photo credit: Gernot Poetsch

Not too much closer union

In a wide-ranging and fascinating judgement, the highly activist German Constitutional Court has ruled that the Treaty of Lisbon is compatible with its Basic Law. There are, however, certain provisos that significantly affect the force of some of the parts of the Treaty that could lead to deeper integration without an amending treaty. It also has a lot to say on the future scope of European integration.

The press release is certainly worth reading in full, and it’s only seven pages if you copy and paste into Word – useful for highlighting. If you have time to read the judgement in full it’s more like 119 pages, but I think for those geeks of European integration and judicial philosophy out there it will be well worth a look.

I was going to wait to comment on this before I’d seen what the highly-recommended German Law Journal had to say about it (its discussion of a 2006 ruling is a great example). Then I noticed this evening that Nosemonkey had come out with some very interesting analysis into the ruling, and thought I’d try and get my initial thoughts down before seeing what any more people had to say on the matter.

As with many decisions it hands down, Germany’s Constitutional Court (or Bundesverfassungsgericht) did not pull any punches or avoid the opportunity to delve into areas of deep political and philosophical debate.

On a very simplistic level, the most important thing to point out is that the court upheld the compatibility of the Lisbon Treaty with Germany’s highest law, its Grundgesetz, or Basic Law*. However, in striking down a law on the participation of the Bundestag and Bundesrat in the EU post-Lisbon, it  made several highly significant rulings, both on the interpretation of the Treaty required in order to maintain this compatibility, and on the direction and endpoint of European integration. A fuller summary of its ruling is below, but essentially, it argued that any changes to Treaties (which, under Lisbon, could in certain circumstances take place without another inter-governmental conference) must be approved by the German Bundestag (and on occasions the Bundesrat too – the upper house), rather than simply a decision of the government.

Some of its strongest rulings came on crime and justice cooperation. It ruled that the crime and justice competences must be interpreted “strictly – on no account extensively -, and their use requires particular justification“. Additionally, where Lisbon envisages a fairly broad power for the Council to extend the list of serious crimes which would come under the EU’s competence, addition to this list would require primary legislation in Germany. The German Basic Law, the court ruled, does not permit a “Kompetenz-Kompetenz”. That is, it does not permit “the transfer of competence to decide on its own competence”.

European integration: obligatory for the German government, but tightly restricted

The Constitutional Court powerfully states that “The constitutional mandate to realise a united Europe which follows from Article 23.1 of the Basic Law and its Preamble means with regard to the German constitutional bodies that participation in European integration is not left to their political discretion.”

Germany is obligated to participate in European integration under its Basic Law. However, the Court significantly restricts what it means by participation in European integration:

European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life… This concerns in particular the administration of criminal law, the civil and the military monopoly on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

European Union as a federal entity: not only unconstitutional, but impossible within the existing constitutional order

The judgement argues that to create a European federal state would require a new constitution. This is because according to the Basic Law (Art. 79.3), “An amendment of this Basic Law affecting the division of the Federation into Länder, the participation in principle of the Länder in legislation, or the basic principles laid down in Articles 1 and 20, is inadmissible.” Article 20 states:

Article 20 (Basic principles of state order, right to resist).

(1) The Federal Republic of Germany is a democratic and social Federal state.
(2) All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible. (inserted 24 June 1968)

The transition into a federal European Union can thus not happen through a series of intergovernmental conventions. It can only happen if the German Basic Law ceases to be in force, which would occur “on the day on which a constitution adopted by a free decision of the German people comes into force” (Art. 146). This need not be a referendum: the Basic Law had to be ratified by two thirds of state (Land) legislatures, and Germany has been very suspicious of plebiscites since the end of the Weimar Republic. In any case, Article 20.4 provides the right of insurrection against any person seeking to abolish the constitutional order. The point, then, is that a federal European state would require an overthrow of the German constitutional order which renders this idea virtually impossible. Germans would have a legal right to insurrection against such a federal European state.

A federal European state, which in any case was unlikely, is expressly forbidden within the context of Germany’s existing constitutional order.

Democratic legitimacy of European institutions

The Constitutional Court went further than it needed to, in discussing the European project itself. It made some not-too-subtle hints that it might not be so accommodating in accepting the constitutionality of future Treaties. It, furthermore, stridently criticised the lack of powers of the European Parliament in stating that

The further development of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States. Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction.

It also indicated a problem in that “its election does not take due account of equality” – which is a product of the 27 member states being able to decide their own electoral systems for choosing their country’s representatives in the European Parliament. It cannot have a politically decisive effect in European institutions.  As a result, it states:

Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund [union of sovereign states], further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

This is very significant stuff. The ruling insists, at least to an extent, on a democratic deficit, if the existing constitutional order is to be maintained. Power can be delegated to European institutions only to a limited extent, and only through member states’ constitutional bodies as representatives of the people, in the Council of Ministers.

