The Lisbon Treaty - The Problem of Democratic Legitimacy

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The Lisbon Treaty: The problem of democratic legitimacy

By Henrik Clausen
Introduction
The process surrounding the EU Constitutional Treaty, now the Lisbon Treaty, has been
subject of significant debate. The referendums in 2005 focused more on the contents of the
treaty than the process, as the outline for the process was clear: It was to be adopted after
consent of each single member nation (then 25) of the European Union. Lack of consent by
even a single nation would cause the Treaty to be abandoned, but that was not expected to
happen, and a public affirmation of the treaty, as well as the politicians behind it, was seen as
desirable.
Spain was the first country to hold a referendum, and it

passed with a large majority.
France was next, and the initial polls showed a significant

majority in favor of the Constitution. However, the lead
narrowed during the campaign, and the referendum itself
came out with a remarkable 55 % No vote, which was
expected to kill the Treaty solid:
http://en.wikipedia.org/wiki/French_referendum_on_the_
European_Constitution
Three days later the Dutch referendum rejected the Treaty

with an even larger 61.5 % majority:
http://en.wikipedia.org/wiki/Dutch_European_Constitutio
n_referendum%2C_2005
The two results caused the ratification process to be halted in the remaining countries. There
was no doubt that the results were legitimate, and the voters had debated the substance of the
Treaty with politicians who were alarmingly unprepared and unable to answer real questions
on the treaty they advocated.
It was debated what the cause was for the rejection. The issue of the Turkish accession
process, which was initiated in spite of public opinion, probably played a role, as did the
recently introduced Euro, generic unhappiness with the incumbent government etc.
But while these issues probably contributed, as voters would protest their lack of influence on
them, there was little doubt that the content of the Treaty was the most important reason for
the result, as also indicated by the swing from positive to negative attitude in the polls leading
up to the referendums. There is no doubt that the rejections were solid.
After these remarkable results, the remaining referendums were 'postponed' or canceled, and
the politicians declared a "period of reflection" to consider their next steps. For a while, the
project seemed at a complete standstill. It had been an exhausting process to negotiate
intricate voting rules and the other details of the Constitution Treaty, and few seemed
interesting in starting the process over, even at the risk of having the result rejected yet again
by the voters. It was contemplated what kind of treaty the citizens actually desired, but it was
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no easy task to figure it out. A general consensus, though, was that a less extensive and less
'constitutional' treaty would be the way to go.
The lady who got the project back on track was the German Chancellor Angela Merkel, who
laid out a plan for a modified treaty, the "Reform Treaty", as well as a time line for
acceptance and ratification of it. The project, which had laid still for over 1½ year, resumed
with surprising speed, and the signing of the new treaty by the European heads of state was
determined to take place at the end of the following Portuguese presidency, on December 13th
in Lisbon, thus giving rise to the name "The Lisbon Treaty".
Angela Merkel is exemplary in her efficiency. She called upon the various governments to
identify exactly what clauses would cause the treaty to be set up for referendum, and made
sure to change or remove those clauses, thus removing the formal need for holding
referendums, except Ireland, where the constitution clearly would demand one, no matter
how extensively the treaty would be modified. This referendum is to take place in June 2008.
But why avoid these referendums at all? French president Sarkozy explained that succinctly:
France was just ahead of all the other countries in voting No. It would happen in all Member
States if they have a referendum. There is a cleavage between people and governments… A
referendum now would bring Europe into danger. There will be no Treaty if we had a
referendum in France, which would again be followed by a referendum in the UK.
(EUobserver, 14 November 2007)
There we have it: Referendums would kill the treaty. But this creates a problem of democratic
legitimacy. How can a significant international treaty, which even its creators assumed would
be killed by a public vote, be assumed to be democratically legitimate?
What is 'legitimacy'?
In order to discuss the legitimacy of the Lisbon Treaty, we need a workable definition of
'legitimacy'.
(from http://en.wikipedia.org/wiki/Legitimacy_(political_science) )
Legitimacy in political science, is the popular acceptance of a governing regime or law as an

authority. Whereas authority refers to a specific position in an established government, the
term legitimacy is used when describing a system of government itself—where "government
may be generalized to mean the wider "sphere of influence." According to Robert Dahl,
legitimacy is considered a basic condition for rule: without at least a minimal amount of
legitimacy, a government will lead to frequent deadlocks or collapse in the long run.
Max Weber defines three kinds of legitimacy, of which only the third kind is of relevance
here:
Rational/legal authority. Legitimacy based on the perception that a government's powers are
derived from set procedures, principles, and laws which are often complex and are written
down as part of the constitution. Example: representative democracy or bureaucrats.
Legitimacy is a very abstract concept, not easily pinned down by rules, details and
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technicalities. Yet, the perception of legitimacy is what makes or breaks regimes. The Soviet
Union, for example, was in the Helsinki agreements of 1975 granted legitimacy in its rule
over Eastern Europe, at the seemingly token prize of having to respect human rights.
Unexpectedly, human rights issues turned into a nightmare for the Soviet leaders, who saw
their legitimacy increasingly undermined on this issue, seeing its rule over Eastern Europe
evaporate 14 years later, and itself dissolved in 1991. Apart from the ethical problems of
extensively violating the human rights, the Soviet Union also bled legitimacy in a different
way:
It broke the rules it had signed up to, systematically. That erodes confidence in the ability of
the system to keep its promises. The failure to live up to given promises creates serious
problems with legitimacy.
The Lisbon Treaty asserts to have democratic legitimacy and points towards details, such as
the "Citizens' Initiative" to justify that. This initiative, which will be examined in detail later,
is created to grant citizens influence on the EU system apart from the elections to the
European Parliament.
The keyword here is 'grants'.
How can a system such as the European Union, which was created as a Community between
independent nation-states, now see itself as the institutions 'granting' permission to the
citizens to have some influence? 'Democracy' means 'rule by the people', and as such, it
should be the people that grants the European Union the right to direct certain matters.
Granting this right usually takes the form of referendums, which, if giving its approval,
endows the system with legitimacy.
Holding referendums grants legitimacy to the system. But promising to hold referendums,
then going back on that promise, is harmful to legitimacy. Worse yet is going back on granted
promises for reasons that turn out to be false. This constitutes a breach of confidence that can
be difficult or even impossible to heal. This paper will examine some of the aspects of the
Lisbon Treaty and the evaporated referendums.
Worse yet is disregarding the rules of elections. The rule given in advance of the referendums
on the Constitutional Treaty was that it would be abolished if even a single EU country
rejected it. Two did so, with solid results in fair referendums, yet the Treaty is being adopted
anyway.
Why do we need a new treaty?

President of the European Commission José Manuel Durão Barroso explains the reasons for
the treaty:
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/204&format=HTML&
aged=0&language=EN&guiLanguage=en
* efficiency, making the EU work better

* accountability, giving people a greater say over what "Brussels" can and can't do
* giving Europe a stronger voice in the wider world.
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Simple, actually. Nice and workable. Innocent bordering on benign.
Actually, there's one additional reason Barroso doesn't mention: The voting structure of the
current Nice Treaty accommodates only 27 countries. Thus for future expansion of the
European Union (Croatia is to become EU member number 28), either serious rule-bending is
needed, or a formal revision of the Nice Treaty. This is the technical reason for the urgency
of the process. It's a shame Barroso fails to mention it, as it clearly is the most urgent of all
reasons, as failure to address this problem would stall enlargements.
What does the Treaty accomplish?
An analysis by Prof. Anthony Coughlan (published at

http://www.brusselsjournal.com/node/2773) goes into detail of what the Lisbon Treaty
actually does.
Today the European Union leaders signed the Lisbon Treaty. This treaty gives the EU
the constitutional form of a state. These are the ten most important things the Lisbon
Treaty does:
1. It establishes a legally new European Union in the constitutional form of a

supranational European State.
2. It empowers this new European Union to act as a State vis-a-vis other States and its
own citizens.
3. It makes us all citizens of this new European Union.
4. To hide the enormity of the change, the same name – European Union – will be kept
while the Lisbon Treaty changes fundamentally the legal and constitutional nature of
the Union.
5. It creates a Union Parliament for the Union's new citizens.
6. It creates a Cabinet Government of the new Union.
7. It creates a new Union political President.
8. It creates a civil rights code for the new Union's citizens.
9. It makes national Parliaments subordinate to the new Union.
10. It gives the new Union self-empowerment powers.
What seemed natural and benign when explained by Barroso, is much more extensive when
viewed by an independent analyst, of which we unfortunately have preciously few. But
Coughland is sharp, and at the article in Brussels Journal he argues each of the above ten
points directly on the basis of the treaty text.
It is an extensive reformation of the European Union, transferring a larger number of

competences and capabilities to the Union than any treaty before it, including the Nice
Treaty.
The purpose of this paper is not to go into the contents of the Lisbon Treaty as such, but the
reader is encouraged to do so himself. Some highlights are in order, though. First, let us
return to the points of Barroso:
1) Efficiency
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The EU system is large, and decisions can be hard to create consensus about. The Turkish
accession process was an example. Larger member states had decided that it was a Good and
Proper Idea, and put pressure on other smaller member states to have the same opinion. This
created some very painful and embarrassing situations, as some states, like Austria, Greece
and Cyprus, genuinely were against the project. After a painful series of delays and technical
fixes to salvage the process, 'unity' was achieved.
But the stubbornness of some member states was a problem and an embarrassment, and for
the sake of efficiency, to avoid such painful situations, the decision process has to be
streamlined. 'Unity' is the code word for that, and the new decision-making rules makes it
easier for the Union to achieve Unity on various issues, reducing significantly the time and
effort needed to overcome objects by minorities among the member states.
Or, in the words of Barroso:

"We will have more qualified majority voting, which should help to speed up
decisionmaking."
2) Accountability
Barroso on the superstate:

