UN Territorial Administration and Human Rights: The Mission in Kosovo
Addressing some critical conceptual issuesA note on methodologyThe research question: was UNMIK, as a surrogate state administration, capable of protecting the human rights of the people it governed?The structureThe role of UNMIK in a post-war KosovoThe UNMIK’s mandate in Kosovo (UNSC Resolution 1244): general overviewThe legal implications of UNSC Resolution 1244Designing the provisional institutions of Kosovo: the governance bundles under UNMIKJudicial structuresQuasi-judicial structures of UNMIKTermination of UNMIK’s mandate: nexus with successor mission EULEXConclusionMaking laws for others: managing complexityIntroductionReconstructing the legal system: “the initial law-making process”Making law without a democratic legislative bodyThe UNMIK lawsThe application of the initial legal formula in practiceThe scope of the legislative power of UNMIKWhat has gone wrong? Shortcomings in UNMIK’s lawConclusionThe paradigm of an independent judicial system under international administrationIntroductionThe notion of the independence and impartiality of the judiciary in legal doctrineThe pre-war judicial legacy and its impact on post-war KosovoWhether and to what extent can the UNMIK judiciary be viewed as independent and impartialDivision of powers – a basic rule for the independence of the judiciaryThe requirement that a court/tribunal be established by lawThe appointment of judges and their independenceBudget, salaries, and court managementThe accountability of UNMIK’s judiciary and its actorsConclusionThe paradox of UNMIK’s justice system: measuring the performance of UNMIK’s courts and its quasi-judicial bodiesIntroductionExecutive interference in the course of justiceShortcomings surrounding the efficiency of the justice systemRemoval of the courts’ jurisdiction for dealing with property rightsBackground informationProperty restitution under the umbrella of UNMIKThe administration and adjudication of claims before the HPD/HPCCProcedural deficienciesConclusionThe extent of UNMIK’s authority on the groundIntroductionUNMIK’s obligation to secure human rights protection to everyone within its jurisdictionFailure to protect the right to lifeFailure to restore the property of displaced personsFailure to protect the right to healthCompeting jurisdictions: the spectrum of de jure vs. de facto controlThe effect of the dual legal system and the parallel court structuresConclusionBetween immunity and accountability: the immunity and privileges of UNMIKIntroductionBackground informationThe immunity of the international organisationsIs a waiver of immunity an option?To what extent should an interim administration be controlled? Accountability mechanisms established by UNMIKThe Ombudsperson InstitutionThe Human Rights Advisory PanelConclusionHolding UNMIK accountable for human rights violationsIntroductionIs human rights law binding on international territorial administration?Does innovation in recent ITA practice affect existing human rights law?To what extent is customary international law binding on international territorial administrations?The European Court of Human Rights: a source of hope or toothless human rights tiger?The notion of delegation of powersEffective/overall test vs. ultimate authority and control testWhat can we learn from the Behrami and Saramati decision?ConclusionThe adequacy of UNMIK’s legislationThe adequacy of the judicial mechanismsHuman rights mechanismsLong-lasting mandate: ending the Security Council resolutionsThe following can be suggestedBibliography
