Conceptualizing the Administration of Territory by International Actors

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Conceptualizing the Administration of Territory by International Actors 

Lindsey Cameron 

∗ 

∗∗ 

∗ 

 and Rebecca Everly 

∗∗ 

Gregory H. Fox. Humanitarian Occupation. New York: Cambridge Unversity Press, 2008. Pp. 

336. $47.99. ISBN: 9780521671897. 

  

Hans Fabian Kiderlen. Von Triest nach Osttimor. Der völkerrechtliche Rahmen für die 

Verwaltung von Krisengebieten durch die Vereinten Nationen. Berlin, Heidelberg, New York: 

Springer, 2008. Pp. 528. EUR94.95. 9783540775249. 

  

Bernhard Knoll. The Legal Status of Territories Subject to Administration by International 

Organisations. New York: Cambridge University Press, 2008. Pp. 554. $138.00. ISBN: 

9780521885836. 

  

Carsten Stahn. The Law and Practice of International Territorial Administration. Versailles to 

Iraq and Beyond. Cambridge: Cambridge University Press, 2008. Pp. 866. £99.00. ISBN:  

9780521878005. 

  

Ralph Wilde. International Territorial Administration. How Trusteeship and the Civilizing 

Mission Never Went Away. Oxford: Oxford University Press, 2008. Pp. 640. £64.95. ISBN: 

9780199274321 

Abstract 

This article reviews five major recent works on the phenomenon of the administration of territory 

by international actors. Covering both legal and policy elements of the works, it delves into how 

the scholars treat the purported legitimacy deficit often associated with this activity. It then 

addresses the authors’ approaches to the key international law questions, including the legal 

status of internationally administered territories, the legal basis for administration, and the legal 

                                                 

∗ 

 Research assistant and PhD candidate, University of Geneva.   

∗∗ 

 PhD (Cantab), currently a Visiting Scholar at Jawaharlal Nehru University, New Delhi, India.  

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framework governing administrators’ acts, and, finally, the accountability of the international 

actors involved. 

The post-Cold War upsurge of cases involving the administration of territory by international 

actors, which has included high profile UN interim administration missions in Kosovo and East 

Timor, is frequently associated with ad hocism. International administrators themselves have 

been accused of acting in a responsive, piecemeal fashion, and critical analysis of this 

phenomenon has often tended to focus on strategic/tactical issues rather than to provide a 

reflective examination of the nature of international administration itself.  

To be sure, a glance at the growing literature on international administration reveals both 

praise and criticism which speaks to the broader implications of having international actors 

perform functions which normally fall within the purview of domestic governmental authorities. 

For instance, international administration has been alternatively presented as a humanitarian 

response to the problem of ‘failed states’ and colonialism redux performed by unaccountable 

international actors. Yet, what is often missing is a rigorous analysis of international 

administration and its links to other forms of governance by outsiders and the legal and 

normative issues surrounding its use. This is problematic, given that the use of international 

actors to administer territory raises questions of enormous relevance for international relations 

and international law. For example, what are the implications for the notion of state sovereignty? 

How can governance by unelected international officials be reconciled with the view, however 

controversial, that there is an evolving right to democratic governance? And, even if one accepts 

that governance of this sort may be legitimate in principle, how does one decide when to make 

use of it and how it should be structured and regulated?  

Against this background, recent publications by Ralph Wilde, Bernhard Knoll, Carsten 

Stahn, Hans Fabian Kiderlen, and Gregory Fox are welcome, as each seeks to wrestle with 

fundamental, first order questions of this sort. Overall, these works are of a very high quality, 

with much to offer both scholars and practitioners. Wilde’s International Territorial 

Administration: How Trusteeship and the Civilizing Mission Never Went Away1 builds on the 

                                                 

1 

 R. Wilde, International Territorial Administration:  How Trusteeship and the Civilizing Mission Never Went Away 

(2008). 

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author’s earlier, path-breaking work2 through a searching analysis of the involvement of 

international actors in the administration of territory, along with the purposes of such 

involvement. Wilde also examines the relationship between recent cases of international 

involvement in territorial administration and activities such as colonialism, mandate and trust 

arrangements, and occupation, thus raising questions about the legitimacy of such cases.  

Knoll’s Legal Status of Territories Subject to Administration by International 

Organizations, which is a mix of the theoretical and empirical and draws in part on the author’s 

experience in the Office of the Chef de Cabinet of the OSCE mission resident in Kosovo, is similarly 

concerned with conceptualizing international administration and assessing its links to other cases 

of territorial administration, including under the mandate/trusteeship systems.3 Knoll pays 

significant attention to the relationship between international administration and the international 

legal personality of administered territories. The book is demanding, but ultimately rewarding, 

due particularly to Knoll’s willingness to put forward bold, often polemical, legal arguments. The 

passages of the book which seek to throw light on the nature of international administration 

through an exploration of politico-legal issues which have arisen in Kosovo are very rich; the 

fact that they tend to refer to documents which are little known and often not widely available is 

particularly useful for scholars of international administration. At the same time, the very 

existence of difficulties regarding access to documents produced by international administrations 

should trigger more discussion on the transparency deficit within these entities. 

At over 700 pages (excluding bibliography) and with a correspondingly broad scope, 

Stahn’s The Law and Practice of International Territorial Administration is likely to become a 

standard reference work on the subject.4 It details the historical evolution of international 

involvement in territorial administration and the latter’s multi-faceted character, examining the 

first experiments with internationalization in the nineteenth century; the mandate and trusteeship 

systems, and occupation. It also considers institutions such as protectorates, protected states, and 

condominiums. Stahn uses this background as a springboard for a wider discussion of the legal 

and normative issues arising in connection with territorial administration by international actors. 

The wide scope of Stahn’s work necessarily means that he cannot treat all of the issues that he 

                                                 

2 

 See, e.g., Wilde, ‘From Danzig to East Timor and Beyond:  The Role of International Territorial Administration’, 

95 AJIL (2001) 583. 

3 

 B. Knoll, The Legal Status of Territories Subject to Administration by International Organisations (2008). 

4 

 C. Stahn, The Law and Practice of International Territorial Administration:  Versailles to Iraq and Beyond (2008), 

at 2–3. 

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raises in great detail, but his arguments are clear and persuasive. Stahn also provides various 

interesting recommendations for improving the quality of international administration.   

Kiderlen’s Von Triest nach Osttimor: Der völkerrechtliche Rahmen für die Verwaltung 

von Krisengebieten durch die Vereinten Nationen5 focuses exclusively on the administration of 

territory by the UN, and his aim is to sketch the international legal framework applying to UN 

administration of territories in crisis. As such, Kiderlen is much less concerned with broader 

questions of legitimacy than with the legal nitty gritty. The bulk of the work considers the legal 

basis for UN administration of territory and the legal limits upon it. As Kiderlen puts it, he 

explores the ‘whether’ and the ‘how’ of territorial administration – but in terms of the legal issues 

guiding the decision-making, not the policy questions. Overall, his approach is much more 

continental than those of the other works under review, as he structures his work round a 

systematic interpretation of the UN Charter and the position of the UN in international law.  

Finally, Fox explores what he refers to as ‘humanitarian occupation’ in his book of the 

same name. 6  He examines post-Cold War international administrations in Bosnia and 

Herzegovina (BiH), Kosovo, East Timor, and Eastern Slavonia (Croatia), arguing that these 

represent a commitment on the part of the international community both to the preservation of 

existing states and to a model of the state rooted in liberal democratic norms. He contends that 

commonly-employed legal justifications for such administrations are inadequate, and suggests a 

possible alternative foundation for humanitarian occupation which takes into account that the 

latter is undertaken in furtherance of the collective goals of the international community. 

1,  Definitions 

The initial challenge in assessing international administration relates to definition and taxonomy.  

Knoll explores the phenomenon of ‘territories subject to administration by international 

organisations’ and notes that ‘an internationalised territory is subject to the interim 

administration of a subsidiary organ of an international organisation’ (Knoll, at 408). Wilde’s 

work examines what the author refers to as international territorial administration (ITA), or 

territorial administration by international actors, with ‘territorial administration’ defined as ‘a 

                                                 

5 

 H. F. Kiderlen, Von Triest nach Osttimor: Der völkerrechtliche Rahmen für die Verwaltung von Krisengebieten 

durch die Vereinten Nationen (2008). Kiderlen’s translation of his title is From Trieste to East Timor: The Legal 

Framework for the Administration of Areas of Conflict by the United Nations. 

