Tag Archives: Democracy

The Panama Papers: Reimainging the Moral Force of Law


Image courtesy of Dronepicr

The release of over 11.5 million documents from Mossack Fonseca, a Panamanian based law firm, has revealed the lengths to which individuals and companies will go to avoid their national tax obligations. When asked about the problem of tax avoidance, President Barack Obama acknowledged that those with wealth can avoid their tax systems when necessary, especially if they have the right lawyers and accountants. ‘A lot of it is legal,’ the President said ‘But that’s part of the problem.’

Those of us interested in the global rule of law and global constitutionalism should pay attention to President Obama’s point. Promoting the rule of law is hardwired into the international normative order. NGOs, international and regional institutions, and well-meaning liberals argue that law rather than politics ought to guide decisions at the global level. As John Adams, American founder and president maintained, we want a ‘government of laws and not of men’.

But law is not divorced from politics, either at the international or domestic level. A legal system results from political decisions, and those political decisions result, in part, from power configurations. Perhaps we ought to abandon our quest for the rule of law and recognize what Marxists have long emphasized, that law simply reflects a social and economic reality which, for all its pretentions, it cannot transcend. If this is true, does this mean that the quest for the rule of law is nothing but a chimera at the global level?

I’m not ready to give up on the rule of law. Without it, violence and coercive power would dominate the world order. The argument of those working in the realm of global constitutionalism is that we need not abandon the hope of a rule governed order. There must be some way to harness power and law to produce a more just and equal political order.

At the domestic level, this can come about either through representative government, although realizing truly representative institutions which are not tainted by injustice is no easier at the domestic than at the global level. Revolutionary movements to advance the cause of equality and justice are another means, one that has created the representative systems we have in many countries around the world. There is no representative institution at the global level, so perhaps we are left with the revolutionary model?

A third way might be through the device of constituent power. Constituent power is the act of a people to establish its political order through the creation of its constitution. Constitutional conventions remain the paradigmatic instance of constituent power. But as Jason Frank has argued, the constitutional convention is not the only constituent power moment; a constitutional system results from continued engagement of the people with its legal and political order. Those engagements can at times be conflictual and even revolutionary, but at other times they may be more prosaic. The point is that such constituent moments need cultivation and attention, and need to be recognized as such in order to give them the power to shape and reimagine a political order.

Does constituent power exist at the global level? If we name political protests, NGO activism, and forums in which activists and political leaders meet to articulate new agendas and ideas, then perhaps we do have something like this. Especially if those activists articulate their claims in the language of rights, law and democracy, they may well count as efforts to constitutionalize the global order.

The activism of the International Consortium of Investigative Journalists which released the Panama Papers demonstrates how those engaged in the protection of free speech and hardnosed journalism – classical liberal virtues that keep lawmakers honest in domestic societies – provides an instance of global constituent power. This organization does not represent anyone, but constituent power is not just about representative democracy; it is also the moral force that ensures constitutional orders remain true to their purpose.

President Obama is right in recognizing that tax havens are legal. But the constituent power of those who revealed the failure of global law gives us hope that global justice is possible when we make use of the emancipatory potential of law to advance rights and equality around the world. Recognizing the release of the Panama Papers as an instance of global constituent power can play a small but significant role in advancing that agenda.

Anthony F Lang, Jr holds a Chair in International Political Theory in the School of International Relations at the University of St Andrews and is Director of the Centre for Global Constitutionalism.

Image courtesy of Dronepicr

Read All About It (Or Not): The Trouble with the Turkish Press

Istanbul’s 2013 Gezi Park protests unearthed muddy tales of corruption, bias, and authoritarianism that powerful conglomerates and the ruling Justice and Development Party (AKP) would have preferred buried indefinitely. The government received global scrutiny as anyone from students to grandmothers gathered in the streets to demonstrate against the AKP’s increasingly undemocratic actions, including silencing the press.

In the years since, the Syrian crisis, President Recep Tayyip Erdoğan’s strong-handed foreign policy, and religious issues have dominated coverage of Turkey abroad – leaving important issues like press freedom and related human rights violations once again shrouded in silence. Yet the political biases of Turkish media deserve scrutiny by Turkish and international audiences alike. Amidst the crises of the region, misreporting and bias convolutes the information reaching the public and can have very real implications for the understanding and response to various issues. The stories of daily paper Sabah and the press treatment of the Kurdish minority both offer warnings of the damage Turkey’s biased press machinery can cause.

