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Death by Constitution? The Draft Treaty Establishing a Constitution for Europe

Published online by Cambridge University Press:  06 March 2019

Jan Klabbers  and
Päivi Leino

Extract

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It has been argued that the best possible constitution is a short constitution. If so, then the Draft treaty establishing a constitution for Europe is a spectacular failure: at more than 250 pages, comprising some 450 articles and a handful of protocols and declarations, the Draft constitution is anything but short.

Type
European & International Law
Information
German Law Journal , Volume 4 , Issue 12 , 01 December 2003 , pp. 1293 - 1305
Copyright
Copyright © 2003 by German Law Journal GbR 

References

1 See Wheare, K.C., Modern Constitutions (2d edn., London: Oxford University Press, 1966), at 33-34.Google Scholar

2 The text is available in English at http://european-convention.eu.int/docs/Treaty/cv00850.en03.pdf (last visited 1 September 2003).Google Scholar

3 Available, , for instance, at the EU's website, at http://europa.eu.int/futurum/documents/offtext/doc151201_en.htm (last visited 1 September 2003). A paper version is included in Annex 1C to Peter Ludlow, The Laeken Council (Brussels: EuroComment, 2002), 227-235.Google Scholar

4 There is something seriously troubling about drawing up a list of fundamental rights which are, however, not deemed fundamental enough to be binding.Google Scholar

5 The technique of entrusting the drafting of an instrument to a broad convention encompassing many diverse interests was first used in connection with the Charter on Fundamental Rights. See generally Gráinne de Búrca, “The Drafting of the European Charter of Fundamental Rights”, 26 European Law Review (2001), 126-138.Google Scholar

6 For a balanced assessment of the convention method, see Johannes Jarlebring, “Taking Stock of the European Convention: What Added Value Does the Convention Bring to the Process of Treaty Revision?”, 4 German Law Journal (2003, no. 8), 785-799, avalaible at: http://www.germanlawjournal.com/pdf/Vol04No08/PDF_Vol_04_No_08_785-799_european_Jarlebring.pdf Google Scholar

7 For a brief polemic to this effect, see Jan Klabbers, “On Babies, Bathwater and the Three Musketeers, or the Beginning of the End of European Integration”, in Heiskanen, Veijo & Kulovesi, Kati (eds.), Function and Future of European Law (Helsinki: Helsinki University Press, 1999), 275-281.Google Scholar

8 See Document CONV 528/03 of 6 February 2003, draft article 1, paragraph 1.Google Scholar

9 It is perhaps no coincidence that Laeken's main architect, Belgian prime minister Guy Verhofstadt, was once described by an official as “the nearest Belgium has to a Thatcherite”, although he was later thought (not entirely convincingly perhaps) to have had a change of heart. As quoted in Ludlow, supra note 3, at 49.Google Scholar

10 See Margalit, Avishai, The Ethics of Memory (Cambridge MA: Harvard University Press, 2002), at 12.Google Scholar

11 See Anderson's classic study Imagined Communities (2d edn., London: Verso, 1991).Google Scholar

12 Then again, as Renan already recognised in 1882, “L'oubli et je dirai měme l'erreur historique, sont un facteur essentiel de la formation d'une nation…” Quoted in Eric Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (2d edn, Cambridge: Canto, 1990), at 12.Google Scholar

13 On integration theory, one of the classics remains J.K. de Vree, Political Integration: The Formation of Theory and its Problems (The Hague: Mouton, 1972).Google Scholar

14 Laeken Declaration (emphasis in original; one emphasis deleted), supra note 3.Google Scholar

15 Ibid.Google Scholar

16 See on this point Miguel Poiares Maduro, “Europe and the Constitution: What If This Is As Good As It Gets?”, in Weiler, J.H.H. & Wind, Marlene (eds.), European Constitutionalism Beyond the State (Cambridge: CUP, 2003), 74-102, at 78.Google Scholar

