The EU: a cosmopolitan vanguard?

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Sep 25, 2008 - In signing the Charter of the United Nations, States not only benefit ... by a constitution and not just a 'permanent congress of states' – such as the League of ..... overwhelming majority of Irish voters on 12 June 2008, but it has ...
The EU: a cosmopolitan vanguard? Paper to the ECPR Fourth Pan-European Conference on EU Politics, University of Latvia, Riga, 25 September 2008

Erik O. Eriksen ARENA - Centre for European Studies at the University of Oslo Arena, P.O. Box 1143, Blindern, N-0317, Oslo, Norway. http://www.reconproject.eu [email protected]

ABSTRACT. Through establishing autonomous powerful institutions the states of the conflict-ridden European continent have domesticated international relations among themselves. However, juridification and executive dominance prevails and the lingering question is whether the ensuing order can be legitimate. This is examined with regard to the recent attempts to bring basic rights and democracy to bear on the European Union. Neither the Charter nor the Constitutional Convention indicated that the EU would develop into a democratic state. The EU is not a nation, nor in possession of coercive state instruments. Rather it can be seen as a regional cosmopolitan entity. The multilevel constellation that makes up the EU represent a governmental structure in which supranational authorities monitor the conduct of lower levels on the basis of a set of basic normative principles. Key words: Juridification, cosmopolitanism, democracy, European Union, Constitutional Treaty

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Introduction It was in Europe the modern system of states was invented and it is Europe that has come farthest in changing it. We witness a significant development of rights and law enforcement beyond the nation state. Processes of institution building at the European level are challenging the fundamental building blocs of democratic rule in Europe and constrain the will power of the states. Consider for example the sanctions imposed on Austria in 2000 by the fourteen other Member States of the European Union (the EU) for letting Haider’s Freedom Party - a party held to be ‘racist’ - into government. It was the Member States that decided to impose sanctions against Austria - in line with Article 7 (TEU). The EU has now amended this article to ensure that breaches of fundamental principles can be sanctioned. That a new order is underway is perhaps most clearly revealed in the initiative taken to make a Charter of Fundamental Rights of the European Union. It is the sovereignty of the modern state as laid down in the Westphalian order in 1648 that is at stake with the institutionalization of human rights beyond the nation state. With this Treaty, the rulers’ external sovereignty was safeguarded and the international order became founded on the principles of co-existence and non-interference among sovereign states. The constitutional basis of Westphalian international relations is jurisdictional pluralism, meaning that there is no superior political community to which the states are subordinate.1 This principle can not prohibit genocide or other crimes against humanity. It is a principle that has protected the most odious regimes. To illustrate, it was only when Hitler-Germany attacked Poland that World War II broke out, not when the persecution of Jews started. This also indicates the limitations of nationally founded and confined democracy. However, legal developments over the last half-century have been remarkable, and one of their main thrusts has been to protect human rights. The development of the UN (and regional entities such as the European Convention on Human Rights (ECHR)), whose global entrenchment has been re-enforced through multilateral arrangements for regulating economic international affairs (such as Bretton Woods, the GATT and the WTO), and their accompanying set of institutions, first delimited, and later redefined, the principle of state sovereignty.

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This rights development brings up a tension between democracy and human rights. This is so because human rights are universal and refer to humanity as such – they are correct according to the free will of autonomous persons – and they can, when positivized, be enforced by courts. When not sanctioned by proper democratic institutions such rights enforcement implies juridification. Democracy on its part refers to a particular community of legal consociates who come together to make binding collective decisions. Democracy depends on particular states with very different political cultures, which are geared toward self-maintenance: the primary responsibility of the decisionmakers is their own constituency at the potential detriment of individual rights and the interests of other states. Hence, democracies may be illiberal. To resolve this tension, cosmopolitan democracy, where actors see themselves as citizens of the world and not merely of their countries, is required. I claim that the EU can be a vanguard of such an endeavor. The background for this claim is that the European Union has developed beyond an international organization and derivative democratic construct. In contrast to an international organization, whose democratic quality would be entirely derived from the member states, the EU has supranational features and a democratic vocation. It has become a power-exercising supranational polity, which only can become legitimate as far as it establishes direct links to the citizens. Presently, the EU is democratically deficient due to lack of collective identity, a European wide public sphere, and a proper institutional-representative structure that could ensure accountability. However, can the democratic reform process at the European level, in the EU, abolish the democratic deficit and hence close the gap between abstract human rights and the need for democratic legitimation? In this article, I start by identifying the tension between democracy and human rights. In Europe, the states of a conflict-ridden continent have domesticated international relations among themselves through a process with strong traits of juridification and executive dominance. Then I address the whether the ensuing order can be democratic by analyzing the recent process of institutional reform. Next I point to the puzzle that the EU undertakes constitutional reforms, while at the same time some vital preconditions for democracy are lacking. Can there be democracy without ‘a people’?

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The tension between democracy and human rights Under modern conditions there can be no democracy without the protection of the fundamental rights of the individual. But how can we know that rights are right? The problem of human rights politics The tension between international law’s recognition of sovereign states and the regulative idea of equal rights and freedom for all is reflected in an actual opposition between democracy and law, and between domestic and foreign policy. The growth in international law limits the principle of popular sovereignty. Human rights are moral claims, and as such can be justified with regard to the duties that bind the free will of autonomous persons; in other words with regard to the autonomy, or the integrity and dignity, of the individual. Rights protect the autonomy of the selflegislating individual and can be seen as having intrinsic validity. However, human rights are not merely moral entities; they are also entrenched in positive legal norms as basic rights - judicial rights. They are embedded in positive, legal norms as judicially enforceable rights. When enacted or positivated they are turned into basic rights at the courts’ disposal. Even though democracy is internally related to rights, it is only through a democratic process of law enactment that we can know which rights are right, and how they should be delineated and applied. The problem with human rights as the sole basis for international politics is due to their non-institutionalized form. Human rights exhibit a categorical structure – they have a strong moral content: ‘Human dignity shall be respected at all costs!’ Borders of states or collectives do not make the same strong claim – ‘they do not feel pain’. In case of violations of basic human rights, our human reason is roused to indignation and urge for action: When compared with crimes against humanity, and when all other options are exhausted, the international society should be enabled to act, even with military force. The problem is, however, that human rights when conceived abstractly, do not pay attention to the context – e.g. to the specific situation

