INTRODUCTION: NEW THREATS AND THE CALL FOR NEW LAW I. THE USE OF FORCE: THE LAW A. The Prohibition on the Use of Force B. Exceptions to the Prohibition on the Use of Force 1. Self-defense 2. Collective security C. Use of Force: A Regime of Rules and Standards II. LEGAL IMPEDIMENTS TO USING FORCE IN SELF-DEFENSE IN RESPONSE TO THE NEW SECURITY THREATS A. Terrorism 1. The absence o fan "armed attack". 2. Territorial integrity of the state where force is used 3. Problematic justifications: State responsibility and harboring a. State responsibility b. Harboring terrorists as a basis for the use of force 4. International assessment of claims of self-defense against terrorism B. The WMD Threat 1. A problematic justification: Anticipatory self-defense 2. International assessment of claims of self-defense against WMD threats III. NEW DOCTRINES FOR NEW SECURITY THREATS A. New Use of Force Doctrines: Terrorism 1. Permitting the use of force on the territory of states where terrorists are found. 2. Use o f force in the absence of an armed attack 3. Use of force against states that harbor or support terrorists B. New Use of Force Doctrines: Weapons of Mass Destruction in the Hands of Dangerous States and the "Duty to Prevent". C. New Cross-Cutting Use of Force Doctrines 1. Preemption and prevention 2. Necessity and stability IV. COLLECTIVE SECURITY AND THE NEW SECURITY THREATS A. Collective Security and the Balance of Power B. New Security Threats and Converging Permanent Five Interests 1. Terrorism 2. WMD proliferation and dangerous states C. Permanent Member Cooperation to Counter the New Security Threats 1. General measures 2. The Iran case 3. The North Korea case D. The Iraq Counterhypothetical? V. DEFENDING THE INTERNATIONAL SECURITY ARCHITECTURE: NOSTALGIC OR NORMATIVE? A. Legitimacy 1. Determinacy 2. Symbolic validation 3. Coherence 4. Adherence 5. The legitimacy of the Security Council as an institution B. Effectiveness C. Limiting Error and Abuse VI. PRESCRIPTIONS A. Adjusting Traditional Foreign Policy Perspectives B. Next Steps 1. Narrowing the agenda 2. Naming names 3. Setting a threshold for force 4. Improved intelligence sharing CONCLUSION INTRODUCTION: NEW THREATS AND THE CALL FOR NEW LAW
We live in dangerous times. The September 11, 2001 terrorist attacks against the World Trade Center and the Pentagon inflicted casualties and devastation not sustained on American soil since the Civil War. Exploiting the world's growing interdependence, global terror networks lurk in the shadows, plotting attacks that could strike anywhere against population centers without notice. The world's most dangerous states--illiberal regimes with little regard for international stability--threaten to develop weapons of mass destruction (WMD) and use the specter of nuclear, chemical, or biological weapons attacks to intimidate and dominate others. Fanatical terrorist groups and authoritarian regimes more committed to their own survival than the well-being of their populations exhibit disdain for the lives of both their adversaries and their own forces, undermining the utility of the traditional security policy of deterrence. Changing technologies, which allow countries or terrorist groups with virtually no conventional military capabilities to inflict great devastation on their adversaries, have undermined the traditional security policy of containment. As a result, although it may be difficult to imagine for those of us raised in the age of the strategic doctrine of "mutually assured destruction," the current security climate is perhaps even more unsettled and dangerous than the one that prevailed during the Cold War, when nuclear superpowers maintained a balance of terror by aiming thousands of nuclear warheads at one another's cities.
There is no doubt that international terrorism and the proliferation of weapons of mass destruction--which I refer to as the "new security threats"--present the international community with major challenges. National security strategists and academic commentators alike agree that the new security environment is one in which states may increasingly need to confront threats to international peace with the use of force. Strong evidence supporting this assessment comes in the form of the initiation by the United States of two major military campaigns since October 2001 to counter the new security threats--one in Afghanistan to combat terrorism and the other in Iraq to combat the emergence of WMD capabilities in a dangerous state.
