Preventing and Rebuilding Failed States - SSRN papers

Preventing and Rebuilding Failed States By Kirsten Schmalenbach

A. Introduction Even if the term itself was coined in the early 1990s,1 state failure is by far no new phenomenon. On the contrary, the rise and fall of polities goes back to ages far older than the notion of the modern state. 2 The same is true for the painful process of readjustment and realignment in the aftermath of disintegration. There had been times when state disintegration was considered another people's malady unless geo-political interests of certain states were affected. Without oversimplifying the current situation, one can say that the prevention and the overcoming of state failure has become a concern of the international community as the whole .. The reasons for the shift in focus are quite obvious: the number of states has more than tripled in the 20th century and many of them emerged without optimal foundations. There is no denying that states still constitute the building blocks of the present international order, be it as actors capable of shaping the legal order or as members of international organizations. 3 Metaphorically speaking, the very foundation of this international order is endangered if too many building blocks become porous. 4 Judged by popular failed state indices,S the international community of states is riddled with weak, failing and failed states, at least if one applies the full range of possible political, social and legal indicators for state failure. One may rightly question the value of "failed state rankings" for what they are -at-

1 The term was introduced by G. B. HelmanlS. R. Ratner, Saving Failed States, Foreign Policy 89 (1992), 3; the concept of the "weak" state was introduced by G. Myrdal, Asian Drama: Inquiry into the Poverty of National Nations, vol. 1-3, 1968. 2 Cf 1. A. Tainter, The Collapse of Complex Societies, 1988. 3 But see R. Ehrenreich Brooks, Failed States, or the State as Failure, University of Chicago Law Review 72 (2005), 1159, 1172 et seq. 4 Some scholars welcome the disintegration of states in favor of other visions of po litical organization; cf D. Held, Democracy and the Global Order: From the Modem State to Cosmopolitan Governance, 1995. 5 E.g. the indices of the journal Foreign Policy and The Fund for Peace.

Kirsten Schmalenbach

Preventing and Rebuilding Failed States

tention-getters. Besides this, they obscure that state continuity in whatever condition of weakness is still the norm, whereas a total state collapse remains the exception. 6 If the worst case scenario occurs, however, the consequences are grave: the factual dissolution of all governmental institutions results in a widespread breakdown oflaw and order accompanied by general banditry and chaos. 7 In this extreme case, the state remains an empty shell of formal international personality; its seat in the assembly of states is still there but unoccupied, so to speak. With no representatives authorized to act on behalf of the failed state, the international community has lost the competent addressee for its concerns. These concerns often refer to the humanitarian disaster caused by banditry, civil war and the absence of governmental facilities and services, as has more or less been the case in Somalia since 1991. However, the total collapse of state institutions is not only a Hobbesian nightmare for the local population but also a security threat for neighboring countries. 8 Since September 11, the international community suspiciously monitors fragile states in danger of disintegration under an additional heading: state disintegration enables private entities to utilize the domestic power vacuum for their own criminal aims, e.g. as a base for transnational organized crime and border-crossing terrorism. In today's world of global networks, the effects of state failure are palpable on a world-wide scale. Thus, it cannot be surprizing that most national security strategies address the issue of state failure on a high priority scale. 9

B. Anamnesis: From Weakness to Failure

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6 J. Milliken/K. Krause, State Failure, State Collapse and State Reconstruction: Concepts, Lessons and Strategies, in: 1. Milliken (ed.), State Failure, Collapse & Reconstruction, 2003, 2; R. H. JacksonlA. G. Rosberg, Why Africa's Weak States Persist: the Empirical and the Juridical in Statehood, World Politics 35 (1982), 1 et seq. 7 See the description of the phenomenon by B. Boutros Ghali, Concluding Statement by the Secretary-General before the United Nations Congress on Public International Law, in: United Nations (ed.), International Law as a Language for International Relations, 1995,9. 8 At the outset, the Security Council mentioned the destabilizing spillover effect of Somalia's collapse as the main factor that constitutes a threat to international peace and security, Res. 733 (1992),23 January 1992. Later, the magnitude of human suffering was considered a threat to peace under Art. 39 UN Charter, Res. 746 (1992),17 March 1992; cf S. D. Murphy, Nation-Building: A Look at Somalia, Tulane Journal of International and Comparative Law 3 (1995), 19,35. 9 See the National Security Strategy of the United States of America of September 2002, available at http://www.whitehouse.gov/nsc/nss.htm1; the European Security Strategy "A Secure Europe in a better World" of December 2003, available at http://www. consilium.europa.eu/uedocs/cms Upload/78367. pdf.

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No doubt, the saying "prevention is better than a cure" fully applies to state failure. This truism has been elevated to a guiding principle in the UK's 2008 security strategy paper: "[T]he most effective way to reduce the threat posed by failed states is to support fragile states in strengthening their governance, their development and their security capabilities, and to improve the capacity of the international community to act to stop states degenerating, like Afghanistan and Somalia in the L990s, or Zimbabwe today."1O Evidently, the strategy to prevent foreign states from collapsing requires the prior identification and in-depth assessment of factors indicating political fragility in different preliminary phases of state failure. The same applies to rebuilding strategies, given that the causes of state failure are necessarily the point of departure for successful measures of reconstruction. The task to identify root causes and symptoms of state failure has been extensively addressed in political science in order to provide national and international strategists with the necessary factual foundation for policy directions, e.g. with a view to early warning systems. Most considerations on causes and symptoms of state failures indirectly or directly refer to two benchmarks: The first one is the achievement of modern statehood against which a state is measured as having success or not, i.e. the effective fulfillment of state functions. The second benchmark is the practical impact of the failure to fulfill the expectations associated with modern statehood. 11 It is important to note that these benchmarks are exclusively preoccupied with empirical statehood - i. e. its de facto attributes 12 - as opposed to juridical statehood. With some simplification one can say that the judicial statehood is the birth certificate of a state through international law, issued at the very moment other states deem the empirical aspects of statehood as being in place, first and foremost the criterion of effective government. 13 Given that international practice is rather generous with the factual elements of statehood, the concurrence of judicial and empirical statehood is every now and again entirely fictional. Once judicial statehood is recognized, the international legal order clings to the state's international personality 10 National Security Strategy of the United Kingdom of March 2008, para. 2.3, available at http://interactive.cabinetoffi ce.gov. uk/documents/security/national_security_ strategy. pdf. 11 MillikenlKrause (note 6), 1. 12 Many political scientists employ the concept of empirical statehood that is influenced by Max Weber, Wirtschaft und Gesellschaft, 1922, Teil I, Die Wirtschaft und die gesellschaftlichen Ordnungen und Machte, § 17. 13 G. H. Fox, Strengthening the State, Indiana Journal of Global Legal Studies 7 (1999), 35,46.

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despite poor conditions of empirical statehood, being more concerned with legal security and continuity. 14 International actors, however, may nevertheless respond to the asymmetry caused by weak empirical statehood.

recognition and representation are the key root causes of state failure. 19 If the state refuses to allow its citizens to participate freely, openly and fully in political processes, if it denies essential freedoms and denies the rule of law, the state carries the nucleus of unrest and instability within it.20 Lastly, the modern state is expected to provide for physical infrastructure (e.g. roads and railways) and basic services (e.g. schools, water, health care, stable currency). A state which is not capable (or willing) to grant relief after a natural or man-made disaster cannot be regarded as consolidated.

