The international community is currently forced to rethink its definitions of security and defense. The brutal war of aggression against Ukraine, launched by Russian President Vladimir Putin on the morning of February 24th, has vehemently pushed the question of “What if” in case of a direct confrontation between Russia and NATO to the center of attention.
This question does not only seem to occupy the vast majority of multilateral political action but has also sparked broader debates on the nature and strength of the Western system of mutual defence.
Article 5 of the North Atlantic Treaty, today comprising 30 countries, states that:
“an armed attack against one or more of them in Europe or North America shall be considered an attack against them all” and that “each of them, in the exercise of the right of individual or collective self-defence […], will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force”.
This mutual commitment to protect each other from aggression has been at the very core of the North Atlantic Alliance since its beginning, intended not least to create a shared sense of solidarity among its members.
The often ignored yet highly relevant Provision of the EU Treaties
But while this instrument is relatively well-known, little light is usually shed on the fact that the European Union has quite a similar tool at its disposal. Its history dates back to the early 1950s when the Pleven Plan sought to establish a European Defence Community (EDC). While these visions ultimately failed, the Paris Accords of 1954 paved the way a little bit later for the establishment of the now-defunct Western European Union (WEU) which had a mutual defense clause incorporated in Article 5 of its founding documents.
The following years saw a gradual shift of the center of gravity of collective defense towards the North Atlantic Alliance and a relatively dormant European defense clause. Not only did some critical member states fear an erosion of their neutrality, but they also sensed a possible duplication of NATO. The 2007 negotiations around the treaty amendments of Lisbon, which brought up again the question of how to deal with this particular provision, made an amended version of the clause an integral part of the TEU (Treaty on European Union). Article 42(7) states today 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”.
The amplified security challenges that the world is currently facing, not least caused by the Russian war of aggression on Ukraine, make it more relevant than ever to take a closer look at this often ignored feature of the European Union.
Twins or Distant Relatives?
At first glance, Article 42(7) and its North Atlantic counterpart can be barely told apart. Both extend a state’s right to self-defense, written down in Article 51 of the United Nations Charter, both allow for the use of armed force in case of outside aggression and both have been triggered only once since their invention, the NATO clause after the terror of 9/11 and the EU article after the November 2015 Islamist attacks in France.
However, one does not have to be an expert in International Law in order to detect some essential differences between the two provisions. While the North Atlantic Treaty limits the mutual defense case to a situation of a direct armed attack, TEU Article 42(7) includes a broader range of aggressions and can theoretically be applied to modern non-traditional or hybrid threats. In contrast to the former, the European version would for example be invocable in the case of air incursions or naval blockades. Paying attention purely to the wording, the EU clause even appears to be stronger insofar as it creates an “obligation” for member states to provide assistance, while NATO’s Article 5 merely refers to “such action as it deems necessary”.
It is important to note that the EU’s mutual assistance clause has deliberately been drafted differently from its NATO counterpart, ensuring enough room for some countries’ traditional neutrality and taking into account NATO members’ simultaneous obligations. In fact, it allows the attacked party to retain a more significant amount of control over the process when otherwise it would have had to involve heavier NATO players like the US. In terms of the political message conveyed, this can make a difference. However, the French case has also shown that the final decision on any assistance provided remains first and foremost with the partner countries which might not apply the same interpretive scheme to the term “obligation”.
What the current situation in Ukraine tells us about Article 42(7)
One reason for Finland and Sweden to have recently taken a bold step towards NATO membership might be their feeling that in case of an armed attack, assistance from fellow EU members would be too weak and too little backed by direct military clout. Indeed, the European mutual defense clause is often considered politically weak as opposed to the NATO provision, comprising not only the United States but also former EU member Britain. The EU as a political and economic union remains considered today as restricted in its crisis management and less capable than the North Atlantic Alliance founded with the very purpose of mutual military protection.
However, while some countries, especially small ones, have kept their traditional reluctant stance on strengthening the EU’s defense capabilities, other actors such as France’s Emmanuel Macron would like to see discussions on Article 42(7) and the prospects for a more autonomous Union take up more space. They argue that a common understanding of the member states’ tasks in case of aggression bestows a larger degree of autonomy upon a union whose voice usually stays marginal in these matters.
With particular strength, the current crisis in Ukraine has revealed that a common European foreign policy and vision is needed. If the EU’s mutual assistance clause were to be invoked in the future, no country would join the efforts without having the feeling that its interests are, at least partly, served through a joint strategy. Knowledge of the existence of Article 42(7) and a serious debate about the conditions for its application can exert pressure to move forward with the integration of national approaches to external security challenges, but also to closer coordinate internal security and intelligence challenges.
This preparation seems important because, in situations of serious aggression, some parties might prefer to rely on EU security guarantees rather than accept the risk of escalation through an invocation of NATO Article 5. In the end, it should not be forgotten that the decision to resort to mutual assistance and the subsequent choice of means essentially remain political, not purely legal or technical.
The Future of EU Mutual Defence
The current considerations have shown that mutual assistance clearly goes beyond direct military intervention. Unlike NATO, the EU’s provision might allow for more flexibility in the future, opening up the view for approaches of complementarity rather than exclusivity. Especially for those countries that have so far rejected a rapprochement with NATO, the clause might play a role as a source of reassurance, provided the EU can create a certain degree of credibility.
Read also: “EU Military Response: Uncharted Territory in the Union Policies” by F.Felici
The European supranational setting provides the advantage that an invocation of Article 42(7) and the actions subsequently taken do not only have to grow out of separate bilateral discussions but can be coordinated at the EU level. This might send if managed in the right way, a stronger signal of unity. The EU should therefore neither ignore its own mutual defense clause nor see it as a redundant doubling of well-known Article 5.
The current events should be impetus enough to rethink the provision and to spark the uncomfortable, but necessary debates regarding its interpretation and practical application. Only by running through potential scenarios and specific response types to different crises, will the EU be able to tailor the design of its common defense architecture to current and future security challenges.
- Does the EU’s mutual assistance clause deserve a more visible place in the European security and defence policy?
- In which situations could it possibly be invoked?
- Should the EU invest more in its defence capabilities?
Suggested Reading
https://www.clingendael.org/pub/2022/uncharted-and-uncomfortable/
https://www.egmontinstitute.be/eu-mutual-assistance-is-more-than-defence/
