UCLA Journal of International Law and Foreign Affairs
*385 STRUCTURES AND STANDARDS FOR POLITICAL TRUSTEESHIP
Henry H. Perritt, Jr. [FNa1]
Copyright © 2003 Regents of the University of California; Henry H. Perritt,
Introduction ......................................................... 387
I. Political Trusteeship Model ......................................... 389
A. What is the Political Trusteeship Model? ........................ 389
1. Common Law Trust Concepts and Political Trusteeship ........... 389
2. Historic Development of Trusteeships .......................... 391
a. British and French Colonial Policy .......................... 391
3. Post-World War II Occupations ................................. 393
a. Allied Occupation of Germany ................................ 393
b. Allied Occupation of Japan .................................. 395
4. The UN Trusteeship System ..................................... 396
5. Recent Interventions .......................................... 398
a. Bosnia ...................................................... 398
b. Kosovo ...................................................... 401
c. East Timor .................................................. 403
d. Afghanistan ................................................. 404
e. Iraq ........................................................ 407
B. Why the Political Trusteeship Model Provides Greater Legitimacy
for Intervention than Other Models ................................. 410
1. Military Occupation ........................................... 410
a. Conquest .................................................... 411
b. Belligerent Occupation ...................................... 412
c. Trustee Occupant ............................................ 414
2. Invited Interventions ......................................... 415
a. Protectorates ............................................... 416
b. Condominium ................................................. 417
c. Peacekeeping ................................................ 418
A. Define the Trusteeship Clearly .................................. 420
1. Clearly Define Where Sovereignty Resides ...................... 420
2. Avoid Archaic Limitations on the Exercise of Sovereignty ...... 421
3. Tie Civil Administration to Military Security Forces .......... 423
B. Build Both International and Internal Legitimacy ................ 424
1. Build International Legitimacy ................................ 426
a. Respect the Importance of International Law ................. 428
(1) Understand that International Law Operates Within an
Evolving Set of Norms .............................................. 429
(2) Reconcile Principles of Sovereignty and Self-determination . 431
(3) Seek Consent or UN Approval ................................ 434
b. Remove Threats to International Peace and Security .......... 436
c. Hold Democratic Elections ................................... 437
d. Enforce Human Rights ........................................ 438
e. Develop Governmental Effectiveness .......................... 439
f. Provide Charismatic Leadership .............................. 440
g. Bring an End to National-stage Conflicts .................... 440
2. Build Internal Legitimacy ..................................... 441
a. Deliver Effective Government ................................ 442
b. Promote Governmental Transparency ........................... 444
d. Promote Popular Confidence in Local Institutions ............ 449
e. Respect Indigenous Personal and Group Pride ................. 451
f. Implement Structures Compatible with Common Ideology ........ 452
g. Harness Tribal Custom ....................................... 454
h. Nurture Charismatic Leadership .............................. 454
i. Bring an End to National-Stage Conflicts .................... 455
C. Develop a Liberal Democracy ..................................... 455
1. Design Institutions that Both Manage Internal Political
Competition and Draw on Unique Local Experiences ................... 457
2. Recruit Leadership Elites from Outside and Inside the Trust
Territory .......................................................... 460
3. Define and Implement Strategies for Economic Development ...... 462
4. Control Corruption but Do Not Let the Issue Dominate the
Agenda ............................................................. 465
D. Announce and Follow an Exit Strategy ............................ 467
1. Expect Post-Conflict Euphoria to Turn into Resentment of the
Trustee ............................................................ 468
2. Clearly Define Triggers for Devolution to Local Institutions .. 469
Conclusion ........................................................... 471
Human rights violations, failed states, refugee crises, the campaign against terrorism, and U.S. foreign policy have combined to put the international community in the position of exercising a measure of sovereignty over formerly independent territories such as Bosnia, Kosovo, East Timor, Afghanistan, and Iraq. This practice of ad hoc international intervention is likely to continue.
There is no known case of intervention where the intervening states have intended to remain permanently. Instead, the intervening states proclaimed their intention to stabilize the situation and then to leave. In these cases, a coherent system of international law could provide the guidelines to facilitate the achievement of these goals. However, international law's capacity to shape such interventions has been limited, particularly regarding when the intervening party should leave and what kinds of changes it can make while it is in charge.
This article proposes a doctrine of political trusteeship as the legal guiding force for continuing and future interventions. The core of political trusteeship consists of international intervention for the betterment of the host territory population. In this sense, political trusteeship explicitly links the international legitimacy of the intervention to the internal legitimacy of the intervention.
Part I of this article explores the political trusteeship concept, relating it to common law trusts, and explaining how it is the natural culmination of post-World War I concepts for international intervention to remove threats to *388 international peace and security and to build capacity for self- government. This part of the article explains why political trusteeship is a better intellectual framework for understanding the recent interventions in Bosnia, Kosovo, East Timor, Afghanistan, and Iraq than other models such as belligerent occupation or protectorate.
Part II of this article offers prescriptions for successful political trusteeships. It suggests that political trusteeships must be clearly designed from their incipience. This requires avoiding any doubt as to both where sovereignty resides and inappropriate theoretical limitations on trustee authority and tying civil administration to command of military and security forces.
Part II then explores the means by which political trusteeships can enjoy both international and internal legitimacy. International legitimacy is based on obedience to international law, obtaining appropriate UN approval for the intervention but avoiding UN administration, blocking threats to international peace and security, holding democratic elections, evincing support for moral norms such as human rights, demonstrating governmental effectiveness, offering charismatic leadership and putting an end to internal conflict. Internal legitimacy is based on administering an effective government, promoting governmental transparency, providing mechanisms for judicial review, building popular confidence in local institutions, respecting indigenous personal and group pride, implementing structures compatible with common ideology, harnessing tribal custom, nurturing charismatic leadership, and bringing an end to national-stage conflicts.
Finally, Part II argues that successful political trusteeships must culminate in the creation of a liberal democracy and then come to a close through the announcement of, and following through on, a sound exit strategy. This section concludes by exploring ways of achieving both.
The article offers the doctrine of political trusteeship, a pragmatic template that goes beyond the Bush Administration's preoccupation with U.S. self-interest and neorealist emphasis on using power to advance these interests instead of international law and internal political dynamics. It explains how all of the post-Cold War interventions enjoy some measure of international legitimacy, but that the quest for equally necessary internal legitimacy is elusive in almost all of these cases due to a failure to be sufficiently explicit about the pre-requisites for such legitimacy, and a lack of willingness to understand local cultures and political dynamics.
A. What is the Political Trusteeship Model?
The political trusteeship concept is modeled on a common law trust. This concept borrows its institutional, legal, and ideological features from the League of Nations mandate system, the UN trusteeship system and the actual experiences with international administration of post-war Germany and Japan, Bosnia, Kosovo, East Timor, Afghanistan and Iraq. Although historical norms for military occupation supplement the political trusteeship concept, political trusteeship is a better intellectual framework for understanding these interventions than older historical models such as belligerent occupation and protectorate.
A political trustee exercises sovereignty over a territory for a limited period of time for the benefit of the population of that territory. The legal relationships involved are analogous to those of a common law trust, and the legal basis is derived from the League of Nations, United Nations, and state practice since World War II.
1. Common Law Trust Concepts and Political Trusteeship
The legal relationships in a common law trust closely approximate the legal relationships desired in a modern international intervention aimed at creating the capacity for independent self-government. [FN1] The Third Restatement states that "[a] trust . . . is a fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it *390 for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee." [FN2]
Applying this concept to international intervention, [FN3] the international community assumes control of a territory, taking responsibility for physical security and civil administration to serve the interests of the population. [FN4] The territory under international supervision is the item that another state, group of states, or the United Nations holds in trust. [FN5] These political trusteeships may be either voluntary or imposed. In either case, acquiescence to an intervention can be construed as consent to a trust. [FN6]
The political trusteeship concept links international legitimacy to important elements of internal legitimacy. The trustee is bound to prepare the trust territory for self-governance. It cannot succeed in this endeavor unless it *391 both builds internal legitimacy for the government it mentors and maintains its own internal legitimacy during the mentorship.
2. Historic Development of Trusteeships
The political trustee concept represents the culmination of a historical evolution of justifications for foreign control of territory. Initially, control of one state by another was justified simply by the desire of the controlling state to exploit the resources of the controlled state. As early as the British and French empires there was a notion of temporary rule for the benefit of the controlled population. Since the beginning of the 20th century, most intellectual energy in international law and some schools of international relations focused on narrowing and refining the bases for international legitimacy of foreign intervention. Principles of non-intervention, self- determination, mandatory control and UN trusteeships, eventually codified in the UN Charter, rendered most of the traditional historical bases for foreign control of territory impermissible. Currently, intervention and control is illegitimate unless necessary to protect international peace and security and/or to prepare the controlled state for successful independent self- governance. [FN7] The recent interventions in Bosnia, Kosovo, East Timor, Afghanistan and Iraq illustrate the culmination of political trusteeship as the animating principle behind intervention.
a. British and French Colonial Policy
The British and French imperial experiences illustrate some of the first steps away from exploitation and toward aspects of trusteeship. British control of India was justified by a belief that the Indian people would ultimately benefit from the transmission of British values and culture. [FN8] The mutiny in 1857 caused a political reaction in Great Britain that insisted on taking control of India away from the British East India Company and placing India directly under royal power. [FN9] The result was the India Act of 1858. [FN10] The political arguments for this act were cast not in terms of British exploitation of Indian resources, but in terms of the need for stronger British involvement to protect the Indian masses from "the anarchy, the rapine, and bloodshed of *392 their contending chiefs and tyrants." [FN11] The concept was one of absolute power for the purpose of preparing the native populations for eventual self-government. [FN12]
By the mid-20th century, French imperial theory [FN13] recognized four types of colonial relationship: subjection, autonomy, assimilation, and association. [FN14] Subjection contemplated government by and for the metropolis, with no consideration for the interests of the populace of the territory. [FN15] Autonomy was associated with the English imperial approach and thought to be inconsistent with French policy. [FN16] Assimilation "view [ed] the colonies simply as a prolongation of the mother country beyond the seas." [FN17] In reality, although the concept of assimilation influenced the administration of colonies, it was always aspirational. [FN18] Association was developed to reconcile the theoretical rigidity of assimilation and the practical realities of colonial administration. Under association, colonial administration was no longer viewed as a unilateral operation; both the French and the natives had to progress. [FN19] Association allowed a degree of self-government, but the admission of this delegation of power was grudging, unlike under British imperial theory. [FN20]
*393 b. The League of Nations Mandate System
The League of Nations mandate system formally adopted the central premise of political trusteeship: that international control must have as its basic goal the preparation of the local population for self-government.
Article 22 of the Covenant of the League of Nations [FN21] applies to "those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the states which formerly governed them and which are inhabited by peoples not yet able to stand by themselves . . ." [FN22] Article 22 then cautioned that the "well being and development of such peoples form a sacred trust of civilization," and concluded that "tutelage of such people should be entrusted to advanced nations . . . and that this tutelage should be exercised by them as mandatories on behalf of the League." [FN23]
Allen Gerson has interpreted Article 22 in the following fashion:
Translated into the terms of municipal trust law we may then say that equitable title, coupled with a remainder interest of full title which would vest in the beneficiary people or peoples upon the mandate's termination, was conveyed to all classes of mandates and to those of class A mandates in particular. Sovereignty as retained by the beneficiary people although in a state of suspension or, as Lord McNair in the International Status of South West Africa case put it "in abeyance; if and when the inhabitants of the territory obtain recognition as an independent state, as has already happened in some Mandates, sovereignty will revive and vest in the new state." [FN24]
Thus, a League of Nations mandate, although limited to specific territories, was equivalent to a political trusteeship modeled on a common law trust.
3. Post-World War II Occupations
After the end of World War II, the Allied Powers followed the doctrine of political trusteeship expressed in the League of Nations mandate system in their occupation of Germany and Japan.
a. Allied Occupation of Germany
The Allied occupation of Germany represents a concrete application of the political trusteeship concept, with special emphasis on phased restoration of sovereignty as the occupying powers oversaw the institutions of liberal *394 democracy. The steps in transferring power to local institutions are instructive in understanding how a modern political trusteeship should be constructed.
The German occupation began with the unconditional surrender of the German High Command in May of 1945. Soon after this surrender, the four occupation powers, the Soviet Union, France, Great Britain, and the United States, assumed supreme authority. [FN25] During the first year of the occupation, [FN26] German administrative institutions were mostly reactivated at the local level and also gradually resumed operations at the state level. [FN27]
In 1948, a deputy ministerial conference decided that the military governors should authorize local officials to organize a constituent assembly to draft the constitution, which would be submitted to the people of the German states for ratification. [FN28] Subject only to the limitations of the Occupation Statute, the German federal government and participating Laender would possess full legislative, executive, and judicial powers. [FN29] Upon establishment of the German Federal Republic, military government would end, and allied *395 responsibilities would be divided, with civil administration headed by a high commissioner, and military functions by a commander-in-chief. A constitution, in the form of a "basic law," was presented to the military governors, approved by them, and ratified by the Laender parliaments in May 1949. [FN30]
For the civil administration, negotiations commenced over a charter for an allied high commission, which was consummated on June 19, 1949. [FN31] By May 1949, all the pieces were in place, and the Federal Republic of Germany began autonomous operation under the general oversight of the Allied High Commission.
The Japanese occupation also represents a concrete application of major features of the political trusteeship concept. It differed from the German occupation in that local institutions in Japan retained greater sovereignty from the outset and legitimated the role of the occupying powers as political trustee.
The Allied occupation of Japan proceeded under an explicit waiver and grant of sovereignty from the Emperor of Japan to the Supreme Allied Commander which was expressed in the September 2, 1945 instrument of surrender. [FN32] This sovereignty was exercised through a three-level structure. The top policy- making body was the Far Eastern Commission (FEC) established by agreement among the United States, Great Britain, and the Soviet Union. [FN33] The FEC was authorized to give policy direction to the Supreme Allied Commander and the Supreme Allied Commander was obligated to withhold the issuance of orders objected to by the FEC. [FN34]
The Supreme Allied Commander was the second-level authority. [FN35] He acted through the Japanese government, namely the Emperor. [FN36] The Emperor and the government committed themselves to follow the direction of the Supreme Allied Commander. [FN37] The crucial post-surrender policy made it clear that while the occupying forces would work through the existing governmental *396 institutions, they would not stand in the way of fundamental changes in that government. [FN38]
On October 4, 1945, a Supreme Allied Commander Directive which was characterized as a "bill of rights," began the process of transforming the government. [FN39] On October 11, 1945, the Supreme Allied Commander instructed the Japanese Prime Minister to begin drafting a new constitution. The constitutional drafting process proceeded under the direction of the Crown Prince and included outstanding constitutional lawyers and Japanese political parties of the left, center, and right. The resulting constitution was adopted by the Emperor, approved by the Supreme Allied Commander and published on March 5, 1946. [FN40]
Despite misgivings by the FEC that early elections would result in the election of too many right-wing and militarist candidates, elections were held on April 10, 1946 at the Supreme Allied Commander's insistence. These elections resulted in the rejection of the extreme right and extreme left, and formed the foundation of a liberal democracy with internal legitimacy. [FN41]
4. The UN Trusteeship System
The UN trusteeship system specified in Chapter XI of the UN Charter was a natural evolution of the League of Nations mandate system that reinforced the basic principles suggested in this article for political trusteeship. [FN42] However, the UN trusteeship system focused on post-colonial transition rather than the types of intervention that have led to the most recent political trusteeships.
The UN "trusts" were aptly named. Commentators have interpreted the UN trusteeship system as recognizing rights of the peoples in trust territories that are tantamount to rights of third party beneficiaries of common law trust agreements. [FN43] The purpose of each trust was independence or self- governance. Accordingly, the responsibility of the trustee was to develop the territory toward eventual self-government "while respecting the right of the peoples of the territory to permanent sovereignty over indigenous natural wealth and resources." [FN44]
*397 Chapter XI of the UN Charter [FN45] recognizes the obligations of "[m]embers of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government" to administer the territories for the benefit of the peoples, to develop the capacity for self government, to further international peace and security, to permit constructive development, and to report regularly to the Secretary-General. [FN46] This language is broader in its coverage than the formal trustee system also established by the Charter. [FN47] Article 73 makes it clear that the late British imperial view [FN48] was to prevail in the future: political trustees (of the general kind, not just trustees under the UN Charter) must administer the territories they hold in trust for the benefit of the inhabitants and not for their own benefit.
Chapter XIII establishes an "international trusteeship system." [FN49] Besides encouraging respect for human rights and furthering international peace and security, the purpose of the trusteeship system was to promote advancement of the inhabitants of the trust territories and develop them progressively towards self-government or independence "as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement." [FN50] Significantly, the text recognizes the possibility of self-government without independence.
Despite its congruence with the political trustee concept, the formal UN trusteeship system provides an ambiguous legal framework for the most recent political trusteeships. Article 77 appears to envision a system applicable to a closed set of territories, including only those held under mandate in 1949, those detached from enemy states in World War II, and territories voluntarily placed under the system by states responsible for their administration. [FN51] While the third class clearly contemplates colonial territories placed into the trusteeship system, the language is broad enough to include countries *398 such as Afghanistan, East Timor, or Iraq being administered by other states, whether or not authorized by the Security Council. [FN52]
5. Recent Interventions
Five international interventions after the formal termination of the UN trusteeship system exhibit the continued viability of the political trusteeship concept. The first three interventions, Bosnia, Kosovo, and East Timor, involved acquiescence by the original sovereign. The two most recent interventions, Afghanistan and Iraq, involved UN Security Council acquiescence to political trusteeships imposed by force. Kosovo was the zenith for UN- sponsored political trusteeship because this was the first time that the international community actually exercised sovereignty explicitly from the outset. However, in every case the intervening parties and sanctioning authorities justified the trusteeship explicitly in terms of governing for the benefit of the local population and for the purpose of preparing the trust territory for eventual self-rule.
Bosnia illustrates international ambivalence about the best legal basis for political trusteeship. The original basis for international involvement in Bosnia was peacekeeping and technical support, not governance. Over time, the UN strengthened its mandate by taking on more governance responsibility. When UN supervision of peacekeeping forces ended with the Dayton Accords, it was followed by ill-defined UN oversight and some narrow forms of continued international involvement instead of a political trusteeship. It was subsequently necessary for the international community to backtrack, and by broadly construing the language of the Dayton Accords, to withdraw sovereign powers from local institutions.
The war among Bosnian Muslims ("Bosniaks"), Bosnian Serbs, and Bosnian Croats ended in 1995 with negotiation of the Dayton Accords. [FN53] The *399 Accords, approved by UN Security Council Resolution 1031, [FN54] constituted a weak form of political trusteeship because the trustee was not explicitly granted formal sovereignty. Annex 4 of the Dayton Accords was entitled, "Constitution of Bosnia and Herzegovina." It contained articles defining the responsibilities between the "entities"--Republika Srpska and the Federation of Bosnia and Herzegovina. [FN55] It also established a parliamentary assembly, [FN56] a presidency, [FN57] a constitutional court, [FN58] and a central bank. [FN59] Article I(1) of this Constitution recognized that:
[T]he Republic of Bosnia and Herzegovina, [which was to] continue as legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders. It shall remain a member state of the United Nations and may . . . maintain or apply for membership in organizations within the United Nations systems and other international organizations. [FN60]
*400 The international community's continued involvement in the exercise of sovereignty in Bosnia was addressed by various provisions of the constitution and more specifically in Annex 10. In Annex 10, the signatories to the Dayton Accords requested the designation of a High Representative of the United Nations. [FN61] In Article II, the high representative was authorized to monitor implementation of the peace agreement by:
[M]aintain[ing] close contact with the parties to promote their full compliance, coordinate the activities of the civilian organizations and agencies in Bosnia, while respecting their autonomy . . . facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation, . . . participate in meetings of donor organizations, . . . and report to the United Nations, the European Union, the United States, the Russian Federation and other interested governments, parties, and organizations. [FN62]
This is hardly a robust mandate to exercise or share sovereignty.
However, other parts of the Dayton Accord diluted local sovereignty. Annex 3 authorized the Organization for Security and Cooperation in Europe ("OSCE") to adopt and implement an elections program for Bosnia, including mechanisms to register political parties, to determine the eligibility of candidates and voters, to determine voter registration provision, and generally to supervise all aspects of the electoral process.
Article VI of the Constitution authorized the president of the European Court of Human Rights to appoint three of the nine judges appointed to the Bosnian Constitutional Court. [FN63] The International Monetary Fund was to appoint a governor to the first governing board of the central bank. Annex 4 made the UN High Representative Chairperson of a Joint Interim Commission, with a mandate to discuss practical questions related to the implementation of the Constitution and to make recommendations and proposals." [FN64]
The international and internal legitimacy of this arrangement proved insufficient. The Sintra Declaration, pursuant to a meeting of the Peace Implementation Council on May 30, 1997, concluded that all the authorities of Bosnia and Herzegovina were failing to live up fully to their obligations under the Dayton Accords and found the operating arrangement "unacceptable." *401 [FN65] In 1997, pursuant to these findings the High Representative used his final authority regarding interpretation of civilian implementation of the Dayton Accords by making binding decisions, a power found only implicitly in Annex 10 of the Dayton Accords. [FN66] By May 2003, the High Representative had made several formal decisions, a number of them styled as "enacting the decision," or "enacting the law." [FN67]
Thus, the events in Bosnia reveal an international community only vaguely embracing the political trusteeship concept at the outset of its intervention. As a result, it had to gradually strengthen the powers of the trustee as stronger oversight of local institutions proved necessary to achieve the goals of the intervention. The effect was withdrawal of sovereignty from local institutions.
As noted in the introduction to this section, Kosovo represents the zenith of UN-sponsored political trusteeship.
UN Security Council Resolution 1244 ("S.C. Res. 1244") and subsequent implementing documents issued by the Secretary General of the United Nations established the UN Mission in Kosovo ("UNMIK"). [FN68] This intervention was internally legitimate because, in the eyes of the majority Albanian population, the Serb administration had a long history of impaired internal legitimacy. [FN69]S.C. Res. 1244 put the United Nations in the position, for the *402 first time, of exercising sovereignty and running a country. [FN70] Although this resolution recognized Yugoslav sovereignty, [FN71] the resolution vests in UNMIK the "basic civilian administrative functions where and as long as required." [FN72] This authority is to be transferred to "local provisional institutions," operating under UNMIK oversight [FN73] and eventually to institutions emerging from the final political agreement. [FN74]
Kosovo is the best example of a political trusteeship. UNMIK serves as the trustee, the beneficiaries are the people of Kosovo, and there is a reversionary interest in an entity to be defined in final status negotiations. UNMIK exercises most of the important attributes of sovereignty on behalf of the *403 people of Kosovo and is empowered to transfer these attributes to local governmental entities as they qualify to receive the powers. UNMIK ultimately must terminate the trusteeship. Upon termination, all power will devolve to institutions defined by the final-status political settlement.
c. East Timor
East Timor, like Kosovo, placed the UN in the position of actually serving as the political trustee. [FN75] In East Timor, sovereignty was held by the UN trustee, as local institutions were designed and developed. Sovereignty then devolved to those institutions in a series of steps, concluding with continued UN involvement to provide support to the new institutions.
In 1999, UN Security Council Resolution 1246 [FN76] authorized the establishment of the United Nations Mission in East Timor ("UNAMET") to oversee a transition period during which the East Timorese people could decide their status. [FN77] After continued violence, the government of Indonesia accepted assistance from the international community. UN Security Counsel Resolution 1264 ("S.C. Res. 1264") authorized a multinational force ("INTERFET") in order to "restore peace and security in East Timor, to protect and support UNAMET in carrying out its tasks, and, within force capabilities, to facilitate humanitarian assistance." [FN78] This resolution was followed by UN Security Council Resolution 1272 ("S.C. Res. 1272"), which established the United Nations Transitional Administration in East Timor ("UNTAET"). [FN79]
*404 Within two years, the newly elected constituent assembly and East Timorese Council of Ministers formed a "second transitional government," [FN80] which was also elected. This government then assumed responsibility to govern East Timor during the remaining transitional period. The constituent assembly then signed the new constitution and a president was elected. The president and the constituent assembly, which was transformed into a parliament, took over sovereign responsibility in May 2002.
