Published by The Lawfare Institute
in Cooperation With
President-elect Joe Biden will face several foreign policy challenges come January. Amid the myriad issues, the former vice president has consistently prioritized his desire to reaffirm the United States’s commitment to the North Atlantic Treaty Organization (NATO). For its part, NATO has already announced its plans to seek an early summit with the Biden administration shortly after inauguration to review potential proposals to reform the alliance. The agenda will probably also include NATO efforts to coordinate its policies in the aftermath of the Pentagon’s recent announcements that the U.S. would be withdrawing forces from Afghanistan and Iraq. NATO Secretary General Jens Stoltenberg has warned that the expedited drawdowns could be dangerous to NATO troops left behind in those countries.
NATO has faced several external challenges in recent years. These challenges have been exacerbated and invited by President Trump’s threats to withdraw the United States from the treaty and his perception that the organization is of little strategic value. To both NATO allies and adversaries alike, the Trump administration’s threats have gone beyond rhetoric and have revealed the potential that the United States could walk away from the organization that it helped create. For instance, Trump’s former national security adviser, John Bolton, echoed this sentiment, warning that Trump would likely formally withdraw the United States from the treaty in a second term. (Jack Goldsmith and Curtis Bradley previously analyzed the constitutional issues surrounding executive power and unilateral withdrawal from NATO.)
Adversaries like Russia have taken advantage of the alliance’s internal fault lines. Russia continues to sow doubts about the U.S. commitment to the alliance and has taken increasingly provocative military actions in Europe and the Middle East in order to test NATO’s limits. Beyond the familiar struggle between NATO and Russia, the Trump administration’s approach has sparked doubts that have also revealed an internal problem: a divergence in long-term security needs among the treaty partners. Specifically, Turkey has charted an independent course and Europe has simultaneously begun to fear its reliance on the United States for its long-term security needs. These problems are not without precedent, but according to an internal NATO report about the alliance’s future and the Harvard Belfer Center, these trends have each been influenced, at least in part, by a perceived lack of direction from the United States.
As the U.S. transitions to a new administration, this post will reflect on the Trump administration’s approach to NATO over the last four years, examine its impact and evaluate claims about whether the treaty itself provides legal mechanisms to address these issues. It will also provide a brief summary of “NATO 2030: United for a New Era,” a newly released internal report about the alliance.
Trump’s Focus on Defense Spending and Force Deployments
President Trump’s critical approach to NATO, as Lawfare’s Scott Anderson characterized in 2018, has been underpinned by the assumption that “the alliance is more of a liability on the U.S. ledger sheet than a lynchpin of a shared transatlantic strategy.” This assumption has manifested itself in the administration’s prioritization of NATO resource allocations—in the form of both individual states’ defense spending and troop deployments. Those concerns about resource allocations have taken precedence over other issues such as democratic backsliding in Turkey, Poland and Hungary and the need to develop a new unified plan to address evolving geopolitical challenges.
The Trump administration has pressured member states to contribute at least 2 percent of their gross domestic product (GDP) to defense spending while concurrently preparing to downsize the U.S. force presence from NATO theaters such as Afghanistan, Iraq and Germany. The message: The United States wants NATO countries to do more for their own security and, in Iraq and Afghanistan, to take on a larger security role to balance out any U.S. withdrawals.
The result? In short, the Trump administration has made progress in bolstering NATO’s defense spending. Trump did not create an arbitrary policy for NATO spending but instead sought strict enforcement of a 2014 NATO pledge in response to the Russian annexation of Crimea by member states to increase defense spending. In that year, only three NATO countries—the United States, the United Kingdom and Greece—spent 2 percent of their GDP on defense expenditures. When the Trump administration came into office in 2017, one additional country, Estonia, had joined the list of two-percenters. Trump’s pressure began almost immediately after he took office. By May 2017, he accused NATO member states of “owing massive amounts” and not “paying what they should be paying.”
