08 Oct Eric Posner Rejects the “Unwilling or Unable” Test!
Julian beat me to Eric Posner’s new Slate article on the legality of drone strikes. I don’t agree with everything in it, but I think it’s notable that Posner — echoing his sometime co-author Jack Goldsmith — rejects the idea that international law permits self-defense against a non-state actor whenever a state is “unable or unwilling” to prevent the NSA from using its territory as a base for attacks. That rejection emerges clearly in the following passages:
The U.N. Charter permits countries to use military force abroad only with the approval of the U.N. Security Council, in self-defense, or with the permission of the country in which military force is to be used. The U.N. Security Council never authorized the drone war in Pakistan. Self-defense, traditionally defined to mean the use of force against an “imminent” armed attack by a nation-state, does not apply either, because no one thinks that Pakistan plans to invade the United States. That leaves consent as the only possible legal theory.
In other cases, including current drone operations in Pakistan, the United States has invoked a new idea of the “unable or unwilling” country, one that outside powers can invade because that country cannot prevent terrorists located on its territory from launching attacks across its borders.
The “coerced consent” doctrine, the “unable and unwilling” doctrine, and the exception for humanitarian intervention all whittle away at whatever part of the law on United Nations use of force blocks U.S. goals. If the United States ever decides to invade Iran in order to prevent it from acquiring nuclear weapons, expect a new doctrine to take shape, perhaps one that emphasizes the unique dangers of nuclear weapons and Iran’s declared hostility toward a nearby country.
I couldn’t agree more with Posner’s rejection of the “unwilling or unable” test. I’ve been watching with equal parts bemusement and concern as that standard spreads in the United States — with little or no effort on the part of those who defend it, of course, to identify the (non-US) opinio juris and state practice that ostensibly support it. The “unwilling or unable” test has even found its way into the Stanford/NYU report on drone strikes in Pakistan, which is otherwise so critical of US policy. Here is one of its statements about the jus ad bellum:
Further, it must be shown that the host state is “unwilling or unable to take [the appropriate steps against the non-state group].” Pakistan has at times failed to act decisively against non-state groups, raising questions about its ability and willingness to take necessary steps.
The quoted language, not surprisingly, is from Ashley Deeks’ article on the “unwilling or unable” test — an article that, as I have pointed out before, not only fails to establish that the test has achieved customary status, but actually admits (in a footnote) that it has not done so:
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 footnote, of course, is never mentioned in articles and reports that uncritically adopt the “unwilling or unable” test — thereby further facilitating its spread. I’d like to think that Posner’s rejection of the test may help stem the tide. Unfortunately, as Posner himself explains, nothing — especially not international law — gets in the way of legal theories that enhance the US’s ability to use force abroad.