Blog of the International Journal of Constitutional Law

Towards a “New Schuman Declaration” (I·CON 13, Issue 2: Editorial)

Even at a time of crisis, one can neither forget nor overstate the fundamental contribution of the European construct to the destiny of our continent over the last six decades. In several respects the successes of Europe may have exceeded the boldest expectations of its visionary founders.

What seemed at the time no more than a dream – making war among the Member States of the Union “unthinkable” – became an unquestionable reality.

And though not perfect, Europe was transformed so that citizens as well as goods, services and capital could move freely in a vast common marketplace – which for decades was an engine of prosperity in an area committed to social justice, solidarity and ecological responsibility.

The appeal of Europe was not merely economic. The underlying values of human rights, the rule of law and democracy provided an inspiration and catalyst for the democratic transformation of many of the Member States which joined an enlarging Union. At its best the Union represented the promise of a better future for all.

The circumstance of Europe has changed.

We are witnessing today a pervasive sense of insecurity among European citizens. There is the obvious and immediate sense of economic insecurity, both private and collective. This is coupled with a concomitant concern of the ability of our societies to retain their commitment to an order which guarantees not only individual prosperity but a life of dignity and social justice for all. Something as fundamental as energy supply, the ability to keep our homes warm and our factories humming, has become a source of anxiety. A changing geopolitics, with different kinds of armed conflicts raging on the borders of, and in close vicinity to, Europe has made the issue of external defense and internal security, a matter of real concern to many.

At a deeper level, the specific cultural and political identity of national societies is perceived as being threatened. For many this is associated, rightly or wrongly, with the phenomenon of immigration, both internal and external.

Finally there are growing doubts about the Union itself – notably the ability of our institutions to reflect and respond to the desires and wishes of the very citizens they are designed democratically to serve. There has been a worrying disengagement of a large number of citizens from the process of European integration.

The appeal of “The European Dream” has weakened considerably.

The challenge before Europe is to respond to these insecurities and once again to become the source of hope in a better and safe future. It must convincingly demonstrate that for most of these issues Europe, united in solidarity, offers the best and in some cases the only effective answer. As in the past, this will require bold leadership transcending the immediate daily concerns of our political life and guided by a vision of, and a belief in, a better European future.

There is not a single plan which can redress these challenges overnight. But, we believe, decisive action in several key domains could constitute a platform for the retransformation of Europe and the re-engagement of her citizens.

  • The policies put in place and the instruments developed in response to the current crisis seem to be finally beginning to produce the hoped for effects in terms of growth. But the disparity between the monetary and fiscal toolkit of Europe has to be faced unflinchingly and its resolution has to be part of any medium and long term strategy for a credible economic future of Europe. The resources of the Union are clearly incommensurate with its responsibilities. However, sufficient resources are already available to remedy what a great number of Europeans have suffered as the main injury produced by the prolonged economic and financial crisis, namely the reduction both of jobs and of the level of protection of essential social rights. The Union, still proud of its welfare culture and institutions, should set a minimum threshold for social and sanitary protection and allocate a new fund for subsidiary interventions whenever in a Member State the threshold cannot be respected.
  • Likewise, the priorities in the manner in which the Union spends its resources have to be reexamined. Historically Europe undertook, justifiably, a major commitment to the agricultural sector. Despite the successive reforms of the CAP, which reduced significantly the European resources dedicated to agriculture, this sector still attracts a large portion of the Union budget. That commitment should not be abandoned altogether. But the reality of the lives of most citizens is urban. A shift of resources to a “Common Urban Policy” – in which mayors could play an important role – with urban renewal projects contributing to growth and employment, as well as climate control, should be considered a priority in a reviving Europe.
  • Moving decisively to establish an Energy Union which would rationalize the production, procurement and distribution of energy for Europe as a whole, could provide a level of high energy security for all, with best practices of conservation, climate control, renewability and sustainability.
  • Once considered at the core of national sovereignty, it has become today palpably apparent that no single Member State has on its own the capacity to guarantee the defense and security of its citizens in the face of potential external threats or the challenge of terrorism which recognizes no national boundaries. National sovereignty in this area is an illusion. A European Defense Union in which the defense and security capabilities, expenditures and procurement would be pooled can no longer be rejected on the basis of this illusory notion of sovereignty. Such a Europe would both enhance its contribution to, and its voice within, NATO and more effectively and justly be able to meet the challenges of extremist terrorism.  Furthermore, in order to meet such challenges, pooling national resources of intelligence and investigation would raise the efficacy of preventive activities and give the citizens a welcome sense of enhanced security.
  • Our understanding of European citizenship must undergo a radical shift. Mobility should remain one of the fundamental principles of the European common space, but it alone cannot constitute the core of European citizenship. Veritable citizenship is not about moving – it is about the ability of citizens to “own” the polity, to gain a real sense that their preferences as expressed through the political process have a meaningful and decisive impact on who governs Europe and how Europe is governed. One way of doing this would be to change the political process so that at election time citizens are given meaningful political choices as regards the policies to be pursued by the Union, and those who govern at the European level are meaningfully accountable to the electors.
  • The demographics of Europe are such that a policy of legal and well regulated immigration is and will remain indispensable for its future. The reality of free movement within Europe makes the Union necessary for an effective regulation of immigration which European citizens legitimately expect. The premise of any such policy is that Europe should be a home to newcomers but those, in turn, must make Europe and its values their home. The responsibility of dealing with illegal immigration and with asylum seekers in a manner consistent with our belief in the inviolability of human dignity should not be shouldered by the “gateway” Member States alone.

