European security and defence in the EU Constitutional Treaty

Journal of Conflict and Security Law

Volumn 10, Issue 2, 2005, Pages 187-207

  Naert, Frederik ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

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[No Author keywords available]

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EID: 27644499229     PISSN: 14677954     EISSN: None     Source Type: Journal    
DOI: 10.1093/jcsl/kri014     Document Type: Article

References (90)

1. Rome, 29 October 2004, Official Journal C 310, 16 December 2004. See section 2, for the origin and status of this treaty. The Official Journal (OJ) can be consulted online at . All internet addresses cited in this contribution were active on 20 April 2005.
2. See generally
3. N. Gnesotto (ed.), EU Security and Defence Policy. The First Five Years (1999-2004)/La politique de sécurité et de défense de l'UE. Les cinq premières années (1999-2004) (2004), available at
4. A. Dumoulin, R. Mathieu & G. Sarlet, La Politique Européenne de Sécurité et de Défense. De l'opératoire à l'identitaire (2003)
5. S. Duke, The EU and Crisis Management. Development and Prospects (2002)
6. L.N. Pnevmaticou, Aspectes juridiques de la politique européenne de sécurité et de défense (2001) Occasional Paper No. 31
7. K. von Wogau (ed.), The Path to European Defence (2004)
8. R.A. Wessel, 'The EU as a Black Widow: Devouring the WEU to Give Birth to a European Security and Defence Policy', in V. Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (2001) 405-434
9. and J. Wouters & F. Naert, 'Europese defensie in de NAVO en de Europese Unie: Eenheid en complementariteit', (2002) 31 Vrede en Veiligheid 205-224, available at .
10. For a collection of the main relevant documents, see Chaillot Papers Nos. 47, 51, 57 and 67, available at .
11. Treaty on European Union, Maastricht, 7 February 1992, as last amended by the Treaty of Nice amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Nice, 26 February 2001 (entered into force on 1 February 2003), published in consolidated version in OJ C 325, 24 December 2002.
12. See generally V. Kronenberger & J. Wouters (eds.), The European Union and Conflict Prevention. Policy and Legal Aspects (2004).
13. See .
14. OJ C 169, 18 July 2003.
15. Treaty Establishing the European Economic Community, 25 March 1957, as repeatedly amended (most recently by the Treaty of Nice, fn. 3), and renamed Treaty Establishing the European Community. The consolidated version as currently in force is published in OJ C 325, 24 December 2002.
16. See article 48 of the EU Treaty.
17. The text of the agreement was contained in documents CIG 81/04 juncto CIG 85/04 and CIG 50/03 with addenda and corrigenda. All IGC documents can be found at .
18. OJ C 310, 16 December 2004. See also EU documents CIG 87/2/04 REV2 (the Constitution itself), CIG 87/04 ADD1 REV1 (the protocols) and CIG ADD2 REV2 (the declarations), all available at .
19. See articles IV-438(1) and I-7 of the EU Constitution.
20. See articles 2 and especially 11 of the EU Treaty.
21. E.g. in the French ('conduira' and 'peut conduire' respectively), Dutch ('zal leiden' and 'kan leiden' respectively) and German ('führt' and 'führen kann' respectively) versions.
22. Compare J. Howorth, 'The European Draft Constitutional Treaty and the Future of the European Defence Initiative', (2004) 9 European Foreign Affairs Review 493-494, who describes the formulation in article I-41(2) as 'considerably stronger than the wishy-washy wording in article 17 of the [EU Treaty]' but who does not discuss the discrepancy with article I-16.
23. See para. 4 of the Declaration of the European Council (Annex IV to the Presidency Conclusions of this European Council of 21-22 June 2002, which was a response to the National Declaration by Ireland, id., Annex III): 'The European Council acknowledges that the Treaty on European Union does not impose any binding mutual defence commitments. Nor does the development of the Union's capacity to conduct humanitarian and crisis management tasks involve the establishment of a European army'. All European Council Presidency Conclusions since June 1993 are available at .
24. See article V of the Treaty of Economic, Social and Cultural Collaboration and Collective Self-Defence, Brussels, 17 March 1948, as amended by the Protocol Modifying and Completing the Brussels Treaty, Paris, 23 October 1954, consolidated version available at : 'If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power'.
25. North Atlantic Treaty, 4 April 1949, Washington D.C., available at , article V: 'The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, 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, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security'.
26. In this sense Howorth, op. cit., fn. 14, 495-496, who, in respect of article I-41(2) generally, discerns a 'recognition that, in the event of attack against a Member State, the others will do what they feel they can (or wish to) do to help out'. However, in view of the textual obligation to provide aid and assistance 'by all the means in their power' such a general freedom of response does not seem correct.
27. See document CIG 62/03 DELEG 30,5 December 2003.
28. See Foreign and Commonwealth Office, White Paper on the Treaty Establishing a Constitution for Europe, September 2004, Cm 6309, available at http://www.fco.gov.uk/Files/kfile/ White%20Paper_Treaty%20establishing%20a%20Constitution%20for%20Europe.pdf