"I reject the idea that "Brussels" is some kind of superstate, taking decisions behind closed
doors, very far away from "the people"."
This is an interesting wording. Superficially read, it is a rejection of the notion of EU being a

superstate, but the next part of that sentence qualifies that significantly, he merely rejects the
notion that it works far away from "the people".
Accountability is a big issue.
Even though some 80 % of our legislation comes out of Brussels, it is hardly given any
mention in the press, and our governments simply approve what is given them and moves on.
There is hardly any opening for citizens to be part of this decision-making process.
Influencing decisions the European Union is a complex task best left to professional
lobbyists, who know how to do it and have time to invest in doing it in the proper way. The
usual instruments of democratic influence have little effect towards a system of this
complexity, with such an array of civil servants to take care of the formal correctness of
every possible detail in any piece of legislation.
In a way, it is also a vicious circle of declining influence. The media perceives little interest
in EU matters, and the citizens perceive little opportunity for taking influence. This drives
media interest down even further, and thus reduces the natural open debate that influences
politicians in democratic systems.
3) Giving the EU a stronger voice in the wider world
On surface, it sounds attractive to give EU 'a stronger voice', and it is an obvious reference to
the quest for 'Unity' in EU decisions, related to the 'Efficiency' mentioned above. Curiously, it
seems that suppressing dissenting views among the member states is seen as a source of
strength, not a democratic problem.
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But another problem of this approach is that it voids the need for member states to act on an
international level. It simply takes over significant parts of the purpose of a normal nation-
state, under the assumption that it will work better with 500 million citizens behind any
foreign policy effort than having 27+ member states each working things their way. An
unmentioned problem with this is "What about mistakes?" If the European Union makes
foreign policy mistakes, they will be on a much grander scale than if some individual state
makes a stupid move.
But a central problem, however, really is that the Union takes over responsibilities that until
now were solidly with the member states. The foreign policy record of the Union, as we have
seen in the Balkans and in the conflict over the Muhammad cartoons, is far from impressive.
We really need to involve the European citizens in a discussion and a vote over this issue.
Without widespread public understanding and approval of the implications of this, there is a
'legitimacy gap' between EU and its citizens here.
Related, the classical constitutions were designed to protect citizens against abuse of power
by the institutions of power. Centuries ago, when kings and warlords would routinely violate
the rights of the citizens in hours of 'need', constitutions were a collective defense against
such abuses. The rejected European Constitution, now the Lisbon Treaty, is not any such
defense.
The Muhammad crisis deserves a special mention. It is stated in the current EU treaties that
solidarity between member countries is 'automatic' and need not even be requested. Yet,
when Denmark found itself in the worst foreign policy crisis since WWII, the matter was
initially dismissed as 'a national matter', neglecting the stated obligation for solidarity, and at
the same time demonstrate a disappointing lack of interest in defending the civil liberties of
the EU citizens.
The ten points by Coughland show a similar trend that warrants debate and decisions
empowered by the European public. There is a systematic tendency, as exemplified by the
"stronger voice" point above, for all of the changes in the Lisbon Treaty to take over
responsibility from the nation-state and place it with the European Union instead. Some of
these are subtle, like making the 'Union Parliament' direct representatives of the citizens
(instead of their nation-states), some are less so like making the Union a legal entity or
establishing citizenship directly under the union.
We are reaching a point where the individual member states of the European Union are only
nominally independent. Should any of the member states have the audacity to actually use
this independence, the EU system is sure to take note and interfere. The recent crisis in
Belgium, which went without government for over ½ year, shows how this can take place.
The Citizens' Initiative

The treaty does concern itself explicitly with improving democratic legitimacy on one point,
the 'Citizens Initiative'. As formulated by an Irish MEP:
"Participative democracy is acknowledged through social dialogue and the new 'Citizens'
Initiative' which obliges the Commission to consider citizens’ proposals." Proinsias De Rossa
(Labour, Dublin)
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Or, taken directly from the treaty text:

4. Not less than one million citizens who are nationals of a significant number of Member
States may take the initiative of inviting the Commission, within the framework of its powers,
to submit any appropriate proposal on matters where citizens consider that a legal act of the
Union is required for the purpose of implementing the Treaties.
This is interesting. The EU system acknowledges that some sort of citizen influence should
be possible. Actually, that's quite polite, as they did not need to create it this way. But playing
the Devil's advocate, I'll present some objections:
1) Since when was influence on our rulers a right bestowed upon us from said rulers? It
seems the assumption is that politicians and civil servants in EU, once in office, have the
right to do whatever they find opportune. The right of the citizens to have a say has become
an explicit exception, not a basic democratic feature, in the treaty.
2) Any citizens' initiative outside the scope of this clause, such as special interest groups, can
be dismissed offhand for not using the required framework for requesting a say on matters.
3) Any citizens' initiative carrying less than a million signatures can be dismissed offhand.
This makes the clause difficult to use in complex issues, where collecting a million signatures
is no trivial matter. This will help avert citizens' objections in complex matters.
4) Even if a million signatures are collected, what is possible is merely an 'invitation' to the
Commission to submit a proposal on the issue at hand. The Commission has the right to deny
such an invitation.
5) Even if the Commission accepts the invitation, it still has the practical possibility of
creating a proposal so awkward it will be destroyed during processing in the EU system.
6) By way of example, the first such initiative that reached million signatures was the
OneSeat Campaign, seeking the fairly simple objective of canceling the dual-seat system of
the European Parliament, a system that wastes € 200 million a year. At 600,000 signatures the
initiative was dismissed at the EU summit of June 2006. And in spite of reaching a million
signatures well in time for being considered in the Lisbon Treaty, it wasn't. Instead, it will
remain an example of EU disrespect for its citizens.
Summing up, the "Citizens initiative" in the Lisbon treaty pays only lip service to the concept
of democratic legitimacy. By concept, wording and example, it is unworkable. It even
aggravates matters by barring citizens from using other approaches to bring their influence to
the system.
One could say that the "Citizens initiative" is a superficial attempt to fix a fundamental
problem:
The European Union was never designed to be a democratic system. This is not as bad as it
may seem, but warrants some discussion.
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The European Union was never designed to be a

democratic system.
It wasn't. It was designed to be a community between democratic systems, not to be one
itself. Thus the original name "European Community". At the Danish referendum in 1986,
concerns were raised that the Community might at some point evolve into a Union. Danish
prime minister Poul Schlüter utterly rejected the notion by the statement "Unionen er
stendød". (the Union is stone dead). Unfortunately, he lied. He might not have known better
at that point, but what he said was, as we all know by now, not true.
Comparing the European Union to the United States of America bears relevance. The United
States has a federal system, which might have its flaws, but at least was designed from the
ground up with the intent and purpose of being a transparent, democratic system with due
legitimacy bestowed upon it for this purpose.
The European Union, while taking on a similar Separation of powers, a term coined by
French political Enlightenment thinker Baron de
appearance, has grown from a different kind of Montesquieu, is a model for the governance of
system into the current political union. Its institutions democratic states. The model is also known as Trias
do not operate under the 'Separation of powers' Politica.
paradigm. Its institutions were designed for different
The model was first developed by the
purposes and with a different structure, but has the
ancient Greeks in the constitutions that
appearance, not least by the use of the word governed their city-states; however, it first came into
'parliament', to look like the governmental bodies of widespread use by the Roman Republic. It was
nation-states. outlined in the Constitution of the Roman Republic.
Under this model, the state is divided into

The European Commission, in particular, has
branches or estates, and each estate of the state
extensive legislative and executive power which is has separate and independent powers and areas of
not easily regulated. The Parliament has in recent responsibility. The normal division of estates is into
years exercised increasing power towards the the Executive, the Legislative, and the Judicial.
Commission, but the Commission remains the
undisputed power hub of the European Union, and
holds more power than an average government would
in a country. The Commission has a staff of roughly 25,000 civil servants to support its work.
The Commission, currently having a Commissioner from each country, has the appearance of
being a composite body with a representative from each member state. However, the
Commissioners pledge loyalty to the Union, not to the state he or she is appointed by.
It is not trivial to oust a Commission or individual members, in the way a parliament would
get rid of a government it has lost confidence in. The Commission is appointed for a five year
period and in practice only outright corruption, crime etc. Only one Commission (Santer) has
resigned before the expiration of its period. Citizens of the European Union are not able to
formally hold the Commission responsible for any perceived failures of its work.
The European Court of Justice is known to pass some curious judgments, which quite
systematically expand the scope of the European Union. Technically, it has as its purpose to
ensure proper implementation of the directives of the Union, but in practice it tends to
interpret this as widely as possible. One basic function of the European Community is to
remove technical barriers to trade. A nice and noble purpose we can generally agree on. Note
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the word 'technical', however. This would limit the scope to that of removing only barriers to
trade that have as their main purpose that of keeping competition from other countries out.
In the interpretation of the European Court of Justice, any regulation that causes any
hindrance to free trade of any kind, including barriers that constitute genuine differences in
the way individual countries prefer to be organized. Lately, the Danish system for regulating
wages on the labor market has come under attack from the Court, disregarding the fact that
the system was never, ever, intended to be a technical barrier against competition from other
countries.
While the above might sound problematic, it poses only a problem with regards to democratic
legitimacy if the workings of the system have not been properly explained to or approved by,
the European citizens. That 'explanation and approving' takes place in the process
surrounding a referendum. The lack of referendums, even disregarding the way the
referendums were canceled, by itself constitutes a problem of legitimacy of the European
Union.
An interpretation of this is that the original European Community, understood as an

organization for cooperation between nation-states, does not have a problem with democratic
legitimacy. The basic structure has been approved by European governments and the citizens,
and there is no need for this system to be democratic per se. The problem arises when the
Community evolves into a Union, where the rules for transparency and democratic nature of
its institutions become much stricter. For obvious reasons, for an unchecked governmental
system runs a serious risk of evolving into a despotic direction.
From the rejection of the Constitution to the ratification of

Lisbon
The rejection of the Constitution caused a remarkably long period of inactivity, roughly 1½
year. Opponents of the Treaty considered it to be rejected, proponents looked for ways to
preserve the core of it, while 'cherry-picking' and 'mini-treaties were mentioned as other
possible approaches.
The exact approach of Angela Merkel was not made “Public opinion will be led to adopt, without
knowing it, the proposals that we dare not present
quite clear to the public, except that the goal was a to them directly … All the earlier proposals will be
'mini-treaty'. The method was to rephrase the in the new text, but will be hidden and disguised in
Constitution Treaty into a 'Reform Treaty', thus some way.”
- V.Giscard D’Estaing, Le Monde, 14 June 2007,
implying that: Sunday Telegraph, 1 July 2007
1) It was a different treaty.

