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'The Rule of Law Deficit in International Territorial Administration”
With the end of the Cold War has come an upsurge in the use of ‘international territorial administration’ (ITA), or the performance of domestic governmental tasks by international actors from within governed territories. Perhaps the most prominent example of this phenomenon is the creation of a subsidiary organ by the UN Security Council under Chapter VII of the UN Charter to exercise overall responsibility for governance of Kosovo following the NATO bombing of Serbia in 1999. This subsidiary organ, the UN Interim Administration Mission in Kosovo (UNMIK), still operates in the territory, though it is currently in the process of phasing out and making way for an EU mission that is expected to have certain governmental powers of its own. In another part of southeastern Europe, an international High Representative, operating on the basis of an invitation from the parties to the conflict in Bosnia and Herzegovina and a Chapter VII Security Council Resolution (and who has been put in place by States supporting Bosnia’s post-conflict reconstruction), has exercised extensive governmental powers in Bosnia since late 1997. Further, a subsidiary organ of the UN Security Council created pursuant to a Chapter VII resolution (the UN Transitional Authority in East Timor or UNTAET) exercised governmental authority in East Timor from 1999 to 2002, as a means of transitioning the territory from Indonesian rule to independence. These three cases of ITA differ in many respects—including in terms of their relationships with local actors. The latter have, for instance, exercised different levels of governmental authority in the three territories.1 Nevertheless, in each case, an international actor operating in a territory has taken on responsibility for issuing legal instruments with binding domestic effect. Post-Cold War ITAs, which have antecedents in the role played by the League of Nations during the period between the two World Wars, raise a plethora of questions for political scientists and international legal scholars. Among these, of course, is the question of whether it is even appropriate for the UN and other international actors to perform functions that normally fall within the purview of domestic governmental 1 E.g., In Bosnia, the High Representative exercises governmental powers in response to obstruction by authorities. In this connection, it has been argued that ITA is a throwback to an era where powerful actors with a ‘civilizing’ mission sought to exercise control over territories outside their borders, based on an attempt to order relations with populations regarded as unfit to rule themselves. The extent to which ITA raises concerns of this sort relates in part to the purpose for which individual ITAs are used. In this connection, it is useful to highlight the different motivations for establishment of the three ITAs mentioned above. UNMIK in Kosovo was created in the shadow of human rights abuses perpetrated by Serbia in Kosovo, in order to foster self-government in the latter territory pending a determination of its future status. Conversely, the High Representative was put in place in sovereign Bosnia in order to facilitate the peace-building process in the country. Finally, as suggested above, UNTAET was deployed in East Timor in order to transition the latter territory to independence. Its creation followed a referendum in the territory in which the overwhelming majority of the population voted for independence. Notwithstanding these differences, however, the establishment of all three ITAs has followed on the heels of violent conflict, which has in turn posed problems that the ITAs have been forced to address. The legitimacy of ITA as a policy instrument is also clearly linked to the effectiveness of individual ITAs in practice. Thus, various scholarly works and policy papers concerned with ITA seek to assess whether such actors have met their stated objectives—e.g., the establishment of functioning domestic institutions and the return of refugees and displaced persons. To a significant degree, of course, these are subjective questions. Yet, even for those who allow that ITA can be useful in certain situations— whether as a response to domestic governmental failure, as a means to facilitate a transition to self-government/independence, or as a means of helping resolve a territorial dispute—a crucial problem remains from the perspective of ITA legitimacy. Specifically, many scholars and policy-makers have argued that international actors involved in performing ITA functions have failed to carry out their responsibilities in a manner consistent with the rule of law. ‘Rule of law’, which is often presented as a core aspect of good governance, has been defined by the UN Secretary-General as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with human rights norms and standards”.2 UNMIK, UNTAET and the High Representative in Bosnia have all insisted on the importance of creating a ‘rule of law’ culture in their host territories. For example, much of the work of these bodies has been directed at creating a legal framework regulating the power of domestic governmental authorities, in order to help ensure that individuals in host territories know in broad terms what they can expect from such authorities and to help provide a benchmark against which the conduct of the authorities can be evaluated. At the same time, UNMIK, UNTAET and the High Representative have enjoyed an extreme amount of discretion in connection with their own exercise of governmental power. The primary sources of standards governing these actors are their constituent instruments—Security Council