THE EU AS A DEMOCRATIC POLITY IN INTERNATIONAL LAW
     
Piece Palace
T.M.C. Asser Institute, Carnegie Foundation/Peace Palace Library, Euroknow and CLEER (Centre for the Law of EU External Relations) organized 28 June 2011 a conference whether the Lisbon Treaty has overcome the dilemma of establishing an EU as a Europe of Nation States (1), or merging into a United States of Europe.

From the outset, the process of European integration has been faced with a conceptual problem concerning the end goal or finalité politique of the project. Were the EU and its predecessors meant to form a confederation, which had to establish itself as a Europe of Nation States, or should the member states ultimately merge into a United States of Europe? This dilemma, which has been described already by Immanuel Kant in his 1795 essay 'Zum Ewigen Frieden' ('Perpetual Peace' 2), has led to a perennial stalemate in the debate about the nature and goal of the Union.
The purpose of the conference was to discuss whether the Lisbon Treaty has overcome this dilemma by constructing the EU as a democratic polity without turning the Union into a state and if so, what consequences that would be for the place of the EU as a polity in international law and for its role in international relations. The organisers brouht together an audience consisting of members of the European Parliament and national parliaments, judges of the ECJ and national constitutional courts, civil servants of the EU-institutions and the national administrations, representatives of the governments of the Member States, members of the corps diplomatique as well as members of the academic community and representatives of the media.

'The process of European integration that started after WW II, has not resulted in the creation of a new state. It has, nevertheless, contributed to an unprecedented spread of democratic governance on the European continent. While the initial impetus may be ascribed to the activities of the Council of Europe, founded in 1949 with a view to promote human rights, democracy and the rule of law, the European Communities (EC) and their successor the European Union (EU) have been and will continue to play an essential role in the process. The ambition of the EC, as an organisation for economic cooperation, was limited to the promotion of democracy at the level of the member states.

As a political entity, however, the EU also aspires to be a democracy of its own. The Lisbon Treaty signifies a major development in this respect as it places the functioning of the EU upon the principles of representative democracy, while it simultaneously emphasizes the sovereignty of the member states. The paradoxical outcome of the process of European integration is therefore that the EU has not become a state and yet forms a democracy.

The purpose of the presented essay 'The EU as a Polity in International Law' is to analyse how the EU has gradually evolved into a democratic polity of states and citizens.

By combining the disciplines of international law and political theory, the analyses provides ample arguments for the conclusion that, following the entry into force of the Lisbon Treaty, the EU may be described as a Union of democratic states based on the rule of law, which also constitutes a law-bases democracy of its own.

Responsible for the pedestrian part of program: a description of the status of the EU in international law; the view 'from the outside'.

30 Years of teaching experience in EC/EU law - research interests in international law 'proper', thus I might achieve a somewaht balanced view. 1973 - 2003 first-hand observation of the "widening and thickening" of EC/EU law and its reception by (German) domestic/constitutional law: case law on freedom of movement, Solange I, Solange II etc.

French FM Chevenement 2000: "Europe is thing for which lawyers have no name". True? Maybe for Community lawyers, but not for international lawyers. But let first the relationship between EU law and international law over time be described: a narrative of 'emancipation' (encyclopedia?). Development driven by jurisprudence of European Courts. Original situation: ECT a treaty like others )position of MS in early ligitation).

For a part of the literature emancipations has been achieved. Example A. von Bogdandy: EC/EU law = autonomous legal order of an internal (i.e. non-international law) character with federal structure. Since Lisbon this is also the case for ESDP policy and the former Pillar III (judicial cooperation). Autonomy also from domestic law calls for the hierarchical priority/superiority of EC/EU law over domestic law (achieved by jurisprudence).

"Constitutionalization" of EC/EU law: Treaties having cut the 'umbilical cord' with international law? No! Link to international law remains present/visible (maybe painfully so): processe of treaty amendment/admission of new members/ Question of withdrawel (Greenland) and dissolution. Recent disregard for treaty limits in the financial crisis.
Cf. faltering of the 'constitutional' approach to revision of Maastricht Treaty 2000 ff.

Speakers

Policy reasons for 'emancipatory'/'constitutionalist' positions: overcoming of negative phenomena of Public international Law like self-held etc. It is agreed with others who remain closer to the world of IL: Hartley in British Yearbook international law 2002 (read conslusions p. 35). Why such a denial of political and legal reality?
Of course a legal system and its lawyers can describe/characterize itself internally as it wants. But since it does not exist in a (legal) vacuum, the 'overall' validity of such a view will depend on how things are seen both by (a) MS and their courts and (b) by outside world.

ad (a): Position of German Federal Constitutional Court: core of sovereignty remains with member states. Complexity of notion, obsolete or not. Science should be a quality: legal versus political science. Outstanding feature of EC/EU: surrending of such science. Based on reciprocity! (But cf. European Court of Justice/part of literature: reciprocity banned from EC/EU. But what do we mean by 'reciprocity'?).
ad (b): EU is an international organization under international law. cf. ILC on responsibility of IOs, cf. status in other international organizations: UN (GaRes 65/276 of May 2011: comprehensive observers status) WTO.
EU regarded as an international organization with very specific features derived from the unparalleled 'density' of its internal law and integration (which non-member states better take into consideration). No 'self-contained regime' (contra ECJ).

Conclusion: International lawyers do have names for our creature, they can 'capture' it within their parameters. While EU law is a lex specialis to the law of IOs in general, there is no need to 'emancipate' the EU from IL; this attempt is an overkill.
Neither is it possible to totally detach EU law from IL, they remain connected in many respects, both in positive and negative ways
.

(1) Max Weber coins in an essay (1919) a number of concepts and definitions that still shape the political science and polemics about. A groundbreaking definition applies to that of the modern nation-state, "the human community within a certain area - and that area is an essential characteristic - (successfully) claims the monopoly of the legitimate use of physical violence." This is a fundamental link between the state and violence, which may only be used by a legitimate government in the public intrest.

(2) Zum Ewigen Frieden' is a brief satiric essay, in which Kant puts his ideas on international politics and public law and on how a stable peace could be achieved. Three important conditions were stated for that:

1. countries should have a republican constitution (not by all means democratic);
2. that peace should be founded on public law (and not on international organisation), and
3. that world-citizenship would be limited to the right to visit of other countries.

Only if all three conditions are achieved, a stable peace is possible, by which extra security can be build up. The idea went through a revival since the Eighties, when the political scientist Michael Doyle took up this idea and built a theory of democratic peace upon this. This theory however, is leaning only on the first condition for peace.