From the European Defense Community to the Western European Union: supranationality becalmed and the ECSC in peril

5On 30 August 1954 the French National Assembly refused to ratify the treaty establishing a European Defense Community (EDC) and thereby rejected the associated project of a European political community. In so doing the National Assembly brutally ended a euphoric period in European history, during which it had been possible to believe that a federal United States of Europe was an imminent reality. Out of this euphoric period, which had seen the flowering of a multitude of plans for supranational organizations conceived on the model of the Schuman Plan, [10] only the ECSC had emerged in concrete form, and even the ECSC “deprived of the political outcomes on which its creators had counted, now looked like little more than a technical body charged with regulating the commercial exchange of coal and steel in continental Europe”. [11]

6This fatal blow to the supranational project fell on 23 October 1954 with the signature of the Paris agreements: in the face of the failure of the EDC, with its goal of integrating West Germany into the defensive strategy of the western powers, France, Britain, Belgium, the Netherlands and Luxemburg revived the Treaty of Brussels, which had been signed on 17 March 1948, [12] and added to it Italy and West Germany. In so doing they created the Western European Union (WEU). The WEU was an international organization focused on inter-governmental cooperation and contained no element of supranationality. Quickly, a number of commentators began to announce a new era in the process of European construction, finally integrating Great Britain and “heralding a return to political and diplomatic concepts that are the product of the evolution of international relations since the two World Wars and that are based on the maintenance of the greatest possible measure of sovereignty for individual states”. [13] The WEU therefore appeared to be a credible alternative to the supranational Europe of Jean Monnet and, “it is now, around this alternative, that we will be obliged to build Europe”. [14] It was not, therefore, the construction of greater European unity that was at stake in the middle of the 1950s, but rather the question of supranationality, and as a result, the future of the ECSC. Moreover, this view of the situation was broadly shared within institutions. Jean Monnet, then the President of the High Authority of the ECSC, announced on 9 November 1954 that he would not seek a new mandate in the February of the following year in order to be free to lead a movement, outside the European institutional context, that would campaign in favor of a United States of Europe. It was in the following terms that Giuseppe Pella, president of the Common Assembly of the ECSC, phrased his inaugural speech on 29 November 1954:

7

“The political events that have unfolded on the international scene since our last meeting in May, and which are still going on, have caused a good deal of uncertainty and difficulties, not only with regard to the progress of the European idea, but also in relation to the results achieved so far and the future development of our community itself. It is as though a heavy, dark curtain has fallen across our horizon, thereby rendering it dark and obscure.” [15]

8And indeed, the shift of the focus of European interest from the ECSC to the WEU not only damaged the functioning of the coal and steel community itself, but also compromised the future of the more political European project which was its goal. On the one hand, the rejection of the principle of the transfer of national sovereign rights to supranational institutions threw into doubt the feasibility of a functioning common market which was limited to the exchange of coal and steel by putting at risk the eventual extension of such a market to other economic sectors. On the other hand, this shift of the center of European political gravity promised, in the short term, to obstruct the proper functioning of the ECSC itself.

9

“The governments of the six countries in the ‘pool’ will be far less prepared to make concessions to the High Authority as soon as the latter no longer seems to carry the hopes of all Europe. In consequence the establishment of a Common Market will become considerably more difficult and the anticipated results of the Schuman Plan will recede into a more distant future.” [16]

10This was likewise the view of Pierre Evrard, who analyzed the position of the ECSC in the fall of 1954 in an article for L’Observateur, evocatively titled: “The death knell of the coal and steel community”. [17] In concrete terms, a majority of European MPs and bureaucrats of the High Authority feared that the new political situation would cause two negative consequences: that their Community would lose its political quality and would cease to operate as the vanguard of wider European construction; [18] and that the balance of power within the authority, between member states on one side and common institutions, created by the Treaty of Paris, on the other, would be upset. The idea of this balance of power had been articulated through the idea of the “delegation of powers”, the “transfer of authority” or the “surrender of sovereignty” in favor of the common institutions, whose emblem was supranationality. [19]

