A Truly Bizarre Invocation of the “Unwilling or Unable” Test

I haven’t written about the “unwilling or unable” test for self-defence against non-state actors in a while, largely because I’ve said all I have to say about why the test is not part of customary international law. (See my many posts here.) But I would be remiss not to note the strangest invocation of the test I’ve ever seen, which comes courtesy of the United States (of course) in a recently released OLC Opinion defending the domestic legality of the US’s recent invasion of Venezuela. Here is the US’s argument, which comes on page 6 of the Opinion (emphasis mine):

We have not reached a definitive conclusion about how international law would apply to ABSOLUTE RESOLVE. To the contrary, as we have discussed, there are reasons to conclude that, consistent with the United States’ views on international law, [redacted]. Alternatively, there are arguments that Maduro’s refusal to cede power following the most recent election demonstrate that the true representative of the Venezuelan people is unable to control the threat Maduro poses to the United States and its allies in the region. See generally Ashley S. Deeks, “Unable or Unwilling”: Toward a Normative Framework for Extraterritorial Self-Defense, 52 Va. J. Int’l Law 483 (2012) (discussing the development and limitations of the unable and unwilling test);

Essentially, the US is claiming that the invasion of Venezuela was legitimate self-defence because at the time of the invasion the government of Venezuela was led by Edmundo Gonzalez Urrutia, not Nicolas Maduro, and Gonzalez was unable to prevent Maduro from using Venezuelan territory to launch armed attacks against the US.

A more bizarre invocation of the “unwilling or unable” test is difficult to imagine. Maduro was a vicious tyrant, and Gonzalez clearly won the 2024 election. But there is no question that Maduro was in effective control of of Venezuela at the time of the invasion and was thus the Venezuelan head of state. To deem Maduro’s actions the actions of a non-state actor and Gonzalez’s actions — or, more precisely, inactions — as the actions of the Venezuelan government solely in order to justify using force on Venezuelan territory via the “unwilling or unable” test is… well, I don’t really have words for it, only an emoji: 🤡.

What I will say is that the OLC opinion provides a striking illustration of why the “unwilling or unable” test is not only unlawful but also a terrible idea — nothing more than yet another made-up jus ad bellum doctrine designed to allow Western states like the US to commit aggression against Southern states whenever they want. The sooner the doctrine disappears into the dustbin of history, the better.