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The Schuman Plan Sovereign Powers of the European Coal and Steel Community

Published online by Cambridge University Press:  20 April 2017

Raymond Vernon
Raymond Vernon*
Affiliation:
Office of Economic Defense and Trade Policy, Department of State
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Extract

Perhaps the easiest way to miss the legal significance of the Schuman Plan and the Treaty to which it gave rise is to study it in terms of familiar legal concepts. Like most really historical documents, the Treaty Constituting the European Coal and Steel Community,though conditioned by the legal concepts with which its drafters were familiar, makes history primarily because it takes a step beyond those traditional concepts.

Type
Research Article
Information
American Journal of International Law , Volume 47 , Issue 2 , April 1953 , pp. 183 - 202
Copyright
Copyright © American Society of International Law 1953

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References

1 Illustrative is the reaction of the Welsh miners and, hence, of the United Kingdom Government, to the use of Italian miners in English coal pits. Although the employment of Italian miners would be no immediate economic threat to the Welsh, both because of the chronic shortage of miners and the temporary status of the Italians in England, the Welsh resented their presence in the mining towns. This resentment may have been due partly to the fear that the Italians’ presence would eventually damage the bargaining position of the Welsh miners, but it was also due to some extent to social factors. See “British Miners Bar Italians from Pita,” The New York Times, May 18, 1952, p. 1.

2 Since the end of World War II France had been engaged in a succession of efforts to prevent German basic industry from expanding too rapidly. Her early efforts were typified by the so-called “level-of-industries” agreement, agreed in principle among the four occupying Powers at Potsdam, which placed specific limits upon the capacity to which certain types of German industry might expand. See Dept. of State, United States Economic Policy toward Germany (Washington, D. C., Publication 2630, European Series 15), Appendix K, pp. 133–139. This was followed by such plans as the International Authority for the Ruhr, which was charged among other things with ensuring that Germany exported a fair share of the coal mined in the Ruhr. See Dept. of State Press Release No. 1028, Dec. 28, 1948. By 1950, the wisdom of following a restrictive course with respect to German industry had become an open question, even in France. In any case, it had become clear in most quarters that none of the devices so far employed could guarantee that German basic industry would not exceed French basic industry in size and strength.

3 For an authoritative discussion of the problem, see Jacob Viner, The Customs Union Issue (New York: Carnegie Endowment for International Peace, 1950). For a description of recent customs union projects, see U.N. Dept. of Economic Affairs, Customs Unions (Lake Success, 1947).

4 Other recent efforts at customs union have not even made as much progress as Benelux. For example, an Italian-initiated effort to achieve a Franco-Italian Customs Union, launched in 1947, soon evolved into a series of detailed discussions, industry by industry, of how the pain of increased competition might be avoided through industry agreements. Negotiations on the Union are now quiescent, with no indication that either party will soon revive them. See Viner, op. cit., p. 74.

5 OEEC, Code of Liberalization, Paris, July, 1951, Art. 1(a). The OEEC was created in April, 1948, by the countries participating in the Marshall Plan; 17 Western European countries are full members, while the United States and Canada are associate members.

6 For a brief account of the operations of the trade liberalization program and the related European Payments Union, see Princeton University, Surrey of United States International Finance, 1951 (Princeton, 1952), pp. 239–259.

7 For a description of each of the plans, see W. Diebold, Jr., Trade and Payments in Western Europe (New York: Harper & Bros., 1952), Part II.

8 See, e.g., “An Analysis of the Schuman Plan,” Dept. of State Bulletin, Vol. 24, No. 613 (April 2, 1951), pp. 523–528; also A.Philip, The Schuman Plan, European Movement (Brussels, 1951).

9 Treaty Constituting the European Coal and Steel Community, April 18, 1951 (hereafter cited as “Treaty”), Art. 4(a). The authentic French and German texts of the Treaty and related Convention are published in U.Sahm and W. Hallstein, Der Schuman Plan (Frankfort-am-Main, 1951), p. 23 et seq. Unofficial English translations appear in Convention on Relations with the Federal Republic of Germany and a Protocol to the North Atlantic Treaty, Message from the President of the United States transmitting certain agreements to the Senate, Execs. Q and R, 82d Cong., 2d Sess. (June 2, 1952), pp. 255–328; reprinted in this Journal, Supp., Vol. 46 (1952), p. 107 et seq.

10 Treaty, Art. 4 (c).

11 Ibid., Art. 4 (b).

12 Ibid.

13 Ibid., Art. 4(d).

14 Ibid., Art. 69.

15 Treaty, Art. 61.

16 Ibid., Arts. 58, 59.

17 Treaty, Art. 71, par. 2. The language of the article is carefully generalized, so that the GATT itself is not mentioned. The article rather refers to “international agreements … concerning commercial policy.”

