In light of the on-going circumstances in the past several years, the possibility of restructuring the EU became more and more pronounced. Opening the procedure found in Article 7 of the Treaty of the European Union by the European Commission against Poland (December 20, 2017) and Hungary (September 12, 2018), as well as the United Kingdom, which formally left the EU on 31st of January 2020, points out the tensions caused by the relations between the EU and the Member States that acutely require a balanced solution. We can say that these conflicts mostly revolve around the concept of sovereignty, which shaped international relations since the 17th century. It can be argued that sovereignty has a different meaning now in the EU, but in fact, its meaning has always been changing, depending on the social, legal, economic, and political context. This paper compares the influence of international and EU-law on European states' sovereignty, summarising the most important conventions and a few cases related to the topic.
1. Definition and origin
Originally, sovereignty means supreme power, but it does not have an absolute definition because it is determined by the historical and functional context. The term comes from the 16th-17th century when, through secularisation, the states' ideology about power and supremacy could not be based on religion and divine natural law anymore. Bodin (1576) - the father of the notion - defines it as ‘[...] that absolute and perpetual power vested in a commonwealth’. Based on his idea, under one territorial unit, only one final and unrestricted decision-making authority can exist, and it cannot be questioned either from an internal or an external point of view.
1.1. Sovereignty in international law
After the Peace of Westphalia in 1648, the classic concept of sovereignty mentioned above became accepted in international relations. The most important principles of international law based on sovereignty are the principle of sovereign equality of the states and the principle of non-intervention. Considering the forthcoming comparison with EU-law, a few remarks about these principles must be made.
Firstly, the principle of sovereign equality of the states means that sovereignty is an imperative facet of every state; practicing its supremacy on its territory and is independent in international decision-making. The law differentiates between two kinds of sovereignty: the internal and the external. The first, internal, posits that everything and everybody is subordinated to the supremacy of the state and it excludes the supremacy of a foreign state on that territory (guaranteed by two other principles, the principle of the territorial integrity and the principle of respect of borders). The latter, the external sovereignty, guarantees the exemption from subordination to other states' supremacy in regards to foreign affairs. Every states' sovereignty is limited by the other country’s supremacy, thus absolute sovereignty does not exist. Sovereign equality is based on the principle ‘par in parem non habet imperium’(equals have no sovereignty over each other) and it includes, among others, the duty to respect other states' legal status, inviolability of their territorial integrity, and political independence.
Secondly, the principle of non-intervention or Monroe doctrine states that none of the states can intervene - directly or indirectly - in other sovereign states' domestic (and foreign) affairs. The principle involves that every state has the inalienable right to choose its political, economic, social, and cultural system.
Nevertheless, since the 19th century, accepting a state’s sovereignty has become increasingly complicated. The economic, environmental, and criminal factors of globalisation created a new intergovernmental dependence, which often indicates cross-border problems. Distancing from the original meaning of sovereignty seems to be an accepted trend, possibly because of the same reasons it was created: the safety and stability of society.
In the following paragraph, two cases will be presented that are worth mentioning from the 19th-20th century, especially due to their significant role in transforming sovereignty. The tribunal of arbitration in the Alabama Claims (1872) adjudged that Great Britain did not fulfill the duties prescribed by Article 6 of the Treaty of Washington (1871). The state made it possible for a warship, which was built in Liverpool, to attack American ships under the flag of southern countries. In the PCIJ, Britain et al. v. Germany (1923), also known as the Wimbledon-case, the Permanent Court of International Justice established, in conformity with Article 380 of the Treaty of Versailles, that the internal regulations cannot be contradictory with international law. In this case, the Director of the Canal Traffic refused permission to pass through the Kiel Canal for the steamship ‘Wimbledon’, based on the German neutrality orders issued in connection with the Russo-Polish war. Both of the decisions underline the supremacy of international law over national law. In 1969, in the Vienna Convention, the rule was codified in Article 27: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.’ (the exception refers to the obvious violation of the law).
