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The Making and the Unmaking of the European Union

Emanuel L. Paparella, Ph.D.

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“The more we know of the past, the freer we are to choose the way we will go.”–Christopher Dawson

In 1932 Christopher Dawson published a book titled The Making of Europe which had enormous success and established his reputation as a scholar of incredible range and erudition who could communicate with great clarity and elegance. He had previously written two other books: The Age of the Gods (1928), and Progress and Religion (1929) but this was unique.

The book avoids the conventional burdensome footnotes, bibliographies and theoretical frameworks and reads like a romantic novel, hence its popularity. Indeed, 19th century Romanticism was a corrective to the previous century, the so called age of Enlightenment. It did this by questioning the rationalist conviction that the empirical physical sciences constituted the paradigm of all knowledge and thus reinstated Giambattista Vico’s revaluation of history against the Cartesian depreciation of it as mere gossip not worthy of a scholar’s attention.

Vico had observed that the external world of nature is ultimately impenetrable, for the human mind can only attempt to manipulate it within the strict limits set by God who created it. As Einstein also observed later on, one cannot get out of the box of time and space by using the instruments that analyze time and space. The stream of history, on the other hand, is essentially the world that the human creative spirit has made, and therefore despite its recurring mysteries, it can come to be known by humans in an incomparably deeper sense. Dawson shared this revaluation of history as did Hegel when he declared history the highest form of knowledge: the self-realization of the absolute spirit in time.

Dawson can be located in the tradition of the grand narrative conducted at the level of civilization which includes the likes of Augustine, Gibbon, Spangler, Toynbee. A tradition this which rejects the false assumption that religion and the Middle Ages in particular had failed to contribute anything essential to the characteristics of Western Civilization.

And what was the single idea, the keynote of Dawson’s thought as found in The Making of Europe? I was this: religion is the very soul of a culture, and a society that has lost its spiritual roots and moorings is a dying society, however prosperous and all powerful it may appear externally. Obviously, this is a frontal challenge of Machiavellism and its tenets on political power.

Without denying the corruption and the abuses of religion which is after all practiced by a fallible creature, the fate of our civilization was endangered not only by the fading of the vision of faith that originally formed it, namely Christianity, but the failure to integrate the world of reason and science with the world of the soul, which has lost the power to express itself through culture. In Dawson’s view this was the tragedy of modern man which come to a head in Positivism or the privileging of the material and the measurable over the ineffable and the transcendent.

Before writing his famous book, Dawson had read and pondered deeply the works of Augustine (The City of God) and of Edward Gibbon (The Decline and Fall of the Roman Empire). He was also influenced by Lord Acton’s World History, wherein Acton affirms that “religion is the key of history.” He slowly became aware of the continuity of history and of how the coming of Christianity had transformed the dying Roman Empire into a new world. Far from destroying the Roman Empire, Christianity preserved it for a few centuries longer.

He spent fourteen years of intensive study before writing his twenty some books among which Enquiries into Religion and Culture (1934), Religion and Culture (1948), Religion and the Rise of Western Culture (1950), The Crisis of Western Education (1961), The Formation of Christendom (1961). All these books dealt with the life of civilizations. The underlying idea in them was the interaction of religion with culture and subsequently with civilization.

Religion is discovered to be the dynamic element in every culture—its life and soul. Not unlike Jung, he too discovered that worship, prayer, the rite of sacrifice, and the moral law were common to all religions and so what the object of worship, and that moreover, the destiny of the human race was conditioned not only by material progress but by a divine purpose or providence working through history. Dawson also discovered that “the world religions have been the keystones of the world cultures, so that when they are removed the arch falls and the building is destroyed” (Progress and Religion, p. 140).

As he surveys the two millennia of Christianity, Dawson noted four landmarks. The first one is the new element which defines the difference between the new faith and the old mystery religions of Europe: this is the principle of a dynamic and creative spirit that inspires the whole of life. The Christian religion has a power of renewal that has accompanied it through the ages.

The second landmark was the extraordinary development in the fourth century A.D., when Constantine declared Christianity the official religion of the Roman Empire. After centuries of living on the inherited capital of the Hellenistic culture, this fountainhead seemed to run dry. Yet the achievements of Greece and Rome were not rejected by this new faith. They were merely transformed. Classical learning and the Latin language became fused with the ideals of a Christian society that was founded not on wealth, tyranny and power but on freedom, progress, and social justice. Latin became “not only a perfect vehicle for the expression of thought but also an ark which carried the seed of Hellenic culture through the deluge of barbarism” (The Making of Europe, p. 49).

