EU 
Solidarity
or militarisation? Proposed 'solidarity clause' legislation criticised
for lack of clarity and "encouraging armament"
1.2.13
Proposed EU legislation that would
oblige EU institutions and Member States to provide assistance
to a Member State that is "the object of a terrorist attack
or the victim of a natural or man-made disaster" has been
criticised by MEPs who say that it "encourages armament"
and "paves the way for military interventions within the
EU."
The claim, made by the
MEPs Sabine Lösing and Willy Meyer of the European United
Left/Nordic Green Left group, came in response to a report of
the Parliament's Foreign Affairs Committee in October last year
that urged the Commission and the High Representative of the
EU for Foreign and Security Policy to publish their proposal
for implementation of Article 222 of the Lisbon Treaty - the
solidarity clause - "before the end of 2012." [1]
The solidarity clause
The key provisions of
Article 222 of the Lisbon Treaty say that:
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;
(b) assist a Member
States in its territory, at the request of its political authorities,
in the event of a natural or man-made disaster.
A legislative proposal
issued by the European Commission and the High Representative
of the EU for Foreign and Security Policy just before Christmas
(but only made public on 16 January) sets out arrangements for
implementing the solidarity clause. [2]
If the Council agrees
to the proposal in its current form (it is only necessary for
the European Parliament to be "informed") it would
mean that any Member State that is:
"the object of
an actual or imminent terrorist attack or the victim of a natural
or man-made disaster may invoke the Solidarity Clause if…
it considers that the situations overwhelms its response capacity."
This would oblige EU institutions
to "identify and use all relevant Union instruments that
can best contribute to a response to the crisis, including sector-specific,
operational, policy or financial decisions… as well as military
resources," while Member States, beyond what they would
be obliged to contribute towards the response of EU institutions,
would have to "choose the most appropriate means to comply
with its own solidarity obligation towards another Member State."
The legislation could
have effects beyond Europe's borders. It "applies to disasters
and terrorist attacks within the EU territory, whether on land,
sea or in the air," but it also "applies irrespective
of whether the crisis originates inside or outside the EU"
and applies to "ships (when in international waters) and
airplanes (when in international airspace) or critical infrastructure
(such as off-shore oil and gas installations) under the jurisdiction
of a Member State."
The proposal also foresees
the establishment within the EU of "an integrated threat
and risk assessment process" that "should allow the
European Council to assess the threats facing the Union in order
to enable the Union and its Member States to take effective action."
Compilation of these assessments
would begin in 2015 and be a joint effort of the Commission and
the High Representative, building on "assessments of threats,
hazards and risks currently compiled in various sectors (e.g.
terrorism, organised crime, civil protection, health, environment,
climate change, etc.)."
This would allow the Member
States, the Commission and the High Representative to "assess
the means available through the Union and the Member States to
meet the major threats, identifying possible gaps and the most
efficient and cost effective ways to address those gaps and build
the means of effective solidarity."
Crisis and disaster
One of Lösing's and
Meyer's main criticisms of Article 222 is its lack of clarity
- they argue that it provides "no clear definition of what
falls under [the] solidarity clause," and that it was unclear
if "social unrest/strikes are also considered 'man made
disasters'."
They are unlikely to be
satisfied by the legislative proposal. It offers definitions
of key terms, but Ms Lösing's political advisor, Ota Jaksch,
told Statewatch that they "do not provide any further clarity."
The Commission's explanatory
memorandum says that "the proposal foresees that the EU
should act only in exceptional circumstances and at the request
of the political authorities of a Member State which sees its
own capacities overwhelmed as the result of an actual or imminent
terrorist attack or of a natural or man-made disaster."
In the proposal, 'disaster'
is defined as "any situation, which has or may have an adverse
impact on people, the environment or property," while the
definition of 'terrorist attack' is based on the 2002 Council
Framework Decision on combating terrorism (2002/475/JHA).
New terminology is also
introduced. The term 'crisis' does not appear in Article 222
of the Lisbon Treaty, but in the proposal is defined as "a
serious, unexpected and often dangerous situation, requiring
timely action: a situation that may affect or threaten lives,
environment, critical infrastructure or core societal functions,
may be caused by a natural or man-made disaster or terrorist
attacks."
Repeated references are
also made in the proposal to "threats", but this term
is not defined.
