Legal basis of the common European Security Policy in the light of the provisions of the Treaty of Lisbon

Naif Jassim ALABDULJABBAR, PhD candidate
Reviewer: Vitalie GAMURARI, PhD in law, associate professor

The common European security policy has evaluated together with the adoption of treaties through which the European policies were regulated — from the regulation based on the international public law — to the regulation based on the European directives and regulations. Thus, the member states, but the same in the equal measure the European institutions have contributed to the consolidation of a unique policy of common security in the European area in the context of a world where often the national populist interests prevail. Keywords: unique policy, security, defense, implementation, competences, institutions, Commission, Council.

Baza juridică a politicii europene de securitate comună în lumina prevederilor Tratatului de la Lisabona Politica europeană de securitate comună a evoluat odată cu adoptarea tratatelor prin care erau reglementate politicile europene — de la reglementare în baza dreptului internațional public — la reglementare în baza directivelor și regulamentelor europene. Astfel, statele membre, dar, în egală măsură și instituțiile europene, au contribuit la consolidarea unei politici unice de securitate comune a spațiului european în contextul unei lumi în care deseori predomină interesele populiste naționale. Cuvinte–cheie: politică unică, securitate, apărare, implementare, competențe, instituții, Comisie, Consiliu.

Introduction

The external and common security policy (ECSP) of the European Union (EU) from the view point of regulation is a specific one for the European Integration process. This criterion is dictated by the fact that comparing to other policies regulated within the Ist and IInd Pylons mostly based on the European regulations and directives, ECSP is regulated through the international law instruments, Or this rule wasn’t changed even by the Treaty of Lisbon entered in force in 2009 year.

The European states have the full sovereignty over its external policies. However, they share a particular number of common interests due to this fact; EU has the possibility to express itself with a voice and to play a role of first plan on the international scene. Being revised by the Treaty of Maastricht (1992), ECSP offers to the member states the necessary means for reacting mutually agreed before the great challenges at the global level.

Importanța PESC pentru UE

EU has diplomatic relations with the majority of countries of the world. Out of its borders, it is represented by a network of 139 delegations which exercise the role of European veritable ambassadors. Through the numerous examples of positions and common actions can be presented the following: EU excluded the occupied territories of the cooperation treaties with Israel, it excluded the arm branches of Hezbollah organization in the black list of terrorist organizations, imposes embargo or/and economic and financial sanctions for the regimes of Syria, Iran, Birma etc.1

After the attacks of September 11, 2001 and separation of position of the member states referring to the invasion of Iraq in the spring of 2003 year, the member states wanted to reunite around a European security strategy (ESS). Adopted by the European Council in December 2003, it identified the main threats which EU faces — terrorism, big criminality, clandestine migration, proliferation… –, but without presenting concrete solutions. In 2016 the Global strategy of the European Union (GSEU) replaces ESS, including the new appeared threats — cyber criminality, climate changes, maritime security.2

The object of ECSP is defined in the art. 24 para. 1 of the Treaty of Lisbon: „the Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defense policy that might lead to a common defense“.3 Further, the same article provides that „the common foreign and security policy is subject to specific rules and procedures“.4 By this norm, this field of cooperation is taken out of the action of the common law of the European Union.

Thus, the Treaty of Lisbon fixed this compromise under which the European political cooperation from the very beginning appeared as a component independent part of the law of Communities, thus in the formula lex specialis it became the autonomous part of the law of the European Union.

The coordination mechanism of the external policy of the member states started to form in the period 1960—1970 in the formula of the European political cooperation. The beginning was in 1968 within the meeting of the state chiefs and governments of Hague where it was adopted the decision on creation of a special committee constituted of the representatives of the diplomatic missions of the member states. The final cat of the reunion of Hague was adopted as a report „on problems of political unification“, the so called Davighion Report, on behalf of the Belgian diplomat who administered the committee.

