Statehood and the Third Geneva Convention
Robert J. Delahunty
University of St. Thomas School of Law (Minnesota)
Virginia Journal of International Law, Forthcoming
U of St. Thomas Legal Studies Research Paper No. 05-06
Statehood, in the formal legal sense, and the related concept of sovereignty, have come under increasing pressure, even erosion, in recent years. Globalization has raised questions about the ability of states to regulate activity within their borders. Ethnic or factional strife has led to the collapse of state authority. Colonial efforts to impose a nation-state structure on non-Western parts of the world appear to have failed to take root. While perhaps not consistent everywhere, the decline of the nation-state as the primary unit of governance is particularly acute in areas of the world that have posed the most difficult challenges to the international community of late. Erosion of the state has led to two types of problems. First, the disappearance of state authority in a territory has occurred alongside significant human rights disasters. Second, failure of state authority can pose a direct threat to other nations. A territory without any effective government can become a safe haven for terrorists, transnational crime, and the proliferation of weapons of mass destruction.
Throughout, the international community seems generally to have clung to the fiction of statehood - despite these many cases in which it has permitted ostensible state sovereignty to be gravely abridged - because it has an interest in maintaining the nation-state as the organizing unit of international relations. The community of nations seems to have grasped that the conditions of good global governance depend on the existence of states capable of controlling their territories, policing their populations, and discharging their international obligations. In other words, states still remain the most effective means so far to control or prevent conduct that threatens international order, global welfare, and the security of other states. Accordingly, even when military, financial or judicial interventions in the domestic affairs of a malfunctioning state seem to derogate from the principle of sovereignty, they may, on a closer view, be upholding it and advancing the broader interests behind the nation-state as an organizing principle in international affairs and law. This paper examines these issues issues through the lens of the Bush Administration's legal views on the status of al Qaeda terrorists and Taliban fighters under the Geneva Convention (Third) Relative to the Treatment of Prisoners of War, placing that decision within the context of these broader changes in the international system.
Number of Pages in PDF File: 26
Keywords: Geneva Convention, International Law, Statehood, International Order, International Security, Prisoners of War, Taliban, Al Qaeda, State Sovereignty, Terrorism
Date posted: September 27, 2005
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