Sixty five years ago Robert Schuman wrote that concrete achievements were needed to create solidarity among Europeans and upon this basis to build Europe. Today concrete achievements are equally needed to restore solidarity among Europeans and upon this basis to re-vitalize Europe.

Giuliano Amato

Elisabeth Guigou

Vaira Vike-Freiberga


JHH Weiler (Secretary)

This text was presented at the opening session of the State of the Union event held at the European University Institute in May 2015. It should be seen as part of the ongoing “new narrative for Europe” debate. Its authors, experienced politicians from different backgrounds and political orientations, were inspired, in tone and succinctness as well as approach, by the illustrious “original narrative” of European Integration.

I.CON Prize

The inaugural I.CON Prize was awarded to Michaela Hailbronner for her article entitled “Rethinking the rise of the German Constitutional Court: From anti-Nazism to value formalism”. The prize, awarded to the author of the most outstanding article published in the volume of the previous year, was presented at the ICON-S conference, held in New York in July 2015. Runners up for the award were David Bilchitz for his article, “Socio-economic rights, economic crisis, and legal doctrine”, and Ruth Rubio-Marín, The achievement of female suffrage in Europe: on women’s citizenship”. Congratulations to the authors.

In this Issue

Robert O. Keohane opens this issue with an I.CON Keynote, originally given at the inaugural ICON-S Conference in Florence 2014, in which he addresses prospects for democratic global governance.

Our article section follows, offering some particularly rich and thought-provoking scholarship in this issue. In the first article, Matthias Klatt provides a solution to the problem of how courts should enforce social and socio-economic rights. He argues that it is possible to arrive at a balanced account of judicial review that avoids both the problems of too much and too little control. In the next article, Vanessa MacDonnell examines the role of civil servants in implementing constitutional rights. Next, Kristen Stilt presents a historical and contextual analysis of the adoption of constitutional clauses referring to Islam and Islamic law. She focuses on the making of the Federation of Malaya Independence Constitution of 1957. Thereafter, Christopher McCrudden examines how “culture wars” between civil society actors are conducted in courts, using conflicting interpretations of human rights law.

Central to this issue is an illuminating and stimulating Symposium on Global Administrative Law. The authors reflect on Global Administrative Law after 10 years and examine the directions it has taken: its boundaries, teleology and future pragmatic course.

Finally, in our Critical Review of Governance section, Swati Jhaveri and Anne Scully-Hill consider the impact of judicial review on constitutional development in Hong Kong.



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