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

The Constitutional Court accepted the constitutionality of the Lisbon Treaty. But in reaffirming the inter-governmental nature of the EU, it underscored the right of Germany’s national parliament to participate in the legislative process, striking down the verbosely-titled “Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters”. In doing so it put definitive limits on the extent to which “ever-closer union” may continue.

***

Briefly, it ruled that:

1. “The approval of [...] Germany in simplified revision procedures requires a law”, rather than merely the assent of the government. (3bb)
2. “The representative of the German government in the European Council may only consent to a Treaty amendment brought about by the application of the general bridging clause if the German Bundestag and the Bundesrat have adopted … a law”  (3cc)
3. “The veto right in the Council may not be waived without the participation of the competent legislative bodies even as regards subject-matters which have already been factually determined in the Treaties. The representative of the German government in the European Council or in the Council may therefore only consent to an amendment of primary legislation through the application of one of the special bridging clauses on behalf of the Federal Republic of Germany if the German Bundestag and, to the extent that this is required by the provisions on legislation, the Bundesrat, have approved this decision” (3dd)
4. “Also the flexibility clause under Article 352 TFEU can be construed in such a way that the integration programme envisaged in the provisions can still be predicted and determined by the German legislative bodies. With a view to the undetermined nature of possible cases of application, the use of the flexibility clause constitutionally requires ratification by the German Bundestag and the Bundesrat” (3ee)
5. “The Federal Constitutional Court’s competence of review is not affected by Declaration no. 17 on Primacy annexed to the Final Act of the Treaty of Lisbon. The foundation and the limit of the applicability of European Union law in the Federal Republic of Germany is the order to apply the law which is contained in the Act Approving the Treaty of Lisbon, which can only be given within the limits of the current constitutional order.” (3ff)
6. “The competences that have been newly established or deepened by the Treaty of Lisbon in the areas of judicial cooperation in criminal and civil matters, external trade relations, common defence and with regard to social concerns can, within the meaning of an interpretation of the Treaty that does justice to its purpose, and must, in order to avoid imminent unconstitutionality, be exercised by the institutions of the European Union in such a way that on the level of the Member States, tasks of sufficient weight as to their extent as well as their substance remain which legally and practically are the precondition of a living democracy.” (3gg, my emphasis)

Finally, on the last point – in the field of criminal civil matters,  external trade relations, defence, and social concerns:

- Due to the fact that democratic self-determination is affected in an especially sensitive manner by provisions of criminal law and law of criminal procedure, the corresponding foundations of competence in the Treaties must be interpreted strictly – on no account extensively -, and their use requires particular justification.

- The use of the dynamic blanket authorisation pursuant to Article 83.1(3) TFEU to extend the list of particularly serious crimes with a cross-border dimension “on the basis of developments in crime” is factually tantamount to an extension of the competences of the European Union and is therefore subject to the requirement of the enactment of a specific statute.

- In the area of judicial cooperation in criminal matters, particular requirements must additionally be placed on the provisions which accord a Member State special rights in the legislative procedure (Article 82.3, Article 83.3 TFEU: so-called emergency brake procedure). From the perspective of German constitutional law, the necessary measure of democratic legitimisation via the national parliaments can only be safeguarded by the German representative in the Council exercising the Member State’s rights set out in Article 82.3 and Article 83.3 TFEU only on the instruction of the Bundestag and, to the extent that this is required by the provisions on legislation, of the Bundesrat.

- Parliamentary approval will still be required for deployment of German forces

* German does have a word for ‘constitution’ (Verfassung), but the term ‘Basic Law’ was chosen in 1948 as this document was not envisaged to be particularly permanent, pending reunification with eastern Germany, or what was to become the German Democratic Republic. (I think, anyway.)

photo credit: mohammadali

As Mark announced on the update to his post, Cameron has formally reasserted his desire for the Conservatives to leave the European People’s Party, the centre right coalition for the European Parliament. Then he will attempt to form a new bloc, which  supports the economic benefits of Europe but keeps away from the federalist leanings underpinning that the EPP displays.

The problem as the FT’s Brussels Bureau Chief, makes clear is that the alternative to the EPP doesn’t look that  promising and worse, where there is promise for a new bloc, that may cause Mr Cameron as many problems. Yet the Conservative Party’s European alliances are only a small part of the bigger picture. Cameron’s move away from the EPP is not unusual or without precedent in British politics but it is one that has been tried and tested before and has invariably come up short. Furthermore, Cameron risks isolating the UK from Europe precisiely at a time when greater cooperation is, and will be necessary, all to secure control of a rebel wing of his party.

British parties and Europe

British political parties have a long and enduring precedent of meddling with the European Union. This volatile relationship is largely unique in western Europe a product of our policy making and party system. Where other European countries such as Germany formulate policy with regards to Europe more at the technical level of the civil service, British parties have always juggled with Europe according to the needs of the party.