Sabah, a daily newspaper founded in 1985, is telling of the complex and often hidden ways in which press freedom is stifled in Turkey – and just how deeply corporate and government meddling runs in the industry. After displeasing government officials in 2007, the paper was seized over an alleged misfiling of merger and acquisition paperwork six years before. The state sold the daily to a company owned by then-Prime Minister Erdoğan’s son-in-law using state-subsidized funds, allowing the government to effectively control Sabah’s content.

When this was uncovered during Turkey’s December 2013 anti-corruption protests, the holding company quickly sold Sabah’s owner, Turkuvaz Media, to another conglomerate, Kalyon Group. Selling to Kalyon was supposed to wipe the government’s fingerprints from the pages of Sabah, but the group, also involved in construction, energy, and infrastructure, won a government contract to build Istanbul’s new airport, as well as controversial projects in downtown Istanbul’s Taksim Square. The journalist that exposed the shady underworld of Turkey’s media in the New York Times was immediately fired by Sabah.

While Sabah serves as a particularly twisted example of the incest among corporate, political, and media interests, its case is not unique. Most media in Turkey is of the polarized political model, meaning papers are closely tied to certain political parties and views. Popular newspaper Hürriyet, for example, is a secular, anti-government paper, while Zaman is a religious, though also anti-government outlet. These biases transmit skewed information that affects civil society’s understanding of and reaction to issues. The media is a battleground for politics, allowing giant corporations to leverage their money and influence to alter the political landscape in Turkey. As Turkey begins another year full of political turmoil, refugee crises, and terrorist threats, disconnect and confusion in the public will further divide groups and politicians on Turkey’s policy.

The case of the Kurds, a minority group numbering about 15 million within Turkey who have been systematically denied group rights since the creation of the Turkish state, has already demonstrated the dangers of a heavily politicized press. One group of Kurds, the Kurdistan Workers’ Party (PKK), has waged a guerilla war for autonomy and independence against the government since 1984. The press uses the actions of this group to report on Kurdish issues from whatever angle they see fit – often painting Kurds as a whole as violent and using the effects of the PKK’s violence to polarize the public to suit their political aims.

The 2011 Şırnak bombing of Kurdish civilians smuggling goods like tires and cigarettes between Turkey and Iraq to survive, was warped to justify not only the government’s actions but the persecution against all Kurds in the fight against the PKK. Anti-government daily Hürriyet took a stance more sympathetic towards civilians while religious newspaper Zaman offered few, though mostly factual articles, and Sabah predictably mirrored the government line. Meanwhile, all three newspapers’ international English language editions defended the government. The readership of each newspaper would have received information about the bombing in such a way as to harden their own political views – and international audiences would have been baldly missing information that uncovered the government’s mistake. The bias of each paper shaped their audience’s understanding along their own political lines.

The media continues to ignore and justify the government’s actions towards Kurdish communities. The hardships of Kurdish areas under stringent curfews and facing cuts to vital services are passed off as part of legitimate anti-terrorism measures without further examination, and external observers are barred from the area. The 200,000 people affected by these measures have limited ways to seek help. In January, someone who tried to speak out about these issues on a chat show was arrested. The Kurds are playing a more and more pivotal role in the fight against the Islamic State (IS), and their treatment in the Turkish media can have a deep effect on how the Turkish public, and accordingly, its elected government, treats these potential allies. The history of the conflict makes a deep relationship difficult, but uniting forces against a common threat is easily hindered by voices shaming a population for the actions of a few.

The international community still offers Turkey’s media bias some attention amidst the other crises it currently handles when dealing with Turkey. However, it focuses on the explicit violations of press freedom, like the jailing of editors and journalists for anti-government rhetoric or reporting. International actors are not pressuring Turkey to change the shady dealings of corporations and politics that color important interactions in the civil sphere. In the war of information occurring in the country, these dealings can have an impact beyond the borders and into the sphere of international relations.

Staying informed about extreme measures, such as the curfews in the southeast and other violations of international law, is hampered by a wash of political information that skews stories and clouds reality. To win the support of the Turkish people, offer less biased information domestically and internationally, and ensure that Turkey is able to hold on to the shreds of the democratic ideals it has left, the international community should be paying more attention to the Turkish press. In the meantime, if you are interested in understanding the complex state of Turkish politics, I suggest you turn to Twitter, where groups like 140journos use the platform for citizen-led, non-political reporting.

