Timothy Garcia, Associate Editor, Michigan Journal of International Law
“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all. . .”[i]
In the wake of Russia’s annexation of Crimea in March, a 2008 North Atlantic Treaty Organization (NATO) decision suddenly took on tremendous significance. Six years ago, NATO refused Ukraine a path to membership due to German and French misgivings. The French and German fears likely arose in part from Moscow’s opposition to Ukrainian or Georgian membership in NATO.[ii] Since the recent 2014 annexation, NATO members have split in their analysis. France and Germany believe NATO would now be at war with Russia had they admitted Ukraine while the United States and several of the Eastern European nations argue that Ukraine’s membership in NATO would have deterred Russian aggression in the region.[iii] White this question highlights the issue and debate in Europe, it is far more important for its future implications for collective security in Europe than for its particular facts.
Thus far, the European Union (EU) has been content to keep NATO as “the transatlantic framework for strong collective defence.”[iv] However, only 22 of the 28 States in the European Union are members of NATO, and certain members of NATO, such as Turkey, the United States, and Canada, are not members of the EU. Ukraine is not a member of either.[v] Although the European Parliament approved a proposal in 2009 to organize the Synchronised Armed Forces Europe (SAFE), a military synchronization plan that would create an EU military force, rather than relying on ad hoc coalitions, to date, there have been no actions taken to bring SAFE out of the realm of theory, thus leaving open the question of European collective security.[vi] In the face of the security concerns raised by the annexation of Crimea, this blog post will endeavor to answer two questions: (1) Can NATO, in its limited capacities under the North Atlantic Treaty, act sufficiently to accomplish European collective security?; and (2) Is NATO a plausible option considering the differences in membership requirements and actual membership in the EU and NATO?
The North Atlantic Treaty is designed to create a defensive military alliance among member states. To that end, Article 5 of the treaty provides for a mutual obligation of collective defense in the case of an armed attack against any member state. The treaty explicitly references Article 51 of the UN Charter, recognizing the right of collective self-defense.[vii] The UN Charter provides only the right of Member States to respond to an armed attack against the Member State. While this has been interpreted somewhat expansively by various nations, such as the Israeli claims of a right to self-defense in entering Uganda to rescue hostages in 1976, the requirement in the Charter remains the same.[viii] Assuming that the EU only wants military forces for the sake of responding to armed attacks against the members of NATO, such an arrangement would not run afoul of international law. Authority to act in self-defense is limited to the nation attacked and those other nations that are asked by the aggrieved nation to assist, meaning that, absent an explicit request from Ukraine, NATO cannot act for the collective security of Europe in Ukraine.[ix]
This raises the secondary issue of whether Ukraine has the authority to request such assistance in Crimea at this point. Since the annexation, which has been decried by the West as illegal, sovereignty over Crimea is disputed.[x] Had Ukraine been a member of NATO, the moment of annexation would have been sufficient to justify collective action in defense of one member of the alliance, though the first actions by the separatists could constitute an armed attack that would have justified a NATO response.[xi] As long as the EU simply wants to deter armed attack on member countries, then, NATO has the authority under Article 5 of the North Atlantic Treaty and Article 51 of the UN Charter to act in defense of the collective security of the members of NATO. That would seemingly require a complete overlap of European membership in the two organizations. However, that would still not completely solve the issue of collective security for all of Europe because not all European nations are members of the EU, and SAFE or a complete overlap in membership would not avoid the requirements of Article 51 of the UN Charter.[xii]
Even assuming that the EU would like to be tied militarily to NATO as a collective body, it is unclear whether such an approach is even plausible. New members of NATO may only be invited by unanimous agreement of the Member States.[xiii] Likewise, new members of the EU require unanimous consent of all EU members.[xiv] Were all members of NATO members of the EU and vice versa, it is likely that any new member of one would also be approved as a member of the other. The differences, however, between the membership of the two organizations does make gaining membership in both organizations concurrently unlikely simply because it is so difficult to gain membership in even one.[xv] Further, if France and Germany opposed the admission of Ukraine and Georgia into NATO six years ago for fear of being drawn into a war with Russia, it seems unlikely they would be willing to admit them now that Russia has increased its aggressive stance.[xvi]
Based on both the questionable wisdom of the use of NATO as a security force for Europe and the inherent difficulties in logistics of protection for nations in one organization but not in the other, the European Union should move forward with its SAFE program and achieve its goal of creating a true EU military force. NATO is not the right fit for the European Union, nor is the European Union as a whole the right fit for NATO.
[i] North Atlantic Treaty art. 5, Apr 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243 [hereinafter NAT].
[ii]Nato Denies Georgia and Ukraine, BBC News (last updated Apr. 3, 2008, 1:28 PM GMT), http://news.bbc.co.uk/2/hi/europe/7328276.stm.
[iii] Christoph Hasselbach, US, Europe at Odds over NATO Expansion, Deutsche Welle (Sept. 9, 2014), http://dw.de/p/1D9WO.
[iv] NATO Summit, Wales, U.K. Sept. 4-5, 2014, Wales Summit Declaration, ¶2, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/351406/Wales_Summit_Declaration.pdf.
[v] EU Member Countries, EU, http://europa.eu/about-eu/countries/member-countries/index_en.htm (last updated Sept. 2, 2014); NATO Member Countries, NATO, http://www.nato.int/cps/en/natolive/nato_countries.htm (last updated Mar. 27, 2014).
[vi] See Bruno Waterfield, Blueprint for EU Army to Be Agreed, The Telegraph (Feb. 18, 2009, 3:07 PM GMT), http://www.telegraph.co.uk/news/worldnews/europe/eu/4689736/Blueprint-for-EU-army-to-be-agreed.html.
[vii] NAT art. 5; U.N. Charter art. 51
[viii] U.N. Charter art. 51; See, e.g., Leslie C. Green, Rescue at Entebbe–Legal Aspects, 6 Isr. Y.B. on Human Rights 312, 327 (1976).
[ix] U.N. Charter art. 51.
[x] UN General Assembly Declares Crimea Secession Invalid, Aid to Ukraine Boosted, Deutsche Welle (Mar. 27, 2014), http://dw.de/p/1BXVw.
[xi] Hasselbach, US, Europe at odds over NATO expansion.
[xii] EU Member Countries, supra note 5; U.N. Charter art. 51.
[xiii] NAT art. 10.
[xiv] Enlargement Policy: Steps Towards Joining, EU, http://ec.europa.eu/enlargement/policy/steps-towards-joining/index_en.htm (last updated June 27, 2013).
[xv] See Nato Denies Georgia and Ukraine, supra note 2.
[xvi] See id.