U.S. Explores Options To Support A Democratic, Peaceful South Sudan

Co-authored by C. Danae Paterson

Neo-Trusteeships: A Re-Emerging Trend in International Assistance to Conflict-Affected States

The current government of South Sudan faces imminent, complex challenges in governing its territory and fulfilling its sovereign obligations. There is a spreading perception among many in South Sudan as well as international observers that the state is crumbling, with special concern for the infighting among South Sudanese officials that resulted in renewed violence and a severe humanitarian disaster. In the context of this devolving situation, various actors have begun to discuss the merits of establishing a “neo-trusteeship” to stabilize South Sudan.

A neo-trusteeship is a governing arrangement that involves the transfer of some or all sovereign powers to a trustee, with the goal of creating institutions capable of administering the state and providing services to citizens. At the end of the trusteeship, those powers are returned to the state. The purpose of a neo-trusteeship in South Sudan would be to halt the ongoing violence, resolve the humanitarian and economic crises, and, ultimately, to support the development of sustainable, democratic institutions with wide local support.

Indeed, just yesterday, the U.S. Senate Committee on Foreign Relations (for which I was invited to submit expert commentary, available here) sought ideas for better supporting stabilization efforts in South Sudan. At the hearing, experts discussed a number of possible frameworks for halting South Sudan’s descent into renewed conflict, and preventing the newly-created state from already disintegrating into an ungoverned one. Among these possibilities was the establishment of a neo-trusteeship.

Yesterday’s hearing was not the first time a neo-trusteeship has been put on the table for South Sudan. In light of the perceived disintegration of the South Sudanese state, various international commentators have called for the establishment of a similar mechanism in South Sudan. For instance, Princeton Lyman, former American Special Envoy for Sudan and South Sudan, has recommended that the United Nations and the African Union establish and administer an executive mandate over South Sudan.

While international trusteeships attract an understandable level of controversy, these mechanisms are increasingly the subject of consideration as possibly viable means for staving off state collapse. Of course, the choice to establish a trusteeship can be highly contentious. This is particularly so given their (sometimes wildly) varying degrees of success, as well as their general imposition of an external party’s governance over a sovereign state. For good reason, such activities can inspire poignant memories of instances where such practices were abused, perhaps most of all in the colonial era. However, the modern incarnation of trusteeships may be a reemerging institution-building tool that certain analysts believe can help establish functioning political systems and create conditions necessary for peace and security. This op-ed does not attempt to address the validity of neo-trusteeships as a general approach, but rather to provide an overview of how they operate, identify the conditions that have contributed to successful transitions, and to highlight the factors that have hampered the ability of neo-trusteeships in achieving their goals.

Despite the apprehension that a trusteeship may – appropriately – inspire in an intervention-wary global community, elements of this mechanism have successfully contributed to past nation-building efforts. However, success has largely been dependent on local government consent and cooperation. There have been more than a few neo-trusteeships in the past 25 years, and many offer important insight on how the international community can support transitional states. While it is unclear whether this is necessarily a strong or appropriate choice for South Sudan, there are nonetheless important lessons that we can learn from this challenging form of international assistance. And, ultimately, the question of whether international trusteeships retain utility in the modern era will likely remain as the global community considers other deteriorating situations, including in Yemen, the Central African Republic, Libya, and Syria.

It Wouldn’t be the First of its Kind

Neo-trusteeships are essentially the contemporary iteration of the now-inactive UN Trusteeship Council system. The UN Trusteeship Council was created in 1945 to facilitate the transitions of post-colonial territories to self-rule. The Council typically assumed sovereignty over a territory, built up state institutions, and then transferred sovereignty to local officials.

Although the era of the UN Trusteeship Council has ended, the international community continues to utilize a variety of contemporary manifestations of it, which fall broadly under the category of “neo-trusteeships.” These are often ad-hoc arrangements, and perhaps most importantly, neo-trusteeships are typically designed with the unique context of each country in mind. Mechanisms of this type have been utilized in a number of relatively recent post-conflict and transitional settings, including in Bosnia, Kosovo, East Timor, and Cambodia. They provide insight into best (and sometimes worst) practices in establishing and implementing neo-trusteeships, and shed light on what a neo-trusteeship in South Sudan could look like, and what should be avoided.

What Experience Shows

Several lessons can be drawn from the experiences of past neo-trusteeships, all of which should be considered before developing a neo-trusteeship in South Sudan. The first, and perhaps the most critical, lesson is that neo-trusteeships are far more likely to be effective and to positively contribute to sustainable capacity building when they are actively supported – and indeed invited – by state officials and the local population. Such consent promotes acceptance and a positive public perception of the trustee administration, which can facilitate the trustee’s work and support public buy-in to the process. Without this critical element in place, neo-trusteeship structures quickly erode.

