United Nations Administrative Missions

 

By Markus A. Wagner

 

Compared to traditional peacekeeping operations, United Nations administrative missions do not involve large-scale military deployments.  However, they do not possess mere diplomatic character. Rather, these missions – a development beyond the traditional bounds of peace-maintenance[1] – require a long-term and potentially large-scale commitment of the international community.[2] 

 

Historical predecessors trace back as far as the League of Nations.  The administration of the German region of the Saar between 1920 and 1935 and the guardianship over the city of Danzig/Poland include some of the characteristics of recent UN missions.[3] 

 

Attempts to implement similar concepts took place under the United Nations after 1945, some of which were successful.  These include the attempt to administrate the city of Trieste,[4] which ultimately failed when the territory was divided in 1954.  Other missions included the United Nations Operation in Congo (ONUC), which acted under the supervision of the Security Council and the United Nations Temporary Executive Authority in West New Guinea (UNTAE), established by the General Assembly in 1962.

 

After the establishment of UNTAE in 1969, the Cold War put a stop to implementing other administrative missions.  This period lasted until the United Nations Transition Group in Namibia was established to “ensure the independence of Namibia through free and fair elections under the supervision and control of the United Nations” in 1978.[5]  This mission was followed by the United Nations Transitional Authority in Cambodia (UNTAC) and the United Nations Transitional Administration for Eastern Slavonia (UNTAES).

 

The analysis of UN practice in this field has led to a classification of these missions in three categories.  The first category is built upon the premise that the final governmental authority remains with the administered state, while international agents assist in the administration of the territory.  A second type of mission includes the partial and provisional takeover of governmental functions over a given territory.  These missions are based on the premise that the final authority in any decision taken rests with the international agents.  Finally, the third category is characterized by a temporary, but complete takeover of governmental functions by the organization guaranteeing a normal functioning of the state until national reconstruction has advanced to a point where democratically elected institutions may resume their functions.[6] 

 

Legal Basis

 

The Charter of the United Nations does not provide for any attempt to bring peace and security to a given region by means of administrative missions.  This forces the question of the legal basis for such missions.  As in the case of criminal tribunals such as the ICTY and ICTR, it is submitted that the Security Council has a wide discretion in order to restore peace and international security.[7]  Although it could be argued that such an involvement of the United Nations runs counter to the principle of non-intervention laid down in Art. 2 (7) of the Charter of the United Nations, it is necessary to distinguish each situation.  In a scenario where the host state agrees to a United Nations involvement, any claim pertaining to Art. 2 (7) of the Charter of the United Nations would be irrelevant.  Furthermore, Art. 2 (7) of the Charter of the United Nations also provides that the principle of non-intervention is void in situations where the Security Council has determined that enforcement action under Chapter VII of the Charter of the United Nations is to take place.  Therefore, the legal basis can be said to lie in Chapter VII or in an agreement of the host country with the United Nations.

 

Case Study - UNTAC

 

In 1991, Cambodia was a country ravaged by 20 years of civil war.  This year however, marked a turning point.  After ten years of intense negotiations, the Paris Peace Agreements were concluded between four rivaling factions, through which the United Nations were entrusted with the civil administration of a Member State, thus exercising a heretofore unprecedented power.[8]  The Security Council supported the agreements in October 1991 and   requested the Secretary-General to prepare a detailed plan for the implementation of the agreement, and moreover authorized the Secretary-General to designate a special representative who would act on his behalf.[9]  In February 1992 it authorized the establishment of UNTAC for a period for 18 months, which at the time was the most extensive administrative operation tested the UN’s ability to exercise authority not just independently but in spite of intransigent local authorities.[10]

 

UNTAC had six goals.[11]  These objectives were to end the lingering civil war by demobilizing the various factions, to encourage and promote human rights by training lawyers, judges and others and raising human rights awareness, to hold free elections, which took place in May 1993, to repatriate more than 350,000 refugees which had taken flight along the Thai border, and to stabilize the Cambodian society.[12]  The structure of the mission was arranged under the Special Representative of the United Nations Secretary-General and worked alongside the local authorities.  Although it was agreed that the newly formed Supreme National Council (SNC) was the “unique legitimate body and source of authority in which the sovereignty, independence and unity of Cambodia” would be embodied, it delegated to UNTAC at the same time “all powers necessary to ensure the implementation of the Paris Agreements.”[13]  In essence, this empowered the Special Representative to overrule a decision of the SNC.   Furthermore, the Special Representative could also adopt decisions on questions for which the SNC could not find agreement.[14]  The actual mandate extended also into the areas of foreign affairs, national defense, finance, public security and information, in which UNTAC bore sole responsibility.  The far-reaching powers of the Special Representative included the power to remove local individuals from office and replace them with international officials.[15]

 

The mission contained six components.  Problems persisted throughout the mission, stemming not only from the fact that Cambodia’s infrastructure was devastated and lay in ruins after 20 years of civil war, but also from the fact that some components were hopelessly understaffed to adequately fulfill their assigned missions.[16] 

 

This was most clearly evidenced in the Civil Police Component, which was responsible for the supervision or control of local police activities and that the duties were carried out in impartial and effective manner.[17]  The problems which this component was confronted with consisted not only in the lack of adequate resources that were available to both local and international police and the late deployment of the force, but was exacerbated through the unwillingness of the Khmer Rouge faction to cooperate with the police component.[18] 

 

Problems such as slow deployment and inadequate staff resources and planning arose in the Civil Administration component.[19]  Misconceptions prior to the actual deployment led to an increased need for flexibility.[20]  This component was especially troubled by the lack of open communication lines between the international administrators and the four factions ruling the country.[21] 

