International Territorial Administration

by

Ntina Tzouvala

• LAST REVIEWED: 29 May 2019
• LAST MODIFIED: 29 May 2019
• DOI: 10.1093/obo/9780199796953-0185

Introduction

Few legal developments have been so closely associated with the end of the Cold War and the perceived renewal of international law as the proliferation of schemes of international territorial administration (ITA) in the 1990s and early 2000s. Schemes of ITA were implemented in a diverse range of post-conflict settings, including Bosnia and Herzegovina, Kosovo, and East Timor. Since then, ITA has been closely associated with the revival of the United Nations Security Council, its adoption of expansive interpretations of threats to “international peace and security” for the purposes for Chapter VII of the UN Charter, and the authorization of the use of force as well as of schemes of internationalized administration of varying degrees of comprehensiveness. Relatedly, the revival of interstate competition and the increasingly frequent usage of veto powers, coupled with growing unrest against the post-1990 global order, has raised doubts about the future of the practice. As both critics and supporters of ITA point out, modern ITA is not without precedent. Rather, notions of trusteeship, protectorate, mandated territories, and colonialism have been mobilized to situate the practice historically. Conceptually, international territorial administration is also associated with “robust peacekeeping,” which decisively moves away from ideas of minimal interference and neutrality, as well as with the concepts of “state-building,” “peace-building,” and “liberal peace-building.” Relatedly, the theory and practice of international territorial administration after the 1990s has been informed by ideas about “liberal peace,” the conviction that liberal democracies do not go to war with each other and, therefore, the spread of this particular form of government is a precondition for peace. Rising concerns about “weak” or “rogue” states as the breeding grounds for ethnic conflict, genocide, and terrorism also form the background of the practice. The ad hoc character of ITA has meant that the international organizations and states that are involved in each experiment vary greatly as does their mandate and lawful authority. As a result, multiple legal issues surrounding ITA remain contested and unresolved. For example, the applicability of the international law of occupation in the context of ITA is still fiercely debated, and so are issues about the human rights obligations owed by and the immunities enjoyed by international actors when they exercise de facto governmental functions.

General Overviews

Following the proliferation of the practice in the late 1990s and early 2000s legal scholars produced extensive accounts of international territorial administration (ITA) that drew from doctrinal legal scholarship but also from legal history, political theory, and international relations. Chesterman 2004 maps the tensions between the idealistic ends of ITA and the less-than-ideal means used to achieve them. He also centers his analysis around the tensions between the United Nations and the then global hegemon, the United States. Wilde 2008 provides a comprehensive account of past and present instances of ITA and offers a critique inspired by the Third World Approaches to International Law movement. Stahn 2008 is interested both in the legal and normative foundations and also situates ITA within shifts in international law post-1990. De Brabandere 2009 offers a systematic analysis of a wide range of doctrinal issues, including international human rights and international humanitarian law, and the competence of the UN. Orford 2011 straddles the lines of disciplinary fragmentation arguing that the responsibility to protect is in fact the crystallization of practices of executive rule by the UN that arose as a response to decolonization.

• Bowden, Brett, Hillary Charlesworth, and Farrell Jeremy, eds. The Role of International Law in Rebuilding Societies after Conflict: Great Expectations. Cambridge, UK: Cambridge University Press, 2009.

  This edited volume includes chapters addressing different stated objectives of international territorial administration, such as human rights protection or democratization, as well as contributions that focus on specific instances of ITA. In the introduction, the editors point out that ITA is rarely analyzed from the point of view of those subjected to it, and urge international lawyers to show modesty in their ambitions to remake foreign societies.

• Caplan, Richard. International Governance of War-Torn Territories: Rule and Reconstruction. Oxford: Oxford University Press, 2005.

  DOI: 10.1093/0199263450.001.0001

  The primary strength of this study is its detailed engagement with a diverse range of policy areas tackled by ITA in different contexts. Of particular interest is the chapter dedicated to economic reconstruction given the extensive free-market reforms enacted by international administrations. Caplan concludes that despite its shortcomings, ITA is preferable both to light-touch experiments, such as in Afghanistan, and to unilateral approaches, as in the case of the occupation of Iraq.

