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25 Harv. J.L. & Pub. Pol'y 539 (2001-2002)
The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter

handle is hein.journals/hjlpp25 and id is 567 raw text is: THE FOG OF LAW: SELF-DEFENSE, INHERENCE, AND INCOHERENCE IN ARTICLE 51 OF THE UNITED NATIONS CHARTER MIcHAEL J. GLENNON* I. INTRODUCrION On a hot afternoon in July 2001, one of those rare, revealing scenes played out in Washington that seemed to convey, in one memorable moment, more than volumes of explanatory commentary and analysis. Testifying before the Senate Foreign Relations Committee was William J. Perry, Secretary of Defense during the Clinton Administration. His topic was the ABM Treaty. Toward the end of his testimony, almost as an aside, Perry presented a brief proposal. As a backstop to a missile defense system, he suggested the United States should establish a policy that we will attack the launch sites of any nation that threatens to attack the U.S. with nuclear or biological weapons.' While Perry did not elaborate on the idea, its logic is compelling. An adversary considering the development of such weapons will have less incentive if it is aware that its effort ultimately will come to naught. But implementing the policy would present a slight problem, noted neither by Perry nor by any Senator: it would plainly violate Article 51 of the United Nations Charter,2 which permits defensive use of force only in * Fellow, Woodrow Wilson International Center for Scholars (2001-2002); Professor of Law, University of California, Davis, School of Law. I am grateful to Hanno Kaiser, Melvyn Leffler, and Greg Stanton for comments and to Eli Glasser for research assistance. 1. The Administration's Missile Defense Program and the ABM Treaty: Hearing Before the Senate Comm. on Foreign Relation, 107th Cong. 88 (2001) (statement of U.S. Secretary of Defense William J. Perry). 2. Article 51 provides as follows: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a

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