institute of international and european affairs, dublin, ireland, july … security and... ·...

Cover photograph © Aidan Crawley, Defence Forces, May 2008European Security and Defence Policy and The Lisbon Treaty © Institute of International and European Affairs 2009Graphic design, type and layout by Brian Martin

© 2009 Institute of International and European Affairs.All rights reserved.

This Publication may be reproduced in full or in part if accompanied with the following citation: Keatinge, Patrick & Tonra, Ben, European Security and Defence Policy and the Lisbon Treaty, Institute of International and European Affairs, Dublin, Ireland, July 2009.

As an independent forum, the Institute does not express opinions of its own. The views ex-pressed in its publications are solely the responsibility of the authors.

ISBN: 978-1-907079-04-7EAN: 9781907079047

About the authorsPatrick Keatinge is Emeritus Associate Professor of Political Science at Trinity College Dublin and Chairperson of the IIEA working group on ESDP.

Ben Tonra is Jean Monnet Professor of European Foreign, Security and Defence Policy at the UCD College of Human Sciences and Project Leader of the IIEA working group on ESDP.

Foreword

This briefing paper is another brilliant contribution to the Institute’s background work on issues arising out of the Lisbon Treaty by Professors Ben Tonra and Patrick Keatinge. It describes the reality of European Security and Defence Policy (ESDP), as it has developed over the past six years and explains each of the relevant provisions in the Lisbon Treaty. It puts Ireland’s particular position in ESDP in the context of the recently published guarantees secured by the Irish government at the European Council on 19 June 2009, which will form part of the basis of the referendum on the Lisbon Treaty in the autumn. The briefing paper follows the traditional methodology of the Institute, examining recent practice in ESDP based on authenticated facts and it provides informed analysis of the implications for Ireland. The appendices include the original text of the Decision of the Heads of State and Government of the EU on the concerns of the Irish People on the Treaty of Lisbon in respect of ESDP and the National Declaration by Ireland. For historical purposes, it also includes the text of the Seville Declaration in 2002.

The briefing paper is written in a clear and easily comprehensible style and will inform its readers on both the civilian and military aspects of EU missions, and on the institutional structures involved in ESDP.

Two other recent Institute publications of relevance to the theme of this briefing paper are available as companion pieces on the IIEA website (www.iiea.com). The first is entitled: “Lisbon – The Irish Guarantees Explained” and the second is an illustrated pamphlet entitled: “Making Sense of European Security Policy: Ireland and the Lisbon Treaty”.

To conclude, this briefing paper places Ireland’s role in EU peace-keeping firmly in the context of its long tradition of UN peace-keeping and highlights the interdependence of European and global security as countries seek to ensure the “human security” of individuals threatened not just by war, but by natural disasters, terrorist attacks and new security threats of the 21st century. I commend it to all who have an interest in this policy area.

Jill Donoghue

Director General IIEADublin, June 2009

Table of Contents

Executive summary

Chapter 1: A new reality

IntroductionSecurity and Defence Policy in practice: the experience to dateThe EU’s role in international securityAn international division of labour

Chapter 2: Security and Defence Policy in the Lisbon Treaty

Policy aims and Member State commitmentsGeneral principlesThe Common Security and Defence PolicyDefence of the UnionThe Solidarity Clause

Policy means: resources and capabilitiesMilitary capabilitiesThe European Defence AgencyPermanent Structured CooperationCivilian resourcesFinancing the policy The institutional structure and decision-makingThe High RepresentativeThe European External Action ServiceThe nature of CSDP decisionsThe role of the European Parliament

The Significance of the Lisbon Treaty

Chapter 3: The implications for Ireland The question of neutralityThe Seville DeclarationsThe Lisbon Treaty Guarantees EU security and defence policy and Irish foreign policy

AppendicesAppendix 1: The Seville DeclarationsAppendix 2: Decision of EU Heads of State or Government, 19 June 2009Appendix 3: National declaration by Ireland

3

44 9 11

13

19

14

23

26

27

323436

Executive Summary

1. The EU’s Common Foreign and Security Policy, initiated in 1991, now incorporates a “European Security and Defence Policy” (ESDP) which has been operational since 2003. To date 27 missions have been launched, 19 of which are primarily civilian in character and 8 of which are primarily military (Tables 1 and 2 and paras. 3-10). Ireland has chosen to participate in 15 missions.

2. The EU’s approach, reflected in the European security strategy adopted in 2003, attempts to combine a wide range of resources, both civilian and military, in order to meet the challenges of international crisis management. Although the scale of the missions and the results they achieve may seem modest, they represent an innovative approach to international cooperation in this field (paras. 11-18).

3. The Lisbon Treaty, for the most part, codifies existing procedures and practices based on previous treaties (Maastricht, Amsterdam, Nice). The main institutional change is the extension of the role of the High Representative for the Common Foreign and Security Policy, backed by a new European External Action Service (paras.48-50-156-58).

4. The purpose of the ESDP – now called the “Common Security and Defence Policy” – is to deal with the challenges of international crisis management (paras. 21-22). A unanimous decision by Member State governments would be required for any future mutual defence ( a “Common Defence”) (paras. 23-31).

5. In order to encourage cooperation in generating the necessary civilian and military capabilities, the Treaty incorporates the existing European Defence Agency (EDA) (para. 39-40), and provides for a form of more ambitious cooperation in “Permanent Structured Cooperation” (paras. 41-42).

6. Decision-making with military implications is governed by the principle of unanimity, and is thus subject to Member State veto (para. 52) Participation in specific missions is decided by Member State governments on a case-by-case basis (para. 53).

7. The question of whether Ireland’s policy of military neutrality is compatible with its commitments under the EU’s security and defence policy has been a feature of referendum campaigns. Following the ‘No’ vote on the Treaty of Nice in 2001, reassurances were given in the Seville Declarations of 2002. These also provided for a “triple lock” on decisions to participate in EU missions (paras. 62-64). The second referendum on Nice had the effect of incorporating these assurances into the Irish Constitution, which now bars Ireland from joining an EU common defence. The Triple Lock requires that any overseas armed deployment of the Irish Defence Forces of more than 12 soldiers must have UN authorisation, formal approval of the Irish government and be endorsed by the Dáil.

1

8. The rejection of the Lisbon Treaty in the June 2008 referendum has been followed by the negotiation of similar but more detailed guarantees in the field of security and defence policy (paras. 65-76). A decision to that effect was agreed by the 27 Member States stating that “the Lisbon Treaty does not affect or prejudice Ireland’s traditional policy of military neutrality”. In an accompanying National Declaration the Irish government clarified its position on participation in the European Defence Agency, and placed national decision making more firmly in the context of national legislation.

2

CHAPTER 1A NEW REALITY

EURoPEAN SECURITyAND DEFENCE PoLICyAND THE LISboN TREATy

3

EuropEan SEcurityand DEfENCE PoliCyand ThE LIsbon TREATY

Introduction

1. Six years ago the European Union deployed its first missions under the European Security and Defence Policy - these were a police taskforce sent to bosnia and a peacekeeping force in the Former yugoslav Republic of Macedonia (FyRoM). Since then an additional 25 such missions, of various shapes and sizes, have been deployed, forming part of the EU’s response to a wide variety of demands for peacekeeping and humanitarian assistance in areas of conflict in Africa, Asia, Europe and the Middle East.

2. In some cases these operations are on a small scale, involving perhaps just a dozen personnel from EU Member States, helping in the reform of the police force or of local governments or judicial systems. In others, the requirement may be for a substantial military presence designed either to forestall violence or else – such as in an active conflict situation – to provide protection for refugees or a sufficient degree of stability to allow for peace negotiations. In all cases the policy framework is agreed unanimously by the EU Member States and is designed to balance the Union’s civilian and military contributions to best effect. These operations must also be seen within a broader diplomatic context that will always involve the United Nations, international contact groups, or other regional organisations.

