The basis for the Attorney General's advice that a referendum is not needed to allow Ireland to join the NATO-sponsored Partnership for Peace in the autumn has been released.
The Minister for Foreign Affairs, Mr Andrews, placed a letter incorporating the conclusions reached by the Attorney, Mr David Byrne SC, in the Dail library yesterday at the request of the Green Party TD, Mr John Gormley.
The substance of Mr Byrne's advice was that Ireland's proposed PFP membership "would appear to be" a political commitment rather than an obligation in international law. "The Attorney General cannot see any legal reason why a referendum would be required prior to Irish participation in PFP," Mr Andrews said.
"A referendum could only be required if participation in PFP would be contrary to the Constitution and if it was, therefore, necessary to amend the Constitution to permit the State's participation in PFP."
He then listed the relevant provisions of the Constitution: Article 1, Article 28.2 and Article 28.3.1, which states that "war shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann".
Referring to the Crotty case in 1987 where the Supreme Court held that a referendum was required to ratify the Single European Act, the Minister said: "In the present instance, the Attorney General can see nothing to suggest that participation in PFP requires the State to concede any part of its sovereignty in its relations with other states or to conduct foreign policy without regard to the requirements of the common good."
The objectives of PFP, according to Mr Andrews, were: facilitation of transparency in national defence planning and budgeting processes; ensuring democratic control of defence forces; maintenance of the capability and readiness to contribute, subject to constitutional considerations, to operations under the authority of the UN and/or the responsibility of the CSCE; the development of co-operative military relations with NATO for the purpose of joint planning, and exercises in order to strengthen their ability to undertake missions in the fields of peacekeeping, search and rescue, humanitarian operations, and others as may subsequently be agreed; and the development, over the longer term, of forces that are better able to operate with those of NATO members.
Mr Andrews suggested that there could be no constitutional objection to the first two. "The Attorney General can see no reason why we would not agree to maintain our capability and readiness to contribute, subject to constitutional considerations, to UN or CSCE operations.
"There is no obligation here to contribute to any particular operation, and the State will maintain its freedom and flexibility to refuse to do so should it consider that such participation is not in the interests of the common good," he said.
Turning to the fourth objective, there was again no obligation to undertake any particular mission in the field of peacekeeping, search and rescue, humanitarian operations, or in any other field, and accordingly the State's freedom of action in relation to particular operations was maintained, he said.
Finally, the Attorney saw no legal objection to the development of forces that were able to co-operate with those of other countries in relation to such missions should such missions be considered desirable in the future.
Mr Andrews said the PFP framework documents also included a number of understandings. These included the understanding that those who envisaged participation in missions in the fourth objective would, where appropriate, take part in related NATO exercises.
"Again, there is no obligation to take part in related exercises only where it is intended to participate in such missions," he said.
