Abstract 

Nationalism has the potential to be a positive force. Populism, however, typically embraces an extreme form of nationalism. It is capable of resulting in damaging impacts, including mistrust of state institutions. This mistrust includes the judiciary. It encompasses protectionism and the imposition of tariff barriers to interstate trade; and hostility towards economic migrants and refugees. The Congress will address both the problems inherent in populism and the solutions which may be developed to address the concerns of citizens who believe that they have been left behind by supra national institutions and by national governments. Populist ideology is often disseminated through social media channels, where misinformation is rife. Nationalism is, for instance, an inherent part of the Russia-Ukraine conflict. As a result of the war, the prospects of meeting the Climate Change challenge in line with COP 26 outcomes will need to be re-considered. 

Context

1. In this brief introduction to the FIDE Fundación’s Congress on Nationalism, Populism and Identities, my purpose is to offer a personal reflection on the debate that lies ahead. This is a synthesis of some of the ideas which are covered in the Congress papers, as well as new ones. I am grateful for the stimulating arguments in those papers. The Congress will itself discuss the competing views on several topics and then reach its conclusions. This narrative sets the scene. But it is not a summary of what each paper covers.

2. There are four elements to this scene setter: (a) aspects of the growth of nationalism and populism; (b) aspects of ceding sovereignty to international institutions; (c) Ukraine (national identity and sovereignty); and (d) climate change.

Aspects of the growth of nationalism and populism

3. To the extent that nationalism implies a strong sense of identity between the people and a nation state and their support for that state’s interests, it is capable of being a positive force. Who would, for example, regard support for a national football side as a pernicious influence, provided that that support does not take an aggressive form such as xenophobic or racist chants by the host nation crowd? Even where nationalism finds its expression in a movement towards independence or secession or a federal constitutional system or devolution, it may be regarded as an affirmation of democracy so long as the constitutional mechanism to achieve any of those outcomes is (a) subject to a popular vote in line with each constitution and (b) delivers protection for the rights of the minority who “lose” the plebiscite.

4. Populism, by contrast, is typically regarded as a more radical expression of nationalism. In some cases, populism is damaging. It is best discernible in the way in which politics in any given state are shaped by this form of radical thinking:

(A) populists are opposed to the laws, values or institutions which prevent an elected government from doing what they were elected to do. There is often a mistrust of the state’s institutions which are considered to be elitist. In the UK, when the UK Supreme Court held in the Miller case that the Government could not initiate the process of notification of exit from the EU under Article 50 without an enabling act of parliament, the judges were subjected to disproportionate and misconceived criticism such as in the Daily Mail (a major national daily newspaper) headline calling the judges “enemies of the people”. It is ironic that, far from negating the Brexit vote in 2016, the judges were actually requiring the Government to seek an enabling act of the UK legislature which represents the people. The Mail headline was a headline which was calculated to misinform.

(B) (i) populists are typically represented as radical right-wing although that is too simplistic a categorisation. Globalisation, for example, has resulted in significant trade benefits. The received wisdom is that liberalised trade is beneficial. But there are usually winners and losers and liberalised trade can result in a diminution of social cohesion. Why? Some national industries may suffer from increased competition as a consequence of trade liberalisation. This may result in demands for protectionism to avoid job losses or for increased tariffs on imports or in environmental damage where regulatory standards are allowed to fall in order to increase competitiveness. 

(ii) Populist politicians will frequently be “against” trade liberalisation in order to put their citizens’ interests first – hence “America first”. There may be calls for restricted immigration to protect jobs for nationals or demands to restrict the entry of refugees. Often this is associated with rhetoric which deliberately confuses economic migration with applicants for asylum who, like so many Ukrainian families, are fleeing a war-torn country in fear for their lives. 

(iii) regional economic inequality in the UK was clearly a factor in the Brexit vote. That was, however, the consequence of domestic policy choices made by UK governments over many years.

(iv) where supra national bodies have a strong influence over the laws of a nation state, that is seen by populists as a loss of national identity and a lessening of national sovereignty. There is less attention paid to the reality of why sovereignty is ceded in the first place. Sovereignty is pooled in circumstances where joint action delivers greater benefits than individual state action is able to do. An example which rarely causes argument is membership of NATO even where a state’s armed forces may be subject to orders from another state’s officers. But, in the view of many populist thinkers in the EU, the EU has become too overbearing, with excessive power being wielded by its institutions, and too distanced from its citizens. The principle of subsidiarity has had less relevance in an EU which is committed to greater integration and in an enlarged Europe in which a centrist approach to law-making is welcomed in the eastern states.

Aspects of ceding national sovereignty to supra-national institutions

5.  Covid nationalism is an illuminating case study. There has been considerable attention given to the successful vaccination effort in wealthy EU countries. National politicians inevitably give overriding weight to vaccinating their citizens. But the WHO has consistently warned that, in an inter-connected world, the pandemic will only end when everyone in the world is safe. The Covax initiative is a commendable start. But, given the simmering demands of populism, when will the wider global interest be served adequately; and how?

6. The surrender (as populists see it) of national sovereignty to supra-national institutions has become a shibboleth. Yet the success of the Commission’s roles in procuring vaccines for the EU, as well as in common procurement and distribution of other health resources, has been notable. If the pooling of sovereignty in a common cause was a diminution of sovereignty, it was the right thing to do in an emergency. It showed how the EU could work together in the national interests of Member States and their citizens. To respond to the mistrust that some EU citizens feel towards the EU, the Congress will also discuss whether the development of a common health framework would be beneficial. There are also questions about the value of sharing (subject to ethical and legal constraints) personal data and big data in pursuit of common scientific research, avoiding the risks of digital national sovereignty over information as each state seeks to outdo one another. 

7. The growth of nationalism is not a new phenomenon. It unfolds insidiously. An example lies in the way that the UK media portrayed the EU over many years. Some criticisms were of course justified, for example, the way in which the Commission and the Court of Justice would frequently adopt an expansionist view of EU competence. But the complaints were exaggerated. 

8. Another example is the Factortamecase, now lost in the mists of time. Gray’s Inn recently published an article about parliamentary sovereignty in the UK in which the author analysed a crucial aspect of the Factortame case. The media reaction to Factortame was another example of the drip feed effect where, by accretion of misconceived criticisms, misconception becomes truth. 

9. The litigation which began in December 1988 is a leading case in EU and UK constitutional law. Its significance for Spanish readers is that, at the heart of the litigation, a group of Spanish fishermen (the claimants) were able to show that the UK authorities had unlawfully breached their rights of establishment by restricting access to UK fishing quotas by the adoption of new nationality restrictions to register fishing vessels in the Merchant Shipping Act 1988. Catch quotas were linked to fishing vessels registered on the national fishing vessel registers. The 1988 Act was passed to address the problem of quota hopping where entities of one EU member state bought registered fishing vessels of another state to enable them to land fish against the quota allocated to the other state.

10. In 1988, therefore, nationality restrictions had been introduced as a sovereign act designed to limit access to the UK fishing vessel register, long regarded as the prerogative of any government. But it could not be done at the expense of treaty freedoms under the EC Treaty which, if directly applicable, took precedence over national parliamentary legislation. It seems self-evident now. It wasn’t then.

11. Fishing rights have had a totemic importance, both in the UK and in other states such as France. The Brexit negotiations demonstrated that, far from bringing back legislative control in the fishing sector, the Johnsonian nationalist promise to the UK electorate at the time of the Brexit referendum, was a chimera. The rhetoric has now exceeded the reality of the Brexit negotiations. In the new consensus, fishing rights had had to be traded for other gains in the negotiations. The outcome pleased neither the UK fishing communities nor their French counterparts.

12. The litigation has also had perennial significance for another UK constitutional doctrine, namely, that Parliament is supreme. The 1988 legislation was an act of the sovereign will of the UK Parliament. But the Spanish claimants argued that, if the legislation were allowed to stand while the fishing issues were decided by the Court of Justice, the new register under the 1988 Act would survive in the interim. Their businesses would therefore be irreparably harmed without, under EC Law at that time, recourse to damages. Moreover, at that time, the national courts could not grant an interim injunction to suspend the Merchant Shipping Act. But the Court of Justice decided that, in order to provide full protection for EC Law rights, the national courts should have power to suspend UK primary legislation.
13. This was portrayed by parts of the UK media as the Court of Justice rewriting the British constitution. That was wrong. In another headline at the time, a national  newspaper banner headline said: “Spanish Fishermen 1: British sovereignty 0”. The footballing analogy was amusing; underlying it, however, there lay a  nationalist signal. Yet blaming the judges was an unsurprising occurrence as a nascent nationalism grew. As Lord Bridge said in his judgment in the UK House of Lords, the UK courts were simply being asked to suspend  primary UK legislation in pursuit of powers conferred by the UK Parliament itself in 1972 at the time of accession.
14. The more recent reaction in the media to the Miller litigation (see above) was the continuation of a process of antipathy to the judges traceable back to Factortame. This was the kind of misinformation which, in the digital age, we might regard as misleading and not part of genuine political discourse. The Congress will be discussing misinformation too. 

