TY - JOUR

T1 - The Non-Ratification Scenario: Legal and Practical Responses to Mixed Treaty Rejection by Member States

AU - Kübek, Gesa

PY - 2018

Y1 - 2018

N2 - The near-death of the EU-Ukraine Association Agreement and Comprehensive Economic and Trade Agreement (CETA) painfully illustrated that the conclusion mixed agreements, i.e. agreements that list the EU, its Member States and a third party as contractors, may be derailed by a negative vote of (sub-)national decision-makers. Such a non-ratification entails a problematic conundrum: Despite the requirement for national ratification under international law, a Member State violates the EU’s legal principles of conferral and loyal cooperation when vetoing a mixed treaty in its entirety. The present article argues that the Member States are not competent to reject the EU exclusive parts of a mixed treaty in their own right. It suggests that the EU’s and the Member States’ legal authority to ratify mixed agreements is contingent on who owns and who exercises treaty-making power for substantive components and outlines several practical ways to align national (non-)ratification with the EU’s law on competences and procedure.

AB - The near-death of the EU-Ukraine Association Agreement and Comprehensive Economic and Trade Agreement (CETA) painfully illustrated that the conclusion mixed agreements, i.e. agreements that list the EU, its Member States and a third party as contractors, may be derailed by a negative vote of (sub-)national decision-makers. Such a non-ratification entails a problematic conundrum: Despite the requirement for national ratification under international law, a Member State violates the EU’s legal principles of conferral and loyal cooperation when vetoing a mixed treaty in its entirety. The present article argues that the Member States are not competent to reject the EU exclusive parts of a mixed treaty in their own right. It suggests that the EU’s and the Member States’ legal authority to ratify mixed agreements is contingent on who owns and who exercises treaty-making power for substantive components and outlines several practical ways to align national (non-)ratification with the EU’s law on competences and procedure.

KW - Law

UR - http://www.kluwerlawonline.com/abstract.php?area=Journals&id=EERR2018002

UR - http://www.scopus.com/inward/record.url?scp=85045684320&partnerID=8YFLogxK

M3 - Scientific review articles

VL - 23

SP - 21

EP - 40

JO - European Foreign Affairs Review

JF - European Foreign Affairs Review

SN - 1384-6299

IS - 1

ER -