Governance in Areas of Limited Stateboocl

Introduction and OJ?crPin 1'

Urv;vl',.:,iJ
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L_

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T!-IO.MAS RISSE

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---- -

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----1

THE

TWENTY-FIRST

CENTURY,

IT

IS

BECOivllNG

increasingly clear that conventional modes of political steering; by

nation-states ;u1d int:crnation~l regulations are not effectively dealing
with global chaLlenges such as environmental problems, humanitarian
catastrophes, and new security tl1reats. 1 This is one of the reasons governance
h:ts become such a central topic of research within the social sciences,
focusing in particular on nonstate actors that parricipatc in rule ndcing
and implementation. There is wide agreement thctt: governance is supp('Sccl
to achieve certain st<mdards in the areas of ndc and authority (llm:rdmji-),
such as human rights, democracy, and the rule or law, as wcU as to provide
common goods such as security, welfare, and <l dean environment.
Yet the governance discourse remains centered on an "ideal type" of m< >dern statebood--,with l'i.dl internal and cxten1<1l sovereignty, a legitimate 1110nopoly on tl1c usc or f(xce, and checks and balances that constrain political
rule and authority. Similarly, tl1c "global govcrn;mcc" dcb~1te in international
relations, while lonrsing on "governance without government" and the rise
of private authority in world politics (e.g., Cutler ct <11. 1999; O'Brien ct a!.
2ooo; Hall and Bierstekcr 2002; Graudc and Pauly ?.OO_i), is b~1scd on the assumption that functioning states arc capable of implementing and enforcing

functioning st:ttc hut have tc' provide jirru:tionu!

l~lubal norms and rules. Even the discourse on failed, hilin~, and flagile sL1Lcs

S!?l__t:I1~Jo_ct(s-;~~~~~;~~~~- i;),

:c~:~s~~~! s~~t<: btljldi_~;~i :is_tT1~~ii1;:;~;-;-~~~~~~i) f(Jr cs~~l;iis!;iJ~gc;l:~~~~:l~i~~g 1 )(J~

litical and socd order (sec, e.g., Rotber~
---

---

- - - --

--

<...-

200i;

'-

Rothcrv

200+

<::'1

-0 t:( ~j')~~~~~i:!~-~-, Zti~-;cr:;;:;:.;1s ~;( ;,1;; Jlit;-~j- -_~ratclluod ,';f~ ~;m devc:l~~ping and
tr,;mi.no.li L:l ~ IJllries to failing ami G1ilcd states intod:1y's conflict 7nnes and-J;i-st<Jric:{lly -: iri ~:ol(mi:ll societies. \rc..1o of lim ilt:L sL.lLcbond .uJ th e l':l J':lCit1 1wj;lJillCtllCJ_ii- :1iif.l ciiJ(.liCc -Cci1 Lr.1l dcL:is i ~;~~~~ ,~;;j ,; 111;11~c;J ;c;j~-;,;1 t];7 ~;sc

, ,f ,;,ccc. While their "inrernationai sovereignty," that is, recognitio11 bv the

- -~J 'his ..Gouk

lacl~ ;,d;)l~;cs~i~--~o~,~~~ign~~.~,: ~;;

--

- .... - - _,..

SUitS from the assumption that "limited statehood" is not a

to

--

<...

be mc::rcomc by the relentless forces of economic

111d political modernization in an era of globalization. Rather, we suggest

th:11 "linl_!~~:l~l-~~~:1~?(~~1~' isherc_t_o sEy-even in SO-ClUed vVestern ;]ll(llllndcrn societies ---and that governance research has to take this fundamelllal

' -- --- ---- -- --

"

-- ------ -----

- ..... ..

- ----

------

g< li'CTrLIIILl' scrvicc~s~~t';_l_!_~')_l~:.!.!_l_l sccuri1y l_l_l_jl_l:l_~!~~-~~}l~J~i~y (sc~-c~i~~;-,

~" byc~:l~r~1~;J.s1ange , L:1chv1g .111d 1\udoiC Schncckencr, :111d BnJ/',us). Bi1t
, . it is :1lso the usc in manv other weak. SL11es lint the internatiurJJI cummunit v

co-[~o: crll~ !Fi~~u[il~--iljc-l'~;J:'i:~~<liJof nlllccl.ive -gr,ods ;1n:J s:-r~1ccs

L

tcrs by Liese and Beishcim, and Emlcrkin ct :1!.).

f' _ , 1

(.. .,'

(sec-chclJ'~-c c ,

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c:--

This chaprer hegins by introducing the book's key cunceprs such .1s lim andBOPCmiWCC.

I rhen discuss some conceptual issues that arise

when govern:mcc is ;JI)Jllicd lo ~1rc:1s ol limited statehood. Drawing on 1hc

contributions w rhis volume, 1he next section highlights the contrihutiun <'f
nonsLHc ;Kiors in the provision of govcrn;mce in Jrcas oflimitcd statehood .
The chapter concludes by poiming lo the "multilevel" fCaturcs ofgovcrmmc
in areas of limited statehood , in partiu1iar the role of cxtern;d clclcns in the
prmision of collective goods ;md services.

Th~bc:;ok then asks how cllcctivc and lcgitimaie..

gc;;~ ~:;1:111ce is po;~it~lc und~-c:;;nditions of limited statehood and h<~w secu~.

riry and other collective goods cJn be provided under these circums1ances.
~--;:h~e authors uf 111is -volume invest_igatc tl1e governance Eroblematic in
arc1s of' limited statehood flom a_~aric_l)' of disciplinary perspectives, includ-

CorKeptu~ll ClarificaticJilS

b~e1.scd IOW<lrd modern devclopnl nation-states. Mnrcovcr, if we confiout the:

ccntr:Jitcncts of the governance debate with the empirical reality ofhis1oriul

or c<mtcmpor;1r)' ;~rc:1s of!imitcd statehood, serious conceptual ami theorcticd problems arise. 1f one of the key concepts of modem social sciences is not
.IJ'I 'I icc~ hie I< l t1\'o- tJ;;:Js ofthe"J!]t cri1Ju~-l;l;l(coi-ilii'i-tllllt);,-~~Z'G~~: -noi <mly
1i1cc )~!iLal _r ~1?~~:.21Zl~<iE~~t~f~~~ ~~~i;; en t! yp~liiii~a I_:~nL{r~a~t:i ~~~

~;~~~~s.

Thc__._l~lt\~l_l_I~J'r<_Jll:_ tl~~ f(;]lo\~i!lt;_ ~~ssti_l2lE~ions: First, governance in arns

oiiiiJ~_i_t__L~L~t-~::_J~~~<ld r:::sts_ ~JII t]1e systematic inv~llvcm~;~;;Jf JJOI~~t:~tc :~ctors-
;llld on nunhicrarchicll modes of political steering, including barg;1ininp
---- ------ -- ~ -~ - - ---

<.. .-

-~~~~~~~:~-~~~:112~_:;l:C<ll2lJ'::riti.on (sec particuhrly chapters by Chojnacki

.uhl l)r;movir, Liese and Bcishcim, lkiJ7.el et :~!., and Endcrlcin cl a!.). Yet
these mmks ofgovcm.mcc do 11ot comp!rmmt hierarchical slecring by a well - --------~----- - -- --------------:=.-: --- ---:::::-....::~-:= -

--------- -

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..- ~_~ :-tJJ ..:.

ii

Wlml Is [,ilnitrd Statchoori:!

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( Plw.-'
. ) . ~ J\ r

inL~ l'ulii~cal science, history, and law. From a theoretical perspective, the vol-

llllll' ch.1llcngcs
the co11ventional wisdom of the g'ovcrnancc debate as beinob
~

e cr.! luctl r v1t s

~0

shared s< :':~J_c_i_ ):il:t.!Y This is 1:1irl)' olwiuus in colonial goveriiJnce a.s well as i11 d eue~
rf 'q ------- ---- - ~ ~ - - .
,,
.
.
.
.
, 1 modern
l)rnlL'ctor;Jtcs whnc 111tcr11:1tlonJl ;md tTansn;11JOn;1l actors prov1dc: ~..::..e.~G~

- - ~ - - - - --- - ---

ll)I]Liil:ron Into account.

F v l'' (~ ! () ( ._i

'0

ited stntc/;ood

histnncal ;Jccident or some deplorable deficit of most Third World and transit ion countries that has

~--J---- --- --

Jinks 1hc local with national , n:gion ;ll, :mel global levels :llld is h;1snl o11

Fr"m :1 gluhal c1s well as a historical pcrsptnivc, howcvn, the modem

ll.lllmlSLltC \s~[J]i' (;xcc'l~li'(~;--~,{J;cr ' !h:;n~-~,;-e ru_lc. C)lltsiclc the -dL'VCloped

~~~e

- - - -- --- ----------------------

0'1tact, ~hey
Step lien Krasner's ter;ns (Krasner ;YY9 ).

devclorJcd

ocwcnuncc in :11Tas of' limited statehood is "multilevel f~U\'crmncc;' whicl1

Schncdcncr

~cK~I; lkisheim c1ml Schuppert 2007).

i~~-7;~-;iioJ~;(~;;;;;:;;;;;;;~~: i~ st~ill

crp!il'r;l~;zt:)'to

Schuppcrt .u-Jd Lad\\:ig and R: 1dolf). Sccuml,

f) '

.
/

Our LOIKqlt ol "limited SL1lclwml" requires chrific:nion-' In p.lrlicuLu, 11

Jll'nls tu he s1r1c1ly distinguished fiom the w;1y in which IJotiLJno of"fiagik,"
"l;1iling;' or "L1ilcd" s1:1tehood :11-c used in the litcrarmc. Mo:;t typologies 111
1he liLcJ~~=~~:: ancl d;ll;lscts on fi;~gile SLt!cs, "st:1tcs

:11

risk," ;~-~~j-;,~~-;;;~:\;;:~1

J___:_J~lJ~nc!lile_ <!ri_cJJLllion tow;ml highly developed ami dcmocr:~ti-~ ;t:~tchuod

:md, thus, tow:1rd the Western model (e.g., Rutbcrg

2-0o);

Rolbcrg ~~oo-1 ).

'J~I~c~J_c:_J1_~~I2.1_~~~' -~-~~s_tJ_JI~' !he ckmonatic ;1J1cl c_;:l~.!.~~i~<;_t_.~Lllc gover11ed by the

rule rl law (Leibfried and Ziirn 2001). This is Jlrohlcrnatic on bo1h norm;1tive ;{~-zf analytical grounds. lt__ i':_~1cJ~12auvclv q~~~tJO~JalJic hcc~usc it lc\T.il s

~~.~:occntrism :!IlL~ .1 hicJs 1ow.1rd \\'estern concepts ;ts if st:1tchood eqtnb

\Vestnn liberal stalchood cmd 111;1tkl't economy. VVc might find 1hc politicil
and ('<'(JIIOlllil' sy~~--;-;f~\opi~\ Rcp-tlhll'c or ( :hll];l ;md Ru;sia mor.illv
qucsl i<mahlc,

!nit they cnLunlv ,onstitutc st:1tcS: Coni(Jti~I_IF S.!:_;lt::lllJ~ J: I

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CJ

c:overnan ce in Areas of Limir e.J Statehood

.1

to mc.c ~i. f D< E.Ll fC : ~E. <.: E';,.;. (V c~i clo2 t I & 1 on S
, ir.h:.J:~~~~~~!~r :v~s_t~t:t~. :~m~c_t;~a:~_?!!1?- _is _~1a!yti_ca]Jxproblema~i_c, too, bercsu.:ict~d along va rious dimensions: ( 1) ~.~J.S~~ial, that is,_ parts of a coumry's
ai:iSe it tends to conf11Se dcfimtJ~)[1-~ ts~::5:s and__resea~c!1_ suestJ?J:s. If '2'~tern tonal spaces; (2) ~cc~~l-~, that IS, With regard to spwfic policy areas; (3)
~cfine stat~~ -~; -p01li:{(3fen.tl.ucs- cl1~t provide all kind~ c:fscrvices and public
;:2.~i~l, that is, with regai7rf0 speci fic parts of the population; and ( 4 ) r_e_J21-

~~J-~ds, st;~h as scni.r!ty, ~~ic rule of law, _welfare, and a clean environment,

IJ:m~. I~ follows ~~at t~~c. ?PO~~- of ''limited !tatehood'~~:_ot "unlimited"

b~y, if not m~s_:::~t_<l~~~ - !:~~~e H~tt:~11~tlo~1a_~ sys_~eJn d()n~tgua\Ify as such.

oreover, such conceptualJZatwns of statehood, whJCh arc more than com1
~
i )iTic-llrC1~atu.re -611-failing aiia-railed states,' ?bscure wl1at_"':~. C<?-J~~ider

~ut co~1sohdatcd statehood, thatJs,th~-~e areas of a country 111 wluch the

state enJoys the monopoly over the means ofvwlcnce and the abii1ty to malce

-) ov

and .:_r:_~<:_rce ccntra.ldccisions. Thinking in terms of configurations of limited

'S ~(C \' t:'

the most relevant research gucstion: Who goven1S _for ~:hc:n:_, and how are I!
l-:---_-1ance services provided under conditions ofwealr statehood?
i,

st-;tehood also implies thinking in degrees of limited statehood rather than

using the term in a dichotomous sense.
This conceptualization allows distinguishing among quite dilkrent con-

1011 1

g~L

.....

_, . ..

Thus, we have delibe!:at~lY._ _?.p~e-~ for a ~:~th_er_ nar~()'\I . C:~nccpt of state\10od. wJ-;ii~;~~' l:;i:i;~;:-closcly ~-a~ _V.~eb~r's conccptuali_zation of statehood
[as
.. ~;;
. ;;sr.li:i:itioiialiicd ,:iiJe stmcture. with. the ability
. . . .to
. .. rule .authoritatively
. .
1

!(r{c;.:,~ci;nft-~JC.rbaiid) ai1d ~~~e~~~:~:~~~~- =~-I::rol tl~e~1~e~:s 0~ _violct1Ce (Ge~pa./tmonopol, cf Weber J92T/rg8o; on statehood in general sec J3enz

2001;

lschuppert 2009 ).l While n<:~t~~-g?.v_~~:n~_J~i~rai~~I.:ic~}y_alJt~1e time, states at

!least possess d~e _a~ili~ ~~..:_U.~h?ri~~tiv~~:~~e:..~:p~~n_~~1_l::__ :U_l_d_ e~~f?.~~e- c_en,rral decisions for a collectivity. Inothcrworlis, states l:()l1ll11a[ld what Stephen
j K~;Zr call~ "aOincs~c}3!i,ercigi~l:):;' _~1~t is, "tl1e f.orm_al organizatio~1 of po-

j litical -~utbori~y;i-tEin the state andtl~c ~bi_lity of public authorities to cxerc~c

Ieffective controfw.ithi;~ i:l~c-~o.r~~:.~?~~~1e}:~~~v:~Y?~i~y" (1999, 4 ). This under, sta~~(ij"1;g-a-n0\vs 1is-toStiTcdy distinguish between statehood as an institutional

structure of authority and the kind of governance it provides. The latter is an

J definitional question-for example, control OVCr the meaJJS of
cmpu .1ca)not

violence is part of the definition. l:"hc_::~~~~~i_s . ~~1_()nop_:::l)'_()"~~:. tJ:e u_sc afforce

actually provides security fo_!:'~~<:_c~ti_~e~s_a~ a_p\J~Iic__g()o~l and is irrespective of

one's racc~gcilaCr;o[]Uilslilp bec~~-~c~_:':' :_n?PJ.0~~\.9.~<:_Stion. Whether a state's
;z;iit:y is J'C1i1o(r;ii1ciil.a 50l"ii1d by human rights also concerns empirical issues
1
that should not be conf11scd wrth dclimuonal ones.

,Ji\''' ' '

U.

r cu~

that c(;fi;;;n-;reas of limited statcl;-l; od. Moreover, and cxccp--;for failed

state~-,

"limited statehood" usually docs not~i1t:ai~1 for a st~te a~ ~~b~~~-b~t; i1~ "~;~~-;;:~;
th;\t_l_s,

i:~_t::.i tori ~!-~_r_ functional ~~J-;~-;-,~Tcl~cl;;~;~~-fu;;~~~~-; ~g-~t~sit;-

which the latter have lost their ability to govern. While the Pakistani govern-

n~Ci1r;lor example, enjoys a monopoly over the usc of force in many parts of
its territory, the so-called tribal areas in the country's northwest are beyond the
control oftl1c central government and, thus, areas oflimited statehood.
I~ also follows that limited statehood is by no means confined to the de-

cmtratcs mostl y 0~1 -~a~5S. i~1- :~'11 i ~]_: }i'~_1i~,:I?:~~eJ2l)~<:!_~~.!!L~'.:.~~__<:'_2ito_Jj~.:

sectoral, or social dimension extends over sustai ned periods of time. For ex-

Jegftirnatc i]JOnopoly . (?':c~:. :!l~u~:l~~~-~s :>_f~j~_:~~C.::.~~1ckin~2..~t lea~~~npoto enforce mlcs or to control the means of violence can be

Ofl

ho~~ ~-s_tl-:;_~)~:>~ ;~-p.1;:ti<:~iy co;Jtt:? l_ tl_l~ ins~r~;~~e.nrs offorce and are only partially able to enforce dccisions, _ n}_ai~1!y _lor reasonsof insufficient political and
admi;~i~~;;tiv~ ~,;,~a~i~ics.~~;;-dM~;;, ~;1 the one hand, and Somalia
and Sudan, on the other, 'COi1stlnlte opposite ~nds of:-;_-~;;;t~~;~~;;;- -~t:-~~

failed state Somalia still commands international sovereignty), it is their do-

! ~~~~.!~ 'The abiliiy

f'! prftsed

2004). Failed states sucl~~~o_r:1~-~ c?_I11.P~i~ ...

only a small percentage of tl1e world's areas of limited statehood. Most dcvclo.pi~1g ;~;~Ct~:~;;-~;ti~~-~tat-~~:-rc;;:~~~~liprc,-;;J;coi11pass areas of limited s~ate

the m ean. o r Yio lcnce for a short period of time. However, this book C0!_1_:._

lack the ability to implement and enforce rules and decisions or in which the

\flOOC l)

os

Scluippcrt-;:c;c;:;;sd{n~~k~1~er

limit~d stat:diOo(JSttlJ"bc:rcJng tO- lllti::i-i'Jai:i()nally recog1iicd St<ltCS (even the

concern those parts of a country in which central authorities (governments)

Ill

~e lopeq

figurations oflimited statehood. As argued earlier, "limited statehood" is not

veloping world. For example, New Orleans ng~~-~!_t~~!i~~~~~i~~tl_e _Ka~nna

in 2005 constiruted an area of limitnl statehood in the sense that U.S. au-

mestic sovereignty that is severely circumscribed. Areas oflimited statehood

.I

confined to failin g and failed statcs that havcag_11_Ll_t_lg,;;.t _tl)c_j!Qi]it:y ~()_g()y~r11 .

a~-;-d w - co!Jti:orrF!c]i teli1il:)i~yTR.:ot:T-lerg 2003; Rotbcrg 2004; Bcisheim and

If statehood is defined by th~~-tl~P?}.L?.:::~L.~~~ means __<.?[_~~~~C11~: _?r

the ability tor1iTc anac;l"rorc~ central politica! .~!_e~_i_~~J~:s2 ..::'~_<:::1!!.. 1~~\~_5l~~ ..~
linc mo~z-;;:CC!SCI),-\\T1af"fi1Iiii:c3 -s r:irchood" means. In short, while areas of

"u f

thoriti es w.cr ' uu<tble to enfb rce decisions and to upllold the monopoly over

;~~~pi~:thc d~~-pt-~~- by Chojnacki and Branovic on markets of violence deals

empirically with territorially and socially defined areas of limited statehood
in mostly sub-Saharan Africa, where the state monopoly over the usc of force
is systematically lacking. The chapter by Liese and Bei shci m fo cuses on areas

.~ .

(,

lntruduct iun JJH.lO\'crview

or limit ed statehood in th e developing world according to their territorial,

V

scct"oral, and social dimmsions. The chapt er on South Afri ca by Borzel et aJ.
concentrates on policy senors in wh ich th e South African state docs not have
the capac ity to implement and enforce its ow n laws.
Moreover, if we conceptualize limited statehood in such a configurative
way, it becomes clear that areas oflimited statehood arc an almost ubiquitous
phmomcnon in the contcmpo~;.1l)' .i ntcrn:nional system and also in historical
<"Omparison (sec the chapter by Conrad ami Stange). After all , the sta te m o nopoly over rhe means of violence has only been
1.10

:~roundfor a littk~;,-;;-1~~

years. /vtost contemporary states conrain "areas of limited statehood" in

~ that central auth orities do not control the entire territory, d~

I

I
I

co mpletely enjoy the mon opoly over the means of violence, or h ave limited
c~j)_aciti~~- to enforce and implement deci s i on ~, at least i~~~~J?C::.P~~!~cy _a~:~:~
ur with regard to large parts of the popubtion. This is wh at Somalia, Brazil ,
.~ n(!Indoncsia but abo the People's Republic of C hina have in common ~md

share with modern protectorates such as Afghanistan, Kosovo, or Hosnia11erzegovi n ~l-- i J~enu ~i~:J_':~y__t:ecog!~izeL! ~t~1_l_es__tbi\Ilack 5'Y~slj2)nli,tn

SUI '

c;rcignty" in the sense tlut ex tc_r.!_!!![ actors j'Ul.-l?.~.tts ofJ:bcir territ~~~i-~

so~ne p o li cj~

;1

The following m~p presents a graphical description of the pheno men o n.

Jr uses

' . ...

(Krasn er 1999 ).

co mbin~tion

of two indicators of the 13crtelsmann Transfo rmati o n

Sl-cL\-~.1 .
fAll."''()

Lndcx (BTl) measurin g deg rees of, first, th e state mo nopo ly ove r the m eans
of violence, and , second, basic administrative structures+ The countri es

-~
FAl~ l

NC:r

marked in w hite arc fully co nsolid ated states located in the Western world ,
;Js well as

:1

handful of others, such as C hile. On the opposite end of th e

spectrum , we find twenty-nine failed (marked in black) or fragile (m arked in

LLirk gray) co untri es, mostl y in s ub -Sa har~n Afiica. The re mainin g coumri es

f-~i.-)'

(marked in gray) -- the vast majority of states in th e contemporat)' interna - CON .SO~ i OM!!!)
tiona! system-conta in areas o f limited statehood in tl1c se nse ddin cd earlier.
Note th ;lt about Ro percen t of the world's popula tio n lives in or is exposed
to such areas oflimitcd srarchoo d.

nor

These data ha ve se riou s comeq uences f(Jr the way in which we think abo ut:

c.t{ W C'-(j..\

st.Hchood in general. \>\Th ;Jt: if the modern, developed , and sove rei gn nati oll SLlte turns om ro be a hi sto rical excepti on in th e context of this diversity' of
:trC.lS of limited sr;Hehood ? b-en in Europe, rhc birthplace
12om!, nation -states were

or mod ern state-

but 1
au o rc c<l~~
(j

l'c

o1Jy able to ful f)l establi sh the monopol y ove r the

JJSCof force in the nineteenth century (Reinhard 2007)._And the gloh:lli,,ation

C'-'-c c. r c ? I 'll( cc rr.t 1

I

r.

<S"C()...I.(!,

r,.
X lntrodllction J!H.t Overview

<3 ovcrnancc in A1cas of Limited Sta tehood

of sovereign statehood as the dominant featu re of.tl1e contemporary internatio;~l~;;:;i~~~]);-rook -pl-a-ce_i_n tl71_c_I_9-:6-o-s,-a-s_a_l_cs:-::ur.lt,..,o,..,t'""'d,-e''cotoillza:tlo!i
""
~ --

ranging ti01n pa rticul ar colonial hi stories, resource constraints, failures of

nation building, histories of internal warfare, and the like. Exploring these
root causes wo uld require a different book. Rather, we take areas of limi ted
statehood as our starting point and then ask how effective and legitimate
governance is possible under these circumsta nces.

- y;:!-tJ;;;;~Id today, ;;,-an imer;1ational community ofstates, is largely based

on the fiction that it is populated by fuU y consolidated states. Internat_ional }~~---
embodies the idea of sovereign nation-states, which the international com-

111~;;-i-L)~ ;;~;;~;~s--;r~ f~~c~ioning s~a~~s .ti~~~- ~~mma;~L1- '~~ffe-ctiv~ ~ucl~;Jri ty''

(-Jver rhC!rtcmt0;:!es

Cc._l\, ~'d

fr
;' v'l t en.. (:.,..,
\:i o11
C;1

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I
1

(secChapt:~J:sby_S_ch~i;PC.;t~1-d L;d~vig ~~dRt;dolf). The

i ~naJj,rohibi ti on on intcr\'cning iu the internal affairs of sovcrc1gn

st:ltcs assumeS'! hat rhc;e states ! ~ave tl1e f ull ~pacity to conduct tl1~r own do-:.
mc;;tic affa i~ Ironically, many developing countries where limited statehood
~~~itu;es part~daily experience of the citizens firmly insist on their full
rights as sovereign states and arc ad amantly opposed to any intervention in

These considerations lead to the governance problems in areas of limited

tTicD-T;;tt;:nal affairs. Moreover, intcrn~?2:<:1law ~~ th_:J_c_g_~':0~~<::'l25~f~r~~J5L

l'o~i cs have increasingly embedded states in a net ofkg!ll an<;! other hit.1_Qillg.
o blig~tion s in aunost every policy area (Goldstein et al. 2ooo ; Zangl and Zi.im
~~-cc-cha-p-te-rb-)' G;hvig_a_n_d-~dolf in this volume). Yet legali zation as-

political, social, or economic order.~~-~<:.. '~'<:akl!css d oc~ ~1o.~si 1!2~ Iy_ tr:n:sLl.t~
to the absence ofJ~?JJ.!L<:.?L<~rcjcr, ru lc making, or the provision ofbasic serv i ~~~~Lil;,itZd statehood does not mean an ~rcl~y it~ a Hobbc~ia11 .sense. rn
fact, we ~vc;~-fi;;~ftaTiecTstatcs 5l1C:ri;-;;-s(),:n;rra ,\; h-e;~- Ti;;-Jt~d' ~t:;;r~Eood is

GOJ'ernnncc and Limited Strrtchood

statehood. In this context, this book advances a major propositi o n, namely,

tha t limited statehood docs n o_t:_~q';l_~l..!.b~ ab~e)l~C:_ Qf_gQY!;J!lAD~L.le_t_3.\~!.~~5:.

-I sumes that states arc fully capable of implementing and enforcing the law.

all-pervasive but where govern ance takes place regularly and collecti ve goods

lvlost international donor agencies and most international state-building

C\.LK' ~'' R I and democratization programs-from the vVorld Ban k to the European
~
: r, Union and the United States- also presuppose that the modern \iVestern
iV~rev nc, t\ C.1~J
. -state IS
. the moe:! d cror " gooLi governance , (Magen ct aI . 2009 ). U n. 1 natlon
(l:I ~W\L i t-t~
! dcrneath these programs and strategies is the ass umption of modernization
1
e~
theory that the modern st'ate comes as a package consisting of .an cfkctivc
$' rcv\-1::.

are provided (Mcnkhaus 2oo6/2007).

Before I proceed, however, the concept of govern<mce used in this book
mu st be clari fied. In its__:~l_O~~-g.cneral_vcrsion, govern ance refers to all modes
of coor~~ ~2~~-i_ng so_cial action in human society. Williamson, 1(1r example,
di~~ii:g::'ishc~l between .g?~rcr;1ancc by markets and governance by hierarchy
(i.e ., the state); later scholars add ed governan ce by networks to this list (e. g.,

l! (

m:, u~
il

WiiJiamSCii1iY7s; lU10dcs 1997; Kooiman 1993). 1-lo::'_'_e_,~e~-, ~!~_ tu~?.c.r:~t~J-~ d

ing that i ~lcJ:tilics _gcwen1a1:~c wjth a~X l~n d o~ s~K ial ordct:~~~g ap pears to be
too broad.
G ovPj r'({ JI ~f
As a result, this book employs a somewhat na:rmvcr COJ.Kep t that is linked
to politic; .-J)y_goFernm;cc; we . mc:m in this book the various institutionaliz ed modes of socinJ cqordina.tirm to pmduce and implement collcctiFe0r bindi71fJ
.
rules, rn' to pnwide wllcctiJJc g oods. This conceptualization f(>llows cl osely the
understandi ng of governan ce th at is widesp read within the social sciences ~ cu Pr (\ 1Y'~ n r
0 --- (e.g., Mayntz 2004-, 20o8; Kohler-Koch !998; Benz 2004-a; Sclmppert 200 5;
Sch uppert and Zi.irn 2008). Governance consists of both structu ral ("in st:itlltionalizecl ") and process dim ensions (" modes of social coo rdina tion").
Acco rdingly, governance covers steering by the state ("governance _l1y g<wc!nmcm "), governance: -'~i ~;~zz;z;l;~~;;t:T;,~_. n:~n~xl~s_.~>f_ pt!blic an~l priv~Hc actors ("g;ov_er~1:u1~c wi_th__ govc mmen_t")_,a ,> 1\1~ 1! _as _rule: . ~!1il_lsi_J_lg J:>y__l_l_~!l_:'it?_!e
~Kto rs or scl f~ regul ati.on by ci\l!_ls ociety ("~ovcrnancc w i ~ hout government";

government, the rule of bw, human rights, democracy, market economy,

i Y\tE'fUQ..wnc; <1 and some degree of social well;1re. This "govcrmnce package" constitutes a

'1:
'.
~l ,

;~ eecl eq world cultural script (Meyer 1987) and is applied to developing and transi(ne~ itO tion coumrics as well as to failing and failed states. "State building" is part of

i V\

this governance 1)ackagc tl1at the international com;llllllJty tries to institute

, bew.G<K
~

in f~iling or i:1ilcd states (sec chapters by Schneckcncr a11d Brozus). But the
the institutionalization df~y

.i.

1u

, ~'f.\ c(..(.q
1:

S ~Je hcv)

i goa l of these measures is always the same:

!I

: nor tv.

consolidated, democratic, Western-style mtion-statcs.

In short, this volume challenges central ass ump tions of both development

i,id'-' (CA r"-G''J Studies and development policies, namely, tha t fully COnsolidated Statehood
!

to

has to be the ya rdstick agamst wh1ch most ex1stmg states arc measured.
c.o V' u .v cr
~ R:1ther, we assu me tl1 at areas of limited statehood constitute much of the
!' h ou;l i: empirica l context 111

.
. t I1c contemporary Jntcrna.
most exJstmg
states, bo tl1 u1
1

,,

cloiYle.:>n

<(f.. c.c'r'

<..

i tiona! system and from a historica l perspective. But this volume is not about
explori ng rhe causes uf lim ited statehood . ln r:1ct, th ere arc multiple causes

'Sc . ' '

o.. b ctl(lc\o.>< ;\J
c:.. c1a. ohnC. . .

t-o

(c..t.\lin.J

<A ll

hop t2.

, , \,:,c. 1
eJ

i<VVlP aP f"\ r 1 r

f
C:::t

J""

-&n:.<..te.- y r<>v, c\t",J,

CLU..c \

l ) f' f;., t' U t-

11

ri 8hr.S /St' f"-J iCE'..)

; '('\ ~Ptt 1t">l l ~' , ... , _

etA..< c\
n ... r.

r "'\ 1

J:' r
: ~ !rl

~-

I( 1

l l l l l ~ l l l l l \. I 1 ~1t I

<ll i \. 1 \..' ' l l ' II...

