The Human Rights Clause in the European Union's External Trade and Development Agreements

Abstract: Since 1992, the European Union (EU) has included in all its agreements with third countries a clause defining respect for human rights and democracy as an ‘essential element’ of its external relationship. A Council decision of May 1995 spells out the basic modalities of this clause, with the aim of ensuring consistency in the text used and its application. The human rights clause is unique to the EU's bilateral agreements, and now applies to over 120 countries. It represents a new model for EU external relations as well as for international cooperation. The EU plays a leading role in the WTO and international economic relations. The human rights clause will have implications for the development of international rules concerning trade‐related human rights policy.     

European Citizenship and EU Immigration: A Demoi‐cratic Bridge between the Third Country Nationals' Right to Belong and the Member States' Power to Exclude

European citizenship entails, for EU nationals, a right to belong across borders. This article questions the implications of this latter right for the status of third country nationals in the EU. It contributes to address a gap between the literature on European citizenship and the literature on the admission and civic integration of third country nationals. The article begins by tracing a disconnect in the rules and narratives on admission and naturalisation of third country nationals in the EU. This is a disconnect between logics of individual rights protection, which European citizenship infiltrates, and logics of state sovereignty and governmental discretion, which otherwise dominate relevant rules and narratives. The article relies on the political science literature on mutual recognition and demoicracy to reinterpret European citizenship's norm of belonging across borders so as to reconcile the disconnect. Ultimately, the theoretical bridge that the article draws between citizenship narratives and immigration narratives offers a novel perspective on the tension between liberal values and integration discourses in Europe. It also sets out a possible frame to begin rethinking rules of engagement and cooperation in the context of the EU common immigration policy.     

Retrieving the ‘subject’ of European integration

In this article, a critical reinterpretation of citizens as subjects of European integration moves the focus of EU law from EU citizens' subjection to their subjectification. This analysis draws on post‐structural social theory in arguing that the law is instrumental to securing the material conditions for transnational political subjectification because it regulates both EU citizens' access to transnational social relations and the perception of difference between them. However, the law also reinforces constraints on the process of transnational subjectification. Systematic obstacles, which must be taken into account, are not limited to economic status, but include other variables like gender or age. It will be argued on this basis that EU law needs to develop a more coherent politics of subjectivity. Towards this goal, the law must carefully attend to what is (and is not) depoliticising in EU citizenship rights.     

Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.     

The Current Status and Prospects of the 'Strategic Partnership' between the EU and China: Towards the Conclusion of a Partnership and Cooperation Agreement

Abstract: This article aims to evaluate legal aspects of the content and implementation of the ‘strategic partnership’ between the EU and the People's Republic of China. In the absence of a category of ‘emerging countries’ in international economic law, the Union must adapt its foreign policy with regard to this major economic and commercial power. Relations between the European Community and China are currently governed by a second‐generation agreement from 1985. However, a new dynamic has been set in motion since 2003, by the drawing up of preparatory documents by both parties and joint declarations at annual summits bearing on the ‘strategic partnership’. Seen in a long‐term perspective, this partnership helps provide a measure of predictability in relations between the two partners, through combining elements of ‘soft law’ and ‘hard law’. If the insertion of political dialogue into the strategic partnership seems to alter the coherence of the Union, notably with regard to the difficulties of implementing the dialogue on human rights, the added value of the partnership lies essentially in its economic and commercial aspects, through not only the putting into place of non‐binding ‘economic dialogues’ which cover a large spectrum of the relationship, but also by the multiplication of sector‐based accords in numerous areas (maritime transport, customs cooperation, etc.). This constant development has thus allowed parties, at the last annual summit, to envisage the conclusion of a new framework agreement: this is the origin of the mandate given to the Commission in December 2005 to conclude a partnership and cooperation agreement. This article will sketch out a forecast of the legal framework, measured against the yardsticks of Asiatic regional reconfigurations and the law of the World Trade Organisation (WTO). The commercial risks of the relationship could imply the integration of the domains known as ‘WTO plus’ into the future agreement, notably in the field of investments and intellectual property rights, which would introduce a greater variety into the agreement. That being the case, the negotiations risk being equally fragile at the political level, in particular concerning the insertion of a clause of democratic conditionality in the future agreement. Also, any clash between the values and the interests of the EU would be uncomfortably highlighted during negotiations.     

Does the Centrality of Values in the Lisbon Treaty Promise More Than It Can Actually Offer? EU Biometrics Policy as a Case Study

The Treaty of Lisbon introduced the term ‘values’ in EU primary law. This development coincided with the granting to the Charter of Fundamental Rights of the same legal force as the Treaties. The question remains, though, how the prominence of values is actually shaping EU law and policy. This paper critically appraises the ways that certain values translated into the Charter's principles and rights are being construed under the EU policy for biometrics, a security technology whose use is being actively promoted by the EU. We conclude that the balancing of pertinent values, namely security and liberty, owe to a great deal to political and economic considerations that shape EU politics. Research priorities, combined with those of EU security policy, in particular, the fight against terrorism, then tend to prevail over ethically or morally based legal claims in respect of biometrics.     

