Tendencies of the Development of Legal Grounds of the European Union Common Defence Policy in a Draft Constitution for Europe
##plugins.themes.bootstrap3.article.main##
Abstract
The article deals with the development of legal grounds of the European Union common defence policy in a draft Constitution for Europe. In order to identify trends in the legal regulation of the EU common defence policy, the author compares respective provisions of the draft European Constitution and the Treaty on European Union.
The key Art. I-40 of the draft Constitution establishing specific provisions for implementing the common security and defence policy provides for significant changes, in comparison with the respective Art. 17 of the Treaty on European Union. Apart from that, the specific provisions of Art. I-40 of the European Constitution are developed by the more detailed provisions on the common security and defence policy which are contained in Section 2, Chapter II, Title V of Part III of the Constitution (from Art. III-210 to Art. III-214 thereof). Most of these provisions are new. However, they are based on the same principles, as stated in Art. 17(1) of the Treaty on European Union and Art. I-11(4), I-15(1) and I-40(1, 2) of the draft Constitution. Namely, under the Constitution, the common defence policy will remain an integral part of the common foreign and security policy and will continue to provide operational capabilities for the Union’s external actions in a specific situation when diplomatic and economic actions will be insufficient in order to achieve the common foreign and security policy goals. As previously, the main aim of the common defence policy will be to increase civilian and military capabilities assigned for the implementation of the so-called Petersberg tasks (humanitarian and rescue, peacekeeping, crisis management and peacemaking operations). The draft Constitution also preserves sufficient legal guarantees to ensure compatibility with the activities of the NATO and corresponding legal obligations of a number of Member States. On the other hand, some new provisions of the Constitution can be assessed as the reflection of efforts of some EU countries to make the common defence policy more autonomous with respect to the NATO and the USA. Some of them may even raise a danger of duplication of the NATO’s activities.
With regard to implementation of the Petersberg tasks, the provisions of the Constitution remains generally unchanged in comparison with those of the Treaty on European Union, except a few provisions updating the Petersberg tasks and strengthening the institutional framework of the common defence policy. The new missions, such as joint disarmament operations, military advice and assistance tasks, conflict prevention and post-conflict stabilisation, were added to the range of Petersberg missions, in order to respond properly to the emerging new threats to the European security. In line with that, the solidarity clause is added by Art. I-42 which obliges the Member States to mobilise all instruments at their disposal in order to prevent terrorist threats and assist each other in case of disasters.
The next novelty is that, in addition to the existent institutions of the common defence policy, the draft Constitution provides for the establishment of the European Armaments, Research and Military Capabilities Agency that will be subordinate to the Council of Ministers. Apart from the cooperation in the field of armaments, the Agency will also be responsible for supervision of the implementation by the Member States of their military capability commitments. On the one hand, that could significantly improve the fulfilment of the Union’s defence policy objectives. On the other hand, there is a danger that the Agency can serve as one of the means for domination of certain Member States and, as a consequence, it can become a catalyst of different-speed and divided Europe in the field of defence policy.
The subsequent novelty provided for in the draft Constitution is the possibility of the structured defence and military cooperation between certain Member States, which might be treated as a specific kind of enhanced cooperation. Despite of possible advantages of increase of the Union’s military capability, this kind of cooperation could also result in a deeper division of Member States rather than a desired unity on the defence policy matters.
The similar danger of division of the Member States and even undesirable competition with the NATO may be concealed in the last significant novelty that provides for the closer cooperation on mutual defence. In accordance with Art. I-40(7) and III-214, the Member States will be able to assume mutual defence obligations identical to those established by Art. 5 of the North Atlantic Treaty. Since only those Member States which also belong to NATO (besides, not all of them) have expressed their will to assume mutual defence commitment, the logical question arises what is the rationale for the mutual defence clause. From practical point of view, this clause is meaningless if the Union is not going to provide alternative security guarantees.
The above mentioned critical remarks do not mean that the common defence policy provisions contained in the draft European Constitution should be evaluated negatively. Despite of mentioned ambiguities and concerns, the Constitution marks a further step towards progressive development of the common defence policy. If in accordance with the Constitution the coherence with the NATO is preserved, both the EU and the NATO will benefit from the growing Union’s defence and military capabilities. The next positive outcome of the Constitution is the simplification at a certain degree of the transatlantic and European security structures. Since the European Union is likely to take over all the residual competence of the Western European Union (including common defence, armaments cooperation and the consultative function performed by the WEU Assembly), the latter can be abolished as no longer necessary organisation.
At the end of the article the author briefly examines Lithuanian legislation relevant to the participation in the EU’s common defence policy. The final conclusion is that Lithuanian laws (especially the Law on International Operations, Exercises and Other Military Cooperation Events) creates favourable conditions for the country’s participation in all possible forms of cooperation in the framework of the Union’s common defence policy. However, not all possible tendencies of this policy may correspond to the vital interests of Lithuania’s security and defence.