In response, UN Security Council Resolution 1410 ("S.C. Res. 1410") created a revised UN mission, the UN Mission of Support in East Timor ("UNMISET"), to provide assistance to governmental administrative structures, interim law enforcement and public security, assistance in developing the East Timor police service, and otherwise to support the country's internal and external security. [FN81]
The East Timor experience illustrates a successful political trusteeship. The trustee exercised sovereignty for a limited period while organizing local government institutions. It then modified its mission to provide support once the local institutions took responsibility for the country's administration. [FN82]
Post-war arrangements in Afghanistan gave UN authorities less authority than in Kosovo and East Timor, but nevertheless exemplify a political trusteeship where the trustee responsibilities were divided between the UN and indigenous institutions. [FN83] The Bonn Agreement, negotiated by representatives *405 of Afghani interests and a representative of the UN Secretary-General, outlined the details of the trusteeship. [FN84] Pursuant to this agreement, the United Nations Security Council established the United Nations Assistance Mission in Afghanistan ("UNAMA") on March 28, 2002. [FN85] UNAMA was authorized to promote national reconciliation and to fulfill the responsibilities entrusted to the United Nations in the Bonn Agreement, including those related to human rights, the rule of law and gender issues. [FN86] UNAMA was also authorized to manage all UN humanitarian relief, recovery, and reconstruction activities in Afghanistan "in coordination with the Afghan Administration." [FN87]
The Bonn Agreement established an interim authority to be "the repository of Afghan sovereignty," [FN88] and called for an international security force to support it. [FN89] The interim administration is responsible for the day- to-day conduct of the affairs of state, and has the power "to issue decrees for the peace, order and good government of Afghanistan." [FN90] The interim authority *406[ FN91] is to be succeeded by a "transitional authority" established by an "emergency loya jirga" [FN92] to be convened by the former King of Afghanistan. [FN93] The emergency loya jirga is to decide on "a broad-based transitional administration" to lead Afghanistan until such time as a fully representative government can be elected through free and fair elections but no later than two years from the date of the convening of the emergency loya jirga. [FN94]
The Bonn Agreement further provides that a constitutional loya jirga is to be convened within 18 months after the establishment of the transitional authority. This loya jirga is to adopt a new constitution for Afghanistan based on work by a constitutional commission established by the transitional administration. [FN95] In Afghanistan, the role of the UN is limited. The Special Representative of the Secretary General:
[S]hall monitor and assist in the implementation of the Bonn Agreement [FN96] . . . and shall advise the interim authority in establishing a politically neutral environment conducive to the holding of the emergency loya jirga and free and fair conditions. The United Nations shall pay special attention to the conduct of those bodies and administrative departments *407 which could directly influence the convening and outcome of the emergency loya jirga. [FN97]
The transitional administration began work in June 2002, [FN98] beset with an inability to extend its authority throughout the country and continued security problems. [FN99] Work was progressing toward adoption of a new constitution in late 2003, [FN100] intended to be followed by national elections in June 2004. [FN101]
Afghanistan is the first recent political trusteeship imposed without the consent of the original sovereign institutions. Instead, the previous sovereign was deposed by military force, with subsequent UN approval. This situation has led to a badly fragmented trusteeship, which divided authority among U.S. military forces, a multilateral security force, the UN mission, and a range of interim local governmental institutions.
Political trusteeship in Iraq is a work in progress, beset with security problems and diplomatic controversy animated by broad opposition to the unilateral U.S. decision to invade. Regardless of this controversy, there is consensus that the purpose of post-war administration is to prepare the Iraqi people for self-governance, the central feature of political trusteeship. However, the institutional mechanisms for pursuing eventual self-governance are in a state of flux.
*408 On May 22, 2003, after U.S. and British forces subdued Iraqi military resistance, the UN Security Council adopted Resolution 1483 ("S.C. Res. 1483"). [FN102] While embracing self-determination for Iraq, [FN103] the Resolution recognized the role of the U.S. and Great Britain as occupying powers. [FN104] It left no doubt that the occupying authorities were to play the role of political trustees:
[The UN] [c]alls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future . . . . [FN105]
The Resolution also
[S]upport[ed] the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority. [FN106]
The Resolution further authorized appointment by the Secretary-General of a "Special Representative" to coordinate UN, international-agency and Authority activities in Iraq, and to support the development of local governmental institutions. [FN107]
*409 In October 2003, the Security Council adopted UN Security Council Resolution 1510 (S.C. Res. 1510) [FN108] which declares that Iraqi sovereignty resides in Iraqi institutions [FN109] and urges the presiding Coalition Provisional Authority, the civil administration established by the occupying powers, to devolve power to local institutions as soon as practicable. [FN110] It also provided for a strengthened UN role in supporting local institutions without suggesting any power to make governmental decisions. [FN111] Under the Resolution, the local institutions are responsible for designing and implementing a process to write a constitution and hold national elections supported by the UN. [FN112]
*410 The intervention in Iraq exemplifies a political trusteeship in that it recognized a duty to develop eventual self-governance and to govern for the benefit of the Iraqi people. However, it does not clearly vest international institutions with decision-making responsibility thereby leaving sovereignty in local institutions with untested capacity and uncertain internal legitimacy.
B. Why the Political Trusteeship Model Provides Greater Legitimacy for Intervention than Other Models
Before the League of Nations and the United Nations were established, historical models such as conquest, belligerent occupation, protectorates, condominia, and peacekeeping were the only mechanisms for foreign administration of a territory. The political trusteeship concept provides a better model for intervention than these earlier models because it evolved from the League of Nations mandate system and the UN trusteeship system, both of which no longer have formal operative significance. Moreover, the erosion of legitimacy for conquest, limitations imposed on belligerent occupation by international law, and temporal limitations inherent in trustee occupation, present significant limitations for securing international legitimacy for military occupation.
1. Military Occupation
Historically, military occupation was the usual pathway to foreign administration of a territory. Whether conquest, belligerent occupation, or trustee occupation, [FN113] military occupation grants the occupant the attributes of sovereignty. However, depending on the type of occupation, this sovereignty includes various limitations. Unlike political trusteeship, it does not impose any duties to pursue eventual self-government or independence.
The cases of Afghanistan and Iraq demonstrate the possible continued viability of the customary international law of military occupation. The Security Council resolution pertaining to Iraq "recogniz[es] the specific authorities, responsibilities, and obligations under applicable international law of [the] occupying powers." [FN114] Moreover, reference to the customary international *411 law of military occupation is necessary to link the textual power of the UN Security Council to the oft-assumed power of the Security Council to establish a political trusteeship. [FN115] However, the doctrine of military occupation provides only an incomplete justification for the power arrangements in these recent interventions.
Erosion of legitimacy for conquest, limitations imposed on belligerent occupation by international law, and temporal limitations inherent in trustee occupation, have represented the most important trends in reshaping and narrowing the international legitimacy for these models during the last century and a half. Hence, the failure of these models as insufficient intellectual and legal frameworks to guide international intervention and administration invites acceptance of the political trusteeship concept.
Conquest is the occupation of territory subsequent to complete surrender by the reigning party and its allies. Conquest differs from other forms of occupation because the previous government lacks the capacity to reestablish itself. Conquest allows plenary administration by the conquering power, but imposes no obligations for the benefit of the conquered population and involves no expectation of eventual independence and self-government. International law does not impose significant limits on changes by the occupant to the local fundamental laws and institutions. "Because reversion of control to the defeated government is not realistically possible, reasons that might otherwise exist for preserving the laws and institutions of the ousted power to further settlement possibilities lose all vitality." [FN116]
Until the League of Nations mandate system, conquest was both the most frequent and most legitimate [FN117] basis for control of one state by another. However, conquest is irrelevant to the interventions in Bosnia, Kosovo, and East Timor because they occurred with the consent of the original sovereign. The principles of conquest do explain the starting point for the *412 Afghanistan and Iraq interventions, but they fail to offer any guidance as to the purpose or institutional structure of civil administration.
b. Belligerent Occupation
It is erroneous to confuse conquest with belligerent occupation. [FN118] Belligerent occupation is effective military control over certain areas "although the enemy has not surrendered and continues to retain control over substantial portions of his territory." [FN119] A belligerent occupant must assume governmental functions at least to the extent of protecting the occupant's forces and addressing the health and humanitarian needs of the population, but is supposed to minimize any changes to local fundamental laws and institutions. [FN120] This legal requirement derives from the principle that the ousted power retains sovereignty, "albeit in a state of abeyance," over the held territory. [FN121]
In 1949 the international community codified the law of belligerent occupancy in the Fourth Geneva Convention, [FN122] which drew heavily on the *413 Hague Regulations promulgated at the turn of the century. [FN123] The Hague Regulations were pragmatic in scope and extended to occupied territory actually placed under the authority of a hostile army. [FN124] The Geneva Convention applies to declared war, armed conflict, and cases of "partial or total occupation of the territory of a contracting party even if the said occupation meets with no armed resistance." [FN125] The convention ceases to apply "on the general close of military operations," but "in the case of occupied territory, the application of the present conventions shall cease one year after the general close of military occupations." [FN126]
For the duration of the occupation, the occupying power is bound by such provisions as Article 47, which limits changes to institutions and government of occupied territory that deprives protected persons of benefits of the Geneva Convention, and Articles 61-77, which limit changes to penal law and procedure. [FN127] In pragmatic terms, the governing rule for belligerent occupation is that if a change is not absolutely necessary to protect the security and viability of the occupation, and it would be difficult to undo if the previous sovereign returns, then the change is prohibited. Conversely, if a change in the status quo is necessary to protect the immediate interests of the population of the occupied territory, then it is permissible even though the returning sovereign may have difficulty undoing it. [FN128]
*414 Given the precarious underpinning of the law of belligerent occupation, one should distinguish between belligerent occupation and de facto, temporary sovereignty. The occupation of Germany after World War II is a good example of an intervention based on conquest and leading to the exercise of de facto temporary sovereignty rather than belligerent occupation. [FN129] Similarly, as occupying powers in Iraq, the United States and Great Britain have broader authority than belligerent occupants, because there is no pre- existing regime to reclaim the power currently possessed by the occupants.
Belligerent occupation is insufficient to explain recent instances of international administration. In Kosovo, for example, paragraph 11 of S.C. Res. 1244 negates belligerent occupant duties to the reversioner. The rights and duties associated with the reversionary interest, if any, will be decided in the political settlement contemplated by S.C. Res. 1244. In the meantime, it is not necessary to know the nature of the reversionary interest in order to understand the powers and duties of the trustee. In Kosovo, as in most political trusteeships, the identity of the reversioner upon termination is an open question, but one which the trustee has a duty to resolve, much like when a court holds property in trust until it can determine the property's rightful owner, or when a common-law trustee enjoys a power of appointment. [FN130] An international political trustee, however, has a duty to develop capacity of a potential reversioner by building internal legitimacy.
Unlike a belligerent occupant, a trustee has the power to transfer trust property, even when a transfer cuts off reversionary interests, as long as the trustee exercises the power consistently with the terms of the trust and its purpose.
c. Trustee Occupant
The trustee occupant idea, developed by Allan Gerson to explain Israel's occupation of the West Bank after the "Six-Day War" of 1967, [FN131] is *415 an intellectual bridge from the belligerent occupant idea to the political trusteeship idea. [FN132]
The distinction between trustee occupant and belligerent occupant is that unlike a belligerent occupant, a trustee occupant confronts no likelihood that the predecessor power will regain control. Whereas a belligerent occupant is barred from implementing any changes in the existing laws or institutions providing such amendments are in the best interest of the inhabitants, the trustee occupant may govern without such categorical restrictions. The trustee occupant has this power since the raison d'κtre for requiring adherence to the status quo ante, preservation of the ousted legitimate sovereign's reversionary interest, would no longer be relevant. [FN133]
However, the goals of trustee occupancy distinguish it from conquest. The trustee-occupant must pursue strategies devised to facilitate the achievement of its goals, namely self-determination and independent economic growth. The policies of the ousted power that retains an expectation of reversion are no longer the paramount consideration. Nor is the economic welfare of the trustee the dominant consideration.
The boundaries of trustee-occupancy are unclear, and the doctrine has not been widely embraced as a distinct form of occupation. [FN134] Political trusteeship is a more robust guide for structuring international intervention because its contours can be more precisely delineated and it matches the major features of recent interventions.
2. Invited Interventions
Military invasion was not the only precursor to full or partial foreign political control. In many cases, existing sovereigns invite international intervention through protectorates, condominia, or in a peacekeeping role. *416 These models are less complete than political trusteeship because they depend on consent by the pre-existing sovereign, and they do not envision exercise of sovereignty with respect to internal governance.
A protectorate is a special status, usually established by treaty, in which certain attributes of sovereignty are delegated to the protecting state. [FN135] The international legitimacy of protectorates is assured when the protected power consents to the protectorate, thus removing any conflict between the protectorate and the pre-existing sovereign.
Before the League of Nations was established, protectorates were creatures of treaty, mostly bilateral treaties between the protectee and the protector, [FN136] with an interpretative overlay from customary international law. [FN137]
Most commentators, and the dictionary definition of protectorate, consider that the protecting state leaves plenary power over domestic affairs with the protected state. Thus defined, the protectorate is insufficient as a concept for shaping modern political trusteeship, where the overriding goals usually include transformation of the domestic indigenous political institutions to facilitate *417 democratic self-government, while building a sustainable economy and a domestic political culture that protects the human rights of that state's citizens, implemented and carried out in ways that do not threaten other states. Transforming the indigenous political institutions and political culture means that a political trustee must have power over domestic policy as well as over the international relations of the protected state. Simply holding power over a state's international affairs without corresponding control over its domestic affairs is not likely to effect the long-term changes in the domestic political culture of the protected state that is usually the goal of a UN intervention.
Condominium refers to the joint control of a territory by foreign powers. It relies on other doctrines, such as occupation or protectorate to define the allocation of sovereignty between the foreign and domestic institutions.
Use of the term "condominium" in international law signifies its relationship to concepts of joint, undivided property ownership in private law. [FN138] The term began to be used in international law in the 17th century when "sovereignty and ownership were still mixed." [FN139] International law authorities, though differing in details, agree that the condominium envisions the joint exercise of sovereignty over a single piece of territory, often arising when two sovereigns cannot agree on the boundary between two territories which each controls alone. [FN140]
It is also generally agreed that condominia, unlike states under protectorates, are not international legal personalities. Instead, the participants in the condominium are. [FN141] From 1878 to 1908, Bosnia was under an "unequal condominium" of Austria-Hungary and the Ottoman Empire. [FN142] A collective protectorate left sovereignty in the territorial institutions while entirely subordinating its exercise to the state participants in the protectorate. [FN143] Parties to condominia can act only through the collective intermediate organs created by the condominia. They cannot exercise their own sovereignty directly in the condominium territory, because that would prejudice the position of other members of the condominium and would be inconsistent with the idea of *418 joint administration. [FN144] Sovereignty resides at the condominium level, but various structures for delegating that authority to local institutions and officials are possible. [FN145]
Condominium is a useful concept to explain shared control, as in Germany after 1945, [FN146] and as a framework for understanding the role of the United States and other participants constituting the Occupying Authorities in Iraq. [FN147]
However, condominium is an insufficient conceptual model for both the present and the future. Unlike the political trusteeship concept, it does not clearly acknowledge the administering power's obligations to the local population. Nor does it necessarily envision preparation for eventual self-government and independence.
From the end of the UN trusteeship system until the dissolution of Yugoslavia, international intervention was consistently justified on the grounds that contending states had invited the international community to play a peacekeeping role. Peacekeeping did not imply any erosion of local sovereignty. It focused almost entirely on providing security rather than on local governance.
The peacekeeping-consent idea does not work when one considers the cases of Bosnia, Kosovo, East Timor, Afghanistan, and Iraq. Even when preexisting states ostensibly consented to international involvement, this consent usually was compelled by military action. Moreover, the international community in these cases played far more than a peacekeeping role; it actually exercised sovereignty.
Merely accepting the idea of political trusteeship as a conceptual framework for international intervention is not enough; the international community *419 also must know how to organize successful political trusteeships. This part of the article offers prescriptions for success, based on an analysis of the experience in Bosnia, Kosovo, East Timor, Afghanistan, and Iraq, and on the author's personal experience in helping to build legal, political, and economic institutions in Bosnia and Kosovo. [FN148]
First, a successful political trusteeship must be defined clearly so that adequate authority and accountability exist for effective decision-making. This requires clearly defining where sovereignty resides, avoiding archaic theoretical limitations on the exercise of power by the trustee and tying civil administration to military security forces.
Second, a successful political trusteeship must build both international and internal legitimacy. While one type of legitimacy might advance the other, sometimes the reverse can hold true. The challenge is to find a formula of political stewardship that maximizes both.
Third, a successful political trusteeship must develop institutions of a liberal democracy. This requires designing institutions that manage internal political competition but also draw on unique local experiences, recruiting leadership elites from without and within the trust territory, defining and implementing strategies for economic development, and controlling corruption without letting the issue dominate the agenda.
Finally, successful political trusteeships must announce and follow an exit strategy by clearly defining triggers for devolving power to local institutions, thereby mitigating the inevitable tendency of post-war euphoria to turn into resentment of the trustee.
These four criteria are undeniably interrelated. For example, a clearly defined trusteeship increases the capacity to build internal legitimacy, to foster liberal democracy and to pursue a coherent exit strategy. Legitimacy is *420 increased by successes achieved in working toward a liberal democracy. The pursuit of an appropriate exit strategy can increase internal legitimacy and help to build the institutions of a liberal democracy by increasing incentives for local political actors to invest themselves knowing that they will become the political elite upon the trustee's exit.
A. Define the Trusteeship Clearly
A clear definition of the political trusteeship is necessary because pursuing all the criteria of its success requires unquestionable authority and accountability. Ambiguity as to who holds the power to establish new institutions, to reform existing law, to schedule and supervise elections, and to define an exit strategy leads to paralysis rather than progress.
The instruments defining any political trusteeship, such as UN resolutions, treaties or constitutions, must unambiguously vest sovereignty in the trustee; they must avoid limiting the trustee's powers by archaic reference to concepts such as belligerent occupancy or peacekeeping. Furthermore, they must provide effective linkages between the institutions of civil administration and military security forces.
1. Clearly Define Where Sovereignty Resides
Recent interventions have suffered from ambiguity about where sovereignty resides as a result of borrowing from the peacekeeping model of retaining sovereignty in local institutions.
Until the dissolution of Yugoslavia in 1991, two contrasting approaches to the vesting of sovereignty predominated throughout the 20th century. One, as exemplified by the League of Nations mandate system and the UN trust system, placed sovereignty in the international community or in one or more states acting on behalf of the international community. The legal holder of sovereignty held it in trust to be exercised for the benefit of the indigenous population, with the expectation (in the case of the UN trust territories and of Class A mandates) that sovereignty eventually would be transferred to local institutions. This transfer would terminate the trust. [FN149] The other approach, best exemplified by peacekeeping operations, did not place sovereignty in the intervener. Instead, it retained sovereignty in the local institutions that had invited the peacekeeping assistance. Under this model, the invitation was always revocable. A sovereign could transfer all of its *421 sovereignty or any of its powers irrevocably to another for a period of time or until certain conditions existed, in which case the sovereign would surrender the power to terminate the peacekeeping operation before the stated time or condition subsequent had been satisfied.
The Bosnian trusteeship illustrates the difficulties that arise from blurring these two models. Initially, the Dayton Accords failed unambiguously to vest sovereignty in the UN or another international organization as trustee. Instead, they operated under the peacekeeping model. As Part I.A.5.a explains, sovereignty was initially vested in local institutions with little legal power explicitly reserved to the international community. Over time, this arrangement proved unworkable. The UN initially was perceived as lacking powers such as final authority to make decisions about basic government services, security forces, policies affecting human rights, and economic development. The local political institutions were not yet effective enough to make those decisions. As a result, the international community had to stretch its interpretation of the Dayton Accords to give the UN High Representative what amounted to final governmental authority. Learning from its experience in Bosnia, the international community made clear from the outset in both Kosovo and East Timor that it would exercise sovereignty through the UN as trustee.
Yet the interventions in Afghanistan and Iraq exhibit a return to ad hoc nebulous arrangements. In Afghanistan, sovereignty apparently resides in indigenous but interim institutions designed and staffed as a part of the Bonn negotiations. [FN150] The UN plays only a vague supporting role. In the early days of the intervention in Iraq, the U.S. demonstrated a single-minded adherence to the precept of unity of command, unwilling to relinquish sovereignty either to the UN or to local institutions. Ironically, this effort may have lessened the trustee's actual sovereignty by undermining legitimacy and provoking armed resistance.
These experiences suggest that in those cases where substantial international intervention is needed to redesign political structures, sovereignty must be clearly placed with the intervener, but only temporarily, so as to maximize the effectiveness of the political trusteeship.
2. Avoid Archaic Limitations on the Exercise of Sovereignty
Sovereignty, once clearly given to the trustee, must be complete. It requires plenary authority to change political and economic institutions, alter property regimes, enact legislation, enforce civil and criminal law, regulate commerce, tax and spend, and represent the peoples' trust in international *422 relations. Sovereignty should not be limited by notions of belligerent occupancy or peacekeeping.
Kosovo is one example where reconstruction, especially in the economic realm, was seriously impeded by limits on sovereignty. Despite clarity in S.C. Res. 1244 about UNMIK's responsibility for temporarily exercising sovereignty, some senior UN lawyers asserted that although UNMIK was a political trustee, it was subject to the limitations of a belligerent occupant. Therefore, it was empowered to make only those changes absolutely necessary to meet the basic needs of the indigenous population and to protect the security of international forces. This archaic limitation delayed the start of privatization of socialist enterprises for two years, also tying up property necessary for new enterprise formation because socialist enterprises controlled much of the more desirable real estate. Eventually the legal advisers were persuaded that belligerent occupancy was too limited a model for UNMIK's mission.
The sovereignty of the trustee should not be hemmed in by belligerent occupancy or other intervention models because such models do not accord with circumstances in recent interventions. Specifically, belligerent occupancy assumes that: (1) the military and political situation is precarious and that the previous sovereign may regain physical control of the territory at any time; and (2) limitations on sovereignty are necessary to prevent the occupant from pursuing its own interests at the expense of the local population. Neither of these conditions has been present in the interventions in Bosnia, Kosovo, East Timor, Afghanistan, and Iraq. With the possible exception of Kosovo, there is no expectation in any of these cases that a previous sovereign will return. In Kosovo, the explicit provision for a final status implies that whatever Serbian sovereignty existed before the intervention will be modified substantially. Rather, the expressed intention of the intervening powers is to govern temporarily for the benefit of the population.
Complete sovereignty in the hands of the intervener does not alter the fact that the intervener is still the trustee, and ultimately accountable to the beneficiaries of the trust. This obligation means that the trustee needs to be able to articulate and justify how the changes it makes in preexisting institutions or laws will benefit the population. As Part II.B.2.c suggests, mechanisms for judicial review can assist the trustee, but if the trustee cannot do this, it may find itself confronted by powerful external and internal political forces.
*423 3. Tie Civil Administration to Military Security Forces
The civil administration of political trusteeships must be linked closely to command of military or other security forces. Otherwise, the political trustee may be unable to operate because of poor physical security in certain areas, as in Afghanistan, or may lack the "muscle" to enforce its decisions.
Experiences in Bosnia demonstrate how a tenuous link between civil administration and command of military forces compromised the effectiveness of the political trusteeship. The ineffectiveness of UN control over the military during the Bosnian war [FN151] prompted a separation between UN civil administration and military control. [FN152] This separation has created a military that is both too timid and lacks the will to arrest top war criminals. These institutional infirmities not only undermine the human rights goals of the civilian trustee but also generally undercut its credibility.
The mistake of divided command is being repeated in Afghanistan. In Afghanistan, success in civil administration is jeopardized by lack of physical security, due at least in part to poor coordination between the military and civilian administrations. Although Security Council Resolution 1386 ("S.C. Res. 1386"), authorizing an International Security Force in Afghanistan to "assist" the UN mission, provided for the International Security Assistance Force to "work in close consultation with the Afghan Interim Authority in the implementation of the force mandate, as well as with the Special Representative of the Secretary-General," [FN153] the United States military presence operates independently. There are thus four independent decision makers with respect to security: the Interim Authority, the UN Special Representative, the commander of the International Security Force, and the commander of U.S. forces.
In Iraq it is still unclear how well coordination is working. Security continues to be a serious problem, undermining the ability of the civil administration to pursue its goals effectively, although the civilian administrator *424 initially reported through the same chain of command as the military commander and ultimately to the U.S. Secretary of Defense.
East Timor and Kosovo provide examples of better coordination. In East Timor, S.C. Res. 1272 made the military force a part of the UN mission. [FN154] In Kosovo, S.C. Res. 1244 distinguishes the security presence and the civil administration, but machinery has been developed to assure close coordination. [FN155] In addition, in Kosovo the deployment of the Italian Carabinieri and the French Gendarmerie units provides a well-trained security force directly under the control of the political trustee. [FN156]
These experiences illustrate why it is essential that the detailed specifications for the exercise of authority in any political trusteeship include a formal mechanism for coordinating between the civil authority and regular military forces.
B. Build Both International and Internal Legitimacy
Political trusteeships can be successful only if they are internationally and internally legitimate. International legitimacy is necessary so that a critical mass of the international community will recognize and protect the trustee and its successors. Without international legitimacy, the trustee will likely lack necessary resources, and may face state-sponsored resistance. Internal legitimacy is necessary so that the population will not, to borrow Gandhi's term, "withdraw its support" from the government. [FN157] Without internal legitimacy, the trustee will be unable to make progress toward eventual termination of the trust, and may be unable to establish minimal internal security.
Lawyers, philosophers and social scientists recognize two different kinds of legitimacy: objective legitimacy and subjective legitimacy. Most *425 lawyers would accept the dictionary definition of legitimacy, "the quality or state of being legitimate; legitimate: sanctioned by law or custom; lawful . . .; conforming to or in accordance with established rules, standards or principles." [FN158] This is an objective concept, presupposing some universal set of norms against which legitimacy can be judged. [FN159] For ease of exposition, this can be called objective legitimacy.
Nigel Purvis builds on Max Weber's social theory of obligation to offer a competing definition: "perception of a rule as legitimate by those to whom it is addressed . . ., secured--to whatever degree it is--by the internal coercion of sovereign psychology . . . ." [FN160] For ease in exposition, this can be called perceived legitimacy or subjective legitimacy.
