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.