Fordham International Law Journal
Volume 33, Issue 5 2011 Article 5
If at First You Don’t Succeed: Vote, Vote
Again: Analyzing the Second Referendum
Phenomenon in EU Treaty Change
Gr
´
ainne de B
´
urca
∗
∗
Copyright
c
2011 by the authors. Fordham International Law Journal is produced by The Berke-
ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
If at First You Don’t Succeed: Vote, Vote
Again: Analyzing the Second Referendum
Phenomenon in EU Treaty Change
Gr
´
ainne de B
´
urca
Abstract
The aim of this Essay is to probe the causes of the European Union’s (”EU”) second-referendum
practice with a view to better understand what strikes many observers as a procedurally bizarre and
democratically dubious exercise. It is not the intention of this Essay to offer any justification for
the practice, but rather to explain the factors specific to the EU which have contributed to its
recurrence.
1472
ESSAYS
IF AT FIRST YOU DON’T SUCCEED: VOTE, VOTE
AGAIN: ANALYZING THE SECOND REFERENDUM
PHENOMENON IN EU TREATY CHANGE
Gráinne de Búrca
*
INTRODUCTION
The Lisbon Treaty came into force in December 2009
1
after
a long and tortuous path that began with the Laeken Declaration
of 2001,
2
authorizing the establishment of a Convention on the
Future of Europe, followed by the eventual rejection of the
resulting Treaty establishing a Constitution for Europe in 2005.
3
When the Lisbon Treaty emerged two years later from the ashes
of the failed Constitutional Treaty, the stakes were high and the
investment of Member States and the European Union (“EU”)
institutions in its success was substantial.
4
A great deal of political
time, energy, and capital had been invested in the process, and
on this occasion, unlike the attempted ratification of the
Constitutional Treaty, Ireland was, for reasons peculiar to its own
constitutional provisions,
5
the only Member State to hold a
popular referendum as part of the domestic ratification process.
When the result of the referendum held in June 2008 was
negative, Ireland came under significant pressure from the EU
* Professor, Harvard Law School.
1. The Treaty of Lisbon, Dec. 13, 2007, 2007 O.J. C 306/1 (entered into force Dec.
1, 2009).
2. Laeken European Council, Laeken Declaration on the Future of the European Union,
Presidency Counclusions, Annex 1, E.U.
BULL., no. 12, at 19 (2001).
3. Draft Treaty Establishing a Constitution for Europe, 2004 O.J. C 310/1 (never
ratified).
4. See Ingolf Pernice, The Treaty of Lisbon: Multilevel Constitutionalism in Action, 15
C
OLUM. J. EUR. L. 349, 357 (2009).
5. See generally Gavin Barrett, Building a Swiss Chalet in Irish Legal Landscape?
Referendums on European Union Treaties in Ireland & the Impact of Supreme Court
Jurisprudence, 5 E
UR. CONST. L. REV. 32 (2009) (explaining and critiquing the Irish
constitutional provisions that caused Ireland to adopt a popular vote referendum).
2010] THE SECOND REFERENDUM PHENOMENON 1473
and other Member States to find a way around the result, and to
find a way of ratifying the treaty despite the popular no vote.
The idea of being asked to vote again in order to “get the
answer right” provoked media and public outrage.
6
Yet, the
Lisbon Treaty was not the first occasion on which an EU Member
State was asked to hold a referendum for a second time. No less
than three times in the history of the EU, a Member State whose
population had voted against the ratification of a new EU treaty
in a constitutionally binding referendum opted under pressure
to rerun the referendum in the hope that the negative result
would be reversed by the second vote. The first occasion involved
the rejection by the Danes of the Maastricht Treaty in 1992,
7
while the second involved the rejection by the Irish of the Nice
Treaty in 2001.
8
The only two such popular “no” votes against an
amending treaty that did not result in the holding of a second
referendum were the votes of the French and the Dutch
electorates on the ratification of the Treaty establishing a
Constitution for Europe in 2005. On that occasion, the impact
and significance of the double-no was considered to signal the
death of the Constitutional Treaty, and to render the prospect of
a second referendum undesirable.
9
The fact that an EU treaty ratification referendum has been
rerun under external pressure upon the Member State in
question, not once but three times within fifteen years, suggests
that it has become something of a European Union (“EU”)
practice, and the curious and controversial nature of this practice
calls for closer scrutiny. Critics have described it as undemocratic
because it refuses to respect the will of the people as legitimately
6. See, e.g., Sarah Collins, Demonstrators Claim EU is Trying to Railroad Irish Voters,
I
RISH TIMES (Dublin), Dec. 12, 2008, at 13; Mary Lou McDonald & Dick Roche, Head to
Head: Is the Second Referendum on Lisbon an Abuse of Democracy?,
IRISH TIMES (Dublin),
Dec. 22, 2008, at 12; Elaine Edwards, Voters Being ‘Threatened’ on Lisbon, I
RISH TIMES
(Dublin), Aug. 18, 2009, http://www.irishtimes.com/newspaper/breaking/2009/0818/
breaking47.html.
7. See Pernice, supra note 4, at 355.
8. See id. at 356.
9. See Gráinne de Búrca, The Lisbon Treaty No-Vote: An Irish Problem or a European
Problem? (Univ. College Dublin Law Research Paper Series, Law Research Paper No. 3,
2009), available at http://ssrn.com/abstract=1359042 (analyzing the difference between
the reaction to the French and Dutch rejection of the Constitutional Treaty and the
Irish rejection of the Lisbon Treaty).
