MOST Ethno-Net publication: Africa at Crossroads

MOST ETHNO-NET AFRICA PUBLICATIONS

Africa at Crossroads: Complex Political Emergencies in the 21st Century,

UNESCO / ENA, 2001

The Sovereign African State Is Dead . . . Long Live The State! 
Reflections On The ‘Collapsed State’ Debate

Ndiva Kofele Kale (1)


INTRODUCTION
The image of nation-states in various stages of disintegration has become evocative of Africa’s identity as the sprawling Sahara Desert or the awesome River Nile.  Indeed persistent and perennial problems of governance, instability and security problems in some African countries (2), have given a semblance of legitimacy to this image. This unflattering view of the continent has now taken on the trappings of a ‘religious’ movement among some Euro-American social scientists and their African converts. (3) Those among them who subscribe to this cult of “State Watching” have as their principal preoccupation one of talking and writing about the post-colonial African State, trying to predict which among them will follow the same tragic path as Congo and Sierra Leone, and wondering whether all of Africa is not on the endangered list of states with finite life spans (4) and therefore on the verge of extinction. (5)

Since no religion is complete without its own dogma, its own liturgy, so  too the cult of state watching has produced a special lexicon which it employs almost exclusively to describe the post-colonial African state. These descriptions are interspersed with references to: “artificial” states; “failed” states; “collapsed” states; “quasi” states; “ramshackle” states; “marginal” states. (6)  In short, states that are allowed to exist only out of a misplaced sense of international courtesy because they never were nor ever would have been eligible for sovereign statehood status had classical rules of international law applied  to them. (7)

Talking of this new “state watching” movement reminds one of the frustrated African policy maker who in exasperation cried out this prayer: “From the hands of Euro-American Africanists, deliver us O Lord!” In a similar vein, one scholar in discussing tribalism which like the nation-state has been presented as one of the curses of Africa, (8) raised a problematic that is central to our discussion of state collapse in Africa. Archie Mafeje observed that few western authors have been able to write about Africa without making some reference to “tribalism.” So, he inquired whether “tribe and tribalism” constitute the distinguishing features of our continent?  Or, whether they are “merely the reflection of the system of perceptions of those who write on Africa, and of their African ‘converts’? Objective reality is very difficult to disentangle from subjective perception, almost in the same way as concepts in the social sciences are hard to purify of all ideological connotations. Might not African history,” he asked “written, not by Europeans but by Africans themselves, have employed different concepts and told a different story? If so, what would have been the theoretical explanation?” (9)

II. DECONSTRUCTING THE LANGUAGE OF STATE COLLAPSE
Any serious discussion of the problem of state decay involves a process of restructuring African reality. And as is frequently the case, re-sculpting this reality produces its own set of blinkers or ideological predispositions. And these predispositions surely affect the way we see and describe the post-colonial African state. (10)  It is therefore crucial that as we peer into this reconstructed reality through the lenses of others, we do not forget the question Mafeje asked of “tribalism”:   if Africans were  to write about the plight of the post-colonial African state, whether they would employ different concepts and ultimately arrive at a different conclusion from the one currently in vogue. (11)

With this in mind, our first task is fairly straightforward: it is to de-construct the language of the state watchers’ cult and to purify it of any ideological odor. This we are compelled to do for two reasons. 

First, because it is imperative that African scholars begin to assert autonomy and proprietorship over their research agenda and to vigorously challenge monopolistic attempts by outsiders to define their political reality taking as their cue Frantz Fanon’s challenge to the African intelligentsia five decades ago: “each generation must out of relative obscurity discover its mission, fulfill or betray it.” (12) African scholars risk betraying their mission when they accept without question labels thrust on them by outsiders. The fact that external experts, no matter how well-intentioned, tell us that post-colonial states are in a free fall because they never should have been granted sovereign status in the first place, does not necessarily make that true. And repeating this mantra over and over again will not make it any more true. While the craving for external validation and acceptance can at times  be overwhelming that is not reason enough for African scholars to cave into Western imposed ideas and concepts. To be called the most loyal and obedient pupils of our Euro-American masters can hardly be a badge of honor! 

Secondly, deconstruction of language is necessary because the implications flowing from the conclusion that almost all African states are on the endangered list verging on imploding at any moment are grave for the future of Africa and Africans. Let me dwell a bit on this second point. 

