So what IS the truth about the "legal" guarantees?

waitinforatrain

Yes and No sides are saying that the legal guarantees are/are not legally binding, yet I haven't been able to find a reliable source for either claim.

It's sick that at this stage we're all still trying to determine what the FACTS of the treaty are, when we should be debating its consequences.

2009, the Age of Wikipedia - and people still spout rubbish with no sources and expect to be believed. It only tells me that some people benefit so much from the outcome of this treaty, on both Yes and No sides, that they are willing to blatantly lie to achieve their goals.

So what are the real facts behind the legal guarantees?

meglome

I'm sure someone will give you a very detailed reply but I would just mention this. The guarantees have been set-up exactly like The Good Friday agreement was. But for some 'strange' reason Sinn Fein were 100% willing to accept the GFA was legally binding but that our Lisbon guarantees are not. Has the GFA ever been challenged?

This whole thing is a major red herring from the No campaign.

free-man

In my view the guarantees are mere political promise until they are adopted as protocols in the next accession treaty.

IMHO from the time the treaty is passed until they are adopted as protocols no one can say in what manner they will be interpreted.

meglome

free-man wrote: »

In my view the guarantees are mere political promise until they are adopted as protocols in the next accession treaty.

IMHO from the time the treaty is passed until they are adopted as protocols no one can say in what manner they will be interpreted.

http://www.independent.ie/opinion/letters/no-claims-have-no-basis-in-law-1898157.html

'No' claims have no basis in law
Monday September 28 2009

THROUGHOUT the referendum campaign certain groups advocating a 'No' vote have been making statements regarding the Lisbon Treaty that have no basis in law or in fact.

Certain 'No' groups claim that the guarantees secured by the Government in June are worthless. This is wrong.

The outcome of the deliberations in June could not be any clearer regarding the guarantees on taxation, abortion and neutrality. These decisions give legal guarantees to the Irish people, are fully compatible with the Treaty of Lisbon and are legally binding.

To suggest otherwise is to mislead the Irish people.

...
Declan J Walsh
Lecturer in Eu Law
University College Cork

So now that an expert has clarified that for you are you going to change your view?

moondogspot

The truth is that when you go voting on October 2nd you will be voting on the exact same

rejected Treaty with absolutely no guarantees attached.


As free-man said already they are just a mere political promise until they are adopted as

protocols in the next accession treaty.

Scofflaw

The guarantees are a Decision by a European Summit. In exactly the same way as the formal decisions of any other international Summit, they are legally binding international agreements. There are two aspects to that - first, the guarantees themselves are legally binding, and second, the agreement to turn them into Protocols is also legally binding.

This is the first bit:

The Heads of State or Government of the 27 Member States of the European Union, whose Governments are signatories of the Treaty of Lisbon,
Taking note of the outcome of the Irish referendum of 12 June 2008 on the Treaty of Lisbon and of the concerns of the Irish people identified by the Taoiseach,
Desiring to address those concerns in conformity with that Treaty,
Having regard to the Conclusions of the European Council of 11-12 December 2008,
Have agreed on the following Decision:

That's your international agreement (the bit with 27 nations agreeing something), and what follows is the text of the guarantees.

The agreement to turn them into Protocols is also binding, and the fact that the Decision is legally binding is reiterated:

5. Regarding the Decision in Annex 1, the Heads of State or Government have declared that:
(i) this Decision gives legal guarantee that certain matters of concern to the Irish people will be unaffected by the entry into force of the Treaty of Lisbon;
(ii) its content is fully compatible with the Treaty of Lisbon and will not necessitate any reratification of that Treaty;
(iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon;
(iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements, to the Treaty on European Union and the Treaty on the Functioning of the European Union;

You can find the Council/Summit conclusions here.

That's the situation - everything there is legally binding. The member states are legally bound, immediately on ratification of Lisbon, both by the substance of the guarantees, and by the agreement to turn them into Protocols at the next accession treaty.

Between the ratification of Lisbon and their bodily assumption into the EU treaties as Protocols, the guarantees have less legal force in an ECJ judgement than do the contents of the Treaties. We are free to speculate to our hearts' content about what might happen in between, and we are equally free to dissect the contents of the guarantees, and to question whether they address the right issues - but their legal status is not in doubt.

They are not, just to clarify the matter, 'political promises', any more than a lease is a 'promise' of being able to rent an office. Nor are they the sole responsibility of the Irish government.

