APPENDIX 13
Memorandum from by Professor Trevor C
Hartley, Professor of Law Emeritus, London School of Economics
WHAT THE
CONSEQUENCES WOULD
BE IF
THE TREATY
IS NOT
RATIFIED
The question addressed here is what would happen
if the Treaty Establishing a Constitution for Europe—the
treaty containing the draft Constitution—were not ratified
by one or more Member States.
The first point to make is that the draft Constitution,
like the earlier Community treaties, is a treaty under international
law. Its legal validity depends on a treaty; and the legal validity
of that treaty depends on international law. The legal validity
of the draft Constitution (and of the treaty establishing it)
in the legal system of the Member States depends on the law—the
constitutional law—of the State in question. There is no
other source from which it can obtain legal validity. In the case
of the existing (and earlier) Community treaties, this has been
acknowledged by the courts of a number of Member States, including
the United Kingdom. [20]There
can be no doubt that the same is true with regard to the draft
Constitution. [21]The
fact that it is called a "Constitution" does not change
things. In international law, the term "constitution"
is often used for a treaty establishing an international organisation.
[22]We
must, therefore, consider the matter, first and foremost, in terms
of international law, specifically the international law relating
to treaties.
In determining the consequences of non-ratification,
two treaty provisions are relevant. The first is the provision
at present in force on amendments to the Community treaties. This
is relevant because the draft Constitution would clearly amend
the present treaties—in fact, it would repeal two of them,
the Treaty on European Union and the Treaty Establishing the European
Community. [23]The
relevant provision is Article 48 of the Treaty on European Union.
This provides that amendments to it must be ratified by all the
Member States in accordance with their respective constitutional
requirements. [24]The
second relevant provision is Article IV-447 of the Treaty Establishing
a Constitution for Europe. It provides, in similar terms, that
it must be ratified by the High Contracting Parties in accordance
with their respective constitutional requirements. It goes on
to say that it will enter into force on 1 November 2006, "provided
that all the instruments of ratification have been deposited".[25]
If this does not happen, it would go into force after the last
signatory did so. These provisions make absolutely clear that
the draft Constitution can enter into force only if all the present
Member States agree. Consequently, it follows that if one Member
State fails to ratify the treaty, the draft Constitution will
not go into force. In this event, the existing treaties would
continue to apply, since their repeal depends on provisions of
the draft Constitution. This is the legal position.
Some Member States would not like this. What
could they do? First of all, they could exert political pressure
on the recalcitrant Member State to make it change its mind. In
the case of Britain, at least, this could be withstood if there
was the political will. If the other Member States felt strongly
enough, they could, in theory, take a very drastic step: they
could all withdraw from the Community and Union. The United Kingdom
would then be the only one left. So the present Community and
Union would cease to exist. The remaining 24 Member States could
then establish a new Community based on the draft Constitution.
The United Kingdom would then be faced with the option of joining
on their terms or remaining outside.
This, however, is mere fantasy. It would work
only if the other 24 Member States were united, which they would
not be. One could hardly believe that many, let alone all, would
want, in effect, to expel Britain. We are a major importer of
agricultural products, almost certainly the biggest in the EU.
Where would the Common Agricultural Policy be if we were to leave
and buy our food on the world market? Where would the embryonic
European defence policy be without the United Kingdom? What would
happen to economic growth in the Community if the Member State
with the most dynamic major economy were to leave? The draft Constitution
is not so important to any of the other Member States for them
to want to expel us. There is nothing in it that touches their
vital interests.
What in fact would happen if the United Kingdom
were not to ratify is that the others might ask us to negotiate
with them on a mutually acceptable solution. They might ask us
to accept certain elements in the draft Constitution in exchange
for opt-outs from others. We could even demand opt-outs from parts
of the existing treaties. Everything would be open to negotiation.
The outcome would depend on the bargaining positions of the participants
and on how determined they were.
This is what the consequences would be if the
treaty was not ratified.
6 December 2004
20 For the United Kingdom, see Thoburn v Sunderland
City Council ("Metric Martyrs" case) [2002] 3 WLR
247; [2002] 1 CMLR 50; [2002] EWHC 195 ADMIN. (Div. Ct); for Germany,
see Brunner v European Union Treaty (German Maastricht
case) 89 BVerfGE 155; 20 EuGRZ 429; [1993] NJW 3047; English translations
in: [1994] 1 CMLR 57; (1994) 33 ILM 388; Andrew Oppenheimer, The
Relationship between European Community Law and National Law-The
Cases (Cambridge University Press, Cambridge, 1994), p 526
(German Federal Constitutional Court (Bundesverfassungsgericht));
for Denmark, see Carlsen v Rasmussen (Danish Maastricht
case), Judgment of 6 April 1998, [1999] 3 CMLR 854 (English translation)
(Supreme Court of Denmark (H'jesteret)); for other EU States,
see the decisions of the French Conseil Constitutionnel in
Maastricht I, Decision 92-308 DC, 9 April 1992, Recueil,
p 55; [1993] 3 CMLR 345 (English translation) and Amsterdam,
Decision 97-394 DC, 31 December 1997, JORF No 2 of 3 January 1998;
the decisions of the Italian Constitutional Court (Corte Costituzionale)
in Frontini, Decision No 183 of 27 December 1973, [1974]
RDI 154; [1974] 2 CMLR 372 (English translation) and Fragd,
Corte Costituzionale, Decision No 168 of 21 April 1989, [1990]
I Foro Italiano 1855 (English translation in Andrew Oppenheimer,
above, p 653); and the decisions of the Greek Council of State
in Vagias v DI KATSA, Decision No 2808/1997 of 8 July 1997,
discussed in Maganaris, "The Principle of Supremacy of Community
Law-The Greek Challenge" (1998) 23 ELRev. 179 and "The
Principle of Supremacy of Community Law in Greece -From Direct
Challenge to Non-Application" (1999) 24 ELRev. 426. Back
21
For a recent decision of the French Conseil Constitutionnel
on this very point, see Decision No 2004-505 DC of 19 November
2004 on the Treaty Establishing a Constitution for Europe, paragraph
9 (available on http://www.conseil-constitutionnel.fr/). Back
22
For example, in one of the best known definitions, that originally
proposed by Sir Gerald Fitzmaurice in his report on the Law of
Treaties presented to the International Law Commission in March
1956, an international organisation is defined as "a collectivity
of States established by treaty, with a constitution and
common organs, having a personality distinct from that of its
member-States, and being a subject of international law with treaty-making
capacity" (italics added): see [1956] II Yearbook of the
International Law Commission 104 at p.108. Another example is
the official title of the treaty establishing the International
Labour Organisation, which is the "Constitution of the International
Labour Organisation". This was adopted in April 1919 by the
Paris/Versailles Peace Conference convened after the First World
War. The same usage applies in French: the French text of the
definition quoted above of an international organisation uses
the word "constitution" (Annuaire de la Commission
du droit international (1956-II) at p 106) and the official
French name for the treaty establishing the ILO is "Constitution
de l'Organisation Internationale du Travail". Back
23
See Art IV-437(1) of the Treaty Establishing a Constitution for
Europe (Article numbering in this memorandum is always according
to CIG 87/1/04 Rev. 1). Back
24
Italics added. Back
25
Italics added. Back
|
