In 1837, there was a rebellion in Upper Canada and there was private support for this rebellion coming out of New York State, non-governmental assistance being provided to the rebels in Canada by a thousand-strong militia in the United States. One of the things the volunteers did was to use a steamboat called the Caroline to transport arms and supplies across the Niagara River. On December 29th 1837, they made two trips across the river and then tied up overnight at a fort on the US bank. British forces launched a night raid across the river into US territory, captured the ship, set it on fire and sent it over Niagara Falls.

And this caused considerable disquiet in Washington because here you had the world's single superpower – the United Kingdom - using military force within US territory, at a time when the United States was anything but a superpower. Diplomatic representations were made at the highest level. The diplomatic correspondence between the US Secretary of State, Daniel Webster, and the British minister Lord Ashburton eventually resulted in an agreement that set out criteria for the use of force in self-defence upon which both the British and American governments agreed – the action must not be "unreasonable or excessive", and with regard to anticipatory action, the necessity must be "instant, overwhelming, leaving no choice of means, and no moment of deliberation".

That diplomatic correspondence became widely accepted as reflective of customary international law -- until 1945 when all of a sudden you had Article 51 of the UN Charter dropped on top of this customary law. And the question then became whether and how this inherent right, set out in the Caroline correspondence, survived Article 51, and that's how we got into lively debates about what "inherent right" and "an armed attack" mean.

These lively debates are all very interesting, but they actually are not of much relevance to the Bush doctrine. Even if you argue that there is an existing right of anticipatory self-defence based on the Caroline criteria, somehow fitting within and surviving Article 51, you have to admit that what President Bush and his advisors are pushing for is something that far exceeds the Caroline criteria. The Bush doctrine is unprecedented in that it argues for a right to take pre-emptive action against potential threats, future threats. There's no suggestion that Iraq is going to attack the United States tomorrow or next week, or that any of the countries that potentially fall within the scope of military action justified by the Bush doctrine are immediate threats. It's a way of effectively closing down dangerous regimes before they become imminent threats. So I think if you understand this distinction between the anticipatory self-defence claim made by people before this year, and the Bush doctrine, then we don't need to have the legal arguments because quite clearly this new doctrine is beyond the pale. It is clearly illegal.

The United States is articulating a claim which if accepted would make new law. It doesn't fit within anyone's understanding of what the existing law is, so they're seeking to make new law, either for the international community as a whole or for themselves alone. That's the claim: even if we didn't have the right to do this before, we can do it now.

And that raises all sorts of questions as to how other countries will respond. Unlike some international lawyers, I'm prepared to admit that international law can evolve in response to state behaviour – so if other countries want to behave as if they are accepting the US claim, and the US then acts in furtherance of its claim and everyone just sits on their hands and acquiesces, then we have the evolution of international law.

In the cases envisaged by the Bush doctrine, there is time for deliberation and, most importantly, there is time to go to the United Nations Security Council. The entire structure of Article 51 in the UN Charter is based upon the pre-eminence of the Security Council – you have the right of self-defence until such time as the Security Council takes action. And therefore it's implied that if you have the time to deliberate and to go to the Council before you take pre-emptive action, then you have to go to the Council. That’s the primacy of the Council within Chapter VII of the UN Charter.

How do you think the fourteen other members of the Security Council would react if the US ambassador went to them with good evidence that Iraq possessed chemical, biological or nuclear weapons, and a delivery system capable of launching them against the United States, and the US asked for a Chapter VII resolution to deal with the threat from Saddam Hussein? They'd get a unanimous resolution in support of that. No question. They would have got a unanimous resolution on September 12th authorising military action against Afghanistan. These threats are threats to every state. We're not talking about a Cold War tension between two veto-holding powers. We're talking about the United States claiming to be addressing a threat that, if it exists, is a threat to everyone, and the Security Council in that situation, faced with good evidence, will provide the resolution.

In the event, the unforeseen event where they don't, well then perhaps we have a question. But the point is, you have to go to the Security Council because this is a situation where it's clear that the Security Council has a significant interest, where the expectation should be that they will act, and where the UN structure, the legal requirements, say that you have to go to the Council. So in a sense this discussion completely pre-empts a structure that has in no way been proven to not work – and so the whole question of pre-emptive self-defence should be a non-starter. It's simply not relevant until the Council has been proven to be blocked in respect of this kind of danger.

With regard to the Israeli strike against the Osirak nuclear reactor, which would not have been approved by the Security Council – was the Iraqi programme a serious and imminent threat to Israel? No. Had Saddam Hussein progressed to the point where he had nuclear weapons and was capable of delivering them against Israel, how would the Security Council have reacted? We don't know. Part of the problem is that all of those who raise these arguments in favour of pre-emptive self-defence are incapable of demonstrating that the Council machinery would not work.

