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

Volumn 8, Issue , 2005, Pages 291-340

  de Wet, Erika ^a  

^a NONE

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EID: 85180070326     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: 10.1163/187574104x00067     Document Type: Chapter

References (212)

1. This mandate was endorsed by S/RES/745 (1992) of 28 February 1992, paras 1 et seq. See F.E. Hufnagel, UN-Friendsoperationen der zweiten Generation. Vom Puffer zur Neuen Treuhand 1996, 138.
2. S/RES/814 (1993) of 26 March 1993.
3. See S/RES/1031 (1995) of 15 December 1995, para. 27; the General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, article 5, available at .
4. 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, which is hereinafter referred to as Basic Agreement entered into force on 22 November 1995; 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 (2001), 423 et seq. (433).
5. S/RES/1244 (1999) of 10 June 1999, paras 1 et seq.
6. S/RES/1272 (1999) of 25 October 1999, para. 1 et seq.
7. S/RES/1483 (2003) of 22 May 2003, para. 4.
8. German authority over the territory was reinstated on 13 January 1925, following the outcome of a referendum in accordance with which the majority of the population favoured reunification with Germany. See Treaty of Peace between the Principal Allied and Associated Powers and Germany (“Treaty of Versailles”) of 28 June 1919, Part III, Section IV, Annex, article 19. See also Zimmermann/ Stahn, see note 4, 436.
9. Zimmermann/ Stahn, see note 4, 430.
10. See I. von Münch, Dokumente des geteilten Deutschland 1968, 19.
11. C. Tomuschat, “Yugoslavia’s Damaged Sovereignty over the Province of Kosovo, in State, Sovereignty and International Governance”, in: G.P.H. Kreijen et al. (eds), State, Sovereignty and International Governance 2002, 336.
12. The text of the Potsdam Accords are reprinted in von Münch, see note 10, 32; see also Tomuschat, see note 11, 336.
13. Less successful early attempts by the United Nations to engage in direct administration included the administration of Trieste and Palestine, respectively. The multilateral peace treaty with Italy after World War II had authorized the Security Council to approve a provisional regime and appoint a governor to administer the Free Territory of Trieste, but early Cold War rivalries prevented the appointment of a governor. The status of Trieste was eventually resolved in the Memorandum of Understanding between the Governments of Italy, the United Kingdom, the United States and Yugoslavia regarding the Free Territory of Trieste of 5 October 1954, UNTS Vol. 235 No. 3297. The General Assembly’s partition plan for Palestine had called for the creation of a corpus separatum for Jerusalem under a special international regime administered by the Trusteeship Council, but the Arab states and Israel ultimately rejected the plan. See Doc. T/L.78 (1950); Zimmermann/ Stahn, see note 4, 430 et seq.; Tomuschat, see note 11, 336.
14. UNMIK/REG/ 2000/68 of 29 December 2000.
15. UNTAET/REG/2001/30 of 30 November 2001.
16. As concretized, inter alia, by the extensive modernization of the banking system and the licensing of commercial telecommunications services and equipment. See CPA/ORD/7 June 2003/12; CPA/ORD/19 September 2003/40, including Annex A; CPA/ORD/8 June 2003/11.
17. Zimmermann/ Stahn, see note 4, 441.
18. The article does not deal with the question whether the Security Council could adopt coercive measures against non-Member States. This question nonetheless may arise, given the fact that East Timor was not a member of the United Nations at the time S/RES/1272 was adopted, whilst the status of the Federal Republic of Yugoslavia (FRY) at the time of the adoption of S/RES/1244 remains disputed until this day. For an explanation why the Security Council had the competence to adopt Chapter VII measures in the specific instances of East Timor and the former FRY, see E. De Wet, The Chapter VII Powers of the United Nations Security Council, 2004, 236 et seq. and 318 et seq. For a detailed analysis on the issue of state succession and its consequences for the former Yugoslav republics, see A. Zimmermann, Staatennachfolge in völkerrechtliche Verträge, 2000, 599 et seq.
19. Although the Security Council already authorized its creation in S/RES/435 (1978) of 29 September 1978, its actual establishment was prevented by the lack of cooperation by South Africa until 1988.
20. Hufnagel, see note 1, 65.
21. Hufnagel, see note 1, 67. This advisory power ultimately lead to the removal of 56 discriminatory laws.
22. Hufnagel, see note 1, 69; C. Stahn, “International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges ahead”, ZaöRV 61 (2001), 108 et seq. (125 et seq.).
23. Hufnagel, see note 1, 65.
24. See note 1.
25. See note 2.
26. See note 3.
27. See the Agreement on a Comprehensive Political Settlement of the Cambodian Conflict of 30 October 1990 (Doc. S/23177 of 30 October 1991). This document is hereinafter referred to as the Paris Agreement.
28. Paris Agreement, see above, Annex 1, Section A, para. 1.
29. See Paris Agreement, see note 27, Annex 1, Section B, paras 2 et seq., which regulated the extent to which the Special Representative exercised indirect governance in the form of supervision and control over the remaining sections of the Cambodian administration, including the police force.
