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The confusion at the heart of the matter: internationalism and supra-nationalism

June 20, 2016

 

One very noticeable aspect of the current referendum debate on EU membership, especially among those actually or nominally on the left, is the basic misunderstanding some have about the very nature of the EU. It is often thought of as an ‘international organisation’ and consequently consistent with the internationalist principles of many on the left. The intention of this post is to drill into this misunderstanding somewhat and hopefully shed some light on why the EU is, in fact, not an internationalist institution at all but something quite different.

 

A common refrain from the left

 

A common refrain heard from some on the centre-left is, ‘…it’s important to co-operate with other countries in Europe. That is what the EU is about and therefore the EU is good’. Or a variant on this, along the lines of ‘…the EU is multi-national, therefore it must be internationalist and I’m internationalist, so it must be a good thing’. This line of thinking is supposed to be so obvious that it has become a basic assumption, un-challengeable in many people’s eyes. It is not an understatement to suggest it has become a deeply embedded political cliché in the debate over the EU. As a result it is not often challenged by anyone. But as Thomas Paine observed:

 

A long habit of not thinking something wrong gives it a superficial appearance of being right’.

 

The ‘conventional view’ of the EU falls squarely into Paine’s description.

 

Whereas, those familiar with the EU, when they encounter this supposedly un-challengeable assumption, are often driven to exclaim: no!!! Arrgghhh!!!! That’s completely wrong! However, beyond the exclamation, the follow-up explanation as to why it is a mistaken perception is generally convoluted. It gets lost in trying to explain:

  • The EU’s byzantine multi-layered governance structures;

  • Numerous Presidents and expensive entourages;

  • Its politburo of Commissioners;

  • The pretend Parliament;

  • The secretive decision-making; and

  • The all powerful ‘juristocracy’ that is the final arbiter on everything ‘Union’.

In the end the audience is completely lost. This is no criticism of those who attempt an explanation. The EU is deliberately designed this way. The exercise of power though complex and obscure structures is the ally of the powerful, the ‘insider’, the anti-democratic.  

 

The near impossibility of understanding how the EU is organised and works, including getting a full grasp of the areas of policy over which it has competence, should tell many people all they need to know about it. Match the EU’s opaqueness with its brazen disregard for democratic decisions (e.g. referendums on the Maastricht Treaty, the Treaty of Nice, the EU Constitution, the Lisbon Treaty and austerity policies in Greece as well as supporting the placing of career apparatchiks in Government in Italy and Greece to enforce austerity policies) and the truly alarming nature of EU governance should be clear to everyone! But the ability of many on the left of the political spectrum not to be alarmed by any of this is remarkable. The EU operates in ways that are the antithesis of everything the left should hold dear and be fighting for. The near absence of concern betrays a worrying apathy (at best) towards democracy and a distressing pessimism about people and politics, which should really only be found on the misanthropic liberal part of the political spectrum, where people are viewed as being barely a few steps from a brutal state of nature and therefore democratic choice ‘needs’ to be curtailed to the point of near meaninglessness. This pessimistic perspective should not be a worldview shared by the heirs to the radical politics that delivered universal suffrage, equality before the law and the welfare state.  

 

The ‘meat and drink’ of the issue

 

The core of the misunderstanding by many on the left is in the failure to realise that there is a categorical difference (about the size of the Pacific Ocean) between internationalism and supra-nationalism. Both are multi-national forms of organisation sure. However, the former is based upon partnership and:

 

‘…the principle[s] of equal rights and self-determination of peoples’. (United Nations, UN Charter)

 

The latter is a system based on a domination-subjugation relationship between the dominant (i.e. the supranational) entity and its multi-national sub-entities.

 

So, let the fun of getting to the bottom of these differences begin!

 

Internationalism: what is it all about?

 

Fun should always begin with some definitions. The definition of internationalism is clear and simple. It means ‘between nations’.

 

Inter-governmentalism is one of the two ways (indeed the primary way) that internationalism manifests itself. The second is non-governmental solidarity between individuals and groups from different countries. For this post however, we’re concerned with the former. And scholar Neil Nugent has helpfully offered a concise description of inter-governmentalism. It is a system:

 

‘…whereby nation states, in situations and conditions they can control, cooperate with one another on matters of common interest’ (Nugent, 2003, pg 423).

 

A noticeable and indeed fundamental characteristic of inter-governmentalism is that it is:

 

‘…a horizontal structure which positions countries on ‘one axis’ as sovereign and equal actors’ (Ruszkowski, 2009, pgs 6-7).

 

Crucially, this means parties engage with each other on an equal footing as self-governing states. Further, the relevant actors are free and able to decide whether they want:

 

‘…to cooperate (or not) and…set the level of cooperation’ (Nugent, 2003, pg 423).

