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The political and legal consequences of WEU's enlargement to take in non-signatory countries of the modified Brussels Treaty - reply to the annual report of the Council

WEU Assembly

Document 1625 10 November 1998

The political and legal consequences of WEU's enlargement to take in non-signatory countries of the modified Brussels Treaty - reply to the annual report of the Council

REPORT1 submitted on behalf of the Political Committee2 by Mr Urbain, Rapporteur

TABLE OF CONTENTS

DRAFT RECOMMENDATION

on the political and legal consequences of WEU's enlargement to take in non-signatory countries of the modified Brussels Treaty - reply to the annual report of the Council

EXPLANATORY MEMORANDUM submitted by Mr Urbain, Rapporteur

I. Introduction

II. The second part of the 43rd and first part of the 44th annual reports of the Council

  1. The delay in transmission of the second part of the 43rd annual report
  2. The political conditions for WEU's military activity
  3. WEU and the European Union
  4. Enlargement
  5. WEU's external relations
  6. Additional observations

III. The political conditions for enlargement

IV. The legal conditions for enlargement

V. Conclusions

APPENDIX

Legal opinion on the status of the associate states and the arrangements governing their participation in the military operations of WEU and its activities in the field of armaments by Mr Adam, former legal adviser to the French Ministry of Foreign Affairs, the Council of Europe and the UN (UNCTAD)


Draft Recommendation

on the political and legal consequences of WEU's enlargement to take in non-signatory countries of the modified Brussels Treaty - reply to the annual report of the Council

The Assembly,

Deploring the exceptionally long delay in the Council's transmission of the second part of its 43rd annual report;

Noting that the Council regularly transmits the draft annual report drawn up by the Chairmanship-in-Office to all 28 member, associate member, observer and associate partner countries before adopting it, and considering that this implies that the countries that are not signatories of the Treaty can, if they so wish, give their opinion on all the elements in the report using the appropriate means;

Recalling that the Council, taking as its basis Article IX of the Treaty, has always considered that its annual report can be adopted only by the ten signatories of the Treaty;

Taking note of the statement made by the Secretary-General on 4 May 1998 according to which WEU now has the military means necessary to carry out Petersberg missions, and of the fact that both the second part of the 43rd and the first part of the 44th annual reports would appear, in the main, to confirm that statement;

Noting that the paralysis that seizes the Council each time there is any question of undertaking such missions makes it difficult for public opinion to grasp the scope of the measures taken in the context of the reactivation of WEU;

Regretting the time it is taking to establish the procedures for making NATO assets available to WEU in the event of operational need;

Considering that Article J.4 of the Maastricht Treaty, which states that WEU is an integral part of the development of the European Union, does not constitute an incidental revision of the modified Brussels Treaty because being part of the development of an organisation is not tantamount to being part of the organisation itself, as the states concerned recognised in the Amsterdam Treaty and as the Council points out in its reply to Assembly Recommendation 626;

Recalling at the same time that the Assembly is a component part of WEU and that therefore it too is an integral part of the development of the European Union;

Recalling that the transfer of the exercise of the WEU Council's competence in certain areas to other international organisations - in particular to NATO in 1950, the Council of Europe in 1959 by virtue of the partial Agreements of 16 November and the European Community on 22 October 1970 - did not impair the Organisation's competence and that it is the Council's task to request the recipient organisations for an account of the way in which they have exercised that competence so that it can reply to recommendations and questions submitted to it by the Assembly that relate to those areas of competence conferred upon WEU by the modified Brussels Treaty, the exercise of which was transferred to other organisations;

Taking note that in its Erfurt Declaration the Council stressed that it did not consider the time had come to undertake a revision of the modified Brussels Treaty;

Considering that the Council is fully entitled to take the measures it deems appropriate with a view to the application of the modified Brussels Treaty and to promoting an order of peace and security in Europe, notwithstanding the development of its relations with NATO and the European Union;

Noting that the Council does not intend to make any change in the categories of WEU associate member, observer and associate partner status, as it indicates in its reply to Recommendation 626, whereas the prerogatives pertaining to those categories are constantly being extended;

Considering that the Council's successive statements concerning the rights the Organisation has granted to the associate member, observer or associate partner countries constitute proper international commitments that henceforth prevent them from being considered as third countries vis-ˆ-vis the modified Brussels Treaty except where formal declarations state the contrary;

Noting that the armed forces answerable to WEU have no status as such;

Considering that the strengthening of WEU's structures will enable the Organisation to make a more effective contribution to a security and defence Europe even if the integration of WEU in the European Union, for which the Maastricht and Amsterdam Treaties make provision, were to take place within a relatively short time;

Considering that the serious legal problems raised by the enlargement of WEU cannot be solved without certain additions to the Agreement of 11 May 1955 in order to extend to the countries concerned the internal legal personality of WEU and provide them with a guarantee of participation on an equal footing in WEU's activities and operations;

Considering that such extension is rendered urgent by the fact that three associate partner countries will be acquiring associate member status in the near future;

Noting that the Heads of State and of Government of the European Union decided in Pšrtschach, on 24 October 1998, to undertake a fresh review of Europe's security and defence requirements that would primarily concern WEU,

RECOMMENDS THAT THE COUNCIL

Provide the Assembly with precise information on:

(a) how countries that are not signatories of the modified Brussels Treaty participate in the preparation of the annual report prior to its adoption by the full members;

(b) the opinions of those countries that so request, irrespective of whether or not they are signatories of the modified Brussels Treaty, where they deviate from the opinions expressed in the report adopted by the Council at 10 and to do so in an appropriate form;

