16 December 2009

Relations of the Union and the member states 6 – Transport

A federation connects states, transport connects people. But it is valid also on the contrary – a federation connects people and transport connects states.

Not even sovereign European states could live beside one another without effective transport, much less a European federation. Good working transport is a condition for existence of a single market in the federation but it is not its only importance.

Transport transfers not only freights but also connects people and it is equal important in a federation – for the project of a European federation even eminently important. The present European Union is an international organization in its essence and the member states governments take care of not changing it and that nobody other than themselves get to power ever. The European Union is a project of elites and its inhabitants are only few identified with it. If the Union was threatened with disintegration, only few inhabitants of its member states would fight for its existence. In order that the European Union's inhabitants identify themselves with it and that they perceive it as something which they cannot be without, they have to become its citizens and to obtain a share of decision-making in it (which is naturally impossible in an international organization based on cooperation of governments), but transport can and must play very important part too because it enables people from various member states to overcome a feeling of isolation of their member states and easily to get contacts with people from other states. Only that way Europeans will get a feeling that they are at home not only in their home (birth) state but in all Europe (the Union).

Nowadays, transport among individual European states is very difficult sometimes and it rather puts obstacles to free movement of persons often than makes it easy. It is especially a case of rail transport. In every state the railway has been run in other technical conditions and so new vehicles (especially locomotives) has to obtain a licence separately in every state, somewhere locomotives has to be changed in state boundaries because of difference of technical conditions in every state. Isolation of railway networks in different states makes railway transport in Europe heavier and slower. But it is not sole obstacle.

Also charges for international transport play their part, the cause that a short journey across a state boundary is more expensive than a comparable journey in a state inland. In international transport, railway makes an impression of luxurious option of bus transport. Financing rail transport is peculiar at all, a journey between two places is usually more advantageous taken by bus and too often also faster. A passenger has an impression sometimes that he uses services of a museum, not of a modern carrier (it concerns speeds, for example) and face to face with this feeling, a resolution of the European Union sounds almost absurdly that railway should be a backbone of terrestrial transport through Europe in medium range routes and should replace airplanes in them in future. It looks amazing in paper, but it will be scarcely realized in environment of tens of national railways (as well as other ambitious decisions of the European Union dependent on good will of its member states). On example of railway – when (almost) every state protects monopolist position of its principal railway transporter – it can be seen that a rise of a European federation will be painful in some spheres and railway is one of reasons why it is so difficult to establish it (the main reason is however self-centeredness and appetite for might of national politicians which we could see also observing the selection of first two lasting representatives of the Council of the European Union). There is really no other choice for a European federation than that transit railways pass to federation's competence because only that way, it is possible to ensure speeding up the railway transport among the member states and making it easier. A provision on railway is not unusual in federal constitutions in Europe, the constitution of Germany can serve as an example.

A necessity to connect a future European federation through concerns also air transport. In this case too, obstacles caused by existence of national sovereignty have been working. It is the most visible in existence of independent air traffic control in every individual state. It follows that if a plane crosses a state boundary, its fly over the territory of given state is managed just from this state. This changes with crossing every other boundary. For example, a fly from Rome to Brussels has to change its air traffic control nine times. It is similar in all Europe, because European states are small from the point of view of air transport and so planes weave in and out inside the boundaries instead of they fly directly. Frequent handover of control over fly's course slows down the fly, lengthen its route (and so cause needless fuel consumption), reduces security and makes not possible to use efficiently capacity of air space. But amount of air traffic controls is not an only obstacle, also different national methods of air control stand against air transport in a future federation. To establish a uniform air space in a future European federation is necessity which also a project of so called united European heaven certifies in present international environment of sovereign European states (at the same time however unwilling approach of the member states to this project certifies how little has been achieved since 1952, in spite of many solemn statements and optimistic advertising booklets).

In road transport, obstacles caused by European states' boundaries are not as visible as in air and rail transport. In spite of that, there are matters which are not being solved best by isolated member states. It concerns either vehicles themselves and the road network. Every state can have its own requirements (especially technical) on operation of the vehicles by which it can jeopardize free movement of persons and goods among member states at any rate. This actually touchs parameters of products in the single market which I wrote in previous post about. Also a power over the roads network is important for the federation because route location of the network exceeds boundaries of every individual member state, if a working all-European network should be established. The power of the federation over the road network along with the power over the road vehicles' parameters in interstate transport will make possible to regulate road transport so that it is used adequately and not displace other kinds of transport whose support after all the present EU has in its program.

I will not mention water transport more detailed, its importance is only marginal and so much coordination in a lever higher than of member states is not highly necessary here, however also this kind of transport cannot be out of federation's attention. On the contrary – pipeline transport has very great importance because it serves to transferring raw materials at great distances and over boundaries of individual states. Considering all-European importance of networks of this kind of transport, it cannot be in doubt that pipeline transport has to be in power of a European federation.

Because this post too is a commentary on the constitution's reading, I have to express to that how what I have described above will be formulated in the constitution's text. The question is what concerning transport should be in power of the European federation. The present European Union concerns itself for example also with city transport in its common transport policy, however it is a matter not exceeding borders of whatever member state with its importance and therefore it needs not to be solved at the all-European level. There must be a division of competences between the federation and the member states in the European federation and the federation has to have only it in its power what is essentially necessary for the federation as a whole. In this issue of transport, only transport across Europe, that is interstate transport, can be a matter of the federation. In what way individual member states will organize their internal transport, it will not be a matter of the federation. So it should be written in the European federation's constitution that transport among the member states will be in power of the federation without to be specificated how the federation will realize its power to regulate the interstate transport – it will be dependent on concrete circumstances. Kinds of interstate transport being in power of the federation should be enumerated, namely river, overground and pipeline transport. I do not name air transport because it should be in federation's competence wholly (not only in interstate traffic). As I have written above, European states are small from the point of view of air transport and difference between domestic and interstate traffic is not so distinct here is in other kinds of transport. Besides of that, it is not unusually also in other federations that air transport is in exclusive power of a federation – in Europe, it is for example a case of German, Austrian or Swiss federation.

29 October 2009

Relations of the Union and the member states 5 – Single market

The European civil war (usually called the World War) is far in the past now and so economical reason of unification is more important for the Europeans than maintaining peace in Europe. It is actually the most important reason nowadays, but important in every time and the European constitution has to pay attention to it. So far, I wrote only about free movement of persons all over the federation but importance of free movement is not only economic and therefore it is necessary to write about the economy more.

The main feature of federation is that member states' borders are not borders of economic entities (as independent states are), economic activity is run regardless of these borders and federation makes up so single economic area. But this single economic area grows up not by itself, it can be established and retained only if the federation has corresponding competencies enabling to create the single market and to defend it against activities of the member states.

As I have stated already, I wrote only about free movement of persons. This matter by itself however will not be able to create a single economic area. Inhabitants of particular states could travel freely to other states but various regulations for exercise of professions could be in force in every state and inhabitants of foreign states would have complicated access to them in comparison with the residents of the given state. It can be prevented only that way that the federation itself determines (minimal) requirements for exercise of certain professions valid all over the union so that every person of every member state can exercise them in every state of the federation. When manpower came up for discussion, a question arises naturally of its social security. For example, every economically active one, in the end of his (or her naturally) productive life, has to obtain an old-age pension corresponding to it what he has worked during his economically productive life, disregarding in what and in how many member states of the federation has worked. But I do not believe that the federation should be the only who will make a social system and pay off e. g. the old-age pensions of it – it should be a matter of the member states – although it can be seen handy in the case of persons working in more member states. But it is possible to retain the social system in the hands of the member states and to use organizational possibilities of the federation having a provision in the federal constitution saying that the member states cooperate in social security of working people with each other and with the federation. I prefer however to add the words “if maintaining the single market requires it” because every power of the federation will have a tendency to spread in powers of the member states, therefore it is advisable to limit every federation's power with an accurate wording, especially in that spheres where competencies should be divided between the federation and the member states – and the social system is the case. What I have written about the social system, will be valid also about a health system naturally which is in fact its part.