30. Paris Agreement, see note 27, Annex 1, Section B, paras 1 and 5 (b). Hufnagel, see note 1, 117; Zimmermann/ Stahn, see note 4, 433; Stahn, see note 22, 126.
31. Paris Agreement, see note 27, Annex 1, Section D, para. 3 (a).
32. Paris Agreement, ibid., Annex 1, Section D, para. 3 (b); Hufnagel, see note 1, 132; Stahn, see note 22, 126.
33. Hufnagel, see note 1, 129.
34. Paris Agreement, see note 27, Annex 1, Section B, para. 6. To the extent that differences of opinion (“issues”) arose between the Special Representative and the SNC in relation to the implementation of the Paris Agreement, it prescribed a mechanism for their resolution. In essence, the Special Representative had to respect unanimous recommendations of the SNC or – where no unanimity was possible – those made by its Chairperson. Direct action by the Special Representative was limited to instances where the SNC was unable to act, despite the intervention of the Chairperson. In addition, the Special Representative could overrule any decisions that were not in accordance with the purposes of the Paris Agreement, i.e. where they threatened the impartiality of the elections. However, the Special Representative was not at liberty to replace a decision overruled by him on his own. This was only possible if and to the extent that the SNC was unable to take a decision itself. See also Paris Agreement, see note 27, Annex 1, Section A, paras 2 (a) to 2 (e); S.R. Ratner, “The Cambodia Settlement Agreements”, AJIL 87 (1993), 1 et seq. (10, 13 et seq.); Hufnagel, see note 1, 109, 130.
35. S/RES/814 (1993) of 26 March 1993, paras 4 (c) and (g).
36. Doc. S/1994/12, para. 14.
37. Stahn, see note 22, 127.
38. Doc. S/26317 (1993) Annex 1, paras 29 et seq.
39. Doc. S/26317 (1993) Annex 1, paras 25-29, 31, 36; C. Stahn, “The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis”, Max Planck UNYB 5 (2001), 105 et seq. (131); Hufnagel, see note 1, 184.
40. See S/RES/814 (1993) of 26 March 1993, paras 4 and 13. Despite its modest successes in reconstructing the Somali judicial and penal systems, UNOSOM II did not achieve the major goals of disarmament and repatriation of refugees. Neither was the recreation of the Somali state accomplished. After a series of Somali attacks on UNOSOM II forces all international forces departed from the country in 1995, leaving no recognized authority in place. See Hufnagel, see note 1, 181 et seq.; Stahn, see note 39, 128.
41. See S/RES/1031 (1995) of 15 December 1995, para. 27; the General Framework Agreement for Peace in Bosnia and Herzegovina, see note 3, Annex 10, article 5.
42. Conclusions of the Peace Implementation Conference in Bonn of 10 December 1997, para. XI 2 (a) to XI 2 (c), available at . See also S/RES/1144 (1997) of 19 December 1997, para. 2; Stahn, see 22, 112.
43. See also Stahn, see note 22, 136; T.D. Grant, “Internationally Guaranteed Constitute Order: Cyprus and Bosnia as Predicates for a new NonTraditional Actor in the Society of States”, Transnat’l L.& Contemp. Probs (1998), 1 et seq. (20-21, 37-38). The Constitution itself requires further incorporation of international law into the structure and laws of that federal state. Among other provisions, it calls for respect for human rights and fundamental freedoms, and in particular for enforcement of the provisions of a series of regional and international human rights instruments.
44. For an overview of situations in which the United Nations has administered territories on a different legal basis (i.e. outside of Chapter VII of the Charter), see Stahn, see note 22, 107 et seq.; R. Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Administration”, AJIL 95 (2001), 583 et seq.
45. See Basic Agreement, see note 4, 23, paras 3-4. The military component consisted of the supervision and facilitation of the demilitarisation as agreed to by the parties; the monitoring of the voluntary and safe return of refugees and displaced persons to their home of origin; and contribution to the maintenance of peace and security in the region. The civilian component included the establishment and training of a temporary police force; the undertaking of tasks relating to civil administration and public services; the facilitating of the return of refugees and the organising and conducting of elections. See also S/RES/1037 (1996) of 15 January 1996, paras 10-11.
46. Basic Agreement, see note 4, para. 1; see also Zimmermann/ Stahn, see note 4, 433.
47. The preamble of S/RES/1244 of 10 June 1999, explicitly affirmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia. See also S/RES/1160 of 31 March 1998, para. 13, and S/RES/1199 of 23 September 1998, para. 7.
48. S/RES/1244 (1999) of 10 June 1999, Annex 2, para. 2.
49. S/RES/1244, see above, para. 7 and Annex 2, para. 4.
50. S/RES/1244, see note 48, para. 6.
51. S/RES/1244, see note 48, para. 19.
52. S/RES/1244, see note 48, paras 10-11. See also Zimmermann/ Stahn, see note 4, 442-443; Stahn, see note 22, 134 et seq.
