THE USE OF FORCE AND CONTEMPORARY SECURITY THREATS: OLD MEDICINE FOR NEW ILLS?
INTRODUCTION: NEW THREATS AND THE CALL FOR NEW LAW
We live in dangerous times. The September 11, 2001 terrorist attacks against the World Trade Center and the Pentagon inflicted casualties and devastation not sustained on American soil since the Civil War. Exploiting the world's growing interdependence,
There is no doubt that international terrorism and the proliferation of weapons of mass destruction-which I refer to as the "new security threats"present the international community with major challenges. National security strategists and academic commentators alike agree that the new security environment is one in which states may increasingly need to confront threats to international peace with the use of force. Strong evidence supporting this assessment comes in the form of the initiation by the United States of two major military campaigns since October 2001 to counter the new security threats-one in Afghanistan to combat terrorism and the other in Iraq to combat the emergence of WMD capabilities in a dangerous state.
But if the international security environment has undergone a dramatic shift, the prevailing legal regime has not. The international law rules and institutional arrangements that today govern the international use of force are based on the norms and structures established in the U.N. Charter at the end of the second World War. For many observers, the failure of the international security architecture to change to keep pace with the evolving security climate is disturbing. Some states, in particular the United States, through their declared policies as well as their actions, have begun to question the viability of the existing international legal regime for countering the new security threats. They have begun to articulate new doctrines that deviate from the existing international security architecture so as to provide new legal justifications for using force.
Academic commentators have also addressed what they see as a growing gap between the international legal regime governing the use of force and the nature of today's international security threats. Anne-Marie Slaughter and William Burke-White, for example, argue that in order "[t]o respond adequately and effectively to the threats and challenges that are emerging in this new paradigm, we need new rules."1 Robert Turner, too, contends that the increased threats presented by international terrorism and the proliferation of weapons of mass destruction "demand a new paradigm" for assessing the legality of resort to force.2 Ruth Wedgwood has suggested that the law of selfdefense, which requires a state to "wait until an attack is launched before responding," is "ill-suited" to the new security threats.3 Richard Gardner agrees that the "new strategic environment, marked by suicidal terrorists and the spread of weapons of mass destruction, requires a different approach."4 Jane Stromseth also argues that "the rules and the system [governing the use of force] need refining and reform"5 and urges adjustments to our understanding of the right of self-defense and the role of regional arrangements in addressing today's urgent threats.6 John Yoo and Will Trachman declare more categorically that "[t]oday ... the United Nations' rules on the use of force have become obsolete"7 and that "[m]odern warfare demands that states enjoy more flexibility in the use of force than that permitted under a strict reading of the UN Charter's rules."8
In this Article, I argue that-contrary to widely held claims and assumptions-the structure of the existing international security architecture is not ill-suited to addressing the new security threats. Under its collective security powers, the U.N. Security Council may authorize force to respond to an act of aggression, a breach of the peace, or a threat to international peace and security. Because the new security threats-terrorism and WMD proliferation-undoubtedly qualify as threats to international peace and security, the Security Council possesses the authority under the current legal regime to authorize force to confront them.
Few, of course, would quarrel with the notion that the Security Council is empowered to use force to counter the new security threats. However, what commentators seem generally to believe-or at least to assume-is that the Council is in practice unlikely to respond to such threats. In this view, the capacity of any one of the five Permanent Members to block the use of force through the exercise of its veto power destroys the potential effectiveness of the collective security apparatus. This is particularly true given the perceived disunity, even rivalry, among the Council's Permanent Members.
I disagree. I contend that the nature of the new security threats and the common challenge they present to the Permanent Members should cause us to reconsider this prognosis for inevitable Security Council gridlock. Security Council inaction was to be expected under the international balance of power that prevailed during the Cold War era, when the Permanent Members either had competing interests over or were largely indifferent to most of the major international security threats that arose. The situation with the new security threats is quite different. International terrorism and the spread of weapons of mass destruction implicate and threaten the interests of all of the Council's Permanent Members. These threats are not a cause or result of great power conflict or rivalry; instead, the interests of the major powers in seeking to counter the new security threats are essentially in alignment. The Permanent Members accordingly have considerable incentive to reach shared understandings in both assessing the severity of terrorist and WMD-related threats and developing strategies-including potentially the use of force-to address them.
Under the circumstances, the widely held belief that the Charter's collective security apparatus is incompatible with today's geopolitical realities is too blunt. Undoubtedly, the prevailing rules governing the use of force were not designed with the new security threats in mind. Nevertheless, because the interests of the Permanent Members do not clash with respect to the goals of countering terrorism and WMD proliferation, the international security architecture is actually better suited to addressing these threats than it was to countering the conventional state-versus-state conflicts for which it was created. The underlying affinity of interests of the Permanent Members with respect to the new security threats creates at least an opportunity to enhance the effectiveness of the collective security machinery of the U.N. Charter and to promote increased global security.
I begin in Part I by outlining the legal regime governing the use of force; I note that this regime is a two-tiered structure that employs both rules and standards to regulate the use of force. Part II then summarizes the challenges that the new security threats of terrorism and weapons of mass destruction proliferation pose to that regime; it identifies specific impediments under existing international law to the unilateral use of force9 to counter those threats. Part III then examines a number of the doctrinal developments or adjustments that national strategists or academic commentators have proposed to address this gap and to provide broader legal authority for the unilateral use of force to respond to the new security threats.
In Part IV, I turn to the possible role of collective security in countering the new security threats. Here I focus on the viability of relying on the collective security machinery. In that Part, I review the policies and positions of the Permanent Members of the security Council to demonstrate the growing convergence of their interests in seeking to combat the new security threats; I note that these shared interests have already led to important new forms of collective cooperation among the Permanent Members. Part V considers why collective security not only offers a promising underlying basis for addressing the dangers of terrorism and WMD proliferation, but also is strongly preferable to expanding the legal bases for the unilateral use of force. I conclude in Part VI by identifying specific adjustments to the traditional foreign policy perspectives of the Permanent Members, as well as other practical steps they can take, that would enhance the viability of the collective security apparatus in countering the new security threats.
I. the use of force: the law
Evaluating the claim that the current international security apparatus is inadequate to address the new security threats requires a brief review of the existing regime. The law and institutions governing the use of force are found in the U.N. Charter.
A. The Prohibition on the Use of Force
The international law rules and institutional arrangements governing the use of force are on their face quite straightforward. Today's security structure was erected after the catastrophic suffering of the second World War. Against that backdrop, the architects of the post-war regime sought to ban the use of force to the greatest extent possible. Thus, Article 2(4) of the U.N. Charter declares: "All Members shall refrain in their international relations from the threat or use offeree against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."10 International law commentators have generally understood this prohibition on force to be comprehensive. As Louis Henkin has observed: "Article 2(4) clearly intended to outlaw resort to traditional war, but the framers obviously excluded also other uses of force[], whether or not in declared war, whether or not in all-out hostilities."11
B. Exceptions to the Prohibition on the Use of Force
Fresh from their bitter experience during the second World War, however, the drafters of the U.N. Charter were not starry-eyed idealists. The League of Nations and the 1928 Kellogg-Briand Pact outlawing war had failed to prevent aggression and global war. As such, the Charter's founders well understood that states might opt to use force despite formal legal prohibitions on their doing so. Accordingly, the U.N. Charter provided two permissible exceptions to Article 2(4)'s prohibition on the use of force: self-defense and collective security measures taken under the authority of the security Council.
1. Self-defense
Article 51 of the U.N. Charter embodies the right to use force in self-defense:
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.
There are several key features to the Article 51 right of self-defense.13 First, it is a unilateral right. A state requires no approval from any external body before it may avail itself of its sovereign right to defend itself. second, Article 51 allows a state not only to defend itself but also to join others, such as partners in security alliances, in collectively repelling an armed attack launched by another state. Third, the drafters of the Charter contemplated that the right of self-defense would be an interim response; states would be entitled to use force only until such time as the collective security machinery had responded satisfactorily to the initiation of hostilities.
Fourth, and most important, the right of self-defense recognized in the Charter is limited to situations in which an "armed attack" has occurred. In this regard, Article 51, read together with Article 2(4), represents a limitation on the pre-existing customary international law right to use force. Prior to the adoption of the Charter, the existence of an "armed attack" was not a threshold requirement for the use of force. Rather, the right to use force was deemed an inherent element of state sovereignty, and states could resort to force in response to any breach of their legal rights, at least where efforts to resolve the dispute through diplomatic means had failed.15 Moreover, the concept of self-defense was broadly understood to cover situations in which a state perceived that its "'security' [was] threatened";16 at the dawn of the second World War, customary international law was generally considered to permit the exercise of anticipatory self-defense in the face of imminent danger.17 However, the prohibition on the use efforce in Article 2(4) of the Charter, combined with the limitation on the right of self-defense under Article 51 to cases of armed attacks, served-at least at the time of the Charter's adoption in 1945-to prohibit anticipatory self-defense.18
2. Collective security
The second exception to Article 2(4)'s prohibition on the use of force arises when the United Nations authorizes armed collective security measures. Under the Charter, the United Nations security Council is assigned "primary responsibility for the maintenance of international peace and security."19 The security Council is comprised of fifteen states: the five Great Powers that prevailed in the second World War-the United States, the United Kingdom, France, Russia, and China-as well as ten other states elected to serve on the Council for two-year terms.20 Decisions of the security Council on nonprocedural matters require the affirmative vote of at least nine of its fifteen members, "including the concurring votes of the five permanent members."
