Supranational Constitutionalism Research Articles

International Protection of Migrant Workers Rights and Migration Legislation

In the context of deepening international integration in the Eurasian space, the study of the legal protection of migrant workers is fundamental issue for both ensuring socio-economic fairness and gradual transformation of the state sovereignty into the institutional basis of supranational constitutionalism, which guarantees the protection of fundamental human rights and freedoms.Aim. Improving the legal regulation of labor migration at the international, supranational and state levels through the harmonization of migration legislation in the Eurasian region.Tasks. Identification of conflicts and inaccuracies in the legal regulation of labor migration, as well as the development of recommendations for implementation of international agreements on the organized recruitment of workers between the receiving countries and countries of origin of migrants.Methods. A comparative legal analysis of international, supranational and state migration law in the process of research is supplemented by a discursive analysis of scientific literature on labor migration issues.Results. Protecting the socio-economic rights of migrant workers is the main task of host states, where migrants can become ether a criminogenic factor or a constructive social element. It is rational to organize national regulation of labor migration in integration associations of states, such as the EAEU, on the principles of national treatment for migrant workers. International agreements on the organized recruitment of workers between receiving countries and countries of origin of migrants should ensure the adaptation of migrants to the legal regime of the host country, the participation of migrants in the functioning of civil society institutions, and the monitoring of migration processes.Conclusion. Labor migration strengthens integration unions, creating strong social ties and developing civil society institutions within the boundaries of integration associations. Since state sovereignty is inextricably linked with the protection of the interests of fellow citizens, insofar as in the process of regulating labor migration, all states participating in regional integration are called upon not only to protect the rights of migrant workers, but also to provide all conditions for migrants to fulfill their obligations to civil society.

Constitutional Debate on European Union’s Shifting Pathway towards Supranationalism

The rapid evolution of the European Union (EU) has suggested a new debate on regionalism due to the institutional transformation from intergovernmentalism to supranationalism. Hitherto, the EU has undergone a shifting pathway as a supranational institution that raises a further debate on supranational constitutionalism. This paper aimed to critically examine the EU's legal capacity for external relations at the World Trade Organization (WTO) following in identifying the impact of the EU member states to become members of this world institution as well. However, new approaches were considered within the shifting paradigm, which includes supranational union as an emerging pivotal global actor in international relations. This paper showed that the emergence of EU supranationalism has challenged the traditional debate on state sovereignty rooted in the Westphalian concept, particularly against the state primacy in international law. While the EU regionalism contributed to legal conversation both in the regional and international arena, the juxtaposition of the state and the supranational 'state' has increasingly blurred their limits, becoming sui generis in regionalism and state discourses among the areas of international law and constitutional law.

THE CONSTITUTIONAL CHARACTER OF THE ECHR: OVERVIEW, CHALLENGES IN IMPLEMENTATION AND LIMITATIONS

The constitutional character of the European Convention on Human Rights (ECHR or Convention) has always been an issue for debate. Having in mind the fact that the European Court of Human Rights (ECtHR or the Court) decides on violations upon fundamental rights that are a constitutional category, there is no doubt that the ECtHR is at least some sort of Constitutional Court while the Convention acts as a supranational constitution. This article focuses on the differences in the implementation of the Convention in national legal systems depending of the monist or dualist approaches and subsequently on the limitations to application of the ECHR. Indeed, the practice shows that most problems arise from the inconsistencies between the national constitutions and the ECHR regarding some issue which is differently regulated in the national law, or the state in question does not want to abide by the provisions of the ECHR regarding the subject in question. The situation is quite complicated when the conflict arises between the Convention and the national constitution on certain core human rights where the obligation to protect them is more important than established national laws and practices. The differences which arise should not be considered as a negative remark, or a system which fails to protect human rights. It is quite a difficult task for the Court to decide on possible violations of the Conventions’ rights, but states should resume their obligations undertaken with the ratification of the Convention and the Court should be more open-minded and flexible in adjusting its case-law to the new developments on the European level.    

