The Question of External Executive Power
The title István Bibó gave to his academic inaugural address on 16 January 1947 was ‘Separation of Powers, Then and Now’. 1István Bibó, Az államhatalmak elválasztása egykor és most. Bibó István munkái (The Division of State
Powers Formerly and Today. István Bibó’s Works), Centenary Series 1 (Argumentum Kiadó – Bibó
István Szellemi Műhely), 307–332. The text makes frequent use of the term ‘division of powers’. It is not by chance that subsequent literature 2The most thorough analysis of Bibó’s inaugural address known to me was written by Csongor István
Nagy 20 years ago. Csongor István Nagy, A hatalommegosztás és az európai társadalomfejlődés összefüggései,
Gondolatok Bibó István hatalommegosztás-koncepciója kapcsán (The Correlations of the Division of Powers
and European Social Development: Thoughts on István Bibó’s Notion of the Division of Power), in
ELTE ÁJK TDK-dolgozatok, ed. Péter Takács (Budapest: ELTE, 2002), 281–305. often resorts to the alternative phrases of ‘division’ and ‘separation’, as if to suggest that the two overlapping terms essentially go back to the same roots, in both historical heritage and constitutional law. The title of this study does use the term ‘division of power’, though as a starting point we should rather speak of the separation of state powers. It is only then that we can attempt to dissect the concept of ‘division’—the notion that has evolved historically as the token of reining in state power capable of expressing a decisive constitutional and political goal, which is now recognized widely, if variously, in international relations.
So the notion of ‘division’ has a broader meaning than the ‘separation’ of state executive powers. The relationship between the two concepts can be described as a relationship between the ends and the means, given that separation already implies division as an instrument of achieving the actual goal of preventing the excessive concentration of power. That said, the forces counteracting the concentration of power have tools at their disposal other than that of separating branches, and the division of power can be achieved in other areas and by other means as well.
Yet István Bibó moves beyond the narrower topic of his inaugural address to ask some even more fundamental questions relevant to all kinds of inquiry, irrespective of time and space. The first question he asks is whether the subject matter of (political) science consists of ‘describing, categorizing, typifying, systematizing, and understanding phenomena pertaining to state theory’, or of ‘trying to steer the ship of state in the right direction, which the moralists call ethical, the utilitarians expedient, and the evolutionists progressive—in short, the endeavour to fashion a desirable system’. 3Bibó, Az államhatalmak elválasztása egykor és most, 307. As we know full well, Bibó answered this question not simply in his inaugural address but by virtue of his entire oeuvre. In terms of steering the ship of state in the right direction, he clearly chose the path of the moralist. While he had tremendous respect for considerations of expediency, he identified morals as the cornerstone of a sound state, as attested by his life and career. He refers to the ‘progressive’ evolutionists with subtle reservations, sensing that the path of progress itself does not necessarily lead us in the right direction, and if we perceive it as wrong, we had better thwart or at least slow down progress.
Another dilemma Bibó raises is that ‘while the abstractions of political thought invariably stem from a specific social and political situation, our ambition to arrive at general truths makes us set up schemes which turn into dogma the more easily the more neatly they correspond to the situation of the moment, and which, if applied later to a reality of a different structure, will heavily encumber the fulfilment of specific tasks on hand’. 4Bibó, Az államhatalmak elválasztása egykor és most, 316.
As discussed by Bibó, the risks entailed by allowing the precept of the separation of powers to become dogmatic are real and have indeed appeared at various levels of exercising power. This, however, does not in the least affect the truth and endurance of the tenet, nor the desirability of the goal it is intended to serve, namely the restraint on the concentration of power. Essentially the same ideal of permanence is expressed by Bibó’s first thesis about the purpose of science being to set the ship of state on the right track, to promote the establishment of a morally viable system. It is the same, political-moral call to curb power and, as part of that normative vision, to separate branches of power, that has run through the past two millennia, amid widely varied political, social, economic, and—most importantly—intellectual-cultural conditions.
With Plato and Aristotle, ‘the theory of state in Antiquity elaborated principles that neither medieval nor modern thought was able to transcend’, 5Bibó, Az államhatalmak elválasztása egykor és most, 308. despite the fact that the classics did not have the slightest opportunity, even in the privileged position of Aristotle, to enforce these principles in the actual life of the state. Western Christian theorists of the state, starting with Augustine, also sought to guide power onto the right track, albeit from a different vantage point. Their agenda sprang from the notion that power was a consequence of the Fall. The gravity of the Fall had to be at least mitigated by reining in power, thereby conferring a kind of moral justification upon it, even if that vindication may lead to hypocrisy. Saint Thomas Aquinas thought there was no need for such justification because for him terrestrial power was nothing but the concretion of divine laws. The powers on Earth had no choice but to bow to the moral judgement of God (and of the Church, his vicar on Earth), because ‘the powers of man are hierarchically subordinated to celestial power’. 6Bibó, Az államhatalmak elválasztása egykor és most, 312.