11The political crisis of late 1954 therefore seemed to threaten both the identity and the role of the ECSC as a European organization. To the defenders of supranationality, the threat seemed all the graver given that the ECSC was just two years old. [20] At this point we realise just how divergent were the meanings attached to the idea of “supranationality” around which its defenders had sought to construct the specific nature of the European Community. Of course, the ECSC had always had its critics and detractors, as had the gradual construction of a federal Europe that the ECSC was supposed to incarnate. [21] But these criticisms – essentially amounting to redefinitions of the institution’s nature and role – had up until this time been the largely inaudible claims of a small minority, comfortably drowned out by the generalized enthusiasm of the first years of the European project. [22] In this context, the “crime of 30 August” struck the cheerleaders of supranationality like a bolt of lightning, knocking them brutally down to earth and leaving them dazed and confused – leading to extensive “soul-searching”. [23] It was once they had completed the review of this political failure that the partisans of supranationality began to realize just how imprecise the term was, and how minimal their consensus on what their principal political and conceptual slogan actually meant. This broad but shallow consensus had of course been one reason for “supranationality’s” success, [24] – and also for the incomprehension and misunderstanding it provoked in public opinion. [25]

12The defenders of supranationality had long been in a struggle against proponents of other European visions: the advocates of a Europe of nations, and the partisans of a Europe strictly limited to a free-exchange zone. [26] These positions had prospered following the collapse of the EDC and the “supranationalists” urgently needed to recover lost ground by producing a “consolidated” definition of the ECSC as a supranational community. [27] In fact, far from resigning themselves to what they considered as the dawn of European federation being turned into a mere “coal and steel cartel” [28] at the hands of the member states, the High Authority and the great majority of members of the Common Assembly set out on what can be described as a crusade, led by their President, Giuseppe Pella. [29] The High Authority intensified its propaganda efforts amongst the general public, [30] while the Common Assembly members adopted a resolution [31] on 2 December 1954 in which they forcefully reasserted the parliamentary character of the Common Assembly and thus the truly political nature of the ECSC. They also created a working group charged with the responsibility of studying ways in which the substantive jurisdiction of the Community could be extended, and even the possibility of electing members of the Common Assembly directly, through a vote on the basis of universal suffrage.

13It was in this context, at the end of 1955, that the “Italian Center for Juridical Studies” [32] took the initiative by organizing an international congress in Stresa in the spring of 1957 dedicated to the study of the ECSC. The animating figure here was Giuseppe Pella, the president of the Common Assembly, but also one of the most eminent members of the Italian Center for Juridical Studies and a professor of economics at the universities of Rome and Turin. He would chair the organizing committee for the Stresa congress. The Stresa congress can justly be considered the first academic “high mass” to take place around the ECSC; but its immediate goal was to convince and re-mobilize a specific political audience around the project of a supranational Europe. [33] As such it should be seen as part of the crusade, launched in January 1955 by the defenders of supranationality, to save the nascent ECSC.

Establishing the identity of the ECSC: rooting supranationality in law

14The Stresa congress was an opportunity seized by the High Authority to try to build, on new terms, a veritable doxa of supranationality, one that would eventually permit the exclusion of “heretical” naysayers. Hence a project that at first glance might seem to be a purely academic undertaking takes on a quite different appearance, and should be grasped as an attempt to use “scholarship” to legitimate a political project.

15And indeed, following a request by Giuseppe Pella on 22 February 1956, support for the congress from the High Authority was rapidly accorded. “Believing that it will be in the interest of the Community to promote or even create an annual academic congress on one of the aspects of the ECSC [the members of the High Authority] unanimously agree to grant a subsidy of 10 million lire to the Italian Center for Juridical Studies” [34] and decided to take part in the organization of the event, thus demonstrating its support for the goals of the congress, as defined by the organizing committee and as distilled in Pella’s arguments, which accompanied his request for support. In sum, for the High Authority, if “the effort required by the [organizing committee] is indeed substantial, it is worth agreeing to not only for the purposes of propaganda for our cause, but above all to deliver the greatest possible support to the best possible articulation of the new principles brought into effect with the Treaty of Paris, but that have not yet won universal endorsement and remain the subject of uncertainty and debate among academic authorities”. [35] The goal, then, was to get the opinion of the “academic world” on “this unprecedented European experience, but also to encourage debate on the eventual perfecting of the Community and on the potential evolution of this new supranational organization”. [36] Emphasis was placed on the original character of the organization and the need to “make clear the specific juridical form […] that distinguishes it from other sorts of organizations”. [37] In other words, much as the Stresa congress was intended to be an opportunity to publicize the ECSC’s activities in the domain of coal and steel, to convince public opinion of the new organization’s economic efficiency, and of course to obtain the opinion of academic “experts” regarding the Community’s future, its primary objective, above all else, was to position new concepts, most notably supranationality, within the objectivity of the law.

