I was going to start writing about the executive power of the federation but writing previous two posts about representation of individual parts of the European federation in the federal parliament I realized that I have not satisfactorily solved a question of territories that are dependent on some European states but are not a direct part of them. Those are mostly territories which are situated outside of Europe and mostly they are not supposed to be a part of future united Europe in contrast to their metropolises. Their inhabitants themselves want not in many cases to be a part of united Europe although they want not to break links to their European metropolitan states. In the present international organization of the European Union, the thing is solved the way that the metropolis is a part of the EU but its dependent territory is not. However such solution would be impossible in the case of creation of the European federation. I have written in the post Associated states that administration of territories not being a part of the federation would have to be considered as independent foreign policy from the part of the respective member state, and it is naturally inaccessible. Inhabitants of the respective dependent territories would have to decide after creation of the European federation whether they want to be outside the federation or inside it. In the first case the territories could be associated states of the federation, but the respective territories would be independent states from the point of view of international law. But if the would not want to be independent states – and they probably would not want to, if they have not wanted it up to this day – they would have to be a part of the European federation. I suppose however that these territories would want to retain links to thier metropolitan states if they become member states of the European federation; therefore I added a category of federal territories in the proposal of the European federal constitution. Citizens of these territories would have to be citizens of the federation (and therefore to have their representatives in the federal parliament as I have written in previous two posts) but a status of a federal territory should make to have special relationship to the federation, distinct from relationship of the member states to the federation, possible for them.
However, before I get to details I return in the very beginning, to the article 2 where I enumerated the member states of the federation. So that the list is complete I have to add all dependent territories of already enumerated member states (namely of France, the United Kingdom, the Nederlands and Denmark), just in the form of federal territories. I added also the Federal Region of Brussels to the list as a separate unit, I will return to it later. I must make a remark in advance: when I started writing about a proposal of a European federal constitution I had the states associated now in the international organization called the European Union in mind but in the course of writing, to propose such constitution with that a union comprising whole Europe could work became my intention. I adjusted therefore reading of the article two to it and involved all European states (including the microstates) except of Russia, Turkey and Caucasian states in it. The people in all enumerated states and territories should get a possibility to make a decision whether it wants to participate in creation of the European federation or not. I do not believe in contrast to my aearlier idea that respective plebiscites should be held only in the states of the present EU. There may be an objection that the states of the present European community are more prepared to political unification than those which stay outside but it can be hardly believed because there is almost no popular and especially political discussion about its tending towards a federation inside the European “Union”, if national politicians governing it have still such goal at all. The modified articte two is presented lower. I point out that I am aware that the European federation may never exist in that form, however I suppose that the suggested article two will be revised after creation of the federation or admission of a new member in a form corresponding with reality.
As I have written, status of a federal territory should make possible that territories dependent on any European state now could retain their close relationship with the respective metropolitan states but not at the same time to have to participate in the European federation in equal extent as the metropolitan states themselves. Therefore I drew up the first paragraph of the article about federal territories this way: the European federal constitution (I have primarily its third chapter dealing with competencies of the federation in mind) should be valid also for relations between the federation and the federal territories unless the respective law about status of the federal territory determines otherwise. That is to say, every federal territory should have the right to determine by a special law what parts of the third chapter of the federal constitution should be valid for it. The right of a federal territory to such law is guaranteed by the suggested article two.
The right to special status inside the European federation can however not give a right to arbitrarily reject obligation of whatever provision of the constitution to the territory. Some competencies of the federation must be retained in relation to the federal territories if the federation should work as a whole and if malfunctions should not occur in its operation. Therefore I enumerate the articles of the chapter three or parts of them in a suggested text bellow which cannot be a subject of special regulation of relations between the federation and the respective federal territory. Overview of them with commentary follows. (Numbering of articles corresponds not with what I published earlier because I added two other articles concerning just the federal territories and the Federal Region of Brussels.)
