multi-level legal orders - changing the function of constitutions and the context of the rights of...
Post on 24-Dec-2015
218 Views
Preview:
DESCRIPTION
TRANSCRIPT
1
Draft Paper - for the IACL Conference June 2014 - Not for citation
Workshop 17: Federalism, community identity and distributive justice
Inger-Johanne Sand , University of Oslo
Multi-level legal orders: Changing the function of constitutions and the context of the
rights of citizens
Introduction
Nation-state citizenship has over the last two hundred years emerged as the legally most
authoritative, general and inclusive type of status and membership for individuals in legally
and politically functioning regimes. Citizenship and fundamental freedom rights are the basis
of democratic nation-states, and have been a vital part their constitutions. Without citizenship
and fundamental freedom rights, there could be no democratic states. Fundamental freedom
rights have universal formulations and are given to all persons. Citizenship in specific states
may be more selective dependent on certain criteria of attachment. The criteria may be linked
to ancestry (patri- or matrimonial), place of birth or long time residency. The main exclusive
rights for state citizenship are the right to vote at national elections and the right-to-stay in the
territory. Non-citizen residents may have a weaker protection of the right-to-stay. Immigrants
have the right to seek asylum, to stay or to work. If given asylum, the right to stay or to reside,
immigrants will generally be included by the legal system, albeit with a weaker protection of
the right to stay. The institution of citizenship presumes the general responsibility of the state
to take care of its citizens. This includes the responsibility to legislate and codify for
individual rights, for legal protection and for the legal situation of the citizens in general. The
overwhelming predominance of the actual legislation concerning individuals has been done
by nation-states authorities in domestic law.
Citizens and citizenship are the necessary links between civil society and the state. The
juxtaposition between society and state is part of the paradox of democratic states: the mutual
interdependence between the decentralized power of autonomous citizens on the one hand,
and the centralization of power, given by the citizens, to state authorities on the other hand.
Legislation on individual rights by state authorities will always reflect the historical, social,
political and legal contexts of that state. Law has however additionally always been
2
communicated across boundaries and cultures, in terms of norms, values and institutions.
With written legal sources the transnational communication of law is radically strengthened.
With the enlightenment individual freedom rights, citizenship and state sovereignty are
introduced in new legal forms. With emerging democracies citizenship is as necessary as the
state. It is however not until the Universal Declaration of Human Rights in 1948 and the
following UN conventions that we get the first more operative transnational text concerning
citizens and their rights. From this point on international and constitutional law are
interwoven much more intensively than previously. Individual and citizens’ rights are not
only seen as the responsibility of states, but also of international organisations and society. 1
From one constitution to many legislators on individual rights
The close to monopolist position of the institution of citizenship as the authoritative form of
participatory membership in democratic states and the ensuing access to rights, has been a
vital part of the political order of such states. For individuals citizenship has guaranteed
fundamental freedom rights, legal protection and democratic participation in more exclusive
ways than for non-citizens. Citizenship is even closely linked to our cultural identity. In
democratic nation-states there is much legitimacy vested in the institution of citizenship and
its inclusion of a significant number of rights. Reflecting on the dominant position of nation-
states in the political order, they have been the most authoritative decision-makers and
guarantists for individual rights in general, even for non-citizens. Guarantees for the most
fundamental freedom rights and general rules for the status of citizenship have become vital
parts of national constitutions, as the most basic definitions of popular sovereignty.
With the UN initiated Universal Declaration of Human Rights of 1948 the first significant,
comprehensive and authoritative international declaration of human rights emerged, and with
that the symbolic representation of all humans as global citizens.2 The declaration was not
made operative and sanctionable, but was and still is a vital expression of transnational law or
law beyond state boundaries.3 It was followed up by the preparation of more binding legal
documents, first by the two UN Conventions on Civil and Political rights, and on Economic,
1 Rafael Domingo, The New Global Law, Cambridge, 2010, ch.6.1. and 6.3 “Human Rights at the heart of global
law”; Jan Klabbers, International Law, Cambridge, 2013, ch.6 “The individual in international law”. 2 Philip Alston and Ryan Goodman, International Human Rights, Oxford, 2013, ch.2 E “Birth of the Regime: the
UN Charter and UDHR”; Michael Doyle, “The UN Charter – A Global Constitution” in Ruling the World, eds. Dunoff and Trachtmann, Cambridge, 2009 3 Seyla Benhabib, Another Cosmopolitanism, in The Berkeley Tanner Lectures, 2006.
3
Social and Cultural rights (1966), and later by several other conventions, but still without a
common court system. Regional conventions on human rights have emerged, in Europe with
the European Convention of Human Rights (ECHR) (1950) and its Court (ECtHR) open for
appeals from individuals after the use of national remedies.4 Today the ECtHR handles a very
large number of cases per year, and has a significant backlog. The decisions by the court are
generally implemented by the parties involved and accepted as legal source material for all
member states. The domestic implementation of human rights in European countries is today
significantly affected by the European Convention as well as by the practice of the ECtHR,
and with considerable effects for the whole domestic legal regime.
EU law with the free movement of persons and services has resulted in vital and significant
rights for all citizens of the member states to move freely around and to seek work and
education.5 An increasing number of harmonization directives and regulations has been
produced to further define the rights of persons to move and to work. Under the principles of
equality and non-discrimination these rights have been interpreted to include a wide range of
welfare, labour and educational rights. These rights have been further strengthened by the
introduction of EU citizenship in the 1992 Maastricht treaty.6 EU citizenship is different from
national citizenship, but includes the right to vote at municipal elections in states other than
your home state when having domicile there. In a recent CJEU decision concerning the right
to education and training EU citizenship is described in the following way: “Union citizenship
is destined to be the fundamental status of nationals of Member States, enabling……. …the
same treatment in law irrespective of their nationality…” (joined cases C-523/11 and C-
585/11). Still, EU citizenship builds on the fact that there first is a national citizenship in the
member states, and which is far more comprehensive in its legal scope than the EU
equivalent. The primary effect of EU law for individuals in EU states is probably the rights to
free movement to seek work and to stay in all member states, and the fact that these rights
have been significantly extended with additional welfare, labour, educational and other rights.
