Austrian Review of International And European Law 2003 Austrian Review of International and European Law

AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW Volume AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW Volume 8, 2003 Editor-in-Chief Gerhard Loibl Executive Editor Stephan Wittich MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON Published with support from the Federal Ministry for Education, Science and Culture, Vienna, Austria A CIP Catalogue record for this book is available from the Library of Congress Suggested citation: ARIEL (2003) Manuscripts, editorial communications and book reviews as well as books for review are welcomed and may be sent to: Editor, Austrian Review of International and European Law c/o Department of International Law University of Vienna Universitätstraße A-1090 Vienna, Austria ariel.int-law@univie.ac.at http://www.univie.ac.at/intlaw/ariel.htm Printed on acid-free paper ISBN 90-04-14454-4 © 2005 Koninklijke Brill NV, Leiden, The Netherlands http://www.brill.nl Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP This publication is protected by international copyright law All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW EDITOR-IN-CHIEF Gerhard Loibl Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria EXECUTIVE EDITOR Stephan Wittich Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria ASSISTANT EDITORIAL MANAGER Ursula Kriebaum Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria EDITORIAL BOARD F Cede, Vienna, Austria P Fischer, Vienna, Austria G Hafner, Vienna, Austria W Hummer, Innsbruck, Austria W Karl, Salzburg, Austria H Neuhold, Vienna, Austria M Nowak, Vienna, Austria C Schreuer, Vienna, Austria K Zemanek, Vienna, Austria ADVISORY BOARD W Balekjian, Glasgow, Scotland J Crawford, Cambridge, England P.-M Dupuy, Paris, France T M Franck, New York, U.S.A K Ginther, Graz, Austria G Handl, New Orleans, U.S.A K Herndl, Strasbourg, France M Koskenniemi, Helsinki, Finland H F Köck, Linz/Auhof, Austria S C McCaffrey, Sacramento, U.S.A A Randelzhofer, Berlin, Germany W M Reisman, New Haven, U.S.A M Rotter, Linz, Austria B Simma, The Hague, the Netherlands L Sucharipa-Behrmann, Vienna, Austria C Tomuschat, Berlin, Germany H.-J Uibopuu, Salzburg, Austria F Weiss, Amsterdam, The Netherlands L Wildhaber, Strasbourg, France Manuscripts, editorial communications and book reviews as well as books for review are welcomed and may be sent to: Editor, Austrian Review of International and European Law c/o Department of International Law University of Vienna Universitätstraße A-1090 Vienna, Austria ariel.int-law@univie.ac.at http://www.univie.ac.at/intlaw/ariel.htm i Contents Agora: Is the Nature of the International Legal System Changing? Gerhard Loibl & Stephan Wittich Introduction Karl Zemanek Is the Nature of the International Legal System Changing? Sir Franklin Berman What Does ‘Change’ Mean? International Law vs the International Legal System 11 Michael Bothe No Need to Panic! Or: plus ỗa change, plus c’est la même chose 17 Antonio Remiro Brotóns New Imperial Order or (Hegemonic) International Law? 25 Thomas M Franck After Austerlitz: The International System in the Age of Rampant American Unilateralism 35 Andrea Gattini Two Faces of Hegemony 49 Martti Koskenniemi The Empire(s) of International Law: System Change and Legal Transformation 61 Vaughan Lowe Is the Nature of the International Legal System Changing?—A Response 69 Donald McRae United States Unilateralism: Cause or Symptom? A Brief Response to Professor Zemanek 75 viii Austrian Review of International and European Law Georg Nolte The International Legal System: Is its Nature Changing? 81 Mary Ellen O’Connell Who Helps the Hegemon? 91 Alain Pellet Can International Law Survive US “Leadership”? 101 Anne Peters The Growth of International Law between Globalization and the Great Power 109 Pemmaraju Sreenivasa Rao Is the Nature of the International Legal System Changing?—A Response 141 August Reinisch Does US Hegemony Change the Nature of the International Legal System?— A Reply to Professor Zemanek 153 W Michael Reisman & Scott Shuchart Unilateral Action in an Imperfect World Order 163 Hélène Ruiz Fabri Is the Nature of the International Legal System Changing?—A Reply 179 Eric Suy Is the International Legal Order in Jeopardy? 187 Christian Tomuschat A New World Order Dominated by a Hegemon? 197 Bakhtiyar Tuzmukhamedov Keeping Pace with the Times? 205 László Valki Merely the Notion of Self-Defence is Changing 211 ix Francisco Orrego Vicuña Has the Nature of International Law Changed? Le Plus Ça Change… 221 Rüdiger Wolfrum Reflections on the Development of International Treaty Law under the Auspices of the United States Hegemony and Globalization 229 Xue Hanqin What Has Been Changed of the International Legal System? 235 Articles Thomas Jaeger We Hold These Truths to Be Self-evident, perhaps—Side-stepping the Commonality of ‘Common Principles’ and Fundamental Aims in EU Law 247 Bernd-Roland Killmann Procurement Activities of International Organizations—An Attempt of a First Insight in Evolving Legal Principles 277 Current Developments Emanuelle Cerf Legal Reforms in Bosnia and Herzegovina versus Good Common Sense 303 Stephan Wittich Recent Austrian Cases on Questions of Jurisdictional Immunities 309 Documentation Michael Schoiswohl Austrian Measure for Victims of National Socialism 325 x Austrian Review of International and European Law Austrian Practice in International Law (2001/ 2002)/ Österreichische Praxis zum Internationalen Recht (2001/2002) Structure 411 Stephan Wittich & Michael Schoiswohl Part I: Austrian Judicial Decisions Involving Questions of International Law/ Österreichische Judikatur zum internationalen Recht 423 Christina Binder, Isabelle Buffard, Gerhard Hafner & Katrin Hagemann Part II: Austrian Diplomatic and Parliamentary Practice in International Law/ Österreichische diplomatische und parlamentarische Praxis zum internationalen Recht 503 Book Reviews William E Butler, Russian Law (Ulrike Köhler) 569 Andreas O’Shea, Amnesty for Crime in International Law and Practice (Michael Schoiswohl) 571 Hans Rudolf Trüeb, Umweltrecht in der WTO Staatliche Regulierungen im Kontext des internationalen Handelsrechts (Erich Vranes) 587 Erika de Wet & André Nollkaemper (eds.), Review of the Security Council by Member States (August Reinisch) 590 Book Notes Patrick Capps/Malcolm Evans & Stratos Konstantinidis (eds.), Asserting Jurisdiction International and European Legal Perspectives (August Reinisch) 593 Nina H.B Jørgensen, The Responsibility