State Failure, Sovereignty and Effectiveness

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1 State Failure, Sovereignty and Effectiveness Legal Lessons from the Decolonization of Sub-Saharan Africa by GERARD KREIJEN with a Foreword by SIR ROBERT Y. JENNINGS, CBE, QC MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

2 CONTENTS FOREWORD by Sir Robert Jennings vii 1 INTRODUCTION 1 2 ON THE STATE AND STATE FAILURE 7 1. Introduction 7 2. The State in International law Introduction The State within the International Legal Order Statehood and Legal Personality Recognition The Declaratory and Constitutive Schools of Recognition The Criteria for Statehood The Classical Criteria 18 (i) Permanent Population 19 (ii) Defined Territory 19 (iii) Government 20 (iv) The Capacity to Enter into Relations: Independence Additional Criteria The Principle of Effectiveness: Some Preliminary Comments Sovereignty A Brief Etymology Some Basic Features of the Modern Concept A Multi-faceted Concept: Relevant Facets The Watershed between Traditional and Modern Doctrine Application of the Criteria for Statehood: Questions of Continuity and Extinction The Sociological and the Normative Conception of the State Introduction The Unity between Reality and Ideas The Sociological Conception of the State The Normative Conception of the State The Empirical and the Juridical in Statehood Legal-Formalism Kelsen's Legal-Formalism State Failure as a Test for the Authenticity of Values 57 I 4^State Failure Introduction Somalia 66

3 M.3. The Democratic Republic of the Congo 73,, 4.4. Liberia Sierra Leone On the Main Features of State Failure On the Internal Features of State Failure On the External Features of State Failure Reduced Capacity: Additional Observations The Essence of State Failure The Failed State from the Perspective of the 'Is' and the 'Ought' The Centre Cannot Hold Cases not to be Considered as Genuine Cases of State Failure The Essence of State Failure: A Lack of Capacity or Power Adding Some Perspective 98 3 AFRICAN INDEPENDENCE AND THE TRANSFORMATION OF SOVEREIGNTY Introduction Positive and Negative Sovereignty The Decline of Colonialism and the Expansion of International Society Colonialism as a Feature of the pre-second World War Order Hl 3.2. The Outlawing of Colonialism Colonialism Discredited Evolutionary Decolonization in Response Colonialism Abolished The Political Storni in the UN The Right to Self-Determination of Colonial Peoples Precipitate Decolonization The New Game of Negative Sovereignty The Re-coining of Statehood The Relaxing of the Traditional Criteria Casual Recognition (at Entry) The Abandonment of Effectiveness The Re-coined State Juridical Statehood But is Juridical or Weak Statehood Really New? Some Particularities of the New Game A Title to Development A Particularly Negative Game Fail-safe Recognition (at Exit) Putting the Horse behind the Cart Juridical Statehood outside the Colonial Context: Why Africa is not 'Just Differenf Final Observations 167

4 THE ABANDONMENT OF EFFECTIVENESS Introduction The Swing of the Pendulum Dissolving the Unity between Reality and Ideas Introduction Effectiveness in International Law: General Discussion The UnStaatlichkeit of the International Legal Order and the besondere Wirklichkeitsnähe of International Law The Duality of Effectiveness Effectiveness and Power Effectiveness and Recognition Effectiveness and Responsibility Effectiveness and the Unity between Reality and Ideas The Inevitable Relationship between the 'Is' and the 'Ought' The Relationship between the 'Is' and the 'Ought' as an Expression of the Unity between Reality and Ideas Effectiveness: The Unifying Factor Unexpected Support: Kelsen's Normative Theory Kelsen and the Principle of Effectiveness 'The World of the "Ought" Remains a Mystery' National Courts and Revolutionary Change of the Basic Norm Statehood, State Failure, and the Abandonment of Effectiveness Introduction Level One: The State as an Expression of Positive International Law Level Two: The State as the Enforcer of International Law Linking Levels One and Two 236 SOME ILLUSTRATIONS OF THE CONSEQUENCES OF INHERENT WEAKNESS Introduction How Weak States Fail Compensating for a Lack of Substance by Stressing Form S0rensen's Insecurity Containers Introduction The Interplay between the Internal and the External The Herz-Hobbesian Security Dilemma From Weak Statehood to State Failure The Failure to Respond The Evasion of the Normative Character of International Law State Failure as a Threat to International Constitutionalism The Erosion of Accountability The Setting The Central Argument 269

5 The Irresponsibility of the Failed State 270 (i) The Draft Articles on State Responsibility: Some General Remarks 271 (ii) The Problem of Attribution 273 (iii) Material Impossibility The Cascading of Responsibility Some Additional Observations 291 A LITTLE ORDER Introduction Restoring the Unity between Reality and Ideas A Brief Note of Pessimism Outlining the Foundations Some Non-viable Options Humanitarian Intervention Allowing Secession Giving War a Chance Reviving the UN Trusteeship System for Failed States Trust: Some General Observations International Trusteeship The Mandates System of the League of Nations The International Trusteeship System of the UN International Territorial Administration Some Tentative Considerations on a UN Trusteeship for Failed States Why a UN Trusteeship May Work Why a UN Trusteeship May Not Work The Main Legal Obstacles and the Requirement of Consent Withdrawal of Recognition Introduction The Case of Somalia The Absence of Government Withdrawal of Recognition in International Law Withdrawal of Recognition: General Considerations An Inquiry into Legal Doctrine Withdrawal of Recognition: Additional Considerations 349 (i) Effect and Nature of the Act of Withdrawal 349 (ii) Individual or Collective Withdrawal of Recognition? Withdrawing Recognition from Somalia: A Hypothetical Case The Somali Paradox The Advantages and Disadvantages of Withdrawal: Some Tentative Considerations Putting Things into Perspective Self-Determination: The Final Hurdle 363

6 7 CONCLUSIONS The Decolonization of Sub-Saharan Africa Recognition Sovereignty Effectiveness State Failure How It Came About What It Essentially Is What Can Be Done About It? The General Perspective: Why Hobbes was Right 377 INDEX 385

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