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PROVIDING A CONSTITUTIONAL FRAMEWORK FOR WITHDRAWAL FROM THE EU: ARTICLE 59 OF THE DRAFT EUROPEAN CONSTITUTION

Published online by Cambridge University Press:  17 January 2008

J Friel Raymond
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Abstract

After almost 50 years in existence in a variety of different forms, the EU finally has an express proposal on the table dealing with the potential withdrawal of a Member State. Article 59 of the draft Constitution states that any Member State may now ‘decide to withdraw from the European Union in accordance with its own constitutional requirements’.1 The Member State would have to formally notify the European Council of this decision. The Council and the Member State would then enter into negotiations on a mutually agreeable basis for withdrawal, including a framework for the future relationship between the EU and the Member State. The results of this negotiation would require approval by a qualified majority of the Council after obtaining the consent of the European Parliament.2 In any event, withdrawal would occur not later than two years following the notification unless extended by agreement between the Member State and the European Council.3

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 2 , April 2004 , pp. 407 - 428
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 See Art 1–59 (1) of the Draft Convention: Conv 724/03 Annex 1 and see below for a fuller discussion.Google Scholar

2 Ibid, Art 1–59 (2). The State seeking to withdraw can take no part in the Council or European Council discussion or decisions concerning it.

3 Ibid, Art 1–59 (3).

4 It should be noted that the EU represents a unique departure in international law and as such, the applicability or otherwise of the law of treaties may be moot, particularly given the view of the ECJ and the doctrine of supremacy discussed below, see in particular Costa v ENEL, ibid.

5 Art 56 states: ‘ 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under para 1', Vienna Convention on International Treaties UN Doc A/Conf 39/28, UKTS 58 (1980) 8 ILM 679.Google Scholar

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34 The approach of Member State courts is not limited to that of the United Kingdom, the UK has simply been significantly more honest and open around the discussion. Similar difficulties with secession are to be found in the jurisprudence of other Member States, in particular France; see Administration des Douanes v Societe Cafes Jacques Vabre & J Weigel et Cie SARL [1975] 2 CMLR 336; Union Democratic du Travail ADJA (1980) 40 (22 Oct 1979); Societe Bernard Carant (27 Apr 1988–noted in Sixth annual report OJ (1989) C 330/54); Cohn The Conseil d'Etat: continuing convergence with the court of justice 16 ELREV 144; Roseren The application of Community Law by French courts from 1982 to 1993 31 CMLREV 315; Boisdet [1991] 1 CMLR 3; Decision No 92–554 of 9 Apr 1992, JCP 1992. J 162 Rev gen Dr int'l pub 1992.507; [1993] 3 CMLR 345, paras 21852–4; and Art 88 of the Constitution.Google Scholar

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37 Almost all of the Declarations of Causes by the confederate States complained about federal breaches of constitutional obligations and limits. The national government was cited for ‘dangerous infractions of the Constitution’. In the case of Texas they stated: ‘By the disloyalty of the Northern States and their citizens and the imbecility of the Federal Government, infamous combinations of incendiaries and outlaws have been permitted in those States and the common territory of Kansas to trample upon the federal laws, to war upon the lives and property of Southern citizens in that territory, and finally, by violence and mob law, to usurp the possession of the same as exclusively the property of the Northern States.’ At <http://members.aol.com/jfepperson/reasons.html> last visited 6 Nov 2002. See also <http://www.cwc.lsu.edu/> last visited 6 Nov 2002+last+visited+6+Nov+2002.+See+also++last+visited+6+Nov+2002>Google Scholar

38 Under the Treaty with Great Britain ending the War of Independence dated 3 Sept 1783, Her Majesty's Government in Art 1 recognizes the thirteen colonies as ‘free sovereign and independent States’, although this may have been a tactic by Great Britain to set up a divide and conquer scenario, which partially came true in the civil war as Great Britain sided, albeit in a limited way, with the confederacy. See generally Berger Federalism, The Founders Design (Norman, OK University of Oklahoma Press 1987) for a counter argument, that the original thirteen colonies were not States and therefore do not predate the United States.Google Scholar

39 Above n 9.Google Scholar

40 South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, North Carolina, Tennessee, Missouri, and Kentucky.Google Scholar

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44 Ibid. This use of ‘perpetual’ in the precursor Articles of Confederation also provided a strong basis for an implicit concept of indissolubility referred to by Abraham Lincoln in his inaugural address, see n 35. Of course the phrase ‘to form a more perfect Union’ and the perpetual nature of the entity being created are concepts familiar to European lawyers.

