The recent demise of the anti-American Schroeder-Chirac
partnership has allowed for renewed optimism in Washington about
relations between the United States and the European Union (EU).
However, the reemergence of the draft EU constitution
represents a fundamental threat to American interests far more
profound than the hostility of any one European leader. This draft
constitution challenges U.S. strategic, diplomatic, judicial, and
military interests. It enshrines modish and ephemeral values as
supreme law for 25 separate nation-states with the intention of
fully globalizing its lofty and elite-driven policies.
States needs to recognize the threat posed by Brussels' drive to
centralize huge swathes of public policy as having significant
negative implications for America and respond to that threat by
applying appropriate diplomatic pressure to ensure that U.S.
interests are upheld within the transatlantic alliance.
Reflection--Forcing a Way Forward
Establishing a Constitution for Europe will codify the supreme
legal basis of the EU's 25 member states, marking a monumental
departure from the traditional, incremental treaty-based approach
to European integration. Perhaps because of its magnitude (or more
likely in a fit of frequently imagined "European solidarity"), the
constitution's drafting Presidium declared that unanimous agreement
from all member states would be required for it to progress and
that a rejection by one would mean a rejection by all. Ratification
would proceed immediately by either parliamentary process or
rejection in two democratic referenda in 2005 should therefore have
ended this "grandiose project." At a moment when the
unanimity of all 25 EU member states was an agreed prerequisite for
the constitution to go ahead, two of the six founding
members--France and Holland--rejected it by large margins.
Whether these results came in spite of or because of strong
political and moral pressure from above is unimportant. The bottom
line remains that the EU constitution was rejected in two freely
and fairly conducted national referenda.
Europe, the EU constitution is widely assumed to be dead, but the
dominant reaction within Europe since 2005 has been to force a way
forward, regardless of the outcomes of the two referenda. In fact,
just hours after France's "Non," Jean-Claude Juncker, Prime
Minister of Luxembourg and arch integrationist, declared: "The
European process does not come to an end today." President of the
European Commission José Manuel Barroso stated: "What is
important is to recommit ourselves to this vision of Europe."
Vice-President Margot Wallström went even further, arguing for
augmenting the constitution to include environmental commitments
inspired by the Kyoto Protocol. For Europe's elites, the
constitution is anything but dead.
Member States: Will
They Find a Way Forward?
powerful Franco-German axis has taken on the mantle of
resuscitating the constitution. As German Chancellor Angela Merkel
took office in November 2005, she stated that the votes in France
and Holland should "by no means lead to the idea of the
constitution being given up." Her Foreign Minister,
Frank-Walter Steinmeier, similarly declared that "There is
absolutely no reason to give up on the constitution," although he
also suggested that the name itself could be changed to allay
presidential candidate Nicolas Sarkozy has proposed a "mini-treaty"
encompassing the most unpalatable provisions of the constitution,
including a foreign minister, the abolition of several national
vetoes, and tax-raising powers for Brussels. In an impressive
display of political unity ahead of the 2007 presidential election,
Sarkozy is joined by his closest rival, Socialist candidate
Ségolène Royale, who wants "a great European project
that affects people's daily lives."
European leaders are also keen to move forward. Italian Prime
Minister and former European Commission President Romano Prodi has
called for a simplified version of the constitution to be
introduced forthwith. Greek Prime Minister Kostas Karamanlis
has warned against "inertia" about the future of the constitution
during this official period of reflection. In fact, the
governments of Denmark, Finland, and Luxembourg have all come out
in vocal support of reviving the draft constitution.
public, however, are unlikely to support this constitution, or
indeed any constitution emanating from Brussels. Neither Prime
Minister Tony Blair nor his likely successor Gordon Brown has the
appetite for the tremendous political dogfight that would be
necessary to foist this on the British people. British Foreign
Secretary and Blair loyalist Margaret Beckett struck a note of
finality when she commented that the constitution was "a grandiose
project but it didn't come off." The British are joined by
the Dutch, who are inclined to respect the wishes of their people,
and the Poles, who want to reopen the Pandora's box of members'
voting rights. An elite-driven attempt to push on with the
constitution in its current form will meet significant
capitals engage in heated debate about the future of a formal
document, the reality must not be ignored that much of the document
has been or is being implemented in spite of the 2005 rejections;
the EU intends to press on regardless. In fact, the European Union
habitually introduces legislation in the absence of any real legal
basis, with treaties and protocols merely confirming a preexisting
reality thereafter. Any judicial review will be conducted by the
European Court of Justice, which has "ever closer union" as its
primary mandate. This is how Europe has approached much of the EU
constitution. Countless EU agencies and legislative
initiatives--substantially contrary to American interests--have
been established since June 2005, as if the constitution were
already in force.
