The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis

Max Planck Yearbook of United Nations Law

Volumn 5, Issue , 2001, Pages 105-183

  Stahn, Carsten ^a  

^a NONE

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EID: 85181005078     PISSN: 13894633     EISSN: None     Source Type: Book Series    
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References (355)

1. 1 See para. 10 of S/RES/1244 (1999) of 10 June 1999.
2. 2 See para. 1 of S/RES/1272 (1999) of 25 October 1999.
3. 3 See generally on the issue of UNMIK J.A. Frowein, "Notstandsverwaltung durch die Vereinten Nationen", in: Volkerrecht und Deutsches Recht, Festschrift fur W. Rudolf 43 et seq.; C. Tomuschat, "Yugoslavia's Damaged Sovereignty over the Province of Kosovo", in: Liber Amicorum Kooijmans (forthcoming); J. Ringelheim, "The legal status of Kosovo", in: Kosovo, 1999-2000, The Intractable Peace, Working Group, European University Institute, available under http://www.iue; C. Stahn, "International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges Ahead" ZaoRV 61 (2001), 107 et seq.; 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. 2001, forthcoming; M. Ruffert, "The Administration of Kosovo and East Timor by the International Community", ICLQ 50 (2001), 555 et seq.; M. Bothe/ T. Marauhn, "UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council Mandated Trusteeship Administration", in: Kosovo and the International Community (forthcoming); H. Stromeyer, "Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and in East Timor", AJIL 95 (2001), 46 et seq.; M. J. Matheson, "United Nations Governance of Postconflict Societies", AJIL 95 (2001), 76 et seq.; E. Lagrange, "La mission interimaire des Nations Unies au Kosovo, nouvel essai d'administration directe d'un territoire", A.ED.I. 45 (1999), 335 et seq.; T. Garcia, "La mission d'administration interimaire des Nations Unies au Kosovo", RGDIP 104 (2000), 61 et seq.
4. See on the issue of UNTAET J. Chopra, "The UN's Kingdom of East Timor", Survival 42 (2000), 27 et seq.; S. Linton, "Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor", Melbourne University Law Review 25 (2001), 122 et seq.; C. Schreuer, "East Timor and the United Nations", International Law Forum du droit international 2 (2000), 18 et seq.; G. Burdeau, "Quelle voie pour le Conseil de securite apres Paffaire du Kosovo? Le ban d'essai du Timor-Oriental", ibid., 32 et seq.
5. y 1999, 37 et seq.; S. R. Ratner, The New UN Peacekeeping, 1995, 89 et seq.; F.-E. Hufnagel, UN-Friedensoperationen der zweiten Generation, 1996.
6. Treaty of Peace between the Principal Allied and Associated Powers and Germany of 28 June 1919 (Treaty of Versailles), Consolidated Treaty Series, Vol. 225 (1919), 189 et seq.
7. The mandate of the League of Nations was based on article 49 of the Treaty of Versailles. See generally on the Saar Territory F. Munch, "Saar Territory", in: R. Bernhardt (ed.), EPIL IV (2000), 271 et seq.
8. The relationship between Danzig and the League of Nations was based on article 103 of the Treaty of Versailles. Cf. on the role of the League of Nations with respect to Danzig M. Ydit, Internationalized Territories, 1961, 194 et seq. See also on the proposed internationalization of Trieste and Jerusalem, under III. 3.
9. 9 See in particular the United Nations Transition Group in Namibia, established by S/RES/431 (1978) of 27 July 1978 and the United Nations Transitional Authority in Cambodia provided for under article 6 of the Agreement on a Comprehensive Political Settlement on the Cambodia Conflict of 23 October 1991. For a survey of the practice of the United Nations during that period, see Ratner, see note 5, 117 et seq.; S. K. Han, "Building a peace that lasts: The United Nations and Post-Civil War Peace Building", N.Y.U. J. Int'L L. & Pol 26 (1994), 837 et seq.
10. 10 See S/RES/1037 (1996) of 15 January 1996. See also the Report of the Secretary-General pursuant to S/RES/1025 (1995) of 30 November 1995, Doc. S/1995/1028 of 13 December 1995, para. 5. On the powers of UNOSOM II in Somalia, see under III. 6.
11. 11 See Section 1 of UNMIK Regulation 1999/1 of 25 July 1999 on the Authority of the Interim Administration in Kosovo and Section 1 of the UNTAET Regulation 1999/1 of 27 November 1999 on the Authority of the Transitional Administration in East Timor.
12. 12 See para. 11 (e) of S/RES/1244 ("facilitating a political process designed to determine Kosovo's future status, taking into account the Rambouillet accords**) and para. 3 of the preamble of S/RES/1272 ("a process of transition under the authority of the United Nations towards independence").
13. See the references in note 11. For a critical account of the powers of UNMIK, see Stahn, International Territorial Administration, see note 3, 149 et seq. See also the critical remarks by Chopra with respect to UNTAET: "The organisational and juridical status of the UN in East Timor is comparable with that of a pre-constitutional monarch in a sovereign kingdom.", Chopra, see note 4,29.
14. For a detailed discussion of the concept of trusteeship within the context of international territorial administration, see Bothe/ Marauhn, see note 3, sub. I and IV and Stahn, International Territorial Administration, see note 3,132 et seq., 137 et seq.
15. In July 1974 Portugal officially recognized the right to self-determination of all Portuguese in its constitution. See Constitutional Law No. 7/74, July 1974, article 2, reproduced in: H. Krieger (ed.), Cambridge International Documents Series: East Timor and the International Community: Basic Documents, 1997, 34.
16. The Democratic Union of East Timor (UDT) and the Revolutionary Front for an Independent East Timor (FRETILIN) supported independence. FRETILIN declared the independence of East Timor on 28 November 1975. See P. Lawrence, "East Timor", in: R. Bernhardt (ed.), EPIL II (1995), 3 et seq.
17. The Timorese Democratic People's Union (APODETI) favoured integration with Indonesia. See J. Toole, "A false sense of security: Lessons learned from the United Nations Organization and Conduct Mission in East Timor", Am. U. L. Rev. 16 (2000), 199 et seq., (208).
18. 18 The Indonesian parliament approved a bill on the incorporation of East Timor which became effective on 17 July 1976. See R. S. Clark, "East Timor, Indonesia and the International Community", Temp. Int'l & Comp. L. /. 14 (2000), 75 et seq., (81) and Linton, see note 4,126.
19. 19 Cf. Toole, see note 17,213.
20. 20 S/RES/384 (1975) of 22 December 1975, paras 1-2.
21. 21 S/RES/389 (1976) of 22 April 1976, para. 2.
22. 22 These states include Australia, Bangladesh, India, Iran, Iraq, Jordan, Malaysia, Marocco, Oman, the Philippines, Saudi Arabia, Singapore, Surinam and Thailand.
23. 23 The Member States of the European Union, for example, never accepted Indonesia's de jure or de facto sovereignty over East Timor. See on the position of European states R. Goy, "Uindependance du Timor Oriental", AED.I. 45 (1999), 203 et seq., (212 et seq.).
24. 24 For an analysis of the Portuguese position, see M.C. Maffei, "The Case of East Timor before the International Court of Justice - Some Tentative Comments" EJIL 4 (1993), 223 et seq.
25. 25 See Case concerning East Timor (Portugal v. Australia), Advisory Opinion of 30 June 1995, ICJ Reports 1995, 90 et seq. See on this decision T.D. Grant, "East Timor, the U.N. System, and Enforcing Non-Recognition in International Law", Wand. J. Transnat'l L. 33 (2000), 273 et seq., (298 et seq.); R. Burchill, "The ICJ Decision on the Case Concerning East Timor: The illegal use of force validated", Journal of Armed Conflict Law 2 (1997), 1 et seq; R. S. Clark, "Obligations of Third States in the Face of Illegality - Ruminations Inspired by the Weeramantry Dissent in the Case Concerning East Timor", in: A. Anghie/ G. Sturgess (ed.), Legal Visions of the 21st Century: Essays in honour of Judge Christopher Weeramantry, 1998, 631 et seq.
26. 26 See also Clark, see note 18, 83.
