Chapter 5. Th e Legal Status of Territories and States under
B. Sovereignty and the Suspension or Limitation of Exclusive State
Th e relationship between sovereignty and the exercise of administrative func- tions by international actors has frequently been misconceived in recent cases.
Sovereignty is as such closely related to international legal personality, and can be described as the right to exercise, to the exclusion of any other state, the functions of a state.275 Sovereignty is thus an intrinsic aspect of a state, distinct
273 Cf. Ruff ert, supra note 200 and Stahn, supra note 267.
274 See International Court of Justice, ‘Case concerning East Timor’ (Portugal v. Australia), Judg- ment, 30 June 1995, 1995 ICJ Reports 90, para. 37.
275 Cf. ‘Island of Palmas Case’ (Netherlands v. U.S.), Arbitral Award, 4 April 1928, 22 American Journal of International Law 967 (1928), p. 875.
from the competences of the state which are both territorial and personal and distinct from its administration.276
Certain situations can nevertheless moderate a state’s exclusive competence, one of them being the transfer of administrative powers. In recent decades several institutions were formed which directly limited a state’s exclusive competences, such as foreign military occupation, protectorates and the trusteeship and man- date systems. Th ese structures implied the right of another entity, a State or an international organisation, to exercise certain competences. However, none of them implied a sovereign right to the territory in question.277 In the similar cases of UN-led international administrations, the temporary suspension of the exclusive state competences in favour of the UN does not therefore imply the transfer of sovereignty over the territory to the UN. Th e international character of these territories does not question the title to and ownership of the terri- tory, nor does it question sovereignty, despite the fact that the exercise of the administrative authority does not coincide with the ownership of or sovereignty over the territory.278 As a consequence, the transfer of administration or state competences to an international organisation or the presence of foreign actors in the administration does not imply the transfer of the state’s sovereignty to the international organisation.279 Th e state itself, when the entire state or a part of its territory is under international administration, does not disappear, nor does it transfer elsewhere its inherent right to those competences.
It has also been argued that the sovereignty of states or territories under inter- national administration would be suspended in favour of the administrator or that the international organisation would exercise sovereignty in place of the state.280 However, this seems to result from an erroneous interpretation of the concept of sovereignty. On the contrary, the transmission by a state of its administer- ing power and competences to another entity can be seen as the exercise of the rights of a sovereign state. Th is can be either by consenting to the deployment of an international administration, or by granting the power to the UN Security Council to establish such mission by signing the UN Charter. It cannot therefore be assumed that sovereignty over the territory under international administration is temporarily vested in or exercised by the UN. As Rousseau stated with regard
276 Brownlie, supra note 200, p. 107 and Crawford, supra note 232, p. 33.
277 Dupuy, supra note 217, p. 65. See also Knoll, B., Th e Legal Status of Territories Subject to Administration by International Organisation (Cambridge: Cambridge University Press, 2008), p. 41 et s.
278 Zimmermann and Stahn, supra note 236, p. 429.
279 See however, Chopra, supra note 10, arguing that sovereignty has passed to the UN.
280 See for instance. Yannis, A., ‘Th e Concept of Suspended Sovereignty in International Law and its Implications in International Politics’, 13 European Journal of International Law 1037 (2002), pp. 1037–1052.
to former cases in which an international organisation exercised administrative functions, “il n’apparaợt pas, comme certains auteurs l’ont pensộ [. . .] que les régimes d’internationalisation constituent une catégorie juridique impliquant l’exercice eff ectif de la souveraineté [. . .] par la communauté internationale organisée.”281 In addition, from the point of view of the UN as an international organisation, it is obvious that when an international organisation is entitled to function as the administering authority over a state or part of a state, this title is not the equivalent of territorial sovereignty. Th e territorial delimitation of these competences does not imply that the international organisation has sovereignty over that territory.282
Th e case of Kosovo is of course a unique situation, but even in this case it cannot be claimed that UNMIK has sovereignty over this province, which remains an integral part of Serbia.283 Th is is implicitly confi rmed by the Security Council as it authorises “an agreed number of Yugoslav and Serb military and police personnel [. . .] to return to Kosovo to perform the functions in accordance with annex 2”.284 In addition to the abovementioned principles and reasoning, and although UNMIK de facto exercises all competences normally attributed to the sovereign, Resolution 1244 of the Security Council strengthens the idea that UNMIK merely temporarily exercised the competences of the sovereign.285 Indeed, the UN can function as the administering authority of a territory only when the State concerned has no or only partial exclusive competence. We argue that for the duration of the international administration of the territory the state’s sovereignty persists, but its exclusive competences are partially or totally suspended and exercised by the foreign actors.
As far as East Timor is concerned, it remained a non-self-governing terri- tory throughout UNTAET’s administration towards independence. It may be deduced from the General Assembly’s Friendly Relations Declaration286 that a non-self-governing territory enjoys separate legal status in international law with a
281 Rousseau, supra note 269, p. 413.
282 Nguyen Quoc Dinh, Dallier, P. and Pellet, A., Droit International Public (Paris: L.G.D.J., 1999), no 393.
283 See also in that sense: Zimmermann and Stahn, supra note 236, p. 429. Contra: Ringelheim, J., ‘Th e legal status of Kosovo’, in European University Institute (ed.), Kosovo 1999–2000, Th e Intractable Peace (Florence: European University Institute, 2001), pp. 7 et s. and Brand, M.G., ‘Institution-Building and Human Rights Protection in Kosovo in the Light of UNMIK Legislation’, 70 Nordic Journal of International Law 460 (2001), p. 463.
284 SC Res. 1244, UN Doc. S/RES/1244 (1999), para. 4.
285 See for a discussion: Zimmermann and Stahn, supra note 236, p. 429.
286 G.A. Res. 2625(XXV), ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations’, UN Doc. A/5217 (24 October 1970).
certain legal personality.287 However, the issue of East Timor’s sovereignty, before achieving independence, remains uncertain. According to the principles appli- cable to non-self-governing territories,288 one could assume that Portugal retained formal sovereignty over East Timor. Even after Indonesia’s military intervention the Security Council continued to regard Portugal as the Administering Power under Chapter XI of the UN Charter,289 although it subsequently asked UN Member States to respect East Timor’s territorial integrity.290 In addition, some have questioned the very notion of the sovereignty of the administering powers in non-self-governing territories.291
With regard to Iraq, the concept of sovereignty has frequently been used and misused by the CPA and the Security Council. In one of its resolutions, the Security Council “reaffi rm(ed) the independence, sovereignty, unity, and territo- rial integrity of Iraq”, although it stated that at the end of occupation “Iraq will reassert its full sovereignty”.292 Sovereignty as such was never transferred to the CPA, as the CPA was merely the administering authority in Iraq.293 Although a comparison with the occupation of Germany by the four major Allied Powers after the Second World War is not totally accurate, it is clear that in that case the exercise of state functions by the Allied powers did not equally amount to a transfer of the sovereignty to the allied powers. As Brownlie puts it, “the impor- tant features of ‘sovereignty’ in such cases are the continued existence of a legal personality and the attribution of territory to that legal person and not to the holders for the time being”.294 In the case of Iraq, a reference to the transfer of authority instead of sovereignty would therefore have been more appropriate.295