I would argue that,
from the perspective of the United States, the defeat of the
European Union Constitution in France and Holland was a very
positive development. This is so not merely because that
document was flawed, but because its rejection was a severe
blow to the "European Project" itself. Defeat of the EU
Constitution offers the United States an opportunity to
rethink its approach to the question of further European
integration, and it is an opportunity Americans should
I understand that not
all Americans, and not all American conservatives, would agree.
Support for ever closer European integration has, in fact, been a
fundamental aspect of U.S. foreign policy since the Second World
War ended, and has been supported by both political parties. The
reasons were simple. An increasingly united Europe was seen as
necessary to avoid yet another general war, and as a means of
checking Soviet aggression.
Today, of course, the
Soviet Union is an increasingly distant memory, and those states at
the heart of the European Project, France and Germany, who once
regularly disturbed the world's peace, now struggle to make even
symbolic military contributions against the threat of militant
Islamism. This, in and of itself, would justify a serious
reconsideration of U.S. policy towards European integration. There
is, however, another, far more important reason to rethink that
policy and, indeed, to reverse it altogether. The European
Project, as today defined by its most powerful advocates, and
especially by the leadership of France and Germany, is both
profoundly anti-American and profoundly anti-democratic.
Let us do that most
undiplomatic of things and actually take the European leadership at
its word. The European Project is now an open and determined
effort to create a new super-state that is capable of acting as a
"counter-weight" to American power and influence in the world.
In fact, this already is the role the EU has established for
itself. The Constitution was designed to make its operation more
effective, and to ensure that the smaller states could not impede
the pursuit of this policy.
What is the objective
evidence for this claim- beyond, of course, the public statements
of French, German, and EU officials and their collective efforts to
undermine NATO, U.S. policy in the Middle East, and U.S. policy in
the Far East? I would offer, as an example, the EU's very
determined efforts to force the United States into the
international legal regime established by the Rome Statute of the
International Criminal Court.
For its part, the
United States definitively rejected the ICC in 2002, when
President Bush informed the United Nations that America would not
proceed to ratify the Rome Statute. That treaty is, of course,
a complicated document. There are many very good reasons why the
Bush Administration was right to reject it. Suffice it to say that
acceptance of the ICC's authority would have shifted a most
fundamental attribute of sovereignty-the right to determine the
scope and meaning of the international legal obligations of the
United States-away from our own constitutionally established
institutions to the ICC's prosecutors and judges. The principle of
"complementarity" notwithstanding, for its member states, the
ICC is now the ultimate arbiter of the meaning and application of
the most important international criminal norms related to the use
of armed force. Were the United States an ICC member, the court
would have the right to enforce its interpretation of the
law by prosecuting and imprisoning American officials. The ICC
would not be accountable to the American people for its
The EU, however,
refused to take no for an answer. Its membership dominates the
ICC's Assembly of State Parties, wielding one-quarter of the
available votes (25 of 99) in that body. Eight of the court's 18
judges are citizens of EU member states. Not surprisingly, the EU
has made "universality" for the Rome Statute a primary goal of
its foreign policy, and has taken a number of concrete steps
to achieve this result.
Acceptance of ICC
jurisdiction is, of course, mandatory for any state wishing to join
the EU- and that's fair enough. In addition, however, the EU has
opposed the U.S. policy of obtaining agreements from ICC
member states (whether or not EU aspirants) that would shield
American citizens from ICC jurisdiction-so-called Article 98
agreements. EU officials have justified this policy by
characterizing Article 98 agreements as efforts to obtain
"impunity" for the U.S. The terminology here is highly significant.
It is designed to suggest that the United States is already
properly subject to the ICC's authority, and that it is somehow
trying to escape pre-existing international legal
This is simply not the
case. The rule of law did not begin with the ICC. The United States
has in no way violated its international obligations by
rejecting the Rome statute or by seeking Article 98
agreements to protect its citizens from that court's
extravagant jurisdictional claims-which reach to the officials and
citizens of non-party states and are inconsistent with established
international law rules. America has simply refused to join a new
and untried enforcement mechanism that is, as an institution,
inconsistent with the United States' most fundamental legal and
Perhaps most telling,
however, is the EU's policy of funding American non-governmental
organizations, such as the Coalition for an International
Criminal Court, which are dedicated to changing the U.S.
government's policy with respect to the Rome Statute. This is open
and deliberate interference in the domestic political affairs
of another sovereign. It is, to say the least, an unfriendly
act. It is the sort of thing that the United States has itself
done, in one form or another, in its efforts to bring democracy to
the Soviet bloc and other authoritarian regimes. It is
entirely inappropriate with respect to a fellow democracy. The EU
has, in fact, deployed "soft power" against the United States- and
that is the rub.