27. 27 Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor of 5 May 1999, Doc. S/1999/513, including Annexes MIL
28. 28 For a survey of the autonomy proposal, see J.-M. Sorel, "Timor Oriental: Un resume de 1'histoire du droit international", RGDIP 104 (2000), 37 et seq., (46 et seq.)
29. 29 See article 5 of the Agreement of 5 May 1999.
30. 30 See article 6 of the Agreement of 5 May 1999.
31. 31 Ibid.
32. 32 98 per cent of the registered voters went to the polls. 94.388 (21,5 per cent) voted for autonomy and 344. 580 (78,5 per cent) voted against it. See UN Press Release, GA/9691 of 17 December 1999.
33. 33 See para. 3 of the preamble of S/RES/1264.
34. 34 See Report of the International Commission of Inquiry to the Secretary-General, Doc. A/54/726-S/2000/59 of (2000) of 31 January 2000. See also the Report on the situation of human rights in East Timor, Doc. A/54/660 (1999) of 10 December 1999.
35. 35 See on the legal problems encountered by INTERFET M. Kelly/ T. McCormack/ P. Muggleton/ B. Oswald, "Legal aspects of Australia's involvement in the International Force for East Timor", Int'l Rev, of the Red Cross 83 (2001), 101 et seq.
36. The Indonesian People's Consultative Assembly revoked the law integrating East Timor within the Unitary State of the Republic of Indonesia on 19 October 1999. See para. 39, Doc. A/54/654 of 13 December 1999 "Question of East Timor*'. See also the reference to that date in para. 4 of the preamble of S/RES/1272.
37. Report of the Secretary-General on the situation in East Timor UN Doc. S/1999/24 of 4 October 1999.
38. See the reference to the Agreements of 5 May 1999 in para. 2 of the preamble of S/RES/1244.
39. Cf. Tomuschat, see note 3, sub. 5.2.
40. But see Chopra, see note 4, 29, who notes that when a delegation of Indonesian representatives met UN officials on 20 October 1999 to deliver their acceptance of the August election results, "the Secretary-General's Personal Representative for East Timor, Jamsheed Marker, informed them that no such formality was required since the UN had never recognised the Indonesian occupation as legitimate."
41. See para. 25 of the Report, see note 37.
42. 42 See paras 36 and 37, ibid. "UNTAET will also establish a mechanism for consultation with Portugal, given its special responsibilities. Consultation will also be organized with Indonesia, as necessary" (emphasis added).
43. 43 See J. Chopra, "Introductory Note to UNTAET Regulation 13 (2000)", ILM 39 (2000), 936 et seq. (937): "On 20 October 1999, Lisbon's representative in New York, Ambassador Antonio Monteiro, expressed to UN officials that Portugal would relinquish its legal ties to East Timor and consider UNTAET its successor with the passage of the Security Council mandate.*' See also Chopra, see note 4,29.
44. 44 Chopra takes the view that "Resolution 1272 ... became the instrument for bestowing sovereignty over East Timor to the UN, even though it did not explicitly use the word. " Chopra, see note 4,29.
45. 45 See The United Nations and Decolonization, under http://www.un.org/Depts/dpi/decolonization "The current administering powers are France, New Zealand, the United Kingdom and the United States. East Timor is now administered by the United Nations Transitional Administration in East Timor (UNTAET).*
46. For a discussion of Kosovo's legal status under different SFRY constitutions, see J. Marko, "Die staatsrechtliche Entwicklung des Kosovo/a von 1913-1995", in: J. Marko (ed.), Gordischer Knoten Kosovo/a: Durchschlagen oder entwirrenf, 1999, 15 et seq; E. Pichl, "Kosovo in den jugoslawischen Verfassungssystemen: 1974 bis 1998**, in: Marko, ibid., 75 et seq.
47. 9 1998, 343 et seq.; A. J. Bellamy, "Human Wrongs in Kosovo 1974-99", International Journal of Human Rights^ Special Issue: The Kosovo Tragedy: The Human Rights Dimensions^ 2000,105 et seq.
48. Article 110 of the Serbian Constitution of 1990 provided that "the statute is the highest legal act of the autonomous province". The adoption of the statute, however, was made dependent on the prior approval of the Serb National Assembly. The powers of the Assembly of Kosovo were limited to the adoption of "decisions and general enactments in accordance with the [Serbian] Constitution and the law". See article 109 of the 1990 Constitution of Serbia. Furthermore, the amendments transferred both the control over the Kosovar security forces and the Kosovo judicial system to the government of Serbia. See on the key elements of the constitutional changes Bellamy, see note 47, 113. Marko writes: "[The] provisions concerning the legal status of the Autonomous Provinces were a clear violation not only of the Federal constitution's provisions of 1974, but also of the Serb Republic's constitutional amendment XLVII § 2, adopted in 1989 which stated unequivocally that the "position, rights and duties of the autonomous provinces regulated by the federal constitution must not be altered by amendments of the Serbian constitution" See J. Marko, "Kosovo/a - A Gordian Knot?", in: Marko, see note 46,261 et seq., (265).
49. aa 87 per cent participation rate and an approval by 99 per cent of the voters". Cf. Marko, see above, 265. The electorate was asked to vote on "Kosovo as a sovereign and independent state with the right of constitutive participation in an alliance of sovereign Republics (in Yugoslavia) on the basis of freedom and full equality of the sovereign republics in the alliance".
50. 50 Oeter speaks of a "shadow government", see S. Oeter, "Yugoslavia, Dissolution", in: Bernhardt, see note 7, 1563 et seq., (1591 et seq.). See on the parallel structure also R. Caplan, "International Diplomacy and the Crisis in Kosovo", IntHAff. 74 (1998), 451 et seq.
51. y 1991, 38513.
52. 52 Doc. S/1999/648 of 7 June 1999. Cf. on the agreement M. Weller, "The Rambouillet Conference on Kosovo", Int'lAff. 75 (1999), 211 et seq.
53. 53 See Section I, article I, para. 4 of the Rambouillet Accord. Kosovo's final status, however, was to be decided on the basis of a number of criteria, including inter alia "the will of the people". Cf. article I, para. 3 of Chapter 8 of the Rambouillet Accord.
54. 54 See para. 10 of S/RES/1244 (1999) of 10 June 1999.
55. 55 See para. 11 of S/RES/1244, its Annex 1 and para. 8 of Annex 2.
56. 56 See E. Klein, Statusvertrdge im Volkerrecht, 1980,107 and 110. See also the Dissenting Opinion of Judge Sir G. Fitzmaurice in the Namibia Case, Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 et seq., (294): "Even when acting under Chapter VII of the Charter, the Security Council has no power to abrogate or alter territorial rights ... Even a war-time occupation of a country or territory cannot operate to do that. It must await the peace settlement... The Security Council might, after making the necessary determinations under Article 39 of the Charter, order the occupation of a country or piece of a territory to restore peace and security, but it could not thereby, or as part of that operation, abrogate or alter territorial rights." For a broader understanding of the powers of the Security Council under Chapter VII, cf. Matheson, see note 3, 85: *[T]here can in fact be situations in which the Security Council would be justified in directing a permanent change in some aspects of the status, boundaries, political structure, or legal system of a territory within a state, if the Council should determine that doing so is necessary to restore and maintain international peace and security".
57. Similarly, the powers of the administrators of non-self-governing territories have been compared "with the powers under civil law of a guardian over a ward." In 1954, some UN Member States observed that one can no more speak of the sovereignty of an administering power over a non-self-governing territory than one can speak of a guardian's ownership of his ward's property. See Doc. A/PV.485 (1954), 146.
58. 58 See G. Hoffmann, "Protectorates", in: R. Bernhardt (ed.), EPIL III (1997), 1153etseq.
59. 59 Cf. Ydit, see note 8, 21: * Internationalised territories are special State entities in which supreme sovereignty is vested in (or de facto exercised by) a group of States or in the organised international community*'. See also H. Hannum, Autonomy, Sovereignty and Self-Determination, 1996,17.
60. 60 See Report of the Secretary-General on the United Nations Interim Administration in Kosovo, Doc. S/1250/1999 of 23 December 1999, para. 35.
