By Dr. Leo Klinkers
16 May 2019
There is much confusion about the true nature of federalism. There are also misunderstandings about the essence of the counterpart of federalism under the name of intergovernmental government, the current operating system of the EU.
This confusion is the reason to write this article. A discussion about whether to opt for a federal Europe or to retain the current intergovernmental system must be based on conceptual knowledge. Let me therefore begin with a simple description of both concepts.
- A federation is based on a constitution of the people of the member states, whereby vertical separation of powers leads to shared sovereignty between the member states and a federal body. The executive branch is accountable to a fully-fledged transnationally elected parliament.
- Intergovernmentalism is cooperation between governments on fields of policies – based on a treaty or an agreement – in which normative powers are given to administrators without them having to account for the executing of these powers to a fully-fledged transnationally elected parliament.
At the end of this article, I will answer the question: what is better, a federal or an intergovernmental Europe?
Characteristics of a federal European Union
A federation is only a federation if it is based on a federal constitution by the people, of the people and for the people. Thus, ratified by the people. The constitution’s preamble lists the values that it wishes to protect and preserve.
The federal constitution is based on the principle of the trias politica. This is the separation of the three branches of government (legislative, executive and judicial). This principle is maintained by means of an elaborated system of checks and balances, to comply with the rule: ‘None of the three powers is the boss over the other powers and no one is above the law.’
Contrary to what is often claimed by opponents of federalism, the member states do not transfer sovereignty by means of a federal constitution. The conceptual framework of a federation is as follows: the member states share their sovereignty with a federal body through a vertical division of powers. They will not lose anything, let alone sovereignty. On the contrary, they are given something extra, namely the care for common interests that they themselves are no longer able to defend.Such as, for instance, climate control, economic and social safety, security and defence, immigration, foreign affairs.
The proposition that a federation is a superstate that will take away the sovereignty and cultural identity of its member states, and that a federation needs a single people, with a single language and a single culture, is not correct. It’s exactly the opposite: a federation is created to give diversity a secure constitutional basis. For example, federal India constitutionally guarantees twenty-two official languages. Belgium three and Switzerland four. Why? Because those countries have – in their respective regions – different peoples with different languages and different cultures. In a federal state, they can live with fewer conflicts than if they existed within closed borders as nation states without cross-border government.
This, it is not necessary to have countries in order to establish a federation. A federation can also be created within a country by giving regions their own political system. Belgium has transformed the decentralised unitary state of three different regional cultures (French, Dutch and German) into a federation of three independent parts of the country with their own constitutional system. Germany, Austria and Switzerland are also examples of countries in which different peoples and cultures have led to the decision to turn it into a federal state. The same process could be applied in Spain, Italy, Cyprus, Ukraine. Even in the UK with its four different peoples, cultures, languages and already existing partial own administration per region. The UK’s devolution can be seen as a gateway to a fully-fledged UK-federation. A federation might even be a solution to the tragic conflict between Israel and Palestine. The design of such federations is not difficult from a constitutional point of view. The problem always lies in the lack of fundamental knowledge about the power of a federal system to mitigate and gradually resolve culture-driven conflicts within a country, in conjunction with the lack of political statesmanship and courage.
Because of the vertical division of powers, a federal body can only decide on a strictly limited list of subjects. The member states and their citizens retain all other powers, including their own parliament, administration, jurisdiction, policy fields, cultural identity, habits and customs.
Precisely because of the exhaustive (limited) enumeration of the competences of the federal body, there is no need for the principle of subsidiarity. The federal body cannot take any top-down decisions on any other issues than limitatively listed in theconstitution, let alone push these issues compulsory through the parliaments of the member states. Thus, the principle of subsidiarity coincides with the essence of a federal system.
In a federal EU, the parliament is based on proportional representation of the people of all the member states, made electable by transnational political parties, whereby the territory of the EU acts as one constituency. So, no district-driven organization of elections and therefore no fear for evolving into a two-party system.
The parliament of a federal EU has congressional oversight. This means that it can control the exercise of the powers of the administration, the executive branch, in all circumstances.
In a federal EU, there is no nation-state anarchy. Anarchy in the sense of the absence of cross-border federal government that can prevent and resolve conflicts so that they do not degenerate into the wars and genocides of the 17th – 20th centuries as a result of the nation-state anarchy.
In a federal EU, competition between member states continues to exist, for example in the field of state taxation, but potential conflicts between member states are resolved by the federal body.