2) It was to reform the system.
3) It was no longer a constitution.
While the Constitution Treaty was written as a self- “The aim of the Constitutional Treaty was
to be more readable; the aim of this treaty
containing document, the Reform Treaty was a voluminous is to be unreadable … The Constitution
collection of corrections to the preceding two treaties still in aimed to be clear, whereas this treaty had
force. This was intentional, but any tool employed to be unclear. It is a success.”
- Karel de Gucht, Belgian Foreign Minister,
knowingly to hinder public debate is a violation of good Flandreinfo, 23 June 2007
democratic style. It is not technically illegal, of course, and
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the process went unchallenged. Surprisingly fast, too, but it turned out that this had a good
reason:
The work was merely technical, not of substance, as the Constitution Treaty was being
rewritten, not substantially modified, except in specific and limited areas.
The changes were of two classes: Technical changes to avoid triggering referendums, and
symbolic changes to avoid the perception that it was a constitution for a super-state. Items
such as making the 12-star blue flag the official flag of the union, or making the “Ode to Joy”
the official hymn of the Union, were removed. These changes were obviously 'symbolic' in
more than one sense of the word.
When the heads of state signed the Lisbon Treaty in Lisbon (symbolically wasting a neat
amount of jet fuel to get there), it was an unreadable edition. No 'consolidated' version
existed, and only experts with ample time on their hands could truly read the Treaty. In
practice, only civil servants employed by the Union or the governments had a genuine chance
to assess the content before it was approved by the heads of state.
Those who had the opportunity to examine the contents rejoiced: Nothing of importance was
gone. It was all there, somewhere. Some items had been hidden into technicalities or were to
be adjusted by other means later, but everything in the original Constitution Treaty was
present, in one way or another. Meaning the Treaty was exactly the one that had been rejected
by the voters in 2005.
If the contents is functionally identical, what then became of the 'mini' treaty we had been
lead to expect and which French president Sarkozy had explicitly demanded?
Well, including the extra technicalities and adjustments, the Lisbon Treaty ended up with
7229 more words than the rejected Constitution Treaty. In order to keep the promise of a
'mini' treaty, the font size was reduced in the final edition (not exactly an advantage for
readability either), and the resulting treaty ended up with a page count 55 below the
Constitution Treaty. Voilá, 'mini'! There is a less polite word for solutions like that, of course:
Deceit.
“The good thing about not calling
What remained at this point was the feat of avoiding the dreaded it a Constitution is that no one
referendums. This, one must say, went surprisingly smooth. Legal can ask for a referendum on it.”
- Giuliano Amato, speech at
experts in the various countries saw that the points that would London School of Economics, 21
explicitly trigger referendums had been changed, as requested by February 2007
Angela Merkel, and quickly absolved the various governments of
their promises or duties to hold referendums. Only in Ireland, where
the constitution is crystal clear, could the risk not be avoided. It will be held in June.
While much of the preparation for the resurrection of the Constitution Treaty had taken place
in closed meetings coordinated by German Chancellor Angela Merkel, what remains most
amazing about this process is the open audacity of circumventing given promises and obvious
expectations. Mainstream politicians in all European countries supported this project, few
saw reason to question the rather obvious integrity problems of the approach. And all agreed
that referendums were to be avoided at any cost.
The process, while technically legal, exposed an unnerving willingness by our politicians to
bend or break the rules they had said they would adhere to. What will be next – what other
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rules will they consider 'too restrictive' and find a justification to circumvent? Legitimacy of
our governments depends on sincere loyalty to our laws and constitution, which is exactly
what we have seen being talked away in the Lisbon process.
The Danish situation

In Denmark, we were supposed to vote on the Constitutional Treaty on September 27 2005,
but that was canceled after the referendums in France and Netherlands. As an aside, the
canceled dates was three days before the famous Muhammad cartons were published in
Jyllands-Posten. If Denmark had held a EU referendum in that period, the Muhammad
cartoons might never have been created or published).. The background for this vote is article
20 of our constitution, which reads (my translation):
§ 20 Stk. 1.
Capabilities, which in accordance with this constitution are assigned to the institutions of the
state, can, by law and in specific measure be transferred to institutions of international
coordination, established by mutual consent with other states to further international rule of
law and cooperation.
Stk. 2.
[In brief: if such laws are not passed with a majority of 5/6 or more, a referendum is needed.]
Now, who then gets to decide if the Lisbon Treaty requires a referendum according to this
article? The current government does. And since the Lisbon Treaty has been changed
explicitly on the 9 issues that would without doubt trigger a referendum, the government now
asserts that no referendum is needed.
This is a fallacy on several points:

”The Treaty of Lisbon is
1) It is assumed that these nine points were the only elements of the the same as the rejected
Constitution that would require a referendum. Implicitly, it is then constitution. Only the
assumed that no other elements, nor the contents of the Constitution format has been changed
Treaty at large, would trigger a referendum. Focus has been only on the to avoid referendums.”
nine items.
Valéry Giscard d’Estaing,
former French President
2) Several of the nine items had only technical fixes, where they will be and President of the
moved out of the Treaty itself and into non-treaty technical changes to Constitutional Convention,
be published and implemented in different ways. 27 October 2007
3) It is assumed that the referendum was needed only for technical

reasons, not to provide it with democratic legitimacy.
4) The wide public desire for holding the referendum, and for having the associated public
discussion about the future and the goals of the European Union, is being ignored.
Further, Denmark has a tradition for holding referendums even when not technically needed.
The treaty for the Inner Market was sent to a referendum in 1986 (and approved), even
though it had been made clear that it was not a technical requirement under §20. Why would
one undertake the quite large effort of a referendum over a treaty that could be passed without
one? For two reasons, at least:
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1) To involve the public in the process. This is both an opportunity to relate to the public the
goals of the European Union and the specifics of the treaty in question, as well as an
opportunity to get feedback from public opinion about the desired future of the Union.
2) To make it clear that the treaty voted on has a solid democratic legitimacy.
Thus, failing to hold a referendum that was both promised, scheduled, technically required
and a popular demand is a serious failure with regards to the democratic legitimacy of the
Lisbon Treaty.
A secondary way to obtain a referendum in Denmark is to have 1/3 of the members (60 total)
of parliament request one. At the recent general elections in Denmark, we came very close to
this number, and if one counted the singular MP's who had spoken for a referendum, the total
was 69 members, well over the 60 needed to trigger a referendum. However, the individuals
who spoke against their party lines on the issue have since changed their views, and it was
not possible to gather the required 60 votes in parliament. The Lisbon Treaty has recently
been ratified in Denmark without referendum.
It is worth noting that article 20 permits only 'specific measures' of authority to be

transferred, and only to institutions that work on an inter-national level, not a supra-national
level. It is, in fact, highly dubious to assert that the Lisbon Treaty could have been legally
approved according to the Danish constitution - even in case of approval by a referendum!
This clause in our constitution has been bent significantly, and given the extensive transfer of
power to a supra-national institution that the Lisbon Treaty constitutes, the clause has now
effectively rendered void:
For future treaties, the Danish government can now, solidly, argue that the new treaty is less
extensive than Lisbon, and thus not in need of a referendum. Also, the Lisbon Treaty enables
the European Union to expand its areas of responsibility without changing the treaty in the
first place. We should not expect any further referendums in Denmark on EU matters, ever.
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Is there a public demand for referendums on new EU

treaties?
Opinion polls by the British think tank Open Europe, on the question:
”If a new treaty is drawn up which gives more powers to the EU, do you think that people
should be given a say on this in a referendum or citizen consultation or do you think that it
should just be up to the national parliament to ratify this treaty?”
http://www.openeurope.org.uk/media%2Dcentre/pressrelease.aspx?pressreleaseid=31
One must say the conclusion is abundantly clear. All EU citizens in aggregate have a 75 %
majority for holding referendums on such treaties, only 20 % are against. Remarkably, the
large nations United Kingdom and France have an even higher ratio of citizens requesting a
referendum. Yet, in both of these countries their governments have denied them holding one.
The fear of another 'No' seems strong.
The question then lingers: What happens if the EU treaties are no longer sent to referendums,
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in spite of a wide public desire to the opposite? The treaties are still legal, but the democratic
legitimacy is set in doubt. A likely result is public apathy and indifference towards the
system, as public participation in establishing and using the system is discouraged and thus
becomes obviously unrewarding.
Conclusion:
In abandoning the process of using referendums to approve European Union treaties, the
European Union has cut itself off from a significant source of democratic legitimacy. That the
treaties are still legally and technically correct does not alter the deceitful process used to
adopt the Lisbon Treaty, nor does it undo the many misleading details or outright lies
involved in it. In doing so, the Union has employed in a heavy process of self-justification
and rejection of criticism, where the proper response would have been to use the rejections as
an impetus to a radical reform of the system, a reform now unlikely to ever take place.
It remains to be seen if EU, its politicians and civil servants, will find courage to take the
concerns of its citizens seriously, find ways to regain democratic legitimacy or if they will
continue down the path of self-justification and defense of a system that increasingly inspires
apathy instead of democratic participation.
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References:
Public sources are the basis for this paper. There is no scarcity of materials available, also
from independent sources. Listed below are some of the most important.
The official EU reference site for the Lisbon Treaty:

http://europa.eu/lisbon_treaty/index_en.htm
The treaty texts, in all official EU languages:

http://europa.eu/lisbon_treaty/full_text/index_en.htm
The reasons for the treaty, according to Barroso:

http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/204&format=HTML&
aged=0&language=EN&guiLanguage=en
European Court of Justice:

http://curia.europa.eu/
European Parliament:
http://www.europarl.europa.eu/
European Commission:
http://ec.europa.eu/index_en.htm
Jens-Peter Bonde of the Danish EU-sceptics Junibevægelsen is a prolific writer and has
published many books on EU matters, which generally are available to download for free.
Consolidated, reader friendly Lisbon Treaty:

http://www.bonde.com/index.php/bonde_uk/article/reader_friendly_edition_of_the_lisbon_tr
eaty
This litle book deserves particular recommendation. It is written in a straight language for the
average citizen, and it lists up the amazing stack of trickery employed to resurrect the
Constitution Treaty:
From Constitution to Lisbon Treaty, an analysis of the Treaty and the process:
http://www.j.dk/exp/images/bondes/From_EU_Constitution_to_Lisbon_Treaty_april_2008.p
df
A legal analysis of the Treaty by lawyer Klaus Heeger:

http://www.j.dk/exp/images/bondes/13.03.08_COMPARISON_OF_THE_2007_LISBON_T
REATY.pdf
OpenEurope has authored this guide to the consequences of the Constitution/Lisbon treaty:
http://www.openeurope.org.uk/research/guide.pdf
A comparison of the Constitution and the Lisbon Treaties show them to be substantially
equal:
http://www.openeurope.org.uk/research/comparative.pdf
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Opionion polls show that all citizens in all European countries desire referendums:
http://www.openeurope.org.uk/media-centre/pressrelease.aspx?pressreleaseid=31
Wikipedia has a very usable collection of material concerning the constitution, with an
overview here:
http://en.wikipedia.org/wiki/Category:European_Constitution
While Wikipedia for several purposes is a problematic source, it is usable for factual details
as these.
http://en.wikipedia.org/wiki/Legitimacy_(political_science)
http://en.wikipedia.org/wiki/Separation_of_powers
Brussels Journal published several quite sharp articles about the Treaty:
Commission Running Scared of the People: Good

http://www.brusselsjournal.com/node/2184
Not a Comma Has Changed!

