The Right of Self-Defence Against Non-State Actors: The Legality of the Unable or Unwilling Doctrine and How to Improve Its Application in International Law

By Eduardo Granzotto

"This book is the product of the author's master's thesis, defended in 2019 at King's College, in the International Peace and Security programme of the Department of War Studies. […] In light of the new contemporary threats to international peace and security and their impact on jus ad bellum rules, the author questions whether the Unable or Unwilling Doctrine(UoU), used as an argument for the use of force in the recent fight against the 'Islamic State' in Syria, has a legal basis in the context of self-defence against non-state actors. He then goes on to explore practical ways in which the doctrine's application can be improved.

[…]

In the King's College's Department of War Studies, the examiners described the author's thesis as an exceptional piece of scholarly work, absorbing from its first line and reported that the author demonstrates a striking comprehension of complex legal questions, in addition to providing coherent, insightful, and very sophisticated arguments.

Professor Granzotto's clever, perceptive, and opportune master's thesis led to a rich and particularly persuasive book, which reflects the thoughts of a mature, though young scholar ___ for whom we must predict the continuity of a superb career. "

• Language: English
• Publisher: Editora Dialética
• Release date: Jun 7, 2021
• ISBN: 9786525200903

Book preview

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ACKNOWLEDGEMENTS

Completing a master’s degree programme in London was harder than I thought it would be, but more rewarding than I could have ever imagined. None of this would have been possible without the support of my mentors, Vinicius Carvalho, Antonio Coutinho, and Ricardo Rodrigues. Your letters of recommendation have got me this far. Thank you!

I am also grateful to my supervisor, Dr. Maria Varaki. My thesis could not have been accomplished without your guidance. During my time at King’s College, you inspired me with your unparalleled knowledge of international law, but also as a person. Your kindness and empathy toward your students are impressive.

I cannot express enough thanks to my classmates and friends Alejandra, Charlie, Dan, Lorenzo, Maido, Maria Jose, and Thais for their continued encouragement. The best part of my year in London was meeting you! Dan and Charlie, you each deserve a special thanks for being my unofficial reviewers: thank you for your time and patience!

To my caring, loving, and supportive partner, Victor: my deepest gratitude. Our time in London was unforgettable and having you in my life makes me happier.

I would also like to express my sincere gratitude to those in Brazil who cheered me on during my time abroad. First, to my big family: my mother, Paula, my stepfather, Aldo, my father, Jackson, my stepmother, Angela, my sister, Mylena, and my brothers, Diogo and Junior. I love you all! I also owe a special thanks to my uncle Luis Carlos Pinheiro (in memoriam) and to my godparents Carla Zampieri, Rejani Fernandes, and Vitelmo Fernandes: I am eternally grateful for your support and for your being so present in my life. In this group, I also place Felipe de Farias Ramos (Perfeito) and Luiz Alexandre Mesquita (Mesquitinha), brothers that life gave me: in joy or sadness, they have always been with me. How lucky I am!

Finally, I am grateful to my incredible friends Marcelo Pertille, Edison Marconi, Filipe Ximenes, Heriberto Marconi, Jules Michelet, Athena Melo, Bruno D’Abadia, Jackeline Souza, Eduardo Maia, Luciana Maia, Roberto Troncoso, Anna Glayce Barros, Rafael Araújo, Dasha Molozya, Marco Antônio Oliveira, Mariana Barreiras, Claudia Torres, Lilia Fernandes, Celso de Barros Correia Neto, José Evande Araújo, Andrea Sampaio Perna, Daniel Petersen, Ludimila Lamounier, Luiz Fernando Botelho de Carvalho, Rose Hofmann, Newton Tavares Filho, Davi De Conti, Leandra Oliveira, Emanuela Batista, Felipe Mezzalira, Rafael Steffen Antunes, Rafael Vanin, Gustavo Heil, Angelica Ambrosini, Alisson Andrade, and Guilherme Pedretti. I have been fortunate enough to have these sensational people in my life. You all make my journey in life easier. Thank you!

Foreword

This book is the product of the author’s master’s thesis, defended in 2019 at King’s College, in the International Peace and Security programme of the Department of War Studies. The examining board ___ Dr. Maria Varaki and Prof. Brian Holden-Reid ___ approved the thesis with distinction, indicating that there was quality for publication. I feel honoured to write this foreword to the work of Eduardo Granzotto, a brilliant scholar in international law and a compatriot of mine.

In light of the new contemporary threats to international peace and security and their impact on jus ad bellum rules, the author questions whether the Unable or Unwilling Doctrine (UoU), used as an argument for the use of force in the recent fight against the ‘Islamic State’ in Syria, has a legal basis in the context of self-defence against non-state actors. He then goes on to explore practical ways in which the doctrine’s application can be improved. Offering a first-rate command of the relevant literature in international law, this book answers these questions in three sections.

In a first section the author addresses the general controversy surrounding self-defence against non-state actors, their emergence as a threat to international peace and security, and the problem of attribution explored from different perspectives. The two main schools of thought __ conservatives and liberals ___ are described. Supporting the latter, the author debates the attribution problem, considering ICJ decisions and UNSC resolutions, and concludes that the UoU doctrine can be applied when an armed attack carried out by a non-state actor cannot be attributed to the host state.

In a second section, the legality of the UoU doctrine is discussed. Its content and origin form a basis for the debate, which is followed by a discussion about the possibility of using the law of neutrality analogically. State practice and opinio juris are also analysed, considering Syria as a case study. The author concludes that analogy could serve as a juridical path to recognizing the use of the UoU doctrine in the context of self-defence, but a significant part of the international community resists transposing the rules of neutrality to the use of force regime. In addition, he sustains that the UoU doctrine cannot yet be considered customary law, since it is still challenging to identify the opinio juris. The final argument put forward is that the inherent and absolute right of self-defence shall prevail against the rights of sovereignty in exceptional