Toward an International Law for Ungoverned Spaces

Abstract

UNGOVERNED SPACES, STRICTLY DEFINED AS SPACES NOT EFFECTIVELY GOVERNED by the state, exist all over the world, presenting particular difficulties to public international law that is historically premised on sovereignty and state control. Notorious examples of such spaces include south-central Somalia and the Federally Administered Tribal Areas along the Afghan-Pakistan border. These spaces destabilize the international system in novel ways--and they might also be dangerous. Many of the terrorism plots from the late twentieth and early twenty-first centuries emanated from safe havens afforded by ungoverned The lack of governance over certain spaces also raises concerns about development, including the health, education, human rights, and economic welfare of affected populations. In a 2010 article in Foreign Affairs, Michael Crawford and Jami Miscik identify the emergence of mezzanine actors within ungoverned spaces, who insert themselves at the level between the government and the people. (1) These actors--such as Hezbollah, the Afghan and Pakistan Taliban, al-Qaeda, al Shabaab, Lashkar-e-Taiba, the Haqqani network, and the Islamic State, to name a few--operate in a legal netherworld outside the control of domestic legislation and free from the responsibility of international rules. In order to respond to the challenges posed, Crawford and Miscik call on governments to work over time to recast the international legal environment and modernize international law so that it addresses the problem of ungoverned spaces. (2) To date, this challenge remains unanswered. In dealing with ungoverned spaces, states and international organizations continue to cling to outmoded rules of international law. Powerful governments use these rules to their advantage, justifying interventions or making unequal bargains with their weaker counterparts. Meanwhile, desperate leaders, seeking to maintain their formal position, mock the rules by asserting sovereignty over spaces completely outside their effective control. Civilian populations are caught in the middle, bereft of the support they deserve from formal institutions, and left to the whims of informal actors. Hearts of Darkness Ungoverned spaces are often portrayed as a threat to international security; however, the issue is much more pervasive. States that lack an effective government are unable to provide for their citizens. Building codes are ignored and sanitation services are discontinued. Borders and coastlines are left unpatrolled. Unfettered transnational corporations act with impunity, effectively outside of anyone's jurisdictional control. Collectively these symptoms have obvious internal effects, but they also apply externally. The lack of an effective government makes treaty making, treaty compliance, and requests for assistance from international development organizations a practical impossibility. Diplomatic and consular relations also break down when sending states recall their representatives. Such externalities isolate the receiving state and exacerbate the negative effects of ungoverned space. Existing governance arrangements provided by international and domestic law fail to address in full any of these potential challenges to the international system. Another misperception about ungoverned space is that it is limited to remote inaccessible territory of the type made infamous by al-Qaeda and al Shabaab. In fact, ungoverned spaces are as likely to emerge in the middle of metropolitan areas--think of the Tower of David in Caracas or the favelas in Rio de Janiero--as they are in mountain or desert redoubts. Furthermore, with the advent of the Internet and other information technologies, much of the man-made virtual space has eluded centralized state or governmental control. Operational zones, such as those applicable to private military contractors or corporations operating transnationally, are often formally regulated but functionally lawless. …