1 University of Amsterdam
School of Law
THESIS
Supervisor: Professor Kevin Heller
14 August 2020
NATO and the Democracy Question: An Analysis of the North Atlantic Treaty Organisation’s Democratic Obligations and the Responses it Can Take to Democratic
Decay in its Member States
by Clodagh Prior priorcl@tcd.ie
12658693
International and European (Public) Law LLM 2020
Abstract
With politics across the globe becoming increasingly polarised, the decaying of democracy in certain States has been thrusted under the spotlight. In particular, Poland, Hungary and
Turkey have all been the focus of media scrutiny. Backsliding democracies are not the only feature each of these States have in common – they are also all members of the North
Atlantic Treaty Organisation (‘NATO’). Consequently, the research object of this thesis was to decipher whether NATO allies are obligated, under the North Atlantic Treaty
(‘Washington Treaty’) to maintain democracy within their States, and if so, what routes NATO can take under international law to discipline Turkey.
The doctrinal research focused primarily on the Washington Treaty and the Vienna
Convention on the Law of Treaties (‘VCLT’). Numerous secondary sources of NATO law were also focused on, including Membership Action Plans, Strategic Concepts and
Partnership for Peace Framework. Multiple judgments of the International Court of Justice and the European Court of Human Rights were analysed. While researching this topic, three
2 academic databases were searched systematically. On that basis, a literature review was conducted to explore the legal academia on NATO’s democratic obligations. Moreover, given the everchanging nature of this topic, various new websites and legal blogs were relied on.
This paper found that NATO allies are obliged to promote and maintain democracy. This conclusion was based on the preamble and Article 2 of the Washington Treaty, the practice of NATO subsequent to 1990 and the correlation between meeting its military obligations and maintaining democracy within the Alliance. On that basis, the possibility of amending the Washington Treaty to include a suspension or expulsion clause was discussed. Possible recourse under the VCLT was also considered. It was ultimately concluded that a meaningful response to democratic decay in Turkey will only be achievable if the process of decision-making by consensus is revised to ensure that backsliding allies cannot block reform.
3
Table of Contents
I Introduction 4
II Democratic Decay Defined 7
III Democratic Decay in Turkey 7
IV Turkey’s Relations with Other NATO Allies 10
V NATO’s Commitment to Democracy 12
VI The Erosion of Democracy Within NATO 13
VII Subsequent Practice and NATO’s Transition to a Political Alliance 15
VIII The Correlation Between Security and Democracy Within NATO 19
IX How Can NATO Respond to Democratic Decay in Turkey? 22
X Recommendations 28
4
I INTRODUCTION
The North Atlantic Treaty Organisation (‘NATO’), initially established to deter the threat posed by the Soviet Union, is now confronted by a distinct yet similarly significant challenge - the erosion of liberal democratic norms within several of its Member States.
Although NATO’s foundations were based on military necessity, subsequent practice of the Alliance has demonstrated its commitment to promoting and maintaining democracy in the North Atlantic Area. Several provisions in the North Atlantic Treaty (‘Washington Treaty’) reference the commitment of NATO allies to maintain democracy in their States.1 Moreover, its ability to carry out security operations relies on its political cohesion as much as its members’ military capabilities. A strong link exists between democratic governance and security gains and, historically, liberal democracies are less likely to experience intrastate conflict.2 It was on that basis that, in the post-Cold War period, major European institutional actors enacted policies aimed at developing democratic institutions in Central and Eastern European countries.3 Nonetheless, proponents of NATO’s democratic mandate face intense criticism from those who assert that the Alliance is solely military in nature.4
The COVID-19 Pandemic has brought the decaying of democracy in certain NATO Member States to the fore of public discussion. Hungary’s ruling Fidesz party exploited its parliamentary majority to impose an indefinite state of danger. Consequently, Orbán and his government can now rule by decree for as long as necessary, and only they can decide when the state of danger should end.5 The Hungarian parliament has already capitalised on the state of danger by enacting laws banning the legal recognition of transgender individuals. In Turkey, Erdoğan and his AKP Party have drastically limited the possibilities for the opposition-held municipalities of Ankara and Istanbul to raise funds to address the emergency. The attempts by the mayors of both cities to fundraise were declared illegal. That declaration, in and of itself,
1 The North Atlantic Treaty 1949, preamble & s 2.
2 Katz & Taussig, ‘An inconvenient truth: Addressing Democratic Backsliding Within NATO’ (Brookings, 10 July 2018) <https://www.brookings.edu/blog/order-from-chaos/2018/07/10/an-inconvenient-truth-addressing-democratic-backsliding-within-nato/> accessed 01 May 2020.
3 Lucarelli, ‘Peace and Democracy: The Rediscovered Link - The EU, NATO and the European System of Liberal-Democratic Security Communities’ in Flockhart (ed.), Socialising Democratic Norms (Palgrave Macmillan 2005) 85.
4 See, e.g. Parakilas, ‘Don’t Count on NATO to Save Liberal Values’ (Chatham House, 04 April 2019) < https://www.chathamhouse.org/expert/comment/don-t-count-nato-save-liberal-values#> accessed 23 April 2020.
5 Nick Thorpe, ‘Hungary: ‘Suicide’ of Parliament Grants Orbán Extraordinary Powers’ BBC (Budapest, 18 April 2020) <https://www.bbc.com/news/world-europe-52308002> accessed 25 April 2020.
5 breached the laws governing the powers of Turkish municipalities. The government has also begun a criminal investigation into the mayor’s alleged misconduct. The ruling Pis Party in Poland refused to call-off a presidential election set to take place on May 10, however, it equally did not take any steps to ensure it could be held in a safe manner. Rather, it put pressure on the Supreme Court, which it has packed with its proponents, to retroactively void the original election date. The Parliament also moved to pass controversial laws restricting sexual and reproductive health during the pandemic, at a time when public demonstrations were prohibited.6
This democratic decay comes at a time when the Alliance is facing strong criticism from several of its allies. French president Macron hailed NATO as ‘brain dead’.7 Moreover, Tump has
castigated the Alliance since his election, branding it as obsolete and full of free-riders.8 The US president’s impression of NATO was not improved by the viral video of other world leaders appearing to mock him at the Alliance’s seventieth birthday gathering in December 2019. Trump has, on several occasions, threatened to withdraw the US from NATO.9 The COVID-19 Pandemic has also seen allies hoard medical supplies for their own benefit, borders between allies have been closed, and many allies will likely move crucial funds from their defence budgets to healthcare and social spending. The current fragility of NATO is exacerbated by the lack of a common threat that could unify the Alliance. Since the dissolution of the Soviet Union, it has struggled to identify an overarching common cause that could bond all allies together. The US Foreign Policy Research Institute indicates that this problem is based on efforts to find common cause being cast too vaguely, such as the ‘rise of China’, or being too episodic in their nature, like the fight against terrorism.10
6 Human Rights Watch, Poland: Reject New Curbs on Abortion, Sex Ed (2020) <
https://www.hrw.org/news/2020/04/14/poland-reject-new-curbs-abortion-sex-ed> accessed 08 August 2020.