53. Doc. S/1999/779, 39.
54. UNMIK/REG/1/1999 of 25 July 1999, Sec. 4.
55. Ibid., at s 1(2); Stahn, see note 22, 112.
56. S/RES/1244, see note 48, paras 11(d) and 11 (f). See also De Wet, see note 18, 331-332.
57. UNMIK/REG/2001/9 of 15 May 2001.
58. Constitutional Framework, see note 57, Ch. 5.1.
59. Constitutional Framework, see note 57, Chs 6 and 8.1.
60. Constitutional Framework, see note 57, Ch. 9.1.44; De Wet, see note 18, 332.
61. See note 6.
62. Ibid., para. 6.
63. Ibid., paras 1 and 6, which explicitly stated that the Special Representative will have the power to enact new laws and regulations and to amend, suspend or repeal existing ones. East Timor formally remained on the list of non-self-governing territories, but with UNTAET as the administering power. See ; Stahn, see note 39, 115; see also M. Ruffert, “The Administration of Kosovo and East-Timor by the International Community”, ICLQ 50 (2001), 613 et seq. (623).
64. UNTAET/REG/1999/2 of 2 December 1999, ss 1 et seq. This and other regulations adopted by the Special Representative are available at .
65. UNAET/REG/1999/3 of 3 December 1999, ss 1 et seq.
66. UNTAET/REG/2000/1 of 14 January 2000, ss 1 et seq.
67. UNTAET/REG/2001/1 of 31 January 2001, ss 2 et seq.
68. S/RES/1410 (2002) of 17 May 2002, para. 1.
69. S/RES/1410, see above, para. 2 (a).
70. Doc. S/2002/432, para. 70.
71. Doc. S/2002/432, paras 79 et seq, and para. 2 (b) and 2 (c)
72. See S/RES/1483 (2003) of 22 May 2003, para. 4. For a more reticent opinion see T. Marauhn, “Konfliktfolgenbewältigung statt Legalisierung”, Vereinte Nationen 51 (2003), 113 et seq. (117), who regards the language of S/RES/1483 as too inexplicit to authorize the extensive rebuilding and democratisation of Iraq by the CPA. See also T. Bruha, “Iraq-Krieg und Vereinte Nationen”, AVR 41 (2003), 295 et seq. (311).
73. S/RES/1483, see above, para. 8.
74. See also F.L. Kirgis, “Security Council Resolution 1483 on the Rebuilding of Iraq”, ASIL Insights (2003), available at .
75. As was also suggested by Pakistan in Doc. S/PV.4761 of 22 May 2003, 11.
76. A full list of Regulations and Orders are available at .
77. S/RES/1483, see note 72, paras 1 et seq. See also S/RES/1511 (2003) of 16 October 2003, paras 1 et seq.
78. See De Wet, see note 18, 335-336.
79. De Wet, ibid.
80. See, for example, the transfer of the Iraqi Civil Defence Corps to the Iraqi Ministry of Defence by CPA/ORD/22 April 2004/73.
81. S/RES/1546 (2004) of 8 June 2004, para. 1.
82. S/RES/1546, see above, para. 4. In paras 9 and 10 the security mandate of the multi-national force established under S/RES/1511 was nonetheless extended until 31 December 2005. See also France in Doc. S/PV.4987, 7.
83. S/RES/1546, see note 81, para. 7.
84. See also Zimmermann/ Stahn, see note 4, 436-437.
85. See Article 77 (1) of the Charter.
86. In addition, Article 78 explicitly determines that the trusteeship system shall not apply to territories which have become members of the United Nations, as this would not be consistent with the principle of sovereign equality. As the FRY has been a member of the United Nations (at least) since 1 November 2000, its territory could not be subjected to the trusteeship system. See also Zimmermann/ Stahn, see note 4, 436; Stahn, see note 22, 119.
87. The agreement between Indonesia and Portugal of 5 May 1999 (Doc. S/1999/513), which provided for the voluntary transfer of authority in East Timor to the United Nations during the transitional period towards independence, did provide a legal basis for subsequent Security Council action in the territory. It did not, however, amount to a trusteeship agreement in terms of Article 77 (1)(c) of the Charter. See also Ruffert, see note 63, 621; R.E. Gordon, “Some Legal Problems with Trusteeship”, Cornell Int’l L. J. 28 (1995), 301 et seq. (311-312).
88. Stahn, see note 22, 130.
89. Hufnagel, see note 1, 304.
90. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174 et seq.
91. The essence of implied powers as applied today in international organizations can be found in McCulloch v. Maryland 17 US (4 Wheat) 316 (1819). Both for federal states and for international organisations the principle applies that it was impossible for the framers of the constitutions to specify prospectively all the means by which a certain power had to be exercised. See also N. Blokker, “Beyond ‘Dili’: On the Powers and Practice of International Organizations”, in: Kreijen, see note 11, 304.