Security and defence policy in practice: the experience to date

3. An overview of the first six years. Since the beginning of 2003 the European Union has deployed 27 missions on three continents, of which 12 are operational (as at 1 June 2009). As can be seen in the adjoining table, there is considerable variety in the nature, size and purpose of these missions.

4


5

Table 1: EU Civilian Missions

NAME COUNTRY DATES TYPE and PURPOSE

NUMBER OF P E R S O N N E L DEPLOYED

IRISH INVOLVEMENT

EUPM II Bosnia 1.1.2006 – to date Police

410(167 police,

28 international civilians, 215 local

staff)

Continuous presence 3 / 4 Gardai officers since Mission inception

EU Support to AMIS IICivilian component

Darfur(Sudan)

August 2005 – 31.03.2008 Police 27 -N/A

EUJUST LEX Iraq 1.07.05 – to dateRule of law

(police, justice, prisons)

29Training for 6 Iraqi prison officials by Irish Prison Service in october / November 2007

EU bAM Rafah1 Palestinian Territory

30.11.2005 – to date Border Monitoring Approx. 30

1 expert seconded by Department of Foreign Affairs currently serving

EUPoL CoPPS Palestinian Territory 1.1.2006 - to date Police Approx. 50

- No current deployment (previously 1 Garda Supt served for 12 months)

EUSEC RD CONGO (joint military and civilian)

Democratic Republic of Congo

02.05.2005 – to date

Security Sector Reform 73 -N/A

EUPT KoSoVo Kosovo 10.04.2006 – 31.03.2008

Rule of Law;Police 38 No Irish involvement

EUPoL RDCDemocratic Republic of Congo

01.07.2007 – 30.06.2008

Security Sector Reform; Police 43 N/A

EUPoL AFGHANISTAN Afghanistan 30.05.2007 –

30.05.2010 Police 400 1 expert seconded by Department of Foreign Affairs currently serving

EUPM I Bosnia 01.01.2003 – 31.12.2005 Police 172

Continuous Garda presence – 4 officers from inception of mission, including for a period an Assistant Garda Commissioner as Head of Mission

EUPoL PRoXIMA FYROM 15.12.2003 – 14.12.2005 Police 194 -N/A

Aceh Monitoring Mission

Banda Aceh(Indonesia)

01.09.2005 – 15.12.2006 Police 226

3 experts- weapons decommissioning1 personnel officer (all from Defence Forces)

EUPAT(EU Police Advisory Team)

FYROM 15.12.2005 – 14.06.2007 Police 30 -N/A

EUJUST THEMIS Georgia 16.07.2004 – 14.07.2005 Rule of Law 10

-N/A

EUPoL KINSHASADemocratic Republic of Congo

01.01.2005 – 30.06.2007 Police 24 -N/A

EUMM GEORGIA Georgia 15.09.2008- to date Monitoring 350 4 experts seconded by Department of

Foreign Affairs currently serving

continued >>>


EU SSR GUINEA bISSAU (joint military and civilian)

Guinea-Bissau 12.02.2008- to date

Security Sector Reform 39

-N/A

EULEX KoSoVo Kosovo 16.02.08- to date Rule of Lawc. 3,000 (1,900

international, 1,100 local)

9 (8 members of An Garda Siochana, 1 civil servant from Department of Defence)

EU border Assistance Mission to Moldova and Ukraine

Moldova-Ukraine

30.11.2005-01.11.2009 Border Assistance 220 (Dec 2008)

-N/A

Table 2: EU Military Operations

NAME COUNTRY DATE TYPE and PURPOSE NUMBER OF PERSONNEL

IRISH INVOLVEMENT

EUFoR ALTHEA Bosnia 02.12.2004ESDP Military Operation under UNSCR 1575BERLIN PLUS

3,922

41

Support to AMIS IImilitary component

Darfur(Sudan) 23.06.2005

Assistance to the UN authorised African Union

military mission in the region. UNSCR 1564 and

1574

21 military advisors 3

EUFoR Chad / RCA

Chad Central African

Republic

15.10.2007- March 2009

ESDP Military Operation under UNSCR 1778

Autonomous

4,200

operational battalion of approx. 450 deployed, including operation

Commander. Subsequently transferred to UN

Command.

ARTEMIS

Democratic Republic of

Congo(Ituri

Province)

12.06.2003 – 01.09.2003


Autonomous

2,000 DF HQ presence

EUFoR RD CongoDemocratic Republic of

Congo

12.06.2006 - 30.11.2006


Autonomous

3,700 DF HQ presence

CoNCoRDIA FYROM 31.03.2003 – 15.12.2003


BERLIN PLUS

350 military personnel N/A

EU NAVFoR Somalia/Atalanta

Off the Coast of Somalia

5.09.2008-to date

EU military coordination action underUNSCR 1838

1500 military personnelHQ contribution under

consideration

EU SSR GUINEA bISSAU (joint military and civilian)

Guinea-Bissau 12.02.2008-to date Security Sector Reform 39 N/A

6


MAP

7

http://www.iiea.com/documents/eu-civilian-missions-military-operations-map

4. The first striking feature is the fact that civilian operations outnumber military operations by more than 2:1 - with 19 primarily civilian missions and 8 military missions since 2003. These civilian missions usually involve police personnel from the EU Member States assisting local police forces where these have difficulty in providing effective policing. The EU personnel are usually engaged in monitoring, mentoring and advising. In exceptional cases EU police personnel also directly substitute for local police. This occurs when local police personnel are unable to conduct sensitive investigations such as those involving war crimes, organised crime or inter-ethnic crimes, or when the local police are lacking in a particular capability such as crowd and riot control or explosive ordnance disposal.

5. EU personnel also frequently work alongside colleagues from other international organisations such as the UN, the African Union or the organisation for Security and Cooperation in Europe (oSCE). So-called “Rule of Law Missions” have a somewhat broader mandate in that, along with police mentoring, they may involve the training, reform, restructuring or offering of advice to judges, courts, the prison services, probation services, customs services etc. – where the administration of justice has either collapsed or fallen into disrepute as a result of conflict. As with police missions these may on rare occasions involve the substitution of local personnel by EU personnel, with judges and prosecutors from EU Member States presiding over cases and leading prosecutions.

6. The numbers of civilian experts deployed by the EU can range from just a handful (with 10 personnel assigned to the Rule of Law Mission in Georgia) to several thousand (as in EULEX in Kosovo). Members of An Garda Siochána are currently deployed to missions in Bosnia and Kosovo and have also participated in the police mission to the Palestinian Territory. Civilian experts are currently seconded by the Department of Foreign Affairs to the police mission to Afghanistan, the monitoring mission to Georgia and the Border Assistance Mission between Gaza and Egypt. Defence Forces personnel participated in the civilian ESDP mission to Aceh, Indonesia.

7. The military missions are usually on a somewhat larger scale, dealing with conflict situations that are as yet too fragile to sustain a purely civilian operation. Two major operations have taken place in the balkans – Concordia (in what is now the Republic of Macedonia) and Althea (in bosnia and Herzegovina). At their respective high points, these missions had force strengths of several thousand troops each. In Africa, operation Artemis in 2003 consisted of a force of about 2,000 troops sent to the Democratic Republic of the Congo at the behest of the United Nations, pending the deployment of an UN force. The EU force was able to deploy in substantial numbers in about three weeks, and to hand over to the larger UN force some three months later. In 2006, EUFOR Congo, a 3,700-strong force, provided a secure environment to hold elections in the east of the country.

