American University International Law Review Volume 12 | Issue 6 Article 1 1997 Saving Failed States: Sometimes a Neocolonialist Notion Ruth Gordon Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Gordon, Ruth. "Saving Failed States: Sometimes a Neocolonialist Notion." American University International Law Review 12, no. 6 (1997): 903-974. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Saving Failed States: Sometimes A Neocolonialist Notion Ruth Gordon I. Introduction .................................................. 904 II. Disintegrating States: The Problem ................................ 913 A. Defining the Problem ........................................ 913 B. Why Disintegration ......................................... 916 III. Trusteeship: The Proposed Solution ................................ 923 IV. International Supervision Through Trusteeship ...................... 926 A. The Colonial Enterprise ...................................... 930 1. The Rise of Colonialism and Its Rationalizations ............. 930 2. International Law and the Colonial Enterprise ................ 935 B. The Mandate System ........................................ 940 C. The Trusteeship System ...................................... 946 V. Decolonization and Development ................................. 953 A. Decolonization ............................................. 953 B. The Development Discourse .................................. 960 VI. Critically Appraising Modem Trusteeship .......................... 962 A. A Critical Assessment of Statehood and Sovereignty .............. 965 B. The Continuing Pervasiveness of Racism ....................... 967 VII. Toward A Solution ............................................. 971 * Professor of Law, Villanova University School of Law. New York University, B.A. (1977); New York University School of Law, J.D. (1980); London School of Eco- nomics and Political Science, LL.M. (1987). Many thanks are in order. Members of the in- formal Northeast Corridor Collective provided very useful comments on an earlier draft of this article. My colleagues at Villanova University School of Law faculty provided invalu- able assistance at a faculty colloquium where this paper was presented. My good friend and colleague, Maxwell Chibundu took time to furnish extensive and indispensable comments at a critical stage of this project. My profound thanks to all of these colleagues; your assis- tance was pivotal and greatly appreciated. This article began its long life while the author was a Riesenfeld Fellow in Public International Lav at the University of California at Ber- keley. Moreover, it would not have been possible without the generous support of Summer scholarship assistance from Villanova University School of Law. I would like to thank both institutions for their assistance. Finally, as always, I acknowledge the warm and constant support and encouragement of my friends and family. AM U J. INT'L L. & POL'Y [12:6 I. INTRODUCTION A new concept recently entered the international legal and political discourse: that of disintegrating, collapsed, or failed nation-states.' Scholars allege two types of disintegration: the breakup of nation-states into smaller nation-states2 and the implosion of states This article focuses upon the latter situation and specifically examines the contours of this phenomenon within the African context-where scholars most often propose trusteeship as a solution.4 Africa is also the continent I. See COLLAPSED STATES: THE DISINTEGRATION AND RESTORATION OF LEGITMATE AuTHoRrrY (I. William Zartman ed., 1993) [hereinafter COLLAPSED STATES]; Gerald B. Helman & Steven R. Ratner, Saving Failed States, 89 FOREIGN POL'Y 3 (1992); Robert D. Kaplan, The Coming Anarchy, ATLANTIC MONTHLY, Feb. 1994, at 44; Jon H. Sylvester, Sub-Saharan Africa: Economic Stagnation, Political Disintegration and the Specter of Recolonization, 27 LoY. L.A. L. REv. 1299 (1994); William Pfaff, A New Colonialism, 74 FOREiGN AFF. 2 (1995); Ruth Gordon, Some Legal Problems with Trusteeship, 28 CORNELL INT'L L.J. 301 (1995); Jennifer Widner, States and Statelessness in Late Twentieth Century Africa, 124 DAEDALUS 129 (Summer 1995); Paul Johnson, Colonialism'sBack-and Not a Moment Too Soon, N.Y. TIMES, Apr. 18, 1993, at 22; Ali Mazrui, The Message of Rwanda: Recolonize Africa?, NEW PERSP. Q., Fall 1994, at 18; A. Peter Mutharika, The Role of In- ternationalLaw in the Twenty-First Century: An African Perspective, 18 FORDHAM INT'L L.J. 1706, 1709-1711 (1995); Yogesh K. Tyagi, The Concept of HumanitarianIntervention Revisited, 16 MICH. J. INT'L L. 883, 886 (1995); Charles Krauthammer, Rwanda: Ifthe U.N. Can't Help, Ask South Africa, INT'L HERALD TRiB., May 28, 1994; cf Henry Richardson, III, Failed States, Self-Determination, and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations, 10 TEMPLE INT'L & COMP. L.J. 1 (1996). 