Leo Klinkers, September 2019
Federal Alliance of European Federalists
The defenceless nature of values
The Dutch poet Lucebert wrote in 1953: “Everything of value is defenceless.” However, no matter how defenceless something of value is, people still want to keep them as good as possible: photos of our parents in an album, jewellery in a safe, money in the bank, fresh milk in the fridge, a baby in a safe cradle. We are always looking for a good place to protect the defenceless and vulnerable nature of valuable things as well as possible.
In this article I focus on
As a federalist, I am working with many others to establish a federal Europe. So, of course, I am thinking of a federal constitution. But that is not relevant here. For everything that I say in this article about the protection of values, it makes no difference whether we are talking about a unitary state or a federal state.
The need to protect values
Values such as – for example – people’s free development in search of a happy life in solidarity, security and prosperity are vulnerable and defenceless against the autocracy that is emerging in many parts of the world. Fed and supported by populist nationalism, with contempt for the rule of law, autocrats manipulate the procedures of their democracy, thereby undermining the inalienable sovereignty of the people.
Every people has autocrats. They usually lie in the caverns of a poorly formulated and poorly organised democratic system. They only emerge when defence mechanisms against their manipulation and deception are absent or so weakened that, with the concept of ‘democracy’ as a weapon, they can destroy this same democracy.
Autocracy is the ultimate oligarchy, revealing itself by governing from above by means of decrees. Without respect for representing the people from the bottom up. Let alone accounting for administrating from the top down to a people’s representation.
Europe, too, has a few such people. But let us not mention names now. It is more important to point out the contagious nature of autocracy. It also affects leading European politicians who certainly cannot yet be called autocrats. But they do show clearly that they like to govern from the top down much better than to look for their strength in constitutions and institutions that preserve and guard the values of ‘popular sovereignty’ from the bottom up.
They are not interested in offering a safe place for such values. Partly because they lack sufficient knowledge, partly because it restricts their free room for manoeuvre and partly because they are given too much room by the people to indulge themselves – without an understanding of the true constitutional and institutional building blocks of democracy – in ever more fierce government from above. And then – fed by the aftermath of the extreme economic neo-liberal thinking – they think they are doing a good job of it.
In another publication, entitled ‘People’s Sovereignty: the basis for circular policy making and federalisation’ (August 2019), I concluded with a refutation of a statement by Bill Clinton as President of the United States: “It is the economy, stupid. That may have been a valid adage in his day, but now it is no longer true. Under the threat of increasing autocracy, including in Europe, I think the adage should read now:
“It is NOT the economy, stupid. It is the sovereignty of the people,
organized within a true democracy,
based on a federal constitution,
under the rule of law.”
Where do we guard the value of ‘popular sovereignty’?
It is a common way of thinking that value judgments in the context of popular sovereignty and democracy can best be included in a charter. I do not deny that a charter is a good place, but it is not the best place. With the adage written above, I take the view that the best place to protect the fundamental values, seen from the point of view of ‘popular sovereignty’, lies within a constitution.
With the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, Council of Europe, Rome 1950) we already have such a charter. But after a de facto autocratic violation, the distance to the charter’s protection against the violated values is too great and too uncertain. Let me try to make this clear with a metaphor.
Suppose you have valuable things in your home. In order to protect them, you have installed an alarm system. In the event of a burglary, the police are automatically warned, but they are only there after 15 minutes. Then, the thief is long gone. Whether he will ever be caught is the question. The same goes for whether you will ever see those jewels again. An alarm system, connected to the police, is only a second-best option. The best option is to use day and night security in the house itself to immediately catch the thief before he can reach the value.
The meaning of this metaphor is: build in a defence mechanism that prevents damage to values from occurring. It is more effective to cut off autocrats who want to violate the values of popular sovereignty – and of the system of democratic accountability based on it – with an inbuilt defence mechanism, rather than trying to bring them to order after the violation by means of long-term and uncertain procedures of a charter. Without denying the usefulness of a treaty as a protection of values in the context of popular sovereignty, I would argue that this protection should first and foremost take place within a constitution.
In order to strengthen the in-built first defence mechanism the second best option should be applied as well by a constitutional provision that the state in question will be a party to the ECHR, with so-called direct effect. This means that the judicial authorities of the states that are members of the ECHR must examine all legislation and administration in the light of the ECHR. As an aside, all EU Member States are currently parties to the ECHR, but the EU itself is not.
With regard to the need to build in better defence mechanisms within democracies, I refer to an excellent article by Matteo Laruffa entitled ‘The institutional defences of democracy’.
Where in the constitution should the protection take place?
By taking the view that a constitution is the first and best place for the protection of the values of ‘popular sovereignty’, we enter the domain of legislation. This is not an area familiar to everyone. Without a little explanation of legislative technique, my position may not be sufficiently convincing.
The core of legislative technique
Laws have three essential parts. The quality of each part determines the strength of a law. The first part is usually quite short, only a few sentences, and contains the considerationof why that law is made. So that is a description of the goal. Goal equals value. That value must be protected by norms. With its articles 1 to X, the norms are the second indispensable part of the law. The third part is called the explanatorymemorandum. It explains the background, intention and argumentation of the law. Without that part, a judge is in the dark when interpreting a court case.
Well, when it comes to an ordinary law, we simply call the consideration: consideration. On the understanding that we in the Netherlands use a Latin word for this: Considerans. But when it comes to the consideration of a constitution (the mother of the laws) we call it: Preamble.
I ignore discussions among legislative lawyers about whether or not a constitution needs a preamble. For me, that is not a question. As a public administration expert with a constitutional background, it is unthinkable that you should be allowed to make binding rules for citizens without describing their goal, the value. Then, with the instrumental norms, i.e. the articles of the constitution, to indicate how you think you can protect that value. I therefore see the fact that the Dutch constitution does not have a preamble as a shortcoming of the Dutch constitutional system. I also ignore the question of whether a preamble should be short and powerful, or thorough, embedded in a well-considered motivation and argumentation. I opt for the second option.
The preamble as the soul of the constitution
The view that the protection of values should be regulated primarily within the domain of constitutional law itself – as the best defence mechanism against autocratic seizures of power – forces me to indicate where the right place is. Well, that is the Preamble, the consideration of why the constitution is made.
Values in the context of popular sovereignty and so on are the soul of inalienable rights of citizens. The text of this – part legal text, part explanatory text – should be extremely precise. And it requires the utmost skill on at least two points: knowing what the content should be and knowing how it should be formulated. The content is a matter best expressed by the citizens themselves in accordance with ‘the wisdom of the crowds’. Whereas form is a task and a matter for professionals who know how to design a correct constitution for that content. Metaphor: the customer explains what he wants on the pizza and the pizza chef makes something tasty out of it, while the pizza chef, as a professional, refuses to make a pizza if the customer says that he would like to have a whipped cream pastry on top of the salami and anchovies. That’s not appropriate on a pizza.
Both aspects – the methodologically correct deployment of citizens and professionals – were trampled in the process of drafting a European constitution led by Valérie Giscard d’Estaing (2003 to 2005). The result was the Treaty of Lisbon, the worst conceivable legal document ever written in Europe. For more information on the role of citizens and professionals in the design of a federal constitution for Europe, I refer to my book ‘Sovereignty, Security and Solidarity’.
The seriousness of the case considered in more detail
In recent years, there has been so much rebellion in the world against authorities that we have to ask ourselves: what is going on here? Democracies seem to be eroding, autocracies seem to be exploding, citizens are desperately and fruitlessly searching for their role and position in these processes of democratic breakdown. For this seriously increasing problem, I refer to an excellent article by Shany Mor: ‘Nobody understands democracy anymore’.
Whether it concerns the yellow shirts in France, the demonstrations in Hong Kong, in England the resistance against Brexit and the suspension of parliament, in Russia the demonstrations against Putin, in South-East Indonesia in the Moluccas and in West Papua the ever-increasing resistance against Indonesia, the relentless struggle between Israel and the Palestinians, the aspirations of regions such as Catalonia, the Basque Country, Scotland, Wales to break away from the motherland, the tensions in Cyprus between the Greek and Turkish parts, the division in Ukraine between the East, the West and the Crimea and how the Lisbon Treaty works as a split within the EU on issues such as immigration and the euro.
This list of rebellion and resistance versus autocracy is longer, but I will leave it at that. It is not a question of whether we should support Scotland’s quest for independence or not. It is not a question of taking sides. The question is: do we or do we not want to give every people in the world – and hence the people of Europe – constitutions with a preamble based on the values of popular sovereignty and all that goes with it?
If European Heads of Government think that the next decade will be a period of calm and tranquillity, they are probably making one of the most important mistakes of their lives. They will be thrown back, with or without force, to the need to reinvent the links that make up the chain of ‘popular sovereignty’:
What I have said so far applies both to unitary states and to federal states. As a federalist, I designed together with Herbert Tombeur in the European Federalist Papers (2012-2013), a federal constitution with a Preamble for a federal Europe. In the context of the Federal Alliance of European Federalists (FAEF), we are working on an improvement of this Preamble because the seriousness of the erosion of democracy within Europe forces us to be extremely alert. Because everything can always be improved, a working group of the World Federalist Movement Netherlands (WFBN) has set itself the task of improving our existing version in the course of this autumn 2019. This will then be the subject of consultation with the citizens of Europe.
