The art of commitments: NATO, the EU, and the interplay between law and politics within Europe’s collective defence architecture

ABSTRACT

Law and politics are the two constituent parts of a collective defence architecture. In Europe, such an architecture currently rests on a series of legal commitments: NATO’s mutual defence clause (Art.5 of the North Atlantic Treaty), but also the EU mutual assistance clause (Art.42.7 TEU) and the EU solidarity clause (Art.222 TFEU). Many asymmetries exist, however, between those legal clauses: they are often overlapping but not always identical with respect to their respective conditions of activation, territorial scopes, binding strengths, and modalities of implementation. Because of those legal asymmetries as well as prevailing political realities, there are many obstacles in fact to a clear-cut division of labour within Europe’s collective defence architecture between NATO and the EU. In Europe, collective defence should thus not be apprehended as a uniform task but rather as the art of balancing multiple legal and political constrains, come what may.

KEYWORDS:

• NATO Article 5
• EU mutual assistance clause
• EU solidarity clause
• collective defence
• law and politics

Acknowledgments

I am grateful to the participants of the sixth edition of the European Union in International Affairs (EUIA) Conference, Brussels, and of the third BISA European Security Working Group, Newcastle, for their helpful comments and suggestions.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Elie Perot is a PhD Researcher at the Institute for European Studies (IES), Vrije Universiteit Brussel (VUB).

ORCID

Elie Perot http://orcid.org/0000-0002-7250-6452

Notes

1. By using this expression, I follow the practice established by some EU documents such as the 2016 European Global Strategy (EUGS) (High Representative 2016). But this clause is sometimes equally designated as the “EU mutual defence clause”, for instance in the document published by the Council following France’s invocation of Article 42.7 TEU (Council of the European Union 2015).

2. It could be argued that it would have been preferable to use the broader expression “collective security”, rather than “collective defence”, in order to more easily include the three different clauses, and especially the EU solidarity clause, under the same umbrella. Indeed, as shown later in the paper, Article 222 TFEU does not inscribe itself strictly speaking in the logic of collective defence as traditionally understood in international law. But, for one thing, using the term “collective security” would be quite misleading as it has already acquired a very definite and different meaning in international relations, designating a system in which nations would maintain their security through a concerted action against a threat arising from within the system, not outside. For the other, EU institutions have themselves legitimised such a pairing of Art.222 TFEU with the notion of collective defence: in EU documents, the use of the EU solidarity clause is often discussed in parallel with Art.42.7 TEU and even Art.5 NATO, for instance in the 2016 EU Global Strategy or in the framework of the EU policy against hybrid threats, as is also shown later in this paper (European Union 2016, High Representative 2016).

3. I would like to thank one of the two anonymous reviewers for bringing this point to my attention.

4. With the Lisbon Treaty, Art.222 TFEU regroups in one article what had been separated into two articles within the TCE, namely its Art.I-43 and Art.III-329.

5. It should be noted that reference to and coherence with the UN Charter was particularly important during the negotiations of the Washington Treaty, as exemplified for instance by the terms of the Vandenberg Resolution passed by the US Senate. But it was also important that, among the articles governing the use of armed force under the UN charter (Chapter VII), reference would be made exclusively to Art.51 in order to avoid any obligation of involving of the UN Security Council and therefore any risk of a Soviet veto (Kaplan 2007, pp. 95, 217–220).

6. On this point, the 2017 directive refers to certain articles and paragraphs of a directive of 2013 to precise the types of serious cyberattacks that can constitute terrorist offences (European Union 2013b).

7. Inapplicable since 1962.

8. In fact, the territorial applicability of the NATO Treaty was explicitly designed so that it would exclude most of the colonial holdings of European powers – with the exception of French Algeria which was itself a sine qua non for Paris. European colonialism was poorly considered by the American public opinion which, moreover, already had some serious reservations concerning a military alliance with Europe (Kaplan 2007, p. 221).

9. The possession of the Azores islands, situated in the middle of the Atlantic and which could therefore serve as an extremely useful basing facility for bringing US reinforcements to Europe, was a key reason for why Portugal was allowed to be a founding member of NATO, despite being under the authoritarian rule of Salazar (Kaplan 2007, pp. 123, 175–176, 210). Today, the Azores still host the strategically important NATO Lajes Field Air Base.

10. A wording which still reflects the original compromise found by the negotiators of the Washington Treaty who, for one thing, had to convince Western Europeans of the strength of the American commitment and, for the other, had to assuage fears in the US Congress of an “entangling” military alliance (Sloan 2016, pp. 22–23).

11. For more details on the IPCR arrangements see: Minard (2015).

12. In 2015, François Hollande in his speech laying out the French deterrent strategy said: “By participating in the European project from its outset, France has, with its partners, built a community of destiny. The existence of a French nuclear deterrent has made a strong, essential contribution to Europe. Moreover, France has real, heartfelt solidarity with its European partners. So who could believe that an aggression threatening Europe’s survival would have no consequence? / That is why our nuclear deterrence goes hand-in-hand with the constant strengthening of the Europe of Defence. But it is our own. We decide, we assess our vital interests on our own” (Hollande 2015a).

13. Since the Ottawa declaration of 1974, NATO allies have continuously recognised the contributions made by both British and French nuclear forces to the overall deterrence posture of the Alliance (NATO 1974). France, however, still does not participate to NATO’s Nuclear Planning Group.