(c) at least the substance of the proposals it has conveyed to NATO with a view to defining the characteristics of the ESDI within the framework of NATO;

(d) the measures taken by the member states of WEAO in their national legislation to ensure that WEU's internal legal personality is properly recognised for all WEAG countries by all the member states of that body, in accordance with the commitments they entered into and which are referred to in the replies to Written Questions 344 and 345;

(e) the measures it has taken to identify the competent jurisdiction in the event of any violation of the applicable rules of law or of damages resulting from WEU military activity, which measures it said in its reply to Written Question 350 required further study by WEU bodies;

(f) the reasons why application of the provisions of the Agreement of 11 May 1955 to the Torrej—n Satellite Centre would appear to run up against obstacles;

(g) the nature of the role the Council intends to assign the Institute for Security Studies when it becomes an Academy;

(h) whether the Directorate of the Military Staff of WEU and the headquarters of WEU's multinational forces are subsidiary bodies of the Council and are therefore subject to the Agreement of 11 May 1955 on the status of WEU;

Contact the NATO Council, or the councils of the other organisations concerned, in order to obtain the necessary information to reply to recommendations from the Assembly or written questions from its members concerning matters that fall within the competence of WEU that is exercised by those organisations;

Request the European Union authorities to respond positively to invitations sent to one of its representatives by the Assembly for the purpose of addressing the latter on matters concerning the European Union's common foreign and security policy;

Inform the Assembly whether it considers that a country that is not a signatory of the modified Brussels Treaty can refer to Article VIII.3 of the modified Brussels Treaty to request that the Council be convened immediately;

Draw up a protocol amending the Agreement of 11 May 1955 for the sole purpose of applying that Agreement to the associate member, observer and associate partner countries of WEU, in accordance with their respective status, with a view to ensuring that WEU decisions are implemented effectively;

To that end and without delay, task a committee of experts to submit to it a proposal with a view to:

(a) amending Article I of the Agreement so as to make clear that "the Organisation", as defined therein, has an enlarged membership taking in the associate member, observer and associate partner countries, in accordance with the respective status of each one;

(b) specifying in the same Article that "the Council", "its subsidiary bodies" and "the Assembly" henceforth also comprise the associate member, observer and associate partner countries, each according to its status;

(c) specifying, again in Article I, that "the member states" means the High Contracting Parties, the associate members, the observers and the associate partners, each according to its status;

(d) drawing up, on the basis of the NATO model, an agreement on the status of forces answerable to WEU and a protocol on the status of international headquarters, both of which should be the subject of accession by the High Contracting Parties and the associate member, observer and associate partner countries of WEU.


Explanatory Memorandum

(submitted by Mr Urbain, Rapporteur)


I. Introduction


The question of WEU's future was raised at an informal meeting in Pšrtschach on 24 October 1998 of the Heads of State and of Government of the member countries of the European Union. It would appear that it was the British Prime Minister, Mr Blair, who drew attention to it in terms whose exact content is not known but which, stressing the ineffectiveness of WEU, referred to its abolition. There is no official record of the discussions in Pšrtschach that followed the presentation of Mr Blair's report and the only information about what it contained was provided by the Prime Minister in his statement to the press the following day. It is therefore impossible to analyse it. What is certain is that no specific decisions were taken at the Pšrtschach summit but that the Heads of State and of Government agreed there would be a review over the coming months or years of all the questions concerning Europe's defence, security and foreign policy and that this would include the question of WEU's future. However, there is nothing to indicate that this might produce any clearer results than those of the Maastricht and Amsterdam intergovernmental conferences as regards the fundamental question of what share of the areas of competence that currently belong to WEU would be transferred to NATO and the European Union respectively, and consequently nothing to suggest that WEU will not continue to be Europe's politico-military instrument for a long time to come.

In spite of everything, the fact that the possibility of WEU's disappearance was mentioned at the European summit deserves attention, as does the inference that it would be justified on account of the Organisation's ineffectiveness, even though one may ask whether it is really the framework of WEU that is to blame or whether it is not rather disagreements between the member countries that are the sole cause of its ineffectiveness - the United Kingdom's firm opposition, for example, was a major factor in preventing WEU from taking action in Bosnia and Herzegovina or Albania for as long as NATO decided not to intervene. If that were the case, any action the European Union might take in the areas for which WEU is currently responsible would be hampered, if not paralysed, by similar problems.

In any event, WEU exists and has developed considerably over the last ten years, both in terms of its enlargement to 28 countries and through the creation of military bodies which do not give any reason to believe they would be ineffective if given clear missions. There can be no question of abandoning this European achievement without an assurance that it would be wholly taken over by a European organisation capable of managing and further developing it. In the meantime, thought needs to be given to what now needs to be done in the WEU framework to build on that achievement.

The Office of the Clerk to the Assembly received the second part of the 43rd and the first part of the 44th annual reports of the Council on 24 October 1998. The late date on which the first of the two reports was sent to the Assembly is, indubitably, most regrettable. But the fact that both reports arrived at the same time provides a view of the Organisation's activities over a whole year, making it possible to make a better assessment of what WEU is and what it is doing. Before going into more detailed analysis, your Rapporteur would say that his overall impression is that progress is continuing - but at too slow a pace - and that WEU has now become a credible institution in the areas for which it is responsible. It is better placed than ever before to provide the necessary link between NATO and the European Union. In contrast, the operations it has undertaken, in particular in response to various crises, have been very disappointing. The Assembly can make specific proposals to improve the Organisation and your Rapporteur will endeavour to put these forward, but it cannot make good the weakness shown by the governments whenever there is a question of taking action.

