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  1. #1
    Freeborn John Freeborn John is offline

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    Lisbon treaty text by Article: Article 50 TEU (withdrawal)

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

    Article 56(1) of the Vienna Convention on the Law on Treaties (applies now under Nice)
    1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
    a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
    b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
    A leading text on the law of treaties says ‘the constituent instrument of an international organisation…almost certainly falls within paragraph (b)’. In other words a signatory state is free to leave an international organization even if the treaty setting up that organisation has no specific provision on withdrawal. What Lisbon does do (in Article 50 TEU) is include such a specific provision on withdrawal. because of that Article 54 of the Vienna Convention on the Law on Treaties would apply should Lisbon come into force. It states:

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

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

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    Article 50 TEU
    1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
    2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
    3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
    4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
    A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
    5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
    Last edited by Freeborn John; 4th September 2009 at 04:21 PM.
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  2. #2
    He3 He3 is offline

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  3. #3
    marmurr1916 marmurr1916 is offline

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    [FONT=TimesNewRomanItMS][SIZE=2][FONT=TimesNewRomanItMS][SIZE=2]
    It is sometimes said by EU supporters that EU sceptics should vote for Lisbon because it is the first EU treaty to include a specific provision on withdrawal. This is a highly disingenuous. International treaties (like those on European Union) may be divided into those (like Lisbon) which include provisions on a party withdrawing and those (like Rome through Nice) which have no such provision. But the lack of such a provision does not mean that withdrawal is impossible. Article 56(1) of the Vienna Convention on the Law on Treaties states...
    [/SIZE][/FONT]

    [SIZE=2][FONT=TimesNewRomanItMS]Firstly, I have never heard anyone claim that Ireland does not have a right to withdraw from the EU at present.[/FONT][/SIZE]


    [SIZE=2][FONT=TimesNewRomanItMS]Neither have I ever heard anyone claim that Ireland is 'locked into' to its membership of the EU.[/FONT][/SIZE]



    [SIZE=2][FONT=TimesNewRomanItMS]On the contrary, I have, along with other posters, repeatedly stressed the voluntary nature of Ireland's membership of the EU, including its right to leave the EU. [/FONT][/SIZE]



    [SIZE=2][FONT=TimesNewRomanItMS]Secondly, the Article from the Vienna Convention which you quote is only given partially.[/FONT][/SIZE]



    [SIZE=2][FONT=TimesNewRomanItMS]This is the article in full: [/FONT][/SIZE]


    [SIZE=2][FONT=TimesNewRomanItMS]

    [SIZE=2][FONT=TimesNewRomanItMS]
    [SIZE=2][FONT=TimesNewRomanItMS]Article 56[/FONT][/SIZE]
    [SIZE=2][FONT=TimesNewRomanItMS]Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal[/FONT][/SIZE][/FONT][/SIZE]
    [SIZE=2][FONT=TimesNewRomanItMS]
    [/FONT][/SIZE]


    [SIZE=2][FONT=TimesNewRomanMS]
    [SIZE=2][FONT=TimesNewRomanMS]1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:[/FONT][/SIZE][/FONT][/SIZE]
    [SIZE=2][FONT=TimesNewRomanMS]


    [SIZE=2][FONT=TimesNewRomanMS]([/FONT][/SIZE]


    [/FONT][/SIZE][FONT=TimesNewRomanItMS][SIZE=2][FONT=TimesNewRomanItMS][SIZE=2]a[/SIZE][/FONT][/SIZE][/FONT][FONT=TimesNewRomanMS][SIZE=2][FONT=TimesNewRomanMS][SIZE=2]) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or[/SIZE][/FONT][/SIZE][/FONT]


    [SIZE=2][FONT=TimesNewRomanMS]
    [SIZE=2][FONT=TimesNewRomanMS]([/FONT][/SIZE][/FONT][/SIZE]
    [SIZE=2][FONT=TimesNewRomanMS]

    [/FONT][/SIZE][FONT=TimesNewRomanItMS][SIZE=2][FONT=TimesNewRomanItMS][SIZE=2]b[/SIZE][/FONT][/SIZE][/FONT][FONT=TimesNewRomanMS][SIZE=2][FONT=TimesNewRomanMS][SIZE=2]) a right of denunciation or withdrawal may be implied by the nature of the treaty.[/SIZE][/FONT][/SIZE][/FONT]


    [SIZE=2][FONT=TimesNewRomanMS]
    [SIZE=2][FONT=TimesNewRomanMS]2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.[/FONT][/SIZE][/FONT][/SIZE]
    [SIZE=2][FONT=TimesNewRomanMS]
    [/FONT][/SIZE]
    [/FONT][/SIZE][/SIZE][/FONT]


    [SIZE=2][FONT=TimesNewRomanMS]
    [SIZE=2][FONT=TimesNewRomanMS]As we know, the EU treaties presently contain an implicit right of withdrawal.[/FONT][/SIZE][/FONT][/SIZE]
    [SIZE=2][FONT=TimesNewRomanMS]


