Academic journal article Global Governance

Crossing the Boundary from the International to the Domestic Legal Realm: UNMIK Lawmaking and Property Rights in Kosovo

Academic journal article Global Governance

Crossing the Boundary from the International to the Domestic Legal Realm: UNMIK Lawmaking and Property Rights in Kosovo

Article excerpt

Considering that the resolution of property issues is often pivotal for the success of a peacebuilding process in a postconflict situation, it is surprising that the United Nations Interim Administration Mission in Kosovo (UNMIK) is so far the only UN peace operation that took on the responsibility of regulating them in a comprehensive manner. The comparable governance missions in Cambodia, Eastern Slavonia, and East Timor yielded to the democratically legitimated local authorities in matters relating to property although they were facing a similar property crisis during their administration. The only other international administration that dealt with property issues on a larger scale was the Office of the High Representative under the Dayton Peace Agreement in Bosnia and Herzegovina, which, however--unlike UNMIK--does not possess full legislative and executive powers. (1)

In terms of substantive property-related lawmaking, UNMIK serves as an important precedent for future international territorial administrations that might be established in postconflict situations defined by ethnic conflict and discrimination, a mass refugee crisis, large-scale housing destruction, and an underdeveloped court and property registration system. (2) Of particular interest are UNMIK's regulatory efforts concerning property issues from the date the mission was established, 10 June 1999 to 10 December 2001, the date of the inauguration of Kosovo's first assembly as the cornerstone for the establishment of the provisional institutions of self-government foreseen by Security Council Resolution 1244.

These efforts provide insight into what difficulties an international peace operation with full government functions faces when confronting a complex legal area that not only challenges the mission's enforcement powers, but also questions its legislative capability to ensure compatibility of its regulations with the domestic legal system. UNMIK was in principle required to act (and to legislate) in accordance with the applicable domestic laws unless they conflicted with internationally recognized human rights standards or UNMIK regulations issued in the fulfillment of its mandate. (3) Yet this requirement caused serious difficulties for the international mission staff who lacked, for the most part, sufficient knowledge of the local languages, structures, and legal systems. (4)

By simultaneously performing international peace maintenance and running a territorial administration accountable to the local population, (5) UNMIK is characterized by a functional duality (6) that combines elements of global and domestic governance. (7) In fact, the mission has come close to the old idealist notion of a world government in the sense that a presumably legitimate international organ can perform government functions that have a direct impact on the local population and normally fall within the domaine reserve of a sovereign state. In this context, UNMIK's property-related lawmaking is of particular interest, since property issues may be said to lie at the very heart of a domestic legal system.

UNMIK, headed by a special representative of the secretary-general (SRSG), initially comprised the following four pillars: Pillar I, the UN High Commissioner for Refugees (UNHCR), for humanitarian affairs; Pillar II, the UN, for civil administration; Pillar III, the Organization for Security and Cooperation in Europe (OSCE), for institution building; and Pillar IV, the European Union (EU), for reconstruction and development. (8) It also set up a Joint Interim Administrative Structure (JIAS) to integrate the major local political forces in the decisionmaking process. The present case study illustrates how the transitional administration dealt with the various responsibilities of a multifunctional peace operation, entailing not only traditional peacekeeping activities, but also elements of peace enforcement and peacebuilding. It provides insight into how different legislative approaches were used and how the degree of local involvement varied depending on the challenge and interest behind each individual regulatory effort. …

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