That’s Just How It’s Built
The Future of the European Security Architecture was the title of a most fascinating conference I attended this week in Amsterdam. Its yields will be published as a blog symposium on Verfassungsblog soon; no need to give away too much here already. What I find interesting, though, is already the title, particularly the seemingly least conspicuous of the words within it: architecture.
The European Security Architecture. You hear that a lot these days. It seems to make intuitively sense, that term, particularly in conjunction with Europe. Or does it? What exactly does that denote? What does it evoke? And to which purpose?
Obviously, the word architecture is a metaphor here. It is an image, an analogy. It asks us to imagine the thing whose “architecture” we are talking about in the image of a building.
Building metaphors are nothing new when it comes to state and government, of course. I am old enough to remember those three pillars supporting a gabled temple roof the European Union used to describe itself with, which still are visible within the contemporary EU setup like the Ancient Greek columns in the walls of the Syracuse cathedral. The multi-layered structure of the EU governance system seems to lend itself particularly well to this architectural metaphoric language: the complex interaction of numerous institutions and agencies on the national and supranational level, a dazzling array of powers and competences, a mesh of arcs and columns, painstakingly and artfully calibrated against each other so that they prop up and support one another, the metaphor suggests, and allow for building ever higher up into the sky, towering pillars leaving room between them for light entering the space within through magnificent multi-colored stained-glass windows, ad maiorem gloriam dei. And it is not at all certain that it is humans who are supposed to actually live in this building, and not some higher being the existence of whom is very much a matter of belief.
The image this architectural metaphor evokes is also very much a static one. Buildings are made of stone, concrete and steel. Immobile, eine Immobilie, as we say in German, tall and erect, and built to last. Its design, its functionality, its aesthetics can be discussed, of course: Architecture critics are welcome to voice their opinions. But actually changing it is a different matter. The whole structure, its static, its supply and disposal lines follow one big rational blueprint that can’t be tinkered with, can’t just be adapted and evolved as the situation demands without risking the dysfunctionality or even the collapse of the entire structure. At least the landlords and the inhabitants, if they consider any such adaptation, must consult the architects who have originally drawn up that blueprint or at least are qualified by training and experience to read and handle it properly.
Finally, and perhaps most importantly, the architecture metaphor evokes a house, a secure space for those who inhabit it, which is why it appears perhaps particularly plausible when it comes to security. Europe as a house is also a very old trope, much older than the European Union of today. Michail Gorbachev comes to mind, of course, his phrase of the „common European house“ he coined in Prague in 1987, two and a half years before the fall of the Berlin wall and five years before the signing of the Maastricht treaty, a house with many rooms under a common roof for the European peoples to live in as peaceful next-door neighbours. The first, to my knowledge, to describe Europe as a house was a renaissance humanist from Siena named Enea Silvio Piccolomini, who spoke before the Reichstag in Frankfurt in 1454, one year after the Turks took Constantinople, in a fierce call to defend the European house against the Asian and African invaders in the South-East who had conquered the seat of the Roman Empire, nobis tacentibus, ne dicam dormientibus, while we were silent, if not to say asleep. Four years later Piccolomini turned into Pope Pius II, Bishop of Rome and successor of Saint Peter, the stone the Catholic Church is built upon, and an architect of his own right, as anyone who has visited the scenic Tuscan town Pienza he built and named after himself can testify. At about the same time, far east, Grand Duke Ivan of Muscovy picked up the toppled imperial orthodox crown and put it on his own head to call himself and his heirs Czar ever after.
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The European house, then. A house has walls, and it has a roof, both to keep out the adverse elements and to keep those within smug and safe. And so does the European Security Architecture. The walls are being built as I speak. The European external border will be heavily fortified as the European architects / landlords at the EU summit last week confirmed, and all those migrants from Asia and Africa will be considered adverse elements, bad weather, so to speak, and their smugness and safety in the Polish forests, in the Bosnian mountains, on the Greek islands, and in the Libyan torture prisons are no more a concern for the smug and safe inhabitants than raindrops on the window pane. Labour, energy, manufactured goods and services are channeled in and out through invisible pipes as the inhabitants go after their business without a care in the world that is so well-ordered and secure thanks to the foresight and competence of those benign modernist architects who designed it to match all their needs.