Acting pursuant to its authority under Chapter VII of the Charter, the security Council is empowered to "determine the existence of any threat to the peace, breach of the peace, or act of aggression."22 In such circumstances, the security Council "shall... decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."23 Measures available under Article 41 are those "not involving the use of armed force" to give effect to the security Council's decisions. In addition to nonforcible measures, Article 42 of the Charter empowers the security Council to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."25
All members of the United Nations have "agree[d] to accept and carry out the decisions of the security Council in accordance with the present Charter."26 Accordingly, Chapter VII determinations of the Council are legally binding on all U.N. member states. Moreover, the Charter provides that "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."27
The use of force under the collective security regime differs from the exercise of the right of self-defense in several critical ways. First, it is not a unilateral right. Rather, "[r]ecourse to such measures is to be the exclusive prerogative of the United Nations, acting in concert."28 In view of the capacity of any of the five Permanent Members of the security Council to veto a proposed resolution authorizing the use of force, this means that collective security measures are available only when there is unanimity among the Permanent Members in favor of such measures. second, in contrast to the right of self-defense, the prior commission of an armed attack is not a prerequisite to the exercise of force under security Council authority. Rather, the security Council may authorize measures, including the use of force, merely in the face of "threats" to international peace and security, including threats that may not yet be imminent.30 The security Council, moreover, has largely unfettered power to determine what events and developments constitute such a threat.31
C. Use of Force: A Regime of Rules and Standards
In choosing the conditions under which force could lawfully be used, the Charter's founders were faced with a choice between rules and standards,32 a choice that presents a familiar set of issues to lawyers.33 By specifying in advance what conduct is permissible, rules are clear and easy to apply, and thus provide a high degree of predictability both for those who implement them and those regulated by them. Standards, in comparison, allow a broader range of factors to be taken into account by the decisionmaker at the point of application, but make implementation more burdensome.35 The choice between rules and standards also, and perhaps most importantly, involves the allocation of decision-making authority between different institutions or actors in a legal system,36 and thus implicates potential principal-agent issues.37
For the law governing the use of force, the Charter established a two-tiered system employing both rules and standards.38 With respect to the unilateral use of force, the Charter adopts a rule. Force is generally prohibited and may be used by a state only in self-defense in the event of an armed attack. As Michael Glennon notes, "Drawing the line [at which force could be used] at the precise point of an armed attack, an event the occurrence of which could be objectively established, served the purpose of eliminating uncertainty."39 In terms of decision-making authority, the lawmakers who promulgated the law, i.e., the states parties to the Charter, retained authority to determine when force may be used unilaterally; the only question to be resolved by the affected state at the time the rule is applied is the factual question of whether an armed attack has occurred.
As lawmakers, the founders of the Charter recognized, however, that this regime might be underinclusive, in that it might prohibit the use of force in circumstances in which it might be appropriate. They recognized, in short, the potential "error costs" of the right of self-defense as formulated in Article 51 in light of the underlying norms of international peace and security they sought to advance. But the pre-Charter regime governing the use of force, in which states were entitled to use force unilaterally either to vindicate their legal rights or to counter perceived threats to their security, had shown itself to be susceptible to erroneous and bad-faith implementation. Because this standards-based approach had led to the overinclusive and excessive use offeree, the Charter's founders were unwilling to delegate substantial discretion to individual states to act as agents to determine the conditions under which they might on their own authority use force.
Instead, the Charter supplemented the potentially underinclusive rule in Article 51 by permitting the use of force to counter threats to international peace and security through the Charter's collective security apparatus. Because the assessment of what kind of threat justifies the use of force requires an openended and highly contextualized determination that can be made only at the time of application, the Charter's collective security regime employs a standards-based criterion.40
Since the Charter's founders did not specify in advance what threats to international peace and security justify the use offeree, they needed to select an agent, other than the state considering the use of force, to apply the law. Chapter VII empowers the security Council to serve as the international community's agent in applying its background policy of allowing force to be used to address threats to international peace and security. In doing so, the Charter employs procedural safeguards to reduce the dangers of erroneous or bad-faith implementation of this standard.41 With respect to erroneous assessments, the requirements of security Council deliberations and approval regarding the use of force to address a particular threat are likely to produce a better-informed decision, since all security Council states, and not just the state that perceives itself to be threatened, will contribute to the assessment of the threat based on data in their possession.42 The procedural requirements of collective deliberation and information sharing among Council members thus can serve "to correct false beliefs.43
The role of a collective representative body is even more significant in reducing the risk that agents will use force for inappropriate motives. The open-ended and subjective nature of the "threat to international peace and security" standard is sufficiently flexible to be invoked by states that seek to use force for reasons other than the normative goals for which the law was promulgated, including as a pretext for aggression.44 There is accordingly a significant risk of agency costs in delegating the authority to use force in response to threats to individual states. The problem is particularly acute where the actor is applying the standard to its own conduct.45 Designating the security Council as the collective agent to implement the normative goals of the lawmaking states that adopted the Charter reduces the dangers that such a broad standard will be abused by individual states. The requirement that at least nine of the fifteen members of the security Council, and all five of its Permanent Members, must agree before force may be used to respond to security dangers that have not yet produced armed attacks serves to align the interests of the parties to the Charter as principals and the security Council as the agent that applies it. The selection of a collective body like the Council-as opposed to individual states-as the agent thus provides an important safeguard to "reduce opportunistic use of force,"46 and to ensure that the use of force under that standard is exercised only "in the common interest."47
II. LEGAL IMPEDIMENTS TO USING FORCE IN SELF-DEFENSE IN RESPONSE TO THE NEW secURITY THREATS
The new security threats present a significant challenge to the legal regime governing the use of force, particularly to the unilateral use of force by states to counter these threats. The international criticism generated by such uses of force illustrates the difficulty of reconciling the prevailing legal regime with the new security environment. This Part reviews the legal impediments to using force in self-defense against terrorist or WMD threats under the current legal regime.
A. Terrorism
1. The absence of an "armed attack"
Uses of force by terrorist actors may not necessarily constitute "armed attacks" that justify the use of self-defense under Article 51. According to the International Court of Justice (ICJ) in the Nicaragua case, not all measures that "involve a use offeree" are sufficiently "grave" to qualify as an armed attack.48 In evaluating violence by insurgents in a civil war, the court stated that the key factor was whether their action, "because of its scale and effects, would [be] classified as an armed attack, rather than as a mere frontier incident had it been carried out by regular armed forces."49 Although the considered view is that the events of September 11, in view of the devastation they wrought, qualified as "armed attacks,"50 not all violent acts committed by terrorists-such as assassinations, hijackings of airplanes, or bombings or shootings taking few lives or causing relatively modest property damage-will be of sufficient scale and effect to constitute armed attacks.
2. Territorial integrity of the state where force is used
Using force against terrorists highlights a significant tension in the current international legal regime between a state's right to use force against nonstate actors that have attacked it and the territorial integrity of the state where those terrorists are located. The fact that a terrorist attack is perpetrated by a nonstate actor, rather than by a state, does not necessarily bar the victim state from invoking its right of self-defense. Article 51 refers to the right of "self-defence if an armed attack occurs against a Member of the United Nations." It is not limited to circumstances in which an armed attack is launched by another state.51
Nevertheless, a state's use of force against terrorist groups abroad also amounts to a use of force against the state where the terrorists are located when they are attacked. The prohibition in Article 2(4) on the use of force is not limited to uses of force directed against institutions of the state, but to force "against the territorial integrity or political independence of any state." As Schachter writes, "any coercive incursion of armed troops into a foreign state without its consent impairs that State's territorial integrity,"52 and thus violates Article 2(4). In short, the U.N. Charter embodies a tension between the right of a state that is the victim of an armed attack by nonstate terrorists, on the one hand, to exercise the unilateral right of self-defense, and the right of the state where those terrorists reside, on the other, not to be subject to the use of force as long as that state does not itself launch an armed attack.
3. Problematic justifications: State responsibility and harboring
a. State responsibility
In some cases, the difficulty of using force against a state that has not itself launched an armed attack may be surmounted if the acts of terrorists are attributable to the state itself. According to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts ("Draft Articles on State Responsibility") produced by the International Law Commission of the United Nations, the conduct of a nonstate actor "shall be considered an act of a State under international law" if the actor "is in fact acting on the instructions of, or under the direction or control of, that State."53
The precise degree of control a state must exercise over nonstate actors to establish such de facto responsibility is not entirely settled under international law. In the Nicaragua case, the International Court of Justice rejected Nicaragua's assertion that the United States was legally responsible for the conduct of the so-called contra groups engaged in armed insurrection against the Nicaraguan government, even though the United States had "largely financed, trained, equipped, armed and organized" the contras,54 and exercised "general control" over them.55 The court formulated what has become known as the "effective control" standard for de facto responsibility, requiring the sponsoring state to have "effective control of the military or paramilitary operations in the course of which the alleged violations were committed."56
More recently, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia adopted a lower standard of control for attribution of the acts of nonstate actors to a sponsoring government, "Overall control," the Appeals Chamber held, was sufficient to make a state responsible for the acts of nongovernment actors, at least in the context of armed conflict.57 Such overall control exists when a state "has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group."58 It is not additionally necessary, the Appeals Chamber held, for the sponsoring state to "issue instructions ... for the commission of specific acts contrary to international law."59
Under either the "effective control" or "overall control" standard, however, it will typically be difficult to attribute terrorist acts to a sponsoring state. In many instances, the governments of states from which terrorists operate may be affirmatively antithetical to, or at least not share, the ideological goals of terrorist groups present in their territory.60 In other cases, such as those in which the terrorist group is engaged in an armed insurgency against the government, or the government's security forces otherwise lack the capacity to suppress the terrorist group, there is little the host-state government can do to prevent actions of the terrorist group.61 Even in the case of Afghanistan, it is difficult to attribute responsibility for the September 11 attacks by Al Qaeda to the Taliban or the state of Afghanistan under either the effective or overall control standards. The Taliban did not seem to have exercised a high degree of control over Al Qaeda, and Al Qaeda was not highly dependent on the Taliban for financing or supplies. Rather, the Taliban essentially made Afghanistan's territory available for Al Qaeda-with which it shared strong ideological ties-to pursue its activities independently.
