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EU Referendum: an invalid treaty

2016-04-13 06:44:49

With the article in Euractiv, followed up by the Mail, there is a glimmer of hope that "Dave's Dodgy Deal" is going to return to its rightful place at the heart of the referendum campaign.

The Euractiv effort is an interview with Alexander Graf Lambsdorff, vice-President of the European Parliament who addresses the issue of whether Mr Cameron's supposed treaty is binding on the European Union.

Says Lambsdorff: "Who counts as the 'the European Union' here? Member state leaders have met within the framework of the European Council, but their agreement is in no way a document of the European Union, but a text of hybrid character, which is unspecified and not legally binding".

He then goes on to say: "At the moment, the whole thing is nothing more than a deal that has been hammered out down the local bazaar".

So far, so good, but it is the Mail which then makes the big deal out the deal being "legally binding", mentioning it no less than eight times in its piece, including the headlines. But whether specifically, the deal is not "binding" is not the primary issue here. The first consideration is whether the treaty is actually valid. And on this matter Lamsdorff is rather helpful.

The point he makes is about the document is it was agreed within the framework of the European Council, but that does not make it a European Union document, as we pointed out here. The Heads of State and Governments were meeting in an intergovernmental forum.

As such, the agreement cannot come under EU treaty provisions or EU law. It is an international treaty which comes under the Vienna Convention on the Law of Treaties, judiciable by the Court of International Justice at The Hague.

What applies specifically is Article 34 and the dictum res inter alios acta vel iudicata, aliis nec nocet nec prodocet. Loosely translated, this means that two or more people cannot agree amongst each other to establish an obligation for a third party who was not involved in the agreement. As Article 34, it states that "a treaty does not create either obligations or rights for a third State without its consent".

Then there is Article 61 on the impossibility of performance, which exempts parties to a treaty from obligations that cannot be performed. And clearly, a treaty which seeks to impose obligations on parties who are outside the agreement is not capable of being performed.

The effect of these two provisions, therefore, is to make the treaty invalid. It is not a valid treaty. And exactly as in the manner of a contract (which shares the same word in German as a treaty - Vertrag), an invalid treaty cannot be binding.

This is the point that must be made, again and again. Mr Cameron's supposed treaty is invalid. It is a non-treaty. It can have no legal effect, and in that respect it is not and cannot be in any way binding on the EU.

Interestingly, there are no claims made in the Government leaflet on having negotiated a new treaty. Any reference is missing. The Government prefers instead to claim is has secured a "special status".

But as long as Mr Cameron personally continues to assert that this is a valid treaty, it is perfectly in order for us to call him out as a liar, as indeed does Brexit Door. If he does not know it is false, he should know. That makes his whole campaign based on a lie.