of States for International Crimes (Gerhard Hafner) 594 Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (August Reinisch) 595 582 Austrian Review of International and European Law crimes covered by the Geneva Conventions not international crimes? In other words, would the clause not lose its entire sense if one followed this logic? The examples discussed by O’Shea in Chapter and on pages 262-263, particularly the discussion of the South African case (AZAPO), would provide examples to the contrary He simply attributes less significance to them by asserting that “some [of these laws and decisions] not in fact constitute evidence of a belief on the part of these states that there is no maturing or existing obligation to prosecute international crimes” and that “they were concluded in circumstances where the state really had no other alternative” (p 262) Provided that the latter were true, would that not signify that states are not prepared to concede their right to grant amnesties even for international crimes and therefore reject a general obligations to prosecute in such circumstances? One may just wonder how many exceptions and exceptional circumstances in which, as O’Shea puts it, the “rule of law was in political suspension” (p 262), can be tolerated to operate against such a general rule The logical flaw in such an approach lays in the sequencing of the emergence of such a norm: while his reasoning would seem coherent in a context in which the general rule had firmly arisen and subsequently became subject to certain exceptions, we are faced with a situation in which the general rule is being formed on the basis of a doctrinal consensus that the prosecution of international crimes should not be overridden by national amnesties amid frequent practice to actually pursue that very aim Stating that “the older customary right to agree on amnesty [in the case of peace treaties] may not be viewed as inconsistent practice, but as surviving exception to the new customary duty in the particular moment in time of a society emerging from conflict or oppression” (p 264) does not only serve as an splendid example of such retroactive reasoning, but also leaves the reader with the question of what if such exceptional circumstances are always invoked in these instances Of course, one may always pull out the rabbit from the magical hat by referring to the Rome Statute as the cleansing manifestation of state practice and opinio iuris (p 263) This, however, may leave the critical reader somewhat dissatisfied, particularly when bearing in mind that the Rome Statute has yet to demonstrate its implementability in practice Of course, it is relatively simple to be critical in an area of international law, which remains subject to a somewhat divergence between international commitment and national practice In view of recent, quite forceful, statements by the Secretary General relevant to the topic, such as the Secretary General’s report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,8 would at least strongly point towards the reinforced commitment to the prosecution of crimes punishable under international law and the emergence of a customary rule accordingly But, at this point in time, to speak of the existence of such a rule may not adequately reflect current realities, nor satisfy the The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies—Report of the Secretary General, UN-Doc S/2004/616 (3 August 2004) Book Reviews 583 need in post-conflict situations, such as the case of Afghanistan, in which the need for reconciliation and thus the need to accommodate political realities on the ground may prove to become the overriding objectives Be it as it may, O’Shea concludes that, “in the current climate of state practice and opinio iuris, the current obligations to prosecute or extradite cover the most serious and systematic violations of human rights and humanitarian law” (p 265) Interestingly, he adds that, “the duty to punish extra-judicial executions and customary crimes other than torture and genocide, while emergent, may be avoided through the negotiation of a peace treaty between states This would also apply to crimes against humanity and serious violations of human rights In the case of purely civil wars, an amnesty covering these crimes would need to be negotiated between the state and the international community as a whole, possibly through the agency of the UN.” (p 265) In other words, the duty to prosecute for crimes other than torture and genocide would be negotiable despite the customary nature of the obligation—a compromise, which may certainly reflect the political needs and reality, but barely withholds the author’s previous findings as to the customary nature of these obligations After dealing with the core questions as to the compatibility of domestic legislation providing for amnesties in relation to crimes punishable under international law and breaches of human rights obligations, O’Shea shifts the focus to the civil liability dimensions of amnesties in relation to the alleged duty to prosecute arising with regard to the former (Chapter 10, pp 267-293) Recognizing that “there is no general international civil law which directly binds the individual and allows an international civil claim to be brought against an individual for his wrongs”, he assesses the issue of civil liability vis-à-vis from the perspective of international human rights law, “which requires that a victim of human rights violations receive reparations wither through national courts or directly from the state, otherwise having judicial competence” (p 267) Accordingly, he sets out to analyze the “international normative limits on the extension of amnesty to civil liability and the corresponding state obligation to provide reparations” (p 267) In this regard, he notes the value of reparation of victims for human rights violations in furtherance of reconciliation and transitional justice (p 270) In fact, in cases in which crimes of the past have been addressed only decades after they actually had been committed, such as Austria and Germany, reparations become the primary vehicle for reconciliation for the immediateness to the crimes may have been lost over the years and financial measures may combine the need for official acknowledgement with a sometimes rather symbolic gesture to correct the wrong done in monetary terms However, given the inadequacy of judicial institutions to deal with civil liability on a mass claims basis in furtherance of reconciliation, alternative means, such