Resolutions 1244 and 1272, respectively, in the case of UNMIK and UNTAET. For its part, the High Representative in Bosnia was established through a combination of an annex to the Dayton Peace Agreement and Security Council Resolution 1031. These instruments only set out in vague terms the rights and obligations of the ITAs. Indeed, in the case of the High Representative, the above-mentioned instruments do not explicitly state that the High Representative may exercise governmental authority. The broad discretion that they give to the High Representative in interpreting his peace-building mandate has instead been used by the High Representative and his office to justify the former’s issuance of legislation and executive decisions. The three ITAs have each issued legal instruments touching upon their powers, and some of these have attempted to outline the relationship between international and domestic officials in the host territory. For instance, the succession of individuals who have headed UNMIK have issued various regulations intended to clarify the substantive division of powers between UNMIK and local institutions—in connection with UNMIK’s role in building self-government in the territory. However, none of the ITAs has sought to provide a clear legal framework setting out ITA rights and obligations. As 2 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Situations: Report of the Secretary-General (23 August 2004) S/2004/616 [hereinafter S/2004/616] at para. 6. a consequence, these bodies have largely operated reactively, with the nature and scope of their powers crystallizing in an ad hoc fashion. Indeed, significant ITA initiatives, such as UNMIK’s privatization of socially-owned property in Kosovo in the face of opposition from Belgrade, have been undertaken as the result of an evolving conception of UNMIK powers. To be sure, government authorities in far more orthodox settings enjoy discretion in fulfilling their mandates. The evolution of ITA powers and functions is also not entirely surprising given the fact that these entities were put in place fairly quickly and in difficult circumstances. Once in place, many ITA officials have found the constructive ambiguity in ITA mandates to be useful for responding to challenges faced in host territories, from obstructionist politicians to violations of minority rights. Nevertheless, the extent of discretion enjoyed by these ITAs—the extent to which they have effectively invented their role as they have gone along—presents a concern from a rule of law standpoint, when one considers that clear standards regulating governmental power are essential for legal stability and predictability. A specific concern is the lack of clarity with regard to the human rights obligations of these entities vis-à-vis individuals within their jurisdiction. Lawyers in UNMIK, UNTAET and the Office of the High Representative have all vetted draft ITA instruments for compliance with international human rights standards. However, even within the ITAs themselves, there has historically been a lack of clarity as to whether the ITAs are legally obliged to comply with such standards. With respect to the High Representative, such an obligation is nowhere stated. With respect to UNMIK and UNTAET, the Security Council resolutions establishing these actors charge them with protecting and promoting human rights,3 but it is unclear whether this means that all UNMIK and UNTAET instruments are to be in accordance with international human rights standards and, if so, which of these standards are to apply. A lawyer with UNMIK, interviewed in 2004, indicated that legal instruments issued by the head of UNMIK must comply with international human rights standards by virtue of a regulation issued by the UNMIK chief himself providing that that “(i)n exercising their functions, all persons 3 For UNMIK, see S.C. Res. 1244, U.N. Doc. S/RES/1244 (10 June 1999) at para. 11(j). For UNTAET, see S.C. Res. 1272, U.N. Doc. S/RES/1272 (25 October 1999) at para. 3, in conjunction with Report of the Secretary-General (4 October 1999) S/1999/1024 at para. 29(h). undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards…”, but the regulation is ambiguous on its face, and there has long been confusion in Kosovo as to its relevance for UNMIK. Here it should be said that human rights concerns exist with respect to a wide range of international actors—not only ITAs. Certainly, it is not uncommon for the instruments governing international organizations (IOs) to be silent or vague on the organizations’ human rights obligations. However, in recognition of the burgeoning role played by these actors, the literature on IOs increasingly emphasizes that the latter should respect and guarantee the basic human rights of those whom they impact in the course of their functions. International actors themselves have echoed such sentiments. For instance, the UN Secretary-General’s 2005 report proposing an agenda for the Millennium Summit, In Larger Freedom—Towards Development, Security and Human Rights for All, asserts that: (s)ince the rule of law is an essential element of lasting peace, United Nations peacekeepers and peacebuilders have a solemn responsibility to respect the law themselves, and especially to respect the rights of people whom it is their mission to help…the United Nations system should reaffirm its commitment to respect, adhere to and implement international law, fundamental human rights and While ITAs often operate in difficult post-conflict settings, the challenges typically associated with these settings are not seen as providing justification for operating outside a human rights framework. In this vein, the UN Secretary-General’s In Larger Freedom report further argues that: (i)t