¹ U.S. Sup Ct Case No. 02-102, decided 26 June 2003, judgment available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=02-102#opinion1 (last visited 14 July 2003).Google Scholar

² I.C.J. Case No. 129 – Republic of Congo v. France, Order on the Request for the indication of a provisional measure, 17 June 2003, order available online at http://www.icj-cij.org/icjwww/idocket/icof/icoforder/icof_iorder_20030617.PDF (last visited 14 July 2003).Google Scholar

³ Statute of the International Court of Justice, 26 June 1945, UNCIO Vol. 15, pp. 355 et seq., Art. 34 (2): “The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.”Google Scholar

⁴ International Court of Justice, Rules of Court (1978) as amended on 5 December 2000, text available online at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicrulesofcourt_20001205.html (last visited 21 July 2003). Art. 62: “1. The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose. 2. The Court may, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings.”Google Scholar

⁵ I.C.J. Case No. 95 – Order – Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1 February 1995, I.C.J. Rep. 1996, 66 (also known as the WHO Advisory Opinion).Google Scholar

⁶ U.N. General Assembly Resolution 217 A (III), 10 December 1948.Google Scholar

⁷ United Nations Security Council Resolution 1373 (2001), 28 September 2001.Google Scholar

⁸ Charter of the United Nations, 26 June 1945, Yearbook of the United Nations 1969, 953, Art. 108: “Amendments to the present Charter shall come into force for all members of the United Nations when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council.”Google Scholar

⁹ Treaty establishing the European Union, consolidated version as amended by the Treaty of Nice (O.J. 2001 C 80) and published in the Official Journal (O.J.) of the EC (since the entry into force of the Treaty of Nice on 1 February 2003: “the Official Journal of the European Union”), O.J. 2002 C 325, on 24 December 2002. Art. 24: “1. When it is necessary to conclude an agreement with one or more States or international organizations in implementation of this title, the Council may authorize the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be concluded by the Council on a recommendation from the Presidency. 2. The Council shall act unanimously when the agreement covers an issue for which unanimity is required for the adoption of internal decisions. 3. When the agreement is envisaged in order to implement a joint action or common position, the Council shall act by a qualified majority in accordance with Article 23(2). 4. The provisions of this Article shall also apply to matters falling under Title VI. When the agreement covers an issue for which a qualified majority is required for the adoption of internal decisions or measures, the Council shall act by a qualified majority in accordance with Article 34(3). 5. No agreement shall be binding on a Member State whose representative in the Council states that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall nevertheless apply provisionally. 6. Agreements concluded under the conditions set out by this Article shall be binding on the institutions of the Union.”Google Scholar

¹⁰ 28 U.S.C. § 1530: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”Google Scholar

¹¹ Wiwa v. Royal Dutch Petroleum Co. (a.k.a. Shell or Royal Dutch Shell), 226 F.3d 88 (2d Cir. (N.Y.) 2000); Slip Copy 2002 WL 319887 (S.D.N.Y., Feb. 28, 2002).Google Scholar

¹² ibid.Google Scholar

¹³ ibid.Google Scholar

¹⁴ Gulf Oil Corp. v. Gilbert, 330 US 501, 67 S Ct 839 (1947).Google Scholar

¹⁵ Wiwa v. Royal Dutch Petroleum Co. (a.k.a. Shell or Royal Dutch Shell), cf. fn. 11.Google Scholar

¹⁶ Doe v. Unocal, (00-56603 / 00-56628 / 00-57195 / 00-57197), currently pending at the U.S. CA 9^th Cir., Three-Judge Panel Opinion: 2002 WL 31063976 (9th Cir. Sept. 18, 2002), Order Taking Case En Banc: 2003 WL 359787 (9th Cir. Feb. 14, 2003). For more information on the current status of the case see the Website of the U.S. Court of Appeals for the 9^th Circuit at http://www.ca9.uscourts.gov/ca9/Documents.nsf/news/26604b492ab620e58825685d00537e33?OpenDocument (last visited 22 July 2003).Google Scholar

¹⁷ On this currently pending case cf. Newman / Zaslowsky, The Alien Tort Claims Act: How Far Will It Go ?, in: International Litigation and Arbitration Alert, Vol. 2, Issue 2, January 2003, pp. 39 et seq., at pp. 40 et seq.Google Scholar

