A Dynamic Europe - An Analysis of the Treaty Establishing a Constitution for Europe

Abstract

In the spring of 2005, the Treaty Establishing a Constitution for Europe (CT) was rejected in French and Dutch referenda. The document, that was to lead the recently expanded European Union (EU) into the future, was instead put on pause for reflection. Why was there such fear and scepticism towards the CT? What was the CT really all about? In this analysis of the CT, I look at the CT from three legal/political theoretical perspectives&semic the International Law Perspective, the Constitutionalist Perspective and the Dynamic Perspective. According to the International Law Perspective, the CT is considered to be a treaty between sovereign Member States under international law. This perspective is influenced by the theories of Hobbes, which states the importance of absolute power. The so-called exit clause (article 59 of the CT) provides for unilateral withdrawal by a Member State from the EU. The Membership is in this sense a constantly renewed voluntary act, and it can, from this point of view, be argued that the Member States are still fully sovereign. Further, the principle of conferred powers stated in Article 9 of the CT, seems to be in agreement with the International Law Perspective. According to this principle, all the competences of the EU are derived from the Member States. From this point of view, EU can be considered not vested with any sovereignty by itself. However, in this paper I put the International Law Perspective in contrast with the Constitutionalist and Dynamic perspective. From the Constitutionalist Perspective, which is influenced by the theories of Locke, the CT is a vertically integrated legal regime conferring judicially enforceable rights and obligations on legal persons and entities within its jurisdiction. Furthermore, it is built upon the principle of division and limitation of power. The primary interest is the rights of the individual. However, in pre-war Europe it was difficult to view constitutionalism outside the idea of the sovereign nation state. The traditional approach has been that individual rights should be respected only within the nation-state. From the Constitutionalist Perspective, the EU and the CT have therefore come to be seen as the beginning of a federal European State. From the third perspective, the Dynamic Perspective, I view the CT in the light of post-war European development, where individual rights have come to be respected not only within the borders of the Nation State. The European Court of Justice (ECJ) has referred to the legal system of the European Community (EC) as sui generis, or in other words, as a unique legal system. This idea of Europe as a unique legal order is also the basic idea behind the Dynamic Perspective. Europe is seen as a pluralistic normative order, where the role of sovereignty and the importance of the idea of absolute and supreme power of the nation-state have declined. In this aspect, the Dynamic Perspective can be seen as standing opposed to the International Law Perspective. On the other hand, the Dynamic Perspective can be seen as a development of the Constitutionalist Perspective. It views a Constitutionalist Europe beyond the idea of the sovereign nation-state. In the Dynamic Perspective I conceptualize the EU as something that is constantly changing and developing. As was argued by Machiavelli already in the 16th Century, conflicts can create a creative tension, which lead to positive and dynamic changes of society. From this point of view, the outcome of the normative conflicts that occur within the EU, can be seen as a way for a progressive and dynamic development of a new post-war Europe. In the Dynamic Perspective, I also picture the EU and the CT from a social constructive point of view. According to this view, identities is not something fixed, rather it can be seen as something constantly constructed and reconstructed. From this point of view, a person can have multiple identities at the same time. In the Dynamic Perspective, I take account the force of nationalism in the European process of integration. I distinguish between civic and ethnic types of national identities. The CT can be seen as a constitution among the Peoples of Europe, rather than the People of Europe. Further, the respect of the national identities of the Member States is stated in Paragraph 5 (1) of the CT. Further, the motto of the EU, as stated in the preamble, is ''united in diversity''. The Dynamic Europe is built upon the diversity of its peoples and not on a single European demos. In the Dynamic Analysis of the CT, I conclude that the CT should not be seen in the light of the nation-state. The CT should rather be seen as a unique legal order, which takes constitutionalism and the idea of the right of the individual and the limitation of power beyond the borders of the nation-states to an international European level. Further, according to the Dynamic analysis, the CT does not try to create a European identity as a projection of the national identities of the Member States. Rather, it tries to create a type of constitutional patriotism based on certain common values and objectives, which can coexist with the national identities of the Member State. This strictly civic based European identity can work as a limit and safeguard for the exclusionary and racist tendencies of the national identities.

• author: Schnaider, Jakob
• supervisor: Ola Zetterquist
• organization: Department of Law
• year: 2006
• type: H3 - Professional qualifications (4 Years - )
• subject: Law and Political Science
• keywords: Allmän rättslära, EG-rätt
• language: English
• id: 1561785
• date added to LUP: 2010-03-08 15:55:29
• date last changed: 2010-03-08 15:55:29