International human rights have become increasingly important due to increased immigration,
including crisis situations with internal and external refugees. The rights to asylum and to
humanitarian rights and aid concern an increasing number of persons, albeit in quite different
situations, cfr. Geneva Conventions I – IV (1950), Convention relating to the Status of
4 Jonas Christoffersen, Mikael Rask Madsen eds, The European Court of Human Rights between Law and
Politics, Oxford, 2011 5 Paul Craig, Lisbon Treaty: Law, Politics and Treaty Reform, Oxford, 2010
6 Paul Craig and Grainna de Burca, EU Law: Texts, Cases and Materials, Oxford, 2008; Paul Craig, ibid., 2010
4
Refugees (1954). International criminal law with rules and sanctions against crimes against
humanity and with a strengthening of the personal responsibility of political leaders can be
seen as an additional and internationally based strengthening of human rights for all persons,
Rome Statute on the International Criminal Court (2002). 7
One of the consequences of the increasingly global economy is that work life conditions,
health and social welfare rights for workers in countries we trade substantially with, may
arguably be of increasing relevance, cfr. the ILO Convention on Freedom of Association and
Protection of the Right to Organize (1950). Through the intensive economic interdependence
and trade between states, and the many transnational corporations, the conditions of workers
and their social and economic rights, particularly in transnational corporations, has become
increasingly relevant across state boundaries and must to some extent be seen as a common
responsibility. Cheap goods from low-cost countries may be made possible due to low wages
and harsh working conditions. Environmental hazards creating huge problems for the
populations of poor countries may even be the result of aggressive capitalism primarily the
responsibility of more affluent states. Economic globalization and transnational corporations
have produced global political and legal interest concerning fields such as work-life
conditions, health and human rights.
Whereas up till now the state has been the practically sole constitutional guarantist and
responsible legislator, as well as implementer and executor of public law, concerning the legal
position of citizens and other persons living on the territory, today international treaties,
conventions and organisations play a vital role in the decision-making of the legal rights of
individuals.8 International organisations obviously do this in collaboration with state
authorities, but the result in terms of international treaties and conventions, and the use of
international courts and dispute settlement bodies, is clearly different from when states only
act alone. Different themes and rights are emphasized, and much more comprehensive
compromises have to be struck. Some values may be strengthened over others. New political
and legal orders are created partly with the more active and comprehensively legislating
international organisations, and partly with nation-states engaging in and relying on more
intensively and committed international cooperation.9 Nation-states do not only act from
isolated forms of self-interest, but also based on the values of international cooperation. The
7 Alston and Goodman, ibid., ch.15 “Massive Human Rights Tragedies”; Jan Klabbers, ibid., ch.12 “International
Criminal Law”. 8 Jan Klabbers, ibid., ch.6; Rafael Domingo, ibid.
9 Anne-Marie Slaughter, A New World Order, Princeton, 2003; Dunoff and Trachtmann, Ruling the World, ibid.
5
political orders of national sovereignty are changed to include more committed forms of
international collaboration and to be more respectful of global concerns and values.
Transnational actors and fields become more vital parts of global interaction, creating new
spaces and ‘frontier zones’ irrespective of state authorities.10
The universal status of
international human rights is part of this. The acceptance of such rights as universal implies
additionally the acceptance of some kind of extended responsibility of political authorities for
human beings even across state and geographical boundaries. The authorities of one state do
according to the principle of universal human rights have a more general responsibility for the
existence of such rights on the international level in addition to their internal responsibility.
Another feature of the extended responsibility is the consequences of the extremely
comprehensive international trade and global economic interdependence.11
Importing
countries may arguably be said to have some responsibility for the conditions of workers and
their human rights situation in low-cost exporting countries. There is mutual economic benefit
of such exchange which arguably should lead to some form of mutual responsibility for the
conditions of creating such benefits. Transnational corporations play a vital role in the
expansion of international trade. Foreign investments, global technologies, cheap labour and
production facilities and global markets are combined. It is however controversial to decide
where the home state of such corporations is. The responsibility for social and labour rights
and for paying taxes is dispersed. Transnational corporations are however an additional
argument for an increased transnational responsibility for the states involved and profiting of
the arrangements.12
The increasingly global factual situation has led to a large number of treaties, conventions and
organisations. From the UN Declaration on Universal Human Rights and onwards the legal
rights and position of individual persons are as much focussed in international treaties as the
legal positions of states and corporations.13
Nation-state authorities are as much part of
regional and international interaction and cooperation among states and international
organisations with common purposes, as they are internally oriented sovereign state actors.
State constitutions are continuously supplemented in a certain sense by international treaties
and conventions in terms of legal competences, procedures as well as substantive legal
obligations. Multi-level structures with inter-, trans- and national authorities emerge with
10
Saskia Sassen, Territories, Authorities, Rights, Princeton, 2006, ch.4 and 8. 11
Boaventura de Sousa Santos and Cesar Rodriguez-Garavito, eds, Law and Globalization from below: Towards a Cosmopolitan Legality, Cambridge, 2005 12
Sassen, ibid., ch.5 13
Benhabib, ibid., 2006; Domingo, 2010, ibid.; Klabbers, ibid.,2013.
