Year XLIX, 2007, Number 3, Page 210

 

 

Globalisation, International Law, People and the State
 
THOMAS SCHMITZ
 
 
I. The World Order of States.
 
Let us imagine that a group of aliens (law professors from another galaxy) were to visit Earth, wanting to explore its legal system. They would soon discover that the world order of this planet rests upon a fundamental, formal principle which is valid in every corner of the globe and nowhere called seriously into question: the principle of the territorial state. Even in the era of globalisation, in legal terms humanity is not united but divided into approximately 200 distinct communities (peoples). These establish independent (sovereign) governing entities which are known as states. Each state is allocated a delimited portion of the Earth’s surface (state territory) over which it has exclusive power to rule (state power), but to which its power is generally restricted. In this rudimentary world order based on public international law, the concept of public power refers essentially to the rule of a sovereign governing entity over the territory it controls, that is to say of a state over its state territory. There might be other authorities exercising public power within a territory, but sovereign public power — not derived and not dependent — can be held only by the states. In addition, every state — but only a state — may determine its own organisation and may exercise or delegate its public power just as it likes, subject only to some minor restrictions imposed by jus cogens norms in public international law.
The legal term for this special position of the state is sovereignty. Sovereignty is not a condition but a legal consequence of the status of state, as this is understood in public international law. It is the underived and independent, unlimited legal capacity to act in internal and foreign affairs. It is not affected by the process of supranational integration until such time —should this time come — as the states involved formally transfer their statehood to the supranational organisation of which they have become members, which then will replace them as states. Sovereignty is absolute; as conceived by international law, it is inseparable from statehood. Therefore, it can only be transferred part and parcel with statehood. Some colleagues in the field of European law have developed ideas of “shared”, “divided” or “pending” sovereignty, but these ideas are just dreams. Dreams which, by the way, the Europeans could not realise on their own because they would first have to change the foundations of the existing legal world order. The world order of states might seem to be outdated, even ridiculous, in the twenty-first century, but it is still in force. So our alien law researchers will be disappointed: the blue planet is not the homogenous and coherent beauty it looks to be from afar.
 
II. The Nation-State and the Challenge Globalisation and Geo-regionalisation.
 
For a long time, the subdivision of Earth into states (based mainly on the ideological concept of the nation-state) was accompanied by a mindset that revolved entirely around the individual nation-state. Each state concentrated on solving its own problems on its own. Responsible cooperation with other states developed only sluggishly during the second half of the twentieth century, as the increasingly global nature of the single problems became clear. Today, it is obvious that the nation-state, with few exceptions, is out of its depth in a growing number of areas. In fact, the list of problems that the individual state is no longer equipped to solve is overwhelming: global trade, global communications, the development of new technologies and technological infrastructures, the prevention of global epidemics, pollution, migration, organised crime, worldwide terrorism and now the threat of climate change. To fulfil its functions as successfully as the traditional nation-state of the nineteenth and early twentieth centuries did, the state of the twenty-first century probably needs to have at least 300 to 400 million inhabitants.
 
III. The Rise of a Supranational Form of Organisation in Europe.
 
Although, at the end of the Second World War, many Europeans initially thought that the creation of a great European federal state, along the lines of the American model, would be the right response to the new challenges the continent faced, in the end, their attachment to the old ideology of the sovereign nation-state proved too strong. So the West European nation-states sought another solution: they founded supranational organisations to which they transferred sovereign rights, thereby enabling them to exercise public power directly over the citizens and public authorities in the various member states. Three of these, the European Communities, being related to one another, were also designed to promote the general integration of their member states. They were reformed several times, combining more and more intensely the supranational and the federal elements. The Treaty of Maastricht transformed them into the European Union, adding two further “pillars” of intergovernmental cooperation and making it very difficult to understand the true nature of the organisation. Given its particular characteristics,[1] I prefer to classify the European Union as a new kind of state community, which it is appropriate to call a supranational union, and which can be defined as follows: a supranational union is an international organisation founded for the purpose of promoting integration which tends to evolve continuously, is designed to carry out any kind of task, and indeed accomplishes its integrative function primarily by carrying out a wide variety of tasks in the public sphere itself, exercising public power in its member states.[2] The supranational union is a novel, independent, legally distinct form of organisation founded on public international law. It has developed as a specific form of organisation, designed for the transition from the nation-state to a possible future civilisation state (Kulturkreis-Staat).[3] It is situated in the triangle between international organisation, confederation and federal state. Its dual nature as an entity which is not a state but resembles a state has manifold consequences in the fields of law and political theory. For example, who is “the people” in this state-like but non-state union?
 
