Oh Canada

These are strange times for law and policy commentary. On one hand, there is some new thing to write about every day – almost every hour. On the other hand, most of what is being is written in response to those new things is the same. There is only so many ways of saying things are bad, and they are getting worse.

And so it came as a light relief when the media reported that an opinion poll showed substantial support among Canadians for joining the European Union.

And any comics fan knows the fun to be had with a good What If team-up.

(Source.)

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So I did a post over at Prospect on What If…Canada wanted to join the European Union?

(Click and read here.)

Sadly, we could not commission Marvel cover art, and so we got a stock photo of President Macron and Prime Minister Trudeau instead.

But the sentiment behind the article was the same: What If?

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Pretty soon in putting together the post it became obvious that it would have to be about what is meant by a country being a “European state”.

This was because the formal legal gateway to EU membership – Article 49, the sister provision to the exit provision Article 50, of which you have no doubt heard – is limited to European states.

Of course, this is no absolute barrier: what is done by a treaty can in general be undone by a treaty. If all the parties to a treaty agree to a change then a provision can be amended.

But as Professor Steve Peers – a one-person boon to the public understanding of EU and other international law – avers, the EU treaties generally are framed about the ever closer union of European peoples etc.

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And so the question becomes: what actually is a European state?

Here there are at least two complicating factors.

First, the European Union already extends far beyond any meaningful definition of the continent of Europe. Indeed, it goes as far as the Indian Ocean.

Second, an actual full member state of the European Union – Cyprus – is, according to many geographers, part of West Asia and not Europe.

And if so, if there is an absolute binary that a member state itself (notwithstanding any overseas extensions) has to be part physically part of Europe, it is perhaps difficult to make a categorical argument why Cyprus can be a member, and Canada cannot be.

At least, that is, without advancing an argument that being European is ultimately just a state of mind.

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Another thing that came up when putting together the post was about the curious position of Morocco.

What “everybody knows” – that is anybody who has followed such things – is that Morocco was once turned down for membership of the European Economic Community (the predecessor of the EU) for not being European.

But this story was curiously difficult to pin down with any official documentary evidence – which is curious, given how much sheer documentation the EU does publish.

(At one point it seemed as if the story existed entirely as lore, and not law and policy.)

This is not the place to explore what happened when Morocco made enquiries about joining the EEC – that fascinating story warrants a separate post.

But whatever did happen would not, in any case, bind the EU now as a precedent.

It would come down to politics.

In essence: if both Canada and the EU really wanted to come together, no mere legal formalism would stop them.

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What would be more sensible, however, would be for the sensible liberal members of the EU – that is the current ones minus the illiberal headbangers of Hungary and Slovakia – to join with non-EU members such as Canada, the United Kingdom, Norway, Iceland, and perhaps Greenland and Ukraine – and form a new grouping.

Other non-European states may also like to join in: Mexico and Panama may have common interests.

This grouping could complement and fit with the EU, but not be beholden to the vetos of illiberal EU (and NATO) states.

This grouping may adopt the trappings of a formal identity – with its own acronym and permanent staff – or it may be simply a coalition of states working together.

And this may achieve what the 44% of Canadians in that poll presumably want: a closer connection with those who can counterbalance its erratic southern neighbour, which is currently experiencing a spectacular political and diplomatic breakdown.

Joining (or leaving!) the EU is never to be done lightly: it can (and should) take years to reconfigure a state’s laws and policies so as to align and then fuse with those of the EU.

And that is before a candidate member state has to work out how to deal with the institutional framework of this complex supranational organisation, where the council, the commission, the court of justice, and other bodies can (and will) clash with domestic institutions.

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All this, of course, is merely a thought-experiment.

But such exercises can be useful in separating out the plausible from the implausible, and the compelling from the unnecessary.

Any sensible person will sympathise with the predicament of Canada – and of other countries being bullied by the United States.

But.

What if…

…all other countries now adjusted their affairs so as to eliminate or minimise the power and influence of the United States?

Now, there is a thought-experiment.

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