as compensation funds, may be preferable over lengthy and costly civil law suits O’Shea’s assessment of whether there is a customary rule in favour of a right to compensation is that “there is a general obligation on the state to ensure that victims receive reparation for wrongs done to them deriving from the obligation to ensure rights in conjunction with the rights to fair trial and effective remedy Nonetheless, the state does appear to have some latitude in the execution of this obligation” (p 584 Austrian Review of International and European Law 277) In addressing the question, whether amnesties may fall within this latitude, he argues that, “there can be little doubt that amnesty from civil liability for human rights violations can only be reconciled with the exigencies of international law in so far as the state has furnished some mechanism of investigation and some form of reparations” (p 278) He adds that, “in circumstances of radical transformation to democracy or emergence from all-consuming conflict, the role of law in facilitating the transition may require a reasonable limitation on the right of access to court providing that this is proportional to the legitimate aim pursued” (p 284) While this approach would seem reasonable, also in light of recent compensation measures for wrongs committed in the past, his proposition that “an international tribunal would have to assess whether the extent of the measures is proportional to the legitimate aim pursued” and that “this would appear to be the position in terms of customary or treaty law” (p 292), is not sustainable in the reviewer’s view Neither O’Shea’s elaborations nor state practice would seem to actually support such a requirement In the penultimate Chapter 11, O’Shea attempts to reconcile municipal amnesties with the international legal requirements based on the findings of the previous chapters acknowledging that “somehow, the requirements of national peace and reconciliation in particular conflicts and the radical solutions adopted need to be reconciled with the long-term requirements of international peace and justice” (p 294) This tension cannot be overemphasized in practice, as manifested by numerous post-conflict situations where a balance needs to be struck between addressing the past and moving forward on the state-building agenda as a means of conflict prevention and reconciliation O’Shea rightly observes that “there has been on one side a perceptible growth in the use of amnesty laws in the context of transition, and on the other an increasingly sophisticated criminal justice system to cater for a progressively inter-connected world” and argues that the South African model has given hope that “these two divergent developments might not in fact be irreconcilable” (p 301, footnotes omitted) He sees the key to such reconciliation in “the creative development of amnesty jurisprudence by state organs” (p 301), in particular through recourse to the link between the offences and the conflict, which—according to O’Shea—”is expressed in terms of the concept of the political offence, which is sufficiently central to the notion of amnesty and adequately flexible in meaning to serve as a useful basis for such attempts at reconciliation by national judicial structures” (p 302) Referring to the South African model, he thus proposes that the notion of ‘political offence’ would exclude the most serious crimes against international law by applying the principle of proportionality, in particular with regard to the relationship between the act and the political objective pursued (p 305) However, this attempt while desirable de lege ferenda predisposes that municipal legislator incorporate the mechanism of ‘political offence’ and shape it in a manner reconcilable with international standards, i.e mindful of the obligations to prosecute serious crimes against international law At the same time—as repeatedly stressed by O’Shea—individuals falling within the purview of municipal amnesties are not exempted from international ‘jurisdiction’ for their crimes (pp 307-310) The latter aspect naturally entails the risk of diminishing the value of national amnesties as a tool to promote peace and reconciliation for Book Reviews 585 societies in transition, given that individuals willing to exchange the truth for national immunity may still be open to international prosecution (p 310) O’Shea accordingly assesses whether a case can be made for international recognition of amnesties based on state practice and the practice of international criminal tribunals to find that both would rather lean towards developing the law in a direction excluding impunity for crimes against international law (p 312 and pp 314-315) Similarly, he argues against construing Article 53 of the ICC Statute, which grants the Prosecutor some discretion to abstain from initiating investigations if there are substantial reasons to believe that such an investigation would not serve the interests of justice, in a broad manner that would accommodate the recognition of national amnesties (p 318) According to O’Shea, the solution to resolve the intricate tensions between the need for amnesties in furtherance of national peace and reconciliation on the one hand and the international demand to end the culture of impunity on the other, is to be found in the international community’s endorsement of amnesties through special international agreements on a case by case basis (p 319) Such endorsements would preserve the imperatives of global justice, while taking into consideration the need for amnesties within the context of transitory societies (p 319) In furtherance of such agreements, he proposes that, “a set of guidelines should set out the conditions under which the international community could consider the prospect of the international recognition of an amnesty and the mechanism for ensuring legitimate representation of the interests of the international community as a whole” (p 319) Spinning it further, he argues in favour of incorporating these guidelines in a Protocol to the Rome Statute (p 319), which to the reviewer’s mind may be desirable, but quite hypothetical in terms of actual impact given the limitations it would impose on the states’ ability to provide for amnesties as a matter of their domestic jurisdiction The substantive part of the book concludes with a summary of key principles aiming at the reconciliation of the needs served by amnesties with developments in international criminal law (Chapter 12, pp 320-329) Based on his findings in