On 29 September the Assembly received a reply from the Council to Recommendation 626 submitted by Mr Antretter, Rapporteur for the Political Committee, in May 1998. That recommendation contained a number of proposals designed to improve the conditions for the participation of the 28 WEU countries in the Organisation's work and the Council's response to them gives the Assembly a much clearer idea of what action it can expect the Council to take on this matter.

Some of the Assembly's proposals have in fact been rejected by the Council mainly because they entailed political decisions that did not fall within the remit of the WEU Council alone but also involved other institutions, the European Union in particular but NATO as well. On a number of important points the Council's reply specifies where its own responsibility lies and, consequently, what it can do in response to the Assembly's views. It is for this reason that your Rapporteur considers it more useful to focus on decisions that WEU could take on its own immediately and, in the light of the Council's reply, examine in greater detail some of the proposals to that end adopted by the Assembly in May 1998.

He has been glad to have been able to obtain the assistance of Mr Henri Adam, an expert in international law to whom the Assembly has already had recourse on a number of occasions. The Appendix to this document contains an opinion produced by Mr Adam in the first half of 1998 at the request of the President of the Assembly. This opinion is in fact an in-depth study of the legal conditions in which the enlargement of WEU has taken place. It highlights a number of serious weaknesses in those conditions and suggests solutions that appear relatively simple because they take into account the Council's current concerns, such as they are known, to take on board the disadvantages resulting from praiseworthy political and institutional decisions that have been applied in an inappropriate legal framework.

Everyone knows that until now the Council has not wished to acknowledge the weaknesses inherent in its initiatives. It was no doubt led to take them because of the changing nature of European affairs and because it believed that as WEU would soon be required to take its place in the European Union, there was no point in establishing too complex and rigid a legal framework for a situation liable to change very quickly.

No-one can claim that the situation in Europe has stabilised. The negotiations that resulted in the adoption of the Amsterdam Treaty showed that the European Union would not be ready to take on the competence conferred on WEU by the modified Brussels Treaty for some considerable time to come. EU enlargement to take in all the central and eastern European countries that are candidates for accession will probably take several decades. The admission of three central European countries, as decided in Madrid in 1997, will enable the EU to go ahead with limited enlargement but it is difficult to predict the starting date of negotiations with other countries that will probably be conducted in several stages.

On the other hand, there continue to be a number of reasons preventing the modified Brussels Treaty from being extended to cover countries that are not or are not about to become members of the European Union and NATO. The Council confirms this in its reply to Recommendation 626. So it is no longer possible to let WEU become increasingly bogged down in an institutional and legal quagmire that will weaken the Organisation and prevent it from playing the political and military role conferred upon it by the modified Brussels Treaty. If that were to happen, it would have nothing left to offer when the time actually comes to consider the question of its integration in a European Union with increased responsibilities and it would no longer be an integral part of the development of the European Union as the governments intended it should be when they adopted the Maastricht Treaty.

Furthermore, the legal restructuring of WEU has become a pressing need, first of all because of the extension of its activities and the growing involvement in them of countries that are not signatories of the Treaty, and secondly because of concerns about how Russia and certain eastern European countries are going to develop in political and economic terms: there is definitely no advantage to be had from leaving vague the conditions governing the participation of their neighbours from central Europe in WEU, which is Europe's security organisation.

These are the reasons why it is essential for the Assembly to continue with its analysis of the implications of WEU enlargement and urge the Council not to delay in giving proper effect to the measures it has taken in favour of the associate member, observer and associate partner countries by drawing up instruments establishing and guaranteeing their rights.


II. The second part of the 43rd and first part of the 44th annual reports of the Council


(a) The delay in transmission of the second part of the 43rd annual report

It has been a fairly common occurrence for the annual report of the Council or one of its two six-monthly parts to reach the Assembly late, that is to say on a date that does not allow it to be discussed at the part-session following the end of the year or six-month period for which the Council submits its report. On each such occasion the Assembly has reacted by protesting because it has been thwarted in its task of scrutinising the Council's activities. But the length of the delay in transmission of the second part of the Council's 43rd annual report already exceeds all previous cases since the Assembly received it six months late.

In fact the importance of the annual report lies not so much in the information it provides as in the obligation it imposes on the member countries to agree on a form of wording by which they must all abide. This obligation detracts from the quality of the information in the report but at the same time makes it an important political document that helps strengthen the Organisation and thereby the permanence of the decisions taken by member countries in the framework of WEU. It is a way of making progress towards a definition of a common security and defence policy of the member countries and, therefore, of carrying forward the process of European union. The Assembly has occasionally requested that, where there is no unanimity among the member countries, the annual report should indicate where the differences lie so that parliamentarians can take appropriate action in their own countries in an attempt to iron them out. The governments have always refused to comply with this request.

The delays in conveying the annual report to the Assembly have rarely, if ever, been the fault of the authority responsible for producing it (formerly the Secretariat-General and, for some ten years, the Chairmanship-in-Office although the Council has not informed the Assembly about this change in procedure or, more importantly, about the reasons for it). It is the difficulty of finding wording acceptable to all the member countries that has been the main, if not the only, cause for delay and this at least shows that the governments make a real effort to apply Article IX of the modified Brussels Treaty.

