upton-on-line
20th May 2004
In this edition - a
long edition, not all of which (for those brought up to eat
everything on their plate) is compulsory!
Europe at 25 members; the lethargy of French
euro-MPs; civil baptism for republican believers; and
(for seriously thoughtful subscribers) more treatyology in
liberal clothes from Andrew Sharp.
There were 25 in the bed and the little one said...
At midnight on 1st May, the European Union became bigger,
slightly poorer per capita and much more complicated. Ten
members became 25; 380 million people became 455 million
(compare that with a US population of 286 million); GNP per
capita slipped from €24,010 to €21,910; the average cost of
labour fell from €22.21 to €19.09 per hour (but still
remained ahead of the US at €17,80) while the overall rate of
unemployment rose from 8% to 9%. The population became a little
younger and a little more rural - but not much. It also became
slightly more Roman Catholic. And the number of official
languages jumped from 11 to 20.
Such is the aggregate picture of EU enlargement from 15 to 25
member states. Europeans seem undecided about how to view this
event. In part that reflects the fact that the practical
adhesion of these member states has already taken place - no
magic light switch was flicked on at midnight. In part it
reflects the fact that the constitutional relations between the
members haven't been settled yet. And in part it reflects a
widespread sense by Europeans that whatever they are part of, it
is not dynamic and purposeful. There is lukewarm ownership of a
process that everyone accepts as irreversible. Forthcoming
events - European elections, attempts to nail down a
constitution and the appointment of a new Commission - will be
crucial to whether this sprawling enterprise can win real
allegiance from its citizens and inspire real leadership from
its leaders.
But even if it can, what sort of enterprise will it be? One
thing it will not be is the super state that British Tories
ritually burn on rhetorical bonfires. There are just too many
states at the table. What started as 6 states in 1958 that could
reasonably have imagined working steadily towards a union has
now grown to 25 states and will expand further to 27 states in
2007 when Romania and Bulgaria are due to join. Neither will it
be a federal state, one in which powers are shared between the
national and supra-national level. The knock-down, drag out
business of Giscard d'Estaing's constitutional
convention saw to that. States wanted to hang on to most of the
power.
Euro-blockage and Euro-babel
So at best (or worst depending on your degree of europhilia/phobia)
Europeans can hope for some extension of decision-making by
qualified majority in the Councils of Ministers that effectively
sign off on proposals by the European Commission. Giscard's
proposal was for decisions taken by a majority of states who
must also represent at least 60% of the population of the Union.
But even then, the really important issues like tax and foreign
policy can be vetoed by a single member state. While Europe has
732 Euro-MPs, the membership of lower houses alone in the 25
member states totals some 6,328 MPs all of whom are jealous
guardians of national interests. There is no shortage of
democratic road blocks in the way of an over-bearing centre.
Of course it remains a moot point whether even Giscard's
handiwork will see the light of day. With Tony Blair
announcing a referendum as the prerequisite for Britain's
sign-up and pressure growing on other leaders for the same, the
whole thing could get completely bogged down. In which case all
manner of ad-hocery can be expected to try to operationalise the
most complicated inter-governmental encounter group ever
envisaged.
One suspects that even the ardent founders like Monnet and
Schumann would have blanched in the face of a translation
and interpretation challenge of the order that Brussels now
faces. There is, needless to say, something of a shortage of
Maltese interpreters who can break casually into Estonian, or
Greek linguists who have grown up thinking aloud in Czech for
the hell of it. The tradition in the Council of Europe (and in
the Ministerial Councils) is that leaders speak in their native
tongue even if they want (as many privately do) to use their
second best language - English - so they can make direct
contact. Many official level meetings stick to English, German
and French but, depending on the subject matter and the
attendance, more languages may be required.
Upton-on-line attended a seminar in a shiny new Brussels
conference room recently and came face to face with the physical
reality of what accommodating Babel has meant in architectural
terms: meeting rooms are now cigar shaped. Delegates line up on
two sides of a very slender ellipse. This is very bad for necks
since, unless you want to stare at one or two faces directly
opposite, more of the meeting is spent with one's head turned at
90 degrees left or right to pick up the face of someone at the
other end of the 'cigar'. The reason for the shape? It's the
best way to fit all those translation booths that sit behind the
narrow rows of seats like sound-proofed corporate boxes.
