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Democracy in the European Union: What Has the Court of Justice to Say? 226 Christopher Vajda

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Democracy in the European Union: What Has the Court of Justice to Say? 226 Christopher Vajda Cambridge Journal of International and Comparative Law Publication The Cambridge Journal of International and Comparative Law is an open-access publication available online at <http://www.cjicl.org.uk>. Each volume consists of one or more general issues and occasional symposiums on a particular area of law. Editorial policy All submissions are subject to a double-blind peer-review editorial process by our Academic Review Board and/or our Editorial Board. Submissions The Journal accepts the following types of manuscript: (i) Long Articles between 6,000 and 12,000 words but not exceeding 12,000 words including footnotes; (ii) Short Articles not exceeding 5,000 words including footnotes; (iii) Case Notes not exceeding 3,000 words including footnotes; and (iv) Book Reviews not exceeding 2,500 words including footnotes. Please visit our website for submission details. Copyright and open-access policy The CJICL is an open-access publication governed by our publishing and licensing agreement. Any commercial use and any form of republication of material not covered by the applicable license is subject to the express permission of the Editors-in-Chief. Contact information Cambridge Journal of International and Comparative Law Faculty of Law, 10 West Road Cambridge, CB3 9DZ United Kingdom E-mail: [email protected] Web: http://www.cjicl.org.uk Typeset in Minion Pro. ISSN 2050-1706 (Print) ISSN 2050-1714 (Online) © 2016 Cambridge Journal of International and Comparative Law and Contributors This issue should be cited as (2015) 4(2) CJICL. http://www.cjicl.org.uk Editorial Board 2014–15 Editors-in-Chief Naomi Hart Ana Júlia Maurício General Managing Editors Chintan Chandrachud Catherine Gascoigne Nino Guruli Soterios Loizou John Magyar Barry Solaiman Conference Convenors Clara Rauchegger Anika Seemann Blog Managing Editor Jake Rylatt Treasurer John Magyar General Editors Anne Christine Barthelemy Cheyne Beetham Niall O’Connor Michael Dafel Brian Dearing Catherine Drummond Nelson Goh Caitlin Grimmer Darren Harvey Seung Pyo Hong Nicola Jaccarini Michael Judge Elliot Luke Daniel Litwin Christopher Markou Stevie Martin Natasha McNamara Lan Nguyen Mariam Olafuyi Kavitha Ramanathan Nivedita Sen Yu Sui Hong Alfred Vinca Yau Hannah Yiu Conference Assistants Michele Grassi Massimo Lando Jing Zhao Blog Editors MacKenzie Common Çigdem Akin Yavuz Faculty Advisory Board Professor Catherine Barnard Professor John Bell QC Dr Kate Miles Senior Treasurer Professor John Bell QC Academic Review Board Honorary Member Professor James Crawford AC SC Members Dr Geert de Baere Dr Douglas Guilfoyle Professor Philippe Sands QC Dr Freya Baetens Professor Peter Harris Dr Andrew Sanger Dr John Barker Dr Gleider I Hernández Mr Daniel Saxon Professor Catherine Dr Jessie Hohmann Professor Anat Scolnicov Barnard Dr Kirsty Hughes Dr Jillaine Seymour Dr Lorand Bartels Dr Daniel Joyce Professor Malcolm Shaw QC Professor John Bell QC Ms Jodie Kirshner Dr Bart Smit Duijzentkunst Dr Eirik Bjorge Dr Francesco Messineo Professor John Spencer QC Dr Antje du Bois-Pedain Dr Marko Milanovic LLD Dr Marie-Claire Cordonier Dr Alex Mills Mr Christopher Thomas Segger Dr Jasmine Moussa Dr Kimberley Trapp Dr Anthony Cullen Dr Eva Nanopoulos Dr Sophie Turenne Dr Dominic de Cogan Professor Lorne Neudorf Dr Isabelle Van Damme Professor Simon Deakin Ms Penelope Nevill Professor Guglielmo Professor Zachary Douglas Dr Sarah Nouwen Verdirame Dr Matthew Dyson Professor Roger O’Keefe Dr Santiago Villalpando Dr Alex Oude Elferink Dr Tiina Pajuste Dr Michael Waibel Professor Charles Garraway Dr Martins Paparinskis Professor Marc Weller Dr Markus Gehring Dr Kate Parlett Dr Ralph Wilde Dr Joanna Gomula- Dr Surabhi Ranganathan Professor Sarah Crawford Dr Pippa Rogerson Worthington QC Dr Tom Grant Dr Solène Rowan Dr Rumiana Yotova Professor Christine Gray Ms Evgeniya Rubinina Dr Sheng Zhang Volume 4 CJICL [2015] Issue 2 Contents Contents C Contents Editorial Developing Democracy: Conversations on Democratic Governance in International, European and Comparative Law 211 Clara Rauchegger and Anika Seemann I. Keynote Speeches Democracy and the United Nations 215 Dame Rosalyn Higgins DBE QC Democracy in the European Union: What has the Court of Justice to Say? 226 Christopher Vajda II. Democratic Challenges in Times of Crisis in the European Union Integral Pre-emption of EU Democracy in Economic Crisis under Transnational Law 242 Matej Avbelj Conditionality Measures within the Euro Area Crisis: A Challenge to the Democratic Principle? 268 Antonia Baraggia Economic Emergency and the Loss of Faith in the Greek Constitution: How Does a Constitution Function when it is Dying? 