From national to international forms of democracy

16.10.08

International Constitutional Law and Democracy

• Old and new democracy :

• - the active direct participation, - Athens,• - the republican democracy – representatives, - Rome, • - the Middle ages – the power of the church, • - liberal representative democracy, • - fundamental basic individual rights, • - freedom, • - sovereign states, • - with monopoly of coercive power, • - as an aggregate of social and individual interests,• - democracy, law and reason,• - the constitutional democratic state, • - the political equality of all mature individuals,• - accountability,

• Vital elements of democracy : • - individual basic freedom rights, • - the right to free speech, to vote, to organize etc., • - what scope/level of protection of liberal rights, • - the political equality of all,

• - the form of aggregation of interests, • - the form and the power of the state, • - democratic procedures – free elections, • - sovereignty – one territory, • - division of powers – control, • - legislative, - executive, - judicial, • - parliamentarism, • - accountability, • - rule-of-law, - constitutionalism,

• Each state has its own set of institutions and norms :

• - contitutions, • - rights, - the right to vote etc., • - free elections, • - division of powers, • - democratic parliaments - parliamentarism, • - legislative competences, • - accountability, • - executive branch , • - judicial branch - courts, judicial review etc.

• Democracy has so far primarily been institutionalized in nation-states :

• - specific territories, its peoples, authorities, • - de-limitation, • - common frames of references of history, social-

economic conditions, language, culture etc., as a backdrop to democratic discourses and processes,

• - the liberal democratic model with the legislative, executive and judicial institutions,

• - the possibility of forms of accountability,

• Activities are becoming increasingly inter- and transnational – or cross-boundary :

• - international trade, • - financial markets, • - economic interdependence, • - as a result: - international pollution and

environmental and climate change, • - international trade means that we may place our

pollution in other parts of the world, • - international migration, • - international cultural exchanges,

• The distinction between internal and external problems is becoming increasingly blurred and dissolving - factual globalization – and international problemsolving may be needed:

• - Environmental and climate problems. (factual) • - International trade and international financial

markets. (constructed) • - International human rights standards.

(normative) • - International migration. (factual, constr.,

normative)

• ”The meaning and nature of power, authority and accountability have to be re-examined.”

• ”The concept of legitimate political power or authority has to be separated from its exclusive traditional association with states.”

• Multi-level governance : • - the possibilities of democracy on a regional

level and on an international level, which are more heterarchical levels than the nation-state,

• • - the possibilities of combinations of democracy

on national, regional and international institutional levels,

• - what elements are necessary for a democracy to function ?

International law – over time :

• The Westphalian model, 1648 : • - nation-state sovereignty vs. international law: -

cooperation among states on a minmum level,

• The UN model 1945 : • - an increased ambition of cooperation : , • - international human rights : 1948 UN Declaration,

• The Cosmopolitan model : • The realization that many political and economic

problems cross the boundaries of the nation-states, • Trade, environmental and climate problems, human

rights are in fact international,

• The Westphalian model, 1648 : • - nation-state sovereignty vs. International law, • - mutual respect and peaceful co-existence, • - international law: - cooperation among states, -

peace by non-intervention and respect for sovereignty,

• - on a minmum level: - boundaries, trade tariffs,

• The UN model 1945 : • - an increased ambition of cooperation : • - more economic, social and cultural cooperation

in ordfer to achieve peace, • - international human rights : 1948 UN

Declaration, • - citizens are also subjects of international law, • - more comprehensive organizations, • - a permanent organization: - General Assembly

and Security Council, with powers to ”determine the existence of any threat to peace”,

• The Cosmopolitan model :

• The realization that many political and economic problems cross the boundaries of the nation-states, and also need to be solved as cross-boundary,

• - an increased ambition of international cooperation, • - increased trade, and trade treaties, • - financial markets are inter- and transnational, • - cross-boundary environmental and climate problems,

• - cultural exchanges and communication, • - international migration, • - international standards for human rights : • The individual has a place in international law, • A significant increase in international treaties,

organizations, courts, corporations etc.

• International law

• – the law between nation-states, (UN)• - in substance, - and in legal validity.

• Supranational law

• - law by international organizations which has been delegated specific parts of the constitutional power of the nation-states, (EU)

• - the legislation has direct effect on citizens,

• Transnational law • - law or legal practice which has been developped among

non-state actors, - such as experts, NGOs, standardization committes, (ISO)

• - lex mercatoria : private international law

• EU – constitutionalization of international law?

