TO BE A TRUE POWER - THE EU NEEDS A CONSTITUTION | EU AND FOREIGN POLICY
Sean Ian Fischer, MA, EMBA
Leadership Consultant | International Relations and Crisis Analyst | Veterans Advocate | Personal Sovereignty Advocate | Investor at Mustang Leadership Solutions Group? LLC
? Sean Ian Fischer, 17 June 2024. All Rights Reserved. Contributor to Mustang Leadership Solutions Group?, LLC. First written 22 February 2022.
Introduction
This piece asks the question of whether the EU can conduct foreign policy on the world stage. The paper will look at the background and institutions of the European Union and how it has handled crises in its history up to and including the current crisis involving Russia’s second invasion of the Ukraine. It is the author’s hypothesis that the European Union (EU) does not have adequate supranational institutions and more importantly, a “law of the land” that guides and directs the Union’s foreign policy and its capabilities and capacities to handle crises.
As this piece was originally written in February 2022, military forces of the Russian Federation have violated (for a second time; the first being Crimea in 2014) the internationally recognized borders of Ukraine attacking Ukraine from three or more directions, from the Belarus/Russia border area, Eastern Ukraine and from Crimea in the south. A 21 February 2022 CNBC online article by Amanda Macias quoted the European Commission (EC) President Ursula von der Layen and European Council (Council of Europe) President Charles Michel in a joint statement saying “The European Union will react with sanctions against those involved in this illegal act. The Union reiterates its unwavering support to Ukraine’s independence, sovereignty and territorial integrity within its internationally recognized borders."[1] Russian Federation President Putin believes that Russian security has been threatened due to the hostile activities by NATO, U.S. and Western governments. President Putin appeared to be justifying his decision to sign security pacts with the newly created “Donetsk and Luhansk People’s Republics stating, “I deem it necessary to make a decision that should have been made a long time ago and to immediately recognize the independence and sovereignty of Donetsk People’s Republic and Luhansk People’s Republic.”
The Liberal International Order and its institutions (i.e., the United Nations (UN) the European Union, and others) and Public International Law (PIL) are supported by the signing of treaties between states. PIL is based on international customs, general principles of law, the decisions of national and lower courts, jurisprudence, declarations and scholarly writings. EU principles are rooted in Western notions of freedom, prosperity and democracy. Additionally, EU principles and values are captured in the concepts of Jus Cogens (Latin – compelling law) general norms such as abolition of slavery, individual dignity (of the body and soul), freedom of speech and that no one can harm the other. These are norms that are non-negotiable and are backed up by Erga Omnes (Latin – in relation to all) in that there is no time limit in the European Courts to hear cases that violate these norms. States comprise a territory, a population, instruments of power and are internationally recognized.
In a 25 February 2022 opinion piece in the Financial Times, the paper said “Naked and unprovoked aggression against its neighbor by a country with one of the world’s largest armies recalls the bleakest moments of the 20th century. The overturning of attempts since 1945 to make respect for sovereignty and territorial integrity a founding principle of international relations will have a grave human cost, and repercussions far beyond Europe…A new, darker, chapter has begun.”[2]
On 21 February 2022 Mr. Balazs Jarabik, the Head of Political Analysis and Coordination Department and European Union Advisory Mission-Ukraine (EUAM) and former member of the Carnegie Endowment for International Peace gave a talk to St. Louis University Madrid students about the Ukraine Crisis, from the Ukraine (most likely as Russia was encroaching into Eastern Ukraine as he was speaking) and just hours before the main Russian invasion of 24 February 2022. One of the questions posed by the author was that Russia violated the internationally accepted norm of the right to self-determination, respect for sovereign territory and internationally recognized borders by occupying Crimea and partially occupying the Donbas region of eastern Ukraine in 2014. These Russian actions were a result of Ukrainian protests over the Russian puppet leader Viktor Yanukovych and his being deposed by