The 11 September Terrorist Attacks and the Rules of International Law

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1 László Valki 1 The 11 September Terrorist Attacks and the Rules of International Law Since 11 September many observers have asked whether the United States had the right to respond to the terrorist attacks against the World Trade Center and the Pentagon by using force? In this respect, the first answers were in the negative. No, this is not war, wrote Alain Pellet on 3 October A war presupposes an armed conflict between adversaries if not identified, at least identifiable [The attacks] are neither an aggression in the legal sense of the word, nor war crimes. One might possibly classify them as crimes against humanity On another level one can, if need be, see the attacks of 11 September a threat to international peace and security in the words of the subsequent Security Council Resolution.. More troubling, by the same Resolution 1368, the Council goes as far as to consider that the acts of terrorism of 11 September justify the exercise of the inherent right of individual or collective self-defence in accordance with the Charter. According to Pellet this is an extremely wide interpretation which hardly conforms to the letter of the Charter, Article 51 You do not respond to terrorism with terror. He added: To bombard Kabul or Kandahar at the cost of thousands of lives of those who are already victims of the Taliban, or even to kill, without due process, the precisely targeted presumed guilty, would be to create more martyrs setting in train a spiral of hate, and denigrating ourselves in the process. 2 A similar view was held by Antonio Cassese: It is obvious that in this case war is a misnomer. War is an armed conflict between two or more States. Here we are confronted with an extremely serious terrorist attack by a non-state organization against a State. 3 He also thinks that the terrorist attacks can be classified as crime against humanity as described by the Statute of the International Criminal Court but could only be punished by national courts. Pierre-Marie Dupuy feared that the reference of the Security Council to the inherent right of self-defence would give the United States a carte blanche to do, alone, what it likes and when it likes. He would have preferred an armed response authorized and controlled by the Security Council as required by Article 51 of the UN Charter. 4 The same opinion was expressed by a Hungarian international lawyer, Boldizsár Nagy. 5 1 László Valki is professor, director of the International Law Department of the Eötvös Loránd University, Budapest. 2 Alain Pellet: No, This is not War! The Attack on the World Trade Center: Legal Responses. European Journal of International Law (EJIL), Discussion Forum. 3 October Antonio Cassese: Terrorism is also Disrupting Some Crucial Legal Categories of International Law. The Attack on the World Trade Center: EJIL 4 Pierre-Marie Dupuy, The Law after the Destruction of Towers. The Attack on the World Trade Center, EJIL 5 Nagy Boldizsár: Önvédelem, háború, jog (Self-defence, War, Law). Élet és Irodalom, 28 September 2001, p. 3.

2 Was it an act of aggression under international law? Even taking into account that the above views had been published just a few weeks after the terrorist attacks, and before the U.S. air campaign commenced, it is difficult to interpret the notion of aggression or self-defence in the way interpreted above. It is true that attacks by a private person or private armies cannot be qualified as aggression. Their acts could only be judged under national law and not under the norms of international law. In such cases the state concerned may defend its territory by national means, i.e., improving its airport security systems, enhancing alertness at its border crossings, bringing the perpetrators to justice, etc. The same seems to be provided by Article 2(4) of the Charter of the United Nations: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. This Article prohibits the use of force by states only and does not refer to the acts of private persons or armies. However, the draft of the Charter was prepared at the end of World War Two when the founding fathers of the United Nations wanted to do something about the classical interstate aggression which had posed the most serious threat to mankind in history just some years earlier. After 1945, it was quickly recognized that states might use force against each other in many indirect ways. In the early Cold War years they sponsored revolutions and upheavals, organized assassinations or the hijacking of airplanes. Therefore many have sought to extend the notion of aggression to some of these acts, because they involved threats to international peace and security against the purposes of the United Nations. That is why in 1952 the United Nations set up a commission to prepare a draft resolution on the definition of aggression. Twenty two years later, in 1974, Resolution 3314 of the General Assembly was adopted. This resolution listed all those acts which can be qualified as acts of aggression. These included, among others, the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out armed attacks against another State, or its substantial involvement therein. 6 According to the resolution only acts of such gravity can be taken into consideration as the bombardment of the territory of another state or the use of any weapons against it or attacking its ground, air, or naval forces. 7 The question, therefore, that came up on 11 September was whether the State of Afghanistan or the Taliban, ruling per cent of its territory were substantially involved in the preparation and perpetration of the terrorist attacks. As quoted above, some well-known international lawyers did not believe in the substantial involvement of the Taliban. By today most analysts have agreed on a positive answer on the question of Taliban involvement. However, on the day of the terrorist attacks, or even at the time of the launching of the counterstrikes in October, the public had very little information about 6 UN General Assembly Resolution 3314 (XXIX) on the definition of aggression, Art. 3(g) (emphasis added). 7 Article 3(b) and (d).

