Compétence sur la Compétence: A Comparison of the United States and the European Union, with Gloves

Flag of the European Union

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 Flag of the United States of America - Photo by J. Colman

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.

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  1. #1 by Tobias Thienel on 20 July 2010 - 10:17

    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, 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.

    I don’t suppose we are in any disagreement on any of this, but I would very much like to read your views on this.

  2. #2 by Xavier Rauscher on 20 July 2010 - 11:00

    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.

  3. #3 by Tobias Thienel on 20 July 2010 - 18:32

    Xavier,

    Thank you again. I’m glad we are not in disagreement, and I very much see the value of your comparison between the EU and the U.S. in practical terms. I absolutely agree that life on the federal level of a federal system with strong states is a lot like life at the EU level. Both must be careful not to overstep their powers, and whether their overall polity (the state as such, in the case of the U.S.) enjoys full compétence de la compétence is nothing to the point.

    As for my use of French terms, I’m not entirely sure the phrases of the pouvoir constituant and the pouvoir constitué are used in English discourse, but they certainly are in the German literature and case-law, if only in that relating to the ‘eternity clause’ of Article 79 (3) of the constitution. I certainly can’t think of any English (or German) phrases to express the same concepts as elegantly as the French words do.

    As for ‘souverainisme’, I’m not quite sure what that is, but I do recall reading the word ‘sovereigntism’ (cf BR Roth, ‘Anti-sovereigntism, liberal messianism and excesses in the drive against impunity’, Finnish YIL 12 (2001), 17-45). That’s pretty much the same word, so I’m not going to venture into the whole issue about the relative beauty of languages by commenting on the elegance of either word…

    By the way, Kompetenz-Kompetenz is spelled with two capital K’s. In German, every noun begins with a capital letter. Also by the way: I see that you speak of ‘compétence sur la compétence’, not ‘de la compétence’. I’ve usually read it in the latter form. Is the former the more common French expression?

  4. #4 by Xavier Rauscher on 20 July 2010 - 18:47

    Tobias,

    Thank you for correcting my German. I do not speak German at all, but it is a language I must learn at the first occasion I have. And thank you for reminding me of the word “polity”, which I had forgotten, but is very useful when talking about the EU (among others).

    Souverainisme is a political school of thought that believes in a Europe of Nations. Les Souverainistes are the fierce opponents of European Federalists. I’m not sure there’s a word for it in English. After all, in the UK, souverainisme is so mainstream I’m not sure it needs a specific name.

    As for “compétence de la compétence” or “compétence sur la compétence”, I’ve encountered both phrases. The litteral translation of these are respectively “competence of the competence” and “competence on competence”, but it amounts to the same thing. As you know, it can apply to a sovereignty as well as the power of a jurisdiction (usually arbitral tribunals, ICTY, etc.) to determine the legality of its own creation and the extent of its power.

    I think that’s all as far as vocabulary is concerned.

    Thank you for the very interesting discussion! I am looking forward to reading more of your writings.

  1. Democracy and Society » What Makes a State?

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