* Thanks to Mary Ellen O'Connell for helpful comments. Remaining errors are my own.

1 Detlev F. Vagts, Hegemonic International Law, 95 AJIL 843 (2001). '’

2 See, e.g., UNILATERALISM AND U.S. FOREIGN POLICY 19 (David M. Malone &Yuen Foong Khong eds., 2003) (parlie ularly chapters by David M. Malone and Nico Kirsch); Unilateralism in International Law: Its Role and Limits: A United Slates-European Symposium, 11 F.UR.J. INT'LL. 1-186,249-411 (2000).

3 See, e.g., Konrad Ginther, Hegemony, in 2 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 685, 687-88 (Rudolf Bernhardt ed., 1995) (discussing the &“token&”; collective hegemony of the five permanent members of the Security Council and relegating collective HIL to exceptional instances of limited scope, such as the privileges extended to nuclear powers in the Nuclear Non-Proliferation Treaty).

4 Vagts, supra note 1, at 846.

5 But see John Quigley, The United Nations Security Council: Promethean Protector or Helpless Hostage? ?>h TEX. INT'L L.J. 129 (2000) (providing a prescient critique ofa U.S.- dominated Council) ;HenryJ. Richardson III, U.S. Hegemony, Race, and Oil in Deciding United Nations Security Council Resolution 1441 on Iraq, 17 TEMP. INT'L & COMP. L.J. 27 (2003) (discussing recent Council actions regarding Iraq). In a world threatened by nonstate actors bent on waging war on civilization, as well as by a hyper-power that appears inclined to react unilaterally, most international lawyers continue to pin their hopes on multilateral interstate processes, including the Security Council, as the best vehicle for advancing the diverse interests of the international community. See, e.g., VeraGowlland-Debbas, The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance, 11 EUR. J. INT'L L. 361 (2000). Those proposing reforms of the Council that would improve its effectiveness generally or in specific cases are presumably acting on the same premises. See, e.g., Thomas M. Franck, Inspections and Their Enforcement: A Modest Proposal, 96 AJIL 899 (2002); Eric Rosand, Security Council Resolution 13T3, the Counter-Terrorism Committee, and the Fight Against Terrorism, 97 AJIL 333 (2003).

6 Indeed, as Ginther reminds us, that is characteristic of hegemony. Ginther, supra note 5, at 685. Environmentalists, for example, have praised those unilateral U.S. actions that support or promote environmental regimes. See, e.g., Daniel Bodansky, What's So Bad About Unilateral Action to Protect the Environment? \\ EUR.J. INT'I.L. 339 (2000).

7 The 1267 Sanctions Committee was established to monitor the Council's sanctions directed at the Taliban. SCRes. 1267 (Oct. 15,1999), 38ILM 235 (2000). The Council later extended the mandate of that bodyto include individuals and organizations associated with Al Qaeda. SC Res. 1390 (Jan. 28, 2002); seealsoSC Res. 1373 (Sept. 28, 2001), 40 ILM 1278 (2001) (requiring states to prevent the financing of terrorist acts, bring terrorists to justice, improve border security and control traffic in arms, deny safe haven, and cooperate in criminal investigations and establishing the CTC to assess and assist states’ efforts). For a description of these counterterrorism efforts, see Ilias Bantekas, The International Law of Terrorist Financing, 97 AJIL 315 (2003); Rosand, supranote 5; Paul C. Szasz, The Security Council Starts Legislating, 96 AJIL 901 (2002).

8 Cf, e.g., SC Res. 748 (Mar. 31, 1992), 31 ILM 750 (1992) (imposing sanctions on Libya); SC Res. 1333 (Dec. 19, 2000), 40 ILM 509 (2001) (imposing sanctions on the Taliban).

