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MANDATES, TRUSTEESHIP, AND TRANSITIONAL FOREIGN ADMINISTRATIONS

Virtually all book-length empirical studies of TFAs offer an overview of the practice and note that its contemporary instantiations, such as the UN Transitional Administrations in Bosnia, Kosovo, and East Timor have their roots in colonial, or quasi-colonial, administrations going as far back as the Roman Empire (to name but one long-past example) and, more recently, the Mandates system established under the auspices of the League of Nations following the First World War and the Trusteeship system set up by the United Nations following the Second World War.

I shall review the case of colonial administrations when scrutinizing the colonialism objection below. To avoid pre-empting that discussion, I begin my historical overview with the Mandates and Trusteeship systems and compare them with the aforementioned three UN missions, whose central features are a recurrent illustrative theme of the chapter.[1]

One of the most important and difficult tasks which the US, Britain, France, and Italy took on at the 1919 Paris Peace Conference was to decide what to do with the colonial empires of their defeated enemies. While President Wilson held that German colonies should be administered by the to-be-formed League of Nations, his three counterparts took the rather different view that those colonies, as well as the Ottoman Empire, should be carved up between the winners (not forgetting Australia, New Zealand, and South Africa, all of whom had designs on this or that territory) on the basis of the good old-fashioned ‘spoils of war’ principle. The outcome of protracted, often bitterly divisive negotiations between the allied powers was a two-pronged system: the government and administration of some of those colonies were entrusted under the authority of the League to a given state (Britain, thus, ‘got’ Palestine, while France got the best part of Cameroon, and Belgium—at the last minute—was given Rwanda), whilst some territories (notably the Saar Basin and the city of Danzig) were governed directly by the League via an international commission or administrator.

The Mandates system served different purposes. On the one hand, it provided a solution to intractable territorial disputes. Thus, removing the city of Danzig from the jurisdictions of both Poland and Germany conferred protection on the city’s largely German population while safeguarding Poland’s access to the sea. Likewise, the Saar Basin, which was still legally part of Germany, was administered by the League as a means to enable the French securely to exploit its mines without threatening German jurisdiction over it. On the other hand, the system was meant to provide secure governance to communities (in Africa and the Middle East) deemed unable to govern themselves, and until such time as they could properly exercise their right to self-determination. Of course, the system was but a fig leaf for the old practice of outright annexation after war and soon made itself vulnerable to the charge of Western imperialism. Legitimate concerns about the efficiency of international administrations established by the League may well have driven Western states to disfavour the system. That said, there is little doubt that those states did regard the newly acquired territories as just that: acquisitions. In fact, only some of the territories held as Mandates were earmarked for independence

(so called Class A mandates, principally located in the former Ottoman Empire and deemed very close to self-sufficiency), while the others came to be seen as parts of the British and French colonial empires.

Although the League of Nations did not survive the outbreak of the Second World War, the aspirations which it embodied led to the creation of the United Nations. The Mandates system itself partly survived through the Trusteeship system enshrined in Ch. XII of the UN Charter. As Simon Chesterman notes, in 1945 roughly a third of the world’s population lived on territories which were regarded, legally speaking, as non-self-governing—some of which were still parts of a colonial empire (notably Britain’s and France’s) and some of which were placed under the Trusteeship system.[2] Under ch. XII, all non-self-governing territories are placed under the oversight of the United Nations, provided that they meet one of the following conditions: they were held in mandate following the First World War, they were separated from their original state as a result of the Second World War, or (relevantly to contemporary world politics) they have been placed under the system by states currently responsible for their administration (art. 77). Under Trusteeship, and in contrast with the Mandates system, supervising authorities must aim to enable all non-self-governing territories to achieve independence (which in fact all of the eleven territories held in trust in 1945 eventually did). Moreover, the legal status of trusteeship cannot be conferred on ‘territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality’ (art. 78).