29. Only the four neutral EU Member States and Malta and Cyprus are not Members of NATO.
30. An implementation of a collective self-defence obligation only seems sensible if all, or at least most (see France's position in NATO) of the States bound by this obligation participate in it.
31. A body which already exists and was given a permanent basis by Council Decision 2001/78/CFSP of 22 January 2001 setting up the Political and Security Committee, OJ L 27, 30 January 2001, 1-3. See also article 25 of the EU Treaty. It is often referred to as 'COPS' (i.e. its French acronym).
32. See article II1-307(2).
33. Protocol on article I-41(2) of the Constitution.
34. See WEU, Council of Ministers, Marseille Declaration, 13 November 2000, and WEU, WEU Today, both available at .
35. See article IV modified WEU Treaty (fn. 16): 'Recognising the undesirability of duplicating the military staffs of NATO, the Council and its Agency will rely on the appropriate Military Authorities of NATO for information and advice on military matters'.
36. All the more so, since WEU full membership (only full Members are bound by the mutual defence clause) has not expanded in parallel with the expansion of EU and NATO membership: According to a statement on the WEU website 'Following a decision taken on 14 June 2001, the Secretary-General stated during the 1352nd meeting of the Council of Western European Union on 28 June 2001 that, with regard to the period from 1 January 2002, the Member States deemed it unnecessary, in present and foreseeable circumstances, to make any formal change to the statuses of non-full members', available at . One might have expected States that have acceded to both the EU and NATO to become full members of WEU.
37. See, also fn. 30 regarding peace enforcement. For a discussion of the scope of the present and future EU competence in the military field,
38. see M. Ortega, 'Beyond Petersberg: Missions for the EU Military Forces', in Gnesotto (ed.), op. cit., fn. 2, 73-88.
39. There has been some discussion on whether peace enforcement is covered by article 17 of the EU Treaty. See F. Pagani, 'A New Gear in the CFSP Machinery: Integration of the Petersberg Tasks in the Treaty on European Union', (1998) 9 European Journal of International Law 741-742 and UK House of Commons, Select Committee on Defence, Eighth Report, 11 May 2000, available at , section 42.
40. In my view, this has always been the case: See, with further references, Wouters & Naert, fn. 2, 211 n.41,
41. and my review of S. Duke, The EU and Crisis Management (2002), 9 Maastricht Journal of European and Comparative Law 311.
42. I.e. mainly the Military Committee and Military Staff, which were both given a permanent basis by Council decisions of 22 January 2001 (see Council Decision 2001/79/CFSP of 22 January 2001 setting up the Military Committee of the European Union, OJ L 27, 30 January 2001, 4-6; and Council Decision 2001/80/CFSP of 22 January 2001 on the establishment of the Military Staff of the European Union, OJ L 27, 30 January 2001, 7-11) and the Committee for civilian aspects of crisis management (see Council Decision 2000/354/CFSP of 22 May 2000 setting up a Committee for civilian aspects of crisis management, OJ L 127, 27 May 2000, 1).
43. An overlap which is possible, in particular in the light of recent tendencies to accept that an armed attack triggering the right of self-defence may originate from non-State actors, although it must be noted that the International Court of Justice rejected this view in its Advisory Opinion of 9 July 2004 on the Legal consequences of the construction of a wall in the occupied Palestinian territory, available at , see especially §139.
44. See on this F. Naert & J. Wouters, 'Shockwaves through International Law after 11 September: Finding the Right Responses to the Challenges of International Terrorism' in C. Fijnaut, J. Wouters & F. Naert (eds.), Legal Instruments in the Fight Against International Terrorism. A Transatlantic Dialogue (2004) 427-470, available at ,
45. and F. Naert, 'The Impact of the Fight Against International Terrorism on the Ius ad Bellum after "11 September"', forthcoming in 43 The Military Law and the Law of War Review/Revue de Droit Militaire et de Droit de la Guerre (2004), also available as Institute for International Law, Working Paper No. 68, available at .
46. A Secure Europe In A Better World - The European Security Strategy, approved by the European Council held in Brussels on 12 December 2003, available at .
47. See on this document A. Toje, 'The 2003 European Union Security Strategy: A Critical Appraisal', (2005) 10 European Foreign Affairs Review 117-133
48. S. Duke, 'The European Security Strategy in a Comparative Framework: Does it Make for Secure Alliances in a Better World?', (2004) 9 European Foreign Affairs Review 459-481
49. and S. Biscop, 'The European Security Strategy Implementing a Distinctive Approach to Security', (March 2004) 82 Sécurité & Stratégie, available at .
50. These decisions are the equivalent of the present joint actions covered by article 14 of the EU Treaty.
51. These decisions are the equivalent of the present common positions covered by article 15 of the EU Treaty.
52. See articles 13-15 of the EU Treaty.
53. See article 23(2) of the EU Treaty. On decision-making in the CFSP under the EU Treaty, see G. Müller-Brandeck-Bocquet, 'The New CFSP and ESDP Decision-Making System of the European Union' (2002) 7 European Foreign Affairs Review 257-282.
