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Transitional Foreign Administrations

INTRODUCTION

Restitution, reparations, and punishment are all constituents of a justifiedATC peace. Throughout those chapters, I have touched on some of the institutional questions raised by (inter alia) the moral imperative to rebuild war-torn communities, conflicts between the demands of punitive justice and the requirement not to jeopardize peace, and so on. In this chapter, I address a different institutional question (though again from a normative point of view), namely that of which actors are prima facie morally justified in enforcing peace in general and peace agreements in particular.

That question is both related to, and significantly different from, the issue of peacekeeping and military occupation, which we tackled in ch. 3. There, I argued that a political actor—be it a state, a coalition thereof, or an international organization such as the UN—has the right to conduct a military occupation or deploy peacekeeping forces on the territory of a community if a section of that community’s population presents a serious threat to the human rights of some other party. My focus was on military and peacekeeping operations which occur while a war is ongoing or in its immediate aftermath—in other words, prior to the conclusion of a peace settlement. My concern here is somewhat different. It is with what the empirical literature on peace has called peace-building operations, which occur following a peace settlement and which aim to turn war-torn communities into stable, liberal democratic societies.

The most comprehensive of those operations issue in so-called transitional foreign administrations (TFAs). In law, TFAs differ from both occupying administrations and peacekeeping operations of the kind studied in ch. 3, precisely because they occur following a peace settlement. Furthermore, and as we saw in ch. 3, Occupiers may replace extant local laws only if the latter violate the laws of war, if the preservation of law and order in the occupied territory requires that they should pass new laws, or if their war effort outside the occupied territory (henceforth, OT) requires new laws. However, TFAs assume the legal power wholly to overhaul the legal system in place at the start of their mission if necessary—though they do not become sovereign, since territorial sovereignty vests in individuals themselves. Rather, they take on the full range of executive, legislative, and judicial competences traditionally exercised by sovereign states, until such time as the community over which it so governs is able to do so itself. This often includes, not just writing up constitutions and reforming and training the police, but also (inter alia) running hospitals, and rebuilding and managing basic transport, water, and electricity infrastructure.1

Notwithstanding those differences between occupation and transitional foreign administrations, I aim to develop and extend my earlier argument for the former into a defence of the latter. I thus set aside less ‘invasive’ missions undertaken elsewhere by the UN: if transitional foreign administrations are justifiable, then a fortiori and pending arguments to the contrary, so are lighter touch approaches to peace-building; and so is a decision not to remove the defeated regime while at the same time containing it with measures such as trade restrictions, disarmament, and so on.2

At first sight, this task, which has been almost entirely neglected by just war theorists, should be relatively easy.[1] [2] [3] For if, as cosmopolitans aver, national and political borders are largely irrelevant from a moral point of view, and if military occupation is justified as a means to thwart threats to human rights, then it does seem that national governments and international organizations have a prima facie justification for turning war-torn communities into self-governing and legitimate entities. The case seems all the stronger in the light of the fact, stressed by advocates of the so-called liberal peace thesis, that liberal societies on the whole do not go to war against each other, and (notwithstanding the invasions of Afghanistan in 2001 and Iraq in 2003 by the United States and their allies) are less likely than illiberal societies to go to war tout court. In fact, if the liberal peace thesis is correct, it might seem, more strongly still, that populations of illiberal societies are under a duty to subject themselves to transitional administrations so long as the latter can help turn them into peace-promoting societies.[4]

However, the view that TFAs are a morally acceptable means towards a justifiedATC peace is vulnerable to the charge of neocolonialism. That cosmopolitanism should elicit this particular criticism is not surprising—though the criticism is often deployed under the label ‘liberal imperialism’. For cosmopolitanism, it is often averred, is insensitive to the distinct identity and salience of national cultures, rides roughshod over individuals’ culturally situated understandings of the demands of morality, and, when enforced by political and military might, offers no promise but that of a contemporary form of colonialism. At the very least, sceptics will press, even if the charge is overstated, TFAs nevertheless rest on a paradox, that of imposing democracy and liberalism by force. Moreover, although the enormous political, economic, and social difficulties which those administrations aim to solve are exacerbated by war, they do not always originate in it. To advocate the direct governance of a given community by largely foreign institutions is thus not to advocate a return to the status quo ante bellum: more often than not, it is to advocate a profound reshaping of that community to something which it was not before the war—in the same way as colonial powers would seek to transform their colonies.5

This raises a difficulty for cosmopolitans, for however willing they might be to advocate outside interference in the affairs of political communities whose regimes do not abide by the fundamental tenets of cosmopolitan justice, qua cosmopolitans they ought to reject any principle which ultimately rests on, or leads to, the denial of equal concern and respect. To the extent that colonialism exemplifies such denial, they must either rebut the charge or renounce TFAs as a morally justified means to bring about a justifiedATC peace.

Faced with this particular challenge, I proceed as follows. I begin with a historical overview of the practice (s.8.2), and move on to offering a preliminary justification for it (s.8.3), which I then qualify in the light of an extended discussion of the colonialism objection (s.8.4).

