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TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures

  • Ntina Tzouvala (a1)
Extract

Given the long history of violent encounters between the Global North and the Global South, legal arguments concerning the use of force are a fertile ground for testing the virtues and limits of Third World Approaches to International Law (TWAIL) as a theory aspiring to “address the material and ethical concerns of Third World peoples.” This essay examines the usefulness and limits of TWAIL in the context of the “unwilling or unable” doctrine currently promoted by a series of Western scholars and states in order to expand the scope of application of the right to self-defence under Article 51 of the United Nations Charter. Adopting TWAIL’s impulse to historicize, this essay argues that the structure of this doctrine closely replicates the “standard of civilization” that informed international legal theory and practice throughout the nineteenth century. At the same time, widespread resistance to the “unwilling or unable” doctrine indicates that the profound transformation of international law on the use of force after 1945 and the diffusion of sovereignty outside the West put into question certain methodological and political commitments of TWAIL.

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References
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1 Chimni, Bhupinder S., Third World Approaches to International Law: A Manifesto, 8 Int’l Community L. Rev. 3, 4 (2006).

2 Deeks, Ashley S., “Unwilling or Unable”: Toward a Normative Framework for Extraterritorial Self-Defense, 52 VA. J. Int’l L. 483, 486 (2012).

3 Stephen M. Pezzi, The Legality of Killing Osama bin Laden, Harv. L. School Nat’l Security J. (May 16, 2011, 2:52 PM).

4 Ashley S. Deeks, The UK’s Article 51 Letter on Use of Force in Syria, Lawfare (Dec. 12, 2014, 9:53 AM).

5 Harriet Moynihan, UK Drone Strike on ISIS Raises Legal Questions, Chatham House (Sep. 15, 2015).

6 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 105-115 (June 27).

7 Henriksen, Anders, Jus ad bellum and American Targeted Use of Force to Fight Terrorism around the World, 19 J. Conflict Security L. 211 (2014).

8 James Lorimer, The Institutes of the Law of Nations (1883).

9 But see the argument of Gerry Simpson that the assignment of specifically legal consequences to the standard of civilization was not shared by all 19th century international lawyers: Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order 116 (2004).

10 Justin Desautels-Stein has been working on the parallels between Lorimer’s views and the “unwilling or unable” doctrine and Arnulf Becker Lorca emphasizes directly the conceptual and historical links between the doctrine and the standard of civilization: Lorca, Arnulf Becker, Rules for the Global “War on Terror”: Implying Consent and Presuming Conditions for Intervention, 45 N.Y.U. J. Int’l L. & Pol. 45 (2012).

11 Ahmed, Dawood I., Defending Weak States against the “Unwilling or Unable” Doctrine of Self-Defense, 9 J. Int’l L. & Int’l Rel. 1, 18 (2013).

12 Vidan Hadzi-Vidanovic, Kenya Invades Somalia Invoking the Right of Self-Defense, EJIL: Talk! (Oct. 18, 2011).

13 Kevin J. Heller, The Seemingly Inexorable March of “Unwilling or Unable” through the Academy, Opinio Juris (Mar. 6, 2015, 6:44 AM).

14 Antony Anghie, Imperialism, Sovereignty and the Making of International Law 109 (2007).

15 Anghie, Anthony, The War on Terror and Iraq in Historical Perspective, 43 Osgoode Hall L.J. 45 (2005).

16 Gerrit G. Gong, The Standard of Civilisation in International Society 14-15 (1984).

17 Heller, supra note 13 (“‘Instant custom’? How passé. Who needs state practice at all? And please don’t bore us by pointing out contrary practice by a bunch of benighted states in the Global South. All we really need are enough scholars, special rapporteurs, and former legal advisors in the Global North willing and able to endorse a particular doctrine and poof—customary international law.”).

18 Deeks, supra note 2, at 500.

19 Ashley Deeks, UK Air Strike in Syria (with France and Australia Not Far Behind) Lawfare (Sep. 9, 2015, 10:41 AM).

20 Deeks, supra note 2, at FN. 70 (“I have found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom), nor have I located cases in which states have rejected the test.”)

21 Kevin J. Heller, Do Attacks on ISIS in Syria Justify the “Unwilling or Unable” Test?, Opinio Juris (Dec. 13, 2014, 11:58 AM).

22 Hadzi-Vidanovic, supra note 11.

23 Lowe, Vaughan, The Marginalization of Africa, 94 ASIL Proc. 231 (2000).

24 For example, see Gray, Christine, The Use of Force and the International Legal Order, in International Law 618 (Evans, Malcolm D. ed., 2014).

25 Craven, Matthew et al., We are Teachers of International Law, 17 Leiden J. Int’l L. 363 (2004); Richardson, Henry, U.S. Hegemony, Race, and Oil in Deciding Security Council Resolution 1441 on Iraq, 17 Temp. Int’l & Comp. L.J., 27 (2003).

26 War Would be Illegal, The Guardian, Mar. 7, 2003.

27 Anghie, supra note 14.

28 Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (2011).

29 Eric Posner, Obama’s Drone Dilemma: The Killings Probably Aren’t Legal—Not That They’ll Stop, Slate (Oct. 8, 2012, 3:32 AM).

30 For example, see Chan, Phil C. W., China’s Approaches to International Law since the Opium War, 27 Leiden J. Int’l L. 859 (2014).

31 Deeks, supra note 2, at 488.

* I would like to thank Dr Aoife O’Donoghue and the AJIL Unbound reviewers warmly for their useful comments. Usual caveats apply.

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