The costs of this are not negligible. Interpretation costs
alone will rise from €105 to €140 million euros. More
staggering is the cost of document translation which rises from
€550 million to over €800 million. "Only a couple of
euros per year per inhabitant" say the defenders of
linguistic sovereignty. In short, if you're good at European
languages and have experience in thinking simultaneously about
tractor tire specifications, fishing quotas and regional
development in Polish and Portuguese, Brussels is the place for
you.
Needless to say a tidal wave of hopefuls from the new entrant
countries are beating a path to the Commission's portals.
Enlargement is expected to push the number of employees
connected with EU institutions up from around 40,000 to 60,000
of whom a significant percentage will be from the new member
countries. When salaries in the Commission can be up to 20 times
the salaries offered in places like Warsaw or Budapest, the
incentives aren't hard to understand. The impact of language
isn't limited to the Commission itself. The EU has long run
schools for the children of eurocrats who are entitled to be
educated in their mother tongues. There are currently twelve
such schools dotted around Europe but the number will have to be
increased.
Plucky little Malta
If 'welcoming' 10 new countries is a strain for the Brussels
bureaucracy, imagine what it's like for the bureaucracies of
some of the smaller new entrants. There has been much amused
commentary on the plight of tiny Malta. Malta is the one of the
most densely populated country on earth. That's because there
are only 316 square kilometres to come and go on. To make this
hemispherically comprehensible for New Zealanders, that's half
the size of Singapore which means it would fit inside Lake Taupo
twice over. With only 400,000 people Malta is somewhat stretched
coming to terms with Brussels' demands. It's a bit like asking
the Westland Regional Council to adopt New York's planning
ordinances. Needless to say there have had to be all sorts of
dispensations. All sorts of rules and regulations remain to be
translated into Maltese. And some will never have to be
translated because Malta extracted all sorts of concessions in
its entry negotiations - 77 to be precise. These range from
retaining the right to shoot quail to a special protocol
guaranteeing that Europe will never be able to force Malta to
liberalise its abortion laws.
For those who fear a stifling regulatory super-state, it is
these sorts of derogations that have already signalled that that
game is up. A Europe of 25 states is a place of irreducible
diversity. And it's that mixture of shared history but diverse
cultural tradition that is the most attractive side of this
experiment. Europeans revel in the quirkiness of the differences
they unite within a territory a little under half the size of
the United States. The scars of past conflicts have been
transformed into quaint customs or exuberantly celebrated
traditions. A tidal wave of this stuff has been aired in the
press in recent weeks. Amongst other morsels, upton-on-line has
learned that Hungarians haven't said 'cheers' over a beer since
1849 when the Austrians raised a toast (in beer) to the
execution of 13 Hungarian generals, while the Latvian idea of a
racy weekend revolves around collecting mushrooms in the woods.
Beer and mushrooms are easy to accommodate. Deeper - and some
might say more important things - are a little more difficult.
Like religion, tax and defence. Europe is a continent whose
entire political and cultural evolution has been played out
against the backdrop of struggles between Christianity and
Islam, and with Christianity itself. So often it is momentous
religious debates that have defined turning points in political
definition. Hungary dates itself from 1000 AD and the reign of Saint
Stephen. Modern Czech identity goes back to the famous
Prague defenestration in which Protestant nobles threw the
Hapsburg Governors out of a window into a dung heap, in the
process starting the Thirty Years War. Both Malta and Cyprus
were outposts of Christendom overrun for centuries at a time by
Islamic rulers. No surprise then, that significant elements
within Europe are cool to hostile about Turkish adhesion -
something that has been on the cards since 1963 when the first
special relationship with Turkey was signed. 41 years later the
Turks are still waiting to commence formal entry negotiations
while Christian parties muse more or less openly about the
incompatibility of Islamic Turkey joining the club - even though
Europe cannot bring itself to make any mention of its Christian
heritage notwithstanding the ardent wishes of Catholic countries
such as Poland and Spain.
