There’s a recent internet “buzz” around the question of whether the European Union is or is not a State, following British MP Daniel Hannan’s post claiming that, with the UN recognizing the EU officially and the Lisbon treaty giving it the power to sign treaties, the European Union was now officially a State under international law.
I 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 my attention. It was written by Tobias Thienel, who contributes at the Invisible College Blog. Tobias Thienel wrote, on the question of whether the EU was or not a State:
“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.”
I started writing a comment to discuss this point, and the comment ended up being over a 1000 words long. Feeling it would be too long for a comment, I decided to post it here instead. Hence the abrupt start:
I think Tobias Thienel’s point about the United States having as a State “la compétence de la compétence”, and not the European Union raises an interesting issue of comparison. I believe he is right in the end, but I’ve been toying with the idea of comparing the US’s constitutional structure and the EU’s institutions, and I’ve found some interesting parallels.
First of all, words of caution: comparison is not, of course, reason, and what I am about to write will probably make any comparative legal scholar scream, but I think it’s worth thinking about.
I left my legal lexicon at home, but if I remember correctly, “la compétence de la compétence” as far as State sovereignty is concerned is the capacity of a State to define the limits on its powers on its own, without exterior intervention. In that sense, bar a full-fledged revolution, “compétence de la compétence” is incarnated by the State’s constitution, and more precisely in the clauses concerning the possibility to amend it.
So the question is, how much difference is there in who holds the power to modify or amend the US Constitution and the EU treaties? In principle, Tobias Thienel’s claim that the US has kompetenz-kompetenz and not the EU is exact. But from a practical point of view, the difference is less than it seems.
The Amendment procedure for the US is set out in article V of the US Constitution, which requires that 3/4th of the States of the Union must approve an amendment (usually a bill passed by both houses of the Congress by a 2/3rd majority). Such a rule shows that historically and constitutionally, States play a major role in the Union’s structure.
As for the European Union, EU treaties, being treaties, require the unanimity of the Member States to be modified.
In principle, the difference is obvious, and that’s why Tobias Thienel is ultimately right, but I think it’s startling that from a practical point of view, they are not so dissimilar in the way that they both heavily depend on the states’ consent. How much difference is there between 3/4th of states’ approval and unanimity? Mathematically, 1/4th. Politically, I find it hard to tell. Legally speaking: not that much.
It should be also noted that the US federal government – especially Congress – is also bound to a certain degree in its attributions by Section 8 of Article I of the Constitution, even though those limits were considerably extended through a wide interpretation of the inter-State commerce clause, with the support of the US Supreme Court.
Again, similarly, the European Union’s institutions have increased their powers beyond the words of the founding treaties through a European Court of Justice-developed doctrine of implied powers, which was itself inspired by US Supreme Court’s past decisions.
So does the EU really not have “compétence de la compétence” compared to the US? I think the answer to that is really a “Yes, but…” more than an outright “Yes”.
The point that I’m trying to make is that, even though the EU falls short of being a State and a Federation like the United States, it’s not that far behind. I would be tempted to qualify it as a “proto-Federal State,” in the sense that all the main ingredients are there for a Federal State to be created, the political will – in the sense of citizens and their representatives willing to recognize the EU as a sovereign State, with a officially recognized national symbols, etc. – being the only one missing.
Let us just try to draw parallels between US and EU institutions (this is the part where the comparative lawyer screams): The European Parliament and the US House of Representatives, representing the People, the EU Council of Ministers and European Council and the US Senate, representing the Member States (ultimately, the people through democratic processes), and the EU Commission and US Administration.
It is, for example, interesting to note that in both the EU and the US, it is the two EU Councils (Ministers and Head of States or Governement) and the US Senate that are considered more influential than the EU Parliament or House of Representatives (except for tax and budget issues for the latter).
Of course, on many counts, the differences are enormous, due to the history and the culture of each structure. But all the EU lacks is the political will to cross the final step and become a full-fledged Federation. Brussels already holds in certain domains more power over the Member States than Washington, D.C. has on the States of the Union (although arguably far less in certain essential matters such as foreign policy and defense, but that is due to the different foundations the EU was built on compared to the United States’, and a common foreign and security policy is slowly put into place, even though not without important growing pains).
The Treaty Establishing a Constitution for Europe would have been a major step in this direction, but French and Dutch voters destroyed its chances, although it is questionable as to whether they did so – as the American media often reported – exclusively out of defense of national sovereignty. The consequences of these two “No” votes have been drastic on the European Union and are still being strongly felt 5 years later, and it’s obvious that politically speaking, declaring the European Union a Federal State anytime soon could lead to drastic results. But legally speaking, I believe we’re closer than most would think.
I’ll conclude the way I started: with words of caution. Comparing constitutional institutions (or doing any sort of legal comparison) is a very delicate job, and must always be done through the prism of cultural relativism. Experts could probably, if they cared to do so, go into the details of what I’ve just wrote and prove that what I said was simplified. I understand that. What I was trying to do is identify general institutional trends between a sui generis international organization that has gone so far into integration that some – such as Mr. Hannan – consider it already a State (and undeniably wrongfully so), and a real Federal State such as the United States. Nothing more.