Lisbon Treaty: Defence
The articles pertaining to Defence are presented as it would appear in the amended constitution should the Lisbon treaty be passed. Also, extensive commentary by the Yes and No sides and by Vincent Browne.
Article 11 [24] [ex Art. 11 TEU
1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be:
— to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter,
— to strengthen the security of the Union in all ways,
— to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders,
— to promote international cooperation,
— to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.
1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.
The common foreign and security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 25b [40] of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 240a [275] of the Treaty on the Functioning of the European Union.
2. Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.
2. 3. The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council and the High Representative shall ensure that these principles are complied with compliance with these principles.
Article 28 [41]
[ex Art. 28 TEU, amended]
1. Articles 189, 190, 196 to 199, 203, 204, 206 to 209, 213 to 219, 255 and 290 of the Treaty establishing the European Community shall apply to the provisions relating to the areas referred to in this title.
2. 1. Administrative expenditure to which the provisions relating to the areas referred to in this title entail implementation of this Chapter gives rise for the institutions shall be charged to the Union budget of the European Communities.
3. 2. Operating expenditure to which the implementation of those provisions this Chapter gives rise shall also be charged to the Union budget of the European Communities, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise.
In cases where expenditure is not charged to the Union budget of the European Communities, it shall be charged to the Member States in accordance with the gross national product scale, unless the Council acting unanimously decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article 23(1) 15b(1) [31(1)], second subparagraph, shall not be obliged to contribute to the financing thereof.
3. The Council shall adopt a decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article 28 A(1) [42(1)] and Article 28 B [43]. It shall act after consulting the European Parliament.
Preparatory activities for the tasks referred to in Article 28 A(1) [42(1)] and Article 28 B [43] which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council shall adopt by a qualified majority, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When the task planned in accordance with Article 28 A(1) [42(1)] and Article 28 B [43] cannot be charged to the Union budget, the Council shall authorise the High Representative to use the fund. The High Representative shall report to the Council on the implementation of this remit.
4. The budgetary procedure laid down in the Treaty establishing the European Community shall apply to the expenditure charged to the budget of the European Communities.
Article 28 A [42]
[ex Art. 17 TEU, amended]
1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.
1. 2. The common foreign and security and defence policy shall include all questions relating to the security of the Union, including the progressive framing of a common Union defence policy,. which might This will lead to a common defence, should when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Article Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.
The progressive framing of a common defence policy will be supported, as Member States consider appropriate, by cooperation between them in the field of armaments.
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking.
3. Decisions having defence implications dealt with under this Article shall be taken without prejudice to the policies and obligations referred to in paragraph 1, second subparagraph.
4. The provisions of this Article shall not prevent the development of closer cooperation between two or more Member States on a bilateral level, in the framework of the Western European Union (WEU) and NATO, provided such cooperation does not run counter to or impede that provided for in this title.
5. With a view to furthering the objectives of this Article, the provisions of this Article will be reviewed in accordance with Article 48.
3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as “the European Defence Agency”) shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.
4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 28 C [44].
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 28 E [46]. It shall not affect the provisions of Article 28 B [43].
7. 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. This shall not prejudice the specific character of the security and defence policy of certain Member States.
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.
Article 28 B [43]
[new article]
1. The tasks referred to in Article 28 A(1) [42(1)], in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
Article 28 C [44]
[new article]
1. Within the framework of the decisions adopted in accordance with Article 28 B [43], the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task.
2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.
Article 28 D [45]
[new article]
1. The European Defence Agency referred to in Article 28 A(3) [42(3)], subject to the authority of the Council, shall have as its task to:
(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;
(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;
(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;
(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;
(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.
2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.
Article 28 E [46]
[new article]
1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 28 A(6) [42(6)], which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.
2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.
3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.
The Council shall adopt a decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.
A qualified majority shall be defined in accordance with Article 205(3)(a) [238(3)(a)] of the Treaty on the Functioning of the European Union.
4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned.
The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.
A qualified majority shall be defined in accordance with Article 205(3)(a) [238(3)(a)] of the Treaty on the Functioning of the European Union.
5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.
6. The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.
YES : These Articles on defence make it clear that there is no compulsion on Ireland to engage at all in military operations. The unaminity clause stated repeatedly is a guarantee of that. Ireland's current Constitutional prohibition on participation in common defence is carried forward in the proposed amendment to allow for ratification of Lisbon. Also, no mission can take place without the approval of all Member States, whether or not they are participating. The Government have made clear that the “triple lock” provisions – requiring a Government decision, Dáil approval, and UN authorisation – will continue to apply.
While Article 1.49(c) establishes an obligation of aid and assistance to any Member State which is the victim of armed aggression on its territory, importantly, however, it is clearly stated that this obligation “shall not prejudice the specific character of the security and defence policy of certain Member States”. It would therefore be for Ireland to take its own sovereign decision on whether and how to come to another Member State's assistance in the event of an armed attack, taking into account our traditional policy of military neutrality.
Re Article 1.49(c) on the Lisbon Treaty, Member States undertake to make civilian and military capabilities available to the Union to contribute to the peace support and crisis management objectives defined by the Council. For this purpose, in Article 1.49(c), they undertake “progressively to improve their military capabilities”. There are no specific requirements as to the level of military spending involved, nor is there any binding requirement to increase such spending. Modernisation and improvement of Ireland's military capabilities is, in any case, part of the Programme for Government. ( Fianna Fail)
Article 28a dealing with common security and defence policy. It requires that EU missions be based on “the principles of the United Nations Charter”. It lays down two protections for Ireland: every decision must be unanimous, while Member States who are neutral are protected by stating that nothing in the article “shall prejudice the specific character of the security and defence policy of certain member states. (Fine Gael).
