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

German Law Journal

Volumn 4, Issue 12, 2003, Pages 1293-1305

  Klabbers, Jan ^a   Leino, Päivi ^a  

^a UNIVERSITY OF HELSINKI   (Finland)

Author keywords

[No Author keywords available]

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EID: 70449562893     PISSN: None     EISSN: 20718322     Source Type: Journal    
DOI: 10.1017/S207183220001213X     Document Type: Article

References (46)

1. See K.C. Wheare, Modern Constitutions (2d edn., London: Oxford University Press, 1966), at 33-34.
2. The text is available in English at http://european-convention.eu.int/docs/Treaty/cv00850.en03.pdf (last visited 1 September 2003).
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.
4. There is something seriously troubling about drawing up a list of fundamental rights which are, however, not deemed fundamental enough to be binding.
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.
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_785799_european_Jarlebring.pdf
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 Veijo Heiskanen & Kati Kulovesi (eds.), Function and Future of European Law (Helsinki: Helsinki University Press, 1999), 275-281.
8. See Document CONV 528/03 of 6 February 2003, draft article 1, paragraph 1.
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.
10. See Avishai Margalit, The Ethics of Memory (Cambridge MA: Harvard University Press, 2002), at 12.
11. See Anderson's classic study Imagined Communities (2d edn., London: Verso, 1991).
12. Then again, as Renan already recognised in 1882, "L'oubli et je dirai même 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.
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).
14. Laeken Declaration (emphasis in original; one emphasis deleted), supra note 3.
15. See on this point Miguel Poiares Maduro, "Europe and the Constitution: What If This Is As Good As It Gets?", in J.H.H. Weiler & Marlene Wind (eds.), European Constitutionalism Beyond the State (Cambridge: CUP, 2003), 74-102, at 78.
16. 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.).
17. The classic general study is Nagendra Singh, Termination of Membership of International Organisations (London: Stevens & Sons, 1958).
18. 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).
19. 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.
20. This refers to J.H.H. Weiler, "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.
21. Any associations the reader may have with rats and sinking ships are entirely the reader's responsibility.
22. The seminal paper is by Ulrich Everling, "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.
23. See more in-depth Cass Sunstein, Designing Democracy: What Constitutions Do (Oxford: OUP, 2001), esp. ch. 4.
24. See generally Jan Klabbers, An Introduction to International Institutional Law (Cambridge: CUP, 2002), esp. ch. 3.
25. See David J. Bederman, "The Souls of International Organizations: The Lighthouse at Cape Spartel", 36 Virginia Journal of International Law (1996), 275-377.
26. 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.
27. 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.
28. 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)
29. 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.
30. 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.
31. Rome Declaration of 18 July 2003, para. II, available at http://europeanconvention.eu.int/docs/Treaty/Rome_EN.pdf (last visited 1 September 2003).
32. 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.
33. 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).
34. 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.
35. 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. 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".
44. We gratefully borrow the term from W.T. Eijsbouts, "Constitutional sedimentation", Legal Issues of European Integration (1996, no. 1), 51-60.
45. 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.
46. 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’.