Edward Pountney 11060618 Is the EU the greatest threat to sovereignty for Britain in the modern world? Edward Pountney ABSTRACT The term sovereignty, like many concepts in international relations, politics and philosophy, is a highly debated issue due to “the bewildering ambiguity of sovereignty” (Hoffman, 1998, 12) its broadness, lack of one overriding definition and as a concept, its seemingly dynamic adaptability. This paper accepts that sovereignty is an adaptable and changing concept. However, there is a need to try and clarify what one understands about the term sovereignty and how one uses the term, which is why domestic popular democratic sovereignty is identified, as a way of expressing the relevant categorizations of the concept. To understand the contemporary relationship between the UK and the EU one must first look at how the European Union came about: what principles it is built upon and how it has changed through several decades, from a purely economic international organization to the quasi political body it is today. Major rulings and Treaties have changed the nature of the EU, which in turn are changing the nature of the relationship between the EU and the UK as well as becoming a threat to domestic, Westphalian, international
Transcript
Edward Pountney 11060618
Is the EU the greatest threat to sovereignty for Britain in the modern world? Edward Pountney
ABSTRACTThe term sovereignty, like many concepts in international relations, politics and philosophy, is a highly debated issue due to “the bewildering ambiguity of sovereignty” (Hoffman, 1998, 12) its broadness, lack of one overriding definition andas a concept, its seemingly dynamic adaptability. This paper accepts that sovereignty is an adaptable and changing concept.However, there is a need to try and clarify what one understands about the term sovereignty and how one uses the term, which is why domestic popular democratic sovereignty is identified, as a way of expressing the relevant categorizations of the concept. To understand the contemporaryrelationship between the UK and the EU one must first look at how the European Union came about: what principles it is builtupon and how it has changed through several decades, from a purely economic international organization to the quasi political body it is today. Major rulings and Treaties have changed the nature of the EU, which in turn are changing the nature of the relationship between the EU and the UK as well as becoming a threat to domestic, Westphalian, international
legal and interdependence sovereignty. The organisational structure of the EU also places a heavy bias upon the Union over and above its member states. Its member states’ ability to create independent legislation has been undermined throughout the evolution of the EU, which is leading to a further decrease in domestic sovereignty for those states. There is also an economic threat developing from the global market and the rise of MNCs. This poses a problem to domestic sovereignty, as it arises from the apparent difficulties for states to create comprehensive independent fiscal policies, that try to both benefit the national economy, and through which public policy can be efficiently operated. To identify which is the greatest threat to sovereignty in Britain we mustanalyze each case to arrive at a credible conclusion.
ContentsIntroduction
Page 3
Chapter 1 Sovereignty in theory and practice and the UK perspective Page 5
Westphalian or post-Westphalian sovereignty Page 6
Newman’s classifications of sovereignty Page 7
Krasner’s classifications of sovereigntyPage 9
Parliamentary sovereigntyPage 11
Is sovereignty that salient? Page 12
Chapter 2
Brief history of the European UnionPage 151950 – 1970
Page 15
2
1971 – 1992Page 18
Post Maastricht and the creation of the EU Page 20
Chapter 3
The EU, UK and sovereigntyPage 23ECJ rulings and their effects on sovereignty, and EClaw Page 24The organisational structure of the EU
Page28Retaining sovereignty?
Page 31
Chapter 4
Other threats to sovereigntyPage 33The global economy
Page 33The Internet
Page 37
ConclusionPage 39
Bibliography Page 44
Introduction
This paper will try to identify and analyse the
possible threats of sovereignty to the United Kingdom to
3
finally reach a conclusion as to what specifies the
greatest threat. To achieve this goal this paper will use
a qualitative methodology, based upon numerous academic
publications: books, journals and articles from a range
of authors with differing concepts and ideas on
sovereignty, the EU and politics. In this way the paper
will analyse differing interpretations on the sovereignty
debate and produce a conclusion based upon these
arguments. The inspiration for this paper was the on
going debate on what relationship the UK should have with
the EU, and if it should withdraw from the Union or
rearrange its relationship with the EU. The Eurosceptic
political elite uses the term sovereignty as a way of
trying to gain support for their beliefs, and so this
paper is written in accordance with this argument, to
analyse whether the EU is in fact a real threat to
sovereignty in Britain.
To do so effectively this paper firstly lays out
what sovereignty is, how it is generally understood and
its uses in contemporary political thought, this is
achieved in the first chapter. However, one has to decide
4
in which context to use this term, because, as we shall
discover, sovereignty has been used, throughout history,
in complex and varied ways. To analyse these differing
uses of sovereignty and provide our own meaningful
definition, the first chapter will use the workings of
different academics that suggest alternative
categorisations of the term sovereignty. As these
categorisations have degrees of overlap and common
meanings or understandings I will provide an overarching
notion of my own which encapsulates the underlying
character of sovereignty, which we will consider through
the rest of the paper. The first chapter will also
introduce some critics of sovereignty who believe that
the use of the term as a concept, in international
relations and in political thought, is out dated and void
in the modern world. This standpoint on sovereignty
brings into focus views regarding what other issues arise
when one uses the notion of sovereignty.
The second chapter revolves around the history of
the European Union. This provides a fantastic context
from which we get to know the changing nature of the
5
Union and how it has developed throughout its history as
a multi-national organisation. Knowing the specific and
the unique process, by which the EU has become the
institute it is today, will provide us with the
established, as well as the, continuously evolving
characteristics of the EU. From this background we can
then see where the prominent issues with sovereignty
arises.
It is here where the third chapter wrestles with the
questions of sovereignty and the EU-UK relationship. The
concept of sovereignty we arise at in Chapter 1 is
continued into Chapter 3. By following and analysing some
of the major EU Treaties and ECJ (European Court of
Justice) rulings and their outcomes, we are able to
scrutinise what effect they, or indeed, may have on both
specific notions of sovereignty, and on sovereignty as a
whole.