NO : The requirement that ‘Members States shall undertake progressively to improve thier military capabilities', means they must spend more money on guns. Article 28D gives the European Defence Agency a mandate to ‘evaluate observances of the capability commitments given by Member States'. In simple, to ensure that they live up to their promises to spend more on the military. The Mutual Defence Pact makes it an obligation to come to the aid of a Member State which is the victim of a terrorist attack. In the context of the vague use of the term ‘war on terror' which can mean permanent warfare against a particular tactic, this is extremely dangerous. (Socialist Workers Party).
The Mutual Defence Clause is a collective self defence Article similar to NATO's. It means that the nuclear armed military alliance, the Western European Union's last remaining competence has now been transferred to the EU itself. (Peace and Neutrality Alliance)
The Treaty makes clear the EU commitment to a common defence and to an independent military capability. It requires Member States progressively to “improve their military capabilities” on the basis of recommendations from the European Defence Agency that will result in increased military expenditure. The Article also includes a Mutual Assistance Clause obliging each Member State to come to the aid of others if they are the victims of “armed aggression”. This is one of the defining features of military alliances, such as NATO. The Article also states clearly that any action, by the EU as a whole or of future mini-alliances much be consistent with NATO. While 28E outlines the detail of permanent structured cooperation. It makes clear that the formation and activities of such mini-alliances will be decided by qualified majority, making it impossible for the Irish state to block such alliances. ( Sinn Fein).
Articles 28 obliges Member States to increase arms spending, create the legal basis for a European super-state, an EU army, a common defence, licence the EU to engage in wars and import the logic of the US “war on terrorism” into EU policy. (People Before Profit Alliance).
This mililtarises the EU further, requiring Member States "to progressively improve their military capabilities and to come to the aid of any other Member State if it is attacked "by all means in their power" . (National Platform on EU Research and Information Centre).
Commentary: The European project started out essentially as a means of creating a single market among Member States. It was entirely an economic project. But, gradually other areas became involved and this was acknowledged in the Maastricht Treaty of 1992 which introduced the dimension of Common Foreign and Security Policy to the EU. This devised the idea of three “pillars”: the European Community itself, which remained essentially as an economic entity (with the supranational institutions of the European Commission, the European Court of Justice and the European Parliament), and the other two “pillars” Common Foreign and Security Policy and Justice and Home Affairs, which were to remain aloof from the supranational institutions.
While the Lisbon Treaty keeps the latter two “pillars” outside the competences of the supranational institutions, it does very much give a new dimension and impetus to the Common Foreign and Security Policy.
The Union's competence in matters of Common Foreign and Security Policy will cover “all” areas of foreign policy and “all” questions relating to security but this only “might” lead to common defence. There is the guarantee that it shall be implemented only on the basis of unanimity. There is a requirement on Member States to support the Union's external and security policy actively and “unreservedly” (Member States “shall”). The Council and the High Representative “shall” ensure compliance with “operational capacity” for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. This latter provision may seem reassuring but given the dominance of the United States on the Security Council of the UN, and its propensity to use the UN as a cover for its military ambitions, this may be less of an assurance than first appears.
There is however the “guarantee” of the unanimity clause and the reference to the “constitutional requirements” of Member States. Nevertheless the thrust towards a military dimension that the Lisbon Treaty re-enforces will “soften up” the Irish electorate towards acceptance of the emergence of a military alliance involving us.
There is the section in Article 11 [24].3 which states, without qualification, Member States “shall” make civilian and military capabilities available to the Union for the implementation of the Common Security and Defence Policy, which is ambiguous in terms of Ireland's right to “opt out”.
Then the disquieting bit: “Member States shall undertake progressively to improve their military capabilities”. Ireland, under this clause, will have no discretion but to “progressively improve” its military capabilities.
The military thrust of the Lisbon Treaty is further underlined by Article 28 A [42] 4: “ The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as “the European Defence Agency”) shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities”.
Aside from its other responsibilities this European Defence Agency will evaluate “the improvement of military capabilities” of Member States.
It is envisaged that there will be “permanent structured cooperation” on military matters and capabilities, although Ireland may opt out of this. Nevertheless, the military dimension of the EU is being further consolidated.
The military tasks envisaged (in Article 28 B [43]) shall include not just humanitarian and rescue tasks, but disarmament operations, conflict prevention tasks of combat forces in crisis management, including post-conflict “stabilisation”. And it is added: “All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories”. This is a very wide mandate and opens the way for EU involvement in military conflicts of almost all kinds. It remains true Ireland can opt out of all this and the “triple lock” mechanism applies, but the softening up of mind-sets, acclimatising the electorate to possible involvement in military escapades is very much underway in this Treaty.
Furthermore, the role of the European Defence Agency is further elaborated. For instance, it shall support defence technology research, contribute to identifying and, if necessary, implementing any “useful” measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure. Again Ireland need not be part of this Agency but the thrust towards the militarisation of the Union is very much present in all of this.
It is argued that this is marginal, because the “hard-core” military stuff will be undertaken by NATO. Perhaps, for the time being, but the EU is being set up to become a military outfit all on its own by this Treaty. Yes, Ireland may opt out, but, in time, will it?