17 June 2014

Papers: Legal Scholarship Network: Legal Studies Research Paper Series

Papers:  Legal Scholarship Network:  Legal Studies Research Paper Series

Legal Scholarship Network: Legal Studies Research Papers Series, University College Dublin is now available on SSRN.  Content includes:

2013 marked the fortieth anniversary of Ireland’s membership of the EU and is also the year Ireland exited the Troika (European Commission, International Monetary Fund and European Central Bank) bail-out programme. The presence of the Troika generated considerable debate around the nature of Irish sovereignty drawing attention to the extent of economic interdependence. These debates prompted a conference where speakers could reflect on the nature of sovereignty. The five papers below were some of those presented that day.

There are four interrelated themes that emerge from these five papers. First, sovereignty is changing and will continue to change because sovereignty is inherently dynamic in nature. Second, membership of the EU shores up national sovereignty by acting as a mirror for it and by its dependence in particular on the democratic imperative of the state as a constraint on and legitimating mechanism for EU action. Third, national constitutions remain important in defining, sharing and limiting the sharing of national sovereignty with the EU and, finally, related to this, the nature of sovereignty differs between member states and as between national and international law. The changing and dynamic nature of sovereignty creates a conceptual space within which to consider the relationship between the EU and its Member States. It also points to a future where sovereignty will continue to change allowing for creative responses to the tensions between sovereign interdependence and sovereignty as a constraint on the EU in the context of changing sovereignty also in the international legal order.

This public lecture was given at the Royal Irish Academy on December 5, 2013, to keynote the 16th Irish European Law Forum on "Changing Sovereignty in Europe" at University College Dublin. In the context of the Eurozone crisis, few countries have experienced the changing nature of sovereignty more acutely than Ireland. But these acute transformations should not obscure for us how, in the context of European integration over the last half century, the transformation of sovereignty has also been a chronic phenomenon. This process began well before Ireland’s accession in 1973 and has certainly continued ever since. This lecture asserts that the changing nature of national sovereignty in relation to European integration is in fact a "new dimension to an old problem," albeit one with a peculiar, supranational dimension. That "old problem" is the legitimation of regulatory power as it diffuses and fragments away from more strongly-legitimated constitutional bodies of the nation-state – legislative, executive, and judicial – i.e., the privileged instrumentalities of sovereignty in modern liberal, representative democracies. This separation of regulatory power from the historically "constituted" bodies of the nation-state is the essence of modern administrative governance. In this sense, the changing nature of sovereignty in Europe is in fact part of a deeper historical transformation of modern governance tied not to integration per se, but rather to the emergence of the modern administrative state. One cannot understand this deeper transformation without an appreciation of the administrative state’s connection to – but also deep tension with – the constitutional consolidation of liberal, representative democracy as the presumptively legitimate form of "sovereign" self-government that took place over the course of the nineteenth and twentieth centuries.

The notion of constitutional identity has recently gained an unprecedented importance in the European Union. The similarities between the traditional Irish case-law and recent national decisions referring to this notion, notably in France and in Germany, makes of Ireland a relevant basis to inquire into a notion that remains elusive. In light of the Irish experience of membership to the European Union, the notion of constitutional identity finds its raison d’être in the recognition of the sovereign will to participate in the process of European integration. Therefore, normative conflicts are dealt with as a conciliatory balance between sovereign expressions of equal value. Due to the ineluctable nature of the process of European integration, the notion of constitutional identity corresponds to the necessity to design a suitable instrument for controlling the application of EU law. The identity value ascribed to certain constitutional provisions is gained from their very confrontation to EU law. This makes of the European Union this necessary otherness, the relationship with and reaction to are constitutive of the constitutional identity of Member States. The notion of constitutional identity thus departs from an essentialist understanding and corresponds to a specific interpretive practice. It is best understood as self-hood, i.e., as the continuing ability for the Member States to define themselves within the evolving process of European integration.