61. 61 It is therefore difficult to assume that "sovereignty over Kosovo" is temporarily vested with the UN. For a different view, see Ringelheim, see note 3.
62. 62 See Regulation No. 2001/9 on a Constitutional Framework for Provisional Self-Government in Kosovo, available under http://www.un.org/peace/ kosovo-for a full account see Stahn, Constitution without a State, see note 3.
63. 63 Cf. Chapter 1, para. 1.1. of the Constitutional Framework.
64. 64 See Chapter 8, para. 8.1 of the Constitutional Framework.
65. 65 See A/RES/2248 (XXII) of 19 May 1967.
66. 66 Cf. Klein, see note 56, 304. See Id., "Namibia", in: Bernhardt, see note 58, 485 et seq., (487 et seq.); A. Junius, Der United Nations Council for Namibia, 1989, 89; ICJ Reports 1971, 16 et seq., (57 para. 131 "territory having an international status**).
67. 67 See Exchange of Notes constituting an Agreement between the Government of Australia and the United Nations Transitional Administration in East Timor (UNTAET) concerning the continued Operation of the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia of 11 December 1989, entered into force on 10 February 2000, Australian Treaty Series 2000, No. 9.
68. Cf. Chopra, see note 4, 30. Pursuant to the International Development Association-UNTAET Trust Fund for East Timor Grant Agreement, UNTAET established a system of village and sub-district councils for the allocation of development funds. See Regulation No. 2000/13 of 10 March 2000.
69. The most recent examples are the United Nations Transitional Authority in Cambodia (UNTAC) and the establishment of the Office of the High Representative (HR) in Bosnia and Herzegovina, endorsed by the Security Council.
70. In Cambodia, the United Nations operation was governed by the Paris Agreement on a Comprehensive Political Settlement of the Cambodia Conflict of 23 October 1991, cf. in this respect A. Rapp/ C. Philipp, "Conflicts Cambodia/Kampuchea", in: R. Wolfrum, United Nations Law Policies and Practice, 1995, Vol. 1, 200 et seq. Article 3 of the Accord vested sovereignty in a Supreme National Council (SNC) composed of representatives of Cambodian factions. Article 6 then went on to state: "The SNC hereby delegates to the United Nations all powers necessary to ensure the implementation of these Agreements, as described in Annex 1." The Paris Agreement is reproduced in: ILM 31 (1992), 180 et seq. For a legal study of the agreements, see S. R. Ratner, "The Cambodia Settlements Agreements**, AJIL 87 (1993), 1 et seq.; Hufnagel, see note 5, 85 et seq. The High Representative in Bosnia was vested with the "final authority" to interpret the civilian aspects of Annex 10 of the Dayton Peace Agreement. For a full account, cf. Stahn, International Territorial Administration, see note 3, 165 et seq. On the particularities of the Bosnian constitutional system, see id., "Die verfassungsrechtliche Pflicht zur Gleichstellung der drei ethnischen Volksgruppen in den bosnischen Teilrepubliken - Neue Hoffnung fur das Friedensmodell von Dayton ?*, ZaoRV 60 (2000), 663 et seq.
71. See Treaty of Versailles, see note 6,189 et seq., Part. Ill, Section IV, Annex, Art. 16.
72. The only real restriction on the legislative power of the Governing Commission related to mines. See on the practice of the Commission, Ratner, see note 5, 91 et seq.
73. See Treaty of Versailles, see note 6, Part III, Section IV, Annex, article 21.
74. See also Ydit, see note 8, 224 ("a temporary trusteeship on behalf of the League of Nations**).
75. See Treaty of Versailles, Part III, Section IV, Annex, article. 49. Ydit notes that "what really remained for Germany was only the nudum jus to the territory itself**, Ydit, see note 8, 45. Some authors therefore took the view that sovereignty was vested with the League of Nations or that there was no sovereignty at all over the Saar Territory.
76. Ydit concludes that "the sovereign power - although formally vested in the people (article 3 of the Danzig Constitution) - was shared by Danzig, Poland and the League of Nations". For a full discussion of the disputed status of Danzig, see id., see note 8, 224-228.
77. See arts 47-49 of the Constitution of the Free City of Danzig, in: League of Nations Official Journal, Special Suppl. No. 7, July 1922.
78. See article 103 of the Treaty of Versailles.
79. 79 The Legislative Assembly was the supreme legislative power in all matters. The Senate held the executive authority. Most notably, the Senate represented the City of Danzig in its relations with the League of Nations and Poland and signed international treaties on behalf of Danzig. Ydit, see note 8,191-193.
80. 80 See article 104, para. 6 of the Treaty of Versailles.
81. 81 Treaty of Peace with Italy, 10 February 1947, UNTS Vol. 49 No. 747.
82. 82 The Statute was adopted by the Security Council at its 91th Sess. held on 10 January 1947 by ten votes to one. Australia objected to the adoption of the Statute by arguing that it imposed functions on the Security Council, which the Council was not authorized to assume under the United Nations Charter. See Repertoire of the Practice of the Security Council, 1946-1954, 482 et seq.
83. 83 The Governor of Trieste should have been appointed by the Security Council, after consultation with Italy and Yugoslavia.
84. 84 See arts 19 and 20 of the Permanent Statute of the Free Territory of Trieste, Annex VII of the Peace Treaty with Italy.
85. 85 See arts 10, 20 and 22 of the Permanent Statute of the Free Territory of Trieste.
86. 86 See arts 16, 24 and 27 of the Permanent Statute of the Free Territory of Trieste.
87. 87 See H. Kelsen, The Law of the United Nations, 1961, 832.
88. 88 For a detailed analysis, cf. Ydit, see note 8, 256 et seq.
89. 89 A/RES/181 (II) of 29 November 1947.
90. 90 Statute for the City of Jerusalem, Draft Prepared by the Trusteeship Council, UN TCOR, 2nd Sess., Third Part, Annex, 4, Doc. T/118/Rev.2 of 21 April 1948.
91. 91 See arts 15 and 20-24 of the Statute for the City of Jerusalem.
92. 92 For a survey of the powers of the Governor, cf. Ydit, see note 8, 288 et seq., 295 et seq.
93. See article 12 of the Statute for the City of Jerusalem.
94. On the non-implementation of the Statute, see Ydit see note 8, 297 et seq. See also C. Toussaint, The Trusteeship System ofthe United Nations, 1956, 208. The city was divided between Israel and Jordan between 1949 and 1967.
95. See on this issue Ratner, see note 5, 109 et seq.; Chopra, see note 5, 44; R. Higgins, United Nations Peacekeeping 1946-1967, Documents and Commentary, Vol. 2,1970,91 et seq.
96. Agreement between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West New Guinea (West Irian) of 15 August 1962, UNTS Vol. No. 437 No. 6311.
97. See article XVIII of the Agreement.
98. See article V of the Agreement.
99. See article XI of the Agreement
100. See article IX and XIII of the Agreement.
101. See article XXII of the Agreement.
102. For a historical comparison, see N. Schrijver, "Some aspects of UN involvement with Indonesia, West Irian and East Timor", International Law Forum 2 (2000), 26 et seq.
103. a[T]he Netherlands will transfer administration of the territory to a United Nations Temporary Executive Authority (UNTEA) ... The UNTEA will in turn transfer the administration to Indonesia in accordance with article XII**.) See also para. 6 b and c of the Memorandum on the Future and Development of Netherlands New Guinea, reprinted in: Higgins, see note 95, 97 ("(b) [T]he Netherlands is prepared to transfer its sovereignty to the people of Netherlands New Guinea; (c) In this connexion, the Netherlands is prepared to agree that its present powers should, to the extent required for the above purpose, be exercised by an organization or international authority, established by and operating under the United Nations, which would be vested with executive powers and which could gradually take over tasks and responsibilities and thus prepare the population for early self-determination under stable conditions."
104. See article XII of the Agreement.
105. See M. Kelly, Restoring and Maintaining Order in Complex Peace Operations, 1999, 100. Higgins speaks of "a sort of trusteeship (though the term "trusteeship* was not explicitly used), until the people of the territory could be prepared for a plebiscite". See Higgins, see note 95,95.
