Failed states. Die normative Erfassung gescheiterter Staaten (Berlin: Duncker & Humblot, 2005), 260-261, argues that effective control is lacking ‘by definition’ (‘definitionsgemäß’) in such cases, and attribution could not even be established with overall control as a test; G. Cahin, ‘L’état défaillant en droit international: quel régime pour quelle notion?’, in: Droit du pouvoir, pouvoir du droit: Mélanges offerts à Xxxx Xxxxxx (Bruxelles: Bruylant, 2007), 177, at 203; X. Xxxxxxxxx, ‘Failed States and International Law: The Impact of UN Practice on Somalia in Respect of Fundamental Rules of International Law’ (2010) 53 German Yearbook of International Law 727, at 749-750; X. Xxxxxxxxxxxx, Kollabierter Staat und Völkerrechtsordnung: zur Aktualität der Westfälischen Ordnung, entwickelt an Fragen des Wegfalls effektiver Staatsgewalt (Wien: Neuer Wissenschaftlicher Verlag, 2011), 523.
Failed states. Die normative Erfassung gescheiterter Staaten (Berlin: Duncker & Humblot, 2005), 272-277. itself incapable of taking action due to the loss of control over territory or (partial) collapse of its governmental apparatus under such circumstances, this would not automatically result in its responsibility under international law.115 The case in which a tribunal came closest to – but still stopped short of – holding a state responsible for failing to maintain an adequate govern- mental apparatus is illustrative in this regard. The Xxxx case concerned the murder of an American mine employee by bandits in 1923, during a period of instability following the 1910-1920 Mexican Revolution. in evaluating Mexico’s efforts to provide protection, the tribunal noted that: There is information that an unfortunate condition of lawlessness, beginning in 1910, existed in the locality in question during a considerable period of time. it appears that a local military commander found himself unable effectively to combat these conditions because as he declared, his forces were diminished by the withdrawal of troops for military operations in another section of the coun- try. The sparsely settled condition of this locality and military exigencies are emphasized in the Mexican Brief as a defense to the complaint of lack of protec- tion. The Commission has taken account of such matters in considering the subject of the capacity to give protection. But there are of course limits to the extent to which they can justify a failure effectively to deal with lawlessness. And conditions such as it appears existed in this region may also reveal both the necessity for urgent measures as well as a censurable failure of efforts on the part of authorities to deal with lawlessness.116 Nonetheless, the failure of the authorities ‘to deal with lawlessness’ was then contrasted with the fact that they had been equipped with the means to take some action in the same locality on other occasions.117 in other words, the tribunal was questioning whether the authorities did indeed face a lack of means, rather than preparing to hold Mexico responsible in the absence of such means. in the end, given that there was ‘evidence of unusual difficulties confronting the authorities in the region in question’ and that
Failed states. Die normative Erfassung, 256; Cahin, ‘L’état défaillant’, 202; Kreijen, State Failure, 273-275; Xxxxxxxxxx, ‘Legal Implications Resulting from State Failure’, 32-33.
Examples of Failed states in a sentence
Failed states produce negative externalities within the international system by harming their own civilian populations or by allowing terrorists to operate on their soil.
Failed states were marked as a contrast to the ideal of states in the Westphalian system, which exercise full sovereign powers over a territory and population, have a functioning government that monopolizes legitimate violence and provides public goods, and can make and keep international obligations.
Failed states usually suffer from severe internal armed conflict, an inability to control territory, and a loss of legitimacy among their citizens.
Failed states and ungoverned spaces nurture possibilities available to violent extremists, insurgents, and transnational criminal organizations, according to the NIS.
Failed states would be of little concern were it not for their creation of negative externalities: human rights disasters, refugee flows, and staging grounds for terrorism and transnational crime, to name a few.
More Definitions of Failed states
Failed states. Die normative Erfassung, 259-270, though he does briefly consider attribution under Article 4 ARSIWA at 257-259; see similarly Leidenmühler, Kollabierter Staat, 520-523. (Articles 9 and 10).35 Exceptions are rare and limited.36 Furthermore, the ARSIWA is not only the starting point of most of these works, but also the endpoint, since – according to their own definition – there is no interna- tional jurisprudence on the matter: a state with no government cannot even represent itself in proceedings.37 Thus, case law tends to be considered only where it was so important to the drafting of an Article that it is extensively referenced in the ARSIWA Commentary itself.38 The dissertation does not share this grim view, and with regard to these fundamental points, there are three ways in which it distinguishes itself from previous works. Firstly, by defining the absence of effective govern- ment as the lack of control over state territory, it extends the scope of inquiry beyond the scenario of a ‘collapsed state’ to cover the more commonly occurring situations of governmental absence. Secondly, by analyzing the relevant jurisprudence, in particular that of human rights courts, the xxxxxx- tation provides a more elaborate examination of state responsibility in these
Failed states. Die normative Erfassung, 261-265; Xxxxxxx, State Failure, 277-279; only Xxxxx, ‘L’état défaillant’, 202-204, cautiously argues that a broad reading of Article 9 could allow for attribution. Regarding Article 10 XXXXXX, Xxxxxxxx, Die völkerrechtliche Verantwortlichkeit, 90-95, argues that it can form the basis for subsequent attribution and thus responsibility, while Xxxxx, “Failed states”: Die normative Erfassung, 265-268; Xxxxxxx, State Failure, 279-282, are dismissive of the possibility. See also Kreijen, State Failure, 282, generally on the importance of there being a government.