Leo Klinkers, The Hague, August 2019
Federal Alliance of European Federalists
The purpose of this memorandum
This memorandum is intended for all those who endorse the concept of ‘popular sovereignty’, but who regularly read in the newspaper that political authorities are violating this concept. It is not only citizens who have problems with this. Some representatives of the people, administrators and civil servants also struggle with the question of how society and government should relate to each other. As a federalist, however, I am particularly thinking of those who advocate a federal Europe.
It disturbs federalists that, for more than two hundred years, the federal United States of Europe has been unsuccessfully attempted. I am going to try to make it clear that the reason for this lies not only with unwilling and ignorant European politicians, but also – and perhaps above all – with the federalists themselves. In the forty years that I have spent on the subject of a federal Europe, two things have become clear to me.
First of all. I estimate that 95% of the thousands of Europeans who profess federalism do not know the essence of federalism. On a large scale, federalist movements lack basic knowledge of this particular form of state organisation. The lack of the necessary knowledge also means that there is a lack of a motive for action and a lack of prospects for action. Those who do not know where the north is, will continue to wander. It took Moses only forty years to reach the promised land. The European federalists – after the successful first federation in America between 1787-1789 – have been on the road for two hundred years. When they meet each other in ‘the desert of the anarchy of European nation states’, they prefer to argue rather than organise collectivity.
Second. Because they fail to organise collectivity, the many federalist movements are unable to unite in a federation of federalist movements. Their degree of organisation is shamefully flat. Whatever it is said, the well-known federalist movements in Europe are decentralised unitary movements. They have not organised themselves one level higher in a federation of federalist movements with a diversity of motives and cultures. A federation that can provide for the common interest of the individual movements: the creation of a federal Europe.
In this respect, they are blind to the existence of thousands of private federations in Europe, of which the world of football is perhaps the most striking: individual clubs > federal national bond > federal European UEFA > federal global FIFA. Now pay attention: those individual football clubs that form the basis of this federal system are the bosses in their own homes, they are and remain sovereign, autonomous with their own cultural identity, their own administration, their own members’ council, their own stadium, their own shirt, their own fan club, their own club song, their own champion’s party and their own Christmas party. The federal bond only takes care of things that individual clubs cannot arrange themselves, such as, for example, a match schedule that makes it clear who is to be played against the next week. Also, for example, the training of referees and the introduction of the VAR. Federalist movements that aspire to a federal Europe have so far learned nothing from the power of the wide array of thousands of private federal organizations.
Let me now turn to the three concepts in the title of this document: sovereignty of the people, circular policy making and federalisation.
By the way, when I organized my thoughts, it turned out that this memorandum would be an exposé of everything I have learned since 1970. So, you are reading the path of my career.
The concepts of popular sovereignty, circular policy making and federalisation
The sovereignty of the people
Since Aristotle, many books have been written about the concept of ‘popular sovereignty’. However, it can also be written in one sentence. People’s sovereignty means: ‘all sovereignty rests with the people’. Any form of state organization and the resulting policy must be traceable to this adage. For citizens, anywhere in the world, there is only one value, namely the inalienable right to pursue their happiness, supported by such an arrangement of the state that it is not concerned with itself but with an adequate arrangement of the state from which policy emerges that supports the happiness of those citizens. Happiness in the broadest sense of the word: freedom, security, development, prosperity, solidarity and enjoyment of one’s own cultural identity.
Creating circular policy making
The concept of ‘circular policy making’ is derived from the concept of ‘circular economy’. That is economy that does not produce waste. So, without destroying nature and the environment. ‘Making circular policy’ is designing and implementing policy without producing policywaste, such as over-organization, over-legalization, over-bureaucratization, organizing citizens’ participation without drawing consequences and expensive policy notes that disappear into a drawer. ‘Making circular policy’ implies intercepting systematically relevant signals from society, and then also responding to these signals with measures that can be traced back to that adage ‘all sovereignty rests with the people’. All wisdom and truth also rest with the people. Provided it is acquired in a good way. Circular policy making is part of the more comprehensive concept of ‘Societal Policy Making’.
Between 1970 and 2017, I called this way of working ‘interactive policy making’ because it is the result of an in-depth dialogue with the citizens and implementers involved: this is working from the outside in and from the bottom up. I was not alone in this. In 2004 James Surowiecki came up with the name ‘The wisdom of the crowds’. In the meantime, the term ‘interactive working’ has become seriously polluted. Thinking about innovation, however, never stands still. My colleague Peter Hovens made the relationship with circular economy and so our work is henceforth called ‘the methodology of circular policy making’. I’ll sketch that in a moment.
In 1787, thirteen states in America (former colonies of England) made the first federation in the world – based on the thinking of European philosophers. Federalisation is a form of cooperation between countries in which the member states remain sovereign and autonomous but place a few interests that they themselves can no longer represent in the hands of a federal organ. Where serious problems sometimes arise within federations, as is currently the case in America, this cannot be traced back to the constitutional federal structure of the state, but to the lack of built-in defence mechanisms by which wrong people can manipulate the procedures of democracy in order to gain positions for their own benefit.
Since the arrival of the first federation in America, thousands of European citizens have been trying to establish a federal Europe for 200 years. This has always failed, even though 40% of the world’s population now lives in twenty-seven federations. It has been understood in those countries that, in changing circumstances, the creation of a federal state structure is the best instrument for supporting the citizens’ quest for happiness.
Designing the methodology
During my studies at the Law Faculty of the University of Utrecht (1964-1968) I learned concepts such as sovereignty, democracy, trias politica, checks and balances, constitutional monarchy, confederal and federal states. Incidentally, without any awareness of their real meaning. Like most students, I studied not to deepen my knowledge, but to reproduce compulsory knowledge on exams and then forget it as soon as possible to make room in my head for a new load of flat knowledge for the next exam.
In 1969 I got a job at a municipality and only then did I learn the deeper meaning of principles of constitutional and administrative law. I was surprised, however, that policies were made from above; from the knowledge, experience and dossiers of politicians and civil servants; without consulting the citizens concerned. They made policy as they have done for years. To the best of their knowledge, on the assumption that people at the town hall knew what was good for those citizens. And that is no different today.
In 1970, I accepted the invitation to return to the Faculty of Law to build up teaching and research in public administration. Only then did I start studying. Supported by extensive libraries, I started to analyse the functioning of governments. I discovered that more than ten different academic disciplines contain knowledge that is applicable to the functioning of governments. In addition to constitutional and administrative law, think of political/ theological/humanistic philosophy, systems theory, social psychology, cybernetics, psychoanalysis, international law, organisation theory, management theory, communication theory, forensic psychiatry, theory of argumentation, causality theory, formal logic, methods and techniques of scientific research and a few more that do not come to my mind now.
By connecting parts of those disciplines, I was able to design a methodology for result-oriented policy, with full involvement of citizens and practitioners from the very beginning of such a process. Not, therefore, as is the case with citizens’ participation, where a government has already identified the problem and has already devised the solution. And then – fighting against a defensive government – it will not be possible for citizens to recognise either the problem or the solution. No, I am talking about policy that can count on the support of deeply involved citizens in the process of policy making, assured of an active attitude on the part of those who implement it. This methodology – under the name ‘Societal Policy Making’ – consists of four architectures as the building blocks for a successful process of change:
A. Analysis phase:
a. Team composition: includes team formation, team building, housing, materials, equipment, budget.
b. Environmental Analysis: analysis of everyone who needs to be involved; the number is not relevant; if there are thirty, okay; if there are thirty thousand, then okay as well.
c. Consultation Round: the key figures in the Environmental Analysis are preferably consulted by means of an one-on-one interview; they are, and will continue to be, involved in the policy process; in addition to one-on-one interviews, we use other interviewing techniques for larger groups of people in accordance with the method of the so-called ‘nominal group’.
d. Anthology: the contributions made by the people consulted are recorded as literally as possible and sent back (after having the input systemized) to the people consulted so that they can see that the input is actually being taken seriously.
e. Problem and Cause Analyses: The material of the Anthology is analysed for causal chains and their layered structure. Moral: only by concentrating policy on an approach to the lower causal layers can you achieve success. Otherwise, you will get stuck in treating the symptoms.
f. Expert Meetings: experts are put to work to detect and remove any blind spots in the analysis.
B. Synthesis phase
g. Vision note: in a few pages, a sketch of the final goal to be achieved is presented.
h. Strategic solution directions: just as there are several roads leading to Rome, there are always several solution directions.
i. Sub-targets: within those strategic solution directions, there are intermediate goals. Example. If you travel from The Hague to Rome – via Belgium, Germany and Switzerland – you should definitely reach Maastricht or Brussels as an intermediate goal. Achieving such an intermediate goal is important because then you know two things: you are no longer in The Hague and you are on the right track. However, when you see the sign Hamburg you also know two things: you’re not in The Hague anymore, but you’re on the wrong road.
j. Concrete actions: the conclusion of the development of a circular policy process is contained in an Action Book. Making it requires a great deal of knowledge and effort, otherwise it becomes nonsense actions. The actions are aimed at eliminating the causes that have emerged from the analysis.
