Resisting Clarity Scandinavian Ambiguity in the ‘Unable or Unwilling’- Debate

Abstract

When conflict arose between Iraq, Iraq’s US-led allies, and the terrorist group ISIL in 2014, legal scholars paid close attention. Amid the fighting, these scholars tried to determine if the States getting involved, including Denmark and Norway, did so on the basis of a belief in the validity of the ‘Unable or Unwilling’-doctrine of self-defence. While some States were clear on this matter, Denmark and Norway both seemed ambiguous and hesitant – and were therefore habitually deemed sceptics of the doctrine. This article demonstrates, however, that this conclusion cannot be sustained. This insight is put forward, firstly, to correct a misleading narrative about the ‘Unable or Unwilling’-doctrine, and secondly, to caution against relying on State practice and statements when doing so tells an uneven story and leads to disconnects between what States do, and what they say – especially when there are palpable political reasons for States to resist clarity.

Keywords: Collective self-defence; non-state actors; State practice; opinio juris; Unable or Unwilling