Berkeley – Goldman School of Public Management


31 October 2014

James Wimberley


Internationalism and Supranationalism in Europe: a Clerk's Tale


My friend Mike has invited me to talk to you about this distinction from my perspective as a former minor Eurocrat, not an academic. How could it be interesting for you? Partly because it can show you an alternative Overton window.

The debate in the United States about foreign policy has basically taken place between isolationists and internationalists. The internationalists have thought that the US should be an active player in the world. The terms of this engagement have been conventional: an interplay of forces and interests (the aspect emphasised by realists) within a system of formally equal independent sovereign states and multilateral organisations (this aspect emphasised by idealists).

The basic scheme goes back to the Peace of Westphalia in 1648. This put an end to the Thirty Years' War, which had spread to involve most of the countries in Europe, so it took five years to negotiate between 109 delegations and involved a cats'-cradle of interconnected agreements between major players like Spain, France and the Empire and minor ones like the German princes. The Peace entrenched the principle, or legal fiction, that states are equal in sovereignty and can only be bound by their consent. Where did this come from, intellectually? I have some speculations which I will spare you now. I have put them as an endnote1 in the text of this presentation, or we can come back in discussion if there is time.

In Europe the debate since 1945 has been between internationalists and supra-nationalists. There has been no dispute, among élites anyway, that preventing a rerun of the disastrous first half of the century required much more intense cooperation between states and interchange between peoples. The internationalists, always including Britain and often France, thought this could be done by traditional Westphalian methods. The Council of Europe, for which I worked for 32 years, was set up in 1947 on these lines: a vague and aspirational mission of “greater unity”, no intrinsic powers, and a Parliamentary Assembly and Committee of Ministers to do what they liked outside defence. In practice, action had mainly to take the form of conventions, multilateral treaties adopted by Westphalian consensus. The Council's high spot came early, with the adoption in 1949 of the European Convention on Human Rights, Britain playing a leading role in the drafting. We soldiered on, and are now up to 216 conventions, and a much larger number of policy recommendations generated by a small army of committees. It all looks very much like the UN family of organizations, or regional ones like the OAS or ASEAN. This was the way I worked, and although the limitations were often frustrating, I am biased towards thinking it's a decent model.

The supranationalists were led by the French statesman, political entrepreneur and super-bureaucrat Jean Monnet. He held from the start that internationalism was fatally flawed and insufficient. To hold Europe together, you needed much stronger institutions, in fact a confederation though he avoided the term. The crucial thing was for European states to delegate decision-making powers upwards to European bodies. Taking advantage of a temporary crisis in the European steel and coal industries, he got his way in 1951 and set up the European Coal and Steel Community. That was the bridgehead. He expanded it in 1956 to a free-trade area, the European Community, keeping the same institutional model, which still holds today. The key features are: delegated powers in a defined (but regularly expanded) area, “competence”; carefully designed procedures reserving initiative to an executive body, the Commission; decisions by a majority of states, not unanimity; and its own judiciary, which has proved a reliable ally in expanding powers and asserting legal primacy.

To anyone brought up on the US Constitution, or indeed any written constitution, it looks like a dog's dinner. Each new acquisition of competence, as with criminal justice, has come with its own decision-making procedure. The British Foreign Office is always trying to make this more intergovernmental, the Commission fighting to defend its exclusive position.

How did Europe end up with this strange beast? You can't answer this without reference to Jean Monnet's very unusual background (see his very readable memoirs). He was the scion of a dynasty of cognac shippers, and for long periods earned his living as a globetrotting and English-speaking salesman of high-quality booze. But Cognac is a Calvinist town, and he absorbed its dour work ethic. Like Churchill, he was a stormy petrel, and came into his own in times of crisis. In 1917 he was in London, trying to plan Atlantic shipping convoys. The conventional decision-making by consensus was not working. Monnet and an English colleague, Arthur Salter, persuaded the British, French and American governments to let them run the show, and it worked. This was 1917, remember: all sorts of traditions were buckling under the pressure of the relentless casualties on the Western Front, with no end in sight. So Monnet had his epiphany of a successful model of international cooperation: delegation of authority to capable executives in a narrow area.

