Federalism, Regions, Europe and the World
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Lucio Levi
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Professor in Comparative Politics at the University of Torino
Member of WFM Executive Committee and UEF Federal Committee
In June 1999 the Cologne Summit decided that the citizens’ “fundamental rights at Union level should be consolidated in a Charter and thereby made more evident”. It was therefore clear from the start that, while the European Parliament and many NGOs took the view that this new Charter should have legal standing, this was not the Summit’s intention.
Drawing up an EU Charter of rights was nevertheless an important innovation. It was to include [a] ”fundamental rights & freedoms as well as basic procedural rights guaranteed by the European Convention on Human Rights” [b] “fundamental rights that pertain only to the Union’s citizens”, and [c] ”economic & social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers [European Community Treaty Art.136], insofar as they do not merely establish objectives for action by the Union”. The second innovation was that the task of drafting the Charter did not go to the usual committees of national civil servants answerable only to their Ministers. Instead, in a change from the EU’s normal practice, it was given to a Convention made up of representatives of the European Parliament, national parliaments, member states’ governments, and the Commission, together with observers from the European Court of Justice. It was chaired by Roman Herzog, formerly President of Germany and President of the German Constitutional Court and its work was to be completed in accordance with a strict timetable. The final text was in fact completed by Autumn, 2000.
Public reaction
Reactions to the Charter project varied. Federalists feared that the European Council’s true motive was to sidestep their demand for a constitution. Other doubters held it to be unnecessary, EU rights being Treaty-based and therefore already justiciable. Some, with their eye on Article 17.2 of the European Community Treaty [TEC], thought it should emphasize that EU citizenship involves duties as well as rights, while many lawyers felt it posed a risk of overlap and confusion between the spheres of competence of the Court of Human Rights and the Court of Justice. Supporters, on the other hand, pointed out that the public’s ignorance of their rights under the Treaties and ensuing legislation was one cause of scepticism about the European project. They saw the Charter as a way of promoting a “citizen’s Europe”. Non-Governmental Organisations in particular were aware that collating existing rights would also highlight how much was missing. They lobbied the Convention, though unsuccessfully, to include “new” rights which were outside the remit.
A democratic Union
The finished Charter is a remarkable and valuable document, though not without its weaknesses. One example is the way it handles political rights. The articles dealing with freedom of thought, expression, assembly and association are clear and unambiguous. On the other hand, the right to vote as a general principle is mysteriously absent. In both its Preamble and its fifty-four Articles the Charter reiterates the values of the European Union listed in the European Union Treaty [TEU] Art.6.1 as being “liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states”. These values apply at both Union and member states levels. Respect for them are a condition of EU membership. Any member state found to be in breach of them may, according to the Treaties, be disciplined. As only democratic countries may be admitted to the Union, it could therefore be argued that the right to vote in one’s own country constitutes an existing right under the Treaties. Of course, the Charter recognises that any European Union citizen resident in an EU Member State of which he or she is not a national may nevertheless vote or stand as a candidate in European or municipal elections under the same conditions as nationals of that State. This is a limited rather than a fundamental right and mirrors the embryo nature of EU citizenship. We are a long way from the American arrangement whereby the citizen of any State in the federation automatically acquires full citizenship rights in any other such State on taking up residence there.
The Charter too is limited in its application. Article 51 makes it clear that its provisions “are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”. Nevertheless, several of its articles clearly apply at both national and European levels. The articles on entitlement to social security and health care are recognizably in this category and refer in the same breath to “Community law” and to “national laws and practices”. A federal constitution would be expected to contain both a catalogue of citizen’s rights applicable throughout the federation and a clear statement of the divisions of competences between the federal and sub-federal levels of government. The Charter, however, is not a constitution and it betrays at times an uneasiness about the relationship between Member States and the EU where basic rights are concerned. An optimist might say that such tensions are normal in a federation, and a healthy sign. A pessimist might take the different view that the EU has not yet travelled far enough along the road towards a constitutional federation.
