Treaties Wanted: For the Defence of Europe and European Defence

Abstract 

The invasion of Ukraine by Russia in February 2022 opened a new era in European foreign and security policy. Three key debates are happening at the same time: one is about the immediate security and operational emergency of the war in Ukraine. The second debate is about what optimal conditions to set in the coming years for European defence capabilities to grow fast enough to defend the continent. The third debate is about finding the appropriate international legal framework to negotiate the new terms of European security in the longer run. This article, in dialogue with the contributing authors to this special issue on Defence, calls for the negotiation of new multilateral treaties on European security and the defence of Europe, combining a firm pro-democracy stance, NATO and UK involvement, nuclear deterrence, as well as EU strategic, industrial and financial commitments.  

Introduction

The invasion of Ukraine by Russia in February 2022 opened a new era in European foreign and security policy. It has pushed the EU and its Member States to dramatically revise their positions and thoughts on defence, which is becoming one of the most dynamic EU policy agendas. The defence of Europe (Pavel Fischer, France culture, 2024b) has become an immediate imperative. It has re-launched common defence policies, leading, when the European Council decides so, to a ‘common defence’ (TEU, 2009). 

This introduction is in dialogue with the other articles comprising this special issue.  

In the aftermath of the European elections, let’s prioritise debates by their level of urgency. It seems three key debates are happening at the same time, yet with three different time frames. One debate is about the immediate emergency of the war in Ukraine. The second debate is about what optimal conditions to set in the coming years for European defence capabilities to grow fast enough to defend the continent. The third debate is about finding the appropriate international legal framework to negotiate the new terms of European security in the longer run.  

The articles in this journal all deal with these three debates and analyse them from a variety of angles, from spyware to the defence market, from strategic priorities to transatlantic relations, institutional innovations, and the defence of democracy in Europe.  

The three debates are obviously intertwined and interdependent: long-term prospects and views determine immediate decisions, mid-term constraints influence current decisions, and emergencies draw most of our immediate attention. The European Defence Industry Programme (EDIP) Regulation proposal states that it aims to ‘reconcile the urgent with the long-term’ (European Commission, 2024).  

In this article, I argue for the launch of a negotiation process leading to the adoption of treaties on European security and defence that would include the EU and its Member States as signatories, complementing NATO. Such treaties would contribute to the defence of Europe. As international commitments from heads of state and governments reiterating shared democratic values, they would also consolidate the democratic positioning of the EU as a political bloc, by adequately balancing human rights imperatives with security concerns, to counterbalance the influence of illiberal and populist forces in the new European Parliament. 

Ukraine now 

The Ukrainian conflict is here to stay. Experts agree that it will drag on for many years and influence several generations of Europeans (France culture, 2024 a and c). With this conflict, a paradigm shift has taken place in the way Europeans think about the defence of Europe, and in the way they are acting to pursue it.  

In the short term, direct support to Ukraine has become a testing ground of renewed cooperation formats on strategic, political, operational, and technological levels.  

Operational talks on direct support to Ukraine take place within the Ramstein format, outside NATO and outside the EU. Political talks take place in all suitable formats. For instance, NATO’s 2023 Vilnius Summit was instrumental in launching multilateral and bilateral agreements as urgent temporary frameworks (Klein & Major, 2023). Diplomatic conferences such as the February 2024 Paris conference in support of Ukraine take place in ad hoc formats. The G7 format has also been used, leading to important commitments from its members to sign bilateral treaties with Ukraine.  

At the operational level, coalition members have made new efforts in the following areas, mentioned in the Paris conference communiqué: cyber defence, co-production of weapons in Ukraine, the defence of Ukraine’s immediate neighbours who are non-NATO members (such as Moldova), support to Ukraine at its border with Belarus (possibly with a specific non-military crisis management operation), the strengthening of the EU military assistance mission to Ukraine, and demining.  

At the technological level, the Ukraine front has become a laboratory for European defence stakeholders in the areas of artificial intelligence, drones, counter-disinformation, protection of critical infrastructure, ground based -air defence, and so forth  

Last but not least, the war in Ukraine has led to historical announcements about plans to transform the European defence market and its industrial base. Some articles in this special issue go into detail on the matter, but they have included, in the short term, joint procurement of ammunition (including joint imports from extra-EU producers), reimbursement schemes for EU members that had given military equipment to Ukraine, joint transportation schemes and intra-European assets mobility, joint planning, and information sharing on increased manufacturing. In 2024 a new batch of measures was taken, focusing on even more structural transformations for the European defence sector and market.  

The medium term 

At the strategic level, the war in Ukraine, combined with the prospects of the United States withdrawing its security protection, and the confirmation of the alignment of several authoritarian powers (China, Iran, North Korea) with President Vladimir Putin’s regime, have produced tectonic shocks with a range of follow-on effects in a variety of areas relevant to European defence (Grevi, 2024).  

