Download 8 German Law Journal No. 1

GERMAN LAW JOURNAL
Review of Developments in German,
European and International Jurisprudence
Editors–in-Chief: Russell Miller; Peer Zumbansen
Editors: Gregor Bachmann; Gralf-Peter Calliess; Matthias Casper;
Morag Goodwin; Felix Hanschmann; Florian Hoffmann;
Karen Kaiser; Alexandra Kemmerer; Malcolm Maclaren; Stefan Magen; Ralf Michaels;
Betsy Baker; Giesela Rühl; Christoph Safferling; Marlene Schmidt;
Frank Schorkopf; Craig Smith; Cornelia Vismann
www.germanlawjournal.com
© Copyright 2000 - 2007 by German Law Journal GbR. All rights reserved.
Pages 1 - 142
Vol. 8 No. 1
1 January 2007
TABLE OF CONTENTS
ARTICLES: SPECIAL ISSUE
WHAT FUTURE FOR KOSOVO
SPECIAL EDITOR: MORAG GOODWIN
Morag Goodwin
Special Issue Introduction – What Future for Kosovo? –
From Province to Protectorate to State? Speculation
on the Impact of Kosovo’s Genesis upon the
Doctrines of International Law
TABLE OF CONTENTS PAGE I
1 - 20
TABLE OF CONTENTS
Rebecca Everly
Reviewing Governmental Acts of the United
Nations in Kosovo
Bernhard Knoll
Legitimacy and UN-Administration of Territory
Srdjan Cvijic
Self-determination as a Challenge to the
Legitimacy of Humanitarian Interventions: The
Case of Kosovo
Claude Cahn
Birth of a Nation: Kosovo and the Persecution of
Pariah Minorities
Hartmut Pürner
Book Review – Michaela Salamun’s Democratic
Governance in International Territorial Administration
(2005) and Daniel Sven Smyrek’s Internationally
Administered Territories – International Protectorates?
(2006)
21 - 38
39 – 56
57 - 80
81 - 94
95 - 110
DEVELOPMENTS
Arthur Gunlicks
German Federalism Reform: Part One
111 - 132
Constantin M. Lachner & Rafael von Heppe
The Introduction of REITs in Germany
133 - 142
TABLE OF CONTENTS PAGE II
ARTICLES
SPECIAL ISSUE – WHAT FUTURE FOR KOSOVO ?
Special Issue Introduction – What Future for Kosovo?
From Province to Protectorate to State? Speculation on the
Impact of Kosovo’s Genesis upon the Doctrines of
International Law
By Morag Goodwin*
A. Introduction
The province of Kosovo – 2 million people in 11,000 square kilometres of territory
nestled between Serbia to the North and Albania and Macedonia to the South – was
thrust into the international limelight when Serbian actions to repress Kosovo
Albanian calls for independence made it a subject of international concern at the
end of the 1990s. While Kosovo is not unique in becoming well-known for suffering
the repressive actions of a parent state, and while it has not even enjoyed the
distinction of being the only territorial administration of its time, it appears to be
unique in its (potential) impact on the doctrines of international law. On a number
of levels, the international community’s response to the situation created by
Milosevic’s actions and NATO’s intervention threaten to call fundamental pillars of
the post-World War II order into question. It is too early to speculate conclusively
on whether the NATO action in Kosovo sans Security Council approval in some
measure paved the way for an emerging doctrine of “humanitarian intervention”
that, in turn, opened the door to the illegal invasion of Iraq. It seems not
implausible to suggest that the apparent success of unauthorised military
intervention in Kosovo in stopping mass human rights violations emboldened
politicians on both sides of the Atlantic in opting for a moral path over the formally
legal one. In any event, grounded as they are in that history, the final status talks on
the future of Kosovo represent a serious challenge to the current framing of the
Lecturer
in
International
and
European
Law
at
the
University
of
Maastricht
([email protected]). The author would like to thank Bernhard Knoll, Jason Beckett
and Euan MacDonald for their critical feedback on a draft of this paper. They do not however
necessarily share the opinions expressed here, which are mine alone, as are any remaining errors.
*
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GERMAN LAW JOURNAL
[Vol. 08 No. 01
international order. It is these issues that this symposium wished to raise and
examine.
Thus, the starting point for this small symposium was that Kosovo has the potential
to become one of the defining moments of the modern international law era;
arguably it has already done so. Its impact can be viewed as occurring on three
levels. The first level was the most immediately apparent to international lawyers
in 1999, that of the use of force without prior Security Council authorisation.1 What
role do the current talks on the future of Kosovo play in defining any emerging
doctrine of humanitarian intervention? Srdjan Cviji!’s contribution examines in
depth the alleged emergence of humanitarian intervention as a norm of
international law and reflects on the impact that an imposed solution to the ongoing impasse over Kosovo’s final status will have on the legitimacy of NATO’s use
of force in 1999.
The second level is that of the United Nations territorial administration that
followed. While not unique in this regard, post-1999 Kosovo raises fundamental
issues of legitimacy and accountability, a better understanding of which is vitally
important if the international community is to make a habit of such interventions.
The contributions by Bernhard Knoll, Rebecca Everly and Claude Cahn all
contribute to an expansion of our understanding of this. Knoll examines the
legitimacy of international territorial administration. Everly and Cahn focus on the
accountability of international administrators, Everly from the perspective of
accountability of the international administration to the local courts and Cahn from
the situation of impunity for the continuing gross violations of the human rights of
minority communities within Kosovo, with a particular focus on the situation of
Kosovar Roma.
The third level at which Kosovo may impact upon international law is in calling
into question the prevailing balance between the principles of territorial integrity
and self-determination; in expanding our understanding of Security Council
powers to include the ability to impose independence, possibly through the
doctrine of implied powers; and in undermining the sovereign equality of all states.
The outcome of the final status talks currently underway may thus have a farreaching impact on primary doctrines of the international legal system. While the
contributors to the symposium have rightly confined themselves to points of
See Bruno Simma, NATO, the UN and Use of Force: Legal Aspects, 10 EUROPEAN JOURNAL OF
INTERNATIONAL LAW (EJIL) 1 (1999); Compare Antonio Cassese, Ex iniuria ius oritur: Are We Moving
towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? 10
EJIL 23 (1999); See also Martti Koskenniemi, The Lady Doth Protest too Much: Kosovo and the Turn to Ethics
in International Law (2002) 65 MODERN LAW REVIEW 159 (2002).
1
2007]
Introduction – From Province to Protectorate to State?
3
existing law, this editorial shall speculate on the possible impact upon a number of
the fundamental principles of international law of an imposed solution to the
Kosovo dilemma – assuming that, as looks likely, independence will be the
outcome of the deadlocked negotiations underway. In order to do this, it is
necessary to lay out the more plausible options for independence absent Serbian
agreement that are circulating in influential international circles.
B. Sovereignty Lost?
One possible argument for fixing a solution for Kosovo without Serbian consent is
that of forfeited sovereignty. There are two routes one could take to make this case.
The first is that of the right of self-determination of the people of Kosovo; and the
second relates to the principle of effective control.
I. The Right to Internal Self-determination
The right of a people living in a territory to freely determine the legal and political
status of that territory is firmly established in the international legal lexicon. It has
been repeatedly reaffirmed since its original appearance in the UN Charter, by,
inter alia, the 1960 Declaration on the Granting of Independence to Colonial
Countries and Peoples, common Article 1 of the twin Covenants, the 1970
Declaration on Friendly Relations and various judgments of the International Court
of Justice, and should be regarded, according to the ICJ, as an essential principle of
international law, possessed of an erga omnes nature.2 This right allows a people to
achieve self-determination in one of three ways: free association with a State,
integration with a State or emergence as a sovereign independent State.3
However, outside of the colonial context, where the principle of self-determination
clashes with that of territorial integrity, it is well-established practice that existing
States are entitled to respect for their territorial integrity and political unity. Selfdetermination does not allow for an automatic right of secession and selfdetermination claims are to be realised instead through autonomy regimes and
meaningful internal self-determination.4
Where, however, a State fails to provide meaningful autonomy, where, in the
words of the 1970 Declaration, States fail “to conduct … themselves in compliance
2
East Timor (Port. v. Austl.), 1995 ICJ para. 29.
3
Declaration on Friendly Relations, GA Res. 2625 (1970).
4
Id.; see also Reference re Secession of Quebec, 115 ILR 536 (Can. 1998).
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GERMAN LAW JOURNAL
[Vol. 08 No. 01
with the principle of equal rights and self-determination of peoples … [being] thus
possessed of a government representing the whole people belonging to the territory
without distinction as to race, creed or colour”,5 it has been argued that States may
forfeit their right to respect for their territorial integrity.6 Thus, so the argument
runs, where a State is oppressive or refuses to allow for any form of internal selfdetermination, the principle of territorial integrity might be pushed aside and the
right of a people to self-determination may justify unilateral secession. The safeguard clause formed one of the most interesting elements of the Quebec Secesion
case.7 However, while the Canadian Supreme Court accepted that in situations of
“alien subjugation, domination or exploitation outside a colonial context [there is a]
… clear case” for external self-determination, it refused to reach any conclusion
concerning whether prevention of a meaningful exercise of internal selfdetermination justified secession as a last resort.8 This hesitation reflects the much
contested nature of such a right among international lawyers.9
In the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), amidst the
multiple claims to self-determination that resulted, the Arbitration Commission
established by the European Communities (EC) in 1991 to oversee the process (the
Badinter Commission) declared uti possidetis a general principle of international law
and rigorously applied it to the situation at hand, although not, it should be added,
without controversy.10 In Opinion No. 2 in relation to the situation in BosniaHerzegovina, the Badinter Commission, viewing the situation as one of the
dissolution of a federal state, stated that “the right to self-determination must not
involve changes to existing frontiers at the time of independence except where the
States concerned agree otherwise.”11 In line with this view, the Commission was
5
Declaration on Friendly Relations, supra note 3.
6 The so-called ‘safeguard clause’ of the 1970 Declaration was repeated, in slightly different language, in
the 1993 Vienna Declaration. United Nations World Conference on Human Rights, Vienna Declaration
and Programme of Action, 25 June 1993, 32 ILM 1661, 1665.
7
Reference re Secession of Quebec, supra note 4.
8 Id., 586-7, para. 132. For a less reticent ruling, however, about the ability of widespread human rights
abuse to trigger self-determination-type claims, see Concurring Opinion of Judges Wildhaber and
Ryssdal,
Loizidou
v.
Turkey,
EurCtHR
(1996);
available
at
http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/
For a calm and well-reasoned discussion of the right of self-determination in the creation of new states,
see JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 107-128 (2d ed., 2006).
9
10 For the establishment of the Commission, see Commission of the European Communities, Declaration
on Yugoslavia, 24 BULLETIN OF THE EUROPEAN COMMUNITIES 115 (1991).
11
Opinion No. 2 (reproduced), 3 EJIL 183-4 (1993).
2007]
Introduction – From Province to Protectorate to State?
5
willing to consider only claims to self-determination from the constituent republics
of the SFRY and only within their pre-war borders. The claim of Kosovo to selfdetermination in 1991 was expressly refused and the only State to recognise the
claim was Albania. If the province of Kosovo now has the right to choose
independent statehood over and above the territorial integrity of Serbia, that is, the
right to secession, what has changed?
The answer is, of course, the actions of Milosevic’s forces in Kosovo in 1998 and
1999 that led to the NATO intervention. The fact that Serbian actions seven years
ago continue to influence Kosovo’s cause for independence is confirmed by the
London Declaration of 31 January 2006 of the six nation Contact Group.12 While the
first part of paragraph 17 of this Declaration appears to be simply a restatement of
the doctrine laid down in the 1970 Declaration that states must conduct themselves
in such a manner so as to respect the internal self-determination of all its peoples –
“Ministers look to Belgrade to bear in mind that the settlement needs, inter alia, to
be acceptable to the people of Kosovo” – the second half of this same paragraph
makes clear that the Contact Group holds the human rights abuse that took place
prior to NATO intervention as relevant in determining final status. The paragraph
continues: “Ministers recall that the character of the Kosovo problem, shaped by the
disintegration of Yugoslavia and consequent conflicts, ethnic cleansing and the
events of 1999 … must be fully taken into account in settling Kosovo’s status.”
Arguably, it is possible to make sense of this statement only in the context of
breaches of the right to internal self-determination.
However, the threshold at which a denial of internal self-determination activates
the right to secession has been set very high. The Second Commission established
in 1921 under the auspices of the League of Nations to consider the matter of the
Aaland Islanders’ desire for separation from Sweden concluded that “The
separation of a minority from the State of which it forms a part … can only be
considered as an altogether exceptional solution, a last resort when the State lacks
either the will or the power to enact and apply just and effective guarantees.”13 One
could reasonably have argued that Milosevic’s regime lacked the will to ensure just
and effective guarantees, but it seems difficult to reach the same conclusion in
respect of the democratic government currently in office in Belgrade. Indeed,
12 The Contact Group is made up of the U.S., the U.K., France, Italy, Germany and Russia. It is working
closely with the UN Special Envoy for Kosovo, Martti Ahtisaari, and providing the framework in which
final status is negotiated. Statement by the Contact Group on the Future of Kosovo, 31 January 2006,
available at http://www.unosek.org , the official website of the Contact Group.
Bartram S. Brown, Human Rights, Sovereignty and the Final Status of Kosovo, 80 CHICAGO-KENT LAW
REVIEW 269 (2005), citing Report presented to Council of the League by the Commissioner of
Rapportuers, League of Nations Doc. B.7.21/68/106 (1921).
13
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GERMAN LAW JOURNAL
policing measures taken in respect of Vojvodina give all the appearance of a
Serbian regime able and willing to ensure effective guarantees for its KosovarAlbanian citizens; moreover, it has demonstrated that it is able to provide security
and stability in the context of this territory’s autonomous status.14 The abuses
reported by the Contact Group, although severe, are historical in nature and there
is arguably no reason at present to suppose, should a solution short of
independence be adopted, that these abuses will return. In May this year, the
people of Montenegro voted for independence from its union with Serbia and,
despite the apparent shock at the 55.5% vote in favour of dissolution of the bond, it
was accepted in Belgrade without dispute.15 The Serbia of Vojislav Koštunica is not
that of Milosevic.
Moreover, the blatant and well-documented serious human rights violations
against both the Serbian and Romani communities within the territory and the
inability and unwillingness of Kosovo’s administrators and would-be leaders from
the Albanian community to ensure even minimum standards of protection for
minority communities suggest that any recognition of the right of Kosovo to secede
from Serbia on the basis of human rights abuse would justifiably be followed by
similar claims from minority communities within any newly-independent Kosovo.
While abuse against Romani and Serb communities is not organised as part of a
government campaign, it is widespread, serious and possibly organised enough to
constitute systematic abuse. It would therefore seem dangerous and not a little
perverse to recognise a right of secession based upon historical human rights
abuses where the situation suggests that the rights of minority communities will
deteriorate further to the point that a counter-claim would have strong merit.
There is a further, more general, difficulty in allowing a claim to secession that is
based upon historical abuse that is no longer existent: how far back in time is it
reasonable to go in building evidence for a secessionist claim? Is ten years too
remote? Is Quebec entitled to secede after all because of abuses committed fifty or
sixty years ago by the English-speaking majority? The integration of Mercia into the
emerging English nation at the point of the sword of the King of Wessex was
probably no laughing matter, even by 10th century standards; could it be used as a
basis for a claim to secede from its southern neighbours? The last example may be
flippant, but the point is a serious one. The peace and security that the principle of
14 Moreover, such an autonomous regime is accepted by the majority of the Serbian population as
evidenced by the recent referendum in support of the new constitution, which includes several articles
guaranteeing self-rule for, as well as minority and human rights within, Vojvodina. See Serbia backs
draft constitution, 30 October 2006, http://news.bbc.co.uk/2/hi/europe/6097344.stm.
15
See
Montenegro
gets
Serb
http://news.bbc.co.uk/2/hi/europe/5083690.stm.
recognition,
15
June
2006,
2007]
Introduction – From Province to Protectorate to State?
7
territorial integrity is meant to ensure would arguably not be well-served by
accepting claims to self-determination based upon historical abuse, no matter how
recent the memories to the survivors.
II. Loss of Effective Control Equals the Loss of Sovereignty
The second argument that has been put forward by those involved in status talks,
which also suggests a loss of sovereignty, is not of the forfeiture type but is based
instead upon the principle of effectiveness. In order for a State to claim legal title to
a particular portion of territory it needs to be able to demonstrate a certain degree
of control over it. In the Island of Palmas Case, Arbitrator Huber concluded that
sovereignty over territory is a constant series of actions – commensurate with the
particular portion of the globe at issue – to guarantee its own inviolability, the
rights of other States and their nationals’ rights under international law.16 The
doctrine of effective control is further reflected in the third of the four criteria for
statehood laid down in the Montevideo Convention (1933).17 If the fact of
sovereignty lies in its performance, where a State cannot over a period of some
(considerable) time exercise effective control, it can be assumed to lose its legal title
to the portion of territory in question.
For the past seven years, effective control over the territory of Kosovo has been
exercised not by Serbia but by an international administration guaranteed by the
NATO-led KFOR force. Under the authorisation of SC Resolution 1244, United
Nations Mission in Kosovo (UNMIK) assumed all legislative and executive control,
including the task of the administration of justice, and was also empowered to take
control of and utilise all financial assets of the province. UNMIK has raised taxes
and issued stamps for use in the postal service it runs; it has changed the currency
and replaced the Serbian flag and all symbols of Serbia with UN regalia; it controls
borders, issues identity documents and enters into agreements with States.18
Serbia’s control has been further reduced by the Constitutional Framework for
Provisional Self-Government, declared in May 2001, which saw responsibilities in
the areas of economic policy, trade, customs, education, health, the environment,
agriculture and infrastructure transferred to Kosovar-run institutions. Although the
Special Representative of the Secretary-General (SRSG) retains the final say in all
16
Island of Palmas (Neth. v. U.S.) (1928), 2 R.I.A.A. 829.
These four criteria – a clearly defined territory, a population, effective government and the ability to
enter into relations with other States – have long been held to reflect customary international law in this
area.
17
18 See Constitutional Framework For Provisional Self-Government, UNMIK/REG/2001/9 (15 May 2001);
available at http://www.unmikonline.org/.
8
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[Vol. 08 No. 01
matters decided under the Interim Administration Structure, the Constitutional
Framework provides that the transfer of power to the people of Kosovo is to
continue. It is thus possible to argue that the international administration of Kosovo
has turned the province into a form of non-self-governing territory.19
International law has a history of recognising ex-post facto assertions of
sovereignty.20 Moreover, it can be argued that Serbia consented to the current
arrangements by the terms of the Agreement on Political Principles that it entered
into with Russia and the EU on 3 June 199921 and in the Military Technical
Agreement (MTA), which was signed not just by Col. General Marjanovic of the
Yugoslav Army, but also by Lt. General Stevanovic of the Ministry of Internal
Affairs on behalf of the governments of the FRY and the Republic of Serbia.22 These
two agreements contain terms that Serbia could reasonably have understood as
undermining its sovereign claim over the territory.
Can it reasonably be argued, therefore, that Serbia has lost sovereignty as a
consequence of the international administration of Kosovo? There are a number of
reasons to hesitate before advancing such a line of argumentation.
Firstly, the doctrine of effective control and its relationship to title to territory has
been seriously undermined in recent years, most especially in the region of the
Balkans. Recognition has been awarded to entities that cannot be understood as
having achieved effective control over the territory claimed; however, one can
argue that the premature recognition of Croatia and Bosnia-Herzegovina in 1992
and 1993 respectively reflected the anxious desire of the European community to
shore up these entities and not a legal judgement about whether or not they had
met the Montevideo criteria.23 Although an independent Kosovo would not be
Crawford asserts that territories that have been governed in such a way so as to create in effect nonself-governing territories may constitute a special category to which self-determination applies. As
possible examples for this category, he cites Kosovo, Bangladesh and perhaps Eritrea. See CRAWFORD,
supra note 9 at 126.
19
20 For example, the widespread recognition of Bangladesh in 1971 following its secession from Pakistan,
and despite the military assistance of India in resisting attempts by the Pakistani army to prevent East
Pakistan from breaking away.
21 Letter Dated 7 June 1999 from the Permanent Representative of Germany to the United Nations
addressed to the President of the Security Council, S/1999/649 (7 June 1999).
22 Military Technical Agreement between the International Security Force (KFOR) and the Governments
of the FRY and the Republic of Serbia, Kumanovo (FYRoM), 9 June 1999.
Similarly, Crawford has suggested that the hurried recognition of the Congo can be explained by an
interpretation of ‘government’ as comprising two elements: the actual exercise of authority and the right
or title to exercise that authority. With regard to the Congo, it is the latter element that prevailed.
23
2007]
Introduction – From Province to Protectorate to State?
9
unique in this regard, were it to be granted independence, Kosovo would remain
wholly economically dependent upon the international community – in particular
the European Union – for any foreseeable future. While economic dependency does
not equate with effective control, where a state is so totally dependent upon the
willingness of an external actor to finance all the functions of the state, the
understanding by which effective control is equivalent to independence becomes
somewhat meaningless. Where the assessment of effective control becomes so
subjective that it is completely absorbed within the decision of whether or not to
grant recognition, the ability of this doctrine to present a balanced account of
statehood is seriously undermined. The ability of states to live up to their
international obligations sits at the heart of international law.
Secondly, recognising that the de facto separation of Kosovo from Serbia by the fact
of an international administration was possible would render the pronouncements
on the inviolability of Serbian territorial integrity and political unity meaningless. If
de facto separation is sufficient to cut the cord of sovereign title, the international
community will effectively have presented Serbia with a no-win situation, in which
failure to accept the presence of UNMIK was read by the international community
as unwillingness to recognise the autonomous status of Kosovo and thus as
strengthening the demand of Kosovar Albanians for independence; while,
recognition of the (temporary) presence of the international community (even with
the understanding that it does not affect its territorial integrity) amounts to
acquiescence in the transfer of title. Such an outcome would make it highly unlikely
that the international community would be trusted in the future to administer a
contested territory neutrally and without prejudice to its final status. While there is
at least one recent example of transitional administration resulting in a ‘return’ of
sovereignty to the previous title holder,24 it seems reasonable to suggest that states
would fear the precedent that Kosovo would set when making the decision about
whether to authorise international administration. The ability of the international
community to perform a task that has come to be seen as vital would therefore be
negatively effected.
However, this was in the context of decolonization and the uncontested nature of title. There is no
agreement that Kosovo has the right to exercise sovereign governmental authority. See CRAWFORD, supra
note 9 at 56-8.
24 The Security Council established the UN Transitional Administration of Eastern Slavonia, Baranja and
Western Sirmium (UNTAES) with Resolution 1037 (1996). UNTAES comprised a military and civilian
component, and in addition to de-militarising the area, it provided policing, public services and
organised the re-settlement of refugees. Its mandate ended on 15 January 1991, when administration was
handed back to Croatia. See CRAWFORD, supra note 9 at 556-7.
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Thirdly, a plain textual reading of the resolution would appear to rule out this
argument. The wording of Security Council Resolution 1244 provides that the
international administration is to “promot[e] the establishment, pending a final
settlement, of substantial autonomy and self-government in Kosovo”. It would be
an odd interpretation to conclude from this clear statement of a final settlement still
being pending despite the actions of the administration, that the fact of
international administration can itself establish that settlement.
Furthermore, effective control is not always persuasive in determining where
sovereignty lies. From the moment of its unilateral declaration of independence in
November 1965 until the fall of the minority regime in 1979, Ian Smith’s
government of Southern Rhodesia exercised effective control over the territory to
the exclusion of all other powers, and yet, it failed to gain recognition as a state.25
Moreover, the context in which UNMIK is present in Kosovo, Security Resolution
1244 notwithstanding, is that of the illegal use of force by NATO. International law
has outlawed the changing of borders by military means in Article 2(4) of the UN
Charter. In Resolution 713 in relation to the situation in Iraq, the Security Council
made a clear statement that “no territorial gains or changes brought about by
violence are acceptable.”26 There is thus a strong presumption in international law
against independence born of military force or military occupation, and the
international community has taken a consistent line in the post-colonial era in
refusing to grant validity to acts committed by illegal force.27 The circumstances
leading up to the current situation should be reason to urge caution upon decisionmakers who are thinking of arguing that the loss of effective control equates with
the loss of sovereignty.
25 See S. C. Res. 216 (12 November 1965), condemning the “illegal racist minority regime” of Smith; G. A.
Res. 2024 (XX), (11 November 1965); more generally, see CRAWFORD, supra note 9 at 129.
26
S. C. Res. 713, (25 September 1991).
27 For the application of Article 2(4) UN Charter in this regard, see CRAWFORD, supra note 9 at 131-148.
According to Crawford, “where a state illegally intervenes in and foments the secession of a part of a
metropolitan state other states are under the same duty of non-recognition as in the case of illegal
annexation of territory.” Id. at 148. The refusal to recognise the Turkish Republic of Northern Cyprus has
been justified by some states, such as the UK, on the basis of the illegal military intervention by Turkey
that established it. Id. at 133. Furthermore, whether or not one views Kosovo as territory occupied by the
Security Council acting as the international community, the strict prohibitions of the transfer of title and
people of occupied territories under Section III of Geneva Convention IV (1949) reflect the widespread
unwillingness to allow the use of force to affect title.
2007]
Introduction – From Province to Protectorate to State?
11
C. The Security Council’s Power to Impose Independence
If arguments about a loss of sovereignty are unconvincing, the legal basis for an
independent Kosovo without the consent of Serbia will lie with the Security
Council, should it be so inclined. A number of bases have been suggested as
providing authorisation for imposed independence. First, the wording of Security
Council Resolution 1244 has been put forward; secondly, and most persuasively,
the powers the Council holds under Chapter VII of the UN Charter.
I. Resolution 1244
Security Council Resolution 1244 forms the legal basis for the UN administration in
Kosovo. It, however, appears to give no basis for an imposed solution. Indeed,
emphasis is given to the necessity of a negotiated agreement and the resolution is at
pains to affirm “the sovereignty and territorial integrity of the Federal Republic of
Yugoslavia and the other States of the region.” This impression is confirmed by the
two annexes to the resolution. Both the statement on the G8 Ministers of 6 May
1999 and the Kosovo Peace Accords agreed by Belgrade on 3 June 1999 use similar
language and call for a “political process … providing for substantial selfgovernment for Kosovo, taking full account of the Rambouillet Accords and the
principles of sovereignty and territorial integrity of the Federal Republic of
Yugoslavia.” The Rambouillet Accords, whilst affording Kosovo meaningful
autonomy, was to achieve this aim through negotiations between the two parties
while ruling out changes to the province’s borders, regardless of the rejection of the
Accords by Serbia. Within the normal meaning of the term “self-government” as
referring solely to control over internal affairs, the legal basis establishing the UN
mission in Kosovo appears to rule out independence unless established via a
consensual political process.
Of course, the Security Council is not bound by its own previous statements.
Rather, its powers under Chapter VII are exceedingly broad and far-reaching.28
II. The Maintenance of Peace and Security
Chapter VII of the UN Charter provides the UN Security Council with powers to
act in respect of threats to the peace, breaches of the peace and acts of aggression.
Under Article 39, it is for the Security Council itself to establish when such a
Among the considerable amount of literature in this area, see Vera Gowlland-Debbas, The Functions of
the United Nations Security Council in the International Legal System, in THE ROLE OF LAW IN
INTERNATIONAL POLITICS 277-313 (Michael Byers ed., 2000).
28
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situation exists and what measures are necessary to maintain or restore
international peace and security. Chapter VII does not, however, expressly grant
the Security Council the authority to alter the territorial borders of a State without
its consent. This power can be inferred, however, from the wording of Article 41. In
conferring upon the Council the authority to take the measures it deems necessary
to give effect to its decisions, Article 41 grants the Council exceptionally broad
powers in the fulfilment of its duty to maintain international peace and security,
stopping short of the use of force.29 Further, the doctrine of implied powers,
elucidated by the ICJ in reference to the extent of the scope of authority of UN
organs, determines that such organs “must be deemed to have those powers which,
though not expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties.”30
The Council has used Article 41 to give effect to decisions taken in pursuit of
international peace and security that have had far-reaching effects upon the
sovereignty of statehood. It has done so, for example, with regard to declaring
illegal territorial regimes that violate norms of non-discrimination on the grounds
of race, as in the decision not to recognise the declaration of independence by
Southern Rhodesia in 1965.31 Moreover, one could allege that the Security Council,
on numerous occasions, has pushed aside the principle of territorial integrity, by
altering territorial boundaries and/ or in granting independence to a contested
territory, all in furtherance of international peace and security. For example, the
implementation of the General Assembly’s Resolution on the partitioning of
Palestine was taken up by the Security Council under its Chapter VII powers at the
request of the Assembly;32 the Council also established an Iraq-Kuwait Boundary
Demarcation Commission in the wake of the First Gulf War;33 further, it
“persuaded” Indonesia to accept the independence of East Timor following the
ending of the UN Transitional Administration in East Timor.34 All these, so it can be
argued, were exceptional situations demanding of a far-reaching approach to the
maintenance of peace and security.
29 According to the ICTY’s interpretation of Article 41, the provision “provides no limits on the
discretion of the Council to take measure short of force”. Prosecutor v. Tadic (Jurisdiction), 1996, 35 ILM
35.
30
Reparation for Injuries, Advisory Opinion, 1949 ICJ 182 (11 Apr.).
31
S. C. Res. 216 (12 November 1965); S. C. Res. 217 (20 November 1965).
32
G. A. Res. 181 (29 November 1947); S. C. Res. 42 (5 March 1948).
33
S. C. Res. 687 (3 April 1991).
34
S. C. Res. 1271 (25 October 1999).
2007]
Introduction – From Province to Protectorate to State?
13
That the Security Council’s powers are practically unlimited, the concept of ius
cogens notwithstanding, has not been accepted by all, however. Indeed, Judge
Fitzmaurice in the Namibia case was categorical about the limits of the Security
Council’s powers, which he placed short of the ability to change territorial borders.
He opined:
Even when acting under Chapter VII of the Charter
itself, the Security Council has no power to abrogate or
alter territorial rights, whether of sovereignty or
administration … This is a principle of international
law that is as well established as any can be, - and the
Security Council is as much subject to it (for the United
Nations is itself a subject of international law) as any
of its individual member states. The Security Council,
after making the necessary determination under
Article 39 … [may] order the occupation of a country
or piece of territory in order to restore peace and
security, but it could not thereby, or as part of that
operation, abrogate or alter territorial rights; … It was
to keep the peace, not to change the world order, that
the Security Council was set up.35
Judge Fitzmaurice’s concern reflects the original understanding that the Security
Council was accorded such far-reaching powers on the condition that it confine its
actions to short-term measures to remove a threat to international peace and
security; thus, definitive settlements were to be left to the parties concerned or to be
dealt with by the Council under the non-coercive provisions of Chapter VI.36
Indeed, the question remains as to whether the Security Council can side-step the
non-coercive nature of its settlement dispute powers by placing such actions under
Chapter VII. The drafting of Article 1(1) appears to make clear that permanent
settlements, unlike enforcement action, must be made in conformity with justice
and international law. The extent to which imposing a permanent alteration of its
borders upon a state without its consent is compatible with the provisions of
international law, such as uti possidetis, is rather questionable.
35 Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory
Opinion, 1971 ICJ 16 (21 June).
THE CHARTER OF THE UNITED NATIONS. A COMMENTARY [hereinafter CHARTER] (Bruno Simma et al.
eds., 2d ed. 2002).
36
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While the Security Council has pushed aside these confines to a certain extent in
recent years, such as in Bosnia and the other examples given above, there are other
possible constraints upon its freedom of manoeuvre. Even if one accepts that the
Security Council possesses the authority under Chapter VII to alter permanently
territorial borders, can the situation in Kosovo be reasonably said to fall under
Article 39 as constituting a threat to international peace and security?37
It has been suggested in the course of discussions surrounding the final status talks
that Kosovo has formed a site of violent struggle for much of recorded European
history, and that its 600-year relationship with Serbia has frequently been one of
bitter contestation.38 The contested nature of the relationship between Serbia and
Kosovo notwithstanding, there is good reason to question whether enforcing
independence of Kosovo on an unwilling Serbia is more or less likely to lead to
instability in the region.
The loss of Slovenia, Croatia, Bosnia, Macedonia and now Montenegro means that
Serbs find themselves alone for the first time since 1918 in a state of independence
that they did not ask for. This catalogue of rejection could have a profound effect
upon the morale and outlooks of Serbs. The loss of Kosovo is likely, according to
one well-placed commentator, to trigger a ‘Trianon Syndrome’39 within Serbia – a
long-lasting bitterness and anger towards neighbours and those powers that
enforced such humiliation.40 The wave of public anger that followed the original
Treaty of Trianon brought a nationalist government to power in Hungary. While a
nationalist government has been in power ever since the ousting of Milosevic, the
fear is that the hard-line nationalists of the Serbian Radical Party, already the
largest party in parliament, will be swept to power in the elections on January 21,
2007, on the back of the “final insult” of an independent Kosovo. Whether or not
37 In the so-called ‘Spanish Question’, see the Sub-Committee’s response to Polish attempts to bring the
actions of the Franco regime under Article 39; the Sub-Committee found that because the activities do
not at present constitute an existing threat to international peace and security, “the Security Council has
no jurisdiction … under Article 40 or 42”. SCOR, 47th meeting, 18 June 1946, 370-376 ; further, in the case
of the Free City of Trieste, the Council was moved to justify the connection between the Trieste dispute
and the maintenance of international peace and security in the face of objections from the Australian
representative. SCOR, 89th meeting, 7 January 1947, 5-7.
For a history of the province and its relationship with more powerful neighbours, see TIM JUDAH,
KOSOVO: WAR AND REVENGE (2002).
38
39 The 1920 Treaty of Trianon imposed upon Hungary at the end of the First World War saw millions of
Hungarians left outside the new rump state of Hungary once large swathes of territory were divided up
among neighbours. This “re-distribution” provoked a bitterness that is still very much part of
Hungarian identity 85 years and many more upheavals later.
40
Tim Judah, Serbia: The Coming Storm, THE NEW YORK REVIEW OF BOOKS, 19 October 2006.
2007]
Introduction – From Province to Protectorate to State?
15
support for the Radical Party will swell in future elections with the votes from
those Serbs fleeing an independent Kosovo,41 the unhappiness of the wider public
at the prospect of an independent Kosovo was made clear in the recent
referendum.42
The same commentator has written of his observations that the region as a whole is
beginning to heal. Ordinary people are apparently reconnecting across the
boundaries of the independent ex-Yugoslav republics in matters of economy and
culture, crossing borders to shop, playing each other’s music on the radio, buying
each other’s literature.43 Imposing an independent Kosovo upon Serbia seems likely
to halt this process to some degree and, with a Radical Party government in
Belgrade, to lead to another period of instability in the region. Can the Security
Council reasonably be accepted as acting under Article 39 where the measures
adopted may lead to greater instability than the status quo?
There is also serious reason to doubt whether Article 39 can reasonably be applied
to the current situation between Kosovo and Serbia. This issue touches again upon
the utility of historical abuses and one can question whether Article 39 can
reasonably be activated by a situation no longer existent. To accept that the failure
to achieve independence will cause the majority Kosovar-Albanians to express their
displeasure by violent means and thereby undermine international peace and
security is to accept a form of blackmail that the Security Council should arguably
not seek to encourage.44
A further limit to Security Council powers is the need for measures to be
proportional.45 The phrasing of Articles 40 and 42 as authorising “necessary”
measures suggest an intention to limit the impact of enforcement measures by the
41 The UNHCR has made widely reported plans for what it anticipates to be a mass exodus in the wake
of an independent Kosovo. However, the likelihood of this occurring is much contested, it does seem
likely that some Kosovo Serbs will relocate.
The main issue in the referendum was the inclusion of a provision in the constitution stating that
Kosovo is an integral part of Serbia. The draft constitution was supported by 51.5% of voters, thus
passing the 50% threshold necessary to validate the vote. See Serbia backs draft constitution, supra note
14.
42
43
Judah, supra note 40.
44 For a statement that the response of the Kosovar Albanians to disappointment will see UNMIK lose
control of the province used as an argument for a swift conclusion to the talks in favour of
independence, see International Crisis Group, Kosovo Status: Delay is Risky (Brussels/ Pristina, 10
November 2006) available at http://www.crisisgroup.org/
45
CHARTER,
supra note 36 at 711.
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general principle of proportionality, although the Security Council is acknowledged
to have broad discretion in its interpretation of what is proportional in the
circumstances. One could suggest, however, that, given the historical nature of the
abuses upon which the normative case for independence appears to be premised, as
well as the existence of some doubts about the classification of an autonomous
Kosovo as a threat to international peace and security, the permanent alteration of
Serbia’s borders without its consent would be manifestly disproportionate to the
task of maintaining international peace and security.
Despite the doubts raised, there remain strong arguments to support the suggestion
that the Security Council is empowered under Chapter VII to grant Kosovo
independence; at least, that such action would be in line with earlier expansions of
Security Council powers. However, the far-reaching nature of permanently altering
borders against the express will of the state concerned, and concerns about the
proportionality of such action, means that this is not a decision to be taken lightly.
Despite attempts to persuade sceptical members of the Security Council that
Kosovo would be a one-off situation, it would be impossible to prevent it affecting
both the scope and nature of Security Council powers. Moreover, the events of the
last few years make clear that there are real dangers in attempting to re-fashion the
world order without the consent of those involved.
D. Implications for international law
At the end of the First Gulf War in 1991, Iraq was called upon by the Council to
recognise the terms of the ceasefire as laid down in SC Resolution 687, despite the
fact that the settlement was imposed by a victorious coalition. The Security Council
appeared to feel it necessary then to acknowledge the cloak of sovereignty. What
would be the consequences for the international order were the Security Council to
pull aside that cloak now and expose the nakedness of the entity that resides
behind it? It is, of course, impossible to know what the consequences of
independence for Kosovo will be for international law. The remainder of this article
will speculate nonetheless on some possible consequences of the most likely
outcome of the negotiations impasse, Security Council-imposed independence.
It is worth repeating that the Security Council has not previously permanently
changed borders without at least the fiction of consent of the states involved. To
explicitly do so will mark a new development in its competences and extent of its
authority. The move will constitute a far-reaching assault on state sovereignty,
converting the incursion of territorial administration into a permanent altering of
the relative dominions of states and the Security Council. While it is difficult not to
sympathise with a weakening of state sovereignty as a response to gross human
rights abuses, the relative shifting of power between states and the Security Council
2007]
Introduction – From Province to Protectorate to State?
