The Precedents for European Integration

We tend to think that Europe has been traditionally characterized by its diversity rather than its unity, and this conception is not entirely false. As we have seen, since the fall of Rome, the barbaric invasions, and the creation of the Germanic king­doms, Europe has never truly been politically unified.

In this book thus far, we have seen how over the course of their history European nations and states developed a particular system of public law based upon a common heritage, despite the diversity of the different nation-state models on the Continent. In this chapter, we shall see how prior to the post-War era Europe’s nation-states made different attempts at alliance, but with limited success, and only in specific geographical areas. It would not be not until after World War II that, for the first time in their history, European nation-states understood that they had to unite to survive in a global world. The problem was how to do so.

18.1.1 The Survival of the Universal Model

After the fall of the Western Roman Empire, the aspiration for European unity survived, to an extent. As we have seen, despite the formation of “national” kingdoms, following the Germanic invasions, popes, and emperors sought to uphold the idea that all Christendom—in this period essentially limited to modern-day Europe—formed a common community bound together by its faith.

Even if this conception was more theoretical than real because of the pronounced divisions inherent to feudalism, the idea of a universal empire controlled by the pope as head of the Catholic (universal) church and an emperor marked Europe until 1648. While there were a number of different kingdoms, their kings consid­ered the emperor, and especially the Roman pontiff, a kind of spiritual or symbolic leader.

Lutheran reform dashed the idea of a universal community and split Europe into two, pitting Catholics and Protestants against each other in a series of bloody

religious wars, which ended in 1648 with the Peace of Westphalia.^[1122] From the perspective of constitutional history, the most important consequence of the West­phalia Treaty was that henceforward Europe became a set of competing states seeking to establish their ascendancy (Treasure 2003,161-192). The ultimate result was that European history was marred by a succession of wars between the different European states. Spain lost the supremacy it gained with Philip II in 1559 through the Pyrenees Treaty (1659), while France’s decline began at Utrecht (1713), leading to the United Kingdom’s predominance as the leading European power until the end of World War I.

Despite the Westphalia Treaty, the universalist model was not entirely lost, enduring and shaping history as the institution of the state developed, drawing, as we have seen, a more or less continuous line that transformed Western public law, from the territorial monarchies of the Late Middle Ages, through the era of absolute monarchy, both classic and enlightened, until the consolidation of Britain’s parlia­mentary monarchy, the decline of absolutism and the triumph of the nation-state model, the American Revolution and France’s assembly-based republic, and the return of strong Executives in the form of the American presidential Republic and Napoleonic monarchy.

Even after the Holy Roman Empire disappeared, the imperial idea did not.^[1123] Spain’s Philip II (1556-1598), meanwhile, though not elected emperor, came to head a “universal” monarchy claiming possessions all around the world, forming an entity that would be termed the “Spanish Empire”, which lasted until 1898. From 1804 to 1815, Napoleon ruled as “Emperor of the French”, as did his nephew Louis Napoleon, better known as Napoleon III (1852-1870). Queen Victoria (1837­1901), a symbol of the apogee of the British Empire, was formally the “Empress” of India, and even Bismarck, to avenge the humiliations which Napoleon had inflicted on the Prussians, founded in 1871 the German Empire (Deutsches Reich, or II Reich) precisely in the Palace of Versailles, imposing conditions on a defeated and humiliated France.^[1124]

Half a century later this destructive dynamic of revenge and resentment would spur the French, victorious in World War I, to humiliate the vanquished Germans at the Peace of Versailles, forcing them to sign a treaty in which they had had no say, and to do so (by no means coincidentally) at Versailles once again, in Louis XIV’s Hall of Mirrors. The Germans’ tragically inevitable revenge, of course, was meted out by Adolf Hitler who, defying the dictates of Versailles, built up the Third Reich in 1933, going on to lead a maniacal quest to crush France and establish a new German-led world order.

Precisely because this imperialist, nation-based model of Europe ended up generating a series of self-destructive wars, by the middle of the twentieth century, the need became clear for a framework that would unite its different nation-states and prevent any state from imposing itself upon all others. Though a united Europe for a long time proved impossible, it is worth noting there were some attempts to integrate different kingdoms into single entities.

