EU Confederation: exchange of views with Jakub Jermář

2015-10-26

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The context of the discussion

Jakub Jermář is a fellow federalist. A programmer by trade, he is, among others, an amateur researcher of federalism, and has translated into Czech the European Federalist Papers—you should read them.

Follow Jakub @jjermar and visit his website jermar.eu.

In recent times I have been in contact with him, as I find his position on European integration to be very close to my own. I generally think that “federalism”, if conceived as a broader movement, is suffering from fragmentation and that a number of federalist groups tend to be more pro-EU-integration than pro-federalist-transformation. My personal view is that further integration is not tantamount to the federalisation of the European Union due to the important modal and qualitative differences between the two.

On October 18, I wrote an article about the design of the European Union, where I tried to outline my main arguments on the EU’s architecture. Jakub sent me an email with his comments, which developed into the following exchange of views. For the sake of readability, this email conversation has been edited, where necessary, to resemble a dialogue, while it is divided in four sections covering the following topics: (1) the capacity of the EU to change its primary law, (2) the role of senators in a federal formation, (3) the vertical separation of powers, and (4) whether the EU is a quasi-confederation or a confederation proper.

The exchange of views

On changing the Union’s primary law

Jakub: You seem to say that if Europe/EU was a federal republic, its executive and legislative would be able to change its primary law (i.e. its constitution) autonomously. However, it is not that simple in federations. Because the primary law also deals with the power relations between the member states and the federation, and between the member states themselves, changing the constitution in a federation in general requires a form of agreement between the federal level and the state level. Otherwise it would be possible for the federal level to give itself more powers at the expense of the powers allocated to the states.

Prot: I should be clearer here. I don’t want to suggest that the federal government should be autonomous from the rest of the architecture and should change the constitution all the time, but that it should have the capacity to initiate this process. To initiate the process, it would need qualified majorities (3/4 or 4/5 or anyway something much more than 51%) in both legislative chambers and then agreement from the federal executive. Indeed it will have to involve the states, otherwise the federal level would be an independent state from its member states. Changing the constitution should not be a simple or easy thing to do, but it should be possible to start it from the federal level.

The function of senators

J. You also write about a directly elected Senate. In one of your older posts you say something like the Senate represents the interests of the people of the particular state so it is elected by them. I like this interpretation. But this has not always been the case in the USA, i.e. the first federation. Until the beginning of the 20th century, the senators had been appointed by the member states. The authors of the European Federalist Papers seem to prefer a setup like that, because, in their opinion, it prevents too strong federal government, or conversely, allows for a balance between the federal government and the states. They go even farther and in their draft constitution, they propose that the Senate members be appointed by and from the state legislatures.

P. Yes it is indeed the case that senators were appointed in office. I think this changed when one state decided to hold elections for their senators and others followed. As I first heard from @ruitavares, today we could do the same with the Permanent Representatives to the EU. Now they are appointed in office as ambassadors of their state. Theoretically, any government in the EU could come up with the idea of actually nominating candidates for an election to the Perm. Rep. head office. The reason I prefer the elected over the appointed is that the latter do not necessarily guarantee a stronger check on the federal level, while they are much less accountable to the citizens. Holding elections also means raising awareness and talking about the powers of that entity. Think of how many people really know the powers of the Council of the EU and distinguish it from the European Council (well, even the Council of Europe). I think part of the confusion has to do with everything being handled as high level diplomacy (and everything being a “council”).

J. In relation to my previous point, I see the qualitative difference between the European Council/Council of the EU and the US or Swiss Senate in the following:

• the senators are independent from their state’s government; they do not receive voting instructions from the government of their state and they do not come to the session with a mandate to conduct the horse trading in a certain way;
• their job is not to defend their state’s interests in the Senate, but rather to make decisions in the general interest of the whole federation;
• thanks to the vertical separation of powers, they decide about different matters / interests; therefore there is, by definition, no collision between federal and state interests;
• they are physically different people from the people who sit in their state government, so they are not sitting on two chairs at the same time; they don’t have to make choices between the federation and their state, and they do not have to be concerned about their re-election at home if they prefer the general interest (see also the previous point).