17
is nonetheless dangerous because it is not likely to effect the more powerful states,
in particular those that possess a veto right on that body. A situation in which
weaker states can be stripped of sovereign title by the decision of a group of states
acting as the Security Council would have a fundamental impact upon the doctrine
of sovereign equality. Sovereign equality, while clearly problematic in a number of
regards, is an important bastion protecting the position of weaker states and the
peoples that they represent.46 Indeed, it has been convincingly argued that one of
the fundamental functions of international law is in providing formal equality to
actors that might otherwise not get a hearing, and that it is this that forms an
essential (the only?) distinction between international law and politics.47 Thus,
while international legal arguments can, of course, be mustered to support either
sovereignty or imposed independence, there is a strong sense in which support for
an independent Kosovo is a political choice rather than a legal one, and thus
undermines the wider goal of peace and security that the law is broadly intended to
serve.48
Moreover, as Srdjan Civic neatly observes in his contribution to this symposium,
where the military actions of NATO have a permanent effect, as would be the case
with the alteration of territorial boundaries without consent, they cannot be
understood as falling under the developing doctrine of humanitarian intervention
as so defined by Cassese.49 Cassese’s requirements for justified humanitarian
intervention lay down strict conditions for the use of force, the last of which is that
force be used solely to end human rights atrocities and for no other purpose. Thus
by going beyond the (then-) immediate concern of ending human rights abuses in
Kosovo by acting to permanently alter Serbia’s borders without its consent, the
Security Council would, so the argument runs, remove any plausible claim of
legality for NATO’s actions under the doctrine of humanitarian intervention and
thus the decision for independence would be based on the occasion of an illegal use
of force in contravention of the peremptory norm contained in Article 2(4) of the
46
See Benedict Kingsbury, Sovereign and Inequality, 9 EJIL 599 (1998).
See, in particular, in Martti Koskenniemi’s The Lady Doth Protect too Much, “against the particularity of
the ethical decision, formalism constitutes a horizon of universality, embedded in a culture of restraint
…” Koskenniemi, supra note 1 at 174. I am grateful to Euan MacDonald for reminding me of this
passage.
47
See Martti Koskenniemi, The Police in the Temple – Order, Justice and the U.N.: A Dialectical View 6 EJIL
334 (1995); see also Jason A. Beckett, Rebel Without a Cause? Koskenniemi and the Critical Legal Project, 7
GERMAN
LAW
JOURNAL
1045
(2006);
http://www.germanlawjournal.com/pdf/Vol07No12/PDF_Vol_07_No_12_1045-1088_SI_Beckett.pdf,
commenting on Koskenniemi’s work in this area.
48
49
See Cassese, supra note 1 and Srdjan Cviji! in this issue.
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UN Charter. The refusal to countenance changes to title of territory brought about
by military action, although occasionally breached in the last sixty years, has been a
highpoint of the UN-era. To accept the use of force as being indirectly capable of
altering borders would introduce it as a feature of the post-1989 period rather than
see it left behind as part of the process of de-colonisation. As a further consequence,
welcome or not, any distinction between humanitarian intervention and the
(illegal) use of force is fatally undermined by allowing the former to have
permanent consequences, and the misuse of humanitarian intervention in the
Kosovo situation will arguably set the continuing development of this doctrine and
its use to assist people at risk around the world back considerably.50 Moreover, as
suggested above, allowing territorial administration to either sever or act as a
pretext for severing the link of sovereignty will impact negatively upon the ability
of the UN to fulfil its increasingly vital peace-keeping and territorial administration
function. With this too, there is a strong risk that it will be the most vulnerable who
will suffer as a consequence.
While an imposed solution alters the balance that exists between self-determination
and territorial integrity – no bad thing in itself – it must also impact at a certain
level upon the internal functioning of the principle of self-determination. While
Kosovo would not be the first entity to gain the glory of independent statehood
without having achieved the merits thereof – the dangers of which were considered
above – at the core of self-determination is necessarily an element of bootstrapping, a moment at which a people calls itself into being. Sovereignty must be
both claimed and performed.51 There is something rather odd in accepting that
sovereignty can simply be granted. Thus, in appearing to forego the pouvoir
constitué by simply anointing the pouvoir constituant, there is a danger that the
Security Council will undermine the mystical power of self-determination that
makes the principle so fundamental to the legal order. Moreover, the Security
Council may find that appearing to support the self-determination claim of the
Kosovar-Albanians and being willing to use its vast powers to shift the lines on the
map will aggravate existing secessionist disputes. There is no need to use dialogue
to achieve peaceful resolution when one can appeal to the Security Council to take
your side against a powerful adversary; in fact, it may even encourage secessionist
claims to intensify the violence of a dispute so as to see it classified as a threat to
international peace and security; such claims can then push for territorial
50 While I accept that the existence of a doctrine of non-Security Council mandated humanitarian
intervention is hotly disputed, it is also supported by many. Without wishing to enter this debate, it
seems a wise policy to attempt to set clear limits to what appears to be an emerging doctrine, whether
one agrees with it or not.
See Neil Walker, Late Sovereignty in the European Union, in SOVEREIGNTY IN TRANSITION (Walker ed.,
2003).
51
2007]
Introduction – From Province to Protectorate to State?
19
administration and then ask the Security Council to grant their secessionist
wishes.52
E. Conclusions
While there seems little reason to doubt that the Security Council can impose
independence, despite the wise caution of Judge Fitzmaurice, were it to do so it
would act on dubious grounds.
It seems, on balance, more likely that independence for Kosovo will create
instability rather than stability. What the region appears to need most at present is a
period of quiet reflection in which pre-war economic and cultural connections can
re-establish themselves and not the continuing upheaval that an independent
Kosovo represents. While it may not be politic in the current climate to say so, a
reasonable argument can be made that the more stable solution at present is to
continue to develop Kosovo as an autonomous regime whilst deferring the decision
on its final status until wounds are less raw. This is the position of the Serbian
government and, faced with the alternatives, it sounds like the most reasonable
proposition despite the dramatic calls for urgent action from some quarters.53
Further, although the Security Council could argue, and most likely will argue if
the permanent five can be persuaded not to veto such a resolution, that Kosovo is
an exceptional case, it is unlikely that the precedent set will be able to be contained
within a secure box marked “sui generis.” Lawyers supporting the case for a
Security Council resolution instituting independence use earlier Security Council
interventions as evidence as to the law, despite that each, in their turn, were
considered to be exceptional; it would be unrealistic to imagine that future lawyers
will not use the decision about Kosovo in this way. Moreover, by explicitly stating
that the decision to impose independence stands outside the normal patterns of
international law, it will simply make it look vindictive to an already embittered
Serbian population smarting from the rejection of all its nearest neighbours.
According to James Crawford, the United Nations has not accepted for
membership any seceding entity that has done so against the wishes of the state
52 For example, one could argue that the Tamil Tiger party in the faltering cease-fire and failing peace
talks in Sri Lanka would have less incentive to compromise on government demands were the Security
Council to grant Kosovo independence. See Analysis: Sri Lanka talks fail, 30 October 2006,
http://news.bbc.co.uk/1/hi/world/south_asia/6099514.stm
53 The latest International Crisis Group report urges the Security Council to pass a resolution without
delay endorsing Ahtisaari’s proposals (that will be finalised at the end of January 2007) and handing
over power to Kosovo’s government. See International Crisis Group, supra note 44.
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from which it claims to be seceding.54 The case of Kosovo would make history, but
what would it do for international law?
On a final note, one last issue that the current negotiations over Kosovo bring
clearly to the fore – and what is highlighted by the contributors to this symposium
– is the need for the international community to cease instigating “trusteeship” on
an ad hoc basis and recognise instead the need for clear rules in this area. In this
regard, the proposed repeal of Article 108 of the UN Charter is particularly
unhelpful.55
If Kosovo is to claim a prominent place in the history of modern international law, I
hope that it does so primarily for forcing the international community to think
clearly about the implications of IGO-led territorial administrations and to develop
clear guidelines for the management and legal consequences thereof. This
symposium, then, is, in part, an argument in that direction.
CRAWFORD, supra note 9 at 417. This is of course not to suggest that there have not been contested
situations of secession, but that the former ‘parent’ state has reconciled itself to the new situation and the
new state has been accepted for membership of the United Nations.
54
55 See The Secretary-General, Review of the Role of the Trusteeship Council: Report of the Secretary-General,
U.N.Doc. A/50/1011 (1 August 1996), supporting the repeal of Article 108 as redundant.
ARTICLES
SPECIAL ISSUE – WHAT FUTURE FOR KOSOVO ?
Reviewing Governmental Acts of the United Nations in
Kosovo
By Rebecca Everly*
A. Introduction
The governmental role played by the United Nations in Kosovo since 1999 raises a
host of questions for international lawyers. Chief among these is whether
governmental acts of the United Nations Interim Administration Mission in Kosovo
(UNMIK) should be subject to review within Kosovo for compliance with
applicable legal standards. In principle, such review would be helpful in ensuring
UNMIK accountability and in sending the message that the governors—as well as
the governed—in Kosovo are subject to the rule of law. However, for many, the
prospect of actors in Kosovo second-guessing decisions taken by UNMIK is
problematic, partly due to a fear that review could be used to derail the UNMIK-led
peacebuilding process in the territory.
The present article examines the manner in which this polemical issue has played
itself out in the territory to date, focusing in particular on judicial review within
Kosovo of governmental acts taken by the head of UNMIK: the Special
Representative of the Secretary-General (SRSG).
It discusses both the formal
obstacles to such review and the manner in which the Kosovo judiciary has
responded to these obstacles. The article also briefly examines certain non-judicial
mechanisms established by UNMIK for the purpose of, inter alia, reviewing the
compliance of the SRSG and UNMIK with international human rights standards.
As background, the following section outlines the basis for SRSG governmental
authority in Kosovo, as well as the legal constraints on this authority.
Trinity College, Cambridge University, [email protected]. For the purpose of this article, the term
“judicial review” is used in a broad sense to denote the review by judicial bodies of UNMIK
governmental acts (primarily legal instruments issued by the head of UNMIK) for compliance with
applicable legal standards.
*
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B. Authority of the SRSG
The SRSG exercises governmental authority in Kosovo by virtue of United Nations
Security Council Resolution 1244, issued under Chapter VII on 10 June 1999.
Pursuant to this Resolution, the Security Council “[a]uthorizes the SecretaryGeneral […] to establish an international civil presence in Kosovo in order to
provide an interim administration for Kosovo under which the people of Kosovo
can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and
which will provide transitional administration” pending a settlement concerning
the territory.1 The Security Council further requests the Secretary-General to
appoint a Special Representative to control the implementation of the international
civil presence.2
The first individual to serve as SRSG in Kosovo, Bernard Kouchner, issued a
regulation specifying that “all legislative and executive authority with respect to
Kosovo, including the administration of the judiciary, is vested in UNMIK and is
exercised by the Special Representative of the Secretary-General.”3 In furtherance
of this mandate, the SRSG issues generally applicable legal acts in the form of
regulations and administrative directions, although in recent years a number of
laws have been passed by local institutions and enacted by the SRSG (sometimes
with alterations). The SRSG also issues case-based executive decisions for a variety
of purposes, e.g., to set aside ultra vires decisions of municipal authorities.
While not subject to a complex web of legal standards of the sort used to regulate
legislative and executive authorities in more orthodox governmental settings, the
SRSG is not entirely unbound by law. He is governed by Resolution 1244, which
lays out, in general terms, the rights and duties of the international civil presence in
Kosovo. As the head of a subsidiary organ of the United Nations, the SRSG is also
obliged to ensure that his conduct is consistent with the UN Charter, as well as
customary international law and general principles of law.
Moreover, SRSG-issued legal instruments are sometimes used to set out the rights
and duties of the SRSG and other UNMIK officials, although such instruments may
be altered or repealed by the SRSG himself. A key example is UNMIK Regulation
1999/24, which provides that:
“(i)n exercising their functions, all persons
1
S.C. Res. 1244, para. 10, U.N. Doc. S/RES/1244 (10 June 1999).
2
Id. at para. 6.
3 On the Authority of the Interim Administration in Kosovo, § 1.1, U.N. Doc. UNMIK/REG/1999/1 (25 July
1999).
2007]
Reviewing Governmental Acts of the United Nations in Kosovo
23
undertaking public duties or holding public office in Kosovo shall observe
internationally recognized human rights standards.”4 Regulation 1999/24 does not
expressly require that the SRSG himself observe internationally recognized human
rights standards or that SRSG-issued legal instruments comply with such
standards, but lawyers in the UNMIK Office of the Legal Adviser indicate that they
interpret the regulation in this manner.5
C. Judicial Review
While legal standards regulating the conduct of public authorities are important for
establishing and consolidating the rule of law in a given territory, their
effectiveness in this regard ultimately depends upon the existence of mechanisms—
including judicial mechanisms—for rendering authorities accountable in cases
where they violate such standards. In Kosovo, the potential for strong judicial
review of the SRSG’s decisions is diminished by the broad immunity that the SRSG
and UNMIK enjoy in the territory. A regulation issued by the SRSG in 2000
provides that: “UNMIK, its property, funds and assets shall be immune from any
legal process”6 and that the SRSG and certain other high-ranking UNMIK officials
“shall be immune from local jurisdiction in respect of any civil or criminal act
performed or committed by them in the territory of Kosovo.”7 Other UNMIK
personnel enjoy immunity from legal process for acts performed in their official
capacity.8 The broad immunity enjoyed by these actors is similar to that enjoyed by
many international organizations and international officials in host territories, and
is based on the UN Charter, which provides that the UN shall enjoy the immunity
necessary for fulfilment of its purposes in the territory of UN members, and that
UN officials shall similarly enjoy the immunity necessary for the independent
4 On the Law Applicable in Kosovo, § 1.3, U.N. Doc. UNMIK/REG/1999/24 (12 Dec. 1999). The applicable
human rights standards include: The Universal Declaration of Human Rights, G.A. Res. 217A, 3d Sess.,
1st plen. mtg., U.N. Doc. A/810 (12 Dec. 1948); The European Convention for the Protection of Human
Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (4 Nov. 1950); The International Covenant on Civil
and Political Rights, 999 U.N.T.S. 171 (16 Dec. 1966); The International Covenant on Economic, Social
and Cultural Rights, 993 U.N.T.S. 3 (16 Dec. 1976); The Convention on the Elimination of All Forms of
Racial Discrimination, 660 U.N.T.S. 195 (7 Mar. 1966); The Convention on the Elimination of All Forms of
Discrimination Against Women, 1249 U.N.T.S. 13 (18 Dec. 1979); The Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (10 Dec. 1984); The
Convention on the Rights of the Child, 1577 U.N.T.S. 3 (20 Nov. 1989).
5
Author interviews (Nov. 2004).
6 On the Status, Privileges and Immunities of KFOR and UNMIK and their Personnel in Kosovo, § 3.1, U.N.
Doc. UNMIK/REG/2000/47 (18 Aug. 2000).
7
Id. at § 3.2.
8
Id. at § 3.3.
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exercise of their functions.9 It is possible to waive immunity, but, to date, the
SRSG’s immunity has not been waived to allow claims to be brought against him in
connection with his governmental acts in Kosovo.
Both scholars and legal practitioners in Kosovo have pointed out that the broad
immunity enjoyed by the SRSG and UNMIK raises concerns from a human rights
standpoint,10 particularly in light of Article 6 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, which requires that: “[i]n
the determination of his civil rights…everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law.”11
In principle, SRSG/UNMIK immunity in Kosovo need not serve as a bar to judicial
review of SRSG-issued legal instruments. Even in countries with a strong tradition
of sovereign immunity, courts faced with legal instruments that are inconsistent
with higher-level law may often strike down or refuse to apply such instruments.
However, no sui generis judicial body exists for this specific purpose in Kosovo12
and local judicial bodies do not formally have jurisdiction to exercise this function.
In interviews conducted in November 2004 and May 2006, UNMIK lawyers
stressed that judicial bodies in Kosovo may not perform this type of review.
For the most part, courts in Kosovo have not sought to check or control the SRSG’s
governmental acts. In this regard, an international judge in Kosovo has observed
that many judges in the territory, including international judges, fear that they
would be accused of “rocking the boat” if they were to engage in the review of
9
U.N. Charter art. 105.
See, e.g., Ombudsperson Institution in Kosovo Special Report No. 1 on the Compatibility with Recognized
International Standards of UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR
and UNMIK and their Personnel in Kosovo (18 August 2000) and on the Implementation of the Above Regulation
(26 April 2001), http://www.ombudsperson kosovo.org/doc/spec%20reps/pdf/sr1.pdf; Carsten Stahn,
The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis, 5 MAX PLANCK
YEARBOOK OF U.N. LAW 105, 161 (2001).
10
11
European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 4.
12 In 2001, the SRSG created a short-lived “detention review commission” for reviewing a specific
category of SRSG-issued legal instruments: executive decisions detaining individuals outside the
regular judicial system in Kosovo. The detention review commission is no longer in operation, and was
only used in one case. While in operation, it was criticized for not meeting international human rights
standards as regards the right of individuals to challenge the lawfulness of their detention. See, e.g.,
Ombudsperson Institution in Kosovo Special Report No. 4: Certain Aspects of UNMIK Regulation No. 2001/18
on the Establishment of a Detention Review Commission for Extra-Judicial Detentions Based on Executive Orders
(12 September 2001), http://www.ombudspersonkosovo.org/doc/spec%20reps/pdf/sr4.pdf.
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Reviewing Governmental Acts of the United Nations in Kosovo
25
SRSG-issued instruments.13 Nevertheless, rare exceptions to this general tendency
do exist, where courts in Kosovo have refused to apply SRSG-issued legal
instruments or specific provisions of such instruments. Not all such attempts at
judicial review have been successful, but they are nevertheless quite useful in
illustrating the sometimes fractious relationship between the SRSG/UNMIK and
the Kosovo judiciary on the subject of review.
I. The Bota Sot Case
One interesting attempt at judicial review occurred in 2004, when the Pristina
District Court refused to apply a provision of an UNMIK administrative direction
on the alleged basis that it was inconsistent with a law of “higher rank” (i.e., the
Law on Regular Courts).14 The Court took the view that an administrative
direction, as a subsidiary legal instrument, could not take precedence over a law
applicable in Kosovo.
The case arose out of the issuance of a fine by the Temporary Media Commissioner,
an SRSG-appointed official tasked with promoting ethical and technical standards
for Kosovo’s media, against the owners and representatives of the daily newspaper
Bota Sot. When the targeted individuals refused to pay the fine, the Commissioner
sought enforcement through the Pristina District Court in accordance with UNMIK
Administrative Direction 2003/8, which provides the District Court with
jurisdiction over the place where the debtor resides with the competence to enforce
the fine.15 Administration Direction 2003/8 further provides that applications for
enforcement are to be heard by a single international judge on the Court.16 The
international judge in the instant case ruled the application for enforcement
inadmissible, based on the putative unlawfulness of the administrative direction.
Perhaps unsurprisingly, given UNMIK’s position on judicial review of SRSG-issued
legal instruments, the District Court’s decision was not well received by the
UNMIK Office of the Legal Adviser. The Legal Adviser sent an interoffice
memorandum to the then Director of the UNMIK Department of Justice,
responsible for overseeing the construction of an independent and competent
13
Author interview (Oct. 2005).
14
District Court of Pristina, E No. 1/2004 (16 July 2004)
Administrative Direction No. 2003/8 Implementing UNMIK Regulation No. 2000/36 on the Licensing and
Regulation of the Broadcast Media in Kosovo and UNMIK Regulation No. 2000/37 on the Conduct of the Print
Media in Kosovo, §§ 1.3, 1.10, U.N. Doc. UNMIK/DIR/2003/8 (8 April 2003).
15
16
Id. at § 1.5.
26
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judiciary in Kosovo, which stressed that both UNMIK regulations and
administrative directions took precedence over other applicable law in Kosovo and
warned that the Court’s decision could constitute a serious challenge to SRSGissued legal instruments.17 Ultimately, the case was appealed to the Kosovo
Supreme Court, where a panel headed by an international judge overruled the
District Court’s decision and returned the case to the District Court for examination
and decision in accordance with Administrative Direction 2003/8.18
An
international judge on the District Court (not the judge responsible for the original
inadmissibility decision) subsequently issued an order enforcing the fine.19
II. The Termosistem Case
Another, more successful, example of judicial review is the decision of the Special
Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related
Matters in the 2004 Termosistem case.20 The Special Chamber, which has a mandate
to hear claims arising in connection with the ongoing privatization process in
Kosovo, refused to apply a provision of an SRSG-issued regulation that it
considered to be inconsistent with international human rights standards.
In this case, a panel of the Special Chamber composed of three international and
two local judges examined the complaints of a group of Kosovo Serbs against the
Kosovo Trust Agency, the body responsible for privatization of socially owned
enterprises in Kosovo. The complainants sought a share in the proceeds from the
privatization of the company Termosistem in accordance with UNMIK Regulation
2003/13, which confers upon employees an entitlement to a share of the proceeds
from the privatization of socially owned enterprises. To be eligible for a share of
the proceeds, employees must have been employed with the enterprise at the time
of the privatization and on the payroll of the enterprise for not less than three years,
although 2003/13 provides an exception to these eligibility requirements in cases
where the employee would have been eligible if she or he had not been subjected to
discrimination.21
17
Author interview with UNMIK Department of Justice official (May 2006).
18
Supreme Court of Kosovo, AC 37/2004 (20 Aug. 2004).
19
District Court of Pristina, E No. 2/04 (14 Jan. 2005).
20 Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Matters, SCEL 04-0001 (9
June 2004).
21
On the Transformation of the Right of Use to Socially Owned Immovable Property, § 10, U.N. Doc.
UNMIK/REG/2003/13 (9 May 2003).
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27
The complainants argued that they should have been included on a list of
Termosistem employees eligible for a share of the proceeds from the company’s
privatization, and that their names were not listed on the register of the company at
the time of privatization because of their Serbian ethnicity. Significantly, although
Regulation 2003/13 requires that claims of discrimination be accompanied by
documentary evidence of the alleged discrimination,22 the Chamber refused to
apply this provision on the grounds that requiring documentary evidence of
discrimination was inconsistent with relevant international human rights
standards.
The Chamber, taking into account relevant non-documentary evidence, determined
that the complainants had been subjected to discrimination and that, but for the
discrimination, they would have been listed as employees of Termosistem at the time
of its privatization. It thus ordered that their names be added to the list of
employees eligible to receive a share of the proceeds from the privatization.
Following the Chamber’s decision, the SRSG promulgated an Anti-Discrimination
Law adopted by the Kosovo Assembly, which allows complainants to establish or
defend cases of discrimination by any means, rather than solely through
documentary evidence.23 While this law appears to address the concerns expressed
by the Chamber, a lawyer in the UNMIK Office of the Legal Adviser has noted that
the provisions in the law concerning evidence of discrimination were not
specifically promulgated in response to the Termosistem case and should not be
understood as signifying UNMIK acquiescence to judicial review of SRSG-issued
instruments by bodies in Kosovo—whether for compliance with international
human rights standards or any other legal standards governing the SRSG.24
III. The Mobikos Case
In 2005, the Pristina Municipal Court ordered the execution of a contract in
contravention to a relevant SRSG executive decision.25 The contract, which was
22
Id.
On the Promulgation of the Anti-Discrimination Law Adopted by the Assembly of Kosovo, U.N. Doc.
UNMIK/REG/2004/32 (20 Aug. 2004). After the promulgation of the law, the presiding judge in the
Termosistem case requested clarification from the SRSG as to whether Regulation 2004/32 promulgating
the anti-discrimination law supersedes inconsistent provisions of Regulation 2003/13. The SRSG
confirmed that this is the case. Memorandum from the Special Representative of the Secretary-General
(11 Jan. 2006) (on file with author).
23
24
Author interview (May 2006).
25
Municipal Court of Pristina, P. br. 3044/04 (16 Mar. 2005).
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concluded by the Telecommunications Regulatory Authority in Kosovo (TRA) and
the company Mobikos, envisaged that Mobikos would provide mobile telephone
services in Kosovo. It was signed against the wishes of the SRSG, who had issued
an executive decision cancelling the tender process for the mobile phone operator
after determining that the process was flawed.
In its very brief decision in this case, the court did not clarify why it refused to
apply the relevant SRSG executive decision. This refusal prompted a strong
reaction from UNMIK. At a press briefing on 23 March 2005, the spokesperson for
UNMIK announced that the agreement between the TRA and Mobikos was null
and void by virtue of the SRSG’s executive decision and that the decision of the
court was therefore without legal basis and unenforceable.26 The contract was not
executed as a result of UNMIK’s intervention.27
IV. The Berisha and Goci Transfer Cases
While the main focus of this section is judicial review of SRSG-issued legal
instruments in Kosovo (i.e., regulations, administrative directions and executive
decisions), it is useful to highlight two recent cases in which the Kosovo Supreme
Court refused to apply agreements concluded by UNMIK with officials of foreign
states. In these cases, decided in January of 2006, an appellate panel of the Court
reviewed agreements concluded by UNMIK with the government of the United
Kingdom (UK) and the Swiss liaison office in Pristina, which provided for the
transfer of Kosovo residents Luan Goci and Bashkim Berisha to the UK and
Switzerland, respectively, for the purpose of facing criminal proceedings.28
In accordance with the Provisional Criminal Procedure Code of Kosovo, issued by
the SRSG, a resident of Kosovo may be transferred to a foreign jurisdiction if “(h)is
or her transfer is permitted by an international agreement”29 and certain other
prerequisites are met. In the Berisha and Goci cases, the transfer agreements took the
form of a memorandum of understanding with an individual declaring to represent
the UK government and an exchange of letters with the Swiss liaison office. The
appellate panel, with an international judge presiding, decided that these
instruments did not constitute “international agreements” for the purpose of the
26
UNMIK press briefing (23 Mar. 2005).
27
Author interview with UNMIK official (May 2006).
28 Supreme Court of Kosovo, Pn-Kr 333/05 (30 January 2006); Supreme Court of Kosovo, Pn-Kr 335/2005
(30 Jan. 2006).
29
On the Provisional Criminal Procedure Code of Kosovo, U.N. Doc. UNMIK/REG/2003/26 (6 July 2003).
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Reviewing Governmental Acts of the United Nations in Kosovo
29
Criminal Procedure Code and thus refused the petition for transfer of the
individuals concerned. In the view of the Court, the UK and Swiss officials
involved could not be viewed as representing their states for the purpose of
concluding valid international agreements. The Court also expressed some concern
as to whether UNMIK possessed the legal personality necessary to conclude
international agreements.
An official in the UNMIK Department of Justice, interviewed in May 2006,
confirmed that the individuals concerned had not been transferred and that,
instead, the agreements on their transfer are in the process of being redrafted.
However, following issuance of the Supreme Court’s decisions, and in a reprise of
its reaction to the 2004 Bota Sot case described above, the UNMIK Legal Adviser
sent an interoffice memorandum to the Director of the Department of Justice
expressing his strong disagreement with the decisions. The Legal Adviser argued
that the agreements on transfer involved in the Berisha and Goci cases were valid
international agreements for the purpose of the Provisional Criminal Procedure
Code and that, accordingly, the Supreme Court’s refusal of the petition for transfer
in these cases was not justified. The Legal Adviser also asked that his position be
presented to the Supreme Court of Kosovo for reference in future cases.30
V. Concerns within UNMIK Regarding Judicial Review
It is apparent from the discussion above that high-level UNMIK decision-makers
do not tend to look favourably upon attempts by courts in Kosovo to exercise
judicial review over SRSG or UNMIK governmental acts, although the response to
such attempts has been ad hoc. UNMIK’s resistance to judicial review is perhaps
best evidenced by its position that the 2005 Mobikos decision of the Pristina
Municipal Court is “without legal basis” and “unenforceable.” In other cases
where courts have refused to apply provisions of SRSG-issued instruments (or, in
the Berisha and Goci cases, an UNMIK agreement), UNMIK lawyers have tended to
voice disapproval without going so far as to declare the courts’ decisions
unenforceable.
In this context, one should bear in mind that not all of the attempts at judicial review of SRSG/UNMIK governmental acts in Kosovo are strongly grounded in law.
For instance, the international judge in the Bota Sot case, in refusing to apply an
SRSG-issued administrative direction, appears to have simply disregarded an
SRSG-issued regulation specifying that regulations and subsidiary instruments
30
Author interview with UNMIK Department of Justice official (May 2006).
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(including administrative directions) take precedence over other domestic law.31 In
contrast, the refusal of the Special Chamber of the Kosovo Supreme Court on Kosovo Trust Agency Related Matters to apply a provision of an SRSG-issued Regulation is based on UNMIK Regulation 1999/24, which obliges public officials to observe internationally recognized human rights standards. Yet, as noted above, the
position of UNMIK is that judicial bodies in Kosovo are not competent to engage in
review of SRSG-issued decisions on any grounds. This seems paradoxical in light of
UNMIK’s involvement in establishing and consolidating the rule of law in Kosovo,
and concern is frequently expressed that it sets a bad example for local authorities
in the territory.
These problems are compounded by the dearth of opportunities for review of SRSG
conduct by international judicial bodies. Such bodies typically do not have jurisdiction to hear complaints against international organizations and international officials. Moreover, attribution of the SRSG’s governmental conduct to Kosovo does
not remedy the problem. Kosovo is not an independent state, and is not a party to
international agreements, such as the European Convention for the Protection of
Human Rights and Fundamental Freedoms, that would allow claims to be brought
against it before international bodies. Finally, UNMIK has expressed the view that
“Serbia and Montenegro cannot be held responsible for an alleged violation of human rights arising from an act or omission attributable to UNMIK.”32
UNMIK’s position on judicial review of SRSG and UNMIK governmental acts by
bodies in Kosovo appears to be influenced by the fact that international
organizations, including the UN, often operate outside the control of judicial bodies
in their host territories (whether as a consequence of immunity or other obstacles to
domestic jurisdiction). A high-level UNMIK official suggests that UNMIK’s
resistance to judicial review also stems from a concern that allowing judicial bodies
in Kosovo to check the SRSG’s power could hinder the process of post-conflict
31
The regulation specifies:
The law applicable in Kosovo shall be:
(a) The regulations promulgated by the Special
Representative of the Secretary-General and
subsidiary instruments issued thereunder; and
(b) The law in force in Kosovo on 22 March 1989.
In case of a conflict, the regulations and subsidiary instruments issued
thereunder shall take precedence.
UNMIK/REG/1999/24, supra note 4, at § 1.1 (emphasis added).
32 Report Submitted by the United Nations Interim Administration Mission in Kosovo to the Human Rights
Committee on the Human Rights Situation in Kosovo since June 1999, at 29, U.N. Doc. CCPR/C/UNK/1 (13
Mar. 2006).
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Reviewing Governmental Acts of the United Nations in Kosovo
31
peacebuilding in the territory. Contributing to this concern are specific, ongoing
problems within the Kosovo judiciary, including poor management of cases,
executive interference, judicial bias and intimidation of judges.33 UNMIK has
integrated international judges into the Kosovo judicial system partly to address
these problems, but such judges are few in number and resolving the problems of
Kosovo’s judiciary is a long-term project.
D. Non-Judicial Review
Notwithstanding the dearth of formal judicial mechanisms in Kosovo for reviewing
SRSG and UNMIK governmental acts, the SRSG has established certain non-judicial
mechanisms in the territory for the purpose of, inter alia, reviewing SRSG and
UNMIK conduct for compatibility with international human rights standards.
From 2000 to the end of 2005, the primary mechanism of this type was the
Ombudsperson Institution in Kosovo established by UNMIK Regulation 2000/38.34
During this period, the Institution was headed by Polish human rights lawyer
Marek Antoni Nowicki, who was appointed by the SRSG but, according to
Regulation 2000/38, was intended to operate independently.35
Pursuant to 2000/38, the international Ombudsperson had jurisdiction “to receive
and investigate complaints from any person or entity in Kosovo concerning human
rights violations and actions constituting an abuse of authority by the interim civil
administration or any emerging central or local institution…”36 (emphasis added).
Toward this end, he could “receive complaints, monitor, investigate, offer good
offices, take preventive steps, make recommendations and advise on matters
relating to his…functions.”37 While the Ombudsperson did not have the power to
issue binding decisions, he prepared special reports on general situations and
individual case reports, either following a complaint or ex officio.
During his tenure, the international Ombudsperson was highly critical of the
33 For an overview of the state of Kosovo’s judiciary, see the reports of the Legal Systems Monitoring
Section of the Organization for Security and Co-operation in Europe (OSCE) mission in Kosovo,
available on the mission’s website at http://www.osce.org/kosovo. The OSCE mission forms a distinct
component of UNMIK.
On the Establishment of the Ombudsperson Institution in Kosovo, U.N. Doc. UNMIK/REG/2000/38 (30
June 2000).
34
35
Id. at § 2.1.
36
Id. at § 3.1.
37
Id. at § 4.1.
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SRSG’s and UNMIK’s compliance with international human rights standards, both
in formal reports and in the media. He issued a report at the beginning of his
mandate which criticized the broad immunity enjoyed by the SRSG and UNMIK
officials in Kosovo, finding such immunity to be inconsistent with, inter alia, the
right of access to court.38 In this connection, the Ombudsperson noted that the
purpose of granting immunity to international organizations is to protect them
from governmental interference in the territories where they are based, and that a
wide grant of immunity is illogical in cases such as Kosovo where an international
organization serves as a governmental actor. He thus recommended that immunity
be limited.
The international Ombudsperson issued a number of other reports critiquing
SRSG-issued decisions, including SRSG extra-judicial detentions39 and an SRSG
regulation that allows UNMIK to refuse to permit the registration of contracts for
the sale of residential property in areas of Kosovo with a predominantly ethnic
minority population.40 These reports certainly had an important sunshine effect.
However, the Ombudsperson had no power to compel the SRSG to follow his
recommendations. In some cases, the SRSG and UNMIK took action in response to
such recommendations but, in other cases, they openly disagreed with him or
simply did not respond to his concerns.41 The Human Rights Committee, in
particular, has criticized UNMIK for not always extending “due cooperation” to the
Institution.42
In an address to the Committee on Legal Affairs and Human Rights of the
Parliamentary Assembly of the Council of Europe in March 2004, the
Ombudsperson outlined a particular constraint on his ability to provide a rigorous
check on SRSG governmental authority:
38
Special Report No. 1, supra note 10.
Ombudsperson Institution in Kosovo Special Report No. 3 on the Conformity of Deprivations of Liberty under
‘Executive
Orders’
with
Recognised
International
Standards
(29
June
2001),
http://www.ombudspersonkosovo.org/doc/spec%20reps/ pdf/sr3.pdf.
39
Ombudsperson Institution in Kosovo Special Report No. 5 On Certain Aspects of UNMIK Regulation No.
2001/17 on the Registration of Contracts for the Sale of Real Property in Specific Geographical Areas of Kosovo (29
Oct. 2001), http://www.ombuds personkosovo.org/doc/spec%20reps/pdf/sr5.pdf.
40
41
Author interview with Marek Antoni Nowicki (Nov. 2004).
HUMAN RIGHTS COMMITTEE, CONCLUDING OBSERVATIONS OF THE HUMAN RIGHTS COMMITTEE KOSOVO
(REPUBLIC OF SERBIA), at 3, U.N. Doc. CCPR/C/UNK/CO/1, (14 August 2006), available at
http://www.unhchr.ch/TBS/doc.nsf/7cec89369c43a6dfc1256a2a0027ba2a/58c3c45e32382c0fc125722000
3e967b/$FILE/G0643691.doc.
42
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Reviewing Governmental Acts of the United Nations in Kosovo
33
The Ombudsperson may, if he considers that a
human rights violation has taken place, report this
directly to the SRSG, thereby submitting his
findings directly to the final supervisor of that
same international or local organ which was
responsible for the violation in the first place. It is
very questionable whether such a system can lead
to an effective human rights protection, in
particular in cases of violations in areas under the
direct responsibility of the SRSG.43
He therefore concludes that:
It would be much better if the reports of the
Ombudsperson were delivered directly to the
Secretary-General of the United Nations. In future
cases involving the establishment of an
Ombudsperson Institution by the international
community in other regions of the world, I would
strongly advise the competent decision-makers to
reconsider and change the current system in favor
of a more effective one.44
The Ombudsperson Institution still exists in Kosovo, but it has been converted into
a wholly domestic body. It is to be headed by a local Ombudsperson following the
latter’s appointment by the Kosovo Assembly.
Presently, a local acting
Ombudsperson fills this role. UNMIK Regulation 2006/6, issued by the SRSG in
February 2006, sets out the new mandate of the Institution, which does not include
the power to investigate possible human rights violations by the SRSG or UNMIK.45
The Regulation provides that “[t]he Ombudsperson Institution may enter into a
bilateral agreement with the Special Representative of the Secretary-General on
procedures for dealing with cases involving UNMIK.”46 However, this wording is
quite similar to language in Regulation 2000/38 concerning the relationship
43 Marek Antoni Nowicki, The Human Rights Situation in Kosovo, Address at the Meeting of the
Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe
(16 Mar. 2004).
44
Id.
45
On the Ombudsperson Institution in Kosovo, U.N. Doc. UNMIK/REG/2006/6 (16 Feb. 2006).
46
Id. at § 3.4.
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between the Ombudsperson Institution and the NATO-led force in Kosovo, over
which the Institution never formally had jurisdiction.
Recently, another non-judicial mechanism was created for the purpose of hearing
complaints regarding the non-compliance of UNMIK with international human
rights standards. This mechanism, the “Human Rights Advisory Panel,” was
established by UNMIK Regulation 2006/12 on 23 March 2006.47 It is to be
composed of three international jurists appointed by the SRSG upon the proposal of
the President of the European Court of Human Rights. According to a Council of
Europe official in Kosovo, the members of the Panel have not yet been appointed,
although the Panel’s secretariat is currently taking complaints.48
The Panel has competence to examine complaints from any person or group of
individuals claiming to be the victim of a violation by UNMIK of the human rights
contained in specific international agreements, including the Universal Declaration
of Human Rights; the European Convention for the Protection of Human Rights
and Fundamental Freedoms and the International Covenant on Civil and Political
Rights.49 The Panel’s jurisdiction is limited to complaints arising from facts
occurring no earlier than 23 April 2005, unless such facts give rise to a continuing
violation of human rights.50 Until the Panel is formed, complaints against UNMIK
lodged with the Ombudsperson Institution remain pending, but the latter no longer
has authority to investigate them.
In examining complaints, the Panel is obliged to hold oral hearings where it is in
the interests of justice, issue findings as to whether there has been a breach of
On the Establishment of the Human Rights Advisory Panel, U.N. Doc. UNMIK/REG/2006/12 (23 Mar.
2006).
47
48 Author interview (July 2006). As this article is being prepared, three jurists proposed by the President
of the European Court of Human Rights for membership on the Panel are awaiting appointment. One of
the individuals proposed is Marek Nowicki, the former international Ombudsperson in Kosovo.
