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:
"Changing Sovereignty in Europe"
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 01061213
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 01061213
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.
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.
"Sovereignty, the Nation-State, and Integration History"
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 02061213
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 02061213
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.
"Expressing Sovereignty in the European Union: An Irish Perspective
on Constitutional Identity"
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 03061213
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 03061213
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.
"Sovereignty, Stability and Solidarity: Conflicting and Converging
Principles and the Shaping of Economic Governance in the European Union"
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 04061213
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 04061213
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.
"The Reflexive Relationship between Internal and External
Sovereignty"
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 05061213
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 05061213
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.
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.
"Some Thoughts on the Future of Sovereignty in International Law
Twenty Years from Now"
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 06061213
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 06061213
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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