This paper deals with the characteristics of the term sovereignty as well as state power. Its aim is to find out whether the sovereign position of the states is changed in terms of an era of globalization. We can demonstrate this by answering the question whether the Slovak Republic lost its sovereignty when accessing the European Union. In this paper, the accession of the Slovak Republic into the European Union and the transmission of part of its sovereignty are also mentioned briefly. The reader can find the definition of sovereignty within the interpretation of the Constitutional Court of Czech Republic, and the possibility for Member States to withdraw from the European Union. Last but not least, the article is finished with the cogitation about the power position of nation states.
1. The way of the Slovak Republic to the loss of sovereignty
Regarding the loss of sovereignty, the Slovak Republic decided freely to relinquish part of its sovereignty by applying for the European Union (further on abbreviated as ‘EU’) membership at the European Council in Cannes on June 27, 1995. Arguably, the transmission took place on April 16, 2003, when the Slovak Republic signed the Treaty of Accession at the summit of the Council of Europe in Athens. One month later a referendum on the Slovak Republic’s accession to the EU was organised, and the affiliation of Slovakia to the EU was supported by 92,46% of the participants (Karas, Králik, 2012). Since the Treaty of Accession had already been signed, the referendum was only declaratory in nature. After that, Article 7 of the Constitution of the Slovak Republic was amended, and thus legally binding acts of the European Communities and the European Union obtained priority in application over the laws of the Slovak Republic.
The Constitutional Court of the Czech Republic in its decision, file nb. Pl.ÚS 19/08, stated that the European Union is a unique, sui generis entity, which is not included in the basic state theory categories. ‘Integration character, in this respect even in the case of the European Union, can ultimately bring protection and strengthen the sovereignty of Member States to external, particularly geopolitical and economic factors; in example also to the newly emerging globalsuperpowers, where it is difficult to estimate the future value priorities that are willing to build and afterwards obey a new order of globalized world. ‘ (file nb. Pl.ÚS 19/08, point 102).
2. The transformation of the term sovereignty
The Constitutional Court of the Czech Republic clarified the line of the development and transformation of sovereignty: ‘It is generally considered that the state and its sovereignty are undergoing transformation and that no state is nowadays such a consistent and separate organization as assumed in the past classical theories. Even legitimate sovereign power of the state must necessarily follow the ongoing trends and try to approach them, understand them, and gradually subordinate this spontaneous process of globalization lacking the hierarchical organization of a democratic legitimacy’ (file nb. Pl.ÚS 19/08, point 105). ‘It may be inferred that, similar to the Czech Republic, the Slovak Republic did not have a very choice in its decision to enter the EU. These two countries, likewise others did, decided this way only to fulfill expectations to avoid falling behind other countries of Europe and to accommodate with the evolution of our continent. This way they could become part of the coupled European countries with the aim of gaining power and becoming full-fledged players on the world stage.
Sovereignty of the modern democratic state is not in itself a purpose, it is merely a tool for the realisation of fundamental values. Competencies were freely transferred by the states to ensure a proper functioning in the pre-agreed manner. This means that there is no weakening of the sovereignty of the state, but rather the result can be a strengthening in the common practice of an integrated entity. The European Union has further developed its concept of shared sovereignty, and thus Member States may continue to govern as sovereign states, or at least partially, and their competences can temporarily or permanently be transferred (file nb. Pl.ÚS 29/09, point 145). It is assured that EU Member States can act as ultima ratio (the last resort) and may review whether an act of the institutions of the EU deviates from the powers that the Member States transferred to the European Union.
Beyond the proposals, the Constitutional Court of Czech Republic added that national sovereignty is in no way disturbed by the creation of inter-state system of collective defense. If it was so, the Czech Republic would have lost its sovereignty on the day of signing the contract on common defense, when accessing the North Atlantic Treaty Organization.