Tax is another no-go zone. The only countries seeking tax
harmonisation are the ageing elephants of European integration -
France and Germany who feel distinctly threatened by the arrival
of a whole gaggle of upwardly mobile new countries who think
corporate tax rates of 40% or more are daft. Countries like
Estonia are adamant that they are going to use low rates of tax
to attract business and if that's at the expense of old
sclerotic economies, then tant pis!
The security front is just as complicated although the
pressure points are somewhat different. If Turkey is too
radioactive religiously, it is a respected member of NATO and,
since its difficulties with America over Iraq, probably doubly
respected in the deeper recesses of the 'old continent'. 'Old'
and 'new' members states exhibit differing degrees of love/hate
with the US. That in itself makes any sort of coherent EU
foreign policy hugely difficult. Whereas America has a single
permanent seat on the Security Council, the EU has two, France
and Britain, which effectively cancel each other out. Those who
want to act as a counterweight to America are balanced by those
who believe all that common heritage and all those shared values
should make Europe and America co-extensive on the world stage.
After Iraq it doesn't look as though the latter outcome is very
likely.
Peaceful complexity within, complex passivity without
Which leaves a perennial problem for Europe at the
geo-strategic level. How can one of the richest - and in human
terms one of the most creative - places on the face of the earth
stay that way if it cannot assert its interests coherently on
the world stage. While the US and China prosecute their national
interests at the level of the planet, Europe looks more and more
like a deluxe jigsaw puzzle still in the process of assemblage
and with only the outer border and a few of the easy bits filled
in. It's not even clear that there's a picture to work from.
After all, you have running simultaneously the EU (now 25
countries), NATO (most but not all - viz. Austria, Ireland and
Sweden), the Schengen Agreement countries (again most but not
including Ireland, Britain and the newcomers) and the Euro Zone
countries (count out Britain, Denmark and Sweden). 'Variable
geometry', one of those marvellous inventions of
diplomatic-speak, has never been given such elaborate treatment.
Where will it end? No-one knows - timeframes in Europe are
infinitely extensible. After all, it effectively took until 1989
to finish with the second world war. The model of a tight
Franco-German dominated entity has all but evaporated, this to
the evident distaste of the political elite in Paris who started
the whole thing off. Opinion polls and street-side interviews in
the entrant countries reveal that most people like the idea of
joining the club for very humdrum reasons - the prospect of
better study opportunities, better jobs and easier travel.
Before anyone belittles those ambitions it is worth recalling
the realisation that Jean Monnet came to in the dark
years of the Second World War, that "there will not be
peace in Europe if its states reconstitute themselves on a basis
of national sovereignty with all that entrains in terms of
policy, prestige and economic protection." Monnet would
have approved of a civil environment in which better jobs,
travel and study had become popular ambitions. He never doubted
that what he set in motion would lead in time to a United States
of Europe although, as he said in his Mémoires (1976),
"I can't begin to imagine it in the current [i.e.
mid-1970s] political setting, so imprecise are the words over
which people are locked in dispute: confederation or
federation..."
More than a quarter of a century on, the dispute continues
and a United States of Europe is no closer. The result is that
the most ambitious and complicated economic and administrative
integration proceeds apace but the world still has no idea when
or even how Europe might assert itself in a truly geo-political
sense. It remains a continent absorbed by the complexity of what
it has set in motion. Even when members states agree on rules,
they can't rely on one another to observe them. France and
Germany, for instance, have strained the fiscal stability pact
almost beyond recognition by permitting themselves budget
deficits way outside the rules. For the countries around the
Council table, it is less a case of rolling over when the little
one says, as making sure you don't get rolled on by a big
country that has decided to change the rules. Meanwhile, for
little countries like New Zealand outside the doors, 25 members
will just make it that much harder to gain anybody's attention
for long enough to have their interests noticed.
Making the rules to suit
For a country that rightly regards itself as having been the
inspiration and driving force for Europe, France is
understandably worried about losing control of the bridge. A
recent report by French MPs catalogues an alarming loss in
French influence both in terms of the use of the French language
and the control of key posts. In the course of this report some
fascinating facts emerged on the extent of French engagement -
or disengagement. It emerges that France is the second worst
backslider when it comes to implementing community laws and
directives. 135 infractions were being pursued by Brussels
against France as of October last year - a total topped only by
Italy's 146. Needless to say the dour Nordics emerge as the
goody-two-shoes of the team. Whether breaking the rules
signifies French disillusionment or is a tactic to overcome its
on-going dilution at the hands of new entrants is unclear.
