The European Dream (35 page)

But even if the new constitution were to be rejected, the Union itself is already so far along toward integration that no one really believes it will ever dissolve back into separate nation-state governments, each going it alone in the global era. Rather, most political observers believe that if this particular constitution runs into serious trouble, the member states will merely resurrect its various particulars in other treaties and directives until the substance of the covenant becomes binding on the community.

The adoption of the European Union Constitution gives the EU the legal stature of a country, despite the fact that this new governing institution has no claim on territory—the traditional hallmark of statehood. While its provisions allow it to regulate activity within the territories of its members, including activity that affects property rights and relations, it’s worth emphasizing that the EU is not, in itself, a territory-bound government. It is, rather, the first transnational government in history whose regulatory powers supercede the territorial powers of the members that make it up. This fact alone marks a new chapter in the nature of governance. The EU’s very legitimacy lies not in the control of territory or the ability to tax its citizens or mobilize police or the military force to exact obedience but, rather, in a code of conduct, conditioned by universal human rights and operationalized through statutes, regulations, and directives and, most important, by a continuous process of engagement, discourse, and negotiation with multiple players operating at the local, regional, national, transnational, and global levels.

Under the proposed constitution, which includes a Charter of Fundamental Rights, the Union will be able to sign treaties in its own right, binding its member nations. It might ultimately be granted a seat on the Security Council of the United Nations—replacing the United Kingdom and France. It will have a president elected by the European Council who will serve for up to five years and be responsible for setting the EU’s agenda. Currently, the EU presidency rotates every six months, and the office is held, in turn, by each of the presidents of the member nations.

The EU will also have a single foreign minister responsible for conducting foreign and defense policies. The constitution calls for a single foreign and security policy, and member states are called upon to “unreservedly support the Union’s foreign and security policy in a spirit of loyalty and mutual solidarity.”
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However, member states are given an escape clause. They can either abstain from voting or vote no, which would allow them to block a foreign policy proposal from even being taken up by the council.
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In addition, while the European Union is charged with the task of creating a rapid-reaction strike force, national governments will still retain control over their own armed forces. Valéry Giscard d’Estaing, the former French president who oversaw the constitutional drafting process, said he believed that it would take twenty years before the Union had a unified and integrated foreign policy and spoke with a single voice in the international arena.
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The national governments will retain control over taxes. While the EU budget currently exceeds 100 billion euros a year, the member states have steadfastly refused, until now, to grant it the right to raise taxes independently of the states—making it dependent on the members for its budget.
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The member states will also still retain control over decisions of whom they grant citizenship, although, as mentioned earlier, any citizen of a member state will have the right to take up residency in another member state, and work, and vote in local and European parliamentary elections, and even run for office in either venue. Moreover, under the new constitution, broad policies designed to harmonize immigration along with refugee and asylum issues will be decided by majority vote. Under the old rules, any country could exercise a veto.
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The constitution also grants the Union the right to establish at least minimum rules concerning judicial procedures dealing with the rights of the accused, the rights of victims, and the admissibility of evidence in court proceedings. EU changes in criminal law would require only a majority vote.

Those favoring a stronger EU hoped that any future changes in the constitution itself would be made by a majority of the states, if four-fifths of the states agreed. They lost, however, to the confederalists who were successful in imposing a unanimous agreement provision for any proposed constitutional changes.
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The EU Constitution is being sold as a kind of grand compromise, with something for everybody. For countries like the U.K. and France, who believe that the EU should exist as an extension of but not a substitution for the nation-state, the constitution provides some relief. The new rules strengthen the voting power of big countries in the Council of Ministers.
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Under the new provisions, the council can pass legislation when half of the members, representing 60 percent of the EU population, vote for it. This gives the bigger nations—Germany, U.K., France, and Italy—more potential power to steer the legislative agenda. On the other hand, the Council of Ministers’ power is somewhat diminished because of the new powers ceded to the commission.

For the smaller nations, who would like to see a more federal union, the constitution strengthens the European Commission. The commission has a monopoly over the right to propose new legislation, which is tantamount to veto power over prospective legislation that might be taken up by the Council of Ministers and the European Parliament. The commission’s president, who will be elected by the European Parliament, will enjoy greater executive and enforcement powers.

The parliament will also get new budgetary and law-making powers. Most EU legislation voted by the Council of Ministers will be subject to parliamentary approval.

My first impression in reading over the European Constitution was that large chunks of it would never be acceptable to the majority of the American people, were it to be submitted for ratification in the U.S. Although there are passages throughout that would no doubt resonate with many Americans—including sentiments cribbed largely from our own Declaration of Independence and the Bill of Rights of the U.S. Constitution—there are other ideas and notions in the 265-page document that are so alien to the contemporary American psyche that they might be considered with suspicion or even thought of as somewhat bizarre.