 

The corollary of this freedom to participate is that a state can usually

‘…block any proposal presented by any other parties’ (Nugent, 2003). Or alternatively opt-out or dis-apply an arrangement with the right amount of notice. They can do this at any time, for example, under the terms of Article 54 of the 1969 Vienna Convention on the Law of Treaties or the specific terms of the particular Treaty to which a country is party.

 

International agreements tend to be subservient to domestic law, thereby ensuring domestic parliaments, congresses, courts and laws remain in control as the primary source of authority and mechanisms for imposing laws.  

 

Further, accountability in ongoing inter-governmental institutions is generally ensured because they are:

 

‘…constantly controlled by the governments of the participating countries’ (Ruszkowski, 2009, pgs 6 -7).

 

In summary, because:

  • Parties have the freedom to take part (or not) in an international agreement; and

  • Countries often have the power to veto any possible agreement (as unanimity is often required); and

  • Nations engage with each other on equal terms; and

  • Domestic law tends to retain its primacy; and

  • There is the constant control by Governments over inter-governmental bodies…

…consequently, there is:

 

‘…no loss…of sovereignty…’ as a result of inter-governmental arrangements (Nugent, 2003, pg 475). International engagement on this basis is a win-win for all parties!   

 

Countries vary as to how international law applies domestically. Some countries have ‘monist’ constitutions, while others have ‘dualist’ constitutions. The UK is a 'dualist' constitution. The implications of the latter are that national and international law are understood and treated as separate legal spheres, whereby:

 

‘…international law regulates the relations between states whereas national law regulates the rights and obligations of individuals within states’ (Dixon, 2013, pgs 91-93).

 

Consequently, the terms of any international agreement, signed for example by the UK Government, have to then be passed into domestic law. Only after that will the treaty have any ‘internal’ effect and bind the citizens of that country and be enforceable by that country’s courts (Dixon, 2013, pgs 91-93). This constitutional approach creates additional legitimacy to any agreement.

 

Finally, international agreements tend to be focussed on dealing with a specific issue, creating clear obligations and entitlements in a defined area with a precise set of goals to be achieved. This ensures a further degree of clarity and certainty about what is being signed up to by a state.

 

Supra-nationalism: how is it different?

 

In stark contrast to inter-governmentalism, supra-nationalism is a very different beast! In the words of scholar Janusz Ruszkowski:  

 

‘…the notion of supra-nationalism (or supra-nationality) means that something happens above nations’ (Ruszkowski, 2009, pg 4).

 

The essential relationship between a supra-national entity and its subordinate members is one of domination – subjugation.

 

Sitting above countries, supra-nationalism is predicated on principles which are the opposite of those embodied by internationalism in its inter-governmental form. Where inter-governmentalism emphasises voluntary co-operation and equality among participating parties with the freedom to dis-apply rules if desirable or necessary, supra-nationalism is based upon:

  • Institutions that are separate i.e. are superior in authority to those of the member countries and which have a high degree of autonomy with their own structures, processes and procedures;

  • Compulsion over voluntary consent in the development and implementation of rules, including an inability for subject states to dis-apply rules where desirable or necessary;

  • Measures which ‘go behind the border’ and bind governments, people and organisations directly. As legal scholar Holgar Fleischer has stated:

‘…supranational organisations distinguish themselves from international organizations by the fact that their legal instruments are able to bore through the ‘armour of sovereignty’ of Member States’ (Fleischer, 2010, pg 1671).

  • Inequality among and between subject states and the governing institutions.

Quite clearly, a supra-national entity is a very different creature to an international entity or inter-governmental activity for a number of reasons. A supra-national entity is something much closer to a state in its own right than an international organisation of many states.

 

But, how do we know the European Union is supra-national organisation rather than international organisation? Well, we only need to look at the ambitions of its ‘founding father’ to know that its aim was to be one. As John Monnet described:

 

‘…Ii is absolutely necessary that individual countries…[pass]…their authority to…European federal institutions…understood as an entity’ (Monnet cited in Williams, 2007).

 

Merely going to the source will not be enough for many, however. Proof of what the EU is now, is required, to show that the EU is indeed supra-national.

 

A helpful job has been done by legal academic Stephen Sieberson, who has succinctly outlined some of the key characteristics of the modern day EU. His 'list' illustrates quite effectively why the EU is something 'way beyond' an international organisation and is supra-national. He highlights, how the EU is:

  

‘…state-like, resembling…a national government...[with features such as]…legal personality, legal capacity…privileges and immunities…legislative, executive and judicial institutions…its own budgetary resources…In addition to its internal activities it engages in external relations with other countries. Significantly…many legislative decisions…are made by majority vote…Underscoring the idea of the Union as the central government in a federal set-up is the fact that the Union’s legal acts have primacy over Member State law’ (Sieberson, 2010, pg 926).

