The Classification of States and the Creation of Status within the International Community

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* For a more detailed description of United States practice concerning the use of pejorative classifications and the reaction of other states, see P. Min- nerop, Die Stigmatisierung von Staaten. Eine volkerrechtliche Bewertung unter dem Prinzip der souverdnen Gleichheit der Staaten (Dissertation, University of Gottingen, forthcoming). 1 Address by President Reagan before the American Bar Association, Wash- ington D.C., 8 July 1985, Current Policy No. 721 (United States Depart- ment of State). 2 Cheney, Statement before the House Armed Services Committee, Wash- ington, D.C., 19 March 1991, 7 et seq.

3 Iran: 15 C.F.R. 742.8 and 746.7, 66 Fed.R. 36683, 12 July 2001; Syria: 15 C.F.R. § 742.9, 66 Fed.R. 36682, 12 July 2001; Sudan: 15 C.F.R. 742.10, 66 Fed.R. 36682, 12 July 2001; North Korea: 15 C.F. R. 742.19, 66 Fed.R. 36682, 12 July 2001; Cuba: 15 C.F.R. 7462, 66 Fed.R. 36682, 12 July 2001; Iraq: 15 C.F.R. 746.3, 66 Fed.R. 36682, 12 July 2001; Libya: 15 C.F.R. 746.4, 61 Fed.R. 64284, 4 December 1996, 62 Fed.R. 25469, 9 May 1997, 63 Fed.R. 42229, 7 August 1998, 64 Fed.R. 49383, 13 September 1999, 67 Fed.R. 51033, 6 August.2002, cf. also 31 C.F.R. 596.310, 1 July 2001. 4 E. Day, Economic Sanctions imposed by the United States against specific Countries: 1979 through 1992, Congressional Research Service Report to Congress, Order No. 92-631 Fed.R., 1 October 1992. 5 According to press releases the DoS has been investigating the track rec- ords of North Korea and Sudan, in order to determine if they could be ex- cluded from the list. But no concrete steps of this kind have been taken so far. See Washington Post, 1 May 2001. 6 Cf. Patterns of Global Terrorism, Overview of State-Sponsored Terrorism, 2000, , accessed on 9 September 2002: "State Sponsorship has decreased over the past several decades. As it de- creases, it becomes increasingly important for all countries to adopt a 'zero tolerance' for terrorist activity within their borders [...]. The United States continued actively re-searching and gathering intelligence on other states that will be considered for designation as state sponsors". 7 Press briefing with Spokesperson Rubin, 25 April 2000 on the adoption of a Resolution by the UN Commission on Human Rights which in his words: "[...] also confirms that democracy is not a regional value vested in any particular social, cultural, or religious tradition, but rather a universal value rooted in the rich and diverse nature of the community of democra- cies".

8 G. Wright, Washington Post, 19 June 2000. 9 Secretary of State, Albright, International Economic Leadership: Keeping America on the Right Track for the 21st Century, 18 September 1997, 9. 10 ABM Treaty Fact Sheet, Statement by the Press Secretary, Announcement of Withdrawal from the ABM Treaty on 13 December 2001, Archiv der Gegenwart 71 (2001), 45360. 11 Press briefing by Spokesperson Fleischer, 26 November 2001, , "Because there are many nations that hold weapons of mass destruction. The President was referring to those nations that are listed on the State Department's list as nations that sponsor terrorism, that would use them, which I think is something that should be self-evident to everybody in the room. What, if the American President would not speak sternly about any nation that is listed as a nation that sponsors terrorism from using weapons of mass destruction? Does anybody think that any nation that is a terrorist sponsor that would use

weapons of mass destruction would not be held accountable? Of course they will be. That's an existing American policy, always has been, and un- der President Bush it always will be". 12 The President's State of the Union Address, 29 January 2002, . 13 According to it "rogue states'' display the following features. They: "- brutalize their own people and squander their national resources for the personal gain of the rulers, - display no regard for international law, threaten their neighbours, and callously violate international treaties to which they are party, - are determined to acquire weapons of mass destruction along with other advanced military technology, to be used as threats offensively to achieve the aggressive designs of these regimes, - sponsor terrorism around the globe, and - reject basic human values and hate the United States and everything for which it stands", National Strategy for Homeland Security, 14.

14 N. Luhman, Das Recht der Gesellschaft, 1993, 550; W Friedman, The Changing Structure of International Law, 1964, 3. 15 N. Luhman, Die Politik der Gesellschaft, 2000, 372 et seq. 16 M. Koskenniemi, The Gentle Civiliser of Nations, 1989, 127.

17 F. Tonnies, Gemeinschaft und Gesellschaft, 1935, 1st edition 1887, 14; M. Weber, Wirtschaft und Gesellschaft, 1980, 20 et seq. (234 et seq). 18 Tonnies, see above, 14. 19 Tonnies, see note 17, 45. 20 Tonnies, see note 17, 40 et seq. 21 Friedman, see note 14, 60 et seq. 22 U. Di Fabio, Der Uerfassungsstaat in der Weltgesellschaft, 2001, 18. z3 Friedman, see note 14, 62.

za A similar view is upheld by A.L. Paulus, Die internationale Gemeinschaft im V61kerrecbt, 2001, 426 et seq., who arrives at the conclusion that state- community structures have emerged in some areas of legislation, while state-association structures still persist in others. 25 M. Koskenniemi, From Apology to Utopia — the Structure of Legal Argu- ment, 1989, 466 et seq.; B. Simma, From Bilateralism to Community Inter- est in International Law, RdC 250 (1994), 217 et seq. (248 et seq.).

26 "A Review of the State Department's Human Rights reports from the vic- tims' Perspective", Hearing before the Foreign Relations Committee, Ser. No. 107-73, 6 March 2002, 6, or also in the National Strategy for Home- land Security, 17 September 2002, 14; Wolfowitz, Speech delivered at the XXXVIII Munich Security Policy Conference, February 2002, , "It is not an accident that every state that sponsors terrorism also terrorizes its own people". 27 National Strategy for Homeland Security, of 17 September 2002, 14, Sec- retary of State, Albright, see note 9, 9.

28 National Strategy for Homeland Security, 17 September 2002, 14. 29 Speech given by the German Minister of Foreign Affairs Fischer before the Council of Foreign Relations in New York, 5 November 1999.

30 J.A. Frowein, "Reactions by not Directly Affected States to Breaches of Public International Law", RdC 248 (1994), 344 (350 et seq.); B. Fass- bender, "The United Nations Charter as Constitution of the International Community", Colum. J. Transnat'l L. 36 (1997/98), 529 et seq.; C. To- muschat, "Die internationale Gemeinschaft", AVR 33 (1995), 1 et seq. For a survey of notions of the international community and their origins in soci- ology and ethics, Paulus, see note 24. 31 Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, 174 et seq. (185). In its Opinion on the Genocide- Convention the ICJ recognizes "the principles underlying the Convention [as] principles which are recognized by civilized nations as binding on States, even without any conventional obligation", Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, 15 et seq. (23). 3z Case Concerning United States Diplomatic and Consular Staff in Teheran, ICJ Reports 1980, 3 et seq. (42 et seq., para. 92). 33 This is supported by the ICJ via one of its 'obiter dicta', Barcelona Trac- tion, Light and Power Company, Limited, ICJ Reports 1970, 3 et seq. (32, para. 32), the ICJ also addresses 'erga omnes' duties without an explicit linkage to the international community in the Case Concerning East Timor (Portugal v. Australia), ICJ Reports 1995, 90 et seq. (102, para.28), and in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1996, 595 et seq., (616, para. 33).

34 Vienna Convention on the Law of Treaties, UNTS Vol. 1155 No. 18232. 3s A/RES/48/23 of 24 November 1993: "[s]tresses the importance for the zone of peace and cooperation of the South Atlantic of the results of the United Nations Conference on Environment and Development, particu- larly the principles of the Rio Declaration on Environment and Develop- ment [...] in the conviction that their implementation will strengthen the basis for cooperation within the zone and for the benefit of the interna- tional community as a whole"; A/RES/48/139 of 20 December 1994: "Deeply preoccupied by the increasingly heavy burden being imposed, particularly upon developing countries with limited resources of their own and upon the international community as a whole, by these sudden mass exodus and displacements of population", also in A/RES/48/258 of 23 June 1994, A/RES/49/26 of 2 December 1994, A/RES/49/137 of 19 December 1995, A/RES/S-20/4 of 10 June 1998. 36 Doc. S/PRST/1994/40 of 29 July 1994: "the members of the Security Council demand an immediate end to all such terrorist attacks. They stress the need to strengthen international cooperation in order to take full and effective measures to prevent, combat and eliminate all forms of terrorism, which affect the "international community as a whole", also subsequently in Doc. S/PRST/1996/1 of 5 January 1996. 37 S/RES/1044 (1996) of 31 January 1996: "Stressing the imperative need to strengthen international cooperation between States in order to make and adopt practical and effective measures to prevent, combat and eliminate all forms of terrorism that affect the international community as a whole", also see S/RES/1045 (1996) of 8 February 1996; S/RES/1055 (1996) of 8 May 1996; S/RES/1064 (1996) of 11 July 1996.