These Boots are Gonna Walk All Over You (An analysis by Prof. Anthony Coughlan)
How 'Mini' is the EU's "Mini Treay"?

Ever Closer Union: An Introduction to European Integration:

http://www.rienner.com/dinaneve.pdf
There exists an Internet page for 'Citizens Initiatives':

http://www.citizens-initiative.eu/
Interestingly, it is empty.
Statements by Irish MEP's on the treaty:

http://www.europarl.ie/lisbontreaty_meps.html
egoeccentric's Idiots Guide To The Lisbon Treaty

http://egoeccentric.blogspot.com/2008/04/egoeccentrics-idiots-guide-to-lisbon.html
No to the Lisbon Treaty Irish Arguments against the Lisbon Treaty ... The repeated referendum on the Lisbon
Treaty is illegal, because a plebiscite ... third country
https://www.kaschachtschneider.de/wp-content/uploads/2017/10/ireland_short.pdf
A COMPARATIVE TABLE OF THE CURRENT EC AND EU TREATIES AS ... number used in the text of the
Lisbon Treaty. Article numbers indicated by an asterisk are those to which the Protocol on the position of the
United Kingdom and Ireland in respect of the Area
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228835/7311.p
df
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Citizenship Referendum: Interpretative Declaration by the Irish and

British Governments regarding the British Irish Agreement
20 April 2004
http://eudo-citizenship.eu/NationalDB/docs/IRE%20Citizenship%20Referendum%20Interpretation.pdf
Referendum 48-50 Repeal of Constitution of Saorstát ... become and be a citizen of Ireland. 2° The
future acquisition and loss of Irish nationality
http://www.constitution.org/cons/ireland/constitution_ireland-en.pdf
Ireland Ireland 1937 (rev. 2012) Page 2 ... THE REFERENDUM, citizen or entitled to be an Irish citizen is not
2012
https://www.constituteproject.org/constitution/Ireland_2012.pdf?lang=en
The EU’s Democratic Deficit and Repeated Referendums in Ireland
EU's Democratic Deficit and Repeated Referendums in Ireland Created Date: 4/20/2017
http://connorjerzak.com/wp-content/uploads/2016/08/jerzak-repeated-referendum.pdf
EU Second Referendums and Ignoring Referendums – The EU Democratic Deficit. Last update
September 18, 2018 ... The two second referendums in Ireland followed ...
Summary:
The countries of the EU have often staged referendums about the terms of membership. About
20% of all of these referendums have gone against the EU. (see Wikipedia: EU Referendums).
Second referendums are frequent in the EU if the decision on the first goes against EU policy.
There have been nine major referendums on substantial membership issues that went against
the EU. Three were ignored and four resulted in second referendums. Three of the four
referendums were overturned on the second referendum.The two second referendums in Ireland
followed intense periods of "project fear" propaganda by the Irish government. The Irish were
promised neutrality and permanent commissioners to change their vote but have now joined the
EU Defence Pact and commissioners are appointed on a rotating
The countries of the EU have often staged referendums about the terms
of membership. About 20% of all of these referendums have gone
against the EU. (see Wikipedia: EU Referendums).
Second referendums are frequent in the EU if the decision on the first
goes against EU policy. There have been nine major referendums on
substantial membership issues that went against the EU. Three were
ignored and four resulted in second referendums. Three of the four
referendums were overturned on the second referendum.
The two second referendums in Ireland followed intense periods of
"project fear" propaganda by the Irish government. The Irish were
promised neutrality and permanent commissioners to change their vote
but have now joined the EU Defence Pact and commissioners are
appointed on a rotating basis. The Danish referendum on Maastricht was
overturned on a second referendum because opt outs were promised.
Since Lisbon (2009) these opt outs are in serious jeopardy due to the
new flexibility of EU decision making.
The other approach taken to referendums that antagonise the EU is just
to ignore them. The Greek bailout referendum was ignored by the Greek
Government. The French and Dutch rejected the EU constitution which
was then quietly dropped by the EU to be replaced by the Lisbon Treaty
in 2009. The Lisbon Treaty reads word for word the same as the
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Constitution in many places but contains Articles that can only be forced
on Member States by a unanimous vote in the EU Council (See flexibility
of EU decision making). Lisbon is a Constitution that can be "sneaked
in" in stages.
The EU has been so successful at bullying populations into line that they
now call democracy "populism". Populism can sometimes be overcome
with scaremongering and, as can be seen above, lies, by the EU and
member states.
4)
5) Denmark — The Danish Maastricht Treaty referendum,
1992, 2 June 1992, 50.7% against, turnout 83.1%
In Denmark, two referendums were held before the treaty of Maastricht
passed. The first one rejected the treaty.
1.
2. Denmark — The Danish Maastricht Treaty referendum, 1993, 18
May 1993, 56.7% in favour, turnout 86.5%
After the defeat of the treaty in the first refererendum, Denmark
negotiated and received four opt-outs from portions of the treaty:
Economic and Monetary Union, Union Citizenship, Justice and Home
Affairs, and Common Defence. The second referendum approved the
treaty amended with the opt-outs.
Norway — Norwegian European Communities membership

referendum, 1972, 25 September 1972, 53.5% against, turnout
79%
Following the rejection by the Norwegian electorate, Norway did not join
Norway — Norwegian European Union membership referendum,

1994, 28 November 1994, 52.2% against, turnout 89.0%
For the second time, Norwegian voters rejected the Norwegian
government's proposal to join the EU.
Ireland — a referendum to approve the Twenty-eighth

Amendment of the Constitution Bill, 2008 (Ireland), 12 June 2008,
53.2% against, turnout 53.1%
In 2008, Irish voters rejected the Treaty of Lisbon.
Ireland — a referendum to approve the Twenty-eighth

Amendment of the Constitution of Ireland, 2 October 2009, 67.1%
in favour, turnout 59.0%
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After the first vote by Ireland on the Lisbon Treaty, the European Council
and the Irish Government released separate documents, referred to as
the "Irish Guarantees", that stated the other member countries would not
use the possibility in the Treaty to diminish the number of permanent
commissioners in favour of a rotating system with fewer commissioners,
and not threaten Ireland's military neutrality and rules on abortion.[1][2]
With these assurances, the Irish approved the unchanged Lisbon Treaty
in a second referendum. The EU now uses rotating commissioners and
Ireland is part of PESCO, the EU defence forces pact.
Ireland — a referendum to approve the Twenty-fourth Amendment

of the Constitution Bill, 2001 (Ireland), 7 June 2001, 53.9%
against, turnout 34.8%
In 2001, Irish voters rejected the Treaty of Nice, in the so-called "Nice I
referendum".
Ireland — a referendum to approve the Twenty-sixth Amendment

of the Constitution of Ireland, 19 October 2002, 62.9% in favour,
turnout 49.5%
In the so-called "Nice II referendum" in 2002, statements on Ireland not
having to join a common defence policy and affirming the right to decide
on enhanced cooperation in the national parliament were stressed in a
special document, resulting in a favourable vote. Ireland is now part of
PESCO, the new EU defence pact.
Referendums that have simply been ignored:
Greece — Greek bailout referendum, 2015, 5 July 2015, 61.3%

against, turnout 62.5%
A referendum on the bailout conditions in the Greek government-debt
crisis. A majority of the voters rejected the bailout conditions. However,
shortly afterwards the government accepted a bailout with even harsher
conditions than the ones rejected by the voters.
France — French European Constitution referendum, 2005, 29

May 2005, 54.7% against, turnout 69.4%
Netherlands — Dutch European Constitution referendum, 2005, 1

June 2005, 61.5% against, turnout 63.3%
The Lisbon Treaty allows the EU Council to introduce the European
Constitution in stages without Treaty Change - see Flexibility in EU
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Decision Making. This was why the UK Government happily promised

the UK a referendum on any further Treaty change.
Referendums where second referendums have not been held:
Denmark — Danish euro referendum, 2000, 28 September 2000,

Sweden — Swedish euro referendum, 2003, 14 September 2003,

Greenland
Greenland — Greenlandic European Communities

membership referendum, 1982, 23 February 1982, 53.0% against
https://european.economicblogs.org/political-thoughts/2018/eu-second-referendums-ignoring-referendums-eu-
democratic-deficit
Flexibility in EU decision-making: passerelle clauses, brake clauses and accelerator clauses
Go to the summaries’ table of contents
Flexibility in EU decision-making: passerelle clauses, brake

clauses and accelerator clauses
SUMMARY OF:
Article 48 of the Treaty on European Union
INTRODUCTION
The Treaty of Lisbon extends the ordinary legislative procedure and the system of qualified majority voting to a
large number of policy areas. The objective is to contribute towards EU integration by rendering decision-
making more efficient. In the ordinary legislative procedure, EU countries do not have a right of veto and there
are more ways of reaching an agreement.
However, EU countries are not always willing to give up part of their power of opposition in certain policy
areas. These areas are those which are deemed to be the most ‘sensitive’, in which the importance of national
sovereignty is significant, including foreign policy, immigration and justice. In these areas, the special
legislative procedure and the system of voting by unanimity are usually employed.
The Treaty of Lisbon introduces several types of institutional clauses offering institutional mechanisms that are
different but pursue a common objective. This is in order to facilitate EU integration in ‘sensitive’ areas if EU
countries so wish.
Thus, the Treaty of Lisbon introduces 3 types of clause:
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• ‘passerelle’ clauses,
• ‘brake’ clauses,
• ‘accelerator’ clauses.
PASSERELLE CLAUSES
Passerelle clauses allow derogation from the legislative procedures initially provided for by the treaties.
Specifically, and under certain conditions, they make it possible:
• to switch from the special legislative procedure to the ordinary legislative procedure in order to
adopt an act in a given policy area;
• to switch from voting by unanimity to qualified majority voting in a given policy area.
Activating a passerelle clause still depends on a decision being adopted unanimously by the Council or by
the European Council. Thus, in every case, all EU countries must be in agreement before such a clause may be
activated.
Furthermore, Article 48 of the Treaty on European Union introduces a general passerelle clause applicable to all
European policies (see summary on ‘revisions to the treaties’. In addition, there are 6 other passerelle clauses
specific to certain European policies, presenting certain procedural particularities (see summary on ‘legislative
procedures’).
BRAKE CLAUSES
Brake clauses concern 3 areas:
• the measures for coordinating social security systems for migrant workers (Article 48 of the
Treaty on the Functioning of the EU (TFEU));
• judicial cooperation in criminal matters (Article 82 of the TFEU);
• the establishment of common rules for certain criminal offences (Article 83 of the TFEU).
Brake clauses were created to enable the ordinary legislative procedure to be applied to these 3 policy areas. The
ordinary legislative procedure is restrained by a braking mechanism: an EU country may submit an appeal to the
European Council if it considers that the fundamental principles of its social security system or its criminal
justice system are threatened by the draft legislation being adopted. In this case, the procedure is suspended and
the European Council may:
• either send the draft back to the Council which shall continue with the procedure, taking into
account the observations made; or
• stop the procedure permanently and request a new proposal from the European Commission, if
appropriate.
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Therefore, the importance of brake clauses lies not only in the mechanism they propose, but also in the fact that
they enable the ordinary legislative procedure to be extended to the policies concerned. The introduction of this
mechanism into the decision-making process has convinced the most resistant of EU countries to apply the
ordinary legislative procedure to certain policies, where they had previously applied the rule of voting by
unanimity.
ACCELERATOR CLAUSES
Accelerator clauses ‘accelerate’ the integration between certain EU countries by facilitating the establishment
of enhanced cooperation in certain areas.
These clauses allow derogation from the engagement procedure for enhanced cooperation. Thus, as a result of
these clauses, an enhanced cooperation is considered to be formed once it includes at least 9 EU countries. The
Council, the Parliament and the Commission are therefore simply informed of the participating countries’ desire
to establish an enhanced cooperation.
These clauses concern 4 areas:
• judicial cooperation in criminal matters (Article 82 of the TFEU);
• the establishment of common rules for certain criminal offences (Article 83 of the TFEU);
• the creation of a European Public Prosecutor’s Office (Article 86 of the TFEU);
• police cooperation (Article 87 of the TFEU).
It is worth noting that the accelerator clauses concerning cooperation and criminal offences directly result from
the activation of the existing brake clauses in these 2 areas. When that happens and the legislative procedure is
therefore stopped, countries may turn to the accelerator clause then continue and conclude the legislative
procedure between them, under the framework of enhanced cooperation.
MAIN ACTS
Article 48 of the Treaty on European Union