Territories which were held in trust in 1945 were not governed directly by the UN but, rather, by the Mandatory power in place at the outbreak of the Second World War. By contrast, the UN Trusteeship Council was tasked with supervising the governing powers, receiving complaints from local populations, and sending inspectors to ensure that the former were fulfilling their legal obligations to the latter. Although the governing power exercised the right to govern over the territory, it did so in trust and on behalf of its holder, to wit individual members of the community in question, and having been authorized to do so by the international community. A similar principle informed the UN’s view of yet another category of non-self-governing powers, namely colonies held by France, Britain, Spain, and Portugal. At the time of writing, there remain seventeen such territories—totalling a population of c. 1.6 million.[3]

All the territories regarded as non-self-governing by the UN were, or are, administered by a sovereign state. In only two cases, that of Trieste and Jerusalem, was the possibility of direct UN administration considered—and abandoned. Nevertheless, the Mandates legacy of direct administration by international institutions in the 1920s and 1930s, creative interpretations of ch. XII of the UN Charter, and the extensive enforcement powers granted to the Security Council by Ch. VII of the Charter, paved the way for the conduct of complex, state-building missions in the late 1990s/early 2000s—most notably in East Timor, Bosnia, and Kosovo.

East Timor—now Timor Leste—which lies to the south-east of the Indonesian archipelago—gained its fragile independence in 1974 from Portugal when the 1 atter’s regime was overthrown by the so-called Carnation Revolution. In 1975 however, Indonesia invaded East Timor, over which it ruled by terror until the newly elected President of Indonesia renounced his country’s claim to the territory in 1999. The status of East Timor had already been at the heart of difficult, halting, and unsuccessful negotiations between Indonesia, Portugal, and the UN—from which the East Timorese resistance parties had been excluded. Following President Habibie’s announcement, the three negotiating parties agreed on a date for a referendum on independence to be monitored by the UN, and on the deployment of a peacekeeping mission to oversee the transition towards self-government should this prove necessary. The East Timorese voted overwhelmingly in favour of independence, following which the Indonesian Army withdrew en masse while paramilitary groups opposed to the referendum’s outcome launched a devastating scorched earth policy. By September 1999, two thirds of all buildings had been destroyed, no administration remained, and over two thirds of the population was on the move. At first, the UN authorized the deployment of an international force led by Australia and made up of troops from South East Asia, invoking as the basis for its decision Ch. VII of its Charter, in virtue of which the Security Council may authorize the use of military force as a means to maintain peace and security. Once stability of some kind was restored, however, it became clear that the Timorese lacked the infrastructure, funds, and, crucially, human resources to govern themselves, and that outside help and intervention were necessary. This took the form of the United Nations Transitional Administration for East Timor (UNTAET), which, with the support and growing involvement of the local population, governed the country until 2002 under the terms of Security Council Resolution 1272. Backed by a UN peacekeeping force of several thousand combatants, UNTAET oversaw elections to a constitutional assembly, the reform of the legal system and the judiciary, the restructuring of the civil service, and the rebuilding of the infrastructure.[4]

The task of international administrators was rendered less complex for the fact that the East Timorese themselves were not locked in a civil war and had united before UNTAET’s arrival in favour of independence. Moreover, there had already been an unambiguously clear referendum on that very issue, which provided transitional administrators with a clear mandate for their mission at the outset—to wit, enabling East Timor to become a self-governing, human rights—respecting independent state.

Consider now the case of Bosnia and Herzegovina, whose population in 1995, at the conclusion of the civil war which followed the break-up of the former Republic of Yugoslavia, comprised Serbs, Croats, and Bosnian Muslims (Bosniaks). Having voted in favour of independence from Yugoslavia in 1992 against the wishes of the majority of Bosnian Serbs, the Republic of Bosnia and Herzegovina was attacked by Serbia in the spring of that year. It was under threat of breaking up when, in 1993, the secessionist Croatian province of Herzeg-Bosnia launched a war of independence with the backing of Croatia. Following intense diplomatic and military pressure from key members of the UN and NATO, the parties agreed to reach a peace settlement. The General Framework Agreement for Peace in Bosnia and Herzegovina, or Dayton Agreement, was signed by President Slobodan Milosevic of Yugoslavia on behalf of Bosnian Serbs (in the absence of their President Radovan Karadzic), President Franco Tudjman of Croatia on behalf of Bosnian Croats, and President Alija Iztebegovic for the Republic of Bosnia-Herzegovina. The French and American presidents, the British and Russian prime ministers and the German Chancellor signed the Agreement as witnesses.

