04 May Failed States Index: Can We Quantify a Legal Concept?
I’m late to this notice but Foreign Policy Magazine has put out a “Failed States Index” ranking nations on 12 political and economic measures of instability. Not surprisingly, Sudan tops the list. Iraq is fourth and Afghanistan is tenth.
The factors FP used include such obvious characteristics as demographic pressure, level of human flight, etc. This is a poli-sci type approach (even using software to crunch the data) and very interesting.
As I understand it, the term “Failed States” is also an international legal concept. As this ICRC article suggests, under international law, a “failed state” “is one which, though retaining legal capacity, has for all practical purposes lost the ability to exercise it. A key element in this respect is the fact that there is no body which can commit the State in an effective and legally binding way, for example, by concluding an agreement.” But many of the factors leading to the assessment of a failed state under international law may be similar to the factors used by FP.
In any event, I wonder if international law could (or should) develop a rigorous factual test for measuring a failed state and then send those factors into a software program for calculation. This may sound odd, but is it any more odd than some judge or policymaker (or Noam Chomsky) somewhere simply declaring that some country is a failed state? It couldn’t be much worse than our current way of doing things.
P.S. I’m actually heading to No. 31 on the Failed States index for the next week or so, which is actually right on the border of No. 1. I doubt I’ll have internet access though, so I’ll be out of touch.
This is very interesting but dangerous. The notion of failed states does not have any legal significance as such; Thurer is simply trying to tease out the consequences of failure for a state’s ability to operate in the international legal environment. But I don’t believe a state’s status in IOs, treaty relations or its state responsibility changes because of failure. On this score see Will Taft’s wonderfully stinging rebuke to John Yoo’s memo claiming that because Afghanistan was a failed state it was no longer party to the Geneva Conventions.
Chomsky clearly wants us to realize that our penchant for, if not habit of, seeing the world in black and white terms, focusing on the shortcomings of others, acting in the international arena with reckless disregard for international law, assuming the mantle of Manifest Destiny, imposing norms on others we ourselves refuse to follow, steering globalization along the lines of economic neoliberalism (one size fits all), and so forth and so on, does little if nothing to alleviate the pain and suffering that flourishes in States on the ‘Failed States Index.’ It further serves to encourage refusal or undue circumscription of our sphere of international obligations and responsibilities vis-a-vis other states in the global system. In today’s world, the spread of democratic institutions and practices depends in no small measure on setting an example, on non-coercive provision of the facilitating variables conducive to planting the seeds of democratic practices and the entrenchment of fundamental liberties and human rights. What is more, an index such as this by design and default ignores or trivializes positive historical and cultural contributions the peoples who live in these states have often made to ‘global civilization,’ tending to stigmatize and castigate them in an essentialist… Read more »
I was writing my comments while Professor Fox posted his so I was not able to thank him above for honing in on the problematic legal dimensions of this index (something he’s far more qualified to do than I am).
‘I wonder if international law could (or should) develop a rigorous factual test for measuring a failed state and then send those factors into a software program for calculation.’ Comment: A few things one might want to keep in mind when entertaining such an ambition. First, as Nicholas Rescher reminds us in Objectivity: The Obligations of Impersonal Reason (1997), in contemporary Western culture there is a ‘fetish for measurement,’ a ‘penchant for quantities,’ and this ‘fetish’ and ‘penchant’ are particularly problematic in the social sciences, ever anxious about their academic standing as true sciences, the latter believed exemplified by the ‘rigor’ of a mathematical kind found, it is thought, in physics. Deirdre (formerly Donald) McCloskey has cleverly and courageously written about how this rhetorical infatuation with numbers-crunching has been the bane of an irreal, overly ‘theoretical’ neo-classical economics (she is not dismissive of mathematics and statistics as such, nor the use of same in economics, but rather the form their particular rhetorical employment takes in her discipline: for example, that the only or best economic argument is an econometric one, and that reliance on this rhetoric can obcure the need for, say, better understanding of historical and institutional questions, the… Read more »
I might have cited Anne-Marie Slaughter’s work on transgovernmental networks as well: as she notes, a ‘major advantage of government networks concerns the ways in which they can be used to strengthen individual State institutions without labeling the State as a whole as “weak,” “failed,” “illiberal,” or anything else.’ In sum, ‘the concept of a disaggregated State recognizes that wholesale labels are likely to be misleading and/or counter-productive. States are not unitary actors inside or out; absent revolution, they are likely to evolve and change in complex institutional patterns.’ While I’m attracted to the descriptive virtues and practical merits of Slaughter’s account, I wonder if we might nonetheless salvage some of the normative criteria that go into determinining degrees of ‘instability’ in the above index. I’m thinking here of Allen Buchanan’s proposal for a ‘justice-based’ theory of political legitimacy (wherein democracy is ‘either an element of justice or a necessary instrument for achieving justice’). Slaughter herself concedes that ‘it may seem odd to praise the act of turning a blind eye to the abuses and worse elsewhere in a national political system.’ In this vein, Slaughter’s disaggregated State bears some comparison with Buchanan’s suggestion for ‘”unbundling” the set of powers,… Read more »