By Vitit Muntarbhorn*

The nomenclature _ fragile States or failed States _ is itself interesting and begs many questions. Is it the State itself which is fragile _ or the government, community and/or individual? Is it a matter of the failed State (sounding somewhat late as an alarm bell), or a failing State (where there may be more leeway to prevent that State from failing)? Or is it a state of failure or a state of failing which may be due to national actors, international actors or both bedfellows? One policy paper has defined the fragile State as implying a situation where the government of a State cannot or will not deliver core functions to the majority of its people, including the poor.

In a manner, it is on the brink of collapse, of increasing tensions and/or of precipitating towards warfare. Not only are there challenges for peacekeeping but also for prevention of conflicts, dispute resolution, peace-making and peace-building to prevent a situation from relapsing into another critical hotspot. While several countries in Africa, such as Somalia, appear prominently in such a category, the issue cuts across all continents and invites more concerted action to prevent the disintegration of peace and security within and between States.

There are emerging challenges in relation to United Nations (UN) reform.

First, there is now a newly established Peace-building Commission. Its mandate to help build peace is obviously intertwined with potential or actual fragile States. It will be tested by how it is able to deliver at the national level. It is to be a supported by a Peace-Building Fund. While it is primarily an advisory body, it will have access to the UN Security Council and will be able to catalyse actions particularly at the national level.

Second, there is now a global democracy fund as a result of the 2005 World Summit and its Outcome Document which laid the groundwork for today's thrust for UN reform _ this may interplay with the conditions for nurturing democracy which can help to reduce tensions and the fractious relations which give rise to fragility.

Third, there is to be a UN Human Rights Council in place of the current UN Human Rights Commission _ the latter being critiqued for its credibility deficit, due partly to the presence of several of the world's human rights violators prominently wielding power in the Commission.

The Council will be a standing body meeting periodically throughout the year, rather than the six-week ad hoc style of the current Commission. This provides more room for addressing emergencies more quickly and in a more sustained manner. The Council will also undertake universal review of all countries, thus being able to identify risk situations more broadly. The latest negotiations concerning the proposed Council are in regard to how many seats and what form of geographic representation there should be. One of the remaining thorny issues is whether members should be voted in on the basis of a simple majority or a two-thirds majority of all the members of the UN.

Fourth, the UN High Commissioner for Human Rights has now a Plan of Action which will enable the Office to double its resources and increasingly decentralise to the field level. The latter will enable flash points to be monitored and actions to be triggered more readily than in the past.

Fifth, the current peace-keeping operations will be bolstered by the various modalities introduced by UN reform, and there is also a UN central emergency reserve fund which is to be reinforced to address emergencies and the call for humanitarian assistance.

Sixth, UN reform has also provided room for greater emphasis on the notion of the ''responsibility to protect'' which now appears explicitly in the Outcome Document of the World Summit mentioned. This implies that State sovereignty is not absolute _ the State is under a responsibility to address those conditions which may give rise to human rights violations, such as genocide, ethnic cleansing, war crimes and crimes against humanity.

While the responsibility to protect opens the door to military action by the UN through the Security Council, it is not confined to military action _ it may call for preventive actions of a non-military kind, such as emergency/humanitarian measures and recovery and reconstruction measures where a transgression or breakdown has taken place.

Indeed, the responsibility to protect has been identified by its initiators as implying: the obligation to prevent drastic situations such as genocide, ethnic cleansing, war crimes and crimes against humanity, the obligation to react and the obligation to rebuild societies as part of the recovery process. When coercive measures are required, there are various considerations which come into play, requiring a balanced response to these questions _ will the use of coercion be for a just cause; is it based on right intent; is it a matter of last resort; how proportional are the means; how reasonable are the prospects of improvements if the measures are adopted; and is there right authority to take such measures?

There remains a quandary over what to do where the UN Security Council dysfunctions. Is there room for unilateral action where multilateralism fails? Is the reality already one of ''fait accompli''? What if the ''fait accompli'' leads to further global instability?

From the angle of development aid, there is the ongoing issue of whether it should be provided with or without conditionality. Where that aid concerns humanitarian action, e.g. emergency aid for food shortage, there is general consensus that it can/should be provided, without the (pre-)conditions of human rights improvements and political liberalisation. However, this should not neglect the need for transparent monitoring of the aid so as to ensure that it reaches the target group.

There is also no substitute for sustainable development and people's participation in the development process at the national and local levels so as to generate the human security for which development aid cannot be a substitute.

The over-expenditure on the military in many countries should not be overlooked. The relationship between defence, diplomacy and development underlines the fact that even in the poorest countries, there is often inequitable allocation of resources _ the military budget would be better spent on human development. Frankly, no country is ever too poor to reduce its expenditure on arms purchases! Meanwhile, the developed countries which sell arms to these countries should also adjust their own inequitable policies which fuel the demand and supply of militarisation and destabilisation.

There is also a world of realities where, for policy reasons, some countries are donor darlings while others are donor orphans. Yet, humbly, even the concept of donor-donee is condescending and objectionable. It is better to promote an equitable partnership rather than a donor-donee syndrome.

Policy-makers and practitioners should thus foster the following orientations in global/national actions:

* Address the emergence of fragile States by means of effective early warning mechanisms, effective response, recovery measures and adequate resources;

* Use the totality of the UN system, its reform process and the various funds available, to protect and assist those who are affected by the state of fragility, including women, children, refugees, displaced persons, minorities, indigenous peoples and other groups;

* Activate the UN Security Council, complemented by other UN organs, to ensure the responsibility of all concerned parties to protect people from violations;

* Support the nascent Human Rights Council to provide sustained coverage of situations which may give rise to fragile States;

* Build national and local systems, mechanisms and processes to protect human rights, with broad people's participation, complemented by multilateral and regional systems especially where the national setting is unable or unwilling to prevent violations and to provide redress.

About the Author: Vitit Muntarbhorn is a Professor at the Faculty of Law, Chulalongkorn University, Bangkok. He has helped the UN in a variety of capacities, including as expert, consultant and Special Rapporteur