Basic human rights
Further examples of this uneasiness can be found in articles such as those concerning such basic human rights as the right to life, to education, to liberty and security of person, the prohibition of torture and inhuman or degrading treatment, and others of a similar type. These are for the most part rights more commonly associated with the European Convention on Human Rights [ECHR] drawn up by the Council of Europe which has so far been the most successful internationally binding charter of its kind. It is justiciable and the protection it offers applies to all persons within the jurisdiction of its signatory States, with right of appeal to the European Court of Human Rights. All EU member states are also members of the Council of Europe, though the EU itself is not; nor is it a signatory to its conventions. Nevertheless, under Article 46(d) of the European Union Treaty [TEU], these same ECHR rights now apply to actions by the EU’s own institutions and are justiciable before the Court of Justice. They should however be widened to cover all EU actions, including the second and third pillars. It is particularly important to ensure that the EU acts in accordance with its own high standards with regard to human rights in relation to immigration and asylum issues and the operation of the Schengen Information System.
Critics of the Charter predict a possible conflict between the Council of Europe’s Court of Human Rights and the EU’s Court of Justice. Article 52(3) of the Charter attempts to forestall any such problems by stating that where its provisions correspond to rights guaranteed by ECHR, “the meaning and scope of those rights shall be the same as those laid down by the said Convention”. This relationship needs further examination. It is unlikely at present that the EU itself could apply for membership of the Council of Europe, even if that were desirable. Perhaps the way forward might be for the EU to become a High Contracting Party to the ECHR, though for this purpose a Treaty amendment endowing the EU with the necessary legal personality [see Court of Justice Opinion 2/94] would be needed. In addition, a special agreement could be negotiated, recognising the primacy of Strasbourg in Human Rights questions, thus avoiding confusion of competences between the Court of Justice and the Court of Human Rights. Citizens and non-citizens. For the estimated 14 million non-citizens living and working in the various member states the principle of non-discrimination in Article 21, based on the TEC’s Article 13, is an important factor in promoting equal treatment. This, together with most other articles in the Charter, applies to citizens and non-citizens alike, though a few Ð in particular Articles 39-40 concerned with voting rights Ð are for EU citizens only. As one aim of such voting rights is to help the integration of EU citizens living in a member state other than their own, might they not also be extended for the same reason to permanently resident non-citizens, as is already the case with local elections in certain member states? Alternatively, a mechanism could be established by which 3rd country nationals could apply for the status of EU citizen on the basis of residence rather than nationality. Such a move would help to foster a rights- orientated rather than ethnic or nation- based sense of European identity.
The Charter’s legal status
From the text of the Cologne Summit communiqué it seems clear that the Charter was intended simply to draw people’s attention to their rights rather than to have legal force. On the other hand the opinion has been voiced by some lawyers that even as a declaratory document it is likely to have some impact on court decisions. However, it is difficult to understand how a non-justiciable Charter could have the required impact on public perception. Most people feel that, to be effective, fundamental rights should not be simply tucked away in obscure legal texts but, as well as being enforceable, should be clearly stated in language which can readily be understood. The great achievement of this Charter is its clarity.
Conclusion
The importance of the Charter in the development of the European Union must be clearly recognised. It underlines the democratic and rights-based nature of the European Union. But it needs to be matched by an equally clear description of the competences of the Union and its institutions. In a protocol to the draft Treaty agreed in Nice the Europe Council sets out its provisions for a wide- ranging public discussion of the EU’s future development, its competences, its relationship with member states and their parliaments, and the status of the Charter of Fundamental Rights. How useful this debate will be depends on how it is organised. If the focus is simply another round of inter-governmental horse-trading it could turn out to be a futile exercise. The ideal focus for a public debate of the issues involved would be to establish a Convention of the type used to draft this Charter, but this time endowed with the task of drawing up a federal constitution of the European Union of which the Charter should form part.
A Political and Moral Essay
The theses which follow will appear utopian, as indeed they are. But utopia becomes a necessity when change is a matter of urgency.
This is because:
- the dangers which threaten men and citizens at the start of a new millennium can’t allow the political conscience to remain half-asleep any longer;
- societies’ problems must be faced and tackled at a world-wide level due to the globalization of the economy and the worldwide spread of cultural information;
- a new historical subject is now emerging: Europe as a regional ensemble, and this in spite of the obstacles raised by the Nation-States, which themselves control the project.
Europe must become our hope now, and this hope must be realized in the future.
