Triangular Diplomacy among the United States, the European Union, and the Russian Federation: Responses to the Crisis in Ukraine 1st Edition Vicki L. Birchfield
The Constitutional Theory of the Federation and the European Union
The Constitutional Theory of the Federation and the European Union
SIGNE REHLING LARSEN
is a Fellow by Examination in Law at Magdalen College at the University of Oxford
3
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
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For Hjalte
Preface
This book is concerned with the constitutional theory of federations, in general, and the European Union (EU), in particular. It aims to show that the federation is a discrete political form on a par with, though distinct from, the other two forms of political association of modernity, namely the empire and the state. The federation is a political union of states founded on an interstate agreement of a constitutional nature, a federal compact, that does not absorb the Member States into a new state. The book further maintains that the constitutional nature of the EU, shrouded with mystery in the literature, is that of a federation. The federal constitutional nature of the EU has not been adequately appreciated because the scholarly debate on both federalism and European integration is dominated by the constitutional imagination of the state and the idea of sovereignty. This book is an attempt to break away from the state-centric world view, but crucially without leaving the world of political jurisprudence. The federation is a genuine form of political association, with an outside and an inside, and it is therefore not a form of ‘cosmopolitan’ constitutionalism.
This book has been written between three cities: London, Copenhagen, and Florence. In each place, there are a number of people I would like to thank. The book is based on my doctoral dissertation from the LSE, which I defended in September 2018. I would like to express my gratitude to Martin Loughlin and Mike Wilkinson, who were the best supervisors and mentors I could possibly have hoped for. Their distinct approaches to scholarly work in general, and to constitutional theory in particular, have been immensely influential for this book. I would also like to thank a number of people at the LSE Law Department who were kind enough to read parts of my dissertation and provide insightful comments during my doctorate: Damian Chalmers, Jan Komárek, Tom Pool, and Floris de Witte. Finally, I would like to extend my gratitude to my two examiners, Jo Murkens and Alexander Somek, whose perceptive remarks and critique have informed the revision of the dissertation into a monograph.
I finished my dissertation during a visit to iCourts, University of Copenhagen. I would like to thank iCourts in general and Mikael Rask Madsen and Jan Komárek (again) for providing a wonderful environment to round up the thesis. I would also like to thank Poul Kjær and the Department of Management, Politics and Philosophy at Copenhagen Business School for hosting me during the summer of 2019. It was in Copenhagen that I first met Kalypso Nicolaïdes, who I would like to thank for her perceptive reading of parts of the manuscript and for motivating me to write a book that could also speak to scholars beyond the discipline of law.
I hope I have succeeded in that. I would also like to thank the reviewers at Oxford University Press for their helpful suggestions and comments. The editorial team at the Oxford University Press, in particular Brianne Bellio, Jamie Berezin, and Iona Jacob together with the design team, deserve my gratitude for all their support and hard work in making this book a reality.
I finished the manuscript during a Max Weber Fellowship at the European University Institute in Florence that was in part spent in Copenhagen because of the outbreak of the Covid-19 pandemic. Nevertheless, both before and during this crisis, colleagues at the EUI were immensely helpful and supportive. I would like to thank Jorge Díaz Ceballos, Anca Cretu, Paul Dermine, Gábor Halmai, and Michał Ziółkowski for reading and commenting on parts of the manuscript. Bob Roth was an excellent editorial assistant and Alyson Price and Jen Moore provided invaluable help with the language. Needless to say, all mistakes in the book are mine entirely.
Last but not least, I would like to thank my parents, Maria and Øjvind, for their support over these last few years when I started an academic career and became a parent at the same time. I dedicate this book to my husband, Hjalte, who means the world to me.
Table of Cases
THE COURT OF JUSTICE OF THE EUROPEAN UNION
Case C-26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1,. . . . . . . .11, 33–34, 73
Case C-6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585, .
11, 21, 73, 174
Joined cases Case C-90/63 and Case C-91/63 Commission of the European Economic Community v Grand Duchy of Luxembourg and Kingdom of Belgium [1964] ECR 625, 68n.107
Case C-33/67 Dietrich Kurrer v Council of the European Communities [1968] ECR 127, . .
Case C-11/70 Internationale Handelsgesellschaft v Einfuhrund Vorratsstellefür Getreideund Futtermittel [1970] ECR 1125,
98n.113
39–40
Case C-22/70 Commission of the European Communities v Council of the European Communities [1971] ECR 263, 102n.150, 110n.26
Joined cases Case C-142 and Case C-143/80 Amministrazionedelle Finanze dello Stato v Essevi SpA and Carlo Salengo[1981] ECR 1413,
68n.107
Case C-314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199, . . . . . . . 39–40n.168
Case C-38/89 Ministère public v Guy Blanguernon[1990] ECR I3, 68n.107
Case C-57/65 Alfons Lütticke GmbH v Hauptzollamt Sarrelouis [1996] ECR Spec Ed 205, 79–80n.13
Case C-546/07 Commission v Germany [2010] ECR I-00439,. .
Case C-399/09 Marie Landtová v Česká správa socialního zabezpečení [2011] OJ C 232/6,
31n.119
171–72n.104
Case C-434/11 Corpul Naţional al Poliţiştilor [2011] ECLI:EU:C:2011:830, 127, 175–76
Case C-134/12 Corpul Naţional al Poliţiştilor[2012] ECLI:EU:C:2012:288, 127, 175–76
Case C-370/12 Thomas Pringle v Government of Ireland and Others [2012]
ECLI:EU:C:2012:756.,
C-286/12 Commission v Hungary [2012] ECLI:EU:C:2012:687,
Case C-128/12 Sindicato dos Bancários do Norte and Others [2013]
.180–81
180–81n.154, 185
ECLI:EU:C:2013:149, 175–76
Case C-264/12 Sindicato Nacional dos Profissionais de Seguros e Afins [2014]
ECLI:EU:C:2014:2036, 175–76
Case C-62/14 Gauweiler and Others [2015]
ECLI:EU:C:2015:400,.
