Friday, June 13, 2008

Politics and the Irish Vote on the Treaty of Lisbon: A Silly Politics to Bad Effect

So, the Irish have voted to reject approval of the Lisbon Treaty. EU Grapples With Irish No Vote, BBC News Online, June 14, 2008. The Treaty of Lisbon would have imposed the terms of the failed Constitutional Treaty of 2004 (modified a little) in the form of an intergovernmental agreement striped of the word "constitution." The vote was required by the Irish constitution, and necessary for the effectiveness of Treaty of Lisbon, which required approval by all Member States. "The Lisbon Treaty seeks to reshape EU institutions and powers to cope with the bloc's near-doubling in size over the past four years from 15 to 27 nations with 495 million people. It contains many of the same reform plans as the EU's previous master plan — a constitution that French and Dutch voters rejected in 2005." Ireland Holds Key Vote on EU Treaty, International Herald Tribune, June 13, 2008. Yet there is little that has not been said about that, one way or another. See Larry Catá Backer, The Treaty of Lisbon and the EU, Law at the End of the Day, October 30, 2007, and Larry Catá Backer, A Step Forward for EU Treaty Constitutionalism, Law at the End of the Day, June 24, 2007 and Larry Catá Backer, Constitutional Doublespeak and the EU Constitution,Law at the End of the Day, June 15, 2007.

What is interesting, though, is the way in which ratification campaigns have sharpened and dangerously simplified the issues over adoption of a complex instrument. "The government, major opposition parties and business leaders all campaigned for a "Yes" vote during a monthlong campaign that emphasized how much Ireland has benefited from 35 years of EU membership." Ireland Holds Key Vote on EU Treaty, supra. So, that is what the EU has been reduced to -- an organization that owes irs survival to its ability to pay its members off. Charming. But more charming still is the almost insufferable arrogance, an arrogance that might be translated into something like this: listen little and simple people, you were poor once and now you vacation on the Mediterranean and whimper about undocumented workers flooding the countryside while you gain weight from overeating. This is a good thing. And who do you have to thank for this bounty? The EU. It is your mother, Church, protector, and guide. It knows best. And its leaders have been working hard to continue that bounty and protective environment for you. Trust them. Unless you vote for the adoption of this instrument, the EU will fail. Or, in their own words:
Many voters said they did not understand the treaty's implications well enough, and essentially were voting on whether they felt happy with Ireland's place in Europe. "Ireland would still be the economic basket case of Europe without the EU. We should be doing everything we can to help EU institutions function better, because all the evidence shows they function in our interest," said a pro-treaty voter, accountant Padraig Walsh. But many complained that the EU's expansion brought unwelcome change to Ireland, particularly more than 200,000 jobseekers from Poland and Baltic nations.

There is a bit of the extraordinary to this. Sure, Europeans have been trained for centuries to do what they are told--though at the risk of violent explosions from time to time. But it is not clear that today's European is as docile as his fore bearers. But the linkage between the Treaty of Lisbon and the survival of the EU (or at least its ability to progress, whatever that means) is both foolish and dangerous. Foolish because that might well have played a role in the rejection of the Treaty of Lisbon when it had masqueraded as some sort of international constitutionalist instrument. Dangerous because people might begin to believe that this is actually the case.

The EU will not fail or even fall apart in the event of the rejection of the Treaty of Lisbon. Though one might never know this from the usual reactions: "France and Germany have described the No vote in the referendum as a serious blow but have urged the EU to press ahead with the project. European Commission head Jose Manuel Barroso said the treaty was not dead. But Czech President Vaclav Klaus said the treaty was finished, since any further ratification was impossible. " EU Grapples With Irish No Vote, supra. The European Union will continue to function, the integration process will proceed unimpeded, and the consequences--for law, economic, and cultural identity will not be derailed. But what may be finished is this pattern of Treaty modification. The European Union has reached a stage in its development where the patterns of modification grounded in an understanding of political realities of the period 1955-1990 no longer hold. The entity is too big, the nature of treaty constitutional modifications are complex, and most importantly, there has been little discussion of what the people of Europe expect from their supra national governance institutions (rather than what Europe's elites expect from it).

As such, a failure of the Treaty of Lisbon might prove useful. It might force elites in the Member States to more carefully listen to their constituents and to try again. A vigorous debate about the character of the EU is called for just now. ""How many times do people have to vote 'No' before Brussels respects the outcome?" he said, noting that Ireland rejected a previous EU treaty in a 2001 referendum, only to be asked to vote again two years later. "Somehow we have to create an EU where 'No' really means no."" Id. It is, as its elites have rightly suggested, at a crucial point in its development. Will it continue to develop sui generis, creating a system of federalism much more dynamic than that which has essentially failed in the United States? Or will it seek to become a larger standard issue federation of the German, American or even Indian style? See Larry Catá Backer, The Extra-National State: American Confederate Federalism and the European Union, 7 Columbia Journal of European Law 173 (2001); Larry Catá Backer, The Euro and the European Demos, 21 Year Book of European Law 13 (2002). It may be time for the great, even revolutionary, changes of the last two decades to be absorbed by the Member States, and natiuralised within the political and social cultures of the people. The European Union might have to embark on a cultural project now before it continues with its institutional consolidation and realignments.

On the other hand, the institutional structure of the European Union must be sorted out, and the nature and extent of its powers (and the relation of those powers to that of the Member States) must be elaborated. The EU is well past the point where the European Union is well past the point where the European Court of Justiuce can carry the ball for the rest of the institutions (and the Member States). Political and economic asymmetries have to be confronted; some Member States are better off exporting their working age populations, others require substantial help with their agricultural or infra structure sectors. What is clear is that a Treaty of Rome arrangement designed for a post war Europe in which France sought revenge and control and in which the Germans were willing to be docile in expiation of their (great) sins of 1933-45 no longer works. Thus, for example, the French may have to reconcile themselves to the fact that an agricultural system in place since its anti-monarchical revolution in the 18th century might not be the center of attention of European agricultural policy. The English and Irish will eventually have to come off the fence--are they in it or out of it. On the other hand, the evolution of a European structure of governance need not inevitably lead to the creation of the usual hierarchical structure of government. For a region once burdened almost uniformly with "princes", the Europeans have been doing a better job of cooperative republicanism form of governance than their American progenitors. All this to say, the EU will survive the Treaty of Lisbon--whether or not it is adopted. What it cannot survive is a framework in which the populace is meant to be kept docile, governance power is protected by resort to increasingly byzantine governance devices meant to limit access to knowledge (and power) to small groups of elites, and a brinkmanship politics that appears to embrace democratic participation and then dares the populace to use its power. See Larry Catá Backer, Democracy Part II:Voting Among the Unruly Masses, Law at the End of the Day, November 16, 2007.

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