The Log in Your Eye: Is Europe's External Promotion of Religious Freedom Consistent With its Internal Practice?

The commitment of the EU to the external promotion of the respect for human rights allegedly distinguishes its foreign policy from that of traditional powers. Yet there is the perception that EU's statements are not always consistent with internal practices. This article analyses one set of EU's inconsistencies that has not been sufficiently studied: the discrepancy between internal and external human rights standards. The article focuses on the promotion and protection of freedom of religion or belief, which has become a priority of the EU's foreign policy. It is submitted that the EU's external position generally reflects values common to the Member States, but is sometimes contradicted by the practice of domestic authorities. The human rights standards identified in the EU's foreign policy may arguably serve as a reference for legal reform and the interpretation of fundamental rights in Europe.     

Granting the Right to Vote for the European Parliament to Resident Third‐Country Nationals: Civic Citizenship Revisited

The EU grants rights to third‐country nationals (TCNs) and strives to approximate their rights to those of Union citizens. Up to now, the approximation has extended to social and economic matters. This article investigates whether political rights, notably voting rights for the European Parliament (EP), should also be approximated. To this end, the analysis applies Dahl's democratic principles of ‘coercion’ and ‘all affected interests’ as well as Bauböck's principle of ‘stakeholding’ to the position of TCNs in the EU. Against that background, it explores the relevance of arguments for and against granting TCNs the right to vote in European elections and submits that voting rights should be granted to long‐term resident TCNs. The author then proposes including TCN voting rights in the legal framework for EP elections and concludes by suggesting the use of the concept of civic citizenship to express political approximation of TCNs to EU citizens.     

The Trilemma of European Economic and Monetary Integration,and Its Consequences

The article analyses trade‐offs between sovereignty, mass politics and economic and monetary union (EMU), employing Rodrik's paradox of globalisation. The logic of EMU is incompatible with sovereignty and mass politics—only two of the three can coexist. It is argued that three different answers to the trilemma can be observed in the EU practice. In the initial EMU, integration was limited to safeguard mass politics and sovereignty. Member States were free to set economic policies in response to domestic mass politics. This proved unsustainable. During the crisis, democracy was sacrificed to bolster integration, while sovereignty was maintained. Rules on fiscal discipline and macroeconomic imbalances constrain mass politics, and non‐democratic institutions have acquired more prominent roles. Finally, long‐term plans for a genuine EMU envisage the strengthening of integration and moving the locus of democracy to the EU level, while weakening sovereignty. The analysis carries implications. If national courts insist on sovereignty and democracy, the likely consequence is an unworkable EMU, damaging the output legitimacy of the EU. The model adopted in the crisis reinforces the elite nature of the EU, undermines democracy at the national level and may bolster political extremism. This leaves the task of building the preconditions for democracy at the European level.     

Mapping Human Rights, Reading the European Union

Abstract: The EU's human rights policy has provoked increasing scholarly attention over the last decade. Yet rarely has it been subjected to rigorous analysis in the context of any integration theory. This article is an attempt to rectify the omission. By building on the approach of historical institutionalism, whilst at the same time recognising its analytical deficiencies, a method of reading the EU and interpreting its human rights policies is promoted. Specifically, the article contends that an analysis based on the textual nature of the EU and the configuration of this text through ‘institutional narrative’ will enable a better understanding of the institutional logic behind the construction of human rights policy. An agenda for research and analysis is thus suggested that might map the development of human rights in the EU and predict the compass of future policy direction more effectively.     

Post‐Sovereignty and the European Legal Space

The political constitution of the European polity has become strained in recent years by insistent pressures on its institutional capacity to resolve social problems. The article examines the EU's polity crisis in the context of the development of a distinctive modern conception of secular constitutional authority, focused on the ideal of sovereign self‐determination. As the work of Neil MacCormick illustrates, the EU provides a radical challenge to the on‐going capacity of the concept of sovereignty to provide a framework to address problems of legitimacy. The article explores the nature of this challenge, its historical context and its consequences with reference to debates over the nature of constitutional pluralism. It sets out a path to the renewal of the European constitutional debate through a re‐consideration of secular constitutional authority and the necessity of its connection to the idea of sovereignty. The article seeks to re‐engage in the task of ‘questioning sovereignty’.     

