Ever since its enactment, Sec. 39 para. 1 of the South African Constitution has fascinated lawyers with an inclination for comparative law. Subsections (b) and (c) of this provision compels the South African judiciary to consider international law and enables it to consider foreign law in the interpretation of any of the fundamental rights espoused by the Constitution. Sec. 35 para. 1 of the Transitional (Interim) Constitution, which preceded the 1996 Constitution, contained a similar provision. Meanwhile, it has become a feature of the South African Constitutional Court's decision-making process to work comparatively in the solution of many of the issues brought before it. Thus, the new Constitution, apart from introducing a new constitutional and political order in South Africa, gave rise to renewed interest in comparative law and the reception of foreign legal principles.

The idea of a European constitution has been a constant refrain in academic and political discourse on European integration, and has recently gathered considerable momentum due to the intervention of politicians and the media and its explicit institutional recognition in the Laeken Declaration on the Future of the European Union. If much of the debate is characterised, tainted even, with a top-down logic of legal-constitutional engineering - a logic which arguably flows from the elitist political roots and philosophy of the project itself - there is nevertheless a growing tendency to examine the theoretical alternatives through which a more open and inclusive constitutional process might be understood. There is considerable irony in an endeavour to ‘democratise’ a postnational polity through a constitutional settlement, brought out when the theoretical underpinnings of the constitutional movement are laid bare, and the alternatives to a hierarchical or legocentric understanding of constitutionalism's reach are examined. The purpose of this paper is to suggest some of the possible pitfalls in a constitutionalist position fixated on a hierarchical or federal arrangement, and highlight some theoretical alternatives which appear accommodating, even demanding, of a more bottom-up approach and conducive to a radical inclusion of civil society, both organised and disorganised, in the structures of constitutional construction and negotiation.

It seems to be beyond any reasonable doubt that the events of 11th September 2001, and the subsequent responses thereto, will have profound and far-reaching effects on the discipline of public international law. What seems equally certain is that international lawyers in general, and particularly those schooled in the “European” approach to the discipline, will view these developments with varying degrees of gloom. In this article, however, I want to suggest that, in one small but fundamentally important area, the terrorist attacks may arguably have a positive effect on the progressive development of international legal norms.

On 20 March 2002, the XIIth Senate of the Bundesgerichtshof (BGH - Federal Court of Justice), the highest appeal court in civil law matters, was called to decide a case in which a separated husband had made an application to change a periodical maintenance payment order, arguing mainly that his wife no longer living with him had a close relationship with another man and that it was therefore an undue hardship to him, in the sense of para. 1597 no. 7 Bürgerliches Gesetzbuch (BGB - German Civil Code), to continue periodical maintenance payments at all. The separated wife argued that she did not cohabit with the man and had no intimate sexual relationship with him, since he was homosexual, that therefore no marriage-like relationship existed and maintenance payments should continue unchanged, since this obligation was no undue hardship towards the obliged spouse. The Federal Court of Justice judged in the last instance that the decision of the lower court, which had reduced the maintenance obligation, was correct, since the facts showed that a marriage-like relationship between the separated wife and her close friend existed; whether or not they had intimate sexual relations did not matter.

Governance in Afghanistan is a complex matter. Afghanistan today is not only the territory of Pashtuns, Tajiks, Northern Alliances, Taliban and Al Qaeda, all of whom are competing for power. Afghanistan is also a social field of other political actors like Germany, the UK, the US, the UN and of the “Six plus Two” group. Is it governance without government?

Since 1994, the United States of America have been warning of a new threat posed by so-called ‘rogue states'. (1) Following 11th September 2001, a number of these so-called rogue states have been targeted as responsible for the attacks or as a result of fears that they are plan-ning further terrorist acts. The classification of certain states by degrading terminology by the United States not only seems to be fully justifiable vis-à-vis the realisation of an emerging danger; furthermore, it could be seen as movement within the international community to-wards the identification of states which threaten international security. Thus, it is important to look behind the terms: which states fall into the category of rogue states and what consequences could follow for public international law from such classification?

