OPINION:Opting out of the Lisbon EU defence proposals will damage our Defence Forces, endanger our soldiers, and lead to serious limitations to our foreign policy and influence in Europe
IN HER series of articles on Irish neutrality and the Lisbon Treaty (November 25th to 27th), Dr Karen Devine argues that an opt-out protocol is the only way to make the treaty's obligations compatible with the State's existing policy of military neutrality. This proposition was advanced by several protagonists on the No side in the referendum last June, most emphatically by the Peace and Neutrality Alliance (Pana), and will no doubt be raised in any future referendum.
It is important, therefore, to try to understand just what is at stake.
The articles as a whole raised many issues about what our neutrality is or might be, and what it means in the context of membership of the European Union. Like Dr Devine, we are academic analysts in the related fields of international relations and European integration and have a close interest in these questions.
On the question of the values underpinning the various concepts of neutrality, for example, we would suggest that the values associated with the concept of "active neutrality" are to a very large extent reflected in the Lisbon Treaty itself, a point underlined by Daniel Keohane's recent letter in these columns.
Furthermore, we think the actual practice of EU operations since 2003, in which there is an innovative attempt to embed the military dimension in its wider political context, deserves more emphasis. Here the EU has a unique advantage over other international organisations, such as the United Nations, the Organisation for Security and Co-operation in Europe or Nato, given its attempt to integrate a wider range of the instruments of "soft power" (diplomacy, development aid and assistance by way of policing, judicial and administrative expertise).
However, we part company with Dr Devine's orthodox analysis on two critical points. The first is her interpretation of the Lisbon Treaty and the second is her failure to consider whether there might be negative consequences of the course of action she prescribes.
Dr Devine makes two startling comments, including the claim that the Lisbon Treaty creates "a new EU military alliance" and that "the military neutrality concept of non-membership of a military alliance is eliminated". Far from being an element "proposed" in the Lisbon Treaty, the potential for a European Union "common defence" was first included in the Maastricht Treaty in 1992 as a policy that member states may wish to create, and then only unanimously, if they consider such action necessary "in order to promote peace, security and progress in Europe and in the world".
The Amsterdam Treaty added the proviso that any common defence, if created, must comply with the provisions of article 17 of the EU Treaty, which affirms that collective action in the field of defence "shall not prejudice the specific character of the security and defence policy of certain member states".
The Lisbon Treaty further amends that article to include the provision that all action by the EU member states must comply with the principles of the UN Charter, thereby ensuring the primacy of the United Nations as stated by article 103 of the UN Charter.
Action in the area of EU common foreign and security policy can only be implemented if each member state consents. To dismiss the Irish veto over the union's common foreign and security policy as a "non sequitur" is incorrectly to imply that certain articles in the treaty are irrelevant.
If the treaty requires unanimity in decision-making, this means precisely that and nothing else. Each member state has a veto that is protected by EU law. If vetoes were irrelevant or ineffective - or non sequiturs - they would not have featured with such prominence in the Irish debate on the Lisbon Treaty.
The further claim that military neutrality is eliminated under the Lisbon Treaty is equally false. The "specific character of the security and defence policy of certain member states" is maintained by the Lisbon Treaty. Dr Devine dismisses this formula as "so vague as to be devoid of any legal effect", but the fact that the phrase does not specify the nature of that "character" enables each and every member state (whether neutral, non-aligned, or Nato member) to ensure that its own national defence policy and strategic interests take priority over any plans to create an EU common defence.
To begin with, the issue of legal effect is not of prime concern, as the Lisbon Treaty makes it clear that "the Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy". It is therefore up to each national government first to determine its own national security and defence policy and then to ensure that this policy is respected in any initiatives proposed, using its influence and wielding its veto if necessary.
Nowhere does the Lisbon Treaty require member states to take any military action were one of its partners to be the victim of armed aggression or terrorist attack. It provides instead for an obligation to provide "aid and assistance" and "act in a spirit of solidarity", which is entirely compatible with neutrality and which one could expect from any "active neutral" in a time of crisis.
