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We Have Not Seen the Last of the Rogue State

Published online by Cambridge University Press:  06 March 2019

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Viewed at a certain angle, the rogue state seems to be in almost necessary relation with the idea of rupture. As Derrida put it in his 2002 lectures on Rogues, the rogue state, état voyou in franglaise,' “is someone who rattles, who shakes things up, who agitates.” Past and present rogue states like Iran, Iraq, Libya or North Korea, are associated with the acquisition of Weapons of Mass Destruction (WMD), state sponsorship of terrorism and the violation of human rights. These entities pose both external threats to other states and internal threats to their own people. Today, the phrase ‘rogue state’ may seem to be past its sell-by-date. While the term was not coined by the G.W. Bush administration, during the eight years it was in power in the United States (US), the phrase became strongly associated with the Bush Doctrine, appearing in key security documents as well as speeches. Under the banner of ‘change’ President Obama, a Nobel Peace Laureate, has distanced himself from the policies of his predecessor. The phrase ‘rogue state’ has been expunged from the current National Security Strategy, for instance.

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Articles
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Copyright © 2012 by German Law Journal GbR 

References

1 Derrida, Jacques, Rogues: Two Essays on Reason (Pascale-Anne Brault and Michael Naas tr., 2003).Google Scholar

2 Id. at 66.Google Scholar

3 National Security Council of USA, National Security Strategy (September 2002).Google Scholar

4 National Security Council of USA, National Security Strategy (May 2010).Google Scholar

5 Bauman, Zygmunt, Social Issues of Law and Order, 40 British Journal of Criminology 205, 207 (2000).Google Scholar

6 Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (2004).Google Scholar

7 Derrida, supra note 2, at 66.Google Scholar

8 United Nations Charter art. 2(1): “The Organization is based on the principle of the sovereign equality of all its Members.”Google Scholar

9 Simpson, supra note 7, at 280–281.Google Scholar

10 See for example, Saunders, Elizabeth N., Setting Boundaries: Can International Society Exclude ‘Rogue States'?, 8 Int. Stu. Rev. 23 (2006).Google Scholar

11 Litwak, Robert S., The New Calculus of Pre-emption, 44(4) Survival 53, 67 (2002-3).Google Scholar

12 Caprioli, Mary & Trumbore, Peter F., Identifying ‘Rogue’ States and Testing their Interstate Conflict Behaviour, 9(3) EJIR 377, 378 (2003).Google Scholar

13 Yoo, John, Using Force, 71(3) Univ. Chi. L.R. 729, 783 (2004).Google Scholar

14 Litwak, Robert S., Rogue States and US Foreign Policy: Containment After the Cold War (2000).Google Scholar

15 US NSS 2002, supra note 4, at 14.Google Scholar

16 Madeleine Albright, Speech at Tennessee University, State, (Feb. 19 1998), available at: http://secretary.state.gov/www/statements/1998/980219b.html (last accessed: 24 April 2012).Google Scholar

17 Derrida, supra note 2, at 66.Google Scholar

18 Rice, Condoleezza, Promoting the National Interest, 79(1) Foreign Affairs 45, 46 (2000).Google Scholar

19 Lake, Anthony, Confronting Backlash States, 73(2) Foreign Affairs 45, 55 (1994).Google Scholar

20 Litwak, Robert S., Rogue States: A Handy Label but a Lousy Policy, The Washington Post, (Feb. 20, 2000).Google Scholar

21 Litwak, supra note 15, at 75.Google Scholar

22 Saunders, supra note 11, at 28; Litwak, supra note 15, at 11.Google Scholar

23 UN Charter 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 stateGoogle Scholar

24 Derrida, supra note 2, at xiii.Google Scholar

25 Id. at 10–14.Google Scholar

26 Id. at 21.Google Scholar

27 Id. at 97.Google Scholar

28 UN Charter art. 24(1): “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”Google Scholar

29 UN Charter art. 25: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”Google Scholar

30 Matthew Happold, Security Council Resolution 1373 and the Constitution of the United Nations, 16 Leiden Journal of International Law (LJIL) 593 (2003).Google Scholar

31 Article 27(3) UN: “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

32 Derrida, supra note 2, at 98.Google Scholar

33 Id. at 99.Google Scholar

34 Brierly, Jamer, The Covenant and the Charter, 23 British Yearbook of International Law (BYIL) 83, 91-2 (1946).Google Scholar

35 Simpson, supra note 7, at 6.Google Scholar

36 Anghie, Antony, On Critique and Other, in International Law and its Others 394 (Anne Orford ed., 2006).Google Scholar

37 Franck, Thomas M., The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Disequilibrium 100(1) AJIL 88, 97 (2006).Google Scholar

38 According to, inter alia, the Oxford English Dictionary Online, available at: http://www.oed.com/view/Entry/166894?redirectedFrom=rogue%20state#eid25187963 (last accessed: 24 April 2012).Google Scholar

39 National Security Council of USA, National Security Strategy (February 1995).Google Scholar

40 Boucher, Richard, State Department Daily Press Briefing, Jun. 19, 2000, available at: http://1997-2001.state.gov/www/briefings/0006/000619db.html (last accessed: 24 April 2012).Google Scholar

