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International Law

Perils of ever-closer union

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The preamble to the treaty of Rome signed by the EU’s six founding countries famously says that they “were determined to lay the foundations of an ever-closer union among the peoples of Europe”.

These words have hung around the necks of Europeans ever since. That grandiose language harked back to the preamble to the League of Nations when it was set up in 1920 ‘to secure international peace and security.’ For all its faults, the treaty of Rome has weathered better than the League of Nations; its magnetism is such that countries still queue to join. Croatia has just done so, and others like Serbia, Moldova or Kosovo hope very much to get in.

 

The common market created by the treaty of Rome in 1957 was not much more than a customs union, and tariffs within it were not finally abolished until 1968. In France, General de Gaulle ignored many aspects of the treaty, and also treated Brussels with contempt. And the real questions surrounding an ever-closer union were only to become sensitive in the 1980s. The Single European Act, which was strongly promoted by Margaret Thatcher, marked the single biggest transfer, or at least sharing, of sovereignty ever seen in Europe. It was followed by the Maastricht treaty and then a decade ago by the Constitutional treaty, which paradoxically removed the reference to ever-closer union because by the early years of this century politicians were getting more and more nervous about the growth of euroscepticism in their countries’ politics.

 

The term was reintroduced in the Lisbon treaty because it simply took over previous language from older treaties, even though opt-outs were developed as part of the sequence of European treaties to accommodate the need for the Danes to stay outside the currency union or in 1992 to allow the British to steer clear of social policy. Despite free movement of people, though, the closer integration of standards and an opening up to greater competition across Europe, the power of national governments to resist or delay a fully open market has remained strong. It was not until 1988, that the Germans had to admit that their Reinheitsgebot (purity ordinance) on beer dating from 1516, which laid down that beer could only be made from water, barley and hops, was a protectionist barrier against competition from brewers in other countries which add more ingredients.

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EU governments must accept that individual countries’ budgets will no longer be decided by national governments alone, and that national banking systems will be supervised and monitored centrally

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But what exactly does ever-closer union mean today? Many markets across Europe are still far from being integrated, as a casual look at the service sector will testify. Taxes are unharmonised and there remains intense tax competition between countries. Moves towards political union have so far, to put it politely, been limited. In Britain, the House of Commons library examines each year the total number of laws adopted in the UK, and can never find more than 8% of primary legislation that originates from the EU. Despite the moves to greater integration since the euro crisis first struck, the fact is that if one looks at the legislation making headlines across Europe – gay marriage, education policy, health care provision, whether to have contributory or free systems of pension and student fees, welfare reform, voting systems, pay control, or even speed limits on motorways – it is Europe’s national governments that are still firmly in the driving seat.

What Europe has instead witnessed in recent years is the rebirth of the nation state in contrast to the years between the treaty of Rome and the Single European Act. It is doubtful that the founding fathers of the European project ever dreamed that Lithuania would one day preside over their Europe, or that Slovakia and Croatia would have the same veto rights in European affairs as Germany and France. Catalonia has its own “embassy” in Brussels, as do Scotland and most of the major regions and provinces. The languages of Europe are respected and guaranteed as are national cultures. Far from an ever-closer union, it may be argued that it would be more accurate to talk of ‘ever more nation-states’ as the chief product of the EU in recent times. And the euro crisis has if anything encouraged even greater nationalism in many countries in Europe as a reaction to austerity policies.

At the same time, the European Parliament sees fewer and fewer citizens voting in its elections. Only 20% of Croatian voters could be bothered to turn out to elect their six MEPs in April of this year. In Germany, Chancellor Angela Merkel often talks of ‘more Europe’, but on condition that no more German money should be involved. In fact, the more Europe has sought to appropriate the symbols of a union or a single entity the less its citizens have wanted to pay, and the more they have supported the anti-Brussels political formations that have grown in strength in nearly all the EU’s member states.

On foreign policy, there certainly is no ever-closer union. Europe is divided over whether or not to intervene in Syria and its member governments habitually take different positions on such key international questions as recognition of the Palestinian authority as a UN state. Europe’s military strength is diluted by remaining parcelled out between different armies with different defence procurement policies.
On energy policy, there is equally little sense of an ever-closer union – Germany opts out of nuclear, Poland sticks to brown coal, Britain keeps dashing for gas, and prices paid by industry vary widely.