Ukrainians in an overwhelming democratic landslide victory for Petro Poroshenko. This meant that Russia could no longer control Ukraine. Curiously, Mr. Jarabik seemed to defend the Russians actions generalizing that Crimea, large swaths of eastern Ukraine and other areas of the country were mostly ethnically Russian so it made sense that these areas would, or should be, aligned with Russia. For the author, this was a curious thing for an EU Advisory Mission Ukraine member to say since the raison d’etre of the EU are respect for democratic principles, sovereignty, free markets and the rule of law. Maybe it was possible that Mr. Jarabik was aware of Russian monitoring of his online activities and so he was careful to measure his words and sentiments in favor of a pro-Russian position.[3]
The Russian Federation flouted international norms by invading Ukraine, conducting cyber-attacks on the Estonian banking system and government institutions in 2007, and the invasion and partial occupation of the Republic of Georgia in August 2008. ?Based on the norms of the international system and the preeminence of PIL Ms. Von der Leyen, then, seems to be on firm legal ground by pointing out the illegality of Russia’s most recent Ukraine incursion. However, missing in the debate seems to be what constitutes an invasion of a sovereign nation. When is a sovereign state invaded? Do cyber-attacks constitute an attack on state sovereignty? The United States’ electoral system, corporations and infrastructure were victims of Russian cyber-attacks. Russian cyber-attacks took down Ukrainian banks, the Foreign Ministry and the Defense Ministry systems. Any student of Russia will recognize these activities as “standard operating procedure.” Cyber-attacks are digital artillery and missile salvos before an aggressor physically and kinetically attacks. Cyber war is an internationally recognized form of warfare. Cyber-attacks cause real damage to a state and the lives of its citizens. Perhaps international law and rules of engagement have yet to catch up to this reality. For the time being, it appears the international community only acknowledges physical and kinetic warfare as legitimate warfare based on its actions and behaviors when cyber-attacks occur.?
The European Commission and European Council joint statement as outlined in the CNBC Macias article, is, on the face of it, an EU foreign policy action. But the EU has no “constitution” nor does it have a federal system of government. Real power is still held with the nation states of Europe, not by the EU. Because of this, and other EU institutional weaknesses, the United States is the de facto underwriter and guarantor of European security and prosperity. But before this is explored, it is important to understand the makeup of the European Union.
The European Union – Background
The current European Union comprises twenty-seven nations, having recently lost one member – the United Kingdom – as a result of a national referendum in 2016 (Brexit). The UK officially withdrew from the Union on 31 January 2020. The EU had its genesis in its desire to end war in Europe. After two devastating world wars, Europeans were looking for ways for a peaceful Europe. These ideas began long before the end of World War II. In the eighteenth century, ideas about uniting Europe were put forth by Abbe Saint-Pierre, Emmanuel Kant and Victor Hugo. Arguably, Europe already had a “European Union” when Charlemagne became the first emperor of Western Europe (see figure 1).
[1] 21 February 2022 CNBC online article by Amanda Macias
[2] “Putin’s war has opened a dark new chapter in Europe,” Financial Times 25 February 2022
[3] Balazs Jarabik talk to St. Louis University-Madrid International Relations & Public Policy Students and Faculty 21 February 2022
Charlemagne is considered the “father of Europe” having expanded the Frankish Empire west uniting most of Western Europe for the first time since the fall of the Roman Empire in the fifth century AD. Further forms of European unification followed Charlemagne under Charles I/IV during the sixteenth century, Napoleon in the nineteenth and Adolf Hitler in the twentieth. Speaking at the International Peace Congress in Paris in 1849, Victor Hugo said, “A day will come when all nations on our continent will form a European brotherhood…A day will come when we shall see…the United States of America and the United States of Europe face to face, reaching out for each other across the seas.” In 1920 the British economist John Maynard Keynes advocated for a European Economic Union. Winston Churchill in a radio broadcast in 1943 posited the idea of a “Council of Europe.”
