¹ Obama, Barack, “Remarks by the President to the UN General Assembly” (speech delivered at the United Nations General Assembly, 25 September 2012), online: White House <http://www.whitehouse.gov/the-press-office/2012/09/25/remarks-president-un-general-assembly>..>Google Scholar

² Interview of Hans Blix, former head of the International Atomic Energy Agency (IAEA) and former UN weapons inspector in Iraq, by Lowe, Rebecca (17 April 2012) in Blix Condemns “Shocking” Lack of Legal Debate over Iran Nuclear Threat, online: International Bar Association <http://www.ibanet.org/Article/Detail.aspx?ArticleUid=42842918-96dc-4682-900c-ef86bddcb5dc>..>Google Scholar See also Malik, Shiv, “Hans Blix Urges Britain to Relinquish Trident Nuclear Programme,” The Guardian (26 May 2013), online: The Guardian <http://www.theguardian.com/world/2013/may/26/hans-blix-trident-abandon-britain-nuclear>.Google Scholar

³ Dunn, David Hastings, “‘Real Men Want to Go to Tehran’: Bush, Pre-emption and the Iranian Nuclear Challenge” (2007) 83:1 Int’l Affairs 19 at 26.CrossRefGoogle Scholar See also Oborne, Peter and Morrison, David, A Dangerous Delusion: Why the West Is Wrong about Nuclear Iran (London: Elliott and Thompson, 2013) at 95–96.Google Scholar

⁴ Richelson, Jeffrey T, Spying on the Bomb: American Nuclear Intelligence from Nazi Germany to Iran and North Korea (New York: WW Norton and Company 2006) at 505–6.Google Scholar

⁵ Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 749 UNTS 1 (in force 5 March 1970), online: IAEA <http://www.iaea.org/Publications/Documents/Treaties/npt.html> [NPT]. There are currently 190 states parties to the NPT, including the five (recognized) nuclear weapons states. On 11 May 1995, the Review and Extension Conference of the Parties to the NPT decided that the treaty should continue in force indefinitely, in accordance with Article X(2) of the NPT.

⁶ See, for example, United States, National Intelligence Council, National Intelligence Estimate — Iran: Nuclear Intentions and Capabilities (Washington, DC: National Intelligence Council, November 2007), online: <http://www.dni.gov/files/documents/Newsroom/Reports%20and%20Pubs/20071203_release.pdf> [2007 US National Intelligence Estimate]; Mazzetti, Mark, “US Says Iran Ended Atomic Arms Work,” New York Times (3 December 2007), online: New York Times <http://www.nytimes.com/2007/12/03/world/middleeast/03cnd-iran.htmP_ r=2&hp&oref=slogin&> Google Scholar; Albright, David and Brannan, Paul, “US Intelligence Estimates and the Iranian Nuclear Program” (9 April 2012), online: Institute for Science and International Security <http://isis-online.org/uploads/isis-reports/documents/US_Intelligence_Estimates_and_the_Iranian_Nuclear_Program_9April2012.pdf> Google Scholar; Zakaria, Tabassum and Hosenball, Mark, “Special Report: Intel Shows Iran Nuclear Threat Not Imminent,” Reuters (23 March 2012), online: Reuters <http://www.reuters.com/article/2012/03/23/us-iran-usa-nuclear-idUSBRE82M0G020120323>.Google Scholar

⁷ Obama, supra note 1.

⁸ See, for example, Netanyahu, Benjamin, “Address to the UN General Assembly” (speech delivered to the United Nations General Assembly, 27 September 2012), online: Jewish Press <http://www.jewishpress.com/news/un/pm-netanyahus-speech-to-the-united-nations-general-assembly-in-new-york/2012/09/27/5/> >Google Scholar; Patrikarakos, David, Nuclear Iran, The Birth of an Atomic State (London: IB Tauris, 2012) at 271–72.Google Scholar

⁹ Patrikarakos, supra note 8 at 243–46.

¹⁰ Oborne and Morrison, supra note 3 at 62–65.

¹¹ That is, the negotiations between Iran and the five permanent members of the Security Council, being the United States, Russia, China, France, and the UK. They are joined by Germany, as well as the High Representative for Foreign Affairs and Security Policy for the European Union (EU). See Joint Plan of Action (24 November 2013), online: EU <http://eeas.europa.eu/statements/docs/2013/131124_03_en.pdf>.

¹² Under the Joint Plan of Action, supra note 11, Iran has agreed to curtail certain of its uranium enrichment activities, not to commission the Arak heavy water reactor and to allow greater access to IAEA inspectors. In return, it has been granted limited sanctions relief, including access to around US $4 billion in hitherto frozen overseas bank accounts. The deadline for reaching a comprehensive agreement on Iran’s nuclear program — originally set to expire on 20 July 2014 — has been extended by a further four months, to 24 November 2014.

¹³ Blomfield, Adrian, “Assassination of Iranian Nuclear Scientist Is a Familiar Story,” Daily Telegraph (11 January 2012), online: The Telegraph <http://www.telegraph.co.uk/news/worldnews/middleeast/iran/9007055/Assassination-of-Iranian-nuclear-scientist-is-a-familiar-story.html> Google Scholar; Vick, Karl and Klein, Aaron J, “Who Assassinated an Iranian Nuclear Scientist? Israel Isn’t Telling,” Time (13 January 2012) online: Time <http://content.time.com/time/world/article/0,8599,2104372,00.html> Google Scholar; Patrikarakos, supra note 8 at 269–70.

¹⁴ Sanger, David E, “Obama Order Sped Up Wave of Cyberattacks against Iran,” New York Times (1 June 2012), online: New York Times <http://www.nytimes. com/2012/06/01/world/middleeast/obama-ordered-wave-of-cyberattacks-against-iran.html?ref=stuxnet&_r=0> Google Scholar; Finkle, Jim, “Researchers Say Stuxnet Was Deployed against Iran in 2007,” Reuters (26 February 2013), online: Reuters <http://www.reuters.com/article/2013/02/26/us-cyberwar-stuxnet-idUSBRE91P0PP20130226> Google Scholar; Patrikarakos, supra note 8 at 264–66.

¹⁵ Patrikarakos, supra note 8 at 257–63, 272–79. On the missteps and squandering of opportunities on the part of both the Obama administration and the Iranian regime in their dealings with each other, see Parsi, Trita, A Single Roll of the Dice: Obama’s Diplomacy with Iran (New Haven, CT: Yale University Press, 2012).Google Scholar

¹⁶ Yukiya Amano, director-general of the IAEA, “Iran Nuclear Talks Going Round in Circles — IAEA Chief,” BBC News (3 June 2013), online: BBC <http://www.bbc.co.uk/news/world-middle-east-22756844>.

¹⁷ Norman, Laurence and Solomon, Jay, “Iran, U.S. Talks Seen As ’Good Start’,” Wall Street Journal (26 September 2013), online: Wall Street Journal <http://online.wsj.com/news/articles/SB10001424052702304526204579099692881998588>.Google Scholar

¹⁸ Heller, Jeffrey, “Israel, Saudis Speaking Same Language on Iran: Livni,” Reuters (24 October 2013), online: Reuters <http://www.reuters.com/article/2013/10/24/us-israel-saudi-diplomacy-idUSBRE99N0NO20131024> Google Scholar; Aneja, Atul, “Israel, Saudi Arabia Unhappy with U.S. on Iran Outreach,” The Hindu (25 October 2013), online: The Hindu <http://www.thehindu.com/todays-paper/tp-international/israel-saudi-arabia-unhappy-with-us-on-iran-outreach/article5270385.ece> Google Scholar.

¹⁹ See Lewis, Paul, “Hopes Raised for US-Iran Talks but Hawks in Congress Threaten Any Deal,” Guardian (3 October 2013), online: Guardian <http://www.the guardian.com/world/2013/oct/03/us-iran-talks-threatened-congress-sanctions> Google Scholar; Pecquet, Julian, “Iran Debate Shifts to the House,” Al-Monitor (21 May 2014), online: Al-Monitor <http://www.al-monitor.com/pulse/originals/2014/05/iran-debate-house-franks-nuclear-deal.html?utm_source=dlvr.it&utm_medium =twitter> Google Scholar.

