Public Law Studies Quarterly

Current Issue

By Issue

By Author

Author Index

Keyword Index

Journal About

Editorial Board

Journal Aim Scope

News

Journal FAQ

Journal Links

Guide for Authors

Author Guidelines for Manuscript Submission

Reviewers List

Criteria for Determining an Unwilling or Unable State under Customary International Law

Document Type : Article

Authors

1 Ph.D. Student in International Public Law, Faculty of Law and Political Science, Azad Islamic ‎University of Qaemshahr, Qaemshahr, Iran‎

2 Assistant Prof., Department of International Public Law, Faculty of Law and Political Science, Azad Islamic University of ‎Chalus, Chalus, Iran

3 Assistant Prof., Department of International Public Law, Faculty of Law and Political Science, ‎Azad Islamic University of Qaemshahr, Qaemshahr, Iran‎

Abstract

Since ancient times, non-state actors, such as terrorist groups, have caused widespread suffering in the world, resulting in governments becoming victims of their attacks. These states have faced an unprecedented legal dilemma regarding how to confront and respond to non-state actors within the territory of another state. When the host state is not legally responsible for the attacks, the use of force by the victim state against a non-state actor within the host state’s territory may result in a violation of the host state’s sovereignty and territorial integrity. According to the “unwilling or unable” standard, if the territorial state is unwilling or unable to control threats posed by non-state actors, the victim state may resort to force within the host state’s territory without obtaining its consent. Consequently, this standard diverges from existing legal requirements and significantly lowers the threshold of the prohibition on the use of force. This paper, employing a descriptive-analytical method, addresses the question: Can the “unwilling or unable” standard be considered a constitutive norm of customary international law? The study concludes that, although this standard—and, by extension, the right to self-defense against non-state actors—receives some support among legal scholars, it has not generally been accepted as customary international law due to reasons such as the lack of state practice, the subjective element, extensive criticism, and non-acceptance by the international community.

Keywords

Main Subjects

References

  1. Books

    1. Corten, O. (2010). The Law against War: The Prohibition on the Use of Force in Contemporary International Law. Bruxelles:Université Libre de Bruxelles (ULB).
    2. Ponbje, E., & van Steenberghe, R. (2018). Israeli Raid against Plo Headquarters in Tunis in The Use of Force in International Law. ed. Tom Ruys, Olivier Corten, and Alexandra Hofer: Oxford.
    3. Kretzmer, D. (2018). Us Extra-Territorial Actions against Individuals in The Use of Force in International Law: Oxford.
    4. Schmitt, M. (2002). Counter-Terrorism and the Use of Force in International Law. George C. Marshall European Center for Security Studies.

     

    1. Articles
    2. Dawood I, A. (2017). Defending Weak States against the Unwilling or Unable Doctrine of Self-Defense. journal of international law and international relations, University of Chicago, 1-46.
    3. Deeks, A. (2012). Unwilling or Unable, Towards a normative framework for Extraterritorial Self-Defense. Virginia Journal of International Law, (52), 483-550.
    4. Hakimi, M. (2015). Defensive Force Against Non-state actors: The State of Play, International Law Studies. Stockton Center for the Study of International Law, (91), 138-159.
    5. Murphy, S. (2002). Terrorism and the Concept of Armed Attack in Article 51 of the Un Charter, Harvard International Law Journal 43(1),112-132.
    6. Murphy, S. (2015). The Identification of Customary International Law and Other Topics. The Sixty-Seventh Session of the International Law Commission, George Washington University Law School, 138-159.
    7. Nielsen, R. (2018). The illegality of Extraterritorial Use of Force against Non-state Actors or New Customary law?. International Security and Law Faculty of Business and Social Sciences, University of Southern Denmark, 1-88.
    8. Tibori-Szabó, Ki. (2016). The ‘Unwilling or Unable’ test and the Law of Self-defence, Fundamental Rights in International and European Law: public and private law perspectives, Amsterdam Center for International Law (ACIL), 73-97.
    9. Wood, M.& Lubell, N. (2014). Use of Force, Report by the Commitee on Aggression and the Use of Force. Washington Conference, International Law Association, 619-641.

