The Duty to Prevent Revisited

Some time ago, I wrote an op-ed which noted that "Lee Feinstein, a former deputy director of the policy planning staff at the State Department and now Clinton's top national security staffer, wrote in the January/February 2004 issue of Foreign Affairs that 'the biggest problem with the Bush preemption strategy may be that it does not go far enough.'" The article, which can be found here, was cowritten with Anne-Marie Slaughter who objected to the way I used that quotation and my general construal of her piece. Since the same clause from the Foreign Affairs article then wound up in a Frank Rich column I thought it'd be best to get in tough with Professor Slaughter and clarify her views rather than debate the quote and its context. She's written back (speaking for herself):

I would not rule out unilateral action under any circumstances; a nation that had chosen to try unilaterally to stop the genocide in Rwanda in the face of both global and regional inaction would be hard to condemn. Similarly, it is imaginable that the United States or any other nation could conclude that it had absolutely no choice but to use force to defend its vital interests. But the entire point of our article was to minimize the likelihood of either of these situations ever occuring by embracing doctrines in the humanitarian and the non-proliferation area that would spur non-military collective action early in the game and would ensure global or at least regional authorization of force if it came to that. It is worth remembering that Kofi Annan himself told the General Assembly in September 2003, after the invasion of Iraq: ““It is not enough to denounce unilateralism, unless we also face up squarely to the concerns that make some States feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action. We must show that those concerns can, and will, be addressed effectively through collective action.” Lee and I had been running a roundtable for the American Society of International Law and the Council on Foreign Relations called "Old Rules, New Threats" for several years before the invasion of Iraq; this article was the outgrowth of a lot of that thinking.

As far as the desirability of collective action, almost certainly short of force, to check nuclear proliferation I'm in complete agreement. I also should say that I definitely agree that "the United States or any other nation could conclude that it had absolutely no choice but to use force to defend its vital interests." This, though, is one of those cases where I think the phrase "vital interests" obscures more than it reveals. Unilateral force to secure vital interests? Sure. But which interests are the vital ones? The UN Charter recognizes the inherent right of a state to act in self-defense. If Hungary starts launching air strikes on Ukraine tomorrow, no number of Security Council vetoes change the fact that it's legitimate for Ukraine to fight back. Similarly, the Charter recognizes a right to collective self-defense. If a country is attacked somewhere, the United States is within our rights to come to that country's assistance. And, indeed, we're arguably obliged to come to their assistance.

Slaughter's proposal is that we should try to develop new international legal norms that would strengthen collective commitments to non-proliferation rules (no disagreement from me) but also legitimate unilateral action in certain case to pursue non-proliferation goals. My strong guess is that if pursued in good faith this project is just going to prove unworkable. One doesn't want to see a new interpretation of international law gain strength that would legitimize an Arab League preventive attack on Israel and its nuclear program. Nor would one want to see a unilateral Indian assault on Pakistan.

If you go back and read the original Foreign Affairs article, the authors seem to be aware of this problem and include language designed to make sure that those cases aren't covered. Which is good. But it's also, I suspect, too transparent. The international community isn't going to accept a new principle of international law that's very narrowly tailored to US policy priorities. But the US doesn't actually want to unleash unilateral preventive war as a major force in the world in general, it's only a tool we would want to have under narrowly tailored rules or else (as in the Bush doctrine) as a straightforward matter of double-standards.

That said, understood the way Slaughter lays it out in the blockquote above, I'm not sure there'd be any harm in trying to explore the possibilities in this direction and negotiation and dialogue on this general issue should, if pursued in good faith (an important proviso), generate something useful on the international scene.