Note on the “Political Trustee” Concept

Henry H. Perritt, Jr. [1]

Since the official end of the UN trusteeship system and the subsequent end of the Cold War, the international community has intervened in Bosnia, Kosovo, East Timor, Afghanistan and Iraq to set up “political trusteeships,” under which the international community exercises powers traditionally associated with sovereignty. The core of political trusteeship consists of international intervention for the betterment of the host territory population. 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 structure of these political trusteeships has varied widely.  Only in East Timor has the political trustee made a relatively clean exit.

The political trusteeship concept is modeled on a common law trust, and 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.

Recently, I published a law review article, Structures and Standards for Political Trusteeships, [2] which sought to draw lessons from international interventions in Bosnia, Kosovo, East Timor, Afghanistan and Iraq. The article offered a number of “prescriptions” for successful political trusteeships.

Kosovo is the best example of a political trusteeship. UNMIK [3] serves as the trustee, the beneficiaries are the people of Kosovo, and there is a reversionary interest in an entity to be defined in final status negotiations. UNMIK exercises most of the important attributes of sovereignty on behalf of the people of Kosovo and is empowered to transfer these attributes to local governmental entities as they qualify to receive the powers. UNMIK ultimately must terminate the trusteeship.  Upon termination, all power will devolve to institutions defined by the final-status political settlement.

Before the League of Nations and the United Nations were established, historical models such as conquest, belligerent occupation, protectorates, condominia, and peacekeeping were the only mechanisms for foreign administration of a territory. The political trusteeship concept provides a better model for intervention than these earlier models because it evolved from the League of Nations mandate system and the UN trusteeship system, both of which no longer have formal operative significance. Moreover, the erosion of legitimacy for conquest, limitations imposed on belligerent occupation by international law, and temporal limitations inherent in trustee occupation, present significant limitations for securing international legitimacy for military occupation.

Belligerent occupation is effective military control over certain areas “although the enemy has not surrendered and continues to retain control over substantial portions of his territory.” [4] A belligerent occupant must assume governmental functions at least to the extent of protecting the occupant’s forces and addressing the health and humanitarian needs of the population, but is supposed to minimize any changes to local fundamental laws and institutions. This legal requirement derives from the principle that the ousted power retains sovereignty, “albeit in a state of abeyance,” over the held territory. In pragmatic terms, the governing rule for belligerent occupation is that if a change is not absolutely necessary to protect the security and viability of the occupation, and it would be difficult to undo if the previous sovereign returns, then the change is prohibited. Conversely, if a change in the status quo is necessary to protect the immediate interests of the population of the occupied territory, then it is permissible even though the returning sovereign may have difficulty undoing it.

Belligerent occupation is insufficient to explain recent instances of international administration. In Kosovo, for example, paragraph 11 of  S.C. Res. 1244 negates belligerent occupant duties to the reversioner. [5] The rights and duties associated with the reversionary interest, if any, will be decided in the political settlement contemplated by S.C. Res. 1244.  In the meantime, it is not necessary to know the nature of the reversionary interest in order to understand the powers and duties of the trustee. In Kosovo, as in most political trusteeships, the identity of the reversioner upon termination is an open question, but one which the trustee has a duty to resolve, much like when a court holds property in trust until it can determine the property’s rightful owner, or when a common-law trustee enjoys a power of appointment. [6] An international political trustee, often contemplates a reversioner who does not possess the present political and legal capacity to accept the reversion. The trustee however, has a duty to develop capacity of a potential reversioner by building internal legitimacy for its institutions.

Unlike a belligerent occupant, a trustee has the power to transfer trust property, even when a transfer cuts off reversionary interests, as long as the trustee exercises the power consistently with the terms of the trust and its purpose.

My article offers prescriptions for successful political trusteeships--exercise of unambiguous sovereignty, building international and internal legitimacy, development of a liberal democracy, and terminating when the criteria of a well-defined exit strategy have been satisfied. Its four prescriptions are undeniably interrelated.  For example, a clearly defined trusteeship increases the capacity to build internal legitimacy, to foster liberal democracy and to pursue a coherent exit strategy. Legitimacy is increased by successes achieved in working toward a liberal democracy.  The pursuit of an appropriate exit strategy can increase internal legitimacy and help to build the institutions of a liberal democracy by increasing incentives for local political actors to invest themselves knowing that they will become the political elite upon the trustee’s exit. Success in pursuing these goals requires political sophistication, an appreciation of the link between economic progress and political stability, and a deft touch in harnessing the unique features of local culture and history to support the mission of the trusteeship.

Political trusteeships must be clearly designed from their incipience.  This requires avoiding both 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. A successful political trusteeship must be defined clearly so that adequate authority and accountability exist for effective decision-making.

