‘I look forward to the day when the Westminster Parliament is just a council chamber in Europe.’ Kenneth Clarke, Conservative Politician
One could be forgiven for wondering periodically why Europe’s’ elite are so desperate to get the Constitution through without anyone having a Referendum which might again derail the whole process.
Is it perhaps because the Federalists realize that they might have the prize of Statehood within their grasp and believe they may be on the cusp of being able to claim victory?
The Montevideo Convention on the Rights and Duties of States was a treaty signed at Montevideo, Uruguay on December 26, 1933, at the Seventh International Conference of American States. At this conference, United States President Franklin D. Roosevelt and Secretary of State Cordell Hull declared the so-called Good Neighbor Policy, which opposed U.S. armed intervention in inter-American affairs. This was a diplomatic attempt by Franklin D. Roosevelt to reverse the perception of “Yankee imperialism,” brought about by policies instituted (largely) by his predecessor, President Theodore Roosevelt. The convention was signed by 19 states, 3 with reservations (United States, Brazil and Peru).
The convention sets out the definition, rights and duties of statehood. Most well-known is article 1, which sets out the four criteria for statehood that have sometimes been recognized as an accurate statement of customary international law:
The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
Furthermore, the first sentence of article 3 explicitly states that “The political existence of the state is independent of recognition by the other states.” This is known as the declarative theory of statehood.
As a restatement of customary international law, the Montevideo Convention merely codified existing legal norms and its principles therefore do not apply merely to the signatories, but to all subjects of international law as a whole: that includes but may not be limited to all sovereign nation states.
I set out here, and make no apologies for so doing, the text of the first ten articles of the Convention (the remaining five are of a more technical nature and do not add or subtract from anything in the first ten).
The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.
The federal state shall constitute a sole person in the eyes of international law.
The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.
The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.
States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.
The fundamental rights of states are not susceptible of being affected in any manner whatsoever.
The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.
The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state.
No state has the right to intervene in the internal or external affairs of another.
The jurisdiction of states within the limits of national territory applies to all the inhabitants.
Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.
The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognized pacific methods.
Most importantly the European Union has itself adopted this definition of statehood. This is by virtue of the explicit or at least tacit approval it has given to the conclusions of the Badinter Arbitration Committee which in its Opinion No. 1 said this:
“Opinion No. 1
The President of the Arbitration Committee received the following letter from Lord Carrington, President of the Conference on Yugoslavia, on 20 November 1991:
We find ourselves with a major legal question.
Serbia considers that those Republics which have declared or would declare themselves independent or sovereign have seceded or would secede from the SFRY which would otherwise continue to exist.
Other Republics on the contrary consider that there is no question of secession, but the question is one of a disintegration or breaking-up of the SFRY as the result of the concurring will of a number of Republics. They consider that the six Republics are to be considered equal successors to the SFRY, without any of them or group of them being able to claim to be the continuation thereof.
I should like the Arbitration Committee to consider the matter in order to formulate any opinion or recommendation which it might deem useful.
The Arbitration Committee has been apprised of the memoranda and documents communicated respectively by the Republics of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia, and by the President of the collegiate Presidency of the SFRY.
1) The Committee considers:
a) that the answer to the question should be based on the principles of public international law which serve to define the conditions on which an entity constitutes a state; that in this respect, the existence or disappearance of the state is a question of fact; that the effects of recognition by other states are purely declaratory;
b) that the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty;
c) that, for the purpose of applying these criteria, the form of internal political organization and the constitutional provisions are mere facts, although it is necessary to take them into consideration in order to determine the Government’s way over the population and the territory;
d) that in the case of a federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the state implies that the federal organs represent the components of the Federation and wield effective power;….”
Its importance is that this opinion now represents the European Union’s view of the as to what, as a matter of customary international law, a sovereign independent state amounts. But in another sense entirely it represents for the federalists a blueprint for the European Federal Project. If they can create something which demonstrates all the requisite criteria, then honestly and legally they can say: “We are a State”.
Let us now seek to apply the principles of the Montevideo Convention to the actual position that will ensue upon the coming into force of the proposed Constitutional Treaty.
(a) a permanent population
It is not seriously in dispute that the EU has a permanent population which may readily be identified by reference to the various accession treaties by which various states have become members of the EU, by reference to the nature of international recognition given to those states, by reference to the assertions of the individual states as to what their permanent populations amount and by reference to the certainty which may be given to the defined territories of the individual members of the EU [see (b)] below.
(b) a defined territory
Again what amounts to the defined territory of the EU is not a matter for serious dispute. Reference to what are the internationally accepted borders of the EU’s individual members will reveal that the EU has a clearly identifiable defined territory.