The Lisbon Judgment of the German Constitutional Court,the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

The ECJ has long asserted its Kompetenz‐Kompetenz (the question of who has the authority to decide where the borders of EU authority end) based on the Union treaties which have always defined its role as the final interpreter of EU law. Yet, no national constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the German Constitutional Court (FCC) has asserted its own jurisdiction of the final resort' to review future EU treaty changes and transfers of powers to the EU on two grounds: (i) ultra vires review, and (ii) identity review. The FCC justifies its claim to constitutional review with reference to its role as guardian of the national constitution whose requirements will constrain the integration process as a standing proviso and limitation on all transfers of national power to the EU for as long as the EU has not acquired the indispensable core of sovereignty, i.e. autochthonous law‐making under its own sovereign powers and constitution, and instead continues to derive its own power from the Member States under the principle of conferral. Formally therefore, at least until such time, the problem of Kompetenz‐Kompetenz affords of no solution. It can only be ‘managed’, which requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate jurisdiction to decide the limits of the EU's powers—a prerogative which, if asserted by both parties without political sensitivity, would inevitably result in a constitutional crisis. The fact that no such crisis has occurred, illustrates the astute political acumen of both the FCC and the ECJ.     

Civic Citizenship Reintroduced? The Long‐Term Residence Directive as a Post‐National Form of Membership

This paper presents how the Long‐Term Residence Directive has created a status that can be considered as a subsidiary form of EU citizenship. This key revolution has been operated by EU law since this status escapes direct control by Member States that are obliged to grant EU long‐term residence and the rights associated with it to third‐country nationals (TCNs) fulfilling the conditions in the Directive. This represents a fundamental development and may be distinguished from the acquisition by TCNs of national/EU citizenship, which constitutes a prerogative of State sovereignty. Indeed, the recent cases by the Court of Justice analysed below confirm this truly post‐national form of membership and have profound implications for the relationship between borders, territory and population in the EU.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

Self‐Determination in the Constitutional Future of the EU

This article analyses three prominent proposals for the functional and political transformation of the EU from a constitutional perspective. It argues that existing EU reform proposals, to varying degrees, entrench rather than reverse the challenges to individual and political self‐determination brought about by the EU's response to its Euro crisis. As the article will conclude, challenging ‘authoritarian liberalism' in an EU context may require the development of a constitutional structure for the Union able to contest, rather than set in stone, the EU's existing economic and political goals.     

Unpopular Sovereignty?

Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. It was supposedly manifest in the power to constitute, control and dismantle governments. Important strands of contemporary constitutional theory, notably legal constitutionalism and deliberative democracy, have taken leave of this tradition. They have severed the connection between sovereignty and action. What remains of popular sovereignty is fundamental rights and values, or dispersed networks of deliberation. This is based on the the idea that the place of power is ‘empty’ and legitimised on the principle of including ‘All-Affected-Interests’. The very concept of sovereignty thus becomes unpopular. This contribution aims to re-establish the link between popular sovereignty and action by examining sovereignty's emancipatory telos, its majoritarian mode of operation and its dependence on political citizenship.     

The contribution of EU public procurement law to corporate social responsibility

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.     

A Mediator on the World Stage?—How the EU's Commitment in Foreign Affairs is Portrayed by New Zealand and Australian Media

Abstract: ‘European identity’ is as much a contested concept as is the role of the European Union in foreign affairs. This article combines the two concepts and introduces a third variable, ‘the Other’, in order to address the following questions: How do non‐Europeans perceive the EU on the world stage? Is a tentative identity as a mediator in foreign affairs conveyed in the EU's conduct of foreign policy? Analysing 10 newspapers, 4 television bulletins, and 830 public surveys from Australia and New Zealand in the first half of 2004, this article argues that the EU's efforts to further democracy and peace are often marginalised in Australian and New Zealand perceptions. Nevertheless, subtle traces of perceptions of the EU as a potent global actor promoting human rights and environmental sustainability and challenging unilateral US policy courses were detected.     

阐释一个真实的中国宪法世界——以“宪法常识”为核心

阐释一个真实的中国宪法世界,不仅具有知识累积的意义,而且具有改进中国宪法制度的工具性价值。依托中国宪法常识,可以认为中国宪法的真实性在于：在宪法性质上乃为去政治化的政治法;在宪法权力结构上乃为以政治主权为主导的二元权力架构;在宪法权利的保障与实现方式上乃为以阶层宪法权利为核心、以政治主权为主导的政治化保障与实现方式;在宪法监督制度上乃为政治主权者基于使命——规律型代表而存在的垄断性与政治化的宪法监督体制。     

Levelling the EU participatory playing field: A legal and policy analysis of the Commission's public consultations in light of the principle of political equality

The EU Commission has a long tradition of consulting interested parties when formulating its policies. While the rationale, format and legal basis relied upon by the Commission when holding public consultations have changed over time, its systematic inability to make those consultations equally accessible to all affected parties has remained constant. This article discusses the extent to which such a consultation practice conflicts with the principle of political equality, as enshrined in Article 9 TEU. Given the Commission's unrestrained discretion regarding who, how and when to consult and the absence of corresponding participatory rights, it argues that the EU can no longer presume that all stakeholders—especially citizens and civil society groups—enjoy equal access to EU institutions. Rather, under a proposed substantive reading of the principle of political equality, it contends that EU institutions are procedurally required to ensure that everyone will effectively be given equal opportunities of access to the policy process. Only a series of structural, power‐shifting reforms—some of which are proposed in this article—may enable participation to become an autonomous form of legitimation of the Union.