P. I like these qualitative points. They clarify things. Elected senators would indeed be separate from their state’s government. They would however be accountable to their state’s citizens. Are appointed members/ambassadors accountable to the citizens? Not really or not directly, as they are only reporting back to their government, while all of the horse trading becomes this high-level exercise in pseudo-foreign-policy, i.e. something citizens should not really know that much about.

The separation of powers is crucial and what prevents the federation from becoming a unitary state, but it does not cut the federation in half. This is still an organic whole. I believe there are cases where federal and state interests converge, such as on federal government spending. Think about the Tennessee Valley Authority: a US federal agency that was set up in the Tennessee Valley region to help modernise agricultural production. It is federal money which, in an immediate sense, benefits the states that receive the investment. In a broader sense, such investments help keep those states up to a certain level of development, which is good for the federation as a whole (more taxes, more investments in that area, better living standards for citizens, no local voices calling for independence from the union etc.). If a proposal came to the Senate which would call for the abolition of the TVA, the Senators of those states would have to vote against—it would materially harm the interests of their voters/their state. And here is also why I think the senators represent the interests of the state’s citizens. But represent them where? To the federal level, which is still their state (because they also are citizens of the union), so they cannot just have a narrow, parochial focus, but must also think about matters of the federation.

J. What exactly do the senators represent on the federal level? I think they represent the_ _federal part of the interests of their state’s citizens. The other part of their state’s citizens’ interests is taken care of by the state’s own domestic representatives in their home state.

The example with TVA still conforms to this view, because, whatever the reasons are, TVA falls under the federal interests, so it is okay that some senators may be concerned more than others.

P. Yes I like that and agree with it. The senators do represent the federal part. What I would add to that, is to think of it as a two-tier whole, where the senators focus on the upper tier but are still influenced by the lower one.

J. They are, but since the federation does not decide about the lower tier, it does not really matter. TVA or state’s participation in the federation still belong to the upper tier, even though they can touch some states more “personally”. This is quite similar to a unitary republic. You have only one tier of government, but it can decide to e.g. build a highway to one of the underdeveloped regions to give it some economic boost. The representatives from those regions are likely to be for such a project, while the representatives from the richest regions may be against, because their voters are the ones who will probably pay most of the bill. This is just to show that even common interests needn’t be uniform within one tier of government, even in cases when there is no other tier of government.

P. Let me just flesh out that point about touching them “personally” by sharing an insiders’ view from the time I worked at the European Parliament (this is nothing confidential). Members of the European Parliament are of course labouring for the interests of the Union as such—not their constituency. However, MEPs take into serious consideration what their state’s citizens think. Why? Because their re-election depends on them. For example, when there is any discussion on the Common Agricultural Policy, several French MEPs regardless of ideology tend to vote in favour of France’s farmers. My point is this: yes, the federal interest is always considered, and always remains “federal”, but elected members constantly check what their voters at home are thinking. The same would apply to senators. Still, what you suggest is perfectly right. Even within unitary states there are diverging interests.

Vertical separation of powers

J. The vertical separation of powers and the equality of states in sovereignty (no exceptions to common rules / opt-outs / privileges for certain states) in a federation helps to prevent the dangerous blending of general and particular interests.

P. The separation is constitutional. When it comes to federal policy, we see an interweaving of interests between federal and state levels. What the vertical separation does—and this is good—is to make sure that these interests are not served by the exact same people or group thereof. If they were the same people or group thereof, as is the case with appointed members (or the European Council, Council of the EU, Eurogroup etc.), the effective blend of interests between local and federal level would be more straightforward. At least with elected senators, there is a chance that state government and senator are not perfectly in line on every area of policy. Of course, this cuts both ways: they might prevent the blend of interests, or they might reinforce the centralising drive at the federal level. To tackle the latter, I think there needs to be a strong constitutional check on the federal level’s competences. These should be interpreted narrowly.

