Monday, December 21, 2009

The Czechs on the Lisbon Treaty

The Czech President, Vaclav Klaus, has good reason for delaying ratification of the Lisbon Treaty. Clearly the Czech Republic needs an opt-out or exemption from the hazards of the Charter of Fundamental Human Rights - and ideally it should be entrenched, so as to be irrevocable. Only when all the E.U. countries have considered that request and agreed to it would it be reasonable for President Klaus to consider ratifying the Lisbon Treaty. A chorus of protests has emerged from supporters of the Treaty, pointing out that the Czech Government had not raised the matters now causing difficulty during the negotiations over the Treaty's text. Frankly that shows the ineptitude of the Czech Government, for the dangers which President Klaus has pointed out are real - not hypothetical - and certainly are disruptive.

Unless President Klaus's points are taken seriously, Sudeten German refugees, or their descendants, could easily claim under the terms of the Charter of Fundament-
al Human Rights compensation for the loss of their property when they were expelled from Bohemia and Moravia in 1945. Individual contests over such claims would be cumbersome, repetitive, and expensive, and would certainly provoke resentment and inflame emotions. International tensions would be aroused. The least troublesome method of dealing with such compensation claims would be the negotiation of a treaty between the Federal German Republic and the Czech State. The sums involved would be massive and the terms for assessing and paying such compensation would be complex, while the payments themselves would probably have to be made by instalments over several years. It might well be desirable for the United Nations to be asked to appoint a mediator to assist with these matters.

The ultra federalists in Europe are running the risk of reigniting one of the continent's bitterest disputes by ignoring the issue and hoping that conventional
litigation in the courts would resolve the problems. The Czech Republic urgently needs protection from that contingency, and, equally urgently, the German State needs to consider starting negotiations with the Czechs on the thorny issue of a compensation scheme. It is understandable that many people still view the record of the German Nazis in World War II as justifying the expropriation of Sudeten German
property without compensation as wholly justified. However, such a contention
would be hard to justify in courts operating a system of "Fundamental Human Rights." Special measures outside the ambit of the normal network of courts, but sanction-
ed by an international agreement and legislation in the two states concerned, would appear to be inevitable. The current predicaments in Northern Cyprus and in the
territories occupied by Israel, notably on the West Bank, do not not provide
encouraging parallels with the looming Sudeten claims, but they certainly highlight the difficulties that lie ahead.

Truly the only sane and peaceful solution is for the E.U. to accede to President Klaus's requirements and somehow to persuade Federal Germany and the Czech
Republic to open negotiations for the payment of compensation.

There are those who will regard this course of action as a device, designed by opponents of the Lisbon Treaty to delay ratification until after the date of the next general election in the United Kingdom, following which there could be a referendum on rejecting what had been decided at Lisbon. That may be an accurate view of some people's thinking, but the failure to treat the Sudeten Germans' quest for compensation is a potentially explosive issue. President Klaus's stance would go far towards achieving a negotiated settlement by effectively preventing litigation on the subject matter in the Czech courts, thus leaving direct discussions with
Federal Germany as the realistic course towards an acceptable outcome. Inevitably any opt-out for the Czechs would need to be entrenched and made irreversible, just as the United Kingdom's "redlined " opt-outs should have been. The failure of the British Prime Minister to demand and secure such a safeguard that regard was a disastrous dereliction of his duty to protect British interests. At least President Klaus is showing wisdom and courage, and setting an example which the member states of the European Union would do well to follow.


Postscript:
Since the above was written, the twenty-six powers have agreed to grant an opt out to the Lisbon Treaty in respect of the Charter of Fundamental Rights, so as to debar the making of claims for compensation by Sudeten Germans for the loss of property which they sustained when they were expelled from Bohemia and Moravia in 1945. Although this concession was not entrenched, as ideally it should have been, it was a tremendous vindication of President Klaus's stand.He has now signed the Treaty, which is due to take effect on 01 / 12/ 2009.

Michael B. Buck. 06 / 11/ 2009.

The further issue, of entrenching certain basic safeguards such as the one which so disturbed President Klaus, is clearly going to cause many more difficult-
ies. David Cameron has now declared his intention of enacting a statute in the United Kingdom, if he were to win the next general election, providing that no further constitutional changes should be made to the European Union without the consent of the British people, expressed in a referendum. That would certainly help to avoid the predicament of a partisan government committing a reluctant nation to a controversial and unpopular E.U. constitutional change,but that alone would be insufficient, for an Act alone would always be liable to repeal.David Cameron's intended initial statute would need to be buttressed by a referendum decision endors-
ing the terms of the Act.This would be the equivalent to a term in a written constitution, which the the U.K. currently lacks. Any attempt to destroy that effectively entrenched measure would have to surmount the hurdle of persuading the British electorate to cancel the initial Act, backed by its confirmatory referendum, which would be very hard to achieve.