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and ethical-cultural values – and may violate other equally valid norms and important concerns. As human rights do not respect borders or collectives, as they appeal to humanity as such, they may threaten local communities, deep-rooted loyalties and valuebased relationships. The general problem comes down to the following: in concrete situations there will be collisions of human rights as more than one justified norm may be called upon. To choose the correct norm requires interpretation of situations and the balancing and weighing of rights.2 This requires the institutionalising of proper adjudicative procedures. Another problem with the politics of human rights is its arbitrariness at this stage of institutionalization. They are enforced at random. Some states are being punished for their violations of human rights while others are not. All too often ideals are a sham – they are open to manipulation and interest-politics and renewed imperialism. Human rights politics is often power politics in disguise. The solution to the twin problem of the politics of human rights – the problem of norm collisions and of arbitrariness – is positivization and constitutionalization, which confers upon everybody the same obligations and connects enactment to democratic procedures.3 Hence, democratization may be the right cure, but what does democracy mean today? Deliberative democracy Democracy can no longer mean only the collective self-determination of a community based on one conception of who ‘we’ are, of the common good, as this has become abstract, has dissolved, and has retreated into institutional procedures: ‘Our common good, then – the good and interests we share with others – rarely consists of specific objectives, activities, and relations; ordinarily it consists of the practices, arrangements, institutions, and processes..’.4 Hence popular sovereignty no longer mean the substantive will of a people, it does not constitute a single subject which is capable of acting, it acts only in the plural; ‘the People’ consists of many peoples. The will of the people then rather stems from the way the procedures for opinion-formation and decision-making – legislative procedures of constitutional democracies –

register and integrate all the

interests and values of the citizenry. Popular sovereignty has become proceduralized in

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modern states as laws are correct when they have been decided through correct procedures. This is reflected in the basic principle of discourse theory, according to which only those action norms are valid that all affected persons can agree upon as participants in rational discourses.5 Only public deliberation can get political results right because it entails justification towards the ones affected. The principle of democracy can be pinned down to two basic criteria: autonomy and accountability. By autonomy is meant the basic democratic principle that those affected by laws should also be authorized to make them. This criterion posits that publicly authorized bodies of decision-making react adequately in the determination of the political community’s development insofar as the citizens can be seen as acting upon themselves. Accountability designates that the decision-makers can be held responsible by the citizenry and that, in the last resort, it is possible to dismiss incompetent rulers. It speaks to a justificatory process that rests on a reason-giving practice, wherein the decision-makers can be held responsible to the citizenry, and that, in the last resort, it is possible, to dismiss, incompetent rulers.6 Consequently, in order for a polity to be democratically legitimate, it must, at a minimum, be organized in such a way that there is free access to the public realm, that governmental positions are open to all, that those who govern are appointed by election at regular intervals and their actions subjected to public scrutiny and judicial review. For these two principles to be realized, ensuring that the citizens can govern themselves autonomously via law and politics, congruence between de jure jurisdiction and the actual reach of political bodies is required. For citizens to be able to control their agenda, possessing the capacity to act on common problems and realize collective goals, overlap between political and social space is required. The validity of the laws stems from the legislative processes of a sovereign community. The propensity to adopt rights, then, depends on the quality of the political process in a particular community. But a particular state may fail to respect the rights and liberties of their citizens as well as other states’ legitimate interests. Even though the contradiction between rights and democracy is, in principle, a false one, since there can be no democracy without the protection of individual rights, and since rights are not valid

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unless they have been democratically enacted; in practical terms there is a contradiction as democracy is only institutionalized at the level of the nation state – and more often seen as ‘a national community of faith’ that autonomously governs itself. Only with the transformation of international law into a law of global citizens – cosmopolitan law – can this problem be solved.7 Cosmopolitanism provides ‘support for a multilevel system of governance in which supra-state authorities monitor the conduct of states (and powerful economic and social institutions) and seek to ensure their compliance with cosmopolitan ideals of justice’.8 Thus there is a need for political institutions that are capable of nonarbitrary and consistent norm enforcement, and in the advent of a democratized and empowered UN, regional institutions like the EU are of the utmost significance.

Juridification beyond the nation state In the last decades we have witnessed a significant development of rights and law enforcement beyond the nation state that bypasses democratic control. It is a way to handle increasing interdependence between the states as well as to ensure human rights protection. Law’s expansion Juridification denotes the expansion of legal norms and the accompanying system of adjudication to new domains of social life. Usually it depicts law’s expansion and differentiation as well as increased conflict resolution through legal means. However, every political order entails juridification, in the sense that the constitutive rules of the order involve adding legal competencies concerning procedures, authority, and the use of power.9 Constitutive juridification is not the conventional meaning of juridification as it usually is taken to imply the imposition of a cooperative scheme upon others who cannot influence or revise the terms.10 In this sense even slaves and children enjoy rights. Juridification in the present use entails that the citizens have obtained rights and can sue the authorities but they have not been able to give these rights to themselves.. The development of the European community is a prime example of juridification beyond the nation state as citizens are being subjected to regulations stemming from Community law-making and intergovernmental proceedings. However, the problem it is not confined

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to Europe: Nor is it confined to human rights protection as the increasing regulation of international trade, finance, transport and communication affairs testify to. Regulatory institutions such as the WTO, the World Bank and the IMF impose a scheme of global economic cooperation on the basis of inter-state bargaining. There is also an increasing amount of judicial procedures at the international level set up to adjudicate in disputes over breaches of international law. ‘The diplomatic dispute settlement procedures under GATT, for instance have been replaced by a judicial dispute settlement mechanism under the WTO, which is authorized to convict, and if necessary punish, states that do not fulfill their commitments.’.11 Since 1995 the dispute-settlement mechanism of WTO has become independent of the contracting parties. We are witnessing the expansion of rule of law principle internationally complementing the domestic one, in areas such as international trade, security, labor, and environmental law.12 Similarly, human rights are institutionalized in international courts, in tribunals and increasingly also in politico-judicial bodies over and above the state that control resources for enforcing norm compliance. Examples are the rights embedded in the UN system, the international criminal tribunals for Rwanda and the former Yugoslavia, The Hague Court of Justice, The International Criminal Court, and the European Court of Justice. European states have incorporated ‘The European Convention for the Protection of Human Rights and Fundamental Freedoms’ and many of its protocols into their domestic legal systems. Thus legal developments over the last century have been remarkable and one of their main thrusts has been to protect human rights. Today, almost nobody can be treated as a stranger devoid of rights as legal entitlements are being entrenched in power wielding systems of action as well as in the actual policies pursued. There are no lawless areas left.13 Aggressors can be tried for crimes against humanity, and offensive wars are criminalized: Sometimes human rights protection trumps state sovereignty. The NATO war against Serbia in 1999 to protect an innocent population was formally illegal according to the UN

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Charter, but was declared legitimate by the Independent International Commission on Kosovo 2000. Sovereignty constrained Today, for (some) states to be recognized as sovereign, they have to respect basic civil and political rights. In principle, then, only a democratic state is a sovereign state and in such a state the majority can not suppress minorities. Moreover, as states have become increasingly interdependent and intertwined – as they have to cooperate in order to realize their interests – the parameters of power politics have changed.14 Hence the supreme principle of the state is no longer merely survival – salus populi suprema lex est. Sovereignty depicts the legal capacity to act on common action norms – the right to exercise authority. But this very concept has changed, from denoting the supreme legal authority of the state to uphold the law within a certain territory and being independent from any external authority,15 to subjecting state power to higher order principles. Sovereignty has become disaggregated.16 It is a principle stating that an order is sovereign if it is not dominated by others, but it does not any longer depict the status of territorially limited absolute powers. It has become an ordering principle of international affairs, as well as a status and a set of rights and privileges.17 A UN panel writes: In signing the Charter of the United Nations, States not only benefit from the privileges of sovereignty but also accept its responsibilities. Whatever perceptions have prevailed when the Westphalian system first gave rise to the notion of State sovereignty, today it clearly carries with it the obligation of a state to protect the welfare of its own peoples and meet its obligations to the wider international community18 However positive by moral standards such a development is, it does not harmonize with the democratic idea that the people should be making the laws they are to obey. At the international arena, human rights are not democratically enacted. The new situation is marked by lack of democratic accountability, by juridification, technocratic governance and executive dominance. The latter denotes the net empowerment of the executive branch of states at the expense of parliamentary involvement and popular control. This applies when legislative assemblies and the general public are unable to put decision-

