supranationality

Seeds of Supranationality in Times of Crisis

Posted on June 3, 2022 by Susanna Cafaro

A Few weeks ago, in Brindisi, Italy, the Università del Salento – actually my wonderful little team and myself – hosted the fourth edition of the Supranational Democracy Dialogue. It is a two-days recurring event, one of its kind, aimed at bringing together scholars from any background, NGO leaders and political activists, businessmen and innovative thinkers to discuss together the big challenges facing humanity. Since 2019, this event is supported by the Jean Monnet Chair “Legal Theory of European Integration: a Supranational Democracy Model?”.

The formula is very simple: we publish yearly a call for papers, some months in advance, to invite all those willing to contribute, listing a few topics which are hot or which can be considered a permanent challenge humanity is facing. What we ask to our potential panelists is to be positive, to offer solutions instead of analyses of current problems.

It is easy to see how this kind of conversation cannot but be fruitful for everybody: as creativity is a requirement and speakers come from different paths in life, everybody has something to offer and much to learn from others.

Another interesting quality of the event is that it is quite serendipitous. The special random combination of people and content is different every time, so both their contributions and the interactions among them are always a discovery. As a result, we do not know in advance what will be the real focus of the conversation when people meet.

This year it did not start under the better auspices.The event was in person after two on-line editions and still resenting the effect of the pandemic which took us in physical isolation for nearly two weeks. Yet, the enthusiasm at having again real people meeting under the same roof was hindered by the shadow cast by the war in Ukraine.

Talking of global democracy while we face a reality of war, after several years of regression of democracy in many countries – according to all the renowned democracy indexes- after a pandemic which for safety reasons limited significantly personal freedom, after a global financial crisis, after wave after wave of migrants and refugees…. well, it takes unshakable optimism and strong determination, or – and this is something many panelists since 2018 shared with us – the certainty that no other choice is left.

As counter-intuitive as it may appear, we need vision more than ever. Not by chance, the first topic listed on this years’ call for papers was “The Seeds of Supranationality. From Jean Monnet to Global Governance”. We cannot forget that the seeds of European integration as well those of global multilateralism (UN, IMF, World Bank, WTO- back than ITO- and so many international organizations) were planted during the Second World War. Those who had witnessed the war, who had even fought in it, were the leaders and front-runners in building what they hoped would be lasting peace.

Some of them were political leaders but others were just citizens like you and me, sharing innovative ideas. The Ventotene Manifesto – written by Altiero Spinelli, Ernesto Rossi and Eugenio Colorni in 1941 – while in confinement accused of anti-fascism – is a brilliant example. The road open by these few pages smuggled into Switzerland is history. Not less known is the recognized influence of Jean Monnet, another private citizen, in shaping with his ideas the European Coal and Steal Community, as testified by the 9 May 1950 declaration, which, after, expanded and flourished into the European integration process. It was, nonetheless, essential to this aim the fervent support of the French minister Schumann and, immediately after, that of the political leaders of the six founding member countries.

Addressing this topic during the awful war in Ukraine, we could sense some similarities in trying to imagine a better world when the current order is showing devastating flaws. Yet we could also take stock of what worked and what didn’t in the institutional formulas imagined more than 70 years ago.

Clearly the UN Security Council is to be placed among the tools which did not work. In more general terms, the UN allowed the countries of the world to collaborate on many significant issues. Yet collaboration is maybe not enough and when it comes to peace and war, it happens that collaboration is totally suspended. It is even too easy to consider hopeless an international body where the US, Russia or China enjoy a veto power, and for sure it cannot be considered a bulwark against wars. Needless to say, any war started or supported by a permanent member of the UN Security Council will never be addressed, even less sanctioned.

Yet the discourse is larger than that. The reason for addressing supranationality and not international multilateralism as a topic for our conference is that traditional international organizations like the UN may prove effective and even successful in bringing many states around a table or even having them voting on something, but they do not address the very roots of pacific coexistence. Being international, which means intergovernmental, they bring around that table states’ representatives focused on their national interest, and it is starting from there that they try to compromise. An addition of national interests is not the same as a genuine common interest.

The EU proved a bit more effective in dealing with the emergency as it decided immediate sanctions, supported in several ways Ukraine and allowed protection to refugees. Even there, though, when it comes to foreign and security policy the model is international and the veto power of all the member states is there. It is much easier to adopt a decision on asylum seekers, as we have seen, than to move in the direction of a single voice in negotiating a truce and a humanitarian corridor. Yet, an organization which is mostly supranational, i.e. with its own legitimacy and accountability – an elected Parliament, a Court of Justice an executive body, the Commission, independent from member states but accountable to the Parliament- exerts a force of attraction far more effective than the international ones and allows States to coalesce around a core of common values by offering a predefined path.