Founding Fathers. There are eleven men that have been credited with being key actors and founders of the present-day EU. Konrad Adenauer was the first chancellor of West Germany bringing about the 1963 Elysée Treaty and signing a Treaty of Friendship with France. Joseph Bech was the prime minister of Luxembourg credited with helping to establish the Benelux Customs Union, the European Coal and Steel Community (ECSC), the Messina Conference leading to the establishment of the European Economic Community in 1958. Johan Beyer was a Dutch foreign minister and architect of the common market after 1955. Winston Churchill was the British Prime Minister during World War II and driving force behind the creation of the Council of Europe. Alcide De Gasperi, Italian prime minister credited with being instrumental in the creation of the Council of Europe. Walter Hallstein was a West German diplomat and first European Community president at the European Economic Community (EEC) and was instrumental in the creation of the common market. Sicco Mansholt was a member of the Dutch resistance during World War II and developed concepts of European self-sufficiency and food security forming the basis of a common agricultural policy for Europe. Jean Monnet was a French political and economic co-authoring the Schuman Declaration of 1950 and creation of the ECSC. Paul-Henri Spaak was a Belgian prime minister having negotiated the Benelux Customs Union of 1944. He held later roles and posts in the UN, the North Atlantic Treaty Organization (NATO), Council of Europe (COE) and ECSC and architect/designer of the Treaty of Rome leading to the foundation of the EEC. Altiero Spinelli was a member of the Italian resistance during World War II and author of the Spinelli Plan culminating in the Maastricht Treat and the creation of the EU.
Treaties. The United States surveyed the world scene after WWII and recognized that the major economies of the world were shattered. There were no comparable developed markets left for the United States to trade and conduct business with. Out of its own self-interest, the United States decided to “make investments in the future of their prospective trading partners’ success” by providing foreign direct investment (FDI) to them. Two major plans were set in motion to revive the European and Japanese markets. The European Recovery Program of 1947 (the “Marshall Plan”) and the Reconstruction of Japan 1945 – 1952. Both programs were wildly successful, restoring the former economic powerhouses back to the world stage in little more than a decade.
Eight treaties (see Table 1) have been agreed upon, signed and amended by EU members from 1951 to present. With the underwriting of security by the United States and later the North Atlantic Treaty Organization (NATO), Europe was allowed to concentrate on its prosperity. Never losing site of the experiences of two recent world wars, the EU founders looked for strategies to bind European states to trade agreements and others that became deterrents to making war on one another.
The first of these was the 1951 Treaty of Paris establishing the European Coal and Steel Community (ECSC). Germany’s Ruhr region was rich in coal and coke, key ingredients in making steel and war materials. By agreeing to “share” these resources Germany’s ability to wage war on the rest of Europe was weakened and therefore disincentivized it to make war. Further integration occurred in 1957 under the Treaty of Rome establishing the European Economic Community (EEC) reducing customs duties, establishing a customs union and allowing for a single market for goods, labor, services and capital across member states. Through the 1957 Treaty of Rome, the European Commission was established with the aim of realizing a “United States of Europe.” In 1965 the Brussels Treaty (or Merger Treaty) the executive institutions of the ECSC, the European Atomic Energy Commission (EURATOM) and the EEC were unified. In 1986, the Single European Act (SEA) sought to establish a single market by the end of 1992. The 1992 Maastricht Treaty called for the renaming of the block to “European Union”, the establishment of a single currency with introduction by 1 January 1999, the establishment of the European Central Bank (ECB) and a presage for a “federal Europe.” This treaty has been considered the foundational European Union treaty. In 1997 the Treaty of Amsterdam or the Treaty of European Union (TEU), member states agreed to transfer certain powers to the European Parliament such as legislating on immigration, adopting civil and criminal laws, enacting common foreign & security policy (CFSP), and institute changes for EU expansion. The Maastricht and Rome treaties were amended by the 2001 Treaty of Nice reforming the EU institutional structure to withstand eastward expansion and creating subsidiary specialty courts in areas such as patents. The Reform Treaty or 2007 Treaty of Lisbon further amended the Maastricht (Treaty of European Union – TEU) and Rome (Treaty on Functioning of the European Union) treaties, moving from unanimity voting to Qualified Majority Voting (QMV), establishment of an EU “Bill of Rights,” the Charter of Fundamental Rights making them legally binding for member states, and giving member states explicit rights to leave the Union and the procedures to do so.
Institutions and the Balance of Power. The European Union has seven institutions responsible for governing the block. They are based in four cities in the Union: Brussels, Belgium, Luxembourg City, Luxembourg, Strasbourg, France and Frankfurt, Germany. The Union maintains balances of power like other democracies in that it has legislative branches, an executive, high courts, a central bank and court of auditors.