Despite this, co-operation and the search for agreement on common policy is worthwhile and necessary. Political agreement, if not political union, is needed to transfer authority to the European Commission in areas like trade and competition – and financial supervision and control. Political union in the sense of supranational agreement to transfer sovereignty to the European Court of Justice in key areas has been a good thing from an economic point of view. The single market, although still not complete, is the product of ever-closer political union.

The big question remains the single currency. British eurosceptics point to the eurozone crisis as proving the failure of the attempt to move to a closer ‘union’ through the adoption of a common currency across much of the continent. And even the most devoted supporter of the euro must surely admit that too many countries with too many different levels of development rushed into EMU at the same time. That was ignored by the ‘mission accomplished’ complacency that followed its introduction more than a decade ago, and left no mechanisms to spot the housing bubbles, unsustainable cheap money credit growth and the failure of some national economies to align their spending and revenues. Arguably the single currency still requires ever-closer political union with more power to be held and used at the centre. And it is precisely because that didn’t exist that the eurozone has experienced the terrible difficulties of recent years.

 

Today, the elements of complacency are again visible. Yet the euro is still in trouble and the basic flaws in its construction have still not been corrected. There can be no doubt that to make the single currency work there will have to be exactly what the British have long feared, more political union that can make the EU capable of overruling Berlin and telling Italy and Portugal how better to govern themselves. It’s hard to see this happening in a hurry, and to get there there are a number of preconditions that must be met. It would in the first place require collective responsibility to ensure that the eurozone gets out of its current problems sustainably. That in turn means an understanding by surplus countries like Germany, whose growth has been export driven and which has greatly benefited from membership of the wider euro area of the concessions they too must make. They need to rebalance their own economies in favour of more consumer spending, open their own markets to competition, which in many areas is still lacking, and support growth on the periphery through the direct and indirect transfer of funds to weaker countries. They also need to accept that the debt burden of many of the ‘stressed’ countries will remain unsustainable, and that further restructuring is inevitable. But this should be on condition that the periphery countries fully buy into the proposition that they must themselves focus on investment and growth through the substantial reorganisation of their economies.

 

The European Central Bank should also be allowed to do what it is supposed to do if it is to act as a proper central bank of an integrated Europe and should be able to engage in Outright Monetary Transactions (OMT) to buy the bonds of stressed countries whenever necessary to prevent periodic sovereign debt and credit crunches. The ECB should in effect embark on Europe’s own version of the quantitative easing that has worked elsewhere, most notably in the U.S. And most controversial of all, EU governments must accept that individual countries’ budgets will no longer be decided by national governments alone, and that national banking systems will be supervised and monitored centrally.

 

Bits of all this may happen as European countries move forward kicking and screaming. But is anyone in the EU up for the whole package? If the answer is no, then it would be better to start rethinking what ever-closer union really means, and whether Europe will ever get there.

 

First published by the Europe’s World, article re-posted per author’s permission

International Law

Carl Schmitt for the XXI Century

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For decades, the scholars of international relations have confused the term “New World order” in the social, political, or economic spheres. Even today, few scholars confuse the term with the information age, internet, universalism, globalization, and  American imperialism. Unlike the complex categorization of the New World Order, the concept of the Old World Order was purely a juridical phenomenon. However, from standpoint of modernity, the term New World order is a purely ideological and political phenomenon, which embodies various displays such as liberal democracy, financial capitalism, and technological imperialism.

In his Magnus Opus “The concept of the Political”, Carl Schmitt lauded a harsh criticism on liberal ideology and favored competitive decisionism over it. This is why according to Schmitt’s critics; the whole text in “The concept of the political” is filled with authoritarian overtones. Nonetheless, the fact cannot be denied that it was the radical political philosophy of Carl Schmitt that paved the way for the conservative revolution in Europe. Even today, his writings are being regarded as one of the major contributions to the field of political philosophy from the 20th century.

Throughout his major works such as “Nomos of the earth”, “the Crisis of Parliamentary democracy”, “The concept of the Political” and “Dictatorship”, Carl Schmitt frequently employs unadorned terms such as ‘actual’, ‘concrete’, ‘real’, and ‘specific’ to apprize his political ideas. However, he advances most of the core political ideas by using the metaphysical framework. For instance, in the broader political domain, Carl Schmitt anticipated the existential dimension of the ‘actual politics’ in the world today.

