The counterproliferation self-help paradigm: a legal regime for enforcing the norm prohibiting the proliferation of weapons of mass destruction.

• Jurisdiction: United States
• Date: 22 June 1999
• Author: Roberts, Guy B.

Neither the United States of American nor the world community of nations can tolerate deliberate deception and offensive threats on the part of any nation, large or small. We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril. Nuclear weapons are so destructive and ballistic missiles are so swift that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.

-- John F. Kennedy, 1962(1)

1. INTRODUCTION: THE PROBLEM OF PROLIFERATION AND THE LACK OF AN EFFECTIVE LEGAL REGIME

   The proliferation of weapons of mass destruction (WMD),(2) as well as missile delivery systems, is one of the most significant and protracted threats to international security and global stability ever faced by mankind. In a world where regional tensions may unpredictably erupt into war and terroristic acts of violence have become commonplace, these weapons have devastating consequences for world order. We continue to witness a steady and deadly increase in those countries determined to acquire a WMD capability. While the reasons are complex, and beyond our scope here, the fact remains that despite the creation of international nonproliferation norms and legally binding treaty commitments, a minority of states continues to pursue these weapons. No nation can absorb the devastating consequences of these weapons of terror. Yet, although the international community has condemned the proliferation of these weapons, the mechanisms for stopping or rolling back proliferation have been ineffective and the current legal regime authorizing nations to use force in response to this threat is moribund.

   The use of force, under the most commonly accepted view of the current legal regime, may only be justified as an act in self-defense. The criteria for self-defense include an actual attack or a threat of attack so imminent that the perceived victim has no reasonable choice but to attack. All other uses of force, absent specific UN Security Council approval, are illegal and therefore prohibited. However, given the strategic realities created by proliferators armed with such weapons should such responses be condemned as illegal in the absence of an "imminent" threat?

   Regrettably, the prevailing patterns of statecraft and the fundamental change of circumstances in the past fifty years have created a radically different world from the one of the Cold War, so that the current legal constructs so optimistically and idealistically enshrined in the 1945 UN Charter are unworkable. A new paradigm is essential if we are to successfully meet the challenge of the WMD threat. The main reason for a new juridical paradigm is that the old juridical paradigm of restraint as codified in the UN Charter simply no longer works. It is no longer responsive to the threat facing nations. We already see evolving events undermining the older paradigm's claim to deal adequately with the problems within its domain. Consequently, new paradigms which expand the permissible nature and role of the use of force are credibly challenging the old order. A new legal regime or paradigm is necessary to reflect the new political environment in which national survival, regional security and world peace can, dictate the preventive or preemptive(3) use of force to either deter acquisition plans, eliminate acquisition programs or destroy illicit WMD sites at any stage in the proliferator's acquisition efforts.

   This new counterproliferation self-help paradigm is not business-as-usual power politics validated by a legal construct but rather a common sense recognition that the law is not a suicide pact and that it is a process, more than just rules, that reflect and at the same time controls state behavior. This new "counterproliferation self-help" paradigm is fully consistent with the purposes of the Charter,(4) since illicit WMD programs threaten international peace and security. The current legal paradigm is not responsive. So, if the law is to have any relevance, a paradigm shift is both necessary and possible.

   The term "paradigm" is appropriate since what is proposed is the embodiment of a distinct and coherent explanation of a new legal norm for the use of force that explains and validates the use of that force which should guide future practitioners in responding to the extraordinary threat posed by WMD proliferators.(5) The term is used as a conception of a specific legal regime, in this case a new legal regime to justify and rationalize state (or states) responses to the new threat of WMD proliferation. New modes of thought, new orientations are needed if the law is to adopt a dynamic, progressive--and therefore relevant--perspective. The old paradigm reflected a seemingly endless debate over the limits and scope of the UN Charter's Article 2(4) use-of-force prohibition and the right of self-defense enshrined in Article 51. As it currently stands we either provide tortuous and not-very-convincing legal justifications for our actions or we end up hobbling ourselves with legalistic restrictions against carrying the war--and indeed that is exactly what it is--to those that intend to do us and our way of life severe harm, either now or in the not-to-distant future.

   To be relevant and useful international law must be adaptable. As one legal scholar counseled: "International law, like all living law, is in a process of continuous growth and adaptation to the new needs and circumstances.'"(6) Responding to the weapons of mass destruction proliferation threat necessitates examining the current legal regime in which these potential responses will be made. The very nature of the threat itself--WMD in the hands of unstable, despotic states that make no secret of their hegemonic designs or desire to threaten regional peace and security--is sufficient to justify the use of force, collectively or unilaterally if necessary. In cases involving the most fundamental of issues--the survival of the nation, regional security, global peace and order--the law should not be silent. A new paradigm will provide the world community with legally and politically supportable justifications for responding to and helping to eventually eliminate this ever-growing threat to world peace and security.

   After a brief review of the magnitude of the threat, the nonproliferation and US counterproliferation efforts will be discussed, and the current legal regime will be reviewed, to include the on-going debate on the limits of self-defense. The criteria for the new paradigm will be set forth and four case studies will be examined under these criteria to demonstrate their efficacy and supportability without doing damage to the norm requiring states to "refrain" from using force in international relations. In the face of the demonstrably horrible threat of WMD, new legal parameters need to be established that support and justify collective or unilateral actions in response to the threat.

   Preemptive or preventive acts are and, it is submitted, always will be controversial. In the current historical moment of world politics the United States--the world's only superpower--with unparalleled military power leads an international system in which most of the other states participate as willing partners. If the United States fails to use its power in ways that others will accept as just and legal, a terrible backlash could result. The consequences could be weakened cooperation, the de-legitimization of US leadership, and current international nonproliferation regimes could collapse, resulting in the acceleration of weapons of mass destruction proliferation both horizontally and vertically. The new proposed paradigm recognizes that certain state actors refuse to adopt the accepted practice of civilized nations and that stated response policies, supported by a coherent legal regime, are the only way to ensure national security, regional stability, and eventually a world free of this scourge on mankind.

2. THE WMD THREAT: AN EXTRAORDINARY CHALLENGE TO CIVILIZATION AND WORLD ORDER

   As the new millennium approaches, we face the very real and increasing prospect that regional aggressors, third-rate armies, terrorist groups and even religious cults will seek to wield disproportionate power by acquiring and using these weapons that can produce mass casualties. These are neither far-fetched nor far-off threats. -- Secretary of Defense William S. Cohen(7)

   Since the end of the Cold War, a number of states have emerged into the public consciousness whose behavior is in contravention of agreed norms of state behavior; that have either used or threatened to use force to coerce those that thwart their ambitions, and that seek to acquire arsenals of nuclear, biological, or chemical (NBC) weapons to achieve their aspirations. Former national security advisor Anthony Lake identified these state actors as "rogue" or "backlash" states.(8) At least 25 countries already have or are in the process of developing nuclear, biological or chemical weapons and the means to deliver them.(9) Of these, many have ties to terrorists, to religious zealots or organized crime groups who are also seeking to use these weapons.(10)

   Why are these weapons so unique? This is a threat qualitatively different from conventional weapons because of its potential to do extreme damage, physical and psychological, with a single strike.(11) Due to their availability, relative affordability, and easy use, weapons of mass destruction allow conventionally weak states and non-state actors to counter and possibly thwart the overwhelming conventional superiority possessed by the United States and other Western nations.(12) Because of their potentially far greater lethality, any threats of use against the civilian populations of regional allies or of Western intervening powers will have a much greater...