Persistent claims by those who ought to know better that the guarantees are other than what they are will eventually lead to a ban.

cordially,
Scofflaw

Red Sleeping Beauty

The legally binding guarantees are an agreement from the European Council that nothing in the Lisbon Treaty affects :

Right to Life, family and education
Taxation
Security and defence

This decision will be form a new "international treaty" and will be included as a protocol at a later date in an accession treaty (Croatia's probably). The difference between this international treaty and a protocol is that the former does not have an enforcement mechanism but when these decisions are added as a protocol to an EU treaty they will become part of EU law and enforceable by the European Court of Justice.


There's also a solemn declaration on worker's rights from the European Council. This is a political statement and is not legally binding.

http://www.lisbontreaty2009.ie/lisbon_treaty_specific_issues.html

free-man

Strange.. my follow up post was deleted by a mod with no explanation?

rebelmind

The so-called Legal Guarantees are as useful in this debate as a Fianna Fail election promise, & ain't that the truth.

meglome

free-man wrote: »

Strange.. my follow up post was deleted by a mod with no explanation?

rebelmind wrote: »

The so-called Legal Guarantees are as useful in this debate as a Fianna Fail election promise, & ain't that the truth.

If you guys don't want to accept reality well bully for you. But if you want to keep repeating lies to the rest of us then I'd guess that will lead to deletions and bannings. Just a guess, I'm not a mod.

free-man

meglome wrote: »

If you guys don't want to accept reality well bully for you. But if you want to keep repeating lies to the rest of us then I'd guess that will lead to deletions and bannings. Just a guess.

Hm you might point out to me where I lied?

meglome

free-man wrote: »

Hm you might point out to me where I lied?

free-man wrote: »

In my view the guarantees are mere political promise until they are adopted as protocols in the next accession treaty.

IMHO from the time the treaty is passed until they are adopted as protocols no one can say in what manner they will be interpreted.

EU Law Expert.

'No' claims have no basis in law
Monday September 28 2009

THROUGHOUT the referendum campaign certain groups advocating a 'No' vote have been making statements regarding the Lisbon Treaty that have no basis in law or in fact.

Certain 'No' groups claim that the guarantees secured by the Government in June are worthless. This is wrong.

The outcome of the deliberations in June could not be any clearer regarding the guarantees on taxation, abortion and neutrality. These decisions give legal guarantees to the Irish people, are fully compatible with the Treaty of Lisbon and are legally binding.

To suggest otherwise is to mislead the Irish people.

...
Declan J Walsh
Lecturer in Eu Law
University College Cork

http://www.independent.ie/opinion/letters/no-claims-have-no-basis-in-law-1898157.html

Should I have said mislead instead?

free-man

meglome wrote: »

Should I have said mislead instead?

No, what you said was "lied".

Others I imagine would receive an warning for less.

rebelmind

meglome wrote: »

If you guys don't want to accept reality well bully for you. But if you want to keep repeating lies to the rest of us then I'd guess that will lead to deletions and bannings. Just a guess, I'm not a mod.

Well, shiver me timbers there matey.
A typical Yes response to people who happen to disagree with you.
Tell me, are the Irish electorate facing a 'deletion' from the EU when we vote down this Constitution for the EU federal state?
Maybe there should be an infraction for anyone here who has the arrogance to tell all & sundry that he knows 'reality'.

Sam Vimes

rebelmind wrote: »

Well, shiver me timbers there matey.
A typical Yes response to people who happen to disagree with you.

No you don't disagree with him, you disagree with an expert in EU law, every member of every government in the EU, the UN and the guarantees themselves which state:

(iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon;

This is not a matter of opinion, it's a matter of fact and one that you are wrong on

If you vote no because you think the guarantees aren't binding you are leaving the door wide open for a third referendum because you're voting on one of many misconceptions

jonnyfingers

I've been reading up on the guarantees and I'm looking for clarification on a few things.

The first guarantee is that we get to keep a commissioner. Under the Nice Treaty the number of commissioners has to be reduced by a certain date, of which I'm not sure. It could be reduced only to 26 from 27, I understand. Lisbon also wants to reduce this number to one commissioner for two thirds of member states from 2014 but one of the "legally binding agreements" made since we said No the first time is that on ratification of Lisbon each member state will retain their commissioner. However, the Treaty also seems to suggest that the European Council could unanimously decide to alter this number at any time. Could we end up in a situation where every national parliment, including our own, votes to reduce the number of commissioners and if so how would it be decided who gets to keep their commissioner?

