Friday, May 06, 2005

EU Constitution against « La République, une et indivisible » and laïcité

Some people in France are concerned that the Treaty Establishing a Constitution for Europe (TECE), especially its Part II (Charter of Fundamental Rights of the Union), might actually lead towards the abolishment of the principle so dear to the French constitutional tradition, the principle that presents a constitutional denial of ethnic, national minorities in France. The French legal system does not offer a legal recognition to such minorities. The fact that an individual citizen might be German, Corsican, Arabic, Spanish, etc., matters as much as someone’s religious affiliation. In the public sphere everyone is French while in the private sphere they can be whatever they want, Micky Mousians, Corsicans…same difference. This is the essence of the principles of laïcité and « La République, une et indivisible ».

At the time of the French Revolution, when this principle was introduced it was considered as presenting a break with traditional society of the ancien regime, a system that knew of legally recognized and nourished differences in social status, religious affiliation, nationality…The aforementioned Jacobin principle presented a break with conservative legal system and an innovation of modernity. Today, the situation is different. Most liberal-democracies, in one way or another, espouse basic tenants of multiculturalism, while France (and a couple of other states) still stubbornly resists. The situation today, seems exactly the opposite to that of the French Revolution, it is the principles of « La République, une et indivisible » and laïcité, that is considered retrograde, while multiculturalism (i.e. legal recognition of national minorities and their rights) seems to belong to the progressive current of contemporary political philosophy. This blog-entry will not try to resolve this normative dilemma for it believes that every country has a right to stick to its constitutional tradition to a certain extent (especially when such provisions do not seem bluntly contrary to the trends of modern liberalism-and the French system is not). The intention of this blog-entry, is rather to briefly examine the relationship between the aforementioned French Jacobin tradition and the TECE.

Is the TECE, if it comes into force, going to destroy the principle of « La République, une et indivisible » and make of France, a multicultural state like America, or even a “multinational federation” like Canada or Belgium?

According to some commentaries, the article II-70 of TECE, establishing Freedom of Thought, Conscience and Religion, goes in the direction of multiculutralism (For an interesting debate on these issues see).

According to some interpretation of II-70, arguing that,
“Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance”
the French law on head-scarves, for example, could possibly be abolished for it is not in concordance with the EU Constitution.

Another, ‘suspiciously’ multiculturalist provision, is the following one,
“The Union shall respect cultural, religious and linguistic diversity.” (Article II-82)
Although ambiguous, this article could possibly be interpreted as to give it a multiculutralist meaning.

Could respecting religious diversity include promoting Corsican independence or autonomy? Probably not, main partisans of the national minority rights, secessionist claims, in the EU political arena, criticized the Constitution exactly for the opposite. These, so-called partisans of internal enlargement, as it was already argued in this blog, criticized the TECE for preventing the possibility of internal enlargement through several provisions. Most illustrative provision preventing any thought of territorial dismemberment of the EU Member States is the following,
“[t]he Union shall respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security.” (Article I-5)

Finally, it seems that the TECE does not present a real threat to the French system. It is, however, certain that the Title II might be possibly regarded disgusting by a consistent Jacobin. Nevertheless, it would be exaggerated to claim that for this reason, Valérie Giscard d'Estaing, the chief of the founding fathers of TECE, deserves a guillotine and that France is bound to be forced to become a multicultural state.


nanne said...

Srdjan, interesting post.

I think you don't even have to look at Article I-5, though, the argument that the Charter could somehow impinge upon the French constitutional model falls flat because this is not possible given its scope.

(This derives from an argument I posted on my blog)

The articles in the Charter of Fundamental Rights cannot force a Member State to recognise minorities (or to phrase it differently: confer a special status upon them) because the articles do not address individual Member States.

They create rights in relation to the Union, not new rights in relation to the State. With the exception of when the State is implementing European law, which I expect to be interpreted narrowly.

The Charter also does not create competences for the Union to draft legislation. See Article II-111.

A French Jacobin might still be disgusted that the EU is not being modelled on the French state, but should not fear that the model will have to be changed in France.

Raphaël Paour said...

Good answer. However you say:

"The articles in the Charter of Fundamental Rights (...) do not address individual Member States.

They create rights in relation to the Union, not new rights in relation to the State. With the exception of when the State is implementing European law, which I expect to be interpreted narrowly."

The exception you refer to could also be called a"the rule" as the member States implement European law more than they create strictly national law. As for the narrow interpretation, the case law of the ECJ suggests the contrary. In the future I don't see why it would exercice any kind of self-restraint to preserve the member States. Furthermore, the history of constitutional justice warns us against the tendency of courts to extend their competences in the name of fundamental rights. If I was to make a prediction I would say that the ECJ will more likely try to become a supreme constitutional court.

Geoffrey said...

The EU sucks, it wants to destroy our democracy and but it will never destroy LA REPUBLIQUE, UNE ET INDIVISIBLE.


Geoffrey said...
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