To begin with, there is not a single reference to God and only a veiled reference to Europe’s “religious inheritance.” God is missing. Strange, in a continent where great cathedrals grace the central plazas of most cities, and small churches and chapels appear around every corner. Still, most of the ancient sanctuaries are visited primarily by tourists nowadays. One would be hard-pressed to see more than a scattering of local people at a Sunday morning mass. As mentioned in the opening chapter, for the most part, Europeans—especially the post-war generations—have left God behind. Europe is arguably the most secular region in the world. That’s not to say that there wasn’t a heated debate over the absence of God in the document. Pope John Paul II and the Vatican lobbied publicly for “a clear reference to God and the Christian faith” in the preamble.
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Others argued that not to mention Christianity, when it played a pivotal role in the history of Europe, was unforgivable. Most, however, agreed with Anna Palacio, Spain’s former foreign minister, and a member of the drafting convention, who argued that “the only banner that we have is secularism.”
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A French diplomat put it even more bluntly: “We don’t like God.”
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God is not the only consideration to be given short shift. There is only a single reference to private property, tucked deep inside the document, and barely a passing mention of free markets and trade. The Union’s objectives, however, include a clear commitment to “sustainable development . . . based on balanced economic growth,” “a social market economy,” and “protection and improvement of the quality of the environment.”
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The Union’s other objectives are to “promote peace . . . combat social exclusion and discrimination . . . promote social justice and protection, equality between men and women, solidarity between generations, and protection of children’s rights.”
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Much of the constitution is given over to the issue of fundamental human rights. It might even be said that human rights are the very heart and soul of the document. Giscard d’Estaing declared with pride, on the unveiling of the document, that “of all the men and women in the world, it is the citizens of Europe who will have the most extensive rights.”
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The rights outlined in the Charter of Fundamental Rights of the European Union go far beyond the rights contained in our own Bill of Rights and subsequent constitutional amendments. They include the Right of Life: “no one should be condemned to the death penalty, or executed.” Everyone has the right to have his or her physical and mental activity respected. In the fields of medicine and biology, the individual’s right to free and informed consent is protected. Eugenics practices are prohibited, “in particular, those aiming at the ‘selection’ of a person.” Selling human body parts is also prohibited, as is the reproductive cloning of human beings. Everyone has “the right to the protection of personal data concerning him or her.” Similarly, “everyone has the right to access the data which has been collected concerning him or her, and the right to have it rectified.” Everyone has “the right to marry and the right to found a family.” Everyone has “the right to form and to join trade unions for the protection of his or her interests.” “Everyone has the right to education and to have access to vocational and continuing education.” While discrimination based on sex, race, color, and ethnic or religious background is prohibited, other discriminations, based on genetic features, language, and opinions, are also prohibited. The Union “shall respect cultural, religious, and linguistic diversity” as well. Children are granted the conventional rights “to such protection and care as is necessary for their well-being,” but they are also guaranteed the right to “express their views freely.” “Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.” In addition, “every child shall have the right to maintain, on a regular basis, a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
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There are still other rights that do not exist in our U.S. Constitution. For example, the EU Constitution grants everyone “the right of access to a free placement service,” as well as “the right to limitation of maximum working hours, to daily and weekly rest periods, and to an annual period of paid leave.” The constitution also guarantees the right to paid maternity leave and parental leave following the birth or adoption of a child. The Union “recognizes the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources.” The constitutional guarantees also include “the right of access to preventive health care and the right to benefit from medical treatment.” The EU even guarantees “a high level of environmental protection and the improvement in the quality of the environment . . . in accordance with the principle of sustainable development.”
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Many of the rights guaranteed by the new European Constitution remain controversial in the United States. While they have their advocates, and enjoy some measure of popular support, public sentiment remains far too divided to elevate them to the status of universal human rights. And the U.S. is not alone. Few countries outside Europe would likely subscribe to most of the universal human rights guaranteed by the new EU Constitution. To this extent, the EU has become the undisputed leader in championing new human rights among the governing regimes of the world.

The EU Constitution is something quite new in human history. Though it is often weighty—even cumbersome—and does not enjoy the eloquence of, say, the French and U.S. constitutions, it is the first document of its kind to expand the human franchise to the level of global consciousness, with rights and responsibilities that encompass the totality of human existence on Earth. (While the United Nations Charter and subsequent United Nations human rights conventions also speak to universal human rights, the UN itself is not a governing institution representing individual citizens, as is the EU.)

The language throughout the text is one of universalism, making it clear that its focus is not a people, or a territory, or a nation, but rather the human race and the planet we inhabit. If we were to sum up the gist of the document, it would be a commitment to respect human diversity, promote inclusivity, champion human rights and the rights of nature, foster quality of life, pursue sustainable development, free the human spirit for deep play, build a perpetual peace, and nurture a global consciousness. Together, these values and goals, which appear in many different forms throughout the constitution, represent the warp and woof of a fledgling European Dream.

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REAMS REFLECT HOPES, not achievements. To this extent, the European Constitution represents a future to be filled in. And, like the U.S. Constitution of more than two hundred years ago, one can point to the many hypocrisies and contradictions that belie the noble sentiments contained in the new European covenant. Nonetheless, the framers of the European Constitution have forthrightly set to paper a vision of the kind of world they aspire to and would like to live in and the rules to oversee the journey.

For the past half century, Europe’s political elites have engaged in a running struggle to define the limits of power of the emerging European Community. While the federalists have argued for ceding more power to the Union, the confederalists have attempted to retain power in the hands of the member states and have thought of the European Union more as an intergovernmental forum to coordinate national objectives and strengthen each member’s own self-interests. Former French prime minister Lionel Jospin put the confederalist position this way: “I want Europe, but I remain attached to my nation. Making Europe without unmaking France, or any other European nation, that is my political choice.”
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In other words, the Union is to be a “Europe of States.” All of the compromises along the way have reflected the tensions between these two divergent forces.