Survey
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
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. * 2 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). 4 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 6 [Vol. 08 No. 01 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 GERMAN LAW JOURNAL [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. 10 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 12 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 14 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 16 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 18 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 20 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. * 22 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 24 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 2007] 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 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 2007] Reviewing Governmental Acts of the United Nations in Kosovo 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). 28 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 2007] 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). 30 GERMAN LAW JOURNAL [Vol. 08 No. 01 (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). 2007] 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. 32 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 2007] 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. 34 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 2007] Reviewing Governmental Acts of the United Nations in Kosovo 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. 36 GERMAN LAW JOURNAL [Vol. 08 No. 01 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- 2007] 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. 38 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 40 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 42 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 44 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 2007] 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). 46 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 48 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 2007] 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 50 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 52 GERMAN LAW JOURNAL [Vol. 08 No. 01 “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”). 54 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 56 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 58 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 60 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 . 62 [Vol. 08 No. 01 GERMAN LAW JOURNAL 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 [Vol. 08 No. 01 GERMAN LAW JOURNAL 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 . 66 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. 68 GERMAN LAW JOURNAL [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 70 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 72 [Vol. 08 No. 01 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 . 76 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 78 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 80 GERMAN LAW JOURNAL [Vol. 08 No. 01 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]. 82 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 84 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 86 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 88 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 90 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 92 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 94 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 96 No. 01 GERMAN LAW JOURNAL [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. 98 No. 01 GERMAN LAW JOURNAL [Vol. 08 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 99 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. 100 No. 01 GERMAN LAW JOURNAL [Vol. 08 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. 102 No. 01 GERMAN LAW JOURNAL [Vol. 08 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 103 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. 104 No. 01 GERMAN LAW JOURNAL [Vol. 08 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] Book Review 105 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. 106 No. 01 GERMAN LAW JOURNAL [Vol. 08 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] Book Review 107 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 108 No. 01 GERMAN LAW JOURNAL [Vol. 08 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] Book Review 109 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. 110 No. 01 GERMAN LAW JOURNAL [Vol. 08 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). 3 112 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 113 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. 114 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 14 116 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 118 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 120 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 121 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. 122 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 124 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 126 GERMAN LAW JOURNAL [Vol. 08 No. 01 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] German Federalism Reform: Part One 127 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. 128 GERMAN LAW JOURNAL [Vol. 08 No. 01 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 2007] 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 130 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 132 GERMAN LAW JOURNAL [Vol. 08 No. 01 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). 134 [Vol. 08 No. 01 GERMAN LAW JOURNAL 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. 2006] 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”), 136 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 2006] 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. 34 138 GERMAN LAW JOURNAL [Vol. 08 No. 01 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. 2006] Real Estate Investment Trusts in Germany 139 (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. 140 GERMAN LAW JOURNAL [Vol. 08 No. 01 (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 2006] Real Estate Investment Trusts in Germany 141 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 58 142 GERMAN LAW JOURNAL [Vol. 08 No. 01 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.