On the contrary, in his famous work “The Concept of the Political” readers most encounter the interplay between the abstract and ideal and, the concrete and real aspects of politics. Perhaps, understanding of Schmitt’s discursive distinctions is necessary when it comes to the deconstruction of the liberal promoted intellectual discourse. However, the point should be kept in mind that for Schmitt the concept of the political does not necessarily refer to any concrete subject matter such as “state” or “sovereignty”. In this respect, his concept of the political simply refers to the friend-enemy dialectics or distinction. To be more precise, the categorization of the term “Political” defines the degree of intensity of an association and dissociation.

In addition, the famous friend-enemy dialectics is also the central theme of his famous book “The Concept of the Political”. Likewise, the famous friend-enemy distinction in Schmitt’s famous work has both concrete and existential meaning. Here, the word “enemy” refers to the fight against ‘human totality”, which depends upon the circumstances. In this respect, throughout his work, one of the major focuses of Carl Schmitt was on the subject of  “real Politics”. According to Schmitt, friend, enemy, and battle have real meaning. This is why, throughout his several works; Carl Schmitt remained much concerned with the theory of state and sovereignty. As Schmitt writes;

I do not say the general theory of the state; for the category, the general theory of the state…is a typical concern of the liberal nineteenth century. This category arises from the normative effort to dissolve the concrete state and the concrete Volk in generalities (general education, general theory of the law, and finally general theory of the knowledge; and in this way to destroy their political order”.[1]

As a matter of the fact, for Schmitt, the real politics ends up in battle, as he says, “The normal proves nothing, but the exception proves everything”. Here, Schmitt uses the concept of “exceptionality” to overcome the pragmatism of Liberalism. Although, in his later writings, Carl Schmitt attempted to dissociate the concept of “Political” from the controlling and the limiting spheres but he deliberately failed. One of the major reasons behind Schmitt’s isolation of the concept of the political is that he wanted to limit the categorization of friend-enemy distinction. Another major purpose of Schmitt was to purify the concept of the “Political” was by dissociating it from the subject-object duality. According to Schmitt, the concept of the political was not a subject matter and has no limit at all. Perhaps, this is why Schmitt advocated looking beyond the ordinary conception and definition of politics in textbooks.

For Schmitt, it was Liberalism, which introduced the absolutist conception of politics by destroying its actual meaning. In this respect, he developed his very idea of the “Political” against the backdrop of the “human totality” (Gesamtheit Von Menschen). Today’s Europe should remember the bloody revolutionary year of 1848 because the so-called economic prosperity, technological progress, and the self-assured positivism of the last century have come together to produce long and deep amnesia. Nonetheless, the fact cannot be denied that the revolutionary events of1848 had brought deep anxiety and fear for the ordinary Europeans. For instance, the famous sentence from the year 1848 reads;

For this reason, fear grabs hold of the genius at a different time than it does normal people. the latter recognizes the danger at the time of danger; up to that, they are not secure, and if the danger has passed, then they are secure. The genius is the strongest precisely at the time of danger”.

Unfortunately, it was the intellectual predicament at the European stage in the year 1848 that caused revolutionary anxiety and distress among ordinary Europeans. Today, ordinary Europeans face similar situations in the social, political, and ideological spheres. The growing anxieties of the European public consciousness cannot be grasped without taking into account Carl Schmitt’s critique of liberal democracy. A century and a half ago, by embracing liberal democracy under the auspices of free-market capitalism, the Europeans played a pivotal role in the self-destruction of the European spirit.

The vicious technological drive under liberal capitalism led the European civilization towards crony centralism, industrialism, mechanization, and above all singularity. Today, neoliberal capitalism has transformed the world into a consumer-hyped mechanized factory in which humanity appears as the by-product of its own artificial creation. The unstructured mechanization of humanity in the last century has brought human civilization to technological crossroads. Hence, the technological drive under liberal democratic capitalism is presenting a huge threat to human civilizational identity.


