Good Governance Under Conditions of Fragile Statehood
Application of the Normative Standards
Is our conception of good governance applicable to fragile states as well? At first sight, nothing seems to prevent us from an affirmative answer. The basic norm of ensuring access to institutions necessary for realizing basic human rights only serves as a minimalist standard of justice that does not conceptually presuppose strong, or even any sort of, statehood. The same is true with regard to rule of law, responsiveness, and participation. The rule of law is conceivable without a monopoly of rightful violence and a jurisdiction based on territory; responsiveness is conceivable without a government; participation is conceivable without a demos (it might be a totality of stakeholders, functionally defined, instead). Although some sufficiently strong constitutional governments do embody the standards of good governance paradig- matically, in and by themselves the standards are formal and flexible enough to become transferred to more troubled conditions as well. In any situation, the rights-based approach lends support to those structures of institutions that are best suited to fulfill the basic norm in forms and by means that are themselves compatible with human rights norms.
In this respect it is important to note that the rule of law, responsiveness, and participation are principles demanding that we do the best we can to make their full application possible. A principle is not abolished by the fact that it is not always possible to act in direct accordance with it. This gives sufficient room for consequentialist calculations that are especially important where the conditions of governance are far from optimal. In order to weight costs and benefits in a nonarbitrary way the following rule might be helpful: the higher the costs of realizing basic human rights in terms of any of the other components of good governance, the greater the gain in terms of basic human rights must be to justify such a policy. To give one example, passing over demands for participation might be required as long as there is strong evidence that a majority would not respect human rights standards toward a minority. In contrast, if two policies are feasible that meet human rights standards equally, but one is much less costly in terms of another component of good governance, for example participation, this policy is preferable, other things being equal. This is an aspect of what Robert Keohane (2007, 7) calls the criterion of “comparative benefit" Insofar as the other components are necessary conditions for realizing basic human rights, we might even be justified in weighting the other way around, too: the greater the loss in terms of basic human rights, the greater the gain in terms of any of the other components must be to justify the loss. Although basic human rights place especially strong constraints on any attempt to optimize political outcomes, these constraints cannot be absolute if otherwise the entire system of rights would break down. This principle can be seen as underlying considerations concerning “humanitarian interventions,” which almost always cause massive violations of basic interests, at least as unintended yet foreseen side effects. Yet, even under extreme conditions, some human rights violations, for example, intentionally punishing innocent people or institutionalizing torture, remain strictly forbidden.