International legitimacy is mainly a question of objective legitimacy, with international law providing the criteria according to which legitimacy is measured. Internal legitimacy is mainly a question of subjective legitimacy, with criteria arising from a complex interplay of governmental effectiveness, local and international law, democratic elections, ideology, and "manipulation of cultural language, symbols, and history." [FN161]
Modern criteria for international and internal legitimacy overlap, but factors that improve legitimacy in the eyes of one audience do not always improve it in the eyes of the other. Bases for legitimacy include: avoidance of threats to world peace and security; democratic elections; compliance with universal morality; effectiveness in maintaining public order, delivering social services and providing pathways for pursuit of individual aspirations; personal charisma; ability to bring or to maintain peace among contending internal factions; personal and group pride; ideology; and tribal or other traditional custom. The factors at the head of the list tend to have more legitimating power internationally; those at the tail tend to have more legitimating power internally. Two examples of where internal and international legitimacy may be negatively correlated are when a political trustee suppresses ethnic nationalism and diminishes the power of existing political and *426 economic elites in order to build liberal democracy and a market economy, and when a trustee unilaterally supplants local norms, institutions and practices that violate international human rights concepts. In both of these situations, international legitimacy is pursued at the expense of internal legitimacy.
The challenge is to make these factors converge, or at least to ensure that they do not diverge. [FN162] Otherwise, the international community is likely to intervene according to criteria that make the intervention illegitimate, causing it to install a regime that has less internal legitimacy than the one that went before it. Conversely, practical local politicians may build domestic legitimacy at the expense of international legitimacy. [FN163]
The quest for convergence is facilitated by understanding that international legitimacy is, at least in part, a legal concept. By contrast, internal legitimacy is almost entirely a political phenomenon. A good international lawyer can explore and predict the former. Only someone who understands the dynamics of politics in the target country can predict the latter, and then with no more reliability than attends predictions of the outcome of American political campaigns.
1. Build International Legitimacy
International legitimacy is crucial to secure needed military, human, and financial resources from multiple nations to support the trusteeship [FN164] as well as to avoid state-sponsored resistance against the trusteeship. [FN165]
International legitimacy hinges on the degree to which the international audience accepts both the motives for and method of an intervention. The last two centuries have witnessed significant change in the measurement of *427 international legitimacy, both in terms of which motives and methods are acceptable as well as who comprises the audience. Today, acceptable motives for and methods of intervention have been substantially narrowed by principles of international law such as respect for sovereignty and self-determination. [FN166] Conversely, the international audience, once consisting solely of heads of state, has broadened to include NGOs, opinion leaders, and the general public of different states, particularly those of the intervening state or states. [FN167]
Accordingly, international legitimacy is now largely determined by the extent to which the trustee can convince the international public that its actions *428 are consistent with international law. [FN168] This requires an appreciation for the evolving set of norms in international law, the ability to reconcile sovereignty with self-determination, and the ability to either garner consent for the intervention by the territory over which control is assumed or secure UN approval for the intervention.
A number of other factors increase international legitimacy. Foremost among them are whether the trusteeship is able to remove widely perceived threats to international peace and security, whether it supports self-determination through popular elections, whether it enforces or protects human rights, whether it demonstrates governmental effectiveness, whether it is imbued with charismatic leadership, and whether it successfully brings an end to national- stage conflict.
International law, like all law, is ultimately a formal expression of the norms separating legitimate from illegitimate conduct. While different schools of thought in international relations may disagree over the extent to which states follow international law, [FN169] it is undeniable that the invocation *429 of international law is a powerful rhetorical and political tool. [FN170] In particular, the more widely accepted and firm the "rule" of international law, the more effective its invocation in winning support from an audience.
(1) Understand that International Law Operates Within an Evolving Set of Norms
Over the last 150 years international law has evolved from a legitimation of the axiom "might makes right" [FN171] to its current state, wherein the legitimate bases for the use of armed force to acquire or to maintain control over the territory of another state are sharply circumscribed. [FN172] Until the end of the 19th century, the international legal standards for taking over territory were not demanding. The legitimacy of conquest might depend on the lawfulness *430 of starting the war leading to the conquest, but many reasons for going to war (jus ad bellum) [FN173] were recognized as legitimate. However, by the end of the 19th century, two intellectual movements reshaped international law, and hence the criteria for international legitimacy of political trusteeships.
The first was a broad peace movement, reacting to the astounding number of casualties in 19th century wars. [FN174] After the turn of the century, this movement culminated in European treaties, the League of Nations, the Kellogg-Briand Pact, and the UN. Pragmatic considerations influenced the peace movement. Wars in the Westphalian state-based system of international relations were less likely when sovereignty was paramount. Under the notion of sovereignty, one state should not interfere in the internal affairs of another. Collective security could also reduce the likelihood of arms races that might lead to war.
The second movement was a human rights movement, focused on self- determination. It began with the anti-slavery movement, broadened into anti- colonialism, and shaped the League of Nations mandate system and the UN trusteeship system.
Together, these movements have produced the current system of international law and international relations. This system has been codified in both the UN Charter and human rights treaties and supplemented by customary international law, which sharply limits legitimate grounds for intervention by one state or a group of states into the affairs of another. Specifically, international law legitimates intervention only to the extent such intervention removes threats to international peace and security, builds indigenous capacity for self- government, fosters economic sustainability, enforces or protects human rights, [FN175] and conditions the territory for responsible participation in the international system. Of the models of intervention discussed in Part I.B, political trusteeship is the only one that can supply international legitimacy in accordance with international law.
*431 Even though the political trusteeship model resonates with modern international legal principles for intervention, these principles constitute a rigorous standard to be met. Not only must a successful political trusteeship be initiated for the proper reasons, carried out by the proper means, and aimed at the proper ends, but numerous and diverse audiences around the world and in the trustee state itself must be convinced that these goals are being achieved. This requires nothing less than a mastery of the interplay between international law and domestic and international politics.
It may be that the interventions of the late 20th and early 21st centuries (Bosnia, Kosovo, East Timor, Afghanistan, and Iraq) bespeak a relaxation in the international standards for intervention. These instances of intervention have all been marked by reduced concern for sovereignty, increased legitimacy of intervention based on human rights and self-determination, and an increasing role for unilateral perceptions of national interest. If this is the case, it represents an inflection point in the oscillation of standards for international legitimacy, as the standards become less demanding again. In any event, intervening state conduct in Bosnia, Kosovo, East Timor, Afghanistan, and Iraq accompanied by opinio juris [FN176] is now part of the content of customary international law. Because there is no international legislature, the only source of "amendments" to international law is changing state practice and attitudes.
(2) Reconcile Principles of Sovereignty and Self-determination
Two concepts enshrined in international law are sovereignty and self- determination. [FN177] Yet these two principles often collide, [FN178] as in the former Yugoslavia and East Timor. In both cases, international intervention was required to reconcile the clash between the people within the territory exercising *432 self-determination by calling for an independent state, and the sovereignty and integrity of the existing parent state.
In order for a political trusteeship to abide by international law, it must end the conflict between sovereignty and self-determination without giving short shrift to either of the two principles. The political trusteeship must accurately ascertain the will of the local population and whether they want to form their own state. If the population desires to form a separate state, the trusteeship must then determine whether statehood is feasible and if so, prepare the population and territory for legitimate statehood under international law.
International law provides various criteria for ascertaining statehood. The Restatement (Third) provides that "[u]nder international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities." [FN179] However, commentators and practitioners have not come to any clear agreement about what constitutes a state. [FN180] Thomas Grant, for example, expresses doubts about the utility of codifying statehood, [FN181] but he suggests eight criteria that a body drafting a new international convention on statehood "might debate." They are:
2. Claim to statehood;
3. Popular process as the source of claim to statehood;
4. External legality based on disclaiming territorial ambitions against neighbors and reaffirming disarmament commitments;
5. Internal legality, focused on democracy and minority rights;
6. "Organic bonds within the community claiming statehood," relating to common historical, cultural, religious, or ethnic ties;
7. UN membership;
*433 8. Recognition. [FN182]
In addition, the horizontal character of the international legal system means that other states decide when to "admit" a new state to "membership" in the international community of states. Aside from granting recognition on a case by case basis, the community of states also can lay down rules in treaties or in customary international law that automatically confer statehood when certain requirements are met. [FN183]
The recognition of Slovenia, Croatia, and Bosnia circumvented efforts to define criteria for statehood and recognition for all three potential states. That is, Slovenia, Croatia, and Bosnia were recognized as states before formal efforts to define criteria for their recognition were finished. In late 1991 during an extraordinary ministerial meeting, the European Community adopted a set of guidelines for recognizing parts of the former Yugoslavia. Among other things, the guidelines required a functioning democracy and a constitutional provision for the protection of minorities. [FN184] Shortly thereafter, an arbitration commission attached to the Conference for Peace in Yugoslavia (known as the Carrington Commission) issued its Opinion 4, [FN185] opining that Bosnia met most requirements of statehood but that two difficulties foreclosed recognition. First, the Serb communities in Bosnia had not participated in the declarations of independence and sovereignty, and second, although the constitution of Bosnia required popular sovereignty to be exercised either through a representative assembly or through a referendum, the declarations had been made only in the name of the presidency and the government of Bosnia. [FN186]
The extensive and varied debate surrounding statehood suggests that the legal requirements for statehood reach much deeper than the four simple requirements provided in the Third Restatement. Statehood ultimately requires a degree of international and internal legitimacy on the part of the territory seeking to become a state.
This is where a political trusteeship can be most successful in shepherding a prospective state. Political trusteeships are ideally-suited to bring both *434 international and internal legitimacy to a territory's expression of self-determination. This is because the idea of political trusteeship draws from a strong tradition within international political and legal history of "intermediate" or "transitional" sovereignty. [FN187] It recognizes sovereignty not as something either completely enjoyed or completely denied, but as something that can be grown or expanded and achieved.
(3) Seek Consent or UN Approval
The optimal method for a trusteeship to comply with international law and bolster its international legitimacy is to gain the consent of the territory to be administered or the approval of the UN Security Council.
The first three of the five post-Cold War political trusteeships were legitimated by consent of the state or states previously exercising sovereignty. [FN188] At the time of the political trusteeship in Bosnia, there was already a strong argument that Bosnia had acquired statehood under the traditional definition of sovereignty in customary international law. [FN189] However, the consent expressed by the signatories to the Dayton Accords, including Bosnia and Serbia, legitimated the political trusteeship. [FN190] The political trusteeship in Kosovo was also established in a straightforward legal manner. Serbia consented to the substance of S.C. Res. 1244. The Kosovars had declared independence in the mid 1990s, but no other prerequisites for statehood had been satisfied. The East Timorese did not decide on independence until after the UN had been granted the status of political trustee, but in this case Indonesia and the Netherlands consented to UN involvement and the exercise of sovereignty by the UN during a transitional period.
In these three cases, the legitimating effect of consent was supplemented by Security Council findings of threats to international peace and security, thus satisfying the prerequisites for exercise of the Security Council's broadly defined authority under Chapters VI and VII of the UN Charter.
*435 In Afghanistan and Iraq, the regimes ultimately displaced by military force did not consent to political trusteeship. Neither the Taliban nor Saddam Hussein either surrendered or consented to give up sovereignty. Accordingly, UN approval became crucial for ensuring compliance with international law. The UN's authority to approve a political trusteeship is implicit in its authority to authorize action to avoid threats to international peace and security. [FN191] Chapter VII of the UN Charter gives the Security Council authority to determine if a threat to international peace and security exists, [FN192] and, once it finds such a threat to exist, to determine what means, up to and including the use of military force, shall be used to contain or remove the threat. [FN193]
Two things are important to keep in mind regarding UN approval. First, the timing of the approval matters. While there are respectable arguments that an unconsented-to trusteeship is not fully legitimate without the approval of the UN, there is no support in state practice for the proposition that the UN must approve intervention leading up to the trusteeship or that it must be the venue for negotiation of the trusteeship. Therefore, an intervention for the purpose of trusteeship must take the need for UN approval into account but need not make approval a prerequisite where circumstances call for prompt intervention.
Second, UN approval must not be confused with UN operational control of either the armed intervention or the resulting trusteeship. The UN has played a central role in political trusteeships only in Kosovo and East Timor. In each of these situations the UN was explicitly designated as the trustee. [FN194] In Kosovo, the UN acted as trustee only because the party that undertook the military initiative, NATO, agreed to let the UN do so. This agreement was a compromise in order to secure Russian approval of a post-war NATO presence. [FN195] In all the other cases, the UN has played a less assertive role by overseeing, coordinating, monitoring, and advising with respect to the plans of other actors, rather than executing or administering. [FN196] In Afghanistan and *436 Iraq, the UN has approved trusteeships administered by indigenous institutions and collections of states, reserving only a limited role for itself.
In summation, respect for international law is an important measure of international legitimacy. By understanding the changing nature of international law, balancing self-determination and sovereignty, and gaining support for interventions via either territorial consent or UN approval, a political trusteeship can greatly increase its international legitimacy. However, there are a number of other factors that can strengthen a political trusteeship's international legitimacy.
b. Remove Threats to International Peace and Security.
International legitimacy is improved when the public views a political trusteeship as necessary to remove threats to international peace and security. International law codified in the UN Charter explicitly recognizes the UN Security Council's power to recognize and intervene against a threat to international peace and security. [FN197] Such a threat can arise from a state's development, possession or threatened use of weapons of mass destruction, support of terrorism, actual aggression, [FN198] abuse of human rights, [FN199] or obstruction of the international economic system. [FN200]
The current political trusteeship in Afghanistan is an example of the type of threat to international peace and security which legitimates international intervention. In reaction to the September 11, 2001 terrorist attacks in the United States, the UN Security Council recognized that manifestations of international terrorism based in Afghanistan threatened international peace and security. [FN201]
*437 c. Hold Democratic Elections
Democratic elections may also generate international legitimacy. [FN202] Whether they do so depends on the extent to which they further self- determination, [FN203] foster liberal democracy, [FN204] and protect human rights. [FN205]
The connection between democratic elections and liberal democracy is delicate. Democratic elections are a hallmark of liberal democracy and can have spillover effects, helping to generate democratic institutions. However, if the trustee rushes to hold democratic elections before democratic institutions have been adequately developed, growth of liberal democracy may actually be impeded. Short-term international legitimacy would be bought at the price of crystallized internal conflict that undermines the trustee's authority, overall effectiveness, and, ultimately, long-term internal legitimacy.
Iraq and Kosovo provide good illustrations of this dilemma. In Iraq, out of fear that elections would reinforce ethnic and religious tensions beyond the trustee's management capacity, the occupying authorities chose to empower relatively weak institutions of local government from the top down rather than through elections. [FN206] Likewise, the political trustee in Kosovo is resisting calls by the Albanian majority for an early plebiscite on Kosovo's future status. The political trustee is concerned that the vote would favor independence and that the international community is not ready to reconcile such an exercise of self-determination with Serbia's continued claims to sovereignty over the territory of Kosovo. [FN207]
*438 On a more positive note, properly conducted democratic elections may protect human rights. This would further the political trustee's international legitimacy, particularly if intervention is the result of human rights violations. However, improperly conducted elections may jeopardize the rights of minorities and thus harm the international legitimacy of the political entity holding the elections. The election of Slobodan Milosevic in Yugoslavia did not enhance legitimacy of his government among the Croats, Bosniaks, or Kosovar Albanians, and for that matter, damaged the country's international legitimacy.
d. Enforce Human Rights
Closely related to holding democratic elections, compliance with universal international norms relating to human rights is also a potent source of international legitimacy. Political trusteeships are commonly established in response to human rights abuses. The international interventions in Bosnia [FN208] and Kosovo [FN209] were justified in large part by the need to put an end to ethnic cleansing. The international intervention in East Timor was mounted to stop the human rights abuses associated with the conflict between pro-Indonesian paramilitary forces and separatist forces. [FN210] The interventions in Afghanistan and Iraq, although justified primarily on the grounds that intervention was necessary to remove threats to international peace and security because of sponsorship for terrorism and the possession of weapons of mass destruction in violation of earlier UN Security Council resolutions, respectively, were also justified as necessary to put an end to human rights abuses. [FN211]
However, this basis of international legitimacy also presents challenges. First, a political trusteeship's international legitimacy is undermined if it is established for the purpose of protecting human rights but fails to employ *439 visible and effective measures for that purpose, or embraces local leaders or political arrangements that actually perpetuate human rights abuses. [FN212]
Political trustees may also face challenges linking human rights goals with other goals of the political trusteeship, such as physical security, economic development, and development of institutions of a liberal democracy. This challenge has arisen in Kosovo regarding the goal of ensuring that Kosovar Serbs (and other ethnic minorities) are not abused by majority Kosovar Albanians. While this is an important part of UNMIK's mission (UNMIK has appropriately structured local elections, [FN213] political parties, [FN214] and Provisional Institutions of Government [FN215] to ensure minority representation), this has led to deadlock on final status discussions until Serbs return to Kosovo from Serbia. [FN216]
e. Develop Governmental Effectiveness
Effectiveness in establishing and preserving public order, in providing infrastructure such as running water and electricity, and in delivering public services, such as education and healthcare, is essential for international legitimacy.
Governmental effectiveness amounts to the ability to maintain control over the territory and population, a core tenet of sovereignty in international law. [FN217] Inability to provide certain basic services could also lead to human rights violations, further damaging international legitimacy. Finally, governmental ineffectiveness may cause the populace to rely on traditional institutions *440 of questionable international legitimacy. Afghanistan is one such example of this phenomenon. [FN218]
f. Provide Charismatic Leadership
Charisma matters in international as well as internal political leadership. [FN219] A charismatic leader can better mobilize international support. For example, Winston Churchill mobilized support for Britain from an initially skeptical U.S. population during World War II. Thus, architects of political trusteeships should recognize the utility of appointees who are proactive in reaching out both persuasively and appealingly to international constituencies.
In the international context, charisma involves a high degree of cultural awareness. Local leaders can undercut international support when they base their efforts on internationally taboo values by appealing overtly to racist or ethnic prejudices. In Kosovo, charismatic local leaders such as Hasim Thaci, Ramush Haradinaj, and Ibrihim Rugova have muted their earlier nationalistic rhetoric in order to retain international support for the political trusteeship in Kosovo. [FN220]
g. Bring an End to National-stage Conflicts
Ending conflicts is a hallmark of both international and internal legitimacy. [FN221] Whether one's peacemaking skills translate into international legitimacy *441 depends on whether the international community perceives the peacemaker as bridging internal conflicts not only between internal factions but also between the local state and the international community. Political trustees' international legitimacy will be particularly enhanced insofar as they reduce or end the local conflicts that may have justified the international intervention in the first place. [FN222]
2. Build Internal Legitimacy
Internal legitimacy is important to the success of a political trustee in two respects. First, the trustee itself must enjoy sufficient internal legitimacy to be able to exercise sovereign functions effectively until a local government can be constituted. Second, the local government constituted by the trustee also must enjoy sufficient legitimacy that power can be handed off to it as the trusteeship is brought to a close.
The foreign administration of territory has always depended on internal legitimacy for its success. All imperial powers understood at some point in their imperial policy that they had to pay attention to internal legitimacy in order to maintain control over their territories. When internal legitimacy is lacking, power can be retained only by resort to coercive force, and revolutionary theory suggests that the level of force necessary to retain control in the absence of legitimacy will escalate until the populace eventually revolts. [FN223] These empires vanished because each lost its internal legitimacy, and in the end, the imperial power was unwilling to commit the escalating *442 resources necessary to suppress rebellion and deploy security personnel who would follow orders. [FN224]
One may assess the strength of internal legitimacy by evaluating the legal and political relationships among the trustee, local or indigenous institutions, and political forces. The trustee's ability to generate internal legitimacy hinges on a variety of factors. Some of these include whether it can deliver effective government, promote governmental transparency, provide mechanisms for judicial review, promote popular confidence in local institutions, respect indigenous personal and group pride, implement structures compatible with common ideology, harness tribal custom, nurture charismatic leadership, and bring an end to national-stage conflicts.
As has already been observed in this article, legitimacy in one area may undercut legitimacy in another. First, internal legitimacy is not always positively correlated with international legitimacy. The two are often negatively correlated. The more robust the international support for international intervention in domestic affairs, the more likely it is for local populations to feel that their interests are being subordinated to the interests of other states. Second, several of the factors that facilitate internal legitimacy may conflict among themselves. For example, appeals to ideology and tribal customs may undermine effectiveness in government, especially if effective government is associated with modernization. Democratic elections may result in leaders who campaign against the rights of minorities. Opening economic and political opportunities may cause loss of face for individuals and groups representing traditional elites. Third, there may be tension between short-term and long-term internal legitimacy.
a. Deliver Effective Government
Like international legitimacy, internal legitimacy depends to a large degree on governmental effectiveness. [FN225] The aphorisms, "he made the trains *443 run on time," [FN226] and "Chicago - the city that works," [FN227] reflect public willingness to accept questionable features of, respectively, Mussolini's government of Italy, and the first Mayor Daley's government of Chicago, because they were effective in providing basic government services and creating an environment where economic prosperity existed.
However, the ineffective governance may affect internal legitimacy in different ways depending on the specificity with which a political trusteeship is defined. A clearly defined political trusteeship that fails to establish governmental effectiveness may damage its internal legitimacy if the population turns to traditional mechanisms for satisfying its needs [FN228] or if nostalgia for an ousted regime grows. [FN229] Alternatively, if the political trusteeship's authority is blurred and it is not clear who is responsible for public order and public services, failure may not undercut the legitimacy of the trustee in the short term.
Bosnia is an example of the ramifications that inefficient government can have upon legitimacy. More than two years after the Dayton Accords were signed, neither electricity nor running water was reliable in the capital city of Sarajevo. [FN230] This problem served to undermine internal legitimacy for the local institutions and stimulated support for a greater role for the international community, culminating in the Sintra declaration. [FN231]
Another problem, as explained further in this section, is that many tactics aimed at improving short-term governmental effectiveness may conflict with other indicia of internal legitimacy, by, for example, eroding tribal custom, undermining personal and group pride, and short-circuiting respect for certain human rights. [FN232]
*444 b. Promote Governmental Transparency
A political trusteeship must institute major social and political changes, usually in an abrupt manner. Transparency is important for internal legitimacy because it can reduce the level of public confusion and frustration that accompanies these changes. A more transparent regime makes it easier for citizens to understand their obligations and to navigate the bureaucracy when they seek governmental licenses or benefits. It also enhances legitimacy by undermining claims that the government is arbitrary, corrupt, and uninterested in the concerns of ordinary people.
Typical areas where change creates public confusion are precisely where political trusteeships should strive hard to create transparency. These potential problem areas include confusion over where to report a crime, how to get information on who has been arrested and why, whether a much-talked about new law has been promulgated, how to apply for an import license, and how to register a new business.
Today, political trusteeships can make use of modern technology, especially the Internet, to enhance transparency. This can be done simply by publishing general information about governmental structure and historical background, important regulations or decisions, and information about important governmental services. The Internet not only can further internal legitimacy if enough people in the territory have access to a computer and a phone connection, but it can also further international legitimacy.
Recent UN trusteeships have shown only mixed success, however, in taking advantage of the Internet. In the early days of the Bosnian political trusteeship, the Internet was not yet a main channel for seeking information about government. Now, the Office of the High Representative in Bosnia has a comprehensive website that provides background and contextual information, and offering links to the full text of OHR orders. [FN233] Kosovo was the first political trusteeship to be initiated after the Internet was widely used by the general public around the world. Initially, UNMIK used the Internet quite well to enhance transparency by publishing its regulations on its website and generally describing its mission and important developments. [FN234] By 2003, however, this changed as important regulations were not published on the website in a timely manner, and a number of important structural changes involving the trustee and local governmental institutions were not accounted for online. In Afghanistan, the World Bank sponsors a website for the interim *445 government. [FN235] The site purports to provide access to the constitution drafting effort, which is a good idea, but the link is broken. The site contains no references to interim legislation or orders issued by the interim government. It thus provides a presence and background information, which are desirable, but does not provide an effective window into the governing activities of the institutions making up the political trusteeship in Afghanistan. The beginning of the Iraq occupation was entirely opaque. It was extremely difficult to even confirm the name of the organizations and personnel responsible for civil administration, let alone to get access to the full text of important decisions. However, a solid website had been established by October 2003 [FN236] that provided access to items such as regulations, orders, and interpretations issued by the Occupying Authorities. [FN237]
c. Provide Mechanisms for Judicial Review
Judicial review of trusteeship decisions promotes internal legitimacy by strengthening governmental effectiveness and by mitigating suspicions that the trustee makes arbitrary and unaccountable decisions. While political trusteeships often extol rule of law, they almost always lack one of the hallmarks of a rule of law, judicial review. [FN238]
Two levels of judicial review exist. At the higher level, there is judicial review of legislative enactments to ensure their conformity with constitutional limits. This can be called "constitutional review," the type often exercised by constitutional courts. Judicial review of decisions by subordinate government officials to test their conformity with legislative acts, often called "administrative law," occupies the lower level. Both levels of judicial *446 review can exist in a political trusteeship either in separate institutions, as in Germany and France, or in a unified judiciary, as in the United States. [FN239]
A political trusteeship will have an easier time institutionalizing constitutional review if there is a written constitutional document establishing the political trusteeship, such as S.C. Res. 1244 for Kosovo. Such a document must also be reasonably specific as to the institutions and powers of the political trustee so that a court can provide limited review of the legitimacy of trustee action without substituting its own political judgments for those of the trustee. As with a common-law trust, the trustee often has more discretion and a reviewing court less when the trust document is specific as to trustee powers and how they are to be exercised. [FN240]
Arrangements for judicial review of the administrative law sort are easier to design without blurring authority for policymaking, because delegations of authority to subordinate entities are necessarily written and reasonably specific. Nevertheless, defining the major features of such a system requires important policy choices.