The EU has adopted,
and is promoting, a vision of how human society should be governed,
and how the international community should be organized, that
is antithetical to American traditions of independence and
self-government. As an organization, the EU's power is based
on a surrender or "pooling" of sovereignty by its member states. It
is, therefore, hostile to un-pooled sovereignty as an organizing
principle on the international level. At the same time, sovereignty
is the guarantee of self-government.
In this connection it
is high time that American policymakers questioned their assumption
that the European Project is, at bottom, a democratic
experiment. It is not. I would argue that the EU is
increasingly moving towards, and already has adopted in certain
respects, a form of government that fairly can be described as
absolutist or neo-absolutist.
Let us, for a moment,
play "if" history. What if the last two hundred years or so, in
which genuine democracies appeared in Europe, were not leading to
the "end of history"? What if this period of Enlightenment,
Revolution, and Liberalism in the classical sense, was an
aberration, a detour? What if Europe is now returning to a normalcy
of its own, in which elites govern without reference to the
electorate on most policy questions, most of the time?
Consider. As a form of
government, absolutism actually has very little to do with kings
and monarchy. That was simply its drapery last time around.
Nor does it necessarily imply lawlessness or totalitarianism.
Individuals have rights in absolutist states, and may very well be
equal before the law. But absolutism is not democracy.
absolutist government is government by bureaucracy. Not just
the administration of government programs by civil servants, but
the establishment of policies and priorities by men and women who
are not elected and who do not need to regularly answer to the
electorate for their actions.
under the EU principle of subsidiarity-which purports to vest
decision-making authority on various issues at the level nearest to
the electorate "as possible"-the most important decisions already
are taken by the unelected officials in Brussels, particularly
by the European Commission, which enjoys the initiative in most
legislative matters. Indeed, the very fact that European
officials, and other supporters of the European Project, spend
so much time debating what might be the "appropriate" role of
national parliaments suggests that something has gone very,
very wrong. Under the American system of government, of course,
there is nothing to discuss. The appropriate role of the
legislature is to initiate, debate, and enact legislation-to make
policy. Not merely to confirm legislation initiated, drafted and
adopted by others.
Let me emphasize that
the EU's system is not comparable to our own federalism, where
federal law will trump state law in appropriate circumstances.
Under our Constitution, the question is whether an issue will be
decided by elected representatives on the state or national
level. The effect of the EU model is to remove important issues
from the realm of popular politics altogether. To quote Romano
Prodi on the point: "national governments are bound to their
countries' electoral cycles. Short-term domestic agendas can thus
easily deflect them from considering the long-term interests of
Europe as a whole."
Where does this leave
the United States, the product of that period of European
Enlightenment and Revolution. Potentially, very much alone. Great
Britain, of course, may finally decide that it is in, but not of,
Europe. The Danes have been skeptical, when given the opportunity
to express an opinion, as have the Dutch. Oddly enough, however, it
appears that we may also be able to count on the French. Who would
have imagined that?
The analysts have
given many reasons for France's rejection of the EU Constitution,
including economic malaise, animus towards the
"Anglo-Saxon" economic model, and fear of the "terrible," but
very hardworking, Turks. It seems to me, however, that what the
French (and the Dutch) voters were really saying is that the
elites, whether in Paris, Berlin, or Brussels, who have been
pushing the project of a greater European state have not been
listening to them. Their concerns are not valued, let alone
addressed, and they don't like that.
Whatever we may think
of those concerns, this objection is very good news. It suggests
that, at least on the level of the individual voter, the people of
Europe still think that they have a right to have a say in how they
are governed. And that means that there is hope.
But it is just
that-hope. In the near term, the United States must recognize that
the EU is championing a different system of government than
our own, and a different sort of international order from the one
we have known, where American sovereignty has nourished
American democracy. Whatever happens to the European Constitution,
the EU can be expected to continue to promote super-national
organizations as a means of checking American power. We are not
enemies. But we are competitors and the sooner Americans recognize
that fact, the sooner we can set about winning the
Lee A. Casey is a
partner at the law firm Baker & Hostetler LLP, Washington, D.C.
The views expressed here are his own.