Accommodating Legal Pluralism and ‘Pluralizing’ the Constitution: The Example of the United Kingdom

This chapter argues that the forms that the normative encounter between domestic and supranational constitutionalism has taken in the United Kingdom (UK) are intertwined with fundamental domestic constitutional principles. Even as the UK legal order ceded ground to external normative sources as a matter of practical outcomes, the key national constitutional actors self-consciously justified this move, as a matter of formal constitutional principle, by express reference to domestic constitutional principles and sources. In the attempt to accommodate legal pluralism in the constitutional edifice of the UK, the constitutional architecture itself became more plural and textured. This constitutional reconfiguration is ongoing and has come to the forefront as the UK is currently at a moment of constitutional reckoning owing to Brexit. This maps onto a long-standing debate on the position of the UK in the international sphere, most notably with respect to the European Convention on Human Rights. The chapter argues that Brexit and similar impulses highlight the interface between domestic and external legal orders (international or supranational). This interface cannot be nullified easily, contrary to what some proponents of Brexit may have expected or wished for. Rather, these recent developments add impetus to constitutional self-reflection; instead of negating constitutional pluralism they move the inquiry to the domestic sphere forcing national constitutional actors to reflect explicitly on the forms that pluralism ought to take.

The Functions of Constitutional Identity Performed in the Context of Constitutionalization of the EU Order and Europeanization of the Legal Orders of EU Member States

Abstract This article provides an analysis of the functions performed by constitutional identity in constitutional discourses of both the EU and its Member States, in the context of emerging post-Westphalian and supranational constitutionalism. The analysis tries to demonstrate that constitutional identity may serve as one of the key normative ideologies, legitimation strategies and ordering schemes of EU constitutionalism. It reasserts through functional analysis the suitability of constitutional identity for organizing and explaining multiple constitutional orders in a non-hierarchical and inclusive way. The article is based on a socio-legal approach, deliberately avoiding the predominant legal realist and legal positivist discourses. This is due to the fact that a functional analysis presupposes admitting the existence of ideal, legal and socio-legal dimensions of constitutional concepts and institutions and the taking into account of social implications produced by their functioning. The article deliberately takes a constitutionalist stance on the EU and the EU integration. It is focused on the contribution of constitutional identity for the further constitutionalization of the EU from a socio-political and constitutionalist perspective.

Cosmopolitan law and time: Toward a theory of constitutionalism and solidarity in transition

AbstractThis article seeks to confront the contemporary condition in which cosmopolitan law – meant to resonate as something citizens across borders author and live together – instead is increasingly a source of detachment, confusion, and alienation. Taking the European Union’s twin crises of democratic legitimacy and social solidarity as its starting point, the article offers a critique of existing approaches to supranational constitutionalism that are insufficiently responsive to this disenchantment. The article’s purpose, in turn, is to present perspectives from philosophy and legal theory that might promisingly recast, in this new cosmopolitan frame, our thinking about law as a mode of social integration. Specifically, the article’s central claim is that time – as a seldom-examined, yet essential dimension of law – is closely linked to law’s cosmopolitan potential and, concurrently, to the motivational resources for cosmopolitan solidarity. It is through a sensitivity to time – our awareness of the past passing into the present in anticipation of a future – that citizens can meaningfully hold together cosmopolitan law’s dual, ostensibly divergent hopes: shared commitment and self-decentring plurality. Drawing on Seyla Benhabib’s ‘democratic iterations’ and its roots in the work of Jacques Derrida and Robert Cover, the article elaborates the following two concepts: ‘cosmopolitan promise-making’, a diachronic form of cosmopolitan political agency; and ‘cosmopolitan legal narrative’, a set of plural, evolving constitutional interpretations open to mutual engagement over time. These concepts, in temporalizing our understanding of political identity and constitutional law, together serve to underwrite a cosmopolitan legal order without also thinning solidarity’s social and democratic foundations. The article concludes with a critique of the contemporary role of European courts and a concrete vision for the cosmopolitan development of EU jurisprudence. Reinterpreting Article 4(2) TEU as the right to constitutional narrative, the article advances new modalities and normative aspirations for constitutional interpretation beyond the nation-state.

