Is Europe A Country?

Theories of Statehood

The idea of whether an entity can be considered a country is bound to the particular theory of statehood which is being applied to the question. There are two such theories generally used, the constitutive and declarative theories of statehood, and each gives a slightly different view in the case of Europe. On the one hand, the constitutive theory suggests that the EU could be classed as a country if it were recognised as being one by a large number of countries, such as a majority of UN members. However, there does not seem to be an effort on behalf of the EU to achieve this level of recognition, despite there being the few aforementioned EU ambassadors. Moreover, it is doubtful whether the acceptance of these ambassadors by foreign governments could really constitute such recognition, since the ambassadors are not representing an interface to a coherent EU foreign policy, managed by a distinct institution, in contrast to the normal role of ambassadors.

On the other hand, there is the declarative theory, which would require, as the Montevideo Convention of 1933 puts it, that the EU have “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” for it to attain statehood. Again the issue of “relations with … other states” arises, but this time it is only the capacity that is required. It would seem, then, that the EU meets this criteria, since it already has a number of examples of ambassadorial relations, but as noted above, these ambassadors do not function in the normal role of an ambassador, because they not acting on behalf of a coordinated, independent office.

Moving backwards on the list to “government”, it might seem obvious that the EU is eligible here, as it does have a parliament, for instance, but in some ways the EU is no more than the sum of its parts. For example, like the G8, the EU has a rotating presidency, which means the president is unelected and has no mandate. Similarly, the president does not have a “legal identity” representing the EU, and cannot act on its behalf. If the EU were sovereign, then, its sovereignty could not be vested in its president, and even more strikingly, the rotating president is a head of government of one of the member states, which would suggest that the president is sovereign of two countries, one of which contains the other, at the same time.

As for “a defined territory”, it is true that for each new member a treaty is signed defining (which areas of) which states become subject to (which of) the conditions and privileges of EU membership, but these treaties are actually implemented as a series of multi-lateral agreements between existing members deciding on a unanimous view of the new member’s status. In that sense, the entire existence of the EU itself appears to be a mass hallucination of its members, enshrined in law. There is no notion of the EU being able to decide which areas are and are not part of itself, sui iuris.

Finally, then, there is the question of whether the EU has a “permanent population”, at least as permanent as that of some country whose statehood is already widely accepted. To decide this, it is interesting to consider how the EU defines its relationship to the citizens of its member states. According to the Treaties of Rome, these citizens have a citizenship of the EU to “complement” their national citizenship, suggesting that a resident cannot be seen as part of the EU’s “permanent population” except by virtue of their pre-existing citizenship of a member state, which takes precedence.

After the Treaty

Those of you familiar with the Lisbon Treaty may have noticed what I’ve been doing so far in this post. It turns out that all of the reasons given above for why the EU isn’t currently a country would be affected, if not removed, by the Lisbon Treaty being ratified, so my choices of argument were very deliberate. Having taken this slightly contrived position, I will now attempt to undo all my reasoning above by showing that if the treaty took effect, the EU could in fact claim to be a country under both theories of statehood. As an even greater challenge, though, I will go for the complete 360 (or 400) and argue, at the same time, that actually nothing would change.

Ideally I would make my third case after making my second case, rather than simultaneously to it, but I fear that there are opponents to the Lisbon Treaty who are not intellectually honest enough to stop themselves stealing the second case (that Lisbon makes the EU a country) without acknowledging the third case, which is my rebuttal. Of course, these people aren’t necessarily stupid and they might be able to surgically remove a one-sided case from the following text, but at least they would have to admit to themselves that that is what they were doing.

So, regarding the significant point about ambassadors and diplomatic recognition, it is true that under Lisbon there would be a new External Action Service of the European Union to assist the person holding the role of High Representative of the Union for Foreign Affairs and Security Policy which would also be created, and this would allow countries to deal with the EU in a more familiar way, similar to how they deal with other countries. The continent of Europe has always naturally had a certain degree of shared interest in matters happening outside its geographical borders, and the EU just represents that interest in formalised way. The only thing Lisbon changes is that there will be people actually assigned to this important task who can report back to other EU bodies and member states. You could draw some arbitrary line and say that Lisbon crosses it by making the EU’s external relations suddenly become “too state-like”, but I think it is ludicrous imagining that the EU would suddenly try to claim it has become a country just because it has merged two roles together and given the holder of the new role some staff.

The constitutive theory, then, does not really allow for EU to claim statehood, and as an entity which failed to produce a constitution for itself (and is having difficulty even reforming itself, because its reform plan was previously included as part of the proposed constitution), I don’t think the EU can credibly make such a claim, even if the theory allowed it. Similarly the declarative theory starts to fail in the same way, because of its requirement of a “capacity to enter into relations with the other states”. Again, while Lisbon would make the EU’s existing relations with other states more coordinated and effective, the new merged role under Lisbon would still only have the power to make proposals and represent the Union in matters where there is an agreed policy between all member states.