9–10n.27, 180–87, 189
Joined Cases Case C-8/15 P and Case C-10/15 P Ledra Advertising v Commission and ECB [2016] ECLI:EU:C:2016:701, 177n.136
Case C-441/14 Dansk Industri (DI), acting on behalf of Ajos A/S v Estate of Karsten Eigil Rasmussen [2016] ECLI:EU:C:2016:278, 88–89n.67, 89–90n.71, 171–72n.104
Case C-258/14 Florescu and Others [2017] ECLI:EU:C:2017:448, .
Case C-64/16 Associação Sindical Dos Juízes Portugueses [2018]
175–76n.126
ECLI:EU:C:2018:117, 122
Case C-216/18 PPU Minister For Justice And Equality [2018] ECLI:EU:C:2018:586, 122
Case C-493/17 Weiss and Others [2018] ECLI:EU:C:2018:1000,
9–10n.27, 162, 185–87, 189, 190, 199
T-680/13 Chrysostomides, K. & Co. and Others v Council and Others [2018] ECLI:EU:T:2018:48, 167
Case C-597/18 P Council v K. Chrysostomides & Co. and Others Case (pending), 167 Opinion of Mr Advocate General Poiares Maduro delivered on 16 January 2008, Case C-402/05 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR 2008 I-06351, 28–29
THE GERMAN CONSTITUTIONAL COURT
‘Alfons Lütticke GmbH’ – Judgement of 9 June 1971 –2 BvR 225/69, 79–80n.13
‘EEC Regulations Constitutionality’– Judgement of 18 October 1967 – 1 BvR 248/63 and 216/6, 79–80
‘European Arrest Warrant’ – BVerfG, Order of the Second Senate of 15 December 2015 - 2 BvR 2735/14,
171–72n.104
‘Honeywell’ – BVerfG, Order of the Second Senate of 06 July 2010 - 2 BvR 2661/06, 184–85n.169
‘Lisbon Ruling’ – BVerfG, Judgment of the Second Senate of 30 June 2009 - 2 BvE 2/08, 87–88n.62, 161n.52, 174n.119, 184–85n.169
‘Maastricht Ruling’ – 2 BvR 2134/92 and 2159/92, 12 October 1993, Manfred Brunner and Others v The European Union Treaty [1994] 1 CMLR 57,
‘OMT case’ – BVerfG, Order of the Second Senate of 14 January 2014 - 2
42, 174n.119
BvR 2728/13, 183–86
‘Solange I’ – BverfGE, 37, 291, 29 May 1974, 174n.119
‘Solange II’ – BverfGE, 73, 339, 22 October 1986,
‘Weiss’ – BVerfG, Judgment of the Second Senate of 05 May 2020 - 2 BvR 859/15,
174n.119
9–10n.27, 162, 185–87, 189, 190, 199
THE DANISH SUPREME COURT
‘Ajos’: Dansk Industri (DI) acting for Ajos A/S v The estate left by A– Judgement of 6 December 2016, Case 15/2014, 71, 88–90, 101n.104
‘Tvind’: Den Selvejende Institution Friskolen i Veddinge Bakker mod Undervisningsministeriet –Judgement of 19 February 1999, Case 295/1998, 89–90
THE UK SUPREME COURT
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, 26n.77, 91
THE US SUPREME COURT
Cherokee Nation v Georgia, 30 U.S. 1 (1831), 115–16, 158 Dred Scott v Sandford, 60 U.S. 393 (1856),
115 Edwards v California 314 U.S. 160 (1941),
31–32n.124, 70 Marbury v Madison,5 U.S. 137 (1803),
Terminiello v City of Chicago, 337 U.S. 1 (1949),
157n.33
145 Worcester v Georgia, 31 U.S. 515 (1832), 115–16
Table of Legislation
EU PRIMARY LEGISLATION
The Consolidated version of the Treaty on European Union [2016]
The Consolidated version of the Treaty on the Functioning of the European Union [2016] OJ C202/47,. . . . . 21, 32–33, 39–40, 80n.19, 101n.138, 132, 163, 164, 165, 166–67, 169–70, 183n.63, 184–85, 186
Protocol (no 4) On the Statute of the European System of Central Banks and of the European Central Bank [2016] OJ C202/230 (ESCB Statute), 183n.163
Charter of Fundamental Rights of the European Union [2012]
OJ C326/391, . . . . . . . . . . . .175–76, 199
EU SECONDARY LEGISLATION
Regulation 472/2013/EU of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability [2013]
OJ L140/1, 168–69
Regulation 473/2013/EU of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the
Member States in the euro area [2013] OJ L140/11, . . . . . . . . . . . . . . . . . . . . 169
Regulation 1173/2011/EU of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area [2011] OJ L 306/1, .
170
Regulation 1174/2011/EU of the European Parliament and of the Council of 16 November 2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area [2011] OJ L306/8, . . . . . . 170
Regulation 1176/2011/EU of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances [2011] OJ L306/25, . . . . . . . . . . . . . . . 168–69
European Council Decision 2011/199/EU of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro [2011] OJ L91/1, 167
Regulation 407/2010/EU of 11 May 2010 establishing a European Financial Stabilisation Mechanism [2010] OJ L118/1, . . . . . . . . . . . . . . . . . . . . . 168–69
OTHER EUROPEAN TREATIES
Treaty Establishing the European Stability Mechanism (ESM Treaty) (2012), . . . . . . 165–68, 170–71
Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (Fiscal Compact) (2012), . . . . . . . . . 165–66, 168–69, 199
Draft Treaty establishing a Constitution for Europe [2003] OJ C169/1, 23
GERMANY
German Basic Law, 23 May 1949 21–22, 28–29, 87–88, 186
The Weimar Constitution (1919), .
21–22, 31–32n.123, 45, 154n.21
Final Act of the Congress of Vienna (Wiener Schlussakte) (1820),
THE UNITED STATES
The Constitution of the United States (1787), 24–26, 28–30, 56, 57, 64–65, 100–1, 136–37, 141, 146, 157, 159
The Articles of Confederation (1777), 24–26, 49–50, 53–54, 69–70
Northwest Ordinances of 1787 and 1789,
Land Ordinance of 1784 and 1785,
127, 153
The Constitution of the German Confederation (Deutsche Bundesakte) (1815), 26n.93
.128–29, 132
.128–29, 132
THE SOVIET UNION
1924 Constitution of the USSR, Constitution of the Union of Socialist Soviet Republics, 119–20
List of Abbreviations
BVerfG Bundesverfassungsgericht
ECB European Central Bank
ECJ European Court of Justice
ECSC European Coal and Steal Community
EDC European Defence Community
EEC European Economic Community
EFSF European Financial Stability Facility
EFSM European Financial Stabilisation Mechanism
EMU Economic and Monetary Union of the European Union
EPC European Political Community
EU European Union
EUCFR The Charter of Fundamental Rights of the European Union
EURATOM European Atomic Energy Community
ESCB European System of Central Banks
ESM European Stability Mechanism
GATT General Agreement on Tariffs and Trade
GG Grundgesetz für die Bundesrepublik Deutschland (German Basic Law)
IMF International Monetary Fund
MoU Memorandum of understanding
NAFTA North American Free Trade Agreement
NATO North Atlantic Treaty Organization
OEEC Organisation for European Economic Co-operation
OMT Outright Monetary Transactions Program
PSPP Public Sector Purchase Programme
QE quantitative easing
SEA Single European Act
WTO World Trade Organization
Introduction
The legal and political nature of the EU remains an enigma for academics and the general public alike. For many years, the latter could happily ignore the question of what the EU really is, yet the multiple crises characterizing the last decade of European history—the Eurozone crisis, the refugee crisis, the rise of authoritarianism in Poland and Hungary, and Brexit—have prompted a new interest in the EU. For example, one of the most googled questions in the UK after the result of the Brexit referendum was announced in the early hours of 24 June 2016 was: ‘What is the EU?’1 Within academia, the constitutional nature of the EU has been debated for decades without ever solving the mystery, and, for some time, the tacit consensus was to avoid the issue altogether by declaring the EU to be unique or ‘sui generis’. While the sui generis thesis might have been a viable position in times of relative stability, the government of the Eurozone crisis, significantly extending the powers of the executive branch of government at both Union and Member State level, and relying on governmental instruments of dubious legality forces us to confront the question: With what right are the citizens and states of Europe governed? To answer the fundamental questions raised by the last decade of European politics, it is necessary to address the question of the constitutional nature of the EU.
This book takes up the challenge of developing a constitutional theory for the EU. The point of departure, contrary to what is maintained by the sui generis thesis, is that from the perspective of constitutional theory the EU is neither unique nor unprecedented. The EU, this book maintains, is a union of states of a special kind, a federal union, or what this book calls a federation. That is, a political union of states founded on an interstate agreement of a constitutional nature, a federal compact, that does not absorb the Member States into a new state. The book argues, further, that the federation is a discrete form of political association on a par with, though distinct from, the other political forms of modernity, that is, the empire and the state. As such, the EU is not unique in world history. Multiple manifestations of this political form predate the EU, most importantly the antebellum United States, the nineteenth-century German Confederation, and the Swiss Confederation before the constitution of a federal state in 1848.
To be sure, it is not submitted that there are no unique aspects of the EU’s constitution or its law and politics, all actual political associations are unique in one
1 Brian Fung, ‘Britons are frantically Googling what the EU is after voting to leave it’ Independent (London, 24 June 2016).
way or another, but these singular features do not make the EU any less a federation. Germany, France, and the UK all have unique constitutional attributes and are constitutionally very different from one another, but they are no less states because of that. The same applies to federations, including the EU. A study of the constitutional nature of the EU must abandon the sui generis thesis and start to think of the EU in the context of what it is comparable to in constitutional terms, namely, federations, that is, federal unions of states.
The political form of the federation, however, has largely been forgotten. The encounter with the EU, perhaps the only true federation of the contemporary world, will therefore ‘naturally’ lead us to think that it is unique Nevertheless, the description of the EU as sui generis is problematic not only because of its historical and theoretical inaccuracy. More importantly, by insisting on the EU’s uniqueness, the sui generis thesis constitutes only a superficial break with the categories of the state that continue to dominate the constitutional debates on federalism and demand that all federal polities fall within one of two categories: either a confederation of sovereign states (Staatenbund) or a sovereign federal state (Bundesstaat). In this way, it perpetuates the political theory of the state that has hindered the development of a genuine constitutional theory of the federation as a discrete political form.
The political form of the state has been so successful in dominating how we conceive of political life in general, and political and public law theory in particular, that it has become difficult for us to imagine any other form of political association. The state is a historical type, and yet, more often than not, it is treated as the universal or essential form of political association. This book demonstrates the limitations of the theory of the state and its application by providing a constitutional theory of the federation as a discrete political form and by showing how the legal and political nature of the EU can be explained by it.
I. Federalism and the EU
This book is far from the first study of the EU in light of federalism. Multiple volumes have been dedicated to the subject, exploring in detail questions and problems relating to the (optimal) division of powers between different levels of government in federal and multi-layered polities, the legal and regulatory instruments of federal- and multi-level governance, and the legitimacy of federalism in general and the EU in particular.2 Though the literature on federalism and the EU
2 See especially Kalypso Nicolaïdes and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001); Anand Menon and Martin A Schain (eds), Comparative Federalism: The European Union and the United States in Comparative Perspective (OUP 2006).
is rich in breadth and depth, the questions of constitutional theory remain underdeveloped thanks to the conceptual framework the literature overwhelmingly takes as its point of departure.