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makers to account. The inscrutability of decision-makers at the international level due to lack of transparency exempts the executives of justificatory requirements and gives them an advantage in terms of information, which they can make use of in a technocratic way. Lack of congruence Today, citizens’ interests are affected by processes of denationalization and globalization in ways and by bodies which are difficult to hold responsible via the ballot box.19 There is no longer overlap between decision-making participants and affected parties. Denationalization shatters the two symmetries necessary for effective participation, first between the citizens and the decision-makers that ‘… they are to hold to account, and secondly between the “output” (decisions, policies and so on) of decision-makers and their constituents’.20 Without input congruence, participation in making the decisions that affect one, there can be no self-determination; and without output congruence, without overlap between the polity and the territory it controls, there can be no effective participation. In a ‘globalized’, denationalized world, the requirements of legitimacy and of efficiency, of input and output congruence, no longer coincide. Those who can be kept accountable have little control over the factors affecting peoples’ lives, and those who have the decisive power are beyond democratic reach. The quest for post-national democracy, then, is due to the problem of handling not only arbitrary political power, but juridification beyond the nation state, and it is a difficulty that stems from the problem of institutionalizing human rights correctly. As it is impossible to be fully democratic within a non-democratic world order, what is needed at the international level is not merely an intergovernmental organization that ensures observance of peace and human rights but rather a supranational body able to adjudicate in the name of all: an authoritative third party that acts as a mediator, arbitrator and judge.21 This requires a union of states bound by a constitution and not just a ‘permanent congress of states’ – such as the League of Nations - as Kant foresaw; because ‘(J)ust how the permanence of this union, on which “civilized” resolution of international conflict depends, can be guaranteed without the legally binding character of an institution analogous to a state constitution Kant never

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explains’.22 The point is then barely that peace is only feasible among democratic states, but moreover that the union of states must itself be democratic in one form or the other. This is the background for the need of democratic orders over and above the nation state the need for a legislative entity, which can give and change norms at the international level. Institutions above the nation-state then are not only needed to constrain the internal willpower of the state, i.e., the power exerted over its citizens, but also to make possible democratic legislation. Article 28 of The United Nations Universal Declaration of Human Rights (1948) made it clear that there is such a right: Everyone is entitled to a social and international order in which rights and freedoms set forth in this Declaration can be fully realized.

However, it is the EU that is the most prominent representative of and vanguard of such.

Rectifying processes Today’s Europe is marked by complex interdependence embedded in a multilevel governance configuration. Supporters of integration argue that supranational democracy is necessary to handle the problems of interdependence. Supranational Polity-building The EU has sustained a rapid expansion of political regulation in Europe, and has over a period of fifty years transformed the political landscape in a profound manner. Integration has deepened as a wide range of new policy fields have been subjected to integrated action and collective decision-making. This has taken place not only with regard to trade, monetary and business regulation, fishing and agriculture, but also with regard to foodstuff production, gene- and bio-technology, labour rights, environmental protection, culture, tourism, immigration, police and home affairs and now also with regard to a common foreign and security policy. The EU has succeeded in entrenching peace and it has established a Single Market, a Monetary Union – the Euro – a European citizenship and a Charter of Fundamental Rights. Even though the powers of the Union in many policy areas - such as social and tax policy - are severely restricted, a significant

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amount of laws and amendments in the nation states stem from the binding EU decisions, directives and regulations. The EU has also widened, and has successfully managed to include new members. The prospect of membership has made a huge contribution to regional stability and prosperity, and has proved to be a very effective instrument for advancing democracy, rule of law and security. Holocaust denial and, more generally, anti-semitism will preclude accession to the Union. All applicant states have to incorporate the acquis communautaire – the body of the EU’s legal norms - and the accession criteria for membership, including democracy and human rights, in addition to administrative and economic ones. There has been a fundamental domestic change in response to EU rules and regulations: The antagonisms between the great powers of Europe, France and Germany in particular, have been tamed, a safe umbrella for devolution, for the domestic accommodation of sub state ‘nations’ has been established, a smooth transition of former dictatorships in the South and in former Communist states in the East into democratic constitutional states has been facilitated.23 At present, the EU consists of 27 member states and wields influence over states and citizens through such supranational institutions as the Commission, the European Court of Justice (ECJ), the European Parliament (the EP), as well as through the intergovernmental Council - the most powerful body. The present state of affairs is due to a protracted process of integration. Since its inception the basis for cooperation has deepened and broadened, as reflected in the founding Treaties: from the Paris (1951) and Rome (1957) Treaties, through the Single European Act (1986), Maastricht (1992), Amsterdam (1997), Nice (2000), up to the Laeken declaration (2001) and the work on forging a Constitutional Treaty (2002-2005) and the Lisbon Treaty (2007). The supranational character of the legal structure of the EU started with the acceptance of a constitutional reading of the founding treaties, already in the 1950s, and explicitly in the 1960s,24 which transformed the European Economic Community (EC) from an international regime into a quasi-federal legal system based on the precepts of higher law-constitutionalism. This was synthesized by the ECJ in the combined doctrines of

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direct effect (which affirms the full legal character, under certain conditions, of EC norms- first explicated in relation to Treaty provisions, later said to apply also to directives in the 1970s, and consequently implies that such norms might grant rights to European citizens qua Europeans) and supremacy of Union law (first explicated by the ECJ in 1964, stating that national norms must give way to Community ones if an irreducible conflict arises within the scope of application of the Treaties). This has been coupled with the growth of the number of EU provisions and Court rulings, where the Court acts as a trustee of the Treaty and not as an agent of the member states. The EU appears to have reached a stable political form based on a material constitution.25 The net upshot is that the requisite third party, in the form of an arbitrator, but not in the form of a democratic legislative entity, has been established in Europe. What started out as piecemeal problem-solving for the member states – underpinned by the peace motive – has ended up in a supranational order subjecting the constituent parts to collectively binding decisions. The unbridled sovereigns authorized by the Westphalian order are now brought under the rule of a supranational polity which disposes of an authoritative dispute resolution mechanism. Beyond Intergovernmentalism European integration started with the institutionalization of a ‘High Authority’- the Commission – with some regulatory competence as a third party distinct from the contracting parties.26 However, the legitimacy of Community Law still derived from the member states; it was initially indirect, and, like that of any international organization, depending on its ability to produce outcomes. But today, the democratic legitimacy of the member states cannot be established independently of the EU because these have become so deeply enmeshed that the pattern of legitimate authority in the states has been transformed.27 The EU is clearly something less than a federation but more than an international organization, a club, a ‘Zweckbundnis’ (Verband), regime or a confederation where the member states are the contracting parties. To the latter, democratic criteria do not apply