Also, worthy of note is the Swiss Confederation, a group of small states (cantons) that were able to retain their independence, remaining outside the Holy Roman Empire by forming a league. Composite monarchies and the Helvetic Confederation are interesting precedents of how independent states in European history were able to maintain their own legal and constitutional peculiarities while acting in concert with other states.

18.1.2 “Composite Monarchies” as a Prime Example of Unions of States in Europe

The transition from the feudal stage to the territorial monarchies of the Late Middle Ages was characterized, as we have seen, by kings’ efforts to amass the greatest possible expanses of land for their kingdoms. In some cases (Castile & Leon, for example), the territories ended up unified into a single political and legal entity. In others, however, each territory maintained its political and legal autonomy despite recognizing and respecting the same sovereign; these were composite monarchies.^[1126]

Such was the case with the Crown of Aragon, which annexed the kingdoms of Aragon, Valencia, Mallorca and the Principality of Catalonia, in addition to a series of Mediterranean territories like Sicily, Sardinia, Naples and Athens (Bisson 2002, 2). The same was true of Spain’s Catholic Monarchy which, in addition to its Iberian kingdoms, held the Crowns of Aragon and Castile (the latter including Navarre, the Canary Islands, the American colonies and a series of islands in the Pacific), and, as of 1580, Portugal and its entire colonial empire, claiming a number of territories across Europe, such as the Netherlands, the Franche-Comte, Luxem­bourg, and much of the Italian Peninsula (Naples, Sicily and Lombardy).

18.1.2.1 From the Crown of Aragon to the Spanish Catholic Monarchy

The origin of the “Crown of Aragon” was the 1137 marriage between the Count of Barcelona, Ramon Berenguer IV, and Petronila, the daughter and heiress of Ramiro II of Aragon. This union enabled their son, Alfonso II of Aragon (1164-1196) to become both the King of Aragon and the Count of Barcelona. However, the Crown’s definitive structure would be set by Jaime I, who, after reconquering the Kingdom of Valencia in 1238, rather than distributing it between the Aragon and Catalonia, converted it into an independent Kingdom. This paved the way for the subsequent incorporation of the Kingdom of Sicily at the end of the thirteenth century, the Kingdom of Mallorca in the mid-fourteenth century, and the Kingdom of Naples in the first half of the fifteenth century, among other Mediterranean territories.

All these kingdoms conserved their “constitutional” and legal autonomy even while recognizing the same king. In this way, they formed a kind of “confederation of states”^[1127] according to which the monarch was to respect the traditional privileges of each of the kingdoms and to convoke their respective estate-based assemblies, or cortes. The model was decidedly flexible and easily allowed for the incorporation of new states. It was, however, problematic in terms of facilitating effective and efficient government and administration. Montesquieu, for one, criticized the for­mer Crown of Aragon’s constitutional practices that, according to him, needlessly wasted energies on “minutiae” and “vain efforts”.^[1128]

Despite this, the model of the Crown of Aragon applied to the Spanish monar­chy^[1129] was created by the Union of the Catholic Kings (1474-1504) Isabella of Castile and Ferdinand of Aragon.^[1130] Both ruled as monarchs of a whole conglom­eration of territories forming a union of states under the “Catholic Monarchy”.^[1131] This composite monarchy was also termed “Hispanic”, in reference to the Iberian Peninsula (Roman Hispania), the nerve center of all its domains, which Philip II recognized when he moved the royal court to Madrid in 1561, because it was the geographical center of the Peninsula.

By respecting the constitutional structure of the Crown of Aragon, the Catholic Monarchy was able to significantly enlarge its territorial holdings. The government and administration of this patchwork of territories was hindered, however, by its slow and complex institutional apparatus. The king was assisted by a number of councils (consejos), and the processes involved were labyrinthine. Affairs were handled even slower under kings like Philip II, who insisted on personally dealing with nearly everything.^[1132] This system was inefficient, at best. One of the causes of the disaster of the Spanish Armada in 1588, was the slowness with which the massive, sluggish military apparatus of the Catholic Monarchy was put into action, as opposed to an England which, while much smaller, was infinitely more united and boasted a more effective government (Irigoin and Grafe 2008, 173-209).