A new, decisive turn came with Reformation and the sweeping changes that affected Western society across the board. This society ‘preserved and elaborated on the thousand-year-old tradition of moralizing and humanizing power, the legacy of reorganizing it into a set of functions. This period saw the emergence of the modern principle of the separation of powers. This meant something more and different than the Aristotelian attempt to classify the major functions of the state, as it carried a political-moral thought: the idea that the exercise of power must be coerced, by breaking up and isolating the internal organs sustaining sovereignty and the concentration of power, to subject itself to judgement on its merits’. 7Bibó, Az államhatalmak elválasztása egykor és most, 314.
This marks the intersection of separation as a means of restraining the power of the state with the bourgeois ideals of liberty and dignity. These new ideals filled the political-moral thought inherent in the division of power with fresh energy and substance. It was this intersection that, for John Locke, connected human liberty, dignity, and their unconditional safeguards by law on the one hand and, on the other hand, the restriction of power by subjecting it to laws—specifically, by separating legislative power from both internal and external executive power.
Bibó points out that Locke’s premise may have rested on a modern interpretation of Aristotle’s rule of law, but while Aristotle saw it as an issue of expediency, Locke conceives of rule of law as an issue of human dignity. 8Bibó, Az államhatalmak elválasztása egykor és most, 315. Bibó’s observation is borne out by Locke’s still valid and incontrovertible argument: if the purpose of human society is to enable its members to enjoy their property in peace and security, then the law fashioned by this society must be the quintessential means to achieve this goal. The enactment of laws presupposes a legislative power which itself is subordinated to the laws of nature as the embodiment of Divine Will. Yet this legislative power must be subject to the public good, the ban on making arbitrary, isolated decisions, and to the requirement of not providing for the rights of man except by means of promulgated and non-volatile statutes. In Locke’s own words, ‘The legislative or supreme authority […] is bound to dispense justice and decide the rights of the subject by promulgated standing laws’. 9John Locke, Two Treatises of Government. The Works of John Locke. A New Edition Corrected in Ten
Volumes, Vol. V (London, Glasgow, Dublin: 1823), 164. (‘[…] the fundamental law of Nature being the preservation of mankind, no human sanction can be good or valid against it’). 10Locke, Two Treatises of Government, 163. Yet no supreme legislature has the power to deprive anyone of his property without the consent of the owner himself. The raison d’être of law is not to abolish or curb freedom. Where there is no law, there can be no freedom. ‘But because the laws […] need a perpetual execution, or an attendance thereunto; therefore it is necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.’ 11Locke, Two Treatises of Government, 168.
Thus Locke deduces the separation of legislative and executive powers from the essence of human society and the fundamental function of law. The preservation of human society is contingent upon freedom, dignity, and property. None of these preconditions can be guaranteed without law, which in turn can only be created by legislative power. By contrast, executive power is necessary mainly for practical reasons, and for these very reasons, it is distinct from legislative power.
Locke attempts to preserve Aristotle’s ‘trias politica’ by supplanting the administration of justice, the third branch, by executive power, which he calls federal in nature. However, a closer study of Locke’s text favours the interpretation that he perceives the main line of demarcation as lying between legislative and executive power. Describing the distinct nature of these two branches and the ensuing need to separate them, Locke uses arguments and criteria valid to this day to demonstrate the differences between internal and external executive power, as well as the tight correlation between the two.
There is, then, ‘another power’ active in a political community. The members of the community are individuals, and relations among them are governed by their laws, but they constitute a single body vis-à-vis ‘the rest of mankind’. As such, the community settles disputes with those outside of it, and acts as a body in remedying wrongs perpetrated against any one of its members. ‘In the state of Nature’, the community forms an undivided body in its interactions with persons and states external to it. This, then, is the executive power, which, in its external relations, decides matters of war and peace, joins alliances, and makes covenants with persons and communities outside the commonwealth. As such, it can rightly be called a federal power, ‘if anyone pleases’. Locke adds that ‘So the thing be understood, I am indifferent to the name’. 12Locke, Two Treatises of Government, 168.
Thus, the two powers—one legislative, the other executive—are distinct. Significantly, Locke does not use the word separated, but the phrase distinct in themselves, considering that one implements the internal statutes of society (municipal law of society) while the other attends to the security and interests of the public. Another aspect that differentiates this federal power from (internal) executive power is the fact that the former, being less subject to precedents and positive law, must rely to a greater degree on the prudence and wisdom of those who exercise this power to the best of their ability on behalf of the community. So executive power and federal power are distinct in themselves, even though ‘They are hardly to be separated and placed at the same time in the hands of distinct persons’. 13Locke, Two Treatises of Government, 169. Should different individuals exercise executive and federal power, these persons could adopt conflicting measures, leading to disorder and destruction.
