Categorizing the EU as a New Subject of International Law

Abstract

Guest blogger Jaap Hoeksma provides ample evidence for the conclusion that the EU has established itself at the global level as a ‘democratic regional organisation’. The suggestions, put forward in this blog, are based on his book ‘The EU: A Democratic Union of Democratic States’, to be published at the start of the Conference on the Future of Europe by Wolf Legal Publishers.

In its advice on the 2007 Lisbon Treaty the Dutch Council of State established that the European Union can no longer be understood in terms of the Westphalian categories of state and union of states.[1] The problem was elaborated in the same period by the Belgian author Paul Magnette, who published a study under the title: ‘What is the European Union?’, but failed to solve the conundrum.[2] On the eve of the Conference on the Future of Europe, which is to start on 9 May 2021, many theorists and practitioners are still convinced that the nature of the EU cannot be identified.[3] In a recent podcast on the issue, the Secretary-General of the Transnational European Policy Studies Association Jim Cloos referred to the old dilemma of either federal state or confederal union of states by replying in an enigmatic manner that the EU is ‘none of those and all of them’.[4]

A set of new terms

Against this background, the appeal of the Presidents of the European Parliament, the Council and the Commission to underpin the democratic legitimacy of the EU with an own and distinct political philosophy may be perceived as an open invitation to the academic community. The Joint Declaration, which the three President issued on the 10th of March 2021, contains the parameters for the upcoming Conference and includes the Union’s democratic foundations in the subjects for discussion. While the political aim of the Conference is to involve citizens in the process of EU decision making, the legal challenges are to establish the nature of the European Union at 70 and to identify the place of the EU in the UN system of global governance. The purpose of the present blog is to suggest that it is entirely possible for citizens and scholars to overcome the seemingly perennial stalemate in the debate about the nature of the European Union. The author notably intends to submit substantive legal evidence for the conclusion that the 2007 Lisbon Treaty allows for the EU to be described with a set of new terms as a ‘democratic Union of democratic States’, which may be identified from the global perspective as a ‘democratic regional organisation’. He regards it as a fortunate coincidence to publish this finding at the 75th anniversary of the inaugural session of the International Court of Justice (18 April 1946) as this demonstrates that international law is not static, but allows for innovation!

An organisation sui generis

A plausible explanation for the prevailing stalemate may be that researchers and politicians continue to focus their attention more on the question as to what the EU and its predecessors the European Communities ought to be than on establishing what the EU actually is. They enabled themselves to avoid the EU conundrum by agreeing to describe the emerging polity as an organisation sui generis, an ava raris that defies further identification. In this way the federalists, who want the EU to become a federal state in analogy of the United States of America, and the intergovernmentalists, who prefer the EU to establish itself as a confederal union of states, can continue their outdated feud ad aeternam. In other words, their preoccupation with existing categories and paradigms prevents them from regarding, let alone, identifying the EU as a new subject of international law.

A fresh pair of eyes

Persistent stalemates like the deadlock concerning the nature of the EU tend to signal impending changes of paradigm. In such situations, a fresh pair of eyes is needed to break the deadlock. Students and scholars are trained to perceive international law & relations from the perspective of states. Traditionally, states and organisations of states are regarded as subjects of international law. Indeed, the Westphalian system of International Relations, which underlies the functioning of the United Nations, does not offer other possibilities for states wishing to prevent the renewed outbreak of war between them than either to become a federal state or settle for a confederal union of states. Unions of states in specific regions are often referred to as regional organisations. However, the six Western-European states, which started the process of European integration in the aftermath of World War II deliberately broke with the Westphalian system. They decided to share sovereignty in order to achieve peace between them. This revolutionary breakthrough of the existing pattern of international relations provided the basis for an alternative model of governance, which has come of age in the subsequent seventy years.[5] The theory of democratic integration offers the fresh pair of eyes by replacing the Westphalian paradigm of states in the study of the EU with the civic perspective of democracy and the rule of law.[6] In doing so, it provides the emerging EU democracy with a solid theoretical foundation.

Distinctive features

An analysis of the EU on the eve of the Conference on the Future of Europe from the new perspective results in the following, provisional list of distinctive features.

1 The 2007 Lisbon Treaty accentuates that the EU is not only composed of states, but also of citizens. Consequently, the EU can be described as a Union of States and Citizens.

2 EU citizenship lays the foundation for the functioning of the EU as a European democracy. The conceptual hallmark of the Lisbon Treaty is that it construes the EU as a democracy without turning the EU into a state. Title II TEU contains explicit provisions on the democratic principles of the Union.

3 Contrary to traditional organisations of states the EU has a single currency. The member states of the EMU and the EU institutions are the ‘joint sovereign’ behind the euro.[7]

4 Article 3 TFEU authorises the EU to exercise sovereignty in the field of foreign affairs on behalf of the member states, notably with respect to the conclusion of international agreements. Reflecting this unique quality, the United Nations has granted the EU enhanced status.[8]

5 The recent decision to introduce a rule of law-mechanism with respect to the granting of EU subsidies for combatting the consequences of the COVID19-pandemic symbolises the EU’s departure form the Westphalian system. In the traditional approach this mechanism would have been regarded as ‘an unacceptable interference in the internal affairs of a sovereign state’. In the European Model of Transnational Governance, however, disputes concerning its application may be submitted to the EU Court of Justice.

Conclusion

The present analysis provides ample evidence for the conclusion that the EU can no longer be understood in terms of the existing categories of the Westphalian system and forms a new subject of international law. From the internal perspective of citizens, the European Union can be identified on the eve of the Conference on the Future of Europa as ‘a democratic Union of democratic States’. At the level of the global system of governance, moreover, the EU can be categorised as a new kind of regional organisation, that may be appropriately described as a ‘democratic regional organisation’.[9] Seen in this light, the appeal of the three Presidents comes at a most appropriate time. The Conference on the Future of Europe offers the EU an excellent opportunity to underpin its democratic legitimacy with an own and distinct political philosophy and to show the world that it is possible for regional organisations to function on a democratic footing! As the UN and the EU have both been established ‘to save succeeding generations from the scourge of war’, the emergence of the EU as a new subject of international law may well be regarded by both international organisations as a symbol of progress and hope.

 

To the memory of Peter Kooijmans, Judge in the ICJ from 1997 to 2006, who taught me European Law.

The suggestions, put forward in this blog, are based on J. Hoeksma, The EU: A Democratic Union of Democratic States, to be published at the start of the Conference on the Future of Europe by Wolf Legal Publishers.

[1] Kamerstukken II 2007/08, 31 384 (R 1850), nr 4

[2] P. Magnette, What is the European Union?, London 2005

[3] A. Rosas and L. Armati, EU Constitutional Law, Oxford 2018

[4] EuropeChats Episode 1, What is the EUwww.tepsa.eu. The S-G is known in academic circles as the author of an authoritative analysis of the Maastricht Treaty. J. Cloos, Le traité de Maastricht, Bruxelles 1994

[5] Kapteyn en VerLoren van Themaat, Inleiding in het recht van de Europese Gemeenschappen, Deventer 1970

[6] J. Hoeksma, European Democracy, Tilburg 2019

[7] D. Schoenmaker, The Sovereign behind the Euro, in: J. Hoeksma and D. Schoenmaker, A Polity called EU, Oisterwijk 2011

[8] P.A. Serrano de Haro, The Participation of the EU in the Work of the UN: General Assembly Resolution 65/276, CLEER Working Paper 2012/4

[9] M. Teló, "The EU as an Incipient Civilian Power, A Systemic Approach", in: Politique Européenne, 2007/2, nr 22