In this chapter, we examine the issue of competence to confer residence and citizenship based on a donation or investment in the light of international and European law as they stand today. We show that the national competence to do this is part of the sovereign nature of the modern state, which implies the ability to create a people and delimit the scope of the population granted a right to settle in the national territory, underpinned by rules behind such delimitation. We also explain why investment migration per se cannot be presented as unlawful and outlines the avenues for the eventual disciplining of its offshoots in areas unrelated to migration as such, thus connecting particularly well with Peter Spiro’s analysis of relevant international law.

This chapter supplies a detailed presentation of the rules of international and European law applicable to investment migration. We explain the problems behind the usual misconstruction of Nottebohm’s ‘genuine links’ – especially in the light of contemporary EU law – and offers in its place the promising concept of ‘relevant links’.

Part II assesses the new economic governance of the Eurozone in light of the “rule of law” framework. Chapter 3 appraises this framework in light of the principle of conferral and the competence allocation system set up by the Treaties. It finds that the Treaties are marked by deep conceptual ambiguity as to the reach of the notion of economic policy and as to the meaning of the concept of policy coordination. It shows how this ambiguity, in-built flexibility and dynamism was fully taken advantage of by the Union in the context of the Eurocrisis and COVID-19 crisis to substantially transform and upgrade EU economic governance. It finds that the reform process flirted with the limits of what was constitutionally feasible but never facially violated the scope of the Treaties’ enabling clauses for economic policy. The advent of a new system of EU economic governance in the postcrisis era is not irreconcilable with the competence allocation system of the Union but materializes the Treaties’ spirit of purposive openness and contextual adaptability. As the EU legislator seems to have reached, with NGEU, the outer edge of what is constitutionally feasible, any further consolidation of the economic pillar would require Treaty revision.

In Chapter 4 I discuss the theoretical definition of ‘political institutions’ sketched in Chapter 3, which sets them aside from the other institutions discussed in Chapter 3. Political institutions are norms and rules that transform a set of contradictory instigations to action into a single command; that discipline the struggle to achieve positions that can transform contradictory instigations into a command; that constrain the ruler’s search for generalised and stabilised behavioural compliance in any confined group; and that concern the procedure through which public powers produce private powers (as guaranteed rights), not the concrete outcomes of these procedures. I then distinguish different kinds of norms/rules: norms/rules of conduct versus norms/rules of recognition and norms/rules of conferral. It is argued that political institutions are norms/rules of conferral and are not rules of conduct or of recognition, and that confusion is generated when the types are mixed.

Chapter 3 analyses the prevailing theory that the ICC’s jurisdiction is based on delegation from States Parties. It provides a review of scholarship published in the years following the adoption of the Rome Statute and adopts one of the principal conclusions from this early debate: that States may lawfully delegate jurisdiction to an international court. This chapter then proceeds to undertake a conceptual analysis of what delegation of jurisdiction actually entails in the context of the ICC. It explores how the concept of delegation is understood in international institutional law, which provides a framework for understanding how international institutions receive and exercise their powers. This is directly relevant for the ICC as an international organisation. The second part of this chapter demonstrates the utility of describing jurisdiction as ‘the legal right to exercise powers’. It also provides an overview of the principles of international law under which a State may exercise jurisdiction extraterritorially and explains how these apply to the Statute’s jurisdiction regime. It argues that delegation of jurisdiction is, in theory, a sound legal basis for the ICC’s jurisdiction when either the territorial State or the State of nationality has consented to the Statute.