Nevertheless, in the PCIJ, France v. Turkey, (1927), known as the Lotus-case, the Permanent Court of International Justice stated that Turkey had the competence in the conviction of the French officer, who was found responsible in the collision that occurred in the high seas between a French and a Turkish vessel. In the decision, they affirmed that within its territory a state can exercise its jurisdiction if it is not prohibited by international law. In sum, national jurisdiction and decision-making are limited by provisions laid down by international conventions, but it still has relatively big freedom.
The United Nations, as an intergovernmental organisation institutionalised the supremacy of international law. The UN Charter (1945) involves dispositions about principles, economic and social co-operation, and the International Court of Justice. Member States have to support the consequences of their acts which conflict with the Charter.
Another convention that has made significant changes since 1953 is the European Convention on Human Rights. Similarly to international treaties, it has supremacy over the national law of ratifying states, the application being mandatory when the rights offered by the convention are favourable for the citizens. Cases can be brought against states when there is a violation of human rights in both internal and external conflicts. The legal subjectivity of the individuals became more relevant, considering the possibility of application lodged by any person, group of individuals, company, or NGO, besides the application brought by a state in inter-state conflicts.
The concept of sovereignty created in the Peace of Westphalia states the only one final decision-making authority rules over one territory. Despite this original perception, globalisation, the evolution of international relations, and the turnout of international actors, states had to give up full-sovereignty. To achieve cooperation, they had to harmonise their laws with the treaties and conventions and because to that, the sovereignty of states acquired a different meaning.
2. Why is the EU different?
Another challenge for national sovereignty is European integration. What makes the EU exceptional is how it differs from an international organisation and a governmental organisation. It is not only intergovernmental but supranational at the same time, and at the institutional level, the separation of powers is not as delimited as the Member States' national systems. This supranational aspect comes into conflict with the states' sovereignty since the multi-level European integration asks for more compromises than the international conventions do.
The Coal and Steel Community was based on the idea of dependency, in favour of peace and welfare. Preventing the mobilization of any of the states without others knowing was the first step of the integration, the next is represented by the Treaties of Rome (1958) when it was extended to the economic cooperation.
Besides the Treaties, the decisions of the European Court of Justice are particularly significant in shaping the Member States' sovereignty. In the 1960’s two remarkable cases – ECJ, Van Gend en Loos v Nederlandse Administratie der Belastingen, (1963) and ECJ, Flaminio Costa v ENEL (1964) - led to the establishment of two essential aspects of Community law: direct effect and supremacy. Shortly, in the case of Van Gend & Loos, the Court declared, among others, that the European Economic Community constitutes a new legal order. The law, apart from the obligations of individuals, confers them rights which are part of their legal heritage, guaranteed not only by the Treaties but by the member states and the institutions of the community as well.
In the case of ECJ, Flaminio Costa v ENEL, (1964), the Court declared that it is capable of creating individual rights that must be respected by the national courts and underlined the necessity of limiting the states' sovereignty in favour of rights and obligations established in the Treaties. In this decision, the Court states that Community law is ‘legally complete and consequently capable of producing direct effects on the relations between the Member States and Individuals’. According to this, the concept of international legal subjectivity of the citizens, which appeared with the evolution of international law, elevates to a new level, where a citizen can invoke European law directly, not only before the European, but the national courts as well. In the case of ECJ, Commission v Council (1971), or better known as ERTA, the Court claimed that ‘each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules or alter their scope’.
The Treaty of Maastricht (1993) is one of the most important turning-points of European integration with creating the European Union itself and the three-pillar structure. The Treaty of Amsterdam (1999) initiated a more transparent decision-making system and with the Protocol of subsidiarity and proportionality, added to the basic Treaty the principles of direct effect and supremacy. The EU as we know it today was formed with the help of the Lisbon Treaty (2009), which clarified which powers belong to the EU, to the member states, and which ones are shared. The other important aspect is the Withdrawal clause, underlining that the cost of cooperation is shared sovereignty, and no other option is accepted. Since then, the Union faced the first major crisis of faith, when in 2020, on the 31st of January the United Kingdom formally left the European Union.