9 Szasz, supra note 7, at 901-02. While other intergovernmental organizations, such as the International Civil Aviation Organization (ICAO), operating on the basis of majority voting and opt-out procedures, are capable of producing quasi-legislative effects, see, e.g., Frederic L. Kirgis, Specialized iMW-makingProcesses, in THE UNITED NATIONS AND INTERNATIONAL LAW 65 (Christopher C. Joyner ed., 1997), no other existing international mechanism pairs global legislative power capable of departing from preexisting treaty obligations with the possibility of enforcement via binding economic sanctions or military force. Further, all other examples of global legislative power in modern international organization entail much more narrowly defined lawmaking, as opposed to lawmaking triggered by undefined &“threats&”; to international peace. Indeed, many have suggested that the power of the Council to define for itself what constitutes such vague threats is what makes its discretion impervious to judicial review. '&”;

10 See Bruno Simma, From Bilateralism to Community Interest in International Law, 250 RECUEIL DES COURS 217,323 (1994). Indeed, Bantekas describes Resolution 1373 as a &“minitreaty.&”; Bantekas, supranote 7, at 326. '’ .S'

11 SeeSzasz, supra note 7, at 903. Compare International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, Arts. 9, 15, 17, 21, 39 ILM 270 (2000), with SC Res. 1373, supra note 7. As the comparison suggests, the Convention evinces greater concern for the rights of accused persons, as well as for potentially conflicting rules of international law. By contrast, the one explicit mention of human rights in Resolution 1373 urges states to exercise caution in respecting the rights of refugees to asylum. Id., para. 3(f), (g). '&”;

12 See Szasz, supra note 7, at 903; see also Bantekas, supra note 7, at 326 (suggesting that the United States took advantage of sentiment stirred by the attacks of September 11, 2001, to impose measures that the Council would otherwise not have adopted and that states would otherwise not have agreed to via treaty).

13 See, e.g., Letter Dated 19 October 2001 from the Chairman of the Counter-Terrorism Committee Addressed to the President of the Security Council, UN Doc. S/2001/986, annex, para. 2, available at http://www.un.org/ Docs/sc/committees/1373/986e.pdf (describing the expertise of the CTC's principal experts to be legislative drafti ng, financial law, customs law, immigration law, extradition law, police and law enforcement, and illegal arms trafficking); Press Conference, CTC: 1373 (Jan. 10,2002), available at http://www.un.org/Docs/sc/committees/ 1373/10jansum.htm (identifying the seven initial CTC experts: two from Austria and one each from Australia, France, India, the Netherlands, and Peru).

14 E.g., Serge Schmemann, United Nations to Get a U.S. Antiterror Guide, N.Y. TIMES, Dec. 19,2001, at B4 (reporting that the U.S. 1373 report to the Council, indicating a broad range of actions taken under the U.S. PATRIOT Act, was intended as a &“template for other countries in adapting their own laws&“). For the Act, see Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). lr’

15 Rosand, supra note 5, at 340. While acknowledging that his work will interact with human rights concerns, the then chair of the CTC indicated that &“[m]onitoring performance against other international conventions, including human rights law, is outside the scope of the CTC's mandate.&”; Presentation by Amb.Jeremy Greenstock, Chairman of the Counter-Terrorism Committee (CTC) at the Symposium: &“Combating International Terrorism: The Contribution of the United Nations&”; (June 3-4,2002), awa!fo*fcaKhttp://www.un.org/spanish/docs/comites/ 1373/ViennaNotesF.htm>. But see Presentation Given to the Counter-Terrorism Committee by Bacre Ndiaye of the Office of the High Commissioner for Human Rights (Dec, 11,2001), UN Doc, S/2001 /1227, annex, at 4, available at http://www.un.org/Docs/sc/committees/1373/1227el.pdf (noting &“strong&”; human rights dimensions to several of the CTC's expert areas and requesting that those assisting the CTC have strong human rights expertise).

16 See, f.g-.Jeremy Greenstock, Remarks, m Press Briefing on Combating International Terrorism (June 4,2002), athttp://www.un.org/Docs/sc/committees/1373/ViennaBriefing.htm(indicating that states are free to &“decide what is terrorism within their own jurisdiction&”; since those issues are &“political,&”; and that the committee is engaged instead in capacity building and consciousness raising against terrorism); see also Note by the Chairman, Guidance for the Submission of Reports Pursuant to Paragraph 6 of Security Council Resolution 1373 (2001) of 28 September 2001 (Oct. 26, 2001), available at http://www.un.org/Docs/sc/committees/1373/guide.htm

17 See, e.g., UN Commission on Human Rights, UN Doc. E/CN.4/Sub.2/2002/L.2 (directed at effects of measures to combat terrorism on the enjoyment of human rights): William Orme, Response to Terror[:] UN Fears Abuses of Terror Mandate Policy, L.A. TIMES, Jan. 2, 2002, at Al, available in 2002 WL 2443320.

