Ashley Deeks’ Problematic Defense of the “Unwilling or Unable” Test

by Kevin Jon Heller

Ashley Deeks, a fellow at Columbia and a former member of the Office of the Legal Adviser, has posted an essay on SSRN — forthcoming in the Virginia Journal of International Law — entitled “Unwilling or Unable: Toward an Normative Framework for Extra-Territorial Self-Defense.”  Here is the abstract:

Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test‟s lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.

This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state‟s inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test‟s deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is “unwilling or unable” to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the “unwilling or unable” inquiry. It then applies those factors to a real-world example – Colombia‟s use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states‟ decision-making and the evaluation by other states of the action‟s legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.

The essay is a very interesting read, and Deeks should be commended for trying to think systematically about what the “unwilling or unable” test would require in practice.  There is, however, a fundamental problem with the essay: it completely fails to establish its thesis that “[i]nternational law traditionally requires the victim state to assess whether the territorial state is ‘unwilling or unable’ to suppress the threat itself.”  The current state of the legal regime governing extraterritorial attacks against non-state actors is one of the most difficult and controversial areas of international law, requiring a careful analysis of state practice and opinio juris.  Unfortunately, such an analysis is absent from Deeks’ essay.  Instead, Deeks relies on a mistaken understanding of neutrality law, provides little more than a few isolated examples of extraterritorial attacks that have ostensibly been justified under the “unwilling or unable” rubric, and ignores all of the contrary examples.  That is a methodologically unsound approach, and it significantly weakens what is otherwise a very good essay.

Deeks begins her discussion of the supposed “historical lineage” of the “unwilling or unable” test by turning to the law of neutrality, arguing (p. 19) that “neutrality law permits a belligerent to use force on a neutral state’s territory if the neutral state is unable or unwilling to prevent violations of its neutrality by another belligerent.”  The law of neutrality, however, applies only in international armed conflicts between two legitimate belligerents; it says nothing about the use of extraterritorial force against NSAs — as Deeks herself recognizes (p. 16):

Although neutrality law does not directly govern uses of force between states and non-state actors, this section will show that the equities and concerns of the neutral state and an offended belligerent in the neutrality law context are analogous to those of the territorial state and the state seeking to use force in self-defense against a non-state actor on that territory.

This is a very significant admission.  The law of neutrality may provide normative support for the  “unwilling or unable” test in the context of attacks against NSAs, but it does not provide legal support for it.

Again, Deeks recognizes this — so she then cites (p. 22) UK and U.S. laws that effectively applied neutrality law to situations of internal armed conflict, arguing that the existence of such laws “explain[s] how neutrality rules developed to govern acts by states during international armed conflict expanded beyond that context to govern acts by non-state actors during peacetime (and in non-international armed conflicts).”  But that is simply mistaken. It is true that the UK and the U.S. enacted such laws (state practice), but they never claimed that they did so out of a sense of legal obligation — the necessary condition of such laws counting as opinio juris in favor of the “unwilling or unable” test.  On the contrary, both states recognized that the law of neutrality in no way obligated them to prohibit their nationals from (to quote Lauterpacht) “committing such acts as amount to making the national territory a base for military or naval operations against a friendly state.”  As the U.S. Attorney General said in 1895 (emphasis added):

While called neutrality laws, because their main purpose is to carry out the obligations imposed upon the United States while occupying a position of neutrality toward belligerents, our laws were intended also to prevent offenses against friendly powers whether such powers should or should not be engaged in war or in attempting to suppress revolt.

To quote Tucker, we must always distinguish between “the operation of the law of neutrality as determined by international law and the operation of municipal neutrality laws. The latter may be applied to situations other than war in the sense of international law.”  That distinction, unfortunately, is lost on Deeks.  (For a longer discussion of the distinction, see my response to Karl Chang’s essay on neutrality here.)

