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