[1] Wolin, Richard, Carl Schmitt, Political Existentialism, and the Total State, Theory and Society, volume no. 19, no. 4, 1990 (pp. 389-416). Schmitt deemed the friend-enemy dialectics as the cornerstone of his critique on liberalism and universalism.

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International Law

Democratic Backsliding: A Framework for Understanding and Combatting it

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Democracy is suffering setbacks around the world. Over the past decade, the number of liberal democracies has shrunk from 41 to 32. Today, 34 percent of the global population lives in 25 countries moving in the direction of autocracy. By contrast, only 16 countries are undergoing a process of democratization, representing just 4 percent of the global population. Reflecting these troubling trends, USAID Administrator Samantha Power, during her confirmation hearing, highlighted democratic backsliding – along with climate change, conflict and state collapse, and COVID-19 – as among the “four interconnected and gargantuan challenges” that will guide the Biden Administration’s development priorities.

However, defining “democratic backsliding” is far from straightforward. Practitioners and policymakers too often refer to “democratic backsliding” broadly, but there is a high degree of variation in how backsliding manifests in different contexts. This imprecise approach is problematic because it can lead to an inaccurate analysis of events in a country and thereby inappropriate or ineffective solutions.

To prevent or mitigate democratic backsliding, policymakers need a definition of the concept that captures its multi-dimensional nature. It must include the actors responsible for the democratic erosion, the groups imperiled by it, as well as the allies who can help reverse the worst effects of backsliding. 

To address this gap, the International Republican Institute developed a conceptual framework to help practitioners and policymakers more precisely define and analyze how democratic backsliding (or “closing democratic space”) is transpiring and then devise foreign assistance programs to combat it.  Shifting away from broad generalizations that a country is moving forward or backward vis-à-vis democracy—which makes it difficult, if not impossible, to derive specific solutions—the framework breaks closing democratic space into six distinct, and sometimes interrelated, subsectors or “spaces.”

Political/Electoral: Encompasses the arena for political competition and the ability of citizens to hold their government accountable through elections. Examples of closing political or electoral space range from fraudulent election processes and the arrest or harassment of political leaders to burdensome administrative barriers to political party registration or campaigning.

Economic: Refers to the relationship between a country’s economic market structure, including access and regulation, and political competition. Examples of closing economic space include selective or politically motivated audits or distribution of government licenses, contracts, or tax benefits.

Civic/Associational: Describes the space where citizens meet to discuss and/or advocate for issues, needs, and priorities outside the purview of the government. Examples of closing civic or associational space include harassment or co-optation of civic actors or civil society organizations and administrative barriers designed to hamper civil society organizations’ goals including limiting or making it arduous to access resources.

Informational: Captures the venues that afford citizens the opportunity to learn about government performance or hold elected leaders to account, including the media environment and the digital realm. h. Examples of closing informational space consist of laws criminalizing online speech or activity, restrictions on accessing the internet or applications, censorship (including self-censorship), and editorial pressure or harassment of journalists.  

Individual: Encapsulates the space where individuals, including public intellectuals, academics, artists, and cultural leaders– including those traditionally marginalized based on religious, ethnicity, language, or sexual orientation–can exercise basic freedoms related to speech, property, movement, and equality under the law. Common tactics of closing individual space include formal and informal restrictions on basic rights to assemble, protest, or otherwise exercise free speech; censorship, surveillance, or harassment of cultural figures or those critical of government actions; and scapegoating or harassing identity groups.

Governing: Comprises the role of state institutions, at all levels, within political processes. Typical instances of closing the governing space include partisan control of government entities such as courts, election commissions, security services, regulatory bodies; informal control of such governing bodies through nepotism or patronage networks; and legal changes that weaken the balance of powers in favor of the executive branch.

Examining democratic backsliding through this framework forces practitioners and policymakers to more precisely identify how and where democratic space is closing and who is affected. This enhanced understanding enables officials to craft more targeted interventions.

For example, analysts were quick to note Myanmar’s swift about-face toward autocracy.  This might be true, but how does this high-level generalization help craft an effective policy and foreign aid response, beyond emphasizing a need to target funds on strengthening democracy to reverse the trend? In short, it does not.  If practitioners and policymakers had dissected Myanmar’s backsliding using the six-part framework, it would have highlighted specific opportunities for intervention.  This systematic analysis reveals the regime has closed civic space, via forbidding large gatherings, as well as the information space, by outlawing online exchanges and unsanctioned news, even suspending most television broadcasts.  One could easily populate the other four spaces with recent examples, as well. 