As we can see, the concept of sovereignty has been changing continuously. Cooperation within the European Union necessitates shared sovereignty. Heller (1927) says in his work that a possible integration means a more effective functional cooperation, not the loss of state-sovereignty. One can argue if the EU exceeded the original objectives, violating the authority of the states, or if the cost of integration is worth it. In favour of further development, co-operation, and social welfare, some notions and approaches may be reformed. The concept of sovereignty today cannot be the same as in the 17th century if we accept that the challenges a state has to face today are much more varied.
The European Union exceeded its primary goal. However, even if we can talk about European citizenship today, doubts arise concerning the existence of a common European purpose, given that many of the member states still face serious internal problems because of ethnic, linguistic, or religious diversity. Also, accepting the benefits and value of the European Union's ideology ‘better together’ may be hard for citizens from poorer countries, where they are the main social or financial victims of the undeveloped economy. The Court of Justice of the European Union (as the European Court of Human Rights) has a significant role in ensuring fundamental rights in Europe, in this case, the principle of direct effect and supremacy of the EU law means the possibility to guarantee (more or less) these rights in member states. Presently, the Member States have to choose between assuming the cost of integration and changing old concepts or leaving and taking a new direction.
By Borbála Mihály
This material was published in Lawyr.it Vol. 6, September 2020, available only online.
ÁGH, A. (2015) Az EU-integráció és a tagállami szuverenitás : Nemzeti fejlesztéspolitika a vágtató globalizáció korában, Az állam szuverenitása - Eszmény és/vagy valóság - Juris diction, Budapest [online] Available at: https://www.szaktars.hu/gondolat/view/takacs-peter-az-allam-szuverenitasa-eszmeny-esvagy-valosag-2015/?query=az%20%C3%A1llam%20szuverenit%C3%A1sa%20&pg=0&layout=s [Accessed: 24 March, 2020].
BAQUERO CRUZ, J. (2006) ’The Changing Constitutional Role of the European Court of Justice’, International Journal of Legal Information, Volume 34, Issue 2, Summer [online] Available at: https://scholarship.law.cornell.edu/ijli/vol34/iss2/7/ [Accessed: 19 January, 2020].
BODIN, J. (1576) Six Books of the Commonwealth, Oxford: Alden Press.
GYULA, F. (2018) Nemzetközi jog, Bucharest: Hamangiu, p. 37-42.
HELLER; H. (1927) Die Souveränität: Ein Beitrag zur Theorie des Staats- und Völkerrechts, Berlin: De Gruyter.
JAKAB, A. (2008) A szuverenitás fogalmának megszelidítése-érvelési variációk az európai integráció állandó problémájára, Európai Jog és Jogfilozófia: Konferenciatanulmányok az Európai integráció ötvenedik évfordulójának ünnepére, Apostoli Szentszék Kiadó, Budapest.
KNAPP, L. (2015) Szeverintás. Jogállamiság, Európai unió, Az állam szuverenitása - Eszmény és/vagy valóság - Juris diction, Budapest, [online] https://www.szaktars.hu/gondolat/view/takacs-peter-az-allam-szuverenitasa-eszmeny-esvagy-valosag-2015/?query=az%20%C3%A1llam%20szuverenit%C3%A1sa%20&pg=0&layout=s [Accessed: 24 March, 2020].
Permanent Court of International Justice, The Case of the S.S. Lotus, France v. Turkey, September 7, 1927, available at:
http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm [Accessed: 24 March, 2020].
Reports of International Arbitral Awards, Alabama claims of the United States of America against Great Britain, available at: https://legal.un.org/riaa/cases/vol_XXIX/125-134.pdf [Accessed: 24 March 2020].
Permanent Court of International Justice, S.S. “WIMBLEDON” Judgment of 17 August 1923, available at: https://legal.un.org/PCIJsummaries/documents/english/5_e.pdf [Accessed: 24 March, 2020].
European Court of Justice, 15 July 1964. - Flaminio Costa v E.N.E.L., Case 6/64 , available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61964CJ0006 [Accessed: 24 March, 2020].
European Court of Justice, 5 February 1963, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, Case 26-62. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61962CJ0026 [Accessed: 24 March, 2020].