A. Four Implications

1. The Congenital Defect Argument
To the extent that it is true that the post-colonial state has proved unsustainable, then it carries the dangerous implication of an Africa whose genetic make-up, if you please, has reduced Africans to a state where they are simply incapable of constructing stable, enduring and sustainable state systems. The vocabulary used to describe this perceived African reality is laden with words designed to project the worst features of the African condition: disorganization, dislocation, decay, decomposition, breakdowns, anarchy, regression. All these words suggest a state of no return.

2. The Strongman as Savior Fallacy
An Africa littered with collapsing states provides just the kind of excuse that some people need to go out in search of an African strongman leader whose mission is to extricate the state from this mess and put back the house in order. Such has been the experience of Congo where a Laurent Desire Kabala dramatically burst into the scene in the summer of 1997 (mention should also be made of Address Deb. of Chad, Liberia’s Charles Taylor). In instances where no one steps forward as a Simon Bolivar or a George Washington, the strongman is simply invented and imposed: Aidid of Somalia; Kabila, Jr. of Congo.

3. The "sans moi, le déluge" Threat
Closely related to the strongman as savior argument is the tendency by some African leaders to cynically use the specter of an imminent collapse of the state system as an excuse to extract favors from the West and buy time for their discredited regimes. These beleaguered leaders whose policies directly contribute to the state of disorder in their countries then turns around to exploit it in order to bolster their claims of indispensability.  Their Western friends in turn, largely for reasons of expediency, have been only too willing to accommodate them. Mobutu was the classic master of the sans moi, le déluge threat, the African version of Louis 14th “après moi, le déluge.” Mobutu adroitly used the  threat of an apocalypse as well as his “ties to foreign governments to exploit their concerns about the possible state collapse in Zaire and instability in Central Africa.” (13) Although there was clear evidence of total collapse of bureaucratic capacity and patrimonial control in Mobutu’s Zaire, this did not stop his Western allies whose strategic interests were riding on a Mobutu at the helm, to allow him to manipulate them into believing that it was the state system in all of Central Africa that was on the verge of collapse. 

Another example that also comes to mind is the alliance Samuel Doe struck with the United States.  In his excellent study on “warlordization” of African states, William Reno reveals how Doe on the verge of losing his writ over the Liberian state quickly discovered that the interests of foreign officials in strong states could be translated into cash. In no time Doe got the United States government to “pay him $400 million for a vague commitment to multiparty elections, which helped him weather Liberia’s declining value as a strategic asset as the Cold War wound down and U.S. interest in Liberia diminished.” (14) In the Liberian and Zaire cases the West opted for pragmatism over ideological concerns and allowed itself to be hoodwinked into a bogus claim that these states would collapse without the steady hands of the incumbent leaders who clearly had no interest in promoting democratic reforms.

4. The Frightening Appeal of External Re-colonization Argument
Recent calls for re-colonizing Africa have been fueled by the belief that the post-colonial state can no longer survive, partly because Africans just do not have the ability to sustain the state system. In a 1995 brief notice that appeared in CODESRIA Bulletin with the provocative title: “Decaying Parts of Africa Need Benign Colonization,” Ali Mazrui (15) publicly staked his name and reputation to an idea that many students of African politics, including some in this room, only broach sotto voce. Much of “contemporary Africa” Mazrui observed in that piece “is in the throes of decay and decomposition. Even the degree of dependent modernization achieved under colonial rule is being reversed.”  “The successive collapse of the state in one African country after another...  suggest a once unthinkable solution: recolonization.”  Expanding on this solution: “While Africans have been quite successful in uniting to achieve national freedom, we have utterly failed to unite for economic development and political stability. War, famine and ruin are the post colonial legacy for too many Africans. As a result, external recolonization under the banner of humanitarianism is entirely conceivable. Countries like Somalia or Liberia, where central control has entirely disintegrated, invite inevitable intervention to stem the spreading ‘cancer of chaos’.”  Mazrui’s new Africa-centered world order envisions a United Nations-type trusteeship system like that the UN had over the Congo in the early 1960s, but with administering powers for the trusteeship coming from Africa or Asia not just the West: Ethiopia over Somalia; Egypt over Sudan; South Africa over Angola; a resurgent Zaire over Rwanda and Burundi and so on.