1474 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:1472
expressed in the result of the referendum,
10
and a respected
international democracy think-tank criticized the pressure that
was placed on Ireland to hold a second referendum on the
Lisbon Treaty as “undermining the democratic legitimacy of the
EU.”
11
The aim of this Essay is to probe the causes of the EU’s
second-referendum practice with a view to better understanding
the resort to what strikes many observers as a procedurally bizarre
and democratically dubious exercise. It is not the intention of
this Essay to offer any justification for the practice, but rather to
explain the factors specific to the EU which have contributed to
its recurrence.
I. FACTORS UNDERLYING THE PRESSURE TO RESORT TO A
SECOND REFERENDUM
A. Strictures of the EU Treaty Amendment Procedure
The most significant factor that explains the regular
recourse to this curious practice is the rigorous procedure for
amending the EU treaties, which has been laid down in the
treaties themselves.
12
Now contained in article 48(4) of the
Treaty on the European Union (“TEU”),
13
the basic requirement
of the “ordinary revision procedure,” which is also the default
requirement for treaty amendment in international law,
14
is
consent (“common accord” in the language of article 48 TEU)
on the part of all the Member States and thus all of the Member
10. See Anthony Coughlan, Same Referendum, Different Day—Why the Irish Should Vote
‘No’ Again, E
UROPEAN VOICE (Brussels), June 27, 2002, http://www.europeanvoice.com/
article/imported/viewpoint-same-referendum,-different-day-why-the-irish-should-vote-
no-again-/45125.aspx (discussing the potential unconstitutionality of a second
referendum); see also Glen Ruffle, Third Time Lucky, I
NT’L REL., Oct.–Nov. 2009,
http://www.globalaffairs.es/en/third-time-lucky (critiquing the second Lisbon Treaty
referendum); Irish EU Vote Plan ‘Undemocratic’ , BBC
NEWS, Dec. 11, 2008,
http://news.bbc.co.uk/2/hi/uk_news/politics/7777713.stm (stating views of the U.K.
conservatives).
11. Markus Schmidgen, Evaluation of the Irish Referendum on Lisbon Treaty,
D
EMOCRACY INT’L (Berlin), June 2008, at 14.
12. See generally Bruno de Witte, Treaty Revision in the European Union: Constitutional
Change through International Law, 35 N
ETH. Y.B. OF INT’L L. 51 (2004).
13. Consolidated Version of the Treaty on European Union art. 48(4), 2008 O.J. C
115/13, at 42 [hereinafter TEU post-Lisbon].
14. See Vienna Convention on the Law of Treaties art. 39, May 23, 1969, 1155
U.N.T.S. 311 [hereinafter Vienna Convention].
2010] THE SECOND REFERENDUM PHENOMENON 1475
States who are party to the treaty being amended.
15
A further
onerous requirement of the EU treaty amendment procedure
laid down in article 48(4) is that of ratification by every Member
State in accordance with their domestic constitutional
requirements.
16
Indeed, even the new simplified revision
procedure introduced by the Lisbon Treaty appears to envisage
approval by every Member State.
17
The requirement of
unanimous consent on the part of all Member States for an EU
treaty amendment to come into force obviously has the
consequence that when one Member State fails to ratify or rejects
the ratification of a proposed treaty, the rejection by that state
jeopardizes the possibility of the treaty coming into force for any
and all other Member States. Unlike the general rules of
international law,
18
EU law makes no allowance for the
provisional application of an EU amending treaty pending its
ratification by all Member States,
19
or for the entry into force of
an EU treaty amendment following ratification by a specified
number, but not all of the Member States. Instead, the
requirement of unanimous consent and the requirement of
domestic ratification by all Member States for EU treaty
amendment are unqualified.
20
The core of the critique of the second-referendum practice
is that it fails to respect the outcome of legitimate constitutional
processes and undermines the democratically expressed will of
15. See TEU post-Lisbon, supra note 13, art. 48(4), 2008 O.J. C 115, at 42.
16. See id.
17. The language of article 48(6) does not explicitly specify “all of the Member
States” as article 48(4) does of the ordinary revision procedure, but, on the other hand,
it would be difficult to interpret “approved by the Member States” in article 48(6) as
meaning only some of the Member States. Id. art. 48(4), 48(6), 2008 O.J. C 115, at 42.
With that said, Member States are obviously free to decide for themselves what their
constitution requires for approval of a decision of the European Council to amend the
treaties by the simplified procedure.
18. See Vienna Convention, supra note 14, arts. 24–25. The subject of provisional
application is dealt with in article 25 and requirements concerning entry into force are
contained in article 24. Id.
19. Provisional application of a treaty containing new institutional rules to states
which have ratified it but not to those which have not would cause significant difficulties
in the EU context. See de Witte, supra note 12, at 71–72.
20. The provision in article 48(5) of the Treaty on European Union was also
present in the failed Treaty Establishing a Constitution for Europe, and envisaged a
procedure to be followed in the event of ratification by four-fifths of the Member States.
See infra note 60; see also TEU post-Lisbon, supra note 13, art. 48(5), 2008 O.J. C 115, at
42.
