Self-Defence Against Non-State Actors: Reconceptualising the Legality of the ‘Unwilling or Unable’ Test in Light of the Doctrine of Necessity in International Law.

Abstract

The ‘unwilling or unable’ test is a real-world challenge that has the potential to make a mockery of the cornerstone of modern international law in Article 2(4) of the UN Charter. The increasing prevalence of unattributable armed attacks by NSAs provides an opportunity for powerful victim States to expand the notion of the inherent right of self-defence through the ‘unwilling or unable’ test, without any real thorough basis to their reasoning. To complicate matters further, the dangers of State silence in the face of the unwilling or unable justification from primarily powerful Western States seeking to invoke self-defence, may end up playing into the hands of proponents of the ‘unwilling or unable’ test. This potentially contributes to ‘norm entrepreneurship’ and the shaping of international law in their favour through the expansion of self-defence to incorporate the test itself. Despite the uncertainty surrounding the legality of the test, the fact remains that the legitimising of predatory force against primarily weaker host States in the Global South by primarily powerful victim States in the Global North cannot continue and has to be addressed in order to avoid the abuse of the test in the name of self-defence. The principle of necessity provides this foundation and is the key to engaging States in a discourse that seeks to bring the ‘unwilling or unable’ test into greater compliance with the jus ad bellum regime. This paper refines Deeks’ test a decade earlier, through the notion of reasonableness and objectivity under the principle of necessity, and aims to contribute to the debate on the ‘unwilling or unable’ doctrine by clarifying the possible practical application of the test in order to strike as close a balance between the inherent right of self-defence on one hand, and State sovereignty and territorial integrity on the other.

Whether and to what extent does international law allow states to use military force against armed non-state actors on the territory of another state?

“…For instance, in the Armed Activities case, in Separate Opinion, Judge Kooijmans acknowledged that states have the right to self-defence even if the source of armed attack is ANSA. 6 Judge Simma supported this view: «if armed attacks are carried out by irregular forces from such territory against a neighbouring State, these activities are still armed attacks even if they cannot be attributed to the territorial State». 7 Henderson believes that in international law, «limited action in self-defence solely against [non-state actors] was not actually ruled out».…”