8. Recent developments. At the beginning of 2008, two further ESDP military operations were launched. The EU’s ‘bridging operation’ in Chad and the Central African Republic (EUFoR Tchad/RCA) was initiated on 15 March 2008 with the staged deployment of approximately 3,700 troops as the military component of the UN operation called MINURCAT to protect refugee and refugee camps and support the delivery of humanitarian aid. Many of these troops later transferred to UN command in 2009 at the conclusion of the EU mandate. The EU ‘Mission in Support

8


of Reform of the Security Forces in Guinea-Bissau’ which emerged from a civil war (EU SSR Guinea-Bissau) was launched on 12 February 2008 with a mandate to promote security sector reform in Guinea-Bissau up to 31 May 2009. In December 2008, the EU established EU NAVFoR (operation ‘Atalanta’) to address ongoing concerns with piracy in the seas surrounding Somalia. This is the EU’s first maritime operation.

9. The status of Kosovo is one of the last contested territorial issues following the prolonged and violent disintegration of the former yugoslavia. After lengthy but unsuccessful negotiations to secure agreed international diplomatic recognition, the Kosovo Parliament issued a unilateral Declaration of Independence on February 17, 2008. A number of EU Member States immediately offered their recognition of the new state while the European Council, just one day earlier, had initiated the ‘European Union Rule of Law Mission in Kosovo’ (EULEX KoSoVo). This is a deployment of up to 2,000 European Union police and civilian personnel as foreseen under the Ahtisaari peace plan and operating within the terms of the 1999 UN Security Council Resolution 1244 which provided authorisation for relevant international organisations to establish an international security presence in Kosovo. A NATo-led military mission in Kosovo (including 232 Irish troops), remains in place and is designed to deter a renewal of inter-ethnic violence or a Serb intervention.

10. The area of Eastern Chad and the Central African Republic which lies on the border with Sudan is a site of both serious instability as well as widespread human rights abuses. All of this is, in turn, linked to the anarchic violence in Darfur. It is estimated that about 280,000 refugees from Darfur and the Central African Republic plus 173,000 displaced Chadians are at immediate risk in the area. The European Union’s 2008 EUFOR Chad/CAR operation consisted of 3,700 troops in theatre, with the objectives of protecting refugees and UN personnel and ensuring access for humanitarian aid and relief. There was a significant and high-profile Irish participation in this mission. Irish Lieutenant General, Pat Nash, commanded the operation which included an operational battalion of approximately 450 troops. The mission was subsequently transferred to UN command in March 2009 at the successful conclusion of its mandate.

The EU’s role in international security

11. Security challenges. The operations described above reflect the European Union’s growing role in international politics. While the threat of general inter-state war in Europe receded with the end of the Cold War (1989-1991), serious challenges to international security have persisted. The instability created by impoverished and weak states, the proliferation of weapons of mass destruction and the threats posed by terrorism and organised crime are just three of the most urgent threats identified within the Union’s own security strategy.

12. The role of the European Union. Since its origins in the 1950’s, the EU gradually established a significant international presence through its trade policy and later its commercial and development aid policies. The continuing enlargement of its membership also served to augment its political and economic weight as an international actor. However, as long as the Cold War persisted, its

9


international political role was limited. A modest (though quite intensive) form of diplomatic consultation and cooperation was developed from 1972, but security and defence issues were clearly identified as being the province of either the Atlantic Alliance (in the case of NATO members) or independent national policy (as in the case of Ireland, then the only non-NATo Member State).

13. When the Maastricht Treaty (TEU) establishing the European Union came into effect in 1993, it introduced a Common Foreign and Security Policy (CFSP) which for the first time referred to all aspects of security policy, including a possible “common defence policy” which might lead to a “common defence”. However, serious divisions over the crisis in yugoslavia precluded the effective development of the EU’s role and arguably highlighted the ‘capabilities/expectations gap’ which existed within EU policy. Not until the 1999 Helsinki summit (following the December 1998 bilateral agreement at St. Malo between the british and French governments) did the Heads of State and Government agree to establish the European Security and Defence Policy (ESDP). This was designed as an integral part of the broader EU foreign policy framework, and intended as a framework through which the EU Member States might make good on third party expectations of the Union as an international actor – adding a critical if limited military component to EU conflict prevention and resolution strategies.

• 1972:o European Political Cooperation (EPC) – established first framework for

foreign policy consultation and cooperation

• 1992:o Maastricht Treaty- established the Common Foreign and Security

Policy (CFSP)

• 1997:o Amsterdam Treaty- established the European Security and Defence

Policy (ESDP) as a subset of the broader CFSP

• 1999:o European Councils at Cologne and Helsinki - agreed the infrastructure

designed to underpin ESDP

• 2003:o ESDP declared operational

• 2003:o European Security Strategy agreed

• 2007:o Lisbon Treaty – amendments to provisions on foreign, security and

defence policy and re-titles ESDP as the Common Security and Defence Policy (CSDP)

10

Box 1: Timeline of ESDP


11

14. The European Security Strategy 2003 and 2008 Report on its implementation. The basic rationale for the new policy was expressed in a strategy document unanimously agreed by the Member States in December 2003 and titled “A Secure Europe in a Better World”. It identified five key common threats – terrorism, proliferation of weapons of mass destruction, regional conflicts, state failure, and organised crime. In defining strategic objectives, the point was made that “in contrast to the massive visible threat in the Cold War, none of these threats is purely military; nor can any be tackled by purely military means”. The EU, with a comprehensive range of economic, humanitarian, political and now military instruments, saw itself as being better equipped to address these threats. Building security in the Union’s neighbourhood was identified as being a priority, as was support for an international order based on “effective multilateralism”. However, in order to pursue its objectives, it was argued that the EU needed to be more active, more capable, and more coherent.

15. In their 2008 implementation report on the European Security Strategy, the Member States again highlight non-military security issues, specifying evolving threats in the areas of cyber-security, climate change and energy security. They also underline the linkages between under-development and insecurity, insisting that peace-building and poverty reduction are central to the Union’s overall conflict prevention strategy. While the report highlights progress over the last five years in the Balkans, the Mediterranean, Afghanistan and Georgia it also acknowledges areas of ongoing concern such as the Middle East, terrorism and regional instability arising from Iran’s nuclear programme. The report insists that the Union will rise to these challenges as it has to those faced in the past, based on a “…distinctive European approach to foreign and security policy.”

An international division of labour15. 16. of course, the European Union is only one of a variety of international organisations which seek

to make some contribution to international security. The United Nations has a central place, both in terms of legitimising EU operations through the UN Charter and through the Security Council and as a partner in specific operations. For example, the EU may well have the capacity to act with greater urgency than the UN and put a mission in place pending the later arrival of an agreed UN force – as was the case in 2003 with operation Artemis in the Congo and in 2008/09 with EUFoR in Chad.

17. A close relationship between the EU and NATo has also emerged which is hardly surprising given the overlapping membership of the two entities. Indeed the hesitant evolution of the ESDP owes much to some Member States’ concerns that it represented a potential rival to NATo. Even where this political tension is resolved, it was seen as necessary to avoid possible duplication of capabilities, and to specify respective institutional roles in crisis management. The 2002 “berlin plus” arrangement was designed, in part, to address that issue. This is a package of agreements that allows the EU to draw on some of NATo’s military assets in its own peacekeeping operations and to avoid unnecessary duplication of capabilities across both organisations. The EU has replaced NATO as a peacekeeper twice – in Macedonia in 2003 and in Bosnia and Herzegovina in 2004.


18. Other partnerships are likely to develop in the field of international security. Already several EU missions have been framed in close cooperation with the African Union. Here the EU can act to some extent as a model and provider of technical and material assistance.

19. Evaluation. How should we evaluate the Union’s performance in contributing to international security? At first sight, the results are undoubtedly modest beside the continuing range, severity and prevalence of violent conflict in many parts of the world. However, it is not realistic to suppose that the EU can provide a panacea for all situations where political authority is contested, weak, absent or malevolent. In a world where the prerogatives of state sovereignty are still highly prized and jealously guarded, it is perhaps remarkable that the Member States of the European Union have agreed to the level of practical policy cooperation and coordination that they have achieved. Even so, EU Member States may not always be willing or able to provide the capacity to act. one modest litmus test of the Union’s record to date might be to ask the question: ‘Would the world be a safer or more dangerous place without the European Union’s efforts?’