6 

 G. Fox, Humanitarian Occupation (2008).  

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formally-constituted, locally-based management structure operating with respect to a particular 

territorial unit, whether a state, a sub-state unit or a non-state territorial entity’ (Wilde, at 21).  

For Wilde, ITA includes administration performed by both international organizations and 

international appointees serving on locally-based bodies such as courts and electoral bodies.  

Stahn also uses the term ‘international territorial administration’, but defines it as ‘the 

exercise of administering territory by an international entity for the benefit of a territory that is 

temporarily placed under international supervision or assistance for a communitarian purpose’ 

(emphasis added),  thus  seemingly narrowing Wilde’s definition  in some respects (Stahn, at 2– 

3). Kiderlen, in line with his aims, has defined his subject matter more narrowly as the 

administration of ‘crisis’ areas by the United Nations.7 However, he recognizes that there can be 

different bases for ITA and other actors involved (Kiderlen, at 2).  

Finally, Fox is concerned with ‘humanitarian occupation’, which he considers a discrete 

category of international administration initiated following the end of the Cold War which is 

distinguishable from earlier experiments with administration by international actors on the basis 

that the principal rationale for humanitarian occupations is the welfare of the inhabitants of 

administered territories. According to Fox, humanitarian occupation is ‘the assumption of 

governing authority over a state or a portion thereof, by an international actor for the express 

purpose of creating a liberal, democratic order’ (Fox, at 4).   He stresses that the goal of such 

initiatives ‘has been to end human rights abuses, reform governmental institutions and restore 

peaceful existence among groups that had recently been engaged in vicious armed conflict’ (Fox, 

at 3).  Fox claims that ‘[a]lmost everything about these missions differed’ from earlier cases of 

international administration (Fox, at 42), stressing that ‘if the early cases of international 

governance primarily served the interests of outsiders, the post-Cold War missions primarily 

served the interests of insiders – the citizens of host States’ (Fox, at 43).   

Definitional differences, even those that may appear subtle, have important 

consequences – the most obvious being their implications for which ‘administrations’ and 

activities fall within the purview of study.8 It is useful to stress two further points. First, the 

                                                 

7 

 In Kiderlen’s words, ‚Gegenstand der Arbeit sind die volkerrechtlichen Rahmenbedingungen für die Verwaltung 

von Krisengebieten durch die Vereinten Nationen‘.  However, he goes on to specify that ‘[d]er Begriff Krisengebiet 

ist dabei weit zu verstehen‘, including failed states. 

8 

 One of the most contentious being whether the Coalition Provisional Authority in Iraq might be considered an ITA 

administration similar to, e.g., UNMIK. While we are convinced that it is not, we recognize that it raises difficult 

questions. In the works reviewed, Kiderlen considers that it is not (at 205–210), as does Fox, whereas Stahn 

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definition chosen must be appropriate to the case studies that it claims to cover. For instance, 

while it is common for international administration to be associated with the administration of 

territory by an ‘international organization’, it is questionable whether the latter is an accurate 

description of an entity such as the Office of the High Representative (OHR) in BiH – a non- 

member treaty body – although the OHR is generally cited as one of the main examples of post- 

Cold War international administration. While the term ‘international organization’ has been 

defined in different ways, it is frequently understood as referring to an organization with state 

(and potentially other) members established pursuant to an international legal instrument.9 

Accordingly, ‘public international entity’ or ‘public international actor’ may be a more 

appropriate descriptor than ‘international organization’.  

Secondly, definitions which include the element of purpose or motivation (e.g., those of 

Fox and Stahn) create difficulties for the legal analysis of international administration because of 

the subjectivity they introduce. How does one decide what the real purpose of an international 

administration is? How much weight should be given to the stated aims of the international actor 

performing the administrative role? How should one conceive of multi-purpose administrations? 

Finally, purposes may change over time. Should an entire definitional framework depend on or 

change with a nebulous/shifting purpose? Other consequences of different definitions will be 

discussed below. 

2.  International Territorial Administration as a Policy Institution  

One of Wilde’s main achievements is that, confronted with the heterogeneous literature on 

international administration in which the latter is variously described as modern trusteeship, a 

novel method of state-building, an outgrowth of complex peacekeeping, a form of protectorate 

and a return to colonialism, he provides a serious, detailed examination of the different cases in 

which international actors have played an administrative role in the domestic context. The core 

of his work is the effort to identify a ‛policy institution’, or an established practice for common 

ends, within this thicket of cases.  

                                                                                                                                                             

considers international engagement in Iraq a ‘hybrid case of UN restraint in international administration’ and a 

‘unique’ case of ITA (at 363 and 380).   

9 

 The definition provisionally adopted by the International Law Commission for the draft Articles on Responsibility 

of International Organizations states ‘the term “international organization” refers to an organization established by a 

treaty or other instrument governed by international law and possessing its own international legal personality. 

International organizations may include as members, in addition to States, other entities’: ILC, Report of the Fifty- 

Fifth Session (2003), A/58/10, at 33.    

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Wilde’s discussion of international involvement in territorial administration highlights the 

different types of actors which have been used to perform such functions (e.g., entities created by 

the League of Nations, the UN Security Council, and the European Union, as well as the sui 

generis OHR in Bosnia), the different legal bases under which such functions have been 

performed and differences in the nature and scope of such functions. An appreciation of this 

historical diversity is important both for the overall dialogue on use of international 

administration and in considering whether and how to engage in this activity in the future. At the 

same time, Wilde identifies a thread connecting various, seemingly disparate cases of 

international administration and suggests that the post-Cold War UN administrations which have 

attracted such significant attention of late are part of a broader policy institution (i.e., ITA) which 

involves international actors displacing local actors in the act of territorial governance, based on 

perceived problems with the identity of local actors, the quality of their governance, or both 

(Wilde, at 233–234). Overall, his arguments are extremely well-crafted and persuasive. 

Somewhat polemically, Wilde suggests that ITA is part of a broader family of ‘foreign 

territorial administration’, which includes colonialism, state administration in the mandate and 

trusteeship systems, and occupation. As indicated above, suggestions of a link between 

international administration and colonialism are not unusual,10 but Wilde’s contribution in this 

regard is his rigorous, scholarly approach to the issue. According to Wilde, foreign territorial 

administration involves foreign actors displacing local actors in the administration of a territory 

which is conceived as ‘other’ than that of the administering actors (Wilde, at 362–363).   He 

suggests that ‘[w]hen this arrangement is understood in terms of the foreign actor acting “on 

behalf of” the territory and its people, as is the case of all forms of ITA, certain, later forms of 

colonialism, state administration under the Mandate and Trusteeship systems, and “occupation” 

as it is conceptualized in occupation law, it is “trusteeship”. Such arrangements might be termed 

generically “international trusteeship”’ (Wilde, at 363). Whereas the dual mandate in the colonial 

context putatively signified a mandate to act on behalf of the people in an administered territory, 

as well as on behalf of the colonial power itself and states more broadly, in the context of ITA it 

is seen as signifying a dual mandate intended to benefit people within administered territories 

and the international community as a whole (Wilde, at 357).  This link of recent, ostensibly 

‘humanitarian’, international efforts and certain discredited modes of governance inevitably 

                                                 

10 

 See, e.g., K. Marten, Enforcing the Peace: Learning From the Imperial Past (2004).   

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raises legitimacy questions regarding the former which will be discussed below. 

Wilde is not the only author to have made the link between international administration 

and the notion of trusteeship. Knoll, for instance, makes this link as well, and notes that 

‘domestic’ and ‘international’ interests can clash in situations of international administration, 

citing several examples from Kosovo. In this regard, one should consider that, though 

international administrators have obligations to both international and domestic stakeholders, 

their ultimate loyalty is likely to be towards the international actors that are responsible for their 

livelihoods. Perhaps the most troubling example of the tension arising from the ‘dual mandate’ 

relates to the aversion of international administrators and their sponsors to judicial review of the 

administrations’ conduct on human rights grounds. Indeed, such examples tend to call into 

question the very notion of international administrations as ‘trusteeships’.  

