Response to Green Paper on Defence, July 2013
Dr. Aoife O'Donoghue
Senior Lecturer in Law
Durham University
https://www.dur.ac.uk/law/staff/stafflist/?id=5868
aoife.o'[email protected]/0044(0)1913342810
Biography
Dr. Aoife O'Donoghue is Co-Convenor and founder of Law and Global Justice at Durham Law
School, a research cluster focused on questions of public international law. Dr. O'Donoghue
also publishes extensively on questions of neutrality, international humanitarian law, the
use of force and broader governance questions within the global legal order, as well as on
issues related to Ireland's foreign policy. Dr. O'Donoghue is a regular contributor to the
academic blog, humanrights.ie. Dr. O'Donoghue previously held a post as Lecturer at NUI,
Galway, Department of Law.
Relevant publications:
A O'Donoghue ‘Good offices: Grasping the Place of Law in Conflict’ (2014) Legal
Studies, DOI: 10.1111/lest.12029
A O'Donoghue ‘Splendid Isolation: International Humanitarian Law, Legal Theory and
the International Legal Order’ 14 (2012) Yearbook of International Humanitarian
Law 107
A O'Donoghue ‘Neutrality and Multilateralism after the First World War’ (2010) 15
Journal of Conflict and Security Law 169
A O'Donoghue ‘The Inimitable Form of Irish Neutrality: From the Birth of the State to
World War II’ (2008) 30 Dublin University Law Journal 259
A O'Donoghue ‘Humanitarian Intervention Revisited’ (2005) 1 Hanse Law Review 165
Dr. A. O'Donoghue
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Response
This Green Paper response focuses on two policy questions sets out in section 2.8.;
•
Do the advantages to the State in retaining the triple lock, in particular in ensuring the
international legitimacy of peace keeping missions, outweigh any possible
disadvantages?
•
How can Ireland’s traditional policy of military neutrality be dovetailed with increasing
requirements for Defence participation in collective security cooperation?
Do the advantages to the State in retaining the triple lock, in particular in ensuring the
international legitimacy of peace keeping missions, outweigh any possible disadvantages?
The Green Paper describes the triple lock system as:
1. the authorisation of the operation by the Security Council or General Assembly of
the United Nations;
2. a formal Government decision; and
3. the approval of Dáil Éireann
This system is a mixture of law and policy and, as such, remains open to reform. It is unclear
whether the triple lock requires a chronological order of decision-making or whether it
would be possible to reverse or mix the steps involved. For example, in the recent debates
on intervention in Syria, the UK parliamentary debate and vote occurred before a Security
Council resolution was passed.1 Arguably, to ensure readiness to take a role in proposed
activities, the possibility of both Governmental and Dáil authorisation prior to UN action, on
the proviso that a Chapter VII Security Council resolution authorising force will be secured
before action is taken, should be maintained. Such an interpretation of the triple-lock allows
both legislative and executive support for action to be clearly stated even in situations
where one or more of the Permanent Five Security Council members veto action or other
1
The constitutional necessity of which remains debatable as the executive prerogative to exercise military
force may have been altered by parliamentary votes on both the 2003 invasion of Iraq and the 2011 actions
against Libya, with the latter supported by Security Council Resolution under Chapter VII of the UN Charter and
the former outside UN authorisation, similar debates are occurring within the USA.
Dr. A. O'Donoghue
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exigencies result in no action being taken. This will be particularly relevant if Ireland wishes
to take a more active political role in decisions regarding the use of force especially at the
regional level or within a collective security model.
The first listed step, authorisation of the operation by the Security Council or General
Assembly, is firmly rooted in international law and specifically the UN Charter. Besides
membership of the UN, the Charter now forms part of customary international law and
Ireland is bound by this under article 29 of the Irish Constitution. Several articles of the UN
Charter are relevant. Article 2.4, the base article of the Charter in relation to the use of force
and self-defence, requires states to refrain from the threat and use of force regarding
states' political and territorial integrity. Article 103 states that in a situations of conflict
between the Charter and other international obligations, the Charter takes precedent. Cooperation with the EU's Common Foreign and Security Policy as well as the Common
Security and Defence Policy or with NATO through PfP and any accompanying obligations
are thus of secondary character to the Charter. For Ireland, this is particularly relevant
regarding the EU. The EU is also bound by international law and thus the EU must act in
accordance with the UN Charter. If Ireland is to continue to support the UN as the sole body
with the ability to authorise force outside of self-defence, in situations of controversy it
would be important for Ireland to clearly state that the UN Charter, and particularly Article
103, is paramount.