*Article originally published by the St Andrews Economist*

Solidarity or Self-interest? European Integration and the German Question

Image by Marcio Cabral de Moura

Image by Marcio Cabral de Moura

This article by David Miles was originally published by The Carnegie Council for Ethics in International Affairs in Carnegie Ethics Online on 17 August 2015.

In Klaus Harpprecht’s 1995 biography of Thomas Mann, he highlights a statement which Mann wrote in 1947, which, as Harpprecht puts it, “one reads with a distinct shiver half a century later”:

In barely 50 years […] Germany will, in spite of everything, have all of non-Russian Europe in its pocket, as Hitler could already have if he had not been so impossible.

Less than 50 years later and the country was reunified, but it was a more restrained Germany on the European stage, deeply aware of its past and struggling to bear the economic burden of incorporating East Germany into the West German republic. Still, Mann was in many ways correct, for it is Germany’s financial might and its very deep resources which have so far kept the European integration bicycle pedaling forward. Yet as the recent negotiations over the third bailout of Greece illustrated, there are signs that Germany’s largesse and its willingness to sacrifice its own interests for the sake of the European project have definite limits.

Twenty-five years ago, everything seemed possible. “Do you realize that you are sitting opposite the direct successor to Adolf Hitler?” Chancellor Helmut Kohl said to an astonished Timothy Garton Ash shortly after re-unification. It was evident, said Ash, that as the first chancellor of a united Germany since Hitler, Kohl was profoundly conscious of his historical duty to do things differently.

Germany today is earnest in its desire to be a good European neighbor, but it does not believe that it can or should pay any cost as part of this role. One problem is that economic, not ethical values have become the lodestone of the European Union. As a hybrid construct, the EU lacks the societal dimension which, within the nation-state, is the critical element that allows one group of people to identify with another and which legitimize government actions designed to help one part of the community at the expense of another. People in London or New York accept, perhaps grudgingly, that their tax pounds and dollars may be used to fund projects for the benefit of people in Cardiff or New Orleans. They accept this because they recognize the others as being members of the same community.

Most liberal democratic states in the West succeed by having political and constitutional processes in place which legitimate policy choices that help one part of a society at the expense of another. Here, it is both the acceptance of the specific legitimation process by people (i.e. its constitutional and political processes) AND people’s recognition that they inhabit a common society that ultimately justifies taxation and spending decisions. As Keith Whittington of Princeton puts it, “constitutions cannot survive if they are too politically costly to maintain and they cannot survive if they are too distant from normal political concerns.”

This is a lesson which European, principally Franco-German leaders, often for the best of motives, have refused to take on board over decades. To understand their reluctance to consult with or seek to understand the opinion and belief of the people and the dilemma this has created for the EU, one must recognize the particular type of limited representative democracies which were established in Europe after the Second World War. If a constitutional system could bring the Nazis to power through a democratic election, as happened during the Weimar Republic, this was proof, especially to West Germany’s founders, that to prevent a country committing democratic suicide there had to be certain entrenched principles of democracy and of human rights that neither the people nor their representatives could change. At the state level these “highly constrained” democracies, as Jan Werner-Müller puts it, were characterized by unelected institutions (such as constitutional courts), while at the supra-national level European integration was meant to impose “further constraints on nation-state democracies through unelected institutions.”

Following the fall of the Berlin Wall and faced with the prospect of a reunited Germany, French president François Mitterand sought to ensure that German reunification could only happen in parallel with the further integration of Europe, thereby binding Germany’s future to that of Europe. Mitterand told Germany’s foreign minister Genscher in November 1989 that if Germany did not commit itself to the European monetary union, “We will return to the world of 1913.” In Helmut Kohl, Mitterand had a partner who recognized that Germany would have to sacrifice its self-interest to reassure the rest of Europe. It was a policy, as Harold James put it, “derived not only from concern with foreign reactions to German power, and a French wish to harness Germany, but also from a German fear of German power.” This meant giving up the symbol of its post-war strength and stability – the Deutschmark – and committing the country to the European integration project by agreeing to monetary union (EMU). Closer union and EMU were the price that Germany had to pay to reassure its most important neighbor, France. In the heady days of German reunification the normative quest to be ‘the good neighbor’ in a new Europe had a special potency. But how much would Germany be willing to pay to play this role?

