The Changing Understanding of State Sovereignty: Sovereignty, Failing States and International Organizations

Hans-Joachim Heintze

A Paper by Hans-Joachim Heintze, Associate Professor, Ruhr University Bochum, Editor of “International Humanitarian Law”, presented at Eighth Rhodes Forum Session, October 2010

In general political theory, states are defined as political and legal associations with effective sovereignty over a geographic area and population which comply with the following three qualifications: a defined territory; a permanent population; and government. They are bound by the provisions of international law in their relations with other states, and they regulate their internal affairs in accordance with the principles of self-government.

The Challenge of Failing States

There is currently no legal definition of what constitutes a failed state, but various attempts have been made to describe it. Such entities lack “functioning statehood”. Their internal governance structures are collapsing or have never been fully established. The state’s monopoly on the use of force – a fundamental achievement of humankind – no longer exists, or never existed at all. A “failed state” lacks government institutions with the capacity not only to takebut also to enforce decisions. The vacuum created by the absence of effective governance is filled by chaos and anarchy, interspersed with despotic excesses resulting from intermittent attempts to restore order. Notionally, however, the failed state continues to exist, for it retains its legitimacy in the eyes of the international community despite its inability to govern at home.

This legitimacy is guaranteed by the international community, not least because – especially in light of the large number of “quasi-states” – the regulatory concept of a community of sovereign states would otherwise be called into question. The countries frequently mentioned in this context, besides Haiti, are Somalia and Afghanistan. These are states whose existence in law will continue until their peoples, invoking the right of self-determination, establish a new state. With a view to maintaining international stability, the international community has an interest in functioning statehood and supports it in a variety of ways.

In the literature, such state-building is defined as a catalogue of measures which aim to stabilise a system of government, without necessarily being based on Western ideas of democracy. Nation-building, on the other hand, is intended to create a consciousness – in the sense of a national identity – which supports the consolidation of a state and also includes democracy-building and economic development. However, creating a properly functioning state is a complex task, even with massive political, military and economic support from the international community, as the example of Afghanistan vividly demonstrates.

During the Cold War, the superpowers were unable to resist the temptation to exploit the political conflicts in Afghanistan for their global power games. The Soviet Union committed massive military resources in a ten-year effort to shore up what it saw as an ideologically acceptable regime in Afghanistan, while the US supported the opposing forces which later evolved into the Taliban. These forces, in turn, emerged as the victors in the civil war which followed the Soviet withdrawal and turned against the US and its allies. This history of intervention is part and parcel, as well as an expression, of state failure in Afghanistan.

The threat that Afghanistan, as a failed state, poses to its own people, its neighbourhood and indeed to global stability is now obvious. In Somalia, too, the failure of the state has become an international threat, as is evident, not least, from the problem of piracy in the Gulf of Aden and far beyond. Yet again, it is becoming apparent that failed states can pose a threat to regional and even to international peace and security. As the examples show, the failure of a state can have various consequences under international law; international or national responses must comply with the principle of proportionality. In Afghanistan, for example, the Taliban regime was overthrown in a military intervention by the United States, prompted by the Taliban’s involvement in international terrorism, and was replaced by a new government, whereas the international community has responded to state failure in Somalia by deploying naval units to safeguard the freedom of movement and security of shipping from pirate attacks. However, this is merely a response to the international manifestations of state failure in Somalia. Since the unsuccessful intervention in Somalia in 1992/1993, the international community has shown little desire to help re-establish a functioning state in Somalia or commit any resources for this purpose.

In Haiti, on the other hand, the failure of the state was manifested at other levels, in the form of mismanagement, corruption, violence and a lack of respect for human dignity. Key functions of the state were not performed. The first priority here, then, was to protect the population from the effects of their country’s fragile statehood, although the state’s inability or its leaders’ unwillingness to provide security for their own population had international implications as well. The exodus of refugees and soaring levels of crime began to pose a threat to peace in the region, prompting the international community to intervene on several occasions.