It will certainly be remarked, and it may or may not shock some readers, that nation-state has already been eliminated from our perspectives. But for the clarity of our thesis this was necessary. A true vision of the new Europe cannot be reached if a general and stubborn blindness to fast changing realities persists: among these realities, at the turn of the century, are the erosion of decision-making powers, the condemnation for historical crimes and the loss of political pertinence of the State this State which emerged between the XIII and XVI centuries, hardened by an authoritative rule and centralization between the XVII and XX century and reached its own frontiers through inexpiable wars. As far as the concept of nation is concerned we will take it at the time when it was created in France after the American model between 1789 and 1793 before it degenerated into imperialism and centralization.
Today, Europe can, in its turn, become such a Nation and it seems there is no other model. It is a negotiation of history and all history is made by negotiations which will tell how the State can become a mediator towards this indispensable mutation, and how the guarantees it offers, in spite of its functional tyranny, to men and citizens, can be safeguarded under the seal of a new historical subject.
According to what has become more and more obvious in recent years "re-founding the Republic" cannot be seriously envisaged. In Europe the days of the Republic are over. Only a European Constitution can help us to get out of four kinds of dead ends or deadlocks that appeared at the end of the century and which are the final phases of previous evolutions which have suddenly accelerated.
The dead end of State-nationalism
At the same time that the globalization of the economy and stock-exchanges put an end to "national markets" which had promoted and supported the building of nation-states in the period of history which goes from the XVI century to the 1960Õs, these Nation-States lived on in their shape, structure and nominal sovereignty.
In the Balkans we have seen a return of nationalism in the forms of cruelty and savagery we thought had disappeared once and for all with nazism. The remedies that the international community found to this series of savage conflicts, after two local wars (Bosnia and Kosovo), are merely local partitions which are nothing but a return to the sources of the trouble, i.e. State-nationalism, serve as a protection to war criminals and show their impotence to alleviate ethnic tensions.
The American military air intervention in Serbia was carried out practically out the limits of legality sanctioned by the U.N. This operation, after the war against Iraq, has proved that this organization of Nations to safeguard peace was but a Club of States where force prevails in both cases the force of a self-proclaimed "world policeman". It has renewed the scandal of the great bombing raids of the second world war: the punishing of civil populations for the crimes committed by their oppressors.
However two principles have emerged which will stand as hand marks in the history of humanity:
- first: the right and duty to intervene in the defence of oppressed communities on condition that the strategies of great powers do not choose arbitrarily between groups (why Albanians and not Kurds?) and that a clear distinction be made between peoples and their oppressors;
- second: a supra-national responsibility in peace-keeping and protection of freedoms. If in this respect Europe has been absent or has lagged behind, the idea of a European military force of intervention has, at least, taken shape.
But can these two principles be acted upon by this other Club of States which is Europe in its present form?
The dead end of Territory
National markets were organized in the capitalist phase of the XIX century as the regency of a central power over territory within its borders, coupling this, at time, with a free-trade policy as conditions required, which seems somewhat hypocritical!
In the case of a hyper-centralized State, of which France has been the model, the capitalist power has applied to its territory a strategy of regular exploitation of its peripheries which looked rather like an "internal colonialism" and was very strong between 1860 and 1970.
Stop-gap measures generally known as "aménagement du territoire" (i.e. town and country planning) taken in a final period (1950-1970) very closely followed the process of territorial imbalance. At the same time the weight of the Common Market worsened the imbalance at the periphery, making this "internal colonialism" more visible (cf. coal crisis and pit closures) by the end of the period. In their turn the advances in the constitution of this Common Market which have led to the marginalizing of the strong areas of the national territory and the increasing globalization of the economy, have, since about 1980, created a new economic situation. The French center the Paris area is far from the center of Europe and cannot protect itself any longer except by means of a massive national investment in the "inescapable Capital" and a perverse use of regionalisation towards a further growth of the Ile de France region. "L’aménagement du territoire" is, in practice, forgotten.
On the contrary the French regions, like all those of Europe and in spite of the handicap of a biased process of regionalisation, have begun to "feel the space", that is to say to discover the natural relations of their geographic situation which the artifice of a territory drawn by ancient wars and power diplomacy had blurred for centuries.