Sovereignty, once clearly given to the trustee, must be complete.  It requires plenary authority to change political and economic institutions, alter property regimes, enact legislation, enforce civil and criminal law, regulate commerce, tax and spend, and represent the peoples’ trust in international relations.  Sovereignty should not be limited by notions of belligerent occupancy or peacekeeping.

Kosovo is one example where reconstruction, especially in the economic realm, was seriously impeded by limits on sovereignty.  Despite clarity in S.C. Res. 1244 about UNMIK’s responsibility for temporarily exercising sovereignty, some senior UN lawyers asserted that although UNMIK was a political trustee, it was subject to the limitations of a belligerent occupant. Therefore, it was empowered to make only those changes absolutely necessary to meet the basic needs of the indigenous population and to protect the security of international forces. This archaic limitation delayed the start of privatization of socialist enterprises for two years, also tying up property necessary for new enterprise formation because socialist enterprises controlled much of the more desirable real estate.  Eventually the legal advisers were persuaded that belligerent occupancy was too limited a model for UNMIK’s mission.

The sovereignty of the trustee should not be hemmed in by belligerent occupancy or other intervention models because such models do not accord with circumstances in recent interventions.  Specifically, belligerent occupancy assumes that: (1) the military and political situation is precarious and that the previous sovereign may regain physical control of the territory at any time and (2) limitations on sovereignty are necessary to prevent the occupant from pursuing its own interests at the expense of the local population.  Neither of these conditions has been present in the interventions in Bosnia, Kosovo, East Timor, Afghanistan, and Iraq.  With the possible exception of Kosovo, there is no expectation in any of these cases that a previous sovereign will return.  In Kosovo, the explicit provision for a final status implies that whatever Serbian sovereignty existed before the intervention will be modified substantially. Rather, the expressed intention of the intervening powers is to govern temporarily for the benefit of the population.

Political trusteeships, to be successful, must enjoy both international and internal legitimacy. While one type of legitimacy might advance the other, sometimes the reverse can hold true.  The challenge is to find a formula of political stewardship that maximizes both.

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. Complete sovereignty in the hands of the intervener does not alter the fact that the intervener is still the trustee, and ultimately accountable to the beneficiaries of the trust.  This obligation means that the trustee needs to be able to articulate and justify how the changes it makes in preexisting institutions or laws will benefit the population. Mechanisms for judicial review can assist the trustee to establish and preserve internal legitimacy.

A successful political trusteeship must develop institutions of a liberal democracy. This requires designing institutions that manage internal political competition but also draw on unique local experiences, recruiting leadership elites from without and within the trust territory, defining and implement strategies for economic development, and controlling corruption without letting the issue dominate the agenda.

Finally, successful political trusteeships must come to a close through the announcement of, and following through on, a sound exit strategy. Any viable exit strategy includes clearly defined triggers for devolving power to local institutions, thereby mitigating the inevitable tendency of post-war euphoria to turn into resentment of the trustee.

Explicit exit strategies are necessary for two reasons.  First, the international legitimacy of a political trusteeship depends on it being temporary and aimed at developing the capacity for independence.  Second, internal political dynamics inevitably will lead to local opposition to control by the trustee, especially as local political institutions mature.  A successful trustee will manage this legitimacy cycle rather than being forced into an undignified retreat when the local population becomes unwilling to tolerate its continued supremacy.

In the most recent instances of political trusteeship, there have been no concrete assurances of termination, except for precatory language encouraging devolution of power to local institutions. [7] In the case of Kosovo, however, UNMIK is obligated by article 11(e) of the Resolution, to facilitate a political process designed to determine Kosovo’s future status. [8] Delays in defining and starting this process have intensified local opposition to the political trustee. Indeed, growing resistance to the continued authority of the trustee can be seen as a measure of success for the internal legitimacy of local institutions that eventually must assume full sovereign responsibility for governing. Local political institutions, emphasizing their legitimacy based on three rounds of local and national elections, chafe under limitations on full exercise of their political power, imposed by an unaccountable UNMIK. Growing resistance to the trustee can be a useful tool in constructing the checks and balances inherent in a liberal democracy.  A sound exit strategy must manage this exchange of one form of internal legitimacy for another.

The world’s long history of colonialism teaches that local resentment of foreigners exercising sovereignty is inevitable.  Even if the locals are not ready to exercise sovereign powers on their own, they nevertheless will express resentment.  Political trustees who want to be successful must recognize the inevitability of this process and must design and execute an exit strategy that accommodates these sentiments and uses them to create incentives for the construction of a liberal democracy.