The literature on federalism and the EU is characterized by two different approaches, neither of which allows for the development of a genuine constitutional theory of the federation as a discrete form of political association. Most of the literature sets out with a flawed ‘statist’ understanding of a federation as a federal state (Bundesstaat) that it juxtaposes with a confederation of states (Staatenbund). On this basis, the general argument is that the EU transcends the ‘federal-confederal’ axis, it is neither a federal state nor a confederation of states, and for that reason it is a sui generis association characterized by its own unique brand of federalism.3 The EU is in this way understood as an entity that does not conform to the political form of the state,4 but the literature does not provide a genuine constitutional theory that can account for this. It therefore characterizes the EU as ‘quasi-federal’,5 an ‘incomplete federation’,6 a ‘federation in the making’,7 a ‘postmodern confederation’,8 or simply a ‘unique form of union the like of which we have never seen before’.9
Despite its attempts to go beyond the theory of the state, this literature manages only a superficial break because, above all, it continues to think of the foundations of public authority based on the theory of the state: either one federal state or a confederation of several states. This book, in contrast, develops a genuine constitutional theory of the federation as a discrete political form that can answer the question of the foundations of authority in the EU and account for its constitutional nature beyond the distinction between ‘federal’ and ‘confederal’.
3 Joseph HH Weiler, ‘Federalism without Constitutionalism: Europe’s Sonderweg’ in Kalypso Nicolaïdes and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001); Vivien Schmidt, ‘Federalism and State Governance in the European Union and the United States: An Institutional Perspective’ in Kalypso Nicolaïdes and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001); Anand Menon and Martin A Schain, ‘Introduction’ in Anand Menon and Martin A Schain (eds), Comparative Federalism: The European Union and the United States in Comparative Perspective (OUP 2006).
4 A few scholars employ a less rigorous definition of the federal state and present the argument that the EU is ‘a species of a federal state’, see David McKay, Federalism and European Union: A Political Economy Perspective (OUP 1999) 35.
5 Guy Peters, ‘Federalism and Public Administration: The United States and the European Union’ in Anand Menon and Martin A Schain (eds), Comparative Federalism: The European Union and the United States in Comparative Perspective (OUP 2006).
6 John Erik Fossum and Markus Jachtenfuchs, ‘Federal Challenges and Challenges to Federalism. Insights from the EU and Federal States’ (2017) 24 Journal of European Public Policy 470.
7 Kalypso Nicolaïdes and Robert Howse, ‘Introduction’ in Kalypso Nicolaïdes and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001) 8.
8 Daniel J Elazar, ‘The United States and the European Union: Models for Their Epochs’ in Kalypso Nicolaïdes and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001) 42.
9 Michael Burgess, Federalism and European Union: The Building of Europe, 1950–2000 (Routledge 2000) 42.
Another part of the literature is more concerned with federalism understood as a set of principles for the exercise of dispersed or decentralized governmental powers in and beyond the state. Within this literature, the questions of the foundations of authority and the legal and political nature of the EU are de-emphasized.10 In a similar manner to the literature on multi-level governance,11 the focus is on the legal and regulatory characteristics of federal governance, its institutional dynamics, and its positive or normative legitimacy.12 Instead of asking about the foundations of authority, this literature is concerned with the question of whether EU law and government can be justified with reference to a set of normative criteria such as ‘good governance’.13 The substitution of the question of political right14 with a normative approach of moral justification characterizes most legal and political theories of European integration and EU law.15
In contrast, this book does not provide a normative appraisal of the EU. The book does not aim to answer the questions of whether the federation is a desirable form of political association, whether the EU meets certain normative benchmarks, or whether it should or could be reformed in order to do so. Instead, the book is an exercise in political jurisprudence16 and it is concerned with ‘constitutional imagination’.17 Constitutions influence how we understand the foundations of public power and the political worlds we inhabit. As such they have a ‘world making capacity’.18 This book explores the constitutional imagination of the federation and of
10 Alberta Sbragia, ‘The United States and the European Union: Comparing Two Sui Generis Systems’ in Anand Menon and Martin A Schain (eds), Comparative Federalism: The European Union and the United States in Comparative Perspective (OUP 2006).
11 Gary Marks, Liesbet Hooghe, and Kermit Blank, ‘European Integration from the 1980s: State‐Centric v. Multi‐level Governance’ (1996) 34 Journal of Common Market Studies 341; Markus Jachtenfuchs, ‘The Governance Approach to European Integration’ (2001) 39 Journal of Common Market Studies 245.
12 Daniel R Kelemen, The Rules of Federalism: Institutions and Regulatory Politics in the EU and Beyond (Harvard University Press 2004); Fritz W Scharpf, ‘Democratic Legitimacy Under Conditions of Regulatory Competition: Why Europe Differs from the United States’ in Kalypso Nicolaïdes and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001); Nicole Bolleyer, Intergovernmental Cooperation: Rational Choices in Federal Systems and Beyond (OUP 2009); Marc Landy and Steven M Teles, ‘Beyond Devolution: From Subsidiarity to Mutuality’ (OUP 2001).
13 Christian Joerges and Renaud Dehousse, Good Governance in Europe’s Integrated Market (OUP 2002).
14 Martin Loughlin, Foundations of Public Law (OUP 2012) 1–13.
15 See, for example, Richard P Bellamy, A Republican Europe of States: Cosmopolitanism, Intergovernmentalism and Democracy in the EU (CUP 2019); Jürgen Habermas, The Crisis of the European Union—A Response (Polity Press 2012); Erik Oddvar Eriksen and John Erik Fossum, ‘Europe in Search of Legitimacy: Strategies of Legitimation Assessed’ (2004) 25 International Political Science Review 435; Andrew Moravcsik, ‘Federalism in the European Union: Rhetoric and Reality’ in Kalypso Nicolaïdes and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001); Giandomenico Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4 European Law Journal 5; Andreas Føllesdal and Simon Hix, ‘Why There Is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44 Journal of Common Market Studies 533.
16 Martin Loughlin, Political Jurisprudence (OUP 2017).
17 Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78 The Modern Law Review 1.
18 ibid.
the EU. It aims to understand with reference to what principles and ideas authority is claimed and public power is exercised in the federation in general and in the EU in particular. It provides an analysis of the principles and types of authority that distinguish the federation from other forms of political association. The aim is to arrive at a coherent interpretation of the federation as a discrete political form and compare it with the EU. In this way, the book is analytical rather than normative.
