Are Conventions Outdated? Lessons for Europe from Chile
In the run-up to the EU Council Summit of 23-24 June, the German Minister of Foreign Affairs Annalena Baerbock called the idea of a holding a Convention for EU Treaty changes outdated. She stated “I have no intention whatsoever of simply taking twenty-year old recipes out of the drawer.” Baerbock wasn’t the only sceptic in the room vis-à-vis the European Parliament’s call for a Convention, adopted ahead of the Summit in a resolution on 9 June. The Council Summit only marginally addressed CoFe and didn’t even mention the call for a Convention. A Convention will hence not be launched under the French Presidency of the EU, as no simple majority among EU Member States has been found.
While the predominant critique of a Convention seems to stem from a rather conservative, status-quo-oriented and sovereignist attitude, such a position cannot necessarily be attributed to the ‘Green’ German Minister. In fact, whatever her real intention, in one way Baerbock might actually be right. The call for a Convention – through article 48 of the Lisbon Treaty – does in fact invite the EU to initiate a top-down, technocratic process that is wholly dominated by the institutions and politicians. By contrast, the CoFe– in an unprecedented way – put citizens first. In the 1990s the Convention-method was a novelty. Thirty years on, it might be in need of updating.
The instrument of a European Convention is out of touch with the recent participatory turn in constitution-making. One clear example of the latter is the recently held Constitutional Assembly in Chile. As recently discussed in the EUI-STG Democracy Forum of 10 June, Chile may provide important lessons and insights for a participatory process of European democratization.
Contestation over an EU Convention
Before turning to Chile, let us first consider what has been going on in the European context. The CoFe – a year-long pan-European discussion on the future of the EU, including both citizen deliberation and an inter-institutional debate on recommendations in its Plenary – came to an end on 9 May, with the presentation of a final report of 49 recommendations and 329 specific measures to the presidents of the three EU institutions. The Conference promised a substantial form of citizen engagement, constituting in this regard a unique transnational and multi-level democratic experiment.
As of now, it remains unclear what – if any – the exact follow-up to the Conference will be. After the presentation of the final report on 9 May, 13 Member States articulated a hesitant if not hostile response. These 13 states called – by means of an open letter – for a cautious approach regarding any Treaty change. The Commission, in contrast, fully endorsed the EP’s resolution for starting up a Convention under art. 48 TEU. Of the three institutions, it has been the EP that has taken the clearest ‘activist stance’ in calling for a Convention and hence requesting the opening of the Treaties with its Resolution of 9 June, using the potential political – and perhaps constitutional – momentum in the wake of the Conference.
The Convention would be one way of following up the CoFe. A minority of citizens’ recommendations appear to call for Treaty change. Nevertheless, the proposed reforms themselves include significant changes: for example, abolishing the unanimity rule, the creation of EU-wide referenda, the adoption of a right of initiative for the EP, the creation of more permanent forms of EU citizens’ assemblies (depending on their nature in terms of institutionalization and bindingness), the direct election of the EC’s president, or the amendment of Article 7 procedure regarding sanctions for backsliding states.
What kind of Convention?
Even in the European Parliament, the idea of Treaty change is not uncontested. Admittedly, the EP resolution was endorsed by a large majority of 355 votes. But in the run-up to the vote, the construction of a ‘coalition of the willing’ proved not without obstacles: the Left, the Greens, and Renew came to a certain degree of consensus, but there were clear difficulties trying to get the more divided EPP on board. A core issue the EPP opposed was the explicit reference to the centrality of citizen participation in EU legislative processes. The final resolution required significant concessions in order to appease the EPP. Hence, even in the Parliament, the issue of creating structural, sustained forms of citizen participation in EU legislative processes proves importantly disputed. This raises the question of continuity with the CoFe and its promise to put the citizen at the centre of the future of Europe.
In fact, the EP resolution itself did not stipulate any kind of citizen involvement in a future Convention, but invoked a ‘conventional convention’, in accordance with the Ordinary Revision Procedure of art. 48 TEU. Such a convention will see the interaction of institutions as well as stakeholders, but will not explicitly or formally involve a citizens’ component. Von der Leyen’s original call to put the citizen at the heart of the process remains hence circumscribed, it seems, to the CoFe event itself. It is not, in any way, intended as part of a wider institutional overhaul.
Even in the event the Council decides at a later stage to go ahead with a Convention on the basis of art. 48 TEU, it is prone to endorse the classical Convention method, in stark contrast to a more innovative, participatory process which prominently engages European citizens. Sooner or later a Treaty reform process will be necessary – some make the pertinent argument that before any future an enlargement (particularly significant is the candidate status of Ukraine) the EU needs serious reforms. A Convention which would not include an explicit citizen-component would risk repeating the debacle with the Convention on the Future of Europe of twenty years ago. It would be also dramatically backward in comparison to processes of constitutional reform elsewhere.
