COMMENT Gilbert Hagabimana 30 April 2021
Under regional integration process, sovereign states voluntarily combine their efforts in order to create common interests and objectives. At the same time, state sovereignty generally means a state has the capacity to do whatever it wishes or even settling its own rules without external interference. Now, looking at these two aspects, it becomes difficult to understand how these elements, regional integration and state sovereignty, can be conciliated since the former requires a release of a certain amount of sovereignty to the community and the latter a non-external interference. The concern is to know to which extent states should surrender their sovereign rights to the community for a successful regional integration without simultaneously losing their sovereign rights.
This problem was seen for several time in the lives of different regional economic communities. For example, in the European Union, BREXIT was a result of an enthusiastic adventure of the United Kingdom in the European integration process where this country had been seeing European Union as a community which had come to take its sovereignty. Beside BREXIT, nationals of the European Union member states have been challenging the EU treaties before their national constitutional courts, arguing that these treaties were conferring too many comepetences to the European Union. Such cases were raised in Germany, France, Czech Republic, Latvia, Austria, Poland, Hungary. The failure of the Constitution of Europe in 2004 was a clear manifestation of the fear of the member states of losing their sovereignty. In the East African Community (EAC), this problem is materialised by an overconcentration of powers in the hands of the Summit (Committee of the Heads of States) and other bureaucrats who respond directly to the Heads of States. There are these powers which made the summit unhappy of the judgement in Anyang’o Nyong’o case. Indeed, in response to this decision of the Court, the Summit decided to amend the East African Community Treaty in order to include more restrictions on the activities of the Court.
Protecting State Sovereignty at the Cost of Regional Integration
In the end, it can be observed that states are very hesitant to liberate their sovereign rights to the communities they belong to, ignoring therefore, that the integration process cannot be successful if the members of these communities do not accept the limit to their sovereignty. However, this attitude of the states is to be discouraged and does not contribute for the well-being of the partner states themselves and as well as that of the communities they belong to. Indeed, partner states should not fear losing sovereignty because transferring some sovereign rights does not mean a loss of complete sovereignty. This was consistently shown by the Constitutional Courts of the European Union member states. For instance, in its decision on the Lisbon Treaty, the German Constitutional Court indicated that members states remain the master of the treaties; the Union cannot act beyond the powers which were conferred to it under the principle of conferral. In other words, the Union does not have what the German Constitutional Court calls Kompetenz-Kompetenz – the competence to determine its own competence – otherwise it acts ultra-vires. This court went even further and indicated that it has the right to examine whether the Union did go beyond its limits when implementing its projects. This view is also shared by the East African Court of Justice. In Anyang’o Nyong’o case, it indicates as follows:
“While the Treaty upholds the principle of sovereign equality, it must be acknowledged that by the very nature of the objectives they set out to achieve, each Partner State is expected to cede some amount of sovereignty to the Community and its organs albeit in limited areas to enable them play their role”.
Gilbert Hagabimana is a professional lawyer and member of the Burundi Bar Association. He works at the Chair of Public Law II at the University of Bayreuth. His area of interest is in particular the law of regional integration with special focus on the European Union Law and East African Community Law.
