The EU between constitutionalism
and international organizations
International constitutional law and democracy
23.10.08
Inger-Johanne Sand
• International law
• - the law between nation-states, (UN), - treaties,
• - in substance, - and in legal validity,
(international relations)
• - diplomatic negotiations, - governments,
• Supranational law
• - law by international organizations which has been delegated
specific parts of the constitutional power of the nation-states, (EU)
• - legislation which has direct effect on citizens,
(law/politics)
• - EU/EC institutions and member states governments,
• Transnational law
• - law or legal practice which has been developped among non-state
actors, - such as experts, NGOs, standardization committes, (ISO)
• - lex mercatoria : private international law,
(organization studies)
• - administrative, technical processes,
• - second-level organs of government, NGOs, corporations,
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• International law
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– the law between nation-states, (UN)
- international treaties between states,
- customary law and basic principles (jus cogens),
Traditionally the law is in substance – between states, but
increasingly it deals with matters also internally to the
states :
- trade law, evironmental and climate law,
- international human rights
The law is legally valid directly only between the states,
To be applied nationally – to the citizens directly – it has
to be made national law,
Often without courts and inefficient sanctions,
Conflicts among states: International Court of Justice,
• Supranational law :
• - law by international organizations which has been
delegated specific parts of the constitutional power of the
member nation-states, (EU)
• - the legislation concerns and has direct effect on
citizens,
• The EU as case :
• - legal substance: - the free movement of goods,
services, persons and capital, - competition law, environm. law, etc
• - Executive and administrative powers : the Commission.
• - national implementation,
• - legal control and review : European Court of Justice, working efficiently as a court,
• - citizens are directly affected,
• - human rights are implied,
• Transnational law :
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- guidelines, soft-law, legal practice,
- international standardization,
- expert groups,
- second-level organs of governing bodies
(cooperative committees),
• - INGOs
• - transnational corporations,
• - Lex Mercatoria, - global private law
regimes,
• The constitutionality of the EU :
• - direct effect of regulations, directives and treaties,
• - not only the governments, but also the peoples,
• - supranationality,
• - comprehensive legislative competences,
• - comprehensive administrative apparatus/ powerful
Commission with comprehensive adm., execut powers,
• - admin and judicial decisions sanctionable in member st.
• - judicial review of directives in relation to treaties,
• vertically integrated politico-legal systems,
• judicial review
• no legislative/constitutional ”kompetenz-kompetenz”
• Many new questions arise with the supranational
treaties which did not arise with the international
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- purpose-oriented interpretation,
- implied powers,
- proportionality,
- human rights,
• When does a supranational treaty also become
a constitutional treaty :
• - several types of power are transferred, building on each
other :
• - legislative, judicial (sanctionable), and
executive/preparatory,
• - direct effect on citizens,
• - to create a vertically integrated legal order of its own,
• ”not only the states,. But also the peoples of
Europe…..”,
• What have the vital changes been?
• - the starting point: the Rome treaty,
• - not only the states, also the peoples,
• - the European Court of Justice,
• - the cases: van Gend en Loos, - Costa Enel,
• - direct effect, - supremacy, - judicial review,
• - the acquis communautaire,
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1986 : the Single European Act,
- qualified majority, - the internal market,
1992 : Maastricht : - extended competences,
- the Euro,
Lisbon : - social coherence
Nice : extended competences,
• Theories :
• Intergovernmentalism : - the member states are still the main
actors,
• - supported by both neo-liberal and democratic ideologies,
• Neo-functionalism : - the doctrine of direct effect, the internal
market and the practice of the Commission and the Court, etc., have
created a particular and integrationist dynamic, with spill-over effects,
• - integration, -deliberative supranationalism,
• Constitutionalism: – vertical integration, - direct effect, transfer of constitutional powers,
• - normative and democratic constitutionalism,
• - democratic experimentalism,
• - strong and weak versions,
• Federations – confederations – or : sui generis?
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The ”democratic deficit” literature,
”The state”,
”The nation”
”The people” – ”the demos” – what is the
meaning of such a terminology ?
• Is there a ”peoples of Europe” ?
• Identity – citizenship. What are they connected
to? Instrumental vs more contextual citizenship.
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• Qualitative democracy vs. numeric democracy,
• ”The hallmark of citizenship in our democracies is that in
citizens is vested the power, by majority to create
binding norms…..”
• Such power has been found in the nation-states, but now
also in the Union….?
• Citizenship is also about a social reality.
• ”Nationhood is a form of belonging.”
• What is belonging ?
• There are also different forms of belonging:
- the family, the tribe, the nation,the region, the globe.
• ”At an inter-group level nationalism is an expression of
cultural specificity underscoring differentiation, the
uniqueness of a group as positioned in relation to others.”
• ”At an intra-group level it can be an expression
underscoring the commonality, the sharedness of a
group….” (p.342)
• ”The decoupling of nationality and citizenship opens the
possibility of thinking co-existing multiple demoi.” (p.344)
• - there may be citizenship, legitimacy and
authority on different levels,
• National citizenship:
• - a fundamental part of the basis for sovereign
nation-states,
• - citizenship as ”full” membership:
• - voting rights in all political / constit. elections,
• - may not be sent out of the state,
• - citizen rights and obligations,
• - legal equality among citizens,
• European Union citizenship:
• - complements, does not replace national citiz.sh
• - free movement of persons, (resid., work,)
• - participation in local and EP elections,
• Why EU citizenship :
• - is citizenship only a political and legal formality?
• - citizenship as social – as identity,
• - its unclear legal and political status: - a union of ”the
peoples of Europe”,
• Nation – people – citizenry,
• State – society,
• Ethnic origins (indigeneous peoples)
• Political state constructions,
• Identity – how is this created: - from national
identity to a variety of origins to identity,
• - our changed understanding of national citizenship and
the role of nation-states,
• What is identity today?
• - the problem that states have come to symbolize not
identity, but bureaucratization, centralization, government
– and not the peoples an their identity,
• - the market: - commodification, not identity,
• - symbolic power has moved elsewhere?
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- multiculturalism?
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- extreme individualisation?
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- fragmentation of world-views,
• - citizenship – ethos of the polity,
• - is there a civic European community / society and thus a
European ethos?
• - what is the role of ”human rights” in this discourse?
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- legally, - politically,
• Weiler is concerned with the degradation of the
political process in the EU and the increased
focus on a functioning market, and on rights as
liberal individual rights,
• - and on this basis: - what EU citizenship can be,
• ”In Western democracies public authority requires
legitimation through one principal source: - the citizens of
the polity”, (W. p.336)
• - do the nation-states still have this,
• - does the EU have this power and the legitimation?
• - what are the consequences of a lack of such
legitimation of public authority?
• Democracy is premised on the existence of a
demos,
• But what are the requirements for a demos to
exist?
• Who are the citizens of Europe?
• - there is a link between citizenship and identity,
• - Europe: - state not nation,
• - identity: -belongingness and originality,
• The different types of belonging:
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- to the family and the tribe, (loyalty)
- to the nation, (sharing values)
- to Europe, (sharing/ not sharing values)
(accepting others)
- globally, (accepting others)