1 Glennon, Michael J., Why the Security Council Failed, Foreign Aff., May/June 2003, at 16–18, 24 Google Scholar. The Iraq war in the face of a deeply divided Security Council was the culmination, Glennon argues, of earlier trends that eroded the UN Charter. Id. at 22–23. Anthony Arend also contends that “[f]or all practical purposes, the UN Charter framework is dead.” Clark Arend, Anthony, International Law and the Preemptive Use of Military Force, Wash. Q., Spring 2003, at 89 CrossRefGoogle Scholar, 101.

2 Glennon, supra note 1, at 18–21,25–26. The Security Council’s disagreement over Iraq, Glennon argues, reflects deeper structural, political, and cultural differences that will continue to prevent Council unity in the future.

3 The United States, Britain, and Spain withdrew the so-called second resolution in the face of a French threat to veto it and a broader lack of support. Even the second resolution fell short of an explicit authorization of force. It would, however, have affirmed that Iraq had failed to take the final opportunity to disarm afforded by Resolution 1441. See U.S.-British Draft Resolution Stating Position on Iraq, N.Y. Times, Feb. 25, 2003, at A14.

4 Neither the United Kingdom nor Australia invoked self-defense as a legal justification for military action against Iraq. See UK Attorney General Lord Peter Henry Goldsmith, Legal Basis for Use of Force Against Iraq (Mar. 17, 2003), available at <http://www.ukonline.gov.uk>; see also the Australian Attorney General’s Department and the Department of Foreign Affairs and Trade, Memorandum of Advice on the Use of Force Against Iraq (Mar. 18, 2003), available at <http://www.smh.com.au/articles/2003/03/19/1047749818043.html>. Nor did the United States invoke its inherent right of self-defense under Article 51 of the UN Charter in the legal justification it submitted to the UN Security Council. Letter Dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2003/351 (2003) (arguing that” [t]he actions being taken are authorized under existing Council resolutions, including its resolutions 678 (1990) and 687 (1991).”). It is significant that despite references to preemption in President Bush’s speech to the nation on the eve of war, the United States declined to present such a legal rationale to the Security Council.

5 See Lobel, Jules & Rattier, Michael, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 AJIL 124, 150–52 (1999)Google Scholar; Wedgwood, Ruth, The Enforcement of Security Council Resolution 68 7: The Threat of Force Against Iraq’s Weapons of Mass Destruction, 92 AJIL 724 (1998)CrossRefGoogle Scholar.

6 Lobel & Ratner, supra note 5, at 150–51. This use of force was in response to Iraq’s obstruction of inspections and was preceded by statements by the president of the Security Council denouncing Iraq’s actions as a “material breach” of Resolution 687 and warning of “serious consequences” for “continued defiance.” See id, at 151; Wedgwood, supra note 5, at 727. The UN secretary-general subsequently stated that the military action “was carried out in accordance with a mandate from the Security Council under resolution 678 (1991)” and “was in accordance with the resolutions of the Security Council and the Charter of the United Nations.” Transcript of Press Conference by Secretary-General, Boutros Boutros-Ghali, Following Diplomatic Press Club Luncheon in Paris on 14January, UN Doc. SG/SM/4902/Rev.l, at 1 (1993).

7 SCRes. 1205, para. 1 (Nov. 5,1998); Lobel & Ratner, supra note 5, at 154; see also Wedgwood, supra note 5, at 726–28.

8 SC Res. 1441, paras. 1–2 (Nov. 8, 2002).

9 Id., paras. 1, 4.

10 Id., para. 13.

11 Id., para. 4.

12 Id., para. 12.

13 Jean-David Levitte, France, Germany and the U.S.: Putting the Pieces Back Together, Address at the Council on Foreign Relations 14 (Mar. 25, 2003), available at <http://www.cfr.org/publication.php?id=5774>. In Kosovo, NATO members used force in response to the deteriorating humanitarian situation there without seeking Council authorization in the face of the publicly stated opposition of Russia and China. See Stromsefh, Jane E., Rethinking Humanitarian Intervention: The Case for Incremental Change, in Humanitarian Intervention: Ethical, Legal, and Political Dilemmas 234 (Holzgrefe, J. L. & Keohane, Robert O. eds. 2003)Google Scholar.

