The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (98 page)

The fact that there is no explicit Charter basis for these territorial administrations does not mean that they have no basis in the Charter at all. Like many other actions authorized by the Security Council in the name of ‘the maintenance of international peace and security’, these instruments may not be specified by the Charter but they are sanctioned by a broad interpretation of the functions and powers of the Security Council (Article 24), the nature of ‘threats to the peace’ and ‘breaches of the peace’, and the actions that the Security Council may take in response to them (
Chapter VII
).
¹³
Historically such threats and breaches have been associated with hostile acts, in particular aggression, by one state or group of states against another. And while broad interpretations are not unprecedented – witness the adoption of UN economic sanctions and arms and oil embargoes against Southern Rhodesia and South Africa from the mid-1960s in reaction to the racist policies of those two regimes – recourse to expanded notions of threats to and breaches of the peace increased markedly in the 1990s.
¹⁴
Peacekeeping, it bears recalling, is not mentioned in the Charter either and yet is generally accepted to be a legitimate instrument of peace maintenance.

Some thought had in fact been given to a role for the Security Council in the administration of war-torn or contested territories by the drafters of the UN Charter. At the San Francisco conference, Norway proposed an amendment to the
Chapter VII
enforcement powers of the Council that would have allowed the Council to assume responsibility for the administration of a territory temporarily if administration by the occupant state was thought to pose a threat to the peace.
¹⁵
The proposal was not adopted, however, out of concern that any specification of Council powers might be interpreted to mean that other powers not specified were excluded from those available to the Council. The proposal thus became a historical footnote until the end of the Cold War, when the idea of UN ‘conservatorship’ and similar notions gained currency among scholars and analysts as a possible means of coping with the problem of so-called state failure.
¹⁶

Although no Charter provision was established for the Security Council to administer war-torn or contested territories, the prospect for such administration emerged very soon after the Charter was adopted. In 1947, in an effort to resolve the ‘Trieste Problem’ – concerning the port city and surrounding territory occupied by Yugoslavia and claimed by Italy – the peace treaty signed by the Allies and Italy provided for the establishment of a ‘Free Territory of Trieste’ whose ‘integrity and independence shall be assured by the Security Council of the United Nations’. The Council approved these arrangements, which entrusted it with responsibility for the protection of the basic human rights of the inhabitants and the maintenance of public order and security, and which envisioned the appointment of a governor by the United Nations, who would be given broad powers – comparable with those of transitional administrators today – to veto legislation, appoint and dismiss officials, and take emergency action as required.
¹⁷
The onset of the Cold War, however, prevented the appointment of a governor and the plan never materialized.

A second prospective UN territorial administration, also tabled in 1947, was for the city of Jerusalem within the context of a two-state solution for Palestine that was to be implemented following the termination of the British Mandate there. Alongside the creation of an Arab and a Jewish state, it was proposed that Jerusalem be established as a separate entity (a ‘
corpus separatum
)’ under a special international regime to be administered by the United Nations. Here, too, there was to be a UN-appointed governor, selected this time by the UN Trusteeship Council, who was to exercise executive authority as well as mediate disputes between religious groups and supervise the holy places.
¹⁸
Although in this case it was envisioned that the Trusteeship Council would assume responsibility for administration of the city, local representative bodies were to have the right to petition the Security Council on the exercise of these powers.
¹⁹
The proposal was endorsed by the General Assembly
²⁰
and the Trusteeship Council drew up a draft statute, but the war of Israeli independence in May 1948 put an end to the plan – although not an end to the idea, which lives on in the minds of some scholars and policymakers today.
²¹

To summarize, there is no explicit Charter provision for the administration of territories, except with regard to decolonization. There have been a few plans for territorial administration – one can also mention the Council for Namibia in this regard, created by the General Assembly in 1967 to serve as the legal administrator of the territory pending independence
²²
– but these plans were not implemented. Until the end of the Cold War, there was, additionally, some actual but fairly limited experience with territorial administration, notably in the context of the UN peace operation in Congo from 1960 to 1964 (ONUC), in West New Guinea in 1962 as a prelude to the transfer of this former Dutch colony to Indonesia (UNTEA),
and with the UN transitional authority in Cambodia (UNTAC).
²³
It was with the UN administrations of Kosovo and East Timor and, to a somewhat lesser extent, Eastern Slavonia that a new breed of operation was introduced. What distinguishes these administrations from all other actual, rather than proposed, UN field operations since the founding of the organization is both the
scope
of the organization’s interest in the governmental functions of the state or territory in question and its
authority
over these functions. International organizations have been active before in areas of governance thought historically to be the exclusive domain of domestic jurisdiction, for instance as part of ‘complex’ peacekeeping or peace-building arrangements that have granted the UN and its representatives intrusive powers, ranging from human rights monitoring and the supervision of elections to the demobilization of armed forces and the reorganization of police forces. Donor states and international financial institutions (IFIs), too, have encroached on traditional sovereign competences through their use of conditioned aid in support of ‘good governance’. Yet arguably never has an international body had the power and responsibility of today’s international territorial administrations in a wide range of local executive, legislative, and judicial affairs.

What role does the Security Council play, then, in the international administration of war-torn and contested territories? Apart from the initiation of these administrations,
²⁴
there are three principal functions that the Council performs. These are legitimization; oversight; and the promotion or diffusion of political, social, and economic norms.