Ahmad Omar Saeed Sheikh. A Britishborn Muslim arrested by Indian authorities in connection with the kidnapping of four British and American backpackers in Kashmir in 1994. Released in exchange for the passengers and crew of Indian Airlines flight IC 814 hijacked to Kandahar, Afghanistan on December 25, 1999. Suspected of al-Qaida links and sentenced to death by a court in Pakistan for the kidnap and murder of U.S. journalist Daniel Pearl in January 2002. India, U.S.A. and the U.K. – three countries caught up in a web of Islamic terrorist links and activities.

Established in the wake of the Nice Treaty debacle by the December 2001 European Council Laeken Summit, the Convention on the future of Europe is a radical political experiment. The Convention has been meeting in Brussels under the chairmanship of ex-heads of state Valéry Giscard d'Estaing, Giuliano Amato and Jean-Luc Dehaene since February this year. It combines a novel political formula with an immense open-ended remit. Its 105 members represent the governments and parliaments of the EU15 and of the 13 candidate accession states, and the European Parliament. For the first time national parliaments and the European Parliament are sitting jointly with governments. This is also the first occasion on which the accession states have participated as equals in the EU (technically they are non-voting, but consensus is the aim). The Convention takes its mandate from the Laeken Declaration, which proclaims that “the Union stands at a cross-roads.” The complexity, juxtaposition and inter-relation of the questions which the Declaration raises, and the urgent historic decisions which accompany these – as well as explicit expectations from many quarters – earn the Convention the label ‘constitutional'. Media and academic comment alike favour comparisons with the 1787 Philadelphia constitutional convention – neither a recent nor a local precedent (but one with obvious additional appeal for the Euro-federalist tendency). A more empirical reference is the Convention that drafted the European Charter of Fundamental Rights. For a recent survey of the Convention's progress see The Economist.

The destruction of the World Trade Center and a wing of the Pentagon by three highjacked civilian airliners and the crash of a fourth in Pennsylvania on September 11, 2001 constitute without a doubt the high point of terrorist attacks on the United States to date. The terrorists’ methods, their destructive force and the attacks’ economic and political effects are all without precedent. After September 11, the organisation responsible was quickly identified, namely a terrorist group based in Afghanistan, Al Qaeda, headed by a Saudi expatriate, Osama bin Laden. After a request for his extradition was denied by the ruling Taliban, the United States and the United Kingdom conducted airstrikes against targets in Afghanistan beginning on October 7. As soon as late November 2001, the Taliban's fate was sealed. The uninterrupted bombardment of the US Air Force helped the Northern Alliance gain decisive ground in its campaign against the regime. On December 15, 2001, the various Afghan opposition groups signed a treaty on the Petersberg near Bonn, Germany, that established an interim government. The government's establishment put an end to the Taliban's rule, but it did not put an end to international terrorism with its various goals and interwoven structures.

The White House statement of February 7, 2002, according to which the Taliban and Al-Qaeda members detained in Camp X-Ray in Guantanamo Bay following the September 11, 2001, events had no right to prisoner of war (POW) status but were merely ‘unlawful combatants’ had broad repercussions in the public opinion as well as among legal scholars. The debate focused on the legal status and treatment of the persons held in Guantanamo Bay mainly in light of the Third Geneva Convention of 1949 relative to the Treatment of Prisoners of War. Comparatively little attention has been paid to the treatment due to the detainees in light of the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism issued by the US President on November 13, 2001 (Military Order). Also the treatment to which the detainees are entitled by virtue of the Fourth Geneva Convention of 1949 relative to the Protection of Civilians in Time of War has been largely overlooked. This brief paper intends to contribute to remedying such lacunae but will be limited to an analysis of the provisions of the 1949 Geneva Conventions in light of the events of September 11th without reference to previous practice.