38 S/RES/1189 (1998) of 13 August 1998: "Also stressing the need to strengthen international cooperation between States in order to adopt practical and effective measures to prevent, combat, and eliminate all forms of terrorism affecting the international community as a whole"; also see S/RES/1087 (1996) of 11 December 1996, S/RES/1075 (1996) of 11 Octo- ber 1996, S/RES/1064 (1996) of 11 July 1996, A/RES/54/109 of 9 Decem- ber 1999, A/RES/56/83 of 12 December 2001, Counter-terrorism is there- fore always "essential for the maintenance of international peace and secu- rity", S/RES/1214 (1998) of 8 December 1998, S/RES/1269 (1999) of 19 October 1999. 39 Article 19 (2) of the draft, ILC Yearbook 1996 11/2, 60; M. Spinedi, "Inter- national Crimes of State. The Legislative History", in: H.H. Weiler/ A. Cassese/ M. Spinedi, International Crimes of States, 1989, 7 et seq. (10 et seq. and 339 et seq.). 40 ILC Report 2000, J. Crawford, Third Report on State Responsibility, Doc. A/CN.4/507 (2000), 29 et seq.; Doc. A/CN.4/507/Add.4 (2000), J. Craw- ford, The International Law Commission's Articles on State Responsibility, 2002, 249 et seq.

al Case Concerning United States Diplomatic and Consular Staff in Teheran, 1CJ Reports 1980, 3 et seq. (42 et seq., para. 92). az A. Verdross, Die Verfassung der Volkerrechtsgemeinschaft, 1926.

43 G. Jellinek, Die Lehre von den Staatenverbindungen, reprinted 1996, 93 et seq. (95): "Therefore no civilised state dares, even if he has transgressed a norm of international law a hundred times, to question the validity of the norm itself". 44 Tomuschat, see note 30, 1, 4 and 7. 4s M. Nettesheim, "Das kommunitire V61kerrecht", Juristen Zeitung 57 (2002), 569 et seq. 46 G. Schwarzenberger as an illustrative example in: Power Politics, 1951, 148, 254: "In any international society, inter states relations are almost bound to be conducted initially on a society footing rather than on a community, for each of the independent groups has less in common with any of the others [...]". 47 As described by C. Tomuschat, "International Law: Ensuring the Survival of Mankind on the Eve of a New Century", RdC 241 (1993), 195 et seq. (228 et seq.); S. Hobe for the response of international law to transnational threats by including private actors, "Die Zukunft des Volkerrechts im Zeit- alter der Globalisierung", AVR 37 (1999), 254 et seq. (272, 279). 48 Paulus, see note 24, 228 et seq.

49 J.A. Frowein, "Das Problem des grenzuberschreitenden Informationsflus- ses und des 'domaine reserve'", Reports of the DGVR 39 (1999), 427 et seq., Tomuschat, see note 30, 12 et seq., Paulus, see note 24, 293-296. 50 M. Mc Dougal/ WM. Reisman, International Law Essays: A Supplement to International Law in Contemporary Perspective, 1981, 191 et seq. (195). 51 Tonnies based his sociological dichotomy between association and com- munity on the presence and strength of ties: "the theory of association con-

structs a circle of human beings who - as in a community - live side by side. These human beings, however, are not tied to each other as humans. Hence is a community people tied to each other in spite of all divisions, whereas in an association they remain divided in spite of all proximity", Tonnies, see note 17, § 19, 39, in: § 7. Tonnies points to the "from status to contract" formula of H.S. Maine, in his Ancient Law, 1905, 12 et seq., (170); D. Vagts focuses on the misuse of this terminology during the na- tional socialist era, "International Law in the Third Reich", AJIL 84 (1990), 661 et seq. (687).

52 Statement delivered by the French Representative Bourgouis to the Second Peace Conference at the Hague in 1907, on the relevance of this Confer- ence for the sovereign-equality-of-states principle see M. Huber, Die Gleichheit der Staaten, in: Juristische Festgabe des Auslandes zu J. Kohlers 60. Geburtstag, 1909, 88 et seq. (99 et seq.), and also, PCIJ Ser. A, No. 1 (1923), 25, more precisely on this A. Cassese, International Law, 2001, 88. 53 On the meaning of the Charter's principles A. Randelzhofer, "Ziele und Grundsatze der UN", in: R. Wolfrum, Handbuch Vereinte Nationen, 1991, 1151 et seq., the difficulties intrinsic to such general principles are analyzed by K. Doehring, Volkerrecht, 1999, item 188, et seq., also K. Hailbronner, in: W Graf Vitzthum, Volkerrecht, 2001, Chapter III No. 91 et seq. 54 R.P. Anand, "Sovereign Equality of States in International Law", RdC 197 (1986), 9 et seq. (52), Cassese, see note 52, 88; Vitzthum, in: id., see above, Chapter I No. 45 et seq. 55 G. Dahm/ J. Delbriick/ R. Wolfrum, Volkerrecht, Band I/1, 1989, 236. 56 R.Y. Jennings/ A. Watts, Oppenheim's International Law, 1992, Vol. I, 8 (§ 2); H.J. Morgenthau, Politics Among Nations, 1985, 290 et seq. 57 C. De Visscher: "La theorie de la souverainete relative explique le fait que les Etats individuels sont inclus dans les relations qui necessairement impo- ses certaint limitations sur leur volonte d'etre autonomes", quoted by J.P Cot/ A. Pellet, in: id. (eds), La Charte des Nations Unies, Art. 2 Para. 1, 87; H. Dreier, "Souveranitat", in: Gorres Gesellschaft (ed.), Staatslexikon Vol.

IV, 1988, Note 91, Columns 1203, 1208; D. Held, "Three Models of Sover- eignty. Law of States. Law of Peoples", Legal Theory 8 (2002), 1 et seq. (17 et seq.). 58 Case Concerning Military and Paramilitary Activities in and against Nica- ragua, ICJ Reports 1986, 14 et seq. 59 See also ECJ, Rs. 26/62, van Gend & Loos, Ruling of 5 February 1963, Collection 1963, 1, as regards the rationale for the ruling: "All this indicates that the Community represents a new legal order within international law, whose member-states limit their own sovereign rights, although in a limited fashion", cf. also the rationale of the PCJ in the Wimbledon Case, PCIJ Ser. A, No. 1 (1923), 25: "The Court declined to see, in the conclusion of any treaty by which a state undertakes to perform or refrain from performing a particular act, an abandonment of its sovereignty [...] the right of entering into international engagements is an attribute of state sovereignty". Island of Palmas Case, 2 RIAA (1928), 829; the Corfu Channel Case, ICJ Reports 1949, 4 et seq. (25, 27), cf. also the Dissenting Opinion Judge Winiarski, 49, 56 et seq. 60 UNCIO, Vol. I, 9th Plenary Sess. of 25 June 1945, Documents of the San Francisco Conference, 612, 614. 61 This a priori determined devaluation of opting-out mechanisms was con- sidered an infringement on the principle of sovereignty by the Soviet Un- ion. It aired the view that: "[...] it is wrong to condemn beforehand the grounds on which any state might find it necessary to exercise its right of withdrawal from the Organization. Such right is an expression of state sov- ereignty and should not be reviled, in advance, by the International Or- ganization" UNCIO, see above, 619. The eventually adopted Report of Committee 1/2 therefore felt obliged to stress that: "The Committee deems the highest duty of the nations which will become Members is to continue their cooperation within the Organization for the preservation of interna-

tional peace and security. If, however, a Member because of exceptional cir- cumstances feels constrained to withdraw, and leave the burden of main- taining international peace and security on the other Members, it is not the purpose of the Organization to compel that Member to continue its coop- eration in the Organization", UNC10, see above, 619, see the decision to adopt this proposal including the dissenting vote of the Soviet Union, 620. 62 Case Concerning Military and Paramilitary Activities in and against Nica- ragua, ICJ Reports 1986, 14 et seq. (106 et seq.); Jennings/ Watts, see note 56, 428 (§ 128). 63 ICJ Reports, see above, 118, 121, 259, and previously the Corfu Channel Case, ICJ Reports 1949, 4 et seq., (34); G. Nolte, Eingreifen auf Einladung, 1999, 167; id., "On Art. 2", in: B. Simma (ed.), The Charter of the United Nations, 2002, item 7; J.A. Frowein, "Die Intervention im heutigen System der Weltverfassung", in: E. von Jackel (ed.), Ist das Prinzip der Nichtein- mischung uberholt?, 1996, 9 et seq. (20 et seq.); id., "Die Verpflichtungen erga omnes im Volkerrecht und ihre Durchsetzung", in: Volkerrecht als Recbtsordnung, internationale Gerichtsbarkeit, Menschenrechte, 1983, 241 et seq. (255 et seq.).

64 Nolte, in Simma, see above, 63; B.D. Ro, Governmental Illegitimacy in International Law, 1999, 160 et seq.; M. Herdegen, Volkerrecht, 2002, § 35 item 1 et seq. 65 Case Concerning Military and Paramilitary Activities in and against Nica- ragua, ICJ Reports 1986, 14 et seq. (106); the Corfu Channel Case, ICJ Re- ports 1949, 4 et seq., (34 et seq.). 66 Jennings/ Watts, see note 56, 428 (§128); A. Verdross/ B. Simma, Univer- selles Volkerrecht, 1984, 301 (§ 492).

67 L. Oppenheim/ H. Lauterpacht (eds.), International Law, 1955, Vol. I, 8th edition, 260 et seq. (§ 112), also Jennings/ Watts, see note 56, 379 (§115); P. Kunig, "Staatenehre im V6lkerrecht",/»ra 20 (1998), 160 et seq. (161). 68 K.J. Partsch, Von der Wiirde des Staates, 1967, 12 et seq.; also H. Lauter- pacht, "Revolutionary Activities by Private Persons Against Foreign States", AJIL 22 (1928), 105 et seq. (106), for a critical viewpoint see Op- penheim, see note 67, 282 (§ 120). 69 King v Vint, State Trials (edited by T. B. Howell), 27 (1799), 627, 641, the trial had been caused by the following press statement: "The emperor of Russia is rendering himself obnoxious to his subjects by various acts of tyr- anny, and ridiculous in the eyes of Europe by his inconsistency, he has now passed an edict prohibiting the exportation of timber, deals etc.", quoted by E. Dickinson, "The Defamation of Foreign Governments", AJIL 22 (1928), 840 et seq. (842).