²⁰ Abrahamian, Ervand, “Empire Strikes Back: Iran in US Sights” in Schiffrin, André, ed, Inventing the Axis of Evil: The Truth about North Korea, Iran, and Syria (New York: New Press, 2004) 98.Google Scholar See also Oborne and Morrison, supra note 3 at 3841; Linzer, Dafna, “Past Arguments Don’t Square with Current Iran Policy,” Washington Post (27 March 2005) online: Washington Post <http://www.washingtonpost.com/wp-dyn/articles/A3983-2005Mar26.html> Google Scholar; Patrikarakos, supra note 8 at 14–47.

²¹ Müller, Harald, “Nukleare Krisen und transatlantischer Dissens, Amerikanische und europäische Antworten auf aktuelle Probleme der Weiterverbreitung von Kernwaffen” (2003) HSFK-Report 9/2003 1 at 5 Google Scholar; Greenblum, Benjamin M, “The Iranian Nuclear Threat: Israel’s Options under International Law” (2006–07) 29 Hous J Int’l L, 55 at 61.Google Scholar Ansari, Ali M, Confronting Iran, The Failure of American Foreign Policy and the Roots of Mistrust (London: Hurst and Company, 2006) at 199–200,Google Scholar points out that this was well-known in the United States. See also Chubin, Shahram, Iran’s Nuclear Ambitions (Washington DC: Carnegie Endowment for International Peace, 2006) at 7 Google Scholar; Patrikarakos, supra note 8 at 58–70.

²² Pollack, Kenneth M, The Persian Puzzle: The Conflict between Iran and America (New York: Random House Trade, 2005) at 258.Google Scholar

²³ Abrahamian, supra note 20 at 137, n 93, quoting from a report in the Christian Science Monitor. See also Patrikarakos, supra note 8 at 59–60.

²⁴ Pollack, supra note 22 at 259; Müller, supra note 21 at 6.

²⁵ Simpson, John, “Iran’s Nuclear Capability and Potential to Develop Atomic Weapons” in The Emirates Center for Strategic Studies and Research, ed, Iran’s Nuclear Program, Realities and Repercussions (Abu Dhabi: Emirates Center for Strategic Studies and Research, 2006) 11 at 11 Google Scholar; Müller, supra note 21 at 6; Chubin, supra note 21 at 7, 19.

²⁶ Pollack, supra note 22 at 259; Chubin supra note 21 at 7. See also Abrahamian, supra note 20 at 137, suggesting the program was relaunched in the early 1990s.

²⁷ Simpson, supra note 25 at 30–32; Greenblum, supra note 21 at 69; Oborne and Morrison, supra note 3 at 95–96.

²⁸ Dunn, supra note 3 at 25–26; Richelson, supra note 4 at 503–5; Simpson supra note 25 at 11; Greenblum, supra note 21 at 62–63.

²⁹ That is, the National Council of Resistance of Iran, a coalition comprising various Iranian opposition groups, the most prominent of which, Mojahideen-e-Khalq, was previously viewed as a terrorist organization by the United States and numerous European countries. See Pollack, supra note 22 at 361; Ansari, supra note 21 at 198; Müller, supra note 21 at 7.

³⁰ Greenblum, supra note 21 at 62.

³¹ Müller, supra note 21 at 8.

³² Noyes, James, “Iran’s Nuclear Program: Impact on the Security of the GCC” in Emirates Center for Strategic Studies and Research, ed, Iran’s Nuclear Program, Realities and Repercussions (Abu Dhabi: Emirates Center for Strategic Studies and Research, 2006) 63 at 70–71.Google Scholar

³³ Dunn, supra note 3 at 25–26; Simpson, supra note 25 at 11; George Perkovich, “Iran’s Nuclear Program after the 2005 Elections” in Emirates Center for Strategic Studies and Research, supra note 32, 37 at 38–39.

³⁴ Simpson, supra note 25 at 11; Abrahamian, supra note 20 at 139.

³⁵ Noyes, supra note 32 at 68; Chubin, supra note 21 at 11, 15.

³⁶ Dunn, supra note 3 at 24; Chubin, supra note 21 at 14.

³⁷ Bush, George W, “2002 State of the Union Address” (speech delivered to the US Congress, 29 January 2002), online: Washington Post <http://www.washingtonpost.com/wp-srv/onpolitics/transcripts/sou012902.htm>..>Google Scholar

³⁸ House, White, National Security Strategy of the United States of America (March 2006), online: White House <http://georgewbush-whitehouse.archives.gov/nsc/nss/2006/> [NSS 2006]+[NSS+2006]>Google Scholar; Seymour M Hersh, “Preparing the Battlefield,” New Yorker (7 July 2008) online: New Yorker <http://www.newyorker.com/reporting/2008/07/07/080707fa_fact_hersh?currentPage=all>; Dunn, supra note 3 at 19, 34; Perkovich, supra note 33 at 53-54; Noyes, supra note 32 at 65, Abrahamian, supra note 20 at 96; Ansari, supra note 21 at 204; Müller, supra note 21 at 33; Chubin, supra note 21 at 21.

³⁹ Noyes, supra note 32 at 66; Abrahamian, supra note 20 at 139; Patrikarakos, supra note 8 at 60.

⁴⁰ Simpson, supra note 25 at 11; Dunn, supra note 3 at 36. Nagan, Winston P and Hammer, Craig, “The New Bush National Security Strategy and the Rule of Law” (2004) 22:3 Berkeley J Int’l L 375 at 433–34,Google Scholar make the same point in regard to Iraq’s interest in acquiring nuclear weapons. Although, as Parsi points out, Iran and Israel have in the past been prepared to co-operate to further mutual interests. Parsi, supra note 15 at 20–23.

⁴¹ Henderson, Christian, “The Bush Doctrine: From Theory to Practice” (2004) 9 J Confl & Sec L 3 at 19 CrossRefGoogle Scholar; Abrahamian, supra note 20 at 139; Chubin, supra note 21 at 8.

⁴² Dunn, supra note 3 at 25; Falk, Richard, “The Illegitimacy of the Non-Proliferation Regime” (1997) 4 Brown J World Affairs 73 at 78 Google Scholar; Ansari, supra note 21 at 201.

⁴³ Kuppuswamy, Chamundeeswar, “Is the Nuclear Non-Proliferation Treaty Shaking at Its Foundations? Stock Taking after the 2005 NPT Review Conference” (2006) 11 J Confl & Sec L 141 at 149 CrossRefGoogle Scholar; Dunn, supra note 3 at 36; Said Aly, Abdel Monem, “In the Shadow of the Israeli Nuclear Bombs: Egyptian Threat Perceptions” (1996) 3 Brown J World Affairs 151 at 152–53Google Scholar; Falk, supra note 42 at 77; Noyes, supra note 32 at 74–75; Lodgaard, Sverre, “Bombing Iran: Is It Avoidable?” in Emirates Center for Strategic Studies and Research, supra note 32, 113 at 113 Google Scholar; Ansari, supra note 21 at 201; Chubin, supra note 21 at 126; Oborne and Morrison, supra note 3 at 32–34.

⁴⁴ Dunn, supra note 3 at 23; Noyes, supra note 32 at 69; Henderson, supra note 41 at 19.

⁴⁵ Quoted in Roberts, Guy B, “The Counterproliferation Self-Help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction” (1998–99) 27 Denver J Int’l L & Pol’y 483 at 498.Google Scholar Graham, Thomas Jr, “National Self-Defense, International Law, and Weapons of Mass Destruction” (2003) 4 Chicago J Int’l L 1 at 12,Google Scholar attributes this statement to Indian Defence Secretary Fernandez.

⁴⁶ Kuppuswamy, supra note 43 at 150; Simpson, supra note 25 at 11; Perkovich, supra note 33 at 37, 40; Noyes, supra note 32 at 65, 67; Chubin, supra note 21 at 16, 113.

⁴⁷ Lodgaard, supra note 43 at 115.

⁴⁸ Such as denying the Holocaust or stating that Israel must be “wiped off” the map — although some claim the latter threat was never made and can be traced back to an incorrect translation. See, for example, Oborne and Morrison, supra note 3 at 79–80; Pollack, supra note 22 at 376.

⁴⁹ Dunn, note supra 3 at 33; Perkovich, supra note 33 at 58–59; Greenblum, supra note 21 at 81–82.

⁵⁰ Perkovich, supra note 33 at 58.

⁵¹ Kuppuswamy, supra note 43 at 149; Dunn, supra note 3 at 32; Noyes, supra note 32 at 75–77; Pollack, supra note 22 at 377; Müller, supra note 21 at 31; Chubin, supra note 21 at 129.

