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American Diplomacy
Commentary and Analysis

February 1999

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COMMENTARY

The author served as U.S. ambassador to Guinea-Bissau and as deputy representative to ECOSOC at the UN in New York during his more than thirty years in the U.S. Foreign Service. See his “Vietnam Reconsidered” in Vol. III, No. 1 of American Diplomacy.
~ Ed.
“The transition from colonial rule to political and economic independence in the nation-state model is proving to be too much for some very fragile multi-ethnic societies. Perhaps reconsideration of the potential usefulness of a revised version of the old Trusteeship System is in order.”
Transitional Governance
A Return to the Trusteeship System?

by Edward Marks

FEW IDEAS ARE ABSOLUTELY NEW and the proposal that countries

with failed, failing, and oppressive governments may require

temporary assistance in governance from the international

community is, in one sense, a replay of the trusteeship system

of the League of Nations.

The increase in UN membership from the original fifty-one signatories to today’s more than 180 members is signal evidence of the success of the post-World War II drive for national independence by former colonies and other dependent territories. However, if only because of the operation of the “Law of Unintended Repercussions,” the populations of some members of this collective body of independent and sovereign states are in danger from both oppressive governments and failing governments. Both phenomena are creating serious threats to the well-being and even lives of large numbers of civilians, from Somalia to Haiti to Cambodia to Yugoslavia.

Government as a threat rather than a blessing to the populations they rule is nothing new in human history, of course, but developments in this century have made such a threat—and such behavior—increasingly unacceptable to the general world community. The process of formally creating a world community, operated by consensus, began with the League of Nations and continued with the United Nations organization. Since the formation of the UN with a charter including references to human as well as national rights, a pattern of new international agreements that refer to individuals as well as governments has interacted with increasing economic and technological globalization. As a result, the long-standing inviolability of the principal of national sovereignty and its corollary prohibition of any interference in the internal affairs of independent states has been seriously modified.

The end of the Cold War appears to have lifted certain strategic inhibitions on collective behavior. The world community, usually acting as the United Nations in some form or other, has aggressively interfered in the internal affairs of numerous formally recognized countries which themselves are member states of the UN. Cambodia, Somalia. Haiti, the successor states of the former Yugoslavia, Rwanda, Georgia, and Iraq constitute a long but still not exhaustive list. This interference has ranged from actually installing what amounted to a de facto government structure in Cambodia to mandating limits on government policy in the fundamental area of internal security, as in Kosovo.

The reasons for this interference vary from Somalia’s anarchy to Haiti’s governmental abuse of its own population. Whatever the proximate cause and excuse, in essence the international community decided to intervene in its own name and on its own authority, regardless of the wishes and desires of local authorities and personalities. In other words, the international community decided to introduce external governance in specific situations or (to use the terminology of another era) to install an international trusteeship or protectorate authority.

As heir to the League, the United Nations helped dissolve the colonial system that trusteeship reaffirmed, but it nevertheless retained trusteeship authority. The League of Nations had authorized individual states to exercise governmental authority on fairly open-ended terms in so-called dependent territories that had been colonies of nations defeated in World War I. At the same time, the League confirmed the legitimacy of the colonial system of the victors. In the current UN approach, the authority is exercised directly by the UN acting as agent for the international community in accordance with a defined and limited mandate.

That authority was not used during the period of the Cold War, for fairly obvious reasons. The end of the Cold War, however, has produced a new period of instability in world affairs with consequent dangers for innocent populations. And the world community is no longer prepared to watch such dangers unfold without taking action. The emergence of the “CNN” factor, the widespread conviction that the horrors of the Holocaust should never be repeated, and the growth in commitment to human rights have all combined to create a general feeling that the family of nations has an obligation to do something, not merely to stand by and watch large numbers of fellow human beings suffer and die without taking action.

By using the powers inherent in the UN Charter, especially Chapter VII, and various international conventions on human rights, the members of the UN have seen fit to determine that specific developments—usually internal—in certain countries constitute threats to international peace and security. On the basis of this determination, interventions of various sizes and durations have been authorized, including the assumption of governmental security, policy, and administrative powers.

This process is, of course, profoundly disturbing to many governments and observers, especially in the Third World of former colonies. It is also worrisome to those who fear any growth in international systems. It harkens back to the League of Nations’ trusteeship system, and “trusteeship” is not a friendly word to many. Yet new threats arise. It has been noted that every organized society has a recognized process by which the government assumes, if only temporarily, the responsibilities of failed institutions, ranging from families to corporations, in order to spare innocent people from the loss of protection and expected benefits. The international community is not organized in the fashion of a national entity, so it is not surprising that it has no process for dealing with failed or failing sub-institutions of its system, the nation-state. Yet it is increasingly clear that such authority is needed, as the failure of national governments to perform their responsibilities creates enormous dangers for large numbers of people

Modern colonialism was invented in the nineteenth century and earned a deservedly bad reputation in the twentieth. The international Trusteeship System was invented by the League of Nations in the 1920s and was carried largely to completion by the United Nations. Post-World War II attitudes forced the international community to fulfill the League’s original intention and brought both trusteeship and colonialism to an end. At the close of this century only a few minor remnants of the old colonial system, such as Bermuda, remain.