41 US NSS 2010, supra note 5, at 2.Google Scholar

42 Id. at 12–13.Google Scholar

43 Obama, Barack, Responsibility for our Common Future, address to the UN General Assembly Meeting, 64th Session, Sept. 23, 2009.Google Scholar

44 Blair, Tony, Doctrine of the International Community, address to the Economic Club of Chicago, Apr. 24, 1999.Google Scholar

45 High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004).Google Scholar

46 Established under UN Doc. S/Res/1373 (2001).Google Scholar

47 UN Doc. S/PV.6390, 6390th Meeting of the Security Council (2010).Google Scholar

48 Derrida, supra note 2, at 64.Google Scholar

49 For example, the Millennium Declaration, adopted unanimously by the General Assembly on 8 September 2000, listed the values of Freedom, Equality, Solidarity, Tolerance, Respect for Nature and Shared Responsibility as fundamental values: see UN Doc. A/Res/55/2 (2000).Google Scholar

50 Simma, Bruno & Paulus, Andreas L., The ‘International Community': Facing the Challenge of Globalization 9(2) EJIL 266, 268 (1998).Google Scholar

51 Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argumentation (2005).Google Scholar

52 Derrida, supra note 2, at 64.Google Scholar

53 See for example, UN Doc. S/Res/1696 (2006).Google Scholar

54 UN Charter art. 2(7).Google Scholar

55 Tomuschat, Christian, Obligations Arising for States Without of Against Their Will, 241 Recueil des Cours 194, 342 (1993).Google Scholar

56 Koskenniemi, supra note 52, at 300.Google Scholar

57 For the idea that actors that are excluded because of their deviance are not trusted with their freedom, see Bauman, supra note 6, at 207.Google Scholar

58 Id. at 206.Google Scholar

59 US NSS 2010, supra note 5, at 35.Google Scholar

60 US NSS 2002, supra note 4, at 3.Google Scholar

61 See for example, US NSS 2010, supra note 5, at 5. For the George H. W. Bush position, see National Security Council of USA, National Security Strategy (2006).Google Scholar

62 Carr, Edward H., The Twenty Years' Crisis 1919–1939: An Introduction to the Study of International Relations (1981).Google Scholar

63 Derrida, supra note 2, at 79–80.Google Scholar

64 Id. at 79–80.Google Scholar

65 It is thought that the Clinton Administration's adoption of “states of concern” rather than rogue states was a response to their negotiating position with respect to the Democratic People's Republic of Korea.Google Scholar

66 Simpson, supra note 7, at 285.Google Scholar

67 Id. at 284.Google Scholar

68 Isolation, in the guise of containment was also used by the Clinton administration; See, for example, National Security Council of USA, National Security Strategy, December 2000; US NSS 1995, supra note 40, at 2.Google Scholar

69 UN Charter art. 41.Google Scholar

70 UN Charter art. 42.Google Scholar

71 Frowein, Jochin & Krisch, Nico, Article 42, in The Charter of the United Nations: A Commentary 753 (Bruno Simma ed., 2002).Google Scholar

72 Barack Obama, Hradcany Square, Prague„ Apr.5 2009, available at: http://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Pelivered/(last accessed: 24 April 2012).Google Scholar

73 The UK's permanent representative at the Security Council, Sir Mark Lyall Grant, expressed this rationale in the Security Council meeting at which SCR 1929 (2010) was passed; see UN Doc. S/PV.6335 (2010).Google Scholar

74 US Chief of Staff Admiral Mike Mullen has not only said that military actions remain on the table, but also that the military has already made “a plan”; see transcript from “Meet the Press,” MSNBC, Aug. 1, 2010, available at: http://www.msnbc.msn.com/id/38487969/ (last accessed: 24 April 2012).Google Scholar

75 US NSS 2010, supra note 5, at 11–12.Google Scholar

76 Bauman, supra note 6, at 206.Google Scholar

77 US NSS 2010, supra note 5, at 12.Google Scholar

78 See, for example, Cassese, Antonio, International Law in a Divided World (1986).Google Scholar

79 Roele, Isobel, Ascertaining Inchoate Threats to International Peace and Security, in International Law in a Multipolar World (Mathew Happold ed., 2011).Google Scholar

80 Interestingly the Oxford English Dictionary online edition suggests that the word ‘rogue’ originally meant vagrant or vagabond. These individuals wandered across the country rather than being included in any particular society; see generally, The Oxford English Dictionary, available at: http://www.oed.com/ (last accessed: 24 April 2012).Google Scholar

81 Derrida, supra note 2.Google Scholar

82 Bauman, supra note 6, at 207.Google Scholar

83 Id. at 206.Google Scholar

84 International Atomic Energy Agency Doc. GOV/2006/14 (2006).Google Scholar

85 UN Doc. S/Res.1696 (2006).Google Scholar

86 Bauman, supra note 6, at 206.Google Scholar

87 Id. at 206.Google Scholar

88 Id. at 207.Google Scholar

89 Report of the High-Level Panel on Threats, Challenges and Change, supra note 46, at 17.Google Scholar

90 Derrida, supra note 2, at 79.Google Scholar

91 Id. at 64.Google Scholar

92 Derrida, supra note 2, at 64.Google Scholar

93 UN Doc. A/53/10 (1998); International Law Commission, Report of the International Law Commission on the work of its fiftieth session (1998).Google Scholar