III. POLITICAL INSTABILITY AND STATE COLLAPSE IN HISTORICAL CONTEXT
First things first: is state collapse the product of political instability?  Put differently, is Africa prone to political instability such that this threatens the viability and effectiveness of the state system.  I intend to contest the view that state collapse reflects Africa’s endemic instability. Instead, I will argue that what Africa suffers from is too much stability and that 40 years have shown that too much stability is not necessarily a good thing.  My assertion that Africa suffers from too much stability must be placed in context and subject to historical perspective.  That is, viewing Africa against the backdrop of: (a) its own past history; and (b) in comparison to the past and contemporary history of the older nation-states of Europe and Latin America.

A. The Historical Record
Africa’s post-colonial political development when viewed from the perspective of the continent’s pre-colonial past as written by the Burkinabe, Yambo Ouloguem’s 1971 bestseller Bound to Violence (le devoir de la violence)] or viewed through the prism of  the Senegalese cinematographer, Sembene Ousmane, and not the sanitized and romantic recollections of the Basil Davidsons, the Leopold Sedar Senghors or the Cheikh Anta Diops, what comes out clearly is a past of protracted conflicts and epic struggles, of turbulence and mayhem, as despots fought off rival after rival, ruthlessly put down insurgencies, all in a bid to prolong their hegemony over the African masses!

1. A propos Europe: There are simply no parallels in African history which match the epidemics of civil wars, social disorder and violence that plagued Europe from the 10th century down to the eve of the first world war.  The map of Europe in 1648 when the Treaty of Westphalia was signed when compared to that of 1815 at the Congress of Vienna that brought to a close the Napoleonic wars or to the map of 1918 framed by the Peace of Versailles, only precious few territorial boundaries have remained unchanged . The recent break up of the Soviet empire alone gave birth to over a dozen new sovereign states!

2. Latin America where the military coup d’Etat as a science was perfected is a picture perfect case of a region prone to instability. A few examples will suffice: Venezuela underwent 50 revolutions during the first century of its independence; Colombia experienced 27 civil wars by 1903; Bolivians suffered through 60 revolutions and somehow survived, assassinated six of their presidents in the first 40 years of their independence from Spain. And by the first 100 years as a sovereign state Bolivia changed presidents 74 times and had gone through 179 revolutions! There simply are no African parallels to this long history of political turbulence, yet no one is writing about state collapse in Latin America.

The conclusion is inescapable that for a majority of states (both old and new) in the early phase of their political development endured protracted periods of political instability. Thus, to the extent that post-colonial Africa is viewed as a region prone to instability, it is not the historical exception.

Contemporaneously, the record of political instability in the non-African world is hardly one that inspires envy. For instance, The average life-span of a government under the 4th French Republic was seven months.  Japan has had 11 Prime Ministers in the last 13 years. Italians have grown accustomed to changing Prime Ministers every year.  On average each African state has changed presidents twice over the last four decades.  Nigeria appears to be the lone exception where the rule of infrequent leadership turnover has not applied (between Abubakar Tafawa Balewa and Olusegun Obasanjo II, Nigerians have changed their head of state thirteen times!)

B. An Ideological Bias
Implicit in the pervading view of a politically unstable Africa is a normative distaste for instability.  This aversion  to instability is fueled by an unspoken assumption that political stability is INTRINSICALLY GOOD while political instability IS INEXCUSABLY BAD. Houphouet-Boigny, the founding President of the Ivory Coast, is on record as having drawn from Goethe when he said: “I prefer injustice to disorder; one can die of disorder, one does not die of injustice; and injustice can be repaired.” But what is this stability that the late Houphouet-Boigny preferred and under whom? At what price can it be obtained? For whose benefit? The stability of King Leopold’s Congo? Of an apartheid South African state? Of a hermetic North Korea? The stability of a Nazi concentration camp? Surely, this type of stability cannot be preferred to the temporary periods of disorder and chaos that result when this system is challenged or even overthrown. 

1. Why Stability is not Always a Good Thing
There is nothing normatively preferable about stability or distasteful about instability.  I will devote the balance of my paper to exploring some of the reasons why stability is not always such a good thing. If political instability is understood  in terms of change at the political center where power reposes and where all the critical decisions are made then Africa comes out as the most stable region in the world. The contemporary history of Africa is one where there is little or no movement at the leadership level. Indeed, the record is one of almost rigor mortis at the helm. (16)  In her 40 years of independence Cameroon has had only two presidents (during this period ministers were frequently shuffled around. For instance,  President Biya has in his 19 years in office changed his cabinet  25 times with the most recent reshuffle less than a month ago.)  Such changes, notwithstanding, what is true for the overwhelming majority of African states is that once a President always a President until force majeure grounds make removal unavoidable.  Only south Africa’s Nelson Mandela’s one term of five years in office breaks this pattern of longevity at the helm.

