EU leaders make it clear Cowen's options are limited

Mon, Jun 23, 2008, 01:00

ANALYSIS:The Brussels EU summit narrowed, but clarified, the options facing Taoiseach Brian Cowen after the rejection of the Lisbon Treaty, writes Patrick Smyth.

IT'S REALLY not on for a bereaved husband at a funeral, as his friends mill round commiserating, to announce that he intends to start dating the next day. Whatever his intentions may be, it's just not seemly.

Taoiseach Brian Cowen was getting plenty of sympathy in Brussels on Thursday and Friday and the sort of breathing space that a grieving man needs to begin to put his life back together again. Any talk of walking the Irish people up the aisle again would simply not have been appropriate, as French president Nicolas Sarkozy put it, just seven days after the bereavement.

But Sarkozy and Germany's chancellor Angela Merkel, sent out clear, if coded, signals that they see Cowen's options as very limited. Eventually, and well before the European elections next June, the Irish people would again have to be asked to bring Lisbon's institutional reforms into force.

In theory there are only three options before Ireland and the EU: firstly, doing nothing, secondly, agreeing to Lisbon in some form, and, thirdly, finding a way to advance as 26 with Ireland either out of the union or in a reduced, semi-detached relationship to the rest.

The latter option is viewed as technically and politically hugely difficult and very much a minority-held last resort should Ireland vote No a second time. And yet there were old Brussels hands at the summit who recalled that when the Danes voted down Maastricht for the first time in 1992, by the narrowest of margins, one potential scenario very quietly developed involved precisely this option.

In this extreme scenario, to circumvent a Danish veto, Denmark's then 11 partners would signal their intention under the Vienna Convention on the Law of Treaties to repudiate the European treaties (a year's notice is required), resigning en masse from the community, and reconstituting themselves as a union of 11 under the Maastricht Treaty. The Danes' subsequent Yes put paid to such rash talk. The possibility of doing the same with 26 member states is viewed with deep scepticism.

Yet some, most notably Germany, have been arguing that part of the problem in Ireland resides in the absence of "moral hazard" for voters on Lisbon - the sense that they may be more inclined to vote No because they don't feel they will pay a price in terms of painful consequences.

Exposed to a choice involving a real price - Ireland's membership of the EU - they will, so the argument goes, come to their senses. And so Ireland, next time round, should put leaving the EU on the ballot paper as the automatic alternative to passing Lisbon. Even if desirable, such arm-twisting would be unlikely, however, to pass constitutional challenge.

Putting the issues separately on a ballot paper, as some are suggesting, could be useful in concentrating minds on the political reality that another No could force Ireland to look for a reduced, non-core status in the EU. But it could also produce a No to Lisbon and Yes to membership result that would clarify little.

The first option for Cowen, doing nothing, means the union falling back on the cumbersome Nice Treaty. Mr Sarkozy and many of his fellow leaders are adamant that this is simply not on. At Nice, as the final compromise was tortuously negotiated, he reminded journalists, the leaders had agreed among themselves that it was a treaty for 27 and no more. The imperative of enlargement into the Balkans, seen as key to keeping peace in the region, requires a new treaty and institutional reform.

Should the Government decide not to put Lisbon to the voters once more, or fail to win their support again, the option of surviving under Nice, however unpalatable to our partners, may well be forced on the union.

In those circumstances it is certain that many member states will wish to invoke the "enhanced co-operation" provisions of the treaty to allow projects to be undertaken by groups of states. That will mean the multiplication inside the union of parallel decision-making structures - akin to the separate euro group - many of them not involving Ireland, and an increasingly a la carteEurope. Ireland's long-held strategic desire to see Europe advancing, united as one, would be consigned to history.

Which leaves Cowen with one option, and, at that, one very circumscribed option - Lisbon, amended.

Ireland's negotiators can bring to their partners two types of proposed amendments: on the one hand, clarifying declarations, new protocols, or opt-outs that affect only Ireland; on the other, changes that will affect all of the union's member states. The former, like the declaration on neutrality in Nice, the abortion protocol in Maastricht, and the Irish and British opt-outs in Lisbon, should be relatively easy to negotiate, although protocols which are formal parts of the treaty are still likely to require re-ratification of the treaty by the other 26.

It is possible to conceive of several potential such clauses, most of which would simply be reassuring expressions of Ireland's interpretation of the Lisbon Treaty: a reaffirmation of the existence of national vetos on direct tax and WTO-like trade agreements; a reiteration of Irish neutrality, combining a commitment to European peacekeeping with an affirmation that Ireland will not be part of European common defence; an opt-out from the European Defence Agency and perhaps even Europe's nuclear agency, Euratom; a clarification of the state's right to protect public services; and a reiteration of the protection of the Irish constitutional position on abortion . . .

Sarkozy's categorical insistence on Friday that "renegotiation of the treaty is excluded" is likely to refer to the second category of amendments, those affecting all member states.

That would mean reopening the finely balanced compromise that is the treaty and also the requirement for re-ratification by all  member states, both viewed with horror by our partners.

Hence the potential appeal of a deal on restoring a permanent commissionership for all member states - Lisbon provides for the possibility that the leaders, acting unanimously, may choose not to implement the treaty's proposed reduction in commissioner numbers. A political declaration by the 27 that they would intend to proceed along those lines could give Ireland the key concession needed to reassure the public if accompanied by Irish-specific declarations.

Opinion polling shows the issue of "loss of power and influence" had strong traction with No voters, and anecdotally it is clear the commissionership was a potent issue for many.

Enough, in tandem with some reassuring declarations tagged on to the treaty, to win a second vote? Perhaps, the Government may calculate, just enough to swing a small, but decisive, section of voters. But it is unlikely to satisfy most of the No campaigners.

They have made clear that their ambition is not just to deal with Irish preoccupations, but to redirect the whole EU supertanker from its supposedly militarising, neo-liberal, and anti-democratic course. But, as Brussels made clear, the tanker's not for turning.

Patrick Smyth is foreign editor ofThe Irish Times