Nr. 10 – Klinkers, September 2012

Paper no. 10 summarizes what Klinkers and Tombeur have attempted to clarify in the previous Papers. Klinkers briefly repeats what a Federation is and why this form of governance is superior to the present intergovernmental European system. This should settle the many misunderstandings – some of which willfully created by Europe-skeptics – regarding the true nature of a federal organization. In view of the assumption that it is no longer necessary to dwell on the differences between confederalism and federalism, Klinkers announces a new range of Papers, fully addressing questions such as: how would it be possible to build a European Federation from the current situation? And what should a Federation look like, both constitutionally and institutionally?

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

 

Esteemed Tombeur, the previous nine papers should have sufficiently explained the essence of a federal way of organizing. The interested reader will by now have a good understanding of the constituent parts of a Federation. Furthermore we have made it clear that the ideas put forward are not based on our personal opinion. What has been said about federal governance is the prevailing academic opinion, originating from Althusius’ writings (Westphalia, 1557).

We have also explained that a Federation is no usurping power. On the contrary. States taking part in a Federation do not vaporize, they do not get lost in a greater whole. They preserve their identity. And that identity gains an added value through the solidarity-oriented nature of a Federation. In a European Federation the Germans stay German, The British stay British, the French stay French and so forth. They do not lose anything. Instead, the solidarity based federal system is adding an extra value to them since that system guarantees taking care of some common interests which cannot be taking care of by individual countries alone.

Thus, this is completely different within the present intergovernmental system. That system demands uniformity throughout all Member States. Within a federation the Member States keep their sovereign singularity, thus their diversity. Decisions by Member States do not collide with those made by the federal body, for the simple reason that there is no political hierarchy, as is the case, for instance, in the decentralized unitary State of the Netherlands: when push comes to shove provinces and municipalities have to abide by decisions made in The Hague. It is precisely this informal and formal hierarchy within the intergovernmental system that forces Member States to a uniformity with which many countries, the United Kingdom first in line, have a lot of difficulty.

Due to the United Kingdom’s special relationship with the European Union we have investigated the matter of Texas in the United States. In 1861 that State left the union, together with some other states, the Federation unilaterally, without a special charter’s legitimization, bartered at the moment of entering the Federation in 1845. Texas left for fear of an active approach towards ending slavery by President Abraham Lincoln. We have to accept that the concept of federalization at that time was still in an embryonic phase. And that federalization is – as is the case with all our thinking – subject to evolution. Apparently those States could afford to step out of the Federation, just like that. But they paid a high price for this. Today, federalization is a matter of togetherness. Determining this is of great importance. It may be too heavy an obstacle for the United Kingdom: a country that will probably always try to barter an exit-agreement before joining a European Federation. This was already revealed by its absence in Westphalia in 1648. To get this land to become part of a Federation seems to be a mission impossible.

In other words: Confederalism and Federalism are two completely different models of organization. Confederalism can be compared to a marriage: ‘It takes two for a marriage; it takes only one for a divorce’. Federalism is a stronger bond than a marriage: each partner, the federal body as well as each member, has to agree with any decision to change the bond, from its establishment until its end, the dissolution. In a Confederation sovereignty lies solely with the constituent parts of the Confederation; in a Federation sovereignty is shared between the whole (the Federation) and the parts (the Member States, or whatever name they may have).

Since the first steps towards European cooperation, after World War II, Europe has never set the fundamental step towards a real and complete Federation. That is why David Marquand is right when stating in his ‘The End of the West’ that the European Union is caught in a no man’s land between federalism and confederalism.

With this we hope to have removed a number of misunderstandings about a European Federation. And let’s be honest, many of these misunderstandings were created by French, British and Dutch politicians – not coincidentally all functioning in unitary states. In doing so, they have frightened a lot of European citizens, unjustified but not without a purpose. Of course there have also been politicians whose negative utterances about Europe did not serve the purpose of political gain. They may have voiced their negative views about Europe because of a real concern about its way of operating. But in doing so, they have become victims of an optical illusion. Maybe a metaphor can clarify their misunderstanding.

All living creatures go through four phases of life. Organizations are no different: birth, development, steady state and decay. Due to the fact that – as of the 1990s – the European Union has been subject to an incredible number of alterations, not least by the Treaty of Lisbon, one holds the illusion that the intergovernmental system is still alive and kicking. But after the failed attempt at federalization, in Maastricht in 1992, this system has produced – with a lot of pain – only one baby, the euro currency. And the sole child is being neglected, because it is not fed by its fighting parents. Thereafter the European Union’s health has deteriorated and right now, as the system of communal decision-making about communal matters, finds itself in the phase of decay. To all intents and purposes it is dying.

The still perceivable signs of life are misleading, for the simple reason that on a daily basis thousands commute to their European jobs and receive a monthly salary. That is the ‘life support system’ artificially keeping the system alive. But as a matter of fact, as a vital community the European Union has already expired – this is the optical illusion. Due to the fact that its negative effects are visible and tangible, especially as a result of the inability to solve efficiently the financial-economic crisis, it is legitimate to judge the Union negatively. But one is mistaken by the real source of that legitimate criticism: the basic cause is not the halfhearted decision-making but the expired vitality of the system.

Let’s go back to the people who gain party political profit by picturing the European Union as a dangerous monster. Apparently this type of misleading is of all times. It was already mentioned by the authors of The Federalist Papers. In Paper no. 15 Hamilton warns his readers that the path from a Confederation towards a Federation is being made difficult by the many obstacles created by sofists, i.e. the advocates of confederalism. He conveys this warning by accurately summing up the shortcomings of the confederal system. Without any hesitation he states that the country will become an anarchy if the confederal system prevails. This point of view is synonymous with our statement that intergovernmental governance is eating itself from within: the EU-system, driven by national agenda’s, is on a life support system and will collapse if it does not change.

