Noel Dorr examines whether the EU is becoming a federation, or is it rather a new kind of international entity?
Is it true, as some of the argument in the Nice debate would suggest, that the EU is becoming a federation in all but name? And is there an inequality in the Council which should give small states such as Ireland reason for concern? These are issues which have emerged (and which John Rogers, for example, raised in his article in last Saturday's Irish Times). I think they need to be addressed.
In doing so, it will help to look first at the structure and character of the European Union.
The EU is a union of states and of peoples - something new and unprecedented in international life. It is not a state - federal or otherwise - and yet it is much more than an international organisation.
An international organisation such as the UN or the Council of Europe links governments rather than peoples. Membership may entail some voluntarily accepted limitations on independent action but it does not require a pooling or sharing of sovereignty. States, on the other hand, are themselves single sovereignties, which claim the allegiance of all their citizens and exercise both full law-making powers and a monopoly on the use of force within their territories.
The EU is something new which does not fit into either category. It is patently not a state: it is not a single sovereignty; it does not assert a right to use force, still less claim a monopoly on its use within its territory; and the treaty says explicitly that citizenship of the Union complements and does not replace national citizenship.
But the EU is also very much more than an international organisation confined to dealings between governments. If it were only that, or if it were to be reduced to that in future, there would not be the high degree of integration of interests and economies and the system of community law which characterise the EU. Neither would there be cohesion policies and structural funds or common policies on agriculture and other issues.
Some might wish that the EU would become a federation and may argue for this in future. Others, like John Rogers, would say that it has already done so in all but name. They then contrast the actual EU structure, unfavourably, with the US federal system. In the US each state elects two senators. So all of the states have equal representation in one of the two Houses of Congress. If this was the rule in the EU, they say, then all member-states should have equal votes in the Council - something which, until now, has never been the case.
In this kind of comparison, important points are sometimes overlooked. Even though there are arguments there about "states' rights", the US, unlike the EU, is a single sovereignty. It fought a bitter civil war to confirm this; there is simple majority voting in the Senate; and there is a strong executive in the person of the President. There is also a clear separation of powers between the three branches of the federal government - executive, legislative and judicial.
The EU is structured quite differently: it is not a single sovereignty; it has no president with executive powers; and there is a sharing rather than a clear separation of some powers between certain of its institutions. Furthermore, where voting in the Council is no longer by unanimity (as is already the case on most issues), what has replaced it is not majority voting, as in the US Senate, but qualified majority voting. This is a very important difference. What it means is that each member-state's vote is assigned a "weight", which takes some account of population but also of the fact that each is a sovereign state. This gives expression in practice to the unique character of the EU.
It is a carefully constructed and balanced system. There are balances between institutions, balances in voting weights between population and the sovereignty of member-states and balances between large and small states. It has worked well for Ireland. Why should we be afraid now of the further extension of qualified majority voting? After all it already applies to something like 90 per cent of Council decisions including those under the Common Agricultural Policy.
But will these balances be maintained if Nice is ratified? Many opponents of Nice say that inequality in the Council will increase because big states will treble their voting weight while that of small states will only double.
Certainly the voting weights of large member-states will increase somewhat more than those of smaller states. In part, this is to compensate them for giving up a second commissioner, as agreed five years ago at Amsterdam; and in part it is to ensure that their relative position as a group will not slip too far behind when nine new small states join. (In practice, member-states vote in the Council according to interests and not size. So Ireland's position on agriculture, for example, is usually closer to that of France, a large state, than to other small states).
If Nice is ratified what will happen in a future 27-member EU?
Ireland's voting weight in the Council will still be more than twice as great as our share of EU population;
Council decisions by qualified majority will also require the support of half, or in many cases, two-thirds of the member-states and 62 per cent of EU population;
Ireland will have one MEP for every 320,000 people, while Germany will have one for every 820,000;
There will be strict equality for all states on the Commission (one commissioner each until the EU membership reaches 27; thereafter, Commission membership to be fixed unanimously, at something less than 27, with strictly equal rotation of seats;
There will be a badly needed re-structuring of the court system and a judge will be required from each member-state;
Enhanced co-operation (such as that on the euro) will be somewhat easier but still within strict rules, which guarantee that any state which wishes may join.
Taken as a whole is this really a bad deal for Ireland or other small states? As someone who was involved over 10 months at official level in the preparatory negotiations for Nice, I cannot imagine that we will do better if we block it now and look for a new negotiation where everything will be re-opened. What of concerns about the "democratic deficit" in the EU? Of course, we all want to see greater democracy. But remember, a large state such as Germany with 20 times our population might well think the most democratic structure of all would be one based on one person one vote rather than on the careful balances with a disproportionate role for small states, which I have described. But in any case the heads of government at Nice already recognised the need to "improve . . . the democratic legitimacy and transparency of the Union and its institutions".
Debate on this and other important issues is now under way in the Convention on the Future of Europe in preparation for a major new treaty in 2004. But the immediate issue for us now is Nice. Will we accept, as everyone else has done, the reasonable and limited changes I have described?
A final point. Europe has always been a continent of conflict and turmoil. Now, for the first time in history, its diverse peoples want to come together voluntarily and by their free choice within the EU - a unique structure, which we have created in western Europe over the past 50 years and which Ireland played a full part in building since 1973. If that is to happen, we must prepare to receive them. Nice was intended and accepted by all as that preparation. Last year, we alone of all European countries said no.
When we take a major decision in our private lives we do not take it amiss if a friend asks: "Are you sure?" On Saturday the rest of Europe will ask us in Ireland: "Is that your final answer?" Surely a reasonable question when so much depends on our decision.
Noel Dorr is a former secretary of the Department of Foreign Affairs, who was involved in the official level preparatory working group for the Nice Treaty. He is a governor of The Irish Times Trust.