1 Feb 2008

European Union: Insights into confederal structures


A cause for a United Europe has now been championed for more than seven decades now (the first such thoughts arising from Coudenhove Kalergi's book 'The United States of Europe' of 1931). However the first real steps to integration took place only after the First World War when on 23rd July 1952 the Treaty of Paris was signed, bringing into existence the European Coal and Steel Community (ECSC) with just six initial members; Belgium, Netherlands, Luxembourg, France, Germany and Italy. To compare, presently it comprises of 27 members from all of Europe, both Eastern and Western and continues to fetch new members given the prosperity, internal security and growth it promises.

This makes me call forth for a event-tracing exercise into the European Union as to how it came to being and its current developments. And the answer to the questions as to why I discuss this issue in this law-related blog is simply that the entire process which Europe is under-going is a process of constitutionalization (though I am aware that the 2004 Treaty failed only because of its usage of the term constitutionalization). The movement can best be described as one forming a confederation, about which I discuss in the second part of this post.

The 1952 ECSC had established (i) a Council (representing the Member States), (ii) a Commission (some sort of a ‘Super-National Executive’), (iii) an Assembly (similar to a Parliament) and (iv) a Court (to be known as the ‘European Court of Justice’). This movement to integrating of economic policies, within a successful working for five years, lead to two more treaties; the European Economic Community Treaty (and now simply the European Community Treaty) and the EURATOM Treaty (establishing the European Economic Energy Commission) which were signed on 25th March, 1957. These two Treaties established two separate Commissions and Councils as well and came into effect from 1st of January, 1958 (this date of 1st January is really of special significance to the EU, as you shall soon find). Soon thereafter, on 1st of July 1967 the Merger Treaty was signed, officially known as the Treaty Establishing a Single Council and a Single Commission of European Communities, which merged all the three Commissions and Councils into one and thus further integration.

However, upto this point of time there was only the six original members. The membership of the EEC (as it was then known) expanded only from 1st January 1973 when U.K., Ireland and Denmark subscribed as its members. With effect from 1st January, 1981, Greece became the 10th member of EEC and exactly four years later, Spain and Portugal also acceded to the EEC.

It was in 1987 that the idea for a Single European Market (called the ‘internal markets’) came up and with the Maastricht Treaty (or ‘the Treaty on European Union’) coming into effect in 1993, a lot of changes came up in this hitherto economically driven structure of the EEC. Besides the common economic policies that were covered within the EEC (which was now renamed to simply EC), two new pillars were constituted; (ii) the Common Foreign and Security Policy and (ii) Police Cooperation in Criminal Matters. Thus the EU was formed, with these three overriding constitutes and transforming it from an economic organization to a political organization.

Not only these, EU meant more implications for Europe; a new currency (called ‘Euro), a citizenship of its own etc. Gradually building upon, the Treaty of Amsterdam brought a ‘Social Charter’ into the domain of the European Union, rendering the organization to move forward with a improve upon the socio-economic living conditions within its Member States. In fact with this Treaty, a chapter on ‘Closer Co-operation’ was added with the EC Treaty, indicating the nature and extent to which the Members were coming close to each other, conferring a super-national institution the power to govern the policies and institutions of the Member States.

Looking for enlargement, the Treaty of Nice was signed in 2001 but perhaps the Council and the Commission hushed up further closing up of the Members when in 2004 they introduced the Treaty establishing a Constitution for Europe. Neither the Member States (considering the extent of political power they would have to yield and they becoming further powerless) nor the citizens of the European Union were too excited with the idea, which seems so workable as far as the economic portion was concerned but when it came to politics, issues such as cultural differences, compatibility with the practices and ideologies of citizens of other Member States, etc. were far too much to cause a rift and denounce the constitutionalization process. Consequently, the matter had to be put at a backburner.

But this setback did not dampen the spirit of the proponents of more united Europe and finally when the Lisbon Treaty (also known as the Reform Treaty) was signed in December 2007 [click here for the full text of the Lisbon Treaty], paving the way to a slower approach towards a United Europe. The UK Law Society has come up with a brilliant guide to understanding this Lisbon Treaty and this 28 page document is a worthwhile read.


Coming back to relate this to law, what I wish to express through the discussion is the movement of independent nation states to a confederation (which I am optimist enough to find it leading to a federation in a longer run).

To elaborate further, a Federation is an association of formerly independent states into a united whole, with a Federal Government and Parliament at the top to legislate and regulate upon the issues facing the federation on a whole while the legislative and regulatory powers affecting the sub-national and regional grouping vested with the State or Provincial Governments and Parliaments. The United States of America is a classic example to this type of formation.

On the other hand, a Confederation is an almost similar structure but for the fact that the States or Provincial Governments retain more power and the Federal Polity is a weak institution, dealing mostly only with matters relating to the relationship of the federation to non-member countries. The level of independence which the constituent member states may wish to keep it with themselves in essence determines the strength of the confederation.

To illustrate, at the time when ECSC was signed, the purpose of the original signatories was merely to come together in a particular economic area, with the institutions (Council and Commission) established only to ensure co-operation and heightened activity between the signatories rather than to establish a super-national power and thus it was not an illustration of confederation but rather only an international agreement between particular nations. It was only with the signing of the Maastricht Treaty that a super-national institution was born and thus a new institution was formed over and above the existing nations, to regulate certain common features of the Member States. Now that more and more areas are being assigned to the EU, it is moving towards a stronger confederation. The moment individual Member States lose national identities and cease to be known otherwise than an as constituent of the EU, they would form a federation.

Further illustrations to this regard are the United Arab Emirates, which is much stronger confederation as compared to the EU. Similar movement is taking place in the African continent with the idea of ‘United States of Africa’ being pondered over.

To further amplify the attributes of a federal structure, it is worthwhile to compare it with the unitary form of government. In a unitary structure, the identity of the component states is dissolved and it is just the national government and polity which is a recognizable entity. Thus what remains is just one whole. The power of governance may or may not be shared by the national government with the regional constituents of the nation. Such forms of unitary government are best established in nations comprising a small area and almost homogenous population whereby the classification and recognition of regional groups is rendered without a cause as opposed to a large country with heterogeneous groups of people, which require separate political association to govern and establish hegemony.

Like in a smaller country like Sri Lanka, it is worthwhile to have one national government determining for the entire nation with significantly less powerful regional governments just to ensure that the policies and agenda set by the national government are administered. Compare that with the a country as huge as the United States which hosts people with diverse needs, practicing different cultures, most cut-off-from-each other but for the same national interests, and require smaller political units (apart from the higher federal government to look after broader national issues such as defence, foreign affairs etc.) to look after the local needs and thus requiring provincial governments.

A confederation would fall somewhere in between where broader national issues requiring handling by a super-national entity but the differences between the provinces being highly contrasted enough to disallow a regional co-association and thus these provinces would seek to retain independent entities and would rather like to be known as separate nations, similar to one which EU is right now.

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