     

    ICJ Decision-Opinions and resolutions SC

    1. African Union Non-Aggression and Common Defence Pact (2005). Abuja 31.01.2005.
    2. CP/RES.930(2008). Convocation of the Meeting of Consultation of Ministers of Foreign Affairs and Appointment of a Commission, 2008, OEA/Ser.G CP/RES.930,1632/08.
    3. European Parliament(2014). "Use of Armed Drones", 2014/2567.
    4. Prosecutor v. Duško Tadic(1999). Appeals Chamber, Appeals Judgment, ICTY, Case No. IT-94-1-A.
    5. Security Council Resolution 1368(2001). Adopted by the Security Council at its 4370th meeting, on 12 September
    6. Security Council Resolution 1373(2001). Adopted by the Security Council at its 4385th meeting, on 28 September 2001.
    7. Security Council Resolution 2249(2015). Adopted by the Security Council at its 7565th meeting, on 20 November 2015.
    8. The Rome Statute of the International Criminal Court(1998)
    9. UN General Assembly, Convention on the Law of the Sea(1982). 10 December, Art. 111.
    10. UN Security Council, Security Council resolution 1373(2001). S/RES/1373.
    11. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.) (1986). Judgment, I.C.J. Reports.
    12. International Law Commission[ILC](2001). Second Report on Identification of Customary International Law, UN Doc.
    13. Statute of International Court of Justice(1946). Article 38.1 (b).
    14. Corfu Channel case (1949). Judgment of April 9th, ICJ Reports.
    15. Colombian-Peruvian Asylum Case(1950). Judgment of November 20th, ICJ Reports.

     

    letters & Comments and Report

    1. Letter from the Chargé d’affaires a.i. of the Permanent Mission of the Islamic Republic of Iran to the United Nations addressed to the Secretary-General(1994). UN Doc. S/1994/1273.
    2. Letter from the Permanent Representative of Islamic Republic of Iran to the United Nations addressed to the Secretary-General(1993). UN Doc. S/25843.
    3. Letter from the Permanent Representative of Israel to the United Nations addressed to the President of the Security Council(1993). UN Doc. S/26152.
    4. Letter from the Permanent Representative of the Islamic Republic of Iran to the UnitedNations addressed to the Secretary-General(1996). UN Doc. S/1996/602.
    5. Letter from the Permanent Representative of the Islamic Republic of Iran to the United Nations addressed to the Secretary-General(1999). UN Doc. S/1999/781.
    6. UN Doc. A/52/168 – S/1997/429(1997). Letter from the Permanent Representative of Qatar to the United Nations Addressed to the Secretary-General.
    7. UN Doc. A/52/PV.22(1997). United Nations General Assembly, 52nd 22nd plenary meeting.
    8. UN Doc. A/54/917 and S/2000/580(2000). Letter from the Permanent Representative of South Africa to the United Nations addressed to the Secretary-General.
    9. UN Doc. A/56/664-S/2001/1124(2001). Letter from the Permanent Representative of Georgia to the United Nations Addressed to the Secretary-General.
    10. UN Doc. A/57/341-S/2002/950(2002). Letter from the Permanent Representative of Georgia to the United Nations addressed to the Secretary-General. Annex: Statement by the Ministry of Foreign Affairs of Georgia.
    11. UN Doc. A/57/409-S/2002/1035(2002). Letter from the Permanent Representative of Georgia to the United Nations addressed to the Secretary-General. Annex: Statement by the Ministry of Foreign Affairs of Georgia.
    12. UN Doc. S/1995/540(1995). Letter from the Permanent Representative of Iraq to the United Nations Addressed to the Secretary-General.
    13. UN Doc. S/1995/566(1995). Letter from the Charge d’Affaires A.I. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations Addressed to the President of the Security Council.
    14. UN Doc. S/1996/401(1996). Identical Letters from the Permanent Representative of Iraq to the United Nations Addressed to the Secretary-General and the President of the Security Council.
    15. UN Doc. S/1996/796(1996). Letter from the Permanent Observer for the League of Arab States to the United Nations Addressed to the Secretary-General.
    16. UN Doc. S/2002/1012(2002). Letter from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General.
    17. UN Doc. S/2002/851(2002). Letter from the Permanent Representative of Georgia to the United Nations Addressed to the President of the Security Council.
    18. UN General Assembly(1970).Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among States in accordance with the Charter of the United Nations, A/RES/2625(XXV).
    19. UN Security Council Resolution 425(1978), Israel-Lebanon, UN Doc. S/RES/425, Resolution 425.
    20. UN Security Council Resolution(1978), Israel-Lebanon, UN Doc. S/RES/426, Resolution 426.
Public Law Studies Quarterly
Volume 55, Issue 4 - Serial Number 44
Winter 2026
January 2026
Pages 2323-2346
Files
History
  • Receive Date: 10 June 2024
  • Revise Date: 17 September 2024
  • Accept Date: 11 November 2024
Share
How to cite
Statistics