b. Harboring terrorists as a basis for the use offeree
Even where terrorist acts are not attributable to a state, the use of force against terrorist actors in other states could be defended on alternative legal theories, particularly where the state is harboring or supporting the terrorists. Even though a state with limited control over an armed group operating from its territory may not be deemed responsible for that group's attacks against another state, this does not mean that the harboring state is blameless. The General Assembly has declared that every state has a duty to refrain from "acquiescing in organized activities within its territory directed towards the commission" of forcible "acts of civil strife or terrorist acts in another State."63 Lillich and Paxman, in their seminal 1977 review of the duties of states to control terrorist groups, concluded that states must "prevent and suppress such subversive activity against foreign Governments as assumes the form of armed hostile expeditions,"64 and that international law obligates states to exercise "due diligence" to prevent injuries to aliens caused by terrorists.65
The difficulty with this analysis is not the proposition that governments violate customary international law by harboring terrorists. They do. But unless the state exercises the required degree of control over a terrorist group, a violation of the duty not to harbor terrorist groups is legally distinct from the violent acts carried out by the terrorists themselves. The significance of this distinction, of course, is that only a violation of a state's Article 2(4) duty not to engage in a use of force amounting to an armed attack gives rise to the target state's right to use force in self-defense. Since the adoption of the Charter, states may no longer use force by way of reprisal in response to breaches of other legal obligations owed to them, including the duty of states not to allow their territories to be used in a manner injurious to the interests of other states.66 A state's breach of its obligations not to harbor terrorists would entitle the victim state to demand cessation, to claim reparation, or to seek other remedies available under international law. Under current law, however, a breach of that duty would not entitle the victim state to use force against the harboring government.67
4. International assessment of claims of self-defense against terrorism
Although the U.S. invocation of the right of self-defense in response to the September 11 attacks has not provoked much critical commentary, this is an exceptional case. The international community has generally been critical of the use of force in self-defense against nonstate terrorists. Such criticism suggests that the international community favors the territorial inviolability of the states charged with harboring terrorists over the self-defense rights of victims of terrorist attacks.
Before September 11, 2001, the international community sharply criticized Israeli attacks motivated by the presence of nonstate terrorists in other states on three separate occasions. In the first such case, Israel in 1968 attacked the Beirut airport in response to a violent attack two days earlier by a terrorist organization against an Israeli El Al airliner at the Athens airport. Israel's attack was unanimously condemned as a violation of the U.N. Charter.68 The security Council effectively rejected Israel's claim that Lebanon "had assumed responsibility for the activities of terror organisations."69
Similarly, Israel's invasion of Lebanon in 1982, following attacks against Israeli territory by terrorists operating from southern Lebanon,70 met with strong international criticism. Although the security Council did not expressly condemn Israel's use of force, the General Assembly left no doubt that it considered Israel's action unlawful.71 A General Assembly resolution adopted by a vote of 127-2 characterized Israel's use efforce as "acts of aggression."72
In 1985, after the Palestine Liberation Organization (PLO) attacked Israelis in third-party countries, Israel responded with air strikes against the PLO headquarters in Tunisia. The security Council "[c]ondemn[ed] vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct . . . . The Council's reference to aggression "against Tunisian territory" appears to reflect the view that even though Israel's attack was directed at the PLO, and not at Tunisian state institutions, it was nevertheless a violation of Tunisia's inviolability and Tunisia's right not to be subject to the use offeree.74
Prior U.S. assertions of the right to use force in self-defense against terrorist attacks have also met with skepticism in the United Nations. In 1986, following the bombing of a night club in West Berlin that resulted in the death of an American soldier and the wounding of a large number of other U.S. servicemen, the United States attacked "terrorist-related targets" in Libya.75 Nine security Council members voted in favor of a proposed resolution that would have condemned the U.S. attack as a violation of the U.N. Charter, but it was defeated by the negative votes of three Permanent Members.76
Even after September 11, 2001, the international community has continued to express considerable doubt about claims that the right of self-defense entitles states to use force against terrorists in another state's territory. In October 2003, following a terrorist suicide bombing at a beachfront restaurant in Haifa, Israel attacked an alleged terrorist training camp at Ein Saheb, Syria, with guided missiles. During the security Council discussion, ten of the fifteen Council members condemned or characterized Israel's attack as a violation of international law, of Syria's sovereignty, or of acceptable standards of behavior.77
The security Council took a more neutral stance regarding the recent Israeli use offeree against Hezbollah forces in Lebanon following Hezbollah's July 12, 2006 attack on Israel. The Council did not expressly affirm or condemn Israel's action. Instead, the Council called for an "immediate cessation" to both attacks by Hezbollah and military operations by Israel.78
In short, although the security Council referred to the right of self-defense in a preambular clause79 in Resolution 1368, which condemned the September 11 attacks, the Charter does not clearly authorize the use of force in selfdefense in response to terrorist acts by nonstate actors located on the territory of other states. Where force has been used against the territory of states from which terrorists operate, but to which the terrorists' conduct is not legally attributable, the international community has generally been skeptical of claims that the use efforce was a justifiable exercise of the right of self-defense.80
B. The WMD Threat
The unilateral use of force in self-defense against a state seeking to acquire weapons of mass destruction also is likely to be highly problematic under the current legal regime governing the use of force.
1. A problematic justification: Anticipatory self-defense
The most plausible rationale for the unilateral use of force against a state perceived to present a WMD threat under the prevailing use of force regime is the doctrine of anticipatory self-defense.81 Despite the language in Article 51 recognizing the right of self-defense "if an armed attack occurs," many states and commentators assert that a state need not await its adversary's "first, perhaps decisive, military strike" before it may use force to protect itself.82 Currently, there is reasonably widespread support for the notion that states may use force when a threatened armed attack is imminent and no other means would thwart it.83 Could the use of force against states that present a WMD threat be justified under this doctrine of anticipatory self-defense?
Advocates of a right of anticipatory self-defense differ on the theory underlying the asserted right.84 Whether they affirm the existence of the right as a reserved inherent right, or as a manifestation of an evolving interpretation of the Charter, however, proponents of the right have traditionally subjected it to requirements comparable to those derived from The Caroline case. This means that if force may be used in anticipatory self-defense, it may be used only where force is necessary to prevent an adversary's attack ("leaving no choice of means"), and where the attack to be prevented is imminent (the need to use force is "instant" and leaves "no moment for deliberation").86
The recent use of force by the United States against Iraq demonstrates the difficulty of satisfying this traditional standard for anticipatory self-defense in confronting WMD threats. Controversy continues to swirl around the strength of the evidence regarding the severity and imminence of the threat presented by Iraq which the United States relied on, in 2003, in deciding to use force. Even so, it is difficult to imagine any but the most partisan observers concluding that the U.S. use of force against Iraq satisfied the requirement of imminence or immediacy associated with the traditional doctrine of anticipatory self-defense. George J. Tenet, while still Director of Central Intelligence, emphasized that the intelligence community's October 2002 National Intelligence Estimate, a key basis for the assessment by U.S. policymakers of the dangers posed by Iraq's WMD programs,
never said there was an "imminent" threat. Rather, [U.S. intelligence analysts] painted an objective assessment for our policymakers of a brutal dictator who was continuing his efforts to deceive and build programs that might constantly surprise us and threaten our interests.
Similarly, President Bush, in his January 2003 State of the Union address detailing the threat posed by Iraq's WMD programs, did not assert that the United States faced an imminent attack by Iraq. To the contrary, he took issue with the notion that the United States was forbidden from acting "until the threat is imminent."88 The President's speech serves as a clear indication that the attack the United States would unleash two months later against Iraq could not be justified as necessary to counter an imminent attack. As such, the Iraq case highlights the difficulty of justifying the unilateral use of force against WMD threats on the doctrine of anticipatory self-defense under its traditional formulation.
2. International assessment of claims of self-defense against WMD threats
The legality of the U.S. invasion of Iraq has been widely challenged both in the international community89 and by legal scholars.90 Because the United States justified the use of force principally on the basis of its interpretation of the relevant Security Council resolutions, and not on the doctrine of anticipatory self-defense, it may be difficult to draw generalizations about the lawfulness of using force to confront states, like Iraq, that present a threat to others because they possess-or seek to acquire-WMD. The reaction of the international community in a comparable case, however, suggests that the existence of a WMD threat is not by itself viewed as sufficient to justify the use of force in self-defense by those states that perceive themselves to be endangered by it.
