In international law, States are the masters of treaties, and agreementof all parties can always result in the revision or annulment of any treaty, irrespective of the revision procedure instituted therein. Article 59 of the Vienna Convention on treaty law, which codifies existing law, indicates that annulment of a treaty can result from stipulation of a contrary agreement by all the parties concerned. Does this rule apply to international organisations? Practise allows us to answer in the affirmative. A number of specialized institutions of the United Nations have been brought into being in this manner since 1945, without the revision procedures provided for in the treaties establishing the pre-existing organisations ever being utilized. In Europe, the OECD was created on the basis of a protocol providing for the dissolution of the OEEC at the moment when the convention creating the OECD went into effect. And as we are speaking of federal systems, let us recall that the United States of America were const

ituted without adhering to the revision procedures of the Articles of Confederation. The same was true of the drafting of the new Swiss Constitution after the Sonderbund, despite the protests of certain European powers.

The Applicability of EEC Treaty Article

The question of whether things can proceed in this fashion in Community law as well is, at least apparently, more controversial. In fact, the ECSC Treaty was modified by the 1956 treaty on the Saar without any particular objection's being raised. Similarly, the convention on common institutions enacts a modifications of the ECSC Treaty on certain points totally outside the revision procedures. Practice, and the juridical scholarship that codifies that practice, shows that unanimous agreement of the States can produce a revision of treaties with no need to resort to the revision procedures. In all the cases mentioned above, however, the Member States were acting in the framework of the existing treaties. A fortiori, then, if they wish to leave that framework, the revision procedure set forth in EEC Article 236 cannot be applicable. No one would dream of analyzing the EEC Treaty as a revision of the ECSC Treaty and accusing the States of not having followed ECSC revision procedure. When the Member States eng

aged in the study of the Fouchet Plan, they did not worry about adopting the perspective of a revision of the EEC Treaty, any more than the project for a Political Community drafted by the Ad Hoc Assembly remained in the framework of a revision of the ECSC, whatever effects application of the new treaties might have had on the existing Communities. Similarly, the Genscher-Colombo Plan, in its original draft, envisaged the conclusion of a Union Treaty without referring to the Article 236 revision procedure. Thus both in scholarship and in conceptions of some governments, as well as in practice, the progress of the Union need not necessarily entail respect for the revision procedures of the EEC Treaty. The reason is simple. In all these cases, a new juridical order, distinct from the previous one, was created. Of course this new order affected the old. It could even absorb parts thereof, but it was basically independent of it. The revision procedure must be applied when one acts within the framework of the o

ld system, which one intends to reform. That procedure no longer comes into play when the aim is to constitute institutions with new powers and possessing a different juridical status. The OECD is no longer the OEEC, which, however, it does supplant. The EEC, evidently, is juridically distinct from the ECSC. Even if the European Union takes the patrimony of the Communities into account, it nevertheless represents a new stage. The revision procedure is intended primarily to protect tyhe Community patrimony against the risk of regression. Here,however, the intent is to develop that patrimony further still. There is no particular argument in favor of application of Article 236. In creating the European Union the States, in conformity with the EEC Treaty, are instituting a closer union of the European peoples. This new organisation is not the Community. It is freely instituted by the States. The Member States may modify existing treaties by unanimous agreement without following the revision procedures enacted by

the teaties themselves, as long as the changes made remain in the general framework set forth therein. If an entirely new structure is to be instituted, adherence to the revision procedures is no longer required, since by definition what is being done is to create a new juridical order. By this same principle, moreover, unanimity of the Member States is no longer required, though it is still highly desirable. The question becomes a different one: compatibility between the European Union and the European Community.

Compatibility Between the Union and the Community

If the Union agreed to by all Community Member States, they can decide to terminate the Community treaties, their patrimony being resumed in conformity with the provisions of the Union Treaty. What happens, though, if some Member States opt not to participate in the new structure? Once it has been admitted that the Union Treaty is different and separate from the Community treaty, nothing requires that in order to go into effect it need be ratified by all the members of the Community. The problem that arises in this case is the compatibility between two concurrently existing treaties (Article 30 of the Vienna Convention). Two hypotheses must be envisaged:

1) It is possible that not all Member States decide to adhere to the Union Treaty, but that they all agree to abrogate the Community treaties. This has been the general parctice in cases of reconstitution of organisations after dissolution. For instance, all the members of the OEEC agreed that body should disappear with the execution of the Convention establishing the OECD, while being perfectly well aware that some of them would not become members of the new organisation.

2) In this case, there is a risk that some States, while not wishing to adhere to the Union Treaty, could paralyse its execution. If it is admitted that law does not prohibit some Member States to create, among themselves, a closer European Union, as long as they honor their obligations to those parties to the Community treaties that do not become members of the Union (as the Vienna Convention on treaty law requires) - then what? Must the Union and the Community both be kept in existence together? That would be the most satisfactory solution, theoretically, but is it practicable?

Apart from the costly institutional duplication it would entail, it would put the non-members of the Union in a difficult position. They would be faced the joint action of the Union members within the Community, who would impose their will, perhaps relying on the voting procedures provided for by the EEC Treaty. Even though the Union Treaty would guarantee respect of the rights of non-members derived from the Community treaties, it would most likely be better in practical terms to offer to negotiate their relations with the Union under a new statute, which could be a new model of Association"