In February, major political groups of the European Parliament made an unprecedented demand. They asked the Commission and European Council to refuse Ted Malloch’s credentials, if he is designated as US Ambassador to the European Union. The demand referred to Malloch’s “outrageous malevolence against the values that define this European Union.” Among other things, Malloch indeed said that in a former diplomatic life, he helped bringing down the Soviet Union and that “maybe there’s another Union that needs a little taming.”
Governments very rarely refuse credentials. In the case of Malloch, such a refusal would even be unique under diplomatic practice, because it would be based on opinions of the nominee. ‘It was never a requirement of envoys to the Soviet Union that they support communism’, recalls The Guardian. But even if the Soviet Union would have required so, this would not have been shocking: the Soviet Union did not awards equivalent to the ‘Sakharov Prize for Freedom of Thought’, neither did its constitution include a Charter of Fundamental rights of which Article 11 expressly guarantees the right to freedom of expression, including the freedom to hold opinions without interference by public authority.
Reacting to the political outcry and media criticism, Malloch wrote on Breitbart that “The EU does not want any one but a pro-EU, US ambassador to go to Brussels. This undemocratic institution wants to force the US to keep things the way they were and deny President Trump his selection and to stop his views from being articulated there. They fear such truth and its forthright challenge.”
Henry Ford offered customers a car painted in any colour they desired, as long as it was black.
Similarly, for the European Parliament, all opinions can be expressed by diplomats as long as they are not Eurosceptic. But what about the MEPs who happen to be on that side of the political spectrum when it comes to Europe?
This trend should be of concern to all European lawyers. It bears too many similarities with §102 of the late East German Penal code which criminalized ‘anti-state propaganda’ covering ‘agitation against the constitutional basis of the socialist state and social order of the DDR’, the complete opposite of the Western value attributed to Voltaire more than two centuries ago by Evelyn Beatrice Hall: “I wholly disapprove of what you say and will defend to the death your right to say it”.
Would Malloch make diplomatic relations between the EU and the USA more difficult?
Moving beyond rhetoric and what seems to be a new post-Brexit temporary phenomenon of europopulism against any and all euronegativity, the reality is that when it comes to the two behemoths, personal likes and dislikes are not important. The greater good of the two Unions (the Union of Member States and the United States) is above rhetoric and grandstanding.
If and when he is nominated, Malloch must be welcomed to Brussels with the respect that his position commands so the transatlantic relationship can be forged anew; taking into account the new balance of powers of the US quarters: the empowered stakeholders who were previously more marginal, and the weakened stakeholders that previously were center-stage.