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52 Va. J. Int'l L. 483 (2011-2012)
Unwilling or Unable: Toward a Normative Framework for Extraterritorial Self-Defense

handle is hein.journals/vajint52 and id is 493 raw text is: Unwilling or Unable: Toward a Normative Framework for Extraterritorial Self-Defense ASHLEY S. DEEKS * Nonstate actors, including terrorist groups, regulary launch attacks against states, often from within the territory of another state. When a victim state seeks to respond with force to such attacks, it must decide whether to use force on the territory of a state with which it may not be in conflict. International law traditionaly requires the victim state to assess whether the territorial state is unwilling or unable to suppress the threat itself Only f the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test's lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when transnational armed violence is pervasive. This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the unwilling or unable test arises in international law as part of a state's inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test's deep roots in neutrality law while simultaneously illustrating the lack ofguidance about what inquiries a victim state must undertake when assessing whether another state is unwilling or unable to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and proceduralfactors that should inform the unwilling or unable inquiry. It then applies those factors to a real-world example - Colombia's use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia - to explore how the use of these factors would affect the involved states' decision- making and the evaluation by other states of the action's legality. The Article argues that the use of these factors would improve the quality of state decision- * Academic Fellow, Columbia Law School. The author thanks Laurie Blank, Erin Delaney, Ariela Dubler, Monica Hakimi, Thomas Heinemann, Rebecca Ingber, Marty Lederman, Henry Monaghan, Trevor Morrison, Anthony O'Rourke, Vijay Padmanabhan, Paul Stephan, Matthew Waxman, and participants in several Columbia Law School workshops for their helpful comments.

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