...Standards II. LEGAL IMPEDIMENTS TO USING FORCE IN SELF-DEFENSE IN RESPONSE TO THE NEW SECURITY THREATS A. Terrorism 1. The absence 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 underlying affinity of interests of the Permanent Members with respect to the new security threats creates at least an opportunity to enhance the effectiveness of the collective security machinery of the U.N. Charter and to promote increased global security.

I begin in Part I by outlining the legal regime governing the use of force; I note that this regime is a two-tiered structure that employs both rules and standards to regulate the use of force. Part II then summarizes the challenges that the new security threats of terrorism and weapons of mass destruction proliferation pose to that regime; it identifies specific impediments under existing international law to the unilateral use of force (9) to counter those threats. Part III then examines a number of the doctrinal developments or adjustments that national strategists or academic commentators have proposed to address this gap and to provide broader legal authority for the unilateral use of force to respond to the new security threats.

In Part IV, I turn to the possible role of collective security in countering the new security threats. Here I focus on the viability of relying on the collective security machinery. In that Part, I review the policies and positions of the Permanent Members of the Security Council to demonstrate the growing convergence of their interests in seeking to combat the new security threats; I note that these shared interests have already led to important new forms of collective cooperation among the Permanent Members. Part V considers why collective security not only offers a promising underlying basis for addressing the dangers of terrorism and WMD proliferation, but also is strongly preferable to expanding the legal bases for the unilateral use of force. I conclude in Part VI by identifying specific adjustments to the traditional foreign policy perspectives of the Permanent Members, as well as other practical steps they can take, that would enhance the viability of the collective security apparatus in countering the new security threats.

I. THE USE OF FORCE: THE LAW

Evaluating the claim that the current international security apparatus is inadequate to address the new security threats requires a brief review of the existing regime. The law and institutions governing the use of force are found in the U.N. Charter.

A. The Prohibition on the Use of Force

The international law rules and institutional arrangements governing the use of force are on their face quite straightforward. Today's security structure was erected after the catastrophic suffering of the Second World War. Against that backdrop, the architects of the post-war regime sought to ban the use of force to the greatest extent possible. Thus, Article 2(4) of the U.N. Charter declares: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." (10) International law commentators have generally understood this prohibition on force to be comprehensive. As Louis Henkin has observed: "Article 2(4) clearly intended to outlaw resort to traditional war, but the framers obviously excluded also other uses of force[], whether or not in declared war, whether or not in all-out hostilities." (11)

B. Exceptions to the Prohibition on the Use of Force

Fresh from their bitter experience during the Second World War, however, the drafters of the U.N. Charter were not starry-eyed idealists. The League of Nations and the 1928 Kellogg-Briand Pact outlawing war had failed to prevent aggression and global war. As such, the Charter's founders well understood that states might opt to use force despite formal legal prohibitions on their doing so. Accordingly, the U.N. Charter provided two permissible exceptions to Article 2(4)'s prohibition on the use of force: self-defense and collective security measures taken under the authority of the Security Council.

1. Self-defense

Article 51 of the U.N. Charter embodies the right to use force in self-defense:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (12)

There are several key features to the Article 51 right of self-defense. (13) First, it is a unilateral right. A state requires no approval from any external body before it may avail itself of its sovereign right to defend itself. (14) Second, Article 51 allows a state not only to defend itself but also to join others, such as partners in security alliances, in collectively repelling an armed attack launched by another state. Third, the drafters of the Charter contemplated that the right of self-defense would be an interim response; states would be entitled to use force only until such time as the collective security machinery had responded satisfactorily to the initiation of hostilities.

