TABLE OF CONTENTS I. INTRODUCTION II. CURRENT STANDARD UNDER INTERNATIONAL LAW FOR THE USE OF FORCE A. UN Charter B. The Caroline Case C. Recent Shifts in the Law Governing the Use of Force III. ANTICIPATORY SELF-DEFENSE AND COUNTER-PROLIFERATION: STOPPING THE BOMB BEFORE IT IS TOO LATE A. Iraq B. Syria C. Iran 1. Peaceful Purpose or Weapons Program? 2. The "Existential Threat" to Israel 3. Non-Military Means of Dispute Settlement i. Diplomacy and Negotiations ii. Sanctions iii. Stuxnet iv. UN Security Council IV. WHY CHANGE?--MAINTAINING THE LEGITIMACY OF INTERNATIONAL LAW AND RESPONDING TO SHIFTING TIDES V. NEW DOCTRINE PROPOSED A. The Framework B. Applying the Doctrine to Iran C. Why This Standard? Benefits, Caveats, and Distinctions from the Strategy VI. CONCLUSION I. INTRODUCTION
On October 20, 2010, during a panel entitled Diplomacy and the Use of Force to Prevent Nuclear Weapons Proliferation at Georgetown University Law Center, Dr. Hans Blix, Chair of the Weapons of Mass Destruction Commission, stated that it would be a violation of international law to take military action against Iran in response to its pending nuclear weapons program because such action would fail to comply with the international law doctrine of self-defense against imminent attack from the United Nations (UN) Charter and the Caroline Doctrine. (1) Dr. Blix's position is arguably true. (2) However, if so, the international community should revisit this doctrine in the context of nuclear counter-proliferation to ensure that there is a legal and practical doctrine of international self-defense.
If the current standard from the UN Charter and the Caroline doctrine would not allow for an attack for the sake of nuclear counter-proliferation except in the face of an imminent nuclear attack, the current standard is insufficient for the purposes of responding to newly emerging nuclear states because of the unique nature of nuclear weapons. Therefore, the Caroline doctrine should be modified for purposes of counter-proliferation to take into account the practical inability to sufficiently eliminate a nuclear threat once a nuclear weapons program by an aggressor state has been fully developed.
This Note explores room for such modification of the self-defense standard. Part I discusses the current standard under international law by analyzing the UN Charter provisions on the use of force, the Caroline doctrine, and the recent attempts to shift the doctrine in the 2002 National Security Strategy of the United States of America. Part II looks at state practice, by examining past and possible future claimed uses of self-defense in the context of nuclear counter-proliferation. This includes the Israeli strikes on the Iraqi nuclear reactor in 1981 and the Syrian nuclear facilities in 2007, as well as an in-depth analysis of a possible future strike on the Iranian nuclear program. Part III explains why the international law standard should be changed. Finally, Part IV lays out a proposed modification to the international law standard for anticipatory self-defense and explains the benefits and limitations of this new proposed standard.
CURRENT STANDARD UNDER INTERNATIONAL LAW FOR THE USE OF FORCE
The international law standard governing the use of force is primarily derived from the UN Charter. However, the customary international law doctrine of anticipatory self-defense from the Caroline case plays an important role as well. While the United States has recently tried to expand the acceptable use of self-defense in the National Security Strategy of the United States of America in 2002, it has mostly failed to gain international acceptance for this theory.
