Activating the Mutual Assistance Clause of the Treaty on the European Union and the Right of Self-defence

Abstract

Abstract Following the 2015 Paris attacks, one of the most discussed issues is whether the Paris incidents constitute an ‘armed attack’ requisite to trigger the right of self-defence in light of the wording of Article 51 of the UN Charter of 1945. Indeed, should the responses of the Member States to the Paris attacks, activating the mutual assistance clause, be seen as a move towards the formation of a new customary rule reshaping the content of the right of individual or collective self-defence in accordance with Article 51 of UN Charter and customary law? Or should that invocation of Article 42 (7) TEU be considered a violation of the UN Charter law of self-defence? This chapter examines the textual and contextual elements of Article 51 of the UN Charter and the practice of States since then, mainly in the context of the activity of the UN Security Council. After a careful examination of those elements, it concludes that if it can be said that the existing rule in international law in both conventional and customary law allowing states to have recourse to the use of force in self-defence can only be legally exercised in the presence of an armed attack committed by a state, it can be argued that the current practice of states appears to be heading in another direction. For the drafters of Article 51 of the UN Charter the right of self-defence was already ‘inherent’. If they had been in the current situation, they may have extended this right to cases of major terrorist attacks. In view of this context, the invocation of Article 42 (7) TEU in response to a serious terrorist attack, like those in Paris in November 2015, cannot be considered a violation of Article 51 of the UN Charter. Many of the EU Member States are prepared to entertain a new interpretation of that provision, at least that portion which respects the scope of the ratione personae.