16In organizing this first academic “high mass” at Stresa, the Italian Center for Juridical Studies and the bureaucracy of the High Authority therefore set out to make a completely new juridical category out of a political slogan, The concept of “supranationality” had suffered a clear setback in the realm of politics, and would be rebuilt in the realm of academia. In practical terms this implied two goals. First, to demonstrate the existence of supranationality as a legal concept (first incarnated in the ECSC and distinct from other international organizations), by putting it on display surrounded by its community of academic specialists; second, to create for supranationality a definition suitable for the political pretentions of its partisans.

17This was not just a simple question of vocabulary or amatter for pedantic jurists. The stakes behind the question of the juridical status of the ECSC – whether it was supranational or international and hence whether it was subject to international or supranational law – were both symbolically and pragmatically important. In symbolic terms the answer to these questions would affect the possibility of conceiving the nascent European system as an autonomous legal order distinct from the international order, and consequently the possibility of presenting the ECSC as an embryonic European political order. In practical terms, the ability to assert that the ECSC was a supranational organization, governed by rules different to those of classical international law, and whose basis and principles remained to be discovered, would allow a constructive and indeed a teleological interpretation of the Treaty of Paris. Such an interpretation was not possible under international law, which traditionally was very respectful of state sovereignty and of states’ power not to commit themselves beyond the terms of explicit agreement and to remain the ultimate arbiter of just what those terms were. By contrast, one of the main solutions to the political difficulties [38] of the ECSC proposed by the partisans of supranationality was to interpret the Treaty of Paris in such a way as to grant to the coal and steel community further domains of jurisdiction. More prosaically, but in the same register of ambition, reaffirming the supranational nature of the ECSC would also set in stone what the advocates of supranationality saw as being one of the specific characteristics of the European Community: that the member states were subordinated to the various supranational bodies of the ECSC: the High Authority, the Court of Justice and the special Council of Ministers that operated on a majority basis.

18The stakes were all the higher given that the Stresa congress was being organized at the same time as the process of European re-launch, instigated by the Six at Messina on 1 June 1955. [39] This political process would reach its conclusion on 25 March 1957 with the signature of two treaties in Rome – the EEC treaty and the Euratom treaty – in which the term “supranational” did not appear once, [40] even if the drafters borrowed heavily from the institutional example of the ECSC. Thus it was that, a few months before the congress was held, it became apparent that not only was the identity of the ECSC at stake, but also the entirety of the process of European integration. It then becomes easy to see why the High Authority decided not just to sponsor the congress at Stresa financially, but to exact in exchange a very concrete role in the event’s preparations.

An alliance with the legitimate doctrine: the internationalists

23In this way every one of the academic committees was slightly re-staffed, with the notable exception of the steering committee, which was made up almost exclusively of professors of international law and which was charged with producing the decisive report on the juridical nature of the ECSC.

24If the overwhelming presence of specialists in international law seems strange or even counter-productive, in light of the poor relationship today between specialists of international law and those of European community law, [56] the idea seemed logical to the Stresa congress organizers. Indeed, in their eyes such an alliance appeared a good idea from more than one standpoint.

25As we have noted above, at the start of the 1950s there were no identifiable specialists in the law of the ECSC. Indeed it was the very possibility of conceiving of an autonomous supranational form of law that was at stake in the debate over the juridical character of the coal and steel community. The Stresa organizers therefore set out to ally themselves, within the existing framework, with the leading exponents of what was seen as the legitimate doctrine in terms of European organizations. Hence the presence at Stresa of these representatives of international law, reflecting the internal division of labor in the legal community between specialists of national and international law. This basic distinction was so well established in the legal community that it seemed self-evident to both the law professors themselves – who were thereby made either eligible or ineligible for the conference – and to the conference organizers. With its origins in an international treaty concluded between a set of sovereign states, the ECSC thus appeared as an international organization – and therefore a “legitimate” object of analysis for international law. We should not forget that Paul Reuter, widely considered the author of the Treaty of Paris, was himself an international law professor.