3 the links between the Taliban and the Osama bin Laden s terrorist network. Only a few intelligence services and the governments they worked for could have had a clear picture about which one of them had the upper hand in Afghanistan. The question at this point is, did the Taliban government send terrorist groups into the territory of another state in order to carry out terrorist attacks or could its substantial involvement therein be established? The governments of the great powers, primarily those of the permanent members on the Security Council, did have appropriate information on this issue. Through is permanent members, the Security Council was able to understand the substance of the information gathered on the relationship between the Taliban and Al-Qaida and to translate this into legally relevant resolutions as many as two years prior to the 11 September terrorist attacks. These were very significant resolutions, as they contained not only the presumptions of the U.S. government, but also identical conclusions of the other members of the Security Council. The first Resolution 1193 (1998) was adopted after Taliban troops had occupied Mazar-e- Sharif in August 1998, where they captured the Consulate of Iran and murdered 11 diplomats and one journalist there. In its Resolution the Security Council condemned these atrocities and expressed its grave concern at the continued Afghan conflict which has recently sharply escalated due to the Taliban forces offensive causing a serious and growing threat to regional and international peace and security, as well as extensive human suffering. The resolutions called on the parties to the conflict to comply with their obligations under international humanitarian law and in particular the Geneva Conventions of 1949, and demanded the Afghan factions to refrain from harboring and training terrorists and their organizations and to halt illegal drug activities. However, further measures were not taken. The second Resolution 1214 (1998) was adopted in December 1998 stating that the Security Council was deeply disturbed by the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and the planning of terrorist acts. Although the Security Council did not adopt a legally binding resolution, it called on the states not to sell arms and ammunition to the parties of the conflict. The third Resolution 1267 (1999) was adopted after the Taliban had refused to surrender Osama bin Laden for trial upon American request. This was the first time the terrorist leader was mentioned by name in a Security Council Resolution. The Resolution stated that the Taliban continues to provide sanctuary and training for international terrorists and their organizations which constitutes a threat to international peace and security. Acting under Chapter VII of the UN Charter the Security Council demanded that the Taliban turn over bin Laden to the United States or to a third country where he could be brought to justice. Furthermore, the Security Council banned receiving and servicing Taliban aircraft and ordered the freezing of Taliban funds and other financial resources abroad. The states were obliged to submit a report on the implementation of the resolution on the freezing of bank accounts and funds to the Secretary General within 30 days.