Consequently, the preservation of the commonwealth requires but a single supreme power, the legislative one, to which all other forms of power must be subordinated. At once, this legislative power is simply fiduciary in essence, because it leaves supreme power itself in the hands of the people, which remains free to remove or replace the legislature if it considers that the body has come into conflict with the trust placed in it.
Unlike his distant forerunner Aristotle and Montesquieu after him, Locke does not distinguish between three branches of power, but rather two. It is the executive power, subordinated to legislation, divided into an internal and an external component, which he describes as ‘distinct in themselves’ without regarding them as ‘separated’.
The purest structure of separation is restored by Montesquieu, who uses examples from the English constitution to demonstrate the triple formula of separating branches of power, and reinstates judicial power in place of Locke’s federal power which, as Bibó points out, is useless in combatting the concentration of power. 14Bibó, Az államhatalmak elválasztása egykor és most, 317. The point of separating branches of power is not ‘to categorize the function of the state but to divide discretionary power to prevent its concentration within any one of its organs’. Bibó argues that the sinking into oblivion of this fundamental idea, coupled with the ‘increasingly dogmatic concept of the separation of powers’ gave rise to a great number of pseudo-problems and pseudo-solutions. 15Bibó, Az államhatalmak elválasztása egykor és most, 318. Following a discussion of the difficulties arising from this dogmatic view, Bibó feels certain that the first thing to survey and counteract is the perils of the concentration of power. He identifies the main threats as the encroachment of the state on the economy, the demoralization of intellectual life and culture, 16‘On the one hand, this means that the state seeks to influence academics and scientists, primarily
those pursuing research in the hard sciences due to their important role. On the other hand, it means
that statements on matters of the state and politics expressed by social scientists and natural scientists
(often bigoted and naive, respectively) are vested with an authority that has serious consequences for the
economy, military strategy, and overall politics.’ Bibó, Az államhatalmak elválasztása egykor és most, 330. and the corruption of bureaucracy (‘what we would call technocracy today’). Focusing on the task of averting power concentration enables us ‘to retrieve the principle of the separation of powers from the dusty closet to which it has been relegated by political intentions and pedantic academism, and to situate it within the 1500-year tradition of European social development which juxtaposes to the exercise of power the reasonable, humane, and just purpose of that exercise, and does not recognize any self-legitimation of power except with reference to this sole purpose’. 17Bibó, Az államhatalmak elválasztása egykor és most, 328.
Returning to Locke’s thesis on external executive power—alternatively called federal power, ‘if anyone pleases’—we are struck by the eerie timeliness of the way Locke characterizes that external power. As we have seen, this ‘third’ branch in Locke is deemed useless by Bibó for the purposes of curbing the concentration of power. What Locke does here is shed light on a function of the state, which became a definitive, universal principle not only of state theory but of the entire system of international relations, first and foremost of international law. Comprised of individuals, the community appears as a homogeneous body to the outside world, which represents the entire community and its specific members, enforces their claims of reparation against external entities, makes decisions in matters of peace and war—in short, it becomes the subject of international law. (While replacing federal power with the judiciary as the third branch, Montesquieu also begins by listing the same discretionary functions as proper to executive power, the second branch.) 18‘Par la seconde, il fait la paix ou la guerre, envoie ou reçoit des ambassades, établit la sûreté,
prévient les invasions.’ Montesquieu, L’Esprit des lois, extraits (Paris: Classiques Larousse, Nouvelle
Édition, 1934), 47.According to Locke, federal power, whether exercised well or badly, is of paramount importance for the commonwealth, because this branch cannot fall back on precedents and positive law to the extent that internal executive power can. This is precisely why federal power must be exercised with special caution and prudence. Since federal power must be held by the same individuals, the two types of executive power (while ‘distinct in themselves’ by nature) must obey the same standards, since both need the ‘force of society’ to act in unison on behalf of the commonwealth. 19Locke, Two Treatises of Government, 169.
No one since Locke has articulated so eloquently the indispensable need for the close coordination and uniformity of domestic and foreign policy, as we would say today, or the arguments for that need. The lack of harmony between the two will cause disarray and chaos. It obviously follows that, if those vested with federal power are required to act with special prudence, and further if external and internal executive power must be exercised by the same persons, then the same level of prudence and wisdom will be demanded of those vested with domestic executive power. The harmony between the two sides of executive power is of course supposed to be guaranteed by the principle of subjecting executive power to the legislature. (‘There can be but one supreme power, which is the legislative […].’) 20Locke, Two Treatises of Government, 169.