Whatever the case, it's not a tactic that consumes much
energy. The same report reveals that the rate of French
absenteeism at the EU Parliament in Strasbourg and at
Ministerial Councils in Brussels is around 20%. This may explain
the other dog-box statistic in the report - a comparison of the
number of reports generated by national teams of Euro-MPs.
Heading the productivity stakes were the industrious Dutch
(surprise!). A mere 31 Dutch Euro-MPs generated 107 reports. The
much larger French contingent of 87 MPs only managed a paltry
119 reports or 1.36 reports per MP as against 3.45 per for those
Calvinist Dutch.
Upton-on-line was mildly surprised by the reductionist, self-flagellatory
tone of the report's French authors. After all, when has
quantity ever mattered in linguistic affairs? One shudders to
imagine the readability of reports produced by a team of
fiercely pragmatic low-landers. A single report in the immortal
language of Racine and Molière would surely sweep
the field? The day the French start measuring their contribution
by comparing themselves with Dutch report-writing prowess you
know the game must be nearly up.
Making little republicans
From the nanny state to the nursery state. Upton-on-line has
learned from the pages of the City of Paris' quarterly magazine
(or propaganda sheet as some would characterise it) that
so-called 'civil baptisms' are on the up. Where else but in
France would local Councils provide secular baptismal services
in the name of republican virtue? They have absolutely no legal
significance but, no doubt in response to the perceived
floodtide of Islamic fundamentalism, a growing number of right
(or is it left) thinking young atheists are turning up at
Council rooms all over France to have some local functionary
intone republican sentiments to family groupings.
What the new little republicans make of it all is hard to
say. But parents and sponsors (ersatz Godparents) apparently get
a heightened sense of citizenship akin to the sort of frisson of
excitement we all get casting our votes in local body elections
in New Zealand. In what amounts to a pastiche of a christening
service, the sponsors solemnly undertake to look after the
infant in case of the incapacity or decease of the parents. This
too has no legal significance - you have to consult a notary if
you want a piece of paper that means something. But if it's just
the piece of paper you're after, the Mairie (city
administration) will provide a nice certificate in the colours
of the French State. It's cool, it's chic. It also involves a
direct link with the heady, anti-clerical climate of the worst
months of the French Revolution. Provision for such secular
frolics can be traced to a decree of 20th prairal, year 2
(otherwise recorded as 8th June, 1794 by the rest of God-fearing
Europe). This was the height of the Terror. The guillotine had
been working overtime throughout the spring and would, a month
or so later, consume Robespierre and fellow members of
the Committee for Public Safety. What better way to steep one's
offspring in the blood and sacrifice of the Republic than a
civil baptism?
Reparations for loss of autonomy
Upton-on-line has previously drawn attention to the
thoughtful contributions of Andrew Sharp, Professor of
Political Studies at Auckland University and one of a small band
of New Zealand academics who courageously plug on in the belief
that New Zealand's constitutional and treatyological debates are
not only comprehensible but capable of explanation in terms of
perfectly mainstream theories of political association in the
western tradition. Some of Sharp's recent work-in-progress
recently came the way of upton-on-line and (as with everything
Sharp writes) deserves further study.
Sharp was writing in the wake of the extraordinary
galvanising effect of Dr Don Brash's recent call for
equality under the law and an end to special treaty rights.
Sharp starts from the notion of justice, rights and the role of
government as an agent for ensuring that rights are respected
and enforceable. As Sharp notes, "where argument is needed
to show what is just, then simple appeals to justice are in
trouble." On this basis, respect for property rights is
pretty easy to demonstrate without too much argument and hence
it is unsurprising that the overwhelming majority of New
Zealanders have no difficulties with reparations for land
improperly acquired from Maori in breach of undertakings made
under the Treaty of Waitangi.
The difficulties start when other sorts of rights are claimed
- such as the right to autonomy. As Sharp notes, a right to
autonomy can be claimed not just by individuals but by peoples.
