The notion of the “unwilling or unable state“ has recently lived through a renaissance in international legal 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 some 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. A similar terminology is echoed the 1951 Refugee Convention. Beyond that it is merely found in soft law documents addressing questions of the so-called “Responsibility to Protect”.
Despite recent proclamations of an emerging legal standard of “unwilling or unable” in different contexts international law has since its foundation addressed the “unwillingness” and “incapacity” of states normatively. However, to date no comprehensive account and evaluation of these specific rules can be found in scholarship. Furthermore it has yet to be examined whether specific but cross-cutting principles with regard to “unwilling or unable” states can be deduced from existing international legal norms.
This research project is intended to fill this gap by finding answers to following guiding questions: What is a state’s (un)willingness? What constitutes its (in)capacity? What are the peculiarities of the notion of “unwilling or unable”, and to what extent does this concept fit into the scheme of the current system of international rules? What legal implications flow from the non-fulfilment of international legal obligations for the “unwilling” state, what for the merely “incapable” state, and which duties and rights of other international legal actors correlate with the non-fulfilment of international obligations? To what extent is the capacity to act normatively interrelated with an obligation to act? To what extent are international legal rules responsive to and address discrepancies in state capacities – on the primary level of the normative command itself, and on the secondary level of state responsibility? Do inconsistencies surface? To what extent are the answers offered by international law in its present state regarding “unwilling” or “unable” states inadequate and/or insufficient?
In answering these questions this project will go beyond a purely legal perspective and make use of insights from philosophy and the social sciences, especially theories of international relations, as heuristic and auxiliary means.
Jörn Axel Kämmerer, Anne Peters
Ole Bäßmann, Fabian Eichberger, Anna Kampfmann, Eva Rom (student assistants)