Postbus 66 – Beyond Westphalia

Lees hier het pdf van dit artikel. The European Union is often perceived as an anomaly in international law and relations. Whereas once sovereignty was one and undivided, the European Union has developed its own model of governance beyond the Westphalian system of international relations. By Jaap Hoeksma In Europe in the Storm, the outgoing President of the European Council Herman van Rompuy gives a detailed account of the efforts of the EMU member states and the EU institutions to save the euro. More than just an insiders’ tale, his story may have reverberations beyond daily politics. From a philosophical point of view, the book can be regarded as a deliberate confirmation of the new paradigm in international law and international relations that the EU is bringing about. This paradigm shift originates from the distinctive approach to the concept of sovereignty that the EU and its predecessors have introduced. Whereas the system of international relations that underlies the organisation of the United Nations is based upon the principle that sovereignty is one and indivisible, the EU embodies the idea that states may share the exercise of sovereignty in order to achieve common goals. Traditional sovereignty The UN model of international relations came into existence after the 1648 Peace of Westphalia, which brought an end to the Eighty Years War between Spain and the Netherlands and to the Thirty Years War in Germany.1 Before that time, in the Middle Ages, sovereignty was blurred and cities introduced their own coins and currencies. Against that background, authors such as Jean Bodin (1530-1596) stressed the need for clarity in the public domain. States were to become the dominating entities in the organisation of Europe and the world at large. This traditional presumption that state sovereignty is absolute also has major implications for the system of international financial relations.2 In the prevailing approach, currencies must be backed by states, which are the sovereigns behind the currency. States have the prerogative of raising taxes within their territories; they have “deep pockets” and are therefore able to support their currency whenever needed. Debts owed by states are described by the markets as “sovereign debts”. According to the traditional theory, a currency without a state is doomed to fail.3 In this paradigm, sovereignty has an internal and an external aspect. States are free to enact their own laws; they don’t have to recognise a higher authority, be it Pope or Pontiff. Sovereign statesare also free to determine their own form of government.In the 19th and 20th century, Europeanstates increasingly developed into democracies and subjects became citizens, protected by the rule of law. As a result of this progress, it was assumed that the concepts of democracy and the rule of law could only thrive within the boundaries of a national state. In foreign affairs, states dealt with each other on equal footing. They had to refrain from interfering in each other’s affairs and had to respect the integrity of each other’s territories. While the relations between states belonged to the domain of diplomacy, war was regarded as an acceptable means of conflict solution (“bellum iustum”). Actually, the conduct of war forms an integral part of the Westphalian system of international relations. This state of affairs was highlighted by the Prussian general Von Clausewitz, who argued in his book On War (1832) that war is the continuation of diplomacy by other means. New concept of sovereignty The process of European integration, which was initiated after the two World Wars of the 20th century, may be regarded as a careful attempt to overcome the deficiencies of the traditional system. Sixty years onwards, European states and citizens are still trying to come to terms with both the intended and the unforeseen consequences of their common endeavour. Obviously, the initial goal has been achieved. The Nobel Prize for Peace was awarded to the EU in 2012, but it could also have been granted to the ecsc in the fifties. By sharing the exercise of sovereignty over coal and steel, the member-states of the First European Community succeeded in establishing lasting peace amongst themselves. By deviating from the classical model of international relations, the founding states of the eu demonstrated that they had ceased to regard war as an acceptable means of resolving conflicts. In line with the suggestions of the German philosopher Immanuel Kant, war was replaced with the rule of law.4 In his writings, Kant also formulated the thesis that states wishing to cooperate in order to avoid war have to either form a confederation of states or merge into one federal state. Consequently, a debate between the proponents of a federal Europe and the protagonists of a “Europe des Patries” has been raging on for half a century. After the rejection of the ill-fated Constitution for Europe in 2005, however, it became clear that the EU was neither to be a federal state nor to remain a confederation of nation states. Consequently, the EU found itself at a theoretical impasse. This existential dilemma was aggravated by the outbreak of the financial and sovereign debt crisis in 2008, which threatened to undermine the very existence of the single currency. The domino theory, floated by critical commentators at the height of the crisis, held that if the euro was to fall, the EU would collapse as well. Eurosceptic politicians and influential newspapers, notably the Financial Times, have been advocating a return to “Westphalia” ever since.5 From a theoretical perspective, these combined crises have led to an increasing awareness that the EU can no longer be explained in terms of the Westphalian system of international relations.6 The experiment with the joint exercise of sovereignty is resulting in the emergence of an unprecedented polity of states and citizens.7 Within the limits of the prevailing paradigm, it is impossible for such a polity to exist. However, taking into account that it has been the very intention of the founding fathers to overcome that out-dated