54. This exception is formulated slightly stricter than its present equivalent in article 23(2) of the EU Treaty, which only requires 'important and stated reasons of national policy' (emphasis added).
55. See K. Lenaerts, 'Cooperation in the Second and Third Pillars of the European Union', text presented at a colloquium on Models of Cooperation Within an Enlarged European Union, Brussels, 28 January 2003, on file with the author, II.B, 13.
56. At present, the defence ministers meet either informally or in the framework of the General Affairs and External Relations Council, see .
57. Article 5 of the Protocol on the position of Denmark.
58. See on this instrument article I-33(1).
59. See fns 34 and 35 and accompanying text. On European decisions, see article I-33(1).
60. See generally J. Wouters, 'The Union Minister for Foreign Affairs: Europe's Single Voice or Trojan Horse?', forthcoming in Liber Amicorum Alfred E. Kellermann - The EU: An Ongoing Process of Integration (2004), also available at .
61. See also A. Missiroli, 'Mind the Steps: the Constitutional Treaty and Beyond', in Gnesotto (ed.), op. cit., fn. 2, 146-147.
62. See mainly articles 18 and 26 of the EU Treaty.
63. See e.g. Wouters, fn. 44.
64. See J. Wouters & F. Naert, Linking Global and Regional Organizations: the Case of the United Nations and the European Union (April 2004) 3 n.9, available at .
65. See article 25 of the EU Treaty.
66. It is not specifically authorised and although article 27 B of the EU Treaty permits enhanced cooperation in CFSP (only) for the implementation of a joint action or common position, it excludes such cooperation for matters having military or defence implications.
67. For instance, Ireland did not send troops for operation Concordia and only 6 Member States sent troops to operation Artemis: See the information on ESDP operations available on the Council's website at
68. and G. Lindstrom, 'On the Ground: ESDP Operations', in Gnesotto (ed.), op. cit., fn. 2, 111-129.
69. Compare T. Jaeger, 'Enhanced Cooperation in the Treaty of Nice and Flexibility in the Common Foreign and Security Policy' (2002) 7 European Foreign Affairs Review 307.
70. See article 5 of the Protocol on the position of Denmark: 'Denmark shall not be obliged [...] to make military capabilities available to the Union'.
71. See Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency, OJ L 245, 17 July 2004, 17-28.
72. On the establishment of this Agency, see B. Schmitt, 'European Capabilities: How Many Divisions?' in Gnesotto (ed.), op. cit., fn. 2, 100-101,
73. and Howorth, op. cit., fn. 14, 496-499.
74. See also the 17th consideration of the preamble and articles 20-23 of Council Joint Action 2004/551/CFSP, fn. 52.
75. The battle group concept has already been adopted under the present EU Treaty: See e.g. the Presidency Report on ESDP endorsed by the European Council of 17 December 2004, paras 12-17, available at .
76. In the draft adopted by the Convention (fn. 6), the opposite was explicitly stipulated: See article III-213(5) and F. Dehousse, W. Coussens & G. Grevi, Integrating Europe. Multiple speeds - One Direction? (April 2004) EPC Working Paper No. 9, 12 available at . That provision was, however, deleted in the course of the ICG.
77. It should be noted that it is no longer required in this provision that this decision be taken by unanimity, in contrast to the present article 28(3) of the EU Treaty.
78. See Council Decision 2004/197/CFSP of 23 February 2004 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications, OJ L 63, 28 February 2004, 68-82.
79. The Athena Decision has already been amended by Council Decision 2004/ 925/EC of 22 December 2004, OJ L 395, 31 December 2004, 68 and by Council Decision 2005/68/CFSP of 24 January 2005, OJ L 27, 29 January 2005, 59.
80. On these financing arrangements, see D. Scannell, 'Financing ESDP Military Operations', (2004) 9 European Foreign Affairs Review 529-549.
81. It may be noted that there is at present a rapid-reaction mechanism 'designed to allow the Community to respond in a rapid, efficient and flexible manner, to situations of urgency or crisis or to the emergence of crisis', see Council Regulation (EC) No 381/2001, 26 February 2001, creating a rapid-reaction mechanism, OJ L 57, 27 February 2001, 5-9. However, this mechanism only deals with European Community competences, and it is the Commission who decides on its use.
82. Article 5 of the Protocol on the position of Denmark.
83. Regulated in articles I-44 and III-416 to III-423.
84. The latter seems superfluous since it is only mentioned in article III-422(2) for European laws and framework laws, which cannot be adopted in the area of CFSP (see article I-40(6) and section 4).
85. See article 27 B of the EU Treaty and fn. 49.
86. Article 17(4) of the EU Treaty.
87. See also generally Howorth, op. cit., fn. 14, 483-508.
88. One may wonder whether the European Defence Agency is not in fact a case of enhanced cooperation. However, if it is, it would appear to have been established in violation of article 27 B of the EU Treaty, since this provision prohibits enhanced cooperation for matters having military or defence implications.
89. On EU-NATO cooperation, see generally J.-Y. Haine, 'ESDP and NATO', in Gnesotto (ed.), op. cit., fn. 2, 131-143, and available at and .
90. On the EU-UN relationship, including in the field of international peace and security, see Wouters & Naert, loc. cit., fn. 47.