106. 107 See para. 3 of A/RES/1752 (XVII) of 21 September 1962. For a full account, see Higgins, see note 95,120 et seq.
107. 108 A/RES/2145 (XXI) of 27 October 1960, adopted by 119 affirmative to 2 negative votes (South Africa, Portugal), with 3 abstentions (United Kingdom, France, Malawi).
108. 109 See on the practice of the Security Council with respect to Namibia, Klein, see note 66, 487. On the 1971 Advisory Opinion of the ICJ upon request by the Security Council, see ICJ, see note 66, 16. For an analysis of the judgment, see R. Zacklin, "The Problem of Namibia in International Law", RdC 171 (1981), 225 et seq., (288 et seq.).
109. 110 See L Sagay, The Legal Aspects of the Namibian Dispute, 1975, 271. See also Klein, see note 66, 487; L. Herman, "The Legal Status of Namibia and the United Nations Council for Namibia*, CYIL 13 (1975), 306 et seq., (322).
110. 111 See R. Dreyer, "The United Nations and Namibia: An Overview (1946-1990)*, International Geneva Yearbook 1991, Vol. V, 27 et seq., (29 et seq.).
111. 112 See Zacklin, see note 109, 318 et seq. For a discussion of the binding force of the decree and its recognition by national courts, see also H.G. Schermers, "The Namibia Decree in National Courts", ICLQ 26 (1977), 81 et seq.; Junius, note 66,137 et seq.
112. 113 For a survey of the practice of the Council, see Junius, ibid., 194 et seq.
113. 114 For a survey of the practice of the Council, see Zacklin, see 109, 311 et seq.
114. 115 See S/RES/814 (1993) of 26 March 1993, para. 4 c) and g).
115. 116 See article 1 Sec. 4 of the General Agreement signed in Addis Ababa on 8 January 1993, Doc. S/25168 Annex II (1993).
116. 117 See on the Addis Ababa Conference and the General Agreement, Chopra, see note 5,156.
117. 118 See the Reports of the Secretary-General on the situation in Somalia, Report of 12 November 1993, Doc. S/26738, para. 28 and Report of 6 January 1994, Doc. S/1994/12, para. 14.
118. 119 See Hufnagel, see note 5, 175 and 185. See also Chopra, see note 5, 142: *[I]n the absence of an existing infrastructure ... the UN had effectively the power of a governor-in-trust*.
119. 120 See Report of the Secretary-General of 12 November 1993, Doc. S/26738, para. 28.
120. 121 See Report of the Secretary-General of 17 August 1993, Doc. S/26317, Annex I, paras. 29 et seq.
121. 122 Cf. Report, see above, paras 42 et seq.
122. 123 Cf. Report, see note 121, paras 29,31 and 36.
123. 124 Cf. Report, see note 121, paras 25-29.
124. a[T]he promulgation of the Somali Penal Code of 1962 as the criminal law in force in Somalia by the Special Representative of the Secretary-General was capable of being interpreted by the USC/SNA as an overstepping of the UNOSOM II mandate**. See Doc. S/1994/653,17.
125. 126 Its mandate ended on 15 January 1998, when the Croatian Government resumed control over the UNTAES region.
126. 127 See Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, Doc. S/1995/951, Annex, entered into force on 22 November 1995, reproduced in: ILM 35 (1996), 184 et seq.
127. 128 See para. 1 of the Agreement.
128. 129 See S/RES/1037 (1996) of 15 January 1996. See also the Report of the Secretary-General pursuant to S/RES/1025 (1995) of 30 November 1995, Doc. S/1995/1028 of 13 December 1995, para. 5.
129. 130 See para. 2 of the preamble of S/RES/1037.
130. 131 See Report, see note 129, para. 6.
131. 132 See paras 10 and 11 of S/RES/1037.
132. 133 See para. 2 of S/RES/1037.
133. 134 See para. 17 of the Report, see note 129.
134. 135 See para. 14 of the Report, see note 129.
135. 136 Among these agreements are: The Agreement by the Croatian Pension Fund on Pension Services of 29 May 1997; the Declaration on Educational Certificates of 11 March 1997; the Declaration on Minority Education Rights of 6 August 1997; the Joint Statement on Reintegration of the Employment System of 11 September 1997; the Organization of Joint Councils of Municipalities of 23 May 1997 and the Declaration on Conditions for Judicial Reintegration of 30 September 1997. See Report of the Secretary-General to the Security Council of 4 December 1997, Doc. S/1997/953.
136. 137 The mandate of UNTAES ended on 15 January 1998.
137. The idea that the UN itself should become an administering authority was based on the belief that, in some cases, the organization might be more impartial or would have a broader outlook than a single member state. See L. M. Goodrich et aL, Charter of the United Nations, Commentary and Documents, 1969, 501.
138. See article 3 of the Statute for the City of Jerusalem.
139. The Report of the Working Committee on Jerusalem, established in accordance with a resolution of the Trusteeship Council passed at the 6th Mtg. of its 2nd Sess., on 1 December 1947 (Doc. T/122) contains the following statements: "Although the General Assembly of the United Nations vested the Trusteeship Council with power to define, to constitute and to administer the international regime of the City of Jerusalem, it is obvious that the City is not a trust territory and that the provisions of Chapters XII and XIII of the Charter are not generally applicable to the case. Therefore the Committee tried to avoid any arbitrary resemblance to the Trusteeship system; it considered rather that the legal status of this territory was a new one; Jerusalem would come, as it were, directly under the authority of the United Nations and it would be governed on behalf of the community of nations. Such would be the entirely original sense which might suitably be given to the term: Special International Regime."
140. 141 See D. Rauschning," On Article 81", in: B. Simma, Charter ofthe United Nations, 1994,955 et seq., (956).
141. 142 See Kelsen, see note 87, 832 et seq.; O. Schachter, "The Development of International Law through the Legal Opinions of the United Nations Secretariat *, BYIL 25 (1948), 95 et seq.; F. Seyersted, "United Nations Forces: Some legal problems", BYIL 37 (1961), 451 et seq.
142. 143 Cf. Kelsen, see note 87, 651.
143. 144 See the statements of the Representatives of Australia and Syria on the question of the Statute of the Free Territory of Trieste, Repertoire of the Practice of the Security Council, 1946-1951, 482. See also Kelsen, see note 87, 833: "When the Permanent Statute comes into force, the Council has to exercise - partly directly, partly through the Governor - functions usually conferred upon a head of state, which functions have nothing in common with anything the Council has to do under the Charter, except in case the Organisation itself is established as administering authority of a trust territory under Art. 81. This is the only case where the United Nations is authorised by the Charter to exercise rights of sovereignty over a territory, But the Free Territory of Trieste is certainly not a trust territory".
144. 145 See statement made by the Secretary-General on 10 January 1947, Repertoire of the Practice of the Security Council, 1946-1951,483.
145. 146 See S/RES/16 (1947) of 10 January 1947.
146. 147 It is surprising that the authority of the United Nations to establish UNTEA as a subsidiary body of the General Assembly has not been called into question. Higgins notes: "Those nations which explained the reason for the abstention from the vote in favour of the Agreement [between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West New Guinea] explained their case largely in terms of fears that the Agreement did not sufficiently provide for self-determination by the Papuans. France, who abstained, did not voice any objection to the effect that the General Assembly was unable to authorize the UN to participate in a governmental venture. And, as has been said, the Soviet Union, who might also have been expected to object, voted for the resolution." See Higgins, see note 95,121.
147. 148 The representative of Sweden e.g., considered that Resolution 2248 was flawed because "it did not command the broad persuasive support of resolution 2145 (XXI) and possibly was not a firm basis for further United Nations action". See GAOR 5th Special Sess., 1518th Mtg. See on the attitude of governments towards Resolution 2248 also the Report by the Secretary-General "Compliance of Member States with the United Nations Resolutions and Decisions relating to Namibia, taking into account the Advisory Opinion of the International Court of Justice of 21 June 1971", Doc. A/AC.131/37 of 12 March 1975.
148. 149 See ICJ Reports 1971,16 et seq., (52).
149. 150 See Schermers, see note 112, 85.