49 UNMIK/REG/2006/12, supra note 47, at § 1.2.
The full list of international instruments is: The
Universal Declaration of Human Rights, G.A. Res. 217A, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (12
Dec. 1948); The European Convention for the Protection of Human Rights and Fundamental Freedoms,
213 U.N.T.S. 221 (4 Nov. 1950); The International Covenant on Civil and Political Rights, 999 U.N.T.S.
171 (16 Dec. 1966); The International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3
(16 Dec. 1976); The Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S.
195 (7 Mar. 1966); The Convention on the Elimination of All Forms of Discrimination Against Women,
1249 U.N.T.S. 13 (18 Dec. 1979); The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (10 Dec. 1984); The Convention on the Rights of
the Child, 1577 U.N.T.S. 3 (20 Nov. 1989).
50
UNMIK/REG/2006/12, supra note 47, at § 2.
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35
human rights and, where necessary, make recommendations to the SRSG.51 As
with the international Ombudsperson who operated in the territory through 2005,
the ability of the Panel to serve as a powerful check on SRSG/UNMIK authority in
Kosovo is circumscribed. It has no power to enforce its recommendations, and the
SRSG has exclusive authority and discretion to decide whether to act on its
findings.52 It has also been suggested that the Panel is more of an in-house
mechanism than an independent check on the power of the SRSG and UNMIK.53
The Human Rights Committee, for its part, has expressed concern that the
Advisory Panel “lacks…necessary independence and authority.”54
E. Conclusion
Despite the fact that UNMIK exercises extensive governmental authority in Kosovo
through the SRSG, the latter’s acts are generally not subject to judicial scrutiny. The
SRSG enjoys broad immunity, and no judicial body in Kosovo formally has a mandate to review the legality of SRSG-issued instruments. In rare cases, judicial bodies
in the territory have refused to apply such instruments or provisions thereof, but
UNMIK officials have expressed disapproval with these attempts at judicial control.
The dearth of mechanisms available for judicial review of the SRSG in Kosovo is, in
some ways, unsurprising. International organizations and officials are often exempt from the scrutiny of judicial bodies in the territories where they operate. In
addition, the dearth of judicial review mechanisms appears to be related to a desire
on the part of high-level UNMIK decision-makers to maintain control over the
peacebuilding process and an attendant reluctance to allow their power to be
checked by Kosovo’s weak judiciary.
Two key non-judicial mechanisms have been established during UNMIK’s tenure
in Kosovo with responsibility for, inter alia, monitoring SRSG and UNMIK conduct
for compliance with international human rights standards: an international Ombudsperson and a Human Rights Advisory Panel. The former operated in Kosovo
51
Id. at §§ 14, 17.1.
52
Id. at § 17.3.
53
Author Correspondence with International Official in Kosovo (July 2006).
54 Human Rights Committee, supra note 42, at 3. While this section is focused on non-judicial
mechanisms within Kosovo for reviewing SRSG/UNMIK conduct, one should be aware that UNMIK
recently submitted a report on the overall human rights situation in Kosovo to the Human Rights
Committee and the Committee on Economic, Social and Cultural Rights, as well as a report on
implementation of the principles contained in the Framework Convention for the Protection of National
Minorities to the Committee of Ministers of the Council of Europe. The submission of these reports
allows for some broad non-judicial oversight of UNMIK conduct by international bodies.
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until the end of 2005, and was quite active in drawing attention to areas where
SRSG-issued instruments failed to conform to international human rights standards
and making recommendations for change. Nevertheless, in many cases, the Ombudsperson’s recommendations met with no response, and the Ombudsperson had
no means at his disposal for enforcing them. The latter mechanism, the Human
Rights Advisory Panel, is not yet operational, and it remains to be seen how effective it will be in checking UNMIK conduct. One should bear in mind in this context
that the Advisory Panel is being constituted on the eve of UNMIK’s departure from
Kosovo and it has no power to enforce compliance with its findings and recommendations.
When contemplating future experiments with governance by international organizations, or “international territorial administration,” it is important to consider the
experience of the SRSG and UNMIK on the issue of review. One lesson to be taken
from this experience is that an international administrator’s determination to remain outside of the judicial system in the administered territory is likely to be met
with resistance from at least some local courts. To help minimize conflicts, international actors performing governmental functions should, at the outset of their mandate, clarify the jurisdiction of local courts with regard to their governmental acts.
Clarity regarding local jurisdiction is not, however, sufficient. From a rule of law
perspective, it is important to ensure that some avenues are available for holding
such actors judicially accountable for their governmental conduct. International
actors performing governmental functions take actions with wide-ranging effects
on individuals in the territories where they are deployed, and judicial accountability is important for protecting the rights of these individuals. Particularly in cases
where international actors are deployed in post-conflict situations with non-existent
or weak judiciaries, it may be advisable to establish a sui generis judicial body, of
either international or mixed international/local composition, for the purpose of
hearing complaints concerning the governmental conduct of these actors and reviewing the legal instruments issued by these actors for compliance with applicable
law (e.g., constituent instruments and relevant human rights standards).
Non-judicial mechanisms can provide a useful supplemental means of review, but
the experience of the SRSG and UNMIK in Kosovo suggests that, for such mechanisms to be effective, they must be met with support and cooperation. Even if an
international actor does not agree with the recommendations of non-judicial review
bodies, it should be obliged to respond to such recommendations—ideally listing
the reasons for any points of disagreement. In order to increase the likelihood that
international actors will cooperate with non-judicial review bodies, it may be advisable for the latter to report their findings and recommendations to those charged
with overseeing the actors’ work (e.g., the Secretary-General in cases of UN interna-
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Reviewing Governmental Acts of the United Nations in Kosovo
37
tional territorial administration). Finally, non-judicial mechanisms should maintain
a level of independence that allows them to effectively provide a check on international actors’ governmental conduct. Taken together, these steps would help to
ensure that the often extensive power exercised by international administrators is
subject to the type of checks and constraints that have come to be associated with
responsible governance.
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ARTICLES
SPECIAL ISSUE – WHAT FUTURE FOR KOSOVO ?
Legitimacy and UN-Administration of Territory
By Bernhard Knoll*
A. Introduction
Given the scope of authority the United Nations has assumed in order to perform
functions of territorial administration both in East Timor and Kosovo, it is, as one
commentator remarked, rather surprising that the issue of the legitimacy of the
internationalisation of state structures through post-conflict governance has
inspired little debate.1 There are myriad reasons for the erosion of political
authority in a territory temporarily administered by the international community –
corruption, local obstructionism and internal divisions, failure to promote
government transparency, a tenuous link between civil administration and the
military command structure, the operation of (inter)national networks of
patronage, and general incompetence, to name a few. This article analyses some of
the inherent tensions involved in international institution-building. It introduces the
variety of actors operating in an internationalised territory as the quest for
legitimacy creates tensions between them, and portrays the dynamics that unfold in
a process in which notions of legitimacy are subject to institutional contestation.
This discussion proceeds in two stages. First, I describe the basic components on
which legitimacy rests in a system in which the exercise of power is shared between
international and local institutions, concluding that legitimacy rests on a process
that seeks to gradually devolve public authority from the former to the latter.
Second, I argue that international agents and local actors rely on discrete sources of
legitimacy to justify the exercise of public power. An analysis of a territorial
Mag.iur. (Vienna Law School), MA (Johns Hopkins/SAIS), Ph.D. (European University Institute,
Florence). The author has worked in various positions in the OSCE Missions in Bosnia and Kosovo, most
recently as (acting) Temporary Media Commissioner in Prishtina, and is currently a Special Adviser to
the Director of the OSCE Office of Democratic Institutions and Human Rights (ODIHR) in Warsaw. He
thanks Prof. Pierre-Marie Dupuy of the EUI for commenting on earlier drafts of the paper, which was
part of a larger study on legitimacy undertaken in the course of a 4-month exchange program with the
University of Wisconsin/Madison Law School. The author can be contacted at [email protected].
*
1
Outi Korhonen, International Governance in Post-Conflict Situations, 14 LEIDEN J. INT’L L. 495, 526 (2001).
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administration in which international and local actors are contemporaneously
exercising social control through reference to different sources of authority
provides a vital key to understanding the tensions which may, but do not
necessarily, accompany a temporary international territorial administration.
B. A Transitional Administration in Transition
“No ethnic ties, no shared traditions, no voluntary act of political confidence unite the rulers and their subjects.”2
Following Security Council Resolution 1244 of 10 June 1999 and its first
implementing regulations, a plenary system of international administration has
emerged in the territory of Kosovo.3 The Resolution created the UN Interim
Administration Mission in Kosovo (UNMIK). Two years later, the UN promulgated
the Constitutional Framework for Self Government (CF), which established a
mechanism of dual-key governance in which competencies are successively
transferred from an international agent to local agents.4 This arrangement
ERNST FRAENKEL, MILITARY OCCUPATION AND THE RULE OF LAW: OCCUPATIONAL GOVERNMENT IN THE
RHINELAND, 1918-1923 205 (1944).
2
3 On the Authority of the Interim Administration, S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999)
(vests UNMIK with “all legislative authority” over the territory and people of Kosovo). Cf. UNMIK Reg.
1999/1, para. 1.1, U.N. Doc. UNMIK/REG/1999/1 (July 25, 1999) (effectively self-institutionalises all
public powers that would normally attributed to a state government. UNMIK remains composed of a
pillar structure, each reporting to the SRSG. Until 2005, it was divided into four major components; its
structure reflected the heavy dependence of the operation on the efforts and resources of various states
and international organisations. While two pillars remained with the UN (civil administration and
police/justice), the other pillars were distributed to the OSCE (institution building) and the EU
(economic reconstruction)). See also cf. Matthias Ruffert, The Administration of Kosovo and East Timor, 50
INT’L & COMP. L. Q. 477, 613 (2001); Andreas Zimmermann & Carsten Stahn, Yugoslav Territory, United
Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo, 70
NORDIC J. INT’L L. 423 (2001); Michael J. Matheson, United Nations Governance of Postconflict Societies, 95
AM. J. INT’L L. 76 (2001); Ralph Wilde, From Danzig to East Timor and Beyond: The Role of International
Territorial Administration, 95 AM. J. INT’L L. 583 (2001); Alexandros Yannis, The Concept of Suspended
Sovereignty in International Law, 13 EUR. J. INT’L L. 1037 (2002).
4 On a Constitutional Framework for Provisional Self-Government in Kosovo, UNMIK Reg. 2001/9, U.N.
Doc. UNMIK/REG/2001/9 (May 15, 2001) (CF divides all spheres of governmental authority into
powers that are to be transferred to the newly created local institutions (Chapter V of the CF) and
reserves others for the continued exercise by UNMIK (Chapter VIII). The latter mostly concern
sovereignty related matters such as external relations, the administration of state and public property
and enterprises, control over the civil registry database, railways and civil aviation, protection of
minority rights, public order and safety, defence, and the appointment and removal of judges and
prosecutors). Cf. Carsten Stahn, Constitution without a State? Kosovo under the United Nations
Constitutional Framework for Self-Government, 14 LEIDEN J. INT’L L. 531 (2001) (providing a concise study
on the constitutional history of Kosovo and the recent attempts to build political institutions).
2007]
Legitimacy and UN-Administration of Territory
41
constitutes a sui generis, loosely bounded political system in which policy is made
by both the UNMIK and the newly created Kosovo’s Provisional Institutions of
Self-Government (PISG). Throughout the institution-building sequence, the
international agent is vested with a decreasing measure of Organisationshoheit
(authority or competence to draw up a constitution) to choose a system of
government and to obtain means to enable the “state” to execute its functions. At
the same time, local institutions gradually assume competencies for a certain range
of issues and discharge municipal functions according to their autonomous sphere
of action.
In accordance with Strobe Talbott’s designation of Kosovo as a “ward of the international community,”5 the diverse set of competencies of emergent local institutions can be compared with the capabilities of a minor who grows into a certain
age. At the same time, the competencies of the guardian shrink in light of the increasing capacity of the ward. The local institutions’ competencies within their
autonomous sphere will, however, continue to be subject to the international
agent’s supervision. This model seeks to encourage pluralism in order to enhance
legitimacy and local ownership of measures undertaken during a democratic transition. While the dual key model presents a significant innovation in post-conflict
governance, fostering both short-term legitimacy and long-term democratisation,
the two actors might, at a particular point of the institution-building trajectory,
occupy opposing positions based on the pursuit of conflicting sets of interests, or
corporate intentions.6
Political transitionality provides the tableau against which the following discussion
on the sources of legitimacy can be projected. Given the ecumenical quality of the
notion of legitimacy, we assume that nothing is legitimate in itself but only in
relation to an audience. The object of legitimacy – a government, be it local or
mandated by the international community – raises a claim of legitimacy, and the
conditions for meeting it are dependent on an audience as a party to the
relationship. Applied to our investigation, we will have to carefully distinguish
5 Strobe Talbott, U.S. Deputy Sectretary of State, Keynote Address at the Aspen Institute, The Balkan
Question and the European Answer (August 25, 1999) (quoted by William Bain). William Bain, The
Political Theory of Trusteeship and the Twilight of International Equality, 17 INTERNATIONAL RELATIONS 59, 69
(2003).
6 The case of Kosovo’s privatisation process illustrates the dilemma of pursuing divergent interests:
While the provisional institutions of self-government (PISG) have, since 2002, pursued an intensive
campaign to kick-start the privatisation of public assets in Kosovo, the international agent has stalled the
process by its continued recourse to international law and the limits it imposes on UNMIK in its
fiduciary exercise of powers. See Bernhard Knoll, From Benchmarking to Final Status? Kosovo and the
Problem of an International Administration’s Open-Ended Mandate, 16 EUR. J. INT’L L. 637 (2005) (discussing
the aforementioned case of Kosovo’s privatisation process).
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between the discursive spheres in which various claims to legitimate government
are framed. Consider a line that frequently appears in our political vocabulary
when we, usually in a condescending manner, refer to a particular governmental
policy as “designed for local consumption.” We mean simply that internal or
domestic interests are pursued at the expense of international legitimacy. While
borderline cases exist, the discussion will, for heuristic purposes, treat notions of
international and domestic legitimacy as discrete discursive contexts in which
different strategies of legitimisation are pursued.7
I. International Legitimacy
First, we consider the international validation of UN governance of a territory. We
term this sphere international legitimacy because the UN addresses its claims of
legitimate governance to an international audience, particularly donor countries.8
As the sequence of institution-building unfolds, the Special Representative of the
UN Secretary-General (SRSG) – in whom the executive, legislative and judicial
powers are initially combined – relies on a comprehensive set of arguments to
justify the exercise of largely unchecked powers. His arguments appeal directly to
and articulate the shared values of the international community. They are largely
framed to convince the international public that its sundry actions are consistent
with the established best practices of good governance. The importance of those
legitimising strategies in the case of Kosovo’s international administration cannot
be overstated. UNMIK was not, like the UN Transitional Administration in East
Timor (UNTAET), legitimised by the obligations of trusteeship that applied to nonself-governing territories. Nor can its exercise of power be based on an international
treaty, sanctioned by the consent of the contracting parties, as in the case of Bosnia.
As Bain lucidly observes, UNMIK was created in the wake of a “controversial, if
not dubious, use of force that obtained retroactive assent from the Security Council
in form of resolution 1244.”9 Without international validation – which, one might
add, cannot be taken for granted – the task of UN territorial governance is fraught
with difficulty.
This categorisation is frequently employed. Cf. Ed Vulliamy, Farewell, Sarajevo, THE GUARDIAN,
November 2, 2005 (comment made by the former High Representative for Bosnia, Lord Jeremy
Ashdown: “I am formally accountable to the Steering Board of the [Peace Implementation Council]
every week… I have to have the capitals’ broad agreement with what I do. Sometimes, if I have 70% of
them behind me, I’ll go ahead with the decision… I am also responsible to the Bosnian people. If I pass a
decree that is refused, my authority is gone like morning dew”).
7
8 See Joel C. Beauvais, Benevolent Despotism: A Critique of U.N. State-building in East Timor, 33 N.Y.U. J.
INT’L L. & POL. 1101, 1106 and 1166 (2001) (makes reference to the UN Security Council and donor
countries as UNTAET’s primary constituencies).
WILLIAM BAIN, BETWEEN ANARCHY AND SOCIETY: TRUSTEESHIP AND THE OBLIGATIONS OF POWER 153
(2003).
9
2007]
Legitimacy and UN-Administration of Territory
43
International political scrutiny of an administrative organ operating in an
internationalised territory aims at nothing less than ensuring that its practices
comply with a particular system of good governance. For that reason, the
administrative organ is forced to employ strategies of justification and
legitimisation towards the international community. The absence of constitutional
limits to the exercise of international political power within such territories can, for
example, spill into the international domain and mobilise serious discontent among
the global political and diplomatic constituency. Failure to justify its coercive
measures presents a serious challenge to an international territorial
administration’s legitimacy.10 The legitimacy of an international territorial
administration in the eyes of a global audience naturally increases with the
international representativeness of such an administration (in terms of participating
states and the availability of lead-nation resources), along with the rate at which an
“exit strategy” is formulated and with the speed at which the devolution of
government power to local institutions takes place.11
II. Domestic legitimacy
Second, we consider the UN’s authority within the territory where it exercises the
function of government. We term this sphere domestic legitimacy. As a relational
concept, domestic legitimacy captures the properties of the performance of the
fiduciary bond in which an international agent is appointed ex lege to supervise a
formally constituted, locally based management structure operating with respect to
a particular territorial unit.12 As the UN conceives “good governance” as ersatz for
democratic legitimisation in an internationalised territory, its claim to legitimacy is
based on the exercise of its powers in a manner inviting societal trust. In the words
of Caplan, “the idea of international rule over foreign territory can be legitimate
10 See e.g., a report by the Council of Europe’s Parliamentary Assembly which, regarding the
continuation of supreme international authority in Bosnia, considered it “irreconcilable with democratic
principles that the HR should be able to take enforceable decisions without being accountable to them or
obliged to justify their validity and without there being a legal recourse” (Article 13 of Resolution 1384
of the CoE PA, 20th Sitting, 23 June 2004). See also Report by the CoE Political Affairs Committee,
Strengthening of Democratic Institutions in Bosnia and Herzegovina (Doc. 10196, 4 June 2004), §35. The
absence of legislative review and other defects of Kosovo’s legal system are discussed in Bernhard Knoll,
Beyond the Mission Civilisatrice: The Properties of a Normative Order within an Internationalized Territory’, 19
LEIDEN J. INT’L L. 275-304 (2006).
See David Harland, Legitimacy and Effectiveness in International Administration, 10 GLOBAL GOVERNANCE
15, 18 (2004) (presenting a similar argument); see also RICHARD CAPLAN, INTERNATIONAL GOVERNANCE
OF WAR-TORN TERRITORIES: RULE AND RECONSTRUCTION 34 (2005).
11
12
This definition of an international territorial administration is drawn from Wilde, supra note 3, at 585.
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only if that rule is exercised on behalf of, and for the benefit of, the foreign
population.”13 In this domestic sphere, the legitimacy of a UN territorial
governance mission thus depends upon its ability to incorporate the views of the
people’s representatives. Conversely, an international organisation that lacks
acceptable legitimated accounts of its activities is vulnerable to claims that it is
negligent and unnecessary.
The manner in which an international administration resorts to arguments
“legitimising” the exercise of imperium in an internationalised territory thus
depends on the function it is cast in: as a territorial government, an international
mission’s arguments possess a domestic dimension; and as an organ of the
international community, it is under pressure to justify its plenary administration
to an international audience. We have accordingly termed these two discrete
dimensions “domestic” and “international” legitimacy, with the former denoting an
attribution of the relationship between the international agent and the people
temporarily governed by it, and the latter indicating an attribution of the
relationship between the international organ and the international community.
By discussing legitimacy in both its domestic and international dimensions in
dyadic terms, we do not however intend to assume a neat separation between the
two realms of domestic and international politics. Such a separation is merely an
analytical device to contextualise the various claims to legitimate government.
Arguments advanced towards one audience reinforce claims made to the other;
they occasionally conflict with each other as well. For example, pragmatic appeals
to the local population to sustain more power cuts during a harsh winter may
debase lofty claims, made towards the international community, that the funds
utilised to stabilise the energy supply have been put to good use. Hollow platitudes
regarding the adequacy of discharge of a governmental duty, made to local
institutions, may signal the shirking of pragmatic exchanges with the international
community on how the UN administration itself can be subject to good governance
benchmarks. On the other hand, a boost in a UN mission’s domestic credibility (as
witnessed under the leadership of the former UNMIK SRSG, Jessen-Petersen)
facilitates its re-legitimisation in the international sphere.
C. The Pursuit of Domestic Legitimacy: Two Promises
An international authority’s construction of “legitimate rule” within the
administered entity is of a special quality. Ordinary logic will designate it as an
RICHARD CAPLAN, A NEW TRUSTEESHIP?: THE INTERNATIONAL ADMINISTRATION OF WAR-TORN
TERRITORIES 57-58 (Mats R. Berdal ed., 2002).
13
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Legitimacy and UN-Administration of Territory
45
agent whose short-term purpose is to solve problems associated with the
immediate aftermath of war: enormous social dislocation and human protection.
The special position of a trustee administration implies that it cannot draw
legitimacy from foundational myths, scientific doctrine, alleged providence or the
political will of a nationally constituted demos.14 This is, of course, a sociological
triviality. Yet it serves to illustrate the point that an international administration can
utilise other legitimising strategies that resemble those of national public
administrations. In its governorship role, a trustee’s ability to generate domestic
legitimacy hinges then, firstly, on the effective provision of public goods and,
secondly, on its compatibility with prevailing local ideology and cultural
background. Beyond traditional considerations of “output legitimacy” an
international administration bases its claim to exercise authority on two
argumentative “pillars.”
I. The Foundational Promise
As a first order legitimising strategy within an internationalised theatre, the
international agent relies on its primary competency to activate the latent subjective
approval of the people within the territory. In what we may term the foundational
promise of fiduciary administration, the international agent establishes and
sustains the identity and status of a particular polity qua polity. In the case of
Kosovo, the (international) drafters of the Constitutional Framework pursued such
foundational promise by positing that Kosovo would be an undivided territorial
unit under interim international administration – an “entity…which, with its
people, has unique historical, legal, cultural and linguistic attributes.”15 The
foundational promise inherent to an institution-building mandate is also visible in
its reconstitution of the collective, ideally across divisive ethnic and religious
lines.16 The expectations arising from the constitutional promise of temporary
protection and institution-building represent the primary source of UNMIK’s
domestic legitimacy, which depends on the extent of trust it maintains in pursuing
the interests of the thus constituted polity.
The following two examples illustrate these propositions. The exercise of fiduciary
functions of UNMIK have been subject to fierce local contestation as the UN
Adapted from Jens Steffek, The Legitimation of International Governance: A Discourse Approach, 9 EUR. J.
INT’L REL. 249, 271 (2003).
14
15
UNMIK/REG/2001/9, supra note 4, at §1.1 and §1.2 (emphasis added).
16 See The Secretary-General, Report of the Secretary-General, No Exit without Strategy: Security Council
Decision-Making and the Closure or Transition of UN Peacekeeping Operations, p. 2, U.N. Doc. S/2001/394
(April 20, 2001).
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responded ambiguously to a 2001 border demarcation agreement, concluded
between the Federal Republic of Yugoslavia (FRY) and Skopje, which concerned
Kosovo’s southern border with Macedonia (fYRoM).17 Through this agreement, the
holder of nominal sovereignty – the FRY – signed away a territory of 2,500 hectares
of pastures claimed by Kosovo residents. One year later, the agreement had severe
repercussions on Kosovo’s institutional structure. As UNMIK and KFOR continued
to state that the agreement was irrelevant,18 FRY’s President addressed a letter to
the UNSG in which he stressed that the border accord between the FRY and fYRoM
was reached “between two sovereign and independent countries, members of the
United Nations” and that it reaffirmed the existing border between the two
republics (Serbia and Macedonia) of the former Yugoslavia.19 This view eventually
was also adopted by SRSG Steiner, who announced that the agreement must be
respected.20 UNMIK’s astounding volte-face was necessitated by the Security
Council’s (erroneous) belief that the FRY had the authority to dispose of parts of
Kosovo territory.21
This decision had severe consequences for UNMIK’s ability to generate domestic
legitimacy as it openly demonstrated to the wider public that the administration
did not wholeheartedly advocate Kosovo’s interests on the international stage. It
instead became clear that, in its second identity as subsidiary organ of the UN,
UNMIK would have to pursue the legal interest of the organised international
community, directing it to respect the territorial integrity of the FRY. These
observations serve to highlight that the fiercest challenges to the political legitimacy
17 The agreement was signed on 23 February 2001 and promulgated by Serbia on 16 June 2001 following
its ratification by both countries’ parliaments.
18 http://www.unmikonline.org/press/2002/trans/tr210202.htm (UNMIK Spokesperson noted in a 21
February 2002 press brief that “it is not up to us to recognize the Agreement or not. We administer the
territory as it was defined by the 1244”).
Marcus Brand, Kosovo under International Administration: Statehood, in CONSTITUTIONALISM AND HUMAN
RIGHTS 143 (2002) (quoting President Kostunica) (dissertation on file with the University of Vienna).
19
20 Press Release, Security Council, Security Council Deplores Kosovo Assembly’s Resolution Concerning
Province’s ‘Territorial Integrity,’ U.N. Doc. SC/7413 (May 24, 2002) (strongly condemning subsequent
Resolution by the Kosovo Assembly on the Territorial Integrity of Kosovo, which was also declared void
by the SRSG).
21 See Bernhard Knoll, UN Imperium: Horizontal and Vertical Transfer of Effective Control and the Concept of
Residual Sovereignty in ‘Internationalised’ Territories, 7 AUSTRIAN REV. INT’L & EUR. L. 3 (2002) (It is more
than questionable whether Serbia has ever been in a position to exercise aspects of foreign relations with
regard to territorial dispositions during the period of Kosovo’s protected status. By signing away land to
fYRoM during UNMIK’s interim imperium over the territory, Serbia failed to recognise the United
Nations jurisdiction therein. Such interpretation would see both fYRoM and Serbia in breach with their
obligations under the UN Charter).
2007]
Legitimacy and UN-Administration of Territory
47
of an international agent’s governorship emerge as the agent is perceived to breach
the trust, the cornerstone of the international intervention project.
On the flipside, domestic legitimacy can be bolstered by active performance of the
fiduciary capacity, within which UNMIK acts as a territorial government to further
the interests of the entity under its temporary protection. One such example
involved the provisional release of former Prime Minister of Kosovo from the
custody of the ICTY after protracted proceedings, upon decision of the Trial
Chamber in June 2005.22 UNMIK, in a confidential written submission and during
the course of oral pleadings before the Chamber, decided to offer guarantees to the
ICTY that it was in a position to secure the arrest of the accused, should he violate
the terms of his provisional release. The Trial Chamber noted that “the Acccused’s
former position as Prime Minister implicates that guarantees would carry less
weight were they to be provided by his government, whereas the situation in this
case fundamentally differs in that UNMIK is an international agency headed by the
United Nations.”23 Strengthening its domestic legitimacy by that same token,
UNMIK fulfilled the duties stemming from the performance of its fiduciary bond
vis-à-vis the territory.
II. Devolution of Power and the Democratic Moment
An international agent’s governmental decisions will be empirically accepted to the
degree that its “foreign rule” is perceived to set in motion constitutional processes
that fill the initial administrative vacuum and later shape the political structure’s
transition while nurturing participation. Domestic legitimacy can thus be defined
as a property of international territorial governance that is measured, firstly, by the
extent to which it creates a thick weave of enabling structures to set local
institutions on a sustainable path, and secondly, by the degree and pace it devolves
authority in a sequence of instituted transfer to local actors under a “participatory
model.”24 Hence, the second strategy in pursuit of domestic legitimacy builds upon
22 Both the Decision on Ramush Haradinaj’s Motion for Provisional Release (Case No. It-04-84-Pt, Trial
Chamber II, (June 6, 2005) and the subsequent permission to engage in political activities (Case No. IT04-84-AR65.1) (March 10, 2006) have infuriated not only Serbia’s government but also the ICTY
Prosecutor. Statement, Statement to the Security Council, U.N. Doc. AN/MOW/1085e (June 7, 2006)
(alleged that UNMIK “refuses to co-operate fully with the Tribunal”).
Id.
Benevolent Despotism, supra note 8, at 1129-1134 (Beauvais notes, the shift from the factional
representation in East Timor’s National Consultative Council to the expanded representation in the East
Timorese National Council led to a considerable increase in the legitimacy of UNTAET).
23
24
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an international administration’s promise to transfer competencies to local
stakeholders in order to vest them with a sense of ownership.
The international agent enters into a power-sharing agreement with the local
institutions precisely with a view to establishing the latter’s functional limitations
with respect to the legitimate exercise of local administration and governance. As
Chesterman suggests, the transfer of power, typically mediated through an
election, is the central purpose of any transitional administration.25 The
democratisation of a polity administered by the international community serves not
only as an organisational arrangement vesting local institutions with the power of
legitimacy, but also, before such vestment, as a legitimisation principle to which the
international organ has recourse. The international agent’s reliance on democratic
reform is thus a second-order argument. Its normative essence emphasises the
“constitutionalisation” – i.e., the entrenchment within the municipal constitutional
order – of the power of local political institutions which, reaping the benefits of
popular sovereignty, operate under the terms set for reaching legitimate decisions.
According to this second-order legitimising strategy, the international agent itself
has brought about the institutions whose legitimacy it has not only assisted to
activate but indeed created: “The more powers conferred on local representatives,
the closer power is to the people and thus the more legitimate the nature of the
administration.”26 As a corollary, the democratic moment endows the local agent
(i.e. a local political institution) with confidence to represent the perspectives of the
new political collective. This emerging confidence can be well demonstrated by
pointing at the ongoing discussions about the transfer of competencies from the
international administration to local institutions in Kosovo. In a conversation with
the former Principal Deputy UNMIK SRSG Brayshaw, the former Speaker of the
Kosovo Assembly, Nexhat Daci, is reported to have said: “UNMIK cannot set the
priorities for the Kosovo Assembly. The MPs are responsible before their electorate.
They know what their priorities are.”27This is an interesting claim. While the
language of law and accountability, introduced by the international agent, imbues
the local institutions with legitimacy and authority, the latter relies on the criterion
SIMON CHESTERMAN, YOU, THE PEOPLE: THE UNITED NATIONS, TRANSITIONAL ADMINISTRATION, AND
STATE-BUILDING §§ 223 (2004). See also NOAH FELDMAN, WHAT WE OWE IRAQ: WAR AND THE ETHICS OF
NATION BUILDING 98 (2004).
25
UNTAET SRSG SERGIO VIEIRA DE MELLO, HOW NOT TO RUN A COUNTRY: LESSONS FOR THE UN FROM
KOSOVO AND EAST TIMOR 4 (2000) (unpublished manuscript).
26
27 KOHA DITORE,
June 24, 2004; see also his more recent remarks that “Kosovo institutions should
express the political will of Kosovo citizens. It is the obligation of the institutions to convey this will in a
democratic way” (ZËRI, November 16, 2005, 3).
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Legitimacy and UN-Administration of Territory
49
of popular legitimacy in order to challenge international tutelage. The texture of
legitimacy is, in this reading, fungible; its transfer under an asymmetrical “dualkey” constitutional arrangement can be accompanied by a struggle to appropriate
powers in accordance with different sets of interests pursued by international and
local actors. While a local institution wielding a measure of political authority will
initially pursue a strategy of building domestic legitimacy (including developing
mechanisms for aggregating interests, organising political agendas, etc.), the
challenge for an international institution-building mission consists of ensuring that
international and local institutional activity do not compete for legitimacy.
D. Institutional Contestation
In an environment in which the international administration claims to have created
the conditions under which free and fair elections can be conducted and local
institutions are being established, a curious phenomenon can be observed. The
international agent can be seen making a second order argument in order to resist
the rapid transfer of competencies. On the one hand, the argument appears
plausible: after all, the international agent is mandated to first bolster the
democratic credentials of such local institutions and increase the capacity of a
troubled society to act collectively before it devolves itself of power.
Gradually, however, the international administrations’ claim to power becomes less
plausible as the local agent becomes more stable and representative. Any argument
the international agent makes in opposition to the further transfer of competencies
to local actors will sound increasingly hollow as the local political institutions assert
their democratic credentials. In such a scenario (which is playing out in the ongoing
battle between respective spheres of competency of the PISG and UNMIK), the
internal power sharing agreement itself is likely to be contested.
From what can be gleaned from the past seven years of international institutionbuilding in Kosovo, local institutions have built effective methods of to resist
international authority. At times, the elected leaders have borrowed from the
rational-legal language of the international administration and argued that
continuing discharge of UNMIK’s remaining powers would contravene its
professed values. In fact, local institutions have mounted increasing challenges that
are primarily framed in the aspirational idiom of Western constitutionalism.
In July 2004, attentive observers of Kosovo’s domestic politics would have noted
that a process of institutional contestation of legitimacy was well under way. In
autumn 2003, the Kosovo Assembly had endorsed an initiative to establish a
working group charged with proposing amendments to the Constitutional
Framework (CF). It met several times throughout the following months, and
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eventually rejected an offer from UNMIK to form a joint working group in order to
identify amendable provisions.28 The Working Group’s proposal29 was approved by
the Kosovo Assembly, recommending amendments to the CF that would, in
addition to infringing UN Security Council Resolution 1244, also negatively affect
the interests of minority communities. While UNMIK concluded somewhat soberly
that a “comprehensive review of the Constitutional Framework is outside the
competence of the Assembly,”30 an OSCE Report explained more sensibly that
such a seemingly illogical and desperate initiative may reveal the depth of
frustration within the PISG due to the perceived slow rate of transfer of powers to
local institutions... Supporters of the initiative expected that either UNMIK would
ultimately make some concessions, or, more likely, it would appear stiff and
bureaucratic, the PISG thereby having won a “moral victory” in the eyes of the
public, at UNMIK’s expense.31
Another report by this component UNMIK-pillar even surmised that
the SRSG is in a strong position vis-à-vis the Assembly as he retains the final
decision-making authority in this matter and may selectively approve amendments
proposed by the Assembly or reject the entire package.32
In this instance, a local institution, confident that it would be in a position to take
over new competencies from the international administration, challenged the
international agent’s continuing claim to effective control of key areas, accusing it
of implementing “foreign rule” that would increasingly alienate the international
28 See OSCE Mission in Kosovo, Background Report On the Assembly’s Proposal of Amendments to the
Constitutional Framework (July 12, 2004) (providing background to the amendment process).
29 Working Group on Preparing Proposals to Amend and Complete the Constitutional Framework,
Proposal of Amendments and Supplements to the Constitutional Framework (May 24, 2004) (proposed
amendments foresaw new competencies for the PISG in a number of areas including international
relations, public security, justice and judicial review, energy, and local government. Extensive changes to
the right to hold referenda on issues of “particular importance to the people of Kosovo” were proposed
as well, all of which would have encroached upon UNMIK’s reserved competencies). See also the Kosovo
daily ZËRI, May 27, 2004, at 1 and 4-5.
30 Press Release, UNMIK, UNMIK’s Statement on Today’s Session of the Kosovo Assembly, U.N. Doc.
UNMIK/PR/1202 (July 8, 2004).
31 See OSCE Mission in Kosovo (OMIK), Spot Report: On the Monitoring of the Assembly of Kosovo 3 (July 7,
2004), at 3.
OMIK, Spot Report on the Assembly of Kosovo’s Adoption of Proposed Amendments to the Constitutional
Framework 2 (July 13, 2004).
32
2007]
Legitimacy and UN-Administration of Territory
51
agent from the interests and opinions of the “people” that it, the local agent,
represents as a structured social group.
I. The Two Fronts of the Struggle over Domestic Legitimacy
The progressive erosion of an international mission’s authority can hence be
explained in the following way: the internal legitimacy of an international agent –
the extent to which its rule is accepted by the local polity as just and worthy of
recognition33 – decreases when the local actor refuses to comply with a rule that it
perceives as inconsistent with its interests. An international agent’s domestic
legitimacy weakens when its rule is perceived as obstructing the realisation of selfgovernment. This is the process of de-legitimisation; a governance system
gradually loses its capacity to engender and maintain the belief that the existing
political institutions are the most appropriate ones for a particular society.
The substantive struggle between local institutions and its international guardians
takes place on two cognitive fronts. On the one side, local institutions perceive it as
a conflict over the degree of local participation (devolution). Conversely, in the
minds of international officials, the conflict looms over the quality of local
participation (standards). On this second front, local institutions will find further
grounds for disclaiming the authority of an international agent, while the latter
endeavours to evaluate the former’s governance performance against a set of
“benchmarks,” without subjecting the performance of its own governance
apparatus to any scrutiny. The international agent, convinced that the local political
institutions are not yet ready to meet the standards they are charged to implement,
will tend to de-legitimise the latter in the eyes of the “people” who compose the
electorate. By portraying the local agent as overly corrupt and incapable of
conforming to the benchmark standard for self-government, an international
authority communicates that the institutional resources for democratic
authorisation are lacking.
In the process, the international agent will, however, contribute to its own delegitimisation for, as the article demonstrated, it also relies on the second-order
argument of democratic institution-building. Well into the institution-building
exercise and the “civilising mission” it is bound to pursue, UNMIK (as well as the
High Representative for Bosnia and Herzegovina) tended to increase its vigilance
against popular aspects of legitimacy and fell back upon more coercive means. Both
in Kosovo and BiH, the international administrations were accordingly inclined to
See JÜRGEN HABERMAS, COMMUNICATION AND THE EVOLUTION OF SOCIETY 178 (T. McCarthy trans.,
1978).
33
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“perennialise” their stronghold over “reserved competencies.”
They have done so by asserting the conditions necessary for effective control by
local agents are not met at a given point in time. This argument is incoherent as it
undermines the normative foundation for the legitimate rule by the international
agent. The very purpose of the initial concentration of plenary authority within the
international institutions is, it must be recalled, the mobilisation of institutional
resources for democratic authorisation for government and the rapid establishment
of a local architecture that is capable of assuming competencies in a sequence of
transferences. Temporary derogation from the participatory paradigm to manage
emergencies notwithstanding, the maintenance of, or reversion to, the coercive
model is nothing more than a contradiction to the initial mandate.
II. Negative Externalities
These processes of reciprocal de-legitimisation between the international agent and
local actors not only impose heavy additional enforcement costs on the controllers.
They cause confusion on the part of a population over which institution, if any, is
the right one to make authoritative declarations and may also lead to the effective
diffusion of what Raz termed “normative power.”34 Where the realisation of
legitimate domestic political order in one jurisdiction threatens its realisation in
others, conflict is more likely. Such contestation of legitimacy results in negative
externalities and threatens to derail the institution-building sequence.
