Defending Weak States Against the "Unwilling or Unable" Doctrine of Extra-Territorial Self-Defense
Victim states occasionally use force extra-territorially to target non-state actors that have allegedly attacked the victim state, on the pretext that the host state is “unwilling or unable” (“ineffective”) to act. The international law legality of such force is unclear: state responsibility principles do not hold ineffective states liable, the universe of state practice is small and the International Court of Justice and some scholars deny the permissibility of such force while others disagree. This article argues that, although a right of self-defense in ineffective host states can be desirable in light of contemporary security threats, extant scholarship on the “unwilling or unable” doctrine suffers from blind spots. Not only has debate been almost exclusively doctrinal but scholars, in focusing myopically on the security concerns of victim states vis a vis non-state actors, have paid almost no attention to security vulnerabilities of host states vis a vis victim states. Not only is much of the literature on the “unwilling or unable” doctrine based on the questionable assumption that the determination of host state ineffectiveness should rest with the victim state, but it also fails to recognize two conditions that make erroneous determinations likely. First, host states tend to be weak states, susceptible to coercion and unable to retaliate against misbehavior by more powerful victim states. Second, even if there is a will on the part of the international community to punish erroneous uses of force, since host state ineffectiveness may not be observable, detection of misbehavior becomes difficult. This article argues that any serious analysis of the doctrine must be based on an appreciation of these external conditions and suggests that a right to use force in another state on the vague pretext of ineffectiveness must thus be subject to corresponding constraints. It accordingly proposes an alternate framework: victim states seeking to rely on ineffectiveness as a ground of self-defense should be required to disclose claims of host state ineffectiveness to the Security Council. The weak state is given an opportunity to challenge the claim while the Counter Terrorism Committee can provide empirical information as to that host state’s ability and willingness to comply with anti-terrorism obligations.
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