 

And:

 

‘…since these characteristics exist separately from their counterparts in the Member State governments, it is fair to describe them as supranational elements in a dual-federal system’ (Sieberson, 2010, pg 926).

 

As Sieberson describes, the EU has a range of legislative, executive and judicial institutions which sit above those of the Member States and have supremacy over the latter. Each has a good deal of autonomy within the wider autonomy of the EU's legal-institutional framework. Subordinate bodies such as Member State parliaments can try and influence that new superior depository of authority but only as one among a number of interested parties acting merely as lobbyists, rather like the thousands of other interest groups in Brussels. No longer are Member State parliaments playing the role of forums for debate, policy and law making that they are supposed to. In many ways they are merely implementing bodies now. 

 

This supra-national power is not just wielded over a narrow range of issues either. The EU's competences are vast, touching on nearly all aspects of political, economic and social life in the Member States. The policy areas it has competency over are:

  • The customs union i.e. the external trade tariff and entry and exit of goods and services into the EU;

  • Monetary policy for euro area countries;

  • Conservation of marine biological resources under the common fisheries policy;

  • Common commercial policy e.g. international trade and technical agreements;

  • Internal market (most EU legislation is introduced under the internal market articles of the Treaties. It includes a wide range of issues from company law and financial services regulation to telecommunications sector regulation and much in between);

  • Aspects of social policy;

  • Economic, social and territorial cohesion (regional policy);

  • Fisheries;

  • Consumer protection;

  • Trans-European networks;

  • The area of 'freedom, security and justice' (i.e. criminal and civil law and so-called police and judicial ‘co-operation’);

  • Shared safety concerns in public health matters;

  • Technological development and space;

  • Development and International Aid.

The vague wording of the Treaties and the autonomous legal and policy making capacity of the EU's institutions mean that participation in the EU is open-ended, with a considerable degree of latitude for the institutions to widen the boundaries of their authority. The Court of the Justice of the EU has been at the forefront of the ‘expansion’ game for nearly sixty years. Most famously in cases such as Van Gen den Loos where the primacy of EU was declared by the judges without any basis in the Treaty of Rome. The Court has consistently widening its power base at the expense of Member States often without authority in the Treaties.

 

Sieberson and Fleischer point out that an indispensable element of a supra-national organisation is the primacy of an autonomous system of law over that of the legal systems of the Member States. A key part of that supremacy is that the law must have direct binding effect not just on the states (as international law would) but directly over the citizens and private organisations of the Member States too (Storey and Turner, 2011, pgs 134-137). This is exactly how the EU has evolved. Legal supremacy has largely been put in place by the Court of Justice without authorisation in the Treaties. This legal development is typified by the judgment in the seminal decision in van Gen den Loos [1963], which was an early example of the Court of Justice's insatiable expansionism:

 

By contrast with ordinary international treaties, the EC Treaty has created its own legal system which on entry into force of the Treaty became an integral part of the legal systems of the member states and which their courts are bound to apply...the member states have limited their sovereign rights… it follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions...’(van Gend en Loos, 1963).

 

As legal academic Henri de Waele has observed:

 

‘…the judgments on supremacy and direct effect carry an indelibly activist mark, as the doctrines…not enshrined in the Treaties themselves, are products of judge-made law, created purely for the benefit of…European law’ (de Waele, 2010, pg 5).

 

A supra-national system of law must also prevent Member States from bringing forward any legal or policy measures where the EU has already legislated or that might contradict supra-national law. EU law does do this too. It was established in another decision of the Court of Justice: Simmenthal [1978].

 

The development of this system of supreme law also provides further evidence of the high degree of autonomy of each EU insitution and the overall supra-national framework of the EU.

 

More recently the mechanisms have been put in place which mean that the EU can implement a policy in any area without having to bother with changing the Treaties (Article 352 of the Treaty on the Functioning of the European Union – TFEU – the so-called ‘Flexibility clause’). Further, the way the EU operates i.e. the legislative procedure, can now be altered without the need for a Treaty change (Article 312 of the TFEU, sometimes called the ‘Passerelle clause’). Together these further emphasise the autonomy and superiority of the EU’s institutions over the Member State, through providing more evidence of the ability of the EU to set the limits to its ambitions itself - like an ordinary state can.

 

As a result of the Lisbon Treaty in particular, in many areas the EU not only has internal control over each policy area but can also exercise external control too. The EU has international legal personality and can make treaties on its member’s behalf across all the areas it has exclusive or so-called 'shared' competency over. The supremacy of EU law within the boundaries of the EU over international law was recently established, again by the Court of Justice, in the case of Kadi [2008]. This decision confirmed the EU's state-like character (if any further proof were needed) because only within nation-states does 'domestic' law take precedence over international rules. The Court of Justice was asserting that this position or 'rule' now also applied to the EU.

