Draft Constitution of the EU: changes on security matters

(Revised in the light of the final decisions of the Inter-governmental Conference.)

OBJECTIVES OF THE UNION: Article I-5.2: "The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives." The only relevant objective listed in the Constitution's section "The Union's objectives" (Article I-3) are peace and security in the wider world, but Article III-292 refers to preventing conflicts as an objective. And Article III-293 gives the European Council (the heads of government) the right to set further objectives on the basis of Article III-292. Article I-54 may also be relevant: "The Union shall provide itself with the means necessary to attain its objectives and carry through its policies."

FLEXIBILITY CLAUSE: Article I-18.1: "If action by the Union should prove necessary within the framework of the policies defined in Part III [which includes the common security policy], to attain one of the objectives set out in the Constitution, and the Constitution has not provided the necessary powers, the Council of Ministers, acting unanimously on a proposal from the European Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures." In other words, no national ratification is necessary, though national parliaments have to be notified that the matter is under discussion.

Article I-40.4: "The common foreign and security policy shall be put into effect by the Union Minister for Foreign Affairs and by the Member States, using national and Union resources." This means that the Irish Government is obliged to use its resources to implement any security policy decisions made from time to time. These decisions will have been made unanimously or by qualified majority if the European Council (the heads of government) unanimously agreed to this (see Article III-300.3). The very existence of the Union Minister for Foreign Affairs will serve to diminish national freedom of action.

Article I-40.5: "Before undertaking any action on the international scene or any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council." Taken literally, this means no foreign policy initiatives at all: will small countries be expected to abide by it? Big countries hardly will.

Article I-41.1: "The common foreign and security policy ... shall provide the Union with an an operational capacity drawing on civil and military assets."

COMMON DEFENCE: Article I-41.2: "The common security and defence policy shall
include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides." This differs from Article I-16.1, which refers to "the progressive framing of a common defence policy that might lead to a common defence," and to the existing treaties which use the word "might" three times and not the word "will". The requirement for national ratification remains: under the Nice Treaty adoption a constitutional referendum in Ireland would be necessary, but the requirement could be dropped when the Government frames the constitutional amendment to adopt the
European Constitution.

Article I-41.3: "Member States shall undertake progressively to improve their military capabilities." This might mean spending more money or it might mean increasing productivity in some way. And it does not say they have to do it, only that they have to promise to do it. But it's hardly a step to a more peaceful world, at any rate.

Article I-41.5: "The Council may entrust the execution of a [security or defence] task, within the Union framework, to a group of Member States" who, under Article III-310, will agree among themselves on how to manage it.

STRUCTURED CO-OPERATION: The Draft Constitution no longer forbids enhanced
cooperation (by a group of states) in the military or defence area, and introduces "structured cooperation" in this area, which is much the same thing. Article I-41.6 limits structured cooperation to countries "whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions". A protocol governing this specifies that these commitments will include making combat units available for tasks under Article III-309 (the expanded Petersberg tasks, see below). Other EU countries will be able to join later only if the existing members agree (unlike other forms of enhanced co-operation, which any EU member can join at any time).

MUTUAL DEFENCE: Article I-41.7 lays down 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. This shall not prejudice the specific character of the security and defence policy of certain Member States." This seems to be the definitive abandonment of Irish neutrality, and the last sentence, which is EU code for Irish neutrality, cannot be seen as anything other than a face-saver which allows the Irish Government to claim that neutrality is recognised while effectively abandoning it by accepting a mutual defence commitment. (Article 51 of the UN charter is the one allowing "individual or collective self-defense ... until the Security Council has taken measures".) The obligation is as severe as in the WEU treaty: "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." (In fact, it is more severe, since under the WEU treaty an attack outside Europe, e.g. on the French overseas departments, does not trigger the obligation.) The NATO treaty does not require assistance by all the means available: "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."

SOLIDARITY CLAUSE: Article I-43.1: "The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources 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 any terrorist attack;
- assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack..."
This is highly confused. If a Member State has been the object of a terrorist attack (first sentence of article) how then can the terrorist threat be prevented (first line of (a)? And one would like an idea of what instruments might be used. In Article III-329.1 there is a further provision that "the other Member States shall assist it [the attacked state] at the request of its political authorities."

IMPLEMENTATION OF FOREIGN POLICY DECISIONS: Article III-300.2: The implementation of European Council (heads of government) decisions continues to be by qualified majority. One country can insist on a reference back to the European Council, only for "vital" reasons of national policy, not just "important" reasons as at present.

PASSERELLE CLAUSE: Article III-300.3 and .4: The European Council may decide that the Council of Ministers can act by a qualified majority for any item of foreign policy, except those having military or defence implications.

DEFENCE POLICY TASKS: Article III-309.1: The list of items on which common security and defence policy can operate is extended from "humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking" to include also joint disarmament operations, military advice and assistance tasks, conflict prevention, post-conflict stabilisation, and "supporting third countries in combating terrorism in their territories". On the other hand, there is a new statement that all of these can be done by civilian or military means: there is no mention of civilian means in the existing treaties.

NEW AGENCY: Article III-311: A European Defence Agency is to be established in the field of development of defence capabilities, research, acquistiion and armament. Membership is optional. However, this Agency is being established anyway under the existing treaties.

Article III-376: The Court of Justice has no jurisdiction in the hard details of foreign and security policy matters. Member countries can be suspended from the European Union only for reasons to do with democracy, human rights etc. So there seems no way of interpreting or enforcing most of the provisions on foreign and security policy. However, the exemption from foreign and security policy matters does not cover Articles I-5.2 (objectives), I-18.1 (flexibility), I-54.1 (means to attain objectives), III-292 (objectives of foreign policy), or III-329.1 (solidarity), in other words the Court will be interpreting the meaning of these.

John Goodwillie, 26 Oct. 2004

Text used: cg00087-re01.en04.pdf (13 Oct. 2004) - downloadable from http://ue.eu.int/cms3_applications/Applications/igc/doc_register.asp?lang=EN&cmsid=576
click on "13 Oct. 2004"


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