1 Beck, Ulrich, ‘The Terrorist Threat: World Risk Society Revisited’, Theory, Culture & Society, 19 (2002), pp. 39–55 at p. 47CrossRefGoogle Scholar . For a criticism of his application of zombie categories, see Dean, Mitchell, Governing Societies: Political Perspectives on Domestic and International Rule (Maidenhead: Open University Press, 2007)Google Scholar .

2 Beck, ‘The Terrorist Threat’, p. 48.

3 Ibid., pp. 48, 50.

4 Aradau, Claudia and Munster, Rens Van, ‘Taming the Future: The Dispositif of Risk in the War on Terror’, in Amoore, Louise and Goede, Marieke de (eds), Risk and the War on Terror (London and New York: Routledge, 2008), pp. 23–40Google Scholar . See also Agamben, Giorgio, State of Exception (Chicago: University of Chicago Press, 2005)CrossRefGoogle Scholar ; Munster, Rens van, ‘The War on Terrorism: When the Exception Becomes the Rule’, International Journal for the Semiotics of Law, 17 (2004), pp. 141–153CrossRefGoogle Scholar ; Huysmans, Jef, ‘International Politics of Insecurity: Normativity, Inwardness and the Exception’, Security Dialogue, 37 (2006), pp. 11–29CrossRefGoogle Scholar ; Walker, R. B. J., ‘Lines of Insecurity: International, Imperial, Exceptional’, Security Dialogue, 37 (2006), pp. 65–82CrossRefGoogle Scholar .

5 These practices rather fit Beck's description of surveillance states, see Beck, ‘The Terrorist Threat’, p. 49.

6 For insightful analyses of the transformation (rather than suspension) of law in Guantanamo Bay as an exceptional space, see Johns, Fleur, ‘Guantanamo Bay and the Annihilation of the Exception’, European Journal of International Law, 16 (2005), pp. 613–635CrossRefGoogle Scholar ; and Aradau, Claudia, ‘Law Transformed: Guantanamo and the “Other” Exception’, Third World Quarterly, 28 (2007), pp. 489–501CrossRefGoogle Scholar .

7 Krasner, Stephen D., Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999)CrossRefGoogle Scholar . See also the treatment of the International Court of Justice in the Nicaragua case (Nicaragua vs. US of America), Merits, ICJ Reports, 1986.

8 Berman, Nathaniel, ‘Sovereignty in Abeyance, Self-Determination and International Law’, Wisconsin International Law Journal, 7 (1986), pp. 390–443Google Scholar .

9 As quoted in Broomhall, Bruce, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003), p. 56Google Scholar .

10 Werner, Wouter G., ‘State Sovereignty and International Legal Discourse’, in Dekker, Ige F. and Werner, Werner G. (eds), Governance and International Legal Theory (Leiden: Martinus Nijhoff, 2004), pp. 125–157CrossRefGoogle Scholar .

11 For an analysis see Neff, Stephen, War and the Law of Nations. A General History (Cambridge: Cambridge University Press, 2005)CrossRefGoogle Scholar .

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13 Schmitt, Nomos of the Earth.

14 Nijman, Janne, The Concept of International Legal Personality. An Inquiry into the History and Theory of International Law (The Hague: T. C. M. Asser, 2004), p. 499Google Scholar , emphasis added.

15 Beck's argument relies on a similar reading of sovereignty as autonomy, see Beck, ‘The Terrorist Threat’.

16 As the Huber put it: ‘Territorial sovereignty … involves the exclusive right to display the activities of a State. This right has as a corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and war, together with the rights which each State may claim for its nationals in foreign territory’ (Island of Palmas case (Netherlands vs. US), RIAA II 829, 1928). See also the award in the Spanish Zones of Morocco claims case (Britain vs. Spain), 2 RIAA 615, 1925, p. 641 (‘[R]esponsibility is the necessary corollary of a right. All rights of an international character involve international responsibility’); and the separate opinion of Judge Séfériadès in the Lighthouses in Crete and Samos case (France vs. Greece), PCIJ Series A/B no. 62, 1937, p. 45.

