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.

The United States has unwittingly been the great facilitator of the EU's most recent failures by broadening the context in which it engages the EU. Whether in trying to coordinate policy, as in joint policy toward Iran, or dealing directly with EU institutions (even those with questionable foundation under current treaties), the United States has engaged the EU as never before. In so doing, the Bush Administration seems to have fallen into an increasingly common trap set by EU boosters, who encourage confusion between the EU's clear but narrow powers to make EC law and those inchoate EU powers to make foreign policy generally--which, given their nonexistence, are as broad as the EU's imagination.

EU policy toward the Middle East in the face of the electoral victory by Hamas, which was elected to rule the Palestinian Authority in early 2006, is instructive. The EU is a member of the so-called "quartet"--along with the United States, Russia and the United Nations--attempting to mediate peace between Israel and the Palestinian Authority. Together, the nations of the EU are the largest donors to the Palestinian Authority, with aid totaling some $600 million, and several member states enjoy excellent relations with many factions of the PA. Once Hamas, which is on the EU's and America's lists of terrorist organizations, continued its refusal to renounce terrorism or affirm Israel's right to exist (contrary to the quartet's demands), the United States suspended payments to the PA informally but immediately, while the EU continued payments of over $140 million, on the stated grounds that the PA ought not to be allowed to collapse.

Several European leaders quickly expressed the need to cut off funds to Hamas if it persisted in repudiating agreements with Israel and continued to deny Israel's right to exist. But the European Council could not even agree on a statement after Hamas's victory. Eventually, the Council of Ministers, composed of all 25 member states' foreign ministers, agreed to withhold funds to Hamas until it recognized Israel's right to exist, renounced violence and accepted previous peace agreements. But then, not two weeks later, then-British Foreign Secretary Jack Straw spoke out on the issue, stating that for the UK, Hamas need not alter its charter calling for the destruction of Israel for negotiations to continue and, presumably, British money should be released as long as "the money is not used by terrorists."

Thus the U.S. policy nimbly formed after the Palestinian election has been seriously impaired in its ability to modify Hamas's behavior by making funding conditional, since the EU continued its contributions long past the time Hamas needed to secure other sources of funding from the Arab League, Iran and Saudi Arabia. But again, the EU stance is not reflective of all its member states' positions relating to the current situation. The apparent seizure of general foreign policy powers by EU elites has raised the unreasonable expectation inside and outside the EU that it can reach a policy even in the absence of unanimity. Straw's statement, contrary to EU policy but perfectly within Britain's right under the current treaties to have its own foreign policy, neatly restates the problem for dealing with the EU as a separate diplomatic actor right now.

The requirement of unanimity also leads to a serious erosion of resolve in EU diplomacy toward third parties. The EU negotiates as much with itself to form policy as it does with others. The efforts of the EU-3--Great Britain, France and Germany--to counter presumed Iranian nuclear proliferation is particularly illustrative. The three operated as a subcommittee for both EU member states and Solana. The EU-3 mediated disagreements among themselves, which were common, in favor of the least difficult stance to sell to the rest of the members. Typically, Britain and France would be inclined to take a harder line than Germany, and the three would present a proposed stance to Solana. Solana would then either consult the heads of state or estimate their wishes himself, an exercise which invariably softened the proposed stance further.

The results were disastrous. The only progress their efforts produced was the advancement of the Iranian nuclear program. One still cannot say that the EU itself has any policy toward Iranian proliferation, other than general pronouncements of its undesirability. The State Department, aware of and greatly aggrieved by the stilted, hollow negotiation process, nevertheless had little choice but to acquiesce to the EU's pleas for more time before taking action in the UN Security Council or other diplomatic measures.

Also, as shown with Iran, the drive for political union colors the EU's own calculations of the prospects for success. Chancellor Merkel, greeting the results of the EU, effused, "It was what made this EU-3 approach so successful. They [Britain, France and Germany] stood together and they had one uniform position." Charles Krauthammer grimly noted that this interpretation of events "makes you want to weep." EU elites covet the clear diplomatic role for the EU that the constitution alone would have provided for the future, but their attempts to will such a role into existence portend calamity for those that seek to deal with the EU today.

Granted, EU policy inertia can occasionally redound to the benefit of Western security interests, such as the inability of the EU to come to an agreement to lift its existing weapons embargo against China. But such benefits only accrue by chance. And hoping for good luck is no basis for a foreign policy.

Towards a Stronger Europe

EU elites' desperation for a diplomatic identity and capability is extremely unlikely to yield a "strong Europe" and has serious implications for the United States. Foremost, the lack of clarity, legitimacy and decisiveness of today's EU undermines Europe's critical joint initiatives with the United States. Also, EU actions naturally come at the expense of alternative member-state action, either ad hoc or through existing international organizations, such as NATO or the UN. Together, these factors threaten to keep the EU's leverage abroad far below what its size and status should warrant. If the EU continues to assert powers that it has not yet legitimately acquired, and fails even then to use them effectively, a true EU foreign policy may be dead before it is legally allowed to begin.

