The Politics & Law Behind PESCO

Permanent Structured Cooperation (PESCO) is the way in which EU Member States will work closer together on security and defence issues. It will build on the EU Global Strategy for Foreign and Security Policy (EUGS) and has been summarised by the EU as aiming to ‘jointly develop defence capabilities and make them available for EU military operations’, in order to ‘enhance the EU’s capacity as an international security partner’, contribute to the protection of Europeans and ‘maximise the effectiveness of defence spending’. PESCO is being built on binding commitments, based on voluntary participation.

The matter seemingly came out of nowhere last December as the government secured Irish participation in it by a Dáil vote. However, it is part of an ongoing trend which has accelerated in the past two years, but which derives its power from the Lisbon Treaty. At a European level, the Council established PESCO on the 11th December 2017. It’s decision formally listed all 25 participating Member States, its governing structure, supervision, assessment and reporting arrangements, financing, and provisions to allow for outside participation.

The Commission and Council have been the driving forces behind the move. Jean-Claude Juncker, President of the European Commission, gave his State of the Union Address in September 2016 which included a warning about Europe’s defence. Following on from Juncker’s speech, the Commission announced the European Defence Action Plan in November 2016. It set out three main aims; the creation of a European Defence Fund, fostering investments in defence industry suppliers through mechanisms like the European Investment Bank, and the strengthening of the Single Market for defence through new directives.

The European Defence Fund

June 2017 saw the Commission launch the European Defence Fund. Announced during Junker’s State of the Union Address in September 2016, he warned that Europe ‘can no longer afford to piggy-back on the military might of others’, and called for the Fund to ‘turbo boost research and innovation.’

The Fund has two strands, for research and acquisition. €90 million was set aside for research until 2019, with the first €25 million used in 2017. The big change will begin in 2020, with €500 million per year begin allocated for research annually to facilitate the EU becoming one of the biggest defence researchers in Europe. The Commission is set to propose a ‘dedicated EU defence research programme’ this year which will shed further light on how this will work.

Development and acquisition projects between co-operating Member States are open for co-financing from the EU budget and ‘practical support’ from the Commission. Examples cited by the Commission included developing drone technology, satellite communication, or bulk buying equipment to reduce costs. €500 million will be spent on these projects in 2019 and 2020. Increased funds are being made available in 2020, with an estimated €1 billion budget each year to expand the programme. The Commission wants to leverage national financing by multiplying effect of five, to generate a total of €5 billion per year.

Intention and Notification

Member States drew up a list of common commitments in September 2017, and signed the common notification in November to begin formally setting up PESCO. 23 Member States signed it, with Ireland and Portugal being the two which agreed to join the following month. The Notification mentions all the key Treaty provisions, as well as developments in other branches of the Union. It cited the European Council’s re-affirmation of its commitment to strengthen European co-operation on defence in December 2016, and its June 2017 call on Member States to ‘fill the existing major shortfalls and develop the technologies of the future.’

At the signing ceremony of notification by interested Member States last November, High Representative Federica Mogherin remarked that they were ‘signing something that, just one year ago, most of us and most of the rest of the world considered impossible to achieve’, for what was a ‘historic moment in European defence.’ As High Representative of the Union for Foreign Affairs and Security Policy, Mogherin co-ordinates the EU’s Common Foreign and Security Policy.

Annexed to the Notification were the principles of PESCO. The principles continuously reference the binding nature of the project. It also speculates as to the future; ‘A long term vision of PESCO could be to arrive at a coherent full spectrum force package – in complementarity with NATO, which will continue to be the cornerstone of collective defence for its members.’ The penultimate principle issued somewhat of a warning. While PESCO is to be ‘inclusive’ and ‘modular’, it ‘must not lead to cooperation being levelled down’, as the aim of an ‘ambitious’ PESCO requires all participants to ‘comply with a common list of objectives and commitments.’

 

The Lisbon Treaty

The Union’s Common Security and Defence Policy is enshrined in Article 42 of the Lisbon Treaty, which includes the ‘progressive framing of a common Union defence policy’, with a recognition of certain Member States who owe obligations under the North Atlantic Treaty Organisation (NATO).

Article 42 (3) states that ‘Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.’

Member States ‘shall undertake progressively to improve their military capabilities.’ There is an obligation of ‘aid and assistance’ by all the means in their power, in accordance with Article 51 of the United Nations Charter’ on Member States if another is attacked on its own territory.

The key to PESCO is Article 42 (6). ‘Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 46. It shall not affect the provisions of Article 43.’