⁵² Beres, Louis René, “Israel, Iran and Preemption: Choosing the Least Unattractive Option under International Law” (1995–96) 14 Dick J Int’l L 187 at 189–91Google Scholar; Chubin, supra note 21 at 119.

⁵³ Beres, supra note 52 at 197–98; Greenblum, supra note 21 at 79–80.

⁵⁴ Müller, supra note 21 at 10; Chubin, supra note 21 at 130–33; Aly, supra note 43 at 157. See also Hersh, Seymour M, The Samson Option, Israel, America and the Bomb (London: Faber and Faber, 1993) at 225–40,Google Scholar stating that during the 1973 Arab-Israeli War, Israel seriously contemplated using nuclear weapons.

⁵⁵ Lodgaard, supra note 43 at 115–16; Chubin, supra note 21 at 115–17, 125; Oborne and Morrison, supra note 3 at 20, 90.

⁵⁶ See Chubin, supra note 21 at 115–17 (quoting former US Secretary of State Condoleezza Rice: “No one wants to see a Middle East that is dominated by an Iranian hegemony … Iran is pursuing policies in the Middle East that are, if not 180, 170 degrees counter to the kind of Middle East that we would build”); Kuppuswamy, supra note 43 at 150. See also Dunn, supra note 3 at 25, 32.

⁵⁷ Ansari, supra note 21 at 234. See also Chubin, supra note 21 at 115.

⁵⁸ See, for example, The White House, National Security Strategy of the United States of America (May 2010), online: <http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf> at 24 [NSS 2010].

⁵⁹ Pleitgen, Frederik and Cohen, Tom, “‘War-Weary’ Obama Says Syria Chemical Attack Requires Response,” CNN (30 August 2013), online: CNN <http://edition.cnn.com/2013/08/30/world/europe/syria-civil-war/> Google Scholar; “U.S. Secretary of State Kerry Makes Statement on Syria,” Reuters (30 August 2013), online: Reuters <http://www.reuters.com/article/2013/08/30/us-syria-crisis-kerry-transcript-idUSBRE97T0RR20130830>; “Obama Says US Has ’Obligation’ to Act on Syria, Cites Intel Findings,” Fox News (30 August 2013), online: Fox News <http://www.foxnews.com/politics/2013/08/30/kerry-says-clear-evidence-chemical-weapons-used-in-syria-as-intelligence/>.

⁶⁰ IAEA, Information Circular: Text of the Agreement between Iran and the IAEA for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, Doc INFCIRC/214 (15 May 1974), online: IAEA <http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf> [Safeguards Agreement].

⁶¹ Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards, Doc INFCIRC540 (Corr) (May 1997), online: IAEA <http://www.iaea.org/Publications/Documents/Infcircs/1997/infcirc540c.pdf>. To date, 124 states have concluded additional protocols with the IAEA that are now in force. See IAEA, Safeguards and Verifications: Status of Additional Protocols (as of 6 August 2014), online: IAEA <http://www.iaea.org/safeguards/protocol.html>.

⁶² See, for example, IAEA, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, Report of 28 April 2006, Doc GOV/2006/27 (2006) at 7, online: IAEA <http://www.iaea.org/Publications/Documents/Board/2006/gov2006-27.pdf>.

⁶³ Statute ofthe International Atomic Energy Agency, 276 UNTS 3 (in force 29 July 1957), online: IAEA <http://www.iaea.org/About/statute.html>. This step was possible under Article 19 of the Safeguards Agreement, supra note 60; IAEA, Implementation ofthe NPT Safeguards Agreement in the Islamic Republic of Iran, Resolution of 4 February 2006, Doc GOV/2006/14 (2006) at 2, paras 2, 4, online: IAEA <http://www.iaea.org/Publications/Documents/Board/2006/gov2006-14.pdf>.

⁶⁴ IAEA, Implementation of the NPT Safeguards Agreement and Relevant Provisions of United Nations Security Council Resolutions in the Islamic Republic of Iran, Resolution of 13 September 2012, Doc GOV/2012/50 (2012) at paras 1–3, online: IAEA <http://www.iaea.org/Publications/Documents/Board/2012/gov2012-50.pdf>.

⁶⁵ IAEA, Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, Report of 21 February 2013, Doc GOV/2013/6 (2013) at paras 62, 65, online: IAEA <http://www.iaea.org/Publications/Documents/Board/2013/gov2013-6.pdf>.

⁶⁶ UN Security Council (SC) Resolution 1696, UNSCOR, 2006, UN Doc S/ RES/1696 (2006); SC Resolution 1737, UNSCOR, 2007, UN Doc S/RES/1737 (2007); SC Resolution 1747, UNSCOR, 2007, UN Doc S/RES/1747 (2007); SC Resolution 1803, UNSCOR, 2008, UN Doc S/RES/1803 (2008); SC Resolution 1835, UNSCOR, 2009, UN Doc S/RES/1835 (2009); SC Resolution 1929, UNSCOR, 2010, UN Doc S/RES/1929 (2010). At the time of writing, there have been four further UNSC resolutions renewing the mandate of the Iran Sanctions Committee: SC Resolution 1984, UNSCOR, 2011, UN Doc S/RES/1984 (2011); SC Resolution 2049, UNSCOR, 2012, UN Doc S/RES/2049 (2012) ; SC Resolution 2105, UNSCOR, 2013, UN Doc S/RES/2105 (2013); and SC Resolution 2159, UNSCOR, 2014, UN Doc S/RES/2159 (2014).

⁶⁷ Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 (in force 24 October 1945), art 41 [UN Charter].

⁶⁸ EC, Council Regulation (EU) 264/2012 of 23 March 2012 amending Regulation (EU) No 359/2011 Concerning Restrictive Measures Directed against Certain Persons, Entities and Bodies in View ofthe Situation in Iran, [2012] OJ, L87/26; EC, Council Regulation (EU) No 267/2012 of 23 March 2012 Concerning Restrictive Measures against Iran and Repealing Regulation (EU) No 961/2010, [2012] OJ L88/1.

⁶⁹ The Iran Freedom and Counter-Proliferation Act (Subtitle D of Title XII of National Defence Authorization Act for Fiscal Year 2013, Pub L No 112–239, 112th Cong, 2 January 2013) imposes, in combination with Executive Order 13645 of 3 June 2013 (78 FR 33945, 5 June 2013), a wide range of sanctions even on non-US companies and financial institutions, including those deemed to be providing support to key Iranian industries. The measures took effect on 1 July 2013. For reporting on enforcement of the sanctions notwithstanding an interim deal between Iran and the P5+1 on Iran’s nuclear program, see Gladstone, Rick, “U.S Issues Penalties over Violations of Iran Sanctions,” New York Times (6 February 2014), online: New York Times <http://www.nytimes.com/2014/02/07/world/middleeast/us-issues-penalties-over-violations-of-iran-sanctions.html?_r=0>.Google Scholar President Obama has also chosen to maintain, for a further year from 15 March 2014, the national emergency with respect to Iran declared by President Clinton in Executive Order 12957 of 15 March 1995 (60 FR 14616, 17 March 1995): see Notice to the Congress: Continuation of the National Emergency with Respect to Iran, White House Press Release, Washington, DC (12 March 2014), online: White House <http://www.whitehouse.gov/the-press-office/2014/03/12/notice-congress-continuation-national-emergency-respect-iran>.

⁷⁰ Andem, Maurice, “The Treaty on the Non-Proliferation of Nuclear Weapons (NPT)” (1995) 64 Nordic J Int’l L 575 at 585.CrossRefGoogle Scholar

⁷¹ The International Court of Justice (ICJ) has reaffirmed that Article VI of the NPT imposes an international obligation. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 at paras 102–3, 105 (F). See also Moore, Mike, “Can the Nuclear Powers Continue to Have It Both Ways?” (1997) 4 Brown J World Affairs 83 at 86–87.Google Scholar

⁷² Malone, Kelly J, “Preemptive Strikes and the Korean Nuclear Crisis: Legal and Political Limitations on the Use of Force” (2003) 12 Pac Rim L & Pol’y J 807 at 828 Google Scholar; Andem, supra note 70 at 583; Falk, supra note 42 at 76, 79–80; Moore, supra note 71 at 85; Graham, supra note 45 at 14–15.