The Davighion Report after being approved by the ministers for foreign affairs of the member states of the European Community on October 27, 1970 has become the basis for creation of a new direction in the European integration process which further has transformed in an autonomous field of the law of the European Community — European political cooperation.5

Thus, this field started to constitute based on a special mechanism of coordination of actions of the member states of the European Union for the purpose of further creation of a common external policy. We draw attention that in ECSP, the European Union has permanent representative offices abroad. The Treaty of Amsterdam has introduced a special function that of the Highest Representative for ECSP who concomitantly is also the President of the Council of Ministers of EU in the format of the ministers for foreign affairs.

The first Higher Representative of EU was in 1999 the ex– General Secretary of NATO, Xavier Solana. Such an appointment can’t be seen as a coincidence, because some decisions made within ECSP should be realized together with NATO. This is related to the specificity of the evolution of the integration process at the initiated stages in the conditions in which it was chosen a principled new way for settling the problem of security of the Western Europe, whose essence consists in creating a common security system with USA based on the international security profile organization — NATO.

That is why the exclusion of the common law of EU a filed as ECSP influenced a lot the evolution of the integration process. This fact refers also to aspects on EU structure and matter of the capacity of common law and the matter on amorphous situation of the law system of EU when ECSP is regulated based on institution treaties of EU and the military operations are exercised under the management of a military organization which is not a part of EU.

ECSP has its own principles which are enumerated in p. 2 and 3 of the art. 24 of the Treaty of Lisbon:

Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an everincreasing degree of convergence of Member States’ actions.

The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.6

The member states support ECSP in the spirit of mutual loyalty and solidarity and respect the EU actions in this field. The member states mutually agreed collaborate for the consolidation and development of the common political solidarity. They abstain from any actions which contravene to the interests of EU or able to cause prejudice to its efficacy in its capacity of unifying power in the international relations.

The last but one part of the mentioned article of referring to the sense is practically identic with p. 1 of the art. 11 of the Treaty of Amsterdam (1996) and that of Maastricht (1992). This article in equal measure states the obligation of the member states in the field of ECSP in relation to EU.

However, the NATO operation of Libya in 2011 has emphasized the lack for this principle of the application mechanisms, being given the fact that any state participates to ECSP emerging from its own national interests and in the case when the national interests coincide with the interests of EU.

Before the Treaty of Lisbon at the realization of the policy of EU three subjects were taken place — the European Commission, the state which presides in the European Council and the Higher Representative for ECSP. In this „triad“ the decisive role had the state which was presiding. But the fact that the state which presides changes in every 6 months produces particular negative effects in relation to the efficacy of activity. The Treaty of Lisbon introduced some corrections which have as the objective contribution to increasing the efficacy.

It was submitted the idea of unifying the functions of the external policy in the hands of the Higher Representative. This idea is not new, because it was elaborated within the project of the Constitution of the European Union.

The Treaty of Lisbon has introduced the position of the Higher Representative for Foreign Affairs and Security Policy. This idea is through the new ideas of the Treaty of Lisbon in the field of the European security policy.

The Higher Representative for Foreign Affairs and Security Policy cumulated the functions of the ex–Higher Representative for the Common Foreign and Security Policy, of the Commissioner for Foreign Policy, European Commission and state which presides in the format of the Council for the foreign policy.

The Higher Representative is appointed by the European Council based on the qualified majority „the European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure“ (art. 18 of the Treaty of Lisbon).7 He is appointed and dismissed with the approval of the President of the European Commission. While passing the Commission he is supposed to the confirmation by the European Commission. The Higher Representative is responsible before the European Council which has the right to dismiss him by the procedure required for appointment. In case when the European Parliament adopts the mistrust vote to the Commission, the Higher Representative is dismissed together in corpore with the Commission. The Higher Representative elaborates proposals and exercises the activity of external policy as the president of the group of the Council for the external policy. He is the vice–president of the European Commission and is responsible for ensuring the continuity of the external policy promoted by the European Union.

