Nr. 25 – Klinkers & Tombeur, May 2013

Papers no. 1-20 explain a) why the intergovernmental EU-system is undermining the goal of cooperation in the interests of Europe; b) why it is preferable to have a federal Europe and that Europe should thus federalize; c) that any attempts at federalization through a change of the existing EU-treaties have always failed and why they will continue to fail; d) that European Citizens thus have to design a federal Constitution themselves, as they did at the end of the 18th century in America; and e) what constitutional and institutional conditions need to be met in order to ensure that the federal system flourishes.
Papers no. 21-24 contain a draft federal Constitution for Europe, based on the American Constitution, strengthened with elements from the Swiss Constitution and adapted to present-day Europe. In this Paper the most important characteristics of federalism and the proposed European Federation will be discussed: what a Federation is, what it is not, why it is still not here and why it should be urgently adopted. Furthermore, we present the necessity for all federalists joining together for a Citizens Convention on European Constitution before the elections for the European Parliament in May 2014.

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

 

In the year 1748 Montesquieu stated in his ‘L’esprit des lois’ that a Federation has an added value compared to nation states: it combines the advantages of both smaller states that are socially stable (they can hardly disintegrate), and of larger States, which have better economies of scale, plus the power to defend themselves against external threats. The system is founded on the inalienable sovereignty of the Citizens who cede powers to the Governments of the Member States and to a federal body; powers that have to be applied to take care of the interests that the Citizens themselves cannot take care of (any longer) themselves. Furthermore, the system is founded on mutual solidarity. In this sense Montesquieu elaborated on the political philosophy of Althusius, the founding father of European federal thinking: the State starts with the Citizen, both individually and in a collective context.

In the first series of Papers we have explained what a federal system entails: a vertical division of powers, without a hierarchy: a limitative number of sovereign powers have been vested in a federal body, while all other powers remain with the Citizens and the Member States. Thus, in a real Federation there are always several centers of power – a Federation can never be a dictatorship. What is more, the several centers of power mutually guarantee each other’s continued existence. No center can be annulled by another center, unless through the agreement of all centers in the Federation, including the center that is to be annulled. This is federalism’s democratic added value: the extra dimension of a federal system through the (extremely important) vertical division of powers, besides the horizontal division, the trias politica.

Thus, this is completely different from a Confederation or a type of decentralization where the center of power always cedes power and responsibility, through a treaty, law or decision. Such power centers can always – unilaterally – take back the power once ceded. Within these two systems sovereignty is not shared, contrary to the federal system. The core, the essence of federalism, is the sharing of sovereignty, which is completely mutually guaranteed and applicable in both private and public organizations. No more, no less. That is why it is fundamentally incorrect to claim that the European Federation will be a Super State or an Empire. Such claims are based on a lack of constitutional knowledge, a serious shortcoming that has been revealed in the previous decades in Europe’s political world, a shortcoming that up until now has been insufficiently exposed by scientists and the media.

In our opinion there are ample compelling reasons to make the paradigm shift. Europe should become a Federation to gather enough means to promote the interests of the European whole and to stand up to the global competition. The European Federation would take care of the basic needs which we as Europeans have in common. Interests such as security, health and work. Within the present accelerating process of globalization Europe does not have friends, only some allies, but it does have many competitors and even enemies, especially in the field of economy. Nobody but the Europeans themselves can make the turn – no Americans, no Russians or Chinese. It is Europe’s turn to claim self-determination for the sake of jointly taking care of common values and interests. Thus, together they can maintain their freedom, security, economy and welfare. The paradigm shift has to be set in motion, now, in 2013 – the year of the European Citizen. For those who are still in doubt, we have presented in some Papers examples of Federations, established by independent states in order to improve their mutual functioning and to strengthen their position towards third States, for instance the United States of America and Switzerland. We have also presented examples of Federations which were established incorrectly, and thus went down.

If one assesses that the world’s most successful countries are Federations – Australia, Brazil, Canada, Germany, India, Austria, the USA and Switzerland – then it should be clear that being a Federation has more advantages than disadvantages. Compare the strength of these States with the European Union, which is falling apart under the pressure of national agendas, with political fault lines between the Eurozone and the rest of the EU, as well as fault lines between EU-member states.