7 Patrick Wintour & Bethan McKernan, ‘Macron Defends 'Brain-Dead NATO' Remarks as Summit Approaches’ The Guardian (London, 28 November 2019)
<https://www.theguardian.com/world/2019/nov/28/macron-defends-brain-dead-nato-remarks-as-summit-approaches> accessed 20 April 2020.
8 Editorial Board, ‘Trump Confronts NATO’s Free Riders’ Chicago Tribune (Chicago, 17 February 2017) <https://www.chicagotribune.com/opinion/editorials/ct-nato-trump-russia-edit-20170217-story.html> accessed 20 April 2020.
9 Juliane Barnes & Helen Cooper, ‘Trump Discussed Pulling U.S. From NATO, Aides Say Amid New Concerns Over Russia’ (Washington, 14 January 2019)
<https://www.nytimes.com/2019/01/14/us/politics/nato-president-trump.html> accessed 21 April 2020. 10 Gvosdev, ‘The Effect of COVID-19 on the NATO Alliance’ (Foreign Policy Research Institute, 23 March 2020) <https://www.fpri.org/article/2020/03/the-effect-of-covid-19-on-the-nato-alliance/> accessed 25 April 2020.
6 One of the last remaining factors binding NATO allies together is the internal cohesion created by their mutual democratic values. Given the strong links between democracy and security, the dismantling of democracy in Turkey, Hungary and Poland could be the death knell of the Alliance. It is thus incumbent on NATO to discipline these States if it wishes to survive. Whereas other international organisations such as the European Union or the Organisation of American States (‘OAS’) have treaty mechanisms to deal with Member States that breach treaty provisions,11 the Washington Treaty is silent on it. As such, in the past, NATO has taken political measures to bring Allies acting in breach of the Washington Treaty back in line. However, in the immediate case, it is questionable whether mere political actions will suffice.
This paper argues that NATO is obliged to respond to the backsliding of democracy within its member states, based on the Washington Treaty, and on the correlation between its military capabilities and the strength of liberal democracies within the Alliance. Correspondingly, it sets out routes under international law that NATO can take in order to discipline or suspend errant allies. It argues that the consensus-rule forms a major blockade to the effectiveness of international remedies. For the purpose of brevity, democratic decay in Turkey is used as a case study.
In order to contextualise the subsequent discussion, the paper begins by briefly defining liberal constitutional democracy and democratic decay, followed by a discussion in section III of democratic decay in Turkey. Section IV sets out the relationship between Turkey and the other illiberal democracies within NATO, to demonstrate the support it may receive in the event it faces a vote to be suspended from the Alliance. The commitment of NATO allies to democracy under the Washington Treaty is discussed in section V, followed by a discussion of previous incidents of democratic backsliding within the Alliance. In section VII, NATO’s transition from an Alliance based on military obligations to one dedicated to promoting and protecting democracy following those incidents of backsliding is laid out. Correspondingly, section VIII sets out the correlation between security and democracy and its importance in relation to NATO’s military obligations. Next, the possibility of amending the Washington Treaty is delved into. The possibility of NATO seeking recourse against Turkey under the Vienna Convention on the Law of Treaties (‘VCLT’) is then considered. The paper ultimately
7 concludes by recommending that the consensus decision-making process be re-examined in order to allow for more effective responses to errant allies.
II DEMOCRATIC DECAY DEFINED
In order to understand the phenomenon of democratic decay, it is necessary to first define liberal constitutional democracy. Huq and Ginsburg accurately point to three traits they see as warranting that label. Those are: ‘(1) a democratic electoral system, most importantly periodic free-and-fair elections in which a losing side cedes power; (2) the liberal rights to speech and association that are closely linked to democracy in practice; and (3) the stability, predictability, and integrity of law and legal institutions -the rule of law- functionally necessary to allow democratic engagement without fear or coercion’.12 When the author speaks of NATO being obligated to protect and maintain democratic norms, it is these three fundamental tenets that the author believes it is precisely required to preserve.
Democratic decay, in its most simple form, can be viewed as an attack on each of those tenets. Daly defines it as the ‘deterioration of democratic systems worldwide falling short of a democratic breakdown’.13 That definition is similar to that set out by Democratic Decay and
Renewal, which hails it as ‘the incremental degradation of the structures and substance of liberal constitutional democracy’.14 According to Huq and Ginsburg, democratic decay
typically unfolds by means of constitutional amendment, the elimination of institutional checks, the centralisation and politicisation of executive power, the contraction or distortion of a shared public sphere and the elimination of political competition.15 It is against this characterisation of the means by which State actors carry out democratic decay that Erdoğan’s attack on democracy will be analysed.
III DEMOCRATIC DECAY IN TURKEY
Turkey’s oppressive coronavirus measures are just the most recent in a long line of actions designed to suppress democracy in the State. The Justice and Development Party (‘AKP Party’)
12 Huq & Ginsburg, ‘How to Lose a Constitutional Democracy’ (2018) 65(78) UCLA Law Review 80, 87. 13 Daly, ‘Diagnosing Democratic Decay’ (Comparative Constitutional Law Roundtable, Sydney, 07 August 2017) 2.
14 Democratic Decay and Renewal, Index – Democratic Decay (2020) < https://www.democratic-decay.org/index> accessed 28 July 2020.
8 was founded by Recep Tayyip Erdoğan in 2001. The party won two-thirds of parliamentary seats in its first election. Since then, Erdoğan has forged a steady path to authoritarianism. In response to the failed coup in 2016, Erdoğan’s government declared a state of emergency, which remains in place. The AKP Party has exploited the situation in order to silence dissent, rendering Turkey one of the world leaders in jailing journalists.16 In September 2019, Canan Kaftancioglu, the Istanbul chair of the opposition Republic People’s Party was convicted for insulting Erdoğan and spreading terrorist propaganda.
Packing the Turkish judiciary has been a particular focus of the AKP party. In 2010, a constitutional amendment altering the composition of the judicial appointments board (the ‘HSYK’) was passed, enabling the government to pack the Turkish Constitutional Court with its supporters. In 2017, further constitutional amendments were passed which increased Erdoğan’s power over disciplinary investigations and which terminated key positions within the HSYK, allowing the Minister of Justice to make new appointments. Accordingly, no HSYK members are elected by their judicial peers. This is in direct contradiction to international norms requiring the majority on judicial appointment boards to be composed of judges elected by their peers.17 In addition, there are no guidelines on how the Constitutional Court should set
its agenda. It is thus left to the discretion of the Chief Justice who is answerable to Erdoğan. Accordingly, the four-year state of emergency in Turkey has been left largely unchecked by the Courts and the government has been left with a blank cheque to enforce its authority at will.