As already pointed out, the identification of preliminary phases of state failures must start with the determination of the state's core functions forming the very basis of what is considered an empirically "consolidated" state. The notion of what the core state functions are varies from the minimal concept of security through to the far-reaching concept of welfare. Admittedly, attempts to select "indispensable" state functions are under the caveat that the underlying image of a modern state may be idealized, ahistorical or merely Eurocentric. Without turning a blind eye on these reproaches, three functions of modern statehood can be regarded as essential, at least from the viewpoint of the population concerned: provision of safety and security (security governance), representation of the people (political governance) and performance of basic services (socio-economic governance). 15 In order to fulfill these three core functions, a basic level of state capacity and commitment must exist: effective authority over the territory and adequate administrative capacities including personnel, skills, systems and infrastructure. 16 With regard to the guarantee of security, it is safe to say that this is the prime function of every modern state, the logical consequence of its monopoly on the use of force within the boundaries of its territory. 17 The security function may be threatened by internal and external conflicts and the erosion of the monopoly on legitimate force. With regard to the notion of representation (political governance), there is little consensus over what makes a state legitimate or representative for the people governed by it. 18 Self-determination, participation in political processes and safeguards of minority rights can be considered crucial in this respect. Conflicts over

1. Brownlie, Principles of Public International Law, 2003, 7l. Despite some deviancies, the concept of the three core functions can be found by U. Schneckner, Fragile Statehood, Armed Non-State Actors and Security Governance, in: A. BrydenfM. Caparini (eds.), Private Actors and Security Governance, 2006, 23, 31; R. 1. Rotberg, Failed States, Collapsed States, Weak States: Causes and Indicators, in: id. (ed.), State Failure and Weakness in a Time of Terror, 2003, 1, 3; MillikenlKrause (note 6), 26; see also the project of the UK Prime Minister's Strategy Unit "Countries at Risk of Instability" of February 2005, 6; for a rather different approach see 1. W Zartman, Introduction: Posing the Problem of State Collapse, in: id. (ed.) Collapsed States, 1995, 1,5: sovereign authority, tangible organization of decision-making, security guarantor. 16 F. Fukuyama, State Building: Governance and World Order in the 21st Century, 2004,6. 17 Rotberg (note 15),3. 18 Cj B. R. Roth, Governmental Illegitimacy in International Law, 1999,200 et seq. 14

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Labeling a state as "weak," "failing" or "failed" is more or less an exercise of assessing and weighing the detected deficits in the performance of the mentioned core functions. The line between these labels is not only narrow but also susceptible to various interpretations in every single case. This is not the place to go deeply into the different method-driven approaches to set up analytical frameworks for the classification of states. For the purpose of this study, it is enough to point out some common denominators. For many authors, weak or fragile states suffer from some deficits in political and socio-economic governance,21 often accompanied by intercommunal tension short ofviolence. 22 However, these states do comply with their safety and security function even though the deficits in political governance may reach deep into this sector (e.g. with regard to fundamental freedoms and the rule of law). States with semi-authoritarian or authoritarian features belong to this category; their primary "weakness" is their unresponsiveness and repressiveness. 23 Grave deficits in state-controlled security governance are regarded as typical symptoms of a failing state. Shortfalls in this field deprive the state's security apparatus of its monopoly on the use of force and reduce its role to that of one actor among others ("security governance beyond government"24), which usually goes hand in hand with the proliferation of self-organized local communities. This is a familiar scenario in civil war situations but also when the government loses control over large-scale criminal, ethnic or religious violence. If the state is nonetheless able to perform to a certain extent political and socio-economic functions in significant parts of its territory, the state remains in the stage of failing. The more the performance of these two remaining functions deteriorates, the more the state drifts MillikenlKrause (note 6), 7. Cj Fox (note 13),49-51; A. v. BogdandylSt. Hiiuj3lerlF. HanschmannlR. Utz, StateBuilding, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Different Approaches, Max Planck Yearbook of United Nations Law (Max Planck UNYB) 9 (2005), 579, 58l. 21 Schneckener (note 15),32. 22 Rotberg (note 15), 4. 23 Ibid. 19

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24

Schneckener (note 15), 34.

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towards total failure. If state institutions have evaporated or the existing institutions remain dysfunctional and inoperative, the state is commonly labeled as having collapsed irrespective of whether a central government formally exists. Since the vacuum is regularly filled by armed non-state actors and self-organization communities, the situation can be described as "security governance without government."25

and collapsed governance structures have their reappearance, comparable to the usage of national security strategies. Understandably, the Security Council and the General Assembly cautiously refrain from stigmatizing specific UN members as "weak" or "failed" for reasons of diplomacy.

The above-mentioned categorizations of weak, failing and failed states may gain some significance in the context of strategic analyses. 26 Their use for the international legal order is far from clear, though. As already pointed out, the rules of international law are tied in with judicial statehood. However, effective governmental capacities and powers are essential for the proper fulfillment of international obligations entered into by the state. Therefore, deficits in empirical statehood are legally significant under international law, especially with regard to the weak or failed state's responsibility. When the Special Rapporteur Alston reported to the Human Rights Council incidents of arbitrary executions and homicides in Guatemala, he stated that "the responsibility for this must rest with the State. Guatemala is not a failed State ( ... ).'>27 Art. 9 of the ILC Draft Articles on the Law of State Responsibility addresses acts of non-state entities carried out "in the absence or default of official authorities." Under certain conditions these acts are considered "acts of the state" despite a non-existing state apparatus. 28 Art. 9 exemplifies that international rules do not use terms like "weak," "failing" or "failed states." Instead, they refer to specific manifestations of governmental deficits under the heading of judicial statehood. This applies to the practice of the Security Council under Art. 39 UN Charter as well. It is the outbreak of severe ethnic violence or civil war, the grave suffering of civilians or the hosting of terrorists which constitutes a threat to peace, not the exchangeable label of weakness, fragility or failure. Thus, symptoms and manifestations of state fragility and failure may trigger enforcement measures under Chapter VII if the requirements of Art. 39 UN Charter are met, especially in the light ofthe Security Council's progressive interpretation. If the Security Council, however, leaves the realm of sanctions and enforcement measures and enters the field of political strategies, e.g. in its "Declaration on strengthening the effectiveness ofthe Security Council's role in conflict prevention, particularly in Africa,,,29 annexed to Res. 1626 (2005), the categories of weakened 25

Ibid.

See for example the project of the UK Prime Minister's Strategy Unit "Countries at Risk of Instability" of February 2005. 27 UN Doc. AlHRC/4120/Add. 2,19 February 2007,2. 28 Commentaries to the draft articles on responsibility of States for international wrongful acts, UN Doc. Al561l0 (SUPP), Ill. 29 SC Res. 1625 (2005), 14 September 2005. 26

c. Preventing State Failure I. The UN Prevention Strategy Given that state failure is closely linked to deficits in security governance, the UN indirectly covers the issue of state failure under the headline of conflict prevention. In search of a comprehensive conflict prevention strategy addressing the root causes of armed conflicts as well as political and social crises, the Security Council specifies the cornerstones of actions in its above-mentioned Conflict Prevention Declaration annexed to Res. 1625 (2005):30 The spectrum of envisaged preventive measures ranges from Chapter VIII cooperation to the promotion of sustainable development, poverty eradication, national reconciliation, good governance, democracy, gender equality, the rule of law as well as the respect for and the protection of human rights. The cascade of measures to prevent armed conflicts necessarily works against conditions that most likely result in state failure. In the same year, on the advice of the UN High-level Panel on Threats, Challenges and Change the Security Council and the General Assembly established a Peacebuilding Commission. As the UN High-level Panel has stated in its report, "the core functions of the Peacebuilding Commission should be to identify countries which are under stress and risk sliding towards State collapse; to organize, in partnership with the national Government, pro active assistance in preventing that process from developing further; [ ... ]':31 Contrary to these recommendations, the Commission's mandate was limited to post-conflict situations. An extension to early warnings activities aimed at preventing state failure regardless of its causes was opposed by a number of developing countries who feared their submission to constant monitoring and control. 32 The Peacebuilding Commission's present mandate is to marshal resources, inter alia to advise on and propose integrated strateFor reference see note 29. See, e.g., Report of the UN High-level Panel on Threats, Challenges and Change, A more secure world: our shared responsibility, UN Doc. Al59/565, 2 December 2004. 32 Bonn International Center for Conversion (ed.), Die Peacebuilding Commission der Vereinten Nationen. Ein Generalschllissel ftir den Frieden?, concept paper, March 2008, available at http://www.bicc.de/uploads/pdf/publications/concepCpapers/peace_build/ peacebuilding_commission_konzeptpapier.pdf, 6. 30