First, any scheme for judicial review of agency action [FN241] must establish a threshold that triggers eligibility for judicial review. One should not be entitled to formal review of the mere thoughts or unexecuted intentions of an agency official, agency statements with no legal effect, or agency decisions that do not adversely affect legal interests of the person seeking review. It is helpful to think of this threshold as similar to the requirements for ripeness *447 and standing under U.S. administrative and constitutional law. [FN242] This scheme for judicial review should identify the kinds of legal interests that, when infringed by concrete and final agency action, entitle the holder of those interests to judicial review. [FN243]
Second, if and when it is determined that a legally protected interest has been detrimentally affected by agency action, the administrator must either reverse the action or offer justification for the action, thereby making it legally permissible. Here, the political trustee can again borrow from conventional administrative practice. In this context, the trustee must justify its action by demonstrating three propositions: first, that the action taken or decision made by the trustee was rationally related [FN244] to a legitimate state interest; second, that the protection of that interest was within the trustee's mandate; and third, that the decision was reached through appropriate procedures. This procedural inquiry should require notice of the action or decision proposed, an opportunity to present reasons why the action should not be taken, an impartial decision maker, an opportunity to present witnesses, professional counsel, a statement of the grounds for the decision referring to arguments made by the person opposing the decision, the possibility of review, and public access to the proceeding. [FN245]
In Kosovo, Bosnia, East Timor, Afghanistan, and Iraq there is no judicial branch of the UN that exercises any review analogous to administrative review. Indeed, the Kosovo Ombudsperson, [FN246] upset over UNMIK's lack of *448 judicial review, has determined that it violates international human rights law for decisions by a political trustee not to be subject to review by an independent judicial body. [FN247]
There are different methods for a political trusteeship to establish judicial review. One is for the United Nations Security Council to establish a judicial body [FN248] to review decisions of a UN-established political trustee, or of all such political trustees. [FN249] Another is for a future political trustee to establish a tribunal to review the actions of subordinate officials of the trustee. The highest-level authority of the trustee, like an administrative agency head, would have ultimate power to accept or reject decisions of the reviewing body. An example is the Special Chamber of the Kosovo Supreme *449 Court, authorized by SRSG Regulation 2001/13 to review the decisions of the Kosovo Trust Agency, an independent agency established by UNMIK in SRSG Regulation 2001/12.
d. Promote Popular Confidence in Local Institutions.
Political trustees must not only work to build and preserve their own internal legitimacy, they also must build internal legitimacy for local political institutions that eventually will assume full sovereignty. [FN250] Failure to do this will require the political trusteeship to go on forever or to end with chaotic results.
Just because a political trustee plans to devolve and actually does devolve power to local institutions does not mean these institutions have legitimacy in the eyes of the populations they govern. The Shah of Iran was local, [FN251] but eventually was overthrown because he had ceased to enjoy internal legitimacy. [FN252] Rather, engineering local institutional legitimacy requires sophistication about politics in general, and about the political dynamics of the territories where legitimacy is sought in particular.
First, it is important to note that elections, while they are the usual method for achieving and testing political legitimacy, are hardly a complete solution. The experience in Yugoslavia and other immature democracies demonstrates that elections without the other institutions of democratic politics encourage demagoguery and promote extreme nationalism in addition to ethnic and religious hatred. [FN253]
Building institutional legitimacy requires more. It requires developing mechanisms for aggregating interests and organizing political agendas. Such mechanisms may be found in the campaign of an individual candidate whose electoral district spans a large enough territory to encompass multiple competing interests and claims, in a political party framing its platform, or in the *450 bargaining behind formation of a government or cabinet in a parliamentary system.
Institutional and political legitimacy also requires a broad foundation of other political institutions. These include political parties capable of candidate selection, policy development, communication to the voters, and press and media capable of achieving reasonable balance and critical analysis of the positions of candidates and parties and their positions, and legal regimes and other structures that permit the creation of new political movements while resisting undue fragmentation of parties.
Political institutions must also be responsive to majority sentiment and effective in making and carrying out tough decisions while reasonably respecting minority interests and views. To a considerable extent, such respect is the product of political culture and a sense of "political correctness" that develops and adapts over time into political sensibility. It also can be encouraged structurally, by balancing institutions that are democratically accountable to different constituencies. Upper houses of the legislature, elected executives, federal systems, and constitutional courts are examples of democratic institutions that can counterbalance a majoritarian legislature.
Institutional political legitimacy is also enhanced where the electoral process itself is viewed as legitimate. Kosovo is an example where there have been problems with this kind of legitimacy. Once groups qualify as political parties in Kosovo, they select their candidates and rank-order them. On Election Day, however, only party names appear on the ballot, not the candidates' names. The candidates are elected and serve at large for the whole country, depriving the political process of any direct personal dimension. This is particularly problematic for a society accustomed to dominance by a single party that was viewed as unaccountable and corrupt. While allowing for personality-driven politics makes it easier for demagogues to develop, it also is the case that a personal bond between the electorate and a politician can enormously reduce political alienation.
These experiences in Kosovo instruct that elections should be structured and managed so as to ensure that individual candidates get reasonable amounts of media exposure, and that ample opportunities exist for "retail politics" such as face-to-face campaigning, "town hall meetings," and small meetings in voters' homes that provides the electorate with an opportunity to discuss particular issues and concerns with candidates in a more interactive and deliberative process than simply listening to a campaign speech by a party official.
Finally, the political trustee must understand that a natural message for any democratic candidate is to criticize the trustee; the trustee cannot have *451 both real democracy and blind loyalty from local officials. There will come a time in the life cycle of a political trusteeship when the domestic political system has developed such that the local politicians are so critical of continued power by the trustee that their dominant platform is ending the foreign dominance. Ideally, this local rejection will occur at exactly the same time that the trustee would have declared the trust successful and terminated it unilaterally. In other words, trustees must design and implement an exit strategy. [FN254] In Kosovo, the trustee is confronted by exactly this phenomenon. Holding elections for the parliament and municipal governments has empowered and emboldened those institutions to challenge UNMIK's retention of power, thereby hastening the probable end or substantial modification of the trusteeship. Accelerating negotiations over final status for Kosovo will allow UNMIK to time the end of the trusteeship so that it coincides with the growing legitimacy of local institutions.
In Afghanistan and Iraq, the political trustees have struggled to put together interim local governments with sufficient legitimacy to succeed in drafting constitutions to be submitted as popular referenda. It is too soon to tell whether the constitutional referendum process [FN255] will produce legitimacy for local institutions that then agree to a schedule of devolving power that is acceptable to both the locals and the trustee.
e. Respect Indigenous Personal and Group Pride
Political trustees must recognize the powerful role that group pride and individual self-esteem play in shaping internal legitimacy. [FN256] Too often, political trustees try to institute widespread change without sufficient knowledge of local cultures, sometimes even motivated by a counterproductive zeal to replace all things traditional with Western, and particularly American, alternatives. [FN257] A successful political trustee figures out a way to preserve individual and group pride, even while the social, political, and economic changes it brings about contradict local culture and tradition.
*452 These changes may clash with a number of local customs and traditions. For example, governmental effectiveness may clash with a tradition of nepotism. [FN258] Creating judicial machinery that can sustain economic development may offend traditional tribal dispute resolution practices, drawing resistance from those in charge of the traditional institutions. [FN259] Opening the society to free trade and foreign investment may threaten local economic elites. [FN260]
A political trustee must calculate whether, in instituting changes, the gains to individual and group pride outweigh the costs. In this respect, the trustee should seek to create new sources of pride. This might be done by opening up economic opportunities, especially for the middle class and young people, or removing restrictions on religious and cultural identity.
f. Implement Structures Compatible with Common Ideology
Closely related to the need to respect and enhance group pride is the need for political trustees to understand the power of ideology.
The power of ideology is not a new phenomenon. [FN261] The English Revolution, and the European wars preceding the peace of Westphalia, were struggles over legitimacy conferred by competing centers of power within Christian ideology. Lenin and Stalin used Marxism as a basis to shore up the legitimacy of their regimes and of friendly regimes in other states. The *453 proliferation of nationalist ideology among subjects of the British, French, Austrian, Ottoman, and Russian empires contributed to their declines. [FN262] In the current post-colonial context, one can make the case that ideas and ideology are even more important than military strength. [FN263]
Political trustees typically give some credence to the power of ideology, but not enough. Most international interventions, for example, are accompanied by rhetoric on "democracy," "human rights," "freedom," "liberty," and "market economics." These slogans, however, represent weak ideologies, at best. [FN264] Political trustees should seek to embrace and harness powerful, existing ideologies, such as nationalism [FN265] rather than confront them. [FN266]
In Bosnia and Kosovo, for example, ethnically based nationalism was the dominant ideological phenomenon confronted by the political trustees. [FN267] Similarly in Iraq, managing the well-known ideological split within Islam between Shi'a and Sunni sects and understanding the historical tug of war between secularism and religious ideology in Iraq are both major challenges for the trustee. [FN268]
*454 g. Harness Tribal Custom
In most cases, compliance with tribal custom is a potent source of internal legitimacy. [FN269] Traditional relationships that are usually centered around the family can function as the breeding ground for significant conflict and violence. [FN270] Conversely, such relationships can be significant sources of physical and economic security. In Kosovo, for example, a strong tradition of having one male member of each large Albanian family leave Kosovo to work in the West and send remittances back to Kosovo represents a significant portion of Kosovo's GDP.
Traditional mechanisms for dispute resolution can reduce burdens on state- based legal systems, [FN271] but often violate human rights. [FN272] Political trustees must understand and respect these customs, identify the ones that are irredeemably incompatible with achievement of the central goals of the trustee, and seek to harness the rest. In this regard, political trustees should follow the example of some of the sophisticated autocratic regimes they replace, which often used cooptation as a political strategy. [FN273]
h. Nurture Charismatic Leadership
As noted supra in Part II.B.1.f, a trustee can enhance its internal legitimacy by picking leaders with personal charisma. [FN274] A charismatic leader within a trusteeship should act as if he were running for an American political office. For instance, he could grant local press interviews, meet with all kinds of groups and especially student groups, and organize "town hall meetings." Such a leader can prove to be invaluable in helping a trustee rapidly build internal legitimacy for fledgling institutions of local government.
*455 A successful political trusteeship also must appreciate the power of charismatic local leaders who are not associated with the trusteeship. Such leaders can rapidly build opposition to the trustee. Therefore, the trustee must encourage the growth in legitimacy of local, charismatic leaders as part of its exit strategy without letting these leaders build public support solely at the expense of the legitimacy of the trustee and its institutions. [FN275]
Here, the trustee can borrow from American politics, particularly the manner in which a charismatic President interacts with incumbent members of Congress. When popular decisions are made by the trustee, or grants or public works projects announced, local leaders should participate in the announcement even when the substance of the announcement relates mainly to the trustee rather than to local institutions. The trustee gains from the personal charisma of a local leader, while the local leader's legitimacy is further solidified without undermining the legitimacy of the trustee. Similarly, when unpopular decisions are made by the trustee, the trustee should tolerate public criticism from local political leaders in good grace by recognizing that growing opposition to the trustee is inevitable. Furthermore, the trustee should realize that expressions of opposition by local political figures help them build their own legitimacy.
i. Bring an End to National-Stage Conflicts
Demonstrating ability to bridge gaps that underlie local conflict between groups is a powerful source of legitimacy in situations where the population has grown tired of the conflict. The legitimacy of certain figures such as King Juan Carlos of Spain is best explained by their perceived ability to mediate internal conflict. Other examples include the post-apartheid leaders in South Africa, Yitzhak Rabin in Israel and Mahatma Gandhi in India.
Political trusteeships can enjoy substantial local legitimacy, especially at the outset, simply because they are associated with restoring peace and ending violence. This dimension of internal legitimacy overlaps substantially with the effectiveness dimension, considered in Part II.B.2.a.
C. Develop a Liberal Democracy
In the end, the success of a political trusteeship depends on whether it succeeds in developing a "liberal democracy." [FN276] Only a liberal democracy *456 can give both internal and international legitimacy in the long run. Without liberal democracy a trusteeship may very well hold elections, only to see "racists, fascists, and separatists" elected, [FN277] results which would undermine the original goals of political trusteeship.
Liberal democracy entails constitutionalism, a rule of law, civil society, and a market economy. Constitutionalism suggests a Madisonian type political balance, [FN278] with various mechanisms in place to protect against tyranny of the majority. [FN279] Rule of law signifies that politicians and political institutions are bound by laws. [FN280] Civil society involves an effective free press, an effective bar, a reasonably balanced set of interest groups, and effective political parties capable of mediating among narrowly defined factions. [FN281] Finally, *457 liberal democracy envisions a private sector which checks governmental power on the one hand and is itself checked by government on the other hand.
This section focuses on what a political trustee must do to develop liberal democracy. Specifically, it must design institutions that manage internal political competition but also draw on unique local experiences, recruit leadership elites from without and within the trust territory, define and implement strategies for economic development, and control corruption without letting the issue dominate the agenda.
1. Design Institutions that both Manage Internal Political Competition and Draw on Unique Local Experiences
The essence of liberal democracy is a system for managing internal political competition. Every society, other than the smallest, limited to one tribe, is heterogeneous to some extent, with competing interests and leaders. A successful political trusteeship must understand this competition and set limits on competitive outcomes so that no one ethnic, religious or political group achieves so much power that it can ignore the interests and rights of other groups. [FN282] At the same time, the trusteeship must also recognize that such competition can produce political paralysis. The experiences of political trustees in Afghanistan, [FN283] Iraq, [FN284] and Bosnia [FN285] illustrate how internal political competition can frustrate effective government.
*458 Attaining liberal democracy requires, at the abstract level, political structures and institutions that aggregate interests and mediate conflict, while ensuring legitimacy and popular support for local institutions. These political, legal, and economic institutions should be capable of independent decision-making, even when the decisions are unpopular. Their individual decision-makers, however, must still be subject to constant scrutiny by opposition political parties, the press, and the judiciary, [FN286] and ultimately vulnerable to replacement through elections in which alternative policies and personalities compete on a level playing field.
Developing such institutions requires, however, more than "a knowledge of democracy alone." [FN287] Political trustees must be astute in understanding local political dynamics, perceptive in analyzing the likely result of one group or another coming out on top, and creative in designing institutions that check and balance each other effectively in the social and historical context in which they operate. [FN288]
As the institutions are still developing, political trustees must, therefore, handle competition among political groups strategically. The trustee should be willing to play certain local groups and institutions against others to ensure *459 a reasonable balance among local forces, [FN289] breaking deadlocks when necessary with its own authority. [FN290] Then, when designing these institutions, the political trustee must abandon formalistic or American style models of democracy in favor of institutions that relate to and can channel natural political patterns and social forces. [FN291]
Kosovo provides a vivid example of this challenge. From 1989 to 1999, Kosovar Albanians organized and operated a "parallel society" consisting of a political, legal, and economic system that operated outside the formal legal and governmental structure imposed by the Serbian government. [FN292] This parallel society bred in Kosovar Albanians a willingness and capacity to work outside of and in conflict with formal legal rules and procedures. [FN293] These experiences and habits provided useful ingredients for design of the institutions of a liberal democracy, but most internationals skipped over the period from 1989-99, focusing instead on Kosovar habits and outlooks under a communist regime. [FN294] In fact, too many internationals dismissed these experiences as "corruption," not as an asset or special capacity to build new institutions. [FN295] Informed analysis of the apartheid experience for the Kosovar Albanians could have been used as the basis for achieving more rapid devolution of political authority, enterprise development, and new institutions capable of protecting against overreaching by the existing informal institutions.
*460 The current situation in Iraq presents an opportunity for the U.S. to avoid this kind of misstep. Between the two U.S. led wars in Iraq, Kurdish self-government flourished. Successful political trusteeship in Iraq depends on harnessing this experience rather than threatening the position of the elites who have emerged from it.
To foster liberal democracy, political trustees must develop institutions that bear the marks of liberal democracy, in that they effectively manage internal political competition, but also draw from special local experiences. Otherwise, nationbuilding can become a fantasy, the international community preoccupied with its own pronouncements, initiatives, and the activities of NGOs, while the local population goes about its business, potentially in a different direction.
2. Recruit Leadership Elites from Outside and Inside the Trust Territory
Liberal democracy depends upon the existence of elites who can provide effective leadership in the political, economic, engineering, legal, and public administration realms. Such leaders should provide experience, political sophistication, technical know-how, and the intellectual capital needed for democracy building. At first, much of this human capital must be imported; but as progress is made in building a liberal democracy, "home-grown" elites should replace imported elites.
Initially, technical assistance must be available to the trustee from enthusiastic cadres of professional lawyers and political veterans to serve as role models, teachers, and change agents, and often actually to work as law- makers, judges, prosecutors, and defense lawyers until indigenous professional capability is retrained or developed. [FN296]
Political trustees must never forget that their stewardship is temporary. Imported experts must understand that only part of their job is to provide good government. An equally important part of their job is to recruit and train local elites to replace them and to lead a liberal democracy after they are gone. Political trustees must ensure the development of economic elites that can function effectively in an entrepreneurial market economy. They *461 must nurture value systems in political elites that respect the role of those in opposition, while enabling criticism of those in government. They must train political elites in party-building and effective campaigning. They must recruit civil-society elites who can build and lead a free press and voluntary associations.
In the initial stages of setting up a political trusteeship, the first task of the trustee is to pick a class of elites from among those in power before the trusteeship was established. [FN297] This is a delicate task. On the one hand, political trustees must be careful not to overlook existing elites who may not be part of the formal institutional apparatus. For example, pre- war Kosovar businessmen, many of whom served as middlemen between Serb and foreign interests during the period of sanctions against Yugoslavia, constituted a class of economic elites. If the international community had enlisted involvement of these businessmen, development of a sustainable private sector would have been expedited. On the other hand, in most cases, the existing elites manifest some important deficiency. For example, the Baath Party in Iraq and the Taliban in Afghanistan both have a history of abusing the population and minority groups. The elites in Kosovo's parallel society were isolated from best practices in other countries and accustomed to acting outside of rather than within formal legal systems.
The second task for the political trustee is to develop new elites for the future who are committed to the hallmarks of liberal democracy. This requires three things. First, there must be educational institutions that can provide good professional education in the areas of law, public administration, business administration, and engineering. Second, the most promising young leaders should be recruited into special leadership training programs, where they are taught to recognize their own potential as leaders (as distinct from acquiring substantive knowledge in law, economics, accounting, or political theory), and to provide continuing support to each other. Support is important for the next generation of potential leaders because they usually face frustrating obstacles imposed by older leadership elites. These elites commonly fail to grasp opportunity, resist the change mandated by the political trusteeship, and simply refuse to relinquish their jobs for as long as possible. Third, there must be a program to send young professionals to other countries for professional education. When potential leaders study abroad, they get the benefits of exposure to the best practices and up-to-date theories in their field. They also learn to speak English and other languages essential for *462 maintaining economic and political linkages with the international community. Finally, it allows young professionals to develop a web of relationships that will enable them to mediate between the unique cultural and historical features of their own societies and the rest of the world. [FN298]
3. Define and Implement Strategies for Economic Development
Sustaining a liberal democracy requires more than balanced political institutions, a rule of law and a civil society; it also requires economic hope. [FN299] No political trusteeship will succeed unless there is a rising economic tide. The same kind of private sector that can provide economic hope also provides an important source of checks against excesses in governmental power. Therefore, any political trusteeship should give development of the private economic sector as high a priority as it gives security, human rights, rule of law, and capacity building for democratic political institutions. While economic development depends upon success in some of these other areas, it should not be deferred pending success on the other dimensions. Five key elements of an economic development strategy are: a proper institutional underpinning, an economic vision, a sound trade policy, early privatization, and an economic "toolkit" of human and intellectual capital.
First, institutions matter in achieving a prosperous private sector. [FN300] These include a clearly delineated system of property rights, a regulatory apparatus that curbs fraud, anticompetitive behavior and moral hazard, social and political institutions that mitigate risk and manage social conflicts, and a rule of law and clean government. [FN301] Political trustees should not be prisoners *463 of what Joseph Stiglitz calls "market fundamentalism." [FN302] Rather, a sound economic development strategy [FN303] includes legal and social institutions that cushion the shocks of market responses, and aim at ensuring broad economic opportunity rather than concentration of power in the hands of an economic elite. [FN304] In a liberal democracy, the private sector checks governmental power, but government also checks private power.
Second, an economic development strategy requires an economic vision of how prosperity, or at least sustainability, can be achieved. This should not be a central plan to be executed by the state, but rather an evaluation of geographic locations and industry sectors where comparative advantage exists, thus holding the most promise for investment. Such a vision crystallizes the issues for entrepreneurs, investors, and policymakers.
Third, an economic development strategy must include sound trade policy concepts. Protection for existing industries, especially the most inefficient ones, is likely to be sought by local interests and is essentially a bad idea because it shelters inefficiency. But it makes no sense to have a policy where there is no protection for domestically produced finished goods while there remain heavy tariffs and value-added taxes on inputs, thus squeezing the margins of domestic producers to the vanishing point.
*464 Fourth, privatization must begin early in the life of a political trusteeship. [FN305] In Kosovo, it was deferred for nearly four years due to an unwillingness by UNMIK to accept the importance of privatization as a necessary part of the UN's mandate, even though it clearly was. [FN306] Any political trustee's mandate must include the powers necessary to reform the economy of the trust territory. [FN307]
Finally, just as the development of democracy and the rule-of-law requires a "toolkit" containing human and intellectual capital, [FN308] the same concept holds true for economic development. [FN309] Too often, the internationals *465 involved in political trusteeships are diplomats, human rights and humanitarian experts, public law experts and security personnel. Only a handful focus on economics and private sector development. Political trustees must emphasize importing experts in private sector development, and gradually developing local economic elites.
Giving priority to economic development not only assists political trustees in channeling the energy of the trust population into productive activity instead of political conflict; it also involves construction of institutional structures that reinforce liberal democracy by providing political checks and balances through the private sector.
4. Control Corruption but Do Not Let the Issue Dominate the Agenda
In building a liberal democracy political trustees should seek to reduce public and private-sector corruption, but they should not let their concerns about corruption thwart early progress toward economic and political development. [FN310] Without progress and reform, honesty is unlikely to be achievable.
There is no doubt that political and other forms of corruption are a serious problem throughout the developing world. Indeed, corruption is a problem in the developed world. [FN311] It is surely appropriate to try to manage nation-building initiatives so as to avoid a repeat of the Russian experience where hundreds of billions of dollars were poured into a system that diverted much of the money away from its intended purposes, and even deepened corruption because of the allure of huge amounts of money easily obtainable. [FN312] It is important to realize that corrupt decision-making by public officials undermines legitimacy of political institutions and subverts the functions of the intermediating institutions that create liberal democracy.
But it is also important not to let fear of corruption induce paralysis in decision-making and investment. [FN313] Kosovo is one example where, too often, those who want to avoid the risk of making economic decisions or of investing *466 resources in private economic development initiatives use fear of corruption as an excuse to delay or reject relatively obvious market structures to encourage and channel entrepreneurial energy.
Part of the problem is that corruption is defined very broadly. In a survey by The Riinvest Institute, [FN314] 54% of respondents in a 600- Kosovo-business survey in December 2001 cited corruption as a problem they had to deal with as a part of day-to-day business. They ranked corruption as seventh out of fourteen obstacles to doing business. But they, and the Western advisers who urged that more attention be focused on corruption, define corruption very broadly. For example, a 2002 conference on "Fighting Corruption in Kosovo: Lessons from the Region" [FN315] contained a set of tables that defined the following as instances of corruption: lack of transparency in government, low salaries, unresolved property issues, nepotism, lack of laws, government bureaucracy, lack of accountability, lack of consistent approaches, low wages, conflicts of interest in the privatization process, insufficient access to information, parliamentary oversight, funding of political parties, false documentation, monopolies and price fixing. [FN316] The table also listed money laundering, and a general category of "corruption of public companies and public officials."
Except for the latter two categories, examples of which can invariably be labeled corruption, the categories simply describe shortcomings of government, found in almost any political and legal system. To be sure, lack of transparency may make corruption easier, but lack of transparency does not inherently translate into corruption. Similarly, lack of parliamentary accountability may be a legitimate criticism of the functioning of provisional government institutions, but it does not equal corruption.
It also is important to distinguish among different types of corruption. When public officials refuse to perform their duties unless they receive a bribe, their behavior subverts liberal democracy. But smuggling cigarettes is not the same as plotting an assassination of an organized crime rival. Any competent political trustee needs to focus narrowly on serious corruption in order to eradicate it. It is unhelpful to encourage a tendency of citizens in a transition economy to view every governmental decision, especially the ones they do not like, as "corrupt," and to view all profit-seeking behavior in the private sector as corrupt.