• - comprehensive powers,

• - enumerated powers,

• - vertical integration,

• - functioning courts,

• - judicial review,

• - judicial, but not legislative comptence-competence,

• International law

• – the law between nation-states, (UN) • - international treaties between states, • - customary law and basic principles (jus cogens), • Traditionally the law is in substance – between states, but

increasingly it deals with matters also internally to the states :

• - trade law, evironmental and climate law, • - international human rights• The law is legally valid directly only between the states, • To be applied nationally – to the citizens directly – it has to

be made national law, • Often without courts and inefficient sanctions, • Conflicts among states: International Court of Justice,

• Supranational law : • - law by international organizations which has been

delegated specific parts of the constitutional power of the member nation-states, (EU)

• - the legislation concerns and has direct effect on citizens,

• The EU as case : • - legal substance: - the free movement of goods,

services, persons and capital, - competition law, -environm. law, etc

• - Executive and administrative powers : the Commission. • - national implementation, • - legal control and review : European Court of Justice, -

working efficiently as a court, • - citizens are directly affected, • - human rights are implied,

• Transnational law : • - guidelines, soft-law, legal practice, • - international standardization, • - expert groups,• - second-level organs of governing bodies

(cooperative committees), • - INGOs • - transnational corporations, • - Lex Mercatoria, - global private law regimes,

• New treaties and international organizations, post 1945 – legal globalization :

• the UN – 1945, - increasing ambitions for international political and legal cooperation, - the UN Charter, the Security Council, art.39,

• Sub-UN: - FAO, WHO, UNICEF, UNDP, UNCTAD, • European Convention of Human Rights, 1950, - and its

Court, the Council of Europe, • The Universal Declaration and the UN Conventions on

Human Rights,

New treaties and organizations, economic :

• GATT, 1947, (the Washington Consensus) • IMF, • the World Bank, •

• WTO/GATT • the Dispute Settlement Understanding (DSU),

1992, • WTO : - TBT, SPS, TRIPS, 1992,

New treaties and organizations, trade, evironment :

• The European Community, 1958, - the Rome treaty, - creating a common market, and closer cooperation among the peoples of Europe, - new and more ambitious institutions: The Council, the Commission, the Court, - 1986 : qualified majority voting, Single European Act, - 1992 – Maastricht (the Euro), Schengen, Amsterdam, Nice……

• Other regional (similar) treaties,

• The environment : Stockholm, 1971, and Rio Declarations, 1992,

• The climate : - the UN Framework Convention on Climate Change, - the Kyoto protocol,

• The International Criminal Court, ICC, 2004,

Types of international organizations : • International organizations – based on international law, • - with sovereign nation-states as members,

• Regional organizations - nation states as members,• Standardization organizations – industrial organizations

as members, • Other types of expertise based organizations, • Professional organizations – individual members,

• International NGOS – individual members and groups, • Transnational corporations

• The factual independence of secretariats of international organizations,

• The new legal regimes, combinations of :

• Include national, inter-, supra- and transnational law. • Comprehensive transferals of supranational legal powers

to the EU, - legislation by the Council and the EU-parliament,

• An increasing number of functioning and efficient courts• International treaties on environmental law, • WTO-law – regulating international markets, with a court-

like dispute resolution system, and effective economic sanctions,

• ECHR, - functioning court with binding, but not sanctionable decisions,

• UN human rights committees, • International regulations on asylum and international

migration, • Climate change regimes with strict regulations. • International Criminal Court – individual responsibility,

The UN

• From ”the great powers” to all member states, • Goals : • - peacekeeping, security, - deal with international

disputes, - economic/social cooperation, - human rights,

• General Assembly, - all members, • - political forum for discussions, • Security Council, - 15 members, • - decisionmaking power, • - 5 permanent members with veto power, • Secretariat and the General Secretary• International Court of Justice,

• Peace and security : • - the lack of an ”army” at the disposal of the UN, • - UN Charter ch.VII, art.39 • - ”The Security Council shall determine the existence of

any threat to the peace, breach of peace or act of aggression and shall recommendations or decide what measures to be taken in accordance with art.41 and 42.”

• Art. 41 – measures not involving use of armed force, • Art. 42 – measures involving armed forces, if necessary, • Example : - The Iraq – Kuwait conflict 1990/91, • - The Iraq war, 2003 - , • Resolutions may the SC decide ”when there are acts of

aggression” and where ”armed forces” may be used, • Failures: - Middle East, Kashmir, Darfur, Somalia etc.

• UN SC Resolution 1441 (2002) on Iraq : • - ”…that Iraq has been and remains in material

breach of its obligations under relevant resolution (687) (1991), in particular Iraq´s failure to cooperate with UN inspectors and the IAEA….”