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gies for post-conflict peacebuilding and recovery, to focus attention, in particular, on the reconstruction and institution-building efforts, to provide recommendations and information to improve coordination and to develop best practices. 33 As an intergovernmental advisory body, the Peacebuilding Commission is currently seized with situations in Burundi, Guinea-Bissau, Sierra Leone and the Central African Republic, altogether states in a stage of fragile statehood.

isolation nor in sum, as former British Foreign Secretary Jack Straw pointed OUt. 38 All of them require a scarce commodity: political will on all sides. There was no deficiency in such willingness when Macedonia drifted towards serious ethnic conflict with civil war symptoms in January 2001. 39 Due to the effective and highly coordinated efforts of NATO, the OSCE, the World Bank and the European Union with High Representative Solana leading the way, Macedonia serves as the perhaps best example in practice of successful conflict prevention. Admittedly, the essential precondition of the success, Macedonia's willingness to accept the structural and diplomatic support, was fueled by the prospect of future EU membership.40 In many other cases, the lack of governmental amenability constitutes an insurmountable obstacle for early preventive measures offered by other states,41 ingloriously demonstrated by Zimbabwe under the reign of Robert Mugabe.

Judged by the number of declarations and reports which emphasize the need for preventive actions, the observation that a "culture of prevention is taking hold at the United N ations,,34 is quite correct. Former Secretary-General Kofi Annan, however, dampened high flying hopes when he identified in his 2006 Report an "unacceptable gap [ ... ] between rhetoric and reality in the area of conflict prevention.,,35 Annan gave weighty reasons for this assessment: 36 While the costs of prevention have to be paid in the present, its benefits lie in the distant future. These benefits are the wars and disasters that do not happen; hence, the success is not easily tangible, especially not for the broad public. 37 In addition, international and national bureaucracies have not yet removed institutional barriers that hinder cross-sector cooperation. Indeed, the lack of political will and technical barriers reduce preventive strategies too often to lip service. In addition, legal barriers such as the protective shield of sovereign equality (Art. 2 para. 1 UN Charter) and the principle of non-intervention (Art. 2 para. 7 UN Charter) may also frustrate wellintentioned efforts to prevent states from failing.

11. Duty to Cooperate There are many tools available to avert another state from failing. Some are developmental, such as direct aid, debt relief, assistance in institutional capacitybuilding and security sector reforms. Others are diplomatic, e.g. international mediation and quiet diplomacy. None of these tools are a panacea, neither in

SC Res. 1645 (2005), 20 December 2005, GA Res. 6011S0, 30 December 2005. Report of the Secretary-General on the implementation of SC Res. 1625 (2005) on conflict prevention, particularly in Africa, of 14 January 200S, UN Doc. A/200SI1S, para. 2. 35 Progress report on the prevention of armed conflict of IS July 2006, UN Doc. A/60/ 891, para. 4. 36 Report of the Secretary-General on the work of the Organization of 31 August 1999, GAOR, 54th session, supp. no. 1 (A/5411), paras. 23-25. 37 See also the speech given by the then Foreign Secretary lack Straw "Failed and Failing States" at the European Research Institute, University of Birmingham on 6 September 2002, available at http://www.eri.bham.ac.ukievents/jstraw060902.pdf. 33

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There is no denying that the duty to prevent the collapse of state institutions and functions falls first and foremost within the responsibility of the fragile state. No sovereign right to self-abandonment exists under international law. The members of the High-level Panel on Threats, Challenges and Change, established by the UN Secretary-General in 2003, stated in their final report: "In signing the Charter of the United Nations, States not only benefit from the privileges of sovereignty but also accept its responsibility. Whatever perceptions may have prevailed when the Westphalian system first gave rise to the notion of State sovereignty, today it clearly carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community.,,42 In 2001, the International Commission on Intervention and State Sovereignty, established by the Government of Canada, emphasized that the leitmotif of state sovereignty has experienced a fundamental recharacterization under the UN Charter: from sovereignty as control to sovereignty as responsibility in both internal functions and external duties. 43 It is highly doubtful, however, whether a general, comprehensive

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Ibid.

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A. 1. BellamylP. William/S. Griffin, Understanding Peacekeeping, 2004, 265-267.

40 Presidency Conclusions of the Santa Maria da Feira European Council, No. 200/1/00, 19-20 June 2000. 41 B. R. RubinlB. D. lones, Prevention of Violent Conflict: Task and Challenges for the United Nations, Global Governance 16 (2007), 391,400. 42 Report of the UN High-level Panel (note 31), para. 29. 43 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, 2001, para. 2.14. Tomuschat emphasizes that the term "responsibility" has a political and moral connotation, reflecting the tension between sovereignty and general welfare of the international community, see id., International Law: Ensuring the Survival on the Eve of a New Century, Recueil des cours 2S1 (1999),9,266.

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legal duty to cooperate flows from today's concept of sovereignty. 44 Apart from its indeterminacy, such an approach overestimates the range and the complexity of community interests as opposed to individual state interest. 45 In addition, international treaty law focuses on duties to cooperate only in specific subject-related 46 areas. Art. 56 UN Charter, for example, demands cooperation in economic and social fields in order to promote the creation of conditions of stability and wellbeing envisaged in Art. 55 UN Charter. The provision's shadowy existence47 and the fact that Art. 2 UN Charter48 does not list "cooperation" among member states' duties should not lead to premature conclusions. The fourth principle of the General Assembly's Friendly Relations Declaration clarifies that the duty to cooperate permeates other UN policy fields as well, especially the area of security and 49 human rights. Member states must fulfill their Charter-based duty to cooperate in good faith, as emphasized for all Charter obligations in Art. 2 para. 2 UN Charter. It is the common aim - the prevention of state failure - which must guide cooperation in the relevant fields, not individual advantages and interests. On the other hand, the high level of abstraction grants member states a large measure of discretion about how to discharge the duty to cooperate. 50 In addition, the essence of cooperation - understood as freely coordinated action 51 - and the principle of sovereign equality set important limits on the duty to cooperate. Without prejudice to a possible human rights obligation to accept external emergency relief, 52 no state 44 Critical in this regard Tomuschat (note 43), 262; R. Wolfrum, in: G. DahmlJ. Delbriickl R. Wolfrum (eds.), VOlkerrecht, vol. 113, 2002, paras. 172, 855. 45 Wolfrum (note 44),854. 46 See, e.g., Art. 2 para. 1 of the International Covenant on Economic, Social and Cultural Rights, 1996, UNTS, vol. 993, 3; Art. 24 of the Convention on the Protection of the Maritime Environment of the Baltic Sea Area, 1992, OJ Eur. Comm. 1994, 73; or the Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX), 12 December 1974. 47 Cj also R. Wolfrum, Art. 56, in: B. Simma et al. (eds.), The Charter of the United Nations, 2nd ed. 2002, vol. 11, 943, MN 7. 48 Art. 1 para. 3 UN Charter does not impose a duty to cooperate on member states but focuses on the duty of the UN to promote cooperation of member states. 49 For the question whether the Friendly Relations Declaration speaks of "legal duties" or merely of "moral obligations" see H. Ne uho Id, Die Pflicht zur Zusammenarbeit zwischen Staaten: Moralisches Postulat oder volkerrechtliche Norm?, in: H. Miesler et al. (eds.), Ius Humanitatis, Festschrift Verdross, 1980,575. 50 Ch. Schreuer, State Sovereignty and the Duty of States to Cooperate, in: J. Delbriick (ed.), International Law of Cooperation and State Sovereignty, 2002,163,170-173. 51 Wolfrum (note 44),852.