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=LEGISSUM:ai0019&from=EN
Treaty of Maastricht on European Union
SUMMARY OF:
The Treaty on European Union
WHAT IS THE AIM OF THE TREATY?
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• Maastricht is an ambitious treaty. It creates the European Union. This encompasses 3 separate
strands (so-called pillars):
• the European Communities,
• a common foreign and security policy, and
• cooperation between EU governments on justice and home affairs.
• Among its most prominent innovations, the treaty:
• lays the foundations for economic and monetary union, the single currency (the
euro) and the criteria for its use;
• provides the legal basis for 6 new EU common policies;
• strengthens the powers of the European Parliament; and
• introduces the concept of European citizenship.
KEY POINTS
European Communities (1st pillar)
This groups the traditional activities, working and decision-making procedures of the 3 original EU
organisations:
• European Economic Community,
• European Coal and Steel Community,
• Euratom.
Common foreign and security policy (2nd pillar)
This aims to:
• safeguard the EU’s common values, fundamental interests and independence;
• strengthen the security of the EU and its member countries;
• preserve peace and international security in line with United Nations’ principles;
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• promote international cooperation;
• develop and consolidate democracy and the rule of law, and respect for human rights and
fundamental freedoms.
Cooperation on justice and home affairs (3rd pillar)
This aims to provide the public with a high level of safety by:
• establishing rules and controls for the EU’s external borders;
• fighting against terrorism, organised crime, drug trafficking and international fraud;
• organising criminal and civil judicial cooperation;
• creating a European Police Office (Europol) for information exchange between national forces;
• controlling illegal immigration;
• developing a common asylum policy.
Economic and monetary union
EU countries must:
• coordinate their economic policies;
• provide multilateral surveillance of this coordination;
• respect financial and budgetary discipline.
Common currency (euro)
This:
• is introduced in 3 stages:
• liberalisation of capital movements (from 1 January 1990);
• convergence of national economic policies (from 1 January 1994);
• creation of a single currency and a European Central Bank (from 1 January 1999
at the latest);
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• sets out criteria on inflation, levels of public debt, interest rates and exchange rates countries
must meet before adopting the euro;
• provides an opt out for the UK from the 3rd stage and subjects Danish participation to a national
referendum.
New policies
The EU is given responsiblity for:
• trans-European networks (TEN);
• industrial policy;
• consumer protection;
• education and vocational training;
• youth issues;
• culture.
Social protocol
• This extends EU responsibility to:
• promote employment;
• improve living and working conditions;
• provide adequate social protection;
• conduct a social dialogue;
• develop human resources to ensure a high and sustainable level of employment;
• integrate people excluded from the labour market.
• The UK has an opt out from the social protocol.
European citizenship
This gives every national of an EU country the right to:
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• travel and live freely anywhere in the EU;
• vote and stand as a candidate in European and local elections in the country in which they live;
• diplomatic assistance and protection by other member countries’ embassies and consulates;
• petition the European Parliament and address any complaints of EU administrative malpractice to
the European Ombudsman.
Institutional changes
These include:
• increased legislative powers for the European Parliament;
• more majority voting when EU governments adopt legislation;
• creation of a Committee of the Regions;
• application of the subsidiarity principle, whereby the EU will only act if this is more effective at
the EU rather than national level.
FROM WHEN DOES THE TREATY APPLY?
It was signed on 7 October 1992 and entered into force on 1 November 1993.
BACKGROUND
Officially known as the Treaty on European Union, the Maastricht Treaty marked the beginning of ‘a new stage
in the process of creating an ever-closer union among the peoples of Europe’ by giving the previous
communities a political dimension.
MAIN DOCUMENT
Treaty on European Union (OJ C 191, 29.7.1992, pp. 1-112)

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=LEGISSUM:xy0026&from=EN
Treaty on European Union 1992
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:11992M/TXT&from=EN
Common foreign and security policy (CFSP)

The EU's CFSP was established in 1993 under the Maastricht Treaty. It has been progressively reinforced
by subsequent treaties, particularly the Lisbon Treaty (Title V of the Treaty on European Union).
The CFSP is guided by the principles, shall pursue the objectives of, and be conducted in accordance with,
the general provisions applicable to the whole external action of the EU. In that respect, it seeks to preserve
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DRAFT FOR REVIEW
peace, reinforce international security and promote international cooperation, democracy, the rule of law,
respect for human rights and fundamental freedoms.
Since the Treaty of Lisbon entered into force, the EU has legal personality (i.e. it is able to sign
international treaties). It also has a diplomatic service, the European External Action Service, which acts
under the authority of the EU's High Representative for Foreign Affairs and Security Policy and assists her
in fulfilling her mandate (conduct of CFSP, in her capacity as President of the Foreign affairs Council, in
her capacity as Vice-President of the Commission for fulfilling within the Commission the responsibilities
incumbent on it in external relations). In 2014, Federica Mogherini was appointed as High Representative
(HR).
The Political and Security Committee (PSC), comprising ambassadors from the 28 EU countries, also acts
under the responsibility of the HR. It monitors the international situation in the areas covered by the CFSP
and plays a key role in defining and following up the EU's response to a crisis
Permanent structured cooperation

The Lisbon Treaty introduced the possibility for certain EU countries to strengthen their cooperation in
military matters by creating permanent structured cooperation (Articles 42(6) and 46 of the Treaty on
European Union (TEU)). In order to do this, interested countries must fulfil two main conditions provided
in Protocol No 10 annexed to the treaty:
• They must intensively develop defence capacities through the development of national
contributions and their participation in multinational forces, in the main European equipment
programmes and in the activities of the European Defence Agency in the field of defence capabilities
development, research, acquisition and armaments;
• They must have the capacity by 2010 to supply combat units and support logistics for the tasks
referred to in Article 43 TEU within a period of 5 to 30 days and, depending on needs, for a period of 30
to 120 days.
The European Defence Agency regularly assesses the contributions of participating countries.
EU countries wishing to constitute permanent structured cooperation must notify their intention to the
Council and to the EU’s High Representative for Foreign Affairs and Security Policy. Following this
notification, the Council must adopt a decision by qualified majority establishing permanent structured
cooperation and the list of participating countries. The membership of new countries or the suspension of
some of them is decided by the Council by a qualified majority of the members participating in the
permanent structured cooperation. The decisions and recommendations taken within the framework of
such permanent structured cooperation are adopted by unanimity of the participating Council members
only.
https://eur-lex.europa.eu/summary/glossary/foreign_security_policy.html
THE MILITARY KEY PARTNER IN THE SINGLE EUROPEAN SKY Europe For Aviation
https://www.eda.europa.eu/docs/default-source/eda-publications/2019-eda-ses-brochure_a4---final.pdf
Food for Thought on Increasing Contribution of EU Member States to UN

https://www.defence.ie/system/files/media/file-uploads/2018-11/fft-increasing-contribution-eu-ms-un.pdf
Report on the Review of the Conciliation and Arbitration Scheme for Members of the Permanent Defence Force
https://www.defence.ie/system/files/media/file-uploads/2018-10/report-review-conciliation-and-arbitration-
scheme-members-permanent-defence-force.pdf
Defence (Amendment) Bill 2018- General Scheme
https://www.defence.ie/system/files/media/file-uploads/2018-09/defence-amendment-bill-2018.pdf
Green Paper on Defence 2013
https://www.defence.ie/system/files/media/file-uploads/2018-06/grnpapere.pdf
White Paper on Defence 2015
https://www.defence.ie/system/files/media/file-uploads/2018-06/wp2015eng_1.pdf
Permanent Defence Force Outline of Superannuation and other benefits
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Outline of Superannuation and other benefits for Commissioned Officers who

joined on or after 1 April 2004 and before 1 January 2013
https://www.defence.ie/system/files/media/file-uploads/2018-08/outline-superannuation-and-other-benefits-
commissioned-officers-who-joined-or-after-1-april-2004-and.pdf
Geoffrey Cox’s New “Legal