⁷³ Comprehensive Nuclear-Test-Ban Treaty, UN Doc A/50/1027 (1996) (not yet in force). The US Senate rejected ratification in 1999. See Graham, supra note 45 at 14; Nagan and Hammer, supra note 40 at 400, 402.

⁷⁴ “Remarks by President Barack Obama” (speech delivered at Hradcany Square, Prague, Czech Republic, 5 April 2009), online: White House: <http://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Delivered>.

⁷⁵ Stockholm International Peace Research Institute, “Nuclear Force Reductions and Modernizations Continue; Drop in Peacekeeping Troops; No Progress in Cluster Munitions Control—New SIPRI Yearbook out Now,” Press Release (3 June 2013); “Nuclear Forces Reduced While Modernizations Continue, says SIPRI,” Press Release (16 June 2014) online: Stockholm International Peace Research Institute <http://www.sipri.org/media/pressreleases/2013/YBlaunch_2013>; <http://www.sipri.org/media/pressreleases/2014/nuclear_May_2014>.

⁷⁶ Falk, supra note 42 at 73–74, 76–77; Lodgaard, supra note 43 at 113.

⁷⁷ Joint Statement by President George W Bush and Prime Minister Manmohan Singh, White House Press Release, Washington, DC (18 July 2005), online: US Dept of State Archive <http://2001-2009.state.gov/p/sca/rls/pr/2005/49763.htm>. The name for such agreements derives from section 123 of the US Atomic Energy Act of 1954, Pub L 83–703, which governs co-operation between the United States and other states on nuclear matters.

⁷⁸ United States-India Nuclear Cooperation Approval and Non-proliferation Enhancement Act, Pub L 110–369, 110th Cong (8 October 2008).

⁷⁹ It should be noted that France almost immediately followed suit, concluding an agreement on nuclear co-operation with India in 2008. See “Text of Indo-France Nuclear Deal,” Times of India (30 September 2008), online: Times of India <http://timesofindia.indiatimes.com/india/Text-of-Indo-France-nuclear-deal/articleshow/3545557.cms>; “India and France in Nuclear Deal,” BBC News (30 September 2008), online: BBC <http://news.bbc.co.uk/1/hi/7644377.stm>.

⁸⁰ Agreement between the Government of India and the International Atomic Energy Agency for the Application of Safeguards to Civilian Nuclear Facilities, Doc INFCIRC754 (29 May 2009) (in force 11 May 2009), online: IAEA <http://www.iaea.org/Pub-lications/Documents/Infcircs/2009/infcirc754.pdf>.

⁸¹ Kuppuswamy, supra note 43 at 145; Oborne and Morrison, supra note 3 at 36–37. See also “India Joins World Nuclear Club amid Warnings over Spread of Weapons,” The Times (8 September, 2008) 33, reporting on the decision of the Nuclear Suppliers’ Group (founded to combat proliferation, and made up of forty-five states that supply nuclear technology) to allow nuclear technology exports to India despite India not being a state party to the NPT.

⁸² See SC Resolution 487, UNSCOR, 1981, UN Doc S/RES/487 (1981) at operative para 5.

⁸³ See Hersh, supra note 54 at 225–40, 262–83 (describing US support notwithstanding its awareness of Israeli nuclear efforts from the 1950s onwards). See also Nagan and Hammer, supra note 40 at 434 (arguing that a “single nuclear power in the Middle East” is a “major security threat for all states and peoples in the region”); Falk, supra note 42 at 77; Kuppuswamy, supra note 43 at 150; Aly, supra note 43 at 153–54; Noyes, supra note 32 at 74–75; Lodgaard, supra note 43 at 113, 138–39; Oborne and Morrison, supra note 3 at 32–34; Patrikarakos, supra note 8 at 152–53.

⁸⁴ See Centre for Arms Control and Non-Proliferation, India-Pakistan Sanctions Legislation Factsheet, online: <http://armscontrolcenter.org/issues/nonproliferation/articles/india_pakistan_sanctions/#>.

⁸⁵ Whereby claimants alleging treaty violations by another party must themselves not be at fault. See Diversion of Water from the River Meuse (Netherlands v Belgium) (1937), PCIJ (Ser A/B) No 70 at 24–25.

⁸⁶ White House, National Security Strategy of the United States of America (September 2002), online: <http://www.state.gov/documents/organization/63562.pdf> at 14 [NSS 2002].

⁸⁷ Ibid at 15.

⁸⁸ NSS 2006, supra note 38 at 2, 20. President Obama refers to “outliers” rather than “rogue states.” “’Outliers Like Iran and North Korea’ Are Exceptions to New Policy on Nukes, Obama Says,” NY Daily News (6 April 2010), online: NY Daily News <http://www.nydailynews.com/news/politics/outliers-iran-north-korea-exceptions-new-policy-nukes-obama-article-1.163742>.

⁸⁹ NSS 2010, supra note 58.

⁹⁰ “President Obama’s Speech to the General Assembly,” supra note 1; “Obama Says Iran Nuclear Row ‘Larger’ Than Syria Crisis,” BBC News (15 September 2013), online: BBC News <http://www.bbc.co.uk/news/world-middle-east-24102723>; Shwayder, Maya, “Panetta: US May Have to Use Force against Iran,” Jerusalem Post (1 November 2013), online: Jerusalem Post <http://www.jpost.com/Iranian-Threat/News/Panetta-US-may-have-to-use-military-force-against-Iran-330373>.Google Scholar

⁹¹ On the problem of inconsistent usage of terms in this area, see Kaufman, Whitley RP, “What’s Wrong with Pre-emptive War?” (paper delivered at the Joint Services Conference on Professional Ethics, 27–28 January 2005), online: <http://isme.tamu.edu/JSCOPE05/Kaufman05.html>..>Google Scholar

⁹² An 1837 incident in which the American ship Caroline was attacked by British troops because of its supposed use in aiding rebels seeking to overthrow British rule in Canada.

⁹³ Letter from Daniel Webster to Lord Ashburton (27 July 1842), online: Yale Law School, the Avalon Project <http://avalon.law.yale.edu/19th_century/br-1842d.asp#web1>.

⁹⁴ Ibid.

⁹⁵ Dinstein, Yoram, War, Aggression and Self-Defence, 4th edition (Cambridge: Cambridge University Press, 2005) at 184–85CrossRefGoogle Scholar; Paul, Joel R, “The Bush Doctrine: Making or Breaking Customary International Law?” (2003–04) 27 Hastings Int’l & Comp L Rev 457 at 463.Google Scholar

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⁹⁹ “Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat.” NSS 2002, supra note 86 at 15 [emphasis added].

¹⁰⁰ “The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction — and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place ofthe enemy’s attack!” Ibid [emphasis added].

¹⁰¹ See, for example, Collins, Jeff, “The Case for Pre-emption (Not Prevention) in Public International Law,” Globalized World Post (23 January 2012), online: Globalized World Post <http://thegwpost.com/2012/01/23/the-case-for-pre-emption-not-prevention-in-public-international-law/>.Google Scholar Mulcahy and Mahony, supra note 97 at 237, also seem to use “anticipatory” as an all-encompassing term that can include the preventive use of force: “[I]t should not be forgotten that the use of anticipatory self-defence where there is an emerging threat is permissible under the Charter regime where the Security Council gives its consent.”

¹⁰² Glennon, Michael J, “The UN Security Council in a Unipolar World” (2003–04) 44 Va J Int’l L 91 at 98–100.Google Scholar A more nuanced version of this argument can be found in Glennon, Michael J, “The Rise and Fall of the UN Charter’s Use of Force Rules” (2003–04) 27 Hastings Int’l & Comp L Rev 497.Google Scholar

¹⁰³ Glennon, “The UN Security Council,” supra note 102 at 94, 102.

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¹⁰⁹ UN Charter, supra note 67, art 2(4).

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¹¹¹ D’Amato himself acknowledged that the contrary view “commands some support in the travaux préparatoires.” D’Amato, , supra note 108 at 585.Google Scholar

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¹¹⁴ Beyerlin, Ulrich, “Die israelische Befreiungsaktion von Entebbe in völkerrechtlicher Sicht” (1977) ZaöRV 213 at 216–19Google Scholar; Hakenberg, Michael, Die Iran-Sanktionen der USA während der Teheraner Geiselaffäre aus völkerrechtlicher Sicht (Frankfurt: Peter Lang, 1988) at 240 Google Scholar; Zedalis, supra note 112 at 222; Schachter, supra note 112 at 330.