52 Cj Art. III para 3 of the Resolution of the Institute ofInternational Law on humanitarian assistance, 2 September 2003, available at http://www.idi-iil.orglidiE/resolutionsE/ 2003_bru_03_en.PDF; a refusal of external emergency relief in the face of gross human


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in whatever stage of failure is legally obliged to consent to specific preventive state-building measures offered by well-meaning third parties. After all, the yardstick for the fragile state's willingness to cooperate is its conduct at the negotiating table. As the International Court of Justice (ICJ) pointed out in the Continental Shelf case, negotiations must be "meaningful, which will not be the case when either insists upon its own position without contemplating any modification of it.,,53 Meaningful negotiations may lead to an agreement on wide-ranging external state-building measures and - as a possible consequence thereof - limitations of sovereign rights. But for all that cooperativeness, the consensus may suffer from a serious flaw under international law: if the consenting government of the fragile state does not represent the whole people belonging to the territory, the agreement on state-building measures supporting and stabilizing the illegitimate government may easily violate the whole people's right of internal political self-determination. 54 Today, it is widely accepted that the whole people of a sovereign state - the nation - is entitled to political self-determination and that this right is neither destroyed nor diminished by its having already once been invoked and put into effect. 55 The approach aims at protecting the people against authoritarian regimes by emphasizing the democratic element of the internal political self-determination.56 Even if the ius cogens character of this dimension of the people's right of

suffering is unjustifiable under Art. 2 and Art. 6 International Covenant on Civil and Political Rights, 1966, cf M. Novak, CCPR Commentary, 2005, Art. 2, para. 19. The G8 Leaders' Statement on Zimbabwe of 8 July 2008 para. 5, available at http://www.g8surnrnit.go. jp/eng/doc/doc080709_08_en.html, is in line with this legal conception: "The Zimbabwean authorities must allow the immediate resumption of humanitarian operations (... ) to prevent the suffering of the most vulnerable people of Zimbabwe." See also D. J. Scheffer, Towards a Modern Doctrine of Humanitarian Intervention, University of Toledo Law Review 23 (1992), 254, 258. 53 North Sea Continental Shelf case (Gennany v. Denmark), Judgment of 20 February 1969, ICJ Reports 1969,3,47, para. 85 (a). 54 St. Kadelbach, Zwingendes Volkerrecht, 1992,223. 55 A. Cassese, Self-determination of Peoples. A Legal Reappraisal, 1995, 101; for an analysis of the wording of Art. 1 CCPR ("All people have ... " instead of "shall have") see Nowak (note 52), Art. 1, para. 18. 56 Nowak (note 52), Art. 1, para. 34; see also the Vienna Declaration and Programme of Action of the World Conference on Human Rights, UN Doe. AlCONF.157123, 12 July 1993, section I, para. 2: " ... sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind."

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self-determination is difficult to establish, it constitutes an important legal barrier for third states when dealing with authoritarian regimes on the brink of failure.

duty to cooperate in the field of security, human rights and economic stability is owed to each UN member, unilateral measures to enforce cooperativeness may be qualified as countermeasures (Art. 42, 49 ILC Draft on the Law of State Responsibility), provided they fall short of direct and indirect armed force. The law of state responsibility is, however, a rather broad-brushed and awkward tool to deal with non-cooperativeness, given that the element of free will and latitude is inherent to the concept of cooperation. In addition, "cooperation" is not a comprehensive duty but displays several lacunae, especially in view of the diverse root causes and impact of state failure. 62 All in all, the problem of determining when and under what circumstances un'iIateral measures drift towards unlawfulness provides a strong argument for collective enforcement measures under Chapter VII of the UN Charter.

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Ill. Unilateral Measures and Interventions Despite academic attempts to elevate community interests to a benchmark of any state conduct, no legal duty to provide assistance for a fragile state has yet emerged. 57 If, however, states are willing to assist a fragile state but the latter's government rejects or frustrates the offer, the call for sanctions or intervention is readily made. Possible unilateral measures may pursue two aims: firstly, to unilaterally contain the symptoms and impact of state failure despite the government's refusal and, secondly, to force the government to cooperate. As the case may be, responses to non-cooperativeness easily overstep the narrow line between lawful and unlawful unilateral measures, especially with regard to the principle of nonintervention and the prohibition ofthe use offorce. 58 For the purpose of this paper, it is enough to sketch out some issues related to the duty to cooperate without rehashing the endless discussion on the lawfulness of economic coercion,59 humanitarian intervention60 and preemptive self-defense. 61 Under the premise that the 57 See Art. 139 Outcome Document of the 2005 World Summit: "We also intend to commit ourselves, as necessary and appropriate, to helping States build capacities to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out," UN Doc. N601L.1; but see Art. 41 ILC Law of State Responsibility: states shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40 [a serious breach by a State of an obligation arising under a peremptory norm of general international law]; for an assessment of the outcome document with regard to legal duty to assist or intervene see C. Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norms? American Journal ofInternational Law (AJIL), 101, (2007),99, 119. 58 Nicaragua v. United States (Merits), ICJ Reports 1986, para. 202; for the lawfulness of humanitarian aid see ibid., para. 242. 59 T. 1. Farer, Political and Economic Coercion in Contemporary International Law, AJIL 79 (1985),405-413; R. B. Lillich, Economic Coercion and the International Legal Order, International Affairs 51 (1975),358-371; D. Bowett, Economic Coercion: Past and Present, Virginia Journal ofInternational Law (VJIL) 16 (1976), 245; R. B. Lillich, Economic Coercion and the New International Economic Order, 1976; R. D. Porotsky, Economic Coercion and the General Assembly, Vanderbilt Journal of Transnational Law 28 (1995),901-958; M. Nincic (ed.), Dilemmas of Economic Coercion, 1983. 60 T. Franck, Legality and Legitimacy in Humanitarian Intervention, in: T. Nardin (ed.), Humanitarian Intervention, 2006, 143; C. C. Joyner, The Responsibility to Protect: Humanitarian Concern and the Lawfulness of Armed Intervention, VJIL 47 (2007), 693; in the

IV. Legal Limits to Chapter VII Measures This in turn leads to the question of whether the Security Council acts beyond the scope of Chapter VII when it adopts enforcement measures, e.g. targeted sanctions against state representatives misusing their powers, for the sole purpose of preventing a member state's collapse into anarchy. That much is clear: a failing state is no threat to peace by definition. As already pointed out, no objective criteria are available to clearly identify a weak or failing state. Therefore, the Security Council's practice of exclusively referring to the symptoms and root causes of state failure is not only appropriate but also legally imperative under Art. 39 UN Charter. To the extent that the outbreak of severe ethnic violence, the grave suffering of civilians or other symptoms of state failure can be seen as constituting a threat to peace, enforcement measures are within the scope of Chapter VII. The Security Council's progressive interpretation of Art. 39 UN Charter, which undoubtedly diverges from the framer's intent in 1945, thereby opens the door for preventive state-building measures. The authorization of US-led multinational forces after the violent 1991 coup d' etat in Haiti exemplifies the practice of testing the limits of the

Report of the International Commission on Intervention and State Sovereignty (note 43), the situation of state collapse and the resultant exposure of the population to mass starvation andlor civil war is considered as such conscience-shocking that it constitutes a just cause for military intervention, 33. Neither the High-Panel Report of the Secretary-General (note 42) nor the Outcome Document of the 2005 World Summit (note 57) revisited this topic. 61 R. Kolb, Self-Defence and Preventive War at the Beginning ofthe Millennium, Zeitschriftflir offentliches Recht 59 (2004), 111-134; M. Krajewski, Humanitarian Intervention and Other Use of Force?, Baltic Yearbook ofInternational Law 5 (2005),1-26. 62 Schreuer (note 50), 175.