150. 151 See Klein, see note 56, 303: "Territorial zustandig sind ... die Vereinten Nationen, ... die in analoger Anwendung von Art. 81 SVN zur Administration befugt sind. In Ausiibung dieser Befugnis hat die Generalversammlung den 'Council for Namibia' errichtet...".
151. 152 For a detailed discussion, see Sagay, see note 110. See also Zacklin, see note 109, 310; Junius, see note 66,92 et seq.
152. 153 See on the concept of implied powers Reparation for Injuries Suffered in the Service of the United Nations, ICJ Report 1949, 174 et seq., (182) and Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports 1954,47 et seq., (56).
153. See also D. Sarooshi, The United Nations and the Development of Collective Security, 1999, 59 et seq.; Klein, see note 56,110.
154. In its Wimbledon ruling, the PCIJ stated in 1923 that the voluntary surrender of sovereign rights by way of an international agreement is not unlawful per se, but rather a legitimate act by which the contracting state makes use of its sovereign powers. See PCIJ, Case of the S.S. Wimbledon, Ser. A, Vol. 1(1923-1927), 25.
155. See also Sarooshi, see note 154, 62; Ratner, see note 70, 9.
156. See also Hufnagel, see note 5, 304.
157. See Commission III, Committee 3, Session of 23 May 1945, UNCIO Vol. 12, 353 et seq., 54-355, Doc. 539III/3/24.
158. Cf. J.A. Frowein, * On Article 39", in: Simma, see note 141, 610 et seq.
159. The organizational power to create subsidiary organs (Article 29) or to entrust certain functions to the Secretary-General (Article 98) is applicable to both, Chapter VI and Chapter VII operations. See M. Bothe, "Peacekeeping", in: Simma, see note 141, 590. See also Bothe/ Marauhn, see note 3, sub. III.l
160. See also Matheson, see note 3, 83-84; Bothe/ Marauhn, see note 3, sub. III.l; Ruffert, see note 3, 620-621.
161. See J.A. Frowein, "On Article 41", in: Simma, see note 141, 625.
162. See also Bothe, see note 160, 590.
163. Higgins sees the legal basis in Article 14 of the Charter. See Higgins, see note 95,120. See also Kelly, see note 106,100.
164. Sagay invokes the concept of implied powers. See Sagay, see note 110, 271: "Since it is clear that the establishment of the Council for South West Africa, and the appointment of a Commissioner for the Territory, was deemed necessary by the General Assembly for the performance of its functions in the mandated Territory, and that the Authority granted to the Commission does not exceed that of the General Assembly ... the constitutional or legal validity of the establishment of the Council cannot be in any doubt*. Cf. Case Certain Expenses of the United Nations, ICJ Reports 1962, 151 et seq.,(163).
165. The main problem lies in the limitation which Article 11 para. 2 of the Charter imposes on the powers of the General Assembly. For a discussion of what constitutes "action** which has to be referred to the Security Council, see Bothe, see note 160, 591-592.
166. a... the exclusion of the GA from the creation of such military organs now seems to be an established rule ... But this does not preclude the GA from authorizing the inclusion of some kind of security element in an essentially non-military mission, e.g. human rights or election monitoring."
167. For a survey see R. N. Chowdhuri, International Mandates and Trusteeship System: A Comparative Study\ 1955; D. Rauschning, "Mandates", R. Bernhardt (ed.), EPIL II (1995), 280 et seq.; J. Crawford, Creation of States, 1980, 225 et seq.; Kelsen, see note 87, 566 et seq., D. Rauschning, "On Article 75", see note 141, 933 et seq. and Sagay, see note 110,1 et seq.
168. For an insight into the legal concept of the trust, see Sagay, see note 110,17 et seq.
169. See the Separate Opinion of Sir Arnold Mc Nair in the International Status of South West Africa Case, ICJ Reports 1950,128 et seq., (149).
170. See also Kelsen, see note 87, 566.
171. See Article 22 para. 1 of the Covenant.
172. 174 Cf. Sagay, see note 110,26.
173. 175 See International Status of South West Africa Case, ICJ Reports 1950, 128 et seq., (132) "The mandate was created in the interests of the inhabitants of the territory, and of humanity in general^ as an international institution with an international object - a sacred trust of civilisation" (emphasis added).
174. 176 Article 22 para. 2 of the Covenant stated that the mandated territories were to be administered "on behalf of the League".
175. 177 See also the statement of the representative of Australia at the 22nd Mtg. of the Trusteeship Council, emphasizing that "the Charter establishes the administering authority as an authority in its own right" and that "neither the Charter nor the [trusteeship] agreements use the phrase 'on behalf of the United Nations'", Doc. T/P.V. 95, 87 et seq.
176. 178 See in particular Article 76 lit.(b), requiring "to promote the political, economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence...".
177. 179 See Article 87 of the Charter.
178. 180 See Article 79 of the Charter. In particular, any disposition of the trust territory requires the approval of the United Nations. For a discussion of the question of sovereignty over trust territories, see Kelsen, see note 87, 688 et seq., and D. Rauschning, "On Article 75", see note 141, 933 et seq., (937).
179. aThe effect of the 5 May 1999 Tripartite Agreement and the result of the 30 August 1999 vote was to entrust legal responsibility for East Timor to the UN in a relationship that is analogous to a Trusteeship under the UN Charter."
180. y 1999,156 et seq., (164-165).
181. 183 See para. 10 of the preamble of S/RES/1244 and para. 10.
182. 184 See article 6 of the Agreement of 5 May 1999 and para. 3 of the preamble of S/RES/1272.
183. 185 See J. Brierly, "Trusts and Mandates", BYIL 10 (1929), 217 et seq., (218-219): "The trust is not a species of ownership, but an institution to be contrasted with ownership ... the rights of the trustee have their foundation in his obligations: they are tools given to him in order to achieve the work assigned to him.*'
184. 186 See para. 11 of S/RES/1244 and paras 2 and 8 of S/RES/1272.
185. 187 The duration of the United Nations administration may vary from case to case. See para. 11 lit.(b) of S/RES/1244, allowing UNMIK to perform "basic civilian administrative functions where and as long as required" and para. 17 of S/RES/1272, establishing UNTAET "for an initial period until 31 January 2001".
186. 188 See also Bothe/ Marauhn, see note 3, sub. I and II. See with respect to Kosovo Franckx/ Pauwels/ Smis, see note 182, 164 ("de facto Trusteeship "). For a similar conclusion with respect to the Council for Namibia, cf. Sagay, see note 110, 268-269. See with regard to UNTEA, Higgins, see note 95, 95 ("a sort of trusteeship").
187. 189 See Section 2 of UNMIK Regulation 1999/1; Section 1.2 and 1.3 of UNMIK Regulation 1999/24, as amended by UNMIK Regulation 2000/59 and Section 3.1 of UNTAET Regulation 1999/1.
188. 190 See Section 3.2 of UNTAET Regulation 1999/1.
189. 191 See Section 1 of UNMIK Regulation 1999/24, as amended by UNMIK Regulation 2000/59.
190. 192 See article II2 of the Bosnian Constitution and its Annex I.
191. 193 See Chapter 3.3 of the Constitutional Framework.
192. 194 See Section 4 of UNMIK Regulation 1991/1.
193. 195 See Section 4 of UNTAET Regulation 1999/1.
194. 196 For the differentiation between "laws" and "regulations'*, see Section 1 of Regulation 1999/24 on the law applicable in Kosovo.
195. 197 See also Ruffert, see note 3, 622 et seq.; Bothe/ Marauhn, see note 3, sub. II.3.
