Document Type

Article

Disciplines

International Law

Abstract

Accountability is a catchword in contemporary legal and political debates. It is supposed to characterize the relations between the governed and the government in democratic societies, and the absence of it is connected to corruption and abuses of power. As a concept it is not entirely new, but its role as a core-principle of democracy is relatively recent, shifting focus from concepts such as interests and representation. The notion of accountability is often associated with the demand for "transparency," access to information and rules of publicity of governmental work. The understanding of accountability in contemporary democratic theory is closely associated to the nation-state since current conceptions of democracy are all rooted in the institutions and practices of the nation-state. That implies that the issue of accountability in contemporary forms of government becomes problematic when related to the possibilities of accountability in international and supranational settings. It is an issue that is related to more general understandings of the legitimacy of political and legal decision-making at supra- and international levels.

I argue that the problems of accountability are clearly illustrated in contemporary forms of supranational government, since supranational government, at least in the form of the European Union, can be seen as a mix between different constitutional competencies normally allocated to the different branches of national governments. Carol Harlow's work is, to a great extent, an attempt to conceptualize accountability through a detailed doctrinal analysis of law,2 rather than by any grand theoretical scheme.3 This essay situates the issues of accountability of supranational governance she raises in a general context of constitutional theory-a difficult goal within the constraints of an essay. The general problem of accountability has a special significance within supranational settings since the electorate, as opposed to national governments, cannot hold the decision-making body (only some of its constituent parts) accountable. I argue that the problem, if more pervasive, namely that the supranational constitutional structure creates an order that affects the practices of delegation, deliberation, and decision-making, which take place without sufficient possibilities of control. In that sense, it is also clear that the issue of the legitimacy of supranationalism is not-as many claim -a matter that is unique for polities like the European Union; rather it is an instance of a more general problem of international and national constitutional structures in the face of extensive delegation and complexity of structures of governance, ultimately reflecting the tasks of contemporary public authorities.

My second claim is that the basis of legitimacy for most forms of supranational governance has been functional delegation rather than any widely shared agreement on constitutional essentials or common identity. In that sense, my thesis is that the most promising way of protecting accountability of the governing towards the governed in a post-national setting is not a matter of political constitutionalism but a combination of limited functional delegation, as well as procedural and judicial safeguards of application of supranational rules. It is a view that, in the context of the European Union, amounts to a qualified defense for the status quo.

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