Search: unwilling or unable
15 Dec Ashley Deeks’ Problematic Defense of the “Unwilling or Unable” Test
may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test‟s lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a...13 Dec Do Attacks on ISIS in Syria Justify the “Unwilling or Unable” Test?
ISIS in Syria. So, to recap: the US and UK clearly support the “unwilling or unable” test; Jordan, Bahrain, Qatar, and the UAE are likely basing their willingness to attack ISIS in Syria on Syrian consent; Iraq has a completely opportunistic approach to the “unwilling or unable” test; and France, Denmark, and Belgium seem to reject the test, even if they have not done so explicitly. And yet we are supposed to believe that the “unwilling or unable” test “is starting to seem less controversial and better settled as doctrine”?...17 Feb The Absence of Practice Supporting the “Unwilling or Unable” Test
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 Kevin: Concededly, deciding *when and how* a host state is unwilling or unable...06 Mar The Seemingly Inexorable March of “Unwilling or Unable” Through the Academy
stronger) (e.g. Deeks articulation of substantive and procedural factors) without having to force "unwilling or unable" into a customary rule. Kevin Jon Heller Shahram, I couldn't agree more. Kress and Henriksen's articles are otherwise excellent, and Deeks' article is a fine articulation -- from a normative perspective -- of what unwilling/unable would look like as a test. The problem, as you note, is that they all claim unwilling/unable is lex lata when, in fact, it is lex ferenda. Thomas Welch Great post. Soft law is undermining the development of badly...11 Oct France Fails to Adopt “Unwilling or Unable” in Syria
Last month, Ashley Deeks claimed that France appeared “to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context.” France did indeed attacks ISIS targets in Syria. And it reported those strikes to the Secretary-General of the UN, claiming self-defence under Art. 51 of the UN Charter as a rationale for violating Syria’s sovereignty. But then something funny happened on the way to the Forum: France did not invoke the “unwilling or unable” theory. Here is its Art. 51 letter: Looks like the “broad consensus” in favour...09 Nov The Unwilling Part of “Unwilling or Unable”
force at the rebels in U.S. territory, following rebel attacks, once the British became convinced that the U.S. federal government was unable, and the NY authorities were unable, to take care of the continuing threat. (The dispute between the US and UK was about whether the US was *in fact* unable/unwilling--Webster said the British should have waited longer to let our process play itself out.) All of which is to say that U/U is *not* a means of attributing the "armed attack" to the host state -- a mistake that's...
19 Mar The Earliest Invocation of “Unwilling or Unable”
neutrality, since Cambodia was unwilling or unable to defend its neutral status.” The “unwilling or unable” legal doctrine is now a regular feature of US foreign policy, but to so glibly (and by no means correctly) take the right for granted obscures the fact that in 1970 Stevenson overturned, or at least heavily reinterpreted, the preceding decade of official legal advice on the matter and the policy that was, in part, informed by that advice. “Unwilling or unable” was, to a great extent, invented in 1970 in the context of...08 Nov Leticia & Pancho: The alleged historic precedents for unwilling or unable in Latin America, explored (Part II, Pancho Villa)
...Mexican Republic must not be violated” (emphasis added). These diplomatic exchanges are clear: Mexico argued the US needed Mexican consent to send troops into Mexico. The US, explicitly using the phrase unwilling or unable, felt it had a right to send troops into Mexico. At this point, some might feel inclined to vindicate Deeks’ claim that the Expedition is a 100 year old precedent for the unwilling or unable test. I would argue, however, that things are more complicated than this. Customary international law evolves through breach. An established rule...17 Sep The “Unwilling or Unable” Standard for Self-Defense
clear than ever that they are either unwilling or unable - weakening the nature of that trigger to the attacking state's action, if that trigger actually exists. Best, Ben Kevin Jon Heller To say that Caroline supports the "unwilling and unable" standard is a bit of a stretch. But regardless, fortunately we no longer live in a world in which international law is dictated by powerful states like the US and UK. Jordan Response... No, the point is that there is no "unwilling or unable" limitation of the right to...