70 King v. Peltier, State Trials, see note 69, 28 (1803), 529, 619. This case had been investigated by the following statement: "O! Eternal disgrace of France, - Caesar, on the banks of the Rubicon, has against him in his quar- rel, the Senate, Pompey, and Cato, and in the plains Pharsalia, if fortune is unequal, if you must yield to the destinies, Rome in this sad reverse at least remains to avenge you a poignard among the last Romans", quoted by T. Starkie, Law of Slander and Libel, 1832 (reprinted 1997), 351 et seq. 71 Starkie, see above, 350. 72 R. J. Alfaro, "The Rights and Duties of States", RdC 97 (1959), 91 et seq., 110; Jennings/ Watts, see note 56, 379 (§ 115); G. Gidel, "Droits et Devoin des Nations", RdC 10 (1925), 537 et seq., (542); P. Fiore, International Law Codified and its Legal Sanction, 1918, article 62. 73 W. Schiicking, Internationale Rechtsgarantien, Ausbau und Sicberung der zwiscbenstaatlicben Beziehungen, 1919, 127 et seq.

74 An example in support is offered by Canada's Criminal Code, Revised Statutes of 1927, c. 36, § 135: "Every one is guilty of an indictable offence and liable to one year's imprisonment who, without lawful justification, publishes any libel tending to degrade, revile or expose to hatred and con- tempt in the estimation of the people of any foreign state, any prince or person exercising sovereign authority over such state.'' Article 95 of the Norwegian Criminal Code (1901) sets forth in a similar manner that: "Per- sons endangering the peaceful relations with another country, by reviling it in public or by inciting to hatred towards Norway and its Government, or by the unsubstantiated attributions of unjust or disgraceful actions to a for- eign Government - or by acting as an accomplice to such deeds - shall be punished with a fine or a imprisonment of up to one year". Article 115 of the Austrian Criminal Code (1912) stipulates that: "Every one diffusing false or defamatory news in print, which endanger the relations of the monarchy with a foreign country, shall be sentenced to a time span from nine week to one year in prison, or he shall be fined with 40-50 000 Krona". 75 See e.g. the provisions in article 84 of the Danish and article 95 of the Nor- wegian Criminal Code (1902). The Norwegian regulation was eventually annulled in 1909, due to significant application difficulties, see also article 115 of the Austrian Criminal Code (1912) and a Swiss Directive of 2 July 1915 (on 'Offentliche Beschimpfung eines fremden Volkes, eines Souverans oder einer fremden Regierung'). 76 Cf. Starkie, see note 70, 350; F.L. Holt, Law of Libel, 1816, 86; Schiicking, see note 73, 130.

77 Lammasch, capita selecta, No. 5, September 1917, 31 et seq. 78 A/RES/277 (III) C of 13 May 1949, the text of the Convention is contained in the Annex. �9 A/RES/277 (III) C of 13 May 1949, article IX , 2 and article X. 80 A/RES/277 (III) C of 13 May 1949, article XI. 81 A/RES/630 (VII) of 16 December 1952. The text of the Convention is contained in the Annex, effective as of 24 August 1962.

82 A/RES/630 (VII) of 16 December 1952, Preamble of the Convention. 83 Cf. Frowein, see note 49, 29 and B. Simma, �Grenzuberschreitender In- formationsfluf3 und domaine reserve der Staaten", Reports of the DGVR 19 (1979), 39 et seq. (60). 84 Cf. Jennings/Watts, see note 56, 379-381 (§ 115); M.N. Shaw, International Law, 1997, 137 et seq.; Verdross/ Simma, see note 66, §§ 455, 1052, Partsch, see note 68, 14. 85 A.A. D'Amato, "there is no Norm of Intervention or Non-Intervention in International Law", International Legal Theory 7 (2001), 1 et seq. 86 F. Berber, Volkerrecht 1, 1967, 202.

87 A/RES/2625 (XXV) of 24 October 1970. 88 A/RES/2131 (XX) of 21 December 1965. 89 The Draft Articles on the Responsibility of States for Internationally Wrongful Acts were adopted by the ILC during its 53rd Sess. the text is available in: Report of the International Law Commission on the Work of its 53rd Sess., GAOR 56th Sess. Suppl. No. 10 Chapter 1V.E.1, 43 et seq. 90 Article 31 of the ILC-Draft. t. 91 Article 34 of the ILC-Draft. 92 Arts 35-37, the formulation "insofar" in article 37 (1) indicates at this third kind of remedy is only applied in cases where other compensation methods do not provide sufficient remedy, cf. also Crawford, see note 40, 231.

93 Commentary on the Draft Articles on the Responsibility of States for In- ternationally Wrongful Acts, art. 37, 264, the text is available at , accessed on 6 May 2003. 94 On the impact of this ICJ ruling see United States-Department of State letter to United States-Court after the LaGrand Decision; Taft, United States-Department of State Legal Adviser, to Keating, Governor of Okla- homa on 11 July 2001, or also S.D. Murphy, "Contemporary Practice of the United States", AJIL 96 (2002), 461 et seq. (462). 95 ICJ Judgement of 27 June 2001, para. 125 - LaGrand, ILM 40 (2001), 1069 et seq.: "In the present proceedings the United States has apologized to Germany for the breach of Article 36, paragraph 1, and Germany has not requested material reparation for this injury to itself and to the LaGrand brothers. [...] The Court considers in this respect that if the United States, notwithstanding its commitment referred to in paragraph 124 above, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the indi-

viduals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties", cf. also K. Oellers-Frahm, "Der Inter- nationale Gerichtshof starkt die Stellung des Individuums im Volkerrecht und klart wichtige Fragen der Internationalen Gerichtsbarkeit, Neue Juri- stische Wochenschrift 54 (2001), 3688 et seq. and W J. Aceves, "LaGrand (Germany v. United States)", AJIL 96 (2002), 210 et seq. 96 See also Kunig, note 67, 163.

101 For further details, see the discussion under II. C. 102 On the recognition of the restrictive immunity-theory by the ICJ, see ICJ Reports 1998, Case Concerning the Differences Relating to Immunity from Legal Process of the Special Rapporteur of the Commission on Human Rights, items 33-35 B, as regards state practice and the recognition of the territoriality principle, see the Report of the Working Group of the ILC on "Immunities of States and their Property", Report of the International Law Commission, 1999, Annex, No. 45-55. Io3 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Repub- lic of the Congo v. Belgium), ICJ Ruling of 14 February 2002.

104 On the scope of state immunity during violations of ius cogens in armed conflict, cf. article 7 of the Charter of the International Military Tribunal (1945), article 7 (2) of the Statute of the International Criminal Tribunal for the former Yugoslavia (1993), cf. also Prosecutor v. Tadic, ILR (1995), 419 et seq.; arts 3 and 6 (2) of the Statute of the International Criminal Tribunal for Rwanda (1994), arts 27, 28 and article 8 of the ICC (1998). 105 On the historical i.e. case-based evolution and the "double criminality'' etxradition criterion (which requires a decision on immunity, as extradi- tions can only be lawful if domestic jurisdiction would apply to a case where British nationals had been injured) cf. M. Byers, "The Law and Politics of the Pinochet Case", Duke J. Comp. f� Int'l. L. 10 (2000), 415 et seq. (422—437); A. Bianchi, "Immunity versus Human Rights: The Pino- chet Case", EJIL 10 (1999), 237 et seq. (254 et seq.), on the immunity of former heads of state also article 13 (2) of the Resolution issued by the In- stitut de Droit International in 2001, in addition, see the legal positions as regards the Case Concerning the Arrest Warrant of 11 of April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Ruling of 14 Febru- ary 2002. 106 House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte of 25 November 1998, Weekly Law Reports 2 (1998), 1456, 1500, Lord Nichols of Birkenhead: "And it hardly

needs saying that torture of his own subjects, or of aliens, would not be re- garded by international law as a function of a head of state", and 1501: "Acts of torture and hostage-taking, outlawed as they are by international law, cannot be attributed to the state to the exclusion of personal liability", also cf. Lord Steyn, 1506 and 1507. The vote consisted three votes in favour and two against. l07 The plaintiffs had been striving towards such a decision, as the first appel- lative chamber had not been constituted according to legal requirements, cf. House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte, Weekly Law Reports 3 (1999), 827, 828. 108 House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte of 24 March 1999, see above, 847 et seq., Lord Wilkinson: "Under the Convention the international crime of torture can only be committed by an official or someone in an official ca- pacity. They would all be entitled to immunity. [...] In my judgement all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention". The verdict in this matter was reached by a majority of five to one votes. 109 Byers, see note 105; on the immunity of incumbent heads of state cf. Cli- non v. Jones, 520 S.Ct. (1997), 681 et seq.; United States of America v Noriega, 746 ET Seq. Supp. (1990), 1506 (1519); Filartiga v. Pena-Irala 577 F. Supp. (1984), 860 et seq., on civil-court litigations see Argentine Repub- lic v. Amerada Hess Shipping Corporation, 109 S.Ct. (1989) 683 et seq.; Siderman de Blake v. Republic of Argentina, 965 F.2d (1992) 699 et seq.

110 Ruling by the Court de Cassation of 13 March 2001, Bulletin des Arrets de la Court de Cassation, No. 1414, 1. 111 See S. Zappala, "Do Heads of State in Office Enjoy Immunity from Juris- diction for International Crimes? The Ghaddafi Case before the French Cour de Cassation", EJIL 12 (2001), 595 et seq. (607). 1 i2 Fogarty v. United Kingdom, Ruling of 21 November 2001 HRLJ 23 (2002), 50 et seq.; McElhinney v. Ireland, Ruling of 21 November 2001, HRLJ 23 (2002), 57 et seq.; Al-Adsani v. United Kingdom, Ruling of 21 November 2001, No. 35763/97, HRLJ 23 (2002), 39 et seq. 113 On the civil character of this claim, cf. W Peukert, in: J. A. Frowein/ A. Peukert (eds), Europdische Menschenrechtskonvention, article 6 (15) and on the claim to compensation see item 22. t14 ECHR, Fogarty, see note 112, item 26 f, 35-37; McElhiney, see note 112, item 25 f, 35-38.