- The entire article 18 (foreign relations): As the member states cannot have their own foreign policy, the federal territories cannot have it too; it is obvious.
- The entire article 20 (military affairs): The same is valid as in the case of the article 18.
- The entire article 21 (free movement, internal security): I do not see any argument why federal territories should restrict free movement of other citizens of the federation in their territory. And if movement of persons is free, also freedom of activities of federal investigative bodies in federal territories must be, otherwise they could become bases of organized crime which would be secure from institutions of the Union there.
- The entire article 22 (citizenship of the Union): No federal territory like the member states can be allowed to give its citizenship to somebody who did not became the one of the federation first.
- From the article 23 (economy, curency) the paragraphs (d) (business law is a matter of the federation), (f) (social conditions of labour), (g) (uniform currency in all federation), (h) (federal supervision over banks and other financial organizations): Objective of these restrictions for the federal territories is that these territories become not, in the framework of the European Union, areas where companies could misuse eventual milder local conditions. Federal territories cannot – in my proposal – permit for example lower protection of working people or less severe conditions for financial institutions because citizens in the rest of the Union would be threatened by that. (Who critically observes present capitalism sees what unfair advantages supranational firms utilize in states with low legal regulation and protection of working people understands what I have in mind.)
- From the article 24 paragraphs (e) (the Union levies import and export duties), (f) (the Union imposes capital gains taxes), (g) (size of taxes imposed by the Union has to be equal in all federation): The first condition is natural, because it is related to foreign policy, the other two ones then have the same justification as restrictive provisions of the article 23 – their purpose is to prevent that federal territories become not tax havens, offshore finacial centres or something similar inside the federation.
- The paragraph (e) (genetic engineering): Genetic manipulation of living creatures is so weighty matter that the federal territories cannot be allowed to permit less strict rules in this field than rules valid in the rest of the federation.
- From the article 30 (environment, agriculture) the paragraphs (e) (treating farm animals), (f) (treating free living animals), (g) (animal tests): All these provisions should prevent that the federal territories become not an asylum of supranational or other firms that would want to get around severe regulations of the federation about protection of animals against maltreatement.
The last paragraph of my proposal distinguishes the federal territories from the member states in one more thing. A reason of political unification of Europe and of creation of European federal state is to prevent damages which arose from division of Europe. The damages could be various and can vary or complement each other in the course of time. Unification of Europe therefore makes sense only when it will last forever. If the European federation was threatened by disintegration at any time, unification would lack purpose; unification “on trial” would be virtually no unification. Therefore unity of the European federation must be everlasting and the member states cannot have the right to secede from the federation (therefore a plebiscite has to confirm accession of any new state to the federation in both sides as well as creation of the federation itself in its beginning). It is actually common that federal constitutions do not regulate and not mention the right of the member states to secede from the federation (the only exceptions known to me are the constitution of the former Soviet Union (the article 72 of the constitution from 1977) and the present constitution of Ethiopia (the article 39)). Some federal constitution mention, on the other hand, impossibility of partition of the federation (the constitution of Brazil in its preamble), most of them however are silent about this matter, perhaps because they consider indissolubility of the (respective) federatin an obvious thing. I was aware the judgement of the Supreme Court of the United States of America in the case Texas versus Write (1869) in that the court rejected the right of a member state to secede from the United States although the constitution said nothing about it referring to the Articles of Confederation which repeatedly mention creation of perpetual union; therefore I inserted earlier the same words in preamble of my suggestion of the European federal constitution. But writing about it now I hold for appropriate to emphasize it more so that there is no misgiving in the matter – therefore I changed the earlier published article 1 in the General Provisions by adding a word “indivisible”. The amended article is below.
But I return back to the federal territories. What I have writen above about the member states should not be valid for them. As the list of them obove shows they are predominantly territories distant frome Europe and so from its affairs. They are remnants of former colonial empires of some European states and their existing bond to their metropolitan states is not utterly a result of their free choice. There is an independence movement in some of them and if there is not now, it can there be sometimes in the future. From the mentioned reasons I believe that the federal territories – unlike the member states – should have the right to decide to leave the European federation. Their right to etirely merge with their metropolitan state (as French overseas territory Mayotte did in the year 2011) is naturally not disputed.