The theoretical purity and soundness of Locke’s thesis and arguments cannot be doubted. The difficulties begin when external executive power, supposedly subservient to the legislature, enters the arena of international relations, adopts measures pertaining to war and peace, and enters into covenants—in short, when it begins to exercise its rights arising from the status of the commonwealth it represents as a legal subject of international law.
The relationship between the three branches of power (legislative, executive, judicial) varies constantly over history as a function of social and political conditions, and can never attain perfect equilibrium even in constitutional conditions, due to the perils mentioned above. The exercise of these powers in foreign relations obeys fundamentally different criteria, specifically those of international legal norms, which decisively transform the rapport and imperfect balance between the branches, thereby affecting the entire issue of the division of power. 21For a detailed discussion, see Tamás Molnár, ‘A szuverenitást érő kihívások hatása a nemzetközi
jog és a belső jog viszonyára, különös tekintettel a belső jogok „nemzetköziesedésének” a
hatalommegosztásra gyakorolt hatására’ (Challenges to Sovereignty and Their Power to Shape
the Relationship by International and Domestic Law, with Special Regard for the Influence of
Rapidly ‘Internationalized’ Domestic Law on the Division between Branches of Power), in Az állam
szuverenitása, Eszmény és/vagy valóság (The Sovereignty of the State: Ideal and/or Reality), ed. Péter
Takács (Budapest–Győr: Gondolat, MTA TK JTI – SZE DFK, 2015), 145–161. In fact, this has always been the case, which is why Locke correctly sensed the need to give a distinct name to external executive power—a name Bibó deemed utterly unhelpful for achieving the theoretical political goal of thwarting the concentration of power.
The emerging notion of sovereignty, combined with the recognition of a territorially specified Westphalian state and the increasing influence of this model, fashioned a new kind of international space for the states in its compass, the constitutional order and sovereign internal power of which had to be reconciled with the network of international relations, along with the restrictions, obligations, and opportunities arising from that system. This has become even more of an issue over the past few decades, marked by globalization, fragmentation, regionalization, and localization. What used to be predominantly bilateral or at least narrower international regulations are being superseded by multilateral, then universal rules, while various forms of regional integration are also on the rise. Combined, these changes create a multi-tiered regulatory system constantly in flux, which increasingly displays the symptoms of a heterarchical spatial structure instead of pure hierarchy.
In some cases, the European Union, like any regionally integrated legal entity, cites its own autonomy to justify its refusal to apply universal international norms. In so doing, ‘in return’, as it were, it has no choice but to tolerate (to varying degrees of success) the resolve of some of its members not to recognize the primacy of Union law in certain matters claimed to involve their constitutional identity, but to reserve the right to define at their own discretion the scope of powers they have relinquished to the common institutions of the Union, and consequently not to recognize legal acts they see as being ultra vires, that is, falling outside that scope. 22János Martonyi, ‘Még egyszer a nemzetközi gazdasági kapcsolatok jogáról – A beruházásvédelem
ürügyén’ (Further Thoughts on the Law of International Economic Relations: The Case of Protecting
Investment Projects), Nemzetközi Magánjogi Évkönyv (International Private Law Yearbook),
(HVGOrac – Mádl Ferenc Intézet, 2022), 22, footnotes 28 and 29.
23 Csongor István Nagy, ‘There Is Nothing in a Caterpillar That Tel The entry and muscling influence of non-governmental entities aggravates the difficulty of isolating various tiers of regulation which tend increasingly to overlap, and particularly accelerates the process whereby the classical distinctions between international law and domestic law are being blurred. Nor has the relationship between various regulatory fields under universal international law been free of conflict. Here, too, values and interests have been pitted against one another—suffice it to mention the so-called ‘non trade values’ in international trade law. 23Csongor István Nagy, ‘There Is Nothing in a Caterpillar That Tells You It Is Going to Be a
Butterfly – Proposal for a Reconceptualization of International Investment Protection Law’,
Georgetown Journal of International Law (2020), 897–917. All of these changes, which I cannot analyse in detail here due to lack of space, have created a new field in which the contest between international law and the constitutional order of individual states is being played out. They have foregrounded questions about the concept and legal-political role of sovereignty, and have clearly left their impact on the theory and practice of the separation (not to mention the division) of power.
