The "Unwilling or Unable State" as a Challenge to International Law (UoU 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 was 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 Daesh 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 turned to the problem of the anthropomorphic state persona that displays a "willingness" and "ability" as a general theme of international legal scholarship. Furthermore it identified continuities to colonial legal thought and turnes 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 analysed 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 reflected on UoU as a condition for the exercise of the right to self-defence in nonstate actor constellations from a de lege ferenda perspective in light of the results that the overall analysis had engendered.

In addressing these different problem layers the project went beyond a purely legal perspective and made use of insights from philosophy and the social sciences, especially theories of international relations, as heuristic and auxiliary means.