It should also be noted that, while the notion of international administrators holding a 

dual mandate to benefit people within administered territories and the international community 

as a whole may be accurate in very broad terms, the relationships such administrators have with 

local and other international actors differ by context. Thus, for instance, the head of the United 

Nations Interim Administration in Kosovo (UNMIK) has been formally plugged into the 

complex UN bureaucracy, and, while the relationships between the various UNMIK heads and 

the UN Secretariat have changed over time, these actors have been in continuous dialogue on a 

range of Kosovo-related matters. In contrast, some international appointees on locally-based 

bodies, such as members of the Constitutional Court of BiH from outside the region, are meant to 

operate in an independent fashion and have sought to do so in practice. Such differences also 

need to be considered in the context of the ongoing debate concerning the legitimacy of 

international involvement in territorial administration, which is the subject of the following 

section.  

3.   Legitimacy  

The question of the legitimacy of international administration runs through all of the works, and 

is dealt with differently by each author. It is of course vital to the wider dialogue on international 

administration, and particularly for discussions regarding future experiments with this policy 

institution.  

How one chooses to define international administration and the linkages that one draws 

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between different forms of ‘outsider’ involvement in governance has significant implications for 

discussions of legitimacy. As noted above, Wilde’s placement of what he terms ITA within the 

larger family of foreign territorial administration – which includes colonialism – raises elemental 

questions about the former’s legitimacy. This taxonomical decision may be warmly received by 

those who are sceptical of international interventions on humanitarian grounds and, particularly, 

those who view governance by outsiders as illegitimate by definition.  

Wilde’s work suggests that focusing the legitimacy debate solely on problems with the 

design and implementation of international administration elides the larger implications of the 

relation of dominance between outsiders and insiders in ITA settings. Wilde does not seek to 

resolve the legitimacy question; rather, he foregrounds it by problematizing arguments used to 

legitimize certain cases of international administration and to dissociate them from more 

universally suspect modes of governance (e.g., arguments  that such cases (1) have been lawfully 

authorized; (2) implement policies reflecting principles of international law that are universally 

valid; (3) are conducted by international organizations that are less self-interested/more 

concerned with ‘humanitarian’ objectives than individual states; and (4) are temporary).  

According to Wilde, ‘[t]o be justified, ITA must be able to resist the fundamental critique 

of trusteeship … that exercising control over people from outside is inherently unjust’ (Wilde, at 

444). To this end, assessment of the legitimacy of international administration would seem to 

require a holistic approach, perhaps including an empirical study of what kinds of systems and 

structures a territory is left with when ‘the internationals’ depart. It is useful to contrast Wilde’s 

scepticism about arguments used to distinguish and legitimize recent cases of international 

administration with Stahn’s comment that ‘UN and international administrations have passed 

through different historical cycles and trials and errors in the exercise of mandates of territorial 

administration. Yet these imperfections do not call into question the validity and merits of the 

concept of international territorial administration as such’ (Stahn, at 733). Indeed, whether to 

view international administration as a policy institution which is inherently illegitimate or one 

which is simply in need of improvement is one of the most difficult and important questions 

which arises in the debate on international administration.  

The fundamental concerns that Wilde raises regarding the use of international 

administration are understandable, as it represents a clear intrusion by the international 

community into a state’s (or other territorial unit’s) affairs and diminishes the ability of 

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individuals to challenge those decisions using the normal domestic apparatus. That said, if one 

goes down the path of questioning the legitimacy of international administration on intrusiveness 

grounds, one needs to grapple with the fact that this creates questions about a huge range of 

international activities.  

Wilde notes that the use of ITA is ‘predicated on the formal distinction between placing 

pressure on a government to take action and actually taking over the machinery of government 

so as to perform such action directly’ (Wilde, at 286). While we understand the desire to draw a 

bright line between different forms of intrusion, we would argue that the fuzziness of the line 

between administration and assistance in many cases and the fact that assistance is sometimes 

arguably more intrusive than administration (e.g., the conditionality policies of international 

financial institutions, on one hand, and the presence of a foreign expert on a domestic 

administrative body on the other) raise the question whether the line between international 

assistance and the direct performance or supervision of administrative tasks by international 

actors from within administered territories should serve as a dividing line between legitimate and 

illegitimate international action.  

In general, those who would consider international administration an inherently 

illegitimate exercise of international power should address the extent to which 

international/domestic boundaries are changing and why international administration (even 

administration conducted on the basis of consent or a Chapter VII resolution of the Security 

Council) is inevitably more problematic than other types of international influence exerted on 

domestic actors. Much of the work done under the Global Administrative Law (GAL) project 

highlights the increasing sway organizations have over state activity in many spheres.11  In a 

sense, GAL purports to identify a new ‘trend’ in public international law. Its proponents argue 

that the ‘domestic–international dichotomy’,12 in which international rules must be translated by 

a domestic government in order to be applicable to private parties, breaks down in the face of the 

‘rapid growth of international and transnational regulatory regimes with administrative 

components and functions’.13 As a result, ‘international bodies make decisions that have direct 

                                                 

11 

 See Kingsbury, Krisch, and Stewart, ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary 

Problems (2005) 15 (hereafter, Kingsbury et al.). 

12 

  Ibid., at 23. 

13 

 Ibid., at 18. This complaint about the traditional view of international law is echoed by a number of scholars of 

international organizations. See, e.g.,Brölmann, ‘A Flat Earth? International Organizations in the System of 

International Law’, 70 Nordic J Int’l L (2001) 319, especially at 320. 

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legal consequences for individuals or firms without any intervening role for national government 

action’.14   

It is extremely useful to consider Wilde’s arguments in conjunction with an understanding 

of the concerns raised by the GAL project and other cases of international/domestic interface. 

For example, the Special Court recently created to try the alleged perpetrators of Rafik Hariri 

uses international and Lebanese judges whose identities are currently not disclosed (apparently 

for their own safety).15 Had it not played a role in its creation, the international community 

would likely be crying foul for a number of reasons. Indeed, viewed within this broader context, 

Wilde’s writing and arguments are compelling and force us to think critically and deeply about 

the way in which states and the international community can engage with one another for the 

betterment and advancement of all.16   

It is also useful to consider whether different types of ITA, as defined by Wilde,  have 

different implications from a legitimacy perspective.  Even if all cases of ITA, from international 

administrators vested with plenary administrative power to international appointees on domestic 

bodies, must resist the fundamental critique that they are unjustly exercising control over a 

population, close consideration of the way in which these different types of ITAs operate and 

exert such control is warranted.   

Many of the other works under review address the legitimacy question as well. For 

instance, Stahn suggests that various models of legitimation can provide at least a partial 

justification for ‘the exercise of governmental authority beyond the state’, referring inter alia to 

legitimacy qua consent, legitimacy through accountability, legitimacy based on emergency 

powers, and functional legitimacy (e.g, expertise and neutrality) (Stahn, at 41 and 519).  

However, he rightly stresses that these conceptual bases of legitimacy do not always translate 

into legitimacy in practice.  

Stahn also suggests that the legitimacy of international involvement in territorial 

governance turns in part on its transitional nature, arguing that international administration 

                                                 

14 

 Kingsbury et al., supra note 11, at 24. 

15 

 Moreover, the Rules of Procedure and Evidence allow for trials in absentia. See Special Tribunal for Lebanon, 

Rules of Procedure and Evidence, 20 Mar. 2009, Rules 106–109.  Although it was stated that the judges’ identities 

would be revealed when they were sworn in on 1 Mar. 2009, they remain secret. See ‘Judges sworn in at Lebanon 

Tribunal’, The Hague Justice Portal, 25 Mar. 2009, available at: 

www.haguejusticeportal.net/eCache/DEF/10/471.TGFuZz1FTg.html (accessed 17 Apr. 2009). See also UN SC 

Resolutions 1664 (2006) and 1757 (2007).  

16 

 Stahn makes a passing reference to this broader debate (Stahn, at 759).  