The third great change of thought, according to Dawson, came about in the 16th century with the Renaissance and the Reformation, which brought an end to medieval unity.

The fourth change came about after the industrial revolution in the 19th century and led to the 20th century. In one of his last books, The Crisis of Western Education, Dawson calls our own era the age of Frankenstein, “the hero who creates a mechanical monster and then found it had got out of control and threatened his own existence” (p. 189). He had in mind atomic warfare and he argued that if Western society were to gain control over these forces there would have to be a reintegration of faith and culture, and that there is an absolute limit to the progress that can be achieved by perfecting scientific techniques detached from spiritual aims and moral values. This is similar to Einstein’s assessment of our era as one characterized by “perfection of means and confusion of goals.”

But let us go back to The Making of Europe which remains Dawson’s best-known book. In it he demonstrates that Christianity has been the spiritual force that created the unity of Western culture, indeed the commonwealth of Europe itself, from the chaotic world of myriad warring tribes. He shows in that book how the Dark Ages, the period between 400 and 1000 A.D., became a dawn witnessing to the conversion of the West, the foundation of Western civilization and the creation of Christian art and liturgy. And he then asked a crucial question: If such a transformation could happen in the age of the barbarians could it not be repeated now?

Like the founding fathers of the EU, Dawson, after the Second World War, was already envisioning a new united Europe. But he soon realized that there was a problem which faced not only Europe but America too and all societies that consider themselves Western. The problem was this: the disastrous separation of culture from its religious base brought about by the modern “barbarians of the intellect” and assorted nihilists had not been stemmed by the modern educational system which considered the study of religion superfluous and in fact aimed at its liquidation.

The unity of thought, which had prevailed in European civilization over a thousand years, was shattered by excessive specialization with the disastrous result that the educated elites could see the tree and miss the forest; moreover science, philosophy and theology had long since split apart. Education, rather than being a preparation for life, had become purely utilitarian and vocational. Humanistic studies needed to be resurrected in all schools and not preserved, almost as a relic of the past, in places like Harvard, Yale and Princeton universities as a sort of frosting on the cake of education. This was urgent since the Trojan horse of the neo-barbarians had already entered the citadel of learning and was hard at work to destroy it from the inside.

Humanism as integrated with Catholicism was at the forefront of Dawson’s speculation. It was that humanism which produced the medieval unity of the 13th century exemplifying Christian culture par excellence. For the flowering of art in every form reached its zenith in Europe between the 13th and 15th centuries with the poetry of Dante and Petrarch, the fresco painters of the Florentine school Giotto and Fra Angelico, and the sculptures of Michelangelo. It was also the age of saints and mystics, both men and women: St. Francis of Assisi, St. Dominick, St. Catherine of Siena, Julian of Norwich, Hildegard of Bingen, just to name a few.

It must be mentioned that Dawson was not advocating a nostalgic return to the Middle Ages, the so called world of Christendom; neither was he commending the external apparatus of medievalism, nor Charlemagne’s so called Holy Roman Empire, but rather “a return to the forgotten world of spiritual reality” to which these centuries bear witness. He was not recommending an evasion of the present day cultural dilemmas. He was indeed an intellectual for whom ideas were important.

Many of Dawson’s colleagues noticed a paradox in him: together with the remote facts of history, he knew of the latest current events in remote corners of the world, and understood and spoke several European languages. Indeed, he had the gift of seeing deeper and further than many of his contemporaries because he had the capacity to interpret the present in the light of the events of the past. As he put it: “The more we know of the past, the freer we are to choose the way we will go.”

To conclude, it is a mistake to think of Dawson as an anti-modern. Both he and Vico have been so misguidedly branded. Rather, what he was advocating was a retrieval of spiritual values in a godless and nihilistic world.

The reason he was assigned the first Chair of Roman Catholic Studies at Harvard University was that he had the well earned reputation of being a very broad-minded scholar, able to contemplate opposite ideas and integrate them harmoniously; something that the ancient Greeks were very good at. He was, in short, a consummate humanist who understood the universal character of a Church that brands itself as “Catholic” or universal, which belongs neither to East nor to West but stands as a mediator between the two. It was in fact his humanism which led him to conversion to Catholicism as it also happened for G.K. Chesterton, Graham Greene and David Jones. I hope that this brief sketch of a great and beautiful mind will motivate the more reflective readers to a deeper exploration of its ideas. I dare say that those ideas have the power to save our floundering Western Civilization.