1476 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:1472
the people. However, it can also be viewed as a pragmatic
response to an excessively strict EU treaty amendment process
which may have been appropriate for a community of six
Member States, but not for an EU of twenty-seven.
21
It is perhaps
unsurprising, given the strictures of the EU treaty amendment
process, that pressure has been placed on Member States which
have rejected ratification of a treaty to try to identify the reasons
for the rejection and to address them, especially when most or all
other Member States have already ratified, or plan to ratify, the
treaty in question.
B. Distinct Nature of the Context of EU Treaty Change Compared with
Other International Contexts
Pressure on a Member State to reconsider its failure to ratify
a treaty is rarely found at the international level outside the EU.
It is difficult to imagine significant external pressure being
imposed on a state which is engaged in deciding whether or not
to join the World Trade Organization, the Council of Europe, or
any other regional or international organization. If the matter is
put to a popular vote in a given state and the vote is negative, the
matter is generally concluded. The state in question does not
join, the organization does not gain a new member, a “no” vote
in the referendum is taken to mean no and all parties move on.
Further, even in the case of EU treaties governing accession, no
prospective Member State whose population rejected the
proposal to accede has yet been placed under external pressure
to resubmit the referendum and to try again to have the treaty
ratified. The population of Norway voted against EU
membership,
22
and that of Switzerland voted against European
21. See Hervé Bribosia, Notre Europe, Réviser les traités européens: Plaidoyer en faveur
de la suppression du veto [Revising the European Treaties: Advocating in Favor of Abolishing the
Veto], at 1–35, Policy Paper No. 37, Dec. 1, 2009, available at http://www.notre-
europe.eu/uploads/tx_publication/Policypaper37-HBribosia-R_viser_les_trait_s.pdf
(Fr.) (outlining a proposal to abandon the strict unanimity-based amendment process in
favor of a lighter procedure).
22. Two popular referenda were held on the question of whether to join the EU in
1972 and 1994, respectively, and the proposal was rejected each time by a comfortable
majority. See 1 C
ENT. BUREAU OF STATISTICS OF NORWAY, FOLKEAVSTEMNINGEN OM EF 30
[A
DVISORY REFERENDUM ON NORWAY’S ACCESSION TO THE EC] (1972),
http://www.ssb.no/histstat/nos/nos_a522.pdf; The Norwegian Mission to the EU,
Norway and the EU—Historical Overview, http://www.eu-norway.org/eu/History/ (last
visited Aug. 18, 2010); 1994: Norway Votes ‘No’ to Europe, BBC
NEWS, Nov. 28, 1994,
2010] THE SECOND REFERENDUM PHENOMENON 1477
Economic Association membership,
23
yet no external pressure
was imposed on either state to rerun the referenda. Unlike the
case of non-ratification of broader and more general EU
amending treaties, no other Member State is particularly affected
by a popular “no” vote on a proposed accession treaty, and the
EU is not affected other than in its failure to gain a new member.
The crucial difference in the case of referenda concerning
EU amending treaties is that, unlike accession treaties and other
similar agreements concerning EU association, cooperation, and
neighborhood, amending treaties are not bilateral-type
agreements between a new Member State and the EU. Once a
state becomes a member of the EU, that Member State gains an
effective veto over any treaty change affecting all Member States,
even if all other Member States are in agreement and supportive
of the change. Thus, the current EU treaty requirement of
unanimous ratification of amending treaties
24
means that any
one Member State can block change desired by all other Member
States. It is this feature that generates pressure on Member States
whose populations have rejected a treaty that has otherwise been
accepted by all or most others to reconsider the negative vote.
C. Growing Mistrust of Popular Referenda on Constitutional Matters
The other crucial factor which has been present in each of
the five cases in which ratification of an EU amending treaty has
been rejected by a Member State is that the ratification process
which led to rejection involved a popular referendum rather
than, for example, a parliamentary vote or an executive decision.
Had the failure to ratify an EU treaty followed from a presidential
refusal to sign, as could have been case in the Czech Republic or
Poland; or from a constitutional court decision, as could have
been the case in Germany; the Member State in question might
not have experienced the same kind of pressure to find a
solution to enable ratification. The EU’s willingness to encourage
http://news.bbc.co.uk/onthisday/hi/dates/stories/november/28/newsid_4208000/
4208314.stm.
23. See European Union, Switzerland, http://ec.europa.eu/external_relations/
switzerland/index_en.htm (last visited Aug. 18, 2010); swissinfo, Switzerland and the
EU, http://www.swissinfo.ch/eng/country_information/country_profile/
switzerland_and_the_eu.html?cid=5764106 (Nov. 17, 2009).
24. See TEU post-Lisbon, supra note 13, arts. 48(4)–(5), 2008 O.J. C 115, at 42.
1478 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:1472
a Member State to try again, and to take action to reverse the
rejection of a treaty, seems linked to the fact that the rejection
was the result of a popular referendum.
One interpretation of this, as critics have charged, is that the
willingness to bypass the results of domestic referenda indicates
elite disregard for the popular will.
25
Less polemically, however,
there seems to be a measure of political and intellectual
skepticism about the suitability of popular referenda as
instruments of constitutional reform.