However, ensuring free movement of manpower all over the federation is not sufficient for creating a single market in the federation. In the same way, it is necessary to remove any obstacles for goods and services movement and to unite rules of working of economic subjects in all member states. The first important principle is that no member state is allowed to impose a customs duty or any other fee on goods and services coming from another member state. It can be seen obvious for already in present non-state (international) European Union, there are not any duties among the member states. But if the provision is not in the federal constitution, it could happen that any member state could impose a duty on goods or services coming from any other member state in an extraordinary situation (see present economic crisis and attempts of some EU members to boost own narrow national solutions, though not in duties field).

Another provision must concern a common currency. A single common market cannot be created if every member state has its own currency. There must be therefore a provision in the federal constitution saying that only the federation can issue money and that the member states cannot do it and have their own currency. The federation will naturally issue regulations on the common currency of the federation. Also the bank system is closely connected to circulation of the currency and because (commercial) banks have great (even decisive) influence upon circulation of money and hence upon all economy, it is necessary that the federation has a power to issue regulations concerning the bank system and every financial institution at all and a power to execute a supervision over them. The provision on the currency will require also provisions about an institution which will supervise the currency, that is about a central bank. But more about it in that part of the constitution where institutions of the federation will be described.

An obstacle for creating the single market in the federation is also that different states can have different requirements on technological parameters of products, on their composition, on their influence on environment, on their labeling and so on. Products coming from one member state could be so rejected in another member state by reason of not satisfying these conditions. It is necessary accordingly that the federation has a power to issue regulations about parameters of products and what concerns them being valid all over the union. It is not said that any state is not allowed to adopt more rigid standards but it cannot demand them of goods (and services) coming from another member state. Uniting regulations obviously cannot concern only the goods themselves but also their production and transportation because all these economic activities noticeably influence the market. It is however necessary to determine concrete competencies of the federation in the field of requirements on goods and services because these matters are related to many other matters and if the federation decided about all of them, its power would be too great. In determining of the federation's powers over the economy it is therefore necessary to take into consideration how much every provision will serve the single market. In fact, it is necessary to secure that economic subjects have the same conditions in all federation. No member state will be allowed either directly either indirectly to advantage its producers (and carriers etc.) and to disadvantage the ones from other states. It can happen, for example, that some member state requires not so strict standards concerning handling materials damaging environment of its producers as other states do and so products having origin in this state will be cheaper and easier to be sold than products coming from the member states whose producers have to invest money into environmental provision of their production (and transportation) and therefore their products will be more costly and less competitive. The same concerns also security standards of products because their lower rate in some state can unfairly advantage products coming from this state. It is quite understandably.

Other thing is less understandable, namely that it is necessary to regulate working conditions of economically active people all over the federation; because here, the federation interfere with powers typical for member states and reserved to them. But I will introduce an example from an extra-European federation displaying that it is necessary. In the United States of America, a federal law prohibiting to transport goods made by children among the member states got to the Supreme Court of the federation in 1918. Though the law came formally under the power of the federation to regulate interstate commerce, the court reached a conclusion that the true reason of the law was to determine minimal age of employment which was not an explicit power of the federation. A pressure to regulate conditions of workers was however persisting in the USA, so a similar law was passed in 1938; it came to the Supreme Court again and the court designated the law complying with the competence of the federation to regulate commerce among the member states now. If barriers among the member states are abolished and the states then cannot hinder the import of goods from other member states, conditions valid for all states without exception must be determined by the federation. A demand on power of the federation over this domain is therefore undoubtedly, it is however necessary to avoid that power of the federation grows too much and intervenes in social systems of the member states. This can be avoided in my opinion in that way that that the provision giving to the federation a power to regulate production and transportation of goods and to regulate services (including the money services) is granted only to the extent that is necessary for establishing and preserving the single market of the whole federation.

In order that all member states (possibly other territories of the federation) are united in single economic area, the federation has to have a power to determine measures and weights. On the contrary, I do not believe that it is necessary that the federation deal with matters of time (including consequently the summer time (daylight saving time) like in north-American federations and unlike in the present EU or, e. g., Germany) because it is not essential for the single market.

Other important matter concerns law on companies and other economic subjects acting in the federation. A single market requires that companies can be established, act and be dissolved under the same condition in the whole federation. The current European Union has its single market not yet established and this natural requirement is provided clumsily through a so called “European Company” in it – but creation of this institute even in intergovernmental environment of present international European community shows in itself that this matter belongs naturally to powers of the federation, not singular member states. What is also important in commercial law is economic competition and relations among companies at all. This is an area in that already the present EU is active, fair competition and control of it is its competence – therefore I hope it is unnecessary to add more words about it in relation to future European federation's power.

A question is what to do with agriculture. In present time, it is a common policy of the European Union members, which everyone knows, and various people could presume that this economy domain will continuously pass over in power of newly established European federation. But if we look into constitutions of other federations, we do not found much about agriculture in them, if something at all. The question is why agriculture cannot be handled as whatever else part of economy. The common agricultural policy raised in quite different circumstances than which are today and will be after an European federation comes into existence. After the World War II, Europe was divided and had to import certain portion of foodstuffs because it was not capable to produce them in sufficient quantity – it caused a security hazard. With introducing the common agricultural policy the objective was fulfilled – Europe (the European Economic Community) became self-sufficient in food products but because essential part of the policy have been made up with subsidies for agricultural production, sufficiency became soon abundance. This has necessitated introducing production quotas which has been complexly divided among the states. The common agricultural policy is very costly in addition, costs on it constituted 45% of expenditures of the Community in 2004. Another objective of the policy is to support the countryside, to avoid its depopulation and to grant high living standard to farmers. Four percents of EU inhabitants feed on agriculture which is in great disproportion to expenditures on agriculture, besides it is not evident to me how the common agricultural policy of the EU can still avoid depopulation of countryside today if only so small amount of its inhabitants feed on agriculture.

The greatest advocate of the policy is France such that – if I pass over today not more needful demand on food self-sufficiency – maintaining (and creation too) the policy can be put on account of egoistic interests of this state (see also the articles French farmers survive but multinationals cash in on EU subsidies or Fraud Plagues Sugar Subsidy System in Europe). It is not usual in other federations that agriculture comes from power of the member states to power of the federation, care of agricultural production and of own landscape is matter of the member states as well as of maintaining acceptable living standard of countryside inhabitants. Many of present common agricultural policy mechanisms will anyway pass in competence of the federation after its creating for they are competencies that belong generally to the federation. There are for example import duties on agricultural products from outside countries because import duties are a matter of federation at all. Similarly, regulations of breeding agricultural animals and their transportation as well as regulations about protecting animals and plants from epidemic diseases, about storing and transporting foodstuffs and similar hygienic, security and veterinary regulations and regulations applying to environmental protection in agricultural production. Words speaking about a power of the federation to make these regulations ought to be the only provision concerning agriculture (including fishery and forestry) in the federal constitution, because they are necessary for the single market (of agricultural products). I do not believe that a return to insufficient coverage of food consumption in Europe threatens so there is no reason to give a power of extra-market regulation of agriculture to the federation as it is in present EU. If the European federation wants to support agriculture some day, it will be able to do it the same way as whatever else.

Important part of present economy are patents, registered trademarks, production procedures, trade secrets and similarly, with other words intellectual property; it is also part of commercial law that was already mentioned above. In such interconnected complex as a federation, it is not possible that another law on intellectual property is valid in every member state. It could be got around in the close connection of states but above all an obstacle in the single market of the federation would arise if every state would have its own intellectual property law. That is the reason why legislation about intellectual property has to be an exclusive competence of the federation.

This is now all what I wanted to write about a power of the European federation in economical field. If I have forgotten something, I will write it in some other post where other matters concerning relations of the federation and the member states will be discussed.