Authorisation by the General Assembly is of a somewhat different character. Historically,
the General Assembly, under Resolution 377 (1950) United for Peace has authorised the use
of force, however this form of action has not been availed of since the end of the Cold War.
In situations where states request the General Assembly's assistance and resolutions follow
from such requests, intervention is potentially possible. Such requests and support for such
resolutions must be considered in the context of the levels of conflict within the requesting
state. This may also be relevant with regard to UN Secretary General led activities. Under
Article 99 of the Charter she/he possesses good offices' powers, enabling engagement in the
pacific settlement of disputes. Or for example, in the case of SG Dag Hammarskjöld in the
Congo, a combination of General Assembly resolutions and Secretary General activity may
Dr. A. O'Donoghue
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led to direct activity in conflict and the command of peacekeepers. 2 Presently it is unclear
whether this kind of action is envisaged under the triple-lock and this requires clarification.
Recent interventions in Libya and actions regarding Syria, under the banner of humanitarian
intervention or responsibility to protect, has led to several claims that NATO engagement in
Kosovo (1999) established an exception to the Charter's command of the use of force. 3 This
was most particularly articulated, following the use of chemical weapons in Syria, by the UK
Attorney General. His advised that '[i]f action in the Security Council is blocked, the UK
would still be permitted under international law to take exceptional measures in order to
alleviate the scale of the overwhelming humanitarian catastrophe in Syria.' 4 This is
incorrect. The use of force in Kosovo, which has been argued to be legitimate but illegal, did
not set a precedent permitting exceptions to Security Council authorisation. There was
widespread and global disagreement with NATO's use of force making the creation of new
customary international law impossible. Further, from a rule of law perspective, it would be
entirely dissatisfactory to support such an exception while the details of when such an
exemption occurs remains unclear. While the Security Council's political wrangling remains
unsatisfactory, such has been the case from its inception. Historically the General Assembly
or the Secretary General has stepped into such breaches or countries have done so alone in
the cognisance that they are acting illegally (India in East Pakistan 1971), (Vietnam in
Cambodia 1978), (Tanzania in Uganda 1977). The motives of countries undertaking such
activities have, however, often been questionable and it is not suggested that Ireland should
support such individual actions or the development of an exception to Security Council
authorisation without fundamental and coherent reform of the law surrounding the use of
force.
With regard to the latter two steps, a formal Government decision and the approval of the
Dáil, both are (with the exception of Articles 28 of the Constitution with regard to the
declaration of war) open to legal reform without constitutional change. Potentially, the
2
Ireland contributed to the Congo operation (1960-64), A O'Donoghue 'Good offices: Grasping the Place of
Law in Conflict' (2014) Legal Studies, DOI: 10.1111/lest.12029
3
A O'Donoghue 'Humanitarian Intervention Revisited' (2005) 1 Hanse Law Review 165, Secretary General's
Report on the Implementation on the Responsibility to Protect. (2009) A/63/677
4
Guidance: Chemical Weapon use by Syrian Regime: UK Government Legal Position, August 2013,
https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legalposition/
Dr. A. O'Donoghue
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requirement for a debate could be broadened to the Oireachtas as a whole, though this
would add to time pressures which may be problematic in some circumstances. The putting
of such questions to the Dáil is part of a broader legal trajectory within states where the
executive's power to use force is in the process of curtailment by the legislature. Such
debates over executive power are ongoing in the UK, France and the USA. Thus Ireland is
actually at the forefront of a broader trajectory. Arguably, the triple lock should be put on a
more secure statutory footing, as presently, its domestic stages are policy based and subject
to alteration. Thus, while the triple-lock may appear cumbersome it is part of broader
constitutional development to ensure legitimacy of action within states.
Ireland's commitment to peacekeeping has been long-running and has always stayed within
the remit of UN authorisation. To ensure that peacekeeping operations remain legitimate it
is suggested that Ireland maintains this policy of only taking part in UN authorised missions.
Such authorisation aids in securing the acceptance of troops in states subject to the
resolution and thus alleviating some of the potential dangers of such participation. Further,
with the development of the international rules on both state and international organisation
responsibility by the International Law Commission the chain of responsibility for actions
undertaken in pursuit of peacekeeping is clearer. 5 The identification of international
responsibility may not be so easily resolved outside of UN authorised actions.
Recommendations:
•
While the triple-lock may appear cumbersome it ensures both domestic and
international legitimacy by guaranteeing that Ireland complies with international law
and ought to be maintained.
•
The system ought to placed on a firmer statutory footing, particularly with regard to
whether there is a particular order in which the specific requirements operate.