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as it is the states and not the citizens that make up the ‘constituencies’; states are the sole sources of legitimacy and they act internationally on indirect and delegated powers on governance functions. Here, ‘constitutions’ are contracts as ‘the pouvoir constituant‘ is structured as a juridical relationship between separate parties: a ‘gentlemen’s agreement’ presupposing individual membership and sovereignty, and where the signatories represent individual modalities of government, rather than a social pact among the citizens. Contract-based orders do not put up normative criteria of political legitimacy.28 However, in contrast to what is the case with an ordinary international treaty, where presumably equal parties enter into, renew or terminate an agreement, the EU is based on a status contract, whose purpose it is to change the status of one of the parties. Its object is to change, confirm or ‘nullify the status of at least one of the parties’.29 The purpose of the status contract is to change the members’ status from nation states to member states. In contrast to an international organization, the EU has become a polity in its own right, and one that subscribes to democracy and human rights as legitimating criteria. The Treaty of Maastricht (1992) established a European Union citizenship. Democracy came to the fullest expressions through the decision in 1976 to elect the representatives of the European Parliament by direct universal suffrage; the Treaty of Maastricht mentions it in the fifth recital of the Preamble; and eventually democracy was made the constitutional principle of the Union in the Amsterdam Treaty: |‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’30 Another contrast to an international organization is EU’s organized capacity to act – to make collectively binding decisions. The EU, unlike an international organization carries out its affairs not through diplomacy and bargaining, but through a set of institutions and procedures in which the decision-makers have to justify their claims. The European Treaties have the function of a constitution as they establish both a unitary European citizenry, distinct from the national ones, and a set of autonomous European bodies, which make European-wide law and are devoted to the Union itself.

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EU transactions are thus not merely functional problem-solving – they have turned ‘political’. The presence of market-correcting or positive integration measures, such as certain redistributive schemes and means of standard-setting, and the increased use of qualified majority voting, testify to the EU as a system of dominance revolving on more than the ‘low politics’ or politics of the lowest common denominator. The European integration project, as many have pointed out, cannot be understood simply as a win-win situation, nor is this project merely about solving the perceived problems of the member states in line with the Pareto criterion.31 What then is the normative basis of the reforms undertaken? Chartering Europe The EU has not only embraced democratic standards, it has also taken concrete measures to rectify the democratic deficiencies. This has happened through a decades-long process in which EU institutions, notably the ECJ and the EP, member state governments and parliaments, social movements and popular pressure, have moved the EU into a postnational polity aspiring to direct legitimacy: the power wielding institutions should be authorized by the people and be accountable to the affected parties directly. This is seen first of all in the Charter of Fundamental Rights, which is the most explicit commitment as of yet to a full blown political union founded on democracy, rule of law and human rights - a rights-based citizens’ Union.32 It was drafted by a political body, which referred to itself as a Convention, set up to consolidate the fundamental rights to be protected by the EU (based on the existing acquis communautaire), and it managed to work without major difficulties and produce a consensual result.33 The Convention method is based on broad participation - a majority of the members were parliamentarians who acted on an open mandate - on public debate, on procedures for deliberation rather than decisionmaking through crude bargaining at Intergovernmental Conferences (IGCs), which is the usual way of making Treaty changes.

At the December 2000 Summit in Nice, the Charter was solemnly proclaimed and was picked up by the Laeken process and the Convention on the Future of Europe, which started its work in February 2002 and completed its activities in June/July 2003. All 15

articles on the rights of EU citizens in the Treaty of the Union have now been collected in one document of 54 articles, inspired by the ‘The European Convention for the Protection of Human Rights and Fundamental Freedoms’ (ECHR) (without replacing it), the Social Charters adopted by the Council of Europe and by the Community and the case-law of the European Court of Justice (ECJ). The Charter contains provisions on civil, political, social, and economic rights. Put together, these are intended to ensure the dignity of the person, to safeguard essential freedoms, to provide a European citizenship, to ensure equality, to foster solidarity, and to provide for justice. The number and range of rights that are listed is comprehensive. The Charter enumerates several ‘rights to solidarity’ – hence, the protection of social rights is now included as a basic commitment for the Union - even though the realization of these is not within the actual competence of the Union. They nevertheless constitute vital reasons to except market freedoms in the pursuit of social and redistributive goals.34 In addition to provisions which most charters and bills of rights hold, and which pertain to such clauses as the right to life, security, and dignity, there are numerous articles that seek to respond directly to contemporary issues and challenges (including abolition of the death penalty, prohibition against cloning, and protection of intellectual property).

The Charter reflects the well established rights and value-basis of the Community35 and, even though the Charter is not as yet legally binding, ‘(i)n practice, (…) the legal effect of the solemn proclamation of the Charter of Fundamental Rights of the European Union will tend to be similar to that of its insertion into the Treaties on which the Union is founded’.36 Since it consolidates existing positive law, in one sense it may be seen as already binding. It has also increased its legal bite over a short period of time as the Court of First Instance has invoked the Charter as legal authority in several judgments.37 It has been referred to by institutional actors like the European Ombudsman and the Commission, and most Advocates-General of the European Court of Justice have also made use of provisions of the Charter as legal grounds of their opinions.38 Bills of rights empower the judges to protect liberty and hinder that democracy by means of majority vote crushes individual rights. It is the protection of individual rights and the 16

constraints on state autonomy that marks the normative basis of the European constitutional development.39 The cosmopolitan principles are also reflected in the early decisions of the ECJ on direct effect and supremacy, in the conditionality clause (all aid and trade agreements are conditional on respect for human rights), in gender-equality and citizenship-rights policies, a process culminating with the Charter of Fundamental Rights; whose preamble states that: [T]the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.40 The Charter expresses the cosmopolitan idea that individuals are the sole basis of political orders. The Treaty of Maastricht established European Union citizenship, and this together with the Charter’s entrenchment of a host of fundamental, individual rights, makes up the EU’s normative basis. The individual is, so to say, in the process of being liberated from the confines of the individual nation state in Europe as institutions above the nation-state are now in place with the competence to constrain the internal willpower of the state, i.e., the power exerted over its citizens. The EU citizens are privileged when travelling and trading in Europe. The European nation states are reconfigured on the basis of a rights providing European level.

By this, international law is pushed beyond the

limitations of the Charter of the United Nations, which on its behalf prohibits violence, and thus aggression against other states, but forbids the intervention in the internal affairs of a state (Article 2.7). A true republic certainly depends on bodies above the nation state that citizens can appeal to when their rights are threatened, but can such bodies be democratic?41 This is a question much neglected in the peace-through-law-movement spearheaded by Hans Kelsen.42 Law without democracy is hegemonic.