This year, 10 NATO countries—Estonia, France, Hungary, Latvia, Lithuania, Norway, Poland, Romania, the United Kingdom and the United States—are projected to spend 2 percent of their GDP on defense expenditures. Most notably, France will spend 2.11 percent of its GDP on defense for the first time since the 2014 pledge was announced. While these countries’ decisions to increase spending are not exclusively the result of Trump’s pressure, his efforts have contributed to the alliance that Biden will inherit in January 2021.
President-elect Biden will also inherit the Trump administration’s efforts to downsize U.S. forces in Iraq, Afghanistan and Germany while calling on NATO to expand its missions abroad. In 2018, amid Trump’s calls for NATO to do more in the Middle East, the alliance agreed to launch the NATO Mission in Iraq (NMI) a noncombat advisory, training and capacity-building operation designed to prepare Iraqi forces to prevent the return of the Islamic State. NATO has worked to expand the NMI while Trump continues toward withdrawing all U.S. forces from the country.
A similar story has unfolded in Afghanistan, where Trump, since taking office, has called for a U.S. withdrawal from the country. NATO’s Resolute Support Mission in Afghanistan (RSM) was launched shortly after the completion of the International Security Assistance Force (ISAF) in 2014 and was designed to provide follow-on noncombat support to train, advise and assist Afghan security forces and government institutions to take on primary responsibility for Afghanistan’s national defense. The imminent U.S. withdrawal from the country has increased pressure on the RSM not only to secure military and political conditions in the country but also to manage force protection concerns. In October, NATO defense ministers agreed to maintain forces in the country until conditions in Afghanistan were sufficiently stable.
In the view of member states, the issue in both Iraq and Afghanistan is not whether NATO can or should be substituted for U.S. forces abroad but, rather, if the alliance—originally designed to protect European countries from Russia—should be forced to spend additional time, money and resources in the Middle East, where its current train-and-advise presence is largely perceived as supporting U.S. priorities. As Stoltenberg put it in November, “We have been in Afghanistan for almost 20 years, and no NATO ally wants to stay any longer than necessary … [but] when the time is right, [the U.S. and NATO] should leave together in a coordinated and orderly way.”
Trump’s plan to reduce U.S. forces in Germany—in response to Berlin’s failure to increase its defense spending—is also adding to these concerns. Germany currently hosts the largest U.S. military footprint in Europe, with approximately 34,000 troops, and is seen as an integral pillar of NATO’s deterrence strategy against Russia. The planned reduction—cutting the force by 11,900 in total—will be offset by modest increases in countries such as Poland and Italy.
The Trump administration’s approach has prompted leaders such as French President Emmanuel Macron to call for Europe to take charge of its own security. In particular, Macron is no longer convinced that the United States’s support is sufficient to preserve Europe’s long-term safety. In late 2019, he warned that—as a result of the U.S. approach to the alliance—the organization was at risk of becoming inert. Macron noted that the alliance “only works if the guarantor of last resort functions as such. … [W]e should reassess the reality of what NATO is in light of the commitment of the United States.”
These statements point to Europe’s newfound realization: the need to ensure that its own defense is not entirely reliant on the United States. In the past several years, Macron has championed a new European defense framework under the European Union, which would include a mutual defense treaty and greater defense spending to build a “European Army.” While his proposal is still in a nascent stage and is mired by Europe’s own internal disagreements, it is nonetheless a potential concern for the United States.
The Turkish Dilemma Within NATO
As the U.S. has focused on bolstering NATO’s defense spending, two critical cracks have developed inside the alliance. First, as discussed above, European countries have begun to question the reliability of U.S. military protection. Second, Turkey has emerged as an increasingly assertive military actor in its near abroad and has pursued foreign policy goals that have been at odds with the alliance. As recently as Dec. 1, Turkey’s behavior prompted a clash between Secretary of State Mike Pompeo and Turkish Foreign Minister Mevlut Cavusoglu during the NATO foreign ministers meeting.