26If the fact that the international law specialists were mobilized seems logical from the very fact of the doctrinal division of labor, this was not the only reason. On the one hand, the discipline brought together academic professors and jurisconsults who placed their knowledge in the service of states’ interests and thereby enjoyed the ear of a political audience. It was also a scholarly discipline, able to build and maintain its political influence through its neutrality, universality and ambition to question the dogma of absolute state sovereignty. [57] On the other hand, there was no real alternative to the international law specialists, without compromising the potential political success of the congress. This was because, other than the professors of international law, the ECSC was only of interest to two other categories of jurists, and neither group enjoyed access to the political and diplomatic elites that the congress was intended to persuade. [58]

27The first of these marginal groups consisted of those we might call “the embedded jurists of the Community” [59] because of their professional connections to the ECSC institutions. Some of them held prestigious academic positions, but the neutrality and scholarly rigor of their points of view were naturally suspect. Typical in this regard were Pierre-Henri Teitgen, [60] Fernand Dehousse and Pierre Wigny. As for the second group, it was made up of a small number of early-career law professors, mainly specialists in national law. For this group their interest in the ECSC was either a strategy to gain renown within their national academic hierarchy, or else it was driven by an activist commitment to the construction of a federal Europe. As a result of their commitment and their interest in the ECSC, some of them came to be seen as innovators within the wider legal field.

28If we accept the sociological premise according to which “the strength of a symbolic construction relies upon the strength of the groups that rally around its emblems”, [61] then it is hardly surprising that the steering committee of the Stresa conference was basically made up of masters of international law who enjoyed uncontested social and academic prestige. With the sole exception of the Luxembourgeois E. Schaus, every single one had taught at the Academy of International Law in The Hague and were members of the Institut de Droit International (IDI) [Institute of International Law]: two factories of a universalist and constraining form of international law. [62] All had acted as legal advisors to their respective national governments. A few examples will suffice: Charles Rousseau was assistant legal advisor to the French Foreign Ministry from 1949 onwards; Roberto Ago had represented Italy at the ILO and had repeatedly defended his national government before a variety of international tribunals; and Maurice Bourquin had represented his government on various occasions and was a member of the Belgian delegation to the Paris peace conference in 1919 and likewise to the Council of the LON, the disarmament conference of 1932-1935 and the preparatory committee for – and first assembly of – the United Nations in 1945-1946.

A rational alliance

29Given the above, we should emphasize that on the eve of the congress the High Authority had good reason to believe that the report of the steering committee would overall be more positive than negative regarding the High Authority’s ambitions for the ECSC. While the congress organizers were well aware of the criticisms of a “supranational” ECSC made by certain professors of international law, [63] most of those selected to sit on the steering committee had more or less made clear their “political” support for the project of a supranational Europe. For example, Eugène Schaus was among those in the Common Assembly who defended supranationality and the political vocation of the ECSC. [64] Charles Rousseau, who had never taken a clear position on the question of the ECSC’s juridical status, was, like Roberto Ago, a member of the European University Professors Association and had co-signed a piece in Le Monde [65] in the summer of 1954 in support of the EDC.Meanwhile, J. H.W. Verzijl, even if he had defended the Dutch government against the High Authority in 1954, [66] was nonetheless broadly in support. He had been among the committee of jurists to whom, in May 1952, the secretariat of the Council of Europe had assigned the task of drawing up a draft statute for a European political community. [67] He was also involved, as an expert consultant, in the work of the Common Assembly’s ad hoc constitutional commission’s sub-commission on institutional jurisdictions. Finally, and this is undoubtedly key, the congress organizers clearly placed great hopes in Paul de Visscher, since they asked him to draft the steering committee’s final report. De Visscher stands out from the other steering committee members. In 1957, he was just 41, while the average age of the committee members was about 60. His disciplinary position was also less narrowly focused on international law than that of the other members, since he was interested in particular in the links between international and constitutional law and therefore stood at the intersection of internal, national, public law and international law. [68] Above all, his writings up to that time could be interpreted in such a way as to suggest that he would prove to be an unequivocal supporter of supranationality. In 1952 he had been among a set of contributors asked by the Belgian government to assess the juridical nature of the European treaties that created the supranational institutions. [69] The answer they produced was that the “supranational European community” could be clearly established as an individual and specific entity, distinct from the “suprastate community” [70] and, overall, recognizing that “the treaties that have created the supranational communities mark a new stage in the development of the law of nations”. [71] In the same way, de Visscher was also known, within the world of the ECSC, as the author of one of the two first reference books on the ECSC. [72] This text was a co-authored work, produced by a working group at the Brussels Institute of International Relations under de Visscher’s editorship. [73] Naturally, the question of the ECSC’s juridical status was raised there and the conclusions reached very much conformed to the positions held by the representatives of the ECSC itself. In short, in this text the ECSC was first compared to a union of states, then to a federal state, before finally being categorized as “a sui generis international institution that cannot be placed in any of the usual categories that describe unions of states”. [74] Although the question of which form of law applied to the new institution was answered neither in this text nor in the response to the Belgian government in which de Visscher was involved, there was no great distance from acknowledgement of the sui generis – supranational – character of the ECSC to the abandonment of conventional international law as a code through which to govern it.