According to information your Rapporteur has received, in the absence of any official notification from the Council and mainly as a result of comments made by representatives of the Greek Chairmanship-in-Office at the meetings held in Rhodes in May 1998 and also because of what was said at the first part of the 44th session of the Assembly, it would seem that it was a lack of consensus among the governments concerning a minor point in the report which accounted for the delay in the Council's transmission of the second part of its 43rd annual report to the Assembly. However, there is a fundamental problem here because it would appear that the cause of the difficulty was a request from a country that is not a signatory of the modified Brussels Treaty for the inclusion of a note in the report.

While entering a caveat in the absence of any official information, your Rapporteur believes he can resume the facts of which he is in possession as follows:

it would appear that the Greek Chairmanship-in-Office circulated to national delegations in plenty of time, i.e. in February 1998, a draft report mentioning some action by the Secretary-General of WEU in connection with Cyprus. Everyone is aware that Cyprus has asked to become a WEU associate partner, a request which hardly meets with Turkey's approval in the present circumstances;

although Article IX of the modified Brussels Treaty requires only the signatories to adopt the annual report, the Council, in keeping with a decision taken on 12 March 1996, sends the draft report to the 18 member, associate member and observer countries. All 18 may propose amendments to the draft report. It is the amended draft that is then submitted to the Special Working Group, at 28, so that the associate partners can be informed of all WEU's activities, in line with the Kirchberg Declaration, and can express their points of view. It would seem that in many cases these points of view are taken into account in the final version which is conveyed to the Assembly after being formally adopted by the Ten. However, whether the 18 non-signatory countries were merely required to give an opinion on the report, which would not put any obligation on the Ten to take it into account, or whether all 28 were entitled to amend the draft is a question that was apparently not asked at the time. If that is indeed the case, only unanimity among the Ten would enable the annual report to be adopted;

Turkey was said to have made a request for a note to be included in the report, recording that it disagreed with the part of the text concerning Cyprus; such a procedure has already been used in Council reports;

Greece was allegedly opposed to the inclusion of such a note, arguing that associate members do not participate in the adoption of the annual report, a position that would appear to be consistent with the Treaty;

it was reported that other signatories insisted that Turkey's note be included but that Greece refused, which meant it was not possible for the Ten to reach the unanimous agreement required for the purpose of adopting the Council's annual report;

finally, after seven months of tergiversation, Turkey's reservation was included in the text of the report itself.

Your Rapporteur has no intention of going into detail on the Cyprus question, especially as he is unaware of the original wording of the Greek text and the Turkish note. He would merely point out that the precautions taken when Greece joined WEU, in November 1992, to prevent differences between member states of the Atlantic Alliance having repercussions for WEU's activities, proved inadequate on this occasion.

However, the position the Greek authorities adopted in maintaining that only the ten signatories of the modified Brussels Treaty are entitled to participate in the drafting and adoption of the Council's annual report is worth studying in detail because it highlights an increasing divergence between the practice followed by the Council, which meets at 28 and sometimes at 18 but only very exceptionally at 10, and the Treaty under which the Council was created and which refers only to the ten High Contracting Parties. Greece can certainly be reproached for having taken such a long time to adopt a sufficiently conciliatory approach. But in reminding the Council that associate member countries do not take part in the adoption procedure, it is taking a stance which until now has always been that of the Council itself and which the Assembly took into careful account when it defined in its Rules of Procedure the categories of status to be accorded to countries that are not signatories of the Treaty.

It should also be remembered that some such countries participate indirectly in the preparation of the annual report given that it is produced on the basis of reports on the activities of the Council's subsidiary bodies which the latter submit to the Council. To the extent that some non-signatory countries take part in the work of the subsidiary bodies, particularly in the case of WEAO, they contribute to the report itself although this does not necessarily mean they are involved in the adoption procedure. Nonetheless, it is logical that they should be consulted in this connection.

The Council does of course have a duty to examine any opinions expressed by countries that are not signatories of the Treaty but this does not mean it is obliged to take them into account (and there is nothing to indicate that those countries are entitled to oppose the adoption of the Council's report) unless they are relayed by at least one signatory country, which is reportedly what happened in the case of Turkey's request, according to what Mr Pangalos told the Assembly in May 1998. The Council for its part was wholly unequivocal in its reply to Written Question 300, which it sent the Assembly on 16 November 1992 and in which it stated that only countries that were signatories of the Treaty could take part in the drafting and adoption of the Council's annual report. It is clear that although the situation in WEU has changed since then, the Council has never deviated from the position it gave in its reply.

Thus the Council's failure to adopt the second part of its 43rd annual report on time is the result of growing uncertainty on the part of the governments about the legal instruments on which WEU is founded. Is the Organisation still based solely on the modified Brussels Treaty to which only ten countries have acceded, and does the basis for its activities consist of the same Treaty and the Agreement of 11 May 1955 on the Status of WEU, National Representatives and International Staff? Is it on that or another basis that WEU intends to build a European Security and Defence Identity within NATO? Is it already a military instrument of the European Union? Is it the precursor of a security organisation for maintaining peace in Europe that brings together 28 countries and soon more than that, or is it already that organisation? In any event the Council's reply to Recommendation 626 indicates in connection with the Amsterdam Treaty that the latter "will bear no legal consequences for WEU" which is based on a different treaty, i.e. the modified Brussels Treaty, and therefore on it alone.

