¹ See Art 1–59 (1) of the Draft Convention: Conv 724/03 Annex 1 and see below for a fuller discussion.Google Scholar

² Ibid, Art 1–59 (2). The State seeking to withdraw can take no part in the Council or European Council discussion or decisions concerning it.

³ Ibid, Art 1–59 (3).

⁴ It should be noted that the EU represents a unique departure in international law and as such, the applicability or otherwise of the law of treaties may be moot, particularly given the view of the ECJ and the doctrine of supremacy discussed below, see in particular Costa v ENEL, ibid.

⁵ Art 56 states: ‘ 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. 2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under para 1', Vienna Convention on International Treaties UN Doc A/Conf 39/28, UKTS 58 (1980) 8 ILM 679.Google Scholar

⁶ Or the very nature of the Treaty implies such a right to withdraw: this does not seem relevantv to the EU treaties.Google Scholar

⁷ Reuter, PIntroduction to the Law of Treaties (LondonPinter Pub 1990) 128, para 233.Google Scholar

⁸ Waldock, YILC 1966, vol II, 250.Google Scholar

⁹ In contrast, the relatively limited scope of the founding Treaties might lend itself more to the presumption that the parties did not intend for unilateral withdrawal rights.Google Scholar

¹⁰ See, eg, Crotty v An Taoiseach [1987] ILRM 400.Google Scholar

¹¹ Although see the 1975 referendum in the United Kingdom on whether to remain within the EU. On a turnout of 64.5 per cent, there was a yes vote in the order of 67.5 per cent.Google Scholar

¹² See, eg, EU (Implications of Withdrawal) Bill [HL] 16 Dec 2000 in the United Kingdom.Google Scholar

¹³ C Sunstein ‘Constitutionalism and Secession’ 58 U Chi Law Rev 633 (1991).Google Scholar

¹⁴ The American Civil War arose over the attempted secession of southern states from theUnion and the issue of Quebec's potential departure from the Canadian federation has long been to the forefront. In addition, closer to home, the ending of the Soviet Union might also prove instructive.Google Scholar

¹⁵ See generally, Weiss, F ‘Greenland's withdrawal from the European Communities’ (1985) 10 EL Rev 173Google Scholar

¹⁶ See generally, Kramer ‘Greenland's European Community referendum, background and consequences’ 25 GYIL 273 (1982)Google Scholar

¹⁷ See Act No 577, 29 Nov 1978Google Scholar

¹⁸ Bull EC Supp 1/83, 6Google Scholar

¹⁹ COM (83) 66 finalGoogle Scholar

²⁰ EP Doc 1–264/83, 17Google Scholar

²¹ COM (83) 593 final, para 3Google Scholar

²² OJ L 29 (1 Feb 1985Google Scholar

²³ Although the parliamentary minority did raise objections, see ibid

²⁴ Currently OCT status is to be found in Art 182–8Google Scholar

²⁵ See generally, Alter, KEstablishing The Supremacy Of European Law (OxfordOUP 2002)Google Scholar

²⁶ Case 6/64 [1964] ECR 585Google Scholar

²⁷ Art VI, US Constitution: ‘This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.’ It should be noted that Art 10 of the EC Treaty does impose an obligation on Member States to ensure the fulfilment of the Treaty objectives and to refrain from measures jeopardizing these objectivesGoogle Scholar

²⁸ Case 6/64 [1964] ECR 585, 590Google Scholar

²⁹ Although see the discussion of international law above, n 2Google Scholar

³⁰ For a common law perspective outside of the United Kingdom, see Massey ‘The Locus of sovereignty: Judicial review, legislative supremacy and Federalism in the constitutional traditions of Canada and the United States’ [1990] Duke LJ 1229Google Scholar

³¹ R v Secretary of State for Transport, exparte Factortame Ltd [1991] 1 All ER 70 (granting of interim relief—an injunction—against the operation of a State law which was in conflict with a Union law)Google Scholar

³² Ibid, at 84.

