Jus Ad Bellum in the Age of WMD Proliferation

This Article will discuss the normative question of what should be the character of the rules and institutions of international law covering international uses of force, in the age of proliferation of weapons of mass destruction (WMD) technologies. It will posit that international use of force law is currently in a state of crisis, precipitated by the proliferation of WMD technologies and the revised set of national security calculations, which determine when and why states choose to use force internationally, that have been thrust upon states as a result. It will review a number of options which have been proposed for changing the substance of international laws and institutions which currently regulate this area, in order to make them responsive to this change in international security realities, and more effective and useful to states. However it will conclude that none of these proposals truly grasps the nettle of the problems facing states in the post-proliferated age, and the challenge of designing and maintaining effective and supportable rules and institutions in this area. It will argue that more fundamental changes to the character of these rules and institutions are necessary if they are to fulfill a needed role in providing standards for international behavior in this most vital area of international relations. Using both international legal theory and international relations theory, it will argue specifically that international law regulating uses of force should be deformalized, and maintained not as legally binding rules, but as politically persuasive norms. This change in the character of rules in this area, it will be argued, would help to preserve the integrity of the rest of the formal corpus of international law, while accomplishing virtually the same results in influencing state behavior and in normativizing international relations in this area, as do the current formal rules of the jus ad bellum.