6
overlapping competences and procedures. Political and legal orders are changing. Even state
constitutions need to be seen as part of a wider politico-legal and institutional context.
Cosmopolitan legal norms – international human rights
The Universal Declaration of Human Rights of 1948 is seen by many as the starting point of a
more consciously accepted global civil society where all individuals are seen as members,
‘born free and equal’, and as ‘having inherent dignity and equal and inalienable rights’,
irrespective of their social or legal status in their home states.14
From then on individual
persons are increasingly seen as subjects of international law, at least on some dimensions,
not only of domestic law, even if the1948 Declaration was not seen as directly sanctionable
international law. The Geneva Conventions concerning the rights of the wounded and sick in
armed forces in military conflicts, the rights of prisoners of war and the protection of civilian
persons in time of war, followed in 1949-50. The UN convention concerning the status of
refugees with the rights to seek asylum was in force in 1954. These conventions concerned
individual rights pertaining to situations of international conflict, an area which on several
dimensions would not be covered by or could be secured by domestic law.
The European Convention of Human Rights of 1950 introduced many of the same
fundamental freedom rights, but with the intention to take steps towards domestic and
regional enforcement and adjudication. A European Court of Human Rights was established
as part of the Convention, but it took more time than anticipated to establish the Court, and it
was not until the mid-1970-ies and -80-ies that it starts functioning as a court for European
citizens to be applied after domestic remedies have been exhausted.15
From the 1990-ies the
case-load increased rapidly, and with that the general interest in the decisions of the Court as
legal sources and precedence. From the mid 1990-ies the ECtHR has been overburdened by
an enormous backlog of cases, but which the Court is now dealing with. The Court has
undoubtedly contributed to a significant recognition and an improvement in the application of
human rights as an active part of domestic and European law. Human rights have
consequently emerged as transboundary law in Europe, and significantly strengthened sense
of common and shared European values.
14
Universal Declaration of Human Rights, Dec.10, 1948. Jan Klabbers, ibid., ch.6. 15
Christoffersen and Rask Madsen, ibid.
7
The American Convention on Human Rights and the Inter-American Court are enacted and in
force from 1978. Similar conventions are emerging in other regions. The two comprehensive
UN Covenants, on Civil and Political Rights (CCPR) and on Economic, Social and Cultural
Rights (CESCR) were in force from 1966.16
The Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) came in 1979, the Convention on the Rights of
the Child (CRC) in 1989, and on the Elimination of All Forms of Racial Discrimination in
1969 (CERD). UN-Committees were established on Human Rights in general and for each of
these particular areas in order to overview and report on the implementation of human rights
in the member states. The Committees work on the basis of land reports, visits and comments
to the reports. The UN has no human rights court and no general appeal system for individual
citizens. There ois however an appeal system under the CRC.
The International Labour Organisation and the several ILO conventions, particularly
Convention no.98 on the Right to Organize and Bargain Collectively, have played an
immensely important role in the dissemination of these rights and their normative structure,
even if the implementation varies considerably.
International conventions and covenants may be lacking in effective organisations, tribunals
and enforcement mechanisms on the international level, but are to an increasing extent
implemented and adjudicated on domestic levels, particularly concerning individual rights.
New political and legal orders which include significant multi-level and co-operative
elements, have emerged adding to existing orders and changing the previous exaggerated
distinction between national constitutions and international law. It has been argued, by
Stephen Gardbaum and others, that international human rights conventions have created a
new international constitutional system qualitatively different from previous forms of
international law because they deal with the rights of individual persons and thus with internal
law, and different from national constitutions because it is transnational.17
Inter- and
transnational human rights may be seen as changing or modifying the character of national
sovereignty. They imply an increasing acceptance, formally or informally, of a transnational
legal order with effects for state sovereignty. An international or a combined form of
constitutionalism emerges, in addition or parallel to state constitutions. By the use of
international conventions human rights have been strengthened in state constitutions and
16
Philip Alston and Ryan Goodman, International Human Rights, Oxford, 2013 17
Stephen Gardbaum, ‘Human Rights and International Constitutionalism’, in Ruling the World, eds. Dunoff and Trachtman, 2010.
8
domestic law. International human rights regimes serve to fill in the gaps of state constitutions
with an often uneven coverage of human rights.
Human rights have evolved from the political philosophy of the enlightenment, via
declarations into conventions and valid statutes in domestic law. The Universal Declaration
and the following international conventions have been manifestations of human rights as
inter- and transnational law, and decisive in how human rights have been legislated as
domestic law. Even if domestic implementation often is necessary as the last step of effective
implementation and adjudication, international conventions of human rights have been vital as
ideological, ethical and symbolic breakthroughs for the idea of universal and functioning
rights irrespective of where we live, and for the acceptance of possible adjudication by
international courts.
A variety of lawyers and philosophers have contributed to the argumentation for human rights
as universal and international. Seyla Benhabib argues from the point of view of discursive
ethics for the necessity of a universal ethics and thus for universal human rights in a global
society.18
From a discursive ethical position we are all human beings on an equal level, and
we have an obligation to justify our actions in relation to all other human beings. National
boundaries cannot be recognized as arguments in ethical discourse concerning moral
boundaries concerning human rights. Only the whole of humanity can be accepted as the
purpose of ethical norms. Habermas reinforces this position by emphasizing how any
delimitation of the scope of human rights must be justified by ethically valid reasons.19
He
refers to open and democratic procedures, accessible for all, of practical deliberation in order
to test the qualities of ethical arguments. Discourse ethics must be practical and concrete,
while at the same time have universal aspirations.
