Failing – Again – To Bridge the Domestic Accountability Gap

A critical assessment of the new EU Constitutional Treaty

By
Sunrise on the Douro Portugal
Failing – Again – To Bridge the Domestic Accountability Gap : A critical assessment of the new EU Constitutional Treaty - Stelios Stavridis & Anna Vallianatou

Abstract

The main purpose of the new Treaty establishing a Constitution for Europe was to produce a more efficient and more democratic decision-making process for an enlarged European Union (EU). This article argues that the new arrangements have added no real progress towards a more democratic Common Foreign and Security Policy and European Security and Defense Policy. It also claims that a number of practical suggestions for bridging that particular democratic gap have not been included, and that the new defense dimension adds yet another democratic deficit to the EU. All these developments sadly confirm the view that the question of the democratization of the EU's foreign, security, and defense policies does not top the current political agenda.

Introduction

The purpose of the Convention on the Future of Europe, and that of its subsequent Treaty establishing a Constitution for Europe, was to produce a more efficient and more democratic decision-making process for an enlarged EU. This article argues that, as far as foreign and defense policy is concerned, there has been no real democratization. Current and planned accountability mechanisms amount to yet another democratic deficit for the EU. It is also argued that, despite the existence of a number of practical suggestions for bridging that gap, the new arrangements have failed to incorporate any of them. Such a development confirms the fact that the question of democratic accountability in the international relations of the EU has yet to emerge as a serious preoccupation in the minds of its decision­makers and shapers.

In other words, this paper considers whether the new arrangements will deliver a more democratic Common Foreign Security (CFSP)/European Security and Defense Policy (ESDP)2 decision-making process. It does not consider the wider questions of whether the Draft Treaty establishing a Constitution for Europe is good or whether it will be ratified. It is our assertion that, following the creation of new posts, bodies, and instruments,3 there is no guarantee that a successful European voice in the world will emerge. More importantly for this study, we will argue that the fact that there has been no democratization in the EU's foreign, security, and defense policies represents a missed opportunity for more democracy in the second pillar of the Union. We particularly lament the fact that, despite the make-up of the Convention (including many parliamentarians), so little progress could be noted on parliamentary accountability in the CFSP/ ESDP fields. So rather than "one cheer for democracy,"4 it seems that in reality "the mechanisms for accountability in the area of foreign action... remain almost the same."5

This paper consists of three parts. The first part puts the question of democratic accountability in foreign, security and defense policies in its wider theoretical and empirical context. The second part presents a number of formal and informal proposals for reform, some of which were presented officially in two of the Convention Working Groups (External Action and Defense6), but which were not included in the Draft Treaty presented by Valery Giscard d'Estrung in the summer of 2003.7 This part also assesses the relevant articles of the 2004 Constitutional Treaty. It concludes that there has been very little progress towards a more democratic CFSP/ ESDP. The final part sums up the findings of this article, regrettably noting that, once again, the democratization of the EU's foreign, security, and defense policies does not top the current political agenda.

The Wider Context

What follows offers an overview of the current situation of democratic (read parliamentary8) accountability on foreign and defense matters in EU member states and institutions. First, we need to mention, however briefly, that foreign, security, and defense policies fall within the wider category of public policy. In democratic states or democratic unions (such as the EU), the principle of democratic accountability is therefore fundamental. The question of the democratic deficits in the EU has been well documented, although very little attention has been paid to the CFSP, let alone the emerging ESDP.

The national parliaments of EU member states have some powers of accountability, especially on issues dealing with internal EU matters (the "model" here being the Danish Folketing). But in CFSP matters, it is the national governments that maintain traditional executive dominance, a situation that is often helped by the existence of a clear governmental majority in parliament.9 Thus, the integration process in Europe appears to strengthen the "parliamentary decline" thesis.10 In a recent comparative study of national EU foreign policies, out of fifteen EU member states, only four contributors mentioned explicitly (and often succinctly) the question of parliamentary accountability. More importantly, even they did so only to stress their "limited role," a "rather ineffective" and "very modest policy influence" in EU foreign and defense policy. The above citations refer respectively to the French, British, and Irish cases.11 Only Denmark appeared to come out more positively, but it remains the exception rather than the rule.12 It is worthwhile to point out the fact that, in all the remaining cases, there was no mention whatsoever of a parliamentary input. As for the not-so-flattering comments on the three cases mentioned above, they do confirm our pessimistic assessment of the current absence of democratic accountability in EU states.