2. THE WORLD ALMANAC AND BOOK OF FACTS 491 (Robert Famighetti ed., 1996) [hereinafter WORLD ALMANAC] (noting that examples include the break-up of the former Soviet Union into eleven sovereign states: Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tejikstan, Turkmenistan, Ukraine, and Uzbekistan). Disinte- gration may be accompanied by violence and leave the surviving state(s) in a state of war and chaos. The most recent prominent example of a violent scenario is the break-up of the former Yugoslavia into the states of Bosnia, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. On the African continent, the only example of this type of disintegration is Eritrea and Ethiopia. Eritrea gained independence from Ethiopia after a prolonged and bloody civil war against the Emperor and the then Marxists. See I. William Zartman, Introduction: Posing the Problem of State Collapse, in COLLAPSED STATES, supra note 1, at 3. 3. See Peter Vale, Engaging the World's Marginalized and Promoting Global Change: Challengesfor the United Nations at Fifty, 36 HARV. INT'L L.J. 283, 288 (1995). Professor Vale notes a quiescence in both theoretical and practical debates on the systematic break-down of the nation-state. See id. Vale suggests that this silence "reveals more about the dominant discourses in international relations than it does about the state of the world." Id. Thus, he urges, it is crucial that we understand the declining confidence in state struc- tures, and that we question concepts such as democracy, nations, sovereignty, and capital- ism which despite their tangible manifestations, are only human constructs subject to change. See id. Vale believes that "world orders can be overturned." Id. at 288. 4. See Pfaff, supra note 1, at 4; Johnson, supra note 1, at 22; Mazrui, supra note 1, at 18. Dr. Mazrui proposes African controlled trusteeships with the Organization of African Unity, larger African states, or some regional African group acting as the trustee. See id. 1997] SAVING FAILED STATES where failure or collapse is alleged most often.' An expanding number of African governments face increasing difficulties per- forming basic governmental functions and delivering essential services to their populations, resulting in severe societal dislocations and inordinate human misery Commentators, often under the banner of humanitarian intervention, beseech the international community, and more specifically the U.N., to restore crumbling governmental and civil structures.7 The U.N. Security Council has sponsored com- Helman & Ratner propose "governance assistance" for states that are failing, but not yet failed. Helman & Ratner, supra note 1, at 13. Georgia, Zaire, and selected states in Africa and Asia would be eligible for this type of assistance. See id The authors cite Bosnia, Cam- bodia, Liberia, and Somalia as states with governmental structures overwhelmed by circum- stances and, therefore, candidates for trusteeship. See id at 14-15. 5. States with questionable viability include Zaire, Nigeria, Burundi, Sudan, Angola, Mozambique, Ethiopia, Kenya, Cameroon, Sierra Leone, Togo, Algeria and Chad. Makau wa Mutua, Putting Humply Dumply Back Together Again. The Dilemma of the Post- ColonialAfrican State, 21 BROoK. J. INT'L L. 505 (1995); Zartman. supra note 2, at I (cit- ing NORMA YOFFEE & GEORGE L. CO'?GuL, THE COLLAPSE OF ANCIENT STATES AND CIVILIZATIONS (1988) and J. A. TAumNER, THE COLLAPSE OF COMPLEX SOCIETIES (1988)). The authors describe Rwanda, Somalia, and Liberia as "failed" or "collapsed," while other commentators note that at least ten other African nations are on the brink of collapse. While these commentators often cite or include lists of states they believe have failed or are in the process of failing, many do not pinpoint why they consider these particular states poten- tially unviable. See, e.g., Helman & Ratner, supra note I. Specific countries are discussed in some detail in COLLAPSED STATES, supra note 1 (identifying Angola, Mozambique, Su- dan, Zaire, Burundi, and Algeria as potentially collapsed states); Zartman, supra note I, at 3-5 (classifying Ethiopia, Somalia, Liberia and Rwanda as collapsed states