Ratifying the dead treaty: flogging a dead donkey?

France and the Netherlands have voted no in their referendums on the proposed EU constitution, and since the constitution can come into effect only if all 25 member states have ratified it, the constitution is obviously now dead (or, as the radio and television commentators relentlessly say, ‘dead in the water’, like some giant diseased hippopotamus – not a bad metaphor, perhaps, after all). Yet authoritative and other EU voices are arguing that the process of ratification by those 13 EU countries that have not yet made their decisions on ratification, including Britain, should continue. A strongly Europhile, somewhat Anglophobic friend, expatriate Brit living in another EU country (no prizes for guessing who) has written in a message to me:

“However sensible it may seem in Britain for Blair to wriggle out of his commitment, the way that it looks here is that the ten countries that have ratified it will be miffed if the process is stopped (Spain voted in favour by 74% in a referendum), and the others that have still to have their say will be miffed if they are not allowed to do so. No-one seriously thinks that the Constitution can be adopted in its present form, or that it can be renegotiated, but there are plenty of people who would like to play the process out to the end to see what happens. Anyway, if six countries reject it, which now seems possible, it will fall automatically in its own terms.”

The same friend had earlier helpfully quoted Declaration 30 of the Final Act of the Constitution Treaty which states:

‘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.’

This is a ‘declaration’ without legally binding force, but anyway the first thing to note about it is surely that the present situation doesn’t much resemble the one it envisages, since two years have not elapsed, only a half of four-fifths of the member states (10 out of 20, if my arithmetic doesn’t deceive me) have ratified (nor will another ten be likely to do so now), and none at all is having difficulties over ratification (two have decided against, which may cause difficulties for others, but which hardly amounts to a difficulty over ratification).

The intellectual contortions required to justify a decision that the rest of the EU should go ahead with the process of ratifying a treaty which manifestly can’t ever come into force are simply causing derision here, except among the Europhobes in the Tory Party and others on the far right who are keen to have a chance to campaign against the EU generally and who would love to see the huge No! majority that would almost certainly happen here, and probably in other countries too, now that the whole exercise would rightly be seen as farcical. If by any ludicrous mischance we were to be lumbered with a referendum in the UK on the current deceased treaty, I would be surprised if the turnout would reach 10 per cent. The EU’s current credibility problem would be magnified a hundredfold. I recommend the FT editorial of 3 June 2005 at http://tinyurl.com/aw662, a sober and balanced account of the pros and (especially) cons of carrying on as if nothing had happened. (There is also a very funny comment on the same day by FT diarist Robert Shrimsley at http://tinyurl.com/dcca9.)

I doubt whether Mr Blair will do anything so rash as to cancel the UK referendum, anyway in the next few weeks: apart from the divisive effect this would have within the EU, Blair will be very conscious of the need not to aggravate the problems he’s going to be grappling with when the UK (not Blair himself, as many in the UK media seem to think) assumes the Presidency from next month. I imagine that there’ll eventually be a broad consensus (Germany and France, and perhaps Spain and others dissenting?) that the process should be ‘suspended’ indefinitely, or until some distant future date too far off to be meaningful, pending intensive debate in all EU organs and countries of what to do next, with a pretence that meanwhile the treaty remains on the table. But in such a chaotic situation, with so many conflicting demands being hawked around, it’s impossible to predict with any confidence how it will all turn out.

The issue emerging here now is whether it would be legitimate for EU governments to ‘cherry-pick’ bits out of the constitution treaty that are plainly necessary to enable the hugely expanded EU to go on functioning, and that could theoretically be brought into effect without the need to amend the existing treaties. The Tories are denouncing any such tactic as a filthy trick to deny the British people their referendum, and seeking government assurances that if there’s any question of putting a single bit of the present dead treaty into effect, there’ll be a referendum on it here first. This seems to me simply mischievous and motivated solely by Europhobia. But there’ll be real trouble ahead if there’s any attempt to carry out some of the more controversial elements of the ex-treaty, including appointing a permanent President replacing the rotating Presidencies, or turning X Solana into an EU ‘Foreign Minister’, or even giving up any significant veto powers in favour of more QMV, by administrative action and without any form of public consultation.