26
Such mistrust of the
popular referendum as a decision-making mechanism for
constitutional matters may have translated into an unwillingness
to accept the outcome of a referendum process in a given
Member State as decisive. The EU political response to a popular
no-vote, on every occasion except that of the rejection of the
Treaty establishing a Constitution for Europe in France and the
Netherlands, has been to encourage the Member State in
question to investigate whether the objections underlying the no-
vote were specific to that state, whether they could be
accommodated or addressed within the terms of the new treaty
in question, whether they were based on a misunderstanding of
the treaty, or whether there was some other way in which the
objections could be addressed without rejecting the entirety of
the treaty and preventing its coming into force for the other
Member States.
27
25. See, e.g., Collins, supra note 6, at 13 (noting the “railroading” of the Irish
electorate by having a second vote on the Lisbon Treaty); Ruffle, supra note 10
(criticizing the second referendum in Ireland and the Lisbon Treaty).
26. See, e.g., Mark Franklin et al., Uncorking the Bottle: Popular Opposition to European
Unification in the Wake of Maastricht, 32 J.
OF COMMON MKT. STUD. 455, 458–71 (1994);
Sara Binzer Hobolt, Direct Democracy and European Integration, 13 J.
OF EUR. PUB. POL’Y
153 (2006); Cameron Anderson & Elizabeth Goodyear-Grant, Referenda Skepticism Among
Highly-Informed Citizens: Assessing Three Explanations, (Annual Meeting of the Canadian
Political Science Association 2008), available at http://www.cpsa-acsp.ca/papers-2008/
anderson-goodyear-grant.pdf. See generally L
AWRENCE LEDUC, THE POLITICS OF DIRECT
DEMOCRACY: REFERENDUMS IN GLOBAL PERSPECTIVE 185–92 (2003) (evaluating the
potential for direct democratic processes to improve democratic government).
27. See de Búrca, supra note 9.
2010] THE SECOND REFERENDUM PHENOMENON 1479
II. LEGAL AND POLITICAL RESPONSES TO THE VETO-
PRESSURE IN THE CONTEXT OF EU TREATY CHANGE
A. Ex-Ante Flexibility Mechanisms
The pressure imposed by the existence of the multiple veto
points on EU treaty reform has, in the past, given rise to other
distinctive mechanisms seeking to ensure adoption of a treaty by
all Member States, while accommodating strong concerns or
objections by particular Member States to certain parts of it.
28
Examples over the years of such flexibility mechanisms include
the availability of extended transition periods, and, more
recently, a variety of arrangements listed under the heading of
“differentiated integration,” such as the opt-out for the U.K.
social policy under the Maastricht Treaty protocol; the opt-outs
for the Denmark, Sweden, and the United Kingdom from the
Economic and Monetary Union; the opt-outs for Denmark,
Ireland, and the United Kingdom from the area of freedom,
security, and justice; and more structured arrangements for
closer cooperation
29
or enhanced cooperation
30
under the
Amsterdam and Nice Treaties, respectively. Such mechanisms
have enabled a Member State that has particular concerns about
an amendment due to be introduced in a new EU treaty to ratify
the treaty despite its opposition by providing the state with an
exemption from the policy or provisions in question.
B. Unavailability of Unilateral Reservations
In international law, one of the key mechanisms used to
address the tension between the desire for widespread
ratification of a treaty and controversy among potential
signatories over its content is the possibility for states to enter a
28. Several book-length treatments of different aspects of this subject exist. See, e.g.,
G
RÁINNE DE BÚRCA & JOANNE SCOTT, CONSTITUTIONAL CHANGE IN THE EU: FROM
UNIFORMITY TO FLEXIBILITY (2000); BRUNO DE WITTE ET AL., THE MANY FACES OF
DIFFERENTIATION IN EU LAW (2002); FILIP TUYTSCHAEVER, DIFFERENTIATION IN
EUROPEAN UNION LAW (1999).
29. See generally Eric Philippart & Geoffrey Edwards, The Provisions on Closer
Cooperation in the Treaty of Amsterdam: The Politics of Flexibility in the European Union, 37 J.
OF
COMMON MKT. STUD. 87 (2002).
30. See generally Thomas Jaeger, Enhanced Cooperation in the Treaty of Nice and
Flexibility in the Common Foreign and Security Policy, 7 E
UR. FOREIGN AFF. REV. 297 (2002).
1480 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:1472
unilateral reservation to parts of the treaty.
31
Now governed in
part by articles 19 through 23 of the Vienna Convention on the
Law of Treaties (“Vienna Convention”),
32
reservations can
perform a similar function to that of ex-ante opt-outs in the EU
context by allowing states to sign onto and ratify a treaty even
while preventing the application to themselves of certain parts of
the treaty that they find objectionable.
The EU, however, with its closely integrated legal and
political system, does not appear to allow for this traditional
international law technique to be used by EU Member States in
relation to EU treaties. Although there has been, to my
knowledge, no academic or policy discussion of the possibility of
Member States using reservations to treaties within the EU
system, the very idea of unilateral reservations seems to conflict
with the nature of the legal and political community founded by
the EC treaties and with the assumption of collective
participation in a strong common project. It could perhaps even
be argued that the act of entering a unilateral reservation to an
EU treaty on the part of an EU Member State would, given the
nature of the European Union, be per se incompatible with the
object and purpose of the EU Treaty, under the terms of article
19(c) of the Vienna Convention.
