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Just a reminder
This is an old posting on Euobserver, but could do with being revisited, because it is obvious that some within the Union do not believe in sticking to their international treaties. If sovereign nation states agree an international treaty, they are agreeing to all of it, not only the bits they like. Why do these people believe they can rewrite or re-interpret parts of treaties that have been agreed, If all states have agreed that no changes to a treaty can be made without 100% agreement then that is the legal situation, France and Germany have no more power than Greece or Britain in this respect.

Kimmo Kiljunen is a Social Democrat member of the Finnish Parliament and was a Member of the European Convention drafting the European Constitution.

The Treaty establishing a Constitution for Europe is, as the name says, an international treaty and legal in nature. It replaces all existing Founding Treaties with a new one and can only be abolished by agreement between all the parties concerned. Otherwise they will remain in force.

So there is nothing to worry about. If Britain or Finland, for example, were to reject the Constitution, it would simply vanish. The whole project would come to a halt, and the efforts made would have been wasted. Life would go on as usual under the existing Founding Treaties.

Is this really what would happen?
Over two hundreds years ago, the same problem existed when the Philadelphia Convention drafted the Constitution for the United States. The Founding Fathers had no intention of trusting their Federal plans to the vacillations of small individual states.

The 1777 Articles of Confederation required a unanimous decision by all States to enact any amendment. What happened in Philadelphia in 1787 was a coup. Instead of requiring unanimity, the new Constitution was allowed to come into force when two thirds of the States had ratified it. Those states would then found a Federal State, leaving the non-ratifying states outside.

Everybody needs to agree
The European Union is not a federal state and is not becoming one. Its Constitution will remain an intergovernmental treaty. So a unanimous decision by Member States is needed to amend the founding Treaties.

But the Convention led by Giscard d’Estaing did allow for contingencies. At the end of the Constitution a declaration was attached stating:

“If, two years after the signature of the treaty amending the Treaty establishing the Constitution, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.”

This is abundantly clear. The UK might reject the Constitution but cannot prevent France and Germany from ratifying it. German Foreign Minister Joschka Fischer reminded us of this at the Convention: “In the EU, no one can force anyone to advance, but neither can anyone prevent the others from advancing.” Clearly stated!

French referendum to address the fate of the Constitution
If one or more member states encounter difficulties ratifying the Constitution, the matter has to be referred to the European Council. What would be the result?

Certainly not a reversion to the old founding Treaties, if the opposing member state is a small one – or even eurosceptic Britain. It would be forced to draw conclusions: it would be looking at some sort of associate membership, observer status or, ultimately, withdrawal from the Union.

In this regard, the situation is different in France or Germany. The referenda in France would genuinely address the question of the fate of the Constitution. Opposition by France or Germany would undoubtedly wreck the entire constitutional process.

So, voters in France, in contrast to voters in Britain or small member states will be answering different questions in the referenda: the former will be deciding the fate of the Constitution, the latter will be deciding their own fate in the Union.

What a load of twaddle, Mr Kiljunen is mixing up legality with politics, legally the first part of the statement is correct, because each country must agree to changes in the present treaties. Mr Kiljunen takes the basic truth that one state cannot stop another ratifying the Constitution, but then tries to extend that into the Constitution coming into force, the fact that France and Germany have ratified does not bring the Constitution into force, that only happens when all states have agreed.

The Constitution cannot come into force unless every country has ratified, the fact that France or Germany has ratified has no relevance to that matter at all, the fact that no country can prevent another from ratifying has no relevance. This fact may be inconvenient to the inergrationalists but that is the situation. Politically they may well put pressure on dissenting states, but legally they do not have a leg to stand on.

The only way they can force the issue is to abrogate the present treaties and set up a new Union leaving those dissenting state as the only remaining members of the EU, they cannot then remain in the EU themselves. The EU is founded on the treaties, they cannot claim those for themselves because it will be them that are leaving not the states that refuse to ratify changes to those treaties. They will have to set up an entirely new Union which would be founded on their own Constitution.

Martin Howe QC
Could a majority of other member states proceed with the Constitution if the UK rejects it?
The answer to this question is a clear “NO”.
There is a Declaration attached to the draft Treaty which states that if, 2 years after signature, four fifths of the member states have ratified it but one or more have “encountered difficulties in proceeding with ratification”, then the matter
will be referred to the European Council. This declaration has in some quarters been misunderstood or even misrepresented as enabling the European Council in some way to allow the Constitution to come into force even if up to one fifth of the member states refuse to ratify it.
In fact, it allows no such thing and the European Council will be powerless in the face of such a refusal to ratify. Art IV-8(2) provides, correctly in accordance with the existing European Treaties and international treaty law, that the treaty establishing the Constitution shall enter into force after all States have deposited their instruments of ratification. Since the Constitution would repeal and replace the existing Treaties of Rome and of Maastricht, it is essential to comply with the procedures laid down in those treaties for their amendment, and these
explicitly require the assent of all existing member states “in accordance with their respective constitutional requirements”.

Giscard d’Estaing has canvassed a radical attempt to overcome this requirement. He has said “We have to abrogate the (EU) treaties that exist. If a country says that is does not like the new treaty, there’s no existing structure for them to cling to, they cannot seek refuge in the old
agreement… you can maintain an economic role, but you can no longer be in this political system.”
This radical suggestion implies that the majority of member states who wanted the new Constitution would simply tear up the existing Treaties of Rome and Maastricht and then sign up to the new Constitution as a new agreement between themselves. This radical idea presents a number of serious problems.

First, it would be a flagrant breach of international law and a violation of the Treaty rights of the dissenting minority State or States.

Secondly, the new entity could not legally acquire the institutions, property or funds of the existing EC and EU (including the funds of the ECB), which would continue to belong to all existing Member States.

Thirdly, the new entity would not succeed automatically to the international agreements of the old EC and EU. Any such agreements would need to be re-negotiated with the international counter-parties who might impose additional terms as a condition of renewing the agreement
with the new EU, or might refuse consent altogether.

Fourthly, scrapping the existing EC Treaty would also scrap the euro. The euro of the new
entity would legally be a new and different currency from the euro of the old EC. Commercial and banking laws of the member states would need to be amended to substitute the new euro for the old euro, and to validate existing contracts expressed in old euros. It would not be possible to impose such changes on either the dissenting Member States or on third
countries, leading to chaos in international currency and trading transactions.

And there would be a fifth problem which would present even more practical difficulties. The existing EC and EU Treaties are heavily embedded in the internal constitutional and legal orders of the Member States, in many cases being explicitly referred to in national constitutions. Obtaining the necessary constitutional ratifications and consent to the repudiation of these Treaties would be a major task,

This series of legal, moral, constitutional and practical difficulties means that the idea of tearing up the existing EC and EU Treaties in order to bludgeon a dissenting minority of Member States who fail to ratify is a complete non-starter in the real world. Of course, there has always been a strand of thinking in the grand European project, under which legalities are meant to be merely subservient to the political will. But I think that the noises which have been made by Giscard and others should be treated as no more than a completely empty attempt to browbeat dissenting nations, particularly smaller nations, with a blatantly illegal threat to tear up existing treaties and throw them out of the EU if they decline to accede to his grandiose plans. The idea is in reality pure bluff, and should be treated as such.