Europe’s legal U-turn on militarising development policy

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Heidi Hautala argues against the militarisation of the EU's aid budget. [European Parliament]

Europe’s development policy should stay true to its aims of eradicating poverty and raising people’s quality of life. The increasing military slant of EU development aid is both illegal and inhumane, writes Heidi Hautala.

Heidi Hautala is a Finnish Green MEP, a member of the European Parliament’s Committee on Development and a former Minister for International Development of Finland.

“EU and member states sign a joint strategy to eradicate poverty”, the EU Council declared when presenting the recently signed European Consensus on Development, which draws on the guidelines on EU development policy. What was left unsaid, were the aspirations to militarise EU’s development aid.

In July 2016 the Commission, pushed by an impatient letter by ten member states, proposed to amend the regulation establishing an instrument contributing to stability and peace (IcSP). The stated aim of this proposal was to be able to finance capacity building of security and military actors of partner countries through the general budget of the Union, namely, with development cooperation funds.

It is well understood that there can be no development without security, and vice versa. This does not, however, mean that security cooperation equals development cooperation. The newspeak on the “nexus between security and development” seems to have completely thrown overboard the need to strengthen human security and to eradicate violence to which many women, men and children fall victims in their daily lives.

Before the Commission’s proposal was published, ten member states had instructed the Commission to show “leadership to help clarify the pertinent provisions in the Treaty of the European Union, in particular article 41 para 2”. This paragraph states that expenditures arising from operations having military or defence implications cannot be charged from the Union’s budget.

Last year we saw this leadership in action, with great manipulation of the law. There have been at least five different legal notes and opinions from the institutions’ legal services. These newly formulated and reformulated legal readings are rapidly making their way into the political tug of war. There has been a complete U-turn in the interpretation of the applicable legal basis.

Originally, in March 2015, the firm view of the Commission’s legal service was that cooperation with security and military actors cannot be carried out under the legal framework of development cooperation. Instead, this should be conducted by the member states in their common foreign and security policy (CFSP) framework, through a budget provided by the member states themselves and not from the EU’s budget. One year later, in May 2016, their analysis went even further, stating that “the Treaties have not provided the necessary powers to finance the military of third countries”.

However, in 2017 their legal analysis had been overturned, stating that the proposal finds appropriate ways for the EU budget to contribute to capacity building for security actors, the military included, in partner countries.

According to the Council’s legal service’s opinion from December 2015, “it is not possible to adopt an instrument under the combined legal basis of the CFSP and development cooperation policy…”. Yet, this view was still present in the subsequent legal service opinion, delivered after the Commission’s announcement to amend the regulation. Either the scope of the instrument has to be “significantly reduced” or it can be adopted on a common security and foreign policy basis.

The development ministers settled the legal controversy by emphasising the development nature of the actions pursued. But not all were happy. Sweden issued a declaration saying that by “blurring the boundaries of development cooperation and security related activities … we risk undermining the development agenda as well as the effectiveness of CBSD (Capacity Building for Security and Development)”.

Member states could have opted for a new legal instrument with a commitment to finance it but they decided to stick to the idea of accessing EU development financing.

Also, the European Parliament’s own legal services have stated the exact same thing as the Commission’s legal services initially. Trying to attain foreign and security policy objectives through EU’s development policy does not survive legal scrutiny, “the proposed regulation predominantly pursues objectives that predominantly fall within the scope of the CFSP. It may therefore not be adopted under the legal basis of article 209 and article 212 TFEU”.

However several months later the very same service issued a careful opinion stating that these actions can be considered as compatible, possibly, with a strengthened link to development.

These twists show how important it is that legal opinions by EU institutions would be under public scrutiny that would alleviate dangers of attempts to expediently harness them for political purposes.

Now the European Parliament’s development committee is in a crucial role in ensuring that the activities under this enlarged scope of the instrument are limited to those allowed under the official development assistance criteria.

The European Parliament is deeply divided. Some see the Commission’s proposal as the new necessary orientation “to provide shoes and other equipment to Somali soldiers to combat Al-Shabaab”. Some may even see it as a step in advancing the EU defence dimension.

But some of us continue to defend the principles of development policy with human development and poverty alleviation at its core. Should this fail, I am afraid this instrument will become a first step on the way to instrumentalising human security for the purposes of military security. To do this by circumventing the EU Treaties is shameful.

Much of the responsibility rests with the EU’s High Representative Federica Mogherini, whose Global Strategy will steer the whole of the Union’s external action for the coming years. Militarising EU development policy is far from the public, high-minded statements to alleviate and eventually eradicate poverty.