What_ if Anything_ is Wrong with a Copenhagen Commission

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					Analysis
July 2013


 Summary: The European Union          What, if Anything, is Wrong with a
 has two challenges regarding
 democracy protection: one is the     Copenhagen Commission?
 question of how the European
 Union should respond to the          The Idea of Democracy Protection
 actions of the current Hungarian     in the EU Revisited
 government. The other challenge
 is how to devise, for the long       by Jan-Werner Müller
 term, a new set of institutions
 or “mechanisms” to respond
 to deteriorations of democracy
                                      We need to distinguish two chal-                        measures?2 The latter peril is already
 and the rule of law in a member
 state. Both challenges can be        lenges: one is the question of how the                  pervasive in today’s EU because of
 looked at from at least two          European Union should respond to                        the eurocrisis — and the danger of
 crucial, but in the end clearly      the actions of the current Hungarian                    a Europe of permanent exceptions
 different, perspectives. One is a    government.1 The other challenge                        should not be compounded.
 practical one: what is deemed        is how to devise, for the long term,
 politically feasible and what is     a new set of institutions or “mecha-                    Let me, then, say something briefly
 likely to be effective in changing   nisms” to respond to deteriorations                     about the current challenge of how to
 the conduct of a member state        of democracy and the rule of law in a                   respond to what I think by now can
 government? The other one is         member state. Both challenges can be                    be called Viktor Orbán’s national-
 more clearly normative: what         looked at from at least two crucial, but                populist regime. It seems a reasonable
 can be justified from, broadly                                                               conclusion that Europe’s record so
                                      in the end clearly different, perspec-
 speaking, a liberal democratic                                                               far, while somewhat uneven, has not
                                      tives. One is a practical one: what is
 perspective?                                                                                 been as bad as some worried it might
                                      deemed politically feasible and what
                                      is likely to be effective in changing the               be. In particular, both the European
                                      conduct of a member state govern-                       Commission and the European Parlia-
                                      ment? The other one is more clearly                     ment have kept up more pressure than
                                      normative: what can be justified from,                  might have been expected; and the
                                      broadly speaking, a liberal demo-                       European Court of Human Rights as
                                      cratic perspective? How can one                         well as the Venice Commission have
                                      ensure that responses to violations of                  also clearly tried to show the limits of
                                      the rule of law are not themselves in                   what the Orbán government can get
                                      danger of looking like arbitrary ad hoc                 away with. All have done so, I would
                                                                                              argue, without giving the impression
                                                                                              that rules are simply made up as they
                                      1 I insist on the importance of choosing words          go along to make life difficult for self-
                                      carefully here; the problem is not “Hungary,” but a     declared Hungarian “national revolu-
                                      particular set of politicians and their disregard for
                                      the rule of law. Remember how Wolfgang Schüs-
                                                                                              tionaries.”
                                      sel and others managed to convince practically
                                      everyone that in 2000 we were witnessing “sanc-
                                      tions against Austria” — as opposed to bilateral        2 Again, a complaint that was often voiced against
                                      measures designed to express concerns about the         the EU-14 by the Austrian government in 2000 —
                                      ÖVP-FPÖ coalition.                                      and not entirely without reason.
Analysis