Advice” on Brexit Incentivises
Unionist Violence
"I especially cannot understand the pusillanimous attitude of the government of Ireland to this
development. The UK has published in advance that it is taking Ireland and the Irish people for
fools and has no intention of keeping to the Irish backstop. The reaction of the Government of
Ireland is to pretend not to notice. That is an astonishing dereliction of its duty to the people of
Ireland, North and South."
In brief Some hope Vienna offers a way around the Irish backstop But the bar for using the Vienna Convention is
very high An international rule allowing countries to back out of treaties under certain circumstances has been
dismissed as a “figleaf” by legal experts after it was suggested to be a solution to the Irish backstop row. One of
the key sticking points over Theresa May’s Brexit deal, which was voted down again on Tuesday, is the plan to
prevent a hard border between Northern Ireland and Ireland. Legal advice published by Attorney General
Geoffrey Cox said there was a risk it could leave the UK could trapped under EU rules, causing Tory Brexiteers
and the DUP to refrain from supporting the deal. Mr Cox is believed to have held new talks with the DUP in a bid
to establish what it would take for them to support the deal. And it was suggested that Article 62 of the Vienna
Convention could be used as a way for the UK to pull out of the Northern Ireland border backstop unilaterally.
What is the Vienna Convention? The Vienna Convention on the Law of Treaties (VCLT) is a treaty outlining the
international rules on legal agreements between countries. Britain’s Attorney General Geoffrey Cox leaves after
attending the weekly cabinet meeting (Photo: Getty Images) It entered into force on 27 January 1980 and has
now been ratified by 116 states. Article 62 of the treaty states that if there is “a fundamental change of
circumstances” following the conclusion of a treaty “which was not foreseen by the parties” then the states can
withdraw from said treaty. Mr Cox said on Tuesday that if there is no solution found to stop the backstop “the UK
has no unilateral exit right to leave, unless there were a fundamental change of circumstance under Article 62 of
the Vienna convention on the law of treaties”. This is relevant because the current deal outlines that the UK
cannot leave the backstop without permission from the EU – whereas Article 62 would, in theory, allow the British
Government to do so unilaterally. A defaced road sign on the border at Donegal and Derry (Photo: PA) Reaction?
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The issue with using this legal device to leave the backstop arrangement unilaterally is the definition of a
“fundamental change of circumstance”. Experts in EU law have pointed out that it would have to be a truly
exceptional case for this to apply.
EU law professor of UCL, Piet Eeckout, said Tory Brexiteers are hiding behind the legal device to justify changing
their vote and supporting the deal. He tweeted: “So now Art 62 of the Vienna Convention seems to come back
into fashion. This is about terminating any treaty because of a fundamental change of circumstances. “First point
to note that it’s always been there – since 1969 in fact, in its codified form. So nothing new.
EU law professor of UCL, Piet Eeckout, said Tory Brexiteers are hiding behind the legal device to justify changing
their vote and supporting the deal. He tweeted: “So now Art 62 of the Vienna Convention seems to come back
into fashion. This is about terminating any treaty because of a fundamental change of circumstances. “First point
to note that it’s always been there – since 1969 in fact, in its codified form. So nothing new.
2. Now, we can't tell exactly what Rees-Mogg has in mind when he sonorously invokes VCLT
Art 62. But I think we can safely bet that in his view, a failure to reach an agreement with the EU
constitutes a fundamental change of circumstances that entitles the UK to terminate.
Cameron Miles @usualcaveat
FollowFollow @usualcaveat
1. Gather round, children. This is VCLT Art 62.
14. Put another way, through the act of *invoking* VCLT Art 62 in relation to a particular
circumstances at the time of the treaty's conclusion, the UK will have - *literally in the same
breath* - nullified it as a possible exit route.
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DRAFT FOR REVIEW
Helen Farrell
@hpfarrell
Follow
Follow @hpfarrell
More
Replying to @usualcaveat
I am not a lawyer. But surely if you

sign a Treaty saying you will invoke
this clause to break that Treaty then
you can't claim it as an "unforeseen
circumstance"?
6:56 AM - 14 Mar 2019
Second point is that its scope is notoriously contested in international law: should never be an easy way out of
international commitments!” “I’ve come across one instance: when Yugoslavia descended into war and
dismemberment, the EU relied on the principle to rescind tariff concessions, which Serbia continued to claim. In
Racke the ECJ found that that was an acceptable use of the principle – not without difficulty. “If the ERG and the
DUP wish to hide behind this principle to change their vote, so be it. International lawyer will look at this as a
mere fig-leaf (or a codpiece …). As to the UK’s AG now relying on this, well… I rest my case.” Nonsense
Barrister Cameron Miles said that the process was “exceptionally difficult to invoke”. He pointed out that a request
to use the device in the 1990s by Hungary, which wanted to get out of building a dam on the River Danube, was
rejected despite the breakdown of the USSR and Czechoslovakia – the other parties involved in the treaty.
“Those circumstances were not enough to radically change the nature of the underlying treaty obligation,” he
tweeted. “When one looks at the current political landscape between the UK and EU, one struggles to identify any
change in the terrain that would meet the threshold set by the ICJ.
Cameron Miles @usualcaveat 11. The Backstop was inserted into the withdrawal agreement precisely to cater for
the event of a failure to agree. How, then, can it be said that this eventuality was not foreseen? It's nonsense on
stilts. 347 10:01 - 14 Mar 2019
The Backstop was inserted into the withdrawal agreement precisely to cater for the event of a failure to agree.
How, then, can it be said that this eventuality was not foreseen? It’s nonsense on stilts.”
published by the Attorney General, no less.

The Westminster Government’s contempt for international law was fully
demonstrated just two weeks ago when it repudiated the International Court of Justice
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DRAFT FOR REVIEW
– an act which is the ultimate disavowal of the rule of international law – over the
decolonisation of the Chagos Islands. So in one sense it is no shock that they are
prepared to sign a treaty with no intention of honoring it.
But what is quite astonishing is that the discussions with the DUP and ERG on how to
sign up to the backstop and then dishonour it, have been carried out fully in public,
and with the potential other party to the treaty looking on.
I simply do not see how the EU can now sign the Withdrawal Agreement which was
negotiated with May, when they have been given firm evidence that the UK intends to
cheat on that Agreement.
I especially cannot understand the pusillanimous attitude of the government of Ireland
to this development. The UK has published in advance that it is taking Ireland and the
Irish people for fools and has no intention of keeping to the Irish backstop. The
reaction of the Government of Ireland is to pretend not to notice. That is an
astonishing dereliction of its duty to the people of Ireland, North and South.
The more so as Geoffrey Cox’s “advice” is an unsubtle hint to the DUP, should the
backstop become effective, to restart the Loyalist violence with which they were for
decades so closely associated, in order to provide the pretext for cancelling the
backstop. In reading this, it is essential to remember that this legal advice was written,
as a matter of definite fact, directly for the DUP audience to try and influence the
DUP in the next “meaningful” vote. To signal to an organisation as steeped in blood
as the DUP that the way out of the “Backstop” arrangement which they so hate, would
be to demonstrate it is having a “socially destabilising effect in Northern Ireland”,
clearly gives a very direct incentive to Loyalists to restart violence.
Anybody who knows anything about the history and politics of Northern Ireland must
be aware that what I have just written is true. At the very best reading, Cox’s “advice”
is grossly irresponsible and reckless.
It is also very poor legal advice. Unlike Geoffrey Cox, I have actually negotiated a
number of international treaties, including most of the UK’s continental shelf
boundary agreements, the Protocol on Deep Seabed Mining to UNCLOS and the
Sierra Leone Peace Agreement. Cox’s interpretation of Article 62 of the Vienna
Convention on Treaties is complete nonsense. To start with, Article 62 is designed not
to facilitate but to prevent treaties being dishonoured under the excuse of “unforseen
circumstances”. It reads:
Article 62
Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to those
existing at the
time of the conclusion of a treaty, and which was not foreseen by the parties, may not
be invoked as a
ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of
the parties to
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be bound by the treaty; and

21
(b) the effect of the change is radically to transform the extent of obligations still to be
performed
under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for
terminating or
withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party invoking it either of
an obligation
under the treaty or of any other international obligation owed to any other party to
the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances
as a ground for terminating or withdrawing from a treaty it may also invoke the
change as a ground for
suspending the operation of the treaty.
Very plainly indeed, neither 1 a) nor 1 b) apply to the situation Cox outlines. Just not
working out the way you intended is not grounds to dishonor a treaty. Social
discontent in Northern Ireland would not radically transform the obligations under the
treaty nor is social content the essential basis of consent to the treaty.
The second, and frankly hilarious, point is that Cox’s advice is demonstrably
nonsense. To permit the dishonoring of the treaty, a change in circumstance must not
only be “fundamental” it must also be “unforeseen”. Yet in his legal advice Cox
foresees and specifies the “unforeseen” event that might lead to cancellation!
I rest my case.
It is worth reminding you – as the MSM refuse to do – that the Tory Brexiteers oppose
the Good Friday Agreement, and destroying it is to them a potential gain from Brexit
rather than a disaster to be averted. Remember this by Michael Gove, asserting that
the British military option would be better than the Good Friday Agreement?
Ulster’s future lies, ultimately, either as a Province of the United
Kingdom or a united Ireland. Attempts to fudge or finesse that
truth only create an ambiguity which those who profit by violence
will seek to exploit. Therefore, the best guarantee for stability is the
assertion by the Westminster Government that it will defend, with
all vigour, the right of the democratic majority in Northern Ireland
to remain in the United Kingdom. Ulster could then be governed
with an Assembly elected on the same basis as Wales, and an
administration constituted in the same way. Minority rights should
be protected by the same legal apparatus which exists across the
UK. The legislative framework which has guaranteed the rights and
freedoms of Roman Catholics and ethnic minorities in Liverpool
and London should apply equally in Belfast and Belleek…
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DRAFT FOR REVIEW
In such circumstances, resolute security action, the use of

existing antiterrorist legislation and the careful application of
intelligence could reduce the IRA to operating as it did in the fifties
and sixties. Combining such security measures with a political
determination not to allow Ulster’s constitutional status to be altered
by force of arms would rob the republicans of hope.
It can be done. But does any Government have the will?
Interestingly enough, after I published an article on Gove’s 58 page
pamphlet attacking the Good Friday Agreement, the Tory think tank which published
it, the Centre for Policy Studies, immediately took it down from the web. I have,
however, copied it to my own website.
By chance, my next couple of speaking engagements are in Northern Ireland. This is
not the subject I was intending to discuss, but I never know what I am going to say
when I stand up anyway. Happy to answer questions on anything.
33
DRAFT FOR REVIEW
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat,
the Atlantic Council and hundreds of other warmongering propaganda operations, this
blog has no source of state, corporate or institutional finance whatsoever. It runs
entirely on voluntary subscriptions from its readers – many of whom do not
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DRAFT FOR REVIEW
Subscriptions to keep this blog going are gratefully received.

