Parliamentary Assertionand Deep Integration

Parliamentary Assertionand Deep Integration:

The European Parliamentinthe CETA and TTIP Negotiations[1]

Christilla Roederer-Rynning[2]

Abstract —Scholars have long viewed parliamentarians as parochial actors having little interest, or incentive to engage, in international diplomacy. Yet, parliaments have recently taken on a very active role in various international negotiations. This article explores the role of the European Parliament (EP) in the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the EU-US Transatlantic Trade and Investment Partnership (TTIP) negotiations. Drawing on classic institutionalist insights, it develops the concept of parliamentary assertionandexplores its usefulness through a combination ofcomparative and process-tracing analyses. The conclusions are threefold: 1) the EP has asserted its power in international trade matters beyond the simple power of consent; 2) the EP’s search for legitimacy in the EU polity drives this phenomenon; and 3) this phenomenon is significant beyond the current CETA and TTIP negotiations.

Keywords: EU FTAs; parliamentary assertion; European Parliament; TTIP; CETA

Introduction

‘Free trade has always been a hard sell’ (Irwin 2016, 95), thus it is not surprising that trade liberalization meets political resistance. How societies and political elites respond to international trade liberalization, and why they respond the way they do, however, remains a puzzle. Until recently, political conflict around trade liberalization was largely confined to a battle between interest groups, typically pitting export-oriented producers against those producing for thehomemarket. Quiet diplomacy and bargaining often solved these conflicts and only rarely was the broader public involved. Today, by contrast, trade has become a broadly contested issue, politicized across the globe (Young 2016 and 2018b). In the US, anti-trade sentiments permeated the 2016 presidential elections. President Trump has now withdrawn the US from the Trans-Pacific Partnership (TPP), as he pledged to do during the presidential campaign. European countries, likewise, have entered a new territory of trade politics, evidenced by recentmassive anti-TTIP demonstrations—a territory carved by rising new institutional reliefs, shaped by the shifting sands of ideology, and battered by popular storms.

An interesting new literature has emergedon the politicization of international trade agreements (De Ville and Siles-Brügge 2016; Gheyle and De Ville 2017). This articlecontributes to this literature by focusing on the parliamentary dimension of these agreements, with a focusonthe European Union (EU).Parliaments are important to study because of their pivotal position at the crossroads between institutional politics and extra-institutional politics. Johan P. Olsen (1983) has aptlycaptured this pivotal position by referring to parliaments as both policy-makers and interpreters. As ‘policy-makers’, parliaments seek to shape the redistributive outcomes of policy-making; as ‘interpreters’, they aim to shape the political reality of the negotiations. Thus, parliaments are likely to serve as the fulcrum of specific constituencies, citizen groups, and organized interests’ political mobilization, thereby contributing significantly to the politicization of twenty-first century EU trade policy.

This article argues that understanding the politics of contemporary trade liberalization requires exploring the phenomenon ofparliamentary assertion. Parliamentary assertion refers tothe process by which parliaments institutionalise their power in everyday policy-making. The study of parliamentary assertion invites exploration of how parliaments interpret their constitutional rights and give them substance through procedural activism, knowledge-building, the mobilization of value, and administrative capacity-building.The study of parliamentary assertion is analytically different from the study ofparliamentary oversight,lawmaking, or budget-making, even though all of these processes are obviously interrelated. Parliamentary assertiondraws theattention to the reflexive moment when parliamentary actors interpret their constitutional powers and bring them to life, crystallising parliamentary identity. As Selznick once put it, technical organisations become living institutions by being ‘infused with value beyond the technical requirements of the task at hand’ (quoted in Scott 2001, 24). This paper focuses onhowtheinstrumental, normative, and symbolic logics underpinning parliamentary assertion potentiallychange trade policy-making beyond the formal constitutional requirements at hand.