The reasons for this relative success are somewhat contin-                        right-wing majority). This should give us some hope that,
gent, however, and of course we do not at this point know                         at least in very serious situations, Europe’s institutional
the conclusion to the story. In particular, the Commission                        machinery is not entirely gridlocked or ineffective. So it
has been so completely sidelined during the eurocrisis                            would be wrong to conclude that either the Commission
that it has had every reason to re-assert itself as the proper                    or the Parliament should stop being involved in democracy
guardian of the treaties. Moreover, a lot — too much —                            protection. For instance, both the German Parliament and
has depended on the interests and initiatives of individual                       the German government, can initiate an attempt to ban an
commissioners. One cannot conclude that all is likely to                          antidemocratic party — the point is that they cannot have
be well — and, even less so, that if everything is left as                        the final say in whether, effectively, one of their competitors
it is, we have a response ready for the next government                           disappears from the political scene.
set on deviating from European standards. Especially if
the Commission were to become something like a quasi-                             Hence my proposal for an independent institution specifi-
government, with an elected president — in other words,                           cally tasked with alerting Europe to the kinds of dangers
if it were consciously redesigned as a visibly partisan actor                     we have been seeing in Hungary stands (see “Safeguarding
— then it would, in my view, largely drop out as a guardian                       Democracy inside the EU: Brussels and the Future of
of liberal democracy. And the Parliament now already has                          Liberal Order”4 and “Protecting Democracy and the Rule
the problem of being confronted with the charge of parti-                         of Law inside the EU or Why Europe Needs a Copenhagen
sanship, despite the fact that the Tavares Report went out                        Commission”5). On Verfassungsblog.de and elsewhere,
of its way to offer concrete examples of violating European                       a number of important concerns have been raised about
principles and standards (terms I would prefer to the cloudy                      this, and most of these concerns can be placed in what
                                                                                  I described at the outset as the category of normative,
                                                                                  as opposed to practical, considerations. However, some
The Commission has been so                                                        are also of a more practical nature, and I shall start with
                                                                                  addressing these.
completely sidelined during the
                                                                                  When Europe cannot solve a problem, it invents a new
eurocrisis that it has had every                                                  institution instead, as Jan Komárek puts it.6 Indeed, if
                                                                                  the political will that would be needed for an Article 7
                                                                                  procedure is lacking, or for a revised mandate for the
reason to re-assert itself as the                                                 Fundamental Rights Agency, what hope is there that a
                                                                                  Copenhagen Commission would fulfill the task of democ-
proper guardian of the treaties.                                                  racy protection? First of all, some support has in fact been
                                                                                  building for a new mechanism that would send an early
                                                                                  warning signal. Witness the Tavares report, which explicitly
talk of “European values”) and to draw on a wide range of                         calls for a Copenhagen Commission-style institution and
expertise. Still, despite major efforts by Hungary’s governing                    the letter to President José Manuel Barroso signed by four
party Fidesz and some of its allies in the European People’s                      EU foreign ministers that stressed the need for mechanisms
Party (the umbrella for Europe’s Christian Democratic                             short of Article 7. Second, neither the invocation of Article
and some center-right parties) to emasculate it, the report                       7 nor the FRA is particularly good for giving an early
passed the European Parliament’s LIBE committee3 largely                          warning signal, so to speak. Building support for Article 7 is
intact and was then endorsed by European Parliament as                            likely to take too long, and the Fundamental Rights Agency
a whole (despite the fact that the Parliament has an overall
3 The Committee on Civil Liberties, Justice and Home Affairs (LIBE) is in         4 http://www.transatlanticacademy.org/publications/safeguarding-democra-
charge of most of the legislation and democratic oversight for policies linked    cy-inside-eu-brussels-and-future-liberal-order
to the transformation of the European Union in the area of freedom, security
                                                                                  5 http://www.transatlanticacademy.org/blogs/jan-werner-m%C3%BCller/
and justice (AFSJ) (art. 3 TEU). These policies are intertwined with the imple-
                                                                                  hungarys-power-grab-should-make-eu-rethink-its-role
mentation of the Charter of Fundamental Rights in EU territory and with the
strengthening of European Citizenship. Source: http://www.europarl.europa.        6 http://www.verfassungsblog.de/en/the-eu-is-more-than-a-constraint-on-
eu/committees/en/libe/home.html.                                                  populist-democracy

2
Analysis

(FRA), at this point, simply does not have the appropriate        dards both in assessing an individual country over time and
mandate. A properly designed Copenhagen Commission                in comparing different countries.7 Without wanting in any
would have the right mandate and, above all, would concen-        way to fault the actions of the Venice Commission so far, I
trate minds in a highly fragmented political space and in a       insist that I do not see a principled argument for the Union
weak, some would say non-existent, public sphere. Europe,         permanently “contracting out” core normative concerns to
to put it bluntly, suffers from a perennial political attention   do with democracy, the liberal rule of law, and individual
deficit disorder. To remedy that disorder at least somewhat,      rights.
there should be a clear sense that when the people on the
Copenhagen Commission — the Copenhageners, so to                  To be sure, there might be a pragmatic worry among some
speak — raise an alarm, then something must really be             member states that the EU is likely to deepen its own legiti-
going wrong somewhere. And European elites — and Euro-            macy crisis if it were to pass judgment not just on budget
pean citizens — ought to pay attention.                           numbers, but also on liberal democracy and the rule of
                                                                  law. To deflect the blame, some member state governments
One might still object that we would just be duplicating          might think, it should delegate the unpopular work to the
existing institutions. After all, have the Venice Commis-         Council of Europe — just as some of the blame for what
sion and the European Court of Human Rights not done              Paul Krugman has called “austerianism”8 might be laid at
relatively well in addressing the situation created by the        the doors of the IMF, which was consciously brought in by
Hungarian government, a fact that should support the              European elites during the eurocrisis. But if one is serious
views of critics like András Jakab? My answer is that first of    about sanctions — and one ought to be — then it would still
all, the EU has reached a depth and density of integration        in the end have to be the EU who does the sanctioning. So
(and a level of interdependence) that finds no equivalent         one might as well accept the responsibility for forming judg-
in the Council of Europe. There is, for instance, nothing in      ments (and not just for implementing them), since, after
the Council of Europe like the principle of mutual recogni-       all, there are also enough EU citizens who precisely placed
tion (and what might follow from it normatively, which            their trust in the Union as a strong guardian of liberal order
is actually rather a lot for democracy-theorists such as          (as opposed to the Council, which can hardly be said to
Kalypso Nicolaïdis). EU law is also much more specific            have any “normative power” at all). Contracting out might
in areas such as data protection, and the Council and the         have some short-term benefits, if Europeans will really only
Venice Commission could not really comment on them.               blame the Council of Europe — but it might also have very
Second, it deserves mention that the Council of Europe is         significant costs in further eroding the legitimacy of the EU,
an even more fragmented political space (with no shared           which is already suspected of caring more about the rights
public sphere at all). Moreover, one might bluntly say that       of multinationals than the rights of individual citizens.
the Council contains members who probably would have a
hard time meeting the Copenhagen criteria. The problem
of double standards — charges of hypocrisy abound in
virtually any discussion of democracy-protecting interven-
                                                                  If one is serious about sanctions
tions — would be further exacerbated. We might eventually
face situations where Russia can gloat that the European          — and one ought to be — then it
Council has certified a country within the EU as undemo-
cratic, while Strasbourg remains condemned to inaction            would still in the end have to be
on Putin’s “guided democracy.” Finally, Strasbourg can only
properly address individual rights violations, whereas the
Copenhagen Commission could take a more holistic view.
                                                                  the EU who does the sanctioning.
The Venice Commission cannot be proactive, whereas the
Copenhagen Commission could routinely monitor the situ-
ation in member states and raise an alarm without having          7 Thanks to Kim Scheppele for this point.
to be prompted. It would thus also build up an institutional      8 For instance, at http://krugman.blogs.nytimes.com/2011/07/07/more-anti-
memory that would make it easier to prevent double stan-          austerianism/

