The "Unwilling or Unable State" as a Challenge to International Law (UoU project)
About the project:
Some states justify military actions against nonstate actors conducting transboundary attacks by claiming that ‘"[s]tates must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence […] when […] the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks" (Samantha Powers, 2014). It is highly controversial whether the standard of “unwilling or unable” (= UoU) is legally established. However, the notion of UoU is not confined to the debate on the right to self-defence: It forms, for example, an integral part of the complementarity regime of the International Criminal Court, permeates the debate on the “Responsibility to Protect” and surfaces within the refugee protection regime.
This project is dedicated to a comprehensive analysis of UoU in international law analysing it from a "micro", "macro" as well as "meta perspective". On the mirco-level it assesses whether UoU has materialized as a legally established standard guiding the operation of the right to self-defence especially since 9/11 and the military campaign of the Global Coalition against Deash in Syria and determines what its substance, function and characteristics are. On the macro-level it identifies other issue areas in which UoU as a notion is present, analyses its operation within these and examines whether its major features can be reconstructed as general principles of law or structural principles of international law.
Looking at UoU from a meta-perspective the project turns to the problem of the anthropomorphic state persona that displays a "willingness" and "ability" as a general theme of international legal scholarship. Furthermore it identifies continuities to colonial legal thought and turns to a critical analysis of the concept of a “forfeiture of sovereignty” that plays a prominent role in the current debate on the use of force regime. Concomitantly, the project analyses the interrelatedness of the (in)capacity of states and their legal obligations – hence the relation between the “can” and the “ought” – in international law.
Finally, the project reflects on UoU as a condition for the exercise of the right self-defence in nonstate actor constellations from a de lege ferenda perspective in light of the results that the overall analysis has engendered.
In addressing these different problem layers this project goes beyond a purely legal perspective and makes use of insights from philosophy and the social sciences, especially theories of international relations, as heuristic and auxiliary means.
Postdoctoral Researcher (Habilitation)
Ole Bäßmann, Fabian Eichberger, Anna Kampfmann, Cora Masche, Eva Rom (student assistants)
Right to Self-Defense, Attribution and the Non-State Actor – Birth of the “Unable or Unwilling” Standard?. In: SSRN, 2015.
Right to Self-Defense, Attribution and the Non-State Actor – Birth of the “Unable or Unwilling” Standard?
In: ZaöRV 3, 455-501 (2015).
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).
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,
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).
Legitimized Self-Defense - Quo Vadis Security Council? .
In: EJIL talk! 1 (2015).
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).
Der "Schweigende Staat" und die Dynamik des Gewaltverbots – "Normative Volatilität" und "Legislative Verantwortung".
In: DÖV 3, 85-96 (2018).
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)