18 Convention containing the Transitional Provisions (hereafter sited as “Convention”), Sec. 20.

19 See GATT Doc. G/35, Nov. 7, 1952 (mimeographed), pp. 7–13.

20 Id. at p. 8. Another indication of the uncertainty of the contracting parties in dealing with the new Community is the way in which the waiver treats the possibility that the Community’s Court might be placed in the position of adjudicating a dispute between an institution of the Community and a member state on the question whether a particular action required by the Community of the member state would violate that state’s obligations under the GATT. The contracting parties felt, quite properly, that any dispute involving this question should be decided within the GATT, not by the Community’s Court. On the other hand, they could see no way of binding the Community to such a course. Accordingly, the waiver simply “notes” the representation of the six member states that, if the situation arose, “… any recommendation, finding or decision by the Contracting Parties with respect to such action or proposed action of the Community or the member States shall have the same force and effect as it would have if the recommendation, finding or decision were made in respect of such action or proposed action on the part of any other contracting party under the General Agreement.”

21 OEEC, Code of Liberalization, Paris, July, 1951, Art. 7.

22 Convention, Sec. 21. The applicable provision of the OEEC Code is found in OEEC, Code of Liberalization, Paris, July, 1951, Art. 8.

23 See “Coal Pool Treed of Import Quotas,” The New York Times, Feb. 8, 1953, p. 10.

24 Treaty, Art. 59.

25 The Economic Commission for Europe is a regional organization of the United Nations. Meeting in Geneva, it includes the principal nations of Eastern and Western Europe and the United States.

26 The principal exception to this generalization would arise in the circumstances mentioned earlier in the text, in which, because of the existence of extreme shortage, a system of allocation was introduced in the common market. Such a system would normally result in a specified amount of coal or steel being earmarked for export by each member country. Treaty, Arts. 58 and 59.

27 Treaty, Art. 75, par. 2.

28 Treaty, Art. 67.

29 Treaty, Art. 46, par. 1.

30 Treaty, Art. 47, par. 3; Art. 54, par. 6; Art. 64; Art. 65, Sec. 5; Art. 66, See. 6.

31 Treaty, Art. 49.

32 Treaty, Art. 54, par. 1.

33 Treaty, Art. 58, Sec. 2.

34 Treaty, Art. 65, Sec. 5.

35 Treaty, Art. 66, Sec. 1.

36 Treaty, Art. 46, par. 2.

37 Treaty, Art. 33, par. 3; Art. 36, par. 3.

38 These illustrations, of course, are over-easy generalizations. None of these states is a pure illustration of the concept for which it stands.

39 Treaty, Art. 5.

40 Treaty, Art. 65, par. 1.

41 See, e.g., Foreign Legislation Concerning Monopoly and Cartel Practices, Report of Dept. of State to Subcommittee on Monopoly of Senate Small Business Committee, Subcommittee Print No. 5, 82d Cong., 2d Sess. (July 9, 1952), pp. 5–139, passim.

42 Analogous provisions in American law are found in the Public Utility Holding Company Act of 1935, relating to holding companies and their subsidiaries, but these are not of general applicability. 49 Stat. 803, 15 U.S.C. 79 et seq. The only rules of general applicability relating to mergers, consolidations and stock acquisitions are found in Sec. 7 of the Clayton Act, 38 Stat. 731, amended by Act of Dec. 29, 1950, 64 Stat. 725, codified in amended form in 15 U.S.C. (1946, Supp. V) 18. But this provision is less sweeping than the provisions in the treaty.

43 Treaty, Art. 66. The reasons for these provisions are to be found only partly in the drafters’ adherence to competition as an economic way of life. More important, perhaps, was the concern of the drafters that cartels, if permitted to develop, might become the real political power of the Community, and might constitute a challenge to the Community’s sovereignty.

44 Treaty, Art. 54.

45 Ibid., Art. 58.

46 Ibid., Art. 59.

47 Treaty, Art. 60.

48 The standards governing the Community’s rules on pricing practices are set out in some detail in the treaty. They are novel standards, intriguing to the economist and the businessman.

49 Treaty, Art. 61.

50 Ibid., Art. 9.

51 Treaty, Art. 10. The article is rather complex, permitting a veto by a government in some cases but curbing its excessive use.

52 The Council acts sometimes by simple majority vote, sometimes by other stated majorities, and sometimes by unanimous vote, depending on the nature of the issue.

53 Treaty, Art. 54, par. 2.

54 Ibid., Art. 58, Sec. 1.

55 Ibid., Art. 59, Secs. 1 and 2.

56 Ibid., Art. 59, Sec. 5.

57 Treaty, Art. 33, par. 1.

58 Ibid., Arts. 33, 35, 36, 37, and 38.

59 Ibid., Art. 41.

60 Ibid., Art. 89.

61 Ibid., Art. 97.

62 Ibid., Art. 86, par. 4.

63 Ibid., Art. 92.

64 Ibid., Art. 44.

65 Treaty, Art. 95. The article refers to “… an adaptation of the rules concerning the exercise by the High Authority of the powers which are conferred upon it …” The reference to “rules” is not unambiguous, but the ambiguity is principally the result of translation of the word “règies,” which has a broader meaning than the word “rules” and is meant here to include the applicable treaty provisions.

66 Ibid., Art. 96.