9789176789445

VOLUME 20

Rights to Territory: The Case of the United Nations

Göran Lysén is professor emeritus in public international law at the Faculty of Law, Uppsala University, Sweden.

GÖRAN LYSÉN

Disposition, administration and possession of territory have occurred throughout of the history of mankind, often resulting all together in conquest and annexation. In more modern times the peace treaties of Osnabrück and Münster in 1648 (Westphalian Peace), ending the war of the “Thirty Years” in Europe, brought a new structure and means in the relations between the European states. A new époque started by the Vienna Congress in 1815 following the wars of Napoleon and was also the beginning of the so-called European Concert conducted by the “Great Powers” in arranging territorial issues in Europe. This era was concluded by the Versailles Peace Treaty in 1919, which also brought a new player into the “territorial business”, namely the League of Nations/ Société des Nations, that is to say an international organization.

After the Second World War the United Nations (UN)/l’Organisation des Nations Unies (ONU) was created and given such a position that the powers once held by the “Great Powers” to a certain extent now have been channeled through the UN. Consequently, considering the main objective of the UN, that is to preserve international peace and security or to restore such conditions, the UN has engaged itself in almost countless missions to that end. In many cases the use of disposition, administration and possession of territory on the part of the UN has taken place, including state-building. This Study focuses on the actions by the UN concerning the three mentioned aspects, including a discussion on a number of legal issues pertaining to territory.

GÖRAN LYSÉN

Rights to Territory: The Case of the United Nations The matters of disposition, administration and possession

UPPSALA UNIVERSITY SWEDISH INSTITUTE OF INTERNATIONAL LAW STUDIES IN INTERNATIONAL LAW

U PPSALA U NIVERSITY S WEDISH I NSTITUTE OF I NTERNATIONAL L AW ISSN 0348-4718; 20 ISBN 978-91-7678-944-5

RIGHTS TO TERRITORY: THE CASE OF THE UNITED NATIONS The matters of disposition, administration and possession göran lysén

Contents

Contents Preface 9 Abbreviations 13 Cases 15 Permanent Court of International Justice (PCIJ) 15 International Court of Justice (ICJ) 15 International Tribunal of the Law of the Sea (ITLOS) 16 European Court of Justice (ECJ) 17 European Court of Human Rights (ECHR) 17 Arbitral Awards 17 Miscellaneous 17 Chapter One – Introduction to issues 19 1.1 General overview 19 1.2 The State concept 30 1.3 Protectorates and colonies 43 1.4 Belligerent occupation and annexation of territory 46 1.5 International administration of territory 72 1.5.1 Mandated territories 74 1.5.2 Administration in Europe by the League of Nations 75 1.5.3 Trusteeship territories and non-self-governing territories 77 1.5.4 UN peace-keeping and peace-making 82 1.6 The UN and rights to territory 83 1.7 Proposed Study 89 Chapter Two – The matter of the UN Charter; some points of relevance to territorial rights 91 2.1 General notes on the UN Charter 91 2.2 The UN as an international organization 93 2.3 The UN and its competences relative to territory 102 2.3.1 Competences on international peace and security 102 2.3.2 Specific competences on territory 109 2.4 Some concluding remarks 114

5

Contents Chapter Three – The matter of UN Disposition of Territory 116 3.1 The UN as midwife 117 3.1.1 Decolonization generally 117 3.1.2 Republic of Namibia/South West Africa 119 3.1.3 Two failed attempts 131 3.2 The UN preventing pregnancy 134 3.2.1 Southern Rhodesia 134 3.2.2 Bantu states or homeland states 135 3.2.3 Cyprus 136 3.3 Recognition of states and territorial acquisitions 137 3.4 Some concluding remarks 140 Chapter Four – The matter of UN Administration of Territory 144 4.1 Peace-keeping 147 4.1.1 The First United Nations Emergency Force in the Middle East (UNEF) and the Certain Expenses Case 147 4.1.2 UN Operation in the Congo (ONUC) 155 4.1.3 United Nations Temporary Executive Authority on West Irian (UNTEA) 156 4.1.4 United Nations Mission for the Referendum in Western Sahara (MINURSO) 157 4.1.5 United Nations Transitional Authority in Cambodia (UNTAC) 158 4.1.6 European Union and the administration of the city of Mostar (EUAM) 159 4.1.7 The Office of the High Representative in Bosnia and Herzegovina (OHR) 162 4.1.8 United Nations Transitional Administration for Eastern Slavonia (UNTAES) 163 4.2 Peace-making 164 4.2.1 Afghanistan 164 4.2.2 Somalia (UNOSOM I and II) 168 4.2.3 The Congo at present 169 4.3 State-building 171 4.3.1 Kosovo 171 4.3.2 East Timor/Democratic Republic of Timor-Leste (UNTAET) 181 4.4 International appointees as a special feature in peace-keeping/ state-building 184 4.5 Some cases beyond the UN 186 4.5.1 Taiwan 187 4.5.2 Palestine 188 4.5.3 Crimea 189 4.6 Some concluding remarks 192

6

Contents Chapter Five – The matter of UN Possession of Territory 196 5.1 On theory 196 5.2 From practice 201 5.3 Some concluding remarks 212 Chapter Six – Concluding remarks 216 Bibliography 221

7

VOLUME 20

Rights to Territory: The Case of the United Nations

Göran Lysén is professor emeritus in public international law at the Faculty of Law, Uppsala University, Sweden.

GÖRAN LYSÉN

Disposition, administration and possession of territory have occurred throughout of the history of mankind, often resulting all together in conquest and annexation. In more modern times the peace treaties of Osnabrück and Münster in 1648 (Westphalian Peace), ending the war of the “Thirty Years” in Europe, brought a new structure and means in the relations between the European states. A new époque started by the Vienna Congress in 1815 following the wars of Napoleon and was also the beginning of the so-called European Concert conducted by the “Great Powers” in arranging territorial issues in Europe. This era was concluded by the Versailles Peace Treaty in 1919, which also brought a new player into the “territorial business”, namely the League of Nations/ Société des Nations, that is to say an international organization.

After the Second World War the United Nations (UN)/l’Organisation des Nations Unies (ONU) was created and given such a position that the powers once held by the “Great Powers” to a certain extent now have been channeled through the UN. Consequently, considering the main objective of the UN, that is to preserve international peace and security or to restore such conditions, the UN has engaged itself in almost countless missions to that end. In many cases the use of disposition, administration and possession of territory on the part of the UN has taken place, including state-building. This Study focuses on the actions by the UN concerning the three mentioned aspects, including a discussion on a number of legal issues pertaining to territory.

GÖRAN LYSÉN

Rights to Territory: The Case of the United Nations The matters of disposition, administration and possession

UPPSALA UNIVERSITY SWEDISH INSTITUTE OF INTERNATIONAL LAW STUDIES IN INTERNATIONAL LAW

U PPSALA U NIVERSITY S WEDISH I NSTITUTE OF I NTERNATIONAL L AW ISSN 0348-4718; 20 ISBN 978-91-7678-944-5