Co\'lTI1;1JKC

,J JlcJl7, 2oo+a; Czcmpicl and Rosenau

1 99 ~)- Covcrn;liKC is supposed

to

1992;

Cr,tndc and Pauly

2005;

i11/\n.:as uf

Lilllitcd Sl<ltchoud

11

stckc r 2002 ). Uuw~~:.'> <1~ the chapter by Conrad and .Stange demonstrates,
these "new" ni(;dcs ul governance arc by no meam specific to the contcmporai-)i'li1tc ni-ation ~ll systent. rhc colon i~~---;;r;r~:--;:-~;~~~lj~~ ~~; ~~~; ;r~;~~ll-;1 1

Z L'trn

provide colkcrivcly binding rul es as well

as collective goods. 5
The modern (VVestcrn) nation-state, thus, constitutes a governance struc-

area ofTIITilt<:~T statehood as we understand it in this vo ilillie-;--~~~- ;,---;~estliu>f

wrc. First, it provides a strucrure of rule and authority, a system of political

1\;j;t(i'\-governancc w o k place through colonial rulers ("states''), transnational

and social institutions ro generate and to irnplcmelll' aurho ril'ative political

''public-private" c_<:_~_~~1ies (e.g., the Hudson Bay Coni'pan y in N.<);th AjllCI.--:ica -cJt~- tl;c: J~;;~~nclia Comp;tn y in Asia),,:md loCJI

decisions. Today, democracy and the rule of law belong to the generally accepted norms of these institutions for atlthorirativc rule making. Second, the
Western nation-state has the task to protect the internal ami c.xrcrml scetl-

\ fc, f '-' I eli S mo

~~~~.

"privatc'~-~~to! :;_ :lJ~Il___;~.s ,.

\C.\ cl':. bt: ,,c c~l' l. c., "-'-' c..._,-{"'c. ...)

(C\Jvc'--\ :

nc e 0

Covcma1 1ce as a process entails two dimensions : acrors and modes of co-

rity of it s citi~ecns. The monopoly over the means or violence is supposed to

d<; just th<lt. Finally, the rendering of public services is part of the cl;tssical

ordin<lting social action. Various rombinal'ions of state ami n o t v~!::~2:_1_c~~

"govcr~~'' in :1reas of lim~te~l s t;\tchom~~Th ese ca n be public-private partner
sh ips (sec Sch;ifcrholfet ,J. 200 <J, also chapter by Liese and 1\cisheitll in this

responsibilities of the stare, from the creation of economic stabi lity and the
vmrantce of minimal social security to public health, education, and, tod ay,
;~lC 111,1in tcn,uKe :md th creation of a clea n enr iw nmcnt. fn sho rt, the mod -_...

(G >1 -

.f--e.t. A. \. r..:.n:{.-IN< ''-')

c-.'J..

VQT;;';ne) in which nation al govcrnmcnrs, intcrnarional (interstate) organiz.a~ "" ,) t~

rions, as ;;:i'! ~~ ( t~~~tltit;,;;i;~~..J)'fi-;:-l~~~-;7;~q-;-;:;tcrmtional) n~g~-;-~ct~e!1r:ii l ( '~c,J
~Hgan i za ric~;~-~--;:o -govcm. But govc rna~1~e ca t~--;T~zl- hc pr;,;i ci~J[~;- ri;~-~"Z::fi~ l 1""-1-

ern Wesrcnu1at ion -swe provid es )!,0.\'CTnancc in the ,lreas of rul c--;:;;~ IZi ~~:.l;lJ .

Tt-l. (:} v..

~;;-1;;;.~:~~c~r: ~;71tT;C:~~;;-ha~;-d , and collect ive good ~ such .1s-sccuri ty, 11 cli:u'C,

~ --

ami ,1 clc.1n environment, on the other. VVhilc this_~atiOJ~~tat~ is _'::!:.~~~c!:_

ing a prof()llnd transformation (Leibfried and Zi.irn 2005; Hurrclmann ct
al ~2oo7 ):lrs-;ih~i;i);-r~- ~;Jti!1~atcly_I:Jlak_e, !I!~Elci)l(:!lr, _;tnli entq rc;s: dcc;i ~ i\ll1s i~
... ..beyond doubt, even if tl~c_ modern st::ttc_ ln:ivati~;<:s o_r_ d_c!:CEt!.!~lt~s. pn:vj(_)usly

warlords :md other violent ;u:!'ors (sec chapter by Chojnack i and Branovic 111 c 0 , ~
------ . -~ ... . . . ---- . .. - . .. .. ..
....,,_
this l'olumc). The second part ofrhis book explores !'he va ri ous contributions v , ,~..,,

--~-~ - " ~

-.

- - -. . -

- - -

- -

-- -- -

.-

J "''

of non state ;Jctors to governance 111 areas of limited statehood.

,,.,c.c e-i..(
The second process dimen sion ofgovcnLlncc concerns modes ofsrcering. n <--[ -rhc n1odcrn (VVcstcrn) n~Hi O il- s talc has the ability of h_ierarchical steering, t1..1.i

~--

pub];--~-~~;;;~~s. l~t]lCl~:~-~9~,-~lC I I~Ol]Cl]_l ~~C: .'~s[~~<?.<l~- ()_(.bi<-:!:'31-_<:Qi~ is

never in doubt, even in the agc _ ()fprofoun:lJil~c?li_\l(_l:~,])._ priv~t i za_~ ic_>!l ~1_1d .

~l;;;;l~ti~~;~-( 1~~~~;~1

rc~~::_rio~:_of firms_ (chapter by .Bi)rzc l ct Ji. in this vol um e) and even by Sec(, ,

that is, ;Juthoritative ly cnf(Jrcing the law, ultimately through policing and
"top-down" command and contro l. lt is precisely this ability to enforce dcci-

;;;x;. . .

i-vc ,-

sions thar is lacking in JtTas orlim itcd srarehood. T<_J the cx tcnt_~~~ll_!_e.!::~_rc hi - c \6""

['his chang;cs profoundly under c<::19_~t!~12~YJ'Jil_l].it~d ..\tillc.hoo.~.L . Govrequires providing these very gover-

crn;Wcm:ifcas-of rr;-;;-;i.c~r~r~r~T;;;c;Zl

cal steering and aut'horit<ltivc rule do take pb cc in areas of limited statehood, co(., " r...,.v ' \
n,mcc ~CI'I'ICCS ~~~1_: 3~1s_encc of a fully_ fi.~t:5~t-ot~t-ng_~t~te's .~xe:-~t:g ~tt lc,JSt .1 (St(). ~~ 11 we-1;~0~) look Cor acwrs other th~-~lc n atior~?.!__govm~mctlls . As c;r;;;: 1M" <.<A '
nJcki and Branovic point our in rhcir d1apter, '";';lrlords and local " hig men"
"shadn_12:__~~t_ h1~rarc:hy" With the ab1ltry to enforce and unplcment dcctstons. ~ r 1 v 1

structure, security, :1ml other collective goods (for a discuss.ion of these no rm;ttive problems, see L1dwig

2.007;

sec also chapter hy Ltdwig and Rudolf

\t--

1
N

J.,<~\)

__

, , , ,e

c;"''0

ln ;1 ddition , intern ational org<1 ni z.a1io11S as well as---mosr ly VVcsterrJ . states

--- ---- -- -------~........__.....-...._~~ .... -~
ofi-cn imerJi::_..-..,_
rc___authurirarivc
ly, p;trticubrl
y in _____
modern protectorates ......such
;Js
______........___-....___-...__
-...-...-..__ - ...__._. _ _
__---....__..~

,,,.r r"" I

on this poinr)- -unkss we want to give up the

~~;
,
;~-iv:proposil'ion
thar
human
beings have a ri ght to a decent :tllliHrity
1101
2007

st.J~e hond]~ec Draude

.J,, sometimes exert hierarchical control in war-torn arc1s of lim ired st;Hehood.
v. O

- .. - ..

i'J

This implies that we will have to look for lilt tCti <mal sg1ti v~1lct 1L,~ to m o dern_

--

Kr~~~!~~~~~=~~~:::~J2~l-~~-:::.::~=~~~:~~(sec chJpl'crs by Schneckcncr ami Broz.us in this volume).

Muc h more common , however, arc nonhierarchical modes of social co in this volume).
;> :><L'"' ,,_. Ju..._ - - --- - --- -. ,,
ordinal'ion in arc;Js of limited sutehood (Bt)rz.cl and R.i ssc 200 5; Ccihlcr ct
This book nplo rcs the variom forms of govern;lncc emerging i11 the

1::i_<.~nhicrarchi~:li stccritl" involves crc;Hing and manipulating in -

context of l.imitcd statehood. Vl/c assume thar f(mns of governance emerge

ai.

under these conditions. The contemporary social science literature discusses

these as "new" modes of govcr;i-:i'ilCcO~~ the pri l'ati z.afion <)f ;uth~~JY(;:_:~

centives ;llld " bcnchm;Hking,'' as well ;Js inil'iaring cornnJunicltivc lc:1rning

processes . Pns iri v c incr n t ives a:; we II as s.u iCti(iiis:ii-Cim:-aiJ-rt:o--~1 tYG.~t -t i, ~; ;Sj-~-

....
'

Cutlct:;-J-];,ufkr, and Porter 1999; Cr:mdc and Pauly 2005; !-Jail and Bier-

.:._-

2009).

---

.,.,..---- -

------ - --- ~ - ----~- -

~ :

'

... -- --- ------------------- -- - -- -

benefit caku latiul lS of the releva nt p.lrti cs and to induce l'IK des1rcd behavior.
- - --- - ------------ -- -- --- -- --- . . ..---- - - - - ~ --- -~-

12

ln rrodun ion

;111d

--

O vcrvin v

(3 uvcrnance also includes bargaining processes and hori zontal negotiation as

well as nonmanipul ative communication , persuasion, and learning. The ht-

at best-- f(Jr

,; ~

of Soc i:d Science Concepts

The understa nding of governance employed in thi s book largely folJows the
conceptualizations in American <Uld Europea n wcial sciences. However, ap].Jiying the governance concept to areas of limited statehood reveals some im plicit biases. The way in which the governance concept has been developed
in rhe social sciences (and bas become part of politic1l pracricc) is strongly
in1lucnccd by the experiences of \Vestcrn mod cmity and of modern state-

u rJ.imitt.:d

St ~nthoud

13

Indi a Company exereiscd6-ublic"

"chi efs" the authoriry to rule hi crctrchiol ly. Ep.,60: cl td(cif clt:OhVI Gt.: 11- eu ll"e
Applyin g the public-private di stinction Lo contemporary areas of limited <..t t ;-c,~?
statel~~od
is Jus_t_as
difficult:. Of cou rse, \ IT "11 otill diqln b~ru is h-f(; i:m :Ul .\' h10 E'Jrc..tcc(Q:;~

.twect;tl1cst~;~c and th e nonstatc sector includ im; or-pruli tl0il?_~B1::s7'oi1 tl{c

J~~ hand , ;md the 1Jonpro1 it and civil society sector, on t h e_~J!hcJ:,_B~~ ._;,~j~1t
vw
( .J rc< r<cG1
docs thi s me,111 i ~ en lll ltric, in wh ich ~ t ate ins titu tiu_!,1 S, n:,..,so wc,lk t h a~ ggy
1
___
_ ___
emmcnt .ll'tors c,m c.1sil v cxplo i ,rare 1csou rces lor pri v.t rc purposes , 11hil c e.\

\Vhctl Governance Travels: The Implicit (Westcm ) Bi as

/\_n.: a~

auth ority 0 11 behalf of the Brit~sh Em12irc. The same h~_!_<:is n:~~- !.c~:-~ll_eJ.~ctlni ti on of indi genous elites as "privare'' acto rs, since co l on i ze~s o~~e ri__Favc_~~~c:~ l_

ter modes of governance ai m at chaJJcnging fixed interests and preferen ces so

.~
th :~t~tors arc induced 111 a soc1ahzauon process to mtcrnali ze new rules :111d
0 'p (.
\1Jil;-;;:ms~1 ost chap~thCSccond pa~toi'ihis book' cXj)lore' ti;?'barg.ai ,Jng ;;t'
.
- --=--~~
f('e 0
between St<ltC and nonstate actors involved in governance in :u eas
1;.;;-esscs
{ (\
~--------------------n"~ e/_. ..
orlimitcd sr;Jtehood.

'
0

Go vcnuncc in

c~a m plc, t,f~~_}>ri~~_t:S:/ Easr

/-

01

"'!(

.,.. __ _

. ',.

rc lc ~,-'\...l.., ....

.:.__;. _- ,., , --....

--: ~ ----:::.... - ....._ ---~- J-----. ..:__:- ,

............_

_ _ ...._ _ _ ....______........__..-.._ .....___ _ ~- -.._ __ . - - - - ----:-

so-ca lled w ira le acLOrs

----

--

- - ---

' ll i.-h .J S

--- - - - - -

((-lfl1j1 ,wic:

- -

- - --

......__ -

--

.._

- -- ~ ..... _

GQ . prnY.i.ck
- - --

; .-~~

.._ . -

111\I Ch

-- - ~

nccdcd

- - - -- - - -- -

'\erre,Y\o r..: ; co~~t~I'C ~~..::~Lh reg.J rL~-~~ pu bli c health, ~~c~l~

i)\ D(e.g., 13op,c] ct al. 2007; Fuhr ct a!. 2007; sec chapters by Liese and Beishe im ,

:;c- lil"'
and l)i)rzcl et a!. in thi s vo lum e). In o ther we_>~~~' th~ i!."!.lPJi~i~ a0~_un_ptio11 of
:.:::---- --- - '.Z\ the pt~_L:!_~riv:g_c___t\L'itini:..ti_Qn accm~governmcnts gove rn ,md
SL' i--

---- -

(0. twivat~ _<~cto_l~_mi nd their own business is o ften t11rned 01 1 its head in arc?:':_

of JiJ~!i~-~~~~~_<:ll o~~i.:_Jh ' di~tillL. tion rh,lt CO!Il CS with \ estern modcm ity,
~/
l0
accordi llf!. o which '\t,JLe ~ puhltc" .11Jd '' no nstatc ~ priv.ltc" is eno rm o usl y
172\]l a. ~
v , ,~
prohlt: nl:;ltic in ~1rc a s uf limitcl:l otdtch ood .
hood as defin ed earlier.
111 (Vl ") '
\
'J:1kc tb'e exa mple of Palestine und er Yasscr Ararat: The Palestini:m Author\"~
. occ'
,
L;IY'-'<:
.Li:e\1\
ity was !)lO fT or less corrupt at the tim e and the devclopmcm aid provided
1
'b <;t' (V-!L.
by th9 intcrn ational cornnnmit y to julll]J-starr chc l'alesrinia11 st;lte eJtLkd
'/ he Distinction Between the "Public 11 a71Ii the "PriJitJ/.e v SjJhcres
'{'
.
'
1
,e.;,>r '. up in nriv:ll-c coffe rs. At rhc same time, d1c militan t fslami st organization of
\...\..)
J
Hanus provid ed crucial gnvern ;l nce servi ces in the soc ial , education, :md
])dining governance and the modes of governance in term~ of including
public health sectors vf the p,llc.stini ;m territori es. So, who go\'lTIJ ed Palc.<;state ,111 d nonstatc acto rs in the provision of collective goods more often
ti
nc at rhc. tim e? lf wc usc the previously stared guvern;mce definition, 1-Llm:ls
~>t relics on the distinction between thc~blic" anc_L'_[Jrivate" rea lm s.
is Jan us-faced : On the one hand , it is a. governance Jct:or providing publi c
Th i. i.> tinction, howc\'cr, stems frum mod ern sutc hood in it s \Vc.,trm an d
services in Palestine. O n th e od1cr h:md :md almost ar the same time, it is a
Euwrcnrric umk~' 'lndi ngs . This is prohlcm.1tic when we dppl y rhc govcrterrorist" organiz.arion that undermin es govc rn a.ncl' in the sccurit"y realm. The
n.l iHT rolll cpt ro ot i1CI histori c:~ ! comcxt.' or other cultura l experiences i11
~a me held tn1 c for the l\ilcst ini an Authority under Araf:ll: fts securit y agencies
rhr cn nt_rmpor.l t)' inLrrlf,ltion.J! system . IlistoricaUy speak ing, the mode rn
<l t least tried ro maintain public security in the occu pied rcrritorics , whilc Pal Western notion or rhc "pri va te sphere" is co nnected to processes of indiestinian "state" acto rs undermined governance with regard to the provi sion o r
vidualiz:ltion ~nd personalization th;lt no.!) emerged in the second h.dr or
other collective 0i!( JOlls.
cigll_tccntl -ccururv Eu r~ pc leadin g, to t h ~-~~Jl~':_<l ~~~~ oft he ln1blic ;md the
.

ct

pnv,1tc (e.g., Beickcnf~~dc 1976; Kc:!-;-Jc~SS). As Conrad and Stange <lrguc

in their chapter, thi nki ng or the "puh)ic'' and the "priv,ltc" ~ p h c rcs as bi -

.u.J.!J' categories is inhcrcn rly problematic wi th rcg,.m l to colon ial nile.:_ They
dcmonstr:ltc, fo r example, d1at !"he diJJc rc n ce~ between statc-Cu nded admin istrativ~. ~:,:~;;,~-~~~j;~;;T,;atc" acrors an2ong the coloni1-rrs wc;-c margin al

Th e exa mple o f 1\ dcstin e refe rs to widespread phcnomcn:l in ;Hcas or

limited stat ehood: Rent .sceki 11g t.?;o vernmcnrs d istrib ute .\ l ;ll c rcvcnu cs ill ch iding dcl'clo l1fllCill a.id tl 1.1 int ain their n il e vi:1 li cnn:li sti c net\vork' (the
Jiic:l, til e ~ o ut lin n C.wc.t.~ m, ,1nd cl.scwherc; :, , ~ rdm:1 n n LOll2.; Enlm.111 n ;md Engel 2 11'-l.:L ) . l n o th er

f'-' <1 fo

e)

( l' t"U- <Cb

o!:"'vt~l.<_

tr-..... :z....~>

I c"

J.1

em pi rica 11 Y('. w 110 serves as a govern ance

r ~vc n pri vate goods. ln a

words, they transfo rm public goo

differe nt way,

- --G~wcrn~c in Areas of Li mited State hood

/'

Introducti o n and 0\'crvic\V

'

f f"

15

apostl.

actor f-- t~~~-tJ ve o~a _ QI:J:!2_<

~~~':_~~~~~;~~~~~~~ ~~,~~~her wo rds, one wo uld sea rch

t~1c emergence of 'sh;1dow states" . ~ ro be considered here

<

too (Koehler J.n '""'urCJcr 2 00 4-;

cr 2007) . . On the one haJ1d, formal
- State institutions have ceased to exist or to provid;govcrn;;K~ - ~~;.~i-~~~~

for functional equivalents ot"publi c" act:q_rs (Draude

.J

2007, 2008).

l~ iling :mdfail~d starei.- Ot; tl~c oti~~~-E;;1~i_,~i~lic-"; t.~-;l govc~;;;;~~"Z-i;"l0{LUCi~n s

c~T~l\J~l-;;;g~_i~;~i:;g_~~~~~~~d"E:~Iitic~~_t:~er as well as collective goods,

] 11tcntion.ality

~h ereby prcvcn~0_g the cc2~~.!::Y_ or_the regi~l__!J:_o~~O__t_~~~~~tel L_:_~~-':s!~

imo anarchy. In some cases, such as the Southern Caucasus, shadow states

T hese considerations lead to a second problem w ith regard to the app licabi l-

Sl~t:vi vc over extended periods of time.

ity of the governance concept to areas o flimited statehood. The govc rn ::m ce

These examples challenge the way in wh ich the concepts of "state" and

concept as deli ned earlie r is gea red toward producing and implementing col-

"pu blic" as well as "nonstate" and "private" arc mostl y used interchangeably

lecti vely binding ruJcs and provid ing collective goods. In other words, gover-

111

the social sciences based o n the hi sto rical experience of 'vVestern moder-

nance implies

nity They also show the implicit normative connotations of the distinction
(sec Lad~g-~t-;;-r_-2c;c;?; ~-;-;-~hapt~r by I~ach;,ig~~;-;:{ Rt;~J;;I fi t~--~i~i ~-~;j~t~~e ).

..

mo tivations toward the common imerest do not hurt. Poli cy-makers, fo r

justit)r their actions with regard ro the common good (sec Zi.i rn

th ey are usually embedded in governance stru ctures that institutionalize the

2005).

Whil c:-

ass um e that governance institutions s11ch as the state or its "shadow of hi erarchy'' embody intentions toward providing collective goods. Second , we need

pl~i~c-~~Jlstitutic>ns lackin g tJl c__ c:lp~cityj;; ~1str~i11 pmvcr- m a.x i n;! 7ft~g_ ac

to c!istingui sh bcnveet~-~~~--l?E:?~~~~-~:_~f:.~c:?.'.l2.c_c_:~.!_e_0~-~-g_C?_<_?~ls OE_~~~:~i_::~~-as

~_l:!.':i~?..~~~?..d ~9-~~~:~C.:.9 ~_c:1 c~ .?J: _
:' 1:2~j_y~1 ~~'~ -'~~ti':i~i ~~ ?. <:>t: th c one hand, and
th e expli cit regulation of social iss ues am\ intentional pr~l~;~-iOJ~ ~;f c;>ll~cti~r~:-

acrors flrsnch

~Q.T: fiE'<~ :~_r_>_~'-II'Cli~~-~~~L_a~~~l~~-0.~t_p~i::ate CO~~~~~-~~j)_l~!sue their q;-;;~;~H~~~j~

intcrrstL even if th eir bu~im:~)_~_es pr~ti cC.'i_j.RQ.du.<,;L_j2Q.!i iti ve extc:;rnalities f{n

c (~ ,, \:J 1u~G\

~he ~!mmunity {jobs, wclLHe,_\J.). B~t we als~> ~lSSL1_!12C _r[pt priya~e. aC!"_Qt:s
1
J.e~'l'c0' r;~ 1 nf~KL wH!llll the mnf'ines of the l.1w-.md 1f not, tiE!! tl~_c;__co_~~!~~-U rake c11e
of th em.

...,., &!.:,::.

lS ,-

~t>.,;.;l ;~

~-

. e. )

<.:)o''

.. :_X( ,

~~ oc' ~-:,'0'-'-

1,\->t

. . : -,'i-'\.
V -"'
Q "" '\ '~
"":>-.\ .'
.:V

"(,o

',___./ :
l

The inherent intentionali ty of gove rnan ce becomes problematic w hen applied to arcJs of limited state hood . F irst, as noted earlier, we can no lo nger

we can throw them oul through democratic proced ures or, in th e wo rst case,

c.1scs or to assume rhat state actors promote the public inrercsr. As t:o private

,,

intentio nali ty of governance toward providing services for th e communily. 6

rhrollgh th e judicial system . L_im iled statehood, however, consists o r w :!k

~ J\s a result, it becomes prob lematic t:o speak of "public''

11;-\o"'d' 1

Thi s docs not mean that governance actors

have ro be necessarily motivated toward the public interest, eve n though

example, can still be egoistic power-maxim izers . Yet, in a consoli dated state,

toward gove rn ance in the commo n interest. And if they abuse th eir power,

actio n toward providing public services fo r a g iven

2004-, 67) .

We u sua llyc:l(.P~c_t_0_~t s~~~~-~ctors contribute to governance, tJ:~~--tbat_ tl}c:r_

stale - nu lllJtt~ how trat ~o rm ed "=~r2:_ su }posed to direct Lbcir... ~

II

in tention :~ ]

community (Mayntz

:~.~~~~~l~c public rather than the private interest. At least, they are su pposed to
Jl~ li cy- nukcrs might be power-~cking, ~tate in st i ~_':i:>_l_?~~ -a cc~_nsoJj:cbted

I I

and Normatil'ity of Governance

~5~~~~~~_;:~~E~-~~~~~L~!;l); ~~~~--;~~-;;;;~l -{t;;~i~-~:~;;;;;~ii;ig ;;;~:~~ rci ~J-l;;J;f\, as g(>\'CI:_

nanceif we stick to th e earl i crl~o n ~<:P!.u a li 7.at~on.
~--J.1"; iJJ~J s-i:;~1t~ th e p;iJ~t~~r ith an exam pl ~: O il companies such as Bl' in Angola routinel y usc private security Jirms to pro tect their industri al producti on

f~K ilitic s

in areas of limited statehood . This transforms security into a

Th c~c .l,Sll lllj' ti on: rh.11 conK wi th rhc " public-j1riva1c" di stin ction arc

pri va te good . Protecting such f:Kilities mi g ht b:JVc positive extcrn :llitics t<x

_mi.,., itH! 111 ,1IT:1S of li mi ted ~ t.He hood. At least, they ca n-11o lo t1ger be taken

the s urro unding neighborh oods insofar as the security lirm s mi g ht un inten-

f(> r gr;mtcd. The conccptu;JI problem cannot be solved easily-fix example,

rional ly deter arnwd gangs or militias fro m attacking n e~uby vill ages too. Tn

"

<_!~11.: could speak of "hybrid " regimes gr torn~<;_ of_gs>_~crn<~!::~~~der_!:l!

thi s se nse, t he firms while primarily providing a private good fo r Bl' wou ld

:~void the distin ction between th e public ;md private rea lms or between state

also contrib ute to public security, albe it indirectl y. But we wo uld not call this

:1 I
J
)
J
I .
I .I
~:1_:_1_~~-lst;llc actors (e.g., J>
JC!ll e eta. 2002 . B~~- sue 1 a s~-~~2.)' SIC e-

sec urity gove rn ance because of the lack of intention;uity. This ~1 ct i viry could

s ~J)S _l h'::_Crob lcm

to discern who provides gov~ rnan ce services and w ho docs

be ca lled governance o nl y if 13 P explicitly inslructs th e sec uri ty f-irm ro protect

not o nl y the oi l racilities bur also th e surroundin g vilbgcs .

16

Governance in Areas of Limit ed Statehood

1n troducrio n and Ove rview

ln other cases, we arc fa ced wid1 a continuum r;mg ing fio m governance
in the sense defi ned here to " racketeerin g :" The Afgh~n wari(Jrd who uses his
mili tias to provide public security ~or__ the ~rca

?f his

rule Gl_:.n ~c r eg<J.rdecl a .

g()\;Ci-ii'iii 1 (~y~~i:. Ffo,;,e;,~;:, th ~ ;11o re he uses th e same militias to threaten

th c-~a[~ty of the community and th en resells secu rity to cli cntclisti c networks
fo r a pro tecti on fcc, t~~-l2~~ r<J~-~vo_t~J.ti_t:li1J)[QI)!l.[>_l}_glic -~C::.<:l!.li!Li!llfl ;I _c;l u b

or private good. -~~-~~~~~!~~~~-~~d be ~~1ckc:::ccrin~:: (Chojnacki and l~ran ov i c

;
; Schuppcrt 2007, 479 ; sec th e a 1aptcr by Ch ojnacki and Br,movic in this
7 007
volume).
Thus, J! P-l?lyjng .0~- g~~:<:I:'~~~:_c_c: __c~_':2_~~_p_! _~9... ~rea~_of lin1i ~ed state hood
highl ights its unavoidabl e _i~1tcn~i~~~,l~~t)l_:_nd impli cit nornl Jti vit)' 1f we d efi ne gove rnance -as is common in tJ1c social sciences- as tJ1c ma king and
implementing of collecti vely binding rul es aJll'l th e provision of collective

17

lutions. 01: _tJ_:c_oncha;Ki, if !j_ovct~n <~Ke _is o:e rbl~~:9 cnctl __,::it1J_ s ~1c~l1 _~ ~trc::ng
the public intci:e~t, we

~tivc o ricmati o n tc?:vard the common good or

,;,ill -not-fi;1d much govern an ce in areas of limited statehood by d efiniti o n

(on .t11 is po int, sec Schu ppcrt 2007 ). I_':2_~I1i~~<~~e~ g_ov~1::1 a!~.c-~ do_~~ - ~1~t- travel
very far outside rh c develo ped O ECD wo rld . On the o th er hand, if we strip
th~-~());cq)t (1f govc rn ,1i1cc 'o f:{l! ~ l O rt;J ativc connotatio ns, th ~n ~-~;;;:yrhi;~g-i-;;-

govc~:I:ial1c_~ -~~~~~ ~he p~i\i~ti zat ion of collecti ve g oods bas IHJnmti ve weig ht
equ al to thcp rovisio n of pu b lic goods.
~ t~gges t something in bct\':_Cen~!s _: way out : w~t:!_ cons_i~cr govc:r -

--I

11_a~~'Otha\?I~cssY!i~-;~~~it~~~~~n;:icE~~;;;rc inc_l~&v_cJ)!e~~ocial group

fqr_ ,~l~~cl~ _ gclod~ . <~r_<:_ P!:c:!~~d~d gr . ~cgul ~~i~~~~ a ~e fo rmulated,_tJ1e _n)ore _
\''<:;
should consid er this as_govcrnancc. After all , this approx im ates th e defini tion
of publ~good~;;; ~~11s- of.~on;~;~lry in consumptio n and no ncxclu sivi1y in

~nrivcl y toward what is supposed to be in the co mmon interest. But w ho arc

access . In_c~~:'l::~S-~~~ ~_l~?re_ c~ rtai12 seTv) ce_~ at~c:_ _onl y provided Jc1r exclusive
groups and the m o re collcct:i vc goods are tran sform ed into club or private

th ose in areas of limited statehood in who se nam e th e "co mmon interest" is

goods ,;~z~~-:;;bfc ~;;,Jy i:~ ti1;~e ~vh~l pay fo-r the n~ ~r wl_1o belo ng to specific et:h-

being pronounced~ What is the rcleva llt communi ty or collectivity fo r whom

1;ic o~:!:~li~io;I~~

governance is provided ? Once ;~ gain , tJ1~se issues a::~~?E!t.9.~<:i~i_<:.0 _!1 ~_ !)1 ~ _ .

ideal typical modern \Vcst~~-11 s_tate}l2 most cases, governance is provid ed fo r
the people or the cidz,cns living in a g iven territory. \Vhile some services arc

Jn parti cular, applying d1e no ti o n o f collective goods ro <Jrcas of limited statewhi ch gove rn ance is provid ed. In m an y cases, those entitled to receiving col-

only accessi ble to th e citizens rather tJ1an th e residents, even noncitize n res i-

lective goods such as securi ty arc di stin ct from t he addressees o f govern ance

dents enjoy some basic ri ghts as well as access to at least some public services .

services th at also di flcr from th ose w ho J':lctuaJly receive governan ce (sec th e

All this becomes problematic in areas of limited statehood . .lnmal})' cases,

chapter by C hojnacki and Bran ovic in this volume; also D e Ia Ros a ct al. 2008) .

it remains unc lear who arc the addressees o f governance, who is entitled to
which govern ance services, and w ho acntaJl y receives them in practice. \Ve

It f(Jllows th at the bord ers between governance and "racketeerin g" <li'C
ra ther fluid in areas of li~i-~~~i-:;;-~~h~~(;d.- ;6~~- ~'~~;k~r and th e m<)I:C flagi lc

cann ot simply ass ume that the coll ectivity fo r w hich governance is provid ed

rl1 ~-~~~~~-~'- t!l~=!-~~~---ir__l_~~:~~;s~;~~;~~~~~r;;~~~-g~?~<:~Il an~~- ~cJ~ vi ~-~:~ -~-~~~;~~d!~!?> _t(;-

goods, we cannot refrain from aclmowlcdging tha t go vernance is linked n o r-

gro~11~s, tilC less_wc:~I~< Juld co ncep tuali ze this as governan ce.

hood requires a more diffe rentiated conceptu ali za ti on o f the collectivity fo r

is clearly defin ed . Take border reg io ns in sub-Saharan AJi-ica, fo r cxa1nplc,

benchm arks derived Ji-o m m odern cl cvcl opcd states . lbthcr, we sho uld stri ve

dl at arc beyond the control of central gove rnm ents. Arc tJ10sc enti tled to

f(>r minimum normative s ta nd a rci~-i1--;-ll;;-~c c;:-z.-;;--(Kcohane 2007; Ladw ig

receiving governance the people living o n a g iven territo ry? Or m embers of

2007 ; also the chapte r

by Lad wig and Rud olf in thi s vo lume) .

J ;.-} : 1 '' ( ("

parricular tribal or ethnic co mmuni t ies? And who decides w ho is CIJtirlcd to

(,{.~ ("':

'I

wh;Jt, p~ rti cularl y in cases o f extremely scarce resources( Is ir governance iC

collccl'ivc goods become club goods in the sense tl1 at onl y particular ethnic,

GOI>CJ7J.anre

and the as hadow r!f' ff icrrrrd~y ''

religious, or gcndcrcd communities arc entitled to n:ccivc th em >Th e latter

eut'J fvt.1c;--

~ ;:

Cc[.. ~ :, .

:I

:;. I

constit'LIITS ~ comm on practice in many :-~rcas of limited sta tehood , bo th hi s-

!\ third problem with regard to th e applicati o n o f the govc man cc concept

tmicall y and in th e contemporary internati o nal system.

to areas of limit ed sta te hood concerns wha t has been called the "sh adow of

Thus, applyin_g_g()~-~ ~:'.'.~.'_l_.c~- t~)-~~~~:~s_ofii~lli ~ctt ~-t~a_tch o_od requires takin g a

:'_I_~~;J~~Iraini22_1;2jro~1_2.:~i_tl_~~! cvc_r y~ l_lillg _o!'_ l~or!ling'' _con~~p_tual so-

hie rarchy" (Scharp f 19Y3) - R esearch on modes o f govcmance in d1 e OECD

wo rld

;llld

on the transfo rmatio n of (modern ) statehood has d emo nstrated

,. " / ; ) 11 .;.
......
..... - / ' :

J fv"J', 'J ff~ r bie ' ,

[o,.,Uue-

r'n-

.S t!,t 1f }1r;o-:.J ( ( ,.-.ttn

Ci-1f'e;(_

/-; ~..

~ / '-1.-r ,f- .: .,.

1- '

.---

7u.:::,l r . -~;; :

r; - ,)

f
(. '

-,.._., __1
r;::- r r

. "}/~

(; f'(

:' <."' i t

/'~L.f,

rl

1X

.]

i/

I nLroduct ion <111d Overview

Governance in Areas of Lim itcJ SLaLchood

rhat public-private cooperation (such as PPPs) and private sclfrcgulation arc

What explains then that we actuaJJ y ilnd governance in areas of limited

usuall y Jl1<li r cfr~cti~~;;~cl,;; "shadow of hi~rar~i~y:" ~th.i ; mi~~l~-~F~~- st~!-~-=

,\
-agencies supervise private regulatory efforts and that governments threaten

'\' . ~"'
0 ,\..

statehood? The chapters in tl1is volume suggest that there might be func-

) ,y 0-"'' )

~\J.j .\,~
.'

lf} i

[
j

tional equivalents tc; the "shadow of hierarchy" provided by consolidated

t(;--I~g}-slate if private actors do not get their act together or do not pro-

r>'-~

'i

-- ~

!\___~
;!"

".:; u--

;,f- '~,v-

statehood (sec Bi:irzcl 2010 ). Fnst, in the case of the modern protectorates,

v~~__tl_:~_~~~cctivc goods. The liberalization of various public services-such

the international community not on ly rules Juthoritativcly in areas of limited

as telecommunications, electricity, and the like - has led to ample efforts at

statehood and interferes with J country's "Westphalian sovereignty," but it

rcregulation by tbc modern state (e.g., Heriticr 2003; Borzcl 2007; 2008).

also provides a "shadow of hierarchy" (chapters by Schncckencr ;md Brozus

llierarchical ~tecrin g or the threat to do so appears to be a precondi tion fo r

in dus volum e; sec also Lake 2009 on hierarchy in the intcrnation:~l order).

rile successful implementation <md effectiveness of modes of governance in

the modern nation-state and beyond. In other words, nonhicrarchicalmodcs

Second, international legal standards on goo~ governa~Kc, human rights,

:mel the rule of law hold actors accountable in areas of limited stJ tcl}oocl, be

of steering and !nduding n onstatc actors i!lji~~~~~~~coi11pl'i~~:~i i:iltl'icr

than substitute for rcgnlatory activ ities b.y nationa lgovcrnm c nt~qxanarional instirutiC>-rissu-C:l1--asi-f1c-Eui:O-pC:-U1- Union. Moreover-and paradoxi-

and Rudolf in tl1is vol~,~~~) ." wh;lc~l!~~':_c~l:~~_:r_~Cdlcsc standards is inherently problematic, the increased legalization of these sta-;lci <1 r~is indi.rdl!ig the

~ ~. - :. \: 0-""), carrv=-strong stafcs- o!'"stf<mgsfipTanattoil<u- orgaiiizatlol1sarc

it govcrr1ri;cnts, NGOs, firms, or ~vc n rebel g~oups (~ cc chapter by Ladwig

iii-tcrn ii!Oi1:1.i ''rcsj)o~~-ibi-ii.ty !:~ pr~~cc~" (luP) ~as~~ a shadow of hierarchy

rcguircd for

i;; area.~-6Tfin11rcasl:arcTioC.)cT:1-=a;,r-t)ur ~;;_;r-icast,

nm;hicrarchical m o des of steering to be effective and to enhance the prob-

' \J ,-~ S !em-solving capacity of govcrnar:cc_ (Bor~.:_l _:oo9, 2oro )- Managing politic-_~~
~~ - 1,:-.J'vb. IL <lLJ tl_J_ority rc~uirc~ ciTCctivc state capacities i~cluding / stro~:g "~~~~_::>~~
\e( , -J-.:,5- 'J-~~( hierarchy!'
- -- --- -- ---------- T~~-:;; __.:-~~te u r l-o r~ sub~ h 'r\J\1" i-j .::; n::, ;-c

lective goods even und er the most dire circumstances of limited statehood.
As Chojnacki and Branovic argue in their chapter, ~vcn w~~<::rds, l c:_~~ "big
men;' or rebel g roups somet im es provide security as a collecti ve good in

\' ~IL'~ lf these findin gs arc universaLly applicable, then govern ance in a~eas of
~9'~ 1 limited statehood rs doomed. Areas of ltmrtcd statehood arc by dehmtto n

\ /

~ccurity markets iffacecl with an opportunity structure by which :~:rJ2.cne~-

fi-om protecting the local population rather than exploiting it. i\s to l]nns

~ 1'u ~,v \ characrcrizcd by weak state c1pacities to implement and enforce decisions,
r.,~~"'"~,<:-,)' ~'I '\ th;lt is, by _wcak "shadows of hierarchy." Moreover, the contribution of nonrf:_->J~~fl.-'b

state actors to the provision of collective goods h as to substitute for gove r-

-~

nancc by governments rather than to complement it. lf the B1ll & Melinda

~"'() ~
_.. \J
9

}i0"t"

rc~:,rulation. lf; f(x example, brand-name firm s target hi gh -end 111Jrkcts or arc
J Irsubjcctcdto
NGO campJ igns, they arc likel y to provide col lective goods in
j:

~ ~A

~ the framework of~orp()~:atc ~o~i ~1J _r~s p~>nsib~_il)' (C5R).

will~12_<2_t b~J~~~~;~!:_1 ~-~-(~i~g_ (for details sec

/l

"' "

~ --- - - --

- -In ~ um, .!"his overview suggests that there arc some implicit biases in the

-J' -1.'-..

Sch:ifCrho!l; in preparation; Bcisbcim et al. 2008; and the chapter by Liese

govcrn:1 ncc concept as it has been developed in the context ofvVcsten1 -b3scd

<o

and Bcisheim in tl1is volnmc). If Daimler and other automobile manufac-

socia l sciences and modern statehood. However, one should not throw out

ll!JTrs in South Africa were to withdraw _li-om fighting HIV /AIDS at thc_iJ_-__

tl1c baby with the bathwatcr. The governance concept provi des J usdi.d tool

""'0

. ._.(

~'" .'<."-

\i..}

-~..,

production facilities and the s urroundin g_i!_~S\S, the fight there against tllC
~Q 1';1;~1;;-;;~-~- would be doomed -(B-brzel, Hcritier,-a-nd Mi.illcr-Dcbus 2007;

ll

'<

~ Mtillcr-Debus ct al. 2009). The same holds true for environmental protcc.;;;""s Q.. "'~v/tion in South AJI-ic~, as the chapter by Bbrzel ct al. reveals. In each of these
v-"'<<---<;J'<.

' >J.-\; ~~..)\,.._

,\luv
~
examples, the central governments arc far too wcak_t_o r>_rovid th e collective

rJK"'r.:,/

..

G/

\) { {\ .e_vk, i

good.::i;1 question. As a result,

pri v:~ tc actors ;1J1d

th inte rn ational commu -

--- --

nil; substi tute lo r r.uhcr t ll.ll l com plcmc ;i!- go vernJ IJce by th e st-;ltc.

~\)1'6"

to analyze policies and politics in areas of limited statehood, precisely be-

~' (7

";;!

arc several m arkct-b:~scd mechanisms inducing companies to engage in self~

fromj)J:~:;dj~~~iccs in _.
rh~--arca of public hc:~ltb- for example, the immuni zation of children - in

IJ.:;., "~ s~~~-Sahar:~n Afric.:2_thcse services

~nd environmental protection in South Africa, Borzcl ct al. show tha_~

Cates Foundation (BMGF) decides to withdraw

'>( '

. .;.;<-r:.

