integration is a significant part of a broader project of reconfiguring the global order after the decline and eventual collapse of European imperialism.[1] That being said, European integration is distinct from other legal and economic institutions set up to govern the post-World War II order such as the Bretton Woods institutions or the UN. The reason for that is not merely that European integration was never meant to be a ‘global’ institution in the sense that it only includes ‘European’ states. Equally important is the fact that European integration created a new legal and political order for Europe; the former world of the ‘civilised’ and hence sovereign states. In a global order no longer centred on European interests guised in the language of universalism, European integration emerged in order to secure European autonomy and European interests as distinct from the hegemonic forces of the new world order. In a new world, where sovereignty became for the first time in history the default for all politically organised communities rather than merely European states and where Europe was no longer the centre of gravity, European integration sought to secure a place for Europe, and European states, in the world.[2]
After World War II, a double movement took place in the European public law order. While the core principle of the old world of European international law, namely state sovereignty, was extended en masse to the ‘uncivilised’ (now ‘developing’) world, many of the former imperial metropoles turned away from this principle within Europe. Just when sovereignty was no longer something that predominantly belonged to European states, a new vision for the explicit limitation of sovereignty emerged in Europe.[3] In this vision, European integration was from the very beginning conceived as an integral part of this new European public law order, which, in contrast to the old world of Droit Public de l’Europe, was founded on the view that sovereignty had to be restrained both within domestic public law and with regard to intra-European relations. Yet, in contrast to what is often maintained in the literature, the new European public law order was not merely a response to a fear of nationalism and fascism – or so it will be argued.
To anticipate the argument put forward in the remainder of the article, the turn away from sovereignty within Europe, both with regard to domestic public law as well as intra-European relations, was instrumental for the reassertion of European interests and European autonomy in the post-World War II global order where ‘Europe’ had lost its privileged place. The new European public law order sought to protect the autonomy and interests of Europe, not merely vis-à-vis the hegemonic superpowers of the post-World War II order but also vis-à-vis the ‘developing world’. Crucially, the new European public law order asserted European interests in the former colonies and laid the foundations that would allow Europe to continue its ‘civilising mission’ abroad.
6. A new European public law order
After World War II, Droit Public de l’Europe was slowly replaced with a new European public law order. As was the case for Droit Public de l’Europe, this legal order consisted of both ‘external’ aspects regulating the relationship between European states and ‘internal’ aspects regulating domestic public law. European law – European Community (EC)/EU law and European Convention on Human Rights (ECHR) law – as well as domestic constitutional law emerged as interdependent constitutive parts of this new European public law. This new public law order was founded on the wish to limit or even transcend the master principle of Droit Public de l’Europe, namely, sovereignty.[4] In the words of the German Constitutional Court, the 1949
- ↑ Jan Nederveen Pieterse, ‘Europe, Traveling Light: Europeanization and Globalization’ 4 (1999) The European Legacy 3.
- ↑ For a debate on whether the formal transfer of sovereignty amounted to a transfer of sovereignty in any material sense, see Robert H Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge University Press 1991). See also Koskenniemi, The Gentle Civilizer of Nations 175.
- ↑ Alexander Somek and Michael A Wilkinson, ‘Unpopular Sovereignty?’ 83 (2020) Modern Law Review 955.
- ↑ For a similar argument, see Michael A Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (Oxford University Press 2021).