When a federation is set up, the member states’ debts are settled. They become the debts of the federation.After that, the member states have to keep their own finances in order. For settling the member states’ debts, the federation provides a budget for the federation on its own, i.e. not by exhausting the finances of the rich member states. This is how the US federation was founded in 1789.
In a federal EU there is no compulsory assimilation. Assimilation in the sense of the slowly fading away of the diversity of languages, cultures, customs, national administration, politics and policies. Just as biodiversity is a necessary condition for the earth to survive, so diversity within a country and between countries is a condition for survival and innovation. Assimilation in the sense of the gradual disappearance of diversity between peoples, cultures, customs and practices leads to inbreeding and eventually to the collapse of a people or tribe.
The vertical separation of powers does not imply that the powers of the federal body are exclusive to that body. The member states of the federation may retain powers in such areas, provided that they do not concern matters under federal authority. For example: in a federation defence is a federal competence in the event of armed international conflicts, but member states may retain their own defence forces for their internal security. Another example is foreign affairs. The federation has embassies and consulates in various countries. Member states are also allowed to have them, provided that they deal with subjects other than those of the federal body.
Characteristics of the intergovernmental EU
An intergovernmental administrating system is based on a treaty or agreement. The main actors are the (heads of) governments. National parliaments only play a role in agreeing to a treaty. After that, they no longer have a fully-fledged monitoring role. Intergovernmental systems do not have transnationally elected parliaments to which the administrators are accountable.
An intergovernmental administration system has no trias politica (the separation of the three branches of government: legislative, executive and judicial), nor checks and balances to guarantee the actual separation of the three powers.
The intergovernmental EU is not democratically constituted. This is demonstrated, above all by: a parliament based on nationally oriented representation of national communities and not on proportional representation of the entire European people; the leadership of the EU is in the hands of the unelected European Council; the European Council cannot be held accountable in all respects by the parliament.
Any system in which administrators are not accountable to a fully-fledged parliament tends towards oligarchy and autocracy. For this reason, it leads to a limited political life cycle, often broken down by (increasing) internal conflicts within the intergovernmental system and/or by the uprising of the people, who feel not democratically represented by a normal parliament.
The absence of full parliamentary oversight of the functioning of the administrators of an intergovernmental system creates a distance between people and governance. The more power the administrators want – and often get – the greater that distance becomes. The resulting vacuum is then easily filled with extreme right-wing groups with their own agenda.
The desire of some members of the European Council to abolish the principle of unanimity, is a clear proof of the warning by Jean-Jacques Rousseau that governance always tends towards an oligarchy. Although decision-making based on the principle of unanimity is a retarded form of decision-making, one must be extremely vigilant as to the reasons for its abolition in the European Council. See my article on this subject.
The fact that the European Council takes decisions on the basis of the principle of unanimity means that any member of the Council can block a decision with a veto. Decision-making on the basis of the principle of unanimity rather than majority voting is a typical aspect of the way in which the EU works, namely, to protect national interests, instead of looking exclusively to the European interests. National protectionism is the natural enemy of federalism and one of the main causes of the EU’s eventual collapse of intergovernmentalism.
The not-elected European Council is the main decision-making body. This is the group of twenty-seven heads of government (prime ministers) and some heads of state (presidents). Although the Treaty of Lisbon has defined the exercise of powers exhaustively and the principle of subsidiarity is intended to prevent the EU from intervening unnecessarily in areas that can be better implemented by the member states, Article 352 of the Treaty allows the European Council to take all decisions that the Council deems to be in line with the EU’s objectives. The prior consent of the European Parliament, stipulated by this article, is a formality.
One of the guiding principles of correct constitutional law-making is: make only general binding rules; avoid making exceptions to the general rules. The consequence of this is that the more interests there are, the fewer rules you have to make. The Treaty of Lisbon does exactly the opposite. In order to accommodate the interests of every nation state, it consists of over four hundred articles and many exceptions to the rules.