-:..,.f'

tT;c~:e ;;;--c-y;;;-:io\.is --ili-ccii~

r~;e stn~t~~;:;;:~- ~~;;;!;L~i~--r;--~~;~mit nonstatc actors to the provision of col-

c~

1y

0\\-

cause it directs our attention to the role of nons tate actors, on the one hand ,

and nonhierarcbical mod es of stee ring, on the other.~~ a result, governance

overcomes d1 c statc-ccnrri c bias implicit in the literature on Llilcd and Jail'

iI

ing stJt-cs as we ll as d1c modcrni z;uion bias of most deve lopment studies.

\\

St.ltc butldm g Jll ateJs ofltm Jtcd statehood 1111ghr be futile, hut "govcJn.mcc\

~(/\.;

cJ...LV

b~..,~~
\JA~~ I 1, t
v\"

shaping" ccn::tinJy is not, :1s Bro;,us argues in his chapter.

~ ""

"\

~~'". "-'~)

- ('!'~"

._,Jr>'(\

/ '

20

Introduction ;~nd Overview

C~uvc rn ancc

in Are.ts of Limit (:"d Statehood

21

I now turn to the contriburions in this book in more detail to explore the

legality of political decisions can not even be conceptualized outside a state-

wlc of nonstat:c actors in the provision of governance, on the one hand, and

centric fr<U1Jcwork. Th e chapter by Gunnar Folkc Schuppert takes up this

challenge and looks at v::trious instances of nonstate ruJc malo ng in order to

the con triburion of rhc international communi ty

lim ired statehood, on rhc other.

to

governance in areas of

explore what happens to publi c Jaw in the comext of the demise of th e state
(Bntstantlic/Jun;_:J) and the dcterritori;~]i ;,ation of political rule. in areas of limited statehood. He focuses on diverse ex~1mplcs such as the rules governing

Who Governs in Areas of Limited Statehood?

Th e Role of Nomtatc Actors
As arpucd earlier, areas of limi ted statehood arc not devoid of governance.
___.E---- ---~ ----- ------ --- --- - ~ ...
---... -....... - ... ._. ... R.at"h cr, nonhicrarchical modes of social interaction and nonstate actors engagccT in g~;,-;;;~;;;;~: :~ i;~~~~d: ~s rhc ~,;;prers ..iJ~ ~!;is volume. t.iem~n~tme.
Institutional state weakness implies that public-private partnerships or even

~~ J~<>}~it:U~:=toJ:;i~s of gpvernancc. arc becoming the rule rather than the

-~~~~~~tion, .if--------governance services arc. supplied at aU. While public-1)rivate
.. --- -- - --------- "
. . . . .....__________ ------- ---- ---~-

l';~~ps incre::::_!~~ly_ :.?mJ215:~1~J_ l_t ~l a:":~i_<:_.!a_t_c_fil.!1qj<.!.nS in \1\Testern de-

vci~E_~~t~l~~s, !"hey hav:_to -~~~~t~L~I5.-~: ~~~ t~t~ -~~~~_kQeS_:'!~~- in areas o f limi ted
~1_;1!:~!2~~ll_<.i , l~ir jJl_ L'~!:~~ -<Jf.~I_Je tcni~<lJ:y, in p()licy sectors, or with regard to

1'~0.1~.J?.~} 1i<:.>n .
l(> begin with, the chapter by Sebastian Conrad <md Marion Stange. provides a historical perspective to the discussion of governance. in areas of limited st:,Jtchood. In the long history of statehood, the id eal type of the "Wcstph;Jiian system" frcqucmly evoked in definitions of govcrnan_cc was probably
the excepti on rather than the rule. The chapter discusses what the longer
genea logy of forms of governance impli es for cu rrent debates usi ng the example of colonial swes. Conrad and Sta l~-~_J:gt!C!ba_LPUdcr.<.;o J)diti ous of
colonialism, statehood was consistently dcpemlcrlt" upon nonst;!l_c .actors. and
t l~fJZg:it{~>~; jJTtl~l~~r ~r~d a~~~~ori_t:)1_~2 _tjlc~n. ~s a ~esult, the distinctio n
~~~;~~-~ "!lublic'' and "private" actors that has been central for_tl1~ __ gl~V<;}"~_
11 a;1cc c~nccpt-a.;;r-ri;sctc\;Cfoj)ed in,)oTfr~c~T~~~i-~~c_c_,_}~:i~-~~~~~-~!JrJ?E?_l:Js!.,l ~
;Jtic. Mo~~;-\~e~,-tiJC ch~il;~~~;tgg-;;~~- cl~;t we cannot start understanding the
g~~rn:mce problcm:nic in areas of limited statehood witho ut taki ng coloni:1l
legacies into account, which is also highlighted by postcolonial studies (Conrad ;nJd Randcria 2002).
U ighlighting the role of nonstate actors in governance and p;lrticularl y in
rule making cldlcngcs our understanding of law as wedded to the state. In
the German context, f(Jr exa mple, rule of law tTanslates into Rccht.utnrrtlic/;l<cit
(bw of 1hc state) as a result of which human ri ghts, predictability, and th e

business tr~msacti ons among diamond dealers in New York, the Ameri can cotron market at the. Memphis Stock Exchange, the transi1at:ici!JaJ s-1J"qrts law, and
the various trans nation al standard-setting bodi es. These exampl~s constitute
rule maki ng by 11o nstate ac tors thJt arc self-enforc ing and do not require state
regulation in order to be effective. I Tow ever, as Schuppcrt argues, it would he
misleading to analyze these form s o fru.lc making J"i-o111 a perspective that treats
rhc private and !"he publi c as polar opposites. Jn this sense, he agrees with the
historica l anal ysis by Conrad <Uld Sta nge. Law by the state is entangled in many
instances of private ru le makin g - if on ly by providing a "s hadow of hierar-

chy:'' At !"he same tim e, reputational concerns and the embedded ness of private
rule making in social o rders can m ake. "law w itho ut a state" self-enforcing,
w!~i~~-~~ -~~~ctl y what Bi:>rzcl e_t al. argue -in -their cT;aptt~c;~~-i:hc "Z(;;;~Tit;OllS
under which com pani es engage in environmental self-regulatio n.
- 'Ili"C..sttbsequ cnt four chap~~ r~ de;; , with th ~ g~vcrn ance role of non state
actors in areas of 1imi ted statehood fiom va rious em pirical perspectives. :.rhc _
ch,lpler by Sven Chojn-:1ck.i and ?.cljkn Bra no1ic takes o n a particularly hard
cas:~)~~~=~!i!.~ ~~ith~Ji~~-~;;cii ii~~~;~~~i;;~wh ich ~~c t;~~~; .'1': 1n > ile~i (w:-r:J i her
han a<; a >ri \'al"iJ-ed good em he prm idn l n >cJl un der the most adve rse con-

~irions of Ji~1glfs_- fai!i~~~:-:;;;;t_{~i~fs_ta_~c0,_. State c~)If,ll;:se and~;m~d con flict

give. ri se to areas where security is provided selectively by a va riety of state,

( ' I~:_.

'}, j

~~-- f

-:

tr ~ t;_ ..l . ; ~

J
"{' /

I ~

t r; l.l''

, ('! <--'1 ,;

(.!

' : /Vi!!
':"l . ; :. ! ;-

quasi -stare or n o nst~te actors. Tn order to systematically ditferentiatc and analyze the provision of security in areas of limited sta tchood,_.~lc autho rs trace
sever;1! modes of security leadin g to va rying forms of security govern ance
(security as a public good, as a club good, and as a private commodity). 1he
chapte r uses the analogy of the market t"O argue t hat the emergence of dif~
--~ ------- --~-~-

ent mod es ot sccunty results from strategJes o( collecti ve actors o n ha:1-ardo us

Ji1:i.i1crsofpr~l"hesc arc Ji~c rized by areas whe re diHcrent public
a~v;1rc actors compete over t:erritnri:1l contro l, natural resources, and rJ1e
r~~;;-ent-of members. The emergence of .~ecuriry governance dcpenLl~ -~n
ccononJic amfi~eographic opportunity st ructu1-cs and o n the expected utility
t:o invest in prod uctive means instead or unproductive arming and fighting.
The authors then discuss the conditions und er whi ch even violcm nonstate

tYt ct f vt e ~:,
OJ? rch'th or"l
I

.: )!";
~

"i-:
22

'

[ ntroductioJ l

.md Overview

l;O\'CrllJrl CC

in Areas

or Lim itcu Sto1tchood

23

actors such as warlords or rebel groups ~cc m it in their i1Jt e rc~ t to provjJe _

need to protect brand names and to target hi g h-end markets, exposure to

, cc urit y , s . public good lor a given population. C hojnacki and Brat~o~ic

cl<lim, .therefore, tha r srabk s urity g vernance \\;;thot;t a state is possible

]'!GO campaigns, efforts to keep foreign competitors with low regulatory

standards out of the home market, and, finally, strict home- co untry regula-

ev-en-Lmdcr sccm1ngly-~1-Jvcrse conditions of fragile or failed statehood.

rions in the case of multinational corporations. The chapter concludes tJ1at

--,l~t~ chapters in this section d~al with the provision of pub-

there arc good rational reasons why firms should contribute to environmen-

or limited

lic goods in the issue areas of development, public health, social services,

tal governance, even in areas

and macroeconomic stability in areas of limited statehood. Andrea Liese

hierarchy is weak or noncxi~rem .7

statehood in which the shadow of

and Marianne Beisheim investiga te transnationa.l public-private partnerships

The chapter by Henrik Enderlein , Laur:~ von Daniels, and Christoph

(I'PPs) to implement the Millennium Development Goa.ls ofthe United Na-

Trebcsch examines a different type of private acto r, namely private creditors

tions in <li-cas of limited statehood. 11-amnational Pl'l's spread significantly

of developing countries. The public good under investigation here is mac-

in the 1990s and can be found in all policy areas. The study investigates the

roeconomic stability in the fa ce of sovereign debt crises. Many developing

effectiveness of twenty-one l'PPs in providing governance in the realm s of

countries rely heavily upon finaneiaJ reso urces provided by private creditors.

public health, food, and energy for developing countries. The authors evalu-

Consequently, in situations or finan cial distress, governments and private

ate various hypotheses taking fiom institutiona.list and compliance approach-

creditors often en ter a complex strateg ic interaction. From th~ perspective of

es in international relations. The chapter demonstrates that eDcctiveness of

govcrnmciJts, the key focus of this interaction is the provision of' macroeco-

l'l'Ps is highly correlated with the degree of institurionalization of these

nomic stability in the developing country under the constraint of servicing

partnerships, particularly with regard to service-providing and standard-

ex ternal debt. From the perspective of private creditors, the key interest is

setting partnerships. This confirms arguments taken from legali zation re-

to limit losses fi'om potential defaults. In other words, while the chapter by

search according

which high degrees of obligation and precision of norms

Liese and Bcishcim concentrates on cooperative relations between st<HC and

arc conducive to compliance (e.g., Coldstein et al. woo; Zangl zooS).

nonstate actors in the provision of collective goods through PPPs, Endcrlein

In other words, in s tittition~tl design m~ltters and induces nonstate actors

et al. focus on much more conflictive public-private interactions. Their sta-

to

in PPI's to contribute to the provision of coJJcetive goods. But Liese and

tjstical analysis of government behavior toward private credirors shows that

lkishcim also show ihat the process management of the PPPs intluences

Jirnitcd statehood-weak reg ulatory quality and low governm ent effcnive-

their e!Tcctivencss too, while - interesringly enough -- stakel1olc!er participa-

ncss in this c.1se - - is hi g hly correlated with aggressive gove-rnment: behav-

tion appears to be less important.

Arguing from a strategic choice approach, "[mja Borzcl , Adrienne 1-Icri-

with high corruption and weak rule of Jaw. ln contrast, neither democracy

ticr, Nicole Kra1n, <UJd Christian Thauer reach similar conclusions as Liese

nor political violence o r stability arc correlated witl1

io r toward tl1eir imernat:ional creditors. The same holds tru e fo r countries

~ggrcssivc

gove rnment

and Jkisheim with regard to the preparedness of multinational and other

behavior toward private creditors. In some, t:he weaker tl1e stare, the more

companies to enter a regulatory race to the top pushing f(x strict environ-

it drives <1 lurd bargain toward its imernational aml private creditors. The

mental regulations or even engaging in scH~regulation. Their argument runs

chapter shows that eve n weak and heavily indebted states arc in the driver's

coumcr to the conventional wisdom that economic globalization necessarily

scat when it comes to negotiations with their creditors.

leads ro a "r;1cc rot he bonom" among countries (f()r :1 simibr argumcllt sec
Prakash woo; Prakash ;l!ld Potoski

20 0 6 ).

Empirically, th e chapt-er examines

sclcctnl firm s in the automotive, food and beverage, :111d textile industTies

Jn sum , th ese ch<1ptc.rs yield d1e ldlowing conclusio11s with regard to the
propensity of non-stare actors to comributc to govcrn <1nce in areas of limited
state hoo d:

in South i\friG1 with regard to their propemiry to engage in environment:~!

product or process regulation. The study shows that certain E1ct:ors explain

1. Areas of limited statehood arc nor "ungoverned" o r even "tlili'Ovcrn:lblc."

why firms engage in providing cnvironmcntaJ governance thro ugh either

In fa cr, governance is somerimes provided even under rarh er ad ve rse conditions

sell~ regulation or pressing f(:>r stricter state rules. These bctors include the

of fia gilc or f:liling statehood. Under p~~ioi~~~~~:~~~l~~~;l~Kcs, ': ().l,l~!."::.. ~t~r~:::: ..

-------- ------------- -----~-- --- ------ --- --':?----------

~p
~

24

t"'J

'"

Introduction and OveiYicw

c;ovcmance in Areas of Lilllitcd Statehood

'5

become governance actors in t11at t11Cy arc systcmati<:_~jv eng:1gcd in mJ:_~~~ki~1g

that similar phenomena arc all too common in the globJ.l South (on multi

or the provision of collective goods.

]eve! governance in the VVestcrn context see, e.g., Hooghc and J\1arks zoor;

~rnancc without a s!ate dcp~.!.:~'-~~.~1[tic~_J!:_ScJ!p.c

Hooghc and lvlarks 2003; Kohler-Koch and Eising I999; Benz zoo+b).

conditions ;md on incmtivc stn~:;t~E~.~~-~~lt:cirJgn.ons.t~tca~tgr~ such !IS firms or

Three chapters in this book tackle the nmltilcvel dimension of governance

even warlm:ds ;;~;.j;[~-;J~:;;;[ls.to con~t:iL:u.rs..tP. go_ycrn~ncs_:. TI::sc scope concli-

in areas Jimired statehood. Bernd Ladwig and !kate Rudolf argue that rather

tic;~~;;~~!~~Ec~~;id~-~~~;crion~I:q:t!valcn~~E~r~_st_aE~ ~':'1Jac~o~v_c2Lili~ra;~h)~'

ambitious standards of good governance, including human rights, the rule

~-is svstcmatically lacking or even missing in areas of limited statehood.

:l Lrst

bur-;1 ~t ie~~t,

the ci1alJters also dCJJlonstratc tEat

tlJc_~t~tc_~:~~s_a::

of Jaw, responsiveness, and public participation, arc already part of positive

__

international law and that they can also be justified by a rights-based approach

not absent in areas of limited statehood. The debate is not between either gover-

of political morality. These standard:; interfere by definition in the "VVcstpha-

nance bycl;~;ta~c ~-rcl;~ ~on~pl~t~p;.ivatization of governance services. Rat11er,

]ian sovcreigmy" of states insofar as they constitute an interest of the interna-

rJ 1c_:nlJ~irical C9_J1tributions to tl1is volume show the various forms of interactions

tional community as a whole in the in tern a I afl:1irs ofsratcs and arc preemptory

,u2.cU:_arg~ining rc;lationships between governments and nons tate actors. In some

norms (iw crLrrens) that arc obi igatory for any country in the contemporary sys-

cases (sec chapter by Endcrlcin ct al.), even hostile interactions can contribmc to

tem. At the ~~~~~i:_1:~' h_C:~V-C\':!, iJ:t~!~nati(~na!}a'V._as~umcs[~llyconsoli_d~~rc,d

states that are both will~ng ~~~:!..~::J..l~~lc:_ ofc:o.:lljllyi!lg ~~~i_th_ tb~~S:-~10rt1!.s~ Irltc.rnational T:1\\raTSOl;r;;~~pposcs the existence of a collectivity for which decisions

the provision of collective goods, in tl1is case macroeconomic stability.

on be made and the existence of J political authority that has the ultimate

Multilevel Governance in Areas of Limited Statehood:

'fhc Role of External Actors

responsibility for such decisions. I-1c~1-~~b.. ~It]Jlcn~s ar.-c n~i:'ising_in areas

oflimired stat:chood_;1sa ~-csuit. of which ~1compktely statc:_centr:jc appro,1ch to.
ensure compliance with international law misses the marie

Governance in areas of limited statehood regularly involves international

Ladwig and Rmi'CJ!f then explore the qt~sr-ir-;;;-z~) bc:,1rs a subsidiary

and transnational actors in providing basic services and supplying gover

responsibility for guaranteeing minimum srambrds of good governance in

nance. This includes foreign governments, international organizations (such

areas of limited statehood. First, the intcrn~Hional community as a whole

as the United Nations and its suborgani?,ations ), as well as transnational

has accepted its "responsibility to protect" in cases of SC\'erc violations of

.''
I

nonstate actors, such as multinational corporations, NGOs, .or transnational

governance standards as part of its commitment to internat ion;Jl peace and

Pl'Ps. The involvement of int~~ and .~~~..i!f!lliE..i.!Lgm:f!Jlilllc~r_e:

security. Bur this responsibility by other states is se\'crely circumscribed by

suits from necessity given tlJC state weakness in these _cout2!2jC:~.:.JD. m.Jny_
casl.~s:1; 1-[c;:-~1;-d;;,~;;~ati~;~;;r;~tc;r~-dit:ecti),i;J~~rf~r~ with the "Westphalian
sovereignty" in ar-eas of limited statehood, that is, they authoritatively rule

procedural considerations such as, f(Jr example, amhorization by the U.N.

Security Council ,1s a result of which a discrepancy betwem internal ional

law and moral obligations remains (sec the case ofKosovo in

1999).

Second,

in the absence of a consolidated state (sec chapters by Sclmeckcncr and Bro-

Ladwig and Rudolf me the principle of "agency ol' necessity" (nc;rotionrm

z;us; Krasner zoo+; Fearon and Laitin 2004-). In other words, shared sewer

gc.1tio) to argue th;Jt even nonstate

rignty is an en 1 p~ical ~~~tz_!!2._~!~~.L~l~~~~ tha_t_Jack t_hc_~bii~ty to sofqrce

limited statehood arc bound by imcrnationallaw if they exercise subsidiary

central decisions.
However, shared sovercignty::-th;_ divi~i_on ~I!~~- d_istributi<;n ol p_olitical

only he justified if the international community aims ;1t

auth;;;;l\' ;]l'J(;~s tt:;;iiSiJ;tio;;-ai, ;J~ti'm1al, ~nd l?cal !cycls-is precisely what

c.:c"mstitu~es "n;uitilcv~l govcrnaricc!' It prcvails_in areas of limited state
h~d i;1 the scrl.~e--th.;it ext:rii:;r;~;.~Jrs di;:;~ar.tici~~~~i-; ;;~ i?\rcr:n~ncc. It
;;-;:;:~ 11 ,{1Tc;[;j~

ifi:1tthc-cncirmrius literature

em

responsibility. They

<lr~ue,

~Ktors

engaged in governance in areas of

however, that this suhsidi;Jry responsibility can

recst,1hlishin~

the

matcrial, structur<JI, ami societal pr-cconditiom I(Jr consolidated statehood.

In other words, serious intrusions in the "VVcstphaliJn ,,overeignt( of states
that lack domestic ,mvcrcignty have to engage in orate building.

multilevel governance tb;Jt

However, state-building ell<>rts, particuhrly in postconllicr situations,

predominantly deals with the European Union (E.U.) has not yet realiz;ed

CKc their own problems, ;Js Ulrich Schncckcncr ,ngucs in his chapter. He

".(._i

0'-''

26

Imrnducrion and Overview

Guv<:rna ncc in Areas of Lim ired Sta tehood

analyzes various state-building strategies, such as "liberalization first,'' "se-

1 at establishing new institutions and sometimes even new forms of govcun

'

curity first," "institutionalization first,'' and "civil society first." Each of these

crnance, as in Bosnia, Kosovo, Afghanistan, and Iraq. Thus, governance be-

strategies inevitably produces unintended consequences. "Liberalization

comes an important part of state-buildin g strategies.

first" often underestimates the destabilizing effects of rapid democratization

However, the adverse implications of applying a \!Vcstcrn governance co n-

and market liberalization. In contrast, "security first" risks strengthening

cept to areas of limited statehood arc often overlooked in d1cse strategies.

rhc statlls quo, including the stabilization of authoritarian rule. While an

Brozus joins in Scbneckencr's criticism o f Western efforts at state building

emphasis on institution building tends to empower those elites who profit

and argues that detai.led knowledge of existi ng modes of governance in areas

from the status quo, focusing on civil society leads to the opposite pitfalls

of limited statehood is essential for the effectiveness of efforts b)' th e in -

by undermining local social structures. Schneckencr then argues that what

ternati o nal community. llii impl ies that th ~modern i zation p acbgcll..tha

all these strategies have in common is to overlook the multilevel governance

external ~c to rs try to "se ll" in-a rc;1s o f limi ted statehood, is not on ly hi g hl y

character of external efforts at state building. As a result, incompatibilities

problematic, bu t ho und to fai l. 1orcuvcr, the provisio n of governance by

berwecn the goals and time-hori zons of external actors, on the one hand , and

external actors might ;~ctually weaken already limited statehood further and

local communities, on the other hand , arc inevitJblc. Schncckencr concludes

clms undermine the "state-building" goal of establishing sel f-supportin g gov-

that cl1c key issue for extend actors is not how to avoid counterprod uctive

ernance structures. fJ3 rozus C.Ql1d udcs--th:n th e aim of the intc rn ationJ I com-

eflccts and unintended consequences of their interference in the domestic

mu~ ty -~J._area~ or.l~~:.~~~~-~ra_t!_1 o(ld ~ h c;:ld l~-;,,-W~~.;~;;~~-~:s h;j:;T,;g"):;i:J]cr-

sovc reignry of states, but how to cope wicl1 them. First and foremost, they

cl1~ n sta te bu ilding.

'-. -- -~

of the process and its dynamics. Since external efforts at stabilizing postconHict si1:1.1at:ions result in multilevel governance structures, the "imernationals"

The internationaJ legal order has csrablished standards of good govemancc,

have to rCJli zc roo that they arc bound up with the political, social, eco-

which includes human rights, the rule of law, and the right to participate in

nomic, and culrural developments on the ground. "Exit strategies'" amount

governance. These standa rds deeply circumscribe the "VVcstphalian" sovereignty

in sclf~betra yal. Rather, external actors have to understand that interventions

of states :mel include th e subsidiary respo nsibility of the international commu-

in the governance arrangements of areas of limited statehood change both

nit)r- be it states, intern ational organizations, or nonstatc actors- to help in the

those being interfered with nnd the intervenors. ln other wo;ds, govcrnanc~

governance of areas

travels back.
The concluding chapter by Lars Brows takes up these challenges ind
discusses th e co nsequences of the book's findin gs for international folign
and security policy. Current inrernatjonal forei g n and security policY, 0,fl2atcs
picture areas oflimited statehood as presenting security challenges t(fthe socalled developed world. ~<JS t o f' th e scciJ.Iri m di sc[lssc.d refe r to ch .1 llcnges
1n 11 1ting Jio m intn nJ tional dcs tJbiliza ti on because of co nfli cts spi lling-m cr
finm arc;Is ufl imircd statehood. Terrorism, organiz.cd crimc,._<l!_ld mass move-

~-,

,.".

In~~~;:;:;, ii~~ fi~al three cluptcrs make th e followin g points.

have to underst;U1d that th ey arc not external to loca l developments, but part

1\

or limired statehood.

The "sratc-buildin g" eff(>rts by externa l anors in

posrc~nf~i~t:._ situations

have rarely rcsult.cd in establishing li.Iily consolidated states, but have instirurion-

alir,cd

m~thilc.v~~l

governance srructurcs in which external actors become parr and

parcel of "local ' governance and 111 whtch shared sovcrc1gnty

IS

the rule.

At this point, ho weve r, we have com e fi.ill circle: Ladwig <md Rudolf
argu e in their chapter that the only moral and legal jmtification for external inte rven tion~ in ~rca s of lim ired starehood can be to fi:Jstc r c!fectivc and

ments of people arc noted [requc!Jt!t_~s. C<:_Jt~~~e..':l~~e_n_<:~s. :L0._ ~~1!!:~t2~J:Ll<,:~c

sclfsu staincd governance, that is, sl"at:c bui !ding. Schm:ckcncr and 13rozus

challcngcs .pc;~,;c;-J!Ii actors such as the United ~.t;Jtes OLQiel~~'I"9~2GULUnion

demonstrate in their chapters that" suc h efforts

have d c;.rJ; ,pc~J security Sti"J tegies with a specifi c

areas of limited

invol vement of extcmal actors in mulrile vc l gove rn:mcc stru ctures and that

sta tehood. Tni.Ci iiatioii;1! iiitcr\'el-l tions diller widely with respect to their de-

"quick impact" strateg ies arc illusiomry. lf we accept their point that gov-

grec of intensity. While most interventions arc mandated restrictivel y, some

ernance in areas of limited statehood is multilevel governa nce by definition

fi.JC US O il

inevit~bl y

result in the dee p

~r

l_:,

:''

20

Introduction and Overview

that also involves nonstate actors in a systema6c fashion (sec the chapters in
the second part of this volume), we may actually witness the emergence of

c;ovcrnancc in Areas of Limited Statchoud

'-9

transformation of modern statehood. Thus, exposing the governance concept to areas of limited statehood yields new insights with regard to governance under conditions of consolidated statehood.

new political and social orders in areas of limited statehood.

These issues do not only have academic and tl1eorctical implications, but
also far-reaching political and practical consequences. First, the international
community is oriented almost completely toward the ideal of developed and

Conclusions

democratic VVestcrn statehood in its state-building efforts and its democrati-

This book ,1rgues that the social science debate on governance implicitly or
. -1 .
,,,cdded to an ideal t"]1e of modern statehood-with full
cxp!Clt)'
IC 11131 115
,
!
,
,
l
-, . ,,e 1eignt" and t11c canaCJt)' to make, tmplcment, and enforce deocIomcstK so
~ 1 '
'
- r . a glol1tl as well as a historie<lilxrsoective, however, the modern
s1ons. -~1 0111 ' ._

<-

.::

Western nation-state constitutes the exception rather than the rule. Outside
ucD world we find areas of limited statehood that lack
tI1e cl eve 10 pCl l O1 "
'
. vcret'g11 tu Under such conditions, g-overnance requires the incluLIomesttc so
~ ;- .f
stJtC as ,11ell as external actors in the nrovision of collective goods
StOll 0 lll11 ]. '
'
t
~
and the regulation of social issues.
Yet, our conccprual apparatus is ill-equipped to deal with tllC governance
proo'-I ema t'tc- 1-11 ,-1rc,1s of' limited statehood. The
. Western
_
.governance discourse
1 llea\'t-1)' int1ucnccd b)' modermzatJon theory, but also assumes
JS not on y
'
.1. tcJ1oc1c' and 1 full\' functioning state as a background condition. I
mOtl ern s a
-'
'
.
have tried ro illustrate this point with regard to the applicability of the gov- cpt tc> a1c1s cJf limited statehood. In ]Jarticular, I have discussed
crn;mcc colll
' '
. 11-j1 1-cnard to the distinction between tl1e "publit:" and the "pripro l1 Iems w
-b'
_
.
_
_ _
.. " . l -co the im]1licit mtennonal1ty and normat!Vlt')' of the governance
vatc sp JCI ,,,
- . 'l't . Li concerning~ the "shadow of hierarchy."
cOnlC , 111
'J'l liS
( 1.
- , -on '<1f1JKars to demonstrate that, on the one hand, governance
ISl 11551
II
- ies - scrul concCjJtual tool to stud)' [JOlitical issues and the provistt proVll . 1 11 1 '
_ _
_
_
. !' . llectt-\'e goods in areas of llll11ted statehood. ln parttcular, Jt reston o co
~

't"tc-cc 11 tric bi1s in the study of1Jolitics and focuses our attention
moves t Ite s "
'
_ t t, --cJn of nonstate actors as well as on nonhierarchicalmodes
Ull t IlC LOll 11 ' 111 1
'
S l'a so oood I On the otl1cr hand, d1e ability of the governance
o1 stccrmg. , c1 ' 1, to

concept r-o travel to areas of limited st;Jtchood has its own limits. Discussing

zation and development strategies. If, however, areas oflimited statehood arc
here to stay J()r the time being and become the rule rather than the exception,
this strategic oricmation of the international community becomes problematic for practical ~1s well as normative reasons. If governance in areas of limited statehood requires the systematic inclusion of non state actors, a rei iancc
on nonhierarchical modes of steering, and the continuous involvement of
the international comnnmity, we need to figure out the scope conditions for
the success and C1ilurc of these "new" modes of governance. vVhat alternative
modes of governance can we think of that provide functional equivalents of
modern democratic and developed statehood without constantly assuming
the Western model as the underlying cultural script>
Second, we need to think aJ2C:'\~-a~~Jli_t_~he_jntcr!l;ttioi~~LtJ~!l~ocratj;ca!i<_:n,

~~~l<_pJ:lCll!:,_ii1;Cit.1tf]~_n!fdiuggra1egics, if on])'. to cout~tc1: thc_:,:icl~-~E!:c.~d __ .

suspicion that "good governance" is nothing else than Western neoCl)]Q~lial:
- ----------

-- -------~------------

- - --- _. ____ --------------------------~

....

~m_j~.J.i;;.c. As this book demonstrates, state-building efforts that simply

try to reproduce the modernization pacbge of rhe vVestern developed and

liberal nation-state in areas of limited statehood arc bound to fail. Rather,
d1c i11tcrnational community shouJd help to improve the capacity of states to
enforce and implement decisions and to sec to it that the preconditions of
governance arc enabled in areas of limited statchood. 8 This implies a "light
footprint;' but also requires more innovation with regard to strengthening fl.mctional equivalents to consolidated statehood (Draudc 2008; Hijrzcl
2010;

chapter by Brozus in this volume).

Last but not least, this book argues that multilevel governance, including
shared sovereignty, is the reality of governance in areas oflimitcd statehood.

,
cJc conditions of limited statehood reveals several blmd spots
crovcrnancc l 111 1
'
~~ith rcpard to implicit ;UJd explicit theoretical and normative assumptions.

Thus, the global North is deeply entangled with the global South, and vice

'J'I . , ~~.
l tions concern the modernization bi:~s of the governance conJcsc assum 1- --c -J)' used in the social sciences, which requires some conceptual
ccpt as cmt 111

_
_
:
"1'1 csc 1-JltlOV'Jtions however nught even shed new ltght on the
tnnovauon. 1 '
'
c'
'
~

and political pitfalls when governance travels to areas of limited statehood,

versa. As a result, we need be aware not only of the conceptual, empirical,

but also of the consequences for the global North when governance travels
back. This book c;m only serve as a starting point for such an exploration.

,,

t~

~0

lntroductton ,1nd Overview

Governance in Arr:.t'-1 of' I

I. I iJJJnk Tmja Biirzd .1.nd two .monymous ITIicwcrs

very useful cornrnCIJtS 011

the draft. I also thank Lars Brozus, Ankc Draude, and Ursula Lehmkuhl for numerous
f(Jr

discussions on the topic of this chapter.

This section builds upon Risse

2005;

Risse 2008; Risse and Lehmkuhl wu7.

3. Weber's notion of legitimacy witlt regard to the control o1u the means of vio-

iciKe should not be con!i.Ised with an empirically derived notion of <Jicgirimatc order
th:lt is considered just and fair. Rather, "legitimate monopoly over the means of violence" conccrJJS the claim that the order is legitimate.
.1. Data fi"orn "Derailliene__ Wertc_BT!zow.xls;" www.hertclstnann-transfonnation

-itKkx.dejhtijnmk.iltg/.

5. !Jere, 1 follow tlJC usual definition of collective goods as characterized by nonexclusive access and/or nonrivalry in comurnption. At least one of these conditions
has to be present for a good to CJllalifJ' as collective or common (sec 1-It'ritier 2002).
(J.

Note thar the effectiveness and problem-solving capacity of governance is not

part of the definition. Jnstillitionalizcd intentionality toward regulating social issues

and providing collective goods is all that is needed.
7. While South Africa <Js an emerging economy certainly docs not qualif\' ;~s a
j;1iJing state, it represents a good cxarnplc of limited .;ratchood in a particular policy

are<J-environmental protection in rhis c.1se.

R. Note that strengthening state c<Jp<lcity is not the same as establishing the state

Inonopoly over the means of violence.

siiSL1ine~hle

,St.ncllo1 ld

~1

-~. 20 u4a.

NOTES

2.

.imitcd

u; for example, international actors.j1rovidc

security in .1rc"s of limited statehood, a fully consolidated state is not re-

quircd to enable. govcmance and the pwvision of collective goods.

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CJo, no. 9:6-12..

___ . woS. "Rcgicrcn in ]\.au men bcgrcnztcr Sta;Jtiichkcit: Z,ur 'Rciscf:ihigkeit' des
c!ovcrnJJKe-Konzepts}' In Gorcmancc in cinrr .rich JJ1andclndm 1Vclt, edited by
G1mnar Folkc Schuppcrt and Michael Z,iirn, H9-70. PVS-Polirischc Viertcljahrcsschrift, Sondcrheft +t, Wicsbadcn: VS Verlag fi.ir Sozialwissmschaficn.
Risse, Thomas, and Ursula Lehmkuhl, eds. 2007. Rcgicrm olme Staat? GoPfl71ili1Cc in
JUiumcnlH;_qrcl/zlrr StantliriJhcit. Baden-Baden: Nomos.

'
Rotbcrg, Robert I., cd. :z.oo;. State Failure und State 1Ymfmc.r.r in a Time o( Terror.
Washington, D.C.: Brookings Instinnion Press.
--, cd. 200<j.. J.TllJm Stales Fail: Crmsn and Consrrptmcr.r. Princeton, N.).: Princeton
UniYcrsity Press.
j'l'farco. In prepararion. "'11-ansnatiunal lle;Jith l'armerships in Areas of

Sch:ilcrlwfl~

Limited Statchood-llow Much St.ne ls Enough?" Ph.D. diss. Fachbcreich Politik- und Sozialwisscnschaftcn. Berlin: Frcie Univcrsitat Berlin.
Sch:iJcrbofl~ Jl.lJrco,

Sabine Campe, and Christopher Kaan. 2009. "'li.msnation.ll

Partnerships in International Relations: Making Sense of Concepts, Research

Frameworks, and Results!' Illlcmatirmal Swdics RtPirw

11,

no.

~:4_11-7+-

Scharpl~ Fritz. 1\193- "Positive und negative Koordination in VerhandJungssystemcn."

Tnl'olic)'-/lnaly.rr, edited by Adrienne I-lcritier, 57-R~. Politische Viertcljahrcsschrift,

Sondcrheft 2-1-- Opladen: Wcstdeutscher Verlag.
Schncckmcr, Ulrich, cd. 200+. States at Ri.ril: Fm,JJifr Sta/llmals Sic!JcrhciL'- und btl-

.ll'iddtmg.rpmblcm. Berlin: Stiftung Wisscnschaft und Politik.

Sclmppert, Cull!l.H Folke, c.d. wos. GoPcmmtce-Fm:rcbtn!fJ. Vnlfcwisscnll!ff ii/Jcr Slam/
11 nd

J;mwiclzhn(IJ.rlinim. Badm-Baden: Nomos.

mcnt under Gi\.Tf ami the \VTO." lntematirmal Studies Quarterly 52, no. 4-:X25 -11-
Zangl, Bernhard, and Michael Z,iirn, eds. 2.004-: Ven-cc!Jtlicbttl~!j-Bmutcill fzir Global

Cambridge: Cambridge University Press.

GoPmJmnc? Bonn: Dietz.

Zurcher, Christoph. 2007. "vVhcn Governance i'ilccts Troubled States." In Stolllszcrfall!md GorC/7/ancc, edited by l'vlariannc Beishcim and c;unnar Folkc Schupperr,
n-28. Baden-Baden: Nomos.
zurn, Michael. !998. RCJJiacn fcwcit.r des Natirmal..-taat.c.r. Glolmlisicnn(IJ und J)enation-

ali.rimll(IJ al.r Cba11ce. Prankfn11-am-Main: Suhrkamp.

