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《欧盟对外关系法的发展》与《欧盟对外关系的法律和实践》短评
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链接:http://www.europeanlawbooks.org/reviews/detail.asp?id=555

Short review

Law and Practice of EU External Relations. By Alan Dashwood and Marc Maresceau, Cambridge: Cambridge University Press, 2008. Pp. 512. $130.00.
Developments in EU External Relations Law. By Marise Cremona (ed.), Oxford: Oxford University Press, 2008. Pp. 336. $125.00.
Reviewed by Peter Hilpold, University of Innsbruck.
 
The External Relations of the European Union increasingly become an autonomous subject of study and a burgeoning literature tries to sort out the main characteristics of this field. Of course, the subject evidences an enormous scope and as of yet no unitary methodological approach has been devised by which this subject could be approached. As the material content of this field of research - interrelated as it is with international law - strays extremely broad, competence to deal with every detail of this area will be rare. Therefore, for the time being, collective writings will offer the best opportunity to gather the necessary expertise for an appropriate analysis. Recently, two books have been published which contain a series of contributions by leading experts of EU law who present insight into particular aspects of EU External Relations Law. Read together, these two books represent a most interesting stock-taking and up-dating on a subject in very fast movement.
 
In her contribution entitled “Defining competence in EU external relations: Lessons from the Treaty Reform Process” (in: “Law and Practice”), Marise Cremona examines the perennial attempts to further clarify the reach and legal basis of the external competences of the European Union. With the EU continuously redefining both its role on the international stage and its internal constitutional setting, its rules on external competence had to evolve. This was a rather contentious affair whereby the task to create transparency was mainly attributed to the ECJ. Many uncertainties remained. Marise Cremona takes the principles and objectives set out in the Laeken Declaration of December 2001 as a starting point to examine whether the final outcome of the treaty reform process, the Treaty of Lisbon, will really enable the European Union “to better define and fulfil its role in the world.” Cremona answers this question mostly in the positive, in particular with regard to the definition of the common commercial policy and the inclusion of a provision on general treaty-making competence linked to Union policies and objectives. At the same time she demonstrates, however, that issues concerning the inter-pillar choice of legal basis will become more rather than less and that the codification of the case law of the ECJ on exclusivity merely provides a snapshot that might not be very helpful to define and steer an ongoing process.
 
An interesting attempt to both define competence for EU External Relations and to assess how the EU has contributed to shaping present-day international law is provided by Frank Hoffmeister in “The Contribution of EU Practice to International Law” (in: “Developments”). This contribution is not only of high academic interest but, furthermore, it can serves as basic reading for students engaging with EU law in general or external relations law in particular. In fact, this writing is both a commentary-like analysis of concepts applicable in this area (like “exclusive competence”, “shared competence” of the “cross-pillar” acting by the EU in this area, of internal coordination and external representation) as well as an excellent description of EU practice in this field which only an insider as Hoffmeister could provide. One does not need to agree with each detail of the author’s analysis (like his conviction, expressed on p. 97 that the EU contributed to the evolution of a right to humanitarian intervention or to a “responsibility to protect”)[1] to come to such a result.  With regard to the “Kadi”-case which is very much discussed these days, Hoffmeister has expressed the opinion that the CFI could have reached an “international law friendly” result by stating that the Community was obliged to implement UN sanctions under Article 307 and 10 EC (the Member States’ duty of loyalty) (p. 91).  This reviewer, who agrees in general more with the CFI judgment than with that by the ECJ, finds this remark very pertinent.
 
It has to be admitted, however, that this whole problem can also be seen from a fairly different viewpoint - the “pure EC perspective” - to which Piet Eeckhout has given expression in “EC law and UN Security Council Resolutions – in search of the right fit” (in: “Law and Practice”). Eeckhout strongly criticizes the CFI judgment in the Kadi case which tried to balance international law and EC law. Piet Eeckhout’s position was fully endorsed by the ECJ. Reference to SC sanctions is no excuse for the violation of EU human rights standards. The reviewer remains, however, sceptical towards the long-term consequences of such an attitude with regard to the need to guarantee respect for UN Law. Eeckhout writes the following: “Community law must respect international law, and thus, in particular, UN Resolutions. However, the principle of respect for fundamental rights is, on balance, the stronger imperative, and if it clashes with international law, should override it.” (p. 126).  I would not go as far as André Nollkaemper, who wrote that it would be difficult to “differentiate between challenges based on fundamental human rights, as perceived and construed in Western-Europe, and challenges based on, say, the Sharia”.[2] But the danger that UN law (and in the end also human rights law) could be severely weakened if respect for it was made dependent on public reservations individually defined by single UN members cannot be ignored.
 