would be a mistake to treat human rights as though there were a trade-off to be made between human rights and such goals as security or development. We only weaken our hand in fighting the horrors of extreme poverty or terrorism if, in our efforts to do so, we deny the very human rights that these scourges take away from citizens. Strategies based on the protection of human rights are vital for both our moral standing and the practical effectiveness 4 In Larger Freedom—Towards Development, Security and Human Rights for All: Report of the Secretary- General (21 March 2005) A/59/2005 at para. 113. Indeed, international and regional human rights instruments take the possibility of difficult circumstances into account, permitting derogation in cases of public emergency (though confining it to exceptional and well-defined circumstances and requiring that oversight bodies be apprised in order to protect against abuse). Concerns about the human rights obligations of ITAs are not merely academic. The former Ombudsperson in Kosovo has gone so far as to refer to Kosovo as a ‘black hole’ of human rights in Europe,6 and various commentators have pointed to the fundamental inconsistency of an entire category of High Representative decisions (i.e., High Representative removals of political and party officials) with international human rights standards.7 Given space constraints, an examination of the merits of such claims is not possible in the present paper. However, given the paper’s focus on rule of law in the ITA context, it is important to stress that no judicial mechanisms exist for the resolution of such claims. Neither UNMIK, UNTAET nor the Office of the High Representative has established judicial bodies with competence to hear human rights claims related to their exercise of governmental powers, although one of the main aims of rule of law projects carried out by international actors, including those undertaken as part of post-conflict peace-building, has been to build and strengthen independent judiciaries with competence, inter alia, to review the compliance of governmental authorities with applicable standards and provide a remedy in cases where they have caused injury.8 This has dovetailed with the human rights work frequently undertaken in connection with such projects, which has tended to include the promotion of fair trial rights. 6 M. Nowicki “When Being the Good Guy is Not Enough” (4 February 2005) Transitions Online. 7 See, e.g., Report of Special Rapporteur Evgeni Kirilov on Strengthening of Democratic Institutions in Bosnia and Herzegovina presented to the Parliamentary Assembly of the Council of Europe (4 June 2004) 8 See, e.g., Governance for the Millennium Development Goals: Core Issues and Good Practices, 7th Global Forum on Reinventing Government (June 2007) ST/ESA/PAD/SER.E/99 at 29-30; D. Tolbert with A. Solomon, “United Nations Reform and Supporting the Rule of Law in Post-Conflict Societies” (Spring 2006) 19 Harvard Human Rights Journal 29 and S/2004/616, supra note 2 at paras. 34-35 (“At the institutional core of systems based on the rule of law is a strong judiciary, which is independent and adequately empowered, financed, equipped and trained to uphold human rights in the administration of No existing international judicial body has a mandate to hear claims brought directly against these actors. In addition, each of the actors enjoys (or enjoyed, in the case of the now-defunct UNTAET) broad immunity in their host territories, thereby limiting possibilities for domestic judicial resolution of human rights claims. In Bosnia, certain judicial bodies with a mixed international/local composition concerned about this lack of accountability have responded by attributing High Representative legislative instruments to local authorities and reviewing their legality on that basis.9 and, in one case, the Bosnian Constitutional Court held Bosnia responsible for failing to ensure that individuals dismissed from political office by the High Representative were provided with an effective remedy. In addition, one can find occasional examples of domestic courts reviewing acts of the heads of UNMIK and UNTAET, frustrating officials in these institutions in the process. Such efforts are a fascinating example of the complexities that arise from the interaction between domestic and international actors in domestic settings, but it is inappropriate to hold them up as a model for holding ITAs judicially accountable. Relying on domestic judicial bodies to take arguably ultra vires interpretations of their mandates as a basis for reviewing ITA conduct, often in the face of objections from the ITAs themselves, does not contribute to legal stability and predictability for individuals subject to ITA jurisdiction. In addition, holding host States responsibility for failing to take positive measures in connection with the acts of ITAs can be a futile exercise if the States are not in practice in a position to remedy ITA-caused problems. It should be said that, during its tenure, UNMIK created an international Ombudsperson with competence to investigate human rights claims directed against both local institutions and UNMIK itself. In addition, following the transition of the Ombudsperson’s office to a wholly domestic institution, UNMIK established a Human Rights Advisory Panel to hear human rights complaints regarding the acts/omissions of UNMIK. Yet, neither of these entities was given power to issue binding decisions and their effectiveness in constraining UNMIK conduct has frequently been questioned. 