Recent practice of the Turkish judiciary proves that the court-packing has worked. The Constitutional Court in January 2018 ordered that a writer be released from pretrial detention. However, the order was overturned by a lower court which had no legal precedent to go by. Moreover, statistics from 2019 show that the Constitutional Court had handed down 186,701 judgments since 2012. Only 7,835 (4%) of those decisions established at least one rights violation. The other judgments (96%) are composed of decisions in which no violation of rights were found or the matter was dismissed as inadmissible or rejected on administrative grounds.18
16 Human Rights Watch, World Report 2019 2019: Turkey (2019).
17 International Commission of Jurists, Turkey: The Judicial System in Peril (2016) 10
<https://www.icj.org/wp-content/uploads/2016/07/Turkey-Judiciary-in-Peril-Publications-Reports-Fact-Findings-Mission-Reports-2016-ENG.pdf> accessed 23 April 2020.
18 Ali Yildiz, ‘Does the Turkish Constitutional Court Provide Effective Remedies for Human Rights Violations?’ (IACL-IADC Blog, November 19, 2019) <
https://blog-iacl-aidc.org/2019- posts/2019/11/19/does-the-turkish-constitutional-court-provide-effective-remedies-for-human-rights-violations> accessed 20 April 2020.
9 Yildiz appropriately remarks that a Court which dismisses 96% of the applications brought before it cannot be regarded as providing an effective remedy for rights violations.19
Turkey has also begun to show disdain for its place in NATO. Erdoğan recently purchased an S-400 missile system from Russia. Not only is the system incompatible with NATO defences, it also makes Turkey the first NATO member to operate this Russian defence system. The purchase is viewed by many as a mechanism which allows Putin to use Turkey as a wedge to divide NATO.20 Consequently, the US has suspended Turkey from the F-35 stealth fighter jet programme, which it was helping to produce. More recently, it was suggested by the US ambassador to NATO that a package to support Turkey’s military operations in Syria was conditioned on Erdoğan rebuffing the S-400 defence system.21 The relationship between Turkey and Russia should be of particular concern to all NATO allies given that the threat posed by Russia is the reason for the Alliance’s existence.
Turkey’s links with NATO were further severed as a result of the Idlib crisis. Idlib is a city in Syria of strategic importance to all stakeholders involved in the Syrian war. The Assad regime, backed by Russia, has methodically relocated masses of civilians and opposition fighters to the area following ceasefires and reconciliation agreements. In February 2020, Turkish forces in Idlib were attacked with precision munitions, resulting in 33 Turkish soldiers dying.22 Turkey
placed the blame on the Assad regime for the attack and consequently responded by destroying Syrian aircraft, ground vehicles and targeting regime members. Putin, hoping to keep Turkey on its good side, sought a ceasefire agreement. Notably, NATO allies did not sign off on Turkey’s participation in the fighting in Idlib, nor did they support its ensuing decision to permit refugee to move through its territory in order to reach the EU. As Gvosdev notes, Turkey chose both not to prevent, but actively encouraged, a trend that threatened the security of its ostensible NATO allies.23 These actions have led to some NATO allies calling for Turkey to be disciplined. US Senator Lindsey Graham has suggested suspending Turkey from NATO
19 ibid.
20 Katz & Taussig (n 2).
21 Elizabeth Hagedorn, ‘Intel: Turkey Says S-400 Stance Unchanged Despite US Pressure’ (AL-Monitor, 14 April 2020) <https://www.al-monitor.com/pulse/originals/2020/04/intel-turkey-s400-missiles-russia-us-pressure-cavusoglu.html#ixzz6OrX5yLKT> accessed 25 April 2020.
22 Jonathan Marcus, ‘Syria War: Alarm After 33 Turkish Soldiers Killed in Attack in Idlib’ BBC (28 February 2020) < https://www.bbc.com/news/world-middle-east-51667717> accessed 30 July 2020. 23 Gvosdev (n 10).
10 altogether, in spite of the legislative difficulties involved in doing so.24 Moreover, in 2019,
France’s Minister for EU Affairs disclosed that NATO suspension was ‘on the table’,25 adding
that France would not ‘stay powerless in the face of a situation that is totally and absolutely shocking for civilians [...] [and] shocking for the stability of the region’.26
Democracy in Turkey has now been quashed to such an extent that Freedom House has classified the State as ‘not free’.27 Furthermore, the World Justice Project Rule of Law Index
ranked Turkey at 107 out of 128 states in terms of respect for the rule of law.28 The culmination of all of the above-described efforts directly reflect the process of democratic decay described by Huq and Ginsburg in section II.
IV TURKEY’S RELATIONS WITH NATO ALLIES
Given that every decision made within NATO is based on consensus, it is important to take note of the ties between Turkey and other NATO allies. Turkey’s future in NATO relies heavily on its relations with the Alliance’s two other illiberal democracies, Hungary and Poland. Both States would likely take Erdoğan’s side should NATO enter into discussions on disciplining Turkey.
Since Orbán’s coming to power in 2010, Hungary and Turkey have formed a solid rapport. Orbán attended Erdoğan’s inauguration for his second term in office and has openly praised him as an example that the Fidesz party wishes to emulate. A High-Level Strategic Cooperation Council between the two States was set up in 2013 and is chaired by Erdoğan and Orbán. The most recent Council meeting led to the conclusion of ten agreements on topics ranging from culture to space.29
24 Aurel Sari, ‘Can Turkey be Expelled from NATO? It’s Legally Possible, Whether or Not Politically Prudent’ (Just Security, 15 October 2019) < https://www.justsecurity.org/66574/can-turkey-be-expelled-from-nato/> accessed 25 April 2020.
25 Helene Fouquet, ‘EU to Discuss Sanctions, Turkey’s NATO Membership, France Says’ Bloomberg (11 October 2019) <https://www.bloomberg.com/news/articles/2019-10-11/eu-to-discuss-sanctions-turkey-s-nato-memmbership-france-says> accessed 23 April 2020.
26 ibid.
27 Freedom House, Freedom in the World Report 2020: Turkey (2020).
28 World Justice Project, Rule of Law Index: Turkey (2020) <https://worldjusticeproject.org/rule-of-law-index/> accessed 24 April 2020.
29 Mustafa Kirikçioğlu, ‘High-Level Visits, New Projects to Promote Turkish-Hungarian Relations Further’ (Daily Sabah, 29 November 2019) <https://www.dailysabah.com/diplomacy/2019/11/29/high-level-visits-new-projects-to-promote-turkish-hungarian-relations-further> accessed 20 April 2020.