Since 2016, Turkey has begun to assert its military independence. Turkish President Recep Tayyip Erdogan’s actions have included intervention in Syria in opposition to coalition-backed Kurdish forces fighting the Islamic State; the purchase and testing of the Russian S-400 air defense system, at the risk of exposing NATO air defense technology to Moscow; his support for a Turkish right to develop nuclear weapons; the deployment of naval assets to the Eastern Mediterranean, agitating Greece, a fellow NATO member; and most recently, his support of Azerbaijan’s recent military campaign against Armenia. Erdogan has made all of these moves while at times obstructing NATO’s consensus-based decision-making process and enacting anti-democratic reforms domestically.
What do these actions mean for the alliance? Turkey may no longer feel constrained to align its foreign and security policies with NATO and is beginning to carve out its own, distinct security interests.
While this is not NATO’s first time dealing with tensions within the partnership, it remains a threat to the alliance’s ability to remain a cohesive unit. From the early years of the alliance until the 1970s, NATO powers were forced to accommodate the Estado Novo dictatorship in Portugal even as it fought against liberation movements in Angola, Guinea-Bissau and Mozambique. At the time, Portugal’s geostrategic assets were deemed invaluable to the Cold War efforts. Likewise, in 1967, NATO’s relationship to Greece survived a coup-d’état that brought a military junta to power in the country. The alliance also survived Turkish and Greek tensions ever since Turkey invaded Cyprus in 1974.
Portugal and Greece and even previous Turkish regimes were not able to challenge NATO core security interests. Ankara has been able to do so more recently with actions such as integrating a Russian military system into its NATO defense infrastructure. Turkey’s assertiveness has drawn repeated calls over the past few years—including comments from U.S. lawmakers—to expel the country from the alliance. While the ability to do so remains a murky topic of international law, given the North Atlantic Treaty’s silence on the procedure for expulsion, the Biden administration will need great political finesse to handle this emerging problem in the alliance.
International Legal and Political Recourse
An independent European security initiative poses potential challenges in the distance, but the Biden administration will be faced with immediate calls from within NATO to take greater actions to reign in Turkey’s assertiveness and Hungary and Poland’s democratic backsliding. What options exist for the Biden administration to address these challenges? In short, the solution will probably be better suited to political rather than legal remedies. Given the nearly perennial questions about whether a country can be suspended or terminated from NATO, it is important to consider the international legal considerations.
The North Atlantic Treaty, which went into force in 1949 among the 12 original signatories (Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, the U.K. and the U.S.) is rather succinct: It announces the alliance’s commitment to shared democratic values and collective security; aligns itself with the United Nations framework; creates organizing and decision-making mechanisms; outlines procedures for the expansion of membership; and permits withdrawal by a party after 1969 with one year in advance notice. The heart of the treaty is the commitment to a mutual defense arrangement. This provision is spelled out in Article 5:
Parties agree 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 each of them … will assist the party or parties so attacked by taking … such action as it deems necessary[.]
Article 6 elaborates further that this protection extends to “the territory of any of the Parties in Europe or North America, on the Algerian Departments of France, on the territory of Turkey or on the islands under jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer.” Together, these two provisions represent the primary function of the North Atlantic Treaty and authorize member states to take military action as a measure of self-defense, allowed under the U.N. Charter, on behalf of the aggrieved country.
Article 8, which often gets less attention, is worth explaining as it attempts to give the North Atlantic Treaty a supremacy-like character over other commitments that the member states have made or may make in the future. It states:
Each Party declares that none of the international engagements now in force between it and any other of the Parties or any third State is in conflict with the provisions of this Treaty, and undertakes not to enter into any international engagement in conflict with this Treaty.
The provision has a two-part requirement: First, the parties, at the time of ratification, must certify that their NATO obligations will not conflict with any previously agreed-to treaties with third parties; and second, the parties agree not to enter into any future international engagements that would be in conflict with the treaty. While this future-oriented clause attempts to preempt conflicts with the treaty, the text does not declare a formal dispute resolution mechanism nor does it enable any enforcement actions should a conflict arise. This is noticeably weaker than, for example, the U.N. Charter, which in Article 103 declares that, in the event of a conflict between it and any other international treaty, obligations to the U.N. Charter shall prevail. Most significantly, the article lacks key language necessary to make it legally binding. Specifically, it does not state that parties “shall” or “will” refrain from international engagements in conflict with the treaty. This difference is apparent within the treaty itself when compared to Article 5, which states that parties “will” assist one another if attacked.