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Charter. The Haiti case was precedent-setting for enforcement measures against unconstitutional regime changes within highly fragile states. After the multinational forces had paved the way for the elected President Aristide 's return to power in 1994, the UN Mission in Haiti (UMMIH) took over the task of sustaining a secure and stable environment, professionalizingthe nati~nal army and establishing a 64 separate police force. All of these peace-building efforts under Chapter VII prevented Haiti from drifting towards institutional and functional collapse. In cases like this, the cooperativeness of the government is desirable but, from a purely legal point of view, unnecessary since the shield of sovereignty is permeable under Chapter VII, as accentuated by Art. 2 para. 7 UN Charter.

already pointed out, the right of political self-determination has a permanent character, i.e. it does not evaporate once a sovereign state has been established. 68 In this respect, the right of self-determination provides the nation and third states with a strong legal weapon against illegitimate authoritarian regimes. 69 In many fragile state scenarios, however, the government still represents the whole people, internally and internationally. That may lead to the conclusion that the principle of sovereign equality dominates the legal relationship between the fragile state and the interfering state, superseding the people's right without extinguishing it. The fragile state's relationship to the UN is different, though. UN member states' sovereignty does not provide a defensive right against interfering enforcement measures (Art. 2 para. 7 UN Charter). When the shield of state sovereignty is partially dismantled by Chapter VII measures, the people's right to internal self-determination reemerges and must therefore be considered by the Security Council.

63

It has frequently been stressed that acting within the scope of Art. 39 UN Charter does not mean that the Security Council's powers are unlimited. 65 Any consideration of the legal limits of preventive actions addressing imminent state failure necessarily corresponds to the general discussion on the Security Council's legal ties under Chapter VII, recently rekindled in the context of the UN targeted 66 sanctions regime. Within the context of preventive state-building measures specific problems arise under the headings of "sovereignty" and "self-determination. " Unlike the principle of non-interference in internal affairs (Art. 2 para. 7 UN Charter), the principle of self-determination is legally protected in several ways. Firstly, the promotion of its respect ranks among the purposes of the United Nations (Art. 1 para. 2 UN Charter). Secondly, even outside of a colonial context, one aspect of the multifaceted right of self-determination is considered ius cogens: the right of self-determination of the people exposed to foreign domination. 67 As such, the principle has to be observed by the Security Council, acting within the limits of the UN Charter (Art. 53 Vienna Convention on the Law of Treaties). As

63

64

245

Since the people's right to self-determination is neither a static nor a clearly defined principle, preventive state-building measures under Chapter VII have to pass first and foremost the proportionality and the necessity test in. view of selfdetermination. In other words, a people's right to freely determine its political status needs to be balanced with the internationally desired effect - the prevention of state failure. Starting from that, the UN's actions under Chapter VII must take due account of existing governmental structures and state institutions representing the whole of the population. 70 The same is true for entrenched federal and autonomy rights. Vice versa, peace-building measures under Chapter VII introducing a particular form of government, federal structures or autonomy rights into the constitutional order of a centralized state require a special justification. 71 This might be the reason why the Security Council was keen to emphasize the FRY's consent to the idea of a substantially autonomous Kosovo region in Resolution 1244.72 To

SC Res. 944 (1994),29 September 1994 . SC Res. 940 (1994), 31 July 1994, para. 9.

65 ICTY (Appeals Chamber) Case No. IT-94-1-AR72, Prosecutor v. Tadic, Decision of 2 October 1995, para. 28, Human Rights Law Journal 16 (1995),437. 66 G. Thallinger, Sense and Sensibility of the Human Rights Obligations of the United Security Council, Zeitschrift fur ausHindisches Offentliches Recht und Volkerrecht 67 (2007), 1015; F. Megre tlF. Hoffmann, The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibility, Human Rights Quarterly 25 (2003),314; A. Reinisch, Developing Human Rights and Humanitarian law Accountability of the Security Council for the Imposition of Economic Sanctions, AJIL 95 (2001), 85I. 67 Cj. East Timor (Portugal v. Australia) ICJ Reports 1995,90, para. 29: "one of the essential principles of contemporary international law"; separate opinion Judge Ammoun, Barcelona Traction, Light, and Power Company Limited (Belgium v. Spain) ICJ Reports 1970,3,304; A. Orakhelashvili, Peremptory Norms in International Law, 2006, 52; for an in-depth analysis of the ambivalent state practice see Cassese (note 55), 140.

68 Nowak (note 52), Art. 1, para. 34; see also the Vienna Declaration and Programme of Action of the World Conference on Human Rights, UN Doc. AlCONF.157123, 12 July 1993, section I, para. 2: " ... sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind." 69 Cj. supra C. II. 70 Cj. G. Fox, Humanitarian Occupation, 2008, 208, who equates internal political selfdetermination with the state's political autonomy. 71 More rigid T. D. Gill, Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter, Netherlands Yearbook ofInternational Law 26 (1995), 33, 75. eT' 72 10th and 11th recital of the Preamble of Res. 1244, 10 June 1999.

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base the establishment of regional autonomy on the forced "consent,,73 of the sanctioned UN member state is neither an ideal nor a necessary line of argument in cases like Kosovo. Failure of nation-building, brought to light by violent ethnic conflicts or genocide, may justify the Security Council's interference in the internal constitutional order of a sovereign state if this is the only solution to lastingly secure the fundamental international rights of the persecuted group. In this case, the internal self-determination of the group aspiring to autonomy prevails over the internal self-determination of the nation as a whole. In contrast, the enforcement of a territory's secession under Chapter VII would arguably overstep the legal line drawn by the right of internal political self-determination of the whole of the nation. 74

in this respect because, "[t]he time has more than come when the Congolese Government will have to assume full responsibility for security, law and order in its country as well as for its territorial integrity.,,76

246

There is no point in speculating whether the Congo's long history of struggling with fragility and despotism results from the UN's decision to leave the country to its own devices. Be that as it may, the UN's and the wider international community's present attitude towards collapsed states is considerably different. In several cases since 1990, a de jure state without de facto statehood was or is kept alive by increasingly sophisticated rebuilding efforts and machineries, provided the politi77 cal will on the side of the relevant international actors exists.

I. Actors and Approaches

D. Rebuilding Failed States For ages, a stumbling state was expected to resurge by virtue of its own capacity to regenerate if not annexed or dismembered by other powers. The process of rethinking this concept started at the end of World War II due to geo-strategic interests of the US and its allies. West Germany and Japan are commonly regarded as success stories of state-building measures imposed by occupying powers in fruitful conjunction with the self-healing capacities of the defeated states. After its creation in 1945, the United Nations became rapidly involved with collapsed states, a side-effect of the decolonization process under the auspices of the organization. In the case of the then newly independent Republic of the Congo, the governmental breakdown occurred soon after the UN mission in the Congo (ONUC) was locally established with the consent of the Congolese government. By force of circumstances, the peace-keeping forces provided basic state functions, in particular restoring law and order. Four years later, in 1964, ONUC left the country without having created sustainable and long-term structures through targeted state-building efforts. 75 The Secretary-General had rejected the idea to extend ONUC's mandate 73 Ch. Tomuschat, Secession and Self-determination, in: M. G. Kohen (ed.), Secession. International Law Perspective, 2006, 23, 33. 74 M. Goodwin, From Province to Protectorate to State? Speculation on the Impact of Kosovo's Genesis upon the Doctrines oflnternational Law, German Law Journal 8 (2007), 1, 11 et seq.; for a different approach see E. Milano, Unlawful Territorial Situations in International Law. Reconciling Effectiveness, Legality and Legitimacy, 2006, 217 et seq.; M. Herdegen, Der Wegfall effektiver Staatsgewalt im Vdlkerrecht: The Failed State, Berichte der Deutschen Gesellschaft fUr V dlkerrecht, vol. 34, 71. 75 C. Stahn, The Law and Practice of International Territorial Administration, 2008, 246.