115 ECHR, Al-Adsani, see note 112, item 51. 116 ECHR, Al-Adsani, see notell2, item 41. 117 ECHR, Al-Adsani, see notell2, item 66. 118 ECHR, Ruling of 19 December 2001, Bankovic v Belgium, No. 52207/99, item 80, the verdict of the ECHR differs, however, in Loizidou v. Turkey, No. 15318/89, (1995), item 71, for a critical view on this finding, see A. Laursen, "NATO, the War over Kosovo, and the ICTY Investigation", Am. U. Int'l L. Rev. 17 (2002), 765 et seq. (796-800).

119 The Working Group has been established in December 2000, see A/RES/55/150 of 12 December 2000, A/RES/56/78 of 12 December 2001, item 4. The ad-hoc Committee was convened for a session between 4th and 13th February 2002. t2o Report of the ad-hoc Committee on Jurisdictional Immunities of States and their Property, Doc. A/57/22 of 15 February 2002. Reports of the ad-hoc Committee on Jurisdictional Immunities of States and their Property, see above, article 5: "A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present articles." 122 See Doc. A/57/22, see note 120, article 12 on personal injuries and damage to property. 123 Report of the ILC (1999) Annex, Report of the Working Group on Immu- nities of States and their Property, Annex, 1999, No. 122, items 9-12.

124 Report of the ILC, see above. 125 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Repub- lic of the Congo v. Belgium), see note 103, para. 53-55; P. Daillier/ A. Pellet, Droit International Public, 1999, 446 et seq.

126 Cf. Jennings/ Watts, see note 56, 331 (§104): "Until the last two decades of the 19 century there was general agreement that membership of the inter- national community necessarily bestowed so-called fundamental rights on states", Note 1: "these were chiefly enumerated as the rights of existence, of self-preservation, of equality, of independences, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation"; T.J. Lawrence, The Principles of International Law, 1925, 106 et seq.; cf. P.H. Kooijmans, The Doctrine of Legal Equality of States, 1964, 53 et seq. i27 Cf. article 4 of the Montevideo Convention on the Rights and Duties of States (1933), AJIL 28 (1934), Suppl. 75, cf. also the former article IIL1 of the Statute of the Organization of African Unity, ILM 2 (1963), 766, or ar- ticle 6 of the Charter of the Organization of American States. 128 A/RES/2625 (XXV) of 24 October 1970, the general principle quoted above serves as a foundation for the following rights, derived in the Reso- lution : "(a) States are juridically equal, (b) Each State enjoys the rights in- herent in full sovereignty, (c) Each State has the duty to respect the person- ality of other States, (d) The territorial integrity and political independence of the State are inviolable, (e) Each State has the right freely to choose and develop its political, social, economic and cultural systems, (f) Each State has the duty to comply fully and in good faith with its international obli- gations and to live in peace with other States". 129 Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq. (263 et seq., para. 98-104).

13o B. Kingsbury, "Sovereignty and Inequality", EJIL 9 (1998), 599 et seq. (610). 131 Cf. P. Fiore, Nouveau droit international Public, 1918 Vol. I, § 428, 374: "11 nous semble que pour etre completement exact, on devrait dire que chaque Etat devrait avoir le droit d'etre 1'6gal des autres, independamment de son importance et de sa force. Il y a loin entre ce desir vertueux exprime avec raison par les publicistes et la realite". Doehring adds the standpoint that equality was always pretence, and never a factual condition, see note 53, para. 189. 132 J.L. Brierly, The Law of Nations, 1963, 132 et seq. 133 Cf. Cassese, see note 52, 90 et seq.: "Consequently, possible legal hin- drances or disabilities may be the result of factual circumstances [...]. Al- ternatively, legal constraints, if any, are only valid if accepted, in full free- dom, by the State concerned [...]"; Jennings/ Watts, see note 56, 376-379 (§114); P. Cullet, "Differential Treatment in International Law: Towards a New Paradigm of Inter-state Relations", EJIL 10 (1999), 549 et seq. (553 et seq.); G. Schwarzenberger, "Equality and Discrimination in International Economic Law (I)", Yearbook of World Affairs 25 (1971), 163 et seq.

134 Cf. Verdross/ Simma, see note 66, 275 (§ 475), and K. Hailbronner, in: W Graf Vitzthum (ed.), Volkerrecht, Chapter 111, items 91 et seq. 135 E. Dickinson, "The Equality of States in International Law", 1920, 122, therefore Goebel opts for another approach, which bases his theory of equality on the philosophical ideals of equality and a state community, ibid., 3 et seq., (79 et seq.). 136 E. Vattel, Le Droit Des Gens ou Principes De La Loi Naturelle, 1758 (re- printed 1959), Vol. II, Chapter III, § 40. i3� J. Lorimer, The Institutes of the Law of Nations, Vol. I, 1883, 170 et seq.; S. Amos, A Systematic View of the Science of Jurisprudence, 1872, 235.

138 Kingsbury, see note 130, 599, 603, Jennings/ Watts, see note 66, 339 et seq. (§115), in the first edition (1905) Oppenheim defined equality as follows: "In entering the Family of Nations a State comes as an equal to equals, it demands a certain consideration to be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy [...] derived from their International Personality", Hailbronner, see note 134, Chapter III, item 91. 139 A/RES/2625 (XXV) of 24 October 1970. 140 Ecuador's proposal states that the juridical equality of sovereign states should be seen: "[...] as an expression of their identical law which governs their reciprocal relations and as a means for correcting and repairing any practical or political inequality which may occur between them", Text of Proposals for the Establishment of a General International Organization, UNCIO, Documents of the San Francisco Conference, Vol. III, 420, 421. The Turkish Government used the principle of sovereign equality to derive the proposal that the General Assembly should function as the supreme

decision-maker as regards preserving the peace. UNCIO, see above, 480, 481, and Vol. IX, 274. Venezuela agreed with this position, Vol. IX, 274, Cuba added its own Draft Declaration of Duties and Rights of Nations, in which equality is defined as follows: "All states are equal before the law, and each one has the same rights as any other which is a member of the In- ternational Community", UNCIO, Vol. III, 493, 497. 141 New Uruguayan Proposals on the Dumbarton Oaks Proposals, UNCIO, Vol. III, 34, 35. 142 Amendments proposed by the Governments of the United States, the United Kingdom, the Soviet Union, and China, 5 May 1945, UNCIO, Vol. III, 622. 143 Ibid. 623. This proposal substituted the preceding formulation, which contained the reference to "peace-loving states.'' 1� UNCIO, Vol. I, 230, 249. 145 Report of Committee 1 to Commission I, Documents of the San Francisco Conference, Vol. VI, 310 et seq.

iab Report of the Rapporteur of Subcommittee I/1/A to Committee I/1 of Commission I , 1 June 1945, UNCIO, Vol. VI, 717, also cf. the discussion of Commission I, 15 June 1945, UNCIO, Vol. VI, 65, 70. ia7 UNCIO, Appendix to Rapporteur's Report, Committee 1/1 on 9 June 1945, Vol. VI, 402, 404. 148 Report of the Rapporteur of Commission I, 21 June 1945, UNCIO, Vol. VI, 229 et seq. 149 UNCIO, Vol. I, 612, 631.

150 Draft Declaration on the Rights and Duties of States; A/RES/178 (II) of 21 November 1947. The provision corresponds to article 6 of the Panamanian Draft. 151 Report of Committee 1 to Commission I, UNCIO, Vol. VI, 457. 1sz ILCYB 1 (1949), 288: "this text was derived from Article 6 of the Panama- nian draft. It expresses, in the view of the majority of the Commission, the meaning of the phrase 'sovereign equality' employed in Article 2 (1) of the Charter of the United Nations as interpreted at the San Francisco Confer- ence, 1945". 153 Dickinson, see note 135, 3: "International Persons are equal before the law when they are equally protected in the enjoyment of their rights and equally compelled to fulfil their obligations".

154 Dickinson, see note 135, 4 et seq. 155 G. Jellinek, System der subjektiven 6ffentlicben Rechte, 1919, 319, or see J. L. Brierly, The Outlook for International Law, 1945 (reprinted 1977), 30, 65 et seq.; also the Declaration on the Rights and Duties of States adopted by the American Institute of International Law 1916, article III: "Every nation is in law and before the law the equal of every other national be- longing to the society of nations", AJIL 10 (1916), 125, Dickinson, see note 135, 4 et seq. 156 Dickinson, see note 135, 4: "the equality of states in this sense means, not that all have the same rights, but that all are equally capable of acquiring rights, entering into transactions, and performing acts. When used in this significance, equality may be said to constitute the negation of status", J. Goebel, The Equality of States, 2 et seq.; Kooijmans, see note 126, 50 et seq.; also cf. R. W Cox, "Labor and Hegemony", International Organiza- tion 31 (1977), 385 et seq. (423). 157 Cf. Dahm/ Delbruck/ Wolfrum, see note 55, 238, for a critical view on the NATO-intervention in Kosovo in 1999 without a UN-mandate, but on behalf of the "international community" see N. Krisch, "More Equal than

the Rest? Hierarchy, Equality and US Predominance in International Law", in: M. Byers/ G. Nolte (eds), United States Hegemony and the Foundations of International Law, 2003, quoted from the pre-publication version, 9 et seq. 158 Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq., Dissenting Opinion Judge Weeramantry, 429, 527.

159 On the meaning of trust in international relations, see, ICJ Reports 1974, 252 et seq. (268 para. 46): "One of the basic principles governing the crea- tion and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential".

