CYIL vol. 12 (2021)

jan ondřej CYIL 12 (2021) can be attributable to it. Thus, the unwilling or unable test is part of the attribution under the state’s responsibility for internationally illegal conduct and is relevant to the answer of the question of who the perpetrator of the attack is. 39 In connection to the unwilling or unable doctrine, it can also be assumed that such a state has violated its obligations in terms of due diligence and precaution by tacitly agreeing to the activities of armed groups in its territory. 40 However, such a view does not correspond to the ICJ’s argument in the Corfu Channel case that Albania’s breach of due diligence duty did not justify the use of force by the United Kingdom. 41 However, by failing to warn of the dangers of a minefield and doing nothing to prevent the tragedy, Albania’s behaviour violated its duty of due diligence. From the point of view of the concept of reluctance and inability, we can consider the given behaviour as an expression of reluctance. However, counter-terrorism Security Council Resolutions 1373/2001 or 1624/2005 need to be distinguished from the Corfu Channel case. Resolution 1373 requires states to take the necessary steps to prevent the commission of terrorist acts. It uses terms such as necessary steps or appropriate measures in Resolution 1624/2005 that are considered to be due diligence. Only a state that knowingly tolerates terrorists on its territory becomes internationally responsible, as was the case with Al-Qaeda in Afghanistan (see above). The unwilling state thus becomes responsible only if it fails to meet its obligations in terms of due diligence. 42 “International law covers a vast array of due diligence terminology, yet its legally binding definition is nowhere to be found. In the Corfu case the ICJ pointed out that due diligence is the source of the customary principle of prevention” 43 . “Due diligence is an obligation of conduct on the part of a subject of law (Subjects of International Law). Normally, the criterion applied in assessing whether a subject has met that obligation is that of the responsible citizen or responsible government (Governments). Failure on a subject’s part to comply with the standard – often termed negligence – describes the blameworthiness of the subject as one element of ascribing legal responsibility to it” 44 . With regard to inability cases, the ICJ stated in DRC v. Uganda 45 that it could not conclude that passivity in Zaire’s actions against rebel groups amounts to tolerance or tacit consent and also could not conclude that the absence of action by Zaire’s Government against the rebel groups in the border area is tantamount to “tolerating” or “acquiescing” in their activities. 46 Thus, passivity in the sense of inability cannot be compared to conscious tolerance. A state that is unable to control its territory is therefore not internationally legally responsible for its failure. 47 39 GRAY, Ch. International Law and the Use of Force . 4th edition. Oxford: Oxford University Press, 2018, p. 247. 40 Ibid., pp. 247–248. 41 ICJ Reports (1949), 4 at 12, 35. 42 STARSKI, P. Right to Self-Defense, Attribution and the Non-State Autor- Birth of the “Unable or Unwilling” Standard? Zeitschrift für ausländisches öffentliches Recht und Völkerrecht , 2015, year 75, p. 483. 43 KULESZA, J. Due diligence in International Law . Qeeen Mary Studies in International Law, Volume 26, Brill/ Nijhoff, 2016, p. 262. In: (Accessed 12 November 2021). 44 KOIVUROVA,T. Due Diligence. In: Max Planck Encyclopedias of International Law [MPIL ], Article updated February 2010. Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). Oxford: Oxford University Press, 2021. In: (Accessed 12 November 2021). 45 Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Uganda ), Judgement, I.C.J. Reports 2005, p. 168. 46 Ibid., para 301. 47 STARSKI, P. Right to Self-Defence, Attribution and the Non-State Autor- Birth of the “Unable or Unwilling” Standard? Zeitschrift für ausländisches öffentliches Recht und Völkerrecht , 2015, year 75, p. 481.


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