III State Building and Good Governance. The Role of External Actors

International Legal and Moral Standards of Good Governance in Fragile States

Bernd Ladwig and Beate Rudolf

Fragile states abound in the world today. The reasons for state fragility vary greatly, from ethnic tensions, social unrest, or increased migration caused by economic or environmental factors to interstate conflicts over territory or resources. As a result, numerous entities that are considered to be “states” under public international law are unable to exercise power over all their territory or in all policy fields. Yet, even if a state, by its fragility, verges on dissolving or being a “failing” or “failed” state, it remains a state in the legal sense. This characterization hardly squares with the traditional requirement of the definition of a state according to which its authorities must exercise effective power over its population and territory. Yet, through this legal fiction, international law protects “failed” states from becoming terra nullius and hence the object of military conflicts for its annexation.

Nevertheless, the legal fiction does not mean that sovereignty is an impenetrable shield and that statehood is recognized unconditionally. Today, sovereignty has become a normatively laden concept. States are bound, in their actions, by human rights, the rule of law, and the obligation to be responsive to the needs of their populations and to ensure their political participation. These demands stand in tension with the fact just mentioned that fragile states are unable to fulfill even the basic function of states—securing internal peace-let alone the more ambitious normative standards of good governance.

In discussing solutions to this tension, we will proceed as follows: we will show that the rather ambitious standards of good governance are already part of positive law, and that they also can be justified by a rights-based approach of political morality. Applied to conditions of fragile statehood, the criteria pose problems of legitimacy on two logically distinct levels. We argue that this gives reason to focus primarily on a responsibility to rebuild, which is already recognized by international law. It encompasses, in particular, the obligation to establish institutional structures and social cohesion that may necessitate taking nonstate actors into account. We conclude by finding that not only states, but nonstate actors and the international community are bound by international legal standards of good governance.

In our contribution, we develop a normative concept of good governance based on public international law and political morality that is built on the analytical concept of governance as explained in the introduction. Our focus is on fragile states, that is, areas of limited statehood nearing the end of the continuum, where governance is rarely, if at all, achieved by the state. For this reason, the question of normative standards for governance by nonstate actors and the international community is particularly urgent.

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