Ordinarily longevity  in office would be commendable and reassuring because it guarantees stability and continuity, certainty and experience under a political management team whose skills have been tested and proven.  This, however, is not the case in Africa and for several reasons:

1. First, the problem of “African Absolutism”, i.e., the concentration and centralization of power in one man, the President. Power is not conferred on the institution of the Presidency of the Republic but custom-made to fit whoever becomes the lucky occupant of that office; 
2. Secondly, flowing  from the first, the appropriation (misappropriation would be a better word) of the resources of the state by a small clique headed by the President. We are taking of the unbelievable situation where in the majority of these countries the entire state budget is reserved for the discretionary spending of the head of state. Some have referred to this situation as the patrimonialization of the state. (17) In Zaire  under Mobutu, for example, anywhere between 65% and 95% of the state budget was reserved for his discretionary spending. (18)
3. Third, as a consequence of (1) and (2), stability and continuity in office have come to mean no change at all, no growth, no development. Because a President who is immunized against the principle of checks-and-balances can easily divert scarce national resources away from development into non-productive areas and the longer he remains in office the more he is able to abuse his office for personal gain. These resources are then:

i)  Wasted on vanity projects– such as Mobutu’s transformation of his once somnolent village Gbadolite into a modern city complete with an international airport, satellite communications, several presidential palaces protected by a 15,000 strong praetorian guard with the best stocked weapons arsenal in Zaire at that time. Gbadolite which employed some 7,000 workers was maintained as a city-state at an estimated $15 million per month. Or, the case of the Basilica of Our Lady of Peace built by the late Houphuet-Boigny in his village of Yamoussoukro at a cost equal to half the Ivoirian national debt; the Basilica is larger than the Vatican and is said to be able to hold inside it the entire Catholic population of the Ivory Coast!
ii) Employed to consolidate their hold on power and to extend their hegemonic control through the use of private militias to fight off political rivals and potential aspirants to the Presidency– Denis Sassou-Nguesso’s Cobras vs. Bernard Kolelas’ Ninjas in the Republic of Congo; Charles Taylor’s National Patriotic Front of Liberia vs. Samuel Doe’s Armed Forces of Liberia; or Taylor’s NPFL vs. Prince Yormi Johnson’s Independent National Patriotic Front of Liberia;  Foday Sankoh’s Revolutionary United Front vs. Valentine Strasser’s dissident wing of the Sierra Leonian army vs. Tejan Kabbah’s soldiers of fortune recruited by Kamajors/Executive Outcomes)
iii) Used to finance patronage obligations as they spread the beneficence of office to family, cronies, clan, tribe, and the rest of society in that order. 

CONCLUSION
If, and this is an important if, predictions of a systematic collapse of the territorial African State prove to be true; and if Africa’s intelligentsia fails to come up with antidotes to arrest the decay and if policymakers (national and international) lack the political will to administer the bitter pill required for reviving nonperforming states, then as we contemplate or imagine the future of our planet, the image that immediately comes to mind is a frightening one. Looming in the horizon is a world cleaved into two parts: one ‘world’ comprised of viable sovereign states exercising the full panoply of rights and privileges due them; the other made up states only in name appearing only on the political map of our continent; countries that resemble “aggregations of sub-national groups pursuing strategies to cope and survive in the absence of effective state authority,” with a majority of its populations increasingly becoming “detached and disengaged from interaction with agents or institutions of state authority.” (19) As Robert Kaplan predicts  in his chilling essay on “The Coming Anarchy,” the ‘world’ of functioning states will most likely be inhabited by Hegel’s “Last Man”-- healthy, well-fed and pampered by technology, living, as it were, in a state of triumphant opulence. The other ‘world’-- the larger one, our ‘world’-- will be populated by Fanon’s “wretched of the earth” or, if you will, Hobbes’ “First Man,” condemned to a life that is “poor, nasty, brutish, and short!”