My expatriate friend also helpfully mentioned the list of 10 countries which have so far ratified: Latvia, Lithuania, Hungary, Slovenia, Italy, Greece, Slovakia, Spain, Austria and Germany. There are informative interactive maps at http://tinyurl.com/ab2dk and http://tinyurl.com/bt4eu.


10 Responses

  1. Anonymous says:

    Peter Harvey in Spain

    Yes it is I. Blair has suspended his referendum and, predictably, this has not gone down well. It is normally considered decent to wait for a death certificate to be issued before starting to dig the grave, and with the summit coming up next week the British announcement is precipitate. It is certainly seen that way in Portugal and Poland, which will still hold their referendums in the autumn, though the Czechs have announced that the British situation complicates things and they will not hold a referendum now. They don’t see why they should be done out of their chance to discuss and vote on a proposal for the future of Europe.
    It is natural and tempting to think that Perfidious Albion is up to its old tricks of fomenting discord on the continent. It has certainly been mentioned that the UK is always quick to follow its own interests rather than the common interest – by invading Iraq for example.
    The process is clearly in disarray, and no movement can be expected until after the French elections in 2007. At that point we will certainly have a new French President, probably Nicolas Sarkozy, and a very possibly a new German Chancellor, Angela Merkel. If Britain has Gordon Brown as a new PM by then and Italy has a new one too (though with Berlusconi as President), there will be a new line-up.
    Attempts to salvage parts of the wreckage that can be done under the existing treaties may go ahead, but this will be controversial. One thing that is desperately needed is the European Foreign Minister. The Americans now say that they approve of this, so that Condoleezza Rice will know which phone number to ring when she wants to speak to Europe – but the UK seems to be opposed, which would suggest that the Americans don’t want it really.
    The rotating Presidency too is something that can only offer comfort to Europhobes. It made sense with six members. With twelve it was awkward, with fifteen it is a strain and with twenty-five it will be a farce. Each member state will hold the Presidency every twelve-and-a-half years, and the possibility of a string of small countries in the chair hardly augurs well for good governance in the Union or a strong and coherent international presence. And that state of affairs, it seems, would suit Britain fine.
    Today’s Guardian is in ‘Crisis, what crisis?’ mode as it tells us that Britain has saved Europe once again. El País has its first three pages of foreign news under the title ‘Crisis in Europe’. La Vanguardia tells us that ‘Blair looks after number one’. The Catalan Avui today says that Britain has passed the buck for solving the European crisis back to its European partners. Le Monde says that Britain has ‘renounced’ ratification of the Constitution. The Berliner Zeitung has ‘Great Britain heads on confrontation course’ and opens its article with a specific reference to the Humphrey Appleby view of Britain and Europe. After discussing the British ‘slap in the face’ for Germany and France, it ends:
    ‘After the rejection in Holland and France the British people feel confirmed in their scepticism. Even leading pro-Europeans such as the former Europe Minister Denis MacShane und former EU Commissioner Neil Kinnock regard the Constitution as dead. At last the hope can be raised of reforming Europe according to British ideas. The joy may be premature: as of 1 July the country takes over the EU Presidency – and them Blair will have to lead the European diplomatic squad to a solution. Not exactly a British speciality if you think of Sir Humphrey.’
    In Britain, however, it is not Sir Humphrey that is in people’s minds. The country could hardly miss an opportunity to play at Monty Python, with the silly Foreigners in the Michael Palin role of trying to foist an obviously dead Treaty on the true Brits, who naturally identify themselves with that icon of reason and common sense – John Cleese.

  2. Patrick says:

    Whilst acknowledging that I have come a little late to the discussion here & the august company I am in (tugged forelock), I have one or two simple-minded points to make.

    If this Treaty is now dead then why have the French President & Dutch Prime Minister called for the ratification process to continue? Is it that they do not want to be fingered for the crime of killing the treaty, believe that they can re-present the referendum at a later date to their voters or that there may be some alternative means by which the EU can achieve its objectives? In the light of Denmark & Ireland’s experiences of previous referenda a repeat referendum cannot be too absurd. It has worked in the past.

