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The "Unwilling or Unable State" as a Challenge to International Law (UoU project)

About the project:

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.


Postdoctoral Researcher (Habilitation)

Supervisors

Jörn Axel Kämmerer, Anne Peters

Staff member(s):

Ole Bäßmann, Fabian Eichberger, Anna Kampfmann, Eva Rom (student assistants)

Publications

  • Right to Self-Defense, Attribution and the Non-State Actor – Birth of the “Unable or Unwilling” Standard?. In: SSRN, 2015. SSRN
  • Right to Self-Defense, Attribution and the Non-State Actor – Birth of the “Unable or Unwilling” Standard? In: ZaöRV 3, 455-501 (2015). Article
  • Silence within the Process of Normative Change and Evolution of the Prohibition on the Use of Force - Normative Volatility and Legislative Responsibility. In: MPIL Research Paper Series 20, 1-49 (2016). SSRN Publication
  • Der "Schweigende Staat" und die Dynamik des Gewaltverbots – "Normative Volatilität" und "Legislative Verantwortung. In: Pfadabhängigkeit hoheitlicher Ordnungsmodelle, Tagungsband zur 56. Assistententagung Öffentliches Recht. Nomos, Baden-Baden 2016, 267-293. Publisher Announcement
  • Silence within the Process of Normative Change and the Evolution of the Prohibition on the Use of Force: Normative Volatility and Legislative Responsibility. In: Journal on the Use of Force and International Law 4/1, 1-43 (2017). Online Version
  • Legitimized Self-Defense - Quo Vadis Security Council? . In: EJIL talk! 1 (2015). EJIL talk!
  • A Call for a Turn to the Meta- Level of International Law: Silence, the 'Interregnum', and the Conundrum of Ius Cogens. In: ZaöRV/JHIL 2017, 87-90 (77). ZaöRV/HJIL
  • Der "Schweigende Staat" und die Dynamik des Gewaltverbots – "Normative Volatilität" und "Legislative Verantwortung". In: DÖV 3, 85-96 (2018). DÖV

Further Links

The Unwilling or Unable State (Fritz Thyssen Foundation)

Project funded by the Fritz Thyssen Stiftung für die Wissenschaftsförderung (Postdoctoral Fellowship)
Daimler and Benz Fellowship - The Unwilling or Unable State
Project supported by the Postdoctoral Fellowship Program of the Daimler and Benz Foundation
Kathleen Fitzpatrick Fellow
Kathleen Fitzpatrick Visiting Fellow 2018, Laureate Research Program in International Law at Melbourne Law School (Civil War and Intervention)
Global Hauser Fellows Program
Presentation on the Notion "Unwilling or Unable" at the "Deutsches Haus" (NYU)
Presentation at the Melbourne Law School - Laureate Program in International Law