4 The antecedents of the fourth Resolution 1333 (1999) deserve special attention. In the late 1990 s the Russians realized that Afghan mujaheddin who previously had taken part in the fighting against the Soviet invaders in Afghanistan were participating in the war in Chechnya. Russian intelligence found a remarkably high number of Arabs among these Afghans and quickly tracked them back to Osama bin Laden s organization. According to some intelligence reports, Osama bin Laden himself had been to Chechnya several times. Moreover, Moscow also realized that the Taliban had begun to pose a threat to the border of Tajikistan, which was protected by Russian troops. Taking this into account Moscow turned to Washington. After the first rounds of negotiations both sides agreed that the new Security Council Resolution had to be formulated in more severe language. According to various sources, in the second week of May 2000 the collaboration between Al-Qaida and the Chechens further developed in Mazar-e-Sharif. A meeting was held in an Afghan town between Chechen President Aslan Maskhadov, extremist Uzbek Muslim leader Djuma Namangani and Osama bin Laden where they reached an agreement on the coordination of the actions in Chechnya. In his response to this development Serghey Yastrezhembsky, the special envoy of the Russian government to Chechnya, publicly declared the possibility of air strikes against Taliban positions in Afghanistan. In other words, he threatened Afghanistan with the same countermeasures as the United States did after the 11 September attacks. One day later the threats were repeated by General Viktor Kazantsev, the special envoy to the North Caucasus Region. He said that Russia is ready to deliver strikes on terrorist centers in Afghanistan which continue to send weapons and troops to Chechnya. Reportedly, similar statements were made by Serghey Ivanov, then head of the Russian National Security Council and the Minister of Foreign Affairs Igor Ivanov. Later Serghey Ivanov continued to emphasize that in case diplomatic efforts remain futile the deployment of armed forces will become unavoidable. 8 In the spring of 2000, therefore, Russia seemed to be getting ready for another war in Afghanistan. However, there was no real willingness to act behind the Russian threats and on 5 June Russia and the United States initiated formal negotiations with the members of the Security Council on outlining a severe resolution against the Taliban regime. The Russian- American initiative, however, was not supported by China. There followed another round of talks between the Russians and the Americans. On 18 October American Deputy State Secretary Thomas Pickering held negotiations with his Russian counterpart Vyacheslav Trubnikov. As a result of the meetings the UN representatives of the two countries submitted a unique draft resolution in New York. By that time they had Beijing s support as China also had difficulties with its increasingly vocal Muslim population in its southern regions. After such antecedents the UN Security Council adopted Resolution 1333 (2000), which stated that the Taliban had not carried out Resolution It condemned the Taliban for the sheltering and training of terrorists and planning of terrorist acts and reaffirmed its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security. The Security Council noticed that the Taliban bene- 8 Source: press releases of Radio Free Europe and Radio Freedom.

5 fited directly from the cultivation of illicit opium by imposing a tax on its production, and recognized that these substantial resources strengthen the Taliban s capacity to harbour terrorists. The Security Council deplored that the Taliban continued to provide safe haven to Osama bin Laden and his terrorist organization and recalled the fact that Iran s Consulate had been taken by the Taliban and several diplomats and a journalist were slaughtered in Mazar-e-Sharif. The Security Council acting again under of Chapter VII of the Charter of the United Nations demanded that the Taliban should comply with the Security Council Resolution 1267 and cease the provision of sanctuary and training for international terrorists; turn over Osama bin Laden to appropriate authorities in a country where he has been indicted or to a third country where he would be brought to justice and to close terrorist training camps. The Security Council also decided that all states shall introduce a full scale arms embargo against the Taliban; close all Taliban offices and the offices of Ariana Afghan Airlines in their territories, and cease all air traffic connections with Afghanistan and freeze all funds and economic resources of Osama bin Laden and Al-Qaida; The following day the Taliban leadership responded by declaring a boycott on goods produced in Russia or the United States, closing down the remaining UN offices in Afghanistan and expelling their staff and refusing to turn over Osama bin Laden either to the United States or to any other country. The above mentioned Resolutions clearly indicate that the members of the Security Council were deeply convinced that the Taliban government had been seriously involved in providing support to the activities of Osama bin Laden and Al-Qaida, and consequently the Taliban were held responsible for what was happening and will happen on the territory of Afghanistan. After all of these developments, the American administration had little doubt about the identity of the perpetrators of the 11 September terrorist attacks, even if there was no clear evidence in the first 24 hours. As a consequence of the attacks, President Bush initiated an investigation of unprecedented scale and asked to convene a meeting of the Security Council. On 12 September, the Security Council discussed the situation and in its Resolution 1368 (2001) without naming the responsible state made some basic statements. It condemned the horrifying terrorist attacks in New York and Washington, regarding them as a threat to international peace and security, and it recognized the inherent right of individual or collective self-defence in accordance with the Charter. Furthermore, the resolution stressed that the perpetrators, organizers and sponsors of these terrorist attacks those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable. 9 At that time it was not clear whether apart from Taliban harboring Al-Qaida any other organizations or states provided assistance to the execution of the attacks. NATO took up a similar position. Upon the proposal of Secretary General Robertson and not upon an American request the Permanent Session of the North Atlantic Council took the position that if it is determined that this attack was directed from abroad against the 9 (Emphasis added.)