The Treaty of Lisbon is
a) by its unnecessary length to incorporate the specific interests of member states instead of confining themselves to a small set of general binding rules – a capital sin in constitutional law-making,
b) by its many contradicting articles – colliding rules as another capital sin,
c) by its deviating Protocols – another main sin,
d) by its nationalistic driven Opt-outs – the ultimate capital sin,
the worst legal document ever written in the history of Europe. It is based on a system error, created in the Schuman Declaration of 1950 whereby Schuman claimed explicitly that Europe should become a federation, though handed over the responsibility for such an endeavour to heads of governments. A typically wrong goal-means relationship. Heads of governments cannot create a federation. Only the people can do that by ratifying a constitution by the people, of the people and for the people. And that is why the intergovernmental Treaty of Lisbon itself is the main cause of all conflicts within the EU and of its weak geopolitical position.
By its very nature of being an accumulation of national interests the Treaty of Lisbon is an open invitation to heads of government to oppose the Treaty and related agreements. Either individually or in an organised context. It inevitably has led to more conflicts within the EU and to great pressure to reform the EU, by wanting to return to the so-called sovereign nation state. That could imply the return of the nation-state anarchy with its wars and genocides.
The EU is a fine symbol of the centuries-old need for connection of European states. That should be cherished. However, through the top-down, compulsory decision-making mechanism of the European Council, the EU operates actually as a superstate that undermines the sovereignty and cultural identity of its member states. The EU is good, but its intergovernmental operating system is wrong. It is not binding but divisive. It is undermining European unity in the sense of forced assimilation by slowly fading away of the diversity of one’s own administration, languages, cultures, customs and practices. It is therefore fully justified to fundamentally criticise the EU’s dividing intergovernmental system of governance.But don’t blame the EU for this. Blame the politicians who introduced the system of intergovernmental government after WWII and blame the current politicians who continue to maintain this system despite the torrent of evidence that it divides rather than unites the European states.
Though fundamental criticism of the EU’s intergovernmental administration is justified, the desire of nationalist-populist groups to return to the nation-state anarchy of previous centuries is unjustified. Because Brexit is based on this fundamental fallacy – and also based on false information about the functioning of the EU – it is for the time being the height of political ignorance about the dangers of intergovernmental administration and of the real nature of federalism.This is all the more worrying given that, from 1800 to 1940, the UK almost continuously led processes to federalise its empire, including countries of the European continent.
Some federal weaknesses
When writing the European Federalist Papers between August 2012 and May 2013, Herbert Tombeur and I paid attention to weak and failed federations. I’ll mention some details here.
In the first place it is important to realize that every federation has to meet a number of standards. But slight deviations are certainly possible. To understand this, I use a metaphor. Many people know the song ‘We’ll meet again’ by Vera Lynn. That is a standard. If it were to be sung by Tom Jones it would sound undoubtedly different. Maybe a bit slower, maybe a bigger orchestra behind it. But even then, everyone would recognize the standard ‘We’ll meet again’. However, if Tom Jones were to sing the lyrics of Vera’s song with the music of his own song ‘Sex Bomb’, nobody would recognize it as the standard ‘We’ll meet again’. Well, the minimum standards of a federation are:
- establishing the federation bottom-up: by the people, of the people and for the people, ratifying a federal constitution,
- the sharing of sovereignty between the member states and the federal body through vertical separation of powers, with a fixed/limited list of federal powers, while all other powers remain with the people and the member states,
- a fully-fledged parliament holding the executive to account,
- a system of checks and balances to maintain the trias politica
- the member states taking care of their own government for their own citizens and the federal body making policies representing the common interests of all citizens of all member states.
But there is still room for relative, non-structural changes. For instance, whether the parts of a federation can have their own embassies in other countries is not a standard but a relative issue, to be decided upon by the people who design the federation.
There are examples of federations that did not work or only functioned for a limited period of time. For instance, the federation of the United States of Indonesia, established in December 1949 by the Netherlands and leaders of the Indonesian striving for legal independence. This federation was dissolved after eight months because its president Sukarno preferred to lead a centralised republic. The fact that Sukarno was able to do this quite easily is attributed to the assumption that a federation is weak if it is imposed from the outside, without providing for fully-fledged democratic institutions and with an asymmetric allocation of powers between the federal authority and that of the federal units.
This phenomenon is not unique. Similar attempts at establishing a federation on the initiative of the former colonizer took place in the first decade after WWII. Only to fail quickly for the same reasons as in the Indonesian case. This happened in Africa with Cameroon and Rhodesia-Nyasaland. A federal Ethiopia-Eritrea also failed. The United Kingdom left Pakistan with a federalist-oriented act, though Pakistan chose to centralize its government.
