Jack Goldsmith’s Accurate Description of the “Unwilling or Unable” Test

by Kevin Jon Heller

Jack Goldsmith has an editorial today at Foreign Policy defending the legality of drone strikes. Readers will not be surprised to learn I disagree with his assessment, but exploring our differences is not the point of this post. Instead, I want to acknowledge the precision with which he describes the “unwilling or unable” test for self-defense against a non-state actor (emphasis mine):

There are reports that Yemen consented to the strike on Awlaki. But even if it did not, the strike would still have been consistent with the Charter to the extent that Yemen was “unwilling or unable” to suppress the threat he posed. This standard is not settled in international law, but it is sufficiently grounded in law and practice that no American president charged with keeping the country safe could refuse to exercise international self-defense rights when presented with a concrete security threat in this situation. The “unwilling or unable” standard was almost certainly the one the United States relied on in the Osama bin Laden raid inside Pakistan.

This is a refreshing statement.  As I have noted before, although state practice and opinio juris supporting the “unwilling or unable” test has grown since 9/11 — and may well continue to grow in the future — it is far too early to conclude that the test has crystallized as a new norm of customary international law.  So Goldsmith’s statement is spot-on: the “unwilling or unable” test may represent the U.S. view of self-defence under the UN Charter, but it does not (yet) represent the view of the international community.  I hope other scholars will be as careful in the future.


4 Responses

  1. What Jack Goldsmith did not explain to us is the following:
    Imagine that U.S. sends a drone and kills my family, claiming that my family was a concrete security threat to U.S. What happens if I’m not convinced by the U.S.-legal argument? Where can I sue U.S.? The El-Masri case proves that I cannot sue U.S. in U.S. courts. The Germany v. Italy case proves that I cannot sue U.S. in the state where U.S. killed my family. And there is no International Court of Human Rights – especially because the U.S. rejected the idea when Australia fought for it, for five years in a row.

    Now, if there is no court where I can sue U.S. the whole Goldsmithian argument can be reduced to the following analogy: it is like saying that Johnny may kill Anton – whenever Johnny feels like – but there is no problem in the fact that Anton cannot sue Johnny, nor is Anton allowed to kill Johnny.

    It seems to me that Jack Goldsmith should take an argumentation workshop as soon as possible.

  2. Response…
    Certainly is not a rule of customary international law that limits the inherent right of self-defense under Article 51 of the UN Chater against non-state actors in case of their armed attack or ongoing process of armed attacks.

  3. Rule or standard?  Standard is it the same as soft law like an OECD guideline or stronger than that but not quite a rule?

    I know the US has asserted it and there is mention of it in a report of I believe Philip Alston to the UN and a couple of examples given in Ashley Deeks article with sparse citing to state actions or commenters.  The suggestion is that this is enough to create even a standard. 

    How strong must a standard be to provide cover for an action.  If it is not a limit and it is not a rule but a standard – what is the force of a standard?  Is there force in a standard?

    Is it even a standar or merely an argument of justification to encourage acquiescence for the act by both those other than the state in which the attack is done and the state in which the attack is done.



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