There is, of course, another problem with using the law of neutrality to support the “unwilling or unable” test: that law predates the adoption of the UN Charter, which strictly regulates the use of interstate force.  Deeks recognizes the problem, but barely addresses it — simply claiming (n. 33) that “[t]he better view is that neutrality law remains relevant and applicable, at least to international armed conflicts,” and that “[e]ven if neutrality law were defunct… the existence of the ‘unwilling or unable’ test in that law provides historical depth to today‘s rule.”  Historical depth, maybe.  But legal support?  Definitely not — especially as Deeks admits that the current relevance of the law of neutrailty is limited to international armed conflicts.

The real question, then, is what the customary rule governing extraterritorial force against NSA might be in the post-Charter world.  Deeks discusses three different positions on the relationship between Article 2(4) of the UN Charter’s prohibition on interstate force and Article 51’s exception to that prohibition for acts of self-defense in response to an armed attack: (1) that the armed attack giving rise to the right of self-defense must involve a state; (2) that the armed attack can involve a non-state actor (NSA), but the actions of the NSA must be attributable to a state; and (3) that the armed attack can involve a NSA and does not require any kind of attribution to a state.  Deeks says that a “premise” of her article, supposedly based on “extensive state practice,” is that the third position is correct.  I’ll return to that supposed state practice below, but it’s worth noting here that Deeks attributes the three positions on self-defense to “groups of scholars” — and then relegates to a footnote (n. 17) the rather important fact that the second position is the one that has been specifically endorsed, in multiple cases, by the International Court of Justice.  ICJ decisions are not themselves primary sources of international law, but the failure to discuss those decisions is a serious problem with Deeks’ essay — especially as the essay does not even mention the Nicaragua case, in which the ICJ held the most clearly that state attribution is required.

So what is this “extensive” state practice that Deeks cites as evidence that the “unwilling or unable” test reflects customary international law?  Actually, it’s not extensive at all.  In the essay’s introduction, she mentions (pp. 4-5) Russia’s attacks on Chechen rebels in Georgia; Israel’s attacks on Hezbollah and the PLO in Lebanon; and Turkey’s attacks on the PKK in Iraq.  Later on, she mentions the Soviet Union’s 1921 attack on White Guard bands in Outer Mongolia; U.S. attacks on Viet Cong soldiers in Cambodia during the Vietnam War; U.S. attacks on al-Qaeda in Afghanistan and the Sudan; and Colombia’s attacks on FARC in Ecuador.  That’s it.  Pretty weak tea indeed — especially when we factor in the international response to many of those uses of force against “unwilling or unable” states, such as the Organization of American States’ unequivocal condemnation of Colombia’s attacks on FARC as a violation of Ecuador’s sovereignty.

More importantly, Deeks simply ignores the numerous instances in which the Security Council and/or states have condemned extraterritorial uses of force against NSAs whose actions were not attributable to the state whose territory was attacked.  Examples include Israel’s 1985 raid of a PLO headquarters in Tunis; Iran’s cross-border attacks throughout the 1980s on Kurdish fighters in Iraq (which were vociferously condemned by the U.S.); and Rwanda’s attacks in the late 1990s on Hutu rebels in the DRC.

To be sure, it appears that customary international law is slowly evolving away from the Nicaragua standard, especially in the wake of 9/11.  But it is far from clear whether that standard has been replaced by the “unwilling or unable” test.  Neither Christian Tams nor Tom Ruys, the two scholars who have examined state practice and opinio juris most closely, are willing to go that far.  Tams concludes that state attribution is still required, but can be satisfied by something less than Nicaragua‘s “effective control” of the NSA.  And Ruys concludes that “[d]e lege lata, the only thing that can be said about proportionate trans-border measures of self-defence against attacks by non-State actors in cases falling below the Nicaragua threshold is that they are ‘not unambiguously illegal’.”

Indeed, what is most surprising about Deeks’ essay is that Deeks herself admits that the “unwilling or unable” test cannot be considered customary international law.  If you look at footnote 55 of her essay, you find this remarkable statement:

I have found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom), nor have I located cases in which states have rejected the test.    Even if one concludes that the rule does not rise to the level of custom, however, the rule makes frequent appearances in state practice and therefore is the appropriate starting point from which to determine how the norm should develop.