11 The relationship between Hungary and Turkey was further strengthened in October 2019 when Erdoğan launched Operation Peace Spring against the People’s Protection Units in Syria. While the vast majority of European States denounced the campaign, Hungary endorsed it on the condition that Turkey would seek to facilitate the safe return of the millions of Syrian refugees hosted there. Orbán’s reasoning behind this was that ‘Without Turkey, you cannot stop migration headed for Europe [...] As a consequence of this, Hungary is a strategic partner of Turkey in security and migration questions [...] We have to do everything to avoid masses of migrants arriving at Hungary’s southern border, and for that we need Turkey’s help.’30
In addition, Russia is likely pushing Turkey to form closer ties with Hungary. Both Hungary and Turkey have concluded multi-billion-dollar agreements with the Kremlin and each State takes part in the Turkstream pipeline project, which is used by Russia to send its natural gas to countries in Eastern Europe, allowing it to avoid Ukraine.
The relationship between Turkey and Poland is similarly strong. In 2017, Poland took the opposite opinion to its EU companions in supporting Turkey’s bid for EU membership. Poland’s President Duda remarked that he hoped the ‘Turkish path as well as that of the EU will always go in the same direction and that at the end there will be a full membership of Turkey in the European Union’.31 Moreover, in December 2019, Poland endorsed Turkey’s
support for NATO plans for the Baltic region. At the time, Erdoğan warned that he would oppose NATO’s Baltic plans if other NATO allies did not recognise groups that Turkey is fighting against as terrorists.
The close ties between all three States are not the only reason that Hungary and Poland would frustrate a consensus decision in Turkey’s favour. The governments of both States are similarly legislating for numerous measures that increase political pressure on state institutions and reverse their democratic progress. Accordingly, on the question of whether the Polish government operates with openness and transparency, Freedom House gave it a score of two
30 Lisa Schlein ‘Turkey’s President Blasts Lack of Support for ‘Operation Peace Spring’ VOA (Geneva, 17 December 2019) <https://www.voanews.com/europe/turkeys-president-blasts-lack-support-operation-peace-spring> accessed 26 April 2020.
31 Michal Broniatowski, ‘Poland supports Turkey’s EU bid, says President Duda’ Politico (Warsaw, 17 October 2017) <https://www.politico.eu/article/poland-supports-turkeys-eu-bid-says-duda/> accessed 26 April 2020.
12 out of four points. It also scored the independence of the Polish judiciary at one out of four points.32 Freedom House has ranked Hungary as only ‘partly free’ in 2019.33 As such, fear of
similar decisions being made about Hungary and Poland’s future in NATO would provide an added incentive for them to disrupt discussions on the disciplining of Turkey.
V NATO’S COMMITMENT TO DEMOCRACY
Since the foundation of NATO, protecting democracy and the rule of law has been a cornerstone of its functioning. The Preamble to the Washington Treaty, as well as Articles 2 and 10 evince the commitment of NATO allies to democratic principles. The Preamble stipulates that ‘the Parties to this Treaty [...] are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law’. Article 2 provides that ‘the Parties will contribute toward the further development of peaceful and friendly international relations by strengthening their free institutions’ (emphasis added). As set out in section II, the stability and predictability of legal institutions is a key tenet of liberal democracy. Finally, Article 10 specifies that ‘the Parties may [...] invite any other European State in a position to further the principles of this Treaty [...] to accede to this Treaty’.
A similar emphasis on promoting democracy is evident in a number of secondary NATO documents. The Partnership for Peace established in 1994 saw participating partners start to engage in concrete cooperation activities to increase transparency, ensuring democratic control of the armed forces. State participants signed a Framework Document in which they accepted to commit themselves to the preservation of a democratic society and to respect the principles of international law, of the UN Charter and the Universal Declaration of Human Rights.34 In 1999, NATO’s Security Concept implicitly reserved membership of the Alliance to democratic States only. Paragraph 6, for example, asserts that ‘NATO’s essential and enduring purpose, set out in the Washington Treaty, is to safeguard the freedom and security of all its members by political and military means [...] based on common values of democracy, human rights and the rule of law’. As such, the 1999 NATO Membership Action Plan requires aspirants to demonstrate a commitment to the rule of law35 and to conform to democracy and individual
32 Freedom House, Freedom in the World Report 2020: Poland (2020)
<https://freedomhouse.org/country/poland/freedom-world/2020> accessed 10 April 2020. 33 ibid.
34 Partnership for Peace: Framework Document, Article 2. 35 Part I, section 2(b).
13 liberty.36 NATO’s most recent Strategic Concept highlights that the Alliance ‘keeps it door
open to all European democracies’.37
The above provisions demonstrate that the promotion and protection of democracy forms one of the core purposes for NATO’s existence. Consequently, the deterioration of liberal democratic norms by Turkey, as described in section III, stands in clear violation of this function and objective.
VI THE EROSION OF DEMOCRACY WITHIN NATO
The erosion of the rule of law and democratic norms in certain NATO Member States is not a new phenomenon. Indeed, when Portugal initially joined the Alliance as a founding member in 1949, the authoritarian Estado Novo regime was in power. Greece, which joined the Alliance in 1952, was ruled by a series of far-right military juntas, known as the Regime of Colonels, from 1967 to 1964. Turkey, which joined the same year as Greece, has also been ruled at various points over the past fifty years by military juntas.
NATO’s justification for the inclusion of these States as allies was based on the need to prioritise cohesion and geopolitical interests in the face of a growing Soviet presence in the Mediterranean and the withdrawal of France from its integrated military structure in 1966.38 In
the case of Greece, the official NATO position centred on non-intervention and failed to address the human rights violations and the imposition of a dictatorship.39 Rather, its responses focused on ‘the need to maintain the strength and cohesion of the Alliance, ensuring that Greece remained a loyal ally, able to discharge its NATO duties effectively’.40
However, allies have not always sympathised with authoritarian States. Canada sought to incorporate an expulsion clause into the draft Washington Treaty. In its view, the circumstances that could justify the expulsion of an Ally must include ‘the coming into power of a communist-dominated government in that State’. The Canadian negotiating party further suggested a draft
36 Part I, section 2(a).
37 NATO, Strategic Concept for the Defence and Security of the Members of NATO (2010) 8.
38 Lisa Sawyer Samp, ‘How to Deal with Authoritarianism Inside NATO’ (War on the Rocks, 25 August 2017) <https://warontherocks.com/2017/08/how-to-deal-with-authoritarianism-inside-nato/> accessed 18 April 2020.
39 ibid.