¹⁸ Other recent ATCA cases include inter alia Aguinda v. Texaco, Inc., 303 F.3d 470 (2nd Cir.(N.Y.) Aug 16, 2002) (Jota v. Texaco companion case); Jama v. U.S. I.N.S., 22 F.Supp.2d 353 (D.N.J. 1998) – the judgment in this case is available online at http://www.law.berkeley.edu/faculty/ddcaron/Documents/US_Cases/USDCt_1998_Jama_v_INS_DNJ.rtf (last visited 22 July 2003); Sarei v. Rio Tinto, 221 F.Supp.2d 1116 (C.D.Cal. Jul 09, 2002); Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. (N.Y.) 2001) and Beanal v. Freeport-McMoran Inc., 197 F.3d 161 (5th Cir.(La.) Nov 29, 1999).Google Scholar

¹⁹ Statute of the International Court of Justice (cf. fn. 3), Art. 38: “(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law. […]”Google Scholar

²⁰ Nuremberg Military Tribunal, U.S. v. Krauch et al. (I.G. Farben Case), U.S. v. Flick et al., U.S. v. Krupp et al.; General Tribunal of the Military Government of the French Zone of Occupation in Germany, France v. Roechling.Google Scholar

²¹ The Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 CV 9882, AGS, SDNY filed Nov. 8, 2001.Google Scholar

²² Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), 30 June 1980, on remand, 577 F.Supp. 860 (E.D.N.Y. 1984), 10 January 1984.Google Scholar

²³ National Security Strategy of the United States of America – September 2002, available online at http://www.whitehouse.gov/nsc/nss.pdf (last visited 14 July 2003).Google Scholar

²⁴ O'Connell, , The Myth of Preemptive Self-Defense, American Society of International Law Presidential Task Force on Terrorism, ASIL Task Force Papers, August 2002, p. 5. Available online at http://www.asil.org/taskforce/oconnell.pdf (last visited 21 July 2003).Google Scholar

²⁵ I.C.J. Case No. 2 – Case concerning military and paramilitary activities in Nicaragua, Nicaragua v. United States, Judgment, 27 June 1986, I.C.J. Rep. 1986, 14.Google Scholar

²⁶ Charter of the United Nations (cf. fn. 8), Art. 103: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”Google Scholar

²⁷ Reservation of 28 January 1998 on Article 1 para. 4 and Article 96 of the First Additional Protocol to the 1977 Geneva Conventions (extended to apply also with respect to Anguilla; Bermuda; the British Antarctic Territory; the British Indian Ocean Territory; the British Virgin Islands; the Cayman Islands; the Falkland Islands; Montserrat; Pitcairn; Henderson; the Ducie and Oeno Islands; St Helena and Dependencies; South Georgia and the South Sandwich Islands; the Sovereign Base Areas of Akrotiri and Dhekelia as well as the Turks and Caicos Islands on 2 July 2002): “[…] It is the understanding of the United Kingdom that the term “armed conflict” of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation. The United Kingdom will not, in relation to any situation in which it is itself involved, consider itself bound in consequence of any declaration purporting to be made under paragraph 3 of Article 96 unless the United Kingdom shall have expressly recognised that it has been made by a body which is genuinely an authority representing a people engaged in an armed conflict of the type to which Article 1, paragraph 4, applies.[…]” - Corrected Letter of 28 January 1998 sent to the Swiss Government by Christopher Hulse, HM Ambassador of the United Kingdom. cf. http://www.icrc.org/ihl.nsf/db8c9c8d3ba9d16f41256739003e6371/0a9e03f0f2ee757cc1256402003fb6d2?OpenDocument (last visited 21 July 2003).Google Scholar

²⁸ Case of the Smelter at Trail (B.C.), United States v. Canada, 3 RIAA (1941), pp.1905 et seq.Google Scholar

²⁹ ibid., at pp. 1965 et seq.Google Scholar

³⁰ Weeramantry, Judge, in: Nuclear Test Case 1995, New Zealand v. France, I.C.J. Rep. 1995, 288.Google Scholar

³¹ Stockholm Declaration on the Human Environment, Report of the UN Conference on the Human Environment, 11 ILM (1972) 1416, Principle 21: “States have, in accordance with the Charter of the United Nations and the principle of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. […]”Google Scholar

³² Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, 31 ILM (1992) 876, Principle 2 is almost identical to principle 21 of the Stockholm Declaration and reads as follows: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”Google Scholar

³³ Case of the Smelter at Trail (B.C.), United States v. Canada, 3 RIAA (1941), pp.1905 et seq., at pp. 1965 et seq.; Princple 21 Stockholm Declaration; Principle 2 Rio Declaration.Google Scholar