What do we learn from this? Well, the most important aspect is that externally or top-down imposed federalism does not work. Without fulfilling certain conditions, it is prone to collapse. Conditions like common values and interests, shared by the people, legitimate political representation, preparedness to cooperate and to demonstrate mutual solidarity, especially when the federation houses different groups and cultures.
In Europe one federation ended in violence: Yugoslavia. Another one, Czechoslovakia, was dissolved by political consensus. In the Yugoslavia case a mixture of two different driving forces – communism and federalism did not work. The deepest cause of this collapse is attributed to the absence of a proper constitutional and institutional organisation, with a clear vertical separation of competences between the member states and the federal body. Therefore, the principles of communism could always overrule the principles of federalism, leading to defederalization after president Tito’s death and eventually the total collapse after the implosion of the Soviet Union.
Czechoslovakia consisted of two socialist republics. Each had its own legislative and executive power, as well as a federal parliament for the whole country. Until the fall of the Berlin Wall in 1989, the communist parties of both member states dictated the tasks of the legislative and executive powers. It was only after 1989 that Czechoslovakia became a federation on a democratic basis. Yet this federation also failed because of an unsolvable dispute between those who saw the federation as a body that should work from the bottom up and others who advocated a top-down approach. On 1 January 1993, the federation ceased to exist and was transformed into two independent countries. The main lesson from this is that this federation was set up and used for political purposes, with no added value for the people and their common interests. The absence of a system of conflict resolution, essential for the acceptance of cross-border governance, also did not create a federal identity.
As Herbert Tombeur and I wrote in the European Federalist Papers: “These cases appear to show that the success of federalism depends on the clarity in which it describes its contribution to political freedom, democratic responsibility, economic competitiveness, as well as cultural richness.”
Some might ask: “And what about all the problems in federal India and the United States of America? Does this not show that even a federal form of state cannot withstand internal conflicts and insurgent movements?”
Let us keep India apart from America for a moment. India having more than a billion inhabitants, the structural decline in China’s population will make it between 2020 and 2030 the largest country in the world. It consists of several hundred of regional cultures and languages in addition to the twenty-two official languages recognised by the Constitution. Some of the twenty-nine member states are rich, other are poor. It has four dominating religions: Hinduism, Islam, Christianity and Sikhism. All the ingredients for a hundred years of devastating wars. It is true that there are regular conflicts, even bloody ones, between adherents of different religions or political views. But the overriding feature of India is progress. Abolish its federal state and then experience that nation-state anarchy between the twenty-nine parts will destroy India.
With regard to America, President Trump’s undeniable desire to establish autocratic monopoly demonstrates the strength of the American federal constitution. He has worked step by step towards a constitutional crisis on the assumption that he will win the battle with Congress. But neither he nor Congress will win, but the constitution will. The ingenious US-constitutional system of checks and balances to preserve the trias politica will always confront him with a countervailing power that puts him back in his place. Even if he can, by means of (Tonkin-like) provocations, unleash a war somewhere in the world to take control of the other two branches of government, the people of America will call him to order: the citizens are the alpha and omega of a democratic federal order.
Another aspect is the two-party system based on district-oriented voting – also known as the spoil system. It makes the USA – as in the UK – almost ungovernable if the two dominating parties are not prepared to cooperate as is done in Europe with coalition governments. Over the last two hundred years, more than thirty amendments have been tabled – though until now in vain – to change this US-district system for a popular voting system. If Trump, supported by the Republican Party, persists in the quest for autocracy, he makes the need to change the district system for a popular system all the more urgent. This is demonstrated, for example, by the fact that currently, more than ten US-member states have already decided to merge the popular vote of their states in subsequent elections, making the sum of the popular votes a decisive criterion for the result.
What is better: a federal EU or an intergovernmental EU?
Because of the advantages of a democratic federal constitution instead of sticking to the current undemocratic intergovernmental treaty – full of systemic errors – a federation is by far the preferred option. In order to give heterogeneous countries and regions that want and need to cooperate within a system whereby they retain their sovereignty, a federation is the most appropriate form. For this reason, forty percent of the world’s population already live within as many as twenty-seven federations.
The most important lesson we can learn from successful and failed federations is the same lesson a child learns when it has to make a good fried egg: know what it takes and know how to do it. A federation is only a federation if a series of inalienable conditions are met. That requires knowledge and the courage to apply that knowledge.