Though probably not legally binding per se, the provision provides member states with some ground to confront a fellow member over actions that are inconsistent with the treaty. To do so requires some evaluation of the text’s definition of “international engagement.” According to a 2019 Emory International Law Review article, two predecessor treaties provide helpful context to the North Atlantic Treaty: the Brussels Treaty, signed in 1948 among the U.K., France, Belgium and the Netherlands, and the Treaty of Dunkirk signed a year earlier between the U.K. and France. Both of these treaties described an obligation by parties to not “conclude any alliance or take part in any coalition directed against the other[.]” However, the drafters of the North Atlantic Treaty, who had access to the previously used language opted instead for a broader characterization in the final text. In doing so, they allowed some room for a broader debate on the range of actions that could provide grounds to find that a party’s actions were in tension with its commitments under the treaty.
The North Atlantic Treaty does not otherwise provide any express terms for a party’s potential suspension or expulsion, nor does it directly address amendment procedures that could potentially allow for such provisions to be added. Given this silence, NATO members must turn to international law to provide useful default rules. While the Vienna Convention on the Law of Treaties (VCLT) does this, it has not been ratified by six NATO countries (France, Iceland, Norway, Romania, Turkey and the United States). That said, the U.S. Department of State has indicated that it considers many of the provisions of the VCLT to be legally binding customary international law, as have several other non-parties. Conforming with this approach, the Third Restatement of U.S. Foreign Relations Law describes U.S. laws concerning treaty rights, such as those concerning material breach (§ 335) and treaty modification (§ 334) discussed below, in a manner consistent with VCLT provisions.
Assuming that these provisions will apply, the question next becomes what constitutes a material breach of the NATO treaty? Some observers have argued that divergence from NATO’s core democratic principles in countries such as Hungary, Poland and Turkey should provide grounds to expel those countries from the organization, pointing to the North Atlantic Treaty’s preamble. However, both the language of the text and NATO member state practice dating back to the Estado Novo regime’s inclusion as a founding member of the organization undermine this view. First, the language itself is not binding—that is, it does not state expressly that parties “shall” or “will” conform to the democratic principles set out by the treaty. Furthermore, NATO’s own history, as discussed above, of ignoring anti-democratic developments in member states and opting instead to take a long-term view of potentially temporary domestic political developments in any one member country undermines this view.
Still others have objected to Turkey’s assertive foreign and military policies in recent years and called for disciplinary action to be taken within NATO. U.S. and European officials’ outcry has been in response to Erdogan’s military moves that have raised possible arguments that Ankara is in material breach of its treaty obligations.
While Article 8 has no formal or specific dispute resolution mechanism, member states may attempt to raise their objections to Turkey’s actions and to cite them as a subversion of the object and purpose of the NATO treaty. However, Article 8’s lack of legally binding language makes this a difficult hurdle to overcome. Even if member states agreed to interpret the article as providing grounds for material breach, they would then need to have unanimous agreement to either suspend or terminate Turkey’s membership. In other words, member states’ ability to raise Turkish actions as providing legal grounds to suspend or terminate Ankara from the agreement is rather tenuous. It will instead remain largely a question of political will and prudence.
NATO countries may consider amending the treaty to include express disciplinary provisions—such as suspension or termination clauses—as a way of creating leverage and signaling a willingness to enforce treaty obligations more strictly. Both the VCLT and historical precedent would play a role here. For its part, the VCLT provides that parties to a multilateral treaty must garner unanimous support for the amended text to have effect on all parties. If parties fail to garner unanimous support—which here they very well might—then the amended text would be in effect only among the countries that so agreed. In that sense, amending the treaty to call for stricter standards may not be a practicable option.