II. The Constitutional Theory of the Federation
This book develops a constitutional theory of the federation in order to understand the foundations of authority in the EU. The constitutional theory of the federation, however, is under-researched and for that reason, the book is not merely an exercise in ‘applying’ a pre-given theory to the case of the EU. The great bulk of academic literature on federalism treats the federation as a species of the state. For that reason, it is concerned with the governmental structure of the federal state rather than the constitutional theory and public law of the federation as a union of states.19 An important exception is Olivier Beaud’s Théorie de la fédération, which is dedicated exclusively to the development of a constitutional theory of the federation as a discrete legal and political form.20 Though Théorie de la fédération is inspired by the problem of the constitutional nature of the EU, Beaud does not apply his theory to the EU in any systematic manner21 and the book ends on the following note: ‘We see that there is still ample material for another book, just as there is a need for another to answer the inaugural question of this work: is the European Union a federation?’22 This book answers that question in the affirmative.
Notwithstanding the significant contributions of Théorie de la fédération, the constitutional theory of the federation remains underdeveloped. Important constitutional questions such as those relating to emergency politics, constitutional guardianship, and constitutional identity have been touched upon only to a very limited degree by previous scholars of the theory of the federation. In order to answer the question initially raised by Beaud, this book therefore investigates underexplored aspects of the constitutional theory of the federation. The book aims to show both how the theory of the federation can provide an answer to the
19 For an overview of the classical literature see Michael Burgess, In Search of the Federal Spirit: New Theoretical and Empirical Perspectives in Comparative Federalism (OUP 2012); Michael Burgess and Alain-G Gagnon (eds), Comparative Federalism and Federation (Harvester Wheatsheaf 1993); Arthur Benz and Jörg Broschek, Federal Dynamics Continuity, Change, and the Varieties of Federalism (OUP 2013).
20 Olivier Beaud, Théorie de la fédération (Presses universitaires de France 2007) [Theory of the Federation].
21 See, however, Olivier Beaud, ‘Histoire. Fédération, l’Europe écrit ton nom’ Libération (Paris, 25 January 1995).
22 Beaud (n 20) 425, my translation, italics added.
question of the constitutional nature of the EU and, at the same time, how the EU can contribute to the development of the theory of the federation. Through a comparison of the constitutional praxis and history of the German Confederation, the antebellum United States and the EU, the book develops under-theorized aspects of the theory of the federation. There is thus a certain deliberate circularity to the methodology employed: the theory of the federation sheds light on the EU, and the EU provides an important case study for the theory of the federation. In this way, the book tells two interwoven tales. One is about the constitutional nature of the EU and the history of European integration. The other is about the federation as a discrete political form characterized by its own virtues and vices. At the heart of both of these tales is an attempt to break free from the state-centric world view that has made it impossible to understand the nature of the federation as a discrete political form and, as a consequence of that, the constitutional nature of the EU.
A few scholars have initiated the work of investigating the foundations of authority of the EU on the basis of a theory of the federation as a discrete form of political association. This book is not a critique of any of these scholars, but rather a complement to their work. Robert Schütze has demonstrated that EU constitutional law is a concrete manifestation of a federation and he has written extensively on the legal transformation of the EU in comparison to the early history of the United States, with a special focus on the development of the internal market as a federal market.23 His interest in the subject, however, is more that of a constitutional lawyer than a constitutional theorist, and he does not develop a detailed constitutional theory of the federation. Kalypso Nicolaïdes and Sergio Fabbrinni have also suggested that we should conceive of the EU as a federal union rather than a federal state.24 Nevertheless, they are more interested in (normative) questions of legitimacy and institutional design than the questions of constitutional theory. In Union of States: The Theory and Practice of Confederations, Murray Forsyth presents an overview of the history of federal political thought, develops the idea of the economic union as a federal ‘subspecies’, and demonstrates how the political theory of the federation applies to the then European Economic Community (EEC).25 Nevertheless, the discussion of the EEC is limited to one chapter, and as
23 Robert Schütze, European Constitutional Law (CUP 2015); Robert Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (OUP 2013); Robert Schütze, From International to Federal Market: The Changing Structure of European Law (OUP 2017).
24 Kalypso Nicolaïdes, ‘Constitutionalizing the Federal Vision?’ in Anand Menon and Martin A Schain (eds), Comparative Federalism: The European Union and the United States in Comparative Perspective (OUP 2006); Kalypso Nicolaïdes, ‘Conclusion: The Federal Vision Beyond the Federal State’ in Kalypso Nicolaïdes and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001); Sergio Fabbrinni, Which European Union: Europe after the Eurozone Crisis (CUP 2015); Sergio Fabbrini, ‘Intergovernmentalism in the European Union. A Comparative Federalism Perspective’ (2017) 24 Journal of European Public Policy 580.
25 Murray Forsyth, Union of States: The Theory and Practice of Confederations (Leicester University Press 1981).
such it does not provide a comprehensive account of the EEC as a federation. In his magnum opus Unionsbürger: Europas föderale Bürgerrecht in vergleichender Sicht, Christoph Schönberger provides a comprehensive comparative study of EU citizenship based on the principles of federal citizenship law and as such it sheds light on a core pillar of the constitutional theory of the federation and the EU as a manifestation thereof.26 The focus is more or less exclusively on federal citizenship, and for that reason Schönberger’s work does not exhaust the need for the development of a general constitutional theory of the EU as a federation.
III. The Structure of the Book
The book is divided into five chapters. Chapter 1 is concerned with the constitutional nature of the EU and the federation as a discrete political form. The chapter shows how the federation can provide an answer to the enigma of the legal and political nature of the EU, namely, that it does not fit the theory of the state because it cannot be explained either by public law or by international law. The chapter argues that the legal and political form of the EU is that of a federation: a discrete legal and political form on a par with, though distinct from, the two other political forms of modernity, the state and the empire. It is maintained that while the federation is founded by a compact or treaty between the federating states, it does not belong to the world of international law because the federation leads to a constitutional change in the contracting states by constituting among them a new political and public law entity, the Union, through which they henceforth govern themselves as ‘Member States’. A federation is characterized both by the birth of a new union and the transformation of the contracting states. It is further argued that the federation is incompatible with the concept of sovereignty and for that reason a genuine constitutional theory of the federation as a discrete political form has to be developed as a public law form without recourse to the concept of sovereignty.
