Chapter 4. Th e Competence of the United Nations to Engage in
A. Th e Capacity of the United Nations to Administer Territory
Even if there has been some reluctance in the past to accept the UN’s capac- ity to take over the administration of a territory, one can easily assert that this controversy is actually at an end.169 Th e capacity of the UN to set up a mission responsible for the administration of a territory on behalf of the Organisation is indeed no longer questioned as such, although some remain reluctant to accept the expanding scope of the UN’s powers, especially those of the Security Coun- cil.170 Th e debate is nevertheless worth mentioning as it relates to the discussion
169 See also de Wet supra note 9, pp. 306 et s.
170 See for an overview of this issue Sarooshi, D., Th e United Nations and the Development of Col- lective Security. Th e Delegation by the UN Security Council of its Chapter VII Powers (Oxford:
Clarendon Press, 1999).
on the possible use of the Trusteeship System in the context of peace-building operations.
One of the most fervent opponents of the capacity of the UN to administer territory outside the Trusteeship System was Hans Kelsen. In discussing the powers granted to the UN in the administration of the Free Territory of Trieste, Kelsen argued that the UN did not possess the capacity to set up an international administration, as the UN Charter already provided for a system of territorial administration, the Trusteeship System. Th e Trusteeship System established under article 81 of the UN Charter was, according to Kelsen, “the only case where the United Nations is authorized by the Charter to exercise the rights of sovereignty over a territory”.171 Interestingly, at that time, Article 24 of the UN Charter, in which UN Members confer on the Security Council the primary responsibility for the maintenance of international peace and security, was seen as the legal basis for the administration of the Free Territory of Trieste. It was argued that the situation presented a threat to international peace and security, and that, considering that the Security Council was given the responsibility to deal with the situation on the basis of Article 24 UN Charter, that provision was suffi cient to authorise the exercise of administrative powers by the UN.172 Th is can in fact be seen as an application of the doctrine of ‘implied powers’173 which, as we will see, is currently one of the legal bases of Security Council action with regard to the administration of territory. Th e a contrario reasoning proposed by Kelsen can nevertheless no longer be upheld, bearing in mind the evolution in the interpretation of several UN Charter provisions. Indeed, as will be pointed out in the next chapter, several provisions of the UN Charter can be seen as a legal basis for the establishment of an international administration.
Th e Trusteeship System cannot be considered as the only regulatory framework for all administrative powers exercised by the UN. Th e Trusteeship System was meant only to control the decolonisation process, and it cannot therefore be concluded that the system was intended as the only means of exercising admin- istrative powers. In addition, the explicit provision in the Trusteeship System authorising the UN to be administrator can be seen as a confi rmation of the Organisation’s capacity to assume governmental functions.174
171 Kelsen, H., Th e Law of the United Nations (London: Stevens & Sons Limited, 1951), pp.
833–834.
172 For a discussion, see Halderman, J. W., ‘United Nations Territorial Administration and the Development of the Charter’, Duke Law Journal 95 (1964).
173 See the statements of the representatives in the Security Council, reprinted in Halderman, supra note 172.
174 Lauterpacht, E., ‘Th e contemporary practice of the United Kingdom in the fi eld of Interna- tional law – Survey and comment’, 5 International and Comparative Law Quarterly 405 (1956), p. 28.
But before examining the diff erent provisions of the Charter which can be seen as legal bases for such comprehensive peace-building missions, it may be interesting to investigate the relationship between the current peace-building missions, international administrations and the inoperative Trusteeship System and Council. It has indeed been argued that, if the UN wanted to expand these types of missions, it would be preferable to adopt a framework for future opera- tions instead of having to rely on an ad hoc deployment of international staff .175 Th e Trusteeship Council, which had the task of supervising the administration of territories placed under the Trusteeship System, suspended all activities a month after the independence of Palau on 1 October 1994, the last remaining UN trust territory. Th e Trusteeship Council still formally exists, as the relevant articles of the UN Charter have not been amended or abolished, although it remains out of action. Some scholars have therefore argued that the trustee- ship system could be used for the administration of territories other than those summed up in the Charter.176
Th e International Trusteeship System was established in the UN Charter for the administration of trust territories placed thereunder by an individual agreement in accordance with the relevant provisions of the Charter.177 Th e International Trusteeship System applied to only three limited categories of territories: (1) territories formerly held under the mandate of the League of Nations (2) ter- ritories detached from enemy states as a result of the Second World War, and (3) territories voluntarily placed under the system of International Trusteeship by states responsible for their administration.178 It should also be added that, contrary to the Mandates System of the League of Nations, which accepted only one or more states as the administering authority, the trusteeship system explicitly provided that the administering authority could be one or more States or the UN itself.179 Th e possibility of re-using that system for the purpose of post-confl ict
175 Cf. the recommendations contained in the ‘Brahimi Report’ (Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305 – S/2000/809 (21 August 2000) [Hereafter
‘Brahimi Report’].