19 September 2009

Associated states

In this post I will return back to an international policy of the European federation because I have realized something yet in connection with it. It will be very probably necessary in future that a category of to the European federation associated states will be. The fact points to it that not all member states of the present EU will want to join the European federation (a realistic estimate is that majority will not want). It is therefore necessary to ask a question what will be relation of the refusing states to the new federation, whose members they made up a close community with before its rise. It is certain that they will not be willing to throw away all what they have reached in the integration to present days (e. g. the common currency). If present members of the European community will not access to the European federation, they will be non-members as well as the states which are not members of the EU today. But in comparison with present non-members they will be (due to present connection) in privileged position. This privileged position, less than full membership in the federation but more than ordinary full independent states relationship, I call an association.

Some provision needs to be in the European federal constitution. I hold a view that every state can associate to the European federation under different circumstances, on different conditions accommodating itself, therefore not all associated states need to have the same position toward the federation – similarly to present EU arrangement where some states are members of monetary union and some are not. There must be however some minimal requirements which states aspiring after the association have to meet so that the federation may give them a status of privileged partnership. These minimal requirements should be part of the federal constitution so any candidate state cannot obtain less strict requirements by the European federation.

First question is what states can associate to the European Union. Many people would start with „Every state in Europe which...“. But the association partnership should not to be restricted only to European states; present existence of dependent territories of some European states (of Denmark, France and the United Kingdom) requests it. These territories are not fully integral parts of mentioned states and therefore cannot be parts of the European federation along with their maternal states (inhabitants of the dependent states want not often – see their membership in present EU), however neither the three states nor their dependent territories want break off their mutual relations at the same time. The status of an associated state is therefore an only solution how to preserve the connection of mentioned overseas territories to corresponding European states if the states access to the federation but these territories will have to be states associated to the union as a whole not to any of its member states because the second one would be in contradiction with the principle that no member state can have its foreign policy.

What should be the minimal requirements towards the associated states? The first one of them is that an associated state should not act in contradiction with interests of the European union. It is not so self-evident requirement because some European states can be easily imagined which will not want to access the European federation and generally will not want to join other states more closely than by economic treaties; and these states could take advantage of the association to the European Union only one-sided, as a relationship advantageous only for them, from which they will only take but nothing give for it. A regard to the European union interests is the least what an associated state can give in exchange for the association. What „regard to the European Union interests“ means concretely cannot be said exactly in advance; it will depend on concrete political and international situation. It can be said commonly that the associated states should not do anything what could harm the European federation. I believe that it is not necessary to mention economic and business matters, I doubt not that the association treaties will specify relations of the associated states to third states in this sufficiently. But another thing is political and military influence of the European federation. Should the federation give it up? Europe has to learn – with arising the new federation – that Europe itself will be liable for its own security and defense at last and not an outside superpower as in time of its division. And not only the federation's member states but also other European states, though “only” associated, must accustom themselves to it. Let us take present Britain's example: this state is a member of the European union but holds “special” relationship with the United States of America, it participates all military campaigns of them and want to give the impression at all that it is still a worldwide power and that it is not an “ordinary” one of many parts of Europe. The east-European states on the other hand fear of Russia so much that they want to be defensed by (the same) extra-European superpower and do not believe in Europe. But no European federation's associated state can act like this (if it want to, it cannot be an associated state). If an associated state should remain independent from international point of view, I do not know whether it is possible to bar it from doing such thing like sending its forces of its own free will to battlefields somewhere outside of Europe without a compliance of the European federation but at least the associated states should not retract such acting in Europe itself. So that the defensive and military capability of the European federation may come into being the associated states should not be allowed to permit to install foreign (that is to say not of the European federation or of another associated state) military forces in its territory – for simply the defense of Europe ought to be a thing of Europe. In present time, three small east-Baltic republics have not their own air forces and their defense from air has been provided with the air forces of other NATO members. If this principle works today, it can work in the future in all-Europe extent too. (Present condition (the USA or other military installations in Europe) must be dealt in a transitional provision in corresponding part of the constitution with.)

It is obvious that European states will want to join the European federation mainly by economic reasons. One of the main reasons why European states access to an idea of partial restriction of their sovereignty (which they guard as an treasure otherwise) today is an idea of economic advantages arising of the association. To avoid an economic downfall and to maintain prosperity is the most important reason for many states (for some of them the only one) why they participate in the European integration process. The economic part of the integration came farthest from establishing the European Coal and Steel Community, over tariff union and integrated economic area to monetary union what is actually an accomplishment of integrated market construction. Also the states that want not to be members of the present European Union take part in the incomplete (without the common currency) economic union, therefore just this grade of alliance should be the minimal measure of association in the future. It means an economic union between the European federation and the associated state in exchange of goods and providing services with the exception of finance services that as a specific and sensitive domain should not be involved in requirements towards association candidates as well as the common currency – a monetary union of the European union and its associated states is not necessary (also because the federation would not have its currency under its full control, what is a disadvantage of present European currency).

The other requirement for associated states is a question of sharing (common) European values. The association is not a common bilateral commerce treaty but closer partnership and so a requirement for observing the same values is understandable. The question however is how to define the demanded requirements. To write „the associated state has to profess the same values with the European Union“ is insufficient because it is not clear what values a candidate for association has to profess. If some state labours for status of the associated state, it must first fulfill conditions for giving the status of association to it and the conditions must be concrete in order that the European federation can control fulfilling the conditions. Also for the time of the association observing the mentioned conditions (values) has to remain possible to be controlled. It is obvious of it that the European values demanded for association candidates cannot be determined only so broadly as e. g. democracy, rule of law, respect for human life and similarly. For controversies between the European federation and its associated states about explanation of these broad terms can happen in certain cases. But if condition are determined doubtlessly which a candidate for association has to meet as well as principles which must not violate, there will be minimal possibility of such different views and controversies. And if I have written that the same values should be demanded from the associated states which profess (will profess) the federation, then it is nothing better than that the bill of fundamental rights which will be part of the federal constitution will be valid also for the associated states. Sharing the same values cannot be expressed better and be ensured more effectively – with other words candidate states have to acknowledge the same human rights as the European federation which they want associate to. It has been demanded for decades already that Europe ought to be a space where democracy and law rule and it is necessary that also the associated states will be submitted to these principles the more so because especially in the beginning it is expectable that the European federation will include only a little part of Europe and the majority of present EU members will vote the option of associated states.

It follows the fact that the associated states will have to submit to the part of European federation's constitution enumerating fundamental rights, that a method must exist which ensures that the mentioned rights will be observed and exacted really. Another exacting than the judicial one cannot be imagined, at least as far as the associated states are concerned, for in their territory the federation will not be able to use its police or other order forces (unless (in case of present Britain, Denmark and France's dependent territories) an association treaty determines otherwise). If the associated states should be submitted to provisions of the European federation's constitution, all controversies resulting from the mentioned basic rights bill logically should to be judged just by the federal court that will watch over the federal constitution, that is the Supreme court of the European Union. Establishing a separate court (roughly a federal court for associated states) submitted to the supreme court which should be then a court of appeal for the mentioned special court can be also taken into account on organizational ground. It can seem to somebody that there is a contradiction between the fact that the associated states should remain independent from international point of view in frame of the association (obviously with exception of present dependent territories of European states) and the fact that they should be partially submitted to another state's justice. However, we can find an example of similar arrangement in present Europe. The Council of Europe member states have established the European Court of Human Rights making possible to bring suits at it to their citizens and they bound themselves to acknowledge judgments brought in by it. The Council of Europe is an international (intergovernmental) organization (the EU today is too, by the way), its member states give not up their independence in favour of some superior state (e. g. a federation), in spite of that they submit themselves to judgments of that court willingly. For this reason I can see not a single reason why the same principle cannot be valid in relation of the associated states of the European Union and the Supreme Court of the European Union. The only difference between the European Court of Human Rights and the Supreme Court of the European Union would be the one for the associated states that the second mentioned one will be a state court whereas the present court in Strasbourg is an exclusively international institution.