14 Even that resolution, consistent with Britain’s long-standing position on authority to use force under Resolution 678 in response to Iraqi “material breach” of 687 and subsequent resolutions, simply affirmed that Iraq had failed to take the final opportunity afforded by Resolution 1441 to comply with its disarmament obligations. See supra note 3.

15 Blair, Tony, PM Statement Opening Iraq Debate (Mar. 18, 2003), available at <http://www.number-10.gov.uk/ output/Page3294.asp>..>Google Scholar

16 Id. at 10. Blair continued:

Id.

17 Whether better diplomacy could have led to Security Council agreement is a hard question to answer. See Kessler, Glenn & Allen, Mike, U.S. Missteps Led to Failed Diplomacy, Wash. Post, Mar. 16, 2003, at A15 Google Scholar; Weisman, Steven R., A Long, Winding Road to a Diplomatic Dead End, N.Y. Times, Mar. 17, 2003, at A1 Google Scholar.

18 For discussion of the UN and U.S. response in the 1991 Gulf war and in Korea, see Stromseth, Jane E., Rethinking War Powers: Congress, the President, and the United Nations, 81 GEO. L.J. 597, 621–55 (1993)Google Scholar.

19 For a discussion of the nonintervention rule in the context of the debate over humanitarian intervention, see Roberts, Adam, The So-Called “Right” of Humanitarian Intervention, 3 Y.B. Int’l Hum. L. 3, at 6–7, 49–51 (2000)Google Scholar; Stromseth, supra note 13, at 247. Louis Henkin put it well: “The occasions and the causes of war remain. What has become obsolete is the notion that nations are as free to indulge it as ever, and the death of that notion is accepted in the Charter.” Henkin, Louis, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL 544, 545 (1971)Google Scholar. Henkin was writing in response to Franck, Thomas M., Who Killed Article 2(4) ? or: Changing Norms Governing the Use of Force by States, 64 AJIL 809 (1970)CrossRefGoogle Scholar.

20 Abram Chayes, The Cuban Missile Crisis: International Crises and the Role of Law 102 (1974). Chayes argues mat international law operates in the following three ways to shape and orient decision making regarding the use of force: (1) law as constraint, (2) law as justification, and (3) law as organization. Law is only one factor, among many, that influences the consideration of options. As part of a state’s decision-making process, law can shape and “constrain” choices, Chayes argues, not by “dictating] conduct so much as orient[ing] deliberation, ordering] priorities, guidfing] within broad limits.” Id. Law as justification involves a process of snowing that a decision can be reconciled with a set of applicable norms. Finally, law as organization involves the organizational setting in which a decision occurs, including the allocation of jurisdiction and decision-making power among different actors, such as states, regional organizations, and international organizations. As Chayes writes, “institutional structures that are the product of law can be as important as rules, and more so in organizing and channeling decision.” Id.

21 Id. at 103.

22 An illuminating discussion is found in the remarks of James Steinberg, Panel on the Role of Legal Oversight in National Security Policy, 2002 Annual Meeting of the American Society of International Law, available on tape from the American Society of International Law library.

23 See Barabak, Mark Z., Showdown with Iraq: The Times Pott; Many Desire UN. Backing for War on Iraq, L.A. Times, Feb. 9, 2003, at 1 Google Scholar; Merzer, Martin, Unilateral Iraq Attack Losing Support; Most Americans Favor Multinational Coalition, U.N. OK, Milwaukee J. Sentinel, Jan. 12, 2003, at 3A Google Scholar; Millar, Frank, Blair Says Public Will Support War If Iraq Flouts UN, Irish Times, Jan. 14, 2003, at 9 Google Scholar. While this may, in some cases, reflect a preference for acting with the strong support of other countries more than a particular awareness of the UN Charter’s rules, arguments about acting consistently with international law played a particularly prominent role in the public debate in Britain. See, e.g., Roberts, Adam, Law: The Case For War: Adam Roberts on Why Military Action Against Iraq Can Be Legally Justified, Guardian, Sept. 17, 2002, at 16 Google Scholar; Allott, Philip & Dashwood, Alan, Letter to the Editor, Times (London), Mar. 19, 2003, at 23 Google Scholar.