In the legislative branch is the European Parliament comprised of over seven hundred members. It acts together with the Council of the European Union, shares budgetary power with the Council, exerts democratic control over institutions including the European Commission and approves Commission members. It cannot initiate legislation and has weaker powers than the Council of the European Union. This body is like the United States’ House of Representatives. It is based in Strasbourg, France and Brussels, Belgium and the Secretariat in Luxembourg City. The Council of the European Union, known as the “Council of Ministers” is the other legislative body and functions similarly to the United States Senate. It is composed of twenty-seven national members with one representative per state. It acts together with Parliament as a legislature. It shares budgetary power with Parliament, ensures coordination of broad economic and social policy and guidelines for common foreign and security policy (CFSP). It is based in Brussels, Belgium.
The European Commission acts in many ways like the “Office of the President” in other Western democracies. It is the executive branch of the EU. It submits proposals for new legislation to Parliament and the Council of the European Union, implements policies, administers the budget, is considered the “guardian of the treaties” by ensuring compliance with European law and negotiates international agreements. It is based in Brussels, Belgium.
The judicial branch consists of the Court of Justice of the European Union as acts like the EU’s Supreme Court. It has two courts, the Court of Justice and the General Court. It ensures uniform application and interpretation of European law. It has the power to decide legal disputes between member states, the institutions, businesses and individuals. It is based in Luxembourg City, Luxembourg.
The Union’s central bank is the European Central Bank (ECB) and is based in Frankfurt, Germany. It forms together with the national central banks of the European System of Central Banks and determines monetary policy for the eurozone. It ensures price stability in the eurozone by controlling the money supply and is also mandated to keep inflation low within the eurozone.
The European Court of Auditors checks for the proper implementation of the budget and is based in Luxembourg City, Luxembourg.
Lack of a Constitution and a Federal-like System. “The Treaty of Lisbon, unlike the Constitution, does not replace the current EU treaties; instead, it merely amends pre-existing legislation and, according to some politicians, adds to the complexity of EU policies and procedures by establishing even more protocols, opt-outs, and declarations.” This was the conclusion that Ms. Emily E. Toops of the University of Pennsylvania came to in her 2010 research paper titled “Why Is There No EU Constitution?”[1] Toops, in her view, believes that the EU has not been transparent in its constitutional processes by not holding public referendums demonstrating an unwillingness to engage in a very fundamental democratic decision-making process. Toops goes onto to say in her conclusion that “Constitutional symbols, such as an anthem, flag, and motto, were removed from the Treaty of Lisbon, and though content-wise the two documents are alike, such a symbolic failure could hinder further integration and does not bode well for future attempts to present a fully united Europe on the global stage.” Toops points out that the lack of a unified constitution complicates Europe’s standing on the international stage saying “Now that the Reform Treaty (Treaty of Lisbon - my emphasis) has entered into effect, there is currently no desire to revisit the task of creating a European Constitution, and the difficulties encountered during the constitutional drafting process indicate that the Constitution was written, debated and ratified using ill-suited procedures and that poor management of the constitutional project resulted in a missed opportunity to improve the institution, increase its interactions with European citizen[s] and command a great presence in the international community.”
Upon winning Independence in 1783, the United States operated under the Articles of Confederation. It was mostly an unenforceable document which intentionally kept the federal government weak. Vigorous debate ensued to increase the powers of the federal government so it could function at home and abroad in a unified manner. The American states were not enamored in losing their powers to a federal government. The Federalists argued for a strong central government while the Anti-Federalists supported strong state governments and individual rights. The result was the U.S. Constitution compromise with the first ten amendments making up the Bill of Rights securing personal rights, powers to the states and a strong federal government responsible for unifying interstate commerce, the common defense and foreign policy and affairs. The U.S. Constitution in Article VI says that laws made furthering the Constitution and all treaties made under authority of the U.S. are the “supreme law of the land.” Article I enumerates many of the U.S. Congresses’ foreign affairs powers such as to “regulate commerce with foreign nations, declare war, raise and support armies, provide and maintain a navy, make rules for the government and regulation of the land and naval forces. Two of the president’s foreign powers – making treaties and appointing diplomats (with Senate approval) implies authority to recognize foreign governments and conduct diplomacy. The commander-in-chief clause implies the president’s powers to use military force and collect foreign intelligence. Congress passed legislation giving the executive (president) additional authorities to act on specific foreign policy issues – the Emergency Economic Powers Act (1977) authorizes the president to impose economic sanctions on foreign entities. Undoubtedly it is this last power that President Biden is using to place sanctions on Russia for its invasion of the internationally recognized nation of Ukraine on 24 February 2022.