•
Ireland should make a firm commitment to reform of the Charter, particularly the role of
the Security Council in humanitarian crises and the use of the veto regarding the use of
force and not support the development of unnecessary and potentially dangerous
exceptions outside the UN.
5
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
November 2001, Supplement No. 10 (A/56/10), Draft Articles on Responsibility of International Organizations
2011, A/CN.4/636
Dr. A. O'Donoghue
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How can Ireland’s traditional policy of military neutrality be dovetailed with increasing
requirements for Defence participation in collective security cooperation?
Military neutrality, as opposed to neutrality, is not a legal concept within international
humanitarian law and thus Ireland’s position is merely subject to the Seville Declarations on
the Treaty of Nice. Despite the Green Paper's claim that Ireland's policy of military neutrality
was born out of World War II in fact it dates to the formation of the state.6 During
negotiations towards independence, the years following Ireland's admission to the League
of Nations and the Spanish Civil War, Ireland adopted a policy of military neutrality.
Neutrality was not given a constitutional footing in 1937 thus maintaining its status as
policy, as opposed to constitutional or even legal requirement. Indeed, under Article 28, the
constitution anticipates the possibility of Ireland becoming engaged in war. While World
War II was the longest period of consolidated military neutrality, the policy emerged from a
period when Ireland was distinguishing itself as an independent state with a separate
foreign policy and a commitment to multilateralism. This is an important distinction as it
suggests that the policy emerged and became part of political rhetoric in the pre-UN Charter
era. In outlawing the use of force and putting it in the purview of the Security Council, under
Chapter VII or conditions of self-defence, the Charter has placed it firmly in the stead of
multilateralism. Indeed it is questionable whether a state which joins the UN may maintain
its neutrality as binding as Chapter VII resolutions may require states to take actions which
would violate what is required of neutral states under international humanitarian law. 7 This
question has not become a point of debate at the UN and the Charter may have been
adapted to accommodate neutrality by customary international law through the activity of
states such as Ireland, Austria and Switzerland.
Thus the underlying rationale of Ireland's military neutrality ought to be considered in the
modern context without giving undue weight to its historical attributions. As the Green
paper describes Ireland engages with NATO through the PfP and the EU's Common Foreign
and Security Policy as well as the Common Security and Defence Policy. Regional collective
6
A O'Donoghue, The Inimitable Form of Irish Neutrality: From the Birth of the State to World War II (2008) 30
Dublin University Law Journal 259, A O'Donoghue, 'Neutrality and Multilateralism after the First World
War' (2010) 15 Journal of Conflict and Security Law 169
77
The Swiss decision not to join until relatively recently is evidence of this problem.
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security is envisaged under Chapter VIII and, as the Green Paper acknowledges, has been
used extensively, often successfully, by the UN since the end of the Cold War. Further, the
Charter also envisages that in occasions of self-defence or in situations where states request
support, regional organisations are entitled to take action. This is reflected in Article 5 of the
text of the North Atlantic Treaty which also, under Article 1, recognises the role of the UN.
NATO's recent action in Libya is an example of the expansive reading of the Treaty and the
Charter. Nonetheless, there have been occasions, such as NATO's actions in Kosovo, which
are entirely outside of UN authorised action, self-defence or requests for intervention. If
Ireland is to maintain the triple-lock, its commitment to the UN and its position of military
neutrality it could not take part in unauthorised NATO-led actions.
Membership and participation of regional collective security operations is possible however
to preserve military neutrality the triple lock must be maintained as a qualification of action.
This is predicated on both the maintenance of Ireland's claim of military neutrality and a
commitment towards legal legitimacy with regard to the international and regional use of
force. At present, military neutrality acts as a default position and an aspect of Ireland's
foreign policy. In deciding whether to make a change to this policy broader considerations
such as the Department of Foreign Affairs' Irish Aid programme and Conflict Resolution Unit,
and the role of Ireland's stance as a military neutral in these operations, require broader
consideration as a change in policy may hamper their activities.
Recommendations:
•
Ireland should revisit the rationales for military neutrality in the modern era, particularly
its political and legal basis in circumstances where it intends to be an active member of
the UN.
•
With the exception of matters of self-defence or requests for support, Ireland should
ensure that the triple-lock system is the basis for any action which constitutes the use of
force on a regional basis.
•
If military neutrality is maintained as a cornerstone of foreign policy then the triple-lock
and thus UN authorisation, must form part of any collective or regional security
arrangement that Ireland enters into with other partners.
Dr. A. O'Donoghue
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