Resultaat Europese Conventie onbevredigend (en)

EUOBSERVER / COMMENT - The European Union has been one of the most successful creations in the history of political science. For the past half-century, harmonization of the policies of many European countries has helped make war in Western Europe unthinkable, enhanced the living standards of hundreds of millions of people, and enshrined into law a vast array of important social, political, and human rights.

Integration has fundamentally altered the way Europeans think about their relationships to one another, to their governments, and to the outside world.

In recent years, following the consolidation of the single market and the creation of a common currency, Union leaders have undertaken a good bit of collective soul searching. The objective of this self-examination has been nothing less than to redefine and clarify the organization's raison d'être Though it was not required by any prior treaty or agreement, the individuals charged with leading this assessment decided that Europe needed a constitution.

Vast ambition

Sadly, the document produced by Mr Giscard in the European Convention on the Future of Europe almost totally fails to achieve the objectives set out for it. In particular, the draft constitution suffers from three broad categories of deficiency.

First, it does not resemble a constitution. The language of the document is vague, verbose, and indecisive, and therefore woefully insufficient as a matter of process. Second, the document fails to cure the "democratic deficit" for which the Union has so long been characterized. Neither in form nor in substance does the draft constitution bring power closer to the people. In fact, it may do precisely the opposite.

Third, and most important, the document infringes too greatly on the sovereignty of the individual Member States. By proposing types of integration that would strip countries of some of their most essential functions, the draft constitution puts the Member States in the impossible (and unintended) position of choosing between Europe's integration and their own independence.

Virtually all of the document's flaws spring from its vast ambition, but the problem is not that the constitution is ambitious. Constitutions should be ambitious. The problem is that it is ambitious in ways that exacerbate the problems it was meant to remedy, undermine the fundamental principles of integration, and conflict with the idea of a constitution.

Mr Giscard has urged the Member States to adopt his text in something near its current form. That would be a tragic mistake. The European Union has done great things for both Europe and the world, but part of the virtue of doing great things is recognizing those that cannot be done. As discussed more fully below, all of the draft constitution's flaws flow directly or indirectly from the failure to do just that.

The Constitution does not resemble a Constitution

The essential merits of a constitution are found as much in the process as in the substance. An effective constitutional document not only sets out the core rights of citizens and the basic structures of government, but does so in a way that is clear, concise, definitive, and accessible. A constitution is for people, not bureaucrats, and it is imperative that it speak as plainly as possible. Regrettably, the draft constitution produced by Mr Giscard and his colleagues shows few of these procedural virtues.

The inclusion of peripheral and arguably inappropriate rights not only dilutes the value of those rights that ought to be protected at a constitutional level, but damages the credibility of the entire EU enterprise.

Programmes proposed by this article, such as cultural exchanges and artistic cooperation, do not belong in a constitution.

Language is too vague

In addition to being too long and too inclusive, the language of the draft constitution is pathologically vague and inaccessible. To be sure, the organic vernacular of the EU (and its predecessors) has always been one of its more adaptive features. The ambiguity inherent in the Union's official language has no doubt allowed its disparate governments to agree, over the years, on numerous complex undertakings.

It has also shielded the Union's wide mandate from many a critical eye; the idea that EU law is itself supreme over the law of the Member States, and has been for decades, has prevailed in large part because it has historically been masked by imprecise language. And yet, without that idea, European integration would be legally unenforceable. In short, it is no exaggeration to say that the ambiguity of EU terminology has directly contributed to the success of integration.

Such ambiguity, however, has no place in a document that purports to be a constitution.

The future is too uncertain

The draft EU constitution unwisely fails to abandon the tenet of "ever closer union." While that idea has served the EU well in its first half-century, integration is reaching the point where uncertainty regarding the future is counterproductive. A constitution cannot be a recipe for indefinite evolution, and in many respects it must be the opposite.

