Assumptions of legitimacy: and the foundations of international territorial administration.

• Author: Dickerson, Hollin K.

1. INTRODUCTION

   In his 2000 Millennium Declaration, U.N. Secretary-General Kofi Annan stated that the United Nations is "the only global institution with the legitimacy and scope that derive from universal membership, and a mandate that encompasses development, security and human rights as well as the environment. In this sense, the United Nations is unique in world affairs." (2) In the same address, Annan also emphasized that "[w]eak states are one of the main impediments to effective governance today, at national and international levels alike." (3) Indeed, the post-Cold War phenomenon of an increasingly active United Nations portrays the Organization as one both willing and able to act upon its Charter-endowed powers of securing international peace and security to provide such governance, even if doing so involves the administration of an independent territory.

   The role that international organizations, and in particular the United Nations, play in response to the problem of "weak states" is the very subject of international territorial administration (ITA). Since the colonial era, the administration of territory by outside actors has become a well-established practice. (4) The first instance, however, of international territorial administration was the League of Nations' partial governance of the Free City of Danzig after World War I. (5) Subsequent missions have included the League's administration of the Saar territory and Leticia; United Nations operations in places such as the Congo, West Irian, Cambodia, Somalia, Eastern Slavonia and, most recently, Kosovo and East Timor; the Office of the High Representative (OHR) in Bosnia; and the European Union (EU) in Mostar. (6) These projects stand in contrast to other instances of foreign territorial administration that involve individual states as the administrative actors (as seen during the age of colonialism and under both the Mandate and Trusteeship systems). While ITA has been ongoing for decades at the level of both plenary and partial administration, some have taken to calling the post-Cold War missions as exceptional in the practice's overall history. (7) This in turn has raised concerns by some as to whether or not this practice has given rise to a new form colonialism, albeit one conducted by international organizations in lieu of states. (8) Others, however, offer these operations as examples of international liberalism at its best.

   Commentators often differentiate administration projects by the identity of the actor conducting the operations. Some have remarked that ITA projects are "so exceptionally difficult and politically sensitive that only a body with broad international legitimacy stands a chance of success." (9) The demise of colonialism and the subsequent rise of international organizations (IOs) have contributed to the development of an assumption that international organizations are somehow inherently more legitimate for undertaking territorial administration than are individual states. (l0) The result is that states and international organizations have been placed at opposite ends of a legitimacy continuum, whereby states are associated with imposed rule and self-interested motives--thereby making them illegitimate--and international organizations are viewed as benevolent, selfless, and thus, legitimate. (11)

   I argue that this normative bifurcation is oversimplified and masks very real concerns that do exist regarding the legitimacy of international organizations to carry out territorial administration, while at the same time highlighting preexisting tensions within international law as a whole. In the end, by presenting states and IOs as polar opposites with respect to territorial administration, the formulation merely legitimizes activities undertaken by IOs that are considered illegitimate when done by states. (12) A recent example of the blurring that can occur in distinguishing states from IOs has been seen in the Cote d'Ivoire. The U.N.'s mission there (UNOCI) stated that the mandate of the Cote d'Ivoire National Assembly should not be extended. Local residents saw the statement as "an affront to Ivorian sovereignty," and engaged in violent protests demanding the United Nations leave the country. (13) As one protestor put it, "[w]e want the complete liberation of Ivory Coast. I won't go home until the U.N. and France leave my country." (14)

   This article begins where previous discussions of ITA have left off by examining whether or not legitimacy can be assumed on behalf of international organizations as an administrative actor. In doing so, it explores the legitimacy of IOs as administrative actors with respect to some of the characteristics that scholars, nations, and local populations most commonly focus upon when questioning an outside actor's validity to assume territorial control. Three aspects of legitimacy will be discussed: first, the legal authority of international organizations to conduct territorial administration; second, the accountability of IOs within the context of ITA; and third, relevant factors related to certain personality traits of international organizations, specifically their reputations for selflessness and impartiality. By attempting to break ITA legitimacy down into some of its primary components, my hope is that a more honest and principled approach to future administration mandates may be realized that capitalizes on the strengths of IOs while at the same time consciously compensating for their weaknesses. This article does not seek to answer the question of whether any given ITA project was or was not legitimate and does not attempt to answer whether, in the end, international organizations themselves are wholly legitimate or illegitimate. Instead, by creating a framework for assessing the legitimacy of IOs to carry out the specific task of territorial administration, future ITA mandates can be drafted that take into account a wider variety of players, processes, and considerations than before. This, in turn, will help international organizations--and particularly the United Nations in this era of reform--to start asking themselves the right questions with respect to these missions by examining them through a more nuanced approach.

   Part II of this article defines ITA by depicting its usages in response to so-called sovereignty and governance problems, which will be defined below. Part III examines the historical basis for the state/IO distinction by briefly tracing the evolution of territorial administration through colonialism, the League of Nations, the early activities of the United Nations, and up to the current post-Cold War setting. Part IV then analyzes an ITA actor's legitimacy through the three separate lenses of legal authority, accountability, and reputation. Lastly, Part V concludes by showing that while there are reasons to doubt that international organizations are the best administration actor, by acknowledging the gaps that currently exist, efforts can now be made to bridge them.

2. AN INTRODUCTION TO INTERNATIONAL TERRITORIAL ADMINISTRATION

   ITA is a subset of the larger activity of foreign territorial administration. At a basic level, foreign territorial administration can be thought of as local governance of a territory (whether it be a state, nonstate, or substate unit) conducted by an outside actor. (15) According to Ralph Wilde, the move from individual state administration under colonialism to administration by international organizations following World War I constitutes a distinct practice, both in terms of the role performed by international organizations as well as their very identity as international--as opposed to local--actors. (16) Beginning with the League of Nations' administration of the Free City of Danzig, ITA has been used in response to essentially two types of operations, what Wilde terms sovereignty problems and governance problems. (17) Depending on which type of situation is at issue, an IO's legitimacy for undertaking a particular ITA project will be affected.

   Sovereignty problems concern the identity of who is in control and the basis upon which that control is exercised. When ITA is used to manage a sovereignty problem, it seeks to answer a larger question regarding the status of a territory. (18) In such situations, IOs are brought in to administer because they are "seen as 'neutral' as compared with the local actors to whom the sovereignty problem relates." (19) Thus, the League of Nations took control of the Saar region following World War I because it was contested territory between France and Germany. (20) Similarly in Leticia, the League responded when a group of Peruvians invaded and occupied the Colombian town--the League exercised control for a one-year period in order to serve as a neutral buffer before turning administrative control back over to Colombia. (21) The United Nations played the same role with respect to West Irian in the 1960s by conducting plenary administration for a seven-month period before the transfer of authority from the Netherlands to Indonesia. (22)

   The second type of ITA operations, those involving governance problems, occur when the basis for outside involvement is the manner of governance being exercised in a territory, rather than the identity of the actor in control. (23) The recent U.N. operations in Kosovo (United Nations Mission in Kosovo, or UNMIK) and East Timor (United Nations Transitional Assistance in East Timor, or UNTAET) are both representative of this type of administration. (24) In Kosovo, UNMIK was established following mass human rights violations by Serb leaders against Kosovar Albanians; the goal of the mission was to effect a change in the existing local governance (the Serbs), not to answer a question of who that governance was. (25) In East Timor, because the local people were not deemed to be ready or capable of assuming the responsibilities of self-governance themselves at the time...