As a consequence, the international agent is more likely to be tempted to abandon a
“consent-based” dual-key model of authority that had placed the local institutions
in a partnership role. It may adopt a coercive model which permits it to regain
centralised control in order to make rapid decisions and to reduce the disruptions
that it perceives to be caused by local actors. By basing its authority more and more
on “international legitimacy,” an international territorial administration
perennialises its position into what some authors have termed “enlightened
despotism” and formulates policies that are not perceived as providing gains for
society as a whole.
At its best, such a return to centralised control, which effectively rolls back the
process through which local stakeholders have gained a voice in decision-making,
helps to minimise the short-term risk of open political conflict. At worst, the
effective reversal of building local “ownership” undermines the capacity of local
34
JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY §§ 16 (1979).
2007]
Legitimacy and UN-Administration of Territory
53
institutions to develop legitimate mechanisms to resolve internal conflict.35 Indeed,
the international community should have to assume some responsibility for setting
in motion a destabilising political dynamic that rendered a power-sharing
agreement in Kosovo subject to local contestation.
On the security side, it has proven to be extremely difficult to call on reluctant
players of the prospective democratic (and multi-ethnic) game to renounce
alternatives. Given the uncertain future status of Kosovo in international law – its
reincorporation into Serbia’s jurisdiction or independence – the challenge for an
interim administration has been to compel local institutions to work within
uncertain parameters and to build a presumptive legitimacy. This challenge has
been met only to a certain extent. The dismal economic situation in Kosovo after
seven years of international administration documents the failure of a system of
power that became chronically unable to meet the interests of the people under its
tutelage.
E. Conclusion
International agents and local institutions derive their respective legitimacy to
exercise public power from different sources and work to satisfy different
“constituencies.” While the international agent relies on a dual set of arguments
legitimising its authority, local institutions rely on the mandate of the electorate to
the same extent that they base their claim to legitimate authority on the telos of the
participatory model that the international agent promises to implement. This article
has stressed that the struggle over the conferral or denial of legitimacy takes place
within the context of the devolution of public authority from international to local
institutions and described an institutional dynamic that breeds conflicts over the
appropriation of political capital.
It is, however, important at this point to remind ourselves that phenomena of
reciprocal de-legitimisation of public authority are not path-dependent. They are
not inevitable, they do not occur as a by-line of the methodology of
internationalisation of territory, as can be easily shown by the overlapping,
contemporaneous and mutually reinforcing activities of the UN Council for
Namibia and the South West Africa People’s Organisation (SWAPO) as “sole and
authentic” representative of the Namibian people during the 1970’s. Post-conflict
administrations, like occupation authorities, do not get to choose between the two
35 See Gerald Knaus & Felix Martin, Travails of the European Raj: Lessons from Bosnia and Herzegovina, 14
JOURNAL OF DEMOCRACY 60, 66-67 (2003). Nicholas Wood, Nation-Building Effort in Kosovo is at a
Crossroads, N. Y. TIMES, October 10, 2005 (As the former Principal Deputy SRSG Rossin admitted, “the
development of their institutions is somewhat retarded by our continuing role”).
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functions of international and local government. Rather, their reconciliation and
integration and the management of the anomalous legitimacy cycle should be seen
as the primary problématique of state building under international tutelage.
To summarise, the exercise of dual functions by an international administration –
governor and state-builder – yields negative externalities only when it is charged
with pursuing objectives perceived to be in possible contradiction with each other. By
exposing the inherent constraints faced by an international agent, this analysis
should help policymakers understand why such challenges to political authority
arise. Under the constraints imposed by an “open-ended” deployment mandate, in
which the final status of a UN-administered territory remains contested, we should
be able to predict negative externalities in the form of a gradual erosion of political
authority.
As Weber noted, “the basis of every authority, and correspondingly of every kind
of willingness to obey, … is a belief by virtue of which persons exercising authority
are lent prestige.”36 His observation that the stability and effectiveness of a political
order of domination depends on its recognition as legitimate is equally applicable
to an institution-building environment. The “crisis of legitimacy” – understood as
the loss of public confidence and the concomitant loss of normative power held by
institutions – should ideally prompt the United Nations to search for solutions that
bridge the gap between normative ideal and observable reality. Incidentally, these
propositions could not be further from the ones contained in the 2003 Handbook on
UN Multidimensional Peacekeeping Operations which directs SRSGs to “be sensitive to
any identification with partisan positions.”37 The Handbook thus clearly prioritises
the pursuit of the international community interest over the territorial interest. One
consideration that underlies these conclusions is therefore whether the United
Nations is really uniquely positioned to assume the role of interim government,
given that UN’s Department of Peace-Keeping Operations’ top management
priority – namely to ensure that a state-building project is conceptualised as a
peace-keeping operation with a strong emphasis on UN governorship through the
SRSG – is at odds with an international mission’s demand for legitimacy on the
local level. As correctly identified in the Brahimi Report, the institutional treatment
of complex governance missions as peacekeeping operations with an ancillary
civilian governance function raises the question of “whether the United Nations
should be in this business all,” and if so, which body should be charged with the
MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETATIVE SOCIOLOGY 263 (G. Roth and C.
Wittich ed., 1978).
36
37
UN DPKO Best Practices Unit, December 2003, at 21.
2007]
Legitimacy and UN-Administration of Territory
55
transitional administration of territories.38
To maintain its domestic legitimacy, an administration that assumes the
governance of territory for an indefinite period of time cannot merely be the
product of a international diplomatic leadership, it must also resonate with the
inhabitants under its guardianship. As territorial government, the UN must
consistently rely upon the participatory model and thus on the co-operation of the
wider public in effectuating its purposes. The reception of such socialisation
mechanisms – the extent to which an international organisation actually manages to
implement certain ideational standards and normative underpinnings to the
community under its tutelage – is crucial. Since an international territorial authority
cannot have recourse to the normative power of a plebiscite mandate, the
continuation of legitimate rule within the territory is predicated upon its ability to
exercise power on behalf, and in the interest, of the polity it administers in a
transitional setting.
Local challenges to the legitimacy of international political authority take different
forms and shapes. They adopt the language of the street, as they do when UNMIK’s
headquarter is besieged by protesters. They might arise in in-person confrontations
in the parliamentary assembly or take the more civilised form of “exchange of
letters.” A successful trustee will be expected to manage the anomalous phenomena
of legitimacy, rather than being forced into undignified retreat when the local
population becomes unwilling to tolerate its continued supremacy. The
extraordinary “legitimacy cycle” in Kosovo relates back to the inherent weakness of
an international mission’s mandate: an “open-ended” deployment setting that
portends the struggle over political capital which, in turn, unsettles the transfer of
legitimacy to an extent that the implementation of an institution-building mandate
might be thrown into jeopardy.
As Caron observes, perceptions of an international institution’s illegitimacy will
arise when the expectations generated by its promises diverge greatly from what
the institutions can actually deliver.39 The core question an international territorial
administration has to face concerns the issue of whether the paternalistic impulse
(which runs deep in an internationalisation project) is based on an imperative of
“strategic liberalisation” and whether it is justifiable in terms of the prevalent beliefs
and values held in the target society. As evidenced by the case of Kosovo under
38 Report of the Panel on United Nations Peace Operations, U.N. Doc. A/55/305, S2000/809, reprinted in 39
ILM 1432 (2000), at §78.
39 David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AM. J. INT’L L. 552,
559-561 (1993).
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UNMIK rule, justifiability is certainly enhanced when an international
administration is seen to act in consistency with, and perform, what this article has
termed the territorial interests of the entity under its tutelage. Simply put, when an
international administration behaves as ordinary government.
ARTICLES
SPECIAL ISSUE – WHAT FUTURE FOR KOSOVO ?
Self-determination as a Challenge to the Legitimacy of
Humanitarian Interventions: The Case of Kosovo
By Srdjan Cvijic*
A. Overview
The fall of the Berlin Wall and the end of the Cold War were greeted by many as an
important step in the unstoppable development of human civilization. Francis
Fukuyama even announced, in his celebrated essay of the same name, the “end of
history” and the triumph of the liberal democratic model, which, according to him,
was soon to become the most dominant, if not the only, form of organized human
community.1
The hope that the United Nations and its “constitutional” system would play a
crucial role in the solidification of the new liberal world order was reinforced by the
joint involvement of the United Nations Security Council (UNSC) and the United
States-led coalition in response to the 1990 Iraqi invasion of Kuwait.2 The UNSC
* Srdjan Cvijic is an expert in democratisation and human rights at the Stability Pact for South Eastern
Europe. He holds a PhD from the Department of Law of the European University Institute Florence
(Italy). The views expressed in this article are his own and do not represent the views of the Stability
Pact. I would like to express my gratitude to Bernhard Knoll, Euan McDonald and Ryan Schroeder
whose critique and suggestions greatly contributed to the finalization of this article. Email:
[email protected].
1 "What we may be witnessing is not just the end of the Cold War, or the passing of a particular period of
post-war history, but the end of history as such: that is, the end point of mankind's ideological evolution
and the universalisation of Western liberal democracy as the final form of human government." See Francis Fukuyama, The
End of History?, THE NATIONAL INTEREST (1989). For a remarkable critique of Fukuyama’s thesis, see JACQUES DERRIDA, SPECTRES OF MARX - THE STATE OF THE DEBT,
THE WORK OF MOURNING, AND THE NEW INTERNATIONAL (1994).
2 The UNSC, acting under Articles 39 and 40 of the Chapter VII of the Charter of the United Nations (hereinafter the Charter), reacted swiftly, passing Resolutions 660
. .
2,
6, 1990). Resolution 661 determined that Iraq had failed to comply with paragraph 2 of Resolution 660 demanding its immediate and
and 661, which condemned the invasion, demanded an immediate withdrawal of Iraqi troops and placed economic sanctions on Iraq. See S C Res. 660 (August
) . .
1990 ; S C Res. 661 (August
unconditional withdrawal from Kuwait’s territory, and as a consequence imposed economic sanctions on Iraq. Unyielding, Iraq ignored a long series of UN Security
. .
Council and Arab League resolutions related to the conflict. One of the most important was UNSC Resolution 678 (S C Res. 678 (November
29, 1990)), passed under
Chapter VII of the Charter, giving Iraq a withdrawal deadline of 15 January 1991 and authorizing member states to use “all necessary means to uphold and implement
Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area.” As a result of Iraq’s failure to comply with the UNSC
conditions, a US led coalition launched a massive air campaign codenamed Operation Desert Storm, which was followed by a ground offensive (Operation Desert
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role in the so-called first Gulf War presented a textbook example of the application
of the Charter’s normative framework for the protection of territorial integrity and
sovereignty of a country and the use of enforcement measures under Article VII of
the Charter.
In the 1990s, the belief in the inexorable advent of the global liberal democratic
order and the gradual disappearance of the non-democratic regimes was to fade in
light of an increasingly anarchic world arena, the rise in the number of interethnic
wars, the emergence of failed states, and so on. In a similar manner, the semblance
of the triumph of international law in the aftermath of the first Gulf War and the
appearance of a unified and vigorous UNSC able to protect international peace and
security were to be shattered by a sequence of crises in which the use or threat of
the veto power rendered the Council increasingly passive. After the end of the first
Gulf War, a series of international events unfolded in such a manner as to bring
about an important change in international relations, and arguably in public
international law. As a consequence of the break-up of the Soviet Union in 1991, the
U.S. and its NATO allies became the dominant global military, political and
economic force, with the ability to significantly impact the interpretation of the
normative framework regulating world affairs.
The dispute over the legality of the no-fly zones (NFZ) in Iraq provided the legal
contours of what was later to be referred to as a doctrine of humanitarian
intervention.3 These were characterized by the unilateral4 interpretation of UNSC
Resolutions and the use of force bypassing the UNSC altogether. These practices
continued in the case of Iraq5, and in the 1998 bombing of Afghanistan and Sudan
in Operation Infinite Reach.6 Humanitarian intervention against the FRY in 1999, and
. .
Sabre), finally resulting in Iraq’s military defeat and withdrawal from Kuwait. S C Res. 686 (March
2, 1991) and S.C. Res. 687 (April 3, 1991) regulated the
aftermath of the conflict. Parallel to these military operations, the coalition conducted Operation Desert Shield aimed at defending Saudi Arabia from Iraqi invasion.
3 The no-fly zones (hereinafter NFZs) were proclaimed by the United States, United Kingdom and France (the last of these later withdrew from the operation) after the
Gulf War of 1991 within the framework of Operation Provide Comfort, aimed at protecting the Kurds in the north and Shiite Muslims in the south against the
repression of Saddam Hussein’s regime. While some argued in favour of the legality of such operations, others criticized the view that Resolution 688 gave the US, UK
and France implied authorization to militarily enforce the NFZ, claiming that the Resolution was not passed under Chapter VII and consequently that it did not
authorize the use of force. See
the following for a view opposing the legality of the established NFZs: Robert Dreyfuss, Persian Gulf-or Tonkin Gulf? Illegal no13 THE AMERICAN PROSPECT (2002); Christine Gray, From Unity to Polarization: International Law and the Use of Force against Iraq, 13
fly zones could be war’s trip wire,
)
EJIL (2002 .
4 One can distinguish two types of unilateral acts: individual unilateral acts that express the will of only one subject of international law, or collective unilateral acts
where a single group of subjects acts collectively. See Pierre-Marie Dupuy, The Place and Role of Unilateralism in Contemporary International Law,
11 EJIL 20, 19-29
(2000).
5 For example, Operation Desert Fox in 1998, and other instances of aerial raids of Iraq within the period 1991-2002.
6 Retaliatory attacks for the bombings of US embassies in Kenya and Tanzania against the alleged facilities of the perpetrators of the terrorist attacks and their support
networks.
2007]
59
Self-determination as a Challenge
the circumvention of the UNSC that it entailed, represents a further challenge to the
entrenched understanding of peremptory norms of international law.7 The NATO
military intervention of the FRY in 1999 temporarily suspended Serbian
sovereignty in Kosovo. The legal framework of this suspension was UNSC
Resolution 1244 (1999), which gave a Chapter VII mandate to the international
civilian administration and NATO-led military force.
Today, seven years after the NATO intervention against the FRY and Slobodan
Milosevic’s regime, Kosovo is run by an UN-mandated international administration
still formally regulated by UNSC Resolution 1244 and related documents.
Currently, Serbia and the representatives of the Provisional Institutions of Self
Government of the Kosovo Albanians are engaged in the UN-led negotiations on
the future status of the province. The positions of the two sides seem irreconcilable.
While the Kosovo Albanians do not seem ready to accept any solution other than
full independence of the province from Serbia, the Serbian negotiating team has
offered the formula “more than autonomy, less than independence,” which grants
“substantial autonomy” to the province but refuses to accept the secession of this
part of its territory.8 The violent riots against minorities in the province on 17
March 2004 suggest there is much to fear for minority groups in an independent
Kosovo.9 Some have argued that the reason for the poor political and economic
situation10 in the province lies in the prolongation of the status quo and that the only
way to resolve the situation is for the US and the EU to impose independence on
the Serbian side, preferably through a UNSC Resolution:
[d]esirably, to give it complete legal as well as political effect, the Accord would
also be endorsed by the UN Security Council. Kosovo's de jure sovereignty, if not
achieved by Serbian agreement or Security Council resolution, should be
7 Whereas NATO claimed legal justification for these operations in Article 51 of the Charter, as in the later cases of the 2001 war in Afghanistan after the 9/11 terrorist
attacks on the US and arguably for the 2003 second Gulf war, the justification for the 1999 war against the Federal Republic of Yugoslavia (hereinafter FRY) was
grounded upon the doctrine of humanitarian interventions.
See The Attorney General Lord Goldsmith, The Goldsmith memo, (March
7,
)
2003 ,
,
http://tomjoad.org/goldsmithmemo.pdf for an overview of possible legal justifications for the aforementioned actions and for a factual assessment of their points in
.
common and differences
8 The Serbian Government has adopted a decision to add its stance on Kosovo to the new Serbian Constitution. According to the decision, the draft of the new Serbian
constitution will grant Kosovo in its preamble “a substantial autonomy” but it will unambiguously assert that Kosovo remains under the sovereignty of the Republic of
5.
Serbia. See http://www.b92.net/eng/news/politicsarticle.php?yyyy=2006&mm=09&dd=14&nav_category=92&nav_id =36 8
9 See Claude Cahn in this symposium for an account of the continuing violence against Roma in Kosovo.
The
World
Bank
Kosovo
Country
Brief
(2006),
http://web.worldbank.org/
WBSITE/EXTERNAL/COUNTRIES/ECAEXT/KOSOVOEXTN/0,,contentMDK:20629286~pagePK:1411
37~piPK:141127~theSitePK:297770,00.html.
10
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recognized by the whole international community, or at least such of its member
states (including the US and EU members) as are prepared to do so.11
This paper disagrees with this position and will argue that it is impossible to decide
on the legality of the possible self-determination of Kosovo without firmly linking
this question to the debate on the nature and legality of the 1999 humanitarian
intervention. The UN-mediated negotiating process on the future status of this
southern Serbian province, as well as the legal origin of the UN-mandated
administration in Kosovo (UNMIK), represent a continuation of the original
military and political involvement of NATO and the entire international
community six years ago.
This paper will argue that the doctrine of humanitarian intervention, if carried out
without the mandate of the UNSC, remains illegal under public international law.
However, such action can aspire over time to become legal – provided that it does
not go beyond its original limited scope (i.e. to prevent humanitarian catastrophe
within a sovereign state). In this way, the imposition of self-determination of
Kosovo on Serbia by the international community, by bypassing the UNSC, in the
case of a potential Russian or Chinese veto, will represent not only a revolutionary
challenge to established fundamental international norms, but also de-legitimize
the original intervention, and, more importantly, compromise the future legal and
practical development of the doctrine of humanitarian intervention. Such a political
and legal development would be a radical departure from the slow evolutionary
adaptation of international law to the new geopolitical situation, and amount to a
fundamental shift in the post-WWII order that none of the major international
players involved in the negotiating process on the future status of Kosovo
(including the US and NATO) desires.12
This article does not preclude, however, the possibility of the permanent members
of the UNSC (in a situation in which Russia and China do not use their veto power)
11 International Crisis Group, Kosovo: Toward Final Status, Europe Report 161 (January
24, 2005).
12 Rosemary DiCarlo, US Deputy Assistant Secretary for Europe and Eurasian Affairs, in an interview with the Russian Kommersant daily (18th January 2006), sketched
the US position on the future status of Kosovo: “We believe that the situation in Kosovo and Kosovo itself are a unique phenomenon.” She also added that the example
of Kosovo (implying possible independence without Serbia’s agreement) is not to be used as a precedent for other areas in the World. Vladimir Putin, the President of
the Russian Federation, said during his 31 January 2006 press conference broadcasted live on Russian state television that there is a need for "universal principles" to
settle "frozen" conflicts such as the one in Kosovo or those in Abkhazia and South Ossetia: “We need common principles to find a fair solution to these problems for the
benefit of all people living in conflict-stricken territories.... If people believe that Kosovo can be granted full independence, why then should we deny it to Abkhazia
and South Ossetia? I am not speaking about how Russia will act. However, we know that Turkey, for instance, has recognized the Republic of Northern Cyprus…I do
not want to say that Russia will immediately recognize Abkhazia and South Ossetia as independent states, but such precedent does exist.” See http://www.rferl.org.
The Russian President also announced a possibility of vetoing any eventual decision by the UNSC recognizing the independence of Kosovo. See
with Vladimir Putin, THE FINANCIAL TIMES, September 10, 2005, http://www.ft.com/cms/s/76e205b2-40e5-11db-827f-0000779e2340.html.
Interview
2007]
Self-determination as a Challenge
61
reaching a unified position favourable to the future independence of Kosovo.13
Since a legal interpretation granting the UNSC the right to trump the territorial
integrity of a state is ambiguous due to the fact that such a situation has never
occurred outside of the context of decolonization, one cannot forget that the very
ethos of ‘pouvoir constituant’ of the post-WWII international legal order was heavily
marked by such an example (i.e. the allied partition of Germany). Should the de
facto or de jure independence of Kosovo be recognized by the entire UNSC, Serbia
would probably remain among the few states (if not the only one) that would still
hold Kosovo to be an integral part of its territory. Nevertheless, this paper examines
the scenario in which one or more of the permanent members of the UNSC decide
to use their veto power against the imposition of independence for Kosovo against
the Republic of Serbia, where Serbia refuses to give its explicit consent to such an
outcome.
In the first section, this article analyses the legality of the doctrine of humanitarian
intervention, concentrating on the case of Kosovo and FRY in 1999. It will then link
this debate to the discussion on the legality of the independence of Kosovo without
the consent of Serbia and without a UNSC decision, including a very brief analysis
of the pro-independence legal arguments. Finally, it will suggest an alternative
approach to the Kosovo future status negotiations, attempting to contextualize the
entire process in the context of an evolutionary vs. revolutionary adaptation of
international law to the post-Cold War geopolitical realities.
B. Humanitarian Intervention and Public International Law
Before debating the legality of humanitarian intervention without Security Council
backing in general, and the legal status of the NATO intervention in FRY in
particular, it is necessary to offer a working definition of the phenomenon. Sean
Murphy defines humanitarian intervention as the
…threat or use of force by a state, group of states, or international organization
primarily for the purpose of protecting the nationals of the target state from
widespread deprivations of internationally recognized human rights.14
13 Although the President of the Russian Federation announced that Russia would use its veto should other permanent members of the UNSC move to recognize the
independence of Kosovo, the experience of the 1990s ex-Yugoslav wars shows that, at the end of the day, Russia will, albeit grudgingly, align with the position of the
West. Whether this will reoccur in the case of the independence of Kosovo remains to be seen. Arguably, Russia’s negotiating position vis-à-vis the US and the rest of
NATO is more powerful today than it was in the 1990s.
)
14 SEAN D. MURPHY, HUMANITARIAN INTERVENTION: UNITED STATES IN AN EVOLVING WORLD ORDER, 11-12 (1996 .
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While a rigid interpretation of post-WWII international law would argue against
humanitarian intervention by invoking Article 2(7) of the Charter prohibiting the
UN from intervening “in the domestic jurisdiction of any state” and Article 2(4) of
the Charter that prohibits the “threat or use of force against the territorial integrity
or political independence of any state,”15 there are two principal exceptions to this
general prohibition. The first is the right of states to use force in self-defense or
collective self-defense under Article 51 of the Charter. The UNSC also has the right,
under Article 42, to authorize the use of force “to maintain or restore international
peace and security.” In the 1990s, the UNSC intervened on several occasions in the
internal affairs of sovereign states in cases of grave humanitarian crises, even where
such crises have been purely domestic in nature. Moreover, even in cases where
internal conflicts have had internationally destabilizing effects, the UNSC, in
justifying its decision to override the sovereignty of the states concerned, has not
always made reference to Article 42 of the Charter.16 The majority of international
legal scholars agree that a UNSC mandated or approved humanitarian intervention
is widely recognized as legal under international law.17
The status of unilateral or unauthorized humanitarian intervention, in which a state
or a group of states act against the sovereignty and territorial integrity of another
state in order to prevent a grave humanitarian crisis on its territory, remains
controversial. Such was the case in the 1999 war in Kosovo.
The situation in Kosovo has been one of political instability ever since Milosevic’s
regime was abolished in 1989 and autonomy established under the 1974
Communist Constitution. Kosovo Albanians conducted peaceful activities against
the regime until late 1997/ early 1998, at which point armed resistance began. The
response of the Serbian regime and its police forces was violent. There were
numerous instances of what could be branded as the disproportionate and
indiscriminate use of force by Serbian police officers. In March 1998, based on a
statement of 9 March 1998 by the Contact Group for the Former Yugoslavia,18 the
UNSC reacted to the situation by passing a Resolution under Chapter VII, but did
15 Confirmed in the International Court of Justice (hereinafter ICJ) ruling in the Corfu Channel Case (1949) and Case Concerning Military and Paramilitary Activities In
and Against Nicaragua (1986); http://www.icj-cij.org.
,
)
16 The Danish Institute of International Affairs, Humanitarian Intervention: Legal and Political Aspects (December 7 1999 .
17
MURPHY, supra note 14, at 287-288;
)
Ruth Gordon, Humanitarian Intervention by the United Nations: Iraq, Somalia, and Haiti,
INTERNATIONAL LAW JOURNAL 48 (1996 ; Catherine Guicherd, International Law and the War in Kosovo,
18 The Contact Group is composed of
31
TEXAS
41 SURVIVAL 40 (1999).
the United States, the United Kingdom, France, Germany, Italy, and Russia. It was first created in response to the war and
the crisis in Bosnia in the early 1990s. The Contact Group includes four of the five Permanent Members of the UN Security Council and the countries that contribute the
most in troops and assistance to peace-building efforts in the Balkans. Representatives of the EU Council, the EU Presidency, the European Commission and NATO
generally attend Contact Group meetings.
2007]
Self-determination as a Challenge
63
not expressly state that the situation in the Serbian southern province amounted to
a threat to international peace and security.19 Based on the mandate of the UNSC,
the Contact Group imposed sanctions on the FRY in April 1998. In September 1998,
the UNSC adopted Resolution 1199, which did determine that the situation in
Kosovo constituted “a threat to peace and security in the region.”20 The UNSC
demanded the immediate cessation of violence, and a commitment on both sides
(the Serbian state and the Kosovo Albanians) to engage in negotiations. The
Resolution concluded by empowering the Contact Group, “should the concrete
measures demanded in this resolution and resolution 1160 not be taken, to consider
further action and additional measures to maintain or restore peace and stability in
the region.”21 Despite the resolution, Russia was not ready to engage in the use of
force against the then-Serbian regime. NATO decided to take action on its own and
threatened to use force against Serbia if compliance with the aforementioned
resolutions was not forthcoming. Milosevic’s regime sought to temporarily relieve
the international pressure and agreed to the establishment of an OSCE Kosovo
Verification Mission on 16 October 1998, as well as the NATO air verification
mission over Kosovo. As a consequence of increasing violence at the beginning of
1999, NATO resumed its threat to use force and the Contact Group called for an
international conference to be held at Rambouillet in France. This, and a subsequent
conference, did not produce the results NATO had expected and, as a result, in
order to prevent a humanitarian catastrophe from taking place in the province,
NATO launched its bombing campaign against the FRY in March 1999.
I. The Legality of Unauthorized Intervention in Kosovo
International scholarship is divided on the issue of the legality of the Kosovo War.
On one hand, there are strong proponents of unilateral or unauthorized
humanitarian interventions who argue that:
The rights of states recognized by international law are meaningful only on the
assumption that those states minimally observe individual rights. The United
Nations’ purpose of promoting and protecting human rights found in article 1(3),
and by reference in article 2(4) as a qualifying clause to the prohibition of war, has a
necessary primacy over the respect for state sovereignty. Force used in defense of
fundamental human rights is therefore not a use of force inconsistent with the
purposes of the United Nations.22
. .
19 S C Res. 1160 (March
. .
31, 1999).
20 S C Res. 1199 (September
23, 1998).
21 Id.
22 FERNANDO TESÓN, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY 173-174 (1997).
64
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These authors nevertheless remain a minority; most international scholars believe
there is a ius cogens prohibition on the unilateral and unauthorized use of force.
The most authoritative scholarship on the legality of NATO’s war against the FRY,
written at the time of the intervention and in its immediate aftermath, remains the
work of Bruno Simma and Antonio Cassese.23 This section draws heavily on their
work.
As far as the prohibition on the use of force and interference in the internal affairs
of a sovereign state without the authorization of the UNSC is concerned, Simma
has no doubts that the provision contained in Article 2(4) is part of jus cogens.24
Hence, such a rule permits no derogation and can be modified only by a
“subsequent norm of general international law having the same peremptory
character.”25 Concerning the obligation of states and the international community
to react in the case of a humanitarian crisis in a particular state, Simma argues that
it is beyond doubt that such matters are of “international concern”,26 and that in the
case of breaches of human rights states may take countermeasures against a
sovereign state committing these crimes. Nevertheless, he affirms his position that
under international law in force since 1945, countermeasures “must not involve the
threat of use of armed force.”27
While Simma does concede that in situations of genocide, “the right of states, or
collectivities of states, to counter breaches of human rights most likely becomes an
obligation,” he goes on to argue that the situation in Kosovo, as of early March 1999
when NATO action began, did not amount to genocide under the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide.28
10 EJIL 1-22 (1999); Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards International
23-30 (1999); Antonio Cassese, A Follow-up: Forcible Humanitarian
Countermeasures and Opinio Necessitatis, 10 EJIL 791-800 (1999).
23 Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects,
Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EJIL
24 Simma,
supra note 23, at 3.
25 Vienna Convention on the Law of Treaties art. 53, 1155 U.N.T.S. 331.
26 Simma,
supra note 23, at 3.
27 Id. at 2.
28 Id.
.
Some authors disagree on this factual point, arguing that “it is not certain” that the actions of the Serbian armed forces and police did not amount to
genocide
under
the
1948
Convention.
See
http://www.ejil.org/journal/Vol10/No1/coma.html
.
Comment
of
Kai
Ambos
in
NATO,
the
UN
and
the
Use
of
Force:
Legal
Aspects,
With the benefit of hindsight, it appears that the media reports at the time grossly exaggerated the level of
violence. See Steven Erlanger, Early Count Hints at Fewer Kosovo Deaths, N.Y. TIMES, 1999, at A6. The total number of Albanian dead is generally claimed to be
around 10,000 although several foreign forensic teams were unable to verify the exact amount. See Patrick Ball, Wendy Betts, Fritz Scheuren, Jana Dudukovich &
s
(
Jana Asher (ed .), Killings and refugee flow in Kosovo March-June 1999, A Report to the International Criminal Tribunal for the Former Yugoslavia, January
3,
2007]
Self-determination as a Challenge
65
Chapter VII of the Charter does, of course, provide for the possibility of the UNSC
authorizing a particular country, coalition of states or regional organization to
enforce international peace and security in a given context.29 Yet, in the absence of
actions amounting to genocide, it seems reasonable to conclude that unauthorized
actions of regional organizations, such as NATO in the case of Kosovo, remain
illegal.
Further, Simma has argued that the failure of the UNSC to condemn regional
military action does not amount to tacit authorization.30 In the absence of UNSC
authorization, countries and regional coalitions can cite the self-defense exception
of Article 51 in justification of their actions against a particular state, but only in
cases in which a localized violent conflict provokes a humanitarian crisis that
crosses the borders of the state in question. The exodus of refugees, even as
numerous as in the case of Kosovo, does not constitute a breach of Article 2(4), and
thus cannot be used as grounds for invoking Article 51. Here Simma refers back to
the 1986 Nicaragua judgment, concluding that “the use of force could not be the
appropriate method to monitor or ensure…respect [for human rights].”31 In similar
terms, it has been argued that the “doubtful benefits [of unauthorized humanitarian
interventions are] heavily outweighed by its costs in terms of respect for
international law.”32 Further, many scholars have argued that the introduction of a
practice of unauthorized de facto franchising out of what is essentially considered to
be the authority of the UNSC would take us back 100 years, when all wars were
lawful.
Despite the fact that Simma confirms the essential illegality of humanitarian
intervention, he does recognize that, in the case of a passive UNSC, there remains a
pressing need for the international community to react effectively to grave
humanitarian crises, such as those in Rwanda or Srebrenica. Russia had made it
clear that it was not ready to support military intervention against Serbia. In order
to resolve such a morally dubious situation, he leaves some room for the
legalization of humanitarian intervention:
)
2002 . The International Criminal Tribunal for the former Yugoslavia, in its cases against Serbian political and military officials, has yet to decide whether the
actions of the Serbian police in Kosovo amounted to genocide.
29
See, e.g., S.C. Res. 794 (December 3, 1992) on Somalia; numerous S.C. resolutions related to Bosnia; S.C. authorization for the intervention of the Economic
.
Community of West African States (ECOWAS) in Liberia and Sierra Leone, etc.
30 Simma,
31 Id.
supra note 23, at 4.
at 5.
)
32 Mark Littman, Kosovo: Law and Diplomacy, CENTRE FOR POLICY STUDIES 4 (1999 .
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GERMAN LAW JOURNAL
[Vol. 08 No. 01
…in any instance of humanitarian intervention a careful assessment will have to be
made of how heavily such illegality weighs against all the circumstances of a
particular concrete case, and of the efforts, if any, undertaken by the parties
involved to get "as close to the law" as possible. Such analyses will influence not
only the moral but also the legal judgment in such cases.33
Simma thus asks the question whether the sequence of UNSC Resolutions related to
the NATO involvement in Kosovo can be considered an “implicit authorization” of
NATO’s attacks.34 He quotes UN secretary General Kofi Annan’s remarks on the
eve of the war (29 January 1999), who spoke directly to NATO regarding their role
in the Balkans, “[h]ow you define your role, and where and how you decide to
pursue it, is of vital interest to the UN.”35 Reportedly, notes Simma in his article,
Annan said at a press conference in Brussels, when asked about the legality of a
possible military intervention against the FRY, “normally a UN Security Council
Resolution is required.”36
Of utmost importance in regard to the Kosovo intervention is whether or not the expost facto UNSC mandate for the NATO-led international military presence in
Kosovo can be considered as legitimizing its initial involvement.37 Simma indeed
argues that there is a “thin red line” dividing NATO’s intervention in Kosovo from
illegality, but concludes that “humanitarian impulses” should not be allowed to
change the rules on which the present international order relies. He supports the
view that the Kosovo War should be regarded as an exception (one that from a
moral point of view was extremely difficult to avoid) and that “we should not set
new standards only to do the right thing in a single case. The legal issues presented
by the Kosovo crisis are particularly impressive proof that hard cases make bad
law.”38
Many high ranking representatives of NATO countries, although of the opinion
that NATO’s actions in Kosovo remain legal from the point of view of international
law, support Simma’s line, making it clear that the monopoly on the use of force of
33 Simma,
supra note 23, at 6.
34 Id. at 10.
35 Id.
36 Id. at 8.
. .
37 S C Res. 1244 (June
38 Simma,
10, 1999) ended the war in Kosovo and established an international military and civilian presence to govern the Province.
supra note 23, at 14.
2007]
Self-determination as a Challenge
67
the UNSC should be maintained and that the decision of NATO in the case of FRY,
“must not be a precedent.”39 For example, Massimo D’Alema, Italian Prime
Minister during the Kosovo War and a current Foreign Minister of the Italian
Republic, argued along these lines:
…the Atlantic Alliance had to act alone in the first phase, given the paralysis of the
UN, in order to confront a serious humanitarian emergency. The humanitarian
crisis justified the intervention; but it is an exception, not a precedent on which to
construct the world order.40
D’Alema thus argued that NATO was compelled to act due to the paralysis in the
UNSC.41 Moreover, in several of his speeches in the aftermath of the war, the
Secretary General of the UN, although stopping short of explicit recognition of the
legality of the NATO intervention in Kosovo, criticized the passivity of the UNSC.
In this way, during the UN General Assembly session in September 1999, he
argued, “[i]f the collective conscience of humanity…cannot find in the United
Nations its greatest tribune, there is a grave danger that it will look elsewhere for
peace and for justice.”42 During his Millennium Report to the General Assembly of
the UN he made a similar argument: “… if a humanitarian intervention is, indeed,
an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a
Srebrenica….”43
Antonio Cassese generally subscribes to Simma’s argument, although there is some
disagreement between the two. Simma considers humanitarian interventions illegal
from the point of view of international law, but he also leaves room for viewing the
intervention in Kosovo as a necessary exception (because of the gravity of the
humanitarian situation and the inaction of the UNSC). Cassese disagrees with
Simma on the point that there is a “thin red line” separating NATO action from
illegality. He writes, “[t]he action of NATO countries radically departs from the
Charter system for collective security…respect for human rights and self-
in the Deutscher Bundestag (October 16,
ve engaged in a political and policy oriented assessment of the intervention in
39 Klaus Kinkel, German Foreign Minister at the time, Comments during Parliamentary Debate on the Eve of the War
)
1998 , in Plenarprotokoll 13/248 at 23129. Most NATO governments or parliaments ha
Kosovo. See
Littman, supra note 23; Gareth Evans & Mohamed Sahnoun, The Responsibility to Protect, INTERNATIONAL COMMISSION ON INTERVENTION AND
)
STATE SOVEREIGNTY (2001 .
40 MASSIMO D’ALEMA, KOSOVO: INTERVISTA DI FEDERICO RAMPINI, 58 (1999).
41 Id. at 145.
42
Evans & Sahnoun, supra note 39, at 2.
43 Id. at 2.
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[Vol. 08 No. 01
determination of peoples, however important and crucial it may be, is never
allowed to put peace in jeopardy.”44
This, however, does not mean that Cassese does not recognize the importance of
humanitarian intervention. While Simma essentially considers that such actions can
be illegal but necessary, he fails to offer a “recipe” for future actions in case of
humanitarian crises where the UNSC is paralyzed. On the other hand, Cassese
considers humanitarian intervention to be absolutely illegal at the present time, yet
he recognizes that the 1990s saw a trend in the international community towards
gradual acceptance of the doctrine, arguing that “under certain conditions… [it]
may gradually become justified.”45 This is because, the author argues, “it is not an
exceptional occurrence that new standards emerge as a result of a breach of lex
lata.”46
II. Legitimating Intervention Ex-Post Facto
If, as seems likely, we can conclude that NATO’s intervention represents a
challenge to the existing norms on the prohibition of the use of force, to what extent
can military action be justified ex-post facto?
According to Cassese, in order for individual cases of humanitarian intervention to
become gradually justified from the point of view of international law, it is
necessary to respect strict conditions. The author lists the following six. First, that
the humanitarian crisis is substantially serious, amounting to “crimes against
humanity”47, and that the sovereign state on whose territory these crimes occur is
either the perpetrator or is unable or unwilling to prevent the violence. Second, if
the crime is a result of anarchy in a sovereign state, there must be evidence that the
central authority is unable to prevent these crimes before any intervention can take
place. If, on the other hand, the state itself is the perpetrator, then force must
remain the last resort. Third, unilateral intervention can only occur in the case of a
paralyzed UNSC. Fourth, all peaceful avenues must be exhausted before any
intervention. Fifth, it must be carried out by a group of states, and not by a “single
hegemonic power, however strong its military, political and economic authority,
nor such a power with the support of a client state or an ally.”48 Cassese is arguing
44 Cassese,
45 Id. at 27.
46 Id. at 30.
47 Id. at 27.
48 Id.
supra note 23, at 24-25.