One should note that even if the individual EU national parliaments were to possess more powers, there would still be a democratic deficit at the EU level if the European Parliament (EP) was not given more powers as well. This is because making individual ministers (or heads of state/government) accountable does not automatically make them collectively accountable to a transnational parliament. Therefore we now turn, again very succinctly, to the EU level. The current accountability mechanisms that the EP possesses are powers of information, not real powers of control. The EP is only allowed to play a marginal role in the formulation, let alone the implementation, of the CFSP. The EP does, however, possess some limited means of control in international trade, commerce, and aid policies (mainly budgetary powers), even if this is not the case in foreign policy per se.

The EP can do the following: debate foreign policy matters; issue declarations, reports, and other rhetorical statements on international relations; organize "hearings" of EU figures and other experts; and pass "resolutions" and "recommendations" on almost any international issue. Despite this number of instruments at its disposal, the EP remains peripheral to the CFSP. Indeed, the European Councils decides, and the EP usually reacts post facto with very little chance (or hope) of modifying any important foreign policy decision that has already been taken.

There is, in addition, very little accountability in defense matters at the national level. In most cases, the executive retains almost absolute control, especially over issues of arms exports, intelligence, or nuclear policy. Furthermore, the whole picture becomes even more confused because of the existence of NATO with its own parliamentary assembly (North Atlantic Assembly/NM), but one that does not possess any real powers. It is interesting to note that the NAA was set up in the mid-195os through the self-initiative of several parliamentarians from both sides of the Atlantic and that it does not belong to the NATO treaty itself. It is also important to mention that democracy was not a leading factor for NATO membership (especially during the Cold War years) in the way that it has always been in the European Community (EC)/EU.13 The situation is now, thankfully, different, as the 1999 and 2004 NATO enlargements show. As for the Western European Union (WEU), it has now all but been "disbanded" (except for its Article

5). Its parliamentary dimension strangely continues to exist under a new name (the Interim European Security and Defence Assembly). Its influence in democratic accountability terms remains very limited all the same.

As far as EU defense is concerned, although there has been recent progress in European integration in that particular policy area following the 1998 Franco-British Saint-Malo Declaration,14 there is very little, if any, parliamentary accountability. One of the reasons is that, so far, there have only been informal Defense Ministers Council meetings, as they do not formally exist. A treaty change is not necessary, but, to date, these new meetings have not been formalized. There is a practical problem with such a development since the ESDP is formally part of the CFSP. There already are bodies within the EU Council dealing with defense exclusively, but not all CFSP issues cover defense matters. Thus the EP has repeatedly "demand[ed] that a separate Council of Ministers for Defence ... be created for ESDP matters."15 All of the above means that there is very little democratic control.

The next section presents a number of formal and informal proposals that were available, and indeed discussed, in the relevant Convention Working Groups, as well as a number of other documents. Sadly, they were not even included in the 2003 Draft Treaty, let alone the 2004 Treaty.

Existing Proposals...Proposals Ignored

The Convention finished its work without including a number of proposals that were both available in the existing literature on the subject and which were discussed in the relevant Convention Working Groups (Working Group VII on the external action of the EU, Working Group VIII on defense, and Working Group IV on the role of national parliaments). We will argue that the new Constitutional Treaty does not alter the existing democratic deficit in the CFSP in any significant way. We will also argue that, because the ESDP is included within the CFSP, the national democratic deficits in defense are actually added to the existing ones in foreign policy (both at national and EU levels).

