Monday, 30 May 2005

EU Constitution: the fallacy that the ratification process must continue despite a french or dutch no vote


SERIOUS MISREPRESENTATION OF THE LEGAL FACTS IN TODAY’S “IRISH TIMES”

Under the heading “No vote will not kill constitution”(P.11) the Irish Times’s EU Correspondent, Denis Staunton, makes a seriously inaccurate statement which could well mislead the Irish public regarding what could or should be done following a posssible French or Dutch No vote in their referendums.

Staunton writes: “According to the constitution, if at least four- fifths of the member states ratify it by November next year and the others are unable to do so, ‘the matter will be referred to the European Council’ of EU leaders.”

Contrary to what Denis Staunton states, this is NOT “according to the constitution”. The EU Constitution contains no such provision, and even if it did, how could States be bound by the provisions of a document that is not yet ratified?

What Mr Staunton misleadingly refers to as “part of the constitution” is a political Declaration, No.30, which is attached to the Constitution but is not legally part of it, and which was adopted by the Intergovernmental Conference that drafted the final Treaty-cum-Constitution. This Declaration reads as follows: “The Conference notes that if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council.”

Note that the Declaration states that “IfÅ four fifths of the Member States have ratified.” This is not the same as an obligation on them to proceed with ratification if one Member State has said No and the others decide to respect that No. States are free to abandon the ratification process if they choose. The terms of this Declaration, which is not itself a Treaty or legally binding, make quite clear that the decision by other EU States to ignore a possible No vote in France or the Netherlands and to proceed with their ratifications as if a French or Dutch No could be reversed or over-ruled, is a purely political matter, but has no legal imperative behind it. It would be merely an attempt by EU politicians, bureaucrats and propagandists to bully the people of the country concerned.

This is to contemplate the kind of outrageously undemocratic behaviour that Ireland’s political elite engaged in when Irish voters rejected the Nice Treaty in June 2001. When that happened Taoiseach Bertie Ahern could have told his EU partners that he wished the ratification process to stop to take acount of the Irish people’s vote. Instead he went to the EU summit in Gothenburg the weekend afterwards to apologise to his EU colleagues in effect for the way the Irish had voted, told them to ignore that vote and to go ahead with ratifying the Nice Treaty. He promised that he would re-run the referendum and get a different result by changing the referendum rules and securing their help in due course to threaten, bully and cajole the Irish electorate a second time around.

French Prime Minister Raffarin has stated that there will be no second vote in France – thereby showing more respect for his people than Taoiseach Ahern did for his – and showing also that, unlike Mr Staunton, he is aware of the legal/political significance attaching to a Treaty Declaration. The only reason for Taoiseach Ashern proposing to hold a referendum in Ireland in the event of a French or Dutch No vote would be that he contemplates us joining in a general EU exercise of bullying or trickery vis-a-vis French or Dutch voters, just as their politicians helped Bertie Ahern to bully and cajole us in our Nice Two referendum.

Denis Staunton dredges up some Professor of Politics in Edinburgh – presumably the holder of some Jean Monnet ideological chair – to state, quite falsely, that there is an obligation under international law for the EU Member States to continue trying to ratify this Treaty when one State has rejected it.

There is no such “obligation”. Where could such an obligation come from? The Declaration referred to is not an international treaty and imposes no legal obligation whatever. It is a statement of intention in hypothetical circumstances: namely, that the 25 Governments would discuss the matter if four-fifths of EU States did not ratifiy the Treaty. But that does not amount to a requirement that they should go ahead with their own ratifications while ignoring No votes in some countries, contrary to what Mr Staunton and his Edinburgh Politics Professor imply. That would be a political decision, a decision by politicians to ignore a people’s vote. It would be quite typical of the arrogant EU-elite, but let us not pretend that it would have some mandatory legal force behind it.

It is surprising that such an experienced correspondent as the Irish Times’s Denis Staunton does not seem to know the difference between a Declaration attached to a Treaty, which is a political statement but not legally binding, and a Treaty’s substantive Articles and Protocols, which are. If Mr Staunton had enquired a little harder he might have found someone properly qualified in international law who would have been be able to tell him what was in the EU Constitution and what was not, and who could explain the legal/political weight that attaches to political Delarations annexed to treaties.

One suspects that Mr Staunton is merely echoing and seeking to drum up support for the policy line now being pushed by the eurocrats of the EU Commission and by the many eurofanatics and eurobullies across the EU who want to ignore a possible No vote by the people of either France or Holland in their referendums, so as to keep their precious EU Constitution project on the road, from which they stand to gain much personally themselves.

This is playing politics and making EU propaganda, not good journalism. It us unfortunate that so many European correspondents who “go native” in Brussels seem unable to tell the difference.

By Anthony Coughlan

THE NATIONAL PLATFORM EU RESEARCH AND INFORMATION CENTRE
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