2007]
69
Self-determination as a Challenge
that, in the present world order, the US cannot conduct a humanitarian intervention
alone or with its allies individually (e.g. the UK), but would have to reach a
consensus within NATO before carrying out such action. Thus, arguably, the
intervention in the case of Kosovo would fulfill this condition, whereas in the case
of the NFZs in Iraq (at least, after the withdrawal of France) would not.
The sixth condition is the most relevant to this article, as here Cassese argues that
the gradual legalization of humanitarian intervention can occur only where the
future instances of such unauthorized involvement are strictly confined to the
“limited purpose of stopping the atrocities and restoring respect for human rights,
not for any goal going beyond this limited purpose.”49 The report of the
International Commission on Intervention and State Sovereignty50 is even clearer
with regard to the “permissible” goal and outcome of humanitarian interventions:
…the responsibility to protect is fundamentally a principle designed to respond to
threats to human life, and not a tool for achieving political goals such as greater
political autonomy, self-determination, or independence for particular groups within the
country (though these underlying issues may well be related to the humanitarian
concerns that prompted the military intervention). The intervention itself should
not become the basis for further separatist claims.51
Bearing in mind that the current international military and civilian administration
in Kosovo is a direct result of the NATO intervention of 1999, it would, in this view,
be unacceptable for NATO countries to impose the independence of Kosovo on
Serbia. It is only the potential approval of the UNSC that could allow for the
possibility of imposing Kosovo’s independence on Serbia.52 The aforementioned
49 Id. Of course, the intervention would have to be proportionate to the breaches of human rights on the ground and would, like any military conflict, need to respect
international norms regulating the use of force. Having this condition in mind, many international legal scholars would consider NATO’s intervention in the FRY in
1999 to be illegal. As Littman argued in the case that the FRY brought to the ICJ against the NATO counties, the latter preferred using procedural caveats to contest the
claims, rather than engaging with the substance of the case brought against them. “…[T]he UK could have waived this objection and accepted the Yugoslav challenge
to have the legality of the bombing tested before the Court. The Government thus deprived the British public of the opportunity of an authoritative decision on this
crucial matter…Given the weight of opinion and legal authority against the NATO position, the paucity of evidence in its favour and the reluctance of the UK to test its
view before the ICJ, it is difficult to avoid the conclusion that the NATO action was illegal.” See Littman,
supra note 23, at 6-7.
Moreover, numerous
international human rights organizations judged certain aspects of the NATO intervention as being in breach of international legal norms related to situations of war
and military conflict. For example, Kenneth Roth, Executive Director of Human Rights Watch, stated, "Once it made the decision to attack Yugoslavia, NATO should
have
done
more
to
protect
civilians.
All
too
often,
NATO
targeting
subjected
the
civilian
population
to
unacceptable
risks."
See
.
http://www.hrw.org/press/2000/02/nato207.htm
50
The International Commission on Intervention and State Sovereignty was founded by the Government of Canada, together with a group of major foundations in
2000.
51 International Development Research Centre, The Responsibility to Protect 43 (2001
) (emphasis mine).
. .
52 It is even doubtful that the S C (assuming no Russian or Chinese veto) has legal basis to separate territory from a sovereign country. This has no precedent outside
of the colonial context, where the application of a people’s right to self-determination remains unambiguous. Still, regarding the recognition of independence for
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report unambiguously states: “Yugoslavia could be said to have temporarily had its
sovereignty over Kosovo suspended, though it has not lost it de jure.”53
Indeed, UNSC Resolution 1244 reaffirmed the commitment “of all Member States to
the sovereignty and territorial integrity of the FRY and the other States of the
region, as set out in the Helsinki Final Act…”54 Moreover, Article IV allows for the
possibility of the return of “an agreed number of Yugoslav and Serb military and
police personnel” to the province, who could, “perform the functions in accordance
with Annex 2 [of the Resolution].”55 This means that the Serbian police would be
allowed to perform “liaison” functions with the international civil (UNMIK) and
military (KFOR) mission in Kosovo, mark and clear minefields, as well as be
present “at Serb patrimonial sites” and “at key border crossings”. The Resolution,
in Annex 1 and in Article VIII of Annex 2, also contains provisions regarding the
future status of the province providing for a “political process” that would lead to
“an interim political framework agreement” as well as “substantial self-government
for Kosovo and Metochia [sic].”56 Yet the drafters of the Resolution were careful to
ensure that, regardless of the process, the “principles of sovereignty and territorial
integrity of the Federal Republic of Yugoslavia and the other countries of the
region” are affirmed.57
Resolution 1244 also took “full account of the Rambouillet accords” in the context
of the political process leading to “substantial self-government” for the province.58
These accords, in Chapter I, Article 1, defined the future structure of Kosovo’s selfgovernment, leaving Serbian authority in the fields of territorial integrity, common
market within the FRY, monetary policy, defense, foreign policy, customs services,
“federal” taxation, “federal” elections, and other areas specified in the Agreement.
. .
Kosovo by the entire S C , it would be difficult to contest such an outcome bearing in mind “the doctrine of effectivity” (which besides other elements argues that
recognition of a new state by other countries would validate the separation. See 2 S.C.R. 217
(1998), reference regarding secession of Quebec. In the event that
. .
both Russia and China endorse a S C Resolution amounting to the recognition of the independence of Kosovo, the disruptive effect of such a precedent would be
somehow mitigated. Hence, one could argue that in some sense international law would thus remain on an evolutionary course towards a new geopolitical reality,
avoiding a slide into an outright revolution.
53 International Development Research Centre, supra note 51, at 44. The report develops the concept of temporarily suspended sovereignty even further in the
theoretical sense: “Sovereignty issues necessarily arise with any continued presence by the intervener in the target country in the follow up period. Intervention
suspends sovereignty claims to the extent that good governance – as well as peace and stability – cannot be promoted or restored unless the intervener has authority
over a territory. But the suspension of the exercise of sovereignty is only de facto for the period of the intervention and follow-up, and not de jure.”
. .
54 S C Res. 1244 (June
10, 1999).
55 Id.
56 Id.
57 Id.
58 Interim Agreement for Peace and Self-Government In Kosovo, February 23, 1999.
2007]
Self-determination as a Challenge
71
In the above-quoted interview, published in the aftermath of the bombing,
D’Alema reflected the political spirit of the time, placing the potential
independence of Kosovo in political context. Asked why the Italian position, both
before and after the war, limited itself to the autonomy of Kosovo, not its
independence, he responded, “…because independence would mean, most
probably, a new conflict in Yugoslavia within [a] few years.”59
Before delving into the analysis of arguments in favour and against the selfdetermination of Kosovo, it is important to clarify the main argument of this paper.
Having stated that imposing the self-determination of Kosovo on Serbia would
present a serious challenge to the international order and threaten the future of the
doctrine of humanitarian intervention, it cannot be argued that Kosovo should
regain the autonomous status it held under the 1974 Communist Constitution
suspended by Milosevic. Both UNSC Resolution 1244 and the Serbian government
acknowledge a measure of “substantial self-government” that clearly goes beyond
the scope of the autonomy of 1974.
The Serbian state has been without this part of its territory for seven years, and so it
is difficult to argue that Serbia can realistically aspire to govern Kosovo again in
some form. Let us consider these arguments in more detail and propose alternative
solutions for the resolution of the contested status of Kosovo.
C. Testing the Legal Arguments for the Independence of Kosovo
There are several legal arguments in favour of the independence of Kosovo: some
stem from certain interpretations of the “municipal law” of the Socialist Federative
Republic of Yugoslavia (SFRY), while others concentrate mainly on arguments
related to public international law. Often external and internal arguments for the
independence of Kosovo are mixed.
In the constitutional set-up of the SFRY of 1974, Kosovo had the status of an
autonomous province within Serbia. The Constitutions distinguished between two
different legal categories: narodi (nations) and narodnosti (nationalities).60 There is a
widespread argument that, following the example of the Soviet Union, the opening
59 D’ALEMA,
supra note 40, at 24.
60 A term somewhat difficult to translate, one could argue that narodnost reflects the term national minority in European constitutionalism. In fact, while each nation
had a constituent status (Serbs, Croatians, Muslims, Montenegrins, Macedonians and Slovenians) in SFRY, other nationalities, for example, Albanians and Hungarians,
had a different status in the Constitution etc. Their constitutional status was somewhat lower, at least as far as the constitutional provision of the right to secede was
concerned.
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GERMAN LAW JOURNAL
paragraph of the Constitution SFRY guaranteed the right to secede from Yugoslavia
to nations: it began, “Nations [Narodi] of Yugoslavia, taking into account the right
of every nation to self-determination, including a right to secede…” 61
In the early 1990s, in order to deal with the legal and political implications of the
imminent breakdown of the SFRY, the international community set up the
Arbitration Commission on the former Yugoslavia (the so-called Badinter
Commission). In 1991, the Badinter Commission concluded that the former
Yugoslav republics were eligible to become independent in the process defined in
the EC “Guidelines on the recognition of new states in Eastern Europe and in the
Soviet Union”.62 In its opinion number 3, it concluded, on the basis of their
interpretation of the legal status of the uti possidetis rule, that “except where
otherwise agreed, the former boundaries [of the SFRY Republics] become frontiers
protected by international law.”63 The Commission rejected the request of the
Kosovo Albanian political leadership for the recognition of Kosovo. The rationale
was related to the status of Kosovo as an autonomous province of Serbia.
This decision by the Badinter Commission has been criticized by authors who claim
that the status of Kosovo under the 1974 Constitution amounted to that of a
republic, bearing in mind the vast array of authority accorded to autonomous
provinces. It has thus been argued that the Badinter Commission should have
recognized Kosovo’s internal borders with Serbia as full international boundaries.64
This argument, however, seems unconvincing for two reasons: first, the
constitutional difference between republics and autonomous provinces under the
1974 SFRY Constitution did have a legal and political sense and it cannot be argued
that the two were essentially coterminous;65 and secondly, no member of NATO
ever, either before or after the 1999 Kosovo War, seriously invoked this argument
as a justification for intervention or for the independence of Kosovo.
61 1974 Ustav Socijalisti!ke Federativne Republike Jugoslavije [Constitution] (Yugoslavia), http://www.arhiv.sv.gov.yu.
62 Guidelines on the Recognition of New States, 31 ILM 1486 (1992).
63 Id. at 1500.
64 Dajena Kumbaro, The Kosovo Crisis in an International Law Perspective: Self-Determination, Territorial Integrity and the NATO Intervention, The Report for the NATO Office
of Information and Press, 37, June
16, 2001.
65 See Roland Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union,
4 EJILS (1993). While the author does not contest the decision of the Badinter
Commission in the case of Kosovo, his argument in general runs along the lines suggested by the opening sentence: “According to what is probably still the
predominant view in the literature of international law, recognition of states is not a matter governed by law but a question of policy.” On the other hand, Danilo Türk
defends the importance of legal reasoning in general and the decision of the Badinter Commission in particular. See Danilo Türk, Recognition of States: A Comment,
)
also PETER RADAN, THE BREAK-UP OF YUGOSLAVIA AND INTERNATIONAL LAW
CONFLICTING WORLD: THE ROLE OF UTI POSSIDETIS (2002).
EJILS (1993 . See
) and
(2002
4
SUZANNE LALONDE, DETERMINING BOUNDARIES IN A
2007]
73
Self-determination as a Challenge
However, a provision of the Rambouillet Accords – namely, Ch 8, Art 1(3) – does
mention a “final settlement of Kosovo, on the basis of the will of the people.”66
There is thus grounds on which Kosovo Albanians have a basis to argue for
independence, particularly when bearing in mind that UNSC Resolution 1244
specifically refers to the conclusions of the Rambouillet Accord. Yet, even if one
were to interpret this provision and the subsequent mention of the Rambouillet
Accord in Resolution 1244 as providing a basis for a referendum on the
independence of Kosovo in the future, this does not imply that negotiations should
be side-stepped and that secession should be imposed on Serbia.67 Moreover, all the
aforementioned considerations militate against the adoption of extreme measures
such as the imposition of the independence of this province on Serbia.
A second argument in favour of Kosovo independence stems from certain
understandings of international legal norms and interpretations of the right to selfdetermination of peoples. While the right of self-determination has a great appeal,
it is very controversial to apply this rule – if understood as a fundamental right of
all to secede and establish independent states – outside of the context of
decolonization. Even if we were to accept such a position however, we are
immediately confronted with another dilemma, best understood through the
interplay of the two legal categories of “people” and “territory.” Zoran Oklopcic
argues that:
[T]he case of the self-determination of peoples is a classical example of the chicken
and egg dilemma. “The people” is, supposedly, the agent that creates the state
while on the other hand the people itself is delineated by the recourse to some
territory. For example, some argue that there exists the right of the people of Kosovo
to external-self determination. This however presupposes the territory of Kosovo as
a relevant unit, which is supposed to delineate the particular people that have the
right to self-determination. The issue then is about the legitimacy of that particular
66 “Three years after the entry into force of this Agreement, an international meeting shall be convened to determine a mechanism for a final settlement for Kosovo, on
the basis of the will of the people, opinions of relevant authorities, each Party’s efforts regarding the implementation of this Agreement, and the Helsinki Final Act, and
.
to undertake a comprehensive assessment of the implementation of this Agreement and to consider proposals by any Party for additional measures ”
67 Here one is advised to go back to the opinion of the Supreme Court of Canada on the legality of the secession of Quebec (in case of a successful referendum) under
international and Canadian municipal law. Asked whether unilateral secession is possible under the Canadian Constitution, the Court answered that “Self
determination was expected to be exercised within the framework of existing states” and that Federal government “is obliged to negotiate” secession with Quebec.
Thus secession was not to trigger independence automatically. See
2 S.C. Res. 217 (1998) reference regarding secession of Quebec.
74
[Vol. 08 No. 01
GERMAN LAW JOURNAL
unit, and not about some purported will of the people, which is the construction of
the legal arrangement that delineated the territorial boundaries of Kosovo.68
In this way we come back to the first argument related to the interplay of
arguments between “municipal” SFRY law and international law. It is important to
point out that this argument is not widely used among the important players in the
international community that, at the political level, tend to be supportive of
Kosovo’s independence. This is probably related to the fact that no major
international player is at this moment ready to politically support the
transformation of international law in the direction of the recognition of the right to
self-determination (as a right to independent statehood) beyond the colonial
context. As previously noted, US foreign policy representatives have argued that
they “believe that the situation in Kosovo and Kosovo itself are a unique
phenomenon.”69 Thus, responding to Russian President Putin’s provocative
remarks on the effect of forcing Kosovo independence on various other conflicts in
other parts of the world, they insist that recognizing a right to secede in the case of
Kosovo does not set a precedent in the case of north Ossetia, Abkhazia,
Transdniestria in Moldova, etc. The only difference between these cases is that
Kosovo is governed by an international, UN mandated administration, which is
itself a direct result of the 1999 intervention.
This line brings us back full circle to the argument of "disowned sovereignty"
supporting the legitimacy of secession in the case of Kosovo. A territory has a right
to exercise self-determination in cases where the population in the territory was
subject to serious and protracted human rights abuse by the state. This argument
finds basis in the concept of human security as the source of the legitimacy of state
power. Put briefly, this aspect of the paradigm of human security holds that the
state’s purpose is to protect its citizens and if the state fails to do so it loses a right
to govern them. Milosevic’s regime certainly misgoverned Kosovo, but one can
justifiably ask why the Serbian democratic government should have to pay the
price of the abuses of Milosevic’s authoritarian regime. The post-Milosevic Serbian
democracy, and its police and military forces, proved in the conflict against the
Albanian guerrilla groups in South Serbia in 2001 that they were able to maintain
law and order without excessive and indiscriminate use of force, according to
NATO standards, and in cooperation with that organization.70 Further, is it worth
68
See
Zoran
Oklopcic,
What’s
in
a
Name:
Five
theses
on
the
Self-Determination
of
Peoples,
.
http://transatlanticassembly.blogspot.com/2006_02_01_transatlanticassembly_archive.html See also Karen Knop, Diversity and Self-Determination in International Law,
)
CUP (2002 .
69 See
Cahn, supra note 9.
70 International Crisis Group, Southern Serbia: In Kosovo's Shadow,
43
)
EUROPE BRIEFING (2006 . “Southern Serbia’s Albanian-majority Presevo Valley is a still
incomplete Balkan success story. Since international and Serbian government diplomacy resolved an ethnic Albanian insurgency in 2001, donors and Belgrade have
2007]
75
Self-determination as a Challenge
highlighting that should one use the argument that Serbia has lost the right to
govern Kosovo as a result of its abuses of power, one must also apply the same
judgment to the Kosovo Albanians and their own widespread abuse of minority
communities in the last seven years.71 The circularity of such an argument is
indefinite.
Unsurprisingly, this argument has never explicitly been raised by the negotiating
parties, the representatives of the UN or Contact Group countries, or indeed by any
other states involved in the negotiating process.72 Implicitly, however, there have
been suggestions that Milosevic’s policies should remain a burden for Serbia’s
young democracy, and that the current Serbian state and people will have to pay
the consequences for the wrongdoings of the past. Martti Athisaari, the United
Nations Special Envoy of the Secretary-General leading the talks on the
determination of the final status of Kosovo, reportedly delivered a recent statement
along these lines. The Serbian government protested against Athisaari’s statement
precisely because it appeared to imply that the Serbian people are guilty as a nation
for what occurred in Kosovo, and that, as a consequence, they have to pay the
consequences of the crimes committed in the past and must thus reconcile
themselves to the possibility of losing Kosovo. In response, the office of UN Special
Envoy has since denied that these represent accurate interpretations of his words.73
invested significant resources to undo a legacy of human rights violations and improve the economy. Tensions are much decreased, major human rights violations
have ended, the army and police are more sensitive to Albanian concerns and there is progress, though hesitant, in other areas, such as a multi-ethnic police force,
gradual integration of the judiciary, and Albanian language textbooks. Ethnic Albanians appear increasingly intent on developing their own political identity inside
Serbia and finding a way to cohabit with Serbs, something that should be encouraged and supported.” See also International Crisis Group, Peace in Presevo: Quick fix for a
long term solution?, Europe Report
116 (August 10, 2001). In this report they argued, referring to the Serbian-NATO police action against the Albanian rebels, that
“Operating from the Ground Safety Zone, the UCPMB attacked police and other state targets with virtual impunity… NATO dashed rebel hopes by taking Belgrade’s
side. The alliance negotiated a phased reoccupation of the GSZ by FRY forces that occurred between 14 March and 31 May 2001. Contrary to many expectations, the
reoccupation went smoothly.”
71 Kai Eide, Special envoy of the Secretary General for the Comprehensive review of Kosovo, Comprehensive Review of the Situation in Kosovo in its Report (June
13,
2005), http://operationkosovo.kentlaw.edu/kai-eide-report-N0554069.pdf#search=%22Kai%20Eide%20report%22: “with regard to the foundation of a multiethnic
)
society the situation is grim.” See also Human Rights Watch, Failure to Protect: Anti-Minority Violence in Kosovo, March 2004, 16 (July 2004 . See also Cahn
, supra
note 9.
72 The Contact Group, Statement on the Future of Kosovo (January
31, 2006) alludes
to the notion of ‘disowned sovereignty’: “Ministers recall that the character of the
Kosovo problem, shaped by the disintegration of Yugoslavia and consequent conflicts, ethnic cleansing and the events of 1999, and the extended period of international
administration under UNSCR 1244, must be fully taken into account in settling Kosovo's status. UNSCR 1244 remains the framework for the ongoing status
process…Ministers look to Belgrade to bear in mind that the settlement needs, inter alia, to be acceptable to the people of Kosovo. The disastrous policies of the past lie
at
the
heart
of
the
current
problems.”
See
http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/
Xcelerate/ShowPage&c=Page&cid=1007029391638&a=KArticle&aid=1136909612032. While it is clear that certain member states of the contact group share a political
belief that Serbia, due to the past violence of Milosevic’s regime, lost its legitimacy to govern Kosovo, their statement would have to be a great deal more explicit before
presuming any legal import. It is unlikely that the Contact group would ever reach agreement on such a position.
73 Ahtisaari’s chief spokesperson Hua Jiang told that Ahtisaari would not apologise for his statements because he not referred to the collective guilt of the Serbian
people. “The statement was taken out of context and poorly presented. He never mentioned the collective guilt of the Serbian people. Ahtisaari spoke of the historical
legacy, that every nation should have the courage to face its own past. There is no reason for Ahtisaari to offer an apology and that is not going to happen.” See
http://www.b92.net/eng/news/politics-article.php?yyyy= 2006&mm=08&dd=31&nav_id=36405
.
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There are few, if any, other examples of an argument of this type being made in the
post WWII international legal order; as such, historical guilt is usually combined
with an invocation of political pragmatism, which in itself is a powerful argument.
Currently Serbia has neither political nor military influence in Kosovo (beyond the
enclaves in the south and in the North Mitrovica and the surrounding area
confining Serbia), and can hardly impose its will on its southern province. But this
argument of effective control is also applicable to the claims of the Kosovo
Albanians, who lack control of the Serbian enclaves (especially the North of Kosovo
beyond the Ibar River). It is only the international military presence that keeps this
part of Kosovo from integrating back into Serbia. The situation is more complex for
other Serbian enclaves scattered within Kosovo further from the borders of Serbia
proper, but the lack of Albanian control remains an issue. Charles Kupchan takes
this argument to the extreme arguing for the independence of Kosovo, but
simultaneously for its partition:
Many in the international community insist that the partition of Kosovo along
ethnic lines would send a dangerous signal, condoning ethnic segregation and
fuelling fragmentation elsewhere in the Balkans. This argument is not without
merit. It would have been best if the peoples of the former Yugoslavia had been
able to live together amicably in a unitary state. The breakup of Yugoslavia
certainly violated the civic values on which multiethnic society rests – as would the
independence and partition of Kosovo. But when the best outcome proves
impossible to achieve, the imperatives of stability ultimately require compromising
the principle of multiethnicity. Just as these imperatives provide a compelling
rationale for Kosovo's separation from Serbia, so might it be necessary for Kosovo
itself to be partitioned in order to bring peace to the region… Furthermore,
Kosovo's situation is unique: its independence, and even its partition, is unlikely to
trigger further unraveling in the Balkans.74
In 1999 NATO, with the UNSC having de facto legitimized the military intervention
on the FRY, assumed a twofold responsibility towards Kosovo and Serbia. On one
hand it promised to stop ethnic violence and end the humanitarian catastrophe in
the province. This task certainly had its successes (mainly by ending the suffering
of the Kosovo Albanians under Milosevic), but also failures, such as the inability of
the international civilian and military administration to stop violent retaliations
and the consequent flight of Serbs, Roma and the others from the province in the
aftermath of the intervention.75 On the other hand, it ventured into illegality under
74 Charles A. Kupchan, Independence for Kosovo,
84 FOREIGN AFFAIRS (2005).
75 Recently, the UK House of Commons‘ Foreign Affairs Committee issued a report entitled “The Western Balkans” on February 23, 2005. This report suggests that
independence might be the most realistic solution for Kosovo, but is much more prudent as far as the strategy of reaching that goal is concerned. Based on an interview
2007]
Self-determination as a Challenge
77
international law by striving to achieve a pressing moral duty: stopping the
violence of Milosevic’s regime. This responsibility extended to the process of
determining the future status of Kosovo, and assuring that the democratization and
economic progress in the province continue after the heavy international
engagement there. Both the political stability of the wider region of the Balkans,
and the continuing future development of international law in the direction of
further protection of the individual and away from the present order dominated by
state sovereignty, depend on the resolution of the Kosovo issue.
D. Conclusion: Shared Sovereignty as a Compromise Solution
International law must adapt to the changing climate in world affairs, since it is
unrealistic to expect that in the situation of tectonic changes, such as the end of the
Cold War and the dissolution of the Soviet Union, law can pretend to maintain the
status quo. The case of Kosovo and humanitarian intervention demonstrates this
both in a political and moral sense. Russia and China continue to play the part of
classical status quo powers, and their role in the UNSC is consequently related to
their interests.76 On one hand, they desire to maintain the formal structure of the
UNSC and to leave its powers unchanged. On the other, on matters such as, for
example, the case of Kosovo, regardless of their foreign policy interests, they tend
to accept the outcome of NATO intervention in a fairly acquiescent manner. As
long as the conditions of the legality of unauthorized humanitarian intervention,
described in section 2 of this paper, are respected, there is hope that an
international consensus on the political and geographical extent of legal
humanitarian intervention can be reached – even if this happens unwillingly as far
as the interests of Russia and China, for example, are concerned. The doctrine of
humanitarian intervention, if conducted in line with Cassese's six conditions could
represent a pillar of the evolutionary adaptation of international law to the new
political realities. Provided that it respects the strict rules of engagement, one can
hope that it can be applied in the future in order to prevent widespread human
suffering, such as in the sorry cases of Rwanda and Srebrenica.
with the Norwegian ambassador to NATO, Kai Eide (see supra note 63), the report predicted that, if the final status of Kosovo is not resolved soon, Albanians could
plunge into violence against the Serbs and other minorities one more time. It was argued in the Report: “final status…could see an exodus of the Serbian minorities
heading back towards Belgrade.” One UK MP quoted in the report argued that “we are damned if we do and damned if we do not” resolve the status of Kosovo. Misha
Glenny – one of the contributors to the report and an expert on the region’s history and politics – argues that “going [to Belgrade] now and telling Serbian politicians
that they have to support the idea of a final status which is likely to result in independence of Kosovo is turkeys voting for Christmas. It is no good asking Serbian
politicians to do that.” Glenny is convinced that this would bring about the electoral rise of the extreme-nationalist forces in Serbia, an outcome that could possibly
.
have disastrous effects on the region as a whole. See http://www.publications.parliament.uk/pa/cm/cmfaff.htm
)
76 See HENRY KISSINGER, A WORLD RESTORED (1957 for a definition of a status quo and revolutionary power.
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Kosovo is a litmus test for the successfulness of the doctrine of humanitarian
intervention. If the US and the EU take an active role in imposing the independent
status of this province on Serbia, the doctrine of humanitarian intervention would
suffer a significant blow. If, on the other hand, the international community looks
to exert pressure on both sides to reach a negotiated agreement, NATO’s original
involvement may, after seven years, end in success.
A truly worrying scenario would be if Kosovo’s independence were imposed on
Serbia in a process that entirely bypasses the UNSC. An alternative to such a
solution would be to use the remainder of the negotiating process to broker and
impose a compromise on both sides. The international community could thus
recognize the legitimacy of, but not forcefully formalize, Kosovo’s claim to
independence. This could be achieved by offering a formula of shared sovereignty
for the province in the mid-term future.77
By recognizing realities on the ground while simultaneously refusing to go beyond
the limited scope of the doctrine of humanitarian intervention that was used to
justify international involvement there, Kosovo should enjoy all the privileges and
powers of an independent state, with the exclusion of a seat in the UN General
Assembly. Such a solution is not without political advantages. First, such a solution
stands a much greater chance of being acceptable to a Serbian government that
needs to be able to demonstrate to its population that it did not lose Kosovo.
Secondly, the Kosovo Albanians would hopefully accept this outcome as a de facto
independence that may be formalized in the future. The province could be
separately represented in international institutions and organizations other than the
UN, and it could establish bilateral relationships with sovereign states. Full
independence of the province would be deferred until the time of Serbia’s and
possibly Kosovo’s accession to the EU, where, dependent upon the level of respect
of minority rights and human rights more generally, the population of Kosovo
(provided that it does not by itself fulfill the criteria for EU accession) could decide
through a referendum on the issue of full independence (comprising a UN seat).
Until that moment, Serbia would represent Kosovo in the UN.
77 Some proposals on the future status of Kosovo suggested
a similar outcome. See International Commission on the Balkans, The Balkan in Europe’s Future, April 12,
2005, http://www.balkan-commission.org. The main argument of the Report boils down to the strategy of independence for Kosovo in stages, whereby Kosovo would
be granted “independence without sovereignty” in 2005/2006 meaning that Kosovo would legally be a protectorate of the UN (or, preferably, the EU). In the following
stage, the report calls for “guided sovereignty” where Kosovo starts accession negotiations with the EU. Finally, the Province would move towards full (and the report
adds “shared”) sovereignty, which would be reached only at the moment when Kosovo enters the EU. The principal difference between the proposal of this article and
the proposal of the aforementioned report is the readiness of the International Commission to deprive Serbia of sovereignty over Kosovo without its prior consent.
2007]
Self-determination as a Challenge
79
As far as the Serbian enclaves in the province, as well as religious sites are
concerned they should receive a high degree of institutional protection and
autonomy in conducting their own affairs.78
The purpose of this paper has been to demonstrate that the entire doctrine of
humanitarian intervention would be fundamentally imperiled if NATO or any of
its member states decided to impose the independence of Kosovo on Serbia. It is
important to recognize, however, that further delay in deciding the future status of
the province is untenable both politically and in terms of security. The
unwillingness of the Albanian population to reintegrate into the constitutional
system of Serbia must be taken into account, while also recognizing the legitimacy
of the claim of a sovereign state to refuse to relinquish a large portion of its territory
that continues to include a sizeable population that wishes to remain a part of it (at
least without a UNSC mandate). This paper has suggested that the international
community needs to facilitate a compromise rather than an ultimatum.
Since the dissolution of the Soviet Union, international law has been undergoing an
evolutionary adaptation to the new balance of powers in the world. The doctrine of
humanitarian intervention could become one of the major pillars of the new system.
The right of nations to exercise self-determination in the expression of an outright
secession from the territory to which it is a constituent part is far from being
recognized as a rule of international law (outside of the post-colonial context). To
accept Kosovo as an exception, and were its independence to be forced on Serbia
without a formal decision of the UNSC, would amount to a revolutionary challenge
to established international law. Moreover, it would create a precedent for which
no state in the international community seems willing to take responsibility.
78 See Dusan Janjic, Srdjan Cvijic, Nenad Djurdjevic & Danijela Nenadic, White Paper: Why is Decentralization Important for Kosovo status talks?, Nato Parliamentary
Special Seminar – Kosovo: Decentrlization as the key to future status negotiations, October 28, 2005, http://www.natopa.int/Default.asp?SHORTCUT=820, for a proposal on the future internal organization of Kosovo that could present sound basis for the effective
protection of minorities.
Assembly
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ARTICLES
SPECIAL ISSUE – WHAT FUTURE FOR KOSOVO ?
Birth of a Nation: Kosovo and the Persecution of Pariah
Minorities
By Claude Cahn!
“In August 1998, at the ‘Black Eagles’ unit
headquarters at Rznic, Idriz Balaj detained as prisoners
Zenun Gashi, a former policeman, Misin Berisha and
his son, Sali Berisha, all of Roma ethnicity. Zenun
Gashi was last seen in the village of Kosuric/Kosuriq,
municipality of Pec/Peja. On the day of his abduction,
he was observed to have been badly beaten in a car with
three KLA soldiers, in the neighbouring village of
Barane/Baran. While detained, Sali Berisha’s nose was
cut off, in the presence of Idriz Balaj and of two other
KLA soldiers. Idriz Balaj cut each of the three men on
their necks, arms and thighs, rubbed salt into the cuts
and sewed them up with a needle. Idriz Balaj then
wrapped Zenun Gashi, Misin Berisha and Sali Berisha
in barbed wire and used an implement to drive the barbs
of the wire into their flesh. Idriz Balaj also stabbed
Zenun Gashi in the eye. The three men were then tied
behind Idriz Balaj’s vehicle and dragged away in the
direction of Lake Radonjic/Radoniq. They have not been
seen alive since this day and are presumed to have been
killed.”1
!
Programmes Director, European Roma Rights Centre, [email protected]. The author gratefully
acknowledges that resources of the European Roma Rights Centre have been indispensable in the
preparation of this article.
1 Prosecutor v. Haradinaj, Balaj, & Brahimaj, Case No. IT-04-84-I, Indictment Decision, ¶ 64 (4 March
2005) [hereinafter Haradinaj ICTY Indictment].
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A. Introduction
Millions of Roma and other persons regarded as “Gypsies” live throughout Europe,
from Lisbon to Vladivostok. The Romani language is Indic and closely related to
modern Hindi; Roma are descended from a disparate group of persons who arrived
in Europe from India around one thousand years ago. However, not all persons
regarded as Gypsies accept the term “Roma” as their ethnonym. In Kosovo, three
prominent groups exist: Roma, explicitly recognized in the Constitutions of the
former Yugoslavia, “Egyptians”, a group first declaring their existence in the 1990
Yugoslav census, and claiming origins in Egypt not India, and “Ashkalis”, a group
first declaring their presence in 1999. Under UN governance in Kosovo, it has
become customary to speak of “RAE minorities” (RAE) as the sum of the three
groups. Linking these disparate groups is the treatment to which they are
subjected: Roma, Ashkalis and Egyptians are collectively targeted for negative
treatment because of the corpus of complex animosities known as “anti-Gypsyism”.
In Kosovo these forces have had a particularly powerful impact in the context of the
conflict in the former Yugoslavia.
Following the cessation of NATO action against the Federal Republic of Yugoslavia
in June 1999 and the subsequent return of ethnic Albanians from abroad,
approximately four fifths of Kosovo's pre-1999 RAE population -- an estimated
100,000 people -- has been expelled from their homes. The European Roma Rights
Centre (ERRC) conducted field research in Kosovo during the summer of 1999. This
field research and subsequent missions in 2000, 2002, 2004, 2005 and 2006
documented numerous abuses after the withdrawal of Yugoslav forces from the
region in early June 1999, primarily by ethnic Albanians intent on purging Kosovo
of RAE individuals and communities, along with other minorities. Documented
abuses include the killing of RAE by ethnic Albanians; abduction and illegal
detention of RAE by ethnic Albanians; torture, beating and other physical abuse;
rape; expulsions of Roma from homes and communities; house burnings; forced
labour; forced entry into RAE houses; and confiscation of houses and other
property.2 Ethnic Albanians burned whole RAE settlements to the ground, in many
cases while NATO troops looked on. A number of RAE individuals who
disappeared during the summer of 1999 remain missing and are presumed dead.
During the implementation by the Milosevic regime of “Operation Horseshoe” in
Kosovo in the early months of 1999, Roma and others regarded as Gypsies were
Claude Cahn and Deyan Kiuranov, ERRC in Kosovo; Pogrom Situation, in ROMA IN THE KOSOVO
CONFLICT 14 (European Roma Rights Center, 1999).
2
2007]
Birth of a Nation: Kosovo and the Persecution of Pariah
83
complicit. The facts are not disputed: Roma assisted the Serbian police in
plundering shops to supply the military action, and in burying the Albanian dead.
However, there is no common ground on the interpretation of these facts. Roma say
that the forces of the state coerced them into assisting the military operation and
that there was no space for resistance. Albanians regarded these acts as further
evidence that Roma and other RAE had allied themselves with the enemies of the
Albanian nation.
Today, persecution of members of these RAE communities continues, manifested in
their systematic exclusion from access to fundamental human rights. Racial
discrimination against RAE communities in Kosovo is pervasive, depriving tens of
thousands of their dignity. Anti-Gypsy sentiment among the ethnic Albanian
majority is widespread. Today, RAE and others considered Gypsies in Kosovo live
in a state of pervasive fear, fostered by routine intimidation, verbal harassment, and
periodic racist assaults. Those negotiating Kosovo’s future have effectively
abandoned the RAE communities.
B. You Have to Live Here: Impunity for Ethnic Cleansing
In March 2005, the International Criminal Tribunal for the Former Yugoslavia
(ICTY) indicted Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj on 37 Counts,
including inter alia Crimes Against Humanity, and Violations of the Laws or
Customs of War.3 The indictment was the first such act by the ICTY Prosecutor
related explicitly to violence against Roma or others regarded as Gypsies in
Kosovo. Mr. Haradinaj, who was Prime Minister of Kosovo on the day the
indictment was brought, resigned and turned himself over to the Hague tribunal.
He has since been released from custody.
The Haradinaj indictment is one of two indictments by the ICTY against members
of the Kosovo Liberation Army (KLA) or others involved in the violent struggle
against Serbian authorities over Kosovo.4 No other indictments make reference to
3
Haradinaj ICTY Indictment, supra note 1.
4 The other being an indictment against Kosovar Albanians for crimes against humanity and violations
of the laws and customs of war involving violence against Serb and Albanian civilians in
Lapusknik/Llapushnik Prison Camp of the KLA in the municipality of Glogovac/Gllogoc. This
indictment covered crimes committed from May to July 1998, and does not mention minorities as
victims. See Prosecutor v. Limaj, Bala, Musliu, & Murtezi, Case No. IT-03-66-I, Indictment (24 January
2003, amended 7 March 2003) available at http://www.un.org/icty/indictment/english/limai030307e.htm. In the amended indictment, charges against Murtezi were dropped. In a decision issued
on 30 November 2005 concerning the actions of Bala, Limaj and Musliu, the Court found only Bala guilty
of any acts for which charges had been brought.
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crimes committed against Roma or others regarded as Gypsies. However, similar to
all of the actions brought by the ICTY Prosecutor in matters related to actions by
the KLA, the Haradinaj indictment confines itself to actions carried out by the three
men during 1998.
No indictments have to date been brought by the ICTY against ethnic Albanians or
their allies in connection with acts committed after 10 June 1999, the date of UN
Security Council Resolution 1244 establishing the United Nations Interim
Administration Mission in Kosovo (UNMIK).5 It is increasingly apparent that
indictments for these crimes may never be brought by the ICTY. Queries by the
author to the ICTY, sent on 1 August 2006, as to planned, pending or existing
investigation into anti-minority violence in Kosovo after 10 June 1999, have not to
date been answered. Statements by ICTY officials in August 2006 point toward the
conclusion that no one will ever be indicted by the ICTY for post-June 1999 actions
against minorities in Kosovo.6
Kosovo courts have not engaged adequately to prosecute persons for the massive
crimes committed after June 1999. According to Amnesty International, only 23
5 Chief Prosecutor Del Ponte announced on 21 March 2001 that her office had opened an investigation
into “activities against Serbs and other minorities in Kosovo by unidentified Albanian armed groups
from June 1999 until the present…..” Press Release, Statement by the Prosecutor, Carla Del Ponte,
U.N.Doc. FH/P.I.S./578e (21 March 2001) available at http://www.un.org/icty/pressreal/p578-e.htm.
