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Print This PageIs the European Union Now a State?
Yes, says Daniel Hannan, a journalist and British MEP. At least under those famous Montevideo factors, now that the E.U. has recently acquired the capacity to sign treaties.
I don’t know if things are quite so easy. For one thing, the E.U. does not itself necessarily consider itself a state, and it is not exactly clear if other states recognize the E.U. as a state. And if the E.U. is a state, what happens to all those member nations (with all those great soccer teams)?
But Hannan is right that the E.U. is certainly heading in the statehood direction, and that this will further complicate everyone’s relations with it for the near future.
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[...] asserted that the EU is now a state under international law (for a discussion on its merits, see Julian Ku’s post at Opinio Juris). MEP Daniel Hannan argues that the EU now fulfills all of the criteria of Article [...]
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[...] was doing my usual blog tour through RSS feeds and such, and came across this post on this question by Julian Ku at Opinio Juris. Reading the comments under them, one of them caught [...]
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[...] argued that since, per the Lisbon Treaty, the EU can now sign treaties, it is now a state (h/t Opinio Juris). Hannan cites Article I of the 1933 Montevideo Convention on the Rights and Duties of States: [...]
And here I was hoping I wouldn’t have to think about the constitutive vs. declaratory doctrinal muddle until the 22nd…
But this does raise an interesting point. Perhaps it’s a speedbump on the way to declarativism’s complete supremacy? Maybe a new criteria - self-perception as a state - ought to be added?
Anyways, one thing I’m sure about is that if (the highly unlikely happens) a EU state is formed, I’m sure that FIFA would allow the members’ teams to continue along the UK’s four teams in one country model.
Otherwise, it’d just be unfair…
at 10:31 pm EST Douglas M Dunbar
Really though, can you IMAGINE that team? We’d have to go a step further and force the rest of the world to combine just to keep things interesting!
at 10:47 pm EST Douglas M Dunbar
FIFA recognises non-sovereign entities as members, which is why England and Scotland field separate teams, so unless the national groups chose to merge they would continue as separate groups for the purpose of FIFA.
at 3:20 am EST Grant Michael McKenna
Whether or not the EU is heading towards Statehood and how this affects the status of its Member States is an interesting question - I just don’t think that the uninformed diatribes found on Mr Hannan’s blog help us to clarify any of this. I think it is a pity that Opinio Juris should afford these views more publicity than they deserve.
at 3:44 am EST Aurel Sari
Very unsurprisingly, Daniel Hannan misses the point by a country mile.
First, the Treaty of Lisbon (an amending treaty) did not give the EU ‘legal personality’. The EC, in the old terminology, had had this for a very long time (see Article 281 EC: ‘The Community shall have legal personality.’).
Secondly, the power to make treaties does not make an entity a state. Neither does the capacity to enter into treaties with the UN or to be an observer in the UN, which is what recognition by the UN entails. If it were any different, the Holy See and a fair few international organizations would be states.
But thirdly and more fundamentally, for an entity to be a state, it must not only have powers comparable to a state (a ‘government’ in the words of the Montevideo Convention), but those powers must not be derived from anyone else. They also, therefore, must not be limited by someone else’s consent. That, in a nutshell, is what sovereignty means.
A state naturally has full ‘compétence de la compétence’, in that it can take new powers at any time, of its own initiative.
The EU cannot. It remains bound by the principle of limited attribution, and derives all its powers from the Treaties, that is to say from the member states. It does not hold power in its own right, no matter how much power - or what powers, including the capacity to make treaties - it holds.
It therefore is not a state and does not lay claim to being one. That being so, it is also not recognized as a state by anyone. States simply are not in the habit of recognizing entities as something they do not themselves claim to be.
[That, by the way, appears to me to be why an entity's self-image is important. That, and the self-image may, of course, reflect the state of affairs on the four elements of the Montevideo test - especially if the test is not satisfied.]
