Failed States or the State as Failure- - Georgetown...

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Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2005 Failed States, or the State as Failure? Rosa Ehrenreich Brooks Georgetown University Law Center , [email protected] This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/facpub/1108 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/facpub Part of the Human Rights Law Commons , International Law Commons , Military, War and Peace Commons , and the Social Policy Commons 72 U. Chi. L. Rev. 1159-1196 (2005)
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The University of Chicago Law Review Volume72 Fall2005 Number4 © 2005 by The University of Chicago Failed States, or the State as Failure? Rosa Ehrenreich Brookst This Article seeks to challenge a basic assumption of international law and policy, arguing that the existing state-based international/ega/ framework stands in the way of developing effective responses to state failure. It offers an alternative theoretical framework designed to spark debate about better legal and policy responses to failed states. Although the Article uses failed states as a lens to focus its arguments, it also has broad implications for how we think about sovereignty, the evolving global order, and the place of states within it. State failure causes a wide range of humanitarian, legal, and security problems. Unsurpris- ingly, given the state-centric international legal system, responses to state failure tend to focus on restoring "failed" states to the status of "successful" states, through a range of short- and long-term "nation building" efforts. This Article suggests that this is a misguided approach, which in some cases may do as much harm as good. In large part, this is because most "failed" states were never "successful" states. Indeed, the state itself is a recent and historically contingent development, as is an international legal system premised on state sovereignty. What's more, both states and the state-centric international system have poor track records in creating stability or democratic accountability. This Article explores the implications of this for approaches to failed states. It concludes that although the existing state system is likely to survive for some time to come, despite the challenges of globalization, not all states will or should survive in their current form. The populations of many failed states might benefit more from living indefinitely in a "nonstate" society than in a dysfunctional state, artificially sustained by international efforts. Long-term "nonstate" arrangements could range from international trusteeships to affiliations with willing third-party states to special status within regional bodies, and alternative accountability t Associate Professor of Law, University of Virginia School of Law. This Article has bene- fited greatly from comments made by workshop participants at the University of Virginia School of Law, Boalt Hall School of Law, the Georgetown University Law Center,
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