Democracy without a state and a nation? The EU is an entity with strong supranational elements equipped with an organized capacity to act, and it has now undertaken steps to reduce its legitimacy gap.

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Re-democratization In Europe, the EU testifies to political initiatives that have resulted in supranational institutions, which have shown a remarkable and unprecedented capacity to take on new collective measures and deepen integration. But, as I already claimed supra, this process of Europeanization is tainted with juridification and executive dominance. It is a process that has sapped parliamentary sovereignty at the member state level, and the question is whether democracy at the European level can compensate for this. The ongoing process of rights entrenchment in the EU comes close to a constitutionalizing one. From a cosmopolitan point of view, such a development is important as it contributes to establish democratically controlled institutions at the regional level to cope with unattended problems. State and world citizenship form a continuum as people increasingly are affected by supranational powers. The EU can usefully be conceived of as an intermediate institution for grappling with exigencies connected to globalization, and thus is an interesting experiment in post-national regulation.43 It reduces the problem of arbitrary power as well as that of hegemonic law at the international level. The method adopted in 1999 by the Union for establishing the Charter offered a blueprint for an alternative mode of Treaty change which, after the Nice fiasco, became the role model for the so-called Laeken Convention of 2002-2003.44 Also this Convention had a distinctive deliberative mark, as opposed to the hitherto closed, secretive and executivedriven intergovernmental mode of treaty change.45 It succeeded in establishing a draft Constitutional Treaty (CT) which was signed by the Council 29 October 2004, and which contained measures aimed at mending the EU’s legitimacy gap. These included, in addition to the mentioned incorporation of the Charter of Fundamental Rights, the strengthening of the EP and of the national parliaments, the right to initiate a legislative proposal, and the generalization of co-decision and qualified majority voting as decisionmaking procedures. Further, the CT adopted a constitutional language for legislation as it introduced changes in the legal terminology, re-naming regulations and directives laws and frameworks law, thus corresponding to national practice.46 The CT depicted the EU

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as a supranational polity based on a dual principle of legitimation: It is both a Union of states and of citizens. Democratization contained The CT was in the end ratified by 18 member states, but were rejected in two popular referenda – in France and the Netherlands in May-June 200547 – and in July the European leaders resolved that there should be a ‘reflection break’ and postponed the time for the final ratification. The European Council, in June 2007, after tortuous negotiations, reached agreement on convening a new Intergovernmental Conference to amend the treaties.48 The new ‘Reform Treaty’, adopted in Lisbon in October 2007, will replace, if ratified by the Member States, the defunct Treaty establishing a Constitution for the European Union. was Also this Treaty was however rejected, this time by an overwhelming majority of Irish voters on 12 June 2008, but it has been ratified by parliamentary vote in 22 member states, and its future remains uncertain.49 In the Lisbon Treaty, the constitutional language and the EU symbols – a flag and the anthem – and the characterization of Community legal acts as laws and framework laws are dropped. But the new Treaty retains most of the provisions of the CT, including the democratic reforms and the Charter (with some opt-outs). The full text of the Charter of Fundamental Rights is replaced by a short cross-reference with the same legal value.50 It raises the spectre of further incremental democratic reforms through rather undemocratic means. From a democratic point of view, the problem is that this reverts the process back to the closed and, democratically speaking, largely unaccountable European Council-led intergovernmental procedure. Neither the Charter Convention nor the Laeken Convention did have a satisfactory popular mandate and were thus problematic in democratic terms.51 But the Charter consolidates in a synthetic fashion the acquis communautaire on the protection of fundamental rights, and as such, its legitimacy is grounded on the constitutional traditions common to the Member States, whose democratic credentials are beyond doubt. Moreover, as most of those participating in the consolidation exercise were

19

parliamentarians, the concrete text of the Charter can claim a democratic legitimacy superior to Treaty making at IGCs. From a democratic point of view, law made by representatives through open deliberation fares better than that based on judicial activism and closed-door inter-state bargaining. It takes public deliberation to justify rights as democracy requires membership and participation in the very structures that affect individual interests. Compared to this criterion the two aforementioned processes were unsatisfactory. On the other hand, democracy always entails undemocratic stipulations in the first place: it presupposes rules – constitutive juridification: procedures, rights – that are prior to democratic decision – making. But when certain vital conditions for democracy are not in place at the European level, is post-national (parliamentary) democracy at all possible? Can there be democracy without a collective identity, ‘a people’?

Emerging cosmopolitanism What is new and interesting about the EU, is its democratic features, even though the integration process has mainly taken place through law. The EU has become a more democratic institution because members of its Parliament are directly elected by citizens in the member states (and the use of QMV has eroded the ability of individual countries to hold up new legislation). The ECJ has been a driving force in the political development of the EU and has independently strengthened the role of the European Parliament (EP). It has subjected the EP’s decisions to substantive judicial review and thus has strengthened and authorized the view of it as an autonomous political body within the Union. Initially the EP was a consultative body – a talking shop – with very limited powers and made up foremost of representatives of national parliaments. Over time, and in particular after the introduction of direct election of MEPs in 1979, its decision-making powers have grown.52 The EP increased its status and power with the Single European Act (1986), which marked a watershed as the cooperation procedure was introduced, then reinforced by the Maastricht and Amsterdam Treaties, which transformed the EP from a secondary institution to an important legislative actor.53 It has now achieved co-

20

decision making power with the Council in many areas, and is increasingly curtailing the power of the Commission. Despite the fact that the EP is not an agenda setter – this is the prerogative of the Commission – and its power is severely restricted compared to the powers of national parliaments, it has changed from being a Parliament only in the name to acting like one. The Constitutional Convention to a large degree embraced the parliamentary model of democratic legitimacy. It is the parliamentarian form of democracy - at the national and European level - that has carried the day in the reform process. Bluntly, democratizing the Union means its parliamentarization. Now, this may be puzzling and indeed imply a technocratic ‘overstretch of democratic resources’. As there is no ‘European people’ – no demos – full parliamentarization of the EU is not possible according to many analysts.54 The constitution-making subject is missing according to the no-demos thesis’ proponents. Whoever says constitution says state!.55 Without a collective identity symbolized by a people, there can be no authority conferred upon a government to rule in the name of all. Such make up the so-called non-majoritarian sources of legitimacy – or the socio-cultural substrate - that makes collective decision making possible. Majority rule rests upon allegiance and a notion of solidarity that is only conceivable in terms the symbolic establishment of a demos – a people – founded on a sense of unity and allegiance. This is held to be a precondition for a democratic sovereign capable of collective decisionmaking; for the outvoted minority to abide by the law, for the willingness of the citizens to pay for the misfortune of their compatriots. Such a solidaristic substrate is required for the formation of a collective identity strong enough to ensure that the compatriots not only see themselves as members of a community based on liberty but also as one based on equality and solidarity.56 However, the EU needs not proceed along this developmental path of at state based democracy. Modern constitutions can be disconnected from the state form, insofar as they remain linked in with the project of modernity, whose normative telos is to make the addressees of the law also their authors.57 A true republic presupposes democracy, but democracy need not presuppose the state. A non-state entity can make up a system of