system, a vocabulary should be developed with which the EU and the EMU can be described in a coherent manner.8 In doing so, it should be acknowledged that the novelty of the EU lies in the application of principles of democracy and the rule of law to an international organisation. In the old approach, it is theoretically impossible for international organisations to function in a democratic manner. The breakthrough achieved by the eu is that it has effectively removed this philosophical obstacle. A common democracy This conclusion paves the way for the submission of an entirely new hypothesis. The new proposition holds that, if democratic states decide to share the exercise of sovereignty in order to achieve common objectives, the Union which they establish for this purpose, should be democratic too. This suggestion is underpinned by the 2009 Lisbon Treaty which demonstrates that the EU does not only consist of democratic states, but also aspires to function as a democracy in its own right.9 The kind of democracy which the EU constitutes may be described with a new term as a “common democracy”.10 In the classical system, a common democracy would be an anomaly. In the new approach, however, the term is meant to characterise the EU as a polity of states in which the citizens are entitled to participate both in the national democracies of their countries and in the common democracy of the Union. In the same vein, this approach sheds fresh light on the functioning of the common currency of the Union. Whereas the euro is described by advocates of the old model in negative terms as a currency without a state, the new perspective allows for the common currency to be described as a currency beyond the state. The EU and the member- states of the eEMUmu may now be regarded as the joint sovereign behind the euro.11 Replacing outdated paradigms with new models of thought is a tedious process which requires patience and perseverance. From this perspective, the importance of Van Rompuy’s book is that it shows in detail how the evolution of the euro from a currency without a state to a currency beyond the state has taken place.12 He accentuates that the decision of the European Council at the summit of June 2012 to establish a banking Union gave the President of the European Central Bank sufficient ground for making his famous statement that “he would do whatever it takes to save the euro”. The markets believed him indeed and that signalled a return to normality. The emu member-states and the eu institutions had publicly demonstrated that they regard themselves as the joint sovereign behind the euro and that they are determined to act accordingly. Draghi described the decision of the European Council as a “game changer”.13 Obviously, one game changer doesn’t account for a paradigm shift. The combination of measures taken by the European institutions during the financial crisis in order to save the euro certainly does. In conclusion, it may be recalled that the process of European integration has been dominated from the start by the dilemma of whether it should result in the creation of a federal state or in the establishment of a confederal union of states. Even today, some politicians plead for the construction of a United States of Europe while others prefer to portray the EU primarily as a free trade zone. This debate about the end goal of European integration has had a paralysing effect on the European Council and the eu as a whole. The paradox of the finalité politique that emerged implied that progress could only be made if and as long as the end goal remained unspoken.14 The most important conclusion that may be drawn from Van Rompuy’s account is that the EU has liberated itself from this perennial dilemma. The EU is neither a federal state nor a confederal union of states. Instead, the European Union has developed its own model of governance beyond the Westphalian system of international relations. The essence of the new model is twofold: states can share the exercise of sovereignty without losing statehood at the same time as enjoying the benefits of a common currency without having to merge into a federal state.   Jaap Hoeksma is a philosopher of law and the director of EuroKnow. He is also the creator of the board game Eurocracy.   Heeft dit artikel uw interesse gewekt? Klik hier voor meer info en abonnementen.   Notes 1 Brinkhorst, L.J. (2008). ‘Europese Unie en nationale soevereiniteit’, Universiteit Leiden. See also Cooper, R. (2003). The Breaking of Nations - Order and Chaos in the Twenty-first Century. New York. 2 Lastra, R. (2006). Legal Foundations of International Monetary Stability. Oxford University Press. 3 Padoa-Schioppa, T. (2010). ‘Markets and Governments Before, During and After the 2007-20xx Crisis’, Per Jacobsson Lecture. Basel: Bank for International Settlements. 4 Kant, I. (1796). Zum Ewigen Frieden. Köningsbergen. 5 Stevens, P. (2011). ‘Europe’s Return to Westphalia’, Financial Times 23 June 6 Curtin, D.M. (1997). Postnational Democracy. The European Union in search of a Political Philosophy. The Hague. 7 Gerven, W. van (2005). The European Union: a polity of states and peoples. Stanford. 8 Dickson, J. and Eleftheriadis, P. eds (2012). Philosophical Foundations of European Union Law. Oxford University Press. 9 Bogdandy, A. von (2011). ‘The European Lesson for International Democracy: The Significance of Articles 9-12 EU Treaty for International Organizations’, EJIL Vol. 23 no.2 10 Hoeksma, J. (2013). ‘Back to or Beyond Westphalia’, Blog on the website of the Peace Palace Library, 11 Hoeksma, J. and Schoenmaker, D. (2011). ‘The Sovereign behind the Euro’, in: idem, A polity called EU, Nijmegen 12 Cf. Riet, A. van, (2014). ‘The future of the euro at 15; rounding the corners of the holy trinity?’ Tilburg University and European Central Bank 13 Rompuy, H. van (2014). Europa in de storm, Dutch edition, p.22 14 Rood, J. e.a. eds (2008). Nederland, de EU en het Verdrag van Lissabon. Clingendael Institute The Hague. - - Dit artikel verscheen in idee nr. 6 2014: A Divided World, en is te vinden bij de onderwerpen Europese Unie en internationaal.