In fact, the ineffectiveness of the Crown of Aragon’s composite model prompted the Catholic Monarchy to opt for a process of “Castillianization”, simply because Castile was an absolute state in which the king exercised undisputed power, a system that greatly facilitated decision-making. Thus, Philip V did not hesitate to seize upon the pretext of his victory against the Hispanic territories which had rebelled against him in the War of the Spanish Succession (1704-1714) to quash the “constitutional” singularity of the ancient kingdoms of the Crown of Aragon, subjecting them to a Castilian regime of government, which thereafter became a synonym for “Spanish”. In 1712, the king convoked the Assembly of Estates (Cortes) for the first time in Spanish history, which represented not only Castile but also all of Bourbon Spain (Kamen 2001, 82). By 1716, only Navarre and the Basque Country continued to enjoy special constitutional arrangements vis-a-vis the Spanish Monarchy, which both would keep until the end of the Carlist Wars, between 1839 and 1876 (Gunther et al. 2004, 45).

Spanish integration was reconsidered and came under attack at the end of the nineteenth century, with the resurgence of regionalist movements—mainly Cata­lonian and Basque—which took on a separatist dimension in the early twentieth century. During the Second Republic (1931-1936), there emerged the model of an “integral state” (estado integral) divided into “autonomous regions”. The Civil War gave way to the longstanding Franco dictatorship, which marked an emphatic return to the unitary state. With the “Transition” era and the ratification of the 1978 Constitution, Spain would give rise to a “State of Autonomous Regions”, which since 1996 has fomented a dynamic of regionalist separatism, especially in the Catalonian (Guibernau 2006, 216-224) and Basque (Jauregui 2006, 239-257) territories, on which strains and threatens the country’s model of territorial integra­tion, and has spawned unsustainable levels of public spending. Curiously, the European integration process has served as an effective deterrent against territorial disintegration.^[1133]

However, the Crown of Aragon and the Spanish Catholic Monarchy are not the only examples of composite monarchies in the European constitutional tradition. The English Crown, which brings together the United Kingdom of Great Britain, is yet another.

18.1.2.2 The English Crown and the United Kingdom of Great Britain

In the medieval era, the kings of England became the dominant political force on the island of Great Britain, bringing the territories of Wales and Scotland under their power. Since 1301, the heir to the English throne has, significantly, received the title of “Prince of Wales”—despite the fact that the Welsh actually launched several revolts against English rule, and it was not until Henry VIII that the territory joined the English kingdom (Gower 2012, 147-164).^[1134] The annexation of the Kingdom of Scotland was even more difficult, requiring numerous military cam­paigns, which met with fierce resistance by the Scottish.^[1135] The formal union of the kingdoms of England and Scotland finally came about in 1603, when James VI of Scotland became James I of England after Elizabeth I died without leaving an heir. This union, however, was not legally consolidated until a century later, in 1706, with the signing of the Treaty of Union, ratified by the English and Scottish parliaments.^[1136] Thus, on May 1, 1707 the Kingdom of Great Britain was born, adopting a flag featuring elements of those of England, Scotland and Wales.

The next step was the incorporation of Ireland, which took place a hundred years later. Although the green isle was conquered by England in 1691, the Kingdom of Ireland did not formally join the British Crown until the year 1800, forming the United Kingdom of Great Britain and Ireland.^[1137] This union would last a little more than a century, as at the end of World War I, in 1918, the victory in Ireland of the nationalist party Sinn Fein sparked armed conflict with England. This “War of Independence” (1919-1922) ended up dividing the country. After the creation of the Irish Free State in 1922, Northern Ireland remained part of the entity, which became known as “The United Kingdom of Great Britain and Northern Ireland”. This split continues to generate considerable tension between Unionist Northern Irish Protestants and independent Catholics, whose paramilitary organization, the Irish Republican Army (IRA), carries on with its struggle to unite the entire island.