Considering the other requirements for statehood under the declarative theory, there is the same contradiction. On the issue of a “government”, it is true that Lisbon would create an elected (albeit indirectly) non-rotating president, and even provide the Union with a legal personality, but there is still quite a gap between the updated “quasi-governmental” structure that Lisbon would bring in, and the necessary structure of a government for statehood. For comparison, just consider how a company can have its own president, and the company can have a legal identity, but that doesn’t mean all companies are countries. Similarly, any person could declare themselves president of themselves (even holding a direct election, if they wished) and people are legal entities (if they can sign a contract), but that doesn’t make people countries either.

Under Lisbon, the “government” of the EU would still require unanimity between member states on the important issues, it would still allow commissioners to be unelected appointees from the member states (like delegates or ambassadors, rather than senators in a federal system), and, most strikingly of all, the EU would still not be able to create laws which take effect in member states. The EU is limited to producing directives which must then be implemented by member states by them producing their own laws, or regulations which cannot have penalties and be enforced unless accompanied by member state legislation, since the member states are the ultimate sovereignty. In fact, Lisbon could be seen as undermining the ability of the EU to claim it has a government, since it enshrines a formal process for leaving the EU, making it clear that the EU has no power over its member states, they merely act as if it does while the benefits of staying outweigh the cost of leaving (which they can do at any time). A government which has no power over its constituents and no power to write laws is no sort of government at all.

As for the “defined territory” aspect of the declarative theory, hardly anything changes with the Lisbon Treaty except that the EU could choose to let residents of the Netherlands Antilles vote in European elections. This may not sound like much, and really it isn’t, but it does represent a minuscule shift in the way the EU deals with accession. So far, every time EU voting rights have been extended to a territory, it has happened by that territory being mentioned in an accession treaty, signed and ratified by all states (or possibly with a little help from a court case). If the status of the Netherlands Antilles changes without an accession treaty, then, it will be a precedent for EU borders being set by an EU body, not an explicit international treaty. I’m sure some opponents of Lisbon could readily imagine an EU Minister for War deciding to use his substantial executive powers to blockade Switzerland and unilaterally declare it annexed to the EU Empire, so he can steal all their chocolate, but the legal reality is much more mundane. The treaty only allows a few named areas to of a few named member states to become more (or in fact less) integrated into the EU, provided the member states agree unanimously.

Last of all is the matter of a “permanent population”, and as discussed the Treaties of Rome currently say that citizenship of the EU is complementary to national citizenship. The Lisbon Treaty would change even this seemingly adequate provision, however, making EU citizenship “additional to” national citizenship. It is difficult to say what the precise legal difference will be, but I can imagine people claiming that if EU citizenship is additional, it must be a fully defined citizenship in its own right, not merely an extension of (and dependent on) an existing citizenship.

I would be intrigued to see a legal test case where someone was stripped of their national citizenship (or even voluntarily renounced it) but petitioned the European Court of Human Rights to prevent the stripping of their additional EU citizenship. As the treaties do not define a process by which a citizen of the EU could lose their EU citizenship, and if this citizenship really can exist without a national citizenship, then there may be a strong case to say that no body is competent to remove this new type of citizenship. The EU could then be forced to create an EU passport or identity card to allow that person to exercise their freedom of movement as a European citizen, and if that person decided to run for office, the EU may find itself playing legal catch-up to avoid anti-discrimination lawsuits.

Perhaps an area of land would have to be set aside of which all citizens without member states are nominally treated as citizens. One option would be to secede an area within Brussels, effectively creating a District of Columbia situation, or to grant a type of sovereignty to a certain building, like the UN Headquarters or embassies or the Sovereign Military Order of Malta. My personal choice would be for Neutral Moresnet to revert to unclaimed land, and implement Ido as the official language. You can’t have everything though.

Anyway, putting legal flights of fancy aside, even if “additional” means “separate and equally valid”, it would not mean that the EU could bestow citizenship on random people, and what sort of country is unable to even grant citizenship to inhabitants? Besides, if the EU wanted to play this game, it could already have done so, as the existing Treaties of Rome do specifically state “Citizenship of the Union is hereby established.”, which is surely ample justification for someone to claim they are a citizen of the Union and not of a member state. In fact, rather than the EU rushing to implement all sorts of work-arounds to entitle people who might make this claim, they would more likely say that national citizenship cannot be renounced by (or stripped from) someone without them also losing EU citizenship, and in the event of any legal uncertainty this would just make it impossible to revoke national citizenship (until a future treaty was signed, clearing up this question).

Conclusion

So, I think I have managed to prove that the Lisbon Treaty is simultaneously the worst thing to happen to Europe since fascism, the best thing to happen since democracy, and the most insignificant thing to happen since the straight cucumber “rule”. That leaves one question then: apart from the sanitation, medicine, education, wine, public order, irrigation, roads, the fresh water system and public health, what have the EU ever done for us?