40 Pedaliu, ‘A Discordant Note: NATO and the Greek Junta’ (2011) 22(1) Diplomacy & Statecraft 101, 102.
14 provision enabling the North Atlantic Council to suspend or expel an ally from the privileges of membership.41 The clause was not ultimately incorporated into the final Treaty as the other
negotiating parties felt that it would be erroneous to include a provision that could raise questions in relation to the Council’s voting procedure.42
The US Secretary of State at the time took the opposite view. In his statement to the Senate Committee on Foreign Relations, Dean Acheson stated that
‘You do not want to have provisions in such a treaty saying that you can throw them out, because that indicates you are rather doubtful about them before you start; but if you can describe the sort of objectives that are shared by all of these countries, and one of them should no longer be able to be seeking those objectives, then the basis is laid for a separation’.43 He further remarked that where an ally persistently violates Treaty provisions, the other Allies would not be obliged to assist the member.44
Additionally, Norway, Denmark and the Netherlands were determined to ensure that NATO responded to deteriorating democratic norms in Portugal and Greece with an explicit denunciation and other measures intended to isolate and punish.45 The measures sought
included seeking the relocation of a planned 1971 ministerial out of Lisbon, advocating for investigations into alleged human rights violations and calling for Portugal’s expulsion from the Alliance. In addition, some Danish and Dutch politicians proposed that their respective States unilaterally withdraw from NATO. A similar situation arose again in 1974 when allied leaders discussed suspending Portugal’s NATO membership after a leftist coup. Instead, Portugal was discretely sanctioned and precluded from participating in the majority of NATO activities from 1974 to 1975. Although the above-mentioned geopolitical interests in keeping Greece and Portugal as NATO allies outweighed the grievances of Denmark, the Netherlands and Norway, the actions of the latter States highlight possible steps that could be taken presently by Allies in response to democratic backsliding in Hungary, Poland and Turkey.
41 Sari (n 24). 42 ibid.
43 Dean Acheson, United States Secretary of State, ‘The Vandenberg Resolution and the North Atlantic Treaty’ (Statement before the Senate Committee on Foreign Relations, United States Senate, 2nd Session, 80th Congress, Washington DC, 11 May 1948).
44 ibid.
15 The Belfer Center suggests that, to increase awareness of democracy within NATO, foreign ministers could review, annually, indicators of democracy for all allies, drawing on Freedom House data. Furthermore, NATO could increase pressure on backsliding allies by suspending the hosting of visits, official meetings and military exercises in those nations. In severe situations, NATO infrastructure, spending and access to military schools and information-sharing could be suspended.46
Vandiver observes that, in such cases, NATO members act more strongly outside of the Alliance, through their bilateral relations with the offending government. The US Senate, for example, stopped the delivery of the F-35 stealth fighter jet to Turkey because of its acquisition of the S-400 missile defence system from Russia. It also sanctioned companies involved in the Turkish Stream pipeline project and lifted its arms embargo on the Republic of Cyprus, which has been in conflict with Turkey since 1974. France and Germany banned the export of arms to Turkey as a result of its attack on the Kurdish YPG militia in Syria. While sanctions can sometimes be effective, Erdoğan has not responded to any of the above-mentioned sanctions. Accordingly, it is unlikely that sanctions in response to Turkey’s breach of the Washington Treaty would be effective.
VII SUBSEQUENT PRACTICE AND NATO’S TRANSITION TO A POLITICAL ALLIANCE
Those who argue that NATO is purely a military alliance, and thus that democratic decay in Turkey is not in violation of the Washington Treaty, frequently point to the aforementioned accession to NATO of Turkey, Greece and Portugal at a time when each State was under authoritarian rule.
The author does not deny that the admission of these allies into NATO could undermine the argument that it, as an Alliance, is committed to the preservation and promotion of democracy. However, NATO’s objectives have changed over time in order to reflect the reality of the post-Cold War global context.
While the provisions of the Washington Treaty are themselves currently immutable, it cannot be denied that the Alliance’s interpretation of its provisions has gradually transformed since its
16 inception. In this regard, Lauterpacht remarks that ‘today’s rule reflects in part yesterday’s deviance [...] the cloth of obligation is partly cut from the pattern of non-conformity’.47 This is
reflective of the principle of subsequent practice. Subsequent practice deviates from treaty provisions to such an extent that it can no longer be said to form an act of treaty interpretation but rather one of modification.48 Article 31(3)(b) of the Vienna Convention on the Law of Treaties (‘VCLT’) states that there ‘shall be taken into account, together with context [...] any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. NATO’s post-Cold War practice clearly demonstrates its transition from an Alliance dedicated to military defence to one that is committed to preserving liberal democratic norms.
Turkey was permitted to join the Alliance because the threat posed by the spread of communism into the North Atlantic Area was greater than that posed by authoritarianism at the time. Rather than being used to justify the active engagement in the spreading of NATO values and norms, Article 2 and the Preamble of the Washington Treaty were primarily adopted to ideologically differentiate the Alliance from the Soviet Union. In the absence of the shared external threat of the Soviet Union, the binding force of liberal democratic values and institutions has now become essential to NATO’s effectiveness.49 From 1990 onward, NATO’s
practice has enabled it to use the Preamble and Article 2 to advance its democratic agenda.
The Partnership for peace, framework document, membership action plans and strategic concepts described in section V all evince NATO’s commitment to promoting democracy. The Alliance demonstrated its first step as an active promoter of democracy in 1990 when it exchanged diplomatic liaisons with Central and Eastern European countries to begin political and military dialogues.50 This was stressed by successive Secretary Generals of the Alliance. In 1999, for example, Secretary General Solana declared that the new Strategic Concept marked ‘the transition from an Alliance concerned mainly with collective defence to one which will be a guarantee of security in Europe and an upholder of democratic values both within and
47 Lauterpacht, ‘The Development of the Law of International Organisation by the Decision of International Tribunals’ (1976) 152(4) Hague Recueil 377, 389.
48 Buga, ‘Subsequent Practice and Treaty Modification’ in Bowman & Kritsiotis (eds.), Conceptual and
Contextual Perspectives on the Modern Law of Treaties (CUP 2018) 372.
49 Wallander, ‘NATO’s Enemies Within: How Democratic Decline Could Destroy the Alliance’ (2018) 97(4) Foreign Affairs 70, 72.
50 See further, Wolff, ‘The Structural and Political Crisis of NATO Transformation’ (2009) 7(4) Journal of Transatlantic Studies 476, 480.
17 beyond our borders’.51 In 2001, Secretary General Robertson noted that ‘NATO’s mission, as
we enter the 21st Century, is to nourish that common culture [of democracy, free markets, and human rights]. To reach out, proactively, to support democracy within countries, and peaceful participation by states in international relations’.52 The new direction of NATO was endorsed by its most powerful ally, the United States. Alexander Vershbow, the US Ambassador to NATO under Clinton, declared that ‘NATO is now in the business of defending common values [...] Our shared values - freedom, democracy, the rule of law, respect for human rights - are themselves every bit as much worth defending as is our territory’.53 All of these statements do
not describe a traditional military alliance geared to defeat an enemy, but rather displays NATO as an alliance that promotes democratic norms via consultation, cooperation and common security.54
The commitment to promoting democracy set out in the Strategic Concept and Partnership for Peace programme was underscored by the Founding Act on Mutual Relations, Cooperation and Security between NATO and the Russian Federation. Section I of the Act stipulates that ‘NATO and Russia, based on an enduring political commitment undertaken at the highest political level, will build together a lasting and inclusive peace in the Euro-Atlantic Area on the principles of democracy and cooperative security’.This provision illustrates a new attitude towards Russia, standing in stark contrast to the Alliance’s initial view of the Soviet Union as solely a security threat.