The last chapter, Chapter 4, analyses some of the
other possible threats to sovereignty in the modern
world. It covers suggested threats such as:
globalisation, the Internet and the global economy. This
6
chapter then analyses the extent to which these phenomena
threat different notions of sovereignty, most notably the
concepts of domestic and interdependence sovereignty.
Chapter 1
Sovereignty in theory and practice and the UK
perspective
The term sovereignty, like many concepts in
international relations, politics and philosophy, is a
highly debated issue due to “the bewildering ambiguity of
sovereignty” (Hoffman, 1998, 12) its broadness, lack of
one overriding definition and as a concept, its seemingly
dynamic adaptability. This chapter will help us to
identify an approach to and use of sovereignty, which we
will carry through this paper, whilst discussing the
relationship between the EU and the UK. The modern
understanding of sovereignty derives from a State’s power
to have supreme authority within a defined territory and
be independent from external pressures and influences
7
(Newman, 1996, 6. Walker, 2006, 6.) Although this
generally accepted notion of sovereignty seems
straightforward enough, there are schools of thought that
question the extent to which ‘sovereignty’ can be used in
the modern world.
To analyse what sovereignty means and its uses, this
chapter will focus firstly on evolution of sovereignty,
from its origins up to its modern interpretation and how
it is understood in the contemporary world. From here
this chapter will identify two different ways of
categorising sovereignty and then identify which
categories can be justifiably used, in relation to the
title of this paper.
To contextualise the UK specific issues with
sovereignty Parliamentary sovereignty is discussed
briefly, in the context of the exceptionalism of British
politics.
Westphalian or post-Westphalian Sovereignty
In his book Sovereignty in Transition; Essays in
European Law, Neil Walker accepts that sovereignty is an
ever-changing notion and identifies a two-phase process
8
of change: the Westphalian phase and the post-Westphalian
phase (Walker, 2006, 9). The first phase is based on the
debated definition of sovereignty and focuses largely on
Neil Walker’s comment that the phase “refers to the
international order of sovereign states…established after
the Peace of Westphalia in 1948” (Walker, 2006, 9). In
this phase sovereignty is seen to be an amalgamation of
two frameworks of law that supported the international
system and the individual state simultaneously:
Constitutional and International Law. These separate but
compatible frameworks dominated the “one-dimensional
configuration of legal states” (Walker, 2006, 9) where
the international laws of the Westphalian phase governed
the laws of international relations, providing a base of
non-interventionism within the international system, and
combined this idea with the constitutional law of
individual states, which gave the state the authority for
sovereignty within its defined territory, placed domestic
law with priority of international law and therefore put
the state and its independence at the heart of
international relations. Walker goes on to suggest that
9
through the processes of interconnectedness, sovereignty
has now moved politically, economically, socially and
technologically towards a post-Westphalian phase. Walker
introduces this idea due to “the growth of polities which
are not states but which rival states in terms of legal
and political authority- pragmatically the EU.” (Walker,
2006, 10). The post-Westphalian phase of sovereignty
takes into account the changes in the modern world that
challenge “the effective political capacity of the state”
(Walker, 2006, 10) and therefore the notion of
sovereignty itself, but within which the use of the term
‘sovereignty’ “continues to form part of the object
language” (Walker, 2006, 10) in international relations.
Due to the nature of this title, this paper will be
operating set in relation to Walker’s post-Westphalian
phase of sovereignty, since one cannot simply disregard
the challenges to sovereignty.
Newman’s classifications of sovereignty
Although this paper accepts that sovereignty is an
adaptable and changing concept there is a need to try and
clarify what one understands about the term sovereignty
10
and how one uses the term. This is because “the term
‘sovereignty’ is inherently ambiguous” (Newman, 1996, 5).
This ‘inherent’ ambiguity stems from the wide-ranging
uses of the concept of sovereignty by many theorists,
politicians and states to justify actions, rhetorics and
ideologies. In this paper therefore we must try to settle
on the most appropriate use of the term in relation to
the title, while bearing in mind Walker’s notion of the
post-Westphalian phase of sovereignty. Michael Newman
starts with the generally accepted understanding of
sovereignty deriving from the classical realist view on
international relations (as stated above). Newman calls
this State sovereignty. State sovereignty has its basis in the
Realist thinkers of the Enlightenment, and takes us
towards the internal set up of the state by suggesting:
“power should be vested in a single source which [is
then] free from external and internal constraints.”
(Newman, 1996, 5) This notion of sovereignty allows for a
wide range of political variations since it does not
specify a democratic content, so could be accomplished by
absolute monarchy or any authoritarian regime. Newman’s
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second classification of sovereignty, which has
similarities with state sovereignty, is Legal Sovereignty,
which introduces the concept of international law into
the sovereignty debate. Legal sovereignty suggests that
the sovereign body within the sate creates laws that are
“habitually obeyed by society without owing obedience to
another authority.” (Newman, 1996, 6). The sovereign has
the power to enforce it laws on its citizens but there is
no “external body… [that has] the ability to impose
penalties on the sovereign authority” (Newman, 1996, 6).
And without an international sovereign to uphold laws
determining international behaviour or norms there can be
no international law. Domestic law therefore becomes the
only source of legitimate power within the world.
Of the two previous classifications of sovereignty,
neither has any correlation to democratic ideas, and
because this paper deals with the contemporary politics
of the UK we are able to largely disregard these from the
classifications we shall use. One category we must
consider is the doctrine of “popular sovereignty” (Newman,
1996, 6). This is based upon John Locke’s idea that
12
sovereignty does not reside in the state but in the
people (Newman, 1996, 6). This concept can only occur
within a state that demonstrates democratic principles,
as it was the people who should decide on how their
combined sovereignty should be wielded (Newman, 1996, 6).