Today the United Kingdom^[1138] is a monarchy with a Parliament in London but with three decentralized administrations headquartered in Edinburgh, Cardiff and Belfast, the respective capitals of Scotland, Wales and Northern Ireland. In 1997, under the “Scottish Devolution Referendum” 75 % of Scots voted in favor of the restoration of their own Parliament, in a demonstration of support that has forced the government in London to rethink the terms of Scottish integration into the United Kingdom. This led to the decentralization of the United Kingdom through the three 1998 Devolution Acts, which restructured the relationships between Scotland, Wales and Northern Ireland and the Union (Wicks 2006, 167-193). In the case of Scotland this led, in addition, to a commitment to hold a referendum on independence.^[1139]

18.1.3 Assembly-Based Integration: The Singular Case

of the Swiss Confederation

18.1.3.1 Unus Pro Omnibus, Omnes Pro Uno

“All for one and one for all” is, in reality, the slogan of one of the unique countries in the world,^[1140] a “nation” composed of several states that retain, even today, their political autonomy: the Swiss Confederation, better known as Switzerland. The country’s name comes from one of its founding cantons, Schwyz, whose flag served as a model for the Confederation’s current one, adopted at the end of the nineteenth century. From the point of view of constitutional history, the Swiss case is perhaps the only example of a political union of autonomous territories (cantons) effectively fused into a functioning confederation.

18.1.3.2 From Its Beginnings to the RUtlischwur (The Rutli Oath, 1291)

It is ironic that Switzerland would not have existed had it not been for Roman invaders. If today there are still Swiss it is because Julius Cesar, as he recorded himself in his Commentaries on the Gallic Wars, blocked an attempt by the “Helvetians” to abandon their mountainous lands en masse and settle in southern France. In fact, this early people went so far as to burn their own cities and initiate a mass emigration. In response, Caesar defeated them twice and forced them to return to their smoldering homes. The Roman leader, of course, did not act out of altruism, but rather viewed the Helvetians as a valuable buffer between Rome and the barbarian Germanic peoples to the north.^[1141]

The unique autonomy and independence of the Swiss is largely due to their mountainous terrain, featuring deep valleys, which has historically permitted them to withstand the pressure exerted by the larger states surrounding them, especially that of the Holy Roman Empire. Their national hero is William Tell, a legendary figure who may have lived between 1200 and 1300, and who stands as the symbol of Swiss freedom.^[1142] It was then when Switzerland, taking advantage of the clashes between popes and emperors, and the fragmentation of feudal Europe, succeeded in forging an autonomy that was initially reflected in the pact signed by the

representatives of the cantons of Uri, Schwyz and Unterwalden in Grutli Meadow, on the shores of Lake Lucerne, on August 1, 1291.

18.1.3.3 The Strengthening of the Swiss Confederation

Since that time the union progressively absorbed other cantons, successively forming the Confederation of Eight Cantons (Acht Orte), the 13 cantons’ Old Swiss Confederacy (Eidgenossenschaft), and the ephemeral parenthesis of the Helvetic Republic (1798-1803) formed after the invasion of the French Revolu­tionary Army, before finally reaching its current total of 26 cantons (the most recent, the Canton of Jura, was not incorporated until 1979).^[1143]

In this first confederal phase, each of the cantons was almost totally autonomous, with their own borders, currencies and armies. Despite theoretically forming part of the Holy German Roman Empire, each canton enjoyed de facto independence from it thanks to successive military victories obtained by the Swiss against foreign troops, from that scored at the Battle of Morgarten in 1315 against imperial soldiers, to their victories at Grandson and Morat over Charles the Bold, Duke of Burgundy in 1476 (which put an end to Burgundy’s independence), to their defeat of Maxi­milian, Charles V’s grandfather, in 1499. The Swiss, in fact, earned for themselves a reputation as Europe’s finest soldiers, spurring the leading European courts to hire them as mercenaries. Thus, for example, they defended Louis XVI and his family with their lives during the assault on the Palace of the Tuileries on August 10, 1792,^[1144] and even today, the pope’s personal guard in the Vatican is Swiss.