18 For a survey, see Human Rights Watch, Opportunism In The Face Of Tragedy: Repression In The Name Of Anti-Terrorism, http://www.hrw.org/campaigns/septemberll/opportunismwatch.htm(lastmodiiiedjan. 20, 2002). For a specific example, see Report of the Republic of Cuba Submitted Pursuant to Paragraph 6 of Security Council Resolution 1373, UN Doc. S/2002/15, annex, available athttp://www.un.int/cuba/Pages/cubasreportonterrorism.htm. '&”;

19 See, e.g., Edith M. Lederer, UN Agrees on Returning Frozen Assets, AP, Aug. 16, 2002, available in 2002 WL 25670813 (indicating'that the vast majority of the two hundred individuals identified on the Council's lists at that time were put there by the United States amid complaints that Washington had not explained its criteria for naming them); see also The FinancialWar on Terrorism: Hearing Before the Senate Comm. onFinance, 107thCong. (Oct. 9, 2002) (statement of Alan Larson, under secretary of state for economic, business and agricultural affairs), available in 2002 WL 100237868 (describing listing procedures and those cooperating with U.S. efforts).

20 Per Cramer, Recent Swedish Experiences with Targeted UN Sanctions: The Erosion of Trust in the Security Council, in JUDICIAL REVIEW OF THE SECURITY COUNCIL BY MEMBER STATES (Erika de Wet & Andre Nollkaemper eds., forthcoming). See generally Second Report of the Monitoring Group Established Pursuant to Security Council Resolution 1363 (2001) and Extended by Resolution 1390 (2002),UN Doc. S/2002/1050, annex, available aKhttp:// www.un.org/Docs/sc/committees/1267/1050E02.pdf> [hereinafter Second Report] ;Amb. Charles A. Heimbold Jr., Blocking Terrorist Financing: A Fundamental 1 *ool, AFTONBL4DET, Mar. 20,2002, available athttp://www.uah. usemb.se/bio/ambassador_heimbold.html.

21 See generally Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 GEO. L.J. 775 (1997) (discussing the line separating civil forfeiture penalties and traditional criminal sanctions).

22 See, e.g., Second Report, supra note 20, at 8-9. 2:*

23 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 222; see Helen Mountfield, Regulatory Expropriations in Europe, 11 N.Y.U. ENVTL. L.J. 136 (2002) (describing deferential approach taken in European Convention toward temporary deprivations of property by state action); see also Steiker, supra note 21; cf. Foti v. Italy, 56 Eur. Ct. H.R. (ser. A) (1982); Corigliano v. Italy, 57 Eur. Ct. H.R. (ser. A), para. 34 (1982) (noting that, apart from an official notification that a person has committed a criminal offense, a criminal &“charge&“ for purposes of Article 6 of the European Convention may take the form of &“other measures which carry the implication&”; that the individual has committed a criminal offense and which &“substantially affect the situation of the suspect&“); Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 203-05 (D.C. Cir. 2001) (stigmatizing effect of a terrorist penalty and impact are sufficient to trigger some guarantees of due process). Article 14(1) of the ICCPR provides in relevant part: &“In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entided to a fair and public hearing by a competent, independent and impartial tribunal established by law.&”; This is notably the one provision in that article that applies both to criminal defendants and to civil suits. The rest of Article 14 (including the detailed rights to presumption of innocence, examination of witnesses, and trial without undue delay) applies only with respect to those charged with a crime.

24 Resolution 1373, supra note 7, para. 2(e) (requiring as well that terrorist acts be &“established as serious criminal offences in domestic laws and regulations&“). This paragraph, unlike the freeze orders in paragraph 1 of the same resolution and those implemented under the 1267 Sanctions Committee, clearly anticipates the involvement of states’ criminal justice systems, including presumably the applicability of rights due criminal defendants.