The clauses of the Agreement are far-ranging: they provide, inter alia, for the establishment of an international peacekeeping force, for the conduct of democratic elections under supervision by the Organisation for Security and Cooperation in Europe (OSCE), and for the conferral of extensive powers to NATO regarding the demilitarization of the country. In addition, Annex 4 in effect serves as the country’s new constitution, along liberal-democratic lines; other Annexes cater for the preservation of human rights, the establishment of an international police task force, a commission to preserve national monuments, and various commissions for transports and utilities. Crucially for our purposes here, Annex 10 stipulates that, ‘In view of the complexities facing them, the Parties request the designation of a High Representative, to be appointed consistent with relevant United Nations Security Council resolutions, to facilitate the Parties’ own efforts and to mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement’.^ Initially, then, the country was to be governed by and through its local institutions and officials, in consultation and with the help of an array of international organizations, and under the supervision of the High Representative and the so-called Peace Implementation Council, comprising representatives of the states and international organizations involved in the peace process. However, when distrust amongst the three ethnic groups and tensions between local and international officials threatened to derail the process, the Council met in summit in Bonn and endorsed the High [5]

Representative’s decision to use his existing powers of interpretation of the Dayton Agreement more broadly—so broadly in fact as to make binding decisions (including removal from office) against local officials deemed to act in violation of the Agreement. Unlike Resolution 1272, the Dayton Agreement did not explicitly provide for a transitional foreign administration. But institutional paralysis on the grounds, subsequent mission creep, and the conferral on the High Representative of so-called Bonn Powers in effect turned Bosnia over to the UN Mission (UNMIBH), notwithstanding the continuing and growing participation of local elites.

In those two cases, East Timor and Bosnia, the transitional administration’s objective was clear. The case of Kosovo is markedly different. There the UN administration embarked on its institution-building enterprise without having settled the question of the legal status of the province—a question which remains open at the time of writing. Kosovo, whose population is Albanian in its majority, had enjoyed a certain degree of autonomy within the former Republic of Yugoslavia since 1969, but when its self-declared parliament announced the province’s independence in 1990, Yugoslav and Serb President Milosevic revoked its privileges. Following a few years of growing violence opposing the Serbian Army and Albanian resistance movements, the international community sought to end the conflict through the so-called Rambouillet Accords, which demanded that Serbia restore Kosovo’s autonomy and allow peacekeeping forces to enforce the ceasefire. Faced with Serbia’s refusal to sign the Accords and its ongoing policy of ethnic cleansing in Kosovo, NATO carried out a bombing campaign in the spring of 1999 (without authorization from the Security Council), which lead to the withdrawal of Serb forces from Kosovo. Under the terms of Security Council Resolution 1244, Kosovo was placed under a UN-led transitional administration (UNMIK) backed by a NATO-led military force. But whereas a majority of Kosovo’s population did wish for independence and full sovereignty, resolution 1244 reaffirms that Kosovo is to remain part of Yugoslavia. In defiance of resolution 1244, Kosovo proclaimed its independence in 2008 and has been recognized as an independent state by over one hundred UN members (in particular the permanent members of the Security Council with the [unsurprising] exception of Russia). It is not a member of the UN. Its legal status is still under dispute (despite the International Court ofJustice’s advisory opinion to the effect that its declaration of independence does not violate international law), not least because Serbia, with Russia’s backing, still considers it to be part of its territory.[6]

