The Argument of Self-Defence in Relation to Unwilling or Unable States

The prohibition of the use of force in Article 2 (4) of the UN Charter is a cornerstone of the contemporary international law. The prohibition is general and has only two exceptions: the right of a State to self-defence against an armed attack from another State (Article 51) and the authorization of the Security Council (Article 42).

A new situation is when a non-state actor (e.g. a terrorist organization) operating in the territory of one State launches an armed attack from that State against another State. When the “host State” does not have the will or ability to prevent the attacks, it is not uncommon for the victim State to invoke the “unwilling or unable” argument as a legal basis for using force in self-defence. Russia’s use of force in Georgia 2002, Uganda in Congo in 2003, and Turkey in Iraq and in Syria 2015-2018 are some examples.

In two notable cases in 2004 and 2005, the International Court of Justice ruled that prohibition of the use of force in 2 (4) is sustained and the fight against international terrorism has not changed the legal situation. State practice shows the opposite. The doctrine of the international law is divided on the issue. The aim of this project is to establish whether the argument of “unwilling or unable” State is being developed as a new legal basis for the use of force in intergovernmental relations. The outcome of the research, which is based on the author’s lectures at the Hague Academy in the summer of 2019, will be published in the series Recueil des cours.

Professor Said Mahmoudi contact and bio