=============================================== opinion on the proposed constitution for Europe =============================================== by Andrew Main (Zefram) 2004-06-19 abstract -------- European Union delegates have recently agreed a treaty on a constitution for Europe. The proposed treaty is examined, and found to be a good transitional document. 0. introduction =============== As a result of a meeting on 2004-06-17/2004-06-18, the representatives of European Union member states have agreed on a constitution for the EU. There will now be referenda on the proposed constitution in several states. If adopted, the EU's 455 million inhabitants, about 7% of the human population, will live under this constitution. For these reasons it is worthy of study by ordinary people. The text that has been agreed to is not, at the time of writing, available as a single document. The text considered here consists of [CIG-50] with amendments from [CIG-81] and [CIG-85]. [CIG-50], the base document, is 248 pages long. This is unwieldy. Fortunately, it is well structured. It is in four parts: part I defines the EU and its structures; part II is the "charter of fundamental rights", a declaration of human rights; part III contains detailed provisions on the policies and functioning of the Union; and part IV is concerned with the relation of the constitution to previous treaties. The preamble and part I together occupy 54 pages, and part II is a mere 24 pages. The majority of the bulk is in part III, which most people need not be concerned with. Parts I and II together constitute what would normally be recognised as a constitution, and these are what will be examined here. The author is in favour of a federal EU, and is much happier with the prospect of being a citizen of the EU than of the particular member state ey was born in. 1. constitutional fundamentals ============================== This section discusses the preamble and titles I and II in part I or [CIG-50], which contain the fundamental definitions of the Union. Notably, instead of speaking as "we the people" there's half a page listing the heads of state that are proclaiming this constitution. The document is being described by some as a "constitutional treaty", and such it is: a treaty between states, not a constitution as usually understood. One of the sticking points about the constitution has been the issue of including a religious reference in the preamble. (Ireland et al vs France et al.) In the end there is, of course, no specific reference, but the opening sentence (which is a page and a half long) contains a more generic mention of "religious and humanist inheritance". The "united in diversity" theme, which features heavily in the preamble, looks like a good one for the long term -- if people remember it. It sounds like a recipe for cooperation. Critically, the constitution does state that Union law takes precedence over national law. This is an exceptionally important threshold to cross, and the period around this threshold probably marks the peak in the complexity of the Union's constitutional basis. Only in Europe, proceeding towards union at a snail's pace, do we have to actually cope with this complexity that most unions skip over. Another major constitutional matter is that the EU is to have legal personality, resembling that of a country. This makes it possible for the EU to act as a single body internationally, entering into treaties and suchlike. For a start, the constitution itself states that the EU is to join the ECHR. Another consequence is the concept of citizenship of the EU, which we are to have in addition to our existing citizenship of a member state. Overall these first few articles look good from a Europhile point of view. It's a transitional document, a link between the EU's history in treaties and its federal future. It provides a union that is in practice slightly closer than it currently is, and which in principle has become a Union and is heading towards being a single country. It's good for scalability of the EU. It respects the rights of minority cultures at a fundamental level, an area where the US constitution's silence causes friction among those who live under it. 2. structures ============= This is where part I starts to look worse, but the faults are more in theory than in practice. Titles III to IX of part I, covering some 44 pages, are undeniably complicated. Arguably too complicated for a constitution. Special interests demand that the complicated status quo be maintained. There is a notable lack of sweeping statements providing guidelines for large areas of endeavour. Instead, a long sequence of fairly specific topics get specific handling. Title VI, titled "the democratic life of the Union", despite still suffering from the complexity bug, manages to achieve important things. It covers a lot of ground: representation, universality, transparency, and freedom of information. It appears to be designed specifically to avoid the possibility of the weaseling that is gradually turning the US into a totalitarian state. Under this EU constitution, a US-style movement to grant the people no more (and slightly less) than they are constitutionally entitled to would not be able to take away so concerningly much of democracy. Title IX defines procedures for countries joining and leaving the Union. This should do away with the previous complexity of treaties for joining. Despite all the special interests represented, these articles valiantly manage to avoid singling out any particular member states. This is to be applauded. Part I taken as a whole succeeds in getting away from the EU's six-member roots. 3. charter of rights ==================== This consists of part II of [CIG-50]. Generally it is, as is to be expected, a clear statement of extensive human rights. This is, by this author's reckoning, the fourth generation of Western attempts to enumerate human rights, and we've become rather good at it. Article II-3, titled "Right to the integrity of the person", contains some interesting prohibitions, such as a prohibition of reproductive cloning, that are very much a product of the concerns of the decade in which it was drafted. This resembles the current efforts in some places to preserve "the sanctity of marriage" by prohibiting marriages that are of non-traditional form. There is a scarily open-ended statement that "intellectual property shall be protected". The only thing that appears to constrain the generality of this is a similarly sweeping statement that "the arts and scientific research shall be free of constraint". This looks like a lawyers' paradise. Article II-21 on non-discrimination is as general as the principles in part I suggest. It prohibits "discrimination based on any ground such as" a long list of examples. There is specific mention of discrimination on the basis of political opinion, which, like several other provisions, seems to be a reaction to the tyranny of the current US president. 4. conclusion ============= While it contains many flaws, and suffers from the European bureaucracy disease, the proposed constitution is a good document. It moves in the direction of closer union, making progress in all the important areas. It moves away from the typical EU complexity in its most fundamental areas. Continued progress in the direction that this document points will lead to a Union to be proud of. This constitution is not an endpoint, but a worthy step in the gradual transition towards a European state. 5. references ============= [CIG-50] Conference of the Representatives of the Governments of the Member States, "Draft Treaty establishing a Constitution for Europe", CIG 50/03, 25 November 2003, . [CIG-81] Conference of the Representatives of the Governments of the Member States, "Meeting of Heads of State or Government, Brussels, 17/18 June 2004", CIG 81/04, 16 June 2004, . [CIG-85] Conference of the Representatives of the Governments of the Member States, "Meeting of Heads of State or Government, Brussels, 17/18 June 2004", CIG 85/04, 18 June 2004, .