Why then not jump off the abyss-headed intergovernmental train to a federal one? In an orderly manner: no revolution, no chaos. After sixty years of wandering around in the EU, to now arrive at the point where the whole EU is in danger. What is withholding politicians of continental Europe? Their lack of knowledge of the added value of a federal system? Their mistrust of one another? Their lack of courage towards the Citizens? We do not call upon the European politicians to integrate but to federalize, with the words by Jürgen Habermas in his book ‘The Crisis of the EU – a Response’: “These are fateful times. (…) Our lame political elites, who prefer to read the tabloid headlines, must not use as an excuse that their populations are the obstacle to a deeper European unification. With a little political backbone, the crisis of the single currency can bring about (…) a cross border awareness of a shared destiny.”

European Citizens have told decision-makers – year after year – that this intergovernmental Europe stinks. The result of polls carried out by the European Commission, the Euro-barometers, clearly indicate that public opinion is prepared to accept European governance, although from a different kind than the present EU. This is shown by an ample majority of voters who are continuously positive about a common European foreign and defense policy; circa 66% in favor of a foreign policy and even 75% in favor of a security and defense policy – in the period 2001-2008, thus before the financial-economic crisis. After 2008 the EU did not poll this opinion, at least not through the Euro-barometers. But also the two third majority (66%) of EU-citizens declaring, in May 2007, to be in favor of a European Constitution demonstrates this democratic support. Only in five member states there was no majority of Citizens pro a European Constitution, however a large minority: in Denmark 45% of the interviewed persons, in Finland and Sweden 47%, in Austria 49% and in the United Kingdom 43%. Nevertheless, the Constitution partisans in these countries outnumber the opponents. Due to the fact that a certain number of responses was of the nature 'I-do-not-know' the opponents of a European Constitution scored only from 33% to 43%; so, the partisans in those five countries account for a so called relative majority. Notwithstanding this majority-support in the whole EU in favor of a Constitution, in June 2007 the European Council decided to establish a ‘simplified treaty’ … However, that Treaty of Lisbon is the worst legal document ever written in the history of Europe.

For many years EU-public opinion has proven that a sense of European citizenship transcends nationality; even within the present economic crisis. In 2011 and 2012 62% reacted positively to the question as to whether they considered themselves a European Citizen. Nevertheless the member states’ political elites keep neglecting these opinions and continue to run in the labyrinth that has become of the EU – resulting in citizens turning away from them and from the EU. You will find on our website www.europeanfederalistpapers.eu, under the menu item ‘Information-News’, a brief description by Aisling Twomey of the result of the Euro-barometer held in November 2012: it reveals the European Citizens’ severe distrust of the democratic quality of the EU and of their national parliaments.

Since the occurrence of the systemic error in the Schuman Plan (1950) – aiming to establish European togetherness through a Treaty by Nation States rather than a Constitution by Citizens (see Papers no. 11 and 12) – Europe has been wandering around from one wrong exit to the next. Only to arrive at the dead-end street of the Treaty of Lisbon, desperately searching for the correct course: the course to a federal Europe – a course that in 1950 was strived for indeed, but never found. In 1950 a navigation tool was lacking in the form of the European version of the American Federalist Papers. Once again the facts: after eleven years of confederal muddling through, in 1787 55 people gathered in Philadelphia to decide in – only – ten days that their Treaty of the ‘Articles of Confederation’ could no longer be the all-binding document; that on the contrary, a federal Constitution – to be ratified by the Citizens of only nine of the thirteen confederal States – could guarantee freedom, stability and economic prosperity. By taking this decision the 55 delegates deviated from their assignment to change the confederal treaty. They based their decision on their knowledge of Greek, Roman and – mind you – the European political philosophical writings of their time. They knew their classics. They did.

