CCL Chapter 6

Domestic applicability international and European law and Democratic backsliding

What is external sovereignty, and what powers does it give a state?

External sovereignty is a state’s independence in the international sphere.

It includes:

• Capacity to conclude treaties

• Capacity to decide whether international law applies domestically

• Capacity to determine the relationship between international and domestic law

Why does external sovereignty not automatically make international law domestically applicable?

Being bound internationally and being applicable domestically are different questions. A treaty may bind the state internationally but citizens cannot invoke it before domestic courts.

depends on the type of treaty and domestic legal framework (monism, dualism or conditional monism/incorporism).

Compare Monism. conditional monism and dualism

Model	Domestic effect of international law
Pure Monism	International law automatically applies domestically
Conditional Monism (Incorporism)	Applies only to the extent allowed by the constitution
Dualism (Transformism)	International law must first be transformed into domestic law

Why do dualists reject automatic domestic application of international law?

Because only states (not citizens) are bound by treaties under international law. Domestic effect requires national legislation (ensuring domestic sovereignty and legal framework to give effect to international obligations.)

What is transformism?

The dualist idea that treaties become domestically applicable only after transformation into national law.

What is incorporism?

The conditional-monist idea that international law applies domestically because and to the extent the constitution allows.

What problem arises when domestic law conflicts with international law?

The legal system must determine:

• Hierarchy

• Precedence

• Legal effect

• and which norm ultimately applies

Why is the Dutch system considered conditional monism?

Because Article 94 of the Dutch Constitution allows courts to disapply national legislation that conflicts with self-executing treaty provisions.

Why is the French system considered conditional monist?

Because Article 55 of the French Constitution gives treaties precedence over Acts of Parliament once properly ratified and published.

Why is EU law constitutionally unique?

The EU is not a state but creates its own autonomous legal order, with its own institutions, principles and legal rules.

What does the autonomy of the EU law mean?

EU law derives validity from the EU legal order itself rather than from national legal systems.

Compare international law and EU law regarding domestic applicability.

International law » depends on domestic constitutional arrangements

EU Law » claims direct applicability and primacy through its own legal order

What are direct effect and primacy?

Direct effect = individuals may invoke EU law before national courts

Primacy = EU law prevails over conflicting national law

Why are direct effect and primacy necessary according to the CJEU?

To guarantee the unity and effectiveness of EU law across all MS.

Who is the ultimate arbiter of EU law according to the EU legal order?

CJEU » The Court of Justice of the European Union

Can EU law ever be limited?

Yes, where there is a genuine and sufficiently serious threat to a fundamental interest of society, subject to EU law requirements and proportionality review

Why do constitutional courts sometimes challenge absolute EU autonomy?

Because they argue that EU powers ultimately derive from the consent of member states and must respect national constitutional identities. (popular sovereingty)

Compare the Dutch and German approaches to EU law.

Netherlands

• Broad acceptance of EU autonomy.

Germany

• Acceptance of primacy and direct effect, but subject to constitutional identity and eternity-clause limits.

GERMANY

1. What is Germany's ultra vires review?

2. What is identity review?

3. Why is Germany's position often summarised as "supremacy of law, not supremacy of judges"?

#1: The power of the German Constitutional to review whether EU institutions have acted beyond the competences granted to them.

#2: The German Constitutional Court's power to determine whether EU law conflicts with Germany's constitutional identity.

#3:Germany accepts EU law's authority while rejecting the idea that EU institutions alone determine the limits of their own powers.

What is populism?

A thin-centred ideology that divides society into:

• "the pure people" versus "the corrupt elite"

• claims politics should express the general will of the people.

Why is populism called a thin-centred ideology?

Because it lacks a complete political programme and can attach itself to left-wing or right-wing host ideologies.

What are the three core characteristics of populism according to Müller?

• Anti-elitism.

• Anti-pluralism.

• Claim of exclusive representation of "the people."

What does the populist claim "I alone represent the people" mean?

Opponents are portrayed as illegitimate, corrupt, or anti-people rather than as legitimate democratic competitors.

Why is populism often considered a threat to pluralism?

Because it denies the legitimacy of political opposition and competing viewpoints.

Why are referendums attractive to populists?

They can be portrayed as a direct expression of the people's will and used to bypass intermediary institutions.

What is democratic backsliding?

The gradual erosion of democratic institutions and constitutional safeguards by elected leaders.

Why is democratic backsliding often difficult to recognise?

Because it occurs incrementally and usually through formally legal procedures.

Compare a military coup and democratic backsliding.

Military coup » Sudden rupture.

Democratic backsliding » Gradual institutional erosion through legal mechanisms.

What are common targets of democratic backsliding?

• Judicial independence. (forced retirement, polish reforms of the national judicial council)

• Independent media.

• Regulatory bodies.

• Parliamentary oversight.

• Election administration.

List some methods of democratic backsliding

• Undermining judicial independence through institutional capture.

• Democratic backsliding through weakening judicial independence.

• Using crises and emergency rhetoric to concentrate executive power.

• Attempts to control media or independent prosecutors > capturing independent institutions