25 Second Report, supra note 20, at 9.

26 .SeeLarson, supra note 19; Lederer, supra note 19; seeaboSC Res. 1452, paras. 1,5 (Dec. 20,2002) (authorizing humanitarian exceptions for its counterterrorism financial sanctions on individuals). While that resolution bows to members’ complaints that it was inhumane, particularly in the absence of due process, to deprive listed individuals of all forms of sustenance, including for basic expenses such as food and medical assistance, it authorizes such exceptions only to the extent that a state notifies the 1267 Sanctions Committee of its intent to apply this exception and the committee fails to object within forty-eight hours. As a result, the 1267 Sanctions Committee, and those who dominate it, remain free to deny such basic necessities to anyone at any time.

27 See, e.g., Brief for the United States as Amicus Curiae, Doe v. Unocal, Nos. 00-56603,00-56628 (9th Cir. 2003), available at http://www.hrw.org/press/2003/05/doj050803.pdf.

28 See, e.g., Joan fitzpntrick, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, 96 AJIL 345 (2002).

29 Cf. SC Res. 1456, annex, para. 6 (Jan. 20, 2003) (nonbinding &“Declaration&”; asserting that state must ensure that their counterterrorism measures are in accordance with international law, including international human rights, refugee, and humanitarian law).

30 Despite its actions since 9/11, the U.S. government has not filed a derogation under Article 4 of the ICCPR, perhaps because of the limits imposed on such derogations and because giving such notice would in itself subject the United States to scrutiny. See Fitzpatrick, supra note 28, at 350&…;51.

31 See, e.g., Case T-306/01 R,Adenv. Conseildel'Unioneuropeenne, Order (Trib. leinst. May 7,2002) (unsuccessful challenge to counterterrorism financial sanctions imposed on individual); Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Trans., Energy & Communications, 1996 ECR 1-3953 (unsuccessful challenge to sanctions imposed on corporation). A national or international court asked to review the legality of financial sanctions imposed as a result of the Council's action would have little to review in any case since, as noted, the Council does not release ajustification or documents associated with its targets and the targeted individuals have not been formally charged with a crime.

32 SC Res. 1368, pmbl. (Sept. 12, 2001), 40 ILM 1277 (2001) (&“[r]ecognizing the inherent right of individual or collective self-defence in accordance with the Charter&“); SCRes. 1373, supra note 7, pmbl. (&“[reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368&“). Some have suggested that, in addition to the preambles of these resolutions, paragraph 2 (b) of Resolution 1373 (indicating that all states shall&”; [t] ake the necessary steps to prevent the commission of terrorist acts&“) contains an &“almost unlimited mandate to use force.&”; Michael Byers, Terrorism, the Use ofForu and International IJIW After 11 September, 51 INT'L & COMP. L.Q. 401, 402 (2002). But this would be an extraordinary requirement to use force and certainly a departure from the usual language by which the Council authorizes the use offeree (&“all necessary means&“). The departure from that usual formula, in a resolution whose other operative paragraphs mandate only financial and criminal sanctions, strongly suggests that paragraph 2 (b) was probably not intended to be a general mandate to use force.

33 See, e.g., Oscar Schachter & Oliver Ulich, The Security Council, in THE UNITED NATIONS AND HUMAN RIGHTS (Philip Alston ed., 2d ed. forthcoming 2004) (surveying the normative impact of the Council through its case-by-case development of the concept of &“threat to the peace&“). See generally ROSALYN HlGGlNS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS (1963).

