On Tuesday 17 November 2015, France invoked Article 42.7 of the Treaty of the European Union (the “Lisbon Treaty”). Shortly thereafter, the French action was unanimously approved by the EU defense ministers. Thus, the EU demonstrated that it stood firmly behind the French and ready to move into action after the multiple terrorist attacks in Paris on Friday 13 November.
But what is Article 42.7 and what does its invocation mean?
Article 42.7 is the mutual defense assistance clause of the Lisbon Treaty and reads as follows:
“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.”
In order to take into account the various different security and defense policies the EU member states have adopted, the text reads further:
“This shall not prejudice the specific character of the security and defense policy of certain Member States.”
Then it continues:
“Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organization, which, for those States which are members of it, remains the foundation of their collective defense and the forum of its implementation.”
In other words, Article 42.7 allows the EU member states, such as Finland, Ireland or Sweden, hold on to their various shades of military nonalignment, while it also focuses attention to the fact that those EU member states who are members of NATO – right now 22 out of the 28 members – implement their collective security and defense policies through NATO.
So, if this is the case, why did France choose to refer to the EU treaty Article 42.7 and not to invoke NATO’s famous Article 5?
For one thing, France seems to have wanted to keep the response within the European family.
First, the invocation of 42.7 can be seen as a test on how the EU’s mutual defense clause actually works. It was the very first time ever it was invoked, and it will be significant to the future of European security and defense ambitions to see how the other member states answer the French call in concrete ways. The first burst of solidarity has been encouraging, but will the support last? That will be seen soon, in the next few weeks. The year 2015 has been a tough year for European unity. It has been put under great strain from what has happened in, for example, Greece, Ukraine and Syria. Now there will be more pressure through the scary terrorist threats and actions from the Islamic State (IS). How will the European Union cope with it all?
Second, Washington had apparently signaled its willingness to support France in invoking NATO’s Article 5, if France had sought it. But by invoking Article 5, France would have called for NATO’s organizational response rather than for member states’ individual intergovernmental action that is the essence of Article 42.7. By galvanizing European support through Article 42.7, France will be able to be in the sole control of the talks it will have with the other EU member states on the kind and level of support and assistance it needs.
Third, in combatting IS, France is looking for putting together a coalition of powers with not only military means at their disposal. Rather, it sees a wide coalition of the EU members together with Russia and Arab partners working together to defeat IS, and involving NATO through Article 5 would not perhaps have been the best thing to do to build up such a coalition.
Finally, last but by no means least, France is looking for an opportunity to have its cake and eat it, too. By not invoking NATO, France has done nothing to prevent it to turn to NATO at a later date, if the situation so warrants. In any case, the United States, the primus inter pares of all NATO members seems to be supporting the present French policy. It is quite conceivable that Paris might still turn to NATO, if it needs a strong military component for its Middle East policy.
It is also highly interesting to note that of the tools in the EU toolbox France could have selected, it chose to invoke Article 42.7, instead of Article 222 of the Lisbon Treaty, especially since that Article is the so-called “solidarity clause” in that Treaty. The text of Article 222 states, inter alia, that:
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 mobilize 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.
b) Assist a Member State in its territory, at the request of its political authorities in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.
3. “The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 31.1 of the Treaty on European Union where this decision has defense implications. The European Parliament shall be informed.
For the purposes of this paragraph and without prejudice to Article 240, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defense policy and the Committee referred to in Article 71; the two committees shall, if necessary, submit joint opinions.
Just as was with the case of not involving NATO, the French seem to have wanted to avoid all unnecessary bureaucracy. As is apparent from the text above, invocation of Article 222 of the Union Treaty would involve the main EU institutions, including the Council, the Commission, the High Representative, and the Political and Security Committee. Even the Parliament would have to be informed. The EU institutions were apparently judged by France to be potentially too cumbersome, and that is why it opted for Article 42.7 and less bureaucratic intergovernmental action it implies.
It is not totally clear at this writing what kind of support and assistance the French want. It will become clear when they have carried out their bilateral discussions with each of the EU member states. However, it is fair to expect that they will be looking for any military support the other EU members could provide them in their campaign against the IS in Syria. It is clear that no member state, including France, has a stomach for sending significant numbers of land forces to Syria, but some of the countries might be able to provide the French air force defense materiel, missiles and bombs, fuel and lubricants, as well as other logistics support it needs. Intelligence cooperation and supporting cyber operations would also be useful for the French armed forces deployed in Syria. The lessons of the Libyan air campaign should be utilized to the hilt.
Other EU members with less direct military assistance to offer could relieve the French forces from their operations in Africa, where France has thousands of soldiers engaged in places like Mali and the Central African Republic. In fact, Ireland has already indicated that it will send soldiers to Africa to help ease the burden on France and relieve French soldiers to fight the IS. There are also about 10,000 French troops in France itself used to protect the country’s sensitive sites. Some of those troops could be relieved by other EU countries’ police forces, if the political will is there.
All the EU countries in the Baltic Sea region have responded positively to the French request, and are now waiting for more specific bilateral discussions with France. Finland will have to revise its legislation that will enable it to provide military assistance outside of its national borders, but there is a wide consensus amongst the leading politicians in Helsinki that it will be done as soon as possible.
With the gathering consensus around Article 42.7 in the formally militarily nonaligned countries, Finland and Sweden, one of the unintended results of the terrible blood path in Paris could be that these countries would start moving towards a position of accepting collective defense, be that in the form of EU’s Article 42.7 or NATO’s Article 5.