The Lisbon Treaty explicitly provides for the possibility of re-transfer of powers to the Member States in a situation where it is no longer necessary for them to be carried out by the EU. It also regulates the possibility to withdraw from the EU – in Article 50 of the Treaty on the European Union, referred to as withdrawal clause. ‘The explicit articulation of this option in the Lisbon Treaty is a strong confirmation of the principle States are the Masters of the Treaty and the continuing sovereignty of Member States’ (file nb. Pl.ÚS 19/08, point 106).
As the Slovak Republic voluntarily handed over part of its sovereignty, it can take it back the same way. One could argue that thisindicates the fact that the Slovak Republic never even lost its sovereignty. When the state can take its sovereignty and comepetences back by withdrawing from the EU, it means that the sovereignty still belongs to the state. However, it can be pointed out that one of the most significant questions is not the theoretical but the practical possession of sovereignty by the Member States.
The idea of continuing sovereignty can even stand on the assumption that the sovereign state is the one who has the power to set its own competences. There are two ways that the EU could not prevent the Member State from exercising its competence. The first is that the competences of the Member States are kept by them. The second option – if the competences of Member States were passed o n the EU – is that the EU cannot extend its competences without the consent of the Member States. In this case, Member States remain sovereign.
3. Does the EU threaten the power positions of nation states?
‘The law is a command, expression of the will of sovereign ‘ (Loughlin, 1992, p.73). Is it not the EU that is becoming sovereign with regards to its legislative power, which is so strong that it is a legitimate means to oblige the Member States to enact EU legislation?
Regarding the application of laws, the principle of the priority of EU law is applied, whereas the treaties do not contain any provision that would solve the conflict between national law and EU law. This principle was designated by the European Court of Justice in the case Costa v. ENEL. The main reasons for the application of the principle of the priority of EU law are its direct applicability and direct effect, which must not be endangered by the discretion of national courts.
The EU law cannot be challenged by any national rule or principle, otherwise the transfer of powers from the Member States to the EU would not make sense (Karas, Králik, 2012, p.122, 124). EU law is an independent source of law and therefore cannot be overcomed by the legislation of the Member States. This is due to its special nature. ‘Only when it is promoted as the highest law by all national courts of the Member States, EU law can be considered effective’ (Procházka, 2013, p.337).
Advocate General Karl Roemer, in his opinion from December 12, 1962 on the Van Gend en Loos case, attributed the crucial importance of national constitutional justice in finding the right way to determine the impact of the founding treaties on the national jurisdictions of the Member States. He found that one of the reasons for the rejection of the direct effect is that the constitutional rights of the Member States, particularly with regard to the relationship between transnational and international law and subsequent national legislation, are not uniform’ (Procházka, 2013, p.341). Kahn and Schmitt claimed that the ‘Whole legal order is based on a decision of the sovereign. Like any other order, the legal system is based on the decision, not on the norm ‘ (Procházka, 2013, p.340).
4. To whom should the power belong?
People as citizens of a state decided to pass along part of their freedom into the hands of their state, which became sovereign and afterwards it has surrendered part of its sovereignty in favour of a higher entity. It was therefore correct to allow the citizens of the state to express their opinion in such an important step as the transfer of national sovereignty was. In principle, people should govern. The famous quote of Winston Churchill: ‘Democracy is the worst form of governance except of all the others that have been tested from time to time’ (Langworth, 2011, p.574) suggests that people are still trying to keep alive this best known form of government, although the perfect democracy is an unreachable goal.
The historical example of how the power of the people can be too dangerous is Athens in its golden age, when the public opinion was divided on the question of helping Sparta, which had been destroyed by an earthquake in 464 BC. Ultimately triumphed the opinion that Athens cannot allow ‘the loss of the second horse in the common yoke of Hellas as not to cripple along’ (Zamarovský, 1990, p.314). An important expansionary step should have been the Sicilian expedition in which most of the army was destroyed. ‘That was too much that flocked to Athens at one time, and not without blame, and especially not without mistakes of their leaders and the people; the first repayment for errors was a coup d’etat (seizure of power), a second was enemy blood revenge and third military defeat ‘ (Zamarovský, 1990, p.327). Weakened Athens was attacked by Sparta and was destroyed.