Article 45 covers the role of the European Defence Agency (EDA). Article 46 sets out the procedure under which permanent structured co-operation is established within the EU, as mentioned in Article 42 (6). Protocol 10 of the Lisbon Treaty contains three Articles annexed onto it which further expands upon Articles 42 and 46. Article 1 sets out objectives, Article 2 covers ways in which they will be achieved, then Article 3 gives the EDA a role in assisting in the regular assessment of Member States’ contribution to these objectives.

 

PESCO Projects

PESCO is beginning with seventeen projects. Over the coming months, all 25 members will have to agree on governance rules for individual projects, and exactly how third States would be able to participate in projects. Ireland is interested in seven of these initial projects. Three projects, Military Mobility, EU Training Mission Competence Centre (EU TMCC), and Deployable Military Disaster Relief Capability Package, relate to military logistics. Another three, Maritime (Semi-) Autonomous Systems for Mine Countermeasures, Harbour & Maritime Surveillance and Protection, Harbour & Maritime Surveillance and Protection, and Upgrade of Maritime Surveillance, are all naval-based. The other project is for a Cyber Threats and Incident Response Information Sharing Platform, which aims to increase the sharing of intelligence through a networked Member State platform, while developing new active measures to combat cyber threats.

 

PESCO and Ireland

Irish neutrality is a long-standing government policy, and PESCO is the latest, and potentially gravest, issue which could undermine it. Sinn Féin previously proposed Bills to call for a referendum to insert a neutrality clause into the Constitution in 2015 and 2016. The Thirty-Fifth Amendment of the Constitution (Neutrality) Bill 2016 was rejected by a government motion. At that time, Charlie Flanagan, then Minister for Foreign Affairs, commented that any such move could undermine the effectiveness of the executive to conduct foreign affairs, while Enda Kenny, then Taoiseach, said that Irish neutrality had been protected with the Lisbon Treaty.

Article 29 of the Irish Constitution covers international relations. The Twenty-Eight amendment to the Constitution amended Article 29 to allow for the ratification of the Lisbon Treaty. The current version of Article 29 (9) reads ‘the State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State.’ In theory, this could block Ireland from joining PESCO. Richard Boyd Barrett confirmed earlier this month that People Before Profit would not bring a constitutional challenge after obtaining advice, with the lack of clear definitions over key phrases likely to defeat a claim.

A Dáil motion to approve Ireland joining PESCO was passed on the 7th December 2017 by 78 votes to 42. Simon Coveney, Tanaiste and Minister for Foreign Affairs, explained that ‘at all stages it was clear to partners that Irish participation was subject to a Government decision and Dáil approval and this is why Ireland did not sign the notification at the Foreign Affairs Council last month, when many other countries did.’ Lisa Chambers, Fianna Fail spokesperson for Defence, spoke in favour of the motion and described the defence budget as ‘paltry.’ Sinn Féin’s Aengus Ó Snodaigh said that PESCO would undermine Irish sovereignty and independence by having other Member States and said Ireland would become ‘dependent on an EU military programme that will not be under our control.’ Eamon Ryan, leader of the Green Party, noted TDs were not criticising Denmark for remaining independent and outside of PESCO, and said the EU ‘would be stronger by having a certain level of diversity in terms of its approach to security and defence issues, in particular.’

The issue of Irish involvement also spilled over into military expenditure on the 12th December. Clare Daly asked the Taoiseach and Minister for Defence whether there will need to be an increased defence budget when Ireland joins PESCO. Paul Kehoe, Minister of State at the Department of Defence, said that joining PESCO would not bring any additional costs to the Exchequer, but that ‘additional costs may arise in respect of participation in specific PESCO projects similar to the case where the Defence Forces participate in European Defence Agency projects.’ These costs would be ‘incurred in the normal course and will therefore be met from within the Defence Vote.’ He noted that Ireland’s defence spending would increase over the next three years, as per the latest budget.

A back-and-forth between the pair saw Daly claim ‘there has hardly been a single article in the press or any coverage in the media at all. If one were to randomly stop people on the street, even people who are usually very well informed have an incredibly low level of knowledge about PESCO, what it means and our involvement in it. It is not an exaggeration to say that the reason it was rushed through in such an unorthodox way was to avoid that type of public scrutiny because the Minister of State knows well that Irish people do not want to be part of a European army.’ Kehoe previously mentioned he had heard ‘outrageous comments’ about Ireland joining an EU army, but said these comments were incorrect.


Cian Carton – Editor

 

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