These questions could be asked in purely political termsand answered differently depending on the exact time of their asking. Article IV of the Treaty makes provision for close cooperation between WEU and NATO and Articles I and II open the door to cooperation with the European Union. Article VIII allows WEU to work actively to promote peace both in Europe and the wider world. So there is no fundamental contradiction between the options themselves. However, their coexistence has given rise to a problem whenever it has been a case of giving them effect in terms of WEU enlargement because what has been required is the organisation of cooperation in the framework of WEU between countries that did not want to or could not subscribe to some of the options. Countries that were not members of NATO could not participate in a European Security and Defence Identity that was supposed to take shape within NATO and accession by such countries to the modified Brussels Treaty could not be accepted by the signatories of the Treaty in view of the decision initially taken on 20 December 1950 by the Western Union, and reaffirmed by the Resolution of 22 October 1954 on the application of Section IV of the Final Act of the London Conference, to transfer to NATO the exercise of the competence of the Western Union in defence matters. Furthermore, countries not belonging to the European Union could not take part in an EU common foreign and security policy, i.e. in the implementation of a policy that was not necessarily theirs, especially since the Maastricht and Amsterdam Treaties forged even closer ties between WEU and the European Union to the point of making WEU an integral part of the development of the Union (Article J.4.2 of the Maastricht Treaty). The reply to Recommendation 626 indicates that this is still the point of view taken by the Council.

The situation created by extending the Council's activities to countries that are not signatories of the Treaty was tolerable for a number of years during which those countries, which had various labels, acted as guests of the Council. But as was only to be expected, they sought improvements in the status they had been given and, in particular, proper participation in some of the bodies attached to WEU. The member countries for their part, together with the Assembly, wished to make these improvements and a number of them have gone through in recent years. Others are under consideration including, according to the Council Declaration of 22 July 1997, the Council Decision concerning the implementation of paragraph 14 (4th-6th indents) of that Declaration and what the Secretary-General said in his address to the Assembly in May 1998, an arrangement for the associate partners to participate in the activities of the Torrej—n Satellite Centre, while this possibility has been under negotiation since 1997 in the case of the observer countries.

But the purely political nature of these decisions, which have not been set down in an international agreement, has resulted in a complex pattern that is becoming more muddled with the increasing participation of 18 countries in an organisation of which they are not members. The Assembly has already had occasion to point to a number of problems that have arisen as a result. Your Rapporteur would remind you of them as follows:

(a) consulting countries that are not signatories of the Treaty in connection with the adoption of the Council's annual report raises the question of who adopts the report: the 10 countries that are obliged to submit it or the 28 that participate in most of the Council meetings and are consulted during its drafting;

(b) the Assembly itself poses another problem since its members do not enjoy any parliamentary immunity under their remit where they do not belong to delegations of countries that are signatories of the Treaty or when they sit in one of those countries, as the Council acknowledged in its reply to Written Question 345;

(c) in its Rules of Procedure the Assembly has had to attempt to define the rights, and notably the voting rights, of its associate members and permanent observers in such a way as they correspond, subject to any necessary adjustments, to those their countries enjoy in the Organisation as a whole so that Article IX of the Treaty cannot be called into question to its detriment. Whenever the Council has given associate members, observers and associate partners a title, if not a status in the proper sense of the word, it has made a point of leaving it to the Assembly to decide exactly what status it wished to accord them for it own part. But the fact that categories of status granted by the Council have no contractual basis and can change has made it very difficult for the Assembly to take decisions, at the time when they were necessary, accommodating its concern both to welcome new delegations and maintain its rights vis-ˆ-vis the Council;

(d) at its Munich Symposium, in Recommendation 622 and in Written Questions 344 and 345, the Assembly drew the Council's attention to the problems arising from access to WEU's legal system by WEAO, some of whose members are not signatories of the modified Brussels Treaty. The replies it received from the Council tend to show that so far the latter has not wished to acknowledge all the implications of those problems. Yet, on 22 July 1997, the Council decided to open WEAG to WEU observer countries and, at its ministerial meeting in Erfurt in November that year, to WEU associate partners subject to certain conditions;

(e) under the national laws of countries that are not signatories of the modified Brussels Treaty, WEU staff serving in those countries do not enjoy any immunity and staff who are nationals of non-signatory countries have no immunity in most of the signatory countries except where a specific arrangement has been made by the host country, as in Belgium by means of a government memorandum of 14 June 1993. Upon the creation of WEAO some countries undertook to change their national laws to compensate for the lack of an international agreement in this respect but the Assembly has not been informed of any follow-up to such promises;

(f) the prospect of deploying WEU forces, irrespective of the flag under which they would serve, raises the question of their status. Although there have been only a few occasions to date when such forces have been deployed, leaving aside some naval operations where the same problems did not arise, it is nonetheless essential for the future of the Organisation for it to be able to carry out joint military operations. But it has yet to adopt an agreement specifying the status of these forces, despite the Council's declared intention to do so in its reply to Written Question 350.

In view of the delay that prevented the Council from conveying the second part of its 43rd annual report to the Assembly, the latter is obliged to put a number of questions to the Council concerning WEU's enlargement and request it to provide an appropriate framework for enlargement so that the legal system operating in the Organisation matches the institutional and political realities created by the Council.

(b)The political conditions for

WEU's military activity

The method the Council has used to present its annual report no longer makes it possible, as was done in the past, for the Assembly's reply to be split between its committees because political and military considerations are now closely intertwined in many sections of the reports in question. Your Rapporteur will therefore endeavour to make a number of observations on the basis of both reports, to which it is his task to reply, without trespassing on matters that should be addressed by the Defence and Technological and Aerospace Committees.

