Nr. 1 – Klinkers, August 2012

Here the dialogue starts. Klinkers opens with three Papers. In Paper No. 1 he points out why he considers the current intergovernmental form of Government inferior to a federal system. In the existing European Union the national interests of the Member States prevail. Persisting within this construction will, in his opinion, lead to the disintegration of Europe. Only a federal organization can keep Europe together. He asks Tombeur to challenge, to improve or to confirm his statements in later Papers. Klinkers consistently draws from historical references of thinking in terms of federal forms of organizing.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

Esteemed Tombeur, I feel the need to substantiate our conversations on federalizing. I am a confirmed European federalist. However, if someone asks me to argue this statement, then I quickly reach the end of my words. And you know one of my truisms: “Everyone can talk, but if you can't write it down, then it does not count.” So it is time to base my position on convincing facts and arguments. A documented quest for the Why of a federal Europe. And thus also an exploration of the How: what constitutional and institutional form can such a Federation have and how do you get the majority of the European population in favor of a federal Europe?

You are schooled in the essence of federalization. I would appreciate it if you would help me with navigating a path through the jungle of facts and arguments that argue in favor of a European Federation, or that you would indicate arguments that we must abandon that idea.

I will first tell you why I think the European Union’s current intergovernmental operating system can no longer serve as the form of Government of the Union. Then I will describe what a federal form of Government in essence is. Please tell me then what I see wrongly or interpret badly; or how my position could be substantiated with better facts and arguments.

I propose that we divide our dialogue into large blocks. First we dive into the history, by placing the concept of federalization in a historical context, explaining the essence of a Federation and why – on the basis of facts and present-day arguments – a federal organization would be preferable above the current intergovernmental system of Government. From there we should talk about various legal and organizational aspects, since the constitutional and institutional elements will also occupy an important place in our thinking. Aren’t we obliged by our legal backgrounds to design a Federal Constitution for Europe? Simple, compact and in no way resembling the legal monster which goes by the name of the Treaty of Lisbon ; embedding our considerations in a cultural context, and that of State- and nation-building and societal appreciation – in favor or in opposition – for the federalization of Europe. Our writings might occasionally overlap one another, but we will see how we handle that.

For a responsible commentary on the current European operating intergovernmental system I should go back to the Peace of Westphalia of 1648. This ended the ‘thirty years war’ within the former Holy Roman Empire and the ‘eighty years war’ between Spain and the Republic of the seven United Netherlands. Formally, the Peace of Westphalia was settled by one peace accord and two treaties: the Peace of Westphalia on 30 January 1648 between the Netherlands and Spain, followed by the Treaty of Münster and the Treaty of Osnabrück simultaneously on 24 October 1648. The Treaty of Münster established new relations between the Roman Emperor Ferdinand III and France with its allies. The Treaty of Osnabrück established new relations between Ferdinand III and Sweden with its allies.

Apart from the joy surrounding the end of the prolonged, inconceivable bloodshed, 1648 demonstrates an essential turning point in State-thinking. It is the birth certificate of the concept of sovereignty and thus of State- and nation-building. ‘Rome’ was, until then, not only the primary religious force in the world, but also the secular driving force. That stopped in 1648. With the peace-by-treaty individual States were granted sovereignty within their own borders: master of their own house. No longer had any State the right to invade, or to demand accountability from another country. Equality between States became the watchword. Balance of power between European States, irrespective of the question to what extent the boundaries between those States were drawn in a realistic manner. It also marks the arrival of diplomatic relations in a context of international law.