Thefocus of this articleis ontheEP.There are several reasons why the EP is an interesting parliament to study.First, the EP is the most powerful parliament in Europe in trade-related matters given that trade policy is an exclusive competence of EU institutions, and that recent EU Treaties have granted it important competences in this domain (Rosén 2016). Second, the fragmented structure of the EU’s political system is more conducive to parliamentary assertion than that of domestic parliamentary systems(Jančić2017). Finally,the deep and comprehensive agenda of contemporary trade liberalization negotiations is particularly salient for the EP, given the mobilization of diffuse interests it has provoked. Scholars have indeed tended to view the EP as an advocate of diffuse interests (Pollack 1997; Burns et al 2013). This does not mean that national or regional parliaments have become obsolete (Adriaensen and Neuhold 2017; Roederer-Rynning and Kallestrup 2017). Rather, it means that the EPismostlikely to assert itselfforcefully on contemporary issues of trade, making it an appropriate starting subjectofinquiry.

This article’sargument develops infoursections. The first introducesthe puzzle of parliamentary assertion. The second presents an institutionalist framework to explorethe EP’s assertion. The thirdspecifies this framework in the context of deep integration—the process of ‘agreeinginternational rules governing domestic policies to mitigate their adverse trade effects’ (Young 2018a, this issue). The final section containsan empirical exploration of the EP’s role in the CETA and TTIP negotiations. This section draws uponprimary materials and combines a comparative and a processtracing analyses.

Puzzling Parliamentary Comeback

International affairs have long been the domaine reservé (reserved domain) of executive actors and an inimical terrain for parliamentary actors. An overriding concern for local issues, lack of specialization, short-term political horizon, and an innate distaste for secrecy—all these features of democratic institutions that 19th century observers saw as antithetical to the conduct of foreign policy (Tocqueville 1835-1840), arguably create disincentives for parliamentary involvement in global governance (Slaughter 2004). Recently, Farrell and Newman (2010, 611) have argued that ‘it is increasingly the case that powerful actors compete to set the rules of international market regulation … without the formal consent of national legislatures’. These scholarssuggest that parliamentarians are no more natural-born diplomats today than they were in Tocqueville’s era. They remain ‘resolutely “national”, or even parochial … the high turnover among legislators, whose terms in office are typically short, gives them little incentive to invest in long-term relationships with their foreign counterparts, who themselves will be likely to change’; finally, ‘they [parliamentarians] … deal with a wide array of issues and interests’ which makes it harder for them to identify “natural counterparts” and build an ‘enduring position in the political power structure’ (Slaughter 2004, 105-106). Today’s diplomats are, to a certain extent, executive actors of a new kind—no longer statesmen, but specialists mastering the technical complexity and details of regulation and working in insulated technical fora. Nonetheless, they are executive actors.

Therefore,parliaments’ increasing interestinglobal governanceis puzzling. The EP provides the most spectacular case of this phenomenon. In the space of a decade, the EP has established itself as a ‘world leader in parliamentary diplomacy’ (Jančić 2015, 339). Its international positions have spanned various policy domains, ranging from security concerns and the protection of civil liberties, to financial harmonization and trade. It hasaddressed these issuesin a variety of ways:enacting domestic legislation with extra-territorial effects;ratifying (or not) international agreements; implementing international agreements through domestic legislation and budgets; organizing public consultations and/or quasi-judicial investigations;launching international advocacy campaigns(typically in relation to human rights, parliamentary affairs or democratic practices); developing transnational legislative networks or meetings (e.g. parliamentary conferences); andestablishing international parliamentary institutions (Bieber 2002; Slaughter 2004; Weisglas and De Boer 2007; Šabič 2008; Monar 2010; Ripoll Servent 2015; Richardson 2012; Costa et al. 2013; Van den Putte et al. 2014; Eckes 2015; Jančić 2015a).

This articleexplores this puzzling phenomenon through the institutionalist lens of parliamentary assertion. Parliamentary assertionis the process by which parliamentsflesh out their constitutional rights and competences. Having powers and exercising them constitutetwo different processes. After constitutional empowerment comes the institutionalisation of parliamentary power. The EP must develop rules, procedures and organisations; it must harness a sense of common purpose to gain political significance. The institutionalisation of power is the moment when the EP can step out of the shadow and assert itself as a significant actor.

