The Duty to Defend Them: A Natural Legal Justification for the Bush Doctrine of Preventive War

Posted: 13 Jan 2004

Abstract

Part I analyzes the primary customary and treaty-based sources constituting the international legal regime governing self-defense, as well as relevant state practice in the post-Charter era, to evaluate the arguments as to the legality of measures undertaken in anticipation of an armed attack, as well as the continued functionality of the UN Charter framework in the Age of Terror. Part II examines the Bush Doctrine as an expression of a doctrine of preventive war that transcends the debate over the use of armed force in anticipation of an imminent attack. Part III claims that an examination of historical sources of international legal obligation and a less restrictivist, less positivist read of the Charter reveals a natural legal basis for the right, and, even more pointedly, the duty of states to engage in preventive war in order to defend against existential threats. Part IV examines the U.S. Constitution as a domestic expression of a presidential legal duty, arising under natural law, to defend the U.S. against external threats. Part IV asserts the claim that the Bush Doctrine is an expression of the intent to faithfully discharge this natural legal duty and that the doctrine of preventive war it elaborates is not only theoretically consistent with obligations under international law but even promotive of the ends law is intended to secure, even if the exercise of the right to preventive war is subject to some important qualifications. Part V offers proposals to harmonize the Bush Doctrine with the UN Charter and guide formal international legal institutions, including the Security Council and the International Criminal Court, toward enhanced functionality in the simultaneous defense of the natural right of states and peoples to life on the one hand and the promotion of law-governed order and justice in the international system on the other.

Keywords: Preventive war, Bush Doctrine, natural law, anticipatory self-defense, UN Charter, jus ad bellum, International Criminal Court, terrorism

Suggested Citation

Bradford, William C., The Duty to Defend Them: A Natural Legal Justification for the Bush Doctrine of Preventive War. Available at SSRN: https://ssrn.com/abstract=483762

William C. Bradford (Contact Author)

Chiricahua Apache Nation ( email )

Alexandria, VA 22312
United States
703 517 5719 (Phone)

HOME PAGE: http://williamcbradford.com

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