It would be incorrect to state that this was the first time that the notion of ‘sovereignty’ was used. William of Orange had previously told the Spanish conquerors that the parts of the Netherlands that had entrusted themselves to his care, were sovereign. However, his statement had only political significance, not yet backed by international law – just as the Declaration of Sukarno and Hatta, immediately following World War II in 1945, was supposed to create the sovereign Republic of Indonesia, independent of the Netherlands. This legal and internationally recognized sovereignty was not reached until the end of December 1949, by the conclusion of a Treaty in The Hague, establishing the Federation of the United States of Indonesia. This was against the wishes of the Javanese Sukarno, who had always fought for a Unitarian State. Thus, a week after the Treaty in the Hague, he began to dismantle the federal system, giving the Moluccans, who were member of the sovereign South Eastern part of the Federation, reason to answer Sukarno with the Proclamation of their own independent State, Republik Maluku Selatan (Republic of the South Moluccas, RMS) on 25 April 1950. Mid-August 1950 Sukarno succeeded in the dissolution of the Federation. From that moment onwards Indonesia became a Unitarian State and the Moluccans became the losing party, geopolitically. I find this a necessary parenthesis, because this Indonesian story raises questions that are relevant to me in our correspondence about Europe – for example, with respect to the question whether a Federation can have several centers of power versus a unitarian state with only one centre of power. Furthermore, this example seems important in the light of a question that has been bothering me for years, namely whether more federations have failed. Maybe you could elaborate on this in the course of our work?

This concept of the Westphalian sovereignty would last about three hundred years, until 1945. There were wars between 1648 and 1945, despite every nation being master of their own house. But in the last tremendous world conflict, World War II, the crisis was so severe that all more or less failed previous attempts to achieve a sustainable world peace – including the League of Nations of 1919, the initiative of US president Woodrow Wilson – disappeared into the background, due to the creation of the successful United Nations, supported by the Charter of the United Nations (UN) in June 1945. This was a new turning point in State-thinking. The hesitant steps from the League of Nations to make agreements about mutual rights and obligations in the form of treaty-based international organizations, put an end to the 1648-Westphalian concept of sovereignty.

Let’s be clear about this, as of 1945 the 1648 type of sovereignty no longer exists. Since the United Nations was established, a large number of international organizations have been created at an incredible pace – many of them under the umbrella of the UN, but also many outside this. Although each of the 190 countries or so in the world claims to be a sovereign State, this is – within the original meaning of that word – for more than 50 years no longer the case. Each country that is a member of a treaty or of an international body is held accountable for its actions within the context of that treaty or membership. Moreover, with a UN mandate, the UN soldiers, the so-called Blue Helmets, can invade any country guilty of a serious violation of the Charter. So much for sovereignty.

Thus sovereign States – such as referred to in 1648 – no longer exist since 1945. The claim that a federal Europe robs its Member States of their sovereignty, is therefore nonsense. They have long ceded in full awareness an important part of their sovereignty. Why? Because the group is greater than the sum of its parts. That is why Europe, as of the 1950s, steadily worked on the creation of what is now the European Union, an international organization of high standing. However, as you and I will explain: anno 2012 that Union is ‘clinically dead’.

The question is: how should we interpret the constitutional position of the countries that belong to international organizations? For this position a new legal concept has been created: the intergovernmental system. In short, intergovernmentalism is a specific way of decision-making within international organizations. That type of decision-making grants exclusive power to the affiliated member States, which in principle decide unanimously. In other words, States within an intergovernmental system do not have a controlling body above them. Where that is the case (a controlling body above) we usually speak of a supranational organization. In the European Union – just as is the case with most international organizations – the emphasis is on a high degree on intergovernmentalism, larded with embers of supranational decision-making. Mainly, the heads of Government of the Member States decide, within the European Council, what has to happen within the European Union. The Member States have created a strong bond by addressing common interests, but when push comes to shove they can step out of that cooperation, or be put out. Therefore, strictly speaking, the intergovernmental system is close to a Confederation; especially also due to the fact that in 2005 the legal basis of their bond was not allowed to be called a Constitution. The intergovernmental character of the European Union is based on the Treaty of Lisbon, signed in 2007 and in force as of 2009. Despite the efforts to make it look federalist, it still has the typical basis of a Confederation.