The substantive arguments for this ethical position are arguably strengthened by the
increasingly intensive global interaction, communication and interdependence, economically,
technologically, culturally and politically etc.20
The interaction and exchanges of goods,
natural resources, labour, services, environmental deterioration etc have created several
dynamics of interdependence which today are complex and hard to fully assess. Economic
18
Benhabib, Another Cosmopolitanism, 2006/2011, p.27 flw. Habermas, Held, Rafael Domingo, de Sousa Santos, Nussbaum. 19
Habermas, ‘Discourse Ethics’ in Moral Consciousness and Communicative Action, 1989/2006; Between Facts and Norms, 1996, ch.4.2. 20
Habermas, ‘The Postnational Constellation and the Future of Democracy’, in The Postnational Constellation 2001.
9
and social inequalities are however still significant aspects of global dynamics and not in
decline. Global markets enable goods to be produced where it may be cheapest, but do not
necessarily lead to a decrease in the enormous economic differences and economic and social
exploitation. The economic exchanges and interdependencies do however contribute with
more necessity than ever to an ethically based argumentation for universal human rights.
Current global economic and legal structures still enable economic and social forms of
exploitation, and will continue to do so until more effective implementation and institutions of
human rights as universal are made operative and sanctionable.21
The more comprehensive
and intensive global interaction and interdependence have become combined sociological and
normative arguments for inter- and transnational regulations of different individual rights.22
EU regulation of individual rights: Free movement, citizenship and human rights
The goal of the EU was from the start to achieve a closer economic cooperation among the
member states than previously, in order to stabilize a more peaceful coexistence and
economic growth. To achieve this, the citizens of the member states, as well as corporations,
were included in the treaties, as legal subjects and holders of rights by including the free
movement of persons and services. This is not only a mechanism, but also a right to be
sanctioned by domestic courts and in some cases the European Court of Justice (ECJ). The
preamble of the Rome Treaty included a reference not only to the states, but also to ‘the
peoples of Europe’ as participants. The reference was actively applied in the ground-breaking
Van Gend en Loos decision as justification when the direct effect doctrine was explicitly
stated.23
Citizens were given the rights of EU legislation directly and immediately
enforceable, irrespective of member state implementation. Free movement of persons and
services has led to several directives specifying the scope of the rights of the citizens in
relation to labour regulations, social and health services, family reunification etc when
moving to other member states, cfr below. The principle and requirement of non-
discrimination has played a vital role in defining and expanding rights to all citizens of the
Union.24
Family members, also when from a third state and outside the EU, have been
21
Held, ‘Cosmopolitan Democracy and the New Order’, in Democracy and the Global Order, 1995, 22
Rafael Domingo, The New Global Law, CUP, 2010, ch.6; Gunther Teubner, Constitutional Fragments, OUP, 2012, ch.5; Chris Thornhill, Societal Constitutionalism, CUP, 2011 23
Case C- 26/62 Van Gend en Loos (1963); Symposium in European Journal of International Law, no.1, 2014 24
See examples: Regulation EEC no. 1612/68 on freedom of movement for workers within the Community, and Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for
10
included in the right to stay. Individual persons are involved in a large number of cases
brought before the CJEU. EU law concerning individual rights has been developed in
significant ways by decisions of the Court.25
Human rights were parts of the very first drafts to the EC treaty, but not included in the first
formal text of the Rome treaty. From the late 1960-ies references were made by the Court and
other EC institutions to general principles of law and to fundamental rights.26
In a large
number of cases from the 1970-ies onwards human rights were referred to as part of the
general principles under EU law. The increasingly expansive EC/EU legislation into a wide
variety of fields and the emphasis on the rights aspect of free movement made it difficult not
to enter into the theme of fundamental freedom rights. A Charter of Human Rights was agreed
upon in 2001, but not as a legally binding document until the Lisbon Treaty, 2010, cfr TEU
art.7 no.1 and part II of the Treaties. The TEU art.7 no.2 announces that EU will seek
accession to the ECHR, which all members of the Union already are party to. Human dignity,
freedom and human rights are referred to in the TEU as core values and objectives.
The introduction of EU citizenship was a vital part of the 1992 Maastricht Treaty. All citizens
of the member states were granted an additional citizenship of the Union. The free movement
of citizens and their families and the right to vote at municipal and EU Parliament elections
are crucial qualities of EU citizenship, TEU art.8. In the joint cases C-523 and 585/11 the
Court repeats: “Union citizenship is destined to be the fundamental status of nationals of the
Member States”. There are few specific legal consequences of the status of EU citizen, but it
underlines the significance of the legislation and many rights following from the free
movement of persons and services.
The free movement of workers is part of the economic integration scheme of the EU, TFEU
art. 45, and further regulated in Directive 2004/38/EC (previously Dir. 68/360 EC) on the
right of the citizens of the Union and their family members to move, stay and reside freely
workers of the Member States and their families; the latter replaced by Directive 2004/38/EC on the right of citizens of the Union and family members to move and reside freely within the territory of the Member States; Regulation EEC no. 1408/71 on the application of security schemes to employed persons and their families moving within the Community, replaced by Regulation EC no 883/2004 on the coordination of social security systems; Directive 96/71/EC concerning the posting of workers in the framework of the provision of srevices. 25
Some examples: Case 29/69 Stauder; Cases C-267 and 268/91 Keck and Mithouard; Case C-372/04 Watts; Case C-127/08 Metock and Others; C-341/05 Laval un Partneri Ltd; Martinez Sala; C-413/99 Baumbast; C-112/00 Schmiedberger; C-36/02 Omega Spielhallen. 26
Case 29/69 Stauder; Craig and de Burca, EU Law. Texts, Cases and Materials, Oxford, 2011, ch.11 ‘Human Rights in the EU’.