Europe, the metaphor further suggests, is a piece of real estate, a property to be developed at the will and for the benefit of those who own it, as opposed to those who don’t. The architects are tasked, of course, to provide for doors and for reception areas, for interfaces with the environment outside the walls and confines of the property. But the property itself is a given, a precondition that any building on the territory can take place at all. Who are the landlords, who are the tenants, who are the trespassers? That needs to be settled before any building can occur. That will be built into the building. In stone, concrete and steel. The architects work at the pleasure of their awarding authorities. They don’t own the building, nor do they live in it.
Metaphors highlight certain things, at the expense of other things. They obscure as much as they enlighten. The European house we are inhabiting, if we want to stick with that metaphor for a minute, is a house of tremendous strife and conflict. Some of the apartments in the common European house are occupied by folks who are up to no good, and who command a growing share in the real-estate funds that owns the whole place, and the management’s attempts to bring them to order seem most of the time awfully ambiguous and half-hearted at best.
What’s more, the environment we built all these walls and roofs to keep out for, is by no means content to be merely the environment any longer. Climate change is happening. The very ground on which we built is slipping away beneath our feet. The very roof above our heads is about to be blown off. Whatever space we will inhabit, it will most certainly not be smug and safe. And the more evident this becomes, the more desperate some are clamoring for ever more fortification, ever higher and stronger walls, and the fiercer the conflict becomes between them and those who call for a recalibration of that whole inside-outside business, ever more desperately in their turn, too, as the climate deteriorates and their future and hope for smugness and safety evaporate, glueing themselves to the territory and obstructing the smooth flow of goods and people, so who is a danger and who is a safeguard for European security now?
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Das Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht lädt in Kooperation mit der Württembergischen Landesbibliothek Stuttgart zu der Vortragsreihe „Ukraine?!- Völkerrecht am Ende?“ ein. Am 01.03.2023, 18h, widmet sich Silvia Steininger der Frage „Russlands Ausschluss aus dem Europarat: Welche Zukunft für die Menschenrechte?“
Informationen zum Programm und zur Teilnahme in der WLB
Link zur Online-Teilnahme
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So, what should we call what we are calling European Security Architecture, if we don’t call it architecture any more? I don’t have an answer to that. It’s just a metaphor after all. All I am saying is: let’s not fool ourselves. No one has a blueprint for what is ahead. The space we are inhabiting will have to be adaptable, open to evolve in rapidly and drastically changing environments, including a reevaluation of what it means by that term environment, if it wants to last for at least another while. It will have to absorb tremendous conflicts which need to be had, not prevented, as dangerous and disturbing and upsetting as they may be.
EU lawyers, it seems to me, are often not overly political nowadays (the Amsterdam conference I attended, by the way, was a marked exception in that respect). In Germany at least, compared to ten years ago, EU lawyers who make their voices heard as public intellectuals have become a rarity. My hunch is that the reason is a widespread constitutional fatigue, and to some extent I can even see why that is after all the endless frustrations of the last crisis-ridden decades. The conflict between Eurosceptics and Europhiles seems pretty much to be a thing of the past, too, as even the post-fascists have come to the conclusion that Europe, if handled in a certain way, serves their purposes rather well after all. It’s all so damned frustrating. So, why not focus on regulation intricacies and recital counting like in the jolly old times before everything became so complicated?
Meanwhile, nobis tacentibus, ne dicam dormientibus, the European Union might be about to turn into something rather nasty. If that happens, then that’s not because it’s built that way. It’s because we let it.
The week on Verfassungsblog
… summarised by PAULA SCHMIETA:
One year after the start of the Russian invasion of Ukraine, ANDREAS SCHÜLLER reflects on the ways to pursue accountability for international crimes committed by Russia. Instead of creating a special tribunal, he suggests changing the Rome Statute or founding a hybrid Ukrainian-internationalized institution. HANNAH BIRKENKÖTTER evaluates the Russian war in Ukraine related proceedings within the UN, focussing on the General Assembly’s Emergency Special Session. Although none of the proceedings had or are likely to have an immediate effect on the war, they reaffirm the current international legal order. And this, so Birkenkötter, is – when it comes to international law – what matters.
In 2022, the Spanish Mar Menor lagoon and its basin were granted legal personality by way of the “Mar Menor Act”. In Europe, the lagoon is the first natural entity carrying subjective rights. MARIE-CHRISTINE FUCHS analyses the Act’s legal foundations, which are currently being challenged before the Spanish Constitutional Court.
JEAN-PHILIPPE FOEGLE reviews the EctHR’s judgment on the Raphael Halet whistleblowing case. According to Foegle, the Strasbourg Court continues to fall short of providing whistle-blowers a safe way of expressing concerns publicly.
