The year 2021 may well go down in the history of international law as the year in which the EU not only emerged as a democratic international organisation but has been perceived as such by the global democratic community too. This development warrants the notification of the observation of a new subject of international law and allows for the new phenomenon to be described as a union of democratic states which also constitutes a democracy of its own.
Guest blog by Jaap Hoeksma.
The Treaties on European Union
The finding that the European Union is a new subject of international law, which may be identified as a democratic international organisation, is based upon a legal analysis of the EU treaties on the one hand and on the perception of the Union by the international community on the other hand.
The preliminary juridical investigation to be elaborated in the present blog starts with an analysis of article 1 of the Treaty of Lisbon, which came to replace the rejected Constitution for Europe in 2007. The article asserts in an unambiguous way that the treaty establishes a union of states, in which decisions are taken as openly as possible and as closely as possible to the citizen. This opening statement contains a clear indication concerning the nature of the EU. The aim of article 1 of the Treaty on European Union (TEU) can only be realised if both the Member States and the Union are functioning on a democratic footing. The principle that decisions in the Union are taken as closely as possible to the citizens implies that democratic control must be exercised at all levels of governance in the Union, from local and municipal councils via regional assemblies to national parliaments and the European parliament.
This declaration of principle is substantiated by article 2, which enumerates the values on which the Union is founded: human dignity, freedom, democracy, equality, the rule of law and respect for human rights. The value of democracy has been elaborated both in relation to the Union and with respect to the Member States. Title II TEU contains the provisions on the democratic principles of the Union, while the articles 7 and 49 are setting standards for the democratic governance of the Member States. According to article 49 any European state which respects the values referred to in article 2 and which is committed to promoting them may apply for EU membership. Article 7 TEU is meant to ensure enduring respect for these values by the Member States and provides a procedure to assist faltering Member States in restoring the required commitment to the EU’s values.
The primordial importance of the rule of law is accentuated by article 19 TEU, which attributes the task of ensuring the observation of the law of the Union in the interpretation and application of the Treaties to the Court of Justice of the European Union.
In its functioning the EU is bound by the provisions of articles 4 and 5 TEU. Article 4 posits that competences not conferred upon the Union in the Treaties remain with the Member States and prescribes the Union to respect the essential State functions of its constituent states. Article 5 adds that the limits of the Union’s competences are determined by the principles of subsidiarity and proportionality. In the field of foreign affairs, the Union may act on behalf of the Member States in areas where it has been given exclusive competence. The Union acts in such cases in its own name and not on behalf of the Member States. (As the relationship between the EU and its Member States in this area presents researchers and practitioners with the most sophisticated questions of interpretation, a detailed analysis would be beyond the scope of this blog.)
This concise analysis of the legal identity of the European Union as construed by the current treaties inevitably leads to the conclusion that the EU does not meet the criteria of either of the two subjects of international law referred to in the Charter of the United Nations. Although it may be argued that the EU fulfils the conditions for recognition of statehood as formulated by the 1933 Montevideo Convention on the Rights and Duties of States, the Union lacks the will to become a traditional ‘Sovereign State’. Article 4 TEU leaves no room for any doubt whatsoever that the EU has to respect the sovereignty, the territorial integrity and the essential state functions of its Member States.
The arguments against the qualification of the EU as a union of states or international organisation are even more compelling. The main and most obvious difference between international organisations and the EU lies in the citizenship of the Union. Article 9 TEU says in plain terms that citizenship of the Union shall be additional to and not replace national citizenship. By extension it may be submitted that, whereas international organisations may have parliamentary assemblies, consisting of parliamentarians from the respective member states, the citizens of the EU are represented at Union level by their directly elected European Parliament. Article 14 (2) prescribes that the European Parliament shall be composed of representatives of the Union’s citizens. In short, international organisations are by definition undemocratic, whereas the EU works as a European democracy.
Another difference between the two subjects of comparison is that unions of states are based on the principle of unanimity and that the participating states have the right of veto, while decisions in the EU are made in ever wider fields by qualified majority voting. As a rule, moreover, international organisations do not have single currencies. The common denominator underlying these differences is that unions of states are based on the principle that the participating countries retain absolute sovereignty, whereas the EU is built on the practice of shared sovereignty.
The identification of the object of investigation
As a result of this concise legal investigation, it may be submitted on the one hand that the EU is not a sovereign state and on the other hand that its member states have voluntarily ceased to exercise absolute sovereignty. As this configuration is not covered by international law, scholars and politicians have agreed to refer to the EU with an empty term as an organisation sui generis. The mere fact, however, that there are no academic terms available for the identification of the EU as a democratic polity in international law, does not mean that the Union should not exist. On the contrary, this paradoxical situation obliges the academic community to adapt its theories and terminology to existing realities.
As names are supposed to reflect the essence of the object of description, it may be helpful to accentuate the distinct characteristics of the European Union as it is. Regrettably, the institutions of the EU have failed so far to enlighten its citizens and the world at large about this delicate matter. On the official website, known as the Europaserver, and in its written documentation the EU presents itself as ‘a unique economic and political union between 27 European countries’. The only distinction from other regional organisations, which emerges from this description, lies in the adjective ‘European’. Other regional organisations, such as the African Union, Mercosur, the Council of Europe or ASEAN may be portrayed as economic and political unions as well.