12


13

CHAPTER 2SEcurity and DEfENCE PoliCy iN ThE LIsbon TREATY


20. Having looked at what policy means in practice, it is necessary to consider what the Member States’ governments have agreed in the Lisbon Treaty. The Lisbon Treaty restates and amends the provisions of previous treaties (Maastricht 1992, Amsterdam 1997, Nice 2001), all of which have already been ratified and implemented and which were subject to referenda in Ireland. The six main articles on what is now to be called the Common Security and Defence Policy are in Articles 42 to 46, and Article 222 of the Lisbon Treaty.

Policy aims and Member States’ commitments

General principles

21. The bedrock of the Lisbon Treaty’s approach to defence and security is to be found in its declaration in Article 4 that “In particular, national security remains the sole responsibility of each Member State”. The basic principles of the EU’s international policies, are then set out in Article 21.1, and acknowledge the UN Charter as the fundamental authority for international action as far as international security is concerned.

Box 2: Article 21.1 Treaty on European Union (TEU)

The Common Security and Defence Policy

22. The Common Security and Defence Policy is defined as being an integral part of the Union’s wider Common Foreign and Security Policy. Its purpose is defined in Article. 42.1.

Box 3: Article 42.1 TEU

The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law

The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peacekeeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

14


15

23. The specific tasks and types of action it can undertake are spelled out more fully in Article 43.1. This list is sometimes referred to as the “Petersberg Tasks” as they were first enumerated in 1992 at a summit meeting at the Petersberg Hotel near Bonn. They reflect the complexity of international crisis management and the range of activities in which security and defence missions may now become involved. It is clear that these tasks are not exclusively – or even mainly – military tasks but that they include a central role for civilian crisis management tasks.


Defence of the Union

24. In addition to making provision for the Common Security and Defence Policy as such, Article 42 contains what is in effect a continuing aspiration to a common defence of the Union, in the event of an attack on any Member State. This aspiration can only be fulfilled with a unanimous decision of all Member States. Any such decision of the EU Member State governments would also require national ratification according to each Member State’s constitutional provisions. In the case of Ireland, this would require a constitutional referendum.


25. The Lisbon Treaty amends the original 1991 language. While it may be seen as strengthening the aspirational commitment to a common defence, it still remains an aspiration. The only difference under the new treaty is that in one case, the wording “this might lead” becomes “this will lead”. What will not change is that an unanimous European Council decision will be necessary before the

The tasks referred to in Article 42.1, in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.

The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements. The policy of the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.


EU moves to establish a common defence.

26. It is important to note that when Irish voters approved ratification of the EU’s Nice Treaty in the referendum of october 2002, they also approved an amendment to the Constitution of Ireland/bunreacht na hÉireann which prevents the State from joining a common European defence created by such a decision of the European Council.

Box 6: Article 29.4.9o Constitution of Ireland

27. Thus, any proposal by any Irish government to join an EU common defence requires amending the Constitution, through a referendum on that question.

28. The aspiration to a common defence is also qualified by Article 42.2 by the fact that the proposal to establish a common defence shall not prejudice “the specific character of the security and defence policy of certain Member States” and the obligations of some Member States under the NATo treaty. This clause is deliberately worded in such a way as to cover a variety of different national circumstances. Some Member States outside the NATo alliance describe themselves as ‘neutral’, others do not. Other Member States within NATO also have specific issues with respect to their national security and defence policies. Thus, the clause is a deliberate catch-all – designed to acknowledge the fact – in diplomatic language – that all security and defence commitments made within the treaties are subject first and foremost to national priorities and national interests. In the case of Ireland, the clause is explicitly linked – through national and unanimous EU declarations – to military neutrality (see paragraphs 66-77).

29. The idea of mutual assistance is repeated in Article 42.7, which obliges Member States to provide aid and assistance to EU partners that are the victims of armed aggression on their territories. Again, this provision is qualified both by the requirement to observe the specific character of the security and defence policy of certain Member States as well as Member States’ obligations under the UN Charter – which places all such actions under the authority and responsibility of the UN Security Council.

16

The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 1.2 of the Treaty referred to in subsection 7o of this section where that common defence would include the State.



30. Unlike the NATo and WEU treaties, this article does not specify ‘military’ assistance or the use of ‘armed force’. Article 5 of the Washington Treaty (the treaty that governs NATO), is explicit in referencing “the use of armed force” as an inherent part of NATo’s mutual defence. Article V of the Brussels Treaty (on which the Western European Union is based) specifies that members of the WEU will “afford the Party so attacked all the military and other aid and assistance in their power”.

31. This article also clearly depicts NATo as the bedrock of common defence for those EU Member States which are members of NATO. Furthermore, the qualification that in certain circumstances EU Member States have an obligation of aid and assistance “by all the means in their power” implicitly refers to legal means – returning us to the provisions of the ‘Triple Lock’ under which the Government and Dáil could approve a mission with a UN mandate.

32. Finally, the European Court of Justice is excluded from reviewing policy under the Union’s foreign, security and defence policy. This means that no Member State can be brought before the Court for any alleged failure or refusal to honour treaty commitments or to implement agreed policy in this area. The Court’s only competence is to adjudicate where there is disagreement as to whether a matter falls under CFSP or non-CFSP policy-making rules (Article 40 of the EU Treaty), in reviewing the legality of sanctions (Article 275 of the Treaty on the Functioning of the European Union) and in delivering opinions on the compatibility of international agreements (Article 218 of the Treaty on the Functioning of the European Union).

The Solidarity Clause

33. The Lisbon Treaty also introduces a “Solidarity Clause” in Article 222. This contains an obligation to assist Member States that are the object of a terrorist attack or natural and/or man-made disaster, such as earthquakes or tsunamis. Where this may have defence implications, Article 222.3 states that any such decisions shall be taken on the basis of the Common Foreign and Security Policy chapter in the EU Treaty (Article 31.1). This requires unanimity for any and all decisions with defence implications. In summary, no automatic defence obligations are imposed on the Member States. They remain the sovereign decision of national governments with respect to all security and defence matters, in accordance with national decision-making procedures, which, in Ireland’s case, means the Triple Lock.

If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.Commitments in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

17


Box 8: Article 222 Treaty on the Functioning of the European Union (TFEU) – The Solidarity Clause

1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:

(a) - prevent the terrorist threat in the territory of the Member States;- protect democratic institutions and the civilian population from any terrorist attack; - assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;

(b) assist a Member State in its territory, at the request of its political . authorities, in the event of a natural or man-made disaster.

2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.

3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 31(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.

For the purposes of this paragraph and without prejudice to Article 240, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 71; the two committees shall, if necessary, submit joint opinions.

4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.

18


Policy means: resources and capabilities

34. The EU possesses considerable potential for the exercise of “soft power” or influence outside its borders. Its political and diplomatic influence in the world, its economic weight expressed through its commercial policy and its role as the world’s largest development aid donor is significant. Moreover, all this has to be placed alongside the combined political, diplomatic, economic and indeed military resources of 27 relatively developed European states. In practice, however, neither the mobilisation nor the coordination of these assets can ever be taken for granted.

35. Apart from the obvious limitations arising from finite resources and the competing demands made on them, the realisation of the EU’s potential is always dependent on just what the Member States are willing to undertake. This is very loosely defined: Article 42.3 of the Lisbon Treaty says simply that “Member States shall make civilian and military capabilities available to the Union for the implementation of the common foreign and security policy, to contribute to the objectives defined by the Council”.

