What can we ask of a treaty?
The New York Times has recently taken to reporting on the failures of the Lisbon Treaty, manifested by the visible growing pains in the new leadership structures of the European Union (here). To be sure, The Times is hardly alone in noting what seems to be a problem in the implementation of the New Europe. Earlier criticism focusing on the profiles and personalities of Council President Herman van Rompuy and High Representative Lady Ashton have mutated into disparagement over the Lisbon Treaty itself.
The Treaty is vague, frowns the New York Times; the new positions it creates leave a vacuum of power; the new power configuration is already overrun by diplomatic events (Haiti, Greece, Obama’s priorities, etc.); or that the power struggle with Barroso is insurmountable.
What is so dysfunctional about Lisbon? What is a good treaty and what is a bad one? What does it mean to say that a treaty is working? What can we ask of a treaty?
Like the rest of the swarm of politicized, polemicized concepts of modern statehood, the treaty is taken for granted. A treaty is a treaty is a treaty, right? Like the earth under our feet or the heavens above, a treaty has been a stable point of reference in the international relations. Of course not. Something like the contrary is more likely the case.
A scan of the United Nations Treaty Collection is bewildering, not only because of the sheer volume of treaties deposited since 1948, but because of the heterogeneity. Apart from a gaping broad definition of an agreement between states, no two treaties are identical. Indeed, the international longing for consensus on what a treaty is led in 1969 to the world’s first treaty on treaties, the Vienna Convention on the Law of Treaties, 1969.
The notion of treaty was born within a kind of primeval realism when only real coherent backdrop for was the international anarchy postulated by classical realism. Treaties are made and hold only if all other parties are disregarded, only when all other issues are bracketed. International treaties only work in a vacuum.
The other side of this coin is that treaties have the extraordinary capacity of creating and enacting their own legitimacy. A treaty only holds up if it is based on, well, nothing. It only has legitimacy that is self-generated and self-replicating. It judges are executors are the parties involved and no one else. It cannot be based on any authority, legitimacy or sovereignty that is not already implicated in its own meaning. Treaties are self-authorizing. International law of the kind instigated by the United Nations in 1948 has not changed this structural reality.
What about the various Treaties of the European Union and in particular the Treaty of Lisbon? If we take seriously the fundamental (and fruitful) groundlessness of all treaties, their self-creation and self-creativity, doesn’t this mean that the most complex and modern of all treaties, the Treaty of Lisbon, has the chance, should we choose to let it, to be the self-creation of Europe? Not (only) a new set of laws and regulations, constraints and guidelines, but also an uncommon, or even unheard of, mechanism of self-authorization, self-legitimation and self-governance?
What can we ask of the Treaty of LIsbon? We can ask it to provide a stable and continuous basis for questioning and re-positing the meaning of Europe, the identity of Europe, the values of Europe and (finally) the finality of Europe. In other words, the Treaty of Lisbon is only the most recent chapter in the story of Europe setting itself apart. Apart from others, yes, but apart from itself as well. The most important thing about Lisbon is that it has opened a box of questions that shows no sign of being closed in the near future.
We see this already in the frenetic quest by Lady Ashton for the meaning of a European diplomatic corps, the experimentation, the risk, the political danger. The value of the treaty cannot be the specification of the structure and content of the EU diplomatic corps. Its genius lies in the potential it creates for creating and sustaining this debate.