La dimensión constitucional del poder presupuestario de la Unión Europea

<p>En el contexto del debate sobre las transformaciones que está experimentando el constitucionalismo contemporáneo, un lugar prominente viene a ser ocupado por la extensión de marcos constitucionales a realidades sociopolíticas que van más allá del Estado. El presente artículo pretende indagar en la morfología de estas nuevas realidades objeto del constitucionalismo, utilizando el específico caso de la Unión Europea y su poder presupuestario como evidencia empírica sobre la que explorar los contornos conceptuales del constitucionalismo supranacional. Pretende, básicamente, responder a dos cuestiones: ¿qué es la supranacionalidad y qué relación tiene este concepto con el constitucionalismo?, y ¿en qué medida el poder presupuestario europeo configura un poder supranacional inscrito en un marco constitucional?</p> <p>El artículo se estructura en torno a tres apartados. En primer lugar, se realiza una aproximación teórica al constitucionalismo supranacional. En segundo lugar, se describe el sistema presupuestario europeo, que pasará a ser analizado a través del concepto de supranacionalidad. Finalmente, la última sección resume las proposiciones formales y empíricas más relevantes</p>

The Politics of Global Legal Pluralism

Pluralism has made its way into European law literature already a long time ago. Some of its main tenets have proved to be apt for describing several forms of supranational constitutionalism (EU, ECHR, WTO). In the first two sections, this article reconstructs the two main pluralist interpretations of supranational constitutionalism: on the one side, McCormick’s neo-institutional take on the nature of the EU and, on the other side, Mattias Kumm’s constitutional pluralism. The third section illustrates why while they both present sounding descriptive elements, they should be both rejected because they are not normatively appealing. The fourth section elaborates the idea that a certain understanding of pluralism makes supranational constitutionalism politically shallow. Overall, instead of opening up new possibilities for constitutional transformation, pluralism serves the function of entrenching certain interests.

Helping Loose Ends Meet? The Judicial Acknowledgement of Soft Law as a Tool of Multi-Level Governance

In the established multi-level governance system of the European Union, the Court of Justice was instrumental in framing a supranational constitution. Over recent years, a vast variety of soft law and soft methods of governance were put in place, ‘loosely’ binding together the different layers of EU governance. While the EU Courts sometimes engage with such instruments and methods, they fail to acknowledge important consequences that soft law can have on the rights and obligations of individuals. This approach can have a negative impact on the justiciability of soft law, creating a way for a vast body of EU instruments to escape judicial control. Furthermore, in the absence of judicial recognition, soft law fails to accomplish some of its key objectives, such as fostering legal certainty, transparency, and the consistent application of rules in the EU multi-level governance system.

Book Review of 'Constitutionalism and the Enlargement of Europe' by Wojciech Sadurski, Oxford University Press 2012

It is one of the merits of this book that it focusses on a timely and important theme that has nonetheless been under-researched and under-theorised: the interplay between supranational constitutionalism and Eastern Enlargement. Sadurski’s treatment of the latter’s influence on the former is especially welcome and stands in contrast with most of the Europeanization literature, which analyses mostly “top-down” causality; viz. the influence and impact of the EU on post-Communist Central and Eastern Europe (CEE); recognising too little “bottom-up” causality which runs the other way. In the same stroke Sadurski widens the sweep of the investigation beyond the EU to encompass the CoE, a valuable contribution inasmuch as the CoE has been “rarely acknowledged by legal and political scholarship” (p. xxi), even though it has been perhaps the more powerful engine of supranational constitutionalism.