Professor Paparella has earned a Ph.D. in Italian Humanism, with a dissertation on the philosopher of history Giambattista Vico, from Yale University. He is a scholar interested in current relevant philosophical, political and cultural issues; the author of numerous essays and books on the EU cultural identity among which A New Europe in search of its Soul, and Europa: An Idea and a Journey. Presently he teaches philosophy and humanities at Barry University, Miami, Florida. He is a prolific writer and has written hundreds of essays for both traditional academic and on-line magazines among which Metanexus and Ovi. One of his current works in progress is a book dealing with the issue of cultural identity within the phenomenon of “the neo-immigrant” exhibited by an international global economy strong on positivism and utilitarianism and weak on humanism and ideals.

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Whistleblower protection: EU Commission sets new, EU-wide rules

MD Staff

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Recent scandals such as Dieselgate, Luxleaks, the Panama Papers or the ongoing Cambridge Analytica revelations show that whistleblowers can play an important role in uncovering unlawful activities that damage the public interest and the welfare of our citizens and society.

Today’s proposal will guarantee a high level of protection for whistleblowers who report breaches of EU law by setting new, EU-wide standards. The new law will establish safe channels for reporting both within an organisation and to public authorities. It will also protect whistleblowers against dismissal, demotion and other forms of retaliation and require national authorities to inform citizens and provide training for public authorities on how to deal with whistleblowers.

First Vice-President Frans Timmermans said: “Many recent scandals may never have come to light if insiders hadn’t had the courage to speak out. But those who did took enormous risks. So if we better protect whistleblowers, we can better detect and prevent harm to the public interest such as fraud, corruption, corporate tax avoidance or damage to people’s health and the environment. There should be no punishment for doing the right thing. In addition, today’s proposals also protect those who act as sources for investigative journalists, helping to ensure that freedom of expression and freedom of the media are defended in Europe.”

Věra Jourová, Commissioner for Justice, Consumers and Gender Equality added: “The new whistleblowers’ protection rules will be a game changer. In the globalised world where the temptation to maximise profit sometimes at the expense of the law is real we need to support people who are ready to take the risk to uncover serious violations of EU law. We owe it to the honest people of Europe.

Whistleblowers can help to detect, investigate and sanction abuses of EU law. They also play an important role in enabling journalists and the free press to play their fundamental role in our democracies. That is why whistleblowers need proper protection against intimidation and/or retaliation.Citizenswho uncover illegal activities should not be punished as a consequence of their action. But in reality, many of them pay for their action with their jobs, their reputation or even their health: 36% of workers who reported misconduct experienced retaliation(2016 Global Business Ethics Survey). Protecting whistleblowers will also help safeguard freedom of expression and media freedom, and is essential to protect the rule of law and democracy in Europe.

Protection for a wide range of EU law breaches

Today’s proposal ensures EU-wide protection for blowing the whistle on breaches of EU legislation in the fields of public procurement; financial services, money laundering and terrorist financing; product safety; transport safety; environmental protection; nuclear safety; food and feed safety, animal health andwelfare; public health; consumer protection; privacy, data protection and security of network and information systems. It also applies to breaches of EU competition rules, violations and abuse of corporate tax rules and damage to the EU’s financial interests. The Commission encourages Member States to go beyond this minimum standard and establish comprehensive frameworks for whistleblower protection based on the same principles.

Clear Mechanisms and Obligations for Employers

All companies with more than 50 employees or with an annual turnover of over €10 million will have to set up an internal procedure to handle whistleblowers’ reports. All state, regional administrations and municipalities with over 10,000 inhabitants will also be covered by the new law.