*467 Liberal democracy involves a multiplicity of actors and institutions interacting so as to ensure that no one attains supreme power. Political trustees must realize that a rich variety of conduct is inevitable in the interstices of liberal democracy. They must resist temptations to hold back from building these institutions because occasional corruption may occur. The need for a political trustee to understand and, where possible, to take advantage of traditional patterns of conducting affairs, recommended in Part II.B.2.g can also shape a more balanced anti-corruption strategy. [FN317]
D. Announce and Follow an Exit Strategy
Political trustees must announce and follow an explicit exit strategy for two reasons. First, the international legitimacy of a political trusteeship depends on it being temporary and aimed at developing the capacity for independence. Second, as this article's analysis of internal political dynamics argues, success in developing internal legitimacy for local political institutions inevitably will lead to local group opposition against control by the trustee. A successful trustee will manage this legitimacy cycle rather than being forced into an undignified retreat when the local population becomes unwilling to tolerate its continued supremacy. [FN318]
In the most recent instances of political trusteeship, there have been no concrete assurances of termination, except for precatory language encouraging devolution of power to local institutions. [FN319] In the case of Kosovo, however, UNMIK is obligated by article 11(e) of the Resolution, to facilitate a political process designed to determine Kosovo's future status. [FN320] Delays in *468 defining and starting this process have intensified local opposition to the political trustee.
Two elements of trusteeship are important for maintaining a successful exit strategy. First, the political trustee must learn fully to expect that, as it succeeds in building local institutions and leadership, there will be growing opposition to its continued presence. Second, the trustee must clearly define triggers for devolution of power to local institutions, linked to goals of developing liberal democracy and maintaining legitimacy for itself and for the institutions it develops.
1. Expect Post-Conflict Euphoria to Turn into Resentment of the Trustee
Political trustees, even if they build internal legitimacy for themselves, must recognize that they will become unpopular over time. Indeed, growing resistance to the continued authority of the trustee is a measure of success for the internal legitimacy of local institutions that eventually must assume full sovereign responsibility for governing. Growing resistance to the trustee can be a useful tool in constructing the checks and balances inherent in a liberal democracy. A sound exit strategy must manage this exchange of one form of internal legitimacy for another.
Kosovo is an example of this phenomenon. Kosovar Albanians were euphoric after the war ended in June 1999. They believed that they had won their independence and they celebrated the bravery of the young KLA fighters against Serb repression. Moreover, they loved Americans and those that came with them to help the Kosovars build a new country under the trusteeship of UNMIK. [FN321]
Now, four years later, they complain bitterly about the autocracy, arrogance, and corruption of UNMIK. By early 2003, criticism of, and frustration with, UNMIK was growing, fueled by impatience with the slow pace of transferring final decision making authority from UNMIK to local institutions. Moreover, there was a growing belief among the Kosovars that UNMIK institutions are not transparent, are frequently corrupt, and have no political accountability in the democratic sense. Local political institutions, emphasizing their legitimacy based on three rounds of local and national elections, chafe under limitations on full exercise of their political power. [FN322]
*469 The world's long history of colonialism teaches that local resentment of foreigners exercising sovereignty is inevitable. Even if the locals are not ready to exercise sovereign powers on their own, they nevertheless will express resentment. Political trustees who want to be successful must recognize the inevitability of this process and must design and execute an exit strategy that accommodates these sentiments and uses them to create incentives for the construction of a liberal democracy.
2. Clearly Define Triggers for Devolution to Local Institutions
The exit strategy for any political trustee must be framed by clear criteria, or "triggers," for devolution of power to local institutions. [FN323] Kosovo and Bosnia illustrate examples where triggers were not clearly defined. In Bosnia, [FN324] the sequence was reversed. First, the local institutions retained sovereignty. However, when the international community became frustrated at the slow pace of progress toward its predefined goals, they incrementally transferred sovereignty to the UN High Representative. Now, the international community is defining certain benchmarks that must be satisfied before the High Representative gives power back to the local institutions and eventually withdraws altogether. [FN325]
In Kosovo the SRSG insisted that eight "standards" be satisfied before the UN trusteeship would begin the process of negotiating final status, but the standards were stated in general terms and accompanied by only a vague *470 commitment to devolve further power to local institutions. [FN326] Efforts were underway in the fall of 2003 to operationalize the standards to provide measurable goals against which progress could be judged. [FN327]
Exit triggers should also encompass more than elimination of threats of violence. Of course, power cannot be devolved to local institutions, until reasonable physical security exists for all segments of the trust population. [FN328] In Bosnia and Kosovo international intervention was justified in order to protect human rights against ethnic cleansing. The interveners hardly could be expected to endorse or transfer power to a regime that is likely to commit human rights violations or ethnic cleansing. But political trusteeship is more than pacification and peacekeeping.
Exit strategies must be linked to success in establishing liberal democracy. If political institutions are not viable, handing power to them and canceling the political trusteeship will result in a failed state. If no reasonable scenario of economic success exists, political and physical security will be only temporary. Accordingly, it is appropriate that trustees start with the following political criteria for ceding power:
The existence of political parties capable of competing with each other;
Demonstrated capacity to hold peaceful and fair elections;
Demonstrated capacity of political institutions, such as an executive, ministries, and an assembly, to make decisions and carry them out;
The existence of a rule of law, including functioning courts, reasonable access to those courts, reasonable promptness in making decisions, and the capacity to decide controversies that might paralyze the *471 government or impair its implementation of decisions consistent with basic individual rights in private arrangements; and
Demonstrated capacity of institutions of a civil society, including a free press, universities, and voluntary associations and legal and accounting professions capable of holding political actors accountable.
The trustee also should identify benchmarks for economic viability, including:
Concrete progress toward establishing the basic infrastructure to support private economic activity. This progress should include: a transportation and telecommunications system; a reliable supply of energy; and a civil administration that grants licenses and permits promptly, equitably, and honestly.
The existence of bodies of substantive law that support private economic arrangements and specify the terms pursuant to which commercial disputes will be resolved, including commercial contracts, property conveyances, formation of business enterprises, pooling of investments and investor security;
The existence of financial intermediaries necessary to channel investment funds into enterprises and to facilitate payments among trading partners, including banks, investment funds, stock markets, and other mechanisms through which entrepreneurs and investors can find each other;
Successful initial operation of mechanisms for restructuring inefficient existing enterprises, through privatization of state owned enterprises or bankruptcies of insolvent enterprises; and
Development and acceptance by relevant government authorities of a "national business strategy," including the assembly of reasonably detailed development plans that show how private sector development will be financed, government expenditures financed, and balance of payments deficits financed.
International intervention into the affairs of sovereign states is likely to continue, whether it is justified as "peacekeeping," defending human rights, or removing regimes thought to threaten international peace and security. New doctrines to shape and limit such interventions are necessary to assure both the international and internal legitimacy that is demanded of intervention in today's world. The concept of a political trusteeship is meant to supply such a doctrine. Borrowing from common law principles of trusteeship and synthesizing various aspects of interventions in recent history, it proceeds *472 from the UN Charter's recognition that international intervention sometimes is necessary to assure values beyond respect for sovereignty, including self-determination and human rights. Such intervention should, however, be proportionate to the justification, limited in time, and focused on the interests of the local population as well as the need to maintain human rights and international peace and security.
In order to succeed, however, a political trusteeship must exercise unambiguous sovereignty, it must build international and internal legitimacy, and its endpoint must be the development of a liberal democracy self- terminating when the criteria of a well-defined exit strategy have been satisfied. Success in pursuing these goals requires political sophistication, an appreciation of the link between economic progress and political stability, and a deft touch in harnessing the unique features of local culture and history to support the mission of the trusteeship.
[FNa1]. Professor of Law and former Dean, Chicago-Kent College of Law, Illinois Institute of Technology. Democratic Candidate for U.S. Congress, 10th Congressional District of Illinois, 2002. Member of the bar: Virginia, Pennsylvania, District of Columbia, Maryland, Illinois, U.S. Supreme Court. The author would like to express his gratitude for the thoughtful comments from his colleagues Lewis Collens, Harold J. Krent, Margaret G. Stewart, Richard Warner, his former colleague John Murphy, and friend Patrick Findlay. The author also appreciates the value added by thoughtful suggestions on the structure of this article by the editorial team at the UCLA Journal of International Law and Foreign Affairs.
[FN1]. These trust concepts are not unique to the Anglo-American legal tradition. Indeed, many scholars assert that the trust concept was known to Roman, German and Islamic legal tradition before it arose in England. See Avisheh Avini, The Origins of the Modern English Trust Revisited, 70 Tul. L. Rev. 1139 (1996); Thomas B.Lemann, Trust: A Common-Law Institution in a Civilian Context, 8 Tul. Eur. & Civ. L.F. 53, 53-56 (1993), Michael P. Scharf and Paul R. Williams also embrace the trustee model. They conclude that:
[I]ntermediate sovereignty and phased recognition amount to a form of "soft trusteeship." Despite its colonial connotations, the term soft international trusteeship adequately describes many contemporary state-building enterprises and forms a useful paradigm for understanding the future role of the international community in Afghanistan. Most importantly it also helps to define the limits of international involvement and the notion that such involvement must work toward an end state of full sovereignty for Afghanistan.
Michael P. Scharf & Paul R. Williams, Report of the Committee of Experts on Nation Rebuilding in Afghanistan, 36 New Eng. L. Rev. 709, 717-718 (2002).
[FN3]. The analysis of common law trusts is borrowed from material for an earlier paper on UN administration of Kosovo, written by John M. Scheib, former student of this author.
[FN4]. See, e.g., S.C. Res. 1244, U.N. SCOR, 4011th mtg. PP 9-11, U.N. Doc S/RES/1244 (1999) (listing purposes) [hereinafter "S.C. Res. 1244" ].
[FN5]. The arrangement for international administration of Kosovo is a paradigmatic example of a political trusteeship. The UN Interim Mission in Kosovo ("UNMIK") is the trustee, holding legal title (subject to a reversionary interest in the entity or entities determined through final status negotiations). Within this analytical framework, Kosovo itself--or the property comprising Kosovo--is the res that the United Nations holds in trust. Equitable title vests in the people of the trust territory as beneficiaries. See Restatement (Third) of Trusts § 42 cmt. a (2003). Even if the identity of the beneficiaries of the trust is ambiguous, this does not invalidate the trust. Under trust law, it is not necessary that the beneficiary be known when the trust is created. Restatement (Third) of Trusts § 2 cmt. h (2003). The beneficiary must be ascertainable when the trust is created, but that includes a beneficiary who is not yet ascertained or in existence at the time the trust is created. Id. Thus, the beneficiary in Kosovo could be an existing state, such as Yugoslavia, or it could be a state that subsequently comes into existence, such as an independent Kosovo. Alternatively, one can conclude that the peoples of Kosovo are the beneficiaries of the trust, as suggested in the text, and that it is the reversioner and the transferee of legal title who is to be ascertained later. Under this interpretation, there is no difficulty with the identity of the beneficiary, and the analysis in this note. The United Nations, as trustee, has fiduciary duties to the beneficiary, the peoples of Kosovo. "A person in a fiduciary relationship to another is under a duty to act for the benefit of the other as to matters within the scope of the relationship." Restatement (Third) of Trusts § 2 cmt. b (2003). The Trustee concept, combined with language in S.C. Res. 1244 encouraging devolution of governmental powers to autonomous authorities within Kosovo, supports aggressive UN action to modify law, establishes new legal institutions, and encourages the investment of private capital while proceeding as rapidly as practicable to give autonomy to local institutions.
[FN6]. For example, the United Nations undertook its duties in Kosovo not as a belligerent, but with the consent of Yugoslavia. The Federal Republic of Yugoslavia's agreement to S.C. Res. 1244 is akin to placing Kosovo in trust voluntarily. Conversely, in Afghanistan and Iraq the political trusteeships were imposed after military force ousted the previous governments.
[FN7]. But see John J. Mearsheimer, The Tragedy of Great Power Politics (2001) (presenting a theory of "offensive realism," which asserts that power relationships and the desire for hegemony continue to drive international relations, despite popular claims that the post-Cold War international system operates according to a cooperative paradigm).
[FN8]. Lawrence James, Raj: The Making and Unmaking of British India 174- 175 (1997).
[FN9]. Id. at 291.
[FN10]. Id. at 293.
[FN11]. Id. at 294.
[FN12]. Self-government as an explicit goal was embraced relatively late in the British Raj. See David Gilmour, Curzon: Imperial Statesman 484 (2003) (describing debate that resulted in a 1917 policy statement favoring eventual independence).
[FN13]. France had not yet exited Indochina or Algeria as of 1950. Martin Windrow, The French Indochina War, 1946-1954 (1998).
[FN14]. Stephen H. Roberts, The History of French Colonial Policy (1870- 1925) 64-65 (1929).
[FN15]. Id. at 65.
[FN16]. Id. at 65-66.
[FN17]. Roberts states that:
As far as possible, everything follows French models, and, save where geographical conditions positively necessitate change, the colony is regulated in precisely the same way as a departement in mainland France. It is represented in Paris just as a department is: it is administered through the usual organs and by the same forms: it has the same laws, the same official hierarchy, the same local councils, the same tribunals, and the same minutia of government. The native culture is destroyed insofar as is necessary and then built up again according to French models.
Id. at 67.
[FN18]. Id. at 70.
[FN19]. Id. at 71.
[FN20]. "Whatever theory says, the centralized rule of the Parisian officials remains the dominant feature in colonial life, even if Parliament ... adopts more liberal views." Id. at 75.
[FN21]. League of Nations Covenant art. 22.
[FN22]. Id. art. 22, para. 1.
[FN23]. Id. art. 22, para. 2.
[FN24]. Allen Gerson, Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank, 14 Harv. Int'l. L.J. 1, 27 (1973). (quoting International Status of South-West Africa, 1950 I.C.J. 128, 150) .
[FN25]. Elmer Plischke, Office of the U.S. High Commissioner for Germany, History of the Allied High Commission for Germany: Its Establishment, Structure and Procedures 1 (1951).
[FN26]. The United States was eager to see economic and political progress in Germany which would assist in achieving recovery in Europe in general. The Soviet government tried to prevent this. The result was the partition of Germany, with Great Britain, the United States, and France working to unify control of their sectors in West Germany.
[FN27]. Plischke, supra note 25, at 1.
[FN28]. Id. at 8. In this and all subsequent three-party negotiations, the Americans and the British tended to agree, and the French to block agreement, in part because of French desires to see a weaker German state, and in part because of the rigidity of the French military governor. See generally id.
[FN29]. Id. at 19. Paragraph 1 of the Occupation Statute provided, "that the German people shall enjoy self government to the maximum possible degree consistent with such occupation. The Federal state and the participating Laender shall have, subject only to the limitations in this instrument, full legislative, executive and judicial powers in accordance with the basic law and with their respective constitutions." Occupation Statute Defining the Powers to be Retained by the Occupation Authorities, P 1 (effective Sept. 21, 1949, abrogated May 5, 1955) (reprinted in History of the Allied High Commission, supra note 25, at 101-02).
Among other things, paragraph 2 reserved powers in the fields of disarmament and demilitarization, controls with respect to Ruhr Valley, restitution, reparations, nondiscrimination and trade matters, foreign interest in Germany and claims against Germany, and foreign affairs to the occupying power. Id. P 2. In Paragraph 3, the occupying powers reserved the right "to resume, parting whole or in part, the exercise of full authority if they consider it to do so as essential to security or to preserve democratic government in Germany or in pursuance of the international obligations of their governments." Id. P3. Paragraph 5 provided that any amendment of the basic law would require the express approval of the occupying authorities. Otherwise, the occupying authorities reserved a veto power over governmental acts by the German governmental institutions. Id. P 5.
[FN30]. Plishcke, supra note 25, at 12.
[FN31]. Id. at 27.
[FN32]. U.S. Dep't. of State, Pub. No. 2671, Occupation of Japan 8-9 (U.S. Dep't of State Far Eastern Series 17, 1946) [hereinafter "Occupation of Japan" ].
[FN38]. Id. at 10-11 (summarizing "initial post-surrender policy").
[FN39]. Id. at 19.
[FN40]. Id. at 21.
[FN41]. Id. at 26.
[FN42]. W. Ofuatey-Kodjoe, Self Determination, in United Nations Legal Order 354 n. 17. (Oscar Schachter & Christopher C. Joyner eds., 1995).
[FN43]. Id. at 380.
[FN45]. U.N. Charter arts. 73-74.
[FN46]. U.N. Charter art. 73.
[FN47]. W. Michael Reisman, Reflections on State Responsibility for Violations of Explicit Protectorate, Mandate, and Trusteeship Obligations, 10 Mich. J. Int'l L. 231, 236 (1989) (characterizing Article 73 as a "radical departure from prior international law" in that it automatically imposes certain obligations on the administrators of non-self-governing territories, distinguishing Article 73 from Article 75, which established an international trusteeship system).
[FN48]. See supra Part I.A.2 (describing late British imperial policy).
[FN49]. U.N. Charter arts. 75-85.
[FN50]. Id. art. 76.
[FN51]. Id. art. 77, para. 1.
[FN52]. A difficulty with this interpretation, however, is that Article 78 disqualifies territories which have become members of the United Nations from the trusteeship system. Id. art. 78.
[FN53]. The disintegration of Yugoslavia began formally with the announcement of independence from Yugoslavia by Macedonia, Slovenia and Croatia in 1991. Susan L. Woodward, Balkan Tragedy 132-146 (1995). On December 15-16, 1991, Germany persuaded the rest of the European Community to recognize both Slovenian and Croatian independence. A nasty inter-ethnic war raged in Croatia intermittently until the questions of Croatian independence, Croatia's borders, and the status of Serb minorities within the new Croatia were resolved in the Dayton Accords. Id. at 146.
Bosnia seceded from Yugoslavia in early 1992, accompanied by a declaration of independence from Bosnia by the Serb areas of Bosnia. The United States persuaded its Western allies to recognize Bosnia on April 6-7, 1992. Id. at 147. Fighting erupted in Bosnia among Muslims, Serb irregulars, the Yugoslav National Army (JNA), and Croatian irregulars. The Serbs initiated a siege of Sarajevo and other Muslim population centers, and began an intensive campaign of ethnic cleansing, driving Muslims from their homes in territory occupied by Serb forces. See Roger Cohen, Hearts Grown Brutal: Sagas of Sarajevo (1998). By July 1992, conflict, accompanied by ethnic cleansing, also had broken out between Bosnian forces and Bosnian Croat forces seeking to annex parts of Bosnia to Croatia. See generally Michael A. Sells, The Bridge Betrayed: Religion and Genocide in Bosnia (1996) (featuring the destroyed bridge in Mostar as a symbol of the destruction of Yugoslavia and the conflict in Bosnia). Beginning in 1992, a token UN force in Bosnia limited to protecting humanitarian aid was inserted and augmented modestly, periodically coming under fire. In February 1994, 68 Bosnian Muslims were killed by a Serb mortar attack on the Sarajevo marketplace. Despite the creation of Srebrenica as a safe zone in UN Security Council Resolution 819, the Bosnian Serbs held Dutch UN peacekeepers at bay and massacred thousands of Bosnian Muslim men and boys in July 1995. Chuck Sudetic, Blood and Vengeance: One Family's Story of the War in Bosnia (1998) (recounting the Srebrenica massacre). Responding to growing international outrage against the Serbs, NATO launched air strikes against Serb heavy weapons emplacements around Sarajevo in May 1995, and the Serbs responded by taking UN peacekeepers hostage. In November 1995, the Dayton Accords were negotiated, ending the Bosnian war. See Richard Holbrooke, To End a War (1998).
[FN54]. UN Security Council Resolution 1031 embraced the Dayton Accords. Explicitly acting under Chapter VII of the charter, the Security Council, "welcom[ed] and support[ed] the peace agreement and call[ed] upon the parties to fulfill in good faith the commitments entered into in that agreement." S.C. Res. 1031, U.N. SCOR, 3607th mtg. P 1, U.N. Doc. S/RES/ 1031 1995).
[FN56]. Id. art. IV.
[FN57]. Id. art. V.
[FN58]. Id. art. VI.
[FN59]. Id. art. VII.
[FN60]. Id., Annex 4, art. I, P 1. Annex 4 was separately signed by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and Republika Srpska. The Accords included a side letter from the delegation of the Republika Srpska requesting that the Federal Republic of Yugoslavia "be the guarantor of the obligations taken by Republika Srpska in the peace process."
[FN61]. Id., Annex 10, art. I, P 2.
[FN62]. Id., Annex 10, art. II, P 1.
[FN63]. This process for appointing international judges was to continue for five years after the initial appointments, after which the Bosnian Assembly could provide for a different method of selection. Id., Annex 4, art. VI, P 1.
[FN64]. Id., Annex 4, Annex 2, P 1.
[FN65]. See Peace Implementation Council Sintra Decl., Political Decl. from Ministerial Meeting of the Steering Board of the Peace Implementation Council (May 30, 1997), available at http://www.ohr.int/pic/default.asp?content_ id=5180 (last visited Feb. 3, 2004).
[FN66]. See Office of the High Representative, Decision Amending the Constitution of the Federation of Bosnia and Herzegovina, preamble (Apr. 2, 2003), available at http://www.ohr.int/decisions/archive.asp (referring to authority derived from the Conclusions of the Peace Implementation Conference) (last visited Jan. 19, 2004) .
[FN67]. For a complete list of the High Representative's decisions, see http://www.ohr.int/decisions/archive (last visited Jan. 19, 2004). In early 2003, the office of High Representative published a "Mission Implementation Plan that set forth in detail the plan for further progress in Bosnia. See Office of the High Representative, OHR Mission Implementation Plan (Jan. 2003), available at www.ohr.int. See generally Gerald Knaus & Felix Martin, Travails of the European Raj: Lessons from Bosnia and Herzegovina, 14 J. Demo. 60 (2003) (providing an extensive analysis and critique of continuing exercise of sovereignty by High Representative).
[FN68]. S. C. Res. 1244, supra note 4 (authorizing appointment of Special Representative of Secretary-General to head civil administration).
[FN69]. Kosovo had a predominantly Albanian population when Yugoslavia was assembled by the Paris Peace Conference after World War I. Kosovar Albanians were bitterly disappointed that Albanian national aspirations were largely ignored by the Western Powers at the end of the 19th century, and again by the Paris conferees. See Miranda Vickers, Albanians 30-43 (1997) (detailing late 19th century nationalist aspirations); Noel Malcolm, A Short History of Kosovo 217-238, 264, 273 (1998) (describing how Paris negotiators largely ignored Kosovar requests to be included in new state of Albania).
After World War II, Yugoslav strongman Josef Tito sought to mitigate Albanian restlessness by establishing greater Albanian autonomy in Kosovo, making it an "autonomous province" of Serbia, distinguished formally from a republic but having that status de-facto. Id. at 324 (describing the improvement in Kosovar Albanian position, culminating in the Constitution of 1974).
After the death of Tito, Slobodan Milosevic accelerated his rise to power as a Yugoslav Communist Party leader by demonizing Kosovar Albanians. Id. at 341-342. Before the decade of the 1980s was over, Milosevic had pushed through legislation disbanding the Kosovar Albanian assembly, expelling most Albanians from their jobs in Kosovo, "privatizing" socially owned Albanian enterprises into ownership by Serbs and Milosevic cronies, and generally establishing a police state in which Serbs ruled and Kosovar Albanians were subjects. Id. at 343-345. The Kosovar Albanians reacted by establishing a parallel society, led by Ibrihim Rugova, one of the intellectuals who led the 1981 student revolts. See Tim Judah, Kosovo: War and Revenge 66 (2000) (describing emergence of Rugova as leader of LDK). By 1992, they had declared independence, and held secret elections for their own republican assembly and government. Malcolm, supra, at 347. Rugova emphasized passive resistance to the Serbs, but after the Dayton Accords were signed in 1995 with no attention paid to Kosovo, resistance became more active. Id. at 353. By 1998, armed revolt was in full swing as the Kosovo Liberation Army ("KLA"), a guerrilla group organized to resist Serbian control of Kosovo, attacked Serb police stations, and raised money in public meetings in London and elsewhere to support recruitment and training of new KLA guerrillas in Albanian camps. See Judah, supra, at 102-103, 112-118 (tracing history of KLA). See also Chris Hedges, Kosovo's Next Masters?, Foreign Affairs, May/June 1999, at 24 (examining in detailed fashion the KLA's origins and operations as of late 1998 and early 1999).
As violence escalated, the international community finally became involved, supporting a cease fire mediated by Richard Holbrooke in August, 1998, and then imposing a political trusteeship over Kosovo after the NATO bombing campaign ended in June 1999. General Wesley K. Clark, Waging Modern War (2001) (describing background, conduct, and result of NATO bombing campaign in Kosovo).
[FN70]. S.C. Res. 1244, supra note 4, art. 5, P 10 (authorizing Secretary- General to establish civil administration for Kosovo).
[FN71]. Id. preamble.
[FN72]. Id. P 11(b).
[FN73]. Id. P 11(d).
[FN74]. Id. P 11(f).
[FN75]. East Timor has a long history with political trusteeship. In 1960, the United Nations General Assembly added East Timor to its list of non-self- governing territories, marking the beginning of a transition from governance by Portugal.