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should be temporally limited in order to avoid conflicts with principles of self-determination and 

democratic governance (Stahn, at 741).17  From this standpoint, if international administration 

were to be suggested in the future as a means for permanent neutralization of a conflict (as was 

the plan for Danzig in the inter-war period), this would be likely to raise serious concerns from a 

legitimacy perspective. The most recent doctrine published by the UN Department of 

Peacekeeping Operations (DPKO) indicates that international administration continues to be 

viewed as a viable policy institution in the context of UN peace operations, but stresses the 

transitional nature of such administration.18 In our view, particularly given that interim 

international administrations have in some cases been in place for many years, and often much 

longer than originally anticipated,  the temporally-limited character of an administration should 

not be a justification for failing to engage seriously with questions regarding domestic 

governance by international actors.   

Fox’s argument that earlier international administrations were primarily for the benefit of 

‘outsiders’, while  his ‘humanitarian occupations’ are primarily for the benefit of citizens of host 

states, is also relevant for the legitimacy debate. However, arguments of this sort must contend 

with the problems which have arisen in practice where international and domestic interests have 

come into conflict. One should bear in mind the problems encountered in seeking to hold 

international administrations accountable for human rights violations within governed territories. 

Another issue which arises in this context is the extent to which concerns regarding the 

legitimacy of international administration have been assuaged by the fact that the UN has 

frequently been involved in such cases, particularly if regional organizations become more 

interested in performing such a role in the future. All of Fox’s examples of ‘humanitarian 

occupation’, with the exception of the OHR in BiH, are UN administrations. Stahn argues that 

‘the UN remains the best and the “least illegitimate of all outside actors” to take on tasks of 

international administration’ (Stahn, at 738). Even if true, it is appropriate to consider the debate 

                                                 

17 

 Kiderlen argues that temporariness is a legal requirement of administrations authorized under Chap. VII of the UN 

Charter: once the threat to the peace giving rise to the establishment of the administration has subsided, the factual 

situation supporting the adoption of the resolution no longer exists and the administration should terminate within a 

reasonable period of time. For his part, Fox argues that ‘temporarily suspending a state’s autonomy is appropriate 

when a liberal and autonomously self-sustaining state is the evident goal’ (Fox, at 308).  

18 

 UN Department of Peacekeeping Operations and Department of Field Support, United Nations Peacekeeping 

Operations: Principles and Guidelines (The Capstone Doctrine) (2008), at 37. 

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concerning the UN Security Council’s decision-making process in this context. 19   

 As indicated, Fox argues that ‘humanitarian occupation’ reflects the international 

community’s commitment to existing state borders. He observes that ‘[n]orms of physical 

integrity, equality and political pluralism have replaced indifference toward the most destructive 

aspects of ethno-nationalism…. borders and populations are taken as essentially immutable; it is 

a government’s failure to accord equal rights to all its citizens that is subject to change’ (Fox, at 

122–123). This argument has implications for the legitimacy debate as well. In general, it is 

difficult to dispute what Fox refers to as the ‘normative commitment to existing State borders’ in 

contemporary international law (Fox, at 117). As he notes, this commitment was evident in 

Eastern Slavonia, where the main objective of the UN Transitional Authority in Eastern Slavonia, 

Baranja, and Western Sirmium (January 1996–January 1998) was to reintegrate a territory within 

Croatia which had witnessed intense fighting into the Croatian legal system. In BiH as well, 

international actors operating in the country have maintained an intense commitment to the 

existing state, even where this has seemingly involved ‘fixing’ problems with the weak Dayton 

Peace Agreement.20 Indeed, in support of his argument Fox might have stressed the role played 

by other actors, such as the OSCE-created Provisional Election Commission, which have taken 

action to strengthen the BiH state.21  

The fact that Kosovo (another of Fox’s settings of humanitarian occupation) declared 

independence in February of 2008 and has to date been recognized by over 60 states obviously 

creates certain difficulties for the argument that humanitarian occupation is grounded in an 

international commitment to existing state borders. Fox recognizes the potential implications of 

Kosovo for his argument, but regards it as an arguably contrary case which runs against the grain 

of support for the territorial integrity of states. Ultimately, what Kosovo may represent is a case 

where the sustained presence of an international administration in a non-state territorial entity 

actually helped to create a reality in which independence became hard to resist, notwithstanding 

proclamations of support for state sovereignty and territorial integrity on the part of those 

international actors who established the administration. More will be said on this below. In 

                                                 

19 

 In this connection, Stahn suggests reforms to the composition and working method of the Security Council (Stahn, 

at 740).  

20 

 For a critical discussion of this approach see Waters, ‘Assuming Bosnia: Taking Polities Seriously in Ethnically 

Divided States’, in D. Haynes (ed.), Deconstructing the Reconstruction: Human Rights and Rule of Law in Postwar 

Bosnia and Herzegovina (2008), at 53. 

21 

 The Provisional Election Commission operated in Bosnia from 1996 to 2001. 

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addition, the UN Transitional Administration in East Timor, another of Fox’s examples of 

humanitarian occupation, arguably does not serve as an example of the international 

community’s normative commitment to existing state borders.22 East Timor under international 

administration is perhaps most properly viewed, as Wilde suggests, as a non-state territory with a 

self-determination entitlement (Wilde, at 153). One wonders, then, whether the commitment to 

existing state borders can truly serve as a 'legitimating' factor for ITA. 

Knoll takes a broad, conceptual approach to the issue of legitimacy. He stresses that 

international administrations have different stakeholders, with different expectations, and draws 

the reader’s attention to the fact that ‘international legitimacy’ and ‘domestic legitimacy’ can be 

negatively correlated (Knoll, at 292, 295–297). In this connection, he suggests that international 

administrations bolster their domestic legitimacy when they devolve power to local actors and 

deliver on their institution-building mandate (Knoll, at 303), and that problems develop from a 

domestic legitimacy perspective where administrations rely on more coercive models of 

governance (Knoll, at 411). This is no small point. One need only look at the history of the UN’s 

administrative role in Kosovo for evidence of the tension that can arise between international and 

domestic legitimacy, as well as that between coercive and ownership models of governance. That 

said, concepts such as ‘international’ and ‘domestic’ can be deconstructed further in many cases. 

Anyone who has worked in conjunction with an international administration can testify to the 

fact that the ‘international community’ is composed of various different actors, often with 

different agendas (including in relation to the international administration itself). Similarly, 

international administrations often operate in domestic environments where local actors do not 

always share the same views on the question of what legitimates international administration. 

Finally, both Knoll and Stahn have devoted significant attention to concerns regarding the 

legal framework governing international administrations and their accountability, and the 

resulting implications for the debate on legitimacy. Thus, Knoll refers to the paradox in which 

the aspirations of administrations ‘are qualified by the absence of key criteria of a Rechtsstaat – 

the democratic creation of laws, the separation of powers, the protection of fundamental 

freedoms, legal certainty and the judicial control of normative acts’ (Knoll, at 329), although he 

                                                 

22 

 His argument may have benefited from a detailed discussion of two other similar cases (which cut both ways): 

UNTEA (where the UN administration accepted highly questionable results of a referendum leading to Irian Jaya 

being integrated into Indonesia) and MINURSO, another failed decolonization mission which has been stalled for 

decades because Morocco will not renounce its claims to Western Sahara. Fox mentions them, but not in this context 

(Fox, at 105, 146–147). 

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suggests that only a few manifestations of local discontent with international administrations are 

actually concerned with such issues (Knoll, at 420).   

Ultimately, assessing the legitimacy of international administration is a subjective 

enterprise. For some, effectiveness in ensuring peace in the administered territory may be the 

predominant concern. In this vein, Stahn argues that undertakings in international administration 

have, to a large degree, been successful, in that they have ‘accomplished at least part of their 

goals and have facilitated a process of transition to peace’ (Stahn, at 737), although one can 

question whether these are the most appropriate factors in evaluating ‘success’. One may instead 

take a long-term view of success – focusing, for instance, on the sustainability and cultural 

relevance of laws/institutions introduced by administrators. The works examined in the present 

review provide a crucial contribution to the debate on legitimacy, but much work remains. 

Further research on this question needs to include a detailed analysis of the role played by 

international administrations in practice, with attention to and respect for the views of individuals 

subject to the jurisdiction of such administrations. It would seem necessary to investigate how 

effective international administrators have been in responding to the needs of individuals in 

administered territories. Where there has been tension between those needs and the more 

strategic concerns of international actors, and/or powerful states associated with such actors, 

what has been the result? It also seems necessary to ask whether international administrators 

have primarily been engaged in promoting universally-valid policies or, rather, in creating 

institutions resembling those within the administrators’ own countries.   