Those who criticize Germany for the ‘mental waterboarding‘ of Greece should recall the grumbling in the former West German states over the huge transfers of taxpayer wealth to the former East German states since reunification in 1990. Even today after approximately 2 trillion euros of investment in East Germany, German taxpayers still see a deduction on their paychecks for the so-called ‘Solidaritätszuschlag‘—the solidarity tax. If bailing out their own compatriots was done through clenched teeth, one immediately sees why additional money transfers to southern Europe to bail out Greece or other countries is for many Germans beyond the pale. Yet such fiscal transfers are seen by economists as the absolute pre-requisite necessary to make the eurozone work long-term.

The flaws in European monetary union that became so apparent at the start of the eurozone crisis in 2011 were to some commentators confirmation of just how ill thought-out it had been to allow different countries to share a currency without a political or fiscal union, and without any transfers of money from the stronger to weaker performing parts of Europe. Yet the flaws in monetary union were not just anticipated, but had been predicted from the outset. Far from being a project based on rosy expectations, those driving European integration embarked upon monetary union with the very belief that a crisis would develop at some point, since it was precisely through such challenges that the European cognoscenti in Paris, Bonn, and Brussels believed that closer political and fiscal union would develop. In a very prescient piece in Foreign Affairs from 1998, Timothy Garton Ash laid bare the delusion underlying the ‘crises will make Europe stronger’ fallacy: “It is a truly dialectical leap of faith to suggest that a crisis that exacerbates differences between European countries is the best way to unite them.”

Thinking Strategically, Thinking Morally

Supporters of the EU argue, often persuasively, that its success in promoting stability since World War Two can also be viewed as achieving a fundamentally moral purpose in preventing bloodshed and establishing the conditions in which societies might prosper and pursue policies that are both liberal democratic and ethical in nature. However, others like Robert Kagan have argued that Europe’s ability to operate and prosper in a post-modern utopia after 1945 was only possible because of the American-backed NATO security blanket which underwrote Europe’s capacity to pursue its liberal economic and social democratic policy desires, while safely being able to ignore thorny and usually scary geopolitical questions.

During the frantic negotiations over the Greek debt crisis in late June and July, the intervention by the U.S. government on behalf of Greece was noteworthy. The United States sees the geopolitical position of Greece between Europe and the Middle East as critical to the integrity of NATO’s south-eastern flank. Especially ironic was that it was the U.S., the citadel of free market capitalism and neoliberalism, that was having to remind social democratic European states about the risks of Greece crashing out of the eurozone due to a failure of European solidarity and compassion.

More problematic is whether most European leaders today are even capable of thinking strategically in geopolitical terms, given the dominant role of the U.S. in defending the continent during the Cold War. If thinking strategically can also involve acting (or appearing to act) morally, then the Marshall Plan after World War Two was certainly an example of how to turn bitter enemies into the staunchest of allies. It is far easier to turn so-called ‘solidarity’ into hostility or enmity, as eurozone leaders risk doing over Greece.

On one level, Angela Merkel is right to stress the importance of Europe getting its house in order to meet the economic and social challenges of the future. Her favorite statistic, as John Mickelthwait and Adrian Wooldridge note in their new book The Fourth Revolution, is that the European Union accounts for 7 percent of the world’s population, 25 percent of its GDP, and 50 percent of its social spending. Europe’s long-term crisis of a declining working age population and people living longer is indeed a serious one, and when the chancellor mentions this statistic, as she did at the World Economic Forum in 2013, it is intended every bit as much for a French audience as for any in southern Europe. The eurozone cannot work in the long-run unless France reforms its economy and introduces the same sort of efficient working practices as Germany, and increases its pension age further. Such French reforms seem unlikely at present, forcing Germany into the position of lobbying for institutions which will bring fiscal, budgetary, and, ultimately, political union closer, but knowing full well that such institutions will be impotent if France doesn’t or can’t play ball when it comes to enforcing rules. Germany, which agreed to monetary union to ameliorate French concerns over reunification, finds itself playing Oliver Hardy to the French Stan Laurel: “Here’s another fine mess you got us into.”

