EU: Solidarity or militarisation? Proposed 'solidarity clause' legislation criticised for "lack of clarity" and "encouraging armament"

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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.

[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

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