In both cases, the ability to act autonomously depends on
material power. If you don't have certain basic goods, you can't
express your autonomy. Here lies the familiar basis for claims
to resources as a claim of right to secure social justice.
Western societies have had difficulty enough with the boundaries
of this sort of rights-talk when applied to individuals - it
underlies one whole strand of the left-right debate over
redistribution and the provision of social services. If this is
an area where societies like ours have stumbled in the face of
"simple appeals to justice", one can only observe that
adding in redistributive claims on the basis of group rights
(the rights of 'peoples') to autonomy increases the difficulties
by an order of magnitude.
Assuming for a moment that the idea of rights being held by
peoples is coherent (and this is a notion rooted in European
thought that goes back to the German romantics), Sharp then
boldly asks what sort of groups of Maori might be held to be
able to claim a right to autonomy. He posits three types of
Maori groupings: whakapapa or kin groups (those whose membership
is rooted in hereditary kinship and custom); voluntary
associations (individuals who have chosen to join together for
their mutual benefit); and Maori as a whole, conceived either as
an ethnic group or a race.
At the third level - Maori as a whole - Sharp notes that it
is difficult to see how such a 'group' could exercise autonomy
"except as a result of state-imposed institutions. This is
an autonomy that is constructed from the outside, and
empirically and necessarily so because there are no principles
of association internal to such a Maori grouping. Maori as a
whole are neither a whakapapa group nor a voluntary association,
capable at least in principle, of action. In this respect they
are like Pakeha, or any other ethnic or racial group."
(Upton-on-line would have thought that such an arrangement could
be negotiated rather than just state-imposed. Whether the state
would be permitted to commence such a negotiation by voters is,
of course, another matter.)
Does the Treaty demand recognition of Maori autonomy at any
or all of these levels through the creation of the sort of
separate institutions we're familiar with (Maori seats, Maori
service providers etc)? On this question Sharp is - well, sharp:
"It is often said that this route of attaining Maori
autonomy by way of law is a requirement of the Treaty of
Waitangi, and that it is this intimation that governments have
been following since 1975, sometimes in the name of
bi-culturalism. Here I get tongue-tied and have no easy slogan
to peddle. I have no respect at all for the Treaty insofar as it
is an impediment to understanding. Of course I must recognise
that it is now embedded in much law, and the law must be
respected - though whether for good or evil, or to the promotion
of justice or injustice I am not sure. Still, I have some
respect for the Treaty when it is interpreted as a symbol of the
commitment of Maori and the state to live together; and I have
total respect for its power as part of the effectual truth of
things in current New Zealand discourse. It rules in many
hearts; and the power of opinion is the greatest power in any
society."
"Due deference paid, the trouble with argument from the
Treaty is that it is argument cast in terms of justice and
injustice, rights and duties, and autonomies. Such argument is
splendid when there is settled agreement as to who has what
rights and properties. But it is not very productive when
substantive issues of rights and justice and autonomy are
precisely at issue, when people claim things as their due when
other people do not think that to be the case ... The arguments
we should be having are indeed about justice and autonomy. But
the Treaty does not help, in ways too familiar to need
rehearsing. It says different things in its two languages. It is
too vague. It can, it is true, be made to set the parameters for
argument, and it has been drawn into law for current
reinterpretation with comparative ease. But this is to allow the
issues at stake to be decided by lawyers and judges, and not the
plain man and woman in the street..."
All of this strikes upton-on-line as making good sense. The
Treaty has been asked to carry a load for which it was never
designed. And when you start to talk about reparations for loss
of autonomy under the Treaty things get rapidly worse. As Sharp
continues:
"Yet if the current policy of treaty settlement were to
be assessed critically as one of justice in reparation, it would
be found to be breathtakingly foolish and inadequate. Even if
Maori and Pakeha (then and now) agreed on standards of right and
wrong, justice and injustice, the lapse of time and the
impossibility of imagining counterfactual histories which would
provide a benchmark for current reparation would render the task
hopeless ... it is enough to say here that what we are now
coming to call 'restorative justice' because of the very
vagueness of that concept, must be seen and defended simply as a
symbolic recognition of the damage that colonisation did to
Maori."
