Address by Professor Martin Scheinin, European University Institute Palazzo Vecchio, Florence, 8 May 2015
Mr First Vice-President, Your Excellencies, Ladies and Gentlemen,
It is an honour to have been selected as the EUI professor who will present the annual State of the Union Address to this distinguished audience of policy-makers, scholars, media professionals and others. The reason for this choice is that one of the main themes of the State of the Union Conference this year is Surveillance and Freedom in Europe, when a large European research project on surveillance, headed by myself over the last three and half years, is coming to an end and can present its results.
I will speak about surveillance but also about three other themes that the European Union, and engaged people such as we here today, need to confront when thinking through the future of Europe. This room, the Salone dei Cinquecento was built in the 1490s as a seat of the Grand Council of the Florentine Republic (Consiglio Maggiore) consisting of 500 members. Those themes that I will address to you, dear members of this Consiglio Maggiore, are:
- Confronting the challenge of Climate Change, primarily through a radical rethink of energy policies;
- Confronting the challenge of migration at times when the Mediterranean tragedy cries for immediate and effective answers; and
- Confronting the challenge that Europe is expected to be the one player in world politics that can be a value-based actor, promoting Global Justice.
Let me nevertheless start with the theme of Surveillance and Freedom in Europe. It is soon two years since former CIA and NSA contractor Edward Snowden went public with his revelations about massive and systematic surveillance conducted by the United States and other countries, affecting the confidential communications and personal data of millions and millions of fully law-abiding citizens. Throughout this time I have had the privilege to lead the European research project SURVEILLE funded from EU’s Seventh Framework Programme – Surveillance: Ethical Issues, Legal Limitations, and Efficiency.
Yesterday at the Badia Fiesolana we had a full day of events related to the SURVEILLE project. And just before this address we were offered some reflections on the outcomes of the project by excellent panellists. At this stage, as the consortium leader of SURVEILLE, I only want to offer three quick reflections on the project. The first one of them is that we hope to have demonstrated the strength of multidisciplinarity in academic research. Economists may be right in saying that the probability of dying of a terrorist attack is so low that it is not worth all the money that is spent in dubious efforts marginally to reduce that probability. Data scientists may be right in saying that realistic estimates of false negatives and false positives show that proper identification of real terrorists through mass surveillance is doomed to fail. Ethicists may be right in identifying various moral hazards that result from creating what is often referred to as the surveillance society. And lawyers, like myself, may be right in saying that mass surveillance through combining various categories of so-called metadata of innocent people amounts to legally impermissible intrusions into the fundamental rights of privacy and data protection. But not one of these people will alone be able to convince the population or the policy-makers that it is high time to dismantle mass surveillance. Through the multidisciplinary approach of SURVEILLE we hope to have paved a way for a more rational and holistic assessment of how the famous “balance” between privacy and security can be struck. In SURVEILLE, we gave to surveillance technologies the benefit of doubt by having our technology experts assess their capacity to deliver what they are designed to deliver. And then we compared the resulting security benefit – the usability score – against the ethical harm and the fundamental rights intrusion. In many cases we said yes to the question whether surveillance was acceptable. But in many cases we came to a negative conclusion, and perhaps most importantly we concluded that electronic mass surveillance is one of the areas where the proper way to strike the famous ‘balance’ is to say no to surveillance.1
Europe must fight against terrorism and other organised crime, and prevention is always better than reaction. If mass surveillance fails, then the question is what methods do work, and whether they are ethically and legally acceptable. An easy answer is found in targeted surveillance, as experience shows that in most of the high-profile terrorist attacks in Europe and elsewhere the perpetrators were already known to the authorities. But are there ways to identify the proper targets through other methods than mass surveillance or discriminatory profiling? This is the hard question, and SURVEILLE research suggests that the answer is affirmative.
