Neotrusteeship or mistrusteeship? the "authority creep" dilemma in United Nations transitional administration.

• Author: Ford, Christian Eric

ABSTRACT

State failure poses one of the greatest threats to international peace and security. The collapse of governing institutions breeds civil wars, generates refugee flows, causes enormous civilian suffering, foments instability in neighboring countries, and provides safe havens for transnational criminal and terrorist organizations. As a result, commentators and policymakers have increasingly called for a remedy to the problem of state failure. One of the most compelling arguments is to draw on an old legal institution: international trusteeship by the United Nations (U.N.). This Article argues that while trusteeship may prove effective in managing state failure, it also carries risks. International interventions typically take limited control of the domestic environment of weak countries without absorbing their sovereignty. Trusteeship, in contrast, vests enormous authority and discretion in temporary international administrators, who in turn tend to centralize their power and decision-making in order to meet challenging mission mandates under difficult conditions. This "authority creep" absorbs sovereignty and in the process risks eroding incentives for leaders of failing states to cooperate with the U.N. Worse, unmitigated authority creep may weaken the political basis for successive international administration and reconstruction efforts. This Article concludes by outlining an alternative system of oversight for U.N. transitional administrators as a means of preserving partial sovereign authority and control for domestic political actors.

1. INTRODUCTION II. THE GENEALOGY OF U.N. TRANSITIONAL AUTHORITY: FROM TRUSTEESHIP TO PEACEKEEPING, AND BACK AGAIN A. Security Council Mandates and Transitional Administration III. SOVEREIGNTY AS STRATEGIC CURRENCY A. What (if Anything)About Sovereignty Has Changed? International Relations & Political Science Conceptions of Sovereignty B. What About Sovereignty Has Not Changed? (Legal Conceptions) C. Disaggregating the Concept of Sovereignty D. Moving One Step Further: Strategic Decision-making as a Function of Political Authority and Domestic Control IV. REVITALIZING TRUSTEESHIP: TWO RECENT CASES A. United Nations Interim Administration Mission in Kosovo (UNMIK) B. United Nations Transitional Administration in East Timor (UNTAET), 1999-2002 1. Events Leading Up to the Creation of UNTAET 2. UNTAET's Mandate: Sweeping, but with Limits 3. Not What They Bargained For: East Timorese Criticism of UNTAET's "Authority Creep" C. United Nations Transitional Administration in Kosovo and East Timor: Increasing Authority, Increasing Friction V. CONCLUSIONS AND POLICY IMPLICATIONS I. INTRODUCTION

   State failure poses one of the greatest threats to international peace and security. (1) Failed and failing states foment widespread violence such as civil war and genocide, generate massive refugee crises, and provide safe harbors for terrorist and international criminal organizations. Tragically, international responses have been unable to contain the rising tide of state failure. (2) As the search for more effective responses to state failure widens, scholars and policymakers have with increasing vigor endorsed variations of trusteeship, an old international legal architecture designed to perform governance and state-building functions when a sovereign state is incapacitated. (3)

   Most commentators envision casting the United Nations (U.N.) in the role of trustee (4)--a position that builds on the U.N.'s recent role in the management of war-torn countries. (5) This management--the transitional administration of sovereign territories (6)--offers a critical lens through which to view the potential for and problems of trusteeship over failed and failing states.

   A U.N. transitional administration is distinguishable from other forms of international intervention by the degree to which it assumes a state's sovereignty. (7) In contrast, the more common, less robust types of international interventions leave sovereignty to or share sovereignty with domestic political leaders. Sovereignty sharing often leads to consensus-building and collective-action delays that can frustrate the international authority's attempt to effectively implement governance and reconstruction operations. The transitional administration or trusteeship model typically minimizes sovereignty sharing with domestic political actors and places governing authority in the hands of an administrator appointed by the U.N. Secretary General. (8) This is seen by many as a more rapid and effective means of shoring up or reconstituting governing institutions in crumbling states, implementing reconstruction operations, and disbursing funds.

   Notwithstanding the various permutations of trusteeship proposed in recent scholarship, (9) the general debate over international governance of sovereign territory has largely focused on the risks of failing to employ trusteeship, but has neglected to weigh these against the potential risks inherent to trusteeship itself. (10)

   This Article argues that Security Council resolutions vesting governing authority over sovereign territories in U.N. transitional administrations leave administrators to confront a dilemma. Administrators are given mandates that almost unavoidably contain significant ambiguity regarding the extent of their own power and the degree to which they must substantively share authority with local political actors. They must then choose between (1) using the discretion built into their mandates to exclude domestic political actors from the decisionmaking process in order to avoid the delays inherent in political consensus-building, or (2) governing by consensus with local political leaders, which may bolster the transitional administration's legitimacy, but risks delays or political entanglement. (11) This problem is amplified by the limited (and sometimes uncertain) period of time available to transitional administrators to build and oversee local governing capacity and get reconstruction efforts underway. (12) This dilemma leads to what we call authority creep. Authority creep refers to the tendency for transitional administrators to use the discretion built into a mandate to centralize their authority.

   The experiences of recent transitional administrations established to govern sovereign territories suggest that the administrators that are appointed to lead these missions tend to centralize their authority and are reluctant to share it with domestic political actors. Authority creep carries significant risks because it is at odds with state sovereignty. Sovereignty is a complex system of rights, capacities, and responsibilities emerging from the interplay between two distinct bundles of power: (1) political authority, which encompasses domestic and international legal sovereignty and carries--correctly or not--the implication of legitimacy; and (2) domestic control, or the ability to enforce compliance within a state's territory. (13) In a failed state, domestic control is often fractured along multiple axes or diffuse to the point of near-irrelevance. (14) In contrast, the other half of a state's sovereignty, its political authority--and in particular international legal sovereignty--is not as dynamic. (15)

   Political authority is one of the key sources of legitimate power for leaders in weak and failing states. (16) It is often the only factor that distinguishes a warlord from a statesman. The most maligned dictator nevertheless signs binding legal commitments, receives diplomatic immunity, and represents the state in commercial transactions and dealings with external creditors. This source of authority and power becomes all the more important as a regime's degree of domestic control becomes more uncertain.

   In such circumstances, warring groups seek territorial control and military dominance as a means to effective legal and political authority. In submitting to international intervention, actors in failed states exchange some of their means of domestic control, particularly control of their military forces, for a role in the transitional government, which confers upon them some portion of legal authority.

   This Article views the problem of authority creep prospectively and argues that the tendency towards the deepening of international control during transitional administrations carries very real risks if viewed on a long time horizon. First, authority creep leads to maximal and typically contentious intrusion of a state's sovereignty. This pattern is thus likely to reduce the probability that the permanent members of the Security Council, especially those that adhere to the more traditional view of state sovereignty as noninterference (such as China and Russia), will approve mandates establishing future international transitional administrations. (17)

   Second, and perhaps more importantly, authority creep also threatens to undercut the expectations of domestic political actors with respect to their sovereignty. (18) Sovereignty is the currency that determines the relationship between the transitional administration and prominent domestic political actors, since the latter often broker the peace arrangements that place sovereignty in the hands of an international authority in the first place. (19) These actors--whether leaders of factions contending for control of the state, or warlords operating in the absence of governing institutions--seek authority, power, and political survival. (20) The fact that these actors were involved in peace negotiations and treated by the international community as de facto political representatives reinforces an expectation that they will be meaningfully involved in the decisionmaking process once the transitional administration begins. It is unrealistic to assume that these actors no longer want the authority for which they were previously fighting; it is more reasonable to assume that they have simply chosen to pursue their...