previous chapters, O’Shea re-iterates his argument that “for an amnesty laws to comply with existing international law it should exclude from its scope a category of the most serious crimes against international law” and clarifies that “offences covered by the aut dedere aut iudicare principle, as well as those simply covered by an obligation to prosecute, should be exempted from the purview of the amnesty law” (p 322) To the list of offences falling within the latter framework (genocide, crimes against humanity, etc.), he adds that, “offences should [also] be excluded where there is an emerging customary practice requiring such prosecution or because such offences are covered by the jurisdiction of the future International criminal Court Here one should include gross violations of human rights not falling under any of the previous categories” (p 323) Thus, “in broad terms, […] amnesty laws in principle should exclude all serious crimes against international law” (p 323) However, based on his previous elaborations, O’Shea envisages that “there may be cases where the state can convincingly show that national prosecution of offenders who have committed serious international crimes would seriously jeopardize peace or national reconciliation” and thus argues that “it should be possible in such cases for an agreement to be reached between the 586 Austrian Review of International and European Law parties to the conflict or former conflict and the legitimate representatives of the international community to exempt the state from its duty to prosecute the offenders” (p 324) The United Nations, according to O’Shea, would be such a ‘legitimate representative’ with treaty making capacity (p 324) To the reviewer’s mind, however, it is highly questionable whether such an agreement could and would be entered into by the United Nations organization In particular, it would raise challenging issues in relation to the UN’s mandate and its reinforced efforts towards the ending of impunity Moreover, one may conceive of possible (legal) complexities in cases in which the Security Council, the General Assembly and the Security Council may disagree on whether an amnesty would be appropriate In the Appendix, O’Shea presents a “Draft Protocol to the Statute of the International Criminal Court on the Proper Limitations to Municipal Amnesties Promulgates in Times of Transition”, which reflects his key findings (p 330-336) Overall, the author is to be congratulated for the comprehensive and analytical treatment of a subject, which unquestionably has proven to be the source for increasing tensions between the growing framework of international human rights as well as criminal law on the one hand, and national practice following armed conflict on the other Despite minor criticisms, any practitioner or scholar interested in the topic will appreciate O’Shea’s effort to doctrinally analyze the controversial relationship between international law and municipal amnesties His emphasis on the practice of states as well as the theoretical underpinnings in relation to amnesty laws, juxtaposing both to the applicable international legal framework, is in itself a valuable contribution, which bears potential to further promote an informed dialogue on the challenges that remain While the author may, at times, be criticised for rushing ahead on the path of progressive development (criticism which anyone attempting to develop the ‘law’ will inevitably face), he offers an important doctrinal framework within which both, current attempts to end impunity for crimes against international law and the need for reconciliation may be reconciled Unfortunately, it may be expected that the dynamics of human interaction will continue to fuel scholarship with cases of conflict and transitional (in-) justice It is to be hoped, that academic contributions, such as the study of “Amnesty for Crime in International Law and Practice”, will form the doctrinal basis on which a comprehensive international legal regime in deterrence of serious violations of international law could be built Michael Schoiswohl Programme Officer and Legal Advisor UNDP Afghanistan, Kabul Book Reviews 587 Hans Rudolf Trüeb, Umweltrecht in der WTO Staatliche Regulierungen im Kontext des internationalen Handelsrechts Schulthess Juristische Medien AG, Zürich, 2001, xlix+540 pp., ISBN 7255 4245 7, CHF 148.00 The relationship between the world trading system and efforts to protect the environment has attracted a significant amount of public and scholarly attention in recent years But despite the vast number of studies published on this topic over the last decade, there are still relatively few works that provide an analysis that is both comprehensive and thorough One exception is Hans Rudolf Trüeb’s Habilitationsschrift, which examines several of these questions in considerable detail Trüeb divides his thesis into eight chapters After a brief introduction (Chapter 1, pp 3-19), he addresses the relative importance attributed to environmental protection within the institutional setting of the WTO and the WTO agreements (Chapter 2, pp 21-44) Having set the stage, Trüeb next gives a detailed account of the state of play regarding the application of central GATT provisions (Articles III, XI and XX) in relevant dispute settlement decisions under the “old” GATT 1947 and the WTO This overview includes decisions until the 2000 panel report in EC—Asbestos, but unfortunately not important and much-discussed Appellate Body decision in this case.9 Nevertheless, this concise overview constitutes a good introduction for any scholar interested in this topic (Chapter 3, pp 45-74) In Chapter 4, which can be regarded as a first central part of his book, Trüeb critically reviews this dispute settlement practice, touching upon pertinent procedural issues, the interpretative approach of panels and the Appellate Body, and questions of substantive law Among the many issues discussed by the author in this Chapter, one should in particular draw attention to his conclusions regarding extraterritorial regulations and the discussion of production and processing methods (PPMs) in WTO law: Unlike several commentators, Trüeb rightly submits that following the Appellate Body decision in US-Shrimp, the dispute regarding the permissibility of measures by which a WTO-Member seeks to protect resources which are located outside any state’s territory has become obsolete (p 100); this reading of the judgment has meanwhile been confirmed by the Appellate Body’s second ruling in this case which