The UN’s attempt at nation-building – the Case of Haiti

The large-scale exodus of refugees triggered by the massive human rights violations after the military coup in 1991 prompted the UN Security Council to adopt Resolution 940 (1994) authorising humanitarian intervention in Haiti, led by the US. The stated aims were to reinstate the democratically elected President, Jean-Bertrand Aristide, and to end the human rights violations. At first glance, it might seem that the Security Council was intent on enforcing the Haitian people’s right to a democratic form of government. However, such an impression is misleading.

Failed states are a highly unsuitable field for experimenting with Western-style democratisation. In failed states, the main priority is to establish institutions which enable the populace to live in conditions compatible with human dignity, with the problems of democratic state-building being addressed only as the next step. In Haiti, it became apparent that in 1994, the expectations of what Aristide’s democratically elected government could or would achieve were too high. The international community and particularly the US were relying on rapid democratisation taking place in a country which, in practice, was still characterised by colonial structures. Due to mismanagement by Aristide’s government, valuable time that could have been spent on building institutions of governance was wasted.

Numerous UN missions – starting in 1996 with Resolution 1063 and including efforts to safeguard Haiti’s elections and the establishment of a United Nations Civilian Police Mission in Haiti (MIPONUH) under Resolution 1141 (1997), later extended by Resolution 1277 (1999) – were also unable to provide any real guarantee that the Haitian government would perform the state’s functions effectively. Finally, following the outbreak of violence in 2004, Resolution 1542 authorised the establishment of the United Nations Stabilization Mission in Haiti (MINUSTAH) under Chapter VII of the UN Charter. The mission has been extended on a year-by-year basis ever since.

Under MINUSTAH’s mandate, the UN’s objective, with this mission, is to pursue an ambitious exercise in nationbuilding.

Hence in the preamble to Resolution 1892 (2009), the Security Council underlines the contribution to political stability and consolidation of democracy in Haiti. The list of tasks to be performed by this UN mission reads like a nation-building textbook, for it makes reference to promoting democratic dialogue between key stakeholders in the country, achieving significant progress on the rule of law, public safety and public order and institutional reform, and development. Other objectives include security sector reform, the establishment of a judicial reform programme to strengthen the administration of justice, and measures to tackle crime, human trafficking and the threats along Haiti’s land and sea borders. To monitor implementation of this broad mandate, the Security Council appointed former US President Bill Clinton as Special Envoy for Haiti.

To what extent these objectives have been fulfilled is a matter for debate. The fact that after the earthquake, the UN Secretary-General, speaking on 29 March 2010, said that renewal, not restoration of the status quo ante, should be the goal for Haiti, is telling. MINUSTAH has faced a similar problem to all the UN’s missions: the expectations of what it could achieve were too ambitious, and the available resources were inadequate. Nonetheless, the list of objectives certainly points in the right direction to overcome the collapse of governance in Haiti and restore a functioning state.

The rudimentary nation-building process was savagely interrupted by the earthquake. This disaster befell a state which was already barely functioning. In particular, it had never been in a position to fulfil its obligation to guarantee the protection and security of its citizens or enforce the rule of law. In consequence, the impacts of the natural disaster were bound to be more devastating here than in countries with a properly functioning system of governance. Sadly, nature itself supplied evidence to support this hypothesis in March 2010, when another major earthquake occurred on the same continent, this time in Chile. Chile’s functioning system of governance and institutions meant that the relief effort could be organised swiftly, limiting the extent of the human suffering. By contrast, the people of Haiti were helplessly exposed to the appalling aftermath of the earthquake. The international dimension of this natural event as a threat to peace also cannot be ignored. Inevitably, many Haitians are attempting to leave the country.

The Duties of the International Community

The term “humanitarian” is in vogue in modern international law. Undoubtedly, this is associated with the emergence of human rights as a new branch of international law over the past 60 years. In reality, these rights impose drastic conditionality on state sovereignty. Respecting human rights is now one of the fundamental obligations of every state, and includes the duty to protect the rights of all persons under its jurisdiction. In light of this obligation, which must be fulfilled unconditionally, the question which arises is what happens if a state is unwilling or unable to comply with this obligation. In failed states, the latter, at least, is often the case. As recent state practice shows, in such cases the international community may consider that it has no option but to intervene using all necessary means – including military means – in accordance with the provisions of the UN Charter, even though Article 2, paragraph 7 and Article 2, paragraph 4 of the UN Charter prohibit intervention in matters which are essentially within the domestic jurisdiction of any state, as well as the unilateral use of force in international relations.

