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Neither Bush nor the “Jurisprudes”

Published online by Cambridge University Press:  27 February 2017

Richard N. Gardner
Richard N. Gardner*
Affiliation:
Columbia University
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Extract

Relations between the United States and most other countries, including major U.S. allies, have been severely strained during the past year by divergent opinions about the rules of international law governing the use of armed force. On the one side, the Bush administration has unveiled a new strategic doctrine asserting the right to use force preemptively against any country or terrorist group that could potentially threaten U.S. security. On the other side, most UN members have rejected the Bush doctrine as inconsistent with the traditional view that armed force can only be used when authorized by the Security Council or in self-defense against an armed attack. I will argue that neither the new Bush doctrine nor the strict interpretation of the “jurisprudes” represents good law or good policy. The new strategic environment, marked by suicidal terrorists and the spread of mass destruction weapons, requires a different approach.

Type
Agora: Future Implications of the Iraq Conflict
Information
American Journal of International Law , Volume 97 , Issue 3 , July 2003 , pp. 585 - 590
Copyright
Copyright © American Society of International Law 2003

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References

1 Bush, George W., Commencement Address at the United States Military Academy in West Point (June 1, 2002)Google Scholar, 38 Weekly Comp. Pres. Doc. 944, 946 (June 10, 2002).

2 The National Security Strategy of the United States of America 15 (Sept. 2002), available at <http://www.whitehouse.gov/nsc/nss.pdf>.

3 White House, Office of the Press Secretary, Transcript: National Security Strategy Seeks to Defend Peace, Prosperity: Press Background Briefing by a Senior Administration Official (Sept. 20, 2002) (on file with author).

4 Letter from Daniel Webster to Lord Ashburton (Aug. 6,1842), quoted in 2 John Bassett Moore, A Digest of International Law 412 (1906).

5 International Military Tribunal (Nuremberg), Judgment, 41 AJIL 172, 205 (1947).

6 Radio and Television Report to the American People on the Soviet Arms Buildup in Cuba, 485 Pub. Papers 806, 807 (Oct. 22, 1962).

7 For Chayes’s account of the treatment of self-defense, see Abram Chayes, The Cuban Missile Crisis: International Crises and the Role of Law 62–66 (1974) (analyzing two different versions of self-defense arguments under Article 51 of UN Charter and explaining why neither was officially embraced but rather was “repeatedly and consciously rejected”).

8 Kissinger, Henry A., Consult and Control: Bywords for Battling the New Enemy, Wash. Post, Sept. 16, 2002, at A19 Google Scholar.

9 Korematsu v. United States, 323 U.S. 214, 246 (1944).

10 SC Res. 687 (Apr. 3, 1991), 30 ILM 846 (1991).

11 SC Res. 678 (Nov. 29,1990), 29 ILM 1565 (1990).

12 SC Res. 1368 (Sept. 12, 2001), 40ILM 1278 (2001); Statement by NATO Secretary General, Lord Robertson (Oct. 2, 2001) reprinted in 40 ILM 1268 (2001).

13 SC Res. 1373 (Sept. 28,2001), 40 ILM 1278 (2001); see also SC Res. 1363 (July 30, 2001) (measures in respect of terrorist groups in Taliban-controlled Afghanistan).

14 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121,122, UN Doc. A/8028 (1970) (duty of states “to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed toward the commission of such acts”). See also Resolution on the Definition of Aggression, GA Res. 3314, UN GAOR, 29th Sess. (1974), Art. 3.

15 Goodhart, A. L., Some Legal Aspects of the Suez Situation, in Tensions in the Middle East 243, 259 (Thayer, Philip W. ed., 1958)Google Scholar.