Firstly, the EU is now viewed seriously by almost all its Member States as a potentially credible security actor (France culture, 2024b). This is new. Estonia, traditionally very Atlanticist, has initiated a joint EU ammunition procurement scheme. The Czech Republic, under its new leadership, has been at the forefront of joint procurement initiatives for ammunition. Poland, with former EU Council President Donald Tusk, has made dramatically new statements on the EU as a military power while re-launching the Weimar Triangle with Germany and France (Caulcutt, von der Burchard, & Angelos, 2024).  

Secondly, at the operational level, the EU can still play a role, for instance in the training of Ukrainian soldiers, or in the deployment of crisis management operations (from monitoring to military assistance, security sector reform, and the protection of cultural heritage).  

Thirdly, and perhaps most importantly, the EU is now envisaging a deep industrial and trade transformation in the field of defence, partly due to a shift in position by the German leadership. Shortly after uniting to support Ukraine, European governments shifted from a weapons delivery logic to a production and co-production logic (France culture, 2024a). In 2024, they have shifted towards an investment logic. For the first time in its history, the European Investment Bank is being requested to launch a dedicated lending and blending initiative to ‘de-risk’ investment in the European Defence Technological and Industrial Base (EDTIB) (European Commission, 2024: 7, 29; and page 6 of its Financial Statement joint annex). This may be a game changer, because it will Europeanise the paradigm of defence investments that have until now been kept under the remit of national sovereignty.   

This industrial and regulatory transformation comes with a new legal interpretation of EU competences and obligations, at the request of Member States. In that regard, the legal arguments put forward by the newly proposed EDIP regulation deserve particular attention. The text argues for a reinterpretation of the subsidiarity principles and legitimises the EU level to take action in the field of defence industry and the internal market (European Commission, 2024: 6). It also relies on four legal bases already existing as articles of the Treaty on the Functioning of the EU to justify groundbreaking measures. Article 173 will be used to strengthen the EDTIB’s competitiveness. Article 114 relates to the European Defence Equipment Market (EDEM) and is the reference to justify the harmonisation of defence equipment standards at EU level as well as the widening or even re-opening of certain defence contracts to other Member States (European Commission, 2024: 5).  

Old debates have been revived but new paradigms are emerging and will remain high on the agenda in the coming years. This includes European military socialisation and training to work towards converging strategic and security cultures; scaled-up interoperability thanks to the harmonisation of technical standards; and increased national and collective military spending.  

The debate on Member States’ GDP percentage going to defence has burgeoned and new arguments are now being made. Various calculation methods are being used: individual national figures are now used side by side with aggregated figures combining collective spending figures of all EU states. Some authors in this special edition also suggest including EU spending, on top of national expenditures, in the GDP percentage. The collective spending approach would probably suit France, which is often called out by defence experts for its unconvincing expenditures efforts (Dempsey, 2024). Other stakeholders, such as Pavel Fischer, president of the Czech Senate’s Foreign Affairs Committee, call for new, more ambitious targets, much higher than the NATO-related 2 per cent, underlining that this objective was only relevant during peaceful times (which now belong to the past).  

The ‘Buy European’ debate has also been revived and will occupy defence stakeholders at least in the next few years. It is also partly connected with the ‘Made in Europe’ debate, which presupposes the willingness of European industrial partners to engage in the very long term. It is not clear how the French view of ‘European preference’ (Élysée, 2024), which President Emmanuel Macron wishes to see anchored in future treaties, will materialise in the near future.  

Yet critics, such as Michael Shurkin, still consider that Europeans are good at talking and promising structural change without really walking the talk (Radio France, 2024b). Other analysts suspect Europeans will really take bold action only when the likelihood of a new Trump presidency is confirmed (Radio France, 2024a) and may even go back to business as usual if it is not (Dempsey, 2024).  

At the end of the day, the consequences of these debates will impact the European economy and politics far beyond the duration of electoral mandates. Who will pay for these structural reforms of the defence sectors? How can they be combined with other reform imperatives to tackle climate change and strive for sustainable development? Who is ready to commit huge resources to decades-long joint industrial programmes? The new European security context raises structural questions that only new treaties, as durable political and legal frameworks, will be able to answer.  

The long term  

Europeans at last seem to have found what ‘binds them together’, to use the words of Habermas and Derrida (2003), who were calling for an autonomous European foreign policy in the wake of the US invasion of Iraq back in 2003.¹  

The foundations of the European pillars on which the future defence of Europe will rely are now in place. They consist of a myriad of efforts to reinforce security and defence cooperation and guarantees between individual states in Europe: bilateral treaties, dialogue, joint work, networks, ad hoc (EU) mechanisms and institutions, and reforms of national defence and military systems (Koenig et al., 2023). Bit by bit, they are all contributing to shaping a common understanding and a community gathered around the same fears, the same principles, and the same priorities. Every day a brick is added, and the pillars are being strengthened creatively, even though no single unique grand design is being used as a reference.  