Why can, or must, the international community intervene for humanitarian reasons?

A key feature of modern international law is that its enforcement is centred on a system of collective security within the United Nations framework. In this system, a legal relationship is established between the individual members, i.e. all the states currently in existence. The members pledge that they will uphold the norms enshrined in the UN Charter. In the event of these norms being violated, law-abiding countries can seek to influence the behaviour of the law-breaker via the organs of the system of collective security, in accordance with the principle of proportionality. The most stringent sanctions are envisaged in cases when international peace is violated or threatened; in such cases, the relevant body representing the international community, namely the UN Security Council, can compel – by military or non-military means – the state concerned to revert to law-abiding behaviour.

In “classic” international law, only inter-state conflicts were regarded as a threat to peace, with aggression by one state against another being viewed as a breach of the peace. This changed after the end of the Cold War: from then on, the full potential of the UN Charter could be used to protect human rights. The implications of this development were revealed with particular clarity in the case of Somalia, where the dictator Mohamed Siad Barre had been overthrown in 1991, leading to a complete collapse of law and order. The capital Mogadishu was destroyed in the ensuing inter-clan fighting, which lasted for some time. The war and drought caused famine, but anarchy and violence prevented international aid from getting through. When the UN Secretary-General was informed about the conditions in the country, he put the issue on the Security Council agenda. A number of states refused to address the issue of Somalia on the grounds that the UN was prohibited from intervening in member states’ internal affairs.

This objection lost its impact, however, when Somalia’s own chargé d’affaires at the UN ultimately requested the Security Council to turn its attention to the human tragedy unfolding in his country. As this sequence of events shows, the majority of countries continue to respect others’ sovereignty, including that of failed states. Finally, with the adoption of Resolution 794 on 3 December 1992, the Security Council authorised member states to deploy a military intervention force to enable the delivery of humanitarian aid to the people of Somalia despite obstruction by local clans and warlords.

This was an historic decision: for the first time, a government’s inability to fulfil its responsibility to protect the people under its jurisdiction was regarded as a threat to regional peace. In 1992, the Security Council authorised the US to assume command of the military operation, known as “Restore Hope”. Differences of opinion arose over its mandate, however, and although the mission was successful in that the Somali people were supplied with aid, it was unsuccessful to the extent that it failed to rebuild a functioning state in Somalia. This failure was due to the fact that the military was not given a clear mandate on how to deal with the warlords and clan chiefs. Furthermore, no effort had been made to analyse the causes of the conflict or Somalia’s social structures; instead, one of the clan leaders, quite arbitrarily, was held responsible for the conflict.

The deployment of the military had tragic consequences for the further provision of humanitarian aid once the acute crisis had abated. Due to the military’s role in enforcing the delivery of aid, the traditional and well-functioning contacts between regional warlords/clan chiefs and the humanitarian organisations which had been operating in the country for years were interrupted. After the abrupt withdrawal of the troops – which was viewed by the warring factions as a victory and by the US as a defeat – it proved impossible to re-establish these relationships, which were based on mutual recognition, to their former extent. This had a detrimental effect on the provision of humanitarian aid.

The sovereignty of failed states in crisis situations

A key issue to be addressed is to what extent the sovereignty of a failed state poses an obstacle to international engagement. In the case of Haiti, for example, President René Garcia Préval expressed frustration that the Haitian government had been bypassed in the coordination of the relief effort, while Ecuador’s President Rafael Correa lambasted what he saw as “imperialism among the donors”.

A particular criticism was that most of the money donated goes back to the donor countries. This criticism raises further questions: to what extent can and should the government of a failed state be involved in humanitarian relief operations? And where should the goods distributed as part of the relief effort come from?

