OPINION:Ireland's EU partners have made a serious effort to accommodate concerns expressed in the Lisbon Treaty vote, writes Pat Cox
SEEKING TO strike a balance between recognising, respecting and addressing the concerns of the Irish people while maintaining the country's position at the heart of the European Union is how the Oireachtas sub-committee on Ireland's Future in the EU characterised its deliberations. Striking that balance has been the task of government.
Prior to our referendum on the Lisbon Treaty, 10 EU member states had voted to ratify it. Last June, the Irish electorate clearly rejected the treaty. Since then a further 15 states have voted for ratification through their national parliaments. In two cases, Germany and Poland, the instrument of ratification awaits signing by the head of state.
This leaves only the Czech Republic, whose government has signalled its intention to ratify in the coming months during its EU presidency. However, it is abundantly clear that their deeply Eurosceptic president, Vaclav Klaus, will not sign so long as the Irish people have not ratified the treaty.
There is clearly no appetite for renegotiation or for convening another intergovernmental conference. For the past several months the Government has sought to negotiate between the rock of the Irish rejection of the treaty and the hard place of the democratic preferences of its EU partners. The current EU summit now reveals the essential contours of what is proposed.
A key concession is the European Council's unanimous agreement to allow each member state to nominate a commissioner in perpetuity. This concession does not require a change to the Lisbon Treaty, which already provides the European Council with the right to decide the number of commissioners, subject to unanimity.
What has changed is the spirit in which the rule will be interpreted. The original intention was that with future enlargement the council would decide every five years on the appropriate number of commissioners consistent with the rotation principle, whereby all states would have been without a commissioner for five of every 15 years. That rotation principle has in effect been abandoned by this decision.
It is a major compromise and, if language has any meaning, is far from "showing contempt for the democratic decision of the Irish people" as asserted by Declan Ganley of Libertas in Brussels yesterday. Indeed during a debate which we had in Allied Irish Bank's headquarters in Ballsbridge before the referendum in front of an audience of 500, when asked if he had to pick what the most important thing to change in the Lisbon Treaty would be, Ganley replied, without hesitation, that it would be the retention of Ireland's commissioner.
The idea of a smaller commission was to try to ensure that this critically important institution would act and be seen to act in the common European good through a fair but efficient rotation system. The thinking was that it should be more visibly European in its vocation and make-up in contrast to the two other political institutions, the council, representing the states' interests, and the parliament, representing constituents.
In addition, given the significant but limited range of EU competences, many believe there are insufficient portfolios of substance to give meaningful jobs to an ever-expanding college of commissioners. We may by default end up with senior and junior commissioners not in terms of formal status but by virtue of the political weight or weightlessness.
The intention is that eventually all the states of the western Balkans will join the EU. These include Croatia, Serbia, Montenegro, Bosnia and Herzegovina, and the Former Yugoslav Republic of Macedonia, Kosovo and Albania. Their accession would under the Irish compromise bring the size of a future commission to 34. What has been agreed to satisfy Irish preferences is a significant compromise, with important implications for the commission.
There also is a willingness to give Ireland legal guarantees on taxation policy, family, social and ethical issues and common security and defence policy with regard to Ireland's traditional policy of neutrality - a "what we have we hold" formula.
The precise texts and expression of their "legal guarantee" remain to be formulated but the roadmap and the journey it implies are clear. We are entitled to await the devil in the detail, but the willingness of our EU partners to contemplate such guarantees across a wide range of issues entitles them to more than disdain and misrepresentation.
This is not bullying. This is not contempt. This is not an attempt to fool the people.
Protocols which carry the same force in law as articles in a treaty could offer legal guarantees but there is no precedent for adding these after the close of an intergovernmental conference and after almost all states have completed ratification. Political declarations agreed by all member states and annexed to the treaty could provide an alternative route to clarify issues and reassure Irish public opinion.
Declarations, however solemn their political intent, risk being dismissed as inadequate, so it is important to understand that options and precedents exist for legally guaranteeing such declarations. If we are going to have this debate again, better that we get our facts right at the outset and not fool ourselves before we talk of fooling the people.
Here the precedent of the Danish opt-outs from the Maastricht Treaty is instructive. The Edinburgh Agreement (1992) between Denmark and the then 11 other EC member states was lodged with the UN in New York. Formally speaking this was a text neither of the EU nor of the European Council but rather was agreed by the heads of state and government as the high contracting parties in law. It constitutes an international agreement and as such is justiciable in international law.
It is not merely a set of politically expedient, if solemn, expressions of intent. This or some such formula is likely to be the negotiating target of the Government.
An alternative could be a retrospective vote to legally recognise any new Irish-oriented declarations made in the coming months at an early future date, for example the next round of member state ratifications of an accession treaty for an acceding state such as Croatia.
By either of these means the process would seek to offer legally binding reassurances to the Irish electorate on a range of sensitive issues as a prelude to any future referendum.
Other alternatives may well exist and could come to the fore, but the important thing is the willingness of our EU partners to legally guarantee their response to Irish sensitivities. Much remains to be done, but this is a good and impressive start and as the seanfhocal says: tosnú maith leath na h-oibre.
Pat Cox is a former president of the European Parliament