To which upton-on-line would add two distinctly unfashionable
observations; firstly, that the 'damage of colonisation' cannot
be focused on to the exclusion of any benefits of colonisation
(unless we maintain that there were none and/or unless we
maintain that a plausible counterfactual would not have involved
any colonisation of any sort). And secondly, that that damage
was done by a colonising power that is NOT interchangeable with
the descendants of the settlers who did the damage. Current
recriminations are levelled against the successor state to the
one that went to war with Maori. That successor state has been
remarkably successful and stable. Putting its continuation in
question is something to be approached with the greatest
caution.
As Sharp notes, claims for special treatment of Maori can be
made without recourse to the Treaty. They can arise in two ways:
on the basis of their needs and on the basis of the needs of the
state. The first ground is unexceptional - it is the classic
basis for social provision in the liberal state. But under the
'needs of the state' Sharp adduces a rationale for special
'group' treatment - the fact that, as he puts it, "the
state needs organisations to help it run, and run well."
Here's the proposed test:
"In normal liberal thought the test is roughly that a
right should exist if the interest of those in that right's
existing is of such weight as to justify burdening others with
duties of forbearance or supply. In deciding, one looks at the
consequences of the right's existing or not. And this should be
the test as to the rights and autonomies of Maori organisations,
as it is of all other organisations. I will not do a calculus,
but I am pretty sure that many Maori organisations would pass
such a test for special rights. they are in various
combinations, service organisations, organisations for profit,
organisations for work, recreation, religion, consolation,
discussion and education. Why should they not be sustained in
the way other useful organisations are sustained."
It's a neat manoeuvre. But what if, as a matter of political
philosophy, a government says (and this happens from time to
time) that it doesn't believe in state support for many of these
"useful organisations" whether they are Maori or
non-Maori. Such a government might argue that the state no more
'needs' such organisations than it needs citizens who obey laws
or businesses who create jobs and wealth. In other words, such
organisations are free to flourish but they can't claim access
to the State's monopoly power to tax to help them do so. It all
depends on how much you believe the flourishing of
non-governmental organisations is a concern of governments. We
are back in contemporary liberal discourse - and that is not
where increasing claims for Maori autonomy are rooted.
Upton-on-line does not believe Sharp's liberal formula for
attempting to found institutions reflecting Maori group rights
will be found satisfying, for all its generosity and good faith.
There will be Maori who insist on a right to autonomy that owes
nothing to the needs of the liberal state; their right, they
will assert, pre-dates that state and is independent of it. On
the other hand there will be others who deny any such right
whether defined by reference to the state or not. The trouble is
that there are deeply contested views about what sort of group
autonomies are defensible given the circumstances of our
history.
For those eager to assert a right to group autonomy,
Upton-on-line would suggest that a useful starting point might
be to appropriate and modify Sharp's test for the value of such
a right by asking if the existence of that autonomy is of such
value to the community as a whole as to justify burdening others
with duties of forbearance or supply. If those claims are light
and enjoy a high level of consensus they will make for political
peace and prosperity. If those claims are onerous and divisive,
they will make for growing antagonism and, in the long-run, the
fraying of the social and political fabric. That looks
increasingly to be the path we are on.
The challenge to all players is to propose a model of New
Zealand that is sustainable, positive and a source of forward
momentum for all. It is clear that a growing accretion of
Treaty-based legal hooks is not sustainable. But given the
strength of the historical shadow - Andrew Sharp's
"effectual truth of things in current New Zealand
discourse" - it is equally clear that a simplistic,
abstract and a-historical assertion of liberal equality before
the law will not run either. A conservative nose applied to this
problem would seek to locate those attributes of Maori identity
that really matter and see that they are in some way actively
sustained. That requires more than bland assertions about the
uniqueness and importance of Maori culture to New Zealand. And
identifying those attributes will owe nothing to abstract theory
and everything to a sustained human engagement with what
animates the minds of those many New Zealanders who want both to
celebrate NZ and feel secure in their Maoriness. Upton-on-line
wonders just how many people are engaged in that exercise. Are
there any conservatives left?
Andrew Sharp's comments were made in a presentation to the
Treasury in February this year. The may be found on the NZ
Treasury's website: www.treasury.govt.nz
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