Parliamentary Involvement in European International Relations

published in: Marise Cremona and Bruno de Witte (eds.), EU Foreign Relations Law: Constitutional Fundamentals (Hart, 2008), pp. 201–232.

17 Pages Posted: 6 Apr 2016

See all articles by Daniel Thym

Daniel Thym

University of Konstanz - Faculty of Law

Date Written: April 5, 2008

Abstract

From a historic perspective, the argument about parliamentary involvement in foreign affairs continues the struggle between the ancient prerogatives of the monarch and the novel claims for democratic self-governance. Foreign policy was one of the last strongholds of royal powers which often seemed to be beyond the reach of the democratically elected parliamentarians – as is illustrated so well by the British legal concept of foreign affairs as a ‘Crown prerogative.’ Surprisingly at first sight, the democratisation of our national constitutional orders and the recent parliamentarisation of the European Union have not fundamentally reversed the picture. Parliamentary oversight of foreign affairs continues to trail behind the role of parliaments in domestic policies. Within the European Union, this relates not only to the Common Foreign and Security Policy with its largely intergovernmental design, but similarly extends to various aspects of external EC policies which in many cases retain limited parliamentary involvement. Is there a monarchic relic in the Union’s supranational constitutional order? Or does the analysis of parliamentary accountability of European foreign affairs rather point at an underlying conceptual specificity of external relations which justifies and guides the special constitutional treatment of EU international relations?

Any legal analysis of parliamentary powers in foreign affairs must assign the leading part to the parliamentary control of international treaties as the international equivalent of domestic laws. There are however important differences between the rigidity of domestic legal rules, whose adoption, interpretation and change follows much stricter procedural patterns than the often dynamic, evolutionary and practice-dominated international legal regimes, which the scrutiny of parliamentary control of international treaties must take into account (section II). Shared competences between the Member States and the European Community are a peculiar but central feature of the European legal order which gives national parliaments an integral role in international law-making whenever the Community and the Member States act jointly through the adoption of a ‘mixed agreement.’ This well-settled practice has recently been challenged by the European Union acting under the second and third pillar, with a failed attempt to take over the traditional function of the Member States and their national parliaments (section III). The entry into force of the Constitutional Treaty would not fundamentally reverse the picture of parliamentary involvement in international treaty-making at the European and national level – despite some important new rights for the European Parliament.

International relations are much less than domestic politics dominated by rule-making. The main regulatory instrument of the Community method are legal rules adopted by the European institutions, published in the Official Journal, transposed and implemented by national legislators and administrations and interpreted uniformly by the European court system. International relations however are primarily about the political positioning in favour or against something: North Korea will not give up its nuclear weapons, only because the European Union says so in its Official Journal. Instead, foreign policy requires the identification of strategic goals, the development and constant adaptation of methods of their realisation and implementation. You may call it diplomacy, but in any case it differs substantially from domestic politics. This does not imply that parliaments should be powerless in this respect, but their channels of influence are much more indirect, centred around their control of executive actors, the tentative projection of an original ‘parliamentary diplomacy’, budgetary control and exceptional cases of direct involvement (section IV). The persistence of the special treatment of the European Parliament in foreign affairs and the identification of substantive differences between domestic policies and international relations leads us to more general considerations on the underlying conceptual specificity of the European foreign affairs constitution for which the specific role of the European Parliament is an important indicator (section V).

Keywords: EU external relations, CFSP, European Parliament, national parliaments

Suggested Citation

Thym, Daniel, Parliamentary Involvement in European International Relations (April 5, 2008). published in: Marise Cremona and Bruno de Witte (eds.), EU Foreign Relations Law: Constitutional Fundamentals (Hart, 2008), pp. 201–232., Available at SSRN: https://ssrn.com/abstract=2759460

Daniel Thym (Contact Author)

University of Konstanz - Faculty of Law ( email )

Universitaetsstrasse 10
Konstanz, 78457
Germany

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