Fictitious States, Effective Control, and the Use of Force Against Non-State Actors

Abstract

This Article examines how states respond to violent non-state actors operating from “fictitious” states. Fictitious states possess international legal personality but they lack effective control over their territories and populations. Examples of fictitious states include Pakistan, Yemen, and Somalia. These entities are not states that “failed” but territories where the paradigm of traditional statehood is inapplicable.

In contrast to much of the literature analyzing the use of force vis-à-vis contemporary threats, this Article contends that the global security problem posed by fictitious states is more fundamental than that posed by terrorism or failed states. The modern threat emanating from fictitious states is most vividly illustrated by Al Qa’ida; however, violent non-state actors have long exploited territories beyond the writ of any central government. Often, when threatened by these non-state actors, victim states have responded with transborder force.

This Article discusses key incidents over the past two centuries that elucidate the extensive and under-appreciated history of a state’s right to exercise defensive force against non-state actors in ungoverned territory. Such incidents include US intervention in Spanish Florida, British intervention in New York State, and Russian intervention in Mongolia. These incidents show that: (1) there is a well established customary right of self-defense of victim states that is not contingent upon the consent of host states; and (2) this customary right was preserved by the United Nations (UN) Charter.

The challenge for the international community is identifying the conditions under which a victim state may act in self-defense against a non-state actor. The state practice and legal claims investigated in this Article demonstrate that the principles governing such action are the same as those that apply to state-to-state self-defense: necessity and proportionality. This Article explains how these principles structure the use of force against non-state actors and delineate the battlefield in a conflict between a victim state and a non-state actor, such as the Unit-ed States’ conflict with Al Qa’ida.

Keywords: non-state actors, targeted killing, terrorism, use of force, jus ad bellum, armed conflict, geography of armed conflict, necessity, failed states, war on terror, Al Qaeda, self-defense, drones, Yemen, Pakistan, state recognition, statehood