Your vote now is pivotal. You are voting not just for yourself, but for future generations, since the transfer of competency to the European Union is irrevocable and not the subject of future vote. Amendment of Treaties is the moment of greatest control over the process of determining the constitutional shape of Europe. Once a European Treaty is enacted, Ireland, generally speaking, has limited representation and voting rights and can be outvoted. There is no provision for cessation of membership or retransfer of competence from the Union to the states.
The greatest degree of control is given by the procedure presently engaged. That is the procedure for amendment of the constituent treaties (Article N, EU), which has produced the Treaty of Amsterdam and requires unanimous ratification. If the people refuse to licence the State to ratify, Ireland's present legal entitlements under the status quo are preserved and the Treaty cannot come into force. If the people agree, and all the other states ratify, then the states integrate more closely with the following constitutional changes. These changes may be good or bad. Here are some of the most significant.
The Question
The people entitled to vote have been asked to license the State to ratify the Treaty of Amsterdam on May 22nd, and to adopt further constitutional changes thereunder without future referendums. If the Treaty enters into force it will amend the present treaties which constitute the European Union (created in the Maastricht Treaty) and the European Communities (the European Community, the European Coal and Steel Community, and the European Atomic Energy Community).
Future changes
The people's control over future changes is reduced by the proposal in two ways. First, at the European level, the Treaty of Amsterdam provides for a new Title VIa (EU) an Article 5a (EC) which allows for some Member States to proceed with closer co-operation, using the institutional structures of the EU and EC, without requiring further Treaty amendment. So there is loss of the present control over the pace of integration, where all member states must proceed together unanimously. Second, at a domestic level, since the wording of the amendment provides for control by the Oireachtas in some areas which are presently controlled by constitutional amendment by the people. This makes the process of change easier and more flexible and not dependent on plebiscite approval.
Change of constitutional basis of union
The Union is presently founded on the member states. The new Article F founds the Union on principles. This is a change of constitutional basis away from the member states. The proposed new Article F.1 subjects each member state to general discipline by the Union, for breach of the Article F principles upon which the Union is founded. This too is a change of constitutional basis.
The immediate practical effect of the changes to Article F and the insertion of Article F.1 is that the other member states are entitled, if they determined that Ireland maintained a serious and persistent breach of the Article F principles, to suspend Ireland's rights and benefits (for example, structural funds, voting rights in the institutions, citizens' right to travel in the Union) whilst maintaining the obligations. Ireland also would be empowered, acting together with thirteen other member states, to determine that another member state was guilty of such a default and suspend its rights and benefits.
Increasing the power of the executive
The Treaty increases the definition of the core elements required by public international law for the recognition of a state: population, territory, and political authority. The really significant development is in the last element. (a) Population: Strengthening citizenship (a concept which also implies common allegiance and political authority); Article 5 (ToA) on uniform electoral procedure for direct elections to Parliament. The Treaty maintains the idea of a union of peoples, not a single people. Federations can have several peoples.
(b) Territory: The introduction of the concept of a common area (of freedom, justice and security). The borders of the Community are still defined by reference to the borders of the member states.
(c) Political Authority: the greatest institutional weakness of the Community is its reliance on national administrations and the restriction of its executive arm to administration, typified by the Commission. The proposed Treaty cements the role of the Western European Union as the military arm of government. However, this competence is limited. The Treaty also brings Europol in as an embryonic police force. Again, this competence is limited.
Defence
As above, the Western European Union will provide the military institutional structure. There has been odd stuff written about the extension of the defence competence itself. Neutrality is not constitutionally mandated: rather there is a present national sovereignty to independently decide. If the European Council decides in the future to establish a common defence, then there are some safeguards. The main point, however, is that the Treaty provides for the immediate competence to progressively frame a common defence policy without further amendment. This is to include the competence to wage war (peace-making through military force). The distinction between a common defence policy and common defence, whilst it exists, is grey.
Consider the distinction in another context. There is provision in the existing Treaties for the establishment of a common agricultural policy, CAP, but no provision for the establishment of a common agriculture. Can it be said that Ireland maintains its independence in agriculture? How people can say that a present progressive common defence policy does not affect neutrality, and why they want to say it, instead of advocating the military involvement they support, is beyond me. Ireland will be engaged in the common military policy of Europe. Up to you.
Police
Article K (EU) is radically amended. The Title is changed from "Provisions on co-operation in the fields of justice and home affairs" to "Provisions on Police and Judicial Co-operation in Criminal Matters". The competence includes operational co-operation, joint teams, and collection, databasing, and exchange of information. Europol is to be the institutional framework. However, this is far from a common policing policy.
People in Ireland
The incorporation of visa and immigration policy into the competence of the European Community means that the question of who can enter and stay on the national territory becomes a matter of Community competence.
Diarmuid Rossa Phelan is a barrister the and Jean Monnet Lecturer in European Law in TCD.