4.  Legal Issues 

Questions of legitimacy are intrinsically linked to legality, including the legal basis and 

framework for international administration. In what follows we have selected what we see as the 

predominant legal issues treated in the books under review, including the legal status of 

administered territories, the legal basis for administration, and the legal framework which applies 

to administering authorities, be they international organizations, individuals, or other entities.   

A.  Legal Status/Personality of Territory under Administration 

All of the authors under review usefully underscore the fact that international administrations do 

not acquire ‘ownership’ of administered territories. Wilde and Knoll, in particular, devote a good 

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deal of ink to this issue, with the latter arguing that international administration is characterized 

by a disjunction between sovereignty in terms of title, on one hand, and territorial 

control/jurisdiction on the other.23 A key factor has been the lack of a claim to ownership on the 

part of international administering authorities (Wilde, at 188). 

That said, the status of territories administered by international actors has varied. Stahn 

refers to: internationalized states (state entities subjected to international control and 

institutionalized power-sharing arrangements within their internal domestic system, while 

domestic authorities maintain territorial sovereignty and jurisdiction), internationalized territories 

(territorial entities which enjoy some attributes of legal personality as a territory, while remaining 

attached to the territorial sovereignty of a specific state), and international territories (territories 

in respect of which no state holds territorial sovereignty) (Stahn, at 540–542). Wilde indicates 

that administrations have operated both within recognized states and in ‘non-state territories with 

distinct legal personality derived from their self-determination entitlement’ (Wilde, at 148, 153). 

The fact that international administrations have sometimes played a role in constituting the future 

status of a particular territory is a separate issue. This foregrounding of heterogeneity in relation 

to status is crucial for a sophisticated understanding of the nature of international administration. 

Questions of agency and international legal personality in connection with international 

administration form a significant component of Knoll’s work. For Knoll, ‘an international 

administration represents a non-state territorial entity on the international plane as its agent’ and 

‘as an ancillary organ of the UN, a territorial administration dispenses temporary political 

authority in order to carry out the functions, and meet the needs, of the international community’ 

(Knoll, at 14–15). It should be emphasized that not every case of international administration 

involves an international actor representing a non-state territorial entity on the international legal 

plane. In BiH, for instance, the OHR operates alongside state officials who are competent to 

operate on the international plane in their own right and have no need of an intermediary. While 

the various individuals who have headed this body have exercised certain administrative 

functions within Bosnia, they have not sought to serve as Bosnia’s agent on the international 

plane. In Kosovo this is increasingly the case. Even where international administrations do 

                                                 

23 

 Both Wilde and Knoll carefully consider and refute the 1961 thesis of Meir Ydit that ‘internationalized territories’ 

are territories over which sovereignty-as-title is exercised by an international body or international organization. See 

M. Ydit, Internationalised Territories: From the ‘Free City of Cracow’ to the ‘Free City of Berlin’ – A Study in the 

Historical Development of a Modern Notion in International Law and International Relations (181 –1960) (1961).   

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operate in non-state territories, it is not inevitable that the former will represent the latter at an 

international level. Whether a particular administration plays the role of international 

representative depends upon a number of factors, including the status of the territory in which it 

operates, the particular needs of the territory, the temporal limits of the administration, and any 

relationship which may exist between that territory and a larger territorial unit.   

Knoll goes on to make the argument that non-state territories under fiduciary 

administration can have a claim to partial international legal personality, with international 

administrators representing the territories’ rights on the international plane. He notes: 

We will consider the following proposition: (i) if a series of acts performed by an agent 

are allowed to be legal acts in the sense that they access the international legal order, 

and (ii) if the agent is admitted to have the capacity to perform them, this performance 

activates the ‘latent’ subjectivity of the entity on whose behalf the agent acts. The 

performance of its subjectivity by an agent hence renders a non-state territory an 

international legal personality with the capacity to pursue its abstract ‘interests’ on the 

international stage. We shall conclude that the performance of a latent entitlement 

entails the establishment of relations between the entity in question and any kind of 

third persons, and thus constitutes legal personality [Knoll, at 139].    

This argument is both interesting and highly polemical (at least with regard to territories which 

do not clearly have an external self-determination entitlement). There are contending theories for 

determining whether a non-state actor has international legal personality and, as Knoll 

acknowledges, international law has been reluctant to widen the range of participants whose 

conduct it purports to regulate (Knoll, at 131), but Knoll’s call for a pragmatic approach is 

persuasive at some levels. It recalls Jan Klabbers’ comment, concerning the international legal 

personality of  international organizations, that ‘as soon as an organization performs acts which 

can only be explained on the basis of international legal personality, such an organization will be 

presumed to be in possession of international legal personality’.24   

Yet, it is important to query whether an international actor’s conclusion of an 

international agreement with putative benefit for an administered territory or its performance of 

another act which accesses the international legal order might not, in some cases, be viewed as 

                                                 

24 

 J. Klabbers, An Introduction to International Institutional Law (2002), at 55–56.    

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an exercise of the international actor’s international legal personality acting in support of 

international interests relating to the relevant territory (albeit often overlapping with the abstract 

interests of the territory itself). This issue deserves further attention. From a policy perspective, 

one should note that Knoll’s argument for international legal personality potentially has 

important implications for the external self-determination hopes of non-state territories subject to 

international administration. Knoll includes a fascinating 2005 memorandum to a former Prime 

Minister of Kosovo (author not mentioned25), recommending that Kosovo seek inclusion in 

multilateral arrangements to enhance Kosovo’s position on the international stage –something 

which would be difficult to abrogate in the future. If international administration comes to be 

viewed as a means for non-state territorial units to attain international legal personality, and it is 

considered difficult to walk back from such personality, it may come to be seen as an extremely 

risky policy tool.26   

B.  Legal Basis 

The authors under review discuss, to varying degrees, the legal basis on which international 

administrations have been or may be founded. The legal basis for administrations can also have 

important consequences for the ensuing legal framework governing the powers of the 

administrators and the way those powers are exercised. 

Both Stahn and Kiderlen provide particularly cogent and extensive discussions of the 

legal basis for territorial administration in the context of the UN Charter. Both authors approach 

the topic in terms of the main peacekeeping powers of the UN: as consent-based (‘Chapter VI ½’) 

operations and as enforcement action under Chapter VII. 27  Kiderlen ruffles no feathers by 

arguing that the consent of the host state is necessary when the UN is relying on its peacekeeping 

powers to administer territory, but not when it is relying on its Chapter VII enforcement powers. 

                                                 

25 

 In fact, it is somewhat ambiguous whether the 'memo' is real or whether it is a literary device of Knoll's own 

drafting to illustrate his arguments better. 

26 

 In fact, elites in secessionist entities may consider it crucial that Kosovo has been administered independently 

from Serbia, supported by a substantial number of states and the EU: see  Orakhelashvili, ‘Statehood, Recognition 

and the United Nations System:  A Unilateral Declaration of Independence in Kosovo’, 12 Max Planck Yrbk UN L 

(2008) 1, at 23. The Report of Special Envoy Ahtisaari states, ‘The establishment of [UNMIK]…and its assumption 

of all legislative, executive and judicial authority throughout Kosovo, has created a situation in which Serbia has not 

exercised any governing authority over Kosovo. This is a reality one cannot deny; it is irreversible’: Report of the 

Special Envoy on Kosovo's Future Status, UN Doc S/2007/168 (26 Mar. 2007), at para. 7 (emphasis added).   

27 

 There is comparatively little in any of the works on recent cases where the legal basis for establishment of an 

international administration does not fall squarely within one or the other of these categories, such as in BiH.  