It’s sometimes said that with regard to nuclear weapons and regimes like Saddam Hussein, by the time that they are an actual threat it may already be too late to prevent their use. Well, you can always come up with the scary hypothetical for every situation, but if we based our understanding of what the international system should look like on the basis of the scariest hypothetical, we wouldn't have an international system. It's geared towards working in the 99.99% of cases that arise or are likely to arise. There will always be the 0.01% scary hypothetical that might come into fruition and, in that case, maybe the international legal system isn't the appropriate framework to look at this – although I haven't seen that kind of situation ever arise.

The one plausible example is the Kosovo intervention. You know, if there was convincing evidence that genocide was about to be committed, and NATO had gone to the Council and been rejected - which didn't happen - then you're in a situation where perhaps illegal action on the part of NATO was morally justified, politically justified. It may be then that the legal constraint shouldn't be determinative, but my point is that these situations hardly ever, if ever, arise. And so, to tear down a system that was constructed in 1945 to provide a damper on great power ambitions, to me just seems dangerous and wrong.

Moreover, people need to realise that the United States created Chapter VII. This is a US-inspired vision of world order and the people who created it weren't naive global governance types. These were pragmatic statesmen who had lived through two world wars, and the fact that there is a veto for five of the most powerful states is a reflection of political pragmatism. The reason that there's a limited exception for self-defence is political pragmatism. They constructed a system that was based upon a realisation of just how serious the consequences of slipping down a slippery slope can be. They were motivated by the Second World War, by Hiroshima and Nagasaki, by the trenches of the First World War – threats and horrors as big if not bigger than anything we're facing today. The Charter constraints on the use of force was the solution they came up with and although you can't prove it empirically, there hasn't been a major inter-state war for fifty-seven years -- a remarkable achievement given the proliferation of arms in the world and the kind of instabilities that have developed.

The Soviet Union and the United States never went head to head. Now that's partly because of deterrence but my gut instinct says it's partly because of Chapter VII and the UN framework and the fact that there is a mechanism whereby the international community could act except in those instances where a P-5 member decided that they couldn't act.

The Bush doctrine would take one of the major tools out of the toolbox of American and other countries' diplomacy. When there was the near-nuclear confrontation between India and Pakistan, it was very difficult for Colin Powell to tell the Indians or Pakistanis that they didn’t have a right of self-defence against terrorist attacks. The scenario in Kashmir for India was closely analogous to the situation that the United States found itself in on September 11th and September 12th - not perfectly analogous but close enough that it weakened Powell's ability to advance credible arguments against intervention in Pakistan. And this happens again and again and again.

International law is for the most part reciprocal – if you have any respect for international law, you've got to think of just how this might change the rights and obligations of others. And we might well trust the United States, but do we trust India or Pakistan or Rwanda or China? Do we trust Iraq -- because they would have a right of pre-emptive self-defence too? I don't think that calculation is taking place in the White House, as if the Bush administration thinks that the US has a special position in international law, which seems to be a sort of underlying assumption that they have when they articulate these claims. Sort of like the argument with regard to the International Criminal Court, that the US has special responsibilities and therefore it deserves a special exemption.

That would be almost unprecedented in international law, to have a separate regime of rights for one country alone, not completely unprecedented but highly unusual. And it would change the dynamic of international governance in a very profound way. It would very much be a shift back to the 19th century, or 17th century. The United Kingdom at the height of its powers or France or Spain at the height of their powers might have well purported to have exceptional rights and that's perhaps what the United States is seeking to do today… it's behaving in a traditional hegemonic manner with respect to international law, although it's doing so in an international system that is very different from that of previous centuries, since you've got this proliferation of NGOs, for instance, and a much denser system of rules both customary and treaty.

So it's not obvious that the other actors in international law should accept the US claim, nor indeed that the traditionally active states could accept that claim and thus see the law change –- given the proliferation of other actors. But it's possible that that's what the US is seeking – so we've got a head-on confrontation between this quasi-imperialist view, the sort of traditional view you would expect of a superpower, and the modern view of an advanced legal system in an international community. That comes out with respect to the International Criminal Court, with respect to self-defence in the Security Council, with respect to international environmental policy in Kyoto. Across the board we see this tension, and it's becoming more visible, and as a result of this increased visibility, other countries are having to decide, although they don't want to have to decide, how to respond to these imperialist-type claims.

In a sense I'm not faulting the Bush administration, because they’re acting just like you'd expect a hegemon to act.I It's just that they're doing so in a much more blatant fashion than anyone had been accustomed to in the last hundred years.

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