Tuesday, October 30, 2007

The Treaty of Lisbon and E.U. Constitutionalism: Valery Giscard d'Estaing Makes a Good Point About Rule of Law and the Treaty of Lisbon

One has to admire the English press in general, and the BBC, in particular. They have never lost the culture of aggressive objectivity in the service of a cause that was their hallmark from the Second World War. It is a shame that it is more difficult to get consensus on an enemies list in this conflicted age. Nevertheless, when all else fails, there is always the French, or the European Union.

It must then have provided the editorial staff at the BBC some satisfaction to retell a story that scores against both: E.U. Treaty Same as Constitution, BBC News Online, Oct. 30, 2007, which it harvested from a story published earlier in the Independent. Ben Russell, EU Treaty is a Constitution Says Giscard d'Estaing, The Independent, Oct. 30, 2007. Both of these "reports" purported to describe comments published by Valery Giscard d'Estaing in the Independent, Valery Giscard d'Estaing, Commentary: The EU Treaty is te Same as the Constitution, The Independent, Oct. 30, 2007 on the proposed Treaty of Lisbon which is meant to substitute for the failed Constitutional Treaty.

Giscard d'Estaing argues that the terms of the proposed Treaty of Lisbon is substantially the same as those of the failed Constitutional Treaty rejected by French and Dutch voters a few years ago. "In terms of content, the proposed institutional reforms – the only ones which mattered to the drafting Convention – are all to be found in the Treaty of Lisbon." Valery Giscard d'Estaing, Commentary. But, he argues, the differences in approach between the two projects will have substantial effect. "The draft constitution resulted from a political desire to simplify European institutions, rendered inefficient by recent expansions." Valery Giscard d'Estaing, Commentary.
For the Treaty of Lisbon the process has been very different. It was the legal experts for the European Council who were charged with drafting the new text. They have not made any new suggestions. They have taken the original draft constitution, blown it apart into separate elements, and have then attached them, one by one, to existing treaties. The Treaty of Lisbon is thus a catalogue of amendments. It is unpenetrable for the public. Id.
What is missing from the Treaty of Lisbon that was present in the rejected Constitutional Treaty were all of the indicia of movement toward closer political union.
Firstly, the noun "constitution" and the adjective "constitutional" have been banished from the text, as though they describe something inadmissible. At the same time, all mention of the symbols of the EU have been suppressed, including the flag (which already flies everywhere), and the European anthem (Beethoven's Ode to Joy). However ridiculous they seem, these decisions are significant. They are intended to chase away any suggestion that Europe may one day have a formal political status. They sound a significant retreat from European political ambition. Id.
What is also missing is also any effort to deepen the democratic credentials of the amendment process. Giscard d'Estaing proudly recounts the democratically tinged process of constitution making under his stewardship, "which brought together representatives from the European Parliament and national parliaments, from the governments of member states, as well as from the European Commission. The debates were very public." Valery Giscard d'Estaing, Commentary. That was was merely aristocratic democratic organization does not bother the ex-French President--lots of representatives of the people were around to have their views known. Giscard's "ordinary citizens" were thus well served. Not so, he argues, when the "Brussels institutions . . . cleverly reclaimed the process from the – to them – unwelcome intrusion of parliamentarians and politicians in the work of the original drafting Convention. The institutions have re-imposed their language and their procedures – taking us even further away from ordinary citizens." Id. As a consequence, all sorts of deal making became possible that would have been harder in a process not dominated by bureaucrats. Giscard d'Estaing points to the deals to please French and British interests to win their approval. Id. He does not mention but could also have pointed to the deals made with the Poles and others with respect to the distribution of institutional power--all of which were necessary to get Member State governments on board.

Thus the two principle objectives of the Treaty of Lisbon: First, the provisions as recast in the Treaty of Lisbon will have the same effect but without running the risk of referendums. Second, the process of evolution has been recaptured by the E.U. bureaucratic classes in Brussels and can be deployed for their benefit. Thus, Giscard d'Estaing argues, "the proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referendum by avoiding any form of constitutional vocabulary." Id. Yet, Giscard d'Estaing find something hopeful in the ultimate product.
But lift the lid and look in the toolbox: all the same innovative and effective tools are there, just as they were carefully crafted by the European Convention: a stable Presidency; a streamlined Commission; a Parliament with genuine legislative rights; a Foreign Minister, even if he has been given another inadequate title; decisions taken by a double majority of governments and citizens; and the most advanced charter of fundamental rights in the world. Id.

