The International Journal of Constitutional Law in its last number of 2011 published an article of Joseph Weiler entitled “The political and legal culture of European integration: An exploratory essay”, in which he expresses concern about three main problems within the European Union: the lack of democracy in the Union, the problem with legitimacy and the lack of a serious commitment to security. Weiler looks at these problems in the light of the political structure and legal order of the Union, relying on its foundational documents.
His starting point is that democracy was not included in the original idea of the European Communities which was expressed in the founding treaties. He argues that the Union does not fulfil the two main criteria for democracy, i.e. representation and accountability. As regards accountability, democracy means that citizens have the possibility to replace the government if it does not meet their requirements. This possibility is missing in the Union, as there is no government in charge. This is one of the reasons, according to Weiler, for lack of the political accountability in the EU. Furthermore, he argues that it is practically impossible to relate the European Parliament elections to the activities of the MEPs and their political groups. Weiler points out that the possibility for citizens to influence the policy-making process and decisions directly, was not provided for in the Union’s legal order. He considers this to be a democratic deficit, comparing it to the possibility provided at national level where citizens may choose between different political parties and their political programs.
Weiler then discusses the legitimacy of the Union and the difference between process legitimacy and outcome legitimacy. His opinion is that even if the Union is said to rest on the results achieved in the economic, social and political fields (i.e. outcome legitimacy), it is more appropriate to talk about a “legitimacy rooted in the politically messianic”. In his view, it is not so much the result that matters, but the ideal pursued, the goals with the Union that give it its legitimacy. He ironically calls it “the promised land waiting at the end of the road”. This is a way to gain legitimacy, and even if Weiler is quite ironic about it, it is important to consider that at the time the European Community was an institution with goals of peace and cooperation, and there were reasons for the states to give up some of their sovereignty. So the states gave the Community its legitimacy on the basis of its goals and shared ideals.
Weiler considers the Schuman Declaration, which is called one of the founding events of the EU, the “Declaration of Independence” of Europe and argues that its wording is messianic in both rhetoric and substance. However, the Schuman Declaration did not mention democracy or human rights. According to Weiler the messianic legitimacy is part of the reason why the Union can function without a real commitment to democracy and human rights and at the same time demand its members to be part of the ECHR and to prove their democratic credentials. The position of Weiler can be criticised on the ground that the EU is not a state and cannot be fully compared with a state. Instead it is an organisation with members from different legal families and political beliefs, so it is quite obvious that there compromises are needed in order to reach agreements.
However, Weiler argues very convincingly the “the result is that if political messianism is not rapidly anchored in the legitimation that comes from popular ownership, it rapidly becomes alienating and, like the Golem, turns on its creators” (see at 693). While the necessity of the popular ownership of legitimation is quite clear, it difficult to imagine the Union, which is still a supranational organisation, without direct links to the member states and to national governments.
Weiler’s critique of the Union is especially severe in relation to the lack of political power. Among other things he talks about the “embarrassing Copenhagen climate fiasco” (see at 680). However, he does take into consideration that for the failure of the Copenhagen world climate conference one cannot only blame the Union, even though the it was held inside its borders. The conference was a follow up of the UN’s Kyoto Protocol of 1997 and involved almost all states in the world. To say that it was only Europe’s lack of political power is an argument that can be easily contested. Weiler’s accusation is directed at the wrong organization.
Weiler takes into consideration also the incident in former Yugoslavia and the genocide that occurred in Srebrenica. He claims that the incident there, like later in Libya, was a failure by the Union to control its own members and neighbouring states. He argues that Europe has an urge to call in the “cavalry” from the US when the political power fails. This is another argument used by Weiler that can be challenged. Yes, the Union might have had a better control of what actually was about to happen in former Yugoslavia, but the fact is that according to international law the UN has to issue a resolution to permit a state to intervene in another state. The UN then almost exclusively gives the mandate to the NATO to lead the intervening force, and the NATO is often led by the USA. The same goes for the recent events in Libya. Since the Union does not have its own military force, one single state has to enter another state to intervene. This cannot be done without a resolution and the resolution will, indirectly, give the USA the mandate to intervene.
Concluding, on the one hand, democracy, legitimacy and political will are core concepts of the Union, on the other hand, the Union is not a sovereign state and should not be compared to one to the extent that Weiler does. It is an international organisation with members with different political and legal systems, and in order to make it work there need to be some compromises. If you focus on the goals of the Union (peace and security, cooperation and free movement, democracy and human rights), you will certainly not find a “promised land waiting down the road”, but if the member states can agree on these goals then the Union is just a tool to get there.