IV. The Concepts of People, Sovereignty of the People and Democracy in the Process of Supranational Integration.
 
From the beginning, democracy was a sensitive issue in the European process of supranational integration. According to Western political theory, or the “general theory of the state” (Allgemeine Staatslehre, théorie générale de l’Etat), every exercise of public power needs to be democratically legitimised, which is to say linked to the people. But to what people or peoples, and in what way? According to the general theory of the state, sovereignty within the state, which must be clearly distinguished from the sovereignty of the state, must lie with the people. But how can this concept be applied to a non-state but state-like union? More than a hundred publications dealt with these problems in the nineties.[4] I cannot analyse this extensive debate in detail in this short paper, but I would like to present a particular approach.[5]
 
1. The democratic deficit in the process of supranational integration.
 
First, we have to admit that the integration process has created a democratic deficit. During the nineties, many constitutionalists misjudged or underestimated this problem, seeing the European institutions as sufficiently legitimised through the national parliaments and governments. After all, there exists the unbroken “chain of legitimisation” between the institutions and the citizens that is traditionally deemed necessary. However, in a democratic governing entity, supranational union or state, what is important is not just the existence but also the strength of the democratic legitimacy, and this depends on the degree of mediation. The decision taken by a directly elected parliament enjoys greater legitimacy than that of a government, which is linked only indirectly to the will of the people. This is the reason why most constitutions stipulate that essential political decisions require an act of parliament. Yet the position of the European Parliament remains weak. Even the Treaty establishing a Constitution for Europe would not give it the power to carry through its own proposals against the will of the Commission and the Council. The Council, which is legitimised very indirectly, remains the most powerful institution. Theoretically, the national governments represented in the Council are answerable to the national parliaments. However, given that Council decisions are often the result of complicated negotiations or package deals, as far as I know, in fifty years of European integration there has not been a single case of a national government being brought down because of a position it adopted in the Council. Meanwhile the national parliaments often become nothing more than “executing officers”, merely implementing the will of the governments that, through the Council, is imposed on them. In many cases, the national governments, working together, have taken decisions in the Council that they would not have been able to carry through at home, encountering no, or not much, resistance from the European Parliament. Usually we use the terms “deparliamentarisation” and “governmentalisation” to describe this phenomenon, but we can also call it the rule of governments.
 
2. The need to adapt — not to abandon — the concepts of the general theory of the state in the process of supranational integration.
 
In the attempt to find appropriate solutions to the many problems that accompany European integration, we must not abandon the concepts traditionally found in the general theory of the state, but rather adapt them carefully to the peculiarities of supranational integration. The common idea that the European Union is not and never will be, or must never become, a federal state is dangerous because it provides an easy justification for neglecting, in the integration process, the fundamental European values and ideas. The same is true of the stereotype of the EU as a sui generis entity, which may be seen as nothing other than a capitulation of science. The European Union might be the first entity of its kind but it will not be the last. Already today, with the African Union, there exists an organisation intended, sooner or later, to follow in the EU’s footsteps and become a second supranational union, and there will be others in other parts of the world. It is true that the Union is not a state. But it is close to being a state and therefore as dangerous as a state. When we analyse this situation thoroughly, we find that there could come a point at which it is in the interest of our common values to change from the dynamic form of organisation of the supranational union to the more stable federal state. And we will find that in most cases it is more appropriate to transfer and adapt the ideas that, in the past, were developed for the states, rather than those developed for institutions based on public international law. In short, the general theory of the state needs a new chapter containing a general theory of the supranational union.[6]
 
