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The "Unwilling or Unable State" as a Challenge to International Law

The notion of the “unwilling or unable state“ has recently lived through a renaissance in international law and international relations discourse. This revival has been initiated by the increasing significance of threats stemming from non-state actors acting from the territory of states that fail to prevent their terrorist endeavors. This term is however by no means a novelty. It has been a paradigm of US foreign policy for a long time and numerous other states have appropriated it rising to the challenge of terrorist attacks. Beyond the context of self-defense it has been utilized as an argumentative pattern to justify multilateral operations without UN mandate within states which fail to prevent grave human rights violations within their territory. In contrast to the frequent employment of this conception stands its poor incorporation into written legal sources. The only international treaty using the exact wording “unwilling or unable” with regard to states is the Rome Statute of the International Criminal Court (Art. 17;  37 ILM (1998), 999). A similar terminology is echoed in Art. 1 (A) (2) of the 1951 Convention Relating to the Status of Refugees (189 UNTS 137). Beyond that it is merely found in soft law documents like the 2001 Report of the International Commission on Intervention and State Sovereignty (“The Responsibility to Protect”), the 2004 Report of the UN Secretary-General’s High Penal on Threats, Challenges and Change (“A More Secure World: Our Shared Responsibility”) as well as various reports of the Secretary-General (In Larger Freedom, 2005; Report on Implementing the Responsibility to Protect, 2009) – in all cases addressing questions of the so-called “Responsibility to Protect” (R2P).

Despite recent proclamations of an emerging legal standard of “unwilling or unable states” in different contexts I submit that international law has since its foundation addressed the “unwillingness” and “incapacity” of states normatively. This is the fundamental hypothesis of my project. States that are unwilling to conform to international law or lack the capacity to fulfil certain positive obligations challenge international law. The international legal order is built around the concept of an abstract entity “state”. This entity is sovereign in juridical terms, equal with other states, a bearer of international rights and duties and in general assumed to be willing and able to comply with international obligations. States, however, have always violated international norms. Furthermore the ideal of a state that unites international legal sovereignty with effective statehood, hence the doctrinal foundation of international law, has yet to be achieved in reality (Krasner, 1999; 2013). This cleavage between the “world as it is” and its legal construction stands at the heart of “unwilling or unable states” that disrupt categories of international law. Simultaneously international law is a tool to shape social reality. It therefore cannot ignore the empirical truth of states acting in contradiction to its normative postulates as well as states with deficient structures of internal authority that prevent them from compliance with its international norms. And international law has never done so. However, to date no comprehensive account and evaluation of these specific rules can be found in scholarship, which leaves this phenomenon insufficiently analyzed. Furthermore it has yet to be examined whether specific but cross-cutting principles with regard to the “unwilling and unable state” can be deduced from the existing international legal norms.

My research project is intended to fill this gap. I will analyze whether and how rules of international law address questions of a state’s “unwillingness” and “incapacity” in different substantive contexts. My objective will be to determine whether a general overarching principle surfaces or, on the contrary, a fragmented landscape manifests. Simultaneously, I will disentangle the notion of the “unwilling or unable state” and its usage within the current debate thereby unraveling the motivations and agendas of the relevant discourse participants. Based on my findings I will go beyond a mere de lege lata perspective, critically evaluate the existing rules and identify considerations which should be included in policy decisions. My analytical perspective will be internal to the system of law, however I will also make use of insights from philosophy and predominantly the social sciences, especially theories of international relations, as heuristic and auxiliary means.

This project is urgently needed for several reasons:
First of all, a comprehensive account of the “unwilling or unable state” cannot currently be found in legal or political scholarship. However, a broad consensus exists that states that are unwilling to or incapable of fulfilling obligations of international law pose the most ardent threat to the stability of the international legal order and sustainable peace. Understanding the “law as it stands” is an indispensable requirement for evaluating its ability to serve its main purpose – the facilitation of peace – in light of the social phenomenon of a state’s unwillingness and incapacity. Scholarship has so far concentrated on “unwilling or unable states” as a mere problem of the use of force. However, these phenomena permeate various other substantive areas of international law. I posit that only a comprehensive approach will yield conclusions regarding the existence or non-existence of general principles governing unwillingness and inability. If certain coherent principles or rules surfaced, they could be employed in areas where the normative schemes to deal with ”unwilling or unable states” seem to be underdeveloped (e. g. use of force) compared to others (e. g. environmental law).

Secondly, discussants within the different substantive threads of legal discourse employ the notion of “unwilling or unable” following specific but in most cases obscured objectives. It is mainly utilized to facilitate a change of established international norms protecting state sovereignty. Obviously a frequent usage of notions may induce a subtle and largely unnoticed shift of the law. This might prove dangerous especially when the very foundations of the international legal order are at stake. State stigmatizations like “unwilling or unable” have always been used in legal discourse to pave the way to a relativization of the sovereign equality of states which is the key element of the “Westphalian” legal order. An analysis of the “law as it stands” and its limits will be a first step towards dissecting the present discourse, and unveiling its deficiencies and biases. There is a pressing need for a discourse about the discourse. I propose that arguments actually purporting a change of the law are sold as mere descriptions of the state de lege lata.

Thirdly, I submit that the problem of “unwilling or unable states” is real and urgent and has to be dealt with by law effectively, which otherwise would lose its normative force. But any endeavors to initiate a change of existing rules demand a critical evaluation and have to be based on a rigorous insight into the situation de lege lata. Sensible policy recommendations require the complementation of these legal findings with insights from the social sciences. However, whilst an interdisciplinary view is essential, at the same time it is necessary to uphold the unique features as well as the relative autonomy of law. In this respect my research project shall contribute to the “empowerment” of international law to effectively address the obstacle of non-ideal states.


Habilitandin

Betreuer

Jörn Axel Kämmerer, Anne Peters

Weitere Links

Daimler and Benz Fellowship - The Unwilling or Unable State
Daimler und Benz Stiftung - Stipendienprogramm für Postdoktoranden
Fritz Thyssen Fellowship - The Unwilling or Unable State
Fritz Thyssen Stifung für die Wissenschaftsförderung Post Doctoral Fellowship
Kathleen Fitzpatrick Fellow
Kathleen Fitzpatrick Visiting Fellow 2016, Laureate Research Program in International Law at Melbourne Law School (Civil War and Intervention)