Not all controversies and legal questions of the association states need to come out from the bill of basic rights, also other controversies (for example commercial ones) between the two sides could arise. The most advantageous from the viewpoint of an organization is to entrust also these matters to the same federal court that will verdict controversies coming out from the federal bill of basic rights. The respective provision of the federal constitution should correspond to it and speak about all controversies and legal questions coming out form the association relations.

Another question that needs to be mentioned is a question of citizenship of the European federation and of its associated states. The associated states will not be part of the federation and if they are independent in the moment of arising the federation, they will preserve their independence also in the relation of association. There is no reason to give the citizenship of the European federation to the citizens of these states, besides in the opposite case all laws of the European federation would apply to citizens of the associated states and it is what the associated states will not want (otherwise they would became direct members of the federation). But there will be a problem, if we think about present dependent territories of Denmark, France and the United Kingdom. Because a membership of Denmark and the United Kingdom will be unlikely just from the beginning, I will write about overseas territories of France as example. These territories are special part of the French republic but whereas France is part of the present EU its overseas territories are not part of the EU mostly. The inhabitants of all these territories are citizens of France and it is the problem. I have already written in previous post that after creation of the European federation, the citizenship of the federation cannot be established otherwise than to give it to everybody who will be a citizen of its member state in time of establishing the federation. It would however mean in the case of the France's overseas territories that all their inhabitants as citizens of France would became automatically also citizens of the European federation; it means that these territories would became also part of the federation. For the federation cannot give its laws to a territory but to citizens and inhabitants. But if inhabitants of the France's overseas territories would be citizens of the European federation, the federal laws would apply to them as well as to other citizens of the federation – because it is impossible to divide citizens of one state to citizens with greater rights and obligations and to citizens with lesser rights and obligations. It is not also possible to give the citizenship of the federation to all citizens of France (and Denmark and the United Kingdom) with exception of inhabitants of their overseas territories (and colonies) because it would mean that the inhabitants of these territories would be citizens of France (and so on) but not citizens of the federation. But it would be in conflict with the provision of the federal constitution saying that no member state can give its citizenship to anybody who is not a citizens of the federation. From the mentioned reasons I cannot imagine other solution than that to detach the overseas territories of (not only) France from the framework of their state and to establish them as associated states of the European federation out of a frame of any its member state. In every case, because I am writing about provisions of the constitution, I will close this section with the sentence which should be written in the constitution and which results from the previous written, that is that citizens of the associated states will not be citizens of the European federation.

I have written in the beginning that the association will be a closer relationship than a mere friendly neighbourhood and because it is in interest of the European federation that as many as possible European states join it, there is good idea to enable them to be in close contact with European federation's lawmaking to the associated states for laws of the European federation will influence on the associated states, especially in economic sphere. I mean by the close contact with the lawmaking that the associated states should have their representatives in the parliament of the European federation as it is usual in other association relations (e. g. the USA and Puerto Rico that is however an nonindependent associated state). There will be nothing surprising now if I write in advance that the European federal parliament will have two houses as in (almost?) every federation. The question is in which house of the two the associated states should have their representatives. I want not to anticipate about form of the parliament of the European federation now because I will write about it in the future but I have to mention both houses of the federal parliament now. In federations, both houses differ that the lower house is considered as a representative of the whole people of the federation (for that reason number of chairs (deputies) is distributed among the states according their inhabitants number), the upper house is considered a representative of member states (therefore each of them has usually the same number of deputies). Because citizens of the associated states will not be part of the federation's people, they should not have their representatives in the lower house where the people of the federation should be represented but they must have them therefore in the upper house. The representatives of the associated states should have the same rights as the member states representatives in the upper house but with it exception that they will not be able to vote (about laws and upper house resolutions); I add one restriction more (fully understandable), namely that the representatives of the associated states should have access to secret informations.

Considering the deputies of the associated states in the federal parliament, it is necessary to respond a question about number of their deputies in this assembly. The reasonable number is only one representative for each associated state in the upper house, for simple reason: in the beginning undoubtedly only small number of European states will join the European federation and majority of present EU members (and other states too) enter into a relationship of association with the new federation at most. There will be majority of associated states in Europe for a certain time and greater number of representatives of the associated states in the upper house would outnumber the number of representatives of the member states themselves which would not be useful though the associated states representatives would not have a right to vote.

There is one provision of the constitution finally which I consider necessary. It is possible that some state will associate to the European federation because it will be advantageous for it but it will not have an interest to act as a true associated partner and will therefore violate rules of association – in that case a possibility must be to take away the status of association from the relevant state and corresponding provision should be written in the constitution.

21 July 2009

Relations of the Union and the member states 4 – Citizenship

A thing that affects a bit what I wrote in previous post is a question of a citizenship. If a federation should arise in Europe, a question of federal citizenship will arise. This is a question unknown to present European unification; the Lisbon Treaty speaks about the citizenship of the European Union but the European Union is not a state and therefore this thing is actually unreasonable in the treaty (an international organization cannot have its citizenship; with other words, nobody can be a citizen of an international organization).

In this post, I will be interested in a question which should be a relation between the citizenship of the European federation and the one of its member states for foreign persons, that is the rule of naturalization; I will not deal with that how the particular requirements for obtaining the federal citizenship should be, it will be a matter of a specific law and it can vary in the time. So, starting possibilities are three: a) the federation will give the federal citizenship and the citizenship of the member states will be derived from it; b) the member states will give their citizenship and the federal citizenship will be derived from it; c) the federation and the member states will give their citizenship independently on each other. The first case would mean that the member states would be dependent on the federation in giving their citizenship, the second case would mean that the federation in the same thing would be dependent on its member states.

The citizenship of the federation can be defined as an automatic counterpart of the citizenships of the member states, that is to say that everybody obtains automatically the federal citizenship who obtained the citizenship of some member state of the federation. This way the situation will have to be realized in the moment of arising of the federation (and it will have to be written in the federal constitution – in section Final and transitional provisions; the federal citizenship cannot be given otherwise to the Europeans in the beginning) but the question is whether it should be valid as a permanency. If we admit this version, it would mean that the member states will be who would decide about the membership of the federation – because who would accept their citizenship would obtain in addition also the citizenship of the federation. It would mean that the federation would not have any control over it who obtains its citizenship. If we look around if some federation has such (or similar) method of giving its citizenship, we find one and just that one which usually is a pattern for the federalists in Europe – Switzerland. We can read in chapter 37 of its constitution that anyone who is a citizen of a commune and of the Canton (= member state) to which that commune belongs is a Swiss citizen. It looks at first appearance that the federation is held in captivity of its member states (“cantons”), the situation is however not so easy how it can look from the provision of this article. For the next article – 38 – brings a complement: the federation shall legislate on the minimum requirements for the naturalization of foreign nationals by the Cantons. So we can see that the federation rejects to be fully dependent on its member states in this matter and that it specifies to its member states at least partially what should be the regulations according to that they give their citizenship. It is logical because in other case the federal citizenship would not have the same importance at all its holders – some people could obtain the federal citizenship more easily than the others due to some member states, and inequality would arise. The consequence of this concept however is that neither the federation nor the member states can freely decide about it who they accept as their citizen – each side restricts free activity of the other.

Other concept can be found in the second of the patterns for the European federalists, in the United States of America (a typical European representative of this concept is Austria). It is written in section 8 of article 1 of the USA constitution that the federal parliament shall have power to establish an uniform Rule of Naturalization, then in amendment 14 is written that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Here, unlike in Switzerland, the member states are subordinate to the federation in the question of the citizenship; no member state cannot give its citizenship to anybody who had not already obtained the citizenship of the federation. The member states cannot actually influence at all who will get their citizenship because they must give it to every citizen of the federation who will settle in them. The member states are weaker here than the federation in the first concept because in the first concept, the federation gives its citizenship only to that one who has obtained the citizenship of some of its member states, but itself can order to its member states what should be the minimal requirements that an applicant for their citizenship has to meet – on the other hand, in the second concept, the member states cannot order nothing to the federation.