Politically, it may be just about tenable to liken the EU to a state on the basis that the EU exercises quite a lot of power. Legally, however, the argument is impossible to support (unless and until the EU’s powers are so broad as to amount to giving it compétence de la compétence). Mr Hannan should not have put his argument in terms of international law. He has, and he is wrong.
at 5:57 am EST Tobias Thienel
Thanks for this Tobias! My feeling is that Danial Hannan and others of his persuasion are not terribly interested in the accuracy of their international law arguments (and I’m not - I hope - being an international law snob here). You could of course post your contribution on his website… just to see the reactions.
at 6:19 am EST Aurel Sari
I started writing a comment on this post, especially in response to what Tobias Thienel wrote on “compétence de la compétence”, which I thought was really interesting, but the comment ended up being so long (over a 1000 words) that I posted it over at my blog.
Just thought I’d let you know. Feel free to comment! I’d love to continue the discussion, whether here or over there.
at 2:47 pm EST Xavier Rauscher
Xavier,
A very interesting reply along lines similar to what I would have asked Tobias.
The ’superiorem non recognoscens’ criterion is perhaps satisfied by the EU from the internal point of view of EU law itself - the ECJ being the final settler of all issues of allocation of competence between member states and the EU itself - and Kadi seems to suggest, along similar lines, that the EU sees itself as a ‘domestic’ legal order.
But member states take different views (see Germany, see Italy), and their constitutional courts still, even after so many years, reaffirm the fact that the legal orders are separate, albeit coordinated - and that one day the domestic one might have to prevail.
So, isn’t the reason that the EU is not a state that its member states (and their legal orders) do not see it as such, whatever it may look like from above or outside?
If it were a state, btw, it’d be a pretty scarily undemocratic one…
at 3:24 pm EST Francesco Messineo
Francesco,
Even though this may split the discussion somewhat, I guess I should reply to Xavier’s points at his blog.
As to your arguments, I’m not sure the power of the ECJ to finally rule on the EU’s competences is really all that important. What matters is whether the EU has a power to define and extend its own powers by reference to noone other than itself. The powers of the ECJ to determine the limits of EU competences, and the broadening of the existing competences in the Court’s case-law, are therefore relevant only if the ECJ was and had felt free to invent new competences out of whole cloth, in the manner of a legislator or of framers of a constitution. Now, I would be (among) the first to criticize the depth of judicial reasoning in the ECJ, but I don’t think the Court has claimed any power to extend the EU’s competences without any basis in the treaties whatsoever.
Therefore, even including the concept of implied powers and other efforts by the ECJ to extend Union competences, the matter remains one of the breadth of the competences derived from the member states, and there is still no question of entirely non-derivative powers.
I think you are right to say that Kadi has presented the EU’s legal order as a domestic one, with a dualist attitude to international law. However, I don’t think this quasi-domestic legal order is also necessarily like that of a state with respect to the compétence de la compétence. It may be quasi-domestic in its attitude to the UN Charter, but still be derived from the member states.
I unconditionally agree with you, however, when you say that the member states still set great store by the derivative nature of EU law. In fact, I was specifically thinking of certain pronouncements of the German Federal Constitutional Court when I wrote my first comment.
at 4:17 am EST Tobias Thienel
I now cross-post my reply to Xavier Rauscher (from his blog) here:
Xavier,
Thank you for your thoughts.
I understand your comment as concentrating on the difference between theory and practice. On that aspect, your points are well taken.
I would just underline, however, that it is the theory that counts for the question whether the EU is a state or not. In theory, the EU is bound by the principle of limited attribution. Equally in theory, states are not. Indeed, even the United States is not bound by any such principle. Yes, the federal level is limited by its constitutionally derived powers, but I think the question is whether the United States of America - as a state in the international sense - has the compétence de la compétence or not. Of course, on the international level, the division between the federation and the states (of the U.S.) does not matter at all; indeed, as the U.S. Supreme Court has said in a different context, “in respect of our foreign relations generally, [...] the State of New York does not exist” (U.S. v. Belmont, 301 U.S. 324, 331 (1937)). International law therefore conceices of the U.S. as a unitary state (even though the states of the federation may have some treaty-making powers, for which international law refers to the extent of such powers by U.S. constitutional law). That unitary state plainly can give itself any new competence whatsoever. Whether that happens at the federal or state level is utterly immaterial to the question of statehood.
