The EU Constitution: Unfit For Purpose?
The EU Constitution: Unfit For Purpose?
Sir Ken Frobisher led the Crown Prosecution Agency from 1993 to 2010, when he was elected Chief Justice of the ECoJ in Europolis. He served one term as Chief Justice and another as a Justice, before retiring in 2011. In this lecture, given at the University of Edessa Law Society, Frobisher, 74, outlines what he sees as the problems inherent to the Constitution of the European Union in its current form, and what he believes needs to be done to solve them.
“Ladies and Gentlemen, thank you very much. I’d first like to offer my thanks to the President of the Society, Ms. Gilbert, for inviting me to speak here today. Now, I would like to speak to you tonight about the document that governs the relationship between our Nation and our Region; the document that I devoted ten months of my life to; the Constitution of the European Union. I believe that, in its current form, this document is unfit for purpose. Though it has been considerably improved by the work of the 2011-15 Constitutional Committee, it remains in places confused at what, exactly, it is governing, and there are many things that, as the sole and supreme document of international law over this country and the rest of the European Union, it should do, and yet does not do.”
“The European Union is not a country. Nor do the Angleteric public wish it to be so. It is an international organisation founded and governed by a single treaty, which is the Constitution of the European Union. Its signatories are not individuals, but the member-states themselves. See, for instance, the very first line of the preamble – ‘We, the sovereign nations of the European Union’. So I would like first and foremost to apply this principle, this basic fact of what the European Union is, to the debate about the role of the European Court of Justice. In the last couple of weeks we have seen Commission candidates advocate a sort of Europol for enforcement of the Constitution. This is wrong-headed. It is fundamentally at odds with what I just cited in the preamble.”
“In the first instance, I do not believe that an international treaty organisation should have its own pseudo-military force to force nations to abide by its rules. A treaty organisation is voluntary and comprised of sovereign entities who should be free to abide by its rules or not. Angleter does not belong to the European Union, and the European Union cannot compel us by force. But the fact remains that a breach of the Constitution, or of Council legislation, is a breach of that treaty. Enforcement, therefore, should be limited to suspension, perhaps in various degrees, from the European Union. A nation that does not believe that it is subject to the Constitution should not enjoy the privileges it offers – the right to speak and vote in the Council; the right for one’s citizens to sit on the European Commission or the European Court of Justice.”
“I would also note that in its current form, there is no basis for the trial of private citizens or organisations at the European Court of Justice. The Constitution explicitly says, true, that ‘nations, institutions, or individuals’ may be the subject of petitions in the European Court of Justice. But only nations signed up to this treaty. The European Union is not a country with citizens – the phrase ‘citizen of the European Union’ is used once in passing in the Constitution, sure, but the concept is not at all formalised. It is an organisation with signatories, and only they should be liable to be tried before the European Court of Justice. If I were to breach the UDoHR tomorrow, I should not be hauled before the ECoJ for it; but I should be hauled before the Angleteric courts for it. It is, after all, Angleter that agreed to the Constitution and agreed to apply its terms within its borders. If I were allowed to get away with it by the Angleteric legal system, then Angleter should then be hauled before the ECoJ. That is how it should work at present.”
“There is, however, no reason why we should not all agree as member-states to some form of international criminal jurisdiction. But at present there is no international legal framework for that. And that leads me to a question you may have asked earlier – why would a member-state want to avoid the penalty of suspension from the European Union? What does membership of the European Union actually offer? And you’d be right to ask that question. It is another reason why the Constitution in its current form is unfit for purpose.”
“The Constitution is, after all, the sole and supreme international legal document over this nation and over the other member-states of the EU. Yet it is severely lacking in terms of actual international law. We talk all the time in Euro circles of ‘sovereignty’. It’s there in the preamble – the sovereign nations of the European Union. But we have no codified concept of it. What is sovereignty? We look at the Constitution and we’re none the wiser. What happens to a nation that breaches another’s sovereignty? Well, nothing, because we do not even have a concept of what constitutes a breach of sovereignty. We can hardly ban it, then, can we? We need an international law of sovereignty and jurisdiction.”
“Some things are, granted, already in the Constitution. The UDoHR covers international human rights law adequately. It and Article VI of the Constitution cover some aspects of international war law too. But the laws of war need fleshing out better. And an area where we are severely lacking is international law of the sea and airspace. We technically have no concept of individual nations’ waters and airspace, nor one of international waters and airspace. I’ll leave it to your imaginations as to what nightmares that legal black hole could throw up. I’ll just say it again. We need an international law of sovereignty and jurisdiction.”
“Once we have that, we have some of the legal framework for international criminal and civil jurisdiction. International waters and airspace require international courts; as do matters regarding, say, diplomats. Perhaps some other cross-border matters where no single country can claim jurisdiction, although I would strongly advise against going overboard with that. But we would, of course, require international criminal and civil legal codes for that.”
“The Constitution should also cover matters of international trade and economic affairs. The Framptonian interest rate/tariff dispute last year demonstrated the need for international law to tame the Wild West of regional economics. EU member-states would then be protected from punitive tariffs, currency manipulation, trade barriers, dumping, payment issues, intellectual property and patent issues, and so on. The establishment and enshrinement in the Constitution of agencies covering such issues at a closer level would also be beneficial. And, of course, this would allow the ECoJ to arbitrate in case of international trade and economic disputes.”
“International law is about having basic rules that govern what sovereign states are and how they interact with each other. At present, we have only the Right of Neutrality, which has only been invoked, as far as I am aware, once in its entire history, and only then by a nation that left the EU that same month; as well as the UDoHR, which imposes upon states. Small wonder that we find people in Europolis clamouring for sticks with which to keep member-states in line – the European Union demands much and offers little. But if European Union membership were to come, as it should do, with international law that defines and defends a state’s sovereignty, on land, in the air, and in the sea, then perhaps there would be no cause for Europolis to whack anybody with a stick. Likewise, if it clearly defined matters of legal jurisdiction and offered international courts for matters that need them. And if it offered them economic and trade protections that provided for a fair and level playing field.”
“So I will finish by listing the eight key points of what needs to be done to make the Constitution truly fit for purpose. Something that those of you who’ve fallen asleep in the middle can take home. I would suggest a Constitutional Convention, or something similar, to achieve the following goals:
- Reforming the language of the Constitution to clarify what the European Union is;
- Reforming the Right of Neutrality into a broader Convention on the Conduct of War;
- A Convention on National Jurisdiction and Sovereignty, to be incorporated as an Article in the Constitution;
- A Convention on the Law of Treaties, to be incorporated as an Article in the Constitution;
- A European Criminal and Civil Code, to be incorporated as an Article in the Constitution;
- A European Economic and Trade Accord, to be incorporated as an Article in the Constitution;
- Reforming the Article on the European Court of Justice, adding any new responsibilities and clearly delineating them;
- Studying other areas, such as security and environmental affairs, to determine whether further action is desirable at a Constitutional level, and if so, taking such action.
Through such reforms, we can create a Constitution that does what it needs to do as a supreme document of international law, and make European Union membership something that nations will think twice about surrendering. Thank you very much.”