Social BasesandRepertoireofEP Assertion

Classic institutionalist accounts have shown thatinstitutionbuilding does not take place in a social vacuum. The emerging institutional nucleus must reckon with concrete power forces in the surrounding community. As Huntington (1965) put it, in order to exist, an institution must ‘exist apart’ from its own environment – which, in turn,potentially creates tension or imbalance betweenthe would-be institution and that environment. In such situations, institutionbuilding might involvethe development of (informal) power-sharing mechanisms, such as cooptation. In a classic account of the US New Deal Tennessee Valley Authority (TVA), Selznick (1949, 260) argued that the need for cooptation is particularly pressing when ‘formal authority is actually or potentially in a state of imbalance with respect to its institutional environment’, either because it does not reflect the balance of power in the surrounding community,or because it lacks ‘historical’ legitimacy or is ‘unable to mobilize the community for action’ (1949, 260). From this perspective, the EP can be conceptualized as a ‘formal authority’ with legitimacy-seeking imperatives stemming from the political hegemony (both material and cultural) of Member States and their institutions in the Euro-polity (Sbragia 1990). While claiming to be a parliament like any other, the EP must find its place in a democratic polity of a new kind: a ‘demoi-cracy’ that is young, weakly-centered,and culturally as well as linguistically plural (Nicolaidis 2004; Cheneval et al 2015). This means that EP assertion, more than it is the case in any other parliament or perhaps even in any other policy-making authority in the EU, must either rely on informal power-sharing mechanisms to coopt Member States or, in Selznick’s words, mobilize the community for action.

Theseinsights direct attention to the role of diffuse interest groups as the hinterland of EP assertion. These groups advocate in a broad range of areas related to the transparency of public affairs, the defense of human rights, environmental advocacy, animal welfare activism, or labor and consumer protection.These groups play a critical role in EP assertion for several reasons.As far as the EP is concerned, societal interests’mobilization responds to a legitimacy-seeking logic. As the only EU institution elected by direct universal suffrage, the EP is not only a ‘policy-maker’, in Olsen’s sense, but also can pretend to ‘interpret’ the willof EU citizens. The EP’ssurvival and development arelinked to its ability to give plausible expression to the idea of popular representation. The EP’s long-standing need for institutional assertion, together with the limited basis of its popular mandate (43% turnout in each of the past two elections), combine to make it an ally of diffuse interests. Diffuse interests are an apt metaphor for this idea of popular representation while enabling the EP to tap into a segment of the citizenry that is eager to mobilize. As for diffuse interest groups, EP protection can provide them both access to decision-making and resources that alleviate their notorious collective action problems (Olson 1968). Diffuse interest groupsare especially prone to the free-riding problem described by Olson (1968) given that the good they seek to achieve have a quasi public good quality.[3] However, as public policy issues salient to diffuse interests migrate upward to the EU level, relatively open access to the EP and economies of scale(e.g., pooling of expertise, development of synergies) reduce the costs of mobilization, thus mitigating the effects of free-riding. In turn, as diffuse interests can more easily mobilise at the EP level, they will tend to gravitate tothe EP (and the Commission) and support the assertion of these institutions.

Existingscholarship provides some evidence of elective affinities between the EP and diffuse interests. In the mid-1980s, a few years after the introduction of direct elections to the EP, scholars argued that the EP had developed a distinctive political agenda focusing on ‘controversial matters among the public at large’ (Bourguignon-Wittke et al. 1985: 42). Reliance on popular suffrage had made members of the EP (MEPs) ‘more inclined to represent the nine-tenths of the population who are not in the farm sector’ (Pinder 1991: 89). More than a decade later, Pollack (1997, 580-1) argued that ‘as the Community’s only directly elected political organization’, the EP ‘has acted not only as a competence-maximiser like the Commission, but also as a champion of the environment, consumers, women, and other diffuse but electorally popular causes’ (see also Judge 1992; Weale et al. 2000; Burns 2005). Recently, however, some scholars have claimed that the EP has become a less green and citizen-friendly institution, as it has been caught in the Council’s web of consensual decision-making (Burns and Carter 2010; Burns et al 2012; Rasmussen 2012; Ripoll Servent 2011; Ripoll Servent and MacKenzie 2012). This debate warrants consideration when assessing the EP’s role in contemporary trade negotiations.