34 Butsee Thomas M.Franck, Terrorism and the Right ofSelf-Defense, 95 AJIL 839 (2001) (arguing that U.S. military action in Afghanistan required no adjustments to existing law). It is not entirely clear whether Franck would endorse the three general rules suggested in the text above or whether his arguments about the state of the law were intended to be limited to the particular facts of Afghanistan as of the fall of 2001. If intended as a statement of general law, some of Franck's assertions are dubious. He contends, for example, that the draft articles on state responsibility of the International Law Commission (ILC) &“make it clear that a state is responsible for the consequences of permitting its territory to be used to injure another state.&”; Id. at 841 (citing the draft articles as of the second reading). If this implies that the ILC's draft articles endorse a kind of strict liability standard on these kinds of questions, it is incorrect. The draft articles attribute the action of nonstate actors to states only in carefully delimited circumstances, as where those actors’ conduct is directed or controlled by the state, the nonstate actors are exercising elements of governmental authority, or the state acknowledges or adopts the conduct in question. Draft Articles on Responsibility of States for Internationally Wrongful Acts, Arts. 8, 9,11, m Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at http://www.un.org/law/ilo; cf. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.),Merits, 1986ICJREP. 14, paras. 86-93 (June 27) (requiring a demonstration oP'effective control&”; to impute actions to a state); Prosecutor v. Tadic, Appeal Judgment, No. IT-94-1-A, para. 137 (July 15,1999), 38ILM 1518 (1999) (asking whether a state has a role in organizing, coordinating, or planning the military actions). It may be that neither the internationaljudicial decisions cited nor the ILC's draft articles are the last word when it comes to the rules of attribution for terrorist acts, but if, under existing law, a state is subject to full-scale military defensive action against it simply because nonstate actors within it injure another state, this proposition requires considerably more documentation. As for Afghanistan, it is not altogether clear whether all U.S. actions during the course of that conflictwere, in hindsight, legallyjustified. Cf. Mary Ellen O'Connell, Lawful Self-Defense to Terrorism, 63 U. PITT. L. REV. 889 (2002) (suggesting that not all U.S. actions during Operation Enduring Freedom met the requisites of proportionality) .

35 Franck, supra note 34, at 839.

36 Note that President Bush had already announced, prior to approval of Resolution 1373, that the United States would no longer distinguish between terrorists and states harboring them. President George W. Bush, Address Before a Joint Session of Congress on the United States Response to the Terrorist Attacks of September 11, 37 WKI.Y. COMP. PRES. DOC. 1347, 1349 (Sept. 24, 2001).

37 See generally Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL 516 (1991). While we have only fragmentary knowledge of how the United States (and other permanent members) regularly blandish other states so as to get their way within the Security Council, the drive to secure the Council's permission to wage war on Iraq, both prior and subsequent to adoption of Resolution 1441 (Nov. 8, 2002), 42 ILM 250 (2003), reportedly included a multitude of economic and other threats directed at even the leastpowerful members of the Council.

38 Thus, even Franck, who argues that existing rules sufficed to justify Operation Enduring Freedom, relies on the Security Council for every one of his propositions of established law. Franck, supra note 34, at 839-42.

39 Cf. id. at 842-43 (arguing that the state taking forceful defensive action needs to prove its case after the fact).

40 Cf. Secretary of Defense Donald H. Rumsfeld, Press Statement (May 22,2002), awaifaM? a«http://www.defenselink. mil/news/May2002/briefings.html>; discussion of ILC draft articles, supra note 34.

41 See, e.g., SC Res. 748 (Mar. 31, 1992) (imposing sanctions on Libya); SC Res. 1333 (Dec. 19, 2000), 40 ILM 509 (2001) (imposing sanctions on the Taliban).

42 See generally Byers, supra note 32, at 412.

43 Franck, supra note 34, at 840.

44 Indeed, as Professor Reisman indicates in another context, &“the potential for abuse here does not derive from the power of a single state.&”; W. Michael Reisman, Assessing Claims to Revise the Laws of War, 97 AJIL 82, 90 (2003). To paraphrase Reisman, the hegemon can always attribute the problematic ambiguities to a weak international legal system, which licenses the Council to undertake such action. This is global HIL, in short, that leaves no fingerprints. But see infra note 69.

45 THE NATIONAL SECURITYSTRATEGYOFTHE UNITED STATES OF AMERICA (Sept. 2002), available at http://whitehouse.gov/nsc/nss.pdf; NATIONAL STRATEGY TO COMBAT WEAPONS OF MASS DESTRUCTION (Dec. 2002), available at http://www.whitehouse.gov/response/index.html. As Reisman observes in the anodyne language of the Yale School, the doctrine to engage in preemptive force &“contribute [s] to minimum order by stabilizing the expectations of all actors as to the consequences of certain types of action and thus aid [s] in avoiding adventures and mistakes.&”; Reisman, supranote 44, at 90. Notwithstanding the language of Article 2(4) of the UN Charter, under its security strategy the hegemon apparently retains the right to threaten any and all.