With such a narrow party system, the importance of party unity is paramount to maintain an electoral advantage, Europe has proved incredibly divisive to British parties over the years, from Conservative anxiety over its free trade (both for and against), Federalism ( more against) and immigration, to name but a few of the key issues. Labour have been similarly divided over issues such immigration, the protection of workers and union rights. Both parties have had pangs of regret, Europe seemed a decidedly less exciting alternative to the British Empire which both parties opted to cling onto as it crumbled through Post-war Britain’sfingers.

To resolve the issue, parties have had to avoid Europe as a wedge issue, and find a stance which placataes enough dissenters for it not to be an issue in the election. Three consecutive electoral defeats have left the Conservatives hungry for power, and Cameron wants no splits as the party heads towards a 2010 election but will his move to placate the wing of his party prove short-sighted, Brown you will remember tried a not dissimilar approach for the Lisbon Treaty wherehe opted to sign the agreement but miss the photo opp, pleasing no one and irritating everyone.

Cameron’s Problems

Cameron’s latest attempt to navigate the field are perilous.

Tony Barber outlines the options:

The most likely candidates are the Czech Civic Democrats (who have a helpful English-language website) and Poland’s Law and Justice party (Polish only, as far as I can tell, but here’s what the party slogan translates as: “Patriotism, solidarity, modernity”). Neither fits neatly into mainstream western European definitions of moderate centre-right politics. Both have earned a reputation for being “difficult” on the EU stage. Like the Tories, however, they are not afraid to challenge conventional wisdom. They should be taken seriously.

Other possible companions for the Conservatives are Italy’s Northern League, which is distinctly more right-wing. The League, I fear, could embarrass the Tories with its hostility to foreigners and rather peculiar version of northern Italian ethnic politics. Then there is the Danish People’s Party, which has a similar brand of conservative, anti-immigrant populism. Finally, there are some minor parties in Belgium, Latvia and Lithuania.

The problem for the Tories is that the chaps like them, across Europe, by and large are pro-Europeans leaving them with slightly oddball parties such as Law and Justice, who could cause them alot of potential embarassment if/when the Conservatives return to power. Law and Justice on issues such as  homosexuality, not to mention have proven particualrly awkward partners in the European Union, something which may marginalise Conservative’s position. Italy’s Northern League would be even worse, I could build a case against them but this poster from the 2005 regional elections in Italy does it so much better. Even within his party Cameron’s move could backfire,because in bringing back Kenneth Clark one of his biggest hitters in parliament and to the public, he has brought in one of the most pro-European Conservatives. Cameron is probably not a fool, andmust be aware of this but nevertheless it adds one more precarious balancing act that taps into deeply rooted feelings within the Conservative party, issue by issue he’ll have to take the temperatures of the factions to negotiate his pathway through Europe.

Britain and Europe in the 21st Century

I  am sympathetic to the Tory position on Federalisation, I disagree but their arguments are legitimate and fair. The European Union has largely failed to communicate what it stands for, what it does and where its going to, to European citizens. It’s not just the European Union’s fault, the British media and British political parties have constantly switched sides on Europe, always avoided the debate for fearing of exposing divisions in their own party.

The European Union however, is much much more than bendy bananas, more even than free markets and open borders. The European Union is about the long term security and future of the European continent, its very much about geopolitics and as Prodi made clear in a recent talk, no individual European country can have a serious voice on the world stage without standing shoulder to shoulder with its continental allies. This isn’t new, Europe’s status decline was evident immediately after the Second World War, it was a bi-polar world with the UK, a poor third place, desperate to maintain relevance through a relationship with the USA and by clinging on to its Empire.  Looking at the 21st century, the rise of China, India, Brazil and to some extent Russia will again significantly downsize the UK’s position in global standing. When Obama callled Cameron a lightweight, it was probably personal but it was also a pointed dig at his Euroscepticism, Obama’s belief that the UK’s position is as a big player through Europe but not a big player on its own.

Cameron has displayed some dangerous naivete on the world before,  his attempt to cash in on world leader status and make Brown appear dithering, during the Georgia-Russia conflict was embarassing, he showed a totally one sided view that barely took into account Georgia’s foolish military stunts on South Ossetia, offered provokative language with no examples of what was to be done and then ordered Georgia’s application should be sped up – which would only anatagonise Russia’s position and put NATO in a precarious spot having to provide cover for  Saakashvili’s   loose cannon foreign policy.

His attempts to paint a new world order where Britain can retain relevance without Europe and the US have a similarly hollow tone . Undoubtedlythe UK has opportunities with India yet to be exploted but if Cameron thinks these can amount to replacing Europe he is drastically over-estimating the UK’s role in the 21st century.  The UK’s economy is far more closely tied with both Europe and the US, our security issues frequently are far more closely aligned with the US and Europe, from border to security to terrorism and geo-strategic military interests.  Like it or not , the UK is inextricably linked to its “old foes”, the old Commonwealth  is over and  India will engage with us not the other way round.

