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Draft Paper - for the IACL Conference June 2014 - Not for citation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

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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

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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’.

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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.

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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.

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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.

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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.