160 On the existence of an implicit forfeiture of immunity, in case of a violation of ius cogens see the Dissenting Opinion of Judge Wald in Princz v. Federal Republic of Germany, 26 F. 3d (1994), 1166, 1182.

161 Cf. Kingsbury, see note 130, 599, 611.

t62 Cf. O. Kallscheuer, "Hegemonie", in: D. Nohlen (ed.), Lexikon der Politik, Vol. I, 1995, 174; P. Noack (ed.), Grundbegriffe der politikwissenschaftli- chen Fachsprache, 1976, 99 et seq. 163 The British Prime Minister Palmerston described the decision-making pro- cess within the "Concert of Europe" in 1848 as follows: "the smaller Sov- ereigns, Princes, and States, had no representatives in the deciding congress, and no voice in the decisions by which their future destiny was determined. They were all obliged to yield to overruling power, and to submit to deci- sions which were the result, as the case might be, of justice or of expedi- ency, of generosity or of partiality, of regard to the welfare of nations, or of concessions to personal solicitations", quoted by Dickinson, see note 135, 295. 164 treaty of Peace and Friendship between the People's Republic of China and Japan of 12 August 1987, article II: "The Contracting Parties declare that neither of them should seek hegemony in the Asia-Pacific region or in any other region and that each is opposed to efforts by any other country or group of countries to establish such hegemony", ILM 17 (1978), 1054.

i65 A. Gramsci, Sozialismus und Kultur, 1916 and Gefangnishefte, (1929-1935), on Gramsci's impact on an area of critical legal studies, cf. D.E. Litowitz, "Gramsci, Hegemony and the Law", Brigham Young University Law Re- view 2000, 515 et seq. i66 H. Triepel, Die Hegemonie. Ein Buch vonfiibrenden Staaten, 1943. 167 Triepel, see above, 40, 59 et seq., 128, 131; cf. also U.M. Gassner, Heinrich Triepel, Leben und Werk, 1999, 333 et seq.

168 Triepel, see note 166, 41: "[...] Fiihrung ist als diejenige Macht zu bezeich- nen, die ein starkes Ma8 von Energie des Willens, aber nicht den Willen zur Herrschaft enthalt. Fiihrung ist [...] gebandigte Macht"; cf. also the argu- mentation on sovereignty and hegemony on page 141, and later 224. 169 It becomes clear at this point that Triepel recognizes an aspect of hegemony linked to political psychology: "Auch das Volk denkt, will, ist Affekten zu- gänglich. Nicht nur Menschen, auch Volker und Staaten sind imstande, Sympathien und Antipathien zu hegen, zu lieben und zu hassen, Furcht und Vertrauen, zu hegen, Treue zu iiben und Verrat zu begehen, zu wiin- schen, zu hoffen, zu befehlen und zu gehorchen", cf. Triepel, see note 166, 10. "Es ist daher nicht nur eine der iiblichen, durch das Bediirfnis nach pla- stischer Darstellung hervorgerufenen popularen Analogien, sondern es ist wissenschaftlich zulassig und geboten, bei der Behandlung von Willensbe- ziehungen zwischen verschiedenen Gruppen, insbesondere zwischen ver- schiedenen Staaten, auch individualpsychologische Begriffe, wie etwa Machtstreben, Nachahmung und dergleichen zu verwenden", 11. 17o Triepel, see note 166, 134 et seq. t71 Triepel, see note 166, 222 et seq. 172 Triepel, see note 166, 224-239. 173 V/G. Grewe, Spiel der Krdfte in der Weltpolitik, 1970, 116.

174 W.G. Grewe, Epochen der Volkerrechtsgeschichte, 1984, 679 et seq. (691). 175 Cf. Grewe, see above, 165, 326 et seq. 176 Grewe, see note 174; and Epochs of International Law, translated and com- plemented by M. Byers, 2000, cf. also B. Fassbender, "Stories of War and Peace on Writing the History in the "Third Reich" and after", EJIL 13 (2002), 479 et seq. 177 L. Dehio, Gleichgewicht oder Hegemonie, 1997, 28 et seq. 178 W Windelband, Die auswartige Politik der Grof3mdchte in der Neuzeit, 1922. 179 Grewe, see note 173, 117.

180 G. Schwarzenberger, Power Politics, first edition 1942, second edition 1951, 113 et seq., 127. 181 Schwarzenberger, see above, 121. 182 Schwarzenberger, see note 180, 118 et seq. ls3 Schwarzenberger, see note 180, 188. tsa C. Schmitt, Volkerrechtliche Grof3raumordnung mit Interventionsverbot fur raumfremde Mdchte, 1939. tss C. Schmitt, Der Nomos der Erde, 1988, on Schmitt's being influenced by Bilfinger and Triepel cf. M. Schmoeckel, Die Groflraumtheorie, 1994, 117- 120. 186 Fassbender points out the overlapping terminology, used by Grewe as bor- rowings from Schmitt, see note 176, 479, 503.

18� Schmitt, see note 185, 12. 188 See M. Stolleis, Geschichte des offentlichen Rechts in Deutschland, Band 3, 1999, 389-392. Thus, it can be questioned, whether Schmitt's understanding of hegemony can be useful in this context. On the one side, one cannot ex- clude, that a concept can bring the discussion forward, as long as it contains general thoughts apart from being "volkisch". On the other side, it has to be taken into account, that Schmitt based his "volkerrechtliche Grof3raum- ordnung" mainly on the idea of "volkische" legal institutes. Thus, this con- cept of "Grof3raumordnung" can easily be seen as an derivation of his thinking, which had to be interpreted in the light of the "volkisch" thoughts. Notwithstanding, this concept was based on an universal ap- proach, insofar as he did not mean to restrict its use for one nation. Thus, the fact that this concept was open easily for nationalsocialism interpreta- tion and therefore particularly dangerous, does not necessarily mean that the concept as such cannot be abstracted from its concrete adaptation. Only insofar as abstaction is possible, his concept serves as a further exam- ple of hegemonic thinking and its dangerous implications for a community of states in general. 189 Schmitt, see note 184, 67 et seq.

190 Cf. also Schmoeckel, see note 185, 64-67. 191 On the decisionist aspect of Schmitt see Schmitt, Uber die drei Arten des rechtswissenschaftlichen Denkens, second edition 1993, 21-24. 192 Triepel, see note 166, 212 et seq. i93 Triepel, see note 166, 217 et seq. 194 Triepel, see note 166, 213. 195 Schwarzenberger, see note 180, 206, and 224: "International law is so sub- servient to power politics and it flourishes best where it does not interfere with the international struggle for power", "The State or States which, owing to the aggressive formulation of the objectives of their foreign poli-

cies or to the distrust of their intentions on the part of other States, tend to enforce the law of the lowest level in international society usually belong to the international oligarchy or are on the point of gate-crashing into this se- lect circle ",148 et seq. 196 Schwarzenberger, see note 180, 225. 19� Schwarzenberger, see note 180, 227: "The ideological use of international morality reaches its highest pitch when public opinion has to be prepared for war or to be sustained in a prolonged struggle". 198 Schwarzenberger, see note 180, 227. 199 Schwarzenberger, see note 180, 230.

zoo L. Brilmayer, American Hegemony Political Morality in a One Superpower World, 1994. 201 Brilmayer, see above, 16: "Hegemony below, will refer to the relationship between a dominate state and its subordinates, even if there are states be- yond the hegemon's effective reach". 202 Brilmayer, see note 200, 16 et seq. 203 Brilmayer, see note 200, 22: "Governance roles may be created or filled by formally equal participants. In both international and domestic affairs, the political leader plays a dual role, simultaneously a member of society and its head". 204 Brilmayer, see note 200, 20 et seq. 205 Brilmayer, see note 200, 4 et seq.; cf. also L. Brilmayer, "Transforming In- ternational Politics: An American Role for the Post Cold War World", University of Cincinnati Law Review 64 (1995), 119 et seq. (123). 206 Brilmayer, see note 200, 19: "the hegemon should be evaluated, in other words, as the world political leader that it is, despite its formal differences from domestic governance structure's it has the same sorts of responsibili- ties to subordinate states that a domestic government with comparable ca- pabilities would have over those within its power".

zo� See C.A.J. Coady for a critique, which raises the question if these ethical criteria command any power of definition, in: "Evaluating Hegemony", N. Y. U. J. Int'l L. & Pol. 27 (1995), 933 et seq. (935). 208 Contemporaneous consent denotes the consensus at the time of execution of a concrete action, whereas the ex-ante variant precedes action and un- derpins general norms of behaviour, which favour the action to be taken. Hypothetical consent is materialized when a rational-actor state would have been obliged to agree to the action, Brilmayer, see note 200, 66 et seq. 209 M.J. Maeson, "Justification for the NATO air campaign in Kosovo", ASIL Proceedings 94 (2000), 301; S.D. Murphy, "The Intervention in Kosovo: A Law-Shaping Incident?", ASIL Proceedings 94 (2000), 302 et seq.; or cf. J. Lobel, "Benign Hegemony?", Chicago J. Int'l L. 1 (2000), 19 et seq. (27 et seq.); G. Nolte, "Kosovo und Konstitutionalisierung: Zur humanitaren Intervention der NATO-Staaten", ZaoRV 59 (1999), 941 et seq. (954 et seq.); B. Simma, "NATO, the UN and the Use of Force", EJIL 10 (1999), 1 et seq. (14 et seq.), on combatting a clear and present danger through a be- nign hegemon in the post Cold-War era cf. W Kristol/ R. Kagan, The Na- tional Interest, 2000, 57 (58 et seq.).