The challenges facing the UK in the 21st century will require European above all European solutions,  not just border security, immigration and keeping open markets, some of the biggest issues will be challenges such as maintianging secure energy supplies in the face of Russi’a volatility,  transforming European economic development to fulfil the Lisbon treaty and invest in a research driven Europe in the so-called ‘knowledge economy’, does Cameron think India or the US will help the UK out with this, does he not think that the UK and Europe are irrevocably bound by geography and now the European Union.

The Road ahead

Where does this leave David Cameron and the Conservatives? By leaving the EPP and attempting to pursue a form of Europe supported by a minority group can only leader to the UK’s isolation and irritate other European leaders.

An Economist article a while back made the point clearly, there was a time when the UK sent its best and brightest to Europe, not because they were passionate about Europe but to make sure they got what they wanted out of it, those days are gone, and as the Economist went onto point out this represents a strategic error.From experience this hasn’t worked out well for Britain, because other European leaders simply continue to develop European policy which Britain is then left out of, unable to convert its strength into leverage because it alienates its potential allies to score quick points in party politics and refuses to seriously engage with Europe.

Thatcher may have won domestic plaudits for her rebate but her Bruges speech in 1988 was an embarassing admissions of how out of touch with European feeling she was. While Europe can prove frustrating to the UK, issues such as the CAP , the nature and size of its bureacracy and yes its federalist implications, half-hearted detachment only weaken’s the UK’s ability to alter its direction.  By leaving the EPP Cameron would not only be handicapping his relationship with other European leaders from the start but he would be weaken the UK’s long term ability to project its actual power into influence within Europe. One salient example is Blair’s attempt to reform the CAP, he had to give up the rebate just to gain a discussion of the CAP, yet had the UK been more engaged with Europe and cultivated alliances and policy positions, rather than pursue its childish semi0detachment Blair may have been more successful.

In reality, Cameron undoubtedly has some sort of fudged plan in mind, to appease both sides, but the future ahead looks set for a continuation of UK’s marginalisation in Europe, and that is of little good to anyone of its citizens.

photo credit: Albertane

Some argue that it’s impossible to achieve a common political identity across 27 member states, pointing to different political traditions, language barriers and the enduring pride of the nation-state.  The possibility of “demos” and the very logic of supra-national representation was, for example, attacked by Czech President Vaclav Klaus in the European Parliament last month.  The attitude of Klaus, whose country holds the rotating presidency of the EU Council (bring on Sweden), is indicative of a habit of  unproductive naysaying.  It slams the European project without offering solutions and delights only those with preconceived Eurosceptic attitudes.

Without indulging in the media-fostered image of phantom overlords plotting away in Eurospeak in their Brussels hideaways, then, I fully admit the need for a greater sense of relevance for the EU and the importance of attempts to foster “Europeanness”.  Indeed, in response to Klaus’s challenge, the task of pro-Europeans is to identify measures that could be taken to improve the extent to which Europeans identify with their policy makers and planners.  Below the fold, I discuss some of these ideas.

For a start, most people will vote in June’s European elections based on national political concerns (actually, most people won’t vote at all, but let’s worry about those who will for now).  In Britain, for example, June’s vote will largely be a protest vote against Gordon Brown, just as the 2004 vote was used to give Tony Blair a kick in the teeth with the assumption that it didn’t really matter.  This, of course, only devalues the democratic worth of the European Parliament, and because most Britons don’t know or care what it does, they also aren’t particularly bothered whether the PES or EPP come out as the largest party.

In order to take elections to the European Parliament seriously, citizens need to see its effects on their everyday lives.  The crux of the issue here is the complexity of EU institutions and the democratic deficit at the heart of power.  Paradoxically, of course, the Lisbon Treaty which would have extended parliamentary powers was rejected by the Irish and by British (and other) public opinion over fears of unaccountability.  A post by Jon Worth emphasises this point about relevance, and highlights the campaign to have the parties within the European Parliament propose the President of the Commission.  At least that would show that European elections had some tangible impact.  He  points to the “Anybody but Barroso” campaign as a vehicle.  By the same token, I think that having an EU Commission President with whom people can identify as a leader would do a lot of good (again, of course, we’re talking about the what would have beens of the Lisbon Treaty).  Given this, I’m not sure I subscribe to the idea of anybody but Barroso – having an established political figure take on the role, rather than some bureaucratic compromise (I’m looking at you Jean-Claude Juncker) would intrinsically imbue the position with worth.

