A Union of States and Citizens: The Emergence of a New Term in International Law

In memory of Professor Peter Kooijmans

On June 28th 2011 Peter Kooijmans participated in a conference about the place of the EU in international law, which was held in the Academy Hall of the Peace Palace under the auspices of the T.M.C. Asser Instituut and the Carnegie Foundation. According to a blog on this website, one of the participants started the debate on the presumption that ‘the EU is a thing for which lawyers have no name’. In the course of the conference, however, it was established that an examination of the EU from a viewpoint of international law might yield more result. Rather than trying to describe the EU in existing terms as either a State or a Union of States, participants suggested that the specific qualities of the EU post-Lisbon might warrant the conclusion that the EU has outgrown the Westphalian system of international relations and may now be described with a new legal term as a Union of States and Citizens.

The present author, who has been instrumental in the preparations for the conference, gave a follow-up in his blog of 24 September 2012, entitled: The Novelty of the EU. In the footprints of the renowned Dutch author Jos Kapteyn, he described the transfer of sovereignty to a higher authority by the Member States of the European Community for Coal and Steel as a ‘revolutionary breakthrough of the classis patterns of international organisation’. In his analysis the 1992 Maastricht Treaty paves the way for a second revolutionary breakthrough in the theory of international relations by initiating a process of establishing democratic control over the exercise of the sovereignty, which has been transferred by the Member States to the EU. From a conceptual point of view, this endeavour required the introduction of a citizenship of the EU. Consequently, the EU evolved into the first international organisation with citizens.

Elsewhere in Europe similar suggestions were floated. Apparently, the need to overcome the outdated dualism of the Westphalian system was not only felt by lawyers, but also by political theorists and, indeed, by politicians. Thus, in Berlin, a book was published in 2011 in which the erstwhile champion of federalism Jürgen Habermas portrayed the EU no longer as a future European state but rather as an emerging transnational democracy, consisting of states and citizens. Meanwhile in Brussels, the President of the European Council Herman van Rompuy started to describe the EU in terms of the Union, its Member States and its citizens.

The government of The Netherlands has given the emergence of the new term a considerable boost in its State of the Union, published on February 15 2013, by describing the EU as a Union of European (nation)states and of citizens. In fact, this State of the Union may be the first document in which the government of a Member State approaches the EU as a new phenomenon of international law and qualifies it with a corresponding term. There are at least three important advantages of this new approach. The first one is that the old and paralysing deadlock in the debate about the end goal or finalité politique of the EU has been overcome. Moreover, the intuitive fear of citizens that the EU will sooner or later will become some kind of Leviathanian Super State can be refuted by pointing out that the Union is in fact dependent on its citizens and its member states. Finally, the new theoretical perception of the EU offers an unexpected chance to address the democratic deficit of the Union.

The initiative of the Dutch government should therefore be welcomed as an important step in the process of coming to terms with a new phenomenon of international law. However, this joy would have been undiluted, if the government had not failed to account for its sources. Unfortunately, no reference has been made to the work of the small group of academic pioneers who ventured to acknowledge the emergence of a juridical phenomenon beyond the constraints of the prevailing paradigm and to address the consequences thereof for states and citizens. In his typical style Peter Kooijmans volunteered to serve as the mentor of this Gideon’s army. He should be remembered not only for the many results he achieved in the course of his career, but his contribution as an academic volunteer deserves to be celebrated as well. As author of the handbook Internationaal publiekrecht in vogelvlucht Peter did not shy away from nurturing a new term in international public law. The Board of the Carnegie Foundation may therefore wish to honour him by creating the Peter Kooijmans Award for the discovery of new phenomena in international law.