As far as "inter-parliamentary cooperation" is concerned, there was talk of the need to institutionalize cooperation between the European and national parliaments on foreign, security, and defense policies for a variety of reasons, including democratic accountability purposes. The national parliaments of the EU member states must continue to play a role in the CFSP and ESDP because there is still no powerful EU voice in the world. This empirical observation is further reinforced by the stance of many new member states during the crisis over Iraq in 2002-2004. One should not, however, fall into the trap of re-nationalization. National parliaments can only play a certain role in EU foreign, security, and defense matters precisely because a CFSP and an emerging ESDP exist. Thus, the role of the EP cannot and should not be dismissed either. In practice, it means that it is only a combination of these two levels (European and national) of parliamentary control that needs to be developed at the same time. This simultaneous development is also due to the fact that most national parliaments do not exert as much control as they should (see above).

On the Convention table the following proposals were presented, discussed, but eventually not adopted:

  • an annual inter-parliamentary forum (EP and national parliaments) or a "Congress;"
  • a second Chamber of the EP with national MPs (Working Group on Defence 2002);
  • an inter-parliamentary forum of national MPs on CFSP/ ESDP issues, including additional cooperative arrangements with the EP (Nazare Pereira 2003), which was favored by several members (but not all) of the Working Group on Defence;
  • joint (or simultaneous) bi-annual debates on foreign policy for the EP and national parliaments (ISIS 2003);
  • joint bi-annual meetings of the relevant parliamentary committees of the EP and those of the national parliaments (EP 2003);
  • increased financial and other resources for parliaments (both national level and the EP) to allow for more contacts with think tanks, the media, and NGOs (ISIS 2003);
  • better use of the PNEU (Parliamentary Network of the European Union), especially with parliamentary conferences on specific CFSP/ ESDP issues (Duff 2002);
  • if QMV (qualified majority voting) is used in the CFSP, the EP should be given co-decisional powers (Van Eekelen 2003).

From the above, we tend to disregard the last option as not only unrealistic but also undesirable.16 The most desirable options are the setting up of an inter­parliamentary forum, or, even better, a second chamber. But both are unlikely (see below). Thus, a compromise solution could be a regular meeting of specialized committees. This is the gist of the Protocol on the role of national parliaments attached to the final Treaty which calls for a conference of Parliamentary Committees for Union Affairs and which specifically mentions CFSP and ESDP matters. As always, however, it remains to be seen how it will be implemented. That is to say, the devil is in the details. How much real power would these inter­parliamentary committees be granted? Moreover, we note that the term used is "may" and that, therefore, such a provision is not obligatory. It is also somehow convenient to mention such a development in the Protocol rather than in the main body of the new text.

One should add that there is a fundamental problem with the EP that has yet to be fully addressed: "The EP has been relatively unaffected by the outcome of the Convention. This is due to the fact that this institution suffers from a lack of legitimacy rather than of power."17 The implications are various. They do not facilitate a transfer of parliamentary powers from the national level to that of the Union. To a large extent Members of the European Parliament (MEPs) themselves are to blame. Christian Lequesne aptly describes the problem as "the Convention's ... resistance towards the creation of a congress made up by national and European parliamentarians.” For dogmatic reasons, the EP is strongly opposed to the creation of a second chamber on the grounds that the Council should be turned into a Senate along the federal model. Once more, cooperative arrangements between the national parliaments and the EP are needed, especially in light of the non-existence of a European demos. This is an important point that is often missed by many observers. For a recent example, see Nowina-Konopka’s incorrect, in our view, use18 of the “domestic model analogy” with regional and sub-national entities. The whole point is that there is no European demos; whereas, national ones exist.

Particular attention was also given to the way the new European foreign minister would be appointed. The same applied to "special envoys." The Constitutional Treaty does not envisage a role for the EP (and/or the national parliaments) in the appointment of the Foreign Affairs Minister. If as also been suggested that this new post should be made accountable to national governments and parliaments, rather than the EP.19 A proposal for the creation of a post of Defense Deputy for the ESDP was also made.20 Neither has materialized.21

In more general terms, Article I-40-8 includes a general reference to the role of the EP in international affairs:

The European Parliament shall be regularly consulted on the main aspects and basic choices of the common foreign and security policy. It shall be kept informed of how it evolves.

Article 41-8 reiterates a similar role in security and defense policy. Thus, if remains clear that the EP's role in CFSP /ESDP matters is one of consultation only. This consultative/advisory role also extends to the future development of a European External Action Service (i.e. a kind of EU diplomatic service). Article III-296,.3 foresees the EP's advisory role in such a development.