According to the art. 27 of the Treaty of Lisbon, the Higher Representative by his recommendations contributes to the elaboration of ECSP and ensures the realization of decisions of the European Council „the High Representative of the Union for Foreign Affairs and Security Policy, who shall chair the Foreign Affairs Council, shall contribute through his proposals towards the preparation of the common foreign and security policy and shall ensure implementation of the decisions adopted by the European Council and the Council“.8 He has the right as each member state on his behalf to introduce matters for examination related to ECSP. According to the art. 30 of the Treaty of Lisbon, the Higher Representative for Foreign Affairs and Security Policy has representative functions „any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission’s support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate“.9

For realizing the actions in the field of ECSP auxiliary bodies were instituted, they are the European Service for foreign policy and the Committee for foreign affairs and security policy. The European Service for the foreign affairs policy (p. 3, art. 27 Treaty of Lisbon) was instituted in place of the Ministry of Foreign Affairs planned by the project of the Constitution „in fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission“.10 The Service has a sufficient number of employees. It is instituted of the employees of the Commission apparatus, General Secretary of EU Council, diplomats and minsters of the member states.

The Committee for foreign affairs and security policy helps the Council, the Higher Representative for foreign affairs and security policy. The Committee can in the equal measure on its own initiative to come with proposals related to the stability of some directions of the foreign affairs policy of EU, as well as regulating the crises (art. 38 Treaty of Lisbon):

Without prejudice to Article 240 of the Treaty on the Functioning of the European Union, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council at the request of the Council or of the High Representative of the Union for Foreign Affairs and Security Policy or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the powers of the High Representative.

Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the High Representative, the political control and strategic direction of crisis management operations referred to in Article 43.

The Council may authorise the Committee, for the purpose and for the duration of a crisis management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation.11

Thus, the actions undertaken by EU in the field of ECSP are focused on exercising common actions of the member states on the international level. In case in which the member states came to a solution in relation to a subject, EU has to coordinate their common actions.

According to the art. 37 of the Treaty of Lisbon in the field of ECSP „the Union may conclude agreements with one or more States or international organisations in implementation of this Chapter“,12 EU can sign agreements with one or more states or with international organizations. In case of member states they succeed elaborating a unique position within the international organizations and international conferences, they coordinate their actions based on EU position „in international organisations and at international conferences where not all the Member States participate, those which do take part shall uphold the Union’s positions“ (art. 34).13 Diplomatic and consular services of the member states and EU delegation in the third states and before the international organizations coordinate between them.

Coordination of positions takes place by the exchange of information and mutual appreciations for the purpose to ensure the respect of interests and execution of EU decisions, adopted within EU (art. 32, 35). In this context we have to find that for example, the adherence to EU as the subject of international law to the European Convention for Human Rights (ECHR) „the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties“ (p. 2, art. 6 Treaty of Lisbon),14 as well as the entry in force of the 14th Protocol (ECHR) have produced particular specific effect. In the situation EU becomes a collective participant to ECHR, the states which are not the member states of EU are in an unequal situation in relation to the rest of EU member states. In case in which a member state of EU is based on EU law when submitting a claim against such a state to the European Court for Human Rights (ECHR) the EU mechanism will be put into application. That is why the member states of the European Council which are not the members of EU will be in an unequal situation. Or, in the case when a claim is submitted against a EU member state, it in an equal measure is submitted against EU.

That is why, the changes made in the Treaty of Lisbon which are related to the coordination by the member states of their position within the organizations, refer also in the equal measure to ECSP. Or the establishment of the collective security system of EU can radically change the geopolitical charter not only of Europe, but of the whole world. The Treaty of Lisbon also provides a complex of unilateral measures of EU within ECSP. But here we have to mention once again that the Treaty of Lisbon equally as the previous treaties of the European community and EU exclude the adoption of some actions by EU in the field of ECSP „decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded“ (p. 1, art. 31 Treaty of Lisbon).15 Or, in the field of ESCP further there are possible only the measures of non–legislative order.

Art. 25 of the Treaty of Lisbon emphasizes two manifestation forms from EU in the field of ECSP:

(a) defining the general guidelines;

(b) adopting decisions defining.

That is why, in the context of realization of ECSP as a foreign activity form of EU is not provided the adoption of some mandatory legal acts, but further is used the method of inter–governmental cooperation. Thus, the attempt of communization od ECSP had no success. The Treaty of Lisbon has additional guaranties for the inviolability of the basis of the intergovernmental cooperation in the field of ESCP setting that the new institutions and mechanisms will not undermine the mechanism based on intergovernmental cooperation within ESCP.