As for the notion of sovereignty, László Blutman has shown the extent of ‘total chaos in Hungarian professional literature regarding the true essence of sovereignty’, owing in part to the fact that ‘sovereignty is an abstract, construed concept’. 24László Blutman, ‘Milyen feltételekkel beszélhetünk értelmesen a szuverenitásról? Egy metaelmélet
kiindulópontjai’ (How to Talk Intelligently about Sovereignty: The Premises of a Metatheory), in
Az állam szuverenitása, footnote 21. It follows that sovereignty, as an abstract category of law, lays claim to completeness and perfection and is not amenable to restrictive interpretation. In its perfection, the idea recognizes no limits, because the realm of ideas must be pure and unambiguous. 25János Martonyi, ‘Szuverenitás a nemzetközi kapcsolatokban’ (Sovereignty in International
Relations), Magyar Jog, 11 (2016), and Nyitás és identitás – geopolitika, világkereskedelem, Európa
(Openness and Identity: On Geopolitics, Global Trade and Europe) (Szeged: Pólay Elemér
Alapítvány, 2018), 44–54. Yet reality can never live up to the purity and perfection of ideas and legal concepts. The abstract legal notion of sovereignty, which is central to international relations and is built upon such indispensable premises as the self-determination and territorial integrity of nation states, the inviolability of national borders, the ban on intervention in internal affairs, and the sovereign equality among these states, inevitably comes up against stark political and economic reality and the sociological context in which it seeks not only to survive but also to succeed. The most fascinating dilemma concerning sovereignty lies precisely in the fact that, conceptually and essentially, it should not be subject to restrictions, but in the real world it can never triumph without impediments. This duality renders the concept elastic, giving it both the flexibility to endure real-world barriers and a source of inherent resilience, which aids the concept itself and the entities subscribing to it in the effort to recapture territories occupied by encroaching reality. A sovereign entity is adaptable and impervious at the same time. It will retreat under pressure, but will defy that pressure and aim to shatter all barriers if the opportunity arises. It is this conflict between notional purity and manifestation in reality that underpins the theoretical and practical debates, tensions, and political skirmishes surrounding the application of the concept in international relations, and it is precisely these debates and conflicts that call for relatively permanent principles and norms of international law to resolve such dilemmas and tensions in the first place.
It is another matter that these international legal norms have been unable through the course of history, and remain unable today, to prevent the most grievous violations, such as war or war crimes on a massive scale. Now, with multi-tier governance on the rise, the schism between concept and reality continues to deepen. Peculiarly, this tendency is amplified by the increasing pressure among nation states to cooperate. Sovereign entities are being forced to follow this trend without being able to overcome their inherent urge to preserve their autonomy and even expand their power.
Apart from its notional freedom from restrictions, it is a quintessential component of sovereignty as a legal rather than a casual term that it is proper and exclusive to a state. While sovereignty is an unconditional prerequisite for the existence of a state, within the meaning of constitutional and international law it is something that can only belong to the state itself. No single organization or agency of the state can be sovereign, no matter the level of the economic and political cooperation or even integration they may oversee, until the state confers its entire sovereignty to an integrated organization, including the waiver of its right to voluntarily secede from it. Because it is not a state, the EU cannot and does not possess sovereignty, although it may have autonomy. The question of how to define the nature and scope of this autonomy in both internal and external space (i.e., in terms of its relations to its member states and to other states external to it) is what constitutes the chief theoretical and practical dilemma the project of European integration faces today.
Unlike the separation and division between branches of power, sovereignty in my opinion is not subject to separation or division because as a concept it has an absolute meaning that knows no boundaries. To put it differently, sovereignty subject to restrictions or division does not exist, or the thing we call by that name is not sovereignty in the original sense of the term. We may hope to have moved beyond Brezhnev’s dictum of restricted sovereignty, but we are still under the spell of what legal literature widely recognizes and investigates as ‘shared sovereignty’. Of course, this theory most often comes up in the context of European integration. It is for a reason that it has in recent years occupied the forefront of debates about the legal nature, political ambitions, and future of the EU.
Without entering into the details of these political and legal controversies, let me say that as I see it, the member states do not allow restrictions to be placed on their sovereignty as such by, or ‘share’ it with, the institutions of the EU, so much as they ‘pitch in’ some of the rights arising from their sovereignty, to be exercised by those institutions on behalf of the member states subject to the terms of international agreements executed between them. This follows from the affirmative and prohibitive provisions of the Treaties of the European Union, namely Articles 3 (6), 4 (1), and 5 (1) and (2). The idea of a member state’s sovereignty itself being subject to ‘sharing’ or restriction is contradicted by the option to withdraw from the Union, provided for by the Treaty of Lisbon, which can only be based on the premise that a state cannot assign or restrict its overall sovereignty, the hard core of its being as a state, although there can be no objection to its exercising some of its powers jointly, through the institutions of the Union. Therefore, the debates about a member state’s constitutional self-identity, the scope of powers transferred by it, any alleged excess by EU institutions, the consequences of their overstepping these powers, or any other restriction on the pre-eminence of Union law, be it general or case by case, do not really involve, defend, or curtail the sovereignty of that member state but simply seek a more precise definition of the sphere in terms of both quality (constitutional identity) and quantity (ultra vires) that has transferred the powers in question.
As for the definition of this scope, no solution can be perfect. The European Court of Justice has no choice but to vest itself with the exclusive right to define the scope of power assignment, in an effort to prevent a given power of discretion from being regarded as assigned in 26 distinct areas. In this way, the institutions of the Union wield the power to arbitrate disputes to which they themselves are a party, in defiance of the principle of nemo iudicis in sua causa iudex non potest essere.
