BREXIT

BREXIT

Political developments in Western Europe after the Second World War repay close examination. These events are usually subjected to two conflicting interpretations. The more commonly accepted interpretation is that De Gaulle and Adenauer, the leaders of France and West Germany, launched a visionary political initiative aimed at reconciling the two former warring nations. According to this theory, a political initiative was launched to establish a new order which would enable all Europeans to live free from the dark shadows and terrible fears of war. To this end the balance of power in Europe would be organised to ensure that no state, or group of states, could dominate or come to dominate the continent.  Under “the Luxembourg compromise”, the six states of the Common Market were allowed to veto decisions which were “very important to their national interest”. This proviso apart, the new order derived its political and moral authority from fundamental European democratic values, including liberty, solidarity, respect for fundamental values and strict adherence to the rule of law.  To give effect to the “European ideal”, political wisdom, selflessness of purpose and nobility of spirit would be required.  

However a second possible interpretation exists. It presupposes that the project aimed at integrating and constructing a new Europe was not benign. To participate in the formulation of the new European order, each state would have to pool, share or lose some elements of its sovereignty. The degree to which each state would have to compromise its sovereignty would be determined and laid down in the texts of European treaties, the result of long, arduous and sometimes unbalanced and disingenuous negotiations. These treaties would then be ratified by each state using their own domestic national procedures, including legislation or referendum if necessary. The domestic national procedures used for ratification could vary from State to State. As a result of this process, many states, especially smaller states were sucked into a process which eventually led them to abandon or lose their ability to take sovereign independent decisions and to govern their own affairs. Some political strategists thought that, if Europe could not be conquered by force, then it could perhaps be subjugated by weaving a web of virtually unbreakable treaties establishing new legal political, monetary and currency obligations which could ultimately be enforced through punitive economic and legal sanctions. The now abject and bankrupt people of Greece will have their views on this.

However, each EU Treaty must be validly ratified by each and every EU Member States before it can enter into force. Under Bunreacht na héireann (the Constitution of Ireland) changes or amendments to Ireland’s executive, legislative and judicial arrangements, necessitated by the State’s membership of the European Union, can only be given effect to if these changes are agreed to and approved of by the majority of the people of Ireland voting in a valid and properly conducted referendum. Owing to the exertion and application of entirely unlawful and inappropriate domestic and international pressure, two referendum were held in Ireland in relation to the ratification of both the Treaty of Nice and the Treaty of Lisbon. In each case, the holding of a second referendum represented attempts by the political classes and the economic, business and banking establishments to overturn the sovereign decision of the people  of Ireland freely and  lawfully expressed in a constitutional referendum.  However, Bunreacht na héireann does not provide for the holding of two ballots in relation to a referendum on the adoption or rejection of a Treaty of the European Union. Nor could it have. A referendum is a concept borrowed from Roman Law. In Latin grammar, "referendum" (meaning "that which ought to be decided") is a gerund. A gerund is a construct which exists only in the singular and has no plural. In other words, both legally and etymologically, under the Roman Republic, the people of Rome were invited to vote once, and once only, on the adoption of legal and political decisions of exceptional public importance. By the same yardstick, the respect due to Ireland's sovereignty and the independence of the Irish people requires and demands that the sovereign decisions of its people expressed in a referendum held for the purpose of adopting or rejecting possible changes or amendments to Bunreacht na héireann, contained in a Treaty of the European Union, must be considered as incontrovertible and final. As the relevant and appropriate laws and rules relating to the holding of a referendum to amend Bunreacht na héireann were not followed or correctly applied, the Treaty of Nice and the Treaty of Lisbon were not validly ratified by all the Member States of the European Union  as required by law and never came into force. As neither the Treaty of Nice or the Treaty of Lisbon was ever validly ratified or ever came lawfully into force, the provisions of both these Treaties are not binding in any way upon any state.