Ukraine, identity, and national sovereignty

15. The Congress, whatever happens in the two weeks following publication of this scene setter, will happen in the shadow of world events. It is impossible to predict with certainty how the Ukraine crisis will affect our futures. Here are three observations to consider.

16. The combatants in the Ukraine war have fundamentally opposing philosophies. Russia is determined to increase its hegemony in the Eastern Slavic states. It would be right to address its defence concerns as NATO extends its defensive shield eastwards. But nothing could excuse Russia’s unjustified attack on another state. The ferocity of the attack on Ukraine and the targeting of its civilian population has the potential to undermine confidence in International Humanitarian Law. There cannot be impunity for leaders of states which act unlawfully by egregious breaches of international norms. Whether it will be possible to do anything about it seems more doubtful. The International Criminal Court (ICC) Prosecutor has already begun some initial evidence gathering in Ukraine itself. But it will also be essential to produce credible evidence of a clear chain of command from the politicians to the soldiers on the ground and the key player with access to intelligence information is the USA. The USA has signed the ICC Statute but has never ratified it. The US Senate has recently adopted a non-binding resolution encouraging international criminal courts to investigate possible Russian war crimes. Yet since, in the absence of extradition, the capture of alleged war criminals within Russia would pose insuperable problems for the ICC Prosecutor, it seems improbable that a prosecution will be brought anytime soon.  There is an interesting contrast with what happened in respect of arrests in the Former Yugoslavia in order to bring suspects before the International Criminal Tribunal for the Former Yugoslavia. There existed UN backed peacekeeping forces, IFOR and SFOR. The forces had a Security Council mandate to support ICTFY in circumstances where law and order had broken down. Soldiers are not policemen; but there was scope under the mandate for military forces to carry out detentions and facilitate extradition to the Hague.

17.  By contrast, Ukrainian forces and, more particularly, the Ukrainian people, have shown the strength of nationalism. It is common ground that they, in pursuit of a sense of national identity and a love of their nation, have fought the invader with considerable bravery. Whether Ukraine achieves its original ambition of joining NATO and/or the EU is a moot point; but their assertion of national sovereignty, even to the point of death, is a remarkable phenomenon.

18. Just as significantly, the very EU countries which opposed the diaspora of Syrian refugees have demonstrated a revived commitment to the protection of humanity. Their generosity seems boundless. Poland and Hungary were in the vanguard of populist states when the Syrian refugee crisis erupted. Perhaps their hostility to accepting Syrian refugees is now outweighed by their generosity in speedily accepting, without question, the urgent need to welcome Ukrainian refugees unconditionally. The next challenge for the EU, already voiced by Poland, will be whether the EU as a whole will continue to collaborate in resettling refugees and whether funds will be made available to the front-line EU states. 

Climate change post COP 26: risks flowing from the Ukraine war. 

19. The Congress will consider the way in which Sri Lanka has addressed the climate change challenge. That will provide unique insights from a South Asian perspective. There will also be debate about the challenge of attaining the goals of COP 26. Some commentators would argue that the global consensus at COP 26 is now in jeopardy. As the former Secretary General of the UN, Ban Ki Moon, has warned, given how the availability of oil and gas will be affected detrimentally by the sanctions imposed on Russia, it would be wrong to seek greater supplies of fossil fuels. Yet that is what the UK currently seeks from Saudi leaders. The present UN Secretary General was reported in the Guardian (22 March 2022) as saying that : “ As major economies pursue a …strategy to replace Russian fossil fuels, short term measures might create long term fossil fuel dependence and close the window to 1.5 C “

Conclusion 

20. The FIDE Congress will have a unique opportunity to bring together experts from several disciplines to address the challenges of populism, Climate Change in the aftermath of COP26  and Misinformation. Given the scale of what lies ahead, the hope is that FIDE Fundación will succeed in developing ideas and proposals to address those challenges.

CPJ Muttukumaru CB DL 

Chair, International Academic Council of FIDE and consultant at Eversheds-Sutherland (International) LLP

Formerly General Counsel, UK Department for Transport 

Formerly senior member of the UK negotiating team at the diplomatic conference which adopted the ICC Statute in Rome in 1998.