The European Agenda on Security 2015-20202, adopted as a Communication by the Commission last week, contains important lessons learned and strategic insights but also some worrying items. The document identifies terrorism, organised crime and cybercrime as three interlinked threats for EU’s internal security. Rightly, it then affirms full compliance with fundamental rights as the first one of five key principles in confronting the threats. However, when the document moves to the plan to formulate during the next month or two “common risk indicators” for Member States that are controlling the EU’s external borders, one has to ask whether this reflects a plan to repeat the post-9/11 mistake of trying to construct “terrorist profiles.” And instead of drawing clear lessons from the 8 April 2014 ruling by the Court of Justice of the EU in the Data Retention Directive case, lessons that might be quite important in curtailing electronic mass surveillance by following the guidance of the Court concerning the requirements of legality, necessity and proportionality that flow from the fundamental rights of privacy and data protection, the Commission declares that it “will continue monitoring legislative developments at national level”. This sounds like laissez-faire to me.
As a positive observation, I want to note the mention in the Security Agenda document of work towards a Privacy by Design standard in technology development. This is very much in line with the outcomes of SURVEILLE, and I hope our work, and the special place proposed for Privacy by Design in the SURVEILLE Decision Support System will inform the elaboration of the standard.
Let me turn to the challenge of migration in the wake of the Mediterranean tragedy, the deaths of hundreds and hundreds of people just last month and thousands more in the course of recent years. Conflicts, failed states, ecological disasters and the depletion of natural resources cause millions of people in Africa, Asia and other parts of the world to put their hopes in the prospect of a better life elsewhere, often in Europe. Many but not all of these people are refugees, persecuted for their ethnicity, religion, political opinion or nationality. Many but not all fall victim to human smugglers or traffickers seeking financial gain from the desperation of others. Let’s face it, many of these people have no option but to leave, irrespective of what we in Europe do that we think may affect the “pull” factor.
Italy is to be commended for its Mare Nostrum operation that was in place from October 2013 to October 2014. It rescued 150.000 migrants. It was replaced by the Triton operation of the EU’s border agency, FRONTEX which was limited in its mission, resourcing and geographical coverage and failed to match the achievements of Mare Nostrum. Hundreds of people had to pay with their lives before the Triton and Poseidon operations were upgraded two weeks ago by tripling their resources. The very first point of the statement adopted by the Special Meeting of the European Council on 23 April can be wholeheartedly supported:
- “The situation in the Mediterranean is a tragedy.”
- And: “Our immediate priority is to prevent more people from dying at sea.”
Unfortunately that was coupled with the threat of a military response, referred to as “systematic efforts to identify, capture and destroy vessels before they are used by traffickers”. This idea is out of this world. There is no way to distinguish ships that in an improvised fashion will be used to take migrants out to the sea, from the ordinary fishing vessels they are. There is no way to distinguish traffickers, smugglers, humanitarian actors and spontaneous flows. There is no way to prevent the loss of life when boats are destroyed, and here we are speaking of civilians, not combatants in an armed conflict. And there is no way to run such an operation in compliance with international and national law, even if there was a Chapter VII resolution by the United Nations Security Council in principle authorising the action. European leaders, please reject the idea of military action against civilian ships, as it will not work and as it will only damage the reputation of yourselves and all of us Europeans.
The main element of a sustainable solution is to create multiple and sufficient channels for safe and regular migration, including for low-skilled migrant workers, individuals in need of family reunification and people with special skills. With its changing demographics, Europe needs these people. Only if there are sufficient channels for legal migration, other complementing solutions can work, such as protection and processing areas outside the EU. The Council is right in calling for “internal solidarity and responsibility” within the EU, this unavoidably entails a fair share of the overall immigration into the EU for those EU countries that so far do not pull their weight. People will not board unsafe vessels to get out into the sea in the hope for rescue, if there are functioning and accessible avenues to protection, processing and legal migration.
In his book The Collapse, Jared Diamond, who visited the EUI a couple of years ago, discusses the human-made ecological catastrophe of the Easter Island. The island was inhabited around the year 1200, and by the time the first Europeans arrived in 1772, it had been completely deforested, erosion had destroyed agriculture, and the fish stocks were depleted. The population had crashed around the year 1700 and the remaining small population was living undernourished in poverty, surrounded by the majestic stone statues for which the island is known.