After the war, Monnet served high up in the League of Nations, as Deputy Secretary-General. A classically Westphalian institution, which failed miserably. Monnet went back in 1923 to selling cognac, along with freelancing to stabilise the zloty and so on. In 1940 the guns started again. Monnet went to London and volunteered. The British had the good sense to send him to Washington with their purchasing commission: as in 1917, with enormous delegated authority, this time with a blank cheque-book. (The P51 Mustang, the plane that destroyed the Luftwaffe, came out of a British purchasing requirement before Pearl Harbour.) In 1945 he's in Paris setting up the Commissariat au Plan for de Gaulle – again with wide and largely unaccountable authority. Monnet never went to university, and never worked in the kinds of public job where you have to worry about overstepping your authority.

The institutional culture of the Commission is as stamped with Monnet's mindset as the FBI is with J. Edgar Hoover's. His Manichaean ideology was inherited by the staff of the Commission. They are surrounded by a hostile world, and saving Europe requires the accumulation of more power. They are not otherwise ideological at all, nor conventional empire-builders in the way of more staff. Parts of the Commission are free-market, as with competition; parts as statist as Colbert, as in agriculture. Let me give you one recent example of the method. The Commission has proposed a collective EU renewable energy target of 27% by 2030, to achieve a 40% cut in GHGs relative to 1990. (That's energy, not electricity.) Green activists and politicians have been pressing for binding national targets within this. At first sight, you would think the Commission would support national targets, as maximising the impact of European policy. But no. They have pressed instead for a “governance system” for energy policy which will require national governments to consult them frequently. The open-ended right to interfere will mean more power in the long run. Incidentally, it looks, after a long tug-of-war, as if governments will approve the targets the Commission proposed: a textbook demonstration of the framing power of the monopoly of initiative.

Monnet was clearly right to think there is an important distinction between supranational and internationalist methods. European integration would not have got half the distance it has by classical methods. When eastern European countries like Poland started applying for EU membership after 1990, they were presented with a stack of Community legislation and regulations. They weren't asked their opinion on it, just told it had to be adopted as the price of admission. The stack was 50,000 pages high (2.5m at 0.1mm, double sided). This may be an underestimate.

But where I do think he was wrong was about the nature of the distinction. It's not absolute, as he thought and the Commission still thinks, but a continuum. If you look round, you can see a remarkable number of places where international bodies and their executives have acquired genuine decision-making powers. A few examples. [I expect to shorten the list in the oral presentation]

1. The conventional treaty mechanism has no intrinsic limits on scope. A state can sign away its very existence, as with the Treaty of Union between England and Scotland in 1706. A treaty can set up court which can issue unappealable decisions, as with the European Court of Human Rights. The more federalist members of the European Union resorted to the good old treaty mechanism to set up the Schengen common immigration area in 1985, bypassing a British objection. In a way American isolationists are right, every treaty is a loss of sovereignty. But like getting married or taking a job, the loss of negative liberty can be compensated by greater positive liberty in achieving your life goals.

2. Similarly, treaties have no intrinsic limits on enforcement either. At the baseline. bilateral disputes, including disputes over the interpretation of treaties, can get referred to the World Court in The Hague by agreement for adjudication. (A Franco-British spat over ownership of the Minquiers, an uninhabited reef between Jersey and Brittany, was settled there in 1953. It turned on the meaning of the Treaty of Paris in 1246.) Multilateral treaties (conventions) commonly provide for some more specific implementing mechanism. In the 216 conventions adopted in the Counvil of Europe since 1947, I counted 116, ranging from a vague monitoring duty placed on an existing committee to an independent inspectorate (Convention against Torture).2 The one convention I was responsible for has a monitoring committee3. The mechanisms have got more significant over time. I've no reason to think that other international bureaucracies are less productive or behave any differently.

What is the overall effect of this large collection of treaties and mechanisms? Individually, they don't constrain the sovereignty of states by very much, Collectively, they remind me of the many gossamer ropes of the Lilliputians who found Gulliver asleep and tied him down so that he couldn't move at all.