The protection mechanisms will have to set up must include:

  • Clear reporting channels, within and outside of the organisation, ensuring confidentiality;
  • A three tier reporting system of:
  • Internal reporting channels;
  • Reporting to competent authorities – if internal channels do not work or could not reasonably be expected to work (for example where the use of internal channels could jeopardise the effectiveness of investigative actions by the authorities responsible);
  • Public/media reporting – if no appropriate action is taken after reporting through other channels, or in case of imminent or clear danger to the public interest or irreversible damage;
  • Feedback obligations for authorities and companies, who will have to respond and follow-up to the whistleblowers’ reports within 3 months for internal reporting channels;
  • Prevention of retaliation and effective protection: all forms of retaliation are forbidden and should be sanctioned. If a whistleblower suffers retaliation, he or she should have access to free advice and adequate remedies (for example measures to stop workplace harassment or prevent dismissal). The burden of proof will be reversed in such cases, so that the person or organisation must prove that they are not acting in retaliation against the whistleblower. Whistleblowers will also be protected in judicial proceedings, in particular through an exemption from liability for disclosing the information.

Effective Safeguards

The proposal protects responsible whistleblowing genuinely intended to safeguard the public interest. It therefore includes safeguards to discourage malicious or abusive reports and prevent unjustified reputational damage. Those affected by a whistleblower’s report will fully enjoy the presumption of innocence, the right to an effective remedy, a fair trial, and the right of defence.

Background

Protection given to whistleblowers across the EU is currently fragmented and uneven. Only 10 EU Member States currently ensure that whistleblowers are fully protected. In the remaining countries, the protection granted is partial and only applies to specific sectors or categories of employee.

The Commission’s proposal builds on the 2014 Council of Europe Recommendation on Protection of Whistleblowers, which recommends that “member states have in place a normative, institutional and judicial framework to protect individuals who, in the context of their work based relationship, report or disclose information on threats or harm to the public interest” and sets out principles to guide states when introducing or reviewing such frameworks.

The Council encouraged the Commission to explore the possibility of future EU action in its Conclusions on Tax Transparency of 11 October 2016. Civil society organisations and trade unions have consistently called for EU-wide legislation to protect whistleblowers acting in the public interest.

The Commission committed to take action to protect whistleblowers, as journalist sources, at the second Annual Colloquium on Fundamental Rights in November 2016, which was on the theme of ‘Media Pluralism and Democracy’.

Strengthening whistleblower protection also gives effect to the Commission’s commitment to put a stronger focus on enforcement of EU law, as set out in its 2016 Communication on EU Law: Better Results through Better Application

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Will the EU split into the East and the West?

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On March 1, 2018 the European Parliament has adopted a resolution initiating a disciplinary procedure against Poland. Warsaw is accused of violating a number of fundamental democratic principles of the EU. If the Polish government does not agree to make concessions, the country may for a time be deprived of the right to vote in the European Council.

The problem is that to implement such a decision, the consent of all EU member-states is needed. Meanwhile, Hungary, against which charges of the same kind have been brought, can block sanctions against Warsaw.

According to many observers the increased tensions within the EU reflect not just the “growth of nationalistic sentiments” across Europe. Analysts, as well as high-level politicians, including French President E. Macron, are already openly talking about the EU’s moving towards “Europe of two speeds”. How serious is the threat of increasing contradictions between Europe’s east and west?

The “right”, “anti-liberal” turn has been observed in Europe for the last 20-25 years and not only in the new EU members but throughout the continent. According to the BBC  in 2000 the average share of those who voted in the European countries for “populists” was 8%, at present it is about 25%. Michael Abramowitz and Nate Schenkkan of The Foreign Affairs note that now Islamophobia, “persecution of NGOs”, stiff rejection of EU policies  and fear of migration  play a key role in strengthening the positions of conservative and nationalist politicians -“populists” not only in Hungary, Poland, Austria and the Czech Republic. Similar ideas are spreading rapidly in the political discourse of almost every European country. More and more often “populists” are becoming potential partners in forming coalition governments. Thus, many political forces in Central and Eastern Europe, are increasingly rejecting the “EU pressure” because it is associated with sovereignty restrictions.

The embodiment of these trends was a series of political upheavals that occurred in Europe in 2017. First, both system-forming parties – the Socialists and the Republicans – suffered a crushing defeat in the French presidential and parliamentary elections. Then  to the unexpected surprise of most observers the “most serious political crisis since the unification” began in Germany – negotiations for the creation of the ruling coalition lasted more than 6 months, ending only in March 2018. Finally, in December 2017, a new government was formed in Austria, which included the conservative People’s Party and the far-right Freedom Party. Clearly there is no talk about Vienna’s withdrawal from the EU. Nevertheless, the new Austrian ruling coalition has its own idea of the ways of reforming the EU – a very different one from the approaches of Germany and France. Chancellor Sebastian Kurz does not conceal his desire to limit the EU’s spheres of influence. Some commentators say that by this he strongly resembles some of his colleagues in Central and Eastern Europe, also dissatisfied with attempts to centralize power, undertaken by Brussels.

