Assumptions of Legitimacy: And the Foundations of International Territorial Administration

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I. 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. …