I noticed yesterday in the comments section of Richard North's EU Referendum blog, someone from Holland talking about the 'ever closer union' phrase in the 1957 Treaty of Rome which usually sends Brexiteers into paroxysms. The commenter mentioned that it only occurs in the preamble and not in any of the actual 247 articles that follow it. I confess I have never actually read the original treaty but I found a copy on line and I see he is right.
The English text of the treaty (80 pages) is HERE.
It surprised me to see how much of the text is about the creation and setting up of the European Economic Community, establishing the common market and so on, as opposed to the actual running of it. You also get a sense of the work that went into it. And all achieved in just 80 pages. By comparison the UK Withdrawal Agreement is 585 pages!
Anyway, this is the bit of the preamble, the very first words of the treaty in fact, which have caused so much trouble over the years, uniquely all of it in the Conservative party:
DETERMINED to lay the foundations of an ever-closer union among the peoples of Europe.
It is almost as if the Eurosceptics never got beyond the first ten words of the treaty before being outraged and unable to get to the meat of the text, the actual Articles that set out all the legal obligations.
This is the wording of Article 2 setting it out in clearer and more specific terms objectives of the EEC as it then was:
"The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it".
Note there is no mention of "ever-closer union" and certainly not as some devious aim of faceless civil servants in Brussels. It talks only of an accelerated raising of the standard of living and closer relations between states - something which the EU has achieved spectacularly I think, at least compared to how it was in 1957.
The Dutchman was talking about how words in the preamble have taken on an importance that was perhaps never intended in 1957 and I think he's right.
I then began to think about what legal effect preambles have in international treaties where according to the Vienna Convention on the Law of Treaties (VCLT) they are an accepted part of the way treaties are set out. The answer is that there appears to be no commonly accepted view about the precise legal force of preambles.
I found just a couple of academic articles where this is discussed. Neither comes to a definite conclusion. It is in fact a debatable matter.
The US Constitution is a case in point and this article (HERE) from The International Journal of Constitutional Law quotes a judge from a 1905 US legal case which established the definitive and accepted American position on the preamble to the US Constitution:
"Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution, and as such as may be implied from those so granted"
In another academic treatise, a whole book chapter, dealing with the interpretation of preambles in treaties (HERE) the writer comes to this conclusion:
"The preamble occupies an uncertain position in treaty practice, pulled in multiple directions by the forces of doctrine and practice. On one hand, the preamble is unquestionably a part of the treaty it introduces, being both subject to and the product of negotiations between state parties and existing within the four corners of the treaty text. As a matter of logic, it seems inherently important as the statement that sets the stage for all that follows.
"On the other hand, evidence suggests a not-uncommon perception of preambles as standing apart, subjugated to the treaty’s later provisions whether because of its historical origins, its often ceremonial structure and language, or the influence of domestic approaches to the preamble that serve to check its legal power in other contexts. In practice, this perception may influence the approaches not only of parties tasked with interpreting treaties, but also of those who negotiate them and draft them. But the preamble’s association with object and purpose swings the pendulum the other way, with longstanding practice making the preamble the de facto and go-to source for these statements sought by interpreters and often used to decisive effect.
"The primary argument of this Comment is that the VCLT has placed no limits on preambles’ legal power. In crafting their treaties, nations may have their reasons for not entrusting the preamble with substantive provisions—tradition, notions of propriety, and uncertainty foremost among them—but there exists no firm rule to prevent them from doing so. Rather, the VCLT provides the preamble with two routes in which to exert its influence: first, as an integral part of the holistic textual analysis of the treaty, and second, as the standard repository for statements of object and purpose".
So, it appears the arguments about "ever-closer union" may be due to a misunderstanding on the part of eurosceptics as to its legal standing.
The notion of ever-closer union has never bothered me in the least and the more I travelled in Europe, the more I realised how similar we are in outlook. In fact it seems to me the ones out of step are the Brexiteers who seem to have a congenital objection to working in harmony with anyone - even themselves.