But the end of colonial rule and political independence has proved to be at best a mixed blessing for some countries. Rwanda and Burundi come to mind immediately, but other countries have also suffered in their post-colonial period. Post-colonial trauma, we hope, is not a permanent condition, although Zaïre’s long agony brings to mind Lord Keynes observation that in the long run we are all dead. In the short to medium run, the transition from colonial rule to political and economic independence in the nation-state model is proving to be too much for some very fragile multi-ethnic societies.

The League of Nations initiated the Trusteeship System to deal with the colonial empires of the countries defeated in World War I, especially the German Empire. The two major characteristics of the Trusteeship System that were to differentiate it from classic European colonialism were the international and legal character of political authority: Mandate replaced might; the system undertook the formal obligation that the purpose of foreign rule was eventual self-rule by and independence for the indigenous population. Trusteeship mandates were in many ways little different from colonial régimes. Certainly they must have so appeared to the subject citizens, but the inhabitants of Tanganyika, for example, were at least formally protected by the international community in the form of the League of Nations and formally guaranteed eventual freedom. Someone was watching out for their well-being under a formal system to observe and report on the behavior of the governing power. Although this system of international supervision was, at least up until the 1950s, rather perfunctory in nature, the Trusteeship System did place a moral limit on colonial governance and created a general assumption that the end of colonialism was included in the expected order of events.

The grant of trusteeship authority by the League carried with it all the appurtenances of sovereignty, including military, economic, and police powers. The trusteeship authority inherited by the United Nations and supplemented by various provisions of the UN Charter, notably Chapter VII, provides the basis for a degree of legitimacy for the exercise of the governance authority by the international organization. Certain international covenants, such as that on human rights, also imply an international authority to exercise police power, between states and within states, notwithstanding the prohibition against interference in the internal affairs of states.

The European colonial empires did dissolve in the thirty or so years after World War II, leaving the Trusteeship Council of the United Nations in place as a fossilized relic. In an unexpected development, the new-style Russian empire, the Union of Soviet Social Republics, dissolved suddenly at the beginning of the century’s last decade. This development added a number of new independent countries to the world scene.

Several years after World War II, a multinational technique called “peacekeeping” was invented for managing certain kinds of inter-state conflicts. Peacekeeping was a consensual form of crisis management operating in the interstices of the Cold War. Viewed as a marginal, minor league activity by the major powers involved in the Cold War, it was adopted with enthusiasm in the confusion of the post-Cold War world as a ready-made and readily available technique for dealing with the many nasty “little” crises which suddenly erupted around the world. In fact UN peacekeeping proved to be readily adaptable and quite useful in a number of situations. However, traditional peacekeeping soon ran up against its inherent limitations when ambitious experiments—labeled “second generation” or “expanded” peacekeeping—were conducted. Some of these have been relative successes (Cambodia), some failures (Somalia II), and some are still in process (Haiti).

These situations have increasingly arisen in situations of internal strife, if not the complete collapse of government. Therefore, in situations as far apart as Cambodia, Somalia, Haiti, and Albania internationally created and authorized forces have come to exercise the classic police power of the state, moving from martial law to the establishment of civil authority in the form of civilian police, a judiciary, and prison services. Other situations such as the Great Lakes of Africa are under consideration for international action; most observers believe the future will bring additional such problems. In these cases, the international community has gone beyond the simple mediation effort of Chapter VI operations to enforcement under Chapter VII; the exercise of governmental authority, including exercise of police power; and the classic trusteeship function of creating national institutions, including police.

“Modern peacekeeping,” to coin a new phrase, has three distinct new elements:

• It often involves extensive nonmilitary operations to deal with the humanitarian needs of populations at risk;
• it often crosses, or threatens to cross, the “Mogadishu Line” into peace enforcement requiring the use of military force; and
• it increasingly is employed in intrastate conflict.

Adding these three elements together comes perilously close to creating the bundle of classic obligations that characterize the modern nation-state. When these duties are entrusted to a multinational peacekeeping force, we have approached asking that force to be a government. Surely this was done in Cambodia, attempted in UNISOM II, and is still underway in Haiti. The international community, in order words., was responding to a case of “failed government” by appointing a trustee to manage affairs until a local government could be reconstituted and could resume control and operations. Without consciously meaning to do so, the international community has revived the Trusteeship System.

