An internal challenge: partnerships in fixing failed states.

by Thurer, Daniel

Harvard International Review • Wntr, 2008 • picking up the pieces: FAILED STATES

Thus, the Security Council may intervene to restore internal order as soon as the threshold of a threat to peace under Article 39 is reached. The consent of the state is not needed, especially since consent could hardly be granted in the absence of any effective government. However, if one considers the consent of the state indispensable, intervention can be justified by inferring it from the higher interest of the people through the civil law analogy of negotiorum gestio, or criminal law provisions concerning assistance in emergencies.

In recent practice, the Security Council has interpreted its mandate broadly. In various cases--most notably Cambodia--the Security Council has taken peace-building action in the form of far-reaching civil measures that range from the demobilization of armed forces to the reform of governmental and constitutional structures. Like Somalia, Cambodia was an instance in which the charge of the international community to take over complex administrative and political tasks in failed states was clearly evident.

Finally, it should to be noted that the Security Council has regularly addressed all relevant parties in the conflict, though without specifically reminding the non-state players of their duty. It would appear that at least in connection with the situation of failed states, a door has opened allowing the measures envisaged in Chapter VI of the Charter for inter-state relations to be used in the internal affairs of states as well.

Overall, the Security Council has not only permitted the intervening states to apply various enforcement measures under a broad mandate, but has also created a new normative, institutional, and operative regime in the context of peacekeeping operations. This strategy transcends the traditional method and may be used, at least temporarily, to substitute for the collapsed system of governance. Thus, following its own understanding and supported by the approval of the community of states, the Security Council has fundamentally transformed the role it was originally intended to play. Having started out as a sort of policeman in the service of international security, the Council now has a subsidiary function of a supranational "government and administration" body.

However, the endeavors of the Council have met with varying success in the field. While Bosnia and Haiti have been pacified, for the time being, the Congo has yet to achieve a modicum of stability, and the situations in Somalia and Sudan remain as hopeless as ever. In these two states, institutions remain weak, ineffective, or even nonexistent. This not only hampers relations with the outside world, but also affects the living situation of failed state inhabitants.

Prospects for Internal Development

Since the causes of the crisis are usually endogenous, it follows that internal forces should be harnessed for the recovery process. The cases of Japan and Germany after World War II cannot be used as precedents for modern practice because the resources and energies available then cannot be compared to the resources available for current reconstruction.

Two models could be used for state reconstruction. The first of these is the formula adopted by England after the Civil War in the sixteenth century and by many continental countries after the Thirty Years War: the establishment of the Leviathan, as conceived by Thomas Hobbes, as an absolute authority to overcome and tame the internal powers that be.

Today, establishing such authority would not be an end in itself, but rather a step to the later establishment of a liberal power-sharing constitutional state. In the forefront of any such enterprise is the need to secure the state monopoly of power, with the assignment of police and judiciary resources as the top priority. The history of the development of criminal law in Germany as a means to overcome the old feudal system, offers interesting parallels in this connection.

The apparatus established by newly stabilized states for the exercise of authority must be gradually extended in order to provide an effective system of public services. To promote the welfare of the people, this system must also permit the resumption of relations formerly maintained with international development and social work organizations.

The second approach could be an attempt by the people to rebuild the state progressively from the bottom up through self-established structures within the framework of civil society. In this way, the consciousness of the public and the will of the state can come together and crystallize around various points such as the domains of transport, health, education, agriculture, and local government.

Popular energies can thus be mobilized in favor of reconstruction. Partial arrangements can give an impetus to the creation of a comprehensive public sector and representative institutions, which alone would permit a government to acquire the necessary legitimacy in the long term on a federal or decentralized basis. This approach was successful in Switzerland, where smaller units grew into a federal state during the nineteenth century. It also applies to present-day Bosnia, where the international community has focused on building common institutions rather than trying to establish a state forthright. The World Bank also supports this approach in developing countries throughout Africa and Asia.

Clearly, this is a tortuous process with an unknown outcome. Reestablishment of the state will require favorable conditions both internally and externally. Most importantly, such a development needs to rely on the creation of shared aspirations of the state's future citizens.

However, of the two forms of nation-building set out above, neither could be realized in pure form. The idea of a spontaneous upsurge and coordination of social forces is a rather romantic notion: such cooperation flourishes not so much in the ruins of a failed state as in situations where free scope is available within an organized whole.

On the other hand, for the sake of human rights and self-determination, a Leviathan is a highly uninviting prospect, even as a stop-gap measure. Two elements are needed: first, a combination of solutions that permit the creation of gradually civilizing forms of human coexistence, and second, the will to achieve political cohesion. Both are crucial in bringing about a modern state that is driven by principle and based on tolerance with the ability to compromise. At the same time, it is necessary to ensure the promotion of a political culture and a sense of collective identity. As a rule, the external forces of public and private life can provide nothing more than a little help in the progression toward self-help.

DANIEL THURER is a professor of international law, European law, public law, and comparative law at the University of Zurich.