210 Coady, see note 207, 940 et seq.: "If we are told in reply that this form in- volves the Superpower's exercising a dominant governance role akin to the leadership of a domestic government, but using diplomacy, bribery, sanc- tions, and violence to achieve what it takes to be good outcomes for people who are not formally its citizens and subjects, then I think we are entitled to ask whether it is really such a good idea, and, if not, whether the attempt to improve on it by, as it were, building upon it, might not be a mistake". 211 For a critical review of the implications of this liberal theory, see J.E. Alva- rez, "Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory", EJIL 12 (2001) 183 et seq. (185 et seq.). 212 W Kristol/ R. Kagan, "Toward a Neo-Reaganite Foreign Policy", Foreign Aff. 75 (1996), 18 et seq. (23); R. W Tucker, "Alone with others", Foreign Aff. 78 (1999), 15 et seq. 213 R. Kagan, Paradise and Power, 2003, 30 et seq.

214 P. O'Sullivan, Geopolitics, 1986, 5 et seq.; J.M. Picard, "International Law of Fisheries and Small Developing States: a Call for the Recognition of Re- gional Hegemony", Tex. Int'l L. J. 31 (1996), 317 et seq. (339). 215 H. Bull, The Anarchical Society. A Study of Order in World Politics, 1977, 205-229. 216 R.O. Keohane/ J. Nye, Power and Interdependence: World Politics in Transitions, 2001, 44. 217 Keohane/ Nye, see above, 39; cf. also S. Huntington, "The Lonely Super- power", Foreign Aff. 78 (1999), 35 et seq. (39): "[T]he most powerful actors had an interest in maintaining the system." 218 D.P. Calleo, "The US Post-Imperial Presidency and Transatlantic Rela- tions", International Spectator 1 (2000), 69 et seq. (74): "Henry Kissinger used to complain that he never knew what telephone number to call to dis- cover what was Europe's policy. It would be interesting to know what the telephone number might be nowadays in Washington". 219 R.O. Keohane, After Hegemony, Cooperation and Discord in the World Political Economy, 1984, 34.

220 J. Nye, Bound to lead. The changing Nature of American Power, 1990, 9 et seq.; R. Gilpin, War and Change in World Politics, 144, or see Calleo, see note 218, 79: "The combination of excessive power and governmental in- discipline is not good for the US, the West or the world in general. The US needs to be contained - not by a new enemy, but by an old friend". 221 Keohane, see note 219, 31. 222 Keohane, see note 219, 33, also cf. S.D. Krasner, "United States Commer- cial and Monetary Policy: Unravelling the Paradox of External Strength and International Weakness", in: P.J. Katzenstein (ed.), Between Power and Plenty: Foreign Economic Policies of Advanced Industrial States, 1978, 51 (68 et seq.). 223 Keohane, see note 219, 32. 224 S.D. Krasner, "Structural Causes and Consequences of regimes as inter- vening variables", in: id. (ed.), International Regimes, 1983, 355 (357). 225 Keohane, see note 219, 38 et seq.

226 Keohane, see note 219, 131. 227 Keohane, see note 219, 39. 228 I. Wallerstein, The Polititics of the World Economy: The States, the Move- ments, and the Civilizations, 1984, 38 229 R. Gilpin, War and Change in World Politics, 1981, 29 et seq. 230 p� Kahn, "American Hegemony and International Law. Speaking Law to Power: Popular Sovereignty, Human Rights and the New International Order", Chicago J. lnt'lL. 1 (2000), 1 et seq. (16 et seq.).

239 Cf. Huntington, see note 217, 38. 240 Cox, see note 238, 412 et seq. The author quotes the United States with- drawal from the ILO as an example. 241 Vagts, see note 231, 847. 242 Vagts, see note 231, 847. 243 TJ, Farer, "Beyond the Charter Frame: Unilateralism or Condominium", AJIL 96 (2002), 359 et seq. (360), "The normative consequences of 9/11 are likely to depend on the what and how of United States action". 244 J.L. Goldsmith/ E.A. Posner, "A theory of Customary International Law", U. Chi. L. R. 66 (1999), 1113 et seq. (1136 et seq.).

245 See above, III. 1. a. aa.

246 Cf. Morgenthau, see note 56, 258.

247 ABM-Treaty Fact Sheet, Statement by the Press Secretary, Announcement of Withdrawal from the ABM Treaty, 13 December 2001. 2as Treaty between the United States of America and the Union of Soviet So- cialist Republics on the Limitation of Anti-Ballistic Missile Systems of 26 May 1972, UNTS Vol. 944 No. 13446, "Art. XV: (1) This Treaty shall be of unlimited duration. (2) Each Party shall, in exercising its national Sover- eignty, have the right to withdraw from this Treaty if it decides that ex- traordinary events related to the subject matter of this treaty have jeopard- ized its supreme interest. It shall give notice of its decision to the other Party [during the] six month prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events notifying Party regards as having jeopardized its supreme interests".

249 ABM Fact Sheet, Announcement of Withdrawal from ABM Treaty, 13 De- cember 2001, see also Response to Russian Statement of United States ABM Treaty Withdrawal, Statement by the Press Secretary, 13 December 2001, . 250 Wolfowitz/ Kadish, Testimony Before the House Armed Services Com- mittee on Ballistic Missile Defense, 19 July 2001, , accessed on 14 August 2001; cf. also International Herald Tribune of 4 May 2001, "China Warns "Weak" Bush over Shield Plan;" Myers/ Glanz, "Pentagon set to accelerate Development of limited Missile Defense, ibid., 4; and "rogue states" of America, Why Bush Needs the Bad Guys", The Guardian of 12 March 2001. zsi geesing's Records of World Events 47 (2001), 44429. z5z Archiv der Gegenwart 71 (2001), 44825. 253 On the debate also cf. the articles, "Strategisches Denken", Frankfurter Allgemeine Zeitung, 16 June 2001, 11, which warns of an excessive militari-

zation of Bush's foreign policy. On the negotiations between Bush, Powell, Rumsfeld and the European Union, see "Schutzschild oder Muhlstein?", Frankfurter Allgemeine Zeitung, 11 June 2001, 16. 254 National Strategy for Homeland Security, 14 et seq. 255 Ibid., 15. 256 Ibid., 16.

257 107 Congress, 2nd Session, H.R.E 468 of 27 June 2002, lodged by House Representatives Gallegly, Bereuterm, Lanots and Cox. 258 The President's State of the Union Address of 29 January 2002, . 259 Cf. also, International Herald Tribune, 8 May 2002, "Cuba Makes Germs for Use in War, United States Says", or The Guardian Unlimited, 7 May 2002, "War on Terror May Extend to Cuba".

260 The National Security Strategy of the United States of America, September 2002, 14-16.

261 This mechanism is described in a different context by M. Lazarus-Black/ A. Hirsch, "Performance and Paradox: Exploring Law's Rule in Hegemony and Resistance", in: id. (eds), Contested States, 1994, 1 (10): "Although some people seek inclusion in legal processes for specific ends, others 'get included' in the law quite implicitly through the legalities that hegemoni- cally organize their lives. In both cases, people regularly appropriate the terms, constructs, and procedures of law in formulating opposition. For example, colonial subjects protested their subordination through domestic documents which incorporated, often inaccurately, the language of colonial law".

262 M. Weller, "The Changing Environment for Forcible Responses to Non- traditional Threats", ASIL Proceedings 92 (1998), 177 et seq. (184 et seq.), on changes in United States foreign policy after 11 September 2001 also W R. Mead, Special Providence, American Foreign Policy and how it changed the World, 2002, 56 et seq., 79 (306 et seq.); Nye, see note 220, who proposes a "strategy based on Global Public Goods," which would rest on the following six issues, 147: "(1.) Maintain the balance of power in important regions, (2.) Promote an open international economy, (3.) pre- serve international commons, (4.) Maintain international rules and institu- tions, (5.) Assist economic development, (6.) Act as convenor of coalitions and mediator of disputes", see also his interview for the Frankfurter All- gemeine Zeitung, 23 April 2003, 5: "Notwendig ist eine Diskussion uber das V61kerrecht", zum Verhaltnis zwischen Unilateralismus und Multilate- ralismus. 263 See note 260, section V, 15. 264 Case Concerning Military and Paramilitary Activities in and against Nica- ragua ICJ Reports 1986, 14 et seq. (100 et seq. paras 190-192); or ILCYB 1966-II, 247, for a reference to the ILC Comment on article 50 of the Draft on treaty law. 265 Case Concerning Military and Paramilitary Activities in and against Nica- ragua, see above, 102, para. 193: "The general rule prohibiting force allows for certain exceptions", also cf. Jennings/ Watts, see note 66, 8, (§ 2).

266 The air force operations of 2 August 2001 in Northern Iraq were denoted by President Bush as "fully in accordance with established allied war plans," Keesing's Records of World Events 47 (2001), 44320. 267 Cf. the International Herald Tribune, of 11 October 2002, 4 and 8, also cf. the Press Statement on the signing of the "Iraq Resolution" of 16 October 2001, at , accessed on 17 October 2002. 268 Case Concerning Military and Paramilitary Activities in and against Nica- ragua, see note 264. 269 Cf. D. Webster's correspondence on 24 April 1841, printed in: M. Dixon/ R. McCorquodale, Cases and Materials on International Law, 2000 (562), also cf. Shaw, see note 84, 787-791. 270 Case Concerning Military and Paramilitary Activities in and against Nica- ragua 1986, 14 et seq. (103 para. 194), cf. also Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq. (245 para. 41). For a detailed account of the standing of the right of self-defence in legal provi-

sions on peace-keeping and peace-enforcement, see: N. Krisch, Selbstver- teidigung und kollektive Sicherheit, 2001. 271 Case Concerning Military and Paramilitary Activities in and against Nica- ragua, 14 et seq., (103 para. 195). 272 Shaw, see note 84, 789. z�3 A/RES/3314 (XXIX) of 14 December 1974, Annex, article 3 lit. (g). 274 Case Concerning Military and Paramilitary Activities in and against Nica- ragua, see note 264, "The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces", on the attribution of private acts of violence see the various con- stellations proposed by C. Krel3, according to the level of state involve- ment, Gewaltverbot und Selbstverteidigungsrecht nach der Satzung der Vereinten Nationen bei staatlicher Verwicklung in Gewaltakte Privater, 1995, 129 et seq. 275 C. Walter, "Zur v6lkerrechtlichen Beurteilung der Reaktion der USA auf die Terroranschlage auf New York und Washington", (not yet published) 4, 5. For a different opinion see C. Stahn, "International Law at a Cross- roads ? The Impact of September 11 ", ZaoRV 62 (2002), 183 et seq. (214), who interprets the Resolutions 1368 (2001) and 1373 (2001) as having clearly subsumed terrorist acts among armed attacks in the sense of Article 51 of the UN Charter.