We Europeans did not. After the Ventotene Manifest by Altiero Spinelli and Ernesto Rossi in 1941 – a passionate call for federalization in order to stop Europe’s never-ending wars – this passion was kept alive for a while with the publication, on September 19th 1946, in Luzern (Switzerland) of the so-called Hertenstein Program: twelve basic principles for a European Community along federal lines, formulated by a group of federalists in Hertenstein. It was published at the same moment when Winston Churchill in Zürich called for the establishment of a United States of Europe. However, without the United Kingdom (this aloofness can be seen even then), but only intended to put a permanent end to the infinite array of wars on the European continent. Thereafter the thinking process about European unity developed along two different lines. One tendency was to hold the opinion that unity should be realized through agreements between States: confederal intergovernmentalism. A second tendency aimed at federalization as the instrument for creating European unity; this one gained strength during the 1947 Europe Congress in Montreux, also the birth certificate of the Union of European Federalists. However, after a Congress in 1948 in the Hague the first tendency, the confederal intergovernmentalism, won. This was demonstrated in the Schuman Plan, written by Jean Monnet (1950). This Plan indicated twice – indeed – the necessity of a federal Europe (see Paper no. 12), but the instrument to be applied for this – a Treaty by Nation States – was the choice for intergovernmentalism: all powers in the hands of Government leaders, at the most in the hands of national Parliaments. History has taught where this has taken us: an increasingly dissolving Europe, dictated by nationalistic agendas.

What should Monnet and Schuman have done in 1950? They should have written the European version of the American Federalist Papers, plus a federal Constitution. If they would have done so, they would have taken – like the founding fathers in America did – the wisdoms of European philosophers as the navigation tool to find the correct course of federal thinking. Instead they gave ample room – probably led by the necessity to rebuild Europe after the devastations of World War II – to a confederal operation, by putting European decision making in the hands of government leaders, who from that moment on have never allowed that power to slip out of their hands. They began to apply their national agendas as the instrument for creating a kind of European commonality. It has to be admitted that this has been a functional approach for some years. It has sowed the seed of connectedness. But too late they realized that this tool, as of the 1990s, turned against its goal and began to destroy the weak plants of togetherness. This process of destruction was so powerful that the attempt to halt it by organizing a Convention, under the leadership of former French President Valéry Giscard d’Estaing, aimed at creating a European Constitution, failed. As of that moment the European Council produces more destruction than added value.

Let us illuminate some aspects of the approach and results of Valéry Giscard d’Estaing. During the European Council in Laken (Belgium) on December 14 and 15th 2001, European Government leaders evaluated the functioning of European cooperation. They came to the conclusion that the legal basis of that cooperation should be renewed. To that end, Giscard d’Estaing was entrusted with leading a European Convention, a debate between 217 representatives from all EU-states, from all Parliaments (both one- and two-Chamber Parliaments), from the European Commission and from the European Parliament. Besides them there were observers from thirteen candidate EU-members, from European institutions such as the Ombudsman, the European social partners, the Economic and Social Committee and the Committee of the Regions. Thus, the assembly was inspired nationally and institutionally. Wrong. Later on, participants in the Convention declared that there had been intense consultations with the national home fronts, which became visible in the achievements of the Convention… Twice wrong.

The Convention convened from February 2002 until July 2003 and produced – by consensus – a European Constitution. The German proposal to introduce a Kompetenz Katalog with a limitative list of EU-powers – the absolute essence of a federal system – was rejected. Instead, three kinds of powers were created for the EU; a complicated system that became even more complicated due to the old dogmas of subsidiarity and goal orientation (as an excuse for executing hierarchical decision-making), both the seed of a continuous tugging and pulling between the Member States and the EU with respect to making rules and policies. After half a century of wrong repairing of the EU and a decade of great changes in Eastern Europe this was all the Convention could achieve, apparently. Then this draft Constitution was ripped to pieces by national-driven negotiations between Government leaders during an ‘Intergovernmental Conference’ from October 2003 until June 2004. Thereafter, elements of the Constitution of Giscard’s Convention which had survived the negotiations were glued together in the Treaty of Lisbon.

Well, see here how the system-theoretical principle of positive feedback works, as explained in Paper no. 11: once, due to a systemic error on a wrong course, the deviation of the intended course becomes larger and larger as soon as one tries to correct the deviation. Without arguing over their good intentions, those who designed the Treaty of Lisbon actually gave birth to a monster. And those who now propose to change the EU-treaties should be stopped, because they will reopen Pandora's Box and bring even more misery over the whole of Europe. We need to stop this monster before it is too late.

We can only find the correct course by returning to the Citizens of Europe. That is why we have intended to present, 63 years after the Schuman Plan, to the European Citizens our European Federalist Papers, including a federal Constitution: in our opinion the required navigation tool to coach the ship of Europe into a safe harbor. The Citizens of Europe are the constituents, not the States or other governmental institutes, because the Citizens are there not to serve Governments but Governments are there to serve the Citizens, as we have formulated in the Preamble of our draft Constitution.