45 Ibid

46 See websites such as <www.freehawaii.org and www.calrepublic.tripod.com>..>Google Scholar

47 In more recent times, this view has been contested, see Vipond, RLiberty and Community: Canadian Federalism and the Failure of the Constitution (Albany, NY State University of New York Press 1991);Google ScholarSmith, J ‘Canadian Confederation and the Influence of American Federalism’ (1988) 21 Can J Pol Sci 443;CrossRefGoogle ScholarBaker, GB ‘The province of post confederation rights’ 45 University of Toronto LJ 77(1995).Google Scholar

48 Although not necessarily creating a strong national identity.Google Scholar

49 Changes included the withdrawal, or restriction, of national government from, inter alia, provincial control, foreign relations, equalization payments and fiscal control. The British North America Act has been repatriated to Canada as its constitution under the Canada Act 1982 Eliz c 11 (UK). Quebec failed to ratify this newly repatriated constitution.Google Scholar

50 See generally, Latouche, DCanada and Quebec, Past and Future: An Essay (TorontoUniversity of Toronto Press 1986);Google ScholarMcwhinney, EQuebec and the Constitution 1960–1978 TorontoUniversity of Toronto Press 1986);Google Scholar

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54 Originally there were four Union republics: Russia, Ukraine, Belorusa, and the Transcaucasian Federation. This would later rise to a total of fifteen Union republics.Google Scholar

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56 Ibid, Art 76.

57 Ibid Art 80.

58 Meeting between the Presidents of Russia, Belarus and the Ukraine. See text in (1992) 31 ILM 138.Google Scholar

59 The so called Alma—Ata Summit, see above, n 57 for text. See also, Voitovich, SA ‘The Commonwealth of Independent States: An emerging institutional model’ (1993) 4 EJIL 403.CrossRefGoogle Scholar

60 The Declaration of European Community Foreign Ministers 27 Aug 1991 (Brussels) refers to the ‘restoration of sovereignty and independence of the Baltic States’.Google Scholar

61 See the situation in Lithuania, referred to above.Google Scholar

62 The so called Lacken Declaration, accessible at <http://european-convention.eu.int/pdf/LKNEN.pdf> last visited on 8 Apr 2003.+last+visited+on+8+Apr+2003.>Google Scholar

63 Although it should be noted that the submission does not carry either the support or agreement of Her Majesty's government.Google Scholar

64 Submission by Peter Hain (UK) of draft Dashwood treaty on Union by Professor Alan Dashwood: at <http://register.consilium.eu.int/pdf/en/02/cv00/00345en2.pdf> last visited 28 Oct 2002.+last+visited+28+Oct+2002.>Google Scholar

65 Ibid, at 49

66 Although Dashwood indicates in the commentary that the exact role of the Parliament might be enhanced, for example requiring its assent to any such modifications, see Ibid, at 49.

67 Conv 235/02.Google Scholar

68 Ibid, at 6 although it is not strictly true to say that a federal form of government automatically has to prohibit secession. K Wheare Federal Government (Oxford OUP 1963) 85–7 (a right to secede is consistent with a federal system of government). Of course permitting secession must be seen as a last resort if the political will to work through problems is to be sufficiently focused.

69 Ibid, at 8. The federal model is rejected as being one unlikely to be acceptable to the people of Europe. Essentially the argument is that while the people of Europe are supportive of the component parts of the Union, they may balk at a model that would present these component parts as a whole.

70 Ibid, at 6. The confederal model is rejected as being unworkable as the Union enlarges. The argument is that the confederal model would greatly exacerbate the current difficulties of the Union as the number of States increased, in particular it would enlarge the democratic deficit, reduce accountability, heighten conflict between States and so forth.

71 Ibid, at 12, this would be much closer to the Badinter formulation, see n 45.

72 Submission by M Robert Badinter at <http://register.consilium.eu.int/pdf/en/02/cv00/00235en2.pdf> last visited on 28 Oct 2002.+last+visited+on+28+Oct+2002.>Google Scholar

73 531 US 2000.Google Scholar

74 See the procedural analysis below.Google Scholar

75 The Opinion of the Commission on the Draft Constitution in its entirety states that there are ‘some imprecise and ambiguous wording’, see COM (2003) 548, at 4.Google Scholar

76 Note that the Commission Opinion on the Draft Constitution criticizes the unanimity requirement for constitutional amendment, see COM (2003) 548.Google Scholar