*** IAIN CAMERON (Ed.): EU Sanctions: Law and Policy Issues Concerning Restrictive Measures. Intersentia Publishers (31 Groenstraat, B-2640 Mortsel. Tel: (32-3) 6801550 - Fax: 6587121 - email: mail@intersentia.be - Internet: http://www.intersentia.com ). Supranational Criminal Law: Capita Selecta series, No. 15. 2013, 268 pp, €60, £57, $84. ISBN 978-1-78068-141-2.
Few people, apart from specialist lawyers and diplomats and a handful of European or UN officials, are capable of imagining how sanctions (given the euphemistic term 'restrictive measures' in EU jargon) that the EU applies autonomously or under the leadership of the United Nations' Security Council, are a hymn to complexity and are fed by legal controversy. The essays brought together in this book by academic experts from the various arms of law (procedural law, constitutional law, human rights, criminal law and international public law) provide critical explanations of this matter, where transparency is the exception rather than the rule.
How can one measure the impact - or more precisely, the impacts plural - of targeted sanctions deployed by the Security Council from the 1990s onwards against individuals and bodies suspected of being a threat to international peace and security, particularly terrorists? How coherent are "administrative" blacklisting measures with other existing and proposed EU measures in justice and home affairs promoting the criminal law model for dealing with the problem of terrorism? How can one ensure fair trials when accusations are based on material collected by the surveillance services and therefore secret by nature? How does a system of "composite" decision-making (when a measure is partly national and partly at the EU level) avoid the risk that gaps arise in systems of legal protection? If we can (or must) continue to have sanctions in the area of terrorist financing, then can they be made compatible with fundamental principles of national criminal law and criminal policy? These are some of the questions addressed by the authors in detailed legal arguments as the guardians of law and the primacy of law in the face of interference that is problematic, to say the least, in their view, from governments, civil services and particularly members of the United Nations' Security Council, the United States in particular.
The backdrop is painted in the introduction by Prof. Iain Cameron, putting the rising power of targeted sanctions by the UN in context and providing a precious reminder of how the sanctions emerged in the EU before the Lisbon Treaty along with developments since then, and a critical analysis of this dove-tailing of measures and decision-making procedures. In order to understand the controversial nature of the question, it is helpful to remember key elements of the 'personal reflections' of the author on the Kadi / al-Barakaat case, the epilogue to which was recently seen at the European Court of Justice (see page 7 of EUROPE 10893 of Tuesday 23 July). Professor of international public law at Uppsala University, Iain Cameron was mandated first by the Swedish government, and then by the Council of Europe and the European Parliament, to study the legal problems raised by the UN Security Council putting three Swedish passport-holders of Somali origin on a blacklist, as requested by the United States' president at the time, George Bush. The Swedish government's requests for an explanation were ignored, the Security Council following the United States (and UK)'s line of refusing to comment. Prof. Cameron started off by making objections and proposals to ensure that there should be legal guarantees surrounding the process of people being put on blacklists. He was greeted by absolute silence. In November 2003, the European Commission and the German and Swedish governments organised a conference on the subject in New York, where it became clear that many members of the UN Security Council believe that Security Council decisions cannot be countered by anyone, not even by courts wishing to protect specific rights. In 2006, a new critical report from Prof. Cameron, compiled upon the request of the Council of Europe, won wider support, but legal advisors from the United Kingdom and Russia repeated 'the mantra that the UNSC was there to be obeyed.' The author therefore informs the Swedish foreign minister that the only way of getting any changes in the UN sanctions system isfor the European Union Council of Ministers (and therefore the Swedish government itself) to be defeated at the European Court of Justice in an appeal by the three Swedes. The author explains in detail the various stages of the procedure that finally led to the European judges putting a 'constitutional limit' on UN sanctions and on international law. Rather than being democratic, he explains that this is generally done by strong countries in their own interest.
Michel Theys
*** MASSIMO FICHERA, JENS KREMER (Eds.): Law and Security in Europe: Reconsidering the Security Constitution. Intersentia Publishing (see above). Ius Commune Europaeum series, No. 112. 2013, 252 pp, €55, £52, $77. ISBN 978-1-78068-147-4.
Security is such a mishmash of concepts. In the name of national security, reason of State has sometimes been able to prevail in history and these days fundamental rights can be limited on the pretext to ensuring security in the face of terrorist threats. But at the same time, security can be conceptualised as a right, the right not to be imprisoned arbitrarily, for example, and the source of new rights. Drawn up by eight researchers specialising in various areas of law, this book attempts to shed light on some of the main challenges that arise when law and security come into encounter. The first part examines general theoretical problems related to the terminology and contextualisation of security in relation to law, along withan analysis of the different security mindsets and their roles in law and jurisprudence, a conceptualisation of the European security constitution, an approach to security as an existential threat for the community, and more besides. In the second part of the book, other authors examine the impact of security on specific branches of law, including security and rights in the war of terror, the effects of administrative counterterrorism measures on the requirements of transparency, access to information and procedural fairness, the transnationalisation of criminal law and the relevance of general EU constitutional principles in the context of EU criminal law.
