L’Europe : un chemin unique au monde
Whilst acknowledging that “when the ECSC was created, the signatory states had a sort of partial federal state in mind, limited to sovereign decision-making powers over the two resources that were crucial to the war effort”, Gret Haller sets out in this essay to describe the unique nature of European construction and its current avatar: the European Union. The holder of a PhD in law and former Swiss ambassador to the Council of Europe, she develops a fascinating legal and rationalist argument, notwithstanding a disembodied quality (our translation throughout).
“Although the question of the form and nature of the EU, which is more or less that of a State, in other words its statehood, has been raised time and again, this boils down to the definition of the State. In democratic states in which the rule of law prevails, law comes from politics and political procedures respect clear legal rules, in such a way that law and politics mutually shape each other. In the European Union, this interdependence goes beyond the national framework, bringing about new challenges for politics and law, forced to transcend the traditional organisation of States. In practice, therefore, the creation of law becomes transnational and gives rise to a new category, European law. This is distinct from conventional international law because of its supranational quality”, the author writes. She goes on to explain that “the transnational element occupies a particular space in the transition from nation-state to member state. Unquestionably, EU law can be described as supranational, but it is created in a transnational process. One could therefore say that the transition from nation-state to member state is the political equivalent to the transition from a national constitutional organisation to a transnational constitutional organisation. The adjective supranational legally describes a higher level on the vertical axis and describes the nature of European law. Three EU bodies are supranational: the European Parliament, the European Commission and the European Court of Justice. The term transnational, for its part, refers to a horizontal axis on which the member states are associated with the other member states. Community law is supranational because it has the same form and the same function as law on the national level, but at a higher level. For the political constitutional organisation of the EU, however, this adjective would still appear to be a problem because, from the political point of view, the European Union is a completely unprecedented creation, a transnational community. If one were to describe this entity as supranational, this would imply that it is something politically similar to a nation-state at a higher level, which is not in fact the case”.
“European integration brings a unique new dimension to the tried-and-tested formula of creating democratic nation-states. Earlier, following the disappearance of the common origin pillar, it became vital to create ‘civic solidarity between people from different countries’. But the framework of reference of the nation-state limited this solidarity towards the outside – although the declaration of human and citizens’ rights of 1789, which is still applicable today, refers explicitly to ‘man’ and the ‘citizen’, namely that one of its components transcends national borders. The aggressive behaviour of many nation-states towards the exterior, culminating at global level with colonialism and, in Europe, the wars of the 20th century, crystallises borders and often makes the people living on the other side of them into enemies. The new dimension born of European integration will not create a European people. The men and women of Europe remain strangers in each other’s’ eyes: their cohesion is not based on their similarities, resemblance to each other or cultural proximity. This new dimension is different in that the citizens of other nation-states, whilst still being strangers, are no longer considered enemies by dint of the simple fact of being from another country, but as different people, to be respected”, Haller points out.
“The law is the fundamental element that cements the European Union”, the author states, stressing that “European law needs democratic legitimacy”. She goes on to explain that “this is why the European Union is not just a legal union, but also a political project that can be described by analogy as a political union. Because one of the two sources of legitimacy stems from national politics, the European political citizen must be able to have certainty that the principles of democracy and the rule of law will be respected in all member states. This, again, is a question of mutual trust between strangers and, if only for this reason, transnational trust is an absolute prerequisite of European integration. Trust in people from other countries is therefore equivalent to trust in the system […]. Consequently, when certain member states today are no longer sure that they wish to preserve the fundamental principles of democracy and the rule of law, they are calling into question this trust in the system”.
“What we call the European judicial community is based on mutual trust between the member states. They have to be able to rely on the fact that everybody respects the common values set out in article 2 of the EU Treaty, which they have all recognised. But this trust is not based on fusion. Quite the reverse; all parties can be confident that they can retain all the things that make them different, and it is precisely for this reason that they can agree politically. As for the community of law, mutual trust is the basis for the political community. Transnational democracy also needs distance to form a transversal entity. This is why narratives that attempt on occasion to imbue European Union with emotional origins are a huge problem. They overlook a central aspect that differentiates the European project from the formation of nation-states in the 19th century. The weaving of tall tales about the European Union aims to give law and politics an identity which the project not only does not need, but which could even do it harm. It stands to reason that nations abound with myths and, therefore, tall tales. But the same thing should not be attempted with the European Union. Because if the EU extracts law and politics from the receptacle of the nation-state, it leaves the nation at the level of the member states”, she argues.