But it has not done so deliberately or formally, and attempts to perform the trusteeship function has suffered from this lack of conscious authorization, justification, and planning. With Cambodia possibly the only exception, the international assistance provided to the so-called “failed states” has often been late, sporadic, and limited in duration. Ad hoc arrangements have their place but cannot be expected to produce a permanent system, and we now seem to be in need of such an international regime. Professor Eugene Rostow commented to me in a 1997 interview that the international system, such as it is, needs the functional equivalent of America’s Chapter 12 process, by which the assets and responsibilities of a failed sub-state institution, usually private sector companies or institutions such as the family, can be managed by a neutral authority for the benefit of the wider society on the one hand and the dependents of the failed institution on the other. In the current international environment, the institution at risk is the nation-state, and when it fails populations are at risk. Some arrangement is needed to care for them pending the re-establishment of competent local government.

To create such an arrangement will not be easy, if only because of the instinctive opposition to it by a large number of countries whose independent status is relatively new and whose memory of their colonial status is still alive. Any suggestion that the international community has a duty or a right to interject itself into the internal affairs of a specific country raises the hackles of nations loosely associated in what is called in the UN the Committee of 77. This parliamentary group of more than 130 members considers itself the embodiment of the Third World in opposition to the colonial or former colonial powers of the First World. Their opposition to any expansion of intervention policy or practice surfaces even in humanitarian crises. However, it can be noted that the members of the Committee of 77 have been known to support intervention in selected cases (e.g., South Africa) and have gone along with intervention in dramatic instances of failed governments, such as Somalia and Cambodia.

The only lesson to be drawn from the history of Third World attitudes toward international intervention is that a general position of opposition (not necessarily a bad thing) can be overcome when a specific situation demands it. In almost all situations, global consensus is both difficult to obtain and necessary if international community action is to be undertaken. Multinational politics clearly is not for the fainthearted or the impatient.

Given these considerations, perhaps the experience the world had with the more positive aspects of the Trusteeship System can be reviewed to see if it can be of use in assisting with the post-colonial transition problems of many countries and the occasional collapse of others. Perhaps a new form of internationally authorized transitional governance arrangements could be designed to provide a formula and a rationale for the kind of help the international community is only fitfully providing to some of its newest members such as Somalia, Rwanda, Haiti, and Cambodia. The international community apparently needs a more comprehensive rationale or theory, a more formal procedure for authorizing and financing a temporary governing authority in a specific situation.

The obvious venue to locate this authority is, of course, the United Nations. This obviousness is not without problems, however; these arise from the basic question of defining the character of the UN. Is it a global government? Surely not, and there appears to be very little interest in making it one. But it is something more than merely a diplomatic conference (a permanent floating crap game, so to speak) and does exhibit some of the qualities of a formal confederation (with overtones, to be sure, of a voluntary fire department). It has resources and organization and is assigned tasks in the real world. It even, it should be remembered, still possesses various aspects of internationally recognized governance authority specifically in the trusteeship area, in Chapter VII, and in certain international covenants. An instrument for the implementation of a new international trusteeship régime already exists, in other words, if the international community should desire to use it.

Some new empowerment of the UN might he required. An expanded interpretation of the peace enforcement authority contained in Chapter VII of the Charter would be easy enough to adopt—given political will, that is—and would not require an amendment of the Charter. If the peacemaking and human rights responsibilities are not robust enough for member states of the UN, it follows that the use of the authority of the Trusteeship Council, currently an international forum in search of a role, might be appropriate. The Security Council could be the executive agent following a declaration of principal by the Trusteeship Council.

Many will argue that the consensus politics of the UN precludes its effective use. It is true that the UN’s political environment and practices make action time-consuming and difficult. Many of the practices and assumptions of the international scene are changing, however. While a “new world order” did not immediately result from the end of the Cold War, changes are underway. What they will produce is still unclear. Absent two superpowers, a single global leader appears to have emerged and new forms of international governance are taking hold. With new entities ranging from the European Community to ASEAN to other economic groupings, plus the dramatic emergence of non-governmental groups, the traditional role of the sovereign nation state is being circumscribed.

The current global leader appears nervous and hesitant in the role, although it would not like anyone else to take its place, and is reluctant to push the envelope of its apparent mandate. But serious problems and conflicts continue to arise and not all problems, even the apparently eternal civil war in Sudan, can be ignored forever. The exercise of governance by the United Nations in the form of a trusteeship or a protectorate offers one possible approach in some situations. Of course, in this age of democracy and mass media the exercise of political authority over a given people and territory by an external authority requires a widely acceptable process of deliberation and decision making. If the international community is even to consider authorizing the exercise of political authority over a people, for however short a time and for whatever commendable reasons, an open process by the community of nations is required, however long it might take. It is the type of decision that can only be justified by worldwide support.

The United Nations and its consensual decision making process is one way to obtain that support. The very difficulty in achieving any consensus to authorize a form of protectorate, even though limited and transitory in nature, in a failed state or an extreme humanitarian crisis would guarantee that this route would be not be decided upon often or lightly.

It would probably help, also, if a new term for this procedure were coined, as “colony” is out and neither “trusteeship” nor “protectorate” finds ready acceptance. “Fonctionaires Sans Frontières”
perhaps?


 



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