92. See, inter alia, Prosecutor v. Dusco Tadic, Decision on the Defence Motion for Interlocutory Appeal and Jurisdiction, Case No IT-94-1-T, 2 October 1995, Appeals Chamber, paras 18 to 21, available at .
93. Reparations for Injuries, see note 90, 182.
94. Blokker, see note 91, 307.
95. Article 27 (3) of the Charter reads as follows: “Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members ...”.
96. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16 et seq. Hereinafter referred to as Namibia opinion. See also Blokker, see note 91, 318.
97. Blokker, see note 91, 307.
98. Blokker, see note 91, 307-308.
99. WHO Opinion, para. 19; Blokker, see note 91, 309.
100. UNTS Vol. No. 1155 No. 18232; article 31 (3)(b) determines that there shall be taken into account, together with the context: “Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”
101. Blokker, see note 91, 309, criticized the fact that the ICJ’s approach, as the concept of subsequent practice as a canon of interpretation laid down in the Vienna Convention, refers to the views of the states party to a particular treaty, and not to the views of the organisation. In this sense, article 31 (3)(b) of the Vienna Convention seems to be incorrect as a foundation on which practice of the organisation may rest. This criticism is not convincing. Since the organisation is based on a treaty, it seems logical that the subsequent view of the membership at large regarding the practice of the organisation should be decisive in determining whether a particular power was implied or not. The only other option would be to consider as decisive the views of the particular organ that is claiming the implied power, which would lead to a circular argument. See also M.J. Herdegen, Die Befugnisse des UN-Sicherheitsrates: aufgeklärter Absolutismus im Völkerrecht? 1998, 112; J.A. Frowein, “The Internal and External Effects of Resolutions by International Organizations”, ZaöRV 49 (1989), 778 et seq. (790).
102. J. Herbst, Rechtsbindung des UN-Sicherheitsrates, 1999, 314; Pollux, “The Interpretation of the Charter”, BYIL 23 (1946), 54 et seq. (57). See also M.C. Wood, “The interpretation of Security Council Resolutions”, Max Planck UNYB 2 (1998), 73 et seq. (82).
103. Compare Herdegen, see note 101, 113. He stated that the more the interpretation of the Security Council deviates from the wording of the Charter or a generally accepted interpretation by Member States, the more important the acceptance of the Security Council’s practice by the other principal organs of the United Nations and Members States will become. See also G. Nolte, “The Limits of the Security Council’s Powers and its Functions in the International Legal System: Some Reflections”, in: M. Byers (ed.), The Role of Law in International Politics, 2000, 325. Compare also A. Stein, Der Sicherheitsrat der Vereinten Nationen und die Rule of Law, 1999, 70 et seq.
104. Namibia Opinion, see note 96, 22-23; see also Herbst, see note 102, 314.
105. Herbst, see note 102, 313. But see B. Lorinser, Bindende Resolutionen des Sicherheitsrats, 1996, 44, who claimed that there was disagreement as to the extent to which the Security Council interpretation had to be accepted by the Members, since it was not clear what “generally acceptable” meant. See also Stein, see note 103, 108-110 for a more cautious approach.
106. See Certain Expenses of the United Nations, Advisory Opinion, ICJ Reports 1962, 151 et seq. (168); Frowein, see note 101, 781. See also Lorinser, see note 105, 142; B. Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats. Die Überprüfung nichtmilitärischer Zwangsmassnahmen durch den internationalen Gerichtshof, 1996, 539.
107. See A/RES/377 (V) of 3 November 1950. Its essential feature is an assertion of a right on the part of the General Assembly to act to maintain international peace and security when the Security Council, because of the veto, is unable to do so. The General Assembly can then recommend to the Members to take collective action. It may meet in an emergency special session within twenty-four hours of a request by the Security Council, on the vote of any nine members thereof, or of a request from a majority of the Members of the United Nations. See A. Chayes et al. (eds), International Legal Process, 1968, 36; F. Seyersted, United Nations Forces in the Law of Peace and War, 1966, 42; B. Sloan, United Nations General Assembly Resolutions in Our Changing World , 1991, 25.
108. Certain Expenses Opinion, see note 106, 163 et seq. The ICJ indicated that this implied power found its limitation in the explicit Charter determinations which reserved coercive (non-consensual) action to the Security Council. The General Assembly could only adopt peace-keeping measures to the extent that the countries affected consented thereto, the measures were neutral (not directed against a state) and force could only be used in self-defence.
109. Hufnagel, see note 1, 292.
110. Hufnagel, see note 1, 212.
111. See note 126 below.
112. After the termination of South Africa’s mandate over Namibia, S/RES/385 (1976) of 30 January 1976 described its continued presence in the territory as an illegal occupation, whilst A/RES/43/26 of 17 November 1988 referred to it as a threat to international peace and security. Hufnagel, see note 1, 52.
