Dealing With Non-State Actors In International Law: The “Unwilling And Unable Doctrine”
By Yagnesh Sharma and Pranav Agarwal
The prohibition on the use of force by states under Article 2(4) of the United Nations Charter (UNC) and customary international law (CIL) is regarded as a non-derogable, peremptory norm of international law, with only three exceptions, one of which is self-defense. A state-centric paradigm on the use of force predominates the international legal framework, but in recent years non-state actors (NSAs) such as terrorist groups have reached a sophistication level such that they can inflict tremendous damage on states. The question arises whether a victim state has the right to use defensive force against an armed attack perpetrated by NSAs from the territory of another state (host state).
An answer is in the “Unwilling and Unable Doctrine,” which posits that a victim state has the right to engage in lawful extra-territorial self defense when the host state is unwilling and/or unable to mitigate or supress the threat posed by domestic NSAs. While this circumvents the need to obtain the host state’s consent, it can threaten the international order if there is not strict confinement of its usage. Moreover, it has not acquired customary status due to inconsistent state practice. Establishing conditions to lawfully trigger the use of defensive force could supply some legal clarity to this doctrine.
One issue is the “attributability’” requirement in the state-centric paradigm, which states that the use of defensive force is restricted to armed attacks attributable to states. While its aim is to protect the sovereignty and territorial integrity of states, the difficulty posed by an exclusively attribution-based approach is that it leaves the national security of states susceptible to threats from NSAs, especially by unattributable attacks, without a lawful means of defense. In fact, this allows NSAs to use the host states’ sovereignty as a shield to protect themselves. Even if the NSAs are the sole target of defensive force, it still amounts to a violation of the territorial integrity and sovereignty of the host state.
The usage of the “Unwilling and Unable” doctrine by states can be divided into two phases. In the pre 9/11 era, the UN adopted an approach that was unsupportive towards international intervention. This paradigm was altered by the attacks of 9/11, when the Security Council passed resolutions 1368 and 1373, which were seen as de facto authorization for the right to extra-territorial self defense against NSAs. The result of these resolutions was the ‘War on Terror.’ Nonetheless, no operative or otherwise legal invocation of the right to extra-territorial self defense against NSAs has been made. The lack of legal authority, however, has not prevented the western world from intervening in states like Iraq, Syria, and Libya.
Judging by the absence of affirmative mention in any judicial interpretation of the International Court of Justice, treaties, or CIL, the “Unwilling and Unable” standard appears to be alien to international law. The general reluctance of states to acknowledge this doctrine appears to be in line with its potential to wreak havoc on the international order, especially if allowed to be leniently invoked.
Thus, in the absence of the strict circumscription of this doctrine through provisional clarity, it is doubtful that it will be accepted by the international community. For instance, there is debate as to whether a host state must be both unwilling and unable (conjunctive reading) or either unwilling or unable (disjunctive reading), to trigger extra-territorial self defense. Nevertheless, a carefully circumscribed doctrine can act as a gateway to resolving the conundrum of dealing with NSAs in international law.
The substantive determinacy of this doctrine presents a challenge. The successful invocation of this doctrine (and derivatively of the right to extra-territorial self defense against NSAs) could be made conditional on the following five guidelines, drawing upon those predicated by Deeks and Williams. These would sufficiently confine its application, while retaining the strategic purpose:
First, the invocation of this doctrine is to be in accordance with the standard prerequisites of Article 51, UNC, which provides member states with the right to individual or collective self defense against an armed attack, and corresponding CIL, not as an exception to them. Second, the victim state invoking the doctrine must fulfill the burden of proving the elements of self defense, unwillingness, and inability. Third, a disjunctive reading (i.e. unwilling or unable) is to be preferred. This is because requiring the fulfillment of both elements (under a conjunctive reading) is likely to be time-consuming and may adversely impact the potency of any defensive force by a host state against an ongoing armed attack. Fourth, inability of the host state must be established primarily based on indicators such as: fulfillment of due diligence obligations by the host state to prevent the use of its territory for subversive activities by NSAs; a pattern of frequent border conflicts with NSAs from the territory of the host state; response to prior subversive activities of NSAs by the host state, including- criminalization of conduct, detailed investigations, detentions, prosecutions and extraditions; the international reputation of the host state in terms of general compliance with international law and UN obligations. This is because it is unlikely that the victim state would find an explicit statement of “unwillingness” from the host state. Fifth, deficient resources to effectively deal with NSAs may also be representative of the “inability” of host states. In such a scenario, the host state must request assistance, or be obliged to accept any international assistance offered to it. If the host state fails to cooperate and accept such assistance, determination as to “unwillingness” may be made.
For over fifty years, this doctrine has been used inconsistently as a shield to justify international boundary transgressions, without any concrete legal backing. Therefore, it is imperative that the “Unwilling and Unable” doctrine find its basis in international law in order to acquire legitimacy and ensure the global security of states.
Pranav Agarwal is a second year undergraduate student at Rajiv Gandhi National University of Law, Punjab. His research interests include Public International Law and Constitutional Law. He can be reached at: pranavagarwal@rgnul.ac.in.
Yagnesh Sharma is a second year undergraduate student at Maharashtra National Law University, Mumbai. His research interests include Public International Law and Criminal Law. He can be reached at: yagneshsharma@mnlumumbai.edu.in.
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