By: Mark Rhinard & Sara Myrdal
In the aftermath of the Paris terrorist attacks, the French government has called on the EU's "Mutual Defence Clause" (Article 42.7) to reassure its citizens and to rally European partners to its cause. But what is that cause, and is the Mutual Defence Clause the most appropriate means to achieve it? The French government has pointedly ignored a separate, arguably more relevant collective security agreement in the EU: the Solidarity Clause (Article 222). A brief description of both is in order.
Article 42.7, TEU (Mutual Defence Clause)
When national representatives gathered during the European Constitutional Convention in 2002, intending to draft a new Constitutional Treaty for the EU, discussion eventually turned to what kind of a security community the EU should be. The EU had never been a collective security alliance - that was the role of NATO and the separate Western European Union arrangement during the Cold War. But in the post-Cold War and post-September 11 security environment, a majority of governments felt the time was right for the EU to take on responsibilities for collective security. Naturally, a debate ensued, and while the Constitutional Treaty never survived to see light of day, the results of those early debates were crystalized in the Lisbon Treaty - today's governing treaty for the EU.
One debate on collective security focused on territorial defence. The Western European Union (WEU) was disbanding, a casualty of the end of the Cold War. Some representatives to the Constitutional Convention suggested that the WEU's collective defence clause should be transferred into the EU's treaties. That defence clause called for common action when one of its members faced an aggressive threat (namely, the Soviet Union) to its territory. It suggested a military response to known state adversaries. That clause was eventually transferred in to the EU's treaties (now, Article 42.7) with the following text:
If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.
However, conditions were added to emphasize that the EU's Mutual Defence Clause can only be used in conjunction with Article 51 of the UN Charter and, in a footnote, without prejudice to EU members' pre-existing security arrangements (read: NATO).
Article 222, TFEU (Solidarity Clause)
A second debate arose in reaction to the first. Several EU governments, not surprisingly, were uncomfortable with the notion of the EU as a traditional, collective defence alliance. The idea of "armed aggression" (from an enemy state) on the "territory" of an EU member seemed outdated and inconsistent with a new security environment. Delegates from France, Germany, Finland and Sweden (including Anna Lindh), recommended a more generic security clause which took into account "new" security threats like terrorism, diseases, and infrastructure breakdowns. The emphasis was not to be on territory (regarded as old security thinking) but rather "democratic institutions" and "societal values." This modernized version of collective security took the name of the "Solidarity Clause." When the Madrid train bombings took place (2003) and the London transport attacks (2005), the Solidarity Clause was mobilised (although in the form of a non-binding "declaration" since formal adoption of the Lisbon Treaty, where the Solidarity Clause now rests, was delayed until 2009). Some excerpts from the Solidarity Clause include:
1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) prevent the terrorist threat in the territory of the Member States; protect democratic institutions and the civilian population from any terrorist attack; assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.
Thus far the current version of the Solidarity Clause has not been used. It would trigger a broad set of EU-level instruments and capacities, ranging from joint policing initiatives to intelligence cooperation, and from civil defence deployment to humanitarian relief operations. During a terrorist attack, one might argue that this wide range of capacities is indeed required. Even during the recent (and ongoing) migration crisis, Slovenia contemplated invoking the Solidarity Clause.
So why did the French government choose Article 42.7? French president Francois Hollande clearly wanted to take a strong, aggressive stance in the immediate aftermath of the attack. Article 42.7 offers a symbolic opportunity to "get tough on terrorists," using military means. It could help boost French citizens' support for bombing ISIS in Syria by embedding those actions with wider EU frameworks. And it is less supranational than the Solidarity Clause and its complex webs of EU-level machinery. By contrast, the Mutual Defence Clause is intergovernmental: national governments do all the work.
We predict that in the medium-term, attention will shift from the Mutual Defence Clause to the Solidarity Clause. EU partners endorsed France's triggering of the Defence Clause, but owing to historical debates mentioned above, they are unlikely to be enthusiastic partners. Non-aligned and neutral countries like Sweden, Finland and Ireland will offer only measured assistance. They may even remind France that the Solidarity Clause offers a better and broader umbrella for action on multiple fronts, including border security, intelligence cooperation, and joint policing.
As terrorism becomes (unwisely) linked to the EU's asylum policy, the Solidarity Clause can also be used for a broader approach to address both issues: including improved sharing of help for destitute migrants within Europe. In short, France's use of Article 42.7 looks narrow and short-sighted in view of all that needs to be done to protect not just European territory, but also European societies.
Mark Rhinard, Professor, Stockholm University and Swedish Institute of International Affairs
Sara Myrdal, Advisor, Swedish Civil Contingencies Agency