One way to make European elections relevant in their own right would be to encourage the development of pan-European parties and policies.  It’s true that within Eurocratic circles, such things do exist: the PES manifesto, for example, is worth a look.  But these are not documents with which ordinary voters will be familiar, even if all the constituent parties have signed up to their principles.  As this post from the Democratic Society blog argues, we need not just pan-European parties, but pan-European campaigns “so that people who vote for the Labour party in England know they’re voting for the same thing as someone voting for PASOK.”

photo credit: laurentius87

It’s also the little things that count.  In a talk I attended today by  Romano Prodi, the former EU Commission President and Italian PM recounted a conversation with a “former British Prime Minister” who had stressed to him the need for British citizens to be able to relate to European institutions.  ”But Tony,” Romano continued with a wry smile, “why then have you blocked the EU flag and anthem from the [constitutional] treaty?!”.  The point is clear.  To identify with the European project, institutions need to be simplified, even renamed, and adopt the trappings to which people can relate.

We need to abandon the fallacy that inter-European differences render common political parties and other such facets of “demos” impossible.  Direct relevance to people’s lives could well be the way to do this, especially in a period of economic crises where international solutions provide the only means of recovery.  In his talk, Prodi used a nice analogy between the Italian Risorgimento and modern European integration.  Silicy and Lombardy may still disagree on a lot, and in the mid-nineteenth century, they didn’t have a particularly common language either.  At that time Massimo D’Azeglio declared that “Italy is made, now we must make Italians”.  Perhaps then, by providing a convincing concept of Europe, we can create Europeans.

photo credit: PappaJack

Tuesday marked the anniversary of Kosovo’s declaration of independence from Serbia. I meant to write about this sooner – but the day passed off largely without event, with none of the ugly scenes in Belgrade of a year ago.

In the extended entry, I’ll look at the effect of this declaration – both in Kosovo and on the wider international system – as well as the mood on the ground, from a visit I made there a couple of months ago.

(and I will definitely return to my mini-series on the EU in 2009 shortly – I should also have a post on Norway coming up in the next few days)

This post has become quite large so I’ve divided it up into the following sections if you’d prefer to read it that way.

• The International System
  • and Serbia
• Inside Kosovo
  • Division of Kosovo?
  • Mitrovica
  • Civil Society

THE INTERNATIONAL SYSTEM

photo credit: Iujaz [Away from Flickr]

The Maldives today became the 55th country to recognise the independence of Kosovo, joining the US, Japan, and 22 of 27 EU member states. Serbia, Russia, China, and (obviously) five other EU states have either refused or so far withheld recognition.

Ian Bancroft thinks that states are going to rescind their recognition of Kosovo following an ICJ judgement, expected within the next 20 months, on the legality of Kosovo’s declaration (and presumably that Kosovo is going to be put back into Serbia?). I think this is unlikely.

Each of the five EU states have concerns about separatism (or irredentism):

• Spain’s various regions include Catalonia, the Basque Country and Galicia.
• Cyprus, because of the ongoing unresolved problems with the separatist northern part of the island, the Turkish Republic of Northern Cyprus. I still don’t get why this wasn’t resolved before Cypriot accession, but that’s a whole different discussion.
• Greece is worried about irredentist movements in its region of Macedonia, from the FYR Macedonia, as well as having historically strong relations with Serbia. Also because of Cyprus.
• Slovakia, because of the large Hungarian minority in the south and east of the country (though there are suggestions this could change in the near future, according to B92). This is an interesting article from the DPA last year which (towards the end) hints at some of the problems Slovakia is worried about.
• Romania, also because of the Hungarian minority in Transylvania

This list may seem like a slightly disjointed point to start a discussion about Kosovo, but it demonstrates that even within now (relatively) stable Europe, there are large concerns about the integrity of borders and fragmentation. Kosovo represents the age-old conflict between the twin concerns of immutability of borders and self-determination, brilliantly enshrined in the Helsinki Accords of 1975.

photo credit: Ereine

The Accords were signed at the height of superpower Détente, as part of the Conference on Security and Cooperation in Europe, a precursor to today’s OSCE. Possibly as part of Kissinger’s policy of “linkage”, signatories recognised the immutability of post-war borders in Europe, a key aim of a paranoid Soviet Union that was craving this legitimacy for itself, and its satellite states in the Eastern bloc. In return for this, they recognised respect for human rights and fundamental freedoms, and “Equal rights and self-determination of freedoms”. The ten “Principles Guiding Relations between Participating States”, on the face of it fairly uncontroversial, are thus paradoxical (they’re worth a read in full).

As a result, while Serbia and its allies can say that Kosovo’s secession was illegal, Kosovo and its allies can say that it is perfectly legal. Interestingly, Russia siding with Serbia is in a somewhat complicated situation as Gorbachev certainly didn’t authorise the secession of any of the 15 Union Republics of the USSR.

(Incidentally — it’s funny that the Helsinki Accords, signed in, well, Helsinki, Finland, have played such a role, as the former President of Finland, Marti Ahtisaari, wrote the plan on supervised independence on which Kosovo’s declaration was based. They’re busy people, those Finns.)

