Constitution or Treaty?

Abstract

How are we to read the Draft European Constitution? According to the documents submitted to the European Council in June 2003 and endorsed by the Intergovernmental Conference a year later its full name is 'Draft Treaty establishing a Constitution for Europe.' There is a Treaty that establishes a Constitution. This leaves open, it seems, two possibilities as to the nature of this document. We can either put emphasis on the new word 'constitution' and read this document in a familiar from public law way as a 'constitution,' i.e. as a text that establishes a coherent legal order and a coherent set of institutions laying out in a comprehensive way the relations between citizens and political power. Or we may put emphasis on the word 'treaty' and read the new text in exactly the same way that we have been reading the EC and EU Treaties, i.e. as agreements between states that are equal to one another and pool some of their powers for a common purpose. It goes without saying, of course, that in this context the treaties are still special in that they establish a 'sui generis' entity, whose powers go well beyond that of a conventional international organisation. But the term 'European Constitution' would in this latter reading be no more significant for the EU than the term 'constitution' has been for the International Labour Organisation. It would just be a convenient name for the main treaty.