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Lisbon Treaty: worthless guarantees pave way for second referendum

JM Thorn

26 June 2009

This week the Taoiseach Brian Cowen announced that a second referendum on the Lisbon Treaty would be held in October.  The announcement followed on from a meeting of European Council at which the heads of governments agreed to issues number of guarantees that would address the range of issues on which the Treaty was defeated the first time round. 

The Irish government hailed the outcome of the Council meeting as a great success.  Brian Cowen claimed that its two aims - of getting “legal guarantees” and “a commitment to a protocol” – had been achieved.  Such statements, alongside the enthusiastic response of the mainstream media, certainly gave the impression that some real change had been made to the Treaty.  However, when we examine the status of guarantees and the promise of a protocol we find that this is not the case.

For a start the legal status of the guarantees on Irish policies on military neutrality, taxation, family law and other social issues, is precarious to say the least – they are far from “legally binding”.   More fundamentally, the guarantees do not revise the Lisbon Treaty.  This was made clear that in the statements of heads of government on the agreement reached.   French President Nicolas Sarkozy stressed that the Irish guarantees would not affect the other 26 member countries. British Prime Minister Gordon Brown was even more explicit, claiming that the guarantees were “no different from any other clarifications in other states” and that any protocol would "only be subject to ratification at the time of the next accession treaty".   This is a reference to the expected accession of Croatia in 2010/2011.    The promised protocol will not be ratified by member states until long after the second rerendum in Irealnd, and if passed long after the Lisdon Treaty comes into force.

The agreement in Brussels does not alter the treaty in any way.  This is made explicit in the conclusions, which state that its purpose is to “clarify” but “not change either the content or the application of the treaty of Lisbon.”  The claim that declarations on Ireland made by the European Council are legally binding are false.  They cannot be because they do not have the same status as a treaty.  Under the rules of the EU a treaty can only be changed by a new treaty agreed upon between all governments and then ratified by each member state.  A treaty cannot be changed by an agremnet between heads of Governments.   The Court of Justice will always say that the provisions of a fully ratified European Treaty take precedence any attempt to modify the operation of the Treaty through an unratified agreement.  Also, if the Lisbon Treaty does come into force it will be the Court of Justice that will have the authority to interpret its provisions and decide how they should be applied.  The Court of Justice is not bound by the European Council agreement.  It is also possible that a future Council meeting could make some other decision or agreement, possibly even in contradiction to this agreement. 

Promise of a special Irish Protocol or “clarificatory declaration” to be attached to some future EU Treaty, possibly years away, is just that - a promise.   A protocol could not free Ireland from the obligations entailed by the provisions of the Lisbon Treaty once Lisbon had come into force.   In any case the Irish government is not seeking any opt outs from the provisions of the Lisbon Treaty.  The whole process is political fix designed to give the impression that some change has taken place, when really nothing has happened. 


This becomes even more apparent when we examine the threadbare nature of the Brussels guarantees.   On neutrality, the agreement says: “The Lisbon Treaty does not affect or prejudice Ireland’s traditional policy of military neutrality.”   This implies that Irish troops can only be sent abroad with consent of the Irish Government in the Council of Ministers and the Oireachtas.  But the Lisbon Treaty will lock all member states into common foreign and defence policies.   It also clearly aligns those polices with those of the North Atlantic Treaty Organisation (NATO).  The creation of more formal structures for co-operation between EU sates and between the EU and NATO in the area of defence creates the real prospect of Ireland being drawn into military conflicts.  A common defence policy is incompatible with any concept of neutrality. 

The guarantees on workers’ rights and public services are even weaker.  They aren’t even part of the formal agreement, but come in the form of an accompanying non-binding declaration.  There is no indication of a change in EU policy towards the privatisation of public services or the position of labour.   The judgements of the Court of Justice, which threaten the foundation of trade unionism, remain in place.  And the principle that the rights of workers be subordinated to the demands of capital still prevails. 


The conclusion of the Brussels agreement and the announcement of the referendum date provide us with some indications of the campaign that the pro-Lisbon forces intend to run.  The thrust of this is not to engage with any specific argument on the Treaty, claiming that all concerns have been addressed by the guarantees, but to effectively make it a referendum on Ireland’s membership of the EU.  This is clearly designed to prey on people’s anxieties over the economic collapse and tap in to the common belief that the EU can somehow shield Ireland from the worst of the economic crisis and aid its recovery.  Brian Cowen has even made the claim that endorsing the Lisbon Treaty would ensure “we can come out of recession far more quickly.” 

Another feature in the yes side this time is the mobilisation of what is often described as “civil society” – worthy figures drawn from business, trade unions and entertainment – to give its endorsement to the treaty.  This formation is very similar to the elements that make up social partnership.  It is represented by the Ireland for Europe group, which has won the support of such luminaries as poet Seamus Heaney, U2 guitarist the Edge Concern chief executive Tom Arnold; and trade union officials David Begg and Billy Attley.  These latter two are stalwarts of social partnership - always willing to show their worth to the Government and employers. 
No the no side this time has been reduced by the collapse of the right wing opposition to Lisbon.  After their poor showing in the Euro elections Declan Ganley’s Libertas has said that it will play no part in the referendum.  While this weakens the no side in numerical terms it gives the left the opportunity to lead and define the no campaign.  However, if it is to have any impact it will have to not only make the specific arguments on the Treaty, but also challenge the widespread belief that the EU offers some sort of safety net.  We have to show that the EU is as much responsibility for the current economic crisis as the US.  For example we should make the links between Ireland’s membership of the euro, low interest rate levels and the accompanying credit fuelled property boom and subsequent crash. Unfortunately these left campaigns have tended to pander to the lowest common denominator rather that make the more difficult arguments. 


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