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Forthcoming Symposium on “The US and International Law”, 15 European Journal of International Law (April, 2004).

Abstract

Absent a clear case of an armed attack, the UN Charter severely restricts the ability of individual states to react to what they perceive as their national security risks, relegating such a task to the collective decision-making of the Security Council. Contemporary global security risks pose serious challenges to this regime. Stopping terrorist groups and rogue regimes from obtaining weapons of mass destruction or ending incidents of mass atrocities against civilian populations often require swift and resolute collective responses. Not all those who can respond to such threats are willing to do so, and the collective response of the Security Council frequently proves ineffective. As the stronger military power, the US has both the ability and the motivation to provide the public good of global security unilaterally, while other countries rely on international law to explain their inaction. The so-called “Bush Doctrine,” which asserts an authority to act unilaterally and preemptively, can thus be understood as an earnest effort to respond to these security challenges. But this doctrine upsets the existing UN regime, and in turn creates other risks to global stability. This essay seeks to lay out the prevailing global security risks as a collective action problem. It assesses the tensions that exist between existing legal constraints on the use of unilateral force and the proposals for their modification, and evaluates the ramifications of such proposals.

Disciplines

International Law

Date of this Version

January 2005

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