• Chesterman, Simon. You, The People: The United Nations, Transitional Administration, and State-Building. New York: Oxford University Press, 2004.

  DOI: 10.1093/0199263485.001.0001

  Chesterman analyzes the legal and political problems faced by international territorial administrations. He concludes that even though the aim of such schemes is the establishment of liberal democracy, the means of doing so need not conform to the same ideals and they often slide to authoritarianism.

• De Brabandere, Eric. Post-conflict Administrations in International Law: International Territorial Administration, Transitional Authority and Foreign Occupation in Theory and Practice. Boston: Martinus Nijhoff, 2009.

  This comprehensive volume will be of particular interest to those working on doctrinal legal issues pertaining to international territorial administration. De Brabandere tackles a wide range of case-studies and highlights that the role of the UN varied significantly depending on the context. The inclusion of the occupation of Iraq in the examples studied also offers useful insights into this hybrid case of internationalized administration.

• Korhonen, Outi. “International Governance in Post-conflict Situations.” Leiden Journal of International Law 14.3 (2001): 495–529.

  Korhonen offers a comprehensive overview of different paradigms of international administration that were in place in the early 21st century, while she explicitly compares the models implemented in Kosovo and East Timor. Importantly, she raises questions about the lack of responsibility, the minimal engagement of local populations, the Eurocentricity of such initiatives, as well as about their attachment to an impoverished idea of democracy with little regard to economic justice and genuine (as opposed to formal or legalistic) equality.

• Orford, Anne. International Authority and the Responsibility to Protect. Cambridge, UK: Cambridge University Press, 2011.

  DOI: 10.1017/CBO9780511973574

  In this groundbreaking study Orford connects the “responsibility to protect” doctrine with practices of international executive rule. Orford argues that the former was a way of systematizing a diverse range of practices that emerged as a response to revolution and decolonization. This book challenges the functionalist understanding of authority that accompanies much practical, theoretical, and doctrinal work on international territorial administration.

• Rees, Madeleine, and Christine Chinkin. “The Gendered Myth of Post Conflict Reconstruction: The Transformative Power of Social and Economic Rights.” New York University Journal of International Law and Politics 48 (2016): 1211–1226.

  Rees and Chinkin offer a comprehensive overview of the gender-related aspects of post-conflict reconstruction. They point out the inattention of both peace agreements and international administrations toward the links between gender relations, political economy, and conflict. Engaging closely with the work of the CEDAW Committee and of the Committee on Social, Economic and Cultural Rights they advocate for the importance of socioeconomic rights for women in post-conflict settings.

• Stahn, Carsten. The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond. Cambridge, UK: Cambridge University Press, 2008.

  DOI: 10.1017/CBO9780511585937

  This detailed study combines historical analysis with extensive doctrinal reflection and an assessment of the legitimacy and effectiveness of the practice. Stahn embraces the cosmopolitan ends of international territorial administration, while proposing certain limited reforms with a view of enhancing the accountability of international administrators.

• Wilde, Ralph. “Representing International Territorial Administrations: A Critique of Some Approaches.” European Journal of International Law 15.1 (2004): 71–96.

  DOI: 10.1093/ejil/15.1.71

  Wilder offers a broad overview of the literature on international territorial administration. His article identifies four different approaches (linear narratives of progress, a fixation with “failed states,” emphasis on the purportedly technocratic nature of ITA, and the narrative that links ITA with “post-conflict” necessities). He critiques these approaches claiming they are both misleading or inadequate and that they tent to uncritically legitimize contemporary practices.

• Wilde, Ralph. International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away. Oxford: Oxford University Press, 2008.

  DOI: 10.1093/acprof:oso/9780199274321.001.0001

  Wilde draws extensively from international legal history to demonstrate that the discourses mobilized to justify ITA closely resemble the “civilizing mission” mobilized by imperial powers. This study also carefully deconstructs the arguments that ITA is simply a responsive technique to objectively identifiable problems of sovereignty and governance. The study leans heavily toward political theory, often bracketing legal questions.