But if the international security environment has undergone a dramatic shift, the prevailing legal regime has not. The international law rules and institutional arrangements that today govern the international use of force are based on the norms and structures established in the U.N. Charter at the end of the Second World War. For many observers, the failure of the international security architecture to change to keep pace with the evolving security climate is disturbing. Some states, in particular the United States, through their declared policies as well as their actions, have begun to question the viability of the existing international legal regime for countering the new security threats. They have begun to articulate new doctrines that deviate from the existing international security architecture so as to provide new legal justifications for using force.
Academic commentators have also addressed what they see as a growing gap between the international legal regime governing the use of force and the nature of today's international security threats. Anne-Marie Slaughter and William Burke-White, for example, argue that in order "[t]o respond adequately and effectively to the threats and challenges that are emerging in this new paradigm, we need new rules." (1) Robert Turner, too, contends that the increased threats presented by international terrorism and the proliferation of weapons of mass destruction "demand a new paradigm" for assessing the legality of resort to force. (2) Ruth Wedgwood has suggested that the law of self defense, which requires a state to "wait until an attack is launched before responding," is "ill-suited" to the new security threats. (3) Richard Gardner agrees that the "new strategic environment, marked by suicidal terrorists and the spread of weapons of mass destruction, requires a different approach." (4) Jane Stromseth also argues that "the rules and the system [governing the use of force] need refining and reform" (5) and urges adjustments to our understanding of the right of self-defense and the role of regional arrangements in addressing today's urgent threats. (6) John Yoo and Will Trachman declare more categorically that "[t]oday ... the United Nations' rules on the use of force have become obsolete" (7) and that "[m]odern warfare demands that states enjoy more flexibility in the use of force than that permitted under a strict reading of the UN Charter's rules." (8)
In this Article, I argue that--contrary to widely held claims and assumptions--the structure of the existing international security architecture is not ill-suited to addressing the new security threats. Under its collective security powers, the U.N. Security Council may authorize force to respond to an act of aggression, a breach of the peace, or a threat to international peace and security. Because the new security threats--terrorism and WMD proliferation--undoubtedly qualify as threats to international peace and security, the Security Council possesses the authority under the current legal regime to authorize force to confront them.
Few, of course, would quarrel with the notion that the Security Council is empowered to use force to counter the new security threats. However, what commentators seem generally to believe--or at least to assume--is that the Council is in practice unlikely to respond to such threats. In this view, the capacity of any one of the five Permanent Members to block the use of force through the exercise of its veto power destroys the potential effectiveness of the collective security apparatus. This is particularly true given the perceived disunity, even rivalry, among the Council's Permanent Members.
I disagree. I contend that the nature of the new security threats and the common challenge they present to the Permanent Members should cause us to reconsider this prognosis for inevitable Security Council gridlock. Security Council inaction was to be expected under the international balance of power that prevailed during the Cold War era, when the Permanent Members either had competing interests over or were largely indifferent to most of the major international security threats that arose. The situation with the new security threats is quite different. International terrorism and the spread of weapons of mass destruction implicate and threaten the interests of all of the Council's Permanent Members. These threats are not a cause or result of great power conflict or rivalry; instead, the interests of the major powers in seeking to counter the new security threats are essentially in alignment. The Permanent Members accordingly have considerable incentive to reach shared understandings in both assessing the severity of terrorist and WMD-related threats and developing strategies--including potentially the use of force--to address them.
Under the circumstances, the widely held belief that the Charter's collective security apparatus is incompatible with today's geopolitical realities is too blunt. Undoubtedly, the prevailing rules governing the use of force were not designed with the new security threats in mind. Nevertheless, because the interests of the Permanent Members do not clash with respect to the goals of countering terrorism and WMD proliferation, the international security architecture is actually better suited to addressing these threats than it was to countering the conventional state-versus-state conflicts for which it was created. The...