There is no doubt that WEU's sphere of activity has now taken on a mainly military complexion, which is logical in view of the way the CFSP is developing. A comparison of the 43rd and 44th annual reports with those sent to the Assembly prior to WEU's reactivation shows that it is mainly the military dimension the Organisation has acquired that comes over strongly, together with its slow and progressive establishment as a real European security and defence organisation, the crowning achievement having been the creation of the WEU Military Committee on 13 May 1997. These developments led the Secretary-General to state the following at the colloquy on the European Security and Defence Identity, held in Madrid on 4 May 1998: "I should simply like to stress that today WEU is ready to act, if required, provided that the political will is there". Due note must be taken of this statement but also of two reservations expressed by the Secretary-General, namely that any such action would mainly concern crisis management and that "WEU requires above all to be more widely known and better understood".

However, it is not through a description of its operational capabilities that WEU can make itself known and understood but above all by the part it actually plays in crisis management, and it has to be said that its role has been very modest, if not non-existent, in recent crises whether they be those in Europe, the Balkan peninsula, the Mediterranean basin or Africa - regions that are particularly important for European security. Thus, during the Bosnian crisis, it was not until the United States decided to intervene directly that NATO was given an important mission while WEU's role was only marginal. During the Albanian crisis in 1997, WEU let some of its members, under Italy's leadership, mount Operation Alba which appears to have been decisive for restructuring the Albanian state, while WEU had to be content with a mission to reform the Albanian police force which, while certainly useful, was only of limited scope. Finally, in 1998 the Kosovo crisis drew no response from WEU other than a brief statement and only when the United States took a decision did NATO deploy a military force capable of preventing Serbia from continuing its intolerable repression.

It therefore has to be admitted that WEU proved extremely ineffective in these instances; however, its ineffectiveness was not due to a lack of resources or any vice in the Organisation itself but rather to a political blockage imposed by some of its members, who were willing to act within the framework of NATO but not within that of a European organisation. Yet some of those countries that are behind such blockages are now the very same that are denouncing WEU for being an ineffective organisation and using that argument for proposing its abolition with a transfer of the Organisation's military capabilities to NATO. For Europe this would mean precluding any credible foreign and security policy and even renouncing the prospect of a European identity within NATO since that identity can be based only on the existence of a defence Europe.

Conversely, the two parts of the annual reports show the efforts the Council has made to establish that identity and found it on specific measures. However, on that point the reports are not explicit enough and the Assembly should at least be informed of the substance of the documents conveyed by WEU to NATO in this respect even though it cannot but express satisfaction as to their existence. Your Rapporteur also believes that it can be inferred from the Council's reports that major progress has been made in defining the procedures that will allow WEU to use NATO assets for its own operations, a fact he welcomes. Nevertheless, he is obliged to point out that the negotiations between the two organisations on this matter are proceeding at an extraordinarily slow pace since they have now been going on for three years and have still not been completed.

(c) WEU and the European Union

Successive presidencies have set themselves the objective, among other things, of organising relations between WEU and the European Union in such a way that WEU can be used as the EU's common foreign and security policy instrument and the annual reports of the Council are full of information about the development of contacts between the two institutions. Clearly, the Assembly would like to have more details about the procedures applying to decisions to be taken jointly by the two organisations in order to deal with crises. In 1997, it attempted to analyse, on the basis of information provided by the Council, the procedures to be followed in such cases. They were extremely complicated and clearly implied that the time needed for their application was incompatible with the urgent action crisis situations require. The Assembly would like an assurance that the measures taken in 1997 and 1998 have considerably simplified these procedures.

Furthermore, in view of the wish the Council has expressed on a number of occasions, it is the Assembly's strong desire to be involved in the process of rapprochement between the European Union and WEU. It has made efforts to this end as regards both the European Parliament and EU bodies but the results achieved so far have been very disappointing.

Your Rapporteur would point out, in the light of a number of recent Council replies to Assembly recommendations, that WEU has never renounced any of the areas of competence conferred upon it by the modified Brussels Treaty. The Council, on the other hand, availed itself of the appropriate procedures to transfer the exercise of WEU's competence for military matters to NATO in 1950, for social and cultural affairs to the Council of Europe in 1960 and for economic affairs to the European Community by virtue of an agreement concluded between its members on 22 April 1970 in view of the opening of negotiations for the purpose of the United Kingdom's accession to the Community. These transfers were perfectly consistent with the treaties because all the WEU member countries at the time were members of NATO and the Council of Europe and were to become members of the EEC. Therefore, the Council, which consists of the governments of the member states and whose composition remains the same whether it meets at permanent representative level or at ministerial level, has a duty to report to the Assembly on the exercise of its competence even if it has been transferred to another framework. This means that the Council must request NATO, the Council of Europe or the European Union to provide it with the information it needs to reply to recommendations and written questions from the Assembly where they concern matters which are the responsibility of WEU but which are in practice addressed in the other organisations. The Council has accepted this interpretation several times and indeed complied with it up to 1989 for matters concerning NATO activities. Since then it has tended to use the pretext that certain matters are dealt with outside meetings of the Permanent Council as an excuse to eschew dialogue with the Assembly on questions that nonetheless remain within its area of competence.

In this connection your Rapporteur would refer to the opinion of an expert in international law, Mr Charles Rousseau, who was asked by the Assembly in 1956 to spell out the implications for WEU of the transfer of part of its activities to NATO. The legal opinion given indicated inter alia that:

"Under the categorical terms of Article VIII of the revised Brussels Treaty, introduced in 1954 - i.e. 5_ years after the conclusion of the North Atlantic Treaty - that, if it is possible to envisage transferring functions, or apportioning the exercise of the specifically military competences between the directing or consultative bodies of WEU and of NATO, it would quite clearly run counter to the provisions of the revised Brussels Treaty to envisage the complete suppression (by dissolution or merger) of a body essential to the operation of this Treaty, such as the Council of WEU created under the amended Article VIII.

