Year LXII, 2020, Single Issue, Page 61
The Concept of State
and What It Means for the Process of European Integration*
What Is a State?
In legal terms, a state is a political organisation that holds a monopoly on the use of legitimate force over a certain population, established within a given territory. States, in this sense, came into being as a reaction to the feudal political-juridical system that, strongly decentralised and with political power distributed on the basis of the lord-vassal relationship, had prevailed in Europe since the time of Charlemagne. The formation of these states began at the start of the modern era of history, when the kings (lords) of lands on the edge of the Roman Germanic Empire stopped recognising the supreme authority of the emperor and, helped by a professional, centralised and efficient administrative system, started taking control of certain fundamental aspects of sovereignty, including fiscal power and defence.
The concept of state summarised in the opening sentence of this article has also been incorporated into international law. Article 1 of the Montevideo Convention of 1933, for example, recognises the state “as a person of international law that should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) the capacity to enter into relations with (...) other states”.
For a state to exist, its sovereignty must be manifested both within (internal sovereignty) and outside (external sovereignty) its own borders. Internal sovereignty corresponds to the ability to guarantee, through the adoption of imperative acts, certain fundamental public services within the state territory: the collection of taxes, maintenance of public order, administration of justice, implementation of laws, provision of essential services, minting of coins. External sovereignty, on the other hand, refers to a state’s ability to be independent of other states. In today’s world, of course, this cannot mean the pursuit of self-sufficiency and the closure of state borders; instead, it must be understood as the state’s ability to participate in the process of globalisation on its own terms, choosing how, to what extent, and with which other sovereign subjects it wishes to enter into agreements and cooperate.
After this brief outline of the nature of state sovereignty, it is worth examining the features of true state sovereignty. First of all, state sovereignty is original, in the sense that the state’s legal system is not born of any other system, but arises from an act of self-determination. The state’s constitution is therefore a Grundnorm, a standard that needs no justification and from which all other laws applicable within the state derive. Second, state sovereignty has to be exclusive, or as Jean Bodin put it, summa potestas superiorem non recognoscens. This means that a state can prevent any external entity, public or private, from exercising its functions within the state’s own borders. Accordingly, although this “rule” is less easily applied in today’s globalised world, sovereign states can, should be it necessary, prohibit any kind of external interference in the exercise of their power within their own territories. Finally, state sovereignty must be effective, in the sense that failed states are, by definition, ones that have proven unable to exercise their sovereign powers over their own territory. Recognition by other governments does not influence the birth of a new state, except insofar as the establishment of political and legal relations with other countries can help a new state to consolidate its (external) sovereignty.
In the light of this introduction, let us now examine the question of the relevance of the concept of state to the process of European integration.
In political and academic settings there has, notoriously, been much debate over whether it might be possible to create European federation without a true state. In the same way, it has been argued that, following Maastricht and the introduction of the single currency, the Union has achieved a virtually stable, and definitive, level of unity. But these ideas are dangerous mystifications whose overcoming demands, first of all, that we clarify the legal nature of today’s EU.
Why the EU Is Not a State.
Although the European Union has achieved a remarkable level of integration and represents, for its member states, a vital guarantee of well-being and progress, it is currently not a state, and certainly not a federation; moreover, the level of unity reached through the process of European integration cannot be considered a consolidated and definitive outcome.
From a legal point of view, the EU today is an international organisation, albeit sui generis. Let us consider, then, some of its unusual features, which can make it seem like a state. First of all, it has legal personality, and is thus a subject of both domestic law and international law. It is responsible for key areas of sovereignty, including monetary policy and trade policy. It has an autonomous legal order (i.e., independent of those of the member states and international community) with direct effect and supremacy over national (even national constitutional) law. It is organised in accordance with the principles of the rule of law, democracy and institutional balance.
But, all this notwithstanding, the EU is still an international organisation. It is founded on a treaty between sovereign states, which, in order to pursue certain objectives together, have assigned it specific roles. However, the competences conferred on it remain limited and can be revoked at any time (principle of attribution). In other words, the member states not only have the power to decide, unanimously, to increase or reduce the Union’s competences, they can also decide to dissolve and reorganise it as they wish. Moreover, each single state is free to decide, unilaterally, to leave the organisation (as the UK has done). It is also interesting that the constitutional courts of a number of EU member states argue that the principle of the primacy of EU law can be disregarded in cases where EU law is in conflict with the principle of attribution or with the national constitutional identity (this is a reference to the so-called counter-limits theory). In this sense, the Union is not a sovereign subject born of an act of self-determination, but a subject hetero-determined by its member states, which remain the “masters” of the Treaties and therefore of the EU itself.
In the light of all the above, it is easy to understand some of the structural deficits that currently afflict the EU, and will continue to do so until such time as its legal status is changed.