6 United States, it shall be regarded as an action covered by article 5 of the Washington Treaty. In other words, an aggression took place calling for possible collective selfdefense of the member states. 10 A similar position was also taken by the European Council on 21 September. In their conclusions, the Heads of State and the Governments of the EU stated that on the basis of Security Council Resolution 1368 a reposte by the U.S. is legitimate. The Member States declared that they were prepared to undertake actions that must be and may also be directed against States abetting, supporting or harboring terrorists. The member states affirmed that they were prepared to cooperate with the United States in taking the appropriate measures to the extent of their capacities. Then they adopted an action plan on the counter-terrorism measures to be applied in the EU. 11 A week later, on 28 September, the Security Council held another session and adopted Resolution 1373 (2001). The document referred again to the right of self-defense and the fact that terrorism threatens international peace and security. It added a statement that terrorism and its support is inconsistent with the purposes of the UN. 12 Then the Security Council also acting under Chapter VII decided that all states shall prevent and suppress the financing of terrorist acts; freeze funds and other financial assets associated with terrorism; refrain from supporting any organizations or persons that are involved in terrorist activities and deny safe haven to those who finance, plan, support, or commit terrorist acts. From the above it is obvious that the Security Council imposed an extremely comprehensive and legally binding program for fighting terrorism. Although it did not specifically authorize any state to carry out military countermeasures, the fact that three permanent members of the Security Council (France and Great Britain and later Russia) opened their airspace for military actions and the fourth (China) ensured the United States of its support proved to be a significantly relevant legal step in the war against terrorism. It proved that since 11 September the United States had been in a permanent state of self-defense against those states that harbor and support the organizers and perpetrators of terrorist acts. On 2 October 2001 the highest organ of NATO, the North-Atlantic Council, returned to the question of the identity of the real supporters and planners of the terrorist attacks. That day the special envoy of the United States informed the Council on the first findings of the investigation. On the basis of the information gathered Secretary General Robertson announced at a press conference after the meeting that it has been clearly determined that the individuals who carried out the terrorist attacks belong to the Afghan terrorist organization headed by Osama bin Laden and protected by the Taliban regime. Therefore the terrorist acts have to be regarded as attacks from abroad and are related to Article 5 and NATO will have to make its further decisions on this basis. 13 References to 10 Statement by the North Atlantic Council. Press Release (2001) 124, 12 September Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September See the wording of Article 2(4) quoted above ( inconsistent with the Purposes of the United Nations.) 13 Statement by NATO Secretary General, Lord Robertson. NATO Update, 2 October 2001.

7 Article 5 meant that every member state of the Alliance qualified the 11 September events in New York and Washington as aggression in terms of international law, and held the Taliban regime of Afghanistan indirectly responsible for it. Two days later, on American requests, the Permanent Council agreed on common measures aimed at suppressing terrorism (for example to open their airspace to the U.S. military aircraft and to share information gathered by national intelligence agencies, provide increased protection of American interests and those of the other allied states, etc.). 14 Nothing was said, however, about whether the military power of NATO would directly participate in the war against terrorists and the Taliban regime. The United States reserved the right to make a decision on this issue and wished to consult only with those states of the Alliance that were going to directly participate in the military actions but outside the framework of the Alliance. The U.S. government did not want to repeat the war by committee syndrome experienced during the Kosovo air campaign. This solution was not popular with those Western European politicians who would have preferred a joint NATO action but as it turned out later it was doubtlessly more effective. Finally, on 16 January 2002 the Security Council adopted Resolution 1390 which reaffirmed all its previous resolutions with regard to Osama bin Laden, al-qaida and the Taliban. On that day the air campaign of the U.S. and its had been in its 15 th week. Can the military counter-measures be qualified as legitimate self-defense? The American counter-offensive launched on 7 October was called an act of self-defense and reported as such by the United States to the Security Council. In accordance with Article 51 of the UN Charter, if an armed attack occurs, every state has the inherent right of individual or collective self-defense 15 and that can be exercised until the Security Council has taken measures necessary to maintain international peace and security. However, Pellet, Dupuy and Nagy came to a conclusion that a) the behavior of the United States cannot be regarded as self-defense because Washington launched the counter-offensive not immediately after the attacks but almost a month later, and moreover, against a state located several thousand kilometers away; b) when executing counterstrikes, the United States might have used force against terrorists or the state harboring them only if the Security Council had authorized it to do so. The inherent right of self-defense has limits, wrote Hungarian international lawyer Boldizsár Nagy. It was the U.S. Secretary of State Webster who put down his immortal words in 1841 that have remained valid even today. In 1837 the British, referring to the 14 Statement to the Press by NATO Secretary General Lord Robertson on Implementation of Article 5 of the Washington Treaty following the 11 September Attacks against the United States. NATO HQ, October The English version of the UN Charter uses the expression inherent right too.