    [SIZE=2][FONT=TimesNewRomanMS]Therefore, if Ireland wished to withdraw from the existing EU treaties it would have to give at least twelve month's notice.[/FONT][/SIZE]



    [SIZE=2][FONT=TimesNewRomanMS]Under the Treaty of Lisbon, that period would be increased to two years (and could, in theory, be less than one year), hardly the most onerous imposition.[/FONT][/SIZE]



    [/FONT][/SIZE]
    Last edited by marmurr1916; 7th September 2009 at 06:47 PM.
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  4. #4
    He3 He3 is offline

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    That makes the WeBelong effort to suggest that Lisbon improves our situation even more deceitful.
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  5. #5
    Freeborn John Freeborn John is offline

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    Quote Originally Posted by marmurr1916 View Post
    Under the Treaty of Lisbon, that period would be increased to two years, hardly the most onerous imposition.
    Apologies. As you say the procedural change would be that Lisbon drags the process out from one year to two.

    I was not thinking of you when referring to disingenuous YES supporters calling on EU-sceptics to support Lisbon because of this article, but there certainly are some around. Good that you are not one of them.

    Do you think Crotty would apply should the 'oridnary revsision procedure' (e.g. so-called self-ammending procedure) of Lisbon be used to make a change to this article? For example to increase the period from two years to five years, or even to make it so onerous for a state to leave that it would become practically impossible? That wouldn't effect the powers of the EU after all.
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  6. #6
    Al. Al. is offline

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    Quote Originally Posted by marmurr1916 View Post
    As we know, the EU treaties presently contain an implicit right of withdrawal
    Text?

    Notice of withdrawal is not a right of withdrawal.
    Therefore, if Ireland wished to withdraw from the existing EU treaties it would have to give at least twelve month's notice.

    Under the Treaty of Lisbon, that period would be increased to two years, hardly the most onerous imposition
    No, it is quite onerous, especially since within that period, the Union gets to decide the country's fate without its participation in the Council. Furthermore, it's the Union that sets all the conditions for withdrawal; the member state cannot set out its own conditions, unless it were to invoke clausula rebus sic stantibus (upon which there are several grounds for doing so).

    Some people haven't realised what empire they've been sold into yet.
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  7. #7
    molloyjh molloyjh is offline

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    Quote Originally Posted by Al. View Post
    Text?

    Notice of withdrawal is not a right of withdrawal.No, it is quite onerous, especially since within that period, the Union gets to decide the country's fate without its participation in the Council. Furthermore, it's the Union that sets all the conditions for withdrawal; the member state cannot set out its own conditions, unless it were to invoke clausula rebus sic stantibus (upon which there are several grounds for doing so).

    Some people haven't realised what empire they've been sold into yet.
    Is it the Imperial Empire with the evil Emporer Palpatine at the throne. Should we get the "Vote Yes or Vader will get ya" posters ready?
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  8. #8
    Freeborn John Freeborn John is offline

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    Quote Originally Posted by molloyjh View Post
    Is it the Imperial Empire with the evil Emporer Palpatine at the throne. Should we get the "Vote Yes or Vader will get ya" posters ready?
    What's your opinion on the question i asked earlier. Would there be a need for a referendum in Ireland should the Lisbon treaty 'ordinary revision procedure' be used to change this article?
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  9. #9
    molloyjh molloyjh is offline

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    Quote Originally Posted by Freeborn John View Post
    What's your opinion on the question i asked earlier. Would there be a need for a referendum in Ireland should the Lisbon treaty 'ordinary revision procedure' be used to change this article?
    Honestly I don't know enough about Crotty to make that call. I would imagine not, but then I really haven't a clue. More importantly do you really think an amendment like that is realisitic? Why would the EU ever do such a thing?
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  10. #10
    Freeborn John Freeborn John is offline

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    Quote Originally Posted by molloyjh View Post
    Honestly I don't know enough about Crotty to make that call. I would imagine not, but then I really haven't a clue. More importantly do you really think an amendment like that is realisitic? Why would the EU ever do such a thing?
    Well there has to be a logical reason for the federalists who wrote Lisbon to have put this article into this treaty. The only logical reason i can see is that it could later be amended to make it very difficult for a state to leave. If states cannot leave they have their federation locked in. So long as there is such a withdrawal article in the EU treaty, then Article 54 of the Vienna Convention means it has to followed no matter how difficult it would actually make withdrawal in practice.

    It would not take a great deal to achieve this either. If the negotiation period were raised to even 5 years it would mean the possibility/probability of any government that did propose to withdraw losing office during this negotiating period. If they came to power again at a later date the clock would have been reset. So Brussels would have an incentive to drag its heels.

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    "The European Union is a state under construction." Elmar Brok
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