Our conversation in Brindisi, in its first session, focused on the seeds of supranationality and explored it from an original perspective, that of individuals – an essential ingredient in any democratic formula, yet totally absent in the intergovernmental and diplomatic formulas. So, it was a talk about what it takes to make the Union a real Republic, about the role of individuals in pushing for its evolution since its very beginning, not only in the political arena but even in courts, through litigation. And, also, enlarging the perspective to the top and to the bottom, about how one could imagine a multilevel governance from the local to the global dimension. In this big picture, the role of individuals appears relevant not only in their personal capacity, but also as members of social bodies and as economic actors.

Particularly fascinating has been, in this framework, the contribution by dr. Wolfgang Pape on omnilateralism, a term used by him to define a model, beyond multilateralism, both multilevel and multistakeholder.

Two following topics have been at the core of further discussions, both addressing the increasing interconnection in the human family from different perspectives: The first one has been the environmental perspective, the second the technological one. Both address a core necessity of our times, the need to take responsibility for global commons in terms of management/governance as well as in terms of awareness and personal responsibility. The biosphere has no borders and ecosystems do have borders different from the national ones, their fragile balance when altered may result in a permanent damage endangering all the species, humans included.

Internet too has no borders and is similarly a global public good which needs to be managed with
care. Rights and threats come from the same infrastructure, civic participation may depend on it and
misinformation may spread on it significantly impacting democracies and legal orders.

The two conversations had different focuses and if the first one was centered on sustainability, future generations, and rights of nature, the second turned on a spotlight on the big divide among more and less advanced economies and more and less democratic and open societies. Yet both benefited of a true open interdisciplinary dialogue, made up not only of presentations, but also of questions and answers, comments and doubts. It is certainly not possible to solve the problems of the world in two days, but it is at least possible to open the mind to the diversity of perspectives and consider the point of view of the other.

The challenge of inclusion and participation has never been so acutely perceived as in the era of
interdependence we live in, in which everyone is connected and interconnected, not only by
technology, but also by cause-and-effect phenomena as the environmental and atmospheric ones, or
as recently the pandemic. The last and all-encompassing topic has been the one of civic engagement and, in the current situation, it seemed relevant to assess that it is a tool for peace in the broadest sense as it is a tool for coexistence and collaboration and as a way to practice awareness and compassion.

It has been interesting to discuss the role of citizens in the perspective of the participatory and
deliberative democracy, as recently in the process called Conference on the future of Europe, but
also in the challenge of inclusion, which could be effectively pursued through very practical projects and, in the end. also in daily life of citizens who chose to engage in worthy causes.

It may be interesting to notice that supranational and transnational models, those involving directly citizens, support a smooth process leading to pacification i.e. reconciliation, which is more than peace, or, maybe, it is the real peace. Only when people are involved, work together, participate to common decisions, former enemies may overcome hatred and distrust and – as pointed out in the Schumann Declaration “create a de facto solidarity”. Young Europeans from Germany, France, Italy and all the other EU countries do not hate each other and make easy friendships through their free circulation and the exchange programs among their universities.

Unfortunately, hatred and distrust are not only heritage of wars, but also of other past wounds. In several former member countries of the Soviet Union and of the Warsaw pact, the feelings towards Russia are not exactly friendly, they span from detestation to suspicion to fear. Even more now after the brutal aggression to Ukraine. Nevertheless, it is good to remember that the choices of the Russian government do not reflect those of a people who has inside it divergent positions – brutally repressed – and non-irrelevant manipulations. Even if, apparently, it was non needed, a pacification among former controlling and controlled countries would have been most useful for pacific coexistence, even if we cannot say it would have prevented war. It will be the next challenge on the European continent once the most urgent one, that of peace as the end of war, will be accomplished.

The full recording of the conference is online here, as are online the previous editions. Hope to meet you at the next one!

Susanna

SUPRANATIONALITY IN PRACTICE: THE EUROPEAN CITIZENSHIP

Posted on November 21, 2016 by Susanna Cafaro

The European Union’s founding Treaty (TEU) recalls and reaffirms the role of citizens in articles 9, 10 and 11 – provisions dedicated to its “democratic principles” – with the intent to establish a direct link between EU citizenship and democracy in the Union.

european-people This need to look for (and find) legitimacy in citizenship – the dual legitimacy of the Union and of its member states – deserves to be analyzed as it is a peculiar expression of this supranational system. Although we find its most effective expression in the last edition of the EU Treaty, this quest for legitimacy is not new in the European integration process.

This is even more interesting as we consider that the lack of citizens’ ownership is often considered a cardinal sin in the process of European integration, whose elitist nature is often blamed.

We may find, instead, that citizens – as beneficiaries of rights as well as actors in democratic processes have always been important.

We can read in the article 2 of the Treaty establishing the European Union that:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

Even if the significance of the word “democracy” remains unspecified, we could give a first and provisional definition referring to the values listed in art.2 itself, to the constitutional principles common to the member states and to the content of the European Charter of fundamental rights.

In terms of political participation, the European notion of democracy gained significance through the direct election of the European Parliament since 1979. Then, with the creation of a European citizenship by the Maastricht Treaty in 1992 and, eventually, thanks to the inclusion in the latest version of the Treaty of a title entitled to the Union’s democratic principles: the art. 9-11.

