The EU between constitutionalism and international organizations

1
The EU between constitutionalism and
international organizations

• International constitutional law and democracy
• 23.10.08
• Inger-Johanne Sand

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• 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
• 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,

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• 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,

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• Transnational law
• - 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,

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• 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
  

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• Many new questions arise with the supranational
  treaties which did not arise with the
  international
• - 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,

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• not only the states,. But also the peoples of
  Europe..,

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• 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,
• 1986 the Single European Act,
• - qualified majority, - the internal market,
• 1992 Maastricht - extended competences,
• - the Euro,
• Lisbon - social coherence
• Nice extended competences,

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• 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.
  
• Qualitative democracy vs. numeric democracy,

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• 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.

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• 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,

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• 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,

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• 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,

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• 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?
• - multiculturalism?
• - extreme individualisation?
• - 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?
• - legally, - politically,

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• 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?

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• 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
• - to the family and the tribe, (loyalty)
• - to the nation, (sharing values)
• - to Europe, (sharing/ not sharing values)
• (accepting others)
• - globally, (accepting others)