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European treaties and referendumsOn 12 June 2008, 53.4% of the Irish voters (with a turnout of 53.1%) rejected the EU's Lisbon treaty. Some 15 months later, on 2 October 2009, 67.1% (with a turnout of 59%) approved that same treaty. Was this swing of the Irish public opinion due to the assurances given by the European Council in June 2009 that certain Irish laws will not be affected by the Lisbon Treaty in the areas of: the right to life, family and education (mainly the prohibition of abortions); taxation; and security and defence (mainly the prohibition on Ireland joining any European Union common defence arrangement)? Was the swing due to the global financial and economic crisis which had brought the former ''Celtic tiger'' on the verge of bankruptcy? We will not attempt to answer these questions here. We will rather use the Irish referendums (including those of 7 June 2001 and 19 October 2002 concerning the treaty of Nice and the French and Dutch ones concerning the constitutional treaty) as demonstrations of the inappropriateness of referendums for the ratification of treaties. We will try to explain that, far from being democratic, such referendums are undemocratic on several accounts, some relating to the information deficit of citizens (not just of Ireland but of the EU in general) about European affairs and some pertaining to the unsuitability of referendums for the ratification of treaties. Referendums and the information deficit of the EU To have a sense, a referendum must be about a subject that people understand well enough and care about. European integration is unfortunately not among these subjects, not just in Ireland but in all countries of the Union, even the ones that have set the integration process going, some fifty-five years ago [see section 1.1.2]. The fact is that, in spite of the more than 1000 journalists from more than 70 countries accredited to the European Commission [see section 4.1.2], not just the Irish but the European public in general is still ignorant or ill informed about European integration. Few and far between are the European topics, which make the headlines in the printed press and in radio and television transmissions of the Member States of the Union. Worse still, it is the crises, the temporary set-backs, which make the headlines, because they are more sensational than the unexciting decisions, secured on an almost daily basis after patient negotiations, which become European laws and affect the day-to-day lives of citizens, on occasion much more than the laws adopted by the national parliaments. Although they are generally well disposed towards European integration, most citizens either ignore its achievements or take them for granted. In the Eurobarometer surveys, which are conducted each Spring and Autumn under the auspices of the Commission, three fourths of the citizens say that they are not well informed about the institutions and policies of the European Union. Three out of four citizens would like to be better informed about the EU and 85% support the idea that children should be taught in school about the way European Union institutions work. Apparently, the citizens are aware that something important is happening in Europe, in which they cannot participate for lack of general knowledge and day-to-day information and they call for better access to European affairs for themselves and their children. The information deficit, acknowledged by the citizens themselves, means that they are ill informed about the reasons, the goals and the achievements of European policies, laws and measures. The information and communication strategy for the European Union implemented by the Commission with the hypothetical voluntary synergy of the Member States, which should improve perception of the European Union and institutions and of their legitimacy, is clearly inadequate, as demonstrated by the growing indifference of citizens at the European elections [see The apathy of citizens for the European Parliament]. The indifference and/or dissatisfaction of citizens, demonstrated in European elections, opinion polls and referendums must be recognised as a major failure of the integration process and a grave danger for its future. Why does the information deficit endanger the integration process? If the majority of the media adopt attitudes different from the majority of the political elite of a nation, concerning the issue of integration or particular aspects of it, this may lead to a different stance of the majority of the public from that of the majority of the political elite of the nation. We may thus have the following antidemocratic phenomenon: the popular media transforming the political consensus existing among the democratically elected leaders of a nation, concerning the major political issues discussed at European level [see section 9.5], into a public opinion dissent on those issues, orchestrated by non-elected opinion leaders (media tycoons, trendy journalists, popular television speakers, etc.) and/or a vociferous minority (party, movement or union). This has certainly happened in the initial Irish referendums, which rejected the treaties of Nice and Lisbon (on 7 June 2001 and 18 June 2008, respectively). A great many people voted ''No'' because they did not understand what the proposed treaty was about and preferred to listen to the eurosceptic sirens, which announced many ills for their country if the ''Yes'' prevailed. The Irish referendums - and, of course, the referendums in France and the Netherlands on the constitutional treaty, on 29 May and 1 June 2005 - should, therefore, ring the alarm bell for European unification. In all these referendums the people had gone against the wishes (and lukewarm information efforts) of the main political parties, business leaders and trade unions. The majorities of these peoples had believed the lies of eurosceptic media about the loss of their sovereignty, their social rights, their freedoms or their traditional values. European leadership (EU institutions and leaders of the Member States) should consider this alarm signal for what it really is: a serious indication of a fault in the European construction, the absence of the goodwill or, at least, the interest of the people for this construction. This fault is due to the information deficit that European institutions and the leaders of the Member States fail to recognize and repair. Until this flaw is repaired, they should, at least, not fall into the trap of calling referendums for the ratification of European treaties [see section 10.1.3]. When people are asked to give their opinion on something that they don't understand, they normally listen to those who alarm them and reply negatively to the question asked, so as not to take any risks. This is the referendum trap. The unsuitability of referendums for treaty appreciation On top of the imprudence of asking people to evaluate the integration process that they ignore, comes the absurdity of asking these people to assess a complex legal instrument that very few can understand. First of all, it is highly unusual that a treaty be subjected to a referendum for its ratification. Treaties are normally ratified by governments after the assent of their parliaments. This is the customary international practice because practically all modern states, including all the Member States of the EU are representative democracies, i.e. founded on the principle that the people's representatives, organised in legislative bodies, are charged with the responsibility of acting in the people's interest by taking all sorts of legislative acts, including, of course, international agreements. Eurosceptics would like to make us believe that the population at large is in a better position to appreciate a treaty than its representatives sitting in parliaments. This, as said above, is a trap for European integration, because treaties are very complicated legal instruments that cannot be well appreciated by ordinary citizens, who naturally vote against what they do not understand. Treaties can and should be appreciated by lawmakers sitting in representative assemblies - parliaments and senates or lower and upper houses -having the necessary legal preparedness and assistance to comprehend the background, the reasons and the objectives of a complex legal instrument. Referendums are rarely used in large and complex modern states and, even in the rare cases that they are used, they concern a simple answer to a simple question. They should never concern a complex question, presupposing a thorough knowledge and understanding of a lengthy and arduous legal instrument, such as a treaty. International treaties might exceptionally be subjected to a referendum, prior to ratification, if they contained fundamental or vital elements, such as a rearrangement of the borders of contiguous states, requiring the consultation of the populations involved. This is certainly not the case concerning European treaties. Moreover, the actual European treaties are the successors of the original treaties, signed over fifty years ago [see section 2.1], and are even more complicated than average international treaties. They contain not only new elements, necessary for bringing the integration process forward [see section 2.6], but also all the previous provisions on which the construction of the existing stages of the integration process was based, notably customs union, the common market and economic and monetary union [see Part II]. It is absurd to ask citizens to approve or reject a new treaty that contains, in addition to some new measures promoting the integration process, all the pre-existing measures on which this process has been based since half a century. The way the question is put in such referendums, we don't really know how many of the ''No'' votes are against the integration process itself and how many are against its progress as expressed in the new treaty. Referendums and the principle of non discrimination Article 12 of the treaty establishing the European Community prohibits any discrimination on grounds of nationality. The principle of non discrimination means that the nationals of the Member States should all have the same treatment concerning their rights and obligations arising from the European treaties. Concerning the ratification of these treaties, however, a patent discrimination is allowed, since in most Member States the ratification is based on parliamentary approval (the usual procedure for treaties), whereas in some others the direct approval of the citizens is allowed or required. In fact, Article 6 of the Final Provisions of the Treaty of Lisbon says that ''this Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements''. Ireland is the only Member State that has a constitutional requirement to submit the ratification of European treaties to a referendum. In response to a 1987 ruling of the Supreme Court of the Republic of Ireland, in the case of Crotty v. An Taoiseach , major changes to the European treaties are unconstitutional unless accompanied by an amendment guaranteeing the Republic's traditional 'neutrality'. Twenty-six such amendments have been adopted until now guaranteeing that, when approving a European Treaty, Ireland would not compromise its sacrosanct neutrality. Thus, Ireland escaped the general agreement of the heads of State or government to use the parliamentary way for the ratification of the Treaty of Lisbon. But a simple question could then be asked. Why has Ireland a constitutional right to hold referendums for ratification of European treaties and all other countries of the EU don't? Why other traditionally neutral Member States of the European Union, like Finland, Sweden and Austria do not call referendums for the ratification of European treaties and Ireland does? Put differently, why have these countries accepted that the common foreign and security policy of the Union does not hinder their neutrality and do not call their citizens to pronounce themselves on the issue and Ireland does? It is highly undemocratic to ask only the citizens of one or some Member States to express themselves directly by referendum, whereas the citizens of the other Member States should be contented with the normal procedure of the ratification approved by their representatives in the national parliaments. This is discrimination between citizens of the Member States, condemned explicitly by the Treaty itself [Article 12 TEC]. Democratic considerations and the principle of the equality of the citizens of the Union require that they all express themselves on the ratification of a new treaty in the same way: either indirectly through their representatives or directly through referendums held the same day in all countries, so that the results in one country do not influence the citizens of the others. Referendums against the progress of integration In order to have one day a really common foreign and security policy we should have a new revision of the Treaties, which would abolish in fact the distinction between the three pillars of the Union [see section 3.1] and in particular the requirement of unanimity for the decision-making concerning the CFSP. But for this to happen, first should be abolished the requirement of unanimity for the ratification of European Treaties, which, combined with the possibility of referendums on this ratification will forever prevent the European Union from acquiring a functional CFSP and thus becoming a world political power. It is practically certain that not all the Member States of the actual EU would be willing to confer on the Union the competences necessary for building a genuine common foreign and security policy. In a Union of twenty-seven states, it is quite probable that one government, one parliament or a referendum in one country may stop the march of all the others by vetoing the ratification of a new treaty or the amendment of an existing one. Experience to date shows that if the public opinion in some countries is negative on an issue, for example on the common currency, then, even if they want to, the politicians of those countries cannot follow the common march [see section 7.2.3]. The experience on referendums, in particular, shows that public opinion can easily be influenced by eurosceptic mass media, which means that the further progress of the Union depends on the will (and the interests) of certain press and television tycoons and of extremist parties that they influence or support. The conclusion is that the referendums are powerful arms at the disposal of those who wish preventing the European Union from becoming a considerable political power. The way out of the imbroglio created by the combination of the unanimity constraint and the referendums allowed for the ratification of European treaties consists in a simple change in the final provisions of a future treaty on a European Political Union which would say: ''This Treaty shall enter into force after three fourths of the High Contracting Parties have deposited their instruments of ratification''. The proposed majority rule for the coming into force of European treaties is consistent with the international practice on treaties and agreements and with the procedure for the ratification of amendments to the American Constitution [see section 1.5.4]. Let then hesitating Member States have referendums for the ratification of a new treaty and/or stay out of the Political Union for as long as they need to be persuaded to join it. In the meantime, the pioneers could demonstrate the advantages of a real common foreign and security policy, so as to persuade the laggards to join them. The common currency and the Schengen agreement - not to speak of the integration process itself - are major precedents where some countries opened the way for others to follow. Europe would be a little more divided (in fact it is already divided) into three concentric circles [see section 1.5.5]. The first circle would comprise the countries having decided to proceed to their political integration by enhanced cooperation or on the basis of a Treaty on European Political Union. The second circle would encompass all the countries of the first circle and the other countries of the actual European Union, which would like to continue their economic and monetary integration in the framework of the treaty of Lisbon, but would not want to proceed to their political integration. The third circle would include both the countries of the first two circles and the European countries which would like to remain apart from the political as well as the economic integration process and have only an intergovernmental cooperation with the EU countries, as is actually the case with the countries of the European Economic Area [see section 25.1]. This larger circle (that of the EEA) could one day be enlarged to include countries like Turkey, the Ukraine or even Russia, which for various reasons could not be included in the two first circles. Thus, all European countries could have close commercial, economic and cultural relations, without the ones stopping the others from having closer political and security relations. Discuss this themeCurrent discussions
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