 

The financial aspects of the mission were immense.  In a report to the General Assembly, the Secretary-General declared that the costs of the mission totaled about US$ 1.7 billion.[22]  This did not include another US$ 0.8 billion, which stemmed from voluntary contributions by Member States.[23] It is thus clear that such an operation, which is essentially responsible for partially rebuilding an entire or at least parts of a country requires the political, but more importantly, also the financial commitment of the international community as a whole.[24]

 

Case Study – UNMIK

 

The ongoing mission in Kosovo represents an example of administrative missions in which the United Nations took over all governmental functions and put in place an entirely new structure.[25]  In terms of its mandate, UNMIK is the most complex and extensive administrative mission to date.[26]  It differs considerably from previous missions in that it is responsible for the entire rebuilding of a province on the territory of the Federal Republic of Yugoslavia.  On 10 June 1999, the Security Council – following a series of resolutions[27] and military intervention by NATO[28] – authorized the Secretary-General to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo.”[29]

 

In the aftermath of this resolution and following a series of recommendations, the Secretary-General proposed the establishment of a UN-led international civil operation in Kosovo called UNMIK.[30]  In this report, the Secretary-General outlined the structure and the shape of the mission in its initial stages, which was to be composed of four components. Although each component was responsible for one aspect of the mission, they were to co-operate closely in order to fulfill the mandate given to them by the Security Council.  UNMIK at the outset included a civil administration component, an institution-building component, a humanitarian assistance component and a reconstruction component.  One of the aspects that differentiated UNMIK from all previous missions was the involvement of international organizations other than the United Nations, each working in a field in which that organization had gained special expertise.

 

The most urgent component to be established in 1999 dealt with humanitarian assistance.  With much of Kosovo’s infrastructure devastated and harsh winter conditions expected for the following winter, this component – under the aegis of the United Nations High Commissioner for Refugees – was responsible for providing shelter, food, water, and medical assistance.[31]  At the end of June 2000, UNHCR’s mission was phased out.[32] 

 

The second pillar was the civil administration component, which carried out its tasks under the guidance of the United Nations itself.[33]  Its mandate included the crucial task of rebuilding all forms of public administration, an efficient police force and an independent judiciary.[34]  While these tasks were carried mostly by international staff at the beginning of the mission, the authority has shifted to the Joint Interim Administrative Structure, which is intended to establish a working structure until elections are held.[35]  In theory, this structure provides for a system in which the involvement of the international community gradually decreases while self-government increases.

 

The task of democratization and institution building was assigned to the Organization for Security and Co-operation in Europe.  In part, this meant the re-establishment of an independent and functioning media environment, the training of local administrators, as well as the monitoring of elections.[36]

 

The final component was led by the European Union (EU) and was entrusted with reconstruction and economic development.  The original plan included a number of phases, dealing with the immediate humanitarian relief in the initial stage, while the EU would later be concerned with reconstruction and rehabilitation, and finally with the creation of a viable market economy and equitable social system.[37]

 

The Security Council, in its resolution 1244 (1999), has vested in the interim civil administration all legislative and executive powers, including the administration of the judiciary.[38]  This authority was reiterated in the first regulation that was passed by UNMIK shortly after its establishment and it becoming operational.[39]  In addition, the Special Representative has the power to “change, repeal or suspend existing laws to the extent necessary for the carrying out of his functions, or where existing laws are incompatible with the mandate, aims and purposes of the interim civil administration.”[40]  It is also in the discretion of the Special Representative to appoint or remove persons to or from governmental functions.[41]  The Special Representative has made considerable use of these powers, as evidenced by the large number of regulations that have been passed and the extent of the regulations themselves, permeating into the political, economic, financial and educational field.[42]

 

Questions of accountability must be raised with respect to the extent of the powers afforded to the Special Representative.  The combination of legislative and executive authority, coupled with the power to relieve judges from their duties, leads to the question of whether the Special Representative can be held accountable for any action taken.  One limitation is pronounced in the Secretary-General’s report to the Security Council, in which he pointed out that “[i]n assuming its responsibilities, UNMIK will be guided by internationally recognized standards of human rights as the basis for the exercise of its authority in Kosovo. UNMIK will embed a culture of human rights in all areas of activity, and will adopt human rights policies in respect of its administrative functions.”  A second limitation is contained in UNMIK/REG/2000/38 of 30 June 2000.  The regulation established an Ombudsperson, who according to section 3.1 “shall have 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.”  While these are commendable efforts, Stahn points out that the administration of Kosovo by UNMIK has lead to breaches of standards of fair trial as well as internationally recognized human rights standards, namely the International Covenant for Civil and Political Rights and the equally applicable European Convention of Human Rights. 

 

As similar problems have arisen with the mission conducted by the United Nations in East-Timor and as they are a matter of international concern, a number of issues need to be resolved for any future missions.[43]  While it is undoubtedly a formidable task to rebuild an entire governmental entity, one which provides for a host of problems, it is on the other hand questionable whether the fulfillment of such a task must necessarily include a violation of international norms.[44]  If an administrative mission is to fulfill its assigned duties, there is obviously a need to achieve these objectives in an expedient manner.[45]  The international community must be clear about the rules that are applicable and who retains control over the international governing authorities.  Taking into consideration that any such mission faces immense difficulties throughout its initial stages, it is clear that the rule of law is not a principle that can be adhered to its fullest extent.  However, since these missions are not designed to last for short periods of time and since one of their goals is to implement a sustainable political environment, these principles must be implemented to the fullest extent possible.