113. Doc. S/12836 (1978); Doc. S/12853 (1978); Doc. S/12854 (1978).
114. Doc. S/ 12853.
115. Hufnagel, see note 1, 51.
116. S/RES/439 (1978) of 13 November 1978, para. 6.
117. See also Hufnagel, see note 1, 52.
118. See e.g. S/RES/623 (1988) of 23 November 1988, paras 1-2. A/RES/43/232 of 1 March 1989.
119. This is underscored by the position taken by the different country representatives in the debate that followed the unanimous adoption of the above-mentioned resolution. See France in Doc. S/PV.3057 (1992), 12; Russia, ibid., 23; Austria, ibid., 27; Hungary, ibid., 30; India, ibid., 33. See also Hufnagel, see note 1, 102; Ratner, see note 34, 9.
120. See note 27.
121. The importance of this consent was also reflected in the Security Council debates. For example, the Ecuadorian representative stressed that the United Nations presence in Cambodia derives essentially from the express consent of the Cambodian people and all its political components. If this condition had not been met, there could not have been an UNTAC. See Doc. S/PV.3057 (1992), 39. See also France, ibid., 13; Venezuela, ibid., 29. See also Ratner, see note 34, 9. Hufnagel, see note 1, 98.
122. See e.g. S/RES/745 (1992) of 28 February 1992; A/RES/46/18 of 20 November 1991.
123. Stahn, see note 39, 140. Compare also M. Bothe/ T. 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, 2001, 217 et seq.
124. That the situation in Somalia constituted a threat to the international peace was already constituted in S/RES/733 (1992) of 23 January 1992 and S/RES/ 794 (1992) of 3 December 1992.
125. For Somalia see: S/RES/878 (1993) of 29 October 1993, para. 1; S/RES/886 (1993) of 18 November 1993, para. 3; S/RES/923 (1994) of 31 May 1994, para. 2; S/RES/946 (1994) 30 September 1994, para. 1; S/RES/953 (1994) of 31 October 1994, para. 1. For Bosnia-Herzegovina see: S/RES/1088 (1996) of 12 December 1996, para. 18; S/RES/1174 (1998) of 15 June 1998, para. 10; S/RES/1247 (1999) of 18 June 1999, para. 10; S/RES/1305 (2000) of 21 June 2000, para. 10; S/RES/ 1357 (2001) of 21 June 2001, para. 10; S/RES/1423 (2002) of 12 July 2002, para. 10; S/RES/ 1491 (2003) of 11 July 2003, para. 10. For East-Timor see: S/RES/1338 (2001) of 21 January 2001, para. 2; S/RES/1392 (2002) of 31 January 2002, para. 2; S/RES/1410 (2002) of 17 May 2002, para. 1; S/RES/1480 (2003) of 19 May 2003, para. 1. Given the open-ended nature of the mandate for civil administration in Kosovo in S/RES/1244 (1999) of 10 June 1999, para. 19. No similar resolutions were adopted in that instance.
126. For Eastern Slavonia, Baranja and Western Sirmium: A/RES/51/153 of 13 June 1997; Kosovo: A/RES/53/241 of 28 July 1999 and A/RES/54/245 of 23 December 1999; East Timor: A/RES/54/246 of 23 December 1999; Somalia: A/RES/47/41 B of 15 April 1993; Bosnia-Herzegovina: A/RES/51/203 of 17 December 1996;. See also Bothe/ Marauhn, see note 123, 230. See Stahn, see note 22, 130; Zimmermann/ Stahn, see note 4, 438; see also Ruffert, see note 63, 620-621.
127. See e.g. Germany and France in Doc. S/PV./488, 4. See also Bruha, see note 72, 311.
128. S/RES/1546 (2004) of 8 June 2004, 2.
129. See S/RES/1511 (2003) of 16 October 2003, para. 1
130. Bothe/ Marauhn, see note 123, 230.
131. Tadic Decision, see note 92, paras 27 et seq. The same issue also arose with respect to the ICTR in The Prosecutor v. Kanyabashi, Decision on the Defence Motion on Jurisdiction, Case No. ICTR-96-15-T of 18 June 1997, Trial Chamber, at paras 17, available at . See also F.L. Kirgis, “The Security Council’s First Fifty Years”, AJIL 89 (1995), 506 et seq. (522); Nolte, see note 103, 315-326.
132. It is unlikely that Article 40 of the Charter could serve as a basis of the implied powers in this instance. The provisional measures foreseen by this article are intended as “cooling-off” measures such as cease-fires, without prejudice to the rights, claims or positions of the parties concerned. Given the highly complex and frequently protracted nature of direct administrations, as well as the fact that they have extensive consequences for the rights and claims of the parties concerned, it seems unlikely that they would fit the mould of the measures foreseen by Article 40. See also Tadic Decision, see note 92, para. 34. Cf. A. Orakhelashvili, “The Legal Basis of the United Nations Peace-Keeping Operations”, Va. J. Int’l. L. 43 (2003), 485 et seq. (495 et seq.).
