Book Reviews Fassbender, Bardo. UN Security Council Reform and the Right of Veto: A Constitutional Perspective. The Hague, London, Boston: Kluwer Law International, 1998. Pp. xii, 395. Index. Dfl185, $100, £63. Most scholars who choose to use the UN Charter in practical terms as a sort of constitution of the international community usually qualify this view by pointing to those traits of the Charter which fall short of the national prototype. In the book under review, Bardo Fassbender wants to go the whole way: before actually treating the issue of Security Council reform, as the title of his - worth noting from the outset - magnum opus suggests, he presents a 159-page truly 'constitutional' reading of the Charter modelled after national constitutions. According to this interpretation, the Charter constitutes the outcome of a 'legal revolution' in Kelsenian terms, a revolution which left earlier international law in force only in so far as it was, implicitly or explicitly, incorporated into the new foundational document. A number of important consequences derive from Fassbender's reading: to name a few, he rejects the existence outside or above the Charter of 'general international law' and jus cogens; he denies any difference in rank between technical or organizational Charter provisions, on the one hand, and material jus cogens, on the other; in his view, Article 103 establishes a true hierarchy of norms (and is not only a conflict of law rule) and also applies to customary law; the Security Council cannot only 'call upon' non-members - e.g. non-member states, de facto regimes or multinational corporations - but can also adopt measures with binding force against them; and the Charter is not to be interpreted according to the original intent of its framers or state practice, but pursuant to the views of the whole interpretive community having particular regard to UN practice. Fassbender argues in favour of a broad interpretation of SC prerogatives; he does not shy away from entrusting it not only with enforcement powers, but also with issues of state responsibility, of 'quasi-judicial' pronouncements and even of law-making. For instance, he would not have objected to the establishment of an International Criminal Court on the basis of a mere SC resolution. Fassbender's reading of the Charter thus confers, at least in theory, tremendous power upon the Security Council. Admittedly, there is no danger of a global Leviathan. But the author neglects the fact that an increasing perception of illegitimacy and shallowness of SC actions does not contribute to the effectiveness of its decisions. The very domestic constitutional history that Fassbender uses to argue in favour of a powerful Council calls strongly for checks and balances and the protection of individual rights and liberties. Consequently, in the second part of this volume Fassbender focuses on reforms to enhance the legitimacy of the Council. Drawing on the recent debate within the UN, he looks at proposals to change the composition of the Council and the rules for the exercise of the right to veto. He claims that the veto can no longer be legitimized by the great power status of its permanent members. The wartime coalition made way for the active membership of the former enemy states in the UN; the five permanent members do not hold the same amount of power as they did in 1945 - with the only exception of the United States - while other strata of the international community are legitimately looking for adequate representation. With a view to inherently limiting the exercise of the veto, Fassbender discusses the application of the clausula rebus sic stantibus and of the concept of abuse of rights, but in the end he rejects both as having no place in the interpretation of a constitutional document. Accordingly, the veto can only be justified as being a recognition of the special contribution of a certain country to the realization of common interests by the community at large. As a consequence, it must not be exercised for the pursuit of selfish interests. Fassbender concludes that a constitutional reading of the Charter requires, in the wake of the principle of nemo debet esse judex in propria sua causa, a restriction of the veto power to decisions pursuant to Chapter VII, by formal amendment of the Charter. The author objects to the application of objective criteria for granting the privileges of permanent membership and veto power, nor does he propose concrete changes in the Council composition. Fassbender can quote some unlikely supporters of his ideas for reform from the early days of US enthusiasm for the UN, but, as he readily acknowledges, the current prospects for such a reform are rather slim. This apparent failure to line up the support of the international community for carrying out urgently needed constitutional reforms raises, of course, doubts as to whether this constitutional reading of the Charter lives up to reality. The enthusiasm for international institutions in general, and the UN in particular, which was dominant after the end of the Cold War has since evaporated. The looming doubts about the management capabilities of international institutions entertained by 'globalization', which seriously affect the prospects of international constitutionalism, are not seriously discussed. Although Fassbender criticizes - and rightly so - the reluctance of international lawyers to engage in a meaningful dialogue with international relations theory and international ethics, he does not begin such a dialogue himself. A more thorough treatment of constructivist approaches, for instance, might have led Fassbender to a more critical evaluation of the transfer of domestic law concepts to the international sphere. Fassbender emphasizes the scope of new global problems - environment, proliferation of weapons of mass destruction, 'failed states', etc. - and the emergence of new actors on the international plane. Arguing for 'more government' in international relations, he fails to take into account political science approaches which, in the absence of an effective world government, rather call for 'governance without government' at the international level. In the conclusion, the author refutes his own description of the current task as 'Constitution-building without a Hegemon' by primarily treating concerns of US domestic politics. In order to entertain his argument, Fassbender has to disregard the profound ambiguities within the Charter itself; it oscillates between great power prerogatives, the principle of sovereign equality of states and the assertion of rights of the individual. It remains unclear how the 'incorporation' of earlier law into the Charter has taken place. For instance, the Charter does not contain rules on law-making or on state responsibility. Fassbender's use of constitutional principles leads to divergences with the positive law of the Charter. To point to just one example, the nemo judex principle is expressly disregarded by the regulation of the veto power, and can therefore not be used to limit its exercise. Fassbender rejects Charter amendment by informal consensus, e.g. in the case of abstentions, and the endowment of Charter organs with additional tasks by way of multilateral treaty, as codified in the statute for an International Criminal Court. Such formalism does not contribute to the adaptation of the Charter, as a 'living constitution', to reality. In the preface, Fassbender quotes Inis Claude, saying 'The scholar's proper role is less to answer questions than to question answers.' By presenting a coherent model of a truly constitutional reading of the Charter, Fassbender exceeds this goal by far. But at the same time, he has also exposed the profound difficulties that such a reading of the Charter entails. Andreas L. Paulus Ludwig-Maximilians-Universität München
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