36. There is absolutely no measure of compulsion on the part of the Union. Member State contributions are entirely decided by their own governments. In Ireland’s case, the troops for military crisis management are drawn from the Permanent Defence Forces. The deployment of these forces on peace support operations is – in every case – dependent upon decisions of the Government, of the Dáil and with an explicit mandate from the UN. The provisions of the “Triple Lock” mechanism do not apply to the deployment of civilian personnel (members of An Garda Siochána, members of the judiciary, monitors etc.) to civilian ESDP missions.


Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as “the European Defence Agency”) shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any me asure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.

19


Military capabilities

37. European Rapid Reaction Force and Battlegroups. Although the EU requires both civilian and military resources to fulfil its declared goals, the discussion of military capability has been longstanding and difficult. Military budgets and defence forces generally have been significantly reduced since the end of the Cold War. While there was much talk – and some effort – placed in ‘restructuring’ European military forces to meet new (and older) security threats, the multiple and successive crises in the Balkans and elsewhere exposed critical weaknesses in Member State forces. Targets known as “headline goals” were set so as to create the capacity to deploy up to 60,000 troops within 60 days, and to maintain them in the crisis location ‘for up to one year.’ This collection of multi-national troops was initially referred to as the “European Rapid Reaction Force”.

38. Ultimately, the Member States were unable to muster the necessary resources to meet that target. Instead, in 2004, they moved the goalposts to create smaller and more mobile units, in the shape of the so-called “battlegroups”. These are frequently multinational formations of between 1,500 and 2,500 troops available at short notice, singly or in combination, to be deployed to a crisis area. A rotation was established from among the 18 or so battlegroups thus far created, so that two such formations would be on stand-by in any six-month period. To date, no battlegroups have been deployed. Instead, the Member States have used the EU’s broader security and defence infrastructure to pool national forces for specific operations on an essentially ad hoc basis. There is no central command structure and each military operation is created from loaned national forces and built around a bespoke operational headquarters.

The European Defence Agency

39. The decision to create a European Defence Agency (EDA) in 2004 reflected the need to form a consensus on how to bridge the gap in the available military capabilities required to fulfil the EU’s declared international obligations. Its goal is to improve the military capacities of participating states so that they can better support the treaty-defined functions of the EU’s security and defence policy (see paragraph 24). This does not necessarily imply additional military spending. The emphasis is upon more focused and coordinated military spending so as to maximise possible economies of scale. With an annual budget of about 30 million Euro, the EDA has undertaken very specific projects: technologies for better landmine disposal, for the detection of improvised explosive devices (IEDs) and better detection of chemical, radiological, and biological weapons. by designing such equipment together, by tendering for such equipment together, by manufacturing such equipment together and/or by buying such equipment together, European governments can potentially improve their respective military capacities at a net saving to the taxpayer.

40. To date, Ireland has participated as a full partner within the framework of the EDA. Participation in the Agency, given its focus on capability development, is seen as being a critical element in the ongoing development and modernisation of Defence Force capabilities for international peacekeeping operations. Ireland has participated specifically in the EDA Joint Investment Programme on Force Protection, a critical factor to the success of any peace support operation.

20


Alongside 20 other European states (including both NATo and neutral/non-aligned states), Ireland has contributed just under 1.3% of the 3-year, 54.93 million Euro, budget of this programme. The research areas here include: the detection of chemical, biological, radiological, nuclear and other threats; the identification of airborne threats to peacekeeping forces; and research on new materials for force protection. The Defence Forces benefit directly from the research conducted by the Agency, since they could not access or develop this on their own. Ireland also participates in the EDA’s Code of Conduct on Defence Procurement and other initiatives designed to improve competition and efficiency in the acquisition of defence equipment and capabilities.

41. Participation in the Agency imposes no obligations on Ireland in relation to increased defence expenditure. All such decisions are entirely a matter for each individual Member State of the Union. In addition, there is no obligation or commitment to participate in any particular project undertaken by the EDA. Any decision to participate in any particular project is a matter for each Member State to decide in accordance with its own national decision-making procedures.

Permanent Structured Cooperation

42. The Lisbon Treaty also introduces the concept of “permanent structured cooperation” (Article 42.6 and Article 46) in the area of security and defence policy. This means that a subset of Member States which wish to, and are able to, work more closely on developing military cooperation, will have a dedicated framework within which to do so. No Member State is obliged to join and certain rules apply to the setting up of such a group. Article 42.6 also allows participating Member States to withdraw at their own instigation. To date, permanent structured cooperation has never been used.


43. A new Article 46, supplemented by a protocol, sets out the rules for the establishment of permanent structured cooperation. This requires the setting, by the EDA, of certain agreed benchmarks for participation. Then, on the application of those Member States which reach those benchmarks, the Council of Ministers – by Qualified Majority Voting and in consultation with the High Representative – will ratify the membership of this framework for closer military cooperation. Any subsequent decisions on the implementation of this cooperation will require the unanimous agreement of those participating Member States. Permanent Structured Cooperation is designed to facilitate those states which wish to move further and faster together in coordinating the development of military capabilities in support of ESDP. However, it does not give those states the right to decide, on their

Those Member States whose military capabilities fulfill higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 46. It shall not affect the provisions of Article 43.

21


own, to launch a military operation on behalf of the Union. With their presumably higher military capacity, they may be called upon by the EU – as ever, only acting unanimously – to act in support of the Union’s treaty-defined peacekeeping goals.

Civilian resources

44. Civilian personnel and equipment are critical to peace support and international security missions. Police, judges and administrative experts must be recruited, trained and supported in the field, and the generation of these capabilities now follows a comparable pattern to that of the military forces. Force generation for civilian ESDP missions has, however, often proven problematic, with nearly all civilian missions being under their originally planned strength. Some of this is due to systemic issues: civilian assets such as judges and police officers are much less deployable than military personnel. Also European Interior and Justice Ministries have proved reluctant to see such assets diverted outside their home state.

45. A broader view of “civilian capability” would include EU and Member State diplomatic personnel, such as the Special Representatives and their staffs, appointed under the Common Foreign and Security Policy, and perhaps even officials responsible for the implementation of EU Development Policy.

46. Europe has sought to improve its capacity to manage the civilian aspects of ESDP. In August 2007, a new body was established within the General Secretariat of the Council, called The Civilian Planning and Conduct Capability (CPCC), to plan and oversee the conduct of civilian ESDP missions.

Financing the policy

47. Who pays the costs arising from the generation of all these capabilities and their deployment in actual missions? There is a distinction between military and civilian expenditure. Member States pay any costs arising from the maintenance and upgrading of their own national military capabilities which are made available for EU missions. They also pay the direct costs of their own participation in any specific operations. Operational expenditure with military and defence implications is explicitly excluded from the Union budget (accountable to the European Parliament, with the exception of military expenditure). A very complex budgetary system has been devised whereby operational costs are assessed and distributed among the Member States according to the principle that costs ‘lie where they fall’. The Union budget supports only a small fraction, about 10 percent, of what are referred to as ‘common costs’ necessary to keep decision-making structures and administrative support in place. These are then distributed according to an index based on the Gross National Income of the Member States. As a result, the Member States have a strong incentive to support the efforts of the European Defence Agency in rationalising and sharing defence expenditure. Ultimately, it is national finance ministries that tend to be the determining factor here and it has been argued that the complex cost-base of different kinds of operations has directly impacted on Member States’ positions vis-à-vis deploying and participating in such operations.

22


48. Member States also meet the cost of personnel seconded to civilian ESDP missions. However, the operational running costs and daily allowances for all personnel serving in civilian missions are met by the Common Foreign and Security Policy (CFSP) budget, which is administered by the European Commission and agreed with the European Parliament. The CFSP budget for the years 2007-2013 is €1.98 billon. The budget is expected to cover crisis management operations (civilian ESDP missions only), conflict prevention, conflict resolution and stabilisation, non-proliferation and disarmament measures and EU Special Representatives.