In 1981 Israeli forces attacked a nuclear reactor near Baghdad that Israel feared was part of an Iraqi nuclear weapons program aimed at destroying Israel.91 In doing so, Israel invoked its right of self-defense "within the meaning of this term in international law and as preserved also under the [United Nations] Charter."92 Despite the fact that a formal state of war existed between Israel and Iraq, and notwithstanding Israel's assertion that Iraq was "coldly planning [Israel's] nuclear obliteration,"93 the Security Council "strongly condemned]" Israel's actions as a clear violation of the U.N. Charter. Israel's self-defense claim failed, according to Thomas Franck, because it was "not able to demonstrate convincingly that there was a strong likelihood of an imminent nuclear attack by Iraq."95 The lesson is that under the law of self-defense-even assuming the Charter has developed to recognize a right of anticipatory self-defense-the gravity of a WMD-related threat does not obviate the requirement that a threatened state face an imminent attack before it is entitled to use force.
III. NEW DOCTRINES FOR NEW SECURITY THREATS
If, as the preceding Part suggested, contemporary international law prohibits or significantly limits the capacity of states to use of force to confront the new security threats, the question for many is whether it is the use of force or the law that is to be condemned. The conclusion for many commentators and some states is that existing international law cannot adequately address today's security threats.96 From this perspective, new international law norms must be developed to enable states to respond adequately to these threats.97
A. New Use of Force Doctrines: Terrorism
Terrorism presents substantially different challenges than the traditional state-to-state security threats that have been the principal focus of the rules governing the use of force. Terrorists operate in secrecy, often blending in with the civilian population, and typically attack using means other than large formations of conventionally armed troops. It is accordingly more difficult to detect in advance terrorist preparations to attack. In addition, terrorists typically do not control territory, and they have no population to defend, making terrorist attacks more difficult to deter through the threat of counterattack. These features of terrorism have led both strategists and commentators to propose, either explicitly or implicitly, a number of modifications to the law governing the use efforce to adapt it to the threat of terrorism.
1. Permitting the use of force on the territory of states where terrorists are found
Since September 11, the United States has used substantial military force against terrorist actors in Afghanistan, as well as in an isolated case in Yemen.98 In doing so, it has rejected the view that a state's right of self-defense must give way to the territorial integrity of the state where terrorists are located." This assertion of an unqualified right of self-defense against nonstate actors, even if it is not an entirely novel principle, resolves the tension between the right of self-defense and the territorial integrity of states where terrorists are found differently than it has traditionally been resolved by the international community.100 As such, the claimed right of self-defense against terrorist groups reflects an attempt to favor the interests of states that have suffered terrorist violence over the interests of the states where those terrorists are based.
2. Use offeree in the absence of an armed attack
U.S. officials have also claimed, at least rhetorically, the right to use force against even terrorists who have not engaged in an armed attack against the United States. In a speech shortly after the September 11 attacks, President Bush stated that the "war on terror begins with Al Qaeda, but it does not end there."101 Rather, the President indicated that the war "will not end until every terrorist group of global reach has been found, stopped and defeated."102 Insofar as the United States has asserted the right to use force against international terrorists wherever they may be found, in furtherance of a policy of seeking "to disrupt and destroy terrorist organizations of global reach,"103 the United States does not appear to recognize that a terrorist group must commit an "armed attack" against the United States before it may be targeted.104
The position articulated by Executive Branch officials could represent two proposed modifications to the law governing the unilateral use efforce. First, it is possible that the United States is identifying terrorist organizations as legitimate targets for attack, even if they have neither engaged in an armed attack nor present a threat of launching attacks. In this light, at least one commentator apparently takes the view that the inherent insecurity generated by groups committed to terrorist means, regardless of their specific intentions or capabilities, provides a justification for states to use force against them. Under this view, states should be permitted to use force "to destroy terrorist groups operating in countries that do not carry out their legal obligations to suppress them,"5 with no requirement of a link to an actual or threatened armed attack.
Second, the U.S. assertion of its right to use force against terrorist groups other than Al Qaeda might be read as a claim to use force against terrorists who are engaged in or threaten violence that is not of such "scale and effect" as to constitute an armed attack in the sense described by the ICJ in Nicaragua. Even "less grave" uses offeree by terrorist actors could, in the view advanced by the United States, trigger a right to use force in self-defense.106 It seems plausible to assume that the United States would assert a right to use force in self-defense against even relatively low-intensity acts of violence by terrorist groups. This would reflect a departure from the traditional right of self-defense, at least as articulated in the Nicaragua case.107
3. Use efforce against states that harbor or support terrorists
In addition to claiming a right to use force against terrorist groups found on the territory of states abroad, the United States has asserted, and exercised against the Taliban regime in Afghanistan, the right to use force against states whose governments harbor or support terrorists, even where the terrorists' conduct may not be legally attributable to the state. The 2002 National Security Strategy declares that the United States will disrupt and destroy terrorist organizations in part by denying "sponsorship, support, and sanctuary to terrorists by convincing or compelling states to accept their sovereign responsibilities."108 In a major post-September 11 speech, President Bush announced:
[W]e will pursue nations that provide aid or safe haven to terrorism. Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.109
To similar effect, in a 2003 speech, the then-Director of the State Department Policy Planning Staff argued that force could be used against states that "abet, support, or harbor international terrorists, or are incapable of controlling terrorists"110 operating from their territories:
[S]overeign status is contingent on the fulfillment by each state of certain fundamental obligations, both to its own citizens and the international community. When a regime fails to live up to these responsibilities or abuses its prerogatives, it risks forfeiting its sovereign privileges-including, in extreme cases, its immunity from armed intervention.111
This doctrine claims an entitlement to do more than use force incidentally on a state's territory in the course of operations against nonstate terrorists. It contemplates targeting the harboring state and its governmental organs directly.112 Providing a legal basis for this doctrine requires one of three modifications to the law governing the use of force. First, the threshold for imputing responsibility to a state for the acts of nonstate actors could be lowered, a proposition some legal commentators have endorsed.113 Second, expansive doctrines of vicarious liability independent of traditional state responsibility doctrines could be adopted to allow force to be used against governments of territories from which terrorist groups initiate attacks.114 Third, forcible reprisals could be accepted as lawful in the case of breaches by a state of its legal obligation not to acquiesce in organized activities within its territory directed towards, or to harbor groups dedicated to, the commission of terrorist acts against other states.115
B. New Use of Force Doctrines: Weapons of Mass Destruction in the Hands of Dangerous States and the "Duty to Prevent"
As with terrorism, the possession of weapons of mass destruction by dangerous states, particularly authoritarian regimes that show little regard for the well-being of their populations, presents major challenges for the traditional deterrence-based security policies that inform the law on the use of force. States that have manifested disregard for the prohibition on aggression pose especially serious dangers if they acquire weapons of mass destruction. At least one significant proposed doctrinal development-the call for a legal duty to prevent certain states from acquiring the capacity to produce weapons of mass destruction-has emerged in recent years to respond specifically to these dangers.
A network of widely embraced arms control and nonproliferation agreements bars state parties from acquiring weapons of mass destruction. For instance, all parties to the 1968 Nuclear Non-Proliferation Treaty (NPT), other than the five declared nuclear powers, pledge not to acquire nuclear weapons. The 1972 Biological Weapons Convention (BWC) and the 1993 Chemical Weapons Convention (CWC) prohibit the possession of biological and chemical weapons and require those states that already possess such weapons to destroy their stocks. Each of these agreements, however, permits states to pursue the acquisition and development of materials and technologies that are capable of being used to produce weapons of mass destruction, provided that they are used for peaceful and not military purposes. Under these treaties, the traditional sovereign right of states to develop industries that could be used to produce weapons of mass destruction is not impeded; it is only the actual production and acquisition of such weapons that is prohibited.
Governments, international organizations, and commentators have all expressed concern about the adequacy of this legal regime. They note that it allows states to acquire materials and technology that could bring them to the brink of WMD production. States that have reached this stage are then free to withdraw from the relevant treaties and to pursue WMD production. In addition, even states that remain within the nonproliferation regime may cheat and attempt to develop clandestine WMD programs.
To counter this shortfall in the nonproliferation regime and the concomitant risk to international security, two influential commentators have proposed the recognition of a customary law duty to prevent states of special concern from acquiring WMD-related goods and technologies. Lee Feinstein and AnneMarie Slaughter argue for the acceptance of a duty that would entail "the responsibility of states to work in concert to prevent governments that lack internal checks on their power from acquiring WMD or the means to deliver them."116 Under this norm, states would be bound to prevent the export of materials and technologies that members of the nonproliferation regime would otherwise be entitled to receive, such as technology related to civilian nuclear programs.117
The proposed duty to prevent the spread of WMD to states whose governments lack internal controls goes well beyond the coordinated implementation of export and financial control measures. It also potentially entails the use of force to confront "the most serious proliferation dangers."118 Where force is to be used, the proponents of this doctrine argue that the security Council is the "preferred enforcer."119 Nevertheless, if the security Council fails to act, the "duty to prevent" ultimately serves as an independent legal basis for the exercise of force through "unilateral action or coalitions of the willing."120 To the extent it is not linked to traditional requirements for selfdefense or collective security, the duty to prevent would substantially alter the conditions under which force may be used to counter security threats related to WMD proliferation.
C. New Cross-Cutting Use of Force Doctrines
1. Preemption and prevention
Perhaps the most significant proposed modification to the legal regime governing the use of force prompted by the new security threats is to liberalize the conditions under which a state would be allowed to use of force in selfdefense before it has sustained an armed attack. To counter the threats of WMD proliferation and terrorism, the U.S. government has espoused a right to use preemptive force in self-defense. The proposed doctrine of "preemptive" or "preventive" use of force would alter the concept of "imminence" under the principle of anticipatory self-defense.121
In the context of weapons of mass destruction, the potentially devastating consequences of a WMD attack make unacceptable to most governments the prospect of waiting to use force until an armed attack occurs. In addition, the use of missile technology to deliver WMDs makes it difficult to assess when an attack is "imminent."
