Continuing the strands of discussion laid out in chapter 7, this chapter will focus on an international administration's capacity to engender normative change in order to affect the belief system upon which legitimacy is said to be founded. This is necessary as we have approached legitimacy in terms of political assessment but have neglected normative points of convergence on which it might be possible to appraise the legitimacy of a particular institution or action in terms of their ‘lawfulness’. For the legitimacy of UN imperium and its legal order another formal characteristic is important – the positivity of enacted law. As a criterion that contributes to the legitimation of governance, legal formalism is believed to offer precise and unambiguous rules prescribing obligatory conduct and thus a technical–rational process for decision-making. Following an understanding of the concept of legitimacy which we hold to be posited at the intersection of norms and their perception, the following exposé complements the ‘perspectival’ view with a more rule-based approach.

Having examined a governance sphere that plagued UNMIK throughout its institution-building mission, we drew attention to the key actor in an internationalised territory and disaggregated the influences that converge around this bicephalous body in its agency and organic functions. UNMIK, it can be said, faced simultaneously ‘outward’ to the international community as a territorial agent, and ‘inward’ to a domestic audience as an international organ to perform the fiduciary bond. In its quality as situated territorial agent, an international mission is constrained in its articulation by the operation of a fiduciary bond between it and the governees. In its corollary identity as subsidiary organ of the UN its mission was constrained in its ‘domestic’ strategic choices by international law and the politics of its mother organisation. We held both aspects important to capture the nature of an international administration.

Notwithstanding the deep modernist grounding of the concept of the civilising mission, the ‘standards before status’ approach, so closely fashioned after policies of conditionality and the idea of ‘earned sovereignty’, operated in naïve denial of the continued relevance of selfreliant statehood. Serbia's assertion of sovereign rights over the territory thus hovered perpetually in the background of Kosovo politics, menacing to some, beguiling to others.

Membership of any association presupposes a dividing line between insiders and outsiders, a rule laying down criteria of inclusion and exclusion. The twentieth century, however, witnessed the rise of unrecognised yet effective authorities stuck in transition somewhere between an international nullity and statehood, including individuals, peoples under colonial rule and de facto régimes. As highlighted at the 1994 Annual Meeting of the American Society of International Law, sub-state entities have an increasingly important role to play in international relations: ‘We have moved to a state at which, especially with respect to conflict resolution, non-state and sub-state actors are equal participants in the making of peace accords and in their implementation.’

‘Unbundling’ international legal personality has an undoubtedly wider significance for conceptualising membership in the international society. The propositions advanced so far fit well into an evolving legal framework that ascribes increasing capacities for non-state territorial actors to access international normative space. The imposition of international trusteeship in a post-colonial setting can therefore be presented in terms of inclusion in the sphere of international interest, rather than exclusion that thrives on notions of colonial inequality. Accordingly, we demonstrated that the imposition of what some commentators have termed ‘neo-trusteeship’ lends agency to an otherwise voiceless entity existing at the margins of an international legal nihil.

Introduction: the challenge to patrimonial conceptions of sovereignty

The Mandate system and the extent to which the notion of trust was operationalised for the governance of peripheral territories provides the framework – understood as a German Rahmenerzählung, in which one story is told within another – for this chapter which traces the curious events that led to the internationalisation of the territory once known as South-West Africa. It seeks to embed the narrative of Namibia's international administration in a ‘fiduciary frame’ that spanned the Mandate and Trusteeship systems.

The analysis of the Mandate system and its transition to the UN Trusteeship system is a particularly rewarding task. The fascination stems from insights gained in appreciating the extent to which the normative repository of international law was accessed – and, while doing so, further developed and expanded – to enable a more effective response to anomalous situations.

Referring to processes and methods of transferring effective control over territory, this first chapter concentrates on territories under international administration as experimental models of ‘restricted sovereignty’. One of its major thrusts consists in arguing that the demands of political reality have forced sovereign states for centuries to consent to agreements by which they relinquished a portion of their sovereignty – of the suprema potestas – in favour of another sovereign entity. Likewise, as James Crawford pointed out, the establishment of autonomous entities under a form of international protection, supervision, or guarantees has been a ‘persistent form of organisation of territories disputed between States on strategic or ethnic or other grounds’. We shall pursue these two arguments by interrogating an analogy, drawn by Grotius, Pufendorf and Selden, between the Roman private law concept of dominium and sovereignty over territory. While the analogy allows us to grasp the key conception of the institution of ‘legal sovereignty’, it also permits us to examine the various practices which were instrumental in devising exceptions to the application of dominium over territory. We will hence begin by adopting an in rem perspective in order to capture international legal solutions that were applied to situations in which title to territory had been divorced from imperium, or what German constitutional doctrine refers to as Gebietshoheit.