In 1974, Portugal attempted to establish a provisional government and a popular assembly to determine the status of East Timor. Civil war broke out between those who favored independence and those who advocated integration with Indonesia. Unable to control the situation, Portugal withdrew. Indonesia intervened militarily and integrated East Timor into its territory. The United Nations never recognized this integration, and both the Security Council and the General Assembly called for Indonesia's withdrawal. United Nations Mission of Support in East Timor ("UNMISET"), East Timor-UNMISET-Background, at http:// www.unmiset.org (last visited Jan. 20, 2004) [hereinafter "UNMISET Background" ].
[FN76]. S.C. Res. 1246, U.N. SCOR, 4013th mtg., U.N. Doc. S/RES/1246 (1999).
[FN77]. UN-sponsored talks beginning in 1982 resulted in a plebiscite rejecting proposed autonomy within Indonesia and preferring independence. Violence ensued at the instance of pro-integration militias, supported to some extent by Indonesian security forces.
[FN78]. UNMISET Background, supra note 75.
[FN79]. Id. UNTAET was established as "an integrated, multidimensional peacekeeping operation fully responsible for the administration of East Timor during its transition to independence." Resolution 1272 mandated that UNTAET:
[P]rovide security and maintain law and order throughout the territory of East Timor; to establish an effective administration; to assist in the development of civil and social services; to ensure the coordination and delivery of humanitarian assistance, rehabilitation of humanitarian assistance, rehabilitation and development assistance; to support capacity- building for self-government; and to assist in the establishment of conditions for sustainable development.
S.C. Res. 1272, U.N. SCOR, 4507th mtg. P 3, U.N. Doc. S/RES/1272 (1999) (identifying military component as part of UNTEAT) [hereinafter "S.C. Res. 1272]; see also id. P 9.
[FN80]. UNMISET Background, supra note 75.
[FN81]. S.C. Res. 1410, U.N. SCOR, 4534th mtg., U.N. Doc. S/RES/1410 (2002).
[FN82]. See United Nations Mission of Support in East Timor: Report of the Secretary-General, U.N. SCOR 58th Sess., Agenda Item 84, U.N. Doc. S/2003/944 (2003) (reporting on progress by the government of Timor-Leste).
[FN83]. In October 2001, an ad hoc coalition of forces, dominated by the United States, attacked Afghanistan with the explicit objective of displacing the Taliban which was then in control of the government. The military operations were justified as an exercise of the privilege of self-defense by the United States, and otherwise legitimate to end the Taliban's threat to international peace and security. The post-September 11 Security Council Resolutions 1377, 1378, 1383, and 1386 did not explicitly approve use of force to depose the Taliban government of Afghanistan. See S. C. Res. 1377, U.N. SCOR, 4413th mtg., U.N. Doc S/RES 1377 (2001) [hereinafter S.C. Res. 1377]; S.C. Res. 1378, U.N. SCOR, 4415th mtg., U.N. Doc. S/RES 1378 (2001) [hereinafter S.C. Res. 1378]; S.C. Res. 1383, U.N, SCOR, 4434th mtg., S/RES 1383 (2001) [hereinafter S.C. Res. 1383]; S.C. Res. 1386, U.N. SCOR, 4443th mtg., U.N. Doc. S/RES 1386 (2001) [hereinafter S.C. Res. 1386]. The closest to verbal approval is language in the preamble of S.C. Res. 1386: "Supporting international efforts to root out terrorism, in keeping with the Charter of the United Nations ...." S.C. Res. 1386, supra, preamble.
[FN84]. See Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions, Dec. 5, 2001, Bonn, Germany, available at http:// www.uno.de/frieden/afghanistan/talks/agreement.htm (last visited Jan. 20, 2004) [hereinafter "Bonn Agreement'].
[FN85]. Resolution 1401 established UNAMA for an initial period of one year, with a mandate and structure specified by the Secretary General in a report of March 18, 2002. See S.C. Res. 1401, U.N. SCOR, 4501st mtg., U.N. Doc. S/RES 1401 (2002).
[FN86]. The Secretary General's report to the Security Council summarizes the results of the Bonn Conference and proposed a structure for the United Nations presence in Afghanistan in accordance with UN responsibilities under the Bonn Agreement. The Situation on Afghanistan and Its Implications for International Peace and Security, Report of the Secretary-General, U.N. GAOR, 56th Sess., Agenda Item 43 P 9, U.N. Doc. A/56/875 (2002).
[FN87]. Decisions with respect to post-war Afghanistan were, no doubt, informed by the deliberation of a "Committee of Experts," convened in Nov. 2001, by Michael Scharf and Paul Williams to develop concepts for nation rebuilding in Afghanistan. See Michael P. Scharf & Paul R. Williams, Report of the Committee of Experts on Nation Rebuilding in Afghanistan, 36 New Eng. L. Rev. 709, 709 (2002). Drawing on experience in Haiti, Bosnia, Kosovo, Sierra Leone and East Timor, the Committee recommended that the goals be establishment of a non-chaotic and neutralized state identification of appropriate governing structures and implementation of intermediate sovereignty. Id. at 713-714.
[FN88]. Bonn Agreement, supra note 84, art. I, P 3.
[FN89]. Id., Annex 1, P 3.
[FN90]. Id. art. III (C)(1). Article II of the Bonn Agreement makes applicable the 1964 Constitution:
[T]o the extent that they are not inconsistent with this agreement or with international legal obligations to which Afghanistan is a party, existing laws and regulations or with those applicable provisions contained in the Constitution of 1964, provided that the interim authority shall have the power to repeal or amend those laws and regulations
Id. art. II, P 1.
[FN91]. The chairman, vice chairman, and other members of the interim administration were selected by participants in the "U.N. talks on Afghanistan," on the basis of professional competence, personal integrity, ethnic, geographic, and religious balance. Id. art. III (A)(3).
[FN92]. The emergency loya jirga was to be established by a "Special Independent Commission, comprising 21 members selected from lists of candidates submitted by participants in the UN talks on Afghanistan" as well as "Afghan professional and civil society groups." The United Nations was charged with assisting with the establishment and the functioning of the commission. Id. art. IV (1). A loya jirga "is a forum unique to Afghanistan in which, traditionally, tribal elders ... have come together to settle affairs of the nation or rally behind a cause. The phrase loya jirga is Pashto and means 'grand council."' Q & A: What is a Loya Jirga, BBC NEWS ONLINE, July 1, 2002, at http://news.bbc.co.uk/1/hi/world/south_asia/1782079.stm.
[FN93]. Bonn Agreement, supra note 84, art. I, PP 4-5.
[FN94]. Id. art. I, P5.
[FN95]. Id. art. I, P 6.
[FN96]. In an Annex, the participants in the UN talks on Afghanistan:
[R]equest the United Nations Security Council to consider authorizing the early deployment to Afghanistan of a United Nations mandated force. This force will assist in the maintenance of security for Kabul and its surrounding areas. Such a force could, as appropriate, be progressively expanded to other urban centers and other areas.
Id. Annex II, P 2.
[FN97]. Id. Annex II, P 3. In July 2002, the Secretary-General reported on a successful conclusion of the emergency loya jirga held June 11- 19, 2002, and reported on problems accompanying declining donor funding and continuing security problems, supporting his recommendation of a limited expansion of the International Security Assistance Force beyond Kabul. See The Situation in Afghanistan and Its Implications for International Peace and Security, Report of the Secretary-General, U.N. GAOR, 58th Sess., Agenda Item 43 PP2-4, U.N. Doc. A/56/1000 (2002).
[FN98]. The Situation in Afghanistan and Its Implications for International Peace and Security, supra note 86, at P 2 (2002).
[FN99]. However, the Secretary-General reported that "the transitional administration's attempts to fulfill its ambitious objectives have been stalled ... by limitations in its ability to impose its authority nationwide. The intended policy of replacing the existing provincial governors [and other provincial officers] has ... not been realized." Id. P 9. He also reported that the most serious challenge facing Afghanistan is the lack of security, and noted that progress on establishing a national police force was necessary in that regard. Id. PP 11-14.
[FN100]. In early October, delegates were being selected to vote on the proposed constitution. See Press Briefing by David Singh, Media Relations Officer, Office of Communication and Public Information, Update on the Constitutional Process (Oct. 5, 2003), at http://www.unama- afg.org/news/briefing/spokesman/2003/03oct05.htm (last visited Jan. 20, 2004).
[FN101]. The Situation in Afghanistan and its Implications for International Peace and Security, Report of the Secretary General, U.N. GAOR 57th Sess. PP 2-14, U.N. Doc. A57/850 (reporting on progress toward constitutional loya jirga and prospects for meeting 2004 deadline for elections).
[FN102]. S.C. Res. 1483, U.N. SCOR, 4761st mtg. P 1, U.N. Doc. S/RES/1483 (2003) [hereinafter "S.C. Res. 1483" ].
[FN103]. Stressing the right of the Iraqi people freely to determine their own political future
and control their own natural resources, welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible, and expressing resolve that the day when Iraqis govern themselves must come quickly ....
[FN104]. Noting the letter of 8 May 2003 from the Permanent Representatives of the United
States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the 'Authority') ....
[FN105]. Id. P 4.
[FN106]. Id. P 9.
[FN107]. For example, the Special Representative would work "intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognized, representative government of Iraq ...." Id. P 8(c). The UN Special Representative also is charged with "promoting economic reconstruction and the conditions for sustainable development," Id. P 8(e), and with "encouraging international efforts to contribute to basic civilian administration functions, promoting the protection of human rights, encouraging international efforts to rebuild the capacity of the Iraqi civilian police force, and encouraging international efforts to promote legal and judicial reform." Id. PP 8(f)-(i).
[FN108]. S.C. Res. 1510, U.N. SCOR, 4844th mtg., U.N. Doc. S/RES 1510 (2003).
[FN109]. "[T]the sovereignty of Iraq resides in the State of Iraq, reaffirming the right of the Iraqi people freely to determine their own political future and control their own natural resources, reiterating its resolve that the day when Iraqis govern themselves must come quickly ...." Id. preamble.
Determines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the Authority
Id. P 4.
[FN110]. The Resolution:
[U]nderscores ... the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognized and set forth in resolution 1483 (2003) ... which will cease when an internationally recognized, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority.
Id. P 1.
The resolution then "calls upon the Authority ... to return governing responsibilities and authorities to the people of Iraq as soon as practicable and requests the Authority, in cooperation as appropriate with the Governing Council and the Secretary-General, to report to the Council on the progress being made." Id. P 6.
[FN111]. The Resolution was clear on this point:
[T]he United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission in Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government ....
Id. P 8.
[FN112]. The Resolution:
Takes note of the intention of the Governing Council to hold a constitutional conference and, recognizing that the convening of the conference will be a milestone in the movement to the full exercise of sovereignty, calls for its preparation through national dialogue and consensus-building as soon as practicable and requests the Special Representative of the Secretary-General, at the time of the convening of the conference or, as circumstances permit, to lend the unique expertise of the United Nations to the Iraqi people in this process of political transition, including the establishment of electoral processes .
Id. P 10.
[FN113]. Mr. Gerson calls conquest "post surrender occupation." Allan Gerson, Israel, the West Bank and International Law 2 (1978).
[FN114]. S.C. Res. 1483, supra note 102, preamble (emphasis added).
[FN115]. See supra Part II.B.
[FN116]. Gerson, supra note 113, at 5.
[FN117]. It is not clear that contemporary commentators recognized any limiting norms. In hindsight, the legitimacy of control depended on the legitimacy of conquest which depended, in turn, on the legitimacy of war leading to the conquest. The legitimacy of war depended on the doctrines of jus ad bellum ("law as to war"). Jus ad bello is to be distinguished from jus in bello. Jus ad bello refers to the justification for going to war; jus in bello refers to permissible means of war once it has begun. If conquest resulted from an illegal war, the conquest was less legitimate than if it resulted from a "just war." Most modern analyses of the "law of war" relate to jus in bello because of the belief that the United Nations charter has codified and sharply limited jus ad bello.
[FN118]. See Gerson, supra note 113, at 6 & n. 17.
[FN119]. Id. at 3. Belligerent occupation often occurs contemporaneously with a cease fire but without abandonment of pre-conflict goals by either side. An authoritative commentary on the law of belligerent occupation antecedent to the 4th Geneva Convention was prepared by the Carnegie Endowment for International Peace and published in 1942, written by Ernst H. Feilchenfeld. See Ernst H. Feilchenfeld, The International Economic Law of Belligerent Occupation (Carnegie Endowment for International Peace, Division of International Law, Monograph No. 6, 1942). Professor Feilchenfeld positioned the law of belligerent occupation in the broader system of international law, distinguishing it from other types of changes and "rulership." In his analysis, changes in rulership that do not involve the assumption of control by another state are designated as "changes in government." Id. at P 4. Purely domestic revolutions are an example. "On the other hand, changes in rulership which involve assumption of control by another state or its rulers are designated and treated as 'territorial' changes." Id. P 8. Territorial changes in turn are subdivided into peacetime or wartime changes, with territorial changes occurring after and as a result of war referred to as "post war" changes. "Peacetime changes involving control falling short of full sovereignty are: peaceful penetration, the establishment of protectorates, financial control, the right to place garrisons in another country, and peaceful occupation." He continues to state that "complete changes of territorial sovereignty are known as state succession and are subject to ... special ... bod[ies] of rules." Id. P 9. He cites Section III of the Hague Regulations, comprising Articles 42-56 of the Regulations, as the primary source of the law of belligerent occupation. Id. PP 7-9.
[FN120]. Gerson, supra note 113, at 4.
[FN121]. Id. The duty to protect the status quo arises from international law's recognition of "that kind of precariousness which results from the fact that a war is still going on. No matter how unlikely a reversal of fortunes may be in fact, a territorial change obtained by a belligerent during and in the course of a war is not treated as final state succession, but as 'belligerent occupation."' Feilchenfeld, supra note 119, at 5.
[FN122]. See generally Geneva Convention Relative to Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 [hereinafter Geneva Convention].
[FN123]. Gerson characterizes Article 47 of the Geneva Convention as expressing "the same policy" as Article 43 of the Hague Regulations. Gerson, supra note 113, at 7. The Fourth Geneva Convention is "widely regarded as a codification of customary international law ... supplement[ing] ... the Hague Convention ... [and] Regulations." Ardi Imseis, On the 4th Geneva Convention and the Occupied Palestinian Territory, 44 Harv. Int'l L.J. 65, 66 (2003). Whether customary international law has modified the obligations of the Fourth Geneva Convention, is a matter of controversy. See Thomas R. Kleinberger, The Iraqi Conflict: An Assessment of Possible War Crimes and the Call for Adoption of an International Criminal Code and Permanent International Criminal Tribunal, 14 N.Y. L. Sch. J. Int'l & Comp. L. 69, 90-91 (1993) (explaining that during post war occupation of Germany, allied forces suspended many local laws, courts, government organs, and methods of education in a way inconsistent with the Hague Conventions, but justified the changes by claiming that the Nazi status quo was in itself violation of international law). "The Hague Conventions are still technically in force. As a practical matter though, they have given way to post World War II agreements, including the Geneva Conventions. ..." Id. at 91.
[FN124]. Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 42, 36 S.T.A.T. 2277, 1 Bevans 631 [hereinafter Hague Regulation].
[FN125]. Geneva Convention, supra note 122, art. 2.
[FN126]. Geneva Convention, supra note 122, art. 6.
[FN127]. Geneva Convention, supra note 122, arts. 47 and 61-77.
[FN128]. However "[i]f one belligerent conquers the whole territory of an enemy, the war is over, the enemy state ceases to exist, rules on state succession concerning complete annexation apply, and there is no longer any room for the rules governing mere occupation."
[FN129]. Joel Roberto, Property Rights and the Unified Germany: A Constitutional, Comparative, and International Legal Analysis, 11 B.U. Int'l L. J. 243, 267-271 (explaining that unconditional surrender presupposes total collapse of preexisting government, at which time international law allows complete subjugation of the state rather than belligerent occupation; merely because allies elected to exercise fewer than the rights they posses does not negate the appropriate treatment of their regime as sovereign).
[FN131]. Allan Gerson, Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank, 14 Harv. Int'l L.J. 1 (1973).
[FN132]. The appropriateness of concepts of belligerent occupancy rules which required a freezing of the status-quo-ante seemed questionable to Gerson, especially in light of the uncertain sovereignty of the West Bank before the 1967 War. Gerson derived the trustee-occupant theory starting from the British Mandate over Palestine. See generally id.
[FN133]. Id. at 40.
[FN134]. See Catherine A. Rogers, Proposals to Expel Palestinians from the Occupied Territories as Catalyst for a Civil Adjudication Campaign, 7 J. Gender Race & Just. 167, 180 n.57 (2003) (characterizing trustee-occupant theory as "championed primarily by Allan Gerson). "Professor Gerson's 'trustee- occupant' theory rests essentially on the personal authority of Professor Gerson himself, having no support in the relevant legal literature or the appraisals of territorial status made by competent international institutions and being unpersuasive as a matter of policy." Richard A. Falk & Burns H. Weston, The Relevancy of International Law to the Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada, 32 Harv. Int'l L. J. 129, 140-141 (1991). Reluctance to accept the trustee-occupant theory may be associated more with its association with Israeli control of the Palestinian territories in the Middle East than with its intellectual merits.
[FN135]. Gerson, supra note 131, at 51 (citing Bhutan and India as example). See generally Rights of Nationals of the United States in Morocco (Fr. v. U.S.), 1952 I.C.J. (discussing the status of American citizens in the French protectorate of Morocco). Black's defines a protectorate as:
A state which has transferred the management of its more important international affairs to a stronger state. It implies only a partial loss of sovereignty, so that the protected state still retains a position in the family of nations. Moreover, the protected state remains so far independent of its protector that it is not obliged to be a party to a war carried on by the protector against a third state, nor are treaties concluded by the protector ipso facto binding upon the protected state.
Black's Law Dictionary 1387 (4th ed., 1968).
[FN136]. One example of language used by the British East Africa Company, illustrates how protectorates were established:
[Name of Chief] hereby declares that he has placed himself and of his territories, countries, peoples, and subjects under the protection, rule and government of the Imperial British East Africa Company, and has ceded to the said company all its sovereign rights and rights of government over all his territories, countries, peoples and subjects, in consideration of the said Company granting the protection of the said company to him, his territories, countries, peoples and subjects, and extending to them the benefit of the rule and government of the said Company.
W. Michael Reisman, Reflections on State Responsibility for Violations of Explicit Protectorate, Mandate and Trusteeship Obligations, 10 Mich. J. Int'l L. 231, 238 (1989) (quoting language of standard contract). That this language was used at such a late date--1884-99-shows that the practices of subcontracting colonial administration, which were stamped out by the British Parliament in the middle part of the 19th century continued well beyond their reform of government of India.
[FN137]. Id. at 233-34.
[FN138]. See Vincent P. Bantz, The International Legal Status of Condominia, 12 Fla. J. Int'l. L. 77, 78 (1998).
[FN147]. Condominium also has been suggested as a solution to the disagreement between Israel and Palestine as to who should have sovereignty over Jerusalem: "On the context of a two-state solution, Jerusalem could form an undivided part of both states, constitute the capital of both states and be administered by an umbrella municipal council and local district councils. In the proper terminology of international law, the city would be a 'condominium' of Israel and Palestine." John V. Whitbeck, The Future of Jerusalem: A Symposium, the Road to Peace Starts in Jerusalem: The Condominium Solution, 45 Cath. U. L. Rev. 781, 783 (1996).
[FN148]. The author, assisted by his student at the time, Stuart P. Ingis, organized "Project Bosnia" at Villanova University School of Law in early 1996. Through Project Bosnia, the author and teams of law students at Villanova and then at Chicago-Kent College of Law, assisted Dayton-Accord institutions such as the Bosnian Ombudsman and Constitutional Court in their use of information technology, including personal computers and the Internet, to accelerate their progress in processing and deciding cases and to establish their legitimacy as pillars of the rule of law. These groups of law students also assisted the Bosnian Ministry of Justice in coordinating activities of subordinate cantonial ministries of justice, and connected the International Media Center in the Bosnian Serb city of Banja Luka to the Internet, making it easier for freelance journalists to function effectively.
Subsequently, the author organized "Operation Kosovo" at Chicago-Kent College of Law, where the author served as a dean. Under the Operation Kosovo framework, the author and teams of law and engineering students helped international organizations to use the Internet to coordinate refugee relief before and during the war. After the war the project coordinated technical assistance efforts associated with economic development and enterprise formation, political party development, and reform of legal institutions, especially those associated with legal education.
[FN149]. Before the League of Nations was established, the protectorate, condominium, and belligerent occupant concepts all involved a kind of trust concept: sovereignty was placed in trust, to be exercised by the trustee. British imperial policy for the most part did also but French imperial policy did not and much military conquest ended with annexation.
[FN150]. See infra Part I.A.5.d.
[FN151]. See David Rohde, End Game 164 (1997) (detailing how massacres in Srebrenica, Bosnia, were made possible by Dutch peacekeepers' failure to protect victims). UN civilian control over military forces was blamed-- appropriately--for one security disaster after another, most dramatically culminating in the massacre in Srebrenica, where civilian UN authority withheld military action that would have permitted the Dutch peacekeepers to oppose the massacre, although international civilian control was retained through NATO.
[FN152]. A major reason for the separation--in Bosnia and the other examples considered in this section--is the belief by military lawyers that constitutional concerns would arise if U.S. military forces reported to a foreign civilian. See Major J.D. Godwin, NATO'S Role in Peace Operations: Reexamining the Treaty After Bosnia and Kosovo, 160 Mil. L. Rev. 1, 23 n.114 (1999) (noting longstanding questions about constitutionality of placing U. S. forces under foreign command).
[FN153]. S.C. Res. 1386, supra note 83, at P 4.
[FN154]. S.C Res. 1272, supra note 79.
UNTAET and the multinational force deployed pursuant to resolution 1264 (1999) [shall] cooperate closely with each other, with a view also to the replacement as soon as possible of the multinational force by the military component of [UNTAET], as notified by the Secretary-General following consultations with the leadership of the multinational force, taking into account conditions on the ground.
[FN155]. See, e.g., S.C. Res. 1244, supra note 4, at P 6 ("Requests the Secretary-General to instruct his Special Representative to coordinate closely with the international security presence to ensure that both presences operate towards the same goals and in a mutually supportive manner ...."). Paragraph 2 of Annex 2 of Resolution 1244 also specified that the "security presence" operate under unified command and control. S.C. Res. 1244, supra note 4, at Annex 2, P 2.
[FN156]. See generally Henry H. Perritt, Jr., Policing International Peace and Security: International Police Forces, 17 Wis. Int'l L.J. 281 (1999).
[FN157]. "The difficult task will of course be to determine which entities legitimately express the will of the Afghan people." Scharf & Williams, supra note 1, at 714.
[FN158]. Webster's New World Dictionary 807 (2d coll. ed., 1974).
[FN159]. Cf. Randy E. Barnett, Constitutional Legitimacy, 103 Colum. L. Rev. 111, 111 (2003) ("Neither 'consent of the governed' nor benefits received' justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, [without] consent, (b) if laws are made by procedures which assure that they are not unjust.").
[FN160]. Nigel Purvis, Critical Legal Studies in Public International Law, 32 Harv. J. Int'l L. J. 81, 111 & n.135 (1991) (citing and quoting in part Max Weber, Economy and Society 31-38 (Guenther Roth & Claus Wittich eds., 1968) ("distinguishing between perceived legitimacy and the qualities of legitimacy in an order itself.").
[FN161]. Id. at 112 (describing anthropological self-validation).
[FN162]. One possible dimension on which convergence occurs is human rights. It appears on the international list, and encompasses at least two of the elements on the internal list.
[FN163]. Slobodan Milosevic is an example. See generally Louis Sell, Slobodan Milosevic and the Destruction of Yugoslavia (2002).
[FN164]. Iraq provides a clear example of insufficient international legitimacy resulting in insufficient resources. Kosovo is an example of ample resources due to broad international legitimacy.
[FN165]. Neorealists might argue that international legitimacy does not matter--only power matters. But international legitimacy does matter. Even neorealists would admit that international legitimacy matters to the extent that its absence motivates other states to intervene militarily to block a trusteeship, through conventional, guerrilla, or terrorist forces. Beyond that, a successful trusteeship is almost certain to require broad multilateral economic and logistical support. U.S. efforts to involve other countries in sharing the burden of post-war security efforts in Iraq, and efforts to draw economic support for Bosnia, Kosovo, and Afghanistan from countries around the world are examples. If states and their populations do not perceive a trusteeship to be legitimate, they are unlikely to be generous in supporting it. Of course, some trusteeships--or interventions--do not depend on support from more than one power. U.S. intervention in Panama and Haiti are examples.
[FN166]. Intellectual movements crystallizing in the 19th century narrowed the legitimate scope for international intervention. Prior to the 19th century, the international community fully accepted military conquest, this acceptance mitigated only by balance-of-power concepts which protected the integrity of the state system adopted in the Treaty of Westphalia in 1648. Eventually, more formal doctrines of sovereignty in international law began limiting state intervention. While sovereignty legitimated the unilateral determination of whether another state was guilty of violating international law, respect for sovereignty also de-legitimated intervention into the affairs of one state by another. By the Twentieth Century, respect for self- determination also de-legitimated imperial conquest. Conversely, international human rights law, coupled with respect for self-determination in some situations such as Yugoslavia, created new bases for legitimate international intervention. Support grew for the idea that it was not legitimate for one state to hold on to territory the inhabitants wished to use to form their own state. This also supported the idea that it was legitimate for third states or the international community to intervene to make independence a reality.