These features of the WMD threat have prompted U.S. strategists to call for adaptations to the doctrine of anticipatory self-defense. The 2002 National Security Strategy starts from the premise that under settled international law, "nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack."122 In view of new technological and security threats, the document declares, "[w]e must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries."123 Gravity, in addition to temporal proximity, should determine whether self-defense may be used prior to an actual attack:
The greater the threat, the greater is the risk of inaction-and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.124
The right to use force in advance of an attack espoused in the National Security Strategy entails an entitlement by states to use force not only to preempt the possible use of weapons of mass destruction, but also to prevent dangerous states from even acquiring WMD capability.125 The 2002 National Security Strategy states that the United States will use not only international cooperation to "deny, contain, and curtail our enemies' efforts to acquire dangerous technologies," but that "as a matter of common sense and selfdefense, America will act against such emerging threats before they are fully formed."126
Terrorist threats also have stimulated calls for changes in prevailing legal norms so as to allow the use of either preemptive or preventive force. The U.S. National Security Strategy asserts that in confronting international terrorism, the United States will exercise its right of self-defense "by acting preemptively" against terrorists "to prevent them from doing harm against our people and our country."127 To like effect, the proposed legislative language the Executive Branch provided to Congress following the September 11 attacks would have authorized force not only against those implicated in the events of September 11, but also "to deter and pre-empt any future acts of terrorism or aggression against the United States.128
A number of academic commentators have endorsed the view that the traditional temporal character of the "imminence" requirement for anticipatory self-defense is no longer viable in view of the new security threats.129 Scholars like John Yoo argue that "the concept of imminence must [instead] encompass an analysis that goes beyond the temporal proximity of a threat to include the probability that the threat will occur." In addition, "the threatened magnitude of harm must be relevant."131 If a state was obligated "to wait until the threat were truly imminent in the temporal sense envisioned [under the Caroline standard], there is a substantial danger of missing a limited window of opportunity to prevent widespread harm to civilians." Abraham Sofaer also argues that in appropriate circumstances, preemption should "properly be regarded as part of the 'inherent right' of self-defence."133 Similarly, the proposed right to use force to confront the most serious proliferation dangers, a right that is ancillary to Feinstein and Slaughter's duty to prevent, would also allow force to be used preemptively or preventively in ways that would not be lawful under the existing law of anticipatory self-defense.
2. Necessity and stability
The doctrines of preemption and prevention, though they would allow force to be used to counter an incipient rather than an imminent attack, nevertheless maintain a connection to the principle that force may used only in self-defense, i.e., to forestall attacks by an adversary. In comparison, a number of other proposed use of force doctrines entirely eliminate the requirement of a connection to an attack against the state contemplating the use offeree.
Abraham Sofaer, for example, suggests that the "proper standard" for evaluating whether a state's use of force is lawful is "necessity."134 Whether force is necessary must be determined, employing the methods of a "common lawyer,"135 on the basis of "all the relevant circumstances, in light of the purposes of the UN Charter."136 John Yoo advances a similar proposed framework to evaluate the lawfulness of the use offeree that eschews a specific connection to self-defense. Drawing from economics scholarship, Yoo contends that the use of force should be permitted to promote "international stability or security," a "public good" that is potentially underproduced in international affairs.137 He argues that the test for the lawfulness of the use of unilateral force should turn on "a cost-benefit analysis that takes into account the benefits of maintaining international stability, and of preserving lives, balanced against the predicted costs of a war to both the attacked nation and the attacker."138
Both Sofaer and Yoo consider the use of force to counter the threat of terrorism in a case like Afghanistan and to prevent dangerous states such as Iraq from acquiring WMD programs to be permissible under the frameworks they advance.139
IV.COLLECTIVE SECURITY AND THE NEW SECURITY THREATS
The focus of commentators and some states on the need for new doctrinal bases to expand the right to use force unilaterally to address today's security environment ignores or discounts the role of collective security in meeting the new threats. This Part examines the suitability and availability of the collective security mechanism for addressing the new security threats, taking into account the relationship between collective action and the interests of the Permanent Members of the security Council.
A. Collective security and the Balance of Power
On its face, the standards-based entitlement to use force for collective security allows the international community to address a much broader range of threats than does the right of self-defense under Article 51. The new security threats that bedevil the international community-the presence of terrorists in countries that harbor or fail to suppress them and the potential acquisition of weapons of mass destruction by dangerous states-fall much more cleanly within the category of "threats to international peace and security" than the category of "armed attacks." Nevertheless, the use offeree under the collective security umbrella has been extremely limited since the Charter was adopted.140 The Security Council's paralysis arose from the fact that most security challenges confronting the international community since the adoption of the Charter have involved competing interests of the five Permanent Members of the security Council, each of which was empowered to block the Council from acting.
The international security system in place during the adoption of, and memorialized in, the U.N. Charter was a balance of power system, a system predicated on the formation of alliances by states to prevent other states from dominating them. The second World War was fought by such an alliance of five states (the United States, the Soviet Union, the United Kingdom, France, and China) against three increasingly assertive allied adversaries (Germany, Japan, and Italy). The U.N. Charter formalized this particular alliance by making the five victorious powers Permanent Members of the Council. The structure was intended to ensure that the members of the alliance that prevailed during the second World War would be on permanent call to confront the emergence of threats to their collective interests by the vanquished or by other emerging powers.
Where the interests of the Permanent Five are at variance, however, the authority in the Charter to use force to respond to threats short of armed attack is as a practical matter unavailable. As Joseph Nye has written, the Security Council "was specifically designed to be a concert of large powers that would not work when they disagreed."141 Thomas Franck notes that during the negotiations leading to the Charter, a "largely uncontemplated" issue was "what would happen if a palpable threat to peace were to arise but the Security Council (either for lack of a majority or by exercise of the veto) were unable to act?"142 Based on "the strength of wartime cooperation among allied powers," it was assumed that the Council would be able to "make speedy and objective decisions as to when collective measures were necessary."
This assumption, of course, proved gravely mistaken. As one might expect in any balance-of-power regime, as the relative power of the various states in the system changed, relations among one-time allies and among one-time adversaries shifted.144 The common interests that united the United States and the Soviet Union during the second World War gave way to a tense rivalry, with communist China frequently allying with the Soviets. The three defeated major powers-Germany, Japan, and Italy-joined the bloc led by the United States. Most of the security threats that emerged after the second World War were either regional conflicts or internal conflicts in which the competing factions were proxies for, or were at least supported by, members of the competing Cold War blocs.146 Because the interests of the Permanent Members were at variance during these conflicts, and because the veto power ensured that each of the Permanent Members could prevent security Council action, the collective security mechanism was stymied during the post-war era.147
After the collapse of the Soviet Union, there was great hope that the paralysis that had gripped the security Council throughout the Cold War could be overcome. The Council's authorization to use force in Iraq, Somalia, and Haiti reinforced this hope. Since then, however, the international balance of power has become more fragmented. Europe increasingly pursues interests that do not align with those of the United States. Russia and China each also have strategic interests that clash with those of the other members of the security Council. Although they are unable to match the economic or military power of the United States, the other Permanent Members of the security Council stand on equal footing with the United States in terms of the procedures of the Charter. Through the veto, they are able to preclude the Council from authorizing the use of force under Chapter VII.
The refusal of the Council to authorize the use of force against the Federal Republic of Yugoslavia during the Kosovo crisis in 1999 and against Iraq in 2003 seems, to many observers, to demonstrate that a new and more complex set of rivalries has once again gridlocked the Council. In this vein, Michael Glennon has argued that the refusal of the Council to authorize the use of force against Iraq reflected a
shift in world power toward a configuration that was simply incompatible with the way the UN was meant to function. It was the rise in American unipolarity-not the Iraq crisis-that, along with cultural clashes and different attitudes toward the use of force, gradually eroded the council's credibility.... The fault for this failure did not lie with any one country; rather, it was the largely inexorable upshot of the development and evolution of the international system.148
"[Although the UN's rules purport to represent a single global view-indeed, universal law-on when and whether force can be justified," Glennon contends, "the UN's members ... are clearly not in agreement."149
Commentators who call for the development of new legal doctrines or new institutional arrangements for the unilateral use of force either believe or assume that the political gridlock witnessed in the security Council since the Kosovo campaign will persist.150 They appear to accept Glennon's premise that the structure of the Council, requiring unanimity among the Permanent Members before force may be used, does not reflect the "underlying geopolitical dynamics."151
B. New Security Threats and Converging Permanent Five Interests
What the recent move to identify alternative bases for the use of force overlooks is the possibility that the collective security mechanism in the U.N. Charter is actually well-suited to confronting today's new security threats. The security threats that characterized the second half of the twentieth century were conflicts between the Permanent Members after shifts in the balance of power caused their war-time alliance to fracture, often carried out indirectly via proxy states or groups.152 For a great many other international conflicts, Security Council inaction stemmed not from the fact that those conflicts implicated the competing interests of the Permanent Members, but because they did not implicate their vital interests at all.153
Today's threats of terrorism and the proliferation of weapons of mass destruction, in contrast, are matters that increasingly present common challenges to the interests of the Permanent Members of the Security Council. As this Subpart demonstrates, each of the Permanent Members, as a matter of self-interest, is increasingly committed to national policies aimed at actively countering the new security threats. This growing convergence of interests has produced enhanced counterterrorism and nonproliferation cooperation among the Permanent Members. This, in turn, has increased the prospects for greater reliance on the collective security apparatus of the U.N. Charter.