One could ask: ‘What would I, as a citizen, gain from a federal Europe? Does it make me healthier? Is it easier for me to move around Europe in search of a better life? Does it make me richer? Does it give my children a safer future? Does it accept abortion and euthanasia?’ And many more questions that affect citizens personally. The answer is: a federal Europe starts with the interests of the citizens themselves. It is fairer, juster, more social, safer. The birth certificate of a federation is about the happiness of its citizens. And the task of the government to help the citizens to achieve that happiness. No matter how difficult that can sometimes be and how long it can take for the intended success to be achieved.
Federalism deals with values, laid down in the preamble of the federal constitution. Federalism does not deal with policies. Why not? Because federalism is concerned with a form of state, not with policies. There is no such thing as federalist education policy, federalist agricultural policy or federalist immigration policy. Or any other policy area. Policy is made by politicians,who, elected and appointed, determine the policy of the federation. Federalism as such only deals with the question: which form of state is the safest one for citizens when countries and regions have to live and work together but differ in many respects. Federalism is concerned with building a sustainable and liveable house, not with the question of which furniture the residents like best. This also answers another question: ‘What happens if the wrong people go and live in that house?’ And so, the question: ‘Is a federation able to prevent bad residents from taking possession of the house and destroying it?’ The answer is: a federal house cannot guarantee that it will not be occupied by bad residents.Political squatters are always there, looking for openings to seize the democratic procedures and thus fulfil their personal ambitions. But the better the construction of the federation meets the standard requirements, the less chance there is of bad residents to move in. How well a federation meets standard requirements starts with the preamble to the federal constitution – by the people, of the people and for the people- which accurately lays down which values are guarded and preserved by this constitution.
In 1787, the founding fathers of the Philadelphia Convention realised already after two weeks that the intergovernmental treaty of their confederation had reached the end of its political life cycle after only eleven years (1776-1787). That treaty did not create thirteen viable states, cooperating in unity, but proved to be the cause of their division. Disobeying their legal assignment (‘repair the faults within the treaty’), they did a number of audacious steps out of the box and threw away the treaty and made the first federation in the world. Based on the ideas of European philosophers.
And what did we learn from this in Europe? Nothing. For two centuries, numerous attempts were made to federalise Europe too. However, all attempts failed. Why? Because every attempt was always made wrong, not based on the essence of Europe’s own philosophical legacy.
Immediately after WWII the adage ‘never again war’ created two movements. One was the intergovernmental cooperation of government leaders at the founding of the United Nations in 1945. The other was the creation of the World Federal Movement, in 1948. The intergovernmental administrating system gained in strength. The United Nations proved to be the cradle of many hundreds of intergovernmental organisations all over the world. Initially, federalism also had a great deal of sympathy, with hundreds of thousands of supporters. In Europe mainly supporters of the famous Ventotene Manifesto (1942) in which Altiero Spinelli explained the building blocks of post-war European constitutionally based federalism. But slowly the attention for federalism waned and federalists – also the World Federal Movement and its chapters in the world – started to lean heavily against intergovernmentalism. Some federalists did this because they were happy that the intergovernmental system could at least act as a brake on future wars. Others assumed that if you tinker with an intergovernmental treaty often enough, the intergovernmental system will automatically turn into a federal system. This is the way of thinking that we still find within some European federalist movements today: ‘Let us amend the Treaty of Lisbon only a few more times, and then it will automatically become a federation.’ Well, one can discuss whether a strawberry is tastier than a coconut, but one cannot argue whether a strawberry can be turned into a coconut.
Making fundamental changes requires knowledge and courage. Given the likelihood that the new European Parliament after 23 May 2019 will have even more anti-European members than the current one, the arrival of a federal Europe will take some more time. Unless the current intergovernmentalism within the European Council evolves into intergovernmentalism 2.0, which will stimulate the anti-Europe elements to push the existing internal conflicts, combined with the weak geopolitical position of the EU, to a total disintegration of the EU. Weimar history between 1922 and 1933 has taught us that a state full of bad governance and conflict can pave the way for a strong man who ruins everything and everyone. Or, such a crisis creates statesmen, equipped with the knowledge and courage to finally give Europe a federal form of government after two hundred years. Let’s hope for the last when – as the saying goes – ‘the shit hits the fan’.
For more information I refer to my book ‘Sovereignty, Security and Solidarity’. This book also contains a draft ten-article federal constitution for Europe. Watch the trailer.