¹¹⁵ Corfu Channel Case (United Kingdom v Albania), Merits, [1949] ICJ Rep 4 at 34–35 [Corfu Channel] (although the ICJ did not specifically mention Article 2(4), it seems UK activities in Albanian waters would not have contravened Article 2(4) if the restrictive interpretation were correct); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 14 at paras 187–201 [Nicaragua]; Rowles, James P, “Military Responses to Terrorism: Substantive and Procedural Constraints in International Law” (1987) 81 Am Soc Int’l L Rev 307 at 309 Google Scholar; Declaration on Inadmissibility of Intervention in Domestic Affairs of States and Protection of Their Independence and Sovereignty, GA Res 2131 (XX), UNGAOR, 20th Sess, UN Doc A/RES/20/2131 (1965); Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, GA Res 2625(XXV), UNGAOR, 25th Sess, UN Doc A/RES/25/2625 (1970); Definition of Aggression, GA Res 3314 (XXIX), UNGAOR, 29th Sess, UN Doc A/RES/3314 (XXIX) (1974).

¹¹⁶ See text accompanying note 175 in this article.

¹¹⁷ Sloss, supra note 96 at 50–53.

¹¹⁸ NSS 2002, supra note 86 at 15.

¹¹⁹ Ibid, preamble.

¹²⁰ Cited in Bethlehem, Daniel, “Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors” (2012) 106 AJIL 770 at 771.Google Scholar

¹²¹ Cited in ibid at 772.

¹²² Cited in ibid.

¹²³ See, for example, ibid at 774; Guruli, supra note 96 at 119; Stromseth, Jane E, “Law and Force after Iraq: A Transitional Moment” (2003) 97 AJIL 628 at 638 CrossRefGoogle Scholar (pleading, however, for a more moderate adjustment than envisaged by the Bush doctrine); Wedgwood, Ruth, “The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense” (2003) 97 AJIL 576 at 582 CrossRefGoogle Scholar; Yoo, John, “International Law and the War in Iraq” (2003) 97 AJIL 563 at 573 CrossRefGoogle Scholar; Nydell, Matt S, “Tensions between International Law and Strategic Security: Implications of Israel’s Preemptive Raid on Iraq’s Nuclear Reactor” (1983–84) 24 Va J Int’l L 459 at 488 Google Scholar (merely stating, however, that nuclear weapons pose a “new challenge” to the concept of necessity and imminence); Silverberg, Marshall, “International Law and the Use of Force: May the United States Attack the Chemical Plant at Rabta?” (1990) 13 BC Int’l & Comp L Rev 53 at 58 Google Scholar; Newcomb, Mark E, “Non-Proliferation, Self-Defense, and the Korean Crisis” (1994) 27 Vand J Transnat’l L 603 at 620.Google Scholar

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¹²⁶ Council on Foreign Relations, The Bush Administration’s Doctrine of Preemption (and Prevention): When How, Where? (1 February 2004), online: Council of Foreign Relations <http://www.cfr.org/world/bush-administrations-doctrine-preemp-tion-prevention-/p6799>.

¹²⁷ Levy, supra note 97 at 1.

¹²⁸ On the possibility of US-engineered “regime change” in Iran, whether by military or non-military means, see Abrams, Elliott, “Regime Change” in Blackwill, Robert D, ed, Iran: The Nuclear Challenge (New York: Council on Foreign Relations, 2012) 43.Google Scholar

¹²⁹ On the feasibility of various military actions (by Israel) aimed at disrupting Iran’s nuclear program, see Raas, Whitney and Long, Austin, “Osirak Redux? Assessing Israeli Capabilities to Destroy Iranian Nuclear Facilities” (2007) 31 Int’l Security 7.CrossRefGoogle Scholar

¹³⁰ Kaufman, supra note 91 at 3.

¹³¹ Bowett, Derek William, Self-Defence in International Law (Manchester: Manchester University Press, 1958) at 184–85.Google Scholar

¹³² Ibid at 185–86.

¹³³ Ibid at 182–84, 187–93.

¹³⁴ See, for example, the argument to this effect by the then Lord Chancellor, Viscount Kilmuir, speaking in the House of Lords at the time of the Suez crisis in 1956. House of Lords, UK, Parliamentary Debates, vol 199, col 1243–1365 at 1351–52 (1 November 1956), online: <http://hansard.millbanksystems.com/lords/1956/nov/01/egypt>.

¹³⁵ Brownlie, , “The Use of Force in Self-Defence,” supra note 112 at 239–41Google Scholar; Brownlie, , International Law, supra note 112 at 269–75.Google Scholar

¹³⁶ That is, use of force in individual or collective self-defence under the UN Charter, supra note 67, art 51, or as authorized by the Security Council acting under its Chapter VII powers.

¹³⁷ Dinstein, supra note 95 at 185.

¹³⁸ Bowett, supra note 131 at 184.

¹³⁹ Schachter, Oscar, “The Right of States to Use Armed Force” (1983–84) 82 Mich L Rev 1620 at 1633–34.Google Scholar

¹⁴⁰ Nicaragua, supra note 115 at paras 187–201, esp at para 194; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), [2005] ICJ Rep 168 at para 143 [DRC v Uganda]. See also Guruli, supra note 96 at 106.

¹⁴¹ Nicaragua, supra note 115 at para 195. See also DRC v Uganda, supra note 140 at paras 142–47; Oil Platforms (Islamic Republic of Iran v United States of America), [2003] ICJ Rep 161 at para 51 [Iran v US].

¹⁴² Eichensehr, Kristen, “Defending Nationals Abroad: Assessing the Lawfulness of Forcible Hostage Rescues” (2008) 48 Va J Int’l L 451 at 461 Google Scholar; Lillich, Richard B, “Forcible Protection of Nationals Abroad: The Liberian ‘Incident’ of 1990” (1992) 35 German Yearbook of International Law 205 at 216–17Google Scholar; D’Angelo, supra note 112 at 498; Gray, Christine, International Law and the Use of Force, 3rd edition (Oxford: Oxford University Press, 2008) at 156–57.Google Scholar

¹⁴³ Marston, Geoffrey, “Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice Tendered to the British Government” (1988) 37 ICLQ 773 at 795–96, 800.CrossRefGoogle Scholar See also Gainsborough, JR, The Arab-Israeli Conflict, A Politico-Legal Analysis (Aldershot: Gower Publishing, 1986) 83 at 85 Google Scholar; Day, Steven F, “Legal Considerations in Noncombatant Evacuation Operations”(1992) 40 Nav L Rev 45 at 50 Google Scholar; Knisbacher, Mitchell, “The Entebbe Operation: A Legal Analysis of Israel’s Rescue Action” (1977–1978) 12 J Int’l Econ L 57 at 64–65 Google Scholar; Eichensehr, supra note 142 at 465.

¹⁴⁴ Raymond and Kegley, supra note 96 at 101–2; Roberts, supra note 45 at 513–14.

¹⁴⁵ See Corfu Channel, supra note 115 at 34–35, rejecting the notion that “self-help” justified British mine-sweeping operations in Albanian waters.

¹⁴⁶ Beyerlin, supra note 114 at 219–21, 240.

¹⁴⁷ See text accompanying notes 137–40 above.

¹⁴⁸ Brownlie, , “The Use of Force in Self-Defence,” supra note 112 at 239–41,Google Scholar pointing out that the right of self-defence had, between 1920 and 1945, become “vague” and that it therefore seemed highly unlikely that the UN Charter’s framers would have attempted to preserve such an indeterminate customary right. See also Brownlie, , International Law, supra note 112 at 269–75Google Scholar; Beyerlin, supra note 114 at 221–23, 230–31; Krift, supra note 112 at 52.

¹⁴⁹ Reisman, W Michael and Armstrong, Andrea, “The Past and Future of the Claim of Preemptive Self-Defense” (2006) 100 AJIL 525 at 532–33Google Scholar; Wilmshurst, Elizabeth, “The Chatham House Principles of International law on the Use of Force in Self-Defence” (2006) 55 ICLQ 963 at 964 CrossRefGoogle Scholar; D’Amato, , “Israel’s Air Strike,” supra note 108 at 587–88.Google Scholar

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¹⁵¹ See Graham, supra note 45 at 3–4, quoting the Deputy US negotiator at the San Francisco conference in 1945, H Stassen, as saying that the language of Article 51 was “intentional and sound. We did not want exercised the right of self-defense before an armed attack had occurred.”