That is a remarkable admission — and one that directly contradicts Deeks’ thesis that “[i]nternational law traditionally requires the victim state to assess whether the territorial state is ‘unwilling or unable’ to suppress the threat itself.”  If there is no opinio juris that supports the “unwilling or unable” test, it is difficult to argue that the test reflects customary international law — especially in light of the consistent and contrary pre-9/11 state practice and opinio juris that both Tams and Ruys discuss.

The bottom line: de lege ferenda, there is much to recommend Deeks’ essay.  De lege lata, however, it completely fails to make its case.

http://opiniojuris.org/2011/12/15/ashley-deeks-failure-to-defend-the-unwilling-or-unable-test/

32 Responses

  1. Response…
    Kevin: correct!  I have already responded to such assertions made in her ASIL Insight and have noted that there is no such limitation of the use of armed force in self-defense against armed attacks.  See my Denver J. piece — http://ssrn.com/abstract=1718548
    cite is: 39 Denver J. Int’l L. & Pol’y 569, 580-81 (2011).

  2. I wish that in this setting the analysis would include the other side of the coin – namely – the armed attack by a “victim” state on the NSA being the basis for an Article 51 response of the hosting state.  That to me takes the veil off of the “unable or unwilling” canard.
    Best,
    Ben

  3. Kevin,
    Fair points, all, but certainly not indisputable. Recall that Philip Alston’s report on targeted killing (submitted to the General Assembly, A/HRC/14/24/Add.6), after citing Article 2(4)’s prohibition on the use of force, stated the following:
    “Under the law of inter-state force: A targeted killing conducted by one State in the territory of a second State does not violate the second State’s sovereignty if either (a) the second State consents, or (b) the first, targeting, State has a right under international law to use force in self-defence under Article 51 of the UN Charter, because (i) the second State is responsible for an armed attack against the first State, or (ii) the second State is unwilling or unable to stop armed attacks against the first State launched from its territory. International law permits the use of lethal force in self-defence in response to an “armed attack” as long as that force is necessary and proportionate.”
    Further, as I argued in our PENNumbra debate, the principle that a state must prevent the use of its territory to harm other states or their nationals (and also to prevent or remedy harms caused to aliens by its nationals) was fundamental in international law and is REFLECTED in US Neutrality Acts. Both the international principle and US acts applied without respect to the existence of an international armed conflict. A state’s failure to meet its responsibilities in this regard could actually result in international armed conflict. Articles on the ATS by Tom Lee (in Columbia Law Review) as well as a more recent one by Anthony Bellia & Brad Clark (in Chicago Law Review) document the existence of this fundamental international principle and its effect on a proper understanding of the ATS. This also explains the Supreme Court’s statement in The Three Friends that I quoted in our debate.
    We can debate whether this undoubtedly natural-law-based principle (part of Vattel’s “voluntary law” category) survived the positivist transformation of international law and/or the adoption of Article 2(4). Alston apparently thinks it did, in the form of Article 51′s preservation of the inherent right of self-defense. (We can then debate what constitutes an armed attack by a non-state actor, etc., but that is an entirely separate matter from the subject of this post).

  4. Response…
    Alston is clearly wrong!  And all U.N. members have “consented” in advance to the use of armed force in response to ongoing armed attacks — in Art. 51 of the Charter.
    http://ssrn.com/abstract=1520717
    Ben: if host state not attacked, no art. 51 right of self-defense pertains.  What about state attack on a non-state actor that did not itslef attack the state — depends on the non-state actor’s status, e.g., as a recognizable “people” entitled to self-determination, or a belligerent.

  5. John,

    I have nothing but respect for Philip, but his conclusion is not based on an (expressed) analysis of state practice and opinio juris.  Neither is Noam Lubell’s.  Neither is Deeks’.  To the best of my knowledge, the only significant analyses of what the state of the law is — as opposed to what a small number of states like the U.S. would like it to be — are those by Tams and Ruys, who reach the conclusions mentioned above.