Fourth, and most important, the right of self-defense recognized in the Charter is limited to situations in which an "armed attack" has occurred. In this regard, Article 51, read together with Article 2(4), represents a limitation on the pre-existing customary international law right to use force. Prior to the adoption of the Charter, the existence of an "armed attack" was not a threshold requirement for the use of force. Rather, the right to use force was deemed an inherent element of state sovereignty, and states could resort to force in response to any breach of their legal rights, at least where efforts to resolve the dispute through diplomatic means had failed. (15) Moreover, the concept of self-defense was broadly understood to cover situations in which a state perceived that its "'security' [was] threatened"; (16) at the dawn of the Second World War, customary international law was generally considered to permit the exercise of anticipatory self-defense in the face of imminent danger. (17) However, the prohibition on the use of force in Article 2(4) of the Charter, combined with the limitation on the right of self-defense under Article 51 to cases of armed attacks, served--at least at the time of the Charter's adoption in 1945--to prohibit anticipatory self-defense. (18)

2. Collective security

The second exception to Article 2(4)'s prohibition on the use of force arises when the United Nations authorizes armed collective security measures. Under the Charter, the United Nations Security Council is assigned "primary responsibility for the maintenance of international peace and security." (19) The Security Council is comprised of fifteen states: the five Great Powers that prevailed in the Second World War--the United States, the United Kingdom, France, Russia, and China--as well as ten other states elected to serve on the Council for two-year terms. (20) Decisions of the Security Council on nonprocedural matters require the affirmative vote of at least nine of its fifteen members, "including the concurring votes of the five permanent members." (21)

Acting pursuant to its authority under Chapter VII of the Charter, the Security Council is empowered to "determine the existence of any threat to the peace, breach of the peace, or act of aggression." (22) In such circumstances, the Security Council "shall ... decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." (23) Measures available under Article 41 are those "not revolving the use of armed force" to give effect to the Security Council's decisions. (24) In addition to nonforcible measures, Article 42 of the Charter empowers the Security Council to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations." (25)

All members of the United Nations have "agree[d] to accept and carry out the decisions of the Security Council in accordance with the present Charter." (26) Accordingly, Chapter VII determinations of the Council are legally binding on all U.N. member states. Moreover, the Charter provides that "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." (27)

The use of force under the collective security regime differs from the exercise of the right of self-defense in several critical ways. First, it is not a unilateral right. Rather, "[r]ecourse to such measures is to be the exclusive prerogative of the United Nations, acting in concert." (28) In view of the capacity of any of the five Permanent Members of the Security Council to veto a proposed resolution authorizing the use of force, this means that collective security measures are available only when there is unanimity among the Permanent Members in favor of such measures. Second, in contrast to the right of self-defense, the prior commission of an armed attack is not a prerequisite to the exercise of force under Security Council authority. Rather, the Security Council may authorize measures, including the use of force, merely in the face of "threats" to international peace and security, (29) including threats that may not yet be imminent. (30) The Security Council, moreover, has largely unfettered power to determine what events and developments constitute such a threat. (31)

C. Use of Force: A Regime of Rules and Standards

In choosing the conditions under which force could lawfully be used, the Charter's founders were faced with a choice between rules and standards, (32) a choice that presents a familiar set of issues to lawyers. (33) By specifying in advance what conduct is permissible, rules are clear and easy to apply, and thus provide a high degree of predictability both for those who implement them and those regulated by them. (34) Standards, in comparison, allow a broader range of factors to be taken into account by the decisionmaker at the point of application, but make implementation more burdensome. (35) The choice between rules and standards also, and perhaps most importantly, involves the allocation of decision-making authority between different institutions or actors in a legal system, (36) and thus implicates potential principal-agent issues. (37)

For the law governing the use of force, the Charter established a two-tiered system employing both rules and standards. (38) With respect to the unilateral use of force, the Charter adopts a rule. Force is generally prohibited and may be used by a state only in self-defense in the event of an armed attack. As Michael Glennon notes, "Drawing the line [at which force could be used] at the precise point of an armed attack, an event the occurrence of which could be objectively established, served the purpose of eliminating uncertainty." (39) In terms of decision-making authority, the lawmakers who promulgated the law, i.e., the states parties to the Charter, retained authority to determine when force may be used unilaterally; the only question to be resolved by the affected state at the time the rule is applied is the factual question of whether an armed attack has occurred.