³³ McCarthys Ltd v Smith [1979] 3 All ER 325 (case concerning interpretation of equal pay legislation to be determined on traditional common law rules of interpretation—plain meaning—or on the basis of Union intent. Held: Union intent took priority over plain meaning)Google Scholar

³⁴ The approach of Member State courts is not limited to that of the United Kingdom, the UK has simply been significantly more honest and open around the discussion. Similar difficulties with secession are to be found in the jurisprudence of other Member States, in particular France; see Administration des Douanes v Societe Cafes Jacques Vabre & J Weigel et Cie SARL [1975] 2 CMLR 336; Union Democratic du Travail ADJA (1980) 40 (22 Oct 1979); Societe Bernard Carant (27 Apr 1988–noted in Sixth annual report OJ (1989) C 330/54); Cohn The Conseil d'Etat: continuing convergence with the court of justice 16 ELREV 144; Roseren The application of Community Law by French courts from 1982 to 1993 31 CMLREV 315; Boisdet [1991] 1 CMLR 3; Decision No 92–554 of 9 Apr 1992, JCP 1992. J 162 Rev gen Dr int'l pub 1992.507; [1993] 3 CMLR 345, paras 21852–4; and Art 88 of the Constitution.Google Scholar

³⁵ First Inaugural Address (4 Mar 1861), reprinted in TH Williams (ed) Selected Writings and Speeches of Abraham Lincoln 111 (Chicago Packard 1943). For Lincoln's own views including his contradictory belief in the right of revolution, see Presley ‘Bullets and ballots: Lincoln and the right of secession’ (1962) 67 Am Hist Rev 647; Abbott ‘The Lincoln Propositions and the Spirit of Secession’ (1996) 10 Stud Am Pol Dev 103Google Scholar

³⁶ Above, n 6Google Scholar

³⁷ Almost all of the Declarations of Causes by the confederate States complained about federal breaches of constitutional obligations and limits. The national government was cited for ‘dangerous infractions of the Constitution’. In the case of Texas they stated: ‘By the disloyalty of the Northern States and their citizens and the imbecility of the Federal Government, infamous combinations of incendiaries and outlaws have been permitted in those States and the common territory of Kansas to trample upon the federal laws, to war upon the lives and property of Southern citizens in that territory, and finally, by violence and mob law, to usurp the possession of the same as exclusively the property of the Northern States.’ At <http://members.aol.com/jfepperson/reasons.html> last visited 6 Nov 2002. See also <http://www.cwc.lsu.edu/> last visited 6 Nov 2002+last+visited+6+Nov+2002.+See+also++last+visited+6+Nov+2002>Google Scholar

³⁸ Under the Treaty with Great Britain ending the War of Independence dated 3 Sept 1783, Her Majesty's Government in Art 1 recognizes the thirteen colonies as ‘free sovereign and independent States’, although this may have been a tactic by Great Britain to set up a divide and conquer scenario, which partially came true in the civil war as Great Britain sided, albeit in a limited way, with the confederacy. See generally Berger Federalism, The Founders Design (Norman, OK University of Oklahoma Press 1987) for a counter argument, that the original thirteen colonies were not States and therefore do not predate the United States.Google Scholar

³⁹ Above n 9.Google Scholar

⁴⁰ South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, North Carolina, Tennessee, Missouri, and Kentucky.Google Scholar

⁴¹ 5 US (I Cranch) 137, 2 L Ed 60 (1803).Google Scholar

⁴² See Amar ‘Of sovereignty and federalism’ (1987) 96 Yale LJ 1425.Google Scholar

⁴³ 74 US 700, 724–6 (1869) (the putative secession of Texas from the Union ruled unconstitutional based on an interpretation of the federal Constitution which constituted a waiver on the part of the states, including Texas, of the right to secede). See also A Reed Amar ‘Some New World Lessons for the Old World’ 58 U Chi L Rev 483, 501–2 and n 68 (1991) (discussing secession); D Currie The Constitution in the Supreme Court: The First 100 Years 1789–1888 (Chicago, IL University of Chicago Press 1990).Google Scholar

⁴⁴ Ibid. This use of ‘perpetual’ in the precursor Articles of Confederation also provided a strong basis for an implicit concept of indissolubility referred to by Abraham Lincoln in his inaugural address, see n 35. Of course the phrase ‘to form a more perfect Union’ and the perpetual nature of the entity being created are concepts familiar to European lawyers.

⁴⁵ Ibid

⁴⁶ See websites such as <www.freehawaii.org and www.calrepublic.tripod.com>..>Google Scholar

⁴⁷ In more recent times, this view has been contested, see Vipond, RLiberty and Community: Canadian Federalism and the Failure of the Constitution (Albany, NY State University of New York Press 1991);Google ScholarSmith, J ‘Canadian Confederation and the Influence of American Federalism’ (1988) 21 Can J Pol Sci 443;CrossRefGoogle ScholarBaker, GB ‘The province of post confederation rights’ 45 University of Toronto LJ 77(1995).Google Scholar

