In  recent  years  there  has  been  a  resurgence  in  projects  where  territorial units  are  administered  by  international  organizations

Wilde, Ralph

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FROM BOSNIA TO KOSOVO AND EAST TIMOR:THE CHANGING ROLE OF THE UNITED NATIONSIN THE ADMINISTRATION OF TERRITORYRalph Wilde*In recent years there has been a resurgence in projects where territorialunits are administered by international organizations. In Bosnia andHercegovina ('Bosnia'), Kosovo and East Timor, international organizationshave been given wide powers of administration, covering a broad range ofactivities. I am currently undertaking a study of this phenomenon, what I term'International Territorial Administration' (ITA). Today, I would like to makesome observations on the role of the United Nations in creating and carrying outthe administration projects in these three territories.With respect to Bosnia, the starting point is the General FrameworkAgreement of 1995, collectively known as the Dayton Agreement.' Annex 10of the Dayton Agreement established the Office of the High Representative(OHR), with responsibility for the implementation of civil administration inBosnia.2 The civilian role of OHR is complemented by the military role of theNATO-led body, called at first the Implementation Force (IFOR), and later theStabilization Force (SFOR). Annex 1-A of Dayton invites the Security Councilto establish IFOR, effectively granting the force total military control inBosnia.'The Dayton Agreement also allocates further aspects of Bosnia'sadministration to other international actors, from the Organization for Securityand Co-operation in Europe (OSCE) being requested to set up and run theelectoral system, 4 to three members of the Constitutional Court being appointedby the President of the European Court of Human Rights.5* Whewell Scholar, Trinity College, Cambridge CB2 ITQ, UK. This paper was delivered in the"Development of International Law" panel of the International Law Association (American Branch) AnnualConference, New York, November 6, 1999. The author would like to thank Professor James Crawford SCfor his helpful comments on an earlier draft and the Trustees of the Trinity College Eddington Fund for theirgenerous support that enabled the author to attend the conference.1. Bosnia and Hercegovina - Croatia - Yugoslavia: General Framework Agreement for Peace inBosnia and Hercegovina with Annexes, Dec 14,1995, 35 I.L.M. 75 (1996) [hereinafter Dayton Agreement].2. Dayton Agreement, supra note 1, at 147.3. Id. at 92.4. Id. at 115.5. Id. at 118.468 ILSA Journal of International & Comparative Law [Vol. 6:467The formal participants in the Dayton Agreement and the Annexes varybetween the different instruments, being drawn from Bosnia, Croatia, theFederal Republic of Yugoslavia (FRY), and the two Entities that make upBosnia. A common theme, however, is that the relationship between theseparticipants, on the one hand, and the subject matter of the Dayton Agreement,on the other, is incongruous. Only a small part of the Dayton Agreement isconcerned with the obligations inter se of the formal participants, for examplerefraining from the use of force.6 Most of the Dayton Agreement sets out howBosnia and its two Entities will function internally and the powers ofinternational organizations over this. None of the organizations involved areformal participants, apart from two limited areas. First, Annex 1-B is a seriesof agreements "between" NATO and Bosnia and Hercegovina, Croatia, and theFRY.7 It is notable that, unlike the other Annexes, the status of the formalparticipants, such as being "parties," is not specified. Annex 1-B is.comparatively minor, covering matters ancillary to the main powers outlined inAnnex 1-A, to which NATO is not a party.' Second, SFOR and OHR, despitenot being parties to the Annexes that set out their main powers, are each givenfinal authority in theatre to interpret the provisions of their respective Annex.9Sweeping powers, and the final authority in theatre to interpret these powers,are therefore given to international organizations that are not parties to theagreements that give them these powers. A further peculiarity is that one ofthese organizations, OHR, is not only empowered, but also created by therelevant agreement.