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The EU does not have a constitution that functions as the supreme law of Europe. It does not have a president who acts as commander-in-chief in times of crisis. It cannot raise and regulate armies and navies. The EU executive branch can negotiate treaties that are limited in scope, mostly regarding trade but not in the same manner as a democracy with a constitution that gives express powers to the executive to conduct foreign affairs. EU law does not trump nation state’s laws as supreme as it does in the U.S. federal system. This fact leaves the EU weak and without teeth on the international stage. The EU is fortunate in that the NATO alliance exists to backstop these major institutional weaknesses.
During the Bosnian War of 1992-1995, the Army of Republika Srpska (VRS) committed a genocide as defined by the United Nations known as the Srebenica Massacre. In 1995 more than 8,000 Bosniaks (Bosnian Muslims) men and boys were killed. Additionally, VRS expulsed 25,000-30,000 civilians from Serb controlled territory. The ethnic cleansing included extermination, unlawful confinement, mass rape, sexual assault, torture, plunder and destruction of property, inhumane treatment of civilians, targeting of political leaders, intellectuals and professionals and destruction of religious sites among others. In an April/May 1993 Washington Report on Middle East Affairs article by Ben Cohen, “Why Europe Failed to Halt the Genocide in Bosnia” he highlights that “The litany of European failures is astonishing—numerous cease-fire agreements have been broken and none of the main commitments undertaken by the Serb side have been respected. This should not have come as a surprise. The Serbs had no reason to curb their campaign so long as the EC (European Community predecessor to EU) refused to flex its muscles to punish previous infractions. Hence, Belgrade received the green light to organize…” Cohen further explains that “The EC's collapse in the face of genocide in the former Yugoslavia raises the question of whether the Community can ever operate a coherent foreign policy. This is the key challenge to those in Europe trying to devise a security architecture beyond the Atlantic alliance, framed during the Cold War…EC politicians have continued to insist that the conflict is a civil one, dragging out the principle of non-intervention in such wars as justification.” According to Cohen’s article it was the EC who was responsible for carving up Bosnia under the Vance-Owen plan along ethnic lines further dividing the country just as the Serbs may have wanted it to be but could not accomplish on their own. The EC may have unwittingly done it for them. ?Cohen summarized that what is ”…[A]t stake are wider principles of sovereignty, democracy and minority rights. The current approach of appeasement flies in the face of a range of such international conventions as the U.N. Charter, the 1948 Genocide Convention and the 1966 U.N. Covenant on Civil and Political Rights.” With the Dayton Peace Agreement for Bosnia-Herzegovina in 1995, NATO was responsible for implementing military security in the country, not the EC. The EC then as the EU now, did not have a constitution or a federal system in place to act more swiftly to the crisis that was taking place in Europe. The EC acted in a helpless manner while thousands were massacred, raped, tortured and displaced.
As of this writing, Bosnia-Herzegovina is again rupturing. Bosnia has communicated its ultimate desire to join the EU infuriating Moscow. The current Serb government is backed by Russia. NATO had its Implementation Force – IFOR - (of the accords) in Bosnia from 1995 through 2004. It was only 2004 when the EU committed its own troops for peacekeeping operations there deploying the EUFOR (European Force). Six hundred EU troops are currently deployed to Bosnia with an additional five hundred to be deployed within fourteen days to preclude the country from again fracturing. Since the Bosnian War, the EU has significantly improved its military capabilities as outlined in articles of the Treaty of Lisbon.