Sovereignty and Liberty in the Internet Era

The global revolution in communications technologies and services is breaking apart the historic relationship between the media and the state. That relationship, born in the early print era, was first framed by the territorial authority of sovereigns and later found new legitimacy in the rise of popular sovereignty, thus becoming a definitive feature of the modern liberal democratic state. For centuries, states have been adapting to new communications technologies and seeking to re-impose their territorial boundaries on the flow of information and ideas, but this has required ever increasing technological inventiveness and financial investment. In the internet era, the state’s capacities to control its public information environment are being tested to exhaustion. Supranational constitutionalism, inspired by European achievements, is widely seen as the answer to the waning of state capacity and authority. In the sphere of public expression, constitutionalised treaty-based rights and obligations are now thought to provide a bedrock of common principles for governing speech concerning public affairs, public figures and public institutions. In this transition to supranational authority, the sovereignty of the state over its national public information environment is necessarily shared, pooled or even dispersed. This paper argues however that constitutionalised supranational law, even when leavened with legal and political pluralism, is incapable of addressing the key problems of public expression for democratic as well as non-democratic states. Supranational judicial processes, in particular, have produced legal doctrines and principles for public expression that are both too thin and too thick to replace the beleaguered but better suited political and judicial forums of the state. The failure of supranational constitutionalism to provide a workable common understanding of freedom of speech underscores the deep uncertainties of present times. State and supranational regimes are muddling along together in the recognition that traditional notions of sovereignty in the state are fading but without convincing conceptual or practical alternatives. Both national and supranational forms of authority are also being cross-cut and undermined by the rise of global networks, which are not just flooding the world with digitised information and ideas, but are also fostering new forms of community and association. The latter however are created out of participant choice and are largely formed within and by globalised commercial services. Their capacity for inclusive collective agency is limited and their bias towards instrumental, market based understandings of free speech is structural. This paper does not advocate a particular liberal democratic model for the media state relationship generally or specific solutions to the key problems of harm and offence in public speech. Instead, it shows the primary importance of community, locality and collective agency in finding solutions to the challenges of public expression. While we are collectively and inevitably assaulting the weakened territorial bounds of the media state relationship, we have no replacement for its capacity to resolve problems of harm and offence: hence the continuing vitality of bonded territorial and popular sovereignty in delivering freedom of speech in the internet era.

The Crucifix Rage: Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty

ECtHR in Lautsi v. Italy: Mandatory display of crucifix in public schools violates Convention – Secularism and semi-secularism in the Italian Constitution – Italian High Administrative Court: Display of crucifix affirms principle of secularism – Exclusionary effect of display – ECtHR, religious freedom and margin of appreciation: dark side of consensus – ECtHR finally veritably counter-majoritarian.

PUNISHMENT, INVALIDATION, AND NONVALIDATION: What H. L. A. Hart Did Not Explain

Elaborating first upon H. L. A. Hart's distinction between imposing duties and imposing disabilities, this article explores the two senses mentioned (but not fully explained) by Hart in which power-holders may be legally disabled. Legal invalidation (nullification) of norms that have been generated by vulnerable power-holders is seen to reduce diversity or pluralism in every normative sphere, from the supranational to the intrafamilial. By contrast, mere legal nonvalidation (noncognizance) of such norms tends to preserve the autonomy of the power-holders that created the norms, thus enhancing legal pluralism. Punishment for creating forbidden norms amounts in principle to an in-between sort of control, less restrictive than completely invalidating them but more restrictive than just not validating them, that is, just ignoring them. Illustrative examples include the European Court of Justice's early use of invalidation to convert an international treaty into a supranational constitution, and the subtle effects of legal nonvalidation of same-sex marriage.

