These points comprise a complex problematic, one that to some represents a clash of
worldviews. What this paper instead argues is that what we have in front of us is not so
much an intractable battle of paradigms but rather the initial phases in a search for an as-
yet elusive third way of approaching the issue of “law or not law.”
Classifying the War on Terror
What are the factors that create such a tug of war between those who argue for
flexibility and those who argue for vigilance? Three such challenges are identified as
follows:
Competing Rights and Obligations: One tension is rooted in the question of whether
the war on terror is a matter of law or a matter of policy. If the answer – which really
must be determined by states – turns out to favor law, then states remain constrained by
the agreements to which they formally committed themselves. Put another way, states
will send the message that the purpose of the law is to facilitate collective responses to
collective threats, including terrorism. In this regard, states are obliged to balance and
proportion their perceived defensive actions against the outcomes these actions will
produce and against states’ humanitarian obligations that are (obviously) especially
important in times of war. Further, if states in their words and actions deem that the war
on terror is a matter for the collective security framework to guide, then the states thus
obligate themselves to fall back on the longstanding criteria when operationalizing key
terms, such as “defense” and “humanitarian obligations.” Clear criteria for defining and
responding to terrorist threats might also be developed as part of this broad commitment.
Further, states seeking to act must ask for and receive the go-ahead from other states on
the UN Security Council.
In facilitating collective consensus and action, the law does not leave much room
for unilateral interpretations of these criteria. Nor – assuming the requesting state cares
enough to secure it – is Security Council authorization likely to be forthcoming if the
proposed actions would have disproportionate and unpredictable consequences,
especially when other options are available. Indeed, the Security Council debates in
January/February 2003 reflect a majority desire to privilege inspections and avoid war, a
trajectory that compelled the United States to withdraw its request for Council
authorization and to act more or less unilaterally in Iraq.
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Convention