 

The final element listed by Stephen Sieberson as a characteristic of the EU was its practice of passing of laws by majority votes. Most EU laws are passed using what is called the Ordinary Legislative Procedure, whereby both Council of Ministers and Parliament agree to laws on a majority voting basis and where voting weights are distributed broadly (though not precisely) along population based lines. As a consequence, Member States are not equal within the EU’s decision making councils as states engaing in inter-governmental co-operation would be. Rather a minority can and are overruled by a majority of others. The majority votes system has two effects:

  • It enhances the power of the body in which the majority voting takes place by making decision making swifter and for opposition to be more easily overcome; and

  • It gives larger countries more power over smaller ones.

In addition to the practical consequences, majority voting distributed on a population basis is symbolically important too. It mirrors the methods used to organise law making within established and settled nation states. It is no coincidence that the EU has moved down this road. Adopting institutional forms that resemble those of countries makes the EU more ‘state-like’, in the words of Stephen Sieberson.  

 

The characteristics of the EU described above, have hopefully made it obvious that the only word to describe the EU is supra-national. In no-way can it be considered international. The nature of supra-nationalism helps illustrate the lie embodied in that favourite phrase of Nick Clegg and others who argue for continued membership of the EU: the EU is about ‘pooling sovereignty’. This usually comes after they have spent some time mocking the idea of sovereignty in the first place and throwing cheap patronising jibes at those who consider sovereignty (or rather freedom through democratic self-government) as an important principle. But, as is hopefully clear,  supra-nationalism does not involve ‘pooling sovereignty’. In the words of that great lawyer Ronald King Murray QC, by being a member of the EU power has shifted:

 

‘…to a superior authority which can overrule British law for…ends which are far-reaching’ (King Murray QC, 1975, in Nicol, 2001, pg 155).

 

In conclusion

 

So, supra-nationalism is not the much vaunted ‘coming together’ to co-operate and solve problems that many pretend. That is what internationalism is and achieves, through inter-governmentalism. Rather, it is a new system of government, above and superior to the Member States of the supra-national entity.

 

Supra-national organisations are autonomous. They hold and exercise the authority that used to be the wielded by the numerous parliaments, congresses and domestic courts etc in the Member States. The institutions of the EU, such as the Court of Justice of the European Union, the Commission, the Council of Ministers and the EU Parliament have the power to directly bind and compel both governments and peoples within the scope of their authority. The EU is able to do this because its laws and rules have supremacy over those of its subordinate units. Further, the scope of that authority is open-ended and its parameters largely self-defined.

 

Supra-nationalism therefore, is categorically different to internationalism. It is no doubt too late for this basic insight to permeate out into the national debate over membership of the EU. But the debate would have been much more productive and much more accurate if this clear conceptual and actual difference had been clear from the start. We could then have had a debate over what the EU actually is and how it works, rather than the surreal and somewhat 'detached from reality' debate where most people think the EU is about ‘working together’ in particular in relation to economic issues. When, in fact, it is about the most fundamental issue that has sat at the heart of all human societies since the beginning of the human story: who holds power, over whom do they exercise that power and how do they exercise it.     

 

References

 

Case 26/62, NV. Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1

 

Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351

 

Case 92/78 Simmenthal v Commission [1978] ECR 629

 

de Waele, H (2010). ‘The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment’, Hanse Law Review, Vol 6, No 1.

 

Dixon, M (2013). ‘Textbook on International Law: 7th Edition’.

 

Fleischer, H (2010). ‘Supranational corporate forms in the European Union: Prolegomena to a theory of supranational forms of association’, Common Market Law Review, 47.

 

Nicol, D (2001). ‘EC Membership and the Judicialisation of British Politics’.

 

Nugent, N (2003). ‘Government and Politics of the European Union’.

 

Ruszkowski, J (2009). ‘Supranationalism between the nation-state and international cooperation’, Journal of Public Administration and Policy Research, Vol 1, No 1, 2009

 

Sieberson, S C (2010). ‘Inching Toward EU Supranationalism? Qualified Majority Voting and Unanimity Under the Treaty of Lisbon’, Virginia Journal of International Law, Volume 50, No 4.

 

Storey, T and Turner, C (2011). ‘Unlocking EU Law: 3rd Edition’.

 

United Nations (1945). ‘UN Charter’, can be accessed at: http://www.un.org/en/sections/un-charter/un-charter-full-text/index.html

 

Williams C H et al (2007). ‘Charles de Gaulle’.

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