The Absence of Practice Supporting the “Unwilling or Unable” Test

The Absence of Practice Supporting the “Unwilling or Unable” Test

Regular readers of the blog know that one of my hobbyhorses is the “unwilling or unable” test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable) case in point: my friend Claus Kress, who is one of the world’s best international-law scholars. Here is what he writes in an otherwise-excellent contribution to Just Security about the use of force against ISIL in Syria (emphasis mine):

It therefore follows not only from the right of self-defense’s general requirement of necessity, but primarily from the respect for the sovereignty of the territorial State that the right of self-defense in case of a non-State armed attack is of a subsidiary nature. It presupposes that the territorial State is either unwilling or unable to end the non-State armed attack – or, as it should be added for the sake of completeness, fails to exercise due diligence to that effect. State practice is remarkably consistent with these principles. As Professor Ashley Deeks has demonstrated in a formidable article, the legal claims to a right of collective self-defense in cases of non-State armed attacks have generally included the statement that the territorial State is unwilling or unable to deal with the non-State threat.

In terms of what the “unable or unwilling” test might look like if it represented customary international law, Deeks’s article is indeed excellent. But the article is anything but “formidable” in terms of state practice that supports the test. Indeed, the non-state actor section of the article spans all of two pages (pp. 501-03) — and cites precisely two states that officially endorse “unwilling or unable”: the United Kingdom and the United States. That’s it. And those are the same two states that Claus discusses in his post.

Simply put, there is simply no “consistent practice” that supports the “unwilling or unable” test, and scholars need to be careful not to put states in the “unwilling or unable” camp simply because they are willing to use armed force against a non-state actor. Deeks has been particularly prone to this kind of overinclusiveness, most recently arguing that Jordan, Bahrain, Qatar, the UAE, and Iraq support the “unwilling or unable” test because they have attacked ISIL in Syria — this despite the fact that all five states are members of the Arab League, which has specifically rejected the test in the context of Israel’s attacks on Hezbollah in Lebanon. (Actual opinio juris.)

I have the utmost respect for Claus, and I have no desire to pick on Deeks. But methodological rigor is particularly critical when it comes to doctrines like “unwilling or unable,” because its actual adoption by states would open the floodgates to the extraterritorial (ie, sovereignty-infringing) use of force against non-state actors. There may well come a time when the “unwilling or unable” test reflects customary international law, but that time is not now. Two states do not a customary rule make, however powerful those states may be. And we cannot simply ignore the states in the Global South, however inconvenient powerful states in the Global North may find their views.

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Jordan
Jordan

Yes, “unwilling or unable” is not “the” “test.” Article 51 self-defense against non-state actor armed attacks is permissible when the armed attacks are underway — whether or not the state from which they emanate (if they emanate from the territory of a state) is unwilling or unable. While the armed attack is ongoing, the foreign state is, nonetheless, per se unable. http://ssrn.comabstract=1701992 — and see the extensive list of textwriters, etc. in footnote 3.

Marty Lederman
Marty Lederman

Kevin: Concededly, deciding *when and how* a host state is unwilling or unable to address the threat raises a host of thorny issues — the subject of the bulk of Ashley’s fine article. But I don’t quite understand why you resist the notion that there is an U/U test at all. Doesn’t it follow quite naturally from the basic ad bellum requirements for self-defense? The basic rule under 2(4) is that the threatened state must refrain from using force “against the territorial integrity” of the host state. There’s an exception for self-defense, traditionally defined–a standard that requires, inter alia, that the breach of territorial integrity be necessary and proportionate to the need to prevent further attacks from the host state itself or, as here, from a nonstate group taking sanctuary in that state. If the host state is willing and able to deal with the problem, then the use of force is, virtually by definition, not “necessary.” But if the host state is unwilling or unable, then the use of force is-or at least might be–necessary to stop the threat. (Of course, there might be other reasons why it is not necessary or proportionate, as well–e.g., the attacking group no… Read more »

Tali Kolesov Har-Oz and Ori Pomson

Thank you for this piece. I have couple of questions on methodology. First, is the search for opinio juris actually what is relevant here? It would seem more appropriate to look simply for state practice as a supplementary means of interpretation under article 32 to the VCLT (article 31(3)(b) being irrelevant as it would necessitate practice of UN members) as a means of interpreting the UN Charter (see also page 59 in this piece: http://www.peacepalacelibrary.nl/plinklet/index.php?sid=related&ppn=369836979). In this regard, the current practice of the Arab League states is very pertinent.
Second, indeed the Arab League condemned what it termed Israeli “aggression” against Lebanon. However, from the statements of the Arab League and its member states in the UNSC debates (cited by Ruys), it is actually unclear why they term it aggression. It is very plausible that the reason for the use of the word aggression actually relates to perceived disproportionate use of force (and not the fact that forced is being used following an attack by a non-state actor).

