01.03.01 |
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Translation:
Dr. Nicola Rowe, Hamburg
1.
A.
The world order of the twentieth century, to which the
twenty-first century refers, rests upon the principle
of the territorial state, a
fundamental formal principle which is valid in every corner of the globe and
is nowhere called seriously into question. Humanity is not united: it is
divided into approximately 200 distinct communities (peoples). These form
legally and politically recognized governing entities [Herrschaftsverbände]
which are independent (sovereign) and which are known as states. Each state is
allocated a delimited portion of the earth’s surface (state territory), over
which it has exclusive power to rule (state power [Staatsgewalt]), but to
which its power is generally restricted. In this world order, the concept of
rule by virtue of higher law (sovereign power/public power
[1]
[Hoheitsgewalt/öffentliche Gewalt]) refers essentially to the rule of a
sovereign governing entity over the territory over which it has control, which
is to say the rule exercised by a state over its state territory. Within this
world order, a sovereign public power - which is to say a power which is
original, rather than derived, and which is not dependent - cannot be obtained
by authorities other than states.
2.
Every state may determine its own organisation and
may exercise its public power as it likes, subject only to those minor
restrictions imposed by public international law. Each of the approximately 200 discrete communities into
which the human race is organised is free to
follow its own political and ideological principles, giving effect to its own
cultural characteristics within its own state order (right to self-determination). This can
mean that those who disagree (or who no longer agree) with the current state
of affairs may form a new, independent community (a new people), establishing
a new sovereign governing entity. The world order of states provides for the
division of the earth’s surface into states, but it does not specify their
number or identity.
[2]
3.
The overwhelming majority of states see themselves as nation-states - as
the governing entities of distinct, homogenous communities, or nations, which
can be identified by historical, ethnic, cultural or linguistic criteria. At
the heart of this self-image lies the theory of the nation, a doctrine which
has been influential since the end of the 18th century. The
principle of the formation of nation-states, which derives from that doctrine,
has influenced the 20th century world order quite as significantly
as the principle of the territorial state;
[3]
thus, it is appropriate to refer to a world
order of nation-states. For a great many decades, that world order was
characterised not only by the Earth’s subdivision into nation-states, but
also by a mindset which centred on the nation-state, a common way of thinking
to which an understanding of the individual nation-state as the sole focus for
law, politics and scholarship was key. Responsible co-operation with other
nation-states hence developed only sluggishly. On closer examination, it is
evident that this mindset is a blend of three different ways of thinking which
chanced to flourish simultaneously: a general orientation towards the nation,
towards the state as a political institution and towards the individual state.
[4]
4.
The decades following the Second World War saw escalating upheaval in the
world order of nation-states. No one nation-state was equal to the tasks and
dangers which developed, and the magnitude of the challenges which states face
has increased continuously.
Today, an increasing globalisation and geo-regionalisation of individual problems is
evident. The nation-state is increasingly out of its depth in a growing number
of areas.
[5]
5.
Initially, the creation of a great (Western) European federal state - a
“United States of Europe”, following the American model - was seen as the
only adequate response to these challenges. In the end, however, Western
Europe’s nation-states sought other solutions. They co-operated increasingly
through treaties and international organisations. And they founded supranational institutions, bodies and organisations under public
international law to which they transferred sovereign rights [Hoheitsrechte],
thereby enabling these institutions to exercise public power directly over
citizens and public authorities in member states without the assistance of
domestic authorities. It was difficult to reconcile even this development with
the traditional biased orientation towards the nation-state. Three related
supranational organisations, the European Communities, were also designed to
serve the general integration of their member states. They were reformed
several times. The Treaty of Maastricht transformed the Communities into the
European Union, adding two further “pillars” of intergovernmental
co-operation.
[6]
6.
B.
The ensuing European
Union is the interim result of a continuous process of unification which
is not guided by any particular
historical example. While parallels with many historical organisations are
present, each historical organisation also demonstrates significant
differences. Thus, for example, the European Union and the Holy Roman Empire
show surprising institutional similarities. Unlike the structure of the
Empire, however, the Union’s structure reflects a rational design, so that
it can be analysed logically and systematically with the tools of legal
reasoning. The supranational governing entity known as the European Union is a
specifically European development of our age; indeed, it is one of the
greatest innovations in twentieth-century European history.
[7]
7.
The European Union is a peculiar creation which clearly has yet to attain
its final form. Attempts to grapple with it within the traditional framework
provided by public international law, constitutional law and political theory
[Allgemeine Staatslehre / Staatstheorie]
[8]
can fairly be said to have caused the confusion and uncertainty which
characterise both the political and the scholarly discourse. There is as yet
no consensus on the name of the genus to which the Union belongs. The
literature contains numerous circumlocutions, most of which are overly vague.
The most common terms are “association of states” [“Staatenverbund”,
sometimes translated as “compound of states”], which is the term adopted
by the Federal Constitutional Court, “organisation sui generis”, “community
of states”, “supranational community” and “supranational union”. The
genus is here termed a supranational
union, since that description recalls both an origin in a supranational
organisation (the ECSC) and the particularly close relationship between
participating states, and has not yet been coloured by use in the context of
the three European Communities. It can, moreover, be translated into other
languages without fear of corruption.
[9]
8.
