How do Germany and Greece "share sovereignty"?

The European Union as a whole and Greece in particular are experiencing another crisis in, what it seems, a never-ending downfall. Earlier this week, I had the opportunity to be present and deliver a presentation at the 2015 ATINER Law Summit in Athens. My presentation entitled “Sovereignty Conflicts as a Distributive Justice Issue: the Egalitarian Shard Sovereignty as a New Mode of Governance” was intended to deal with sovereignty conflicts such as Falklands, Gibraltar, Crimea, Jerusalem, and many others within the ideal theory—i.e. as opposed to non-ideal according to Rawls. Therein, it had little to do with Greece, the European Union, the crisis… or at least, I had thought so.

 

When the questions came, after the presentation was done and dusted, one in particular was key: How do Germany and Greece “share sovereignty”? My first reaction was: this presentation is not about already settled issues in legal and political theory. In fact, it has nothing to do with the European Union. But, second later, I realised a key issue in untangling the European Union crisis has undoubtedly to do with the unbalanced power-sharing. Let me explain myself:

 

What does it mean to “share sovereignty”? Advocates of this position apply the label ‘shared sovereignty’ to situations in which there is one sovereign State (usually a weak one) and an international organisation or another State ‘helping’ it in one way or another. In this case, they define it as follows:

 

“[s]hared-sovereignty entities are created by a voluntary agreement between recognised national political authorities and an external actor such as another state or a regional or international organization”. Moreover, “[s]uch arrangements can be limited to specific issues areas like monetary policy or the management of oil revenues.” [Krasner, 2005]

 

Firstly, it is a voluntary actual agreement; secondly, not all the parties need to be sovereign States (they can be recognised national political authorities, regional or international organisations); thirdly, it can be limited to specific areas (the examples given are related to economy and finance).  Some authors assert that weak states could observe this proposal as a solution to their problems since—they maintain—“[l]eft to their own devices, collapsed and badly governed states will not fix themselves because they have limited administrative capacity, not least with regard to maintaining internal security.” [Krasner, 2004] Therefore, international organisations or strong States would be supporting the development in certain areas of States that for whatever cause were considered weak.

There are several reasons that are at best problematic with this conception of ‘shared sovereignty.’ The implications of defining in such a fashion ‘shared sovereignty’ do not agree with a just and fair way of dealing with sovereignty issues. Whilst this account of ‘shared sovereignty’ is theoretically intended to assist weak States and hence may be considered useful—even fair—at first glance, it is both too narrow and too ample. Too narrow in the sense that the weak State sees its actions being dictated by external authorities without much internal input; too ample since the strong agent has the prerogative to be involved in affairs of the weak one without control other than its own good will. For although this model involves already ‘recognised national political authorities’, these scholars presuppose that collapsed or badly governed communities (weak States) cannot dictate for themselves proper policies and create efficient institutions to achieve a sustainable development. So the way to fix these realities—they propose—is to let the strong States be involved in the internal affairs of the weak ones. Yet, instead of presenting shared sovereignty this appears to be a means to dictate to another supposedly sovereign State how to proceed under certain circumstances. Furthermore, what is clear is the fact that both sovereign States—the weak and the strong one—would not have the same level of authority: the strong sovereign State would be determining the advisable actions to be followed by the weak ‘sovereign’ State. In other words, the ‘neo-colonial shared sovereignty’ (as I prefer to call this conception) is uni-directional and unequal (only one of the involved States is the real sovereign, maybe not de jure but, at least, de facto) resulting in one agent dictating the other’s internal policies.

 

Those who are in favour of ‘shared sovereignty’—so defined—maintain that humanitarian reasons support this form of international aid. Violation of human rights, natural disasters and weak economies are only examples of many actual circumstances that make the internal situation of some sovereign States highly volatile. Nevertheless, behind this aura of humanitarian aid strong States would be interfering in the internal affairs of their weak peers. By applying the ‘shared sovereignty’ label in this way, both States seem to be equally sovereign with one of them—the strong one—assisting the other one by being involved in its internal affairs. But although it may seem at first glance that they are equal sovereign powers, they are only equal in terms of their de jure sovereignty; de facto, one of the States is determining, or advising, or forcing, or instructing, the other State’s way of addressing its internal issues. From that angle, these States are not sharing sovereignty; in fact, only one of them is the ultimate authority in regard to certain issues which are actually supposed to be in the sovereign sphere of the other one. Indeed, the ‘sharing’ may be, or become, involuntary.

 

Consequently, to understand ‘shared sovereignty’ as a way in which a strong State ‘assists’ a weak peer does not seem to agree with the nature of the concept itself. The whole theory has been developed so as to justify what may result in a violation of State sovereignty.

 

If ‘shared sovereignty’ is the global tendency with the European Union as the most developed example, the aim should be to offer all the involved international agents a real equal footing at the outset, so as to reach a just and fair final agreement in which all parties are taken into account and have an actual (not only theoretical) say with regards their internal and external affairs.

2015 ATINER Law Summit in Greece

Session I

Prof. Ronald Griffin from Florida A&M University, USA on “Domestic Surveillance” and whether social media should be controlled by central authorities. Prof. Grifiin stated some simple yet interesting facts: who does actually own what we post on the internet? How private can really be the information we send using the web? Whilst talking about the community and the individual and how and why privacy is important in the age of social media, Prof. Griffin focused on how the American central authorities—i.e. FBI, CIA—may have access to information though social media and how these same authorities may use that information under the pretext of national secutiry. “The CIA shouldn’t spy on Americans” he says while remarking that “lawyers should protect democracy”. He finalised with a brief statement contrasting values from which to choose: “to give up freedom and liberty in the name of national security?”

