Making law without a democratic legislative body

As a result of the continuing resistance of domestic actors, in particular judges and prosecutors, to applying the existing FRY/Serb laws, in mid-August 1999, the Joint Advisory Council on Legislative Matters (JACLM), comprising both international and local actors, was established under the auspice of the SRSG, Bernard Kouchner.[1] The role of JACLM was to review the existing law, to propose and provide assistance in drafting legislation for the interim administration in the areas of criminal, civil, administrative, and commercial and property law,

Making laws for others 33 and to advise the SRSG on legal matters.[2] It was divided into several working groups, each tasked with a specific responsibility.[3]

The creation of this ad hoc legislative body was welcomed by both international and local actors, and was seen as a tool which would help finally to put to an end the long debate over the applicability of FRY laws.[4] Nevertheless, despite expectations the JACLM was not able to stand on its own feet until the beginning of December 1999.[2]

On 12 December 1999, the SRSG adopted Regulation 1999/24, which modified the previous Regulation 1999/1 applying contemporary FRY/Serbian law. The Regulation determined that the applicable law should consist of the regulations promulgated by the SRSG, including subsidiary instruments, and the law which was in force in Kosovo on 22 March 1989 to the extent that it did not contradict internationally recognised human rights standards.[6] However, several months later, additional clarifications were provided by Regulation 2000/59, which identified the sources of law applicable in Kosovo: UNMIK Regulations, the law which was in force in Kosovo on 22 March 1989, and the law that applied in Kosovo between 22 March 1989 and 12 December 1999 to the extent that it was not discriminatory and not in contradiction with international human rights standards.[7] Though this regulation expressly states the supremacy of “SRSG Regulations” over 1989 law, unfortunately the hierarchy between other sources of law remained unclear.[8]

The manner in which the law was determined raised further issues, as it turned out to be rather difficult to apply in practice. Regulation 2000/59 itself failed to provide guidance on how to reconcile FRY/Serbian law with international human rights standards.[9] It drew no clear line as to which laws or parts of lawswere inconsistent with internationally recognised standards, which created confusion both for those who had designed the formula and for those who had to apply this formula in practice.[10]

Under the regulations mentioned earlier, domestic law would only continue to apply in Kosovo insofar as it did not conflict with human rights standards. In this regard the following international instruments were explicitly listed:

  • 1 The Universal Declaration of Human Rights,
  • 2 The European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto,
  • 3 The International Covenant on Civil and Political Rights,
  • 4 The International Covenant on Economic, Social and Cultural Rights,
  • 5 The Convention on the Elimination of All Forms of Racial Discrimination,
  • 6 The Convention on the Elimination of All Forms of Discrimination against Women,
  • 7 The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, and
  • 8 The International Convention on the Rights of the Child.[11]

Though drafted in ambiguous language, these regulations impose an obligation upon UNMIK to integrate the stated principles (even in the absence of formal adherence to the treaties) into domestic legislation and ensure its harmonisation with international human rights standards. Moreover, they impose an obligation upon UNMIK officials to exercise their functions in accordance with these principles: “In exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognised human rights standards”.[3]

However, whether UNMIK Regulations constitute a legal source has been a subject of debate among legal scholars. In this regard, Alvarez considers that “[n]o one knows for sure whether the matter is a question of a legal duty or an ex gratia assumption of responsibility, or whether it applies to all of international organisations and with respect to all its operations, or even if all of international human rights law does apply to the UN, how it does so”.[13] This assertion has

Making laws for others 35 been questioned by Cameron, who considers that Alvarez failed to notice that there is no equality among regulations, because some hold more weight than others. For instance, the Regulation on Immunity and Privileges of UNMIK and KFOR (UNMIK Regulation 2000/47) is widely viewed as binding, whereas the rest of the Regulations did not produce such an effect.[14] Thus in her view this assertion will remain open to discussion.