133. Certain Expenses Opinion, see note 106, 184.
134. Although consent on the part of the affected state may frequently be present in practice, it is not a legal requirement. See Tomuschat, see note 11, 339.
135. T.H. Irmscher, “Legal Framework for the Activities of UNMIK”, GYIL 44 (2001), 353 et seq. (371); Human Rights Committee, General Comment No. 26; Doc. A/53/40, Annex VII, para. 4, available at .
136. Since individuals and not states are the beneficiaries of these rights, they would be entitled to maintain them, regardless of whether control over the territory passes into the hands of another state or entity. See J. Cerone, “Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo”, EJIL 12 (2003), 469 et seq. (474); Stahn, see note 22, 139.
137. Irmscher, see note 135, 371, who refers to Vallaj v. Special Adjudicator, High Court, Queens Bench Division, 21 December 2000, unreported (Westlaw: 2000 WL 1881268), para. 29. The English Court held that since UNMIK/KFOR have lawful authority in and over Kosovo, and have had all the powers and functions of the state transferred to them, they are in a position to provide protection to the inhabitants. However, this conclusion does not depend on whether there was functional succession of human rights treaties. It would equally follow from the trusteeship like character of the United Nations administration in Kosovo which, in turn, has its legal basis in Chapter VII of the Charter.
138. See extensively A. Rasulov, “Revisiting State Succession to Humanitarian Treaties: Is there a Case of Automaticity?”, EJIL 14 (2003), 141 et seq.
139. Stahn, see note 22, 139.
140. For the argument that Article 1 (3) and Article 2 (2) of the Charter indeed obliges United Nations (authorized) administrations to give effect to the core content of the human rights standards contained in the International Bill of Rights, see De Wet, see note 18, 319 et seq.
141. As is suggested by Cerone, see note 136, 484.
142. See article 6 of the Fourth Geneva Convention, Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, available at .
143. Fourth Geneva Convention, see above, article 6; Cerone, see note 136, 484; Stahn, see note 22, 140.
144. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. J.J. Paust, “The US as Occupying Power over Portions of Iraq and Relevant Responsibilities under the Laws of War”, ASIL Insights (2003), available at ; Cerone, see note 136, 484.
145. Cerone, ibid.
146. See Irmscher, see note 135, 380, 382-383. The situation might be different, however, where a territory consents to the military presence of (an) individual state(s). In those instances, the law of occupation could still apply. Article 2 of the Fourth Geneva Convention, see note 142, would be broad enough to cover agreed occupations. There also is state practice supporting this position. E.g., the French Supreme Commander of the Allied troops at the end of World War I explicitly ordered that the regulations annexed to the Convention (IV) respecting the Laws and Customs of War on Land (the Hague Regulations) of 1907 would regulate the armistice of 11 November 1918, which provided for the occupation of the Rhineland. This decision was supported by the German Reichsgericht in its early jurisprudence. See Decision of 23 February 1920, Entscheidungen des Reichsgerichtes in Strafsachen (RGSt), Vol. 54, 139. See also the Ruocco v. Fiore, Corte Constituzionale, Annual Digest 14 (1947), 248; Genel and Bussi v. Steiner, ILR 19 (1952), 613-614.
147. This was notably the case in Kosovo, where the consent of the FRY was not of a voluntary nature. In East-Timor the situation was more complicated. While the consent of the de facto Indonesian government was procured under the threat of force, the consent of the de jure administor (Portugal) to UNTAET was of a voluntary nature. See Cerone, see note 136, 484; Irmscher, see note 135, 380 et seq.
148. Cerone, see note 136, 485.
149. Cerone, ibid.
150. S/RES/1264 (1999) of 15 September 1999, para. 3; S/RES/1272 (1999) of 25 October 1999, para. 9 determined, inter alia, that the multi-national force deployed pursuant to S/RES/1264 (1999) of 15 September 1999 had to be replaced by the military component of UNTAET as soon as possible.
151. S/RES/814 (1993) of 26 March 1993, para. 14 provided for a phased transition of UNITAF to UNOSOM II. Note that in this particular instance, the Australian troops participating in UNITAF and UNOSOM II considered themselves bound by the law of occupation, whilst the United States took the opposite view. See Irmscher, see note 135, 383.
152. The preamble calls upon the occupying powers to comply fully with the obligations on occupying forces under “applicable international law”, which includes the Fourth Geneva Convention, see note 142, and the Hague Regulations, see note 146. See Kirgis, see note 74. Note that S/RES/1511 (2003) of 16 October 2003 reaffirmed S/RES/1483 (2003) of 22 May 2003, in the preamble.
153. Legal Opinion of the Secretariat of the United Nations, “Question of the Possible Accession of Intergovernmental Organisations to the Geneva Conventions for the Protection of War Victims”, United Nations Juridical Yearbook (1972), 153. Hereinafter referred to as Legal Opinion; M. Zwanenburg, “The Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law: Some Preliminary Observations”, International Peacekeeping 5 (1999), 133 et seq. (134).