NATO’s commitment to advancing democratic values in the 1990s culminated in its intervention in Kosovo in 1999. As Kay notes, the Kosovo conflict was one in which Western values, rather than the territory of a NATO ally, were threatened.55 Consequently, NATO’s actions and words indicated that such democratic values were an integral part of its mission.56 Former Deputy Secretary General Balanzino emphasised this new direction, providing that ‘the
51 Javier Solana, NATO Secretary General, ‘Statement on the New Strategic Concept’ (Speech at the meeting of the North Atlantic Council at the level of Heads of State and Government, Washington DC, 24 April 1999).
52 George Robertson, NATO Secretary General, ‘International Citizenship’ (Speech at John Moores University, Liverpool, 06 September 2001).
53 Alexander Vershbow, US Ambassador to NATO, ‘Shared Values as Much Worth Defending as Territory’ (Speech at the Marshall Center, Garmisch, 30 July 1999).
54 Wolff (n 50) 480.
55 Kay, ‘After Kosovo: NATO’s Credibility Dilemma’ (2000) 31(1) Security Dialogue 71, 77. 56 ibid 78.
18 events in Kosovo changed NATO’s focus’ and that the Alliance ‘had to decide whether the notion of common values is only rhetorical flourish or whether it carries real meaning’.57
On 23 March 1999, NATO commenced a 78-day long bombing campaign against the Federal Republic of Yugoslavia in response to the ethnic cleansing of Kosovar Albanians by Slobodan Milosevic’s regime. The intervention marked the first time in NATO’s fifty-year history that the allies engaged in military action against a sovereign State. NATO now forms the core of the international peacekeeping mission to Kosovo, also known as KFOR. According to the alliance, ‘the mission is seeking to build a secure environment within the Serbian province in which all citizens, irrespective of their ethnic origins, can live in peace and, with international aid, democracy can begin to grow’.58
The link between the intervention and NATO’s commitment to protecting and promoting democracy is clear. Former Deputy Secretary General Balanzino aptly summarised that ‘nineteen democracies stood firm knowing that this was more than a question of preserving NATO credibility: it was a question of whether our vision of a democratic and humane Europe could prevail over a policy of intolerance and xenophobia’.59 US Secretary of State Madeline
Albright further posited that ‘The people of Kosovo must be given the democratic self-government they have long deserved’ and that the region ‘is the critical missing piece in the puzzle of a Europe whole and free. That vision of a united and democratic Europe is critical to our own security’.60 A failure on NATO’s part to respond to similar challenges to Western values presented by Turkey will undermine these commitments and erode its institutional credibility.61
Buga argues that NATO’s new strategic concepts go beyond the original purpose of the Washington Treaty, collective defence and deterrence. He observes that its adaptation to a broad range of global issues and security tasks in recent years indicates a ‘marked modification
57 Balanzino, ‘NATO’s Actions to Uphold Human Rights and Democratic Values in Kosovo: A Test Case for a New Alliance’ (1999) 23(2) Fordham International Law Journal 364, 364.
58 NATO, NATO’s Role in Kosovo (2010) <https://www.nato.int/kosovo/kosovo.htm> accessed 19 April 2020.
59 Balanzino (n 57) 373.
60 Albright, ‘US and NATO Policy Toward the Crisis in Kosovo’ (1999) 10(5) US Department of State Dispatch 5, 6.
19 by subsequent practice of its original mandate’.62 That modification clearly involved
establishing a serious obligation on NATO’s part to maintain and promote democracy in accordance with the preamble and Article 2.
VIII THE CORRELATION BETWEEN SECURITY AND DEMOCRACY WITHIN NATO
Taking into the account the above steps taken by the Alliance to prove its commitment to the promotion of democracy, it is difficult to accept that it is solely dedicated to the achievement of security aims. Even if it were to be conceded that NATO’s primary obligations under the Washington Treaty are military-based, it would be an arduous task for the Alliance to meet those obligations without it having a unifying democratic mandate. As Dempsey observes, there is a political necessity for all NATO allies to reinforce the Art 5 obligation in words and actions.63
NATO’s security obligations are made clear in Articles 3 and 5 of the Washington Treaty. Article 3 stipulates that ‘In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack’. Article 5 provides that ‘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 thus each ally ‘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’.
A clear link exists between maintaining democracy within the Alliance’s nations and meeting its military obligations. Kant postulates that societies governed democratically are more inclined to avoid armed conflict with each other.64 This is in line with his democratic peace theory, which specifies that democracies seldom go to war with each other and therefore assumes that an expansion in the number of democratic states would imply and encourage a more secure world.65 A 2017 study by the Community of Democracies found that democracies
62 Buga (n 48) 374.
63 Dempsey, ‘From Suez to Syria: Why NATO Must Strengthen Its Political Role’ (2016) Carnegie Endowment for International Peace, 4.
64 See further, Kant, To Perpetual Peace: A Philosophical Peace Sketch (Ted Humphrey tr, Hackett Publishing Company 2003).
20 do not go to war against one another, and that authoritarian States are more likely to experience intra and interstate conflict. Moreover, States at an intermediate stage of democratisation are identified as being the most vulnerable to insecurity. 66 The study establishes that, in order to encourage international security, it is essential to endorse policies to ‘institutionalise democratic governance, inclusive politics and human rights in fragile states’.67 Finally, it
concludes that ‘international organisations, from the United Nations to the World Bank, together with regional organisations, from the African Union to the European Union, should adapt their approaches to security and development in light of these findings’.68
It was based on the link between democracy and security gains that NATO policy since 1990 has been aimed at promoting democracy in Central and Eastern Europe. Wallander accurately remarks that democratic decay enables corruption, and in Europe, corruption enables Russian access and influence. She points to the Russian intervention in Ukraine in 2014 and notes that the NATO allies that were most open to corruption, demagogic populism and Russian media influence stymied the Alliance’s ability to form a unified response.69
Indeed, Wallander further notes that NATO’s decision to limit membership to democratic States was based on the belief that the existence of liberal institutions, practices and values would form an obstacle to return to the nationalist and extremist dynamics that had driven destructive conflicts in Europe for many years.70 In that sense, it is questionable as to how
much longer NATO’s many military committees, including the North Atlantic Council, can continue to effectively operate in light of democratic decay in Turkey. What happens when Erdoğan cannot be relied on to maintain basic liberal democratic norms or human rights? The link between the fulfilment of NATO’s military obligations and its commitment to democracy promotion has become even clearer as a result of the Turkish military’s recent actions. Jeffrey posits that the less democratic a State, the more that State pursues self-interested foreign policies. As such, Turkey’s own success and its value as a NATO ally rely largely on its democratic political system.71 Illiberalism in Turkey places NATO’s military
66 Community of Democracies, Liberal Democracy and the Path to Peace and Security (2017) 2. 67 ibid.
68 ibid 22.