1. Terrorism
Each of the Permanent Five members of the Security Council has come increasingly to see international terrorism and state sponsors of terrorism as serious threats to their national interests. Moreover, Islamist terrorism in particular threatens to unleash turmoil in other regions, especially the Middle East, where most if not all of the Permanent Members have a strong interest in stability because of their dependence on oil exports from the region.154 Terrorism more fundamentally undermines a stable global order favored by the Permanent Members in which issues of power and security are determined by sovereign states. As a result, the Permanent Members view international cooperation in suppressing transnational terrorism as a prominent foreign policy priority, and they all accept in principle that there may be circumstances in which the use offeree is an appropriate response to a terrorist threat.
The United Kingdom has long experience with terrorism, both terrorism connected with Northern Ireland and international terrorism.155 Since September 11, however, the British government's assessment of the gravity of the threat of terrorism has changed: "The nature of the challenge was revealed in a new light-international terrorism could be more than a heinous crime: it could represent a threat to international security."156 International terrorism now has been characterized as "the principal threat to the UK's national security."157 Islamist groups linked to Al Qaeda are at the center of the terrorist threat faced by the United Kingdom; the Director-General of the internal British security Service has said that Osama Bin Laden "has specifically mentioned the UK as a potential target" for terrorist attacks.158 In July 2005, the United Kingdom suffered a devastating terrorist attack-a series of nearly simultaneous bomb attacks against the London public transportation system that killed fifty-six people and injured more than 700. A previously unknown organization calling itself the "Secret Organization of Al Qaeda in Europe" claimed responsibility for the attacks, the worst in British memory since the Second World War. The Al Qaeda organization itself has since claimed responsibility for the London bombings,160 although it remains unclear whether Al Qaeda, or an independent group inspired by it, carried out the attacks.
The official strategy paper of the Foreign and Commonwealth Office (FCO) reflects the growing importance of countering international terrorism to British foreign policy. It identifies terrorism, along with WMD proliferation, as the top strategic threat facing the United Kingdom.161 As a consequence, the FCO identifies making the world "safer from global terrorism" as one of its "highest strategic policy priorities." British policy, like American policy, also declares that a counterterrorism policy cannot be limited to terrorist groups themselves, but must also address "the problem of states that offer support to terrorists, or failed states that provide them refuge."162
The United Kingdom's conduct since September 11 reflects not only its view that international terrorism presents a grave security threat, but also that there are circumstances in which military force is an appropriate counterterrorism tool. Thus, Britain joined other North Atlantic Treaty Organization (NATO) states in invoking Article 5 of NATO's constitutive treaty, the Treaty of Washington, in the aftermath of the September 11 attacks. Article 5 is the central collective self-defense provision of the Treaty of Washington, which requires NATO member states to treat an armed attack against any of them as an attack against all. In addition, the United Kingdom made substantial contributions to U.S.-led military operations in Afghanistan, including launching cruise missiles from its submarines, permitting American aircraft to operate from its Diego Garcia airbase in the Indian Ocean, and deploying ground troops (including an elite counterterrorist unit) to participate in operations against Al Qaeda and the Taliban.163 British Prime Minister Tony Blair also engaged in active diplomatic efforts to "build support for U.S. military action in Afghanistan with Arab and Muslim countries and other nations."164 These actions reflect British endorsement of the view that the use of force can be an appropriate response to international terrorism and state sponsorship of it.
France, too, has suffered domestic terrorist attacks and has identified suppressing international terrorism as a central foreign policy goal. Indeed, as one commentator notes, "Few states have the history or breadth of engagement with terrorism that has been experienced by France."165 Like the other Permanent Members of the security Council, France now faces a transnational Islamist terrorist threat emanating from Al Qaeda and actors affiliated with it.166 France's strong interest in suppressing international terrorism is reflected in statements of French leaders and policy statements. After the bombings of the U.S. embassies in Kenya and Tanzania, for example, then French Prime Minister Jospin declared, "Wherever terrorism is launched from, we must respond with a decisive and firm answer."167 A statement of French policy on terrorism declares that France "has long shown its determination to fight all forms of terrorism, no matter who is behind it."168
Before September 11, French counterterrorism policy was largely limited to police and judicial activities. Since then, however, it has also taken on a military dimension. France has reflected its willingness to both support and employ force to counter terrorism. Following the September 11 attacks, France was "at the forefront in offering military support to the United States including through NATO which activated its Article V defense clause for the first time in its history . . . ."169 France also pledged "important military contributions" to the U.S.-led campaign in Afghanistan,170 including the deployment of intelligence forces and personnel to support conventional military operations.171 French aircraft flew bombing missions in Afghanistan, and French special forces troops continue to fight against the remnants of the Taliban.172
Even though the interests of Russia and China regarding traditional security challenges regularly clashed with those of the United States during the Cold War, the assumption that Russian and Chinese interests necessarily diverge from those of the West with respect to terrorism does not withstand scrutiny. Both Russia and China increasingly see their interests as comporting with those of the United States and its traditional allies in responding to terrorism.
As for Russia, its traditional and reflexive tendency to view the United States as a rival is giving way to a more pragmatic approach that recognizes the possibility, and even the importance, of cooperation with the United States and other leading industrialized nations.173 With respect to terrorism, for instance, Russia faces severe internal security threats related to the separatist insurgency in Chechnya, which has more recently spread to other areas in the North Caucasus region. Since 1994, Russia has been one of the countries most painfully affected by terrorism;174 it "has been the target of far more terrorist attacks than the United States has."175 In 1999, a series of bombings of apartment buildings in Moscow attributed to Chechen separatists killed nearly 300 people.176 In October 2002, Chechen rebels seized more than 800 people at a theater in Moscow; more than 120 hostages were killed during the subsequent rescue attempt.177 In 2004, Chechen separatists seized a school in Beslan, in northern Ossetia, an assault resulting in the deaths of 331 hostages.178 Seventy Russian law enforcement officials were killed during Chechen attacks in Nazran in June 2004,179 and a similar assault by Islamic militants in the city of Nalchik in October 2005 left 128 dead, including thirty-six civilians and Russian law enforcement personnel.180 The restive regions where most of these attacks have occurred are predominantly Muslim, and the Russian government has consistently maintained that Al Qaeda and other external Islamist forces are active participants fueling the terrorist violence.181
In view of the security threat terrorism poses to Russia, it has identified countering international terrorism as one of its principal foreign policy objectives.182 The governing document on Russian foreign policy, the "Foreign Policy Concept of the Russian Federation," declares: "Russia regards as its most important foreign policy task to combat international terrorism which is capable of destabilizing the situation not only in individual states, but in entire regions."183 As evidence of its willingness to engage cooperatively in the fight against terrorism, shortly after September 11, Russia reached an agreement with the United States to increase intelligence-sharing about Afghanistan and Al Qaeda.184 Russia also acquiesced in the establishment of temporary U.S. military bases that have supported U.S. forces and combat operations in Afghanistan in central Asian nations, which used to form part of the Soviet Union and which Russia regards as falling within its sphere of influence. Russia has, moreover, accepted the notion that force may be used internationally to confront terrorist threats; it has endorsed the interpretation that security Council Resolution 1368, adopted in the immediate aftermath of the September 11 attacks, permits forcible responses to terrorism, a view Russia sees "as a useful precedent in its fight against Chechen rebels."186
Indeed, Russian President Putin, echoing U.S. assertions of a right to use force preventively against terrorist forces abroad, has claimed that international law would permit Russia to take "necessary measures" to "avertT] the terrorist threat" posed by Chechen militant groups based in Georgia. Subsequent statements by the Russian defense minister that no security Council approval was needed for Russia to attack Georgia, and the publication in a Russian newspaper of military plans to occupy that country, make clear that the "measures" to which Russia claimed an entitlement included the use of military force.188 Commentators have observed that Russia's "notably supportive"189 overall response to the events of September 11 reflects President Putin's decision to "line up with the United States in the 'war' against terrorism[,] putting his country squarely on the side of the West."190
China's foreign policy is undergoing important changes that also bring its global security interests increasingly into alignment with those of the other Permanent Members of the security Council. As a general matter, China has become a more active participant in the international system. "In contrast to a decade ago, [China] now largely works within the international system. It has embraced much of the current constellation of international institutions, rules, and norms as a means to promote its national interests."191 Notwithstanding its traditional ideological sympathy for developing countries and its strong opposition to international interference in the internal affairs of sovereign states, China has moved increasingly in the direction of supporting collective security action by the security Council.192 As its "stake in the international community expands and it associates itself with great-power interests, China is gradually becoming more involved in efforts to combat global security threats, both traditional and nontraditional."193
China now also perceives itself as being threatened by international terrorism and recognizes its responsibilities in seeking to combat it. A Chinese government "White Paper" entitled "China's National Defense in 2002" observes that China is threatened by an internal Islamic terrorist movement and declares that China "has always resolutely opposed and condemned all forms of terrorism, and has actively adopted effective measures to fight against terrorist activities."194 Shortly after September 11, China's representative to the security Council told the Council that "it is not only the United States which is threatened by terrorism," but that "China, too, has been threatened by terrorism."19 China faces Muslim separatists in its western Xinjiang-Uighur Autonomous Region, including forces of the East Turkestan Islamic Movement, which Chinese officials claim are "purely and simply, part of international terrorism, and should be resolutely fought against."196
China's opposition to international terrorism has generated demonstrable forms of cooperation with the United States's war on terror. In September 2003, then-U.S. Assistant secretary of State for East Asian and Pacific Affairs James Kelly noted that the United States and China were pursuing "complementary-and sometimes common-policies" in the war on terror.197 China offered the United States important forms of political support for its counterterrorism goals; it supported resolutions passed by the security Council and General Assembly,198 as well as the U.S. assertion that states may use force in self-defense against terrorist actors abroad.199 Perhaps more critically, China "played an instrumental role in encouraging its close ally Pakistan to support American efforts in Afghanistan."200 Additional specific forms of Sino-American cooperation include a Chinese pledge of $150 million-a significant amount in light of historical Chinese foreign aid commitments-to reconstruction efforts in Afghanistan and participation in the Container security Initiative to prescreen cargo shipped from China to the United States. China has also reportedly engaged in intelligence sharing with the United States on the Al Qaeda networlc02 and has expanded cooperation with American law enforcement officials on antiterrorist financing efforts.203
Although some view the Chinese steps in support of the U.S. response to terrorism after September 11 as relatively modest, the evolution in China's thinking on terrorism is striking. International cooperation on combating terrorism is one of only four topics discussed in China's 2002 National Defense document. In contrast, the prior version of its National Defense White Paper, issued in 2000, makes only a few passing references to terrorism.205 With respect to the question of the use of force to counter terrorism, China's support of the American intervention in Afghanistan is particularly notable in light of China's past aversion to foreign military intervention; the Afghanistan campaign "was the first such action that China had endorsed since the ending of the Cold War" and stands in sharp contrast to Beijing's "vitriolic reaction" to the U.S.-led intervention in Kosovo in 1999.206 One commentator has observed that counterterrorism cooperation between the United States and China has opened a "new era of bilateral relations" between the two countries.207 These factors, combined with China's growing willingness to support multilateral security efforts through the security Council, suggest that it is prepared to act in concert with the other Permanent Members to promote more coercive approaches to counterterrorism.
