International terrorism carried out by nonstate actors and the spread of weapons of mass destruction (WMD) to dangerous states have emerged in recent years as the most significant security threats to the international order. Although the nature of the threats has changed dramatically, the legal regime governing the international use of force has not undergone a comparable transformation. Many commentators and strategists see a growing disconnect between states' security needs and the international law security architecture. Contending that the international law rules and international institutions established by the U.N. Charter are ill-suited to meeting contemporary security threats, these commentators and policymakers advance new doctrines to expand the entitlement of states to use force unilaterally in self-defense.

This article rejects this perspective and the associated prescriptions for new legal rules to regulate the international use of force. It demonstrates that the U.N. Charter created a two-tiered system of rules and standards to govern the use of force. With respect to unilateral uses of force by states, the Charter employs a bright-line rule: to guard against erroneous and bad-faith invocations of the right of self-defense, force may be used unilaterally only in the event of an armed attack. The Charter employs a more flexible standards-based approach, subject to the procedural safeguards of collective decision-making by the Security Council, to authorize force to confront threats to international peace and security.

The article challenges the widely held assumption that the competing interests of the Permanent Members will inevitably produce gridlock in the Security Council with respect to collective action against the new security threats. To the contrary, there is an underlying affinity of interests among the Permanent Members with respect to these threats. The Permanent Members all face major international terrorist threats, and they all seek to preserve their near-monopoly over WMD. Accordingly, the Permanent Members share an interest in confronting international terrorism and preventing the proliferation of weapons of mass destruction. Because these contemporary security threats--unlike the rivalries of the Cold War era--do not implicate competing interests of the Permanent Members, the Security Council's security architecture is actually better suited to addressing today's threats than it was to countering the state-versus-state conflicts for which it was designed. The recent behavior of the Permanent Members reflects their increasing cooperation on the basis of this affinity of interests.

The article further argues that the use of force pursuant to the Charter's collective security provisions carries with it greater legitimacy, greater prospect for success, and less danger of destabilizing error or abuse than would force exercised pursuant to doctrines that expand the right of states to use force unilaterally. The Article also identifies pragmatic policy and diplomatic steps the Permanent Members should take to build upon their underlying affinity of interests regarding international terrorism and WMD proliferation so as to strengthen the capacity of the collective security architecture to confront these threats.

ABSTRACT:

While the refugee protection system is one of international law's most recognizable features, it routinely places massive numbers of refugees in camps in the developing world, where they face chronic threats to their physical security from crime and disorder, physical coercion, and military attacks. Yet key actors responsible for refugee protection, including host states, advanced industrialized countries, and the United Nations High Commissioner for Refugees (UNHCR), have failed to prioritize refugee security.

This article asks: (1) Why? (2) What have been the consequences? and (3) What do these answers reveal about how organizations carry out legal mandates in complicated political environments?

Conventional wisdom holds that security only recently became a major problem in the refugee protection system; that UNHCR's role in enhancing refugees' physical security is limited by the agency's legal mandate and practical constraints; and that problems of violence and physical security are largely episodic concerns affecting small numbers in discrete refugee populations. Drawing on historical documents, interviews, data on budgets and performance measures, and legal doctrine, I show this conventional wisdom to be wrong. Only some of the problems associated with the current system can be explained by international geopolitics or by legal compromises reflected in refugee law.Instead, that system's brutal realities also reflect bureaucratic dynamics, political pressures, and legal interpretations shaping the discretionary choices of UNHCR and its nongovernmental organization partners. I develop the argument by tracing the remarkable history of UNHCR as it transformed itself from a refugee advocacy organization with a limited mandate into a modern relief agency.

This evolution helps explain the persistence of security problems and sheds light on the challenges of implementing ambitious legal mandates under uncertainty, particularly when the organizations doing so operate in complex political environments.

This article adopts a two-tiered approach: it provides a detailed, historical account of anti-terrorist finance initiatives in the United Kingdom and United States--two states driving global norms in this area. It then proceeds to a critique of these laws. The analysis assumes--and accepts--the goals of the two states in adopting these provisions. It questions how well the measures achieve their aim. Specifically, it highlights how the transfer of money laundering tools undermines the effectiveness of the states' counterterrorist efforts--flooding the systems with suspicious activity reports, driving money out of the regulated sector, and using inappropriate metrics to gauge success. This article recognizes that both states consider the fight against terrorism to be partly military but also a matter of bringing certain democratic principles to bear. Critics have been quick to condemn some of the measures for their encroachments into civil liberties. My goal is not to measure the success of the laws according to any particular ideology but rather, accepting the governments' democracy-promoting goals, and the role these play in generating domestic and international support, to clarify which components do not appear to serve the states' aims.

This article won Stanford Law School's Carl Mason Franklin Prize for 2005-2006, for most distinguished written work in international law.