276 Doc. S/946 of 7 October 2002; Keesing's Records of World Events 47 (2001), 44391; cf. the resolutions empowering the President to undertake measures against those responsible for the attacks, Pub.L. 107-40, Section 1 and 2 of 18 September 2001, see also D. Abramowitz, "The President, the Congress, and the Use of Force: Legal and Political Considerations in Authorizing Use of Force against International Terrorism,'' Harv. Int'l L. J. 43 (2002), 71 et seq. (74 et seq.). 277 New benchmarks for the attributability of terrorist acts by private actors have been developed by C. Tietje/ K. Nowrot, -V61kerrechtliche Aspekte militarischer Maf3nahmen gegen den internationalen Terrorismus", Neue Zeitscbriftfiir Wehrrecht 44 (2002), 1 et seq., these authors modify the es- sential criterion of effective control, thus, each state action, which is obvi- ously executed in support of terrorism and enables private actors to launch terrorist attacks, entails that the state will be held accountable for, if these attacks should meet the criteria of Article 51. 278 See note 260, 13, 15.

279 Ibid., 15. 280 Ibid., 14. 281 For a thorough account on the defence of state interests without an immi- nent threat, see D.W Bowett, Self Defence in International Law, 1958, 118 et seq.; also 1. Brownlie, International Law and the Use of Force by States, 1963, 257 et seq. (275 et seq.); on the state of emergency, see 376, then cf. R. Higgins, The Development of International Law through the Political Or- gans of the United Nations, 1963; T.M. Franck, Fairness in International Law and Institutions, 1995, 267; id., "When, if ever, may States deploy Military Force without Prior Security Council Authorization", Singapore Journal of International and Comparative Law 4 (2000), 362 et seq. (368 et seq., 373-376). 282 On the proposal to distinguish between interceptive self-defence, upon the imminent threat of an armed attack and anticipatory self-defence, in cases where an armed attack is foreseeable, cf. Y Dinstein, War, Aggression and Self-defence, 2001, 190, on the distinction between pre-emptive self- defence and preventive warfare. See Verdross/ Simma, see note 66, 288 (§ 471); H. Kelsen, The Law of the United Nations. A critical Analysis of its Fundamental Problems, 1950, 792; Shaw, see note 84, 790; L. Henkin, How

Nations Behave, 1979, 143; Jennings/ Watts, see note 56, 421 (127): "The better view is probably that while anticipatory self-defence is normally unlawful, it is not necessarily unlawful in all circumstances, the matter de- pending on the facts of the situation including in particular the seriousness of the threat and the degree to which pre-emptive action is really necessary and this is the only way of avoiding that serious threat, [...]."; Doehring, see note 53, item 764, considers a state's right to self-defence subject to re- straints only if the United Nations can provide better protection; P. Malanczuk, Akehurst's Modern Introduction to International Law, 1997, 314; W G. Sharp, "The Use of Armed Force Against Terrorism: American Hegemony or Impotence?", Chicago J. Int'l L. 1 (2000), 37 et seq. (46 et seq.); also G. Zimmer, Terrorismus und Volkerrecht, Militilrische Zwangs- anwendung, Selbstverteidigung und Schutz der internationalen Sicherheit, 1998, 54 et seq.; and M. Byers, "Terrorism, the Use of Force and Interna- tional Law after 11 September", ICLQ 52 (2002), 401 et seq. 283 For a very extensive account see W M. Reisman, "In Defense of World Public Order", AJIL 95 (2001), 833 et seq.; as well as Franck, see note 281, 368 et seq., see also for an encompassing argument in favour of pre-emptive self-defence in the case of Computer Attacks on Critical National Infra- structure, E.T. Jensen, "Computer Attacks on Critical National Infra- structure : A Use of Force Invoking the Right of Self Defense", Stanford J. Int'l L. 38 (2002), 207 et seq. (229 et seq. to 240); for a restrained position J.I. Charney, "The use of force against terrorism and international law", AJIL 95 (2001), 835 et seq.; also T.M. Franck, "Terrorism and the Right of Self-Defense", AJIL 95 (2001), 839 et seq.; C. Greenwood, "International Law and the War against Terrorism", Int'l Aff. 78 (2002), 301 et seq. (312 et seq.); S. D. Murphy, "Terrorism and the Concept of "Armed Attack"", Harv. Int'l L. J. 43 (2002), 41 et seq. (47-50); H.H. Koh, "The Spirit of Laws", Harv. Int'l L. J. 43 (2002), 23 et seq. (27 et seq).; also the different opinions in the ASIL-Insights, at which contains contributions by F L. Kirgis, R. Wedgwood, J. Cerone, A. Montalvo, J.J. Paust, W Hall, G.H. Fox, S. Mahmoudi; for a well differen- tiating account on the functions of the ICC in the war against terrorism, see A.P. Rubin, "Legal Response to Terror: An International Criminal Court?", Harv. Int'l L. J. 43 (2002), 65 et seq. (69), also cf. the earlier text by M. Reisman, "International Legal Responses to Terrorism", Houston Journal of International Law 22 (1999), 3 et seq. 284 For a detailed account of the legal consequences of 11 September 2001, see C. Tomuschat, "Der 11. September 2001 und seine rechtlichen Konsequen-

zen", EuGRZ 28 (2002), 535 et seq., and on the issue of self-defence 540; A. Cassese, "Terrorism is also Disrupting some Crucial Categories of Interna- tional Law", EJIL 12 (2001), 993 et seq. (995 et seq.), on the challenge to international law posed by counter-terrorism after 11 September 2001; see, Y. Sandoz, "Lutte contre le terrorisme et droit international: risque et op- portunites", SZIER 3 (2002), 319 et seq. (335); S. Oeter, "Terrorismus - ein volkerrechtliches Verbrechen? Zur Frage der Unterstellung terroristi- scher Akte unter die internationale Strafgerichtsbarkeit", Die Friedens- warte 76 (2001), 11 et seq. (23 et seq.); T. Bruha/ M. Bortfeld, "Terrorismus und Selbstverteidigung", Vereinte Nationen 49 (2001), 161 et seq. (162- 166) ; J. Delbruck, "The Fight Against Global Terrorism: Self-Defence or Collective Security as International Police Action? Some Comments on the International Legal Implications of the 'War against Terrorism'", GYIL 44 (2001), 9 et seq. (17 et seq.); C. Walter, see note 275, 4-7; M. Krajewski, "Terroranschlage in den USA und Krieg gegen Afghanistan", Kritische Ju- stiz (2001), 363 et seq. (377 et seq.), also see the contributions by A. Pellet at bearing the title "No, this is not 'War'"; G. Gaja, "In What Sense was there an "Armed Attack"?", Za6RV 62 (2002), 183 et seq. (216 et seq.); F. Megret, "'War'? Legal Semantics and the Move to Violence", EJIL 13 (2002), 361 et seq. (392 et seq.), for a more differentiating account see R. Wolfrum, "Irak - eine Krise auch fur das System der kollektiven Sicherheit", 2003, at http://www.mpiv-, also E. Denninger, "Anmerkungen zum Ter- rorismusbekampfungsgesetz", Aus Pol. Fr Zeitgesch.l0 (2002), 22 et seq. (24 et seq.). 285 SCOR 11 th Year 1956, 748 Mtg of 30 October 1956. 286 SCOR 1 lath Year 1956, 748 Mtg of 30 October 1956. 287 SCOR llth Year, 748 Mtg of 30 October 1956, the United States, 3 (No. 11), the Soviet Union, 5 (No. 29), Australia, 6 (No. 35), Iran, 5 (No. 27), Yugoslavia, 4 (No. 22 et seq.).

288 Doc. S/3710 of 30 October 1956. 289 SCOR 11th Year, 750 Mtg of 30 October 1956, 5 (No. 23), Text of the Resolution at SCOR 1 lath Year, 729 Mtg of 26 June 1956. 290 SCOR 1 lath Year, 752 Mtg of 2 November 1956. 291 GAOR 1st Emergency Special Sess., 562 Plenary Mtg of 1 November 1956, 13, 34, Doc. A/PV.562. 292 See the Proclamation of the President, printed in: AJIL 57 (1966), 512 et seq. 293 Shaw, see note 84, 789. 294 On the position of Israel cf. SCOR 22nd Year, 1342 Mtg of 24 May 1967, 7, (Nos. 56-68) and SCOR 22nd Year, 1343 Mtg of 29 May 1967, 15 (No. 179); S/RES/233 (1967) of 6 June 1967, S/RES/234 (1967) of 7 June 1967, S/RES/235 (1967) of 9 June 1967, S/RES/237 (1967) of 14 June 1967, S/RES/240 (1967) of 25 October 1967.