Nevertheless, unilateral declarations of independence have been traditionally frowned upon by the international community, and certainly the UN which after all is a club of sovereign states. In the break up of the Soviet Union, the international community was adamant until the last minute that it would not accept its break up — and after that became a reality, it would only recognise Union Republics who declared independence. Chechnya is the exception which proves the rule, as it is the only non-Union-level Republic to be recognised (until South Ossetia and Abkhazia – more in a moment), and that was by the Taliban-controlled Afghanistan. The international community also set a deadline for Yugoslav Republics to declare independence.

Thus, despite the unilateral declarations of independence of the past, Kosovo did set a precedent. There are no other examples that I can think of where a country is recognised amidst such continuing (particularly international) wrangling over its status. That’s not necessarily to say that I think the UDI was the wrong course of action – just that it has set a precedent in the international system. The effect of this can very clearly be seen in October last year: South Ossetia (and even more dubiously, Abkhazia) were finally recognised as independent by Russia after hostilities in August/September 2008. The International Crisis Group also points nervously (2007) towards Nagorno-Karabakh, the breakaway region of Azerbaijan currently occupied by Armenia. The two countries went to war over this territory’s declaration of independence some fifteen years ago, with the loss of 20,000 lives.

I was fortunate enough to speak with Ronald Suny about the effect of Kosovo’s UDI (and subsequent recognition of it) on Nagorno-Karabakh a couple of months ago, just before I went out to Kosovo. He thought that it had had a large effect, as it made the de facto administration in Stepanankert, the capital of the breakaway region, believe that the Kosovan precedent may work in their favour. Last August/September’s conflict between Georgia and Russia probably made that less likely for Nagorno-Karabakh, however, as it suggested Russia would probably step in on the side of Armenia — and also because Turkey and Russia have started making greater overtures to each other, conscious that this conflict could set them at war with one another. That probably needs another post! (Although, this is another reason for diffusing tensions: oil and gas pipelines would be one of the first casualties of any new outbreak in Nagorno-Karabakh.)

Nagorno-Karabakh is a complicated example, but in other situations it’s likely that the recognition of Kosovo’s declaration of independence will have emboldened those similarly seeking recognition.

Serbia

Finally, in considering the effect on the international system, we should not forget Serbia. Last year’s pro-Europe (ish) vote was surprising and unexpected, coming three months after Kosovo’s declaration of independence. However, perhaps this will allow Serbia to finally start closing the door on the nationalism which has led the country into disastrous wars and economic hardship. On the anniversary of independence, Serbia’s President Tadić continued to insist that “Kosovo is not a country”, but the rhetoric has been toned down; in contrast to the amibuous rhetoric of the same time last year, he emphasised that Serbia will defend its “legitimate rights by legal and diplomatic means, not force.”

Shortly before last year’s election, Serbia signed a Stabilization and Association Agreement (SAA), a precursor to EU membership negotiations, and the arrest of Karadzic (and reports of greater effort to find and arrest Mladic) suggest that Serbia is making genuine moves towards European integration. It seems as though the EU’s soft power is finally attracting Serbia.

INSIDE KOSOVO

The mood in Kosovo on the anniversary depends who you ask: even the AP can’t quite make up their mind – it’s either ‘jubilant‘ crowds pouring on to the streets, or a struggling, barely-recognised, crime-ridden territory. I think I’d probably lean much more to the former. Maybe I’m naive and overly optimistic, but the ethnic Albanian Kosovans I met seemed genuinely proud of their accomplishments.

That’s not to say they don’t recognise the massive hill they’ve still got to climb: there are indeed problems with corruption, unemployment’s hovering at above 40% (and with some 70% of Kosovans under 27, that figure’s only going to rise in the short term). Then, along with the frequent electricity shortages which make business very difficult, they have to contend with continuing uncertainty over the northern quarter of their already small territory. In Zvecan, just outside the flashpoint town of Mitrovica, Serbian lawmakers on Tuesday adopted a resolution denouncing Kosovo’s declaration of independence.

Division of Kosovo?

These moves are not really unexpected, but they do emphasise the continuing (and in some ways growing) division of Kosovo. The “Six Point Plan” is controversial in Kosovo, as many see it leading to partition, or at least parallel institutions. EULEX, the European Union law and order mission taking over from the United Nations Interim Administration Mission in Kosovo (UNMIK), is deploying under this plan. This is the reason for the large amount of grafitti around the capital Pristina – “EULEX – Made In Serbia” – and “NO EULEX” being written on red traffic lights. So what does this Six Point Plan actually say?

It’s remarkably difficult to find out. This is the only site I could find which actually lists the points, but it doesn’t seem particularly contentious (except perhaps point C, exclusively UNMIK control in northern Mitrovica with local prosecutors and judges). It turns out the “Six Point Plan” is part of the Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo (S/2008/692 via this link) (PDF) on reconfiguring UNMIK, presented in November 2008. The Six Points were drafted in consultation with Belgrade; Kosovo rejected the reconfiguration (its response is in Annex I), arguing that they gave too many concessions to Serbia.