An important new development in the new Treaty is the creation of the post of Union Minister for Foreign Affairs. This new position will merge the roles of the existing CFSP High Representative and of the External Relations Commissioner (respectively held by Javier Solana and Benita Ferrero-Waldner, previously Chris Patten). The Minister will also be the Commission's Vice President (the implications of this joint appointment remain unclear). The European Council will appoint him/her. However, the EP obtained the right to elect the Commission President, so there appears to be a quid pro quo here between intergovernmentalists and supranationalists. But neither the EP nor the national parliaments are involved in the appointment of this new "Foreign Minister." Article III-304-1and2 state that:

The Union Minister for Foreign Affairs shall consult and inform the European Parliament ... He or she shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament.

The European Parliament may ask questions of the Council and of the Union Minister for Foreign Affairs or make recommendations to them. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy.

Part of paragraph 1 from the 2003 Draft Treaty has been dropped: "The European Parliament shall be kept regularly informed by the Union Minister for Foreign Affairs of the development of the common foreign and security policy, including the common security and defence policy." Although it could be argued that the deleted reference represented nothing more than a tautology, it could also be argued that by removing it, the EP powers over what the Minister will do have also been contained. The remaining references to the EP role continue to be the same as they were in the existing and previous Treaty, i.e., information mechanisms such as debates, oral and written questions, and reports. It is imp01tant to note that even such an advisory role is not envisaged with regard to the new European Armaments, Research, and Military Capabilities Agency (Article III-311).

The new Treaty also includes both a "security clause" (Article I-51 on territorial integrity) and a 'solidarity clause' (Article I-43 on terrorist acts and natural or man-made disasters). In our view, it is equally important that closer integration be accompanied by more accountability. That.is to say that if there is 'more Europe' in security matters, there should also be more accountability in those specific matters. Similarly, the extension of "enhanced cooperation" (or "structured cooperation" in the defense field) also implies that there should be more cooperation between national parliaments and the EP because not all twenty­ five member states will he involved in this kind of cooperation all of the time. This is however not the case. Indeed, in the Protocol on the role of national parliaments in the EU there is not a single reference to foreign policy or defense matters, except for inter-parliamentary cooperation on "matters of common foreign and security policy and of common security and defence policy,” as already mentioned above. The door for democratic accountability is open but an important opportunity to institutionalize such cooperation has been lost. As Natividad Fernández Sola has correctly noted elsewhere, “defense policy continues to remain immune to parliamentary control.”22

With regard to trade policy and international development aid, most articles do not even mention the Parliament (Articles III-314-326). There are only mentions of the Commission reporting to the EP over Common Commercial Policy negotiations (Article 315-3) and of "informing" the EP about economic sanctions and other financial restrictions (Article 322-1). Only Article III-325 lists the areas where the EP's consent is required, namely, association agreements, international cooperation treaties, and other agreements that have budgetary implications for the Union or involve EU legislation.

Finally, in some of the Constitutional Treaty articles that cover the "democratic life of the Union" (Articles I-45-4 7), there is a reference not only to "representative democracy" but also to "participatory democracy." Parliamentary cooperation is the most obvious form of accountability in indirect democracies.

However, due to technological advances, it is now possible to include a form of direct democracy. Ironically, the Treaty calls it "participatory democracy," as if indirect democracy were not of the same type. For instance, a defense strategy should therefore be developed after a "full public and parliamentary debate that would establish fundamental principles and clarify citizens' expectations. "23 Thus, in the future, the so-called "Solana Strategy" (the European Security Strategy) should form a basis for further open and complete dialogue, and not be the exclusive propriety of governments. In short, public opinion may begin to play a role in EU foreign and defense issues. There is, again, only a half-open door in tJ1e Treaty, but no real thought has been given to how European citizens could intervene in the framing of the CFSP, let alone defense matters. Such involvement is also difficult to implement because of the lack of public opinion input in foreign policy at the national level. However, the real challenge remains the absence of a European wide demos.24 Thus, the non-institutionalization of a link between national parliaments and the EP remains an important missed opportunity, not only as a democratic control mechanism but also as a way to facilitate public opinion's involvement in the decision-making process. Institutionalization is also important because (as Jean Monnet's oft-quoted saying goes) nothing can be done without people but nothing can last without institutions.

