Is a Preamble less legally binding than an Article?

NoQuarter

I was reading about the upcoming Referendum and this passage got me thinking:

http://www.rte.ie/news/2012/0430/guide-to-the-eu-fiscal-treaty.html wrote:

"STRESSING the importance of the Treaty establishing the European Stability Mechanism as an element of the global strategy to strengthen the economic and monetary union and POINTING OUT that the granting of financial assistance in the framework of the new programmes under the European Stability Mechanism will be conditional, as of March 1 2013, on the ratification of this Treaty…"

The original draft of the Fiscal Treaty contained no such precondition but during the early stages of negotiation it was insisted upon by Germany.
According to the Government, the principle of such a precondition was “not contested” and was “an obvious connection.”


Since the connection between the ESM and ratifying the Fiscal Treaty is in the preamble (i.e. the recitals) of the Treaty and not an article in the main body of the Treaty, does this make it less legally binding? Not according to officials who insist it is a clear part of the treaty and represents a clear statement of the intention of the contracting parties.

http://www.rte.ie/news/2012/0430/guide-to-the-eu-fiscal-treaty.html

Are there cases on this in relation to the Irish Constitution? Has anyone any views on it? And is the EU stance the same if so?

beeftotheheels

This has nothing to do with Irish domestic law, and little to do with EU law. It's down to the Vienna Convention. Recourse can only be had to the preamble to a treaty if there is ambiguity as to the meaning of an Article of the Treaty.

However, that's the legalistic argument that a Court would have to determine - whether there was ambiguity etc.

The practical answer is that since all States believe that they intend (as expressed in the preamble) ratification of the TSCG to be a precondition of ESM access, you'd probably have to be prepared to take them to court (the CJEU) to force the point, where you may or may not win.

But here's the thing. You need a bailout, you don't have time to lawyer up and head to Court, you have weeks not months or years.

And trying to pull a fast one by seeking to exploit this, would lessen the goodwill required to get help fast.

Sometimes being legally right, and I'm not at all sure that the arguments on this would prevail, is not a great answer, if you go bankrupt on your way to Court. Especially if there's an alternative which involves p!$$ing no one off, while ensuring access to the rescue mechanism.

NoQuarter

Thanks for that reply!

My question was more generaly and I'm actually wondering about the PReamble of our own Constitution too, your first sentance probably answers the question about whether the Article is ambiguous or not though!

Farcear

Constitution and International Treaties are different beasts, so I'll break up this explanation.

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A. Treaties

Articles of an international Treaty are binding. The Preamble of an international Treaty is not binding.

However, according to the rule in Article 31 of the Vienna Convention on the Law of Treaties 1969, the Preamble of a Treaty is taken into account when interpreting the Articles of that Treaty: (EDIT: I disagree with beeftotheheels in that I believe the Vienna Convention's rules in interpretation must be applied in all cases, even if there is no apparent ambiguity.)

SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

This Preambles in international Treaties are of interpretative value at best; assuming the State has signed up to the Vienna Convention.

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B. Constitution

The relevance of a Preamble in a Constitution will vary from country to country. It is for the Supreme Court of any given State to decide whether or not to use it.

In Ireland, Supreme Court judges have placed reliable on the Preamble not just to interpret Articles of the Constitution but to enumerate new rights for citizens. (see: http://www.cearta.ie/2011/07/what-is-the-preamble-to-a-constitution-for-2/ )

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In short: The Preamble of the Irish Constitution is a more powerful interpretative tool than the Preamble of an International Treaty. However, neither can be said to be binding in the legal sense of the word. Something is either binding or it is not.

I hope this answers your question.

beeftotheheels

NoQuarter wrote: »

Thanks for that reply!

My question was more generaly and I'm actually wondering about the PReamble of our own Constitution too, your first sentance probably answers the question about whether the Article is ambiguous or not though!

My answer was about treaties. Not the Irish Constitution.