The 'Irish' Protocol on Defense: a simple cut and paste… Really?

(B2) Presented as a 'simple clarification' of the Lisbon Treaty, the protocol requested by Ireland (and agreed to by the 27 at the last summit (1)) to facilitate the ratification of the Lisbon Treaty by the Irish seems to me a little more than a simple cut and paste of the provisions of the Treaty.

Let's face it. This text specifies, in fact, in the section devoted to 'security and defence', a few points which until now remained unsaid. However, setting the unsaid in stone means legally limiting the room for manoeuvre. Moreover, this text does not strictly target Ireland but all the Member States (with Ireland), which is singularly different. Finally, what must be called the provisions of this 'Irish' protocol have (like all
protocol) the same legal value as the Treaty itself. It is not secondary law (derivative) but primary law (with constitutional value). Any clause of the protocol therefore has the same value as the article or provision to which it refers. A few remarks on the main clauses of this protocol...

• NB: I classify them with 1, 2 or 3 stars, according to their presumed importance: * no change, ** formal change, *** contextual or content change.

Solidarity clause(s) ***. The protocol states: It will be up to the Member States to determine the nature of the aid or assistance to be provided to a Member State which is the object of a terrorist attack or is the object of an armed attack on its territory. »

• This provision refers not to the 'solidarity clause' but to the two solidarity clauses contained in the Treaty of Lisbon. One (Article 42) provides that " in the event of armed aggression on its territory, the other Member States owe it aid and assistance by all means in their power.. The other (article 222) is more restrictive. She proclaims that " The Union mobilizes all the instruments at its disposal, including the military means made available to it by the Member States » in two cases: 1) terrorist threat or attack; 2) natural or man-made disaster. " The procedures for the implementation by the Union of this solidarity clause are defined by a decision adopted by the Council. (...) When this decision has implications in the field of defence, the Council decides (unanimously). » Arguably, the provisions amount to the same thing. But this has a value, at least semantically different. Since the protocol implies that it is up to each state to determine the aid. The dynamic is vastly different between in the event of an attack, we will jointly decide on the means of response » or " in the event of an attack, each Member State will determine the means to be provided".
• In fact, it is an addition, a further limitation. Whatever one may say, the EU solidarity clause of Article 222 is diminished, downgraded to the operative part of the standard clause of Article 42. But does it really matter? No. It is, in a way, a return to reality. It seems logical that in the event of a terrorist attack, for example, in the United Kingdom by the IRA, or in Spain by the ETA, that Lithuania or Greece react differently from Ireland or France. NB: note that this limitation is only valid for the first point of the solidarity clause (terrorist threat), not the second (natural or human disaster). It therefore strictly concerns only the 'military' threat and not the 'civilian' threat.

Common defense *. The protocol states: Any decision leading to a common defense will require a unanimous decision of the European Council. »

• It is a carbon copy of Article 42 of the Lisbon Treaty.

Specificity of the policy of each Member State *. " Nothing in this Section shall affect or prejudice the position or policy of any other Member State with respect to security and defence.. »

• The copy-paste is integral, with article 42-2. So ... integral that we didn't even need to remove the word "section"!

Permanent Structured Cooperation and Defense Agency **. The protocol states: It is also up to each Member State to decide, in accordance with the provisions of the Treaty of Lisbon and its possible internal legal rules, whether it participates in the permanent structured cooperation or in the European Defense Agency. »

• It is also a true copy of the Lisbon Treaty, at least for permanent structured cooperation (article 46) which does not yet exist. For the Defense Agency, it's more confusing. Because this agency has already been created. And Ireland is already participating. The decision creating the agency (of 12 July 2004) already provides that " Any Member State wishing to participate in or withdraw from the Agency shall notify its intention to the Council and inform the (High Representative). » And the Lisbon Treaty only reinforces it. " The European Defense Agency is open to all Member States wishing to participate. » This reaffirms the principle of 'participation à la carte' for the Defense Agency.

European Army ***. " The Lisbon Treaty does not provide for the creation of a European army or conscription for any military training. »

• No provision actually exists to this effect, either directly or indirectly, in the Treaty. The creation of a European army is a fantasy of some eurosceptics and a lure of some federalists. But it was never envisaged as an explicit European project. However, no denial had so far been clearly affirmed by European officials, by mutual agreement. Even during the campaign on the referendum in Ireland, the EU had remained very silent, thereby legitimizing certain distorting comments. This affirmation is therefore welcome, fully interesting, both from a legal and political point of view.

Military expenditure and defense capabilities **. " It does not affect the right of Ireland or any other Member State to determine the nature and volume of its defense and security expenditure or the nature of its defense capabilities. »

• It seems obvious. But here again the Lisbon Treaty is not so explicit. On the contrary, it provides that " Member States undertake to gradually improve their military capabilities » (item 42).

Military operations **. The protocol states: It will be for Ireland or any other Member State to decide, in accordance with its internal legal rules, whether or not it participates in a military operation. »

• This is the practice followed so far: no country is ever required to participate in a military operation. And the EU has no coercive power in this matter. All decisions must be taken unanimously (at 26 states - Denmark not participating in military defense policy). This is the whole problem, moreover, for each operation to bring together the necessary forces (in these famous force generation conferences where it is rare to reach the minimum required in a single session). But as paradoxical as it may seem, this principle is not enshrined in black and white in the Treaty. It is in itself an innovation.

Finally...

Two questions ...

1) What is the nature of this protocol? One opt-out Irish. Not really. Because most of the provisions do not only target Ireland but all the Member States. Other States are free to claim these provisions.

2) Does it advance defense Europe, with the " details », who are " clarifications » what does it lead?

Advance would no doubt be a very big word. But to speak of a retreat would be just as erroneous. In any case, the first merit of this protocol is to put down certain precepts which could weigh negatively on Defense Europe. It makes some of the recommendations of the Lisbon Treaty more realistic. It reintroduces to each of the possible decisions, the notion of sovereign state.

... and a note

To modify European primary law (the Treaty), it was not deemed necessary - this time - to convene an intergovernmental conference. It is the European Council which decides, alone, in its soul and conscience, to add an element to the Treaty. Because on the legal level, it is a certain fact, even if we can discuss the contribution of the content, there is indeed a new protocol which is added to the device of the two texts (treaty on the European Union and treaty on the operation of the European Union) set up by the Treaty of Lisbon.

(1) Read Agreement of the 27 on an 'Irish' protocol on Defense

* no change, ** formal change, *** contextual or content change