Conclusions: A Missed Opportunity

Why is such an issue still not attracting the attention it deserves? It is clear that after nearly thirty-five years in the CFSP (previously European Political Cooperation/EPC), the EU still does not possess a real voice in the world. But where we disagree with the dominant view in the EU foreign policy literature is that a communitarization of the second pillar is not only unlikely but that it is unwelcome. 25 It is necessary instead to democratize the CFSP and ESD P because a more democratic second pillar means a more democratic EU tout court, and more integration without more democracy is neither a realistic nor a desirable option. In other words, even if democratization is not a panacea to the question of how to best achieve a common European stance on foreign and defense policy, 26 it still represents a necessity for its own sake, because there is a link between democratic accountability and efficiency in democratic structures. Similarly, the militarization of the EU will not be successfully completed without democratic input and related forms of democratic control. The defense dimension requires the support of the various public opinions in the EU 25. Without democratization, further integration in this very sensitive public policy area will be seriously compromised. As two Convention members have argued, first:

The reinforcement of the European Union's international role has to be accompanied by an improvement of its parliamentary responsibility. Without such responsibility, European actions would permanently lack democratic legitimisation and authority towards the Member States and the citizen. This might provoke more complicated and longer procedures for external relations actions. But the American example proves that the ability to act does in no way suffer from a strong involvement of the Parliament. 27

Second, in his Contribution, Pavol Hamik (Polish representative to the Convention), considered as a major drawback the fact that in the process of establishing the ESDP the pragmatic functional approach continues to prevail with progress being made by technical agreements without greater public involvement. This was probably convenient during the initial stages, however, from a long-term perspective even this part of the European integration cannot successfully continue without larger public involvement. The gradual pressure exerted to maintain, and eventually even slightly increase defence expenses, which is not simple in any country, will certainly be politically sensitive.28

From the above, it is therefore possible to conclude that very little attention has been paid to the question of democratic accountability in the CFSP and the ESDP. It is clear that another missed opportunity is being added to the many more that have occurred in the past. Each time there has been a treaty revision (or a new treaty), and therefore an opportunity to remedy an unsatisfactory state of affairs, there has been no real interest in the question of democracy and EU foreign policy. Ever since the "militarization" of the EU (post-Amsterdam) there does not appear to be any interest either in how to control European defense democratically. 29 But, it is important to emphasize that agreeing on a "Constitution" for Europe is a defining moment in itself, often compared to the 1787 Philadelphia Convention. Thus, it is a golden opportunity that has been missed, not just another one.

In that respect, a public information campaign appears to be of particular importance for foreign, security, and defense policies. As several EU states will hold referenda to ratify the Constitution, it is high time for such an initiative to materialize. Democracy without fair, accurate, and updated information is not a realistic proposal.

This article has shown that the existing democratic deficits in foreign, security, and defense policies have been reinforced by the creation of an ESDP within the CFSP, without the addition of any significant new accountability mechanisms. It has also surveyed a plethora of existing proposals for a more democratically accountable CFSP/ESDP. Suggestions and recommendations to that effect are available. What needs to be done is to adapt and implement (some of) them because, at the end of the day, the democratic dimension of integration cannot seriously be enhanced without parliamentary accountability. Without it, there can be no real progress towards a more united, more efficient, and more internationally active EU. It is hoped that this article has highlighted the urgent need for a public debate about some vital issues for the future of an enlarged (and enlarging) EU. Decisions to go to war or to send troops into a hostile environment surely deserve more attention than they have received to date. The question of democratic accountability in EU foreign, security, and defense policy has yet to emerge as a serious preoccupation for EU decision-makers, despite the rhetoric to the contrary in the Constitutional Treaty.

Notes

During January-December 2004, Dr. Stavridis was a Visiting Professor at the University of Zaragoza. Anna Vallianatou is a Ph.D. candidate at the University of Athens, Greece.