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Abstract:
This article examines the response of Europe's courts to the dramatic challenges recently brought before them against the UN Security Council's anti-terrorist sanctions regime. These challenges raise central questions concerning the authority of international law in general, and of binding decisions of the Security Council in particular. The article focuses specifically on the response of the European Union's Court of Justice (ECJ) in the Kadi case, in which the ECJ annulled the EC's implementation of the Security Council's asset-freezing resolutions on the ground that they violated EU norms of fair procedure and property-protection. Kadi is a remarkable case in many ways and it has been warmly greeted by most observers. The article argues however that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union. It is an approach which carries certain costs for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the authority of Security Council resolutions. More importantly, the ECJ's approach carries the risk of undermining the image the EU has sought to create for itself as a virtuous international actor which maintains a distinctive commitment to international law and institutions.

European Union, European Court of Justice, United Nations Security Council, anti-terrorism, sanctions, asset-freezing, pluralism, constitutionalism, monism, dualism

Abstract:
This paper examines the path taken by the EU following the failure of the Treaty establishing a Constitution for Europe (TECE) in 2005, leading ultimately to the adoption of the Lisbon Treaty in 2007. It examines the reaction of Europe's political leadership to the rejection of the TECE, and considers the implications of the choice to opt for a hasty and secretive drafting and adoption process for the Lisbon treaty. It seeks to account for the apparently paradoxical choice of EU leaders to respond to the popular discontent with the EU expressed by the negative referenda results in France and the Netherlands, and to the increasing demands for greater democracy, openness and transparency in EU affairs over the last two decades, by retreating to a secretive and executive-dominated process. The second part of the paper focuses more specifically on the reactions of various Member States to the TECE, and on specific concerns or opposition they expressed in relation to particular provisions thereof, as well as on the support they expressed for retaining or strengthening specific provisions. The paper identifies these different national concerns and interests and indicates the extent to which they were or were not addressed in the text of the Lisbon Treaty. Finally, the paper reflects on whether there are more general lessons to be drawn from the failure of the latest attempt to provide a formal constitutional foundation for the EU.

European Union, Constitutional Treaty, Lisbon Treaty, constitution, transparency, democracy

Abstract:
This article examines the growth of 'governance beyond the state'. It highlights the problems resulting from the large number of organizations, networks and practices which are making authoritative rules and policies outside the state, and which lie beyond the control of national democratic and constitutional structures. Having set out the double dilemma of the rapid growth of transnational governance and its problematic relationship to democracy, the article criticizes existing approaches to the dilemma. The dominant current perspective, which I label the 'compensatory approach', takes the view that democracy cannot be transposed from the national to the transnational arena, and that other compensatory mechanisms must be found to regulate transnational governance. The paper takes issue with this general consensus that democratization of transnational governance is not a plausible endeavor, and argues that any convincing attempt to reform transnational governance should not avoid the democracy problem. While it is true that our contemporary understanding of the concept of democracy is very closely tied to the state context, the paper argues that we should nevertheless not jettison the concept when attempting to design more legitimate governance structures beyond the state. Rather we should acknowledge the powerful normative and social appeal of democracy as a governing ideal, and should try to identify its conceptual 'building blocks' with a view to thinking about the possible design of legitimate democracy-oriented governance processes beyond and between states.

In this spirit, the article proposes an approach to transnational governance which I call the democratic-striving approach. This approach is built on one particular building-block of democracy, which is the fullest possible participation and representation of those affected, with a view to ensuring the public-oriented nature of the norms and policies made. To illustrate the general argument in more concrete terms, the article draws on the example of the International Financial Institutions and the experience of the recent reform of their development assistance policies, known as the Poverty Strategy Reduction Program. The example demonstrates the practical potential of the democratic-striving approach to the reform of transnational governance, and suggests that it could be applied to many other instances of governance beyond the state.

transnational governance, democracy, legitimacy, international financial institutions

Abstract:
This essay re-examines the concepts of Law and New Governance with a view to pursuing three cumulative objectives. First, it emphasizes that both law and new governance are deeply contested concepts whose meaning and inter-relationship cannot just be assumed or taken for granted, as is the tendency in some empirical studies of their interconnection. Second, it suggests that both concepts be situated and understood within an explicitly normative framework, one that takes account of the different implicit value assumptions underpinning many existing definitions. Thirdly, from this starting point it seeks to sketch a new framework of the relationship between Law and New Governance. This framework notes first, the tendency of Law to give priority to the meta-value of social regularity and of New Governance to give priority to the meta-value of social responsiveness; but it notes also the inevitability of some balanced recognition of each of these overarching values within all species of normative order, including both Law and New Governance.

governance, multi-level governance, regulation, legitimacy, open co-ordination

Abstract:
The Irish No vote to the Lisbon Treaty has been presented by Europe's political leadership (including Ireland's political leadership) as essentially an Irish problem. In other words, the no vote was said to reflect concerns specific to the Irish population, and the solution proposed was for the Irish Government to suggest ways for the EU to respond to these concerns so that the Lisbon Treaty could be ratified. This paper examines the reasons why Ireland's no-vote to Lisbon in 2008 was treated so differently from the French and Dutch no-votes to the Constitutional Treaty in 2005. On that occasion, the no-votes were quickly recognized as a collective European problem rather than as a specifically Dutch or French problem, and it was not long before the Constitutional Treaty in its original form was declared to be dead. The paper argues that although there may have been many plausible reasons for distinguishing between the Constitutional Treaty no-votes and the Lisbon Treaty no-vote, the EU strategy of treating Ireland's rejection of the Lisbon Treaty as primarily an Irish problem is a short-sighted one. Ireland's no-vote is merely the latest manifestation of an ongoing crisis of popular legitimacy in the EU, and the European Council's strategy of treating it as essentially an Irish problem is part of the ongoing failure of Europe's political leaders to acknowledge the link between this crisis of popular legitimacy and the deliberately de-politicized nature of the European Union.

European Union, Lisbon Treaty, ratification, Irish referendum

Abstract:
The UN Convention on the Rights of Persons with Disabilities (CRPD) is a novel and ambitious human rights treaty which entered into force in 2008. Amongst its many interesting features are two of particular relevance to the European Union. The first is its strikingly ‘experimentalist’ architecture, to use the term coined by Charles Sabel and Jonathan Zeitlin in describing EU governance, and the second is the fact that this was the first occasion on which the European Community, as it then was, participated in the drafting and signing of an international human rights treaty. This article examines the role played by the EC in the process of negotiating the CRPD and considers whether or not the EU significantly influenced the experimentalist character of the Convention. It concludes that while the EU was, on the whole, an active and supportive participant in the drafting process, the Convention’s experimentalist character was driven by other factors, in particular by the central role of NGOs and other non-state actors in the negotiation process. The EU, on the other hand, strove mainly to promote the adoption of its own internal model of disability discrimination at the international level.