11
within the territory of the Member States.27
Goods, persons, services and capital are all made
part of the free movement in order to increase the economic efficiency of the Union. “An ever
closer Union of the peoples of Europe” was from the start an important part of the political
and legal language of the Community. There was however already from the start an inherent
tension between the economic and the social dimensions of the free movement of workers.
The balance between the two dimensions has had consequences for the formulation of the
further definitions of the rights. The economic motive was to improve economic efficiency by
enabling persons to move around wherever work was to be found. The many accessory social,
labour and health rights of workers in welfare states have however been complex to regulate
for workers making use of free movement due to the considerable differences in the structure
of such rights in the various member states in combination with the principle of non-
discrimination. Free movement is formulated as a right and further specified in Dir.
2004/38/EC. Each member state has to apply equal treatment of all workers irrespective of
EU nationality. TFEU art.45 includes nationals of the member states who are job-seekers,
workers, self-employed persons, students, and inactive persons. Family members who are not
nationals of EU states are also included in the right to stay and reside. After a period of three
months conditions can be made for those who have not found work, but workers and job-
seekers irrespective of nationality within the EU must be given the same social and labour
rights. The result has been comprehensive regulations and directives on social and labour
rights of member state nationals living in other states securing them all rights connected to
worklife, including the right to health services and education, also for family members. The
regulations do not harmonize the relevant rights among the member states. They allow
existing differences in domestic legislations, but not different rights for the persons living and
working in each state. Equal treatment is the first and foremost principle. Differences have to
be justified on the basis of EU law. Fundamental human rights may however be an obstacle to
existing domestic legislation if such rights are not sufficiently secured. In legal conflicts
concerning human rights domestic courts or the EctHR are usually the primary legal
mechanisms. The CJEU can only be applied if the legislation falls within EU jurisdiction.
One of the first comprehensive legal schemes was Regulation EEC no 1408/71 on social
security schemes for employed persons and their families moving within the Community, it
has been replaced by Regulation EC no 883/2004 on the coordination of social systems. The
main purpose of these regulations has been to secure to workers moving within the
27
Previously Regulation EEC no. 1612/68 and Directive 68/360/EEC.
12
community all accrued rights irrespective of their specific domicile. Benefits covered by the
Regulation include sickness, old age, unemployment, child benefits etc. Unjustified
overlapping benefits may be curbed in so far as seen as unnecessary for their purpose. There
are various harmonization rules to avoid such overlapping. Unemployment benefits shall for
example be provided for by the last member state where the person was last subject. Benefits
for family members, such as child benefits, shall be extended even if family members reside
in other Member States than where the work is done, and the rights of the worker are accrued.
The Regulation includes the right to sickness benefits in any Member State when such person
travels to the state in question for the sole purpose of receiving such benefit. This is however
conditioned upon seeking authorisation in advance, on the treatment in question being
provided for also by the Member State where the person resides, and that such treatment
cannot be given within a time-limit which is medically justifiable, Reg. no 883/2004, art.20.28
The free movement of workers includes the right to bring the closest family members, also
when they are from a third state outside of the Union, and even if they have not taken up
lawful residence in the home state of the family member who is an EU member state
national.29
Member states are however not deprived of all possibilities of controlling
immigration into their territory. The right to family reunification is based on ECHR art.8 and
12. Further conditions may be given in domestic statutes, but must preserve the core of the
rights, be objective in relation to immigration control, and non-discriminatory. There are
many differences in the internal statutes of member states in these and other areas, but the
right to free movement, TFEU art.20 and 21, and various regulations under the Area of
Freedom, Security and Justice require significant elements of EU harmonization.
The right to seek education in all member states is seen as included in the right to free
movement on a non-discriminatory basis. Nationals of all member states may seek access to
higher education and shall be treated on an equal manner as the citizens of the host state,
including the levels of tuition fees. Grants to cover the costs may be regulated and with a
preference for students integrated in that state, but only in so far as necessary to achieve
accepted and justifiable policy objectives.
28
See Case C-372/04 Watts. 29
See Case C-127/08 Metock.
13
The transnational level and its dynamics
Transnational communication and factual dynamics contribute significantly to the creation
and relevance of transnational values and common normative structures. The many
overlapping dynamics between the domestic and the global create frontier zones and analytic
borderlands with different trajectories of interaction.30
The boundaries between domestic and
inter- and transnational law are weakened. While many societal, cultural and economic
activities are increasingly transnational, the normative, legal and value-based learning
processes are often more attached to the domestic and internal levels, but are still affected as
well.31
National sovereignty and constitutionalism is consequently affected in several ways by
the many factual and normative forms of globalization. The powers of constitutional
authorities will change in scope and in how they may operate and function. They are
increasingly bound by international obligations and affected by transnational factual
dynamics.
Consequences for the functions of constitutional law
In the era of the nation-state citizens have gone from being objects to being subjects and
founders of the state as well as its purpose. In democratic states its citizens are the basis of the
state, while at the same time having rule-of-law guarantees against its abuse of power.
Democratic constitutions are the legal and the social contract whereby citizens create a state,
ascertain certain values and procedures, affirm basic freedom rights and transfer certain
powers to state authorities. It is part of the social contract of democratic constitutions that the
democratically elected legislative assemblies have the primary power to legislate in all
societal areas relevant and necessary for the rights of citizens, and the responsibility to do so
in so far as is required for the protection of citizens.
Most individual persons are citizens of one state, some may have double citizenship. Refugees
and immigrants may apply partly for the right to stay and to work, and partly for the right to
citizenship in the state they arrive at. Citizens have certain exclusive rights such as the right to
vote at state elections. All individuals staying in a country are entitled to human rights as well
as the various other public and private rights following from general legislation and the
constitution. A sovereign state has general responsibility for all individuals staying in its
territory. This includes making decisions on application for asylum. Immigrants who do not
30
Saskia Sassen, ibid., ch.8. 31
Gunther Teubner, ibid., ch.3 II and 5.
