The Tories and the Lisbon Treaty: a postscript

By Brian Barder

I have expressed earlier my conviction that it will turn out to be a disaster for Britain if the Tories, having won the general election in a few months’ time, carry out their threat either to hold a referendum on ratification of the Lisbon Treaty if it has not yet been brought into effect at that time, or, if it has, to demand that it be re-opened and re-negotiated.

In discussion of the issues raised by this Conservative Party commitment, not enough attention has perhaps been given to the fact that Britain has completed ratification of the Lisbon treaty, and has lodged the instrument of ratification (as required by EU law) with the Italian government in Rome. Britain has given its formal legal approval to the treaty and will thus be bound by its terms if and when it is brought into effect, probably after a positive vote in the second Irish referendum, at which point the Czechs, Poles and Germans are expected to complete their ratification processes too (none of them requiring a referendum). The treaty would then have been formally approved unanimously by all EU member states and would come into force.

There is a convention in international affairs that after a change of government, the new government continues to observe its obligations under existing treaties, which indeed form part of international law. When there is a coup d’état in (for example) a developing country, the first message passed to the new ruler by anxious western governments is a reminder that he – rarely she – must abide by his country’s existing treaty obligations. The reason is obvious: international law would be a constantly shifting, indefinable muddle – even more incoherent and inchoate[1] than many think it is already – if every new government felt itself free to cherry-pick which treaty obligations to respect, and which to repudiate and “re-negotiate”. Britain has ratified Lisbon, in common with 22 out of the other 26 EU governments, and that should be that.

Of course if Ireland votes No again, or the Czechs, Poles or (improbably) the Germans decline to ratify, the treaty can’t be brought into effect and all bets are off. But that’s not the scenario envisaged in the Conservative Party’s policy commitment.

The convention of respect for existing treaty obligations is not legally binding (as far as I know – perhaps some helpful lawyer will correct me if I’m wrong?) and it’s open to governments under the terms of some treaties to withdraw from them them if they include provision for doing so, or if the circumstances obtaining at the time of the coming into effect of a treaty change so radically that the treaty is clearly no longer applicable. As Wikipedia sagely puts it, –

“In public international law, clausula rebus sic stantibus (Latin for “things thus standing”) is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an “escape clause” that makes an exception to the general rule of pacta sunt servanda (promises must be kept)”.

Someone might remind Messrs Hague and Cameron of the “general rule”: promises must be kept, even if they were originally made by the other side. They are made on behalf of the whole country, not just for one party or for the duration of a particular government. The reaction to any demand for re-negotiation of such a recently ratified treaty by a new British government, or for the withdrawal of our ratification of it, on the part of the majority of our EU partners might well be that if we are no longer satisfied with an essential building-block of the new expanded European Union, approved by every single EU government, then we must exercise our right under the treaty to withdraw from the Union. A more devastating example of the law of unintended consequences (if the Tories mean it when they say they favour continued EU membership) would be hard to find.

This is one more reason for looking askance at this particular element in Conservative Party policy, on top of the likely malign practical consequences for Britain, politically and diplomatically, if the Tories, once elected, go ahead and carry out their threat – see my earlier post on this. Caveat emptor!

Update (31 May 09): Gratifyingly, yesterday’s front-page lead story in the Guardian (“Tragic, unwise: grandees turn on Cameron over plans for EU”) reports that the Conservative party’s EU policies are to be attacked today by a group of senior Tory figures and senior former diplomats:

“A group of Tory grandees and former ­senior diplomats will tomorrow launch a devastating attack on David Cameron’s flagship Eurosceptic policies, warning that they pose a threat to British influence in the European Union.“

The group includes Lord (Leon) Brittan (a former Tory home secretary and EU Commissioner), Lord (Christopher) Tugendhat (former Tory MP and EU Commissioner), Lord (Chris) Patten (former Tory MP, Chairman of the Conservative Party and EU Commissioner), Lord (Patrick) Wright (former British ambassador and Head of the Diplomatic Service), and Lord (John) Kerr (former British ambassador to the EU and former Head of the Diplomatic Service). These are all men with direct experience of the EU: they know whereof they speak. As Nicholas Watt’s Guardian article says:

“Retired diplomats are careful about speaking in public. However, the strength of their language reflects Foreign Office concern that Cameron will trigger the worst crisis yet in Britain’s relations with the EU”.

Well, I’m not sure that the first part of that is universally true; the second part certainly is. What’s more (no pun intended), this is not simply a question of British “influence” in Europe (easily derided concept): it’s a question of a British government’s ability effectively to defend and promote Britain’s interests in the formulation of EU policies and laws which directly affect the lives of all of us. If we join up with the barmy fringe parties of east and central Europe and thereby alienate the big players and natural allies such as France, Germany, Italy and Spain, and if we obsessively pursue demands (such as re-opening and re-negotiating a treaty that Britain has formally ratified and which has near-universal support among our partner governments) which stand no chance of gaining majority support in the EU, British interests, not just influence, will be damaged – perhaps terminally.

I’m glad that this issue is now earning banner headlines. I hope my Guardian letter on the subject on 22 May, if not my previous blog post spelling the arguments out at greater length, may have contributed to a growing public awareness of the dangers posed by Mr Cameron’s and Mr Hague’s obstinate commitment to diplomatic suicide.

[1] Inchoate: unfinished, only partially formed (not a pedantic synonym for ‘chaotic’ or ‘incoherent’).

Brian