Prof. Tim Bakken, US Military Academy at West Point, USA on “Discovering Innocence in Adversarial and Inquisitorial Legal Systems.” Some of the problems in the criminal legal system have to do with a procedure that focuses on the trial rather than the investigation Prof. Bakken maintains. In reality, important elements that could lead to a determination that a defendant is innocent are overlooked for that same reason. “The system is not based in finding true but the prosecution needs to prove that the party is guilty beyond reasonable doubt” he reminds us. Therein, “what is the percentage of innocent people that need to be convicted to think of changing the system?” But the risk is relevant: to let guilty people be free instead of innocent people going to prison.

Prof. David Papke, Marquette University Law School, USA, on “Postmodern Decline? Belief in the Rule of Law as a Tenet of American Ideology.” After defining basic conceptual elements such as “rule of law” and “ideology” and therefore setting up the stage, Prof. Papke mentioned amongst American’s tenets “the acquisition of wealth is not only possible but also moral.” Therein, Prof. Papke points out some references to the rule of law in American political discourse. Firtly, a striking statement: “the United States respected the rule of law, Kennedy though, but evil communists did not.” And paraphrasing President Obama, Prof. Papke reminds us that “transparency and the rule of law will be the touchstone of this Presidency.” Most of the contemporary jurisprudential thinkers have a more positive insight about the rule of law. To some extent “Americans stop liking law” he argues.

Reader Glenys Williams, Aberystwyth University, UK on “The Demise of Necessity; the Rise of Duress of Circumstances.” Glenys refers to two potential defences on euthanasia and assisted suicide in the UK. She goes through “Necessity” and “Proportionality” in British Case Law and reminds us that “Euthanasia” is a crime in common law jurisprudence whilst “Assisted Suicide” in Statue Law. But she argues, may “Duress of Circumstances” be used as a defence? Reader Glenys goes through several UK Cases such as RvMartin; Lord Hailhams in RvHowe; RvQuayle. Therein, she states the differences between necessity and duress of circumstances. To support her argument she deals with a) firstly, the difference between justification (focused on action, so consequentialist) and excuse (focused on the actor; e.g. Glanville Williams, The Theory of Excuses, 1982; A Norrie, Crime, Reason, and History, 2001). And b) secondly,  threat, characteristics, and reasonable man in duress.

 

Session II

Prof. Dwarakanath Sripathi, Osmania University, India on “Live in Relationship: Vanish Point of Institution of Marriage.” India is a country which has a very high regards for cultural values and religious rituals. Ancient Indian texts such as the Vedas permitted live-in-relationships. In a country with “puts marriage on the highest pedestal” Prof. Dwarakanath says, live-in-relationships are not welcomed. Prof. Dwarakanath reminds us that live-in-relationship is an arrangement of living, under which the couples who are unmarried live together to conduct a long lasting relationship similar to marriage. Prof.. Dwarakanath states that “in a conservative society like India, live-in-relationships are something that law has yet to catch up with.” The Indian Law now: The Protection of Women from Domestic Violence Act 2005 provides protection to women from domestic violence and included women in live-in-relationships; more recently, the Government of Maharashtra in 2008 approved a proposal to include live-in-relationships; Indian Case Law. Prof. Dwarakanath concludes that cohabitation or live-in-relationships in India though not illegal are not socially accepted.

Assoc. Prof. Rita-Marie Jansen, University of the Free State, South Africa on “Medico-Legal Implications of ROP in South Africa.” There is an increase on the amount of claims with regards medical malpractice in South Africa Prof. Jansen informs us. Interestingly, she maintains that the increase has to do with knowledge  being more available to people. For example, nowadays “the public is aware of things such as the Professional indemnity insurance.”

Asst. Prof. Mariette Brennan, Lakehead University, Canada on “Saying No to Chemotherapy: An Examination of the Aboriginal Right to Traditional Medicine.” Prof. Brennan started by introducing two similar cases of two different Aboriginal children that had leukaemia, and whose respective parents decline the use of chemotherapy. One of these children died in 2015. In most cases in which parents refuse medical treatment for their children, the Canadian Court may intervene and put children’s right to life over their parents. But aboriginal rights have Constitutional protection in Canada. There is no justification to limit these rights Prof. Brennan informs us. Therein, “if it was based on religion, the State may intervene. However, purely based on culture, the State cannot.” More recently, there seems to be a trend to accept and recognise aboriginal right to health both socially and in Canadian Courts. But these new trends are opening a “huge Pandora box” Pro. Brennan maintains with question as to how Canadian law may have a marriage between aboriginal tradition and current legislation.

Senior Lecturer Brand Classen, University of the Free State, South Africa on “The Viability of ‘Wrongful Life’ Claims.” Prof. Classen starts by narrowing down his presentation to what he maintains should be called “action for wrongful suffering through disability.”  With examples from South African Case Law, how children may be left without legal protection only because a conceptual change in the interpretation of current legislation.

Senior Lecturer Lisa Mountford, Staffordshire University, UK on “Gender Adjustment in English Criminal Law: Is the Female Voice Really Being Heard?” There are underlying themes that have to do with subjugation of and violence against women Prof. Mountford argues. She says that the general attitude has changed dramatically since 1980s in the UK. That is mainly because of “prosecution work-prosecution attitude” and change in political attitude too with examples such as the Crown Prosecution Service and the Revised Policies Guidance. It seems to be, Prof. Mountford says, easier to have convictions nowadays in the UK. "Have they been successful?” she asks. There are indeed new developments such as the Serious Crime Act 2015 but still an on-going issue. And Prof. Mountford concludes with an striking example: “Female Genital Mutilation Act 2003 but not a single conviction in the UK so far.”