Docstoc

211

Document Sample
211 Powered By Docstoc
					696    EJIL 17 (2006), 689–698


to Freeman’s classic treatise. In addition, the     denial of justice to life. Paulsson’s thesis that
book does not address developments under            denial of justice is always procedural provides
international human rights treaties in great        a principled basis for maintaining an interna-
detail or consider the extent to which proce-       tional standard while at the same time accept-
dural protections under these treaties have         ing that ‘the varieties of legal culture that enrich
crystallized into customary international law.      the world’ (at 205) should be respected. This
   The final chapter, entitled ‘The Menace of       book is indispensable to those interested in
Obscure Arbitrators’, is a ‘post scriptum’ –        the evolving law of international claims.
‘thoughts inspired by sidelong glances’ (at         University of Victoria           Andrew Newcombe
228) – on denial of justice in modern interna-      Email: newcombe@uvic.ca
tional law. Paulsson begins by noting the par-                               doi: 10.1093/ejil/chl021
ticular sensitivities about challenges to
national justice, which ‘strike at the heart of     Roman Kwiecien, Suwerennosc
national pride’ (at 228). As a result, denial of
                                                    panstwa. Rekonstrukcja i znaczenie
justice is a ‘formidable test of commitment to
the rule of international law’ (at 228). Pauls-     idei w prawie miedzynarodowym
son is highly critical of what he calls an unin-    (State Sovereignty. The Reconstruction
formed ‘neonationalist reaction’ (at 232) to        and Meaning of the Notion in
international adjudication as reflected in arti-    International Law), Kraków:
cles in the popular press and statements by         Kantor Wydawniczy Zakamycze, 2004.
NGOs and politicians. These critics suggest         Pp. 205. ISBN 83-7333-435-1
that any international adjudication of national
                                                    (published in Polish).
measures is a violation of sovereignty. Paulsson
views this simply as a negation of international    The book under review is the first monograph
law. Although supportive of the incremental         in Polish on state sovereignty from an inter-
reforms to the investor-state arbitration pro-      national law perspective. This gap in the liter-
cess, for example through greater transpar-         ature for the period following World War II
ency and access to amici curiae, he is              until the change of political system in 1989 is
sceptical of proposals for new types of appel-      understandable, given the strong ideological
late mechanisms for investment treaty               nature of the subject. However, after 1989 and
awards and appears satisfied with existing          despite some important studies, the absence of
corrective mechanisms. Paulsson is not con-         a comprehensive book-length treatment of the
vinced that appellate review of investment          subject was noticeable. This was even more
treaty arbitration would provide better or          striking given the European Union accession
more consistent decisions and he contrasts          process, as it was accompanied by a debate
highly fact-contingent investment arbitra-          (predominantly political) between – generally
tions with disputes in the WTO state-to-state       speaking – those who viewed accession as a
system. Paulsson also notes that even in the        deadly danger for Polish sovereignty and
domestic sphere, it takes time to develop con-      those who treated sovereignty as a relic of the
sistent jurisprudence and that investment           past. This discussion was not surprising, espe-
state arbitration under investment treaties is      cially in a country which had only recently
in its infancy.                                     fully regained political independence. In such
   Paulsson’s writing is clear, lucid and lively.   circumstances, the lack of an in-depth reflec-
The research and presentation of interna-           tion from an international law perspective was
tional authorities is meticulous and illuminat-     more than evident. This volume by Roman
ing. Whether he is recounting the lynching of       Kwiecien, lecturer in international law at the
Italians in New Orleans by mobs in the 1800s        Maria Curie-Sklodowska University of Lublin,
or former Peruvian President Fujimori’s             definitely fills this gap, even though it does
attempts to manipulate Peru’s Supreme               not focus on the context of Polish member-
Court, he brings the stories behind claims of       ship in the EU. The book, which results from
                                                                                 Book Reviews      697


