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

2. 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,

3. 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,

4. 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,

5. 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,

6. 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”

7. 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,

8. ”not only the states,. But also the peoples of Europe…..”,

9. 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,

10. 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?

11. 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,

12. ”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.

13. ”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,

14. 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,

15. 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,

16. 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,

17. 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?

18. 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)