Looking at how the mandate to separate and divide branches of power is upheld internationally, the issue we must confront is not that of the division or restriction of sovereignty, but how and to what extent the powers arising from their sovereignty are being shared by the member states. It would be all too easy if it were just the matter of how to share with an international community the external executive power, which Locke regarded as the third (actually a part of the second) branch of power.
As the case may be, this external executive power has taken upon itself to act in matters pertaining to internal jurisdiction, abrogating the right to undertake international obligations, overstepping the sphere of international relations in the narrow sense of the term, and interfering with domestic regulations. We have seen this particularly clearly with some integration treaties transgressing the traditional regulatory boundaries of international agreements. (It is for a reason Locke called external executive power ‘federal’, as if sensing the future threat of states gradually succumbing to relations of the integrative type by means of covenants.) The resultant blurring of the borderline between external and internal executive powers (supposedly both ‘distinct in themselves’) certainly raises problems in terms of constitutional and international law. More crucially, external executive power may, and sometimes does, attempt to extend its grasp onto and to the detriment of legislative power, posing an international threat to the Lockean principle that ‘there can be but one supreme power’.
The conflict between legislative and external executive power in the international arena, and the repercussions of that conflict in the internal, constitutional order of a state, have been exemplified by several well-known incidents over the past decades. For instance, the General Agreement on Tariffs and Trade (GATT) was originally conceived as part of an international treaty encompassing a wide range of economic relations, but the Congress of the United States refused to ratify it despite the repeated attempts of the administration, essentially thwarting the international treaty within its powers under the American Constitution. The solution turned out to be for the parties to agree, in 1947, to a specific application of the Protocol of Provisional Application of the General Agreement on Tariffs and Trade, which the American administration claimed the authority to sign as the incumbent executive power. This saw the entry into force of an agreement on the provisional application of the GATT which, peculiarly without the involvement of legislative powers, would prove to be one of the most enduring regulations ever adopted by an international community. (‘Ce n’est que le provisoire qui dure.’) This provisional agreement was replaced only half a century later, with substance unchanged from the original GATT provisions but with a significantly reinforced and expanded scope of application, by a system of ratified international treaties created within the ambit of the World Trade Organization. The multilateral trade regulations adopted in 1995 did confer upon the signatory legislatures the rank and role they are entitled to, but conflicts in the field between executive and legislative power remain very much the order of the day in the United States. Even though the dilemma is far from being unique to America, it is hardly a coincidence that the practical implications of this conflict present themselves in the constitutional system that has shown the most consistency in implementing Montesquieu’s classic theory on the separation of powers.
One could go on enumerating examples for the onset of disequilibrium between the branches of power on the international stage. One particularly problematic subset of global trade relations consists of international treaties regulating foreign investment and investment protection, which have come into the focus of attention in recent decades and generated escalating legal and political debate. 26See endnote 22. The disputes do not primarily concern points of legal theory so much as they are fuelled by powerful political and economic interests and various ideologies erected upon them. The rivalry between branches of power is but one of the areas where these conflicts manifest themselves. Not surprisingly, the most sensitive chapter of the trade agreement contemplated between the United States and the EU dealt with issues of investment protection, where ideologically motivated considerations were the most readily apparent. Another target of the ‘clash of ideologies’ 27János Martonyi, ‘Clash of Ideologies: Is Transatlantic Trade the Right Battlefield?’, in Bándi,
Darák, and Debisso, eds, Speeches and Presentations from the XXVII FIDE Congress. Congress
Proceedings Vol. 4 (Budapest: Wolters Kluwer, 2016). was the idea that the agreement itself would have provided for a mechanism conducted by a mixed committee, though admittedly one designed to proceed with great caution. Many feared that this solution would eventually enable the external executive powers of governments to present their legislatures with a fait accompli, thereby circumventing and enfeebling local legislative power.
As we have seen, the international playing field has jeopardized the vindication of Locke’s key dictum that ‘there can be but one single power, which is the legislative’. Further questions are being raised by the imbalance of the branches of power in the administration of justice. Judicial power is undergoing significant transformation internationally and in individual states, partly as a consequence of the gradual dissolution of traditional boundaries that have hitherto demarcated international law from national laws. Each of these two domains is making inroads into the other, arrogating to itself territories of jurisdiction. The process can be described as being simultaneously marked by the ‘internationalization’ of national law and the ‘nationalization’ of international law. 28Molnár, ‘A szuverenitást érő kihívások hatása’, 156–161. On the one hand, international judicial power may chip away at or challenge the supremacy of a national judiciary. On the other hand, a national judiciary may mount attempts to go around the same nation’s legislature citing international norms.