33
Nevertheless, the same
tensions that give rise to the practice of reservations in
international law exist also within the EU. The practice that has
developed under EU law in response to these tensions, however,
involves a process of reaching collective agreement on the
making of a “declaration” or a supplementary legal “decision” to
try to address the concerns of the dissenting state, instead of
states unilaterally attaching reservations to an amending treaty.
C. Ex-Post Mechanisms: Declarations and Decisions
Where specific concerns are not identified or flagged by a
state during the process of negotiating a treaty, they cannot be
accommodated within the treaty itself through the mechanism of
31. See, e.g., Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15 (May 28) (concerning the
permissibility of reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide).
32. See Vienna Convention, supra note 14, arts. 19–23.
33. Id. art. 19(c).
2010] THE SECOND REFERENDUM PHENOMENON 1481
an ex-ante opt-out, but they may subsequently surface during the
domestic debate on ratification. Equally, when the concerns felt
by a particular state or its population do not relate to a specific
EU policy or issue from which an opt-out could realistically be
secured, but rather constitute a more general objection—for
example, to the perceived democratic deficit of the EU—they
cannot be addressed by means of a state-specific opt-out in the
treaty itself.
The response of the EU to situations of this kind—those in
which particular concerns were not identified during the
negotiation process and no opt-out was sought, or where the
nature of the concerns are such that they cannot be addressed by
a state-specific opt-out—has been to resort to intermediate
political and legal solutions such as a declaration or a decision
containing assurances. This was first seen in the response to the
Danish popular no-vote to the Maastricht Treaty in 1992.
34
After the Danish no-vote, which was the first time an EU
amending treaty was rejected by an existing Member State
following a popular ratification vote, the European Council
(composed of the heads of state and government of the EU
Member States) came up with a solution in the conclusions to its
Edinburgh meeting in 1992. Generally referred to as the
Edinburgh Agreement, it encompassed a decision and two
declarations.
35
In legal terms, part of this agreement was a
decision of the heads of state and government of the EU Member
States that, together with the declaration and the conclusions,
contained various assurances and clarifications vis-à-vis Denmark
on issues such as defense policy, Economic and Monetary Union
(“EMU”), EU citizenship, justice, and home affairs.
36
As a
decision of the heads of state and government, this was an
instrument that, despite its atypical nature within the EU legal
34. See Helle Krunke, Peoples’ Vengeance: From Maastricht to Edinburgh: The Danish
Solution, 1 E
UR. CONST. L. REV. 339, 345 (2005).
35. See Edinburgh European Council, Conclusions of the Presidency, Pt. B,
Annexes 1–3, 25 E.C.
BULL., no. 12, at 14 (1992); see also EU-Oplysningen, Edinburgh
Agreement, http://www.eu-oplysningen.dk/emner_en/forbehold/edinburgh (last
visited Aug. 18, 2010) (discussing the decision of the heads of state and government
meeting within the European Council in Edinburgh in 1992). An official copy of the
conclusions reached by the Council at Edinburgh is available on the European
Parliament’s website at http://www.europarl.europa.eu/summits/edinburgh/
default_en.htm.
36. See EU-Oplysingen, supra note 35.
1482 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:1472
system, was binding as a matter of international law, although it is
not entirely clear what effect a binding international law decision
of this kind could have on the provisions of an EU treaty.
37
No
part of the decision or declaration actually sought to change
existing law or to amend the EU treaties, but rather to offer
interpretative reassurance that the various concerns of Danish
voters in relation to citizenship, justice and home affairs, and
defense policy were satisfied by the terms of the new treaty.
38
The
political effect, on the other hand, was clear: a sufficient number
of Danish voters were evidently reassured by the assertions in the
declaration and decision that the relevant aspects of Danish
policy and sovereignty would remain unaffected,
39
and the
Maastricht Treaty was ratified following a second, successful
referendum.
40
In the case of Ireland’s no-vote to the Nice Treaty in 2001,
most of the arguments in favor of holding a second referendum
hinged on the poorly conducted campaign and the very low
turnout for the first referendum.
41
As has since become the
practice, an analysis of the no-vote was carried out with funding
from the European Commission,
42
and the various reasons for
the rejection of the treaty were identified as precisely as possible,
with a view toward enabling these issues to be addressed in the
campaign preceding a second referendum. The only declarations
made were by the Irish government and the European Council at
the Seville European Council meeting in June 2002. These
declarations concerned the EU Common Foreign and Security
37. See Defrenne v. Société Anonyme Belge de Navigation Aérienne Sabena
(Defrenne II), Case 43/75, [1976] E.C.R. 455, ¶ 58 (holding that the treaties could only
be amended in accordance with the procedure set out in article 48 of the Treaty on
European Union); see also Gavin Barrett, Guarantees on Lisbon Do Change Nature of Vote,
I
RISH TIMES (Dublin), June 30, 2009, at 14.
38. See Alexander Türk, The Lisbon Treaty After the Irish ‘No’ Vote: Ways Out of the
Impasse, http://www.lexisnexis.com/documents/pdf/20090514125647_large.doc.
39. See Nicolai Ronnebek Hinrichsen, The Constitutional Objection to European Union
Membership: A Challenge for the Danish Supreme Court, 15 B.U.