Remy Jorritsma

Would it not appear that practice relevant for interpretation requires it to be undertaken “in the understanding of the parties as to its interpretation”? In other words, mere practice is not sufficient, there needs to be a subjective conviction that such particular practice constitutes what the rule (as interpreted) calls for. See also ILC, Second Report by Special Rapporteur Nolte, Draft Conclusion 6, A/CN.4/671.

On a different note, the importance of the requirement of necessity has already been mentioned. Much of the debate on U&U could be seen through the lens of necessity: is it necessary – as in, last resort, no alternatives – to act in self-defence against the territorial State when it is unwilling or unable (see also Gray’s chapter in Evans’ International Law)? Yet, a distinction between inability and unwillingness is often not made. Unwillingness is one thing, but inability calls for the victim State offering assistance to (and thus requesting consent from) the territorial State. Only when this is rejected the territorial State becomes unwilling. In other words, inability by and of itself should not be seen on par with unwillingness.

Tali Kolesov Har-Oz and Ori Pomson

Remy, the concern of Special Rapporteur Nolte in draft conclusion 6 seems to be focused on what he termed “voluntary practice” beyond what is demanded by the treaty (page 6 to that report). Conversely, when practice would otherwise constitute a violation of the agreement, it seems to be possible to presume the party considers its practice in accordance with that agreement. For instance, this appears to be the position of the ICJ in the Nuclear Weapons advisory opinion (para. 55).

Jordan
Jordan

Marty: Article 51 is not limited to a violation of Article 2(4) in any way (e.g., there is no requirement that a member state engage in the armed attack or have imputed responsibility for such). Additionally, there is a requirement in Article 51 that an armed attack be underway (if an armed attack occurs). See http://ssrn.com/abstract=2402414 Therefore, a mere threat of attack is not the trigger. Once the armed attack is underway, a state from which the armed attack emanates is necessarily “unable” to prevent the attack that is underway. Necessity for a response has been met. With due respect, the nature of the dispute between the UK and the US in the Caroline Incident is set forth in the above click-on. Yes, both were in agreement that once armed attacks by a non-state actor were occurring, there was a right to use measures of self-defense against the non-state actors located within the U.S., but the U.S. pushed for a necessity limitation of the means of response (esp. since the UK could have waited in those days to seize the vessel when it ventured into Canadian waters, etc.). Note the attention to a non-state actor battery firing across the border.

Jordan
Jordan

Tams is absolutely incorrect re: a supposed “effective control” test for attribution, as the click-on in the above reply demonstrates. The ICJ used that test regarding responsibility for law of war violations. The ICJ recognized a “substantial involvement” test for imputation. Also, re: Israel example, Israel had claimed a right of “reprisal,” which the community does not accept. The U.S. 30 min. war against Libya was based on a claim of self-defense against Libya (not a NSA) under a calim of attribution.
Re: the Caroline incident and several others in the 19th Cent., there was no need for attribution — none at all! The UK and US addressed the right of self-defense by an NSA that had been engaged in ongoind armed attacks.

Jordan
Jordan

what I addressed was the statement that “that state had to exercise ‘effective control…,'” “the ‘effective control’ test,” “only terrorist attacks effectively controlled by another state.” This is the wrong test.

Christian Tams

Dear all
interesting debates – reflecting once more how the scope of self-defence continues to be contested. The article from which Kevin quotes above (Tams, Use of Force against Terrorists, EJIL 2009) seeks to provide historical context – which in my view remains essential as we appreciate the current challenges. For those who want to read further, the article is freely available, thanks to the generous EJIL editorial policy — have a look http://www.ejil.org/pdfs/20/2/1793.pdf.

Perhaps I can add that the specific issue debated between Kevin and Jordan (and on which Kevin disagreed with Claus Kress in the initial post) — viz. should self-defence be available against non-State attacks as such? — gave rise to a follow-up between Kimberley Trapp and myself: both pieces are only a few pages long, but if read together, I think they give a useful general picture of the debate: see http://www.ejil.org/pdfs/20/4/1915.pdf (Kimberley) and http://www.ejil.org/pdfs/20/4/1949.pdf (me). With the distance of a few years time, I think the main point to take away from the debate about anti-terrorist self-defence is that no side should claim too much conceptual clarity: we all seem to be muddling through somehow.

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