Blog by Jaap Hoeksma
In the midst of the corona pandemic the EU is facing yet another fundamental crisis. Two of its 27 Member States are threatening to veto the Corona Recovery Fund and the multi-annual budget in protest against the rule of law-mechanism. The main argument, which Hungary and Poland invoke against the application of this mechanism, is that they are sovereign states and that other states and/or the EU should refrain from interfering in their internal affairs.
In reaction, the other Member States and the EU-institutions underline that the EU is a community of values and that the dissenting Member States have a legal obligation to uphold and protect these values. As Poland and Hungary base their arguments on the UN-system of International Relations, while the EU-institutions and the other Member States invoke the EU-Model of Transnational Governance, the question arises as to which set of rules should prevail in this conflict. Seen from the perspective of international law & relations, the meeting of the European Council of 10 and 11 December will be of historical importance!
The Westphalian System of International Relations
The prevailing rules of the United Nations for the conduct of states date back to the start of the Modern Era. The emergence of states after the Middle Ages required the adoption of common standards for the communication between them. The Peace of Westphalia, which was concluded in 1648 with a view to bring an end to the 80 Years War between the Spanish Empire and the Dutch Republic as well as to the devastating Thirty Years War on German soil, is generally seen as the starting point of the endeavour to civilize the European States (Grotius). The ensuing Westphalian System of International Relations is based on the principle of State Sovereignty. States have to deal with each other on equal footing and they must refrain from interference in the internal affairs of other states. Violation of these principles may be regarded as a casus belli. Although the organisation of the United Nations was established after World War II with the determination to save succeeding generation from the scourge of war, the Charter does not forbid war under all circumstances.
A democratic Union of democratic States
The intention of the founding fathers of the EU was to make the renewed outbreak of war between its Member States not only unthinkable, but also materially impossible. The method for achieving this goal lied in the sharing of sovereignty. They sacrificed the sacrosanct principle of sovereignty for the pursuit of peace 1952 ECSC). While the number of Member States gradually increased from the original 6 to the present 27, the participating States also agreed on an ever-expanding set of rules among them. In 1973 they presented themselves to the world as a ‘Union of democratic States’.
The process of European integration proved to have an internal dynamic. Once the polity had identified itself as a ‘Union of democratic States, sharing the exercise of sovereignty in ever wider fields’, the stakeholders wanted to give their polity democratic legitimacy too! The drive towards a democratic Union started with the direct elections for the European Parliament in 1979. As democracy presupposes citizenship, the introduction of EU citizenship in 1992 was in indispensable leap forward. The 2000 Charter of Fundamental Rights of the EU formed the Magna Charta of the newly created citizens as it gave them both political and civic as well as economic and social rights. The 2007 Lisbon Treaty, which granted the Charter the same legal force as treaties, construed the EU as a democratic Union of democratic States.
Article 2 of the Lisbon Treaty contains the values on which the European Union is based, including the values of democracy and the rule of law. These values are elaborated further in the treaties. According to article 7 certain rights of Member States, seriously risking to breach the values of article 2, may be suspended. Seen against this background, the disputed proposal to link financial assistance to the maintenance of the values of the EU is merely a next step towards the functioning of the EU as a constitutional democracy.
This concise comparison of the EU-System of International Relations with the EU-Model of Transnational Governance may serve to shed light on the legal background of the controversy. The conclusion, which must be drawn, is that it is impossible for states to be member of one international organisation and to insist on the application of the rules of another international organisation. Although the interference by one state into in the internal affairs of another state is prohibited under the UN-System of International Relations, the EU and its member states have agreed to do so in order to maintain the integrity of the Union as a community of values.
Citizens are entitled to come to the defence of these values too. Judges from various member states have demonstrated in Warsaw in support of their Polish colleagues. In the same spirit, the author of the present blog has made the hashtag #Citizens2RuleofLaw in order to invite its readers to post their views on the protection of the values of the European Union in the run-up to the forthcoming meeting of the European Council!