UNMIK’s mandate was to steer the three wartime regimes to build self-governing, human rights—promoting institutions which would enable Kosovo to enjoy autonomy within the (then) Republic of Yugoslavia. Although the overall stated aim of the mission was to hand over the administration of the territory to Kosovars, the latter were given only a consultative (and, according to critics of the process, ineffectual) role at first. UNMIK took responsibility for drafting a constitutional framework, preparing for elections, establishing the rule of law, rebuilding infrastructures destroyed by years of conflict, overseeing economic reconstruction, and providing conditions for political reconciliation.

In the case of East Timor, the transitional foreign administration assumed the powers and privileges of government as part of a process of decolonization. In Bosnia-and-Herzegovina and Kosovo, it did so as part of a peace process to which international institutions and other states had been parties. In other cases, such as Congo (1960—64), Somalia (1993—95), and Sierra Leone (1999), the UN stepped into the breach left by the near collapse of domestic state institutions.[7] Across those differences, it is an explicit aim of transitional foreign administrations as they have operated in practice that they should enable the target community not only to become self-governing (albeit not necessarily as an independent, sovereign state, as the example of Kosovo attests), but also to be a liberal society. In the remainder of this chapter, I argue that, at the bar of cosmopolitan justice, and notwithstanding understandable worries raised by the colonialism objection, transitional foreign administrations of that kind are (sometimes) morally justified.

  • [1] What follows in this section heavily draws on the works mentioned in fn. 4. For a clear and concise account of the establishment of the Mandates system by the Paris Pace Conference, see Macmillan, Peacemakers, ch. 8.
  • [2] Chesterman, You, The People, 37.
  • [3] So-called non-self-governing territories fall within the remit of Ch XI of the UN Charter. Fordata on those territories, see http://www.un.org/en/decolonization/nonselfgovterritories.shtml (accessedon 15/01/2016).
  • [4] See http://www.un.org/en/peacekeeping/missions/past/etimor/etimor.htm (accessed on 15/01/2016),and Howard, UN Peacekeeping in Civil Wars, ch. 8; O. Tansey, Regime-Building: Democratization andInternational Administration (Oxford: Oxford University Press, 2009), ch. 3; Zaum, The SovereigntyParadox, ch. 5. Another case of explicitly and intended direct governance by the UN is EasternSlavonia. See Howard, UN Peacekeeping in Civil Wars.
  • [5] See http://avalon.law.yale.edu/subject_menus/daymenu.asp (accessed on 15/01/2016) andhttp://www.un.org/en/peacekeeping/missions/past/unmibh/ (accessed on 15/01/2016). For clear accounts of international actors’ involvement in Bosnia, see, e.g., Chesterman, You, ThePeople, esp. 1T8—31, for the High Representative’s powers; Tansey, Regime-Building: Democratizationand International Administration, ch. 5; Zaum, The Sovereignty Paradox, ch. 5; Bellamy, Griffin andWilliams, Understanding Peacekeeping. 266—73; Fox, Humanitarian Occupation, esp. 74—84; E. M.Cousens, ‘From Missed Opportunities to Overcompensastion: Implementing the Dayton Agreementon Bosnia’, in S. J. Stedman, D. Rotchild and E. M. Cousens (ed.), Ending Civil Wars—TheImplementation of Peace Agreements (Boulder and London: Lynne Rienner Publishers, 2002).
  • [6] See http://www.un.org/en/peacekeeping/missions/unmik/ See also, for detailed studies ofUNMIK’s transitional work between 1999 and 2008, Tansey, Regime-Building: Democratization andInternational Administration, ch. 4; Zaum, The Sovereignty Paradox, ch. 4; Murphy, UN Peacekeepingin Lebanon, Somalia and Kosovo.
  • [7] See Chesterman, You, The People, 83—7, for a brief discussion of these three cases. I set them asidehere as my concern is with transitional administrations following a peace settlement.
 
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