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However, going beyond normal peacekeeping doctrine, Kiderlen argues that when a territorial 

administration mission by the UN is consent-based, the mission needs the consent of the host 

state for all of the capacities and modalities of the operation (Kiderlen, at 124).28 While he 

admits that consent-based administrations may be hamstrung by uncooperative parties, he 

concludes that consent is a suitable basis for the exercise of territorial administration and has the 

advantage of enhanced legitimacy (Kiderlen, at 124–125 and 119). In this connection, he argues 

that the Security Council has a type of subsidiary power even under Article 24(1) to take 

compulsory measures, although in a much lesser sense than when it is acting under its Chapter 

VII powers (Kiderlen, at 115–119).29  

In contrast, Stahn, in a more cursory examination raising some of the same issues, comes 

to the opposite conclusion, arguing that there is ‘substantial doubt…as to whether Article 36(1) 

provides a solid legal basis for the establishment of UN administrations specifically’, in 

particular on the grounds that the need for continuing consent is ‘incompatible with the 

organisational design of UN administrations, which are usually established as fixed-term 

operations without the possibility of unilateral revocation by domestic actors’  (Stahn, at 435). 

While Stahn’s concerns are understandable, they do not seem to be borne out by the facts. In fact, 

what neither author addresses in detail is precisely whose consent is relevant and for what 

reasons.  While host state consent may be superfluous in terms of the legality of the 

establishment of a mission when there is a Resolution adopted by the Security Council under 

Chapter VII of the UN Charter, the absence of consent can have an impact on the legal 

framework which subsequently applies – for instance, the applicability of the law of occupation 

is highly dependent on the presence or absence of consent.    

Moreover, the requirement of host state consent for legal reasons in Chapter VI peace 

operations (so as not to contravene Article 2(7) of the Charter) jives with – but is not identical 

to – the consent sought by DPKO in order to ensure the success of its operations. The consent of 

all stakeholders sought by the DPKO is more likely to enhance legitimacy than the bare host 

state consent Kiderlen relies on. Indeed, Serbia continued to consent to the presence of UNMIK 

                                                 

28 

 Although there is some debate, general consensus holds that once the host state has consented to a peace 

operation, the Secretary-General and his delegates do not require consent for each and every act. See Di Blasé, ‘The 

Role of the Host State’s Consent with regard to Non-coercive Actions by the United Nations’, in A. Cassese (ed.), 

United Nations Peace-Keeping: Legal Essays (1978), at 55.  

29 

 He notes that there is no power to take coercive measures against states absent a Chap. VII mandate, but argues 

that such measures may be taken against groups and individuals in some circumstances. 

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in Kosovo long after local authorities in Kosovo stopped consenting to it; but, as Special 

Representative of the Secretary General Lamberto Zannier has stated, even with a Chapter VII 

mandate and, in theory, concomitant powers, UNMIK has been effectively prevented from 

carrying out that mandate in the absence of the consent of local authorities.30 Thus, the existence 

of consent sufficient to found a mission’s legal basis will not necessarily be decisive with regard 

to the perceived overall legitimacy of that administration.  

Fox, like Kiderlen and Stahn, states that the administrations he terms ‘humanitarian 

occupations’ have been based on two legal grounds: agreement with the host state and a Chapter 

VII Security Council Resolution (Fox, at 8). Acknowledging the problems associated with the 

nature of the consent in such cases, he argues that ‘agreements supporting humanitarian 

occupation missions are likely valid only because of supporting Security Council resolutions’ 

(Fox, at 217). Fox questions this legal basis, including whether it violates the right to self- 

determination. In the end, however, he argues that ‘[b]oundaries on the Council will emerge not 

from the four corners of binding obligations but from the process of Council law-making’ (Fox, 

at 295) and, in this vein, discusses the democratization of the law-making process. Fox is right to 

point out the questions associated with existing justifications for international administration, and 

his suggestions for making Security Council decision-making less insular are well taken. 

However, it is highly questionable whether process-based means of circumscribing the Security 

Council’s authority would provide a substitute for legal regulation. Indeed, Fox’s work would 

seem to call for more investigation of the relationship between Security Council-established 

‘humanitarian occupations’ and legal principles such as self-determination, rather than an 

abandonment of such investigation on grounds of the Council’s ‘essential role’ in matters of war 

and peace (Fox, at 307) and its pursuit of collective goals.  

As a final word on the legal basis for international administration, one needs to bear in 

mind that specific legal questions arise where international actors legally present in a territory 

take on an administrative role without a formal mandate to do so. Even where the presence of an 

international actor in a territory can be legally justified, the specific functions performed by such 

actor may, in some cases, be ultra vires.  

                                                 

30 

 Address by Ambassador Lamberto Zannier, Special Representative for the UN Interim Administration Mission in 

Kosovo (UNMIK), to the OSCE Permanent Council, 4 Sept. 2008. Because this occurred following Kosovo’s 

unilateral declaration of independence, there is an element of a lack of ‘host state’ consent, but the issue has not 

been formally treated as such. 

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C.  Legal Framework 

The existence of a clear legal framework which applies to international actors administering 

territory, defining their duties and obligations, is vital to the accountability and legitimacy of 

such administrations. While the existence of a general legal framework which would apply to all 

such entities remains elusive, particularly in light of the heterogeneity of international 

administration, Kiderlen’s major contribution to the literature is his attempt to sketch, in a 

systematic and legally rigorous manner, the legal framework which applies to the UN when it 

administers territory. In this endeavour, Kiderlen examines the ‘internal’ boundaries on UN 

Security Council action (i.e., those arising through an interpretation of the Charter itself), 

‘external’ boundaries (customary international law), and ‘indirectly imposed’ boundaries – that is, 

obligations binding on member states which apply to the UN when it is filling the role of a state.  

In his discussion of internal boundaries, Kiderlen concludes that the Security Council has 

three clear obligations which arise under the Charter: the obligation to maintain international 

peace and security, the protection and promotion of human rights, and the obligation to respect 

the right to self-determination. He argues that, while these obligations are equal, when they 

conflict, as they may do when the UN is administering territory, the obligation to maintain 

international peace and security is paramount. (Kiderlin, at 268–269).  In his analysis of 

competing obligations, Kiderlen provides criteria for when the Security Council’s obligation to 

ensure international peace and security takes a paramount role over other obligations. He 

discusses the controversial capacity and necessity of a UN administration to ‘derogate’ from 

human rights treaties to which it is technically not a party in this light. Kiderlen seems to believe 

that the 2004 riots in Kosovo could qualify as a sufficient security threat warranting a suspension 

of rights; this assessment, without further development and reliance on jurisprudence, is 

surprising (Kiderlen, at 320–321). Nevertheless, and although the overall argument may be 

contentious, the clear manner in which his argument regarding competing obligations is 

presented helps to focus and clarify the debate.  

In the context of ‘internal’ obligations, Kiderlen also considers whether the Trusteeship 

regime in the Charter provides a lex specialis when the UN engages in the administration of 

territory. Rejecting that notion, he comes to a similar conclusion to Stahn, that the Trusteeship 

regime plays a ‘guidance’ role rather than providing a set of hard and fast legal rules (Kiderlen, 

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at 255–259; Stahn, at 455–457).  

With respect to customary law, Kiderlen argues that in general it does not impose 

significant limits on Security Council action, since for the most part the Council is bound only by 

customary law constituting ius cogens. Kiderlen’s argument that the Security Council is bound to 

a certain extent by the obligations binding states when it is filling the role of a state is careful but 

short. He considers various aspects of the theory of delegation of powers by states to the UN at 

its creation and concludes that it again boils down to a question of ius cogens (Kiderlen, at 302– 

309). This is an unusual conclusion; while the legal value of Security Council resolutions which 

contravene ius cogens is widely questioned, once the Council has created a subsidiary organ it is 

not common to argue that that organ itself is bound only by ius cogens and not general customary 

law.  

Above all, Kiderlen’s careful, systematic analysis of the legal framework helps to 

generate a coherent picture based on sound legal arguments, even if we may not agree with all of 

his conclusions. As a general legal framework for the UN, Kiderlen’s approach provides a 

valuable contribution to our understanding of that field. Unfortunately, with EULEX and the 

International Civilian Office/International Civilian Representative taking over in Kosovo and the 

example of the OHR in BiH, a purely UN-focused approach cannot provide all the answers, even 

for current administrations. In any case, against this more general background, the specific 

mandates for each administration, whatever form they may take, must be considered. 