This notion of sovereignty is an important one to
consider as we go through this paper, since it does not
express the complete concept of sovereignty. If we
combine it with Newman’s national sovereignty categorisation
of sovereignty, it provides a more compelling overview of
the modern use of sovereignty. National sovereignty
derives from the idea that the state represents the
nation, which is the embodiment of the entire population
within the state, and so with the nation-state upholds
national sovereignty (Newman, 1996, 6-7).
The combination of these latter categories of
sovereignty leads us to, what I believe broadly
encapsulates, the notion of sovereignty within the UK.
The thinking that (a) sovereignty does not reside in the
sate but within the people of a state and that (b) the
state represents the nation and therefore its sovereignty
13
can clearly be seen within the UK: As a well-established
liberal democratic state, it is the electorate that
elects the government giving it the authority to
represent their interests as individuals and as a
collective. From this viewpoint I coin the term domestic
popular democratic sovereignty as a way of expressing these
combined notions of sovereignty.
Krasner’s classifications of sovereignty
We have engaged the sovereignty debate, to the most
part, as part of the state level sphere of politics, but
we must also consider the international sphere of
politics. Here more analysis is required to help us
understand the true meaning of the concept, Stephen
Krasner’s four terms of sovereignty assists us in this
aspect1. Krasner’s concentration on the internal aspects
of sovereignty leads him to identify the use of
international legal sovereignty, which is the
‘recognition’ of a state that has “formal juridical
independence” (Krasner, 1999, 3). This recognition is
largely between individual states but also and, possibly
1 Whilst also bearing in mind the state level of sovereignty analysis previously assessed.
14
more importantly, by supra-national non-governmental
organisations such as the UN, EU and NATO to name just a
few. This term concentrates on the legitimate authority
of the state rather than the capacity of control of the
state. This term, whilst important in the international
system, can be largely omitted as part of our analysis of
sovereignty as the UK is a well-established state,
regarded and recognised by the international community
due to its involvement and membership of such, and the
above mentioned, international organisations. We can
therefore move onto Krasner’s next term: Westphalian
sovereignty. This term refers to the “exclusion of
external actors” from the political authority as the sole
arbiter of legitimate behaviour in a given territory
(Krasner, 1999, 4). Like international legal sovereignty,
Westphalian sovereignty relates to the concept of
authority. However the concept of control does enter into
the term due to the capability of the state in
controlling the influence of external actors within their
borders or politics. This term will be developed further,
later on in this chapter in relation to Krasner’s other
15
terms of sovereignty when we try and identify which term
is most adequate for our analysis. Domestic sovereignty
is the next identifiable term for Krasner, which refers
to: the “political authority within the state and the
ability of public authorities to exercise effective
control within its borders” (Krasner, 1999, 4). Domestic
sovereignty and Westphalian sovereignty are inherently
linked. The ability of a state to effectively exercise
its authority and remain independent from external actors
and influences is vital when talking about sovereignty
within the international system. These terms also link
with the final term Krasner identifies but which has a
greater reference to control. Interdependence sovereignty
is the ability of public authorities to “regulate
movement across its borders”, be that of information,
goods, people or capital (Krasner, 1999, 4). This term is
important when considering the multi dimensional
relationships between for example the UK and the EU;
however, the term is not substantial enough to cover the
entirety of these relationships. To do so we must
consider Westphalian, domestic and interdependence
16
sovereignty as a collective to discover a true and actual
realisation of the concept of sovereignty.
Parliamentary sovereignty
Britain is unique in the democratic world, it has no
codified or entrenched constitution, but instead every
Act of Parliament that is passed becomes part of the
dynamic, evolving and adaptable nature of the British
Constitution. Within this setting the “Parliament
occupies a central place” (Jowell, 2011, 35) as the
legislation power of parliament is paramount within the
UK, known as parliamentary sovereignty. “It is regarded
as a fundamental constitutional rule that there are no
legal limits upon Westminster’s legislative powers, and
that the courts may not question or review the validity
of legislation” (Jowell, 2011, 35). Domestic popular
democratic sovereignty encapsulates the fundamental ideas
of parliamentary sovereignty, as it gives focus to all
the major features of parliament: the domestic nature of
its influence; the popular aspect of the first-past-the-
post electoral voting system and the democratic identity
of the House of Commons. This paper will use the term
17
parliamentary sovereignty due to its use in other
academic works, but when mentioned the focus will still
be on the domestic popular democratic sovereignty notion,
parliamentary sovereignty, therefore, can be seen as an
aspect of this notion and not the notion itself.
Although there is a link between Krasner’s last
three classifications of sovereignty, domestic
sovereignty has the ability to encapsulate all three,
especially if we couple it with the inner state
categorisation, described in the previous paragraph. In
other words, if we combine the notion of popular democratic
democracy with the use of democratic sovereignty to create
the idea of domestic popular democratic sovereignty we
can try to explain the notion of sovereignty within the
UK. The democratic aspect of this term describes the way
with which the UK has control over its internal politics2,
whilst trying to minimise external actors and influences,
at the same time having legitimate authority to do so
within its defined territory. Simultaneously, the popular
democratic aspect of this term further justifies the 2 Including economic, social, political and institutional policies.
18
legitimisation of the authority and sovereignty of the
state due to its democratic nature and so acts in the
interests of and on the behalf of its citizenry. This
term can also be related to another term used frequently
in British politics and political theories3 on
sovereignty, which is: parliamentary sovereignty.
Parliamentary sovereignty derives from the notion that
“any Act of Parliament, or part of an Act of Parliament,
which makes new law, or repeals or modifies an existing
law, will be obeyed by the courts.” (Nakano, 2013, 92).
Is sovereignty that salient?
Critics of the saliency of sovereignty argue “that
in a world in which many circuits of power operate beyond
the direct control of the sovereign state, a trend…
exacerbated by [the] process of globalisation or trans-
nationalisation…sovereignty figures lower and lower in
the register of explanatory variables which may be
involved to make sense of that world” (Walker, 2006, 6).
