‘국가실패’에 따른 법적 공백에 관한 고찰

“State failure” generally refers to the situation where a sovereign State suffers from continuos internal conflicts due to collapse of governmental authority that results in the loss of effective control over the large parts of the territory. The situation of State failure has distinctive manifestations relating to the ‘government’ which is one of constitutive elements of the State, and the loss of effectiveness which is presumed in that concept. State failure is an extraordinary circumstance occurring within a previously recognized sovereign State. Thus, most authors observe the situation under the “State” concept instead of identifying the situation with its specific incidents of the implosion of government, although defining the core feature of State failure as “the absence of effective government.” A State in the situation of failure deviates from the assumption of international law that a State is a single unitary legal subject capable of exercising its legal capacity through its government. Because there is no ascertainable effective governmental authority that can factually exercise the sovereignty of a State, the situation poses intricate questions on the international representation of the State, and on implementation of and compliance with international law in the absence of an authority to assume responsibility for the State’s non-compliance. Even if this situation is temporary and transitional, the legal vacuum and complications in applying international law in the absence of a government representing the State during such a period cannot be neglected. Throughout the examination of legal vacuum that could be raised in the situation of State failure, this article reveals how the existence of a State in the absence of effective government is supported and sustained by international law, and at the same time, how the current State-centered international legal framework is challenged by the situation of State failure.