46 SC Res. 687 (Apr. 3, 1991), 30 ILM 847 (1991).

47 See SC Res. 1483, paras. 4, 5 (May 22, 2003), 42 ILM 1016 (2003) (calling upon the Authority&…;namely, the United States and the United Kingdom&…;to promote the welfare of the Iraqi people consistently with the Charter and &“other relevant international law&“; and calling upon &“all concerned&”; to comply fully with the Geneva Conventions of 1949 and the Hague Regulations of 1907). Whether this resolution was intended to be the equivalent of an adjudicativejudgment that the United States and the United Kingdom are subject to the law governing occupying powers under the Geneva Conventions of 1949 and the Hague Regulations of 1907, see, e.g., Frederic L. Kirgis, Security Council Resolution 1483 on the Rebuilding of Iraq, ASIL INSIGHTS, May 2003, available at http://www.asil.org/insights/insighl07.htm, remains to be seen. With the possible exception of its provision for review a year hence, nothing in that resolution recognizes that under the relevant Geneva Convention, for example, lawful occupation normally extends for only a one-year period after the &“general close of military operations.&”; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12,1949, Art. 6,6 UST 3516,75 UNTS 287 (stating that the Convention ceases to apply after the one-year period but providing that certain provisions continue to apply thereafter to the extent the occupier &“exercises the functions of government&“). Indeed, given the continuing violence in Iraq at least through the summer of 2003, it is not even clear that military operations have in fact ended despite prior U.S. statements to this effect.

48 &$ee generally Jordan A. Paust, The U.S. as Occupying Power over Portions of Iraq and Relevant Responsibilities Under the Law of War, ASIL INSIGHTS, Apr. 2003, available at http://www.asil.org/insights/insighl02.htm (describing relevant obligations).

49 While Resolution 1483 affirms the need for criminal accountability for crimes committed (but only by the previous Iraqi regime and not by anyone else on Iraqi territory) and imposes a duty on states to freeze the assets of Saddam and other senior officials of the former regime, it steers clear of indicating how trials will be conducted, not mentioning any of the likely possible options or suggestions of involvement by the UN special representative or the international community as a whole. SCRes. 1483, supra note 47, para. 8. The Authority is left with full discretion about whether or not to conduct such trials itself (even through the application of U.S. military tribunals with no local Iraqi or UN participation), to implement a partial or full amnesty for such crimes, to undertake various forms of truth commissions, or to implement an Iraqi lustration program banning former Ba'ath Party members from certain positions in government or perhaps civil society more generally.

50 Resolution 1483 recognizes a UN special representative with &“independent responsibilities&”; but who needs to work with the Authority to &“facilitate a process leading to an internationally recognized, representative government of Iraq.&”; Id., para. 8 & 8 (c). This ambiguous directive appears to be a studied effort to avoid any of the usual trigger words or preconditions for UN involvement in election supervision, thereby according the Authority wide latitude in administering Iraq and deciding its future. The resolution's treatment of UN responsibilities is less vague with respect to the UN role in &“coordinating&”; humanitarian and reconstruction assistance. Id., para. 8(a); cf. para. 8(g) (directing that the United Nations merely &“promote&”; the protection of human rights). But whether paragraph 8(g) contemplates that the UN special representative will be able to object, much less take any action in response, to any possible violations of applicable human rights or international humanitarian norms by the Authority remains to be seen. Cf. Kirgis, supra note 47.

