Lisbon guaranteesTuesday 08 September 2009 12.16
RTÉ Europe Editor Sean Whelan analyses the legal status of the guarantees given to the Government on the Lisbon Treaty
Just how legally binding are the guarantees that the Government got at the EU summit?
The agreement in Brussels gives Ireland legally binding guarantees on taxation, military neutrality and social and family affairs.
How do we know they will be legally binding? Because of the form of the agreement to be made.
The guarantees come in the form of an international agreement, made under public international law by sovereign states, and registered at the United Nations.
The draft that leaked states the agreement is 'An agreement between the heads of state or government of the 27 member states of the European Union'.
In other words, it is in the form of an international agreement or treaty, governed by the terms of the 1969 Vienna Convention on International Agreements.
The Vienna Convention is the 'treaty of treaties'. It is a UN treaty that sets the rules for legally binding agreements between sovereign states.
Its most widely cited article is article 26 – which starts 'Pacta sunt servanda' (Agreements must be kept – arguably the oldest principle in international law). 'Every treaty in force is binding upon the parties to it and must be performed by them in good faith.'
The agreement on the Irish guarantees will in effect be a treaty in its own right. It would come into force on the same day as the Lisbon treaty (if it is ratified).
Both would then be registered at the UN under the terms of the Vienna Convention. So the guarantees would be binding in international law, not just EU law or Irish law.
What about the protocols?
A protocol is an addition to a treaty or an international agreement.
The Government wants to have the legal guarantees copper fastened by incorporating them into the EU treaties as protocols.
This is seen by others as a belt and braces approach – in other words, not strictly necessary, as the international agreement registered at the UN will give the necessary legal guarantees on its own.
Opponents of the Lisbon Treaty such as the Peace and Neutrality Alliance claim that unless the guarantees are protocols they will be worthless.
But in order to attach a protocol to a treaty it must be ratified by all the member states.
So if the Irish want a protocol, they either send it out to be ratified by all the member states – which will delay the treaty coming into force, and hold up the appointment of a new Commission.
Or they wait for another treaty to come along, and attach it to that. The most likely is an accession treaty, which makes technical changes to the EU treaties when another country joins the Union.
Croatia and Iceland are the leading contenders to join soon.
Because the guarantees are being done as an international agreement they will have immediate effect, whereas adding a protocol will take time, possibly a number of years.
What did the Danes do?
The Irish government says it is following the precedent set down by the Danish government following the rejection of the Maastricht treaty in a referendum there in 1992. (No 50.7%, Yes 49.3%, Turnout 83.1%)
It was the Danes who came up with the idea of using an international agreement at the Edinburgh summit in 1992 to clarify the terms on which the Maastricht treaty would apply to the Danes.
The terms of this agreement were later written into the EU treaties as a protocol to the Amsterdam treaty in 1997.
But only because the terms of the treaties had been changed by the Amsterdam Treaty, which necessitated a specific Danish protocol being added.
The Danish Permanent Representative (Ambassador) to the EU, Poul Christoffersen was heavily involved in preparing the Edinburgh Agreement.
In an interview with RTÉ News, he explained the steps Denmark went through with its legally binding guarantees. But he also expressed surprise that the Irish were seeking to have their guarantees written in as a protocol, saying such a move was not legally necessary.
Watch the interview
Denmark's second referendum on the Maastricht Treaty was held entirely on the basis of the Edinburgh agreement.
In the referendum the treaty was approved by 56.7% Yes to 43.3% No - with a turnout of 85%.
It seems the Irish government feels it is politically necessary to get the guarantees attached to the EU treaties as protocols at some later date.
That could present some political problems for other countries, notably Britain, Holland and Poland. Sorting that issue out is likely to be the most time consuming part of the Irish question at the summit.