At a meeting of the Council's
Article 36 Committee in October 2011, "delegations agreed
in general that the solidarity clause should only be invoked
in specific exceptional and emergency circumstances… The
general triggering criteria to be defined would have to take
account of the differences in size and capacities of Member States
as well as the nature of the event." [3]
Article 4 of the proposal
deals with "Activation", and says that Member States
that are "the object of an actual or imminent terrorist
attack or the victim of a natural or man-made disaster"
can only invoke the clause if "after having exploited the
possibilities offered by existing means and tools, at national
or Union level, it considers that the situation overwhelms its
response capacity."
"Civil rights
are no longer a priority"
Ms Jaksch argues that
the aim of including the term 'crisis' in the proposal is "quite
clear": it is "a favoured term in EU-language in order
to cover the most possible cases - it is used also in the external
financial instruments in particular the Instrument for Stability…
in order to fund whatever cannot be funded from other EU budgets."
She said that the likelihood
of intervention in one Member State by military or police forces
under the command of EU institutions or other Member States "depends
on the current situation, it is as high as the degree of social
unrest or the 'man-made disasters'.
Other commentators have
been more cautious in discussions of the clause. A 2010 paper
published by the Swedish Institute of International Affairs argued
that unlike the Lisbon Treaty's mutual defence clause (Article
42(7), which obliges states to offer "aid and assistance
by all the means in their power" to another Member State
that is "victim of armed aggression on its territory"),
the solidarity clause "is focused on non-territorial and
non-military cooperation focused on building a resilient EU capable
of protecting European citizens and societies against cross-border
risks and threats." [4]
Jaksch referred to recent
events provoked by the financial crisis to illustrate her own
point. "A circumstance could be when the police (Greece)
or army (Portugal)" participate in protests against the
government, she said. "The example of Greece and in particular
the metro strikes shows that civil rights are no longer a priority."
The metro strikes to which
she refers were recently ended by the Greek government using
a "civil mobilisation order", through which the government
"threatened metro workers with dismissal, arrest and even
imprisonment."
Metro and other public
transport workers had been on strike for ten days in response
to wage reductions demanded by the 'Troika' of the EU, the International
Monetary Fund, and the European Central Bank, as part of the
conditions of Greece's financial bailout. According to the BBC:
"It was the first
time the conservative-led coalition had invoked a 2007 emergency
law to deal with 'peace-time emergencies. Such emergency legislation
has only been used nine times since the collapse of Greece's
military dictatorship in 1974." [5]
One blog that covers the
political situation in Greece reported that "at approximately
03.40AM, riot police (MAT) and police's special anti-terrorist
task force (EKAM) stormed the central metro depot in Sepolia…
At least 100 workers were inside the depot at the time of the
operation and at least three were detained." [6]
"A comprehensive
Union solidarity toolbox"
The European Parliament's
Foreign Affairs Committee in its report on the clause said that
there should be "an adequate balance between flexibility
and consistency as regards the types of attacks and disasters
for which the clause may be triggered, so as to ensure that no
significant threats, such as attacks in cyberspace, pandemics
or energy shortages are overlooked."
The Committee stressed
"the importance of seeing [the solidarity clause] as part
of a comprehensive Union solidarity toolbox for addressing new
major security challenges, such as those in the area of energy
security and security of supply of other critical products, especially
in cases of politically motivated blockades."
They also argued that
"the solidarity clause can provide the impetus for enhancing
the EU's leverage among European citizens, offering tangible
evidence of the benefits of increased EU cooperation in terms
of crisis management and disaster response capabilities."
The Commission, in its
introduction to the legislative proposal, said that the report
of the Foreign Affairs Committee was "very useful."
The Council is yet to take a public position on the proposal.
Sources
[1] Committee
on Foreign Affairs, Report
on the EU’s mutual defence and solidarity clauses: political
and operational dimensions (2012/2223(INI)), 31 October
2012
[2] European Commission/High Representative, Joint
proposal for a Council Decision on the arrangements for the implementation
by the Union of the Solidarity Clause, 16 January 2013
[3] CATS, Outcome
of proceedings, 3 November 2011
[4] Sara Myrdal & Mark Rhinard, The
European Union's Solidarity Clause: Empty Letter or Effective
Tool?, 2010
[5] Greece
crisis: Athens 10-day metro strike ends, BBC News,
25 January 2013
[6] Riot
police and anti-terrorist unit storm the metro depot in Athens,
From the Greek Streets, 25 January 2013