Submission to the National Forum on Europe
John Goodwillie, Secretary, Irish Campaign for Nuclear Disarmament
The Irish Campaign for Nuclear Disarmament was founded in 1958. Its aims include seeking "all measures of disarmament, including unilateral measures, as steps towards complete abolition of all weapons, leading to nuclear disarmament and general and complete disarmament." In 1959 the United Nations adopted the aim of general and complete disarmament, meaning that forces would be sufficient only to maintain order and assist United Nations operations.
Irish CND believes that alignment with a military alliance which possesses nuclear weapons would implicate Ireland in a strategy which envisaged the use of nuclear weapons, and therefore supports the maintenance of Irish neutrality.
The development of the European Union and its Common Foreign and Security Policy has severely diminished the possibility of Irish neutrality despite assurances that neutrality was being protected. This submission argues that the European Constitution would diminish it to the point at which little residue would remain, and that the most obvious interpretation of the clause on mutual defence would destroy it completely.
In 1996 the International Court of Justice issued an Advisory Opinion that the posession of nuclear weapons that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law." Britain, France and the United States have all made it clear that in certain circumstances they would use nuclear weapons without such weapons having been used against them.
The development of civil nuclear power can provide a potential for nuclear weapons, as the present claims being made on Iran's nuclear programme show. The processes of enrichment and reprocessing of nuclear fuel can produce militarily useful material, so that any widespread diffusion of civil nuclear power creates the danger of proliferation of nuclear weapons. In this context the European Constitution through Protocol 36 incorporates without substantial change the commitment of the European Atomic Energy Community (Euratom) to developing civil nuclear power.
COMMON FOREIGN AND SECURITY POLICY
Many of the provisions in the Constitution relating to the Common Foreign and Security Policy are subject to a rule of unanimity. However, the fact that Irish foreign policy is being determined by discussions held within the EU institutions puts the Irish government in a position where the interests and policies of stronger member states are bound to override Irish interests and policies some of the time, since the decision-making process depends on willingness to compromise. As the Supreme Court ruled in the Crotty judgment, the fact that decisions are made by this process of consultation, even when requiring unanimity, is a diminution of Irish sovereignty and freedom of action.
The European Constitution extends the scope of this unanimous decision-making. Article III-293 gives the European Council the right to set further objectives on the basis of Article III-292 which sets out the objective of preventing conflicts. Article I-5.2 requires member states to "facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives." Article I-18.1, known as the Flexibility Clause, permits the Council of Ministers, with the consent of the European Parliament but without a process of national ratification, to adopt measures which it considers necessary to attain the objectives in Article III-292 even though the Constitution has not provided it with such powers.
Article I-40.4 requires Ireland to use its resources to put the Common Foreign and Security Policy into effect. This includes cases where the European Council agreed under Article III-300.3 (the "Passerelle Clause") to allow decisions to be made by qualified majority vote.
The establishment of an EU Minister for Foreign Affairs will inevitably reduce the scope of action of the Irish Minister for Foreign Affairs. This scope will be further reduced by the requirement on Ireland to consult the other member states "before undertaking any action on the international scene or any commitment which could affect the Union's interests" (Article I-40.5). This appears to prevent any possibility of the Irish government taking an initiative without first discussing it within the EU.
Article I-41.1 ("The common foreign and security policy ... shall provide the Union with an operational capacity drawing on civil and military assets") clearly envisages that Irish military assets might be made available. Article I-41.3 requires Ireland to improve its military capabilities.
Article I-41.2, by using the phrase "this will lead to a common defence", strengthens the existing commitment phrased as "might lead to a common defence".
The tasks on which the Common Security and Defence Policy can operate is extended from the "Petersberg tasks" already in force to cover joint disarmament operations, military advice and assistance, conflict prevention, post-conflict stabilisation, and "supporting third countries in combating terrorism in their territories" (Article III-309.1). Most wars are justified by one side if not both as "conflict prevention", which suggests that there will in practice be few limits. The provisions for structured co-operation in the military field (Protocol 23) envisage that those participating will make combat units available for such tasks. These activities, undertaken in the name of the European Union, would implicate non-participants such as Ireland (assuming that Ireland will not participate in structured co-operation, an assumption for which there is no guarantee).
While some of the new provisions are excluded from the jurisdiction of the European Court of Justice, and their meaning is not always clear, the following provisions mentioned above are subject to the jurisdiction of the Court: Article I-5.2 (facilitating the achievement of the Union's tasks), Article I-18.1 (flexibility), Article III-292 (objective of conflict prevention).
THE MEANING OF NEUTRALITY
There may not be a consensus on the full implications of Irish neutrality. But there probably has been a consensus that one of the implications of neutrality is that we do not join a mutual defence pact.
