"That the proposal 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 17 November 2003, a copy of which was laid before Dáil Éireann on 2 January 2019; and
(ii) the North Atlantic Treaty Organisation Partnership for Peace Status of Forces Agreement, done at Brussels on 19 June 1995, a copy of which was laid before Dáil Éireann on 2 January 2019, subject to the respective reservations, copies of which were laid before Dáil Éireann on 2 January 2019;
subject to the respective reservations, copies of which were laid before Dáil Éireann on 2nd January, 2019, be referred to the Select Committee on Foreign Affairs and Trade, and Defence, in accordance with Standing Order 84A(3)(b), which, not later than 5th February, 2019, shall send a message to the Dáil in the manner prescribed in Standing Order 90, and Standing Order 89(2) shall accordingly apply.”
A status of forces agreement, SOFA, regulates the legal and administrative arrangements applied to members of foreign forces operating within the state where they are deployed. It relates to the immunities and privileges extended to members of the Defence Forces when serving on overseas missions as part of a UN-mandated force. It also relates, in the case of the EU and Partnership for Peace, PfP, SOFA, to the immunities and privileges extended to members of the Defence Forces when engaged in exercises in EU or NATO and PfP member states or on stand-by for the EU battle groups.
All international organisations, including the UN, the EU and NATO, have concluded SOFAs with the states where they have deployed forces or engaged in training missions. In respect of UN operations, the UN concludes a specific SOFA with the receiving states, for example with Lebanon in relation to UNIFIL. In the case of EU or NATO-led operations authorised by the UN, either a specific SOFA covering all deployed personnel is concluded or the relevant EU or PfP SOFA applies to personnel from participating states.
In circumstances where members of the Defence Forces are deployed within the territory of another EU member state on training or exercises, or where the relevant overseas mission utilises the EU or PfP SOFA, members of the Defence Forces do not benefit from the standard immunities and privileges as of right. This is due to the fact that Ireland has not ratified these SOFAs. In such circumstances separate arrangements have to be put in place through an exchange of letters. This, however, is not always possible. Ratification of these SOFAs is designed to address that deficiency. SOFAs are designed to protect deployed military personnel in terms of accidents, third party liability claims, potential prosecutions and other actions that may be covered by legislation in the host country. The ratification of the SOFAs simply means that the Defence Forces can acquire the rights and privileges of these arrangements as a matter of right rather than having to rely on a difficult or contentious exchange of letters between jurisdictions, which may or may not be concluded on their behalf.
The EU SOFA has been ratified by all member states except Ireland. It can only come into effect on ratification by Ireland. All other non-aligned or neutral member states, including Finland, Sweden and Austria, have ratified the EU SOFA. Approval by this House is not required in respect of ratification of the EU SOFA because this is covered under the Lisbon treaty. However, I have included it in the motion for the sake of transparency.
Ratification of these SOFAs will only extend to members of the Permanent Defence Forces deploying overseas where these SOFAs apply. They cannot apply within the State. There is a constitutional prohibition via Article 15.2 on Ireland agreeing to receive and base foreign troops on its territory and, as a result, there is no situation in which the SOFA could have application in respect of foreign forces in Ireland, including forces in transit or visiting personnel. In that regard, reservations have been drafted for both agreements, clearly articulating Ireland’s constitutional position and leaving no scope for ambiguity. The reservations state: “Ireland shall not be a receiving state for the purposes of the present Agreement”.
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 will be more strongly discernible following this process, particularly in light of the reservations we are attaching to our instrument of ratification.