NATO has twice before amended its treaty: the first time in the actual text of the agreement and the second through a declaration as to the interpretive effect of the text. The first instance was in 1952 during the accession of Turkey and Greece to the alliance, whereby the text of the treaty was amended using the treaty ratification process. Specifically, as a part of the protocol that recognized Turkey’s and Greece’s additions to the organization, parties amended Article 6 to include language adding security protections for the territory of Turkey expressly in the treaty. A decade later, in 1964, when France relinquished control over its colony in Algeria, NATO announced that “the Algerian Department of France”—though still in the text of the treaty—no longer had any legal protection.
Short of attempts either to expel a nonconforming member from the treaty or to amend its terms, NATO members can resort to other mechanisms to resolve their disputes. For example, many European countries suspended their arms exports to Turkey in 2019 to signal their dissatisfaction with Ankara’s policies. The United States also suspended the sale of F-35 fighter aircraft after Turkey began to install the Russian-made S-400 air defense system. Given the tenuous legal ground that NATO member states currently find themselves in, political actions may be a more realistic option to deal with internal issues in the near term.
This month, NATO released its NATO 2030 report—which Secretary General Stoltenberg commissioned shortly after French President Macron’s criticisms of the organization last year. The report provides both wide-ranging and strategic recommendations for how to reform NATO’s military mandate and strengthen its political unity. For instance, in the report’s “Introductions and Main Findings,” the authors acknowledge that defense spending has increased in recent years, but they also argue that members of the alliance “must move decisively to bolster the political dimension of NATO.” The report is expected to be presented to heads of state in the coming year and will present the incoming Biden administration with an early opportunity to weigh in on the future of the transatlantic alliance.
The report provides several key recommendations, four of which are discussed below, to address tensions between member states and streamline decision-making. Specifically, the report recognizes that “single-country blockages involving external bilateral disputes” have become more common and have inhibited the alliance’s ability to make timely decisions.
First, the report recommends that NATO members should bolster the secretary general’s chief executive role to make decisions on more routine matters—such as budgetary and personnel issues. It also recommends that the secretary general be able to “bring difficult issues into the open at an early stage where possible.” In doing so, the report calls for providing the secretary general with more room to make decisions that can free up some of the logjam currently affecting the alliance. The secretary general would also then be empowered to serve as a mediator in disputes between parties.
Second, it recommends that NATO create a more “structured mechanism to support the establishment of coalitions inside existing Alliance structures.” The report notes that enabling allies to bring new operations under the auspices of NATO—even when not every ally wants to participate—would allow the organization to be more flexible. Specifically, the report explains that subgroups of allies would be allowed to pursue their own objectives by making use of NATO military structures and decision-making processes but without taxing every country on issues that are not necessarily a core national security priority to them.
Third, the report suggests that NATO should raise the threshold for a single country’s ability to block NATO actions. When a member nation wants to block a NATO action, the threshold will be raised to the ministerial level so as to make any internal attempts to stymie NATO decisions more transparent and raise the political costs of doing so. In addition, the report calls for holding an equal number of foreign ministerial meetings and defense ministerial meetings so as to ensure that member state diplomats can more regularly evaluate the “political health and development” of the organization.
Finally, the report calls for NATO to implement time-limited crisis decision-making—whereby the organization would explore options to ensure that it can achieve consensus within 24 hours during a crisis. This recommendation, in conjunction with the others, is meant to enable NATO, as an ever-diversifying organization, to act decisively.
In summary, the report and its 138 recommendations provide a potential road map from which the United States and its transatlantic allies can explore resolving NATO’s many strategic obstacles. These recommendations—all of which call for actions under the auspices of the current treaty—provide a timely and alternative approach to tackling the many challenges facing the organization short of having to resort to untested legal mechanisms.
The Trump administration’s approach to the transatlantic alliance has resulted in an increase in NATO members’ defense spending. However, the administration’s transactional approach has also caused fear in U.S. allies that they can no longer rely on the United States’s guidance for their long-term security interests. As the Biden administration prepares to take the helm of U.S. foreign policy, it will be challenged not only by myriad security threats posed by Russia, China, Iran and North Korea but also by the need to address both the United States’s commitment to NATO and developing divisions within the alliance.