What contributed to this defeat came from the inside of Athens, from the decisions of its inhabitants. Thus, the greatest desire for the application of the most perfect democracy caused the eclipse of democracy. All steps were voted by the people’s assembly, despite the fact that politicians explained people what nonsense it is to ‘bet everything just on one card’ (i.e. Sicily). The power of the people, therefore, can also be devastating. However, it does not make the power of the people less important and determining.
The expansion of the EU secured new sources of power that multiplied its inner strength. But what is the real power of Europe today? The Slovak Republic, as well as many other countries on the European continent, lost part of its sovereignty for which it has gained many benefits in areas such as agriculture, economy, monetary union and justice- Slovakia has also become part of a common European area of security, freedom and justice. Yet, it is likely that the European Union is under pressure to fall apart. Stronger states will not stand for the protection of a union of states, but for their own sides. The states will defend their interests, they will not fight for the states the existence of which, so to speak, ‘they do not need’. It all flows from the feeling that Europe is not ours. This can be evidenced by the example of the participation in the elections for the European Parliament When the percentage of people who take part in the elections is rather negligible, there can be no social contract between the EU and its citizens. Citizens are giving up their right to decide through their ignorant approach towards EU institutions, and their passive attitude is saying: ‘Do what you want’.
The idea of the United States of Europe could therefore be an option to safeguard the stability of the EU. Only a single federal state of EU could create a strong entity. Thus, as in the United States, where it does not matter if someone is from New York, Texas, or California, for their federal state they would proudly stand under any circumstances. However, in the future of Europe the centrifugal tendency of the states is much more expected, and, even today, euroscepticism can be observed. Also, the more the central government tries to centralize its power, the more the individual parts of the government are trying to break away. Europe’s problem is that it does not have a homogeneous population, Europeans do not feel being one nation, there is no appropriate level of fellowship –as it is for Americans. And this fellowship is difficult to be created only on the basis of some power-organizational scheme. The European Union has to focus on meeting its original objectives, such as peacekeeping, economic cooperation, and the free movement of citizens. If the EU will expand too much at the expense of the Member States, the centrifugal tendencies will spread, and the EU’s efforts to widen its external force will result in the disintegration of the internal strenght. In addition, the Member States would take back their sovereignty, which still truly belongs to them as Article 50 of the Treaty on the European Union states.
5. Cogitation as the ending
Sovereignty serves primarily as an ideological doctrine that seeks to defend the power position of an entity. Within the EU, talks about the sovereignty of nation states are increasingly arising. Does this happen because these states feel that their position of power is being threatened by the position of the EU?
There are also some theorists such as Karl Raimund Popper, who argued that the concept of sovereignty is completely useless and even harmful. Popper did not ask who holds the highest power, which means who is to govern. A fundamental question for him was how state power should be limited. Plato solved this problem of political theory by promoting the governance of ‘the best’, ‘the wisest’, ‘native rulers’ and ‘those who have mastered the art of government’. This is understandable, since people are not likely to choosethe less qualified candidates. But how can they know that ‘those unqualified’ are not the ones they have chosen? The society should therefore be well-prepared for this possibility and take into consideration the fundamental question: ‘How can we organize the political institutions in order to avoid the situation in which the bad or incompetent rulers can cause too much damage?’ (Popper, 1994, pp.113-114). The answer to this question can be given to us by the theory of checks and balances, which will oversee the power of the sovereign.
Last but not least, I would like to mark that nothing can be seen the same today and forever, and the same way in the minds of everyone. As time goes by people change, and they see the law in new light and in another way. Future events may bring unexpected aspects considering the particular provisions of our laws, and what people read one way before, now they read it with a completely different meaning. One should never forget the famous motto ‘Historia magistra vitae est’, in order not to repeat the mistakes of the past. We hope that the whole concept of the European Union will be in the end prospering for the Member States, not destructful.
By Monika Martišková
This article was originally published in issue 4.2 of the magazine, which can be accessed here.
This article was published by virtue of our partnership with the Slovak law magazine Corpus Delicti.