The most problematic and at once most fascinating application of the separation and division of power is in the area of European integration. The topic is so rich that it would warrant a separate study dedicated to it. Here, I confine myself to making a few rather general observations on the subject.
Because the EU is not a state, it cannot be expected to conform to the conventional requirements of separating powers, to which individual states may well be subject. Furthermore, the EU is not just another international organization, and therefore the premises of the separation of powers in the international field are not applicable to the way its institutions relate to one another. As we have seen, the nature and precise scope of powers assigned by member states to the EU institutions constitute an issue of paramount importance for the future of integration, and as such, they rightly occupy the centre stage of political and legal debate. Indeed, the very openness and disputability of this question brings further problems and complications to any ‘division of power’ among the institutions of the Union. Ultimately, the restrictions placed by constitutional identity on the common exercise of powers delegated to the institutions, the limitation of the scope of those powers by the ultra vires principle, and the distribution of these common powers among the institutions, have formed the crux of debate over the legal nature of integration from the start, and can be expected to inform that debate for the foreseeable future. So while the EU cannot be regarded either as a state or an international organization within the conventional meaning of the word, even the most rigorously argued theory on the grounds of its sui generis quality fails to provide an answer to the numerous questions about its inconclusive legal essence. Of course, none of this should be construed as waiving the liability of researchers to investigate the relationship between the institutions of the EU from the point of view of the classic division of powers (although I certainly cannot undertake such a scrutiny within the scope of this study).
The actual exercise and division of powers between the EU institutions are constantly changing, thwarting the equilibrium that the fundamental Treaties intended to create among them. These changes are caused in part by shifting external economic and political conditions, and in part by administrative, institutional, and personnel factors. Of these, institutional interests have proved particularly aggressive in the past few decades, as the institutions of the EU spare no effort in their drive to augment and expand their powers and influence. The good cause of respecting and reaffirming the original goal of a sound balance while adapting it to the changing circumstances with sufficient reason and prudence may benefit from our remembering the difficulties pointed out by István Bibó concerning the separation of powers.
‘The other problem, which did not so much encumber as it hijacked the European application of Montesquieu’s principle of the separation of powers, was the massive pressure exerted by the bureaucracy of Europe.’ This pressure ‘enabled public administration, the modern organization of power concentration, to escape controls by co-opting and exploiting to its own benefit the principle of separation, itself conceived as a means of combating the concentration of power in the first place’. 29Bibó, Az államhatalmak elválasztása egykor és most, 321–322. (Granted that administrative justice, ‘sneaked in through the back door’, as it were, tends to mitigate this concentration.) Bibó goes further by drawing attention to serious problems with the functioning of legislative bodies. ‘Even in professional matters, in which the large bodies of elected representatives were utterly incompetent, the legislature reserved the right of final decision, and especially of the final, non-appealable amendment. For all intents and purposes, this meant that the bills, drafted by professional bodies to the most rigorous and most thorough European professional standards, often ended up at the mercy of petty power games and politically motivated revisions, which then served abundant examples with which to illustrate the latter-day prevalence of dilettantism.’ 30Bibó, Az államhatalmak elválasztása egykor és most, 321–322.
No, the European Commission is not a government any more than the European Parliament can be regarded as a traditional legislature capable of being fitted into the tripartite scheme of divided branches of power. Be that as it may, it is worth our while to heed Bibó’s universally valid pronouncements on the subject.
The separation of state power into branches has, not least owing to Bibó, become a huge topic, wonderful in its sheer scope, that remains open to debate for both theory and practice. Indeed, the admonishment by which Bibó concludes his argument is to this day applicable to the whole subject and beyond, irrespectively of the age and place we happen to live in: ‘What we should be interested in is not the abstract question of how to categorize the manifestations of state power, but of how the principle of separating those powers attains eternal currency through the ever new problems we encounter. This interest of ours is rooted in the most fertile European thought on the life of the state, which aims to ennoble and sublimate state power into the moral obligation of public service.’ 31Bibó, Az államhatalmak elválasztása egykor és most, 322.
Translated by Péter Balikó Lengyel
- 1István Bibó, Az államhatalmak elválasztása egykor és most. Bibó István munkái (The Division of State
Powers Formerly and Today. István Bibó’s Works), Centenary Series 1 (Argumentum Kiadó – Bibó
István Szellemi Műhely), 307–332. - 2The most thorough analysis of Bibó’s inaugural address known to me was written by Csongor István
Nagy 20 years ago. Csongor István Nagy, A hatalommegosztás és az európai társadalomfejlődés összefüggései,
Gondolatok Bibó István hatalommegosztás-koncepciója kapcsán (The Correlations of the Division of Powers
and European Social Development: Thoughts on István Bibó’s Notion of the Division of Power), in
ELTE ÁJK TDK-dolgozatok, ed. Péter Takács (Budapest: ELTE, 2002), 281–305. - 3Bibó, Az államhatalmak elválasztása egykor és most, 307.