J. I think this is the layered-cake federalism vs. the marble cake federalism issue. I know that e.g. in the US the situation has become more complex due to the interweaving, but I think that the simpler model in which both tiers of government are separate is more suitable when one wants to explain the original idea behind federalism and how it is supposed to work. I also think that the layered-cake model is better for a federation in its first years. If there is a need and will, it can evolve into the more intermingled mode later.

P. Very much agree with this. Since you mentioned the equality of states, I go on a tangent. The Member States of the EU are not equal on every area of policy. See the UK’s opt out for instance. Or the fact that not all Member States are bound by the Fiscal Compact, or the different degrees of intervention between euro and non-euro states within the context of the European Semester. Add to that the way in which some Member States have become creditors of other states—this is not done between a federal level and a state level, but only on an inter-state basis. Furthermore, think of how voting power is determined in both co-legislative institutions: it is demographics, which means that bigger, more populated states are having a more weighted vote than the smaller, less populated ones (the ESM is also a case in point, although the weight of votes is based on each state’s committed resources).

Quasi-confederation or confederation proper?

J. You seem to differentiate between a proper and a quasi-confederation, saying that the EU is not the former because it is based on “a set of inter-state covenants between nation states” and not on a constitution. To me, the distinction is much more blurred, because both the US and Switzerland used to be based on exactly the same thing before becoming a federation. In the case of the US it was basically an inter-state treaty called Articles of Confederation. In the case of Switzerland, they initially had a multitude of multilateral treaties covering different areas, involving different Cantons. Since 1815 until 1848 they had had an inter-state treaty called the “Federal Treaty” (Bundesvertrag).

Some people today say that the Articles of Confederation were America’s first constitution. But in my humble opinion, this is either a simplification (skewed by today’s federal reality) or has exactly the same meaning as when you say that the current EU treaty is the EU’s de facto “constitution”. Moreover, some people had referred to both confederations as to “nations” before they became one, but I think this was a case of wishful thinking that later came true.

Maybe I am wrong on this, but it is really not that much different from how the EU is structured now. Even the effects and the symptoms of this setup are very similar. One of the differences that I can observe is that perhaps the EU is more supranational, because it has more institutions than the Articles’ Congress or the Swiss Diet (Tagsatzung) had.

P. The distinction I make is indeed focused on the constitution, but also on the claim that the EU is not a state. The Treaties are the EU’s primary law, but this is still a set of international treaties that found a common basis between the contracting parties. I agree, the EU design is confederal. I would have no problem saying that the EU is a confederation. But I believe that would imply that it is a self-determined state. I am not sure what was the international status of the historical examples you mention. I think the international dimension is important to fully describe the status of a political order. Does this political order have a single international presence in terms of, say, UN representation? If the EU were a confederation proper, I think it would qualify as a state with one international presence.

Take the UK as a proxy—just a proxy. It is a union between nations (we also see those nations in various sports), but in international terms, it is just a single state (granted the UK does not have a codified constitution due to its traditions, nor is it a proper federation, though I think it is going there). My point is this: if the EU becomes a confederal state, its upper/confederal level must somehow be present in the diplomacy of the international order. Currently, the EU is represented on international issues only insofar as states want it to, and always with the presence of certain powerful European states (see the recent agreements on Ukraine or the Iran deal where it also was France and Germany).

J. Some people would argue that the term “confederal state” is a contradictio in terminis.

P. I used to think the same in that either there is a state or there is a confederation (besides, we may say a “league of states”). However, my thinking has changed on this—what is the “league” as such?—also due to the ongoing negotiations to solve the Cyprus dispute. I will not bother you with the details, but there can theoretically be a “confederal state” in the sense that it has a single international personality as a state. Seen from the outside it would be a single state, with one seat in the UN. Seen from the inside it would primarily be a “federation of unitary states”, with very strong vertical separation between the [con-]federal and state levels and, perhaps, a very weak central government. The [con-]federal level would in effect just be concerned with external issues, or some major internal ones: security and some aspects of economic policy. The confederal level would not operate on the principle of subsidiarity, but only have a purpose-specific set of powers (well, the EU has both, though the tendency is always to misuse subsidiarity for centralising authority).

