The convention on the future of Europe, meeting under the chairmanship of Valery Giscard d'Estaing, is likely to agree on a new constitution for Europe. The EU's governments will adopt this text, with amendments, in 2004. Most of the key issues have already been discussed at length. But so far almost nothing has been said about the most sensitive question: what to do with countries that cannot ratify treaty changes. To its credit, the commission at least mentioned the problem, in its December submission to the convention.
The Irish voted "yes" to the Nice treaty in October, which means that it becomes law throughout the EU. But if they had voted "no," as they did in their first referendum in June 2001, it would have become null-not just for the 3.9m Irish but also for the other 375m people in the EU. And that would probably have delayed enlargement for the 75m people whose countries are planning to join the EU in 2004. In 1992, the Danes nearly stopped the EU in its tracks by voting "no" to the Maastricht treaty; that treaty could not become law until they had changed their mind in a second referendum a year later.
Assuming that the current round of enlargement is completed on time, with ten new members joining in 2004, the ratification of new treaties will become an even more daunting prospect. What if the 400,000 Maltese or the 1.4m Estonians vote "no" to the treaty that comes out of the convention and the 2004 intergovernmental conference? Must other Europeans abandon their plans for reforms that are designed to make the union more democratic and efficient, just because one small country does not like them?
Federalists have, from time to time, suggested that if a majority of the member states ratifies a new treaty, it should enter into force and the minority must grin and bear it. However, it is wishful thinking to suppose that a country whose parliament or people had voted "no" to a new treaty-even one signed by its government-would meekly accept such an alien imposition. The EU has neither the democratic legitimacy nor the threat of force to deploy against recalcitrant countries.
But something must be done about the ratification problem. The draft constitutions of both Giscard d'Estaing and Alan Dashwood (written for the British government) propose a treaty with two main parts. The first constitutional part would set out the aims and values of the EU and its principal institutional arrangements. More detailed and technical provisions for the EU's policies would go into a second part; changes to this part would probably require unanimous intergovernmental agreement, but not ratification.
Such a division of the treaties makes sense, assuming that national parliaments can be persuaded to give up their right to ratify changes to the second type of treaty. But there will be times when the first, constitutional part of the treaty also needs changing.
So the EU still requires a new procedure for making ratification easier. Here is a proposal which would allow the majority of EU citizens to push ahead with a treaty change, if they wished to, while respecting the sovereignty of nations which reject change.
As with the current system, any amendment to the first treaty would need the unanimous agreement of the governments. Each member state would then be required to ratify the change within 18 months, either through parliament or referendum, depending on their political customs. The treaty would enter into effect, so long as any countries that failed to ratify did not have populations amounting to 10 per cent or more of the EU's total population. Ten per cent is likely to be about 45m after enlargement. Therefore one of the big four-Britain, France, Germany and Italy-would be able to block a treaty change on its own, as would a group of smaller countries with a combined population of 45m. Then the treaty would become void.
The small countries might find it hard to accept that a single large country could block a treaty change, while a single small country could not. But the fact is that the EU's current decision-making procedures give small countries a voting weight that is disproportionate to the size of their populations. This is the inevitable consequence of so many EU decisions requiring unanimous agreement. Think of how Greece vetoed the EU's recognition of Macedonia's independence for many years or, indeed, how the same country has in 2002 vetoed the arrangements by which the EU would borrow Nato military assets.
Furthermore, small countries are over-represented, relative to their populations, in the council of ministers, the commission (every country will soon have just one commissioner) and the European parliament. In any case, the procedure proposed here does not discriminate against people in small countries. Any group of 45m people would be able to block a treaty change, whether they lived in one large country or several small ones.
Suppose, then, that a treaty change becomes law, after ratification in most EU countries, but that one or a few small countries withhold their approval. The country (or countries) concerned would then have two years to think again. During that time the government could negotiate any number of declarations with its EU partners, to clarify certain aspects of the treaty, perhaps to reassure its population. Or it could seek to negotiate an opt-out from the new treaty.
Such an opt-out would be viable only if it did not damage the effectiveness of the union's common policies and institutions. For example, Denmark might wish to negotiate an opt-out from the establishment of a European army; an army would work perfectly well without the Danes. But Denmark would not be allowed to opt out of the EU's trade or foreign policies, or from the basic institutional provisions that have to apply to all members.
If the country concerned were then able to ratify the new treaty, with added declarations or opt-outs, the problem would be solved. But if it could not, its government would be obliged to leave the EU and enter the European Economic Area (EEA), to which Iceland, Liechtenstein and Norway belong. The latter accept the rules of the EU's single market but have no vote on the making of EU laws. EEA members do not receive payments from the agricultural or regional policies, and do not participate in EU foreign policy.
What if the country obliged to leave was in the euro? A country that left the EU would be free to abandon the common currency. But if it wanted to stay in the euro-and for the sake of economic stability and foreign investment it is likely that it would wish to remain-it should be allowed to do so, so long as it met certain conditions.
On the face of it, it might seem odd for a country to be in the euro but not the EU. However, Norway and Iceland are already in the EU's Schengen agreement, under which they have no passport controls with other EU states, despite being outside the EU. The future institutional architecture of Europe is likely to include several such wrinkles and exceptions. The decision of a country not to integrate in one area should not prevent it from staying integrated in others, especially when-as with the euro-disengagement could lead to real hardship for some companies and individuals.
So far, no senior European politician has proposed solving the ratification problem on the model sketched out here. But the problem will not go away. And there are plenty of east Europeans who are likely to be much more awkward than the Irish or the Danes.
