Mutual collective defense and solidarity within the EU, invoked by France to counter ISIS

(To Giuseppe Paccione)
25/11/15

After the attacks in the heart of Paris of 13 November 2015, perpetrated by a terrorist group connected with DAESH or ISIS, the French government authorities have invoked the application of the 42 article of the Treaty on the Functioning of the EU (TFEU) o Lisbon Treaty, concerning mutual defense between the Member States of the TFEU. This provision concerns its analogy with that which was set out in Article 5 ° of the founding Treaty of the WEU (Western European Union), according to which, if one of the High Contracting Parties were the object of an armed aggression in Europe, the others will lend it , in accordance with the provisions of Article 51 of the United Nations Charter, aid and assistance by all means in their power, military or otherwise. It should be mentioned that the WEU has been eclipsed in the 2010 and therefore is no longer operational. But let's analyze the content of this TFEU rule.

This provision in its paragraph 7 determines a duty of solidarity between States that does not constitute competences for the European Union according to which if a Member State suffers an armed aggression in its territory, the other Member States are obliged to lend him help and assistance with all the means in their possession ", in compliance with art. 51 of the UN Charter. Activation condition is aarmed aggression. It should also be noted that there is another different provision of the TFEU which is constituted by the article 222 which states that the Union and the Member States act jointly in a spirit of solidarity if a Member State is the subject of a terrorist attack or is the victim of a natural or man-made disaster. The Union mobilizes all the instruments at its disposal, including the military means 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 a possible terrorist attack; to 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. As can be seen, in this rule there is a real European solidarity clause with a clear reference to the terrorist attacks.

Now, the way of France to appeal to Article 42, paragraph 7, can be considered justified, so much so that unanimously it has been accepted by each EU Member State, meaning that even an armed attack by an actor does not State government from abroad with serious consequences, can be defined as armed aggression.

Taking up the 222 provision, we can consider the fact that it has an essentially domestic or internal dimension, guaranteeing assistance to the victim state on its territory, while the Paris government has also made an appeal for external support. Compared to the 42 standard, paragraph 7, the mechanism sanctioned in the 222 article, also of the TFEU, establishes a solidarity constraint both by the European Union and by the States and, in addition, the full and direct presence of the organs Europeans. Some authors considered that the French government would not consider the activation of the 222 article of the TFEU to be free to have ample control of the crisis. Again, this clause is invoked when the state concerned considers that the crisis goes beyond its being able to react.

One wonders why France has preferred the way of the European defense clause and not, for example, the 5 article of the Atlantic Treaty? It is well known that while NATO guarantees effective procedural steps and instruments, the European solidarity clause would be considered a mere symbolic and non-operational parameter, given the question that the EU has no military capacity. The choice, at a political level, determines the willingness of the French to support development in favor of the European defense policy, almost autonomous with respect to NATO, even if the 42 article, paragraph 7, asserts the priority character of the Atlantic Alliance as a system collective defense with the involvement of the other international regional organization, such as NATO.

As already reported before, the 42 provision, paragraph 7, of the TFEU determines a legal constraint for Member States to offer assistance and aid, in the sense that each Member State has the right to examine the means at its disposal and the expression aid and assistance indicates that there is a margin of discretion, according to which a State does not have the obligation to be directly a part in military missions. It is obvious that this constraint does not affect the clear nature of the defense policy of certain Member States. Therefore, the other States must do something to be at the side of France, but the clear identification of the instruments necessary or appropriate to fulfill this obligation remains entrusted to each State, which must adopt the decision in good faith and through bilateral negotiations with the French.