2. WMD proliferation and dangerous states
The Permanent Members also have a common interest in preventing the proliferation of weapons of mass destruction. The geopolitical influence of the Permanent Members stems in part from their military power, including their near-monopoly on nuclear weapons. States that could never threaten the Permanent Members through conventional military means can do so-or can at least resist Great Power intimidation-if they acquire weapons of mass destruction. Even Russia and China, which have in the past engaged in the proliferation of WMD-related technologies to their allies, are increasingly realizing the dangers presented by such an approach. For one, the states seeking to acquire WMD technologies are often unstable.208 There are no guarantees that a friendly regime that acquires weapons of mass destruction today will not be replaced by a hostile regime tomorrow. second, recent revelations about the proliferation network organized by the head of Pakistan's nuclear weapons program, A.Q. Khan, demonstrate that it is impossible to set limits on the proliferation of weapons of mass destruction. The acquisition of weapons of mass destruction by states that previously did not possess them is thus dangerous because of the threats presented by unknown states that may benefit from onward proliferation. Finally, WMD proliferation creates risks of counterproliferation. As such, the Permanent Members have come increasingly to realize that even an ally's WMD programs can be detrimental to their interests because they may encourage regional adversaries to pursue competing WMD programs.
Like the United States, the United Kingdom and France have identified the proliferation of WMD as a major security threat. The United Kingdom, as a matter of national policy, identifies making the world safer from weapons of mass destruction, along with countering terrorism, as the first of its international policy priorities.209 Along with terrorism, senior British officials have described WMD proliferation as one of the "main security threats for the twenty-first century," an issue that is "at the very top" of the U.K. government's international security agenda. In addition, the United Kingdom was one of the initial eleven participants in the U.S.-led Proliferation security Initiative (PSI), a cooperative arrangement aimed at halting the spread of WMD-related materials to "states and nonstate actors of proliferation concern" through, among other things, the interdiction of shipments of suspected WMD-related materials.211 Perhaps most visibly, the United Kingdom participated in the U.S. invasion of Iraq and justified its decision to do so almost exclusively on the basis of the WMD threat presented by Saddam Hussein's regime.212
French national policy, too, stresses the dangers posed by weapons of mass destruction. France views WMD proliferation as "one of the most serious threats of our time."213 Such proliferation, in France's view, "endangers the security equilibrium at regional, and at global, level." In view of the potential for weapons of mass destruction to be used in terrorist attacks, France considers it "essential" to halt WMD proliferation before the "global security architecture is undermined."214 France was also one of the founding participants in the Proliferation security Initiative.215
The determination of France and the United Kingdom to prevent WMD proliferation is further manifested by their behavior in the context of both European institutions and ad hoc coalitions. Both states have endorsed the European Union's security Strategy, which notes that WMD proliferation "is potentially the greatest threat to [Europe's] security."216 Other EU statements not only reiterate that WMD proliferation constitutes a "threat to international peace and security"217 that "puts at risk the security of our states, our peoples and our interests around the world,"218 but also envision that coercive measures, including in appropriate cases the use of force, could be used to address proliferation threats.2 Commentators have stressed the significance of the change in European thinking about the WMD security challenge, observing that European concern about the problem is growing220 and that the new European WMD strategy documents mark a "dramatic departure" from previous European thinking about the potential role of military force in confronting proliferation challenges.221 The greatest difference between the United States and its European allies now appears to turn not so much on whether there are circumstances in which force should be used to address WMD proliferation threats, but whether force may be pursued unilaterally, as U.S. strategy contemplates, or only under the collective security authorities of the U.N. Charter, as the Europeans maintain.222
The record of the United S tales's traditional security Council rivals, Russia and China, on WMD nonproliferation has historically been more problematic. It is true that in terms of formal policy statements, Russia declares that it "reaffirms its unswerving course toward participating jointly with other states in averting the proliferation of nuclear weapons, other weapons of mass destruction and means of their delivery, as well as relevant materials and technologies."223 Moreover, Russia's recent decision to join the Proliferation security Initiative is a tangible reflection of its expanding commitment to international nonproliferation efforts.224 Nevertheless, skepticism about whether Russian shares the United States's determination to prevent the spread of WMD to potentially dangerous states remains. As one commentator recently observed, "Russia still has yet to shirk off its Soviet-era policy of external arms and technology transfers and aid to rogue states."2 Russia's record of cooperation with Iran's nuclear program is frequently identified as evidence that Russia's interests do not align with those of other Permanent Members of the security Council with respect to nonproliferation. Despite the widely shared Western assessment about Iranian ambitions to acquire nuclear weapons production capability, Russia has continued to work on the construction of a civilian nuclear power plant at Bushehr. As Part IV.C.2 shows, however, even in the case of Iran, the record reveals more common ground than conflict between Russia and the West with respect to the goal of preventing Iran from developing a nuclear weapons capability. This reflects Russia's own assessment that the proliferation of WMD in general, and the acquisition of nuclear weapons by Iran in particular, undermines its security interests.
Like Russia, China's past exports of missile and WMD-related technologies have been a source of considerable concern to the international community. China is reported to have exported nuclear and missile technology to Pakistan226 and chemical weapons2 and missile technology to Iran. China's lax control of exports by its munitions industry and its insistence on "nondiscriminatory" nonproliferation regimes, which rejects the notion of disparate treatment of different states based on the proliferation dangers they present, have made China's WMD proliferation a persistent and troubling concern in United States-China relations.
Here, too, however, there is evidence of significant change in Chinese attitudes that creates a strong basis for Permanent Five cooperation on nonproliferation. China's 2003 White Paper on nonproliferation begins with the central premise that preventing WMD proliferation "is conducive to the preservation of international and regional peace and security, and compatible with the common interests of the international community."229 Perhaps more importantly, it also recognizes that WMD proliferation "benefits neither world peace and stability nor China's own security."230 Reflecting this emerging view, China has only since the early 1990s begun to join or participate in the major international nonproliferation treaties and regimes.231 In 1997, it agreed with the United States to cancel existing nuclear assistance activities with Iran and not to embark on any new projects.232 In 2002, China also enacted new WMD-related export control regulations.233 Observers note that the "scope, content, and frequency of [China's] export of sensitive weapons-related items has declined and diminished. In the latter half of the 1990s, the Chinese government began to institutionalize its nonproliferation commitments by issuing export controls, a trend that has continued in recent years."234 Even with respect to the potential use of force against WMD threats in dangerous states, it is notable that China voted for U.N. security Council Resolution 1441, warning that Iraq would face serious consequences if it failed to comply with its disarmament obligations, and it did not express a clear intention to veto a follow-on resolution that would have expressly authorized the use of force against Iraq to enforce those obligations.2 China's changing attitude towards the dangers of WMD proliferation is perhaps best exemplified by its increasingly assertive and constructive role in encouraging North Korea to abandon its nuclear weapons program, as Part IV.C.3 demonstrates.