FOOTNOTES

(1) Ph.D. (Pol.Sci.), Juris Dr. (Northwestern), of the Illinois and Federal Bars (USA), Attorney & Counselor-at-Law. Professor of Law & Principal Partner, Motande Chambers; Solicitors & Advocates of the Supreme Court of Cameroon, Buea. Email: mo_kale@yahoo.com. This paper was first presented as the keynote address at Ethno-Net Africa (ENA) Conference: “Africa at Cross-roads– Complex Political Emergencies in the 21st Century,” held at the Sawa-Novotel, Douala, Cameroon, May 21-23, 2001. Sincere thanks to Professor Paul Nchoji Nkwi and Dr. Nantang Jua whose gracious invitation made my participation possible and to Chantal Yimga Kambiwa who read several drafts of this paper and offered valuable suggestions for improvement. All errors of fact and interpretation remain the responsibility of the author.

(2) Notably Congo Democratic Republic, Liberia, Rwanda, Sierra Leone, Somalia, to name but the ones that consistently make headline news around the world.

(3)  See e.g., the collection of essays and case studies in Collapsed State: The Disintegration And Restoration Of Legitimate Authority (I. William Zartman Ed. 1999); See Also The Collapse Of Ancient States And Civilizations (Norman Yoffee & George L. Cowgill, Eds. (1988); J.A. Tainter, The Collapse Of Complex Societies (1988). For some the collapse of the territorial states of Africa is so total that the continent faces the real risk of re-colonization. See e.g., Ali Mazrui, Self-Colonisation and the Search for Pan-Africanism: A Rejoinder, 2 Codesria Bulletin (1995); ______________, Towards a Benign Recolonisation of the Disintegrating States of Africa, 2 Codesria Bulletin (1995); Archie Mafeje, Recolonisation or Self-Colonisation and Malignant Minds in the Service of Imperialism, 2 Codesria Bulletin (1995).

(4) The death knell of the nation-state was first sounded by Herz who attributed its demise to the fact that the nation-state was becoming less and less capable of fulfilling its primary function of providing security for its inhabitants. As a consequence, people will be forced increasingly to turn to larger social organizations to ensure their protection. See J. HERZ, The Rise and Demise of the Territorial State, 9 World Politics 473 (1957).

(5) Paradoxically while the passing away of the African state is being lamented by professional mourners in the Africanist establishment, elsewhere, however, a different set of expert ‘state watchers’ have been reporting sightings of the territorial State all over the political map. To this group the sovereign state for all intents and purposes appears to be alive and well and its victory  over all other competitors beyond question.  Hendrik Spruyt devotes an entire ouvrage: The Sovereign State And Its Competitors (1994), to proving the thesis that over the course of several centuries sovereign states have become “the sole constitutive elements of the international system to the exclusion of others,” and the key determinant of contemporary national and international politics, according to Benedict Anderson. See Benedict Anderson, Impinged Communities (1983).  In fact the remarkable feature of the modern age, as Chabal correctly observes, is the durability, rather than the expected demise, of the nation-state. See Patrick Chabal, Power In Africa: An Essay In Political Interpretation 118 (1994). How can  the nation-state be dead and yet be alive?  Perhaps the way to reconcile the two is to treat the term ‘collapse’ as a metaphor for the disappearance of state as a physical being while its ‘soul’ or ‘spirit’, so to speak, lives on?  In any event, what is certain is that contrasting and conflicting briefs on the health of the African state reflect the different analytic prisms through which the subject is examined. It is the goal of this essay to explore various aspects of the African State debate in order to ascertain the extent to which reports of its demise are true or exaggerated. 