As lawmakers, the founders of the Charter recognized, however, that this regime might be underinclusive, in that it might prohibit the use of force in circumstances in which it might be appropriate. They recognized, in short, the potential "error costs" of the right of self-defense as formulated in Article 51 in light of the underlying norms of international peace and security they sought to advance. But the pre-Charter regime governing the use of force, in which states were entitled to use force unilaterally either to vindicate their legal rights or to counter perceived threats to their security, had shown itself to be susceptible to erroneous and bad-faith implementation. Because this standards-based approach had led to the overinclusive and excessive use of force, the Charter's founders were unwilling to delegate substantial discretion to individual states to act as agents to determine the conditions trader which they might on their own authority use force.

Instead, the Charter supplemented the potentially underinclusive rule in Article 51 by permitting the use of force to counter threats to international peace and security through the Charter's collective security apparatus. Because the assessment of what kind of threat justifies the use of force requires an open-ended and highly contextualized determination that can be made only at the time of application, the Charter's collective security regime employs a standards-based criterion. (40)

Since the Charter's founders did not specify in advance what threats to international peace and security justify the use of force, they needed to select an agent, other than the state considering the use of force, to apply the law. Chapter VII empowers the Security Council to serve as the international community's agent in applying its background policy of allowing force to be used to address threats to international peace and security. In doing so, the Charter employs procedural safeguards to reduce the dangers of erroneous or bad-faith implementation of this standard. (41) With respect to erroneous assessments, the requirements of Security Council deliberations and approval regarding the use of force to address a particular threat are likely to produce a better-informed decision, since all Security Council states, and not just the state that perceives itself to be threatened, will contribute to the assessment of the threat based on data in their possession. (42) The procedural requirements of collective deliberation and information sharing among Council members thus can serve "to correct false beliefs." (43)

The role of a collective representative body is even more significant in reducing the risk that agents will use force for inappropriate motives. The open-ended and subjective nature of the "threat to international peace and security" standard is sufficiently flexible to be invoked by states that seek to use force for reasons other than the normative goals for which the law was promulgated, including as a pretext for aggression. (44) There is accordingly a significant risk of agency costs in delegating the authority to use force in response to threats to individual states. The problem is particularly acute where the actor is applying the standard to its own conduct. (45) Designating the Security Council as the collective agent to implement the normative goals of the lawmaking states that adopted the Charter reduces the dangers that such a broad standard will be abused by individual states. The requirement that at least nine of the fifteen members of the Security Council, and all five of its Permanent Members, must agree before force may be used to respond to security dangers that have not yet produced armed attacks serves to align the interests of the parties to the Charter as principals and the Security Council as the agent that applies it. The selection of a collective body like the Council--as opposed to individual states--as the agent thus provides an important safeguard to "reduce opportunistic use of force," (46) and to ensure that the use of force under that standard is exercised only "in the common interest." (47)

II. LEGAL IMPEDIMENTS TO USING FORCE IN SELF-DEFENSE IN RESPONSE TO THE NEW SECURITY THREATS

The new security threats present a significant challenge to the legal regime governing the use of force, particularly to the unilateral use of force by states to counter these threats. The international criticism generated by such uses of force illustrates the difficulty of reconciling the prevailing legal regime with the new security environment. This Part reviews the legal impediments to using force in self-defense against terrorist or WMD threats under the current legal regime.

A. Terrorism

1. The absence of an "armed attack"

Uses of force by terrorist actors may not necessarily constitute "armed attacks" that justify the use of self-defense under Article 51. According to the International Court of Justice (ICJ) in the Nicaragua case, not all measures that "involve a use of force" are sufficiently "grave" to qualify as an armed attack. (48) In evaluating violence by insurgents in a civil war, the court stated that the key factor was whether their action, "because of its scale and effects, would [be] classified as an armed attack, rather than as a mere frontier incident had it been carried out by regular armed forces." (49) Although the considered view is that the events of September 11, in view of the devastation they wrought, qualified as "armed attacks," (50) not all violent acts committed by terrorists--such as assassinations, hijackings of airplanes, or bombings or shootings taking few lives or causing relatively modest property damage--will be of sufficient scale and effect to constitute armed attacks.