the author’s extensive research, was awarded         theory of international law, one in which state
the Manfred Lachs Prize in January 2006 for          sovereignty is replaced by the sovereignty of
the best international law book by a Polish          law. Finally, the author presents an approach
author published in 2004 ex aequo.                   which illustrates the immanent interrelation
   The book opens with an introduction which         between state sovereignty and international
presents state sovereignty as a methodological       law and perceives the former as the basis of
and epistemological problem. Its main thesis is      the latter. This approach, inspired by a Kantian
that the notion of state sovereignty is funda-       philosophy of law, is evidently shared by the
mental for international law and its theory. As      author in further analysis.
long as states – and in consequence interna-            Part Two, the essential part of the book, deals
tional law – exist, state sovereignty remains its    with the nature and significance of the notion
main regulatory mechanism. The author                of sovereignty in international law and its the-
admits that this thesis is neither new nor revolu-   ory. It contains three chapters which deal
tionary, but argues that it is worth considering     respectively with an analysis of the notion itself;
again today at a time when there are important       the idea of the indivisibility of state sovereignty
trends towards a questioning of the meaning          in the context of its limitations and violations;
and significance of state sovereignty. Advanced      and its role for international law justifications.
forms of state interdependence, for example,            The author reviews the definition of state
undoubtedly cause serious practical, as well as      sovereignty as a notion without which the
theoretical, problems. Nevertheless, the author      very existence of international law would not
stresses that a position which uncritically ques-    be possible. As such, state sovereignty is defined
tions state sovereignty as being inadequate for      as the main regulatory notion of international
modern international relations and interna-          law. In addition, the author defines state
tional law is highly unsatisfactory.                 sovereignty not only negatively as non-
   The main body of the book is divided into         subordination to any other subject, but also
two parts. Part One is devoted to the history of     positively through the state’s full capacity to
the idea of sovereignty in international law and     perform legal actions, both internally and
its doctrine. Kwiecien starts by reviewing the       externally. Thus, a territorial entity is sover-
development of the notion in a historical per-       eign if it has this full capacity to act and, con-
spective, which strictly corresponds to the          sequently, enjoys the status of a state under
evolution of the international law system.           international law, even in the event that it is
Indeed, the development of international law         in a position of political dependence on other
may be seen as the process of progressive pro-       subjects, as was the case with Poland and the
tection of state sovereignty through the grad-       other states of the Soviet bloc prior to 1989.
ual emergence of principles of international         The change of political system in 1989 did not
law, such as the principle of sovereign equal-       change Poland’s status under international
ity, which aimed at protecting statehood and         law. The author stresses that it is the formal
is essential in this context.                        attributes – through which states exercise
   The author critically presents three main         their powers – which constitute the real sov-
doctrinal approaches to the notion of state          ereignty test and not a lack of actual political
sovereignty vis-à-vis international law within       dependence. Yet, it should be noted that such
a philosophical perspective. He begins with an       a formalistic approach results in a significant
approach which he labels as the ‘absolutiza-         gap between notions of legally understood
tion’ of state sovereignty. This approach is         sovereignty and politically understood inde-
based on the supposition that sovereignty            pendence. Furthermore, the author deals
excludes the subordination of states to inter-       with the notion of a state’s reserved domain
national law and, in consequence, questions          (domaine réservé), which, according to the
its binding force. The second approach is            author, is determined by states’ international
based on negation and abandonment of state           obligations. He correctly claims that there
sovereignty as a precondition for a coherent         exists only a negative relationship between
698     EJIL 17 (2006), 689–698


reserved domain and sovereignty, i.e. interfer-      jointly exercise their competences. What is
ence in a state’s reserved domain constitutes a      decisive is that they preserve the competence
violation of its sovereignty.                        of determining their competences (compe-
   Moreover, Kwiecien strongly advocates the         tence of competences) and consequently remain
indivisibility of state sovereignty. Thus, he        fully sovereign. As far as violations of state
critically refers to concepts of joint sover-        sovereignty are concerned, the author per-
eignty in the territorial context (condomin-         ceives the issue through violations of norms
ium) and the federal context, as well as to the      protecting sovereignty. It is a consequence of
doctrine of divisible sovereignty as regards the     the fact that sovereignty itself is not a legal
status of EU Member States. In the last case,        norm. By way of illustration, reference is
the author persuasively claims that at present       made to the problems of violation of the non-
the EU does not have any sovereign rights as         intervention principle and legality of armed
it does not have any objectives independent of       interventions, regrettably too succinctly.
the Member States (autonomous objectives).              The author also critically discusses the
Further points are made separately with              main philosophical doctrines which deal with
respect to the limitations and violations of         the binding force of international law, as well
state sovereignty. Although the author gen-          as with the mutual relations of municipal and
erally excludes limitations of sovereignty as        international law, both in the context of state
the effect of undertaking international obliga-      sovereignty. In conclusion, he claims that the
tions, he accepts the exceptional existence of       objective meaning of international law derives
states with limited sovereignty. Such a posi-        from states’ awareness of the inviolability of
tion may cause some concerns as to its coher-        their legal status as a common value demand-
ence, especially in the context of examples          ing due protection. Thus, the basis of interna-
analysed further. The author divides limita-         tional law is a consequence of a common
tions, which remain legal under international        awareness of protection of the sovereignty of
law, into two categories: those against the          states. Inspiration in Kantian philosophy is
will of states and those in accordance with the      explicitly invoked in this context.
will of states. The former category is exempli-         The book opens with two quotations. One is
fied firstly by sanctions imposed upon states        by Louis Henkin, defining sovereignty as a
(for example, those under Chapter VII of the         bad word which has served terrible national
United Nations Charter) and secondly by              mythologies and which often acts as a substi-
treaty regimes limiting states’ legal capacity       tute for thought and precision. The other is by
to determine their status under international        Stanislaw E. Nahlik, stating that almost all
law (for example, Germany before unification;        the main principles and institutions of
Cyprus). The latter category applies mainly to       modern international law derive to some
protectorates and mini-states. Further, the          extent from, are based on or justified by the
author focuses on the influence of integration       notion of state sovereignty. Both approaches
processes on the sovereignty of the states           are duly represented and analysed through-
involved. Particular attention is devoted to         out the book, although there is no doubt that
integration within the EU. The author rejects        Kwiecien fully supports the Nahlik approach
the idea that sovereignty of the EU Member           and eruditely presents various aspects of state
States is limited. This view is generally accepted   sovereignty – remaining constant in its
in the Polish doctrine of international law.         nature and complementary to international
Kwiecien maintains that such an idea is based        law – manifested in particular stages of the
on ECJ jurisprudence, which defines sover-           development of international law.
eignty as the sum of state competences. The          Jagiellonian University,         Michal Kowalski
author rejects this definition and maintains         Kraków, Poland
that currently the EU constitutes only a             Email: kowalsma@ists.pl
supranational forum where Member States                                      doi: 10.1093/ejil/chl022