8 right to self-defense, entered the territory of the United States, then took and set fire to the ship Caroline which was supporting Canadians who were revolting against the British Empire. The ship plunged over Niagara falls resulting in the death of several innocent people. During the act, Webster noted, the party referring to this has to prove the necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation. 16 The same view was expressed by Cassese and Pellet. In the opinion of Pellet the use of armed force must be subject to the authorization of the Security Council which has not (yet) been given. 17 According to this view, for the party concerned, there is no right of a delayed response to an armed attack with the use of force. According to Cassese the use of force by the victim state [should be] directed to repel the armed attack of the aggressor state [and] must be proportionate to this purpose of driving back aggression. 18 In accordance with this thesis the party concerned can do almost nothing apart from armed defense and an immediate counterattack because it has to stop its response after a certain stage. Where and when is this stage exactly reached? There is no answer either from Nagy nor from Pellet. The more than 150-year-old immortal words of Webster, in any case, were applicable only for defense against traditional aggressions and only under certain conditions. Starting from the Webster thesis, therefore, a large number of legally recognized counterstrikes should have been called illegal, e.g. the use of force by Great Britain to take back the Falkland Islands from Argentina in The Argentinean forces landed on the Islands on 2 April while the massive British counterstrike was launched only many weeks later, on 21 May. The British needed some time to build up their expeditionary forces and to cover the huge distance between Britain and the theater of war. On the basis the considerations suggested by Nagy and Pellet, all delayed self-defense should be taken as illegal. However, this would hardly suit military and political realities. As far as non-armed conflicts are concerned the Webster thesis is absolutely inapplicable. Moreover, it is the terrorists who could make the best use of it. In the case of a terrorist act the attackers and their supporters remain either unknown or become identified only after some of them get killed during the attack, while others disappear and hide in remote countries where according to Boldizsár Nagy they must not be bothered any longer. On the basis of his interpretation any action against Osama bin Laden and his organization would have been possible only on 11 September and only if they had been, say, directing the execution of the attack on a mobile phone on board of a yacht anchored in New York City harbor. Otherwise President Bush would have had only one opportunity: to turn to the UN in order to convene the Security Council, which would either have given a goahead to coalition war (as before the Gulf War) or not (as in the case of Kosovo). The opinion of the above authors regarding Security Council authorization is also difficult to accept. According to Boldizsár Nagy the essence of the world order after 1945 has been the principle that the United Nations, and within it the Security Council, have 16 Nagy Boldizsár: Önvédelem, háború, jog (Self-defence, War, Law). Élet és Irodalom, 28 September 2001, p Pellet: op. cit. 18 Cassese, op. cit.

