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.

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