Amid Fears of Another World War, NATO Turns 73
April 4, 2022 marks the seventy-third anniversary of the founding of the North Atlantic Treaty Organization (NATO). From twelve founding signatories to thirty member countries located across North America and Europe, NATO has grown to be one of the most significant political and military alliances in the world. In recent years, NATO has been expanding in Eastern Europe, much to the dismay of Russian President Vladimir Putin. Russia’s invasion of Ukraine has thrown NATO into the international spotlight and has highlighted the real-world significance of the Alliance.
The flags of NATO (top left) and Ukraine (bottom right) merged together. Photo: Wikimedia Commons.
By: Nicole Gany
On this day in 1949, twelve nations signed the North Atlantic Treaty (also known as the Washington Treaty). At the time, Europe was still recovering from the aftermath of World War II and tensions were rising between Western Democracies and the communist Soviet Union. The core principles underlying the Treaty were peace, democracy, and cooperation. Under the Treaty, an armed attack on any one member would constitute an attack on all members, such that each member has an affirmative obligation to come to the defense of the attacked member. This “collective defense” provision, embodied in Article 5, was the cornerstone of the Treaty at the time of signing, but has been invoked only once in seventy-three years, in response to the 9/11 attacks in the United States. That could soon change.
Russia’s invasion of Ukraine has quickly become an international humanitarian crisis: most significantly affected are the people of Ukraine, who are seeing their cities destroyed, losing loved ones, and being forced to flee their homes, becoming refugees seeking asylum in foreign countries. Ukraine, which was formerly part of the Soviet Union, has had a significant relationship with NATO since its independence in 1991, with increased cooperation after Russia’s illegal annexation of Crimea in 2014.
But while Ukraine is a partner, it is not an official member of NATO and has never received a Membership Action Plan (the device through which NATO offers support to aspiring members), despite having expressed interest in joining the Alliance as early as 2002 and even being promised membership by NATO leaders in 2008. This means that NATO members have no legal obligation to defend Ukraine against the attack.
Even so, the war in Ukraine has caused NATO to spring into action. A number of NATO members have invoked Article 4 of the Treaty, which simply calls on members to “consult together whenever . . . the territorial integrity, political independence or security of any of the [members] is threatened,” but does not impose a duty to act upon members. Further, since the invasion, NATO has sent thousands of soldiers to its easternmost member states, as well as supplies, fighter jets, and naval equipment. Perhaps most significantly, NATO has sent massive amounts of weapons, equipment, and supplies to Ukraine, supporting the nation’s ability to defend itself without crossing the line of getting involved in the combat in a material way.
Given the unlikelihood of Ukraine’s near-future membership in NATO, which President Volodymyr Zelenskyy recently acknowledged, the most important question today is what might trigger the invocation of Article 5, thereby drawing NATO into the war and dramatically expanding the scope of the conflict. By the terms of the Treaty, an armed attack on any one member state imposes an obligation on all other member states to “assist the [member(s)] so attacked by taking forthwith . . . such action as [they deem] necessary, including the use of armed force, to restore and maintain the security of the North Atlantic Area.” Under Article 6, a triggering event would “include an armed attack on the territory of any of the [members]” or “on the forces, vessels, or aircraft of any of the [members] when in or over these territories . . .”
As events have unfolded over the past six weeks, and as peace talks between Russia and Ukraine have turned up largely fruitless, the threat of an Article 5 triggering event looms large. This is especially true as Russian forces have creeped toward the Ukrainian border with Poland (a NATO member). In assessing whether to intervene, NATO will likely have to grapple with a key legal issue: what actually constitutes an “armed attack” under the Treaty?
Of course, the deliberate and coordinated invasion of a NATO member by Russian troops would fall squarely within the terms of the Treaty. But what would happen if, for example, Russian troops or missiles crossed the border inadvertently? Would this be deemed an armed attack on a member state to trigger the military involvement of all member states? What if a Russian fighter jet briefly flies over a member-state’s territory? It is difficult to know exactly where the line is, particularly in light of the fact that Russian drones have in fact breached NATO airspace, which NATO did not interpret as an “armed attack” to warrant invocation of Article 5, and in response to which NATO Secretary General Jens Stoltenberg acknowledged the risk of accidental invasions as well as an intention to ensure that such accidents “don't spiral out of control.”
Determining what constitutes an “armed attack” under Article 5, therefore, poses thorny questions as a practical matter. The idea of the “armed attack” has been long debated, especially in the context of United Nations Charter Article 51, which recognizes the right of states to “individual or collective self-defense” in response to an “armed attack.” In that context, the International Court of Justice has distinguished between “the most grave forms of the use of force” that would constitute an “armed attack,” from “other less grave forms.”
This leaves open the possibility of a “de minimis threshold” for use of force, below which would not constitute an “armed attack.” This distinction would seem to imply that, in the eyes of international law, an accidental or brief invasion of NATO territory would probably not rise to the level of an “armed attack” to trigger the invocation of Article 5. On the other hand, the ICJ at the same time left open the question of whether “imminent threat of armed attack” constitutes an “armed attack” that justifies an armed response. This creates the question of what, if any, circumstances would cause NATO to enter the war while it is still contained within Ukraine’s borders, but poses an “imminent threat” to NATO member states. Some such scenarios might include egregious and immoral human rights violations and violations of international law, including the use of nuclear warfare in violation of the United Nations Treaty on the Prohibition of Nuclear Weapons, or the use of chemical warfare, in violation of the 1925 Geneva Protocol.
Only time will tell the extent of NATO’s involvement in the conflict in Ukraine. Whether the alliance stays out of the conflict entirely, whether it is pulled into war by an overt attack on a member, or whether it voluntarily enters the war in light of war crimes and atrocities, it has and will continue to play an important role in the course of events.
The seventy-third anniversary of NATO’s founding comes at a crucial moment in history, with the Organization taking center-stage and lending to the very real possibility that the Treaty’s Article 5 collective defense provision may be invoked for only the second time in since it was signed today, seventy-three years ago.
Nicole Gany is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from the University of Miami in 2020.