295 Shaw, see note 84, 789. 296 Shaw, see note 84, 789. 297 SCOR 35th Year, 2250 Mtg of 15 October 1980, or for a similar position 3, (No. 21), 5 (No. 39), SCOR 35th Year, 2251 Mtg of 17 October 1980, 6 (No. 49). 298 SCOR 36th Year, 2280 Mtg of 12 June 1981, 8 et seq. (Nos. 58 f, 68), 10 (Nos. 86-92), a particular spin to the Israeli position has been detected by J.A. Frowein, "Der Terrorismus als Herausforderung fur das V61kerrecht", Speech for the Siemens-Foundation on 3 July 2002, (unpublished manu- script), 16. 299 See the Letter of Israel's Permanent Representative of 8 June 1981, Doc. S/14510 of 8 June 1984. 300 UNYB 1981, 277. 3ot Doc. S/14576 of 29 June 1981. 302 On the debates in the Security Council cf. SCOR 2288 Mtg, Vote 14 (No. 151), for a condemnation of the violence, see letter dated 9 June 1981 from

the Permanent Representative of Egypt see Doc. A/36/314-S/14513 of 10 June 1984, by Japan Doc. S/14512 of 9 June 1981, by Pakistan Doc. S/14517 of 11 June 1981, by India Doc. S/14523 of 12 June 1981, by Indo- nesia Doc. S/14536 of 15 June 1981. 303 UNYB 1981, 277. 304 S/RES/487 (1981) of 19 June1981, item 1. 305 A/RES/36/27 of 13 November 1981, item 8. 306 See telegram dated 12 June 1981 from the Director General of the IAEA to the President of the Security Council, Doc. S/14532 of 15 June 1981. Doc. S/17990 of 14 April 1986.

308 M.N. Leich, "Contemporary Practice of the United States relating to In- ternational Law", AJIL 80 (1986), 612 et seq. (633). 309 The position of the Soviet Union is contained in Doc. S/17999 of 15 April 1986, of India in Doc. S/17996 of 15 April 1986, cf. the Annex of the Communique of the non-aligned states, Ghana in Doc. S/18002 of 16 April 1986, Nicaragua in Doc. S/18004 of 16 April 1986, Burundi in Doc. S/18006 of 16 April 1986. 3io Leich, see note 308, 612, 632 et seq. 311 Leich, see note 308, 633. 312 Also cf. G.F. Intoccia, "American Bombing of Libya: An International Le- gal Analysis", Case W Res. J. Int'l L. 19 (1987), 177 et seq. (180 and 189).

313 Case Concerning Military and Paramilitary Activities in and against Nica- ragua, ICJ Reports 1986, 14 et seq., (110 para. 210).

314 Legality of the Threat or Use of Nuclear Weapons, 1CJ Reports 1996, 226 et seq. (246 et seq. para. 48). 315 CENTCOM Operation Iraqi Freedom Briefing on 22 April 2003, at, accessed on 22 May 2003. 316 J. Habermas, "Was bedeutet der Denkmalsturz?", Frankfurter Allgemeine Zeitung, 17 April 2003, 33. 3l Cf. Powell's speech at the Security Council of 5 February 2003, Doc. S/PV.4701, is in accordance with the draft of the "USA Patriot Act II" of 7

January 2003, especially the findings in Sec. 1302, which do address the situation in Iraq. 31s S/RES/1441 (2002) of 8 November 2002. 319 S/RES/661 (1990) of 6 August 1990, S/RES/678 (1990) of 29 November 1990, S/RES/687 (1991) of 3 April 1991, S/RES/1284 (1999) of 17 Decem- ber 1999. 3zo S/RES/1441 (2002) of 8 November 2002, item 13 of the operative section (based on Chapter VII of the UN Charter), also see Powell, see note 317: "Resolution 1441 (2002) was not dealing with an innocent party, but with a regime that the Council had repeatedly convicted over the years. Resolu- tion 1441 (2002) gave Iraq one last chance to come into compliance or to face serious consequences.", see also the statement given by Powell at the Security Council on 14 February 2003, , ac- cessed 17 February 2003. 3zt S/RES/687 (1991) of 3 April 1991, item 33. 3zz Cf. M. Weller, "The Legality of the Threat or Use of Force against Iraq", at , accessed on 30 July 2002; R. Wedgwood, "The Enforcement of Security Council Resolution 687: The threat of Force against Iraq's Weapons of Mass Destruction", AJIL 92 (1998), 724 et seq.

323 This is consistent with the "National Strategy to Combat Weapons of Mass Destruction", of December 2002, on the obligations of Iraq see Wolfrum, see note 284. 324 Powell speech to the Security Council, see note 320; Negroponte, Doc. S/PV4726 of 27 March 2003: "The military campaign in Iraq is not a war against the people of Iraq, but rather against a regime that has denied the will of the international community for more an 12 years. [..] Resolution 687 (1991) imposed a series of obligations on Iraq [..] . Resolution 1441 (2002) explicitly found Iraq in continuing material breach". 325 Also cf. the Report by El Bahradei, the Status of Nuclear Inspections in Iraq of 27 January 2003, at , accessed on 28 January 2003, Press Release SC/7644 of 27 January 2003 and the IAEA Report Doc. S/2003/95, Annex, of 27 January 2003. 326 G. Nolte, "Gewalteinsatz mug Regeln unterliegen", Handelsblatt, 24 March 2003; Wolfrum, see note 284, 5.

3v Cf. the debates at the Security Council of 5 February 2003, Doc. S/PV.4701, and of 29 March 2003, Doc. S/PV.4726 the Letter of the Perma- nent Representatives of France, Germany and Russia to the Chairman of the Security Council of 24 February 2003, Doc. S/2003/214, the Speech by Minister of Foreign Affairs Fischer at the Security Council of 20 February 2003, at , accessed on 21 January 2003; the Letter of the Permanent Representative of Iraq to the United Nations of 31 January 2003, Doc. S/2003/131; the Press Release Doc. SC/7665 of 18 February 2003. 32e Doc. S/946 of 7 October 2001; Greenwood, see note 283, 310.

329 The international agreements on the combating of certain terrorist acts also focus on precisely defined felonies, which have to be prosecuted and pe- nalized by the signatories, see Wolfrum, see note 53, 853 et seq. 33o On Sudan cf. S/RES/1044 (1996) of 31 January 1996, S/RES/1054 (1996) of 26 April 1996, S/RES/1070 (1996) of 16 August 1996, on Afghanistan S/RES/1214 (1998) of 8 December 1998, S/RES/1267 (1999) of 15 October 1999, S/RES/1333 (2000) of 19 December 2000. 33i The first explicit formulation of this is found in S/RES/748 (1992) of 31 March 1992. 332 On the categorization of terrorism as a threat to international peace, cf. J.D. Aston, "Die Bekampfung abstrakter Gefahren fur den Weltfrieden durch legislative MaQnahmen des Sicherheitsrates - Resolution 1373 (2001) im Kontext", ZaoRV 62 (2002), 257 et seq. (277 et seq.).

333 See V. Roben, "The Role of international Conventions and general Inter- national Law in the Fight against International Terrorism", at . 334 Cf. C. Walter, "The Notion of Terrorism in National and International Law", at . 335 On attempts of a definition cf. A.C. Brown, "Hard Cases Make Bad Laws: An Analysis of State-Sponsored Terrorism and its Regulation under Inter- national Law", Journal of l4rmed Conflict Law 2 (1997), 135 et seq. (136 et seq.). 336 The most recent instance is to be found in S/RES/1373 (2001) of 28 Sep- tember 2001, item 2, references are also contained in A/RES/49/60 of 9 De- cember 1994, Annex, item 3, A/RES/51/210 of 17 December 1996, A/RES/54/110 of 9 December 2000, also cf. R.A. Friedlander/ T. Marauhn, "Terrorism", in: R. Bernhardt (ed.), EPIL IV (2000), 845 et seq. (850 et seq.). 337 The same applies to the assessment of state terrorism as a threat. Initially, formulations would regularly stress at countering terrorism, including the forms of state activities in this domain, were vital to the preservation of in- ternational peace and security (S/RES/1054 (1996) of 26 April 1996, S/RES/1189 (1998) of 13 August 1998). More recent resolutions of the Se- curity Council clarify that international terrorism can pose a threat to in- ternational peace and security. On 12 September 2001 it publicized the statement that the attacks of "11 September" embodied a threat to interna- tional peace and security, as did any other terrorist act. See S/RES/1368 (2001) of 12 September 2001, item 1. 33s Charney, see note 283, 835, 837.

339 S/RES/731 (1992) of 21 Januaryl992, S/RES/748 (1992) of 31 Marchl992. 3ao S/RES/748 (1993) of 31 March 1993, S/RES/ 1189 (1998) of 13 August 1998, S/RES/1371 (2001) of 26 September 2001. 34i S/RES/1044 (1996) of 31 January 1996, S/RES/1064 (1996) of 11 July 1996. 342 S/RES/1333 (2000) of 19 December 2000. 3a3 S/RES/1267 (1999) of 15 October 1999, as well as S/RES/1333 (2000) of 19 December 2000, a document not mentioning the Taliban is S/RES/1269 (1999) of 19 Octoberl999, which strives to: "deny those who plan, finance or commit terrorist acts safe havens by ensuring their apprehension and prosecution or extradition". 344 S/RES/1333 (2000) of 19 December 2000: "Not[es] that the Taliban benefits directly from the cultivation of illicit opium by imposing a tax on its pro- duction and indirectly benefits from the processing and trafficking of such opium, and recognizing that these substantial resources strengthen the Taliban's capacity to harbour terrorists."

3as Doc. S/PV.4370 of 12 September 2001. 3a6 S/RES/1368 (2001) of 12 September 2001. 3a� S/RES/1373 (2001) of 28 September 2001. 348 Brown, see note 335, 135, 144 et seq. concludes that there is a "Legal Re- gime Governing States Sponsoring Terrorism" contained in Resolutions and Declarations, which strives to regulate unilateral measures outside the United Nations as well, also cf. Charney, see note 283, 835, 837.

3a9 Also cf. Franck, see note 283, 839 et seq.

350 On the options outside the UN Charter cf. D.J. Scheffer, "Staying the Course with the International Criminal Court", Cornell Int'l L. Rev. 35 (2002), 47 et seq. (99).


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