This trend should not be accepted too uncritically. An important part of the struggle over international reaction to the breakup of Yugoslavia and to the crisis in East Timor was the conflict between respect for sovereignty of pre- existing states on the one hand and self-determination and human rights on the other. In all of the Yugoslav cases and in the case of East Timor, some manifestation of "consent" by the state defending its territory helped legitimate international intervention. Such was not the case in Afghanistan or Iraq.
[FN167]. As international criteria for legitimate intervention narrowed, domestic politics in intervening states have become more important in shaping state reaction. Bosnia, Kosovo, and East Timor illustrate how state support for intervention and eventual political trusteeship resulted from campaigns to shape public opinion within important international states, such as Britain, Germany, France, and the United States. Woodward, supra note 53, at 283 (referring to influence of Croat lobby in U.S.).
These trusteeships support the accuracy of the scholars associated with the "domestic politics" branch of liberal international relations theory. "In its modern iteration, liberal international relations theory has come to stand for the straightforward proposition that domestic politics matter." Oona A Hathaway, Do Human Rights Treaties Make a Difference? 111 Yale L.J. 1935, 1952 (2002). Trusteeships also illustrate the incompleteness of neorealism in international relations theory, which treats states as impermeable entities, making rational decisions as though each state were an individual.
International legitimacy is now built or undermined by more than just the arguments made by diplomats and chiefs of government to their counterparts around the world; it is also shaped by public perceptions of human suffering and justice.
[FN168]. Phillip Trimble noted the importance of integrating international law into the study of international relations and political science:
The Holy Grail of politically-oriented international law scholars has been to reconnect our discipline with the study of political science and international relations, a connection lost since at least the 1950s. Some prominent international relations scholars flatly rejected law as anything worth considering, while political scientists generally became mired in methodological thickets as irrelevant as the old positivist scholarship. In the past decade, however, the disciplines have been fruitfully reunited. Anne-Marie Slaughter and Ken Abbott proposed agendas, and several scholars have used the two disciplines to elucidate particular areas of law. Most impressively, Michael Byers has studied power and customary international law using a sophisticated understanding of realism, regime theory, and traditional international law scholarship to show ways in which law makes a difference in state behavior.
Phillip R. Trimble, The Plight of Academic International Law, 1 Chi. J. Int'l Law 117, 122-123 (2000). See also Anne-Marie Slaughter, International Law and International Relations Theory: A Dual Agenda, 87 Am. J. Int'l L. 205 (1993); Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int'l L. 335 (1989); Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 Am. J. Int'l L. 367 (1998) .
[FN169]. Realists in international relations theory dispute the existence-- or in any event the efficacy--of international law. See James C. Hsiung, Anarchy and Order: The Interplay of Politics and Law in International Relations 5-26 (1997) (criticizing neorealist position and arguing that international law is an "integral part of international politics"). However, idealists or liberal or institutionalist international relations scholars and international lawyers claim that international law plays an important role in determining the behavior of states and other actors in the international system.
[FN170]. Commonly, appeals to public opinion are strengthened by claims that the foreign policy of that state is supported by international law, and that the antagonist position of other states violates international law. See Jonathan Zasloff, Law and the Shaping of American Foreign Policy: From the Gilded Age to the New Era, 78 N.Y.U. L. Rev. 239, 323 (2003) (all law is enforced mostly through public opinion); Mortimer "Tim" Sellers, International Law in Antiquity by David J. Bederman, 15 Emory Int'l L. Rev. 521, 525 (2002) ("Then, as now, unfavorable public opinion would punish most violations of international law." (citing David J. Bederman, International Law in Antiquity 81 (2001)).
[FN171]. See Gregory P. Noone, The History and Evolution of the Law of War Prior to World War II, 47 Naval L. Rev. 176 (2000) (citing Clausewitz and Bismark ridiculing the "law of war"). This broad legitimacy for war was subject to limited and largely meaningless legal restrictions on "reprisal."
The doctrine that international law permits war and reprisals only as retributive measures for a wrong that has been perpetrated, that any other war represents a violation of international law, derives, as a matter of fact, not merely as the natural consequence of the idea of international law as a system of law, but it also corresponds to the facts that constitute international law.
Hans Kelsen, The Legal Process and International Order 14-15 (1935) (likening doctrine to vendetta; state whose rights are impugned itself retaliates at its own discretion). Kelsen argued that disarmament was unrealistic and premature because war was the only available means of coercion to enforce international law; war could be outlawed only when the international legal system had matured to the point that an international police force or some other means of collective coercion was available. Id. at 24-25.
Prior to World War I, a reprisal was unquestionably permissible in international law if the following conditions were met: (1) the reprisal was in response to a previous violation of international law (or "international delinquency"); (2) the injured state first demanded redress or compensation which was denied or not acted upon; and (3) the act of reprisal was in proportion to the injury.
[FN172]. See Christopher R. Rossi, Jus Ad Bellum in the Shadow of the 20th Century, 15 N.Y.L. Sch. J. Int'l & Comp. L. 49, 75-76 (1994) (tracing interplay of natural law and positivism as concepts of jus ad bellum shifted from the mid-19th century to the early 20th century).
[FN173]. Much confusion and inconsistency exists in modern writing with respect to use of the Latin words bello and bellum. Bello/bellare is a first- conjugation intransitive verb meaning "to wage war." Bellum is a second- declension noun meaning "war." As a second-declension noun, its accusative form is bellum, and its dative form is bello. Hence the correct phrases are "jus ad bellum," signifying "justice in going to war," and "jus in bello," signifying "justice in warfare."
[FN174]. The number of casualties had been greatly increased by improved technologies of warfare.
[FN175]. See Tania Voon, Closing the Gap Between Legitimacy and Legality of Humanitarian Intervention: Lessons from East Timor and Kosovo, 7 UCLA J. Int'l L. & For. Aff. 31 (2002) (arguing that international law should accommodate international interventions aimed at ending or preventing human rights abuses).
[FN176]. Opinio juris refers to a motive for state action that links the action to the norms of international law, including opinions that the conduct is warranted by existing law, or that the conduct is intended to change law.
[FN177]. U.N. Charter art. 73 (declaring obligations of members responsible for territories "whose peoples have not yet attained a full measure of self- government") [emphasis added]; Cf. Universal Declaration of Human Rights art. 28 (entitled to social and international order in which rights and freedoms of Declaration can be fully realized); Int'l Covenant on Civil and Political Rights art. 1 ("all peoples have the right of self-determination"); Helsinki Final Act art. 8 (signatories will respect "equal rights of peoples and their right to self-determination, acting ... in conformity with ... the relevant norms of international law, including those relating to territorial integrity of States"); Inge V. Porter, Note, Two Case Studies in Self-Determination: The Rock and the Bailiwick, 4 San Diego Int'l L.J. 339 (2003).
[FN178]. See Helsinki Final Act art. 8 (signatories will respect "equal rights of peoples and their right to self-determination, acting ... in conformity with ... the relevant norms of international law, including those relating to territorial integrity of States.").
[FN179]. Restatement (Third) of Foreign Relations Law of the United States § 201 cmt. a (1987) (noting that definition is identical to that provided in the Montevideo Convention). Under Article 1 of the Montevideo Convention on Rights and Duties of States, adopted in 1933, a state must have a permanent population, defined territory, a government, and a capacity to enter into treaties. Convention Between the United States of American and Other American Republics on the Rights and Duties of States, Dec. 26, 1933, art. 1, 49 Stat. 3097, 3 Bevans 145. See also Bengt Broms, States, in International Law: Achievements and Prospects 44 (Mohammed Bedajaoui ed., 1991).
[FN183]. Mohammed Bedjaoui, General Introduction, in International Law: Achievements and Prospects 44 (Mohammed Bedajaoui ed., 1991). See also Legal Consequences of Security Council Resolution 276, in Conjunction with Namibia (I.C.J. 1975).
[FN184]. See Grant, supra note 180, at 443-44 (describing Declaration of Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union).
[FN185]. Id. at 443 (citing Opinion 4 on International Recognition of the Socialist Republic of Bosnia Herzegovina by the European Community and its Member States, 31 I.L.M. 1501 (Badinter Conference, 1992)).
[FN186]. Id. at 443 (describing Opinion 4).
[FN187]. International political and legal history abound with examples of colonies, protectorates, mandate territories, vassal states, condominia, autonomy within imperial structures, and trust territories in which sovereignty over one territory was divided between two different states, as Part I.B explains. Increasingly commentators are fleshing out modern concepts of "intermediate sovereignty" or "transitional sovereignty." See Scharf & Williams, supra note 1, at 717 (employing terms to describe desirable approach to Afghanistan).
[FN188]. In all these cases, consent was encouraged by successful military operations.
[FN189]. At the time of the political trusteeship, Bosnia had already declared independence and had been recognized as a state by the United States, among others. See Part II.B.a.1 (discussing touchstones for statehood and sovereignty).
[FN190]. The political trusteeship is evidenced by the involvement of the international community and its exercise of power overriding decisions of the local Bosnian institutions.
[FN191]. The UN Charter does not explicitly give the Security Council, or any other organ of the UN, the authority to displace sovereignty and put a state or portion thereof in trusteeship. The trusteeship provisions of the Charter, discussed in Section I.4, address the winding down of the post- colonial system and do not easily support the establishment of a new trusteeship--especially an involuntary trusteeship.
[FN192]. U.N. Charter art. 39.
[FN193]. U.N. Charter art. 42.
[FN194]. See supra Part I.B.1.
[FN195]. Judah, supra note 69, at 275 (2000).
[FN196]. The "soft" role in Bosnia evolved into a "harder" role.
[FN197]. U.N. Charter art. 42.
[FN198]. As with Iraq's invasion of Kuwait.
[FN199]. See Derek Jinks, Toward an Institutional Theory of Sovereignty, 55 Stan. L. Rev. 1749, 1779 (2003) (describing "conceptualization of massive human rights violation as a threat to international peace and security").
[FN200]. Until the 20th century, it was legitimate internationally to displace sovereignty for purely economic purposes, gaining access to raw materials, labor, or transportation routes. That has faded as a legitimate ground for intervention into the affairs of another state. Two exceptions might be the efforts to justify British-French involvement to keep the Suez Canal open, and American involvement to keep the Gulf open during conflicts involving Iraq and Iran.
[FN201]. See supra note 83.
[FN202]. As Fareed Zakaria has observed, and as experience in Bosnia teaches, democratic elections are accepted uncritically as the talisman of both international and internal legitimacy.
[FN203]. See supra Part II.B.1.a.2 for an analysis of the role of self- determination in international law.
[FN204]. Part II.C, infra, considers the goal of building a liberal democracy. The growing practice of Rule of Law reform and other forms of technical assistance has been accompanied by a shift of goals from mere economic development to creation of liberal democracy. See Jacques deLisle, Lex Americana? United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond, 20 U. Pa. J. Int'l Econ. L. 179, 308 (1999) (discussing shift of goals to development of liberal democracy).
[FN205]. See Anthony Sammons, The "Under-Theorization" of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts, 21 Berkeley J. Int'l L. 111, 120 (2003) (noting current consensus that intervention to remedy serious human rights violations is legitimate).
[FN206]. See Patrick E. Tyler, Iraqi Groups Badly Divided Over How to Draft a Charter, N.Y. Times, Sept. 30, 2003, at A10 (discussing concerns that process for developing constitution and holding elections may stall).
[FN207]. See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, U.N. SCOR, PP 66-68, U.N. Doc S/2003/675 (2003) (explaining why international community opposes calls for resolving final status quickly).
[FN208]. S.C. Res. 1031, U.N. SCOR, 3607th mtg. P 7, U.N. Doc. S/RES/1031 (1995) (welcoming commitment by parties to Dayton Accords to respect human rights, and commitment of international organizations to monitor protection of human rights).
[FN209]. See S.C. Res. 1244., U.N. SCOR, 4011th mtg. P 11(j), U.N. Doc. S/RES/1244 (1999) (identifying protection of human rights as a responsibility of International Civil Presence (political trustee)).
[FN210]. See S.C. Res. 1272, U.N. SCOR, 4057th mtg., preamble, U.N. Doc. S/RES/1272 (1999) (expressing concern about human rights violations).
[FN211]. S.C. Res. 1401, U.N. SCOR, 4501st mtg. P4, S/RES/1401 (2002) (suggesting that international aid in Afghanistan should be directed toward those areas where local authorities commit to respect human rights); U.N. S.C. Res. 1483, U.N. SCOR, 4761st mtg., preamble, U.N. Doc. S/RES/1483 (2003) (stressing need to build institutions that respect human rights and to apprehend those responsible for "atrocities"); Id. at P 8(g) (authorizing UN presence in Iraq to protect human rights).
[FN212]. These two propositions arise from the reality that if an actor embraces a goal and then acts so as to undermine that goal, the actor's conduct is unlikely to be perceived as legitimate.
[FN213]. On Elections for the Assembly of Kosovo, U.N.M.I.K Reg. 2001/33, U.N. SCOR, § 4.2, U.N.M.I.K. Doc. UNMIK/REG/2001/33 (2001) (allocating 20 seats in 120-member Assembly to non-Albanian parties).
[FN214]. Amending U.N.M.I.K. Reg. No. 2000/16, As Amended, on the Registration and Operation of Political Parties in Kosovo, U.N. SCOR, § 2.2 (e), U.N.M.I.K. Doc. UNMIK/REG2002/8 (2002) (requiring political parties to commit themselves to human rights and to ethnic tolerance).
[FN215]. On a Constitutional Framework for Provisional Self-Government in Kosovo, U.N.M.I.K Reg. 2001/9, U.N. SCOR, § 9.1.3(b), U.N.M.I.K. Doc. UNMIK/REG/2001/9 (2001) (reserving 20 of the 120 seats in the Assembly for representatives of non-Albanian ethnic groups).
[FN216]. See Whitney Mason, Standards Put Up for Discussion, Focus Kosovo, June 2003, at 10, available at http:// www.unmikonline.org/pub/focuskos/june03/focuskprist4.htm (descri-bing debate over "standards before status" policy) (last visited Jan. 20, 2004).
[FN217]. See Restatement, supra note 179.
[FN218]. Peacebuilding in Afghanistan, Int'l Crisis Group Asia Report No. 64 (Int'l Crisis Group, New York, N.Y.), Sept. 29, 2003, at 12 (describing tendency to rely on traditional institutions because the government cannot provide results).
[FN219]. Paul H. Brietzke, Self-Determination, or Jurisprudential Confusion: Exacerbating Political Conflict, 14 Wis. Int'l L. J. 69, 80 n. 32 (1995) (identifying charisma as one source of legitimacy). See also Ann Seidman & Robert B. Seidman, Drafting Legislation for Development: Lessons from a Chinese Project, 44 Am. J. Comp. L. 1, 5 n.24 (1996) (characterizing Max Weber as concluding that all revolutionary regimes achieve their initial legitimacy because of the charisma of a great leader); Antonio F. Perez, On the Way to the Forum: The Reconstruction of Article 2 (7) and Rise of Federalism Under the United Nations Charter, 31 Tex. Int'l L. J. 353, 384-385 (1996) (explaining how Max Weber's conceptual categories of charisma, tradition, and legality form the starting point for modern discussions of legitimacy); see also William Thomas, Gurus and Guerrillas, Religious Fundamentalism and Dispute Resolution, 4 Harv. Negot. L. Rev. 115, 128 (1999) (discussing role of charisma and establishing new sources of legitimacy at the expense of preexisting or normative order).
[FN220]. This is not to say that Thaci, Haradinaj and Rugova are inhibited in criticizing UNMIK as the trustee. The point is that all three support continued international engagement amounting to some form of trusteeship.
[FN221]. Part II.B.2.i, infra, notes that significant internal legitimacy may attach to a political trustee or indigenous leader who shows promise of bringing an end to group conflict.
[FN222]. See, e.g., S.C. Res. 1410, U.N. SCOR, 4534 mtg., preamble, U.N. Doc. S/RES/1410 (2002).
[FN223]. As John Leubsdorf explains:
[I]nviting punishment was sound politics. It inspired many others to follow [Gandhi] in breaking laws without violence and accepting the penalties. About sixty thousand people were jailed after his march to the sea, as were comparable numbers in later campaigns. This strained the personnel and the finances of the English administration, while weakening its legitimacy in India and elsewhere.
John Leubsdorf, Gandhi's Legal Ethics, 51 Rutgers L. Rev. 923, 932 (1999).
Michael J Klarman provides an example of how tactics of nonviolent demonstration designed to provoke and compel authorities to respond violently led to a political response that was sympathetic towards the protestors:
[Martin Luther] King and his lieutenants devised the strategy of "creative tension," pursuant to which peaceful civil rights demonstrators would provoke, and then passively endure, violent assaults from southern law enforcement officers and unofficial mobs, with the hope of reaping a public opinion windfall from a horrified viewing audience. The success of this strategy required both that the demonstrators remain nonviolent, thus identifying their adversaries as the indisputable initiators of any violence, and that their objectives be regarded as entirely legitimate .... But the success of creative tension equally depended upon the cooperation of public officials such as Bull Connor in Birmingham and Jim Clark in Selma, who could propel the civil rights movement forward by so brutalizing peaceful demonstrators as to mobilize national opinion behind a legislative assault upon Jim Crow.
Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 143-44 (1994).
[FN224]. Norman Davies, Europe: A History 828-29 (1996).
[FN225]. Thomas Hobbes' political philosophy justified the sovereign in terms of the need to establish and preserve order. Without effectiveness in establishing order, no justification exists for formal sovereignty in the Hobbesian framework. Thomas Hobbes, Leviathan 129 (1962) (noting that governmental power must be great enough to overcome the natural tendency to "rob and spoil one another").
[FN226]. A. Richard M. Blaiklock & Ronald J. Krotoszynski, Jr., Enhancing the Spectrum: Media Power, Democracy, and the Marketplace of Ideas, 2000 U. Ill. L. Rev. 813, 862 (referring to aphorism about Mussolini's efficiency in governing Italy).
[FN227]. Ronald N. Johnson & Gary D. Libecap, Courts, a Protected Bureaucracy, and Reinventing Government, 37 Ariz. L. Rev. 791, 818 n.177 (1995) (quoting Thomas M. Guterbock, Machine Politics in Transition: Party and Community in Chicago, 236 (1980)).
[FN228]. See Securing Afghanistan: The Need for More International Action, Int'l Crisis Group Briefing Paper (Int'l Crisis Group, New York, N.Y.), Mar. 15, 2002, at 12.
[FN229]. Id. at 3 ("Afghans are already expressing nostalgia for the relative security and stability that were present when the Taliban controlled their areas.").
[FN230]. The author was in Sarajevo on three occasions from 1996-97 (August 1996, November 1996, and November 1997). Throughout this period, running water was intermittent and electricity interruptions were common and unpredictable.
[FN231]. See supra Part I.A.5.a (discussing Sintra Declaration, authorizing more aggressive intervention by UN High Representative).
[FN232]. See generally Governing Iraq, Int'l Crisis Group Middle East Report No. 17 (New York, N.Y.), Aug. 25, 2003.
[FN233]. See generally High Representative's Decision Archive, at http:// www.ohr.int/decisions/archive.asp (last visited Jan. 20, 2004).
[FN234]. See generally United Nations Interim Administration Mission in Kosovo, at www.unmikonline.org (last visited Jan. 20, 2004).
[FN235]. See generally Afghan Transitional Government, at http:// www.afghangovernment.com (last visited Jan. 20, 2004).
[FN236]. See generally Web Site for the Coalition Provision Authority, at http://www.cpa-iraq.org (last visited Jan. 20, 2004).
[FN238]. See Sandra Day O'Connor, Reflections on Preclusion of Judicial Review in England and the United States, 27 Wm. & Mary L. Rev. 643, 657-658 (1986) (noting and evaluating claim that rule of law requires judicial review of administrative decisions); Leszek Garlicki, Constitutional and Administrative Courts as Custodians of the State Constitutions The Experience of East European Countries, 61 Tul. L. Rev. 1285, 1290 (1987) (asserting that judicial review is an aspect of rule of law, but mechanisms for review of administrative decisions vary widely); Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power Over Statutory Interpretation, 96 Nw. U. L. Rev. 1239, 1246 n.28 (2002) (reviewing competing arguments as to whether judicial review of agency decisions is a necessary element of rule of law).
[FN239]. See Mahendra P. Singh, German Administrative Law in Common Law Perspective 7-8 (1985) (decisions of administrative courts cannot be questioned in other courts, but, unlike administrative tribunals in France, German administrative courts are part of the judiciary.). The French administrative court system includes the Tribunaux Administratifs, the Trial Courts, the Cours Administratives d'Appel, and the Conseil d'Etat at the top; Farhad Ghaussy, Who Protects the Stranger? The French Dual Court System Confronts the Politics of Immigration, 7 UCLA J. Int'l L. & For. Aff. 1, 8 (2002) (describing French administrative court structure).
Another author describes the functioning of the administrative judiciary organs in France:
[T]he administrative tribunals and the Conseil d'Etat are formally separate from the (ordinary) judiciary and are formally part of the executive power .... They are not called "courts" and their members are not called "judges." Thus the separation of powers is formally observed, while the legality of French executive/administrative acts receives the sort of 'judicial' review of legality that democratic justice everywhere requires.
John Henry Merryman, The French Deviation, 44 Am. J. Comp. L. 109, 111 (1996). Administrative justice is a matter of public law and is enforced by a system of administrative courts entirely separate from the regular courts, indeed not considered part of the judiciary. In the United States, the ordinary federal courts review administrative agency decisions. See 5 U.S.C. § § 702, 704 (2003).
[FN240]. See Van Boxel v. Journal Co. Employees' Pension Trust, 836 F.2d 1048, 1049 (7th Cir. 1987) (stating general rule).
[FN241]. Consistent with its approach to APA analogies, the article uses the term "agency" to refer to UNMIK.
[FN242]. See Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 882 (1990) (discussing ripeness and standing requirements in actions to review administrative agency decisions); Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 579-81 (1985) (finding ripeness and standing requirements of Article III of the Constitution satisfied).
[FN243]. The APA embraces the latter approach. "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. The APA makes no attempt to enumerate types of "final agency action." Substantial case law has developed, however, on what qualifies as "legal wrong" and "adversely affected or aggrieved." In Ass'n of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150 (1970), the Supreme Court interpreted the "adversely affected ..." branch of this section to allow review when a party seeking review can show adverse effect to interests within the zone protected by the statute under which he seeks review. Id. at 156-57.
[FN244]. The burden is on the agency to establish the rationality of its decision. Rationality essentially means logical connection between articulated policy principles and factual propositions, on the one hand, and the conclusions drawn, on the other.
[FN245]. See Henry H. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1279-95 (1975) (identifying elements of procedural due process).
[FN246]. See generally Ombudsperson Institution in Kosovo, at http:// www.ombudspersonkosovo.org (last visited Jan. 20, 2004). The Kosovo Ombudsperson, has asserted competency to consider complaints against UNMIK. UNMIK Regulation 2001/9, Art. 10.1 gives the Ombudsperson competence to hear complaints of "abuse of authority by any public authority in Kosovo." U.N.M.I.K. Reg. 2001/9, supra note 215, at § 10.1. This is the constitutional framework document. It does not define "public authority." The earlier regulation establishing the Ombudsperson institution, U.N.M.I.K Reg. 2000/38, U.N.M.I.K. Doc. UNMIK/REG/2000/38 § 1.2 (2000), gave the Ombudsperson over "actions constituting an abuse of authority by the interim civil administration or any emerging central or local institution," a narrower mandate. As of Jan. 26, 2003, nine of the nineteen reports posted on the Ombsperson's website, www.ombudspersonkosovo.org, involved complaints against UNMIK. See Ombudsperson Institution in Kosovo, at http:// www.ombudspersonkosovo.org/reportsdec.htm (last visited Jan. 20, 2004)
[FN247]. Special Report No. 1: On the Compatibility with Recognized International Standards of UNMIK Regulation No. 2000/47, Ombudsperson Institution in Kosovo, Apr. 26, 2001, at http:// www.ombudspersonkosovo.org/reports_special.htm (last visited Jan. 22, 2004). The Report observes that:
[T]his grant of immunity creates an insurmountable procedural bar to any legal process in any territory at any time to KFOR and UNMIK as institutions, as well as to their property, funds and assets (Sections 2.1 and 3.1 of the Regulation, respectively) to locally recruited KFOR personnel in respect of words spoken and acts performed by them in carrying out tasks exclusively related to their services to KFOR (Section 2.3 of the Regulation) and to international and locally recruited UNMIK personnel in respect of all acts performed by them in their official capacity (Section 3.3 of the Regulation).
Id. para. 21.
It found however that "the rationale for classical grants of immunity, however, does not apply to the circumstances prevailing in Kosovo, where the interim civilian administration (UNMIK) in fact acts as a surrogate state." Id. para. 23. It further found that executive and legislative branches of government must be subject to oversight by an independent judiciary. Id. para. 24. It also found that the yet-to-be-established Claims Commissions envisioned under § 7 of the UNMIK immunity regulation did not comply with the European Convention on Human Rights requirements for independent and impartial tribunals. Id. para. 78.
[FN248]. It is generally, though not universally, accepted that the Security Council has the power to establish judicial bodies, such as the International Criminal Court for the Former Yugoslavia.
