Home > Commentary > Justifiable wars, neutrality and the Lisbon Treaty

Justifiable wars, neutrality and the Lisbon Treaty

In a recent opinion piece in The Irish Times,Tony Kinsella remonstrated with the Anti-Lisbon campaigners regarding their stance on neutrality. While I would agree with his general premise that neutrality is not always the honorable option his argument is surely as flawed as those he seeks to condemn. In conflating the EU, World War II and neutrality Mr. Kinsella is ensuring that in the minds of the Irish populace, Ireland is or ever was legally a neutral country and that the EU threatens this stance.

Kinsella argues contrary to an earlier piece by Dr. Karen Devine that respect for neutrality is based upon the ‘goodwill of the belligerents. Constructing the alternative of an enforceable system of international law pre-supposes the existence of entities such as the European Union.’  What Mr. Kinsella is basing this on is entirely unclear. The EU or other similar entities have no interest or legal role in the maintenance of neutrality, indeed the International Committee of the Red Cross is the only body charged with the regulation of the four Geneva Conventionsand its two additional protocols. During the period which most concerns Mr. Kinsella, World War II, neutrality was maintained by a number of countries without the aid of any entity similar to the EU.

The lack of legal analysis is entirely clear as Mr. Kinsella goes on to assert that, ‘[t]here is probably no such thing as a “good war”, and the concept of a “just war” has been so recuperated, bowdlerised and spun as to have lost all meaning’. Indeed, while Grotius may wish to argue the toss with Mr. Kinsella, the notion of a “just war” has not been relevant to international law since the early 20th Century, prior even to the outbreak of World War I.

Mr. Kinsella goes on to attack the Irish position during World War II. He quotes an interesting article by Garrett Fitzgerald, ‘The Origins, Development and Present Status of Irish ‘Neutrality’’ (1998) 9 Irish Studies in International Affairs11 and then goes on to suggest that Ireland’s non-participation in World War II caused the War to go on longer than was necessary. In one fact this is accurate. D-Day was delayed for 24 hours due to weather reports from Kerry which correctly predicted inclement conditions for an invasion. (For an interesting account of this see Antony Beever’s new book “D-Day: The Battle for Normandy“) Therefore Ireland was not neutral during World War II. While arguments may be made about whether we should have been belligerents, this does nothing to support Mr. Kinsella’s supposition that it is the anti-Lisbon campaigners are making, ‘melodramatic assertions,’ rather both sides should have regard to both actual history and the law.  A more detailed account of the many misconceptions related to Irish neutrality can be found in an article I published in the Dublin University Law Journal. ‘The Inimitable Form of Irish Neutrality: From the Birth of the State to World War II’  (2008) 15(1) DULJ 259 – 278.

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  1. September 11, 2009 at 12:17 pm

    This is a great post, and I couldn’t agree more. In fact, the opinion piece from Kinsella suffers in my view from the dramatic nature in which he chose to make his argument as much as from the lack of legal soundness. It might be worth noting, however, that Ireland’s principle of neutrality (as it is known in the political sphere at least) is NOT threatened by Lisbon and the traditional triple lock (UN authorisation, Dáil authorisation and Cabinet authorisation) will continue to apply to all decisions about military participation taken in Ireland, including in relation to operations undertaken with other EU states.

  2. aoifemod
    September 11, 2009 at 12:19 pm

    I would agree, except I would argue that in fact the triple lock is nothing more than a political concoction which neither reflects international nor domestic law.

  3. September 11, 2009 at 12:24 pm

    Oh yes, I agree, but it does provide a political safeguard that is quite embedded in the Irish political system and is not insignificant from that perspective. Also, to listen to people who claim Lisbon will negatively impact on our ‘neutrality’ one would think that our own domestic practices re triple lock etc… were going somehow to change, when the repeated position of the Government is that there will be no change whatsoever in that respect.