Within Europe itself there is wide concern about a general EU arrogation of powers, reflected in part by the French "non" and the Dutch "nee" to the constitution. This is even more fully seen in national legislatures' revolt against further EU aggrandizement, as evidenced by a joint call of all the legislatures (except Italy's) in the fall of 2005 for greater oversight of the EU, and the refusal of three national legislatures (Austria's, Finland's and Germany's) to sign on to the European Parliament's efforts to deal in unison with the aftermath of the Dutch and French votes, lest they "be seen just as an appendix to the European Parliament." Noting this, and until EU institutions are legitimated through a constitutional process or treaty, America should make a tactical retreat from joint diplomacy with the EU on pressing foreign policy matters.

In addition, the EU's basic structures lay the foundation for sluggish decision-making. The organic problem of foreign policy by diverse committee would exist even if the constitution had passed, lending itself to the lowest common denominator in policymaking--usually anodyne pronouncements, or no action at all.

There can be no question that it is in America's interest to have the strongest possible relationship with the largest number of European peoples, no matter how that relationship is organized. Also true is that a "strong Europe" at any given time is one that maximizes the aggregate influence of its nations. A great many of the most pressing foreign policy issues of the United States, including counter-terrorism, counter-proliferation and the threats to domestic liberty by Islamic fascism, can only be solved by concerted efforts of all or most of the advanced Western democracies in pursuit of shared interests. Throughout the Cold War, nations worked together through both formal and informal networks to stem threats to peace or the Western way of life. "Europe" and the United States have always been strongest on the world stage when acting in concert or, at least, not at cross-purposes.

Thus it should not be surprising that the United States, rightly thinking that good relations between the peoples of Europe and the United States are important, has been increasingly putting stock in U.S.-EU action, to the delight of EU officials but the detriment of common interests, including that of a "strong Europe." Not accounted for by such moves is the fact that a substantial number of citizens of EU member states (say, Austria or Ireland) do not want to ever be allied with the United States, and any one EU member state can veto or suspend effective policy cooperation with America. "Europe", meanwhile, would better deploy its enormous global leverage by working within existing multinational organizations (such as seeking NATO sanctions on Syria for its role in allowing the Danish embassy to be destroyed), relying on institutions that have a clear mandate (applying new EC economic sanctions against, say, Iran or Hamas), or organizing ad hoc initiatives among individual EU member states. Until the EU's powers are defined, a "strong Europe" will never mean the "European Union." Accordingly, U.S. reliance on the EU as a separate diplomatic entity for resolving critical foreign policy issues represents much more than a sort of therapy for those EU elites wounded by the defeat of the constitution. It amounts to an imaginary alliance with a new and illusory "country." America should not be drawn into a guessing game over the real powers of the European Union.

America's selective forbearance with the EU will require the utmost diplomatic skill, combining high-profile but low-cost gestures. For example, U.S. efforts to bolster the EU's profile at the UN and other international organizations by involving it as a full party demonstrates U.S. support for the prestige of the EU, with few foreseeable negative repercussions. In addition, cooperating with the EU on defense procurement or planning would not create unreasonable or immediate risks to American policy. Also, allowing NATO assets to facilitate EU-designed military maneuvers or interventions may imply greater redundancy and higher costs than a NATO-flagged mission, but such cooperation would not appear to endanger the success of any conceivable operation in the near term and could help future military planning and operations over the long term--given the possibility that the EU may one day agree on a "common defense", a common national security strategy and a common foreign policy.

Those overtures must be balanced with America's immediate scaling-back of its joint diplomacy with the EU in key areas involving third parties. The United States should conduct its most sensitive diplomacy in concert with more established and legitimate multinational institutions and single member states or groups of member states.

The sole area of EU policy that has been validated by treaty and established as to its foreign policy powers, however limited, is that regarding the European Community. The use of EC policy as a tool of joint U.S.-EU diplomacy should therefore be re-emphasized. In addition, the United States should encourage small groups of interested parties to form around certain issues, but, unlike the EU-3, these should not be constrained by the real or imaginary collective will of EU elites.

The United States must be wary of ascribing powers to the EU that its member states have not consented to. Until the current constitutional crisis passes and the EU's powers over foreign policy become more clearly enunciated, the United States should limit itself to working with the strongest and most legitimate institutions the nations of Europe can offer. A balanced approach towards diplomacy with the EU will facilitate future cooperation, no matter how "Europe's" political union is ultimately determined.

Jeffrey L. Cimbalo is a lawyer in Virginia.

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