Jan Wouters, André Nollkaemper and Erika de Wet (eds), The Europeanisation of International Law: The Status of International Law in the EU and its Member States. The Hague: TMC Asser Press, 2008. 260 pages. ISBN 978-90-6704-285-7. GBP 53.
The volume under review considers the relationship between international law and European law through the perspective of the concept of ‘Europeanization’. The ‘Europeanization’ of international law takes place on two principal levels. On the one hand, the process of European integration has made a distinct, though perhaps not always immediately visible, contribution to the development of international law. As a subject of international law, the European Community has built up a considerable body of practice on the international level, in particular through the conclusion of international agreements with third parties and through its participation in other international organizations. The Community also aims to actively influence the development of international law through its external policies, for instance by promoting a multilateral international order based on the rule of law, and by coordinating the legal position adopted by its Member States in international fora.
On the other hand, international law can be said to become ‘Europeanized’ whenever it enters the Community legal order and thereby the domestic legal orders of its Member States. Since the effect of international law within the Community legal system depends on the terms of Community law itself, it may seem somewhat misleading to conceptualize the ‘Europeanization’ of international law as referring to the ‘distinct qualities and features that international law acquires once it enters the domain of the EU’ (p. 8). Community law seems to give effect to international law not so much by incorporating it into the Community legal order as rules of international law and clothing it with distinct legal features in the process of doing so, but rather by transforming rights and obligations arising under international law into rights and obligations arising under and governed by Community law. Of course, the need to transform rules of international law into rules of domestic law is not of recent origin, but constitutes an inherent feature of the modern international legal system. The novel and truly challenging aspect of the ‘Europeanization’ of international law thus lies in the fact that this need for transformation arises not simply in the context of a bilateral relationship between international and domestic law, but in the far more complicated tripartite relationship between international law, Community law and the multitude of national legal systems of the Member States of the Community.
The present volume aims to explore some of the questions raised by this second aspect of the ‘Europeanization’ of international law, that is the reception and transformation of rules of international law within the Community legal order. The ten contributions to the volume are organized around two basic themes: the phenomenon of ‘Europeanization’ and its consequences for domestic law, international law and judicial protection within the EU.
The book opens with a contribution by Rainer Wahl setting out some of the different dimensions and complexities entailed by ‘Europeanization’. In the following chapter, Bruno de Witte argues forcefully that the Member States of the EU have become ‘strange subjects’ of international law as a result of having transferred many of their powers to the Community and in this sense ‘are no longer sovereign States to the same extent as other States in the world’ (p. 53). One response to this thesis would be to point out that the Member States remain the ‘masters of the treaties’ and as such could regain their competences from the Community at the stroke of a pen—at least in theory. Another response would be to underscore that sovereignty is what States make of it and that international law has long known semi- or quasi-sovereign States. Sure, the Member States of the EU have limited the right to exercise their sovereign competences, but after all this is what much of international law is about. Despite these possible objections, de Witte’s contribution does usefully raise the broader question of how much ‘outsourcing’ of State functions the concept of sovereignty and Statehood can actually accommodate. The next three chapters by Christian Tietje, Allan Rosas and Pieter Jan Kuijper analyze the position of different types of international rules and instruments within the Community legal order, such as treaties, customary international law, non-binding instruments and the decisions of other international organizations. Between them, these chapters provide an excellent overview of the case-law developed by the Community courts in this area and highlight the differences in the reception of different types of international norms and instruments within the Community.
The remaining chapters are concerned with the consequences of the ‘Europeanization’ of international law. Johan Callewaert offers a valuable discussion of the interplay between Community law and the European Convention on Human Rights and the effects of their interaction on the domestic legal orders of their Member States. The following two chapters take the form of case-studies considering the impact of the ‘Europeanization’ of international law on certain domestic legal systems. Astrid Epiney and Bernhard Hofstötter, in collaboration with Markus Wyssling, examine the position of Austria, Switzerland and Liechtenstein, while Nóra Chronowski and Tímea Drinóczi offer an analysis of Hungary. Although it is not entirely clear why these States were chosen and not others, these two chapters highlight some of the dilemmas encountered by national law-makers and constitutional courts in attempting to address potential and actual conflicts between national, European and international norms. In the following contribution, Nikolaos Lavranos offers an intriguing analysis of the implementation of Security Council resolutions in the Community legal order in the light of the Kadi case. While Lavranos rightly exposes some of the weaknesses of the Court of First Instance’s reasoning in Kadi, his argument does not convincingly address some of the flaws that arguably vitiate both the opinion of Advocate General Maduro and the judgment of the European Court of Justice in the same case. Finally, Joost Pauwelyn makes the case for formulating and promoting a specifically European agenda for the development of international law. In his view, the point of such a specifically European conception of international law is not so much to rival other regional or national agendas, primarily that of the United States, but to engage these in a productive discourse on the future of the international legal system.
The editors of this volume have managed to attain the right balance between focusing on the mechanisms of incorporating international law into the Community legal order and the practical and theoretical questions raised by this process as well as a good mix of European, international and domestic perspectives. Although there is not much of a dialogue going on between the different contributions, as one often finds in edited volumes, the different contributions nevertheless complement one another nicely and the book reads very well as a result. Given the level of attention that the relationship between Community law and international law has received following the judgment of the European Court of Justice in Kadi, one would expect this book to fly off the shelves.
This review was published in the (2009) 56 Netherlands International Law Review 280–282.