The New EU: Definitely a Superstate

From The Brussells Journal

By Michael Huntsman

Across Europe there are plenty of people who care not for the European Union’s appetite for unaccountable power. Some want to extract their countries from the Union in order to restore real power and independence to their country. Some simply want to halt the constant one-way cession of power to the Union. Others just want to have their say.

With the latest, and arguably the most far-reaching, power-grab, the new Union Constitution effected by the Treaty of Lisbon, the political élites of almost every member state have concluded that they know what the right answer to the question is and have determined that they are not, under any circumstances, going to allow their electorates to give the ‘wrong’ answer to that question.

Thus, without your say-so or mine, the EU is to be given all the institutions which, in customary international law, are recognized as those which identify a state as independent and sovereign. If the EU opts to exercise power in the manner of a sovereign independent state, that presages the subsuming into what is now to be called, simply, “The Union” the twenty-seven member states and their powers.

To those of you who doubt so bold a claim, I recommend that you look no further than the Montevideo Convention on the Rights and Duties of States, a treaty signed at Montevideo, Uruguay on December 26, 1933, at the Seventh International Conference of American States. Although signed by only nineteen Latin American and North American States, the criteria it laid down for the identification of what is and what is not a sovereign independent state are now accepted in customary international law as the criteria for identifying such states.

What are those criteria?:

ARTICLE 1

The state as a person of international law should possess the following qualifications:

(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with the other states.

Importantly these criteria were considered by a commission set up by the European Union at the time of the dissolution of the former Yugoslavia. This was the Arbitration Commission of the Peace Conference on the Former Yugoslavia, better known as “The Badinter Commission” which in its Opinion No. 1 laid out what must now be regarded as the EU’s opinion on the issue:

“The President of the Arbitration Committee received the following letter from Lord Carrington, President of the Conference on Yugoslavia, on 20 November 1991:

We find ourselves with a major legal question.

Serbia considers that those Republics which have declared or would declare themselves independent or sovereign have seceded or would secede from the SFRY which would otherwise continue to exist.

Other Republics on the contrary consider that there is no question of secession, but the question is one of a disintegration or breaking-up of the SFRY as the result of the concurring will of a number of Republics. They consider that the six Republics are to be considered equal successors to the SFRY, without any of them or group of them being able to claim to be the continuation thereof.

I should like the Arbitration Committee to consider the matter in order to formulate any opinion or recommendation which it might deem useful.

The Arbitration Committee has been apprised of the memoranda and documents communicated respectively by the Republics of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia, and by the President of the collegiate Presidency of the SFRY.

1) The Committee considers:

a) that the answer to the question should be based on the principles of public international law which serve to define the conditions on which an entity constitutes a state; that in this respect, the existence or disappearance of the state is a question of fact; that the effects of recognition by other states are purely declaratory;

b) that the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty;

c) that, for the purpose of applying these criteria, the form of internal political organization and the constitutional provisions are mere facts, although it is necessary to take them into consideration in order to determine the Government’s way over the population and the territory;

d) that in the case of a federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the state implies that the federal organs represent the components of the Federation and wield effective power; […].”

Turning now to how these criteria are fulfilled by the new EU Constitution as embodied by the Treaty of Lisbon, there can be no dispute whatsoever concerning the EU’s possession of a permanent population and a well-defined territory.

Does the EU, then, fulfil criterion 3 of the Montevideo Convention (supra)?

Article 9 of the Treaty of Lisbon sets out the core Institutions of the Union: The European Parliament, The European Council, The Council, The European Commission, The Court of Justice of the European Union, The European Central Bank and the Court of Auditors.

Looking at the powers that each of these has, who can seriously argue but that these amount to the institutions of government, providing, as they do the over-arching institutions that make up the Legislative, Executive and Judiciary branches that all would say go to make up an independent nation?

Turning now to Criterion No. 4, one only has to look at three things.

Firstly the extent to which the Treaty of Lisbon is taken up with the issue of a common foreign and security policy (into which is subsumed, by Article 27 (1), the ‘common security and defence policy’ of the Union): Articles 10a to 31 are taken up entirely with the scope of the common foreign and security policy, which indicates the fundamental importance that this aspect has in the context of the whole Constitution.

Secondly, the fact that, by virtue of Article 22:

The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.

Thirdly the fact that by Article 32 the Union arrogates to itself ‘legal personality’.

Given the criteria I have set out, can anyone set out a counter argument as to why, from the day the treaty comes into force, the European Union is not, at the very least, potentially, a Sovereign Independent State?

Can anyone argue seriously that the nature of the Union once this comes into force does not fall squarely within the description given by the Badinter Commission at (d) above? Not least as concerns the phrase concerning the wielding of effective power?

Lest anyone be disposed to rely on that old chestnut, the fact that there is no European Army, the possession of a military is no bar to Statehood: look at, say Costa Rica or Liechtenstein, amongst others, whose lack of military forces is no bar to their independent statehood.

I have set this out because the “Union” which it is proposed shall come into existence in 2009 indeed has all the hallmarks of a Sovereign Independent State with powers superior to all of its component member states.

It is the creation of such an entity that the political elites of twenty-six out of the twenty-seven member states have decided will not for one second be the subject of proper democratic discussion, debate and finally any sort of vote designed to secure the whole-hearted consent of the peoples of Europe to it.

Why? Because these arrogant people know we would never for one moment consent to such a thing if told the truth and given a vote on it.

What they should remember, however, is that they only rule by our consent and if they opt to rule without our consent, then they must be ready to accept the consequences of that decision which may be to face the just and righteous wrath of the people when they realize that a despotic tyranny, of which they are but impotent subjects, has been created by stealth.

As we embark on this crucial year of 2008, it is the creation of this tyranny which all free men must resist with all their might and political acumen this year and thereafter. Each of us may just be a still small voice: but together we can be a crescendo.


More on this topic:

These Boots Are Gonna Walk All Over You, 13 December 2007