We are coming to a question now, how this matter should be regulated in the European federation – whether to select the concept where the citizenship of the federation should be preferred to that one of the member states or on the contrary the concept where the citizenship of the member states should be preferred to that one of the federation or whether another concept should be adopted.

I assume that the concept which is in the United States of America (and in European federations, maybe except in Bosnia and Herzegovina) is inappropriate for Europe. I will cite from the article A European citizenship in a European federation published in the web Federal Union: Why do different countries have different political systems? Because the political system is not simply a narrow literal expression of the rules by which a country is governed. It is an expression of the culture of a country. It shapes that culture too. But then most cultural phenomena both influence and are influenced by the societies in which they exist. If the political system is different one country from another, so is the citizenship. Citizenship is part of that political system, it is a reflection of it. Yes, Europe forms not one cultural nation like the USA or Austria, on the contrary - it is very diverse in culture and this diversity ought not to be disturbed by the European federation (see my proposal of the preamble of the federal constitution). Giving its own citizenship according to own deliberation belongs to cultural distinction of every European state, none of them ought to be compelled to accept as a citizen everybody who will move in its territory.

However, I want not to say with it that the European federation should adhere to the concept of Switzerland or even the intergovernmental one of present EU (where the European citizenship is merely symbolic without any real signification) – the federal citizenship cannot be only an adjunct to the citizenship of the member states as the author of a “federal” European constitution proposes in its article 4. In my opinion every state (and federation is a state) should have full control over it to whom it gives its citizenship. Therefore it seems fatuous to me that a citizenship of the federation exists but the member states in fact decide on it, though maybe (as in Switzerland) according to instructions of the federation. I believe on that account that the European federation and its member states should give their citizenships independently on each other and only one limitation should be that the member states may not give their citizenship to anybody who has not the federal citizenship.

One thing follows from this: in such arrangement some persons will certainly occur who will have the citizenship of the federation but not the one of any member state, either temporarily because they did not yet meet conditions for obtaining the citizenship of the state in that they settled, or constantly because they will not aspire after it – such possibility cannot be excluded, on the contrary, it is likely. The question is whether it is undesirable or it is not. I believe that it can make some problem chiefly in social domain but the people without citizenship of any member state will live in a concrete member state and will therefore follow its laws; in addition federal rules on employment conditions and social care for employees of federal administrative will have to exist and the people lacking citizenship of any member states can be add to people in that category in case of necessity. There is also no need of having fear that basic human rights would be removed from people without citizenship of any member state and with only federal citizenship – these rights will be protected by a bill of basic rights which will be part of the federal constitution and which will be in force in all federation territory and valid for all citizens of the federation regardless of their member state citizenship.

The concept seems to me really the best that both the federation on the one side and the member states on the other side will give their citizenship independently on each other regardless of that this concept is (maybe) unusual. Such concept is in force perhaps in Bosnia and Herzegovina too, I am of that opinion from the Law on Citizenship of Bosnia and Herzegovina and the Law on citizenship of Republika Srpska (one of its member states, so called „entities“). I judge from these two laws that citizenship of any of its member states is not a condition for naturalization in Bosnia and Herzegovina nor citizenship of Bosnia and Herzegovina is not a condition for acquisition of citizenship of any its member state (“entity”). It is written that a citizen of a member state (“entity”) becomes herewith a citizen of the federation but I did not find a converse provision in neither mentioned law. It is therefore possible that conditions in Bosnia and Herzegovina are the same as those which would be in the European federation if the rules about its citizenship that I have described would be enforced. From the perspective of the constitution, these rules would not demand any mention about the member states citizenship except of that I have already talked about, namely that the member states will not be able to give its citizenship to anybody who holds not the federal citizenship, about the citizenship of the federation only that giving the citizenship of the federation will be fully in power of the federation (maybe with addition that the federal citizenship can be obtained by birth, descent, adoption, marriage and naturalization).

06 July 2009

Relations of the Union and the member states 3 - Free movement

I tried to concentrate chiefly on the issues of the European federation's acting towards outside in previous two posts. Now (not only in this post) I will discuss the matters by which the European union will act as a uniform state towards inside.

I will begin with the matter of internal borders. The borders between the member states cannot be abandoned naturally – then the member states would disappear and the European union would become a unitary state – but they must be free pervious in a federation. The current mode of the movement between the member states of the European union is (as in the main everything) determined by an international treaty from that the member states as independent states can withdraw; but if they want to restrict the movement in its borders, they need not illegally withdraw from the treaty, the treaty itself makes it possible and the member states exploit it, as we know. But it is not possible in federation that the member states restrict transit of their borders by whatever reason. Therefore the federal constitution has to contain a provision that ensure free permeability of the member states borders. Actually, no federal constitution which I have read contains some similar provision because this matter is considered self-evident – but Europe is a special case; only the constitution of Germany and Switzerland contains a provision that all the citizens of the federation have freedom to move and stay in entire area of federation – but that is a bit different thing, it ensures that no member state can avoid other than its own citizens to stay in its territory. Such similar provision should be also in the European federal constitution but in other place, in basic rights chapter which I will discuss later.

The matter of the free movement between the member states affects three other matters – free movement of persons who are not citizens of any member state, the rights of citizens of one state in another state and prosecution of persons who have committed a crime or an offence in one member state and escape in another state.

The first matter – free movement of foreigners in territory of the federation (that I have already mentioned in previous post): If inhabitants of the member states can freely go over the borders of their states, it must naturally hold also for all, not only the citizens but also those who have neither the membership of the federation nor of any member state. That is, if somebody is admitted in the territory of the federation, he can move and stay in all its territory. It is obvious from it that no member state can decide on foreigners admittance to the union territory separately because it would mean that one member state would decide who can be present in other member states territories. Uniform rules of admittance to the territory of the federation have therefore to be and the federation will be who ought them to execute. Determining the rules on banishing from the union territory and their executing has to be also in power of the federation. At this matter, I have been recalling repeatedly the condition of today and the question, whether this matter cannot be put in the hands of the member states acting together. That is naturally possible as it is roughly done today, but it is necessary to realize that the current like-union is an attempt to solve the quadrature of the circle, that is to say how to unite Europe so that the member states need not to unite (unity without unification). It is not possible to imitate the present arrangement for the future – all what applies to entire union and what transcends the needs or ability of one member state needs to be given over to the federation.
The second matter – a status of the citizen of one member state in another member state – could be arranged sufficiently with a list of basic rights holding in all Union territory which will be part of federal constitution as I have already mentioned above.

The question of prosecuting persons who have committed a crime or an offence in one member state and escape in another state – the third matter – is certainly a delicate matter, because the criminal law ought not to come under the domain of federal activity; every member state itself should determine its own rules of its citizens acting and persecute broking these rules. It is easy for inhabitants of whatever state to avoid a punishment by escape to another state in federation where is free movement of persons. The solutions are three in the main: either the authorities themselves of the states where the crime or offence was committed will search for perpetrators in other member states or such searching will be put in the hands of the federation or finally the procedure will be the same as today, i. e. the intergovernmental way. The current manner is the least appropriate for it is slow and complicated. Its only advantage is that it has meticulous respect for sovereignty of individual states, such solution is nevertheless hardly consistent with existence of the federation. The other two ways of solution of this matter mean that the member states will accept that the federation will assist in this sphere, concretely in a form of a federal investigation authority. Such a federal organization would probably work similarly to current Interpol (ICPO) – to investigate persons who committed a crime or an offence in a member state but escaped in some other member state, but unlike INTERPOL with a power to exercise it in all union territory independently on the member states. In addition to that, such federal organization will have to be created in every case – if federal laws arise, crimes and offences against them naturally will arise and some federal body will have to investigate them (and to punish them); and if we will have this body with all-federation sphere of activity, it is natural that it will serve to the member states in cases that exceed their boundaries but are in their competence.

There are also other matters in criminal sphere which can be in competence of the federal investigation authority (roughly it what deals EUROPOL today with) but they should be mentioned in another place of the federal constitution and therefore I will not discuss them now.
So the conclusion should be from the point of view of the constitution that the European federal constitution ought to guarantee free movement between the member states in all cases (no member state will not be competent to close its borders, not even for a limited time) and the constitution should determine that the federation will create an institution that will organize the investigation for persons prosecuted in some member state and stay somewhere else in the union territory. The precise wording of the constitution text I will state in the end of this section “Competencies”, as I wrote earlier.

07 June 2009

Relations of the Union and the member states 2 - Foreign policy

There are also other things following the provision on foreign policy that was written in the previous post. I will discuss them now.

If it is said that the federation is one entity towards the outside, many consequences go out from that which need to be mentioned explicitly, I believe.

The European federation will act with non-members states and will represent them because the member states will not be allowed to have their own foreign policy. But the same principle should be applied also in the cases where the member states of the European federation need not act with any states but the situation will be that they act outside their own territories. What I have in mind the international seas are. It is an area where the EU member states can get in contact with non-member states (fishery) and some conflicts can easily occur. There is another area similar to the international seas where interests of various world states can collide - the space out of the Earth. For that reason the European federation should be only one acting also there. It can be seen needless maybe because the space research is an expensive matter and almost no European state can afford it independently (that is the reason why the European Space Agency arose) but in spite of that the greatest states of Europe or a few of them together could make their space activities though they are demanding.

Nonetheless I will write on some matter now which can seem contrary to that what I have written above. The European federation member states will not be allowed to act independently outside the union; but in some cases I believe it can be allowed. The spheres of independent acting of the member states which I have in mind are culture, sport and science. The culture is an expression of European diversity and need to be united by the European federation in no way, the same applies to the sport. These two fields are not connected with a power, so any collisions with some non member states come not into consideration (at least I believe) - therefore the European federation members can be allowed to act independently also with non member states in this domain. The same is a matter of the science although the federation can have more interests in it; for many science projects (especially in nature sciences) are so expensive that they need to be accomplished with the powers of more than one member state and at least a coordination of the federation would be appropriate. But where the powers of the member states are sufficient, they could act with non-member states in this field. The sport is the third domain where the member states could deal with non-member states. Today, for example, Poland and Ukraine arrange together the world football championship, the EU member with non-member. In current EU it does non matter because the European union is not a union and its members are independent states. However, I believe the member states could act like this also in a true union and Poland could arrange the above mentioned championship with non-member Ukraine (or other non-member state) in such circumstances too. Why I believe that the European federation member states can act independently outside the federation in this case? The diversity of Europe manifests itself most in culture and related fields and establishing the union in Europe ought not to change it. The states of Europe - as I have already written before - got very accustomed to their independence and it is not necessary to take it away from them in all cases. And I believe that the common European Olympic expedition under the EU federation flag, for example, is not necessary for Europe's welfare. It is obvious to me that the federalists would well welcome it in the present time but the national politicians would be able to agree with it but the foreign policy, for example, would preserve by themselves at the same time. And there is more necessary a real union than mere symbols of unity. However, back to the member states independent action outside the Union.

The culture, sport and science are not about power, so I think these matters need not to be managed by the Union outside the Union. However, some difficulties can occur also in this field. Let us imagine that Poland would want to arrange the football championship not with Ukraine but with Belarus and the European Union will have bad relations with it and sanctions against it (hypothetically). Then: the independent acting of Poland would be in accordance with the federal constitution in the sport field but not in accordance with the federation interests. Therefore the federal constitution should contain a statement that the member states can act independently in the culture, science and sport matters outside the Union if it is not in contradiction with the interests of the Union; and also the member states ought to inform the Union about their intentions and approach if they will act outside the Union.

If only the European federation can have its foreign policy and the member states cannot have it (except of the matters mentioned above), only the federation can also determine economic relations between the Union and the foreign states. I believe that I have not to develop it much because the authorities of the EU negotiate with the third countries in trade matters already today (although they need a final consent of the member states governments today). The European federation ought to be one state towards the outside and therefore the member states cannot act independently in such important matter like business and trade negotiation and contracts. Also determination of customs duties amount and of prohibition of certain goods import belongs to this matter; the federation will also naturally be able to determine rules for export.

The matter that also ought to be transferred in the power of the federation is the guard of the outside border of the federation. This matter needs a federal regulation because the uniform territory of the federation (with free movement of persons (about it in another post)) cannot be guarded by different states (passing by that not all member stats will be border states) - federal rangers can on the other hand operate in whatever sector of outside border in the case of need. In addition, guarding common borders is a normal federal competence.

What belongs closely to the mentioned matter is a matter of "visitors" of the federation. That is to say only the federation can determine who can enter the federation territory, the member states cannot do it. One of fundamental features of every federation is that there is free persons movement among the member states - in that case it would be at least peculiar if some border states should decide who alien can stay in other member states territory. Beside that this matter is related to the foreign policy and that is the exclusive matter of the federation. Another way is also possible: the federation will determine the rules of admission to the union territory and the member states will execute them. But it is untypical for federal arrangement; it corresponds rather to present intergovernmental way how the EU works now. But although the second way can be employed, the principle should be valid that if some power was put in the hands of the federation, the federal authorities should accomplish the power. The contrary way would mean that the federation would be dependent on its member states in its own policy. That I do not consider to be suitable for Europe (though this principle works in some federations like in Germany for example); nonetheless, I will discuss it more in another post dealing with federal bodies.

Now, I will stop and finish this post with the words that other federation competencies will be discussed by me another next time.

09 May 2009

Relations of the Union and the member states 1 - Foreign and military policy

In this chapter the constitution will determine the relations between the Union on the one hand and the member states, that is to say competencies of the federation. Whereas my previous posts were relatively indisputable (although it is possible to quarrel on everything) many (potential) readers of this chapter can easily dissent from many (or even all) of submitted suggestions because the European states independence is a very delicate matter, so I will explain them as well as can be (from my point of view) – however, if someone dissents from the European federation concept itself nothing can be explained to him at all.

I will discuss first more common matters about federation competencies. How large should be their extent? There are competencies which every federation must have to be a federation but before I will deal with them concretely I will refer first to the principles of their arrangement in the federal constitution of Europe. There are two types of federations, those that arose from below and those that arose from above. The first type represents such a federation that arose from the originally independent states which voluntarily have ceded part of their competencies to the federal state. The second type represents such a federation that arose from originally unitary state which has given some state rights to its parts. Examples for the first type are the United States of America or Switzerland, for the second type Belgium. The first type differs from the second one in the fact that the originally independent states joined in a common state but their independence was so dear to them that they ceded to the common state only the most necessary competencies so that the common state may work at all. In this type of federation the federal state is more weak initially (and its competencies acquires only gradually) than in the second type where the federal constitution is written for the sake of strong federal state and less competencies and less independence is left to the member states in this case than in the first type. The European states have very strong feeling for their independence, all of them have never been together in a common state except some states which were parts of greater states today non existing (like the Austrian empire). Hence it follows that the European federal constitution should be more like the USA constitution which came out of the states rights protection than the constitution of Germany where the competencies of the federal state are very extensive (assuming that the so called concurrent legislation (the states make laws till the federation do the same in certain areas) is in fact additional competencies for the federation); and I do not mention the constitution of Austria where the competence of the federation is even greater than in the German case.