Policy. Article III-257 of the draft constitution proposes "a
common policy on asylum, immigration and external border control."
Article III-266 states: "The Union shall develop a common policy on
asylum." Regardless of the constitution's rejection, the European
Commission issued a Returns Directive on September 1, 2005,
establishing a common asylum policy in which the European
Convention on Human Rights would henceforth trump national
legislation in determining treatment of deportees--adding yet
another complication to already controversial extradition
Space Program. Article III-254 tasks the EU with formulating "a
European space policy" to ensure that "all European space
activities will be launched from a single coherent platform." On
December 28, 2005, seven months after the French and Dutch
referenda, the GIOVE-A satellite was launched in anticipation of
the joint EU-Chinese Galileo satellite system, representing a
serious strategic threat to future American military interests.
Agency. Article I-41
declares: "An agency in the field of defense capabilities
development, research, acquisition and armaments (European Defense
Agency) shall be established." In fact, the European Defense Agency
opened its Brussels headquarters in 2004. The EDA continues to
describe its purpose and role in the exact words of the rejected
constitution: "defense capabilities development; armaments
co-operation; the European defense, technological and industrial
base and defense equipment market; research and technology."
This will greatly exacerbate the anti-American inclinations of
current EU procurement policy.
Policing Methods. Article III-275 sets
out extensive policies for "police cooperation." Just months after
the supposed death of the constitution, the European Police College
opened in Bramshill, United Kingdom, together with radical
restructuring of Britain's police force in line with European
regional constituencies. This was in spite of warnings from
Britain's own Intelligence and Security Committee that this move
could threaten the local knowledge important to counterterrorism,
potentially undermining transnational cooperation with one of
America's strongest allies in the war on terrorism.
Fundamental Rights. One of the
constitution's most controversial proposals is the Charter of
Fundamental Rights, a charter so all-encompassing that it "covers
everything from the right to equal pay for men and women to the
right to access health care and medical treatment."
Once again in disregard of the constitution's rejection, the EU is
continuing with plans to establish an Agency for Fundamental Rights
in Vienna in 2007 "to ensure that the values enshrined in the
Charter of Fundamental Rights are respected."
A Rival, Not a
of the EU constitution poses a grave threat to American security
interests in Europe. At the heart of the document is the concept of
a formal "legal personality" for the European Union, allowing it to
"speak with one voice" on the international stage in place of
individual member states. The constitution would create a powerful
European Foreign Minister and create a system in which America
would be forced to negotiate with a single European power instead
of forming ad hoc coalitions with sovereign nation-states and
traditional allies. In a European Union where hostility to American
power and interests predominates, this represents a clear and
present danger for American alliance-building in Europe.
During her 2005
trip to Europe, U.S. Secretary of State Condoleezza Rice made
robust statements in support of further European integration.
What the Administration needs to realize is that the European
constitution, with its advanced Common Foreign and Security Policy,
goes far beyond creating a modest or inconsequential European
identity; it supersedes traditional tools of foreign policy-making,
such as alliance-building.
collapse of the Soviet Union, the perceived need for another power
to "counterbalance" the United States has motivated European
integrationists. This thinking was displayed by the EU most nakedly
during the buildup to Operation Iraqi Freedom, in which powerful
nations not just critiqued, but also obstructed American foreign
policy. EU accession countries were even threatened with delays to
their accession for supporting the war. Underlying this diplomatic
crisis was the message that the time had come for Europe to
directly challenge a sovereign foreign policy decision of the
United States in an attempt to contain American power.
has been driven home by EU elites for some time now.
- Former French Prime Minister Lionel Jospin's attack on
America's status as an "unchecked hyper-power" supplemented
former President Francois Mitterand's assertion that "we are at war
with America....[T]hey are voracious, they want undivided power
over the world."
- German Chancellor Gerhard Schroeder argued for further European
integration on the grounds that "whining about U.S. dominance does
not help, we have to act."
- Belgian Prime Minister Guy Verhofstadt describes the direction
of the EU in terms of a European "emancipation" from the United
- Spanish Prime Minister Zapatero openly talks about
deconstructing American global influence within two decades.
