Chapter 1: Issues


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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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