Critics rightly consider that this approach is not effective and fast enough. Others regret that defence prioritisation puts green transitions in jeopardy. As a matter of fact, winning the war in Ukraine means defeating anti-ecological forces that reject climate action. Of course, it would be better if the EU could channel all its resources primarily into green transformations. But Putin and his allies have not given us a choice. The EU’s ability to lead on climate action will be determined by its victory in Ukraine.  

Old taboos are now being discussed. Putin’s threats to use nuclear weapons since 2022 have triggered a Western European response on nuclear deterrence (Trevelyan, 2024), opened a new debate in Germany about the need for nuclear deterrence (Kühn, 2024), and re-opened old ones among defence experts (in particular. Footnote German Debate on nuclear deterrence since 2023).  

Ongoing joint European defence industrial programmes, such as the MGCS and the SCAF, both launched in 2017 (L’Express, 2024), will take at best a couple of decades to become a reality. This is also what happened to the Airbus A400, which had a long and bumpy journey before taking off commercially. These examples show that the joint projects being launched as part of the new EDIP will not help to win the war in Ukraine any time soon. Yet they may help Europeans catch up with the global arms race (Bezat, 2024). Whether this will be enough for the defence of Europe in the long run, only time will tell.  

EU heads of states and governments have now made decisions to prioritise long-term defence investments in joint and unifying European industrial projects. They have demonstrated political will, the first ingredient of credibility. The success of long-term defence financing through the mobilisation of the banking sector and the European Investment Bank in particular will be European defence’s second EU credibility factor. The third one will be the capacity of European states to agree on stronger mutual collective commitments to guarantee the defence of Europe, within an enabling political framework.  

Towards a treaty on security and defence in Europe  

In a 2023 analysis entitled ‘Ensuring Ukraine’s Security’, Margarete Klein and Claudia Major wrote, after calling for efforts to implement the 2023 Vilnius agreements and for the weakening of Russia’s offensive capabilities: ‘The third work strand is about strengthening the resilience, defence and deterrence of the EU and NATO and securing long-term support for Ukraine.’  

Until Ukraine becomes a NATO member, and as long as US politics remains potentially threatening or disappointing – as the stalemate on military assistance to Ukraine was – there is a need to defend the European continent against major threats, for a Europe-wide equivalent of NATO article 5 and EU article 42.7, but including the United Kingdom and Ukraine as well as other willing and like-minded non-EU and non-NATO members. Because of these conditions, and because not all EU members share the same strategic view and the same strategic culture (Dempsey, 2024), a new political framework to defend Europe cannot be an EU treaty. It has to be something more, combining ongoing bilateral and multilateral treaties and bringing added value on the industrial dimension, and on nuclear deterrence. The industrial component is currently being developed by the EU. The deterrence component is a topic that France will have to negotiate with its EU, European and NATO allies, in an appropriate format (which, for Bruno Tertrais, must not be the EU) (Radio France, 2024a). 

President Macron’s second Sorbonne speech on Europe on 25 April 2024 referred to existing bilateral treaties (including the Lancaster House treaty with the UK), and to the European political community as the right space to host such negotiations on a new security paradigm and on a common security and defence framework (Élysée, 2024).  

What will or would such a treaty look like? It should refer to the compendium of existing bilateral and multilateral treaties, while adding a series of articles and protocols comprising new provisions on mutual assistance, deterrence, financing, industry, trade, and joint operations. A series of opt-outs will also have to negotiated with individual signatory states wishing to be outside certain protocols. The EU, bringing its industrial, market regulation, and trade competences, would also be a signatory as such. NATO could also be a signatory to ensure compliance with the Alliance’s obligations and mutual responsibilities.  

References 

• Bezat, J.-M. (2024). ‘No Region of the World Is Exempt from Rising Military Spending’. Le Monde, 23 April. https://www.lemonde.fr/en/economy/article/2024/04/23/no-region-of-the-world-is-exempt-from-rising-military-spending_6669285_19.html#:~:text=By%202023%2C%20total%20military%20expenditure,published%20on%20Monday%2C%20April%2022. 
• Caulcutt, C., von der Burchard, H. & Angelos, J. (2024). ‘Only Military Might Will Win Europe Respect, Poland’s Tusk Tells Fellow Leaders’. Politico, 12 February. https://www.politico.eu/article/france-germany-and-poland-hail-revival-of-relations-while-admitting-differences/. 
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• Habermas, J., & Derrida, J. (2003). ‘February 15, or What Binds Europeans Together: A Plea for a Common Foreign Policy, Beginning in the Core of Europe’. Constellations, 17 October. 
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