Any future EU
foreign policy will undoubtedly revolve around this anti-American
world vision in which Europe is a counterweight to the United
States--a rival, not a partner.
virulent anti-Americanism prevails within many European
governments, it is insufficient to prevent the United States from
dealing with individual allies to build ad hoc coalitions. In spite
of boasts by the European Commission that "EU diplomats...have over
time come to share the reflex of a European response to foreign
policy issues and dilemmas," foreign policy remains--in
large part--the preserve of European nation-states. The European
constitution would reverse that completely.
and I-41 set out the EU Common Foreign and Security Policy,
demanding the "achievement of an ever-increasing degree of
convergence of Member States' actions." A single European foreign
policy would require "a common approach" with consultation before
"undertaking any action on the international scene or any
commitment which could affect the Union's interests." Article
III-294 prohibits dissent from the consensus: "Member States shall
support the common foreign and security policy actively and
unreservedly in a spirit of loyalty and mutual solidarity." The
EU's single foreign policy would then "be put into effect by the
Union Minister for Foreign Affairs and by the Member States, using
national and Union resources." Put into force, this would make
current High Representative Javier Solana a full foreign minister
with a mandate to dictate foreign policy through his very own
European diplomatic corps.
constitution's defenders argue that member states would enjoy a
national veto in foreign affairs under the "common approach"
requirements of the constitution. However, a Europe unable to reach
agreement would have to come to a majority consensus or national
vetoes would deprive EU member states of any active foreign policy,
either as a bloc or as individual states. The capacity of the
United States to build coalitions and alliances through bilateral
discussion and diplomacy with individual nation-states would all
but cease. Either way, it is a lose-lose situation for constructive
Nations Security Council, where Britain and France enjoy separate
permanent seats, would present a strange beast under a united
European foreign policy. The drafting Presidium considered unifying
the seats into a single EU seat but dropped the recommendation
after strong political backlash. However, the language of "unity,"
"coherence," "consultation," and "unification" allows for the
dominance of a powerful EU foreign minister to permeate U.N.
alliance-building and potentially undermine the close voting
relationship that the U.S. and U.K. currently enjoy.
military procurement would also undoubtedly be a casualty of a
united European foreign policy, with the European Defense Agency
and the European Space Program dominating the procurement agenda.
The decision to spend £1.4 billion on the European Meteor
air-to-air missile rather than buy an existing product from the
United States at a fraction of the cost evidences the extent of
anti-Americanism in the current European Union. At the heart of
the European Space Program is the Galileo project--the costly and
unnecessary pursuit of a European global positioning system
independent of the United States. China has bought itself the same
privileges through a 20 percent stake in Galileo, creating the
possibility--greatly damaging even as a possibility--that European
systems could be used to guide Chinese missiles to American targets
in any future conflicts.
individual European allies with a single EU foreign minister in any
context or institution is a bad idea. Inevitably, even if
unintentionally, American interests will lose in the discussions
that matter most. As Henry Kissinger has said:
When the United States deals with the nations of Europe
individually, it has the possibility of consulting at many levels
and to have its view heard well before a decision is taken. In
dealing with the European Union, by contrast, the United States is
excluded from the decision-making process and interacts only after
the event, with spokesmen for decisions taken by ministers at
meetings in which the United States has not participated at any
level....Growing estrangement between America and Europe is thus
being institutionally fostered.
insidious long-term threat to American values is posed by Part II
of the draft European constitution, the Charter of Fundamental
Rights. The EU has proposed a Fundamental Rights Agency to ensure
that this part of the treaty will come into force as quickly as
possible. The charter's 51 clauses are more plausibly a charter for
permanently expanding government than a means of protecting the
individual from state power, and America will not be
immune from this greatly expanding scope of state power.
application of phony customary international law, no matter how
erroneous, into the American judicial system has given much hope to
Brussels that its core values and principles can and will be
universalized. On significant public policy questions--from
juvenile death penalty cases to environmental
regulatory protocols--activist American judges have taken a
degree of moral and legal comfort in citing foreign law in their
decisions. As Jeremy Rabkin stated, "the Supreme Court has recently
invoked foreign legal decisions as a guide to interpreting the U.S.
Constitution--on the apparent assumption that our own constitution
ought to be consistent with what the Court has called the opinions
of 'the world community.'" Increasingly, foreign law is being used
as a "rhetorical weapon" against the United States.
confirmation hearings of Supreme Court nominees John Roberts and
Samuel Alito, Members of Congress specifically referred to the
troubling trend of American courts citing foreign law in
interpreting the Constitution as something that must be resisted.
