International law and state failure : Somalia and Yugoslavia
The present study considers the treatment of failed States in international law. State failure represents a relatively recent phenomenon, which presents novel problems for the international community to deal with. For international law, the principles and experience of dealing with the creation, continuity and extinction of States present the nearest analogies, and so will form the basis of its responses to failure. Failure is defined as governmental and societal collapse in a State, so severe as to render it incapable of exercising internal and external sovereignty. It is likely to take the form of either conflictual implosion - such as in Somalia; or fragmentary explosion - as in Yugoslav ia. Accordingly, an examination of the treatment of these two failed States, during the early 1990s, provides the substantive basis of the study. The key aspects of Statehood under which the study proceeds are: loss of government as a criterion of Statehood; self-determination, including the emerging right of democratic governance; and recognition. Consideration of the Somali and Yugoslav experiences of failure, and their treatment under the three areas identified, evidences a strong inertia in the international system against findings of State failure - the Somali experience. The only exception is if such a finding is coupled with a potential solution, such as the possible emergence of new States - the Yugoslav experience. The determinations constitute a meta-legal process, which can be seen as indicative of a new conception of 'political international law'.