was handed down after the publication of Trüeb’s book.10 Moreover, Trüeb takes the position that different production measures may affect the determination of the likeness of products under Article III of the GATT (p 120) As this conclusion arguably WTO Appellate Body Report, European Communities—Measures Concerning Asbestos and Asbestos-Containing Products, WT/DS/135/AB/R, adopted April 2001; on this case see e.g R Howse and E Türk, The WTO Impact on Internal Regulations—A Case Study of the Canada—EC Asbestos Dispute, in de Burca and Scott (eds.), The EU and the WTO Legal and Constitutional Issues 283 (2001) 10 WTO Appellate Body Report, US—Shrimp, WT/DS58/AB/RW, adopted 21 November 2001, para 138 588 Austrian Review of International and European Law presupposes that greater weight is given to consumer preferences in determining whether two products are like, it is worth emphasizing, on the one hand, that a later judgment of the Appellate Body has in fact underlined that consumer preferences may be pivotal in decisions on likeness, 11 but also that this case did not concern process-based measures, so that the issue was at that stage not really settled Trüeb for his part quite convincingly concludes that process-based and product-based trade measures should be treated in the same manner under WTO law (117 ff; see also 361 ff) Chapter 5, which provides an—easily comprehensible—economic analysis of environmental regulations, distinguishes this work from many other legal publications in the “trade and environment” field The author challenges various assumptions that partly underlie WTO dispute settlement practice, such as, in particular, the priority given to multilateral approaches to environmental protection over unilateral efforts (134 ff, 144, 162), and the ranking of environmental measures, as has arguably been established in WTO practice He argues that prohibitions, taxes and certificates are, inter alia, more efficient and transparent than measures such as labelling (194 ff) In his next step, Trüeb analyses the points of contact between international trade law and international environmental law He begins with some brief remarks on the problem of how to deal with conflicts between multilateral treaties, emphasizing that while most writers deal superficially with this issue, considerations of conflicts of norms can be dispensed with whenever state measures are non-discriminatory (pp 222-224) This leads him to consider in more detail how the interface between the international trade and environment regimes can be harmonized through interpretation In this context, Trüeb devotes considerable attention to Article 31(3)(c) VCLT, according to which an interpreter shall take into account “any relevant rules of international law applicable between the parties to the dispute” The author warns that this method may incur a risk of judicial activism (“Inversion” in the sense of Ph Heck), since a panel may be tempted to choose from the “everflowing fund” of international instruments those which best suit the intended interpretative “result” (p 227) In remarkable affinity to other recent studies on the temporal and personal scope of Article 31(3)(c) VCLT in WTO dispute settlement,12 Trüeb argues that WTO law should be interpreted in the light of international law norms that are in force at the time of a concrete dispute, but also that only such rules may be taken into account that are binding on all or at least the vast majority of WTO-Members (pp 250, 252) Trüeb concludes this part of his treatise by examining the principles of international environmental law that might inform trade rules He submits that concepts such as “common concern”, “common heritage of mankind”, the prohibition of significant transboundary harm, “sustainable development” and the like generally only give little 11 Appellate Body report, EC-Asbestos (precited), para 87 ff 12 J Pauwelyn, Conflicts of Norms in Public International Law How WTO Law Relates to other Rules of International Law 260-268 (2003) Book Reviews 589 guidance on how to interpret WTO disciplines (pp 253-309) Trüeb then attempts to provide a synthesis of his findings in the form of a comprehensive scheme according to which domestic environmental measures can be assessed in terms of their WTO conformity (chapter 7, pp 313-395) At risk of doing injustice to the complete picture, three main points may be addressed First, the author deals rather briefly with the problem of likeness and barely with the issue of “less favourable treatment”, i.e the second criterion under Article III(4), although these issues have continued to engage WTO experts (pp 341 ff).13 This may be due to the fact that Trüeb presents himself as an advocate of the “aims and effects” test, which he seeks to justify on teleological grounds (345, 346 ff; see also 111-115) In order to avoid misunderstandings, one has to point out, first, that there is no commonly accepted version of the aims and effects test Second, according to this test, as it was originally applied in two GATT 1947 panel reports, two products were deemed to be unlike if a regulatory measure which imposed different treatment on these products pursued a non-economic aim Thus, this test risked mixing up the issues of determining likeness, identifying less favourable treatment and deciding on the justification of a measure which pursues non-protectionist goals It must be emphasized that Trüeb quite obviously does not have this problematic “original” version of the test in mind when he advocates an examination of “aims and effects” Trüeb in fact submits that Article XX, the general exception clause of the GATT, should be read as a guide to the interpretation of other GATT provisions, not as a self-standing norm of justification (“Rechtfertigungsgrund”, p 350) While one can indeed speculate about different ways to introduce a rule of reason into WTO disciplines, it must be stressed that WTO jurisprudence has so far consistently rejected attempts to revive the aims and effects test, and treats Articles III and XX as distinct norms Finally, while Trüeb briefly addresses the TBT Agreement in various instances, one would have welcomed a more extensive treatment of the intricate issues involved in the relationship between GATT and this agreement, which is of particular interest in the “trade and environment” area.14 On the other hand, one must concede that such additional analyses might have overloaded this treatise Trüeb concludes his study by examining a series of domestic regulations in the light of WTO law