Factors of statehood and the EU as a republic

What constitutes a state, federal system, and republic

Advanced issues of political organisation (POL412)

2017-10-24

Hello, my name is Protesilaos Stavrou. In this seminar I will talk about what makes up a state and what is the impact of its recognition by third parties. Then I will apply the analysis to the case of the European Union, to examine whether it is a state or a “sui generis” entity as some experts suggest.

It should be noted right at the outset that the term “state” is polysemous. In this context, it is used to signify a political order that can ultimately act as a player in international politics. This would typically rule out administrative units of federal systems, such as the “state level” of the USA. The latter form part of a federation and are thus excluded from the present inquiry into the factors of statehood. It should become clear from the content of this presentation why this rule comes into effect.

The problématique on statehood is pertinent to international relations because it offers a guide on how to balance world politics, keep disputes at a relative minimum, and provide for a certain predictability to the relevant norms and procedures. Statehood is, after all, connatural with sovereignty and, given the fact that nation states are the unit of international affairs, intimately linked to nationhood. The debate ramifies to other areas such as those considered in the previous two seminars: the first on How to evaluate international relations which examined sovereignty and its facets or modalities, and the second On sovereignty, nationalism, secessionism which inspected nationalism as the underlying ideology of the nation state and established the normative criteria for any possible unilateral secession.

In such cases, the issue of statehood is central. Knowing exactly “what” constitutes a state and which are the criteria for its formal recognition, is key to approaching such hard problems as the emergence of new political orders. New states imply territorial adjustments or, more broadly, a redistribution of supreme political authority. In any case, the existing equilibrium or else the status quo of the international order is disturbed. Lest we forget, the world lacks a single, overarching body that can resolve tensions centrally. Everything must be regulated in a distributed fashion among the states that make up the international community. As such, the criteria for the formation and eventual recognition of new states are quite strict.

Let us consider them in further detail. As per the Montevideo Convention on Statehood of 1933, there are four criteria for an entity to qualify as a state:

1. A permanent population.
2. A defined territory.
3. A government.
4. The capacity to engage in relations with other states.

However, scholars disagree as to whether these are sufficient or not. The tradition that follows the spirit of the convention, which propounds the so-called declaratory theory, claims that the Montevideo criteria are sufficient. They treat the matter of formal recognition as separate to the very presence of a state qua state. Whereas the opposing camp, the proponent of the constitutive theory, argues that recognition is a prerequisite to statehood. Otherwise the entity cannot really enjoy the rights that stem from international law. It is, at best, a state manqué; one that is lacking in some important ways.

To me the midpoint of statehood is effective sovereignty. This is the actual power to exercise control over the factors of governance; to be in a position to initiate and implement policies. In this light, the Montevideo criteria need to be reformulated as follows.

1. Population. The entity must have a permanent and replenishable population that identifies itself as a collective. The sense of togetherness is of paramount importance. It is catalytic to the formation and preservation of social peace. It is at the heart of any sense of belonging. It makes it easier, if not straightforward, to identify with the persons and the institutions that rule over the populace. A population that perceives of itself as a collective is, from a cultural-historical standpoint, an organic whole.
2. Territory. The entity must have a clearly delineated territory that can be defended against other states, even if disputes have not been settled. This is a litmus test for the presence of effective sovereignty, as it determines whether the administration is capable of exercising supreme political authority, such as imposing taxes, or maintaining a standing army. It also demonstrates the independence from other states, which practically amounts to having sole and effective control over the territory and internal affairs. Without effective sovereignty over a well defined area, there can be no sustainable state.
3. Governance. “Governance” is not the same as “government”. It is the broader process of managing political affairs in accordance with the norms, traditions, rules, and expectations of the polity. To this end, the entity must have a well-defined legal system, credible institutions as well as established political processes. These provide for predictability and make the authorities recognisable among the populace. Permanent institutions are important for forging a national identity out of the already present sense of belonging. Furthermore, a coherent legal-institutional order is a clear indication that the society lives in peace and operates unencumbered by internal strife. A single recognisable government does, among others, imply that there are no warring factions vying for power and control, and that any political disputes are resolved with existing means within the available procedures.
4. Outwardness. Unlike the Montevideo convention, we should refrain from speaking about the mere capacity to maintain an international diplomatic presence. Rather, we should broaden our understanding to include any kind of recognition of the entity as a singular legal personality. This would include tacit recognition, even from non-state actors, such as investors willing to do business with this entity. Furthermore, it covers forms of partial or scoped recognition, such as accepting the entity as a singular person within a given context or process or area of policy. What really matters is the impact on the entity’s effective sovereignty. If such outwardness anyhow enhances its capacity to consolidate its authority, then it clearly satisfies the three aforementioned criteria, while making progress towards the eventuality of formal recognition.