30Overall, enormous confusion seemed to reign as to the likely outcome of the steering committee’s work. At any rate, that is the conclusion suggested by the measures taken by the High Authority between the fall of 1956 and the spring of 1957, which aimed to give the relevant High Authority departments the power to track the advance of the committee’s work and to influence its direction and progress through indirect means. It was with an eye on this that Rabier made sure that the rapporteur [75] for each committee was in touch with those departments, and with the same goal in mind that he suggested that an “observer” from the High Authority sit in on each of the committees “to follow their work and document it, without actively participating”. [76]All the evidence seems to suggest that it was through these informal exchanges between rapporteurs and department officials of the High Authority that the latter began to realize the extent of the distance between their political ambitions and the position of the steering committee as to the juridical character of the ECSC. While the High Authority wanted to obtain recognition of a new, supranational juridical order, in which national states would be subordinate to European institutions, the steering committee’s conclusions appeared to be heading in a different direction. It was not by chance that on 25 February 1957, one month after Gaudet received a first draft of the “de Visscher Report” that Rabier sent the following memo to the members of the High Authority:

31

“[…] Our observers are following the work of the committees closely and are trying to give them the documentation about the Community they may need, while of course leaving full responsibility for their decisions to the rapporteurs. As a result, it is not out of the question that in the course of the congress itself representatives of the High Authority may have to intervene to rectify or flesh out certain ideas or even oppose certain conclusions. […] What is now urgent is that the High Authority officially names its representatives to the congress.” [77]

32In the same vein, it was not until May 1957 that Louis Delvaux, a judge at the Court of Justice [78] and as such a participant at the congress, volunteered to lend a hand to the cause of supranationality.

33

“I have just read in the bulletin of the ‘Europe’ agency that at the Stresa congress the concept of supranationality is the subject of debate and that the conclusion may not be favorable. I have made a personal study of the idea and I enclose in case it is of use.” [79]

The internationalists’ argument: the supranational is a stranger in the legal realm

35

“Taking into account that the ECSC was born of an international treaty, that it affords considerable room in its internal functioning and the very composition of its organization to the sovereignty of member states and, finally, that its power is as much rooted in harmonization as in subordination, it seems difficult to accept that granting the ECSC certain powers, with an immediate effect on businesses and business associations in the coal and steel industry, can justify on its own the abandonment of its categorization – one that is, moreover, very flexible – as an ‘international institution’.” [80]

36Following a scrupulous analysis, Paul de Visscher reached an unarguable conclusion that accurately reflected the views of a majority on the steering committee. Although he recognized “that the legal regime of the ECSC affects European national citizens with an immediacy [81] of unprecedented scale and power”, to the question of whether “as a result of this – essentially quantitative – novelty, jurists should recognize the jurisprudential legitimacy of the term ‘supranational’”, [82] his response was in the negative. On this basis, in his view the ECSC remained a conventional international organization, consequently subject to conventional international law. [83]