196. In what might be called a Bosnian version of the US Supreme Court's Marbury v. Madison decision, the Constitutional Court of Bosnia and Herzegovina recently introduced the notion of 'functional duality', by holding that the High Representative acts both as a national organ of Bosnia and Herzegovina and as an international authority when adopting decisions in the form of national laws. A description of this concept is given in para. 5 of the judgment where the court notes that "... the legal role of the High Representative, as agent of the international community is not unprecedented ... Pertinent examples are the mandates under the regime of the League of Nations and, in some respects, Germany and Austria after the Second World War. Though recognised as sovereign, the States concerned were placed under international supervision, and foreign authorities acted in these States, on behalf of the international community, substituting themselves for the domestic authorities. Acts by such international authorities were often passed in the name of the States under supervision. Such situation amounts to a sort of functional duality: an authority of one legal system intervenes in another legal system, thus making its functions dual." See Constitutional Court of Bosnia and Herzegovina, Decision in the Case No. U 9/00 of 3 November 2000, reprinted in ZaoRV 61 (2001), 173 et seq. For an analysis of the decision, see Stahn, International Territorial Administration, see note 3, 166 et seq. The same idea has been expressed by some authors with reference to the authority of the Allied powers in Germany after 1945. They argued that the occupying powers exercised both military and public authority in Germany. See W. Grewe, Ein Besatzungsstatut fiir Deutschland, 1948, 82.
197. The Ombudsperson Institution argues that Security Council Resolution 1244 established UNMIK as "a surrogate state", see Special Report No. 1 on the Compatibility with recognised international standards of UNMIK Regulation No. 2000/47 of 26 April 2001, 8 and Special Report No. 2 on Certain Aspects of UNMIK Regulation No. 2000/59 Amending UNMIK Regulation No. 1999/24 on the Law Applicable in Kosovo of 30 May 2001, 4. For a summary see, Ombudsperson Institution in Kosovo, First Annual Report 2000-2001 of 18 July 2001.
198. See Klein, see note 66,488, Schermers, see note 112, 90.
199. 201 See Section 1 a) of UNMIK Regulation 2000/1.
200. 202 See Section 2.1 of UNMIK Regulation 2000/1.
201. 203 See Section 4 of UNMIK Regulation 2000/1.
202. m [T]he Special Representative of the Secretary-General shall accept such decision unless he advises the Interim Administrative Council otherwise in writing within seven days explaining the reasons for his differing decision**.
203. 205 See Section 7 of UNMIK Regulation 2000/1.
204. 206 See Section 1 b) of UNMIK Regulation 2000/1.
205. 207 See Section 48.1 of UNMIK Regulation 2000/45. On the appointment of regional and municipal administrators, see also UNMIK Regulation 1999/14 of 21 October 1999.
206. 208 See Section 47.2 of UNMIK Regulation 2000/45.
207. 209 For a survey of the problems arising in the context of the reconstruction of the judicial system in Kosovo, see Stromeyer, see note 3, 51 et seq.
208. 210 See the report of the OSCE Mission in Kosovo "Review of the Criminal Justice System", 11, available under http://www.oesce.org/kosovo - See also UNMIK Regulation No. 1999/5 on the establishment of an ad hoc Court of Final Appeal and an ad hoc Office of the Public Prosecutor.
209. 211 See Section 1 of UNMIK Regulation 1999/7, as amended by UNMIK Regulation 2000/57 of 6 October 2000.
210. Section 4.1 of UNMIK Regulation 2000/6 reads: "The Special Representative of the Secretary-General may remove from office an international judge or international prosecutor on any of the following grounds: a. physical or mental incapacity which is likely to be permanent or prolonged; b. serious misconduct; c. failure in the due execution of office; or d. having been placed, by personal conduct or otherwise, in a position incompatible with the due execution of office".
211. The Commission is composed of eight local and three international experts. See Section 2 of Regulation 1999/7, as amended by UNMIK Regulation 2000/57 of 6 October 2000.
212. For the responsibilities of the Provisional Institutions of Self-Government, see Chapter 5 of the Constitutional Framework. See on this issue also Stahn, Constitution without a State, see note 3.
213. 215 See Chapter 1.5 of the Constitutional Framework.
214. 216 See Chapter 8 o) of the Constitutional Framework.
215. 217 See Chapter 6 of the Constitutional Framework.
216. 218 See Chapter 8 c) and e) of the Constitutional Framework.
217. 219 See para. 9 of the preamble, which reads: "Affirming that the exercise of the responsibilities of the Provisional Institutions of Self-Government in Kosovo shall not in any way affect or diminish the ultimate authority of the SRSG for the implementation of UNSCR 1244 (1999)."
218. 220 Moreover, the Special Representative may, on his own initiative, amend the legal framework document. See Chapter 14.3 of the Constitutional Framework.
219. 221 Cf. Ruffert, see note 3, 625.
220. 222 See Section 4 d) of UNTAET Regulation 2000/23.
221. 223 See Section 4 b) of UNTAET Regulation 2000/23.
222. 224 See Section 1.1 of UNTAET Regulation 2000/24.
223. 225 The National Council consisted of 36 members representing the 13 districts of East Timor, different political parties, civic organizations and religious groups.
224. 226 See Section 2.1 a) of UNTAET Regulation 2000/24.
225. 227 See IDA-UNTAET: Trust Fund for the East Timor Grant Agreement of 21 February 2000, article 6.01 c), Schedule 4.
226. 228 Section 1.3 of UNTAET Regulation 2000/13 states that the Village Councils and Sub-District Councils "shall not exercise the legislative, executive and judicial power of government". Furthermore, Section 1.4 of the Regulation provides that the councils "shall not duplicate or replace the role of the traditional and local leaders of such villages and sub-districts."
227. 229 See Sections 7.1, 7.2,11.1 and 11.2 of UNTAET Regulation 2000/13.
228. 230 See Sections 5.4, 9.3, 11.3, 11.6, 12.4, 13 and 14 of UNTAET Regulation 2000/13.
229. 231 See Section 1.1 of UNTAET Regulation 2000/3.
230. 232 See Section 1.2 of UNTAET Regulation 2000/3.
231. 233 The Commission comprised 7 members appointed by the Transitional Administrator. At least two of them had been international experts.
232. 234 See Section 2.1 and 4 of UNTAET Regulation 2000/3.
233. 235 See Sections 4 and 7 of UNTAET Regulation 2000/11.
234. 236 See UNTAET Regulation 2000/16 of 6 June 2000.
235. 237 See Sections 1.3 and 2 of UNTAET Regulation 2000/15.
236. 238 See Section 29 1 a) of UNTAET Regulation 2000/11 referring to article 13.3 of UNTAET Regulation 1999/3.
237. 239 See Section 2 of UNTAET Regulation 2001/2.
238. Planning for such a post UNTAET United Nations presence in East Timor has been undertaken by a working group. The Secretary-General notes in his progress report on the United Nations Transitional Administration in East Timor of 24 July 2001 that there would be "a substantial reduction in the overall presence" once East Timor has reached independence. See Report of the Secretary-General of 24 July 2001, Doc. S/2001/719, para. 53 et seq.
239. See also the analysis of the Ombudsperson Institution in Special Report No. 2, see note 199, paras 9 et seq.
240. See also the critical remarks by the Ombudsperson Institution noting that international human rights obligations "do not only attach to public offirials in their official capacities, but to the institutions on behalf of whom they exercise their public functions". However, neither UNMIK Regulation 2000/59 nor any other law codifies this principle of state responsibility. See para. 11 of Special Report No. 2.
241. Cf. OSCE, Justice System, see note 210, page 15.
242. See Sections 3 and 4 of UNMIK Regulation 2000/38.
243. The jurisdiction of the Court is limited to the control of acts adopted by the Provisional Institutions of Self-Government. The Special Representative, however, does not form part of this group of institutions defined in Chapter 1.5 of the Constitutional Framework.
244. For a clear affirmation of this obligation under S/RES/1244, see para. 8 of Special Report No. 2 of the Ombudsperson Institution: "Resolution 1244 establishes the premise that the SRSG has an obligation to observe internationally recognised human rights standards in fulfilling his mandate ... 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 which are entrenched in such legal enactments. It also follows that when exercising his executive authority in any capacity, the SRSG should do so within the parameters defined by the international human rights canon and with regard to any law in force in Kosovo, without distinction**.
245. 247 See Section 4 of UNMIK Regulation 1999/1.
246. 248 See also Section 6.1 of Regulation 2000/47, which reads "The immunity from legal process of KFOR and UNMIK personnel and KFOR contractors is in the interests of KFOR and UNMIK and not for the benefit of the individuals themselves.**
247. For a recent analysis of the immunity of international organizations, see European Court of Human Rights, Waite and Kennedy v. Germany, Reports of Judgments and Decisions, 1999-1, para. 63.