Half a year earlier, in an address to the Security Council, Del Ponte acknowledged receiving “passionate
pleas to investigate allegations of continuing ethnic cleansing against the remaining Serb and Roma
population.” Asking the Council to modify the Tribunal statute to cover the alleged crimes (see section
on the “armed conflict” jurisdiction requirement, below), Del Ponte expressed her office’s belief in the
importance of pursuing these allegations: “We must ensure that the Tribunal’s unique chance to bring
justice to the populations of the former Yugoslavia does not pass into history as having been flawed and
biased in favour of one ethnic group against another. Besides, if we obtain this morally justified and
necessary extension of our mandate, the Tribunal might become a deterrent factor against the ongoing
ethnic-cleansing campaign in Kosovo.” Address to the Security Council by Carla Del Ponte, Prosecutor
of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, to the UN Security
Council, U.N.Doc. JL/P.I.S./542-e (24 November 2000). The ICTY has however indicated that it did not
intend to be “the main investigatory and prosecutorial agency in Kosovo,” and Del Ponte has stated that
“[t]he vast majority of crimes committed during the armed conflict will have to be dealt with by the local
Kosovo police and judiciary, currently under the mandate of the [UNMIK].” Press Release, Statement by
Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, on the
Investigation and Prosecution of Crimes Committed in Kosovo, U.N.Doc. PR/P.I.S./437-E (29 September
1999).
6 “In response to a question as to whether the OTP was conducting an investigation into the tape that
had recently been broadcast showing a Serb civilian being killed by Croatian soldiers, Nikiforov stated
that it was regrettable that the tape had surfaced now just as the OTP had finished its investigative
mandate.”
See
ICTY
Weekly
Press
Briefing
(9
August
2006)
available
at
http://www.un.org/icty/briefing/2006/PB060809.htm.
2007]
Birth of a Nation: Kosovo and the Persecution of Pariah
85
prosecutions for war crimes have taken place since 1999, the majority before 2002.7
Since 2002, only six prosecutions for war crimes have taken place, and “[i]n very
few cases have the victims been non-Albanians.”8
Serbian authorities have brought a number of indictments against Kosovo
Albanians for crimes committed during this period, but they have not yet secured
the cooperation of the international community in carrying out prosecutions. For
example, the Serbian government has posted an international arrest warrant for Mr.
Agim Ceku, a former commander of the Kosovo Liberation Army. Mr. Ceku has
been arrested twice, once by Slovene police and once by Hungarian police while
traveling through those countries. On both occasions he was release following
rioting by Albanians in Pristina, and the apparent intervention of powerful
government forces opposed to acting on a Serbian arrest warrant and in response to
the threat of unrest in Kosovo should he remain in custody or be prosecuted. On 10
March 2006, Mr. Ceku was elected Prime Minister of Kosovo, an office he currently
holds. In addition, according to Amnesty International, UN authorities have
actively intervened to obstruct Serbian prosecutions of Albanians suspected of war
crimes:
Amnesty International is particularly concerned at
the extraordinary intervention by the SRSG in
challenging the jurisdiction of courts in Serbia over
cases involving war crimes allegedly committed in
Kosovo in June 1999. For example, on Wednesday
3 April 2006, the Kosovo daily Koha Ditore reported
that the SRSG had written to the Serbian
authorities challenging the jurisdiction of the
Belgrade War Crimes Chamber over proceedings
against Anton Lekaj.
Anton Lekaj was arrested in Montenegro in August
2004 (in connection with the theft of a car) and
transferred to Serbia under an indictment by the War
Crimes Chamber at the Belgrade District Court dated 7
July 2005, (KTRZ No. 7/04). He was charged with war
crimes against the civilian population, including the
rape of a minor Roma female at the Hotel Pastrik in
7
Amnesty International, Kosovo (Serbia and Montenegro) United Nations Interim Administration
Mission in Kosovo (UNMIK): Briefing to the Human Rights Committee, 87th Session, July 2006, 15 (2006).
8
Id. at 15.
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Prizren; the beating and other ill-treatment of two
individuals on 13 June 1999 at the same hotel; the
inhuman and or degrading treatment on the night of 13
and 14 June of a male detainee; and the transfer of four
Romani men to another location on the night of 15 June
1999, and the murder of three of those men. Proceedings
against Anton Lekaj opened at the War Crimes
Chamber at Belgrade District Court on 18 November
2005. To date, the trial has reportedly been conducted in
accordance with international standards. [Italics
retained from original].
In a meeting with the UNMIK Office of Legal
Affairs (OLA) on Thursday 4 April 2006, Amnesty
International delegates were informed that the
OLA considered the indictment of former KLA
member Anton Lekaj (and three others) to be
unlawful, having been made by the “parallel
courts”, established in Niš in Serbia proper
following the withdrawal of the Serbian authorities
from Kosovo in July 1999.
Amnesty International considers that, irrespective
of the issue of UNMIK’s recognition or not of the
parallel courts, 35 Serbia is obliged to investigate
violations of international humanitarian law which
took place on its territory. The organization also
notes that even if Serbia were a separate state,
under the principle of universal jurisdiction, it
would have a duty to investigate and prosecute
grave crimes under international law, or if they fail
to do so, extradite the suspect to a state willing and
able to do so. As far as the organization is aware,
neither UNMIK police nor the Department of
Justice have taken any measures to date to open
investigations into allegations against Anton Lekaj
or three other men indicted by the Serbian
authorities. The OLA informed Amnesty
International that if the Serbian authorities were to
provide UNMIK with the evidence, they would
“look into it”. Amnesty International members
have repeatedly written to the UNMIK police (both
2007]
Birth of a Nation: Kosovo and the Persecution of Pariah
87
the Missing Persons Unit, and Central Criminal
Investigations Unit) since 2000 urging them to
open investigations into some of the allegations –
(specifically the extra-judicial execution of three
Romani men, including Rexh Shalla,) – included in
the indictment. This information was based on an
eye-witness account of the extra-judicial
executions.9
As a result of these and related concerns, the United Nations Human Rights
Committee, in their observation report released in July 2006 and submitted by
UNMIK on the state of the administration’s compliance with prevailing human
rights norms, noted concern with the “continuing immunity enjoyed” by
perpetrators of war crimes and crimes against humanity prior to June 1999, as well
as “ethnically motivated crimes perpetrated since … including those committed in
March 2004.”10 The Committee also signaled concerns that “some 1,713 ethnic
Albanians and 683 non-Albanians, including Serbs, Roma, Ashkali and Egyptians,
continued to be reported as missing as of May 2006, that low priority has been
given to investigations of disappearances and abductions by the Missing Persons
Unit of the UNMIK police and, since 2003, by the Central Criminal Investigative
Unit, and that in closed cases of disappearances and abductions perpetrators were
rarely, if ever, prosecuted and brought to justice.”11 With reference to both before
and after NATO’s actions, the Committee regretted “the failure of UNMIK to fully
cooperate with the International Criminal Tribunal for the Former Yugoslavia.”12
9 Id. At 15-7. Note: the events at issue in the Lekaj prosecution concern torture in the Hotel Pashtrik in
Gjakove/Djakovica, not Prizren, as stated here. All other information included in the Amnesty report is
beyond dispute.
10 Human Rights Committee, Eighty-Seventh Session, Geneva, Switz., 10-28 July 2006, Concluding
observations of the Human Rights Committee, Advanced non edited version, Kosovo (Republic of Serbia), ¶¶1213, U.N.Doc. CCPR/C/UNK/CO/1 (25 July 2006).
11
Id.
12
Id.
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C. Factors Establishing a Human Rights Vacuum for Minorities in Kosovo
Several factors have been crucial in creating a human rights vacuum in Kosovo
with respect to minorities. These include: (1) the lack of any policy or action to
disarm extremists in Kosovo; (2) the capitulation by the international authorities in
Kosovo to the threat of armed violence by majority Kosovo Albanians; (3) the role
of the UN administration in insulating itself from any form of liability or
culpability; (4) the tendency in Kosovo to blame internationals for all issues,
including the total lack of engagement by the Kosovo judiciary on minority rights
issues; and (5) the role of Western European states, and in particular Germany, in
prioritizing the forced return or return under pressure of Kosovars (including
vulnerable minority Kosovars) over other goals in Kosovo.
From the beginning, UN authorities and international police forces, such as the
NATO-led Kosovo Force (KFOR), have left all parties fully armed and indeed have
worked with the most extreme ethnic cleansers in Kosovo, particularly those on the
Albanian side.13 The logic of this policy has been simple: UN authorities and the
international community broadly perceived the primary threat to be a reinvasion of
Kosovo by Serbian forces. As such, they have never pursued actions to disarm
extremists in Kosovo. The effect is an effort to secure results equivalent to those
sought in Northern Ireland, without any of the actions pursued in Northern Ireland
to secure that goal.
Having left the KLA and others fully armed, international authorities capitulated to
majority Kosovars following the organized rioting of March 2004, in which
minorities, their homes and their churches were set upon by huge mobs of armed
ethnic Albanians.14 On 17 November 2004, the UN Secretary General presented a
Letter to the President of the Security Council. Appended to the Letter was a report
by Norwegian Ambassador Kai Eide. The report recognized that the “international
community failed to read the mood of the majority population, its frustrations and
impatience. It also failed to understand the potential for extremists to mobilize
13 Commenting on Prime Minister Ramush Haradinaj’s resignation to face war crimes charges in the
Hague in March 2005, then-SRSG Søren Jessen-Petersen said, “Thanks to Ramush Haradinaj's dynamic
leadership, strong commitment and vision, Kosovo is today closer than ever before to achieving its
aspirations in settling its future status. Personally, I am saddened to no longer be working with a close
partner and friend.”
14 Human Rights Watch estimates that approximately 51,000 Kosovars took part in the March 2004
rioting. See Human Rights Watch, Not on the Agenda: The Continuing Failure to Address Accountability in
Kosovo Post-March 2004, Vol. 18, No 4(D), p. 5 (May 2006).
2007]
Birth of a Nation: Kosovo and the Persecution of Pariah
89
support for ethnic violence …”15 The report, the letter and indeed UN policy then
proceeded to draw an entirely counter-intuitive, and pernicious conclusion: the UN
needed to leave Kosovo as quickly as possible. This dramatic capitulation to armed
violence and the threat of further armed violence was couched in clouds of UNspeak: “The ‘standards before status’ policy should be immediately replaced by a
dynamic priority-based standards policy within the overall framework of the
integrated strategy in order to facilitate orderly future status discussions…”16
Minorities in Kosovo perceive clearly the meaning of such jargon; they will be
abandoned, persecuted, and that any efforts to see the perpetrators punished are
now being cancelled.17
A third factor contributing to the current human rights vacuum in Kosovo is the
immunity of UN officials from any form of culpability for human rights violations,
combined with very serious difficulties in holding KFOR accountable. KFOR is
under the national military command of the countries providing the troops in
question (Italy, Germany, France, United Kingdom, United States, and others).
Pursuing justice where responsibility lies with KFOR officials is therefore difficult.
However, these difficulties pale in comparison with efforts to hold UN officials
accountable, since they are both unelected, and immune from prosecution.18
The immunity of UN officials from prosecution, and therefore from any form of
real accountability is not an idle, theoretical concern, but one with real and direct
implications. One especially glaring illustration of this concern is the placement by
UN officials of displaced Roma from the Mitrovica settlement, which was burned to
the ground by ethnic Albanian mobs in 1999, in housing situated in extremely toxic
environs in the towns of Zitkovac/Zhikoc, Cesmin Lug/Cesminlukë and Kablare,
approximately two kilometers from the Trepca Mines factory complex. The World
Health Organization (WHO) has declared a health emergency for displaced persons
in these camps. Although the camps were reportedly intended as temporary
housing for victims of the 1999 looting and burning of the Romani settlement in
Mitrovica, they continue to exist today under UN supervision, despite known and
Letter from the Secretary-General addressed to the President of the Security Council (includes the Eide
Report), p. 10, U.N.Doc. S/2004/932 (17 November 2004).
15
16
Id. at 6.
17
ERRC files NKos 447/2004-662/2006.
18 The UN Charter grants broad-based immunities to the UN and its employees. U.N. Charter art. 105
para. 1 and 2. See also Convention on the Privileges and Immunities of the United Nations (“CPIUN”) ,
U.N.Doc. A/Res/22 (I) (13 February 1946).
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documented health hazards arising from toxic lead contamination.19 Since the
camps were established more than six years ago, dozens of inhabitants have fallen
ill from lead-related illnesses, and two people, including at least one young child,
have died. 20
It is probable that UNMIK knew of the scale of the health emergency as early as
2000, when the WHO issued its first report analyzing the effect of lead pollution on
the Mitrovicë/Mitrovica region. The report found that all children and most adults
living around the industrial site had blood lead concentrations exceeding the
permitted limits.21 Specifically, the researchers found a higher than average lead
concentration among the RAE communities as compared with the non-RAE
population.22 By October 2004, the WHO had declared the area in and around the
internally displaced person (IDP) camps uninhabitable, issuing a report that
revealed that the soil in Zitkovac/Zhikoc camp was 100.5 times above
recommended levels, while in Cesmin Lug/Cesminlukë, the levels exceeded 359.5
times those considered dangerous to human health.23 Although UNMIK is
authorized by UN Security Council Resolution 1244 to act as the civilian
administration in Kosovo,24 there is effectively no domestic remedy available for
human rights violations committed by it or any other UN organ operating in
Kosovo. In July 2005, the ERRC sent a letter to UN Secretary General Kofi Annan
urging him to lift immunity for any persons responsible for crimes resulting from
19 Adverse health effects of lead exposure include: damage to the brain and nervous system;
reproductive abnormalities in males and females; high blood pressure; memory and concentration
problems; muscle and joint pain; and digestive irregularities. In children, the effects can be even more
detrimental and include; behavior and learning problems; slowed growth, hearing problems; headaches,
and damage to the brain and nervous system. See, e.g., Y. Finkelstein, M.E. Markowitz, and J.F. Rosen,
Low-level lead-induced neurotoxicity in children: an update on central nervous system effects, BRAIN RESEARCH.
BRAIN RESEARCH REVIEWS (BRAIN RES BRAIN RES REV), 1998 Jul; 27(2):168-76. See also G. Winneke and U.
Kramer, Neurobehavioral aspects of lead neurotoxicity in children, CENTRAL EUROPEAN JOURNAL OF PUBLIC
HEALTH (CENT EUR J PUBLIC HEALTH), 1997 Jun;5(2):65-9.
20
ERRC files NKos 387/2004-665/2006.
Sandra Molano and Andrej Andrejew, First Phase of Public Health Project on Lead Pollution in Mitrovica
Region, 17 (November 2000).
21
22
Id. at 13, 18 and 19.
Memorandum of the World Health Organization, Capillary Blood Lead Confirmation and Critical LeadRelated Health Situation of the Roma Camps Children, 3 (22 October 2004).
23
24
S. C. Res. 1244, U.N.Doc. S/RES/1244 (10 June 1999).
2007]
Birth of a Nation: Kosovo and the Persecution of Pariah
91
the negligent or malicious failure to move RAE persons from the contaminated
areas.25 To date, the UN has not done so.
During 2006, UNMIK pressured all but a handful of camp inhabitants into moving
to Osterode, a new camp just a stone’s throw from the Cesmin Lug/Cesminlukë
camp and still in the shadow of the massive Trepca mine tailings. In Osterode, as of
December 2006, the displaced RAE live in former barracks, containers, and in
converted garages previously used for housing KFOR vehicles. Living conditions
differ little from those that prevailed at the three toxic camps.26
Although a number of institutions in Kosovo, including the judiciary, are
independent, there is a tendency at the local level to blame the international
community for all failings in Kosovo, whether or not blame in any given area
should be assigned to international agencies. Thus, although the question whether
or not to prosecute war criminals for perpetrating anti-minority violence is first
and foremost an issue for Kosovar institutions, local interlocutors generally blame
internationals for inaction in this area.
As a result of intensely anti-foreigner moods prevailing in Western Europe, a
number of states have prioritized the forced return of minorities to Kosovo over
establishing a satisfactory human rights environment in Kosovo. In April 2005,
Killian Kleinschmidt the then-head of UNMIK’s Office for Communities and
Returns signed an agreement with the German Foreign Ministry on “forced
returns” of Ashkalis, Egyptians and certain other categories of minority, despite the
absence of any indication that conditions in Kosovo were in place for such actions.
The UN High Commissioner for Refugees (UNHCR) has refused to cooperate with
UNMIK in the integration of forced returnees, as a result of its principled
disagreement with UNMIK on the matter. At other times, the racism driving
international policy has remained confined to the backroom, as when visiting
German officials reportedly told UN administrators in Kosovo that “the German
people can accept these Albanians, but they will never tolerate Gypsies.”27
Commitments to ensure the voluntary return of all, in safety and dignity, to their
respective place of origin, are not seriously acted upon. KFOR is unable to secure
the safety of those still present in the territory. The forced returnees, having
Letter from Jean-Marie Guéhenno, Under-Secretary-General for Peacekeeping Operations to Claude
Cahn, Acting Executive Director of the European Roma Rights Centre (9 November 2005). On file at the
ERRC.
25
26
ERRC files NKos 447/2004, NKos 449/2004, NKos 557/2005 and NKos 664/2006.
27
The UN official in the meeting at issue requested anonymity.
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forfeited their property, enter a twilight existence in one of Kosovo’s enclaves, halfhiding, half imprisoned.
D. Anti-Discrimination Law in Kosovo
Kosovo currently has one of the worlds most comprehensive and detailed domestic
laws banning discrimination, including racial discrimination. The AntiDiscrimination Law (ADL) entered into effect on 19 September 2004.28 The Law
appears to comply with the European Union’s Council Directive 2000/43/EC of 29
June 2000 implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin (RED), and Council Directive 2000/78/EC of
27 November 2000 establishing a general framework for equal treatment in
employment and occupation prohibiting discrimination on the grounds of religion
or belief, disability, age or sexual orientation (FED). Kosovo’s ADL goes far beyond
the protections set out in these two European Union directives. For example, while
the RED prohibits direct or indirect discrimination based on racial or ethnic origin,
Article 2 of the ADL prohibits direct or indirect discrimination based on any
ground. Second, while the RED is limited in the scope of the rights which are
protected, Article 4 of the ADL prohibits direct or indirect discrimination in access
to and enjoyment of any right set forth by law. Additional rights specified under
Article 4 include fair treatment before tribunals and all other organs administering
justice, personal security, participation in public affairs including the right to vote
and be voted for, and access to public places. The ADL also provides that
segregation as defined in Article 3(f) shall be deemed to be discrimination in
violation of the principle of equal treatment as defined in Article 2(a) of that law. In
addition, ADL provides in Article 9.4 that all monies collected through the
imposition of penalties on those who have violated its provisions shall be placed in
a fund for the purposes of supplying free legal assistance to any natural or legal
person whose right to equal treatment is violated.
While Kosovo authorities must be commended for adopting the AntiDiscrimination Law of September 2004, similar praise is not merited with respect to
efforts at implementing that law: as of late 2005, actions to apply the ADL were
limited or non-existent, and no one had been brought to justice under it. 29
For now, discrimination against RAE in Kosovo is widespread and overwhelming.
Unemployment in Kosovo is generally high. Although no adequate statistical data
28 UNMIK Regulation On the Promulgation of the Anti-Discrimination Law adopted by the Assembly of
Kosovo, UNMIK/REG/2004/32 (20 August 2004).
29
ERRC files NKos 32/2002-436/2006.
2007]
Birth of a Nation: Kosovo and the Persecution of Pariah
93
exists on unemployment among minorities, empirical evidence and field research
by the ERRC indicates that it is close to 100% in many places for RAE minorities.
Apart from a lucky handful of individuals who work in civil service and municipal
offices, very few others have any form of regular employment. Many RAE
individuals lack any form of work at all. The Ombudsperson Institution in Kosovo
noted in a recent press release that in a meeting with community minority leaders,
all agreed that their citizens are routinely overlooked when employment vacancies
were posted.30 According to RAE testimonies in all municipalities visited by the
ERRC, RAE (as well as minorities in general) were entirely or nearly entirely
excluded from the workforce after privatisation of Kosovo enterprises.31
High levels of unemployment and lack of access to social benefits have resulted in
severe deprivation for many RAE families. Most of the returnee community are
unemployed and often do not have money to buy food.32 These persons must
therefore resort to scavenging from garbage containers.33
The question arises as to how it is possible that minorities in Kosovo live under
durable, race-based oppression when an extensive legal framework exists to
provide victims a mode for challenging their oppression. One answer must be that
the threat of violence is too present, and the rule of law too weak, for anyone to
consider seriously using the ADL as a mode to secure redress.
E. Conclusion
At the end of “Operation Horseshoe,” despite the massive violence to which
Kosovo had been subjected, the Romani community of Kosovo, among Europe’s
most vibrant Romani communities, was largely intact. Today, it is for the most part
destroyed. While international forces looked on, it was destroyed by ethnic
Albanians, under international governance in the forms of United Nations
administration. These same powers have allowed a situation to continue in which
this destruction has not been reversed, victims have been left without due legal
remedy, and perpetrators have been left to enjoy the fruits of their plunder, as well
as, in many cases, high office in the new Kosovo.
30 Press Release, Ombudsperson Institution in Kosovo, Non-Serbian Minority Representatives Discuss
Ongoing Human Rights Issues with Ombudsperson Institution (7 July 2004). The Ombudsperson also
reported that, as an urgent solution, several community leaders described situations in which citizens
were forced to sell their property and homes as an emergency source of income.
31
ERRC files NKos 447/2004, NKos 449/2004, NKos 557/2005 and NKos 664/2006.
32
ERRC files NKos 301-307/2006.
33
Id.
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It is unclear what the immediate future holds for RAE minorities in Kosovo.
Contingency plans reportedly exist for a possible mass exodus of minorities –
including RAE – to rump Serbia in the days and weeks following expected
independence. Others speculate that if an initial burst of nationalist euphoria on the
part of ethnic Albanians can be weathered, including racially motivated attacks,
then it may later be possible to envision the reconstruction of a life in Kosovo for
RAE and other minorities.
The optimistic scenarios must however contend with some unsettling realities.
First, the halls of power in the new Kosovo will be occupied by a number of
persons implicated in very serious violent crimes. This means that if Kosovo
remains a peaceful polity, it will not be one at peace, in any real sense of the word.
Secondly, the massive criminal violence of the recent past has left an indelible
legacy on ethnic relations in Kosovo. RAE are oppressed in Kosovo in the most
fundamental sense of the word. The treatment to which they have been subjected is
internalized and self-distorting. In this context, minority rights cannot be exercised
in any meaningful sense without being rendered a parody of themselves.
Finally, the legacy of Kosovo’s violent seizure, undertaken with the complicity of
the international community, will not go away. Kosovar extremist elites have
“gotten away with it”, a fact noticed by RAE and other groups.34 The lesson this
episode, throughout the Balkans, is that armed insurgency is a worthy and
rewarding undertaking, provided the international community can be brought in to
assist in the pursuit of the insurgency’s goals. 35 From the point of view of early
2007, that is a worrying outcome.
34
ERRC files NKos 447/2004-NKos 664/2006.
35
ERRC files NKos 447/2004, NKos 452-458/2004, NKos 557-585/2005 and NKos 626-664/2006.
ARTICLES
SPECIAL ISSUE – WHAT FUTURE FOR KOSOVO ?
Book Review
Michaela
Salamun’s
Democratic
Governance
International Territorial Administration (2005)
in
and
Daniel Sven Smyrek’s Internationally Administered
Territories – International Protectorates? (2006)
By Hartmut Pürner*
A. On A Personal Note …
I worked seven years in the OSCE missions in Bosnia-Herzegovina and in Kosovo.
In the last stage, I was Deputy Director of the Democratization Department with
OmiK/UNMiK pillar III. Accordingly, he dealt intensively with the practical
questions of human rights, democratisation and the transfer of responsibilities in
internationally administered territories. I returned with a lot of questions. Some of
those now form the basis of my research for a PhD thesis on Municipal Governance
in Kosovo. I have happily accepted the GLJ’s invitation to write a review of two
recently issued books, Michaela Salamun’s Democratic Governance in International
Territorial Administration1 and Daniel Sven Smyrek`s Internationally Administered
Hartmut Pürner M.A, studied Law, History, German Literature and Geography at Julius-Maximilians
Universität Würzburg. M.A (phil) on the usage of history in national-socialistic propaganda shown at
the example of Würzburg regional newspapers. Erstes Juristisches Staatsexamen at Friedrich-Alexander
Universität Erlangen-Nürnberg. Currently PhD student at Rheinische Friedrich-Wilhelms-Universität
Bonn. From 1997 to 1999 Human Rights and Democratization Officer with OSCE Mission in BosniaHerzegovina. Head of Field Office. 2001 to 2005 Democratization Officer, Team leader Municipal
Government Support and finally Deputy Director/Democratization Department with OSCE Mission in
Kosovo. Lives in Berlin. [email protected].
*
1 MICHAELA SALAMUN, DEMOCRATIC GOVERNANCE IN INTERNATIONAL TERRITORIAL ADMINISTRATION,
INSTITUTIONAL PREREQUISITES FOR DEMOCRATIC GOVERNANCE IN THE CONSTITUTIONAL DOCUMENTS OF
TERRITORIES ADMINISTERED BY INTERNATIONAL ORGANISATIONS (2005).
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[Vol. 08
Territories - International Protectorates?2 The authors focus on different questions, yet
they unavoidably touch upon each other in the topics which personally interest me
the most. This made it intriguing to read their works in tandem.
B. The Content of the Two Volumes in Overview
In the first chapter of her dissertation submitted to the university of Graz, Austria,
Michaela Salamun aims to “establish the reasons for why governance in such
territories has been based on democratic principles only in part.”3 In chapter two
she deals with the legal framework in historic and contemporary International
Territorial Administration (ITAs) examining the scope of the authority of
governance of the international administrations versus the scope of the authority of
the local institutions. In chapter three, she looks at the democratic substance of
these documents. She concludes with a final chapter providing proposals for the
improvement of the democratic quality of international administrations.
Smyrek, after an introduction, examines the “notion of sovereignty.” In his third
chapter, he runs through the historical examples of ITA, establishing their
sovereignty status. He dedicates a chapter to Kosovo alone. In his chapter E he
reflects on “democracy and international administration of territories,” using what
he collected en route while following the red line of his analysis. In chapter F he
summarises his conclusions.
C. Salamun’s Democratic Governance – The Conumdrum of Sovereignty, Peace
and Democracy
A proclamation is at the centre of Salamun’s thesis: “Indeed, I believe that the
concept [of democratic governance] should be applied not only with regard to the
decision making processes of the local institutions of self-government, [...], but also
with regard to those of the international institutions.”4 In a nutshell, her thesis aims
at proving that this political conviction can be underpinned with legal arguments in
the sphere of international law.
However, this puts her in the difficult position of driving her writings forward
against the very early findings of her book. She acknowledges that the concept of
DANIEL SVEN SMYREK, INTERNATIONALLY ADMINISTERED TERRITORIES - INTERNATIONAL
PROTECTORATES? AN ANALYSIS OF SOVEREIGNTY OVER INTERNATIONALLY ADMINISTERED TERRITORIES
WITH SPECIAL REFERENCE TO THE LEGAL STATUS OF POST-WAR KOSOVO (2006).
2
3
SALUMUN, supra note 1, at 11.
4
SALUMUN, supra note 1, at 43.
2007]
Book Review
97
democracy is state-centred, while most ITA lack the classic elements of statehood.
She concedes that there is no commonly agreed concept of democracy beyond the
state. That the principle of self-determination is potentially “in conflict with ... the
principle of sovereignty and the maintenance of international peace and security”5
is recognised. In consequence she cannot help but conclude that “the concepts of
international law governing the territorial administration of international
organisations...do not involve an obligation...to base their authority on principles of
democratic governance."6
Despite this, she tries to make the point that concepts of international law in
general “imply a certain democratic foundation, which aim at creating the
conditions for the exercise of democratic governance.“7 For this purpose she
compiles the concepts of the “prevention of the adverse effects of war on the
population,” the “application of the principle of the right to self-government,”
“reestablishment of stability,” “conflict resolution and respect for human rights”
and “democracy-building.“
Yet, she disregards the fact that these concepts often conflict with each other in the
reality of internationally administered territories. Salamun is aware of the necessary
caveats, yet she hides them in her footnotes: “However, in the initial period of
peace-building operations established immediately after a war or armed conflict in
a power vacuum, organised crime and mafia-like structures, which are inherently
opposed to democracy, may be strengthened until the power vacuum is
overcome.”8 And, “there cannot be progress in terms of democracy for as long as
the old ethno-national elites are in power despite free elections.”9
All this could have been the starting point for an interesting discussion. Can a
peace-building mission start with democratisation right away, or does the
establishment of peace and security take preference? Is democratisation
conditioned on resort to the rule of law?
She fails to address these questions. The belief that “early devolution allows the
local population to learn from their experience and helps to prevent the
5
SALUMUN, supra note 1, at 45.
6
SALUMUN, supra note 1, at 49.
7
SALUMUN, supra note 1, at 49.
8
SALUMUN, supra note 1, at 57 footnote 256.
9
SALUMUN, supra note 1, at 63 footnote 295.
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administrative equivalent of aid dependency,”10 however, does not seem to be a
sufficient answer in itself. The same is true for the argument that a “dictatorship of
virtue” exerted by international administrators, would be counterproductive, as it
sets the wrong example by allowing local politicians to avoid compromise. While
all of this is true for the long run, what, if the “mistakes” bring about the
reoccurrence of the “adverse effects of war,” de-stabilisation or human rights
violations, in the short run?
In this context, it is regrettable that the author only superficially discusses what she
calls the “perception of the absence of democratic maturity of certain local
elements.” She makes reference to the League of Nations’ mandate system and the
criteria developed during its tenure, such as “stable government and
administration, the capability to sustain territorial and political independence, to
keep public order and security[…], a legal system and a court organisation that
ensures everybody ordinary justice.”11 She would have highlighted the relevance
of these historical criteria if she had acknowledged that they have been used by
UNMiK in Kosovo to formulate “benchmarks,” followed by “standards” for
Kosovo,12 and can also be found in the EU accession criteria.13
The complex, arguably even inappropriate notion of ”maturity” raises salient
questions. Should the fulfilment of certain minimum standards be a pre-condition
for an increased involvement of local actors in the management of the ITA? Can
such standards be effectively measured - or only “perceived”? What role is played
by the mentioned mafia-structures and nationalistic elites in making
determinations of “maturity”?14 What is the common local perception of
"democracy" and “human rights”? How does this perception relate to the local
cultural, economic and social context? These are questions reaching beyond the
law, reaching out to political science, history and sociology, and touching upon the
prerequisites of a democratic society in general, yet they can not be set aside.
While her thesis at this point does not appear convincing in substance, Salamun
adds to the woes of her readers by a somewhat blurred style of argumentation. To
start with, the author grapples with why there is a “democratic deficit” in
10
SALUMUN, supra note 1, at 59; see id.
11
SALUMUN, supra note 1, at 64.
12
http://www.unmikonline.org/standards.
13
http://ec.europa.eu/enlargement/glossary/terms/accession-criteria_en.htm.
14 An interesting reader on this topic for the Balkan region is: NORBERT MAPPES-NIEDECK, BALKANMAFIA (2nd ed. 2003).
2007]
Book Review
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international administration before moving on to argue, on the basis of her case
studies, that this deficiency indeed exists. In addition, conclusions seem sometimes
to be drawn for convenience rather than as a result of proper legal argumentation,
e.g. when the author opts for a sui generis status for territories administered by
international organisations because this “has the potential to take account of the
unique division of authority in each territory between the former state, the local
institution, the international organisation(s) and the population.”15 On other
occasions, the reader is suddenly left alone with a mass of citations from a broad
corpus of literature16 by an author obviously reluctant to take a clear position
herself.
The analysis of her sources and examples remains unsystematic. Sometimes
Danzig and the Saar are used as historic examples to illustrate a point, next time
Kosovo, Bosnia and Herzegovina or Cambodia might be the better pick. Her criteria
for the selection of certain examples from a broad range of case studies never
becomes clear, in particular as she does not sufficiently explain why historical
examples from a period before the existence of the UN Chartrt, the ICCPR and the
ECHR matter at all.
Whether all examples are dealt with in a sound way is then already a secondary
question, which can be left to historians. However, on some instances, there is
reason for severe doubt. At one point, Salamun states that “the main political
motive for the internationalisation of the Saar Territory consisted in guaranteeing
France the exploitation of the coal mines situated in the Bassin, as part of the
reparation payments of Germany.“17 How she could then justifiably conclude that
“the internationalisation of a territory itself usually implies that governance is
exercised to a greater extent for the benefit of the population than before
internationalisation”18 simply defies understanding.
Fortunately, the centre part of Salamun’s work provides a clear structure. Salamun
categorises international administrations along the lines of restricted, partial or
comprehensive power; these categories are set against the background of a
complete absence of co-governance of local institutions, mere consultative, partial
15
SALUMUN, supra note 1, at 41.
16 Most prominently, see C. Stahn, The United Nations Transitional Administration in Kosovo and East Timor:
A First Analyis, in 5 Max Planck Yearbook of United Nations Law (J.A. Frowein and R Wolfrum eds.,
2001).
17
SALUMUN, supra note 1, at 51.
18
SALUMUN, supra note 1, at 51.
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and largely independent decision making powers. Whilst for local institutions a
separation of powers usually existed, she finds, legislative, administrative and
judicial powers lay exclusively in one hand on the side of the respective
international governor, High Representative or SRSG. The independence of the
judiciary is often limited by the fact that the head of the international
administration appoints and dismisses judges. Popular sovereignty is often limited
as “most internationalised territories [...] were established by treaties inter alios” and
“were adopted absent popular participation.”19 While political, legal and financial
accountability of the local institutions is mostly provided for, the international
administration is generally not accountable to the local population. On paper,
political rights are guaranteed, as are minority rights.
The author’s findings, albeit in general not to be contested on a factual level, are
rarely analysed in their broader political context. This is a pity, as Salamun
highlights interesting parallels and similarities in territories and circumstances
distant from each other in time and space, such as Danzig and Bosnia-Herzegovina.
Obviously, a check list is ticked off, shortcomings are noted but rarely explained.
On the side of local institutions, the author is content to tell her readers that certain
things have been laid down on paper, but she never examines how they work in
reality. Salamun describes over two pages the Municipal Communities Committees
in Kosovo as a means of minority protection. Yet, despite availability, she does not
address reports that hint that they might simply not function as they should.20
Arguably, one need not go into such detail when writing such a dissertation – into
detail which would probably have required some field research. But even a quick
look at the utterly diplomatic and vague Secretary General’s reports to the Security
Council, published on the UN website could have provided some hints21 on the
realities of the local part of the international administrations.
Especially when determined to stick to a concept of democracy which “relies on a
participatory approach by emphasizing the principle of popular sovereignty in
institutional decision-making processes,”22 a detailed analysis of local situations is
indispensable. The question whether there are legitimate and competent local
actors, committed to democracy and human rights must be answered before
lamenting over their lack of competences. A thorough analysis of both the
19
SALUMUN, supra note 1, at 39.
“Assessment
of
Municipal
Community
http://www.osce.org/documents/mik/2004/03/2335_en.pdf.
20
21
http://www.unorg/Docs/sc/.
22
SALUMUN, supra note 1, at 39.
Committees,”
available
at
2007]
Book Review
101
international and local part of ITAs could provide a good starting point for
developing proposals to enhance democratisation.
Yet, her proposals for “democratisation of governance in international territorial
administration” in her final chapter are exclusively proposals for the
democratisation of the international part. Her proposals will be looked at in more
detail at the end of this review.
D. Smyrek’s Internationally Administered Territories – The Conservative
Approach
The composition of Daniel Smyrek’s thesis, successfully defended at the University
of Tübingen, is pristine. Along the way, every step provides the basis for the next
one. Questions are dealt with once and for all, having been brought to justifiable
conclusions once they surface. The reader might wish to agree or disagree, he might
weigh differently the arguments and view points – but he is never left in the dark
about Smyrek’s reasoning and guiding ideas, about what he stands for and why.
Smyrek provides a concise guide through the existing interpretations of
sovereignty. Based on civil law concepts of the right to ownership, he comes to the
conclusion that “territorial sovereignty designates title to land.”23 This is very
conservative, and Smyrek leaves no doubt that he wants nothing less than to prove
the validity of the applied Begriffsjurisprudenz also for today. Smyrek, thus
revealing himself as an antipode to Michaela Salamun, speaks out against the use of
sui generis categories, “as long as the existing ones are sufficient to allow new
scenarios be categorised.”24
In his chapter titled “Historic Examples,” he wisely lightens his vessel by drawing a
line: “[...] more restricted types of administration will not be considered.”25 He
focuses on Danzig, the Saar, Trieste, Jerusalem, West Irian, Namibia, East Timor,
Bosnia and Herzegovina. He dedicates a chapter exclusively to Kosovo. In a
nutshell, these cases also provide the backbone for Salamun’s work, but with
Smyrek the focus is much more visible. He is able to justify why he selected the
examples, as remote as they might seem, as he demonstrates what they have
contributed to the development of the concept of sovereignty and ITA.
23
SMYREK, supra note 2, at 56.
24
SMYREK, supra note 2, at 137.
25
SMYREK, supra note 2, at 57.
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Danzig for him “represented the first time a universal international organisation,
the League of Nations, participated in the creation of a state.”26 With respect to the
Saar, for the first time the sovereignty of an international organisation, “had been
contemplated and considered to be possible.”27 The planned international
administration of Trieste laid the basis for the “implied powers doctrine.”28 And so
on. He continues with this precision, and while he is also not denying the
particularities of each single case, the evolution becomes comprehensible until he
finally concludes: “During the last century, the concept of sovereignty has evolved
in such a way, that it is no longer a characteristic exclusive to independent states.
Indeed it is also conceivable that universal international organisations may hold
sovereignty.“29 Yet, and this is important with respect to his more detailed
discussion of the Kosovo case, “this has yet to occur.”30 Once more, the reader
might wish to agree or disagree. But Smyrek that opportunity open.
Smyrek remains at the height of his concise and stringent methodology also in his
chapter on Kosovo. Anyone seeking a quick overview on UNMiK and its historic
and political background is advised to study Smyrek, page 172 to 204, with some
reservation regarding his very cursory one-page overview on Kosovo’s history
before 1999. Based on his formerly well argued support of the concept of territorial
sovereignty, “it must [...] be concluded that the power of disposition over Kosovo is
still retained by Yugoslavia.”31 Being faithful to his presumptions, this is nothing
less than coherent. But it also hints at the only major point of criticism that could
be made against Smyrek’s otherwise excellent book. He is realistic in his judgement
that the remaining prospects for compromise solutions, such as a loose federation,
the creation of an Albanian and Serbian entity, are not likely to happen. Instead he
advises the international community to remain involved with a “robust UN
administration of Kosovo, backed by sufficiently strong international troops”32 in
order to buy time until the situation is ripe for compromise.
And it is at this point that Smyrek, who has written so lucidly on legal issues and
history, finally clashes with the political reality of today. Smyrek’s naked
26
SMYREK, supra note 2, at 67.
27
SMYREK, supra note 2, at 75.
28
SMYREK, supra note 2, at 90.
29
SMYREK, supra note 2, at 170.
30
SMYREK, supra note 2, at 171.