The antiterrorist sanctions which are taken by UN Members on their own account may also raise serious human rights questions if no sufficient guarantee for judicial review is given. This problem is examined by Eleanor Spaventa (“Fundamental rights and the interface between second and third pillar”, in: “Law and Practice”). For her, the EU lists are the result of an “instrumental use of Treaty competences to exclude or limit both judicial and democratic accountability” (p. 130) or, more cautiously, they “might well raise some questions as to whether the Member States acted instrumentally to avoid both democratic and judicial scrutiny,” (p. 150).
 
In the past, when the subject of EU External Relations Law was addressed, primary topics were the relationship between EU law and GATT/WTO law and the question of direct effect of international law within EC law. In “Law and Practice,” these two classics are taken up by two contributions: Francis G. Jacobs examines the question of “Direct effect and interpretation of international agreements in the recent case law of the European Court of Justice.” He evidences that there is an increasing trend in the ECJ jurisprudence to accord direct effect to provisions of association agreements primarily on the basis of the wording of the respective provisions while lesser importance is attributed to the nature of the agreement as a whole. As it is known, in cases where direct effect is denied, first and foremost with respect to obligations under the GATT/WTO agreements, the ECJ bases its reasoning mainly on the latter perspective. Jacobs cautions, however, not to overstate the significance of this new jurisprudence as it is evident in these cases that, at least implicitly, also the nature of the relevant agreements, which clearly favour direct effect as they mainly concern the position of individuals, is taken into consideration. It can therefore be argued that the denial of direct effect to GATT/WTO law may constitute an exception in the relevant ECJ jurisprudence, but an exception fully in line with the rule.[3]
 
As Jacques Bourgeois and Orla Lynskey demonstrate in their contribution “The extent to which the EC legislature takes account of WTO obligations: jousting lessons from the European Parliament,” the EC legislature takes into account, to an increasing extent, WTO concerns but the Council is, in this regard, more open than the European Parliament. Through several case studies, the authors present this reluctance by the European Parliament as an attempt to defend Community interests. From a more critical viewpoint this attitude may also be interpreted as a concession to protectionist forces which have a stronghold in the EP.
The book on “Developments” does not contain contributions on this generic subject but the special relationship between EU law and WTO law is nonetheless attributed paramount importance in two writings on sectoral issues. The chapters by Markus Krajewski (“Of Modes and Sectors: External Relations, Internal Debates and the Special Case of (Trade in) Services”) and Lorand Bartels (The Trade and Development Policy of the European Union”) deliver an excellent account of the development of two areas in EU External Relations Law that have been shaped profoundly by GATT/WTO law. Both chapters are highly readable and would also be well suited in a general textbook.
 
The same can be said about the chapter by Marise Cremona on “The European Neighbourhood Policy”. Here, the complex subject of the European Neighbourhood Policy (ENP) is presented in a clear, systematic, and very concise way. The book on “Law and Practice” also contains several contributions on the ENP and on the special relationship of the EU with specific third States (see the contributions by Christine Kaddous, Marc Maresceau, Christophe Hillion, Peter van Elsuwege, Erwan Lannon and Günter Burghardt) in Part II on “Bilateral and regional approaches”). They all provide additional useful information for further research.
 
On the whole it can be said that the two books reflect very well (and rightly so) the specific aim for which the respective papers have been written. While “Law and Practice” results from a workshop catering to the interests and needs of highly specialized practitioners and academics, “Developments” is the material result of a series of lectures given at the Summer School in European Union Law at the Academy of European Law in Fiesole (Florence) and addresses both researchers and students. There can be no doubt that any further research on the subject of EU External Relations will profit from any single contribution in these two books.

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[1] This reviewer has set out elsewhere that such a development is highly improbable and not even desirable See P. Hilpold, The duty to protect, 10 Max Planck Yearbook of United Nations Law 2006, pp. 35-69.
[2] See A. Nollkaemper, Rethinking the Supremacy of International Law, Amsterdam Center for International Law, Working Paper 2009, p. 3, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1336946.
[3] See, in the same vein, P. Hilpold, Die EU im GATT/WTO-System, 3rd edition 2009.

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