JURIST Guest Columnist Dr. Laurent Pech, Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, says that Ireland's recent "No" vote in its referendum on the European Union's Lisbon Treaty means that Ireland could find itself marginalised, although certainly still an EU member, if the other EU's 26 other Member States continue to move ahead with ratification….

The most significant change to the European Union (EU) in the last fifteen years is how much it has grown. From the six original founder members, the EU now has twenty-seven Member States. The Lisbon Treaty, signed last December, represents the latest updating of the EU’s basic legal documents and seeks to provide the best institutional framework for the enlarged Union of 27. Unlike the defunct 2004 Treaty establishing a Constitution for Europe which was voted down in France and the Netherlands in 2005, the Lisbon Treaty “merely” amends the current rules rather than replacing them with a new set. To enter into force, like any previous EU treaty, it must be ratified by all the Member States in accordance with their respective constitutional requirements. This is why, unlike the US practice with respect to constitutional amendment where a super-majority (three-fourths) of the legislatures of the US States suffices, any EU Member State, regardless of its size, can theoretically inflict a fatal blow to any new treaty by refusing to ratify it.

This is precisely what happened in Ireland, where a referendum is constitutionally required – following a 1987 judgment of the Irish Supreme Court – for any new EU Treaty deemed to contain reforms altering the “essential scope or objectives” of the EU. On Friday the 13th of June, the Irish electorate rejected the Lisbon Treaty by 53.4% to 46.6%. This is not the first time Ireland has refused to ratify an EU amending Treaty. In 2001, Irish citizens voted against ratification of the Nice Treaty before approving it in 2002 in a second referendum organized after a new declaration was annexed to it and according to which the EU shall not prejudice Irish neutrality.

Before exploring the uncertain future of the Lisbon Treaty and the options available to the EU, it may be useful to briefly review and assess the three most influential reasons for rejection put forward by Irish critics of the Treaty:

1. The Treaty is unreadable and its added-value is unclear: This would appear to have been the main reason cited for voting No in the Irish referendum. The Treaty, however, is no more complex than a typical constitutional amendment bill. Furthermore, this complexity merely reflects Member States’ insistence on maintaining the strictest control over the evolution of law-making at EU level. In other words, it is precisely because the EU is not a “superstate” that it needs a more complicated rule-book. With respect to its added-value, it was indeed difficult for advocates of the Treaty to come up with an inspiring narrative in order to “sell” it as it mostly contains institutional reforms which, to be fully understood, require a great deal of knowledge about the current functioning of the EU. This is not to say, however, that these reforms are not required to make Europe function “better”. The trouble for the Yes camp is that it pursued too many goals simultaneously within an extremely short length of time: it had to explain what the EU currently does, deconstruct the deliberately misleading claims put forward by most anti-Treaty people and finally, clarify the impact of a rather dull, multi-dimensional and technical amending text. And with no obvious price to be paid in case of a “No” vote — at least according to the No-camp during the campaign — Irish voters have been tempted to use the Lisbon referendum to express their frustration about many different things while some hoped to secure an undefined “better deal”.
2. The Treaty undermines Ireland’s power and identity: Due to rather limited public knowledge of how the EU presently works, critics were able to present the reduction in the Commission’s size and the new double-majority voting system in the Council of Ministers (the EU institution representing the national governments) as direct threats to Irish influence. They simply fail to mention that a new system of equal rotation among Member States for future appointments to the Commission will be implemented. In effect, each country would have one of its nationals serving as Commissioner for 10 years out of every 15. As regards the new double-majority voting system, where it applies — unanimity will continue to apply in some important areas including defence and taxation — EU legislation, to be adopted, will require the approval of at least 55% of the Member States, i.e. 15 Member States out of 27 with each Member State getting one vote, representing 65 per cent of the EU’s population. This voting system perfectly reflects the double nature of the EU as a Union of States and of European peoples. It is furthermore more democratic than the current voting system by guaranteeing that a coalition of “small” countries will not pass legislation against the will of the most populated states. Generally speaking, the most important point may be that while Irish membership of the EU membership has had an impact on its de jure sovereignty, it has dramatically increased its de facto sovereignty. Outside the EU, Ireland’s power to shape the norms governing its trade and promote its culture and values, would have certainly been almost nonexistent.
3. The Treaty is a threat to Irish neutrality: It has now become routine for some groups to condemn any new EU treaty as a threat to Irish neutrality. Yet unanimity is still required for a European common defence policy to occur or any decision having military or defence implications. Furthermore, the Lisbon Treaty requires the EU to act in accordance with the principles of the United Nations Charter and with respect for the specific character of the security and defence policy of certain Member States such as Ireland. To argue about the “militarization” of the EU, following the inclusion of the mutual defence and solidarity clauses, is also ludicrous. The codification of a duty to act in a spirit of solidarity in the event of a natural or man-made disaster or of a terrorist attack should be positively viewed as it demonstrates that European solidarity is not an empty slogan. As for the mutual defence clause, i.e. the duty of assistance to a fellow EU State victim of armed aggression, it only offers a diluted version of the NATO clause which today binds 21 Member States out of 27 and importantly, will not deprive Ireland of its right to determine the nature of its assistance in accordance with its constitutional framework. Finally, the EU is, and will remain under the Lisbon Treaty, a “soft” power with very limited military capacities. The civilian aspect of its goals and means of action is overwhelming. In addition, the emphasis on the United Nations Charter and respect for international law is a feature one would like to see enshrined in the US Constitution.