248. See OSCE, Justice System, see note 210, page 19.
249. See Section 6 of UNMIK Regulation 1999/1, as amended by Regulation 2000/54.
250. See also Chopra see note 5, 54 "the peace-maintenance authority must be accountable itself, and not in some way above the law", and at 55 "Consequently, civil officials and military contingents participating in peace-maintenance operations are subject to an interim rule of law, no less than is the local population".
251. See on this principle, T. M. Franck, "The Emerging Right to Democratic Governance", AJIL 46 (1992), 86 et seq. For the proclamation of the right to democracy as a human right, see the United Nations Commission on Human Rights, Res. 1999/57 of 27 April 1999.
252. 254 See also Ombudsperson Institution, Special Report No. 1, see note 199, paras 23-24.
253. 255 For the number of complaints lodged with the Ombudsperson, see Annual Report, see note 199,8-9.
254. 256 See Ombudsperson Institution, Special Report No. 1, see note 199, paras 52 et seq.
255. 257 See Ombudsperson Institution, Special Report No. 1 ibid., paras 29 et seq .
256. 258 See Ombudsperson Institution, Special Report No. 1, ibid., paras 45 et seq.
257. 259 See Ombudsperson Institution, Special Report No. 1 ibid., paras 18 et seq. and 82.
258. 260 The Agreement was negotiated by Australia as the lead nation of INTERFET. New Zealand, however, took the view that the SOFA was a bilateral issue between Australia and Indonesia, because it not recognized that Indonesia had sovereign rights over East Timor.
259. 261 See Kelly /McCormack/ Muggleton /Oswald, see note 35,137.
260. 262 See Kelly/ McCormack/ Muggleton/ Oswald, ibid., 118.
261. 263 See Sections 6.4 and 6.5 of UNTAET Regulation 2000/17 of 8 June 2000 and Sections 8.4 and 8.5 of UNTAET Regulation 2000/19 of 30 June 2000.
262. 264 See Section 42 of UNTAET Regulation 2000/10 of 6 March 2000.
263. 265 Para. 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**. See Doc. S/1999/1024, page 7.
264. 266 Para. 3 of S/RES/1272 provides that *UNTAET will have the objectives and a structure along the lines set out in part IV of the report of the Secretary-General*.
265. 267 See on this concept with respect on the territorial application of the International Covenant on Civil and Political Rights, General Comment 26 of the Human Rights Committee, Doc. HRI/GEN/l/Rev.5 of 26 April 2001. Cf. generally in this respect the article of T. Buergenthal in this Volume.
266. 268 See UNMIK, Security and the Rule of Law in Kosovo, document issued by the Special Representative of the Secretary-General on 12 January 2000.
267. See UNMIK Security and the Rule of Law, see above, page 5.
268. According to Section 1.2 of the Regulation 1999/2 such a threat to public peace and order may be posed by any act that jeopardizes the rule of law, the human rights of individuals, public and private property and the unimpeded functioning of public institutions.
269. See also Ombudsperson Institution, Special Report No. 3 on the Conformity of Deprivations of Liberty under "Executive Orders" with Recognised International Standards of 29 June 2001, para. 10.
270. See article 5 para. 1 lit.(c) "No one shall be deprived of his liberty save in the following cases ... c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so".
271. 273 See most recently ECHR, Jecius v. Lithuania, Appl. No. 34578/97, 31 July 2000. See on the case law also W. Peukert, "Article 5", in: J.A. Frowein/ W. Peukert, Europaische Menschenrechtskonvention, 1996,68 et seq., (111).
272. 274 Cf. OSCE, Report No. 6, Extension of Custody Time Limits and the Rights of Detainees: The Unlawfulness of Regulation 1999/26, 29 April 2000, available under http://www.osce.org/kosovo - See also Ombudsperson Institution, Special Report No. 3, paras 25 et seq.
273. 275 See ECHR, Bezicheri, Series A, No. 164, para. 24 et seq., 25 October 1989. The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment also provide for a right to a review of continued detention by a court or other authority at reasonable intervals. See Principles 11 (3) and 39.
274. 276 Cf. Report, see note 271.
275. 277 See para. 29 of the Report, see note 271.
276. 278 See UNMIK Press Briefing of 2 July 2001, Statement on the Ombudsperson's report.
277. 279 See article 15 ECHR and article 4 ICCPR. The right to challenge the lawfulness of a detention before a court is a derogable right.
278. 280 See para. 6 of the recent report of the Panel on United Nations Peace Operations, which stressed *"the essential importance of the United Nations system adhering to and promoting international rights instruments and standards and international humanitarian law in all aspects of its peace and security activities."
279. 281 See article 15 para. 3 ECHR and article 4 para. 3 ICCPR.
280. 282 See also J. Cerone, "Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo", EJIL 12 (2001), 469 et seq. who argues that this duty would derive from "the general principle of interpretation that obligations should be construed, where possible, so as to avoid conflicting obligations'*. Cf. Cerone, 478 at note 50.
281. 283 See on the absence of a derogation of human rights law in Kosovo also Cerone, see note 281, under VI.
282. 284 See Sec. 1.3 of Regulation 2000/59.
283. 285 See also Ombudsperson Institution, Special Report No. 1, see note 199, paras 19-20.
284. 286 See also Ombudsperson Institution, Special Report No. 3, see note 271, paras 10,24 and 29.
285. 287 See Section 12 a. 1 of UNTAET Regulation 2000/11, as amended by UNTAET Regulation 2000/14.
286. 288 See also Amnesty International, East Timor: Building a New Country Based on Human Rights 2000,4.12.
287. 289 See also Linton, see note 4,145
288. 290 The District Court of Dili was established on 6 March 2000 by UNTAET Regulation 2000/11. The first judges, prosecutors and defenders were established on 7 January 2000. See Notification on the Appointment of
289. Judges and Prosecutors of 7 January 2000, Official Gazette of East Timor, UNTAET/GAZ/2000/1, page 25.
290. See also Linton, see note 4,134.
291. See Kelly/ McCormack/ Muggleton/ Oswald, see note 35,130.
292. See Report of the Secretary-General of 4 October 1999, para. 13. For a full account, see Kelly/ McCormack/ Muggleton/ Oswald, see note 35, 131 et seq.
293. See also Strohmeyer, see note 3, 51 note 22.
294. For a discussion of the Ordinance, see Kelly/ McCormack/ Muggleton/ Oswald, see note 35,133 et seq.
295. aLe droit international humanitaire au Timor oriental: entre theorie et pratique*, Int'l Rev. of the Red Cross 83 (2001), 77 et seq., (80 et seq., 96 et seq.).
296. See generally on application of the IV. Geneva Convention to United Nations operations, Kelly, see note 106,162 et seq.
297. See Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes available under: http://www.cambodian-parliament.org
298. See Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000, Doc. S/2000/915. See also M. P. Scharf, "The Special Court for Sierra Leone", ASIL Insights, October 2000; M. Frulli, "The Special Court for Sierra Leone: Some Preliminary Comments", EJIL 11 (2000), 857 et seq.
299. 300 See also Linton, see note 4,146.
300. 301 See Report of the International Commission of Inquiry on East Timor to the Secretary-General, Doc. A/54/726, S/2000/59 (2000), at 153.
301. 302 See Letter of 31 January 2000 from the Secretary-General to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, accompanying UN Doc. A/54/726, S/2000/59 (2000).
302. 303 See Section 22.1 of UNTAET Regulation 2000/15.
303. 304 See Section 14.4 of UNTAET Regulation 2000/16.
304. 305 See Sections 4 to 7 of UNTAET Regulation 2000/15.
305. 306 See Section 8 to 9 of UNTAET Regulation 2000/15.
306. 307 For a full analysis, see Linton, see note 4,150 et seq.