The Swiss defeat against the French King Francois I at the Battle of Marignano (1515) and the success of the Reformation, which sparked religious conflicts between the cantons (Bruening 2005), certainly weakened the strength of the cantons. The Confederation, nevertheless, survived and finally received interna­tional recognition at the Peace of Westphalia (1648).^[1145]

Switzerland was last invaded by Napoleon, in 1798, in the course of his Italian Campaign against Austria. Paradoxically, this was an occupation which served to strengthen the Confederation through the formation of the vassal state (van Caenegem 2009, 241) called the Helvetian Republic, as Bonaparte incorporated into it the cantons of Vaud, Saint Gall, Grisons, Aargau, Thurgau and Ticino. Since this time, Switzerland has suffered no further invasions and has remained an essentially neutral country, avoiding participation in both World War I and World War II. Not even Hitler dared to invade it (Leitz 2000, 13-24).

18.1.3.4 The Stage of the Federal State

The strictly “confederal” stage ended, however, in an especially fateful year in European history: 1848 (Humair 2009). Until then the cantons were completely independent, maintaining only temporary alliances between them. On occasion, these alliances were defensive and other times, offensive, such as that forged by the Canton of Bern in the sixteenth century. Bern’s imperialism, which was strongly consolidated in the eighteenth century,^[1146] however, would end up setting off a revolt by the Catholic cantons in November of 1847, fought for separation from the others in the Sonderbund War (Sonderbundskrieg) (Andrey 1991, 263-265). The Protes­tant cantons prevailed, imposing the federal Constitution of September 12, 1848, which was partially revised in 1866.^[1147] On May 29, 1874, the Confederation was given a new constitution that, among other innovations, introduced referendums as a standard instrument to provide for direct democracy (Zimmer 2007, 168). This constitution was ultimately replaced by the new Swiss Federal Constitution, adopted by the cantons on April 18, 1999 and which entered into force on January 1, 2000.^[1148]

18.1.3.5 The Most Democratic Country in the World?

Switzerland is a truly unique country, in many ways. It is one of the few “confed­erations” that works, consisting of 26 cantons and almost 3,000 municipalities. Since 1848, the Swiss Confederation has been a “federal state”. However, unlike the United States of America, for example, it lacks a strong executive power. It is essentially a state controlled by its legislative assembly, in which the most impor­tant powers are shared at the three territorial levels: local, canton and federal.^[1149] There is an executive council consisting of seven federal councilors who take turns representing the federal government. The office of president is largely ceremonial, which is why almost no one can name the current Swiss president, a post that changes every year.

Of the three levels of government—local, cantonal and confederal—the least important is probably the latter, as the cantons and municipalities enjoy a great degree of autonomy. Thus, for example, the granting of Swiss nationality is decided by the municipalities rather than by the canton or the federal government.^[1150] If one is not accepted by his neighbors, he simply cannot become Swiss. Taxes, on the other hand, are paid and distributed across the three levels. Income taxes are earmarked mainly for the municipalities, which have the authority to determine whether an aspiring immigrant is allowed to reside in them or not. The federal state is essentially sustained by customs duties. Although today its revenues have increased thanks to the creation of new taxes, it continues to be the least-funded stage of government. Each level of government features checks and balances. Thus, for example, at the city level there are councilmen who elect the mayor, who is overseen by a Communal Council that verifies and manages the accounts.^[1151]

Switzerland is also a country featuring a striking degree of “direct democracy”. Its eight million inhabitants (For the first quarter 2014, a permanent resident population of 8,160.9:6,208.9 Swiss, 1,952.0 foreigners, according to The Federal Statistical Office) are frequently consulted via referendums on a whole range of topics. Twenty thousand signatures are sufficient for the confederal government to be compelled to hold these votes, such that several are held every year. Participation is not very high (around 30 %) but this does not keep them from yielding decisions on matters of great importance.^[1152]

