Deutsches Haus at NYU and the NYU School of law present the talk The “Unwilling or Unable State” as a Challenge to International Law: A Contextualization and (Preliminary) Deconstruction of a Notion” by Dr. Paulina Starski, LL.B., Senior Research Fellow at the Max-Planck-Institute for Comparative Public Law and International Law, Heidelberg, PostDoc at the Bucerius Law School, Hamburg, and the current Deutsches Haus at NYU DAAD Visiting Fellow.
The notion of the “unwilling or unable state” has recently experienced a renaissance in international law and international relations discourse. This revival has been initiated by the increasing significance of threats stemming from non-state actors acting within the territory of states that fail to prevent such terrorist endeavors. This term is, however, by no means a novelty. It has long been a paradigm of U.S. foreign policy, and numerous other states have appropriated it as they rise to the challenge of confronting terrorist attacks. Beyond the context of self-defense, it has been utilized as an argumentative pattern to justify multilateral operations without a UN mandate within states that fail to prevent grave human rights violations within their territory. While this conception is frequently employed and exerts significant power within contemporary debates, it is poorly incorporated into written legal sources. The only international treaty using the exact wording “unwilling or unable” with regard to states is the Rome Statute of the International Criminal Court. A similar terminology is echoed in the 1951 Convention Relating to the Status of Refugees. Beyond that, it is merely found in soft law documents addressing questions of the so-called “Responsibility to Protect” (R2P), whose normative quality is still disputed.
This talk will sketch how the notion of the “unwilling or unable state” is employed within the international legal and political discourse, depict what normative implications are attributed to it by the various discourse participants, reflect on the conceptual challenges connected with it, critically assess how it fits into the scheme of existing international legal rules, and highlight its potential dangers.
Paulina Starski is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg as well as a postdoctoral fellow at the Bucerius Law School in Hamburg. She is currently conducting research at the NYU School of Law as a Hauser Global Fellow and is the Deutsches Haus at NYU DAAD Visiting Fellow. She holds degrees from Bucerius – LL.B. as well as Ph.D. (summa cum laude) ‒ and conducted a part of her law studies at the University of Sydney Law School. Her Ph.D. on the “Interfederal Administrative Act” (Mohr Siebeck, 2014) focuses on constitutional and administrative challenges of German federalism viewed from a comparative perspective.
Her academic interests lie in the fields of public international law (in particular, the regime on the use of force); international legal theory; the notion of state sovereignty; international human rights law; European law; as well as German and comparative constitutional law (recently with a particular focus on Polish constitutional law). Paulina has published widely about these topics in various national and international law journals. Being passionate about teaching, Paulina has lectured in Germany and abroad on a wide range of subjects within her research fields. Paulina is a member of the Coordinating Committee of the European Society of International Law’s Interest Group on Peace and Security, the Editorial Board of the Heidelberg Journal of International Law, and the Advisory Board of voelkerrechtsblog.de.
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“The Unwilling or Unable State as a Challenge to International Law: A Contextualization and (Preliminary) Deconstruction of a Notion” is a DAAD-sponsored event.