31
SMYREK, supra note 2, at 207.
32
SMYREK, supra note 2, at 214.
2007]
Book Review
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conservatism simply does not provide an answer. There will be no compromise on
the status question, even if this would, of course, be the ideal solution. At the same
time, the unresolved status has taken the political processes hostage in the whole
area, blocking progress in Serbia as much as in Kosovo, influencing domestic
politics in FYRoM as much as Bosnia-Herzegovina. After all, it is also a matter of
resources and there are just too many more crisis areas to be attended. The UN
mission has already considerably downsized, the same is true for KFOR. For this
reason, in the seventh year after UN Resolution 1244, the status quo can no longer be
kept up.
E. On a Blue Note: Taking a Closer Look at the Proposals for Democratising ITA
It is in the very last chapter “Principle of Democracy and the International
Administration of Territories,” in which Smyrek officially enters Salamun’s turf.
He deals with the matter much more concisely and he remains on the surface of
general considerations. His merit is, however, that he provides a clear structure for
the topic, something which is so painfully missed with Salamun. He delineates the
“conflict between the international administration of territories and democracy,”33
which Salumun refused to do. Then he turns to the UN’s commitment to
democracy in the Charter, the Universal Declaration of Human Rights and the
Covenant on Civil and Political Rights and declarations of the UN Commission on
Human Rights. Subsequently, he describes where he sees “the limits of democracy”
as imposed by the concept of trusteeship, his interpretation of Chapter VII of the
UN Charter, “the aptitude of the local representatives to share in the governance,
i.e. their democratic maturity” and the role of “benevolent despot.” Finally he
would address the limitation of these limits by the principles of “good governance"
and "human rights standards.”
In doing so, he successfully tries to outline the guiding principles that should be
applied in a process of transfer of responsibilities. Democratic rights may
temporarily be suspended in order to lay foundations necessary for a future stable,
democratic and peaceful self-governing polity. The limitations must not be
disproportionate and minimum standards must at all times be kept and
mechanisms of legal redress for the population must be provided. Finally, the
individual measure depends on the stage of the mission. For this obvious reason,
Smyrek does not propose individual remedies, but leaves them silently to the
management of the respective mission.
33
SMYREK, supra note 2, at 217.
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Salamun in her last chapter is not shy of giving operational advises, but her
proposals must be read very critically. Salamun holds, that “democratisation can be
achieved through the increased involvement of the population in the decisionmaking process by conferring genuine powers of governance on local institutions as
early as possible.34” Should the UN, accordingly, seriously hand over responsibilities
to local actors before they have themselves been democratically legitimised as early
as possible? There is a worrying tendency to perceive local actors under all
circumstances as being more “democratic” and “legitimate” for the simple reason
that they are “local.“ Salamun herself – in footnotes however – made some
mentioning of such dubious but powerful characters, and these truly have to be
kept in mind. Any attitude to claim power as a fair share from the war effort should
not be supported. The message must be this: political power derives from the
public vote, nothing else. As unsatisfying as it in indeed is, a period in which the
international mission operates with local advisors only, can probably not be
avoided
Salamun seems to see the flaw, this is why she recommends that furthermore,
“elections should be conducted as early as possible so that local institutions are
democratically legitimated.”35 This makes her proposal not much more than a
reflection on the existing praxis. It might have been wished that elections would
have happened earlier. But if elections are supposed to be free, fair and equal, if
they are supposed to be well organised, with the involvement of local staff rather
than being only an internationally managed affair, if the environment is meant to
be secure and if the candidates are supposed to be given a minimum time for
campaigning, this process can hardly be accelerated. Last but not least, the
institutions in question might have to be established first.
With respect to Salamun’s proposal to link “moderate” election results to financial
incentives for the population, the comment might suffice that it was exactly one of
the achievements of the OSCE conducted elections on the Balkans to widely
exclude bribery from the election process.
Salamun recommends that “international officials should be employed in the
administration in an advisory function, rather than in leading positions.”36 Again,
this is the desired end result, but there cannot be a wholesale answer regarding the
point in time when this should happen. Firstly, qualified personal must be readily
34
Emphasis is from the reviewer.
35
SALUMUN, supra note 1, at 181.
36
SALUMUN, supra note 1, at 181.
2007]
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available. In East Timor, judges had to be trained guickly in only week-long crash
courses. In Kosovo qualified Kosovo Albanians had been out of official positions
for a decade, therefore expertise had been lost or become outdated. Secondly, to
avoid nepotism and bribery, a proper recruitment process has to be put in place.
Salamun’s next strategic proposal that “transfer...should be performed as fast as
possible and involve all those areas which can be transferred in view of the
administrative capacities [...]“37 again just seems to present the general policy line
on the ground, while of course individual delays could be a matter of discussion.
Also her suggestion that “the areas of human rights and protection of minorities
might retain within the competencies of the international administration until
democratic decision-making processes and the rule of law have been
consolidated”38 is not disputed. But when are they consolidated? Additionally,
human rights protection and protection of minorities can in reality not be as clearly
delineated from general “administrative capacities.” A wide array of simple
administrative activities can have immensely high human rights relevance, such as
the issuing or refusal of certain documents or permits.39
At this point, Salamun simply seems to recommend accelerating the processes,
without considering the possible negative side-effects this might have. Also the
advice “to provide capacity building through training and continuing education of
local officials” does not offer anything new. UN Organisations, OSCE, EAR, US
Aid; UNDP; Council of Europe, UN Habitat, and many more have been heavily
involved for years. No doubt, huge efforts have been made to provide the very
“capacity building” proposed by Salamun.
Much more sympathy can be expressed for her proposals to provide the
international administration with a better system of checks and balances.
Salamun’s proposal to give the ECHR jurisdiction is probably conceivable only for
ITA in Europe, whereas her proposal to establish an independent UN commission
seems to be more universally applicable. Yet, it is not quite clear how this scheme
relates to her later suggestions to make human rights violations of the international
executive punishable at international courts or before a body with comparable
international status.
37
SALUMUN, supra note 1, at 182.
38
SALUMUN, supra note 1, at 182.
39
The reviewer spent weeks over weeks to claiming simple ID cards for minority returnees in BiH.
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For, admittedly very personal reasons, at least in part, I cannot agree with the
general proposal to do away with the immunity of peace keepers and to hold them
responsible before local courts. Immunity from local institutions is an indispensable
condition for effective human rights work with the local institutions. What about a
situation in which a court monitor would be exposed to reprisal prosecution by the
very courts he is supposed to monitor and criticise? Immunity has an important
function and is not a luxury. Finally, it should be noted that immunity in the
mission area does not mean impunity. Immunity can and has been lifted on a
couple of occasions.40 Furthermore, the members of missions may fall under their
own domestic jurisdiction when returning home. Domestic practice might
admittedly differ.
Most problematic is the proposal to extend the jurisdiction over acts, “in which
international officials conduct ITA and issue decisions with immediate effect on the
legal position of individuals.”41 This is a situation where in most legal orders the
state or institution the individual works for would be held liable, but not the
individual civil servant personally, unless the decision equals a crime. Why should
stricter rules apply to officials in ITA?
In principle, I agree with Salamun’s proposal to reduce the role of the international
administrator and restrict him or her to executive powers. Whether it is a
practicable proposal to have the legislative functions in ITA conducted by a kind of
ad hoc parliament consisting of European Parliament and US Congress members
can be questioned. It should be kept in mind that they democratically represent
only their respective electorates. Appointed to the ITA they would not enjoy more
democratic legitimacy towards the population of the ITA than any other
international official. Additionally, the process of identifying these
parliamentarians could easily be caught in the back scene struggle over positions
and influence not too uncommon in the international community. Time and energy,
however, are better spent on the establishment of a local legislature.
The idea of having an international administrator appointed by the local legislature
is not only impracticable, but would give his position a democratic kiss of death.
Salamun points out that internationally administered territories are usually deeply
divided societies. The international administrator can only be effective if he or she
40 CoE Commissioner for Human Rights, 3rd Annual Report January to December 2002, to the
Committee of Ministers and the Parliamentary Assembly; Appendix I Reports and Recommendations,
“Kosovo the Human Rights situation and the fate of persons displaced from their homes,” V.1.5.
http://www.coe.int/commissioner.
41
SALUMUN, supra note 1, at 186.
2007]
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is accepted as impartial and above these divisions. The very moment he or she is
visibly backed by a political or ethnic majority within the territory, all credibility is
lost with the respective minorities, and his or her moral authority and role as a
mediator is harmed.
The question of formal accountability has to be separated from creation of
transparency. To this degree, it indeed could be a good idea to oblige the
international administrator to communicate formally with the ITA’s assembly or
parliament and explain his or her policies and decisions. Yet, there should be
reluctance to give committees investigative powers over mismanagement of the
international part of the administration. The first reason is formal. The international
administration usually does not operate based on local finances, but uses
international funds. To the degree that the proposal to establish a court of auditors
that should scrutinise the activities of the international administration makes sense,
but there is no reason why it should be answerable to the locally elected legislature.
The second reason is political, but also has to do with the long term perspective of
democracy building. The purpose must be to establish local institutions that would
create a sound local tax base, make transparent and justifiable decisions on their
spending and finally create a functional system of checks and balances with respect
to the territories’ own politicians and officials. This is a difficult process as it is, as it
implies to seriously tackle lack of efficiency, incompetence and perhaps even
corruption among its “own” power holders. It is very seductive to avoid this and
put all the energy into scrutinising the international administration as something all
parties could more easily agree on.
Similarly, the concrete proposal to have dismissals of officials reviewed by an
“independent commission of parliamentarians” is doubtful. First, a word about the
dismissal of officials in principle. It is of course a double edged sword. The idea
that an administrator would dismiss even people who were properly appointed or
even elected conflicts with the ideal of democracy. On the other hand, my
observation simply is that in many cases in Bosnia there has been a link between
the dismissal of local politicians and police officers and minority returns to certain
areas. Still, review is necessary.
For this particular purpose, however,
parliamentarians seem to be the wrong group to involve. They are by definition
political and would probably tend to conduct a political evaluation of the case. An
attempt should be made to get the process out of the political grey zone and base
dismissals on legal criteria. The idea to widen the authority of such a commission to
assessing “the effect of every legislative imposition” might be counter-productive.
If so, this evaluation of legislation should happen by the elected legislators in the
respective local parliaments, so that all legislative questions would be in one hand.
The tendency to establish extra commissions and round tables outside of the
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institutional framework has also always the tendency to weaken nascent
institutions.
In a nutshell, Salamun’s recommendations suffer from the same ills as the
remainder of the study. They make sense in the light of the “paper concept” of
democratisation. But they have not been considered in relation to and tested at the
intricate reality on the ground.
F. Conclusions – On Shaky Ground Between Past and Future
Salamun deserves respect for her attempt to try and provide a comprehensive
study on the issue of democratic governance in international territorial
administration on a wide historic and contemporary base of case studies. I wish
Salamun could show a way out, but I did not see real answers to my questions and
I was deeply disappointed with the strategies proposed. Salamun only rarely
analyses. Somehow, she gets lost in the interdisciplinary challenges posed by her
dissertation topic. While abandoning the legal methodology the reader would have
expected, she also does not offer the historical and political background enabling
the reader to follow her often confusing argument. She should have taken a closer
look at the realities on the ground not too far away from Graz. Her book is
insufficiently structured, jumpy in its line of argumentation, not self-explanatory
enough and partly not well written at crucial sections. The central part might be
useful to look up some details on the institutional set up of former international
peace-building missions, but guiding ideas for actual or even future scenarios are
dearly missed.
Despite his, at first glance narrower approach, Smyrek’s Internationally Administered
Territories is by far the more preferable reading for someone who, even without a
particular interest in specific questions of sovereignty in international law, seeks to
obtain a quick and concise overview over the topic. Equally rich in information, it is
much better composed, with information much better accessible, even in parts that
would actually be much closer to Salamun’s chosen topic. While Smyrek, in his
classic formal approach, delivers the much better description, he equally brings to
the surface that his method obviously no longer provides the desperately needed
answers.
As for the underlying question, how democratic international administration by
peace-building missions can actually be, the answer remains sobering. As long as
international missions have, at the same time, to corral an armed conflict, provide
stability and security, secure human rights, balance the interests of the local
population and other interested parties, such as the former sovereign, and follow
the political decisions of the Security Council - there simply might not be room for
2007]
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full accountability to the inhabitants and institutions of the territory in question.
The dilemma can probably neither legally nor practically be put to an end once and
for all; it has to be lived with and resolved step by step in the field missions in
cooperation with – understandably dissatisfied – local partners. The only reason
this can be tolerated is that international territorial administrations are a necessary
intermediate step between the worst in the past – war, civil unrest, massive human
rights abuses – and the hopefully best in the future – democracy, human rights and
rule of law, made real by the local population.
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DEVELOPMENTS
German Federalism Reform: Part One
By Arthur Gunlicks*
A. Introduction
In October 2005 the German Law Journal published my article which reviewed the
major characteristics of German federalism, some common criticisms, and efforts to
reform the system in recent decades.1 These efforts culminated in a Federalism
Commission (Kommission von Bundestag und Bundesrat zur Modernisierung der
bundesstaatlichen Ordnung [KOMBO]) that was formed in the fall of 2003 and met
until December 2004, when the co-chairs announced that the Commission was
unable to reach agreement on several issues, in particular the respective roles of the
federal and Land (state) governments in higher education policy.2 The failure of
federalism reform was lamented by most observers, and many regretted especially
the fact that the Commission had agreed on far more issues than those on which it
had disagreed.
That federalism reform was important to political elites as well as scholars and not
to be ignored in spite of the failure of the reform commission became apparent
when the leaders of government and opposition met from 17-22 May 2005 to revive
the issue. Though considerable progress seems to have been made in the private
discussions held during this brief period, thoughts of revisiting the reform were put
on ice after the Land elections in North Rhine-Westphalia on 22 May 2005.3 The
Social Democrats (SPD) in that Land, who had governed alone or as the major
coalition partner as a result of receiving a majority or plurality of votes for thirty
years, lost badly to the Christian Democratic Union (CDU). The federal chancellor,
Professor of Political
[email protected].
*
Science,
Emeritus.
University
of
Richmond,
VA
23173.
Email:
Arthur Gunlicks, German Federalism and Recent Reform Efforts, 6 GERMAN LAW JOURNAL 1283 (2005), at
http://www.germanlawjournal.com/pdf/Vol06No10/PDF_Vol_06_No_10_12831296_SI_Articles_Gunlicks.pdf.
1
Ingo Richter, Das Bildungswesen im Föderalismusstreit, in DIE UNVOLLENDETE FÖDERALISMUSREFORM 43
(Rudolf Hrbek and Annegret Eppler eds., 2005).
2
Rudolf Hrbek, Ein neuer Anlauf zur Föderalismus-Reform: Das Kompromisspaket der Großen Koalition, in
JAHRUCH DES FÖDERALISMUS 2006 145 (Europäisches Zentrum für Föderalismus-Forschung ed., 2006).
3
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Gerhard Schröder, apparently to secure renewed majority support for his federal
coalition government, decided to call for new national elections (which can be done
only by manipulating constitutional procedures, which do not provide for a Britishstyle dissolution of parliament) for September 2005.4
Early federal elections did, indeed, take place, and to the surprise of most experts,
the SPD did somewhat better (34.2 percent) and the CDU and its sister party, the
Bavarian Christian Social Union (CSU), did much worse than expected (35.2
percent). The CDU/CSU’s small plurality of the vote was not enough to form a
majority coalition with the preferred partner, the Free Democratic Party (FDP),
which received a very respectable 9.8 percent of the vote. A CDU/CSU-FDP
coalition which would include the Greens (8.1 percent) was not viable, due to the
many differences in policy positions between it and the CDU/CSU and FDP, and a
coalition with the new Left party (die Linken), which received 8.7 percent, was out of
the question for policy and ideological reasons.5 The SPD and its coalition partner
from 1998 to September 2005, the Greens, lost their previous majority, and for them
a coalition that would add the Left party, which was especially critical of the SPD
for its alleged betrayal of workers’ interests, was also out of the question. A
coalition of SPD, Greens, and FDP was hardly viable, because of the differences on
economic and other issues between the SPD and Greens vis-à-vis the FDP. There
was, then, no alternative to a “grand coalition” of CDU/CSU and SPD, in spite of
their numerous but apparently not insurmountable differences. After a delay
brought about in part by former Chancellor Schröder’s insistence that he should
remain chancellor because the SPD had more votes and seats in the Bundestag than
the CDU without the CSU (an argument that was not very persuasive), a coalition
government consisting of the CDU/CSU and SPD was formed in November under
the leadership of Chancellor Angela Merkel of the CDU. The coalition agreement,
signed on 11 November 2005, contained a section on federalism reform and an
appendix of 226 pages, including 56 pages that presented the results of coalition
discussions in the form of numerous proposals for constitutional changes in the
federal system.6
4 See Werner Reutter, Yet another Coup d’État in Germany? Schröder’s Vote of Confidence and Parliamentary
Government in Germany, 15 GERMAN POLITICS 302 (September 2006).
5 The German electoral system, which combines single-member districts with proportional
representation, is essentially proportional in its effects, which means that the percentage of votes
translates roughly into the percentage of seats.
6“Gemeinsam für Deutschland: Mit Mut und Menschlichkeit.” Koalitionsvertrag von CDU, CSU, und SPD
(http://www.cducsu.de/upload/koavertrag0509.pdf)
2007]
German Federalism Reform: Part One
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Federalism reform, which Edmund Stoiber, the prime minister of Bavaria and a cochair of the Federalism Commission, had called “the Mother of all Reforms,” and
which had seemed to be critically wounded if not dead, was thus suddenly revived
by the CDU/CSU and SPD that wanted to demonstrate that their grand coalition
was capable of passing important legislative reform bills that would start with
federalism but later would also include health care, pensions, taxes, and other
longstanding key issues. Federalism reform did, indeed, pass the Bundestag and
Bundesrat in mid-summer and go into effect on 1 September 2006. On one hand,
the grand coalition thus demonstrated—at least temporarily—that it was capable of
breaking the reform gridlock (Reformstau) that had come to characterize German
politics, and which, in no small measure, had been attributed to federalism issues in
the first instance. On the other hand, the authors of the coalition agreement, like the
members of the Federalism Commission of 2003-2004, did not tackle two very
important subjects strongly related to federalism and considered by many to be
necessary for a genuine reform: a reform of public finances, especially of transfer
payments from the richer to the poorer Länder, and territorial or boundary reform
that would include the consolidation of some of the sixteen Länder.7 It was agreed
during the debates of the reform proposals of the grand coalition that finance
reform would be taken up in the fall (in fact, December 2006),8 but it is doubtful
that territorial reform will be considered in the near future. In any case only “part
one” of a reform that many experts believe needs to consist of three parts has been
completed.
B. The Reform Proposal of the Grand Coalition
During negotiations leading to the formation of the grand coalition, a working
group of experts completed a document that became that part of the appendix of
the coalition agreement that deals with federalism reform. Section V. of the
coalition agreement states that “[t]he grand coalition has agreed to a modernization
of the federal order on the basis of the previous work on federalism reform by the
Bundestag and Bundesrat, as contained in the appendix.” It notes that the
Bundestag and the Länder would be consulted regarding the proposed
constitutional amendments and accompanying legislation, and that the results will
be passed quickly. It also promises to clarify the financial relationships of the
federal and Land governments in order to amend the Basic Law (constitution) so
7 For the discussion in the Federalism Commission for and against dealing with territorial reform, see
Dokumentation der Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen
Ordnung, Deutscher Bundestag, Bundesrat Öffentlichkeitsarbeit (Hrsg.), Berlin. Zur Sache 1/2005, pp.
988-996. (Available as CD-Rom).
8
The Bundestag and Bundesrat established a committee on December 15 to recommend changes in the
system of public finances before the end of the current parliamentary session in 2009. 56 DAS
PARLAMENT 51/52 (18/27 December 2006), at 1.
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that the autonomy of the territorial units and finances adequate to their
responsibilities are strengthened.
The section of the appendix concerning federalism reform contains the numerous
proposals for amendments to the Basic Law, and it was approved by a conference
of prime ministers of the Länder on 14 December 2005. They agreed to form a
working group led by four Länder that would prepare and coordinate among the
Länder the changes in statutory legislation that would be required. The three parties
that formed the coalition government also set up a special working group to work
on details of the reform proposal. The two working groups accepted a package of
changes, and a special conference of Land prime ministers agreed on 6 March 2006
to introduce the various legislative changes in the Bundestag.9
The measures were introduced on the same day, March 10, 2006, in both the
Bundesrat and Bundestag.10 Because the prime ministers of the Länder had been
involved in the process almost from the beginning of the grand coalition, the debate
in the Bundesrat was characterized by the compromises already reached. It was
somewhat different in the Bundestag, because members of that body had not been
involved at any stage and saw themselves confronted with a reform package that
allegedly could not bear any tinkering. The Bundestag debate that followed showed
some differences in the understanding of federalism, including support by
CDU/CSU parliamentarians for “competitive federalism,” which the reforms
would presumably promote; preference by some for more uniform, that is, national,
solutions to certain problems; and opposition by the new Left Party that warned of
weakening the Federal Republic by creating numerous small states going their own
separate ways (Kleinstaaterei). The FDP, whose support by the grand coalition
parties was solicited to ensure the required two-thirds majority, made its support
contingent on the agreement by the parties of the grand coalition to take up the
question of public finances as part two of the federalism reform.11
In the Bundesrat the prime minister of Mecklenburg-Vorpommern, the poorest of
the poor Länder, expressed opposition to the reform proposals on the grounds that,
to the extent that they promoted “competitive federalism,” they weakened
constitutional provisions calling for maintaining “equivalent living conditions”
(Art. 72, para. 2 and Art. 106, para. 3—which still uses the term “uniformity of
living conditions”). These guaranteed an essential degree of financial support to
poor areas of Germany that were unable to compete with rich areas in any
9
Hrbek, supra note 3, at 149.
10
Helmut Herles, Noch längst nicht im Kasten, 56 DAS PARLAMENT 3 (March 13, 2006).
11
Berndette Schweda, Zündstoff auf der Zielgeraden, 56 DAS PARLAMENT 1 (March 13, 2006).
2007]
German Federalism Reform: Part One
115
meaningful sense. But the prime ministers of the other Länder expressed support for
the compromise package in spite of criticisms of individual provisions. It was noted
that passage of the reform package would demonstrate that the Federal Republic
was capable of implementing reforms, and reference was made to the second part
of the reform that would deal with public finance. In this context one prime
minister remarked that a debate would be needed to clarify just how much
difference in the fiscal capacities of the different Länder the German federal system
could tolerate.12
For the first time in the history of the Federal Republic, joint Bundestag-Bundesrat
hearings on the reform were held in the Bundestag chambers in May and early
June, and the constitutional amendments and revisions in numerous laws made
necessary by these amendments were discussed and debated not only between but
also within the party groups.13 Some last minute changes were made, but some
strong opposition within each of the coalition parties remained. Nevertheless, the
most comprehensive reform of the Basic Law (constitution) since its inception in
1949 and the accompanying legislation passed on 30 June 2006 with 428 votes in
favor (410 were required for a two-thirds majority), 162 opposed and 3 abstentions.
The opposition Greens voted against the package, because, in their view, it offered
no solutions to serious problems, especially in the area of education; the FDP
expressed regret that a reform of public finances was not included; and the Left
Party rejected the reform as a return to Kleinstaaterei, for example, in education
policy, and complained that the authors of the reform had never made clear
whether they wanted a system of cooperative or competitive federalism.14
The Bundesrat took up the reform package a week later and passed it by a vote of
62 for and 7 against (the Länder have from 3-6 votes each in the Bundesrat). The
prime minister of Bavaria, Edmund Stoiber, emphasized the transfer of
responsibilities to the Länder and their partial redistribution between the federation
and Länder and rejected the argument that the reform would lead to Kleinstaaterei.
The Länder had demonstrated their competence in education and environmental
policy and would continue to show solidarity with the poorer Länder. SPD party
leader and prime minister of the Rhineland-Palatinate, Kurt Beck, noted the clearer
division of responsibility between the federation and the Länder and the
12
Hrbek, supra note 3, at 153-156.
Johannes Leithäuser, Berliner Reformviertelfinale, FRANKFURTER ALLGEMEINE ZEITUNG, July 1, 2006, at 8;
Blokadebrecher, FRANKFURTER ALLGEMEINE ZEITUNG, July 1, 2006), at 1.
13
Bundestag billigt Staatsreform, FRANKFURTER ALLGEMEINE ZEITUNG, June 30, 2006, at 1; Föderalismus in
neuem Gewand, 56 DAS PARLAMENT 1 (July 3, 2006). For excepts from the Bundestag debate, see 56 DAS
PARLAMENT 15 (July 10/17, 2006).
14
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opportunities the reform offers for a revival of federalism that would lead to a
competition of ideas rather than the “competitive federalism” feared by the poorer
Länder and the Left Party. While other prime ministers also praised the reform,
Schleswig-Holstein (CDU) with 4 votes and Mecklenburg-Vorpommern (SPD) with
3 votes rejected the reform package.15
C. The Reform Amendments
I. The Proposals of the Reform Commission, the Coalition Agreement, Legislation
Introduced and Legislation Passed
As noted in my article in the German Law Journal of 1 October 2005, the co-chairs of
the Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen
Ordnung (KOMBO) reported on 17 December 2004 that they could not present a
common reform document, because of disagreements in the Commission regarding
a number of issues, especially education. On the other hand, the Commission report
did contain numerous proposals for constitutional changes on which agreement
had been achieved and which later served as the foundation for the proposals on
federalism reform in the coalition agreement and the actual legislation that
followed. Reading the proposals of the Commission report of December 2004 and
the coalition agreement almost a year later, one finds they were the same or very
similar in most cases, but a sizeable number of proposals were revised rather
significantly and a number were added, in particular proposals concerning issues
on which no agreement was reached in the Commission in 2004. The working
groups assembled after the formation of the grand coalition that were noted under
section B. above made some additional revisions in the wording of the proposed
amendments and prepared the legislative changes that were to accompany the
constitutional amendments.16 Indeed, according to my own analysis, there were
changes—from significant to minor editorial changes—in 20 proposed
amendments, and 4 proposed amendments were not contained in the coalition
agreement; there were no changes in 14 other proposed amendments.17 These
proposed changes were introduced in the Bundestag and Bundesrat on March 10.
15
56 DAS PARLAMENT 6 (July 10/17, 2006).
16 For the changes to legislation accompanying the revised constitutional amendments, see Bundesrat,
Entwurf eines Föderalismusreform—Begleitgesetzes, BRDrukcs 179/06 (March 7, 2006); and Entschließung
des Bundesrates zum Entwurf eines Gesetzes zur Änderung des Grundgesetzes, BRDrucks 180/06 (March 7,
2006).
17 See Coalition Agreement, supra note 6; Bundesrat, Entwurf eines Gesetzes zur Änderung des
Grundgesetzes, BRDrucks 178/06 (March 7, 2006).
2007]
German Federalism Reform: Part One
117
During the hearings in the Bundestag and before the reform package was passed on
June 30, a relatively small number of additional changes were made.18
II. General Goals
In their meeting on 14 December 2005, Chancellor Angela Merkel and the prime
ministers of the Länder agreed that the proposals for federalism reform should
include the following general goals:
!"
!"
!"
!"
Strengthening the legislation of the federation and Länder through a clearer
distinction of their legislative powers and eliminating framework
legislation;
Reducing mutual blockades by the Bundestag and Bundesrat through a redesignation of federal legislation requiring the consent of the Bundesrat;
Reducing joint financing and revising the conditions for receiving federal
aid while confirming previous promises made to the new Länder;
Strengthening the ability of the Basic Law to deal with European
integration through a revision of representation abroad and regulations
concerning a national solidarity pact as well as accepting responsibility for
compliance with supranational law. 19
These broad goals and a number of other provisions became the basis for some
important as well as minor changes in 25 Articles of the Basic Law. The more
important changes are discussed in the section below.
III. The New Amendments and Changes
1. Section VIII: The Implementation of Federal Laws and Federal Administration
One of the major complaints about the functioning of the German federal system,
especially after the finance reforms of 1969 that led to a strong system of
“cooperative
federalism”—characterized
increasingly
by
a
kind
of
intergovernmental relations called “political interconnections” or even “political
entanglements” (Politikverflechtung) that has made efficient and especially
accountable policy making difficult if not impossible—was that about 55-60 percent
of all federal legislation required the consent of the Bundesrat. The Bundesrat can
also object to the remaining 40-45 percent, but this is a suspensive veto that a
majority of the Bundestag can override.
18
See Bundesrat, Gesetz zur Änderung des Grundgesetzes, BRDrucks 462/06 (June 30, 2006).
19
BRDrucks 178/06, “Begründung,” p. 15.
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So long as the governing parties have a majority in both the Bundestag and
Bundesrat, there is usually little or no difficulty in getting bills through the
legislative process in both chambers. The problem, it is argued, is that in recent
decades one or both parties in newly formed federal coalition governments20 have
usually lost votes in subsequent Land elections, because voters tend to see these
elections as an opportunity to vote against parties in the federal government or not
to vote as a protest. The parties that have formed the federal government (cabinet)
as a result of their majority in the Bundestag either have not retained, or, more
likely, soon lost, their majority in the Bundesrat to the opposition parties that
benefited from the decline of support for the federal government parties. These
opposition parties then became governing parties in the Länder that sent
delegations with 3-6 votes to the Bundesrat. If and when the parties in the federal
government lost their majority in the Bundesrat, there was a tendency for the
Bundesrat to block21 or to force modifications22 in legislative proposals supported
by the federal government. The resulting “blockade politics,” somewhat similar to
conditions in the United States when the Senate and House of Representatives have
different party majorities and/or when there is “divided government” as a result of
different party control of Congress and the White House, has been strongly
criticized in Germany because of its lack of transparency and accountability,
inefficiency, and hindrance of “responsible” party government that should be
found in a parliamentary “party state” like Germany.23 “Blockade politics” has been
blamed in part for the apparent inability of German politicians to deal with the
challenges that face them and to introduce needed reforms, and it is seen as one of
the causes of popular discontent with the parties and politicians in Germany.24
As noted in my previous article in the German Law Journal, “dual federalism” in
Germany means policy making at the federal level and policy implementation at
the Land level, and Article 83 in Section VIII of the Basic Law that deals with the
implementation of federal laws and the federal administration states accordingly
20 Since 1949 all German governments have been coalition governments, which is common to most
European parliamentary systems. The CDU/CSU gained an absolute majority of seats in the 1953
elections, but they formed a coalition government anyway.
21
In fact actual vetoes of legislation by the Bundesrat have been rare, though they do occur.
22 More common is a compromise package put together by members of the Bundestag and Bundesrat in
the mediation committee.
23
See, e.g., Peter M. Huber, Klare Verantwortungsteilung von Bund, Ländern un Kommunen?, GUTACHTEN D
DEUTSCHEN JURISTENTAG 33 (2004).
ZUM 65.
The fact that popular discontent with parties and politicians is found in varying degrees in virtually all
Western democracies suggests that particular conditions in Germany are at best contributing factors.
24
2007]
German Federalism Reform: Part One
119
that “the Länder implement federal laws on their own responsibility insofar as this
Basic Law does not provide otherwise.” The major reason for the requirement of
Bundesrat consent for about 60 percent of federal legislation—at the time the Basic
Law was written, it was thought Bunderat consent would be required for about 10
percent of all legislation—is found in Article 84 and the interpretation it has been
given by various federal governments and the Federal Constitutional Court.
Article 84, para. 1, states that when the Länder implement federal laws, they
establish on their own responsibility the agencies and procedures for
administration unless federal law with Bundesrat approval provides otherwise.
Paragraph 2 states that the federal government can establish general administrative
rules with the approval of the Bundesrat. A rather loose interpretation of these
provisions became responsible for about half of the consent legislation.25
One of the major goals of the proponents of reform was, therefore, to find ways to
reduce the percentage of legislation requiring Bundesrat consent. This was,
however, not a simple task, in part because the more the Bundesrat had to give its
consent, which meant the more the Bundesrat was involved in federal legislation,
the more powerful the prime ministers of the Länder were. As a result it became
clear that the “Land princes” would probably need some kind of compensation to
secure their support for change.
The solution found was the right of a Land government to “deviate” (abweichen)
from federal rules regarding the establishment of agencies and procedures, when
provided, by passing its own regulations. If this occurs, the federal regulations do
not go into effect for the other Länder for six months, in order to give those Länder
the opportunity to consider passing their own regulations. In exceptional cases,
where the federal government believes there is a special need for uniform federal
regulation of procedures, the law providing for such uniformity requires approval
by the Bundesrat.26 While the Länder gained the right to deviate from some federal
legislation, the local governments were also successful in their efforts to eliminate
federal mandates. New provisions with the same wording were added to Articles
84 and 85 that state clearly that federal laws may not transfer tasks to local
governments,27 which means that future transfers of tasks will have to come from
the Länder that retain constitutional responsibility for their localities.
Irene Kesper, Reform des Föderalismus in der Bundesrepublik Deutschland, 6 NIEDERSÄCHSISCHE
VERWALTUNGSBLÄTTER 146 (June 1, 2006); Stefanie Schmahl, Bundesverfassungsrechtliche Neujustierung des
Bund-Länder-Verhältnisses im Bereich der Gesetzgebung, in Jahruch des Föderalismus 2006 233
(Europäisches Zentrum für Föderalismus-Forschung ed., 2006).
25
26
BRDrucks 178/06, Artikel 1, para. 9(1); BRDrucks 462/06, change (c); Kesper, supra note 24, at 147.
27 BRDrucks 178/06, Artikel 1, 9(1) and 10. For a discussion of the background and development of
federal and EU mandates that have had the effect of undermining local autonomy and the need to
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2. VII. The Lawmaking Powers of the Federation
In addition to the complaints made about the need to gain the consent of the
Bundesrat for 55-60 percent of federal legislation, a major problem in the German
federal system was seen in the relative decline of the Länder vis-à-vis the federation
in general lawmaking powers. In response, important, but not radical, changes
were made in the restructuring and redistribution of law-making powers.
Article 70 under Section VII states that “[t]he Länder have the right to legislate,
insofar as this Basic Law does not provide the federation legislative powers.” This
article is misleading in that it gives the impression that the Länder are the or at least
a major source of legislation. In fact, however, constitutional and political
developments since 1949 left the Länder with relatively few competences in
legislation outside of local government, police functions, and general culture, which
includes education. The federation, on the other hand, assumed major
responsibility for legislation via three sources: exclusive legislative powers (Article
71); concurrent legislative powers (Article 72); and framework legislative powers
(Article 75). One of the major goals of federalism reform was to redistribute these
powers in such a way as to give the Länder additional responsibilities and therefore
strengthen the role and status of the Land parliaments.
a. Article 73 and Federal Powers
Exclusive federal legislative powers are listed in Article 73 and include such
obvious areas as foreign affairs and defense, federal citizenship, currency, customs
and trade. The amendments passed on June 30 actually added several items to this
list: protection of German cultural artifacts from transfers abroad; defense by
federal police against international terrorism in cases where certain conditions are
met (legislation in this area requires approval by the Bundesrat); weapons and
explosives; the care of those injured or affected by war; and the manufacture and
use of nuclear energy for peaceful purposes and protection against dangers from
nuclear accidents.
b. Articles 72 and 74 and Concurrent Powers
Many of the powers assumed by the federation have come from Articles 72 and 74,
which deal with concurrent legislation. Article 72, para. 1, states that the Länder
have the right to legislate so long and insofar as the federation has not made use of
provide protection to local governments in a reform of the federal system, see Karl-Peter Sommermann,
Kommunen und Föderalismusreform, in Bitburger Gespräche Jahrbuch 2005/I 59 (2006).
2007]
German Federalism Reform: Part One
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its legislative authority by law; para. 2 gives the federation legislative powers that
are essential (erforderlich) in promoting equivalent living conditions in the
federation or in protecting the legal and economic unity in the general interest of
the federation. This second paragraph has now been changed so that the federation
no longer has the right to pass legislation under its general concurrent powers;
rather, it retains the power to pass “essential legislation” in ten areas only (Article
74, para. 1, items 4, 7, 11, 13, 15, 19a, 20, 22, 25, and 26). In sixteen areas it has
concurrent powers without having to meet the “essential” condition, which some
see as having a centralizing effect.28 A new paragraph 3 states that in six other areas
(Article 74, para (1), items 28-33) the Länder have the right to deviate from federal
laws and that these laws go into effect at the earliest six months after passage,
unless the Bundesrat has agreed to a different timetable.
As noted above, Article 74 provides a long list of items that fall under concurrent
legislation. The problem, from the perspective of the Länder, is that the federation
did “make use of its legislative authority by law.” Whenever it did so, whatever
law the Länder had in that particular area became null and void and was replaced
by federal law (thus “concurrent legislation” is somewhat of a misnomer).29 The
federation also decided that it should pass a good deal of legislation that promoted
equivalent (before 1994, “uniform”) living conditions (conditions that promote
more equal opportunity, such as infrastructure, not equal living standards). The
tendency of the federation to pass such legislation on the grounds that it was
“necessary” and, after 1994, “essential,” according to Article 72, para. 2 (see above),
was dampened even before the federalism reform of 2006 was passed as the result
of a decision by the Federal Constitutional Court that narrowed considerably the
meaning of “essential.”30
It was also noted above that Article 74 has now been amended in a number of
ways. In the first item on the list of concurrent legislation which deals with a series
of legal issues, punishment for crimes and the regulation of notary publics (more
important in Germany than in the U.S.) were removed, i.e., they were given to the
Länder. In items that follow, the regulation of assembly, the regulation of nursing
homes and homes for the elderly and disabled (Heimrecht), weapons and explosives
and the care of those injured or affected by war were also removed from concurrent
legislation (both of the last two areas were added to the exclusive powers of the
federation as noted above). Items 18, 19, and 20 were revised, as were items 22, 24,
28
Kesper, supra note 24, at 148.
29
See, e.g., Schmahl, supra note 24, at 221.
30
BVerfGE 106, 62; BVerfGE 106, 223-225.
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and 26. Seven new items were added after item 26, so that there are now 33 areas
listed under concurrent legislation.31
A particularly contentious issue was Article 74a, added to the Basic Law in 1971. It
provided that the federation has concurrent powers over the salaries and benefits of
all public employees. Its purpose was to stop the competition among the Länder for
the recruitment of public employees, including professors, school teachers, and
police as well as those engaged in administration at all levels. It was criticized for
decades as an example of the Länder voluntarily giving up to the federation a major
area of responsibility that had been an important part of Land powers. Article 74a
was deleted in the 2006 federalism reform, and provisions concerning the status
and duties of civil servants (Beamten) of the Länder, local governments, and other
public corporations, including judges, were transferred to Article 74 as item 27 (see
paragraph above). Salaries and benefits for all public employees in the Länder and
local governments, however, are now the responsibility of the Länder.
