President Bush's recent visit to the European Commission (the first by a U.S. president) and his endorsement of a "strong Europe" were largely seen as signaling a new paradigm of American foreign policy towards Europe. Not only did the president distinguish himself from a New Europe-Old Europe mindset, he also suggested that on a variety of issues the United States would accept the apparent inevitability of European political union and increasingly conduct its foreign policy with the largely unaccountable bodies of the European Union. The Bush Administration is demonstrating that it believes a united Europe is not only desirable, but also feasible.

This U.S. paradigm shift is unstable. America is courting a host of difficulties by interacting with the European Union and its subordinate bodies, rather than dealing bilaterally (or in ad hoc conjunction) with EU member states and their elected leaders. First, the EU willingly involves itself in foreign policy matters at the remotest edges of its authority. Since that authority has not been (and for the foreseeable future will not be) constitutionally legitimated or conferred by treaty, America's joint endeavors with the European Union may lack effectiveness and sustainability. In addition, by dealing with the European Union itself in high-profile foreign policy matters, the world's only superpower is in effect bolstering the EU's authority. The United States is being unnecessarily drawn to one side of a distinctly European conversation about the proper role of the European Union in foreign and security policy--a conversation which is far from settled--thus bringing the EU's long-standing problems of democratic legitimacy to America's shores.

And even given a high degree of legitimacy, there would still be inherent structural problems with the EU system that can make for contradictory and chaotic policymaking. Such structural problems also present difficulties for joint U.S.-EU initiatives. Although sanguine statements regarding EU unity may have a certain flourish, a single EU member state's electorate could register its disapproval of cooperation with U.S. policy and scuttle any joint efforts.

Until the Europeans as a whole decide the parameters of EU authority, the United States must suspend its current assumption that the foreign policy organs of the European Union speak for all countries on any particular issue. The United States should choose to deal with the European Union only when the stakes and costs for doing so are be quite low and when success with third parties does not depend on quick and resolute action.

The Identity Crisis

The treaties that govern EU foreign policy lag far behind the aspirations of EU elites for "ever closer union." The Treaty Establishing a Constitution for Europe, also known as the European Constitution, was to have been the final expression of political union among the member states--and would have centralized and bolstered the EU's jurisdiction on foreign policy.

First, the constitution would have eliminated the legal difference between policy made under European Community (EC) law--which handles matters concerning the single market, including trade with foreign nations, and is the successor to the 1957 Treaty of Rome--and policy made under the Common Foreign and Security Policy (CFSP), which currently is broader in scope but governed by different and more cumbersome rules of policymaking than EC policy. The constitution would have allowed for CFSP decisions to supersede member states' laws for the first time. Moreover, a great many CFSP matters that now need to be decided unanimously, including management of various new foreign policy organs, would have been determined by a "qualified majority", or the number of member states representing a majority of the total population of the EU. Thus, the constitution would have abolished the national veto each member state holds under a regime of strict unanimity, as to those matters.

The constitution would also have made the EU's treaties with foreign countries on any subject binding on all member states, without the need for each state to also ratify the agreements. And a co-vice president of the European Commission, also the single EU minister for foreign affairs, would have coordinated policy on pre-existing EU functions and on new institutions, such as a diplomatic corps and the European Defense Agency. In all, the constitution would have created a legal entity capable of formulating and executing foreign policy for member states.

But the EU draft constitution has presumptively failed. "No" votes in France and the Netherlands in May and June 2005 appear to have stalled the ratification process permanently. If, as Dutch Foreign Minister Bernard Bot said, "the constitution . . . for the Netherlands is dead. As far as we're concerned, there's no debate that this constitution will again be submitted for ratification", then unanimity will be impossible. In addition, Denmark, Ireland, Portugal, Sweden, the Czech Republic, Poland and Britain still have to decide whether and when to have a referendum. As such, the four-fifths consent required by the October 29, 2006, deadline for the European Council (which groups EU heads of state) to be able to discuss further implementation options will also prove elusive.

EU elites appear to be in different states of recognition of these circumstances. For every leader of a member state willing to recognize that the constitution is dead, another rises up and states that the document is merely being "reflected upon." In January, for example, the European Parliament showed its unwarranted optimism for the constitution when it refused to pass a resolution stating that the constitution was "null and void"; it was defeated by a 452-to-107 margin. But German Commissioner Gunther Verheugen, the archetype of the largely invisible but enormously influential EU elite, has revealingly diverged from his usual mantra that "European integration [is] the most successful idea in the history of Europe", to the grudging acknowledgment that the EU is currently in a state of crisis.

The constitution's failure has sparked a conflict between France and Germany (both pro-EU stalwarts), over the prospect of resubmitting a constitution to the French people, and likely others. Angela Merkel, chancellor of Germany--which sacrificed its proportional voting rights in the Nice Treaty (an issue the constitution was to redress)--has stated that the document should be presented anew to the French, as "This constitution has so many positive elements that we must not abandon it."

France's president, Jacques Chirac, is still a proponent of the constitution but is extremely skittish to stage another referendum, particularly an unsuccessful one that could threaten his chosen successor, Dominique de Villepin. Therefore, Chirac has suggested that certain aspects of the constitutional treaty be "cherry picked" and enacted separately without the need for member-state ratification. This approach appeals to EU elites who are less optimistic about the malleability of the French electorate.

However, Merkel has explicitly rejected this approach: "To put single parts of this constitution into force, and leave others aside, without knowing where you want to go, that does not work." Given that Merkel will assume the rotating presidency of the European Council in early 2007, it is likely that the EU's efforts at ratification will contain some attempt to resubmit the constitution, as written or augmented.

Meanwhile, it appears that the European Commission--a body appointed by the European heads of state and approved as a slate by the European Parliament--regards the constitution merely as a potential transmission device for greater powers that it can and will acquire through other means. As the chairman of the European Convention's Working Group on Legal Personality, Giuliano Amato, creepily put it, "My beloved daughter is dead, but some of her organs can be transplanted to make the [currently in effect] Nice Treaty more beautiful."

Indeed, EU bureaucrats are striving to appropriate some of the powers they would have gained had the draft constitution been approved, especially in pan-European energy, space and defense policy. But it is still too early to tell the degree to which the EU will be successful in establishing those new powers. Far more important than the procedural maneuvering of those EU bureaucrats, however, has been America's de facto support of one Europe.

America's European Entanglement

During Bush's visit to the European Commission, he said that he supported a strong Europe because "we need a strong partner in the hard work of advancing freedom in the world."

A few months later, the French and Dutch electorates rejected the draft EU constitution in referendums. Still, the president's sentiment seemed to have materialized when, by early 2006, Secretary Rice could say in a joint press conference with the EU high commissioner for external affairs, Javier Solana: "I won't even say how many times we've met in the last year, but it has been a lot. And it is always been [sic] an opportunity to share and to discuss the many issues that the United States and the EU face together." In critical areas of American foreign policy, American policy toward and in cooperation with the peoples of Europe is being conducted through the representatives of the European Union. The EU continues to position itself as the one organ of foreign policy for all European nations, constantly seeking status as a "party" to international conversations on a variety of topics.

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