Legally, even failed states are sovereign states. Thus the UN Security Council, in the preamble to its Resolution 1892 (2009) states explicitly that it acts: “Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and unity of Haiti, welcoming the progress achieved so far in critical areas for the consolidation of Haiti’s stability, reaffirming its support to the Government of Haiti and welcoming its contribution to political stability and consolidation of democracy in Haiti”.

This implies that the aid must be coordinated, as a matter of principle, with the (notional) government of the failed state concerned. However, this responsibility is likely to overwhelm the government, since it does not exert effective control over the entire national territory. Furthermore, the country’s rudimentary government institutions are invariably discredited in the eyes of the populace due to mismanagement, corruption and criminal associations.

In Haiti, a further factor undermining the state’s capacities to deal with the aftermath of the earthquake was that large numbers of Haiti’s local police were victims of the disaster. One of the most serious problems affecting the relief effort, besides the collapse of Haiti’s infrastructure, therefore proved to be the total absence of public security and law and order. As a consequence, it was impossible to guarantee the systematic provision of aid to those in need. To that extent, the immediate acceptance of the United States’ offer to deploy 11,000 troops in Haiti is understandable. A further 4,000 troops followed at the end of January. The troops’ mandate was clearly defined: to maintain order and support the distribution of emergency supplies. The troops were present on the streets and distributed food, although this was not coordinated with the humanitarian organisations and fell short of professional standards, in that aid was not distributed to those in need in a planned manner but was handed out indiscriminately.

This in turn caused such scenes of chaos that the humanitarian organisations were forced to temporarily suspend their systematic, needs-based distribution of food aid, which was based on ID cards as proof of entitlement. The question, then, is why the armed forces’ role was not restricted to maintaining order but also included involvement in the distribution of humanitarian aid. This can only be explained in terms of the general chaos prevailing in Haiti and the United States’ attempt – for domestic policy reasons – to demonstrate that it was actively assisting its neighbour. A further factor may have been the desire to increase the local population’s acceptance of the presence of foreign troops by having them play a role in the relief operation, thus reducing the risk of food riots and clashes between aid workers and people desperate for help. The criticism voiced by Venezuela and Bolivia, which described the deployment of US troops as an occupation, is unfounded: as the operation was approved by the Haitian government, this view lacks any legal basis.

Haiti’s sovereignty was respected, despite the deployment of foreign troops in the country.

Aid and overcoming state failure

The earthquake reversed efforts to establish functioning state structures in Haiti and created chaotic conditions which are likely to persist for some time. Due to the lack of a functioning state, many people have no option but to remain in the devastated downtown area of the capital Port-au-Prince. They must personally defend their legal claims to the plots of land where their homes once stood.

As the land registers no longer exist and Haiti has no administration, they simply wait around in the ruins of their homes, in appalling and unhygienic conditions. With the hurricane season just around the corner, the outbreak of epidemics is almost inevitable. Nonetheless, people are unwilling to move to the refugee camps being set up outside the city, for by doing so, they are likely to lose what is left of their property. It would also put them at even greater risk of falling victim to crime, which is rife. In the capital, due to a lack of a police presence, they have formed private neighbourhood militias to provide at least a modicum of security.

The conditions in Haiti show that the humanitarian operation, on its own, cannot assist the victims of the disaster in accordance with its own principles. Under these conditions, it is not always those in greatest need who get priority access to aid, as there is no system of local governance to provide a guiding hand. The international relief effort began immediately after the disaster, and its coordination swiftly passed to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA).

Although the UN’s own team in Haiti was very badly affected by the earthquake, the tasks of assessing needs and coordinating the relief effort very soon began. Difficulties inevitably arose, however, because the government of Haiti was unable to play a joint role with the UN in coordinating the relief effort.

