Do the European Treaties Constitute a European Constitution - Coursework Example

Do the European Treaties constitute a European constitution? Introduction: Nation is a concept in which different federating units agree to surrender some part of their sovereignty in favor of federation and in return all the federating units get a common security from external threats and federation follows a common foreign policy. This is not the all exclusive list of rights and duties of a state though. In a nation state, constitution is the fundamental document which governs these rights and liabilities of federating units, its basic structure of governance, its legal system, form of government, system of local governance, rights of its citizens and other basic treatise which are required for smooth functioning of any form of government. This constitution is always in line with the wishes of the people of these federating units in a manner agreed by all. That is the reason that it is considered the supreme law of the land. In the light of the above a question strikes the mind; that what makes a constitution supreme? It is the will of the people who show their allegiance to it and agree to abide by it, through the mechanism of state. This constitution might or might not be in the form of single document. It may also be an unwritten constitution as in case of UK, a brief and short document like constitution of USA or a lengthy document as in the case of France. European Union, unlike a true federation, is a quasi-federating set up created among the sovereign states of the Europe to bring a homogeneity and commonality among these nation states. In order to achieve this objective, the member states have passed through a number of historical phases starting from the concept of European commission to single market and free market to European parliament. This process started soon after the end of Second World War and lasted a span of over six decades. But it would be wrong to conclude that Europe has reached the pinnacle of mutual harmony and understanding and is now capable to be governed under one supreme legal document. Till to date, despite all the pious wish of many people and states, this set up is short of a nation state and have no single document in name of constitution. In the coming lines we will discuss and analysis the presence of a constitution in case of European Union. At the same time, we will look into the possibilities of qualifying different treaties concluded from time to time among different European countries either bilaterally or multilaterally. Legal definition of a constitution: There might be no single definition of a constitution for a federation which might be referred as a universally accepted definition. However, for the sake of considering a starting point, we may consider the following definition propounded by the fathers of constitution in USA. They opined that ‘a constitution is a written document executed by representatives of the people of the United States as the absolute rule of action and decision for all branches and officers of the government, and with which all subsequent laws and ordinances must be in accordance unless it has been changed by a constitutional amendment by the authority that created it.’ (law.jorank.org) In this case it is quiet clear that a constition is a document in writing, executed by the people themseleves or the representatives of the people of any federation. Furthermore in this definition, it is esteblished that in case of the USA, her constitution is the basic document to which all branches and officers of the government are bound by its decisions and any amendment in it is only possible by process indicating in the constitution itself. There can be objections to certain parts of the definition as they do not apply to all nation states but primary principles are almost the same universally. When we observe the situation of European Union, we can identify areas where such acceptence of a supreme legal document is still missing. Features of a constitution: Before proceding further into the debate that weather European treaties constitute European constitution or not, we should first observe the salient features of a constitution. Following are the basic features of a constitution: 1- It must be enacted by the soveriegn. 2- It must refelect the will of the people of the federating unit. 3- Its amandment is not possible other than a prescribed manner. This method is to be provided by the constitution itself and no other method is valid in this regard. 4- Abrogation of the constitution is high treason in most of the constitutions. 5- Constitution is the fundamantal document which provides basic structure of the fedration, government, parliamnet, and governance. 6- It provides the fundamental rights of the citizens. 7- It speaks about the legislative and judicial process in the country. 8- It gives an outline about the foreign policy of the fedration where federating units are not allowed to maintain foreign relationship with other states. (Albert Venn Dicey, 1889) What is a treaty? Now that we have a clear idea of what a constitution is, it would be pertinent to also discuss what a treaty is. A tereaty may be describe as a legal agreement between two or more nation states for mutual good. It is made by the executive of the country and endorsed by its parliament. Therefore, it might be a bileteral or multiletral in nature. Unlike a constitution a treaty needs not to be an elobrate one which must cover all the aspects of interaction or coopreation between the parties. This might be based on a single point like extradition treaty between the nation states is all about handing over of accused of one party state having refuge in the land of the other party. Or Kayto protocol about the enviornment which still needs an accerdiation from its member countries in the shape of ratifiation. (Grolier Incorporated the Encyclopedia Americna) A treaty, as mostly described, is an agreement to do or to abstain from doing somethig by an execitive of a state in return of a corrsponding promise. It would be important to mention that all the treaties are not enforceable at law as they bar the jurisdiction of domstic as well as court of imternational justice. In the light of above we can clearly see that a treaty is at most a legally binding agreement on state to state level but it is neither as supreme as the constitution nor is it always a reflection of the minds of the people of a state. Is European Union a federation and has a constitution? Only half a century ago EU was just a community of six sovereign states which were initially agreed upon creation of a commission to boost their trade and cooperation. Today EU has grown to a bloc of 25 nation states from east Europe to Asia and in future its membership is expected to grow further as there is a list of aspirant countries as well. Eastern Europe has a claim on basis of history and countries like Turkey has a case on the basis of longstanding affiliation with the