Recap: Lucio Gussetti and Harold Koh on Every Inch of NATO Territory: Transatlantic Solidarity for the Defense of the European Continent

On April 19, 2023, European Studies Council Visiting Fellow, Lucio Gussetti presented a second talk related to his project titled, “Every Inch of NATO Territory: Transatlantic Solidarity for the Defense of the European Continent and Some Lessons From the Creation of the U.S. Federal Armed Forces.” Gussetti is Director and Principal Legal Adviser of the European Commission for Foreign and Security Policy and External Relations and a former member of the Private Office of the European Commission’s President. Harold Hongju Koh, Sterling Professor of International Law at Yale Law School and former Legal Adviser to the U.S. State Department, served as a discussant. Holly Harris, Master’s Student in the European and Russian Studies program at Yale, introduced the speakers and contributed to the presentation. Watch the full video recording on the Yale European Studies Council YouTube chanel.

President Biden has repeatedly confirmed the United States’ “rock solid” commitment “to defend every inch of NATO territory” based on Article 5 of the NATO Treaty. According to Gussetti, a similar, albeit not identical, solidarity clause is contained in Article 42 of the EU Treaty. Since 1949, the European continent has developed a structure of concentrical solidarity provisions: the intra-EU bond for the 27 EU member-states and the larger transatlantic bond between NATO members. Gussetti and Koh discussed the scope, the relations, and the future practical use of these legal commitments in the context of EU common defense and the war in Ukraine.

Gussetti began by discussing Article 5 of the North Atlantic Treaty, NATO’s founding document, written as follows:

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 and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Article 5 was used by both President Biden to speak about the Russian threat to Europe, and President Putin to talk about the NATO threat to Russian territory. In fact, if Ukraine joins NATO, U.S. military forces would be only 400 km (250 miles) from Moscow. While Article 5 is considered one of the cornerstones of the Atlantic Alliance, the analogous military solidarity clause in the Article 42, Paragraph 7 of the Treaty of European Union (TEU) is relatively less known. The Article 42/7 goes as follows:

If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

According to Gussetti, there is a lack of discussions juxtaposing these two articles.

Gussetti continued by examining similarities and differences between Article 5 of the NATO Treaty and Article 42/7 of the TEU.

In Article 5, the solidarity is triggered in case of an armed attack against one or more NATO member-states. Generally, NATO is considered an alliance mainly for the protection of Europe. Neveretheless, Article 5 was formally triggered only once, after the 9/11 attack, by request and for defense of the U.S. Importantly, the solidarity obligation upon NATO members is both collective and individual, meaning that an individual NATO member is expected to support the attacked member or members with its individual military forces while the collective action is possible but not required.

Under Article 42/7, the trigger of solidarity is an armed aggression, not an armed attack. The aggression is defined by the United Nations General Assembly Resolution 3314 from December 14, 1974, as follows:

Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

Thus, Article 42/7 covers situations that Article 5 does not consider, including three recent incidents: (1) the violent attacks by migrants, pushed by the Russian state, at the borders; (2) a Ryanair flight from Athens to Vilnius, intercepted by a Belarusian warplane and forced to land in Minsk; (3) the attacks on the Nord Stream Pipelines at the Danish Exclusive Economic Zone. While it may be debatable whether these incidents were armed attacks (Article 5), they were, certainly, aggressions (Article 42/7). Additionally, Article 42/7 defines the concept of obligation larger in scope, as compared to Article 5. The “obligation of aid and assistance by all the means in their power” is clearly stronger that the action which is limited to restoring and maintaining the NATO security.

In the second part of the presentation, Harris highlighted five key points in the historical evolution of the U.S. as a nation, with particular emphasis on the role that the military played in nation building and economy:

1783: End of Revolutionary War, Continental Army becomes Federal Army
1800s: Accelerated territorial expansion
1861-1865: Civil war
1863: Establishment of single currency
1914-1918: World War I; National Guard protects states; Federal army assumes territorial and expeditionary responsibilities.

The American transition from disjointed colony to cohesive nation did not happen just at a single moment of gaining independence. It developed and progressed over the course of more than a century in several different stages, and notably, none of these stages required constitutional changes. Harris argued that the stages of the U.S. nation building had clear parallels to the progression of European integration. Furthermore, Harris explained that the current structure of the U.S. military was primarily federal, including six service branches of U.S. Armed Forces, but still retained two confederal elements, the National Guard and the State Defense Forces. Harris emphasized the role of the military in the U.S. as a deterrent for infighting. The chain of command in the U.S. military structure allowed some responsibilities reserved for federal powers and some for state powers, which, according to Harris, was analogous to the relationship between the institution versus member-state relationships in the EU. Harris argued that the multi-layered structure strengthened the solidarity between states themselves, and between states and federal powers, which prevented both state-based nationalism and internal blurs.

Gussetti concluded the presentation by offering two lessons for the EU. The first lesson was about increasing internal cooperation in Europe by overarching decision-making and sharing common values. The second lesson pointed out the importance of the undisputed authority at the military structure, as shown in the U.S. case, and the necessity to overcome bureaucratic insufficiency within the EU.

In his discussion, Koh connected Gussetti’s paper with the Russia-Ukraine conflict. Koh demonstrated that Putin, attacking Ukraine in February 2022, did not expect Article 5 to have the potency it turned out to have. Putin hoped that his superior hard power weapons, massive ground forces, and “shock and awe” strategy, together with eventual support from China, would lead to quick victory. Though Putin misjudged the situation, he was not unreasonable in his expectations. According to Koh, this confirmed Gussetti’s argument about Article 5 being both the cornerstone of the NATO Treaty and the main point of contention between Russia and the West.

Responding to Harris’ points on EU/U.S. historical parallels, Koh mentioned his book “The National Security Constitution” (1990), recently revised for the 21st century, where he made similar point about two visions of the national security constitution in the U.S. Over time, the vision of shared power and balanced institutional participation had been challenged by the vision of executive unilateralism, or sole executive power. Koh agreed with Gussetti that current international crisis might be an opportunity for the development of the EU in the direction of more shared power and responsibility. Discussing the Russia-Ukraine conflict, Koh argued that the war may end with Ukraine not being part of NATO, but a non-Article 5 country with a special status. He agreed with Gussetti that these changes could be made without constitutional change, within the scope of existing law.

In the Q&A, the discussion evolved around multiple questions, including the prospects of the Russia-Ukraine conflict; the evolution of the U.S. military and economy in comparison with the current development of the EU common defense; the potential expansion of the European Peace Facility to fund European common defense as opposed to the creation of yet another new institution. Joining online, Bruno Angelet, Director of the Security and Defense Policy at the Ministry of Foreign Affairs of Belgium, asked to clarify how the EU could overcome present fragmentation of command and decision-making structures without changing the Treaty. Gussetti explained that the development of the European common defense would require multiple decisions over time that would not necessarily require changes in law. Koh concluded the discussion by summarizing important insights from Gussetti’s paper, including points about the efficiency of relational security for Ukraine, and the development of transatlantic common defense without engaging in World War III.

Watch video recording on the Yale European Studies Council YouTube chanel.