Right to Self-Defence, Attribution and the Non-State Actor – Birth of the 'Unable and Unwilling' Standard?

Abstract

The debate surrounding “unwilling or unable” states and terrorist attacks stemming from their territory reached a zenith during the US led strikes against IS posts in Syria. The questions raised mainly concern the concept of “armed attack” within the meaning of Art. 51 UNC. Concentrating on the notion of “attribution” of non-state actor conduct to states this article evidences that all approaches put forward in favor of grounding attribution on “unwillingness” or “inability” of states to suppress terrorist activities have not reached the level of lex lata. The systematics of the Charter allocate the responsibility to deal with “unwilling or unable” states to the Security Council. Even if the Security Council is paralyzed and fails to act, “armed enforcement actions” by states against non-state actors are as of current law not legal. This result makes sense also from a policy perspective.

This contribution of part of the research project "The Unwilling or Unable State as a Challenge to International Law" funded by the Fritz Thyssen Foundation as well as the Daimler and Benz Foundation.

Keywords: Self-defense, self-defence, unwilling or unable, state, Syria, non-state actors, Art. 51 UNC, self-defense against non-state actors, omissions, state responsibility, ungoverned spaces, forfeiture of sovereignty, Security Council, collective security, normative change, evolutive interpretation