C. Implementation phase
And only then does the ‘real’ work begin: the concrete implementation of the concrete actions to achieve the concrete intermediate goals, to achieve the final goal.
The method is guided according to the principles of process management, including knowledge management and structural management under the adage: ‘The process is more important than the result’. And that means that you have to know whatyou need and howto do it.
The application of this method in practice
The construction of the four architectures came into being in the course of the seventies. At first in rough contours but slowly refined by discussing them with my public administration students and small projects outside the university. As a result, the work gained some fame, leading to a commission, in 1982, from the chief of police of Amsterdam.
Due to all kinds of circumstances and developments, the police force was involved in matters of corruption and fraud, had a quarrel with the city council, the public prosecutor’s office and with many organisations such as public transport, the taxi world, the hotel and catering industry, etc. The new chief of police had the task of cleaning up and – having been informed about this methodology by his staff – put me to work. This led to an entirely new policy on policing in Amsterdam, a new organisation and a new management. With a turnaround time of three years. The Action Book to be carried out included about 150 projects, laid down in a Covenant, signed by the Mayor of Amsterdam, the Minister of the Interior, the Minister of Justice, the Chief Public Prosecutor in Amsterdam and the Chief of Police himself.
This assignment made me decide to leave the university in 1983. Since then, this method has been used in dozens of projects. A few examples:
I’ll leave it at this list. It is only intended to indicate that this method applies to every issue, that is to say, independently of the policy area. It can handle any complexity, provided that …… we can work as it should be, that is, according to Standard Operational Procedures (SOP), which I have outlined in pages 4-6.
In order to transfer knowledge of this SOP, I conducted many multi-day courses between 1983 and 2000. In and outside the Netherlands. One of the students was Peter Hovens. Although others also started to work with this methodology, Peter turned out to be the only one who committed himself to it in principle and thus became my colleague. Now, in 2019, he believes that the time has come to write a book about ‘circular policy making’ with all the gained knowledge and experience. This will be published in 2020.
The relationship with the concept of ‘federalisation of Europe’
I was co-founder of the Association for Public Administration in 1972 and then as vice-chairman in charge of the portfolio to set up public administration education in the Netherlands and internationally. The international work took place within the International Institute of Administrative Sciences (IIAS), the International Association of Schools and Institutes of Administration (IASIA) and the European Group of Public Administration (EGPA).
In these contexts, I met a number of Flemish colleagues at various Belgian universities. I discussed with them the progress of the far-reaching constitutional reforms in Belgium (started in 1960), aimed at transforming the unitary state into a federal state. Only by means of a federal state could Wallonia (French-speaking) and Flanders (Dutch-speaking), and a small German-speaking part, continue to live and work together without shooting at each other. Only then did I learn the intrinsic meaning of a federal state organization to support the citizens in the pursuit of their happiness. Since the principles of federalisation therefore come from the same source as the creation of bottom-up policy – namely from the concept of ‘all sovereignty rests with the people’ – in addition to developing the method of interactive policy, I went on to study the basic building blocks of federalisation, to be applied to the establishment of a federal Europe.
In order to get closer to the far-reaching federalisation process in Belgium, I decided to move to Belgium in 1996. There I met a director of the Flemish Ministry of Foreign Affairs, Herbert Tombeur. His knowledge of federalism filled the gaps that had arisen in my case despite my intensive studies on the subject.
I was particularly interested in the way in which the world’s first federal state was established through the work of the 55 members of the Philadelphia Convention in 1787, supported by the 85 Federalist Papers of James Madison, Alexander Hamilton and John Jay between 1787 and 1788. One of the claims was that the American federation was based on the philosophical thinking of European philosophers (Aristotle, Althusius, Montesquieu, Rousseau), while after 1787 there had always been a vain attempt to choose a federal form of government for Europe as well.
In 1999, Robert A. Levine, a top official in America’s federal administration, wrote in the New York Times that the then EEC was doing itself no favours in establishing a monetary union (under the Maastricht Treaty in 1992) without first establishing a federal foundation. He argued that this was an uncertain future for the euro and advised to start by writing a European version of the Federalist Papers. That advice remained in the conversations between Herbert and me for a long time. As no one else in Europe had taken that advice, we decided to write the European Federalist Papers ourselves between August 2012 and May 2013. In 26 Papers we explain how bad the EU’s intergovernmental operating system under treaty law is, why that is bad, what the power of a federal state is, why it should replace the current system and what a strong European federal constitution looks like.
Result? Zero. The political, academic and media attention to the way to govern a group of countries that want to preserve their sovereignty and cultural identity but want to find protection in a federal body that defends their common interests was zero and is still zero.
A Citizens’ Convention as a link between popular sovereignty, circular policy making and federalization
If you look again at the beginning of this article, you will see the link between popular sovereignty, circular policy making and federalisation. It is the link of what one needs to know and to handle in cases of a complex process of change.
People’s sovereignty is the fundamental source for the creation of a federal state. This implies that the people themselves sign up to a federal constitution. No federal constitution of, for and by the people? Then no federal state. But this signing – constitutional termed ‘ratification’ – requires such an organisation that two things are guaranteed:
A Citizens’ Convention such as that of Philadelphia in 1787 – an unparalleled constitutional and institutional formula for success – is the instrument for offering these two guarantees. In a book that you can see at the end of this note, I explain in detail how to set up a Convention of 56 people, what its mission is, how it is to be carried out, and what role and influence it will give to the citizens of Europe in its implementation. Now I mention that role and impact by referring, for the sake of brevity, to our methodology of circular policy making, outlined at the beginning of this article. This methodology involves the citizens of Europe in the composition of a federal constitution in a planned and systematic manner. And thus, not by means of well-meaning but mis organised collections of so-called ‘citizens’ assemblies’ that can only achieve quasi involvement because of a lack of methodological knowledge.
The need for anchoring
In line with the principle that all sovereignty rests with the citizen, I have therefore been dealing with two expressions of sovereignty since 1970. Firstly, the methodology of policy making from within society itself. In 2000, I needed to anchor my knowledge – and the experiences with its application – in a trilogy. Here are the title pages. The first two books can be downloaded for free via the links:
In the first book I recorded the experiences with the methodology, applied from the beginning of the eighties until the turn of the century. The second book contains about 180 essays on commandments and prohibitions in politics and policy. The third book is an online course (onlinecursus) Dutch language only) to learn this subject under our guidance. The archer with his arrow symbolizes that you will only hit your target if you know what you have to do before you let the arrow go. Now we call it ‘making circular policy’.
The pursuit of a federal Europe is also anchored. One of the main reasons for the continuing lack of a federal Europe after two hundred years is the curious absence – I have already mentioned this – of a federation of federalist movements. No matter how many such movements we have had, they are all decentralised unitary movements. They have never been able and/or willing to increase their level of organisation.
Federalist organisations that share the same goal – the establishment of a federal Europe in this context – but are not prepared to strengthen their degree of organisation will never achieve their goal. That is why six people, two from Italy (Lorenzo Sparviero and Mauro Casarotto), two from France (Catherine Guibourg and Michel Caillouët) and two from the Netherlands (Peter Hovens and I) founded the Federal Alliance of European Federalists (FAEF) in Milan in May 2018. Its aim is to offer federalist movements and, furthermore, any organisation that aspires to a federal Europe, the protection of a federation. In this way, to create critical mass through ‘Federating the Federalists’.
A second objective that we are pursuing with FAEF is ‘Educating the Federalists’. We see that on a very large scale there is a lack of thorough knowledge of what a federation is. There are plenty of opinions, but knowledge is what we need. Politicians who, since the failed Maastricht Treaty of 1992, have been making false statements about federalisation and a federal Europe through conceptual ignorance, have led citizens to believe that federalisation is a bad thing. Well, that is on the same level as claiming that the earth is flat and that the sun revolves around it.
Our goal is to create the United States of Europe, following as closely as possible the process that took place in America in the 18th century. Without increasing the degree of organisation of federalist movements and without sharing the basic knowledge needed to create a federal Europe, we will not make any progress.
Here, too, there is a need for anchoring in order to prevent this federalist FAEF initiative from being swept away by the banalities of history.
This is our FAEF Logo
And this is the trailer of my book ‘Sovereignty, Security and Solidarity’. In order to share a deeper understanding of federalization, I have developed a course on federalism (English language only) based on the guild-system in previous centuries: Apprentice, Journeyman, Master.
President Bill Clinton once made the following comment to underline the importance of economics: “It is the economy, stupid.” Now that in many countries in the world, and certainly not only in Europe, the foundations of the concept of democracy are eroding, it is time to choose a different adage:
“It is NOT the economy, stupid. It is the sovereignty of the people,
organized within a true democracy,
based on a federal constitution,
under the rule of law.”
