19 Nov The Identification of the EU as a New Kind of International Organisation
[Jaap Hoeksma focuses on the nature and functioning of the EU. His new book: The Democratisation of the European Union will be published in January 2023 by The Hague Eleven.]
Seventy years after the start of the process of European integration, the EU is still being portrayed by politicians and academics alike as an ‘unsolvable conundrum’. Despite strenuous efforts, theorists have been unable to forge the European Union into one of the pre-existing categories of international law and the Westphalian system of International Relations. As the EU is neither a state nor an organisation of states, it has been described for decades as a conundrum, as a strange animal or rara avis and, indeed, as an Unidentified Political Object (UPO).
The question as to whether the European Union can or must be regarded as a State has formed the subject of a thorough academic debate within the Opinio Juris community in 2010. The issue was raised by Julian Ku in reaction to the assertion of the British journalist and MEP Daniel Hannan, who argued in a newspaper that the EU meets the criteria for statehood as contained in the 1933 Montevideo Convention on the Rights and Duties of States. The author posited that the EU has a) a permanent population, b) a defined territory, c) a government as well as d) the capacity to sign treaties and concluded that the Union must be regarded as a State. Without indulging too greedily in the constitutive vs declaratory muddle, the participants in the debate pointed out that the EU lacks the intention to be and/or to be recognised as a State, that the Member States are the Masters of the Treaties and that, as a consequence thereof, the EU does not have the compétence de la compétence. Four years afterwards, the EU Court of Justice settled the dispute by confirming in unambiguous terms ‘that the European Union is, under international law, precluded by its very nature from being considered as a State’ (Opinion 2/13 of 14 December 2014, ECLI:EU:C:2014:2454).
…nor Union of States
It is equally obvious that the EU cannot be regarded as a union of states either. Although the European Communities started in the middle of the 20th century as a union of six sovereign states, their aim was -in contrast to their sister-organisation the Council of Europe- to create an ever closer union among the peoples of Europe. As a result of the aspiration towards ever closer union the Communities and their successor the EU gradually moved away from the traditional Westphalian system of International Relations. In 1963 the EC Court of Justice found that the Communities have an autonomous legal order; in 1979 the European Parliament was chosen by the citizens of the member states in direct elections; in 1992 the establishment of the European Union was accompanied by the introduction of EU citizenship; in 2002 the introduction of the single currency was completed and in 2019 the ECJ ruled that the EU has an autonomous democracy too. So, the 2022 ECJ-verdicts on the conditionality mechanism merely formed a confirmation that the EU has definitely departed from the existing patterns in international law and has abandoned the Westphalian system as the guiding paradigm for its internal functioning.
Absolute Sovereignty Destroys Absolutely
In hindsight, the experiment of the initiators of the process of European integration to end the circle of war by pooling sovereignty in a limited number of fields for a limited period of time may be seen as the first step away from the traditional approach to international relations. The peoples of Europe had learned the hard way that the old continent had become too small for absolute sovereignty. For them, two consecutive world wars in one generation had proven that absolute sovereignty leads to absolute destruction. In their view, war should no longer be regarded as the continuation of diplomacy with other means but had to be prevented on pain of mutual ruination.
It is a generally accepted academic principle that paradigms unable to explain reality must be replaced. As the Westphalian system of International Relations exclusively focuses on the conduct of states, it cannot account for the citizens in the process of European integration. The traditional template is notably uncapable of appreciating the role of the constitutional requirements of democracy and the rule of law in the drive towards ever closer union. It fails to see that democratic governance has been a prerequisite for membership of the emerging polity from the outset and that the member states had to respect their constitutional obligations in the process. In traditional foreign policy terms, they could not trade off legal principles against further integration. On the contrary, they had to make sure that their deals in the field of integration could stand the test of the (constitutional) courts back home. In consequence, they started to agree on their common constitutional principles and to apply these values to their organisation. So, the democratic demands changed the course of the process of integration. Instead of creating an overarching federal state, the member states applied the constitutional principles of democracy and the rule of law to their international organisation. Slowly but steadily the union of democratic states also acquired democratic qualities of its own.
The Novelty of the EU
This line of thought is not purely hypothetical but forms the conceptual essence of the ECJ verdicts of 16 February 2022 concerning the conditionality mechanism and the rule of law. The Court establishes that the member states have first agreed on their common values and subsequently applied these values to their organisation. This legal observation not only strokes with the historical development of the EU from a union of democratic states to a European democracy but also embodies an entirely new conceptual approach to the process of international cooperation between States. It refutes the Westphalian assumption that the EU should either become a state or an organisation of states by concluding that the member states and the EU have developed an original way for creating an ever closer union. The hallmark of the EU is that it applies the constitutional principles of democracy and the rule of law to an international organisation. Within the limits of its competences, the EU exercises sovereignty over its citizens.