    As for this supposed natural law principle — how can one respond to that?  The principle obviously was not reflected in the law of neutrality, which states never applied to non-international armed conflict (unless the rebel group was recognized as a legitimate belligerent, creating an international armed conflict).  And the principle certainly did not underlie the US Neutrality Acts — at least not according to the US.  As I discuss in my response to Chang, and as scholars from Oppenheim to Lauterpacht to Tucker have recognized, the US always accepted that its extension of the (international) law of neutrality to non-international armed conflict was a political decision, not a legal one.

  6. Host state is harboring Osama Bin Laden for its own reasons.  We kill Osama Bin Laden in host state which complicates political situation for the host state (say its relations with China which was one of the reasons for harboring OBL).  Host state considers this an armed attack.  Why Jordan is it not an armed attack on the host state whatever the attacking state thinks it is (attacking state may think it is self-defense)?  The host state certainly may consider it an armed attack triggering its Article 51 right of self-defense.
    Best,
    Ben

  7. Question, why is there not more attention given to the limiting clause on 2(4) — i.e., force is only prohibited if it is directed at the territorial integrity or political independence of any state.  Going after NSA doesn’t threaten the territorial integrity (attacking state is not annexing territory) or political independence of the “hosting” state.  Therefore, it seems that 2(4) does not cover such attacks.

  8. That position has indeed been taken from time to time, but it has never gained traction.  The problem with it is that an extraterritorial attack on an NSA does directly affect the attacked state — it often kills its nationals, if only collaterally; it harms its environment; it can destroy its infrastructure.  And don’t forget, there is another clause in Article 2(4): “or in any other manner inconsistent with the Purposes of the United Nations.”  The prohibition is not just about political independence or territorial integrity.

    For a good discussion of this issue, in the context of why extraterritorial attacks on a NSA necessarily create an international armed conflict, see Dapo Akande here.

  9. Professor Heller, that is an interesting point.  By your account, what uses of force would be allowed against a state by another state, putting aside Art. 51.  You must have some acts not covered, otherwise Art. 2(4) would just read “All Members shall refrain in their international relations from the threat or use of force against any state.”  In other words, what does the caveat of territorial integrity or pol. independence mean.

    BTW, as a tidbit, I know Thomas Franck used to say, at least to his students, that those two clauses meant nothing.  Seems implausible.

  10. My take is here at LieberCode.  As I explain more fully in my post, i think it is possible to concede that the use of force against the NSA violates the host state’s sovereignty, but still conclude that the defensive use of force is not illegal.
    On the second issue of whether an attack by a NSA triggers Article 51, I think that some international lawyers’ obsession with positivism have prevented them (and the ICJ) from understanding both the natural law origins of Article 51, as well as the continuing natural law definition of that right.

  11. I guess states are also obsessed with positivism, because until 9/11 they consistently — through the UN and independently — rejected the natural law origins of Article 51, as well.

  12. Kevin,



    As discussed by Lee, Bellia and Clark (and supported by my own research), observance of the “harm-prevention” principle (sometimes called a neutrality principle in U.S. case law) that I earlier discussed, which also seems to underlie the law of neutrality applicable in international armed conflict, was necessary to prevent infringing the “perfect rights” of other nations.  Violations of such rights give the offended state just cause for reprisal or war. 



    I submit that such natural law concepts still provide opinio juris in a great many circumstances — including this one.  This is arguably why the U.S. did not clearly state its reasons for enacting the ATS or for the breadth of its Neutrality Acts.  They were simply understood to be necessary to implement well-understood international obligations of that era.  The fact that the natural law principles underlying neutrality law in interational armed conflict are not now well understood is likely the result of the positivist shift in international law.  When I read Ashley’s piece, I see an attempt to articulate the existence of this underlying principle of the natural law of nations, articulated by Vattel and others.