As for the issue of Ireland's neutrality, Ireland has opted out from the change from unanimous decisions to qualified majority voting in the sector of police and judicial affairs. This guarantees our neutrality. However, it seems our government has promised to review this decision three years after the treaty enters into force (if the Treaty is approved). We can also opt in to these voting issues on a case-by-case basis, decided by the Dail and the Oireachtas. So, yes, we can stay neutral but will we be pressurised to opt in in three years? And could the government make a decision against the people's wishes without the need for a referendum?

Just for a bit of background I was a No voter last time around but that was I didn't know what I was voting for. If in doubt keeping things the same seemed to be the best option. This time I've done some more research. I don't have a huge problem with most of the Lisbon treaty. I do question the effectiveness of the above guarantees and I'm not overly thrilled by the move to QMV considering we have such small influence and the range of competences that will be now decided by OMV.

But as it stands I'm on the fence and could be swayed either way. Any clarification those more knowledgeable than myself can give would be appreciated.

LookingFor

TBH, if we vote yes and if the EU was to turn around somehow and renege on these agreements, whch I don't think is possible, then we can always up sticks and leave. Lisbon gives a mechanism for withdrawal, something we haven't had before. So we wouldn't be permanently enslaved to the big bad man in brussels, signing ourselves away, as some like to suggest. We could always withdraw and go back to being a little backwater on the edge of europe...albeit a wholly independent and 'powerful!' and 'sovereign!' little backwater.

Sam Vimes

jonnyfingers wrote: »

I've been reading up on the guarantees and I'm looking for clarification on a few things.

The first guarantee is that we get to keep a commissioner. Under the Nice Treaty the number of commissioners has to be reduced by a certain date, of which I'm not sure. It could be reduced only to 26 from 27, I understand. Lisbon also wants to reduce this number to one commissioner for two thirds of member states from 2014 but one of the "legally binding agreements" made since we said No the first time is that on ratification of Lisbon each member state will retain their commissioner. However, the Treaty also seems to suggest that the European Council could unanimously decide to alter this number at any time. Could we end up in a situation where every national parliment, including our own, votes to reduce the number of commissioners and if so how would it be decided who gets to keep their commissioner?

The legally binding agreement is that the EU will not force the size of the commission to be reduced. If our government votes for it then yes it can happen but then that's true of a great many things. The agreement not to reduce the size of the commission only applies if we vote yes so it's as guaranteed as you're ever going to get.

jonnyfingers wrote: »

As for the issue of Ireland's neutrality, Ireland has opted out from the change from unanimous decisions to qualified majority voting in the sector of police and judicial affairs. This guarantees our neutrality. However, it seems our government has promised to review this decision three years after the treaty enters into force (if the Treaty is approved). We can also opt in to these voting issues on a case-by-case basis, decided by the Dail and the Oireachtas. So, yes, we can stay neutral but will we be pressurised to opt in in three years? And could the government make a decision against the people's wishes without the need for a referendum?

[The treaty] does not prejudice the security and defence policy of each Member State, including Ireland, or the obligations of any Member State.

The Treaty of Lisbon does not affect or prejudice Ireland's traditional policy of military neutrality. It will be for Member States - including Ireland, acting in a spirit of solidarity and without prejudice to its traditional policy of military neutrality - to determine the nature of aid or assistance to be provided to a Member State which is the object of a terrorist attack or the victim of armed aggression on its territory.

The issue of Ireland's neutrality is not effected by Lisbon in any way. Whether the government can give it up without a referendum or not is irrelevant because this is not changed by Lisbon. It should not effect your vote.

jonnyfingers wrote: »

I'm not overly thrilled by the move to QMV considering we have such small influence and the range of competences that will be now decided by OMV.

I think I deal with the issue of QMV quite well here, if I say so myself (the lower half of the post)

http://boards.ie/vbulletin/showthread.php?p=62307115

marco_polo

jonnyfingers wrote: »

I've been reading up on the guarantees and I'm looking for clarification on a few things.