The terrorist attacks in Paris (1995), Madrid (2004) and London (2005), as well as atrocities closer to home such as the Omagh bombing, reflect precisely the assumption that EU member states would provide support and humanitarian assistance where appropriate. The military aspect of this could entail the provision of engineers, transportation, field hospitals, bomb disposal experts, etc - and other specialist expertise which exists, for example, within the Defence Forces.
This "assumption" now becomes a political - not legal - obligation to provide help under the Lisbon Treaty, but the treaty is clear in ensuring that the means and content of such assistance is determined by the member-state government; that it respects article 51 of the UN Charter; and that it does not prejudice national security and defence policies.
By voting Yes to the Nice treaty in 2003, a majority of Irish voters endorsed a constitutional prohibition preventing Ireland from participating in a common defence. This is already as strong a safeguard for military neutrality - in effect, an opt-out - as can be envisaged, as the EU is founded on the national constitutions of the member states, including the Irish Constitution.
As regards the idea of common defence, the Irish Constitution is unambiguous: "The State shall not adopt a decision taken by the European Council to establish a common defence." Moreover, no decision to establish a common defence may be taken without the formal consent of each and every member state according to the requirements of their respective constitutions.
Advocates of a defence opt-out rarely consider the possibility of negative consequences of this position. In our view, these can be seen under two headings: the impact on the role and capacity of the Defence Forces; and the loss of Ireland's control and influence over the development of the EU's security and defence policy.
The opt-out stance is not theoretical; Denmark has been there for 15 years, and the Danish experience gives us some guidance as to what is involved.
So far as the Defence Forces are concerned, an opt-out would lead to severe operational restrictions. Of course, we could still participate in UN operations, and even in Nato-organised operations, so long as these were authorised by the UN (as we are currently doing in Kosovo). But we could not as of right participate in EU operations, as we are currently doing in Chad and as we have done very successfully in Bosnia and the Democratic Republic of Congo.
However, the real potential damage would be to the preparedness of the Defence Forces for the increasingly complex and often dangerous tasks of international crisis management. The experience of intensive staff work, from the diplomatic-military level to that of the operational level in multinational commands; the training provided in standby units, such as the Swedish-led Nordic battle group: this is what has provided the Defence Forces with a high-level professional profile, which is simply not available in the UN context.
In effect, an opt-out means we are asking our soldiers to operate in a dangerous environment with less than the best available preparation and training.
The Danish military has not been so badly affected by their opt-out as ours might be, since Denmark is a Nato member. However, when it comes to the loss of influence entailed in an opt-out, the Danish experience is instructive.
The representatives of the opt-out country can be present during security and defence discussions, but they have no voice, no vote and no veto. This clearly amounts to a serious and critical loss of control and influence over the development of the union's security and defence policy. Moreover, the absence of any meaningful contribution to the union's security and defence policy will necessarily rob Ireland of the political credibility necessary to contribute to the EU's overall foreign and security policy. This would critically undermine any potential for Ireland as an "active neutral" in regional and international affairs.
If we do have concerns about these matters - and the vote last June indicates we do - it seems to be a curiously perverse argument to deny ourselves the right to put our point of view where it can count for something.
It is interesting to note that not all the advocates of a No vote last June are in favour of a defence opt-out on the Danish model. Sinn Féin, for example, while insisting on a new "protocol on the neutrality of Ireland", nevertheless advocates retaining the right to participate fully in security and defence decision-making. Pana and Dr Devine's preferred position, on the other hand, appears to abandon this right - at the potential cost of an engaged, active and positive Irish foreign policy.
Patrick Keatinge is a Fellow Emeritus of Trinity College, Dublin; Peadar Ó Broin is a senior researcher with the Institute for International and European Affairs in Dublin; and Ben Tonra is Jean Monnet Professor of European Foreign, Security and Defence Policy at University College Dublin