    (As an aside: in my opinion there has been a merger of Vattel’s concepts of voluntary and customary law in the bulk of contemporary international (positivist) legal theory (including the ICJ statute), one that effectively eliminates natural law as a source of law OR opinio juris.  Harlan Cohen’s recent comments here on plural sources of international law seem to be, at least in part, grasping to regain an understanding of the importance of natural law, or “right”/”moral” thinking, in the development of international law.)
    It is unfortunate that some seem to be willing to cite the barest of evidence, like — let’s say — an unsupported (at least not by “expressed analysis”) ICTY or ICJ assertion of the definition of armed conflict, or of the scope of the inherent right of self defense, as authoritative proof of the substance of a customary norm when it suits their preferred world view.  Yet, when faced with disagreeable (they find) state practice that many states either engage in, support or readily accept (even if the majority of states may not have not found it necessary to engage in it), perhaps like the one we discuss here, those same folks want to see positive proof that a norm exists through an analysis of actual state practice and (rarely present) expressions of opinio juris.  This lack of a principled approach to the substance and sources of international norms only increases general cynicism to the idea that international law is determinative, or even “law.”  



    Regarding the subject of this discussion, Article 2(4)’s positive prohibition on the use of force makes the desire for affirmative proof of any exception to the prohibition understandable.  However, demanding that such proof clearly and independently establish positive (customary) law implicitly assumes that the exception does not exist.  It is also fair to say that the relevant exception to the use of force prohibition already exists in the “inherent” right of self-defense preserved by the charter (and informed by the natural law principles underlying neutrality law).  Therefore, the state practice Ashley documents is relevant not to the existence of a customary exception to 2(4), as you demand, but to how we should understand the scope of the self-defense exception that already exists in Article 51, as Philip wrote.  And further, if we are to accept that the practice Ashley documents helps us understand how states interpret their “inherent right” of self defense, she then offers thoughts about how they should exercise that right given other fundamental principles of international law.  It shouldn’t surprise us that what she comes up with strongly resonates with the general approach to reprisals in the draft articles of state responsibility.

  13. Kevin, then how do you explain UNSCR 1373?

  14. It is no accident, of course, that states in the Global South have protested the expansion of Article 51 most vociferously — it is their territory that is always the object of “self-defense.”  It is costless for states like the U.S. to erode the prohibition on the interstate use of force, because they can attack with impunity while knowing that they themselves are safe from attack.

  15. Hmm… I’m going to go with the fact that it was passed after 9/11…

  16. I submit that such natural law concepts still provide opinio juris in a great many circumstances — including this one.  This is arguably why the U.S. did not clearly state its reasons for enacting the ATS or for the breadth of its Neutrality Acts.

    Sorry, I’m going to go with the US’s own understanding of the Neutrality Acts, which was that they were not required by, nor did they reflect, international law.

    Yet, when faced with disagreeable (they find) state practice that many states either engage in, support or readily accept (even if the majority of states may not have not found it necessary to engage in it), perhaps like the one we discuss here, those same folks want to see positive proof that a norm exists through an analysis of actual state practice and (rarely present) expressions of opinio juris.

    Regarding the subject of this discussion, Article 2(4)’s positive prohibition on the use of force makes the desire for affirmative proof of any exception to the prohibition understandable. However, demanding that such proof clearly and independently establish positive (customary) law implicitly assumes that the exception does not exist.

    So, we need state practice and opinio juris — except when state practice and opinio juris don’t support the U.S. position, in which case all we need are unwritten norms in whose creation most of the states of the world had no opportunity to participate. How convenient!

  17. It is unfortunate that some seem to be willing to cite the barest of evidence, like — let’s say — an unsupported (at least not by “expressed analysis”) ICTY or ICJ assertion of the definition of armed conflict, or of the scope of the inherent right of self defense, as authoritative proof of the substance of a customary norm when it suits their preferred world view.

    And who would that be?  Certainly not Tams or Ruys — who, unlike you, actually bother to examine state practice and opinio juris.  Indeed, your entire argument is that we can simply discard the state practice and opinio juris between 1949 and 2001 in favor of vague unwritten norms that emerged when 170 of the world’s states did not exist and even vaguer analogies to the law of neutrality, which never even applied to non-international armed conflict.

    Remind me, whose “lack of a principled approach to the substance and sources of international norms only increases general cynicism to the idea that international law is determinative, or even ‘law’.”?

