On the night of the 13 November 2015, a shocking series of organized terrorist attacks occurred in Paris. The Islamic State of Iraq and Syria (ISIS), a fundamentalist Islamist group claimed the responsibility for these attacks. France, asked for assistance and support from other MS by invoking article 42 (7) TUE. The mutual assistance clause was activated for the first time since the entered into force of the Lisbon Treaty. The clause affirms that MS have a responsibility towards a State that is subject to an armed aggression on its territory, and must provide assistance and aid, with all the means at their disposal. Since it has never been used before, a lot of questions arose and a deeper analysis must be provided that will be divided as follows: the scope, implementation and role of the EU institutions invoking article 42 (7) TEU; the differences between the latter and article 222 TFEU or the solidarity clause; and the interplay with norms relating to the international law, specifically the UN Charter and the NATO partnership.
The first objection concerned the modality to activate the article; if the State that has been aggressed should explicitly ask for assistance or if the simple evaluation of the circumstances is sufficient to trigger article 42 (7). The episode of 2015 seemed to reflect more the second view. Secondly, the aggressed State should expect to receive diplomatic or political aid or a more concrete military assistance; the clause mentions aid and assistance but in some very vague terms. Remembering, that the EU is not a military partnership and the MS seem to beneficiate of a certain discretion regarding the aid and the assistance they wish to supply. Thirdly, there could be a unique agreement among all MS concerning the aid and assistance or bilateral agreement can be put in place between the aggressed State and another Member State as has been the case for France. However, this type of arrangement, qualified by the intergovernmental tends to exclude the EU institutions from any decisional process in merit of aid and assistance, since they burden on each single MS.
Another topic of discussion is the reason why France decided to invoke article 42 (7) TUE instead of article 222 TFEU, or solidarity clause. They have different purposes and implementation. The first difference is that the aforementioned article expressly includes the case of a terrorist attack and foresees the intervention and the mobilization not only of the other MS but also of the EU institutions. Some argues that France preferred having full control and negotiate bilateral agreements independently and decided to invoke the mutual assistance clause. Secondly, according to art 222 TFEU, only long term actions on the national territory can be pursued. Art. 42 (7) instead, has an external dimension, meaning that it presents the possibility to act, externally and abroad, a feature that better corresponded to Frances’ plans to eradicate the group behind the attacks, ISIS, established in Iraq and Syria. Thirdly, the mutual assistance clause can include the use of the force, extending the involvement to the UN Security Council.
With regard to UN charter and the NATO Charter others explications must be provided. Article 42 (7) expressly mentions article 51 of the UN charter, concerning the right of self-defence. Interesting to notice is that the article foresees the possibility to the right of self-defence when a territory is aggressed or attacked by another State, but there is no explicit referral to an attack/aggression by a group, including a terrorist group when there is not a State behind. However, according to some authors and the recent events and experiences during the counter fighting in Iraq and Syria, there has been a tendency to extend the individual self-defence clause in response to armed attacks perpetrated by terrorist groups established abroad.
Nonetheless, every time that considerations of applying military actions with the effect on other States, are made, some coordination must be achieved with the UN SC. For this reason, the French government, a few days after the activation of art. 42 (7), proposed a document that was discussed during a meeting of the UNSC and was concluded with the approval of Resolution n. 2249 (2015). The document condemns the terrorist attacks and invites the States to intensify their efforts and use all the necessary measures, within the meaning of international law in the countries under the regime of ISIL, in order to destroy all their military stationing and settlements, and put an end to the terrorist attacks. Differently from the resolution 1368 (2001) approved in the aftermath of the terrorist attack on the twin towers, this resolution did not authorize any form of military intervention, only inviting with a “Calls upon the States” giving a legitimation on the political plan for actions that had already been undertaken by the States unilaterally. In conclusion, it can be affirmed that this resolution did not furnish the legal ground for the latest military operations by the States in the territory of Iraq and Syria.
France could also have appealed to the NATO alliance, the charter made an express provision in article 5, in the case of an armed attack committed on a partner country, it should be considered as an attack to all NATO members, thereby each of them could invoke their right to individual or collective self-defence, according to article 51 UN Charter. The article has been defined as more stringent for including a military response as the primary response; NATO is indeed a military alliance, well-endowed with the capabilities necessary to assure a counter offensive even abroad. Moreover, article 42 (7) clearly states that the MS that are also part of the NATO alliance should refer to the latter as the first source for collective defence. The conclusion here is that article 42 (7) is subordinated to article 5 NATO Charter and cannot be invoked if the last has already been activated by another MS.
One of the reason behind France’s decision to invoke a clause in a EU Treaty, instead of appealing to NATO for assistance, underlined its European approach in order to solve the problem, to sustain the development of a European defence and to make a political choice autonomous from the NATO and so the USA. A few days after the attack, Federica Mogherini, the HR in charge stated: “France has been attacked. Europe as a whole has been attacked. Today France sought the help and assistance of all of Europe. And today Europe, united, responded yes”. These words gave a great deal of think about the itinerary of the CFSP and the CSDP since their beginning. On one side the decision to invoke an article in a EU Treaty should be welcomed as a part of that process of integration in a field, the foreign policy and the defence that is the core of nation state and has fiercely been protected.
But it is important to underline intergovernmental approach of the article, at the expenses of the inclusion of those EU institutions that can actually guaranteed the necessary integration. As we have experienced, the terrorist attacks in Paris were only the beginning, and in this new context, the EU lost an occasion to impose itself as the actor to invoke; contrasting the raising of jihadist terrorists, revealing the threats menacing the core values of the Union and prevent attacks, these are the future challenges we will face in the next years, thereby more integration and coordination in this area should be achieved and the absence of the EU institutions can be surely seen as a failure.
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