Is a "No vote" constitutional?

View

Just a quick query for the legal experts here.

The purpose of campaigning for a No vote is obviously to prevent an EU Treaty from coming into force by using the referendum process/provisions specified in Bunreacht.

However, it also contains the clause - and I thank Anthony Couglan for this - "No provision of the constitution invalidates the obligations of EU membership" (To paraphrase considerably).

How are these two provisions supposed to be legally squared?

Since the EU Treaties specify the "ever closer union" and has as an objective that the EU will "defend the communitaire acquis and build upon them" (again a paraphrase), it would appear to me that there is probably a legal obligation on member states to do Treaties such as Lisbon (or at the very least not to actively prevent them coming into force).

Comments/Discussion from those with a legal training particularly welcome. Everyone else can sound off too.

Scofflaw

That, I think, formed part of Crotty. Treaties are not part of the obligations of membership - they are, instead, part of the process of membership. Each treaty is a step freely taken - no obligation is involved.

I'm fairly certain there is no legal mechanism by which a sovereign state can be obliged to sign or ratify a treaty.

cordially,
Scofflaw

drkpower

It's very straightforward:
Until the Treaty is fully ratified, it is not an "obligation" of membership. Even now, after we have voted Yes, it is still not an "obligation" of membership. Only after it has been ratified by all 27 states will it become an "obligation" of membership.

View

Hmm, I don't think I phrased that too well in the last post. However, to try again:

Article 2 of the TEU (post-Nice):

The Union shall set itself the following objectives:
....
[FONT=EUAlbertina+20][FONT=EUAlbertina+20]

— [/FONT][/FONT]to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the

Community
....

From this it should be clear that the Union has a clear objective of building on the existing Treaty(/Treaties). Ireland is a member of the Union and as such has literally signed off on that objective. It should be obvious that the only way such an objective can be met, under the post-Nice Treaties, is if the member states come up with new Treaties, such as - altough not necessarily called - Lisbon (i.e. if not Lisbon, then some other similiar Treaty).

Were a member state, such as Ireland in the wake of a post-referendum defeat, to refuse to ratify a Treaty or to come up with a new alternative Treaty (which would be highly similiar to the first given that it is the same member states that negotiate it), then there is no way that the above objective could be met.

This is the position that many of the No campaigners do in fact want to put Ireland in. Personally, I believe that such a position would be politically untenable - i.e. I don't see how, in anything but the short term, it would be possible to maintain a position of refusing point blank to work towards the objectives of the EU (while wanting to maintain membership). That, however, is the political side of the equation.

My question to the legal people here was - does this constitute an "obligation of membership"?

After all, if the Union's objectives cannot be met without having new EU Treaties to change the existing ones, then it is hard to maintain that new EU Treaties (up to the point that the Union's other objectives have been met) do not constitute in practice an obligation arising from the existing EU Treaties.

Hopefully, that is a little clearer...

Scofflaw

View wrote: »

Hmm, I don't think I phrased that too well in the last post. However, to try again:

Article 2 of the TEU (post-Nice):



From this it should be clear that the Union has a clear objective of building on the existing Treaty(/Treaties). Ireland is a member of the Union and as such has literally signed off on that objective. It should be obvious that the only way such an objective can be met, under the post-Nice Treaties, is if the member states come up with new Treaties, such as - altough not necessarily called - Lisbon (i.e. if not Lisbon, then some other similiar Treaty).

Were a member state, such as Ireland in the wake of a post-referendum defeat, to refuse to ratify a Treaty or to come up with a new alternative Treaty (which would be highly similiar to the first given that it is the same member states that negotiate it), then there is no way that the above objective could be met.

This is the position that many of the No campaigners do in fact want to put Ireland in. Personally, I believe that such a position would be politically untenable - i.e. I don't see how, in anything but the short term, it would be possible to maintain a position of refusing point blank to work towards the objectives of the EU (while wanting to maintain membership). That, however, is the political side of the equation.

My question to the legal people here was - does this constitute an "obligation of membership"?

After all, if the Union's objectives cannot be met without having new EU Treaties to change the existing ones, then it is hard to maintain that new EU Treaties (up to the point that the Union's other objectives have been met) do not constitute in practice an obligation arising from the existing EU Treaties.

Hopefully, that is a little clearer...

But no nearer an obligation to vote yes. Ireland may have the obligation to take part in the progression of the union in good faith, and thereby what we might call an obligation to accept treaties in the abstract, but no such requirement applies to any treaty in particular. Indeed, it would be perfectly possible for Ireland, in good faith, to oppose a Treaty it felt went against the expressed goals of the union.

