Toward a European Mutual Defense?

By: Camille van Hamme

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Photo Credit: European Parliament

In the wake of the November terrorist attacks in Paris, France invoked Article 42 (7) of the European UnionTreaty and requested assistance from its European partners. Article 42 (7), little known to the public, is called the mutual defense clause and obliges all member states to provide aid to other member states in the case of an armed attack.

This is the first time that Article 42(7) has been invoked making it indisputably a historical event. All twenty-eight European Union (EU) defense ministers instantly and unanimously supported France’s demand for assistance. But what does it really mean to activate this article? What does it entail? What are the consequences?

What is Article 42(7) of the European Union?

The mutual assistance clause was introduced in 2009 with the Lisbon Treaty at the behest of some member states, who requested that the EU play a bigger role in defense. Greece in particular, desiring more protection against lasting rival Turkey, was a fervent advocate of such approach.

It stipulates that, “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. ”

What kind of assistance are member states required to provide?

Since the article has never been invoked before, there is no precedent for action. And given the vagueness of the clause, it is unclear what kind of assistance the member states should provide.

However we know that, although member states have an automatic obligation to provide aid and assistance, they retain a large amount of discretion in implementing this obligation. The aid they are required to provide depends on the means that they have. Therefore, in the case of a terrorist attack, states have to negotiate concrete actions to take in order to implement the clause. The assistance can range from sending soldiers or medical teams to simply allowing overflights.

In addition, the article contains a provision allowing European countries that have traditionally remained neutral, like Ireland, Sweden and Austria, to abstain from taking part in any military action.

What is the role of the European Union?

It is clear that the clause creates no obligation for the European Union, itself. The mutual defense is rather an intergovernmental solution that only obligates member states, with no Union responsibility. This characteristic is what distinguishes it from the solidarity clause of Article 222 of the TEU, which requires a joint action between the EU and its members.

The solidarity clause is another opportunity to request aid and assistance from EU partners. To date, France has not invoked Article 222 although it expressly foresees the case of a terrorist attack. Many observers have suggested that France decided to activate the mutual defense clause instead in order to retain a greater role in the response to the attacks since Article 42 (7) of the TEU is intergovernmental in nature.

Why did France invoke Article 42(7) of the TEU and not Article 5 of NATO?

In response to the terrorist attacks, observers expected France to trigger Article 5 of the North Atlantic Treaty. It came to many as a surprise that President Hollande decided to turn to the EU framework instead. NATO Article 5 is comparable to article 42(7), as it is also a tool of collective self-defense. It provides that “an armed attack against one member state is an attack against them all”. The article does not contain the neutrality limitation, has more explicit wording and contains a higher level of commitment compared to the European defense clause. Invocation of this article would also have allowed France to have by its side strong military partners such as the U.S. Finally, NATO Article 5 was used once before after the terrorist attacks against the United States on September 11, 2001.

Thus, the question that comes to our attention is why did France choose the untested EU- option and did not invoke the already established NATO Article 5?

Unsurprisingly, the reasons seem to be political.

First, the current coalition against ISIS is an ad hoc group of states, outside the structure of NATO. France follows this line by invoking Article 42(7), which asks for individual actions by member states. It is also a way for France to play a greater role in the decision-making governing the response to the attacks. Moreover, this is a sensitive matter and except for the U.S., only a few NATO members actually agree with France on the military actions to be taken against ISIS. Another possible reason is that NATO Article 5 refers to an armed attack against one member whereas Article 42(7) can be invoked in the case of an armed aggression, a condition more easily fulfilled. Last but not least, France has always been a strong supporter of an independent EU defense policy. By invoking the European clause rather than resorting to NATO for assistance, France stressed its European approach to solving issues. In times of current European “crisis” a sign of European solidarity is a strong political signal.

Member states’ response

EU Defense Ministers expressed their unanimous and full support to France through their readiness to provide all the necessary aid immediately after the attacks. Since then, bilateral negotiations have taken place between France and member state governments to decide which types of assistance would be provided (see table for response of every member states). To name just a few, Britain launched airstrikes on Syria and Germany’s parliament has approved a plan to join the military campaign against ISIS.

However, it is not certain that activation of the assistance obligation of Article 42(7) was truly necessary to receive such aid from EU countries. As a matter of fact, some states have presented the implementation of measures planned before the attacks as a response to the requested assistance.

Therefore, the historic invocation of the mutual defense clause by France does not appear as a claim to trigger real duties from each member states. It seems rather to have been a political call, a symbol to foster a European response to the attacks.

Clarifying the mutual defense clause obligation

Last January, the EU Parliament adopted a resolution on the mutual defense clause requesting to draw up guidelines on how the clause should work, so as to avoid any need for ad hoc measures.

Adoption of this resolution should be strongly supported. The activation of the mutual defense clause is a unique opportunity to set the grounds for a strong European Defense, but to date, the mutual defense clause raises many questions left unanswered. What kind of attack could trigger activation of the clause? What types of assistance are states required to provide? Can Belgium activate the clause following the March Brussels attacks?

Given the current terrorist threats faced by Europe, it is crucial to clarify the terms of the clause and the scope of the assistance. Practical arrangements should be prescribed to ensure an efficient collective response in similar circumstances in the future.

Camille is an LLM candidate at Berkeley Law. She is a student contributor for Travaux.