37Needless to say, Michel Gaudet did not agree with de Visscher’s conclusions on behalf of the steering committee. On the contrary, he believed that “it is [precisely] through its ‘quantitative’ scale that the supranational can be distinguished from the international”, and he argued that “the ECSC is a ‘halfway house’: its supranational nature includes elements closer to the international order as well as others that affiliate with federal structures”. [84] On this basis, he believed that the norms of the Treaty of Paris had constituted a “new order, inspired by international norms but borrowing some of its characteristics from federalism”. [85] Gaudet himself did not take part in the discussion that followed the presentation of de Visscher’s report. But his point of view was taken up by other participants at the congress, who articulated the same ideas, whether in verbal interventions or through written communiqués. These documents, spontaneously drafted, much like that of Louis Delvaux, after the shock of the steering committee’s conclusions, were sent by the dissident participants to the congress organizers, and when published in the wake of the report, the total of seven protesting statements became the official pivot of “dissident opinion”. Among these protestors we find a number of the jurists who were “embedded within the ECSC” – Pierre Wigny, Louis Delvaux, Maurice Lagrange (Advocate General at the Court of Justice), and Hans-Wolfram Daig, a doctor of law attached to the Court of Justice. There was also a varied set of younger professors, generally specialists in national law – like François Luchaire or Paul Gaudemet – and in some cases activists for the European cause – Léontin Constantinesco, Guy Héraud and Michel Goriely were members of the UEF – or those, like Jean de Soto, Paul Durand and René Roblot [86], who enjoyed close professional contact with the High Authority as part of their jobs.

38To summarize, at the level of legal doctrine the Stresa congress presented an alternative between international and supranational law. “Legal scholarship” presented a disunited front; thereby sorely questioning one of the bases of its social authority (and political effectiveness): its capacity to present its verdicts as objective truth. Thus, while the end of the congress was a disappointment to its promoters, because it ended with no statement affirming the birth of a new form of law, it was equally embarrassing for the international legal specialists. The authority of international law had already been weakened by the Second World War, and the ability of its rulings to limit the ambitions and actions of sovereign states had never been more in doubt. It was this precarious standing of international lawyers in the mid-1950s – and their determination to overcome it – which explains both their desire to keep the ECSC within their intellectual ambit and the savage “call to scholarly order” issued by Roberto Ago, the president of the steering committee at Stresa, to mark the close of the conference, aimed at those who did not agree with the internationalists’ views.

39What interested the professors of international law in particular was the fact that the ECSC’s power could be directly exercised over the subjects of member states in a highly unmediated fashion. As such, the coal and steel community seemed to them to put international legal principles into practice more than any other, comparable, institution. Thus, by asserting that the ECSC belonged within the circle of international organizations, the internationalist doctrine hoped to effect a renewal and a toughening of their disciplinary credentials, and to make of international law not just a legal order of coordination but, like national law, one of subordination, capable of imposing its rulings and concepts on states and their peoples. [87] By contrast, as de Visscher made clear in his report, if the ECSC was indeed a supranational organization radically different from the other international organizations, and “if [as a result] immediacy of juridical impact is held to distinguish supranational from merely international forms of legal order, then we risk setting an arbitrary and dangerous limit on the potential development and progress of international law”. [88]

40In this light we can readily understand the violent re-delineation of the boundary between scholarship and politics formulated by Roberto Ago, one of the most eminent masters of international law of his era. In his condemnation we detect the seriousness of the threat posed by the supranationalist dissidents and hence the overwhelming need to resist them. By reducing the dissidents rhetorically to the status of “politicians” Ago sought to deprive opponents of the de Visscher report of the status of scholars – of men qualified to participate in the debate on the juridical nature of Europe. In fact, for Roberto Ago, “the contrast of opinions that surfaced in the discussion” between advocates of a supranational ECSC and partisans of an international ECSC “was really no such thing”. This was because, “in reality, the politician who seeks action stands on a very different plane to the scholar who tries to describe a given reality. […] Here is why I don’t think there was a real clash of opinion in our debate: the men of action (who support the ECSC as a supranational body), for all their impatient desire to deploy techniques that will rally the masses, share a single goal with the careful, prudent scholars (who see the ECSC as an international organization): the realization of the Europe we dream of”. [89] This was an effort on Ago’s part to rebuild the unity of “legal scholarship” by staking a monopoly claim, on behalf of the community of internationalists, to define legitimate legal doctrine on the topic of European integration, and to exclude dissident interpretations by disqualifying them.

The supranationalist schism

41Despite these final bids to reunify legal doctrine under the banner of international law, neither the Stresa congress nor the eight ensuing volumes of official proceedings that documented it demonstrate a scholarly community unified around a common set of interpretive principles concerning the new Europe. Quite the contrary, in fact. This first academic “high mass” had served to bring into the open the opposition between a group of “ECSC law entrepreneurs” and the community of internationalists. Whereas the congress organizers had hoped, mistakenly, to recruit the international law specialists to the cause of supranationality, these entrepreneurs assembled around a supranational vision of the ECSC, one that sat well with the institutional goals of the Community and that sought to make of it an autonomous political hub; a vision that was essentially incompatible with the preferred framework of the international law experts.