Switzerland, however, is also a country of contrasts. Despite its many progres­sive policies, it was the last European country to grant its women the vote, as they only gained the right to suffrage throughout the entire confederation, via a federal order, in 1971. At the canton level, it took even longer to grant women the vote, among other things because women themselves voted against it (in a 1959 refer­endum). Thus, for example, in the Apenzell Canton, the introduction of women’s suffrage did not come about until November 27, 1990 because of a ruling by the Federal Court (Charnley et al. 1998). Moreover, in some cantons voting is still carried out by a raise of hands. Switzerland is, without any doubt, a very special country,^[1153] though it is changing as the result of the pressure exerted upon it by the European Union (Steiner 2001, 137-154).^[1154]

18.1.4 Westphalia's Peace and the Triumph of the Europe of States

Despite the examples of integration offered by the composite monarchies and the Swiss Confederation, in 1648 Europe essentially became a continent made up of independent states beholden to no overarching power. This state of affairs led to a series of military confrontations as Europe’s nations vied for supremacy. Spanish hegemony gave way to French power after the Treaty of the Pyrenees (1659), and Louis XlV’s France was the premier power until the Treaty of Utrecht (1714). During the eighteenth century, the United Kingdom became the preeminent European power, though its loss in the American War of Independence (1783) came as a blow. The French Revolution, nevertheless, shook all of Europe as France stepped to the fore once again though its aggressive imperialism under the Con­vention, the Directory, and, of course, Napoleon.

18.1.5 Europe Between Imperialism and Coordination: 1789

to 1914

European politics were hit by a tidal wave in the form of the French Revolution and the Napoleonic era, whose new ideas, propagated through French imperialism, sent all of Ancien Regime Europe trembling. Napoleon transformed the map of European nations, creating some new states in old Europe, such as the Italian revolutionary Cisalpine and Ligurine Republics (1797), the Parthenopean Republic (1799), the Helvetic Republic (1798-1803), the Batavian Republic (1802-1806) in the Low Countries, in addition to the complete restructuring of Germany through the Final Recess (Reichsdeputationshauptschluss) of 1803 and the creation of the Confederation of the Rhine—Rheinbund (1806-1813).^[1155]

For 25 years, the European balance of power was so heavily altered that Europe’s rulers convened at the Congress of Vienna (1814-1815), where they did their utmost to reestablish the Ancien Regime and restore the Continent’s old borders. Paradoxically, this effort, headed up by Austrian Chancellor Metternich, obliged European rulers to coordinate their efforts to prevent the possibility of revolution. As we have seen, Europe’s leaders, to quash revolutionary activities, resolved to sign alliances and act together, through the Holy Alliance—an effort that some scholars have considered a precedent of European integration (Phillips 2005). For almost 15 years a united Europe was implemented through the Metternich System, a period during which coordination replaced imperialism and the relationships between European nation-states were characterized by their stability (Sofka 2011, 33-80).

Conflicts between European nations flared up again, however, after the 1830 French Revolution. In the middle of the century, from 1853 to 1856, the Crimean War was waged, in which French and British imperial policy clashed with that of the Russian Empire. In 1859, the French and the Sardinian armies defeated the Austrians in Magenta and Solferino, opening up the way for Italian national integration. Then it was time for Bismarck’s Prussia, which defeated Austria at Sadowa (1866) and the French in 1870 (Franco-Prussian War). In this era thanks to colonial expansion the different European nation-states were rich enough to main­tain powerful armies that enabled them to keep or increase their power at the world level through alliances, such as the Dual (1879) and Triple Alliance (1882) between Austria, the German Empire and the Ottoman Empire, versus the “Entente Cordiale” (1904) and the “Triple Entente” (1907) between France, the UK and Russia. This was, as we know, the “Armed Peace”, which led to the apocalyptic First World War.

The major European nation-states did not consider uniting when their power was at its peak.^[1156] As their hegemonic stage came to an abrupt halt in 1918, however, some European leaders began to consider the possibility of a united Europe in which different states would act together instead of against each other.

18.2