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

Abstract

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