A few caveats before I start. First, the label I use, ‘transitional foreign administration’, is unusual. The empirical literature on peace-building tends to use either the words ‘transitional administration’ or the words ‘international administration’. For my purposes, however, neither will do. Strictly speaking, ‘transitional administration’ can denote a domestic institution tasked with carrying out post-conflict constitutional reforms. (A good example is the provisional government of the French Republic, which governed over France between 1944 and 1946 and oversaw that country’s transition from the Vichy collaborationist dictatorship to the Fourth Republic.) The label ‘international administration’, for its part, implies that a transitional administration counts as such only if it is carried out by an international institution such as the UN. Whilst in practice transitional administrations

Rosato notes, the fact that the US supported military coups in Brazil (1964) and Chile (1973), which were then fledgling though left-leaning democracies, casts some doubt on the coherence of the thesis.

5 For expositions and discussions of the colonialism objection in the context of transitional administrations, see, e.g., Chesterman, You, The People, 1; Wilde, International Territorial Administration, ch. 8; D. Zaum, The Sovereignty Paradox: The Norms and Politics of International Statebuilding (Oxford: Oxford University Press, 2007), ch. 6; Caplan, International Governance ofWar-Torn Territories.

since 1945 have fit that model, and whilst (as we shall see) there are reasons to think that international organizations are better suited to the task, my concern is with the view that a given community may be restructured, shaped, and governed by foreign actors, whether foreign national governments or international organizations.

Second, although I scrutinize post-war transitional foreign administrations, this particular mode of governance is sometimes used in order to forestall conflict. Thus, in 1962, the UN set out to administer the province of then West Irian (now West New Guinea) as a means to settle an escalating dispute between the Dutch and the Indonesian governments over its status—a status which had been left undecided pending further negotiations when the Netherlands had recognized Indonesia’s independence in 1949.[5] A full study of those administrations, which is outside my remit, would need to tackle preventive cases.

Third, my aim is not merely to show that TFAs are a morally justified means to enforce the substantive requirements of a justifiedATC peace, which I defended in chs. 5—7. As I noted at the close of ch. 4, given that a justifiedATC peace requires that individuals’ human rights be respected, a peace agreement must stipulate that all parties will respect those rights, including liberal and democratic rights, on pain of being unjustified all things considered. Accordingly, I defend TFAs not just on the grounds and to the extent that they can under some circumstances enforce a justifiedATC peace, but also on the grounds and to the extent that they can under some circumstances bring about a liberal democratic regime—in other words, regime change.

Finally, as the empirical literature shows, the success of a given mission is largely contingent on specific local circumstances such as the size of the territory under administration, the ethnic composition of its population, the nature, length and severity of the conflict, and the features of its pre-war institutions. One may wonder, therefore, what a normative inquiry could possibly do, other than articulate a one-size fits-all, and therefore unfit-for-implementation, blueprint for a just transitional foreign administration. However, local factors are in part shaped by outsiders, not least foreign interveners or peacekeepers whose conduct and decisions may well have a lingering impact on local populations and institutions.[6] It thus pays to articulate the moral norms which ought to regulate transitional administrators’ acts and decisions.

  • [1] See Bellamy, Griffin and Williams, Understanding Peacekeeping, 255. For an interesting accountof the concept of ‘suspended sovereignty’, or ‘sovereignty in abeyance’, as deployed in public international law, see Yannis, ‘The Concept of Suspended Sovereignty in International Law and ItsImplications in International Politics’. On the legal status of territories administered by transitionaladministrations, with specific reference to the concept of sovereignty, see R. Wilde, InternationalTerritorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford:Oxford University Press, 2008), esp. ch. 3.
  • [2] See, for example, the cases of Afghanistan in the early 2000s, in Namibia in 1989—90, or inCambodia in 1991—93, discussed in (e.g.) Bellamy, Griffin and Williams, Understanding Peacekeeping.One of the difficulties with this less invasive approach—sometimes dubbed the light footprint’approach—is that it favours the entrenchment of local hierarchies. It can also serve to justify con-demnable underinvestment by international actors.
  • [3] I know of only one book-length substantially philosophical treatment of the issue, in the form ofC. Hermansons doctoral thesis. See C. Hermanson, ‘Duties in the Wake of Atrocity: A NormativeAnalysis of Post-Atrocity Peacebuilding' (D.Phil thesis, University of Oxford, 2012). For a much brieferdefence, with specific reference to Iraq post-2003, see N. Feldman, What We Owe Iraq—'War and theEthics of Nation Building (Princeton, N.J.: Princeton University Press, 2004).
  • [4] For a classic late twentieth-century defence of the liberal peace thesis (which has its theoreticalorigins in Kant’s moral and political philosophy, and its political roots in Wilsonian internationalism),see M. W Doyle, Ways of War and Peace: Realism, Liberalism, and Socialism (New York; London:Norton, 1997); M. W Doyle, ‘Kant, Liberal Legacies, and Foreign Affairs’, Philosophy & Public Affairs12 (1983): 205—35; M. W. Doyle, ‘Kant, Liberal Legacies, and Foreign Affairs, Part 2’, Philosophy &Public Affairs 12 (1983): 323—53; M. W Doyle, ‘Liberalism and World Politics’, The American PoliticalScience Review 80 (1986): 1151—69. For a highly critical stand on the thesis, see, e.g., S. Rosato, ‘TheFlawed Logic of Democratic Peace Theory’, American Political Science Review 97 (2003): 585—602. As
  • [5] See Wilde, International Territorial Administration, 13.
  • [6] See Caplan, International Governance ofWar-Torn Territories, 27.
 
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