CAMPAIGN ISSUES: Brian Cregan argues that the summit declaration by EU leaders at Seville last June, saying that Ireland's policy of military neutrality is in conformity with the Nice Treaty, has legal as well as political weight
There has been much discussion about the legal status of the declaration of the European Council at Seville on June 21st and 22nd, 2002. The declaration took note of Ireland's national declaration also published at Seville, which said that Irish participation in the EU's common foreign and security policy "does not prejudice its traditional policy of military neutrality."
The Seville Declaration went on to say EU treaties do not impose mutual defence commitments and that any decision to move to a common defence shall be adopted in accordance with member-states' constitutional requirements.
Those opposed to the Nice Treaty have said that the Seville Declaration is of no legal effect.
This is not the case. The Seville Declaration is not simply a "Declaration" - it also has significant legal effects in at least two respects: (1) it is an interpretation by the European Council of certain provisions of the Treaty of Amsterdam and the Treaty of Nice; and (2) it is a statement by the European Council of "principles and general guidelines" of Common Foreign and Security Policy which are given legal status by Article 13(1) of the Treaty on European Union.
To assess the legal significance of the Seville Declaration, it is necessary to consider the legal context in which it is made.
All the treaty provisions on Common Foreign and Security Policy (CFSP) were initially enshrined in the Treaty on European Union (the Maastricht Treaty) and subsequently amended in the Treaty of Amsterdam. The Common Foreign and Security Policy provisions are all in the so-called "second pillar" of the EU (the first pillar is the European Communities; the third pillar is justice and home affairs).
The method of decision-making in the second pillar is fundamentally different to that of the first pillar. The first pillar has all the usual EC decision-making apparatus (i.e. regulations, directives, etc).
The decision-making of the second pillar is completely different. The European Court of Justice has no jurisdiction over the second pillar - not even over the interpretation of treaty articles dealing with CFSP. This means the CFSP provisions are not enforceable by the European Court of Justice. The governing body for the CFSP is the European Council.
Therefore, when there is a question about the interpretation of the treaty provisions on Common Foreign and Security Policy the only institution which can answer that question is the European Council, given that the European Court of Justice has no jurisdiction.
The Seville Declaration is therefore the definitive interpretation of the legal effects of certain provisions of the Treaties of Maastricht, Amsterdam and Nice made by the only institution capable of giving such an interpretation - the European Council.
Moreover, Article 13(1) of the Treaty of the European Union states: "The European Council shall define the principles of and general guidelines for the Common Foreign and Security Policy including for matters with defence implications."
Thus the Seville Declaration also represents a fundamental statement by the European Council of specific "principles and general guidelines" for the European Union's Common Foreign and Security Policy.
These principles and general guidelines have legal weight and status which are given explicit recognition in the Nice Treaty by Article 13(1).
The most relevant principles and general guidelines set out by the European Council in the Seville Declaration are that the Treaty on European Union does not impose any binding mutual defence commitments (paragraph 4) and that Ireland's traditional policy shall be unchanged by the Treaty of Nice.
Nothing in the Treaties of Maastricht, Amsterdam or Nice could be interpreted as meaning that Ireland's traditional policy of neutrality (i.e. being part of a military defence pact) was undermined. The argument that it could be, is a misleading and disingenuous interpretation which has no legal foundation.
The No campaign is either unaware of what the Nice Treaty actually contains and yet still persists in calling for a No vote; or else it is aware of the legal provisions and is deliberately seeking to mislead the public with false fears.
The No campaigners cannot have it both ways; they cannot argue that certain provisions in the Treaty of Nice will result in Ireland being dragged into a military defence pact against our will while also arguing that the Seville Declaration is of no legal effect.
The Seville Declaration is not only a declaration of political intent that Ireland's neutrality is not at risk if the Treaty of Nice is ratified; it is a clear interpretation by the European Council of certain provisions of the Treaty on European Union and the Treaty of Nice.
Moreover it is a statement by the European Council of "principles and guidelines" for European Common Foreign and Security Policy as it applies to Ireland and indeed any other neutral country. As such, it is a document which has legal as well as political weight.
Brian Cregan is a practising barrister and is a former lecturer in law in Trinity College Dublin.