At the same time European contracts, credits and subsidies at the outset controlled by the States tend today to be freed from the supervision (cf. the Interreg. Programs). The Europe of areas and regions is in the process of being created as the limits and constraints imposed by States are weakening or fading out. It is the very concept of "territory", a political boundary-marking imposed on socio-economic conditions, which has become outmoded and practically useless. It covers a reality which already belongs to the past.
The dead ends of globalization
Runaway globalization accelerated during the last five or six years of the XX century, this was largely a consequence of the collapse of state-socialism (here communism). It seems to be reaching a climax without serious obstacles in its path. But its triumph seems to beget its own deadlocks.
We see three of them:
- By suppressing or erasing national borders it allows the competition of large interstate regions which take shape on a global scale and whose chances suddenly look unequal. This unequal development that pertains to the very nature of capitalism, accelerated by the stock-exchange driven economies encompasses the whole planet. It renews and carries to its highest level the colonialism of the ancient colonialist powers, but also on a smaller regional scale, for example in Europe, it revives the internal colonialism of centralized States. Since globalization obeys no strict rules or laws it cannot but produce inter-regional social conflicts of which the current structuring of Europe between South and North, West and East seems to announce.
- As the whole world is covered by the global market it makes traditional means of production obsolete and it disrupts ways of life and social-cultural habits which must fall into the melting-pot of a unified consumer society. This has already produced a kind of backlash. The fundamental cultural claims which emerged thirty years ago in Occitania (South of France) on the Larzac plateau have now manifested themselves in the demonstrations of Seattle and Davos in all their humanist impetus and picturesque riotousness. Thus all that was local is being moulded into the planetary. The conflict cannot but deepen.
- Finally the collusion between the political classes, the illegal fringe and the criminal classes, which were commonplace but relatively unusual in the old days, has just taken unheard dimensions. It has developed, with the most dangerous traffics (such as drugs and arms deals) at the very heart of the Wall Street stock exchange power. It has seized the substantial influence over some national governments. In Russia, for example, it has resulted in a paradoxical situation where a reinforced state-nationalism serves in its shape a Mafia-state as a screen or shield for international criminals. The danger has become huge.
The nuclear dead end
During the last half-century, atomic energy has supplied the club of powers who had the means with an arsenal of destruction capable of condemning the planet to death several times over. The equilibrium of terror has undoubtedly prevented a world-wide conflict. But this has now resulted in a deadlock from which we find no exit. It is obvious that this deadly arsenal must be destroyed (which is much more difficult than building it) but due to the weight and persistence of state sovereignties there is no world authority capable to take this decision. A stark paradox: planetary development has escaped from the hands of the States but the destruction of the planet remains in their hands and at the mercy of their petty quarrels and rivalries.
Civil nuclear power poses a danger as well. Chernobyl has proved and continues to prove that the gain in productivity brought about by atomic energy is paid back through a threat to the planet. A contest has now been undertaken between the maintenance of atomic power plants and the fight against the dangers they involve (which cannot be reduced to zero). Germany has made the first move, although insufficient so far, in order to deal with this dilemna.
France is coming to a turning point: its "all nuclear strategy", once a subject of great national pride, despite the destruction without pity of regional resources such as coal, cannot be reversed without a negotiation with its electricity consumers and European clients. Either France keeps its nuclear electricity supply and poses inacceptable threats to Europe or it joins a European plan to replace atomic energy with a mix of new energies and the use of other former non-renewable fuels. In order to escape from these dead ends the proposal of European democracy, according to me, should have three dimensions.
The European government
There is no mistery about that Europe needs a unified government fully responsible to an Assembly elected by universal suffrage on a non-national list system, with regional modulations necessary to equalize chances, if needed. Her chief innovation would be the affirmation of a political subject of a new kind: the moral political subject. But if we look at things properly this is what the Nation meant in 1789. In order to reach this goal the laying out of democratic European institutions ought to be accompanied by four solemn declarations. Declaration to renounce nuclear power and such industries destructive of the biosphere, within the framework of a European comprehensive plan of conversion spread over twenty years (Europe of ecology). Declaration of acknowledgement of a right to self-organization by national communities, regional or immigrated, in particular linguistic and cultural terms (Europe of Cultural Rights).