In other words, what matters is whether the entity in question needs to refer to any outside entity for its own powers. The EU does, the United States does not. Such limits as are imposed on the latter derive from its own constitution, that is from the United States itself.
That point, I would suggest, also helps us to take care of a potentially more critical example of comparative constitutional studies. Germany is, of course, a federal state. As such, the federation is in exactly the same position as is the federation in the U.S. It is limited to its constitutional competences. But that is not the critical point. The critical point is that, by Article 79 (3) of the constitution (the Basic Law or Grundgesetz), some provisions are not subject even to constitutional amendment. They cannot be changed, except (perhaps) by a wholesale revision of the constitution (Article 146) or (of course) by an extra-legal revolution. Now, never mind the fact that those fully entrenched provisions do not concern the competences of either the federation or the states. They enshrine things like the basic guarantee of human dignity, democracy and the republic. Even so, we might ask ourselves: is the Federal Republic of Germany any less of a state because it cannot reconstitute itself as a monarchy? Does it not have the compétence de la compétence in that respect?
My answers to those two questions would be: No, it is in no way less of a state for that, and yes, it does have full compétence de la compétence. The German pouvoir constituant (the constitution-making power) has withheld from the pouvoir constitué (the constituted power) the power to revise certain basic decisions. But the point is that the pouvoir constituant is also an emanation of the German state. Even if the German state, as the pouvoir constitué, is somewhat limited by the provisions handed down to it by the pouvoir constituant, it does not refer to any outside entity for its powers. Rather, the German state as such encompasses both those powers (pouvoirs), and as such has plenary compétence de la compétence.
at 5:00 am EST Tobias Thienel
I am also cross-posting my reply to Tobias’ reply, so as to try to keep the discussion on both blogs:
Tobias,
First of all, thank you for commenting on my post, I really appreciate it and the possibility of pursuing this conversation.
Secondly, you’re absolutely right, we are not in any disagreement over this, and the points you make are all in my opinion exact. I do not claim that the EU is a state under international law, and I do not believe that it will be any time soon.
What I was trying to show was something of a stretch, but which I thought was interesting to discuss anyway. I wanted to compare elements of compétence de la compétence in the US and the EU, and see how much – in practical sense – difference there really was. What I have always found interesting in the US Constitutional system is how strong the power of the states are compared to the Federal Government, a detail those exterior to the US tend to forget, except perhaps during the Presidential Election, in which the rather bizarre electoral system reminds us of just that.
I found that there were less than expected, especially in the way the “pouvoir constituant” (again, in a practical sense – there is no “pouvoir constituant” in theory in the EU) manifests itself through the intermediary of the member States of the EU, or of the states of the Union. In both cases, to amend or modify the Constitution or the Treaty respectfully, you need the consent of the states’ legislatures. The difference – which is considerable from a theoretical point of view but far less in the practical sense – is that a multilateral treaty needs unanimity to be modified, whereas the US constitution “only” needs 3/4th of the states’ endorsement.
I also tried to draw parallels between the institutions of the two systems in order to show that the EU is closer to being a Federation than we’d think, and that it wouldn’t take much of a push, in theory, for the EU to become a full-fledge state. We are clearly and have been for a while beyond the “Confederation” step, with permanent institutions and considerably weakened sovereignties of the Member States. What is missing is essentially the political will of the people and the representatives to cross that step, and since the debacle of the Treaty establishing a Constitution for Europe, I doubt we’re going to try that again anytime soon (somewhat to my regret, I must admit).
As an aside, I’m glad you mentioned “le pouvoir constituant”, for having learned constitutional law in French, I had no idea on how to say that in English. I guess you just say “le pouvoir constituant” the same way you say “la compétence sur la compétence” or “kompetenz-kompetenz” (in German). Keep me posted if there’s an equivalent English expression. I’m also on the look-out for an English word for “souverainisme”.