So as to ensure that the Ultra Federalists understand how seriously the U.K.'s voters view the issue of any further changes in the 'constitution' or organizational structure of the E.U. which would purport to transfer more powers and functions to the Union, the initial Act should specify both the newly proposed changes and also
those "redlined matters," for which the UK secured opt-outs from the Lisbon Treaty,(although they were not entrenched). The purpose of doing so would be to create a class of triggering factors, any threat to which would be treated by the U.K. as a fundamental threat to continued membership of the E.U. Thus the lack of entrenchment within the terms of the E.U.would be replaced by a de facto protection, the prospect of secession. Of course it would require great care and skill on the part of the U.K. Government in negotiations in wielding the threat of withdrawal, but it should cause the Ultra Federalists to think many times before attempting to secure further powers and functions from E.U. members provided that the Act of Parliament making the change was based on a referendum, for an act alone would always be liable to repeal.

What many, probably most, British people seek in this affair is the emergence of an E.U., much more in line with what was envisaged in 1975 in the U.K.'s referendum of that year, a free association of independent states, which would deal pragmatically with certain functions on a federal basis, but would otherwise remain sovereign entities, cooperating closely on matters of common concern.

There is,of course, a strongly defeatist view at present which claims that to
continue to campaign against the changes implemented by ratification is futile. Those who believe this are in effect saying that a frontal attack against remaining a member of the E.U. is the only course left to those who formerly opposed the Lisbon Treaty, and that in any event such a campaign would fail. To the extent that they see the real issue as being Britain's withdrawal from the Union they have a point, since that prospect is the only one that would provide Eurosceptics and other opponents with real leverage. However, The threat of withdrawal from the European Union, if exercised carefully and skilfully - unlike the late George Brown's threat to to resign from his post as Foreign Secretary - could prove fruitful. Even ultra-Federalists such as Sarkozy and Merkel would prefer not to contemplate secession by the United Kingdom, so some genuine efforts to compromise would be forthcoming. It is unlikely that David Cameron or William Hague would make empty threats to leave the E.U., so the presence in a UJ.K. referendum of words treating a failure to reach satisfactory tems on an entrenched opt-out

For the present Vaclav Klaus's success is underrated, yet it has marked the frailty of the ultra federalists' position, since the alacrity and speed with which the Czech President's demands were met, in order to secure ratification. Had there been time for the holding of a British referendum on the Lisbon Treaty, ratification would never have been attained.


Michael B. Buck.

Thoughts on the Lisbon Treaty

Since the article on ‘The Lisbon treaty And The Czech Crisis’ was written, the twenty-six powers have agreed to grant an opt- out to the Lisbon Treaty in respect of the Charter of Fundamental Rights, so as to debar the making of claims for compensation by Sudeten Germans for the loss of property which they sustained when they were expelled from Bohemia and Moravia in 1945. Although this concession was not entrenched, as ideally it should have been, it was a tremendous vindication of
President Klaus's stand. He has now signed the Treaty, which is due to take effect on 01 / 12/ 2009.

The further issue, of entrenching certain basic safeguards, such as the one which so disturbed President Klaus,is clearly going to cause many more difficulties. David Cameron has now declared his intention of enacting a statute in the United Kingdom, if he were to win the next general election, providing that no further constitutional changes should be made to the European Union without the consent of the British people, expressed in a referendum. That would certainly help to avoid the predicament of a partisan government committing a reluctant nation to a controversial and unpopular E.U. constitutional change, but that alone would be insufficient, for an Act alone would always be liable to repeal. David Cameron's intended initial statute would need to be buttressed by a referendum decision, endorsing the terms of the Act.This would be the equivalent to a term in a written constitution, which the the U.K. currently lacks. Any attempt to destroy that effectively entrenched measure would have to surmount the hurdle of persuading the British electorate to cancel the initial Act, backed by its confirmatory referendum, which would be very hard to achieve.

So as to ensure that the Ultra Federalists understand how seriously the U.K.'s voters view the issue of any further changes in the 'constitution' or organizational structure of the E.U. which would purport to transfer more powers and functions to the Union, the initial Act should specify both the newly proposed changes and certain other matters. These would include the so called "red-lined matters," for
which the UK secured opt-outs from the Lisbon Treaty, (although they were not entrenched), and also any further proposed transfers of powers and functions from member states to the E.U. The purpose of doing so would be to create a class of triggering factors, any threat to which would be treated by the U.K. as a fundamental threat to continued membership of the E.U. Thus the lack of entrenchment within the terms of the E.U.would be replaced by a de facto protection, the prospect of secession. Of course it would require great care and skill on the part of the U.K. Government in negotiations in wielding the threat of withdrawal, but it should cause the Ultra Federalists to think many times before attempting to secure further powers and functions from E.U. members.

What many, probably most, British people seek in this affair is the emergence of an E.U., much more in line with what was envisaged in 1975 in the U.K.'s referendum of that year, a free association of independent states, which would deal pragmatically with certain functions on a federal basis, but would otherwise remain sovereign entities, cooperating closely on matters of common
concern.

Michael B. Buck. 10 / 11/ 2009.