Pre-emption, Deterrence, and Self-Defence: A Legal and Historical Assessment

Abstract

The policy of the United States, outlined in the 2002 National Security Strategy, whereby the US claims a right under international law to engage in pre-emptive use of force to prevent a rogue state's development of nuclear weapons, or any weapons of mass destruction (WMD), is unnecessary and therefore unlawful under customary international law of self-defence. This conclusion is reached through a comprehensive and intensive assessment of the normative reactions of politically effective actors to China's development of nuclear weapons during a two-year period between the Cuban Missile Crisis and China's first test in October 1964. While pre-emptive use of force against China, a rogue state, was considered by both the United States and most likely by the Soviet Union, neither used force to prevent it developing nuclear weapons. Since a policy of pre-emptive use of force was unnecessary for either state's self-defence, it would have been unlawful under customary international law. Given that the current strategic scenario of states vis-à-vis rogue states is the same under most circumstances, notwithstanding the existence of international terrorist networks, the article concludes that the proposed claim of the United States is, prima facie, unnecessary to its self-defence, and therefore unlawful under customary international law of self-defence. It shifts the burden of proof to policymakers claiming that all rogue states can be lawfully prevented through pre-emptive use of force from acquiring nuclear weapons, to establish that a particular state cannot be deterred from the use of nuclear weapons. Though the preventive war claim of the US National Security Strategy 2002 may turn out to be an effective strategic bluff in limiting WMD proliferation, the wisdom of the threat should not be confused with the illogic of preventive war.

Notes

¹ The author wishes to thank Professor Michael Reisman for his advice and guidance on the legal methodology used in the article and Professor John Lewis Gaddis for his emphasis on the strategic considerations underlying the Cold War policies of the United States, the Soviet Union, and Communist China in relation to each other. Any errors or omissions are solely the fault of the author.

² Wedgwood (2003, 584) argued that ‘a given regime might have a record of conduct so irresponsible and links to terrorist groups so troubling that the acquisition of WMD capability amounts to an unreasonable danger that cannot be abided’. John C. Yoo (2003, 575) asserted that ‘international law permitted the use of force against Iraq in anticipatory self-defence because of the threat posed by an Iraq armed with WMD and in potential cooperation with international terrorist organisations’. In the aftermath of the war in Iraq, Yoo maintained that ‘[rogue s]tates that have withdrawn from the international system, have few ties to the international economy, and repress their civilian populations to maintain dictatorships may also prove substantially undeterrable through methods short of force’ (2004, 749).

³ Resolution 678 authorized the use of force against Iraq during the first Gulf War. Resolution 687 provided for a ceasefire on the condition that Iraq demonstrates that it has fully eliminated its WMD programmes. Resolution 1441 declared that Iraq had violated the ceasefire condition, and, according to the US, reauthorized the use of force to disarm Iraq of WMD.

⁴ ‘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’.

⁵ The NSS describes rogue states as those which: ‘[1.] brutalize their own people and squander their national resources for the personal gain of the rulers; [2.] display no regard for international law, threaten their neighbors, and callously violate international treaties to which they are party; [3.] are determined to acquire weapons of mass destruction, along with other advanced military technology, to be used as threats or offensively to achieve the aggressive designs of these regimes; [4.] sponsor terrorism around the globe; and [5.] reject basic human values and hate the United States and everything for which it stands’.

⁶ Anatoly Dobrynin, the Soviet Ambassador to the US, wrote that ‘[t]hose days revealed the mortal danger of a direct armed confrontation of the two great powers, a confrontation headed off on the brink of war thanks to both sides’ timely and agonizing realization of the disastrous consequences' (1995, 93).

⁷ The latter's disintegration culminated on 25 December 1991 due to a set of complex reasons well discussed in Gaddis (1998).

⁸ Nuclear weapons and other WMDs will be treated the same for the purposes of this essay, since their strategic impact on issues of international security and national self-defence is the same.

⁹ The main causes of the split appear to be the following: (1) Khrushchev's denunciation of Stalin's policies and cult of personality in a speech in February 1956 to the 20th Congress of the Communist Party of the Soviet Union, which was an indirect attack on Mao, who greatly admired and emulated Stalin; (2) the Soviet Union's hesitancy in suppressing the Hungarian uprising in November 1956, viewed in China as a threat to the Communist movement; (3) the superiority that Mao felt relative to Khrushchev; and (4) China's perception that the Soviet Union was trying to control it through proposals to construct radio stations on China's territory and to establish a joint Soviet–Chinese submarine flotilla.

¹⁰ For memoirs of the Soviet Chairman of the Communist Party, Soviet Minister of Foreign Affairs, and Soviet Ambassador to the United States, respectively, see Khruschev (1974), Gromyko (1989), and Dobrynin (1995).

¹¹ Carl Bildt (2004), former prime minister of Sweden, recently observed that ‘[i]t is also highly likely that the Soviet leadership at some point looked into the possibility of pre-emptive strikes in order to prevent China from gaining an operational nuclear capability’.

¹² Christine Gray (2002, 447) notes that ‘[t]he uncertainties at its heart increase doubts as to the legality of the radical new doctrine’.