Lisbon 'alliance' is a step too far
OPINION:A neutral state cannot legally or politically sign up to the Lisbon Treaty mutual assistance clause because it violates neutrality, writes Karen Devine.
I WISH to thank Patrick Keatinge, Peadar Ó Broin and Ben Tonra for raising points in their article of December 6th about my article on neutrality and the Lisbon Treaty, published in The Irish Timeson November 27th.
They claim that "Dr Devine makes two startling comments, including the claim that the Lisbon Treaty creates 'a new EU military alliance'." The article did not say this. The article referred to "the article 28A(7) mutual defence clause that effectively constitutes a new EU military alliance".
Article 28A(7) states: "If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all means in their power."
Academics have emphasised that "the main part of an alliance is focused on a specific behaviour that shall be followed in the event of a certain situation, the so-called casus foederis. This element distinguishes alliances from mere security co-operations." (Bergsmann in Reiter and Gartner, 2001).
Bearing this emphasis in mind, it is worth considering the following reasons why this part of the clause effectively constitutes a new EU military alliance and prejudices neutrality:
(1) Legally, the meaning of "obligation of aid and assistance by all the means in their power" is sufficiently wide to include military means; the only way to exclude military means is to ensure the clause expressly stipulates this exclusion.
(2) The existence of the separate solidarity clause in Article 188R of the Lisbon Treaty indicates that Article 28A(7) collective defence clause is not merely a solidarity clause mandating a non-military response.
(3) "By all the means in their power" does not imply that member states can pick and choose what to help with. It arguably involves a greater commitment of aid for a member state subject to armed aggression than Nato's article V guarantee.
(4) Although Daniel Keohane claims the Western European Union (WEU) military alliance is defunct (December 11th), it is true to say that the process of transferring the functions of the WEU to the EU that started with the Amsterdam Treaty will be completed once the WEU collective defence element in Article V of the Modified Brussels Treaty contained in Article 28A(7) of the Lisbon Treaty is ratified. As Trybus puts it: "the introduction of a collective defence commitment [in the then Constitution, now Lisbon Treaty] allows the transfer of the most important remaining function of the WEU to the EU" (2005: 353).
The case that the Article 28A(7) clause effectively constitutes a military alliance and prejudices neutrality might not be a "startling" proposition to Keatinge et al. given that Keatinge argues that "[neutrality's] antithesis is membership of an alliance" (1984: 127) and in his research for the Institute of European Affairs Keatinge refers to "mutual assistance obligations [in terms] of an alliance commitment" (1996: 129) and identifies that "a mutual assistance guarantee is a legally binding promise to provide military help to a fellow member state which has been attacked" (1996: 131).
A neutral state cannot legally or politically sign up to the mutual assistance clause in the Lisbon Treaty because it is an alliance commitment that violates neutrality.
From the point of view of neutrality, the legal implications of the Lisbon Treaty are important and significant. The Lisbon Treaty creates a new "European Union" that has legal personality; this provides a basis for the EU to act in the realm of international affairs. For example, MEPs argue that the EU should become a fully-fledged permanent member of the UN Security Council as soon as its legal personality is recognised, and that the future EU foreign minister provided for in the Lisbon Treaty should represent the EU on the security council. The European Court of Justice's lack of jurisdiction highlights the problem that the Common Foreign and Security Policy and Common Security and Defence Policy suffer from both a democratic deficit and a deficit regarding the rule of law.
Another important issue concerns securing Article 29.4.9 of the Irish Constitution (that prevents the Irish Government from adopting a decision of the European Council to establish a common defence) in a legally binding protocol to the Lisbon Treaty.
Keatinge et al. correctly point out that "a European Union 'common defence' was first included in the Maastricht Treaty in 1992 as a policy that member states may wish to create". However, the Nice Treaty Article 17(1) refers to the "progressive framing of a common defence policy, which might lead to a common defence" and the Lisbon Treaty changes this wording to "will lead to a common defence".
Common defence can be interpreted as the EU term for collective defence. A neutral state cannot legally or politically sign up to this Article 28A(2) in the Lisbon Treaty because it confirms a definite, rather than a possible, intention to create a common/collective defence that involves going beyond military alliance commitments.
Keatinge et al. take the fact stated in my article "opt-out protocols are the only way to avoid these obligations" and appear to turn it into a false statement of advocating an opt-out to the entire European Security and Defence Policy (CSDP) and alignment with an interest group, by referring to "Pana [the Peace and Neutrality Alliance] and Dr Devine's preferred position". I am happy to state that I am not a member of, nor have any affiliations with, any political parties or groups (including Pana) advocating either the Yes or No side of the campaigns on the Lisbon Treaty.
Keating et al. indicate that a defence opt-out would "endanger our soldiers" and would preclude Ireland from participating in operations the Defences Forces are currently participating in, such as Chad and Bosnia. I submit that these arguments are questionable (which does not imply advocacy of CSDP opt-outs).
Firstly, the Lisbon Treaty's security and defence provisions have nothing to do with Irish Defence Forces' high-intensity training, which has been and can continue to be achieved through Ireland's membership of Partnership for Peace (PfP).
Secondly, states that are not members of the European Union (and have not ratified the Maastricht, Amsterdam and Nice treaties' defence provisions), have pledged contributions to and participate in EU military crisis management operations.
For example, Ireland currently participates in the EUfor mission in Bosnia with the non-EU states of Switzerland, Chile, the Former Yugoslav Republic of Macedonia, Albania and Turkey. Ireland is currently the third largest contributor to the EUfor mission in Chad, a mission that non-EU states such as Croatia, Turkey, the Former Yugoslav Republic of Macedonia and Russia have announced their intentions to participate in.
• Dr Karen Devine is a postdoctoral fellow at the school of law and government in Dublin City University. Her three-part series on neutrality. published in The Irish Timeson November 25th, 26th and 27th, may be read on this website.