14
fulfill the criteria for asylum, following from the Convention on the Status of Refugees, or are
given permission to stay and to work, may be extradited. This is part of the principle of state
sovereignty. International law has been seen as additional to domestic law, and in dualistic
states such as Norway international law must be specifically incorporated or transformed into
domestic law in order to be valid as positive law and sanctionable in relation to citizens and
other individuals on the territory. International law has previously generally not been seen as
having direct access to or responsibility for the legal position of citizens. The state has been
the link between citizens and international law. Vital exceptions have been refugee law and
humanitarian law in cases of conflicts between states. Here international law has been
necessary to fill in the gaps of domestic law regimes.
The first general ideas of a cosmopolitan law for all citizens of the globe emerged with the
enlightenment, particularly advocated by Kant, at the same time as the emerging ideas of
individual freedom and self-government of nation-states.32
It is inherent to the idea of
individual freedom that such rights have to be universal, for all. National sovereignty was
however generally accepted as a legitimate form of delimitation of a people, a territory and of
constitutional responsibility. Universal rights were initially an idea not a legal fact. The first
more legal expression of international and universal human rights came in the form of the UN
Universal Declaration of Human Rights of 1948, not operative law, but a legal document with
a powerful symbolism. The ECHR followed in 1950, and the two main UN Conventions on
Civil and Political Rights (CCPR) and on Economic, Social and Cultural Rights (CESCR)
were negotiated and in 1966 enacted, and more conventions followed.
The atrocities of the two world wars in the twentieth century led to strong reactions in terms
of the need to secure certain rights for military soldiers and civilians during armed conflict, as
specified in humanitarian law, and for refugees during and in the aftermath of conflicts, in
refugee law. In such situations the need for transnational law was obvious, because the
conflicts were transnational. The extreme situations inspired more comprehensive and general
international human rights, first as declarations and later as conventions. Regional human
rights conventions have emerged first in Europe and in the Americas and now in other
regions. There is no UN or other global human rights court, but the ECtHR has become a vital
instrument of human rights and an inspiration for similar courts in other regions. Its decisions
32
Kant, Zum ewigen Frieden, Berlin, 1995 (Perpetual Peace, Bristol, 1992); Seyla Benhabib, The Rights of Others: Aliens, Citizens and Residents, and Another Cosmopolitanism, Oxford, 2006; Jeremy Waldron, What is Cosmopolitanism, in Journal of Political Philosophy, no.2, 2000; Domingo, ibid., 2006.
15
have become vital legal precedences in many of the member states. The international and
European human rights conventions have become vital normative and legal patterns which
democratic states incorporate and abide by, albeit to different degrees and unavoidably with
significant variations and disagreements on interpretations and implementation. International
human rights law have played and still plays a predominant role in defining the most basic
freedom rights of citizens, including those rights which most regularly are constitutional
rights, and to a high degree also social, economic and cultural rights, even if most of the
implementation and adjudication still are done by domestic administrative and judicial bodies.
The incorporation of international human rights is of course voluntary for each state, but the
main UN conventions are with very few exceptions accepted as the normative standard of
individual and freedom rights. The ILO conventions on labour and the right to organize and
bargain collectively have become vital normative patterns for work-life organization.
In TFEU arts. 20, 21, 45 and 48 are the treaty basis for the right to free movement of persons,
within the Union. A large number of further EC/EU regulations and directives have been
given on the rights to seek employment, stay and reside, and to social security and health
services which are seen as necessary to make the free movement of persons fully effective and
based on non-discrimination. A motive for the EU has increasingly been to strengthen EU
citizenship, substantively and legally. Several CJEU decisions have given further
interpretations, including on the relations between EU and domestic law. The EEA treaty
secures all EU legislation on free movement of persons and services to Iceland, Lichtenstein
and Norway, but without the citizenship element.
The examples referred to above illustrate the expansion of international conventions and
treaties legislating on the rights of individual persons after 1945. The examples of treaties
mentioned are either ratified by a large number of states (UN, ILO) or by a smaller number of
member states (EU), but then more intensively implemented. The conventions and treaties
mentioned are currently seen by a large number of states as normative and legal patterns for
individual rights and as highly respected parts of international or European law. Most of the
implementation and adjudication is still done domestically, but an increasing number of
international and European courts such as the ECtHR, CJEU, ICTY, ICTR and ICC, and
many more, deal with cases also concerning individual persons and their rights. Their
decisions are generally highly respected, some of them landmark decisions in their fields.
Significant parts of the conventions and treaties referred to above are today vital patterns for
and parts of the core of domestic legal regimes, including their constitutions. Fundamental
16
freedom rights are paradigmatic of modern legal systems. They define vital parts of the
structure and substance of modern state constitutions.
Ratification and implementation of international conventions and treaties is voluntary, but a
significant part of their principles and rights have become politically and ideologically
predominant and accepted for modern and democratic states. They are seen as an international
consensus with significant implications for decisions to ratify treaties and thus for national
constitutions and their domestic legal systems.
Legal and legal theoretical approaches to the new forms of inter- and transnational law
What is clear from the above, is that domestic constitutional law and international law cannot
only be described as fully separate legal regimes, but are increasingly interacting, cooperating
and overlapping, in formal and informal ways. There are several variations to and degrees of
the legal interaction referred to, and there are different theoretical approaches to describing
and justifying the interaction normatively.