- . 200.1. "Global Governance.'' In Grncrmwcc-Fondnn(ff. Vn;;vwisscnll(fJ itbcr Stowi

u11rl J!ntJPiclzlm!ff.rlinim, edited by Gunnar Folkc Schuppert, 121-+ti. Baden-Badcii:

Nomos.

Governance and Colonial Rule

SEBASTIAN CONRAD AND MARION STANGE

N RECENT YEARS, GOVERNANCE HAS EVOLVED INTO

a key concept in political science. The term is used to refer to processes

and structures of regulation and rule that are either not at all, or at least

not primarily and exclusively, based on hierarchically organized government

action, but instead involve nonhierarchical modes of action by private,

semiprivate, and public actors. According to the broad definition of the

concept, governance is understood as the "col.lcctive regularization of societal
matters" (Mayntz 2004, 66 ), thus comprising all agents contributing through
their collective actions to the creation of public goods. These actors can be
official government- institutions as well as private persons or Jssociations.
Originally applied to modern nation states of VVestcrn provenance in
order to conceptt~aily grasp the increasing adoption of classic state fimctions
by private actors, the concept or governance has also proved to be useful
in understanding modes of political organization and regulation in areas
of limited statehood-that is, in areas in which core clements of modern
statehood like effective territorial control or the state's monopoly on the use
of physical force arc ahscllt. Bowevcr, such limitations of ceutral authority
do not only exist in many count-ries on loday's world map but can also be

(;ovcrnance and Colonial Rule

+I

observed when looking at forms of political organization in historical per-

in wclay's \"/estern societies but proves to be inadequate in the study of co-

spective. EspccialJy when studying modes of governing "before the state''-

lonial rule because of the often hybrid nature of agents involved in colonial

that is, in premodern and early modern societies, and, most conspicuously,

governance. Likewise, because colonies in many cases lacked clear territorial

when dealing with colonial rule~histor'i<UJs discern a plethora of governing

confines and often comprised a wide range of diflcrent ethnic groups with

practices that can only very inadequately be described by categories derived

u1eir own respective legal systems, it is not always possible to unequivocally

from the concept of modern statehood. Because the colonizing powers' cen-

determine the governance collective, that is, the group of people who were

tral authority was debilitated by a diverse set of external and internal factors

addressed by governance. Since these arc conceptual problems arising not

in virtually all colonies~whcther in early modern times or during tl1e age of

only in the colonial context but also when looking at many of today's hagilc

high imperialism ~the colonial state can be understood as a prototypical area

of limited statehood. As a result of its wcalu1css, it was h_ighly dependent 011

or failing states, the historical perspective can help to sharpen the concept of
governance in areas of limited statehood.

the involvement and cooperation of nonstate actors, in particular among t1 1e

colonized, to establish and maintain effective rule in the colonized territories.

ute to a historicization of the concept of governance. By shedding light on

By offering a wide perspective on governing modes that arc not limited to

the variations in colonial political organization and on the diversity of ac-

This chapter therefore has a threcf()ld aim. hrst, it purports to contrib-

hierarchical rule exerted by official agents but also comprise alternative forms

tors, historical research thus serves as a corrective, demonstrating that the

of governing, the governance concept can thus be of usc in the study of colo-

''new forms of governing" postulated by political scientists who srudy the

nial rule. Governance provides a systematic approach to the question of the

changing character of statehood in OECD countries arc not so new after

"how" and the "who" of political organization in historical perspective. Fo-

alJ. The governance approach allows for a perspective on colonial governing

cusing on both the processes and the agents of governing, the concept allows

cl1at illustratc;s the historical contingency of the I'Ve stern model or centralized

(()r a comprehensive study of political rule in tl1e colonial context. Gover-

statehood. As a result, the widespread notion of consolidated statehood as

nance can thus be fiuitfully linked to recent developments in historiography.

the necessary culmination of an evolutionary process that all politics pass

This literature stresses, first, the proccssual and negotiative character of early

through is challenged, resulting in a fl-esh perspective on alternative forms or

modern political rule. A good example for this trend is Greene's work Nfii]o-

governing in today's areas orlimited statehood.

tiatcd Authorities in which he argues that power was not a fi\ccl cor1stant in

Second, we would like to argue th;lt a crihcal reflection of the governance

colonial American politics but imtead had to be continuously negotiated and

concept's applicability to historical contexts

renegotiated between the rulers and cl1e ruled (Asch and Freist 2005; Daniels

sights both fix historical research and political science. By linking the go\'-

Gln

provide important new in-

and Kennedy 2002; Greene !99+; Hindle 20oo; Meumann and Prove 200+ ).

crnance approach to the study of political organization and rule in colonies

Second, governance also ties into clu~ rich historiography on formal versus

as prototypical areas of limited statehood, this chapter seeks to illuminate

inf(Jrm;ll empire, which essentially discusses the problematic of delegation of

the potential benefits as well a' the limitations of rl1c concept when used

<lllthority to nonstatc actors (Dimicr 200+; Doyle 1986; Louis 1976).

in historical research. After a discussion of the specific conditions of rule in

It is important to note, however, tlut since the governance paradigm has

tl1c colonial state, the chapter thus deal' with the problems that historians

originally been developed against tbc background of the VVestcrn nation-

incur when applying the governance concept to the colonial context. Bring-

state, notions of modern centralized statehood arc necessarily inherent in it.

ing to light the underlying notions of modern 'tatehuod still inherent in the

An indiscriminate transfer of the governance concept to colonial contexts

concept, the chapter's third section f(xusc' on the bin;1ry differentiation be-

thus carries the risk of reiterating the mistakes made by earlier generations of

tween "public" or "state" actor' on the one hand and "private" or "nonstate"

historians who uncritically applied modern notions of statehood to historical

actors on the other. Thi, is a distinction that is at the center of many current

contexts. A strict classification of governance actors along the lines of"pub-

governance dcb;1tes but which proves to be inadequate for the colonial con-

lic" and "private," fc1r example, might be useful in the context of governance

text:, where the role of actors involved in political organiz;1tion was often of a

::r.,-:.p

Insights ti01n Low and llistoty

hybrid nature. By thus challenging tacit assumptions inherent in the concept,

Especially in Africa, colonization introduced a completely new principle of

JiticaJ org<mization (Herbst woo).

historians can contribute to a further adaptation of the governance concept

10

so as to increJsc its applicability not only to historical contexts but also to

f But recent scholarship, with its focus on the everyday dynamics of colonial rule, has rclativizcd this macro perspective. Indeed, it has demonstrated

modern-day areas oflimitcd statehood.

Third, we argue that present-day predic<U1Knts and peculiarities of rule,

tbat in many respects, colonial control was limited and that the colonial sL1te

in particular in areas of limited statehood, may be intimately linked with

was not abk to exercise a monopoly of power. To be sure, any gencraliz.a-

complex historical genealogies. This perspective enables us to shed light on

rion needs to lake into account the great variety of coioniaJ experience. The

the specific preconditions and historical origins of governing practices and

Jaws ,md regulations that were applied di!Tcrcd greatly fiom one. colony to

conflicts that can be observed in present-day postcolonial societies. ln many

the next. The structures of coloni;l] power varied according to rcgion:rl dif

cases, legal traditions, political structures, and societal cleavages can only be

fcrcnccs and diJTCrcnt types of colony, and they f(JJlowed different chronolo-

understood when taking into consideration these countries' colonial pasts.

gies. They were also aiTcctcd by local geogr:1phy and by the dynamics of local

Although this historical dimension is of particular importance when looking

societies. The level of control desired by the colonial state. <liso depended

at today's areas of limited statehood in former colonies in Africa, Asia, or

on the objectives being pursued for each colony-in trading colonies like

Lat"in America, it can also tell us a great deal about the roots of governing

Hong Kong or Togo, the state's presence was limited to a small number

practices, ethnic divides, and legal systems in a country like the United States

or administrators,

where colonial rule ended more than two centuries ago.

of settlers and the demands for labor by landowners led to the state taking

while in settlement am! plantation colonies the presence

more control over loc:rl territories. Last but not least, colonial governing
practices and structures and the power of the colonial state varied according

The Colonial State as an Area of Limited Statehood

to the time period in which coloni7>ation took place. While late nineteenth-

The colonial states were set up on the belief that the model of the European

modern statehood in the colonizing countries, this was not the case with

st;ltC system could simply be applied to the colonies. But the practice on the

regard to premodern and early modern European colonies, i<.H example in

and early twentieth-century colonies were ruled against the background of

ground turned out to be very different fiom the theory. "~'he colonial state

North America. Here, the limitations of centralized power were not only

was not simply an extension of the western Europcm model, but, as Jiirgen

determined by the distance between colonizing power and colony and by the

Osterhammcl suggests, "a political form in itself" (1995, 62). JVIorc impor-

long lines of commtmication this distance entailed, but also by the absence

untly, even during its heyday in the age ol high imperialism (I8RO-I9I4),

of consolidated slatehood in Europe where sovereign nation states basing

the colonial stare was essentially a weak st;ltc. It was therefore dependent on

their authority on an institutionalized fc>rm of abstract power were nor vet

f(mm of go\'ernance in which power was delegated to local actors and native

existent (Lchmkuhl2007).

potentates. The acknowledgement of the instability and uncertainty of colo-

In spite of this great diversity, it is possible to discern some general pat-

the

terns of the specific weakness of colonial power. The following account ex-

traditional view of virtually tmlimited state power in colonial settings. And

amines the difTcrcncc between the modern state, defined by Max VVebcr in

nial rule is very much the result of recent scholarship. It runs counter

to

it also runs counter to thc fact that viewed in long-term perspective, colonial

terms of territoriality, monopoly on 1"11c usc of physical f~1rce and bureau-

rule did indeed initiate a radical transformation in the nature of the stJtc. It

cracy, and the colonial state. VVhilc the argument is a general one, we will w:e

Jed to the creation of territorial states under international law that aspired

examples from

to a state monopoly on power and to fixed external borders. Frequently,

VVc will f(x-us on two dimensions of colonial rule. First, 1he colonial state

this took place in regions where boundaries had previously been imprecise

was generally weak in terms of the extent and depth of its colltrol. This was

L~erman

colonialism, mainly in Afiica, to illustrate our points.

and constantly changing, and where there had been a wide variety of dif-

partly related to its lack of legitimacy and idcologic1l hegemony, the second

ferent types of political order with very diflcrcm degrees of ccutclli?,ation.

issue we will examine.

Insights fiom Law and Historv

The characteristic feature of the colonial state was that it only reached into
local societies to a limited extent. There was a vast difference between the colonial powers' aspiration to total control of the colonies and social practice

Governance and Culoniod l\ulc

rhc situation on the ground. For this reason,

. de
ou t 51

1\'C

+I

can describe the sinJJ.tion

the main colonial cities as a form of subimpcrialism over which the

mvcrnor had little actual control (.Steinmetz 2007).

the presence of the state was often very limited. Jn theory, colonial state;

g Because of this, r-hc bureaucracies within the colonies were extremely hd

were territorial states, which aspired to achieve a monopoly of power over

crogcneous. This w:1s rcinfin-ced hy the facr th~t a large number of other in-

the entire territory they claimed as theirs. Even if Germany's suggestion that

stances were involved a1 a locallcvc-1, for example the members of expeditions

cfkctivc control over an area would determine colonial rights was defeated

sent out by atll'islavery commiuccs and missionaries. They were independent

in Lwor of Great Britain's insistence that the responsibility of the occupying

or the colonial administration and did not fCc! hound to the latter's wishes.

power should he limited (at the Congo Conlcrence in Berlin in 1884- and

In fact, the colonial administLltion needed the cooperation of these indi-

1~85 ), the monopoly of power remained the ofilcial ambition of the colonial

viduals; given the costs involved, a large number of regions had no colonial

bureaucracies (Fi'irstcr 1988).

presence at all. As Kwame Anthony Appiah has underlined, "the experience

However, these visions remained largely unfulfilled; theory and social rc<llity did not coincide. For the most part, the European colonial states did
not exert full control over d1eir territories. The colonial states were weak

of the vast majority of [the] citizens of Europe's Ati-ican colonies was one of'
an essentially shallow penetration by the colonizer" (Appiah 1992).
ITcrc, too, we must dificrcnt:iatc. The administration's ability to comrol

st<ltcs, even though the ofl-ice of governor was usually equipped with a wide

its territory generally increased over time; in the German colonies, this was

range ofcompctences. These included both executive and legislative powers,

the case especially after the Colonial Ofticc was set up in 1907. It also varied

;md, because governors could issue ordinances, tlJCy could add regulations

from one colony to the next; a greater degree of control was possible in

to the kg<1l system almost at will. The governor was the head of the colonial

Kiaochow than, lor example, in northern C;Jmeroon. In towns and coastal

<1dministration and commander-in-chief of the colonial military (Gann and

regions, colonial rule was more thoroughly institutionalized than in the hin-

Duignan 1978). In the German case, the Foreign Office, and, from r907, the

terlands. Dar es Salaam was completely transli:mncd, becoming a modern

Reich Colonial Office, had very little control over the governurs' actions-

colonial mctropolc. But outside these colonial centers, the creation of a full

not least because the letters that were the main form of communication be-

system of colonial rule remained incomplete. In ryoo,

t\\'een Berlin and the colonies took two months to aJTive._ In addition, this

and coloni;l] administrators in East Afiica were (supposedly) in charge of

concentration of powers in the oflice of the governor made continuity in

between eight and ten million African and immigrant inhabitallt's. At this

wlonial policies Jess likely. EJch governor stJycd in his post for only a few

level, the administrative presence was even slightly higher than in the Brit-

+rs German olllcers

years; every change of governor could result in a ch~mgc in focus or even a

ish colonies, hut some sixty times lower than in Japanese-occupied Korea.

com pine change of policy (G.mn 1987; Pesek 2005).

Over large areas or the colonies, then, ITJ.I implementation of the supposed

Below the governor, the local administrative units were led by the district

colonial monopoly on tile usc of f(JJcc was impossible. Colonial administra-

oJliccrs (Bc:::.irlmnntmiimJcr) and station heJ(k They were the most impor-

tors undertook travel outside the <Jrea of real control at their own risk. If

inst.mces of colonial power and, like the British district commissioners

an ofTiccr went on leave or was ;1hscnt 1()1' any other reason, administrative

ami rhe French cOJill/Innrlrmt.r rlc u:n!c, they had a range of competencies over

activities often ceased for a considcrable period. The few administrative sta-

Llllt

which the governor, in his turn, had little control. They were the rol cre-

tions within the country were "is!J.nds uf power" (Pesek 2001) that struggled

at(li'S of empire. Their loc.1l powers were such that in Togo, JiJr example, one

to maintain a semblance of authority.

flrzirkl'nmtmmm dismissed every single one of the H+ chiefs in his district

l n 1903, f(ll example, there were only thirty German stations and military

over the course of his twenty-year rule, appointing more favored candidates

pu~;ts

in their stead. Like thctr superior, the Bczirl1.rmntmd7171rr attempted <111 aris-

direct events in their surrounding regions. In most cases, the in!iastructure

tocratic style of power enforcement and insisted on their autonomy from

avaibhlc mc111t power could only really he exerted at isobted poims. After

the sc:lt of government; they justified this with tlJCir superior knowkdgc or

the Reich Colonial Ofiicc was set up in l\!07 J.nd 1\cchenberg installed as

in German East Africa, and in many cases they were almost helpless

1'0

''~',,,,
+6

lmi~hts from Law ,lJlJ Historv

governor (in 1906 ), and with the changing focus on rational, "sci emilie" Co-

1
(

'

Another limit to the on-the-groimd legitimacy of the colonial state was

lonial policy, this began to change. Life in the colonial stations became strictly

rhc fact that colonial rule always meant fc1l-eign rule. Even where the cultural

rcgubted, and the separation between officers and troops, and Gcnn;Ins and

, d technological transformations met with the approval of the population,

111
this deficit could never be completely overcome. Anticolonial national move-

Aflicans, was implemented much more forceflilly. Police regulations were

imposed on local societies, natives were obliged to greet every German they

rncnts always picked up on this issue, even when they themselves were hm-

encountered, and a curf(:w was introduced. All inhabitants were required to

d;1mcnt,lll)' interested in pursuing modernizing policies of the type that the

register their address in order to make administration easier; they were also

coloni,u government had pt-cl'iously been engaged in. In structural terms,

b;;nned from changing their names. In practice, however, these policies were

colonial rule was a form or"dominance without hegemony;' as Ranajit Guha

almost impossible to enforce. The Aliican population was able to make usc

bas described the rule of the British Empire in India. Following Antonio

of their superior lmowlcdge of the local situation for their own purposes.

Gramsci, Guha uses br;_fjC11101l)'

Mobility, in particular, continued to be used strategically by the rural popula-

cultural or ideological belief in a society not through {()rce (i.e., dominance)

tion ;md

t11C administration found this very diff1cult to control. Jn addition,

the stations in the colonial hinterlands were often dependent on the cooperation of local traders and power holders.
The second aspect of the weakness of the colonial state was related to

to

mean the broad acceptance uf a particular

but through the "agreement'' of its members. In co11trast, the colonial state
]lad little ch,mce of relying

011

shared beliefs and had to make use of force on

a regular basis (Guha ryy8).

This applied even when colonial government attempted to embrace loc1l

its lack of "grass-roots" legitimacy-the colonized did not believe that the

traditions. The British Empire in India was a model in this respect:: the East

colonial rule was legitimate. Colonial regimes always attempted to create

India Company adopted the insriwtions of the ddimct lvlughal Empire in

the impression that their interventions were done for the benefit of those

order to profit from the latter's prestigious status. Similarlv, German colonies

ruled. Their main instillment in this regard was the promise put f(mvard

made usc of indigenous customs ;l!ld habits, typically in the context of institu-

by the "cultural mission"; tlJC colonizers firmly believed that the stJte's or-

tions of indirect rule. Tbis strategy was mosr successful in Samoa, but Gcrn1a11

g;mizational achievements would meet with the approval of the colonized

pl1ptdatjons.
The mis.rion ciPilisatrice promised to gradually modern~ze the colonized
societies and to improve individual standards of living. lt was closely linked
to a worldview that thought in terms of development and of progress. It
was founded on a strong belief in the superiority ofVVestern civilization and
the [1,1ckwardness of African societies and a conviction that the achievements
of the colonial state would be such that tbosc colonized would willingly go
along with colonial rule. Roads, railways, buildings, the teaching of reading

,llld writing, medical care, the creation of a Vv'cstern system of education,

military superiority and a (compulsory) work ethic enfc)rced by a regime of
physical punishment-all these were, in part or in full, the result of political
or economic interests, but ir was also hoped thJt they would help to dctnonstratc ro the native population the org<mizational powers of the colonial
state. In i1racticc, however, these interventions, though propounded in terms
of the culrural mission, often triggered resistance and as such acudly helped
ro undermine colonial rule (Barth and Osterhammel 2005; Conklin I<J97).

ofllcials in Afiica also (increasingly) attempted to reconstruct local traditiom

and to ensure that German rule would make reference to them. The recovery
and codification of wlut was called "n<Itive law," ckvelopcd hy legal experts
such as Rudolf Asmis in Tog( J, was the most imporont clement

or dKsc at-

tempts ru share in local strucwres oflcgitimacy (Knollzom; Steinmetz 2007).

Nevertheless, full rights of participation in modern societies remained
in,Kcessiblc to the coloni;,cd population. This w~1s one fundamental difference hcrwecn colonial societies ami Europe;1n nation-states. Describing
British-occupied Bengal, Part ha Chatterjee h<1s spoken of a "bi-furcated public sphere." Under the conditions of colonial rule, it: was imjlossihle f(n an
independent civil society to emerge. Instead, the colonial stare claimed and
controlled large areas of the public sphere, not least by limiting education,
freedom of expression and opportunities t(x codctermination (Citcltterjee
1995). Similarly, the German colonies did not envisage anv f(mn or popular

democratic rcpre~cntation.
This rundamemal weaknes~ or the colonial state- due to it~ limited resources and means or g<wcrnmental cont rul as well ;1s its lack of legitimacy--

+~

I nsigbrs Jiom Law and J listory

gave rise to the quintessential colonial form of governance: intcrmediarit:y,

the delegation of power to local and regional power holders and elites. The

~
I

:b
I
:$
'

new power holders had no option but to enter into alliances with locals ,
who thcmsehTs were pursuing their own goals. The strategy of divide and
rule was, of course, not unique to Germany. This f(m11 of indirect rule was
a common practice in the British colonial states, the famous example being
Nigeria under Lord Lugard. The objective was to achieve careful moderniza.
tion while maintaining traditional structures. The other end of the colonial
spectrum--at least in d1cory, because in practice these differences tended
to become blurred -was represented by France and Pormgal, who aimed
to achieve complete control over their colonies, with little scope for local
agency. German policies were located somewhere in the middle. During the
early phase of German colonialism, power was based on close cooperation
wid1 chiefs like Samuel Maharcro in southwest Africa (although he was later
to lead the armed resistance to German rule). Later, the Germans tended to
involve selected local individuals in the colonial administration. Examples
were theA/zida, used as local administrators in d1e coastal regions of East Af-

many examples of states d1at depend upon the incorporation of non private
actors and institutions. Instead, colonialism was the fundamental geopolitical and cultural condition that structured the global spread of the modern
state. Analysis of governance patterns in colonial states thus helps to contextualizc the concept of the modern slate and its many historical manifestations
(Dirlik 2007; Reinhard 1999).
Moreover, the case of the colonial state enables us to critically examine
an aspect that lies at the heart of many current governance debates: the dichotomy of public and private. The dynamics of rule in colonial statcs render
the binary category of public and pri\'atc actors highly ambivalent and problematic, not least on normative grounds. The boundaries between public and
private were blurred both among the colonizers and between the colonial
bureaucracy and indigenous potentates. Moreover, in the colonial situation

greater detail here.

First, the diHcrcntiation of the colonizer populal'ion into state clCtors ver

administration (Dimier zoo+)

sus private actors remained largely theoretical. Most visibly in the early periods of colonial rule, but also later on, distinctions hcrwcen state-Cunded
administrative personnel and a wide range of nonstatc actors were marginal.
This was particularly obvious in the case of British lndia, where political
power was deliberately delegated to the private East India Company. ln the
case of imperial Germany, the government invested colonial activists like
Carl Peters with the right to ~lllncx territory fi:n Germany. Tn the early r88os,
private entrepreneurs and companies also exercised quasi-state powers. 'lb
the extent to which the German colonial empire consolidated, these com
petcnccs in foreign policy were monopolized by the colonial government.

State Actors and Private Actors: Revisiting the Concept

of Governance

3)

1\ close look at the mechanisms of rule in colonial states has important im

3)

plications Cor the gc11eral debate on governance in areas of limited statehood.

Not least, it contributes to a bistoricization of the notion of governance. The

ltV

no means a novel phenomenon. Given the precarious instability of imperial

3)

The colonial state, it is important to remember, was not just one among

rule as such, because the power of the colonized was not derived fiom their
own power resources; rather, they were taking on a role wid1in d1e colonial

potmtatcs, so-called chief.>, to strengthen colonial rule by delegating limited powers. This strategy enabled colonial governments to rule over vast
territories and large populations with only small armed forces and limited
administrative personnel.

:e

ruk, governance was fundamental to colonial states !iom dlC very beginning.

rica, or the Lul11rri, their counterparts in New Guinea. This was not indirect

ers to cope with the task of ruling over territories and populations largely
oms ide governmental control. They used the prestige and ~;uthority of loc<ll

:a

+Y

diflcrent governance collectives interacted and overlapped. This made it diflicult to define the constituency for which governance services were provided.
There arc three components to this argument, which we will examine in

Indirect nde, then, was devised as a form of governance by colonial pow-

::rJ

Governance cmd Colonial!\ ulc

incorporation of' "private" actors imo governmental strategies of rule is by

But in many other policy f1clds, private initiative remained crucial. This was
true in particular lor the cdt1cation system that was largely built by mission
societies and withom state fimds (Krause 2007).
\1\lhilc these forms of delegating power and authority seem to fit the definition oi'govcrn;mcc fi"om the point of view ofthc coloniz,cd, the diflcrenccs
between state institutions, missions, plalltation owners, traders, members
of scientific explorations, and so on were m:Jrgin~ll. This was nor- only the
case in the early years in which, in Cameroon for example, the adjudication

from Ln1 .md I li,tury

[ll 'sioht'
t'
.

50

of criminal l.nv was explicitly dellned as the ta'k of all Europeans (Schaper

theY were not mere "pnvatc" persons but rather fullillcd ofllcia.l tlmctions in

,;coJ(J ). Even after colonia.! bureaucracies had been firmly installed, the car-

thc.loccl1 societies the)' represented. Wh;H was more, in m;mv parts of rhc in-

c"orical difTcrcncc between sratc and private actors was not p.lrt uf' every-

accessible hinterlands rhe colonial government did not eYen h;wc the power

d~\' cnloni.ll practice.

to enforce rheir own orders, and rhe umcept of indirect rule was clcarlv but

,uwcT 0

From the pcrspcel"i\'e of the colonizc:d population, tl;c

! a plantation owner <llld

:damcutallv
1111

C\Tll

the hc;!d of a mission station did

11 ot

described <lS coexisting wil'i1 local rule. The lslamic hdbc rulers were i(Jr-

diYcrge ilom the .mthnrity of state administration.

lnsrcad, wh.1t was crucial was the boundary of race. Colonial ~;ocictics

relied

011

"fiction. ln n<>rthcrn Cameroon, I(Jr example, German rule should really be

the "rule of colonii!l difTcrcncc,'' as l'artha Chatterjee has c11lcd it in

11];1]1y suhptgatcd through ;1 series uf military expeditions but the Ccrmans

had lit tlc real economic or pulit ical controL ln hct, the Fulbc anstocr.Kv

the case ol British South Asia. By this he means the ideological and practical

thcmsc!Ycs made usc of the colonial power and were able, with the milit<1n'

ii11porrance of the idea that there was a fundamental dichotomy between the

support of the Gcrmam, to expand their own ;11-ca

colonial masters and the (supposedly inkrior) colonized population. This

concept was central even where the government and :tdministration believed

Wirz 1072).
'vVhat this means, then, is th.lt the rhetoric

or domination 1ll au sen

t<J?O;

or public versus private runs

,,f rcif)ing colonialist categories and thus of naturalizing colonial

rhat their colonial subjects would at some point in the future be capable of

the danger

becoming citizens with equal rights to those of citizens at home (Chatterjee

rule. The colonial state was no more "public" tlnn the multiple political entities it purported to govern. Instead, the complex mechanisms nf colonial

1093)

be sure, the notion of race was not monolithic, and many competing

rule arc hcuer described as competing ami overlapping forms of authority --

strands of racial thinking coexisted. /Vloreover, in everyday practice the no-

involving hoth the colonial government and indigenous rulers. Dcpcndmg

tion of racial difTcrence could not be taken for granted but was,

JS

Ann Stol-

er ]1,15 convincingly argued, constantly rcarticulated .md negotiated (Stoler

"lJ' Stoler 2002). These qualifications notwithstanding, the scgregrating
19() )
<.....-

'-

work of the color line was the fundamental reality of colonial rule. It was
immediately apparent in the sc:paration of living spheres in colonial cities,

on the context, the local rulers did not derive their authorit;' fi0111 being
invested by a colonial bureaucracy. Their rights to ruk were cqu;1Jiy based on
the power structures of the loccll population and they aimed at representing a
"state" that could claim higher legitimacy than the colonial state.
Third, the coloni~ll setting renders the question of who constitutes the

in the dtdity of the legal structure, and in the prohibitions to intermarriage

governance collective a highly complex one. \Vlm wcrc: Lhc illlliYiduals and

;llld miscegenation. The prerog;~tive of "race" implied that access to power

groups ;1ddressed by governmental and private interventions? Thc: houndar-

;u d authority did not depend primarily on social diHcrence, class, or indeed

1
rhe char.!Cteri/,ation as public or private, but rather on notions of di!Iercncc

<lS their hendici,l!'ies were 11uid and changing, and they are an,llytically hard

th,lt reinfurced the basic opposition oC coloni;,crs and colonized (l'vllihlhahn

.
20 OlJ ,

Wildcnthal wOJ; Zimmerer

2001).

Second, the definition of indigenous elites as private actors is highly proh-

tes of groups thaL bencfitc:d fiom governmental measures and were urgncd
to pin down for the histori.m. \Vithin a given colony, highly diverse groups

pro11ted flom the rcgubriuns ami provisions of the state administration

and its "priv;1tc" partners. And ;1S ditfcrc!l1' social groups competed filr righrs

]cnl.ltic. lnfornul rule implied the delegation of authority to local potentates

and .1ecess to

licqucntly the so-called chiefs). This followed a c!Jssical governance pat1

tern of employing indigmous actors and recruiting their networks and social

tbmentally.

.. stwc to m.1kc up for rhc weakness of thc colonial st':~tc. From the fXrSj)CC-

f'IL,

t"

(_)(' CO\II'SC:,

J'OW<.T,

rhe addressees of institutional arrangements v;lricd ftttl-

gmcmatKC aJw;l)'S iiiljlJiCS f(1rlllS of bargaining between djj~

krcnt groups and a trade-oJfbctwccn competing claims is thcrdrJrc nothing

ti,c nf the colonial government', these arrangements did indeed involve pri-

peculiar. But the conditions under colonial rule were spcciflc. For example,

v.ltt' ;Ktors who were tcmpor;1rily invested with state competctJCes. Bur f(Jr

ccnaimy or justice ami the reliability and transpJt-cncy of the law were val

the histori.ln, it is a normative assumption ro declare the colonial administra-

ucs that the colonial govcmmetll' ch;1mpioncd and used to legitimate its

or JUStice was it, <lml

tion a "stare," and the local communities mere "priv.ne" institutions. Indeed,

presence. But whose ccrtaimy

the !c1c 11'\bids" were selected by the colonial bureaucracy precisely bcc;Juse

From the perspective or the coloni;.cd population, the mechanism of' leg.1l

indeed, whose justice>

. lill ],.J\1'

, [n,ights I"

.111d J!j,wr\'

imarilv towards the recnf(xccmcnt of colonial rule-1

.. workcu pt
,
. . . .
.
l'roccdlllt
, . , it maY have served thnr mdJVtdual or group mtercsts

-rete case.5
c\'cn if in cone
. I s c1sc it is imJ10rtant to stress that a strai~htforwarcl
-' 1J1 t )J,
'J(J be sutc, _...1nd ruled is misleading, mainly f(lr two reasons. On the
1 5'
truc1
chchotD11i)' 0
_ ]Jrship has complicated the strict dichotomy between
! 1cccnt sc 1J<l' . . .
.
.
.
.
<>llC lull('
zed as posned lll culomal cilscoursc. /\spate of thco1
. . .. lild t'O ont .
.
.
. : -. I work has explored ami oposed the hntt k I >oundancs
coloni!<l s
.
l nlpnttl
.
rctJC.d ;llll t
.nt 1ct.. 1' lt'JJ!itics, and rulers .md nrled 111 e1crrday
. . colonial
,l \\'hitcllcss, w of t;Jking a racially based "rule or difkrence" for gr;Jntcd,
incrnsinglv at the shifti1w, negotiahlc "politics ofdif
pr.Jcticc. Instod
.
. " ]lave loo 1(CL1
, ,
c "
hiswnan.,
~ . Buetmcr woo; Cooper zoos; bschcr-lttJC and l1ehr.
, (A 1nold 19< 3,
.
_
._
fcrcncc
.
,. McChntock 1995). On the other hand, the clJffcr00
. LcvJilC z 'r.
. .
. .
lll.lllil zoo!),
. the colonialnustcrs and the colomzccl, a dJfferemtaUon
[1ct\VtCI 1
.
-"
" . j .
. .
. .
entt.JI'J<'II
. rl , cxf1resscd Ill terms oi race, stooc 111 opposition to tllC
-rcasJIIg ) '

. .
. "fl!cachcd by the proponents of the cultural llliSSJon
th;ll was JilL
-''cicV<1ttOil
.
. .
.
.
.,
...
,-otKC['t of
_
in ideologies drll'!ng the coloma! proJect. 1 he Ct\'ilJZc
of
rhc
ma
':'
.
"

,
1hat 1\'.l.S 011 .
i . romote comprehensive .mctal dcvclopmcllt : to lacil. . 1Ji1lC' to f1
.
.
in 1 ~ mtsstOil
.,. end despotic rule, create a soctal order that was based
'
.. 1I lro<>J css,
irate rcclll11 '; l ~ix women f{x example) and JXlrticipation, and introduce
-ifY]llOil(I r. lOSitions. But "c IC\'aUon
. " antj" LIC\'C Iopmcnt " were a!Oil CJ11;]ill '
,, . tltur.l c ISJ
.
"modern c~
_ arity with the colontzers was co11stantly deferred. The
l' uonaL as l1 .
.
.
. . .
wa 1. s cone 1 . go<1u1 exatJlflle
of the tension between assnmlanon and
"
15 1
school svstcnl : L,, levari on" and the tmintcnance of fundamcnt;ll ditfcr[lct'II'Ctil C
.
_
.
dif1(:rencc,
:. , l the colonial proJeCt as a whole. VVestcrn education
. I lf,JLICI JZt t
. .
.
.
.
- en res t h.lt c 1'
.. its rccit1ients famthar With the prmc1plcs of hnropcan. -d ro nJ;l 1,c ,
.
.
. .
was ~aq.1posc . .
hut at the same nmc, teachlllg was !tmttcd to J very
- 1tz-1non,
l ~hristian uvt "' _ , . it did l'rovide resources that colonized inhabitants
T0 be t 1c.ll,
b;isic leveL
_ . llowed the children of slaves and other dependent groups
1 '1
--ss
I

.
( st 10 at1end at mtss1on
coukl ,JCtC
sc I1001s) access w cc IucatJon
.
.
.
..
. . Jficn t 1JC n.
. t of- imjll'l>Vtng then soual posttton. Many members
( wlw wctt ' , lro.spct
t1
rhus,
rhc
I
.
]J<J would later lead their countries 1'0 imlcpcndencc
,111 '
. 11 cittCS W
. .
.
, >(the n:itJtlil
.. : schools. Emanctp;ll!on was mdecd a goal, hut !'liciT
I the nllssto 11 .
also artcndct
. f- . the students to become equal citizem. The schools
' intent ot
w.ts never an)
... tc l'erfect "nativeS:' not hbck Europc.111s (Barth and
. I . j tO ctC.l
\HTC cst,1b!Is ill
. Conklin IY<J7; Fischer-Tim: and J\dann zoo4.).

Ilst;ln<1lllg, t l1e {-um l ;imenUstcrhJ11 111 1cl zoo\,

- _, s -wd contestations
notwtt
.. lilljl]c;;JllC. ,
.
.
;\II these t< .. __ ,remains crucial to any cv,iluatton of governance under
'l '<r]tJIJ1ll)
.
..
.
r;d issue<> f '"'.
Domination hy a forctgn power delegi111111Zed, ;Jibctr to

lJt JCJJ1S.
I-

"

<'

L-

etliPi11'11 (Pill

,.

"

dif1crcnf' degrees, the interventions under colonial rule. \Vhilc the stare bureaucracy and its di!Tercnt "private" partners---such as mission societies and
indigenous ]'<Jtentatcs-- supplied the newly founded schools, the crc1tion of
Wcstcrni;ccd medical services, the ongoing elli>rts to "educJte the n;1tivcs to
work," ;UJd the introduction of VVc,J'crn legal standards, these services and
progranlS were ,J!wayo tied lolhe interests or the Europcm platltcrs, .scnlcrs,
merchants, and .tdmimstrators. Th\' l(mns of 111- and exclusion b;lsed on the
notion of race produced a f>inary discursive SII'UCl ure that made it diflicuJt
embrace the "benefits" of governance provisions without recognizing the

10

inhncnr connection

to

lr>rcign domit1.1tion.