2. Territorial integrity of the state where force is used

Using force against terrorists highlights a significant tension in the current international legal regime between a state's right to use force against nonstate actors that have attacked it and the territorial integrity of the state where those terrorists are located. The fact that a terrorist attack is perpetrated by a nonstate actor, rather than by a state, does not necessarily bar the victim state from invoking its right of self-defense. Article 51 refers to the right of "self-defence if an armed attack occurs against a Member of the United Nations." It is not limited to circumstances in which an armed attack is launched by another state. (51)

Nevertheless, a state's use of force against terrorist groups abroad also amounts to a use of force against the state where the terrorists are located when they are attacked. The prohibition in Article 2(4) on the use of force is not limited to uses of force directed against institutions of the state, but to force "against the territorial integrity or political independence of any state." As Schachter writes, "any coercive incursion of armed troops into a foreign state without its consent impairs that State's territorial integrity," (52) and thus violates Article 2(4). In short, the U.N. Charter embodies a tension between the right of a state that is the victim of an armed attack by nonstate terrorists, on the one hand, to exercise the unilateral right of self-defense, and the right of the state where those terrorists reside, on the other, not to be subject to the use of force as long as that state does not itself launch an armed attack.

3. Problematic justifications: State responsibility and harboring

a. State responsibility

In some cases, the difficulty of using force against a state that has not itself launched an armed attack may be surmounted if the acts of terrorists are attributable to the state itself. According to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts ("Draft Articles on State Responsibility") produced by the International Law Commission of the United Nations, the conduct of a nonstate actor "shall be considered an act of a State under international law" if the actor "is in fact acting on the instructions of, or under the direction or control of, that State." (53)

The precise degree of control a state must exercise over nonstate actors to establish such de facto responsibility is not entirely settled under international law. In the Nicaragua case, the International Court of Justice rejected Nicaragua's assertion that the United States was legally responsible for the conduct of the so-called contra groups engaged in armed insurrection against the Nicaraguan government, even though the United States had "largely financed, trained, equipped, armed and organized" the contras, (54) and exercised "general control" over them. (55) The court formulated what has become known as the "effective control" standard for de facto responsibility, requiring the sponsoring state to have "effective control of the military or paramilitary operations in the course of which the alleged violations were committed." (56)

More recently, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia adopted a lower standard of control for attribution of the acts of nonstate actors to a sponsoring government. "Overall control," the Appeals Chamber held, was sufficient to make a state responsible for the acts of nongovernment actors, at least in the context of armed conflict. (57) Such overall control exists when a state "has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group." (58) It is not additionally necessary, the Appeals Chamber held, for the sponsoring state to "issue instructions ... for the commission of specific acts contrary to international law." (59)

Under either the "effective control" or "overall control" standard, however, it will typically be difficult to attribute terrorist acts to a sponsoring state. In many instances, the governments of states from which terrorists operate may be affirmatively antithetical to, or at least not share, the ideological goals of terrorist groups present in their territory. (60) In other cases, such as those in which the terrorist group is engaged in an armed insurgency against the government, or the government's security forces otherwise lack the capacity to suppress the terrorist group, there is little the host-state government can do to prevent actions of the terrorist group. (61) Even in the case of Afghanistan, it is difficult to attribute responsibility for the September 11 attacks by Al Qaeda to the Taliban or the state of Afghanistan under either the effective or overall control standards. The Taliban did not seem to have exercised a high degree of control over Al Qaeda, and Al Qaeda was not highly dependent on the Taliban for financing or supplies. Rather, the Taliban essentially made Afghanistan's territory available for Al Qaeda--with which it shared strong ideological ties--to pursue its activities independently. (62)

b. Harboring terrorists as a basis for the use of force

Even where terrorist acts are not attributable to a state, the use of force against terrorist actors in other states could be defended on alternative legal theories, particularly where the state is harboring or supporting the terrorists. Even though a state with limited control over an armed group operating from its territory may not be deemed responsible for that group's attacks against another state, this does not mean that the harboring state is blameless. The General Assembly has declared that every state has a duty to refrain from "acquiescing in organized activities within its territory directed towards the commission" of forcible "acts of civil strife or terrorist acts in another State." (63) Lillich and Paxman, in their seminal 1977 review of the duties of states to control terrorist groups, concluded that states must "prevent and suppress such subversive activity against foreign Governments as assumes the form of armed hostile expeditions," (64) and that international law obligates states to exercise "due diligence" to prevent injuries to aliens caused by terrorists. (65)

