July 4, 2008
The CEPS paper seems rather to be full of surprises than helpful:
It is surprising to hear that it would make a difference to the current deadlock if the 26 non-Irish member states ratified the consolidated version of the Treaties as published on 9 May this year.
This is not the case since the neuralgic spot in this ratification saga is (and remains) Art. 48 of the EU Treaty: ANY amendment to the current Treaties has to be ratified by ALL the member states. Whether such an amendment comprises ratifying a treaty listing only the various amendments to the current Treaties (the method applied for Maastricht, Amsterdam, Nice and Lisbon) or ratifying a treaty which offers a full text integrating the amendments into a new treaty corpus (the method applied in the proposed EU constitution) makes NO LEGAL DIFFERENCE. Article 48 applies in both cases!
It is also surprising to hear that the ratification risk could be minimised by an additional article saying that the new Treaty will enter into force once it has been ratified by a super-qualified majority of member states. Such a clause could only be introduced for FUTURE amendments to the AMENDED Treaty but not for the amendment of the CURRENT Treaty (otherwise Article 48 would be useless). Whoever argues in another direction is actually not talking about constitutional reform but constitutional revolution.
Daniel Gros and Sebastian Kurpas seem to (understandingly) look for ways to get rid of the legal obligations the 26 member states have vis-à-vis Ireland on the basis of the current EU and EC Treaties. In fact, the only way to arrive at that point is mentioned in the CEPS paper: the withdrawal from the current Union of 26 Member States.
Despite the fact that the current Treaties have been concluded for an unlimited period, such a step is feasible under international law. It might though be less so under supranational law, since any suspension of membership rights has to “take into account the possible consequences on the rights and obligations of natural and legal persons” (cfr. Art. 7 EU Treaty). Even if a collective withdrawal should take into account the rights of (also Irish) citizens, the question remains whether such a scenario is plausible or – this time politically speaking – a surprising idea.
The CEPS proposals purport to “satisfy legal concerns”. But rather they run against basic principles of international law. Law is not an indulgent tool box for politics. Law puts Politics into a calculable framework.
Gabriel N. Toggenburg
EURAC (Institute for Applied Research and Further Education)Author : Letters to the EurActiv editor