The notion that sovereignty becomes progressively less
and less adept at clarifying the extent to which the
3 See Nakano, 2013. George, 1991.
19
state has the “actual capacity…to retain full internal
control and external independence” (Walker, 2006, 6). In
fact, it is possible to argue that the state is no longer
the sole locus of constitutional, authority and is now
joined by other sites (Walker, 2006, 4). It can also be
suggested that the use of the term sovereignty is
actually irrelevant, no matter what point of history one
considers. There is a debate, which questions the
fundamental concepts of sovereignty and the state; where
the state has the rightful authority within the state and
its independence from external forces. Newman argues that
no state has ever had the ability to hold a monopoly of
power, for one; and for another, that states are highly
constrained by international forces, a situation which
has only increased in the modern world. (Newman, 1996, 9-
10)
The pooling of sovereignty is a well-debated notion
that surrounds the issue of sovereignty and the EU, it
stems from the idea that member states give up some of
their powers of legislation and juridical sovereignty to
20
the EU when they join in order to maximise national
sovereignty. Whilst some pro sovereignty advocates
suggest, “the pooling of sovereignty is...a zero sum game
[and] with each gain made by the EU representing an
absolute loss for Britain” (Baker, 2001,277). Gibbins
suggests, however, that this pooling of sovereignty is
actually beneficial because as “sovereignty is a shared
concept, Britain can effectively influence Europe via its
own particular vision thus bolstering its own national
sovereignty”(Gibbins, 2012, 129). Instead of the idea
that Britain is threatened by the encroachment of Europe
it can be suggested that the pooling of sovereignty can
create a more harmonious relationship between the member
states of the EU via the “principle of subsidiarity,
rather than on the zero-sum game of competition for
sovereignty” (Schierman, 2006, 19) that is facilitated by
the EU. The EU therefore “offers the hope of transcending
the sovereign state rather than simply replicating it in
some superstate” (Schierman, 2006, 19).
Despite this approach within the study of
sovereignty in relation to the EU, one can observe the EU
21
developing into a quasi federal state, with the transfer
of power away from the nation state, with its
democratically elected governments and “becoming
increasingly and irreversibly centralised” (Gibbins,
2012, 152) within the legislator system of the EU which
is threatening British independence, the intrinsic notion
of parliamentary sovereignty and all categorisations of
sovereignty discussed above. The nation state is still
the primary actor within international relations due to,
and because of, domestic popular democratic sovereignty.
This chapter has given us the basis from which we
will discuss and analyse the EU sovereignty debate, as
well as giving a brief introduction into the problems
that arise when entering into this debate. Krasner’s and
Newman’s categorisation of sovereignty are important to
remember as we progress through this paper and consider
the complex relationship between the EU and the UK. The
idea of a post-Westphalian phase of sovereignty
introduced by Walker is a very significant concept as it
identifies both the changing nature of sovereignty whilst
22
also, more importantly, recognising the fact that
sovereignty does face threats in the contemporary world.
Newman’s categorisations of sovereignty, though
important, do not seem to capture the real essence of
sovereignty or provide an overarching concept of
sovereignty. This chapter, therefore, builds upon
Newman’s suggestions and identifies the notion of domestic
popular democratic sovereignty, which provides a more complete
understanding of the use of sovereignty and can be used
specifically in context with the UK. Krasner’s
categorisations of sovereignty are also expressed within
this chapter, which provide a identifiable way by which
to see how sovereignty can be undermined by differing
threats and limitations.
Chapter 2
Brief History of the European Union
The previous chapter allowed us to recognise the
differing aspects and beliefs behind sovereignty and led
us to the notion that covers the vast majority of
sovereignty beliefs and categorisations. The notion of
23
domestic popular democratic sovereignty, based upon the notion of
the state being the highest authority of legitimate
control and independent from outside influences.
However, to understand the contemporary relationship
between the UK and the EU one must first look at how the
European Union came about: what principles it is built
upon and how it has changed through the decades, from a
purely economic international organization to the quasi
political body it is today. This chapter will go through
the states of European integration from the 1950s, with
the establishing of the European Coal and Steel
Community, to the creation of the EU, which we see today.
The evolving nature of the EU will help us appreciate the
relationship that the UK and the EU have, whilst also
creating a setting within which we can see where the
issues with sovereignty arise.
1950 – 1970
The origins of the European Union stem from the
European Coal and Steel Community founded (ECSC) in 1951.
The aim of this Treaty was to create a common market for
coal, steel and iron based on the Schuman plan, drawn up
24
between Belgium, France, Germany, Italy, Luxembourg and
the Netherlands (Egenhofer, 2011, 5). In essence, the
move towards a common European market intended to remove
the possibility of another war between France and Germany
by denationalising the basic industries fundamental to
arms development on a mass scale whilst simultaneously
linking the two economies together to further ensure that
war would be less likely (Jowell, 2011,103). This
economic integration was an “important step in the
European integration process” (Egenhofer, 2011, 5). It
would set the scene for further inter-state European co-
operation; a co-operation that still dominates western
Europe today.
Building on the success of the ECSE a European
political union seemed to be the next step in bringing
Europe together. This notion of a political union came
into brief existence as the outcome of attempts to create
the European Defence Community (EDC), followed by a
Political European Union and an integrated European
Foreign Policy. The EDC offered a way for the member
states of the ECSC to combine and integrate their armies
25
and create an overarching European army (Egenhofer, 2011,
5). The EDC was a non-starter as defence “was the sector
where, more than any other sector, a movement away from
national control would be seen as an attack on
sovereignty” (George, 1991, 6) and therefore in 1954 the
“French parliament refused to ratify the Treaty for fear
of transferring sovereignty over national defence policy”
(Egenhofer, 2011, 5). Unlike NATO, which was a clear
confederation of states sharing and working together
towards a common foreign policy, the EDC was seen as a
federalist system with the control of the combined army
falling outside of national government’s power, and
therefore removing the state’s abilities to protect its
own boarders from within. The failure to ratify the EDC
seemed to provide an obstacle for further integration to
take place since both the Political European Union and
the integration of European Foreign Policy were also
aborted during 1952-1953 (Egenhofer, 2011, 5).