Following World War II, one of the primary purposes for the creation of the UN was to prevent future wars. (3) Consistent with this purpose, Article 2(4) of the Charter declares that "[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." (4) The Charter, however, creates two exceptions to this general ban on the threat or use of force: collective action after authorization by the UN Security Council (5) and self-defense. (6)
Under Article 42 of the Charter, should the Security Council "determine the existence of any threat to the peace, breach of the peace, or act of aggression" (7) and find that measures not involving the use of armed force are insufficient to eliminate such threat, breach, or aggression, the Security Council "may take such action by ... forces as may be necessary to maintain or restore international peace and security." (8)
The second exception to the general prohibition on the use of force is for self-defense. Article 51 of the UN Charter says, "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defen[s]e if an armed attack occurs against a Member of the United Nations ..." (9) While there has been much debate about the meaning of this provision, (10) particularly in terms of whether an armed attack is necessary to trigger the right to self-defense, there has been acquiescence to the notion that Article 51 does not disturb the customary international law doctrine regarding the inherent right of self-defense from the Caroline case. (11)
The Caroline Case
The customary international law doctrine of anticipatory self-defense developed following the Canadian insurrection of 1837. During the insurrection, the Canadian rebel forces were procuring arms and recruiting support from Americans. (12) In an attempt to stop the U.S. support of the rebels, British and Canadian officials requested that New York officials restrain the rebels. (13)
While the Canadian battery was attacked by rebel forces, the Caroline, a privately owned U.S. boat, began to service the rebel forces, bringing volunteers and materials to Navy Island. (14) In an attempt to stop the Caroline from supplying the rebels, the commander of the Upper Canadian militia sent the Royal Navy to destroy the vessel. (15) The Royal Navy found the Caroline docked in New York, forcibly seized the ship and destroyed it, killing two people. (16)
Following the attack, a chain of correspondence was initiated between British and U.S. government officials, which culminated in the development of the Caroline doctrine. (17) While the British claimed that the action against the Caroline was an act of self-defense, Daniel Webster, U.S. Secretary of State, said that the attack on the Caroline could not "be justified by any reasonable application or construction of the right of self-defen[s]e under the laws of nations." (18) While recognizing the existence and necessity of an international right of self-defense, Webster maintained that "the extent of this right is a question to be judged ... by the circumstances of each particular case; and when its alleged exercise has led to the commission of hostile acts, within the territory of a power at peace, nothing less than a clear and absolute necessity can afford ground of justification." (19)
Webster enunciated what has since been adopted as the international standard of anticipatory self-defense: that, in order to justify an intervention into the sovereign territory of another country, there must be a "necessity of self-defen[s]e, instant, overwhelming, leaving no choice of means, and no moment for deliberation ... [T]he act justified by the necessity of self-defen[s]e, must be limited by that necessity." (20) As international law continued to develop throughout the 19th and 20th centuries, the twin principles of necessity (which includes a requirement that an attack be imminent) and proportionality, as espoused by Webster in the Caroline case, have become the accepted prerequisites for the use of force against another country in anticipatory self-defense. (21)
Recent Shifts in the Law Governing the Use of Force
The international law standard governing the use of force has been shifting in the last decade, particularly with the U.S. invasion of Iraq. The 2002 National Security Strategy of the United States of America ("Strategy") emphasized the option to use preemptive military force to counter emerging threats to the United States that have yet to fully materialize, particularly in the context of terrorist organizations or rogue states acquiring weapons of mass destruction (WMD). (22) In particular, Section III of the Strategy states that the government will "defend the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders ... [W]e will not hesitate to act ... if necessary, to exercise our right of self-defense by acting preemptively against such terrorists." (23)
Section V of the Strategy addressed the imminence requirement for acts of self-defense under the Caroline doctrine (though the Strategy did not specifically reference this doctrine by name):
We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and potentially, the use of weapons of mass destruction. (24) The Strategy continued by saying that "[w]e must be prepared to stop rogue states and terrorist clients before they are able to threaten or use weapons of mass destruction against the United States or our allies ... we must deter and defend against the threat before it is unleashed." (25)
Section V thus attempted to frame the U.S. invasion of Iraq within the existing international law regime, even though it simultaneously endeavored to greatly expand the range of acceptable uses of force. In reality, the theory pronounced in the Strategy lies much closer to preemptive--or, more likely, preventive--self-defense than to anticipatory self-defense. (26) The...