Short of constitutional amendments themselves, a constitution should define the rights of people and the capacities of government in a way that provides predictability and certainty. While it should use language and reflect principles broad enough to accommodate unforeseen future developments, it should not affirmatively declare that certain matters of basic political structure are unsettled.

Bad for democracy

The European Union has not historically been a bastion of democracy. Throughout its entire existence its institutions have been little known by ordinary Europeans, and that anonymity (like its ambiguous language) has enabled it to quietly permeate innumerable corners of life. European laws now account for over half the legislation passed in the Member States and affect virtually every area of public policy.

Yet despite (or perhaps because of) the consistent success of this unassuming technocratic project, the EU has always been rightly criticized for its lack of transparency and its dubious democratic credentials.

The draft constitution would actually have the effect of making the Union less transparent and less democratic, as it fails to properly delineate the powers of EU institutions relative to both each other and the Member States.

Wobbly checks and balances

An essential characteristic of a well-drafted constitution is that it establishes the basic relationships among relevant institutions. If the constitution is drafted for a democratic polity - many a dictatorship has been "constitutional" - the document must ensure an equilibrium of power among those institutions, lest one institution become structurally capable of dominating the others.

This notion is at the heart of the "checks and balances" concept which typifies the American constitutional system. The EU's draft constitution, however, largely fails to establish such an equilibrium.

To be sure, in some ways this document represents progress over past treaties. The European Parliament, the EU's most representative body, has emerged with some substantial gains. Broadly speaking, the Parliament has gained the right of "co-decision" (meaning its approval must be obtained) for a much wider range of policy areas, including agriculture, energy, and the environment.

In addition, the draft constitution proposes creating the position of President of the European Council. At first glance, this would appear to accrete more power at the Union level. But the European Council, made up of the Member States' heads of state, is an intergovernmental rather than supranational body. Having its own president may complicate things as an administrative matter, but as a substantive matter it will probably increase the extent to which individual Member State voices are heard.

Yet beyond these developments, the draft constitution does little to create an equilibrium of power among EU institutions. Instead, the institutional structure proposed by the draft, when it is clear enough to discern, systematically favours the centralization of power in Brussels.

First, the un-elected, highly supranational Commission retains almost sole discretion to propose legislation, manage the Union budget, and implement Union law. Second, the document proposes increasing the size of the Commission to include 15 voting commissioners and 15 non-voting commissioners, to rotate among countries regularly. While this plan may placate the new Member States, who have been adamant in their demands for commissioners, it will also most likely concentrate power in the hands of the Union's least representative body.

Finally, the draft constitution inappropriately aims to create harmony among the Union's various entities, providing that "[t]he Institutions shall practice full mutual cooperation." Besides being irretrievably vague, it is doubtful whether EU institutions should strive for such cooperation. Effective constitutional systems, not least the American, aim not for cooperation but for healthy and perpetual conflict among institutions. Such conflict protects the rights of citizens by ensuring that a state's institutions do not cooperate so much that they lead to corruption and the diminution of democratic features.

Member States deprived of too much sovereignty

Constitutions are typically written by single, independent nation-states, political entities whose authority over their constituent parts is beyond question. Rarely, if ever, has a group of sovereign states considered establishing a constitution to govern relations among them. Yet that is what 25 European countries, none of which has any intention of ceasing to be sovereign and independent, are attempting to do.

In essence, they are negotiating a framework under which they will voluntarily relinquish (as they have done in the past) some of their autonomy in order to achieve greater things collectively.

Therein lies the most significant flaw of the draft constitution. In its current form, the document asks the Member States to give up too much, and in so doing threatens their very sovereignty. Far from confining itself to the types of cooperation - economic, environmental, and public health-related - on which the EU has focused over the years, the draft constitution endeavours to bring into its embrace a broad range of highly sensitive areas of public policy.

In so doing, it threatens to undermine the conceptual underpinning of the European Union: the integration of sovereign states, cooperating where it benefits them, acting individually where it does not. From serious policy matter to serious policy matter, the document proposes the "supranationalization" of areas of policy that simply should not be supranationalized.