Following the failure of these political integration
proposals a shift back to economic co-operation followed
through the Treaties of Rome, 1957: Treaty on the
26
European Economic Community (EEC) and the Euratom Treaty
(Jowell, 2011, 103). The EEC extended the reach of the
ECSC from coal and steel to “all economic sectors...
[with] the creation of a customs union.” (Egenhofer,
2011, 6). The EEC removed internal quotas and border
tariffs between its members and replaced them with a
common external tariff, in essence setting up a free
trade area within Europe between its members. The EEC
seemed to be a purely economic form of European
integration but in reality the notion of an ‘ever closer
union’ (George, 1991, 11) and the instigation of the
institutions needed to co-ordinate such polices resulted
in “both an economic and political exercise” (George,
1991, 11). Whilst the EEC was a success, the Euratom
Treaty was another set back for European integration.
Euratom was a proposal to bring the atomic energy
industries of member states under the control of the
greater community rather than the individual states.
However, once again national governments were unwilling
to give up their control of their own national energy
programmes, although it was signed and ratified the
27
Euratom proposal did not develop into the larger
programme that may have been intended and by 1973 it had
already lost some of its original standing (Egenhofer,
2011, 6).
European integration took a huge step forward in the
1960s and ‘70s due to some major rulings by the European
Court of Justice. The ECJ was created in 1952 alongside
the ESCS and adopted by the EEC and Euratom in 1957. It
was given the power to interpret laws created by the
various European institutions and ensuring equal
application across the whole European membership. The
rulings in the ‘60s and ‘70s “confirmed the primacy of EU
law over national law” (Egenhofer, 2011, 6). In other
words the ECJ “established … that Community law must
always take precedent over national law where there is
any conflict.” (George, 1991,85). These rulings therefore
created a deepening and furthering of European
integration by creating an environment within which
participating states have to obey European Law and may
not create legislation or amend existing legislation that
28
may go against those national laws, thus highly
politicising the integration procedure.
A further politicisation of integration came via the
change in funding of the EEC during 1965. The EEC had
been funded by member contributions until the Commission,
the institution within the EC that proposes legislations,
“proposed that there should be a shift to an automatic
funding mechanism which would involve the revenue from
the common external tariff and the levy on imported
agricultural products becoming the EEC’s ‘own’ resources.
” (George, 1991, 18). The EEC now had its own source of
income, thus removing the power of the purse away from
the member states and into the EEC’s own sphere of
influence and power. This can even be viewed even as step
towards supra-nationalism.
1971 - 1992
The collapse of the Bretton Woods system in 1971
lead to a period of slow growth and economic crises
across the West (Egenhofer, 2011, 7) and another anxious
time for the European integration process. To protect
their own economies and currencies member states went
29
against the free trade ethos of the EEC and re-
established “non-tariff barriers to trade and economic
divergence that threatened achievements such as the
common market and the common agricultural programme”
(Egenhofer, 2011, 7). Going against the ethos of the free
market and free trade within Europe and developing
national programmes in order to protect national states
was seen as a push back from integration as states did
not believe that the EEC was capable of either creating a
stronger economic atmosphere or of protecting its members
when there were global economic uncertainties.
The EEC responded to these policies by itself
“pursing an active competition policy” (Egenhofer, 2011,
7). Encouraged by this strategy and after grasping the
realisation that national programmes had failed to do
their required tasks, and had possibly made things worse,
member states once again rallied behind the EEC and
became increasingly willing to deepen integration
further. From this came the: European monetary system
(EMS), a stronger internal market and further co-
ordination of foreign policy matters (Egenhofer, 2011,
30
7). The EMS itself was a reaction to the collapse of the
Bretton Woods system, formed in order to try and
stabilise the currencies of the member states, whilst
creating price stability throughout the EEC. As the EMS
was set up to create stable currencies, the internal
market programme tried to create an environment within
Europe which could allow for a healthy European economy,
by enabling European countries to compete more
successfully in the global market, as well as increasing
regulations on non-trade barriers within the EEC itself
(Egenhofer, 2011, 7-8). These initiatives were embodied
into the Single European Act (SEA) of 1987, which aimed
to establish a single overarching internal market within
Europe and remove non-tariff trade barriers by 1992.
Post Maastricht and the Creation of the EU
The success of the EMS and the single market
triggered the notion of furthering and deepening the
monetary and fiscal integration of Europe via a process
of monetary union through which member states would share
a common currency (Egenhofer, 2011, 9). There were also
calls however to address the imbalance within the EEC of
31
economic and political powers and competencies, sometimes
known as the “economic giant and the political dwarf”
(Egenhofer, 2011, 9). The outcomes of these notions of
greater integration were represented in the Maastricht
Treat in 1992. The Treaty renamed the EEC to become the
European Community (EC) allowing for the EC to broaden
the scope of its competencies away from purely economic
issues towards a wider political agenda. “The Treaty of
Maastricht embodied a first attempt at a common approach
in policy areas that hitherto been considered the
traditional competences of sovereign states” (Egenhofer,
2011, 9), thus starting a process of political
integration under the protection of the EC, such as
European citizenship, cross border police co-operation,
common immigration, foreign and security policies.
The Treaty did not go as far as absorbing foreign
affairs, justice and home affairs into the parameters of
the EC, instead, to allow states some control over what
actions were taken in regards to these issues, a pillar
structure was therefore established to define what remits
member states and the EC had over certain policies and
32
issues whilst also outlining the way in which these
issues were agreed and acted upon (Jowell, 2011, 103).
The first pillar covered the original competences of
the EEC and then the EC, the internal market, monetary
union and the common policies and actions that had
previously been agreed upon in past Treaties (Jowell,
2011, 103). Ratification of policies and legislation
within the first pillar was accomplished through what is
known as the ‘Community method”: the EC proposes
legislation that can be amended by member states, via the
Council of Ministers, and the European Parliament on the
basis of majority rule: qualified majority voting
(Egenhofer, 2011,iii) and which was then scrutinised by
the ECJ. This organisation of the first pillar allows for
the EC to control, effectively and efficiently, the cross
border roles of the economic integration process and all
that lies under that remit (Jowell, 2011, 103).