The Chilean Experience
The recent Constitutional Convention in Chile has been hailed as a ‘grassroots project’ and a ‘triumph of inclusion’for including the everyday citizen. In Chile, it was huge social uprisings in the country from October 2019 onwards that ultimately resulted in a call for a new constitution. Social and political pressure eventually induced President Piñera to give in to persistent demands from below. The subsequent Chilean process has been likened to a model of post-sovereign constitution-making, due to its insistence on legal continuity with the existing constitution, rather than disruption, and the fact that the process is grounded in a multi-party consensus and abides by a limited, non-revolutionary mandate for the convention. The process began with a consultative referendum designed to verify citizens’ endorsement and their preferences regarding the set-up of the assembly and a Constitutional Convention was then elected by general vote. A ratification of the new constitution in a confirmatory referendum is envisaged for 4 September 2022.
While citizen participation in the form of deliberation – as in CoFe citizens’ panels – was not planned for the process itself, and the Chilean convention was grounded in a ‘competitive democracy’ logic, the process did involve a number of ways in which citizens could directly participate throughout. The convention’s regulations envisaged public hearings, a digital platform, and popular initiatives allowing civil society, indigenous peoples and youth to present proposals which need(ed) to be treated on a par with proposals by convention delegates when a minimum of 15,000 signatures from at least four regions had been gathered.
A number of dimensions stand out in the Chilean experience. First, the process has a strong bottom-up component due to its origins in the major upheavals of 2019 and the dramatic decline in popularity of the President and major institutions. Second, the inclusive nature of the subsequent reform process, particularly in relation to structurally marginalized indigenous peoples and a strong emphasis on gender balance. Third, the continuous mobilization from below, not least in the form of the so-called cabildos. Society puts incessant pressure on the whole process, and in particular on the conservative right-wing forces, including those that seek continuity with the Pinochet era. Fourth, a sceptical, anti-establishment attitude of citizens’ movements and the general electorate with regard to party politicians. This resulted in a Convention dominated by independent and civil society activist representatives, and only a minority of participants from traditional political parties. This also means a significant tension between forces endorsing change through a new constitution, and those that attempt to halt the process.
Too different to be relevant?
Without a doubt, the nature of the Chilean process is very different to the debate around reforming the EU. While in Chile the bottom-up pressure has been massive, leading to a relatively inclusive process, the EU debate has been one-sidedly orchestrated, top down, by the EU’s institutions. Clearly, CoFe has suffered from a lack of attention from the wider European public. Pressure for reform hence stems largely from political forces in the EP and from dedicated civil society actors, such as Citizens Take over Europe, comprising civil associations such as Democracy International, EuMans, and MehrDemokratie.
The stakes in Chile also seem higher given the country is dealing with the contentious authoritarian past of the Pinochet era as well as decade-long neoliberal economic policies which have led to massive inequality. The call for justice in such a post-authoritarian context is clearly more acute. An important part of the original demands for changes in the Convention were radical, for instance, in terms of allowing citizens’ initiatives to be directly introduced into the constitutional draft. While many radical demands have since been side-lined, the constitutional draft does contain norms for the inclusion and empowerment of marginalized groups, extends participatory instruments such as abrogative referendums, and endorses the right to initiate constitutional reform and even to call for a new constituent process. In fact, the constitutional convention in Chile had the explicit mandate to draft an entirely new constitution, whereas the CoFe had an at most implicit pre-constituent function, while its mandate beyond open-ended deliberation has remained unclear to this very day.
Yet too similar to be ignored
Despite major differences, there is much Europe could learn from the Chilean process. Though far from perfect, the Chilean Convention has nevertheless shown it is possible – and even productive and creative – to structurally include citizen participation in a process of constitutional reform.
In fact, one could also identify significant similarities in terms of constitutional politics. In Chile, the whole constitutional reform process risks a fiasco in the upcoming referendum in September, with around 45% of citizens indicating an intention to vote against the new Constitution. Meanwhile, (radical) right forces are mobilizing to sabotage the process. There is clearly a stand-off between progressive, societal forces that seek wider participation, inclusion and justice for the marginalized, while conservative forces (including even the recently elected president Boric) cling to the old institutions (such as presidentialism) and seek continuity.
This is, ultimately, reminiscent of the stalemate around the European Convention. The core cleavage appears to be between those that want more integration to be accompanied by more citizen participation, on the one hand, and those who, on the other, stress the status quo, the sacrosanct nature of national sovereignty, and who are sceptical towards citizen participation. The latter conservative forces decry a ‘mission creep’ towards federalism and a ‘European State’, and in the name of representing the ‘authentic’ European citizen, seek to derail the Conference of the Future of Europe and its follow-up.