Assuming a state government welcomes a neo-trusteeship, there are five lessons to keep in mind: how much sovereign power will be transferred to the neo-trusteeship, selection of the trustee, establishing a clear exit strategy and requisite benchmarks, transparency by the trustee, and physical security.

Without sufficient authority, the neo-trusteeship risks not having an adequate mandate to support the sustainable development of the host state. These powers can vary from lesser-involved activities – observation of transitional processes, providing technical advice to state officials, and assisting with various aspects of dispute resolution – to more robust involvement such as institution building, promulgating legislation, and the removal of state officials. A trustee with more power can more easily overcome obstacles and pushback on institutional development. In Cambodia, for example, the United Nations Transitional Authority in Cambodia (UNTAC) was generally judged to be most effective in the areas where it had the greatest degree of authority. Due in part to its comprehensive mandate, Cambodia’s UNTAC-supervised elections were conducted peacefully, and the widely-supported government that won the elections assumed power over a relatively stable and functioning state.

Second, the selection of a trustee – or the entity in which various sovereign powers are temporarily invested - should be conducted with due regard for public opinion of both the implementing organization and its leadership. If public confidence in the trustee is low, then the trustee’s work will become considerably more difficult. A trustee must be able to build and maintain the respect and confidence of the local population, or risk fractured public support and a constrained ability to foster the development of locally-accepted institutions. For instance, the people of Kosovo largely welcomed intervention by the United Nations Mission in Kosovo (UNMIK), due in no small part to the fact that much of the public had a positive opinion of the UN as result of the UN’s role in halting the ethnic cleansing of Kosovar Albanians. This public trust increased respect for UNMIK’s decisions, especially among Kosovo’s majority Albanian population. Similarly, the identity of the trustee can be critical to the effectiveness of a neo-trusteeship. For instance, part of the success of the United Nations Transitional Authority in Cambodia (UNTAC) is attributed to its administrator, Yasushi Akashi, a Japanese diplomat. As a regional actor – rather than a representative from the larger international community - he had a deeper understanding of the cultural norms and how best to pursue consensus among the parties. At the same time, he did not hesitate to challenge political actors and the UN in order to advocate for local interests.

Third, an exit strategy coupled with requisite benchmarks should be clearly defined from the onset. Without a clear exit strategy and benchmarks to measure progress, neo-trusteeships could easily become inappropriate substitutes for local governance or the momentum in institutional reform could dissipate once the trustee leaves. UNTAC’s success in Cambodia can be attributed to the clear benchmarks that were set– which included having a democratically elected government – and a measurable timeframe for returning sovereign powers to the state. By contrast, the lack of assessable benchmarks and a predetermined exit strategy resulted in understandable suspicion of and resentment towards the trustee’s motives and activities in Bosnia, where a neo-trusteeship continues to operate, largely without benchmarks for evaluating Bosnia’s progress. This further delays the transfer of powers to the state and termination of the neo-trusteeship. As the neo-trusteeship continues to stick around without full implementation of a number of its objectives, criticism from domestic and international observers grows.

Fourth, transparency is necessary to build public confidence in a trustee’s work. This includes communicating clearly what the authorities of a neo-trusteeship are and giving local authorities a role in the oversight of the neo-trusteeship. In Kosovo, for instance, there were efforts to hold UNMIK accountable through a Human Rights Advisory Panel; the Panel established mechanisms for the people of Kosovo to challenge the trustee’s decisions in administering the territory. Conversely, in East Timor the lack of clarity regarding the limitations of the UN’s authority under international law, the UN’s obligations to respect human rights, and the conditions upon which the trusteeship would terminate resulted in significant domestic and international criticism of the trusteeship.

Finally, almost every contemporary neo-trusteeship has been supported by a peacekeeping or stabilization force that establishes and maintains some basic rule of law. A significant and sustained peacekeeping force can supplement the trustee’s work by providing a stable environment in which institutional reforms may take root. Of course, this in and of itself represents a challenging and complex effort – and must be undertaken with serious care and responsiveness to the contours of the local context.

While various actors may increasingly view neo-trusteeships as a viable option for multiple post-conflict states, whether these complicated mechanisms come to fruition in South Sudan or in similar conflict-affected states will depend on the commitment of the international community and state governments to carefully test these state-building mechanisms.

Paul Williams holds the Rebecca I. Grazier Professorship in Law and International Relations at American University and is the co-founder of the Public International Law & Policy Group (PILPG). He is a leading world expert in peace negotiations, post-conflict constitution drafting, and war crimes prosecution. In the course of his career he has assisted in over two dozen peace negotiations and post conflict constitutions.

Danae Paterson is a graduate of Harvard Law School, and holds an MSc in Comparative Politics and Nationalism from the London School of Economics. As a public international lawyer, she specializes in peace negotiations, international humanitarian law, and human rights. She is currently a Law Fellow on PILPG’s Syria Negotiations Support team and works to advise the Syrian opposition in the peace process.

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