3
Analysis

That leaves one important normative concern: the idea that
what is distinctive (and valuable, and demanding) about the               About the Author
EU is, in the end, pluralism. Tolerance is needed instead of              Jan-Werner Müller is a professor of politics at Princeton University,
homogenization or a mutual opening and respectful peer                    where he also directs the Project in the History of Political Thought.
review instead of a centralized institution defining and                  During the fall of 2012 he was a non-resident fellow at the Transat-
defending democracy and thereby destroying the precious                   lantic Academy in Washington, DC; he is currently at the Institute of
heterarchy of norms, as well as a highly demanding “ethics                Advanced Study, Princeton, NJ.
of a dialectic open-self,” in the suggestive words of Matej               A longer version of this post appeared on Verfassungsblog.de.
Avbelj9 that has emerged in the Union. One could — and
ideally should — have a longer argument about pluralism,                  The views expressed here are of the authors’ own, and they no
which, after all, is not a first-order value such as liberty,             way represent the official position of the Transatlantic Academy,
dignity, or equality, but which, to gain any normative trac-              Compagnia di San Paolo, or the German Marshall Fund.
tion, usually has to be justified with reference to another
value, cultural diversity perhaps, or democratic autonomy,                Transatlantic Academy Paper Series
or the beneficial moral-psychological effects of living with              The Transatlantic Academy Paper Series presents research on a variety
differences. It suffices to say that the EU has always been               of transatlantic topics by staff, fellows, and partners of the Transat-
about pluralism within common political parameters. After                 lantic Academy. Comments from readers are welcome; please reply by
all, the accession process has never been about maximizing                e-mail to Info@transatlanticacademy.org.
difference, but about ensuring sameness in certain regards
(democracy, rule of law, state capacity, etc.). As long as it             About the Transatlantic Academy
has been taking in new members, the EU has been in the                    The Transatlantic Academy is a research institution devoted to creating
business of making definitive judgments on whether a                      common approaches to the long-term challenges facing Europe and
country really is a liberal democracy or not. In that sense,              North America. The Academy does this by each year bringing together
mandating a distinct and highly visible body to monitor                   scholars, policy experts, and authors from both sides of the Atlantic
whether every country remains a liberal democracy does                    and from different disciplinary perspectives to research and analyze
not constitute a fundamental break with EU principles and                 a distinct policy theme of transatlantic interest. The Academy was
practices at all. And, as pointed out in my initial contribu-             created in 2007 as a partnership between the German Marshall Fund
tion to the debate, neutrality or indifference are not an                 of the United States (GMF) and the ZEIT-Stiftung Ebelin und Gerd
option. Europeans have decided to share their fate in certain             Bucerius. The Robert Bosch Stiftung and the Lynde and Harry Bradley
areas, they have opted for interdependence, and that means                Foundation joined as full partners beginning in 2008, and the Fritz
that as long as a member state government has not lost its                Thyssen Foundation joined as a full partner in 2011. The Compagnia
voting rights in the Council, all EU citizens are subjected               di San Paolo joined in providing additional support in May 2009, as
to its decisions. One could, of course, say the same about                did the Joachim Herz Stiftung and the Volkswagen Stiftung in 2011,
the United Nations. We are all subject to the decisions                   and the Aurea Foundation in 2013.
of the permanent members on the Security Council and
                                                                          The Transatlantic Academy’s Compagnia di San Paolo Fellowship is
thus at the mercy of undemocratic powers such as China
                                                                          made possible with generous support from the Compagnia di San
and Russia. The difference is that in the EU, we have a real
                                                                          Paolo.
chance of doing something about it.




9 http://www.verfassungsblog.de/the-hungarian-dilemma-from-a-pluralist-
perspective/

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