(6) When does a state cease to exist? What becomes of the stability of legal obligations when political identities change, is a question that even Aristotle found necessary to raise and confront as far back in the 4th century B.C. In his Politics [Bk. III, Ch. 3 (Stephen Everson ed. 1988], Aristotle posed the problem thus: what happens, he asked, when “the state is no longer the same,” i.e., when it collapses? The demise of the state is a subject that has preoccupied international lawyers since the beginning of the modern state system and for good reason. The range of issues this raises is addressed in international law under doctrines of succession [See e.g., Vienna Convention On Succession Of States In Respect Of Treaties, ; see also D. Vagts, State Succession: The Codifier’s View, 33 Va. J Intl L. 275 (1993).] and state responsibility.[See e.g., Draft Articles On State Responsibility, adopted by the International Law Commission at its 1642nd meeting, 25 Jul 80. Report of the International Law Commission on the Work of its 32nd Session 5 May-25 Jul 80. U.N. GAOR, 35th Sess., Supp. No. 10, at 59, U.N. Doc. A/35/10 (1981), reprinted in [1978] 2 Y.B.Int’l L.Comm’n 100, U.N. Doc. A/CN.4/SER.A/1981/Add. 1 (Part 1)]. 
To an international lawyer, the notion that a state has “collapsed” giving rise to a power vacuum is difficult to comprehend. For international law does not recognize the existence of such a vacuum because when a state ceases to exist it is paradoxically survived by, or incorporated into, another state. It is this entity that steps into the vacuum, so to speak, created by the disappearing state (Poland as a state, for example, disappeared from the political map of Europe for a period of seventy years (1772-1793) during which time it was divided among Austria, Russia, and Russia).  Simply put, under international law a state dies only to be immediately resurrected (reincarnated) as another state. The issue of state death and subsequent resurrection is addressed by the doctrine of continuity which provides that once a state has come into existence, it continues to exist until extinguished by absorption into another state.  A few modern examples of changing political identities by absorption or annexation include: the annexation of the Baltic states of Estonia, Latvia, and Lithuania by the Soviet Union following World War II; Germany’s absorption of Austria through the Anschluss of 1939; the short-lived United Arab Republic (1958-61) between Libya and Egypt; the reunification of the former British Trust Territory of Southern Cameroons with the Republic of Cameroun in October 1961 to form the Federal Republic of Cameroon (1961-1972); the merger of the Republics of Tanganyika and Zanzibar to create Tanzania; and the recent unification of East and West Germany into 1990. See Sharon A. Williams & Armand L.C. De Mestral, An Introduction To International Law, Chiefly As Interpreted And Applied In Canada 93-102 (2d Ed. 1987); Daniel P. O’connell, 1 State Succession In Municipal Law And International Law 3-7 (1967); Oscar Schachter, State Succession: The Once and Future Law, 33 Va. J.I.L. 253, 253-54, 256-58 (1993).

Alternately, the state can cease to exist by dissolution where multiple states may emerge from a single sovereign state. This is what happened when Russia, Georgia, Azerbaijan, and the other states emerged from the Soviet Union dissolved in 1991 or the rise of Slovenia, Bosnia-Herzegovina, and Croatia from the break-up of Tito’s Yugoslavia. Neither absorption nor dissolution disturbs any existing legal rights or concomitant legal duties. The continuity or identity of the international legal personality of a state is not affected by internal changes in the government whether are the product of legal or extra-constitutional or revolutionary means.  By the same reasoning, all rights and title to property of the state that has ceased to exist remain undisturbed. For instance, the issue whether a change of government extinguished any contractual obligations owed by the predecessor government was raised in the Tinoco Concessions Arbitration with respect to the government of General Frederico Tinoco who had come to power via a military coup in January 1917 only to be thrown out two years later. The leading powers, including Britain and the United States, refused to recognize the Tinoco government, and yet, during his tenure in office, he gave valuable concessions to several British subjects. When Tinoco was deposed, the successor government abrogated all of the contracts and concessions made under its predecessor. The British government protested on behalf of its nationals and brought an international claim. Chief Justice William Howard Taft of the U.S. Supreme Court, serving as the sole arbitrator, ruled that even though Britain had declined to recognize Tinoco, that government was the de facto ruler of Costa Rica and his acts were presumptively valid, and if Costa Rica wanted then to cancel the contracts, it would be liable for damages. The change in regime did not affect the contractual obligations of the Costa Rican state. See U.K. v. Costa Rica, 1 U.N. Rep. Int’l Arb. Awards, 269 (1929);For the proposition that military coups were an example of a change in government not a change in statehood,  see also Trans-Orient Marine v. Star Trading & Marine, 731 F.Supp. 619, 621, judgment reversed 925 F.2d 566 (2d Cir. 1991), on remand 783 F.Supp. 297 (S.D.N.Y. 1992). Trans-Orient involved a suit against the Republic of Sudan for breach of a contract arising from a 5-year exclusive agency agreement to represent the Sudan in a U.S. agricultural trade development agency. Sudan raised two grounds as its defense to escape liability for the contractual obligations of the prior sovereign. First, that it was the successor state subsequent to two military coups, and second, that there had been a fundamental change in circumstances (rebus sic stantibus) [this defense is codified in Article 62 of the Vienna Convention of the Law of Treaties] following the date of the contract. The court denied the defendant summary judgment, reasoning that, since the two military coups effected merely a change of government but did not result in the establishment of a successor state, and since the defendant failed to demonstrate fundamental change of circumstances or that the country was absorbed wholly or partially by another state, the Republic of Sudan was obligated to honor the contractual obligations of a previous government.

