Is it possible to join NATO in a military conflict?
Most often, the seminar participants question the possibility of membership in the Alliance while the country is in a state of war. So, I propose to deal with the issue in detail from a legal perspective. The only document defining the procedure for gaining membership in the Alliance is the North Atlantic Treaty of March 21, 1949. I suggest we study its content to answer the question.
Article 1 of the Treaty states that Allies undertake to settle international disputes peacefully and act to this end in accordance with the United Nations Charter. Ukraine has never solved international disputes by military means. In this context, it is very important that, despite the full understanding of Russian aggression in the East and the annexation of Crimea, the state has never declared a state of war. The bet of Ukraine and its western partners is on the Minsk agreements as a mechanism for resolving the conflict in Donbas, which, of course, draws criticism in respect of their impact on the security situation in the ATO zone. At the same time, they fully comply with the terms of Article 1 of the Treaty: it's about resolving the conflict by peaceful means. Similarly, Turkey and Greece have been trying to resolve by peaceful means their territorial disputes over Northern Cyprus (where Turkey had the status of guarantor of the existence of a united Cyprus until 1974).
Article 2 of the Treaty stipulates that Allies contribute toward the development of friendly and peaceful international relations by strengthening their free institutions and stability. They shall seek to eliminate conflict in their international economic policies and will encourage economic collaboration between any or all of them.
Article 3. Member States shall develop their individual and collective capacity to resist armed attack.
For many years, Ukraine has been a reliable partner of the Alliance and participated in many Alliance missions before the war in Donbas. Today, our country is actively cooperating with NATO in the process of rebuilding and strengthening the capabilities of not only the Ukrainian Armed Forces, but also the entire security and defense sector. Priority is to achieve interoperability with Allied forces and compliance with NATO standards by 2020. Thus, Ukraine's policy is in line with this paragraph of the Treaty.
Article 4. Member States shall consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.
Article 5. It's the most prominent one, providing for the use of collective defense in the event of an attack on one of the Allies. But here we also find an important detail. The Treaty requires that the Allies provide assistance individually or collectively, including through the use of armed forces. This means that the Treaty does not contain a direct obligation to use the armed forces of member states for such assistance. According to the regulations and practice, assistance can be provided at the expense of resources, logistics and other kinds (intelligence, technical, etc.) of support. This de jure levels skeptical allegations that Ukraine's accession to the Alliance, provided that the conflict in the East is preserved, will mean the need for an automatic application of Article 5 of the Treaty. Article 5 de jure does not entail an obligation to declare war on the aggressor and necessarily apply force against it.
Moreover, given that the armed conflict in Ukraine does not cover the immediate border with Russia located in the occupied territory, legally, from the point of view of Article 5, Ukraine may resort to treating the situation according to the precedent of 1974, when Article 5 was not applied. Consequently, from the legal point of view, even if the military conflict in the East of Ukraine is preserved, the accession to the North Atlantic Treaty Organization will not automatically lead to drawing other Allies into this war. Such an interpretation of the provisions of the Treaty allows Ukraine focusing on reforming its own security and defense sector without distracting on the problem of Russian aggression as a means of preventing our country from joining NATO and the European Union.
Article 7 emphasizes that the Treaty's Article 5 shall not be applied in the event that a member state carries out peacekeeping measures in accordance with UN decisions.
Article 8 emphasizes that at the time of accession to the Organization, the country must not have international obligations that are in conflict with the Treaty. Ukraine in its foreign policy acts within the framework of the UN Charter, which is a basic document for NATO. Consequently, it does not have any international obligations that contradict the Treaty.
Article 10 of the document states that Member States may invite any other European State to accede to the Treaty (that is, to become a NATO member) and contribute to Euro-Atlantic security. Ukraine is a reliable international partner and is ready to contribute to Euro-Atlantic security, which is evident by its participation in UKRPOLBAT.
Article 11 contains the requirement for ratification of the Treaty by all Member States. This makes any country's accession to the Alliance a purely political issue, as was the case with the decision on Ukraine's associate membership in the EU and liberalization of the visa regime between our state and the European Union.
Thus, the only conditions for the country's membership in the Alliance are envisaged in the preamble of the Treaty. It states that the parties to the Treaty reaffirm their commitment to the purposes and principles of the Charter of the United Nations and their desire to live peacefully with all peoples and governments resolute in the process of safeguarding the freedom, common heritage and civilization of their peoples based on the principles of democracy, individual liberty and the rule of law. They also seek to promote stability and well-being in the North Atlantic area, being resolved to unite their efforts for collective defense and for the preservation of peace and security.
The Revolution of Dignity has confirmed as priority the development of democracy and freedom in Ukraine. We are interested in the stability and well-being of the Euro-Atlantic area and committed to the preservation of peace and security.
Thus, the aggression of the Russian Federation cannot be considered a legal obstacle to Ukraine's accession to the Alliance. The prospect of gaining membership lies exclusively in the political plane. It depends on how quickly and efficiently Ukraine will move on the way toward embracing NATO standards, strengthening democratic institutions and remaining a predictable and stable country of the Euro-Atlantic area.
This does not mean that we have to apply for membership immediately. As a civilized partner who shares the values and visions of NATO, we are convinced that we must first accomplish certain tasks concerning criteria, compatibility and state-political stability that will allow us to finally state: "We are ready and able to pass the test on membership through ratification by partner parliaments".
Iryna Friz is a Head of the Permanent Delegation of Ukraine to the NATO PA