The difficulty with this analysis is not the proposition that governments violate customary international law by harboring terrorists. They do. But unless the state exercises the required degree of control over a terrorist group, a violation of the duty not to harbor terrorist groups is legally distinct from the violent acts carried out by the terrorists themselves. The significance of this distinction, of course, is that only a violation of a state's Article 2(4) duty not to engage in a use of force amounting to an armed attack gives rise to the target state's right to use force in self-defense. Since the adoption of the Charter, states may no longer use force by way of reprisal in response to breaches of other legal obligations owed to them, including the duty of states not to allow their territories to be used in a manner injurious to the interests of other states. (66) A state's breach of its obligations not to harbor terrorists would entitle the victim state to demand cessation, to claim reparation, or to seek other remedies available under international law. Under current law, however, a breach of that duty would not entitle the victim state to use force against the harboring government. (67)

4. International assessment of claims of self-defense against terrorism

Although the U.S. invocation of the right of self-defense in response to the September 11 attacks has not provoked much critical commentary, this is an exceptional case. The international community has generally been critical of the use of force in self-defense against nonstate terrorists. Such criticism suggests that the international community favors the territorial inviolability of the states charged with harboring terrorists over the self-defense rights of victims of terrorist attacks.

Before September 11, 2001, the international community sharply criticized Israeli attacks motivated by the presence of nonstate terrorists in other states on three separate occasions. In the first such case, Israel in 1968 attacked the Beirut airport in response to a violent attack two days earlier by a terrorist organization against an Israeli El Al airliner at the Athens airport. Israel's attack was unanimously condemned as a violation of the U.N. Charter. (68) The Security Council effectively rejected Israel's claim that Lebanon "had assumed responsibility for the activities of terror organisations." (69)

Similarly, Israel's invasion of Lebanon in 1982, following attacks against Israeli territory by terrorists operating from southern Lebanon, (70) met with strong international criticism. Although the Security Council did not expressly condemn Israel's use of force, the General Assembly left no doubt that it considered Israel's action unlawful. (71) A General Assembly resolution adopted by a vote of 127-2 characterized Israel's use of force as "acts of aggression." (72)

In 1985, after the Palestine Liberation Organization (PLO) attacked Israelis in third-party countries, Israel responded with air strikes against the PLO headquarters in Tunisia. The Security Council "[c]ondemn[ed] vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct...." (73) The Council's reference to aggression "against Tunisian territory" appears to reflect the view that even though Israel's attack was directed at the PLO, and not at Tunisian state institutions, it was nevertheless a violation of Tunisia's inviolability and Tunisia's right not to be subject to the use of force. (74)

Prior U.S. assertions of the right to use force in self-defense against terrorist attacks have also met with skepticism in the United Nations. In 1986, following the bombing of a night club in West Berlin that resulted in the death of an American soldier and the wounding of a large number of other U.S. servicemen, the United States attacked "terrorist-related targets" in Libya. (75) Nine Security Council members voted in favor of a proposed resolution that would have condemned the U.S. attack as a violation of the U.N. Charter, but it was defeated by the negative votes of three Permanent Members. (76)

Even after September 11, 2001, the international community has continued to express considerable doubt about claims that the right of self-defense entitles states to use force against terrorists in another state's territory. In October 2003, following a terrorist suicide bombing at a beachfront restaurant in Haifa, Israel attacked an alleged terrorist training camp at Ein Saheb, Syria, with guided missiles. During the Security Council discussion, ten of the fifteen Council members condemned or characterized Israel's attack as a violation of international law, of Syria's sovereignty, or of acceptable standards of behavior. (77)

The Security Council took a more neutral stance regarding the recent Israeli use of force against Hezbollah forces in Lebanon following Hezbollah's July 12, 2006 attack on Israel. The Council did not expressly affirm or condemn Israel's action. Instead, the Council called for an "immediate cessation" to both attacks by Hezbollah and military operations by Israel. (78)