In those cases where the Länder may deviate from federal legislation passed in
accordance with federal concurrent powers, the federal law is not to go into effect
for six months. This not only allows the Länder time to consider to what extent, if
any, they wish to deviate from the federal legislation; it also prevents a kind of
legislative “ping-pong” between federal and Land laws. On the other hand, a twothirds majority of the Bundesrat can allow the federal law to go into effect
immediately.32
c. Article 75 and Framework Laws
As noted above, the third source of federal powers was found in Article 75 that
provided for federal framework legislation. The Länder retained the right to fill in
the details of such legislation, but complaints multiplied in recent years that the
details were being provided increasingly by the federation (in spite of Article 75,
para. 2, that permitted details only in exceptional cases and Article 75, para. 1—that
refers to Article 72, para. 3—when it was “essential”) thus reducing further the
legislative powers of the Länder. The Federal Constitutional Court decided two
cases in 2004 (Junior Professor Decision)33 and 2005 (Student-Fees Decision)34 that
placed significant limits on the federal government’s broad interpretation of its
31
BRDrucks 178/06, Artikel 1, para. 7( a) and (b); BRDrucks 462/06, (b).
32
Kesper, supra note 24, at 150.
33
BVerfGE 111, 226.
34
BVerfGE 112, 226.
2007]
German Federalism Reform: Part One
123
competence in the area of education in accordance with the provisions stated
above. Areas covered by Article 75 included regulations concerning the legal
regulation of the public servants in the Länder; the general principles concerning
higher education; the general legal regulation of the press; hunting, nature
conservation and landscape management; land distribution, land use planning and
water resource management; matters relating to registration or residence or
domicile and identity cards; and protection of German cultural artifacts from
transfers abroad.
Article 75 was deleted from the Basic Law in the federalism reform of 2006, which
was not surprising given the implications of the two Federal Constitutional Court
cases mentioned above. The last item above concerning German cultural artifacts
has now been added to Article 73 as an exclusive federal power, whereas the status
and duties of Land and local civil servants, hunting, nature conservation and
landscape management, land distribution, land use planning, water resource
management; and admission and graduation requirements in higher education
have been added to the federal concurrent powers (see above).
3. The Disentanglement of Joint Tasks and Mixed Financing (Articles 91a and 91b).
a. Article 91a
One of the persistent complaints about the relations between the federation and the
Länder concerned “mixed financing” (Mischfinanzierung) pursuant to which the
federation would provide up to 50 percent of the funds for certain Land
responsibilities when these “are important for society as a whole” and “federal
participation is necessary for the improvement of living conditions (joint tasks).”
These “joint tasks” included “improvement and new construction of institutions of
higher learning, including university clinics”; “improvement of regional economic
structures”; and “improvement of the agrarian structure and of coastal
preservation.” Projects required the consent of the Land affected.
The problem, according to many critics, was that the Länder were in effect bribed to
engage in a variety of activities at the risk of losing federal funds, and that some
Länder could ill-afford these activities even with federal help. Another complaint
was that joint financing of what, after all, were Land responsibilities increased the
federal role at the expense of the Länder and reduced their autonomy.
The federalism reform of 2006 deleted paragraph 1, section 1, regarding the
improvement and new construction of institutions of higher learning and
university clinics. This change complements and is in conformity with the deletion
of Article 75 which provided for framework legislation regarding higher education.
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On the other hand, the two sections concerning regional economic structures and
agrarian structures and coastal preservation were not changed.35
b. Article 91b
The old version of Article 91b provided for joint federal-Land educational planning
and promotion of facilities and projects of more than regional importance. Joint
educational planning never really occurred, because of ideological and other
differences between the governing parties in the federal government and the
Länder,36 but federal participation in research facilities and projects was common.
The federalism reform of 2006 made a number of changes: educational planning
was deleted, and paragraph 1 now states that the federation and Länder can
participate jointly in promoting and financing facilities and projects of scientific
research external to universities; projects of science and research at universities; and
research facilities at universities, including large scientific instruments. Perhaps as a
reflection of the sensitivity of some Länder regarding the federal role in higher
education, federal involvement in scientific projects and research in the universities
must be approved by all of the Länder, i.e., any one Land prime minister can exercise
a veto.37
4. Finance
The two parties in the grand coalition formed in November 2005 agreed to exclude
the general system of public finance (the so-called part two) in their federalism
reform of 2006, but they did make some changes in selected parts of the reform that
concern finances. In Section X, Article 104a was changed in a number of places: the
last sentence of paragraph 3 was deleted, and a new paragraph 4 was added that
replaced the old one. It requires Bundesrat approval of federal laws that involve
Land administration as well as Land funds. A paragraph 6 was also added that
concerns the responsibilities of the federation and the Länder for violating
supranational or international obligations, such as when one or more Länder violate
provisions of EU law. An example might be a fine for illegal subsidies for a
particular industry that a Land is trying to attract or for failure to implement EU
regulations. According to the new paragraph 6, the federation now bears 15 percent
of the costs of such a fine, while 35 percent is borne by all of the Länder. The
35
BRDrucks 178/06, Artikel 1, para. 12.
Heinrich Mäding, Federalism and Education Planning in the Federal Republic of Germany, 19 PUBLIUS: THE
JOURNAL OF FEDERALISM 115 (Fall 1989).
36
37
BRDrucks 178/06, Artikel 1, 13; BRDrucks 462/06, (d).
2007]
German Federalism Reform: Part One
125
offending Länder, on the other hand, are responsible for 50 percent of the costs (see
also the new paragraph 5 of Article 109 below).38
The old paragraph 4 mentioned above was revised and now forms the basis of a
new Article 104b. It provides for federal grants-in-aid for especially important
investments of the Länder and local governments to avert a disturbance of the
overall economic equilibrium, to equalize differing economic capacities within the
federal territory, or to promote economic growth. This provision differs from the
old in limiting somewhat the reach of federal grants-in-aid, in placing time limits
on the grants and requiring periodic reviews, and in requiring that the aid granted
be reduced in stages over time.39
The new Article 143c also deals with finances in that it provides formulas for
compensation of the Länder until 2019 for the elimination of federal aid for the
construction of expansion of facilities for higher education, improvements for
streets in local governments, and public housing. The year 2019 is also the last year
of the post-unification Solidarity Pact II that establishes the fiscal equalization
regime between the federation and Länder and among the Länder.40 But it is subject
to revision by paragraph 3, which calls for a determination of federal aid that is
considered appropriate and essential for carrying out Länder tasks. Paragraph 3,
sentence 3, states explicitly that the provisions of Solidarity Pact II are not to be
disturbed.41
4. German Federalism and the EU
a. Sharing EU Sanctions for National Budget Deficits.
The Growth and Stability Pact of the European Union places sanctions on member
states that have a budget deficit of more than 3 percent of GDP, a provision that
Germany—and a few other states, such as France and Italy—violated between 2001
and 2005. Due to increased tax revenues, Germany was able to keep its deficit
below 3 percent in 2006; however, the federal government in particular was
concerned about the distribution of the German responsibility for failure to meet
this requirement in the future. A new paragraph 5 of Article 109 now provides that
38
BRDrucks 178/06, Artikel 1, 16; BRDrucks 462/06, (e); Kesper, supra note 24, at 155-156.
39
BRDrucks 178/06, Artikel 1, 17; BRDrucks 462/06, (f).
40 For a brief analysis of Solidarity Pact II, see Arthur B. Gunlicks, A Major Operation or an Aspirin for a
Serious Illness?, American Institute of Contemporary German Studies, 28 June 2001
(http://www.aicgs.org/analysis/at-issue/ai-gunlicks.aspx).
41
BRDrucks 178/06, Artikel 1, 23.
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in the case of sanctions the federation and Länder will share the costs according to a
65:35 ratio. The EU requirements are directed at the member states, not their
subnational units, but the Länder that have deficits of any amount, not just 3
percent, will now be required to contribute to the 35 percent designated as their
responsibility on the basis of their population. Only Länder with balanced budgets
will be exempt from such contributions.42
b. Länder Participation in EU Policy-making
One of the contentious issues in the Federalism Commission in 2004 was Article 23,
which outlines in some detail the participation of the Länder in deliberations of the
EU Council of Ministers. In cases where the federation has exclusive legislative
powers but the interests of the Länder are nevertheless affected in some manner, the
federal government is to give consideration to the views of the Länder. When,
however, Länder interests are the focus of EU legislation, as in cases involving areas
of Land legislative powers, organization or procedures of Land administrative
agencies, the views of the Länder are decisive (maßgeblich) so long as they respect the
national interest (the Länder tried unsuccessfully to change “decisive” to “binding”).
Representatives of the SPD-Green federal government and some experts argued
that Länder participation caused delays and inefficiencies that were harmful to
German interests. Länder governments disagreed in general, suggesting that the
federal representatives were exaggerating their concerns, and even tried to
strengthen the role of the Länder.43
The Länder won the argument in the coalition agreement and later insofar as their
role in paragraph (6) of Article 23 was clarified and strengthened somewhat. This
paragraph now states that in the areas of their exclusive legislative competence
concerning schools, culture, and electronic media, the Länder will be represented in
the EU Council of Ministers by someone appointed by the Bundesrat.44 In cases
involving areas other than the three specified above, the Länder can appoint a
representative only in consultation with the federal government.
5. The Berlin Clause
42
BRDrucks 178/06, Artikel 1, 20.
43 Matthias Chardon, “Institutionalisiertes Mißtrauen“: Zur Reform der europapolitischen Beteiligung der
Länder nach Art 23 GG im Rahmen der Bundesstaatskommission, in DIE UNVOLLENDETE FÖDERALISMSUREFORM 79 (2005); Kesper, supra note 24, at 156.
44
BRDrucks 178/06, Artikel 1, 2.
2007]
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There was general agreement among members of the Federalism Commission
about the need for a clause designating Berlin as the national capital. The proposal
of 13 December 2004 made by the chairmen of the federalism commission added a
new section one to Article 22 that simply designated Berlin as the capital of the
Federal Republic.45 This proposal was not satisfactory from the perspective of
Berlin, however, because it wanted provisions concerning a federal financial
responsibility for certain activities associated with a capital city. The federal
government of then Chancellor Schröder, on the other hand, was not in favor of
such obligations.
The coalition agreement of November 2005 and the version of the amendment that
passed the Bundestag and Bundesrat46 took account of the concerns of Berlin,
though not in specific terms. It reads: “The capital city of the Federal Republic of
Germany is Berlin. The representation of the state as a whole in the capital city is
the responsibility of the federation. Details shall be regulated by a federal law.” The
“details” will undoubtedly be controversial, especially given the huge financial
debts that Berlin has.
D. Assessment
According to the coalition agreement of November 2005, the changes in Section VIII
of the Basic Law that deal with the implementation of federal laws by the Länder
and the rights of the Länder to participate in federal lawmaking should reduce the
percentage of legislation requiring Bundesrat consent from about 60 percent to
around 35-40 percent. This would, indeed, be an important step away from
“political interconnections or entanglements,” but it does not reduce the influence
in a massive way.47 It depends on the extent to which, in the future, the Länder
perceive a need to exercise their new right to deviate from the federal regulations. It
also depends on the political response to separate Land regulation when there is no
consensus that Land regulation is more suitable.
Under Section VII of the Basic Law dealing with lawmaking competences of the
federation, some of the amendments of Articles 72, 73 and 74 and the transfer of the
provisions of Article 75 to Articles 73 and 74 have provoked considerable
controversy. For example, Article 74, para 1, item 11, which gives the federation
45 Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung,
Arbeitsunterlage 0104-neu, Vorentwurf vom 13. Dezember 2004, Vorschlag der Vorsitzenden, V.
Hauptstadt.
46
BRDrucks 178/06, Artikel 1, 1.
47
Kesper, supra note 24, at 147.
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concurrent powers over certain economic activities, no longer includes the right to
regulate store closing hours, a power favored strongly by unions and churches (at
least as far as Sundays are concerned) but a power seen by many others as a good
example of overregulation, a considerable burden on retail establishments, and an
inconvenience to German shoppers. By November 2006 some Länder, e.g., Berlin,
had already acted to liberalize dramatically store opening hours. Another example
is the transfer from Article 74 (para.1, section 1) to the Länder the responsibility for
the punishment for crimes, which some observers fear will lead to unacceptable
differences in the treatment of those convicted for the same crime in different
Länder (as in the U.S.).
A very controversial change concerns setting the salaries and benefits for public
employees, a right returned to the Länder through the deletion of Article 74a. While
this satisfied those who argued that this is a core responsibility of the constituent
parts of any strong federal system, critics in the poorer Länder object that it will put
unacceptable pressure on these Länder to keep up with the rich Länder or lose their
more qualified civil servants.
Transferring responsibility to the Länder for most aspects of education by deleting
federal framework legislation (Article 75) and, as a result, federal influence over
education, was a necessary compromise for achieving success in the federalism
reform package, but it remains problematic for many critics. They fear a
fragmentation of the German educational system and a decline of standards in
some Länder, while proponents insist that education is a core responsibility of the
units that make up a strong federal system and an area where competitive
federalism can make a positive contribution. (The federal government’s retreat
from education is, nevertheless, rather astonishing from a comparative perspective,
given, for example, the massive federal role in the Bush Administration’s “No
Child Left Behind” legislation.48). The federation still has concurrent powers for
regulating admissions and graduation requirements in higher education, but even
these are subject to the right of the Länder to deviate from these laws.
Environmental legislative competence was one of the issues that divided the
Federalism Commission in 2004. The transfer by the 2006 reform of nature
conservation from federal framework legislative powers to the concurrent powers
of the federation, combined with the right of the Länder to deviate from federal law
in this area, has been criticized not only because of the fear of a fragmentation of
law in the protection of the environment but also because of the need to conform to
EU environmental legislation, under which up to 80 percent of environmental
Ingo Richter’s claim that there is no federal regulation of education in other federal systems is,
therefore, not true. See Richter, supra note 2, at 51-52.
48
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German Federalism Reform: Part One
129
legislation in Germany falls. On the other hand, the Länder, just like the federation,
are bound by EU regulations, and they do not have the right to deviate from
concurrent legislation concerning “the general principles of the conservation of
nature, [or] the law of species protection or of marine life.” Just what this means,
especially “general principles,” is subject to debate.49
Both the federal government and the Länder gained and lost certain powers as a
result of the federalism reform of 2006. The federation gained exclusive powers
(Article 73) over the law relating to registration of residence and identity cards;
protection of German cultural artifacts against transfer abroad; defense against
international terrorism (subject to Bundesrat approval); laws relating to weapons
and explosives; benefits for war victims; and the regulation of nuclear power. These
changes aroused little controversy. But changes to Articles 72 and 74, as we saw
above, have in some cases been criticized in varying degrees by those who fear that
the newly gained Land powers will lead to a race to the bottom, make it difficult or
impossible for the poorer Länder to compete with the richer Länder, or lead to the
Länder going off in different directions and weakening the federation
(Kleinstaaterei). Proponents of the reform, of course, reject these concerns. Some
observers argue that in fact little will change, either because the German public will
not accept significant differences in the quantity and quality of important services
in different parts of the country or that differences that could emerge will be
checked by a lack of funding. These debates reveal the dilemma faced by Germans
who want more autonomy for the Länder, on the one hand, but recognize the need
to maintain some uniformity in economic, social, and educational conditions and
opportunities, on the other hand.50
The amendments to the Basic Law regarding finances were very modest in
comparison with the task that any part two of federalism reform will face. Neither
the Federalism Commission of 2003-2004, the grand coalition parties in their
coalition agreement of November 2005, nor the members of the Bundesrat
committee formed in the winter of 2006 or the coalition parties in the Bundestag
deliberations in the spring and summer of 2006 were willing to tackle the issue of
general finance reform.51 Indeed, the last sentence of the new Article 143c,
49 BRDrucks 178/06, Artikel 1, 5 (b); BRDrucks 462/06, (a), (bb), (aaa). For a thorough discussion of
federal-Land competences in environmental regulation, see Annegret Eppler, Föderalismus-Reform in
Deutschland: die geplannte Kompetenzverteilung in der Umweltpolitik, in JAHRUCH DES FÖDERALISMUS 2006
200-219 (2006). See also Kesper, supra note 24, at 151.
50
Kesper, supra note 24, at 151; Huber, supra note 22, at 49.
51 A Bundestag-Bundesrat working group began discussions on finance reform in December 2006. For
some of the reasons why it will be difficult to achieve a compromise on this part two of federalism
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paragraph 3, states that the provisions of the Solidarity Pact II are not to be
changed, and any general finance reform would have to have made significant
changes. This omission and the unwillingness to attack the issue of territorial
reform show clearly that the poor Länder (especially in the East) and the small
Länder, particularly Bremen and the Saarland in the West, will resist and, if
possible, block any finance reform that would threaten, respectively, the current
level of fiscal equalization or their autonomous existence. Yet a general finance
reform—and, many would add, a territorial reform52—are necessary to give teeth to
the federalism reform amendments of 2006.
There will, of course, be a flood of articles and books in the near future concerning
the positive and negative aspects of the federalism reform of 2006 and future
developments derived from the reform measures.53 Already one observer has
reached a “sobering conclusion” by suggesting that the reform did not accomplish
its main goals of strengthening the decision-making ability of the federation,
strengthening Länder competences, making lawmaking less complicated, or making
lawmaking more transparent and understandable for citizens. Indeed, the reform
measures that did pass were brought about in large part by public expectations that
were awakened by the attention the reform process received. In short, the author
contends, the reform is a package of compromises that demonstrates the inability of
the German political system to deliver meaningful reform.54
It should not be forgotten, however, that federalism reform, “the mother of all
reforms,” seemed mortally wounded if not dead on 17 December 2004, when the
co-chairs of the Federalism Commission announced that agreement could not be
reached by the Commission on a number of issues. It also should not be forgotten
that discussion about and proposals for reform were major topics for many years
before the Commission was formed in 2003, that beyond a general consensus in
favor of reform there was little agreement on details, and that, after all, a two-thirds
majority would be required in the Bundestag and Bundesrat for amendments to the
Basic Law. That compromise would be necessary with so many ideological,
political, regional, and even personal interests at stake in a political system that
reform, see Wolfgang Renzsch, Föderalismusreform II and Manfred Schäfers, Vor dem Finanzpoker,
FRANKFURTER ALLGEMEINE ZEITUNG, December 15, 2006, at 8 and 18.
See, e.g., Uwe Leonardy, Territorial Reform of the Länder: A Demand of the Basic Law, in GERMAN PUBLIC
POLICY AND FEDERALISM 65 (Arthur B. Gunlicks ed., 2003); Huber, supra note 22, at 125-128.
52
53 For a number of articles that appeared too late to be incorporated in this paper, see Föderalismusreform,
AUS POLITIK UND ZEITGESCHICHTE 50 (11 December 2006).
54
Kesper, supra note 24, at 158.
2007]
German Federalism Reform: Part One
131
values consensus55 should not be surprising; nor is it surprising that many
observers with their own agendas are disappointed with the final results. Whether
the negative assessment in the paragraph above is too harsh, whether the reform
will show mixed results, or whether it will even be generally successful in
achieving its goals will be a topic of great interest to constitutional scholars,
politicians, journalists, and the attentive public in the coming years.
55
Huber, supra note 22, at 51.
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DEVELOPMENTS
The Introduction of Real Estate Investment Trusts [REITs]
in Germany
By Constantin M. Lachner and Rafael von Heppe*
A. Introduction!
The German Real Estate Investment Trust – or, G-REIT – is in the centre of interest
in Germany these days and expected to be introduced in Germany in the beginning
of 2007. After a preparation phase initiated in 2003 by a lobbying group (“IFD”)1
under the former2 German government, the new government has most recently
drafted a bill with respect to the introduction of G-REITs (“bill”).3 This bill remains
to be subject to parliamentary discussion and is likely to be partially modified
before its final adoption: in addition to its passage in the Bundestag (Federal
Parliament), it requires the approval of the Bundesrat (German Federal Council).
Following its first reading it will be committed to the Financial Committee, which
will conduct hearings. However, the legislator intends to pass the bill in the first
quarter of 2007 to take retroactive effect as of 1 January 2007.4 This essay intends to
outline fundamental corporate, capital market, and tax related G-REIT parameters
provided for by the G-REIT Act in its present form.
Constantin Lachner is partner of the law firm, LACHNER GRAF von WESTPHALEN SPAMER,
Frankfurt, Germany (www.lws-law.com); Rafael v. Heppe is employed as associate in the same firm.
Email: [email protected]; [email protected].
*
!
An earlier version of this paper was presented at the Conference of the Canadian-German Lawyers
Association in Toronto, Canada, 11 May 2006.
1
“Initiative Finanzstandort Deutschland” (www.finanzstandort.de).
2
German general elections took place in September 2006, resulting in a change of government.
3 Entwurf eines Gesetzes zur Schaffung deutscher Immobilien-Aktiengesellschaften mit börsennotierten Anteilen
(Draft of an Act introducing German Real Estate Stock Corporations with listed shares), dated
2 November 2006, available online at: http://www.bundesfinanzministerium.de/lang_de/nn_82/
nsc_true/DE/Aktuelles/Aktuelle__Gesetze/Gesetzentwuerfe__Arbeitsfassungen/007,templateId=rend
erPrint.html (last visited 22 December 2006)
4 Art. 7 of the bill. The G-REIT Act will be published in the Bundesgesetzblatt (German Federal Law
Gazette).
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B. Background of the G-REIT Legislation
By introducing REITs, Germany follows various international paradigms.5 Yet, the
present bill testifies to a considerable number of specific variations ‘made in
Germany’. The bill is the outcome of political discussions between the Bundesfinanzministerium (Federal Ministry of Finance - BMF), the political parties, the IFD as
most involved lobbying group, and other interest groups6 about considerable tax
issues raised by the planned Act. The taxation-related linchpin of the REIT
legislation is the idea of tax exempting the REIT company, binding it to distribute
most of its profits to its shareholders, and collecting taxes on shareholder level, a
concept conceived as supporting above all tax transparency.
The first aspect, the tax exemption, has been highly controversially disputed, as it
privileges the REIT company towards other company forms. The BMF considers
the REIT necessary to preserve Germany’s competitiveness on international
financial markets and to maintain jobs for highly skilled employees. Furthermore,
the introduction of REITs is expected to have strong positive fiscal and economic
impacts:7 Germany has by far the largest real estate reservoir in Europe, which at
this time remains, for the most part, not yet institutionally invested, but owneroccupied or held by private owners.8 Channelling these assets to REITs would
make bound resources more fungible, release current owners from the complex
everyday management of real estate, opening up substantial efficiency gains. As
highly regarded investment vehicles, REITs are expected to be more attractive to
foreign investors. Different from traditional real estate investments, a REIT
investment is independent of the individual financial capacity of the investor.
5 E.g. US-“REITs” (since 1960), Dutch “Fiscale Beleggingsinstelling” (“FBI”, since 1969), Australian
“Listed Property Trusts” (since 1971), Canadian “REITs” (since 1994), Belgian “Société d’Investissement
à Capital fixe en Immobilière” (SICAFI, since1995), Japanese “J-REITs” (since 2001), South Korean “KREITs” (since 2001), Singaporean “S-REITs” (since 2002), French “Sociétés d’Investissement Immobiliers
Cotées” (“SIIC”, since 2003), Hong Kong “H-REITs” (since 2003), British “Property Investment Funds”
(“PIF”, starting 2007).
6 E.g. the “Deutscher
www.mieterbund.de).
7
Mieterbund”
(German
umbrella
organization
of
tenants
-
DMB,
See the purpose of a G-REIT Act under A. I. of the bill’s explanatory statements.
8 There is a total estimated real estate reservoir of about 7,200 billion €. So far, only a very small fraction
of it – valued approximately 400 billion € – is held by institutional investors. The value of real estate held
by other companies is estimated to be 1,500 billion €. About 73% thereof is owner-occupied commercial
real estate, e.g. production sights, office buildings etc. In comparison, British companies occupy only
54% of their real estate assets, and in the US the respective figure is only 25%. By far, the lion’s share of
German real estate is owned by private individuals (approx. 5,300 billion €), see A. I. of the bill’s
explanatory statements.
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Real Estate Investment Trusts in Germany
135
As a consequence of the tax exemption, REIT legislation has to take into account
specific taxation issues on the shareholder level, especially with respect to the
taxation of foreign investors, which in many cases may fall under double taxation
agreements. Central here is the problem of tax equity applied when taxation on
shareholder level only affects German investors, whereas foreign investors enjoy
tax reduction or even tax exemption.
C. The G-REIT
I. Corporate Structure of a G-REIT
According to Section 1 para. 1,9 a G-REIT is a stock corporation whose business
purpose is limited to:10
(a) acquiring, holding, managing by renting out and leasing, including essential
property-related ancillary business, and selling of real property11 or rights of use of
real property, except for appartments built before 1 January 200712, and
(b) acquiring, holding, managing, and selling shares in real estate business
partnerships,13
and whose shares are listed on an organized market within the European Economic
Area (“EEA”), not necessarily in Germany.14 Therefore, the Aktiengesetz (German
9
If not stated otherwise, quotations within this essay refer to the regulations of the bill.
10 Specifically, the G-REIT may not engage in trading real estate; the bill considers as trade if the G-REIT
has, within five years, gross revenues from the sale of real estate which exceed 50% of the value of the
average holdings of real estate within the same period, Section 14.
11
Real property may be located in or outside Germany.
The exception of appartments built before 1 January 2007, so called “Bestandsmietwohnungen”, has
been most recently included into the bill as concession to opponents of the G-REIT Act who fear that
profit maximizing G-REITs will raise rents and reduce tenant protection to a minimum; however, this
exception and its argumentation is highly disputable and may be questioned again.
12
13 Specifically, the G-REIT may not hold shares in limited liability companies that in turn own real
estate.
14 The listing shall assure that G-REITs do not compete with, but rather complement existing real estate
investment vehicles such as Open Property Funds. If listed in Germany, G-REITs may be listed on the
organized market in terms of Section 2 para. 5 of the Securities Trading Act, i.e. on the so called official
market in terms of Sections 30 et seq. of the Börsengesetz (Stock Exchange Act - BörsG) (“amtlicher Markt”)
or the organized market in terms of Sections 49 et seq. of the Stock Exchange Act (“geregelter Markt”),
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Stock Corporation Act - AktG) and the Handelsgesetzbuch (German Commercial
Code - HGB) apply to G-REITs as long as the G-REIT Act does not provide
otherwise.15 Moreover, due to the requirement of listing the codes of conduct with
respect to listed stock corporations of the Wertpapierhandelsgesetz (Securities Trading
Act - WpHG) are observed.16
The G-REIT has to have its official residence17 and its management18 in Germany. It
requires a share capital of at least 15 million Euro,19 which has to be fully paid up;
each share must grant the same rights.20 The company name has to include the
words “REIT-Aktiengesellschaft” or “REIT-AG” which are exclusively reserved to GREITs.21 As such it is to be registered with the Commercial Register.22
Before becoming a G-REIT, the stock corporation passes the stadium of a preREIT.23 This is a stock corporation resident in Germany,
(a) having the same limited business purpose as a G-REIT,
(b) complying with the G-REIT requirements regarding its asset structure,24 and
(c) being registered as pre-REIT with the Bundeszentralamt für Steuern (German
Federal Central Tax Authority - “BZSt”).25
but not on the inofficial market in terms of Sections 57 of the Stock Exchange Act (“Freiverkehr”); see the
bill’s explanatory statements under B. Article 1 Section 10.
15
Section 1 para. 3.
16
E.g. insider rules according to Sections 12 et seq. of the Securities Trading Act, etc.
17
Section 1 para. 2.
18 Section 9. The bill does not exclude consulting external investment advisors, such as asset managers;
this might be recommendable, however, calling external advisors may smoothly blend to turning away
from the AG’s corporate structure if the board of directors only controls the advisors.
19 Section 4; the legislator considers this amount as usual minimum capitalisation for listing; see the
bill’s explanatory statements under B. Article 1 Section 4. However, experience shows that by far higher
capitalisation is recommendable for listing.
20
Section 5.
21
Sections 6 and 7.
22
Section 8.
23
Section 2.
24
Section 12, see below.
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Real Estate Investment Trusts in Germany
137
The pre-REIT already enjoys certain tax privileges26 as long as it applies for listing
on an organized market within three years27 after its application for registration
with the BZSt.28
II. G-REIT Requirements
To enjoy G-REIT tax privileges29 on an ongoing basis and to prevent being
sanctioned by the imposition of penalty fees30, the G-REIT has to meet a number of
legal requirements ruled in the second chapter of the bill, Sections 8 to 15, and set
forth as follows.
The G-REIT requires a free float of at least 15% of the shares or, in the moment of
listing on the organized market, of at least 25%, in order to allow small investors to
participate in fungible real estate investments.31 The free float is defined as the sum
of all shares held by shareholders, who each individually have less than 3% of the
G-REIT’s total voting rights.32 The G-REIT has to annually notify the Bundesanstalt
für Finanzdienstleistungsaufsicht (German Federal Financial Supervisory Authority “BAFin”) of the free float quota, who in turn notifies the BZSt, if the free float quota
falls below 15%.
No shareholder may directly hold 10% or more of the shares. Shares held for thirdparty account are deemed to be held by the third party.33 Holding 10% or more of
the shares in the short term34 does not affect the G-REIT’s tax exemption, nor does
25 The stock corporation is registered as pre-REIT if in the application it asserts, and if necessary proves,
that it complies with the other pre-REIT requirements.
26
With respect to the Exit Tax, Article 2 of the bill.
27
This term may only be extended under certain external conditions for another year, Section 10 para. 2.
28
Section 10.
29
See infra.
30
See in each case the footnotes of a requirement.
31
See the bill’s explanatory statements under B. Article 1 Section 11.
32
Section 11.
33
Section 11 para. 4.
If the 10% limit set forth in Section 11 para. 4 is ignored for three consecutive years, the G-REIT loses
its tax exemption, Section 18 para. 3.
34
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the respective shareholder lose his dividend or voting right;35 however, he may not
take advantage of the violation.36
After dividend distribution and allocation to reserves, at least 75% of the G-REIT’s
total assets have to consist of real estate.37 At least 75% of the gross yields have to
arise from renting out, leasing, and selling of real estate.38 The G-REIT may raise
credits only to the maximum of 60% of its total assets, on marketable conditions,
and if provided for in the Articles of Association.39
The G-REIT may provide additional services to third parties such as real estate
management only by a REIT service company. These service company’s assets may
not exceed 20% of the G-REIT’s total assets after dividends and reserves, and its
gross yields may not exceed 20% of the G-REIT’s total gross yields.40
At least 90% of the G-REIT’s distributable profits (according to the annual accounts)
have to be distributed to the shareholders within the following business year.41
D. Taxation with respect to G-REITs
I. Tax Exemption on G-REIT Level
According to Section 16 para. 1 of the bill, a G-REIT complying with the
requirements according to Sections 8 to 15 is exempted from trade tax. Furthermore
it is exempted from corporate tax, if it is (i) in principle subject to corporate tax and
35
Section 16 para. 2.
36 E.g. as regards the withholding tax rate according to an applicable double taxation agreement, see the
bill’s explanatory statements under B. Article 1 Section 16.
37 As a first sanction of non-complying with this requirement in the end of the business year, the Tax
Authority in charge determines a penalty fee dependent on the extent of non-compliance, Section 16
para. 3.
38 Section 12. Assets are evaluated at their market values. Non-compliance with this requirement is
sanctioned by the Tax Authority in charge by means of a penalty fee dependent on the extent of noncompliance, Section 16 para. 4.
39 Section 15. The bill only provides for bank financing; it is to be hoped that the G-REIT Act will
provide for financing on capital markets by floating bond issues or participating certificates, too.
40
Section 12. Assets are evaluated at their market values.
41 Section 13. Non-compliance with this requirement is sanctioned by the Tax Authority in charge by
means of a penalty fee dependent on the extent of non-compliance, Section 16 para. 5.
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(ii) not deemed to be resident in another state according to any double taxation
agreement.42
Tax exemption is for the first time applicable with respect to the business year in
which the G-REIT as such is registered with the Commercial Register.43 Tax
exemption is limited to the G-REIT itself and does not apply for its subsidiaries. Tax
exemption ends if:
(a) the G-REIT loses its listing on an organized market within the EEA, effective as
of the end of the business year preceding the loss;44
(b) the G-REIT engages in trading real estate, effective as of the beginning of that
business year;45
(c) within three consecutive business years less than 15% of the shares are in free
float, effective as of the end of the third year;46 or within three consecutive business
years the 10% maximum shareholding limit set forth in Section 11 para. 4 is
ignored, effective as of the end of the third year;47
(d) within three consecutive business years raised credits exceed the maximum of
60% of the G-REIT’s total assets, effective as of the end of the third year;48
(e) within three consecutive business years the G-REIT qualifies for being
sanctioned by imposition of a penalty fee, each year according to the same
Section 16 para. 3, 4, or 5, effective as of the end of the third year;49
42 Different from the REIT legislation in the U.S., Great Britain, and France, the G-REIT’s tax exemption
is fully granted; especially, it is not limited with respect to distributed profits or profits generated by
characteristic REIT business. Thereby, the legislator intended to assure the inapplicability of the EU
Parent Subsidiary Directive, see the bill’s explanatory statements under B. Article 1 Section 16. In
international comparison, quite a substantial part of the G-REIT’s income is privileged.
43
Section 17.
44
Section 18 para. 1.
45
Section 18 para. 2; for definition of trade see footnote no. 10.
46
Section 18 para. 3.
47
Section 18 para. 3.
48
Section 18 para. 4.
49
Section 18 para. 5.
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(f) within five consecutive business years the G-REIT qualifies for being sanctioned
by imposition of a penalty fee, each year according to any of the Sections 16 para. 3,
4, or 5, effective as of the end of the fifth year.50
II. Exit Tax
Under specific circumstances and limited in time, a so called “Exit Tax” grants tax
reduction to those who contribute real estate to a G-REIT. Generally, the initial
transfer of real estate to a pre-REIT or G-REIT discloses hidden reserves in real
estate. This disclosure of hidden reserves leads to an increase in value, which in
turn leads to a realisation of profits. According to applicable German tax law, these
profits are subject to full taxation. By the Exit Tax, the legislator intends to give the
necessary incentives, since the G-REIT is reliant on substantial contributions of real
estate to establish itself on financial markets.51
According to Article 2 of the bill, only 50% of the profits realised by the disclosure
of hidden reserves are subject to income tax, if the real estate to be transferred
belonged to the contributor’s assets for more than 10 years and the contribution sale
is effectively agreed upon after 31 December 2006 and before 1 January 2010.52 Sale
and lease-back is permitted.
However, the acquiring pre-REIT or G-REIT has to own the contributed real estate
for at least four years. Otherwise, or if the pre-REIT does not become a REIT within
that period, the Exit Tax exemption is retroactively inapplicable and the acquirer is
liable to pay residual taxes.
III. Real Estate Transfer Tax
The above mentioned Exit Tax does not affect the provisions regarding real estate
transfer tax. Therefore, the transfer of real estate triggers the ordinary transfer tax.53
In this respect, the legislator expects substantial increase in tax earnings.
50
Section 18 para. 5.
51 Furthermore, the financial administration expects an increase in tax earnings due to the disclosure of
hidden reserves.
The Exit Tax is also applicable to transfers of real estate to pre-REITs and German real estate special
assets in terms of Section 66 of the Investmentgesetz (German Investment Act).
52
So far, the transfer tax rate is 3.5% in Germany; however, in consequence of the reform of federalism
in Germany, each state (“Bundesland”) may determine its own tax rate. The communal estate of Berlin,
for example, plans to invent a transfer tax rate of 4,5%.
53
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IV. Taxation on Shareholder Level
The main taxation is intended to occur on the shareholder level. Distributed profits
and all other benefits granted to the shareholders are income from capital and
therefore subject to corporation tax, if the shareholder is a corporation, or income
tax, if the shareholder is an individual. This shall also apply for profits gained
outside Germany which will then be subject to double taxation. In case of income
from a shareholding in a G-REIT, general reductions of the taxable income, as
provided for under German Tax Law, such as the exemption of 95% of the
dividends distributed to corporate shareholders or the exemption of 50% of the
dividends distributed to individuals (“Halbeinkünfteverfahren”), do not apply.54
As far as profits by the sale of shares are concerned, they are subject to general
taxation rules; however, again, the Halbeinkünfteverfahren does not apply.
Accordingly, gains from the sale of shares held privately are tax exempted if a
participation of less than 1% of the shares of the G-REIT was held for more than a
year. Dependent on the applicability of double taxation agreements, foreign
investors may be tax exempted in Germany. Otherwise, capital gains from the sale
of shares are fully taxable.55
In any case, the G-REIT’s profit distributions are subject to withholding tax at a rate
of 25%.56 When setting up the bill, this taxation at source led to a highly discussed
issue in Germany: the risk of a substantial loss in tax revenues, from the Tax
Authorities’ point of view, to the advantage of foreign shareholders who may refer
to applicable double taxation agreements and reduce their tax rates.57 Therefore,
Section 11 para. 4 of the bill provides for a 10% maximum shareholding.58
54
Section 19 para. 1. This applies also to income from foreign REITs, Section 19 para. 2 and 6.
55 Section 19 para. 5. This leads to double taxation of income from G-REIT service companies and foreign
subsidiaries holding real estate. The legislator has realized this double taxation; it is to be hoped that
ways of exemption will be opened.
Section 20 para. 1 and 2. This guarantees that, in principle, every investor is subject to tax in a first
step and may – under certain circumstances – apply for repayment or set-off of tax paid. In comparison
to taxation of other stock corporations’ distributions, the higher tax rate of 25% is justified for tax
transparency reasons.
56
57 According to the “OECD Model Convention with Respect to Taxes on Income and on Capital” from
2003 (OECD-MC), income from dividends may be subject to taxation under the regulations of the
investor’s home country. Then, taxation in Germany is generally limited to 15% according to Article 10
para. 2 of the OECD-MC.
Instead, G-REIT income could have been classified as “income from immovable property” according
to Article 6 OECD-MC, with the consequence of full taxation in the country where the property is
58
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E. Perspectives
There are great expectations placed in the G-REIT: accordingly, a swift introduction
of G-REITs is expected to fill a national gap in the international range of real estate
investments, to vitalize the business location Germany, and to professionalize the
German real estate economy. By planning to enforce the G-REIT Act retroactively
as of 1 January 2007, the German legislator proves to strive for competitiveness of
the German financial business to other European locations.
situated. According to Article 6 para. 2 OECD-MC, the term “immovable property” shall have the
meaning which it has under the law of the country in which the property is situated.