The
“Unwilling or Unable” Standard for Self-Defense
by
Kevin Jon Heller , September 17th, 2011
One of
the most remarkable aspects of how conservative U.S. scholars approach
international law is their absolute certainty that the American position on
extraordinarily difficult issues is always correct. Consider, for
example, Jack Goldsmith’s articulation
today of when the UN Charter permits the U.S. to use force in
self-defense against non-state actors:
If the
president is authorized to use force against a terrorist group by Congress, and
if the U.N. Charter’s sovereignty
concerns are overcome because
the nation in question is unwilling or
unable to address the group’s threat to the United States, and as long
as the United States complies with jus in bello restrictions on targeting
(distinction, proportionality, etc.), there is no further legal requirement.
Reading
this, one would think it is patently obvious that international law accepts the
“unwilling or unable” standard. Goldsmith does not bother to defend that
position. (Ashley Deeks at least cites a couple of law
reviews in defense of it, albeit one from 1958, in addition to —
unsurprisingly — statements by American officials.)
Is the “unwilling or unable” standard the
correct one?
Perhaps — but that position needs to be the end of the analysis,
not the beginning. After all, the ICJ
does not accept the standard: the Court has consistently held
that Article 51 of the UN Charter
limits self-defensive acts against non-state actors to situations in which the non-state actor’s armed
attacks are in some way imputable to the state whose territorial sovereignty is being violated. That
was the ICJ’s position in Nicaragua,
and the Court reaffirmed that position in both the Palestinian Wall advisory opinion and DRC vs. Congo.
It is
certainly possible to argue that the customary rules governing
the use of force in self-defense have evolved to adopt the “unwilling or
unable” standard. But that is a highly contentious and
extraordinarily difficult question. As Tom Ruys has concluded in his magisterial
study of Article 51 — a study that actually examines state
practice and opinio juris concerning the use of armed force
against non-state actors:
In the
end, we must admit that this is an area which is characterized by significant
legal uncertainty. De lege lata, the only thing that can be said
about proportionate trans-border measures of self-defence against attacks by
non-State actors in cases falling below the Nicaragua threshold is
that they are ‘not unambiguously illegal’. De lege ferenda, we believe
that customary law is evolving towards a different application of Article 51 UN
Charter in relation to defensive action against a State – viz. coercive action
that directly targets the State’s military or infrastructure – and defensive
action within a State – viz. recourse to force against a non-State group
present within the territory of another State.
Goldsmith
exhibits no such tentativeness, perhaps because it is simply unthinkable to him
that international law might limit the United States’ ability to use force in
self-defense. Indeed, for too many American international-law scholars,
particularly conservative ones, it is meaningless to distinguish between the lex
lata and the lex ferenda — international law is
simply whatever the U.S. says it is.
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