall no longer be applied in East Timor: Law on Anti-Subversion; Law on Social Organizations; Law on National Security; Law on National Protection and Defense; Law on Mobilization and Demobilization; Law on Defence and Security. 3.3. Capital punishment is abolished”.
156. See above.
157. See for example UNMIK Regulation 2000/59 Sec.1; UNTAET/ REG/1991/1 Sec. 3; the same method has been used by the Coalition Provisional Authority in Iraq.
158. Doc. A/59/2005 of 21 March 2005.
159. Ibid., page 31.
160. Bothe/ Marauhn, see note 14, 153 et seq.; Deiwert, see note 14, 796 et seq.
161. At least formally this principle has been respected for example for Kosovo and East Timor.
162. Different Dobbins et al., see note 12, who treat cases of international administration and belligerent occupation alike.