³⁴ So called active personality principle, cf. e.g. § 7 (2) of the German Criminal Code (Strafgesetzbuch -StGB) - “[…] (2) For other crimes committed outside Germany, German Criminal Law applies if the act is punishable by Criminal Law according to the laws of the location where it has been committed or if no Criminal Law is applicable at this location and provided that the person having committed the act in question 1.) was a German citizen at that time or has become a German citizen afterwards or 2.) was not a German citizen at the time in question, yet was apprehended in Germany and, despite the Law on Extradition allowing for his or her extradition after the act committed, is not extradited because a request for extradition has not been made or has been denied or because extradition is impossible.” (unofficial translation by the author).Google Scholar

³⁵ UN GA Res. 2625 (XXV), 24 October 1970 - Declaration on principles of international law friendly relations and cooperation among states in accordance with the Charter of the United Nations.Google Scholar

³⁶ Charter of the United Nations, Art. 33 (1): “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”Google Scholar

³⁷ cf. Art. 108 UN Charter (fn. 8).Google Scholar

³⁸ Charter of the United Nations (cf. fn. 8), Art. 23, sentence 2: “[…] The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council.[…]”. - At the time being the People's Republic of China holds the seat previously held by the Republic of China (Taiwan) and the Russian Federation holds the formerly Soviet seat.Google Scholar

³⁹ Charter of the United Nations (cf. fn. 8), Art. 27: “1. Each member of the Security Council shall have one vote. 2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members. 3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.”Google Scholar

⁴⁰ UN SC Res. 1363 (2001) of 20 July 2001, available online at http://ods-dds-ny.un.org/doc/UNDOC/GEN/N01/473/97/PDF/N0147397.pdf?OpenElement (last visited 21 July 2003).Google Scholar

⁴¹ UN SC Res. 1267 (1999) of 15 October 1999, available online at http://ods-dds-ny.un.org/doc/UNDOC/GEN/N99/300/44/PDF/N9930044.pdf?OpenElement (last visited 21 July 2003).Google Scholar

⁴² Charter of the United Nations (cf. fn. 8), Art. 41: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its discussions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”Google Scholar

⁴³ Executive Order 13224 of 24 September 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, available online at http://usinfo.state.gov/topical/pol/terror/01092408.htm (last visited 21 July 2003).Google Scholar

⁴⁴ 50 U.S.C. 1701 et seq.Google Scholar

⁴⁵ 50 U.S.C. 1601 et seq.Google Scholar

⁴⁶ 22 U.S.C. 287c.Google Scholar

⁴⁷ Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) of 24 October 2001, H.R. 3162, text available online at http://www.fincen.gov/hr3162.pdf (last visited 21 July 2003).Google Scholar

⁴⁸ 50 U.S.C. 1701 et seq.Google Scholar

⁴⁹ 8 U.S.C., sec. 219 - Designation of Foreign Terrorist Organizations: “(a) Designation - (1) in general -The Secretary is authorized to designate an organization as a foreign terrorist organization in accordance with this subsection if the Secretary finds that – (A) the organization is a foreign organization; (B) the organization engages in terrorist activity (as defined in section 212(a)(3)(B)); and (C) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States. (2) Procedure […] (C) Freezing of Assets - Upon notification under paragraph (2), the Secretary of the Treasury may require United States financial institutions possessing or controlling any assets of any foreign organization included in the notification to block all financial transactions involving those assets until further directive from either the Secretary of the Treasury, Act of Congress, or order of court.”Google Scholar

⁵⁰ cf. fn. 43.Google Scholar

⁵¹ cf. fn. 26.Google Scholar

⁵² International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, available online at http://untreaty.un.org/English/Terrorism/Conv12.pdf (last visited 21 July 2003), Art. 2 (1), albeit only indirectly, provides the closest thing to a universally accepted definition of terrorism: “1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”Google Scholar

⁵³ As has been the case e.g. with regard to Yemen: After Yemen had announced it would not support a U.S. bid for a UN Security Council threatening the use of force against Iraq in the context of its occupation of Kuwait in 1990, some US$ 70 million in U.S. foreign aid which were supposed to go to Yemen were withheld, making it, in the words of one official in the administration of Pres. Bush sr., “the most expensive ‘no’ in history”.Google Scholar

⁵⁴ Charter of the United Nations, cf. fn. 8, Art. 2 (7): “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”Google Scholar