With the member states jealously holding on to certain key powers (in the fields of taxation and defence, for example), the EU’s first and main structural deficit is a deficit of competence. In particular, because of the strict rules over the size and destination of the EU budget, the Union has limited resources with which to pursue its policies. Europe also has an efficiency deficit, as most key questions have to be decided by the governments acting unanimously. For this reason, in situations where individual countries can potentially veto decisions, national egotisms can prevail, leaving the Union paralysed and incapable of deciding. Finally, since the European Parliament is unable to establish itself as a true co-decision maker alongside the intergovernmental institutions, whenever fundamental issues are under discussion (multiannual financial framework, own resources, foreign policy), the EU also suffers from a democratic deficit. And this, in turn, explains why it is proving so difficult to establish, between the citizens and the European institutions, the direct relationship necessary to legitimise political action by the European Union.
Is It Possible to Create a Federation Without a State?
Following the landmark of Maastricht and the transition from European Community to European Union, it was argued that, although the latter still lacked the characteristics of a sovereign state, a new form of federal government was nevertheless being consolidated, and therefore that the goal of European unity had been achieved. This idea was popular for several reasons. Some have a general fear of the idea of European statehood because they confuse the concept of state with that of nation: in their view, the creation of a federation without a state would prevent the emergence of a form of “European nationalism”. Others are opposed in principle to the idea of “Europe as a power”, or rather to the birth of a new state among the existing states, arguing that this would consolidate the international system and constitute a further obstacle to the process of creating a world federation. According to this view, a federation without a state would instead represent a virtuous model of integration and serve as an example for other regional unification projects and for reform of the United Nations. Other, more substantive arguments have rested on the fact that the EU, just like federal states, functions according to the principle of subsidiarity (art. 5 TEU): on this basis, it has been suggested that national and European institutions already form a multilevel system of government wherein decisions are taken by the level best equipped to solve the citizens’ problems. In actual fact, the international nature of the Union is the very reason the principle of subsidiarity fails to be applied efficiently in the European legal order. Every time there arises a problem that demands a European solution, but also the exercise of those competences jealously guarded by the member states (taxation, internal security, defence, health, education), the European institutions can act only with the unanimous agreement of all the governments. The result, therefore is, at best, a weak compromise solution, but more often a non-decision. Clearly, the subsidiarity principle can only be applied effectively if the vertical division of competences takes place within a fully sovereign subject. In a supra-state framework, on the other hand, it naturally clashes with the need to preserve the national interests of individual member states with respect to the general interests of the Union. In short, although appearances may suggest otherwise, a federation cannot exist without a state; only a confederation can.
Can Democracy Be Built Without a State?
A final point concerns the question of democracy. Over the decades, the EU has sought to create an institutional system that might enable it to respect the democratic principle in the same way as its member states do. This objective was achieved, above all, by the introduction, in 1979, of direct elections of the European Parliament and by the strengthening of the Parliament’s role in decision-making processes. Today, the ordinary legislative procedure is based on the so-called co-decision principle, according to which acts are adopted by the Parliament, as the chamber representing the European citizens, and by the Council, as the chamber representing the states. Furthermore, over the years, various instruments have been introduced to promote “participatory democracy”, such as stakeholder consultations ahead of proposals for legislative acts, the European citizens’ initiative mechanism, the possibility of sending of petitions to the Parliament, and the right of recourse to the European mediator. Finally, there is the Spitzenkandidaten mechanism, which allows European citizens to choose the President of the European Commission through their vote in European Parliament elections.
However, in spite of these undeniable successes, the “democratic deficit” has still not been properly resolved, with the result that the EU today still fails to meet the criteria that it expects its own prospective members to meet. As we have said, all the key decisions relating to the internal functioning of the organisation (reform of the Treaties, own resources, multiannual financial framework) and to the development of certain sensitive policy areas (common foreign and security policy) rest on the unanimity of governments, while the European Parliament is left to play a more or less secondary role.
The weakness, or immaturity, of European democracy does not lie in the absence of a pre-existing “European people”, as argued by the proponents of so-called Volksdemokratie. The fundamental problem is still the internationalist nature of the EU, that is, the fact that its most important decisions do not reflect the will of the people, but rather that of the member states. As long as the national governments continue to be the masters of the Treaties, rather than the citizens, European democracy will remain incomplete. Only the creation of state sovereignty at European level can create a true European people, by sealing, in the form of a constitution, the existence of a community of destiny among European citizens and creating a relationship of trust between the latter and the Union itself, thereby eliminating the mediation role of the national governments.
* Contribution presented during a debate on Federalism and the Concepts of Political Power, Power, Statehood and Sovereignty, held in Florence on 17-18 October 2020 and organised by the Debate Office of the European Federalist Movement.