Based on the mentioned above facts we can establish that the element of news can be considered only the obligation for the states to action mutually agreed and to collaborate within EU in case of risk of terrorist attacks or in situations of natural or technogenic disasters, obligation instituted by the Treaty of Lisbon as well as introducing the position of the Higher Representative for the Foreign Affairs and Security Policy.

But, despite the desires of the authors of the Treaty of Lisbon that by the new position to achieve a compromise it is created the impression that this objective wasn’t achieved. Or the rights of the Higher Representative only are representative, the last word belonging to those two governmental bodies — the European Council and the Council of the European Union, in other words — to the member states. In addition, according to the provisions of p. 1, art. 17 of the Treaty of Lisbon in relation to other aspects of the foreign affairs policy, including in the social–economic field, the right to represent further EU belongs to the European Commission:

The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to the Treaties. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the 13 Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.16

 

Politicile în materie de securitate ale UE

According to p. 1, art. 42 of the Treaty of Lisbon, the common security and defense policy (CSDP) is a component part of ESCP:

The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace–keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.17

Thus, it in the equal measure constitutes an element of an autonomous part of EU law — ESCP. According to p. 2, art. 42 the term of common security and defense policy supposes the continuous elaboration of the common defense policy of EU:

The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements. The policy of the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.18

However, within ESCP, CSDP currently has a special legal status which is regulated by a special section of Chapter 2 „Specific provisions concerning the Common Foreign and Security Policy“. Changes introduced by the Treaty of Lisbon in the field of CSDP mostly reflects the aspects as follows.

EU undertakes from the legal view point to help the third states in fighting against terrorism. The Treaty of Lisbon has consolidated the collective self–defense principle of the member states. For improving the technical supply of forces it was instituted the European Defence Agency. The full name is the Agency in the field of defence capabilities development, research, acquisition and armaments (p. 3, art. 42). The Treaty of Lisbon in equal measure mandates the member states to do the permanent cooperation organized in the military field (art. 42, 46). The mentioned norms and articles are accompanied by a Special Protocol no. 10 „On permanent structured cooperation established by Article 42 of the Treaty on European Union“.

It also should be mentioned that in the field of common security and defense policy of EU which makes part of ESCP, the matter to achieve an agreement between the member states is more problematic. This fact was demonstrated by EU when before the member states appeared the need to make a decision on participation within NATO operation in the Northern Africa. This was dictated not only by the reason of the lack of unity between the structures of NATO, the main problem in the context of making a decision in matter of CSDP consists in coordinating the national interests of the member states about the aspects which do not refer directly to EU security.

That is why, such a segment of ESCP as is the common security and defense policy fewer if compared with the main part permit us to suppose that ESCP could be transformed in an institutional mechanism of EU law.

CSDP, the previous European Security and Defense Policy (ESDP) offers EU the possibility to use military or civil means designated for preventing the conflicts and management of international crises. It is an integral part of ESCP, fact which permits the conduct of some military contingents out of EU territory.

Such example of European autonomous forces which are currently present in several conflict areas:

• In Mediterranean — mission of fight against immigrants’ traffic EU NAVFOR Med launched in 2015;

• In the Central African Republic — stabilization mission EU FOR RCA launched in 2014;

• in Mali — mission of military forming EUTV launched in 2013;

• in Somalia — mission of military EUTM launched in 2010;

• Coastline of Somalia — naval operation ATALANTE against the piracy launched in 2008;

• in Bosnia and Herzegovina — mission of keeping peace ALTHEA launched in 2004.19

The first common military mission was ARTEMIS mission (June 12 — September 01, 2003) in the Democratic Republic of Congo which had the objective to stabilize Bunia region and permitting for humanitarian aid.