¹⁵² Kammerhofer, Jörg, “The Armed Activities Case and Non-State Actors in Self-Defence Law” (2007) 20 Leiden J Int’l L 89 at 99.CrossRefGoogle Scholar

¹⁵³ It is worth noting, however, that there is no great difference in the practical application of the law between those who claim a right of anticipatory self-de-fence in the case of a truly imminent attack and the view supported here. As some have argued, if an aggressor state takes “irrevocable” steps towards launching an attack, that attack must be seen as “occurring.” “Interceptive” self-defence against an attack that has obviously already begun is lawful under Article 51 of the Charter. See, for example, Dinstein, supra note 95 at 185, 187–92; Gazzini, Tarcisio, The Changing Rules on the Use of Force in International Law (Manchester, UK: Manchester University Press, 2005) at 152–53.Google Scholar

¹⁵⁴ Dinstein, supra note 95 at 186–87; Malone, supra note 72 at 826; Graham, supra note 45 at 17; Sapiro, supra note 98 at 606.

¹⁵⁵ Cassese, Antonio, “Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law” (2001) 12 EJIL 993 at 1000 CrossRefGoogle Scholar; Müllerson, Rein, “Jus ad Bellum: Plus Ça Change (Le Monde) Plus C’est la Même Chose (Le Droit)?” (2002) 7 J Conflict & Sec L 149 at 169.CrossRefGoogle Scholar

¹⁵⁶ Guruli, supra note 96 at 119; Gray, supra note 142 at 130; Pogany, supra note 96 at 73. However, see Secretary-General, , Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All,Google Scholar UNGAOR, 59th Sess, UN Doc A/59/2005 (21 March 2005) at para 124.

¹⁵⁷ Reisman and Armstrong, supra note 149 at 527; Gray, supra note 142 at 131–32. However, see Rothwell, supra note 96 at 343–45, arguing that the US raid on Libya in 1986 was a case of anticipatory self-defence, although acknowledging that this characterization is “clouded due to the ongoing tensions” between the two countries. In fact, Libyan involvement in the terrorist attack on a Berlin discotheque is generally seen as the main reason for the subsequent US attack, so that the raid cannot serve as a classic example of anticipatory self-defence.

¹⁵⁸ See, for example, Reisman, W Michael, “The Raid on Baghdad: Some Reflections on Its Lawfulness and Implications” (1994) 5 EJIL 120 at 126.CrossRefGoogle Scholar

¹⁵⁹ Gray, supra note 142 at 131, mentioning a fourth case, the Iraqi attack on Iran in 1980, which Iraq originally characterized as “preventive” self-defence. However, as Gray points out, Iraq quickly changed its position and justified its actions on the basis of a prior attack by Iran.

¹⁶⁰ Rademaker, Stephen G, “Use of Force after 9/11” (2004–05) 5 Chicago J Int’l L 461 at 465 Google Scholar; Wedgwood, supra note 123 at 584; Newcomb, supra note 123 at 623–25; Mallison and Mallison, supra note 96 at 423–24.

¹⁶¹ Raymond and Kegley, supra note 96 at 102; Gill, supra note 96 at 134–39; Pierson, Charles, “Preemptive Self-Defense in an Age of Weapons of Mass Destruction: Operation Iraqi Freedom” (2004–05) 33 Denv J Int’l L & Pol’y 150 at 166–67Google Scholar; Newcomb, supra note 123 at 621–22.

¹⁶² D’Amato, , “Israel’s Air Strike,” supra note 108 at 588, n 19Google Scholar; Quigley, John, “Israel’s Destruction of Iraq’s Nuclear Reactor: A Reply” (1995) 9 Temp Int’l & Comp LJ 441 at 441 Google Scholar; Gray, supra note 142 at 131; Pierson, supra note 161 at 163; Gazzini, supra note 153 at 149–50.

¹⁶³ Sapiro, supra note 98 at 601; Gray, supra note 142 at 130–31; Gazzini, supra note 153 at 150.

¹⁶⁴ See Resolution of the Council of the Organization of American States (22 October 1962), (1962) 47 Dep’t St Bull 722, invoking Article 6 of the Inter-American Treaty of Reciprocal Assistance, 21 UNTS 77 (in force 3 December 1948), which does not require an “armed attack.” See further Wedgwood, supra note 123 at 584; Sapiro, supra note 98 at 601; Gray, supra note 142 at 131; Nydell, supra note 123 at 484–85, (pointing out that the US government explicitly rejected the idea ofjustifying its actions on the basis of self-defence because no “armed attack” had occurred and it did not want to set a precedent); Pierson, supra note 161 at 164; Roberts, supra note 45 at 528; Gazzini, supra note 153 at 149–50.

¹⁶⁵ Chase, Abram, “The Legal Case for U.S. Action on Cuba” (1962) 47 Dep’t St Bull 763 at 764.Google Scholar

¹⁶⁶ Yearbook of the United Nations 1967 (New York: United Nations Office of Public Information, 1967) at 176; Lexicon, Knesset, Six Days War, online: The Knesset <http://www.knesset.gov.il/lexicon/eng/six_days_eng.htm> >Google Scholar; Gray, supra note 142 at 130–31; Pogany, supra note 96 at 73; Sapiro, supra note 98 at 601; Gazzini, supra note 153 at 150. See also Paul, supra note 95 at 466 (describing the Israeli position as “arguable” given that Egypt had occupied the buffer zone between Egypt and Israel prior to the Israeli attack and had blockaded Israeli shipping). But see Quigley, supra note 162 at 442–43 (calling Israel’s accusations against Egypt “false”).

¹⁶⁷ Arab and Soviet bloc states condemned the Israeli attack as “aggression.” See Paul, supra note 95 at 466. But see Gill, supra note 96 at 136 (claiming an “overwhelming majority of states” supported the Israeli actions — a rather surprising assessment given that a Yugoslav draft resolution calling for Israel’s immediate and unconditional withdrawal garnered a deeply divided vote of 53: 46: 20 in the UN General Assembly). See also Gazzini, supra note 153 at 150 (describing international reaction as “consistently negative”).

¹⁶⁸ D’Amato, , “Israel’s Air Strike,” supra note 108 at 587–88Google Scholar; Sapiro, supra note 98 at 601; Gray, supra note 142 at 133; Pogany, supra note 96 at 73; Silverberg, supra note 123 at 60.

¹⁶⁹ SC Resolution 487, supra note 82.

¹⁷⁰ Paul, supra note 95 at 467–68; Gill, supra note 96 at 140–41; Pogany, supra note 96 at 73–74 (interpreting the statements of the United States, the UK, Sierra Leone, and Niger as — at least — implicitly accepting the legality of anticipatory self-defence); Henderson, supra note 41 at n 41. See also Pierson, supra note 161 at 167–68 (while acknowledging there was no consensus within the UN Security Council on the legality of anticipatory self-defence, somewhat paradoxically concluding that this demonstrated worldwide support).

¹⁷¹ Quigley, supra note 162 at 441; Gray, supra note 142 at 133; Pogany, supra note 96 at 74 (naming Uganda, Algeria, Brazil, Spain, Ireland, Syria, Guyana, Mexico, and the Soviet Union as explicitly rejecting the notion of anticipatory self-defence during the UN Security Council debate).

¹⁷² See Gray, supra note 142 at 130 (stating that the “vast majority of states” rejects the concept of anticipatory self-defence).

¹⁷³ Guruli, supra note 96 at 120-22; Paul, supra note 95 at 469 (describing these views); Pierson, supra note 161 at 177.

¹⁷⁴ Gray, supra note 142 at 134; Franck, Thomas M, “What Happens Now? The United Nations after Iraq” (2003) 97 AJIL 607 at 620.CrossRefGoogle Scholar See, for example, Guruli, supra note 96 at 120–22 (claiming that the invasion of Iraq in 2003 led to new norms “emerging,” despite acknowledging that the invasion was extremely controversial).

¹⁷⁵ Yearbook of the United Nations 1981 (New York: United Nations Office of Public Information, 1981) at 277.