“A closer look at the external borders of the EU reveals a decisive difference between international law and EU law. A handful of exceptions notwithstanding, the international treaties cannot be reflected in acts the application of which can be imposed upon citizens by public powers. The reverse is true for EU law: its purpose is to be applied by the public powers and must be democratically legitimated by virtue of the political participation of the individual. The EU imparts this right of participation upon the citizens of the member states and, therefore, upon a territorial criterion. This territorial delimitation implies that European law can be democratised, which is not the case with international law in this area. The citizens of the European Union are part of the political community; membership of this community and, consequently, rights of democratic participation are based on a territorial criterion rather than the simple humanity to which human rights are bound under international law. This is why the EU is not a cosmopolitan project. It is the territorially defined nature of the democratic law that sets the European Union apart from all other alliances under international law and which has been consolidated in the dual concept of legitimacy”, Haller adds.
“A great many of the movements and parties that seek to pick European integration apart started by calling for their country to leave the European Union. In light of the experience of the United Kingdom and Brexit, which helped to bring the remaining 27 states close together, such calls have been largely abandoned. Now, remaining in the EU, they are insistent upon weakening it from the inside, a strategy that comes in many different guises. What all these movements have in common is that they consider European integration, at the stage it has reached today, to be a betrayal of the collective identity of their national citizens. Their resistance therefore strikes at what constitutes the fundamental structure of the European Union, namely the extension of the rule of law and democracy beyond the nation-state”, the author goes on to argue.
She also considers that Russia’s invasion of Ukraine in February 2022 will have a long-term effect on the “image of a human being” in Europe: “once again, the European states are pulling together, because the origin of this image appeals to the conscience of Europeans. Up until the mid-20th century, the historical norm was that the nation-state is inevitably born in violence. The very existence of the European Union, the consequence of the trauma of war in the first half of the 20th century, is no exception to this iron law. European integration, however, has been the world’s first exception to it. Nation-states come together voluntarily and without violence in a common organisation at a higher level. They break the rules once again […] when some of the new nation-states or reformed nation-states are welcomed into the EU without violence following the collapse of the Soviet Union. Russia is manifestly struggling to come to terms with this break from the old normal caused by the disappearance of the USSR. In 2014, it annexed Crimea in a return to the old way of doing things, which, at the time, did not massively undermine the image of the human being in Europe. But Russia’s attack on Ukraine triggered the European memory of the mechanism of war as a tool to shift state borders and thus, in general, to create a nation-state. Representations of humans are formed slowly and are abandoned just as slowly. But they seem to comprise a sort of long collective memory. The resurgence on the European continent of this ancestral normality, in which nation-states are born in violence, has probably triggered the trauma that led to this break with the norm and the creation of the European Union. From this point of view, the attack on Ukraine also calls the fundamental structure of the European Union into question. It radically challenges the voluntary nature and non-violence that guided the creation of a collective entity at supranational level by European nation-states”.
If “the conception of the United States was based on a religious idea of the elected people of God”, the author points out that in Europe, “particularly since the French Revolution, the importance of religion has declined sharply and so too, therefore, has the old idea of divine election as it existed that the time of the Crusades”. “That Revolution, however, used a modified idea of election and transposed it to the nation. The only difference is that it is no longer a divine election, but a feeling of national superiority that is reflected in warfare. Only European integration has freed the nation from these representations, such that it no longer needs to be at war to prove its superiority. Retrospectively, we could conclude from this that the dangerous dimension of the concept of nation has always skirted very closely round religious ideas, as it still does to this day”, Haller observes.
She concludes by stating that “the days when Europe can count on the military protection of the United States are drawing to a close, for two reasons. The first lies in the West, in the inexorable reorientation of the United States towards the Pacific. The other lies in the East. The first signs of this go back to the annexation of Crimea by Russia: the European Union must defend its revolutionary accomplishments to guarantee peace, if necessary by recourse to means it had long thought obsolete. The war in Ukraine makes this scenario into a certainty. Europe must take its own defence in hand, reinforce cooperation in this field and unite its forces. The European Union and its members will play a critical role in this process. The Franco-German cooperation will undoubtedly evolve into a greater equilibrium. Germany and France – one by virtue of its economic leadership, the other as the only nuclear power of the EU – will lead this work. However, the pooling of defence forces cannot be done without including the United Kingdom. At institutional level, the EU will therefore have new challenges to intend with. It will need to invent methods to allow it to federate forces beyond its borders”. This is the intent of the new defence partnership signed in London on 19 May, although the project is only in its initial stages. (Olivier Jehin)
Gret Haller. L’Europe : un chemin unique au monde – La culture politique dans l’Union européenne (available in French only). Fondation Jean Monnet. Les Cahiers rouges ISSN: 1661-8955. 135 pages. This essay may be downloaded free of charge from the Foundation’s website: https://aeur.eu/f/h2j