154. Legal Opinion, see above.
155. See e.g. UNMIK/REG/2000/47 of 18 Augustus 2000, Sec. 2.4. This regulation subjected the KFOR personnel to the exclusive criminal jurisdiction of their respective sending states. Cerone, see note 136, 486.
156. R.D. Glick, “Lip Service to the Law of War: Humanitarian Law and United Nations Armed Forces”, Mich. J. Int’l L. 17 (1995), 53 et seq.
157. See De Wet, see note 18, 204 et seq.
158. C. Greenwood, “International Humanitarian Law and United Nations Military Operations”, Yearbook of Humanitarian Law 1 (1998), 3 et seq. (14).
159. Zwanenburg, see note 153, 134; see also Glick, see note 156, 70.
160. Greenwood, see note 158, 24; E.T. Bloom, “Protection of Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel”, AJIL 89 (1995), 625.
161. Doc. A/49/742 (1994). Hereinafter referred to as the Safety Convention. It has entered into force on 15 January 1999.
162. Safety Convention, see above, article 1 (c)(i); Bloom, see note 160, 622-623.
163. Safety Convention, see note 161, article 2 (2); Greenwood, see note 158, 25.
164. Greenwood, see note 158, 25; see also id. “Protection of Peacekeepers: The Legal Regime”, Duke J. Comp.& Int’l L. 7 (1996), 185 et seq. (199 et seq.); Bloom, see note 160, 625 et seq.
165. Greenwood, see note 158, 25; see also Bloom, see note 160, 624.
166. D. Shraga, “The United Nations as an Actor Bound by International Humanitarian Law”, 317 et seq., in: L. Condorelli, Les Nations Unies et le Droit International Humanitaire, 1986.
167. As opposed to “command and control”.
168. See Shraga, see note 166, 76; Greenwood, see note 158, 25. In Somalia, for example, the United Nations and the United States characterized their involvement in the conflict against rebel groups and dissident factions as internal. Although the Safety Convention was not yet in force at the time, the example illustrates that the submission that any third-party intervention in an internal conflict would internationalise the conflict, would not be consistent with United Nations practice.
169. See note 152.
170. For an extensive discussion of the illegality of the invasion see De Wet, see note 18, 284 et seq.
171. The norms which have acquired customary status and therefore bind an international organization such as the United Nations, include the substantive norms of the four 1949 Geneva Conventions, the Hague Regulations, as well as certain parts of the two Additional Protocols to the 1949 Geneva Conventions. See Doc. S/25704 (1993), para. 35; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 66 et seq. (257 et seq.); Greenwood, see note 158, 16-17. See also the conclusions of the Institut de Droit International, Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which the United Nations Forces may be Engaged, Annuaire de l’Institut de Droit International 54 II (1971), 465 et seq.; P. Benvenuti, “Le Respect du Droit International Humanitaire par les Forces des Nations Unies: La Circulaire du Secrétaire Général”, RGDIP 105 (2001), 355 et seq. (360); L. Conforti, “La Compatibilité des Sanctions du Conseil de Sécurité avec le Droit International Humanitaire – Commentaire”, in: V. Gowlland-Debbas (ed.), United Nations Sanctions and International Law, 2001, 236-237.
172. In all of these instances the safety and efficient functioning of the civil administrations were dependent on their protection by the military forces. In addition, the military forces themselves frequently engaged in civilian tasks, such as ordinary policing.
173. Irmscher, see note 135, 379.
174. Irmscher, see note 135, 383.
175. Irmscher, see note 135, 377; Marauhn, see note 72, 115.
176. Stahn, see note 22, 141.
177. The Hague Regulations, see note 146, article 43; Stahn, see note 22, 141.
178. Stahn, see note 22, 141.
179. See Irmscher, see note 135, 389. The guarantee of continuity in the laws is the most salient sign of the continuing sovereignty of the regular government, in that it freezes the status quo ante bellum.
180. Article 43 of the Hague Regulations, note 146. See also Christian Society for the Holy Places v. Minister of Defence and Others, ILR 52 (1979) 514-515.
181. Fourth Geneva Convention, note 142, article 203; Irmscher, see note 135, 388. If the court system has collapsed because of closure and lack of personnel, an occupant can set up new courts and swear in new judges. See Marauhn, see note 72, 115.
182. Doc. S/2000/1196, paras 82-83. According to article 55 of the Hague Regulations, see note 146, public immovable property shall only be administered and used in accordance with the rules of “usufructuary” use, but the capital or substance must be safeguarded. See also Irmscher, see note 135, 389.
183. Irmscher, see note 135, 391.
184. Irmscher, see note 135, 393.
185. See e.g. UNTAET/REG/2000/8 of 25 February 2000; UNTAET/REG/ 2001/15 of 21 July 2001; UNTAET/REG/2001/30 of 30 November 2001.
186. As concretised, inter alia, by the extensive modernization of the banking system and the licensing of commercial telecommunication services and equipment. See CPA/ORD/7 June 2003/12; CPA/ORD/19 September 2003/40, including Annex A; CPA/ORD/8 June 2003/11.
