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This chapter discusses the characteristics of a justified preventive military action. These are that (i) it must be limited to the effective elimination, including the prevention of the return, of the danger that justifies it; (ii) it must be undertaken only when military action is urgent; (iii) it must be based on well-verified, solid intelligence collected by a highly competent agency; and (iv) it must be substantively multilateral, that is, based on principles justifiable on the basis of reasons broadly acceptable internationally.

This chapter presents a historical perspective of pre-emption and prevention. Topics discussed include the Japanese attack on Pearl Harbor in 1941, Prussia's initiation of the Seven Years War in 1756, and the Cold War. The United States had used preventive war regularly since 1945 to forestall revolutionary change. However, this existing predisposition in favour of preventive war was obscured until the 1990s by the wider context of the Cold War, by America's endorsement of international law and multilateral institutions, themselves designed to curb preventive war, and by the use of special forces and covert operations which ensured that the United States' actions were largely overlooked. But by 2001, the United States had embraced a declaratory policy of using preventive war. It is argued that the vocabulary of pre-emption when applied to preventive war created misplaced expectations.

This chapter discusses US policy on preventive war. Following September 11, 2001, the Bush Administration established a new national security policy that was no longer based on the principle of deterrence, but based on pre-emption. It is shown that the Bush strategy is anomalous and has really broken with American tradition. This is done by considering the policies pursued by other American governments, and in particular by looking at how the Truman, Eisenhower, Kennedy, and even Clinton administrations dealt with this sort of problem in earlier phases of the atomic age, but also by looking with some care at the policy the Roosevelt administration pursued in the period before Pearl Harbor.

This chapter provides a general, philosophical account of the use of harmful force in self-defence as a type of retaliation. It argues that pre-emption — the use of harmful force for prevention — is not an act of self-defence. The associations between the concepts of retaliation, self-defence, and pre-emption are discussed.

This chapter begins by outlining the arguments for preventive war by an individual state, as articulated by the United States. It then outlines the argument for preventive war undertaken with the approval of the UN Security Council. The underlying logic of the US and the UN High-level Panel are compared, and it is shown that despite apparent significant differences from the logic of the United Sates, the High-level Panel's arguments are based on a similar understanding of the contemporary context of world politics and of security. The chapter then shows how the logic of collective preventive war is almost as destructive of international society as unilateral preventive war.

This chapter attempts to strengthen the institutionalist approach to the justification of preventive war. It seeks to refute the claim that preventive war as such is unjust because it involves violations of the rights of at least some of those who are targeted in the preventive action. It argues that even the strongest ‘rights-based’ objection is incapable of supporting the assertion that preventive war is never morally permissible and that properly designed institutions provide an effective reply to the consequentialist objections.

This chapter argues that there are profound moral problems with the doctrine of preventive war. The consequentialist approaches to preventive war are first examined. The chapter then examines whether preventive action can be viewed as a legitimate component of the right of self-defence, and argues that it cannot. The right of self-defence has historically been grounded in a number of different theoretical justifications, including those that invoke a conception of psychological necessity and those that invoke human rights. On neither of these theories, however, can preventive self-defence be justified.

This chapter argues that although Bush's preventive war in Iraq is morally wrong, and his policy is too broad, some exceptional preventive wars can still be morally justified. It develops and defends a version of consequentialism about war. It then criticizes the relevant part of the most common deontological alternative — just war theory. Finally, all of this theory is applied to preventive war in general and Bush's war and policy in particular.

Explores the circumstances under which the imposition of statutory debt restructuring mechanisms and/or debt standstills can trigger a ‘rush for the exits’ by creditors. Given the possibility of such creditor pre-emption, it also examines how the IMF and the official sector can galvanize private sector involvement by providing ‘catalytic finance’. Concludes with an empirical assessment of the extent of debtor moral hazard—the main reason cited against the adoption of a statutory approach to crisis management.

This book shines new light on the mostly ignored historical and legal evidence of the use of the Doctrine of Discovery in Australia, Canada, New Zealand, and the United States. In these countries, Christian Europeans assumed that they held sovereign, property, and commercial rights over the indigenous peoples under the ‘legal authority’ of the Doctrine. This chapter examines the development of Discovery in Europe, focusing on England's role in that development and its use of the Doctrine in these four English colonies. It also sets out the elements of Discovery to explain its underpinnings and definition and to explain how it was used in these four countries to acquire the rights of indigenous peoples. These four countries still struggle to deal with indigenous peoples and, in fact, they were the only countries to vote against the U.N. Declaration on the Rights of Indigenous Peoples.