The lack of accepted terminology is symptomatic of the lack of clarity
which besets the fundamental institutional, structural and legal context of
the European Union. There has been a failure to reach consensus even on basic
issues involving the construction of the European Union, its legal nature and
its international legal personality. Many fundamental questions still lie open
- for example, the way in which democracy should be realised in the Union,
member states’ sovereignty, the relative priority of supranational and
national law, and the resolution of conflicts of competence in the final
instance. Answering these questions is made much more difficult by the
dynamics of the European organisation of integration [Integrationsverband], by
its complicated structure and by the plurality of sources from which its legal
basis derives.
[10]
9.
A tendency towards skewed
or one-eyed approaches also influences perceptions of the European Union.
Issues and problems are often misjudged or taken out of context: scholars have
let themselves be guided all too readily by the customary explanations
delivered by traditional political theory. Where national and supranational
law collide, there is a temptation to conceive of the problem as purely
bilateral, ignoring the fact that the European Union comprises fourteen other
states besides the one affected, so that a solution which took only the needs
of the affected state into consideration would be highly likely to give rise
to problems in other member states. Problematic, too, is the fact that
academic discussion has tended to take place in closed circles, segregated not
only by nationality and language but by discipline (law, sociology, political
science), and, indeed, frequently by sub-discipline (European law,
constitutional law/political theory, public international law).
[11]
10.
C.
Today, the use of public power is vertically
differentiated to an extent that would have been unthinkable in the old order
of nation-states. Modern government is split vertically, specialised,
constrained and interwoven: there is a greater number of levels, types and
interlocking instances of public power than has been the case in the past.
This raises questions of fundamental importance: is this a plurality of
discrete public powers? Or is it a question, instead, of component parts of a
single public power which together comprise a single system? Does this system
have a fulcrum (Archimedian point), and, if so, at which level might it be
located? Can it shift? What consequences will the answers to these questions
have for the relationship between national, European and international law?
Indeed, this raises another fundamental
question: what is the residual
significance of the state in today’s world? The increasing integration
of the state into international and supranational structures has changed its
role. As borders open and cross-border mobility increases, as policies of
national governments are synchronised and economic areas are amalgamated, the
contours of the state begin to blur. Again and again, discussion of how best
to redefine the position of the state centres on the concept of sovereignty.
[12]
11.
D.
In the 1990s, radical change to the world order of
nation-states, the rise of a supranational entity in Europe, increasing
differentiation of public power and the change of the role of the state have
provoked increasing calls for a strengthened, revitalised nation-state. These
calls reflect concern not so much for the nation-state itself as for the
legacy of historical concepts beyond the concept of the nation-state. The
concern is for the future, ongoing complete implementation
of those guiding philosophical and political ideas which, deeply rooted in the
Western philosophical and constitutional tradition, mould national systems of
government and constitute the fundamental
values [Grundwerte] and (other) fundamental
ideas [Leitideen] of the contemporary modern state. Using constitutional
law and the ordinary law of the land, nation-states had developed institutions
which implemented and protected those values and ideas. But these institutions
have declined in effectiveness - or are in danger of being sidelined. Measures
taken at the supranational level have not generally inspired confidence that
they will make that good.
[13]
12.
The
primary focus of concern is for democracy.
That concern has been triggered by a decline in the influence which the
peoples of individual member states are able to exercise, and by the way
in which the system as a whole has become increasingly governmental, but much
less parliamentary in nature. There is concern, too, for basic
rights, for supranationality has lessened the importance of basic rights
in national constitutions, and has weakened the measures adopted there for
their protection, since both basic rights and their protection are
increasingly displaced by supranational law. The interpretation given by the
European Court of Justice to norms which grant competences has been decidedly
lopsided, favouring the Communities. This has given rise to concerns for the rule
of law. These concerns have been intensified by the German Federal
Constitutional Court’s threat to act as a domestic court of review of final
instance, treaty provisions notwithstanding. Concerns for the future of the social
state [Sozialstaat] are essentially political: the European internal
market, competition, and participation in the single currency are bringing
changes in their wake, but do not yet jeopardise the social state qua
fundamental value of political theory. There is concern, too, for the fate
of federalism, as is evident above all from warnings that the competences
of the German Länder may be undermined. However, since the Länder use
bilateral contacts at the senior political level, formal representation in
Brussels and the Committee of the Regions to lobby on their behalf, some
critics have warned that the federal level of government may be weakened
because of the concomitant challenge to the Federal Government’s status as
the sole representative of German interests. In some unitary states, similar
developments have led to fears for the future
of the unitary state. Finally, concern for national
and regional identity is evident in
warnings regarding a potential loss of national statehood,
in resistance to the levelling
of cultural differences and in
reservations concerning the phenomenon that principles and institutions of
domestic administrative law, which underpin the rule of law, are overridden
and overlaid by the law of the Union (the “Europeanisation of administrative
law”)
[14]
.
- If public acceptance of European integration is not to decline, convincing
solutions to these challenges will need to be found.
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[1]
The synonymous terms “sovereign power” and “public power”
stand for all power exercised by public authority. In order to avoid
misunderstandings caused by the ambiguous word “sovereign”, the term “sovereign
power” will not be used in the following. - The function of the exercise
of public power is usually described with the term “government”.
[2]
1-A.I.1.
[3]
1-A.I.1.
[4]
1-A.I.2.
[5]
1-A.II.
[6]
1-A.III.
[7]
1-B.II.
[8]
Political philosophy and general state theory (= general theory of
the state), including general theory of associations of states (and of the
supranational union) and constitutional theory.
[9]
1-B.III.1; French: Union supranationale, German: Supranationale
Union; Spanish: Unión supranacional.
[10]
1-B.III.2.
[11]
1-B.III.3.
[12]
1-C.
[13]
1-D.
[14]
1-D.I-VI.
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