The consequences of non-ratification
Can a country be excluded from membership of the European Union? The answer is no. Does a non-ratification of a treaty by a single member state prevent a treaty from entering into force? The answer is yes. Both answers are as true as they are meaningless. I guess that I must have caused some consternation last week, when I wrote that it was possible to exclude a country from the EU as long as there was a political will. Let me explain today how this can be done, in all its gory detail.
For a start, we are not at this point, nor are we going to be at this point soon. There is a serious political process under way to persuade the Irish to hold a second referendum. The Franco-German decision to link further EU enlargement to ratification of the Lisbon treaty should not be underestimated. It serves as a reminder that simply reverting to the Nice treaty is not the risk-free option that some people had hoped. It was one of the Irish No campaign’s most reassuring lies. Peter Ludlow, head of the European Strategy Forum, the debating group, tells me the standoff is likely to come to a head in the middle of next year, when we have reached the final stages of the accession negotiations with Croatia.
Whether the enlargement threat will impress the Irish eurosceptics is unclear. I doubt it. My impression is that the Irish No voters are mostly concerned with their narrow Irish-related issues – whether they have their own European commissioner, how much they get from the EU budget, whether someone will interfere with their corporate taxes. Croatia is a land far away. So we have to consider the possibility that the Irish may indeed not ratify the treaty.
What then? This is the EU without a script. Simply to continue with Nice is out of the question. The negotiation of yet another treaty is not going to happen either. EU leaders have spent the best part of the past decade negotiating treaties. There is treaty fatigue everywhere. And in any case, who would want to do this when any new treaty would have to go through the same ratification circus?
My own hunch is that they will try to find a way to enforce the Lisbon treaty without the non-ratifiers. As a first step, they will try to offer the No-sayers a quit-and-rejoin deal. It would be the least divisive option of all, but unfortunately, it may also be one of the least realistic. It would obviously require their consent, which is far from assured. In Ireland’s case it may require a referendum to get out and another one to get back in.
If this is not possible, there are several other options involving varying degrees of involuntary separation. For example, everybody would formally remain inside the EU on the basis of the Nice treaty, but the ratifiers would organise their areas of co-operation outside the EU and its institutions – on foreign policy, immigration, economic governance, maybe even on energy and the environment. They could do so using the provisions of Lisbon treaty or any other rules they choose among themselves.
Going outside the EU would serve the purpose of preventing otherwise inevitable vetoes or blocking minorities from those left behind. The “enhanced co-operation” procedures embedded in current EU law are not sufficient to achieve any meaningful political co-operation among a subset of member states. They have not been used once and that is one of the main reasons the Lisbon treaty became necessary.
Going outside the treaty is a messy option, no doubt. It would end up deeply intergovernmental. It might lack a proper institutional set-up and it would lack transparent and democratic decision-making processes. Over time, it is possible that these various inter-governmental integration groups could shift back under the umbrella of the EU, but probably not as long as the Nice treaty was in force. Or they could take on their own life outside the EU. The EU would continue to wield its current responsibilities over the internal market, competition policy and a few other areas, but with insufficient funds to pursue any new strategic objectives. It would shrivel. EU leaders would send junior staff to represent them at summits.
There is, of course, the ultimate threat; not a trial separation, but permanent divorce. The Lisbon ratifiers formally leave the EU, and re-group under a new rival organisation. In reality, this is not so much an option, but the thing you do when you have run out of options, the strategic choice of last resort. Like a nuclear bomb, it is a useful device to be used in an emergency, not something you plan for. In any case, we are still a long way away.
I suspect there are several more options that lurk in the European policy drawers. What they all have in common is that they would drive the non-ratifiers out of the mainstream of European integration. Whether they formally leave the EU or whether the EU leaves them is immaterial.
Copyright The Financial Times Limited 2008