State Failure: Long Live Failed States

My apologies for this late entry in the discussion of state failure. I’d like to address what I see as the central legal paradox that Chiara raises in her fascinating new book. That is the disjunction between the criteria for creating states and the criteria governing their extinction. Chiara demonstrates that many failed states might well be ineligible for statehood under the former but are clearly entitled to remain as states under the latter. Indeed, as she also demonstrates, contemporary international law provides remarkably few legitimate means by which any state may be extinguished short of its voluntary merger with another state. Even then questions would likely arise about the legal effect on individual citizens. To the extent the causes of state collapse are unlikely to disappear any time soon, then, it would appear that failed states will remain a fixture of the international agenda.

The first point to be made about this state of affairs is that it is partly of international law’s own making. Not completely, of course, but the legal contribution is clear. Most of the worst examples of state failure (according to the useful Index on State Failure) occur in former colonies. General Assembly Resolution 1514 famously declared that “Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.” There was more than good reason for this at the time. But the consequence was that many colonies entered statehood with only a minimal capacity to govern their territories. Many, moreover, were ethnic polyglots with borders drawn by colonial authorities with no regard to local preferences. But the principle of uti possidetis precluded (in most cases) redrawing those borders. Finally, when faced with states fragmentation, secessionist movements, predatory states seeking to annex their neighbors and mass expulsions of people, international law has overwhelmingly sought to maintain existing borders and populations. Even where states ultimately do fragment that outcome is hardly the international community’s first preference.

All these legal choices closed doors on opportunities to enhance, rework or just do away with failing states. I am not saying these were the wrong choices. My point is rather about their (hopefully) unintended consequence of supporting failed states.

Second, one reason international law may prevent the extinction of failed states is that it has other remedies available for the causes of failure. Although Chiara makes the important point that state failure exists on a continuum, I think she is speaking mostly about the degree of failure. Equally important in my view is that different reasons for state failure may engage different legal principles and objectives.

Thus, some states fail because of civil wars (Uganda, Nepal currently #21 and #26 respectively on the State Failure Index). Some fail because they are governed by a vindictive authoritarian regime (Zimbabwe (#4) and North Korea (#19). Some fail because of profound ethnic/national/religious cleavages (Sudan (#3)). Some fail because the ruling class seems incapable of effective management (Haiti (#11)). Some fail because of the many consequences of external intervention (Iraq (#7) and perhaps Haiti again). And some fail because anarchy seems to have acquired its own destructive inertia (Somalia (#1)).

These situations are not the same in the eyes of international law. International law generally regards the fact of civil war (as opposed to the tactics used) as representing a profound disagreement among citizens over governance in their state. That is a largely a matter for citizens to resolve themselves. A more exacting view of internal conflict might further distinguish “legitimate” disagreements over state policy from mere conflict for power between armed militias (DR Congo (#5). Moving to another reason for state failure, there are increasing pressures for regime change in authoritarian failed states – for example, the refusal of the Commonwealth to recognize the results of flawed elections in Zimbabwe. The objective of such democracy-based norms is not to build up state authority where it is lacking but transfer authority to new leaders. In yet another category, the international community seems poised to abandon its traditional commitment to existing borders in the case of Sudan and allow the south to secede if it prevails in an upcoming referendum. It seems international law lacks a strategy only in cases of endemic mismanagement or outright governmental collapse. Here Chiara proposes a trustee-like solution that will be the subject of a future post.

Finally, while international law has certainly lacked a coherent set of tools to assess state failure, I think we should be wary of creating a distinct legal category of failed states. This was famously attempted by John Yoo in a U.S. Justice Department memorandum that has been overshadowed by the more notorious torture memos. Yoo argued in January 2002 that because Afghanistan was a failed state it had ceased to be a party to the Geneva Conventions. The State Department properly responded to this claim that international law did not regard a state’s political failure as involving its legal failure; that is, a change in the state’s legal status or rights and obligations. In one of the few acts of courage by Bush administration lawyers, Legal Advisory Will Taft told Yoo that his argument was “contrary to the official position of the United States, the United Nations and all other states that have considered the issue.” I don’t at all suggest Chiara makes this sort of proposal. But Yoo’s effort to use the idea of state failure to undermine critical international legal principles should remain a cautionary tale.