24 Henkin, supra note 19, at 544; see also Baker, James E., When Lawyers Advise Presidents in Wartime: Kosovo and the Law of Armed Conflict, 55 Naval War Coll. Rev. 11 (2002), available at <http://purl.access.gpo.gov/GPO/LPS17060>Google Scholar.

25 While he is insightful and provocative, I take issue, for example, with Michael Glennon’s narrow reading of the scope of the Security Council’s authority under Chapter VII to respond to threats to the peace. Glennon, Michael J., Limits of Law, Prerogatives of Power: Interventionism After Kosovo 101–43 (2001)CrossRefGoogle Scholar.

26 Britain’s Lord Halifax in 1945 stressed the importance of giving the United Nations and its members the flexibility to deal with new situations that could not be foreseen. As he explained:

Lord Halifax, Verbatim Minutes of First Meeting of Commission I, UN Doc. 1006, June 15, 1945, in United Nations Conference on International Organization Selected Documents 529, 537 (1946). Moreover, rather than defining the terms “threat to the peace, breach of the peace, or act of aggression” in Article 39 of the UN Charter, the Charter’s founders left it to the Security Council to make these judgments in light of concrete circumstances. Russell, Ruth, A History of the United Nations Charter 464–65, 669–72 (1958)Google Scholar.

27 See Fisler Damrosch, Lori, Introduction and Concluding Reflections, in Enforcing Restraint: Collective Intervention in Internal Conflicts 12–13, 356–59 (Fisler Damrosch, Lori ed., 1993)Google Scholar.

28 See SC Res. 1368 (Sept. 12,2001), 40 ILM 1277 (2001); Statement by the North Adantic Council, Press Release 124 (Sept. 12,2001),40ILM 1267 (2001), also available at <http://www.nato.int/docu/pr/2001/p01–124e.htm>. The Security Council’s affirmation of the right of self-defense in response to the September 11th terrorist attacks was a significant development given earlier disagreements over uses of force in response to terrorist acts. See Byers, Michael, Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change, 11 J. Pol. Phil. 171, 177–79 (2003)Google Scholar; Franck, Thomas M., Editorial Comment: Terrorism and the Right of Self-Defense, 95 AJIL 839 (2001)CrossRefGoogle Scholar.

29 See Stromseth, supra note 13, at 237–38, 246–55, 271–72.

30 Annan launched initiatives to encourage the Security Council to take effective action in response to severe human rights violations. See Stromseth, supra note 13, at 261–262. Nongovernmental groups have also sought ways to reconcile the Charter’s human rights and nonintervention norms. See, e.g., Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (2001). For an argument that the human rights and security sides of the UN should be brought together, see Anne-Marie, Slaughter, A Chance to Reshape the U.N., Wash. Post, Apr. 13, 2003, at B7 Google Scholar.

91 For a healthy dose of perspective from someone who has seen the United Nations up close for many years, see the interview with Urquhart, Brian, Disputes Within the UN Security Council Over Its History, National Public Radio, Mar. 6, 2003 Google Scholar.

32 See President Bush, George W., Commencement Address at the United States Military Academy, West Point, June 1, 2002, 38 Google Scholar Weekly Comp. Pres. Doc. 944 (June 10, 2002), available at <http://www.whitehouse.gov/news/releases/2002/06/20020601–3.html>(“If we wait for threats to fully materialize, we will have waited too long We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge [O]ur security will require . . . preemptive action when necessary to defend our liberty and to defend our lives.”).