42It was precisely thanks to the doctrinal debate which followed the international law professors’ staking out of their position in the steering committee that previously individual and dispersed opposition among a diverse group of jurists began to coalesce, becoming a coherent opposition to the international lawyers that, as the congress unfurled, became a more clearly defined and entrenched position. This group brought together a heterogeneous collection of law professors, European MPs, members of the European Court of Justice, and of the legal service of the High Authority, who can be qualified as “dissidents” in the eyes of those who believed themselves to represent legitimate doctrine. The group assumed a greater sense of its role and coherence as its existence began to be implicitly acknowledged by the community of international law professors, who subsequently excommunicated it. Indeed the very process of exclusion, explicitly called for, thereafter helped consolidate the dissidents as a group and establish their collective identity.

Table 1

Jurists who took part in the first academic congress at Stresa on the ECSC and its relations with member states

Name, First name Nationality Born (age) Profession/position Role at the congress Position on the degree of autonomy of ECSC law viz international law Supplementary biographical information Ago, Roberto Italian 1907 (50) Professor of international law in Rome/member of the Institut de Droit International [Institute of International Law] (IDI) President of the steering committee/ Participated in the production of its report. Upholds the international character of ECSC law. Member of the European University Professors Association / Member of the Legal committee of the Council of Europe in 1952 / Represented Italy at the ILO. De Visscher, Paul Belgian 1916 (41) Professor of international law in Louvain / member of the IDI Rapporteur / Drafted the report + intervened verbally Upholds the international character of ECSC law. Son of Charles de Visscher, Professor of international law between the world wars. Bourquin, Maurice Belgian 1884 (73) Professor of international law at Institute for Advanced International Studies Geneva / member of the IDI Member of the steering committee/ Participated in the production of its report. Upholds the international character of ECSC law. Morelli, Gaetano Italian 1900 (57) Professor of international law in Rome/member of the IDI Member of the steering committee/ Participated in the production of its report. Upholds the international character of ECSC law. Rousseau, Charles French 1902 (55) Professor of international law in Paris / member of the IDI Member of the steering committee/ Participated in the production of its report. Upholds the international character of ECSC law. Jurist at the French Foreign Ministry / Member of the European University Professors Association. Schätzel, Walter German 1890 (67) Professor of international law in Bonn / member of the IDI Member of the steering committee/ Participated in the production of its report. Upholds the international character of ECSC law.

Schaus, Eugène Luxemburg 1901 (56) Lawyer Member of the steering committee/ Participated in the production of its report + intervened verbally Upholds the autonomous character of ECSC law. Former minister / Vice president of the Chamber of deputies/ member of the ECSC common assembly. Verzijl, Jan H. W. Dutch 1888 (69) Professor of international law in Utrecht / member of the IDI Member of the steering committee/ Participated in the production of its report + intervened verbally Upholds the international character of ECSC law. Member of the Legal committee of the Council of Europe in 1952 / Expert consultant to the constitutional commission of the ad hoc assembly. Delvaux, Louis Belgian 1895 (62) Lawyer / Judge at the ECSC Court of Justice Written statement Strongly upholds the autonomous character of ECSC law. Former deputy/minister. Wigny, Pierre Belgian 1905 (52) Professor of constitutional law Intervened verbally Strongly upholds the autonomous character of ECSC law. Former deputy/minister / member of the ECSC common assembly. Lagrange, Maurice French 1900 (57) Counsel of State / Chief lawyer to the ECSC Court of Justice Intervened verbally Strongly upholds the autonomous character of ECSC law. Daig, Hans-Wolfram German ? Attached to the ECSC Court of Justice Intervened verbally Upholds the autonomous character of ECSC law.