Declaration about power, which in a democracy cannot be but ascendant, which means that a decisional pyramid is established from the civic-base unit (municipality or country) up to the European top, passing through the level of regional government (Federal Europe). Declaration of acknowledgement of social solidarity, that is to say to replace the particular and ineffective fights against unemployment with a periodic revaluation of employment distribution and financial supports (Social Europe). Such an organization propped up by such important pledges does not solve the world’s problems but it defines a privileged area for civic experimentation and establishes at a planetary scale a pole of training and impulse for "universal peace making".
European Territorial Organization
The anarchy which the centralized State maintains in the development of regions and the recent intervention of globalization must be replaced by a rational organization, which poses three questions.
The question of the "civic area" of Europe
Currently the enlargement of Europe is defined on the basis of the application of Nation-States without any consideration of geographic, historical or cultural coherence. Originating in a local and conjunctural agreement at the world scale, between a group of occidental States the European area runs the risk of becoming a territorial monster brutally and carelessly traversed by insuperable contradictions. A debate must be established between the fifteen member States in order to decide a transition period during which a sound procedure for enlargement will be defined according to a strategy of internal complementarities and external links and connections.
The question of the basic organic unit
It will be necessary to balance globalization and the territorial weight inherited from States with a manageable form of local democracy which will lead everywhere to the promotion of the relational geographic unit either traditional or post-modern which is known as "pays" in France, "kreis" in Germany, "comarca" in Spain, etc. But we must give this system a well-defined ecological function to protect and organize the local environment, together with a social function of resource equilibrium and work-distribution. It should be given a civic statute, i.e. an Assembly with concrete powers elected by universal ballot.
The question of strategic space organization
It must be clearly stated that it cannot be the State which has deliberately shown that it preserved territorial dysfunctions, the tyranny of center and isolationism. The basic founding unit must be the "European Region" as much as possible with a well-defined historical and cultural identity and with equal powers within the whole concerned area. The region being open by contract to inter-regional relations on the European scale but also to the outside world (for example on the Mediterranean). The setting up of institutions and the joint development of the Senate and a European Economical and Social Committee operating in close cooperation with the European Assembly. Regional autonomy must be guaranteed at its own level by a Parliament elected by universal suffrage based on the countries.The creation of a European Area to regulate globalization It has two basic aspect.
The economic aspect
We need to create at the European level what the States, by betraying their proclaimed sovereignty, have not been able to create and which does not exist in the Europe we have built so far: a tool for the control of global mobility of capital. This does not constitute an archaic form of protectionism. It actually consists in letting produced resources flow upward and investment flow downward through a European Development Bank controlled by Civic Power at its three levels and which would implement the fundamental choices made by these assemblies. This is the present dynamic form which suits the functioning of a liberal economy of "regional ownership", which was formulated in the old days to correct "internal colonialism". This might be the beginning of a "third way" between dead socialism and a capitalism which has reached its dead end.
The cultural aspect
It is first of all linguistic. Always in the linguistic history of mankind the market of goods has been accompanied by a market of language. Globalization sustained by Internet has resulted in a surprisingly fast world-wide spreading of English. One can regret this new form of imperialism but it is vain to think opposing it. The game has already been lost. From this point of view the refusal of the French which has a tint of imperial nostalgia is only a series of ineffective and sometimes ludicrous diversions. In this field Europe has a positive choice to make whose economical aspect cannot escape anyone. But this choice of a practical tool for universal communication leaves intact the statement of a right, also universal, recently strongly put forward: the right of any language and any culture to its free development and the right of those who are in danger to be the object of rescue operations. This way another dimension of globalization has been defined which we shall call for cultural plurality. Of this plurality where French, in the same way as German, Dutch, Italian, Spanish but also Breton, Occitan, Gaelic, Welsh, Catalan, Frisian etc. have a chance to keep a place in the modern world, a European Bureau of Cultural rights should be responsible.
All these options not only would tune Europe up to the evolution of the world in its most positive aspects, but would constitute an example for others, or, as the Nations at a stage of power and self-celebration, liked to say of themselves in bygone days, Europe would become a "lighthouse" for the world.
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