The institutional structure and decision-making

49. There are several levels in the institutional structure of the EU relating to the Common Security and Defence Policy. The European Council (which is the term used for the EU’s Heads of State and Government) defines the general guidelines. Specific policy decisions are the responsibility of the Council of Member State Foreign Ministers, who would, under the Lisbon Treaty, meet under the chairmanship of the proposed EU foreign policy chief, the High Representative of the Union for Foreign Affairs and Security Policy.

The High Representative

50. The post of High Representative for the Common Foreign and Security Policy was established in 1999 after the Amsterdam Treaty came into force, in order to provide a better focus for the relatively new policy area. The Lisbon Treaty has expanded the role in several significant ways. In addition to being the EU’s chief diplomat, responsible for the coordination and implementation of the CFSP and answerable to the Member States meeting within the Council of Ministers, the High Representative woud also be a member of the Commission and be in charge of the Commission’s External Relations portfolio (economic aid and assistance and bilateral political relations). In that capacity the High Representative would be directly responsible to the European Parliament. This is designed to facilitate better consistency and coherence in the EU’s relations with third countries (such as the US, Russia, China) and it gives even more focus to the Union as an international actor.

The European External Action Service (EEAS)

51. The EU has adopted the practice of appointing Special Representatives to deal with particular issues. In early 2009, a total of 11 such officials were responsible for the promotion of EU policy in various countries and regions, including Afghanistan, the African Great Lakes Region, the African Union, bosnia and Herzegovina, Central Asia, Kosovo, the Republic of Macedonia, the Middle East, Moldova, the South Caucasus and Sudan. This pragmatic development is to be buttressed under the Lisbon Treaty by the creation of a new European External Action Service (EEAS), which is designed to ensure better consistency between, and representation of, the foreign policy of the individual Member States and the common foreign policy of the EU. The Service is to be composed of officials from the Commission, the Council Secretariat and from Member State foreign ministries. Its role is defined as one which will support and assist the implementation of

23


EU policy in coordination with national diplomats. The EEAS will not replace national foreign ministries nor will it decide on matters of national foreign policy.

Table 3: The EU Special Representatives (EUSRs):1

Name Nationality Country/Region Dates in Office

Mr. Torben brylle Danish Sudan April 07 – Feb 2010

Mr Pieter Feith Dutch Kosovo Feb 08-Feb 2010

Mr Erwan Fouere Irish Former yugoslav Republic of Macedonia

oct 2005-Sept 2009

Mr Valentin Inzko Austrian bosnia and Herzegovina March 09-Feb 2010

Mr Kalman Mizsei Hungarian Moldova Feb 07-Feb 2010

Mr Pierre Morel French Central Asia Oct 06-Feb 2010

Mr Marc otte belgian Middle East July 03-Feb 2010

Mr Peter Semneby Swedish South Caucasus Feb 06-Feb 2010

Mr Ettore Francesco Sequi Italian Afghanistan July 08-Feb 2010

Mr Roeland van de Geer Dutch African Great Lakes Region Feb 2007-Feb 2010

Mr Koen Vervaeke belgian African Union Dec 07-Dec 2010

1 http://www.consilium.europa.eu/showPage.aspx?id=263&lang=EN

24


52. Within ESDP, formal decision-making remains squarely in the hands of political-level bodies (European Council, Council, EDA steering board), except where the Council has delegated authority to the Political and Security Committee (PSC). The PSC, consisting of Member State ambassadors based in brussels, remains central to the decision-making system. They act under instructions from, and report back to, their respective governments. Their role in brussels is to monitor the international situation, provide advice to the Council of Ministers and to oversee the implementation of agreed policy (Article 38). A system of committees and other bodies such as the Politico-Military Group, EU Military Committee, the EU Military Staff, and the Joint Situation Centre bring together civilian and military experts from both the Member States, the Council bodies and the Commission, as appropriate, to feed into the work of this group.

The nature of CSDP decisions

53. Amidst the complexity of the institutional structure, one simple rule governs decision-making in this area. All decisions, including decisions to initiate specific missions, must be taken unanimously (Article 42.4 and Article 48.7 TEU). That is to say, they are subject to national vetoes. This rule is absolute for decisions with military implications.

54. Participation in specific missions is made on a case-by-case basis by national governments, and thus depends on national rather than EU decision-making rules. In the case of Ireland these decisions are subject to the so-called “Triple Lock” arrangement, formally appended to the Treaty of Nice in 2002 in a national declaration and enshrined in Irish legislation (including the Defence Acts). The Triple Lock requires that any overseas armed deployment of the Irish Defence Forces of more than 12 soldiers must have UN authorisation, formal approval of the Government and be endorsed by the Dáil.

The role of the European Parliament

55. The European Parliament has a consultative role regarding CSDP matters. The High Representative is required to consult regularly in plenary sessions or in the relevant committees, and the Parliament holds twice-yearly debates on policy implementation (Article 36 TEU). The Parliament’s usually powerful role in the EU budget is qualified in this area by the fact that all military spending is funded directly by national governments and only subject to national decision-making rules. The European Parliament has some oversight over civilian CFSP spending, some common costs supporting administrative infrastructure and the spending of reserve or contingency funds which are necessary to meet crisis situations.

56. Given the emphasis on the role of national governments in the policy process, national parliaments also have an incentive to exercise a measure of oversight. The extent to which they do so will vary from case to case, according to national constitutional provisions, tradition and legislation.

25


The significance of the Lisbon Treaty

57. To summarise, what difference does the Lisbon Treaty make to the European Union’s security and defence policy? For the most part, it restates and codifies existing policy and practice more fully, with some amendments designed to consolidate original intent and procedures. It also proposes several important new features such as the role of the High Representative and the new External Action Service.

58. There is no doubt that the newly structured High Representative post is potentially an influential one. The current High Representative, Javier Solana, has already established a high profile for his work in developing the existing foreign and security policy and his more general role as diplomatic spokesman of the Union. Giving the new-style High Representative a foot in both Council and Commission, the chair of the Foreign Affairs Council and the support of an integrated external action service, has the potential to strengthen the post further.

59. Yet, this is still a change of degree rather than kind, in a complex arrangement without historical precedent or parallel. For the sake of convenience some analysts tend to use short-hand terms like “foreign policy” or “foreign minister’ in an EU context, but such analogies can be seriously misleading. The High Representative, now and under the proposed Lisbon Treaty, can only act on the basis of unanimous decisions made by 27 national foreign ministers. Each of these Ministers acts on behalf of 27 sovereign states. The External Action Service does not replace 27 foreign ministries, but it is designed to improve coordination between them and to pursue unanimously agreed common policies.

60. Other innovations such as the Solidarity Clause (para. 33) may be increasingly important as the EU plays a central role in responding not just to terrorist attacks but also to natural disasters. Finally, the provision for Permanent Structured Cooperation allows some of the EU Member States with greater military capability to coordinate their own capacities more closely, without creating an obligation for all Member States to get involved.

26


CHAPTER 3tHE iMPliCATioNS For IRELAnD

27


The question of neutrality

61. In all seven previous Irish referendums on participation in European integration the issue of the compatibility between the conditions of EU membership and Ireland’s policy of military neutrality has been raised. There has been a concern that changes to the legal base of the EU – in whatever form these took in any particular referendum – would undermine or compromise the principles or practice of that policy. Irish governments, whatever their political composition, have on the other hand emphasised that the “traditional policy of military neutrality” has been preserved.

62. On the two occasions when treaty changes were rejected (Nice, 2001 and Lisbon, 2008) the Government negotiated clarifications of what the treaty changes meant with the other Member States. These documents shed further light on the nature and extent of the obligations undertaken, not just by Ireland, but by all the signatories to the treaties.