69 Wallander (n 49) 78. 70 ibid.
71 Jeffrey, ‘Turkey, NATO’s Odd Man Out?’ (Just Security, 09 July 2018)
21 capabilities at risk. Turkey’s purchase of the S400 missile system from Russia and its involvement in the Idlib crisis indicates that it is willing to act against NATO’s military interests. The State’s proclivity for pursuing its own military interests to the detriment of the Alliance was further demonstrated in July 2020. Turkish warplanes flew over an area near Rhodes after Greek warships were put on alert over Turkey’s ambition to drill for undersea natural gas there.72 A mere two weeks later, Turkish warships escorting a vessel suspected of smuggling weapons into Libya contrary to a UN arms embargo were challenged by a French naval frigate. The Turkish warships went to battle alert and the French frigate was forced to withdraw.73 Again, on 12 August 2020, Greece was forced to put its military on high alert, recalling its naval and air force officers from holiday, as tensions further escalated with Turkey over its exploration of offshore energy reserves in the eastern Mediterranean.74
These actions call into question Turkey’s ability to meet the Article 3 obligation to jointly develop the allies’ military capability by means of continuous mutual aid. Moreover, should Article 5 ever need to be invoked, the likelihood of Turkey taking the necessary armed action to restore security is low. This probability would be further reduced if the armed attack in question was carried out by Russia given the ever-closer links between Erdoğan and Putin. In that regard, Dempsey states that Baltic States are becoming increasingly anxious about the political willingness of other NATO members to defend them in case of an attack by Russia.75
It is not coincidental that the above described incidents coincide with Erdoğan’s attacks on Turkish democracy. Russia has actively encouraged anti-democratic action in Turkey in order to weaken NATO militarily. The Council on Foreign Relations has found that, in the long term, other international competitors of the US, like China, can similarly be expected to exploit any divisions over democratic values within NATO.76
72 Steven Erlanger, ‘Turkish Aggression Is NATO’s ‘Elephant in the Room’’ New York Times (Brussels, 03 August 2020)
<https://www.nytimes.com/2020/08/03/world/europe/turkey-nato.html?smtyp=cur&smid=tw-nytimesworld> accessed 08 August 2020. 73 ibid.
74 Helena Smith & Jon Henley, ‘Greek military put on high alert as tensions with Turkey rise’ The
Guardian (Athens and Paris, 13 August 2020) <
https://www.theguardian.com/world/2020/aug/13/greek-military-put-on-high-alert-as-tensions-with-turkey-rise> accessed 13 August 2020. 75 Dempsey (n 63) 4.
76 Matthias Matthijs, Senior Fellow for Europe, Council on Foreign Relations, ‘Democracy and the NATO Alliance: Upholding Our Shared Democratic Values’ (Speech before the Committee on Foreign Affairs, US House of Representatives, 1st Session, 116th Congress, Washington DC, 13 November 2019).
22 NATO possesses both hard and soft power. The stronger its political dimension is, the better it can leverage its military power. Where there is an erosion of its political cohesion, it is less likely to be readily aligned in times of crisis around bringing together its military power. Where that cohesion is separated, it is far more prone to interference by third-party States with an interest in weakening NATO’s strength. The Council on Foreign Relations observes that adversaries will increasingly see NATO’s authoritarian regimes as potential Trojan horses. They will seek to cultivate closer ties with those regimes so that they can break up the Alliance from within.77
This has already been demonstrated by Russia’s relationship with Turkey. The obligations set out in Articles 3 and 5 of the Washington Treaty are inextricably linked to the Alliance’s promotion of democracy. Consequently, it cannot be concluded that the Washington Treaty created an Alliance that is purely dedicated to military obligations and objectives. At the very least, NATO is a military alliance in service of democracy. As such, Turkey’s democratic decay must be acted on by the Alliance.
IX HOW CAN NATO RESPOND TO DEMOCRATIC DECAY IN TURKEY?
Envisioning an Ejection Clause
The Washington Treaty’s silence on disciplining or expelling allies for backsliding on democratic norms stands in stark contrast to some of its international counterparts.
European Union legislation contains extensive provisions dealing with Member States that act contrary to its values. Article 7(1) of the Treaty on the European Union (‘TEU’) stipulates that where one third of the Member States submit a reasoned proposal, by the European Parliament or by the European Commission, the Council, acting by a majority of four-fifths of its members after obtaining the Parliament’s consent, may determine there is a clear risk of a serious breach by a Member State of the values set out in Article 2. These values include respect for freedom, democracy, equality, the rule of law and respect for human rights. A similar provision could be inserted into the Washington Treaty stating that the North Atlantic Council, acting by qualified majority voting, may determine there is a clear risk of a serious breach by an Ally of the values set out in the Preamble and Article 2 of the Washington Treaty. However, extensive
23 complications arise when attempting to change NATO’s consensus-based decision-making process, which will be discussed in further detail below.
Before making such a determination, Article 7(2) specifies that the Council shall hear the relevant Member State and can address recommendations to it, acting in accordance with the same procedure. Where such a determination is made, paragraph 3 allows the Council, acting by a qualified majority, to suspend certain Treaty rights to the Member State. Paragraph 4 states that the Council must consider the potential consequences of such a suspension, and the Treaty obligations continue to apply to the Member State in question. Taking into account the consequences of the suspension of an ally from NATO would be a logical requirement to add to the Washington Treaty, given the strategic importance of Turkey to the Alliance’s military. In addition, continuing to place Treaty obligations on Turkey while suspended would be of use, particularly in the context of military spending responsibilities and the Article 5 collective defence obligation.
The Charter of the Organization of the American States contains a similar, though less detailed, provision on the suspension of Member States. Article 9 of the Charter states that Members of the Organization whose democratically constituted government has been overthrown by force may be suspended from the exercise of the right to participate in the sessions of bodies such as the General Assembly and the Councils of the Organization. This power is limited to instances where diplomatic initiatives of the Organization to promote the restoration of representative democracy in the Member State in question have been unsuccessful.78 A similar provision could be particularly advantageous in the NATO context given the above discussed value of unilateral action taken by allies outside of NATO. The decision to suspend a Member of the OAS must be adopted at a special session of its General Assembly by a vote of two-thirds of the Member States. Moreover, under paragraph (e), the suspended Member must continue to fulfil its obligations to the Organization. The suspension decision can be lifted by the General Assembly with the approval of two-thirds of the Member States.79 A similar voting procedure would be practical in NATO’s context due to the likelihood of Turkey, Hungary and Poland siding with each other. However, as will be discussed below, decision-making by consensus forms a cornerstone of NATO and will not be easily changed.