The highlight of the clash between different concepts of the European Union’s future was the judicial proceedings initiated by the European Commission against Poland “for political interference in its justice system” on December 20th, 2017.

In these conditions, on the one hand, both the new cabinet of Merkel as well as the French president who is facing ever greater resistance to his ambitious reform plans have even more serious doubts regarding the ability to “initiate the process of renewal of the European Union”. On the other hand, “the events which happened in the end of 2017 in Brussels, Budapest, Warsaw, Prague and Vienna are the unambiguous alarming evidence that the EU encounters an existential dilemma in confronting the nationalist leaders of Central Europe led by Poland and Hungary“. Meanwhile, the Euro zone crisis and the Brexit remain on the agenda. As a result, the well-known Russian expert Fyodor Lukyanov says: Europe turns to itself, and “the future of the continent” has not been so vague from the middle of the 20th century. ”

Political contradictions are closely intertwined with the economic ones. The work of well-known economists Filip Novokmet, Thomas Piketty and Gabriel Zucman published in 2017 bluntly call Eastern European nations “foreign-owned countries”. On the one hand, a stable inflow of investment provides economic growth and high employment. On the other hand, such a high dependence on foreign capital in the economy is fraught with serious shocks, in case a country, for some reason, loses its investment attractiveness. As historical examples show, the “flight” of foreign investors, as a rule, provokes a surge of unemployment, a deep decline in the economy,  collapse of the banking system.

Meanwhile, after the UK leaves the European Union the annual budget of the EU will decrease by at least 10 billion euros. In this regard, the issue of decreasing subsidies to member countries, which will primarily affect the poorest countries, is being actively discussed. This “foreshadows yet another clash of the east and west of Europe.” Moreover, “some countries were told that their rejection of liberal values might be the reason to reduce their subsidies”. In response, the leading countries of Central and Eastern Europe “unequivocally say to Brussels: we are not your colonies”. In these conditions, “the Battles of Eastern and Western Europe threatens to slow down, or even completely slash to zero, a decade and a half of integration processes, and in a broader sense raises the question: is the EU united on the basis of common economic interests or common values?”

At the same time, the issue of Poland, Czech Republic or Hungary leaving the EU is not on the agenda. There are no objective reasons for this. The current CEE leaders largely owe their popularity to high rates of economic growth, the key factors of which are EU subsidies and foreign investments. Membership in the European Union is very beneficial for Eastern Europeans, as they receive more from Brussels than they give. Especially when it comes to issues of political and economic security. Formal belonging to the “West”, one of the main symbols of which is Schengen, is also very important for the overwhelming majority of citizens of these states from the psychological and philosophical point of view. The EU will also not give up Eastern European members, since the economic benefits of investing in growing economies, as well as export earnings to Central and Eastern Europe, are one of the main sources of growth for the whole Union. In addition, the experience of recent years has shown that with the problems of “Romanian corruption”, “Hungarian authoritarianism”, “Polish attacks on courts” and border disputes, like the Slovenian-Croatian one, “it is much easier to fight when the country is already included in pan-European structures,” Maxim Samorukov of the Russian Carnegie Center says.

The problem is that Brussels seems to have chosen a strategy that is very risky in the current circumstances, designed to “restore  the Union’s  self-confidence” – through a new expansion. In February 2018, the president of the European Commission, Jean-Claude Juncker, announced the strategy of joining the EU (until 2025) of at least some of the six states of the Western Balkans. According to Brussels’s plan the admission of new members should convince the rest  to abandon the privileges of individual countries and delegate more authority to the “center.” The question is about taking decisions not by consensus but by the majority, as well as about developing mechanisms for monitoring compliance with common rules by member-states and punishing violators. The ultimate goal is “supranational institutions that will gradually take away key functions from the least competent national governments“.

