The EU between constitutionalism and international organizations International constitutional law and democracy 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,

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,

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 : - 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 - 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, 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?

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,

”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? - 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,

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