INT’L L.J. 571, 582–83
(1997).
40. See id. at 583.
41. See Brigid Laffan & Adrian Langan, Notre Europe, Securing a “Yes”: From Nice I
to Nice II at 3, 7, Policy Paper No. 13, Apr. 26, 2005, available at http://www.notre-
europe.eu/fileadmin/IMG/pdf/Policypaper13.pdf.
42. See generally Richard Sinnott, Attitudes and Behaviour of the Irish Electorate in the
Referendum on the Treaty of Nice (Feb. 26, 2003) (unpublished report, Univ. College
Dublin), available at http://www.ucd.ie/dempart/workingpapers/nice2.pdf.
2010] THE SECOND REFERENDUM PHENOMENON 1483
Policy, and their main purpose was to reiterate the nature and
status of Irish military neutrality and to provide reassurance given
that this was not threatened in any way by the Nice Treaty.
43
The
second campaign in favor of the treaty was more actively
conducted than the first, and the Nice Treaty was successfully
ratified following a second referendum held in October 2002.
44
Matters were somewhat more complicated in the case of
Ireland’s no-vote on the Lisbon Treaty in 2007. First, the Lisbon
Treaty was considerably more ambitious, more complex, and
more controversial than the Nice Treaty. Second, it was widely
known to be a formally de-constitutionalized and reorganized,
but substantially similar, version of the Constitutional Treaty,
which had unexpectedly been rejected two years previously by
referenda in France and the Netherlands.
45
This meant that the
option of resorting to a second referendum on the Lisbon Treaty
was politically more difficult than it had been in the case of the
Nice Treaty in 2001, or, indeed, in the case of the Maastricht
Treaty in Denmark in 1992, when the situation of a failed
popular referendum on an EU amending treaty was confronted
for the first time.
46
The particular circumstances of the Lisbon
Treaty, coming after the debacle of the Constitutional Treaty,
and at a time when popular opposition to the EU had grown in
Ireland, were much less easy to resolve by rapid resort to a
second referendum. Nonetheless, after extensive discussion of
the various options,
47
particularly as to whether Ireland should
43. See Seville European Council, Conclusions of the Presidency, Annexes 3–4, E.U.
B
ULL., no. 6, at 20–21 (2002).
44. See Peter Katz, The Treaty of Nice and European Union Enlargement: The Political,
Economic, and Social Consequences of Ratifying the Treaty of Nice, 24 U.
PA. J. INT’L ECON. L.
225, 226 (2003).
45. See Stephen C. Sieberson, Did Symbolism Sink the Constitution? Reflections on the
European Union’s State-like Attributes, 14 U.C.
DAVIS J. INT’L L. & POL’Y 1, 3 (2007) (stating
that there would be substantive similarities between the proposed Lisbon Treaty and the
EU Constitution); Dutch Say ‘Devastating No’ to EU Constitution, G
UARDIAN (London),
June 2, 2005, http://www.guardian.co.uk/world/2005/jun/02/eu.politics.
46. See Nicolai Ronnebek Hinrichsen, The Constitutional Objection to European Union
Membership: A Challenge for the Danish Supreme Court, 15 B.U.
INT’L L.J. 571, 582 (1997);
Ireland Rejects EU Expansion, BBC
NEWS EUROPE, June 8, 2001, http://news.bbc.co.uk/2/
hi/europe/1376379.stm.
47. See, e.g., H
OUSES OF THE OIREACHTAS [IRISH NATIONAL PARLIAMENT] SUB-
C
OMM. ON IRELAND’S FUTURE IN THE EUR. UNION, IRELAND’S FUTURE IN THE EUROPEAN
UNION: CHALLENGES, ISSUES AND OPTIONS (2008), available at http://euaffairs.ie/sub-
committee/sub-committeereport.pdf.
1484 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:1472
attempt parliamentary ratification of parts of the treaty, the
inevitable route of a second referendum was chosen.
48
This time
however, given the heightened controversy over the Lisbon
Treaty and the more active and engaged campaign which had
taken place prior to the first referendum, Ireland sought a
strengthened version of the usual declaration of reassurance.
The conclusions of the European Council meeting of June
2009 contain, in their annexes, two separate sets of measures
addressing Ireland’s position, as well as a declaration by the Irish
government setting out its own understanding of the legal effect
of the Lisbon Treaty.
49
The first of the two sets of measures is in
somewhat similar form to that adopted in relation to Denmark at
Edinburgh in 1992.
50
It is a statement by the EU heads of state
and government, which purports to “guarantee,” by means of a
binding decision, that nothing in the Lisbon Treaty affects in any
way the scope and applicability of the protection of the right to
life, family, and education in the Irish Constitution; affects the
EU’s existing competence in relation to taxation; or prejudices
Ireland’s policy of military neutrality.
51
The legal status of this
part of the declaration is further bolstered by the decision that it
is to be included in a future protocol to the EU treaties. Thus, it
is currently binding as a matter of international law as a decision
of the states, and it will, following its future enactment as a
protocol to one of the EU treaties, be made binding as a matter
of EU treaty law. Its content, however, is similar to the Edinburgh
Declaration in that it does not purport to alter or amend
anything contained in the Lisbon Treaty, but rather to provide
legal guarantees and assurance that the provisions of the Lisbon
Treaty, properly interpreted, do not contain anything that
threatens these sensitive areas of Irish law and policy.