The first guarantee is that we get to keep a commissioner. Under the Nice Treaty the number of commissioners has to be reduced by a certain date, of which I'm not sure. It could be reduced only to 26 from 27, I understand. Lisbon also wants to reduce this number to one commissioner for two thirds of member states from 2014 but one of the "legally binding agreements" made since we said No the first time is that on ratification of Lisbon each member state will retain their commissioner. However, the Treaty also seems to suggest that the European Council could unanimously decide to alter this number at any time. Could we end up in a situation where every national parliment, including our own, votes to reduce the number of commissioners and if so how would it be decided who gets to keep their commissioner?

This decision by the European Council to keep a full compliment of commissioners from 2014 onwards has already been taken and is included in the guarantee package. It will be formally enforced upon ratification of the treaty

As for the issue of Ireland's neutrality, Ireland has opted out from the change from unanimous decisions to qualified majority voting in the sector of police and judicial affairs. This guarantees our neutrality. However, it seems our government has promised to review this decision three years after the treaty enters into force (if the Treaty is approved). We can also opt in to these voting issues on a case-by-case basis, decided by the Dail and the Oireachtas. So, yes, we can stay neutral but will we be pressurised to opt in in three years? And could the government make a decision against the people's wishes without the need for a referendum?

The Common Security and defence policy has to do with defence and neutrality implications and requires unaminity at all times. The Freedom and justice title covers areas such as cross border crime and police co operation, the Schengen Aquis, common immigration, asylum and border control policies, and have no impact on neutrality whether we are in or out. Each of these areas we may opt into on a case by case basis. It is worth noting that opting into some of these areas, in articular the Schengen related ones, would require us to dissolve the common travel area with Britain so are unlikely to happen in the foreseeable future.

.

Just for a bit of background I was a No voter last time around but that was I didn't know what I was voting for. If in doubt keeping things the same seemed to be the best option. This time I've done some more research. I don't have a huge problem with most of the Lisbon treaty. I do question the effectiveness of the above guarantees and I'm not overly thrilled by the move to QMV considering we have such small influence and the range of competences that will be now decided by OMV.

But as it stands I'm on the fence and could be swayed either way. Any clarification those more knowledgeable than myself can give would be appreciated.

There are aproximately 63 articles already covered by QMV under the previous treaties. A further 50 areas (covering something like 33 articles altogether, as some article contain multiple QMV proceedures) are included by Lisbon for an approximate total of 96 articles or there abouts.

I have compilled a list with a brief description and links to the articles of the areas moving to QMV. You can judge for yourself if they are acceptable changes to you or not.

http://www.boards.ie/vbulletin/showthread.php?p=62202241

moogester

LookingFor wrote: »

TBH, if we vote yes and if the EU was to turn around somehow and renege on these agreements, whch I don't think is possible, then we can always up sticks and leave. Lisbon gives a mechanism for withdrawal, something we haven't had before. So we wouldn't be permanently enslaved to the big bad man in brussels, signing ourselves away, as some like to suggest. We could always withdraw and go back to being a little backwater on the edge of europe...albeit a wholly independent and 'powerful!' and 'sovereign!' little backwater.

Correct me if i'm wrong but i was under the impression that once this treaty is ratified, there is no going back without pulling out of Europe altogether which would be a bad idea on lots of levels.

If the EU reneges on the agreements, what then? I guess Ireland will just have to live with it or pull out of Europe completely.

Back to the 2nd Danish referendum - were the modifications they wanted written in or were they just promises?

I would suggest that anyone who is not sure votes NO. You wont be any worse off than you are now & can always sign up at a later date to a modified treaty or whatever they come up with next.

I would just be afraid of signing up to something that there is no way out of without doing the country immense damage.

Now i may have got the complete wrong end of the stick here so could someone please clarify for me.

smokingman

moogester wrote: »

Now i may have got the complete wrong end of the stick here so could someone please clarify for me.

I'm afraid you are wrong, please read the posts above you.
All the facts are there in black and white.

marco_polo

moogester wrote: »

Correct me if i'm wrong but i was under the impression that once this treaty is ratified, there is no going back without pulling out of Europe altogether which would be a bad idea on lots of levels.

If the EU reneges on the agreements, what then? I guess Ireland will just have to live with it or pull out of Europe completely.

Back to the 2nd Danish referendum - were the modifications they wanted written in or were they just promises?

I would suggest that anyone who is not sure votes NO. You wont be any worse off than you are now & can always sign up at a later date to a modified treaty or whatever they come up with next.

I would just be afraid of signing up to something that there is no way out of without doing the country immense damage.