The world is now repeating the same catastrophic errors, on a larger scale and at a faster pace. Above all, the dependence of our energy production and economies of oil and other fossil fuels have caused a situation where human-induced climate change is already causing frequent major environmental catastrophes such as storms, floods and heat waves. The consequences of climate change will only get worse, including through ecological changes and direct catastrophes such as the flooding of low-altitude areas including several island states. This ‘collapse’ is even faster than the one caused by the Easter Islanders who burned their forests. Oil pits have been known for at least 2,5 millennia but our oil-based economy is just a brief phase in modern history. Commercial drilling of petroleum dates back only 150 years, and it got its first huge boost after Henry Ford started the mass production of cars in 1914, just 101 years ago. Our ability to do damage is efficient; our willingness to repair damage less so.
Today, global energy consumption is estimated as 15 terawatt (TW) and expected to double by 2050. One terawatt is a million million watts. People in some rich western and northern countries consume about 10.000 W per capita and people in the poorest ones between 100 and 500 W. By continuing to take a big part of that energy from the limited and unrenewable fossil fuels of the earth, we are rapidly destroying the preconditions of human life, or at least of good life, on our planet. In addition we are depleting the earth of some of its most precious resources that could be made much better use in the course of millennia to come, rather than burning them into smoke by a couple of generations of selfish and short-sighted people. And it almost goes without saying, that while energy consumption and pollution are privileges of some, the devastation climate change is bringing is the price to be paid by others.
The solution to the issues of energy and climate change is shockingly simple, and technologically we are close to it. The big numbers just mentioned and the imminent risk of catastrophic consequences of climate change should not make us turn into doomsday prophets or to give up work for an alternative. This earth is a recipient of solar energy at the continuous rate of 89.000 terawatt. That is 6.000 times the current human consumption of energy. Even if everyone in the world were to consume as much energy as some of us now do in our rich and northern countries, we would still be consuming 80 terawatt. That is less than 0.1% of the inflow of solar energy. Conversely, this means that a tiny proportion of the earth’s surface will be sufficient for meeting any generously projected energy needs through the installation of solar panels.
For human societies, the rapid advancement of solar energy technology, including solutions for short-term and long-term storage, provides a prospect of empowerment and justice. With the ongoing rapid technological advances, solar energy is becoming a viable solution without dependency on a national electricity grid. As the mobile phone has been an empowering and liberating technology during my generation, so will solar energy be for the next one to come. Areas closest to the equator will have a competitive advantage, and no matter how remote they are from capitals, natural communities will be in a position to be in command of their own lives. This prospect of global justice can be distinguished from an oil-based global economy where limited geographical zones host a strategic proportion of a scarce and critical resource, effectively inviting the most powerful transnational corporations and states to obtain control over these zones, by whatever means it takes. Russia and Saudi Arabia are two examples of what you can expect to get as societal structures in an oil-based economy. Solar energy facilitates equality and democracy but does not necessitate them, just as oil-dependency does not necessitate dictatorship but increases its likelihood.
Of course, solar technology itself must be sustainable, including in its use of scarce natural resources. There is no shortage for instance of iron or silicon in the soil. Water, oxygen and hydrogen are available from the oceans, the latter two by using solar energy to release them. And carbon can be taken from the atmosphere, for instance by plants. It is primarily the short-term storage, i.e. electricity batteries that may already have become competitive in economic terms but will require new technological advances when being deployed on a massive scale. At that stage they may in their current forms become unsustainable because of their reliance on scarcer ingredients, such as lithium.
The EU’s energy policy includes a target of a 20% reduction in EU greenhouse gas emissions compared to 1990 levels, and a long-term goal to cut greenhouse gas emissions to 80-95% below 1990 levels by 2050, “while securing supply and maintaining competitiveness”. These numbers are ambitious but probably not ambitious enough. And there are shadows of conditionalities, national interests and corporate interest over them. Europe needs a much firmer commitment to the development and deployment of solar energy as the core of any sustainable strategic energy policy. Article 194 of the Treaty on the Functioning of the European Union allows for this but not without being coupled by a higher degree of responsibility than has so far been the case, both by the Member States and by Europe as a whole, at the global level.
