Michael Chertoff, the current U.S. Secretary of Homeland Security, believes that international law too often gets in the way of national security.  In The Responsibility to Contain, Chertoff outlines why he believes this to be so:  many want to subordinate U.S. law and policy to poorly defined international “norms” that are not moored firmly in actual state practice; those very norms are often developed by jurists and scholars, rather than by democratically elected officials; and worse still, those international norms – referred to collectively as customary international law (CIL) – are often thought to prevent a state from taking bold, necessary measures to protect itself from terrorism.  In a nutshell, current international law is inconsistent with a healthy respect for state sovereignty and democracy, and should therefore be reconceived.

To his credit, Chertoff’s proposed solution is not to abandon international law.  Rather, he insists that the international legal order must promote and embody a new core principle, what we will call conditional sovereignty.  Conditional sovereignty involves two related ideas:  (1) individual states must recognize that each and every nation has the right to regulate its own internal political and security affairs; and (2) where a nation fails to regulate its own internal political and security affairs, other nations have a right to intervene to prevent any resulting security threats from “spreading and interfering with other states’ sovereign right to exclusive authority over their territories.” This sounds a lot like the Bush doctrine, the notion that the U.S. has a right, indeed a duty to its own citizens, to engage in preventive warfare against countries that harbor terrorists or fail to do enough to thwart terrorist activities.

The fact that Chertoff’s proposal sounds like the Bush Doctrine is not necessarily a reason to automatically reject it.  But conditional sovereignty faces a glaring problem:  Who gets to decide whether a state has been so remiss in addressing its own internal affairs that its sovereignty can be breached by another state that feels threatened, and if a state acts prematurely in attacking a state that has, in fact, not been remiss in addressing its own internal affairs, what forms of redress are available to the victim state?

Chertoff’s piece also fails to explicitly acknowledge that conditional sovereignty would essentially introduce a new category of intervention into international relations, one that has not been recognized by the primary treaty regulating the use of international force – the UN Charter.  Currently, the Charter seeks to prevent the unnecessary or overzealous use of force through limiting the use of force to situations of self-defense or to situations sanctioned by the Security Council, in the form of a Chapter VII resolution.  Of course, the Charter has its own demons and inadequacies to deal with, and Chertoff rightly highlights its inability to deal with stateless and transnational organizations as a significant obstacle in the war on terror.  However, is the best solution really to introduce a fundamentally new type of legitimate intervention, one that will undoubtedly be subject to difficult line-drawing exercises and to trading accusations of political agendas?

Chertoff, of course, is deeply and unabashedly suspicious of international law.  He thinks that it’s created by idealists and Ivy-tower thumb twiddlers who don’t understand a darn thing about the tricky challenges that Western industrialized countries face in effectively responding to terrorism.  Maybe Chertoff is right about some of those idealists and thumb twiddlers.  But what Chertoff fails to understand is that embracing a doctrine of conditional sovereignty that allows states to decide for themselves – without consulting the international community – would be to encourage precisely what civilized nations should be working together to prevent, namely unjustified military carnage.

To see why this is so, consider an example that Chertoff himself uses to advocate his version of conditional sovereignty.  Under the nuisance doctrine, domestic property law allows a homeowner to take legal action against a neighbor who fails to stop activity on his or her property that substantially infringes the rights of that homeowner.  The normative principle at work here is simple:  you must pay for what spills over into your neighbor’s property.  Chertoff argues that this norm supports conditional sovereignty, after all, why shouldn’t states have to “pay” for what they allow to happen within their own borders?  The critical flaw in this argument is that a neutral third party already exists to adjudicate nuisance disputes (i.e., domestic courts), but no such body would exist under Chertoff’s scheme to determine whether the doctrine of conditional sovereignty allows a state to take invasive steps to thwart terrorist activity taking place within the borders of one of its neighbors.  Chertoff’s conditional sovereignty would be akin to a domestic properly law regime that allowed an individual to eliminate a neighbor’s alleged nuisance without going through a neutral arbitrator or court.

International law has many purposes.  One overriding purpose is to provide a strong incentive to comply with reasonable legal rules when compliance is inconvenient, costly, or politically unpopular.  This principle applies with particular force to nations who reasonably and rationally want to protect their citizens from terrorism.  And Iraq illustrates why this principle is so important.  Bush thought that preventive war would be a good way to thwart further terrorist attacks, but invading Iraq has neither confined an existing security threat to its nation of origin nor protected the entire Western world from Al Qaeda’s malevolent designs. If nothing else, Iraq shows that the United States, a nation with unparalleled military capabilities, was not necessarily the best judge of how to promote its own national security interests.  From Iraq we’ve learned – hopefully – that there is a strong, almost irresistible temptation to deal with a national security threat rashly and poorly when a state feels empowered to act unilaterally.  And so, Chertoff’s proposed version of conditional sovereignty is simply not a viable solution to terrorism because it is a doctrine that encourages nations to be belligerent when they ought to be reflective, to be careless when care is the only way to move forward.  Chertoff gives the clearest, most cogent justification for the Bush Doctrine we’ve ever seen.  But that doesn’t change the fact that he’s dead wrong about the shape international law must take if the West is to survive terrorism.