The second and third pillars were established to
allow member states a degree of control in policies and
issues that seemed to be too salient issues for member
states to give up to the EC entirely; such as the Common
33
and Foreign and Security policy (CFSP) and Justice and
Home Affairs (JHA), respectively. Within these pillars
the process of agreeing and legitimising policy was
conducted through intergovernmental decision making, with
the necessity for unanimous decision-making between those
members, needing to find consensus between themselves to
ratify agreements, in order to avoid a state using the
power of the veto to prevent legislation being passed
successfully. The EC, European Parliament and the ECJ
play a very limited role within these latter two pillars,
allowing further state control over these issues.
The Maastricht Treaty also introduced the Euro as
the common currency of the EC, which all member states
would use4. The Treaty established the European Central
Bank (ECB), which manages the currency on behalf of the
Economic and Monetary Union (EMU). The EMU was a major
step in political and economic integration for its
members as it “includes giving up authority to control
the level of interest rates and tying national public
finances to the Stability and Growth Pact with rules for
the national deficit.” (Egenhofer, 2011, 10). Member 4 With the exceptions of the UK, Sweden and Denmark.
34
states no longer had their own national currency and had
therefore given up the power of controlling and
initiating policies to regulate their currency to best
suit the economic situation they might find themselves
in. Instead the EC itself, with the help of the ECB had
taken over currency regulation in a federalist role of a
supra-national entity.
Following the Maastricht Treaty and the setting up
of the pillar system, the Treaty of Amsterdam was signed
in1997. It was signed as a way of finishing aspects that
were not agreed upon previously. One such issue was
the primacy of EU law over national law or the amount of
influence national governments have over policy
decisions. The Treaty of Lisbon did outline the ways in
which states may withdraw voluntarily from the union
(Alder-Nissen, 2008, 110) when it is either “practically
[or] politically untenable. Thus, as far as membership of
the Community is concerned, the doctrine of Parliamentary
sovereignty is, at least, in abeyance, if not completely
undermined” (Nakano, 2013, 93) and so is the notion of
domestic popular democratic sovereignty.
Within this chapter we have gone through the
development of the sovereignty argument in relation to
the UK and the EU. We have discussed the major rulings
and Treaties that have changed the nature of the EU,
which in turn change the nature of the relationship
51
between the EU and the UK as well as the threat to
domestic, Westphalian, international legal and
interdependence sovereignty. The ECJ rulings of 1963 and
1964 were a vital turning point in both the integration
process and the threat to individual state sovereignty by
establishing the supremacy of EC law over national law.
These two cases have been seen to undermine and threaten
the international legal, Westphalian and Domestic
sovereignty of the UK. The organisational structure of
the EU also places bias heavily upon the Union over the
member states. Member states’ ability to create
independent legislation has been undermined throughout
the evolution of the EU leading to a further decrease in
domestic sovereignty for those states.
Chapter 4
Other threats to sovereignty.
This paper so far has focused on the EU as one of
the threats to domestic popular democratic sovereignty,
this chapter will therefore now focus on some of the
other phenomena that undermine the notion of sovereignty,
52
and how they relate to our understanding of the nation
state and the concept of sovereignty. Unlike the
previous chapter, where the argument stemmed around
sovereignty being lost, this chapter focuses on “whether
there can be a loss of sovereignty at one level without
its inevitable and resultant re-creation at the other”
(Schierman, 2006, 22). In the case of the EU we can see
that if sovereignty is lost by a state the EU gains
greater sovereignty as a result, but with such phenomena
like globalisation the answer is less clear. There is not
one body or organisation that may lead to a loss of state
sovereignty, instead there is a multitude of internal and
external factors that shape the way within which a state
can operate as a sovereign body and display the nature of
domestic popular democratic sovereignty.
The Global Economy
The debate whether globalisation is a prominent
threat to sovereignty is one that is highly publicised.
Globalisation can be defined as a growing state of
interdependence and interconnection within all tiers of
society and can be determined within virtually every
53
aspect of modern life (Giddens, 2003, 6-10). What we
shall see however, in relation to sovereignty, are some
specific threats to interdependence sovereignty and to a
lesser extent domestic sovereignty11 due to globalisation.
The term globalisation is most commonly associated with
the transformations within the global economy (post-cold
war), combined with its association with global market
capitalism, multi-national corporations (MNCs) and the
global integration of markets link with global market
capitalism and integration of markets (Jones, 2006, 2) as
well as the emergence of multi-national corporations
(MNCs). With the rise of MNCs, using the increasingly
interconnectedness and interdependence of economies rose
a system of complete unaccountability of business
existing outside the institutional constraints of the
nation-state due to the intensification of borderless
economic activity (Veseth, 2002, 205).
Some scholars argue that MNCs; like all other
aspects of the economy, are heavily influenced by
individual states, the states they operate in as well as
those they seek to do business with. It can be said that 11 Two of Krasner’s classifications of soveriegnty
54
MNCs that operate within the US for example, where there
is a large populous with a cemented consumer culture and
therefore a vast domestic market, often create a separate
a department within a state, to optimise their role
within this large market, or they chose to develop that
location as a headquarters. (Yip, 1996, 8-10). Sates can
be seen as being able to make MNCs adapt their
corporation, economic and social policies to align with
the aims or ideals of the state, if the MNC wishes to
enter and do business within the state’s economy,
especially if the economy is large.