The Seville Declarations

63. Following the defeat in 2001 of the first referendum on the Treaty of Nice the Government made a National Declaration at the European Council meeting in Seville on 21 June 2002 (Appendix 1). It confirmed that Ireland’s participation in the EU’s Common Foreign and Security Policy does not prejudice its traditional policy of military neutrality. The Declaration also made it clear that the scope of EU policy did not amount to plans to develop a “European army” and made a solemn commitment to the holding of a referendum in Ireland on the adoption of any decision by the Union to move to a common defence and on any future treaty change which would involve Ireland departing from its traditional policy of military neutrality.

64. The National Declaration also reiterated what has come to be known as the “Triple Lock”, by which the deployment of Irish military forces overseas requires the authorisation of the UN Security Council or the General Assembly, a decision by the Government and approval of the Dáil.

65. The European Council at Seville also adopted a Declaration acknowledging the Irish National Declaration and among other things noting that the Treaty on European Union “does not impose any binding mutual defence commitments”, “nor does the development of the Union’s capacity to conduct humanitarian and crisis management tasks involve the establishment of a European army”. With the second Nice referendum in 2002, these commitments were incorporated in the Constitution (Article 20.4.9).

The Lisbon Treaty Guarantees

66. In the 2008 Lisbon Treaty referendum, 53.4% of voters, on a turnout of 53.1%, voted ‘No’. Neutrality was not the predominant reason for this negative result - overwhelmingly, a lack of knowledge, information and understanding was cited as the central reason for their vote (42%). Neutrality was, however, cited as one of half a dozen substantive core issues motivating ‘No’ voters. Their concerns ranged from a general sense that traditional Irish neutrality was being undermined – and

28


the Lisbon Treaty was furthering that process – to quite specific fears, even on matters well outside the scope of the Treaty text. Research after the event found that 33% of respondents (48% of ‘No’ voters and 26% of ‘Yes’ voters) believed that the Lisbon Treaty provided for conscription to a European army (Milward brown IMS Post Lisbon Referendum Research Findings Sept 2008).

67. On 19 June 2009, the 27 EU Member States agreed a series of guarantees to be the basis of a further Irish referendum on Lisbon. These take the form of a “Decision of the Heads of State or Government of the 27 Member States” (that is, including Ireland), representing an agreed position on the contested issues, including those related to security and defence (see Appendix 2). This agreement is legally binding, and its provisions will eventually take the form of a Protocol to the two founding treaties at the time of the next accession treaty (http://iiea.com/documents/lisbon-the-irish-guarantees-explained). In addition to this international decision, the Irish government at the same time published a unilateral “National Declaration” on security and defence (Appendix 3) which will be appended to the Lisbon Treaty if ratified. This document elaborates the agreed guarantees from an Irish perspective, and indicates legislative and procedural measures to be followed in the event of ratification of the Treaty.

68. Given the increasingly detailed Treaty text on what would, in the event of ratification, be known as the “Common Security and Defence Policy”, the Lisbon Guarantees are necessarily more extensive than those agreed at Seville in 2001. The decision of the 27 Member States starts with the reiteration of the Treaty language on the values and principles of the EU in its international action, including the principles of the United Nations Charter. The latter is emphasised in the National Declaration, referring to the “primary responsibility” of the UN Security Council.

69. The decision of the 27 Member States makes it clear that participation in EU operations is a national decision, “subject to domestic legal requirements”. The National Declaration, again building on its predecessor, the Seville Declaration, spells these out in the now familiar formula of the “Triple Lock”.

70. A good deal of attention is paid to the question of the compatibility between the Treaty obligations and Ireland’s policy of military neutrality. In addition to several reiterations of the existing Treaty language protecting the “specific character of the security and defence policy of certain Member States”, the decision of the 27 Member States baldly notes that “the Lisbon Treaty does not affect or prejudice Ireland’s traditional policy of military neutrality”. In the event of eventual ratification of the Treaty, and the subsequent inclusion of the guarantees in the form of a Protocol, it will be part of the primary law of the European Union.

71. The decision of the 27 Member States also points out that any move to a “common defence” will require unanimity in the European Council and be subject to the constitutional requirements of individual Member States. The National Declaration, in turn, stating that “Ireland is not bound by any mutual defence commitment”, reminds us that the Constitution of Ireland already requires a referendum to be held on any such decision, a requirement which would not be affected by ratification of the Lisbon Treaty.

29


http://iiea.com/documents/lisbon-the-irish-guarantees-explained

http://iiea.com/documents/lisbon-the-irish-guarantees-explained

72. As regards to the Solidarity Clause, which provides for “aid and assistance” to any Member State which is the victim of a terrorist attack or “armed aggression” on its territory, the decision of the 27 Member States notes that it is for Ireland to determine the nature of such aid, “acting in a spirit of solidarity and without prejudice to its traditional policy of military neutrality”.

73. The emphasis in the Lisbon Treaty on the development of the capabilities of a Common Security and Defence Policy is reflected in both the decision of the 27 Member States and the National Declaration. First, the decision makes it clear that the Treaty “does not provide for the creation of a European army or for conscription to any military formation”. Moreover, “the nature and volume of [a Member State’s] defence and security expenditure and the nature of its defence capabilities” is a matter for decision at the national level. So too is any decision to participate in the more ambitious form of capabilities generation, as envisaged in the provisions on Permanent Structured Cooperation (see paragraphs 42 & 43). The National Declaration makes any future decision on this matter subject to approval of the Dáil.

74. Participation in the European Defence Agency is also described as a matter for each Member State to decide. The National Declaration, in noting this fact, goes further by limiting Ireland’s participation to specific projects or programmes “that contribute to enhancing the capabilities required for participation in UN-mandated missions for peacekeeping, conflict prevention and strengthening international security, in accordance with the principles of the United Nations Charter”. This limitation reflects existing practice.

75. The National Declaration’s commitments with regard to both Permanent Structured Cooperation and the European Defence Agency suggest a more formal and thorough procedure of parliamentary scrutiny with regard to security and defence policy. In this context, it should be noted that the Government has made a commitment to introduce legislation in this field in the near future.

EU security and defence policy and Irish foreign policy

76. The reassurances contained in the decision of the 27 Member States and the National Declaration tend to say more about what is not in the Treaty rather than what is, thus taking account of the concerns expressed by the Irish people in the referendum in June 2008. They do not focus on the practical achievements of EU security and defence policy to date. That is perhaps inevitable, given the nature of the exercise, but one section of the National Declaration strikes a particularly positive note. Drawing on the language of Article 29 of the Constitution (“the ideal of peace and friendly cooperation amongst nations and to the peaceful resolution of international disputes”), it reaffirms Ireland’s “strong commitment to conflict prevention, resolution and peacekeeping, and recalls the record of its personnel, military and civilian, in this regard”.

77. Now that EU security and defence policy is more than a set of institutions and procedures, and has a substantive track record in peacekeeping and international security support through both civilian and military missions, it should be easier to appreciate the extent to which it is or is not compatible with the traditions, values and practices of Irish foreign policy. It does not seem unreasonable to

30


suggest that the EU’s comparatively holistic approach to multilateral crisis management matches what Irish governments have long practised independently and through the UN (incorporating the whole spectrum of policy instruments from diplomatic and political persuasion, through economic and humanitarian assistance to the limited use of military forces). It also provides an additional context through which the Permanent Defence Forces can pursue Ireland’s 50-year old tradition of involvement in international peacekeeping. This opens new possibilities for making an Irish contribution to international peace and security and neither precludes nor weakens Ireland’s continuing commitment to traditional UN missions or its national principles and values in the area of international peace and security.

31


Appendix 1: The Seville Declarations

A: National Declaration by Ireland, Seville, 21 June 2002

1. Ireland reaffirms its attachment to the aims and principles of the Charter of the United Nations, which confers primary responsibility for the maintenance of international peace and security upon the United Nations Security Council.