The wrongful interpretation of the American Constitution on the
basis of foreign law would only increase with an EU constitution
that encompasses such a vastly prescriptive legal enterprise. As
Homeland Security Secretary Michael Chertoff said recently, "what
we see here is a vision of international law that if taken
aggressively would literally strike at the heart of some of our
basic fundamental principles."
Scalia notes that the Framers of the U.S. Constitution were
absolutely clear that the U.S. has a different moral and legal
framework from Europe, one that is jeopardized by the aggressive
expropriation of EU law. The European Court of Human Rights has
been responsible for some truly egregious rulings in recent
years. With a Charter of Fundamental Rights, the
European Court of Justice and European Court of Human Rights would
together preside over the final destruction of common law tradition
and promote judicial activism both within and outside of the
How U.S. Policy
Toward Europe Should Be Changed
- Recognize the threat posed to U.S. strategic,
diplomatic, judicial, and military interests by the draft EU
constitution. The Administration needs to send a powerful message
that it will ensure that its interests are upheld within the
transatlantic alliance and that it will use the full range of U.S.
economic, political and diplomatic tools to defend U.S. interests
against public policy that runs contrary to those interests. It
should encourage the expansion and global focus of NATO and oppose
the militarization of the European Union, which will duplicate and
undermine NATO structures. The Administration should send a
consistent message that the EU constitution threatens American
values and interests and should resist offering any support for
- Support U.S. allies who actively pursue the conservative
vision of a European Union of self-determining, sovereign
nation-states. Conservative Party leader David Cameron has recently
committed the British Conservative Party to leaving the highly
federalist European Parliamentary grouping of the EPP-ED in 2009
and is likely to form a new pan-European group of genuinely
reform-minded center-right parties, such as the Czech Civic
Democratic Party and Polish Law and Justice Party. The
Administration should signal its willingness to work closely with
new groups in Europe on issues in which constructive engagement is
beneficial to American interests.
- End support for a unified European foreign policy.
Friendly relations with individual EU member states must be the
highest priority for America's vast diplomatic service and remain
the primary focus for future European visits by the Administration.
The Administration should extend serious diplomatic credibility to
allies that it would hope to rally for future initiatives and
should continue to work closely with individual foreign ministers
in institutions such as the United Nations and NATO. The
Administration should work with new and old allies at the national
level to approach common challenges.
- Establish ad hoc coalition-building as an essential tool of
U.S. foreign policy-making. Although traditional
alliance-making has been complicated since the end of the Cold War,
Britain will remain America's strongest European ally for some
time, supplemented by a vast array of strategically important
countries in Central and Eastern Europe. The Administration needs
to signal its willingness to work with multiple partners on a
variety of stages and resist the "speak with one voice" approach.
The Administration should leverage its economic and diplomatic
might to continue constructive dialogue with those at the heart of
power rather than with those who merely wish to be.
- Use diplomatic and economic tools to support its allies'
opposition to an EU détente with China. The
Administration needs to work closely with its plentiful allies in
Europe with which it shares common strategic interests on the
question of China. It should use the full range of U.S. foreign
policy tools to support opposition to Brussels' attempts to lift
the EU armsembargo on China. The
Administration should make clear that U.S. policy remains firmly
opposed to lifting the embargo and that, if necessary, the U.S.
will economically punish companies and countries that endanger U.S.
interests and stability in the Taiwan Strait.
- Support congressional and judicial opposition to the use of
foreign law in interpreting U.S. law. The Administration and
Congress should support measures seeking to limit the scope of
foreign law being used to interpret the American Constitution.
American states should not seek to circumvent presidential
authority on legislative measures such as the Kyoto Protocol, which
the EU pushes on a state and regional level, having failed at the
In her famous
1988 Bruges Speech, Margaret Thatcher laid out a vision for
the future of Europe, a powerful alternative to relentless
integration and further centralization. Her internationalist,
decentralized vision for Europe leaves power vested in sovereign
national parliaments and contrasts sharply with the EU
constitution's federalist vision of a European superstate.
America needs to
recognize that this is where its values and interests are best
served. Lady Thatcher presided over a period of exceptionally
successful transatlantic relations and left a legacy that should be
preserved. She put forward an intellectually powerful model of
intergovernmentalism for Europe in her Bruges Speech--one that the
draft EU constitution would relegate to history.
Sally McNamara is Senior
Policy Analyst in European Affairs in the Margaret Thatcher Center
for Freedom, a division of the Kathryn and Shelby Cullom Davis
Institute for International Studies, at The Heritage Foundation.
