European Papers (Jul 2024)
Providing Weapons to Ukraine: The First Exercise of Collective Self-defence by the European Union?
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 397-422 | Article | (Table of Contents) I. Introduction. – II. The EU decision to assist Ukraine: a watershed yet not unpredictable moment. – III. The international relevance of the EU assistance to Ukraine. – IV. A measure of collective self-defence? – V. Attributing the assistance in favour of Ukraine to the EU Member States: the general criteria of arts 4 ARS and 6 ARIO. – VI. Attributing the assistance in favour of Ukraine to the EU Member States: the con-trol-based criteria. – VI.1. The effective control test. – VI.2. The overall control test. – VII. Attributing the assistance in favour of Ukraine to the European Union: the adoption criterion. – VII.1. The legal features of the adoption criterion. – VII.2. Assessing the animus adottandi. – VII.3. The adoption made by Deci-sion 338. – VII.4. The characteristics of the adoption of States’ conduct. – VII.5. The requirement of in-jured States’ or integrational organisations’ consent. – VIII. The effects of Decision 338 on international law on collective self-defence. – VIII.1. Conclusion n. 4(2) and Decision 338: the conditions for relevance. – VIII.2. Conclusion n. 4(2) and Decision 338: the conditions for great relevance. – IX. Concluding re-marks. | (Abstract) The European Union's decision to supply weapons and military equipment to the Ukrainian army, which is engaged in repelling Russian aggression, could amount to an international use of force, albeit minoris generis. In this case, the question arises as to whether it is admissible under international law on the use of force. One possible legal basis is the legal regime of collective self-defence. However, accord-ing to the classical interpretation, international law only grants States the power to act in self-defence, and the assistance benefiting Ukraine provided under Council Decision 2022/338 does not seem to be attributable to the EU Member States, even if they have brought weapons onto Ukrainian territory. On the contrary, military support for the Ukrainian army seems entirely attributable to the Union, which would have adopted the conduct of its Member States as States and international organisations might do with the conduct of individuals under international law of responsibility. This Article argues that the Council's decision to supply weapons to the Ukrainian army can be regarded as a first attempt to amend customary law, precisely to allow international organisations to act in collective self-defence in certain limited cases.
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