Indiana Journal of Global Legal Studies

Introduction

Failed states, not so long ago, were discussed as a problem of foreign aid or social theory. Only prescient thinkers and policy makers identified them as a priority of national security. The atrocities of September 11, 2001, did not make failed states a problem but very much did trigger recognition that severe civic dysfunction in one part of the globe might well have consequences elsewhere. An Afghanistan or a Somalia has first and final responsibility for its own future. At the same time, so widely can such a state spread disruption that 'its' affairs and 'ours' now can be said to be segregated only in a carefully qualified way. New alertness about national security has brought an unprecedented increase in creative analysis of the problem: What to do about failed states?

The predicate question—what is a "failed state?"—by no means lends itself to an easy answer. Like many questions involving statehood and international relations, the question of the failed state becomes more complicated the further one moves from the clear, core examples. It can little be controverted that Somalia and Afghanistan are in some important sense 'failed.' But, if characterization of a state as 'failed' may open the door to international intervention—even, potentially, intervention that leads to radical revision of the contours of the state—then the criteria for that characterization are very important indeed, for their existence in a state would lead to the displacement of the important presumption of modern international law that the state enjoys legal autonomy and is the vehicle whereby its citizens realize their right to self-determination. Yet autonomy and self-determination well may be the very principles impelling intervention; states in the developed world may argue that their own rights are derogated when violent and uncontrolled forces arise in a failed state and disrupt public order in their territories. [End Page 51]

At least two problems present themselves. First, the definition of 'failed state' could be manipulated to justify intervention where the real object was not self- defense but bald imperial gain. A pre-emptive notion of self-defense may extend foreign policy to the limits of international law, but empire building, under contemporary norms, plainly will find no principled justification whatsoever. Second, intervention, if unfettered by consensus as to the proper scope of the practice, could disrupt international order, as regional and global powers apply inconsistent standards in deciding where and when intervention is appropriate. Very tentatively, then, a failed state can be defined by reference to these criteria:¹

1. 1. either no government exists or any government that does exist cannot discharge the international obligations of the state;

2. 2. no single government exists that can provide basic public order throughout the state territory, or most of it;

3. 3. public order in substantial parts of the territory of the state has broken down to the point where personal security is severely compromised and all or most forms of constructive, communal, or corporate activity are precluded by uncertainty and violence; and

4. 4. this state of affairs results not from transitory phenomena (famine, flood, short-term political crisis) but, rather, reflects an enduring systemic problem or problems unlikely to be resolved through limited, conventional measures, such as statutory reform by municipal law- makers, new financial structures backed by international lending institutions, or material relief from donor countries.

It is clear from these tentative criteria that, though the state may continue to exist as a formal matter under international law—indeed, it often will in such cases²—severe pathologies disrupt its functioning in practice. Ancillary criteria may be considered in the situation, not at all rare, where a government subsists in some part of the territory of the state. For example, it may be relevant that the government must resort routinely to extreme violence to retain what purchase it has over the country; or that it has proved unwilling to abide or attempt to abide [End Page 52] by international standards, particularly those relating to international security (e.g. arms control, denying safe harbor to terrorists). Again, the prospect for improvement by limited, conventional measures may be important in...