Thus, though the bureaucrats have taken back the process, they have left intact the framework through which the process of political integration can proceed. Well buried in a complex document beyond the understanding of non specialists, is thus the possibility of progress. "When men and women with sweeping ambitions for Europe decide to make use of this treaty, they will be able to rekindle from the ashes of today the flame of a United Europe." Valery Giscard d'Estaing, Commentary.
Giscard d'Estaing's points are hardly new, or unknown to the E.U. elite within Europe. See Larry Cata Backer, A Step Forward for EU Treaty Constitutionalism, Law at the End of the Day, June 24, 2007. So what, besides sour grapes at being on the wrong side of the current focus of Treaty constitutionalism might motivate Giscard d'Estaing. It is possible that Giscard d'Estaing believes what he poreaches and is trying to provoke popular debate, and a referendum in Britain. For Giscard, symbols matter. And symbols were the primary victim of the move back to inter-governmentalism and treaty constitutionalism.

The stories in the English press purporting to report on both the French progenitor of the failed European Constitution, Valery Giscard d'Estaing, and on the flaws in the current efforts to "reform" the institutions and governance systems of the European Union through the proposed Treaty of Lisbon, tended to miss the larger picture for their concentration on stoking th eflames of political troublemaking at home. Both stories highlighted Giscard d'Estaing's delightfully cynical tone. But the commentary veered in two different directions, neither of which might have much to do with the substance of the commentary on which each insisted was being reported. The BBC story focused on that portion of Giscard d'Estaing's commentary in dealing with concessions to the U.K., the opposition's assertions that a referendum was needed for approval in Britain, and on the impenetrability of the new provisions. E.U. Treaty Same as Constitution, Still, the story is itself a study in the impenetrable--thus consider the discussion of impenetrability of the Treaty of Lisbon:
“The authors of the new treaty, [d’Estaing] says, have taken the original draft constitution and "blown it apart into separate elements". They have then "re-attached them, one by one, to existing treaties". . . . The document aims to streamline decision-making within an enlarged EU of 27 member nations.”
The tone of the story appears to highlight past failures (the overwhelming defeat of the earlier Constitutional Treaty) and present deficiencies of the effort that produced the Treaty of Lisbon, without dwelling on the power of Brussels in shaping its construction. In contrast, Ben Russell chose to focus on the effects of Giscard d'Estaings's Commentary on the politics of referendum in Britain. Thus he starts by suggesting that "Gordon Brown faces a renewed row over Europe after a declaration by the former French president Valéry Giscard d'Estaing that key parts of the European constitution remain "practically unchanged" in the new EU Reform Treaty." Ben Russell, EU Treaty is a Constitution. Conservatives effectively inverted Giscard d'Estaing's point--that the constitution process has been hijacked by the bureaucrats for their benefit and those of certain Member State's parochial interests-- to make a stronger case for a referendum. "Conservatives seized on his comments to press their case for a referendum. David Cameron has demanded a vote on the reforms, arguing they are substantially the same as the old constitution." Id. The emphasis was on Giscard d'Estaing's subsidiary point--that the Constitutional Treaty was refashioned as the Treaty of Lisbon to avoid the risk of rejection at the polls. And then the delightfully wicked close:

But Denis MacShane, the former minister for Europe, said yesterday: "M. Giscard d'Estaing is regarded in France as yesterday's man but the obsessive anti-Europeans in the Tory Party will seize on anything to promote their cause.
Elderly politicians in retirement can dream their dreams but this treaty gives Britain everything it wanted." Earlier this month, Mr Brown faced a rebuff from the Labour-dominated Commons European Scrutiny Committee, which said that the new treaty was "substantially equivalent" to the old constitution for many countries and warned that Britain may not be able to maintain its "red lines" over important policy areas. Ben Russell, EU Treaty is a Constitution.
Between them, the Independent and the BBC managed to reduce Giscard d'Estaing's somewhat subtle points to a relatively narcissistic obsession with internal British politics--an issue with respect to which the former French President could care less--and develop mixed signals about the Treaty of Lisbon itself--as both an impenetrable mess and as the only way forward for Europe. And both managed to be simultaneously dismissively mean and pandering to the former French President--whether either is merited I leave to my readers. . . . .