Couched in these terms, the four criteria are, in practice, a basic combination of the declaratory and constitutive theories. The first three, namely, population, territory, governance, are inward and thus germane to the substance of statehood. While the fourth criterion of outwardness, is the one that draws the link between the emergence of the political entity and its practical functioning as a de facto state as perceived by third parties.

Formal recognition can only further amplify the effects of outwardness. It is a matter of degree and, hence, is not an irreducible factor of statehood. At any rate, I would claim that formal recognition must, at all times, conform to the principle of correspondence: which is that the entity to be recognised as a formal state must already satisfy the criteria of statehood, as reformulated in accordance with the notion of effective sovereignty. Otherwise, recognition can only be tokenistic, a device to exert political pressure on some other party. Recognition does not, in and of itself, transform a certain entity into a fully fledged state.

The EU is a state

With this theoretical framework in mind, I would like to proceed to the case study of the European Union. Certain analysts refer to the EU as some special, unprecedented historical phenomenon. For them, the EU is neither a state nor an international organisation such as the UN. Rather, it is in a league of its own. A new form of political organisation. An entity sui generis.

While there are indeed all sorts of peculiarities to the functioning and overall design of the European Union as well as the European integration process in general, I think the claims on its uniqueness are exaggerated. A closer look at the European Treaties will tell us that what stands as European law, is, for all intents and purposes, the constitutional foundation of this entity. They are called “treaties” but their substance is akin to that of the primary law of nation states. They cover everything from the vertical and horizontal separation of powers, the rights of persons and communities, the scope of sovereignty each level of government has, from the local to the national and the supranational, and so on.

In short, the EU Treaties establish a federal system; albeit one that is highly complex and not immediately recognisable—or referred to—as a federation. It is the complexity, the interlocking exceptions and policy-dependent modes of conduct, that lead experts to the conclusion that the EU is sui generis. Whereas the more modest claim, would be that the EU is an idiosyncratic federal system, much like many other federations. Is there any doubt that Belgium or Switzerland are federations? These also exhibit all sorts of unique features. Every constitutional order has its own identity, drawing from its peculiar cultural-historical path dependencies. Why not extend the same rationale to them, suggesting that the factors that differentiate them are more significant than those that qualify them as federal systems?

The point may seem esoteric and insignificant. And that would indeed be the case, were we not to account for the factors of statehood. What I want to suggest is that if the EU satisfies the aforementioned criteria, if it qualifies as a state, then notions of “uniqueness” are moving the wrong direction. To be more specific:

• Firstly, the EU has a permanent population, which does have a sense of Europeanness. The European elections, the Erasmus programme, and the ever growing media awareness on what is happening in other EU Member States, contribute to this feeling. Now there is an argument to be made as to how much the sense of belonging to Europe compares to national identities. What is most likely is that people tend to feel more attached to their historical nations. Still, the EU is a very young entity. Nation states have had much more time to forge these identities. There is nothing to suggest that the same cannot be true for the EU. Furthermore, the idea of Europeanness does not necessarily substitute that of nationality, just as nationality does not override any feelings of localism. Multiple forms of belonging are possible, since the scope or extent of each differs.
• Secondly, the EU has a clearly delineated territory, over which it enjoys a range of powers. Matters such as competition policy are the exclusive competence of the European level. The EU institutions are sovereign in that regard. The same is true for monetary policy for the countries whose currency is the euro. Moreover, the EU is in the initial phase of proceeding to the formation of a European army, or rather, forms of military synergies that will pave the way towards that end. Technically this is the so-called “Permanent Structured Cooperation”. Without delving into the specifics, these indicate that the EU has the potential to enjoy full effective sovereignty over its territory.
• Thirdly, the EU has a well defined, stable, and comprehensive legal-institutional order. Decision-making processes are well known, the authorities in charge are specific, legislation follows standard procedures, and so on. Though the EU does not have a formal government, it certainly has established arrangements for governance at the supranational level. A case in point is the governance, fiscal and macroeconomic coordination of the Economic and Monetary Union, else EMU. The fact that the EU does not have a formal office that performs the functions of a government, does not mean that it does not govern itself. It just is the case that the executive powers are distributed among certain institutions, namely the European Commission and the European Council. The end product is the same nonetheless.
• And fourthly, the EU is clearly enjoying a high degree of outwardness. It is increasingly being recognised as a single diplomatic personality. And it most definitely has the capacity to engage in relations with other countries. For instance, the recent trade agreement between Canada and the EU demonstrates how Europe is perceived as a singular entity for the purposes of international trade. And this is not an exception, but a sovereign right enshrined in the European Treaties, in accordance with the constitutional principles of conferral, subsidiarity, and proportionality.

The gist is that the European Union is a state. It satisfies the four criteria of statehood. Which brings us to an important insight on the specifics of the exercise of supreme political authority: and that is the scopes of sovereignty. The fact that the EU is a state does not mean that its member countries are no longer states in their own right. Rather, the vertical separation of powers in the EU, establishes different degrees of statehood, where sovereignty is not treated as equivalent to the traditional conception of national sovereignty. It is not inseparably attached to the construct of the nation state, but rather emerges as a form of effective sovereignty which is a function of the conventional distribution of competences between the various levels of government of the overall EU architecture.

The European republic

The EU is a federal system. What is not clear is whether it can also qualify as a “republic”. And what may that exactly mean? There basically are two overlapping schools of thought, the pragmatists and the idealists.

The pragmatist view of a republic is that it is a state that functions in accordance with republican norms of political organisation. It is a democratic system predicated on the rule of law, the separation of powers, the principle of limited government, the protection of fundamental rights, and the distinction between private and public spheres. For the pragmatists, the EU falls within this description, even though it lacks a formal government or, more generally, the norms and rules of custom that are typical to national democracies.

Whereas the idealists consider the norms and customs of political conduct as equally important as the constitutional aspects of republicanism. For them, the EU is not a republic, because it lacks the necessary symbolisms, ceremonies, and figures that are typical to democracies.

While the idealists are correct in their assessment regarding the issues that are not present or that are insufficiently available at the European level, the essential point is that the EU does offer a comprehensive res publica, a public good. The constitution of the Union, or else the European Treaties, provide for virtually everything one would expect from a modern democracy. What the EU lacks is functions or appearances that are important in a complementary way. It is not inadequate in terms of real powers. It clearly exercises supreme political authority over a range of policies. It definitely has an international presence and singular outward personality over a number of issues. It functions along the lines of the horizontal and vertical separation of powers. It has strong safeguards for the rule of law, the protection of fundamental rights, and democracy. In other words, the EU is a republic minus the fanfare. Exactly how important is the latter, remains a matter of political preference, not substance.

With this, I would like to thank you very much for your attention. We managed to cover a lot of ground in this presentation, from the factors of statehood as seen from the perspective of effective sovereignty, to the scopes of sovereignty, and the actual case of the European Union as a federal system and republic.

Until next time!

Acknowledgements

This seminar was produced using only free and open source software.

• The audio was captured and edited with Audacity.
• The presentation slides were prepared in LibreOffice and converted from a .pdf into .jpg using Imagemagick.
• The video editing was done with OpenShot.
• The transcript was written in Vim.
• All working on a GNU/Linux machine, specifically Arch.