LISBON EXPLAINED: Part IX:The Government negotiated guarantees on abortion, neutrality and taxation in June, writes PATRICK SMYTH
ALTHOUGH THE bulk of EU law is enshrined in the treaties that established the union and have been amended repeatedly since, it is also possible for international legal obligations to be generated in other ways.
The Vienna Convention on the Law of Treaties (1969) provides that when heads of state and government get together, they can produce legally binding agreements with as much force in the international courts as traditional treaties.
That’s what the heads of government in the EU did on June 19th, 2009, at the European Council meeting that produced a document with the unwieldy title: Decision of the Heads of State or Government of the 27 Member States of the EU, meeting within the European Council, on the concerns of the Irish people on the Treaty of Lisbon.
The leaders agreed explicitly that the document would be “legally binding and will take effect on the date of entry into force of the Treaty of Lisbon”.
The rare decision, similar to one made in 1992 to allow Denmark to hold a second vote on the Maastricht Treaty, gives legal force to the three “guarantees” successfully negotiated by the Government on abortion, neutrality and taxation.
Aware that No campaigners might cast doubt on this unusual legal measure, the Government sought to doubly reassure voters by having the guarantees enshrined in the EU treaties.
However, with the Lisbon Treaty through more than 20 national ratification processes, it was feared the declarations might require an enormously cumbersome reratification process and the Government settled on a pledge from its partners to include the declarations in the next treaty, probably the accession treaty for Croatia or Iceland.
The fourth element of the guarantees, however, does not have the same legal standing.
The “solemn declaration” on social policy and workers’ rights is simply a political restatement of EU policies as set out in Lisbon and existing treaties, without direct legal effect.
The choice of this non-binding clarificatory approach almost certainly reflects the difficulty member states have in defining the precise scope of the rights enshrined in Lisbon, with the British in particular reluctant to accept that it in any way extends rights.
The decision to retain a commissioner for each member state is a political commitment that can only be implemented when the Lisbon Treaty comes into force as the Nice Treaty provides for the reduction in the size of the commission.