It does not, however, follow that the conclusion of the North Atlantic Treaty, although modifying beyond any doubt the individual conditions under which competence in defence matters was exercised by Member States of the Brussels Treaty Organisation, at the same time paralysed the competences of the organs of the particular international community set up in 1948, or affect their relations per se. As a result, for example, the Council of WEU cannot now, any more than in the past, be considered free of the obligation to submit to the Assembly of WEU the explanations on defence matters which it is required to give (see Article IX of the revised Brussels Treaty) and from which no subsequent decision of the organisation has absolved it."

In connection with those areas of WEU's competence exercised by the EEC, the report submitted to the Assembly by Mr Cravatte on 6 December 1972 quoted that extract of the opinion. The Council replied as follows:

"As was stated in their reply to Recommendation 221 the Council will, in replying to recommendations of the Assembly, continue their practice of taking into account the results of consultations between Western European governments in the framework of other organisations. They believe, however, that the Assembly will recognise that compliance with the request that they should report to the Assembly on all consultations on foreign policy matters between members of the enlarged EEC presents political problems, because participation in such consultations extends to governments which are not members of WEU."

Hence the only argument put forward by the Council in this reply for not informing the Assembly of the activities of the EEC in the area of foreign policy was that some EEC members were not members of WEU. As this argument no longer holds good, it is difficult to see what reasons the Council could have for not replying properly to the Assembly's request.

In its reply to Recommendation 626 the Council states that its annual report contains "information on CFSP activities insofar as these are related to WEU's own work", which is excessively restrictive. The Council should also provide such information in its replies to recommendations and written questions where these concern WEU's areas of competence and not just its own work.

It is in the framework of the exercise of WEU competence by NATO that the NATO Secretary-General or SACEUR have addressed the Assembly on many occasions. The question does not arise in the same way for the Council of Europe because members of delegations to the Assembly of WEU have plenty of opportunities to address the authorities of that organisation directly in its Parliamentary Assembly of which they are also members. However, it does apply to the European Union and in particular the CFSP authorities, which consistently refuse to accept invitations from the Assembly. This would appear to be a poor response to the requirements laid down by the Maastricht Treaty, particularly those in Article J.4.2.

Indeed, according to that Article, WEU "is an integral part of the development of the Union". Now, WEU does not just consist of "the Council and its subsidiary bodies" but of "the Assembly" as well in accordance with Article I (a) of the Agreement of 11 May 1955 which defines the composition of "the Organisation", that is, WEU. It is therefore unacceptable for European Union bodies, irrespective of their status, to try and draw a distinction between the ministerial organs of WEU and its Assembly whose legitimacy they would appear in practice to challenge though they take care not to attack it from the legal point of view.

(d) Enlargement

Your Rapporteur does not wish to dwell in this section on matters concerning WEU's enlargement as these will be examined in more detail in the following chapters. He will confine himself here to stressing two points. The first is that there has been a very considerable change in the nature of the status accorded in recent years to countries invited to participate in an increasing number of WEU activities without acceding to the modified Brussels Treaty. The annual reports under examination point to a great deal of political consolidation in respect of the various categories of status, some of which has already taken place while other aspects are being studied or implemented. Some of this consolidation can be considered to be of real importance, in particular participation of the observer countries - most of which are not members of NATO - and the three associate partner countries soon to join NATO in the activities of the Council where these concern WEU's relations with the Alliance. This decision substantially weakens the argument hitherto used by the Council, according to which only NATO member countries could play a full part in WEU activities.

The second point your Rapporteur wishes to make is that the number of categories of country participating in WEU activities is far bigger than the existing three categories of status - associate member, observer and associate partner - imply. The original categories no longer coincide with the actual situation as regards countries participating in WEAG, attending many Council meetings or having contacts with the Satellite Centre or WEU's operational entities. Finally, countries involved in the enlargement process are being offered ˆ la carte participation in WEU's activities. This is an observation, not a criticism, as it would appear highly desirable for WEU to allow each individual country to take part in activities corresponding to its particular situation, possibilities and wishes. But, this being so, is it necessary to maintain theoretical categories of status for countries that are not signatories of the modified Brussels Treaty? It would seem more logical to have only a single associate status, with each country being asked to specify, in agreement with the Council, the scope and nature of its participation in WEU activities, subject to modifying them as soon as circumstances require.

(e) WEU's external relations

The Council's two half-yearly reports show there has been a major development in relations between WEU and three groups of nation: the CIS countries, the Mediterranean countries and the countries belonging to the Organisation of African Unity (OAU). The Assembly would have no hesitation in welcoming this information if it was convinced that the reports refer to serious progress since these developments reflect its own concerns, as can be seen from the report on WEU's relations with Russia which it adopted in May 1998, and from the fact that it held a colloquy on peacekeeping and security in Africa in September of the same year. Mediterranean questions are very frequently on the Assembly's agenda.