If rebuilding strategies are at issue, most analyses concentrate on external efforts to help the failed state back on its feet. It is incontestable, however, that domestic actors are fIrst and foremost competent to accomplish this task. This is what the Security Council had in mind when "recognizing that the people of Somalia bear the ultimate responsibility for setting up viable national political institutions and for reconstructing their country.,,78 As a rule, either a military victory or a more or less uneasy peace between civil war factions is the starting point of internal rebuilding processes. 79 Apart from the major problem of pseudo or fragile peace, internal efforts to rebuild governmental structures often fail due to the difficult task of transforming raw power into authority, armed movements into 8o civil political institutions and self-interest into common interest. In addition, domestic actors are usually lacking the necessary resources for the Herculean task of rebuilding a state from scratch. Such unfavorable conditions and the apprehension that internal processes may not bring about the internationally desired democratic structures may lead to interventions of external actors, i. e. international organizations and other states. Depending on the political will of the external actors to devote resources, these interventions can be selective or comprehensive. Selective rebuilding measures are aimed at triggering, supporting and directing internal self-healing processes. However, if only a few root causes of state failure 76

UN Doc. S/5784, 42; United Nations Department of Public Information, The Blue

Helmets, 3rd ed. 1996, 199. 77 Cj M. Ottaway, Rebuilding State Institutions in Collapsed States, in: Milliken (note 6),245,246. 78 5th recital of SC Res. 897 (1994),4 February 1994. 79 Cj Ottaway (note 77), 257. 80 Ibid.

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are addressed, it is highly probable that the fresh start carries with it the seed of the next collapse. Comprehensive approaches are more promising but require a strong military and civil international presence within the failed state. On rare occasions, external actors step into the abandoned shoes of the collapsed state and provide governmental functions while working on lasting state institutions. In these cases, the failed state is under international administration or occupation, pacific or belligerent, depending on circumstances and label.

territorial administrations under the authority of the UN such as UNMIK in Kosovo and UNTEAT in East Timor are best examples for comprehensive state-building projects. However, since they do not involve preceding state failure, these cases belong to a different category of missions.

Much has been written about the best practice of state reconstruction extracted from completed or discontinued projects. International organizations such as the UN and the IMF have developed a set of prescriptions, ranging from the re-establishment of a pacified environment to capacity-building of tax collection 8I agencies. Unsurprisingly, international actors engaged in rebuilding state structures are more concerned with political strategies than with legal frameworks. However, external rebuilding efforts do not take place in a legal vacuum.

ll. Law Governing United Nations State-Building Missions In the majority of failed state scenarios, the UN is at the forefront when external rebuilding measures are needed. In this regard, the organization's efforts in the 82 Congo (MONUC ), Somalia (UNOSOM II 83 ), Mozambique (ONUMOZ84), Cam85 bodia (UNTAC ), and Sierra Leone (UNAMSIL86) tell stories of successes and failures, setbacks and improvements in the field of state reconstruction. Admittedly, not all of these cases involved a total collapse of governmental institutions. In this regard, Somalia remains an often-cited textbook example, closely followed by Cambodia and Sierra Leone. Provided with more or less strong civilian mandates, the UN mission performed selective governmental functions (e.g. UNAMSIL), de facto governance (UNOSOM II) or transitional authority (UNTAC). International

81

Ibid., 250-252.

SC Res. 1279 (1999), 30 November 1999. 83 Established by SC Res. 751 (1992), 24 April 1992; see generally Ch. E. Philipp, Somalia - A Very Special Case, Max Planck UNYB 9 (2005), 517. 84 Established by SC Res. 797 (1992), 16 December 1992. 85 Established by SC Res. 745 (1992), 28 February 1992; see generally L. Keller, UNRAC in Cambodia- from Occupation, Civil War and Genocide to Peace, Max Planck UNYB 9 (2005), 127; Stahn (note 75),269-279. 86 Established by SC Res. 1270 (1999), 22 October 1999, and 1289 (2000),7 February 2000; see generally M. Goldmann, Sierra Leone; African Solutions to African Problems?, Max Planck UNYB 9 (2005),457. 82

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Irrespective of whether the UN mission shares governmental authority with domestic institutions or completely replaces inoperable administrative institutions within a collapsed state, the mission's powers usually rest on a mandate authorized by the Security Council under Chapter VII.87 With no legitimate government representing the collapsed state, recourse to enforcement measures is unavoidable given that the collapsed state is incapable of agreeing to the mandate and the deployment of the UN mission. Since it is the Security Council's major task to maintain international peace and security, it stands to reason that a collapsed state has to be safeguarded against the covetousness of other states. To this end, the collapsed state benefits from the legal fiction of de jure statehood. Its protective shield of sovereign equality (Art. 2 para. 1 UN Charter) and territorial integrity (Art. 2 para. 4 UN Charter) remains intact with respect to third states, only penetrable by Chapter VII measures. 88

1. Right to Internal Self-Determination

The internal aspect of the sovereignty of a collapsed state, however, is a totally different issue. With no operable government structures left in a collapsed state, it is up to the population concerned to authorize the new representatives of popular sovereignty.89 Given its ius cogens character and its embeddedness in the UN Charter (Art. 1 para. 2 and Art. 55 UN Charter), the right of internal self-determination has to be respected by the Security Council even if the state-building mission is mandated under Chapter VII. Activities that lastingly obstruct a people's

87 For the rationale behind the obligatory Chapter VII mandates see the Report on United Nations Peace Operations, UN Doc. Al55/305-S12000/809 (2000), para. 213: " ... even the most benign environment can turn sour - when spoilers emerge to undermine a peace agreement and put civilians at risk ( ... )." For the respective legal basis of postconflict missions ef Fox (note 70), 66. 88 5th recital of SC Res. 897 (1994), 4 February 1994: "Bearing in mind respect for the sovereignty and territorial integrity of Somalia in accordance with the Charter of the United Nations." 89 J. L. Cohen, The Role of International Law in Post-Conflict Constitution-Making: Towards a Jus Post Bellum for "Interim Occupations," New York Law School Law Review 51 (2006-2007),497,522.