307. 308 See article 12 para. 2 of the Rome Statute for the International Criminal Court, which does not provide for "universal jurisdiction". See on the jurisdiction of the International Criminal Court also C. Stahn, "Zwischen Weltfrieden und materieller Gerechtigkeit: Die Gerichtsbarkeit des Standigen International Strafgerichtshofs, EuGRZ 25 (1998), 577 et seq., (586 et seq.). See generally on the Rome Statute, A. Zimmermann, "The Creation of a Permanent International Criminal Court*', Max Planck UNYB 2 (1998), 169 et seq., (206 et seq.).
308. 309 See also the critique by Linton, see note 4, 169-170, pointing out that international law has become more progressive in this area than the Indonesian Criminal Code.
309. 310 See Section 2.4 of UNTAET Regulation 2000/15 referring to Section 3.1 of UNTAET Regulation 1999/1, which declares Indonesian criminal law applicable. Indonesian law provides that "if a person commits a criminal offence abroad which can be judged by the law of the Republic of Indonesia, the Jakarta Court of Justice shall be competent to judge the case." See Dili District Court, Special Panel for Serious Crimes, Case of The Prosecutor v. Lenardus Kasa, Judgment of 5 May 2001, Case No. 1 l/CG/2000.
310. 311 See Section 10.2 of UNTAET Regulation 2000/11 and Section 2.3 of UNTAET Regulation 2000/15: "With regard to the serious criminal offences listed under Section 10.1 d) [murder] to e) [sexual offences] of UNTAET Regulation 2000/11 ... the panels established within the District Court of Dili shall have exclusive jurisdiction only insofar as the offence was committed in the period between 1 January, 1999 and 25 October 1999."
311. 312 See Amnesty International, East Timor, Justice Past, Present and Future, Report of 27 July 2001, 9.3.
312. 313 See Memorandum of Understanding between the Republic of Indonesia and UNTAET Regarding Cooperation in Legal, Judicial and Human Rights Related Matters of 6 April 2000. See on the lack of implementation of Section 9, which allows the transfer of persons for purposes of prosecution, Progress Report of the Secretary-General on the United Nations Transitional Administration in East Timor of 24 July 2001, Doc. S/2001/719, para. 30. See also Report of the Secretary-General on the United Nations Transitional Administration in East Timor of 15 January 2001, Doc. S/2001/42, para. 25.
313. 314 See Republic of Indonesia, House of Representatives, Act No. 26/2000 on Human Rights Courts. See also the Amnesty International Documents, Indonesia, Comments on the Draft Law on Human Rights Tribunals, AI Index: ASA 21/25/00, June 2000 and Indonesia, Comments on the Law on
314. Human Rights Courts (Law No. 26/2000), AI Index ASA 21/005/2001, February 2001.
315. See Decree of the President of the Republic on Indonesia No. 53/2001 concerning the Establishment of an ad hoc Human Rights Tribunal at the Central Jakarta District Court of 23 April 2001. See on the Decree also M. Othman, "Peacekeeping Operations in Asia, Justice and UNTAET", International Law Forum 3 (2001), 114 et seq., (120).
316. See ICTY, Statement on the Investigation and Prosecution of Crimes Committed in Kosovo, The Hague, 29 September 1999, available under http://www.icty.org See OSCE, Justice System, see note 210, at 71-72.
317. 318 See OSCE, Justice System, see note 210, 72. See also OSCE, Kosovo, A Review of the Criminal Justice System, 1 September 2000 - 28 February 2001, Section 8.
318. 319 These powers remain unaffected by the adoption of Regulation 2000/64. See Section 3.2 of Regulation 2000/64.
319. 320 Unfortunately, UNMIK Regulation 2000/64 does not contain more specific criteria concerning the rejection or approval of an application filed under Section lof the Regulation. See generally on the problems arising in the context of Regulation 2000/64, OSCE, Review of the Criminal Justice System, see note 318, Section 8, sub. I.
320. 321 See Section 2.1 of Regulation 2000/64.
321. 322 See Section 2.1 lit.(a) and (b) of Regulation 2000/64.
322. 323 For a full analysis, see OSCE, Justice System, see note 210, 70 and OSCE, Review of the Criminal Justice System, see note 318, Section 8, sub. II to IV and Section 9 ("genocide charges*).
323. 324 For a statistical survey, see OSCE, Justice System, see note 210, 74 and OSCE, Review of the Criminal Justice System, see note 318, Section 8, Annex I.
324. 325 See OSCE, Review of the Criminal Justice System, see note 318, Section 8, sub. II to IV and Section 9 ("genocide charges").
325. 326 See Section 1 of UNMIK Regulation 2001/1.
326. 327 See with respect to international organizations, H. Mosler, "Subjects of International Law", in: R. Bernhardt (ed.), EPIL IV (2000), 710 et seq.,(722).
327. See para. 4 of Security Council Resolution 1272.
328. See Report of the Secretary-General on the Situation in East Timor, 4 October 1999, para. 35, Doc. S/1999/1024.
329. See on this issue Chopra, see note 4, 30.
330. See note 67. See on this issue also G. Triggs, "Legal and Commercial Risks of Investment in the Timor Gap", Melbourne Journal of International Law 1 (2000), 99 et seq., (100 et seq.).
331. See Report of the Secretary-General on the United Nations Transitional Administration in East Timor of 24 July 2001, para. 12.
332. See Vienna Convention on Diplomatic Relations, UNTS Vol. 500 No.7310.
333. 334 See Section 3.1 of UNTAET Regulation 2000/31. See also article 3 of the Vienna Convention on Diplomatic Relations.
334. 335 The wording of Section 16 of UNTAET Regulation 2000/31 and article 31 of the Vienna Convention on Diplomatic Relations is almost identical.
335. 336 This provision is even more specific than article 22 of the Vienna Convention on Diplomatic Relations.
336. 337 See the cooperation agreement on cross-border economic issues with Macedonia of 7 March 2000, Doc. S/2000/538 of 6 June 2000, para. 20.
337. 338 See UNMIK Press Release of 7 April 2000 on the agreement with the Swiss government on the return of refugees.
338. 339 See Section 2.2 of UNMIK Regulation 2000/31 on the functions of the liasion offices and Sections 2.3 to 2.8 of the regulation on the immunities of these offices.
339. See Chapter 8, para. 8 (m) of the Constitutional Framework.
340. Ruffert, see note 3, sub. IV. 2 speaks of "functional legal personality". See also Zimmermann/ Stahn, see note 3. See generally on the recognition of international organisations by third states I. Seidl-Hohenveldern/ G.
341. Loibl, Das Recbt der Internationalen Organisationen einschliefllich der Supranationalen Gemeinschaften> 1996, 82 et seq.
342. See also the Statement of the Secretary-General in the Report on the United Nations Transitional Administration in East Timor of 26 July 2000, Doc. S/2000/738, para. 64: "The last six months have also made clearer how daunting the task is that the United Nations has undertaken in East Timor. The Organization had never before attempted to build and manage a State. Nor did it have an opportunity to prepare for this assignment".
343. 344 See generally on the concept of internationalization, R. Wolfrum, Die Internationalisierung staatsfreier Rdume, 1984, 10 et seq.; R. Beck, Die Internationalisiernng von Territories 1962, 60 et seq.
344. 345 See Ydit, see note 8,11 et seq.
345. 346 For a detailed analysis, cf. Beck, see note 344, 17 et seq., 30 et seq., 41 et seq. and Ydit, see note 8,44 et seq., 185 et seq., 231 et seq.
346. 347 For a full account, see Wolfrum, see note 344, 30 et seq.
347. 348 This approach is most clearly reflected in the common heritage principle governing the Sea-Bed and its resources. See article 136 of the United Nations Convention on the Law of the Sea of 10 December 1982. For a discussion, cf. Wolfrum, see note 344, 389 et seq.
348. 349 See on this aspect under II.
349. 350 See on this aspect under V. 1.
350. 351 See under V. 2 and VI. 2.
351. 352 See under VI. 1, VII. and VIII.
352. 353 See under IX.
353. 354 See under V.
354. 355 For a conceptualization, see Bothe/ Marauhn, see note 3, sub. II.
355. 356 See in this sense Chopra, see note 4, 29; S. Chesterman, East Timor under Transition: From Conflict Prevention to State-Building, 2001, 21, available under http://www.ipacademy.org