Thu, Oct 28, 2004 page9

• EU Consititution is a document meant to change

  Instead of setting out permanent or 'constitutional' principles, the EU's new Constitutional Treaty creates incentives for futures change that will eventually eliminate the very structure its authors are setting up - and that is just fine

  • By George Bermann
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  Tomorrow, leaders of the EU will gather in Rome to sign the union's new Constitutional Treaty. Praise for the document's uniqueness will undoubtedly be heard, and in this they won't be boasting, because the EU Constitution is unlike any other constitution ever written.

  Most constitutions -- including the American one -- aspire to "freeze history," or to set up a lasting institutional order that will resist the winds of change. Indeed, a constitution is by its nature an attempt to "tame" history, to make it follow the laws of man rather than its own logic, including unwelcome contingencies and the whims of fate.

  By contrast, the EU Constitution is written with the unspoken understanding that the institutions it is setting up are transitory, that they are far from optimal, and that it would be desirable to change them right now if political realities allowed it.

  But the realities of politics in today's Europe do not allow for the sort of document the signatories really wanted to draft, so the constitution that they did write is designed to establish a process of evolutionary change that will motivate further improvements along the way -- improvement that will, it is hoped, one day obliterate the very arrangements today's EU Constitution is setting up.

  Indeed, from the start, the architects of the union's Constitutional Treaty never seriously expected that their draft would endure in the form in which they wrote it. Instead, they saw themselves as following Europe's long established pattern of step-by-step integration.

  This pattern began at the start of the "European project" over half a century ago. Spillover effects from the original Coal and Steel Community of the 1950s led to the creation of the European Economic Community, then to the European Community, and finally to the creation of the union. Each step led to progressively greater integration.

  Even milestone documents such as the Single European Act and the Treaties of Maastricht, Amsterdam, and Nice, were never envisaged as achieving the kind of permanence (or even semi-permanence) that we normally associate with a constitution. The same is true of developments like the union's common foreign and security policy or Monetary Union, with its Euro and European Central Bank. No sooner did one intergovernmental conference produce a "settlement" than the wheels started turning to prepare for a successor conference and a successor settlement. This mechanism for the deliberately progressive construction of a unified polity out of nominally sovereign states is unprecedented in human history.

  When nations embark on a program of ever closer integration, the end result is always likely to look unfinished if they put aside -- on an ongoing basis -- any resolution of the ultimate destination. Indeed, the only thing that seemed clear from the start of the European integration process was that the states involved -- along with whatever new partner states they might pick up along the way -- would continue wheeling and dealing to construct their ever more integrated polity.

  As a result, every set of treaty amendments was the product of the type of untidy political haggling typical of intergovernmental decision-making. Indeed, even under the Constitutional Treaty, all states know that their partners have the express right to withdraw if they should ever become sufficiently disenchanted or come to look upon the EU as a bad bargain.

  But will the union's new Constitutional Treaty put an end to this pattern of evolutionary constitution building? It may do so to some degree, but not nearly as much as if the treaty's architects had done more to separate constitutional matters, such as the Charter of Fundamental Rights and the competences of union bodies and member states, from the stuff of everyday politics, like agricultural and fisheries policies or the technicalities of judicial cooperation in civil and criminal matters.

  A great opportunity to segregate what is permanent and durable (ie, "constitutional") about the union from what is impermanent and changeable (ie, "political") was missed.

  With nothing set in concrete, Europe's constitutional process continues to rely not on any transcendent document, but on balancing political relations and calculations so that the whole thing does not fall apart. This process will probably carry the cost of prolonging the emergence of a single European political loyalty (if one ever does emerge).

  This will be considered tragic only for those who see a stable European federation as Europe's manifest destiny. For the rest of us, notwithstanding the union's unprecedented eastward enlargement, the schisms that erupted over the Iraq war, and the other frictions that are bound to result from Europe's flexible, evolutionary approach to constitution-making, there is also a lot of hope in this extended struggle for self-definition.

  The recent collective sense across Europe of the urgency of being able to speak with one voice in external affairs may provide the next breeze, and enough glue, to keep the enterprise afloat.

  George Bermann is Professor of EU Law and Director of European Legal Studies Center at Columbia University.

  Copyright Project Syndicate/Institute for Human Sciences
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