°The legal authority for the arrangements in Bosnia and Hercegovina doesnot stop at the Dayton Agreement. In Resolution 1031 of December 15, 1995,the Security Council, acting under Chapter 7, supports the Dayton Agreementand in particular OHR and SFOR's prerogatives.1" It also authorizes theestablishment of SFOR.'2 This Resolution thereby realizes the DaytonAgreement's invitation to authorize a military force 13 and makes certainprovisions of the Dayton Agreement binding as a matter of Security Councillaw, in addition to their status in treaty law.6. Id. at 92.7. Dayton Agreement, supra note 1, at 109.8. Id. at 92.9. Id. at 100, 148.10. Id. at 147.11. United Nations: Report of the Secretary General on the Transition from UNPROFOR to IFORand Addendum on Cost Estimates, Including Security Council Resolutions 1031 (1995) and 1035 (1995),Addressing the Political Settlement in the Former Yugoslavia and the Transfer of Power from UNPROFORto IFOR December 13-21, 1995, Dec. 15, 1995, 35 I.L.M. 235 (1996) [hereinafter Resolution 1031].12. Id. at 253.13. Dayton Agreement, supra note 1, at 92.Turning to the international administration in Kosovo, the starting pointis the Peace Plan of June 3, 1999 (Peace Plan). 4 The FRY and the Republicof Serbia agree to the deployment of an international civil and securitypresence, authorized under Chapter 7.V' Like most of the Dayton AgreementAnnexes, the Peace Plan is a one-sided acceptance of internationaladministration by host country actors, without the participation of thoseorganizations that will carry out this administration. However, a separateagreement was made between KFOR, the FRY and the Republic of Serbia onJune 9, 1999, authorizing in some detail the plenary occupation and control ofKosovo by KFOR (KFOR Agreement).' 6 Unlike in Bosnia, therefore, themilitary force is a party to the main agreement delineating its powers. 7The terms of both the Peace Plan and the KFOR Agreement make thearrangements they contain dependent on authorization by the SecurityCouncil. 8 This came in Resolution 1244, passed on June 10, 1999."9 TheSecurity Council, acting under Chapter 7, endorses the Peace Plan andwelcomes the KFOR Agreement. 20 It also authorizes the establishment of aninternational security force and elaborates on the powers of this force.2' Here,as with Bosnia, the Security Council reinforces existing obligations, and createsnew obligations regarding a military force. The difference is that in additionto this, it authorizes the Secretary General to establish an international civilpresence, now called UNMIK, and sets out in full the powers of this presence.2The role of the United Nations is even more pronounced in the East Timoradministration project. In Resolution 1272, passed on October 25, the SecurityCouncil, acting under Chapter 7, established the United Nations TransitionalAdministration in East Timor, (UNTAET).23 In the words of the resolution,14. Letter Dated 7 June 1999 From the Permanent Representative of Germany to the UnitedNations Addressed to the President of the Security Council, U.N. Security Council, U.N. Doc. S/1999/649(1999) <http://www.un.orgtpeace/kosovols 1999649.pdf> (Agreement on the principles (peace plan) to movetowards a resolution of the Kosovo crisis presented to the leadership of the Federal Republic of Yugoslaviaby the President of Finland, Martti Ahtisaari, representing the European Union, and Viktor Chernomyrdin,Special Representative of the President of the Russian Federation, 3 June 1999) [hereinafter Peace Plan].15. Id. at art. 3.16. Military-technical Agreement Between the International Security Force (KFOR) and theGovernments of the Republic of Yugoslavia and the Republic of Serbia, U.N. Security Council, U.N. Doc.S/1999/682 (1999) <http://www.un.org/peace/kosovo/s99682.pdf> [hereinafter KFOR Agreement].17. Dayton Agreement, supra note 1, at 92.18. Peace Plan, supra note 14; KFOR Agreement, supra note 16, at art. 1.2.19. G.A. Res. 1244, U.N. Security Council, 4011 th mtg., U.N. Doc. S/RES/1244 (1999)<http://www.un.org/Docstscres/1999/99sc1244.htm> [Hereinafter "Resolution 1244"].20. ld. at arts. 1-2, 5.21. Id. at arts. 7, 9.22. Id. at arts. 6, 10, 11.23. G.A. Res. 1272, U.N. Security Council, 4057 th mtg., U.N. Doc. S/RES.1272 (1999)<http://www.un.org/peace/etimor/9931277E.htm> [hereinafter Resolution 1272].20001 Wilde 469470 ILSA Journal of International & Comparative Law [Vol. 6:467UNTAET is given "overall responsibility for the administration of East Timorand will be empowered to exercise all legislative and executive authority."'24Strikingly, the mission includes its own military component, with a "strengthof up to 8,950 troops."'2Taking the three projects together, we can see a shift in the role played bythe United