Foreign and defence policy

The clearest example of the document's infringement on state sovereignty occurs in the area of foreign policy. In numerous manifestations, the draft constitution would give the Union responsibility for the foreign and defence policies of all 25 current and future Member States. First, the draft constitution would allow the EU to define the strategic interests of the Member States as a whole.

Second, it would create a foreign minister for Europe and charge that individual with managing the formation and implementation of Union foreign policy, as well as representing the Union diplomatically.

Third, the draft constitution would provide for a European diplomatic corps, above and beyond the Member States' diplomatic capacities. Fourth, the Member States would be required to "coordinate their action in international organisations," implying that they must take uniform positions in multilateral settings. Fifth, the draft constitution would provide for a common defence policy, integrating and harmonizing the military capabilities of the Member States and providing for concerted action in the case of conflict.

Finally, the draft constitution would create a Union armaments agency tasked with harmonizing operational requirements, strengthening the defence sector's industrial and technological base, and coordinating procurement practices.

It is true that the Council of Ministers, which directly represents the Member States, would be required to agree unanimously on foreign or defence policy action. Yet even that safeguard on Member State sovereignty appears vulnerable to erosion, as the next article in the document allows the Council of Ministers to act by qualified majority "when adopting any European decision implementing a Union action or position." For all the ambiguity of this provision, what is not ambiguous is that, according to a definition found earlier in the document, a "decision" is "binding in its entirety" on the Member States.

Criminal law

Another bad candidate for harmonization is criminal law. While it does not envision the kind of unification that it does with foreign policy, the draft constitution proposes "judicial cooperation" in a variety of criminal matters.

Much of the language belongs in the document and its inclusion is to be commended. In particular, the document commits the EU to fighting heinous crimes such as trafficking in human beings and the sexual exploitation of women and children. Yet much of the envisioned cooperation appears to exceed the measured grant of sovereignty to which the Member States have consented.

The legal systems of the 25 current and future Member States vary widely, in both process and substance. And the differences matter. They reflect deep, culturally-determined attitudes about the relationship between citizens and the state, and how laws should be structured to embody that relationship. Beyond the legitimate international crimes discussed specifically in the document, the broad notion of "judicial cooperation" implicit in the text challenges the Member States' individualized approaches to criminal law.

Immigration and Asylum

Immigration and asylum policy is yet another area where the delegates have shot for the moon. Although the Member States have historically retained national vetoes regarding immigration and asylum, the draft constitution seeks to subject the field to majority vote.

One also must question, as a practical matter, whether it makes sense to move immigration and asylum policy to the Union level. The 25 Member States of an enlarged EU are vastly different economically, culturally, and demographically. Though a common policy by no means implies an identical policy, harmonization will have to struggle to recognize the individual requirements of each Member State. Unlike many features of a common market, immigration is certainly one area of policy where one size does not fit all.

Conclusion

European integration has been a wonderful achievement, and it is sensible for the EU to think big thoughts about its future. It certainly needs to open itself up to the people and to clarify what its institutions are meant to do. In fact, it might even need a constitution. But not this kind of constitution.

Instead of devolving power to the people, it continues to hoard it in the centre. Worst of all, it proposes doing things that would destroy the fundamental principle of Member State sovereignty upon which integration is based.

Representatives of the Member States meeting in the IGC over the next several months will find it difficult to reject this document with as much conviction as circumstances demand. Yet they should be urged to do so, and to demand a redraft in light of the principles and values discussed here. For Europe certainly deserves better. The EU is at a pivotal moment in its history, and the way in which Europe's leaders craft its constitution could affect its second fifty years as profoundly as World War II affected its first.

The writer practices international litigation and arbitration at the Washington, DC law firm of Hogan & Hartson L.L.P. For the full version of this article, please see: http://www.euobserver.com/index.phtml?sid=7&aid=13352