Professor Federico Fabbrini (Full Professor of EU Law & Founding Director of the Dublin European Law Institute, DCU)

Yes! The European Defence Community (EDC) was established by a Treaty concluded between 6 states: the Netherlands, Belgium, Luxembourg, France, Italy and the Federal Republic of Germany.  The EDC Treaty was signed in Paris, at the Quai d’Orsay, on 27 May 1952 by the Prime Ministers of the high contracting parties. Article 131 EDC Treaty required all 6 member states to ratify the treaty in accordance with their constitutional rules in order for the EDC to enter into force – and 4 out of 6 states promptly ratified it. In Germany, the Constitutional Court upheld the constitutionality of the EDC Treaty in a judgment delivered on 7 March 1953, paving the way to the ratification by the German Bundestag on 19 March 1953, and the German Bundesrat on 15 May 1953. The Netherlands ratified the EDC Treaty on 23 July 1953, Belgium on 26 November 1953, and Luxembourg on 7 April 1954. For political reasons, the ratification process however was delayed in Italy and France. Italy had no fundamental objections to the ratification of the EDC, but sought to leverage its consent to the treaty to get concessions on the status of the city of Trieste – which then remained under limbo. However, on 30 August 1954 the Assembly of the French Fourth Republic voted by a 319-to-264 vote to postpone the discussion on the ratification of the EDC Treaty.

Yet, the demise of the EDC may have been called too soon. As I explained in a longer paper, from a legal viewpoint, the EDC Treaty could be revived. Since 4 states out of 6 voted for it, and never rescinded their ratification, it would only take France and Italy to also approve the Treaty for the EDC to become operational – today. From a public international law point of view, once a treaty is signed and ratified, it is not dead for the states that have expressed their consent to be bound by it – even if the treaty has not yet entered into force. The 1969 Vienna Convention on the Law of the Treaties (VCLT) – an agreement which is regarded as largely codifying customary international law – is clear on the matter. According to Article 14 VCLT, “[t]he consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to be expressed by means of ratification.” At the same time, Article 55 VCLT clarifies that “[u]nless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force.” Finally, the VCLT also provides rules on the denunciation of treaties, or the withdrawal therefrom, with Article 65 VCLT introducing a mandatory procedure to denounce or terminate a treaty, which includes notifying the other parties of the intention to no longer be bound by the treaty. In light of the above, it appears that the EDC Treaty – while not in force – still technically binds the 4 member states that ratified it. Since Germany, Belgium, the Netherlands and Luxembourg ratified the EDC treaty – in accordance with Article 14 VCLT – and never denounced it – as foreseen by Articles 56 and 65 VCLT – the treaty is still alive for them.

At the same time, from a domestic constitutional law point of view, there is nothing that would prevent Italy or France from voting on the ratification of the EDC Treaty today. In Italy, the Parliament was never called to vote on the EDC and Article 11 of the 1948 Constitution compels the state to participate in international      organizations designed to secure peace. In France, the 1958 French Constitution is open to the conclusions of international agreements, and since 1992, it includes specific provisions on membership in the EU. Moreover, there is no written rule – either in the Constitution, or in the laws regulating the functioning of Parliament, or indeed in the standing orders of the National Assembly or the Senate – that would prevent Parliament from considering the EDC Treaty anew. The current standing order of the French National Assembly regulates in Articles 128 and 129 the mechanisms by which the Assembly votes on international treaties, and only states that the Assembly adopts or rejects the bill authorizing the ratification of treaty, without voting on its individual articles; and that the ratification procedure is suspended if the treaty has been referred to the Constitutional Council. The French Senate – which as a second house of Parliament finds itself in a constitutionally inferior position compared to the National Assembly – has similar rules. Most importantly, the French Parliament that failed to ratify the EDC Treaty in 1954 is the National Assembly of the Fourth Republic, established by the Constitution of 1946. With the approval and the entry into force of the Constitution on 4 October 1958 France has become a new Republic – the Fifth Republic: while this does not challenge at the international level the validity of its signature of the EDC Treaty in 1954, given the principle of the continuity of the state, it surely provides a clean slate for the Assemblée Nationale of the Fifth Republic to vote on it – for the first time.

In conclusion, if France and Italy voted in favor of the Treaty, the EDC could legally be revived and enter into force today. In fact, it is not uncommon that a significant lag of time may lapse between the signature of a treaty and its entry into force. This is particularly the case for multilateral treaties that require a number of ratifications before becoming operational. Moreover, there are important historical precedents in comparative constitutional law of ratification procedures that have taken over a hundred years! This bodes well for the efforts to awaken      the EDC Treaty, which after all has remained dormant for only 72 years.