Academic

Richardson on Failed States

By Lawrence Solum

Henry J. Richardson III (Temple University - James E. Beasley School of Law) has posted 'Failed States,' Self-Determination, and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations (Temple International & Comparative Law Journal, Vol. 10) on SSRN.  Here is the abstract:

This article will argue that "failed states" should not pass into international law because to do so will cause more harm than good to the larger international policy goals of human dignity, in regards to authority functions of both prescription and application. The concerns regarding problems in selected states that the term "failed states" tries to address are generally new versions of the perennial dilemma of a state-centric international legal system: how to develop, without interfering with sovereignty or human dignity, adequate means to protect the rights of individuals and diverse groups within states whose politics, economic resources, government leaders, and institutions may be inadequate in this regard.

This perennial dilemma, as we move towards the upcoming century, can be better addressed by recognizing and ultimately rejecting the implicit notion among some elites that self-determination is an illicit claim whose proponents are best suppressed in the name of international public order. Others might argue that the notion that self-determination is an illicit claim is fundamental to continuing hegemony between dominant and client states. This article argues that the self-determination claims by peoples, plus the inadequacies of the encapsulating encompassing states in their national, regional, and international context should be addressed directly by re-affirming the right of self-determination and thereby upholding an international public order of human dignity. In this connection, more focused international procedures to ameliorate these intra-state conflicts must be established.

This article further argues that the diplomatic and academic energy now being spent to establish workable criteria of "failure" of a state could better be re-directed towards establishing arenas for essential, focused preventive diplomacy. Such arenas would comprise structures for mediation/arbitration and other forms of decision making, based on rights-oriented procedures, to address claims of self-determination arising within a troubled state by identifiable groups as against that state government. There are currently no inter-national standing arenas-aside from, in theory, the International Court of Justice-where authoritative decisions can be made regarding the relevant parties about the balance of self-determination-related rights, and pre-existing constitutional arrangements, in a situation of potential national conflict, before it deteriorates into trans-national fighting, insurrection, civil war, or revolution. Such arenas must be established, and the consequence, inter alia, of a decreasingly state-centric orientation to these problems is a preferable objective compared to current approaches.

The closing sections of this article discuss several emerging issues towards institutionalizing preventive diplomacy. New procedures for international recognition of groups' self-determination claims are critical. They are especially so pending the U.N. reform needed to meet widespread perceptions that the Security Council and other organs competent to address public order and strife in Southern Tier states are dangerously undemocratic and dominated by a few powerful states' exclusive foreign policy objectives.

This article shows that "failed states" is a confused label that is dangerous as a proposed doctrine. Its current usage by journalists, policymakers, and scholars adds to the confusion. Its predicate facts attract the label of "failure" as a normative individualized weapon only out of the Northern Tier. The term, insofar as used in the Southern Tier, seems to imply a wider legal and moral liability on the part of the governing bodies of the Northern Tier for colonialism's consequences; it is becoming a rallying call for African action. Insofar as this label is an inchoate cry for "something to be done," that cry should be answered through policies that empower local peoples, under their right jus cogens of self-determination and their right to democratic government, to create, with international encouragement, new national constitutive accommodations under U.N. Charter principles.

Full post as published by Legal Theory Blog on November 12, 2008 (boomark / email).