Although this final chapter is devoted to Swiss law, the author’s 13 Cf e.g the much debated ruling of the Appellate Body in EC-Asbestos (above) concerning likeness and less favourable treatment in paragraphs 87 ff and 100; on this cf e.g L Ehring, “De Facto Discrimination in World Trade Law National and Most-Favoured-Nation Treatment—or Equal Treatment?”, 36(5) Journal of World Trade 921 (2002) with further references 14 For a discussion see G Marceau and J P Trachtman, “The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade : a map of the World Trade Organization law of domestic regulation of goods”, 36 Journal of World Trade 811 (2002) 590 Austrian Review of International and European Law considerations can also provide useful guidance for researchers and policy makers in other countries regarding the problems that domestic regulations might cause from the viewpoint of the international trading system (chapter 8, pp 397-514) Trüeb’s study is completed by succinct summaries of fourteen relevant dispute settlement reports in an annex (pp 515-540) In sum, this book constitutes a very extensive and detailed study of several pivotal problems stemming from the interplay of world trade law, international environmental law and domestic efforts to protect the environment The work does not appear to have been much influenced by conventional (often problematic) “GATT wisdom” and presents instead a refreshing variety of quite convincing self-reliant theses In several regards, this book has not been outdated, but actually confirmed by recent developments in WTO dispute settlement One may therefore hope that this study, although it is written in German, will receive the attention that it merits Erich Vranes Vienna University of Economics and Business Administration Erika de Wet & André Nollkaemper (eds.), Review of the Security Council by Member States Intersentia, Antwerp / Oxford / New York, 2003, ISBN 90-5095307-7, xvi+159 pp., EUR 34.00 This book is the remarkable result of a Round Table on Judicial Review of the Security Council by Member States after 11 September 2001 organized by the Amsterdam Center for International Law in autumn 2002 It contains a collection of very interesting and—to the benefit of the reader—sometimes highly controversially discussed issues While Erika de Wet starts out with a “principled view” on the limiting role of human rights on the enforcement powers of the Security Council, Anthony Aust replies with a “practitioner’s view” diminishing the hopes of those who seek to promote legal constraints to the Security Council’s broad powers In order to prepare the groundwork for judicial review, Erika de Wet argues that the Security Council is bound by basic human rights obligations as a result of UN Charter obligations (Article para and Article para UN Charter) and of a concept of equitable estoppel Interestingly, she does not discuss customary international law or general principles as alternative grounds for human rights obligations of the Security Council This absence is even more surprising, given the fact that she continues to discuss a potential jus cogens status of the right to a fair hearing—one of the most relevant human rights in the post-September 11 era, considering the fact the Security Council has taken a host of targeted sanctions depriving individuals of their financial means through the freezing of assets De Wet rightfully criticizes the absence of any review mechanism vis-à-vis Security Council imposed freezing orders In her view, the measure of last resort to correct potentially ensuing human rights violations lies in a refusal to Book Reviews 591 implement such Security Council decisions on the part of the member states She bases her argument on one of the two possible—and highly controversial—readings of Article 25 UN Charter, siding with those who prefer to regard the phrase “in accordance with the present Charter” as limiting the members’ obligation to carry out Security Council decision to those decisions which have been adopted in conformity with the Charter Anthony Aust rejects such a decentralized review of Security Council decisions by member states, which would undermine the collective security arrangement of Chapter VII of the UN Charter, as “without legal basis” He also questions the asserted jus cogens character of the right to a fair hearing and doubts whether there would be any legal restrictions for the Security Council to depart from international law In his view, the checks and balances within the Security Council exercised through its heterogeneous membership are the most important safeguard against abusive practices With regard to the anti-terrorism measures adopted by the Security Council Aust notes that the amended resolutions now provide for humanitarian exceptions and for a challenge procedure according to which persons listed as terrorists may be delisted again Pieter-Jan Kuijper highlights the role of the EU/EC in implementing Security Council resolutions He provides an overview of the history of Community measures which has finally led to Articles 301 and 60 EC Treaty But he also draws attention to numerous remaining problems, ranging from the question whether individual travel bans can be based on Article 301 to the member state practice of duplicating EC legislation P.J.G Kapteyn concludes the EU/EC chapter by looking at the role of the ECJ in implementing Security Council resolutions, or rather the limited role of the Court in protecting against human rights violations by the Security Council Though he pleads for a right of UN members to disregard Security Council resolutions in violation of human rights, he is aware of the difficult search for the appropriate standard to apply in such review Vera Gowlland-Debbas next looks at the domestic implementation of UN sanctions, focusing already on judicial review of national implementation measures—a topic which is broadened by Matthias Herdegen in his contribution on national court review of Security Council resolutions Herdegen is clearly inspired by the German Constitutional Court’s Solange approach to ensuring human rights control of acts of international organizations The following chapters move the discussion into more specific areas dealing with concrete examples of review of UN measures Per Cramér starts to discuss the Swedish experience with targeted sanctions, in particular the Taliban sanctions, which affected a number of Swedish nationals of African origin whose assets were frozen as a consequence of Security Council resolutions Their challenge