17 Yearbook of the International Law Commission, 1973, II, p. 177.

18 Simma, Bruno, ‘From Bilateralism to Community Interest in International Law’, Recueil des Cours, 250 (1994), pp. 217–384, at pp. 233, 244Google Scholar . See also Cassese's characterisation of ‘community obligations’ as obligations possessing the following features: ‘(i) they are obligations protecting fundamental values …; (ii) they are obligations erga omnes …; (iii) they are attended by a correlative right that belongs to any State (or to any other contracting State, in case of obligations provided for in multilateral treaties; (iv) this right may be excercised by any other (contracting) State, whether or not it has been materially or morally injured by the violation; (v) the right is exercised on behalf of the whole international community (or the community of contracting States) to safeguard fundamental values of this community’ (Cassesse, Antonio, International Law (Oxford: Oxford University Press, 2005), p. 16Google Scholar , emphasis in original.

19 By now, there is a rich body of literature on ‘community interests’ in international law For an overview see, inter alia, Delbruck, Jost (ed.), New Trends in International Lawmaking. International ‘Legislation’ In the Public Interest (Berlin: Duncker and Humblot, 1997)Google Scholar .

20 Beck, ‘The Terrorist Threat’, p. 26.

21 Indeed, Beck calls for releasing the link between sovereignty and autonomy: ‘In this context, then, a new central distinction emerges between sovereignty and autonomy. The nation-state is built on equating the two. So from the nation-state perspective, economic interdependence, cultural diversification and military, judicial and technological cooperation all lead to a loss of autonomy and thus sovereignty. But if sovereignty is measured in terms of political clout – that is, by the extent to which a country is capable of having an impact on the world stage, and of furthering the security and wellbeing of its people by bringing its judgements to bear – then it is possible to conceive the same situation very differently. In the latter framework, increasing interdependence and cooperation, that is, a decrease in autonomy, can lead to an increase in sovereignty. Thus, sharing sovereignty does not reduce it; on the contrary, sharing actually enhances it. This is what cosmopolitan sovereignty means in the era of world risk society.’ (Beck, ‘The Terrorist Threat’, pp. 48–9). This line of argument seems to resonate in familiar discussions on the possibility of cooperation, integration and pooling of sovereignty between sovereign states within neoliberal institutionalist approaches. See inter alia Keohane, Robert O., ‘Ironies of Sovereignty: The EU and the US’, Journal of Common Market Studies, 40 (2002), pp. 743–765CrossRefGoogle Scholar .

22 Examples can be found in the preambles of the 1992 Convention on Biological Diversity, or the 1992 UN Framework Convention on Climate Change.

23 Hey, Ellen, ‘Global Environmental Law and Global Institutions, A System Lacking “Good Process”’, in Pierik, Roland and Werner, Wouter (eds), Cosmopolitanism in Context. Perspectives from International Law and Political Theory (Cambridge: Cambridge University Press, 2009)Google Scholar (in print). Text on file with authors.

24 Whereas we argue that the link between sovereignty and responsibility is not a late-twentieth century invention (as the controversy surrounding the Responsibility to Protect paradigm suggests), there has been a shift in what this sovereign responsibility entails: from respecting the rights of fellow- sovereigns (Island of Palmas) to protecting human rights of one's citizens (Responsibility to Protect) to community interests at large. See also Tanja E. Aalberts and Wouter G. Werner, ‘Sovereignty Beyond Borders: Sovereignty, Self-Defense and the Disciplining of States’, in Adler-Nissen, Rebecca and Gammeltoft-Hansen, Thomas (eds), Sovereignty Games. Instrumentalising State Sovereignty in Europe and Beyond (Houndmills: Palgrave, 2008), pp. 129–150Google Scholar .

25 Tanja E. Aalberts, Constructing Sovereignty Between Politics and Law (London: Routledge, 2012).

26 As Koskenniemi puts it: from the status of sovereign statehood itself no ‘given, determinate, normative implications’ follow Koskenniemi, Martti, ‘The Future of Statehood’, Harvard International Law Journal, 32 (1991), pp. 397–410, 408Google Scholar .

27 Foucault, Michael, The Order of Things (Harvester Press, 1989), p. 312Google Scholar , quoted by Dillon, Michael, ‘Sovereignty and Governmentality: From the Problematics of The “New World Order” To the Ethical Problematic of the World Order’, Alternatives, 20 (1995), pp. 323–368, 324CrossRefGoogle Scholar .

28 See also Dillon, ‘Sovereignty and Governmentality: From the Problematics of The “New World Order” To the Ethical Problematic of the World Order’; Beck, ‘The Terrorist Threat’.

29 Nevertheless, his concern seems to be quite similar to 17th century scholars and lawyers, namely ‘if the world is to survive this century, it must find a way to civilize world risk society. A new big idea is wanted. I suggest the idea of the cosmopolitan state, founded upon the recognition of the otherness of the other’ (Beck, ‘The Terrorist Threat’, p. 50).