For a better understanding of Hamilton’s passionate plea it seems appropriate to cite some of his words. He talks about ‘intelligent friends of the Union’, placing the followers of confederalism in the corner for dummies. He considers confederalism as the final stage of ‘national humiliation’. And what should we say about words such as ‘constant and unblushing violation’, or ‘imminent peril for the preservation of our political existence’ as the ultimate effects of confederalism?

Those are no minor observations about the dangers that confederalism poses according to Hamilton. Then, he refutes step by step all the confederalists’ criticisms of the concept of the federal Constitution. Ending with: “Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquility, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity.”

At the core of Hamilton’s criticism is the fact that in the Confederation the principle of the legislative power is in the hands of the States, not with the citizens forming the States. We have dealt with this basic characteristic earlier: the intergovernmental governance is built top-down; the Heads of States and the Heads of Government are the ones making the decisions within the European Council, often prefabricated by France and Germany. The German philosopher Jürgen Habermas, cited by Rik van Cauwelaert in the weekly Knack, puts it bluntly: “The political elites push their elite-project through – without batting a eylid – and deprive the European citizen from his input.”

In a federal system, on the other hand, the decision-making power is organized from the bottom-up. This is the fundamental difference. This explains to some extent the unrest and dissatisfaction felt by European citizens with respect to Europe’s present system of governance. It is therefore no less than brilliant that the founding fathers of the Federal Constitution of the United States – at the Convention of Philadelphia in 1787 – have provided that concept with a Preambule, starting with the famous words: “We the people ….” It was not the participating States, not their Governments or the Heads of Government, but the people themselves who founded the American Federation. These words has led them to an extreme principle point of view: they refused to lay the draft of the Federal Constitution before the thirteen Confederal States, nor before their respective Governments, but before the people of those States. The citizens and no one else should decide upon accepting or rejecting the Constitution. And they accepted it.

Hopefully this also clarifies that a federal form of governance possesses a completely different form of sovereignty than the one we know from Westphalia 1648. The sovereignty created then was the result of the ending of dozens of wars in Europe. In essence the 1648-concept of sovereignty created a negative equilibrium between States. The boss-in-your-own-house concept was plainly hostile, in the sense that another country should not ever consider attacking you, or interfere with your business: the principles of non-intervention and non-interference. It was sovereignty as an instrument of deterring, of dividing States. A sovereignty that created the protection of the State’s territory, the own nation state, and thereafter the protection of trade interests. The peace conferences of Vienna in 1814-1815 and those of Versailles in 1919 – birth certificates of new borders between States – did not change the meaning of that Westphalian – nationalist and protectionist – concept of sovereignty.

Sovereignty within a federal system is exactly the opposite. It is an instrument creating a bond between States. The Member States, aware that their existence and survival are guaranteed within a Federation, have their own sovereign decision-making powers, untouchable by the federal body because there is no hierarchy. They use these decision-making powers to maintain, in solidarity, centripetal, one federal State: sovereignty as an instrument for creating added value. None of these Member States feels the need to articulate the preservation of its sovereignty towards other Member States or towards the federal body in terms of: “Keep off.” There is no need to be afraid that another Member State will harm them.

A growing number of States have already recognized the unique power of federalization. It is thus not strange that the United States of America are the strongest country in the world and that Germany is seen as the strongest in Europe. And Brazil in South America.

Would it go too far to predict that federalization will be the most significant characteristic of nation building in the 21st century? Until the birth of the United Nations, immediately following World War II and based on Roosevelt’s and Churchill’s Atlantic Charter (August 1941), the Westphalian principle of sovereignty was an instrument to keep States separated. Often in vain. Some kept on looking for war. Since the UN-Charter an explosion of intergovernmental governing bodies has arisen, inevitably leading to a loss of national independence and sovereignty. However, this intergovernmental system of governance seems to have a short life span. It looks like a model for a transition period: an in-between model as a bridge from the era of sovereign nation States of the Westphalian nature to sovereign nation States of a federal character. One should realize that there have been several federalizing attempts before and during the expansion of the European Union since the 1950s. The prevailing intergovernmental form of government, however, appeared to contain too many obstacles and pitfalls to get these attempts through successfully. This is typical for intergovernmentalism. Therefore it may well be only a temporary method of governance – a model of transition between the Westphalian sovereignty of the State with its division between nations, and a future, predominantly federal form of sovereignty with centripetal coherence between Member States.

In that perspective the question might be raised: would it go too far to assume or even predict that the first half of the 21st century may be characterized by a series of federalization processes all over the world? When the European Union reaches that status both constitutionally and institutionally, wouldn’t this serve as a catalyst for transforming many other intergovernmental governing bodies into federal ones? Look for instance at the hodgepodge of intergovernmental bodies in South America: the Organization of American States (OAS), the Union of South American Nations (UNASUR), the (still limited) single market of South America (MERCOSUR), the Caribbean Community and Common Market (CARICOM). If Europe steps forward and adopts a federal system, thus becoming politically and economically stronger, would it be unthinkable that Brazil would take the lead for the same process in South America? With the effect that Caribbean countries within the ACP-system (the so called African-Caribbean-Pacific-countries, mostly former colonies) will also gain a more mature relationship with the European Union? Or the other way around: since Europe has already been on a life support system for some time, wouldn’t it be a realistic assumption that upcoming existing federations outside of Europe – Brazil and India – will serve as a catalyst for the creation of a European Federation?

We shall see. Let’s try in the next paper to explain that the intergovernmental governing system of Europe never could (in the past) and never will (in the future) be transformed into a federal one if such an attempt or approach emerges from within the intergovernmental system itself.