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The constitutional treaty: 'enabling text' for foreign policy and defence

21 October 2004

The EU's constitutional treaty is, in so far as it touches on foreign policy and common defence, an 'enabling' text. The treaties approved since the Maastricht Treaty (in 1992) have been mostly about constraining the general scope and function of the Union's foreign, security and defence policies. With the constitution, such constraints are either scrapped or the conditions for doing away with them in the future are set. The post of EU foreign affairs minister, introduced by the constitution, might bring consistency and leadership to a set of policies that are still too fragmented. Crisis management has become more extensive (the new missions go beyond the traditional "Petersberg tasks" of humanitarian and rescue tasks, peacekeeping, combat forces in crisis management) and more flexible (a group of states can be mandated to act on behalf of the whole Union). The scope of enhanced cooperation, enabling a group of states to forge ahead in a specific area, is no longer limited and defence policy is now also supported by the `permanent structured cooperation' scheme. Resorting to qualified majority voting (QMV) on certain decisions could have been made easier. Yet QMV is not necessarily a panacea for common foreign and security policy (CFSP) decisions, which at any rate require broad internal consensus to be credible. In addition, the member states may use the `passerelle-clause' introduced in the new treaty and decide by consensus to introduce QMV instead of unanimity voting for some decisions. The second element that makes the constitution an `enabling' text is the fact that it is the result of member states' unanimous agreement.As the compromise reached in June by EU government leaders on a final version of the constitution is a consensual one, most of the new provisions enshrined in the treaty are accepted by all member states. Because everybody agreed on them, they could be put in place ahead (and even, for some of them, regardless) of the actual entry into force of the constitution. This has already happened with the European Defence Agency, introduced by the constitution, which has been operational since July. The new mutual defence and solidarity clauses are also `enabling' provisions. The mutual defence clause refers to the case of a state being "the victim of an armed aggression against its territory". Under the proposal put forward by the Convention that drafted the constitution, the clause did not apply to all member states but could be subscribed to on a voluntary basis by those states that so wished. It represented a form of "closer cooperation" open to all. Accordingly, the participating states were expected to give the one under attack "aid and assistance by all the means in their power, military or other", in line with the UN Charter and in cooperation with NATO. But the clause raised old and new doubts, such as the status of the neutral EU countries and its potential to decouple Europe from the United States or to divide EU member states. This led to a partial rewriting of the clause, by member states' representatives in the intergovernmental conference (IGC) whereby mutual defence would become binding for all - thus suppressing its voluntary character and closer cooperation format - while contemplating explicit provisos for both NATO members and neutral countries. The clause remained in the constitutional treaty (art. I-40) as a general objective of the Union. The Convention introduced another clause whereby the EU and its member states would "act jointly in a spirit of solidarity" in the event of a member state being "the victim of a terrorist attack or a natural or man-made disaster". The Union would "mobilize all the instruments at its disposal, including the military resources made available by the member states", to prevent the terrorist threat and assist a member state "in its territory". This "solidarity" clause did not trigger any major controversy inside or outside the IGC and was enshrined in Articles I-42 and III-231. The clause gained in political clout when in the wake of the terrorist attack in Madrid on 11 March, the EU government leaders reiterated the solidarity commitment in a declaration that reproduced the text of Article I-42. However, the treaty contains no details on the actual implementation of the two clauses, institutionally as well as operationally. The articles enshrining the clauses entail general commitments but no specific enforcement modalities. And the dividing line between mutual defence against an armed aggression and solidarity against a terrorist attack might prove thin. Both clauses, however, bestow legitimacy on any future development in this domain, as did NATO's Article 5 when it was first approved in 1949. The article, under which an attack against one or more of the Alliance's members is considered an attack against them all, only became operational some time after the political commitment was subscribed to and was only invoked 52 years later, in the wake of the 9/11 terror attacks in the US. The constitution allows for something similar happening a few years from now.