52
The
48. See Eric Pfanner & Sarah Lyall, Irish Vote for Treaty Centralizing Power in the
European Union, N.Y.
TIMES, Oct. 4, 2009, at A6 (stating that Irish voters approved the
Lisbon Treaty on October 3, 2009); see also Gavin Barrett, Is a Second Referendum
Appropriate in order to Allow Ireland to Ratify the Treaty of Lisbon? (Univ. College Dublin
School of Law, Working Paper, 2008), available at http://ssrn.com/abstract=1263300
(discussing the possibility of a second referendum and whether this would be feasible
and appropriate to secure Irish ratification of the Lisbon Treaty).
49. See Brussels European Council, Presidency Conclusions, Annexes 1–3, E.U.
B
ULL., no. 6, at 14–17 (2009).
50. See supra note 35 and accompanying text.
51. See E.U.
BULL., supra note 49, at 15.
52. See id. at 9.
2010] THE SECOND REFERENDUM PHENOMENON 1485
second part of the declaration does not purport to be a legally
binding decision, but merely a declaration that confirms the high
importance attached by the EU to workers rights and social
progress, and related matters, and recalls the relevant provisions
of the EC and EU treaties as amended by the Lisbon Treaty.
53
The third part of the European Council package is the
declaration by Ireland itself, which, like the Irish Declaration on
the Nice Treaty at Seville,
54
asserts Ireland’s understanding that
its policy of military neutrality will remain unaffected by the
changes to be introduced in the Lisbon Treaty.
55
Declarations and decisions of this kind have now been used
on several occasions by the EU, and although they have
apparently contributed to a successful second referendum result
each time, they remain an essentially ad hoc and legally
uncertain response which does not address the fundamental
concerns about the practice of holding a second referendum. In
other words, while they seek to isolate and address the specific
concerns of the population of the Member State which rejected
the EU treaty and aim to overcome the claim that a second
referendum is undemocratic, they remain unsatisfactory in
several key respects. First, decisions and declarations cannot have
the effect of amending the treaty whose ratification has been
rejected, which means they are limited to providing either an
interpretative declaration, or a purported legal guarantee whose
effect amounts to little more than an interpretative declaration.
It is far from clear whether or to what extent the Court of Justice
in the future would read such a declaration as controlling or
influencing the interpretation of a provision of the treaty itself.
Second, it remains the case that the outcome of the procedure
laid down for EU treaty amendment is not being respected, and
that recourse to ad hoc mechanisms is regularly sought to
sidestep the unwanted results of a legitimate process.
CONCLUSION
The repeated resort—three times in just over fifteen years—
to a second national referendum in the context of EU treaty
53. See id. at 15–16 (Annex 2).
54. See supra note 43 and accompanying text.
55. See E.U.
BULL., supra note 49, at 16–17 (Annex 3).
1486 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:1472
change, where the result of a first referendum has been the
rejection of a proposed EU treaty, remains a controversial and
troubling practice. The root cause of the imposition of such
pressure on Member States in the position of Denmark and
Ireland, whose populations have refused the proposed
ratification of an EU treaty, is the distinctive and demanding EU
mechanism for treaty amendment. The most obviously onerous
dimension of this mechanism is the double-unanimity
requirement of unanimous Member State consent and domestic
ratification, but it is the combination of this requirement of
unanimous consent and domestic ratification with a number of
other distinctive features of the EU constitutional process that
renders the problem particularly acute. The first of these is the
fact that the constitutions or legal systems of several Member
States provide that a popular referendum is necessary to ratify
certain kinds of fundamental EU treaty change.
56
The second is
the fact that several of the flexible options which are available
under international law are not permitted within the more tightly
integrated EU legal system. More specifically, there is no
possibility for the provisional application of an EU amending
treaty following its ratification by a specified majority of Member
States,
57
and the international law regime of unilateral state
reservations to treaties has not been applied within the EU
context.
58
Ultimately, this means that a Member State’s objection
to certain parts of a new EU treaty cannot be accommodated
other than by means of an ex-ante negotiated opt-out, or by the
convoluted and legally unsatisfactory means of an interpretative
declaration or decision of the heads of state and governments.
Are there possible solutions to this apparent dilemma, or is
the EU likely to continue the use of this dubious practice again in
the future? It is certainly the case that, following the failed
constitutional treaty and the enactment of the Lisbon Treaty,
there is no political appetite for further EU treaty reform for
56. See, e.g., Simon Hug & Pascale Sciarini, Referendums on European Integration: Do
Institutions Matter in the Voter’s Decision?, 33 C
OMP. POL. STUD. 3, 13–21 (2000); Patricia
Roberts-Thompson, EU Treaty Referendums and the European Union, 23 J.
OF EUR.
INTEGRATION 105, 113–16 (2001).
57. See de Witte, supra note 12, at 71–82.
58. See discussion supra Part II.B.
2010] THE SECOND REFERENDUM PHENOMENON 1487
quite some time.
59
On the other hand, when the time for another
EU treaty change does arise, even if it concerns only a treaty
governing accession of a new Member State, the risks of the
multiple veto points are likely to arise and move to center stage
again. A first and perhaps most obvious solution would be to
amend the procedure for EU treaty revision and, in particular, to
abandon the requirement for unanimous Member State consent.