I want to think of federations and confederations as composite states so as to distinguish them from unitary states, but still denote their inner composition as unions of states. Couched in those terms, I would add a very basic distinction between a federation and a confederation (though, strictly speaking, I think there is no easy way to distinguish between the two): a federation is a uniform sovereignty, albeit one where the allocation of power is distributed across multiple levels of state and remains decentralised in nature. Whereas a confederation is a single sovereignty only with respect to the international order, since its inner structure is an aggregation of sovereignties, which may also manifest in the right of each state to legally withdraw from the union (the EU has this: Article 50 of the Treaty on European Union).

J. Interesting where different people see the difference. For example, the authors of the European Federalist Papers see it especially in the nature or the strength of the bond between the members (whether it can be unilaterally changed or not). D. Elazar and P. King also say something like that (the implications of the non-centralisation principle and that the constitution can be changed only under extraordinary circumstances, entrenchment of the local governments in the decision-making procedures of the whole etc.), but they also say or imply that it needs to involve the people. Preston says it must have the form of a state.

And I think that this is very important for a federation. By letting the people of the member states define themselves as one people with regard to their common interests (along with defining those interests) they create a [partial] republic [around those interests]. And breaking a republic like that (even though partial) is as difficult as breaking any other republic. That is almost impossible, unless the people agree or there is a major victorious rebellion. That’s why, in my humble opinion, there is no unilateral secession from a federation. Because it is inseparable and indivisible on the federal level. Just like a normal republic. The federal level itself is unitary. From this point of view, a federation is not even composed of the member states, but its own federal citizens who happen to be also the citizens of the individual states. Unlike confederations, which are made of different material of different granularity and glued together by a different type of glue.

P. Fully in line with this. I also think federations are made up of their citizens, not their member states. That is why I interpret the federal and state levels as extensions of the citizens’ two legitimation functions as citizens of the union _and _citizens of their respective state. _This is also why I generally think that [member] states as such cannot be the constitutional subject[s] of the constitutional order, for that would mean that the states themselves are distinct from their citizens (in which case, whence comes the _res publica? I say there isn’t any “common good” in the absence of citizen legitimation).

Concluding remarks

I want to thank Jakub Jermář for taking the time to seriously engage with my views and provide constructive criticism. This is not something I take for granted. I very much appreciate it.

Given this opportunity, I wish to highlight a certain claim I make in my “about me” page:

This website, protesilaos.com, is the platform for hosting my writings. My posts are my research. They document my thoughts and their evolution. By proceeding with their publication I do not purport to be an authority on any of the topics I examine. In fact, I remain inquisitive and dubitative, always eager to revaluate—even directly contradict—my opinions in the face of more cogent arguments or upon further reflection.

This is not some hidden disclaimer, some fancy way of denying any responsibility for what I write. It is how I genuinely see things: a dialectical approach. It is not about my position being the one to “win” an argument. What matters is to exchange views in an effort to approximate the truth—both sides “win” that way, at least in an ex post sense, as they are liberated from their former ignorance.

Jakub’s criticism has helped me understand some of the inchoate arguments I raise, highlighting the need for further clarity and precision. This is not so much that they are outright fallacious, but that they could use some refinement in certain areas.

At any rate, I think all federations are inherently complex, each with their peculiarities. Much of what distinguishes one federation from another are the specific ways in which authority is distributed and what may the constitutive parts of the federation be. In this light, we might as well acknowledge the fact that “federalism” has multiple interpretations and, most importantly, try to think through those issues so that we may reach a common—and better—understanding as to what we would like the EU to ideally look like.

Finally, please note that you can always contact me, to share your thoughts, comments, criticism etc. Also, make sure you follow Jakub Jermář on Twitter @jjermar and visit his website jermar.eu.