21

government insofar as it performs the functions of authorized jurisdictions.58 As the EU is neither a state nor remotely a nation state, there must be another basis than pre-political agreement on substantial values and common interests for the justification of rights and policymaking. It has been suggested that the inclusive procedures constituted by the rights of the citizens to participate and hold to account, can bear the burden of legitimation alone. Democracy and human rights, which reflect the core cognitive legitimacy basis of nation states, are held to be the only viable normative resource basis for a post-national political order.59 This refers to the bare bones of the constitutional state’s cognitive political principles – rule of law, popular sovereignty and citizenship – in contrast to the pre-political we-feeling and allegiance making up the existential common ground of nation-hood, of love of country. As the Union is not drawn on essentialistic grounds, it can only justify itself through drawing on the principles of human rights, democracy and rule-of-law – even when dealing with international affairs; hence, it underscores the cosmopolitan law of the people. Nor does the EU possess the coercive instruments of a state. It has inordinately weak enforcement mechanisms and relies mainly on the administrations of the member states to implement its policies. It is especially weak in the classical state-type functions: it has neither a police force, nor an army of its own, and there are no European prisons. This reduces both European legislators’ and courts’ leverage at the supranational level. This is a democratic problem insofar as it raises questions about the Union’s ability to uphold a system of rule which can be made effectively binding on every one to the same amount and degree. On the other hand, the self-proclaimed democratic system of law-making and norm interpretation at the European level, constrained by the member states, has built-in assurances that the multilevel constellation that makes up the EU does not become an unchecked entity – an eventual ‘world despotic Leviathan’. In such a perspective, the borders of the EU are to be drawn both with regard to what is required for the Union itself in order to be a self-sustainable and well-functioning democratic entity, and with regard to the support and further development of similar regional associations in the rest of the world – namely, with regard to the viability of the

22

African Union, MERCOSUR, ASEAN, etc. In this perspective, the EU’s borders would be drawn with reference to functional requirements both for itself and for other regions, all within the framework of a democratized, rights-enforcing UN. The ensuing order would not aspire to become a world organization, but would be cosmopolitan in the sense that its actions would be subjected to the constraints of a higher-ranking law and be committed to the fostering of similar regions in the rest of the world.

Conclusion The Union has not been able to plainly ground its actions on ‘what Europe is’ or ‘what it is to be a European’. As a collective identity in a thick sense is lacking, identification with common concerns can not be taken for granted. Rather it has to be created through the political struggle for recognition and justice. The principles of due process of law, inclusive decision-making procedures and the protection of human rights make up the legitimacy basis of a post-national political order, hence pointing the EU in a cosmopolitan direction. The EU is a large scale experiment searching for binding constitutional principles and institutional arrangements beyond the mode of rule entrenched in the nation state. State power is being domesticated by supranational law, and the only legitimacy basis for this law is the constitutional developments in Europe that emerged in the wake of the French revolution, and which for more than 200 years now has contributed massively to the stabilization of nation states. In this tradition, constitutions are seen as arrangements for respecting the equality and the autonomy of the individual in the realization of the idea of popular self-government. The European integration process testifies to a promising, yet unaccomplished process of democratization that can only be carried through by a more encompassing, open and comprehensive constitutionalizing process than we have witnessed so far.

23

Notes 1

R. Jackson, The Global Covenant: Human Conduct in a World of States, Oxford: Oxford University Press, 2000, p. 178. Prohibition of violence against sovereign states was thus prioritized over the protection of human rights.

2

Cf. K. Günther, The Sense of Appropriateness: Application Discourses in Morality and Law, New York: State University of New York Press, 1993; R. Alexy: ‘Discourse Theory and Human Rights’, Ratio Juris, 1996, vol. 9, no. 3, 209–35.

3

Unless the danger prevails that agents and ’leading beneficiaries of globalization will construct notions of world order and transnational citizenship which allow them to pursue their interests without much accountability to wider constituencies’ (R. Falk, ‘The Making of Global Citizenship’, in Bart Van Steenbergen (ed.), The Condition of Citizenship, London: Sage, 1994, pp. 127–40; see also A. Linklater, The Transformation of Political Communities, Oxford: Polity Press, 1998).

4

R. Dahl, Democracy and Its Critics, New Haven, CT: Yale University Press, 1989, p. 307.

5

J. Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law, Cambridge, MA: MIT Press, 1996, p. 107.

6

D. Held, Democracy and the Global Order. From the Modern State to Cosmopolitan Governance, Stanford: Stanford University Press, 1995, p. 16; M. Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’, European Law Journal, 2007, vol. 13, no. 4, 447-68, p. 452.

7

On this see e.g. K. O. Apel, ‘Kant’s “Toward Perpetual Peace” as Historical Prognosis from the point of view of Moral Duty”, in J. Bohman and M. Lutz-Bachmann (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal, Cambridge, Mass.: The MIT Press, 1997; J. Habermas, Die Einbeziehung des Anderen: Studien zur politischen Theorie, Frankfurt: Suhrkamp 1996; J. Habermas, Between Facts and Norms; Contributions to a Discourse Theory of Law and Democracy, Cambridge, Mass.: The MIT Press, 1999, pp. 46–59; J. Habermas, ‘Bestiality and Humanity: A War on the Border between Legality and Morality’, Constellations, 1999, vol. 6, 263–72; cf. H. Brunkhorst, W. R. Köhler and M. Lutz-Bachmann (eds), Recht auf Menschenrechte, Frankfurt: Suhrkamp 1999; S. Benhabib, with J. Waldron, B. Honig, and W.

24

Kymlicka, (ed. by R. Post), Another Cosmopolitasnism, New York: Oxford University Press, 2006.

The inhabitants would see themselves as citizens of the world and not

merely of their native countries. 8

S. Caney, Justice Beyond Borders: A Global Political Theory, Oxford: Oxford University Press, 2005, p. 182.

9

L. C. Blichner and A. Molander, ‘Mapping Juridification’, European Law Journal, 2008, vol. 14, no. 1, 36-54.

10

J. Bohman, ‘Reflexive Constitution-making and Transnational Governance’, in E. O. Eriksen (ed.), Making the European Polity: Reflexive Integration in the EU, London: Routledge, 2005, p. 39.

11

B. Zangl, ‘Is there an emerging international rule of law?’, European Review, 2005, vol. 13, no. s1, 7391, p. 73.

12

R. O. Kehoane, A. Moravcsik, and A. Slaugther, ‘Legalized dispute resolution: Interstate and transnational’, International Organization, 2002, vol. 54, no. 3, 457-88.