The relevant parts of the six points are (from page 8, my summaries):

A: Policing - more localised policing, particularly in non-ethnic Albanian areas

B: Customs - reinstatement of international customs officers (rather than nothing, as is the case at the moment, or else Kosovan customs officers)

C: Justice - for the first 60 days, the new northern Mitrovice courthouse will be staffed by UNMIK only; after that point, it will be staffed by local judges and prosecutors – potentially creating a parallel system outside the rule of the Kosovo Ministry of Justice, especially as “The mix of local judges and prosecutors appointed during the phases will reflect the communities and territorial jurisdictions that they will serve.”

Essentially, the concern is that northern Kosovo will adopt a parallel judicial system, especially as parts B and C include the words “in accordance with Security Council Resolution 1244 (1999)”. Potentially also controversial is that, under paragraph 50, EULEX will operate in accordance with that same Security Council Resolution.

Mitrovica

I recommend at least the first six pages of this report to anyone with an interest in Kosovo. It’s very good at setting out the current situation there, particularly with reference to the north/south division. We travelled to Mitrovica while in Kosovo, and the tension really is palpable. We walked up to the famous bridge across the River Ibar which both joins and divides the two communities – Albanians in the south, (mostly) Serbs in the north. The UNMIK official just before the bridge told us that we were welcome to cross, but that it was a “ticking time bomb”; the Kosovo Police Service policeman on the bridge told us that we could cross if we wanted and that most likely nothing would happen, but that “as a friend” it wasn’t worth the risk. The north side was daubed in Serb flags and cyrillic script, and policemen on the northern side told us to move on quickly, so we returned (also partly because the FCO avoids against all but essential travel there, so our insurance would have been void). We did see people crossing (few, mind) so it seems that it’s not impossible – but the KPS guy at the south side of the bridge told us that he once drove his police car in there and had it smashed up. The Kosovo Police Service no longer insure their policemen driving in to the north alone.

Civil Society

The UN report highlights another big problem in Kosovo: the lack of well-developed civil society institutions, or just the fact that they’re often ignored. This was a key, repeating theme we saw while we were there. One large civil society institution told us that people had been concentrating so hard and for so long on the question of independence, everything else had been put off until this was resolved. The civil society institutions are developing however – from civil, human, and disabilities rights organisations through to media and environmental protection, NGOs are opening their doors and consolidating their efforts throughout.

Kosovo, then, is a long way off full acceptance into the international community, but it is beginning its journey down this long road. The current remaining issues over the status of northern Kosovo present an obstacle and a potential flashpoint for the future, and the possible reinforcement of parallel institutions by UNMIK is something that needs to be avoided. The creation of a true multi-ethnic state in Kosovo is not pure fantasy; indeed, the UN report notes that “…freedom of movement is not a serious concern of the minority communities, except for the Kosovo Albanian minorities in northern Kosovo.” (para 19, p16)

What is undoubted, however, is that this is a place to watch in the future.

photo credit: rockcohen

Five years on from the “big bang” enlargement of 2004, and in a year of such economic turbulence, what are the prospects for European integration this year? Analysing this situation is difficult because there are so many different factors to consider, from the world recession and the European Parliament elections in June to the continuing saga of the Lisbon Treaty and the the energy security challenges posed (in particular) by Russia. Many of these issues have already been highlighted in Mark Mardell’s excellent Euroblog.

In order not to dilute the importance of all of these issues, it’s probably worth devoting a post to each of them. Today we’ll start with the global economic downturn – join me below the fold.

Economic slowdowns have historically – almost without exception – led to greater protectionism as each country faces demands from its electorate to shield them from the rising storm of global financial turbulence. This can certainly be applied to the history of European integration; the 1970s and 80s saw a halt to further integration, as well as protectionism, particularly through non-tariff barriers. One of the most famous cases was in 1982, when the French government demanded that all Japanese VCRs pass through a customs inspection (to ensure health and safety standards) in Poitiers, a small town in the centre of the country. With limited resources and only eight members of staff, this significantly increased cost and reduced the quantity of imported videos. The abolition of such non-tariff barriers has been the driving force behind the Commission’s zealous pursuit of standardisation and harmonisation – the regulations which often result in the stuff of British Eurosceptic dreams – bendy bananas and the abolition of British orchards, for example (both of which remain rather more dreams than reality).

For European integration itself, the 1970s and early 1980s were termed the ‘doldrum years’, as they saw virtually no new advances in integration during this time. Nevertheless, it still saw the accession of the UK, Denmark and Ireland in 1973, followed by Greece in 1981 and Spain and Portugal in 1986. This suggests that, while deeper integration is off the cards, a widening of the Union is a still a possibility.