When James Madison wrote in the draft of the First Amendment – the Bill of Rights – of the federal American Constitution in 1789 "All power is originally vested in, and consequently derived from, the people... The people have an unalienable right to reform or change their government, whenever it be inadequate to the purposes of its institution", he was influenced by the French Revolution and earlier on by the social-political philosophers of Europe. For instance Jean-Jacques Rousseau (1712-1778) with his ‘Du contrat social (ou principes de droit politique)’ (1762), in the footsteps of John Locke (1632-1704) with his ‘Two Treatises of Government’ and ‘Epistulae de tolerantia’. They claimed that the Citizens are the source of sovereignty – the sovereignty of the people – that every human being should enjoy freedom and that the State should be organized as a constitutional and representative democracy. Such an organization legitimizes the designing of a Constitution. This is a contract between Citizens, only to be changed by themselves. Apparently, European policy makers have been alienated from their own political-philosophical history. That is why we, the European Citizens, must act upon the urgent necessity for a Citizens Convention on European Constitution.

Contrary to some federalists in European Parliament and elsewhere, we hold the opinion that it is strategically wrong to postpone the intended federal European Convention (similar to the one in Philadelphia) until 2015, thus following the EP-elections to be held in May 2014. The paradigm shift towards a Federation has to be supported by a majority of the Citizens – the voters who are not customers but owners – and not by Members of Parliament, elected in national constituencies. Such a support should be visible through the election campaigns and results in 2014. We do not understand what motive is underlying this postponement, the more not since the fault lines in the EU are growing larger and larger. On the one hand these European federalists advocate, with well-formulated arguments, that a federal Convention should be instrumental in transforming the intergovernmental system as soon as possible into a federal Europe. On the other hand they prefer to delay this precious moment until 2015.

We, the European Citizens, should therefore support an initiative for a federal Citizens Convention to decide upon a federal European Constitution before May 2014. And what could be a better opportunity then coming together in a Citizens Convention on a European Constitution, like the Convention of Philadelphia in 1787? Such a Convention could deliver in 2013 the draft of a federal Constitution, to be presented to the Citizens of Europe – or at least to the Citizens of the Eurozone. The result of such a process might determine the election battle in May 2014. Despite the fact that even true federalists hold different opinions about the best way to create a European Federation it is necessary that we federalists come together and close the ranks. Apparently it is up to us Citizens to do what our leading politicians omit to do – initiating a brave, honest and democratic process that brings together federalists and pro-Europeans.

This is the more enigmatic since even members of the European Commission, including President Barroso, have for the last year been subscribing to the importance of creating a Federation. Even though they use, in our opinion, the wrong words – the repeatedly advocated ‘Federation of Nations’ by Barroso is nothing other than the wrongly formulated and therefore failed Federation as foreseen in the Schuman Plan of 1950. Striving for a Federation of Nations is repeating the wrong steps, especially because Barroso and so many others calling themselves federalists, want to federalize through changing the Treaty of Lisbon. In doing so the federal idea would sink even further into the intergovernmental black hole.

Positive signals that the F-word is no longer taboo make us believe that we are on the right track and that we should continue on that track. We cannot agree more with Victor Hugo when he says “On résiste à l’invasion des armées; on ne résiste pas à l’invasion des idées” (One should oppose to invading armies; one should not oppose to invading ideas.)

To our pleasure the European Federalist Papers are read and esteemed by an increasing number of Citizens, even outside of Europe. This has led to spontaneous initiatives to further the dissemination and deepening of the Papers and our draft federal Constitution. At present, May 2013, writers in some other countries have begun translating the European Federalist Papers into their native languages. These will be published on the website upon completion.

Our striving for a federal Europe may be an in-between step in the context of a larger development towards a world consisting of a group of Federations, an ideal of the umbrella-organization World Federalist Movement, including the Democratic World Federalists. Also for other federalists the goal is already clear, laid down in 1991 in the ‘Constitution for the Federation of Earth’, designed by the World Constitution and Parliament Association (WCPA). However, we have not yet arrived there. Let us first finalize what was intended by the Schuman Plan in 1950 but not yet accomplished: a European Federation.

Then we can truly say:

 

“Annuntiamus cum magno gaudio:
habemus foederationem Europae”