This is a highly politically controversial issue, but one which has
nonetheless recently been mooted as a consequence of the
repeated experience of no-votes in popular referenda. First, the
EU treaty, as amended following the Lisbon Treaty, contains a
somewhat open-ended provision—similar to that which was
contained in the Treaty Establishing a Constitution for Europe—
in article 48(5), which stipulates that “if, two years after the
signature of a treaty amending the Treaties, four fifths of the
Member States have ratified it and one or more Member States
have encountered difficulties in proceeding with ratification, the
matter shall be referred to the European Council.”
60
While this
does not amount to a relaxation of the requirement of
unanimous consent, it at least opens up the possibility of a
scenario in which a majority of the Member States can seek a
political way of moving ahead with the ratification of a treaty
which has not been approved by all Member States.
Second, the prospect of formally amending the process for
EU treaty ratification and removing the unanimity requirement
has recently been mooted and analyzed in legal and policy
circles.
61
But there is clearly no immediate political energy to
59. In their communiqué in December 2007, following the signing of the Lisbon
Treaty, the EU heads of state and government declared that “[t]he Lisbon Treaty
provides the Union with a stable and lasting institutional framework. We expect no
change in the foreseeable future, so that the Union will be able to fully concentrate on
addressing the concrete challenges ahead . . . .” Brussels European Council, Presidency
Conclusions, E.U. B
ULL., no. 12, at 10 (2007).
60. TEU post-Lisbon, supra note 13, art. 48(5), 2008 O.J. C 115, at 42. It is unclear,
however, what legal consequences would flow from such a referral or whether a treaty
amendment could come into force when only four-fifths of the Member States had
ratified.
61. See Bribosia, supra note 21, at 7–14; see also E
UR. UNIV. INSTIT., ROBERT
SCHUMAN CTR. FOR ADVANCED STUDIES, REFORMING THE TREATIES’ AMENDMENT
PROCEDURES: SECOND REPORT ON THE REORGANIZATION OF THE EUROPEAN UNION
TREATIES 11–14 (2000), available at http://www.eui.eu/RSCAS/Research/Institutions/
2ndrapport_UK.pdf (describing the earlier proposal for improving amendment
procedures).
1488 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 33:1472
undertake such a major and controversial reform, and it is
difficult to imagine EU Member States agreeing to it. The second
option would be for all of the Member States to abandon the
requirement of a popular referendum for the ratification of EU
treaties, regardless of the possible impact of any such treaty on
the national constitutional systems. This, however, is not
something that can be stipulated as a matter of EU law, and it is
for each Member State to decide for itself what its domestic
ratification process for EU treaties should be, which makes it a
difficult target for Europe-wide reform. Furthermore, the various
domestic referenda concerning ratification of EU Treaties have
provided some of the few occasions for real public engagement
and debate on EU matters, countering the normal voter apathy
and disinterest in EU affairs that has been such an intractable
part of the democratic deficit.
62
One innovative proposal for
reform, which was put forward by a group of members of the
Convention charged with drafting a constitutional treaty for the
EU in 2004, was to substitute the system of individual national
ratification procedures with a European-wide popular
referendum.
63
Unfortunately, this proposal—which would have
retained the valuable element of democratic and popular
legitimacy provided by domestic referenda, but simultaneously
avoided some of the pitfalls of second-order voting that takes
place during domestic referenda on EU issues
64
—was not acted
upon by the Convention presidency, which meant that this
interesting and promising reform proposal fell by the wayside.
65
The requirement of double-unanimity—unanimous state
consent and unanimous national ratification—before an EU
62. See Nick Clark & John Hulsey, The Salience of EU Issues: Explaining Political
Behavior in European Parliament Elections, 10th Biennial Meeting of the European Union
Studies Association, at 2 (2007), available at http://aei.pitt.edu/7786/01/clark-n-
02h.pdf (noting that average EU voter turnout has been declining but that the Irish and
Dutch referendums produced a much higher turnout than normal); see also Thomas
Risse & Mareike Kleine, Assessing the Legitimacy of the EU’s Treaty Revision Methods, 45 J.
OF
COMMON MKT. STUD. 69, 70–79 (2007).
63. See Referendum on the European Constitution: Adoption, Ratification and Entry into
Force Procedure, Secretariat, European Convention, Contribution Submitted by Several
Members, Alternate Members and Observers, Annex, No. CONV 658/03 (Mar. 31,
2003), available at http://register.consilium.europa.eu/pdf/en/03/cv00/
cv00658.en03.pdf.
64. See John Garry et al., ‘Second-order’ Versus ‘Issue-voting’ Effects in EU Referendums, 6
E
UR. UNION POL. 201, 203–05, 215–16 (2005).
65. See de Witte, supra note 12, at 76–80.
2010] THE SECOND REFERENDUM PHENOMENON 1489
treaty can come into force has been a central part of the
consensus-building as well as the trust- and community-building
that has been an essential aspect of the development of the EU’s
uniquely densely integrated political and legal system. Yet it
seems clear that the decision to consider and confront the
possibility of relaxing the absolute nature of the double-
unanimity requirement is one which can only be postponed, but
cannot ultimately be avoided, given how unsatisfactory and
unsustainable the second-referendum practice has been to date.