13

H. Brunkhorst, ‘Menschenrechte und Souveränität – ein Dilemma?‘, in H. Brunkhorst, W. R. Köhler and M. Lutz-Bachman (eds), Recht auf Menschenrechte, Frankfurt: Suhrkamp, 1999; O. Höffe, Demokratie im Zeitalter der Globalisierung, München: C.H. Beck, 1999; D. Held, ‘Law of States, Law of Peoples: Three Models of Sovereignty’, Legal Theory, 2002, vol. 8, no. 1, 1–44; N. Luhmann, Recht der Gesellschaft, Frankfurt: Suhrkamp, 1983; B. Fassbender, ‘The United Nations Charter As Constitution of the International Community’, Columbia Journal of Transnational Law, 1998, vol. 36, 529-619; N. Deitelhoff, Überzeugung in der Politik, Frankfurt: Suhrkamp, 2006. T. Erskine (ed) 2003 Can institutions have Responsibilities? New York: Palgrave

14

See: Habermas, ‘Bestiality and Humanity’, above note 8; J. Habermas, Der gespaltene Westen, Frankfurt: Suhrkamp, 2004; K. O. Apel, ‘On the Relationship Between Ethics, International Law and the Politico-Military Strategy in Our Time’, European Journal of Social Theory, 2001, vol. 4, no. 1, 29-39; Bohman and Lutz-Bachmann (eds), Perpetual Peace, above note 8; R. A. Falk, Human Rights Horizons: The Pursuit of Justice in a Globalising World, London: Routledge, 2000.

15

J. H. Morgenthau, Politics among Nations, New York: McGraw-Hill, 1978, p. 321.

25

16 17

A. M. Slaughter, A New World Order, Princeton, NJ: Princeton University Press, 2004. G. Morgan, The Idea of a European Superstate: Public Justification and European Integration, Princeton, NJ: Princeton University Press, 2005, p. 139. A state does not cease to be sovereign even if it has delegated certain of its rights, powers and privileges to a supranational order whose decisions it cannot veto; but a state can reach a point wherein it has delegated so much that other states no longer recognize it as a sovereign state

18

United Nations, A More Secure World: Our Shared Responsibility. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, New York: UN, 2004, p. 17.

19

Denationalisation, which is a less demanding concept than globalisation, denotes the relative increase of cross-national transactions (compared to national exchanges) and the extension of social spaces beyond national control (M. Zürn, The state in the post-national constellation – societal denationalization and multi-level governance, ARENA Working Paper 35/1999, Oslo: ARENA, 1999, p. 7).

20

Held, Democracy and the Global Order, supra note 7, p.16.

21

N. Bobbio, ‘Democracy and the International System’, in D. Archibugi and D. Held (eds), Cosmopolitan Democracy: An Agenda for a New World Order, Cambridge: Polity, 1995.

22

J. Habermas, The Inclusion of the Other: Studies in Political Theory, Cambridge, MA: MIT Press, 1998, p. 169.

23

The EU’s track record in sustaining peace and creating stability and wealth is outstanding. See e.g. F. Schimmelfenning and U. Sedelmeier (eds), The Europeanization of Central and Eastern Europe, Ithaca, NY: Cornell University Press, 2005; M. Keating and J. McGarry, Minority Nationalism and the Changing International Order, Oxford: Oxford University Press, 2001.

24

See the leading cases: 26/62 Van Gend en Loos and 6/64 Costa. On the supranational character of EC law, see J. H. H. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration, Cambridge: Cambridge University Press, 1999; Alter, 2001; Stone Sweet, 2004.

25

A. J. Menéndez, ‘Three Conceptions of the European Constitution’, in E. O. Eriksen, J. E. Fossum and A. J. Menéndez (eds), Developing a Constitution for Europe, London: Routledge, 2004.

26

26

It was supranational from the very inception. ‘Later the supranational authority of the EC Commission was downgraded, but, nevertheless, the Community institutions constitute political agency and enjoy a considerable degree of political autonomy’ (B. Kohler-Koch, ‘European governance and system integration’, in E. O. Eriksen, C. Joerges, and F. Rödl (eds), Law and Democracy in the Post-national Union. Arena Report No 1/2006. Oslo: Arena, 2006, p. 94).

27

EU decisions impinge on national priorities, influence the domestic allocation of resources and constrain the sovereignty and autonomy of the states. The EU performs functions that affect interests and identities all over Europe. In fact, the EU, which is a creature of the member states, has contributed to transform them, either directly or through unleashing processes of mutual learning and adaptation. The identity as well as the statehood of European states stem from their Europeanness as national law has become entangled with EU law practice to the degree that the states are no longer merely ‘nation states’. The collective self-conception of nation states has changed as they have become ‘Member States’ with rights and duties so that they can not serve as the source of their own legitimacy independently of the EU. Their legal identity has been Europeanized.

28

G. Frankenberg, ‘The Return of the Contract: Problems and Pitfalls of European Constitutionalism’, European Law Journal, 2000, vol. 6, no. 3, 257-76, pp. 260-61.

29

C. Offe and U. K. Preuss, ‘The Problem of Legitimacy in the European Polity: Is Democratization the Answer?’, in C. Crouch and W. Streek (eds), The Diversity of Democracy: Corporatism, Social Order and Political Conflict, Cheltenham: Edward Elgar, 2007, p. 192.

30

TEU Art. 6.1.

31

This states that only decisions that no one will find unprofitable or that will make parties worse off, if not accomplished, will be produced, and hence lend legitimacy to international negotiations (F. W. Scharpf, Governing in Europe: Effective and Democratic?, Oxford: Oxford University Press, 1999: 237).

32

E. O. Eriksen, J. E. Fossum, and A. J. Menéndez (eds), The Chartering of Europe: The Charter of Fundamental Rights and its Constitutional Implications, Baden Baden: Nomos, 2003; S. Peers and A. Ward (eds), The EU Charter of Fundamental Right, Oxford: Hart Publishers, 2004; T. Hervey

27

and J. Kenner (eds), Economic and Social Rights under the EU Charter, Oxford: Hart Publishers, 2003. 33

J. Schönlau, ‘New Values for Europe? Deliberation, Compromise, and Coercion in Drafting the Preamble to the EU Charter of Fundamental Rights’, in Eriksen et. al. (eds), The Chartering of Europe’, supra note 32; J. Schönlau, Drafting the EU Charter: Rights, Legitimacy and Process, Basingstoke: Palgrave Macmillan, 2006; D. Tarschys, ‘Goal Congestion. Multi-Purpose Governance in the European Union’, in Eriksen et. al. (eds), The Chartering of Europe’, supra note 32.

34

A. Menéndez, ‘”Rights to Solidarity” Balancing Solidarity and Economic Freedoms’, in Eriksen et. al. (eds), The Chartering of Europe’, supra note 32, p. 192. Thus, the EU can no longer be seen merely as a market project, if it ever could.

35

The Charter ‘(…) is a legally enforceable text which underlines the importance of the rule of law in the EU and it is the ultimate proof of the focal role that EU citizens have come to play in the European integration process’ (K. Lenaerts and E. de Smitjer, ‘A “Bill of Rights” for the European Union’, Common Market Law Review, 2001, vol. 38, no. 2, 273-300, p. 300).

36

Ibid, p. 298-99.

