Reflections on European Democracy

Reacting to the criticism raised by myself and others on the result of the Polish elections and cabinet formation, some people wondered why this should be of any concern to us non-citizens and non-residents. Here are my considerations:

1. Universal values are at stake
2. We are in the same boat together
3. Poland could be committing a breach of contract

Universal values are at stake

I am not a subjectivist, although I am not a total objectivist either. So I do believe that at least some universal moral principles exist, but I recognise that with all the differences in culture, history and (as a consequence) terminology and ideas it can be difficult to identify them and spell out what they entail. In Europe and within the European Union, however, it should be possible to get a long way towards formulating common values which are fundamental to European societies. And the point with universal values is that not only do they apply to all, they are also a concern to all.

When looking for universal, or at least European, values, we will probably find that the most fundamental of these are closely related to, or rooted in, the Christian principle of agapè, which has found its way into modern conceptions like individual sovereignty and rights, self-fulfillment, democracy, and non-interference by the state. The basic idea, I think, is that every individual has value and deserves respect and recognition as an individual with moral capabilities and a right to exist. This principle precedes any disagreement we might have with the person concerned on the choices he makes or the acts he commits. And yes, issues like discrimination and gay marriage fall under this principle, because they are basically about recognising people as individuals in their own right.

It also seems to me that rants against any person or group for the fact that they exist are a violation of agapè-related principles. This is the more true in an unequal power relationship, i.e. the more the person or institutions who do the ranting represent the majority of society or have influence that affects the lives of those ranted against. Political, religious and opinion leaders with influence especially have a responsibility to show restraint, more so than regular Joe indulging in pub-talk – without wanting to exonerate him from his responsibility on a more local level: it is all about context.

Context, and the agapè-related principle of putting the weakest party first, is also what should rule so-called free speech issues like this one brought up by the beatroot. Actually, I don’t think freedom of speech is very useful as a moral principle at all – “freedom of dialogue” perhaps would be a better term, though I am open to suggestions. The idea is that public (political) speech without the intention to communicate, i.e. which does not depart from the opponent’s value as an individual, is not that worthy of protection, especially when the speaker is in a stronger societal position than the person or group he is talking about. Which is one reason why I am more sympathetic of applying “free speech” to parades claiming gay rights than to MEPs comparing women having abortions to Nazis.

We are in the same boat together

Poland is, just like my own home country, a member of the European Union. Polish citizens vote for the same European Parliament as I do. Their representatives there, and their ministers in the Council, vote and negotiate on the same laws as my ministers in the Council and my representatives in the European Parliament. The laws they adopt together apply to Poles as well as to me. Therefore, whether Poland’s government consists of bigoted idiots or of social progressives makes a difference for my own life as well. Methinks that should be enough reason for me to have an opinion on the outcome of the Polish elections.

Note also that I do not believe in the atomist conception of democracy as a mere summation of separate, individual votes (implying that Poles vote like they want, I vote like I want, and the summation of all this says what we want together). Counting the votes is only the last step of the democratic process. Much more fundamentally, democracy is not about voting, but about deliberation and mutual recognition: it is common decision-making, with the emphasis on ‘common’.

And yes, although we should always respect the unwelcome outcome of an orderly election and look at our own lack of cogency as the cause, voters can most definitely be wrong, misguided or stupid. Just because your side lost in the vote this does not mean you have to swallow your opinion.

Poland could be committing a breach of contract

Then, there is the point of what Poland signed up to when becoming a member of the EU. If the new government now decides that it does not like what EU legislation (the so-called acquis communautaire), the Accession Treaty and the Treaty of Nice say on fundamental rights then that is fine – but in that case they should opt to leave the EU again. It was, after all, a take-it-or-leave-it package deal.

Not that the law is infallible of course. The law does not coincide with nor is it a subset of morality, though it is an input to moral considerations. In other words: even if Poland is not breaking the law, it could still be wrong. But if it does break the law, this could be a reason to kick it out of the European Union. Note that the latter is not a necessity: as a pragmatist, I would say that the morality of the end result counts. So if threatening to kick out Poland helps to force its political leadership to stop undermining the position of minorities, threatening Poland may be a good idea. But if it has the reverse effect because the population rallies behind its current leaders, a different strategy should apply.

So what does the law say?

First of all, before the new member states were admitted as members of the EU, they were required to fulfill the Copenhagen criteria formulated by the 1993 summit of government leaders (European Council) in Copenhagen. They say:

Membership criteria require that the candidate country must have achieved:

• stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
• the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union;
• the ability to take on the obligations of membership including adherence to the aims of political, economic & monetary union.