- 4Bibó, Az államhatalmak elválasztása egykor és most, 316.
- 5Bibó, Az államhatalmak elválasztása egykor és most, 308.
- 6Bibó, Az államhatalmak elválasztása egykor és most, 312.
- 7Bibó, Az államhatalmak elválasztása egykor és most, 314.
- 8Bibó, Az államhatalmak elválasztása egykor és most, 315.
- 9John Locke, Two Treatises of Government. The Works of John Locke. A New Edition Corrected in Ten
Volumes, Vol. V (London, Glasgow, Dublin: 1823), 164. - 10Locke, Two Treatises of Government, 163.
- 11Locke, Two Treatises of Government, 168.
- 12Locke, Two Treatises of Government, 168.
- 13Locke, Two Treatises of Government, 169.
- 14Bibó, Az államhatalmak elválasztása egykor és most, 317.
- 15Bibó, Az államhatalmak elválasztása egykor és most, 318.
- 16‘On the one hand, this means that the state seeks to influence academics and scientists, primarily
those pursuing research in the hard sciences due to their important role. On the other hand, it means
that statements on matters of the state and politics expressed by social scientists and natural scientists
(often bigoted and naive, respectively) are vested with an authority that has serious consequences for the
economy, military strategy, and overall politics.’ Bibó, Az államhatalmak elválasztása egykor és most, 330. - 17Bibó, Az államhatalmak elválasztása egykor és most, 328.
- 18‘Par la seconde, il fait la paix ou la guerre, envoie ou reçoit des ambassades, établit la sûreté,
prévient les invasions.’ Montesquieu, L’Esprit des lois, extraits (Paris: Classiques Larousse, Nouvelle
Édition, 1934), 47. - 19Locke, Two Treatises of Government, 169.
- 20Locke, Two Treatises of Government, 169.
- 21For a detailed discussion, see Tamás Molnár, ‘A szuverenitást érő kihívások hatása a nemzetközi
jog és a belső jog viszonyára, különös tekintettel a belső jogok „nemzetköziesedésének” a
hatalommegosztásra gyakorolt hatására’ (Challenges to Sovereignty and Their Power to Shape
the Relationship by International and Domestic Law, with Special Regard for the Influence of
Rapidly ‘Internationalized’ Domestic Law on the Division between Branches of Power), in Az állam
szuverenitása, Eszmény és/vagy valóság (The Sovereignty of the State: Ideal and/or Reality), ed. Péter
Takács (Budapest–Győr: Gondolat, MTA TK JTI – SZE DFK, 2015), 145–161. - 22János Martonyi, ‘Még egyszer a nemzetközi gazdasági kapcsolatok jogáról – A beruházásvédelem
ürügyén’ (Further Thoughts on the Law of International Economic Relations: The Case of Protecting
Investment Projects), Nemzetközi Magánjogi Évkönyv (International Private Law Yearbook),
(HVGOrac – Mádl Ferenc Intézet, 2022), 22, footnotes 28 and 29.
23 Csongor István Nagy, ‘There Is Nothing in a Caterpillar That Tel - 23Csongor István Nagy, ‘There Is Nothing in a Caterpillar That Tells You It Is Going to Be a
Butterfly – Proposal for a Reconceptualization of International Investment Protection Law’,
Georgetown Journal of International Law (2020), 897–917. - 24László Blutman, ‘Milyen feltételekkel beszélhetünk értelmesen a szuverenitásról? Egy metaelmélet
kiindulópontjai’ (How to Talk Intelligently about Sovereignty: The Premises of a Metatheory), in
Az állam szuverenitása, footnote 21. - 25János Martonyi, ‘Szuverenitás a nemzetközi kapcsolatokban’ (Sovereignty in International
Relations), Magyar Jog, 11 (2016), and Nyitás és identitás – geopolitika, világkereskedelem, Európa
(Openness and Identity: On Geopolitics, Global Trade and Europe) (Szeged: Pólay Elemér
Alapítvány, 2018), 44–54. - 26See endnote 22.
- 27János Martonyi, ‘Clash of Ideologies: Is Transatlantic Trade the Right Battlefield?’, in Bándi,
Darák, and Debisso, eds, Speeches and Presentations from the XXVII FIDE Congress. Congress
Proceedings Vol. 4 (Budapest: Wolters Kluwer, 2016). - 28Molnár, ‘A szuverenitást érő kihívások hatása’, 156–161.
- 29Bibó, Az államhatalmak elválasztása egykor és most, 321–322.
- 30Bibó, Az államhatalmak elválasztása egykor és most, 321–322.
- 31Bibó, Az államhatalmak elválasztása egykor és most, 322.