17 Incidentally, , European historiography appears to be a relatively new phenomenon, which only started to blossom in the 1920s and 1930s. Prior to that, it seems it had not occurred to many to write a history of Europe. Pioneering works include Henri Pirenne, Geschiedenis van Europa (4th edn, Amsterdam: Veen, no year), which contains a preface (presumably written for the first edition) dated 1917, and Benedetto Croce, History of Europe in the Nineteenth Century (1963, New York: Harcourt, Brace & World, Inc., first published 1933, First transl.).Google Scholar

18 The classic general study is Nagendra Singh, Termination of Membership of International Organisations (London: Stevens & Sons, 1958).Google Scholar

19 This has been the topic of a large amount of speculation in the academic literature. One contribution is Arved Waltemathe, Austritt aus der EU: Sind die Mitgliedstaaten noch souverän? (Frankfurt am Main: Peter Lang Verlag, 2000).Google Scholar

20 This is one of the lessons the drafters of the UN Charter learned from the League of Nations experience, as withdrawal from the League had been far too easy an option for Germany, Italy and Japan to resist.Google Scholar

21 This refers to Weiler, J.H.H., “Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration”, 31 Journal of Common Market Studies (1993), 417-446.Google Scholar

22 Any associations the reader may have with rats and sinking ships are entirely the reader's responsibility.Google Scholar

23 The seminal paper is by Everling, Ulrich, “Sind die Mitgliedstaaten der Europäische Gemeinschaft noch Herren der Verträge? Zum Verhältnis von Europäischem Gemeinschaftsrecht und Völkerrecht”, in Rudolf Bernhardt et al. (eds.), Recht zwischen Umbruch und Bewahrung: Festschrift für Hermann Mosler (Berlin: Springer, 1983), 173-191.Google Scholar

24 See more in-depth Cass Sunstein, Designing Democracy: What Constitutions Do (Oxford: OUP, 2001), esp. ch. 4.Google Scholar

25 See generally Klabbers, Jan, An Introduction to International Institutional Law (Cambridge: CUP, 2002), esp. ch. 3.Google Scholar

26 See Bederman, David J., “The Souls of International Organizations: The Lighthouse at Cape Spartel”, 36 Virginia Journal of International Law (1996), 275-377.Google Scholar

27 This may be impossible to maintain in practice, given the limited analytic utility of the notion of powers. See, e.g., Jan Klabbers, “Restraints on the Treaty-Making Powers of Member States Deriving from EU Law: Towards a Framework for Analysis”, in Enzo Cannizaro (ed.), The European Union as an Actor in International Relations (The Hague: Kluwer, 2002), 151-175.Google Scholar

28 Again, one may wonder whether this is at all possible: harmonisation may well result from uncoordinated individual acts of member states. This is, indeed, much of the rationale of the free market ideology. Still, what matters is that as a formal matter, harmonisation is excluded: this displays an intention not to proceed with integration.Google Scholar

29 This does not relate to the more common discussion whether Europe can have a constitution without a European demos. What occupies us is a different issue: does the Draft constitution speak to the people at all, and if so, how and to whom, exactly? An example of the demos debate is the discussion between Dieter Grimm and Jürgen Habermas in 1 European Law Journal (1995), 282-307. See also part II of J.H.H. Weiler, The Constitution of Europe (Cambridge: CUP, 1999),Google Scholar

30 An example is the UN Charter, the preamble of which famously starts with “We the peoples of the United Nations…”, but otherwise makes clear that it is the founding document of an organisation of states.Google Scholar

31 The preambular reference to the peoples of Europe was invoked to confirm the Court's impression that the EC Treaty was more than merely an agreement between states in case 26/62, Van Gend & Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.Google Scholar

32 Rome Declaration of 18 July 2003, para. II, available at http://european-convention.eu.int/docs/Treaty/Rome_EN.pdf (last visited 1 September 2003).Google Scholar

