failure of states as a continuum

by Gian Luca Burci

Chiara’s book is quite timely and topical and fills a puzzling gap in international legal studies.  The concept of failed state, mostly epitomized by Somalia after 1991, became fashionable in the United Nations in the 1990s as the Security Council discovered its muscles under Chapter VII of the Charter and broadened the notion of threat to the peace to encompass humanitarian crises, massive violation of human rights and humanitarian law, and breakdowns in national governance – all features of a situation of state failure.  Still, the theoretical and practical challenges and conundrums raised by the failure of state institutions at the international level may have discouraged legal scholars from approaching this issue in a systematic way.

One of the complexities raised by Chiara’s approach to state failure is her notion of a progressive process of inability of a state to perform its obligations, from which certain consequences should derive under international law at different points of this continuum.  Identifying state failure with an extreme example such as Somalia probably simplified the analysis but also narrowed the field of research since there is probably not other case quite like it.  In the case of Chiara’s analysis, is there a point in the line of progressive inability of governments to perform its functions and comply with its obligations that triggers certain consequences and may lead to collective measures under international law? If we take Chiara’s approach too literally, there are many states whose sovereignty is not seriously questioned which may be chronically unable to provide some of the political goods that Chiara identifies as an essential element of a “functioning sovereignty”.  Doesn’t this risk broadening too much the concept of failing states and make it less relevant for a serious analysis of the theoretical and practical consequences of state failures?  I wonder whether it would help the analysis to set the bar higher and narrow the very concept of state failure to more extreme cases of collapse of state institutions or of their basic functions.

Another initial consideration I would like to make concerns the causes of state failure identified by Chiara in chapter four of her book.  She focuses on political causes such as the aftershocks of the end of the cold war and of colonial regimes, or on pathological social phenomena such as extreme ethnic or religious imbalances.  However, an aspect of contemporary state failure that Chiara doesn’t seem to consider but that could become widespread in the next decades is the failure of states for natural causes.  Small island states such as Nauru, Tuvalu or the Maldives may soon become uninhabitable because of the rise in sea level or depletion of natural resources due to global warming, and their worsening conditions is making them already now progressively unable to comply with their domestic and international obligations.  Nauru, for example, is constantly on the verge of bankruptcy and is unable to provide basic services to its (admittedly small) population or to comply with its financial obligations at the international level.  At the same time, the failure of states such as those I just mentioned does not pose a credible threat to international security or other fundamental interests of the international community.  Would Chiara include this category of failed states into her analysis, and what legal consequences would she draw?

http://opiniojuris.org/2010/09/22/failure-of-states-as-a-continuum/

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