Dr. Leo Klinkers, Federal Alliance of European Federalists (FAEF)
In December 1949, Indonesia concluded an agreement with the Netherlands to establish a federal state under the name of the United States of Indonesia. This consisted of seven states. The Moluccas fell under the state of Eastern Indonesia.
The president of the federation, Sukarno, started to dismantle the federation after only a week, in January 1950. His aim was to establish a unitary state, the Republic of Indonesia. The conclusion of the agreement with the Netherlands on the establishment of the federation was only a strategic move towards becoming an UN-sanctioned sovereign state. Sukarno did not intend to lead a federal state but wanted to become the autocratic ruler of all the peoples that were part of the federation in December 1949. The Indonesian signature on the agreement in December 1949 was therefore based on a false motive.
Contrary to what is claimed, it is a characteristic of a federal state that the its member states are sovereign and autonomous. They have the power to regulate their own affairs, whereby interests that the federated states cannot represent on their own are taken care of by a federal body that has the power to take decisions on a limitative range of subjects.
The Moluccas did not want to lose their sovereignty as part of a federal state of the federation and decided in the fourth month of the federation, April 1950, to proclaim their own independence. As Sukarno had done in 1945. The long and bloody struggle for freedom that followed was won by Indonesia with the execution of the leader of the Moluccan resistance in 1966, Dr. Chris Soumokil. In the meantime, Indonesia had already completely dismantled the federation in August 1950 and in the sixties also occupied West Papua.
This is one of the many examples in which violence against oppression and the fight for freedom is sanctioned by the UN for the simple reason that the winner is more powerful than the loser. Followed by sanctioning by other countries because good relations with the winner mean economic advantage.
The peoples of the Moluccas and West Papua have never accepted Indonesia’s violent annexation. This has regularly led to bloody action against rebel movements in the Moluccas and West Papua. Sometimes with the character of a religious war. Around the year 2000, for example, Christian villages in the Moluccas were attacked by Indonesian Muslim army units. This also resulted in profits in the area of divide and rule because part of the Moluccan population is Muslim.
The current rulers of totalitarian Indonesia should not forget that freedom fighters have the time factor on their side. The Netherlands fought against the dominant Spain for eighty years, declared independence during that struggle in 1581 and gained that independence in the Treaty of Westphalia in 1648. And let’s not forget Vietnam. Suppressing peoples with an occupying power is not a quiet possession.
If Indonesia assumes that in the long run there will be peace in the Moluccas and West Papua, then they are mistaken. There will never be peace as long as injustice and violence are more important to those in power than allowing a people their freedom under the principles of sovereignty, democracy and the rule of law.
Today, 40% of the world’s population lives in 27 federal states. And more are becoming so as the 21st century progresses. Against this background, Indonesia has only two alternatives. Either continue the repression by force or restore the original federation of December 1949. Including West Papua as part of the state of the East Indies.
Presidents come, presidents go, but an oppressed people who want their legitimate freedom will always exist.
Leo Klinkers, July 2019
The establishment of a state
The way in which a state is designed largely determines the question of whether the people within that state feel happy. A well-built state is no different than a well-constructed chair or a well-prepared meal. On a wrongly made chair you get back pain and a bad meal makes you vomit. It’s about craftsmanship, based on standards.
If we assume that a democratically-implemented state is the least bad form of government (Churchill’s words), there are still different constitutional and institutional forms. The Netherlands is a constitutional monarchy in the form of a decentralized unitary state. France is a republic in the form of a centralized unitary state. Germany is a republic in the form of a federation.
I am now only talking about the creation of a federal state and base what follows on the ideas of political philosophers from Aristotle onwards, combined with a few examples from federal practice.
Popular sovereignty as a philosophical principle
A federation is based on a philosophical and a practical starting point. The philosophical starting point is based on popular sovereignty. In other words, all sovereignty rests with the people. This sentence dominated the Declaration of Independence of 1776 and the first federal constitution in America in 1787. In other words, for the first time in Earth’s history, a number of politico-philosophical considerations were contained in concrete binding law (constitutional) and a form of organization attached to it (institutional).
Those who do not accept that sovereignty rests with the people accept that all power is in the hands of an autocrat. And then the people are always the losers.
Representation of the people as practical principle
But the people cannot meet every day on the square to make all the decisions. So, it must be represented. That implies elections with the guarantee that they are free, can take place in seclusion and guarantee that minorities are also represented. The latter – representation of minorities – means that elections based on a district system with the adage ‘the winner takes all’ should be avoided in any case. See the misery with the two-party system in America and England.
The federal state from the bottom up
The sovereignty of the people plays in layers, from the bottom up. The first and bottom layer is the family. It can make decisions autonomously. However, the family has interests and/or concerns that it cannot control itself. It therefore asks a higher level – for example, a neighborhood body – to share the sovereignty of the family with some of the family’s powers in order to represent these interests/concerns. In this way, a federal state is built from the bottom up. From layer to layer.
A simple example: if, on the occasion of the World Cup football, many people in the Netherlands want to show the colour orange (which is the colour of the royal family), but not one family in the street can provide orange in the entire street, then an occasional body can be set up that, with a donation from all the families in that street, will provide a beautiful orange scene.
That is federal organizing. But the federal body that takes care of orange throughout the street does not have the authority to decide that only hamburgers may be served on the joint barbecue after the final victory, unless the residents of that street have granted that authority to that federal body. The powers of a federal body are always limitative and precisely defined. The fact that, in practice, public officials will always try to push the limits of these limitative powers and even go beyond them is not a characteristic of the structure of a federation, but of the quality of the people within a federation who are looking for more and more power. This is a characteristic of political functioning and not of federal organizing.
The most important values of a federal state: freedom and happiness
The most important value that the federal state must guarantee is to support the people in freely pursuing their own happiness. Nothing more and nothing less. In order to clarify the essence of this, I recently wrote a (new) preamble for a European federal constitution: see https://www.faef.eu/the-europe-of-the-citizens/.
A preamble to a constitution describes the values that need to be preserved and guarded. Next, the articles of the constitution determine how this preservation and monitoring will be guaranteed.
These concepts of ‘freedom’ and ‘happiness’ played a central role in the Declaration of Independence of 1776 and the first federal constitution eleven years later in 1787 in America. The concept of happiness within freedom then became the basis of those rules in the constitution that were to be called the ‘checks and balances’. Just as the English had curtailed the autocratic powers of King John Lackland in the Magna Carta in 1215, and the Netherlands in 1581 with the Declaration of Abandonment said adieu to the Spanish ruler, so the thirteen colonies in America in 1776 said that they would no longer wished to obey the English king. But to say that you want to be free is one thing, to make sure that this is legally valid is two. And that’s what they did by designing the federal constitution.
They knew from philosophers like Aristotle and Rousseau what popular sovereignty meant, they knew from Althusius what the building blocks of federal thinking were, they knew from Montesquieu what the trias politica meant and for the first time in the history of mankind they came up with a political form in which those different pieces of the politico-philosophical puzzle were put together.
The ‘trias politica’ and the ‘checks and balances’
But the ‘trias politica’ are just two words. The underlying meaning is as follows: ‘You shall separate the three branches of the state – the legislative, the executive and the judiciary – in order to prevent one from taking over the other and re-establishing autocratic rule’. However, they also knew that it would be inevitable that these three branches would have to intervene in the territory of others from time to time. So, the trick was: build in so-called ‘countervailing powers’. So, if one of the branches were to operate in the territory of another, that other branch would have to have the power to push that one back into its own territory.
They designed a brilliant system of checks and balances within a brilliant constitution. The most important aspect of the brilliant constitution was to make as few articles as possible. So not a millimeter of rules that would be about the interests of the individual states. Only the general interest of the thirteen should be regulated jointly. So they made a constitution of only seven articles, the core of which was a) the countervailing powers of the thirteen states vis-à-vis the federal body, b) the countervailing powers between the three branches within each state (it should be noted that in a federation the member states remain independent and each has its own legislative, executive and judicial power) and c) the countervailing powers between the three branches at the federal level.
A small example from the American constitution that Herbert Tombeur and I have adopted in the draft of the European federal constitution (see our European Federalist Papers 2012-2013): the legislative branch consists of the House of Citizens and the Senate. Both can make laws. If the House drafts a law, it must be submitted to the Senate. If it rejects it, they have to start over. If both Houses agree it goes to the President. He must decide within ten days: agreement or a well-founded veto. If a veto, then return to the House which either throws it away or accepts it again by a two-thirds majority, with or without adjustment based on the President’s arguments. Then back to the Senate. Same procedure. If both bodies agree, the President must also accept it.
This structure is perfectly transparent. Whether or not it meets the value of the state supporting the people in their free pursuit of happiness does not depend on that structure but, once again, on the level of quality of the people/politicians in that structure. At the moment, we can see that the US President is trying, through an outdated and therefore retarded system of elections, to achieve autocratic monopoly. But it is precisely the ingenious system of checks and balances that puts him in his place.
