THE UN CHARTER IS OUTDATED

Artículo de Robert Hill en "The International Herald Tribune" del 2-12-02

Preemption

ADELAIDE, Australia In a world of spreading terrorism and weapons of mass destruction, the international community should review the limits of self-defense and the right of national governments to take preemptive action.

Long-established principles of international law need to be reinterpreted in an age of over-the-horizon weaponry, computer network attack and asymmetric threats, when warning times are reduced virtually to zero and enemies can strike almost anywhere.

The world in which the United Nations Charter was drafted was very different. Then, the preoccupation was to prevent the massive conventional wars between states that disfigured the first half of the 20th century.

It is clear that, when an armed attack against a country is imminent, the government is not compelled to wait until the first blow has been struck. But what action can a state legitimately take when the attack is to be launched by a non-state actor, in a nonconventional manner, operating from a variety of bases in different parts of the world? There are no tell-tale warning indicators such as the mobilization and pre-deployment of conventional forces.

Article 51 of the UN Charter permits the use of self-defense if a criminal attack occurs. But this has not settled the debate between those who adopt a literal interpretation and those who argue that contemporary reality demands a more liberal interpretation.

The jurisprudence of the International Court of Justice does not include a definitive statement on the scope of the law of anticipatory self-defense under the Charter. States act according to their interpretation, no doubt informed by the interpretations of others. .The clear view of the United States, set out in its National Security Strategy statement in September, is that there is an "option of preemptive actions to counter a sufficient threat to our national security." The document says the United States will, if necessary, act preemptively to "forestall or prevent such hostile acts by our adversaries."

Such clear statements by America reflect the view that the concept of "imminent threat" must be adapted to the "capabilities and objectives of today's adversaries." In short, international law cannot sit still.

But the United States still couched this right as self-defense rather than as a distinct new doctrine. The same was the case in 1986 when America responded with bombing raids on Libya to an attack on a discotheque in Berlin that killed a U.S. soldier. President Ronald Reagan said the purpose of the mission was self-defense and the preemptive action would not only diminish Libya's capacity to export terror but also provide it with reasons and incentives to change its criminal behavior.

Other examples include the U.S. imposition of a maritime quarantine on Cuba in 1962 to force the Soviet Union to remove its nuclear weapons from Cuba, and the 1981 Israeli attack on a nuclear reactor in Iraq.

Continuing efforts by Iraq to acquire weapons of mass destruction have rekindled this important debate. .For the moment, the issue has been avoided by a new UN Security Council resolution ordering certain actions linked to weapons inspections in Iraq and warning of "serious consequences" in the event of noncompliance. It is to be hoped that Baghdad can be persuaded by the consensus of the international community to disarm, and that the need for armed intervention can thus be avoided.

But in the longer term, the issues and the uncertainty remain unresolved. Some would argue that it is time for a new and distinct doctrine of preemptive action to avert a threat. A better outcome might be for the international community to seek an agreement on the ambit of the right to self-defense better suited to contemporary realities.

International legal machinery is slow to adapt to rapidly changing circumstances. It is important that international lawyers seek to catch up and ensure that the world's legal framework remains relevant to its security challenges.

It would be useful if the United Nations contributed to the further development of these principles. Advisory opinions from the International Court of Justice might also be helpful. .Meanwhile, those responsible for governance will continue to interpret self-defense as necessary to protect their peoples and their nations' interests.

The writer is Australia's defense minister. This comment was adapted by the International Herald Tribune from the John Bray Memorial Oration delivered at the University of Adelaide on Nov. 28.