2. The United Nations sometimes looks like a zombie of the failed League of Nations, but departs from the model in two ways. It's not egalitarian. The members of the UN Security Council stand above the rest; you can see it was born in a wartime alliance of un-equals. To carry out its decisions, the UN runs a quite large army: 96,000 troops and police as of July, in 16 current operations. Obviously any military operation requires delegated authority. There is of course a lot wrong with this scheme. The Security Council no longer even roughly reflects the most powerful countries in the world. Renting soldiers from the cheapest bidder is not a recipe for professionalism. The Security Council has mothballed the Military Staff Committee provided for in the UN Statute, so there is no proper staff or headquarters. It's all run on a frayed shoestring by a handful of the most overworked civil servants in the world. But the UN does have guns, even a few helicopters, usually white.

3. The Geneva Conventions setting out the laws of war are the ultimate expression of the Westphalian philosophy. Grotius wrote the seminal treatise on the laws of war. But they have as their executive monitor and secular confessor a private Swiss non-governmental organisation, the International Committee of the Red Cross, even more single-minded and prickly than the European Commission. Belligerents, like the USA at Guantanamo, may not like the ICRC, but they trust it a lot better than any alternative.

4. The oddest example of delegation is the governance of the Internet. Two atypical institutions of states, DARPA and CERN, nurtured it and left it to be run by engineers, in what to lawyers looks like a meritocratic anarchy invented by Robert Heinlein. Legally the key bodies, ICANN for the domain names, the IETF for the communications standards, and the W3C for HTML, are private bodies invisible to international law. But nobody much cares, and efforts by the lawyers to make them honest international citizens by treaty have so far been rebuffed. The treaty would be attached to some existing international organization (the ITU has been auditioning for the role) and subject to reactionary pressures. Major interests – governments of different complexions, international organizations, telcos, and data service companies like Google – might all prefer change, but their interests pull in opposite directions and cancel out. However, Snowden's revelations have led to a general loss of confidence in the benevolent neglect of the US patron, and a more formal structure may emerge. What is unlikely to change is the decision-making autonomy of the engineers.

I hope this brief survey has been mildly interesting to you as a part of life's great tapestry. But what relevance can it have to the USA, the hegemon, the one country that has the means to do as it sees fit? Is it a serious hypothesis that the USA might surrender a significant part of its sovereignty, as European countries have done?

We can probably rule out any remotely comparable regional supranationalism. The USA has only tow immediate neighbours, with little in common. There is AFAICT no constituency for going beyond NAFTA. The OAS is a classical intergovernmental organisation like the Council of Europe, and has no ambitions to be more.

Globally there are clearly a lot of problems with the global institutional ecosystem, problems that harm the United States. The system needs repairs, that no doubt go beyond better policies. But a shift to supranationalism would need a crisis that made the case compelling.

We have one such crisis: the disruption of the climate from large-scale burning of the fossil fuels on which we have depended for 250 years. I won't argue the magnitude of the challenge here, just assume that we - the human race - have to transition to a fully sustainable economy in energy and land use by 2050 or before. What does this mean for international relations and global governance?

It is not automatic that the challenges are institutional game-changers here. The impacts are local, and so will be the responses. Most of the required policies involve changing the incentives for individual agents, families and companies, to do things that are their agenda anyway. So let's start with a baseline of no international cooperation at all, which is a fair approximation of where we are today, apart from the successful Montreal Protocol ban on CFCs. Then we ask where this will fail.

There are three possible types of response: adaptation, mitigation, and geoengineering.

Adaptation, the preferred conservative response, is curiously more statist than mitigation. Only governments can build massive flood control projects. By massive, I mean like the Dutch Delta programme. Definitely worth a detour. Much of the scale of adaptation is national like that, or sub-national. Failure could lead to an unprecedented refugee problem, especially from Bangladesh. I can't see why in principle these problems can't be dealt with, to the extent they are manageable at all, by internationalist, Westphalian methods. It would involve huge amounts of money, like the Marshall Plan – a Westphalian success.