Another form of common missions is the missions of civil management of crises. EU currently also ensures the police missions and missions for supporting the security forces or the rule of law, consolidation of capacity or assistance at borders:

• in Europe — EULEX in Kosovo, EUBAM in Moldova, EUAM in Ukraine, EUMM in Georgia;

• in the Middle East — EUPOL and EUBAM Rafah on the Palestinian territories and EUAM in Iraq;

• in Africa — EUBAM in Libya, EUCAP SAHEL in Mali, EUCAP in Niger and EUCAP on Horn of Africa.20

CSDP can be examined by the light of two elements:

• existence of a strategic culture of EU, shared by the actors of the European defense and;

• manner in which the national, functional and institutional socializations to which they are supposed, function and the way and their level of adherence to them.21

The matter related to the European strategic culture is the core the controversies which are brought by the realist and constructivist authors in relation to CSDP. For the first, the strategic cultures a strong national and tributary to this title of history, own for each member state. The estimate additionally that the notion of strategic culture is secondary, the defense and security policies being determined by the balance between the power and the national interest of each state.

For the second, on the other hand we assist to a convergence of national strategic cultures under the effect of exogenous changes — related to the emergencies of new threats, awareness of the limited military capacities of Europe or USA influence — but in the equal measure endogenous, factor of the pressure for the adaption the European defense exercises over the national defense policies.22

These divergences are not only of formal order, but they refer to the distinct belief on efficacy and viability of military action of EU. For realists, CSDP is only the expression of a strategy which leads the member states to support the process of European construction in military matter, they at the same time remaining on the segment of defense of the respective national interests. Such a strategy condemns the process of European defense, the realists estimating the incapacity of an effective provision of security over on the continent.23

For constructivists, on the other hand, the existence of the national divergences should not mask the process of Europeanization of opera in military matter which is with no common measure with the proportions of the material resources which offer the member states. In such a perspective, they plead for considering those discrediting which can exist between the representatives of the European defense in force for the national actors.

Thus, we can suppose that a European strategic culture could be contoured around four sizes:

1) cooperation area — NATO or EU — which give privileges to actors;

2) their degree of joining to the national or European sovereignty;

3) goals they attribute to the European cooperation in military matter;

4) nature of instruments — civil or military — which they recommend to be engaged.24

We have to emphasize an adherence of agents of European defense to a space of European central military cooperation rather for EU than NATO, fact which combines with a strong joining toward the national sovereignty. We find, among other things that the European agents, in other words those who activate in the European courts identifies more with European defense if compared to those who activate within the national courts.

We can find in equal measure that they support more an heterodox conflict of force use, privileging an implementation of military or civil forces out of EU, rather than the defense of the European territory or the fact that these agents are mostly joining to use of instruments of hybrid action, at the same time military and civil promoted by EU.

 

Conclusion

Analyzing the visions of states in this context we find that for example the British agents appear expressly more close to the Atlantic Alliance if compared to similar agents of France and Germany and it is clear that they are more favorable toward the idea of national sovereignty in military matter if compared with the last. Those of France and Germany adhere to the idea of a participation of the European defense in some interventions outside if compared to British agents.

Thus, we can conclude the following.

First of all, the concerns related to the adherence of the agents of the European defense to a strategic culture of EU are based on a series of representative offices which are their own.

Secondly, we speak about the return to the discrepancies of this adherence in the position of the studied sub–population which are positions of mechanisms of national, functional and institutional socialization which contribute to the form. For these eyes these different findings justify the fact that it is about a „differentiated integration“ in the field of defense, depending on the national, institutional or professional membership of the concerned actors.

At the end of the survey we can say that EU tries to keep its hand on pulse in the context of challenges which faces the European continent generally, especially the EU member states. Through the instruments which come to ensure the common security is the European Initiative of Intervention (EII), which was founded in June 2018. It includes 10 EU member states: Belgium, Denmark, Estonia, Finland, France, Germany, Portugal, Spain, The Netherlands and the United Kingdom (despite Brexit). The objective of EII is the creation mutually agreed with the states „available and desiring“, a common military structure for fixing some common politic objectives and priorities on which the major national states will be able to work together. EII consists of a permanent secretary who maintains the relation with the military authorities of the states having strategic discussions twice a year and an annual meeting of ministries.

The future possible interventions under the aegis of EII will be able to be of different forms, for example from the military operations to population assistance in case of natural disaster.