Then: the competencies of the federation and the member states can be set in a different way in the federal constitution. First, only the competencies of the federation are enumerated and the other not enumerated remains in the competence of the member states. Second, only the competencies of the member states are enumerated and the not enumerated rest is in the federal competence. Third, both the competencies of the member states and of the federation are enumerated. The third way seems to be the most exact division of the competencies. However, it is not. All human activities and all possible state competencies cannot be listed in the constitution. Besides, nobody knows which activities will emerge in the future and will have to be regulated by the state (for example, before fifty years, nobody knew that something like a cloning will be possible some day). The best way is in fact the first one – the competencies of the federation are strictly done whereas the competencies of the member states are open. That means: if some new matter operated by the state occurs it goes automatically to the member states because it will not be listed among the federal competencies in the federal constitution. If it is proven that it is better to transfer this newly occurred competencies to the federation, the federal constitution will have to be changed, that is to say the member states will have to agree with the transfer of their competencies to the federation. That is fully in accord with the principle of federalism which says that the member states are independent if their independence is not restricted by the federation, in other words the member state have all competencies and all power that have not transferred to the federation.

So, now I will proceed to concrete provisions of the federal constitution of Europe. In first place the thing will stay that is the most important attribute of every federation – the federation is a single entity towards the outside. That means the one – the foreign policy has to pass over to the federation completely and the member states cannot act independently outside the federation. It is self-evident, there in no federation in the world where it is otherwise; all the same this is the greatest problem for Europe – the European states do not want to abandon their foreign policy; though it is a core matter for whichever form of a political union. I believe that the main fault falls at the European states politicians because they want not to give up their power. We hear how the national interests must be protected all the time but let somebody say to me: what for any European nation needs its foreign policy? Will the Spaniards stop to be the Spaniards if they do not have their foreign policy? Will the Poles stop to be the Poles without their foreign policy? Cannot the Swedes remain the Swedes without their own foreign policy? (And so on, naturally.) As a matter of fact the national and cultural diversity of Europe has nothing to do with the foreign policy of individual European nations; no European nation needs in fact its own foreign policy for its preservation, if it wants to have it, that is an expression of its thirst of excessive might or glory. In any case the European federation cannot exist without its foreign policy and with the member states having their own foreign policy – it is one of the most important things in the construction of the federal state of Europe.

Another matter belongs closely to the foreign policy, it can be said it is its integral component – the military. It would be absurd if the European federation member states should preserve their forces – an armed confrontation among them comes not into consideration (they enter the federation among other thing to avoid mutual wars) and no reason to have the forces exists in that case. The only one who can dispose of the armed troops in the European federation is the federation itself of course, it will use them according to its foreign policy. Nevertheless the troops and the weapons have to be spaced out somewhere; and it is obvious that it cannot be nowhere but in the territories of the member states. This may be for some of the member states people difficult. First because “foreign” troops should be spaced out in (almost) every member state (it is impossible to separate the soldiers of one common army strictly according their home states so they stay not in other member states) – but thus cannot it be in a federation: how can the other member states and their inhabitants of the same federation taken for foreign? It is impossible to enter the European federation with this outlook. The other difficulty for someone: the federal army must have some areas where it preserves its weapons and other technology and where it exercises its soldiers, i. e. military areas. The European army can easily use such current areas of the member states armies but the federation is the only one who will decide about the army in the future and therefore also about the land use for military purposes. However, to use its land is a sensitive matter for every state, so the federal constitution should respect it (a principle that the federation will care about the opinion of the member states in selecting the land for military purposes).

In any case, there is one more problem in common army matter and it is much greater than the previous ones, however it concerns the federal constitution only marginally. It sounds simply: NATO. Some of the present EU members are members of NATO, some of the EU members are not. What to do with it? Should the current NATO member states give up their membership in the military alliance by joining to the federal EU or on the contrary the current NATO non-members should join also the NATO by joining the European federation? And (so called) neutral states? Now, when no European federation exists, it is a great problem for all European defence projects (how to create common EU forces if not all EU members are NATO members). But the answer is simple in the case of the European federation. If the present independent states join the federation and only the federation can dispose of the military, the member states of the European federation cannot have own foreign policy and their own forces and therefore no member state can be member of any military alliance including NATO.

The question arises now whether the federation itself should join NATO or not. In the beginning it will be not a member naturally, because the treaties were signed by the present European states, no by any European federation, the membership of the current states cannot be automatically transferred to the federation. So, should the European federation be member of NATO? I do not think so. I know that many people in Europe see NATO as in integral part of European existence. But they have forgotten why NATO arose and in what circumstances it was established – Europe was destroyed after the second stage of its civil war (traditionally called WW2) and occupied by the United States of America and the Soviet Union and the states being not under the Soviet influence were so weak that they could not defend themselves without a foreign help. For that reason NATO is a witness of weakness, division and unindependence of Europe. Today, there is absolutely different situation – the invasion of the USSR threatens today not, even USSR itself exists not and the main thing is that by creating the federation, the military power of all member states will join together and Europe will not be military unindependent more. Europe like a federation will make do without the USA troops well and the USA military protection of Europe will be needless. All the same I believe that already today NATO serves not for the benefit of Europe but of the USA, the European member states support the USA wars in the world – that is the main purpose of NATO today; the USA military presence in Europe makes more an impression of an occupation than a help. So the summary is evident: NATO arose like a USA military protection of weak and divided Europe against the military strong Soviet Union; after the rise of the European federation Europe will not be weak and divided more and the Soviet Union exists also already not, so the future existence of NATO will be superfluous. Because a membership of the federal European union in such military organization is a weighty thing, I believe that in the federal constitution a provision should be that the accession of the EU to some military alliance requires the consent of the federation citizens (something similar what is in the Swiss constitution (article 140)).

There are still many other issues having to be discussed on the European federation competencies but this article would be too long containing all of that so I have divided the topic in more articles and this is the first one of them. So, to be continued next time (my suggestion of the pertinent constitution text will be in the last part).

28 March 2009

General provisions

-->Section General provisions is a section that usually stands near the beginning of constitution texts and is different from a preamble. The section contains such general informations like a name of the state, its capital, its state symbols, statements about the state's territory, a general character of the state and similarly. These things I consider to be appropriate to mention in this section of the European constitution.

First thing will be a name of the European federal state. What do we want to be the name? There may probably be several possibilities, the most frequented suggestion - I suppose – is the name “The United States of Europe”. As I was able to find, the first one who used this name was French writer and politician Victor Hugo at the International Peace Congress in 1849, so the term has already its history. The present name (The European Union) can also be used and besides other names can be invented; The European Federal Union, The Federal Republic of Europe, The European Federation, The European Commonwealth or The Commonwealth of Europe come into consideration from a pattern of world's federations official names (Switzerland has an unusual name in German language – The “Oathfellowship” what is inapplicable for a European federation). Which of these names is mostly suited for a European federal state? The United States of Europe? The text For a federal pact among Europe's founder member states requires explicitly the newly founded federal state to be called so, also many other authors join this name with a European state. I will write it directly: I consider the present name “The European Union” as fully suitable for future federal state in Europe. Some objections can be raised the name is the name of the present union – but that is more an alliance than a union in fact and the word “union” not corresponds to the present condition, it is rather an optimistic belief in future unity. The main reason why I prefer present name before the United States of Europe is that Europe needs not to “ape” the United States of America. The American federation choose some name in its beginning but there is no reason the European federation must adopt the same name. Must every federation in the world be called “The United States of ...”? It suffices that Mexico has already imitated the USA (“Estados Unidos Mexicanos”, literally “The United Mexican States”), Europe let go along its own way. From the other potential names – The Commonwealth is unusual for Europe, one federation of the world (Australia) holds this name already; besides there is also a problem to translate accurately this term to other languages. Then, we can take into consideration other names, the federal republic and the federal union. I do not like the term “federal republic”, it sounds few as a name for a union, though there is the attribute federal near it. The last question is whether the attribute “federal” should be by the name “union”. If the present alliance should transform in real union, an addition of the word “federal” would seem appropriate. All the same I do not favour it; if some true union of the European states (not only international alliance like the present “union”) arises, its substance will be automatically federal and no extra accentutation will be necessary.