This therefore raises two questions: firstly, does a nasty economic downturn really preclude deeper integration? And secondly, should we look forward to another enlargement in the next couple of years?

Deeper integration

photo credit: insidious and subtle M

On the first point, the evidence is mixed. While the 1970s and 80s do seem to suggest that deeper integration is indeed more difficult in a recession, the Maastricht Treaty establishing the European Union was signed in 1992 in the middle of economic unrest – although, of course, in difficult circumstances. The economic problems now rocking the global financial system as a result of sub-prime loans and the consequent credit crunch may also persuade leaders of the need to be part of a larger community than an individual country; while speculators may rock the Icelandic Krona or even Sterling, the much larger Euro has proved far more resilient.

On the other hand, countries may (understandably) cave to more populist demands and raise tariffs and quotas, or introduce non-tariff protections along the lines of France in 1982. The EU is urging the Obama administration to strip the protectionist “Buy America” provisions from the stimulus package currently working its way through Congress. The growing clamour in the UK over the employment of workers from other parts of the European Union in the energy sector shows that in a recession, arguments about the benefits accrued from pooling resources in a common European Union fall by the wayside when people see jobs in their local area going to people from elsewhere.

As yet, the British government shows few signs of backing down in this dispute. Certainly, to place barriers in the way of Italian or Portuguese workers from taking on jobs in the UK would be to radically clash with the core purpose and goals of the Union, focused around the four freedoms of labour, capital, goods and services. It seems fairly unlikely that this will happen, and in any case, British workers have benefited enormously from the ability to work with relatively few restrictions in a much larger labour market (apart, of course, from the language barrier) throughout Europe.

Non-tariff barriers will always be a problem in the European Union, despite the best attempts of the Commission. Even without any additional laws, geographic and social mobility will always be a problem (as in the US), but as mentioned above Europeans have to face the additional problem of the language barrier. Nevertheless, casual and hidden discrimination is certain to remain and likely to increase during the recession. The UK has been much more enthusiastic in embracing competitive tendering processes in good faith than its counterparts on the continent: it’s no coincidence that the French police drive Peugeots and the Germans use Volkswagens.

Another brilliant example of non-tariff barriers can be seen in the varied response by EU member states to the credit crunch late last year. As Irish banks teetered on the brink of a run on the bank, the Irish government announced that it would insure 100% of all savings in the three biggest Irish banks – not just those savings held by Irish citizens or residents. Governments across the Union reacted angrily, denouncing it as illegal state aid. Fortunately, the Internal Market Commissioner Colin McCreevy is Irish. Less cynically, the Commission seems to have taken the view that state aid is inevitable (and possibly even desirable) at the moment to prevent the collapse of industries and financial institutions which in less extreme circumstances would be fairly robust. Thus, while Italy’s attempt to prop up Alitalia last year was struck down by the Commission, the UK’s plans to provide support to a range of “strategic industries” have not faced the same problems.

The global economic downturn will therefore have some impact on deeper integration, and Ireland’s second referendum on the Lisbon Treaty in Autumn will be key (but that’s for another post).

Wider integration: prospects for EU enlargement

photo credit: Atli Harðarson

On the second question of EU enlargement, the prospects are more difficult to tell. Again, the Irish second Lisbon Treaty referendum is highly significant, as there is widespread agreement that there can be no further enlargement in the EU’s present institutional set-up. Again, however, that’s for another post.

If we assume (and it is a big assumption) for a moment that the Irish vote yes in the second referendum, what then are the prospects for EU enlargement?

On Friday there were reports that Iceland could be fast-tracked into the EU, to join at the same time as Croatia in 2011. The country had previously been fairly Eurosceptic, to a large extent as a result of its reliance on fishing and opposition to the EU’s Common Fisheries Policy. However, the economic crisis has had such a big impact on Iceland’s economy that the social democrats, set to enter into a coalition with the anti-EU Left Greens, are likely to push for a referendum on EU membership as soon as possible. An alternative to full EU membership – of “unilateral euroisation” – has been suggested, under which Iceland would unilaterally adopt the single currency along the same lines as Montenegro did in 2003. According to the Guardian, however, this is dismissed in Brussels as nonsense, and indeed Iceland is not Montenegro.

Nevertheless, given that Iceland probably already meets all of the Copenhagen criteria, membership negotiations could be expected to progress rapidly, and most of the work would involve the transposition of the EU’s laws and regulations into Icelandic law. In any case, a lot of these will already have been transposed, as EFTA/EEA members like Iceland and Norway have to adopt a lot of EU laws to allow them to trade with the EU.

Dependent on the outcome of the Lisbon Treaty referendum in autumn, the global economic downturn could thus act as a stimulus to further EU enlargement this year. One notable exception, however, is Turkey: while membership negotiations were already difficult (with France and Germany decidedly unenthusiastic), rising unemployment will make existing member states much less interested in permitting the free movement (into their labour markets) of another 90 million people.