Sierra Leone Peace Agreement. Cox’s interpretation of Article 62 of the Vienna
Convention on Treaties is complete nonsense. To start with, Article 62 is designed not
to facilitate but to prevent treaties being dishonoured under the excuse of “unforseen
circumstances
Vienna Convention on the Law of Treaties 1969 ART 62
http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
Vienna Convention on the law of treaties, and in particular Article 62 on "fundamental change in circumstances"
in relation to the backstop
https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf
attempts to use this Article – it being marked down as an
warning against
"utterly hopeless" endeavour – in the absence of parliamentary authority to
implement the EU treaties, arising from refusal to repeal Brexit legislation,
a different scenario could apply.
In this case, we could see Article 61 apply: "Supervening impossibility of
performance". This states that a party may invoke the impossibility of
performing a treaty as a ground for terminating or withdrawing from it, if
the impossibility results from the permanent disappearance or destruction
of an object indispensable for the execution of the treaty.
Whether lack of parliamentary approval qualifies as "permanent
disappearance or destruction of an object indispensable for the execution of
the treaty" is one for the lawyers to argue, but on the face of it, Mrs May
doesn't necessarily get a free ride if she wants to call the whole thing off.
One person who is getting a free ride, though – at least from the media – is
Nigel Farage. He has re-emerged from the woodwork to front a protest
march from Sunderland to London, walking the first leg only, before
disappearing.
Having done nothing since the referendum (or before) to promote an
orderly exit, focusing instead on personal enrichment, he now gets
sympathetic headlines from the likes of Sky News about being "betrayed" over
Brexit. Yet, if anyone has betrayed the Eurosceptic movement – in not
pursuing a coherent exit strategy
35
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Brexit: bring on the clowns
Michel Barnier as a "dangerous illusion", the idea that the EU would agree to
transition without the backstop.
36
DRAFT FOR REVIEW
The Price of Peace

6 Nov, 2018
I have never managed fully to understand the mechanism by which the media and
political class decide when to leave a fact, a glaringly obvious and vital fact,
completely excluded from public debate. That process of exclusion is a psychological,
not an organisational, phenomenon but extremely effective.
Brexit continues to dominate mainstream political discussion, and the Northern
Ireland border issue remains at the centre of current negotiations, forced there by the
London government’s reneging on the agreement it signed almost a year ago. But
there is a secret here, hidden in plain sight, the glaring fact driving the entire process,
but which the media somehow never mention.
For the Tory right, the destruction of the Anglo Irish Agreement is a major goal to be
achieved through Brexit. In this, they are in secret communion with their friends in the
DUP.
Consider the 58 page paper by one Michael Gove, entitled The Price of Peace,
published in 2000 by the Tories’ leading “think tank” the Centre for Policy Studies.
The Price of Peace An analysis of British policy in Northern Ireland MICHAEL
GOVE
Gove’s 58 page pamphlet attacking the Good Friday Agreement, the Tory think tank
which published it, the Centre for Policy Studies, immediately took it down from the
web. I have, CPS
https://www.craigmurray.org.uk/wp/wp-content/uploads/2019/02/111220142628-
thepriceofpeace2000MichaelGove.pdf
Gove argues the provisions of the Good Friday Agreement and the Anglo Irish
Agreement should be annulled. And Gove concludes:
Ulster’s future lies, ultimately, either as a Province of the United
Kingdom or a united Ireland. Attempts to fudge or finesse that
truth only create an ambiguity which those who profit by violence
will seek to exploit. Therefore, the best guarantee for stability is the
assertion by the Westminster Government that it will defend, with
all vigour, the right of the democratic majority in Northern Ireland
to remain in the United Kingdom. Ulster could then be governed
with an Assembly elected on the same basis as Wales, and an
administration constituted in the same way. Minority rights should
be protected by the same legal apparatus which exists across the
UK. The legislative framework which has guaranteed the rights and
37
DRAFT FOR REVIEW
freedoms of Roman Catholics and ethnic minorities in Liverpool

and London should apply equally in Belfast and Belleek…
In such circumstances, resolute security action, the use of
existing antiterrorist legislation and the careful application of
intelligence could reduce the IRA to operating as it did in the fifties
and sixties. Combining such security measures with a political
determination not to allow Ulster’s constitutional status to be altered
by force of arms would rob the republicans of hope.
It can be done. But does any Government have the will?
Gove gets to this position through a statement of root and branch opposition to the
Good Friday Agreement motivated by a classic Tory rejection of any role for the state
in seeking to enhance social justice, and of affirmation that the rights of the “majority
community” to rule must not be limited or mitigated. Gove objects to every measure
of the Good Friday Agreement, including promotion of Catholic recruitment into the
RUC, support for the Irish language, state support for businesses, prisoner releases
and changes to the oath of allegiance to the United Kingdom.
It [The Good Friday Agreement] enshrines a vision of human rights which
privileges contending minorities at the expense of the democratic
majority. It supplants the notion of independent citizens with one
of competing client groups. It offers social and economic rights:
“positive rights” which legitimise a growing role for bureaucratic
agencies in the re-distribution of resources, the running of
companies, the regulation of civic life and the exercise of personal
choice. It turns the police force into a political plaything whose
legitimacy depends on familiarity with fashionable social theories
and precise ethnic composition and not effectiveness in
maintaining order. It uproots justice from its traditions and makes
it politically contentious. It demeans traditional expressions of
British national identity. And it privileges those who wish to
refashion or deconstruct that identity.
What does Brexit mean for the EU’s Area of Freedom, Security ...
https://www.ceps.eu/system/files/What%20does%20BREXIT%20mean%20for%20the
%20EU.pdf
Disarming a ticking bomb: Can the Withdrawal Agreement ensure EU-UK

judicial and police cooperation after Brexit?
https://www.ceps.eu/system/files/PI2018_16_MS_FG_EU-
UK%20judicial%20and%20police%20cooperation%20after%20Brexit.pdf
This view of Northern Ireland is shared by Gove’s colleagues in the European Reform
Group. They may have accepted it was politically not possible to roll back the Good
Friday Agreement in the last couple of decades, but Brexit and a hard border
fundamentally undermines the Anglo-Irish Agreement and changes their whole
calculation.
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DRAFT FOR REVIEW
It is not possible to understand the current state of play in Brexit negotiations, without
understanding that those effectively driving the Tory Party position do not view a hard
border with Ireland as undesirable. They view it as a vital achievement en route to
rolling back power sharing and all the affirmative measures which brought peace to
Northern Ireland, in an affirmation of the glory and power of unionism.
It is no accident that Northern Ireland is the rock on which Brexit has foundered. It is
considered Tory strategy about which, by that psychological mechanism I will never
understand, the mainstream media has chosen not to tell you.
https://www.craigmurray.org.uk/archives/2019/03/geoffrey-coxs-new-legal-advice-on-brexit-incentivises-
unionist-violence/?fbclid=IwAR2c4wsiXW9_YPTe8jSYesKGiLM4Hi_pXqA5zxuDMEeTc3zkNKIWvO3oIjQ
UK Rejects International Court of

Justice Opinion on the Chagos
Islands
26 Feb, 2019
In parliament, Alan Duncan for the government has just rejected yesterday’s stunning
result at the International Court of Justice, where British occupation of the Chagos
Islands was found unlawful by a majority of 13 to 1, with all the judges from EU
countries amongst those finding against the UK.
This represents a serious escalation in the UK’s rejection of multilateralism and
international law and a move towards joining the US model of exceptionalism,
standing outside the rule of international law. As such, it is arguably the most
significant foreign policy development for generations. In the Iraq war, while Britain
launched war without UN Security Council authority, it did so on a tenuous argument
that it had Security Council authority from earlier resolutions. The UK was therefore
not outright rejecting the international system. On Chagos it is now simply denying
the authority of the International Court of Justice; this is utterly unprecedented.
Duncan put forward two arguments. Firstly that the ICJ opinion was “only” advisory
to the General Assembly. Secondly, he argued that the ICJ had no jurisdiction as the
case was a bilateral dispute with Mauritius (and thus could only go before the ICJ with
UK consent, which is not given).
But here Duncan is – against all British precedent and past policy – defying a ruling of
the ICJ. The British government argued strenuously in the present case against ICJ
jurisdiction, on just the grounds Duncan cited. The ICJ considered the UK’s
arguments, together with arguments from 32 other states and from the African Union.
The ICJ ruled that it did have jurisdiction, because this was not a bilateral dispute but
part of the UN ordained process of decolonisation.
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DRAFT FOR REVIEW
The International Court of Justice’s ruling on this point is given at length in paras 83
to 91 of its Opinion. This is perhaps the key section:
88. The Court therefore concludes that the opinion has been requested on the matter
of decolonization which is of particular concern to the United Nations. The issues
raised by the request are located in the broader frame of reference of decolonization,
including the General Assembly’s role therein, from which those issues are
inseparable (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 26, para. 38;
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 159, para. 50).
89. Moreover, the Court observes that there may be differences of views on legal
questions in advisory proceedings (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para.
34). However, the fact that the Court may have to pronounce on legal issues on which
divergent views have been expressed by Mauritius and the United Kingdom does not
mean that, by replying to the request, the Court is dealing with a bilateral dispute.
90. In these circumstances, the Court does not consider that to give the opinion
requested would have the effect of circumventing the principle of consent by a State to
the judicial settlement of its dispute with another State. The Court therefore cannot, in
the exercise of its discretion, decline to give the opinion on that ground.
91. In light of the foregoing, the Court concludes that there are no compelling reasons
for it to decline to give the opinion requested by the General Assembly.
As stated at para 183, that the court did have jurisdiction was agreed unanimously,
with even the US judge (the sole dissenter on the main question) in accord. For the
British government to reject the ICJ’s unanimous ruling on jurisdiction, and quote that
in parliament as the reason for not following the ICJ Opinion, is an astonishing
abrogation of international law by the UK. It really is unprecedented. The repudiation
of the UN Working Group on Arbitrary Detention over Julian Assange pointed the
direction the UK is drifting, but that body does not have the prestige of the
International Court of Justice.
The International Court of Justice represents the absolute pinnacle of, and embodies
the principle of, international law. In 176 decisions, such as Nigeria vs Cameroon or
Malaysia vs Indonesia, potentially disastrous conflicts have been averted by the states’
agreement to abide by the rule of law. The UK’s current attack on the ICJ is a truly
disastrous new development.
I have taken it for granted that you know that the reason the UK refuses to decolonise
the Chagos Islands is to provide an airbase for the US military on Diego Garcia. If
Brexit goes ahead, the Chagos Islands will also lead to a major foreign policy
disagreement between the UK and US on one side, and the EU on the other. The EU
will be truly shocked by British repudiation of the ICJ.
I have studied the entire and lengthy ICJ Opinion on the Chagos Islands, together with
its associated papers, and I will write further on this shortly.
—————————————————
40
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Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat,
the Atlantic Council and hundreds of other warmongering propaganda operations, this
blog has no source of state, corporate or institutional finance whatsoever. It runs
entirely on voluntary subscriptions from its readers – many of whom do not
necessarily agree with the articles, but welcome the alternative voice, insider
information and debate.
https://www.craigmurray.org.uk/archives/2019/02/uk-rejects-international-court-of-justice-opinion-on-the-chagos-
islands/
UK Rejects International Court of Justice Opinion

on the Chagos Islands
INTERNATIONAL COURT OF JUSTICE YEAR

2019 25 February 25 2019 General List LEGAL
CONSEQUENCES OF THE SEPARATION OF
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THE CHAGOS ARCHIPELAGO FROM