Gunther Teubner has described the current situation as an emerging condition of
transnational constitutionalism.33
He argues that the many conventions on international
human rights and the overwhelming formal, political and more informal acceptance and
power of such rights has resulted in a situation where fundamental freedom rights have
emerged as a form of transnational law. He argues that the acceptance of these rights by
transnational organisations, dispute-settlement bodies and tribunals document that
international human rights are accepted as law in transnational legal regimes, irrespective of
domicile .34
Fundamental rights, he argues, should due to their qualities be seen as part of
domestic and transnational constitutional law if accepted by transnational regimes or
organisations, irrespective of state implementation. He insists however that the legal status of
human rights must be verified on each level of law separately, even if the interconnections
between the levels play a role in how they are dispersed. ‘Public anger’ at injustice may
initiate or invigorate human rights, but must be followed by some form of legal
implementation.
33
Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization, Oxford: 2012, ch.5.I. 34
Teubner, ibid., p.129-130.
17
Saskia Sassen applies a similar combination of a (legal) sociological and institutional
approach to the analysis of the relations between national and global dynamics.35
She insists,
as Teubner, that the national and the global represent different ‘spatio-temporal orders with
considerable internal differentiation and growing mutual imbrication’.36
The two levels have
different institutions and functions, but increasingly they relate to each other and interact, and
are inevitably affected and changed by the interaction. By the two different levels and
between them a series of frontier zones of transnational interaction are produced, and further
organized, in public as well as private forms. Cross-border and transnational activities,
including an increasing number of transnational actors, change the previous national and
international institutions by adding new layers of dynamics and institutions, and thus forming
new actors and new normative powers.37
The previous distinction between the national and
the international is replaced by a more multi-levelled and pluralistic landscape of institutions
and normative powers, with non-hierarchical and network oriented dynamics. In relation to
constitutional law it is emphasized that national constitutional principles and institutions are
affected by the new context of increased varieties of inter- and transnational law and politics.
Constitutional law will increasingly be embedded in a context of transnational legal dynamics
and a significantly increased focus on international cooperation. Nationally delimited
democratic regimes with their lack of account of cross-border effects must take account of
both their own need for improved inter- and transnational relations, and the need for more
democratic and legitimate inter- and transnational politics.
Jürgen Habermas takes his point of departure in the principle of democratic self-government
as the only form of legitimate government in modern societies. Democratic self-government is
however not primarily a formal arrangement. It requires ‘a nation of citizens’ who can act
together as subjects, and who have formed some form of collective identity, ‘feeling
responsible for each other’, even in a collective and anonymous way.38
Nation-states have
been such political orders with democratic rights and collective responsibilities, such as
taxpaying and security. Since the 1970-ies a variety of increasingly global dynamics have
however changed the preconditions of democratic self-government in nation-states and
challenged the possibilities of a ‘people’ or a ‘nation’ to be effectively democratic.
International trade, travel, internet communication and the dissemination of new technologies
35
Saskia Sassen, Authority, Territory, Rights, Princeton, 2006, ch.8, p.380. 36
Ibid. 37
Ibid., ch.5, p.270 38
Jürgen Habermas, «The Postnational Constellation and the Future of Democracy» in The Postnational Constellation, Cambridge: Polity Press, 2001, p.64-66.
18
etc have resulted in increasingly trans- and international factual dynamics. Domestic
legislation and decision-making on the economy, industrial regulations, the use of chemicals,
the application of new technologies etc will often have significant cross-border effects thus
affecting the lives of persons living in other states and territories, with democratic deficits as a
result. International trade and financial markets create economic dynamics with significant
and intransparent effects for all states, and creating complex consequences for democratic
self-government. International treaties and other forms of cooperation are vital mechanisms
for democratic states to govern, manage and adapt to the new and more complex forms of
inter- and transnational economic and technological dynamics. International human rights are
fundamentally an expression of certain values, and an attempt to express the solidarity of
nation-states and citizens on the international or global level across and irrespective of state
boundaries. International human rights are an attempt to contribute to improved conditions of
legitimacy on the level of inter- and transnational political and legal orders. The postnational
constellation with the many cross-boundary effects requires international and universal human
rights.
Seyla Benhabib approaches the theme of more international legal orders by stating that the
1948 Declaration on Universal Human Rights signifies a move from international to
cosmopolitan legal norms.39
With cosmopolitan legal norms all individuals are endowed with
fundamental rights irrespective of nationality. Individuals are given an autonomous status in
the global (political and legal) order without membership in a state, even if these rights are not
part of a fully sanctionable legal order, yet. Her view may be primarily morally and political,
but she also claims that these rights have a certain legal status. Her views are developed from
the position of discursive ethics which require a universal morality and the willingness to
recognize all other individuals as participants in ethical discourse. She recognizes the
existence of delimited societies such as nation-states and the particular moral obligations we
may have as part of the membership in such societies. There is then an unavoidable tension
between the obligations of citizens in such delimited, but legitimate societies, and our simple
existence as human beings and participation as human beings in humanity in general.
Benhabib insists on both distinguishing and combining the moral, the ethical and the political
justification of human rights on the domestic and global levels respectively. The consequence
is an acceptance of both national and global societies as separate levels, and additionally the
unavoidable interaction, overlapping, conflicts and tensions between them. Any delimited
39
Seyla Benhabib, Another Cosmopolitanism, in The Berkeley Tanner Lectures, 2006
19
society with particular norms for membership will include tensions between the included and
those who are excluded. From the point of view of cosmopolitan ethics, nations cannot have
fully legitimate decisions on criteria for membership, as the outsiders are not part of such
decisions. Kantian cosmopolitanism recognizes however the mutual relations between
domestic, international and cosmopolitan law. Cosmopolitan law emphasizes more explicitly
than other legal orders ‘hospitality’ in relation to ‘the other’ as vital values, and consequently
our moral obligations concerning the rights to asylum for refugees. Cosmopolitan law, as
Benhabib refers to it, implies an unavoidable overlap and tension between domestic
constitutional law and cosmopolitan norms, but not an impossible conflict. It is rather the
necessary combination of universal human rights and local and national societies.
