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Search: unwilling or unable

15 Jun

...face of a U.S. Article 51 self-defense claim insofar as Yemen is unable or unwilling to use its authority to address the threat posed by AQAP itself. So long as one accepts that such unable/unwilling arguments can be made, the Yemen scenario seems like a very plausible place to invoke it. If that’s right, then DOD would not face an Article 2(4) hurdle in acting without Yemen’s consent. Could it be that there are facts available internally that make the unable/unwilling argument implausible as to Yemen after all? I’m skeptical....
15.06.11 | |

26 Nov

...administration’s legal position regarding the legality of the proposed strikes under international law. Unsurprisingly, the argument relies on the fact that the Syria government is unwilling or unable to stop the ISIS threat. The following excerpt is taken from a longer document released by Cameron and sent to the British Parliament’s Foreign Affairs Committee. Here is the critical section dealing with international law: There is now a UN Security Council Resolution. Resolution 2249 (of 20 November 2015) has now made a clear and unanimous determination that ISIL “constitutes a global...
26.11.15 | |

07 Jun

...case would be inadmissible under Article 17 where two requirements are met. Firstly, Israel needs to demonstrate the case is being actively investigated – the domestic proceedings must involve actual investigative steps against the individual for substantially the same conduct (the “same case/same conduct” test). Secondly, the ICC must refuse to proceed unless Israel is found to be “unwilling or unable genuinely” to carry out the investigation or prosecution. In determining the second requirement, one of the three forms of “unwillingness” under Article 17(2) is: (a) The proceedings were or...
07.06.24 | and |

24 May

...the state in question is active with regard to the case, the OTP must defer to the national proceeding unless “the State is unwilling or unable genuinely to carry out the investigation or prosecution.” Only if the Court finds that the state is either unwilling or unable can it continue its investigation. Activity The Appeals Chamber defined what it means for a state to be active with regard to a case in the Kenya Appeal Judgment. Here is the key paragraph (emphasis mine): 39. In contrast, article 19 of the...
24.05.24 | |

12 May

...the territory of a Latin American state in alleged self-defense. This happened, in one way or another, during the Texan Rebellion of 1836; the Blockade of Venezuela of 1901; the Punitive Expedition of 1916; and the Rio Treaty negotiations of 1947, just to name a few examples. This debate has recently exploded into the world stage under the banner of the US’s War on Terror, particularly in the Middle East. This so-called “unwilling or unable” test has featured prominently in academic discussions, but frequently detached from the Latin American history...
12.05.20 | |

12 Jan

...group from using its territory to launch armed attacks. In her words, the attacking state must “either act with the consent of the territorial state or on the grounds that the territorial state is unwilling or unable to take action to remove the threat posed by the non-state actor and repel future attacks.” Blank offers precisely one citation for the “unwilling or unable” test, and that citation will not surprise you: Ashley Deeks’ forthcoming article in the Virginia Journal of International Law. As I have pointed out before, Deeks not...
12.01.12 | |

15 Jan

...possible does not seem to apply to the post-9/11 invasion of Afghanistan or Iraq.) However, I do not see the case of the Caroline as having anything to do with permitting self-defense "where the harboring state is unwilling or unable to take action to quell the attacks." To my knowledge, the U.S. did not acknowledge the U.K. (Canada)'s right to invade U.S. territory because the U.S. was unwilling or unable to quell attacks of U.S.-based insurgents. Perhaps Mr. Bellinger can provide more information on why he believes the Caroline case...
15.01.07 | |

15 May

...Qaeda, or are other organizations such as AQAP properly part of that NIAC? Do the strikes comport with military necessity and proportionality? What sort of positive identification procedures are required before such strikes take place? Is some form of independent post-strike review required? Is host state permission required? If not, (in the self-defense paradigm) has the host state shown itself to be unwilling and/or unable to apprehend the targeted individuals? What is the standard that should be used to make the unwilling/unable determination? All of these are legitimate questions that...
15.05.11 | |

06 May

...attack (i.e., whether it would be immediate). In determining whether it is necessary to use force against a non-state actor operating in another state’s territory, the victim state must consider not just whether the attack was of a type that would require force in response, but also the conditions within the state from which the non-state actor launched the attacks. In this latter evaluation, states, absent consent, employ the “unwilling or unable” test to assess whether the territorial state is prepared to suppress the threat. If the territorial state is...
06.05.11 | |

29 May

...for Extraterritorial Self-Defense,” Ashley Deeks (Columbia Law School, incoming Associate Professor of Law, University of Virginia School of Law) offers the first sustained descriptive and normative analysis of the “unwilling or unable” test in international law. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state’s inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test’s deep roots in neutrality law while simultaneously illustrating the lack of guidance about what inquiries a victim...
29.05.12 | |

15 Sep

...it works in theory. Reality is somewhat different. In practice, any state relying on the “unable or unwilling” standard (as the United States did in Pakistan to support the bin Laden raid) will have no way of knowing whether the target state will see things the same way. By definition a state relying on the “unable or unwilling” standard lacks permission from the host/target state to use force on its territory. This is why I said that the US would act at its own peril in Syria. Any state taking...
15.09.14 | |

18 Mar

if they want to avoid being branded “unwilling or unable.” A strong parallel can be detected between this transformative process and the pressure exerted upon peripheral states during the nineteenth century to introduce reforms that would render them “civilized” and, hence, equal to Western states. Ntina makes a number of points in the essay that I’ve tried to make over the years — but she does so far better than I ever have or could. For anyone interested in the “unwilling or unable” doctrine, her essay is a must read....
18.03.16 | |