However, this approach to globalisation and the
state is more idealistic than realistic. It is also
possible to see that “where states were once the masters
of markets. Now it is the markets which, on many crucial
issues, are masters over the governments of states”
(Strange, 2012, 220). This notion can be seen through the
facts that many national governments have deregulated
their financial and labour markets in a bid to adapt to
the evolving systems and anomalies within a globalised
market structure, as well as trying to create the
55
environments that MNCs find most appealing and in which
they are more likely to invest and operate within. These
actions minimise a state’s power on issues of economics
and results in policy more geared towards market
resolution rather that state control. Thus, globalisation
has forced a greater emphasis on privatised economics,
and in turn, has resulted in a further shift from public
to private, further restricting the power of states to
provide monetary solutions12. Cerny goes further by
suggesting that its is not only such organisations as
MNCs that decrease the role, authority and power of the
state to regulate its economy but also the state itself:
“Competing parts of the national state apparatus itself to defend and
expand their economic and political turf through activities such as
transnational policy networking… [and] competitive deregulation – has both
undermined the control span of the state … and fragmented it from within”
(Cerny, 2003, 210)
12 The privatization of major industries in Britain under the Thatcher government is a prime example.
56
This fragmentation of the state can be seen to
inevitably produce a greater orientation towards either
regional policy making or subnational, due to the need
for a greater diversity in structural rivalry (Jessop,
1992, 12). Many theorists have suggested that the results
of this change, may lead to policy making being geared
towards economic competition, before social and political
issues, while simultaneously, as witnessed in the UK,
diverting attention from national policy control to more
regional-local authority. This has resulted in the
growing competition, wealth and independence for urban
cities, such as London, whilst other areas of the state
descend into discriminatory decentralisation (Scott,
2013). Thus, globalisation creates the conditions for
subnational autonomy to thrive, which inevitably
threatens the sovereignty of the nation state,
specifically parliamentary sovereignty, as well as
domestic popular democratic sovereignty. As regional and
local authorities try to encourage investment into their
areas of authority the role of the government decreases,
it is less able to create legislation that is compatible
57
across the state. The very nature of devolving power to
independent governing bodies creates a direct threat to
national sovereignty through the development of a self-
interested political force within the same political
arena (Scott, 2013 Ch. 3).
Globalisation has therefore changed the way the
state works; its main function has now become “the
promotion of economic activities” (Cerny, 2003, 208). By
opening itself up to investment and external
international economies, a state decreases its ability to
regulate and control its own internal economy. By
creating a competitive, free and open economy within its
borders, but out of its control, to maximise the
possibilities of globalisation for its own ends, the
state is losing domestic sovereignty. The state is now no
longer able to provide “productive/distributive goods”
(Cerny, 2003, 211) and has therefore lost the potential
benefits of “national planning, providing employment or
increasing social justice” (Cerny, 2003, 208).
58
The Internet
The global economy also has another closely linked
effect on interdependence sovereignty. One of the most
significant and revolutionary technological advancements,
which has both accelerated the development of
globalisation and has been increased itself by
globalisation, is the Internet. The Internet helped
enable the opening of markets and liberalisation of
trade, and so challenged the institutions and sovereignty
of the state.
Firstly the Internet has enabled the further opening
of borders, by allowing fast, instant access between
providers and consumers across the world. As a broad
concept this can be referred to as the ‘digital market’
(Kobin, 2000). As the Internet led to the creation of
this digital market problems arose for central
governments to “control…the economy and the behaviour of
economic actors” (Kobin, 2000, 303) along side problems
with the regulation of their borders: “borders around
national markets and nation-states [have become]
increasingly permeable-or, perhaps, increasingly
59
irrelevant” (Kobin, 2000, 303). National governments can
be seen to be losing the ability to regulate trade across
their borders; they no longer have the authority they
once did: Private businesses can now import and export to
and from markets across the world without government
discretion or authority, due to the free market ethos
that the western world, including the UK, promotes
towards trade markets.
It is not only the issue of interdependence
sovereignty that may arise with the Internet but also
that of domestic sovereignty. The large-scale movement of
currency across boarders may lead to other domestic
issues such as a government’s ability to control the rate
of growth and the size of money supply (Kobin, 2000,
303). State currency can be exchanged and moved across
the global economy with no regulation from the national
authority. Although it seems unlikely, hard money, in the
form of bank notes or coins, may cease to circulate
within the nation state as more and more people use ‘e-
cash’. This can cause an adverse effect on the state
economy and could possibly lead to a situation where
60
“currencies issued by central banks may no longer matter”
(Kobin, 2000, 303). This would further decrease
governments’ abilities to control their economies, and so
would undermine the notion of domestic sovereignty.
With the rise of the Internet new security issues
have arisen which also threaten the sovereignty of a
state. Threats to state security have evolved from a
purely state centric threat to, ones from individuals,
groups and organisations. Cyber warfare has changed our
concept of war, from one on battlefields with a specific
enemy to one that can occur at anytime from any place
across the globe without the recipient knowing the nature
or the identity of their enemy. The UK’s economy is
heavily reliant on services and advanced technologies,
and is particularly open to attack through information
warfare, forcing government agencies to react at a time
when technology is advancing at a rate far beyond what
has previously been normal (Cordesman, 2002, 1-3). This
clearly undermines the states ability to control what
happens within its borders, specifically trying to
61
protect its citizenry and the information that it may
regard as classified while trying to protects its
national and state security. Edward Snowden, “who was
responsible for one of the most significant leaks in US
political history” (The Guardian, 2014) who was
“responsible for handing over material from one of the
world's most secretive organisations – the NSA.” (The
Guardian, 2014) can be seen as one of these major threats
to national security and the inability of states in
controlling certain aspects within their borders,
deriving from the use of the Internet.