The study The Legal Status of Territories Subject to Administration by International Organisations is the result of three years of research at the European University Institute in Florence, including one semester which I spent at Madison Law School. The idea of writing this book was conceived in Prishtina, Kosovo, in the winter of 2001. My daily professional exposure led me to apply to the EUI, thus responding to an urge to reflect more profoundly upon some of the legal implications of ‘political trusteeship’, and particularly on the assumption of temporary imperium over territory by the United Nations. In the hectic environment of the Office of the Chef de Cabinet of the resident OSCE Mission, I came to realise that a background theory for institution-building had to be found somewhere out there. Only a strong conceptual grounding, I believed, could provide a recipe for good practice, whether in Kosovo or in Afghanistan.

Ensuing conversations with friends and colleagues gravitated around some of the concepts that emerge and recur throughout this book: standards, status, sovereignty, representation of territory, self-determination, internationalism, rule of law, legitimacy, fiduciary obligation, sacred trust, accountability, legal personality and so forth.

This chapter is divided into two parts. The first investigates the status of an internationalised territory in light of earlier conclusions. It places UNMIK's administration of Kosovo within the normative framework that emerged from the dynamic shift from horizontal to vertical assumption of effective control, as presented in chapter 1. Further, it contextualises the specific findings by reviewing major constitutional and policy developments in Kosovo over recent years. The second part aims to crystallise the findings of chapters 3 and 4 regarding the dual functions of an international administration and the partial personality of the territory itself, applying them to the case of Kosovo. We conclude that an international organ may indeed be torn between performing the ‘interests’ of a territory and pursuing the collective interest of the international community.

Introduction: the UN imperium over the territory

A preliminary comment regarding the particularities of Kosovo's interim international administration is in order. Since June 1999, the status of Kosovo in public international law has been the focus of heated debate among legal scholars. There has been an equally ferocious exchange of letters between UNMIK (as well as its component organisations) and the authorities of the FRY and the Republic of Serbia, who have on occasion taken issue with an alleged encroachment of the right to exercise effective control (UNMIK) or the claim to titular sovereignty (FRY).

The previous chapters of this study accounted for the phenomenon of ‘suspended sovereignty’, first, by supplying an in rem frame to explain the divorce between legal title to territory and jurisdiction over it. Chapter 2 broadened the analytical framework by accounting for the suspension of the application of general rules of international law and by introducing the novel rules that regulated the operation of the Mandate and Trusteeship systems. It applied McNair's and Berman's conception of the transitionality of legal norms, in which rules were grounded in a new ‘essential basis’. This chapter begins with a re-appraisal of the concept of collective entitlement to realise what has earlier been described as the ‘permanent promise’ of fiduciary administration – that of internal and possibly external self-determination. Administration by trust will thus be presented as a reaction to a general challenge to international law's normative foundation. In more metaphorical terms, the content of this promise points to the eventual return of ‘the sovereign’ disguised in garments spun by the machinery of self-determination. Her return in the Gestalt of the ‘peoples’ – an international actor newly constituted by the UN Charter – not only ends the hiatus created by the de-sovereignising principle of trust. As a dynamic principle designed to end colonialism, it also had a profoundly threatening impact on the configuration of nation states as such – ill-prepared, as they remain, for an increasingly empowered tribalism that relies on the second, stable promise of territorial sovereignty.

At the end of his study on legitimacy, Rodney Barker notes that unless an author is ‘suddenly to do in five pages what he has failed to do in two hundred …, the conclusion must be … a necessarily didactic summary and an allusive indication of things undone’. Following these recommendations, this appraisal attempts to bring together the strands of a long argument by recalling the main themes. At the same time, it offers some concluding thoughts which transcend the preceding discussion.

The research puzzle required the application of four conceptual frames. In chapter 1, the study viewed the methodology of internationalisation as the result of a transfer of imperium from a sovereign power to a protecting entity, leaving the former with a claim as a ‘bare title’. In the positivist framework, suspending sovereignty represents a legal process through which the conceptual hallmarks of dominium and imperium are divorced from each other. We discussed the processes and methods of transferring effective control and focused on territories under international administration as experimental models of restricted sovereignty. International legal sovereignty has increasingly been suspended by the SC by its reliance upon Chapter VII. Both UNMIK and UNTAET were created on this basis, and in both cases an international territorial administration assumed exclusive administrative authority over the territories placed under its effective control and supervision. Moreover, we established that the special normative quality of Resolution 1244 lies in its ‘vertical’ imposition of the transfer of effective control.

The long-winded attempts to find a multilateral solution for Kosovo's microcosm demonstrated that an impasse on the international negotiation plane regularly led to an institutional deadlock and the slowing down of reforms and standards implementation at the local level. The task of an international administration in managing an open-ended situation became more complex; its legitimacy in the eyes of the people it administers waned accordingly. Given the scope of authority the UN has taken upon itself to exercise in a territorial context, it is, however, surprising that the issue of the ‘legitimacy’ of the internationalisation of state structures through international post-conflict governance has so far inspired little debate beyond the old peacekeeping discourse. This chapter and chapter 8 hence turn ‘inwards’ in an attempt to define more succinctly the properties of a temporary coercive order established by an international territorial administration. Both are generally concerned with phenomena accompanying an international legal and political authority as it ‘meets’, and interlaces with, a municipal legal and political order.

Upon consideration, the metaphor of ‘encounter’ is not at all ill conceived.