Nations. As for creating the projects with Bosnia, the SecurityCouncil played a secondary role, essentially giving the Dayton Agreement itsseal of approval. With Kosovo, it determined more of the project itself,especially the civil component. With East Timor, Resolution 1272 is the mainlegal authority for all aspects of the project. Of course, with Bosnia andKosovo the states who used diplomatic means to trigger the formal legalprocesses were largely the same. The Contact Group countries who brokeredthe Dayton Agreement were also instrumental in the adoption of the KosovoPeace Plan, the KFOR Agreement, and Resolution 1244.26 The change asbetween Bosnia and Kosovo was that these states channeled their diplomaticefforts much more through the United Nations legal system than through ad hoclegal processes.Differences in the legal processes setting up the projects mirror changesin the actors carrying them out. As for the civil component, in Bosnia andHercegovina the main role is performed by a sui generis entity. By contrast, inKosovo and East Timor it is controlled by the United Nations. As for themilitary component, in Bosnia and Hercegovina and Kosovo this is conductedby an international force authorized by the Security Council. It is only in EastTimor that the United Nations takes on the military component ofadministration itself.I would make three observations on this renewed role for the UnitedNations.Having such international administration projects authorized through theSecurity Council may be a positive development. An important objective ofinternational administration is, of course, to assist a particularly weak territorialentity. When this is effected through a treaty signed by the entity concerned,the weakness of this entity renders consent meaningful particularly in a narrow,formal sense. In a more general sense, international administration projects areimposed. Given this, such projects should be legally authorized through a24. Id. at art. 1.25. Id. at art. 9.26. The Contact Group is made up of the European Union, France, Germany, Russia, the UnitedKingdom and the United States. These countries appear as 'witnesses' to the Dayton Agreement, supra note1. The Peace Plan, was negotiated by the President of Finland, Martti Ahtisaari, representing the EuropeanUnion, and Viktor Chemomyrdin, Special Representative of the President of the Russian Federation, supranote 14. NATO, whose members include France, Germany, the United Kingdom and the United States,signed the KFOR Agreement, supra note 16.process with the power of unilateral imposition, namely the Security Councilacting under Chapter 7. Furthermore, the changing nature of an administrationproject requires a regulatory regime that operates flexibly. In this respect, thecomparatively quick process of adopting Security Council resolutions comparesfavorably with the cumbersome process of treaty-making and revision.However, the fact that the United Nations both authorizes and carries outinternational administration projects is a mixed blessing. The Security Councilscrutinizes keenly those operations that are set up and run by the UnitedNations. At the same time, concentrating the creation, conduct and regulationof international administration through one actor raises concerns about theefficacy of checks and balances, even given the constitutional and politicaldifferences between the Security Council and United Nations missions.Finally, it is too early to tell whether the United Nations will succeed incarrying out its responsibilities in Kosovo and East Timor. For some, amultilateral institution is the appropriate actor for the conduct of this activity,and the United Nations brings a wealth of experience and expertise. Those witha less favorable view of the United Nations would prefer sui generis and/or,regional organizations to carry out international administration projects. Itremains to be seen whether the United Nations can fulfill what are two of themost ambitious mandates it has ever been given. The role the United Nationsplays in future administration projects, and indeed whether futureadministrative projects are created, depends largely on what happens in Kosovoand East Timor.2000] Wilde

From Bosnia To Kosovo And East Timor: The Changing Role Of The United Nations In The Administration Of Territory

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From Bosnia To Kosovo And East Timor: The Changing Role Of The United Nations In The Administration Of Territory

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