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,
"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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