There are likely to be no easy options or simple Plan Bs if the Nice Treaty is rejected a second time, one of Ireland's most respected Irish diplomats has warned, writes Patrick Smyth
In a detailed analysis of the political and legal implications of a No vote, released yesterday by the Alliance for Europe, Mr Noel Dorr has warned of further constitutional pitfalls and that it would be foolish to imagine Ireland's negotiating position would be strengthened.
"The idea of 'using the Accession Treaties instead of Nice' is fraught with difficulties," he says. "It certainly offers no easy way out. . . and it is hard to see it as a readily available Plan B."
A former secretary general of the Department of Foreign Affairs, now in retirement, Mr Dorr was the Irish face on the group of national representatives who were involved in the technical negotiations and produced the drafts of both the Amsterdam and Nice Treaties - indeed he is credited with much of the language of the former.
Few would have a more detailed knowledge of the delicate web of interconnected concessions by member-states that made up a hard-won consensus.
His paper is part political assessment, part legal, and confirms the pessimistic view of those who say that putting together the pieces after a No vote could delay enlargement by years.
"If our second referendum is lost and it cannot come into effect, what would follow would be a period of complete disarray in the Union and indeed among the applicant states. Ireland would certainly be 'in the doghouse' and in a poor position to negotiate for anything better," Mr Dorr warns.
"It may be that in such a situation a way around some of the difficulties outlined above could eventually be found - a way which would allow some use to be made of the accession treaties as a temporary expedient pending a new treaty in 2004 or 2005 (which would come into effect say in 2006 or 2007).
"What can be said with reasonable certainty is that the position of Ireland would be likely to be much less favourable if this had to be done."
Critically, he points repeatedly to the reality that the many final outcomes in the treaty, from the number of commissioners, to the weighting of votes, are the results of complex trade-offs. Unpick one, he argues and you bring the house of cards down.
In asking whether Nice is necessary to enlargement, Mr Dorr points out that the question is not an issue that can be decided in the abstract - the other 14 have made clear they regard it as such, and for a number of reasons that do not vanish with a No vote.
Firstly, they are concerned that an enlargement on this scale could lead to gridlock without changes in the way the Union works. Secondly, large member-states were concerned that the weighting of votes towards small states would be exacerbated by the accession of so many others if carried out on current terms.
They were determined to halt that slide, particularly in the face of demands they give up their second commissioner. Indeed the two issues are irrevocably linked, and the 14 are deeply perturbed by the thought of unbundling the hard-won compromise which was enshrined in the so-called "Amsterdam protocol".
The latter provides for accession by five new countries, providing agreement was reached on the reweighting of votes - agreed in Nice - and for a major institutional review ahead of the accession of a sixth state.
Mr Dorr argues that to suggest, in the event of a No, that accession could go ahead on the basis of the current treaty, simply applying pro-rata current voting strengths to new members, is unrealistic, as the large states have already conceded their second commissioner and expect a concession in return.
"Achieving such agreement was the central and most difficult point of the whole Nice Treaty negotiation - over 10 months at lower level and four days and nights at summit level at Nice itself," he writes.
In looking at whether the enlargement could proceed by using individual accession treaties, either simply for changes in voting weights, or, more ambitiously, for unbundled elements from the Nice Treaty, Mr Dorr warns that the approach does not avoid the political problems involved in renegotiating a treaty. It might also face challenge in the Court of Justice as an inappropriate use of the treaty accession provisions.
A minimalist version of such an approach is unlikely to be agreed for all the reasons described, while an attempt to put most of Nice into individual treaties runs the risk of running foul of the Irish courts.
"There would. . .be a question about how our own Supreme Court would react if the procedure were subjected to legal challenge," he warns.
"Would they hold that it could not be done without a further referendum? If the electorate have rejected the general proposition that 'The State may ratify the Treaty of Nice'. . .could it not be argued that parts of that same treaty could not now be picked out and put into effect through a different legal instrument without consulting the electorate again in a referendum?
"The central difficulty about this is that all other member-states take the view that Nice was a package deal, a reasonable compromise.
"To reopen it now in this way would mean a new and very difficult negotiation to agree on what should go in and what should be dropped entirely.
"It would be especially difficult since all 14 other states have ratified the treaty as it stands. If this approach were followed, all of us would now have to work out some new 'package deal' and they would have to go back to their parliaments to ask them to ratify the result," he argues.
"Presumably the underlying idea from our viewpoint would be to get a better deal than at Nice - that is to say we would want certain provisions of Nice to be dropped and others included.
"That would have to be negotiated between the 15 states. How could we possibly think that we would now come to the table for this new negotiation in a better position than we did at Nice?"