289 Afroditi Ioanna Marketou III. Promoting Democracy through International Law Developing Democracy through Liberal International Law 319 Russell Buchan Collectively Protecting Constitutionalism and Democratic Governance in Africa: A Tale of High Hopes and Low Expectations? 344 Kalkidan N Obse and Christian Pippan The Democratic Entitlement in an Era of Democratic Recession 368 Amichai Magen Contents Self-determination in International Law: A Democratic Phenomenon or an Abuse of Right? 388 Vladyslav Lanovoy IV. Promoters of Democracy Developing Democracy through Citizen Engagement: The Advent of Popular Participation in the United Kingdom’s Constitution-Making 405 Silvia Suteu Constitutional Courts and Judicial Law-Making: Why Democratic Legitimacy Matters 423 Anna Gamper Investment Arbitration, Investment Treaty Interpretation, and Democracy 441 Andreas Kulick DOI:10.7574/cjicl.04.02.211 © Authors Editorial DOI:10.7574/cjicl.04.02.211 Editorial: Developing Democracy Clara Rauchegger and Anika Seemann Editorial Developing Democracy: Conversations on Democratic Governance in International, European and Comparative Law Clara Rauchegger* and Anika Seemann** Conference Conveners This Issue results from the Fourth Annual Conference of the Cambridge Journal of International and Comparative Law, which was held at the University of Cambridge on 8 and 9 May 2015. The Conference theme, ‘Developing Democracy: Conversations on Democratic Governance in International, European and Comparative Law’, was chosen to promote an international exchange on current challenges to democracy. The Conference theme understood democracy as a work in progress, both at a normative and at a practical level. By placing the concept of ‘democracy’ in the context of ‘development’, we invited speakers to (re-)define its meaning, to confront political realities with democratic ideals and to explore promising solutions to the challenges they identified. In line with the international and comparative law focus of the Journal, scholars from several transnational fields of legal research came together in Cambridge for a joint exploration of democratic governance from various perspectives. The Conference thus brought together debates that tend to be held separately. We were heartened to find that there was much demand for this platform of exchange. Our call for papers attracted responses from all corners of the globe and from a variety of fields of legal research. We had to make difficult choices as more than 200 abstracts were submitted. The final Conference programme featured speakers from five continents, including early career researchers and established academics, as well as legal practitioners. The Conference papers, grouped into ten panels, were complemented by three highly insightful keynote speeches, delivered by Dame Rosalyn Higgins DBE QC, former President of the International Court of Justice, Judge James Crawford AC SC FBA of the * PhD Candidate, Trinity Hall, University of Cambridge (UK), DOC Fellow of the Austrian Academy of Sciences. ** PhD Candidate, Corpus Christi College, University of Cambridge (UK). (2015) Vol 4 Issue 2 Cambridge Journal of International and Comparative Law 211 Clara Rauchegger and Anika Seemann International Court of Justice, and Judge Christopher Vajda of the Court of Justice of the European Union. These presentations, in conjunction with a book launch—Dr Freya Baetens introduced the co-edited book Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford—and a book discussion—between Dr Russel Buchan, author of International Law and the Construction of the Liberal Peace, and Jessica Corsi—ensured that the Conference theme was explored from a variety of angles. The discussions continued over coffee breaks and during the Conference dinner, and we are pleased that a number of joint research projects have emerged from this exchange. Overall, the Conference attracted 150 participants. The transnational and interdisciplinary focus of the Conference is reflected in the variety of analytical approaches and normative outlooks of the articles in this Issue, as well as in the spectrum of legal and geographical backgrounds of the authors. The following 12 articles were selected from the more than 40 papers presented at the Conference through a rigorous peer review process and the authors were given the chance to revise their papers for publication. The Conference opened with the keynote address by Dame Rosalyn Higgins DBE QC, which has been reproduced in this Issue. In this contribution, Dame Rosalyn argues that we cannot think of democracy in an international context without taking into account human rights and the rule of law. She explores how this approach may help us define more clearly and better promote the concept of democracy at the international level. Judge Christopher Vajda’s contribution to this Issue, also
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