To mention status of the Federal Region of Brussels is what remains to be discussed. The matter of fact is that this territory should serve as a federal district in the European federation similar to federal districts in other federations, for example in the United States of America, Australia, Brazil or Mexico. The main reason of creating such federal districts is to ensure that main constitutional bodies of the federation are not located in the territory of any mameber state and cannot thus be influenced by the respective state in which territory the bodies are located. Another assumption arises then from this main assumption, namely that administration over the federal district is exercised by federal institutions. I hardly can make another remark that the one that James Madison wrote in 1788 (the Federalist No. 42) about the future federal district of the USA: “The indispensable necessity of complete authority at the seat of Government, carries its own evidence with it.” (And: “It is a power exercised by every Legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the General Government on the State comprehending the seat of the Government, for protection in the exercise of their duty, might bring on the National Councils animputation of awe or influence...”)
But it would not be just if the Federal Region of Brusells had no autonomy and the entire state power was exercised by federal authorities. Federal districts in various federations have (or acquired in evolution) their own administration similar to a state one and federal authorities serve only as a supervisor who confirms or can change decisions of autonomous bodies of the federal district in the case of necessity. I chose the same for the Federal Region of Brussels and following two paragraphs describe this solution: the state power exercise local autonomous authorities in the Federal Region of Brussels, their decisions can be changed or revoked by the federal authorities. It is actually a manifestation of something like concurrent legislation (and concurrent administration too) known for example from Germany.
Reading of the respective suggested articles of the constitution including the amended article 1 and the amended article 2 follows (changes in these two are underlined in comparison with the previously published text):
Article 1
The European Union is an indivisible democratic federal state based on the will of the people. The people is the only source of the state power.
Article 2
The European Union is composed of the states Albania, Austria, Belarus, Belgium, Bosnia and Hercegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Montenegro, the Nederlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, the United Kingdom, of the Federal Region of Brussels and of the federal territories Andorra, Anguilla, Aruba, Bermuda, Bonaire, the British Virgin Islands, the Cayman Islands, Curaçao, the Falkland Islands, the Faroe Islands, French Polynesia, Gibraltar, Greenland, Guernsey, the Isle of Man, Jersey, Liechtenstein, qqMonaco, Montserrat, New Caledonia, the Pitcairn Islands, Saba, Saint Barthélemy, Saint Helena, Ascension and Tristan da Cunha, Saint Martin, Saint Pierre and Miquelon, San Marino, Sint Eustatius, Sint Maarten, the Turks and Caicos Islands, Wallis and Futuna as well as all territories belonging to them.
Article 16 - Federal Region of Brussels
(a) The Federal Region of Brussels is endowed with all competencies that belong to the member states.
(b) The state power in the Federal Region of Brussels is exercised by the people of the Federal Region of Brussels and by authorities elected by it.
(c) The Assembly of the Union and the Council of Chancellors can revoke or change whatever legislative or executive decision of the authorities of the state power of the Federal Region of Brussels if protection of federal authorities located in the Federal Region of Brussels requires it.
Article 17 – Federal territories
(a) All provisions of the chapter three of the constitution apply to the relations between the Union and the federal territories unless the respective law of status of the federal territory stipulates otherwise.
(b) Each federal territory may regulate its relation to the Union by the law about status of the federal territory.
(c) The law about status of the federal territory may not change the provisions of the articles 18, 20, 21, 22, of the paragraphs (d), (f), (g), (h) of the article 23, of the paragraphs (e), (f), (g) of the article 24, of the paragraph (e) of the article 27 and of the paragraphs (e), (f), (g), (l) of the article 30 of this constitution.
(d) The federal territories have the right to leave the community of the European Union.
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