C. Permanent Member Cooperation to Counter the New security Threats
1. General measures
The growing convergence of the interests of the Permanent Members of the security Council has given rise to significant cooperative developments to respond to the new security threats. Some steps, such as the Proliferation security Initiative and the promulgation of the E.U. Strategy Against the Proliferation of Weapons of Mass Destruction, have been achieved through multilateral diplomacy outside the framework of the United Nations. But substantial achievements have also been made under the collective security authorities of the security Council. With respect to terrorism, for instance, the security Council expressly determined in a Chapter VII resolution adopted shortly after the September 11 attacks that "any act of international terrorism" constitutes a "threat to international peace and security."236 More significantly, the security Council has gone beyond declarations and has mandated important new substantive legal requirements to meet the threat of terrorism. Resolving ambiguity about the scope of the customary international law duty not to support or harbor terrorists, the Council in Resolution 1373 decided under Chapter VII that states are legally obligated, among other things, to "refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts," to take "necessary steps to prevent the commission of terrorist acts," and to "deny safe haven" to persons involved in terrorism.237 The Council also imposed a duty on states to freeze the financial assets of all persons involved in terrorism.238
Resolution 1373 represents a dramatic departure from past security Council practice in addressing threats to international peace and security. Rather than adopting ad hoc measures to deal with a particular situation, the Council used its Chapter VII powers "to establish new binding rules of international law" of general application.239 The Council also established the Counterterrorism Committee (CTC), comprised of all members of the Council, to collect and review reports from states on implementation of their obligations under Resolution 1373.240 In so doing, the Council has responded to the threat of terrorism by establishing a "rare phenomenon in international law: legally binding regulation, backed by the possibility of real enforcement action, imposed on all states by a global international organ engaged in a continuous legislative enterprise by virtue of a delegated power and subject to no geographic or temporal limitation."241
The converging interests of the Permanent Members of the security Council have led to significant new developments in the sphere of collective action to counter the threat of WMD proliferation as well. In Resolution 1540, the Council in April 2004 for the first time declared, in broad terms, that the proliferation of weapons of mass destruction "constitutes a threat to international peace and security" and affirmed its resolve to "take appropriate and effective actions against any threat to international peace and security caused by" WMD proliferation.242 It noted in particular its grave concern over "the threat of terrorism and the risk that non-State actors . . . may acquire" weapons of mass destruction.243 Acting in a quasi-legislative capacity as it had in Resolution 1373, the Council imposed Chapter VII obligations on all states to refrain from providing any form of support to nonstate actors seeking to develop, acquire, or use weapons of mass destruction and to adopt and enforce laws to prohibit such activities by nonstate actors, "in particular for terrorist purposes."244 To enhance compliance, the Council established a new committee to collect and review reports from states on their implementation of the resolution.245
2. The Iran case
Perhaps more telling than such general responses by the Permanent Members to the WMD proliferation threat is their conduct in connection with the North Korean and Iranian proliferation crises. In both cases, the Permanent Members have cooperated in fairly substantial ways in an effort to prevent or roll back WMD acquisition efforts in those countries.
With respect to Iran, the intensive diplomatic efforts of France and the United Kingdom, working in conjunction with Germany, to address the Iranian nuclear proliferation challenge demonstrate the extent to which those countries' strategic interests regarding contemporary security threats increasingly mirror those of the United States. The "EU-3" have sought commitments from Iran to suspend its uranium enrichment and reprocessing activities and to sign and bring into force an Additional Protocol to its Nuclear Non-Proliferation Treaty Safeguards Agreement with the International Atomic Energy Agency (IAEA). The EU-3 pressure on Iran stems from the European assessment, a view shared by the United States, that: (1) Iran seeks to acquire the capability to produce nuclear weapons; (2) it is operating a clandestine nuclear weapons acquisition program;247 and (3) "Iran's acquisition of nuclear weapons would be disastrous for the stability of the Middle East and for the future of the global nonproliferation regime."248
The Permanent Members' path in dealing with Iran's nuclear program has admittedly been tortuous. In October 2003, Iran agreed with the EU-3 to halt uranium enrichment and reprocessing and to sign an Additional Protocol, which required Iran to provide an expanded declaration of its nuclear activities and to grant the IAEA greater access rights to Iran's nuclear programs.249 Iran has not ratified the Additional Protocol, although for a period of time it pursued a policy of acting in accordance with it, including its May 2004 submission of a declaration on its nuclear programs required by the Protocol. Although Iran gave IAEA inspectors access to locations they sought to inspect, the IAEA Board of Governors concluded in June 2004 that Iran's cooperation was not as "full, timely and proactive as it should have been."250 Later in the summer of 2004, Iran announced that it would resume uranium enrichment activities, but agreed in November 2004 to further suspend uranium enrichment to pursue negotiations with the EU-3. Those negotiations foundered, and in April 2005 Iran threatened to resume uranium conversion activities, which it did in August 2005.
Despite the tactical preference they manifested during the nuclear talks for avoiding confrontation with Iran, the EU-3, with U.S. support, responded to Iran's resumption of uranium conversion by halting talks and by successfully pressing for the adoption in September 2005 by the IAEA Board of Governors of a resolution that found Iran to be in breach of its obligations under its Safeguards Agreement with the IAEA.251 Significantly, the resolution found that doubts about the peaceful purposes of Iran's nuclear program "have given rise to questions that are within the competence of the security Council, as the organ bearing the main responsibility for the maintenance of international peace and security."252 In an article published simultaneously in The Wall Street Journal and Le Monde, the Foreign Ministers of the EU-3 and the E.U.'s High Representative for Common European Foreign and security Policy emphasized the proliferation risks posed by Iran's course of action. Calling on the IAEA Board of Governors to respond to Iran's intransigence, they declared: "Collectively, we are responsible for meeting the challenge."253
Russia and China, too, have played a constructive role in attempting to prevent Iran from developing a nuclear weapons capability. Russia has consistently insisted that its nuclear cooperation with Iran is solely for the purpose of civilian nuclear energy production. Because of the threats to regional stability that would flow from the acquisition of nuclear weapons by Iran-including concerns about onward proliferation, the risk of counterproliferation by other regional players, the danger of preemptive attacks by states, such as Israel, that would be threatened by a nuclear Iran, and the weakening of the global nuclear nonproliferation regime that the nuclearization of Iran would trigger-Russia's strategic interests do not favor the acquisition by Tehran of nuclear weapons. As Orlov and Vinnikov write, "Any rational analysis would posit that Russia's interests are better served by ensuring that its southern neighbor remains free of nuclear weapons... ."254 Russia was accordingly "shocked, perhaps even more so than the West, at Iran's admission [in 2002] that it had been conducting clandestine . . . nuclear research activities for 18 years."255 In the words of the then-American ambassador to Russia, although the "Russians showed some ambivalence in the past about the threat posed by ... the current regime in Tehran ... they are increasingly clear-eyed about the danger, and our cooperation is improving."256
Although Russia continues to resist American demands that it halt its civilian nuclear cooperation with Iran, it has sought to limit the extent to which its assistance could contribute to a nuclear weapons program.257 Russia does not wish to see Iran develop a complete nuclear fuel cycle that could enable it to produce nuclear weapons,258 and consequently seeks to put in place arrangements to "effectively control Iran's nuclear ambitions." Russia has accordingly taken steps to guard against the export of some of the most sensitive nuclear technologies to Iran,260 and has more recently insisted on the conclusion of an agreement with Iran that would provide for the return to Russia of spent nuclear fuel once the Bushehr reactor is operative.261 In an attempt to pressure Iran to abandon any nuclear ambitions it may harbor, Russia has announced that its support for Iran's nuclear programs will in turn depend on Iran's cooperation with the IAEA,262 and Russian diplomacy has been "tirelessly engaged in persuading Iran" to cooperate with the IAEA and to comply fully with the Nuclear Non-Proliferation Treaty.263 In June 2004, Russia voted for the IAEA Board of Governors resolution that deplored Iran's failure to provide full, timely, and proactive cooperation with the IAEA inspectors.
Subsequent events have suggested continuing convergence between Russia and China, on one side, and the United States and the EU-3, on the other, with respect to the Iranian nuclear threat. Russia and China did not vote for the IAEA's September 2005 resolution on Iran, but merely abstained, allowing the resolution to pass without their active endorsement. In February 2006, the IAEA's Board of Governors adopted a new resolution regarding Iran's nuclear program; it noted the IAEA's "absence of confidence that Iran's nuclear program is exclusively for peaceful purposes" and directed the IAEA's Director General to "report to the security Council" all previous IAEA reports and resolutions related to Iran and the specific steps the IAEA Board deemed necessary for Iran to take to resolve the crisis. Significantly, Russia and China joined the United States and the EU-3 in casting affirmative votes for the February 2006 resolution.266
The IAEA's Director General reported in April 2006 that significant gaps existed in the Agency's information regarding Iran's nuclear activities, resulting from a lack of transparency on the part of the Iranian government;267 a June 2006 IAEA report noted no further progress in clarifying the outstanding issues.268 In the face of Iran's refusal to cooperate with the IAEA, the security Council in July 2006 passed Resolution 1696 giving Iran one month to "suspend all enrichment-related and reprocessing activities, including research and development" or else "face the possibility of economic and diplomatic sanctions to give effect to its decision."269 All of the Permanent Members voted for the resolution, which passed fourteen to one.
At this writing, the outcome of the WMD proliferation challenge presented by Iran remains unclear. There are reports that not all of the Permanent Members favor a strategy of imposing sanctions on Iran to press it to comply with demands that it consent to the verifiable suspension of its uranium enrichment activities.270 Nevertheless, it seems beyond dispute that the interests and policies of the Permanent Five have converged to attempt to prevent Iran from developing nuclear weapons; their votes to refer the matter to the security Council and to enact Resoluti