MAURITIUS IN 1965
26 Feb, 2019
https://www.icj-cij.org/files/case-related/169/169-
20190225-01-00-EN.pdf
dates for elections have already been set and the requirement to hold
https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=CELEX:32018D0994&from=DE
COUNCIL DECISION (EU, Euratom) 2018/994
of 13 July 2018
amending the Act concerning the election of the members of the European Parliament by direct universal suffrage,
annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976
THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 223(1) thereof,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 106a(1) thereof,
Having regard to the proposal from the European Parliament,
After transmission of the draft legislative act to the national parliaments,
Having regard to the consent of the European Parliament (1),
Acting in accordance with a special legislative procedure,
Whereas:
(1)The Act concerning the election of the members of the European Parliament by direct universal suffrage (2) (‘the Electoral
Act’), annexed to Council Decision 76/787/ECSC, EEC, Euratom (3), entered into force on 1 July 1978 and was
subsequently amended by Decision 2002/772/EC, Euratom (4).
(2) A number of amendments are to be made to the Electoral Act.
(3)As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the Council has to lay down the
provisions necessary for the election of the members of the European Parliament by direct universal suffrage in
accordance with a special legislative procedure.
(4)Transparency of the electoral process and access to reliable information are important for raising European political
awareness and for securing a solid election turnout, and it is desirable that citizens of the Union be informed well in
advance of elections to the European Parliament about the candidates standing in those elections and about the affiliation
of national political parties to a European political party.
(5)In order to encourage voter participation in elections to the European Parliament and to fully take advantage of the
possibilities offered by technological developments, Member States could provide for the possibilities of, inter alia,
advance voting, postal voting, and electronic and internet voting, while ensuring, in particular, the reliability of the result,
the secrecy of the vote and the protection of personal data, in accordance with applicable Union law.
(6)Citizens of the Union have the right to participate in its democratic life, in particular, by voting or standing as candidates
in elections to the European Parliament.
(7)Member States are encouraged to take the measures necessary to allow those of their citizens residing in third countries to
vote in elections to the European Parliament.
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DRAFT FOR REVIEW
(8) The Electoral Act should therefore be amended accordingly,

HAS ADOPTED THIS DECISION:
Article 1
The Electoral Act is amended as follows:

(1)Article 1 is replaced by the following:
‘Article 1
1. In each Member State, members of the European Parliament shall be elected as representatives of the citizens of the
Union on the basis of proportional representation, using the list system or the single transferable vote.
2. Member States may authorise voting based on a preferential list system in accordance with the procedure they adopt.
3. Elections shall be by direct universal suffrage and shall be free and secret.’;
(2)Article 3 is replaced by the following:
‘Article 3
1. Member States may set a minimum threshold for the allocation of seats. At national level, this threshold may not
exceed 5 per cent of valid votes cast.
2. Member States in which the list system is used shall set a minimum threshold for the allocation of seats for
constituencies which comprise more than 35 seats. This threshold shall not be lower than 2 per cent, and shall not exceed
5 per cent, of the valid votes cast in the constituency concerned, including a single-constituency Member State.
3. Member States shall take the measures necessary to comply with the obligation set out in paragraph 2 no later than in
time for the elections to the European Parliament which follow the first ones taking place after the entry into force of
Council Decision (EU, Euratom) 2018
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32018D0994&from=DE
COMMISSION REGULATION (EC) No 3627/93 of 28 December 1993 concerning the stopping of fishing for
Atlantic redfish by vessels flying the flag of a Member State
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:1993:329:FULL&from=EN
Eleanor Sharpston
@akulith
Follow
Follow @akulith
More
32. I am naturally not advocating any

particular mechanism or any
43
DRAFT FOR REVIEW
particular course of action. But if the

political will to agree a longer Article
50 TEU extension is there, a legal
mechanism can be found to
accommodate that desire and ‘deal
with’ the issue of the EP elections.
4:48 PM - 13 Mar 2019
31. No doubt other mechanisms could be envisaged also. What would be necessary would be
to ensure that the EU-27 could go ahead and elect a new EP as scheduled, and to arrange for
the British MEPs to sit in that new EP as additional members on a temporary ‘Brexit-limited’
basis.
Chain continues! 25. Article 50 TEU (withdrawals from the EU) is the mirror provision of Article
49 TEU (accessions to the EU). Article 49 TEU served as the legal base for the 2011 Treaty of
Accession of Croatia to the European Union.
28. An entire provision – Article 19 – was devoted to increasing membership of the EP so as to
accommodate Croatian MEPs before the date of the next EP elections. In so doing, the Parties
derogated from otherwise mandatory Treaty provisions.
https://twitter.com/akulith/status/1105979001384984577
THE ROLE OF THE OIREACHTAS POST LISBON Joe Costello TD ...
https://www.labour.ie/download/pdf/theroleoftheoireachtas.pdf
The Referendum in Ireland - laois.ie
CONSTITUTIONAL REFERENDUM. 2.1 Amendment of the Constitution. The Constitution of Ireland
(Bunreacht na hÉireann) was approved by the people at a plebiscite held on 1st July 1937 and came
into operation on 29th December 1937.
https://www.laois.ie/wp-content/uploads/The-Referendum-in-Ireland-1.pdf
POLITICAL DECLARATION SETTING OUT THE FRAMEWORK FOR THE FUTURE RELATIONSHIP
BETWEEN THE EUROPEAN UNION AND THE UNITED KINGDOM INTRODUCTION
future trade agreement. While the wording is vague, it is clear that the current Withdrawal Agreement + the
Political Declaration means a Customs Union. Indeed it is not well disguised. Paragraph 23 of the declaration
refers to “single customs territory.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/758557/22_No
vember_Draft_Political_Declaration_setting_out_the_framework_for_the_future_relationship_between_the_EU_a
nd_the_UK__agreed_at_negotiators__level_and_agreed_in_principle_at_political_level__subject_to_endorseme
nt_by_Leaders.pdf
Attorney General has already put his thoughts down in public in the House of Commons and privately in a memo
to the Prime Minister that was subsequently released. In this private advice AG-to-PM-Legal-Effect-of-the-
Protocol-on-Ireland-Northern-Ireland
https://lawyersforbritain.org/wp-content/uploads/2018/12/181113-AG-to-PM-Legal-Effect-of-the-Protocol-on-
Ireland-Northern-Ireland.pdf
Attorney General will then try the same trick David Cameron
tried and ‘lodge it at the UN’. This has no legal importance, and
44
DRAFT FOR REVIEW
does not, as with David Cameron’s renegotiation, make a

document a ‘treaty’ (see David Lidington here)
The Decision of the Heads of State or Government is a treaty between the 28 Member States.
Article 102 of the UN Charter and Article 80 of the Vienna Convention on the Law of Treaties
provide that every treaty and every international agreement shall be registered with the UN
Secretariat. Registration with the UN is a clear indicator that the document is a treaty.
Foreign and Commonwealth Office
European Council
29121
To ask the Secretary of State for Foreign and Commonwealth Affairs, what the legal effect is of registering the
Decision of the Heads of State or Government, meeting within the European Council on 18 and 19 February 2016,
with the UN.
45

The Lisbon Treaty - The Problem of Democratic Legitimacy

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The Lisbon Treaty - The Problem of Democratic Legitimacy

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DRAFT FOR REVIEW

The Lisbon Treaty: The problem of democratic legitimacy

Spain was the first country to hold a referendum, and it

France was next, and the initial polls showed a significant

Three days later the Dutch referendum rejected the Treaty

Legitimacy in political science, is the popular acceptance of a governing regime or law as an

The keyword here is 'grants'.

Why do we need a new treaty?

* efficiency, making the EU work better

Simple, actually. Nice and workable. Innocent bordering on benign.

What does the Treaty accomplish?

An analysis by Prof. Anthony Coughlan (published at

1. It establishes a legally new European Union in the constitutional form of a

It is an extensive reformation of the European Union, transferring a larger number of

Or, in the words of Barroso:

Barroso on the superstate:

This is an interesting wording. Superficially read, it is a rejection of the notion of EU being a

Accountability is a big issue.

3) Giving the EU a stronger voice in the wider world

The Citizens' Initiative

Or, taken directly from the treaty text:

The European Union was never designed to be a

Under this model, the state is divided into

An interpretation of this is that the original European Community, understood as an

From the rejection of the Constitution to the ratification of

1) It was a different treaty.

The Danish situation

This is a fallacy on several points:

3) It is assumed that the referendum was needed only for technical

It is worth noting that article 20 permits only 'specific measures' of authority to be

Is there a public demand for referendums on new EU

The official EU reference site for the Lisbon Treaty:

The treaty texts, in all official EU languages:

The reasons for the treaty, according to Barroso:

European Court of Justice:

Consolidated, reader friendly Lisbon Treaty:

A legal analysis of the Treaty by lawyer Klaus Heeger:

Commission Running Scared of the People: Good

Not a Comma Has Changed!

How 'Mini' is the EU's "Mini Treay"?

Ever Closer Union: An Introduction to European Integration:

There exists an Internet page for 'Citizens Initiatives':

Statements by Irish MEP's on the treaty:

egoeccentric's Idiots Guide To The Lisbon Treaty

Citizenship Referendum: Interpretative Declaration by the Irish and

Norway — Norwegian European Communities membership

Norway — Norwegian European Union membership referendum,

Ireland — a referendum to approve the Twenty-eighth

Ireland — a referendum to approve the Twenty-eighth

Ireland — a referendum to approve the Twenty-fourth Amendment

Ireland — a referendum to approve the Twenty-sixth Amendment

Greece — Greek bailout referendum, 2015, 5 July 2015, 61.3%

France — French European Constitution referendum, 2005, 29

Netherlands — Dutch European Constitution referendum, 2005, 1

Decision Making. This was why the UK Government happily promised

Denmark — Danish euro referendum, 2000, 28 September 2000,

Sweden — Swedish euro referendum, 2003, 14 September 2003,

Greenland — Greenlandic European Communities

Flexibility in EU decision-making: passerelle clauses, brake

Article 48 of the Treaty on European Union

Thus, the Treaty of Lisbon introduces 3 types of clause:

Brake clauses concern 3 areas:

• judicial cooperation in criminal matters (Article 82 of the TFEU);

These clauses concern 4 areas:

• judicial cooperation in criminal matters (Article 82 of the TFEU);

• the creation of a European Public Prosecutor’s Office (Article 86 of the TFEU);