51 Cf. Anne-Marie Slaughter, Good Reasons for Going Around the UiV.,N.Y. TIMES, Mar. 18, 2003, at A33 (arguing that the Iraqi war might be illegal but could still be legitimate). Kirgis suggests that the relative absence of a substantial UN presence in Iraq pursuant to Resolution 1483 serves to distinguish this case from that of Kosovo, wheresuch involvement, welcomed by the Council in Resolution 1244 (June 10,1999),38 ILM 1451 (1999), arguably served to legitimate the 1999 bombing campaign there. Kirgis, supra note 47. But the failure of Resolution 1483 to authorize a comparable UN presence (or to put the UN special representative clearly in charge of the administration of Iraq* cuts both ways. Some might contend that the Council's acquiescence in the Authority's sole responsibility for Iraq not merely recognizes the status quo but acknowledges the Authority's legitimate rights to rule the state that has been invaded. In Resolution 1483 the Council appears to be acquiescing in an essentially new form of trusteeship, complete with regular reporting responsibilities. By not imposing a UN presence, the Council seems to be trusti ng the Authority more than it did NATO in the case of Kosovo. One does not cede such responsibility, one would assume, to aggressors.

52 See, e.g., Anne-Marie Slaughter, A Chance to Reshape the U.N., WASH. POST, Apr. 13,2003, at B7 (proposing a Council determination of threat to the peace in cases combining possession of WMDs, grave and systematic human rights abuses, and evidence of aggressive intent).

53 See SC Res. 940 (July 31,1994); see also FERNANDO R. TESON, APH1LOSOPHYOF INTERNATIONAL LAW 62-63 (1998).

54 GERRY SIMPSON, GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER (forthcoming 2004).

55 This is perhaps the inevitable result of the Council's selectivity in responding to breaches of the Charter, especially when it comes to those violations committed by permanent members or by states allied with such members. While the invasion of Kuwait was a brazen violation of the Charter, no state, before or since, has been subjected to comparable restrictions on its sovereignty for violating international law. See generally Martti Koskenniemi, The Police in the Temple, 6 EUR.J. INT'LL. 325 (1995). & Indeed, the lawmaking impact of the Council's establishment of the UN Compensation Commission may rival the legal impact of its establishment of the two ad hoc war crimes tribunals, even though the latter is more widely acknowledged than the former. SeeVeijo Heiskanen & Robert O'Brien, UN Compensation Commission Panel Sets Precedents on Government Claims, 82 AJIL 339 (1998).

57 See generally Serge Sur, Securite collective et retablhsement de la paix, in THE DEVELOPMENT OF THE ROLE OF THE SECURITY COUNCIL 13 (Rene-Jean Dupuy ed., 1993).

58 SIMPSON, supra note 54, ch. 8.

59 Id.

60 The ILC debated and ultimately rejected a provision on state crimes as part of its recently concluded effort to codify the rules governing state responsibility. See generally Symposium:The ILC's StateResponsibility Articles,96 AfIL 773 (2002).

61 See generally Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-fires and the Iraqi Inspection Regime, 93 AJIL 124 (1999).

62 See generally ErikadeWet, Human Rights Limitations to Economic Enforcement'Measures Under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime, 14 LEIDEN J. INT'L L. 277 (2001).

63 SC Res. 1483, supra note 47, paras. 16(b), 21.

64 Id., paras. 7, 12, 20; see also Kirgis, supra note 47.

65 SCRes. 1422 (July 12,2002), 41ILM 1276 (2002), renewed as SC Res. 1487 (June 12,2003). That resolution, adopted as a result of U.S. pressures on a reluctant Council, see Sean D. Murphy, Contemporary Practice of the United States, 96 AJIL 725 (2002), takes the U.S. campaign against the International Criminal Court, formerly consisting of U.S. unilateral threats to deprive aid or other benefits to ICC state parties, efforts to negotiate bilateral agreements under Article 98 of the Rome Statute with ICC state parties, and passage of the American Servicemembers Protection Act, to me global level. On these other actions, see id, 93 AJIL 186 (1999), 96 AJIL 724 (2002), and 97 AJIL 200 (2003). Like Resolution 1373, this resolution and its anticipated annual extensions, undertaken not in response to any concrete or discrete threat to the peace or directed at any particular target state, have the effect of legislating globally, in this instance not by serving as an alternative to an international treaty not yet in effect but by amending onealreadyinforce. Moreover, it would be ironic, but wholly in line with global HIL, if the Council's expressed intent to renew Resolution 1422 annually committed permanent members not to exercise their veto powers to prevent such renewals. Cf. Franck, supra note 5 (proposing such an agreement in a wholly different context). Depending on what Resolution 1422 and its progeny mean by the UN &“established or authorized operations&”; that it exempts from ICCjurisdiction, the Council may have achieved through the back door precisely the blanket exemption from ICC jurisdiction that the United States sought for itself during the negotiations on the Rome Statute. See, e.g., Carsten Stahn, The Ambiguities ofSecurity Council Resolution 2422,14 EUR.J.lNT'LL. 85,103-04 (2003) (suggesting that Operation Enduring Freedom might be embraced by the language of Resolution 1422); see also Salvatore Zappala, The Reaction of the US to the Entry into Force of the ICC Statute, 1 J. INT'L CRIM. JUST. 114 (2003).

