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, 267, relying on the opinion of Commis- xxxxxx Xxxxxxx in Sambiaggio, 507. 201 ARSIWA Commentary to Article 10, para. 7. 202 Ibid. 203 See x.x. Xxxxxxx, State Failure, 281. 204 See ibid., 281-282; cf. Cahin, ‘Insurrectional Movements’, 252: ‘Such strict conditions, however, would seem to limit the envisaged situations to those of a large-scale civil war.’ ture is surprisingly divided on the question of whether it can be applied to situations where an effective government has been lacking. Employing a narrow definition of ‘state failure’, authors tend to consider the applica- bility of Article 11 only in cases where the government has already been re-established following the period of absence, the underlying assumption being that in the absence of a government, there is no-one on behalf of the state to acknowledge and adopt the conduct in question.205 Accordingly, the most often voiced concerns relate (directly or indirectly) to whether this rule can operate retroactively – a question that was left unanswered by the ICJ in Tehran Hostages, the case which prompted the Article’s inclusion in the ARSIWA. Against the backdrop of this uncertainty, each author has put forward a different opinion on the matter. Xxxxxx Xxxxxx has simply proceeded on the assumption that the rule could be applicable to such situations, without analyzing the question in any detail.206 Xxxxx Xxxxx has cited criticism from the literature on how ex post facto endorsement is too weak a link to be deemed sufficient grounds for attribution; yet at the same time, he has also highlighted that the application of this rule depends on the discretion of the new government, which would suggest that he admits the possibility of such retroactive attribution.207 Xxxxxxx Xxxxxxxx has gone furthest in dismissing the applicability of Article 11. Relying on Xxxxxx Xxxxxx, he has argued that the ICJ in effect set two conditions in Tehran Hostages: the state must want to actually control the conduct of the non-state actors, and it must be able to decide on the course of events.208 It is important to note that this last argument goes beyond the problem of retroactivity, denying the possibility of attribution even under a broad definition of ‘state failure’, i.e. where the government still exists at the time of the events but has no control over them. In order to find out whether these counter-arguments are well-founded, it is necessary to examine the origins of Article 11 XXXXXX and...
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, 262; Leidenmühler, Kollabierter Staat, 523-524. The Xxxxxx award itself, however, appears to contradict this argument. The Claims Commission’s crucial statement – that ‘public authorities that were obliged to watch over and to protect life and property continued to exist’178 – contrasts sharply with the situations envisaged under Article 9 ARSIWA, where the Commentary notes that private actors act ‘on their own initiative.’179 Instead, the Commission attributed the conduct of these authorities to Mexico based simply on their status as state organs and their continued functioning. This conclusion is, in fact, consistent with the conceptualization of the state as a legal order. Even if the effectiveness of the legal system is necessarily impaired by the collapse of the central govern- ment (since certain functions can no longer be performed), it is precisely the continued functioning of lower-level organs which prevents the legal system from becoming wholly ineffective and thereby losing its validity. As the Xxxxxx case illustrates: despite the difficulties they may have faced, the police and the judiciary were working to ensure that the laws were upheld in Mexico City even – or especially – during those turbulent times. Accordingly, as long as organs continue to function, their conduct will, by definition, be attributable to the state. The same rationale applies to entities covered under Article 5 ARSIWA as well. While new authorizations – inas- much as these were the prerogative of the central government – cannot be issued, it is difficult to see why previously empowered entities could not legally continue to exercise their governmental authority. Beyond providing theoretical consistency, attribution under Articles 4 or 5 (rather than Article 9) also has practical consequences. Since Article 9 ARSIWA is based on the rationale of functionality, its scope is rather limited, extending only to those acts and omissions that are intrinsic to the exercise of governmental functions. In contrast, attribution under Articles 4 or 5 ARSIWA triggers the applicability of Article 7, extending the scope of attributable conduct to include abuse of authority. Nonetheless, it is important to highlight that continuity plays a key role here. This is best demonstrated by the case of Puntland, which – rather than claiming independence from Somalia – awaits the re-establishment of federal state structures, intending to become a constituent unit. However, ...
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, 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.
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.
Failed states. Die normative Erfassung, 264, who uses this ostensible condition of knowledge as support for this argument that Article 9 requires the existence of a central government to apply.
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, 266-267; Xxxxx, ‘Failed States: Legal Aspects’, 483; Cahin, ‘L’état défaillant’, 197-198, 204; Leiden- mühler, Kollabierter Staat, 525.