An Analysis of Responsibility to Contain

Towards the end of my first year of law school, a friend and I hosted a party to celebrate our upcoming summer vacation. We had a D.J., sound system, open bar and plenty of friends attending. But apparently we had too much fun that night because the cops showed up. Twice. And although we thought we'd finished our legal studies for the year, we were about to learn about the law of nuisance. By failing to contain the noise from our party, we gave the neighbors cause to enforce their right to live in peace and quiet.

The law of nuisance is well established and dates back to the 19th century, but a new legal theory known as the “Responsibility to Contain” (R2C) aims to apply nuisance principles to State actors' duty to contain domestic security threats. Former Secretary of Homeland Security Michael Chertoff coined the phrase in a recent article in Foreign Affairs. Chertoff's main argument can be summarized as follows: (1) States have a reciprocal responsibility to contain internal/domestic threats like terrorism and cybercrime from spilling into other countries, (2) States can contain these threats in whatever manner is consistent with their domestic law under the veil of sovereignty (provided the methods don't violate universal norms like genocide and crimes against humanity), and (3) if a State does fail to honor its duty, then any State affected by the security threat has a right to respond (presumably by force) in order to restore security.

Chertoff's R2C argument recognizes that new threats to national security like terrorism, nuclear proliferation, cybercrime, piracy and infectious disease cannot be effectively contained by any single country. These modern threats require the establishment of a global legal order to “synchronize enforcement efforts.” But R2C is more than just a thought-exercise; if validated, it could have implications for the U.S. response to threats such as those posed by Mexico's growing drug crisis. As we're all aware, the illicit drug trade has caused violent crime and human trafficking in the U.S. as well as Mexico. Mexican drug cartels have established networks in over 200 American cities. The current U.S.-Mexico border security challenge provides a great case study for evaluating the R2C doctrine. If one could make the argument that Mexico has not upheld its responsibility to contain, would the U.S have a right to protective action if circumstances take a turn for the worse? If so, what would such action entail?

Of course the U.S. and every other country threatened by imminent danger has a right to self-defense. This right is universally recognized and already enshrined in Article 51 of the U.N. Charter. In order for R2C to be meaningful, it should require international collaboration to build on the right of self-defense by defining fundamental principles that clearly articulate states' reciprocal security obligations. Chertoff's article is short on details and doesn't begin to wrestle with the tough issues. For example, we could take a different view of the U.S.-Mexico case and imagine a claim by Mexican authorities that the United States has failed to contain the demand for cocaine which has been propping up the Mexican drug cartels and threatening Mexican national security. Chertoff doesn't indicate how the R2C would deal with counterclaims such as this one.

So what should R2C look like? A reasonable goal is an international convention, treaty or U.N. Resolution that describes substantive and procedural matters. Any serious treaty or convention about R2C should outline the role that U.N. Security Council and the International Court of Justice must play in: (1) evaluating whether domestic threats have the potential to threaten international security, (2) creating a standard of proof for making a claim, (3) evaluating whether threatening actions are attributable to the accused State, (4) establishing procedures to resolve claims, (5) recommending pacific settlement of disputes, (6) defining the scope and proportionality of an armed response, and (7) endorsing State action and remedies to restore security.

Chertoff's responsibility to contain has the possibility to make public international law more relevant to national security policy makers. But Chertoff along with international legal scholars and policy makers will have to develop the R2C doctrine in order for it to stand as a principle of customary international law.