by Edward Marks and Marshall Adair
Editor’s Note: American Diplomacy Journal asked several foreign policy commentators to address the significance of growing chaos in many parts of the world, as failed and failing states are increasingly unable to perform the fundamental functions of the sovereign nation-state. This is one of five articles looking at those concerns.
The first two decades of the 21st century have seen explosive international terrorism, accelerating climate change, degradation of the oceans, expansion of illegal narcotics production and consumption, and a deadly worldwide pandemic. None of these respects national borders. All of them cause terrible human suffering, weaken national governments, undermine cultural integrity, and threaten peaceful relations between states.
We have not seen such widespread anarchy in the West since the Thirty Years War in Europe half a millennium ago. Out of that experience came the development of the nation-state, an institution required to fulfill two functions: to project authority over its territory and peoples and to protect its national boundaries. Now, the legitimacy of the Westphalian nation-state system is being challenged, as is the current international system which is its descendent.
National sovereignty was the foundation of the Westphalian system, and it is still sacrosanct in our international system. Governments that fail to protect their populations are nothing new in history, and for hundreds of years, the risks of intervening in the affairs of nation states generally outweighed the benefits. Today, however, what happens in one country – intentionally or by accident – increasingly affects immediate neighbors, more distant nations, continents and international human intercourse. This is destabilizing and can lead to international conflict. To mitigate that destabilization, the international community needs to become more active and adept at intervening with sovereign states to resolve anarchic pressures before they spill across national borders. The international community does, more than ever, have a “responsibility to protect.”
The current epidemic of failure and abuse is also occurring in an international environment that has seen some significant changes in the past one hundred years. A world community, operated by consensus, was initiated with the League of Nations and continued with the United Nations. The UN charter includes references to human as well as national rights, and new international agreements address individuals as well as governments. These developments have gradually impinged upon the long-standing principal of national sovereignty and the prohibition of any interference in the internal affairs of independent states.
Three developments in international law and mores are significant: the League of Nations Trusteeship system, the United Nations peacekeeping authority and the United Nations “Responsibility to Protect” mandate.
The international Trusteeship System was invented by the League of Nations in the 1920s to address the 19th century European colonial system doomed by the First World War. The League authorized specific governments to exercise governmental authority on fairly open-ended terms in so-called dependent territories that had been colonies of nations defeated in World War I. What differentiated the Trusteeship System from classic European colonialism was the international and legal character of political authority. Mandate replaced might, and the System undertook the formal obligation that the purpose of foreign rule was eventual self-rule by and independence for the indigenous population.
In many respects, Trusteeship mandates were little different from colonial regimes. Certainly, they must have so appeared to the subject citizens, but the inhabitants of Tanganyika, for example, were at least formally protected by the international community in the form of the League of Nations and formally guaranteed eventual freedom. Someone was watching out for their well-being under a formal system to observe and report on the behavior of the governing power. Although this system of international supervision was, at least up until the 1950s, somewhat perfunctory in nature, the Trusteeship System did place a moral limit on colonial governance and created a general assumption that the end of colonialism was included in the expected order of events.
The grant of trusteeship authority by the League provided the initial basis for the exercise of international governance with all the appurtenances of sovereignty, including military, economic, and police powers. Other international covenants, and eventually the UN Charter, also implied an international authority to exercise police power, between and within states, notwithstanding the prohibition against interference in the internal affairs of states.
By the close of the last century only minor remnants of the old colonial system, such as Bermuda, remained, fulfilling the League’s original intention to bring both colonialism and trusteeship to an end. While the UN suspended the Trusteeship Council’s operations in 1994, it still retains the trusteeship authority.
Several years after World War II, a multinational technique called “peacekeeping” was invented for managing certain kinds of inter-state conflicts. Peacekeeping originally was a consensual form of crisis management operating in the interstices of the Cold War. Viewed as a marginal, minor league activity by the major powers involved in the Cold War, it was adopted with enthusiasm in the confusion of the post-Cold War world as a ready-made and readily available technique for dealing with the many nasty “little” crises which suddenly erupted around the world. It proved to be readily adaptable and quite useful in a number of situations.
Traditional peacekeeping was gradually expanded by ambitious experiments—labeled “second generation” or “expanded” peacekeeping. Beginning in 1992, the use of military force to accomplish a humanitarian intervention in Somalia was authorized under Chapter VII of the Charter (Operation Restore Hope). A new wrinkle also developed with the use of the UN as a governing authority following the introduction of an intervention force. First attempted in Cambodia, UN transitional administration was later introduced in several of the territories of the former Yugoslavia and East Timor.
Since then other interventions have been authorized for a combination of humanitarian, peace, and security reasons. Innovations in actual practice have in turn impacted customary international law. The UN has also imposed a legal obligation on all states to search for and arrest war criminals. These years of practice have clearly posited the right of intervention by the international community, especially when such intervention is so authorized by the Security Council.
When extensive duties of these kind are entrusted to a multinational peacekeeping force, the international community is effectively asking the intervention force to be a government. This was the case in Cambodia, and it was attempted in Somalia (UNISOM II) and Haiti. In these instances, the international community responded to cases of “failed government” by appointing trustees to manage affairs until a local government could be reconstituted. In essence, the international community effectively revived the Trusteeship System.
Responsibility to Protect
The “Responsibility to Protect” (RTP) was a new global political commitment endorsed by all UN member states at the 2005 UN World Summit to address four key concerns: genocide, war crimes, ethnic cleansing and crimes against humanity.