The key Art. I-40 of the draft Constitution establishing specific provisions for implementing the common security and defence policy provides for significant changes, in comparison with the respective Art. 17 of the Treaty on European Union. Apart from that, the specific provisions of Art. I-40 of the European Constitution are developed by the more detailed provisions on the common security and defence policy which are contained in Section 2, Chapter II, Title V of Part III of the Constitution (from Art. III-210 to Art. III-214 thereof). Most of these provisions are new. However, they are based on the same principles, as stated in Art. 17(1) of the Treaty on European Union and Art. I-11(4), I-15(1) and I-40(1, 2) of the draft Constitution. Namely, under the Constitution, the common defence policy will remain an integral part of the common foreign and security policy and will continue to provide operational capabilities for the Union’s external actions in a specific situation when diplomatic and economic actions will be insufficient in order to achieve the common foreign and security policy goals. As previously, the main aim of the common defence policy will be to increase civilian and military capabilities assigned for the implementation of the so-called Petersberg tasks (humanitarian and rescue, peacekeeping, crisis management and peacemaking operations). The draft Constitution also preserves sufficient legal guarantees to ensure compatibility with the activities of the NATO and corresponding legal obligations of a number of Member States. On the other hand, some new provisions of the Constitution can be assessed as the reflection of efforts of some EU countries to make the common defence policy more autonomous with respect to the NATO and the USA. Some of them may even raise a danger of duplication of the NATO’s activities.
With regard to implementation of the Petersberg tasks, the provisions of the Constitution remains generally unchanged in comparison with those of the Treaty on European Union, except a few provisions updating the Petersberg tasks and strengthening the institutional framework of the common defence policy. The new missions, such as joint disarmament operations, military advice and assistance tasks, conflict prevention and post-conflict stabilisation, were added to the range of Petersberg missions, in order to respond properly to the emerging new threats to the European security. In line with that, the solidarity clause is added by Art. I-42 which obliges the Member States to mobilise all instruments at their disposal in order to prevent terrorist threats and assist each other in case of disasters.
The next novelty is that, in addition to the existent institutions of the common defence policy, the draft Constitution provides for the establishment of the European Armaments, Research and Military Capabilities Agency that will be subordinate to the Council of Ministers. Apart from the cooperation in the field of armaments, the Agency will also be responsible for supervision of the implementation by the Member States of their military capability commitments. On the one hand, that could significantly improve the fulfilment of the Union’s defence policy objectives. On the other hand, there is a danger that the Agency can serve as one of the means for domination of certain Member States and, as a consequence, it can become a catalyst of different-speed and divided Europe in the field of defence policy.
The subsequent novelty provided for in the draft Constitution is the possibility of the structured defence and military cooperation between certain Member States, which might be treated as a specific kind of enhanced cooperation. Despite of possible advantages of increase of the Union’s military capability, this kind of cooperation could also result in a deeper division of Member States rather than a desired unity on the defence policy matters.
The similar danger of division of the Member States and even undesirable competition with the NATO may be concealed in the last significant novelty that provides for the closer cooperation on mutual defence. In accordance with Art. I-40(7) and III-214, the Member States will be able to assume mutual defence obligations identical to those established by Art. 5 of the North Atlantic Treaty. Since only those Member States which also belong to NATO (besides, not all of them) have expressed their will to assume mutual defence commitment, the logical question arises what is the rationale for the mutual defence clause. From practical point of view, this clause is meaningless if the Union is not going to provide alternative security guarantees.
The above mentioned critical remarks do not mean that the common defence policy provisions contained in the draft European Constitution should be evaluated negatively. Despite of mentioned ambiguities and concerns, the Constitution marks a further step towards progressive development of the common defence policy. If in accordance with the Constitution the coherence with the NATO is preserved, both the EU and the NATO will benefit from the growing Union’s defence and military capabilities. The next positive outcome of the Constitution is the simplification at a certain degree of the transatlantic and European security structures. Since the European Union is likely to take over all the residual competence of the Western European Union (including common defence, armaments cooperation and the consultative function performed by the WEU Assembly), the latter can be abolished as no longer necessary organisation.
At the end of the article the author briefly examines Lithuanian legislation relevant to the participation in the EU’s common defence policy. The final conclusion is that Lithuanian laws (especially the Law on International Operations, Exercises and Other Military Cooperation Events) creates favourable conditions for the country’s participation in all possible forms of cooperation in the framework of the Union’s common defence policy. However, not all possible tendencies of this policy may correspond to the vital interests of Lithuania’s security and defence.
##plugins.themes.bootstrap3.article.details##
Section
Articles
Authors contributing to Jurisprudence agree to publish their articles under a Creative Commons Attribution-NoDerivatives 4.0 International Public (CC BY-NC-ND) License, allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors are given credit, and that in the event of reuse or distribution, the terms of this licence are made clear.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