176 See in particular for the possibility to apply the International Trusteeship System on the Kosovo case: Franckx, E., Pauwels, A. and Smis, S., ‘An international trusteeship for Kosovo:
attempt to fi nd a solution to the confl ict’, 52 Studia Diplomatica 155 (2001), pp. 155–166 and Kelly, M.J., Restoring and Maintaining Order in Complex Peace Operations. Th e Search for a Legal Framework, (London / Th e Hague / Boston: Kluwer Law International, 1999), pp. 101–103. See for a general and comprehensive study on the ‘revitalisation’ of the Trustee- ship System: Parker, T., ‘Th e Ultimate Intervention: Revitalising the Un Trusteeship Council for the 21st Century’, Centre for European and Asian Studies, Norwegian School of Management, Report 3/2003 (April 2003).
177 See Chapters XII (International Trusteeship System) and XII (Th e Trusteeship Council) of the UN Charter.
178 Article 77, para. 1 UN Charter.
179 Article 80 UN Charter.
reconstruction may seem very attractive at fi rst, but the legal impediments to the application of the Trusteeship System as established in the UN Charter are insurmountable. Many conditions set out in the UN Charter indeed hinder any possible reapplication of this system.
Th e fi rst legal obstacle is Article 78 of the UN Charter, which provides that the system of international trusteeship shall not apply to territories which have become members of the UN as, according to Article 78, the relationship between Members of the UN “shall be based on respect of the principle of sovereign equality”. While some territories we will discuss – East Timor and Kosovo – were not members of the UN,180 Article 78 in fact excludes any application of the system to UN member States. Th e second obstacle lies in the requirement that the territory be placed voluntarily under UN trusteeship. An individual agreement has to be signed by the future trust territory and by the states concerned with its administration or by the UN.181 Th is obstacle would, for instance, hamper every administration of a territory when the administering authority, if one were eff ective, did not consent to it. In states lacking any eff ective and representative government, as in the case of Somalia at the establishment of the UNOSOM II operation, no consent can be given. Imposing international administration on a territory by a Security Council resolution under Chapter VII of the UN Charter would thus be impossible.
Th ese obstacles are prohibitive for any application of the system as established in the UN Charter. Th e only possible way out is an amendment of the Charter, but history has already shown that this is de facto not feasible. Moreover, when considering an amendment of the Charter, one has to take into account the psychological close link between the concept of trusteeship and the decolonisa- tion process aspect of any revitalisation of the UN Trusteeship System. While the context in which the Trusteeship System was envisaged cannot be compared to the peace-building missions themselves, the purpose of the trusteeship system reveals similarities with post-confl ict administrations and reconstruction.182 Th e trusteeship system’s main purpose was the progressive transfer of former colonies towards independence or self-government. Article 76 of the UN Charter con- tains the basic objectives of the System: the furtherance of international peace and security, the promotion of the political, economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence. In addition, encour-
180 See on the controversy of the membership of the Federal Republic of Yugoslavia, of which Kosovo was a Province upon establishment of UNMIK: International Court of Justice, ‘Applica- tion of the Convention on the Prevention and Punishment of the Crime of Genocide’ (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, 26 February 2007, www.icj-cij.org.
181 See article 77, para. 2 UN Charter.
182 See in particular Wilde, supra note 4.
aging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion, and guaranteeing equal treatment in social, economic, commercial and justice matters for all UN Members and their nationals were main aims of the trusteeship system. Despite these paral- lels, the reapplication of the trusteeship system will be seen by many states as a new form of colonisation, which will get in the way of every attempt or eff ort to amend the Charter in order to change the conditions of application of the trusteeship system.