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right to self-determination and its "ultimate responsibility,,90 are unlawful under the UN Charter. Moreover, UN efforts within a collapsed state must be appropriate to bring internal self-determination to fruition. Yet these two benchmarks, plausible as they are, oversimplify the complex situation within a failed state. Too often, a unified nation or "people" qualified for internal self-determination does not exist because civil wars and ethnic conflicts have caused deep rifts within the population. When nationhood no longer provides the foundation of accepted public power, state-building measures may have no proper foundation. 91 Vice versa, measures of nation-building may require previous efforts to create a state constitution and to establish some unified governmental structures that pool local authority.92 To a certain extent, UN state-building measures necessarily set the course for the political and economic future of the reinvigorated state and thus interfere with the people's right to freely decide upon its political future and the economic system.93 At this point, it is evident that self-determination is not a rigid legal barrier for state rebuilding strategies. The conflicting duties of the UN - to respect the peopIe's right of internal self-determination and to restore sustainable state structures guaranteeing lasting peace and security - have to be balanced within the process 94 of state-building. On the one hand, the people's right of internal self-determination demands early participation and gradual empowerment of local actors as well as respect for legal and political traditions. 95 On the other hand, it does not necessarily require early elections of a constituent assembly or other democratic institution if that strategy would foil the UN's latter duty to work towards sustainable state structures. Depending on the circumstances within the failed state, it may be sufficient that, for the benefit of sustainability, popular vote subsequently legitimates already accomplished state-building measures. Seen from this angle, all laws and institutions that derive their legitimacy exclusively from the international mandate carry with them an inherent expiration date, to be replaced sooner or later by laws and institution based on the will of the people. 96

90

91

Cj 5th recital of SC Res. 897 (1994),4 February 1994. BogdandylHaufilerlHanschmannlUtz (note 20), 585.

92 R. Wolfrum, International Administration in Post-Conflict Situations by the United Nations and Other International Actors, Max Planck UNYB 9 (2005), 649, 654. 93 Id., 680. 94 H. F. Kiderlen, Von Triest nach Osttimor. Der vOlkerrechtliche Rahmen fur die Verwaltung vonKrisengebieten durch die Vereinten Nationen, 2008, 298. 95 Herdegen (note 74),70. 96 Cj Stahn (note 75),461.


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2. Law of Occupation and Human Rights Law The legal regime governing UN state-building missions is one of the controversial topics discussed in academia. 97 It is beyond argument that the law applicable to UN state-building missions originates from many different sources, first and foremost the international mandate set out or endorsed by resolutions of the Security Council and substantiated by internal UN rules (e.g. rules of engagement). In some cases, the UN assumes administrative functions by international agreement concluded between member states. For example, the 1991 Paris Ac~ord on a comprehensive political settlement of the Cambodia conflict set out wlderanging powers for a UN administration (UNT AC) on behalf of the Supreme National Council ofCambodia. 98 Apart from the legal framework designed for and confined to the UN mission, all UN organs have to comply with Charter-based rules (internal obligations) and - if applicable - general international law (external obligations). Today, it is a commonplace observation that the UN, the prototype of an international organization, possesses international personality and thus bears not only international rights but also international duties. 99 Given that the UN is neither party to human rights treaties nor to the four Geneva Conventions and their Additional Protocols, international customary law is the main source of law to be observed by the UN (external obligations). In this context, the question arises whether the Security Council- when acting under Chapter VII - is empowered to overrule the organization's legal obligations under customary law. lOO This perception is difficult to dismiss although it is not explicitly prescribed by the UN Charter. The starting point of the legal argument is Art. 103 UN Charter. According to this provision, member states have to comply with their obligation under the UN Charter irrespec-

97 See, e.g., Stahn (note 75); Kiderlen (note 94); R. Wilde, International Territorial Administration, 2008. 98 Agreement on a Comprehensive Political Settlement of the Cambodian Conflict concluded between Australia, Brunei Darussalam, the Supreme National Council for Cambodia, Canada, China, India, France, Indonesia, Japan, Laos, Malaysia, the Philippines, Singapore, Thailand, the Union of Soviet Socialist Republics, the United Kingdom, the United States, Viet Nam and the Socialist Federal Republic of Yugoslavia, UNTS, vol. 1663,27. 99 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174, 179. 100 J. A. FroweinlN. Krisch, Introduction to Chapter VII, in: Simma et al. (note 47), vol. I, MN 27; generally on the issue Gill (note 71),33.

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tive of conflicting international treaty obligations. lol The same applies to member states' customary obligations by virtue of the purpose pursued by Art. 103 UN Charter in conjunction with Art. 25 and 48 UN Charter. 102 If, for example, an ad hoc criminal tribunal established under Chapter VII demands the extradition of a head of state, member states must not deny this request with reference to their obligations under customary immunity law. By the same token, the UN tribunals are in the position to convict a head of state without violating customary immunity law simply because the criminal tribunal received its mandate under Chapter VIL I03 The notion that Chapter VII measures may overrule conflicting international obligations otherwise incumbent upon the UN is less far-reaching than one may assume and certainly has its limits. First of all, ius cogens obligations remain sacrosanct under the UN Charter pursuant to Art. 53 Vienna Convention on the Law of Treaties. Secondly, the UN Charter does not give carte blanche to UN organs; only if the fulfillment of the mandated duties requires non-compliance with general international law obligations, a Security Council-authorized mandate will prevail over conflicting customary law. Finally, irrespective of whether the mandate is authorized under Chapter VII, the Security Council (as well as other UN organs) must comply with Charter-based rules. These internal obligations gain specific importance in the field of human rights law. If taken literally, Art. 1 para. 3 and Art. 55 UN Charter exclusively deal with the UN's duty to promote and encourage member states' respect for human rights. This one-way approach made perfect sense in times when only states exercised authority over individuals. 104 Today, however, it is generally accepted that the UN acts within its functions and powers when performing governmental functions in situations that constitute a threat to peace and security. With a view to the evolving duties of the UN, its constituent instrument (in particular Art. 24 UN Charter with its reference to Art. 1 para. 3 UN Charter) has to be interpreted in a manner that streamlines emerging inconsistencies. Based on such a reassessment, the UN Charter prohibits UN organs from flouting human rights they require others to respect, especially those enshrined in

the two International Covenants and in the Universal Declaration of Human Rights. It is a matter of consequence that, by the same token, the UN may restrict human rights on the basis and within the limits of limitation clauses.

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Art. 103 UN Charter makes also Security Council resolutions under Chapter VII prevail over other international obligations, Question ofInterpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. US), Order of 14 April 1992, ICJ Reports 1992, 114,126, para. 42. 102 R. Bernhardt, Art. 103, in: Simma et al. (note 47), vol. 11, 1298, MN 21; P.-M. Dupuy, The Constitutional Dimension of the Charter of the United Nations Revisited, Max Planck UNYB 1 (1997), 1, 14; for a different approach see G. F. Watson, Constitutionalism, Judicial Review and the World Court, Harvard International Law Journal 34 (1993), 1,25. 103 Cf Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, 3, para. 61. 104 Stahn (note 75), 466. 101

Whereas the human rights obligations of the UN can be anchored in the UN Charter by means of a "constitutional" interpretation of its provision, this approach must fail with regard to international humanitarian law. For whatever reason, the UN Charter is silent on that front. 105 What remains is the external obligation of the UN to observe customary humanitarian law. After some hesitation, 106 the UN Secretary-General recognized in 1999 the application of "fundamental.principles .and rules of humanitarian law" in enforcement actions or peace-keepmg operatIOns when the use of force is permitted in self-defense. 107 Notably, however, no word 108 can be found on the application of the law of occupation. This set of rules is of special interest when the UN administers governmental duties within a failed st~te. Traditionally, the law of belligerent occupation governs the acts of an occupymg power that is in temporary control of foreign territory dur~ng or after a~ armed conflict. 109 The UN's task in failed states - performed in the mterest of the mternational community - is hardly reconcilable with this definition. That may be one reason why the UN has never adopted a positive attitude in this regard. When th~ UN considered in 1957 administering the Gaza Strip after the withdrawal of Israeh forces, the question whether the UN should obtain the status of an o.c~upy~ng power was denied quite harshly: "The occupier has the duty [ ... J ~f ~dllll~lstenng the country according to existing laws and existing rules of adlllllllstratIOn. [ ... ] [T]he foregoi,ng is enough to indicate what the situation would be if the [UNEF] Force were an occupying army - which it is not, and which it has been stated explicitly it is not.,,110 Irrespective of whether this argument is convincing, the UN But see Stahn's interpretation of the preamble of the UN Charter, ibid., 469. On the position of the ICRC see U. Palwanka, Applicability of international humanitarian law to United Nations peace-keeping forces, International Review of the Red Cross 105