Following the development of the general principles of the constitutional theory of the federation, the book goes on to discuss the origins and telos of the federation as a political form in general and the EU in particular. Chapter 2 maintains that states decide to come together in a federation when they, for one reason or another, are incapable of maintaining their own political existence and autonomy. The medieval and early modern federations were constituted between smaller states and free cities in order to protect or liberate themselves from an empire by fusing their military power. They were defence federations. With the coming of
26 Christoph Schönberger, Unionsbürger: Europas föderales Bürgerrecht in vergleichender Sicht (Mohr Siebeck 2005) [Union Citizen: Europe’s Federal Citizenship-law in Comparative Perspective]. See also Christoph Schönberger, ‘Die Europäische Union als Bund’ (2004) 129 Archiv des öffentlichen Rechts 81 [The European Union as a Federation].
the industrial revolution, political economy and the construction of larger internal markets became crucial if states wanted to maintain their political autonomy. One way this was achieved was through empire (internal market creation by domination), another was through federation (internal market creation through free and equal contract). Federations that have economic government/welfare, and importantly the creation of an internal market, as their primary aim are termed economic federations or welfare federations.
European integration is a response to both the decline of the European maritime empires and the internal markets they provided for the European imperial metropoles, and to the legal and political collapse of the European states in the interwar period dominated by the experience of fascism and Nazism. In the new world dominated not by Europe, but by the great powers of the Cold War, European and American elites alike agreed that a European federation was the only way to stabilize Western Europe, and the Western European states, from the multiple threats to their political existence and autonomy. European integration is thus a response to the decline of empire and state failure. It is born out necessity in order for the Western European states to maintain themselves politically. The chapter shows that the post-WWII period is characterized by attempts to constitute both a defence federation and an economic federation in Western Europe but that only the latter was successful. The chapter concludes that the EU remains an economic federation with defence as a subsidiary aim.
Chapter 3 is concerned with the foundations and principles for the exercise of public power in the federation, that is, the principles of federal public law. The chapter maintains that the federation has a unique structure of public law that differs from that of the state. In contrast to the state, the key concept of the public law of the federation is not sovereignty. The federation is a union of states, a double political existence, with a dual governmental apparatus composed of the Union institutions and the governmental institutions of the Member States. Neither of these governmental structures fits the theory of state. The Union institutional framework is not a new omni-competent ‘super-state’. It is characterized by the principles of teleology and specialization. That is, the Union has limited powers to achieve the aims specified in the federal compact. Nor are the Member States of the federation states in the ‘classical sense’. Being a Member State entails a process of state transformation. The chapter shows that the ‘constraints’ of member-statehood are not purely external to the Member States and imposed by Union law. Rather, the constitutional orders of the Member States and the constitutional order of the Union are intertwined, albeit in different ways. The chapter shows that the EU Member States are characterized by different ‘varieties of constitutionalism’ and for that reason they have internalized the demands of EU membership in different ways.
The federation is born out of the impotence or collapse of the state as a political form. Nevertheless, Chapter 4 argues, the federation is itself characterized by internal contradictions that constantly threaten its survival. The federation
is simultaneously committed to preserving the autonomy and diversity of its Member States and committed to constituting an ‘ever closer union’ between its peoples. The federal balance between these two contradictory ends can be maintained when there is relative constitutional homogeneity between the Member States. In the case of the EU, the constitutional homogeneity is that of ‘constrained democracy’. However, the Member States have internalized this constitutional identity to varying degrees. This means that the federal balance, known in the EU as ‘constitutional tolerance’, can in no way be taken for granted. In order to preserve the federal balance, federations tend to claim the right to intervene in the internal constitutional affairs of its Member States if they diverge significantly from the constitutional identity of the Union. Notwithstanding the importance of such interventions for the stability and survival of a federal union, such interventions, like the EU’s potential actions against the rise of ‘illiberal democracy’ in Poland and Hungary, are controversial because they threaten the political autonomy of its Member States.
Chapter 5 is concerned with the emergency government of the Eurozone. It is argued that the government of the Eurozone crisis can be understood according to the theories of constitutional defence and emergency government in the federation. The chapter maintains that the reason the government of the Eurozone crisis does not conform to the theory of the ‘state of exception’ is that the EU is a federation and not a state. The chapter first develops a theory of federal constitutional defence based primarily on the theory and praxis of the antebellum United States (the doctrine of states’ rights), on the one hand, and the nineteenth-century German Confederation (the theory of federal execution and federal intervention), on the other. Based on these theories of federal constitutional defence, the chapter analyses both ‘Euro-crisis law’ and the contestation of the emergency government of the Eurozone crisis by EU Member States.
Competing claims to constitutional defence can always be put forward in a federation in the name of the people as one or the people(s) as many; in the name of the ‘union of states’ or in the ‘union of states’ . Authority in a federation can be wielded legally, and ultimately extra-legally, in the name of the security of the individual Member States and for the wellbeing of their citizens, and in the name of the security of the Union and for the wellbeing of its citizens. With regard to the Eurozone crisis, the question of ultimate authority has been raised judicially by challenges to the European Court of Justice and the European Central Bank by the German Constitutional Court.27 The federal balance on which the EU, as all federal unions of states, relies is therefore under threat. Whether a nullification crisis can be avoided remains to be seen. Independently of how the battle of courts and
27 C-62/14 Gauweiler and Others [2015] ECLI:EU:C:2015:400; C-493/17 Weiss and Others [2018] ECLI:EU:C:2018:1000; BVerfG, Judgment of the Second Senate of 21 June 2016—2 BvR 2728/13; BVerfG, Judgment of the Second Senate of 05 May 2020—2 BvR 859/15.
central banks turns out, it is clear that the political autonomy of, especially, the deficit Member States from a more material perspective has been eroded. Emergency politics introduces a strong element of reason of state that de facto if not de jure erodes the political autonomy of its Member States by reducing them to administrative dependencies. For that reason, emergency government presents a threat to the survival of the federation as a political form and hence to the EU’s current constitutional character and the constitutional balance on which the Union relies.
