Tuesday, November 29, 2011

Magical Formula

Following the example of Peter Lindseth, I thought I'd also copy/paste my reply to Kenneth Anderson's question on Opinio Juris:

Part 1:
I’m not sure that I understand what you’re looking for. Obviously there is analysis like the one mentioned by my – let’s go with colleague – prof. Maduro above. The most famous one in recent weeks is by Joshka Fischer, also on Project Syndicate:

Such analysis is not uniquely the province of jurists; when you’re re-writing a constitution, you can do whatever you like as long as it is legitimate. And legitimacy is a political issue, not legal. What European law specialists can do is point out where there is and is not a need for a Treaty change. Behind closed doors, that’s what the Council has Mr. Legal for (the successor to Jean-Claude Piris, who actually wrote the Lisbon Treaty, in the sense of turning the political agreement into legal language). However, for many of the main proposals on the table today, it is perfectly clear that they require a Treaty change. (Or a change in the ECB’s statutes.) In that situation, law scholars have no particularly privileged position. They can make their proposals just like everybody else.

Part 2:
The “non-functionalist” outcome [i.e. the outcome that does not involve giving the EU whatever powers it needs to get the job done] will continue to be on the table for the very simple reason that, if the people are allowed to vote, they will vote against further integration in virtually every EU Member State. The victims of the crisis will vote against because they don’t want austerity – regardless of whether it is necessary – and the countries that are currently paying the bill will vote against because the people don’t want to pay for other people’s sins – regardless of whether it is necessary. (And the Brits will vote against because, well, because they’re Brits.)

And that is the uncertainty, looking forward: the members of the Council are exposed to two opposing sources of pressure: on the one hand, they want to do what is necessary, and on the other hand they want to “obey” their voters. (Or at least not upset them too much.) This tension is resolved a little through elections, even though such elections only bring people to power who will end up doing much the same thing as the politicians they replaced.

(Which is why elections in Greece aren’t a very helpful idea. Note also the paradox of Spain, where the indignados were so unhappy with Zapatero that they ended up electing a centre-right government instead.)

A more drastic solution is referendums. Even though voters have a surprising ability to abstain from voting while still complaining, referendums forcibly put everyone back on the same page. They give the people ownership of the problem and its solution, especially if they are properly designed, for example by giving people different alternatives, the way Switzerland does. If the people of Greece don’t like the current deal with the EU, do they want the government to renegotiate, to leave the Euro, or to leave the EU entirely? Regardless of how they answer, the legitimacy problem is resolved, at least as to Greece. The people deserve to get what they want, right between the eyes.

As the reaction to the Greek referendum idea demonstrates, most European leaders will not go that far. However, they are still exposed to elections. Sarkozy has to run for re-election next year. Merkel has a few more years, but she can’t afford to lose too many state-elections. This is why the uncertainty continues, and why everyone is looking for the magic formula. Joschka Fischer’s article, that I linked to above, is an attempt to do exactly that. He’s proposing something he really doesn’t like – a European Senate – as a way of simultaneously improving the EU’s legitimacy and pushing forward with European integration. And in many ways he’s right; all it takes is some magic formula that resonates with voters that shows them that the powers that be take their concerns seriously. The only problem is that it is impossible to tell which formula will work. Probably, the answer is that it takes a formula that is both drastic enough to have substance, and that is then adopted with full commitment by a large number of influential politicians, who use their political skill to sell it to the people. Untill the politicians take such a risk, there will be no magic formula, no solution to the tension between what needs to be done and what the people want done, and no end to the uncertainty and the speculation.

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