The Concept of State Failure
State failure is an almost intractably thorny question for international law. Its intractability is both practical and conceptual. It is practical because state failure – defined by Giorgetti as ‘the prolonged implosion of governmental structures and the ensuring incapacity of the government to provide political goods to its internal and external constituencies’ – poses tremendous political, social and humanitarian challenges to the local population, to neighbouring states and to the international community as a whole. There is, and there can be, no universally effective blueprint for saving states from failure and for returning them to a basic functioning (let alone to “success”, whatever that might mean).
The conceptual intractability of state failure is in a nutshell this: as James Crawford explains at the beginning of his seminal book The Creation of States in International Law (2006, 2nd ed.), statehood is both norm and fact; a state ‘is not a fact in the sense that a chair is a fact … [but in the sense of] a legal status attaching to a certain state of affairs by virtue of certain rules or practices’ (at p. 5). A state is, in other words, a fact in a normative and social sense. But if one of the key factual pillars of statehood, that is an effective government, collapses in its entirety for ten, or even twenty or more years, does it really make much sense to insist that the state still is? Can this fact-based concept survive the demise of one of its founding facts?
In terms of positive law, the answer is that statehood does survive a complete and lasting loss of effectiveness, for the modalities of state extinction do not include extinction by failure of government. The continued existence of a state in these circumstances might be described as a fiction. But, as every jurist knows, fictions are often there for a reason. The reason in this case is that to declare a state extinct because of the total failure of government might render the political problem behind state failure only more intractable.
Giorgetti does not use the concept of state failure to make a novel –and frankly improbable – argument about state extinction. Her concern is to find a way of dealing with the fact of state failure that is both principled and practical. As shown by the case of Somalia, to which she devotes a significant part of the book, the practice of international organisations and states shows that responses to state failure, while idiosyncratic, have not normally been characterised by complete inaction. Inaction is not in fact an option because the nature of modern-day society requires that someone somehow be in charge of some basic functions. It is therefore no surprise that certain functions of failed states like Somalia, for example in the area of aviation and shipping, have been taken over by international organisations. Such take-overs of functions have not always happened under formal mandates by the UN, and they have seldom – if ever – been accompanied by a comprehensive principled assessment.
Giorgetti’s work aims to provide the basis for such a principled framework. One of her premises is that, while the state may have failed, its sovereignty still stands. In her view the interventions of the international community cannot proceed on the basis that the principle of sovereignty does not need to be observed in these cases. Some may criticise her for going at such lengths to reconcile international interventions in failed states with sovereignty, but I tend to agree with her approach. ‘Sovereignty shorn of the last vestige of power’ [Lighthouses in Crete and Samos (France v. Greece), (1937) PCIJ Series A/B, No. 71 at 127, diss. op. of Judge Hudson] may strike some as yet another idea that stretches the relationship between norm and fact to the point of incredulity; and they are probably right. But the function played by the principle of sovereignty in these circumstances is to protect states, territories and ultimately people from being taken over by other states.