(MT)
*** M. ELIANTONIO, CH. W. BACKES, C. H. VAN RHEE, T. N. B. M. SPRONKEN, A BERLEE: Standing up for Your Right(s) in Europe. A Comparative Study on Legal Standing (Locus Standi) before the EU and Member States' Courts. Intersentia Publishing (see above). Ius Commune Europaeum series, No. 116. 2013, 603 pp, €85, £81, $119. ISBN 978-1-78068-156-6.
This hefty tome is based on a report presented at the European Parliament to explain the notion of locus standi, a Latin term used in legalese to mean the right of taking a case to court. The authors make a comparative analysis of legal provisions, doctrine and case law on locus standi before civil, administrative and criminal courts of some selected legal systems and before the EU courts. Nine EU Member States are reviewed, namely Germany, Belgium, France, Hungary, Italy, the Netherlands, Poland, Sweden and the legal system itself in England and Wales, along with the legal system in Turkey. The first section of the book focuses on the legal framework concerning locus standi before EU Courts in actions for annulment, actions for failure to act and damages actions. The analysis shows whether there are peculiarities in the standing approach in a specific policy (such as environmental policy) and tries to explain such peculiarities. The authors highlight the current limitations concerning standing for the defence of general interests (such as in environmental claims) and the recognised role of third parties. Finally, the authors discuss the implications of the EU accession to the Aarhus Convention and of the future EU accession to the ECHR (European Court of Human Rights) for the issue of standing. The second section of the book learns lessons from national reports - found in full in annexes - before a detailed comparative overview is given in the final chapter. Based on the situation emerging in the different systems, the authors formulate recommendations and suggest improvements to the locus standi system.
(PBo)
*** JOHANNES KEILER: Actus reus and participation in European criminal law. Intersentia Publishing (see above). School of Human Rights Research Series, No. 60. 2013, 583 pp, €95, £90, $133. ISBN 978-1-78068-135-1.
In recent years, the European Union has continued to expand its powers in the criminal law domain, be it to tackle terrorism, the trafficking in human beings, the trafficking in arms or drugs, organised crime or money-laundering. At this stage in its development, however, European criminal law lacks explicit general principles dealing with criminal liability, which are crucial to secure a transparent and equal application of criminal law in the Member States. Arising from a doctoral thesis for Maastricht University, this book examines this gap, and the author aims to establish what actus reus and rules on participation should look like in European criminal law. Actus reus is a Latin term used in legalese to mean indictment. In addition, the author investigates inchoate offenses and corporate criminal liability.
(PBo)
*** PATRICK KEYZER (Ed.): Preventive Detention: Asking the Fundamental Questions. Intersentia Publishing (see above). 2013, 307 pp, €69, £66, $97. ISBN 978-1-78068-117-7.
The cover of this book has a picture of Dreyfus in prison, making no bones about the fact that the authors cast a critical eye in their essays on the ever more controversial question of preventive detention. Can preventive detention regimes be consistent with human rights? Are risk assessments methodologies sufficiently reliable to justify preventive detention orders? Better still (or worse still, depending on one's viewpoint) are there policy alternatives to preventative detention, which is authorised and sometimes used without restraint for alleged terrorists or sexual criminals? The eminent experts provide answers to these questions by analysing the rules and jurisprudence on preventive detention in Germany and the United Kingdom, and also in Australia, the United States and New Zealand. It will come of a surprise to no-one to learn that the book's editor points out that several of the authors highlight dangers associated with the increasing use of preventive detention…
(MT)
*** JOSEP M. TAMARIT SUMALLA: Historical Memory and Criminal Justice in Spain. A Case of Late Transitional Justice. Intersentia Publishing (see above). Series on Transitional Justice, No. 14. 2013, 209 pp, €69, £66, $97. ISBN 978-1-78068-143-6.
Some people describe the transition from Spain under Franco to Spain as a democracy as a process of amnesia, but demands for justice and compensation have been growing, giving rise to the concept of 'post-transitional justice' or, rather, of 'late transitional justice.' The specific characteristics of the Spanish transition and lessons to be learned from it are examined in this book in the light of the political laws and legal decisions introduced in Spain in recent years and decades. The author defends the viewpoint that criminal law is difficult to apply to the past, but simply pretending nothing ever happened is certainly not the right way to go about things.
(PBo)
*** STEPHANIE DEIMEL: FRONTEX. Das EU-Außengrenzmanagement vor dem Hintergrund kontemporärer Migrationsbewegungen. Peter Lang (1 Moosstrasse, Postfach 350, CH-2542 Pieterlen. Tel: (41-32) 3761717 - Fax: 3761727 - email: info@peterlang.com - Internet: http://www.peterlang.com ). Politik und Demokratie series, No. 28. 2012, 172 pp, €34-95. ISBN 978-3-631-63353-3.
A graduate in politics from Vienna University, Stephanie Deimel looks in this book at Frontex, the European agency for operational management of European Union Member States' borders. She starts by examining how comprehension of national borders has developed, looking at the notion of frontiers and the appearance of the idea of 'territoriality.' She goes on to detail the different theories of migration, before offering a history of the development of European policy on migration and borders, from the Treaties of Rome to the Maastricht Treaty via the Schengen Agreements. Stephanie Deimel ends with a presentation of Frontex itself, whose structure and work she examines before assessing its activities and future prospects.
(SH)