However, experts at the American think tank Stratfor say that “the enthusiasm for the EU enlargement has largely dried up”. Besides, the Eastern European capitals are hardly to like the real goal of the EU reform, for which the leading “old” members of the club advocate – to minimize the chances of the CEE countries to play on the contradictions between the world powers. And even if those who believe that “at the heart of all such games there is always a desire to knock out as many financial preferences as possible from the European Union are right,” the population of Central and Eastern Europe is experiencing a growing anxiety and irritation as a result of realization that, if such trends continue in the politics of Brussels, the dreams of “life as in the West,” under whose auspices people often had to give up their national interests, will never come true. Meanwhile, to succeed in global competition, there is a need to limit or even reduce the “main achievement of the European” welfare society “- its social systems. This is increasingly spoken about in the old EU members.

Only time will tell whether the trends analyzed above are long-term.

If most of the CEE countries will not get rid of the “restricted, one-sided point of view”, according to which their national interests do not go beyond their state borders, then the ideas of the “all-European home” will remain only beautiful slogans for both the society and a large part of the ruling class. The real policy will remain at the level of “tactical pragmatism”, which will focus on those slogans and ideas, which at the moment are most in demand by voters. Even if it is a question of EU-scepticism and national populism. Probably, in the center and the east of the EU, a “new Eastern bloc” will be formed – led by the countries of the Visegrad Group (Hungary, Poland, Czech Republic, Slovakia), but not limited to it. The countries of this “bloc” will promote the idea of the “Europe of Nations”: the transformation of the European Union into a confederation of independent states, united by a common free trade zone and “a few  supranational functions.”

Thus, tensions between the east and the west of the European Union threaten to become its main headache in the coming years. “Pessimists predict the emergence of situational alliances within the EU that threaten to paralyze the work of its political institutions,” the BBC said. Thus, the initiative to expel Russian diplomats in connection with the “Skripal affair” in the end of March 2018, among other EU member states, was not supported by Austria and Slovakia. On the whole we can assume that the evolution of the future European order has only just started and will continue for several decades.

First published in our partner International Affairs

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How Can Parity Be More Proportional?

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International diplomats located in Bosnia-Herzegovina have recently launched an initiative requesting the Parliament of one of Bosnia-Herzegovina’s two entities, the Federation, to reconstitute its upper chamber, the House of Peoples, in line with „more proportional representation“. Yet, how can representation in the House of Peoples be more proportional, when already based on the principle of parity? Sounds absurd, doesn’t it? Representation can be based either on the principle of proportionality or on the principle of parity. When based on the principle of parity, it cannot possibly be more proportional. Moreover, such an initiative encroaches on the sovereign right of that very Parliament to constitute and reconstitute itself, without external interference.

Indeed, what does sovereignty mean in the present-day Bosnia-Herzegovina? In the rest of Europe it has been adopted, almost axiomatically, in the traditions of both Locke and Rousseau, that sovereignty is indivisible and inalienable. For, the will of the people, as the expression of sovereignty, can not be divided; otherwise, it ceases to be the will of the people and becomes a collection of individual wills and then the people can only be a collection of individuals. Also, sovereignty can not be alienated from its bearer: power may be transferred, but not will; it is impossible for any organ to exercise the sovereign will save the sovereign body itself. The state, as a state, can no more alienate its sovereignty than a man can alienate his will and remain a man. There is but one possible bearer of sovereignty, the people.

In Bosnia-Herzegovina, it has been accepted, no less axiomatically, in the tradition of its long-negotiated partition sponsored by international envoys, that this country’s sovereignty can easily be divided, alienated from its people as a whole and transferred to its constituent ethnic elements and then consumed by its three ethnic oligarchies in the form of unrestrained political power over the pieces of territory assigned to them in the process of partition. Actually, such a divided sovereignty is treated as transferred to these oligarchies and consumed in the form of their private property over the resources found on the given pieces of territory.

Thus, whereas sovereignty is elsewhere treated as generated by a contract signed by free individuals, who thereby constitute themselves as the people and sovereignty as their general free will, in Bosnia-Herzegovina sovereignty is treated as dissolved by a contract signed, under the auspices of international envoys, by its three major ethnic groups, renamed for that purpose as ‘constituent peoples’, who thereby construct only a provisional state structure with no declared or acting bearer of sovereignty. ‘Constituent peoples’ are perceived as the contractors who should presumably be represented on the basis of the principle of parity in the parliamentary institutions, on the levels of both state and its two ‘entities’ (Federation of BiH and Republika Srpska), and it is only their three wills that are taken into account, although even they are not treated as sovereign, either, but only as dependent on each other’s acquiescence.