Only if he succeeds in creating an international conflict – after provocations – in such a way that it becomes an armed conflict will he be the master of some constitutionally based ’emergency laws’. And then the ‘shit hits the fan’, because then he no longer has to answer to anyone. De-escalating action is now required. Although, if at all it will be possible to de-escalate the conflict with Iran created by Trump himself, he will immediately start a new conflict because he knows that he can only establish autocratic rule if he gets his hands on the emergency laws. On the other hand, I think it is conceivable that he will then start a new civil war within America, which he will lose anyway.
The rule of law as the core of a democratic state
As an administrator, being accountable to a people’s representative body is at the heart of a democratic constitutional state. This refers to the rule of law. That means: no one is above the law. If there is one principle that must be observed, it is this. It is one and indivisible with federalism. And thus, the absolute counterpart of the intergovernmentalism of the European Union.
In this intergovernmentalist system, administrators – based on a treaty instead of a constitution – take all the important decisions, binding on the citizens, without having to justify them to a transnational parliament freely elected by the people. Rousseau has already made it clear that within a democracy there will always be a tendency to turn it into an ‘elective aristocracy’, which then always tends towards an oligarchy. In this way, the most important functions are divided among themselves in a small circle.
These tendencies are to some extent present in every democratic state. Also, in the Netherlands. In scientifically substantiated figures: approximately 2.5% of the electorate (approximately 300,000 people) divide the most important posts among themselves in the political, administrative and official bodies, in the permanent and ad hoc committees, in science and in industry. Governing on the basis of a Coalition Agreement strengthens this process to the detriment of the strength of the parliament that must be in place as the representative of the adage ‘all sovereignty rests with the people’, which implies that the executive power is always accountable to the parliament. But in reality, the parliament is there to cover the pre-cooked measures of the Coalition Agreement. Only when a minister operates too bad, he or she will be sent away. The way in which the executive power determines what the legislative power of the House of Representatives should find and decide has now also reached the decision-making spectrum of the Senate. It is no longer a body that, regardless of the political delusion of the day, assesses whether a law is good or bad, but follows – albeit often under protest – what the Coalition Agreement prescribes.
This is extremely important in an intergovernmentalist system such as that of the European Union. Look again at the way in which two to three leaders of the European Council recently set aside the ‘Spitzen Candidates’ earmarked by the European Parliament for the Presidency of the European Commission, preferring someone who would not endanger the unbridled power of the European Council.
In the long run, any intergovernmentalist system will crack and squeak, conflicts will arise because there is top-down government without accountability, Member States do not comply with agreements under treaty law, decisions are not taken on the basis of a vision of the general European interest of the Member States as a whole, but on the basis of an exchange of the national interests of nation states. And then we have to wait for the ignition of the fuse in the powder keg.
The Convention of Philadelphia
Between 1776 and 1787, the 55 members of the Philadelphia Convention realized this. The thirteen states were about to attack each other with weapons. What was done? Contrary to the task of repairing the errors in the treaty, they threw away their confederal treaty and in two weeks they came up with the basis for designing a draft federal constitution. They took a few more months to work it out and presented it to the people of the thirteen states. If the people of nine states agreed, the federation would legally enter into force. And that took place in 1789.
Federalists have been making, for many decades, a classic mistake in their pursuit of a federal Europe. A mistake that stubbornly blocks the intended result – a federal Europe. That is the repeated and pointless attempt to adapt the treaty basis of the intergovernmental EU system in such a way that it automatically becomes a federation. Well, you may disagree as to whether an apple is tastier than a pear, but there is no point in disagreeing as to whether you can turn an apple pie into a pear pie.
There is only one way to create a federal Europe, and that is to follow exactly the same procedure that the founding fathers of the Philadelphia Convention did in 1787: throw the treaty in the bin, never look after it again and, from the point of view of European philosophers, design a federal constitution in accordance with the standards that apply to it: from, for and by the people. I could also put it another way: because the standards are known, but two hundred years after the first federation in 1787, and seventy years after the Second World War, there is still no European federation, then there has always been a wrong way of operating. Time to stop pumping around opinions and to start studying how things should be done. Namely as the founding fathers did in 1787.
Exactly the same procedure should be used for the United Nations. Stop making pointless attempts to amend the UN Charter so that the UN can finally become a federal body that provides for a number of common interests that individual Member States can no longer take care of on their own. All the energy that is directed towards the wrong construction will only lead to more back pain and the need to vomit. These include the 60 million refugees in camps and the many refugees who are drowning in the Mediterranean. The recent appeal by the United Nations to the European Union to resume rescuing refugees in that sea marks the meaningless control of both intergovernmentalist operating systems. They are at the end of their political life cycle and therefore belong in the bin. Trying to repair system errors in a non-functional treaty only leads to new problems in the 2-4-8-16 series and so on.
The concept ‘federalism’ and the most important standards
Federalists have an inexhaustible tendency to speak out on policy issues in endless debates. However, there is no federal agricultural policy, no federal migration policy, no federal education policy and so on. You do not have to be a federalist to have a particular view of a particular political and social issue. In other words, federalism is not about specific policies, but only about the way in which cooperation between independent entities is regulated in legal and organizational terms. When it comes to a combination of states, it is the organization of the state. When it comes to private cooperation, such as the relationship between individual football clubs, their national federal bond, their European UEFA bond and their FIFA as a world bond, we are talking about a private federation. There are many hundreds of them in Europe. Big and small. But after 200 years of complaining, there is still no federal Europe. Why not? Because there is no craftsmanship. European federalists lack sufficient knowledge how to make a federal Europe.
Providing craftsmanship requires a) acquiring fundamental knowledge about elementary federalism (i.e. the task of educating the federalists), b) increasing the degree of organization of all single federal movements (i.e. federating the federalists) and c) building a federal Europe with the standards of federalism (i.e. applying standard operational procedures). And zero energy to spend on things that have nothing to do with it.
Not only is there no federalist policy, but there is also no diversity of federal systems, contrary to what many federalists claim. Some talk about Dual Federalism, Co-operative Federalism, Competitive Federalism,’Fiscal Federalism, New Federalism and other inventions. Nonsense.
There is only one concept of ‘federation’, based on standards. If these standards are 100% adhered to, it is a strong federation. If one is unwilling or unable to adhere 100% to these standards – as is the case with the Belgian federation, for example – then we are dealing with a weak federation. The further one deviates from the standards, the greater the risk of the federation collapsing. This has happened a few times in Africa, Asia and Europe. Nevertheless, 40% of the world’s population now lives in 27 – partly strong, partly weak – federations. It is this way of talking about federalism, which deviates from the standards, that has led some federalists to the misconception that ‘the intergovernmentalist EU also looks like a federation’.
The most important standards are:
Within the use of standards there is room to vary. Two examples. In one federation one can conclude that foreign affairs as a whole must be at the federal level. In other federations, for example in Belgium, foreign affairs have been identified as a common interest to be promoted by the federation, but Flanders and Wallonia are allowed to pursue their own foreign policy for subjects that do not fall under the federal authority. Another example concerns the tax system. Normally, a fiscal union is built within a federation. For example, in America. The Member States levy tax for the federal body and therefore pay it off. The federal body pays out money to the Member States in the event of investments or calamities. In practice, it may then be the case that a Member State pays more federal tax one year than it receives benefits in return, and the opposite situation the following year. The Member States themselves retain their own tax systems and are allowed to compete with them. Texas, for example, tries to attract with low rates companies and individuals from California, which has the highest rates. These examples therefore relate only to space that exists within fixed standards for the construction of a federation.
In short: striving for a federal Europe is only the professional construction of a safe and sustainable house. Which furniture should be in that house is not a property of a federation, but of the taste of those who are going to live in it.
Our assignment and task
And that – the construction of the federal house – is what still needs to be done in Europe: zero energy spending on the senseless attempts to transform the Lisbon Treaty into a federation. This will exacerbate the internal conflict, the external weakness of the geopolitical position and the antagonistic cooperation on policy issues that have to be considered in the general interest, even more than is already the case.
Here, too, is a task for the world’s federalists to stop trying to amend the UN Charter and, above all, to stop spending all their energy on considering policy issues, however essential they may be for the survival of our Earth. These important issues can only be addressed within a state structure that acts on the basis of the common interest of the Member States.
If countries want and need to cooperate but are no longer able to control certain interests or concerns on their own and still want to remain sovereign, then only a federal state can guarantee this. An intergovernmental operating system cannot do that. Making Europe a federation, building a federal house in which those policy issues are in good hands, that is the task we face.
This task can only be carried out successfully if the approach to the pursuit of a federal Europe changes in accordance with the adage: ‘If you continue to do today what you did yesterday, you will get the same results tomorrow as you received today. If you don’t like those results, you have to change today. Then you will get different results tomorrow. Change starts with yourself. If you don’t, why would your neighbor want to change?’
