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American Diplomacy
Commentary and Analysis

February 2000

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 Previously by Edward Marks in American Diplomacy:
 

In Transitional Governance: A Return to the Trusteeship System?:
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.


More Commentary in this issue:

Keith Moon, in Boris Yeltsin Enters the History Books:
"I
t is no surprise that Bill Clinton and Boris Yeltsin built up an admiration for each other in their seven shared years in office: they are remarkably similar men.

Curtis F. Jones, in A Retrospective on the Infernal Triangle: Lebanon, Syria, and Israel:
"Lebanon is a cauldron of rival tribes and sects. Left to its own devices, it might have joined the unhappy category of failed nations. Instead, it has been effectively partitioned between its two neighbors."


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 By Edward D. Marks

In 1684 the Treaty of Westphalia brought to a close eighty years of religious wars in Europe with new rules of international law establishing the modern state system. The foundation of this system is the sovereign character of the nation state and the solemn prohibition against interference in its internal affairs by outsiders. That rule has often been broken, but usually by those who tried to justify their action by explaining why it really was not interference or aggression, but actually some form of self defense, thus demonstrating the truth of the observation that hypocrisy is the tribute that vice pays to virtue.

Although the international rules of the road set out in the Treaty of Westphalia have been modified over the years, most recently and notably by the Charter of the United Nations, they remained more or less intact until June 10, 1999, when the UN Security Council approved Resolution 1244 (1999). With that resolution on Kosovo, the world’s major countries redefined the sovereign character of the nation state, including their own. The post-Cold War world has segued into what might be called the post-Westphalian world.

Resolution 1244 is the final act in a series of decisions and actions which, taken together, change the legal and theoretical structure of international politics. The longer trend of events reflects the “distinctive historical transformations in the late twentieth century—changes in the global production systems, new technologies, a spatial reorganization of global capitalism. . . , a recomposition of the state. . . and the end of the Cold War—a set of megaprocesses.”1

This process began at the same time as the adoption of the UN Charter, with its firm restatement of the principle of national sovereignty based on power realities—those in power physically are in charge legally. With the Universal Declaration on Human Rights, however, and the later International Covenant on Genocide, to mention only the most prominent international agreements, the countervailing principle of national obligations began to take form. Previously, national governments were responsible only for inter-state obligations, but the new human rights legislation created a set of norms designed to regulate a government’s relations with its own population. The idea began to spread that governments could be judged as legitimate or not in terms of internal, as well as external, behavior. Internal despotism, as well as external aggression, could cost a given government its right to rule.

At first this principle was used gingerly. The international community castigated the apartheid regime of South Africa and challenged its legitimacy, but only authorized the use of sanctions and embargoes in an effort to change the government’s policies. In the early years of the 1990’s, the Security Council authorized the creation of de facto UN trusteeship governments in Cambodia and Somalia, countries where, because government had collapsed, the Council decided the situation of local populations created humanitarian crises that were also threats to regional, if not international peace and security. In Haiti, the international community decided or at least acquiesced in the view strongly held by the U.S. Government that the Haitian government was illegitimate. The United States took the lead in replacing that government by forcible intervention. Most recently, UN, NATO, and the Organization on Security and Cooperation in Europe (OSCE) introduced in the Balkans a de facto international trusteeship regime in a situationwhere national sovereignties in conflict existed.

This new evolving international norm was not put directly into practice until 1999. In the period 1998 to 1999, the world community, through the medium of the UN, judged and found wanting the internal policies of the Federal Republic of Yugoslavia (FRY), a recognized sovereign nation which is a member of the UN. Beginning in March 1998, the Security Council adopted a series of resolutions on Kosovo that invoked Chapter VI of the UN Charter—the section providing authorization for the use of force by the international community where there exists a threat to international peace and security—to condemn the Belgrade government, although the use of force was not authorized until the last resolution, 1244.

NATO, claiming authority under those UN resolutions, thereupon declared invalid the authority of the current government of that nation to rule in a portion of its own territory and intervened militarily to enforce that decision. NATO then obtained a UN decision to replace the previous government with a UN trusteeship, this with intention to create a new local authority to which NATO would transfer the right of governance at a time of and in accordance with criteria of its own choosing. The UN, therefore, acting as the agent of its members and especially the members of NATO, would govern Kosovo with the assistance of a NATO military force which had obtained, admittedly after the fact, UN authorization.

Presumably the UN trusteeship regime in Kosovo—called the International Provincial Administration—will be in place several years. The tasks assigned to it by the Security Council resolution are many and difficult of accomplishment. They include not only governing Kosovo in the short run, but “organizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement, including the holding of elections.”2

The international community thus, by formal decree based on the political and moral standards outlined in the UN Charter and subsequent international agreements, has canceled—or as UN spokesman in New York was reported to have said, “suspended”—the Yugoslav government’s license to rule in Kosovo, a recognized part of its national territory.

The hitherto inviolable sovereignty of the nation state is now conditional, subject to the approval of the international community of its peers “in Security Council assembled.”

The actions taken by NATO and others in Kosovo were partially motivated and justified by the growing belief in many countries that humanitarian and human-rights considerations were the legitimate concern of the international community and therefore legitimate grounds on which to judge and act against governments that behaved badly in that respect. This belief is reflected in those international conventions dealing with human rights that have modified the UN Charter, thereby modifying the long-standing injunction against interference in the internal affairs of nations states.

This evolving principle of international law coalesced in Kosovo, facilitated by a serendipitous combination of political developments in the Balkans, Europe, and the world. British Prime Minister Blair proclaimed Kosovo a victory for the progressive approach to foreign policy, replacing outmoded concepts which placed traditional concerns of national sovereignty ahead of the right of individuals to live free from persecution.

What is particularly noteworthy is that this series of actions and legal acts (e.g., the Security Council resolution) was pursued by a number of powerful countries in the name of the international community, countries that would be appalled if any entity tried to apply the new rule to themselves. Nevertheless, the theoretical and symbolic importance of this development should not be underestimated, even if the realities of power politics limit its application in the near future to relatively small countries that paint themselves into narrow corners in the manner of the Belgrade regime.

What now? In the short run, the UN will govern Kosovo on behalf of the international community.

But what are the long-term implications of the Kosovo intervention? It is probably too much to say that it heralds the inauguration of world government, but it may not be out of line to say that it constitutes a significant step toward an integrated global political community. Economic, social, and technological globalization has been an important subject for consideration for several years, and observers have commented on how these developments have diminished the traditional power and position of national governments.

The political scene in the globalization picture, however, has remained murky. Some commentators emphasize political fragmentation, while others celebrate the unipolar world of a benevolent hegemon. Now the Kosovo precedent exists, one demonstrating a formal change in the role and status of national governments. The last decade of the century and the millennium saw the end of the Soviet Union and was labeled the post-Cold War period; in the future, we may look back on the opening decade of the new century as the first days of a post-Westphalian world.  


Ambassador Marks, a veteran senior U. S. diplomat now retired in California, has contributed a number of policy-related essays to this journal. ~ Ed.


NOTES

1. James H. Mittleman and Robert Johnston, Global Governance, Vol. 5, No. 1, January-March 1999.

2. Para. 11 (c) of Security Council Resolution 1244 (1999).

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