Moreover, yet another part of the country’s divided sovereignty has been transferred to the so-called High Representative (a diplomat appointed by major international powers), whose will may reign supreme over particular wills of the oligarchies claiming to represent their respective ‘constituent peoples’. In this sense, as a part of the country’s Constitution, the High Representative comes closest to the notion of the sovereign, although in practice this person rarely exercises his will and imposes his decisions on the three oligarchies in question. Still, the position in the Constitution makes the High Representative irremovable from the country’s legal structure, in spite of the permanent efforts of the three ethnic oligarchies to eliminate this potential threat to their unrestrained power.

Yet, is such a multiple division and transfer of sovereignty truly a part of the Bosnian Constitution, or it is rather an arbitrary interpretation of the country’s constitutional structure by both foreign diplomats and local politicians? In the preamble of the country’s Constitution one can really find its sovereignty divided among several different categories, positioned as sovereignty’s bearers:

Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows.(The Dayton Peace Agreement, Annex 4, The Constitution of Bosnia-Herzegovina)

A similar formula can be found in the Washington Agreement (1994), which preceded the Dayton Peace Agreement (1995) and served as the basis for creation of the Federation of BiH, as one of Bosnia’s two entities:

Bosniacs and Croats, as constituent peoples (along with Others) and citizens of the Republic of Bosnia and Herzegovina, in the exercise of their sovereign rights, transform the internal structure of the territories with a majority of Bosniac and Croat population in the Republic of Bosnia and Herzegovina into a Federation, which is composed of federal units with equal rights and responsibilities.

Here sovereignty is divided between Bosniacs, Croats and others – whatever their ethnic identity or a lack of identity – and they are all treated as possessing a double identity,first as constituent peoples and then as citizens of the Republic of Bosnia and Herzegovina. For, the form ‘constituent peoples (along with others)’ presupposes that ‘others’ – whatever their ethnic identity or a lack of identity – are also to be treated as ‘constituent peoples’, along with Bosniacs and Croats. By analogy, Bosniacs, Croats, and Serbs, along with Others, are to be treated as both ‘constituent peoples’ and ‘citizens of Bosnia and Herzegovina’ in the Dayton Peace Agreement’s Annex 4.But who can actually be proclaimed the bearer of sovereignty on the basis of these two constitutional acts?

Following the modern theories of sovereignty mentioned above, if sovereignty is to be regarded as indivisible and if, accordingly, there can be only one bearer, then the bearer must be the citizens of Bosnia-Herzegovina, acting as a whole. Then the ‘constituent peoples’ (Bosniacs, Croats, and Serbs, along with Others) are to be understood simply as the constituent elements of the whole, which cannot be treated as multiple bearers of sovereignty. And then the citizens may be represented in a unicameral parliament, founded on the principle of proportionality.

On the other hand, if we take sovereignty as divisible, the ‘constituent peoples’ maywell be regarded as its multiple bearers. Then, however, these ‘constituent peoples’ are not to be reduced only to Bosniacs, Croats and Serbs: the preambles used in both of these constitutional documents suggest that the category of Others is to be regarded as equal to the categories of Bosniacs, Croats and Serbs.

Constitution makers, obviously, had no clear answer to the question of sovereignty’s (in)divisibility in the case of Bosnia-Herzegovina: instead of a formulation that would follow the principle of sovereignty’s indivisibility (for example, „Bosniacs, Croats, and Serbs (along with Others) as citizens of Bosnia-Herzegovina“), they introduced the ‘constituent peoples’ as parallel to the citizens of Bosnia-Herzegovina and thus proposed a form of shared sovereignty between the citizens and the ‘constituent peoples’. This shared sovereignty is reflected in the structure of the parliamentary institutions of Bosnia-Herzegovina and both of its entities: all the parliaments are bicameral, the lower chambers representing the citizens on the basis of election results in accordance with the principle of proportionality, and the upper chambers representing the ‘constituent peoples’ on the basis of the principle of parity.

