A MULTINATIONAL FEDERATION WITHOUT A DEMOCRATIC BASIS

Advocates of the Treaty Establishing a Constitution for Europe contend that in the new Union it would establish, the Member States would still have primacy of authority because it is they that would have conferred powers on the Union, under the so-called "principle of conferral"(Art.I-11). They forget that this is how classical-type Federal States have historically developed: by smaller political units coming together and transferring powers to a superior, e.g. 19th century Germany, the USA, Canada, Australia. This contrasts with Federations that have been formed by originally unitary States adopting federal form and devolving power to provinces or regions, e.g. post-War Germany, Russia, Austria, India, Nigeria. Where else after all could Brussels get its powers if not from its Member States, just as the Federal States whose capitals were 19th century Berlin, Washington, Ottawa and Canberra did before it? In the latter cases however the political units that came together to form a Federal State belonged wholly or mainly to one nation, with a common culture, language and history. This gave these Federations a popular democratic basis, and with it a natural legitimacy and authority, in total contrast to the EU Federation-in-the-making, with its many nations, peoples and languages. Therefore the provision of Article I-11 of the EU Constitution: "The limits of Union competences are governed by the principle of conferral", does no more than state the obvious.

Once power is conferred on the Federal level under the EU Constitution, however, there is no provision for a Member State to get it back short of withdrawing from the Union. The EU Constitution would indeed allow for this(Art.I-60), as the Constitutions of other Federations have done before it. Joseph Stalin's 1936 Constitution for the USSR contained a provision permitting states to leave it. The southern Confederate states of the USA thought they possessed a right of withdrawal until their attempt to exercise it in practice precipitated the 1860s American civil war. It is hard to find historical examples of individual provincial states exercising a constitutional right of withdrawal from a Federal State. Much more common is for the multinational Federations themselves to break up, so that everyone leaves, as it were, e.g. the USSR, Czechslovakia, Yugoslavia, the West Indies Federation. The historical tendency seems to be for multinational, multilinguistic Federal States to break up, as the international community of States continues to increase. The number of States in the world has gone from some 60 when the United Nations was established in 1945, to nearly 200 today, and the 21st century will certainly see many more new States formed out of existing multinational ones as the process of Nation State formation gets under way in Africa, South Asia and the Middle East.

Those seeking to play down the fact that the proposed EU Constitution is envisaged by its drafters as the fundamental law of another multinational Federation point to the provision of Article I-11 that "Under the principle of conferral, the Union shall act within the limits of the competences conferred upon it by the Member States in the Constitution to attain the objectives set out in the Constitution." They claim that this puts real restraint on Union power. But again this provision does no more than state the obvious: that the Constitution lays down that the Union and its Member States should respect their mutual powers and functions, as should the authorities of all States governed by law. The real political issue is who would interpret what the EU and Member State powers are? Who would decide in the event of disputes between the Federal and provincial state levels as to their respective fields of competence? The answer is the European Court of Justice, that supranational body that would be the new Union's Supreme Court. A Constitution means what the Supreme Court established to interpret it says it means. The European Court of Justice has been notorious for decades for seeking to expand European supranational power to the utmost through its case-law. The experience of the USA and other Federations has shown that historically their Supreme Courts have exercised an enormous federalizing influence by imposing common legal standards on their different political sub-units. There is no comfort for concerned democrats or "sovereignists" in Article I-11.

Nor is there in the further provision of the same Article: "Competences not conferred upon the Union in the Constitution remain with the Member States". Again this states the obvious. It is very similar to the 10th amendment to the American Constitution, adopted in 1791, which provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This 10th Amendment has not prevented the USA from becoming a fully-fledged Federal State, although in several respects it is less centralised than the present EC/EU. Article I-11 offers no reassurance against similar further centralisation in the new European Union. The defining characteristic of Federations as compared with Unitary States is precisely the division of law-making, executive and judicial powers between Federal and provincial state levels, with the former being constitutionally primary or superior, but with each level supposed to respect the competences of the other - as the Constitution lays down for the proposed new European Union.

There is no reassurance for concerned democrats either in Article I-5.1, which requires the Union to respect the "national identities" of its Member States and "their essential State functions." "Identity" is not the same as independence and is not a justiciable category. A people keeps its identity in servitude as well as freedom - Kurds, Chechyns and Palestinians for example. As for "respect (for) essential state functions", again any law-governed Federation and its constituent states should naturally respect the governmental functions carried out at its different levels. So this provision is another tautology, without potential for practically affecting the actual distribution of powers between the Union and its Member States should the Constitution come into force.

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