Book Reviews

Günther, Carsten Alexander. Die Klagebefugnis der Staaten in internationalen Streitbeilegungsverfahren. Köln, Berlin, Bonn, München: Carl Heymanns Verlag, 1999; Pp xiii, 306.

In the book under review, Carsten Alexander Günther analyses the requirement of standing in cases before international courts and tribunals. The study is one of the first in the German literature to address judicial enforcement of obligations erga omnes, thus filling a significant gap.

Günther has divided his study into four chapters. In Chapter 1, he qualifies the problem of standing as one of the relationship between the claimant and the claimed right and presents the different regulations of this problem in national legal orders. After a brief treatment of the question of standing of states in cases involving their own legal interests (Chapter 2), Günther addresses the right of states to bring claims based on erga omnes norms (Chapter 3). A cursory outline of the development of public interest norms in international society is followed by an analysis of the structure and content of erga omnes norms. Günther correctly distinguishes these norms from `classical' norms operating in bilateral inter-state relations. Unlike many other writers, he argues that there exists a subjective right (in the broader sense) of each state to the observance of erga omnes norms under general international law, and of state parties to conventions safeguarding the public interest. In his view, this `subjective right in the broader sense' cannot be distinguished from the `classical' subjective rights of states arising from bilateral inter-state relations. Based on this assumption, Günther describes the relationship between erga omnes and jus cogens norms. He observes that the latter are always binding erga omnes. In his view, all universal erga omnes norms are also part of jus cogens, for they cannot be modified by simple agreement between two or more states because they are owed to the community of states.

After outlining examples of erga omnes norms under present international law, Günther examines whether these norms can be enforced through action before the ICJ. He concisely presents the various cases in which the Court has dealt with erga omnes norms. This review of various ICJ decisions and individual opinions between 1970 and 1995 leads to the conclusion that a majority of judges assumed that in cases involving erga omnes norms all states should have standing - a conclusion which, of course, has yet to be confirmed in reality, as the Court has not decided any cases to date based on erga omnes norms. This conclusion is discussed in relation to the discussions within the International Law Commission and in legal literature. Günther draws on the debates on the right of third states to take reprisals in cases of violations of erga omnes norms. In his view, the most important argument against the legality of third party reprisals - namely, the threat to stability - does not apply to the issue of standing. Günther therefore concludes that in cases of alleged violations of erga omnes norms, every state has standing to bring a claim, provided that jurisdiction of the Court has been established.

In the last part of Chapter 3, Günther addresses various procedural difficulties that may often arise in cases involving erga omnes norms, including the issue of the absent third state. In Chapter 4, he analyses procedures before other international judicial institutions, such as the European Communities' Court and WTO panels, as well as monitoring mechanisms under human rights treaties.

In sum, Günther has written a very interesting study, whose main conclusion on the right of all states to enforce erga omnes norms through judicial action can be fully endorsed. Given the increasing importance of norms in the public interest, the book will attract a large number of readers amongst academics as well as legal practitioners.

Less persuasive is Günther's line of reasoning behind his thesis that all states possess a `subjective right in the broader sense' to the observance of erga omnes obligations (at 89-99). While it is conceded that the relationship between `injury' (Article 40 of the ILC Draft Articles on State Responsibility), `legal interest' and `subjective right' is probably one of the most difficult topics of the whole problem of erga omnes norms, Günther does not seem to analyse the relevant provisions with the necessary care. For example, he does not point to the problematic omission of any reference to erga omnes norms in Article 40 of the ILC Draft Articles. This raises the argument that violations of obligations erga omnes only injure the direct victim of the breach (unless they are human rights norms or amount to international crimes). Unfortunately, Günther does not deal with this argument, which seriously undermines his thesis. As regards the much-debated question as to whether it is possible to distinguish between direct and indirectly injured states, Günther, in the present reviewer's opinion, overly relies on the position adopted by the ILC. For example, he does not mention that nearly all governments, in responding to the ILC's position, have argued for a differentiation between the rights of directly and indirectly injured states. The conclusions on the `subjective right in the broader sense' are therefore less convincing than other parts of his study.

In addition, some further shortcomings need to be mentioned. Firstly, in a study devoted to enforcement through judicial action, one might have hoped for a clearer assessment of the effectiveness of judicial claims in international law. In particular, this enforcement mechanism suffers from the fact that there is no compulsory jurisdiction in international law - an obvious fact that is only mentioned in a cursory manner (at 168, 227). Secondly, the treatment of the ILC Draft Articles on State Responsibility is not well structured. The Draft Articles are mentioned various times (at 94 et seq, 171 et seq.), but one looks in vain for a general assessment of their relevance to the subject of the study. Important features are only referred to in passing, such as the fact that the notion of `injury' in Article 40 is similar to the legal interest in raising a claim (at 193). Finally, the study (completed in 1998) would have benefited greatly if account had been taken of some recent books on similar subjects. In particular, it is regretful that André de Hoogh's study on Obligations Erga Omnes and International Crimes was not referred to. It would also have been interesting to compare Günther's very broad concept of erga omnes norms with the rather restrictive view that Maurizio Ragazzi has taken in his book The Concept of International Obligations Erga Omnes.¹²

Notwithstanding these shortcomings, Günther's work adds much to the present discussion on the enforceability of erga omnes norms. It makes a considerable contribution to a clearer understanding of the topic of `standing', which is complicated by and overloaded with domestic law analogies. In the end, it is the enforcement of international law through judicial means - albeit of limited effectiveness in current international law - that will be of greatest importance in an international community governed by the rule of law.

Christian Tams

Cambridge University

12 See the review in this issue, at ???.

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