Constitutional law and individual rights in an inter- and transnational world
In democratic nation-state regimes the citizens are both subjects and objects of the law of each
state respectively. Citizens elect state authorities in regimes of self-government. In reciprocity
state authorities have the responsibility for the justice, security and welfare of citizens.
International law and government has been seen as international relations between states, and
between states and international organisations, possibly including NGOs. With the Universal
Declaration and the following conventions in international human rights, humanitarian law
and refugee law from 1948 onwards international law has become the forefront of legislation
on individual human rights. Vital normative patterns for human rights have been created and
confirmed internationally. Implementation and adjudication is still primarily done on the
national level, but the comprehensive international and regional human rights conventions
have arguably played decisive roles for domestic constitutional and legislative processes.
International human rights have created the standards and an ideological power which
probably has been quite vital in relation to local political conflicts. Universal and equal rights
for all citizens have proved to have a convincing ethos.40
Discourse ethics and universal rights
have in fact taken vital positions in the play for legitimate governance. State sovereignty is
insufficient.
States do, however, still have the main authorities and the apparatus to implement legislation
in relation to citizens. In human rights law, but also in other areas of law, deep and
40
Seyla Benhabib, ibid.
20
comprehensive forms of interaction between national and international authorities have
however become vital. Autonomous forms of national sovereignty are replaced by a
sovereignty which is embedded in an inter- and transnational society where not only
economic and technological exchanges occur, but with vital political and legal interactions
and interdependencies. Complex and networking relations are probably more predominant
than hierarchies on the inter- and transnational level, among states and international
organisations. Most vital societal dynamics are in our time, albeit in different ways, part of or
influenced by inter- or transnational dynamics. Even national constitutional texts and
practices have always been highly influenced by political and legal ideas, trajectories,
decisions and norms on the international level. National constitutions may be specific in form,
but borrow intensively from international political ideas and from each other.
Economic, welfare and environmental legislation on the national level is influenced by
regional or international law in similar ways. European legal integration, via EU, EEA and
ECHR, affects domestic law more effectively than international human rights. EU law is
directly sanctionable in member states and covers significant parts of domestic law. There are
direct connections between the CJEU and member state courts via TFEU art.267 on the duty
of domestic courts to approach CJEU on questions of clarification of EU law. The normative
infrastructure of free movement of goods, persons, services and capital has been vitally
influential directly and indirectly in the member states, but also as a normative pattern beyond
the EU. WTO treaties and DSB adjudication have most probably been influenced by the
comprehensive case-law and expanding regulations of the EU. International and liberal trade
regulations are both result of and precondition for the comprehensive forms of international
trade we know today. Domestic and international liberal economic regulations have
historically influenced each other. The new emphasis of free movement in the EU and WTO
has probably served as a renewed normative pattern for and been applied by an increasing
number of states. With free movement applied to persons, services, intellectual property rights
and capital, there has emerged an equivalent diversity in its forms.
International trade has thus created complex interdependencies between regions and states on
several dimensions: economic, financial, environmental, labour market, social and welfare
conditions etc. It has become obvious that domestic legislation, or the lack of it, often have
significant cross-boundary effects for other states and other peoples, but without their
democratic participation in the decisions affecting them. Self-government has become more
complex than ever to achieve, due to the comprehensive interdependencies across boundaries.
21
More intensive forms of transnational economic and technological interaction have led to a
need for increased legal harmonization in order to create the necessary legal infrastructures.
As much as constructing sovereignty, state constitutions are currently and equally as much
part of comprehensive and intensive inter- and transnational interaction and organisations.
Constitutions are relatively stabilized texts and practices, but they do not function, nor are
they formulated in a vacuum. They are affected by the increasing cross-border and
transnational interaction and communication, economically, culturally and politically. Modern
states cannot any longer act alone. They are as much dependent on each other and on
international organisations as they are sovereign. External sovereignty is currently more about
the ability to communicate and interact wisely with other states and organisations, than about
being able to ‘go it alone’. The current complex interdependencies and dynamics are
configurated in the many international treaties, conventions and organisations.
International cooperation is today multi-purposive and demanding with huge conflicts
between the different areas. States and international society are currently facing several urgent
and risky tasks which they cannot solve alone, such as climate change, environmental
degradation, food production, mass migration, poverty etc. International cooperation in its
various forms is as vital as democratic state sovereignty in solving such crisis. Human beings
are not only citizens of their home state or local community, but also world citizens on several
dimensions, starting legally with the Universal Declaration of Human Rights. With universal
and international human rights follow a global and common responsibility for all citizens by
all citizens. Human beings, states, NGOs and corporations all have both local and global
responsibilities. International human rights conventions have by their ideological, symbolic,
political and legal powers, been at the forefront of this development and have become
international standards, even if some states hesitate to ratify or implement, and even though
there are vital disagreements on how to implement rights. The Geneva conventions on
humanitarian law underline the existence of individual rights in situations of conflict and
emergency when single states may be powerless. The power of international markets has
resulted in comprehensive regional and international treaties creating normative standards for
free movement with effects for states and their legislation. Vital aspects of citizens’ rights and
other legal standings are thus legislated by international and regional conventions and treaties
and incorporated or harmonized by state legislation. Constitutions and state authorities are
consequently participants in inter- and transnational processes as much as sovereign
protectors, even concerning the rights of citizens.
top related