to the EC implementing legislation is still pending before the ECJ and the practical solution of de-listing some of the affected persons has not proven very satisfactory Johan G Lammers provides a short overview of the Dutch court proceedings concerning a challenge to the legality of the ICTY brought by Slobodan Milosevic Though the Dutch national court did not abstain from hearing this action in principle, it followed closely the 592 Austrian Review of International and European Law deferential reasoning of the ICTY’s Tadic decision on jurisdiction Finally, Joseph Marko briefly outlines the restrictive constitutional review practice of the Constitutional Court of Bosnia and Herzegovina, in particular vis-à-vis acts of the UN High Representative The final chapter of this book contains Jose E Alvarez’ thoughtful essay on problems and policy options of the Security Council’s war on terrorism He paints the broader picture, underlining the Security Council’s turn to law-making in its counter-terrorism resolutions, and devoting considerable space to the question of the Security Council’s powers He shows skepticism with regard to possible human rights limitations on the Security Council and seems to accept that the Council may override customary international law On the issue of judicial review Alvarez surveys a number of strategies that could be employed by national courts when faced with a challenge to the legality of UN Security Council resolutions He argues that courts could use different standards of review and that alternatives to judicial review might produce equally useful outcomes In sum, this collection of Round Table papers serves as a highly topical contribution to the ongoing debate about the Security Council’s powers in the war against terrorism, in particular from a human rights perspective It is clear that many of the problems addressed in this book will find one or the other answer in actual judicial practice in the future It was a worthy undertaking to try to provide some guidance in this respect on such a high level of scholarship August Reinisch University of Vienna Book Notes 593 Book Notes Patrick Capps/Malcolm Evans & Stratos Konstantinidis (eds.), Asserting Jurisdiction International and European Legal Perspectives Hart Publishing, Oxford & Portland, Oregon, 2003, ISBN 1-84113-305-1, xxix+313pp., GBP 48.00 This book results from a symposium held at the School of Law at the University of Bristol It collects a range of different essays loosely held together by the overarching theme of asserting jurisdiction Contrary to what one might expect, this is not a book devoted solely to the question of limits to the assertion of jurisdiction, in particular, to the exercise of extraterritorial jurisdiction Rather, it comprises diverse international and European legal perspectives on very different aspects of jurisdiction, as the subtitle to this volumes suggests It starts with theoretical reflections by Sir Franklin Berman and Iain Scobbie on the public international law side and continues with Jonathan Hill’s essay on the exercise of jurisdiction in private international law This introductory part is followed by a set of contributions broadening the jurisdictional issues by focusing on the approaches to the assertion of jurisdiction by political bodies Under this heading, Trevor Hartley looks at the relationship between national law, international law and EU law and Stephen Hyett at the member states’ competence and jurisdiction under the EU/EC Treaties It is followed by a mixed order of Brenda Sufrin discussing the potential of a multilateral regulation of competition, Colin Warbrick elaborating on the (legislative) jurisdiction of the UN Security Council and Christopher Greenwood reflecting on the different jurisdictions dealing with NATO’s military action in the Kosovo It is only the final set of essays that deal with the assertion of jurisdiction by adjudicative bodies: Hazel Fox on the approaches of domestic, Judge Abdul Koroma on the ICJ, Dominic McGoldrick on the Human Rights Committee, Alan Boyle on the Law of the Sea Tribunal, Stephen Weatherill and John Usher on the ECJ Despite the rather random selection, this book provides fascinating insights into the various problems resulting from a clear tendency to reduce obstacles to the assertion of jurisdiction, both on the international level where the “proliferation” of courts and tribunals has contributed to increased international adjudication as well as on the national level where hindrances to the exercise of jurisdiction in the form of immunity and various non-justiciability doctrines have been considerably reduced This makes the present volume a worthy addition to the existing scholarly writings on procedural issues August Reinisch University of Vienna Austrian Review of International and European Law 8: 593-596, 2003 ©2005 Koninklijke Brill NV Printed in the Netherlands 594 Austrian Review of International and European Law Nina H.B Jørgensen, The Responsibility of States for International Crimes, Oxford 2000 (hardcover), 2003 (paperback), ISBN 0-19-925800-7, 331 p This book was mainly inspired by Chapter III of the Articles on State responsibility as drawn up by the ILC and taken note of by the General Assembly This chapter was a successor to famous article 19 of the first reading text on State responsibility regarding international crimes The final text dropped this expression and replaced it by serious breach of an obligation arising under a peremptory norm of general international law The author starts from a historical perspective of the concept of “State Responsibility” since the end of WW I and juxtaposes it to the development of individual responsibility In her view until WW II the idea of collective responsibility prevailed whereas after WW II this concept was considered rather unworkable and replaced by individual responsibility She concentrates on the development of State responsibility for crimes such as genocide, apartheid and those addressed by first reading text of draft article 19 of the ILC on State responsibility The next parts reveals her basic consideration, namely to attempt to derive State responsibility from some sort of collective responsibility or responsibility of organizations such as spelled out by the Nuremberg trials and judgments The discussion of the legal nature of such crimes proceeds from the notion of ius cogens However, the conclusion that international crimes are conceptually at the pinnacle of the hierarchy of norms (p 92) is certainly a sign of bona