94 Phrase attributed to eighteenth century Lord Chancellor of Great Britain, First Baron Thurlow; See, for example, John Coffee, 'No Soul to Damn and No Body to Kick': An Unscandalized Inquiry into the Problem of Corporate Punishment 79(3) Mich. L. Rev. 386 (1980-1).Google Scholar

95 Nuremberg International Military Tribunal, Judgment and Sentences, 41(1) AJIL 172, 221 (1947).Google Scholar

96 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BIH v. SRB), 2007 I.C.J. 43, at 172 (Feb. 26, 2007).Google Scholar

97 Id. at 170.Google Scholar

98 UN Doc. A/53/10 (1998); International Law Commission, supra note 95; Official Records of the General Assembly, Fifty-third session, Supplement No.10, at 64–77.Google Scholar

99 UN Doc. A/31/10 (1976); International Law Commission, Report of the International Law Commission on the work of its twenty-eighth Session (1976); Official Records of the General Assembly, Thirty-first session, Supplement No. 10, at 95–96.Google Scholar

100 Id. at 95–96.Google Scholar

101 Derrida, supra note 2.Google Scholar

102 The ways in which crime can be understood as a public matter are interestingly considered by G. Lamond, What is a Crime?, 27(4) OJLS 609, 614 (2007).Google Scholar

103 Sandra E. Marshall and Antony Duff, Criminalization and Sharing Wrongs, 11(1) Can. J. L & Juris. 7, 15 (1998).Google Scholar

104 UN Charter art. 24(1).Google Scholar

105 Many commentators writing on state crime are careful to note that not all breaches of obligations erga omnes could be considered criminal; see, for example, Geoff Gilbert, The Criminal Responsibility of States, 39(2) ICLQ 345, 355 (1990); James Crawford, First Report, UN Doc. A/53/10 (1998) 69, at 278–279.Google Scholar

106 Barcelona Traction, Light and Power Company, Limited (NV v. ES) (New Application: 1962), Second Phase, ICJ Reports, (Feb. 5, 1970), at para. 33.Google Scholar

107 UN Doc. A/53/10 (1998); International Law Commission, supra note 95; Official Records of the General Assembly, Fifty-third session, Supplement No.10, 67 at 265.Google Scholar

108 Simma, Bruno, From Bilateralism to Community Interest, 250 Recueil des Cours 217, 306 (1994 VI).Google Scholar

109 Happold, supra note 31.Google Scholar

110 Fassbender, Bardo, The United Nations Charter as the Constitution of the International Community (2009); Nigel White, The Legality of Bombing in the Name of Humanity 5(1) JCSL 27, 28–29 (2000); Christian Tomuschat, Obligations Arising for States Without of Against Their Will, 241 Recueil des Cours 194, 334 (1993 IV).Google Scholar

111 And within the SC, the P5; High-Level Panel on Threats, Challenges and Change, supra note 46.Google Scholar

112 See, for example, Tony Blair in Hansard HC vol. 390 col. 5, Sept. 24, 2002.Google Scholar

113 Simma, supra note 110, at 309.Google Scholar

114 Nuremberg International Military Tribunal, Judgment and Sentences, 41(1) AJIL 172, 186 (1947).Google Scholar

115 Robert Cryer et. al., Introduction to International Criminal Law and Procedure (2010).Google Scholar

116 Resolution RC/Res.6, The Crime of Aggression, Adopted at the 13th plenary meeting, on 11 June 2010, by consensus, article 15.Google Scholar

117 But cf. the “acts of aggression committed by the racist regime of South Africa” against Angola, which were condemned in UN Doc. S/Res/602 (1987).Google Scholar

118 Bauman, supra note 6, at 207.Google Scholar

119 Bauman, supra note 6, at 208.Google Scholar

120 Simpson, supra note 7, at 284.Google Scholar

121 Derrida, supra note 2.Google Scholar

122 Press release, Briefing by Secretary Clinton, Secretary Gates, Admiral Mullen on the announcement of the new START treaty (Office of the Press Secretary), The White House, Mar. 26, 2010, available at: http://www.whitehouse.gov/the-press-office/briefing-secretary-clinton-secretary-gates-admiral-mullen-announcement-new-start-tr (last accessed: 24 April 2012).Google Scholar

123 Press release, Robert Gates, Secretary of Defence Interview With Judy Woodruff, The News Hour with Jim Lehrer, Apr. 7, 2009, available at: http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4397 (last accessed: 24 April 2012).Google Scholar

124 Press release, Remarks by the President to CIA Employees (White House, Office of the Press Secretary), CIA Headquarters, Apr. 20, 2009, available at: http://www.whitehouse.gov/the-press-office/remarks-president-cia-employees-cia-headquarters (last accessed: 24 April 2012).Google Scholar