33 As the National Security Strategy of the United States of America explains: “[N]ew deadly challenges have emerged from rogue states and terrorists... and the greater likelihood that they will use weapons of mass destruction against us, make [s] today’s security environment more complex and dangerous We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends . . . . We must deter and defend against the threat before it is unleashed.” National Security Strategy of the United States of America 13–14 (Sept. 17, 2002) (Section V, Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction), available at <http:// www.whitehouse.gov/nsc/nss.pdf> [hereinafter National Security Strategy].

34 Id. at 15. The National Security Strategy argues that” [f]or rogue states,” weapons of mass destruction “are tools of intimidation and military aggression against their neighbors. These weapons may also allow these states to attempt to blackmail the United States and our allies to prevent us from deterring or repelling the aggressive behavior of rogue states.” Id. While” [t] he United States will not use force in all cases to preempt emerging threats, nor should nations use preemption as a pretext for aggression... the United States cannot remain idle while dangers gather.” Id. As the President put it in the Introduction to the National Security Strategy: “[A]s a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed.”

35 Introduction to id.

36 The State Department legal adviser subsequently offered an interpretation of the legal basis for preemptive military action that sought to place it more clearly within parameters of anticipatory self-defense. See William H. Taft IV, Legal Adviser, Department of State, The Legal Basis for Preemption, published by the Council on Foreign Relations, Nov. 18,2003, available at <http://www.cfr.org/publication.php?id=5250>. Taft wrote: “The President’s National Security Strategy relies upon the same legal framework applied to the British in Caroline and to Israel in 1981. The United States reserves the right to use force preemptively in self-defense when faced with an imminent threat. While the definition of imminent must recognize the threat posed by weapons of mass destruction and the intentions of those who possess them, the decision to undertake any action must meet the test of necessity. After the exhaustion of peaceful remedies and a careful, deliberate consideration of the consequences, in the face of overwhelming evidence of an imminent threat, a nation may take preemptive action to defend its nationals from unimaginable harm.” Id. at 5–6 (emphasis added). But the boundaries of the Bush administration’s doctrine—as articulated in the National Security Strategy and by the President and other high officials—are unclear and potentially more far-reaching. While it is true that the preemption doctrine focuses on “the particular issue of rogue states seeking to acquire WMD,” Walter B. Slocombe, Force, Pre-emption and Legitimacy, 45 Survival 117, 124 (2003), the circumstances in which the administration envisions taking preventive military action remain open-ended: The United States may act, for instance, “before threats have fully materialized.” Condoleezza Rice, Wriston Lecture, Dr. Condoleezza Rice Discusses President’s National Security Strategy (Oct. 1,2002), available at <http://www.whitehouse.gov/news/releases/2002/10/print/20021001–6.html>. Rice did add some qualifications: “[T]his approach . . . does not give a green light—to the United States or any other nation—to act first without exhausting other means, including diplomacy The treat must be very grave. And the risks of waiting must far outweigh the risks of action.” But, as discussed in the National Security Strategy, the doctrine does not require an actual or an imminent armed attack. National Security Strategy, supra note 33, at 15.

37 For a more wide-ranging survey of global public opinion in the aftermath of the 2003 Iraq war, discussing, among other things, attitudes toward the United States and its foreign policy, see Pew Research Center for the People & the Press, Views of A Changing World 2003 (June 3, 2003), available at <http://people-press.org/reports/display.php3?ReportID=185>.

38 As discussed in the National Security Strategy, the doctrine would apply even if there were no imminent armed attack. More precisely what the administration means by “imminent threat” or “grave threat” and whether the administration would be prepared to present a situation to the Security Council in the first instance, when circumstances permit, has yet to be clarified.