• - ”….final opportunity to comply….”

• Human Rights : • - 1948 – The Universal Declaration of International

Human Rights, • - 1966 – The two covenants of Economic, Social and

Cultural Rights, and Civil and Political Rights, • - Later : Covenants on the elimination of discrimination

against women, - on the protection of the rights of children, - on the elimination of discrimination,

• Monitoring : • - reports submitted by the States, • - Inter-state complaints, • - monitoring committees,

• Human rights : • - national sovereignty vs. human rights, • - individual/integrity, - political/civil, - social and

economic, - cultural rights ? • - law – politics – morals/ethics ? • Consensus : • - respect for human dignity,

• - rights of groups and peoples, • - no racial discrimination, • - states must not engage in grave h.r. violations, • - the international community may be justified in

intervening by peaceful means,

• Economic and social cooperation : • ECOSOC – Economic and Social Council, • - 1974 – The New international economic order,• - several UN sub-organizations : • - UNICEF • - FAO, WHO, • - UNCTAD, • - UNDP, • - Emergency and Relief work,

• The work to abolish colonialism, • Example : South Rhodesia/Zimbabwe,

• Disarmament,

• The further development of international law,

• The Kantian vs. the Grotian model of the UN,

The EU • - regional, • - supranational – transferred and comprehensive powers, • - free movement of goods, services, persons, capital, • - competition law, • - environmental law, • - police, asylum cooperation, • Direct effect for citizens, • Nationstate implementation,• The Commission • The Council - the European Council, • The Parliament,• The Court, • Multi-level governance,

• EU – constitutionalization of international law?

• - comprehensive powers,

• - enumerated powers,

• - vertical integration,

• - functioning courts,

• - judicial review,

• - judicial, but not legislative comptence-competence,

WTO

• GATT – 1947 ,• - ”general elimination of quantitative restrictions”,

• WTO 1992 • Dispute settlement understanding• - Panel and Appellate Body, • From ”diplomatic to judicial problemsolving”, • Cases : - meat hormones (97), GMO (2006)• SPS, TBT,• TRIPS,

• Ownership to and regulation of the Internet : • - US National Telecommunications and Administration recognized

(NTIA),1998, Internet Corporation of Assigned Names and Numbers, ICANN, as a representative and self-regulatory organization, with delegated authority to issue domain-names for the net, (.com, .org, .dk), - www.icann.org,

• An adress-, name- and landcode organization, • ICANN has membership-areas with different public and private

organizations, and individuals as members, - who are presumed to contribute actively to the maintainance of the net,

• Root servers – the technical infrastructure, • ICANN – as functioning network-organization,• With a government-appointed Advisory Committee, • • 2005 : World Summit of the Information Society :• - USA vs. UN as responsible for the regulation of the internet, • - EU active in changing the regulation of the net, • - criticism of ICANN´s lack of legal sanctions,

United Nations Framework on Climate Change and Control, Kyoto Protocol :

• - goal : to achieve stabilization or reduction of greenhouse gas concentration in the atmosphere,

• - present and future generations, • - precaution, - sustainable development, • - developed and developing countries, • - market-based instruments,

ICC – International Criminal Court

• - individual responsibility for state leaders, • - autonomus international court, • - ”crimes against humanity, mass murders etc.” • Ruwanda and Yugoslavia tribunals,

New aspects of international law :

• The increasing internationalization and globalization of law,

• - treaties and organizations,

• Functioning international courts, • - WTO/DSB, - ICJ, - ICC, - ECJ, - ECHR,

• Multi-level governance, • - several levels of government and governing working

together, but not always coordinated,

• The fragmentation of law, • - not one constitution, but several parallel treaties,

• - 125 tribunals or courts, • - more effective and competing courts,

• Regime collisions : • - WTO / WHO, • - UN / WTO, • - ICJ / ICTY, • - EU / ECHR,

• Transnational communities, lex Mercatoria, • - professional, technical, expertise bodies, • - developing international standards, • - examples : ISO, Helsinki declaration,

Patent Protection for medicines / WTO :

• TRIPS – Trade-related intellectual property rights, • - national treatment, most-favoured-nation treatment, • Transnational medical corporations, • Patents on medicines, to pay for investment, • Problem : - economic differences rich/poor countries, • - HIV/Aids situation, • - South-Africa, Brazil etc. • Members may grant compulsory licences, - particularlly in

cases of national emergency – understood as public health crisis,

• Exceptions were made : - Brazilian companies were allowed to produce copy-medicine,