The Treaty of Lisbon sought to alter the existing balance of power existing between the European Union institutions. It wished to place the European Commission on an equal or greater footing than the Council and the Parliament in relation to the taking of decisions. Such a development would have the effect of greatly reducing the capacity of sovereign Member States to take independent decisions to safeguard their own national interests and to protect  their own citizens. The Treaty of Lisbon also sought greatly to extend the use of the Qualified Majority Voting (QMV) procedure. QMV is a weighted and inherently undemocratic system of voting which places the interests of the larger Member States such as Germany, France, Italy, Britain, Spain or Poland (or an ad hoc coalition of these states) ahead of the interests of smaller States, such as Ireland, and essentially strips the smaller States of the political will, diplomatic ability and legal means with which to defend their own vital national and democratic interests. QMV can play tricks on the larger States too. It will be recalled that Jean-Claude Juncker, David Cameron’s nemesis, was able to brush aside British objections to his appointment as President of the European Commission thanks to a massive 27 - 2 margin of victory under QMV. However, it now transpires that the QMV procedure should not  have been used in this case because the Treaty of Lisbon was never ratified by all EU member States and never actually entered into force. Some very interesting legal questions under European Law and International Treaty Law therefore now arise concerning the legitimacy and legality of the actions, past and president, taken by Jean-Claude Juncker as President of the European Commission.

Traditionally, the democratically-elected and accountable Head of Government of the Member State which held the European Union presidency chaired the European Council for a period of six months. The text of the still to be ratified Lisbon Treaty provided for the appointment of a permanent (unelected) President to chair meetings of the European Council. It also provides for the appointment of an (unelected) High Representative for External Relations and Security Policy (in practice a Vice-President of the European Commission) as Head of the European Union's diplomacy. Trough these two measures, the drafters of the Treaty of Lisbon sought to reduce the power and influence of the six-monthly national Presidencies and of the Council of Ministers for Foreign Affairs of the European Union those who drafted the text of the Treaty of Lisbon were anxious to centralize in Brussels analysis and decision-taking relating to the conduct of the Union's foreign policy. The establishment of a new European External Action Service (EEAS) also sought to, and had the effect of, reducing and marginalizing the role of national diplomatic services, especially those of the smaller Member States. 

The drafters of the Treaty of Lisbon also sought to fill a peculiar lacuna in European law and in the terms and provisions of the existing EU Treaties. Europe’s founding fathers had never considered that any state would wish to abandon or leave the European project. Or, at least, they thought that if any state ever did wish to abandon the European project, it would never be crass enough to say so openly. Consequently, as in the United States before the Civil War, there was no provision in any EU Treaty expressly-stating a legal right, much less outlining a legal procedure, which would enable any Member State to leave the European Union. The Treaty of Lisbon sought to provide such a right. However, as we have seen, the Treaty of Lisbon was not ratified by all EU Member States and therefore never actually entered into force. Ironically for Boris Johnson, Nigel Farage and others, whatever the result of the popular vote in Britain on 23rd June 2016, there does not exist at present any right under EU Law or International Treaty Law which allows for Brexit, i.e. the United Kingdom's lawful departure from the European Union in conformity with its obligations under public international law. 

As the Duke of Wellington, the Dublin-born victor of Waterloo, observed "If there is one thing sadder than a battle lost, it is a battle won". This has been a dreadful, lamentable and grotesque political campaign. Politicians  from both sides seemed more interested in gaining personal political advantage than in seeking what was good for the UK, Europe or their fellow-citizens. Many used selfish. doubtful or spurious economic arguments. the Bank of England, the City of London, commercial and investment banks, hedge funds, big business and foreign owned multi-nationals waded copiously into the debate and made entirely inappropriate efforts to intervene heavy-handed in the democratic process. Self-seeking prima donnas, who should have known much better, advanced ridiculous but dangerous historical comparisons which exacerbated the already plentiful hatred, Islamophobia, xenophobia, racism and mistrust of foreigners and immigrants which dominated far too much of the debate. Worst of all, the referendum campaign culminated in the horrendous and brutal murder of Jo Cox  MP, a brilliant and compassionate politician and mother, aged just 41, who leaves behind two very  young children. Politics must be conducted very differently.

Although he was scoffed at for saying it, David Cameron is right in one respect at least. Europe and the world are experiencing exceptionally dangerous and turbulent times at present. For all of its addiction to power-politics, greed, arm-twisting and corruption, the European project and the European ideal once started out as very necessary efforts to conjure up light out of darkness and to fashion order out of chaos. Like Arthur O'Shaughnessy's "dreamer of dreams". Europe's leaders and the European Union would appear to have become lost in a dark and opaque mist somewhere along the way. For the European dream and ideal to rise again, Phoenix-like from the ashes, much more generosity, honesty, humility, sincerity and kindness will need to be shown on all sides than was in evidence throughout the Brexit referendum campaign.  

Maurice Biggar

Bachelor of Civil Law (NUI), Barrister at law (King's Inns)

Diplomatic consultant, 21st June 2016