  18. The basic absurdity of John’s position, however, is his tacit assumption that the inherent right of self-defense preserved in the Charter somehow supports the “unwilling or unable” test with regard to attacks by NSAs.  International law in the era in which that inherent right developed regulated only wars between states (including insurgencies recognized as belligerencies).  So, if anything, the inherent right of self-defense supports the requirement that, to trigger the right, the armed attack of an NSA must be attributable to a state. Could that right be expanded over time? Of course: that’s the whole point of custom. But the post-Charter state practice and opinio juris continued to require attribution — although, as I clearly and unequivocally noted in the post, post-9/11 state practice and opinio juris is slowly evolving away from the Nicaragua standard.

  19. Therefore, the state practice Ashley documents is relevant not to the existence of a customary exception to 2(4), as you demand, but to how we should understand the scope of the self-defense exception that already exists in Article 51, as Philip wrote.

    Of course, I demanded no such thing.  I acknowledged the existence of the customary right of self-defense and noted that Ashley’s scanty state practice did not support interpreting that right to embrace the unwilling or unable test, particularly in light of the consistent state practice and opinio juris to the contrary in the post-Charter, pre-9/11 era.  You, by contrast, take the position that 60 years of state practice and opinio juris is irrelevant, because… well, I have no idea why.

  20. Kevin,

    I am not ignoring anything. Unlike you, I am not arguing for or against any particular norm.  You have argued that Ashley failed to establish an important premise of her piece and imply that she couldn’t possibly do so.  My comments merely intend to emphasize that reasonable minds differ and that things are not as black and white as you would have them.  

    Contrary to how you have characterized what I said, I suggested additional routes of inquiry, which include looking back to fundamental natural law principles that still permeate international law today.  Those principles support, for example, the very idea that treaties and custom are, in fact, law.  They also support a great bit of what is written in the draft articles of state responsibility, which include “self defense.”  The fact that you prefer not to view international law or contemporary state practice through this very important lens does not negate the value of doing so.  Many serious scholars do.

    Indeed, because your preferred authors decide that the existence or non-existence of the norm in question is only doubtful, a deeper analysis of the issue is required — and preferable to playing a game of “gotchya” with an artice (not a book) that cannot possibly, for reasons of space, document all relevant data. Both of your preferred authors seem to be hunting the snark: a consistent and clear expression of opinio juris in connection with state practice.  We all know that rarely happens for many, many reasons.  My comments emphasize that there are other places to look for evidence of opinio juris, including the philosophical origins of the law, and nothing more.  I certainly did not suggest that we “discard the state practice and opinio juris between 1949 and 2001.”

    I also suggested that YOUR approach, as well as your characterization of Tams and Ruys, is poentially flawed.  Rather than seek to independently establish a customary “unable and unwilling” test that displaced established law, I suggested that we might look at the available state practice — all of it — as evidence of how to interpret Article 51’s preservation of the “inherent right” of self defense.  You cite examples against the acceptance of an “unable and unwilling” test; there are contrary examples.  You seem to accept Nicaragua at face value.  I suggested (albeit indirectly) that Nicargua‘s attribution standard was not the result of the “expressed analysis” that you desired of Philip or Ashley.

    All I have said and am willing to say is that the “unable or unwilling” standard finds support in the very origins of international law as articulated by preeminent international legal scholars/philosophers, and that we might consider that in interpreting the available evidence.  You have recharacterized my arguments to make them easier to counter without addressing their real substance.  Perhaps it is enough to look at your response to Jens, in which you declare that prior to 9/11 states “rejected the natural law origins of Article 51, as well.”  Because the “inherent right” of self defense is itself a product of natural law, I doubt very seriously that this is true.  I suspect you mean that they rejected it in this context, a point upon which the long arc of state practice is not as clear as you would have it.

  21. On the issue of the inherent/natural right of self-defense.
     
    Where pre-Charter was there a right to use force against a NSA?  This right existed in the State of Nature (or however one constructs one’s understanding of nature), before the concept of the Westphalian nation-state even existed.  That’s the very idea of natural law — it has nothing to do with customary international law vs. codified Charter-based law.  That’s why self-defense was unlimited by a positivist conception of statehood.  The right existed long before statehood itself existed (or at least statehood as we understand it today), i.e. it existed as a “natural” right stemming from natural law, and it is precisely this right that is carved out by Article 51.