Stahn also provides an in-depth discussion of the legal framework applicable to 

international administrations. While he insists that contextual differences argue against the 

application of a single, universally-applicable legal framework in all cases where international 

actors are involved in the administration of territory, he suggests that legal limitations on the 

power of international administrators can arise, inter alia, from the UN Charter, customary 

international law (including the guarantee of self-determination and universally accepted human 

rights), and treaty law (Stahn, at 761, 454–516).  One particularly interesting argument that he 

makes is that democratic standards may apply to international administrations through a 

conception of democracy as a human right. He argues that ‘international territorial 

administrations may encounter an objective duty to ensure and respect the democratic rights and 

freedoms inherent in a democratic society. This duty may…oblige the administration to 

institutionalize checks and balances in the framework of the mission, to apply principles of state 

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organisation (separation of power, accountability, judicial independence) in the establishment of 

governing structures and to increase the involvement of local stakeholders in legislative and 

executive decision-making’ (Stahn, at 514–516). He suggests that, over time, this obligation may 

turn into an entitlement to democratic governance. This dovetails with Knoll’s discussion of the 

importance of local institution-building and gradual devolution of power in international 

administration, as well as its underlying emphasis on self-determination. It should be highlighted 

that, even if a right to democratic governance does exist, its precise scope and content are unclear, 

as Stahn acknowledges. That said, Stahn’s argument presents an intriguing way of approaching 

questions of international accountability and local ownership in international territorial 

administration.  

One issue that is somewhat problematic in several of the works under review is the 

treatment of the applicability of the law of occupation to international administration. Knoll and 

Kiderlen suggest the law of occupation is inapplicable de jure to such administrations, in part on 

the ground that the law of occupation demands preservation of the status quo, whereas 

international administration is designed to transform a territory, be it a state or non-state entity 

(Knoll, at 244–245; Kiderlen, at 332–346).31 However, the issue of whether that law applies is 

not determined by the content of the rules or the legitimacy of the occupied government but 

rather, as for all of international humanitarian law, whether the factual situation triggers its 

application. Hence the importance of consent, discussed above. Since Article 43 of the Hague 

Regulations of 1907 is arguably not ius cogens, the UN Security Council may derogate from it, 

such that the law of occupation is not necessarily incompatible with international administration. 

If the law of occupation is applicable, it may fill in gaps in the mandate. Moreover, the respect of 

the spirit of the principle enshrined in Article 43 may incite awareness among administrators that 

they are not writing on a blank slate, but that the changes they introduce should stick close to 

local laws and traditions.32 In the end, Kiderlen rightly dismisses arguments that the law of 

occupation should not apply to international administrations on the ground that the goals of the 

international community are to aid the population and insightfully points out that the goals of the 

international community and those of the population in the administered territory will not 

                                                 

31 

 While both authors also provide other grounds for the inapplicability of the law of occupation which are more 

persuasive, each invokes this line of reasoning. Curiously, Kiderlen’s English language summary of his work does 

not accurately represent his better and more nuanced arguments in German on this point (compare at 449 and 345).  

32 

 Sassòli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, 16 EJIL (2005) 661.  

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necessarily always coalesce (Kiderlen, at 337–338). For his part, Knoll takes the opposite view 

to most and argues that if the Security Council intended an administration to be subject to IHL 

(and the law of occupation) it would have to have specifically stated as much in the enabling 

resolution (Knoll, at 246). This is contrary to the usual view that the Security Council is bound 

by international law unless it specifically derogates from it. We are not inclined to support a view 

that the four corners of a Security Council resolution represent the entire body of international 

law applying to that situation and disagree with Knoll on this point.  

 Although international administration does not operate in a legal vacuum, Knoll and 

Stahn in particular have pointed out that international administrations have in practice frequently 

experienced problems of legal clarity (Knoll, at 430–431; Stahn, at 656), and this has led to 

questions regarding mandate creep. Stahn criticizes the fact that, although acts of UN 

administrations must be related to the objectives of peace maintenance, this limit has ‘been 

interpreted in an extensive fashion in UN practice’, leading them to be overly intrusive (Stahn, at 

654).  It should be said that arguably ultra vires action by international administrations has been 

both criticized and welcomed by actors within governed communities in accordance with their 

political positions and their expectations of international administration. Thus, it is perhaps too 

simple to argue that mission creep is problematic because it threatens to undercut the 

expectations of domestic political actors.33 Nevertheless, it is clear that, notwithstanding the 

benefits of constructive mandate ambiguity for international administrations themselves and 

some individuals within administered territories, the dearth of clear standards regulating 

international administrative authority is inconsistent with fundamental rule of law principles.  

            In addition, some obligations in the mandates of international administrations appear to 

conflict. Consider, for example, the simultaneous obligation to protect human rights and to 

devolve power to local institutions in UNMIK’s mandate.34 A perception that local authorities 

will take actions which contravene human rights or that they require further ‘training’ in order to 

be able to protect them may incite international actors to prioritize human rights protection over 

self-determination.  

To a certain extent, these concerns may be minimized through greater attention to the 

crafting of the mandates of international administrations. At the same time, even ‘normal’ 

                                                 

33 

 For this argument see Ford and Oppenheim, ‘Neotrusteeship or Mistrusteeship?  The “Authority Creep” Dilemma 

in United Nations Transitional Administration’, 41 Vanderbilt J Transnat’l L (2008) 55.   

34 

 SC Res 1244, at para. 11(d) and (j). 

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governmental authorities sometimes have seemingly conflicting obligations, and it may be 

difficult to eliminate these entirely. In addition, while one may agree in principle that 

international administrations should be cautious about exercising their power in a highly 

interventionist fashion, this does not resolve the question of where one should draw the line. 

Determining the appropriate nature and scope of international administrative powers in post- 

conflict situations is often particularly tricky, given that peace-maintenance is increasingly seen 

as requiring a holistic effort geared toward addressing the roots of conflict and preventing its 

recurrence. Moreover, the precise measures necessary for effective peace maintenance will differ 

from context to context. From our perspective, what would seem to be crucial, apart from 

mandate clarity, is that international administrations make serious efforts to ensure that their 

exercise of governmental authority represents a good faith, proportionate response (Kiderlen, at 

324–326) to the problems that they are meant to address in governed territories. In addition, the 

absence of a body which can oversee the interpretation and implementation of such complex and 

demanding mandates leaves administrators to muddle through and, worse still, leaves the people 

in the administered territories without means to challenge the process of clarifying the legal 

regime or the decisions which ultimately result from it. Thus, the creation of accountability 

structures in connection with international administrations should be a priority. 

D.  Accountability 

A major concern which reappears in the works discussed above is the dearth of rigorous 

accountability mechanisms in connection with international administration.  Stahn observes that 

ITAs have tended to be perceived more as ‘functional entities ruled by the laws and principles 

applicable to international organisations (e.g., in terms of privileges and immunities, legal 

obligations and intra-institutional power-sharing) than as state actors governed by standards of 

domestic law’ (Stahn, at 21).  Unlike many commentators on international administration, he 

does not simply condemn the ‘accountability gap’ existing in this context; instead, he discusses 

various mechanisms of accountability and their relevance for international administration. His 

treatment of this issue is a sensitive one, which recognizes the difficult circumstances in which 

many ITAs operate, but he nevertheless provides quite specific policy recommendations for 

enhancing ITA regulation which will be of use to anyone contemplating the future use of ITA. 

These include independent administrative supervisory bodies to review acts adopted by 

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internationally established agencies, claims commissions for the purpose of recovering damages 

suffered from acts of international administrations, judicial review of certain international 

administration decisions by domestic courts, and potential review by international courts and 

tribunals (Stahn, at 615–616).  

 Knoll delves into the accountability issue as well, and provides a discussion of the 

problems with review of international administration decisions studded with examples from BiH 

and Kosovo. In an interesting examination of the Human Rights Advisory Panel in Kosovo, 

Knoll chronicles the difficulties associated with creation of even a non-judicial body to review 

UNMIK decisions for compliance with human rights norms. As in other sections of the work, 

inter-office memoranda and other documents not available to the general public provide a 

window into the priorities and concerns of UNMIK officials. The fact that the Human Rights 

Advisory Panel has finally begun to operate and issue decisions may enable further public 

scrutiny of UNMIK accountability as the operation winds down.35  

While the above-discussed contributions to the dialogue concerning the accountability of 

international administrations are very strong, there is need for much more research on this issue. 