Path Dcpcmkncy?
Studying the

proccs~cs,

strucmrcs, and actors uf colonial governing not only

provides us with an understanding or what governance "before the state"

could look like, it also helps us comprehend rhe origins ofspcciJic gowrning
practiceS, lcg.tl traditicms, Or connicts that Glll be observed, e\'Cil today, in
countries ;11ld regions that look back Oil <1 colonial past. The modes or gov
crning established under colonial rule were not always completely abolished
after a colony gained indepemlencc, but instead fl-cqucntly h;td prof(Jund
reverberations in the country's subscquc11l development. In many cases, rhc
governance practices and structmes that h;ld cnJivcd during the colonial era
determined the shape and ch;Jracter of a country's legal and political sysrcm,
the role of specific actors within the realm of politiul organi;cation and rule,
or the nature or societal cleavages.
The longC\ity of' political structuns ;llld 11r.JCtices rooted in coloni.d times
strongly suggests that there is a path dependency inherent in coloni;J! gover-nance. In order to understand present-cby governance in f~lrlncrlv colonized
countries it is thercf(nc indispensable ro take into account their culonial pasts.

This is not only true f\1r those /\flicm, /\sian, or Latin Amcrie;m C<llllllrics
tlw arc viewed :1s areas of limited st:H-chood tud.1y, but also J(>r stable dcmmTacies like ( :an:itla or the Unitecl St:1tes. Even in the United State., where
British ami l;rl'JJCh colonial rule encleclmorc than two hundred yc1rs ago,
the legacies or the COUDtry's coloni.JJ past continue lo influence the character

of the political ;lnd legal system. In rhis context, the usc of the gmc:rn;mce
concept proves tu he of value, since it allows f(>r a per.sl'cctivc un colonial

rule that not ottly {(JCuscs on the colonies' of11ci;ll politic1l stTl!Cl'llre, hm also

I+

Insights fiom Law .l!ld Iliswrv

ukcs into view informal modes of governing and the role of nonol11cial and
semiofficial actors in processes of politicaJ organization- characteristics of
colonial mlc that were often much more persistent than the formal structures
established by the colonizing powers.
In the following paragraphs, the long-term consequences of colonial gov-

l;o\'cm;mce .ll!d Colui)\Jl Rule

\I

tiona! make-up as well as f(Jr the shape and character of regional and lucal
ovcrnance. The issue of the states' autonomy and political power in relation

~0 the federal government Ius been

a contentious topic throughout United

StafCS history and remains so even today. The most vivid historical example
irs culmination in the American Civil \;y'ar (Drake and Nelson !'19'/). But the

dc.Jis with the political heritage of early modern settler colonies in North

debate concerning rhe inf-luence of state versus iCderal government conrinues

America, the second one looks at the legacies of colonial rule in Africa during

ro affect current governance in the United .St;Hes, as could be observed, f(Jr

the era of high imperialism. Although the long-acting cfrccts of colonial rule

example, in the immediate aftermath of Hurricane Katrina in New Orleans

that can be observed in these two cases difier <]Uite substantially tiom each

in 20 os. \;y'hile the local level of government ceased functioning because of

damages caused by the catastrophe, state and federal authorities were split

arc clearly visible in both contexts.

Various features of the United Stares' politic11 and legal system on the

is the heated discussion oC"states' rights" during the antebellum period and

ernance arc illustrated on the basis of two case sn1dies. \;y'hile the first example

other, the contim1itics of governing practices that emerged in colonial times

over the question of who was ultimately responsible /()r d1e coordination of
emergency relier This confusion

or responsibilities resulted in delays in ex-

local, regional, ;md national level can be traced back to the country's colo-

tending dkctivc assistance and evacuating the ciry and contributed substan

nial p<lSt. A conspicuous example of the colonial heritage inherent in United

tially to the high death toll in the city during the d.1ys following the storm.

States politics is the extraordinary strength of the individuaJ states within the

This Jed to a renewed discussion of the aclvanr~1ges and clisadvant<1ges of the

federal system of government. When the thirteen original British colonies

{Cdcral system (Griflin 2007).

in mainland North America declared their independence li-om Great Britain

But the persistence of colonial legacies in the United States' political and

in 177(1, it was a mat1er of course for many former colonists that the newly

juridical system docs not only become visible with regard to the st,1lLJs and

CIT<lled states should be the principal centers of power and that a centralized

influence of the individual states in the coulltry's federalist system. Colonial

ICdcral government should be vested with as little discretionary power as

traditions arc of similar importance with regard to governing ~1ractices ami

possible-a position that found expression in the Tenth Amendment of the

structures on the regional and luc1llevcls of politic:t! organization. lvlany of

U.S. Constimtion, ratified in 1791 (Wood 19y8). The reason behind, this was

the differences in the individual states' fim11al I)(Jlitical structures existing

not only the fear tlut central authorities would abuse pO\ver at the states'

today can be traced b;JCk to their colonial pasts. Even the original thineen

cxpmse-the exact same constellation that had induced the colonists' resis-

British colonies' local governing practices and structures, though all based on

tance ag~1inst British rule in the first place- but also because long-standing

British models, varied considerably. Jvlassaclmset"ts, fix example, featured a

political structures and traditions had evolved in each colony independently

rclahvcly dcccnlralii',cd political system based on townships as units of local

over the course of several decades. During most of the colonial era, the com-

political organi,,ation, while power in centrally organized .South Carolina

mercial, political, and social relations that each colony maintained with Creat

was concentrated in the colony's capital Charleston, with only the Anglican

Britain were much stronger than those existing between the North American

church parishes serving as local gmnning units. Thgethcr with the different

colonies themselves. Due to this lack of intercolonial exchange and coopera-

socioeconomic conditions prevalent in the two colonies-with South

tion and the relative fiTedom that Britain left her colonies with regard to the

olin~1 being dominated by an extremely wealthy slave-holding planter ;md

c,u-

handling of internal affairs, it was thus possible for each colony to develop

ll1erchanr elite that was COJ1centrated in the colony's coastal area, whereas

its own governing practices and structures. Even more diversity was added

the Massachusetts popubt ion consisted mostly of smallscJic brmers, mer-

to this picnJrc when former French and Spanish colonies like Louisiana or

chants, ami craftsmen who were scattered throughout the province-- these

Florida became part of the United States. These dilli.~rences in the political

structural katures led to entirely distinct governance patterns (Middktnn

development had important consequences f(Jr the colonies' subsequent posi-

2002). Even today, town meetings in which the registered voters of each

tion and sclhonccption as states in the newly-fcnmded country's constitu-

town transact town business hy m.1joriry vote ;lrc an import,mt part orlocal

I
I
I

\(1

In"iights from Law ,md I-J isrory

l1uvcrn,lJlcc and Colonial Ruk

57

governing in Massachusetts and other New England states, while such prac-

further increased during the 17\!0S due to the inl1ux offi-ce blacks ti-om the

tices of direct democracy arc absent in other pans of the United St-ates, such

Caribbean during and after the Haitian Revolution. Their position had be-

as South Ctrolina (Berman and Murphy 2003).

come so strong that the newly established American govemment saw 110
other alternative than to continue the French ami Spanish authorities' policy
rO\rard them. Even though resentments among whites against the state's fi-ce
black population considerably increased during the I8+os and ISsos, the li-ce
people of color managed to maintain their high economic status throughout
rhc late antebellum period. Thcv did so in part by fcm11ing tight-knit soci;t]

The long-term consequences of colonial governing practices for presentday local governance can also be observed in the stJte of Louisi<l!Ja. l'l.tced
under French control during most of the eightemth century- with a thinyye.tr imcrmcno of Spanish rule during the latter half of the eighteenth century- Louisiana's development took a completely diflcrent direction from
tlnt of the British colonies in mainland North America. Legacies of hench
<llld Spanish colonial rule arc particularly persistent with regard to the role
.md influence of certain groups within the sociopolitical sphere on the local
level. During the Llltcr half of the eightcentl1 century, a three-c;tste society
evolved in Louisiana_ It consisted offree whites, mostly enslaved bbcks (like
other North American colonies), as well as a third, intermediary group of
people called JJCW ric coltlmr fibre.r. These "free people of color" (later also
1-cfi:rrcd to as Creoles of Color) were either the ollSpring of mixed-race relationships, usua!Jy between white males and free black females, or emancipated African slaves. The status of blacks and tl1e interaction between blacks
and whites in Louisiana was regulated by t11c Code Noir which had been
enacted by the French crown in 1724- and was later adopted by the Spanish authorities. According to this law, manumissions were much easier and
therefore more li-equcnt in Louisiana than in areas under British or, after the
f(mnding of the United States, under American rule. VVl1ik the ordimnce
prohibited marriage between whites and blacks in general, n1ixed-race unions
between whites and fi-ce blacks without marriage were tolerated, resulting in
,\relatively large number of mixed-race children_ Although freed slaves also
existed in the British colonies, the status of t11C fi-ee people of color in French
and Spanish Louisiana was unique in colonial North America because they
enjoyed, with very !Cw exceptions, the same rights and privileges as the white
Louisian.1 settlers. Like colonists of European origin, they could own propcny and li-ccly choose their prolCssions. Many of them worked as artisans,
1r~tdcrs, or merchants and a few even owned slaves and operated pbmations.
During colonial rule, t"ilC lice people of color thus emerged as an important
and sclJ:conlidcnt socioeconomic group within colonial society that- had to
he reckoned with by the ruling authorities in political and social maners
(!vlc1llers woR, +R-p ).
By the time of the Lmnsiana Purchase, the Jl-ee people of color made up
almost onc-fifilt of New Orleans' overall population, their number having

networks. Living in the same neighborhoods, attending church together,

providing f(>r a joint education of their children, and promoting marriages of
their children only with other Creoles of Color of a similar economic standing, they successfully secured their intermediary position between whites and
the mass of enslaved blacks until the end of the Civil War. 'Vith the emancipation of all slaves, they lost their special legal status and were f(>nhwith,
at least ollicially, on the same level as the fi-ced slaves (Schweninger I98<J ).
But because of their former status ;lJld their superior education, they managed to exert a disproporhonatc amoullt of political influence during the
Reconstruction ( ril63-77 )- All of the black delegates sent to the 1868 state
constitutional convention Ji-om the states' prairie regions, f(Jr example, were
Creoles of Color. Although the dividing lines between Creoles of Color and
the rest of Louisiana's black population became increasingly blurred, the former free people of color maintained their cultur.1l identity throughout the
following decades_ Even when eve!lllJally joining f(1rccs with the mass or
the Louiswna blacks in the course of the civil rights mmcmem, they were
still disproportionately influential due to their former privileged status and
their sclrconccption as a distinctive group. Once again the Creoles of Color
assumed a leadership role within Louisiana's black communiry. During the
past decades, most of the black ofliceholders in the prairie counties have
been Creoles of Color. And their influct1ce also continued in New Orleans
politics. With the election of Ernest I'vlori;t] in 1'!77, a Creole of Color became
the city's first nonwhite mavor (Brasseaux ct a!. 1\)t)(J, 104--2rJ; I Jirsch tyy2).
A second c::amplc concerns the long-term dkcts of colonial rule during
high imperialism. An analysis of colonial structures of governance suggests
that current conf1icts and dilliculties in ;trcas of limited srat-clwod cannot be
explained 1\'ithout reference to their colonial pa.<;r. Quite to the contrary, it
is possible to speak or path dependencies that connect colonial structllres or
rule to postcolonial predicame!Hs. A good example is the t.Jxonomy with
which the colonial bureaucracies in m;my states in colonial f\fi-ica deli ned, lc>r

~r
16

lnoiglm

lt"Olll

Law and Hiotory

governing in Massachusetts and other New England states, while such practices of direct democracy are absent in other parts of the United States, such
<lS

South Carolina (Berman and Murphy 2003).

The long-term consequences of colonial governing practices for presentday local governance can also be observed in the state of Louisiana. Placed
under French control during most of the eighteenth century-with a thirtyyear intermezzo of Spanish rule during the latter half of the eighteenth century-Louisiana's development took a completely different direction from
that of the British colonies in mainland North America. Legacies of French
.1nd Spanish colonial rule arc particularly persistent with regard to the role
and influence of certain groups within the sociopolitical sphere on the local
level. During the latter half of the eighteenth century, a three-caste society
evolved in Louisiana. It consisted of free whites, mostly enslaved bbcks (like
other North American colonies), as wcJI as a third, intermediary group of

'1","'

I
~
I

Govemance and Colonial Rule

57

further increased during tl1e 1790s due to tl1e influx of free blacks from the
Caribbean during and afrer t11e Haitian Revolution. Their position bad become so strong that t11e newly established American government saw no
other alternative tl1an to continue the French and Spanish authorities' policy
roward them. Even though resentments among whites against the state's f"icc
black popubtion considerably increased during the 184-os and 185os, the fi-ee
people of color managed to maintain their high economic status throughout
the late antebellum period. They did so in part by forming tight-knit social
networks. Living in the same neighborhoods, attending church together,
providing for a joint education of tllCir children, and promoting marriages of
their children only wit11 other Creoles of Color of a similar economic stand-

people called gens de coulerrr fibres. These "fiec people of color" (later also

ing, they successfully secured tl1cir intcrmediaq position between whites and
the mass of enslaved blacks until the end of the Civil liVar. With the emancipation of all slaves, they lost their special legal status and were forthwith,
at least officially, on the same level as the fieed slaves (Schwcninger 1989 ).

referred to as Creoles of Color) were either the offspring of mixed-race re-

But because of their former status and their superior education, they man-

lationships, usually between white males and free black females, or emanci-

aged to exert a disproportionate amount of political influence during the

pated African slaves. The status of blacks and the interaction betvvecn blacks

Reconstruction (1863-77). All of the black delegates sent to tl1e 1868 state

and whites in Louisiana was regulated by the Code Noir which had been
cnJctcd by the French crown in 1724- and was later adopted by the Spanish authorities. According to this law, manumissions were much easier and
therefore more frequent in Louisiana than in areas under British or, after the
{(mnding of the United States, under American rule. Whi.le the prdinance

constitutional convention f"l~om the states' prairie regions, for example, were
Creoles of Color. Although the dividing lines between Creoles of Color and
the rest of Louisiana's black population became increasingly blurred, the fixmer free people of color maintained their cultural identity throughout the
following decades. Even when eventually joining forces with the mass of

prohibited marriage between whites and blacks in general, !'nixed-race unions

between whites and free blacks without marriage were tolerated, resulting in

tllC Louisiana blacks in the course of the civil rights movement, tl1cy were
still disproportionately inHuent ia1 due to their former privileged status and

a relatively large number of mL'\ed-race children. Although freed slaves also

their

existed in the British colonies, the status of the free people of color in French
and Spanish Louisiana vvas unique in colonial Nortl1 America because they
enjoyed, with very few exceptions, the same rights and privileges as the white
Louisiana settlers. Like colonists of European origin, they could own property and fi-cdy choose their professions. M<my of them worked as artisans,
traders, or merchants and a few even owned slaves and operated plantations.
Dming colonial rule, the free people of color thus emerged as an important
and selfconfidenr socioeconomic group within colonial society that had to
be reckoned with by the ruling authorities in political and social matters
(Mi)l!crs wo8, 4-8-52).
By the time of the Louisiana Purchase, the free people of color made up
almost one-fifth of New Orleans' overall population, their number having

sclf~conception

as a distinctive group. Once again tl1e Creoles of Color

assumed a leadership role within Louisiana's black community During the

past decades, most- of the black ofliceholders in the prairie counties have
been Creoles of Color. And their influence also continued in New Orleans
politics. With the election of Ernest Moria] in 1977, a Creole of Color became
the city's first nonwhite mayor (Brasseaux eta!. 1.996, 104-2o; Hirsch 1992).
A second example concerns the long-tum effects of colonial rule during
high imperialism. An analysis of colonial structures of goveri1ance suggests
that current conf1icts and difficulties in areas of limited statehood cannot be
explained without reference to their colonial past. Quite to the contrary, it
is possible to speak of path dependencies that connect colonial structures of
rule to postcolonial predicaments. A good example is the taxonomy with
which the colonial bureaucracies in many states in colonial Afiica defined, for

I
I

I
I
I

'
I
I

.\K

l;ovc:rtlJnce ami Coloni<li Ruk

insights fium Law .md History

different "tribes," their specific customary bw according to which they Were

to be ruled. This kind of intervention contributed to the construction, and
fixation, of"tribes" and ethnic groups based on legal (but not cultural) scpar,1rion. The colonial state thus acquired aspects of a federation of diJfercm
ethnically defined entities that were subjected, as local states, to overarching

n
:0
:0

xe
~

II

:m
:tj)
I)

colonial rule.
Frequently, tl1is specific colonial order based on the legal rcification of
"tribes'' had long-lasting consequences. The 1994- lll<loS killings of Tbtsis in
Rwanda, convcntionaJly rendered as a paradigmatic example of the dangers
oCiimitcd statehood, is a case in point. Of course, the genocide was the product of a complex set of C1etors that cannot be reduced to issues of historical
continuity (Malkki 1995; Straus zoo6; Uvin 2001 ). But among the long-term
origins of tbe conflict was the strict differentiation of Hunr and Tursi under
German (and then Belgian) colonial rule. The administrative segregation of
ethnic groups that in everyday practice were not at all separate was a concern
of the colonial stare that relied on a rlirirlc ct impcra strategy to safeguard its
rule. The establishment of diHcrcnt legal spheres, reinforced by partial political autonomy, was organized by colonial administrators who both employed
and produced the relevant and1ropological and legal knowledge of the time
(sec, for example, the "Instructions for ethnographic observations and collections in (;crman East Africa;' written by Felix von Luschan, director of
the Anthropological Museum in Berlin, specifically for colonial bureaucrats)
(I [onke 19qo; Scrvaes 1990 ). Colonialmlc was thus intimately tied,to colonial knowledge, and the stmctures it created lived on 1'0 shape life in the region well into postcolonial times (Mamdani 1996b; Newbury 1998; Schmuhl
:woo).
Mahmuod Jvlamdani has convincingly demonstrated that tl1is was a general pattern. The access to rights and power remained conditioned on indigenous status. "If we look at d1e dciinition of citizenship in most J\fiican
states, we will realize that the coloni~1l st:ltc lives on .... In privileging the
indigenous over the non-indigenous we turned rhe colonial world upside
down, but we did not change it" (Mamdani 2001, 6_11\). As a colonial legacy
to postcolonial times, a culture of entitlement developed in which ethnic
categories were not only employed to dciinc cultural identity, but also to
legitimize social and political claims. When in the context of mobility and
labor migration spawned by capitalist development an increasing number of
people came to live on the territory of a "i(Jrcign" ethnic group, thcy always
c.1rricd their minority rights with them. This transfCrability

or competing

<<i

legal orders exacerbated social problems and political conflicts and at the
same time posed 1imita6ons un the ability of the stare to imervcnc and control. The problematic of limited statehood in contemporary Africa, in other
words, can be traced in part to rhis colonial legacy. Mahmood /Vlamdani
therefore goes as far as to say that the inst-itutionalization and politicization
of the statu.<: of"indigcnous" ll'as the most inllucntial and long-lasting effect
ofcolonial rule (l'vlamdani I<N6a).

Conclusions
The usc or the governance concept in the study of colonial rule presents
the historian with both opportunities and problems. On the one hand, the
notion of governance proves to be highly useful for systematically inquiring into the mechanism of colonial rule. In particular, it allows iclemifYing
path dependencies of colonial governing practices and structures, as we have
argued in the fourth section of the Jrticle. Providing a broad perspective on
modes of political organization existent in colonial contexts, the governance
approach allows for a view on colonial governing that not only focuses on
the official systems of rule established by the colonizing powers, but also
on the inf~nmal (and at times cooperative) f(nms of governing that evolved
during colonial times and in many cases proved to be more persist-em in the
long run than the formal instil'lltional structures. As the case srudy on d1e
legacies of colonial rule in Aflica demonstrates, the long-term consequences
of colonial governance arc still keenly !Cit in many of the formerly colonized
regions of Africa, resulting in postcolonial predicamellts that have srymicd
the development of stable politics on the cuntincnt until today. In the United
States, although quite di!Tcrcnt fiom the J\fric.u1 case and much less dr<mJat ic
and negative in their cflcc:ts, colonial legacies arc also still visible in tile counn-y's political system, as the example of stares' rights and of the pcculi,1rities
of local governing practices and structures illustrate.
In contrast, the critical discussion of the concept's transferability to the
colonial context in the third part of this chapter has vividly demonstrated the
limitations of a classic underst:mding of governance when applied to coloni<ll
contexts. The diversity of actors involved in colonial governing processes and
the oJ-I:cn hybrid nature of their roles in colonial rule cannot be adcquatclv
described using the binary categories or "public" and "pril'atc" that J1'C or
central importance in many of the current debates on governance. Likewise,

~>u

Imights fiom

L111'

,wd History

due to crlmic divides, the varying inJlucncc of specific social groups, and
the colonies' blurred territorial bow1darics, a clearly defined and coherent
govcrn;mcc colJccrivc as the object of governing did not exist in the colonia]

. c [n

~-

11articular, it hcl11s f(xus uur attention ec1uallv on the structures and

.

processes. of governing, and on the inst it11tions of rule as well as the inform ell
modes of govcrnmg.

context, rendering the task of clearly distinguishing between the rulers and
the ruled more complex.
The conceptual wealmesscs of the governance concept when applied to
the colonial past may also be of relevance l(x the study of governing practices and structures in modern-day areas of limited statehood./\ first step to
~Kcommodat-c this criticism would be to nndcrsL1nd governance as "institu-

tiomlizcd lllodcs of soci,ll coordinativc action geared towards the production

,md implcmcnlation of binding rules or towards the allocation of collective
goodS:' and thus to strip the concept of any underlying notions of modern
statehood formerly inherent in it. In contrast to conventional dct1nitions that
implicitly assume the existence of a consolidated society with specific expectations regarding the regularization of certain issues, this modified understanding of governance need not contain such presumptions. Speaking more
ncutraJly of"binding rules" and "collective goods;' it instead merely implies
that a group of individuals addressed by certain rules is aware that compliance with these ruks is expected of it (if compliance is actually achieved it
is irrelevant in this context), and that in contrast to private goods, collective
goods have to be opmly accessible, not exclusive, and nonrival with regard
to their consumption (Sonderforschungsbercich 700 2009, +).
J\p;lrt from these minimal rcguirements, the actual dejinition. of what a
collective good is in a given society or community ren1ains a question of
social and political negotiation within the society itselC Moreover, an understanding or govcrn:mcc suited for the stllll)' of colonial rule needs to rethink
the strict: dichotomy or "public" and "private" spheres of society typical f(x
classical approaches to governance and statehood as it was applied to modern
VVestern nation states. Acknowledging the EKt that fhc lines between these
two categories arc often blurred in areas of limited statehood, it seems appropriafc instead to merely diJkrentiatc between "oHicial" and "nunofl'icial"
;1gcnts-cvm though this vcty dichotomy may have cliflcred, it historic;u
practice, depending
'f(l

Oil

the perspectives o( the social actors.

keep the definition of governance open rhus seems imperative when

~1pplying

it to historical contexts-and also to many present-day constella-

tions outside the purview of the Western nation-state. Used in this w:~y, it
m~l)' serve as a heuristic instrument that enables us to take ~l broad look at
modes of governing ami at rhc actors involvcclthcrcin in a historical pcrspcc-

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Law Without a State?

A "New lnteJtJlay') BctJPeen State and Nonstatc Actors
in GoPcmance b)' Rttlc JVf.a/a:ng

:limmcrcr, Jiirgen. 2001. Dwtschc Hcrrsd;aj/; iibcrAJN!mncr: Staatlid;cr .M.nchtmz.pruch

und Wirklicblicit im lwlonialcn Namibia. Miinstcr: 111:

GuNNAR FaLKE ScHUPPERT

HE AIM

OF THIS CHAPTER IS TO CONTRIBUTE TO

the understanding of "Goverrunce in Areas of jjmited Statehood" by discussing these issues in the broader context of new
developments in the area of rule making. What can be witnessed here-the
dccoupling of state <md law, the emergence of new modes of governance by
rule making in the process of transnationalization- are developments that
arc of immediate importance f(;r underst~mding areas of limited statehood.
Furthermore, it would improve--at least in the long run-the research on
governance in areas of limited statehood if this research would stay in close
touch with the broader discussion about changes in governance.

The State and the Tcrritori<llity of the Law

The process of the emergence of the modern state-and consensus exists on
this point among representatives of the science of history (Schilling IYY9) -can be described as a process of the achievement of three monopolies that
arc characteristic of the modern statc. 1 These arc the monopolies on legitimate violence, taxes, and legislation. Ever since the enf~lrccmcm of these

z(
4

New Modes of Security

The Violent Aia!<ing and Unmaking of Governance
in vVar-Tom Areas ofLimited Statehood
SVEN CHOJNACKI AND ZELJKO BRANOVIC

AR-TORN AREAS OF LIMITED STATEHOOD SUCH

as Afghanistan, Somalia, or the eastern parts of the Democratic

Republic of Congo pose a special challenge for the linbge of

security and governance. Theoretically, the question arises as to what extent

security can be established in such zones of violent conflict. Conventional

,,

I,,' [

,:III,

wisdom holds that the answer is dearly negative: a complex mixture of

residual state control and emerging nonstatc armed groups arc in fact tending
to promote strategic insecurity. Processes of political disintegration and the
lack of security guarantees fre<]Uently provide the rationale for local militias
or rebel groups to pursue permanent strategies of violence, enrich themselves
economically, and proilt from insecurity. But what if the answer is positive
and security appears even in the social and political processes of su bstatc
violence? Under such conditions, which forms of security goveruance can

II

emerge?
In contrast to the conventional wisdom, we assume, first, tl1~t sc;~_uJj_t~-~
can
in fact be provided without the
state or even its rudimentarv structure!),
-------~ . --~------" ... ~ - ~-~---~
. -~--............. ~~ ..--.--~-~ .. ,.__ ..... -~--~--~..._.-___......... _:;_;________ -"""'
_,

and, second, that tl1c governance approach can in turn be usefully applied to
analy;r.,c security dynamics in areas of limited statehood. Thereby, we define
security in a narrow sense as tllC Jbsence of threats to a defi1;;;d ~~~f~r;;,-~~<~~1-p.

~--

:!!)
ln terms ofconfigurarions oflimitcd statehood, we focus on the territuri.1l

or more precisely, as a sil1lation in which means applied with the intention

or' maintaining protection against a defined group succeed in reducing the

to

of violent conflict, there arc times and spaces in which non state armed ac ,e t coUectivcly binding decisions and arc interested in a mini 11111111
rors all 11 1

.seu11
. .11.,y r11 this context ' however, it is theoretically necessary to take irJto
0!
.
t . twofold transformation in the provision of security: first, an iuaccoun 1
r1..1g111ent1tion ofnarticin,mts
in the resj1ectivc securit)' markets', and
crcas111g
t
r

volume). The lack of state authority in such areas leaves space and time for

"L

. d rJ1e ever u~Ircatcr complexity of security that varies between being ~a

SCL0l1 ,

public and a private good. . .

Under conditions of polltlcal disintegration and violent conllicts, tlvo
areas theoretically emerge: first, areas ofstm.tcfjic i17 .
fscctlritv-defincd
typcso,
'J
.

.
c
-J 1a1 1ctcrizcd b)' a Sj1ectfic shortage of armed nrotcctlon, a fragmcnscclln 1l', c
r
f t]Je SJKctrum of rafl~Kious armed groups, and a lack of collective!)'
tatJOll o
"
.
. -cgrulations second areas of stmtrgic .rcmrit,,, in which sccuritu is
1 1
ll!I1LII1g
1: J tLJ ,a ous degrees of sCOj1C and inclusiveness, and by various acproVIl cu 1 ' 11
.
.
.

.
rors. Sccurit)' can be prov1dcd both mtcntJonally by armed actors (sccunl:)'
. ce as the instit11tionalization of territorial control of violence), and
govcrna11 ,
. .
. . .
.
Y1ttcrns of sclf-dcknsc b)' V!Cl!m!zed CJTOUJlS (self-protecnvc setile
I
nrougJ

o
!
l
curity)." In our view, the governance concept can be usefully applied preciseof[nrtially institutionalized macronctworks of strategic
I 'SC 11 roccsses
]y I o tiC.
"

.
. ..
. . 'J'] 11s 1
dca
is
not COlllJllctcly new, but rather bmlds upon llllttal apscuTIItY,
,
L

>

')'

'

=
c
.

'

I!:!
:,.1

'I

,:,lj
lj,

1:~

1:

i:l

I'

;:i;

~
'

nonstatc armed actors to recalihrate their imcraction with tl1c civilian population and invest in the provision of security. Contrary to the conventional
diffcrcnriation between .rtro1(fT, JPCIII<Jmkd and mllap.rcd states (Rotbcrg 200 ,,
zoo4) that uses the state as ccutT<11 unit of analysis, "limited statehood'' is
rhus a configurational conception reflecting spatial variations nf security ,111 d
allowing for the analysis of specific security dynamics within or across territorial boundaries.
The chapter starts with explaining three unique modes of security in ,ucas

of limited statehood. \Vc then connect these modes theoretically with the
logic of security markets and the opportunity structures that uJme alo!l):'.
with them. The chapter doses with an assessment concerning the uscfi.dm:ss

')

. I ,5 to interJllTt the violent activity of nongovernmental armed actors in

JC,
.
, ,
"
] rccl sntehood as "new'' forms oi governance (d. Dullield 2001,
areas of 11111 '
,
- Reno 20oo Jackson 200\).l Nonetheless, from a governance
'
'I\.LCI1 20 00 ,
t.\"' .111 umher of t]Ucstions arise: When and under which conditions
perspcc t L'
.
.
.
,
. , 1 g uuJ1S 11 rov1de secuntv as a governaaKc servJCc, and when do they
uu a1i11Cl 1
'J
of violence that tend to heighten insecurity?
VVhicb
ratIJCr 1.c.scJtt to stratc<rics
b
.
docs
security
take
on
and
in
which
way
do
the
addressees
.orms ant lt]L!llitics
,
'
.
f
. . , .11 ancc 1ctuall)' receive these services? Last but not k<1st, in which way
of govu ,

'. : c us violent conflicts lead to the formation of security markets and

co

I con 111 111 1

I
"J!tc't
Jog.ic
docs
the
trade
in1xotcction
commodities
foLlow?
'f() ap
W11tllll"
,
I
I . 11 s1vers to these tjllCStiuns, we have on the one hand developed ideas
prmc1.1 ,
.
.
.
. ..
. t cturc and dynam1cs of sccunl:)' markets 111 areas of Inn ned state
Oil t Ill S 111

, 1 r rc 11ow economic an1xoaches.

On the other hand, we have used
r
I]l)(}ll t 1.1 jl 1
., 11 t of OJ1J10rtunit)' structures in order to encompass the changing
t I1C Cl)lJLC
: 1JIJ.cl ue(wta11hical conditions of contTol over the usc of !(Jrce.
matc!IJ t> "'
pW3l

IIj,

and temporal loss of both, the monopoly of the usc of force and rhe abilitv
make .md enforce collcCLivelv binding decisions (cf Risse, chapter r, rhis

risk level with respect to cxistrntial threats. Thus, even under the conditions

of linking security with governance. The underlying assumptions :1rc that the
formation and the paths of security go\'crnance arc closely linked, f1rst, to
the logics of security markets that crnerge f!om a lack of monopolizJtion of
the legitimate usc ofl(xce, and, second, to material opportunities that change
over time. Specific economic or geographical opportunity structures do not
constitute simply an explanatory EJCtor for the outbreak or the dynamics of
violent conflict, they also provide inf(>rmation about the conditions undn
which providers of security determine the functions

or the usc or f(Jrce:'

New Modes of -Security in Areas uC Limited -Statehood

As we will argue in the subsequem sections, the prob:Jbility of the provision or security is tied both to the lll.lrkct or violence ami the material cl!ld
geographical st.ruc!'ures of opportunit)' that influence the strategies of the
usc of Ioree. 1-lowcver, in order to measure the qu:ility of security, one h,1s
to consider the logic of consumption first. Who act.uallv consumes the security as a commodity ami what range docs th.H consumption assume> II'
security is defined narrowly ~IS the clhst:!Jcc ol physical fi.Jt-ce and <111 increasing rcliahilil:)' of protection, then violent groups such as rebel organizations
or warlords svsrems can produce internal and cxtcmal security in a dciincd

territory, just as states can.' Territoriality ami the extent of constllllj>tion of

()2

c;ovcrning Areas of Li1nitcd Statehood

ll

specific protection measures arc thus not only closely interconnected, but

!(

also constitute the core clements for the identification of areas of strategic
security or insecurity.
.
.;

However, territorial control and the ability to reduce external threats do

not in and of themselves constitute indicators for the quality of security, since
that control of the use of force can also be used for indiscriminate violence

TAJJLE 4.1

Forms ;md Qualities of Security

,.-T)j!C

r-

Protection provider:
monopolist

Coercive security

institutionalized system
Securit-y equals public
of taxation and order
good (no selectivit-y
ICmgc: territorial control within tbc territory)
Ivieans: military
protection of the

of security witl1in an area, not only is tl1c effectiveness and stability of the
security system called into question, but security also docs not attain tbe

external borders, internal

quality of a public good. Nevertheless, there arc ways out of insecurity and

functions)

control (e.g., police

tl1e "protection screw" (Mchlum, Mocnc, and clorvik zooz, 448), which per-

l(mns of protection against internal or external threats (self-protective security). A third conceivable alternative form of sccurit)' production is tl1c del-

Protection provider:
recruitment among

mit security as a good to once again move more markedly fi-om the private
toward the public realm on a quality axis.
Idc;11ly, in war-torn areas of limited statehood, tlvo basic l(mns of security
without or beside the state can be ascertained: (1) security by coercion and
a certain degree of institutionalization and reliability; and (z) self-organized

.
Self-protective
security

egation of protection functions to commercial supplicrs ..6 AU three variants

arc brought together systematically in table 4.1.

.
.

I fwc dcf1nc security governance as the intentional provision of the collec-

"own people"
Mechanism: reactive to
violent context, pooling
of resources
Range: territorially
limited to a defined
group (i.e., selective and
exclud,1blc)

tive good security for a defined group of protection recipients, the first type

fortification systems,
hiring of local militias

This involves tl1c specific strategies of militarily potent actors who invest in
the establishment of monopolies on the usc of J(xce, and advance processes

Security equals pool

and club commodity
(group mcm bcrs
clearly identifiable)

lvicans: patrols,

is best c1ualified to be considered security governance in the narrower sense.