3. The existence of a people at the level of the European Union.
 
In the general theory of the state, the notion of the “people” plays an important role. Yet even now, on the eve of a European constitution, the idea of a “European people” generates uneasiness. The idea of a transnational people still appears rash — as long as this transnational people does not declare itself a nation (and thereby return to the old concepts). In addition, the idea of a people in the absence of a state as a legal and philosophical phenomenon is not compatible with the traditionally state-orientated way of thinking. Finally, will a European people not compete with — or even replace — the peoples of the member states?
The answer is no, it will not, providing we develop a concept that, in the context of a functional approach, adapts the notion of people to the late-twentieth-century concepts of permeable statehood (offene Staatlichkeit)[7] and supranationality. We have to rid ourselves of the historical, ethnocentric and cultural prejudices created in us by the doctrine of the nation (the cultural nation or Kulturnation). For legal science, what counts is not an ethnological, cultural-anthropological or historical concept, but rather a normative notion of people, deriving from the general theory of the state. “People” is the term for a community of humans that belongs to a given governing entity. Traditionally, for us, the people is the people of a state, that is the community of the citizens of the state who support the state and are responsible for it. As such, it can but does not need to be based on ethnic or cultural homogeneity, a common language or a common history. It is the formal link constituted their common citizenship of the same governing entity that unites individuals as a people. And just as national citizenship unites the citizens of a state as the people of that state, so citizenship of the Union (art. 17 et E,C Treaty) unites the citizens of the Union as the people of the European Union. Hence there is no need to cite the common roots in antiquity, Christianity, the Enlightenment and a 2000-year-old Western culture in order to prove the existence of a European people. However, it seems clear, that for legal science, there is no “European people” as such, only the people of a particular European governing entity. And, to mention another point: at the moment, the Swiss citizens do not belong to that European people, in spite of all their strong ethnical, cultural and historical links with the rest of Europe.
However, even this formal and functional approach cannot entirely forgo material criteria of cohesion. A corrective, of a sociological nature, is indispensable in order to make sure that the notion of people does not become divorced from reality: there has to be the will to live together in the community concerned, and in the case of the European Union this will has already been demonstrated in the democratic procedures for the ratification of the founding and accession treaties.
 
4. The plurality of peoples in the multi-level system of the twenty-frst century: the people of the union, the people of the state and the people of the region.
 
The supporters of the traditional nation-state might feel concerned: if there is a European people, what has happened to the peoples of the member states? As we have seen above, the states have not given up their statehood and their sovereignty is intact. So there is no reason to assume that their peoples have disappeared. However, we have to adapt the general theory of the state to the complex manifestations of public power in the twenty-first century’s multilevel system of government: just as there is a plurality of governing entities fulfilling public tasks at different geographical levels (union, state, federated state/region, municipality etc.), so there is a plurality of peoples. Every governing entity that represents the citizens at its particular level is supported by its own people. The different peoples are imbricated vertically one in another (like Russian dolls), as are their governing entities. Thus, there is a Catalan people within (and not instead of) the Spanish people, a Bavarian people within the German people, and a South Tyrolean people within the Italian people, and all are part of the European people. Principally, each people performs for its particular level the functions that law or legal science assigns to “the people”. We can call this a functional notion of people. The same human being is part of the Catalan and the Spanish, the Bavarian and the German, the South Tyrolean and the Italian people, and finally part of the European people too. And so he will remain in the event of the transformation of the European Union into a European federal state, because in this case it is not the existence but only the status of the various peoples that will change. From the perspective of the functional notion of people, the transition to a European statehood appears much less threatening. The plurality of peoples demands a multiple (cumulative) identification of the citizen with the various governing entities to which he belongs, and in fact this is, largely, what already happens in practice.
With regard to the consequences of statehood and sovereignty it is obvious that the different peoples are not totally equal. The legal status of a supranational union, a state and a sub-national governing entity (federal state or region) is different, and this affects the status, role and functions of the respective peoples. For example, the peoples of the state or their representatives can decide to eliminate sub-national entities, thereby eliminating the related peoples as legal entities too. If they dissolve the Union, its people, too, will disappear. Until such time as the European Union is transformed into a European federal state, the European people cannot, by itself, secure its own existence. Therefore, we should not refer to “the people” in general but to the “people of the union” (“peuple d’Union”, “Unionsvolk”), the “people of the state” (“peuple d’Etat”, “Staatsvolk”) or the “people of the region” (“peuple de Région”, “Regionalvolk” / “Landesvolk”).
 