2. Ireland recalls its commitment to the common foreign and security policy of the European Union as set out in the Treaty on European Union, adopted at Maastricht, amended at Amsterdam and approved on each occasion by the Irish people through referendum. 3. Ireland confirms that its participation in the European Union’s common foreign and security policy does not prejudice its traditional policy of military neutrality. The Treaty on European Union makes it clear that the Union’s security and defence policy shall not prejudice the specific character of the security and defence policy of certain Member States. 4. In line with its traditional policy of military neutrality, Ireland is not bound by any mutual defence commitment. Nor is Ireland party to any plans to develop a European army. Indeed, the Nice European Council recognised that the development of the Union’s capacity to conduct humanitarian and crisis management tasks does not involve the establishment of a European army.

5. The Treaty on European Union specifies that any decision by the Union to move to a common defence would have to be taken by unanimous decision of the Member States and adopted in accordance with their respective constitutional requirements. The Government of Ireland has made a firm commitment to the people of Ireland, solemnised in this Declaration, that a referendum will be held in Ireland on the adoption of any such decision and on any future Treaty which would involve Ireland departing from its traditional policy of military neutrality.

B: Declaration by the European Council, Seville, 21 June 2002

1. The European Council takes cognisance of the National Declaration by Ireland presented at its meeting in Seville on 21 and 22 June 2002. It notes that Ireland intends to associate its National Declaration with its act of ratification of the Treaty of Nice, should the people of Ireland decide in a referendum to accept the Treaty of Nice.

2. The European Council notes that the Treaty on European Union provides that any decision to move to a common defence shall be adopted in accordance with the respective constitutional requirements of the Member States.

3. The European Council recalls that under the terms of the Treaty on European Union the policy of the Union shall not prejudice the specific character of the security and defence policy of certain Member States. Ireland has drawn attention, in this regard, to its traditional policy of military neutrality.

32

4. The European Council acknowledges that the Treaty on European Union does not impose any binding mutual defence commitments. Nor does the development of the Union’s capacity to conduct humanitarian and crisis management tasks involve the establishment of a European army.

5. The European Council confirms that the situation referred to in paragraphs 2, 3 and 4 would be unchanged by the entry into force of the Treaty of Nice.

6. The European Council recognises that, like all Member States of the Union, Ireland would retain the right, after the entry into force of the Treaty of Nice, to take its own sovereign decision, in accordance with its constitution and its laws, whether to commit military personnel to participate in any operation carried out under the European Security and Defence Policy. Ireland, in its National Declaration, has clearly set out its position in this regard.

33

Appendix 2: The Decision of EU Heads of State or Government, 19 June 2009

DECISION OF THE HEADS OF STATE OR GOVERMENT OF THE 27 MEMBER STATES OF THE EU, MEETING WITHIN THE EURoPEAN CoUNCIL, oN THE CoNCERNS oF THE IRISH PEoPLE oN THE TREATy oF LISboN The Heads of State or Government of the 27 Member States of the European Union, whose Governments are signatories of the Treaty of Lisbon, Taking note of the outcome of the Irish referendum of 12 June 2008 on the Treaty of Lisbon and of the concerns of the Irish people identified by the Taoiseach, Desiring to address those concerns in conformity with that Treaty, Having regard to the Conclusions of the European Council of 11-12 December 2008, Have agreed on the following Decision:

C: Security and Defence The Union’s action on the international scene is guided by the principles of democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

The Union’s common security and defence policy is an integral part of the common foreign and security policy and provides the Union with an operational capacity to undertake missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. It does not prejudice the security and defence policy of each Member State, including Ireland, or the obligations of any Member State. The Treaty of Lisbon does not affect or prejudice Ireland’s traditional policy of military neutrality. It will be for Member States - including Ireland, acting in a spirit of solidarity and without prejudice to its traditional policy of military neutrality - to determine the nature of aid or assistance to be provided to a Member State which is the object of a terrorist attack or the victim of armed aggression on its territory.

Any decision to move to a common defence will require a unanimous decision of the European Council. It would be a matter for the Member States, including Ireland, to decide, in accordance with the provisions of the Treaty of Lisbon and with their respective constitutional requirements, whether or not to

34

adopt a common defence. Nothing in this Section affects or prejudices the position or policy of any other Member State on security and defence. It is also a matter for each Member State to decide, in accordance with the provisions of the Treaty of Lisbon and any domestic legal requirements, whether to participate in permanent structured cooperation or the European Defence Agency. The Treaty of Lisbon does not provide for the creation of a European army or for conscription to any military formation. It does not affect the right of Ireland or any other Member State to determine the nature and volume of its defence and security expenditure and the nature of its defence capabilities. It will be a matter for Ireland or any other Member State, to decide, in accordance with any domestic legal requirements, whether or not to participate in any military operation.

35

Appendix 3: National Declaration by IrelandEuropean Council Conclusions, 19 June 2009

Ireland reaffirms its attachment to the aims and principles of the Charter of the United Nations, which confers primary responsibility for the maintenance of international peace and security upon the United Nations Security Council. Ireland recalls its commitment to the common foreign and security policy of the European Union, as approved on several occasions by the Irish people through referendum. Ireland confirms that its participation in the European Union’s common foreign and security policy does not prejudice its traditional policy of military neutrality. The Treaty on European Union makes clear that the Union’s security and defence policy shall not prejudice the specific character of the security and defence policy of certain Member States. In line with its traditional policy of military neutrality, Ireland is not bound by any mutual defence commitment. The Treaty on European Union specifies that any decision by the Union to move to a common defence would have to be taken by unanimous decision of the Member States and adopted in accordance with their respective constitutional requirements. The Constitution of Ireland requires that a referendum be held on the adoption of any such decision applicable to Ireland and this requirement will not be affected should Ireland ratify the Treaty of Lisbon. Ireland reiterates its commitment to the ideal of peace and friendly cooperation amongst nations and to the principle of the peaceful resolution of international disputes. It reaffirms its strong commitment to conflict prevention, resolution and peacekeeping, and recalls the record of achievement of its personnel, military and civilian, in this regard.

It reiterates that the participation of contingents of the Irish Defence Forces in overseas operations, including those carried out under the European common security and defence policy requires (a) the authorisation of the operation by the Security Council or the General Assembly of the United Nations, (b) the agreement of the Irish Government, and (c) the approval of Dáil Éireann, in accordance with Irish law. Ireland notes that nothing obliges it to participate in permanent structured cooperation as provided for in the Treaty on European Union. Any decision enabling Ireland to participate will require the approval of Dáil Éireann in accordance with Irish law. Ireland notes also that nothing obliges it to participate in the European Defence Agency, or in specific projects or programmes initiated under its auspices. Any decision to participate in such projects or programmes will be subject to national decision-making and the approval of Dáil Éireann in accordance with Irish law. Ireland declares that it will participate only in those projects and programmes that contribute to enhancing the capabilities required for participation in UN-mandated missions for peace-keeping, conflict prevention and strengthening international security, in accordance with the principles of the United Nations Charter.

36

The situation set out in this Declaration would be unaffected by the entry into force of the Treaty of Lisbon. In the event of Ireland’s ratification of the Treaty of Lisbon, this Declaration will be associated with Ireland’s instrument of ratification.

37

The Institute of International and European AffairsEurope House

8 North Great Georges StreetDublin 1Ireland

Tel: (353) 1-874 6756

Fax: (353) 1- 878 6880

www.iiea.com

e-mail: [email protected]

© Institute of International and European Affairs 2009

Related publications available at www.iiea.com/publications

Lisbon: The Irish Guarantees Explained

What the Lisbon Treaty Means

The Consolidated and Annotated version of the Treaties as amended by the Treaty of Lisbon

institute of international and european affairs, dublin, ireland, july … security and... ·...

Documents