Mitigation is much to be preferred and the experts tell us it will be cheaper. In fact, they tell us that overall it won't cost anything, at least on the 2 degree C, 450 ppm pathway; perhaps not on Hansen's steeper 350 ppm pathway. The international community has been trying for a decade to set up a global mitigation agreement. So far it has failed, and will continue to do so. The technical limit to the internationalist method was IMHO reached with the enormous Law of the Sea Convention of 1982. All the issues were perfectly understandable, it dealt with a fairly narrow and static area of policy, with a lot of previous law and precedent, and the economic interests, while large, were not critical to most countries. It still took 9 years to negotiate, and get 160 delegations to agree, line by line. Emissions mitigation looks to lie beyond this. What is the basis for consensus between the doomed Maldives and Saudi Arabia?

At first sight it looks like 1917 or 1951 all over again, and you need a new Jean Monnet to act as benevolent dictator. I doubt it. What has changed in the last decade is the estimated cost of mitigation. At zero, the free-rider problem disappears, and with it the necessity for a global agreement. A coalition of the willing would do the job, and that's attainable by Westphalian methods. If China the USA, India and the EU agreed in a back room to phase out coal in 25 years, the problem is more than half solved. Conventional diplomatic pressure could bring most of the others on board. If they choose to act separately by cap-and-trade, they can link the schemes; a global scheme is not necessary either. So whether the world acts or not, it won't be by supranational methods.

That makes two rounds to Grotius and none to Monnet. How about the last option, geoengineering? It's a last resort - expensive, dangerous, and untried. The world has to be in very bad place before it is used. Decision-making has to be by experts, given a blank cheque or immunity from the consequences of their actions if it all goes wrong. This looks to me very like the North Atlantic in 1917. You must have convoys, against U-boats; they have to be routed quickly by a dictator. So I suggest that if we end up needing geoengineering, it will have to be managed by the supranational methods of Jean Monnet.

Thank you for listening. I hand the mike back to Mike for the discussion.


Endnotes


1Speculations on the origins of the principle of state equality, in no order:



a. Kings. The equality of states is the equality of (European) kings. Not because they are equal in power, which has never been true, but because they all, and they alone, have access to magic king-stuff dispensed by the Church in prestigious rites of coronation. In Hungary, the crucial symbol of monarchy, the Crown of St. Stephen, was actually supplied by the Pope from 300-year-old stock, originally from Georgia. The mediaeval Papacy systematically supported kings, who might be predatory thugs, against barons, who certainly would be. So you had the influential ideal of Christendom as a club of kingdoms under the Pope.

b. The state of nature, a powerful invention of 17th-century thinkers such as Thomas Hobbes. International law is a work in progress. It constantly threatens to relapse into the baseline state of nature, in which force rules. The fundamental right of a state is to make war. Formally speaking, as combatants states are equal. They confirm their status by not losing.

c. The Dutch wrote the book. The father of international law, Hugo Grotius, was Dutch. He wrote in the first quarter of the 17th century, when the tiny United Provinces of the Netherlands were fighting for their lives against the mighty but crumbling Kingdom of Spain. It was very much in Dutch interests to have their peculiar little country, with no king and no central government beyond war-making, to be treated as equal to Spain and France. It still is; Article 90 of the Dutch constitution requires the government “to promote the development of the international legal

order.”



2Convention mechanisms

Source: List of conventions published by the Council of Europe Treaty Office (http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG) consulted 13/10/2014. I omitted the organisation's Statute, also the standard informational and archival duties of the Secretary-General and the amending and inviting powers of the Committee of Ministers. Protocols were counted if they extended the scope of an existing mechanism. Obsolete conventions were included as I couldn't readily identify them. A better measure, if I had the time, would be the proportion of currently active freestanding conventions, or complexes of conventions and protocols, possessing a mechanism. The final ratio would be similar.



3The 1997 Lisbon Convention on the Recognition of Qualifications concerning Higher Education in the European Region, CETS 165. This replaced four earlier Council of Europe conventions, augmented by a few recommendations, an unsystematic, static and confusing mess: CETS 15, 21, 32, and 135, plus a Unesco regional convention of 1979. These were grandfathered out, and we added provisions of procedural fairness – and a monitoring committee.