Failed states. Die normative Erfassung, 269. be responsible for the conduct of its own (lower-level) de jure organs under Article 4 ARSIWA, even in the absence of a central government. In the same vein, the conduct of de jure organs which continue to operate in territory controlled by a non-state armed group is likewise attributable to the state, as long as they act in their capacity of organs. This capacity continues to function as the decisive element in cases where the persons in question have multiple simultaneous allegiances – for instance, where state organs are co-opted by a private actor, or where structures outside the state’s own apparatus are co-opted by the government. In the case of the functional rationale, the scope of attribution is xxxxx- eated by the distinction between ‘personal’ and ‘unpersonal’ acts (notwith- standing the difficulties of classifying a particular act as one or the other). If those exercising governmental functions do so to further their own goals, this by definition cannot be regarded as acting on the state’s behalf. If, on the other hand, they do so simply to carry on performing routine functions, for instance in providing public goods, this can reasonably be seen as acting on the state’s behalf – even if not on the (central) government’s behalf. This can also have implications for the unpersonal acts of co-opted officials with multiple allegiances. Article 4 ARSIWA only covers the conduct of such officials as long as they act within their capacity as de jure organs. Article 9, however – at least if one decides not to apply the ILC’s third, normative, requirement – extends to the situation where such officials act in a different capacity (e.g. under the control of a non-state actor or third state), as long as their conduct is unpersonal. But while the rule’s functional rationale – the reason for its inherent restriction to unpersonal acts – ensures that only those acts are captured which may indeed be considered as carried out on the state’s behalf, the same rationale severely limits the scope of applicability and thus the practical utility of this Article. Furthermore, if one does apply the ILC’s third criterion in Article 9, this leads to precluding attribution in all cases except where the authority exercising governmental functions – be it a self-organizing grassroots institution or a local de facto government – moved into a pre-existing vacuum. That said, once an actor secures control over (practically) the entire territory of t...
Failed states. Die normative Erfassung, 263-264. 68 ARSIWA Commentary to Article 9, para. 5. 69 Statement of the Chairman of the Drafting Committee, Xx. Xxxxx Xxxxx, 13. But although this passage does appear to assume the existence of a govern- ment in office, its focus is on the distinction between (local) governmental absence and incapacitation – and more specifically, on the acknowledgement that governmental presence does not necessarily equate to governmental control – rather than the existence or lack of a central government. Even if the statement could be read as requiring a government in office, it does not explain how ‘total collapse’ could be covered under Article 9 ARSIWA, as the Commentary asserts – leaving the ILC’s work contradictory at best on this issue. Granted, it is puzzling that the Commission did not address situa- tions of complete governmental absence (more) specifically, given that the phenomenon was well known by the time the ARSIWA were finalized in 2001: at that point, Somalia had been without an internationally recognized government for almost a decade.70 In fact, when commenting on the Draft Articles, the Netherlands specifically mentioned the case of Somalia as a situation to which it could be applicable and regarded Article 9 as ‘useful’ in this respect.71 But while there is no mention of such scenarios in the ILC’s work, there is no indication that this would have been a deliberate omission, either.72 In the end, the first criterion does not explicitly exclude (or even address) total collapse, while the second one does explicitly include it; and such an inclusive reading also helps resolve an unnecessary contradiction. On balance, therefore, there are more persuasive arguments supporting the interpretation of the ILC’s statement as a distinction than as a restriction. Finally, the third requirement of Article 9 ARSIWA is that the circum- stances must have called for the exercise of state functions. As the Commen- tary points out, there is thus a ‘normative element’ in Article 9, which makes it unique among the attribution articles regarding private conduct.73 But it is unfortunately not specified any further what that normative element might be, beyond generally stating that ‘some exercise of governmental functions was called for, though not necessarily the conduct in question.’74 Similarly, in his statement on the work of the Drafting Committee, its Chairman 70 See e.g. X. Xxxxxxxxxx, ‘Legal Implications Resulting from State Failure in Lig...