“Human rights” in this context means human rights as formulated in the Universal Declaration of Human Rights (UDHR) of the UN, the European Convention on Human Rights (ECHR) and its thirteen Protocols (listed here) of the Council of Europe (not to be confused with the Charter of Fundamental Rights of the EU that was also included in the text of the European Constitution), and of course, the human rights paragraphs in the EU treaties themselves (see below).

The UDHR and the ECHR include the usual stuff, like the prohibition of torture and the right to a fair trial (CIA camps, anyone?). There is (art. 14 ECHR) also the prohibition of discrimination on all kinds of grounds, although some of these (including sexual orientation) apply only if they are guaranteed by national (or other, e.g. EU) law. Interestingly, the European Court of Human Rights in Strasbourg has (so far?) rejected calls to apply the right to marry (art. 12 ECHR) to gays and lesbians, but it has ruled it applies to transsexuals (defined according to their new gender).

There is also article 17 on the abuse of rights, which not only limits the use of free speech (for instance for holocaust deniers) but also basically tells Mr Kaczynski that there is no way back once a fundamental right has been established:

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Another interesting article is number 8 on the right to a private and family life, which has been interpreted by the Court as meaning that it is illegal to prohibit committing consensual homosexual acts in private.

Then there are Protocols 6 and 13 prohibiting the death penalty, both signed by Poland.

Next, there is article 6 of the Treaty on European Union (TEU), which sub 1 and 2 firmly establishes the EU as a Union of values, and which incorporates the ECHR human rights into EU law:

1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

Note how indent 1 outlines broad principles fundamental to both the Union and the member states in everything they do, whereas indent 2 lists more specific principles underpinning the laws made by the EU. That the fundamental principles of article 6(1) are taken seriously is proved by the fact that breaching article 6(1) is the only ground on which a member state can, eventually, be kicked out of the European Union (article 7).

Additionally, the Treaty on European Community in article 13 singles out discrimination as something so bad that it apparently warrants Community action. The article specifically includes discrimination on the basis of sexual orientation:

1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

As you see, article 13 requires unanimity in the Council, meaning that the new Polish government would in principle be able to block new EU legislation in this field. On the other hand, EU legislation and programmes based on article 13 that already exist now apply in Poland as well thanks to its signature under the accession treaty (article 2). This would include for instance Directive 2000/78/EC which prohibits employment-related discrimination on any grounds, including sexual orientation.

The human rights and rule of law requirements in the Copenhagen criteria have led to substantial reform in the ten accession countries, and still continue to do so in the (probable) future member states Bulgaria, Romania, Croatia and Turkey. Examples include the abolishment of discriminating laws and law clauses that still existed in many of the new member states, and programmes to help change discriminating policies and attitudes of state officials. But writing new laws is one thing, implementing and enforcing them is of course another. And as we have seen in Poland, it takes even more time and effort to change attitudes and ancient habits – a process that is not helped in any way when a government is in power that does not even want those changes.

Moreover, the Copenhagen criteria were political criteria, in the sense that the decision they had been fulfilled was made by politicians (i.c. government leaders), not judges. Rigging, therefore, was easy, and it is clear that in 2004, the political importance of having the ten countries join all at the same time had precedence over the desire to apply the criteria to the letter. This becomes clear from the fact that reports by human rights NGOs and even the Commission (for whoever cared to read more than just the summaries) on the situation “on the ground” remained critical. It also becomes clear from the fact that government leaders allowed Poland to attach a rather dodgy Declaration to the accession treaty, which reads:

Declaration by the Government of the Republic of Poland concerning public morality

The Government of the Republic of Poland understands that nothing in the provisions of the Treaty on European Union, of the Treaties establishing the European Communities and the provisions of treaties amending or supplementing those treaties prevents the Polish State in regulating questions of moral significance, as well as those related to the protection of human life.

Fortunately, “public morality” is generally (and certainly by human rights judges) understood rather limitedly, and the Polish declaration is clearly meant as a safeguard against legal abortion and (possibly) euthanasia. Moreover, a unilateral declaration by the Polish government does not prejudge in any legal way the contents of the European and human rights treaties and laws. But it does show where government leaders stood with their ambition level at the time they concluded the Accession Treaty. An assessment of the wisdom of that choice is beyond the scope of this blog posting (meaning that I am prepared to give it the benefit of the doubt as I haven’t entirely made up my mind about it). But as the new Polish government seems intent on moving things backward again, there seems every reason to keep a close eye on it.

This entry was posted on Sunday, 27 November 2005 at 01:48 and is filed under European Politics, Philosophy. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.