Besides the name of union's form itself, I deliberated how to cite the name in the constitution. It should be mentioned right in the first place of the General provisions. But I did not invent any suitable formulation (“The name of the union is The European Union” sounds not comfortable for me). At last, I found most proper to state the union name already in the Preamble. So I adjusted the text of the previous article about the Preamble and its end reads now:
adopt this Constitution of the European Union.

If the name of the union is not the first statement of the section General provisions then a statement about democratic substance of the European Union should stand in first place. Also a statement that the European Union is a federation can be placed here. The first article should thus run:
The European Union is a federal democratic state based on the will of the people. The people is the only source of state power.

Next issue that is suitable to be included in the General provisions is the territory of the union. In the Swiss constitution which is one of patterns for the European constitution, the member states of the federation are enumerated. Our second pattern, the USA constitution, contain nothing similar, it is however contained in a constitution of other European federations, first of all in the German and Austrian constitution. I consider it suitable also for the European constitution and I will explain why. I will deal with it only in other place but I write now that the constitution will be able to be changed only by the people's consent, that is by a people vote (a referendum). If member states are enumerated in the constitution it means it is impossible to admit any new state to the union without consent of the people of the union. It will result in two consequences: on one hand, it will not be possible to admit to the union a state what would the people believe about that it would be heterogeneous in the union and would damage the union. The second consequence will be that every enumerated member state will have its existence guaranteed by the constitution of the union. Any attempt to divide any member state or to join it to another would be anti-constitutional if not approved by the people of the union and the federal bodies would be able to intervene. The enumeration of the member states means not that new member states cannot be established by secession of the current ones but it must however occur in democratic way so that people of other member states may be able to agree to it. This is the way that in 1979, the state Jura came away from the state Bern and was admitted to the Swiss federation as a new member state with approval of all Swiss citizens.

The member states should be enumerated in alphabetical order and not by their official names because it would prevent the states from changing it independently. But another problem arises here, that is to say that it can be not known in the process of constitution adoption what states will join to the federation in its beginning and accordingly what of them should be enumerated in the section General provisions. Here, it is difficult to follow any example because the states that have such provision in their constitutions knew in the moment of the constitution's ratification which states they consisted of. How to solve this problem cannot be easily said. Generally, I believe the best way is to draw up the constitution of the European federal state in that way as if the European federation would involve entire Europe just from the beginning, so that the constitution may not to have to be continually changed in accession of new states. The general principle should be that provisions of the constitution will be such ones, so that they may be satisfactory for great all-European federation; necessary amendments for initial smaller federation will be placed in Final and transitional provisions. I consider such method suitable in other cases (such as of the parliament's size) but not in this case. In my opinion, the best solution is that all current member states of the European union will be enumerated in the opening part of the constitution before the ratification and a provision will be added in Final and transitional provisions that after ratification, the legislative body of the union will be authorized to amend the provision on the member states in that way so that it may correspond to reality. Other future changes of this article will be tied only with admission of new member states and they will demand approval by a referendum.

State constitution contain also a provision about a state capital. Such provision is appropriate also for the European constitution, so that it may not happen (as today) that principal state bodies (a parliament, a government, a supreme court) and even their parts are situated in various, from each other distant towns (present condition in the EU). The question what should be the capital of the European federal state can hardly be answered otherwise then Brussels. There is a building of the European parliament there already and looking for another capital would raise only quarrels.

Let us shift to state symbols now. The decision about the European flag is clear in advance – like in the case of the name also in the case of the flag, it is absolutely suitable what the EU has now; it is unnecessary to invent anything else. UPDATE NOTE: I invented a new flag later - see this.

The question about the coat of arms of the federation is more difficult. As far as I know, nobody dealt with this issue so far. Therefore the question is now what to adopt as a coat of arms of the European federation. It can be a new coat of arms, an old no more used today, it is also possible to transfer the motive from the flag in the coat of arms. If a wholy new coat of arms would be created I do not know what sign should be in it. But I believe the best thing is to adopt a coat of arms already used in the past. The coat of arms I have in mind is the one of extincted Holy Roman Empire – the empire itself ceased to exist and nobody took over its coat of arms, it is therefore free to use. In following picture, there is its shape (small coat of arms, that is to say a mere shield):

European Union - coat of arms
Why just this coat of arms? The Holy Roman Empire was an indirect ideological heir of ancient Roman Empire and its effort was to unite whole (western) Christian Europe under its name. It succeeded not but theoretically the supreme rule of Roman kings and emperors over the whole (catholic) Europe was been acknowledged by other European monarchs. The Holy Roman Empire can therefore be seen as an attempt of its kind to unite Europe in the middle and early new ages and the objection is not sufficient that it was an imperial project whereas the European federation project is base on voluntary cooperation.

A question on a third usual state symbol, an anthem, is not too difficult. Here, it is the best to take over the present musical symbol of the EU, part of Beethoven's Ode to Joy, but with a modification. The modification consist in adding a text and in labeling the anthemn by a name, following examples of present states anthems. In the federal constitution would be only the name of the anthemn (probably "Joy of brothers") and its exact reading (melody, text) would by determined by a separate constitutional law. My opinion is the text should come out of the original Schiller's poem (Ode to Joy, Ode an die Freude), should not depart of it too much and should be written in a neutral language which is probably only Latin in Europe now. My provisional, temporaly idea (to be adapted) is as follows:

1. Laetitia, tu scintilla,
unitatis filia,
a te gaudemus accensi,
caelestia gaudia.
|: Tua venustas jungit nos
qui fuimus divisi,
Europaei fiunt fratres,
laetitia affecti. :|
2. Cui contigit facere
amico se amicum,
desine solus restare,
delecteris nobiscum!
|: Nunc una anima sumus,
communis Europae grex,
et qui non vult congaudere,
flens maneat devius. :|

Also the “Day of Europe”, May 9th, in memory to Robert Schuman's speech in Paris in 1951, is considered to be a symbol of Europe. There are not many memorable days in constitutions, maybe it is very exceptional because I found only one example (in Swiss constitution in article 110, there is a provision about August, the 1st as a federal national holiday). Despite of it the Europe Day can be in the European constitution, no problem with it can raise. The best reading of this will be “The national holiday is the Day of Europe, May 9th, and other days determined by the law.”

Because there are also other state symbols except the mentioned (for example state colours, state seal, presidential flag and so on), it is appropriate to leave their enumeration and form to the legislators.

There is another thing mentioned in some constitutions in their opening parts – a state or official language. But there are many different national languages in Europe and none of them is common for all Europeans and intelligible for all of them; maybe except of English but it is not a neutral language – today, English is a working language, but it is something different. Too many fights would be over this issue, so it is better to omit it in the constitution; moreover, such by a language homogeneous federation like the USA has no provision about the state/official language, Europe also needs not any – it excludes not a chance Europe will agree on a suitable language someday.

In the end, how the section General provisions in my opinion should run (apology for the imperfect heraldic and vexillological terminology in English which I do not know):

1. The European Union is a democratic federal state based on the will of the people. The people is the only source of state power.
2. The European Union is composed of states Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Nederlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom.
3. The capital of the European Union is the Federal Region of Brussels.
4. (a) The state symbols of the European Union are state coat of arms, state flag, state anthem and other state symbols determined by a law;
(b) the state coat of arms of the European Union is the shield or, on it double-headed eagle displayed sable with nimbuses or over its heads;
(c) the state flag of the European Union is a yellow banner with a red cross in it and a circle of twelve yellow five-pointed stars round the cross' center on a blue circle put under the cross' limbs;
(d) the state anthem of the European Union is the Joy of brothers;
(e) the national holiday of the European Union is the Day of Europe, May 9th, and other days determined by a law;
(f) the law will provide details of the form and use of the symbols of the Union.