Failed states. Die normative Erfassung gescheiterter Staaten (Berlin: Duncker & Humblot, 2005), 261, pointing out that in the literature, failed states are regarded as the typical case of application (‘typischer Anwendungsfall’) for Article 9 ARSIWA, referring – among others – to X. Xxxxxxxx & X.X. Xxxx, ‘Introduction and Overview’ (2002) 96 American Journal of International Law 773, at 783; and X. Xxxxxx, ‘Der Wegfall effektiver Staatsgewalt: “The Failed State”’, in: X. Xxxxxx, X. Xxxxxxxx & X. Xxxxxxx, Der Wegfall effektiver Staatsgewalt: ‘The Failed State’ (The Breakdown of Effective Government) (Heidelberg: X.X. Xxxxxx, 1996), 9, at 32. Xxxxxxxx & Xxxx specifically write that ‘[i]n failed or poorly functioning states, Article 9 provides for state responsibility if nonstate actors step in to perform governmental functions in the absence or default of official authority.’ See also X. Xxxxx, The ‘War on Terror’ and the Framework of International Law (2nd ed., Cambridge: Cambridge University Press, 2014), 79. 9 See x.x. Xxxxxxxx & Xxxx, ‘Introduction and Overview’, 783; Xxxxxx, ‘Der Wegfall effek- tiver Staatsgewalt’, 32. in office’.10 In the end, virtually all authors – with the exception of Xxxxxx Xxxxx – conclude that the Article is not applicable to situations of ‘failed’ or ‘collapsed’ states.11 To a large extent, this skepticism can be traced back to the fact that authors tend to use a very narrow definition of the absence of effective government.12 In fact, Xxxxxxx Xxxxxxxx explicitly concedes that Article 9 could play an important role in ‘failing’ (as opposed to ‘failed’) states, where a government is still in existence.13 But such a concession does not resolve the problem entirely: since Article 9 ARSIWA is based on the ‘absence or default’ of the government, the possibility of applying the Article to cases of complete collapse cannot be dismissed so easily.14 In addition, some further features of Article 9 ARSIWA have been identified in the literature as limita- tions or even obstacles to the applicability of the Article in the absence of effective government, which warrant further analysis.15 Against this backdrop, the following sections first trace the origins of the rule in Article 9 and the conditions set by the case law, then turn to examine the ILC’s work on the Article and the problems highlighted by the literature, in order to determine whether these concerns do indeed preclude the application of the rule in situations of ‘state failure’. Finally, the ...
Failed states. Die normative Erfassung, 257-259; Leidenmühler, Kollabierter Staat, 520-522. See also X. Xxxxxxxxx et al., ‘Failing States: A Global Responsibility’, Adviesraad Internationale Vraagstukken (Advisory Council on International Affairs), Advice No. 35 / Commissie van advies inzake volkenrechtelijke vraagstukken, Advice No. 14, 7 May 2004, xxxxx://xxx.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.xx/documents/publications/2004/ 05/07/failing-states, 16. 158 See Xxxxxxxx, Diplomatic Protection, 189-193. 159 See Ago’s Third Report, paras. 151-160; ILC, Draft articles on State responsibility: Chapter II. The “act of the State” according to international law (articles 5-6), in: Yearbook of the Interna- tional Law Commission, 1973, vol. II, 188, at 196-197, paras. 9-15. 160 See also ARSIWA Commentary to Article 4, paras. 6-7. 161 See ARSIWA Commentary to Article 2, para. 6 and to Article 4, para. 5; ILC, Draft articles on State responsibility: Chapter II, 197, para. 16. 162 Xxxxx Xxxxx, assignee, etc. v. Mexico, Decision of 14 April 1871, in: X.X. Xxxxx, History and Digest of the International Arbitrations to which the United States has been Party (6 vols., Washington, DC: Government Printing Office, 1898), vol. III, 3127, at 3129.
Failed states. Die normative Erfassung, 261-265; X. Xxxxxxxxxxxx, Kollabierter Staat und Völkerrechtsordnung: zur Aktualität der Westfälischen Ordnung, entwickelt an Fragen des Wegfalls effektiver Staatsgewalt (Wien: Neuer Wissenschaftlicher Verlag, 2011), 523-525; Xxxxxxxxx, ‘Failed States’, 750; Xxxxxxxx, Die völkerrechtliche Verantwortlichkeit, 88-90. The one notable exception is Xxxxxx Xxxxx, who maintains that the aim of this qualification is merely to distinguish this scenario from a general de facto government, rather than no government at all, see note 64 below. That said, it is odd that the ARSIWA Commentary does not make any mention of applying Article 9 in situations of complete governmental collapse, particularly in light of the comments of the Netherlands on the draft article, see note 28 below. Xxxxx, “Failed states”: Die normative Erfassung, 263 argues that this is because Article 9 ARSIWA was never meant to apply to such situations, but the ILC’s work he cites in support of this contention – analyzed throughout this section – does not offer conclusive proof of his stance.