In short, although the Security Council referred to the right of self-defense in a preambular clause (79) in Resolution 1368, which condemned the September 11 attacks, the Charter does not clearly authorize the use of force in self-defense in response to terrorist acts by nonstate actors located on the territory of other states. Where force has been used against the territory of states from which terrorists operate, but to which the terrorists' conduct is not legally attributable, the international community has generally been skeptical of claims that the use of force was a justifiable exercise of the right of self-defense. (80)

B. The WMD Threat

The unilateral use of force in self-defense against a state seeking to acquire weapons of mass destruction also is likely to be highly problematic under the current legal regime governing the use of force.

1. A problematic justification: Anticipatory self-defense

The most plausible rationale for the unilateral use of force against a state perceived to present a WMD threat under the prevailing use of force regime is the doctrine of anticipatory self-defense. (81) Despite the language in Article 51 recognizing the right of self-defense "if an armed attack occurs," many states and commentators assert that a state need not await its adversary's "first, perhaps decisive, military strike" before it may use force to protect itself. (82) Currently, there is reasonably widespread support for the notion that states may use force when a threatened armed attack is imminent and no other means would thwart it. (83) Could the use of force against states that present a WMD threat be justified under this doctrine of anticipatory self-defense?

Advocates of a right of anticipatory self-defense differ on the theory underlying the asserted right. (84) Whether they affirm the existence of the right as a reserved inherent right, or as a manifestation of an evolving interpretation of the Charter, however, proponents of the right have traditionally subjected it to requirements comparable to those derived from The Caroline Case. (85) This means that if force may be used in anticipatory self-defense, it may be used only where force is necessary to prevent an adversary's attack ("leaving no choice of means"), and where the attack to be prevented is imminent (the need to use force is "instant" and leaves "no moment for deliberation"). (86)

The recent use of force by the United States against Iraq demonstrates the difficulty of satisfying this traditional standard for anticipatory self-defense in confronting WMD threats. Controversy continues to swirl around the strength of the evidence regarding the severity and imminence of the threat presented by Iraq which the United States relied on, in 2003, in deciding to use force. Even so, it is difficult to imagine any but the most partisan observers concluding that the U.S. use of force against Iraq satisfied the requirement of imminence or immediacy associated with the traditional doctrine of anticipatory self-defense. George J. Tenet, while still Director of Central Intelligence, emphasized that the intelligence community's October 2002 National Intelligence Estimate, a key basis for the assessment by U.S. policymakers of the dangers posed by Iraq's WMD programs,

never said there was an "imminent" threat. Rather, [U.S. intelligence analysts] painted an objective assessment for our policymakers of a brutal dictator who was continuing his efforts to deceive and build programs that might constantly surprise us and threaten our interests. (87)

Similarly, President Bush, in his January 2003 State of the Union address detailing the threat posed by Iraq's WMD programs, did not assert that the United States faced an imminent attack by Iraq. To the contrary, he took issue with the notion that the United States was forbidden from acting "until the threat is imminent." (88) The President's speech serves as a clear indication that the attack the United States would unleash two months later against Iraq could not be justified as necessary to counter an imminent attack. As such, the Iraq case highlights the difficulty of justifying the unilateral use of force against WMD threats on the doctrine of anticipatory self-defense under its traditional formulation.

2. International assessment of claims of self-defense against WMD threats

The legality of the U.S. invasion of Iraq has been widely challenged both in the international community (89) and by legal scholars. (90) Because the United States justified the use of force principally on the basis of its interpretation of the relevant Security Council resolutions, and not on the doctrine of anticipatory self-defense, it may be difficult to draw generalizations about the lawfulness of using force to confront states, like Iraq, that present a threat to others because they possess--or seek to acquire--WMD. The reaction of the international community in a comparable case, however, suggests that the existence of a WMD threat is not by itself viewed as sufficient to justify the use of force in self-defense by those states that perceive themselves to be endangered by it.

In 1981 Israeli forces attacked a nuclear reactor near Baghdad that Israel feared was part of...

NOTE: All illustrations and photos have been removed from this article.



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