My friend (and international law expert) Tony Arend has published a timely article on legality of the Bush Doctrine of preemptive use of force:
Although it is true that contemporary international law dealing with the recourse to force in self-defense does not adequately address the problem of WMD and terrorism, no clear legal standard has yet emerged to determine when preemptive force would be permissible in such cases. Some scholars have suggested standards, but it does not seem that either treaty law or custom has yet come to endorse one. ...
I would recommend the following approach: First, the administration should accept as a matter of policy the notion that preemptive force in self-defense should only be undertaken unilaterally if the Caroline criterion of imminence was met. Irrespective of the current status of international law on this question, such a policy would be less destabilizing, and it could contribute to a return to a more rule-based legal regime. Second, the administration should indicate that, as a matter of policy, the use of preemptive force should be undertaken in the absence of imminence only with the approval of the Security Council. Such a policy would ensure multilateralsupport for such action and would likely prevent the opening of the flood gates to unilateral preemptive action by other states. Third, the United States should acknowledge that existing international law relating to the use of force is highly problematic and seek, through the Security Council, to move toward the development of a legal regime that would be truly authoritative and controlling of state behavior. This may be a daunting task, and the United States might prefer that the law be left "in a fog," as Glennon has said. Nevertheless, if the legal regime for the recourse to force is to return to something more closely resembling a stable order, the United States?as the superpower in the international system?needs to take the lead both in acknowledging the deficiency in the current legal structure and in pointing the way to its improvement.