33 Which entails, in effect, that the EU remains stuck with “the legacy of the market citizen” as it has been called: Europe's citizen is a worker and a consumer, not someone participating in the public realm. For an illuminating analysis, see Michelle Everson, “The Legacy of the Market Citizen”, in Jo Shaw and Gillian More (eds.), New Legal Dynamics of European Union (Oxford: Clarendon Press, 1995), 73-90. Indeed, Europe barely has a public realm to begin with, and the Draft constitution does nothing to change this.Google Scholar

34 A fine overview of European citizenship is Jutta Pomoell, European Union Citizenship in Focus: The Legal Position of the Individual in EC Law (Helsinki: Erik Castrén Institute, 2000).Google Scholar

35 And are thus effectively denied membership of arguably the most relevant political community, at least as determined by the Draft constitution. On the importance of such membership, see Hannah Arendt, The Origins of Totalitarianism (San Diego: Harvest, first published 1951), esp. 290–302.Google Scholar

36 It is this conception of nationality that underlies some of the classic international law decisions: Nationality Decrees Issued in Tunis and Morocco (French Zone), [1923] Publ. PCIJ, Series B, no. 4, and the Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, [1955] ICJ Reports 4.Google Scholar

37 As Maduro puts it, “we are no longer prisoners of our original polity and can choose to live among a variety of polities”, in Maduro, supra note 16, at 85.Google Scholar

38 More generally, it has been observed that states have become more relaxed about such things as dual citizenship, and thus take the point about loyalty less seriously than they used to. In this light, the drafters’ apparent reliance on outdated theories becomes even less comprehensible. See, e.g., Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (Oxford: OUP, 1999), esp. ch. 4.Google Scholar

39 Note also that the draft constitution does not address the position of third country nationals residing permanently in the EU. This might still mean, in Arendtian terms which are only slightly overblown to cover the occasion, that these third-country nationals are expelled from humanity. See Arendt, supra note 35, at 297.Google Scholar

40 Article IV-8. The mere fact, incidentally, that the draft constitution can unhesitatingly accept the existence of national constitutions already suggests that Europe's constitution cannot be very constitutional.Google Scholar

41 This is spurious since, under international law, there can be little doubt that the EU possessed legal personality all along. For an overview of the debate, see Klabbers, supra note 25.Google Scholar

42 One wonders though why the more usual term “supremacy” is not used. We have not found anything in the preparatory works explaining this shift, and it may simply be an unfortunate use of English, as in other languages more orthodox terms are used.Google Scholar

43 Article 7 states that the Union “shall recognise” the contents of the Charter (as opposed, we presume, to recognition of the Charter itself), but there is no indication of those contents being incorporated into EU law, and paragraph 3 of Article 7 can even be seen to suggest that the Charter rights only form part of the Union's general principles to the extent that they coincide with rights emanating from other sources. For a critical analysis of the Charter itself, see Päivi Leino, “All Dressed Up and Nowhere To Go? The Debate on the EU Charter of Fundamental Rights”, 11 Finnish Yearbook of International Law (2000), 37-81.Google Scholar

44 This is how the various amendments, ever since the 1985 Single European Act, have been traditionally marketed: “reculer pour mieux sauter”, as the French put it, or “half a loaf is better than no loaf at all”.Google Scholar

45 We gratefully borrow the term from W.T. Eijsbouts, “Constitutional sedimentation”, Legal Issues of European Integration (1996, no. 1), 51-60.Google Scholar

46 He speaks, with capitals, of a Principle of Constitutional Tolerance. One of the more recent versions of the argument is J.H.H. Weiler, ‘In Defence of the Status Quo: Europe's Constitutional Sonderweg', in Weiler, & Wind, (eds.), supra note 16, 7–23.Google Scholar

47 Although those peoples of Europe or their representatives have thus far, to the extent that they influenced the Draft constitution, been rather reluctant to make a strong statement as citizens, and have been happy to let the member states run away with what ought to have become ‘L'Europe des citoyens’ rather than ‘L'Europe des patries'.Google Scholar