Proposed EU constitution forces choice between integration and independence
July 17, 2003

Rough draft

Proposed EU constitution forces choice between integration and independence

It is as though Valery Giscard D’Estaing has just awakened from a long nap. The renowned French statesman tapped to oversee the drafting of a constitution for the European Union has presided over the creation of a document that has virtually no chance of being ratified in anything approaching its current form.

To be sure, criticism of the draft constitution was endemic even before it was unveiled in Thessaloniki, Greece, June 20. The points of complaint vary from the ambition of its policies to the ambiguity of its institutional structure to the sheer impenetrability of its language. Yet the fundamental flaw of this document, the defect from which many of the others flow, is that it seeks two mutually exclusive objectives.

The problem is not that the draft constitution is ambitious. A constitution should be ambitious. The problem is that it is ambitious in a way that fatally undermines the concept of nation-state sovereignty on which European integration has always been based.

There is, of course, no harm in striving to widen and deepen the very successful cooperation that the member-states have enjoyed for almost half a century. That should be the goal — there are still vast and varied gains to be had from further integration. But this document proposes doing so in a way that presents each of the member-states with a Hobson’s choice. From foreign affairs to criminal law to immigration and tax policy, Giscard and his colleagues have put EU members in the impossible position of choosing between European integration and their own independence.

Foreign policy is only the most obvious example. Proponents of further integration generally believe that the member-states ought to develop common positions on diplomatic and security matters and be able to mobilize under a single European command. The constitution’s drafters have attempted to codify this idea by proposing that Europe have its own foreign minister, that countries take certain foreign and defense policy decisions by majority vote and that the EU have a separate legal personality, such that it can negotiate foreign-policy matters as a unit.

Yet the question screams of how a common foreign policy could ever be implemented. It is unlikely that any country would willingly relinquish, to the extent necessary for the policy to be meaningful, this most essential ingredient of its sovereignty. The widely divergent positions in Europe over the war in Iraq have made clear the prohibitive reluctance of both current and future EU member-states to cede their foreign policy powers to a supranational authority. Taken to its logical conclusion, the exercise becomes absurd. By conducting foreign policy as a bloc, the EU would theoretically seek to consolidate the British and French permanent seats on the UN Security Council into a single EU seat, thereby decreasing its share of that body’s vote from 40 to 25 percent. (Of course, part of the reason a common foreign policy will fail is that neither Britain nor France will ever give up its Security Council seat.)

Criminal law is the other major area where the constitution’s drafters seem to have forgotten that the EU’s constituent elements are sovereign nation-states. The document proposes moderate harmonization of national criminal laws and the creation of a category of EU-wide crimes, such as corruption, fraud and human trafficking, which would be handled by a European prosecutor.

All this seems sensible on its face, but on closer inspection it is easy to see why many of the member-states are uncomfortable with it. Of all the functions of government, perhaps none better reflects a country’s core values than its criminal law. How a country responds to criminal conduct says a great deal about its people, its character and its moral compass. It is difficult to imagine how a bureaucracy that will soon represent 25 individual countries could ever legislate the contours of these most-basic principles. It is even more difficult to imagine those 25 countries allowing that bureaucracy to try.

Many other aspects of the draft constitution are similarly flawed. The drafters would like more standardization of asylum and refugee policy, but issues relating to immigration are among the most nationally sensitive. The delegates have pledged to preserve the notion of subsidiarity, which provides that decisions shall be made as locally as possible, but the language of the draft document implicitly discards the concept. And while they have not yet attempted to subject more of tax and social policy to majority vote, the drafters have expressly kept the door open to doing so in the future.

These assaults on member-state sovereignty are clearly troubling. They show that neither Giscard himself nor the integrationists as a whole have thought strategically about what the EU is and what types of integration are both desirable and feasible. Yet the danger of the document’s Pavlovian ambition goes beyond concern over the delegates’ lack of vision or the possibility that the draft will be rejected. For such a poorly considered, uncritical approach to integration threatens to dilute the wonderful achievements that the EU has made to date, as well as to cloud more-thoughtful efforts toward future collaboration.

The chief task for EU policymakers now is not to try to make this document work: It is to look in the mirror. Europe’s leaders need to consider the conceptual underpinning of their union — that of independent nation-states cooperating where it benefits them — and draft a constitution that best embodies that ideal. If their countries are truly willing to give up their national sovereignty, if they are genuinely comfortable handing that which makes them independent states to a higher supranational power, then by all means they should adopt this document or something closely resembling it. What Giscard is proposing requires nothing less.

The writer practices international litigation and arbitration at the Washington law firm of Hogan & Hartson.

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