Nice II, if passed, would put beyond doubt an obligation on the Governmentto consult the people before introducing a common EU defence policy,suggests John O'Dowd
The 26th Amendment of the Constitution Bill, 2002, is relevant to two main aspects of Ireland's role in European security and defence. The first is common defence in the EU context. The second is whether the State's traditional policy of military neutrality should be given an express constitutional basis.
The nature of our existing participation in the so-called Petersberg Tasks of the EU is a related issue, but one that is, strictly speaking, unaffected by the proposed amendment. In examining the possible effects of adopting the Government's proposed amendment, it is necessary to say a little about the context.
The proposal deals directly and straightforwardly with the first point: a possible obligation of common defence between the members of the European Union.
NATO, the North Atlantic Treaty Organisation, and the Western European Union (which includes 10 of the EU member-states; Ireland, Sweden, Finland, Austria and Denmark having the status merely of observer countries) are each based on the obligation of all their member-states to participate in the defence of any of them against attack.
In the case of NATO the obligation is no longer theoretical, given that Article 5 was invoked in the wake of the September 11th attacks on the United States. An obligation of mutual defence does not exist between the members of the European Union; Ireland, Sweden, Finland and Austria are under no such obligation to render any assistance to any of the other 12 member-states in the event of an armed attack upon it.
The Treaty of Amsterdam, approved at the 1998 referendum, created two distinct possibilities: that the Western European Union would be integrated into the European Union and that the progressive framing of a common EU defence policy might lead to a common defence (i.e. an obligation of mutual defence), should the European Council (by unanimity) so decide.
In that case, the European Council would recommend to the member-states the adoption of such a decision in accordance with their respective constitutional requirements. That is the present position, set out in the Amsterdam Treaty, and it will remain so, even if Ireland does not ratify the Treaty of Nice.
The operational functions of the Western European Union have largely been transferred to the European Union, in relation to humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peace-making (the so-called Petersberg Tasks).
Thus the European Union now has a military infrastructure, a political and security committee and a military committee reinforced by a military staff, for the purpose of co-ordinating the deployment of combat troops in the course of crisis management operations.
In the corresponding provision of the Treaty of Nice, references to the integration of the WEU into the EU are dropped. What has not yet been adopted, however, is a policy of common defence at the EU level, and the WEU remains an expression of the existence of that obligation between its members.
Would Ireland be obliged to amend the Constitution in order to adopt a decision to create a common defence between the member-states of the EU? Is any treaty by which the State binds itself to go to war in defence of another state compatible with the Constitution?
Differing views have been expressed on this. The constitutional provision that the State may neither declare war nor participate in any war without the assent of Dáil Éireann has led some (including, at one point, the present Minister for Justice, Equality and Law Reform) to doubt whether a treaty obligation of common defence would be constitutional.
However, Article 5 of the NATO Treaty, for example, is framed so as to leave to each state the decision as to how to go about fulfilling its obligation to assist in the defence of a fellow member-state.
It has also been suggested that the constitutional prohibition on the raising or maintaining of any military or armed force other than those raised by the Oireachtas is a bar to the stationing of foreign forces in the State.
This does not seem a particularly strong argument. Excluding the presence on its territory of foreign forces does not, in itself, prevent a state from participating in an organisation such as NATO.
Since the courts will presume that the Government and the Oireachtas will implement the provisions of any treaty in a constitutional manner, it is difficult to see how joining a common EU defence (or NATO, for that matter) would require an amendment of the Constitution.
On balance, therefore, it seems that the Constitution, as it stands, would allow the Government, with the approval of Dáil Éireann, to commit the State to participation in a defensive military alliance, without any referendum being constitutionally required. That, of course, is quite a different matter from the political commitment that a referendum would be held in such circumstances, given by successive Irish governments and confirmed in the Seville Declarations.
One result of the proposed 26th Amendment would therefore be to put it beyond doubt that there is a legal requirement that a referendum be held before Ireland could adopt a decision by the European Council to introduce a common EU defence.
This is particularly noteworthy, as the European Council could (with the agreement of the Irish Government) adopt such a decision under the provisions introduced by the Amsterdam Treaty three years ago.
However, the broader issue of whether the State might not join some other arrangement for common defence (such as NATO or some bilateral arrangement with the UK or the US) is not addressed. Nor is the issue of the existing security role of the EU, particularly the development of a military capacity to deploy combat forces in crisis management situations.
While there is no obligation for Irish combat forces to participate in such operations, and the Government has indicated that there are only limited circumstances in which they would be willing to authorise such participation, this is a field of activity that is already covered by the Amsterdam Treaty.
How seriously one regards the fact that these other matters have not been dealt with, in comparison with the fact that the immediate issue of participation in a common EU defence is certainly addressed, depends of course on one's perceptions of what Irish neutrality consists of and on the nature of the threats posed to it by various international developments.
John O'Dowd is lecturer in the Law Faculty at University College Dublin, specialising in constitutional law