Europe. But all this growth is a product of half century and thus the system of mutual decision-making is not very old in EU. (Ralf Rogowski, Charles Turner,2006) The question rises that can we compare the current level of mutual cooperation with cooperation among federating units in a state. For being a federation all sovereign states have to first surrender part of their sovereignty in favor of a body and that body to whom this power is surrender acts as a sovereign entity. In the treaties underwent between the members states of EU there is no provision of surrender of sovereignty in favor of European parliament. All the member states are still sovereign as these were before joining the union. Similarly, there is no limit on the rights of parliament in a federation to legislate and according to constitutional theory a parliament can declare a man as a woman and a woman as a man, except the procedure to legislate and to amend the constitution as provided in the book. In this way, it seems that there is no constitution in EU because it appears that since the parliament does not have the overriding powers and in case of legislation its focus is confined to the areas provided for the legislation by its member states. It is important that entry into the union is not governed by the concept of integrated one but it is the will of the state to leave the union when she desires. The treaty upon the entry of a new member provides that there must be consensus among the members about inclusion of a new member but it does not bar its departure from the same. If it would be a federation, such an impairment of any part of a federation must cause a lot of resistance from the federation as well as the federating units of the federation. (Alex Waleigh-lack, Alex Waleigh) EU is by no mean acting as a sovereign federation and in this case any documents available for its governance do not qualify for a constitution by any definition. What are the treaties to constitution in European Union? In year 2004, heads of 25 states signed a treaty to provide a constitution in near future. This treaty is further endorsed by three candidate countries but yet it is not adopted as it still requires a ratification form all the 25 members before its formal enactment. (The CIA World Factbook 2008) By the end of 20th century, the entire bloc of Europe was looking forward for a reunion and reinvention of the glory of greater Europe on the basis of common features like history, language and region. In thrust of the same, European Commission was introduced on basis of trade relationship of the neighboring countries. An initial agenda for the same had an inclusion of the distribution of competencies, simplification and the incorporation of the Charter of Fundamental Rights, the convention on the future of the Europe made the parties able to produce a draft that was nearer to a federating constitution based on the regional level. This draft has adopted features like introduction of a parliament in which all states are equally represented and now it is not the people who are being represented but the states. These states are the individuals and their participation in the process of legislation is through their nominated members’ in the parliament. All the legislation in the parliament is required to be passed by the consensus of all the members except the president who shall not cause the vote. Among the other features there are central laws, judiciary, and dual citizenship, fundamental rights of the member states, code institutional framework, council of ministers and ministry of foreign affairs. (Erik Oddvar Eriksen, John Erik Fossum,2004) Treaty of Lisbon:- Another treaty in this regard was signed by member states of EU on 13th Dec, 2007 commonly known as Reform Treaty of Lisbon Treaty which amended the Treaty on European Union (1992) and Treaty establishing the European community (1957). It was aimed to complete the process of unification started by Treaty of Amsterdam (1997) for an enhancement of efficiency and legitimacy for the union by making Parliament in the Union sovereign. However, it was required to be ratified by the member states through national referendum which has since been made and the treaty is in force since Dec 2009. (Timeline: The Road to Lisbon) This treaty amended some important portions earlier concluded treaties like composition of Council of ministers, judiciary, central bank, status of Fundamental Rights. Are these treaties a substitute to a constitution? Constitution is a legal document enacted by a sovereign parliament in which federating units agree to abide by in all their matters and in any dispute between them will be referred under the same document. But in case of a treaty it is a commitment between states on equal sovereign basis and it might be disputed in a court of law. All these treaties are subject to rectification by the individual parliaments and unless these are ratified by these parliaments, the draft signed in year 2004 does not even qualify for a legally binding document. Legal status of European Union: Fathers of draft for constitution in EU are looking forward to give the union a legal personality in the comity of nations. But it is observed that in the absence of like legal personalities it is difficult to recognize the same. Similarly, all the member states cannot provide this legal status to the union without surrendering their own sovereignty. It is therefore found that status of the EU is still fluid and in any case a treaty cannot change the same. If the members are willing to provide a legal personality to the union, these have to sacrifices their own legal status. Conclusion: In the light of above discussion we can safely conclude that EU is still being governed by sovereign states, each having its own say and free will in most of the international matters. Although there are treaties created by these member states and these treaties have somewhat combined or aligned many policies of the states with each other but these treaties still fall short of being called constitution. In future EU may reach a stage where a common constitution may replace the existing constitutions of the member states but till the day states are enjoying sovereign rights, EU can not be called a federation and the treaties created by member states can not constitute a European constitution. References: Constitution of the United States - Constitutional Convention Of 1787 Albert Venn Dicey, Introduction To The Study Of The Law Of Constitution, 1889,pp 145 Alex Waleigh-lack, Alex Waleigh, Eurpoean Union:the Basics 2008,pp80 Erik Oddvar Eriksen, John Erik Fossum,2004, Democracy in the European Union: Integration through Deliberation, arena.uio.no Grolier Incorporated the Encyclopedia Americna Vol 27,1989, pp 55 The CIA World Factbook 2008, pp372 Timeline: The road to Lisbon". BBC News, retrieved on 07-4-2010, from .http://news.bbc.co.uk/1/hi/world/europe/8337791.stm. R Ralf Rogowski, Charles Turner,2006, The Shape of New Europe, Cambridge. Read More