Freeriding isn’t allowed in an alliance, but neither is bullying and humiliating your allies
Donald Trump has caused uproar in Europe by his comments that the US under his lead would not come to the rescue of NATO states that are not contributing enough financially to NATO’s defence capacity.
This is not the first time he has said such things, and he made similar suggestions when he was the sitting president. This time he added some unhinged and provocative comments about how he would actually encourage Russia to do “whatever the hell it wants” with non-paying NATO member states. But leaving aside this appalling style and all antipathies, let’s consider if he has a point in law.
Reciprocal non-performance is a legitimate countermeasure in the law of nations. Unlike domestic law, the system of international law is largely “self-enforcing,” that is, with some significant exceptions, there is generally no neutral body to impose sanctions on states that violate their commitments to their peers. Rules of international law are therefore enforced much like social norms. States respect their international obligations because they consider it useful to do so as an international community, and beneficial for all. But because of that, the only meaningful sanction against a state that chooses to breach its international obligations is retaliation—countermeasures, typically in the form of corresponding non-performance by another state or states of some of their own obligations towards the violator. In the context of international agreements, this normally takes the form of a reciprocal non-performance of the same agreement.
The North Atlantic Treaty underpinning NATO is a multilateral international agreement. Neither this agreement, nor any other connected instrument of international law, obliges NATO member states to commit any fixed amount of money to defence. But Art. 3 of the treaty does oblige all member states to maintain and develop their individual and collective capacity to resist an armed attack. It stipulates that this is necessary for the state parties to achieve the object of the treaty (the alliance): to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law, to promote stability and well-being in the North Atlantic area, and to unite efforts for collective defence and for the preservation of peace and security.
The North Atlantic Treaty is an alliance agreement par excellence. Therefore, for the most part, it does not prescribe fixed and specific duties, but rather sets certain guiding principles which the state parties should follow, and from which more specific duties for those state parties can be derived for particular circumstances.
NATO member states have continuously discussed what their duty should be to maintain individual and joint defence capacity given the geopolitical situation. The results of those discussions since at least 2006 have been repeated statements of the intention to increase defence spending, and that each member state shall spend at least 2% of its GDP for that purpose. These declarations as such have never risen to the level of binding international commitments. Nevertheless, they must be viewed in the context of Art. 3, and can be considered consensual specifications of what that article actually requires in the particular circumstances.
Some NATO member states’ persistent failure to make good on those declarations, without a legitimate excuse, could therefore be seen as non-performance of the North Atlantic Treaty’s Art. 3 itself. Corresponding reciprocal non-performance by the abiding states would therefore be a legitimate countermeasure to such breach. Reciprocal non-performance would have to be corresponding, i.e. proportional. Refusal to honour the crucial Art. 5 does not seem proportional at first sight. But a warning that this might be the consequence if some states persist in failing to fulfil their commitments under the treaty does not seem excessive. And it does protect the interests of all NATO states that do invest sufficiently in defence—not just the interests of the United States.
But the problem is also in the manner and style in which such warnings of reciprocal non-performance are made. Unlike a one-off transaction, an alliance is based on continued trust and loyalty. This requires a certain way of dealing with one’s allies and making demands on them. It calls for nurturing a sense of fidelity and care for the common good, as opposed to self-interested bargaining.
It would be naive to think that other US presidents have not made the same demands and warnings as those voiced by Trump. But in an alliance, how such demands are asserted matters. Public bullying and belittling of one’s allies violates the essence of an alliance. Thus if Donald Trump were re-elected, and as the new US president made the same statements that he has recently made as a candidate, he would be violating the North Atlantic Treaty to the extent of repudiating it. And that would not be mere termination of a crucial international agreement, but a flagrant breach threatening world peace.
Stanisław Drozd, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners
