Paul Kehoe (Wexford, Fine Gael) | Oireachtas source

I move:

That Dáil Éireann approves the terms of:(i) the Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context, done at Brussels on 17th November, 2003, a copy of which was laid before Dáil Éireann on 2nd January, 2019; and

(ii) the North Atlantic Treaty Organisation Partnership for Peace Status of Forces Agreement, done at Brussels on 19th June, 1995, a copy of which was laid before Dáil Éireann on 2nd January, 2019;subject to the respective reservations, copies of which were laid before Dáil Éireann on 2nd January, 2019."

On 16 January, the House discussed this motion before its referral to the Select Committee on Foreign Affairs and Trade, and Defence. I appeared before that committee on 24 January to discuss the motion further. I thank Deputies for their input to date. I acknowledge the views expressed and hope that this debate can provide any further clarity that may be required.

A status of forces agreement, SOFA, is designed to regulate the legal and administrative arrangements applied to members of foreign forces operating within the state where they are deployed. SOFAs provide for immunities and privileges extended to members of our Defence Forces when serving on overseas missions. SOFAs also relate to the immunities and privileges extended to members of the Defence Forces when engaged in exercises in EU or NATO and Partnership for Peace, PfP, member states, or when on standby for the EU battle groups. All international organisations, including the UN, EU and NATO, have concluded SOFAs with the states where they have deployed forces or engaged in training missions. The SOFAs deal with matters such as jurisdiction, claims and applicable law between the sending organisation or state and the host state where these personnel are deployed.

Approval of this motion will allow Ireland to become party to the EU and PfP SOFAs. This will ensure that our Defence Forces enjoy the same immunities, rights and privileges as their military colleagues while serving overseas on peacekeeping and crisis management operations or engaged in exercises where these SOFAs apply. They will acquire these immunities and privileges as a matter of right rather than having to rely on a complicated procedure of exchange of letters between jurisdictions, which may or may not be concluded on their behalf. We cannot continue to operate on that basis. Our Defence Forces should be protected in the same manner as all other military personnel with whom they operate on missions and exercises when deployed outside the State.

In the past, issues have unnecessarily arisen in the completion of an exchange of letters through no fault of either party concerned. The resolution of such issues requires that Ireland depends on the goodwill of our EU or other partners. Ultimately, situations have arisen where no exchange of letters has been agreed and our Defence Forces have been restricted in their participation or operate without the relevant protections.

In 2016, as part of Ireland's participation in the German-led battle group, Germany advised that it could not facilitate the exchange of letters arrangement in the time required due to legal, constitutional and parliamentary requirements. In the case of this battle group, the immunities and privileges afforded to foreign militaries could only be extended through the PfP SOFA. As a result Ireland could not participate in the field exercises undertaken by all other battle group participants in the German battle group. This is unsatisfactory from a training and inter-operability perspective. We also had to rely on the goodwill of partners and members of the Defence Forces in respect of the deployment of a number of personnel to the battle group operational headquarters for the standby period. Another example is the case of the three month deployment to Operation Artemis, the EU mission in the Congo in 2003. For this mission, while the terms of the exchange of letters was fully agreed in advance, with France as lead nation, the formal process had not been concluded before the troops had completed the mission.

I was asked in committee why I was bringing forward the ratification of these agreements now. My answer is simply that I would like to get these matters resolved before our proposed participation in the German-led battle group in 2020. We need to have the SOFA in place so that the Defence Forces can participate in the full battle group exercise before the standby period.

The EU SOFA has been ratified by all EU member states except Ireland. It can only come into force upon ratification by Ireland. All other non-aligned or neutral EU member states, including Finland, Sweden and Austria, have ratified the EU SOFA.

In relation to the PfP SOFA, it is important to note that EU crisis management operations and battle groups have operated under this agreement where there has been third state participation in operations. Often Common Security and Defence Policy, CSDP, missions and operations also involve third state participation from non-EU member states. These third states are usually parties to the PfP SOFA but not party to the EU SOFA, therefore making it more appropriate to apply the PfP SOFA in such context.

In response to questions raised in previous debates, I assure Deputies that these SOFAs will not apply within the State. Article 15.6.2° of the Constitution states that "No military or armed force, other than a military or armed force raised and maintained by the Oireachtas, shall be raised or maintained for any purpose whatsoever." Taking account of the Attorney General's advice on this provision of the Constitution and the application of the SOFAs in Ireland as well as the policy advice that I received from my Department, I have decided to include reservations to both agreements. The reservations make it clear that Ireland will not be a receiving state for the purposes of the SOFAs. As a result of these reservations, there is no situation in which the rights, immunities and privileges can have application in Ireland, including in relation to forces in transit or visiting personnel. These reservations will be associated with Ireland's instrument of ratification in respect of each of the SOFAs should this motion be approved by Dáil Éireann.

In response to other concerns raised by Deputies, I cannot stress enough that Ireland's policy of military neutrality is not diminished, circumvented or reduced by our ratification of the SOFAs. If anything, our national position is more strongly discernible following this process, given the reservations we are attaching to our instruments of ratification. The reservations, as I have stated, do not allow for any ambiguity.

Let me be clear that my sole purpose in bringing forward the ratification of the SOFAs is to ensure that our Defence Forces personnel are protected in the same manner as all other military personnel with whom they operate on missions and exercises when deployed outside the State, all the while making an invaluable contribution to international peace and security, and conflict resolution. I commend the motion to the House.

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