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It seems to us that one of the difficulties attaching to the current debate is the confusion between a legal notion, that of sovereignty, and a historical, political or even philosophical notion, that of the nation-state.
As we cannot go into the complex discussions about the notion of sovereignty here, we shall content ourselves with a few remarks. Among the various ideas that this notion can cover, we shall take two. Regarding a state, in the sphere of public international law, we call sovereign a state that is not legally dependent upon another state, or as Kelsen says, a state that has its foundation directly in the international legal order and not in the constitution of another state.8 This is why the Member States of a federation are not sovereign within the meaning of international law, while those that are part of a confederation are.
In the domestic legal system, we call sovereign the real or fictitious entity that possesses the summa potestas on which the whole legality/legitimacy of the order depends. Thus, we say that, in such a state, it is the people or the nation that are sovereign.
Coming back to international law, the problem raised by groupings of states is that of either `limitations' or `transfers' of `sovereignty' or `powers' that most constitutions authorise in favour of what may generally be termed as international organisations. Thus, in France, the Constitutional Council, after distinguishing `limitations' of sovereignty (permitted) from `transfers' of sovereignty (unconstitutional, and possibly requiring amendment of the constitution), currently uses the notion of treaties (or treaty provisions) on the basis of whether they infringe `the essential conditions for the exercise of national sovereignty,' or not.9
It will, however, be noted that, to date, whenever the Council has encountered such provisions, in the Maastricht and Amsterdam treaties for instance, what has followed is not a refusal by France to ratify the treaties, but a revision of the French constitution. The conclusion must be drawn that these provisions, while infringing `the essential conditions for exercising national sovereignty,' did not do so to such a degree that the French authorities genuinely feared for France's sovereignty.
On can, however, well imagine a state which transfers all its powers to an international organisation (a grouping of states) losing its sovereignty in the eyes of international law. Where, then, is the breaking point? The reply of classical international theory is that the transfer of the powers to conduct external relations and national defence by a state bring a disappearance of sovereignty within the meaning of international law.10 To this, some would add, though in our view wrongly, the transfer of monetary powers.11
It will be noted that in order to highlight the `truly historic turnaround' made by the European Union, Joschka Fischer notes in his speech that, `In Maastricht, one of the three essential sovereign rights of the modern nation-state-currency, internal security and external security-was, for the first time, transferred to the sole responsibility of a European institution' (p. 5). This does not entirely fit the criteria we have set forth, but comes close. Yet, as long as the Member States ultimately remain masters of their defence and foreign policies, which is still the case in the present Union, they retain their sovereignty. If the states were truly to transfer their powers in these areas, i.e., their right to decide their policy in the last instance by themselves, then, there would be loss of sovereignty.
Likewise, were the federation to endow itself with a parliament that possessed true legislative powers in major areas but without supervision of either the `government' of the federation or the national parliaments, this would undoubtedly mark the creation of a federal state. Let us note that it is on this point that Fischer's proposals appear not just weakest, but also least consistent. For all his desire to `sell' the idea of a federation which leaves the nation-states with their sovereignty, he proposes a most peculiar solution for the chamber representing the European Union's citizens. This chamber, he writes (p. 10) would be `for elected members who are also members of their national parliaments,' which would avoid any `clash between national parliaments and the European Parliament.'
But what does this mean? Would the European parliamentarians be the faithful image of the party divisions of national parliaments? Ought they to be elected by them on the representative system, so as to reconstitute a sort of French, German, British, etc., mini-parliament at the level of the European Parliament? Ought they to resign in the event of new national elections or changes in their national majority? Would they be prisoners of a binding mandate, and could they be recalled by the national parliaments were they perchance to express through their vote convictions that differed from those of their constituents? This is a strange way of advancing the cause of European integration.
One last word on the idea of a `European Constitution,' a recurrent idea taken up again by President Jacques Chirac in his speech to the Bundestag on 27 June 2000.12 We do not wish to discuss whether or not such a `constitution' is desirable in order to enable clearer and simpler distribution of powers, better participation by citizens and an enhancement of democracy within the Union here. We should merely like to recall that the word `constitution' does not in itself refer to any institutional structure. Thus, the treaties setting up certain international organisations are called `constitutions'. This is, for instance, the case for the treaty setting up the International Labour Organisation (`the Constitution of the ILO').
It is, nonetheless, true that the normative pyramid of a state is crowned by what is ordinarily called a constitution. In the case of a federal state, this constitution may find its origin in one or more treaties. In this case, the constitution of the federation is the object of the treaty whereby the hitherto independent states combine to create a new federal state. The treaty of political union concluded by the two German States on 31 August 1990 for their reunification is a recent example of such a case.13 In what circumstances does the transition from an international act to one of domestic law come about?