¹⁷⁶ See Armed Israeli Aggression against the Iraqi Nuclear Installations and Its Grave Consequences for the Established International System Concerning the Peaceful Uses of Nuclear Energy, the Non-Proliferation of Nuclear Weapons and International Peace and Security, GA Res 36/27, UNGAOR, 36th Sess, UN Doc A/RES/36/27, (1981), condemning the Israeli actions (only the United States and Israel opposed the resolution). See also Paul, supra note 95 at 468; Beres, Louis René and Tsidddon-Chatto, Yoash, “Reconsidering Israel’s Destruction of Iraq’s Osiraq Nuclear Reactor” (1995) 9 Temp Int’l & Comp LJ 437 at 437 Google Scholar (who, however, go on to demand a re-evaluation); Beres, supra note 52 at 203; Gill, supra note 96 at 140; Silverberg, supra note 123 at 60; Mallison and Mallison, supra note 96 at 441; Roberts, supra note 45 at 530; Byers, Michael, War Law: International Law and Armed Conflict (London: Atlantic Books, 2005) at 73.Google Scholar

¹⁷⁷ SC Resolution 487, supra note 82.

¹⁷⁸ Yearbook of the United Nations 1981, supra note 175 at 276.

¹⁷⁹ Paul, supra note 95 at 467–68; Graham, supra note 45 at 11 (quoting former British Prime Minister Margaret Thatcher as saying: “Armed attack in such circumstances cannot be justified. It represents a grave breach of international law.”)

¹⁸⁰ Yearbook of the United Nations 1981, supra note 175 at 277.

¹⁸¹ Rademaker, supra note 160 at 462–63.

¹⁸² Malone, supra note 72 at 816; Rademaker, supra note 160 at 462–65; Paul, supra note 95 at 474; Graham, supra note 45 at 13; Franck, supra note 174 at 611; Gray, supra note 142 at 182; Fidler, David P, “International Law and Weapons of Mass Destruction: End of the Arms Control Approach?” (2004) 14 Duke J Comp & Int’l L 39 at 73 Google Scholar; Rothwell, supra note 96 at 349; Henderson, supra note 41 at 14; Byers, supra note 176 at 79.

¹⁸³ Letter dated 20 March 2003 from the Permanent Representative ofthe United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, UN Doc S/2003/350 (2003); Simpson, Gerry, “The War in Iraq and International Law” (2005) 6 Melbourne J Int’l L 167 at 173–75Google Scholar; Fidler, supra note 182 at 73; Stromseth, supra note 123 at 629, n 4. For accounts questioning such a justification, see Paul, supra note 95 at 459–61; Franck, supra note 174 at 611–14; Rothwell, supra note 96 at 349; Henderson, supra note 41 at 10; Gazzini, supra note 153 at 221; Byers, supra note 176 at 79.

¹⁸⁴ Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc S/2003/351 (2003) (relying almost exclusively on SC Resolutions 1441 and 678 as providing legal justification for the attack on Iraq, although the necessity to “defend” the United States and the “international community” is also mentioned in one sentence). See also Rademaker, supra note 160 at 464–65; Stromseth, supra note 123 at 629, n 4 (pointing out that the United States did not base its justification on “pre-emptive” self-defence before the Security Council); Gill, supra note 96 at 142; Gazzini, supra note 153 at 221, 232.

¹⁸⁵ The then UN secretary-general, Kofi Annan, declared in 2004 that “[f]rom our point of view and the U.N. Charter point of view, it was illegal” (quoted in Crook, John R, “Contemporary Practice of the United States Relating to International Law” (2005) 99 AJIL 269 at 269).Google Scholar See also Dutch Military Mission to Iraq, Conclusions of the Committee of Inquiry on Iraq (21 April 2010) online <http://vorige. nrc.nl/multimedia/archive/00267/rapport_commissie_i_267285a.pdf> at paras 18, 20 of the English summary at 530–31. In a case before the German Federal Administrative Court (the Bundesverwaltungsgericht) in 2005, the court declared that there were grave doubts as to the legality, under international law, of the attack on Iraq by the United States and the UK, as both governments could not rely on authorization by the UN Security Council nor on Article 51. Bundesverwaltungsgericht, Urteil/Judgment (21 June 2005), BVerwG 2WD 12.04, online: <http://www.bverwg.de/entscheidungen/pdf/210605U2WD12.04.0.pdf>. See further “War Would Be Illegal” (letter from 16 leading legal academics in Britain), The Guardian (7 March 2003) 29, online: The Guardian <http://www.theguardian.com/politics/2003/mar/07/highereducation.iraq>); Bingham, Tom, The Rule of Law (London: Allen Lane, 2010) at 122–24Google Scholar; Sands, Phillipe, Lawless World (London: Penguin Books, 2006) at 174–204, 258–75Google Scholar; Franck, supra note 105 at 95, 97, 103; Neuhold, Hanspeter, “Law and Force in International Relations: European and American Positions” (2004) 64 ZaöRV 263 at 276–78Google Scholar; Simpson, supra note 183 at 172–78; Gray, supra note 142 at 135; Gazzini, supra note 153 at 221.

¹⁸⁶ Wedgwood, supra note 123 at 577 (quoting from a “White House Information Sheet”). See also Gray, supra note 142 at 183 (referring to “about forty-five states [that] were willing to offer military or political support to the USA,” of which none justified its support on the basis of preventive self-defence).

¹⁸⁷ Paul, supra note 95 at 472–73; Gray, supra note 142 at 181–83.

¹⁸⁸ UN Charter, supra note 67, art 27(3). This attempt was based on UK Prime Minister Tony Blair’s rather novel and questionable theory of the “unreasonable veto,” whereby a veto cast in contravention of UN principles — presumably as understood by the UK — would be deemed invalid.

¹⁸⁹ Reisman and Armstrong, supra note 149 at 537; Henderson, supra note 41 at 13.

¹⁹⁰ See the evidence provided to the Chilcot Inquiry by Sir Michael Wood, legal adviser to the UK Foreign and Commonwealth Office from 1999–2006: Iraq Inquiry, Statement by Sir Michael Wood, 26 January 2010, at para 15, online: <http://www.iraqinquiry.org.uk/media/43477/wood-statement.pdf>. The deputy legal adviser to the UK Foreign and Commonwealth Office, Elizabeth Wilmshurst, resigned from her post because she believed the Iraq War to be a “crime of aggression,” as she explained in her evidence to the Chilcot Inquiry. See Iraq Inquiry, transcript of Elizabeth Wilmshurst (26 January 2010), online: Iraq Inquiry <http://www.iraqinquiry.org.uk/media/44211/20100126pm-wilmshurst-final.pdf>. In his draft advice of 14 January 2003, the UK attorney general (who, of course, later changed his mind), concluded “that resolution 1441 does not revive the authorisation to use of force [sic] contained in resolution 678 in the absence of a further decision by the Security Council.” Iraq Inquiry: Attorney General’s Draft Advice to Prime Minister at 5, online: <http://www.iraqinquiry.org.uk/media/46493/Goldsmith-draft-advice-14January2003.pdf>. See further Pidd, Helen and Mulholland, Hélène, “Lord Goldsmith Changed Legal View of Iraq War in Two Months, Says Adviser,” The Guardian (26 January 2010), online: The Guardian <http://www.guardian.co.uk/uk/2010/jan/26/iraq-war-illegal-chilcot-inquiry>.Google Scholar Similarly, in the United States, Richard Perle, chairman of the Defense Policy Board Advisory Committee in the Bush administration, declared, during a visit to the UK, that “in this case international law stood in the way of doing the right thing” as “international law … would have required us to leave Saddam Hussein alone.” See Burkeman, Oliver and Borger, Julian, “War Critics Astonished as US Hawk Admits Invasion Was Illegal,” The Guardian (20 November 2003) 4, online: The Guardian <http://www.theguardian.com/uk/2003/nov/20/usa.iraq1>.Google Scholar

¹⁹¹ Sanger, David E and Mazzetti, Mark, “Israel Struck Syrian Nuclear Project, Analysts Say,” New York Times (14 October 2007) online: New York Times <http://www.nytimes.com/2007/10/14/washington/14weapons.html?pagewanted=all&_r=0> Google Scholar; see also Follath, Erich and Stark, Holger, “The Story of ’Operation Orchard’: How Israel Destroyed Syria’s Al Kibar Nuclear Reactor,” Der Spiegel (2 November 2009) online: Spiegel Online International <http://www.spiegel.de/international/world/the-story-of-operation-orchard-how-israel-destroyed-syria-s-al-kibar-nuclear-reactor-a-658663.html>.Google Scholar

¹⁹² Bush, George W, Decision Points (London: Virgin Books, 2010) at 420–22.Google Scholar

¹⁹³ Oren, Amir, “IDF Lifts Censorship of Sept. 6 IAF Strike on Target inside Syria,” Haaretz (2 October 2007) online: Haaretz <http://www.haaretz.com/news/idf-lifts-censorship-of-sept-6-iaf-strike-on-target-inside-syria-1.230392>.Google Scholar

¹⁹⁴ “Israel Condemned for Intrusion into Syria’s Territorial Air” (11 September 2007), online: KCNA <http://www.kcna.co.jp/item/2007/200709/news09/12.htm>.