Niccolo Machiavelli who had his office in this building in the early 1500s is known for the slogan “Necessity before Morality”. He was also a strong critic of armies based on the use of mercenaries, but he was no pacifist. According to Machiavelli there are two ways of fighting, by law and by force. “The first way is natural to men, and the second to beasts” said Machiavelli, providing some optimism to those of us who think that all men are not beasts and that men – and not only women – should prioritize solutions based on peaceful means. That said, Machiavelli did continue that when the method of law proves inadequate, one must be ready for the second method, the use of force.
That is how the international community still operates today. Next month we will commemorate the 70th anniversary of the adoption of the United Nations Charter. One could say that the Charter is a Machiavellian instrument, as it manages to combine the sovereign equality of all states that will be equally represented in the General Assembly and responsible for the progressive development of international law, with entrusting a much smaller group of 15 states with the task of maintaining international peace and security through whatever means it takes, including military means when necessary. As George Orwell put it in Animal Farm, coincidentally published just two months after the adoption of the UN Charter 70 years ago, “all animals are equal; but some animals are more equal than others”. The United Nations Security Council, if not blocked by the veto of any of its five permanent members, has the power to decide about mandatory sanctions, and in the last resort about the use of military force, after having first identified the existence of a threat to international peace and security.
The European Union does not possess those powers, and probably it is better that way. Instead, the EU can and should lead by example, by being a value-based actor that promotes global justice. There are two important preconditions for the EU being able to perform that kind of a role.
Firstly, the EU can be a value-based global actor only if the values it pursues are universal values worthy of acceptance by peoples, governments and actors in other parts of the world. The ideas of human rights, rule of law and democracy are universal and should be seen as such, and not as “European values”. It is inherent in the idea of a universalist understanding of the value basis of global justice that we Europeans need to respect the diversity and plurality of the world and commit to a perception of our values that is at the same time both non-hegemonic and principled. The piecemeal process of human rights having become truly universal through the voluntary ratification of United Nations human rights treaties by all states in the world – or to be precise, all UN Member States except not yet the newest one, South Sudan – has taken the world beyond the stagnant debate on whether the catalogue of human rights represented Western values when adopted in 1948 in the Universal Declaration of Human Rights. Maybe it did, maybe not. But in any case today the situation is different as all countries in all regions have accepted the human rights catalogue as binding law. Equally, the perception that United Nations level human rights treaties would constitute only vague and aspirational promises needs to be dismissed. For 40 years now, we have witnessed the emergence and consolidation of institutionalised practices of interpretation, turning the text of human rights treaties into clear legal principles and tests of compliance, often borrowing from regional human rights systems or national constitutions. In many issues UN-level human rights mechanisms have taken the lead and paved the way for regional mechanisms, including European ones.
Secondly, and closely related to the first requirement of adopting a universalist and principled perception of the value-basis of global justice, the EU must be honest, and must be seen to be honest, in its pursuit of global justice. Above all, this requirement translates into a greater need for coherence: coherence across various policy domains, including those related to trade; coherence across various EU-level actors and action by its Member States; and coherence across a whole range of fora, institutions and counterparts, be they states, international organisations, corporations or other non-state actors. A value-based pursuit of global justice cannot be successful as a foreign policy if it is not matched by coherent action elsewhere, including in the domains of trade, development, investment, security and agriculture.
The European Union, its Member States and the citizens of Europe need independent academic research concerning various conceptions of global justice, the role of the EU as a value-based global actor, and the contestants and contestations of that role. There is a burning need for thorough analysis and strategic thinking, and scholars across disciplines are eager to join in that undertaking and to engage with best independent minds in other parts of the world to help the EU to develop a strategy for global justice that meets the requirements of being universalist, principled, honest, and coherent, all of these at the same time.
That is how our Union should seek to confront the world, and to confront the future.
1. See, SURVEILLE deliverables D4.10 and D2.8.
2. Strasbourg, 28.4.2015 COM(2015) 185 final.