If Ireland joined a mutual defence pact, our defence would rest in the final analysis on the defence strategy of our European partners, which means in present circumstances the defence strategy of NATO. And that strategy is based on the willingness to use nuclear weapons, a threat from which most Irish people would probably wish to dissociate themselves.
THE SOLIDARITY CLAUSE
The obligations envisaged by the "Solidarity Clause", Article I-43.1, are vague. The Union is to "mobilise all the instruments at its disposal, including the military resources made available by the Member States". This implies that the Member States are expected to make military resources available in advance of any terrorist attack or disaster, since if they had not been made available in advance, the Union would not be in a position to mobilise them. Article III-329.1 requires other member states to assist the attacked state "at the request of its political authorities". This appears to be a definite commitment to mutual defence. This Article is also subject to the jurisdiction of the European Court of Justice.
The European Constitution includes a commitment which is extraordinarily similar to the mutual defence commitments required by NATO and the WEU. Article I-41.7 provides that the member states will have "an obligation of aid and assistance by all the means in their power" to assist any member state which is "the victim of armed aggression". How does this differ from the commitments in the NATO and WEU treaty which are expressed in almost identical wording (see Box)?
The Parties agree that an armed attack against one or more
of them in Europe or North America shall be considered an attack
against them all and consequently they agree that, if such an
armed attack occurs, each of them, in exercise of the right of
individual or collective self-defence recognised by Article 51
of the Charter of the United Nations, will assist the Party or
Parties so attacked by taking forthwith, individually and in
concert with the other Parties, such action as it deems necessary,
including the use of armed force, to restore
If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all military and other aid and assistance in their power. (Article V.)
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 the means in their power, in accordance with Article 51 of the United Nations Charter. (Article I-41.7.)
(It should be mentioned at this point that although the WEU is almost defunct as an organisation, having handed over functions to NATO and the European Union, its treaty is still in force.)
In fact, a close comparison of the wording shows that the European Constitution commits us to much more than the NATO treaty, since the latter permits member states to choose what assistance they will give ("such action as it [the member state] deems necessary"), whereas both the WEU treaty and the Constitution require states to give "all military and other aid and assistance in their power" (WEU treaty) and "all the means in their power" (Constitution).
The clause which the Government claims guarantees Irish neutrality is contained in the sentence of the European Constitution immediately following the one in the box: "This shall not prejudice the specific character of the security and defence policy of certain Member States." This phrase has been used in the other EU treaties to indicate the neutrality of Ireland and other neutral states. But in the new context, what does it mean? One could put the two sentences in simple language as "We promise to help you if you are attacked, but we are still neutral." Could this mean "We promise to help you if you are attacked but, of course, being neutral, we can't make you such a promise, so you will have to disregard it"? It seems extraordinary to suggest that we have signed a treaty making and cancelling a promise in the one breath. The only alternative meaning is "We promise to help you if you are attacked, and that promise is binding, but don't use this to suggest that we're not neutral in any other context."
But what are such other contexts? If we are bound into what is in effect a mutual defence pact, in what sense can we remain neutral?
The sentence of the European Constitution after the one supposedly guaranteeing neutrality is: "Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation." For NATO members, this is a guarantee that the commitments and organisational structures of NATO are not superseded by the Constitution; and since they already have a mutual defence commitment to each other through NATO, they don't have to worry too much about the extent of their new commitment. But the existence of these NATO commitments cannot alter the fact that NATO members of the EU are now pledging to come to Ireland's assistance if we are attacked, and likewise Ireland to come to their assistance.
This effective link to NATO appears to rule out any requirement of obtaining a United Nations mandate for measures of collective defence.
In its October publication Europe re-united, the Institute of European Affairs claims "Article I-41(7) is not a mutual defence pact. The clause is reactive, aimed at dealing with the aftermath of an armed aggression. It does not legitimise pre-emptive military strikes as it is confined to the territory of the Union in response to an attack." It is impossible to follow this argument. Given its similarity to the mutual defence provisions of NATO and the WEU, the Article is clearly about mutual defence; the Constitution is clearly a pact; and mutual defence pacts are about mutual defence, not about pre-emptive strikes - if they were about pre-emptive strikes, all NATO members would have had to agree with the United States' pre-emptive strike on Iraq.
Of course, it is legitimate to argue that Ireland ought to abandon its neutrality at this stage. Equally, it is legitimate to argue that there are so many good things in the European Constitution that we should on balance accept it.
But it would be tragic if the Irish people accepted the European Constitution in the belief that neutrality was guaranteed, only to discover too late that the words in Article I-41.7 mean what they say and that our neutrality had effectively ended.
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