106

33 (1993),227. . . 107 Secretary-General's Bulletin of 6 August 1999, Observation by Umted NatIOns forces of international humanitarian law, UN Doc. ST/SGB/I999113. 108 M. Zwanenburg, The Secretary-General' s Bulletin on Observance by U~te~ ~ a:ions Forces of International Humanitarian Law: A PYlThic Victory, Revue de drOIt Ill1btaIre et de droit de la guerre 39 (2000), 13, 23. 109 Fox (note 70), 222; for the UN's approach prior to the 1999 Bull.eti~ see B. D. Tittemore, Belligerents in Blue Helmets: Applying International Humamtanan Law to United Nations Peace Operations, Stanford Journal of International Law 33 (1997),61,87; K. Schmalenbach, Haftung Internationaler Organisationen, 2004, 348. 110 Brief on UNEF Function in the Gaza Strip, 8 August 1957, UN Archives N.Y. File No. S-0530-0101. Box DAG-13/3.11.0.0-202, cf Schmalenbach (note 109), 357.

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always had problems classifying its forces as a "hostile army" in terms of humanitarian law. The aim of the UN's presence in a failed state and the organization's attitude is, however, no appropriate starting point for the determination of the legal regime governing UN rebuilding missions in failed states. The fact that the UN exercises governmental duties within a foreign territory without the consent of the affected state is arguably sufficient to apply customary occupation law. III Due to the UN's special purposes one may call the legal situation a "humanitarian occupation" as proposed by Gregory Fox.ll2 The label rightly indicates that the law of belligerent occupation may be subject to fundamental modifications. As elaborated above, the Security Council may overrule customary law obligations if this is deemed necessary to achieve the aim pursued by the enforcement measure, 113 provided they do not have ius cogens character such as, e.g., the rules of humanitarian 1l4 law protecting civilian life. In addition, the Security Council has to observe its Charter-based obligation to respect all human rights that are not superseded by humanitarian law (c! Art. 4 International Covenant on Civil and Political Rights). 115 Having said that, the Security Council is at liberty to reasonably deviate from Art. 43 of the Hague Regulations and Art. 64 Geneva Convention (GC) IV in order to introduce wide-ranging governmental and administrative reforms aimed at helping the failed state back on its feet.

m. Law Governing Rebuilding Efforts of Third States Most writers agree that in many regards the early US occupation practice in Iraq fell short of humanitarian law standardsY6 Whether this is also true for the Coalition's state-building measures depends largely on the interpretation of Secu-

111 Cj M. Kelly, Restoring and Maintaining Order in Complex Peace Operations, 1999, 181; Stahn (note 75), 470; M. Sassoli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, European Journal of International Law 16 (2005), 661, 688; 1. Saura, Lawful Peacekeeping: Applicability of International Humanitarian Law of United Nations Peacekeeping Operations, Hastings Law Journal 58 (2007),479,506. International jurisprudence affirms that de facto control is the critical factor for the application of the law of occupation, see ICTY, Appeals Chamber, Tadic (note 65), para. 168. 112 Fox (note 70), 4. 113 Sassoli (note 111), 681, demands an explicit derogation of international humanitarian law.

114 Legal Consequences of the Construction ofa Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, para. 157. 115 Ibid., para. 106. 116

D. F. Scheffer, Beyond Occupation Law, AJIL 97 (2003), 842, 853-856.


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rity Council Resolution 1483 (2003).117 The Resolution, adopted under Chapter VII, acknowledged the status of the Coalition forces ("Authority") as occupiers and called upon them "to work towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future."118 Some authors interpret this passage as an authorization which goes beyond the powers assigned to occupying powers under Art. 43 of the Hague Regulations and Art. 64 GC IV. 119 The overall concept of the Resolution indeed suggests this approach, given that the operative part starts with an appeal to member states and concerned organizations "to assist the people of Iraq in their eff~rts to reform their institutions and rebuild their country.,,120 It seems to be a bit far-fetched that the Authority would have to administer external rebuilding activities by virtue of Chapter VII and, at the same time, must abstain from taking the lead by virtue of international humanitarian law. Irrespective of whether Resolution 1483 in fact furnished the occupying powers with special authority, it is inherent in the UN system that the Security Council has the power to do so. From the viewpoint of member states, Art. 103 UN Charter provides the necessary legal justification to deviate from Art. 43 of the Hague Regulations and Art. 64 GC IV for the purpose of fulfilling the UN approved state-building task. l2l It goes without saying that the authorization necessarily mirrors the legal limits of the Security Council's powers as pointed out above. 122 It is undisputed that the Coalition's military presence in Iraq was in fact a military occupation in terms of international humanitarian law. When the Security Council authorizes member states to perform security tasks in a failed state, the legal situation is less clear. Resolution 794 (1992), for example, authorized member states "to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia." Since the legal regime governing the forces' conduct remained unaddressed, the troop-contributing states disagreed about the body of law applicable to their military presence in Somalia. The Australian UNITAF applied the law of occupation and, consequently, restored SC Res. 1483 (2003),22 May 2003. SC Res. 1483 (2003), para. 4. 119 R. Wolfrum, Iraq - from Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference, Max Planck UNYB 9 (2005), 1, 16. 120 SC Res. 1483 (2003), para. 1. 121 WolfrU111 (note 119), 16; for a different approach see Sassoli (note 111), 689; A. Orakhelashivili, The Post-War Settlement in Iraq: The UN Security Council Resolution 1483 (2003), and General International Law, Journal of Conflict & Security Law 8 (2003), 307,309. 122 See supra C. IV. 117

118

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law and order pursuant to the requirements of Art. 43 of the Hague Regulations. 123 In contrast, the US contingent refused to officially acknowledge the application of international humanitarian law.124 Under the premise that, as a rule, the UN itself is obliged to respect humanitarian law when implementing enforcement measures within a failed state, the US approach is difficult to justify. In the case of Somalia, the Security Council did not authorize the troop-contributing states to undertake wide-ranging state-rebuilding exercise within the territory under their de facto control. Thus, the legal limits imposed by Art. 43 of the Hague Regulations and Art. 64 GC IV fully apply. Besides, both provisions are flexible enough to allow the troop-contributing states pragmatic first-aid solutions when dealing with collapsed governmental structures. 125 Due to the imperative needs in a failed state, these solutions may embrace the provisional reconstruction of local institutions.

E. Conclusion Whereas the total breakdown of state institutions is still exceptional, a great many states in whatever stage of weakness or fragility linger on the long road to state collapse. From the international law perspective, preventive measures of well-meaning third states do not take place in a legal vacuum. Depending on circumstances, the sovereign equality of states and the principle of non-intervention constitute the most important legal yardsticks to be considered when imposing preventive state-building measures upon the fragile state. External efforts to reconstruct state institutions and governmental powers after the final collapse have to observe first and foremost the relevant law of occupation and the people's right of internal political self-determination. Especially the latter is a fundamental cornerstone of UN actions under Chapter VII when preventing and rebuilding failed states. Admittedly, to judge every single state-building measure in the light of the rather vague principle of self-determination seems to be a bit academic, especially when a consolidated, self-sustained state is the ultimate goal of the external rebuilding effort. However, self-determination is no end in itself. A legal "birth defect" of the revived state at the expenses of the whole nation may be the seed of the next decline.

123 124 125

Kelly (note 111), 39. Stahn (note 75),472. ej Sassoli (note 111), 671.