Richard North, 02/12/2004  

If one or more major countries fail to ratify the EU constitution, the remaining countries could withdraw from the current treaties and then refound the Union on the basis of the constitution – leaving the refuseniks high and dry.

That is a novel solution to breaking the "ratification bottleneck", proposed by the Instituto Affari Internazionali, in a paper co-authored by its director, Ettore Greco, and Gian Tocaso, a professor in European law at Rome University.

The authors invoke the provisions of the Vienna Convention on the Law of Treaties to support their solution, arguing that Articles 56 and 62 permit parties to a treaty to withdraw in the case of a "fundamental change in circumstances" – a situation which would exist in the event of some signatories not ratifying the constitution.

Withdrawal, they write, is permitted in situations of particularly serious crises and thus "withdrawal from the Union appears to be legitimate at least in the presence of such a serious circumstance as the failure to ratify the CT (Constitutional Treaty)".

Earlier in their paper, the authors concede that the option of withdrawal is open to member states which do not ratify the constitution, but what they address in their novel proposal is a means by which the (assumed) majority of member states who wish to proceed with the constitution can overcome the veto of non-ratifying members.

Although, in strictly legal term, the pro-constitution faction could not go ahead without the assent of the non-ratifying signatories, this ploy would have that effect, leaving the others high and dry, outside the Union, with the existing treaties effectively annulled.

Coming as it does from two powerful and authoritative authors, at the centre of the project, the acceptance of this option as a real possibility could have a powerful impact on the constitutional debate in the EU. It could lend credence to claims by Blair and the "yes" campaign that a "no" vote in the referendum could indeed lead to the UK leaving the EU, whether it liked it or not.

While this would be welcomed by many "no" campaigners, not least the authors of this Blog, it could add immeasurable to the difficulties of winning a "no" vote, and perhaps prove the ultimate weapon that secures a "yes" vote in the referendum.

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