The present analysis, however, offers the reader a clear description of the distinctive qualities of the EU in comparison with other international organisations. While the goals of the EU are more ambitious than those of any other regional organisation, article 2 TEU also enumerates the values of the Union. Actually, the European Union is the only international organisation which is composed of states and citizens and which aspires to respect the principles of democracy and the rule of law. As the decisive difference between the EU and other international and regional organisations lies in its construction as a constitutional democracy, the Union may be identified as a democratic international organisation (DIO). In turn, a democratic international organisation can be defined for the purposes of international law as a ‘union of democratic states, which also constitutes a democracy of its own’.
In the domain of foreign affairs the EU distinguishes itself from other regional organisations by its external competences and diplomatic services. The Treaty on the Functioning of the European Union (TFEU) grants the Union exclusive competences in specific fields, notably trade policy and development cooperation and humanitarian aid, while it contains provisions for shared competence in a specified number of other areas. In consequence, the EU has an own diplomatic service, the European External Actions Service, which is headed by a High Representative for Foreign Affairs and Security Policy and which has representations and missions in foreign countries and with international organisations all over the world. In a similar way as EU citizenship does not replace but complements the national citizenship of the Member States, the exercise of competences by the diplomatic services of the EU does not result in the Member States being prevented from exercising theirs (art 4, para 4, TFEU). Although these arrangements may lead to intricate legal complications, the EU and the Member States have gained considerable experience in these domains since the entry into force of the Treaty of Lisbon on 1 December 2009.
The specific character of the European Union as opposed to states on the one hand and international organisations on the other hand has been acknowledged by the General Assembly of the United Nations in its resolution 65/267 of 3 May 2011. Seen from the theoretical perspective, the resolution accentuates the dual character of the EU. While each of the 27 Member States of the EU is a sovereign member of the United Nations and France has a permanent seat in the Security Council, the EU per se enjoys enhanced observer status and has the right to address the General Assembly during its annual meeting. Moreover, the EU is a full member of the FAO and the WTO alongside its own member states. It may therefore be safely assumed that the United Nations recognises the unique construction of the EU as a distinct polity in international law.
The Summit for Democracy, which the American President Biden initiated on 9 and 10 December 2021 and which is to continue in the course of 2022, provides students of international law with yet another instance of the increasing global awareness of the EU’s distinct character as a democratic polity in international law. The aim of the Summit is ‘to make clear that renewing democracy in the United States and around the world is essential to meeting the unprecedented challenges of our time (www.state.gov/summit-for-democracy). As convenor of this summit on the strengthening of democracy, President Biden invited 111 participants to attend, including 26 of the 27 EU member states as well as the EU per se. Actually, the European Union was the only international organisation to have been welcomed at the Summit and will be the only international organisation to contribute to the year of action, which is to follow. In fact, the EU plays a prominent role in the process as Commission President Von der Leyen chaired a Leader’s Session, during which she emphasized that ‘each democracy is unique’.
The relevance of the Summit from the theoretical viewpoint is that President Biden invited 26 of the 27 EU Member States as well as the Union per se to contribute to the debate about strengthening democracy. In line with the approach of the General Assembly of the UN, President Biden distinguishes between the EU Member States on the one hand and the EU as an autonomous entity on the other hand. The fact that he did not extend an invitation to EU Member State Hungary, underlines that his intention was to welcome democracies. In consequence, Biden’s decision to invite the EU for this global meeting of democracies implies that he perceives and recognises the EU as a democratic international organisation.
The purpose of this blog is to submit evidence for the conclusion that the European Union has evolved to a new subject of international law, which can be identified with a new legal term as a democratic international organisation. To attain this goal, it has been demonstrated that the European polity has developed over the decades from a ‘Union of democratic States’, as it was identified by the European Council in 1973, to a ‘Union of democratic States, which also constitutes a democracy of its own’. In other words, the 2007 Lisbon Treaty warrants the identification of the EU as a democratic union of democratic states.
This internal evolution has been acknowledged by the General Assembly of the United Nations in its Resolution 65/267 of 3 May 2011 and implicitly recognised by the American President Biden and the participating states in the Summit for Democracy, which was launched on 9 and 10 December 2021. While the United States of America organised the Summit as a democratic federal state, the EU participated as a democratic international organisation.
The conclusion that the EU is a democratic international organisation, is not merely of academic interest. It is of great practical relevance for the EU both with respect to the current Conference on the Future of Europa and in connection with the democratic backlash, which caused President Biden’s refusal to invite Hungary to participate in the Summit for Democracy. As these matters fall outside the scope of the present blog, it may be suggested briefly that the EU should overcome the outdated stalemate in the discussion about the nature of the EU by embracing its identity as a democratic international organisation and by concentrating on the improvement of its democratic functioning. Such an endeavour will be indispensable for the EU in defending its present democratic gains against efforts to undermine the institutional architecture of the EU as a democratic international organisation from within. In the same vein, the EU should also acquire a theory underpinning the functioning of the Union as a European democracy and informing its further evolution, notably with respect to the viability of the right of veto in the domain of international relations. There is no reason whatsoever for the EU to be ashamed of its achievements or to display false modesty with respect to its democratic credentials. On the contrary, Europeans may take pride in the fact that the EU has reached its constitutional destination as a democratic international organisation and that, in doing so, the Union contributes to the realisation of the Kantian ideal of a humane global order.