187. Irmscher, see note 135, 395; Stahn, see note 22, 140-141.
188. Irmscher, see note 135, 394.
189. This remains so, despite the fact that they were formally independent states, as opposed to colonized territories.
190. Hufnagel, see note 1, 214.
191. Bothe/ Marauhn, see note 123, 220. The institution of a trust implies the holding of rights and powers by a person (the trustee) for or on behalf of another person (the trustor) in order to accomplish the specific purposes which are the heart of the mission of the trustee and the establishment of the trust. While there may be cases in which it is difficult to identify the trustor and while there may even be cases involving several trustors, this does not affect the underlying concept as such. Stahn, see note 39, 141; Hufnagel, see note 1, 213.
192. Hufnagel, see note 1, 215.
193. See note 125.
194. See e.g. Kosovo: S/RES/1244 (1995) of 10 June 1995, paras 11 (d) and 11 (f); Iraq: S/RES/1483 (2003) of 22 May 2003, paras 8 (c) and 9 and S/RES/ 1511 (2003) of 16 October 2003, paras 1 and 15; East Timor: S/RES/1272 (1999) of 25 October 1999, para. 8 and S/RES/1410 (2002) of 17 May 2002, para. 8. In the case of Bosnia-Herzegovina this limited duration is reflected by the Mission Implementation Plan of the Office of the High Representative of 30 January 2003, available at .
195. This dual character was also acknowledged by the Constitutional Court of Bosnia-Herzegovina. See Request for Evaluation of Constitutionality of the Law on State Border Service, Decision, No. U 9/00, 3 November 2000, available at .
196. Stahn, see note 39, 148.
197. Bothe/ Marauhn, see note 123, 230; Stahn, see note 39, 146.
198. Bothe/ Marauhn, see note 123, 155; Stahn, ibid.
199. Bothe/ Marauhn, see note 123, 155.
200. See De Wet, see note 18, 252 et seq.
201. S/RES/1267 (1999) of 1267 of 15 October 1999, para. 4 (b) et seq.; S/RES/1333 (2000) of 19 December 2000, para. 8 (c); S/RES/1390 (2002) of 28 January 2002, para. 2 (a), 5 (a).
202. See UNMIK/REG/1999/ of 25 July 1999, sec. 2; UNMIK/REG/1999/24 of 15 November 1999, secs 1.2 and 1.3; UNMIK/REG/2000/59 of 27 October 2000; UNTAET/REG/1999/1 of 27 November 1999, sec. 3.1; Stahn, see 39, 145. Compare 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. (155). They seem to argue that there is a presumption of continuity of the pre-existing law in case of trusteeship-like administrations. However, if this were the case, it would only hold true if and to the extent that the pre-existing law is compatible with the United Nations regulations.
203. CPA/REG/16 May 2003/01, at s 3(1), available at .
204. Grant, see note 43, 41.
205. Article X of Annex 4, General Framework Agreement, see note 3.
206. Grant, see note 43, 42-43.
207. It is also questionable whether such open-ended control would be reconcilable with the right to self-determination, which poses a limitation to Security Council powers. See extensively De Wet, see note 18, 326 et seq.
208. UNMIK/REG/1999/1 of 25 July 1999, Sec. 4; UNTAET/REG 1999/1 of 27 November 1999, Sec. 4; CPA/REG/ of 16 May 2003/01, s. 3 (1). In the case of Iraq, it is unlikely that any amendment would already be introduced by the Interim Government. In accordance with the Law for the Administration of Iraq in the Transitional Period (TAL), the Interim Government’s tasks are essentially limited to leading the country to free elections, the drafting of a permanent constitution and the formation of an Iraqi government pursuant to the permanent constitution. The TAL and CPA documents are available at available at .
209. See Gordon, see note 87, 318 who claims that only the direct consent of the population, e.g. by means of a referendum, would constitute the consent needed for a trusteeship-like administration. Anything less would contravene their right to self-determination.
210. Hufnagel, see note 1, 99-100, 294-95; Ratner, see note 34, 10.
211. See also A/RES/46/18 of 20 November 1991; Hufnagel, see note 1, 100; Ratner, see note 34, 10. But see the Prosecutor v. Morris Kallon & Brimma Bazzy Kamara, Special Court for Sierra Leone, Appeals Chamber, Case No. SCSL-2004-15-AR72(E) and Case No. SCSL-2004-16-AR72(E) of 13 March 2004, para. 39. The Court was not willing to accept the international character of the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone of 7 July 1999, despite the fact that it was co-signed by the United Nations. It regarded the Lomé Agreement as a municipal agreement, with the role of the United Nations as that of a moral guarantor that was not a party to the treaty itself.
212. See the letter of the Dutch Ministers of Foreign Affairs and Development Cooperation to the Dutch Parliament of 1 June 2004 (Tweede Kamer, vergaderjaar 2003-2004, 24 832, nr. 5, 5).