If one looks at the various organs of the EU, it is not difficult to discern in the ensemble all of the institutions that we think conventionally as being the organs of government. So as not to be accused of misrepresenting what they do or twisting matters to suit the needs of this paper, these accounts of what each body does have been culled from the EU’s own website its own definitions:
- The Council of the European Union
The Council of the European Union: — formerly known as the Council of Ministers — shares with Parliament the responsibility for passing laws and taking policy decisions. It also bears the main responsibility for what the EU does in the field of the common foreign and security policy and for EU action on some justice and freedom issues. [In the UK we would call this ‘the government’, though in the present context it is but one arm of that which the Montevideo Convention contemplates].
- The European Commission
The European Commission: drafts proposals for new European laws, which it presents to the European Parliament and the Council. It manages the day-to-day business of implementing EU policies and spending EU funds. The Commission also keeps an eye out to see that everyone abides by the European treaties and laws. It can act against rule-breakers, taking them to the Court of Justice if necessary.
The Commission consists of 27 women and men — one from each EU country. They are assisted by about 24 000 civil servants, most of whom work in Brussels.
The President of the Commission is chosen by EU governments and endorsed by the European Parliament. The other commissioners are nominated by their national governments in consultation with the in-coming President, and must be approved by the Parliament. They do not represent the governments of their home countries. Instead, each of them has responsibility for a particular EU policy area. [In the UK this is akin to the Home Civil Service. The highlighted section emphasizes the independence of the commission and is one indicia of an independent home civil service].
- The Court of Justice
The European Court of Justice: makes sure that EU law is interpreted and applied in the same way in all EU countries, thereby ensuring that the law is equal for everyone. It ensures, for example, that national courts do not give different rulings on the same issue. The Court also makes sure that EU member states and institutions do what the law requires them to do. The Court is located in Luxembourg and has one judge from each member country. [This is quintessentially a Supreme Court such as exists in almost every nation state in the world].
- The Court of Auditors
The Court of Auditors: checks that the EU’s funds, which come from the taxpayers, are spent legally, economically and for the intended purpose. The Court is based in Luxembourg and has the right to audit any organisation, body or company which handles EU funds. [cf. The UK National Audit Office].
- The European Central Bank
The European Central Bank: is responsible for managing the Euro — for example, by setting interest rates. Its prime concern is ensuring price stability so that the European economy is not damaged by inflation. The Bank takes it decisions independently of governments and other bodies. Its president is Jean-Claude Trichet. [The Bank of England]
- The European Parliament
The European Parliament: elected every five years by the people of Europe to represent their interests, the present parliament, elected in June 2004, has 785 members from all 27 EU countries. Nearly one third of them are women.
The main job of Parliament is to pass European laws. It shares this responsibility with the Council of the European Union, and the proposals for new laws come from the European Commission. Parliament and Council also share joint responsibility for approving the EU’s €100 billion annual budget. Parliament has amongst other things, the power to dismiss the European Commission.
Members of the European Parliament (MEPs) do not sit in national blocks, but in seven Europe-wide political groups. The largest of these are the centre-right European People’s Party (Christian Democrats), followed by the Socialists, the Liberals and the Greens. Between them, MEPs represent all views on European integration, from the strongly pro-federalist to the openly Eurosceptic.
(d) capacity to enter into relations with the other states
The fact of the assumption of Legal Personality on the part of the EU and its creation of a ‘High Representative’ for foreign affairs demonstrates clearly that the EU is arrogating to itself the right to enter into foreign relations as an entity in itself. No one should minimise the importance of this power, it being the last piece of the jigsaw of Statehood. Already there are fears that the EU will seek to take up the UK’s permanent Seat at the UN Security Council
If one adds into this heady mix the fact that there is to be a new role for The European Council as it is formally integrated into the EU structure, the restatement of the primacy of EU law, that some 80% of our laws already come from Brussels and are nodded through by a compliant and subservient UK Parliament, that huge further tranches of power are to be explicitly transferred to Brussels, it is impossible, I submit, to gainsay the fact that, as a matter of customary international law, EU Statehood is just upon us.
The final little pieces, but not vital to the legal integrity of the above, will be the acquisition of power over our justice system, so that the people cannot legally resist the Euro Behemoth, and power over our defence forces: these will complete the transition from international organization to Federal State.
For the above reasons I believe the call for a referendum is absolutely vital and that it is the duty of us all to awaken our people to the very imminent danger to our existence as a free people, whatever the consequences may be in the short terms to the political fortunes of this or that political party for this is a matter which transcends party.
What does all this amount to? Why all the hurry? Perhaps it is in preparation for a day in 2009 when, all the paperwork being done and dusted, the EU will choose to announce “L’Etat: c’est moi!”.