A Union of States and Citizens
For students of public international law, these formulations put beyond doubt that the European Union is a new kind of international organisation. A union of states, which applies constitutional principles and exercises sovereignty over citizens, is not only impossible but also unthinkable under the vigour of the Westphalian paradigm. Instead of continuing to portray the EU as a conundrum or a strange animal, the academic community is finally in the position to identify the alleged ‘UPO’. As the EU is composed of both states and citizens, it may be described with a plain new term as a ‘union of states and citizens’. This suggestion can be underpinned with the observation that the EU has also developed a new model for the union of 27 states and well over 400 million citizens to be governed. The ECJ verdicts concerning the rule of law of 16 February 2022 confirm that the Union has indeed substituted its own and original European model of Transnational Governance for the outdated Westphalian system. Dealing within the framework of the EU, member states can no longer invoke the traditional principle of non-interference in the internal affairs of a sovereign state. Consequently, the EU has ceased to be a conundrum. In the first quarter of the 21st century, it may present itself instead as a ‘union of states and citizens, which works as a European democracy’.
A Bird’s Eye View
The circumstances that it has become possible to identify the EU beyond the Westphalian system as a union of states and citizens on the one hand and to observe that the EU has construed a new system of governance on the other hand, allow for a new understanding of the historical development in the domains of international law, international relations and global governance. From a bird’s eye view, they may be portrayed as follows:
Middle Ages feudal system diffuse sovereignty
Modern Era Westphalian system absolute sovereignty
Present Times multilateral approach shared sovereignty
Paradoxically as it may seem, the current challenge for the EU is to come to terms with its own democratic achievements and originality. Until today, the EU presents itself in its publications as a ‘unique economic and political union between 27 European countries’. This portrayal of the EU as a mere union of states does not account for the Union’s internal market, not for its autonomous legal order, not for its directly elected Parliament, not for its citizens, not for its single currency and, ultimately, not for its common values. So, the EU should draw the consequence of the democratisation of the Union and present itself for what it is: a democratic union of democratic states.
A Democratic International Organisation
The incremental evolution of the EU to a democratic union of democratic states determines the place and role of the Union in the field of foreign affairs. Obviously, the states of Europe have not embarked on their experiment with shared sovereignty in order to create a European super-power and, ultimately, a European Empire. Today, global problems like climate change, epidemics and nuclear proliferation demonstrate that the world has become too small for absolute sovereignty too! The European contribution to global governance consists of the concept of shared sovereignty. By pooling sovereignty in ever wider fields, the EU has established itself as the first-ever democratic regional organisation. The two-fold challenge for the EU in the field of foreign affairs is that it should simultaneously assume its role as a geopolitical power and prove its value as a multilateral partner in global governance.
The circumstance that the EU has been identified at last, forms no reason for complacency whatsoever. It is a mere statement of fact, which should be regarded as a welcome opportunity for diagnosing the shortcomings of the Union in its present form. Two practical examples may suffice to demonstrate the relevance of establishing a proper analysis of the Union’s present deficiencies:
- In a union of states individual member states cannot be bound against their will. They enjoy the right to veto majority decisions. In a transnational democracy of states and citizens, however, the right of national vetoes has become obsolete as it is incompatible with the exercise of parliamentary control at the transnational level. The current treaty provisions on deciding by unanimity in the field of common foreign policy should therefore be replaced with decision making by qualified majorities.
- In a union of democratic states it is obvious that democratic citizenship education is the sole responsibility of the member states. In a union of states and citizens which works as a European democracy, however, the union has a direct duty in this domain too. Article 10 (3) TEU clearly states that the citizens are entitled to participate in the political life of the Union. It follows that article 165 (2) TFEU must be adapted to the current character of the EU as a European democracy.
The final question to be addressed at the end of this blog is: why bother? In this case, because international law has been (ab)used for political purposes. The proponent in question made the argument in order to ‘prove’ that the EU is a State and that eurosceptic politicians were entitled to portray it as ‘a Fourth Reich from the yoke of which the UK had to be liberated’. The lesson, which the EU should draw from this unfortunate episode, is that it has to acknowledge its identity as a regional democracy of states and citizens. The EU is neither an empire nor an enigma but forms a new kind of international organisation, which can be categorised with an innovative legal term as a union of states and citizens. While the EU is undoubtedly the first specimen of the new category, other regional organisations may carve their own path towards a post-Westphalian future too.