--

Protection provider:
commercial security

of governance formation-that is, the establishment of institutionalized political and economic systems of rule. First of all, dominant and sanction ap-

Comnlcrciali,Kd

proved armed actors usc tl1cir abilities to control territory and social relations

security

com pames

(i.e., the civilian population) to build up internal and external protection

. Mechanism: competition

looting, but rather through institutionalized taxation systems. Prototypes arc

Security cqu;~ls
private commodity

and prices, delegation by (however, there is an

systems; second, they no longer finance themselves by means of organized

rebel groups as the Fuerzas armadas rcvolucionarias de Colombia (FARC)
or the Sudan People's Liberation Army (SPLA) in southern Sudan. But even
local warlord bctions in Afghanistan or in Somalia have invested in the build

Qual if)'

. Mechanism:

. ['

and the systematic massacre of the population in the territory. As long as . {

rebels or local militias provide security only sporadically and in a territorially
undefined context, security remains a rival commodity that can be excluded
fiom consLmlption (d~ Brauer T999, 6-7). Stated differently: by the strategic
maintenance of insecurity and the simultaneous existence of various forms

Form

state and private groups

implementation of

Range: persons, property security governance)

!vi cans: diverse range of

services
---- - - - -

---~-----

----------

t
I
I

'1-J

l;ovnuing Areas of Limited

Statehood

New lvlodcs of Security

''.i

up of political and social regulatory structures, which produce both a cer-

actcrizc.s the development of quasi-state otructurcs (e.g., Somaliland) that

tain degree of mutual ex1xctations and colleccively binding decisions [,01. a

defined group. Thus, the assumption of go\'ernancc formation applies to

require a minimum of output-legitimacy (cf Balmnyi and Snrvoy 2001). In

case of exogenous stabilization one has to consider the benefits th;lt come

difkrcnt degrees of institutionalization and to a large number of forms of

along with statebood (e.g., licensing, credits, development aid). Jtis not sur-

nonstate armed organizations. In successful cases, security in such situations

I)Jising th;It coercive modes of security governance may possibly change into

increasingly takes the form of a public good.

statehood (as happened in Liberia with Charles Taylor) and m~1kc usc of

L.-

.__

If security is ranked in a hierarchy of public goods as the central pre-

externally guaranteed sovereignty.

condition fclr a funnioning political order (cr Rorberg 2.003; Komad and

Self-protective security, by cumrast, is usually a reaction to cominual at-

Sk:1pcrdas 2005), which is necessary to obtain positive beneficial cHeers in

other realms, it foUows that the rudimentary instirutionalization can be re-

racks by looting violent groups. Under these conditions, individuals or civilian groups aflccted by insecurity can decide to counter the restrictions of the

stricted to the establishment of a system of protection and taxation. This

violent environment with invcsnnents in their own security through protec-

implies, first, formal and informal institutions that organize rhc monetary

tive capacities. Such fi:m11s of the provision of security arc usttally restricted

transaction between the provider and the recipients of protection, and also

to

an organi?>ationaJ framework that guarantees territorial integrity toward

promoted primarily and intentionally with no other end such as territorial

1hird

expansion or gaining state control. The militat)' capacities of these units

parties. From a ncoinsrinltional perspective, this process gives rise to

the units involved (peasants, \'illages) and arc inclusive. Selrprotectinn is

Veil)'

security expectations, both on t.hc part of the civi!i;m population and of the

with the type of str;Hegic alliance. While alliances between village units ;Htd

dominant armed actors. The civilian population can assume, on the bases of

self-defense groups usually promise only a lesser degree of security, collabora-

information as to the military capacities of the protection provider, a certain

tion witl1 governments or strong rebel groups may promise grearcr levels of

degree of effectiveness, t'lut is, the protectjon provider in L1Ct appears as are-

security, at least temporarily. The frame of reference fnr the recipients is the

liable security monopolist in the eyes of t:hc population (cf VVcinstein 20o6,

protected are:1 and the particular benefit. From the perspective of economics,

Moreover, it is assumed that the productivity of the civilian popula-

sccurit)' here takes the form ofapoolgoorl in which resources and capacities arc

J()9-70 ).

tion will increase because of the perceived territorial security, since more time

merely mobilized for the purpose of providing security to the groups involved

and resources can be invested in production than in sclf-protcctiva means. In

in the coordination. Situations ofsclt~protective sccurit)' might t!Jcrd(JJ'e bet-

turn, the armed organization achieves reliability regarding a regular income

ter he considered as temporary, transitional phenomena. By asouming that the

that it ohuins through the institutionaJizcd taxation system. Thus armed

civilian population ultimately has l(mr action options--to become the victim,

gwups secure not only their own organizational structures, but als<' takc into

to flee, to engage themselves in nonproductive armament, or 1"0 associate with

account future investment decisions th;lt can therefore take on the quality of

stronger armed groups (cf Skapcrdas and Konrad 200+) --the probability in-

public good- if the investments arc made in sustainable economic means

creases that in the long run, J(m11s ol sell~ protective security wiJJ merge into

;1

of production. l n sum, one could posit the hypothesis that the success or

governmental or nongovcrnmcnlal orders of violence.

the qu;llity of formal

Commercialized security, th;lt is, rhc delegation of security ser\'ices to

and inl(mnal decision-making rules related to the system of protection and

the private sector, is a special cJsc of security production. As a rule, only

stability of such nonstate colltrol systems depends

011

uxation, the credibility of deterrence of internal and encrnal military chal-

very spccif1c security functions,

lengers, and the reliability of agreements lxtwccn the milit;li)' leadership and

arc provided as ;\ l)rivatc ,ommodity f(lr :>peci;ll scutrity risks ( c .g., counter-

JS

the protection of persons or buildings,

the civilian population. Over time, however, even violent ;JCtors luvc to en-

insurgency measures, p.lrticipation in special militat)' operations). From the

gage rhcmsclves in processes oflcgitimation. Theoretically, it can be assumed

point of view of governance coJJsumers, security hcrc is enormously sclcc-

that coercive political orders tend !"o establish an endogenous or exogenous

l"ive, since only those who em p.1y f()r security services receive the bctJcfits

fi;nlle of stahili7.ation over time. Related to the former, an cxpamion of pub-

of protTction. 1\xamplcs ;trc 111\tltinatio!l;\] corpor:uions (sccuri11g access ro

lic related scrvtces into other sectors (e.g., finance, health, education) char-

resources), lmmanitari:m organii',:ltions (protecting the humaniurian sr,acc

()(,

(]ovcrning Areas of Limited Statehood

f!om looting), or international organizations (e.g., protection of persons or

buildings, mine-clearing). The activities of commercial security companies
,1rc clearly defined f1.mctionally (protection of an oil field or of govern111 e11
tal buildings) and directed toward a narrowly defined group of beneficiaries .
(members of a company or the public employees of a transitional adnunistration). Certainly, the delimitation toward the public-security structures is
often fuzzy. For example, commer~~a_!_s~.~ty.jty _cqmpanies engaged to protect buildings may certainly produce positive externalities for the immediate
ncigl1bZ)1:h~)~d ~1;d exte1~d the range of the protection services they provide..

"Jb explain why and under which conditions violent actors engage in security governance, in the next section we mal;;_c usc of the concept o[ security

markets by assuming that the market structures and economic logics in the
security domain encompass the terms under which violent actors shape their
preferences, select strategies tor action, and make decisions.

Security Markets
Security, and in the narrower sense, protection, arc not ordinary market com-

structmcs in lr~~KI Afghanis:_<l!1_,:_)Dlcluding the training of police, can also

certainly benefit all pOi:Criiiarconsumers of security, and thus become an integral component of governance strategies. This implies theoretically that
commercialized protection services can produce different forms and qualities
of security. AdditionaliY,-ri1e.~-iotCiiti3] :~cci.irity outcome is dependent on the

modities and diller in many ways fl:om other consumer goods. 8 As Skaperdas (2oOJ) and Skapcrdas and Konrad (wo+) have plausibly demonstrated,
the competition in the provision of protection differs from classic economic

functional context: in cases of the usc for the protection of persons or build-

concepts regarding the bctors of production, pricing mechanisms, and the

resulting quality of the market product. Private protection providers do nor
compete via price mechanisms; rather, tJ1cy usc violent means to gain con-

ings, it ultimately involves a private good. However, commercial protection

trol of territory and revenues resulting ilom protection services. Moreover,

services assigned for societal and instit1.1tional reconstruction can also serve

it is necessary to take into account that ownership of goods and services is

not exchanged voluntarily, but is rather acquired by force (Eiwert 1999, 87).

private security-service providers proceed on the basis of existing rcgulatoty

structures. Regardless of this, the logic of action of the "new mercenary"
mmins oriented toward defending against perceived threats and security
risks in tllC interests of his employer-and not to act in his own,intcrcsts to
prevent the dangers of wartime or postwar orders.
At the end of the day, the processes of security governance discussed here
indicate that security can be provided by various instit1.1tional forms. As an
alternative to the state, institutionalized orders of violence arise, which intentionally provide protection from internal and external threat. The resulting
protection commodities can be labeled as security governance commodities

i!

97

The protection of administrative: _facilities and the constmction of security

to implement security governance on behalf of third parties. In this context,

r!

New Modes of Security

Unlike ordinary commodity markets, greater competition in the protectionproviders' segment thercfixe docs not lead to more but rather less gain in
benefits Cor all (Skapcrdas 200J, 174-). At the same time, competition bct\vecn
nonstate armed actors witJ1 no regulating central autl1ority means that security dilemmas and arms races arise that favor an increase in violence. \Vithom
any cifective protection of their lives or property rights, large segments or the
population arc prevented l!om engaging in economically productive activities and arc Jot-ccd to invest in their own protection instead (Bates, Greif, and
Singh 2002, 613). This necessity to invest in the means of violence reduces
economic productivity and cilicicncy (Skaperdas,

2001,

187). 9 Under condi-

or as paths of governance formation at least. Insecurity, however, remains a

tions of overt violence, resources eomnot be clfcctivcly distributed. Survival

dominant lcaturc if the monopolist on the usc of f(xce depends on repressive

in areas of limited statehood and the possibilities of profiting from the pro-

strategies, if insufficient revenues arc obtained by ta.,>;ation, or ifmilitaryclul-

vision of protection services thus depend on one's relative ability to exercise

lcngers endanger a weakly institutionalized system of rule. But even if these

panial orders of violence arc llequently unstable, it should be clear that the
minimum prerequisite for the classification as governance consists primarily
in the quality of security as a collective good as well as the implications of

a necessary--albeit not a su!licicnt--condition for the ability to particip~1tc

as a competitive actor in the security market. In this context, the growth or

consumption and territoriality.

violent control of resources and social relations. Violence therefore becomes

sclf-dclcuse groups in Afghanistan that protect t hcmselvcs against attacks by

the 'J:1lib~111 or by unils of the Northern Alliance has to be considcn:d just JS

yK

(;ovcrning t\rcas o( Limned Statchoud

New !I'! odes of Security

much as that of security-market participants and well-organized <md militarily powerful rebel groups.
The spectrum of market participants can be extended still further. In

<N

pcrdas ;z,oo1, r87).u The prices that can _be demanded f(>r protection scnices

arc rhus cont:mgent on the number of armed actors, the degree of spatial

sub-

separation between competitoro, material opportunity structures, and al-

Saharan Afiica, this category includes not only rebel groups and local mili-

ternative options f(>r action for the affected population (e.g., flight or the

tias, but also criminal cartels, traditional flghters like the Kmnajors in Sierra

construction of self-defense units). I'vlore specifically, it can be expected that

Leone, and ad hoc groupings like the Area Boys in Lagos (Nigeria) who

greater competition among armed <Ktors will lead to greater investment in

collect protection money on transportation routes and at weekly markets

combat and resources and at the same time increase information deficits and

(see Bakonyi, l lcnsell, and Sicgclberg 2006 ). Another critical group of ac-

the difficulties in achieving credible commitments (Skapcrdas 2002, +3s).

is contrihul'ing to the increased complcxjty of security markets and

Moreover, economic models assume that decision makers--be they armed

conflict structures in war and settings of postconJiict peace building is that

actors or potential emrcprcneurs of governance-will consider the relative

of Private Military Companies (PMCs). Militarily highly specialized PMCs

bcneflts of two forms of economic activity: investments in the production

tors who

not only oftcr a variety of services on today's security markets but also oper-

of civilian goods and services or the investments in conflict perpetuating

ate according to free-enterprise calculations. Such internationally operating

means. 12 ln other words, violent actors em choose between the institutional-

companies as Blackwater or DynCorp arc the visible expression of a system

ization of a political order that guarantees ownership rights and organizes the

or the politically sanctioned delegation of selected security functions to com-

interaction between providers and recipiems of protection via a tax system,

mercial cntcrpri,es by states or private groups ( cf. e.g. Av<mt 2001; Leander

or a violence-mediated state of conflict, in which the civilian population is

2003; Musah 2002; Singer 2003). However, the involvc1~1ent of this group

used as spoils, or as an extractable resource, to finance the capability of these

of actors :liTccts the military power relationship and local conflict dynamics,

actors for violent activity. But even under the conditions of armed contest

as well as the calculations of state and nonstatc actors to outsource certain

between two or more violent groups, time-limited forms of cooperation arc

f(mns of the military act"ivity to private specialists. These security dynamics

not impossible. A prime example is the form<ltion of a time-limited alliance

turn out: to have particularly serious consequences in Colombia and Iraq.

in Sierra Leone during the mid-Jy<)OS between the government, commercial

Extcmal interventionists who support internal armed groups become them-

security companies (Gurkha Security Guards Limited, Executive Outcomes,

selves competitors fix resources and aggravate both the .available informa-

and Sandlinc International), and the self-defense groups of the Kamajor mi-

tional asymmetries and the int-ensity of conflicts. 10

litias to fight the rebels of the Revolutionary United Front (RUF) (!\lxiullah

From the perspective of conflict theory, the problem underlying the in-

and Muana 199X, 1X.1).

crease of armed actors is that reliable information :1bout competitive groups

Fundamentally, these considerations mean th,lt :umed groups em str:uc-

as well as mutually binding security guarantees become increasingly inse-

gically choose bcnvcen the provision of security and the maintenance of inse-

cure (Walter 1997; Cunningham 2006 ). However, the greater the number

curity. J-lowcvcr, the more promising military and economic prolits become,

of pmcntially violent state and nonstatc parties to a conflict io <lml the more

and the more uncertain a Ji.uure under conditions or peace appe,us (Fe;mm

inrcmc rhe competition becomes, the more significant arc infC>rmational

2004-), the higher the value of insecurity strategies should become. ln view

+++)

,!symmetries and commitment problems. Such dynamics not only affect the

of the structural characteristics of insecurity, .Stcrgios Skapcrdas ( wo2,

conflict behavior of armed actors, but also heighten the vulnerability of soci-

assumes a reverted shadow of the future, particularly in areas of warlord

ct,ll groups (i.e., the civilian population) who cannot provide J(>r their own

competition. The prospect or the elimination or competitors and of result-

security by private means.

ing greater profits imTC<lSeS the \'<l!Ue or violent COJlJlict Strategies, COillj1JI'ed

ln terms of economic theory, the market structures in the security realm

to ncgoti<ltcd scttlcmems. For the civilian population this has fJtal conse-

can be described as an unusual form of monopolistic competition: each

quences. First, the demand J()[- protection services rises with the increas-

or insecurity; however, the free choice of protection providers is

group establishes its own, spatially delimited monopoly of protection, in

ing degree

which it must pmvide credible proof of its ability to provide security (Ska-

greatly limited. Second, the risk increases th,lt actors in the conflict will turn to

100

Governing Arras ofLimired Statehood

strategies of indiscriminate violence (Kalyvas 2oo6; Weinstein 2006; Olsen

2007; Wood 2008) and promote diffuse insecurity. Both empirical evidence
and formal models have provided evidence that arbitrary violence and destruction of property arc more probable in zones of strategic insecurity because of an asymmetric distribution of information and multiple materia]
insecurities (Skaperdas 2001, r88; Kalyvas 2006; Weinstein 2006 ). However
the ability to cause either security or insecurity (or both) becomes a political'
and economic resource, and hence an alternative source of power. As a result
the price for protection services increases with the military capabilities of'
potent armed actors (Mehlum, Mocne, and T01vik 2002). Theoretically, the
production of (in-)security is thus immediately tied to the logic of violence
and resource extraction.
To sum up, in the context of an increasing tendency toward fragmentation
of d1c actors' spectrum, as well as the associated implications for the forms of
security, d1C concept of the security market describes the structure and composition of the supply and demand side in the provision of protection commodities and its temporal and spatial coincidence in areas where the provision is not monopolized. Similar to corporations on regular markets, violent
groups calculate their profit margin of investments in the supply of securitythat is, whether to invest in the production of a secure environment (areas of
strategic security) or to perpetuate the violent appropriation of resources.

"Opportunity Makes Thieves"

ill

ii/.11

The structure and dyn~m1ics of security markets, like the question of the qual
ity of security, cannot be adequately understood without considering the
ch:mging opportunity structures in areas of limited statehood. If there is any
truth to rhe popular saying "opportunity malzes thieves;" it should be considered that the absence or breakdown of states creates extraordinary opportunities for entrepreneurs of violence to either enrich themselves by looting,
extortion, or resource exploitation, or else to offer protection against looting
by violent groups.
Theoretically, structures of opportunity encompass the conditions under
which actors formulate preferences, make decisions, and act (Siverson and
Starr 1991; Most and StaiT 1980; Collier and Hocfller 1998). In the research
into the causes of war, they have often been used as explanatory fac!"Ors for
the probability of the outbreak of both internal and international warfare.

New Modes of Security

101

f{owevcr, both the twin concepts of oppormnity and willingness developed

by Benjamin Most and Harvey Starr (Starr 1978; Most and Starr 1980) and
UJC opportunity model of the \Vorld Bank group around Paul Collier (Collier
and Hoeffler 1998, 200+)J 3 are oriented toward the relatively static bounda!)' conditions of methodological nationalism (including borders, number of
dlC neighboring states, or primary-goods exports). Beyond that, the approach
developed by the VVorld Bank group relates the motivation of armed actors
primarily to greed and the relative share of the export of primaiy goods to
the overall volume of export (cf the critique by Cramer 2002; Fearon 2005 ).
Moreover, Collier and Hoeffler (1998) see structures of opportw1ity as preexisting factors in conflicts between rebel group and governments that primarily
reflect the conditions that increase the risk of the outbreak of civil wars involving two conflicting parties. But precisely under the conditions offailing states,
opportunity structures and the configuration of actors may shift, both in time
and space. Resources may be completely exploited, the emergence of splinter factions, and the inte1vention of external actors may change the balance
of power between coni1icting parties, or one of these parties may over time
establish a dominant position within a defined territory. The term opport1mi~!'
structures is therefore used herein as a broad category that encompasses all material and territorial options actors llnd under conditions of time and space,
and thus refers both to incentive structures favoring the perpetuation of violence and to those factors promoting the establishment of orders of violence.
Dominant armed actors GU1 then decide how and to what end they wish to
apply force; unilaterally against the population, offensive against competing
violent groups, or defensively as reliable protection provider for the civilian
population against internal and external threats. Economic and geographic
structures of opportunity, which we will discuss in greater detail in the following section, arc thus theoretically especially informative in this context.

Econmnic Opportunities
The lack or breakdown of security guar<mtccs ollCrcd by the institutions of
the sovereign state favor both conflicts over access to resources and targeted
looting strategies. Basically, material structures of opportunity refer to all
available resources that can be extracted and thus used to guarantee one's
own capability to exert force. Areas oC strategic insecurity arc therefore most
likely to arise in resource-rich areas: the greater the wealth of resources, the

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l~ovcrnmgArca~

of Limited StatchPod

New /\'lode:-. oC.Sccuntv

higher the probability that new cnu-cprencurs of violence will appear

the

ll'hich they might produce new resources ro loot. Bmh problems imply a

security market and compete with one another. Conscgucntly, the incentive

m:1rgina! utility orlooting over time.

These issues arc closely related to organizatiotul dynamics-that is, to

011

structure to continuously apply military force and to produce insecurity will

be greater. The insight that the type of resource itself ailccts the risks of the

rhc degree oforg<mization of the armed organization. If military capacities o.-

occurrence and perpetuation of organized violence is even more funda 111 ental. Empirical studies reveal that the effect of diamonds and oil is highly

pand, the expenditures i( 1r the maintenance of a military organization ~-pay

ment fi1r the combatants and maintenance of military Cl]Uipment-incn:.asc

significant, while agricultural goods, by contrast, arc hardly significant at all

at tl1c same time. Jn other words, an increased degree of organization implies

(Fearon

2005;

Lujala, Gleditsch, and Gilmore zoos; Ross

2004).

The extrac-

;tr!

higher maintcn:mce expenses and hence ~111 increased demand {(Jr resource.'>.

t inn practice of guaranteeing one's own freedom of action by mining mineral

The nurginal utility of looting can thcrcf(;rc occur in a dual manner: first,

resources leads to a dilkrent logic of security and different constraints than

via overlooting, by which noncoordinated looting and the potc11ti~1l increase

does the looting of the civilian population. While the extraction of natura]

of armed groups in effect result in overplundcring and the Joss nf potemial

resources primarily poses logistical chal!cngeo, such as the securing of extrac-

profits; and second, the profit no Junger covers the regular expenditures of

tion and storage sites and transportation routes, the taxation of humanitar-

maintmance. According to economic theory, the positive bcncfici<Jl effects for

ian aid and the looting of the civilian population by predatory gangs, rebel

the civilian population increase with a minimum of security, since it cantnvcst

groups, or regular soldiers tends to be carried out in a more ad hoc and often

in production instead of protection services. A wc!J-establishcd armed orga~

uncoordinated manner. To put it in more general terms, the f()rms of the

nization can therefore certainly seize a dominant position in the course of the

financing of violence can vary in time and space, even within single conflict

conilict and tl1en take the opportunity of sh;Jring in the prollts of increasing

zones, and in each case generate specific strategies of violence and insecurity.

productivity by taxation of protcct~ion in a defined territory--and thus institu-

Resources not only create the risk of the emergence of violent conflicts

.iiJ

IC13

tionalize the initial rudimems ofan order of violence.

and provide opportunities for enrichment, they arc aJso a critical quantum

In a1-cas with only weakly organized armed organizations by comrast,

borh f(lr the survival of the civilian population and of various types of armed

the civilian population can theoretically be considered as a tl-cc!y accessible

organizations. While the civilian populaLion in resource-rich zones is sub-

resource, and is thus constantly endangered by ovcrlooting (sec Kurri!d-

jected to the specific risks of indiscriminate violence (V)lcinstcjn

Klitgaarcl and Svendsen

2006 ),

d1e

recruitment of new fighters is more diflicult in resource-poor regions if they

2003,

257). 1+ Jn situations of competition between

armed groups, these conditions in fact intensif)r. Under conditions of in com

cannot be economically compensated. However, a substitut-e strategy is avail-

plcte information armed groups most likely come to no mutual Jgrccmcnt

able l(Jr the leadership of armed groups under certain conditions: if rebel

as to where and to what degree looting is to he undertaken, so that the prob-

gmups, warlords, or local militias arc unable to distribute profits or maintain

ability of ovcrlooting increases. A!togeLher, it is to he assumed that ;1rc1s nC

materia! motivation, they can rely on social relationships and provide cred-

limited statehood arc ohen exposed ro the risk of ovcrlooting. A sustainable

practice of extraction that allows lin regeneration phases f(lr the population

ible pmmises of future payments (VVeinstcin 2005, 599 ).

Particularly specialized entrepreneurs of violence make profits by looting

can theoret-ically hardly be expected in situations in which ;mncd groups arc

nnd protection services, thus jacking up the "protection screw'' (Mehlum,

highly iiacturcd into splinter LJCtiuns and in which there is a high demand

Jvlocnc, and Torvik

for resources ~md specific organizational structures.

2002).

Looting has a dual function here: first, it enables

better mobilization of resources to permit the financing ofcomhat; second, it

permits expenditures for the pay lor combatants to be reduced (1\zam

2006).

In the long run however, the looting of the civilian population also raises two

Gcrtrnrphic Opport11nitics

pmbkms: on the one hand, the number of competitive armed groups can
rise over time, and hence, too, the number of violent incidents; on the other,

In addinon to the material struct lilTS ofoppornmity, geography is imuitivcly

this sit11ation permits no phases ol regeneration l(Jr the population, during

a critical momentum for the explanation of the dynamics of violence and also

ro+ Governing Areas of Limited Statehood

New Modes ofScclll'ity

for the development of security markets. Appropriately, research on international war began as early as the 1970s to concepmalizc such geographical conditions as direct neighborhood and spatial distance as explanatory factors for
the occurrence and diffusion of armed conflicts and wars (e.g., Diehl 19 91 .
Starr 1991). Somewhat belatedly, recent civil war research bas discovered the
)

mained state-centered and oriented solely toward conflicts between governments and rebel groups. However, in areas of limited statehood, one can

forests and mount"ains, not only affect the manner in which internal violent
conflicts are carried out but also arc important in determining the prospect
of winning a battle or the war (cf. Gates 2002; Buhaug and Gates 2oo 2;
J3uhaug and Rod 2006). At the same time, geography also limits the number
of potential violent actors and provides information for an understanding of

severely limited or has broken down and several entrepreneurs of violence

compete as providers of security or perpetrators of insecurit-y. An immediate
result of these developments is the vulnerability vis-a-vis outside threats (sec,

organizational logics of violent groups. Both formal models and empirical

evidence indicate that greater distance between contending groups affects the
probability that competitive violent groups will emerge (Gates 2002, 127).
Particularly linked to geographic opportunity structures is the concen-

arc characterized by the fact that the state's control of the usc of force is

for example, the external interventions in Somalia and Democratic Republic

of Congo).
Geography has yet another dimension. It not only creates certain struc-

ttation of resources affecting the possibilities of canying out certain forms

tures of opportunity f-or political action or certain risks for the escalation
0 { violent conflicts, but also has an inherent significance and an identity-

of violent control and making profits from the resource extraction. First,
one has to bear in mind that nan1ral resources differ considerably in their
concentration and location (Lc Billon 2oor, Ross 2004-). Second, centrali:ocd resources such as petroleum and easily accessible mines arc consider-

building function for the development of security-related governance structures or even statehood (Knight 1994; Murphy 1996). Referring to Sack
(1986), we understand territoriality here as a spatial principle of the organization of social interaction and control. On the one hand, territoriality refers to

ably easier to monitor than geographically widely dispersed resources, such

the structural problem of shared boundaries and neighborhood; on the other

h<md, it also has a clear political-organizational spatial frame of reference <Uld
involves a linkage of space and time with control and power. 15 Territorial con-

as opium plantations, alluvial diamonds, or tropical forests. Third, a critical

aspect is the proximity to the headquarter of a rebel group or th9 capital of
the state. It has been demonstrated empirically that nati1ral resources that
arc located near the capital of a country can be monitored more easily by

trol thus is an indispensable precondition for the specific and independent

the existing government than more remote extraction sites (Lc Billon 2001).

force. At the same time, this has implications lor our understanding of governance: security is more closely tied to the conditions of territoriality than

The reverse is just as true: the further a potential extraction site is away from

1111'

may accelerate a decision to accumulate the means of exerting force and to

emerge as a local security provider.
One wcalmcss of previous approaches has been that the analyses have re-

assume neither the presence of a state with a fully functioning regular army
nor a dyadic conflict strucn1rc (state versus rebel group). Instead, these areas

"geography of war;" Current studies show that topographical variables, like

.:I !~

101

extraction of natural resources and the implementation of control by military

the state center, the easier it is for nonstatc armed groups to appropriate
and the more probable will it be that violent conflicts, and hence areas of

other consumable durables. Even "nev/' f(nms of orders of violence, such as

strategic insecurity, arise. Rebel organizations that operate in resource-rich

regions will, in the course of the conflict, in turn be confronted with a "princi-

Somalia during the 1990s, draw upon the norm of territoriality.

pal-agent problem" (Ross 1973): if their combatants operate in remote areas,

they will be diflicnlt to coordinate and monitor internally. To respond to this

the warlord systems in Liberia, the Democratic Republic of the Congo, or

Conclusions

dilemma, there are two contrary strategies: either, a high degree of military
organizational forms, as in the case of t~1c phenomenon of warlord systems

Linking security with governance stimulates an interest in the handling of

violent conilicts and threats, in scrutinizing the modes of protection, the

(B<lkonyi, Hensel!, and .Sicgelbcrg 2006). But even without access to valuable resources, the distance f1:om the capital or from state security guarantees

provision of security services, their linkage at diHcrcnt levels of analyses, and,

thereby, in the formation of alternative security structures. Since areas of

and social control, such as guerilla movements prefer, or more decentralized

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C~overning Areas of Limited StJtchood

limited statehood can be characterized both by zones of permanent insecurity and by the institutiorulization of protection ~md taxation systems (areas
of strategic security), structures of politic.1l and soci<ll order emerge only in
the second variant that arc interesting fiom a governance perspective-and
which should ultimately be examined in terms ol efllciency, effectiveness, and
:1lso aspects of stability and legitimacy.
Security as a governance commodity is directly connected to the ability
to perf(m11 control over violent means and to provide protection goods.
Therefore, it must be taken into account that the provision of security has
an explicitly territorial component and is tied 10 the logic of the usc of fence
and of resource extraction. Changing geographical and economic structures
of opportunity contribute to the fact that even nonstate armed groups may
prefer the provision of security to the use of violence against the population,
particularly if considerations of cflicicncy predominate. ltJ this context, the
making of govenuncc should be expected as a preferred strategy of exerting
comrol over J dcJincd territory and population under certain material conditions (i.e., within economic valuable territories) in order to overcome or
balance the risks of survival and negative economic effects (overplundering)
in;rnncs of permanent violence. The formation of security structures may fail
or turn into the unmaking of governance if armed groups abstain to provide
both a minimum of internal security and deterrence fiom external threats, resources arc limited or become scarce, and support within the armed group or
population decrc:1ses. While Sonulibnd (1991-) and Pumland (1998-) clearly
represent alternative formations of security governance beyond the state,
p.utially instirutionalizrd macronctworks of strategic security like "TaylorLand" in Liberia (1991-96), "Nkunda-Laml" (:wo4-) in the Easrcrn Congo
or the Islamic Courts in Somalia (1999-200(J) srand for the conflicllTJ! making of security structures within war-Ulrn areas of limited statehood mul for
the failure or tTansitional character ofwch orders of violence.
The potcntial paths of governance fcmmtion dismsscd here suggest, first,
that the provision of security as a govcrn~mcc service can be provided hy a
v:~riety of nomt.1tc groups without the state; second, that it 111~1y he organized on the basis of a variety of regulatory structures and processes (diflcrcnt organizational f(mns and degree; of instittJtiomliz.ltion); and I hird, that
it v~1ries in its d1cctivc range (territoriality and consumption). !vloreover,
recourse to considerations of conflict theory (opportunity structures) and
f(mn~1 l ccunon1ics (markets of sccurity"or protection) in governance research
is more than worth it. As it has been shown, the quality of security has to be

New A1odcs uf Sccurhy

107

linked to the functional logic uf the markets of security' in areas of limited

statehood. At the same Lime, economic or geographical opportunity structures shed light on the cundit ions under which entrepreneurs of security
governance choose bet\vccn strategic actions (production uf goods and services versus investments in conllict perpetuating mcam).
Conceptually, om conligurational logic of (in )security in areas of limited
statehood shows similarities to other considerations concerning the coexistence of alternative insr-itutionalized orders such as "de !acto states'' (!'egg
199 s), "states-within-states" (Kingston and Spears 2004-), or "unrecognized
quasi-states" (Kolsto zoo6 ). lvlorc speciliGlliy, our approach indicates co!Jscious points of reference tu the concept of "markets of violence'' ( Elwcn
6
19 99 ),' which has been systcm.1tized recenrly along a continuum of the instiwtionalization of puwcr. JuttJ B:1konyi and Kirsti Stuvoy (.wos; 200(,)
distinguish bet\VCCn tWO ideal types of ll011State orders of violence: warlord.
configurations, which constitute an only weakly instin.ttionali;r,cd type of
order, arc not territorially consolidated, and hardly have any organi;r,ational
apparatus; and quasi-stJtcs, which are best characteri7xd as highly institutionalized orders of violence ak.in to b.1sic functions of the st-ate, hut which
may not enjoy f(xmal recognition by the international community (such as
Somali!Jnd). Nonetheless, qua:;i-states have monopolized the provision of
sccurityr within their territorial ~11-cas of inJlucnce and control parts of a territory, together with its economic resources (cf Bakonyi and .Stuvoy 2006,
.p--.p). Both variants ultimatelv indicate the coexistence of alternative structures of security arrangements in areas of limited statehood. But whereas
Bakonyi and Stuvoy reflect security only as a byproduct of the institutionalization of power, the advantage of linking security with governance lies in
focusing anention on the iJJtcnLional provision of security f(Jr defined social
groups ~nd providing both micro!(Jtmdatiom f(lr the institutionalization of
dificrent qualities of sccurityr and for changes in the temporal and sp.1ti~ll
dynamics of violence.
That docs not mean that the state loses its significl!Ke entirely in such
areas. It rnay very well remain the ccntr;JI fiamcwork of rcfL'I"Cllce f(n nonstate armed actors ;md also fits well into the logic of structmes or opportunity. The example of "1l1)rlorland," which at times cmhr~lCcd over <JO perccm
of Liberian territory and developed a cmrcncy and even a banking system
of its own, dcmonstTates that institurion;Jiizcd securitY svst"ems can break
down again relatively rapidly if the constellations ch~11~gc: Despite tl1e territorial and economic independence that Charles "Ewlor cq~1hlished within

ro8

Governing Areas of Limited Statehood

New Modes

his system of rule, 'Taylor finally, in 1997, aimed for the presidency of all of
Liberia-with the well-known result of the renewed escalation of violence
in the war in Liberia and his arrest in March 2006. Aside from the ultimate
fate ofTaylor himself, it is clear that the state apparanrs and the perspective
ofintcrnational recognition remain important resources, both internally (political legitimacy, advantages over political rivals) and externally (e.g., in the
form of international financial aid or by access to international assistance).
It can therefore be assumed that opportunity structures such as the form of
a state and the norm of sovereignty will in the future continue to determine
the options for action of (some) private armed groups.

or Security

109

discussion, Baylis 2005) and widening the concept to include nonstate actors as cnucpreneurs of security governance strengthened by state collapse and the dynamics

of internal wars.
6. Vlc concemrate here on security dynamics without or beside the stare and will,
therefore, not discuss other possible forms such as "governance witl1 government." A
good example for tl1e latter is provided by Elisabeth Jean Wood (2.008). By exploring
different social processes of civil war she illustrates the emergence of "insurgent governance" in Sri Lanka by the Liberation Tigers ofT.<mil Eclam (LTIE). Since the early

19 9os the L1TE has drawn on state administrations and has cooperated with government civil services, but at the same time has maintained core functions of protection

and control over territory (VVood zoos, 551).

7 Empirically, this pattern often can be found

Ill

cases, in which fcl!'mer rebel

groups or warlords tal<:e part in elections to run for office.

NOTES

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8. Jn this context, we will distinguish between security :md means of protection.

The concept of rhe "security market" refers to tl1e structure and composition of

While security can be seen as an aggregate state characterized by the absence of physi-

the spectnrm of actors as well as tl1c interaction of supply (provision) and demand of

cal violence toward a defined group over time, protection cncompascs all measures

1.

necessary for the production of security. Protection is thus the active process of tl1e

and for security.

2. Security governance thus incorporates the regulatory structures and processes

provision of security and hence the major asset traded on security markers.

by means of which security is provided intentionally as a collective good for a defined

9. These considerations are based on the guns-and-butter model (cf. in greater

group of recipients. Hence, tl1c present article operates with a minimal definition of

detail Powell 1999, chap. 2), which compares investment in civilian means of produc-

governance, without addressing here the broad range of differing definitions. Our

tion versus military capacities.

understanding of security governance also differs fi'om Krahmann (2003), who ap-

Particularly in areas of limited statehood some security companies take their

plies the term to tl1e emergence of complex security structures in Europe and North

pay in the form of cxploitat"ion licenses for the extraction of valuable resources and

America.

become protagonists in the war-economy systems. They not only profit from zones

J. The analytical distinction common in the debate over the privatization of se-

curit;' between top-down processes of the delegation of functions to private suppliers,

i.ll.lit

10.

of insecurity but also contribute to their perpetual ion (J\tlusah and Fayemi 2.ooo;
Pech 2000).

and bottom-up processes of local sclJ:organization of security appears adequate at ilic

II. Andreas Mehler (2003) argues that over time, homogeneous or heterogeneous

outset, in order to obtain an overview of the multifarious suppliers of security (cf.

oligopolies of violence emerge. Such considerations on the production of violence

Mandel 2003; Bt;'den 2006). In contrast-, its analytical utility is restricted: first, it

and security via market mechanisms, while innovative, nonetl1eless go only halfway.

establishes no immediat-e theoretical correlation between the shortage and tl1e active

First, the concept is confined to violent actors directly involved; and secoml, it E1ils

provision of security; second, neither the forms and expressions nor the quality of

to

+ The central gml

adcquat ely theorize the question of the consumption

or security.

12. Hirshlcilcr (2ooo) as well as the excellent Sllllimaty by Carfinkel and Skapcrdas

security arc differentiated.

functions of the usc of force arc in the short term one's own

(zoo6).

usc force, and tl1e seizure of control

13. Collier and I-Ioeffler argue that the outbreak of warbrc can he explained less by

oLm area. In the long term, they include the protection ofthe comrol against internal

the political motivation of the actors than by the oppornmitics fiJr economic extrac-

and external challengers.

tion and accumulation in crisis-torn areas, i.e., via "at;,pical circumstances that gener-

survival, the ability to finance one's capabilities

to

5. vVc rhus oOcr a middle-ground strategy between the classical definition of secu-

rity as the absence of existential threats to a political unit (sec, for a comprehensive

I
t

ate profitable opportunities" (200'1-, 56+).

~~-.

Nonetheless, such ovcrlooring-rclatcd arguments like those developed by

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New /11c,Jcs ofSccnnc)'

(;ovcrning Arc,Js of Limited Statehood

110

Olson (1993) or Kurrild-Klitgaard and Svendsen (2003) have the problem that they

;Uld M. Caparini, 1-19. Geneva: Geneva Centre for the Democratic Control oC

merely auach tl1e extraction logic of violent actors to the civilian popul.1tion, but leave

Armed Forces.
Buhaug, I-Lllvard, and Scott Gates. 2002. "The Geography or War?' journal ofl'mcc
Rcscfl.rdJ 39, no. 4-:417-33]luhaug, Jialvard, and Kjetil Rod. 200(>. "Local Determinants ofi\liican Civil Wars,

aside alternative structures of oppottunity,

11.