“Article 9

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

Article 10

The functioning of the Union shall be founded on representative democracy.

Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.

Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.

Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.

Article 11

The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.
Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties. (…)”

This trail was actually prepared by the ECJ case law. The starting point was the Van Gend en Loos case (1963). In it the European Courts defines – for the first time – the Community as “a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals”. The Court quoted itself, using the same statement in other famous decisions such as Costa vs. ENEL (case 6/64), Simmenthal (case 106/77), Francovich (cases C-6/90 and C-9/90), opinions 1/91 (December 14^th 1991) and 1/2009 (March 8^th 2011).

After this first step came, one year later, the Costa vs ENEL case, where we read that “the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves”. In this case the Court clarifies two cardinal principles – the direct application and the prevalence of European law over national law – both are grounded on this direct relation between the European legal order and the citizens which are direct beneficiaries of its norms

This direct relationship between the citizens and the supranational organization is not immediately qualified as a supranational citizenship – which will appear only in 1992 – and it never became a “supranational nationality”.

Since 1992, in fact, the European citizenship is nothing but a set of additional rights, a status added to national citizenships, barely visible if not in the passport format. Keystone of this status is the principle of non-discrimination, walkway between many European peoples and a common citizenship.

Splitting the two concepts of citizenship and nationality – the first existing at two different levels (national and European) the second limited to the national level – is therefore a basic element of a clear political project.

The strictly legal content of the European citizenship is indisputable, comparable to that which characterized the notion of the Roman civitas.

The abstractness of a citizenship that is pure legal concept becomes a strong choice where it appears to be an alternative to the notion of nationality or people, terms which instead bring with them a rich substratum of history, culture, religion, language, identity and belonging.

And, in fact, the Union’s objective is not to eliminate the nationality or the peoples of the member states. Article 1 TEU refers to an “ever closer union among the peoples of Europe”, article 3 specifies that the Union’s aim is promoting “peace, its values and the well-being of its peoples“, the same provision recalls the richness of its cultural and linguistic diversity.

So, we have a clear separation between the two notions: a European politeia/citizenship and national demos/people, the first including a number of different national demoi living together in peace, under a roof of common values, principles and rules.

The same distinction is very clear in the preamble of the Charter of Fundamental Rights, where we read:

“Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.”

And

“The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States”. (Emphasis added)

Therefore, this European integration as a legal process – which coexists with strong national identities – is not necessarily a weakness of the system or the mark of an unfinished process, but it seems rather a choice.

Among the European countries there are strong elements of cultural commonality, especially when viewed in perspective, in the context of a globalized world. Europe’s common “spiritual and moral heritage” is not a rhetoric invention, but it was a clear choice to ground its legal order on a “citizenship without a people.”

This choice has some advantages: first, it does not conflict with the national identity recalled and guaranteed by the Treaty and it promotes an integration model based on the coexistence of diversities; second, it should respond better to the need to reassure the defenders of national sovereignty, reducing the risks of nationalist reactions or to the fear -even irrational- of losing national identities (even if, as Brexit is there to prove, it wasn’t enough). Finally, it prevents a possible European nationalism, a typical degenerative disease of nationality.

As we can see, it is a quite different model from the American melting pot.

This belonging to a polity, expressed in purely legal terms, is the real novelty of the European model, replicable in other geographical areas or global organizations – which could generate – one day – their one partial citizenships – and it opens the door to multiple and cumulative citizenships, not conflicting among each other, to communities partially overlapping.

Alongside this European polity – that performs the dual function of building an area of justice and rights and to legitimize the EU supranational institutions, there is another peculiarity of the European democracy: the absence of an explicit reference to collective self-government.

“Sovereignty belongs to the people” is a recurring formula in the states’ constitution and funding acts, so…how can possibly exist a democracy without a people? This requisite appears to be an essential and indispensable element of democracy – as also pointed out by the General Assembly of the United Nations (resolution no. 55/96 of 4 December 2000).

And here we see why this reference to the peoples of the Member States – alongside with national democracy – is also important: it becomes an implicit reference to national constitutions that recognize and codify these collective sovereignties.

The European polity thus integrates a second democratic level on top of the national one, the two being mutually invigorating. It’s no accident that democracy is an essential requirement for the accession to the Union (art.49TUE).

And yet, some people and some political figures still blame the Union for the persistence of a democratic deficit. We believe that this deficit is not in the EU institutional system but in some essential transmission belts required for a genuine democracy: European parties, a European political debate and – even more – a press reporting to citizens what happens in the European Parliament and the other bodies at work over the national level.

Another real gap is in the absence of awareness of many European citizens about their rights and their status in Europe, even if, once the mentioned tools in place, that would be maybe filled up.

So far, in vain the European Commission launched communication campaigns designed to fill these gaps. The system is formally democratic, but essentially perceived as distant from its citizens.

Its democratic formula – being so disconnected from a sense of identity and belonging – is especially difficult to communicate. Even more difficult if press and political elites don’t give it a try.