17 Jul Is the European Union Now a State?
17.07.10
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17 Comments
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.
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…
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!
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.
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.
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… Read more »
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.
[…] 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 […]
[…] 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 […]
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.
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…
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… Read more »
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… Read more »
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,… Read more »
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… Read more »
[…] 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: […]
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.
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.