39 See Michael Reisman, W., Assessing Claims to Revise the Laws of War, 97 AJIL 82, 89 (2003)Google Scholar:

See also Daalder, Ivo, Policy Implications of the Bush Doctrine on Preemption (Nov. 16, 2002), available at <http://www.cfr.org/publication.php?id=5251>>Google Scholar (“The doctrine of preemption . . . [i]f taken seriously by others . . . will exacerbate the security dilemma among hostile states, by raising the incentive of all states to initiate military action before others do. The result is to undermine whatever stability might exist in a military standoff.”).

40 For incisive analysis, see Luck, Edward, Making the World Safe for Hypocrisy, N.Y. Times, Mar. 22, 2003, at A11.Google Scholar

41 Id.; see also Glennon, supra note 1, at 18–20. ‘

42 See Nye, Joseph S. Jr., The Paradox of American Power: Why the World’s Only Superpower can’t Go it Alone 158–63 (2002)Google Scholar.

43 SC Res. 1483 (May 22,2003) (adopted by a vote of 14–0). Nevertheless, the deep scars left by the intense discord over Iraq will take a long time to heal. See Henneberger, Melinda, Weight of the World, Newsweek, May 26, 2003, at 33–37 Google Scholar.

44 See Reisman, supra note 39, at 82; Glennon, supra note 1, at 31.

45 UN Charter Art. 51.

46 See Schachter, Oscar, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1634–35 (1984)Google Scholar (arguing that a limited right of anticipatory self-defense to imminent attack is consistent with Article 51 of the UN Charter, citing the criteria set forth by U.S. Secretary of State Daniel Webster in the Caroline case); see also Clarkarend, Anthony & Beck, Robert J., International Law and the Use of Force 71–79 (1993)Google Scholar (discussing differing views regarding anticipatory self-defense, but concluding that it is not prohibited).

47 The ANZUS security alliance originally involved Australia, New Zealand, and the United States, but today it involves active defense commitments only between Australia and the United States. In 1986, as a result of disagreement over New Zealand’s stance on nuclear warships in its ports, the United States unilaterally suspended its obligations to New Zealand under the ANZUS treaty, and New Zealand’s role is described as “dormant.” See Peter, Luke, New Zealand’s Dormant Role in ANZUS Unchanged Since 80s-PM, Christchurch Press, Sept. 20, 2001, at 3 Google Scholar. After the September 11th attacks, Australia invoked the collective self-defense provisions of the ANZUS treaty for the first time in the alliance’s fifty-year history. See australianpolitics.com, Howard Government Invokes ANZUS Treaty (Sept. 14, 2001), at <http://www.australianpolitics.com/news/2001/01–09–14c.shtml>. See Art. IV of Security Treaty (ANZUS), Sept. 1, 1951, 3 UST 3420, 131 UNTS 83 (entered into force Apr. 29, 1952).

48 See Agreement between the United States and Japan concerning the Treaty of Mutual Cooperation and Security, Jan. 19, 1960, 11 UST 1632, 373 UNTS 186 (entered into force June 23, 1960).

49 See, e.g., Nonproliferation of Weapons of Mass Destruction, A G8 Declaration (June 3,2003), available at <http://www.g8.fr/evian/english/navigation/2003_g8_summit/summit_documents.html>.

50 It is one thing for the United States—and other states—to keep “preemption” as an option in the event of extreme circumstances that go beyond anticipatory self-defense in response to an imminent attack; it is another to make it the centerpiece of a publicly proclaimed strategic doctrine. See Michele Flournoy & Vinca LaFleur, Quick-Stick Doctrine, WASH. POST, June 18, 2002, at A19.

51 The members of NATO, the Rio Pact, and Australia under the ANZUS treaty all invoked the collective self-defense provisions of their respective alliances in response to the September 11th attacks. See supra notes 28 and 47; Meeting of Consultation of Ministers of Foreign Affairs, Resolution on Terrorist Threat to the Americas (Sept. 21, 2001) (invoking relevant provisions of the Rio Treaty), 40 ILM 1273 (2001), also available at <http://www.oas.org/oaspage/crisis/RC.24e.htm>.