The international law of succession is about the reciprocal legal rights and legal duties; who is entitled to what?  For example, in the wake of the break-up of the Soviet Union, the question of which of the successor state should succeed to the U.S.S.R.’s permanent (veto-wielding) seat on the United Nations Security Council was raised and ultimately decided in favor of Russia. See David J. Bederman, International Law Frameworks 59 (2001). Who owes what and to whom? State collapse brings these issues to the forefront. To the international lawyer, a change in the juridical persona of a state boils down to this fundamental question: when a state no longer exists who succeeds to its legal rights and legal obligations. 

What becomes of its treaty obligations? This question is answered by the rules developed under the 1978 Vienna Convention On State Succession In Respect To Treaties. Under the “clean-slate” doctrine, a new state, i.e., one resulting from the process of decolonization, begins life with a clean slate and can pick-and-choose treaty obligations of its former colonial master that it wishes to assume subject only to the requirements of Article -- of the Vienna Convention on the Law of Treaties. 

Who gets to repay sovereign debts?  For instance, Cameroon’s external debt, i.e., funds owed to multilateral financial institutions such as the World Bank and the International Monetary Fund , is placed at $730 million.[See International Development Association & International Monetary Fund, Cameroon: Preliminary Document On The Enhanced Initiative For Highly Indebted Poor Countries 34 (May 2000)]. Who assumes this debt when Cameroon, as some expert ‘state gazers’ predict, ceases to exist? Following the principle of continuity, a change of government does not relieve the state of obligations incurred by a previous or extinct government. The state continues to be bound by the acts and engagements of a predecessor government. In short, from the perspective of international law the question posed by Aristotle, i.e., when a state is no longer the same, is about what becomes of existing rights and obligations of the predecessor state. Are they extinguished or does the successor state succeed to them. On this point publicists are generally in agreement and the only question that arises is the extent to which rights and obligations of a disappearing state are extinguished and subsequently assumed  by the surviving state. 

From the perspective of positive law, a State remains a State so long as it meets all the criteria of statehood prescribed by international law [Article 1 of the Montevideo Convention]. But failure to satisfy the Montevideo Convention requirements will not automatically deny statehood to an entity claiming it:

[A]n entity may qualify as a “state” even if the precise extent of its population or territory is uncertain, even if it is temporarily without a government (as may happen in a “civil war,” for example), and even if it does not manifest complete administration over its foreign relations. Also, it is clear that a state can continue to exist even if it undergoes territorial and governmental change, although such changes, if great enough, may cause its demise and the creation of a new state.[See International Law And World Order 363 (Burns H. Weston, Richard A. Falk & Hilary Charlesworth eds. (1999). 

For instance, the lack of control over a defined territory and the failure to exercise effective government are two of the several factors most frequently included in the definition of a ‘collapsed’ state. The Restatement 3rd of the Foreign Relations Law of the United States addresses these twin issues. In its Comment a of section 201, the problem of territorial control is broached and the position taken is that a state does not lose its status of statehood even if  “all its territory has been occupied by a foreign power or if it has otherwise lost control of its territory temporarily.” This is especially true for states that at their birth were involved in “substantial controversies about their boundaries– e.g., Israel in 1948; Kuwait in 1963; Estonia, Latvia, and Albania in 1919.”  Thus the fact that an entity’s territorial boundaries are not be fully demarcated, so long as it they are sufficiently consistent, its claim to statehood is not affected. 

Statehood is equally not lost, as David Bederman correctly observes, because the State can “satisfy only a very loose standard for having an effective government, e.g., the Congo (Zaire) in 1960.” We can as well include the Congo under Kabila père (1997-2001) et fils (2001-), Somalia, and Sierra Leone. 

Another universally accepted criterion of statehood is capacity to engage in formal relations with other states, i.e., maintaining diplomatic relations. The Baltic States of Estonia, Latvia, and Lithuania were absorbed into the erstwhile Union of Soviet Socialist Republics before World War II. For all intents and purposes, by the act of incorporation these states ceased to exist as states. However, because the United States refused to accept Soviet annexation of these countries,  it continued to treat them as states de jure and de facto throughout the period of annexation. For instance, pre-incorporation treaties between the United States and these countries were treated as continuing in force by the United States Government; the United States also treated consular officials of the three Baltic states as duly accredited; her courts refused to give effect to Soviet Government nationalization decrees directed at Estonian and Latvian property in the United States.