1 Constitutional Nature
The debate on the constitutional nature of the EU and the foundation of its authority is long and there is still no consensus in the field. Authority has been contested with regard to the EU, and earlier the European Economic Community (EEC), ever since the European Court of Justice (ECJ) declared direct effect and supremacy of European law in Van Gend en Loos1 and Costa v E.N.E.L.2 What is contested are not so much the doctrines of supremacy and direct effect eo ipso but their foundations and hence their scope and the ultimate laws and institutions they are governed by and subjected to. The central tension in this debate is between the scholars who emphasize Member State sovereignty and those who emphasize the constitutional status of EU law.
Scholars who emphasize Member State sovereignty tend to understand the foundation of EU authority along the lines of public international law, arguing that the authority of EU law is rooted in national constitutions and that the Member States are the ‘masters of the treaties’.3 Within this field, most scholars would not dispute the primacy of EU law eo ipso but its source and hence its limitations The argument presented is that the foundation of EU law is an interstate agreement and the EU therefore—however complex—must be understood as a treaty organization governed by and subject to public international law. The EU, in this view, remains international and administrative rather than constitutional.4
Other scholars emphasize the supranational level of the governmental structure of the Union, arguing on the basis of the autonomy of the EU legal order, the development of EU fundamental rights legislation, the doctrine of implied powers, preemption, the fidelity principle, and EU citizenship that the EU must be understood as a constitutional order in its own right with an autonomous source of authority.5
1 Case C-26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1.
2 Case C-6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585.
3 Dieter Grimm, ‘Sovereignty in the European Union’ in Jeffrey Ellsworth and Johan Van der Walt (eds), Constitutional Sovereignty and Social Solidarity in Europe (Nomos 2015); Theodor Schilling, ‘The Autonomy of the Community Legal Order: An Analysis of Possible Foundations’ (1996) 37 Harvard International Law Journal 389.
4 Bruno De Witte, ‘The EU as an International Legal Experiment’ in Joseph HH Weiler and Gráinne De Búrca (eds), The Worlds of European Constitutionalism (CUP 2012); Dieter Grimm, ‘Treaty or Constitution? The Legal Basis of the European Union after Maastricht’ in Erik Oddvar Eriksen, Agustín Menéndez, and John Erik Fossum (eds), Developing a Constitution for Europe (Routledge 2004); Peter L Lindseth, Power and Legitimacy Reconciling Europe and the Nation-State (OUP 2011).
5 Ulrich Haltern and Joseph HH Weiler, ‘Constitutional or International? The Foundation of the Community Legal Order and the Question of Judicial Kompetenz-Kompetenz’, The European Courts
Most scholars reject the case for EU statehood,6 and argue instead that the EU is characterized by constitutional pluralism balancing the claims to authority of the EU with those of the Member States.7 Some scholars see the EU as epitomizing ‘post-national constitutionalism’8 and global trends of constitutionalism beyond the state.9 These scholars reject the foundational approach to authority in favour of a freestanding approach,10 stressing constitutionalism as a normative order that constitutes a shared ‘grammar of legitimacy’.11 In this view, the EU is merely a stepping stone to a global order governed by the Universalist principles inherent in constitutionalism. The most influential position within EU constitutional theory, however, cautions against the comparison of the EU with other manifestations of ‘governance beyond the state’ and highlights the unique position of the Union.12 In this view, the EU is a sui generis association characterized by a unique principle of constitutional tolerance that does not apply beyond the EU.13 That the EU is sui generis is, of course, another way of saying that its constitutional nature remains an enigma; that it is neither fish nor fowl.14
Contrary to the dominant position in the field, this book argues that the idea of the EU as sui generis—that is, that the legal and political form of the EU is unprecedented—is incorrect. Rather, the book maintains, the legal and political nature of the EU can be explained by the constitutional theory of the federation.
and National Courts—Doctrine and Jurisprudence (Hart Publishing 1998); Joseph HH Weiler, ‘In Defense of the Status Quo, Europe’s Constitutional Sonderweg’ in Joseph HH Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State (CUP 2003); Mattias Kumm, ‘Beyond Golf Clubs and the Judicialization of Politics: Why Europe Has a Constitution Properly so Called’ (2006) 54 The American Journal of Comparative Law 505; Ingolf Pernice, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 European Law Review 511; Armin von Bogdandy, ‘The Prospect of a European Republic; What European Citizens Are Voting On’ (2005) 42 Common Market Law Review 913.
6 See, however, G Federico Mancini, ‘Europe: The Case for Statehood’ (1998) 4 European Law Journal 14.
7 Neil MacCormick, ‘Beyond the Sovereign State’ (1993) 56 The Modern Law Review 1; Neil Walker, ‘Constitutional Pluralism Revisited’ (2016) 22 European Law Journal 333. See also Matej Avbelj and Jan Komárek, Constitutional Pluralism in the European Union and Beyond (Hart Publishing Limited 2012).
8 Neil Walker, ‘Postnational Constitutionalism and the Problem of Translation’ in Joseph HH Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State (CUP 2003).
9 Mattias Kumm, ‘How Does European Union Law Fit into the World of Public Law’ in Jürgen Neyer and Antje Wiener (eds), Political Theory of the European Union (OUP 2010).
10 Michael A Wilkinson, ‘Political Constitutionalism and the European Union’ (2013) 76 The Modern Law Review 191.
11 Daniel Halberstam, ‘Local, Global and Plural Constitutionalism’ in Joseph HH Weiler and Gráinne De Búrca (eds), The Worlds of European Constitutionalism (CUP 2012); Kumm (n 9).