To answer your question regarding the German Federation, I am in full agreement with you. The German state, and the German people (le pouvoir constituant), have the full power to do anything they wish to their Constitution and the regime they live in. In that sense, they have full compétence de la compétence, as guaranteed by the concept of national sovereignty.The question I try to ponder is: could we say – and again, I must stress that I am speaking on practical, not theoretical, grounds – the same thing of the European “people”. The European “people” (and thanks to Erasmus and other programs, I do believe there is a growth of a “European conscience”, especially among younger people) also have the power, through their representatives – the governments that they elect in a democratic process – to do whatever they wish to the Lisbon Treaty. They can push to put an end to the EU, or on the contrary, to push the EU further. It depends on the people of Europe to decide whether the EU will, one day, reach Statehood or not.
Of course, in theory, what I just wrote does not make any sense: the EU, contrary to the US or Germany, does not benefit from sovereignty. Its powers depend on what its sovereign Member States agree to delegate to Brussels. And what powers the Member States delegate, they have the full capacity to take them back should they wish it so.
But in practical terms, I think the distinction is less clear, and I think it’s interesting to consider that. For the present, and for the future.
at 5:52 am EST Xavier Rauscher
Hmm, I should have been more careful with the spacing in my cross-posting.
To answer Francesco, I agree on many counts. In the end, it’s the political will (and lack thereof) of the people of the Member States of the European Union that keep the EU from becoming a full-fledged federal state, and that, when you study european law, it’s stunning how “domestic” the legal system looks.
I think it’s also interesting that the ECJ has opted very early on for an implied powers doctrine with the AETR decision in 1971, and the superiority of the EU law over domestic law with the Van Gend en Loos (1963) and the Simmenthal (1978) decisions.
I do somewhat disagree with the lack of democracy in the EU system. Don’t misunderstand me: the EU system is far from perfect in its democratic dimension, but I’ve always thought that its lack of democratic control has been overstated.
First of all, the EU Parliament is directly elected by the people. The fact that no one shows up at the elections, which politically weakens the Parliament, is another problem, and the European citizens are the first that need to receive blame for that.
I’d like to add that the EU Parliament has seen its powers constantly increased since 1979, and is now on par with the EU Council of Ministers on most domains.
Secondly, the EU Council of Minister, which probably holds the most power over the workings of the EU, is made up of Ministers from democratically elected national governments. It’s indirect democracy, but it’s still democracy. If you’re unhappy with its working, vote for the opposition during the next national elections.
Lastly, the EU Commission’s composition and work is more and more under the scrutiny of the EU Parliament, which I believe does a good job, and may lead to the future to a real government or administration, responsible before Parliament.
That being said, I would agree with you on the point that there’s still a lot of work to do.
at 6:04 am EST Xavier Rauscher
When it comes to Kompetenz-Kompetenz (I’ve only ever seen the phrase quoted in German), I wonder what the difference is between the EU where all 27 member states have to agree to a Treaty change, and the US where you need 3/4 majority among the states. In both cases, the “federal” government cannot unilaterally extend its competences.
And BTW, Tobias, until the Treaty of Lisbon the EU did not have legal personality. Only the EC did. Now tha the distinction between the EU and the EC has been abolished, the EU for the first time has legal personality. Not that this was ever particularly important, but it did mean that the EU was never competent to conclude treaties in the areas of CFSP and JHA.
at 8:29 am EST Martin Holterman
Martin,
Xavier explores your point about a comparison between the EU and the U.S. at his blog, where I have a comment on the question you raise about Kompetenz-Kompetenz or compétence de la compétence (I think the Tadic case used both expressions, German and French).
As for the point you have taken by the way, yes, agreed, in the old system it was the EC - not the EU - that was invested with legal personality. In my first comment, I set out the then wording of Article 281 EC with its reference to the ‘Community’. I just didn’t think it worth adverting to the difference. The EC wasn’t a state then and the EU isn’t one now. My point in that respect was simply that international legal personality had existed before the Lisbon Treaty even at Brussels (forgetting Belgium) and that the new state of affairs (a) was hardly revolutionary and (b) did not make the EU a state. Also, I should think Mr Hannan wouldn’t care much if the entity he thinks is a state is the EC or the EU.
at 3:44 pm EST Tobias Thienel