Yet despite the ambiguous language, the wording of the Regulations suggests that UNMIK was given the role of “a surrogate state and, as such, was institutionally bound not only to observe international human rights standards, but to implement them as well. These obligations, therefore, were not attached only to public officials in their official capacities, but to the institutions on behalf of which they exercised their public functions”.[15]

  • [1] Similarly in East Timor, a legislative body named the National Consultative Council (NCC) was assigned the task of providing advice and policy recommendations to the SRSG. By contrast with JACLM, which was an ad hoc body, the NCC was established by law, but did not possess so much power to amend draft regulations or to propose any regulation on its own and was often ignored by UNTAET. The NCC was established by UNTAET Regulation 1999/2. See Daniel Fitzpatrick, Developing Legal System in East Timor; Some Issues of UN Mandate and Capacity, Austrian Review of International and European Law, Vol. 5, 2000, p. 12.
  • [2] See Reka, supra n. 4, p. 190.
  • [3] Ibid.
  • [4] “Dr Kouchner said the main task of the Advisory Group would be to review existing legislation and to draft new laws, which would eliminate all elements of discrimination; that is, the notion of apartheid. An example of this was the present “Law on Changes and Supplements on the Limitation of Real Estate Transactions”, which prohibited Albanians from property transactions”. UNMIK Press Release, 16 August, 1999.
  • [5] See Reka, supra n. 4, p. 190.
  • [6] See UNMIK Regulation 1999/24, section 1.1. The same legislative strategy and practice were utilised by UNTAET in East Timor. Like in Kosovo, it was decided to apply the legislation which was in force prior to the adoption of UNSC Resolution 1272, in this case Indonesian laws applicable in East Timor on 25 October 1999. However, as in Kosovo such laws required consistency with international human rights standards. This decision was regarded as a pragmatic choice since all East Timorese lawyers were familiar with the Indonesian laws. See para. 3 of UNTAET Regulation 1/1999; Fitzpatrick, supra n. 15, p. 12.
  • [7] See UNMIK Regulation 2000/59, section 1.1.
  • [8] See Carsten Stahn, The United Nations Transitional Administration in Kosovo and East Timor: A First Analyses, Max Planck Yearbook of United Nations Law, Vol. 5, 2001, Kluwer Law International, p. 156.
  • [9] Scott N. Carlson, Wendy S. Betts, and Gregory Gisvold, The Post-Conflict Traditional Administration of Kosovo and Lessons Learned in Efforts to Establish Judiciary and Rule of Law, Michigan Journal of International Law, Vol. 22, No. 33, Spring 2001, p. 374.
  • [10] UNMIK Regulation 2000/59 says that the laws in force after 22 March 1989 are applicable if they cover “new grounds” and are not of a discriminatory nature; however, it raises the question what are these “new grounds”? See OSCE Report, Property Rights in Kosovo, January 2002.
  • [11] See, UNMIK Regulations, 1999/1, 1999/24 and 2000/59.
  • [12] Ibid.
  • [13] Jose E. Alvarez, International Organisations as Law-Makers, Oxford University Press, 2005, p. 178. Alvarez notes that it was not the first time that the Security Council had used its Chapter VII powers to increase awareness of human rights protection. For example, in the case of Haiti UNSC Resolution 940 enshrined an obligation to treat human rights as “an integral part of the very definition of international peace and security”. Similarly, UNSC Resolution 688 required respect for human rights in Iraq relating to the Kurdish and Shiite minority oppression.
  • [14] See Lindsay Cameron, Human Rights Accountability of International Civil Administrations to the People Subject to Administration, Presentation for the International Conference: Accountability for Human Rights Violations by International Organizations, Brussels, 17 March 2007, Human Rights International Discourse, Vol. 2, Conference Reader, p. 9.
  • [15] See Kosovo Ombudsperson Special Report Nr. 2, issued on certain aspects of UNMIK Regulation 2000/5 amending UNMIK Regulation 1999/24 on the Law applicable in Kosovo, para. 11, 30 May 2001.
 
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