[FN249]. However, it is interesting to speculate how the United States would react to the idea of a Security Council-appointed court to review the actions of the U.S.-British occupying authority in Iraq.
[FN250]. Much of this work overlaps with the development of a liberal democracy, considered supra in Part II.C. Political trustees must develop the institutions of a liberal democracy in order to develop internal legitimacy for local institutions.
[FN251]. It now is generally accepted that the Shah was installed by the CIA after it helped overthrow Premier Mohammed Mossadeq. See CIA Documents on the 1953 Coup in Iran, available at http://www.payk.net/politics/cia- docs/main.html (last visited Jan. 20, 2004).
[FN252]. In some sense the Shah was the local client of a short-lived and clandestine political trusteeship over Iran. See Relations Between America and Iran, at http:// www.cohums.ohiostate.edu/english/People/odlin.1/courses/571/ameriran.htm (last visited Oct. 3, 2003) (discussing the growing repression by the Shah that led to popular revolt which was reinforced by Islamic traditionalists).
[FN253]. See Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (2003); see also Susan L. Woodward, Balkan Tragedy 124-125 (1995).
[FN254]. See supra, Part II.D.3 for a discussion.
[FN255]. The "constitutional framework" in Kosovo simply was imposed unilaterally by UNMIK. Apparently, it was thought that a territory not yet an independent state could not have a constitutional referendum.
[FN256]. "I cannot conceive a greater loss to a man than the loss of his self-respect." Louis Fisher, The Life of Mahatma Gandhi 110 (1950) (quoting Gandhi on the occasion of his leading a demonstration against South African measures that stripped civil rights from Indian minority).
[FN257]. For a discussion on the tendency of promoters of democracy to use American template for all situations, without regard to their differences, see Thomas Carothers, Aiding Democracy Abroad: The Learning Curve 97 (1999).
[FN258]. See John Tierney, Iraqi Family Ties Complicate American Efforts for Change, N.Y. Times, Sept. 28, 2003, available at http:// www.nytimes.com/2003/09/28/international/middleeast/28CLAN.html (last visited Jan. 19, 2004) (reporting that strong family bonds, reinforced by 50% of marriages between first or second cousins, leads to widespread nepotism inconsistent with Western ideal of liberal democracy based autonomous individuals committed to public good).
[FN259]. See Securing Afghanistan: The Need for More International Action, Int'l Crisis Group Briefing Paper (Int'l Crisis Group, New York, N.Y.), Mar. 15, 2002, at 12.
[FN260]. See Jeff Madrick, An Extreme Plan for Iraq, N.Y. Times, Oct. 2, 2003, at C2 (reporting on protests by local business against aggressive plan for reforming Iraq economy, particularly focused on low import barriers and no barriers to foreign investment).
[FN261]. See Eric Chaney, Institutional Inertia: Political Legitimacy in Muslim Iberia, (2003) (unpublished honors thesis, Stanford University) (electronic version available at www-econ.stanford.edu/academic/honors_ theses/theses_2003/chaney.pdf) (arguing that Islamic religious ideology had to compete with temporal and pragmatic factors as sources of legitimacy for Muslim rulers of Spain who ultimately were defeated by Christian forces); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2113-2114 (2003) (detailing how religions other than state religions were discouraged because they tended to undermine legitimacy of state); see also Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev. 1047 (1996) (asserting that one motive for Reformation was desire of rulers to use national religions to legitimate their own rule); Madawi Al-Rasheed, A History of Saudi Arabia 51 (2002) (discussing how Wahhabi religious leaders and Ibn Saud provided critical support for the rise of each other).
[FN262]. See Fred Coleman, The Decline and Fall of the Soviet Empire, Forty Years That Shook the World 278-279 (1996) (discussing facets of nationalism that confronted Soviet rulers). Karin VonHippel, The Resurgence of Nationalism and Its International Implications, in Order and Disorder After the Cold War 101, 102-105 (Brad Roberts, ed., 1995) (explaining how World War I unleashed nationalism as continuing challenge to world order).
[FN263]. "[T]he role of ideas and ideology is far more important [than traditional approaches to conflict], since one of the most crucial objectives is political legitimacy [for insurgent movements]." Janet L. Sawin, Study of Peaceful Revolution: The Philippines, 17 Fletcher F. World Aff. 181, 187 (1993).
[FN264]. See generally Dana Neacsu, Legitimacy, Globally: The Incoherence of Free Trade Practice, Global Economics and their Governing Principles of Political Economy, 69 UMKC L. Rev. 733-800 (2001) (challenging legitimating effectiveness of rule of law and contract law as ideologies).
[FN265]. See Peter K. Yu, Toward a Non- Zero-Sum Approach to Resolving Global Intellectual Property Disputes: What We Can Learn from Mediators, Business Strategists, and International Relations Theorist, 70 U. Cin. L. Rev. 569, 578 n.58 (2002) (citing authority on power of ideology in China, and authority that suggests that Chinese nationalism may replace faith, Marxism and Maoism as the basis for political legitimacy of leadership).
[FN266]. Cf. Timothy Lindsey, Square Pegs & Round Holes: Fitting Modern Title into Traditional Societies in Indonesia, 7 Pac. Rim. L. & Pol'y J. 699 (1998) (arguing that reformers should not be so aggressive in eradicating traditional structures of land ownership and use even though economic development fueled by foreign investment is ideology that fuels legitimacy of Suharto government).
[FN267]. See Part I.A.5.a (describing continuing difficulties with ethnic tension and nationalism in Bosnia).
[FN268]. War in Iraq, Political Challenges After the Conflict, Int'l Crisis Group Middle East Report No. 11, Mar. 25, 2003, at 14-15 (describing penetration of Shiite propaganda in Iraq, and adoption of religious symbolism by Baathist regime as response).
[FN269]. See John Tierney, Iraqi Family Ties Complicate American Efforts for Change, N.Y. Times, Sept. 28, 2003, at A1 (reporting that strong family bonds, reinforced by 50% of marriages between first or second cousins, inconsistent with Western ideal of liberal democracy based autonomous individuals committed to public good).
[FN270]. "Whole valleys or urban neighbourhoods can become embroiled in conflict because of a dispute between two families." Peacebuilding in Afghanistan, Int'l Crisis Group Asia Report No. 64, Sept. 29, 2003, at 10.
[FN271]. Many Afghans have turned to traditional mechanisms such as shura and jirga, in absence of functioning formal systems. Id. at 12.
[FN272]. Id. at 10 (noting that traditional justice involving family disputes can be "deeply abusive of women's rights").
[FN273]. Baathist regime co-opted emerging tribal networks by making them "virtual auxiliaries of the judiciary system." See War in Iraq: Political Challenges after the Conflict, Int'l Crisis Group Middle East Report No. 11 (Int'l Crisis Group, New York, N.Y.), Mar. 25, 2003, at 12.
[FN274]. See infra Part II.B.1.f.
[FN275]. Several sections in this article note that increasing legitimacy of local institutions will occur at the expense of eroding legitimacy of the political trustee.
[FN276]. "Mainstream liberal democracy paradoxically embraces both popular decisionmaking and constitutional checks on populism." Richard St. John, Freedom by Shackles, 105 Yale L. J. 1159, 1159 (1996) (reviewing Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (1995)); see generally Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (2003).
[FN277]. Zakaria, supra note 253, at 17 (quoting Richard Holbrooke). As Susan Woodward has pointed out, a rush to democracy in countries with no tradition of rule of law, tolerance or liberalism is likely to produce extremism because the best way to get elected to office in an immature political system often is to campaign as a racist, or an extreme nationalist. Susan Woodward, Balkan Tragedy 124-125 (1995). Zakaria notes that emphasis on pure democracy and early elections as a way of supplying legitimacy to new regimes in countries in transition has produced what he calls "illiberal democracy." Zakaria, supra note 253, at 17-18.
[FN278]. See Cass R. Sunstein, Interest Groups in American Public Law, 38 Stan. L. Rev. 29, 30-31 (1985) (characterizing Madison's strategy for controlling factions through checks and balances in political and legal structure) [hereinafter "Sunstein" ]; see generally Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (1999) (reviewing increasing emphasis on building democracy as a goal of foreign policy, and evaluating relative success of various approaches).
[FN279]. This might entail a "rich variety of unelected bodies, indirect voting, federal arrangements, and checks and balances ...." Zakaria, supra note 253, at 157-158. It might also involve insulating certain key offices, such as the head of the central bank, from immediate political pressures. This could be achieved through appointing certain positions for longer terms, like six-to- ten years, as well as relying on delegation, following, for example, the model of the Chairman of the Federal Reserve System in the United States. Id. at 252.
[FN280]. Rule of law has been the centerpiece for all of the nation building activities from Bosnia onward and also a significant emphasis in the policy and rhetoric aimed at countries in transition around the world from former Soviet bloc countries to China. While rule of law has an amorphous meaning, it has been pursued through standard techniques: written constitutions; commitments to respect human rights; competent honest judiciaries; legal transparency; a professional, ethical bar; and substantive laws that apply modern concepts of criminal responsibility, criminal procedure, and penology, that facilitate a free press, and that support a competitive economic system centered on the private sector. See Richard H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 1 (1997) (arguing that the rule of law has uncertain meaning whereby it should be understood as complex of multiple interwoven strands).
[FN281]. See William A. Galston, Civil Society, Civic Virtue, and Liberal Democracy, 75 Chi.-Kent L. Rev. 603, 604-05 (2000) (arguing that rule of law, liberal democracy and civil society are interdependent and that civil society is more than a "school of citizenship." Civil society provides voluntary associations as counterweight to oppression and as channels for political participation).
[FN282]. "Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction." The Federalist No. 10 (James Madison).
[FN283]. Afghanistan is a clear example of the need to manage internal conflict. The Secretary General's report, approving the Bonn Agreement on interim government for Afghanistan, reported:
Major difficulties had to be overcome during the Bonn Conference, with the various parties questioning the degree to which the other adequately represented the entire population of Afghanistan. These mutual suspicions and accusations did not fully disappear with the establishment of the Interim Administration. ... The international coalition's continuing military campaign against terrorism is occurring in parallel with great tension, and sometimes fighting, between Pashtun political and tribal leaders who are competing for predominance in their respective communities. In addition, vehement protests persist that Pashtuns are grossly underrepresented in all official institutions, especially in the security sector.
Report of the Secretary General: The Situation in Afghanistan and Its Implications for International Peace and Security, U.N. SCOR P 9, U.N. Doc 2002/278 (2002).
[FN284]. For example, in Iraq, more than 100 Iraqi organizations represent different specific ethnic, sectarian, tribal or professional interests, along royalist, republican, pan-Arab, or Muslim ideological lines. Governing Iraq, Int'l Crisis Group Middle East Report No. 17 (Int'l Crisis Group, New York, N.Y.), Aug. 25, 2003, at 1. Interethnic rivalries between Sunni and Shiite Muslims, who each suspected the other of trying to dominate, produced an early stalemate during the drafting of an Iraqi constitution. Patrick E. Tyler, Iraqi Groups Badly Divided Over How to Draft a Charter, N.Y. Times, Sept. 30, 2003, at A10.
[FN285]. In Bosnia, forty-nine political parties applied to participate in the September 1998 election some ultra-nationalist and some more moderate. For a list and description of the 21 parties active in the 1999 elections, see European Forum for Democracy and Solidarity, Political Parties in Bosnia and Herzegovina, August 1999, at http://www.europeanforum.bot- consult.se/cup/bosnia/parties.htm (last visited Jan. 30, 2004). By the time of the 2002 elections, hope was growing for a permanent shift toward more moderate parties, committed to the Dayton Accords. In the 2002 elections, however, frustration with lack of governmental effectiveness caused a citizen backlash and increased representation for the nationalist parties. See National Democratic Institute for International Affairs, Report on Europe: Central and Eastern: Bosnia-Herzegovina, at http:// www.ndi.org/worldwide/cee/bosnia/bosnia.asp (last updated Oct. 2003).
[FN286]. As Part II.D.1, explains, growing opposition to the trustee is inevitable. Resistance to the trusteeship can itself give rise to the competing political institutions that are necessary to liberal democracy. In developing a system of checks and balances, the most significant check on the power of the trustee is domestic political opposition, while the most important check on the exercise of internal political power is the trustee. The result is a kind of a balance that eventually may be extrapolated into a purely domestic set of balanced political institutions.
[FN287]. Thomas Carothers observed that, "Democracy promoters have failed in many cases to seek a sophisticated understanding of the societies in which they work, resting on the misguided idea that their knowledge of democracy alone is a sufficient guide to foster democracy wherever they go." Thomas Carothers, Aiding Democracy Abroad 338 (1999).
[FN288]. Carothers suggests moving beyond formalistic attempts at institutional modeling and taking account of the underlying interests and power relations in which institutions are embedded. Id. at 333.
[FN289]. For example, military occupation of the Rhineland after World War I sought to shore up the legitimacy of one set of local political actors to forestall increasing legitimacy of another, disfavored, set of local actors. Ernst Fraenkel, Military Occupation and the Rule of Law: Occupation Government and the Rhineland, 1918-1923 34-35 (1944). Part of the motivation for the occupying forces' strong reliance on long-established, well-disciplined, and efficient German civil service and institutions was their fear of a political drift to the left as was already being evidenced by the establishment of workers and soldiers councils in many local areas toward the end of the war. Id. at 28-30. Accordingly, the Allies consistently refused to recognize such councils or their legislative acts. Id.
[FN290]. See Part I.A.5.a (describing decisions by High Representative in Bosnia when local institutions were deadlocked).
[FN291]. Id. Carothers also suggests relying less on an American model of democracy and helping other countries develop democratic forms particular to the country's own history and culture. Carothers, supra note 257, at 333. As the sections of this article on tribal custom, indigenous group pride, and ideology have already pointed out, successful political trusteeship requires understanding and harnessing these local conditions and cultures so as to avoid undermining local legitimacy of new institutions.
[FN292]. Tim Judah, Kosovo: War and Revenge 66-98 (2000) (describing the manifestation of a parallel state).
[FN293]. Id. at 77 (describing tension between formal and informal institutions).
[FN294]. This is the author's conclusion, based on scores of conversations with internationals working in Kosovo.
[FN295]. This conclusion also is based on the author's conversations in Kosovo.
[FN296]. Trustees aiming to develop liberal democracy need "toolkits." Such toolkits would have two compartments. One compartment would contain a "reserve corps" of advisors: judges, law professors, prosecutors and private practitioners who have been involved in past rule of law initiatives and who are willing to make themselves available in the future. The other compartment would be a database of legal texts, including reform laws written for other countries in transition, model texts and uniform laws drafted by international bodies such as UNCITRAL and national texts likely to be useful models, such as the German Commercial Code, the Model Penal Code from the United States, the British Companies Law, and the Delaware Corporation Law.
[FN297]. See War in Iraq: Political Challenges After the Conflict, supra note 268, at 5 (reviewing sources for recruiting political elite during Saddam Hussein's regime); id. at 8 (describing relatively independent economic elite).
[FN298]. The Ron Brown Fellowship Program, operating in Bosnia (web site: http://sarajevo.usembassy.gov/exchange/ronbrown.htm) and Kosovo (http:// www.usofficepristina.usia.co.at/ron.htm) is a good example of this approach.
[FN299]. Susan Woodward has explored how economic collapse in Yugoslavia fueled desperation and extremism that led to political instability. Woodward, supra note 253, at 54-55 (noting that economic shocks eroded role of middle class as political buffer). Jessica Stern has collected evidence that humiliation arising from poverty and hopelessness aid terrorist organizations to recruit. Jessica Stern, Terror in the Name of God 38 (2003).
[FN300]. See Dani Rodrik, Institutions for High Quality Growth: What They Are and How to Acquire Them (draft paper prepared for IMF conference on second- generation reforms, Washington, D.C., Nov. 8-9, 1999).
[FN301]. Rodrik asserts that:
[T]he quality of institutions trumps everything else. Once institutions are controlled for, integration has no direct effect on incomes, while geography has at best weak direct effects. Trade often enters the income regression with the "wrong" (i.e., negative) sign, as do many of the geographical indicators. By contrast, our measure of property rights and the rule of law always enters with the correct sign, and is statistically significant, often with t-statistics that are very large.
Dani Rodrik, Arvind Subramanian & Francesco Trebbi, Institutions Rule: The Primacy of Institutions Over Geography and Integration in Economic Development 4 (2002), available at http://ksghome.harvard.edu/~. drodrik.academic.ksg/papers.html (last visited Jan. 30, 2004).
[FN302]. Steven A. Ramirez, Book Review: Market Fundamentalism's New Fiasco: Globalization as Exhibit B in the Case Law for a New Law and Economics, 24 Mich. J. Int'l L. 831 (2003) (reviewing Joseph E. Stiglitz, Market Fundamentalism's New Fiasco: Globalization As Exhibit B in the Case for a New Law And Economics (2002), 24 Mich. J. Int'l L. 831 (2003)).
[FN303]. Such a strategy also should include:
A program for privatizing state-owned and socialist enterprises;
A program for stimulating small business development, which must include;
Small business support services much as are provided by the Small Business Administration in the United States;
Mechanisms for making potential investors aware of investment opportunities in the small business sector;
Development of the financial services sector including banking, investment banking and investment fund management;
Development of matchmaking services such as securities exchanges;
Development of risk management institutions such as insurance and commodities futures; exchanges and related services.
[FN304]. Ramirez, supra note 302, at 832-33 (summarizing Stiglitz's recommendations).
[FN305]. See Matthew H. Hurlock, New Approaches to Economic Development: The World Bank, the EBRD, and the Negative Pledge Clause, 35 Harv. Int'l L. J. 345, 346 (1994) (referring to "consensus view" that privatization and external financing from commercial sources are valuable in promoting economic development in countries in transition). State-granted monopolies should be disassembled early in the trusteeship, independent of the timing of privatization. In Bosnia, for example, early opportunities for high-tech entrepreneurs who wanted to start small businesses in the form of Internet cafes and other Internet Service Providers were quashed by the effective assertion of a monopoly by the state telephone company, which lacked the current capacity to enter the Internet service market but wanted to keep that market for itself in the future. This short-sighted policy not only reduced small business development, it also deprived the economic sector of a good telecommunications infrastructure for an unnecessarily long period of time. In contrast, in Kosovo, one of the most successful private ventures has been IPKO, a national broadband Internet backbone, which was allowed to develop notwithstanding the state telephone company's desire to maintain and extend its monopoly.
[FN306]. For example, UNMIK, is expressly directed to support the reconstruction of key infrastructure and other economic reconstruction. S.C. Res. 1244, supra note 4, at P 11(g). Section 6 of UNMIK Regulation No. 1 provides for UNMIK's administration of movable and immovable property registered in the name of the Federal Republic of Yugoslavia the name used for the rump state of Serbia and Montenegro. UNMIK thus possesses the necessary legal authority to adopt legislation and to take executive steps to create and to transfer property rights necessary for economic development and the attraction of foreign capital.
[FN307]. Authority in the economic sphere for other recent political trustees is less clear. UN Security Council Resolution 1401, establishing the political trusteeship in Afghanistan, does not explicitly mention economic development. Neither does Security Council Resolution 1410, pertaining to East Timor. UN Security Council Resolution 1483, approving the political trusteeship in Iraq does identify economic reconstruction and development of a sustainable economy as a goal, but it does not explicitly approve the power to restructure economic institutions or property law. S.C. Res. 1483, U.N. SCOR, 4761st mtg. P 8(e), S/RES/1483 (2003). See also S.C. Res. 1511, U.N. SCOR, 4844th mtg. P 8, S/RES/1511 (2003) (empowering UN to "promot[e] economic reconstruction of and conditions for sustainable development in Iraq").
[FN308]. See Part II.C.2.
[FN309]. Political trustees should have economic development toolkits with three compartments, one with personnel experienced in privatization of publicly owned or socialist enterprises, the second with personnel competent in providing the support services and financial intermediation necessary for small business formation, and the third with legal texts useful for privatization, small business creation, banking, investment banking, and investment fund management.
[FN310]. See John Ohnesorge, Political Corruption in Market Democracies, 93 Am. Soc'y Int'l L. Proc. 229 (1999) (summarizing proceedings in which contributors cautioned against overbroad definitions of corruption).
[FN311]. See Kenneth U. Surjadinata, Revisiting Corrupt Practices from a Market Perspective, 12 Emory Int'l L. Rev. 1021, 1021-1022 (1998) (noting pervasiveness of corruption in all societies and difficulties in defining it).
[FN312]. See Bernard S. Black & Anna S. Tarassova, Institutional Reform in Transition: A Case Study of Russia, 10 Sup. Ct. Econ. Rev. 211, 213-214 (2003) (discussing Russia's failure to control corruption, a prerequisite for a successful transition).
[FN313]. Surjadinata, supra note 311, at 1026-1027 (noting that some, but not all, corruption is inefficient in economic terms).
[FN314]. Muhamet Sadiku, The Impact of Corruption on Kosovo's Economy, at http://www.cipe.org/publication/fs/articles/article35.htm (last visited Jan. 30, 2004).
[FN315]. East-West Management Institute, Kosovo NGO Advocacy Project: Preliminary Report on anti-corruption (2002).
[FN316]. Id. at 4-6.
[FN317]. See generally Saladin Al-Jurf, The E-Book on International Finance and Development v. Good Governance and Transparency: Their Impact on Development, 9 Transnat'l L. & Contemp. Probs. 193 (1999) (arguing that effective anti-corruption efforts must reflect cultural differences and the historical origins of corruption as ways to accommodate local needs to the realities of colonialism).
[FN318]. See Niall Ferguson, Empire 348-49 (2002) (noting chaos and long- term damage to local institutions when British precipitously withdrew from Egypt and India).
[FN319]. S.C. Res. 1410, provides that the political trustee in East Timor should "downsize" and "fully devolve all operational responsibilities" to local authorities as soon as feasible "without jeopardizing stability." S.C. Res. 1410, supra note 81. The Afghanistan resolutions contain no provisions on duration of the trusteeship. S.C. Res. 1511 calls upon the trustee to "return governing responsibilities and authorities to the people of Iraq as soon as practicable" S.C. Res. 1511, supra note 307, at P 6.
[FN320]. The process for determining final status must take into account the Rambouillet Accords. The Rambouillet Accords provided for a referendum on independence within three years. Ramboulliet Accords, Feb. 23, 1999, chap. 8, art. I, para. 3 ("Three years after the entry into force of this Agreement, an international meeting shall be convened to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people ...) [emphasis added].
[FN321]. These observations are based on scores of conversations the author has had with Kosovars in Kosovo and in the Diaspora, before the NATO intervention and afterwards, and throughout the period of UN trusteeship.
[FN322]. Indeed, in the Spring of 2003, tensions escalated to the point that the SRSG sought a formal rebuke of the Kosovo Assembly from the Security Council, which said, among other things: "Members of the Security Council strongly supported the decisions by the Secretary General's Special Representative in Kosovo, Michael Steiner, to declare as having no legal effect the enactment of legislation on Higher Education by the Kosovo Assembly on 3 April 2003. They expressed their concern about this action by the Assembly and called on the Provisional Institutions of Self-Government to focus their work on competencies under their purview, in a way fully consistent with 1244 and the Constitutional Framework." Press Release SC/7729, U.N. SCOR, Press Statement by Security Council President on Kosovo (Apr. 14, 2003) (transcript available at http://www.un.org/News/Press/docs/2003/sc7729.doc.htm).
[FN323]. For example, Scharf and Williams use the term "phased recognition" to describe:
[A transitional sovereignty] under which the international community bestows attributes of sovereignty on a territory in return for its compliance with a series of stipulated benchmarks. The transitional administration approach for Afghanistan, which was negotiated at Bonn, gives the international community the opportunity to impose a series of benchmarks upon the transitional government.
Scharf & Williams, supra note 1, at 717.
[FN324]. See I.A.5.a.
[FN325]. Hence, Scharf and Williams urge that phased recognition not be considered an all-or-nothing proposition as it was in Bosnia. Instead, sovereignty should be ceded incrementally to local institutions as they meet benchmarks defined in advance. Scharf & Williams, supra note 1, at 718.
[FN326]. This usually is referred to as "standards before status." See http://www.unmikonline.org/pub/focuskos/apr02/benchmarks_tablefinal.pdf (last visited Oct. 2, 2003) (listing eight standards, and offering benchmarks for determining whether standards have been met).
[FN327]. See Proceedings of U.N. Security Council, U.N. SCOR 58th Sess., 4853rd Meeting, at 4 S/PV.4853 (SRSG Holkeri)(Oct. 30, 2003) (reporting that UNMIK and PISG are developing joint plan to identify achievable goals for meeting eight standards); id. at 8 (Mr. Pleuger for Germany suggesting that standards be fully operationalized into a more detailed work plan" to "help focus work in Kosovo on what needs to be achieved" and to "give the international community a clearer basis on which to judge progress"); id. at 19 (Mr. Negroponte for the United States) (calling operationalization of benchmarks in the near term "vital"); id. at 25 (SRSG Holkeri) (committing to present specific goals and indicators representing operationalization of standards in next report to Security Council).
[FN328]. See S.C. Res. 1401, supra note 85, at PP4-5 (referring to secure environment and freedom of movement as prerequisites for further progress in Afghanistan); S.C. Res. 1511, supra note 307, at P 13 (determining that "the provision of security and stability is essential to the successful completion of the political process" contemplated for Iraq by the Resolution).
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