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.