Constantinesco, Léontin Romanian 1915 (42) Instructor in private and comparative law at the University of the Sarre / taught in several institutes of European studies Written statement + intervened verbally Strongly upholds the autonomous character of ECSC law. UEF central committee member. Héraud, Guy French 1920 (37) Professor of Constitutional Law in Strasbourg / taught in several institutes of European studies Intervened verbally Upholds the autonomous character of ECSC law (initially at least). UEF Member / Member of the European University Professors Association. Goriely, Georges Belgian (born in Germany) 1921 (36) PhD in Law / Sociology Professor in Brussels / taught in several institutes of European studies Intervened verbally Upholds the autonomous character of ECSC law. UEF Member / Member of the European University Professors Association. De Soto, Jean French 1915 (42) Professor of Public Law in Strasbourg Intervened verbally Upholds the autonomous character of ECSC law. Luchaire, François French 1919 (38) Professor of Public Law in Nancy and Sarrebruck / Directed Center of Political Studies at Nancy University Intervened verbally Upholds the autonomous character of ECSC law. Former chargé de mission and technical advisor to the Ministry of the Navy (1945) and to the Ministry of Overseas France (1951). Gaudemet, Paul French 1914 (43) Professor of Public Law in Nancy and Sarrebruck Intervened verbally Weakly upholds the autonomous character of ECSC law. Member in 1957 of the Sarre Tribunal.

Jurists who took part in the first academic congress at Stresa on the ECSC and its relations with member states

43Hence, a few months after the end of the congress at Stresa, Maurice Lagrange, Advocate General at the ECSC’s Court of Justice, hitherto a dissident voice crying in the wilderness, [90] assumed and claimed the rupture that had occurred at Stresa. Bolstered by this first “demonstration” at the congress, he henceforward spoke in the name of a distinct group, for which he acted both as spokesman and midwife, labeling the group, and designating its members and its adversaries. This was the purpose of the article he published in Revue du droit public at the end of 1958. [91] This article, which took the form of an inaugural manifesto for the dissident supranationalists, was topped off by a long and surprising preamble that emphasized the scholarly importance of the proceedings of the Stresa congress. Lagrange elevated these proceedings to the rank of a work of reference, and then identified by name, albeit indirectly, the members of the group, which for the first time he explicitly labeled “supranationalist”, [92] thereby endorsing a full-blown doctrinal schism. [93] Following a series of arguments that responded to de Visscher’s report point by point, Lagrange concluded with an appeal and a warning:

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“We hope that the reader now understands why this text was written. It is both a statement of witness and an appeal. The statement of witness comes from one who has the honor of being associated with this first, exhilarating experience […]. As for the appeal, it is aimed above all – as you will have surmised – at the ‘internationalists’: those among them who declare themselves in favor of the current experiment, and who really are, should be well aware of the effect caused by the adoption of certain doctrinal standpoints and they should not hesitate, if necessary, to revise them. The dynamic character of the treaty demands a matching dynamism within legal thought.” [94]

45This appeal directly echoed the position staked out by Roberto Ago in his final speech to the Stresa congress. To the stigmatizing of the supranationalists by denigrating them as politicians, Maurice Lagrange responded with a statement of the necessity, in the circumstances, to think about the implication of doctrinal positioning on the construction of the European project. Only a few years after the end of the Second World War, such a warning amounted to accusing internationalists who stubbornly stuck to their guns of being “bad Europeans” and thus of working against peace.

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47Thus, the Stresa conference should not be thought of as the birth of supranational law. Nonetheless, it was an important step in the long process through which a properly European legal doctrine was constructed and given autonomy, because it allowed a diverse group of law professors, European MPs, and bureaucrats to realize that they shared a point of view and to understand the incompatibility of that point of view with the legal concept of European integration espoused by the internationalists. The High Authority, confronted by the apparent impossibility of enrolling the internationalists in the cause of supranationality, decided to change its “academic strategy”. Following the divorce between internationalists and supranationalists at Stresa, the legal service of the High Authority, which initially tried to promote an ad hoc development of the law by allying itself with the legitimate doctrine represented by the scholars of international law, then tried to impose their supranational vision of European integration against the international law specialists, relying for support on the several academics among the emerging group of entrepreneurs of supranational law. In the years that followed, it was through the symbiotic relationship connecting the members of the European political institutions to this collection of professors who lacked academic prestige, that the cardinal concepts of the European law we know today were worked out and consolidated. Among these cardinal concepts were the primacy of European law and its unmediated jurisdictional immediacy. It was through the same relationship that this new law would establish its legitimacy, having broken with legal tradition and, therefore, possessing questionable academic credentials. [95]