5. The capacity of the European people to provide democratic legitimacy.
 
Essentially, as the people of the Union, the community of the citizens of the European Union can perform the same functions at the level of the Union that are performed in a state by the people of the state. The same goes for the peoples of the regions. There is no need to dream up dubious concepts like the “Catalan part of the Spanish people” or the “Bavarian part of the German people” in order to demonstrate the democratic legitimacy of the politics of the Generalitat de Catalunya or the Freistaat Bayern. The capacity to create democratic legitimacy is not a privilege of the peoples of states or of nations. Rather, it is the task of the entire body of citizens who must support and accept responsibility for the decisions of their governing entity. Most founders of democratic theory, such as the Abbé Sieyès for example, would not hesitate to transfer the ideas they developed for the state (in their time, the only important form of organisation) to the new supranational form of organisation.
Language differences certainly do not make democracy impossible but they can be a serious obstacle when it comes to putting it into practice. Complex measures, technical and organisational, are needed in order to ensure a broad democratic debate that overcomes language barriers. Given the availability of modern means of communication, such as multichannel TV and multilingual internet sites, this is not a problem of possibility but of good will. In this regard, the European Union, once a groundbreaker with its multilingual internet server “Europa”, has regressed considerably in the wake of its enlargement.
The existing founding treaties do not exploit the potential of the European people as a source of legitimacy. They do not allow European referenda and they institute a European Parliament which, according to art. 189 EC Treaty, consists “of representatives of the peoples of the States”. While the European Parliament might, in practice, act as though it represents the European people, in theory it does not. The constitutional treaty, however, allows another interpretation. According to its art. 120(2), the future European Parliament shall be composed of “representatives of the Union’s citizens”. In addition, it makes provision for the “citizens’ initiative” [art. 1-47(4)], which must have the support of a million nationals from “a significant number of Member States”.
 
6. The primacy of the democratic legitimisation of European decisions by the European people.
 
The existence of a source of legitimacy at Union level is necessarily reflected in the role played by the peoples of the member states. They retain their significance within their own states and also their capacity to legitimise the Union’s measures. But as mentioned above, what counts is the intensity of the democratic legitimacy conferred. This intensity depends on the degree of mediation but also on the proximity of the events and problems (Sachnähe) to the legitimising people. In democratic theory there exists a principle of the general primacy of the legitimisation by the people of the acting governing entity, given that this people is the community most directly affected, the one best able to come to an appropriate decision, the one most dependent on widespread acceptance of the decision, and also the one that will suffer most in the event of a wrong decision. The risk that particular interests of another geographical level might corrupt the decision, is smaller. The European people and its representatives are the best candidates to pursue a European public interest that is more than just the sum of the particular national interests of the member states.
Therefore the European Parliament, designed to represent the people of the Union, should play a guiding role in the democratic process, including legislative procedures. A stronger participation of the parliaments of the member states, as was proposed by Giscard d’Estaing, might create a complementary source of legitimacy but it does not constitute an alternative to such a guiding role. Furthermore, the introduction of European referenda could increase the European citizens’ awareness of their direct responsibility for the Union. In this regard, the institution of the citizens’ initiative (art. 1-47) is a first step in the right direction.
 