(7) Robert Jackson and Christopher Clapham have become the leading proponents of this view. In his 1990 treatise entitled Quasi-States: Sovereignty, International Relations, and The Third World 25 (1990), Jackson puts forth the bold argument that in the rush to decolonize erstwhile European colonies in Africa, short shrift was made of the fundamental rules of positive international law. Ignored were such factors as “balance of power and self-help”, rules which underpin classical international relations. Had these basic rules been respected and retained in the determination of new statehood, fewer countries, Jackson declares, “would have gained independence and probably many would still be colonies today.” (Emphasis added.). Clapham echoes this thesis when he in turn refers to a postwar decolonization pact entered into by European colonial powers in a hurry to divest themselves of their overseas colonies even though the timing was most inopportune. In reconstructing that period, Clapham argues that during much of the post-1945 era in international politics, the community of nations tacitly agreed not to challenge claims to statehood even in cases where the legitimate criteria for statehood were hardly met. See Christopher Clapham, Africa And The International System: The Politics Of Survival 15 (1995).

(8) See e.g., Basil Davidson, The Blackman’s Burden: Africa And The Curse Of The Nation-State (1992). 

(9) See Archie Mafeje, The Ideology of ‘Tribalism’,  Journal of Modern African Studies, Vol. 9, No. 2, (August 1971), 253-261.

(10) While the spotlight has been directed at the crisis of state collapse in Africa, this phenomenon is by no means unique to the continent but one that has plagued pre-modern and modern state systems. See generally The Collapse Of Ancient States And Civilizations (Norman Yoffee & George L. Cowgill, Eds. 1988; J.A. Tainter, The Collapse Of Complex Societies (1988).

(11) They may, for instance, take the view advanced, respectively, by William Reno and Paul Richards whose field studies in Sierra Leone convinced them that the state-centered analysis of African politics which focuses almost exclusively on recent crisis “obscures the long-term relations between control of informal markets and the exercise of political power in the context shaped by the country’s place in the global economy.” That what in fact passes for state collapse is in reality a transformation of the forms of state power, that is, an alternative institutionalization of power by the ‘shadow’ state. According to Richards, the shadow state emerges when elites can “no longer construct effective power relations simply by controlling institutions of the official state even if they helped themselves to what remained of foreign aid budgets and stole tax revenues to reward their clients. The only place effective power relations could now be built was within a ‘shadow’ state linked to ‘informal markets’ ... .” These processes are best seen not as a collapse of the state but a transformation of the forms of state power. See William Reno, Corruption And State Politics In Sierra Leone (1995); Paul Richards, Fighting for the Rain Forest: War, Youth and Resources in Sierra Leone cited in John Gledhill, Power And Its Desguises: Anthropological Perspectives On Politics 104 (1994).

(12) Frantz Fanon, The Wretched Of The Earth (1961).

(13) See William Reno, Warlord Politics And African States, 166 (1999).

(14) Id., at 87.

(15) See e.g., Ali Mazrui, Decaying Parts of Africa Need Benign Colonization, 2 Codesria Bulletin (1995); _________________, Self-Colonisation and the Search for Pan-Africanism: A Rejoinder, 2 Codesria Bulletin (1995); ______________, Towards a Benign Recolonisation of the Disintegrating States of Africa, 2 Codesria Bulletin (1995); Archie Mafeje, Recolonisation or Self-Colonisation and Malignant Minds in the Service of Imperialism, 2 Codesria Bulletin (1995).

(16) A participant at the Ethno-Net Africa Conference, Dr. Nantang Jua, preferred the term “stasis” in describing this absence of movement at the top.

(17) In the discussion that followed my presentation at the Ethno-Net Africa conference, a participant, Dr. Charly Gabriel Mbock preferred this word to my “privatization.” 

(18) See World Bank, 1992 World Development Report 238 (1992). 

(19) See Merilee S. Grindle, Challenging The State: Crisis And Innovation In Latin America And Africa 33 (1996).


© The ideas and opinions expressed in this article are those of the author
and do not necessarily reflect the views of UNESCO.

© Les idées et opinions exprimées dans cet article sont celles de l'auteur
et n’engagent pas la responsabilité de l´UNESCO.