The exit strategy for any political trustee must be framed by clear criteria, or “triggers,” for devolution of power to local institutions. [9] Kosovo and Bosnia illustrate examples where triggers were not clearly defined.  In Bosnia, the sequence was reversed.  First, the local institutions retained sovereignty.  When the international community became frustrated at the slow pace of progress toward its predefined goals, however, it incrementally transferred sovereignty to the UN High Representative.  Now, the international community is defining certain benchmarks that must be satisfied before the High Representative gives power back to the local institutions and eventually withdraws altogether. [10]

In Kosovo the SRSG insisted that eight “standards” be satisfied before the UN trusteeship would begin the process of negotiating final status, but the standards were stated in general terms and accompanied by only a vague commitment to devolve further power to local institutions. [11] Efforts were underway in the fall of 2003 to operationalize the standards to provide measurable goals against which progress could be judged. [12]

Exit triggers should also encompass more than elimination of threats of violence.  Of course, power cannot be devolved to local institutions until reasonable physical security exists for all segments of the trust population. In Bosnia and Kosovo international intervention was justified in order to protect human rights against ethnic cleansing.  The interveners hardly could be expected to endorse or transfer power to a regime that is likely to commit human rights violations or ethnic cleansing. But political trusteeship is more than pacification and peacekeeping.

Exit strategies must be linked to success in establishing liberal democracy.  If political institutions are not viable, handing power to them and canceling the political trusteeship will result in a failed state.  If no reasonable scenario of economic success exists, political and physical security will be only temporary.  Accordingly, it is appropriate that trustees start with the following political criteria for ceding power:

·         The existence of political parties capable of competing with each other;

·         Demonstrated capacity to hold peaceful and fair elections;

·         Demonstrated capacity of political institutions, such as an executive, ministries, and an assembly, to make decisions and carry them out;

·         The existence of a rule of law, including functioning courts, reasonable access to those courts, reasonable promptness in making decisions, and the capacity to decide controversies that might paralyze the government or impair its implementation of decisions consistent with basic individual rights in private arrangements; and

·         Demonstrated capacity of institutions of a civil society, including a free press, universities, and voluntary associations and legal and accounting professions capable of holding political actors accountable.

The trustee also should identify benchmarks for economic viability, including:

·         Concrete progress toward establishing the basic infrastructure to support private economic activity.  This progress should include: a transportation and telecommunications system; a reliable supply of energy; and a civil administration that grants licenses and permits promptly, equitably, and honestly.

·         The existence of bodies of substantive law that support private economic arrangements and specify the terms pursuant to which commercial disputes will be resolved, including commercial contracts, property conveyances, formation of business enterprises, pooling of investments and investor security;

·         The existence of financial intermediaries necessary to channel investment funds into enterprises and to facilitate payments among trading partners, including banks, investment funds, stock markets, and other mechanisms through which entrepreneurs and investors can find each other;

·         Successful initial operation of mechanisms for restructuring inefficient existing enterprises, through privatization of state owned enterprises or bankruptcies of insolvent enterprises; and

·         Development and acceptance by relevant government authorities of a “national business strategy,” including the assembly of reasonably detailed development plans that show how private sector development will be financed, government expenditures financed, and balance of payments deficits financed.

The political trusteeship in Kosovo provides interesting parallels and contrasts with the political trusteeship in Iraq. In both cases, the political trustee is struggling over formulation of a viable exit strategy. Kosovo exemplifies multilateral administration; Iraq exemplifies unilateral administration.

In Kosovo, the United Nations is the political trustee.  In Iraq, the legal framework for the political trusteeship is based primarily on the law of military occupation, and one country--the United States--is dominant in exercising executive, legislative, and judicial power. 

The attractiveness of the political and legal framework for the political trusteeship in Iraq was premised on greater decisiveness and coherence in policy that should result from a single country calling the shots, compared with Kosovo where UNMIK decisionmaking is murky and suffers from impaired international and internal legitimacy because of suspicions of UN corruption, pro Serb motivation, and the desire of UN bureaucrats to hold on to professionally satisfying jobs resembling those of colonial administrators of a century ago.

And yet, in Iraq, the political trusteeship suffers from its own legitimacy deficits, which may stampede the political trustee into premature exit.

A comparison of the two cases provides an opportunity to consider several important questions:

¾    Whether the United States has learned the appropriate lessons from earlier political trusteeships,

¾    Whether future political trustees should follow certain precepts that increase the likelihood of success, including the development of a strategic and practicable exit strategy, and

¾    How to deal with the inevitability of growing pressure from local political forces, especially as they gain internal legitimacy to force a political trustee to wrap things up and get out.