Lots of people have lots of problems with the Maastricht Treaty, and I’m not one to change that. Instead I’ll throw another issue onto the pile: its lopsidedness.
If you’ve read the text – and really, you should have – you’ll notice that there’s a huge difference between the sections relating to the first pillar (the European Community) and those for the second and third pillars (Common Foreign & Security Policy and Justice & Home Affairs respectively).
The former is full of rich detail, setting out in elaborate detail how things should work. The latter is very brief, with sketchy outlines of what might come. Indeed, it was so brief that there was a commitment to review all of that five years after signature (which became the Treaty of Amsterdam).
Well, Maastricht came out of a process that starting in the wake of the Single European Act, with the 1988 Delors Committee on Economic & Monetary Union producing recommendations on a single currency and its management. That resulted in a decision to hold a round of treaty revision.
Soon after, we had the collapse of communist regimes in Central and Europe Europe, and there was a hurried bolting on of further treaty revisions to consider political integration.
By the time of the end-game at Maastricht in December 1991, EMU had been through a long iterative process of refinement and filling-out to produce that first pillar text, while the political side had ‘only’ had about eighteen months to get to the self-confessed vagaries of CSFP and JHA.
You’ll see where I’ve gone with this.
The breaking ‘news’ (and I use the word advisedly, given how everyone seems very much less than shocked about it) that Future Relationship talks are resuming from today is connected to this history lesson because we’re currently short on words.
Or, rather, we’re short on shared words.
We know that until now there has been no joint text in the talks, only separate ones held by each party. And even the announcement yesterday of rolling talks does not fully bridge the gap, as Anton Spisak notes:
Words matter a lot here because they have legal force. And the more words you have, the more chance there is of some unintended error creeping in.
Consider the Withdrawal Agreement, which you’d think had been pretty well pored over by all involved through 2018-20. That had to be revised this year to resolve some infelicities.
The Future Relationship treaty – if we get to it – is going to be a very much more difficult proposition. Partly that’s because of time, which is achingly brief, but also because its scope is going to be that much wider than the WA: several hundred articles are likely, plus a long list of annexes that someone (probably the EU) will need to throw in too.
Of course, if the aim of the exercise is to get to an in-force treaty by 1 January then legal drafters will have to work to that. But one likely consequence is going to be a pushing of much detail into subsequent rounds of negotiations within a framework established now.
In that sense, we’ll be on the pillar 2/3 track: ideas more than actions, coupled to a standing need to negotiate with each other on the numerous loose ends.
As Sydney Nash notes, we’ve got a whole lot more banging on about Europe, however this turns out: