Sunday, 4 October 2009 Lisbon Treaty Discussion
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Freeborn John Status: Offline
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Default Lisbon treaty text by Article: Article 50 TEU (withdrawal)

It is sometimes said by EU supporters that EU sceptics should vote for Lisbon because it is the first EU treaty to include a specific provision on withdrawal. This is a highly disingenuous. International treaties (like those on European Union) may be divided into those (like Lisbon) which include provisions on a party withdrawing and those (like Rome through Nice) which have no such provision. But the lack of such a provision does not mean that withdrawal is impossible. Article 56(1) of the Vienna Convention on the Law on Treaties states:

Article 56(1) of the Vienna Convention on the Law on Treaties (applies now under Nice)
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.
A leading text on the law of treaties says ‘the constituent instrument of an international organisation…almost certainly falls within paragraph (b)’. In other words a signatory state is free to leave an international organization even if the treaty setting up that organisation has no specific provision on withdrawal. What Lisbon does do (in Article 50 TEU) is include such a specific provision on withdrawal. because of that Article 54 of the Vienna Convention on the Law on Treaties would apply should Lisbon come into force. It states:

Article 54 of the Vienna Convention on the Law on Treaties (would apply under Lisbon)
The termination of a treaty or the withdrawal of a party may take place:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting States.
So the change in Lisbon on withdrawal is not to grant a right of withdrawal but to set out (in Article 50 TEU) the procedure to be followed should any state want to leave at some point in the future, for reasons yet unseen. The question then arises as to whether this procedure is more onerous than that implied by Article 56(1) of the Vienna law of treaties quoted above that allows it to leave unilaterally today. I would suggest Lisbon would make the situation slightly worse for the withdrawing state in that it sets out a two-year negotiating period during which the member-state will be excluded from the EU Councils on decisions concerning its withdrawal and is obliged to follow all the EU rules for two years after which it could do what it can do today without waiting two years; walk away.

The claims of EU supporters that EU-skeptics should vote for Lisbon on the grounds that they are locked into the EU now without Lisbon is false. It is a rather obvious ruse and a dangerous one. There is the question of what would happen should a subsequent EU treaty (or the Lisbon self-amending 'ordinary revision procedure') be used to change Article 50 TEU in a way that would make it harder (or perhaps impossible) for a state to leave? Then a state really might find that it was locked in.

Article 50 TEU
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
Noun 1. yes-man - a person of unquestioning obedience; person who accepts the leadership of another; someone who is easily taken advantage of

Last edited by Freeborn John; 4 Weeks Ago at 04:21 PM.