12 Joseph HH Weiler, ‘Prologue: Global and Pluralist Constitutionalism—Some Doubts’ in Joseph HH Weiler and Gráinne De Búrca (eds), The Worlds of European Constitutionalism (CUP 2012); Kalypso Nicolaïdes and Robert Howse, ‘Legitimacy and Global Governance: Why Constitutionalizing the WTO Is a Step Too Far’ in Roger B Porter and others (eds), Efficiency, Equity and Legitimacy: The Multilateral Trading System and The Millennium (Brookings Institute Press 2001).
13 Weiler (n 12) 13.
14 James Bohman, ‘Reflexive Constitution-Making and Transnational Governance’ in Erik Oddvar Eriksen (ed), Making the European Polity: Reflexive Integration in the EU (Routledge 2005) 33.
The EU, this book argues, is a territorially bounded political association of a special kind, a federation, that is, a federal union of states. The book takes its point of departure in the fact that ‘people are organized into territorially-bounded units within which authoritative governing arrangements have been established. This is a distinctive way of being and acting in the world, the world of the political’.15 As such, this book is an exercise in ‘political jurisprudence’, albeit of a different form of political association than the state.
There is a long tradition of political jurisprudence concerned with the task of describing an autonomous legal and political form irreducible to the other main political forms of modernity, the state and the empire. This tradition of legal and political thought includes figures such as Althusius, Pufendorf, Madison, Hamilton, Calhoun, Webster, de Tocqueville, Waitz, Le Fur, and Seydel. This ‘federal canon’ of political thought—less read than the state-centric canon of Bodin, Hobbes, Locke, Rousseau, and Hegel—was born out of an attempt to understand political associations, historical or contemporaneous, that could not comfortably be understood on the basis of the theory of the state. The most important examples of such political associations are the Old Swiss Confederation (1291–1798), the Restored Swiss Confederation (1815–48), the United Provinces of the Netherlands (1579–1795), the German Confederation (1815–66), and the antebellum United States of America (1777–Civil War). In this book, I rely on works from the federal canon of legal and political thought and draw on important examples from the earlier federal unions of states, most extensively the German Confederation and the United States.
This book is especially indebted to four legal and political theorists: Olivier Beaud, Christoph Schönberger, Murray Forsyth, and Carl Schmitt.16 These scholars use different terms: fédération, Bund, confederation, union of states, and federal union.17 Nevertheless, they all describe the same phenomenon, namely, a political union of states founded on a constitutional compact. They have, with utmost clarity, given accounts of the legal and political theory of the federation as a political association in its own right, without falling into the ‘statist trap’ that tends to reduce the federation to either a loose alliance of sovereign states exclusively
15 Martin Loughlin, Political Jurisprudence (OUP 2017) 1.
16 Carl Schmitt, Constitutional Theory (Jeffrey Seitzer ed, Duke University Press 2008); Olivier Beaud, Théorie de la fédération (Presses universitaires de France 2007); Murray Forsyth, Union of States: The Theory and Practice of Confederations (Leicester University Press 1981); Christoph Schönberger, Unionsbürger: Europas föderales Bürgerrecht in vergleichender Sicht (Mohr Siebeck 2005); Christoph Schönberger, ‘Die Europäische Union als Bund: Zugleich ein Beitrag zur Verabschiedung des Staatenbund-Bundesstaat-Schemas’ (2004) 129 Archiv des öffentlichen Rechts 81.
17 I use the terms ‘federation’, ‘federal union’, and ‘union of states’ interchangeably. In spite of the fact that the only Anglophone author of the four (Forsyth) uses the term ‘confederation’, I have chosen not to adopt it. The reason is not that it is historically or theoretically inadequate to describe the phenomenon in question eo ipso, but that it is associated with the flawed distinction between Staatenbund and Bundesstaat that has hindered a genuine understanding of the constitutional theory of the federation (see Chapter 1:I:A).
governed by international law or a sovereign federal state exclusively governed by public law. They agree that the federation is a discrete form of political association with its own legal and political theory that cannot be understood on the basis of the theory of the state. The federation calls into question the state-centric categories we tend to think of all political life in, most importantly, the idea of sovereignty.18 The political form of the state has been so influential—politically and theoretically— that we no longer understand political forms that question its basic assumptions. The categories of the state have blinded us to federalism and so, in the name of theory, we have denied the reality existing before our eyes.19
I. The Federation as a Political Form
Besides the EU, the political form of the federation is neither a part of our lived experience nor of our political imagination. To understand the EU for what it truly is, we therefore need to retrieve the lost meaning of the federation as a discrete form of political association. That we have forgotten the federation as a political form, however, does not mean that we have stopped using the words ‘federalism’ and ‘federation’. They just mean something else in the contemporary political vocabulary. To understand the constitutional theory of the federation we must first isolate the federation as a discrete form of political association from other traditions in federal thought that are more prevalent today before we can give a positive definition. We must, in other words, provide a negative definition of the concept of the federation.
A. The Negative Definition of the Federation
To understand the federation as a discrete form of political association we must first isolate it from federalism as a Universalist ideology centred on the ideas of global or cosmopolitan constitutionalism and governance.20 Federalism in this context refers to the ‘constitutionalization of world society’, manifest historically in the project of the League of Nations and in the contemporary world in the United Nations.21 This is an aspirational idea that was historically presented during the
18 The problem of sovereignty in a federal union of states will be discussed in the final section of this chapter (V).
20 David Held, Democracy and the Global Order from the Modern State to Cosmopolitan Governance (Wiley 2013); Ernst-Ulrich Petersmann, ‘The WTO Constitution and Human Rights’ (2000) 3 Journal of International Economic Law 19; Ernst-Ulrich Petersmann, ‘European and International Constitutional Law: Time for Promoting “Cosmopolitan Democracy” in the WTO’ in Gráinne De Búrca and Joanne Scott (eds), The EU and the WTO: Legal and Constitutional Issues (Hardt Publishing 2001).
21 Bardo Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529.