The conundrum which has thus far proved impossible for the EU (as it is currently constituted) to solve is that the bloodless grey institutions which might make Europe function effectively as an economic entity are likely to make it fail as a social democratic project. Reliance on economic orthodoxy at the expense of a set of values that European citizens could relate to has led to growing disenchantment with mainstream parties of the center-left and center-right across the EU. In their 2013 study “The ‘Bubbling Up’ of Subterranean Politics in Europe,” Mary Kaldor and Sabine Selchow found that those who have engaged in new forms of social mobilization and political activity across Europe have cited concern about the failure of democracy as the reason for the engagement and protest. The study found that Europe was ‘invisible’ in public displays of subterranean politics, and when it was visible it was generally regarded as part of the problem as much as part of the solution.

Part of the problem with the rationalist emphasis on process and rules is that the human dimension of Europe has got subsumed underneath the technocrat-heavy institutional architecture found in Brussels. As far back as 2005, well before the financial crisis and eurozone crisis hit, EU commissioner Joe Borg addressed the disconnect between the EU and its people: “As the European Union advances, it seems that we are losing the European citizen somewhere along the way.”

One issue is that until the 1990s, European citizens were rarely asked directly in the form of referenda whether they wanted the ‘ever closer union’ specified in the Treaty of Rome. Nevertheless, as Timothy Garton Ash notes, “for about 40 years, the project of European unification could rely on at least a passive consensus among most of Europe’s publics.” With memories of the Second World War still so vivid this was understandable. Equally compelling as a driver of European integration was the external threat posed by the Soviet Union, but when that began to dissipate in the late 1980s, and then German reunification became a reality, Europe had to discover a new raison d’etre for itself, and also find a way of incorporating a country the size of Germany (“too big for Europe, too small for the world” in Kissinger’s words) into a re-energized European integration project.

Reports of Europe’s Demise are Premature

European integration has revolved around firstly building an institutional framework for Europe, and then hoping that a European identity would develop in time alongside national identities. As former Polish foreign minister, Bronislaw Geremek observed, “Now that we have Europe, we need Europeans.” However, Rome wasn’t built in a day. As Walter Murphy observed, even 75 years after the establishment of the United States government, Jefferson Davis and Robert E Lee still considered themselves citizens of their states first, of the South second, and of the “United States” last.

The European project, with all of its messy contradictions, is still better than any of the political alternatives. One need only look at some of the unappealing political figures (andPutin admirers) wanting the European Union to fail, such as Marine Le Pen, Nigel Farage, and Geert Wilders to recognize what a giant step back it would be economically and politically for Europe to return to a continent of feuding, self-interest, and parochial nationalism.

To find an antidote to these right-wing sirens of division and recrimination one need look no further than Eastern European countries such as Slovakia, Poland, Latvia, and Lithuania—states that lived under the shadow of the Soviet Union, and now, Putin’s Russia. As important as NATO membership is to these countries, the values of the European Union are about more than pure economics. For many of these countries, the values of the EU also symbolize their own journeys towards liberal democracy. As one Polish politician put it to Gideon Rachman shortly before his country joined the EU: “Imagine there is a big river running through Europe. On one side is Moscow. On the other side is Brussels. We know which side of the river we need to be on.”

Issues like migration, terrorism, climate change, and drug trafficking cannot be effectively tackled by nation-states acting alone. The logical and practical reasons why everyone (except perhaps terrorists, drug smugglers, and Farage et al) should want the European project to succeed are manifest. Young people from every member state of the EU have benefited from the opportunities to work, study, and travel throughout Europe, often with the support of immensely successful cultural exchange schemes like Erasmus.

A more heartfelt attachment to the idea of Europe may still be some way off; but, as Robert Schuman put it in 1950, “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity.”

The crisis of confidence in the EU since the eurozone crisis is more than simply a question of democracy, legitimacy, and allowing people more opportunities to participate in political processes. It also reflects a much more fundamental question about the type of society that people wish to live in, which, as we have seen with the independence movements in Scotland and Catalonia, is as much a challenge within states as for supra-state bodies like the EU.

The challenge for the European Union and its member states, particularly Germany, is in balancing the often incongruous demands of co-operation and self-interest, and thus demonstrate to their own citizens that concrete achievements can still create a Europe of solidarity and prosperity as Schuman envisaged.

David Miles is a Carnegie Scholar at the University of St Andrews researching the relationship between judicial review and majoritarianism within Anglo-American and German constitutionalism. He is an associate fellow at The Centre for Global Constitutionalism, and is managing editor of Global Politics Magazine.

Image courtesy of Marcio Cabral de Moura