This chapter has covered other possible threats to
state sovereignty, arising from globalisation, the global
market and the Internet. The global market and the rise
of MNCs provide a problem for domestic sovereignty due to
the
obvious difficulties for states to create independent
fiscal policies, that try to benefit the national
economy, and through which public policy can be
efficiently operated. With the global economy, states can
62
be seen to change the nature of their roles, instead of
being a body revolving around public policy it seems that
the market and economics are the salient issues for
governments. The global market might also be splintering
the authority of the central state, due to the need for
economic development in regions. This leads to regional
and local authorities commanding more influence in
localised policy making procedures benefiting a smaller
section of the community rather than the state as a
whole. The Internet can be seen to undermine
interdependence sovereignty, due to the state borders
become more permeable as the international market becomes
increasingly accessible to private companies and
individuals. Thus, trade is no longer the sole
responsibility of the state and with the free trade ethos
of the free market there is little the state can do to
regulate trade across it borders. This, again, ultimately
reduces the states ability to create a constant, and
effective, fiscal policy. Lastly the Internet can cause
security issues, for example Cyber warfare, which dilutes
the states domestic sovereignty, as it can no longer
63
sufficiently or effectively, control many aspects within
its borders.
Conclusion
This paper started by trying to understand the true
nature of sovereignty as a concept but also as an
evolving and dynamic phenomenon. To break through the
‘ambiguity of sovereignty’ this paper considered the
approaches of (a) Walker; who understood the changing
nature of sovereignty, and who identified that in the
modern world there are numerous threats to its
fundamental understanding; and that there is need
moreover a need to identify a new way of considering its
uses, by identifying the differences between the
Westphalian phase and post-Westphalian phases of
sovereignty, and (b) Newman; who tried to categorise how
the term sovereignty has been used throughout history,
which this paper found helpful, but ultimately it gave no
suggestion of what, in todays world, would be the correct
use of the term. Thus (c) the notion of domestic popular
64
democratic sovereignty was introduced as a way of using the
most relevant aspects of Newman’s classifications of
sovereignty for the issue of sovereignty in relation to
Britain and the European Union, and (d) Krasner: who
successfully identified a way of categorising sovereignty
in a specific system that allows one to identify how and
when, and what aspects of sovereignty are being
undermined or threatened in any given case.
The history of the EU was then analysed to create an
understanding on how and why the Union developed into the
institution it is today. We witnessed the evolution of
the EU from a small organisation of few European states,
based upon the need for peace and economic integration to
a trans-national political entity with its own judicial
and legislative powers and internal institutions that now
have the authority to make economic, political and
foreign policy legislation, which all member states have
to abide by and incorporate into their own national
political programmes. This chapter also allowed us to
appreciate the complex relationships between the EU and
its member states, and also providing knowledge of the
65
institutional setup of the Union, which would be vital in
the Chapter 3.
During Chapter 3 the major rulings and Treaties, by
the ECJ and the EU were identified that undermine UK
sovereignty were identified. Van Gend en Loos and Costa v ENEL
were two very important cases for the sovereignty debate,
because they both set precedents, within the Union, for
the supremacy of EU law over national state law. These
rulings made a significant impact on parliamentary
sovereignty, which should be understood as an aspect of
domestic popular democratic sovereignty, by undermining
international legal, Westphalian and democratic
sovereignty of the UK. The organisational structure of
the EU, the legislation procedure, the arrangement of the
institutions involved and the pillar structure, was then
analysed and was found to be another threat to
sovereignty in Britain. It was found that, even as a
member of the EU, the UK parliament had little control
over what legislation was passed and therefore democratic
sovereignty was defiantly undermined.
66
Although the EU is a threat to UK sovereignty there
are others threats that can be identified in the modern
world. Chapter 4 introduced some of these possible
threats and suggested how they undermine sovereignty. One
of the combined threats that were discussed was the
global market and the rise of MNCs, which provide a
problem for domestic sovereignty due to the apparent
difficulties for states in creating independent fiscal
policies, that try to both benefit the national economy,
through which public policy can be efficiently operated
upon. The global economy can also be seen to produce a
fragmented central state, it being replaced by regional
and local authorities that pursue economic policies over
public policy. Another possible threat is the Internet,
which can be seen to undermine the ability of a state to
produce efficient fiscal policies, and its control within
its own boarders, undermining its domestic and
interdependence sovereignty.
Having now analysed different threats to UK
sovereignty this paper draws the conclusion that,
67
compared to the other possible threats to sovereignty,
the European Union is indeed the greatest threat to
sovereignty in Britain. To arrive at this conclusion one
must take into account the range, depth and all-
encompassing nature of the threat the EU possesses.
Compared to the global economy, globalisation or the
Internet, which only affect one or two categorisations of
sovereignty, the EU undermines all of Krasner’s
categorisations of sovereignty, Britain’s international
legal sovereignty is undermined by the fact that the UK
can hardly be recognised as having ‘formal juridical
independence’13, as the ECJ has authority above the state
and the national courts in Britain. It can, rightfully,
be suggested that Westphalian sovereignty is also being
undermined, since one is unable to suggest that
parliament remains the sole arbiter for legitimate
behaviour within Britain, it is no longer independent
from external actors. Moreover, domestic sovereignty has
also been limited by the EU, as EU law has supremacy over
national law, which means that parliament is no longer
able to create independent national law. British national13 See chapter 1
68
laws can only be created if that does not come into
conflict with, or clash with EU law. The EU therefore
undermines every aspect of sovereignty discussed within
this paper.
The depth of the threat from the EU is pervasive,
because it penetrates deep into the British political
system. The inability to create independent legislation
goes against the issue of parliamentary sovereignty,
which is the basis of the British constitution, even if
the British constitution is un-codified or not
entrenched. Instead of parliamentary sovereignty it could
be suggested that it is, in fact, the EU that is now the
sovereign body within British politics, and that
parliament is just an institute within it, which enacts
European policy.
The all-encompassing nature of the threat from the
EU is shown by the indication that there is no feasible
way by which the UK can remove itself from this
relationship. Although the Treaty of Lisbon allowed for
voluntary withdrawal, the effects of doing so may be
politically and economically devastating for Britain.
69
Britain therefore has little defence against the
encroachment of the EU via deepening European
integration, which will increasingly undermine and damage
British sovereignty, far more greatly than any individual
aspect of globalisation.
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