In the recent years, progressive lawyers have sought to bring considerations of class and political economy back to the centre of legal analysis. Coalescing around ClassCrits and, more recently, the Law and Political Economy movement, legal scholars have taken aim at the role of law in sustaining a profoundly unjust and unsustainable neoliberal political economy. This emerging body of literature highlights the (mal)distributive effects of facially neutral laws and the ways that law contributes to the constant remaking of class relations. The flip coin of this relationship, namely the effect of political economy on the existence, interpretation and application of law, is less examined, probably because of the distinctly Marxist flavour of this question. Indeed, the relationship between these strands of progressive legal scholarship and Marxism remains contested. Non-Marxist legal scholars are often reluctant to explore the effect of political economy on law due to a desire to maintain the relative autonomy of law and legal analysis in opposition to what is seen as a Marxist tendency to collapse law to either bourgeois class interest or to overarching logics of capitalism in a way that misses the specificities of law as a distinct social practice.
In a recent piece published by Humanity, I challenge this unwillingness to reflect on how changes in global political economy shape law itself. In particular, I bring political economic analysis to bear upon one of the most controversial doctrines of contemporary international law: the unwilling or unable doctrine. The doctrine seeks to answer the controversial question whether and under what conditions states are allowed to use force against other states for attacks that emanate not from the latter’s organs but rather from non-state actors. This question is as old as guerrilla warfare itself. It became particularly important during the Cold War due to the tendency of both sides to use local proxies in their confrontations in the Global South. At the time, the International Court of Justice adopted a highly restrictive approach which rendered such uses of force unlawful in the vast majority of cases. However, this restrictive approach came under pressure during the so-called ‘war on terror’. Since 2001, the US and its allies have attempted to relax the prohibition on the use of force. The ‘unwilling or unable’ doctrine is part of this broader effort, as it posits that states can, in fact, use force provided that the territorial state is ‘unwilling or unable’ to stop such ‘terrorist’ attacks.
Many critics of the doctrine have argued that it is overly broad and indeterminate, giving powerful states almost unlimited discretion in identifying who is ‘unwilling or unable’. My contribution, however, suggests that this is not exactly the case. Even though the doctrine creates room for arbitrary uses of force, it also has a logic to it, and this logic is a political economic one. By revisiting the relevant literature, I show that despite a great degree of vagueness, proponents of the doctrine seem to have specific ideas about what makes someone ‘willing and able’. With admirable regularity, the relevant literature posits that signing us for US-led ‘train and equip’ programs, increasing one’s military budgets, militarising policing and border protection can tip the scales and allow a state to be considered ‘willing and able’ and, therefore, be exempted from the scope of this broader, permissive rule. In addition, I argue that more often than not these non-state actor armed attacks are not concrete and imminent acts of violence. Rather, by invoking the ‘unwilling or unable doctrine’ states are seeking to respond to vaguer threats and, ultimately, they seek lawfully to use force to safeguard broader conceptions of security and perform risk-management.
In my eyes, the specific form and content of the ‘unwilling or unable’ doctrine is largely incomprehensible unless we look carefully into the ‘war on terror’ as a process of privatised and financialised capitalist accumulation. Recent studies estimate that the funds committed to the war on terror in the United States alone range from 2.8 to 8 trillion dollars, depending on the expenses included in the calculation. War-related spending has also increased exponentially among the US’s partners in the war on terror. Before 9/11, Australia’s military budget stood at AUD 13.3 billion. In the financial year 2019–2020, it had increased to over AUD 38 billion. In Pakistan, the war expenses jumped from USD 2.67 billion in 2001–2002 to USD 23.77 billion in 2010–2011, although they did begin to decline since. Over the same period, foreign aid was increasingly directed toward counterterrorism-related capacity building over more traditional developmental and social goals. The rhetoric of unprecedented threat, existential attack, and fight between good and evil in the aftermath of 9/11 was not accompanied, as was the case during World War II, the Korean or Vietnam wars, by a publicly directed war economy funded by high tax-rates or by mass mobilisation of the US Army’s reserves. Rather, all aspects of the war on terror have been privatised, and have been funded through borrowing instead of higher taxes. The ‘unwilling or unable’ doctrine attempts to legalise, and therefore, to stabilise de facto pressures and arrangements that perpetuate this economic structure. In this respect, the doctrine assumes a double role that ad hoc arrangements cannot fulfil. First, the “unwilling or unable” turns what would be a series of contingent and piecemeal contractual relations into an expectation of ongoing engagement, spending, and appreciation. This (attempted) safeguarding that the future will be like the present can be understood as a way of using law to minimise or at least manage risk, understood both as security risk and as investment risk. Second, the use of international law in particular hinges on the belief (correct or not) that not all states are equally competent guarantors of the ongoing accumulation of capital in their territories and, therefore, some external arm-twisting is necessary to keep this mode of accumulation going.
All in all, my piece asserts that it is impossible to fully comprehend the heated debates surrounding the legality of the ‘war on terror’ without a solid understanding of the political economy that underpins modern war and imperialism. More specifically, I posit that this political economy is not simply underpinned by legal arrangements, even though this is certainly true. Rather, I argue that core concepts and arguments in international law reflect the immediate needs and, more fundamentally, the rationalities of this political economy.