With the Russian invasion of Ukraine in progress as of this writing, the EU’s foreign policy will be challenged. In this crisis, the U.S./NATO and the European Union are constrained to act in a legal sense. The Ukraine is not a member of the European Union or NATO. To be sure, Russia has calculated all of this. For Russia, destabilizing the Ukraine to preclude it from its ability for entry in the EU and NATO in the future is a low-risk venture and they have seized upon these weaknesses. Russia has check-mated the West.
The EU’s lack of a constitution and lack of a federal system means it is in a similar position the EC was during the Bosnian War albeit the EU is more united this time. The EC stood by while the massacre unfolded, resorting to internal squabbles and looking for legal loophole definitions that would steer direct accountability to the EC in another direction, or hide behind the cloak of legality basically saying it could not act because it was not legal to do so. Russia’s actions in Ukraine are counter to the EU’s stated common values of human dignity, freedom, democracy, equality, rule of law, respect for human rights and minority rights.
Conclusion
The EU cannot act in a swift manner during crises in the absence of a constitution and a federal system that gives primacy of EU law to reign supreme over its member states’ national laws. Real power in the EU resides with the states. A constitution can clearly lay out the roles of the different balance of power institutions, a federal system, conduct of foreign policy and affairs and commanding militaries. The EU president cannot act as the U.S. president can for example, to use executive powers during crises. The Bosnian War was the biggest challenge to the EC to test its principles and values. It was in Europe that mass genocide occurred during WWII. It was happening again on the continent of Europe in Bosnia 1992-1995. Doubtless was the EC calculus of whether Russia would intervene someway on behalf of the Serbs. Maybe it is possible this was one of the sources of the EC’s lack of intervention to halt the massacres in Bosnia. Ultimately, the EC did not act when it needed to, and thousands senselessly died. Its failure was the lack of unified and supreme law and a federal system.
In the Ukraine crisis of today, the EU’s European Commission President Ursula von der Leyen has acted somewhat in a constitutionally recognized way as the executive by issuing condemnation statements of Russia’s actions and communicating that the EU will impose economic sanctions on Russia. EU actions are backstopped by the NATO alliance. Without the teeth of the alliance, a constitution and a federal system it is doubtful the EU would ever act unilaterally against a nuclear power such as Russia.
Europe and the EU have enjoyed unprecedented wealth and prosperity since the end of WWII. Europe under-invested in its defenses and its democracy in a regional and global way. Europe became comfortable with the United States and NATO underwriting its security becoming almost solely reliant on U.S. military capacity, capabilities, diplomacy and world leadership. In a phrase, Europe rode the wave of prosperity. Europe has always known that Russia, in any of its forms, has been an historical threat to European security for hundreds of years – in the form of Czars, the USSR or Putin’s Russian Federation. If ever there were a clarion call for Europeans to stand behind their stated values of peace, democracy, rule of law, free markets and human rights, now is that time. It is already being said that the Russian invasion of the Ukraine is a pivotal moment in human history like Kennedy’s assassination, the Fall of the Berlin Wall, 9/11, and 6 January 2021. President Kennedy said in his inaugural address on 20 January 1961 “Ask not what your country can do for you, but what you can do for your country.” If the EU aspires to greatness and wants to preserve its democracy, culture, values and principles, now is that time. Europe is under threat by tyrants and autocrats once again. Like Adolf Hitler, Benito Mussolini, and Francisco Franco, Vladimir Putin and Xi Xinping’s China are threats to Western values and way of life.
To be sure there will be sacrifice. However, the West is technologically advanced, highly educated and resourceful. The rest of the world depends on the EU, Europe and the West to succeed in this ideological struggle that is unfolding before us. Europe and the West will need to diversify itself away from regimes, commodities and resources that are counter to Western values and the stability of the liberal international order. The threat that peace, prosperity, security and democracy bring to its citizens is complacency and lack of preparedness for external threats and challenges. The West and the liberal international order must realize that events such as Putin’s invasion of the Ukraine will most likely be with us for many more hundreds of years. We must recognize these characteristics of humans, think deeply about our world and put in place the institutions that deliver to the people of the planet physical, food, health, and labor security, protection of human rights, dignity and the adherence to the rule of law. It is man’s best hope for peace.
References
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[1] Emily E. Toops, 2010 University of Pennsylvania Research Paper “Why Is There No EU Constitution?”