Beyond the pale? The international legal basis of the Bush doctrine

This thesis examines the international legal basis of the Bush Administration's jus ad bellum (or use-of-force) paradigm in the global war on terror, popularly known as the "Bush Doctrine." Through a series of incremental and ad hoc decisions and measures taken in the aftermath of the terrorist outrage perpetrated on 11 September 2001, the Administration gradually laid out an international legal paradigm on the right to use military force in the global war on terror. Is this paradigm an evolutionary or revolutionary development in the international jus ad bellum regime? That is the general question to be addressed in this thesis.; We begin with the presentation of two background chapters which set the context within which the analyses of key elements of the Bush Doctrine will proceed. In Chapter Two, we elaborate the underlying foreign policy framework within which the Bush Administration conceptualizes its conflict with terrorists and rogue States. We follow this in Chapter Three with an examination of the fundamentals of the U.N. Charter jus ad bellum regime, the international legal context within which the Bush Administration seeks to prosecute the global war on terror.; We next proceed to examine two key elements of the Bush Doctrine and their interrelationship. In Chapter Four, we explore one of the fundamental premises of the Doctrine, that terrorist attacks constitute armed attacks under Art. 51 of the U.N. Charter, justifying the unilateral or collective resort to the use of force in the exercise of a State's inherent right of self-defence. We then move on to consider a second key element, the controversial strategy of preventive/pre-emptive military action, focusing specifically on the Administration's claims to a jus ad bellum right to initiate violence in the effort to prevent rogue States from acquiring W.M.D. capabilities, either to use themselves or to pass on to their terrorist allies.; Finally, in the concluding Chapter, we summarize the findings of the analyses in the preceding four chapters, and critique the Bush Doctrine as an attempt to reshape de facto the Charter jus ad bellum regime in a marner consistent with the structure of hegemonic international law (H.I.L.). From this vantage point, we conclude that, when each element of the Bush Doctrine is examined on its own, it is initially difficult to take the position that the Doctrine goes beyond the pale, understood as lying completely outside the U.N. Charter jus ad bellum regime. However, when the elements are viewed as an interactive whole, the overall thrust of the Doctrine, effectively establishing a de facto exceptionalist position under the law for the global hegemon, cannot be reconciled with the best international legal understanding of the U.N. rules. Whether the Doctrine is so thoroughly outside that understanding as to be 'beyond the pale' as future international law is much less certain and will have to await the test of time.