    The latest ICM poll shows that a majority of voters wish to vote in a British referendum, perhaps to perform some act of ritual execution to rival Oliver Cromwell’s. Possibly the electorate would like to have a say on Europe after all these years. Is the latter reason so dreadful?

    There is an increasing euroscepticism within the UK & it seems that even Blair does not wish to face it, especially as he has suspended the British referendum. Blair is a consumate politician & even he cannot see any political advantage in continuing.

    I would love to ‘flog the dead donkey’, by voting in a referendum I hasten to add. Maybe the politicians in Westminster might take notice? What a thought! Democracy in action.

  3. Brian says:

    Patrick wrote:
    >>If this Treaty is now dead then why have the French President & Dutch Prime Minister called for the ratification process to continue? Is it that they do not want to be fingered for the crime of killing the treaty, believe that they can re-present the referendum at a later date to their voters or that there may be some alternative means by which the EU can achieve its objectives? In the light of Denmark & Ireland’s experiences of previous referenda a repeat referendum cannot be too absurd.< < The fact that the humiliated and defeated MM. Balkenende and Chirac are pleading for others to continue their ratification processes as if the results in their respective referendums hadn’t killed the constitution treaty dead as a former parrot doesn’t mean that the treaty is still breathing. They would naturally like to dilute their humiliation by sharing it with other countries also voting No, rather than endure forever their embarrassing status as the only EU countries whose leaders called for a Yes and whose electorates responded with a No. And, as you suggest, they don’t want to be forever tagged as the leaders whose failure assassinated the constitution. They don’t want to be alone in the pillory labelled ‘Leaders Rejected by their People’. They know that the other countries committed to holding referendums, including Britain, would infallibly vote No by an even bigger margin, not only because of hostility to the document and to the EU generally and to their present governments, but also and especially as a protest against the ridiculous demand that they vote for or against the ratification of a non-existent treaty. There’s absolutely no question of two founder-members of the European project, including one of the two major founders, being asked to vote again to ratify the same document that their people have so decisively rejected: no amount of bullying or cajoling could conceivably cause a change of heart by such a large proportion of the two electorates, in the way that bullying and cajoling did the trick on a quite different proposition in the cases of Denmark and Ireland, a pair of lovable midgets compared with France (and even the Netherlands). For their governments to demand of their electorates that they vote again on the same treaty would be seen as so arrogant, so contemptuous of the democratic process, that the result would almost certainly deliver an even bigger slap in the face than it did the first time round. The constitution can’t come into force unless all 25 member states have ratified it; two of the 25 can’t ratify it because of their referendum results; end of story. And: >>The latest ICM poll shows that a majority of voters wish to vote in a British referendum, perhaps to perform some act of ritual execution to rival Oliver Cromwell’s. Possibly the electorate would like to have a say on Europe after all these years. Is the latter reason so dreadful?< < This is a quite separate question. It’s certainly the case that a very large number of Europhobes in Britain and elsewhere in the EU would have loved to have the chance to demonstrate their antipathy to the Union (unfortunate title) by voting no in a referendum on the constitution treaty, and are now frustrated and angry at that opportunity being, almost certainly, snatched away because the French and the Dutch got in first. It’s self-evident that it would be crazy to go ahead with referendums on a treaty that can’t now come into force whatever their results; so the question is really whether any purpose would be served by holding referendums, not on the dead treaty, but on some other aspect of the EU, such as whether the country concerned should withdraw from it (no other question springs to mind that would be so important as to warrant being put to the vote in a referendum). The effect of holding such referendums would almost certainly be the collapse and disintegration of the EU. Indeed, that might well be the consequence of holding a series of further referendums now on the dead constitution treaty, which would reinforce the widespread impression all over Europe that the governing élites of the Union have lost their grip on reality and are hopelessly out of touch with their own grass-roots compatriots. Those of us who believe that the EU is worth preserving and reforming and that on balance, for all its follies and pretensions, it’s a force for good in the world and for each of our countries, would deplore a procedure which would probably spell its irretrievable demise. Even M. Chirac and Mr Balkenende (not to mention Messrs Blair and Brown and their other opposite numbers) must have got the message by now, surely, that there’s intense and widespread disillusionment and even anger in many, probably most, member states at the way the EU has been functioning recently: some of it justified, some not. The EU leaders don’t need another succession of humiliating rejections in popular votes to rub that message in even more brutally. The need now is for a thorough-going review of where the EU is at and where it’s going, and above all what reforms are needed to demonstrate that it can once again be an engine of prosperity and social justice as well as a guarantee against inter-European wars, the lowest of the aspirations that we ought to embrace for it. Those who demand more referendums now, whether on the non-question of ratification of a rejected treaty or on some meaningful question affecting EU membership, are really demanding the end of the EU. That’s certainly a legitimate — if mischievous — aim to pursue, but it ought not to be misrepresented as a demand for something to which we all have a ‘right’ under pledges given when there was still a treaty in existence up for decision on ratification. Peter wrote:
    >>Blair has suspended his referendum and, predictably, this has not gone down well. It is normally considered decent to wait for a death certificate to be issued before starting to dig the grave, and with the summit coming up next week the British announcement is precipitate.< < Even on the most casual reading of the British government’s position following the French and Dutch referendums, as formally defined in Jack Straw’s statement in parliament on 6 June, it’s surely clear that the government has been careful not to issue “a death certificate” for the constitution, still less to start digging its grave; it hasn’t even “suspended [Blair’s] referendum”. The statement merely reaffirmed that the status of the treaty and the question of the action required following the French and Dutch referendums were ones that belonged to the EU as a whole, not to any one member state; that it would be wrong to pre-empt those decisions at the forthcoming EU summit by taking any action, such as going ahead with the legislation for our own referendum, which would prejudice collective decisions not yet taken. Even you, Peter, would surely be hard put to it to find the slightest fault with that.