    I will concede that my view is not en vogue, though it is well worked out in Defending Humanity by George and myself.  People need to take the actual language of Article 51 more seriously.  It says inherent right/droit naturel.
     
    For a full analysis of the negotiating history behind Article 51, that’s covered in Defending Humanity and I won’t repeat the particulars here.
     
    I said at LieberCode that I wanted to move the conversation to a deeper level of abstraction, and I think we’ve accomplished that!

  22. John,

    You have claimed that the natural right of self-defense, created in an era in which international law had nothing to say about non-state actors not recognized as belligerents, justifies the unwilling and unable standard.  Yet you offer precisely nothing in defense of that claim.  Literally nothing.

  23. I would appreciate a release of the comment “awaiting moderation” or that went to spam.

  24. I learn so much on this blog.  I did not know that state practice after 9/11 did not count as customary international law.  I fully support freezing a pure understanding of the world before 9/11, as I look forward to getting my flannel shirt collection out while I listen to Sonic Youth and Soundgarden.

  25. Kevin, your base position is flatly wrong.
    First, the fact that international law regulated only hostilities between states, or between states and “belligerent” non-state actors (NSA’s), says nothing about whether the inherent right of self defense included a right to counter attacks by NSA’s.  That argument conflates the jus in bello and jus ad bellum, something you are quite fond of accusing others of doing, and of berating them for it.
    Furthermore, yours is a very curious position given that the concept of nation-state sovereignty was anything but global/universal when the inherent right of self defense was articulated and developed in international law, and given that international law governed only wars between “civilized” belligerents.  Indeed, the “era in which international law had nothing to say about non-state actors” had something to say about pirates, NSA’s (by definition) that engaged in what Grotius termed “private war.”
    Finally, international law regulated the interaction of states and their nationals much more broadly than the rules governing the use of force (both jus ad bellum and jus in bello).  I would strongly suggest that you read Lee, or Bellia and Clark, or Vattel and Grotius.  The principles that they articulate are what I have offered here.  The fact that you haven’t read or don’t accept them does not mean they weren’t offered or have no value.

  26. I’m conflating the jus ad bellum and jus in bello? Really?  You have argued, incorrectly, that the law of neutrality provides support for the idea that self-defense traditionally extended to NSAs.  I have pointed out, correctly, that the law of neutrality applied only between states (and states and recognized belligerents).  Are you now arguing that the law of neutrality is solely a creature of the jus in bello?  I think that would come as a surprise to Chang, Deeks, et al.

  27. NSD,

    Actually, you seem to have learned nothing from the blog.  No one, certainly not me, has claimed that state practice post-9/11 is irrelevant.  Indeed, I specifically acknowledged the pressure that post-9/11 state practice has put on the traditional attribution requirement.  What I said — echoing the two scholars who have examined the issue most closely — is that post-9/11 state practice and opinio juris has yet to displace the traditional requirement, although it may have relaxed it.  Deeks certainly does not rebut the position of Tams and Ruys, and none of the commenters here have done so, either — they simply rely on some amorphous pre-Charter right of self-defense that they believe somehow trumps all of the post-Charter state practice and opinio juris that is contrary to the unwilling and unable standard.

  28. No, Kevin, I did not distort your position at all.  I revealed its fundamental flaw.  You twice, in this comment thread, conflated the jus ad bellum and jus in bello by arguing that the absence of international law governing the conduct of hostilities (jus in bello) between states and non-state actors not entitled to (or recognized as having) “belligerent” status somehow negates the existence of a state’s inherent right of self defense to use force (jus ad bellum) against attacks by non-state actors not entitled to “belligerent” status.  I pointed out that the jus in bello had very limited application in the era when the concept of nation-state self defense was recognized and developed.

    I further debunked your obviously fallacious claim that there was an “era in which international law had nothing to say about non-state actors not recognized as belligerents” by noting that this alleged era had something to say about pirates and piracy.  That claim is also belied by other international law evident in 18th and 19th century commentary that I earlier discussed, contrary to your claim that I had offered “nothing” or “literally nothing” to support my comments or arguments.

    And no, Kevin, I have not here argued that “law of neutrality” supports the unwilling and unable thesis in this context, or that it is “solely a creature of the jus in bello” — whatever that could possibly mean.  It is you who either completely refuses to understand, or intentionally distorts, my comments and argumet.  I have suggested that there is a fundamental, natural law principle evident in the writings of serious scholars/legal philosophers that should be considered — in conjunction with state practice before, after, and including that of 1949 to 2001 — when interpreting Article 51’s “inherent right” of self defense, a principle which underlies the neutrality law of international armed conflict and provides general support for the “unwilling and unable” thesis.  This principle is articulated by Vattel (and Grotius), and expounded/explained by Lee, Beliia and Clark among others.  Read them, please, before mischaracterizing my arguments again.

  29. It is staggeringly obvious to anyone who cares to read what I’ve written that I have not conflated the jus ad bellum in the jus in bello.  I have referred solely to the rules on the use of force, whether in terms of the law of neutrality, the UN Charter’s prohibition on the use of force, or post-Charter state practice.  Indeed, you are the only person who has mentioned “conduct of hostilities” in this thread.

    As for piracy “debunking” my argument — good luck arguing that the right of “self-defense” against pirates, NSAs who acted on the high seas (hence the need for, and origins of, universal jurisdiction), somehow justifies violating the sovereignty of states who are unwilling or unable to deal with NSAs who operate on their territory.

    This will be my final comment on this thread.

  30. Well, then, it must be your preoccupation with neutrality law that causes you to be unable to fully comprehend my comments.  Whatever is “staggeringly obvious” to those who care to read what you have written on neutrality law is not so obvious to those of us reading your (edited) comments to this post (yes – I noticed).  

    I am not discussing neutrality law simpliciter, as you apparently are and seem to assume I am.  Anyone who cares to carefully read what I have written in these comments should understand that I am discussing broader, natural law principles.  If they also understand that international law necessarily permitted the natural law right of self defense against both state and non-state actors in the era in which the right of self defense was recognized and developed (i.e. well before the concept of nation-state sovereignty spanned the globe — meaning that there were a plethora of non-“state” actors), then they also understand the absurdity of your exceedingly narrow neutrality argument attempting to negate that right.  (Additionally, my point about piracy only responded to your now-edited comment about the complete absence of international law regulating non-state actors, a wise change on your part.)

    Your assertion that “[i]nternational law in which the inherent right [to self defense] developed regulated only wars between states (including insurgencies recognized as belligerencies)” is true only as regards neutrality law simpliciter AND the jus in bello.  Because I was obviously not arguing neutrailty law simpliciter, I thought you must have made that assertion in the jus in bello context.  My apologies if I misunderstood your rather inartful (and now edited) argument.

  31. Response…
    Interesting disagreements.  There was a great deal of pre-Charter practice of self-defense against non-state actor armed attacks — see may article for just a few (like the famous Caroline incident where the U.K. and the U.S. agreed that some forms of self-defense involving some measures would be permissible, but disagreed regarding the necessity for the exact measure used under the circ.) and see the extensive list of textwriters on point.
    NewStream dream: always useful to look at the exact language agreed to in a treaty insead of professorial theory!  You are correct that there are only three types of uses of force that are expressly covered — still, interesting choice points exist for realistic and policy-serving interpretation, e.g., as you mention, what is “against” and given the various purposes of the Charter (e.g., in the preamble and arts. 1 and 55) what weight should be given to what purpose when balancing such and others in a particular context?
    Ben: if the responsive force is directed merely at the NSA that is engaging in the armed attacks, it is not a use of responsive for agaist the state as such and permissible measures of self-defense have been consented to in advance by all members of the U.N. Charter.

  32. Those generally here (coudl not resist): A natural right of self-defense may lead to a natural wrong of self-defense. 

    Jordan: Thanks for the explanation though the “as such” leaves some space for debate that I tend to resist.

    Best,
    Ben

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