Legitimization is what gives authority to power.
²⁵
NATO’s actions over Kosovo in 1999 may not have been lawful but UN Security Council resolutions 1199 and 1203, by acknowledging a ‘grave humanitarian situation’ and ‘an impending humanitarian catastrophe,’ and the need to prevent this catastrophe from happening, helped to legitimize NATO’s action and thus to mitigate the offence – in the eyes of many states at least – associated with NATO’s unilateral use of force. The establishment of a UN-led civilian administration in Kosovo and the deployment of a NATO-led military presence enjoyed even greater legitimacy than the war campaign by virtue of the fact that both were authorized by the UN Security Council.
²⁶
Indeed Slobodan Milosevic, the Serbian leader at the time, made it clear that the Serbian Parliament would accept the deployment of NATO forces only if the deployment were subject to an affirmative vote of the Security Council, including the approval of the Russian Federation, which is what in the end transpired.
²⁷
One can also say that, by authorizing a continuing role for NATO in Kosovo alongside the UN, the Security Council provided NATO with an exit from the purgatory to which its earlier, arguably unlawful acts had consigned it.

It is here where the distinction between international administration and military occupation is perhaps most stark. Many of the challenges that military occupations and international territorial administrations face can be very similar.
²⁸
Insofar as occupations and administrations are initiated and sustained by force, they can even be said to exhibit a strong family resemblance. Indeed, Milosevic’s concessions notwithstanding, to the average Serb there may be little difference between a UN-authorized NATO-led deployment and a foreign military occupation of Kosovo. From the standpoint of international politics, however, there can be a very important difference between the encroachment on sovereign territory by a state or group of states acting without the authorization of the Security Council and the same action as authorized by the Council.

What follows from this greater legitimacy? For one thing, the legitimacy that the Security Council can confer on a transitional administration may have implications for the ease or not of attracting donor and other external (especially regional) support. The difference between Iraq and Kosovo is instructive in this regard: donor and other support has been far easier to attract in the case of Kosovo than in the case of post-Saddam Iraq. While in other cases the lack of support may reflect a lack of interest – as with the lack of Western support for many peace operations in Africa – that would not appear to be the case with respect to Iraq. If anything, Iraq is even more important than Kosovo internationally because of its oil reserves. A key difference (but not the only difference) is the greater legitimacy that the Kosovo operation enjoys among donors and troop-contributing states – legitimacy that the Council helps to confer on the operation. While it is true that the Council acknowledged a central role for the Coalition Provisional Authority in Iraq,
²⁹
Resolution 1483 affirmed that the United States and United Kingdom were occupying powers and that the occupation was a US-UK undertaking, not a UN-sanctioned one.
³⁰

The sources of legitimacy at the international level are not necessarily the same as those at the local level. It is not evident, for instance, that Kosovars attach any particular importance to the fact that the international administration that governs them is sanctioned by the Security Council. Indeed, many if not most Kosovar Albanians would have been only too happy to be subject to a US-led military occupation. Croatian President Franjo Tudjman, too, was more concerned that the troops deployed to Eastern Slavonia were NATO forces than he was with whether the operation had the blessing of the United Nations, which he held in very low esteem.
³¹
One could say that the source of legitimacy in both of these cases is the effectiveness of the administration: can it deliver? And this is why there has been growing frustration with the UN in Kosovo, evidenced by the riots of March 2004. UNMIK is seen increasingly by Albanians to be not a vehicle but an impediment to Kosovo independence.
³²
Effectiveness, however, is not everything at the local level: in Iraq, enmity towards Westerners and the United States in particular has certainly been a key factor behind the insurgency there. This is why the United Nations historically has enjoyed certain advantages in its field operations: it is not tainted with colonialism and it is seen as blunting some of the political interests of the member states.

The second function that the Security Council performs – in theory if not necessarily in practice – is to provide oversight of the administration of a territory. AUN territorial administration is under the control of, and accountable to, the Security Council. As such, a UN administration is subject to constraints that an occupying power may be more easily able to elude – with respect to the transfer of authority to local officials, for instance, or the mechanics of post-war reconstruction, as again we have seen in Iraq, where the US initially set the agenda, in consultation with its allies, perhaps, but with arguably fewer restraints than those to which a UN operation would be subject.

What does it mean that the Security Council provides oversight of a territorial administration? To begin with, transitional administrators must comply with a variety of reporting obligations. The Security Council requires the Secretary-General to report regularly on the activities of the territorial administrations whose establishment the Council has either authorized (in the cases of Eastern Slavonia, Kosovo, East Timor) or endorsed (in the case of Bosnia and Herzegovina).
³³
In addition to these reports, the Council will often also request the transitional administrator to brief the Council directly and members of the Council may also visit the territory in question. Other international or regional organizations participating in territorial administrations, such as the World Bank and the Organization for Security and Cooperation in Europe (OSCE), have similar reporting requirements. Of course, reporting on one’s own activities has obvious limitations as far as critical examination is concerned, even if these reports often contain fairly candid assessments and, moreover, are subject to scrutiny by higher and outside authorities. There are other mechanisms of accountability, some of them official (e.g. ombudspersons and inspector generals), others unofficial (e.g. the international and local media, and international and local NGOs), but none of these other mechanisms are instruments of the Security Council.

In actual practice, however, the Security Council has not played a very significant oversight role. It has received periodic reports and briefings by the Secretary-General and his special representatives with respect to the activities of the various territorial administrations in its charge but the Council has been concerned chiefly with establishing broad strategic direction and not with the more particular aspects of administration.
³⁴
What oversight there has been has tended to be performed by the Secretariat and, in particular, its Office of Legal Affairs (OLA), which in Kosovo, for example, has reviewed UNMIK’s regulations to ensure that they do not exceed the administration’s mandate.