A. (TON) VAN DEN BRINK, JAN WILLEM CASPER VAN ROSSEM, Utrecht University - Utrecht Centre for Shared Regulation and Enforcement in Europe – RENFORCE

The central aim of this paper is to identify the content of the principles of stability, national sovereignty and solidarity and to analyse how these principles interact with regard to EU economic governance. The first prong of this paper research is largely conceptual in nature and looks at the principles of national sovereignty, stability and solidarity in a constitutional and conceptual way. The different conceptions of national sovereignty in the United Kingdom, Germany and the Netherlands are contrasted. The second part applies the principles of stability, solidarity and national sovereignty to the area of economic governance in the European Union. The second prong of our research takes a more practical viewpoint and focuses on the economic constitutional framework which the EU and the Member States have set up and in which they currently operate. Specifically, this part concentrates on the, mainly, executive measures which are adopted in the context of the European Semester. The analysis reveals an ambiguous relation and interaction between the principles, both at the conceptual level and at the level of economic policies. In any case, if national sovereignty is defined as being more than just the exercise of state powers, the interplay with solidarity and stability will not necessarily boil down to a zero-sum game. Instead, the three principles increasingly emerge as mutually indispensable and inseparable.

Sovereignty is deeply contested but omnipresent. The aim of this paper is not to offer a definitive conception of this multifaceted notion. It will rather identify three different dimensions that play a role in our understanding of sovereignty and use these as a basis to explain one particular aspect that has been underexplored in the academic debate: the link between internal and external sovereignty. Firstly, sovereignty describes a legal and political status; secondly, it refers to a factual condition; and thirdly, sovereignty entails a fiction that exists independently from factual or legal changes but that pervades our understanding. These three dimensions interlink and reinforce each other both internally (within the sovereign entity) and externally (in the international context).

The legal status and the factual condition usually, but not necessarily, come together. While territory, people and authority are usually considered the factual basis for legal sovereignty, there are no necessary and sufficient factual conditions that will automatically result in the legal status of being sovereign. As a fiction, sovereignty goes beyond power or legal entitlement. It grasps the deeper emotional and cultural dimension, the fear of losing control and ultimately relevance. Since popular sovereignty has replaced royal sovereignty, the internal political status is rooted in the consent of citizens. This creates a particular link of responsibility in that it aims to ensure that for any action of a sovereign entity there is ultimately an individual or a group of individuals that can be held responsible. This paper will explore to what extent this more recent understanding of internal sovereignty is and also should be relevant for our understanding of sovereignty more broadly, including external sovereignty as a condition and a fiction, but ultimately also as a legal status. Indeed, the paper argues there are pragmatic and normative arguments in favour of understanding internal and external sovereignty as a continuum. This confronts the traditional view of international law that denies this connection between the internal and external dimension of sovereignty entirely.

As we entered the twenty-first century questions were asked about the traditional Westphalian concept of sovereignty as part of the construction of a more coordinated international response to various humanitarian crises. The resulting 2005 World Summit Outcome document recognised that sovereignty carried responsibilities and if a state was unwilling (or unable) to meet those responsibilities then the international community could intervene. With the implementation of this principle (the responsibility to protect) the focus has shifted from respecting sovereignty to safeguarding the victims of the various crimes falling within the scope of the principle thus adding a new dimension to international law. It must be recognised that this is a very limited exception to sovereignty but it is not the only exception as international law has become increasingly fragmented with the introduction of various self-contained regimes in which special rules and techniques of interpretation apply. Included among these self-contained regimes is the law of the World Trade Organization. In 2006 the International Law Commission published their report on Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law. It concluded that although fragmentation has raised questions about the coherence of international law, it has increased its responsiveness to the regulatory context without seriously undermining legal security, predictability or the equality of States. This has been achieved through what the report characterised as a "basic professional tool-box" of interpretative techniques and the position accorded to jus cogens and obligations erga omnes. The tool-box has allowed international law to respond to various concerns, such as economic development, human rights and environmental protection but the resulting international legal system lacks the coherence exhibited by domestic legal systems. At this point, it must be recognised that that coherence has been increasingly undermined as problems having a regional or multilateral dimension require externally-sourced solutions which have an impact on sovereignty. If international law continues to respond to these problems through self-contained regimes then the fragmentation of international law will continue and sovereignty will continue to diminish. This contribution examines the continuing refinement of the tool-box as one method of addressing these problems before sketching an outline of a hierarchical system which could provide a solution to these problems. Both of these solutions have important implications for the future of sovereignty.


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