voluntas, but can hardly be derived from the existing system of international law, although her further conclusion that human rights and humanitarian law originate from elementary considerations of humanity are to be supported The further deliberations on the possibility and intricacies of State crimes (obviously still under the influence of draft article 19 of the first reading text of the ILC on international crimes although she discusses also the final version of these articles) deal in particular with the problems and modalities of punishing a State, including the problem of punitive damages As to this intensively discussed issue she rightly concludes that under present circumstances punitive damages can hardly be identified Despite the difficulties to elaborate the ramifications the author then concentrates on criminal responsibility of States and examines the possible institutional mechanisms to impose such responsibility on States, including judicial as well as political organs According to her view, the concept of State responsibility “is an emergent principle of international law”, is crystallizing in particular in the imposition of the crime of genocide on States in some recent international judgments Although the intentions of the author are to be appraised, the conclusions reached by her are not very convincing The reader misses in particular a discussion of basic issues of criminal law and its particular features in application to States One should also distinguish between the questions of whether States can be held responsible for a breach of the prohibition of genocide or of aggression and of whether such a breach amounts to an international crime It seems that the author, during her work, was surprised by the fact that the ILC dropped the term “international crime” so that she Book Notes 595 was obliged to adjust her work to the new terminology Nevertheless, this treatise merits a reading due to its thorough and scholarly elaboration and discussion of an issue that will still attract the interest of international practice and theory Gerhard Hafner University of Vienna Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals Oxford University Press, Oxford, 2003 (hardback), 2004 (paperback), ISBN 019-925857-0 (hardback), 0-19-927428-2 (paperback), 418 pp., GBP 67.50 (hardback), 25.00 (paperback) With this first book in the new Oxford International Courts and Tribunals Series Yuval Shany has written a most timely treatise on one of the acute problems of international dispute settlement With the “proliferation” of international courts and tribunals the likelihood not only of jurisdictional overlap, but also of conflicting outcomes increases In his well-balanced and finely reasoned PhD thesis Yuval Shany addresses both aspects with an admirable in-depth scrutiny and accuracy He first provides a detailed account of the potential of jurisdictional overlap between general and specialized as well as between universal and regional dispute settlement mechanisms, focusing on courts and tribunals but including human rights organs such as the UN Human Rights Committee His very thorough analysis of existing the case-law reveals that jurisdictional overlap is not only a potential but has already materialized in various cases such as the Swordfish dispute, simultaneously pending before a WTO Dispute Settlement Panel and the ITLOS, or the British-Irish MOX dispute, before two different Permanent Court of Arbitration panels and the ECJ In a highly theoretical section Shany then addresses the conceptual underpinnings of when we may correctly speak of competing jurisdictions He finds them in the assertion that the various dispute settlement mechanisms available not constitute separate, “self-contained” regimes but rather form part of a larger more or less coherent system of international courts and tribunals On this basis Shany sets out to investigate the policy issues surrounding forum shopping, parallel and consecutive proceedings He basically argues that, despite its negative connotation, forum shopping may not be an inadequate expression of sovereign autonomy as long as it is not abusively practiced, does not lead to a “race to the courthouse”, and does not remove jurisdiction from a highly specialized, exclusive forum With regard to a multiplication of proceedings Shany strongly supports the use of avoidance doctrines such as lis pendens and res judicata – which in his view embody already general principles of law In the next section the international lex lata and lex ferenda of jurisdictional overlap is discussed The author first thoroughly reviews the existing “competition-regulating norms” contained in treaties and others instruments governing the jurisdiction of international courts and tribunals In this context he discusses exclusive jurisdiction 596 Austrian Review of International and European Law provisions such as those found in the EC Treaties (with regard to the ECJ) or in the WTO Dispute Settlement Understanding (with regard to WTO Panels and Appellate Body) and more flexible ones such as those governing the jurisdiction of the European Court of Human Rights These are compared with other provisions offering nonexclusive (e.g the ICJ) or even just residual (e.g ITLOS) jurisdiction In general, such jurisdiction regulating norms are far more frequent than provisions aimed at reducing the likelihood of multiple proceedings Few instruments contain express lis pendens and/or res judicata clauses while some human rights instruments provide for electa una via, according to which once a procedural avenue has been chosen alternative ones are excluded Shany demonstrates that the scarcity of express norms in the latter field may be compensated for by judicial reliance on unwritten lis pendens and res judicata rules In particular, the latter has been identified by many international courts and tribunals as a general principle of law applicable in international dispute settlement The author concludes his study with the policy recommendation that with the increase of potential overlap measures aimed at mitigating the multiplicity of proceedings should be adopted in order to protect the legitimacy of the international legal system This book deserves attention not only because of the timeliness the topic but also on account of the excellent academic treatment of the subject Shany analyses the existing international law and the policy issues involved with thoroughness and precision The result is an impressive work of legal scholarship August Reinisch University of Vienna