Now i may have got the complete wrong end of the stick here so could someone please clarify for me.

The Edinburgh agreement was of the exact same format as the Irish guarantees. A seperate international agreement that did not alter the text of the Maastrict Treaty.

If the EU renaged on the agreements somehow (not really possible bar reversing the commissioner decision), then the percentage of Irish no voters would increase to be somewhere in the region of 100%, and we would have to ask ourselves if it is the sort of organisation we would want to belong to. Furthermore how could any of the other member states ever trust each others word again?

Sam Vimes

moogester wrote: »

If the EU reneges on the agreements, what then? I guess Ireland will just have to live with it or pull out of Europe completely.

While things can be done other than pulling out of Europe, why would you want to be part of any "union" that reneges on its agreements? What's the point of having treaties and protocols etc if they can be ignored at will?

Scofflaw

moogester wrote: »

Correct me if i'm wrong but i was under the impression that once this treaty is ratified, there is no going back without pulling out of Europe altogether which would be a bad idea on lots of levels.

In fact, I don't think anyone knows what would happen if one member state unilaterally deratified an amending treaty.

moogester wrote: »

If the EU reneges on the agreements, what then? I guess Ireland will just have to live with it or pull out of Europe completely.

Back to the 2nd Danish referendum - were the modifications they wanted written in or were they just promises?

They were neither - they were international agreements, just as these will be, but in their case the Agreements weren't written into the Treaties at all, which the Irish ones will be. So the Danish agreements have only ever had the legal force that the Irish guarantees will start off with.

moogester wrote: »

I would suggest that anyone who is not sure votes NO. You wont be any worse off than you are now & can always sign up at a later date to a modified treaty or whatever they come up with next.

If you don't know, then I'm afraid you don't even know whether that's true. As it happens, it isn't.

moogester wrote: »

I would just be afraid of signing up to something that there is no way out of without doing the country immense damage.

Now i may have got the complete wrong end of the stick here so could someone please clarify for me.

If you're afraid of signing up to something "that there is no way out of without doing the country immense damage", then you're going to have to vote No whatever is in the Treaty - and you would have to vote No to any and every EU treaty, no matter what it's contents. My advice to you would be not to be afraid of making real commitment.

cordially,
Scofflaw

moogester

Sam Vimes wrote: »

While things can be done other than pulling out of Europe, why would you want to be part of any "union" that reneges on its agreements? What's the point of having treaties and protocols etc if they can be ignored at will?

Thats my point......i wouldnt. But what choice would we have once this is ratified?

Sam Vimes

moogester wrote: »

Thats my point......i wouldnt. But what choice would we have once this is ratified?

If you think the EU is going to renege on its agreements why does it matter what is ratified or not? Once any agreement is broken the treaties are all irrelevant.

jonnyfingers

Thanks for your responses to my questions guys. Makes things that little bit clearer now. Seriously considering a yes vote now.

meglome

jonnyfingers wrote: »

Thanks for your responses to my questions guys. Makes things that little bit clearer now. Seriously considering a yes vote now.

I was a potential No voter until I got some great information from people in here. Now it's Yes all the way. Nothing like getting a concise and truthful response to what you ask, well from the Yes supporters anyway.

free-man

marco_polo wrote: »

The Edinburgh agreement was of the exact same format as the Irish guarantees. A seperate international agreement that did not alter the text of the Maastrict Treaty.

If the EU renaged on the agreements somehow (not really possible bar reversing the commissioner decision), then the percentage of Irish no voters would increase to be somewhere in the region of 100%, and we would have to ask ourselves if it is the sort of organisation we would want to belong to. Furthermore how could any of the other member states ever trust each others word again?

The problem for many people is that the agreements are declarations and not protocols until the next accession treaty.

Google the difference between "declaration" and "protocol" to see for yourself.

jonnyfingers

meglome wrote: »

I was a potential No voter until I got some great information from people in here. Now it's Yes all the way. Nothing like getting a concise and truthful response to what you ask, well from the Yes supporters anyway.

If only the so called "Yes" campaign could do the same instead of all this "Yes to Jobs" bull****.

marco_polo

free-man wrote: »

The problem for many people is that the agreements are declarations and not protocols until the next accession treaty.

Google the difference between "declaration" and "protocol" to see for yourself.

The problem for people who make this point is that it doesn't matter as they are legally binding under international law.

Has it been a problem for the Danes thus far, and they still do not have a protocol.