Sack (198(,, 19) defines territoriality as "attempt by an individual or group to

ailcct, influence, or control people, phenomena, and relationships, by delimiting and

16. Elwert (1999, R6) defines "markets of violence" as ''economic fields dominated

1y7o-2oor?' Politiml Gco<qmpby 2_1, no. J:oli-35Cirojnacki, S\'Cn. 2007. "(Un- )Sichcrheit, Gcwalt und CJovemance. Theoretischc
I-Icrausl(mlcrungen fi.ir die .Sicherhcitsforschung." In StaatszCT:fal! und GoPcmnllcr,

l.>y civil wars, warlords or robbery, in which a sclf:pcrpctuating system emerges which

edited by Marianne Beisheim ami Gunmr Folke Schuppert, 2]6-(,J. Hadcn-Baden:

links non-violent commodity markets witJ1 the violent acquisition of goods?' As

Nomos.
Collier, l'aul, and Ankc 1-Iodlkr. ry9~C "On the Economic Cause of Civil vVar." Oxjimi

asserting control over a geographic area."

highly profitable systems these markets may achieve stability len certain periods of
time.

Ecrmolllir Papers so, no. 4:563-73

- . 2004. "Greed and Grievance in Civil vVar:' Oxford.EamomicPnpcn s6, no. 4:563-95.
Cramer, Christopher. 2002. "Homo Economicus Goes to \Var: Methodological Imiivichw.lism, Rational Choice, and the Political Economy of War?' 11/orld DCJ>clopmmt
30, no. ll: 18"e_1--6+.
Cunningham, David E. 2oo(1. "Veto !'layers and Civil vVar Duration." American Jour-

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114

Governing Areas of Limited Statehood

Weinstein, Jeremy Jvl.

"Resources and the Inf(mnation Problem in Rcbe] Rc-

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11-ansnational Public-Private Partnerships

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<-Uld the Provision of Collective Goods

2005.

in Developing Countries
ANDREA LIESE AND MARIANNE BEISIJE!l\1

KANSNATIONAL

PUBLJC-l'RIVATE

l'ARTNERS!l!l'S

(PPPs) arc often described as an innovative f(xm ol governance, in

which nonstatc actors (e.g., nonprofit organiz;atious, companies)

together with state actors (e.g., international organiz:nions, donor agencies)

perform functions and provide services that prcviomly rested firmly within
the authority of sovereign states. 1 These actors jointly govern across multiple
levels (transnational to local). In the OECD world, community-level Pl'Ps
often complement or supplement governmental rcgulatiorJ or services (Vaillancourt Rosenau 2000 ). l n at-e3s of limited statehood (sec Risse, chapter 1
in this volume; and Risse <md Lehmkuhl 2ooo, oo), however, the situation
is quite different. Here, PPPs often have d1C goal of providing collective
goods: They may provide rules or services that were simply absent before,
or, alternatively, PPPs might substitute state activities in a situation of state
lil:i''

failure (cC Posner 2004-,

2.3') ).

For instance, a transnational Pl'l' such as

"Water and Sanitation for the Urban Poor" aims at providing access to
and sanitation for people in urban slums.

\\'<llcr

In this chapter, we seck to explain under which condihons transnational

PPPs successfully provide collective goods in ;Jt-cas of limited st;ltchoud. In
other words, why are some tramnational !'PI's highly effective while others

International Legal and Moral Standards

of Good Governance in Fragile States
BERND LADWIG AND BEATE

RAGILE

STATES

ABOUND

IN

THE

WORLIJ

Runou:

TODAY.

The reasons for state fragility vary greatly, fiom ethnic temions, social
unrest, or increased migration caused by economic or environmental

factors to interstate conflicts oYer territory or resources. J\s a result, nttmcrous

entities that arc considered to be "states" under public international hw ::m:
tmablc to exercise power over all their territory or in all policy fields. Yet,
even if a state, by its flagility, verges on dissolving or being

J.

"fJiJing" or

"failed" state, it remains a state in the legal sense. This charactcri7>:ltion hardly
squares with the traditional requirement of the definition of a state according,
to which its authorities must exercise cfkctivc !'ower over its population and

territory. Yet, through this legal fiction, imernatioll:d bw protects "bilcd"

states Ji-om becoming term md!im :111d hence the object of military conilKts
for its annexation.
Ncvenhclcss, the lcg<1l fiction docs not mean that sovereignty is an impenetrable shield ;mel that statehood is recognized unconditionallv. 1(Jday, so\Trcignty hJs become a normatively laden concept. States arc bound, in their ac
tions, by human rights, the rule of law, :llld the obligation to be rcspomive

tc>

the needs of their populations ::md to ensure thci ,-political particip.ltioiJ. These
demands stand 111 tension with the {;let jn'il mentioned that fiagilc stJtcs <liT

zoe)

State Building and (_~ood Go\'crnancc

unable to fulJill even the basic function of states-securing internal pe,lCe-Jcr

alone the more ambitious normative standards of good governance.

il

'Ill

lJii'llli'ftl

.em

rem: the legal-nut bctual- equality of states. Because of this ''sovereign

equality of states'' (article

2.1,

U.N. Charter), a state GU1!1ot be bound under

In discussing solutions to this tension, we will proceed as follows: we will

international law by a treaty concluded between other states against its will

show that the rather ambitious sundards of good governance are already

(article H, Vienna Convention on the Law of Treaties), even if these states

part of positive law, and that they also can be justiJ1cd by a rights-based ap-

arc more powerful than itself

Nthough sovereignty has not changed conceptually, its appearance differs

proach of political morality. Applied to conditions of fragile statehood, the

"I

lntcrnati<llMI Legal and lvlor,d St,mcLtrds

criteria pose problems oflegitimacy on two logically distinct levels. We argue

from earlier times. Jvlost relcv;mt for prcsellt purposes is the extent to which

that this gives reason to f(xus primarily on a responsibility to rebuild, which

states have limited themselves through imernational law. In panicular the

is already recognized by international law. It encompasses, in particular, the

states' reserved domain was reduced considerably through rules that regu-

obligation to establish institutional structures and social cohesion that may

necessitate taking nonstatc actors into account. v\Te conclude by finding that

late the internal actions uf states. 1\s a consequence, the scope of application
of the prohibition of (nonmilitary) intervention shrank enormously: other

not only states, but nonstate actors and the international community arc

states and international organiz,1tions arc allowed to take an interest in state

bound by international legal standards of good governance.

actions in areas hitherto within the reserved domain of states. vVith these

In our contribution, we develop a normative concept of good governance

subject-matters turning into objects of international concern, the absolute

based on public international law and political morality that is built on the

protection of states through the prohibition of the usc of force became in-

<UJJlytical concept of governance as explained in the introduction. Our focus

creasingly problematic. This development: is reflected in the debate on "lm-

is on tiagile states, that is, areas of limited statehood nearing the end of the

manitarian intervention:' whether unilateral or based

continuum, where governance is rarely, if at all, achieved by the state. For

U.N. Security Council under chapter 7 of the charter.

A second important change nf sovereignty occurred through the au:eptancc of states that certain rules of public international law arc pcrcmptorv

this reason, the question of normative standards [()! governance by nonsratc

actors and the international community is particularly urgent.

011

a decision

or the

norms (ius CIJ,!fCIIS) and hence cannot he clungcd hy agrccmems between in-

~II Hlj

~IJijH!Iil1~
',,,j'

dividual stares (article 53, Vienna Convention on the Law ofTI"catics). These

Normative Dimensions of Sovereignty

Under Public International Law

"

rules of i11s

Cl(f[f1lS

embody the ii.mdamental values of the international legal

order. Conscclucntly, any exercise of state power in contravcnt ion of these

norms constirutcs a grave assault on the int:crnat:ionallegal order. J\1oreover,
and even more important in the prcscllt context, the existence of illS

CriJJCllS

proves that sovcreignt y is not absolute, but that, on the contrary, there arc
iJI1illl:l1111"~1

Under present-day public international law, sovereignty is not what it used

to he': during the "classical" period of international law, sovereignty meant

MHiliili.IH;j

the exclusive legal power of a state to regulate matters within its own terri-

jljl

torv according

i[!: 1

iiiliiiiiPifl:l\1

some absolute limits to sovereignty.

to

its own will (Lautcrpacht 1997, l+o). Since the end of the

Goorl Grwcrnrmcc

First: I'Vorld \Var and with an ever increasing speed and substantive scope,
states have concluded international treaties by which they limit: their free-

As these considerations show, stcmdards of good governance under public

dom of action, both within and outside their own territories. \ 1Vhilc some

intcrn;Jtional law arc compatible with (intcrnatio1ul) sovereignty They em

conclude, therefore, that "sovereignty on the international plane ... must be

be undcrsrood as normal"ive dimensions of (internal) sovereignty. Jn addi-

seen largely as a myth" (Lllttcrpacht 1<)97, I+Y ), others rightly propose that

tion, t!JC)' have become relevant l()r international sovereignty in the context

the meaning ofsovcrcignty has not ck,nged (.Schrijver 1<)<)9, 91\) . .Sovereignty

of n:cognition of new starcs 2 ;mtl Jr1r the determination of whether the 1m>

today still means what it meant since the beginning of the \11/estphalian sys-

hibition uf inteiYcntion applies.

~02

Sure guilding and ( ~ood ( luvcrn.mcc

'](1

determine the normative dimension of smercigntv the vuicJLI5 . b.

I'll he
HIIcrnanonallaw standards of good governance will be examined 111 a nar.

''

a higher status under public intcm,1tional Lnv because they embody fllnda-

'

mcntal values of the international comnmnity Consequenrlv, the realization

row sense, "Good Governance'' is a concept within the context of devclo _

of these rights is a matter of priori I:\'.

Some human rights arc considered part oCiw CI(!JCW. Hence, states cannot

fn a more general sense, good governance me;ms the fnllillmcm of public

free themselves of these obligations. Tt is generally recognized that the pm-

mcnt cooperation, the meaning of which varies in diffcrcm lcgoJ cor t

'--

'--"

cxts.

intemational law rules on the way in which power must be exercised within

hibition of torture and of olavery as well as the prohibition of genocide <md

a state. fffidfilled, governance can be considered to he. "good governance:'' In

of racial discrimination arc such pcrempl'ory norms. Arguably, a pro hi hiti( >n

1hc f(1Jlowin~,
we shaH examine the central com11onents of oPood ~a 01 ,e 1-11 .~cr
,
in this broad sense: lmman rights, the rule of law, responsivmes,,, and public

of arbitrariness with respect to survival ,1ml basic needs also amounts to i11s
cq!]CIJ.\. 6

participation.

This follows from common article 3 of the Geneva Conveniions: if these

Thus, nobodv may he deprived of his or her life or liberty arbitrarily.

rights must be respected in an armed conf1ict under all circumst;mccs, they

apply a fortiori in peacetime. The. same holds true lc)r fundamental principks
of fair rriaL 7 For !'he. same reason, the equal value of all human beings and

HUMAN RIGHTS

the right to be recognized as a person under the law constitute peremptory

The most important category of 11uhlic international law rules on good gov-

rules. Consequently, no one rnav he denied access to means of survival only

ernance arc human rights, because they regulate the exercise of power within

because of his or her gender ur because he or she belongs to

a st;ltc. On the universal level, the cmtral sources arc the International Cov-

(ethnic, social, or mher) group.

J.

particubr

enant on Civil <md Political Rights (ICCPR) and the International Covenant

Another category ofhigher-ranking human rights arc nonderogable rights,

on Economic, Social, and Cultural Rights (ICESCR). Alongside these trea-

tl1at is, rights tl1at cannot be suspended in times of emergency. In addition ro

ties, which guarantee human rights extensively (with the notable exception

the

of the right to property), human rights under customary international Jaw

cominuc to exist and thus build the minimum human rights obligations

principle of legality in the field of crimin;ll !Jw (n11llllm crimm, mt!ln ponw
sine lc,tp:), and the fic.edom of thought, comcicncc, and religion. The Human

worldwide-a minimum standard of good governance.

Rights Comminee adds the right of persons deprived of their liberty to be

The character of human rights as a yardstick for internal governance is

iw C!LffCIJS rights, article

"~.2 of the ICCPR considers as nondcrogable the

treated with respect fm tl1C inhcrem digniry of the human person; the prohi-

illustrated by the change of focus in tl1c important policy field of develop-

bition against taking hostages, abductions, ami Lmacknowledgcd detentions;

ment, where a "rights-based approach" is now commonly acccpted.J It re-

the prohibition of forced displacement of populalions; and the obligation to

quires swcs, both in their internal actions ((Jr their own development and in

provide for effective remedies against violations of human righr.,g l11s a!JJC71S

any dc1Tiopment cooperation,

and nondcrog<1blt human rights 1mpose obligations on stales that must be

l'O

devise an agenda and strategies with a view

to realizing htilll<lll rights. rJuman rights thus set the priorities for devclop-

respected under all circumstances.''

J)]Cnl; at the same time, development itself is understood as a process for tl1c
re,tlization oLtll human rights (Rudolf 2008). Under the internal dimension
of the right to dcvclopmem, every state is obliged to ensure development
10

its popubtion+ Thus, a state's governance is mea.,ured agJinst the reaJ-

APPJ"YIN<; TilE Hl!liJAN RI<;IJTS STANDARD

TO THE SPECIFIC SITUATION OF FRAC;ILE STATES

it:ation of human righls. Since all human rights arc "universal, indivisible,
<llld intcrdcpemlcnt," 5 there is no hierarchy between civil and political rights

For fl,1gik states, the problem arises th:~t universally applicable hmmn rights

(the "lirst gcncr.lliun" of human rights), and economic, social, ami cultural

impose obligzttJons thev lunily can meet, either f(Jr lack of dfective inter-

rights (".,ccond generation'' rights). Nevertheless, some human rights enjoy

nal regulatory or enfi)J-ccment power or li>r Llck of' sllnicicm means. The

A
zn+

lJ!lcrnational Legal and !\!oral St;llldards

St.llc Building and (jood Governance

>

')'

ou1

'

JCESCR takes the latter difficulty into account through the obligation to

Jararjon of Humau Rights docs not contain an obligation to "progressive

realize economic, social, and cultural rights progressively (article 2. r).1o Thus

implementation."

the covenant docs not require states to fulfill the rights immediately, but "t~
move as expeditiously and effectively as possible towards that goal;'u and "to
the maximum of its available resources" (article

2.1 ).

Even the "minimum

RVl,E OF LAW

core obligation" under each covenant right, namely "to ensure the satisfac-

r 1ilr:'
'1+.
1

r I

tion o( at the very least, minimum essential levels of each of the rights" is not

A second cote clement of good govcrnatJce is the rule of law. In numerous

l't

an absolute obligation, but must take into account the resource constraints

declarations, the international comrmmit")' committed itself to realizing this

within a country.)}. However, if a state demonstrably is not able to fulfill even

principle.'+ Although the rule of bw as understood by common law systems

lrflll [I~

the core rights, it is obliged to usc resources available through international

di!TC!s from related European concepts, namely, Ra!Jts:~tnnt and ctnt de droit,

1.l l
'

lilkr;,qjl'~~

11111lt~
i'llll!li'
'l, ill
i~l

lllll1fr.llllfll
1
. 1

lfl[

.:! 111&h 1:~11

cooperation and assistancc. 13 Whether the international community, in turn,

a minimum content derives from human rights. In particular, restrictions

is obliged to provide such help-as the ICESCR Committee assumes-will

of human rights arc permissible only if provided by law, that is, iC there is a
prior Jaw of general applicability that was properly enacted and is accessible

be examined later.
The lCCPR does not contain a comparable provision on progressive

for the public (Nowak

implementation of the rights guaranteed. This diftcrence reflects the-now

Jaws and their application must respect the principle oC cqmlit:y beCore the

outdated-understanding that civil and political rights contain "negative ob-

Jaw (article 26, ICCPR). Lastly, at least f()r criminal and civil matters, comrul

200.1,

article 19, marginal no. +6). Moreover, such

ligations;' that is, they require mere abstention, while economic, social, and

through independent courts is necessary (article I4-, ICCPR); in all other

cultural rights give rise to "positive obligations," that is, they necessitate ac-

cases of alleged violations of a human right, there must be an clTcctivc rem-

tion bv the state and hence the usc of financi<ll resources. Under a modern

edy (article 2.3, ICCPR). By these minimum requirements, the rule of law

concq~t of human rights, all human rights encompass three dimensions of

ensures that the supremacy of the law is upheld and dms that restrictions or

obligations-to respect, to protect, and to fulfill (Eide !989, 37; Simma 1998,

human rights arc foreseeable. For states that arc not bound by the JCCPR,

s72 , with

the supremacy of lavv and the independence of the judiciaty arc binding as

reference to Shuc !980 ). This means that the state has to abstain

fi'om interfering with the exercise of the right ("to respect"), it has to take

general principles of Jaw (Rudolf 2oo<1, 102+ and Rudo!C 2ooo, "1-86~93, re--

measures against violatiom of the right by private actors ("to protect"), and

spectively). No special rules apply to f!-agilc states because, as the 1-Tuman

it has to create the necessary social condirions for an effective exercise of the

Rights Committee emphasizes, the maintenance of l"hc rule of bw is most

needed in Limes of emergcm:y. 11

right ("to fullill"). Even the "respect" dimension may I"Ct]Uirc the state to take
(costly) action; in order to respect the right to a fair trial, for example, the
state must set up <UI independent court system. Equally, the "protect" dimension of the right to life obliges the state to establish a police force. Neverthe-

RESl'ONSIVENESS

less, it is no oversight that the JCCPR docs not limit d1c extent of the states'
obligations to their available resources. Rather, the immediate effect of the

"Responsiveness" as an clement ofgond governance means that govnnmctns

obligations arising out of the rights guaranteed by the I CCl' R reflects the

must be "responsive

to

the needs and aspirations of l"he pcoplc." 1(' The inter-

prer~isc undcrlyit~g that cm'cnant thar it is the purpose of the state to ensure

national comnmnity rcallirmed that "solid democratic institutions respon-

the Hobbesian minimum-physical security, both from willful violence and

sive to the needs of the people" arc a key factor Cor economic development.' 7

fiom f(JrCiblc sclt~hclp. Consequently, a state's fi-,lgility alone is no reason lor

The concept of responsiveness can be traced back to the ryil<' Declaration

lowering the standards of the I CCP R.

The same conclusion holds true for human rights under customary
international law. This is borne out by the fKt that the Universal Dec-

on the Right to Development of the U.N. General Assembly, which also

acknowledges the duty oC ;1JI states to pursue development policies aimed
"at the constant- improvemcllt of the well-being ufthe entire lKlpulation and

W(>

St.m Building and c;ood Governance

of all individuals, on the basis of their active, hcc :tnd meaningful participation."'S Consequently, responsiveness reflects the convic6on that human
beings arc at the center of the development process. It is thus closely conncct:d with participation: responsiveness is rhe purpose and-ideally-also
the result of p.micipation.
Tile international documents citeJ here do not permit the conclusion
th<lt responsiveness, in the sense of a duty to be respomive, exists under
public international law. Llowever, states arc bound by law to create centra]
preconditions of responsiveness. Freedom of opinion and li-ccdom of association are necessary for the population to lcmnulatc its demands toward
state authorities and to express its support for, or criticism of, state policies.
Only if the population can express itself without fear of sanctions wiJl state
autl~oritics brn of the people's needs and demands. Although such expressions arc more el1ectivc if based on sound facts, states arc not duty-bound
to provide transparent decision making: freedom of opinion docs not (yet)
mcompass a right of access to all inf(mnation :wailable to a state (Rudolf
2000, 1023)

'1' :1'1
l;ifi\,;1

/
l~lilliilffl11
11

Mcch,1nisms of accountability of public authorities arc a further means

of realizing rcsponsiYcness. With respect to policy makers, the most promising mcam arc political sanctions-the fear of not being reelected. Although
gc,ncd international law docs not oblige states to establish and uphold a
:kmocratic system, the human right to political participation provides a suf.
ficicnt ba~is l(n this political sanction of nonrcsponsivcncss.

PUBLIC PAKTICJJ'ATION

ost all definitions of good governance used by international bodies list

public p:nticipation as a constitutive clement (Rudolf2oo6, ro2o). ft is not
limited to a democratic system, although democracy 1s often referred to as
;\] 111

hcillf!; hclpf\d. Documents of the last decade put an emphasis 011 democracy
.Js being b;1scd on participation, vet fall short of pronouncing a legal obhgation w:icmocrxy.'9 Jn this vein, the vVorld Summit called democracy a "uni,crsalv;1Juc has on the flcely expressed will of the people" and its "li.dl partici11arion in all aspects of their livcs."m Thus, the international community
did not ;1flinn tlJC more cxtmsi1c approach of the Commission on 1I uman
Ri>'hts. ]11 ,1 contested rcsolmion, the commission had declared full popular

eli

p<l:~icipation to presuppose that all citizens can "tJkc rnrt

in the government

their country, direcliy or UJruugh li"ccly chosen representativeS:' that the

"will of tJ1c people shall he the basis oC tl1e authority of Government and
that this shall be expressed in periodic and genuine elections," that political
equality is essential to democracy, ami that popuiJr participation and contwl
"must be realized through a tl-amcwork of accessible, representative and accountable institutions subject to periodic change or rcncwa1.'' 21
Despite the reluctance of states to commit themselves to rhcse clements,
public international law already contains the legal bases for the obligation to
realize them: the right of peoples to self-determination (article 25, ICCPR)
and tl1c principle of equality, as enshrined in articles 2. r and 26 of the ICCPR.
The right to self-determination is the right of a people to determine fi-ccly
its political status as well as irs economic and social system."" Today, it is l"CCognizcd that it also has an internal dimension, that is, that every people has
U1C right to participate in the decision-making process of its Stelle (N01nk
20 o5, article T, marginal no. 3+ ). lvloreover, the right to selfdctcrminarion
has a permanent character; therefore, iris not "consumed" by its exercise, hm
requires expression in a continual process (Nowak 2005, article 1, marginal
nos. 17-18). Through both features, sell~determination has democratic clements. Article 25 of the JCCPR is more precise in that it guarantees the right
to take part in the conduct or public affairs, to vote and to be clcc:cd, and
to h;lvc access to the public service of one's own state. Thus, the provision
goes beyond rhc electoral process as a means of participation. Finally, public
participation in the conduct of the st<llc's afbi!s is a requirement Howing
fiom the principle or equality: ir all human beings arc "born Ji-ce ami equal
in dignity and rights" (<lrliclc I, Universal DecLu;ltion or Human Rights),
if discrimination based on personal lc:Jturcs such ;Js race, gender, or reli
gion is prohibited (article 2.1, IC:Cl'R), and if all arc equal hdcm' the law
(article 2(,, ICCPR), then no JKrson Ins the right to impose his or her will
on othcr.1 arbitrarily. Consequently, e\Tryonc must have a ,,1y in the cstahlishmem of general restrictions of a person's ficedom or action and in l"llC
dctcrmincltion of the course of the society he or she lives in .
0[

The obligation of states to provide f(Jr public participation exists also

ic>r states not parties to the TC:CPR. This conclusion is warr;Jillcd because
sclrdctermincltion ;111d the basic equality of all huni;1Jl beings irrespective
oC race, gender, or religion a1-c binding rules or customary law. Tlowcvcr, as
i\rticlc 25 of the ](:CPR docs not have ;m equivalent under customary law,
these st;Jtes arc not obliged to ensure participc1tion through elections, hut
may applr other procedures l(n establishing the will of the people.

20~

State Building and Good GovcrnaJlce

Moral Justification of the Normative Dimensions of Sovereignty

209

cure, inclusive, and nondiscriminatory access to basic goods each individual

\Ve will now transcend the bmmds of positive la1v and turn to normative po-

is morally entitled to, provided in forms and by means that arc themselves
compatible with human rights standards. This seems to be a tenable starting
point for explaining in a coherent manner the idea underlying the conception
of good governance outlined above.

liticJl theory. On the one hand, this widens the scope of arguments: political
philosophers should in principle feel fi-cc to make proposals for reform, even

A rights-based approach has tour adv~mtagcs. First, it is already widely accepted in principle, and also anchored in public international law, by means

Po.1itive Law mtd li!Iorality

regarding basic principles of existing law. The general reason is that any law

of treaties and custom, some of them even being ius cq_qcns. Consequently,

must be legitimate: although leaving open to its addressees tl1e motives for
compliance, one possible motive must be respect for tl1c law itself To tl1at end

it ca1mot be reproached for imposing particularistic norms on foreign cul-

its basic norms have to be compatible witl1 the basic principles of morality.
And notl1ing guarantees a priori tl1at an existing corpus of legal rules and
principles docs already fulfill tl1at demand.

sible starting point for constructing a fi"amcwork of moral norms that could
orientate further legal reform. Third, it rules out any purely instrumentalist

tures, at least witl1 regard to basic human rights. Second, it provides a plau-

approach of good governance, as favored in certain discourses on economic

On the other hand, morality itself provides us witl1 good reasons to talce

development. Fostering economic development might be a further reason

positive law seriously. The ultimate reason is tl1at to overcome any state of

for adopting a rights-based approach, but basically, realizing human rights

nature is a metanorm of political morality. Therefore, to ignore the norms of

positive law in tl1c name of a higher moral insight is morally wrong, and not
only because of the fallibility of our moral reasoning. In all such reasoning we

is not a mere means, it is a central criterion for successful development (for a

similar argument, sec Sen 1999, csp. chap. 2). Fourth, it docs not conceptu-

must talcc into consideration tl1c integrity of positive law. This is especially

II.Iii

Imcrnational Legal and Moral St,111dards

ally presuppose fully consolidated statehood and is therefore applicable in

principle to conditions of fragile statehood as well.

important in the case of international law, because more tl1an most national

From the point of view of a rights-based approach, states arc mere means

legal systems it is a law in tl1C making. That makes it highly sensitive to po-

for the full realization of valid claims of individuals. As such, they are in prin-

litical interests and power relations, but perhaps also open to moral insights.

ciple replaceable by otl1er structures of institutions insofar as state authorities

Improving international law means enhancing its coherence in accordance

with valid principles of political morality (Ladwig woo).
Now, as already shown, international law has incorporated some basic

lack the adequate means or the will to fulfill their core responsibilities. Even
passing over a stat"c's claims to sovereignty might be required if it is necessary

moral insights that together indicate a remarkable shift in interpreting its

to give individuals what they arc entitled to. The international community
bears a subsidiary responsibility, and even nonstate actors can be obliged to

ultimate purpose. Sovereignty is no longer seen as absolute and inviolable;

it calls for normative qualifications. In order to be justified, it must meet

play a role in securing access to basic goods. As we argue, building and stabilizing institutions that protect basic human rights is a cosmopolitan duty

certain standards of good governance. 'vVe have identified four components

binding each actor who is in an adequate position to do their share. Part of

that gain more and more acceptance in the realm of public international law:

the duty is helping weak governments; <lnothcr part might be acting in place

human rights, rule of law, responsiveness, and public participation. Is there

a pattcm of reasoned justification that can support these components and

of them, for example by means of nmltilcvel govcmance.

explain their internal normative relations~ In the following section we will

give a skctcl: of a rights-based approach.
vVc argue tbat all humans arc entitled to access to institutions th<Jt pro-

Hnnum Ri;_qhts

tect their basic rights. 2 ' In that respect, at least, states and other structures
of institutions arc never ends in themselves. Political a\ll'horities arc basi-

Human rights can be justified fiom dilkrcnt moral staring poinrs, 111 accordance with more than one comprehensive doctrine, religious as well as

cally legitimate insofar as they arc suited and necessary ror guaranteeing se-

secularist ones. Following John Rawls, we can speak

or an

"overlapping

Srate Building and Good Governance

210

International Legal and Moral Standards

2!1

consensus" concerning basic rights (Rawls 1993, 133lf). That fact relieves us

as a pathological case. In rl1at sense, interests that arc significant in terms

from the requirement of extensive moral argument that would clearly exceed

of human rights are at least prima facie imcrests: orlJCr things being equal,

the scope of this chapter. Nevertheless, a few remarks concerning the philosophical background of the very idea of hum<m rights arc required.

they deserve universal esteem (for details, sec Gert 1998). Some arc even
more than prima facie interests. They at!Cct indispensable preconditions of

Human rights arc valid claims each individual has simply by virtue of his
or her humanity The validity of rl1e claims results from at least one moral

the ability to orientate and to be a sclfawarc person. Satisf}ring such interests

is good wirl1out furtl1cr qualification. Otherwise, persons would be unable
to lead a personal life at all.

principle being valid itself~ What principle can play such a role? There is wide
acceptance now in moral philosophy as well as in international law that each

Second, a similar sort of argument-call it "quasi-transcendentalist"- has

individual human being is entitled to equal concern and respect (Dworkin

1978). My fundamental interests, regarding life, well-being, and personal autonomy, deserve rl1e same consideration than those of anybody clse. 24 No

been presented by Henry Sbuc (1996), but with regard to necessary enabling
conditions for realizing any hm11an right. According to Shue, some rights arc

political authority can be legitimate, no basic structure of a society can be

just, if it rests on a systematic violation of those interests. HumJn rights de-

other rights. Consequently, if a right is truly basic, aba11doning it would be

literally seH:dcfcating fiom the point of view or human rights as such. Shue

tine a threshold of minimal acceptability in the realm of politics.

considers rights to physical security, to subsistence, and to some liberties to

be basic in that sense.

BASIC INTERESTS

Is global agreement on the content of human rights possible? .Must not every
such attempt fail in the face of the diversity of worldvicws? According to
reasonable pluralism (Rawls 1993, sSfT), human rights interests would have
to be so general that people with very different ideas about what is a good

basic in the sense that enjoying them is indispensable fix rl1c enjoyment of all

Third, one can determine t.hc content of basic human rights by asking
what is essential for being able to participate as a fi-cc and equal person in
human rights discourses. This route of argument has something in common
with Shuc's. But instead of directly identifying some rights as bJsic, it refers
to the intcrsubjcctivist "construction'' of any system of rights (Forst 1999).
Given rl1at rights arc always in need of moral arguments, and arguments
arc intersubjcctivc in and by themselves, the ability to participate in human

life would be able to agree on them. In the philosophical literature, we can

rights discourses as a ti-cc and equal person becomes crucial. INc

find three methods of determining the content of at least basic human rights.
First, we can directly look and sec if we will find reasoned agreement on

stand that as a rciicx.ivc turn in the very idea oCeqmJ concern and respect: the

basic interests. These would have !"0 concern preconditions for, or fundamental clements o{~ a successful life. It is not directly a good life that is at
stake here, but merely a humane lite. with dignity. Now, it seems pbusiblc

to be reformulated as a discourse principle (Jlabcrmas 199R, 107). This is not

a purely formalist idea. VVc can gain some matuial content by realizing that
without certain endowments we would be unable to p~trticipatc effectively

or any human regarding goods such as prevention

of premature death, physical and mental integrity, worthwhile opportunities

in the common construction of a su!Iicicnt ly rich and determinate system of

rights.

f(x experience and agency, attachment to significant others such as parents

Now, instead of taking the three approaches as mutually exclusive, we

to

presuppose interests

and those beloved, or recognition by equals.

This is not meant to rule out the possibility that persons might make
reasoned decisions against some such interests. People arc plainly cJpablc of
making all manner of sacrifices- even their own lite- out of conviction. But
they

Glll

only do this rationally if they believe that it is supported by a value

of at least equal importance. If a person simply thrmvs his or her lite away
on a whim, we consider that grossly irrational and tend to regard the person

Gm

under-

basic principle out of which specific human rights normatively emcrge bas

prefer to see them as mutually supportive. A right that turns out to be basic
in the sense of protecting Jnd promoting interests necessary for leading one's
own lite as a self-aware person, f(x the very same reason will turn out to be
necessary J()l" consciously ::md cikctively exercising all other rights. What is
more, the approach of basic interests highlights the advantages that rights
arc made to protect and promote. It directs our attention to the relation between subjective rights a ncl intrinsic goods. ' 1 The approach of basic rights, in

lmcrnatiunal Leg.ll and /Vlor.11 Srandarcb

St.lte Huildmg end c;uod Governance

212

211

It gives further support to claims regarding b~sic interests by explaining their

13 o-33), and they c:nsurc that the cmts arc bearable for each individual person
by means of their fair allocation and the prohibition of fl-ee riding. This docs

role in any coherent" system of rights.

not simply lessen the individual's responsibility, however. In cases where suf.

contrast, can help us to determine the normative status some imerests have.

Regarding the third approach, b~sic interests and basic rights can serve as
substantial restrictions within human rights discourses. They J{xus the participant's attention on the points of greatest urgency. To a large degree rights

ficicntly strong institutions arc already lacking, that responsibility shifts toward contributions to create and to strengthen them.
Consequently, we can distinguish two levels of duties concerning hum<m

that arc indispensable for participating effectively in human rights discourses

rights. On a firor level, duties arc directly linked to the objects of human

will overlap with those needed for leading a personal life with dignity and

rights~ ror example, the duty to rdiainliom violation or the duty to prmidc

11m

with those needed for enjoying any other sorts of rights. Nevertheless,

a certain good. On a second level, there ;1rc duties regarding the prerequi-

it is highlj' likely that some rights turn out to be basic although not securing

sites of fulfilling duties on the first level. As alt-cc1dy indicated, among these

necessary conditions of discursive engagement; we may think of interests in

second-order duties arc those to build or to improve institutions necessary

physical integrity, in licedom from serious pain, or li-om forced marriages.

for a fi.Ill realization of hum all rights. Thus, the objection that certain rights

So much about the content of basic human rights. For the reasons just

arc mere "manifesto-rights" (Feinberg r980, 153), because no addressee

or the

indicated, we arc confident that at lc:~st some interests can be shown to be

corresponding duties docs exist, can partly be coumcred. lusohr as we arc

uC universal importance. Being able to satisfy them is a necessary condition

able to establish such an <1ddrcsscc hy means of coordination and collective

fix, or clcmcmJ.ry component of, a humane life with dignity, including the

action, and insof~1r as we arc able to coordinate our actions and to act col-

status of being the holder of valid claims and a free and equal coauthor of

lectively, we have a second-order-obligation to transf~m11 the manifesto-right

some specific systems of rights.

into an clTcctivc one.

If states arc stable and constitutionally well-ordered, these problems arc
solved in principle, at least within the respective territory. Sufficiently strong

CORRESPONDING DUTIES

states nowadays arc the primary duty bearers in the realm of human rights.
But neither do thcy have obligations only with regard to their own citiz,cns,

We want to finish the section on human rights theory by saying a fC:w words

nor arc they the only entities tlut can help individuals to get what they arc

about the duties that correspond to them. As indicated in the first part of the

entitled to. At least elementary norms such as avoiding torture and slavery,

chapter, it would be misleading to reduce respect liJr hum<m rights to the

prcvcming genocide, and providing the means ]()[' subsistence arc widely

inhibition of state action. Even rights to "negative liberties" arc fi1lly respect-

seen in literature as being backed by dut ics of humanity that do not pre-

ed only where provisions arc made regarding their sufficient protection and

suppose any special relationship, be it a framework of cooperation, of in-

promotion. As SinK has convincingly argued, three types of duties belong to

terdependence and power relations, or of being the citizen of a state. The

each right: dul"ies to avoid deprivation, duties to protect from deprivation,

corresponding duties arc ultimatcly those of humanity, and the intcrn<ltional

and duties to aid the deprived (Iy()o, 52). Consequently, the allocation of

community, as a wholcY'

rhcsc duties is a cmtral task in any attempt: to realize hunnn rights. And with
respect to the second and the third type, at least, a moral division of labor is
required (Shue 1988; Goodin 1988).
i\lthough ult imatcly only individuals c1n bear moral duties, they sometimes need

to

l?Jtlc ofLnw, RcsponsiFcncss, nnd Participatio7! ns ColllponmtJ

r!f'thc R{qhts-Brucd Approach

coordinate their actions, act collcu-ively, and build instin1tions

(Mellema IC)<J?; Schlothfcldt 2007). Structures of institutions play three im-

With the last remarks about duties we have stressed the importance of insti-

portant roks in any approach of human rights. They improve the effective-

ttuions; hence our b<1sic norm that any human is entitled to access to institu-

ness of human rights actions, they spccif)r each actor's dmics (O'Neill JC)96,

tions that protect thcif basic rights. But it is equally important to emphasize

~-

Firs!", it is olwious that any attempt to realize human rights presupposes

the rule of!Jw. Jn a minimalist sense, "rule of law" stands lor preventing the
I Iobbcsian condition of violent chaos by means of rules backed by effective
sanctions. But in order to cmurc that those establishing aud enf(xcing the
rules do not simply seck their own adv<mtagc by abusing thcir extraordinary
power, 110 authority shall be above the law. Moreover, legal rules should be
seen as codes of conduct for persons capable of taking responsibility for their

' 111111

.,

JfLnli

11
1

, .,

Building and Good l;ovcrnancc

that institutions must guarantee secure, inclusive, and nondiscriminatory access to basic goods in forms rmrl by mcrrm that arc themselves compatible with
human rights standards. That allows us to relate the other three components
of good governance, as outlined earlier, to that of hum;m rights. Although
human rights arc the core of our normative approach, they internally refer to
the mlc of law, to responsiveness, and to public participation.