    “The Constitutional Treaty is the property of the European Union as a whole. It is now for European leaders to reach conclusions on how to deal with the situation.” British Foreign and Commonwealth Secretary, House of Commons, 6 June 2005. The death certificate and funeral are still to come.

    Also from Peter:
    >>One thing that is desperately needed is the European Foreign Minister.< < Whether this measure can be taken without the need for a treaty amendment (or ratification of the constitution treaty, now impossible) is an open question. Whether it’s desirable is another matter. Even Peter might find it difficult to function as an EU “Foreign Minister” in the absence of an integrated foreign policy across the foreign ministries of all 25 member states, except by ad hoc agreement on specific issues in the Council of Ministers. And what the proposed EU Diplomatic Service supporting the EU Foreign Minister is supposed to do to occupy its time between 9 am and 5 pm on weekdays, I’m blessed if I know. The EU is not a nation-state: it may or may not become one some day, but it’s clearly not one at the moment, and for it to jump the gun by adopting bits and pieces of the paraphernalia of a nation-state is to cock a contemptuous snook at the people of Europe and at reality. We already have, God help us, a “Secretary-General of the Council of the EU, High Representative for the Common Foreign and Security Policy (CFSP)” responsible to the Council of Ministers and not to the Commission: to rename him “Foreign Minister” would achieve absolutely nothing except to mislead the world about his role and to reinforce the suspicions of those who fear that the EU élite is hell-bent on turning itself into a super-state, whether the peoples of the Union want it or not. That is something we really don’t need, desperately or otherwise.


  4. Frank D'Souza says:

    Hell’s Bells, Sir.

    Who can be depressed with the likes of you around?

    Not even me.


  5. Brian says:

    Thanks for that, Frank. Couldn’t wish for a nicer encouragement!


  6. Patrick says:

    Many thanks for replying to my comments.

    Firstly let me state my position, although this will come as no surprise, is that of a eurosceptic. By that I mean a person who doubts prevailing doctrines. I would not characterize myself as phobic on the European issue, especially when the definition of phobia is considered — a pathological strong fear of an event or thing — notably as phobias lead to avoidance behaviour.

    It is interesting that you ascribe the behaviour of Chirac & Balkenende to simple human emotion whilst sceptics look for ulterior motives. I, for one, had not considered that the ‘misery loves company’ explanation pertains.

