A few more observations about France’s invocation of the Lisbon Treaty’s mutual defense clause

The European Council on Foreign Relations (ECFR) has a useful “explainer” on Article 42.7 and the reasons why France invoked it, which can be found here.

To my mind, the section at the end of the ECFR’s article, which is entitled “How have other member states [of the EU] responded?,” highlights a point made in my previous post about the disconnect between the security needs and obligations of the EU member states on the one hand, and the EU’s institutional and hard power capabilities on the other hand.

There is, however, one point made in the ECFR article that warrants close attention, and which I was unaware of when I wrote my earlier post.

Before focusing on that point, however, I should probably quote the entirety of Article 42.7, which 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. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

Section 2 of the ECFR piece is entitled “What does [Article 42.7] require member states to do?” and begins as follows:

At the simplest level, member states are required to provide aid and assistance, although the provisions don’t apply equally to all countries. The article contains the provision that it:

‘shall not prejudice the specific character of the security and defence policy of certain Member States.’

This means that countries with long-standing traditions of neutrality, like Ireland and Sweden, are not required to break these.

On the face of it, I don’t believe the “shall not prejudice” clause would be interpreted by most to mean that “countries with long-standing traditions of neutrality” are not bound by the “aid and assistance” requirement. Nonetheless, I don’t doubt that that was how the phrase was meant to be interpreted when the language was drafted. Nor do I doubt that the clause has been interpreted that way, by-and-large, since the Lisbon Treaty came into effect (although it is not entirely clear to me who, exactly, would be doing the interpreting).

There are at least two problems with this interpretation of the “shall not prejudice” clause, however.

First, the phrasing “the specific character of the security and defense policy of certain Member States” is vague, particularly given the use of the term “policy” rather than something more specific like “legal constraints.” There are a lot of things that can be called policies, and a self-serving interpretation of the language might well be: “My policy is not to help you, so I won’t.”

So too is the notion of “long-standing traditions of neutrality” pretty vague. Spain, one should note, was neutral during World War II, and it has been a long time since Spain has declared war on another state. I rather doubt, however, that the assumption is that Spain is unencumbered by the “aid and assistance” obligation in Article 42.7.

Moreover, my understanding is that, as part and parcel of the debate over NATO accession, at least some Swedish and Finnish officials have been arguing that Article 42.7 means that neither country is really “neutral” anymore.

At any rate, I seriously doubt that the obligations mandated by Article 42.7 are clear to most EU governments, and I suspect that there is even less consensus about which countries are exempt from the “aid and assistance” requirement. Both issues are doubtless going to become more important now that Paris has invoked the clause.

That brings me to the second problem, which is the implied asymmetry in the interpretation of the “shall not prejudice” clause laid out in the ECFR brief.

Again, my understanding is that Swedish and Finnish officials have been suggesting that  their respective countries would have the right to invoke Article 42.7 if they were attacked by, well, Russia. If so, it is hard to believe that at least some EU member states – say, Poland and Estonia – would find it acceptable that they are bound under Article 42.7 to provide “aid and assistance by all means in their power” to non-NATO members Sweden or Finland, but that Sweden and Finland have no such obligations to Poland or Estonia.


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