Relations with the CIS countries and, in particular, with Russia and Ukraine meet WEU's concern to extend to the whole of Europe the zone of peace and security it has helped establish in western Europe and is helping to develop in central and south-eastern Europe. In fact, only the new Serbo-Yugoslav state is still trying to pursue a policy of domination in Europe by having recourse to force, but it is to be hoped that the very high price that policy has exacted of its population over the past seven years will soon lead the government to abandon it. The Assembly, for its part, is endeavouring to develop its contacts with the assemblies of the Russian Parliament and has declared its willingness to give them an exceptional dimension in so far as its Russian partners agree. It can fully convince them of the merits only if it is better informed by the Council of the content of the latter's exchanges with Russian government authorities, failing which its initiatives look very flimsy to its Russian counterparts who are better informed about the intentions of their government. The communications the Assembly receives from the Council do not contain the information necessary to foster contacts between the Assembly and the Russian parliamentarians with whom it is in contact.

Furthermore, the agreements concluded between the Council and Ukraine with a view to securing that country's participation in WEU's strategic transport facilities have the important advantage of involving Ukraine in WEU's European security policy in a practical and effective way, while at the same time providing WEU with the means it is still seriously lacking.

In contrast, it is the substance of the activities of the Council's Mediterranean Group that poses a question. The Assembly had already established relations with Jordan before it joined in the Group's activities, but in view of what is said in the Council's annual reports, it is obliged to ask whether the main questions for the partners to the north and south of the Mediterranean are being properly addressed at a sufficiently high level on both sides in order for progress to be made, in those areas concerning WEU's prerogatives, towards what has been Europe's stated goal since the Barcelona Conference, namely, to extend to the Mediterranean area the benefits of a system of peace and security that is being established in Europe. The reactions members of the Assembly have heard from their dialogue partners in the southern Mediterranean countries give cause to think that this is not yet the case.

Finally, the Assembly will note with satisfaction the information provided in the Council's reports on the interest it is taking in peacekeeping in Africa and the role the OAU is being called upon to play in order to maintain peace. The events that have taken place over the last five years in central Africa nonetheless suggest that Europe is not prepared to do very much to assist the OAU, and the Council's reports will no doubt be insufficient to persuade the Assembly otherwise. On this point, as on many others, it is probably not the Organisation itself that is to blame so much as the increasing lack of enthusiasm the governments display whenever there is a question of Europe being seriously involved in a policy designed to extend the peace and security it enjoys to the countries in the southern Mediterranean region and Africa.

(f) Additional observations

Analysis of the Council's reports also prompts your Rapporteur to make two observations, or rather to express puzzlement about two specific points concerning the WEU Satellite Centre and the Institute for Security Studies respectively, because they raise questions whose implications the Assembly is unable to grasp, for lack of sufficient information.

It emerges from the relevant sections of the two reports studied that application of WEU's status to the Torrej—n Satellite Centre poses a number of problems in relations between the Centre and the Spanish authorities. The Assembly has not been informed of the nature of these problems which would appear to stem from the establishment of a headquarters agreement between WEU and the Spanish Government, which is surprising when one considers that the Centre has been in operation for five years. The Assembly can only wonder why the Agreement of 11 May 1955, which operates as a headquarters agreement for WEU (in its unenlarged state) in Paris, and did likewise in London and also in Brussels for as long as enlargement did not require a specific instrument on the part of the Belgian Government, cannot serve the same purpose in Madrid.

In addition, the Council has been saying for many years that it intends to transform the Institute for Security Studies into an Academy. It would appear that, on 3 March 1998, the Permanent Council had a first exchange of views on proposals submitted by the Institute's Director on this subject. In fact, the word "Academy" has very different connotations depending on the country in which it is used. The Council has never specified what it meant by this term: a school of advanced studies, a caucus of distinguished experts? The exact term used matters little but, in order to understand the Council's intentions in this area, it should specify the objective it is pursuing and the role it would assign to an institution bearing a title made famous by Plato but whose transposition to the context of WEU requires some explanation.


III. The political conditions for enlargement


Your Rapporteur's views on enlargement, and through him those of the Assembly, should not be misinterpreted. The Assembly is wholly in favour of enlargement and this is precisely why it is requesting the Council to consolidate the work it has been doing to this end since the ministerial meeting it held in Rome in 1992. There is no intention of challenging what the Council has done, nor even the way in which it has gone about the task. What the Assembly considers important is to stress that it is now time to build on the work that has been done, which overall has been a success since 18 countries have become involved in various ways and to an increasing extent in WEU's activities and others are waiting to join them. This should help make WEU an essential bedrock for the security of the whole of Europe, a task which, at their meeting in Erfurt, the ministers confirmed was indeed one those they assigned to WEU, as the second part of the 43rd annual report points out.

The Assembly has proposed, notably in Recommendation 626, making the conditions for accession to the modified Brussels Treaty more flexible for states soon to accede to NATO or the European Union, but more flexible arrangements should not invalidate the principle whose soundness is not disputed by anyone, namely that membership of both those organisations is necessary for a country to become a full member of WEU. The Council recently let it be known that it did not envisage to follow up this proposal (reply to Recommendation 626). In fact, it considers that the modified Brussels Treaty which brought WEU into existence in 1954 establishes a binding defence alliance essential to European security and the development of a European Union endowed with a common foreign and security policy, but that responsibility for exercising the military competence the Treaty confers upon WEU must continue to lie with NATO.

However, while the events of 1989 did away with any immediate threat to western Europe, the fact that a large number of crises erupted throughout.

 

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Directeur de la publication : Joël-François Dumont
Comité de rédaction : Jacques de Lestapis, Hugues Dumont, François de Vries (Bruxelles), Hans-Ulrich Helfer (Suisse), Michael Hellerforth (Allemagne).
Comité militaire : VAE Guy Labouérie (†), GAA François Mermet (2S), CF Patrice Théry (Asie).

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