In particular, more work is needed on questions related to the legal responsibility of international 

actors, taking into account the ongoing work of the International Law Commission with respect 

to the responsibility of international organizations. There is also a need for further research 

concerning the legal responsibility of international actors which are not directly engaged in the 

performance of international administrative functions, but which nevertheless play a role in 

connection with international administrations, to include states which implement decisions 

issued by international administrations and states providing aid and assistance to such 

administrations. Another key question relates to the relevance of Chapter VII Security Council 

Resolutions establishing/endorsing international administrations for the reviewability of the 

conduct of such administrations and the conduct of other actors ostensibly acting in furtherance 

of their goals. Knoll provides an insightful critique of the European Court of Human Rights’ 

position in the Behrami case that ‘measures taken in pursuit of a Chapter VII mandate 

cannot…be measured against concrete standards of human rights treaty law, as a matter of 

                                                 

35 

 Only one petition to date has been decided on the merits; all others have been declared inadmissible, often 

because the complaint was lodged more than 6 months following receipt of the impugned final decision. This, even 

when such final decision was issued when the Regulation creating the Panel had been adopted but the Panel itself 

was not constituted and nothing other than a general UNMIK address to which complaints could be sent apparently 

existed. See the list of decisions at www.unmikonline.org/human_rights/cases.htm (last accessed 26 Oct. 2009).  

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normative hierarchy’ 36 (Knoll, at 377). The Court’s decision to follow this line in its recent Berić 

decision involving individuals removed from public office by the High Representative in BiH37 

provides cause for further concern regarding the ability of Chapter VII resolutions to insulate 

conduct taken in connection with an international territorial administration from review.  

Here it should be said that, although Articles 25 and 103 of the UN Charter can give rise 

to a tension in ITA contexts with respect to the relationship between human rights norms and 

obligations perceived as arising under Chapter VII Security Council resolutions, it would seem 

important not to allow the mere presence of a Security Council resolution in connection with an 

ITA to serve as justification for insulating all ITA decisions from scrutiny on human rights 

grounds. Knoll is persuasive when he observes that ‘[w]hile Articles 25 and 103 allow for the 

derogation of international treaty law, the SC must be presumed to do so explicitly’ (Knoll, at 

377).38  It would seem appropriate to interpret Chapter VII resolutions, as far as possible, in a 

manner consistent with international human rights law – particularly in light of the UN’s own 

role in promoting respect for human rights.39  Recent judicial developments suggest a greater 

willingness on the part of some courts to engage in review on human rights grounds even in the 

face of a Chapter VII Resolution which could be seen as precluding such review. These include a 

2006 decision of the BiH Constitutional Court involving the failure of BiH to meet its positive 

obligation under the Constitution to take reasonable steps to secure an effective remedy for 

individuals removed from office by OHR.40   

Finally, ‘accountability’ takes on different meanings in different cases of international 

administration (e.g., ‘internationals’ serving on domestic governmental bodies; an international 

entity used to perform a discrete governmental functions; an international entity exercising 

plenary governmental power in a territory), and mechanisms developed to enforce accountability 

                                                 

36 

 App Nos 71412/01 and 78166/01, Admissibility Decision of the European Court of Human Rights in the Cases of 

Behrami and Behrami v France and Saramati v France, Germany and Norway (2 May 2007).  The quoted language 

represents Knoll’s characterization of the Court’s position. 

37 

 App Nos 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 

100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 

1180/05, 1185/05, 20793/05, and 25496/05, Admissibility Decision of the European Court of Human Rights in the 

Case of Berić and Others against Bosnia and Herzegovina (16 Oct. 2007).   

38 

 Indeed, this argument seems to contradict Knoll's earlier position noted above regarding the law of occupation 

(Knoll, at 246). This argument has also been made by Sassòli with regard to the applicability of international 

humanitarian law and peace operations. See supra note 32.   

39 

 See, e.g., Art. 55 of the UN Charter, which provides that ‘the United Nations shall promote…universal respect for, 

and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or 

religion’.  

40 

 Constitutional Court of BiH, Appeal of Milorad Bilbija and Dragan Kalinić, AP 953/05, 8 July 2006. 

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should be tailored accordingly. 

5.  Conclusion  

International territorial administration is a big, complicated enterprise which raises equally big 

and complicated questions of international relations and international law. The study of it is 

particularly fascinating because it forces scholars to deal with issues which are testing the 

boundaries of international law – not only do we need arguments as to how that law applies to 

new subjects, but also for the more delicate issues of how it can be operationalized and 

reconciled with the unique characteristics and needs of international organizations and other 

entities. Moreover, territorial administration tests the limits of international actors themselves – 

what they can do and what they should be mandated to do – in circumstances where there is no 

domestic governmental authority through which their actions are mediated. It is an international 

legal dialogue occurring largely between ‘new’ subjects: organizations and individuals. As we 

have indicated, it can even involve international actors whose status remains undefined. Viewed 

in this light, it is not surprising that questions of legitimacy seem to pervade the discourse.  

        This also helps to explain why international administration has received so much attention 

from five scholars of high calibre. Wilde’s focus on the broader issues relating to international 

territorial administration gives a young field a great deal of depth. His thought-provoking work, 

which identifies ITA as a policy institution and argues that it is part of a broader family of 

‘foreign territorial administration’ (including colonialism), incites reflection and discourages 

lawyers from having a purely technocratic approach to what can be a highly technical field of 

law. At the same time, the efforts of Stahn and Kiderlen to sketch a legal framework for this 

activity are essential to moving the legal debate forward. Their contributions to our 

understanding of the law that applies when international actors, particularly the UN, undertake 

administrative roles in a given territory are valuable. As we noted above, Stahn's mammoth work 

is likely to become a standard reference work on ITA for both scholars and practitioners. Knoll’s 

provocative approach to issues such as the legal personality of non-state administered territories, 

and the wealth of information that he provides concerning international administration in practice, 

will certainly further enrich the ongoing academic discussion on the use of international 

administration. Unfortunately, we fear that Knoll's highly academic style may mean that his very 

interesting work may not be as widely read by practitioners as it deserves to be.  

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Finally, while many aspects of Fox’s work are thought-provoking, we were not entirely 

convinced by his theory of ‘humanitarian occupation’ in the context of ITA scholarship. His view 

that ‘almost everything about’ certain international administrations created following the end of 

the Cold War differed from earlier cases of international administration is questionable, 

particularly when one considers the strong links between recent and historic experiments with 

international administration highlighted by Wilde, Stahn, and Knoll. Moreover, Fox’s contention 

that ‘humanitarian occupations’ were primarily for the benefit of citizens in host states, and his 

view that such occupations represented a commitment to existing state borders, are not 

unproblematic when one closely examines these cases.  We had a sense that his work was driven 

by an effort to find an alternative framework against which he could measure the 2003 

intervention in Iraq – even if it still came up short in his analysis. Fox’s work provides a very 

different way of conceiving the field; consequently, it is difficult to compare his arguments with 

those of scholars using a more traditional approach (insofar as such can already be said to exist). 

Certainly, overall, there remains a need to broaden the discussion further, for instance by 

enquiring whether an even more general legal framework cannot be discerned for a variety of 

types of foreign administration – either in terms of existing law or the law as it should be. In this 

respect, Fox’s work may be construed as an interesting and welcome first attempt. We note that 

the field as a whole continues to attract attention – in the past few months, two substantial new 

works have appeared which touch on many of the issues explored above: Eric de Brabandere’s 

Post-Conflict Administrations in International Law and Oisín Tansey’s Regime-Building: 

Democratization and International Administration, which undoubtedly will add much food for 

thought in the legal and comparative politics debates respectively.41   

Given the fact that the field is in its early days, it is to be expected that there will be many 

points of disagreement. As we have suggested, there is not even a uniformly accepted definition 

of the subject matter. Moreover, as we have noted above, many issues relating to accountability 

remain to be explored. Read together or each on its own, the works reviewed here provide an 

interesting and often solid foundation for further research on the difficult questions which remain.   

                                                 

41 

 E. de Brabandere, Post-Conflict Administrations in International Law: International Territorial Administration, 

Transitional Authority, and Foreign Occupation in Theory and Practice (2009) and O. Tansey, Regime-Building: 

Democratization and International Administration (2009).