7. The role of the peoples of the member states in the process of supranational integration.
 
In the complex process of supranational integration, the peoples of the states still have an important role to play. Besides their traditional role within their own states they make a complementary contribution to the legitimacy of the Union’s decisions, in particular through the democratic legitimisation of the representatives of the national governments in the Council. Furthermore, the primacy of legitimisation at Union level applies only to the action of the Union but not to its foundation, to the attribution of competences, or to decisions on its fundamental design. These questions are regulated by international treaties between the member states and deeply affect their legal and political status. Therefore, for these basic decisions, legitimisation by the peoples of states, or a double legitimisation, is required.
 
8. The role of the European and national people in the creation of European Constitution.
 
The role of the European and national people in the creation of a European constitution is a particular problem. According to constitutional theory, a democratic constitution must be based on the “pouvoir constituant” of the people; in practice, this is usually guaranteed by a constitutional referendum. However, in a supranational union, this “pouvoir constituant” of the people is not possible: the highest source of law is the founding treaty, and therefore the constitution can only have the legal nature of an international treaty — as in the case of the Treaty establishing a Constitution for Europe. As such it cannot be concluded by the people, neither that of the Union nor those of the member states, given that, in public international law, only the states have treaty-making power. In contrast to the German term Volkerrecht, public international law does not recognise the peoples of the states or the union as subjects endowed with the capacity to act. This means that sovereignty of the people, in the sense of their having ultimate decision-making power, is impossible in a supranational union, due to its international foundations. The states, however, can act on their own and in their own name. They can largely disregard the will both of the peoples of the states and of the people of the Union with regard to whether and how a European constitution should be enacted. Given the outcome of the referenda held in France and the Netherlands in 2005, we must assume that this is precisely what has happened in quite a number of states where the Treaty establishing a Constitution for Europe has been ratified not by a referendum but by an act of parliament.
If we insist on the sovereignty and “pouvoir constituant” of the people, we must give up the European constitutional project, unless it is combined with the foundation of a European federal state. If we do not insist on this, from the perspective of democratic constitutional we must then ensure that the legitimacy of the Union’s constitution is as similar as possible to that of a constitution based on popular constituent power. No deficit of legitimacy that is not absolutely inevitable due to the international character of the Union can be tolerated. This demands that the people of the Union play a dominant role in the political process. First, the representatives of this people must be predominant in the assembly preparing the draft constitution; that was not the case in the European Convention, which had 84 representatives of national and 18 representatives of European institutions (and not a single direct representative of the people). Second, this people must be active participants in a Union-wide, transnational and multilingual constitutional debate, like that which actually accompanied the work of the European Convention. Third, a political decision of the people of the Union in a Union-wide referendum is required. This cannot be replaced but should be accompanied by national referenda in all the member states. Since the enacting of the European constitution affects the status of the states, it must be legitimised by their peoples too. The states should be obliged to amend their constitutions, as far as is necessary, in order to allow the referenda to take place. The best solution would be a double referendum combining the votes taken at national and European level.
The standard procedure that has been chosen for the ratification of the Treaty establishing a Constitution for Europe (see art. IV-447 sect. 1) obviously does not meet these requirements. Therefore, should this Treaty come into force, it will be possible to consider it democratically legitimised in a conventional sense (like any other international treaty) but not a democratic constitution as understood in the context of democratic constitutional theory. It will suffer from a considerable lack of legitimacy. It will, however, not be the first constitution to present this shortcoming.
 
