20 Signe Rehling Larsen
European public law order, ‘Europe’ came to represent a promise of saving the European peoples from themselves.[1]
This constitutional vision of Europe is expressed in the German Basic Law, which opens with the German people’s consciousness of their ‘responsibility before God and man’ as well as their ‘determination to promote world peace as an equal partner in a united Europe’.[2] It is this responsibility and determination, it seems, which conveys authority upon the German constituent power and justifies the German people in giving themselves a new constitution.[3] In this way, as the German Constitutional Court put it in the Lisbon judgement, ‘the Basic Law calls for European integration’.[4] Declarations of ‘open statehood’ towards international law, although somewhat vaguer in tone, are also present in several other post-World War II constitutions.[5] This constitutional ‘openness’ or ‘friendliness’ to European law is a core feature of domestic constitutions within the new European public law order.[6] By entrenching the constitutional regimes of the Member States, the EEC and the ECHR emerged as integral to a new vision of stable constitutional regimes in Europe.
By creating a European order of ‘post-sovereign’ states, European integration and EU law made up a core part of a new European public law order that could finally replace the unviable world order of Droit Public de l’Europe.[7] The new European public law order expressed a vision of domestic public law based on the limitation of sovereignty and regulated interstate relations as a matter not of international law but of European law – EEC and ECHR law. But European law was also crucial to the reconstitution of Europe’s relationship to the (former) colonial world. The Community established with the Treaty of Rome included not merely ‘the six’ but also their Overseas Countries and Territories (OCT); albeit with a different status within the new Community.[8] In Part IV of the Treaty of Rome, an association was established between the EEC and the predominantly African colonies of France, Italy, Belgium and the Netherlands.[9]
European integration and EU law were in this way not only integral to governing the relationships between European states, but also to the reconstitution of Europe’s relationship to the outside world. This applied to the world’s two superpowers, but also to the (former) colonies. The new European public law order, in other words, did not merely reconstitute the ‘internal’ and ‘external’ aspects of Droit Public de l’Europe (constitutional law and international law between ‘civilised’ nations). In an attempt to protect Europe’s privileged place in the post-World War II era, it also recreated the ‘dynamic of difference’[10] between coloniser and colonised, between
- ↑ Signe Rehling Larsen, ‘The European Union as “Militant Democracy”?’ in Jan Komárek (ed), European Constitutional Imaginaries: Between Ideology and Utopia (Oxford University Press forthcoming).
- ↑ The German Basic Law, 23 May 1949, last amended on 28 March 2019 <https://www.btg-bestellservice.de/pdf/80201000.pdf> accessed 27 May 2020.
- ↑ According to Somek, The Cosmopolitan Constitution 84–5 post-World War Two constitutionalism – ‘constitutionalism 2.0’ – signifies a shift from liberty to dignity, and with that, there is a ‘remarkable alteration in the nature of the constituent power’.
- ↑ BVerfG, Judgement of the Second Senate of 30 June 2009 – 2 BvE 2/08 (Lisbon Ruling), para 225.
- ↑ In the Preamble to the French Constitution of 1946, it is declared that ‘subject to reciprocity, France consents to limitations of sovereignty necessary for the realisation and the defence of peace’. The Italian Constitution of 1948 contains a similar statement: ‘Italy may consent, on equal terms with other States, to limitations of sovereignty necessary to establish an order ensuring peace and justice among nations.’
- ↑ For a discussion of ‘constitutional openness’, see Giuseppe Martinico, ‘Constitutionalism, Resistance, and Openness: Comparative Law Reflections on Constitutionalism in Postnational Governance’ 35 (2016) Yearbook of European Law 318, 327 ff.
- ↑ Michael Wilkinson, ‘Beyond the Post-Sovereign State?: The Past, Present, and Future of Constitutional Pluralism’ 21 (2019) Cambridge Yearbook of European Legal Studies 6; Somek and Wilkinson, ‘Unpopular Sovereignty?’.
- ↑ Hansen and Jonsson, Eurafrica 244. For a broader discussion of the legal and political relationship of the OCTs within the project of European integration, see Adler-Nissen and Gad, European Integration and Postcolonial Sovereignty Games.
- ↑ This was set out in Part IV of the Treaty of Rome, Articles 131–136. For a discussion, see Carol Ann Cosgrove, ‘The Common Market and Its Colonial Heritage’ 4 (1969) Journal of Contemporary History 73, 77.
- ↑ Anghie, Imperialism, Sovereignty and the Making of International Law 274.