This chapter shows how Discovery was imported and expressly adopted into American colonial and state law in royal charters and colonial and state constitutions, governments, and courts. It explains how the United States government adopted Discovery and how it was accepted by American jurisprudence in 1823 in Johnson v M'Intosh. The loss of tribal and individual Indian property rights and sovereignty followed naturally from the use of Discovery against indigenous peoples in what is now the United States.

The presence of shared competences within a federal order does not in itself signify a choice in favour of cooperative federalism. Various types of federal pre-emption have been recognized in the jurisprudence of the European Court of Justice: “field”, “obstacle” and “rule” pre-emption. The use of field pre-emption reflects a dual federalist rationale: the total exclusion of the national legislators supports the understanding of two mutually exclusive legislative spheres. Rule pre-emption, by way of contrast, will represent a cooperative federalist paradigm. In the search for the European Community’s federal philosophy, this chapter analyses two substantive policy areas that represent the core of the European Union: the Community’s harmonization policy and the common agricultural policy. As regards the former, the transition from the “old” to the “new” approach to harmonization is identified as a move from a dual to a cooperative federalism. The transition towards a more cooperative federal model can equally be seen in the recent reforms for the Common Agricultural Policy.

This chapter examines the conditions and rules attached to the exercise of self-defence, with particular reference to circumstances involving non-state actors. The requirement of necessity is shown to have added importance in measures against non-state actors. Also examined are the question of a threshold for an attack to be considered an armed attack triggering self-defence, and the concept of accumulation of attacks. The possibility of pre-emptive or anticipatory self-defence against non-state actors is analysed, as is the proportionality of self-defence.

This chapter discusses the importance of recognizing the limits of international cooperation in financing the control of transnational terrorism. It describes some of the characteristics of and trends in transnational terrorism and examines the cooperation challenges in controlling this phenomenon. The result suggests that the pre-emption strategy has the properties of a pure public good while the protection strategy has the characteristics of what economists call a weakest link public good.

Following the 9/11 attacks, al‐Qaeda and other terrorist groups pose a threat, operating with global networks and potentially armed with weapons of mass destruction. To counter these threats, US policy‐makers argued that extreme times justify extreme measures. These include pre‐emptive military action to forestall terrorist attacks and new methods of interrogation to uncover them. Just‐war thinking would license neither the new US doctrine of pre‐emption nor the new interrogation techniques. For an absolutist torture is always wrong, but a consequentialist, such as Dershowitz, justifies torture if it could save lives. To understand why torture is wrong we need to deploy all the resources of virtuous consequentialism, attending not just to the consequences but the internal states and character of the torturer and his victim. We want our public servants to be virtuous. Yet we need our special interrogators to be men or women of vice.

The first section of Subpart B covers the supremacy clause, which declares that federal law is “the supreme law of the land”. The discussion focuses on the issues of concurrent jurisdiction and preemption. The second section covers the Tenth Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. This tautological provision provides a convenient forum in which to discuss states' rights. The materials end by suggesting that democratic “localism”, known in Europe as the principle of subsidiarity, be recognized as a justiciable principle of American constitutional rights.

This chapter looks at how relatively blurry notions of culture and the imagination play a critical role in envisioning the future. In the case of Bush's war on terror, deterrence had been abandoned in favor of pre-emption, in which uncertainty became a reason for action. The abandonment of the commitment to act on hard empirical evidence is the fueling point for a particular kind of imagination. Maintenance of hegemony became the goal of pre-emption, which must always seek out threat in order to reanimate itself. It exists in the gray zone between the empirical and the possible, shuttling between reaffirmations of both strength and weakness, of both invincibility and vulnerability. The main point of this chapter is that in the tortuous playing out of these contradictions, recent United States foreign and domestic policies have appropriated and instrumentalized the basic humanistic and ethical character of the imagination.

The UN Charter regulates the use of force by states. It permits states to use armed force to enforce a limited set of rights under international law. Principally, states may use force in individual or collective self-defense against a significant armed attack. Even in such a case, force may only be used against the state responsible for the armed attack and only to the extent necessary and proportional to the goal of defense. These rules limit the use of major military force to respond to terrorism. The coalition liberation of Kuwait in 1991 is an example of the lawful use of force in self-defense. The coalition use of force against Iraq in 2003 violated the law. International law clearly prohibits uses of force to pre-empt or prevent threats.