¹⁹⁵ “IAEA Chief Criticizes Israel over Syria Raid,” Reuters (28 October 2007), online: Reuters <http://www.reuters.com/article/2007/10/28/idUSN28442767>.

¹⁹⁶ See Reisman and Armstrong, supra note 149 at 540–46 (claiming implicit acceptance of “pre-emptive self-defence” in the national security strategies and/ or statements made by officials ofJapan, the UK, China (only regarding Taiwan), France, India, Israel, North Korea, Russia, Taiwan (only regarding China), and Iran). However, most of the material quoted deals only with terrorist threats, casting doubt on the degree of support for “pre-emptive” self-defence directed against other states (a point conceded by the authors at 547). See also Raymond and Kegley, supra note 96 at 107 (presenting a similar list, albeit limited to statements made by individual politicians).

¹⁹⁷ Guruli, supra note 96 at 119; Reisman and Armstrong, supra note 149 at 538–40 (also quoting former Australian Prime Minister John Howard as saying, in 2002, that “preemptive action is a self-evidently defensible and valid principle”). Gray, supra note 142 at 177; Henderson, supra note 41 at 10.

¹⁹⁸ Henderson, Christian M, “The 2006 National Security Strategy of the United States: The Pre-emptive Use of Force and the Persistent Advocate” (2007) 15 Tulsa J Comp & IL 1 at 3, 16Google Scholar; Gray, supra note 142 at 177–78 (pointing out that the United States failed to gain the explicit approval of the North Atlantic Treaty Organization and of the UK regarding its doctrine); Shah, supra note 150 at 115.

¹⁹⁹ Brownstein, Ronald, “America’s Sharp Turn Inward,” National Journal (5 September 2013), online: National Journal <http://www.nationaljournal.com/political-connections/america-s-sharp-turn-inward-20130905> Google Scholar; Mludzinski, Tom, “The British Aren’t Coming: Syria and the Legacy of Iraq,” Daily Telegraph (5 September 2013), online: The Telegraph <http://www.telegraph.co.uk/news/worldnews/middleeast/syria/10289553/The-British-arent-coming-Syria-and-the-legacy-of-Iraq.html> Google Scholar; Young, Marc, “Syria Crisis Exposes Rifts in U.S.-German Ties,” Yahoo News (12 September 2013), online: Yahoo News <http://news.yahoo.com/syria-crisis-exposes-rifts-in-us-german-ties--222905636.html>.Google Scholar

²⁰⁰ Paul, supra note 95 at 469; Greenblum, supra note 21 at 56–57, 103.

²⁰¹ Roberts, supra note 45 at 484; Beres, supra note 52 at 201–03; Silverberg, supra note 123 at 86–87; Pierson, supra note 161 at 174–75; Newcomb, supra note 123 at 631–33; Greenblum, supra note 21 at 57.

²⁰² Roberts, supra note 45 at 483, 517–18, 518–27.

²⁰³ Pierson, supra note 161 at 171; Beres and Tsidddon-Chatto, supra note 176 at 439; Beres, supra note 52 at 205–06; Roberts, supra note 45 at 497.

²⁰⁴ Newcomb, note supra 123 at 618; Beres and Tsiddon-Chatto, supra note 176 at 438 (“international law is not a suicide pact!”); Beres, supra note 52 at 188 (claiming that pre-emption is necessary to avoid “genocide”); Greenblum, supra note 21 at 111–12.

²⁰⁵ It should be noted that Ahmadinejad’s egregious pronouncements are by no means indicative of the thinking of all members of Iran’s political class. See Parsi, supra note 15 at 82; Parsi, Trita, Treacherous Alliance: The Secret Dealings of Israel, Iran, and the US (New Haven, CT: Yale University Press, 2007) at 9.Google Scholar

²⁰⁶ It has been suggested that the breakdown of the rule of law in international affairs may in fact be the intention of some of the concept’s proponents. See, for example, Gill, supra note 96 at 149; Quigley, supra note 162 at 444; Graham, supra note 45 at 11–12; Stromseth, supra note 123 at 636; Sapiro, supra note 98 at 603; Sloss, supra note 96 at 54; Reisman and Armstrong, supra note 149 at 548–50; Raymond and Kegley, supra note 96 at 106 (describing US President Eisenhower’s reaction to the suggestion of pre-empting the emerging Chinese nuclear capability as follows: “He wouldn’t even listen to anyone seriously that came in and talked about such a thing”); Mallison and Mallison, supra note 96 at 429, 444–46; Shah, supra note 150 at 112 (also pointing out the similarities of the theory to German arguments preceding the First World War); Henderson, supra note 41 at 22; Gazzini, supra note 153 at 221–22; Byers, supra note 176 at 76.

²⁰⁷ Paul, supra note 95 at 458, correctly describes such an argument as “not a doctrine of law” but “simply a unilateral assertion of power.”

²⁰⁸ Ibid at 458; Sapiro, supra note 98 at 599, 605; Gray, supra note 142 at 186 (adding the example of China/Taiwan); Shah, supra note 150 at 103–4; Henderson, supra note 198 at 28; Henderson, supra note 41 at 5; Byers, supra note 176 at 76.

²⁰⁹ A similar point is made by Nagan and Hammer, supra note 40 at 429 (observing that the United States may no longer be able to “pick and choose which rogue state to coddle and which to destroy” if the Bush doctrine were to be accepted universally).

²¹⁰ Report by the Secretary-General’s High-level Panel on Threats, Challenges and Change: A More Secure World: Our Shared Responsibility, UNGAOR, 59th Sess, UN Doc A/59/565 (December 2004) at para 191, online: <http://www.unrol.org/files/gaA.59.565_En.pdf>.

²¹¹ Comments of the Non-Aligned Movement on the Observations and Recommendations Contained in the Report of the High-level Panel on Threats, Challenges and Change, Non-Aligned Movement Position Paper (28 February 2005), online: <http://www.un.int/malaysia/NAM/Positionpaper280205.doc> at 43.

²¹² Dunn, supra note 3 at 30; Perkovich, supra note 33 at 57.

²¹³ Graham, supra note 45 at 10; Lodgaard, supra note 43 at 121; Raymond and Kegley, supra note 96 at 103; Newcomb, supra note 123 at 631 (who nevertheless supports “pre-emptive” self-defence); Henderson, supra note 41 at 19; Byers, supra note 176 at 76.

²¹⁴ Lodgaard, supra note 43 at 117; Raymond and Kegley, supra note 96 at 103; Mallison and Mallison, supra note 96 at 443.

²¹⁵ Dunn, supra note 3 at 29.

²¹⁶ Ibid; Oborne and Morrison, supra note 3 at 22.

²¹⁷ Perkovich, supra note 33 at 48.

²¹⁸ Waltz, Kenneth N, “Why Iran Should Get the Bomb” (July/August 2012) 91:4 Foreign Affairs 2, online: Council on Foreign Relations <http://sistemas.mre.gov.br/kitweb/datafiles/IRBr/pt-br/file/CAD/LXIICAD/Pol%ADtica/Why%20Iran%20Should%20Get%20the%20Bomb.pdf>.Google Scholar

²¹⁹ Although it should be noted that Khamenei, in 2005, issued a fatwa outlawing the possession of nuclear weapons. See Oborne and Morrison, supra note 3 at 76–79.

²²⁰ See, for example, Reisman and Armstrong, supra note 149 at 545 (quoting former Iranian Defence Secretary Shamkhani as claiming a right of “pre-emptive” self-defence against US troops in the Middle East in 2004); Nagan and Hammer, supra note 40 at 408, n 129 (quoting Henry Kissinger as remarking: “It is not in the American national interest to establish pre-emption as a universal principle available to every nation.”)