 

The intergovernmental decision-making takes place within the context of the European Council, the heads of Government, and councils of specific Ministers. And here is the rub. The heads of Government within the European Council, along with the separate councils of Ministers approach, more than ever before, the international decision-making table with a national agenda in their pocket. This process started surreptitiously after the Maastricht Treaty signed in 1992, when a Dutch attempt to lay the basis for a federal Europe was flat out rejected. If this, as is claimed, had to do with a quarrel between Helmut Kohl and Ruud Lubbers on the reunification of East Germany and West Germany should be excluded here. The fact is, however, certainly after the introduction of the euro currency, ten years later, that the anti- European Union feelings are gradually strengthened and no Government leader manages to get from his people or Parliament the mandate to behave in Brussels as a European: own country first is the slogan. In the words of Guy Verhofstadt in his book The United States of Europe: “European summits have degenerated to an arena where points should scored in the country’s own interest. Only now and then you hear still convincing interventions in defence of the European general interest.”

I am sorry to say that I, as a Dutchman, must unfortunately acknowledge that precisely my country is showing, since the introduction of the euro, skepticism and even shameless aversion by its leaders towards the European Union. The newspaper de Volkskrant of August 4, 2012 describes in clear terms, under the title The European patience with scoundrel  Netherlands comes to an end, how Prime Minister Mark Rutte is performing within the European Council: braking hard when it comes to more political integration. Not something to be proud of if you take into account that the Netherlands for many decades were known in the world for their avant-garde mentality.

This state-nationalistic virus has spread throughout the European Union: the mentality of 'own country first’ is unfortunately not only performed by the Netherlands. It is common to all countries. Therefore, around intergovernmental decision-making, is the lingering smell of permanent loss, the typical byproduct of protectionism. If you have to cut down on your national agenda in favor of a greater general interest, you always return home as a loser. And even if the national Ministers score any success, then they claim that as a token of their merit, not those of Europe, while every disadvantage for their own State is attributed to the Union. This is eating away at the credibility of the Union. National parliaments and societies, whether or not stirred up by EU-critics, are blaming the heads of Government that more and more national sovereignty is handed over – without realizing that the original Westphalian sovereignty no longer exists. European decision-making must be far-reaching, especially now that the Eurozone is at stake, but the space that Government leaders get of their own countries is limited.

This will inevitably go wrong. The European Union is being eaten away from within. And that is caused by the actual structure of the intergovernmental system. At least at present. It started successfully in the 1950s, because another decision-making model was unavailable and because the need to make daring decisions by heads of Government was obvious, the intergovernmental operating system of that time was not to blame. The achievement of economic integration was a great step. Only when in 1992 the choice between deepening or enlargement, and the need for political unification came to order, as a necessary stronger foundation for the Economic Union, the intergovernmental operating went from bad to worse: it lost its instrumental function to European cohesion. When the step had to be put to an organization model that economic integration could be sealed with a political Union, the responsible statesmen backed off. From that moment on the system no longer functioned. Moreover, the heads of Government have since then travelled on the wrong path of the intergovernmental decision-making in the wrong direction. Eventually resulting in the negative referenda in France and the Netherlands in 2005: denouncing strongly the draft of a federally tinted European Constitution, requiring to transform that draft into an intergovernmental Treaty (read Confederal): the Treaty of Lisbon.

As a result, we now have in the European Union no fewer than four persons who may argue that they are President of the European Union: the President of the European Parliament, the interim President of the European Union, the President of the European Commission and the President of the European Council. Who could ever create a situation like that? What organization can cope with this? Even worse: the actual decisions are taken by the heads of Government of Germany and France, while having no formal powers to do this. It could not be any stranger. This is highlighted by the fact that the President of the United States does not know who to contact within the European Union.

After all, the half-hearted decision-making to combat the economic crisis says enough. This operating system has an inbuilt process of reinforcing ‘Verelendung’ (deterioration). That manifests itself, among others, by answering each new failure with more rules and measures, the archetypal reaction to the break down of an administrative system.

My statement is thus that we can only end this downfall of European intergovernmental decision-making by eliminating the intergovernmental operating system completely, in favor of a European Federation.