9 It should be noted that the Human Rights Chamber found certain High Representative-issued legislative amendments to be in violation of the right to the peaceful enjoyment of possessions. The failure to create judicial institutions as a check on ITA power is part of a wider problem with holding international actors judicially accountable. Most IOs, for instance, do not have judicial bodies with competence to issue binding decisions concerning the compatibility of IO decisions with applicable legal standards, and there are obstacles to bringing complaints against such actors before external international judicial bodies, as the jurisdiction of the latter is commonly limited to complaints brought against States. Similar problems exist at the domestic level. Although IOs may, in some cases, be subject to domestically applicable legal standards, there are often barriers to the enforcement of such standards, including a lack of jurisdiction on the part of domestic courts and IO immunity. More and more, it is recognized that these obstacles to the accountability of international actors are damaging to their legitimacy. And yet, to return to the focus of the present study, it is perhaps not surprising that ITAs have decided to refrain from developing judicial mechanisms of accountability given the natural disinclination of power-holders to allow their decisions to be second-guessed, as well as the temporal and financial challenges associated with the creation of such mechanisms. In this context, it is relevant that the above-mentioned ITAs have all operated on a temporary basis. There has been an unwillingness to pour time and money into such structures when the ITAs have been primarily concerned with doing their jobs and getting out. The comment of a former lawyer in the Office of the High Representative is also illuminating. When asked why no judicial accountability structures were created in connection with the High Representative, he replied that: “(t)he High Representative is in Bosnia to address domestic accountability and human rights problems. It’s missing the point to focus on the accountability of the High Representative.” However, this focus on temporal limitations, as well as on the role that ITAs have sometimes played in responding to problems with local governmental institutions, is overplayed. Both UNMIK and the Office of the High Representative, for instance, have exercised governmental power in their respective territories for approximately 10 years. Moreover, while ITAs have been used to respond to abuses by local authorities, one is hard pressed to understand why this would provide ITAs with a free pass to operate outside of the rule of law in their own governmental role. Having identified the rule of law gap in connection with ITA, what is to be done? If this policy instrument is to be used in the future, it is essential that the basic rights and obligations of ITAs be made as clear as possible in the instruments governing their work. The aim should not be to wholly eliminate ITA discretion, but rather to ensure that individuals subject to ITA jurisdiction have a reasonable idea what to expect from their international governors. Similarly, effective regulation of ITAs requires that these actors be obliged to respect and ensure the human rights of individuals falling within their jurisdiction. In clear situations of public emergency, derogation from some rights might be possible—but this possibility also argues for the creation of a body with a mandate to exercise oversight in connection with such derogations—particularly as the major human rights regimes do not include international actors at present. ITAs might be subjected to human rights obligations in a variety of ways—notably through the incorporation of such standards into ITA constituent instruments. From a more long-term perspective, allowing international actors to become party to human rights agreements would potentially provide an important means of regulating ITA conduct. Formally obliging ITAs to comply with human rights and other legal standards is not of much use in the absence of mechanisms for ensuring that ITAs can be held accountable for their violation. The use of judicial bodies to review ITA conduct would provide a key means of regulating compliance with ITA constituent instruments and other applicable standards, as well as ensuring protection of individuals whose legal rights have been violated. There are, as outlined, various logistical problems in this respect, including the lack of an existing international judicial forum which could be used to hear such claims and the tendency of international actors to enjoy wide immunity in host territories. ITAs might, in principle, decide to curtail the broad immunity that they commonly enjoy in host territories and allow domestic judicial bodies to exercise jurisdiction over them. Alternatively, they might subject themselves to review by sui generis judicial bodies with an international or mixed international/local composition. The latter is likely to be a more desirable solution in areas with weak or politicized local judiciaries. In the end, whatever accountability mechanisms are used need to be as independent as possible from ITAs and accessing them should not be burdensome for individuals affected by ITA conduct. The extent to which ITA will be used in the future remains unclear, but a review of the literature on conflict and post-conflict reconstruction suggests that, for many, ITA represents a useful tool for bolstering State stability and preventing internal crises from creating problems in the wider international system. Thus, the alleged rule of law paradox surrounding ITA—namely, the latter’s simultaneous support for the rule of law and departure from rule of law principles in its own work—must be addressed if ITA is to remain a legitimate policy instrument for addressing such challenges.

Source: http://www.ijo.org.in/Territorial.pdf