Inapplicability of the unwilling or unable doctrine in the fight against terrorism: A manifestation of Hegemonic International Law

Abstract

The emergence of Daesh prompted some States to relaunch the doctrine that would allow the application of self-defence against a non-State actor when the State in which the group is located is unwilling or unable to combat it. Using a classical legal methodology that studies the sources of international law, jurisprudence and the most relevant doctrinal contributions with a critical socio-legal approach, we analyse the lawfulness of this doctrine and its implications in the understanding of international law. We will determine that it is an ambiguous and arbitrary doctrine that does not have sufficient state support to become law and that contravenes the principle of territorial integrity and state sovereignty, as well as the rules of international responsibility of the state. The thesis reflects the pretension of promoting a hegemonic international law.