The author is grateful to Peter Cuthbertson, Research Intern in the
Margaret Thatcher Center, for his assistance in preparing this
 Nicholas Watt, "EU
Constitution a Grandiose Project That Failed, Says Beckett," The
Guardian, October 18, 2006, at www.politics.guardian.co.uk/print/0,,329603460-107988,00.html
(December 7, 2006).
 Rejection was carried
by 55 percent in France and by 61.5 percent in the
 George Parker, "Would
a Constitution by Another Name Smell Sweeter?" The Financial
Times, May 29, 2006.
 Mark Beunderman,
"Brussels to Defend 'Core' of EU Constitution in Treaty Talks,"
EUobserver, October 19, 2006, at www.euobserver.com/18/22676 (December 7,
 Mark Beunderman,
"Merkel Says Germany 'Will Not Solve' EU Constitution Limbo,"
EUobserver, October 30, 2006, at www.euobserver.com/18/22761 (December 7,
 Agence France-Presse,
"EU Seeks More Time to Resurrect Constitution," May 28, 2006.
 Beunderman, "Brussels
to Defend 'Core' of EU Constitution in Treaty Talks."
 Agence France-Presse,
"Italy's New Leader Sees Simplified EU Constitution," May 29,
 Agence France-Presse,
"EU Seeks More Time to Resurrect Constitution."
 Agence France-Presse,
"Denmark Would Put EU Constitution to Referendum: Foreign
Minister," May 29, 2006; Parker, "Would a Constitution by Another
Name Smell Sweeter?"; and William J. Kole, "EU Envoys in No Rush to
Revive the Continent's Troubled Constitution," Associated Press
Worldstream, May 28, 2006.
 Watt, "EU
Constitution a Grandiose Project That Failed."
 David Rennie and
Philip Johnston, "EU to Set Down New Rules for Expelling
Extremists," The Daily Telegraph, August 31, 2005.
 "A System to Make
Jove Proud: Satellite-Navigation Systems," The Economist Global
Agenda, December 29, 2005.
 Social Rights
Bulgaria, "European Commission to Establish an Agency for
Fundamental Rights," August 17, 2005, at www.socialrights.org/spip/article1242.html
(December 7, 2006), and European Parliament, "MEPs Back EU Agency
for Fundamental Rights for 2007."
 Philip Stephens and
Daniel Dombey, "Rice Pledges Washington Support for a Common
European Foreign Policy," Financial Times, February 11,
 Associated Press,
"Schröder to Europe: Unite vs. US," December 28, 1999.
 John Vinocur,
"Criticism of U.S. Obscures Growing Disunity on Continent; What
Does Europe Want?" International Herald Tribune, January 20,
 Irwin M. Stelzer, "An
Alliance of Two," The Weekly Standard, November 22,
 Bill Cash, "United
States Policy on European Integration: An Understandable But
Strategic Error Since 1990," European Foundation, The European
Journal, Vol. 13, No. 3 (March/April 2006), p. 14, at www.europeanfoundation.org/docs/March%20April%202006.pdf
(December 7, 2006). For a full analysis of how British procurement
is being directed in favor of the EU and in opposition to the
United States, see Richard D. North, "The Wrong Side of the Hill:
The 'Secret' Realignment of UK Defence Policy,"
DefenseIndustryDaily.com, August 2005, at www.defenseindustrydaily.com/files/UK-EU-US_Wrong_side_of_the_
hill_def_4.pdf (December 7, 2006).
 Henry Kissinger,
Does America Need a Foreign Policy? (New York: Simon &
Schuster, 2001), p. 57.
Simmons, 543 U.S. 551
 Lawrence A. Kogan,
"Precautionary Preference: How Europe Employs Disguised Regulatory
Protectionism to Weaken American Free Enterprise," International
Journal of Economic Development, Vol. 7, Nos. 2-3 (2005).
 Reuters, "Chertoff
Says U.S. Threatened by International Law," November 17,
 Antonin Scalia,
speaking at the "Constitutional Relevance of Foreign Court
Decisions" forum, American University, Washington College of Law,
Washington, D.C., January 13, 2005.
 In 2001, the families
of eight terrorists shot during an attack on a police station were
each awarded £10,000 in compensation for their loss after the
European Court of Human Rights ruled that the terrorists' human
rights had been violated. BBC News, "UK Condemned over IRA Deaths,"
May 4, 2001, at www.news.bbc.co.uk/2/hi/uk_news/northern_ireland/1311724.stm
(December 7, 2006).