9 the ultimate monopoly on the use of force. That is why both individual and collective self-defense has to be implemented with the knowledge and approval of the Security Council while in ideal cases it has to be replaced by UN actions on the basis of collective security. 19 However, one who thinks that armed actions for self-defense with some delay can be launched only with the authorization from the Security Council misunderstands the text of Article 51. On the contrary, Article 51 provides that as long as the Security Council has put the issue on the agenda and taken appropriate measures, self-defense can be exercised without restriction. The same can be found in Article 5 of The North Atlantic Treaty. In accordance with Article 5 the collective defensive measures of NATO shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. Therefore, until an opposite Security Council resolution, Washington has the right to decide when to act, against whom and how, without waiting for further UN authorization. The response of Boldizsár Nagy to this is that the two Security Council resolutions adopted after 11 September decided the question on the basis of Article 51. According to him various measures were ordered by the Council (the planners, organizers, supporters of the terrorist attacks should be brought to justice, etc.), consequently it has already acted as described in Article 51, and did not provide the United States with authorization for the use of force in self-defense. In the interpretation of Nagy the United States does not seem to be a member of the Security Council. Or at least as if the Security Council were a body independent from Washington, and able to make a decision sine ira et studio about what is compatible with international law (i.e. whether Washington can exercise its right of self-defense). However, the present international legal order is based on the fact that the ultimate control over the use of force is to be exercised by the Security Council, of which the U.S. is one of the permanent members and may exercise its veto right. In 1945, the founding fathers determined who will be the permanent members of the Security Council possessing veto right(s). The consequences for the functioning of the Security Council are well known. One of these consequences is that the great powers possessing the right of veto have a chance to consider whether to bring their own cases before the Security Council or not. Then they can consider whether or not to vote for the draft resolution regarding their case. If they take the first step, they will do so not in order to have their freedom of action limited. The representative of the U.S. brought the case before the Security Council on the day after the terrorist attacks presumably not with the objective of forgoing its right of self-defense. It is also highly improbable that the Americans would have wanted to have an authorization for military countermeasures but as a consequence of a dispute among the permanent members they withdrew it. For the Americans the important issue was to have a Security Council resolution condemning terrorism and recognizing the right of self-defense. They did not need an authorization for self-defense as they were allowed to exercise it without any authorization from the Council. 19 Ibid.

10 Cassese admits in his paper that the magnitude of the terrorist attack on New York and Washington may perhaps warrant the broadening of the notion of self-defence. I shall leave here, he added, in abeyance the question of whether one can speak of instant custom, that is of the instantenous formation of a customary rule widening the scope of self-defence as layed down in Article 51 of the UN Charter and in the corresponding rule customary law. It is too early to take a stand on this difficult matter. 20 Cassese could be less careful asserting that the notion of self-defence is now wider than in 1841 or in All that has been argued by the author of this paper indicates that the way and the magnitude of military counter-measures by the U.S. and its allies was accepted by a major part of the international community, including the rest of the permanent and nonpermanent members of the Security Council. Moreover, this did not happen on only one occasion but during the unfolding developments with regard to Afghanistan dating back to As far as the question of proportionality is concerned, the final answer can be given, of course, only after the end of the military operations. According to Nagy international law does not recognize a proportionate self-defence which would include acquiring armed control over the territory of the [aggressor] state. 21 What international law requires is not quantitative but substantial proportionality. Above all, it prescribes for the state concerned not to punish the other state, i.e., Afghanistan. The single objective of the American counteroffensive can be only to prevent any further attacks perpetrated against its territory or the Western World in general. This can be achieved exclusively by capturing Osama bin Laden and destroying his terrorist network. In the past years the terrorist organization significantly infiltrated into the Taliban and as a result the two became politically and practically integrated and indistinguishable. Since 11 September it has been clear that without overthrowing the Taliban the activity of the Al-Qaida cannot be eliminated either. As neither the Security Council resolutions nor the U.S. ultimatum had any effect, the Americans and their allies had only one choice left: to destroy the infrastructure of the Taliban and to help overthrow its political power by the Northern Alliance. In fact, the Americans never acquired an armed control over the whole of Afghanistan. As for the air campaign, the number of the sorties and the amount of bombs and guided ammunitions dropped on various targets has been rather large. But according to the information available a lower number of civil facilities and installations have been affected by the air strikes than during the 1999 NATO air campaign over Yugoslavia and the number of civil casualties has also been lower. At the same time, however, significant waves of displaced people entered the neighboring countries in search of refuge and forecasting the threat of another humanitarian disaster. Of course, the international and domestic media monitored the news of the attacks with ambiguous emotions and there were many who considered even a single casualty or refugee as unacceptable. Nevertheless, it is highly improbable that the direct and collateral damage has exceeded those inflicted on the United States on 11 September. 20 Cassese: op. cit. 21 See the dispute between Boldizsár Nagy and the author of this paper in Fundamentum, 2001, no. 4. p. 44.