The relief operation was intended to supply the victims of the earthquake with basic essentials as quickly as possible. In this particular case, key priorities were search and rescue, the provision of accommodation, security, food and clean water. Mainly due to the lack of a police presence, these tasks could only be implemented to a partial extent. Normally, the reconstruction phase would begin around 10 weeks after a disaster. After a major disaster on the scale of the Haiti earthquake, the reconstruction process will last for many years and will require close cooperation with the country’s government. The participation of local politicians and functionaries at every stage of the planning and decision-making process will also support the establishment of a functioning state, especially as components and objectives of the subsequent development process must be integrated into the reconstruction phase. As part of the process, capacity-building for local experts and institution-building are essential in order to reduce vulnerability to future disasters. The psychological effects of the disaster, too, can be overcome most effectively by involving local people in the reconstruction process. This concept, which combines emergency relief, reconstruction and development in a process known as the continuum, obviously makes sense. When it works, it can genuinely contribute to building better governance and a functioning state. To date, however, very little practical experience has been gained with this concept.

There is a Need of an International Administration of Failing States

Even before the earthquake, the Haitian government was unable to prevent state failure in Haiti. The deployment of MINUSTAH brought about some improvements but did not, in practice, establish a functioning state. The Security Council responded to the natural disaster by adopting Resolution 1908 (2010), which increased the number of troops deployed in Haiti to 8,940 and the police component to 3,711, compared with 6,940 and 2,211 respectively in 2009. It is probably obvious that this is an inadequate response to the chaotic conditions in Haiti.

To date, the UN has relied on traditional models of cooperation with the Haitian government and donor conferences. It is estimated that the country will need around 11.5 billion US dollars in aid for comprehensive reconstruction and development over the next 10 years. The donor conference in March 2010 secured pledges of around 9.9 billion US dollars, far surpassing expectations. The EU is the largest donor to Haiti and intends to contribute 1.6 billion US dollars. Motivated by a desire to exert political influence, countries such as Venezuela have pledged substantial sums as well.

However, pledges are all very well, but the actual provision of funds is quite another matter. Furthermore, the willingness to donate invariably wanes once the disaster and its tragic individual fates have vanished from the headlines. This happens in all natural disasters once the initial shock has abated and in Haiti’s case, is reinforced by the public’s mistrust of the government agencies supposedly responsible for reconstruction. In that sense, even the financing of emergency relief could pose problems in Haiti. A further concern is that some potential donors will argue that the Haitian government is not a partner who can be trusted to make appropriate use of donated funds.

The international community’s emergency relief operation in Haiti is gradually moving into the reconstruction phase, which will require close cooperation with the government and other local agencies. In view of the massive extent of human suffering, there is not much time available to test whether this cooperation works. Unless it can be established on a secure footing very swiftly, other forms of international assistance must be considered. There are various possible options. At present, and for the foreseeable future, Haiti faces a crisis comparable to the situation in East Timor in 1999. The UN had established a mission in East Timor in June 1999 whose mandate was to organise and monitor a referendum on the future of this former Portuguese colony, which was occupied by Indonesia. When the referendum produced a clear majority in favour of independence, pro-Indonesian militias embarked on a campaign of violence and terror, murdering and displacing the people of East Timor. The East Timorese elite in particular fell victim to the massacres.

There was a complete collapse of law and order, and the infrastructure was destroyed. The UN mission was also attacked, forcing staff to flee. The Indonesian armed forces, which the government was now powerless to control, not only tolerated the situation, which was in effect a civil war; it was apparent that they were implicated from the start.

Finally, after lengthy prevarication, the Indonesian government agreed to the deployment of an international peacekeeping force for East Timor in September 1999. One persistent criticism levelled at the UN was that this deployment came far too late, as the violence perpetrated by the Indonesian militias had been predicted well in advance. After Indonesia renounced all its claims to East Timor in October 1999, its officials were withdrawn, leaving the country without any civil administration. The UN Security Council then adopted Resolution 1272 (1999), establishing a United Nations Transitional Administration in East Timor (UNTAET). It was endowed with overall responsibility for the administration of East Timor and was empowered to exercise all legislative and executive authority.

It was mandated to provide security and maintain law and order, to establish an effective administration, to assist in the development of civil and social services, and to ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance. The mission was headed by a Special Representative, who was empowered to amend and repeal laws. The original 16-month mandate was extended twice. Thus for the first time, a new state was born under the UN’s administration.

Without the UN to act as “midwife”, this state-building process would have been impossible. The question is whether this example could provide some useful ideas to help consolidate the situation in Haiti as well.