37 Among others, Case T-54/99, max.mobil Telecommunications Service GmbH v. Commission, Judgment of 2 May 2001, not yet reported, par 48 and Case T-211/02, Tideland Signal Limited/Comisión, Judgment of 27 September 2002, not yet reported, par. 37Case T-77/01, Territorio Histórico de Álava - Diputación Foral de Álava, Territorio Histórico de Bizkaia – Diputación Foral de Bizkaia, Territorio Histórico de Gipuzkoa – Diputación Foral de Gipuzkoa y Juntas Generales de Gipuzkoa, Comunidad autónoma del País Vasco – Gobierno Vasco contre Commission des Communautés européennes, Judgment of 11 January 2002, not yet reported. See par. 35. 38

AG Mischo went further and commented that: ‘I know that the Charter is not legally binding, but it is worthwhile referring to it given that it constitutes the expression, at the highest level, of a democratically established political consensus on what must today be considered as the catalogue

28

of fundamental rights guaranteed by the Community legal order.’ Advocate-General Mischo in Joined Cases C-20/00 and C-64/00, Booker Aquaculture Ltd. Cited from Brand 2002: 401-402. 39

See: M. Kumm, ‘Constitutional Supremacy and the Constitutional Treaty’, European Law Journal , 2005, vol. 11, no. 3: 262-307, p. 289; G. F. Mancini, ‘The Making of a Constitution for Europe’, Common Market Law Review,1989, vol. 26, no. 4, 595-614; P. Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law’, European Law Review, 1983, vol. 8, 155-157; E. Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’, American Journal of International Law, 1981, vol. 75, no. 1, 1-27.

40

‘Charter of Fundamental Rights of the European Union’, Official Journal, 2000, C 364/1.

41

Every system of domination requires justification because it affects the freedom, security and well-being of all the subjects – they benefit and threaten, reward and punish. According to the credo of democracy, all subjected to the law should have an equal say in its generation. The modern concept of democratic rule is closely tied to the western idea of individual freedom, perceiving the individual as equipped with inalienable and inviolable rights that every authority is bound to respect. Under modern conditions there can be no democracy without the protection of the fundamental rights of the individual. But how can we know that rights are right?

42

H. Kelsen, Peace through Law, Chapel Hill: University of North Carolina Press, 1944.

43

C. Joerges and M. Zürn (eds), Law and Governance in Postnational Europe: Compliance Beyond the Nation-State, Cambridge, Cambridge University Press, 2005; J. Neyer, Postnationale politische Herrschaft, Baden-Baden: Nomos, 2004.

44

Its membership was modeled on the Charter Convention, with a majority of parliamentarians. 46 out of 66 voting members, and 26 out of 39 from the candidate countries were parliamentarians. Its mandate was broader, its working method included working groups, and the applicant states had a number of representatives present, as active, participating, observers.

45

The process of making the Constitutional Treaty, then, was not a simple tug of war of interstate bargaining, designating that parties failed to get what they wanted and then struck a deal that was better than no deal at all. Rather, this was a process where deliberation constrained the power play of the great powers and, as has been revealed from participants’ own accounts, from interviews with participants and from numerous analyses, this was a process that improved members’

29

information on and judgments of the issues under debate. One participant who happened to be professor of public law, notes: ‘This may not be the perferct way to write a constitution, but it certainly had the merit of drawing the arguments into the openair and subjecting them to genuinely critical debate that led to modification of positions by all or most participants’ (N. MacCormick, ‘The European Constitutional Process: A Theoretical View’, Anales de la Cátedra Francisco Suárez, 2005, vol. 39, 299-319, p. 316). The final product represents a collective improvement in the sense that the competences and capabilities of the Union were extended. See e.g.: E. O Eriksen et. al. (eds), Developing a Constitution for Europe, supra note 25, especially the chapters by Closa and Fossum and Magnette; D. Göler, Deliberation – Ein Zukunftsmodell europäischer Entscheidungsfindung? Analyse der Beratungen des Verfassungskonvents 2002-2003, BadenBaden: Nomos, 2006; Chr. Karlson: ”Deliberation at the European Convention: The final verdict”. European Law Journal vol 14. Vol. 5; 2008, pp 604-619|. 46

(Article I-33) On this see: A. Menéndez, ‘Between Laeken and the Deep Blue Sea - An Assessment of the Draft Constitutional Treaty from a Deliberative-Democratic Standpoint’, European Public Law, 2005, vol. 11, no. 1, 105-144.

47

In France 55 per cent ‘no’ and in the Netherlands 61.5 per cent ‘no’.

48

The detailed mandate for the IGC is set out in CE 11177/07: ANNEX I.

49

As of 1 September 2008.

50

Due to strong British opposition, the Charter will not be legally binding in the UK

51

J. E. Fossum and A. J. Menéndez, ‘The Constitution’s gift? A Deliberative Democratic Analysis of Constitution Making in the European Union’, European Law Journal, 2005, vol. 11, no. 4, 380410.

52

See: R. Bourguignon-Wittke, E. Grabitz, O. Schmuck, S. Steppat, and W. Wessels, ‘Five Years of the Directly Elected European Parliament: Performances and Prospects’, Journal of Common Market Studies, 1985, vol. 24, 39-59.

53

B. Rittberger, Building Europe’s Parliament, Oxford: Oxford University Press, 2005, p. 177.

54

‘…parliament without a demos is conceptually impossible, practically despotic’ (J.H.H. Weiler, U. Haltern and F. Mayer, ‘European Democracy and its Critique’, in J. Hayward (ed.), The Crisis of Representation in Europe, London: Frank Cass, 1995, p. 4). See further: R. Bellamy and D. Castiglione, ‘The uses of Democracy: Reflections on the European Democratic Deficit’, in E. O. Eriksen and J. E. Fossum (eds), Democracy in the European Union: Integration Through Deliberation? London: Routledge, 2000; J. Bohman, ‘Reflexive Constitution-making’, supra note

30

10; B. Peters, ‘Public Discourse, Identity and the Problem of Democratic Legitimacy’, in Eriksen (ed.) Making the European Polity, supra note 10. 55

D. Grimm, 2004, ‘Treaty or Constitution? The legal basis of the European Union after Maastricht’, in Eriksen et. al. (eds), Develolping a Constitution for Europe, supra note 25.

56

C. Offe, ’”Homogeneity” and Constitutional Democracy: Coping with Identity Conflicts through Group Rights”, Journal of Political Philosophy, 1998, vol. 5, no. 2, 163-82; D. Miller, On Nationality, Oxford: Oxford University Press, 1995. Solidarity is, however, both the pre-requisite for deliberation and collective decision making and a result of such. From a discourse-theoretical point of view the question is not merely how much such commonality exists, but also how it can be brought about in trust fostering institutions – in inclusive publics of different kinds (Habermas, The Inclusion of the Other, supra note 22, p. 161).

57

Frankenberg ‘The Return of the Contract’, supra note 28.

58

E. O. Eriksen and J. E. Fossum, Reconstituting European Democracy, ARENA Working Paper 01/2008, Oslo: ARENA, 2008.

59

J. Habermas, The Postnational Constellation. Political Essays, Cambridge: Polity Press, 2001, pp. 113ff.

31