66 Indeed, eminent international lawyers have defended the legality of Resolution 687. E.g., Oscar Schachtei, United Nations Law in the Gulf Conflict, 85 AJIL 452 (1991).

67 See Kirgis, supra note 47

68 See Ginther, supra note 3, at 686; Vagts, supra note 1, at 846.

69 This restates, in different fashion, a point recently made by Reisman. He suggests that blame for the risk of uncontrolled superpower abuse of the Bush administration's proclaimed preemptive self-defense doctrine rests not with the hegemon but with the entire international community for building only weak central institutions and therefore reserving to each state a &“droit naturel&“'to use unilateral force in self-defense. Reisman, supra note 44, at 90. For those who see the Council as doing the bidding of the hegemon, Reisman's argument seems Orwellian. Taken literally, it would appear to absolve the hegemon of any moral or political blame for global or unilateral HIL, while shifting the burden onto the &“college of international lawyers&”; to solve the resulting problems through &“[l]egal creativity and factual realism.&”; Id. It would appear to be more in line with factual realism to recognize that in these cases the hegemon is taking advantage of the acknowledged weaknesses in international law and that the solution to global HIL lies partly, if not wholly, in its hands.

70 See, e.g., Stephen J. Toope, Powerfulbut Unpersuasive? The Role of the United States of America in the Evolution of Customary International Law, in UNITED STATES HEGEMONY AND THE FOUNDATIONS OF INTERNATIONAL LAW 287 (Michael Byers & Georg Nolte eds., 2003).

71 &”; Cf.Tom ].f'arer, Beyond the CharterFrame: Unilateralism or Condominium?96 Ajlh 359,361 (2002) (expressing the view that a &“condominium&”; under the Council would probably be short-lived and would soon &“crack and finally shatter&“).

72 For a cogent short history, see Jack Snyder, Imperial Temptations, NAT'L INTEREST, Spring 2003, at 29. &”; See generally Balakrishnan Rajagopal, International Law and Social Movements: Challenges of Theorizing Resistance,

73 COLUM.J.TRANSNAT'LL. 397 (2003).

74 Cf. Szasz, supra note 7, at 905 (making a similar plea).

75 A Security Council that serves as something more than the mouthpiece of the hegemon may, for example, benefit from different views and expertise with respect to complex issues facing it, such as how best to engage in nation building in Iraq. See generally Peter M. Haas & Ernst B. Haas, Learning to Learn: Some Thoughts on Improving International Governance of the Global Problematique, in ISSUES IN GLOBAL GOVERNANCE: PAPERS WRITTEN FOR THE COMMISSION ON GLOBAL GOVERNANCE 295 (1995).

76 W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83, 99 (1993).

77 Hans J. Morgenthau, Political Limitations of the United Nations, in LAW AND POLITICS IN THE WORLD COMMUNITY 143, 150 (George A. Lipsky ed., 1953).

78 Council prescriptions may need to address, for example, not only steps to lessen use of the veto, cf. Franck, supra note 5 (recommending measures to reduce the use of the veto), but also agreed limits on the Council's powers. See, e.g., Erika de Wet & Andre Nollkaemper, Review of Security Council Decisions by National Courts, 2002 GER. Y.B. INT'LL. 166. Thanks to Mary Ellen O'Connell for helpful comments. Remaining errors are my own.