Yet for all that, Giscard d'Estaing's cynicism is perhaps well excused. Here was the man who was at the center of the European constitutional project, who as president of the Convention on the Future of Europe, which drafted a new constitution, 2002-03 directed legions of Europe's best and brightest, in the construction of the next stage in the development of the institutions of the European Union in their march toward nationality. And all thwarted by the the common people, including in a twist that must have been particularly hard to take, the voters in his own home state--France. Ah, the rejection. . .and worse, the indifference. . . . .

Yet for all this, Giscard d'Estaing makes a valuable point, and one worth considerable thought: "The Treaty of Lisbon is thus a catalogue of amendments. It is unpenetrable for the public." Valery Giscard d'Estaing, Commentary. While the politicians produced the failed Constitutional Treaty, the lawyers have produced the Treaty of Lisbon. Giscard d'Estaing asserts that the former was an effort at if not a model of clarity and simplification. That, I think, is disingenuous at best. The Constitutional Treaty was well organized, I suppose, but its provisions were dense and complex. Its workings befuddled most and it was not clear how the entire draft would eventually hang together. On the other hand he has a point about the Treaty of Lisbon. Like its predecessor it will suffer from an abundance of complexity. It is founded on the hope that the provisions will hold together well enough to permit the institution of the European Union, the critical E.U. stakeholders and the European Court of Justice to sort things out. A few constitutional crises down the road, it is hoped, everything will be clear.

But what is clear, is that that pattern set by the Treaties of Nice and Amsterdam is been deepened. This is an instrument for lawyers and bureaucrats. Written by and for them, the document is increasingly remote from even well educated non specialists, including lawyers. Giscard d'Estaing hints at the loss of democratic legitimacy in the process of governance evolution within the European Union. He is right on that score. Not that the failed Constitutional Treaty was much of an improvement on that score from the proposed Treaty of Lisbon. The more obtuse the document constituting the government of Europe, the more necessary a class of privileged lawyers and bureaucrats to administer it. The more difficult the process of becoming proficient in the mechanics of E.U, governance, the more possible it may be to hide arbitrary or unlawful conduct, and the more likely that large portions of the population will be effectively marginalized from the process of participation in formulating law and policy. Indeed, this is a general problem of advanced republican states. The rise of representative politics--a politics of non-governmental organizations and interests groups serving as proxies for individual political activity already characterizes many advanced democracies. But within the E.U. the transactions costs of participation become high enough to cause great concern. At its limit, this problem may affect the rule of law basis of the organization of the European Union itself.
Yet the constitutional process over which Giscard d'Estaing presided was hardly the model of a viable alternative to the present intergovernmental model . As I suggested before:
Constitutions tend to be change inhibiting documents. And they tend to shift power to change constitutional foundations from the political (intergovernmental process and treaty revision) to the judicial (treaty interpretations and applications). It is not clear to me that power at the European level ought to shift that far toward the judicial and away from the political branches. See Backer, Larry Cata, "Restraining Powerfrom Below: The European's Constitution Text and the Effectiveness of Protectionof Member State Power within the EU Framework" (July 2004). Federal TrustConstitutional Online Paper No. 14/04. While such a shift might bring a greater degree of stability (to the extent the political institutions are willing to follow through on judicial determinations), it will threaten the sort of slow moving comitology that has served the EU well enough this past half century. Efficiency in foundational norm making, in this case, may not be worth the price of powewr shifting at the Community level. Larry Cata Backer, Constitutional Doublespeak and the EU Constittution, Law at the End of the Day, June 15, 2007.
If Europe wishes to avoid its reconstitution as a princely mandarin state, in which the forms of republican governance hide a functionally aristocratic state apparatus, it might pay some attention to the warning of Giscard d'Estaing. Sadly, the solution does not necessarily reside in the forms of aristocratic authoritarian constitutionalism served up to the people of Europe in the form of the failed Constitutional Treaty. And it may not matter. Constitution writing itself is merely a gateway to the real work of constituting a state apparatus (in whatever form conceived). In the case of the European Union, like that of most advanced democratic political organizations, that post enactment work is highly juridified. See Larry Cata Backer, Cosmopolitan Ideals, the European Union and Its Judiciary, Law at the End of the Day, Sept. 22, 2006. European treaty constitutionalism is hardly a function of drafting and enactment any more (if it ever was). It is in the interplay, sometimes complex, between ECJ, the other institutions of the EU, and the Member State and individual stakeholders in union (of whatever character) that ultimately fashions the nature of the EU in form (and formalism plays a large role in that construction) and effect. The real focus of Giscard d'Estaing, as well as the drafters of the next version of the EU's treaty constitutionalism, should be on the Court.

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