~t.llc

!+

hlj'IB

1n~~

li

.Jf1
tJ,j

IJii

actions. For both reasons, they must meet certain standards such as publicity,
generality, the exclusion of ex post facto laws, due process, independence of
the judiciary, and equality before tJ1e law. 27 To be sure, not any system that replaces rhc rule of people by those of law automatically shows proper respect
for, and is ultimately based on, human rights. But no system of human rights
would he feasible in a situation of violent chaos or of sheer arbitrariness in
the usc of power. In short, conl]dencc based on legal rules is a necessary, yet
insuflicient, condition f(x realizing human rights.
On the same line of argument, we can introduce the component of responsiveness. Public cmthoritics must be willing to fult111 the pt1rposc they
-crc confCrred for, and the presumed beneficiaries must be able to control
11

lntem,llional Lt:gJ.! and fl'!oral St,liJdarcb

215

to inhibit grave mismanagement (1981). Second, the right to participate as

a free and equal person is itself a rcquircmcm of minimal justice, based 011

human rights. Given tJ1c moral principle of equal respect and concern, it is
always problema! ic that some persons should concentrate much more power
th<Ul tJ1c rest of a population. I laving a right to participate as a fl-ee and equal
person is an expression of the basic moral principle whcnevcr structures of
governance distribut-e powers t1ncqu.1! ~as almost any Structure of governance docs (Christiano 1996 ).

Good Governance Under Conditions of Fragile Statehood

Jlpplicrrtion

~{the

Non!tatiFc Stan drmf.,

Is our concept ion of good governance applicable to {iagile states as well? At

the degree of fulfillment. Consequently, responsiveness implies transparency

<\Swell as accountability (Keohane 2007, 8-9 ). The pcr((xmance of those who
arc held to account must be transparent to the acconmability holders. The
Llltcr must he able to gain infcmnation relevant for assessing structures <UJd
practices of governance at reasonable cost, and they must be <lhle to address
jmtificd critique to concrete actors. 'fhe governance actors, in turn, must
he willing to answer the critique :md take the appropriclle steps if necessary.
Final!;,, participation plays two roles in a rights-based approach of kgiti.1.), J~irst it is of instrumental value insofar as it raises the probability that

first sight, nothing seems Lo prevent us flom an aflirmativc answer. The basic
norm or ensuring access to institutions necessary for realizing basic human
rights only serves as a minimalist standard of justice that docs not conceptually presuppose strong, or even any sort oC st~tchood. 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 jurisdicriou based
on territory; responsiveness is cOJJCciv;Jh!c without a government; p.1rticip<ltion is concei\'ahlc without a demos (it might be a totality or stakeholders,
functionally dciinecl, instead). Although some sufficiently strong coustitutional governments do embody the stamLnds of goud governance paradigmatically, in and by themselves the st:,UJdards JIT form;:d and Jlcxible enough
to become transferred to more troubled conditions as well. In any sin1ation,
tl1e rights-based approach lends support to those structures of institutions
that arc best suited to fl_I!fillthc basic norm in l(Jrms and by means that arc
themselves compatible with human rights norms.
In this respect it is important(() note that the rule or law, responsiveness,
and participation arc principles demanding that we do the best we c1n to
make their fi_ill application possible. J\ principle is nut abolished by the bcr

those wwlding power respect and realize human rights. Consider Amartya
Sen's r;1mous claim th<lt democratic governance is the most cfJ(:ctive means
to prevent f:lmincs. According to .Sen, bmines arc almost always partly a con
sequence of political mismanagement and democratic accountability tends

that it is not <llways possible to act in direct accordance with it. This giYes
suflicicnt room for consequcntialist cJlculal"ions that arc especially important
where the conditions of governance arc E1r fiom optimal. ln order to weight
costs :llld benefits in a nonarbitrary way the ldlowing rule might be helpful:

Ill

' '

216

State Builclmg and Good Governance

lntcrnational Legal and ivloral St,md,lfds

217

the higher the costs of realizing basic human rights in terms of any of the

that divide public and private spheres must be suHicicntly clear to determine

other components of good governance, the greater the gain in terms of basic

tl1C roles different actors might play with regard to structures of govermuKe.
The collectivity must not be the people of a state, and the authority must

human rights must he to justify such a policy. To give one example, passing
over demands for participation might be required as long as there is strong

not be a government. But in situations in which the authority is de facto

evidence that a majority would 1:or respect hw11an rights standards toward

absent or fi.mdamentally contested, and the collectivity is deeply divided or

a minority. In contrast, if two policies arc feasible that meet human rights

its boundaries heavily disputed, a basic question

standards equally, but one is much less costly in terms of anotl1er compo-

swered: who is responsible to whom? Following Kalevi Holsti, we can call

nent of good governance, for example participation, this policy is preferable,

other things being equal. This is an aspect of what Robert Keohane (2oo 7, 7)

or politics cannot be an-

arc necessary conditions for realizing basic human rights, we might even

the first sort of problems "lack of vertical legitimacy" and the second "lack of
horizontal legitimacy" (1996, chap. 5). \Vherc the latter is lacking, communicative power in Hannah Arendt's sense-understood as the capacity to joint
action, built on agreement by discourse- is absent or at least very weak. And

be justilled in weighting the other way J.rou11d, too: the greater the loss in
terms of basic human rights, the greater the gain in terms of any of the other

without communicative power no public can hold the autl10rities responsible. liVhere vertical legitimacy is Jacking, the public misses the opposite of

components must be

justifY the loss. Although basic human rights place

a jointly accepted institutional structure with clearly defined roles fix achiev-

especially strong constraints on any attempt to optimize political outcomes,

ing supremacy in tl1e making, application, and enforcement of collectively

binding rules. The situation must not he one of true state breakdown. Even

calls the criterion of"comparativc benefit!' Insofar as tl1e otllCr components

to

these constraints cannot be absolute if otherwise the entire system of rights

would break down. This principle em be seen as underlying considerations
concerning "humanitarian interventions;' which almost always cause massive

hybrid and multilevel forms of governance, as well as legal pluralism, make it

violations of basic interests, at least as unintended yet foreseen side clfects.

bility onto other players in cases of critique (Randeria 2003).

easy for governJ.ncc actors to conceal bad performance and to shift responsi-

Yet, even under extreme conditions, some human rights violations, for ex-

Solving these meta problems of legitimacy is a precondition for f1t!f11ling

ample, intentionally punishing innocent people or institutionalizing torture,

our basic norm: to guarantee th<H each individual has access to imtitutions
that protect their basic fights. Tb repeat, that norm docs not call for a spe-

remain strictly forbidden.

cific structure of institutions corresponding to a specific collectivity, but it

requires some structure and some collcctivit:y. The conceptual openness bas to

Metaproblems ~f Ll{_qitimacy

be filled, and filling it means solving the meta problems of legitimacy. Most
basically this requires establishing and securing a societal order as such. In

Up to this point, we might have the impression that the problem of defining
standards of good governance for fragile states is only a matter of application: we must define the norms rather abstractly in order to be able to adapt
them in such a way that they make assessments of policies under non ideal
conditions intelligible. One fundamental difference between suflicicntly consolidated states and fragile states, however, should not be overlooked. In the

order to find solutions for d1e met<lproblcms otlcgitimatc governance, the

engagement of the international community with its organizations and institutions is indispensable. Additionally, nonstatc xtors, from the international
and local civil society as well as business enterprises, might be well suited to
do their share.
Normative political theory up to now has nor much to say concerning

latter cases, we arc often confronted with meta problems of legitimacy that

these mctaproblcms. This is partly so because any concrete answer will most-

arc already solved in stable states. Our components of good governance al-

ly depend upon pragmatic considerations. Por example, there is no general

ready presuppose two things: the existence of a collcctivit:y f(Jr which binding
decisions can be made; and the existence of a political authority that has the
ultimate responsibility for such decisions. In this second respect, the borders

a state. A principled reasoning seems to allow only a very 1\xmal answer:

answer of principle to the quest-ion of what arc the proper boumbrics of

whoever is suf1iciently wc11 suited ror becoming a

govcrn~mcc

actor on the

21X

lntcnr;nion.tl Legal and lvloral Stand.1rds

Stare Building ;md Good Governance

second level should try his or her best to establish or strengthen those struc-

CONTENTS AND BEARERS OF A

tures of institutions and those collectivities which most likely will satisfy all

SUBSIDIARY RESPONSIBILITY

219

f(lllr criteria of good governance. VVhcnever alternatives arc feasible, and accessible without prohibitive transaction costs, he or she should choose the

Under public intcrnationcll law, a subsidiary responsibility of the intcrm-

one that most likely will bring the best benefit instead of being satisfled with

tional community to ensure the minimum standards of good governance

a solmion that is clearly suboptimal (Keob;mc 2007). And any actor should
do so in forms and by means that do themselves express commitment to the
standards in terms of which they justify their engagement.
This bner requirement is a matter of integrity: acting in accordance with
unc's sdf~proclaimed procedures ami major goals. It is highly likely that an
actor will not foster compliance to norms by others if he or she manifestly

.md unnecessarily deviates from them. The decline of the United States' replltation as a consequence of its violations of human rights and international

IJw under the guise of a "war on terrorism" is an obvious example.

Hut the integrity criterion is not only of instrumental importance. It is
itself

matter of principle. To the degree that actors play a political role,

the standards of good governance should be applied to their performance

approximately. Solving the mctaproblcms of legitimate governance is itself
.1

task of governance, yet on a higher level. At that level, the demand for

has gained recognition in the past two decades. It flows from the fact tlut
sovereignty is not absolute, but qu;tlitiecl by obligations to protect human
rights, and hom the EKt that human rights, as obligations fl;[Jn onmcs, arc
considered the object of imernational concern. The international community uses international organizations, particularly the U.N., to prevent .md
counter human rights violations. In this context, it is significant that the
Security Council took binding actions under chapter 7 of the UN. Charter
in cases of massive human rights violations, even those that did not have
repercussions on neighboring states,'- 8 and in cases where a democratically
elected goYcrnmcnt was ousted by a military coup d'ctat 2

1n doing sn,

th~

Security Council acted upun the subsidiary responsibility of the inten1:1tional

community in cases of severe violations of governance standards as a part
of its responsibility for the maintenance of international peace and senrril)'
(article 2+.r, U.N. Charter). The-albeit implicit-recognition of a subsid-

legitimacy appears again. In the last instance, humanity as such has a stal<.e

iary collective "responsibility to protect" by the world Summit confirms this

in the quality of meta-level governance. Fragile statehood is a challenge for

interpretation. Jo

cosmopolir:misrn.

Governance failure in fiagilc states docs not happen overnight. Ustdly,

two phases can be distinguished: the first during which the violation of legal
standards of" good governance is imminent, ami the second in which these vi-

'Jl;c Subsidia7)' Responsibility ~f the International Community

U71dcr Public httcmationa! LaJP

olations take place. A subsidiary responsibility to ensure the minimum stan

dards of good goVCrl1<111Ce thus requires prevclllivc and restorative actions.
Theoretically, both types of Jct:ions can be taken under chapter 7 because

The f(JJTgoing analysis from the perspective of political morality has shown
that a uniquely state-based approach is unable to cope with the problem of
gmnmnce in and by fiagilc states. Public international bw, too, must take
this finding into account. As will be shown, there :tre ways to do so within
the nisting normative structures, ahhough the ~tate is, and remains, the central actor for the international legal system and hence the primary duty bearer
of intcrnatioual legal standards for good governance. For this purpose, we
will now look at the three aspects just developed liom the point uf view of
public international law: the contents and bearers of a subsidiary responsibility, the standards applicable to the fullillmcllt or the responsibility, and the
purpose of international engagement.

imminent :mel ;lCtU;ll violations can both be considered threats to t be peace

in the sense of article 39 of the U.N. Charter if they arc sufficiently grave. In
practice, the Security Council uses its power to address rccommendaticms so
as to JXC\'ent imminent violations, and reserves its power to issue binding
decisions to cases of actual viol;ttions.
There arc no spcciiic rules determining the conditions under which the
council must fulfill the subsidi:uy responsibility incumbcm on the international community. Such criteria were debated only with respect to a "n:spon
sibility to react:' namely a rc~;ponsibiliry to have recourse to (military) force
to protect a population, hut were not accepted Cor it by the \Vorld Summit
in 2005 (Stahn 2007). t\ f(Jrtiori, they do not exist f{Jr <l "rcsponsibilitv to

220

International Legal and Moral Sta.11Jards

State Building and Good Governance

221

prevent" or a "responsibility to rebuild." 3' Therefore, from a legal perspective,

NATO's intervention in Kosovo marked the turning point in d1c debate.

the subsidiary responsibility to protect only empowers the international com-

Before it, d1e proponents of such a right, mainly fi:om the United States,

munity to act, but docs not oblige it-there is no duty to protect. Thus, there

invoked a right of d1e state to save its own nationals abroad that d1ey con-

is a discrepancy between the moral duty to help and international law as long

sidered an exception to d1c prohibition of d1e usc of force preceding the

as the decision to have recourse to binding measures under chapter 7 remains

V.N. Charter (Amcrasinghc 2006, 16-22). Numerous European decision

within1he political discretion of the Security Council.

In the absence of collective actions authorized by the Security Com1eil

malccrs and international lawyers, who had previously rejected a unilateral

the qncstion arises whether inclividual states or even nonstate actors such

a~

threat of genocide in Kosovo. The justification for unilateral intervention in

humanitarian intervention, changed dlCir position, presuming an imminent

business enterprises or NGOs may act in fulfillment of the responsibility of

favor of another state's population was twofold: first, it was argued that the

the international community. Individual states may act because human rights

prohibition of the usc of f(Jrcc had to be harmonized with the other central

constitute obligations c1;grt omncs. Yet, the sovereignty of the targeted state

pillar of the U.N. system, the protection ofhm11an rigbts (Cassese 1999, 793).

and the concomitant prohibitions of intervention and of the usc of force

Second, proponents of intervention borrowed from considerations of moral-

largely exclude effective preventive, reactive, or restorative actions against or

ity to contend that there is a right

without the will of 1J1e JiJrmer.

As preventive measures, that is, before a violation occurs, individual states

genocide or "ethnic cleansing" (e.g., Doehring 2004, 44-8). Yet this approach

to

help a population defend itself against

met with considerable and consistent opposition fi01n numerous states, such

can merely warn another state against impending human rights violations.

as Russia, China, and many developing states, and subscgucntly was not

This action does not violate the prohibition of intervention because the warn-

ratified by the Security Council. It, thcref(xc, cannot be considered to have

ing state has a legally recognized interest in the respect of human rights as

acquired the status of customary international law (Cassese 1999 ).

they constitute obligations c1;grt ollmcs. More effective proactive measures,

In conclusion, states arc seriously constrained by Jaw in taking up the

hmvcvcr, such as support for capacity building, presuppose the consent of the

subsidiary rcsponsihiliry of the international community: in that regard, a

targeted state, if the Security Council did not authorize them. Arguably, under

discrepancy between international law and morality remains.

article 2.1 of the ICES CR., states arc obliged to accept international assistance if

The same conclusion holds true a fortiori for nonstatc actors, such as busi-

they Jack sut1icient means to realize economic, social, and cultural rights. It is,

ness enterprises or NGOs: if international law docs not permit states to act

however, still disputed whether states arc obliged to provide such assistanceY

on their own volition in the place of the international community if the Se-

As a protective measure, that is, when serious human rights violations arc

curity Council is paralyzed, it is only logical that it docs not empower non-

occurring, a nonmilitary intervention by individual states can merely take

state actors to do so. These actors arc subjects of international law only with

the form of a call for cessation.l 3 Although basic human rights arc norms

respect to a specific rule that binds or cnt"itlcs them, and such rule concerning

n;ga 01/lllCS, individual states may not take any other tmilatcraJ nonforcible

a right or duty to help a state discharge i1s obligations of good govcrmmce

countcrmeasurcs.H In the absence of a Security Council JUdlorization, mili-

is nowhere in sight.

tary interventions and an ensuing military occupation during the rebuilding

ph;lSC constitute prohibited usc of force. The reluctance oft he international
community to react, 1hrough the Scwrity Council, in cases of serious viola-

LEGAL STANDARDS APl'LlCABLE TO THE FULFILLMENT

tions of human rights by authorizing the

OF TilE SUBSIDIARY RESl'ONSIBlLITY

l!SC

of force against the pcrpc1ra-

tor state is at 1J1e basis of the debate about the legality of unilateral, that is,
unauthorized, humanitarian interventions: it can be seen as an attempt to

By its standards f(Jr good governance within states, public international law

harmonize the requirements of morality with international law by allowing

sets the f!-amcwork also t(Jr the way in which the international community

dividual states or particular state coalitions to act in fulfillment of the re111

fulfills its subsidiary responsibility. These standards bind all subjects of this

sponsibility of the international community.

legal order, including the U.N., if" they constitute customary international

fit

,_
~'
-,'~,,,
,I

.I

rtt.:,
::
t~1 r .:

122

State Building anJ Good l;ovcrnancc

law. l~or governance standards arising out of human rights treaties, in par-

by human rights under customary and treaty l<1w if they exercise governance

ticular those in connection with the fulfillment of social and economic rights,

functions imtcad of the st::lle. This result follows from the idea that human

binding dlect on the U.N. is brought about by two legal considerations:

rights stay with the people on a given territory, and flom the principle of

First, human rights treaty obligations belong to the people living in a given

agency of necessity (negotiorum gestio) as explained earlier. This conclusion

territory, and stay there even in case of change of government or clismcmbcrmcnt oft:J1e state.'s Consequently, if governance functions arc carried our not

under this rule, the conduct of a person is attributed to a state "if the per-

by the state but by t:l1e U.N., tl1c latter arc bound by the human rights treaties

son ... is in Jact exercising clements or the governmental authority in the

,
1

is reinforced by article 9 of the ILC, Draft Articles on State Responsibility:

in {(xcc for t:l1at territory. This consequence has been suggested for insurgent

absence or default of the official aut:l10ritics and in circumstances such as to

movements (Tomuschat 2003b ), but there is no reason not to extend the

call for the exercise of those clements of authority." If, by law and irrespective

concept to any ot:l1er actor, be it another state that is not a successor state, an

of the state's will, a private act is attributed to it, the state bas

international org<uJization, or nonstate actor.

Second, this result is reached through the general principle of agency of

,1

legal interest

in t:l1at its international legal obligations arc respected by the private actor.

necessity (m;_qotior11111JJCslio), which applies when one actor (the "agent") acts
in the piace of another (the "principal") who is unable to take a required ac-

pURPOSE OF INTERNATIONAL ENGAGEMENT

tion. In this sitmtion, the agent is under the duty to respect the obligations
binding upon the principal (Blihring and Htifken 2008). This concept GUJ be

As we have shown before, considerations of political mor<liity may require

found in aU legal systems of tl1c world, and serves as a basis for a claim of the

institution building so as to create the preconditions lor verrical legitimacy,

a2:cnt against the principal for reimbursement of his or her costs incurred in

and "colJcctivity building" so as to achieve hori:rDntal legitimacy. Public in-

c~,JTying out the action (Herdcgm 1989, 313-16). Such a claim presupposes
the -age~ 1 t's respect for the principal's interests when performing tl1c action,

ternational law takes up this idea: to c!kctivcly discharge its responsibility,

the international community cannot limit its restorative actions to merely

bccu:se otherwise the agent would force an unwanted result- upon the prin-

stopping violence in a fragile state. As the responsibility of the intemation-

cipal. From a normative perspective, the principal's imcrcsts include obscr-

al community is subsidiary to that of thc: state concemed, its fulfillment is

\'ancc of his or her legal obligations as these restrict the principal's. choice of

geared toward the creation of conditions in which the state can live up to

actions were he or she to act. Logically, the concept of agency of necessity can

its primary responsibility. Consequently, the act"ivitics of the imcrnational

be transposed to interstate relations and, consequendy, it can be considered a

community must aim at establishing the material, st-ructural, and socieul

general principle of law in the sense of article 38.1.c of the ICJ-Statutc, which

preconditions of consolidated statehood unless it is evident that nonstatc

constitutes a source of international Jaw. If mgotiommgcstio thus is a rule of

structures arc at least equally dkctivc for the protection of human rights,

international law, it binds all subjects of that legal order, states and interna-

equally respect-ful of the rule of law, equally responsive, and equally open to

tional organizations alike.

Public international law also regulates the actions of nonst:1tc actors: if

public participation.

nonstatc actors exercise governance functions in the absence of a functioning

state, for cx<unplc by ensuring physical security in a territory, by exercising

Conclusions

adjudicative {1lllctions, or providing health services, they arc bound by legal

standards of governance.' 6 This result is not achieved by a direct applicability

Under public international law and according to political morality, so\cr-

of human rights obligations to nonstatc actors. Attempts to bind transna-

cignry is rcstTictcd by requirements tlf good governance based on human

tional corpo;.ations and other business enterprises directly to human rights

rights. These requirements encompass h<1.sic human rights, the rule of Jaw,

have failed so far." Nevertheless, nons tate anors must he considered obliged

and responsiveness of and public participation in the cxcn:ise of govcmance

22 4-

':.
'

Imernational Lcg.1l aJld Ivloral St;mdards

Stotc Building and Good Governance

2 21

functions. Public international law does not contain special (lowered) standards of good governance for fragile states; it merely allows, in case of cn1ergcncy, temporary nonperformance of human rights. Yet it excludes tllis pos-

provide bad incentives, for example for corruption or flight of capital, which
most likely will weaken political authorities that are b:lsicaJJy legitimate.

sibility for peremptory or nondcrogablc human rights. In a similar vein, tlle

concept of "core obligations" under economic, social, and cultmal rights

situations of emergency, where collective solutions arc not feasible, is not

only morally required but also legally valid. Again, considerations of this
problem should focus more on preventive and restorative measures than on

permits taking into account the particular problems of fragile states. At the
same time, however, it obliges them to seek international help if they are unable to fulfill the Hobbesian minimw11. These findings arc corroborated by
considerations of political morality according to which states are only means
to fully realize hum;m rights, and arc as such replaceable in principle if ot11er
actors arc better suited to do that duty.
From both perspectives, that of public international law and that of political morality, the interrelationship of human rights and institutional stmc-

What remains open is the question of whctl1er unilateral state action in

militaty interventions alone. Moreover, internationJJ law must develop approaches to ensuring the respect of leg;ll standards for good governance by
nons tate actors. Solutions will only be effective if they take into account the
different motivations and aspirations of d1e various types of nonstate actors,
although in principle, morally justif-ied cosmopolitan duties regarding basic

rnres turns out to be crucial. VVe have argued that solving the metaproblcms

human rights are binding to each actor, of whatever type, who is capable to
talcc part in improving the situation. Nevertheless, both !i:)r political morality
and for public international Jaw, the (consolidated) state will retain its central

of horizontal ;md vertical legitimacy in a collectivity has logical priority. As

position, if only as a point of reference in discourses concerning legitimacy

a consequence, the subsidiary responsibility of the international community

and in the aspirations of peoples that up to now lack a political order they
can rightfully regard as their own.

must focus primarily on establishing institLt tions and societal cohesion in

frar.:ilc: states, be it as preventive measures ("responsibility to prevent") or
as ~~estorative measures ("responsibility to rebuild," irrespective of whetl1er
there was a preceding forcible intervention or not). It is, therefore, both
morally and legally insufficient to concentrate almost exclusively on a "res Jonsibility to react." Moreover, and contrary to a widely-held conviction,
s~lving the metaproblems of legitimacy docs often militate against a "fast

NOTES

1.

There is a host of academic literarure on d1c changing face of sovereignty Sec,

e.g., Alston 2007; Bothe, O'Connell, and Ronzitti 2005; !(jngsbury 1998; Krasner

in-f.1 st out" approach.

In fulfilling its responsibility, the international community is bound by

w01; 'lbmuschat 2003;1.

international law standards of good governance. These norms apply to all

actors fulf1lling governance li111ctions, including nonstate actors, irrespective
of whet her their exercise of these fcmctions is legal under international law.

States in Eastern Europe and in rhe Soviet Union" of 1"11e EC Council of Foreign

Thus, insurgent movements as well as warlords, NGOs, or business corporations arc constrained by international law. Consolidated statehood remains

For a detailed ;1llalysis of the "rights-based approach to development" sec, e.g., Hamm

the model, and may be replaced only by such structures that are at least

2.

CL, e.g., the "Declaration on the Guidelines on the Recognition of the New

Ministers, December r6, 1991.

3. The starting point was the 1990 Human Development Report of the UNDl'.
(2.001) and Kirkemann, Hamen, and Sano (2oo6).

+Article 2.3 ohhe U.N. General Assembly Declaration on the Right

to

Develop-

ment, December+, 1986, t\;RES/+1/128. Despite the ongoing debate :1hout the right

cquaiJy respectful of the legal and moral standards of good governance. At

the s:unc time, the international community must avoid aggravating existing lacks of vertical or horizontal legitimacy by measures th:lt deepen tl1e

external dimension (dcvclopmcm as a human right imposing obligations on st<ltcs

divide bct~wccn various societal groups or tlut weaken a government that

other tll<Ul one's home stale) and as an elllitlcmcllt between stares.

is seriously trying to fulfill the moral and international legal obligations of

good governance. Economic structures, as well, arc in need of rctorm if they

to development, this intcnnl dimension is not comestcd; the debate concerns the

5 The semina.! text is that of the vVorld ConfCrcncc

Oil

I Juman Right;;, Vienna

Dcclarat ion and Programme of Action, 1\;CON F.157/23, Ju!y 12, 1993, par. 5.

.~

International

Cf !C), Case of Military and l'anmiJitary Activities 111 and against Nicaragua

(>.

. Sec, e.g., Human Rights Committee, (;cncr,ll C:ornm~nt No. 29, i\rticlc 4-: Dcr-

c>g.HI<lllS during ,1 state of emergency (wOJ). Reprinted in "Compilation of (;encral

<~ommcJJt~, ,mel Cmcra.l Recommendations Adoj'ied bv I Jw1ta11 Rigllls 'IJ-carv Bod-

!Rij\3EN/J/RCY.7

1cs," I

"'-

Among .St.Jtcs in :\ccordancc ll"ith the Charter oft-he LTnired N,1tion~' U.l\'. Gmu.li

21.

Allen Buchamn introduces and dctcnds this norm as

,1

"natura.! dmy of justice"

(zoo+. X.H\1,) .
This docs ll<>t mcu1 that ,1J1\'0J1c 1s ent1tled t<l an equal amount <1!" at!)' good

J,J-.

of some tnor;d rcJc,ancc. Bttl each jusuJiurion giwn f"(>r ;111 unequal di.striburiun of

(wo.f), !8+, par. II.

<ill)'

s. Sec"( 'nmpilatic>n nf(;cncral CumnKnts," par. 11-11.

This docs not, however, 1mply that states c.1nnot use the limitations clauses

<!.

and Mor,J] Stand-trch

i\sscmblr Res. z<\2.5 (25), October 2-e, 19:o ("Friendly Relations Dedar;1tion").

(Nicaragu.l \'.US), JIJcrits, lCI Rep. 1y86, 218 w .

7

Lc~al

c"<l!llJilled in the rights gtwrallleed. CC, e.g., the jlCi"llliSsibfc limitations of the free

rnorallv relevant good Jllti.st he nm11utihlc with the equal mor.d ll"<>rth of ail

humans. Clc,tr c.1scs of violation< ,f this requiiC!llcnt ;11T r;1cist or sexist ju.stilicatiom
for unequal access to lirndametlt"allibntics, to public panicip.uion, w edur:1rion .md

basic health care, or to the opportunity strucwres of labor markets. We call antmcqu;ll

exercise of religion pmsuant to aniclc 18.2, ICCPR.

10 . This prm"i.sion applies not only to fr<~gilc sf,Jtcs but to .1!! stares, bec.mse of the
open-ended n<~tmc of most of the rights contained in the ICESCR (e.g., the "right
to he.tlrh" under aniclc 12 is, in realirv, a right "to rhc highest attain,lhlc standards of

treatment "discriminatorv" if it o.press<'S disrcspecr fC>r rhc equal moral \\"llrth of ,my
person irrespective of gender, r.Ke, religiun, scxtul t>ricnt.llion, etc.
25. Martha Nussbaum (2006, :>.R+-81) emphasizes this rdation with rcg.1rd to her
capabilities approach that she t,\kcs ro be a specie's of the human rights appro.Hh.

health.'").
It. !CESCK Committee. Gcncr.ll Commcnt Nu. l (The n.Jtun:

or states parties'

l1bligat iom, <Jrticlc z, par. r, of rhe Covcnmt) (!<JYO ), par. 9. Reprinted in "Compii.J-

J\t tJJC same time, the capabilities appr<l<lch can be seen .1s one --but nor the onlypossible intcrpret<llion

or the idc,l of lnsic interc.qs.

2h. Even .lUI"ilOrS who deny th,tt there is a global scope of di.strihutive JUsrice de'

tion of Ccncral Comments," 15.

accept such a glob.1l scope with 1cg.mlto basic human righrs (sec Nagel

12. "Compilation of l ;cncraJ Commcms," p;1r. to.

20<1)).

27. i\Jicn 1\uchan:m thcrd(lre distit1guishcs between .1 \\"cak -"Hohbc.sian" and

]ilHL, par. I1.
..
.
11 Sec, e.g., UN. lvltllctmtum Dccbration, A;RES/.Is/z, September H, 2000, par. 9
, d . ., , d World Summit Dcclar.ltion, A;RES/60/1, Scptcml'cr 16, 2001, par. 119
111 2 1 111
,tnd 1H; Comm'n] Ium. Rts. Res. 2o05/J2 ("Demonacy and the Ruk c>fLaw"), i\priJ
Ji.

J<J,

ol>l

11

(adopted by 4.o l'l>tcs 10 none. with 7 <lbstcntions).

(;enenl Comment No. 29, Article+ "Compilation of c;mcr,11 Comments,"

:>.DO+, +I<J

(,o).

28. SC Res. '"'33 (19y2) (Somalia), awl SC Res. VIR (t<J9+) (Rw;Juda).
SC Rr.J- (1993) (Haiti, still ll"ith rckrcncc to rrambmrml:1ry clkcts [rdilt"-ec,j);

29.

SC !Ji2 (t<J<J7) (Sierra Leone).

0u. Sec A/RES/(>o/r, September 16, 2001, par. q8.

31. 'l"11is te1lllirwhlg)'f(,Jiows the distith:tic'n itltn>duccd hv tile lntcrn,ltt<>!Lll <:oln-

1'11". :..
11 ,_ C:c 1mm'n I /um. Rts Res. zoos/(JS,Aprill<>,
111

a strong- "Fullcri.111"-interprcL1tion o(thc rule of" law (Huch,llJ,llJ

2005

(""rhc n>k nfgc,od govcrruncc

the prnmorion and protection of hum.111 1ights"), par. 1 (adopted without a vote).

ll.N. r\lillcnnium Dccl.1ration, J\jRES/12/2, September K,

2ooc>,

those St.ucs which

p;1r. 25 and

:\jRES/oP/r, September r6, 2001, p<~r. H.l

. 1\csolution wos/2<J ("Strengthening of popubr panicipat ion, ec JUit y, soci;1J jus-

2 o.

2005

(.1d(lJ'tcd J,y 2K ,utcs to \<1, with 11 abst-ctJtinns), J1<1r. 8-JO .

.'!'"Sec identid arude

1,

.Jill!
2008,

State Secwit\' (JCJSS), The fZcsponsibility to l'rntcc:r,

W\I'W.ici.s.s.ca/pdi/Coml1li.ssilln-Rcport.pclr

arc

in

.1

"I i [r i:;

p~1rticubrly

incumbent upnn

positioJJ to ;I.s.sisr others in this regard" ("CilmpiLu io11 of

General Comnte11tS:' p.1r. I.J). It thm cv;ldc.s langu.1gc rh;Jt suggests an oblig;ltion. !'<!I
a positio11 in J.wor of" such tr.llt.sn;Jtion.11 hu111.111 rights <Jbligauon.s,

p.1r. I I> ("more inclusive political process").

21
tice ,llld non-discrimination as csse1Jtial Ji>umbtions of dclllonacy"), April 1<!,

1\cccs.sed )tine 26,

32. According to the ICESCJZ Committee,

. World Summit Outcome, 1\;RES/I>O/J, September 16, 2005, par. :>.,t.h.

17
18 (;i\ Res. 41/r2X, Decem her 4, 19Xo, article 2.2.
l<J.

missiun on lntcri'C!ltion
2001.

!CCPR and JCESCR, as well as pnnciplc I of tile Dcc-

L11,Jii(ltl 011 Prinnpks of lntern.llion;1/ L:111', Fr icndly ReLlltons ,1nd ( ~o-upcr.1tion

Gibney

seT

Skogly :u1d

(2002")

n. /\rtick
lln:cm her u_,

~K.
2

ILC Draft Articles on SJ.ttc 1\c.spun,sihilitv, /\nncx to i\!IZI'..'.;f\(,/0;,

>O 1.

ll. Sec lntcrn,\1 io11.il L1w (:om mission (ILC), I lr.11i Articles on St.Itc lZcspo!l.sibilily ll'ith ComtllCill;Jrtcs, J\/y>/1<> <llld C:ott. 1 (2''"1), cotntncnt.ll"V 011 ;Jtlic!c H,
p.ll".IJ.

IN,

'&El
lnrcmational Legal ,md J\lural S1andards

22 8 St.llc Building and Good l;ovcrnance

35

. Human Rights Committee, General Comment No. 26 (Continuity of Hunt;ut

Rights Obligations) (1997), rcprimcd in "Compilation of General Comments ~Uld

c;cneral Recommendations Adopted by Human Rights Treaty Bodies," HRT/GEN/I/

Rev.?, wo+, 171, par.+

6. This conclusion docs not conOict with our prior i"inding that there is no legal
3

22y

Eidc, Ashjorn. 1yR9. "Realization of Social and Economic Rights ;md the Jvlinimum
Threshold Approach." 1-htmml R{!Jht.r Lmv ]ozmu1J 10:35-51.
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Bmmd.r ofLiberty, edited by Joel Feinberg, I+3-sR. Princeton: Princeton University
Press.
-

right or duty of non state actors tu help a state discharge its good governance obliga-

Forst, Rainer. IY99. "The Basic Right to )usti!ication: 't<Jwards a Constnrcti\ist Conception oCl-lum<tn Rights." CollJtcllntiollJ 6:35-60.

tions, because it applies to the factual sit nation where a nonstate actor voluntarily

Fraser, Nancy. 2005. "Rc-fiammg Justice in a Clobalizing World.'' Nrn' Le(t RninP

exercises gowrnaJJcc functions. lt is all the more important if it turns out that there is

16:69-RH.
Gert, Bernard. 1998. 1Homlity: lt.r Nrzturc and ]u.rtijimtion. New York: Oxford Uni-

,
1

moral duty of such an actor to undertake governance f1u1Ct ions.

. Sec, in particular, the "Norms on the Responsibility of 11-ansnationa.l Corpo37

rations and Other Business Enterprises with Regard to 1-hunan Rights" drafted by

the U.N. Sub-Commission for the Protection and Promotion of Human Rights,
U.N. Doc. E;CN.+/Sulu/2003/12/Rev.2, and their rejection by the Commission 011

lluman Rights through Dec. 200f/ll6 of April 20, 200+, par. c (recommendation
ro ECOSOC to "affirm that [the document containing the Norms] ... has no legal

standing."

versity Press.
Goodin, Robert. 1988. "V\'ltat Is So Special About Our Fellow Countrymen?" Fthic.r
9R:663-86.

Habermas, )iiJgcn. 1998. Bctwun Facts al1(l Norms: Contri!mtium to a ViscumJc 'IlHm1'
of Law and Dc111ocmry. Cambridge, Mass.: MIT Press.
.
I-Iamm, Brigitte I. 2001. "A Human Rights Approach to Development." Jlmmm

RLrr!Jts Qj!m1crly 2poos-31.

I-lcrdcgcn, Mauhias. 1989. ":Gur Gcsclrciftsflihnmg olme Anftrag (mgotiorum gestio)
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