The concept of RTP is based upon the premise that sovereignty entails a responsibility to protect all populations from “mass atrocity crimes” and human rights violations. Enactment is governed by a respect for the norms and principles of international law, especially relating to sovereignty, peace and security, human rights, and armed conflict.
RTP provides a framework for employing measures that already exist (i.e., mediation, early warning mechanisms, economic sanctions, and Chapter VII) to prevent atrocity crimes or protect civilians from their occurrence. The authority to employ the use of force under the framework of RTP rests solely with the United Nations Security Council and continues to be viewed with great skepticism by many governments. Although the United Nations Secretary-General has published annual reports on RTP since 2009, adding other measures available to governments, intergovernmental organizations, civil society, and the private sector, none has been actively deployed with Security Council authority.
A Policy for Anarchy?
At the 1999 UN General Assembly Session, after five decades of multi-national peacekeeping and intervention, UN Secretary-General Kofi Annan explicitly introduced the idea that state sovereignty was no longer the absolute be-all and end-all of the international system. That presentation opened a debate on the character of the international system among practitioners, theoreticians and lawyers concerned with globalization and the law of nations. What, for instance, are the responsibilities and authority of the international community in a world where individual human rights are increasingly to be balanced against the “national interests” of individual nation-states? Have actual developments in the past decades fundamentally altered the legal and practical status of national governments?
This possibility is, of course, profoundly disturbing to many governments and observers, especially in the Third World of former colonies. It is also worrisome to those who fear any expansion of international institutions or authority. It has been noted that every organized society has a recognized process by which the government assumes, if only temporarily, the responsibilities of failed institutions, ranging from families to corporations, in order to spare innocent people from the loss of protection and expected benefits. The international community is not organized in the fashion of a national entity, so it is not surprising that it has no process for dealing with failed or failing sub-institutions of its system, the nation-state. Yet it is increasingly clear that such authority is needed, as the failure of national governments to perform their responsibilities creates enormous dangers for large numbers of people.
To implement such a change of policy will not be easy. Many countries, particularly former colonies, retain an instinctive opposition to it, though some have supported intervention in selected cases like South Africa, Somalia and Cambodia. The only lesson to be drawn from the history of Third World attitudes toward international intervention is that a general position of opposition (not necessarily a bad thing) can be overcome when a specific situation demands it. In almost all situations, global consensus is both difficult to obtain and necessary if international community action is to be undertaken. Multinational politics clearly is not for the fainthearted or the impatient.
However, there is a UN record of supra-national intervention without the agreement of the disputants. As noted earlier, the international community in the early 1990s – through what was then the largest-ever UN peacekeeping operation – made an idealistic attempt to remake broken, war-ravaged Cambodia into a functioning liberal democracy. The United Nations Transitional Authority in Cambodia (UNTAC) was set up in February 1992 to implement the Paris Peace Accords of October 1991 to restore peace and civil government in a country ruined by decades of civil war and neglect, to hold free and fair elections leading to a new constitution, and to ‘kick-start’ the rehabilitation of the country. It was to exercise “supervision” or “supervision or control” over all aspects of government, including foreign affairs, national defense, finance, public security and information,
This was the first occasion in which the UN had taken over the administration of an independent member state, organized and run an election (as opposed to monitoring or supervising), and exercised a wide range of governmental authorities. It was the most comprehensive “second-generation” UN peace operation to date.
The Cambodian operation showed that the UN has significant authority for intervention and increased governance under Chapters VI and VII of the Charter. In other words, an instrument for the implementation of a new international trusteeship régime already exists and has been used. It could be a practical tool for addressing the current problem of failed governments and spreading anarchy. But, it is not the only possibility. The Dayton Accords provided for a huge stabilization force that remained in Bosnia for about 10 years, as well as for the supervision (and active intervention) of the Office of the High Commissioner – which essentially had the powers of a Viceroy.
Of course, in this age of democracy and mass media, the exercise of political authority over a given people and territory by an external authority requires a widely acceptable process of deliberation and decision making. If the international community is even to consider exercising political authority over a people, for however short a time and for whatever commendable reasons, an open process by the community of nations is required, however long it might take. It is the type of decision that can only be justified by worldwide support. Building that support is the challenge that faces us, as individual nations and as a global community.
Ambassador Marks was appointed into the Foreign Service in 1956, followed by numerous early assignments in Africa. In 1976, he was appointed Chief of Mission to the Republics of Guinea-Bissau and Cape Verde followed by service as the State Department’s Deputy Coordinator for Counterterrorism. He served in Sri Lanka as Deputy Chief of Mission and in 1989 was appointed Deputy United States Representative to the Economic and Social Council to the United Nations in New York. Retiring in 1995, Ambassador Marks has engaged in consulting and writing on foreign affairs. He was recalled to active duty in 2002-5 to serve as the Department of State’s advisor on terrorism to the United States Pacific Command.
Marshall P. Adair joined the Foreign Service in 1972 and retired in 2007. He had overseas posts in Europe, Africa, Burma and China. In Washington he served in the Economic Bureau, was Deputy Assistant Secretary for European Affairs, Deputy Assistant Inspector General, and President of AFSA (1999-2001). He also served as Political Advisor to the NATO command in Tuzla, Bosna; and Political Advisor to the Special Operations Command during the “War on Terror.” He is the author of “Watching Flowers From Horseback” about diplomatic life and work overseas; and resides with his wife, Ginger, in Arlington, Virginia. They have one son and daughter-in-law, Charles and Sarah Adair, who live in Charlotte, NC.