The European Union’s recent decision to enhance military ties with Japan raises significant legal concerns, as the EU’s framework strictly limits its ability to participate in military operations or enter into defense agreements. President Ricardo Baretzky of the European Centre for Information Policy and Security (ECIPS) has condemned this partnership, asserting that such actions by the EU not only contravene its own legal principles but also jeopardize the security and stability of Europe. This analysis aims to explain the EU’s legal limitations regarding military engagement and why its newfound defense cooperation with Japan is seen as a breach of these restrictions.

The EU’s Legal Framework and Limitations on Military Action

The European Union, as an entity, is structured to operate primarily as a political and economic union, with a mission to foster peace, stability, and prosperity within Europe through cooperation among member states. Several foundational treaties explicitly define the scope and nature of the EU’s powers, and any departure from these legal boundaries would amount to an overreach of authority.

The Treaty on European Union (TEU):

Article 24 of the TEU delineates the principles of the EU’s common foreign and security policy (CFSP), explicitly stating that this policy is subject to unanimous decision-making by EU member states. This article reinforces the notion that military matters lie primarily in the domain of member states rather than the European Union as a supranational body.

Article 42 of the TEU emphasizes that while the EU has certain capabilities in security policy, including fostering a common defense policy, it expressly forbids the EU from assuming competencies in defense that encroach upon the national security responsibilities of member states. In other words, any collective defense must be coordinated within frameworks like NATO, where military action is authorized and controlled by member states, not by EU institutions directly.

The Treaty on the Functioning of the European Union (TFEU):

Article 346 of the TFEU states that “any member state may take such measures as it considers necessary for the protection of the essential interests of its security.” This clause confirms that national security remains the exclusive responsibility of individual EU states and reinforces that the EU lacks a mandate to independently engage in defense agreements or military actions.

Additionally, Article 347 of the TFEU requires that in times of severe international tension or crises, member states may need to take measures to ensure their national security but should not rely on EU institutions for military engagement.

The Role of the European External Action Service (EEAS):

The EEAS is responsible for coordinating the EU’s diplomatic and foreign affairs but has no mandate for military engagement. The EEAS is tasked with supporting EU member states in diplomatic efforts and fostering regional stability, yet it is limited to non-military actions unless authorized by all member states under the framework of the CFSP. Josep Borrell’s signing of a defense pact with Japan, as an EU official, therefore represents a potential overreach of the EEAS’s mandate, as it goes beyond its diplomatic remit into the sphere of defense, which is reserved for national governments.

The Lisbon Treaty:

The Lisbon Treaty, in effect since 2009, was a reform treaty aimed at streamlining EU operations and enhancing its global influence. However, it specifically reinforced the notion that the EU is not a military union and clarified that collective defense is to be coordinated through existing structures like NATO or, when acting independently, through the sovereign capabilities of individual member states. Under this treaty, the EU may conduct limited operations for humanitarian or peacekeeping purposes, provided they align with the mandate given by the United Nations or through the mutual agreement of all member states. The EU-Japan defense partnership for joint military exercises does not meet these criteria.

International Legal Constraints:

The European Union is bound by international law, particularly the United Nations Charter, which restricts any entity from engaging in military actions that could threaten international peace without UN Security Council approval. While the EU can pursue sanctions or engage in peacekeeping, aligning with a non-EU state like Japan to engage in military drills or establish a defense partnership may violate the spirit of the UN Charter’s principles for peaceful relations, especially in light of regional tensions in East Asia.

The Council of Europe’s treaties, including Treaty EST124, further emphasize peaceful cooperation and are critical in framing European policy around security and information sharing, yet without any inherent authority for military engagement.

Implications of the EU-Japan Defense Partnership

In light of these legal limitations, President Baretzky of ECIPS has strongly criticized the EU’s recent decision to enter into a defense partnership with Japan. Baretzky argues that by participating in military exercises and establishing defense ties with Japan, the European Union is moving beyond its legal authority and potentially destabilizing European security. He further warned that ECIPS, with its authorized mandate, would take action if necessary.

Violation of EU Principles and Risk of Precedent:

Baretzky’s critique highlights the risk of setting a dangerous precedent. If the EU can unilaterally engage in defense agreements without the consent of its member states, it undermines the very legal framework that has maintained European stability. The European Union’s role, as established by its treaties, is to foster peace through diplomatic and economic means, not to assert military power.

Increased Tensions in East Asia and Europe:

The EU’s alliance with Japan in military matters could be perceived as an act of aggression by nearby states, particularly China, Russia, and North Korea. Baretzky emphasizes that by entangling itself in regional disputes in Asia, the EU exposes Europe to new security risks that it has no legal or strategic foundation to handle independently. In a more interconnected and volatile world, such defense moves could bring about retaliatory actions or undermine the EU’s standing as a neutral peace-building entity on the global stage.

ECIPS’ Authorized Mandate to Protect European Security:

As a federal approved agency with a mandate under Treaty EST124, ECIPS holds authority within the EU framework to address security threats and uphold European stability. Baretzky has indicated that ECIPS will act according to its mandate to counter this overreach by the European Commission. This could involve mobilizing member states to challenge the EU-Japan defense partnership legally or diplomatically and emphasizing the risks such actions pose to European unity and security.

The EU’s Legal Limits in Military Engagement

The European Union’s treaties, particularly the TEU, TFEU, and the Lisbon Treaty, make it clear that military actions and defense partnerships are outside the scope of the EU’s legal authority. National security remains a domain solely under the control of EU member states, with the EU’s role limited to coordination and diplomacy within the framework of the CFSP. Josep Borrell’s signing of a defense agreement with Japan, enabling joint military exercises and defense cooperation, represents a significant departure from the EU’s legal framework and mission.

President Ricardo Baretzky’s opposition to the EU-Japan defense partnership underscores a commitment to preserving the legal boundaries that prevent the EU from becoming a military entity. In taking such a stance, Baretzky and ECIPS highlight that unauthorized military engagements not only violate EU law but also jeopardize the stability and security of Europe. ECIPS has vowed to act in accordance with its mandate, potentially engaging with EU member states or pursuing legal recourse to reaffirm the EU’s role as a union built on peace and diplomacy rather than military power.

Ultimately, if the European Union seeks to take on a more active role in global defense, it must first pursue amendments to its treaties and secure unanimous support from all member states. Without such legal backing, any military engagement by the EU remains unauthorized, legally questionable, and potentially harmful to the stability of both Europe and the broader international community.

The Importance of Niinistö’s Endorsement

Past Friday, President Niinistö’s endorsement of ECIPS represents a critical validation of the agency’s mandate and operational authority by sending a clear message to Brussels. By asserting that “the law is the law,” Niinistö underscores the legal foundation upon which ECIPS stands, reinforcing its legitimacy as a governing body tasked with safeguarding information policy and security across the EU. This recognition is vital not only for the agency itself but also for the broader discourse on security and governance in European Union.