Regardless of the doubtful accuracy of the points raised by anti-Treaty critics, the rules governing the entry into force of the Lisbon Treaty are from a legal perspective clear-cut: unanimous ratification is required. No matter how practically absurd in a Union o
f 27 Member States, such unanimity has regularly led to ratification crises in some Member States following negative referenda. A referendum, by the way, is not inherently more democratic than parliamentary ratification. One may mention the example of the US where only legislatures (and eventually state conventions) can adopt constitutional amendments to the federal constitution. Regardless of whether national referenda are suitable instruments when it comes to voting on unintelligible amending EU treaties, to escape this latest “ratification maze“, several options are now being debated.

The least problematic option would be that the EU continues to work on the basis of the Nice Treaty and for Member States to seek to implement the most consensual provisions of the Lisbon Treaty on an ad hoc basis. Furthermore, if some countries are willing to deepen European integration in certain areas, they may rely upon the provisions governing “enhanced cooperation”. Yet, “small” Member States, including Ireland, have constantly stressed their opposition to the formation of a “core” or “two-speed Europe” and “big” Member States recently emphasized that they would not accept any further enlargement of the EU on the basis of the Nice Treaty.

Another option would be to start from scratch once again and negotiate a new treaty. Key political actors, however, have little appetite left for renegotiating a text which was itself presented as the “Plan B” following the abandonment of the “EU Constitution”. Furthermore, the political environment is now different. Eighteen Member States, including France and Germany, have already ratified the Lisbon Treaty and seem in no mood to let it die after all the efforts spent on institutional reform these past few years.

In a joint statement following the Irish referendum, the French and German governments clearly stated their preference for the continuation of the ratification process. This is the worst scenario for Ireland. Indeed, it means that unless the Irish government decides to organise a second referendum following, for instance, the negotiation of a new protocol/declaration which clearly states that Lisbon does not pose any threat to its neutrality, taxation regime, etc. or grants Ireland the explicit right not to participate to some EU policies, new special “arrangements” will have to be found. This is likely to mean in practice that Ireland will find itself marginalised, although still formally an EU member, if the other 26 countries move ahead. Irish anti-Treaty apprentice-sorcerers may come to realise too late that Ireland needs Europe more than Europe needs Ireland and that by provoking another ratification crisis in the hope of negotiating a “better deal”, they obliged other EU countries to come to the conclusion that unanimity to ratify any new treaty is an unrealistic condition in an enlarged Union.

The willingness of most Member States to proceed further with the ratification of the Lisbon Treaty has been criticized as “anti-democratic”. While one may reasonably object to a change in the rules of the game while the game is still being played, the rules governing the ratification of EU treaties have nothing to do with democracy. They reflect, on the contrary, a traditional feature of international public law according to which treaties, to enter into force, must be ratified by all the contracting parties regardless of their respective population size. There is nothing intrinsically “democratic” in giving Ireland, less than 1% of the EU’s population, the right to block the adoption of the Lisbon Treaty when all the other Member States want to adopt it.

Were critics genuinely interested in democracy, they would favour the adoption of any new EU Treaty by means of an EU-wide referendum on the same day in all the Member States. The required majority for ratification could then be defined as at least two-thirds of the Member States, comprising at least two thirds of the EU population. Such a radical reform could lead to a genuine pan-European public debate and increase the chance of having a discussion focusing on the merits of the proposed text rather than issues of domestic politics. This change, however, is likely to lead to a situation where the EU gains in democratic legitimacy and authority to the detriment of the sovereignty of its constituent members and the influence of “small” countries. In other words, one cannot plead simultaneously for the preservation of as much authority as possible for the Member States and for an EU functioning in the manner of a national parliamentary democracy.

Laurent Pech is Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway and the author of The European Union and its Constitution. From Rome to Lisbon (Dublin: Clarus Press, 2008)
——–