Getting Socialized to Build Bridges: Constructivism and Rationalism, Europe and the Nation-State

Building on the empirical findings of the preceding articles, we advance three arguments. First, while socialization research has typically been construed as constructivism's home turf, this volume's emphasis on mechanisms and scope conditions reveals that rational choice has much to contribute here as well. We develop this claim by undertaking a “double interpretation” of each essay, which allows us to advance more fine-grained arguments connecting the two social theories. Second, while there are good conceptual reasons for expecting a predominance of international socialization in Europe, the empirical cases instead suggest that its effects are often weak and secondary to dynamics at the national level. We make sense of this puzzle by reasoning more explicitly in longitudinal terms, by drawing on work on European identity, and by noting that students of European socialization—as well as integration—have much to gain by “bringing the domestic back in.” Finally, while our collaborators have demonstrated the empirical and theoretical benefits of combining a social ontology with a positivist epistemology, this comes at a cost, with normative perspectives neglected. This matters—and all the more so in a Europe marked by supranational constitution- and polity building. Socialization dynamics may well take us beyond the nation-state, but their legitimacy and governance implications bring us back—forcefully—to it.We are grateful to the project participants and contributors to this volume for valuable discussions on the themes addressed here. For detailed comments on earlier versions of this essay, we thank two anonymous reviewers, the IO editors, Peter Katzenstein, and Ron Mitchell.

The Judicial Construction of Europe

1. The European Court and Integration 2. Constructing a Supranational Constitution 3. The Free Movement of Goods 4. Sex Equality 5. Environmental Protection 6. Conclusion

Women's Rights, the European Court, and Supranational Constitutionalism

This analysis examines supranational constitutionalism in the European Union (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates—both individual activists and groups—have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism.

Governing with judges: constitutional politics in Europe

1. Governing with Judges 2. Constitutional Adjudication and Parliamentary Democracy 3. Legislating 4. Protecting Rights 5. The Politics of Judging 6. Constructing a Supranational Constitution 7. Theory of Constitutional Politics

Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community

We present a theory of European legal integration that relies on three causal factors: transnational exchange, triadic dispute resolution, and the production of legal norms. After stating the theory in abstract terms, we explain the construction of the legal system and test the relationship among our three variables over the life of the European Community. We then examine the effect of the EC legal system on policy outcomes at both the national and supranational levels in two policy domains: the free movement of goods and gender equality. Our theory outperforms its leading rival, intergovernmentalism. The evidence shows that European integration has generally been driven by transnational activity and the efforts of EC institutions to reduce transaction costs, behavior which governments react to but do not control.

Democracy and environment

Focuses on recent environmental decline and market failure to account adequately for environmental values. Looks beyond economics and market failure, and highlights the role of politics and government failure. To remedy poor political performance in respect of the environment, advances the primacy of constitutional reform, entailing the prescription of minimum environmental safeguards. Recommends greater use of referenda as well as the electoral system of proportional representation. In respect of the international and global dimensions of environmental problems, stresses the need for a supranational constitution or charter to restrain single sovereign nations from blocking the united welfare of countries.

The Lawless Case

On November 4, 1950, at Rome, thirteen member nations of the Council of Europe signed a Convention for the Protection of Human Rights and Fundamental Freedoms. The purpose of the Convention was to give practical effect to some of the ideals embodied in the Universal Declaration of Human Rights proclaimed by the United Nations General Assembly on December 10, 1948. In contrast to the Universal Declaration, which is a statement of long-term ideals having no binding force in law, the European Convention guarantees to everyone within the jurisdiction of the signatory states certain rights and freedoms defined in Section I of the Convention. Chief among these are the right to life; the right not to be subjected to torture or inhuman punishment; the right not to be held in slavery or servitude; the right not to be deprived of personal liberty save in certain specified circumstances; freedom of religion, thought and conscience; freedom of assembly and association; the right to marry, and the right to respect for private and family life. By a Protocol signed on March 20, 1953, three further rights were added, namely the right to property; the right to educate one's children in conformity with one's conscience, and the right to free elections. As one of the architects of the Convention, Sean MacBride S.C., former Irish Minister for External Affairs and subsequently counsel for the applicant in the Lawless case, has said:“In effect, the Convention of Human Rights is a supranational constitution which binds the states accepting it to secure to all human beings within their jurisdiction the rights defined in the Convention.”