52 Because terrorists generally provide no warning and are not deterrable in the way that state actors might be, disrupting terrorist networks before they can attack and preventing them from acquiring weapons of mass destruction is necessary to exercising a meaningful right of self-defense. In the case of Al Qaeda, its previous attacks and clear policies indicate an ongoing plan to attack and raise a clear presumption of future attacks. More generally, because of terrorists’ disregard for the rules of international law and their use of stealth and deception to attack innocents, less certainty regarding the imminence or precise time and place of their attack is needed to act in self-defense. Working cooperatively with states, when possible, to disrupt terrorist cells on their territory nevertheless remains critically important.

53 During his trip to Europe in May 2003, President Bush launched an initiative for agreed rules and procedures concerning interdiction of weapons of mass destruction in transit. See Remarks by the President to the People of Poland, May 31,2003, available at <http://www.whitehouse.gov/news/releases/2003/05/print/20030531–2.html>. The United States is working with a number of countries on this effort, which would involve a coordinated use of national laws. David E. Sanger, Cracking Down on the Terror-Arms Trade, N.Y. Times, June 15, 2003, at 4.

54 The more difficult issue posed by the Bush administration’s “preemption” doctrine concerns the question of preemptive use of force to prevent “rogue states” from acquiring weapons of mass destruction. Here, in the absence of an imminent threat of attack, it would be hard to justify such action legally within the right of self-defense under the UN Charter as currently understood. The practical and operational challenges of preemption in this context are also considerable. See Flournoy & LaFleur, supra note 50; Slocombe, supra note 36, at 126–27. In the case of North Korea, the United States has, in fact, emphasized its desire to work multilaterally and diplomatically to address the situation. The UN Security Council has authority, under Article 39 of the UN Charter, to take enforcement action in response to “threat[s] to the peace,” although whether, in specific cases, the Council will be able to agree on appropriate action remains to be seen.

55 SC Res. 1373 (Sept. 28,2001), paras. 1–2. In Resolutions 1267,1390, and their progeny, moreover, the Security Council has imposed sanctions on the Taliban, Osama bin Laden, and Al Qaeda. See Stromseth, Jane E., The Security Council’s Counter-Terrorism Role: Continuity and Innovation, in 98 ASIL Proc. (forthcoming 2003)Google Scholar.

56 SC Res. 1373, supra note 55, para. 2(a).

57 For a discussion of the CTC’s work, see Rosand, Eric, Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight Against Terrorism, 97 AJIL 333 (2003)CrossRefGoogle Scholar; Rostow, Nicholas, Before and After; The Changed UN Response to Terrorism since September 11th, 35 Cornell Int’l L.J. 101, 108–112 (2003)Google Scholar. Spain subsequently became chair of the CTC. The CTC has a Web site that, among other things, provides a matrix of counterterrorism assistance, <http://www.un.org/sc/ctc>.

58 See Durch, William J., Keeping the Peace: Politics and Lessons of the 1990s, in in Peacekeeping, American Politics, and the Uncivil Wars of the 1990s, at 1–34 (Durch, William J. ed., 1996)Google Scholar.

59 SC Res. 1483 (May 22,2003). The Security Council requested the secretary-general to appoint a special representative for Iraq, who, among other things, would coordinate “among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq” and “work[] intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognized, representative government of Iraq.” Id., paras. 8,8(c). Subsequently it has become clear that a number of countries are reluctant to contribute their forces to postconflict reconstruction without express Security Council authorization, and future UN resolutions on Iraq may provide for a more substantial UN role.

60 For contrasting positions, compare Glennon’s pessimistic assessment, supra note 1, with Anne-Marie Slaughter’s more optimistic view, supra note 30.

61 UN Charter Art. 23(1).

62 Id. (emphasis added).

63 Luck, supra note 40. Reform of the Council is an enormously difficult issue, but it must be tackled with more vigor given the trends that are eroding the Council’s effectiveness and credibility. See Lyman, Princeton N., Saving the UN Security Council—A Challenge for the United States, 2000 Max Planck Y.B. Un L. 127 Google Scholar.