Political Trusteeship

UCLA Journal of International Law and Foreign Affairs

Fall\Winter 2003

Article

*385 STRUCTURES AND STANDARDS FOR POLITICAL TRUSTEESHIP

Henry H. Perritt, Jr. [FNa1]

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.

b. Allied Occupation of Japan

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