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‘State failure’ is an important concept in the dialogue of international security that has emerged in the past two decades through political, rather than legal, channels. Consequently, there have been few jurisprudential analyses of the normative implications of this phenomenon. Thus, approaching this issue from the perspective of international law, it is submitted that, in managing the practical and political realities of the failed State, the international community continues to uphold a notion of ‘statehood’, which allows the state-centric Westphalian system of international law to continue operating uncompromised. However, it is argued that the practice relating to failed states and their unique character indicates that the notion of ‘external state sovereignty’, as an unassailable entitlement of statehood, has been generally rejected. Rather, it appears that, whilst recognition of ‘statehood’ is preserved, the ‘sovereignty’ of failed states have been treated as conditional on the existence and effectiveness of their government (which represents the peoples of the State). Consequently, it is submitted that external state sovereignty, which acts as a shield against intervention in international law, can be taken away and returned to these failed states by the international community depending on their perception of the functionality of the state (and its government). Indeed, this has happened several times since the end of the Cold War—in  inter alia  Somalia, Iraq, and Afghanistan. This juridical position has potentially significant implications for the  jus ad bellum , which utilizes sovereignty as one of its critical measures in the determination how to appropriately apply the United Nations Charter regime on the use of force in ‘hard’ situations. Some of these implications are examined at the end of this article—particularly with regard to the expansion of the law surrounding self-defense.

State Failure and the Changing Face of the Jus ad Bellum