  4. pmcauliffe
    September 11, 2009 at 4:04 pm

    I think the post boh misunderstands what Kinsella was actually saying in relation to WWII and the EU and makes arguments entirely unrelated to what Kisella was saying. It is an argument based on history and politics rather than on international law, and refutations of it based on the Geneva Conventions are more than a little beide the point. Respect for neutrality is, as Kinsella argues, based upon the ‘goodwill of the belligerents’. To return to Ireland’s nominal neutrality in WW2, while it may have tipped more in favour of the Allies, it was never strained to the degree that the Luftwaffe felt compelled to bomb Dublin in reprisal, which they very well might have done. Small neutral naions are at the mercy of larger ones in this regard. I do not know the ins and the outs of collective security in he Lisbon Treaty, but it is quite arguable to say that alternative types of enforceable system of international law (like the EU) can give effect to neutrality than existed in, say, 1942. As a EU state, other European countries would have a legal and political obligation to defend Ireland’s neutrality that they di not have in the war. It is an entirely hypothetical argument, of course, but it is sound.

    The poster is quite correct to say that the notion of a “just war” has not been relevant to international law since the early 20th Century, prior even to the outbreak of World War I. However, it has been relevant to every political or moral decision we have made in evaluating the rightness or wrongness of a conflict since then. Kinsella wasn’t rooting his argument in international law – at best, it was tangental to his argument. It’s a bit silly to attack him on the grounds that he misunderstands inernational law when he made no claim to base his article on its prescriptions. We might as international lawyers always wish that international law is the most important factor in such discussions, but it is not

  5. aoifemod
    September 11, 2009 at 4:21 pm

    Thanks for the comment, however I would entirely disagree that he does not base his arguements in law. His reference to the enforceable system of international law with regard to the EU and our belligerent status certainly place it within this realm. As I mentioned in the post I don’t have an issue with his overall premise, however Kinsella in seeking to use law to underpin his point and similar to the triple lock system and the no campaign’s reference to what the Lisbon Treaty itself and what it will require Ireland to do or otherwise (The Treaty is certainly a legal document) to say that it is silly to discuss the law is to play into the hands of those who seek to avoid all legal obligations unless it suits to invoke it. If we are having a constitutional referendum regarding our international legal obligations (be they sui generis in the EU realm) it certainly is an important factor

  6. pmcauliffe
    September 11, 2009 at 5:35 pm

    I interpret his argument as based very partially in EU law, insofar as he argues that an enforceable system of international law pre-supposes the existence of entities such as the European Union (that is, using EU obligations to give effect to international law), and not at all in public interntional law per se. It would, then, give the EU an interest or legal role in the maintenance of neutrality in the hypothetical situation of Ireland/Sweden/Cyprus’s neutrality being challenged which did not previouly exist. Actual international law (on neutrality or th laws of war) or constitutional law (the triple-lock) did not form part of his argument.

    On a separate issue, it’s nice to see someone challenge the usual pieties of the neutrality-at-any-price brigade. It’s a sacred cow which needs to be slaughtered.

    • aoifemod
      September 12, 2009 at 12:16 pm

      I am still mystified as to where EU law fits into this? His one comment regarding the EU was as an example of a type of organisation that would ensure compliance with the laws of war. The system of alliances in Europe (NATO & WEU) maybe somewhat complicated but Ireland’s neutrality is not guaranteed by either these or the EU. Beyond NATO and the Warsaw Pact in its day within Europe guaranteed neutrality such as Belgium’s prior to World War I was based upon treaties not upon any organisation.
      If the arguement is that the EU would have a role beyond being invited by the Irish Government in the event of invasion or threatened invasion, the the anti-Lisbon campaigners are correct, there is some secret meaning to the Lisbon Treaty that no body but them realises. The EU could only become involved in any of its members military affairs on their behest. If the contrary were true as Mr Kinsella points out we would have Danish troops patrolling the streets.

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