Yet, even such relative consistency has ceased to exist in the practical implementation of these two principles. In the the upper chamber of the Parliamentary Assembly of Bosnia-Herzegovina, the House of Peoples, the principle of parity is applied only to representatives of Bosniacs, Croats and Serbs (each represented with 5 seats), while Others are totally absent, as if they do not exist in the Constitution’s preamble among ‘constituent peoples’, along with Bosniacs, Croats and Serbs. In the upper chamber of the Parliament of the Federation of BiH, the House of Peoples, the principle of parity is again applied only to representatives of Bosniacs, Croats and Serbs (each represented with 17 seats), while the number of representatives of Others is arbitrarily reduced to only 7 seats, as if Others are not to be found among ‘constituent peoples’ in the Constitution’s preamble, along with Bosniacs, Croats and Serbs, and as if the principle of parity can be applied selectively or in some reduced manner. Similarly, in the upper chamber of the Parliament of Republika Srpska, the Council of Peoples, parity is applied again only to Serbs, Bosniacs and Croats (each represented with 8 seats), while Others are represented with only 4 seats, as if they have not been put into the category of ‘constituent peoples’, along with Serbs, Bosniacs and Croats. In other words, even if we theoretically accept the possibility that sovereignty may be divided between the ‘constituent peoples’ and the citizens of Bosnia-Herzegovina, such shared sovereignty is in its constitutional implementation distorted to such an extent that only Bosniacs, Croats and Serbs are recognized as ‘constituent’, whereas Others are sometimes treated as partially constituent, with a reduced number of seats, and sometimes as non-constituent, that is, practically non-existent!

Obviously, when the principle of parity is applied in such a selective manner, it ceases to function as parity. Otherwise, Others would be represented in all these parliamentary institutions on the basis of parity, along with Bosniacs, Croats and Serbs. And then, it only means that Others have been permanently discriminated in the political reality of Bosnia-Herzegovina and that such a constitutional discrimination must be removed if the model of shared sovereignty is to be applied at all. If not, then full sovereignty must be given back to the citizens of Bosnia-Herzegovina, regardless of whether they link their identity to any of its ethnic groups or not. And that has to be reflected in the structure of all its parliamentary institutions: the Houses of Peoples should be abolished and the parliaments should then become unicameral, so that only the citizens would be represented in the Houses of Representatives, based on the principle of proportionality and the principle one person/one vote. Of course, for that purpose the country should get a new constitution, adopted by its own Constitutional Assembly, instead of the one tailored in such an inconsistent (and theoretically problematic) manner by foreign diplomats as a part of the international peace treaty.

However, the international diplomats calling for „more proportional representation“  obviously do not distinguish between, and directly mix up, the principle of proportionality and the principle of parity. They assume that the House of Peoples in the Parliament of the Federation of BiH is based on the principle of proportionality, and ask for more proportionality, although it is clear that parity is its sole founding principle. For, political representation can either be proportional, reflecting the proportion of actual votes for actual political parties and candidates, or it can be based on parity, reflecting the parity between the constituent elements of the entire constituency (presumably, of the country’s population as a whole). As already noted above, it is the principle of parity in the House of Peoples that has been violated by under-representation of Others: while Croats, Bosniacs and Serbs are all represented with 17 seats in this House, Others are represented with only 7 seats. Yet, the diplomats do not pay any attention to this violation of the constitutional principle of parity. Instead, they suggest the Parliament to adopt even „more proportional representation“ in its upper chamber (which, in practice, can only be over-representation of one of the groups already represented in line with the principle of parity), so as to even further undermine its founding principle of parity, already violated by the existing under-representation of Others!

Such a legal absurdity is certainly unsustainable and can only lead to the total dissolution of the existing constitutional order in Bosnia-Herzegovina, already distorted by the abandonment of the principle of indivisibility of sovereignty and further undermined by the selective implementation of the principle of parity in the parliaments’ upper chambers. This brings us to a crucial point: either the parliamentary structures in Bosnia-Herzegovina will follow the logic of this request, abolish the existing provisional constitutional order and leave the country without any constitutional order whatsoever, or they will abolish this constitutional order and establish a non-provisional one, based on the principle of sovereignty’s indivisibility, reflected in a unicameral parliament, representing only the citizens of Bosnia-Herzegovina as a whole, regardless of their ethnic identity or a lack of it.

It is up to the parliamentarians. They may follow the principle of sovereignty as applied in the rest of the European countries, or obey the diplomats’ request, whatever the price for the country’s constitutional order. As for the diplomats, whoever they are, one should finally ask whether they would ever apply in their own countries any of the models they advocate for Bosnia.

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