Failed States and Legal Fictions

I am struck by the remarkable number of legal fictions salted throughout our discussion of failed states. All states, of course, are fictions. But the fictional norms of statehood carry with them a series of assumptions of how states will function and how they can be persuaded or compelled to act. Thus, as Chiara discusses at length, the requirement that new states possess a government assumes that government will be capable of functioning. A non-functional government leaves a state without human agents to direct its affairs and the requirement might as well not be imposed in the first place. It is one thing for the law to assign sentience to a group of people in a territory – the routine fiction of statehood. It is another to pretend that sentience actually exists and that the state can participate in processes of the legal community that assigned it sentience in the first place.

A failed state’s ability to carry out the obligations of UN membership (UN Charter, art. 4) is thus a fiction. As Chiara points out at length, it is also a fiction that failed states can perform existing treaty obligations and a fiction that they enter into new treaties in good faith. This is especially true of any treaties involving concrete reciprocal obligations. It is a fiction that failed states can benefit from the erga omnes obligations of other states.  And it is a fiction that any real agency relationship exists between a failed state and individuals purporting to represent it internationally, since the agent’s authority is derivative of the principal’s (i.e. the government’s) authority.  Of course the essence of a failed state is that the government exercises no real authority.

The ultimate fiction arises when the international community purports to exercise authority over a failed state pursuant to that state’s consent. During the first UN Somalia intervention in 1993, UNSOM II created a Transitional National Council to serve as “the repository of Somali sovereignty” during a two-year transition period. The Council was modeled on a similar body created for Cambodia in the Paris Peace Accords.

The consent in these cases was given by entities created by those to whom the consent was given. But if consent was to be had it could only come from manufactured bodies. In the case of Somalia no governmental authority existed. In the case of Cambodia the politics was so fractious that the UN determined it would be unable to secure the authority it would need to mediate disputes in the run-up to elections in 1993.

A variation on this theme was the consent of the Bosnian Serb party to the Dayton Accords. President Milosevic purported to act on their but this arrangement was an outright falsehood at worst and the result of coercion at best. But the arrangement was critical. On the one hand the Accords could not be completed without Bosnian Serb consent. On the other, the Bosnian Serb leaders (Karadzic and Mladic) had been indicted by the ICTY prior to the Dayton meeting and the U.S. would have had no choice but to arrest them if they had arrived for the negotiations. Thus the legal fiction of their delegation of authority to Milosevic was the only route to an agreement that included all the parties. (Self-promotion alert: I analyze these and other like cases of fictional and coerced consent in my book Humanitarian Occupation).

So far international law has not taken this elaborate fictional façade as a sign that failed states should be treated, in some or all respects, as legally different from functional states. Political scientists observing the same phenomena have not been so reticent. Robert Jackson famously refers to failed states as “quasi-states” and distinguishes been the empirical and juridical function of states, the former being missing in cases of failure. Of course there are compelling reasons for not creating separate legal categories. For one, shearing attributes of statehood from a territory might begin its descent down a slippery slope to terra nullius open to acquisition by others. But these dangers must be weighed against the costs to the coherence and legitimacy of international law. Can we continue to say that politically moribund states are juridically equal to their fully functional brethren?