progressive interpretation of law to have to consider, but doing so may lead to a more
realistic and productive attempt to give the law more leverage than it currently has.
A Fundamental Change in Circumstances?: A third point is drawn from the second
and relates to the question of whether all of this represents a temporary phase that will,
sooner rather than later, lead back to a pre-9/11 legal and political atmosphere. If so, then
the current debacle represents a purely unique set of circumstances that may allow the
United States to make legitimate claims of necessity. If not, then it may no longer make
sense to charge the United States with “operating outside the law.” That is, perhaps
international rules as they stand are operating outside a developing new security
framework. Here, the “war powers” prerogatives claimed by the US executive
and
permitted by its allies may foreshadow what we can expect as they continue to fight a
potentially endless war.
The US lead in the “change of circumstance” argument may signal a more lasting
revision of the law and state practice, as states seek more room to maneuver against
terrorism and respond to the in-kind actions that will inevitably result. In other words,
the 9/11 attacks “changed the strategic responsibilities of democratic states,” which in
turn requires a reassessment of treaty law and customary practice. Specifically,
The challenges of asymmetric warfare, nonstate actors, and rogue regimes
do not excuse any decision maker from the solemn duties of prudence, or
from attempting to mobilize the resources of collective machinery. But
they characterize situations requiring that the Charter system adapt itself
to perilous changes in threat and capability, and that democratic states also
work to that end.
This scenario may already reflect today’s reality, echoing as it does a staunch realism that
considers international law to be outdated, part of the problem, and in need of extensive
readaptation.
17
While the judiciary has weighed in the question of detention of combatants in wartime and there has been
congressional debate on the executive’s policies, in the end neither to date has succeeded in restricting US
behavior, never mind setting in motion mechanisms needed to hold officials accountable for them.
18
Ruth Wedgwood, “The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-
Defense” 97 AJIL 576 (2003).
19
John Bolton, now US Ambassador to the United Nations, explains: “The rest of the world may not like
that approach, but abandoning it is the first step to abandoning the United States of America. International
law is not law; it is a series of political and moral arrangements that stand or fall on their own merits, and
anything else is simply theology and superstition masquerading as law.”
“Is There Really ‘Law’ in
International Affairs?” 10 Transnat'l Law. & Contemp. Problems 1 (Spring, 2000).
12
Convention