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  • Faiz Uddin Ahmad

Assessing the legality of the Unwilling or Unable Doctrine

This post has been authored by Faiz Uddin Ahmad, a second year student at the Rajiv Gandhi National University of Law, Punjabpursuing B.A., LL.B. (Hons.) course.


INTRODUCTION AND DEVELOPMENT


The Unable or Unwilling Test stems from the broader subject of the States’ Right of Individual and Collective Self Defence by the virtue of Article 51 of the UN Charter and Customary International Law.


The Unwilling or Unable Doctrine is “the right of a victim state to engage in extraterritorial self-defence where the host is either unwilling or unable to take measures to mitigate the threat posed by domestic non-state actors, thereby circumventing the need to obtain consent from the host state”. While there are different species of ‘Self Defence’ in International Law, that discussion is out of the purview of this article. The main objective of this article is to assess the soundness of the Unable or Unwilling Doctrine under International law.


This Doctrine precludes the requirement of the host state’s consent when another state violates its territorial integrity. The reason for this is simple, host states generally are opposed to the violation of their territorial integrity at the hand of a foreign state. By employing this doctrine, states claim impunity from International law obligations prohibiting the use of force. Naturally, this doctrine is a subject of debate among scholars. It is not unreasonable to state that the benefits of this doctrine have disproportionately accrued to selective states while states against whom this doctrine is invoked stand in its opposition.


While it is argued that the earliest invocation of this doctrine was made by Israel in 1976, others predate its invocation to 1970, during the Vietnam war. The Nixon Administration reversed the restricted policy of self-defence used by the previous Johnson administration. It adopted a policy that made self-defence permissible whenever the neutral state “cannot or will not” prevent the unneutral use of its territory . However, it was in the aftermath of the 9/11 attacks when the use of this doctrine became widespread.


Assessing the cases on the legality of the Unable or Unwilling Doctrine


The Opponent’s case


The legality of this doctrine is an issue of contention among various scholars of International law. Since the doctrine is exercised under the States’ right of Individual and Collective self-defence, an exploration of the stipulations of Article 51 of the UN Charter is imperative. The language reads as: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member…. A literalist and restrictive interpretation of Art. 51 leaves little room for justifying the doctrine. The following section will explore why.


What classifies as ‘Armed Attack’?


The NicaraguaJudgment defines armed attack, it goes as, … “an armed attack must be understood as including not merely action by regular armed forces across an international border, but also the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein”.


Moreover, in the Armed Activitiescase, the ICJ, while assessing the activities of non-state actors in Uganda, held that since the activities of non-state actors could not be attributed to the Democratic Republic of Congo, Uganda could not invoke the right of self-defence for the reason that no armed attack occurred.


This clarifies that an armed attack needs to be either committed by a state or be attributable to a state. In the absence of such a case, an armed attack does not occur. The use of “if” in the language of Article 51 entails that an Armed Attack is a necessary pre-condition to the exercise of a right to Self-Defence. As a natural consequence, the use of such an interpretation of Art. 51 means that the unwilling or unable doctrine is not legally sound under International law because it doesn’t justify the requirement under Article 51.


Apart from that, the Unwilling or Unable Doctrine has no mention in ICJ Judgments, UN Charter, and Charter negotiation history.

As a consequence of these judgments and the language of the UN Charter, the unwilling or unable doctrine fails to uphold the criteria to be regarded as a reason for the legitimate use of the inherent right of self-defence.


The Proponent's case


The Proponents of the doctrine use the ‘Interactional law’ approach in modern-day jurisprudence to suggest a 'norm change'. This framework posits that all legal norms are embedded in, and must be broadly in line with, social norms that arise from the practices and understandings of the society in which they operate. The development that seeks to change the existing rule of a restrictive interpretation of Article 51 is the 9/11 attack perpetrated by Al Qaeda, a globally recognised terrorist organisation (a non-state actor). What followed could suggest a norm change.


Operation Enduring Freedom against the non-state actor followed the attacks. It was authorised by the Security Council by virtue of S.C. Resolutions 1368 and 1373. Perambulatory clauses of both Resolutions reaffirm a state’s inherent right of individual and collective self-defence. It is to be noted that the armed attacks carried out by Al Qaeda was not attributable to Afghanistan or its de facto Taliban government. Even though the armed attacks were carried out by a non-attributable non-state actor, Operation Enduring Freedom was authorised without the consent of the host state.


To bypass the observations held by the ICJ on the subject the proponents argue on judicial economy. They claim that the Court’s judgments are not generally applicable statements of law, but rather as determinations made about (and constrained by) very particular factual contexts and the submissions of the parties. Moreover, these judgments are based on incidents where a State uses defensive force against the state from whose territory the NSAs operate. No judgment is based on an incident where a state has used a defensive force against an NSA alone. If this contention is accepted, it nullifies the Opponent’s case on the state-centric definition of Armed Attack.


It has also been argued that modern weaponry has made it increasingly difficult to sustain the claim that article 51 has restricted the right to self-defence. Realistically speaking, States cannot wait for Security Council authorisation or host state’s consent where the timing and intelligence are crucial in preventing an attack on their territory or against their citizens. In such a case, a state is left with no choice but to invoke the doctrine to target non-state actors abroad.


Does the Unable or Unwilling Doctrine constitute a legitimate principle of International Law?


Since the doctrine is not mentioned in any Treaty and is relatively new, the only way it can acquire legitimacy is by satisfying the criteria of Customary International Law. The question therefore is, do state practice and Opinion Juris reflect the doctrine? State support for the unwilling or unable standard is much weaker than is often asserted by government officials and commentators. The purported new rule is supported without caveat by only five States (USA, Australia, Israel, Turkey, and UK). The doctrine cannot be classified as Customary International Law due to the fact that there has been explicit rejection of the doctrine by various states. Due to the lack of universal acceptance and explicit rejection, only few would attempt to classify this doctrine to form part of Customary International Law.


Much of the support of the doctrine is based on the writings of scholars. This may or may not qualify as a subsidiary source of International law. While on the other hand, ICJ judgments (not interpreted in judicial economy) prove to be major impediments for the doctrine to be accepted. Needless to say, only a few states explicitly invoke and follow this doctrine to justify the violation of another state’s territorial integrity. States have also explicitly rejected this doctrine. The opponent’s case thereby seems stronger in light of all the evidence in favour.

Therefore, it is observed that this doctrine does not qualify as a legitimate principle of International Law.


Conclusion


​The Unable or Unwilling doctrine is a source of contention among states, jurists, and scholars. Being relatively new, the legality of this doctrine is hotly debated albeit the fact that some customs don’t take a long time to be translated into Customary International Law.


The Proponents of this doctrine largely base their case on an evolving definition of armed attack thereby invoking the Right to Self Defence against non-state actors. They argue on the judicial economy to discredit ICJ decisions on the Use of Force and non-state actors. Since this doctrine has never been explicitly rejected, the proponents use some room to justify its legality.


The Opponents of this doctrine, on the other hand, invoke ICJ judgments and a literal interpretation of Article 51 to claim that the presence of "if” before the mention of armed attack means that State attributable Armed Attack should necessarily occur for the invocation of a state’s right to self-defence.


Realistically, powerful states have and will continue to use this doctrine with near impunity in the absence of a practical mechanism to hold a state responsible. Even though the legal grounds of this doctrine are flimsy at best, its exercise will continue since its application precludes a state to perform its obligations under the international framework.

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