V. Towards Global Democratic Legitimisation in the Era of Globalisation?
 
Can we transfer the ideas set out here to global level? Is it conceivable that globalisation will create not only a global market but also a global people providing democratic legitimacy for a worldwide governing entity?
Initially, answer would seem to be “yes”, but on deeper analysis it turns out to be “no”: what I have been referring to here is the people of an advanced, deeply integrated organisation. The supranational union draws upon a close-knit community of responsibility and solidarity which resembles the community of common destiny (Schicksalsgemeinschaft) evident in the state. Should such an organisation arise at global level, it will have its own, global people. However, this is unlikely to happen over the next century. The numerous international and supranational organisations, including the WTO (and NATO), do not serve the purpose of integration but instead act as specialised tools of their member states, helping the latter to perform their functions as states. The only general global organisation, the United Nations, is not a deeply integrated organisation either. It does not unite the citizens of its member states in a new, global political community. Incidentally, the notion of “people” not only expresses the close ties that exist within the community concerned, but also serves to set the community apart from others — a function which has been important in the nation-states. As long as there are no others in sight, there is no need for that.
So, global international cooperation can be legitimised only indirectly by the peoples of the states, through the national parliaments and governments. And the legitimacy they confer is clearly weak if we consider the high degree of mediation and the fact that many governments represented in international institutions have no democratic legitimacy at all. At the moment, it is hard to imagine that organisations like the UN or the WTO will one day be democratic institutions. We should refrain from trying to apply to them concepts that belong to the general theory of the state, like people and democracy (or even constitution). Because to do so would be to corrupt them — not to adapt them to the conditions of the twenty-first century. The states do not have the monopoly on the concepts of people and democracy; these are, however, concepts reserved for integration-oriented organisations which unite the citizens involved in the integration process in a new political community.


[1] Particular characteristics distinguish the European Union as a governing entity, allowing a new category to be developed within the existing taxonomy. The most important characteristic is the Union’s status as a supranational organisation whose purpose is integration. Selected partners have come together in a long-term, all-embracing union, recognising that it embodies a value with regard to the common future they envisage. The Union performs its integrative function primarily by carrying out tasks in the public sphere through the exercise of supranational public power. It also provides the institutional framework for formalised and institutionalised intergovernmental cooperation, however, and provides a territory for the substantive law through which integration is carried out. As a general organisation based on integration, the Union also provides an adequate conceptual framework for tasks of all kinds from any political sphere. The Union’s dynamic quality distinguishes it both from traditional kinds of international organisation and from the state.
[2] Schmitz, Integration in der Supranationalen Union, Baden-Baden, 2001, p. 163 onwards.
[3] Schmitz (note 2), p. 220 onwards.
[4] See the references at Schmitz (note 2), p. 94 onwards, in particular the works of Kaufmann, Europäische Integration und Demokratieprinzip, Baden-Baden, 1997, and Stentzel, Integrationsziel Parteiendemokratie, Baden-Baden, 2002. See also Augustin, Das Volk der Europäischen Union, Berlin, 2000 (on the question of the existence of a European people).
[5] See also the more detailed presentation in Schmitz, Le peuple européen et son rôle lors d’un acte constituant dans l’Union européenne, RDP 2003, p. 1709 onwards = Das europäische Volk und seine Rolle bei einer Verfassunggebung in der Europäischen Union, Europarecht, 2003, p. 217 onwards.
[6] There are already publications following this line, see in particular von Bogdandy (editor), Europäisches Verfassungsrecht, Heidelberg, 2003; (id.) Supranationaler Föderalismus als Wirklichkeit und Idee einer neuen Herrschaftsform, Baden-Baden, 1999; (id.) “Die Europäische Union als supranationale Föderation”, Integration 1999, p. 95 onwards; (id.) Die europäische Option, Baden-Baden, 1993.
[7] Vogel, Die Verfassungsentscheidung des Grundgesetzes fur eine internationale Zusammenarbeit, Tübingen, 1964, p. 42 onwards; Hobe, Der offene Verfassungsstaat zwischen Souveränität und Interdependenz, Berlin, 1998. Kaufmann, “Integrierte Staatlichkeit als Staatsstrukturprinzip”, Juristenzeitung 1999, p. 814 onwards, even uses the term integrated statehood [integrierte Staatlichkeit].

 

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