I hope that this brief note will provide some clarity about standards of federalism. Supporting information can be found in ‘Connectivity, Security and Prosperity’, trailer: https://www.faef.eu/trailer/. It also contains a draft of a ten-article federal constitution for Europe and a scenario for a Citizens’ Convention in accordance with the set-up of the Philadelphia Convention in 1787, the founding fathers of the first federal constitution.
Leo Klinkers, 22 June 2019
According to media reports, the European summit of 20 June 2019 on appointing candidates to succeed Donald Tusk and Jean Claude Juncker ended in a deadlock. Nothing could be further from the truth. At least from the perspective of the three protagonists Angela Merkel, Emmanuel Macron and Mark Rutte. They play the power game exactly according to the classic rules.
Rule 1: first eliminate the candidates who are not (or are not allowed to be) eligible. That worked out well on 20 June. The three ‘Spitzen’ candidates, earmarked by the European Parliament, have been rejected.
Rule 2: then discuss in a small group the way in which the real candidates – who have been known already – can be put forward. Merkel, Macron and Rutte will go to the G20 in Japan on 28 and 29 June and will hold these discussions there, far beyond the Brussels limelight. And also to consult some of the G20 key players about the appointment of Rutte as President of the European Council.
Rule 3: launch Mark Rutte at the Brussels summit on 30 June as a candidate to succeed Donald Tusk. The reason for the appointment of Rutte is the interest of Merkel, Macron and Rutte in exchanging the principle of unanimity of decision-making in the European Council for majority voting in order to make it easier to decide on the imposition of sanctions on a country like Iran, for example. See my article about Macron and Rutte.
Rule 4: At the same time, to succeed Juncker, they are nominating a candidate from a small country, such as Greece. As a reward for the efforts to put the financial situation in that country back in order. By appointing the Dutch Rutte as President of the European Council, the Dutch Frans Timmermans will not be able to succeed Juncker. The real reason is that the very ambitious Timmermans as President of the European Commission would pose a permanent threat to any President of the European Council.
Leo Klinkers, 25 May 2019
Federal Alliance of European Federalists (FAEF)
The European Union has some Member States that are unwilling – or unable – to meet their budgetary commitments. That is why there are financial transfers from rich to poor Member States. Opponents of a federal Europe base their view on the proposition that a federal form of government would strengthen those financial transfers. Well, exactly the opposite is true. It is precisely with the creation of a federal Europe that the current conflictual situation of north-south financial transfers can come to an end.
To understand this, we need to go back to 1787, the creation of the United States of America. After the Declaration of Independence of 1776, the thirteen former colonies concluded a confederation on the basis of a Treaty, and each built its own state. That proved unsuccessful. They had no money, no good governance, no strong external relations and no common defence against external threats. After eleven years, it turned out that the confederal Treaty was unable to prevent or resolve the growing mutual tensions.
In 1787, a group of fifty-five persons in the Philadelphia Convention began executing a legal mandate from the confederal Congress to correct the errors in that Treaty. After two weeks they came to the conclusion that this was not possible because the Treaty itself was the cause of their internal conflicts and their weak geopolitical position. As is the case today in the EU with the Treaty of Lisbon.
The Convention decided on its own authority to throw the Treaty into the dustbin and made the world’s first federal Constitution. Instead of falling apart, they eventually became fifty sovereign states, united by a federal Constitution, with an unmistakably strong geopolitical position.
In order to gain the support of the Citizens of the thirteen conflicting states for accession to the federal union, the Philadelphia Convention first submitted the federal Constitution to the Citizens themselves for ratification. By allowing the Citizens themselves to ratify the Constitution, they came as close as possible to the concept of ‘popular sovereignty’ of Rousseau. Within two years, the Citizens of the thirteen states had ratified the federal Constitution.
Money played an important role in this. Article VI of the submitted Constitution stipulated that the states that would join the federation would be released from their debts. From that moment on, these would be the debts of the federation: a one-off settlement of the debts. But after joining the federation, they would henceforth be responsible for their own finances. It was also a signal to the creditors that the debts would be paid off.
Aside: Herbert Tombeur and I have included this one-off debt settlement in our draft of a federal constitution for Europe. I refer you to our European Federalist Papers and to my book https://www.faef.eu/trailer/.
This, of course, raises the question: where will the federation get the money to take over the debts of the participating states? In America, this was achieved through the work of Alexander Hamilton, one of the three authors of the American Federalist Papers, and soon after the Constitution’s ratification becoming the federation’s finance minister. Hamilton was able to see the huge mountain of debt not as a problem but as an advantage. With, among other things, handy tax measures including taxes on luxury goods such as alcohol, the sale of land and import taxes, despite the initial resistance, he received enough money to clear his debts. He also managed to create a national bank to stabilize the national credit position and to play an active role in stimulating the economy. Today’s federal America owns about 24% of the combined national income of all Member States. The EU only 1%. This gives an idea of the financial strength of the federal part of America.
Aside: in section 1.5 of the 2012 Annual Report, the National Bank of the Netherlands clearly explained why and how the federal system in America was able to get the banking and economic crisis under control soon after 2008. The EU’s intergovernmental tampering with its ineffective financial system means a) that we are still far from a solution, b) the financial transfers from north to south are creating increasing conflicts and c) the EU is not able to withstand a possible new global financial crisis.
A one-off settlement of Member States’ debts – in line with the US example – makes it attractive to join a European federation. It corrects the mistake made by the Maastricht Treaty in 1992 of creating the euro without a federal foundation, and it also puts an end to the quarrel between rich EU Member States who are increasingly reluctant to put money into the financial sinkholes of poor Member States who do not wish (or are not able) to comply with the budgetary obligations under the Lisbon Treaty and further agreements. (Incidentally, it is not only the poor countries that are failing to meet their budgetary obligations.) With such a one-off settlement, a federal Europe is not a transfer union.
It can be argued that this settlement will give poor countries a bonus for their bad budgetary behavior. But that is the price that Europe is paying for its failure to introduce this measure as early as the Treaty of Maastricht. If they had done that back then, we wouldn’t be in this financial mess by now.
The necessary federal budget can come from three sources: 1) from import levies by adapting the existing system to a federal system, 2) from federal taxes with simultaneous reduction of national tax rates and 3) from the introduction of the Spahn tax at federal level. The Spahn tax is an improved, but not yet introduced, version of the rejected Tobin tax, a form of taxation on money transactions in order to control the volatility of exchange rates.
As an aside, in 2004 the ECB rejected a proposal from Belgium to introduce the Spahn tax in Belgium on the grounds that it would be contrary to the Lisbon Treaty. In my proposal – to introduce the Spahn tax as one of the sources of a federal budget – there is no longer any question of a Treaty of Lisbon and this form of taxation could help to put an end to the uneven distribution of the financial burden between the Member States.
I invite readers to put forward ideas for improving these resources for a federal budget of the United States of Europe that is to be created. Ideas on the best institutional organization of the federal financial system are also welcome.
In this respect, we should be guided by the words of Romano Prodi, President of the European Commission from 1999 to 2004 and Prime Minister of Italy from 2006 to 2008: “Great reforms will make a great Europe”.
Leo Klinkers, 6 June 2019
Federal Alliance of European Federalists (FAEF)
The recent election of the new European Parliament has been described in the media as a cry from ‘the Europe of the citizens’. This applies both to the citizens who care about Europe and to those who reject it. But both parties want to develop their own version of ‘the Europe of the citizens’ in a different way. The opponents are seeking the path of a radical dismantling of the European Union, back to the nation-state anarchy of previous centuries with their inevitable wars. The supporters advocate a radical renewal of European cooperation with improved sovereignty, security and solidarity.
This article offers Europe’s supporters a perspective in the form of a Preamble to a federal constitution for a European federation. It gives their version of ‘the Europe of the citizens’ a soul and a heart.
We, the citizens of the states [enumeration of participating member states],
II. Considering furthermore:
III. Finally, without prejudice to our right to adjust the political composition of the federal body in elections, we have the inalienable right to remove the authorities from the federation if, in our view, they violate the provisions under I and II,
Establish the following articles for the constitution of the United States of Europe,
Article 1 ….
Article 2 ….
And so on.
The Explanatory Memorandum of the Preamble
The opening words ‘We, the citizens of the states …..’ show that this constitution is being ratified by the citizens themselves. It therefore belongs by, for and of the citizens of the United States of Europe, in accordance with the adage ‘All sovereignty rests with the people’.
The United States of Europe consists of the citizens, the member states and the federal body.
It is a constitution and not a treaty. If countries or regions want to live together in peace and have to cooperate through historically defined borders, but nevertheless want to retain their autonomy and sovereignty, a federation is the only form of state that can guarantee this. This is not possible with a treaty. A treaty is an instrument for administrators to cooperate in policy areas without being fully-fledged democratically accountable for their decisions.
The fact that this constitution is first ratified by the citizens and only then by the parliaments of the member states shows that, in accordance with the basic aspects of federalism, formulated by Johannes Althusius around 1600, it is based from the bottom up and not imposed from the top down.
