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

• 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
  

4

• 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,

5

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

6

• 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,

7

• 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?

8

• 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,

9

• 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.

10

• 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,