⁴⁸ Although not necessarily creating a strong national identity.Google Scholar

⁴⁹ Changes included the withdrawal, or restriction, of national government from, inter alia, provincial control, foreign relations, equalization payments and fiscal control. The British North America Act has been repatriated to Canada as its constitution under the Canada Act 1982 Eliz c 11 (UK). Quebec failed to ratify this newly repatriated constitution.Google Scholar

⁵⁰ See generally, Latouche, DCanada and Quebec, Past and Future: An Essay (TorontoUniversity of Toronto Press 1986);Google ScholarMcwhinney, EQuebec and the Constitution 1960–1978 TorontoUniversity of Toronto Press 1986);Google Scholar

⁵¹ Reference re Secession of Quebec from Canada (1998) 161 DLR (4th) 385.Google Scholar

⁵² See Hogg, PConstitutional Law of Canada (4th edn TorontoCarswell 1997) at 5–30–5–37.Google Scholar

⁵³ See generally Rayfuse ‘Reference re secession of Quebec from Canada: Breaking up is hard to do’ 21 UNSW LJ 834 (1998);Google ScholarMullan, D ‘Quebec Unilateral Secession Reference: A ruling that will stand the test of time’ (1998) 9 Pub L Rev 231.Google Scholar

⁵⁴ Originally there were four Union republics: Russia, Ukraine, Belorusa, and the Transcaucasian Federation. This would later rise to a total of fifteen Union republics.Google Scholar

⁵⁵ 1977 Constitution of the USSR, Art 70.Google Scholar

⁵⁶ Ibid, Art 76.

⁵⁷ Ibid Art 80.

⁵⁸ Meeting between the Presidents of Russia, Belarus and the Ukraine. See text in (1992) 31 ILM 138.Google Scholar

⁵⁹ The so called Alma—Ata Summit, see above, n 57 for text. See also, Voitovich, SA ‘The Commonwealth of Independent States: An emerging institutional model’ (1993) 4 EJIL 403.CrossRefGoogle Scholar

⁶⁰ The Declaration of European Community Foreign Ministers 27 Aug 1991 (Brussels) refers to the ‘restoration of sovereignty and independence of the Baltic States’.Google Scholar

⁶¹ See the situation in Lithuania, referred to above.Google Scholar

⁶² The so called Lacken Declaration, accessible at <http://european-convention.eu.int/pdf/LKNEN.pdf> last visited on 8 Apr 2003.+last+visited+on+8+Apr+2003.>Google Scholar

⁶³ Although it should be noted that the submission does not carry either the support or agreement of Her Majesty's government.Google Scholar

⁶⁴ Submission by Peter Hain (UK) of draft Dashwood treaty on Union by Professor Alan Dashwood: at <http://register.consilium.eu.int/pdf/en/02/cv00/00345en2.pdf> last visited 28 Oct 2002.+last+visited+28+Oct+2002.>Google Scholar

⁶⁵ Ibid, at 49

⁶⁶ Although Dashwood indicates in the commentary that the exact role of the Parliament might be enhanced, for example requiring its assent to any such modifications, see Ibid, at 49.

⁶⁷ Conv 235/02.Google Scholar

⁶⁸ Ibid, at 6 although it is not strictly true to say that a federal form of government automatically has to prohibit secession. K Wheare Federal Government (Oxford OUP 1963) 85–7 (a right to secede is consistent with a federal system of government). Of course permitting secession must be seen as a last resort if the political will to work through problems is to be sufficiently focused.

⁶⁹ Ibid, at 8. The federal model is rejected as being one unlikely to be acceptable to the people of Europe. Essentially the argument is that while the people of Europe are supportive of the component parts of the Union, they may balk at a model that would present these component parts as a whole.

⁷⁰ Ibid, at 6. The confederal model is rejected as being unworkable as the Union enlarges. The argument is that the confederal model would greatly exacerbate the current difficulties of the Union as the number of States increased, in particular it would enlarge the democratic deficit, reduce accountability, heighten conflict between States and so forth.

⁷¹ Ibid, at 12, this would be much closer to the Badinter formulation, see n 45.

⁷² Submission by M Robert Badinter at <http://register.consilium.eu.int/pdf/en/02/cv00/00235en2.pdf> last visited on 28 Oct 2002.+last+visited+on+28+Oct+2002.>Google Scholar

⁷³ 531 US 2000.Google Scholar

⁷⁴ See the procedural analysis below.Google Scholar

⁷⁵ The Opinion of the Commission on the Draft Constitution in its entirety states that there are ‘some imprecise and ambiguous wording’, see COM (2003) 548, at 4.Google Scholar

⁷⁶ Note that the Commission Opinion on the Draft Constitution criticizes the unanimity requirement for constitutional amendment, see COM (2003) 548.Google Scholar