University of Chicago Law Review

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This Article seeks to challenge a basic assumption of international law and policy, arguing that the existing state-based international legal 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. Unsurprisingly, 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 mechanisms could be developed to overcome democratic deficits associated with the lack of formal legal statehood as currently understood by international law.