    You write about contempt & arrogance for the democratic process when discussing the possibility of repeat referenda, yet the only reason you seem to make that this contempt would not be shown in the French & Dutch cases is the size of the countries involved & the fact that they are founder members. Yet doesn’t this show the contempt that Ireland & Denmark was treated with? Are such differences in diplomacy & European politics the reality?

    There is undoubted fear within the eurosceptic camp that repeat referenda were possible, certainly until Tony Blair suspended our proposed referendum. Whilst I am on the point of the British referendum, the behaviour of Tony Blair is, to say the least, opportunistic. The answer to Frank Field’s question;

    “Will the Prime Minister give an undertaking that if other countries veto the constitution before he calls a referendum, the British people will still have their say on what they think of this move?�

    was direct & clear:

    “Regardless of how other members vote, we will have a referendum on the subject.�

    but now we find that the referendum is ‘suspended’ pending consultation with our European partners. I presume that Blair thought that the referendum was winnable at the time he made that reply in the House of Commons. I suspect his reasoning on the timing of the proposed British referendum was similar to Sir Stephen Wall’s who commented on Newsnight on 2nd June:

    “I think there is no hope now. It was only winnable if we left our referendum until others had all voted Yes, and argued we had to do the same to avoid isolation. We cannot do that now.�

    Thus one ‘suspended’ referendum.

    Whilst not getting into matters of avian taxidermy I cannot resist commenting upon medical process. Before signing a death certificate it is usual for a competent person to declare the patient dead, using well-known criteria. Is this treaty dead? Are the parties involved stating that it is dead? How many opinions are required?

    You state that the end of the EU is ‘…a legitimate — if mischievous — aim to pursue.’ Some sceptics certainly wish the demise of the EU completely & return to pure inter-governmental cooperation, others wish to go back to the EEC. There is not one end-point that all sceptics agree upon. What is your end-point for the EU?

    I believe the problem in Britain is that the debate in 1975 was mainly upon economics despite the attempts of the ‘No’ campaign. Since then the EU has advanced in a way that was not envisaged at the time of the 1975 referendum & the electorate wishes to be re-balloted. That certainly seems to be the received wisdom, although upon watching the Referendum Replay programmes on BBC Parliament it is clear that constitutional issues were raised at that time, most notably by Enoch Powell & Tony Benn (the men with the staring eyes). In your experience were the constitutional aspects downplayed?

    Today’s public will take the opportunity to vote upon the ideals, implementation & practice of the EU during a Constitutional Treaty referendum precisely because there has been no clear debate & question on the EU itself. It is time that this debate is held, in light of EEC/EU history & progress, with no dissembling from either side. Until then the British electorate will take its chances, mischievously or otherwise, when it can. Do you not agree?

    I apologise for the length of my reply & any ranting. It is a pleasure to find someone who is obviously knowledgeable in such affairs & willing to discuss them. I am willing to be educated!

    Best wishes,

  7. Anonymous says:

    Peter Harvey in Spain

    You say:

    < Whether this measure can be taken without the need for a treaty amendment (or ratification of the constitution treaty, now impossible) is an open question. The EU’s lawyers have reported that only three sections of the Treaty can be saved: the requirement for the Council to meet in public, the possibility of national Parliaments rejecting EU legislation, and the ability for citizens to get up a petition to initiate legislation. < Whether it's desirable is another matter. Even Peter might find it difficult to function as an EU "Foreign Minister" in the absence of an integrated foreign policy across the foreign ministries of all 25 member states, except by ad hoc agreement on specific issues in the Council of Ministers. You seem to be unaware that a common EU foreign and defence policy has been a matter of discussion and policy for a number of years. It is intended so that the EU can speak with a coherent voice and adopt common policies in dealing with the rest of the world. It is widely understood in Europe, where diplomats see the EU as one of the institutions through (rather than with) which they work. It is disliked in Britain because it would seriously hamper the country’s ability to invade foreign countries illegally when called on to do so by Washington.