This federal constitution guarantees the common interests of the citizens of the United States of Europe and leaves to the citizens of the member states and to the member states themselves the powers to serve their own interests.
That is why this federal constitution consists of a limited number of rules of a general binding nature. It has no exceptions – driven by national interests – to these generally binding rules.
Explanatory note to Consideration Ia
The obvious ‘quest for happiness in freedom’ of the citizens and the mission and task of governments to support the citizens in this is a cornerstone of the Declaration of Independence (1776) and of the subsequent American Constitution (1787-1789), the first federal constitution in the world. This was the model for the federations that were set up afterwards and that currently house 40% of the world’s population. The pursuit of happiness is therefore also a cornerstone of the federal constitution of the United States of Europe. The quest for happiness includes values such as peace, security and social security.
Explanatory note to Consideration Ib
In the first place, this consideration gives the federation the task to work restlessly to preserve the diversity of all forms of life on Earth. Unsuccessful preservation of the diversity of all forms of life threatens the life of mankind on Earth. This task requires maximum cooperation, expertise and reliability from the federation’s authorities.
Secondly, the federation offers maximum respect for diversity in social life. Where it disappears, monocracies develop, which destroy those parts of society by inbreeding. Diversity of sciences, cultures, ethnicities and beliefs creates new sciences, cultures, ethnicities and beliefs. This constitution therefore rejects any action aimed at protecting the so-called ‘own people first’ and will use all legal means to combat such action.
Thirdly, as a consequence of the foregoing, this Preamble explicitly states that there is no room for a slogan such as ‘Europe first’. The federation of the United States of Europe shares its place on Earth with all other peoples and does not shut itself up behind the walls of a ‘fortress Europe’. Closing the external borders for the purpose of protecting one’s own people is not listed as a crime against humanity, but it is punishable by a serious penalty: the eventual disappearance – by demographic decay – of what one wishes to preserve. In other words: there will be open external borders, no closed borders. That creates obligations:
This constitution is therefore a task and an opportunity for fundamental political renewal now that the post-war democracies have reached the end of a 70-year life cycle and have led to the exclusion of citizens in favour of treaty-based government, which by its very nature has become increasingly oligarchic and protectionist.
Explanatory note to Consideration Ic
The end of the political life cycle of the post-war democracies, mentioned above, places those countries that consider democracy to be of great importance on a tour de force, similar to the revolution of the Enlightenment. Democracy and the representation of the people must be reinvented on the basis of the principle of ‘All sovereignty rests with the people’.
The Treaty of Lisbon is giving way to a constitution based on the representation of citizens. This implies, among other things, the abolition of the European Council of Heads of Government and State, the creation of a European Parliament on the basis of proportional representation within one electoral district – the territory of the federation – and a government under the leadership of a President, elected by the citizens. So, equipped with a democratic mandate.
This can only be achieved with wisdom, knowledge, humanity, justice and integrity. With just two certainties: if it succeeds, it will be a crucial revolution for the preservation of Europe. If it fails, by the end of this century, after the last tribal war in Europe initiated by nation-state anarchy, someone will turn off the lights in Europe.
Democracies cannot prevent elections from leading to groups within the democratic institutions that wish to use their power against democracy. This constitution enables the institutions of democracy, as far as possible, to deal with the abuse of democratic procedures by building in defence mechanisms. The task is therefore a fundamental reorientation of the concept of ‘democracy’ in 21st century Europe. With a task for political parties to reflect on their own responsibility to design instruments to defend democracy against parties that (would like to) abuse the procedures of democracy in order to destroy that democracy. Probably more than any other organisation within a democratic system, political parties will have to consider wisdom, knowledge, humanity, justice and integrity in order to guarantee the viability of a federally united Europe.
Explanatory note to Consideration IIa
The ‘building blocks’ of federalism as a form of state stem from the ‘Political Method’ of Johannes Althusius (1603). The ‘cement’ to connect these ‘building blocks’ indissolubly was provided in the writings of European political philosophers such as Aristotle, Montesquieu, Rousseau and Locke with their views on popular sovereignty and the doctrine of the trias politica. The American federal constitution is based on these writings, while Europe has condemned itself to wars for centuries.
It was not only philosophers who provided the ‘cement’ for the building blocks of federalism. Also political and social leaders – in the Interbellum period for example the British Philip Kerr, better known as Lord Lothian – and after the Second World War the Italian Altiero Spinelli who, with his Ventotene Manifesto (1942), laid the foundation for the post-war pursuit of federalism. A goal that between 1945 and 1950 was led by a large number of conferences and plans led by statesmen, scientists, culture bearers and civil movements, but which in 1950 radically ceased to exist with the Schuman Declaration. Although this declaration demanded the creation of a federal Europe in its entirety, it put its implementation in the hands of government leaders. In this way – unintentionally, but through guilty ignorance of the way in which a federation should be created – the Treaty-based intergovernmentalism that has brought the European Union to the end of its current political life cycle was created.
Explanatory note to Consideration IIb
The thirteen former colonies in America at the end of the 18th century solved the dilemma of ‘never again a ruler versus the need for representation of the people’. They applied the system of shared sovereignty devised by Althusius by inventing the vertical separation of powers between the sovereign member states and a federal body. Without transferring the integral member state’s sovereignty, they asked a federal body to take care of a limitative number of common interests, to execute with the powers of the member states.
Contrary to the claim that in a federation member states transfer all or part of their sovereignty in the sense of ‘giving it away and thus losing it’, this is not the case. Parents who hand over their child to a teacher do not lose anything of their parenting but give the teacher the power to teach the child knowledge that the parents themselves cannot realise. That is why another popular view is also wrong. Namely the view that a federation is a superstate that destroys the sovereignty of the member states.
The vertical separation of powers, leading to shared sovereignty, also solves another problem. Namely, the principle of subsidiarity. This principle in the Treaty of Lisbon states: ‘The institutions of the European Union should leave to the member states what the member states can do better themselves’. Since Article 352 of the Treaty allows the European Council to take any decision that the Council considers serving the objectives of the Union, the Council can ignore this principle of subsidiarity. In a federal state, the principle of subsidiarity coincides with the vertical separation of powers and therefore does not need to be mentioned as such in the articles of the Constitution.
A final aspect of this Consideration IIb implies that, due to the exhaustive range of competences of the federal body, all other competences remain with the citizens and the member states. This means, among other things, that the member states retain their own constitution, parliament, government and judiciary, including their own policy areas insofar as these have not been laid down in the exhaustive list of interests that the federal body must represent on behalf of the member states by means of the vertical division of powers. Monarchies are also preserved.
Explanatory note to Consideration IIc
The horizontal separation of the three powers – the legislative, the executive and the judiciary – is not a specific feature of a federal form of state alone but is the adage of any state that wants to prevent domination by one power. Within a federation, however, there are two particularities.
Firstly, from the first federal state – that of the United States of America – the trias politica must be established both at the level of the federal body and at that of the individual member states. Secondly, in addition to the invention of the vertical separation of powers mentioned above, the federal constitution of the United States of America has introduced a second innovation: the checks and balances. To say that a self-respecting state considers the trias politica to be a very important aspect is only a declaration of its value. But values can only be monitored and preserved through norms. That is why the American Constitution – and also this European Constitution – contains articles that prevent the inevitable action of the three powers in the field of another power from slipping into the supremacy of one power over the other. That is the purpose of the checks and balances. They are the indispensable countervailing powers to limit the ever-present striving of the three powers to expand their complex of powers, at the expense of the powers of the others.
Explanatory note to Consideration III
The citizens derive from the English Magna Carta of 1215, the Dutch Plakkaat of Abandonment of 1581, the American Declaration of Independence of 1776 and the French Revolution of 1789 the inalienable right to expel governments from the federal body if they violate the provisions under I and/or II.
In accordance with the adage ‘All sovereignty rests with the people’, the citizens of the United States of Europe are the alpha and omega of the federation. Alpha in the sense of: they ratify the federal constitution and thus establish a system of representation of the people, of executive administration on the basis of political decision-making by the representative body and of justice for the resolution of disputes. Omega in the sense of the inalienable right to dismiss those who abuse the federal system, for example by (attempted) establishment of an autocratic system.
This Preamble contains the complex of values of the constitution of the United States of Europe. It shows what the United States of Europe stands for.
Then follow the constitution’s articles.
An interview by Olivia Muñoz-Rojas with Mauro Casarotto
Within the context of the upcoming European elections and the debate about the future of the EU, I interview Mauro Casarotto, secreatry of the Promoting Committee of the Federal Alliance of European Federalists (FAEF). Born in 1981 in Italy, he graduated in political sciences and international relations at Padova University, and has a long experience in non-profit organizations. In 2014 he published Krisis. Che cosa nasconde la più grande crisi del mondo occidentale (Armando Editore), where he explores some of the causes and possible solutions to the crisis of the Western world, which, he claims, is first and foremost a social and cultural one. A convinced European, he decided to involve himself in the adventure of ‘federating the federalists’ under a common umbrella in the face of mounting nationalism and populism in Europe. As part of FAEF, Casarotto is determined to defend the legacy of years of painful European construction as well as contribute to turning Europe into a veritable federation, working from the bottom and up
I ask him about federalism, why it is often presented as a more democratic political structure, but also why it seems so hard to trigger a proper debate on federalism in Europe and what can be done to catch more attention from the media and public opinion.
Could you explain in a few words the difference between the current structure of the EU and the kind of federal Europe that FAEF promotes?
In a federation you have a federal body and several sovereign member states. The member states share their sovereignty with the federal body, asking that body to take care of a limited set of specific powers (for instance defence and foreign policy, intelligence, general civil rights legislation, environmental protection, currency, etc.). All the other areas remain in the hands of the members states. The federation takes care only of the common interests of all member states; interests and problems that can no longer be solved by the individual states. The actual EU is not a federation, it is instead an ‘intergovernmental system’. It is not based on a constitution but on treaties or agreements on specific policy areas. If the governments reach an agreement, they can take any decision within the Council, without any limitations, because, unlike a federal system, you don’t have a constitution clearly defining the limits of the powers of federal governance.
Is a federal structure more democratic? Why?
Because, even if we have a European Parliament whose members are elected by the European citizens, all the important decisions are taken by the heads of government in the Council, in closed-door meetings. Sometimes they take decisions that erode individual countries’ sovereignty, including fields where this is not necessary and then you have lack of democracy. And if they don’t agree on anything, they can’t take decisions and you have the current paralysis. This has led to Brexit and disaffection towards the EU.
Why is it difficult for people to understand what federalism is?
Because nobody explains it to them! And it is a shame, a lack of constitutional, political and sociological knowledge if you consider that federalism is already part of the philosophical heritage of Europe and that, for instance, it was developed in the United States of America more than two centuries ago based on the thought of European philosophers like Kant, Montesquieu, Locke, Rousseau, Althusius and others.
Who wants a federal Europe today?
If you think that there are issues for which the power and capacity for action of our small, individual European states is not sufficient anymore, you are probably in favour of a strong, fair cooperation among them. This must indeed include an administrative and governing body that takes care of these common interests with a real democratic checks-and-balances system in place. Do you agree with this? Probably, yes. At the same time, it is likely you believe that each country should maintain its autonomy, preserve its peculiarities, culture, institutions, language, which is all quite reasonable. Then you are a federalist, and you are in favour of the federalization of Europe.
Would a federal structure in Europe help addressing pressing public policy areas such as climate change and migration?
I reverse the question. Is it possible to solve the migration and climate change crises if states deal with them by their own, without any coordination or with different, maybe even conflicting approaches? Nobody can be so foolish to think so. Only a federal Europe will developing enough critical mass and coordination to develop fair agreements on such fundamental questions together with the other main global actors. If a player is small and divided it will have no power in the future global structure.
Many people think that a federal Europe means countries lose their specificities and blend into a homogenous political entity. Is this the case?
No, a federation is not a super-state which abolishes the peculiarities of all the individual states because, if the federal constitution is built the right way, there is a barrier between the limited set of powers that the member states share with the federal body and the powers that remain with the member states. The federal government cannot trespass this barrier because the constitution does not allow it. While, unfortunately, this is possible under article 352 of the intergovernmental Treaty of Lisbon currently in place: the governments can come up with a new treaty or agreement any time and regulate any aspect of the life of each of our countries. We don’t have this barrier, and the weak control of the European Parliament is insufficient to prevent abuses.
If a federal Europe would benefit ordinary Europeans while allowing them to preserve their national identities, why is it so challenging to make both the idea and the discussion attractive to a majority of people?
Again, because of the extensive lack of knowledge, considering that even a lot of politicians do not have a clear idea of what federalism really is and they confuse it with more ‘intergovernmentalism’. 99 per cent of politicians do not know enough about federalism, and some of the few who know are discouraged. They consider it a pornographic word given that the political discussion around them is corrupted by lack of knowledge and the need to drug electoral campaigns with the lure of quick, simplistic and immediate promises in order to be elected. This is populism, after all.
What is the role of FAEF in this sense?
To explain federalism and the potential of its accurate application to the European citizens. We also need to create a federation that includes all the organisations that are in favour of a more united and stronger Europe, so that we can put together our forces, and show in practice what federalism is in theory. After all, if the federalists are not able to federate themselves, how can they preach to countries to federalize?
In particular, how do you think that younger generations can be reached and involved in the debate about federalism?
By honestly speaking to them, answering their questions, involving them through both traditional methods such as schools, lectures, books, and new ones such as social media. Federalism is not rocket science, just the right application of a few logic key concepts, which are already part of European cultural heritage.
One of your members, Catherine Guibourg, suggests that literature and drama are among the most powerful means to explore Europe, its challenges and possibilities. Do you have any ideas or projects in this regard?
Yes, Catherine has written a theatrical play Nous, le peuple européen: six personnages en quête d’Europe (We the European people: six characters in search of Europe) that is currently performing very well in France. This is a different approach to engage people, discuss with them about Europe and federalism as a possible solution. We need a frank discussion, involving not only the establishment but the whole of civil society.
Many people fear the result of the upcoming European elections – specifically, the consolidation of a powerful alliance of the extreme right in the European Parliament. How does FAEF approach the elections and what do you expect from them?
We are not a party. We don’t run for elections or make electoral campaigns. The nature of FAEF is to involve all the movements that are in favour of a more united Europe. They can come from the left, the centre or the right, be progressive, conservative, liberal, provided they are democratic and accountable, and agree on the goal of creating a European Federation. As sovereign forces, they are free to participate in elections or support electoral campaigns. Meanwhile, we play a different role.
Europe, the first world economy, is actually like a Ferrari with a 70-year old engine inside it which simply cannot work in a modern luxury car. This old engine is the intergovernmental system. We need to change it before it is too late.
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.
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:
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.
On Thursday 9 May 2019, the European Council will meet in the Romanian city of Sibiu to discuss the four key tasks which, according to its President Donald Tusk, should constitute the EU’s strategic agenda for the next five years. These are: protection of citizens, a strong economy, a sustainable and social society and the defence of European values and interests.
I will leave aside whether this broad definition can be called ‘core tasks’. I also refrain from a substantive discussion of these core tasks. The essence of the Sibiu agenda is: ‘let us try to promote more integration with fewer goals.’
Well, as soon as ‘integration’ is on the table, we are dealing with the increasingly criticized pursuit of the Treaty of Lisbon of an ‘ever closer union’. The Dutch Parliament recently adopted a motion to remove this phrase from the Treaty. The reason for this is that they want to put a stop to the further integration of the EU countries.
Few concepts in the legal EU-framework are as poorly understood as the concept of ‘integration’. Due to the nature of the Treaty of Lisbon, which gives the European Council the power to take any decision that, according to the Council, serves the EU’s objectives – and thus overrides the principle of subsidiarity – the Council’s decision making works both de factoand de iureas ‘assimilation’ of the EU countries. By its very legal nature the Treaty imposes top-down measures that force the member states to become in line as much as possible.
Strictly speaking, the call to integrate further forces countries to assimilate in the sense of adapting to one another as much as possible and thus taking on each other’s characteristics. This is one of the most important causes of conflict within the EU, as well of the Brexit drama. Countries, parliaments and people do not want to assimilate. Not only do they want to preserve their own sovereignty, but also their cultural identity. This need for further integration is one of the many systemic errors within the EU’s current intergovernmental operating system, driven by the Treaty of Lisbon.
Well, such a systemic error is absent within a federal operating system, based on a federal Constitution. In a federation, the Member States retain their sovereignty and cultural identity. They share this sovereignty with a federal body that takes care of a limitative set of interests that the Member States can no longer defend on their own. It is only at the level of that federal body that integration takes place. Integration in the sense of taking care of a few common European interests rather than operating on an array of conflicting national interests. In a European federation there is no integration in the sense of assimilation at the Member State level. They retain everything they already have: parliament, government, judiciary and their own policy areas. Countries with Presidents or Kings retain this in a European federation.
The Lisbon Treaty destroys the diversity of the member states. A European federation preserves it. So, the correct answer to the question in the title of this article (‘More European integration?’) should be: ‘Yes, but only if properly understood and applied.’ And that is within a European federation, based on a federal constitution that lists the core tasks, being common European interests, exhaustively.
Those who claim that a European federation would be guilty of further integrating in the sense of assimilation and would destroy the sovereignty and cultural identity of the Member States do not know what they are talking about. People who support Tusk’s abovementioned strategic agenda should tell him that pursuing these core tasks will only be successful in the constitutional and institutional framework of the federal Unites States of Europe. A federation is the only form of state that provides his wish of more integration, which takes place at federal level with the full agreement of the participating Member States. That way, they not only don’t lose anything, but just get extras.
For a better understanding of this matter I refer to the pages 33-39 of my book ‘Sovereignty, Security and Solidarity’: https://www.faef.eu/trailer/.
Comments are appreciated. As well as forwarding this article to relations you would like to inform about this approach to the concept of ‘integration’.