FICTITIOUS STATES, EFFECTIVE CONTROL, AND THE USE OF FORCE

Brian C. Finucane, 10th Circuit Court of Appeals

Abstract

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the problem is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses in state control have been common throughout history and violent non-state actors have long exploited these voids. This Article examines a number of international incidents from the past two centuries involving the defensive use of force against non-state actors in ungoverned territory.

These incidents reveal that despite a formally state-centric world order, governments have long recognized (if not always acknowledged) the danger posed by fictitious states and non-state actors. As a result there is a well developed customary right of self-defense vis-à-vis these non-state actors. This right to self-defense was already entrenched prior to 9/11 and is not contingent upon the consent of the host state. From state practice and legal claims, the Article draws a set of principles according to which the lawfulness of military actions has historically been assessed. These principles of customary law supplement the formal regime of the U.N. Charter.

The Article draws upon the customary principles of necessity and proportionality to sketch a framework for regulating the use of force against non-state actors. A central contribution of this framework is the delimitation of the battlefield in a conflict with a non-state actor such as Al Qa’ida which operates from the ungoverned spaces of multiple countries.