UCLA Journal of International Law and Foreign Affairs
Fall\Winter 2003
Article
*385 STRUCTURES AND STANDARDS FOR POLITICAL TRUSTEESHIP
Henry H. Perritt, Jr. [FNa1]
Copyright © 2003 Regents of
the University of California; Henry H. Perritt,
Jr.
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
b. The League of Nations Mandate
System ........................ 393
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
II. Prescriptions for Successful Political Trusteeship
.................. 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
c. Provide Mechanisms for Judicial
Review ...................... 445
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
*387 Introduction
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.
*389 I. Political Trusteeship Model
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.
a. Bosnia
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.
b. Kosovo
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]
d.
Afghanistan
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.
e. Iraq
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.
a. Conquest
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'être 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. Protectorates
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.
b. Condominium
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.
c. Peacekeeping
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.
II. Prescriptions for Successful Political
Trusteeship
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.
a.
Respect the Importance of International Law
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:
1. Independence;
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.
Conclusion
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).
[FN2]. Restatement
(Third) of Trusts § 2 (2003).
[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" ].
[FN33]. Id.
[FN34]. Id.
[FN35]. Id.
[FN36]. Id.
[FN37]. Id.
[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.
[FN44]. Id.
[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).
[FN55]. General Framework Agreement for Peace in Bosnia and
Herzegovina with Annexes, Dec. 14, 1995, 35
I.L.M. 75, art. III [hereinafter "Dayton
Accords" ].
[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 ....
Id.
[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') ....
Id.
preamble.
[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.
The Resolution:
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).
[FN130]. Restatement
(Third) of Trusts § 46 (2003) (asserting that trustee may exercise power of appointment
to identify beneficiaries).
[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).
[FN140]. Id.
at 89-94 (criticizing uncertainty of definition
based on sovereignty concepts).
[FN145]. See id.
at 141-47 (reviewing various structures).
[FN146]. Id.
at 124-26 (explaining why condominium fits the
German occupation and belligerent occupation does not).
[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.
Davis Brown, Use of Force
Against Terrorism After September 11th: State Responsibility, Self-Defense and
Other Responses, 11 Cardozo J. Int'l & Comp. L. 1, 33 (2003).
[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).
[FN180]. Thomas D. Grant, Defining
Statehood: The Montevideo Convention and its Discontence, 37 Colum. J.
Transnat'l L. 403, 403 (1999).
[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).
[FN237]. Id.
[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;
• Technical support services to assist small
business entrepreneurs in applying for the investment, including assistance in
such things as writing business plans;
• 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).
END OF
DOCUMENT