So, if you like, Ireland as a member state has an obligation only to take treaties seriously - and one might argue that the government was in dereliction even of that duty last year.

cordially,
Scofflaw

View

Scofflaw wrote: »

But no nearer an obligation to vote yes. Ireland may have the obligation to take part in the progression of the union in good faith, and thereby what we might call an obligation to accept treaties in the abstract, but no such requirement applies to any treaty in particular. Indeed, it would be perfectly possible for Ireland, in good faith, to oppose a Treaty it felt went against the expressed goals of the union.

So, if you like, Ireland as a member state has an obligation only to take treaties seriously - and one might argue that the government was in dereliction even of that duty last year.

cordially,
Scofflaw

I'd agree with you that there is no obligation to approve a treaty in particular (e.g. Lisbon). But, in general, if you say No to Lisbon (i.e. a "plan A" Treaty), then you need to have a "plan B" Treaty in mind - i.e. in other words, if not Lisbon, then something pretty close to Lisbon. I doubt that anyone could seriously say that coming up with a plan B that was completely different after spending a couple of years negotiating plan A could be construed as acting in good faith.

Needless to say, many/most No campaigners seem dead set against any EU Treaties. They most definitely do not want Ireland acting in good faith.

Scofflaw

View wrote: »

I'd agree with you that there is no obligation to approve a treaty in particular (e.g. Lisbon). But, in general, if you say No to Lisbon (i.e. a "plan A" Treaty), then you need to have a "plan B" Treaty in mind - i.e. in other words, if not Lisbon, then something pretty close to Lisbon. I doubt that anyone could seriously say that coming up with a plan B that was completely different after spending a couple of years negotiating plan A could be construed as acting in good faith.

Needless to say, many/most No campaigners seem dead set against any EU Treaties. They most definitely do not want Ireland acting in good faith.

Well, taking it a step further, I'm not sure that the obligation extends to the people of Ireland at all.

cordially,
Scofflaw

View

Scofflaw wrote: »

Well, taking it a step further, I'm not sure that the obligation extends to the people of Ireland at all.

cordially,
Scofflaw

I am not sure I fully agree with you there. If (the state of) Ireland signs up for EU Treaties then the legal obligations arising from those applies to all citizens not just the Government itself.

Were a private employer to practice discrimination against EU citizens in the workplace, I don't think the courts - either domestic or ECJ - would find much sympathy with the argument that the provisions of Article 50 of the TEU (i.e. the one prohibiting discrimination based on the citizenship of the person) only apply to the Government and not to the employer (i.e. one of the people of Ireland).

nesf

View wrote: »

I am not sure I fully agree with you there. If (the state of) Ireland signs up for EU Treaties then the legal obligations arising from those applies to all citizens not just the Government itself.

Were a private employer to practice discrimination against EU citizens in the workplace, I don't think the courts - either domestic or ECJ - would find much sympathy with the argument that the provisions of Article 50 of the TEU (i.e. the one prohibiting discrimination based on the citizenship of the person) only apply to the Government and not to the employer (i.e. one of the people of Ireland).

I imagine his point was that there would not be an obligation on Irish citizens to come up with a plan B if they voted No.

View

nesf wrote: »

I imagine his point was that there would not be an obligation on Irish citizens to come up with a plan B if they voted No.

I get that in so far as it goes. However, the Government negotiates on behalf of the people of Ireland. Obviously, if the people of Ireland don't know what they want out of the negotiations, then it is impossible for the Government to negotiate. In other words, Ireland can't negotiate.

Equally obviously, if the people decide to change their minds and disagree with the objectives of the EU, then it is hard to see how continuing membership of the EU could be politically tenable or possibly not even legally tenable - i.e. as this would mean that Ireland was not acting in good faith to try to work towards the Union's objectives.

Scofflaw

View wrote: »

I get that in so far as it goes. However, the Government negotiates on behalf of the people of Ireland. Obviously, if the people of Ireland don't know what they want out of the negotiations, then it is impossible for the Government to negotiate. In other words, Ireland can't negotiate.

Equally obviously, if the people decide to change their minds and disagree with the objectives of the EU, then it is hard to see how continuing membership of the EU could be politically tenable or possibly not even legally tenable - i.e. as this would mean that Ireland was not acting in good faith to try to work towards the Union's objectives.

Again, I'm not sure about that - although I can see what you mean, I think the reasoning is slightly different. The Irish government has a duty to act in good faith when representing the Irish people in negotiations, and it also has a duty to negotiate in good faith with the other member states. If the Irish people were opposed to the aims of the EU, and this was made clear by any Irish government in the negotiations, it might well still be possible to negotiate a treaty that the Irish people and the other member states found acceptable.

After all, the UK manages it.

cordially,
Scofflaw