Defending Weak States Against the 'Unwilling or Unable' Doctrine of Self-Defense
Journal of International Law and International Relations (Toronto), Forthcoming
46 Pages Posted: 29 Mar 2013
Date Written: March 26, 2013
Victim states occasionally use force to target non-state actors that have allegedly attacked the victim state, on the pretext that the host state is "unwilling or unable" ("ineffective") to act. The international law permissibility of such force is unclear: state responsibility principles do not hold ineffective states liable, the universe of state practice is small and the International Court of Justice and some scholars deny the legality of such force while others disagree. This article is the first dedicated to a critical analysis of the "unwilling or unable" doctrine from both, a law and policy perspective. It argues that, although a right of self-defense in ineffective host states may be desirable in light of contemporary security threats, extant scholarship on the doctrine suffers from blind spots. Not only has debate been almost exclusively doctrinal but, in focusing myopically on the security concerns of victim states vis a vis non-state actors, scholars have paid little attention to security vulnerabilities of host states vis-a-vis victim states. In fact, much of the literature on the "unwilling or unable" doctrine unquestionably assumes that it should be the victim state that should self-determine when another state is ineffective and fails to recognize two conditions that make erroneous determinations particularly likely. First, host states tend to be weak states, susceptible to coercion and unable to retaliate against misbehavior by powerful victim states. Second, even if the international community is willing to punish erroneous uses of force, since host state ineffectiveness may not be observable, detection of misbehavior becomes very difficult. This article argues that any serious analysis of the doctrine must be based on an appreciation of these conditions and suggests that a right of self-defense on grounds of state ineffectiveness must thus be subject to corresponding constraints. It accordingly proposes an alternate framework to induce transparency: victim states seeking to rely on ineffectiveness as grounds for self-defense must disclose claims of host state ineffectiveness to the Security Council which acts as a fact-finder and information transmitter for the benefit of the international community. The host state can challenge the claim of ineffectiveness while the Counter-Terrorism Committee can provide empirical information as to that host state’s ability and willingness to comply with anti-terrorism obligations.
Keywords: unwilling, unable, unwilling or unable test, self-defense, drones, non-state actors, Pakistan, targeted killing, armed attack, terrorism
JEL Classification: K33
Suggested Citation: Suggested Citation