Turning to the repertoire of parliamentary assertion, this articledistinguishes between three types of social actions undertaken by parliaments: procedural activism; knowledge-building; and international advocacy (Table 1). Procedural activismencompasses the actions constitutionally open to the EP in the context of the formulation and adoption of EU trade agreements, as discussed above: accessing information throughout negotiations, ratifying the agreement, and enacting implementing legislation. Procedural activism does not just serve to ‘disambiguate’ constitutional uncertainties. It can flesh out a role unanticipated by the ‘master of the treaties’. The EP has a long track record of inventively usingexisting rules and procedures to expand its powers beyond its constitutionally granted perimeter. This has enabled the EPto develop leverage in areas traditionally characterized by intergovernmental decision-making and to influence European Council decision-making (Farrell and Héritier 2004 and 2007; Piris 2010; Puetter 2013).The EP has also adeptly used litigation to improve its right to information in the context of the conclusion of international agreements under the Lisbon Treaty (218(10)TFEU).[4] The formal legal rights of the EP and their confirmation by the CJEU have been central to the EP being able to gain leverage in the fields of foreign affairs and justice and home affairs (Cremona 2015; Trauner and Ripoll Servent 2016)

Table 1 here

Knowledge buildingrefersto the range of actions through which the EP can develop a capacity to formulate independent policy goals and development strategies. Given the technical complexity of EU trade policy-making, a key component of EP autonomy is itsdevelopment of reliable and high-quality in-house knowledge. Knowledge does not justhelp the EP to perform its policy-making functions. Knowledge can also help the EP compensate for its exclusion from legislative initiatives by shaping long-term policy agendas and incubating ideas for change. In this sense, knowledge building is inseparable from institutional assertion. Scholars have long recognized this link. As Furner and Supple (1990, 31) write ‘the institutionalization of public processes from promoting and applying economic knowledge is…connected to [institution] building’.

Finally, international advocacyencompasses the actions that interpret the political reality of the trade negotiations for a broad international public, including political elites, social entrepreneurs, and the media. Examples of such actions include diplomatic visits hosted at the EP and by MEPs, official letters of the EP President, etc. Given the peculiarity of the EP as the only EU institution directly elected by universal suffrage, international advocacy involves widely shared standards of accountability and legitimacy.

The Context: Deep Integration

Bearing these conceptual considerations in mind, two important contextual developments warrant consideration in examining the role of the EP in contemporary trade negotiations.First, the agenda of international trade liberalisation has changed considerably over the last decades, leading to a growing mobilisation of diffuse interests in trade policy-making. Fundamentally, trade liberalisation today is no longer primarily about removing obstacles at the border, but about promoting and managing deep integration. As Baldwin (2011, 28) famously wrote, the agenda of 21st-century trade is about the ‘foreign factories in exchange for domestic reforms’. This evolution manifests in trade agreements, which have becomeincreasingly ‘deep and comprehensive’. Not only do these new agreements aim at integrating markets (depth); they also tend to cover a large range of issues including, for example:services liberalization, procurement markets, competition policy, investment protection, intellectual property rights (comprehensiveness). The idea is ‘to ensure that the scope for expanded trade is not frustrated by differences in regulation, market institutions, technical standards and taxes’ (Brülhart and Matthews 2007, 964). At the same time, many of these issues of deep integration are politically sensitive. Take the issue of the liberalization of public services, for example, which ‘most people would agree…is an issue which should be discussed and decided by citizens rather than through the technocratic processes of multilateral agreements’ (Brülhart and Matthews 2007, 942). A persistent tension between on the one hand the need for regulatory cooperation, and on the other hand the growing unpopularity of ‘domestic disciplines’ thus characterises the changing international trade. Scholars from a variety of theoretical traditions agree that the changing international agenda is an important reason why diffuse interest groups, abandoning decades of inaction,now mobilize widely against trade liberalisation. The issues have become so salient that these groups cannot afford to not engage in trade politics (Dür and Mateo 2014; Young and Peterson 2014; Young 2016; De Ville and Siles-Brügge 2016).In turn, as citizen groups mobilize and seek to influence trade policy-making, they must also find institutional allies. The EP is an attractive point of access for these groups given itsformal authority to represent EU citizens and its enduring quest for legitimacy.