Charles Eisenmann has explained this clearly. The transformation happens `because the treaty provides that its clauses on the organisation of the collectivity that it sets up can be amended by a procedure of domestic legislation, of constitutional revision, i.e., by a majority, no longer unanimity, rule.' For, in this case, the clauses on the organisation of the group collectivity, `though originally rules of international law' become transformed into rules of state law because of the way that they may be amended. The way they were historically established no longer counts: the treaty [becomes] a constitution.14
If we now come to look at the concept of the nation-state, which nobody wants to `abolish,' there is, we feel, ambiguity that confuses the discussion. It should be noted that the term nation-state hardly appears, if we are not wrong, in works and treatises of theory of the state or of constitutional law, at least those we have been able to consult. It can be sought in vain, for instance, in Kelsen's Pure Theory of the State or General Theory of Law and State. These works contain long studies on federal states, unitary states, decentralised or centralised states, but nothing about nation-states. In his Contribution to the General Theory of the State, Carré de Malberg devotes his consideration to the idea of the union of state and nation. He wishes, thereby, to reject the positions that the nation is the original subject of sovereignty, and that it gave rise to the state, to which it is prior. For this eminent constitutionalist, instead: `The state is not a legal subject that arises in the face of the nation and opposes it: as long as it is accepted that the powers of a state nature belong to the nation, it must also be admitted that there is an identity between the nation and the state, in the sense that the latter can be only the personification of the former.'15
But we do not believe that it is this debate, which turns around a very specific conception of national sovereignty among French constitutionalists, that the defenders of the idea of the nation-state are thinking of. They are seeking more to defend the durability of a collectivity founded in, and by, history that expresses a cultural cum religious, linguistic and political heritage, and, ultimately, a `will to live together' (Renan) of a very special quality.
Need this will to live together necessarily imply that the collectivity through which the nation is expressed be a sovereign state within the meaning of international law?16 This is undoubtedly what the `sovereignists' think, to the point that, during the debates on the ratification of the Maastricht Treaty, one could hear politicians declare that even a large majority in a referendum could not make sovereign France disappear, since it does not belong to a single generation. Each has received it from its forebears and has the duty to pass it on, still just as sovereign, to its children.
This is an entirely respectable political opinion which does not, in our view, imply that the cultural, religious, linguistic, and political heritage, coupled with the very special quality of the `will to live together,' necessarily have to be expressed through a sovereign state rather than through a federated state within a larger federal state. Is it conceivable that the French, Italian, British, German, Irish, etc., `genius' would be unable to express itself in a federated state? Are our nations not sufficiently ancient to justify this hypothesis? Thus, when Joschka Fischer stresses that, in the final (European) federation, `the nation-state, with its cultural and democratic traditions, will be irreplaceable in ensuring the legitimation of a union of citizens and states that is wholly accepted by the people' (p. 11), this does not, to our mind, mean that all this is possible only if the nation-states retain their sovereignty within the meaning of international law, as, in that case, we do not see how the European federation and the nation-states (still meaning sovereign states) can be reconciled.
8 See, Kelsen, Théorie générale du droit et de l'Etat, (Kelsen 1997:365-372).
9 Beaud (1993:1052 et seq).
10 The point was quite well seen by President Jacques Chirac in his speech to the Bundestag on 27 June 2000: `Neither you nor we are envisaging the creation of a European super-state that would replace our nation-states and mark the end of their existence as actors in international life' (Le Monde, 28 June 2000, p. 16).
11 Leben (1991:69-72). For a long time, there has been economic and monetary union between Belgium and Luxembourg without the consequence of ending the sovereignty of either state.
12 Printed in Le Monde of 28 June, p. 16-17. See also the joint proposal by Daniel Cohn-Bendit and François Bayrou presented on 13 June in Strasbourg, Le Monde of 14 June 2000.
13 See, Fromont (1991), and the other articles in this issue of the Review Français de droit Constitutionel on the theme of `Germany's reunification and constitution'.
14 See, Eisenmann (1982:429) and Le Fur (2000:540-589), for the debates on this question in French and German legal theory at the end of the nineteenth century.
15 See, Carré de Malberg. Contribution à la théorie de l'Etat, Paris, Sirey, 1920, reprinted in 1969 (de Malberg 1969:12-13).
16 This is the idea defended by President Jacques Chirac in his speech to the Bundestag: `Our nations are the source of our identities and our roots. The diversity of their political, cultural and linguistic traditions is one of the strengths of the Union. For times to come, the nations will remain the foremost reference for our peoples. Contemplating their extinction would be ... absurd ... (Le Monde of 21 June 2000). But who says the creation of a federal state entails the extinction of national identities? What we see in federal states (US, Germany, Switzerland), whose federated states have less ancient and less rich personalities than the Union's nations, does not necessarily lead to this conclusion.'