Immediately, we see how this exercise leads to more targeted interventions—support to keep news outlets operating, for example, via software the government cannot hack—that, collectively, can help slow backsliding.  Using the framework also compels practitioners and policymakers to consider where there might be spillover—closing in one space that might bleed into another space—and what should be done to mitigate further closing.

Finally, using this framework to examine the strength of Myanmar’s democratic institutions and norms prior to the February coup d’etat may have revealed shortcomings that, if addressed, could have slowed or lessened the impact of the sudden democratic decline. For example, the high-profile arrest of journalists Wa Lone and Kyaw Soe Oo in December 2017 was a significant signal that Myanmar’s information space was closing. Laws or actions to increase protections for journalists and media outlets, could have strengthened the media environment prior to the coup, making it more difficult for the military to close the information space.

A more precise diagnosis of the problem of democratic backsliding is the first step in crafting more effective and efficient solutions. This framework provides practitioners and policymakers a practical way to more thoroughly examine closing space situations and design holistic policies and interventions that address both the immediate challenge and longer-term issue of maintaining and growing democratic gains globally.

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International Law

Authentic Justice Thus Everlasting Peace: Because We Are One

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The ceasefire in the Israeli-Palestine conflict is a good thing. We thank God for it. Be it between two individuals or institutions or nations or the internal colonial and colonized, war does not do anything except cause more immediate or future mass misery and human destruction. Our continued memories of our interpersonal and international and internal colonial and civil wars and the memorials we erect to remember them recall and record wounds and pains we never get over. 

So it becomes a bothersome puzzle as to why we human beings still just don’t get that war like oppression leads to nowhere except to more human devastation. And we should have learned by now but have not that peacemaking like ceasefires mean nothing without justice.

 It is the reason why I constantly find myself correcting those who stress Peace and Justice.No Justice No Peace is more than a cliche.It is real politic emotionally, economically, socially, and spiritually.

Our American inner cities like those in every continent where culturally different and similar people live cramped impoverished lives and nations and colonial enclaves with such unequal wealth remind us of their continued explosive potentialities when peace is once again declared but with no justice.Everyone deserves a decent quality of life which not only includes material necessities but more importantly emotional and spiritual freedoms and other liberations.Not just the victors who conquer and rule and not just the rich and otherwise privileged.

 And until such  justices are  assured to everyone peacemaking is merely a bandaid on cancerous societal or International conflictual soars which come to only benefit those who profit from wars which are bound to come around again when there is no justice and thus peace such as  family destroying divorce lawyers, blood hungry media to sell more subscriptions , arms dealers to sell more murderous technologies, politicians needing  votes so start and prolong wars, and military men and women seeking promotion while practicing their killing capacities.

So if those of us who devoutly practice our  faiths or our golden moral principles,  let us say always and pray and advocate justice and peace always  as a vital public good  and  do justice then lasting peace in our personal lives and insist that national leaders, our own and others do the same in their conduct of international affairs and affairs with those who are stateless in this global world. 

All such pleading is essential since we are all brothers and sisters in the eyes of God who created all of us  in God’s image as one humanity  out of  everlasting divine love for all of us so we should love each other as God loves all of us  leading to desiring justice and thus lasting peace for each and every one of us.

This is difficult for those in international affairs to understand who take more conventional secular approaches to historical and contemporary justice and peace challenges as if our universal spiritual connectivennes  ( not to be confused with the vast diversity of organized religions)as human beings which makes us all brothers and sisters has no relevance. But if we are going to find true enduring peace we have no alternative but to turn our backs on increasingly useless secular methods which go either way, stressing peace then justice or justice then peace and understand how much we must begin to explore and implement approaches which we look at each other as spiritually connected brothers and sisters in which it is the expectation that peace only comes and lasts when  through the equal enjoyment of justices for every human being, we restore our universal kindred rooted in the everlasting love of God and thus for each other, no matter the different ways in which we define God or positive moral principles which originate in understandings that we human beings in all our diversities are one and thus brothers and sisters.

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