  8. Brian says:


    I think it’s a pity to introduce this personal note into the discussion. A moment’s thought might have led you to hesitate before suggesting that I “seem to be unaware that a common EU foreign and defence policy has been a matter of discussion and policy for a number of years”. I venture to suggest with all due diffidence that I have considerable experience of active participation in common EU foreign and defence policy-making and execution in a number of countries and roles, including for example personally delivering an EU démarche (which I had originally proposed and whose terms I had helped to negotiate with my EU colleagues and with EU capitals over a number of weeks) to an astonished Polish foreign minister. I have taken an active part in more meetings of EU ambassadors to harmonise where possible our approaches to foreign and defence policy issues than you have had hot dinners, although you may be catching up now. I know from experience when it is possible and desirable to ‘work with and through the EU’ in practising both proactive and reactive diplomacy, and when it isn’t. So I don’t need lessons in that department. I simply repeat that the EU is not a nation-state, that it has no coherent foreign or defence policy across the board in the way that a mature nation state does, and that to describe an unelected official charged with acting as a sort of secretary to national foreign ministers as the ‘EU Foreign Minister’ would be seriously misleading, not only giving a dangerously false impression of his status and authority to the outside world but also giving the citizens of EU member states a quite wrong idea of what the EU is and what it can do. This proposal is, or was, a good example of the misguided attempt to force the pace in exactly the way that has now aroused such antipathy and concern across Europe, facing the EU with its current crisis of popular support and confidence.

    On a different point, I entirely agree with Patrick that Blair (and others) have been inconsistent in their public pronouncements on what would happen in Britain in the event of a No vote in a referendum occurring before we had held ours. To be fair, Blair did modify his position later to the promise that we would hold a referendum in the UK on whether to ratify the treaty “if there was a treaty to ratify”. And of course he still hasn’t actually called off a British referendum: only deferred a decision on it until there has been a collective EU decision on the future, if any, of the treaty. On verra.



  9. Patrick says:

    To continue the debate it seems that this Constitution/Treaty might not be so dead.

    Jean-Claude Junker said after the meeting yesterday:

    “We believe that the constitutional treaty has the answers to many questions that Europeans are asking, so we believe the ratification process must continue”

    and Jose Manuel Barroso said:

    “We don’t want to give up the constitution, nor do we want to carry on with business as usual and pretend nothing has happened.”

    So it seems that that there’s either life after death or that Constitutional Treaties don’t die easily.

  10. Brian says:

    If these great dignitaries, Jean-Claude Juncker of Luxembourg and José Manuel Barroso of the Commission, are really asserting that ratification of the ‘constitution’ treaty in its present form by all 25 member states remains a serious possibility, they surely have a responsibility to explain how this can happen following the referendums in France and the Netherlands. If all they mean is that many of the elements in the draft constitution should and probably can be rescued and put into practice by the EU by other means, that’s another matter, and almost a truism.

    I don’t think they genuinely believe that the treaty can somehow be ratified and brought into operation. But it suits them, and all the other EU heads of government who endorsed the treaty and commended it to their electorates with such an embarrassing lack of success, to avoid admitting that the treaty is dead, since that would mark them all out as failures: they are trying to save face by pretending that it is not dead, but sleepeth. For exactly the same reason it seems quite possible that one or two EU governments will mount a charade in their own countries of holding referendums on ratification, as if that was still an option, in the hope of somehow scraping by with a Yes vote. But I doubt if the pretence that 25-state ratification is an option fools many of us.

    Incidentally I recently heard an experienced EU expert saying on the radio that the UK rebate is enshrined in a treaty and that any decision to change it would need to be ratified by the parliaments of all 25 member states. It’s hard to imagine either house of the UK parliament agreeing to ratify any change that was manifestly to Britain’s disadvantage unless offset by other reforms, especially to the CAP, sufficiently far-reaching to compensate for an expensive modification of the rebate. Britain is already the second biggest net contributor to the EU budget, even after the rebate, and no credible argument has so far been advanced for further increasing our contribution by 66 per cent, the effect of abolishing the rebate (whether at a stroke or over time), especially if those who benefit from the absurdities and injustices of the CAP get their way and the EU budget keeps on growing year by year.


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