30 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Session, Supp No 10, p. 43, UN Doc A/56/10 (2001). See also Resolution 56/83 (12 December 2001) through which the UN General Assembly ‘commended [the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action’.

31 For an overview see Crawford, James, The International Law Commission's Articles on State Responsibility-Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002)Google Scholar .

32 Commentaries on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53d session (2001), p. 59. Available at: {www.un.org/law} accessed on 7 August 2009.

33 For an expression of this obligation see, inter alia, La Grand (Germany vs. US of America), Merits, Judgement of 27 June 2001.

34 Brownlie, Ian, System of the Law of Nations, State Responsibility (Part I) (Oxford: Clarendon Press, 1983), p. 22Google Scholar .

35 See chapter II of the ILC articles, supra note 32.

36 The classical case regarding the so called ‘due diligence’ or ‘due care’ obligations of a state is the US Diplomatic and Consular Staff in Teheran (US of America vs. Iran), 24 May 1980, ICJ Reports, 1980.

37 See Brunnée, Jutta, ‘International Legal Accountability through the Lens of the Law of State Responsibility’, Netherlands Yearbook of International Law, 36 (2005), pp. 3–38CrossRefGoogle Scholar .

38 This does not mean that the traditional doctrine of state responsibility has become completely obsolete. It has played a key role, for instance, in the legitimation of the war in Afghanistan. See Aalberts and Werner, ‘Sovereignty Beyond Borders’.

39 See also Kessler's distinction between law as a ‘system of norms’ versus law as ‘manager of uncertainty’, this special section.

40 Goote, Maas, ‘Non-Compliance Procedures in International Environmental Law: The Middle Way between Diplomacy and Law’, International Law Forum, 1 (1999), pp. 82–89, 82CrossRefGoogle Scholar .

41 For an extensive discussion of non-compliance procedures in international environmental law see Koskenniemi, Martti, ‘Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol’, Yearbook of International Environmental Law, 3 (1992), pp. 123–162CrossRefGoogle Scholar ; Werksman, Jacob, ‘Compliance and the Kyoto Protocol: Building a Backbone into a “Flexible” Regime’, Yearbook of International Environmental Law, 9 (1998), pp. 48–105CrossRefGoogle Scholar ; Fitzmaurice, Malgosia and Redgwell, Catherine, ‘Environmental Non-Compliance Procedures and International Law’, Netherlands Yearbook of International Law, 31 (2000), pp. 35–65CrossRefGoogle Scholar ; Churchill, Robin R. and Ulfstein, Geir‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’, The American Journal of International Law, 49 (2000), pp. 623–659CrossRefGoogle Scholar .

42 Examples can be found in the Montreal protocol on Substances that Deplete the Ozone Layer, the Convention on Long-Range Transboundary Air Pollution, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal and the UN Framework on Climate Change. See also Goote, ‘Non-Compliance Procedures’, p. 85. A relatively recent example of such a mechanism is the Compliance Committee that was established under the Aarhus Convention. Aarhus Convention on Access to Information, Publics Participation in Decision-Making and Access to Justice in Environmental Matters, available at: {http://www.unece.org/env/pp/documents/cep43e.pdf} accessed on 18 August 2009.

43 For a discussion of the differences between environmental, financial and terrorist risks, see Beck, ‘The Terrorist Threat’.

44 Aradau and Van Munster, ‘Taming the Future’; Claudia Aradau and Rens van Munster, Politics of Catastrophe. Genealogies of the Unknown (London, Routledge, 2011), in print. The precautionary principle was officially adopted by the 1992 UN Conference on Environment and Development. Principle 15 of the Rio Declaration reads: ‘In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’ Since then, it has been established in a variety of treaties and declarations. For an overview see, inter alia Trouwborst, Arie, Precautionary Rights and Duties of States (Leiden/Boston: Martinus Nijhoff Publishers, 2006)CrossRefGoogle Scholar .

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46 Secretary General Kofi Annan's statement in the ministrial meeting of the Security Council, Doc.S/PV.4688, 20 January 2003, p. 2.

47 Resolution 1373 has been characterised as ‘first-ever legislative act’ of the Security Council, on the basis of its discretionary powers according to article 25 en Chapter VII of the Charter: a decision that is legally binding and enforceable upon all member-states indefinitely, and that is broad in its scope. See Szasz, Paul, ‘The Security Council Starts Legislating’, American Journal of International Law, 96 (2002), pp. 901–905CrossRefGoogle Scholar ; Alvarez, José E., ‘Hegemonic International Law Revisited’, American Journal of International Law, 97 (2002), pp. 873–888CrossRefGoogle Scholar ; Talmon, Stefan, ‘The Security Council as World Legislature’, American Journal of International Law, 99 (2005), pp. 175–193CrossRefGoogle Scholar ; Stiles, Kendall W., ‘The Power of Procedures and the Procedures of the Powerful: Anti-Terror Law in the UN’, Journal of Peace Research, 43 (2006), pp. 37–54, 46CrossRefGoogle Scholar .

48 Respectively UNSC Resolution 748 (1992), Resolution 1054 (1996), and Resolutions 1267 (1999), 1333 (2000) and 1363 (2001).

49 UNSC Resolution 1189 (13 August 1998).

50 By now, the CTC consists of three layers: the Plenary, the Bureau and the CTED. The Plenary consists of representatives of the fifteen member States of the Security Council. It has the primary responsibility for setting priorities in promoting and monitoring the implementation of Resolution 1373, communicating problems to the Security Council and facilitating contacts between the CTC and other UN bodies as well as other international organisations, considering initiatives for technical assistance and approving of the CTED work programme. The Bureau consists of the chair and the three vice chairs and is responsible for dealing promptly with issues that could be reported to the Plenary for confirmation as well as for harmonising the work of the subcommittees that deal with State reports on implementation. The CTED consists of experts who play a pivotal role in, inter alia, overseeing the implementation of Resolution 1373, setting up dialogues with states, facilitating capacity building and cooperating and communicating with UN bodies and other international organisations. For a detailed overview of the tasks and responsibilities of the different branches of the CTC see: {http://www.un.org/sc/ctc/} accessed 15 October 2008.

51 Schmemann, Serge, ‘UN to Get a US Antiterror Guide’, New York Times (19 December 2001)Google Scholar . See also the US report on Resolution 1373 to the Security Council, available at: {http://www.state.gov/p/io/rls/rpt/2001/6917.htm}.

52 See, for example, the comments of chairman Greenstock at the 57th Security Council session (4/8 October 2002), S/PV.4618, p. 5.

53 The CTC distinguishes between three phases. In stage A the focus is on the appropriate legislation that should be in place. Stage B focuses on the existence of an effective executive machinery, coordination, and mechanisms for counterterrorist activity and cooperation at the bilateral, regional, and global level. Stage C deals with bringing terrorists and their supporters to justice via the legislation and the executive machinery established in the earlier stages.

54 Asselt, Marjolein van and Vos, Ellen, ‘The Precautionary Principle and the Uncertainty Paradox’, Journal of Risk Research, 9 (2006), pp. 313–336CrossRefGoogle Scholar .

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58 This was explicitly stated in the Wimbledon Case (1923), which dealt with the restriction of sovereign freedom due to treaty making. This, however, is not a forsaking of (the status of) sovereignty but rather part of its exercise, as the Permanent Court famously stated: ‘No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign right of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty’ (S. S. Wimbledon Case, PCIJ Series A, No.1, 1923, p. 25).

59 Neumann, Iver B. and Sending, Ole Jacob, ‘The International as Governmentality’, Millennium, 35 (2007), pp. 677–701CrossRefGoogle Scholar .

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65 Foucault, Michel, The History of Sexuality. Volume I: An Introduction (New York, 1979)Google Scholar ; Ewald, ‘Norms, Discipline, and the Law’.

66 Foucault, ‘Governmentality’, p. 95.

67 Sending, Ole Jacob and Neumann, Iver B., ‘Governance to Governmentality: Analyzing NGOs, States, and Power’, International Studies Quarterly, 50 (2006), pp. 651–672, at 696CrossRefGoogle Scholar . See also Dean, Mitchell, Governmentality: Power and Rule in Modern Society (London: Sage, 1999)Google Scholar .

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70 Apart from specific threats (such as environmental, terrorist or financial risks), within liberal governance ‘common good’ increasingly also includes more abstract notions of the protection of the liberal world order and ‘our way of living’. See for instance Abrahamsen, Rita, ‘Blair's Africa: The Politics of Securitization and Fear’, Alternatives, 30 (2005), pp. 55–80CrossRefGoogle Scholar ; and Löwenheim, Oded, ‘Examing the State: A Foucauldian Perspective on International “Governance Indicators”’, Third World Quarterly, 29 (2008), pp. 255–274CrossRefGoogle Scholar .