The reintroduction and continuation of border controls by member states of the Schengen Agreement might get the freedom of movement the axe. ANNA KATHARINA MANGOLD & ANNA KOMPATSCHER look at the situation at the German-Danish border.
Around the turn of the year from 2022 to 2023, Sweden and Denmark respectively announced that the Taliban’s conquest of Afghanistan has made the lives of Afghan women and girls so difficult that they must be granted refugee status solely based on their gender. ANNA HØJBERG HØGENHAUG explores the changing asylum law landscapes of Denmark and Sweden.
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„Als spezialisierte Kanzlei für öffentliches Wirtschaftsrecht mit Schwerpunkt auf dem Umwelt- und Planungsrecht suchen wir zum nächstmöglichen Zeitpunkt Wissenschaftliche Mitarbeiter:innen. Am Standort in Potsdam/Berlin beraten wir bundesweit Unternehmen und öffentliche Aufgabenträger. Auf Sie warten interessante Projekte und aktuelle Fragen zur Transformation in Industrie, Landwirtschaft und im Energiesektor! Gerne ermöglichen wir eine promotionsbegleitende Mitarbeit. Mehr Infos hier.“
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JANNES DRESLER looks at the EU Commission’s recently published complaint against Hungary, which concerns the Hungarian anti-LGBTQ law. The lawsuit embarks on a new path that has the potential to restructure the relationship between the EU and its member states and to secure a common foundation of values, so Dresler.
ESZTER POLGÁRI & TAMÁS DOMBOS comment on the Hungarian Constitutional Court’s decision on legal gender recognition. This, so the authors is a cowardly decision which remains concordant with the perceived political expectations, blatantly serves the interest of the government majority, and echoes their fixation of biologically determined sex.
With regard to the European Digital Identity proposal, JESSICA SCHROERS argues that the introduction of a unique and persistent identifier for every EU citizen could be understandable from a practical point of view but cannot be accepted due to its risks.
Buried in the news on the Israeli Knesset’s judicial reform plans are two bills that substantially increase the government’s power to deprive citizenship and subsequently deport Palestinian citizens convicted of terrorism offences and their family members. ANJA BOSSOW & STAV ZEITOUNI survey and evaluate the rationales used to justify these newly assumed powers and set out why their current design is so insidious.
In the last two weeks, more than 300 Nicaraguan dissidents were stripped of their citizenship. According to KAI AMBOS, what is being punished here is nothing other than the continued criticism of the Ortega/Murillo dictatorship by these citizens. Ambos speaks of an unprecedented step in the modern history of international law.
JULIO RÍOS-FIGUEIROA considers Mexico’s president López Obrador to be part of the club of democratic backsliders, trying to debilitate or eliminate the political institutions sustaining an existing democracy from within. He argues that López Obrador’s electoral reform is the limit beyond which everything changes.
In two recent Colombian cases judges used ChatGPT during the process of forming their judgment. JUAN DAVID GUTIÉRREZ discusses the incidents and urges for a conversation about the digital literacy of the judiciary.
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Anti-Semitism and racism are structurally different. LUKAS DAUM, JEREMIAS DÜRING & CONSTANTIN LUFT argue for dogmatically breaking new ground in the constitutional fight against modern anti-Semitism.
ALEXANDER HOBUSCH investigates this week’s ruling by the Federal Constitutional Court on the financing of party-affiliated foundations. On the one hand, the victory for the AfD seems, on closer inspection, to be a Pyrrhic victory. And on the other hand, the legislature will now face extensive tasks with the new regulation of foundation funding and party funding. MICHAEL KOß & JAKOB SCHWÖRER the obligation the court put on the established parties to define democratic criteria for foundation funding. They speak of a slow-motion accident that the parties have been heading towards for years: potentially anti-democratic activities could be funded under the heading of “political educational work”. An accident that the parties have brought on themselves, so the authors.
In 2022, the Federal Administrative Court ruled that public broadcasters are obliged to moderate content on their social media accounts and to delete user comments without sufficient relevance to the programme. [The reasons for the ruling are now available.] TOBIAS MAST & WOLFGANG SCHULZ see this as a missed opportunity and warn that it weakens public broadcasters vis-à-vis platforms such as Facebook, Instagram or TikTok.
The Hessian coalition government is planning an assembly-“freedom”-law. The catch? It is likely to fail given the Hessian constitution. CLEMENS ARZT takes a closer look at the draft.
That’s it again for this time. All the best to you and see you next week! And as I said, please don’t forget to donate!
Max Steinbeis
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