78 Charter of the Organisation of American States, Article 9(a). 79 ibid, Article 9(f).
24 The Problem with the Consensus Rule
While Article 13 of the Washington Treaty sets out how a NATO ally can withdraw unilaterally from the Alliance, the Treaty is silent on the expulsion of an ally. The Treaty is similarly silent on how decisions should be made by the Alliance. In the absence of an explicit voting procedure, NATO developed a set of customary practices for decision-making known as the ‘consensus rule’. The rule is not binding in a legal sense, but as Michel points out, it is an institutionalised norm that has remained essentially unchanged over more than seven decades.80 The North Atlantic Council thus bases all of its decisions on consensus without voting. It deems its decisions to be ‘the expression of the collective will of the sovereign member states, arrived at by common consent and supported by all’.81 No government states its objection and a formal vote whereby governments state their position is not taken.82 Where there is disagreement, discussions are held until a decision is reached, and occasionally, this may be to recognise that agreement is impossible.83
The consensus rule forms the cornerstone of the effective functioning of NATO and is one of the principle reasons that the Alliance has lasted as long as it has. NATO’s standard principle of consensus forms a distinct impediment to the amendment of the Treaty to include an expulsion clause. Discussions on the inclusion of an expulsion clause would likely not conclude in agreement given Turkey’s objections.
Wallander has suggested that a qualified majority rule for internal governance should be implemented so that NATO could make it possible for a defined supermajority of members to suspend the voting or decision rights of backsliding allies.84 Accordingly, errant members could be disciplined by other allies and it would allow NATO to erect a higher barrier against democratic backsliding. Even were this to be the new decision-making standard, the other backsliding allies, Poland and Hungary, would presumably side with Turkey in discussions and
80 Michel, ‘NATO Decision-Making: The ‘Consensus Rule’ Endures Despite Challenges’ in Mayer (ed)
NATO’s Post-Cold-War Politics: The Changing Provision of Security (Palgrave MacMillan 2014) 107.
81 NATO, Consensus Decision-Making at NATO (2016)
<https://www.nato.int/cps/en/natolive/topics_49178.htm> accessed 01 May 2020. 82 Gallis, ‘NATO’s Decision-Making Procedure’ (2003) CRS Report for Congress, 3. 83 NATO Public Diplomacy Division, NATO Handbook (2006) 33
<https://www.nato.int/docu/handbook/2006/hb-en-2006/Part2.pdf> accessed 16 April 2020. 84 Wallander (n 49) 79.
25 advocate for its place in the Alliance. Even if Hungary and Poland were to support Turkey’s expulsion, Wallander fails to mention how a new decision-making rule would be achieved. Article 12 of the Washington Treaty stipulates that
‘the Parties shall, if any of them so requests, consult together for the purpose of reviewing the Treaty, having regard for the factors then affecting peace and security in the North Atlantic area, including the development of universal as well as regional arrangements under the Charter of the United Nations for the maintenance of international peace and security’.
Thus, while amending the Treaty is possible, under the current NATO rules, a consensus decision would, in practice, be required in order to make such an amendment. It is again likely that the conclusion of an agreement would be frustrated by Turkey, which would probably be backed by Poland and Hungary.
Recourse Under the VCLT
Should changing the consensus rule to amend the Washington Treaty prove to be too difficult, the VCLT sets out methods to be taken by parties aggrieved by treaty breaches.
Article 60(2)(a) VCLT stipulates that a ‘material breach’ of a multilateral treaty by one of the parties entitles the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part. It also provides that the parties can terminate the treaty in the relations between themselves and the defaulting State. For this analysis, Erdoğan’s packing of the Constitutional Court will be focused on. Should this act constitute a material breach of the Washington Treaty, it is possible that the other NATO allies could terminate the treaty in the relations between themselves and the relevant State.
Article 60(3) of the VCLT defines a ‘material breach’ as a repudiation of the treaty not sanctioned by the Convention85 or the violation of a provision essential to the accomplishment of the object or purpose of the treaty.86 The Washington Treaty’s silence on disciplining Allies whose governments are assaulting liberal democratic norms is in stark contrast to its commitment to democracy. Both the preamble and Article 2 of the Treaty set out NATO’s objective of promoting and maintaining democracy. On that basis, Sari argues that maintaining
85 Vienna Convention on the Law of Treaties 1969, s 60(3)(a). 86 ibid, s 60(3)(b).
26 and furthering the democratic principles on which the Alliance is based form part of the object and purpose of Washington Treaty. He asserts that there is ‘little doubt that the continued compliance with the values set out in the preamble and Article 2 is essential for the competition of the object and purpose of the treaty’.87
It could be argued that the object and purpose of the Washington Treaty is one of collective defence rather than one of protecting democracy. The VCLT does not, however, provide any guidance on how to extract the object and purpose of a treaty. Notwithstanding this, there is convincing precedent to demonstrate that the preamble of a treaty can be relied on to establish its object and purpose. Although the context is different to that in the immediate case, Pellet’s observations as Special Rapporteur on Reservations to Treaties within the International law Commission stated that ‘the object and purpose of the treaty is to be determined in good faith, taking account of the terms of the treaty in their context, in particular the title and the preamble of the treaty.88 Hulme asserts that the relationship between preambles and statements of objects and purpose is ‘practically universal’ and ‘arises from historical practices and conventions of treaty drafting and interpretation’.89 Furthermore, Hulme posits that the VCLT, through the
codification of the object-and-purpose analysis as a legitimate approach to interpretation, has implicitly approved the practice of referring to preambles in this context, even though it only explicitly refers to preambles in relation to text-and-context analysis.90
Multiple international courts and tribunals have adopted this approach. In the Case Concerning Rights of Nationals of the United States of America in Morocco,91 the International Court of Justice (‘ICJ’) used the preamble of a Convention and of the 1906 Act of Algeciras in order to establish the ‘purposes and objects’ of each.92 Moreover, in Golder v the United Kingdom,93
the European Court of Human Rights held that ‘the preamble is generally very useful for the determination of the object and purpose of the instrument to be construed’.94
87 Sari (n 24).
88 International Law Commission, Report of the work of the Sixty-third Session (2011) U.N. Doc. A/66/10/Add.1, 359.
89 Hulme, ‘Preambles in Treaty Interpretation’ (2016) 164(5) University of Pennsylvania Law Review 1281, 1300.
90 ibid.
91 Case concerning Rights of Nationals of the United States in Morocco (France v United States), Judgment of August 27th, 1952, ICJ Reports 1952, 176.
92 ibid, 196.
93 Golder v United Kingdom (1975) 1 EHRR 524. 94 ibid, para 34.
27 Taking into account the commitment of the allies contained in the Preamble of the Washington Treaty to safeguard democracy, the obligations set out in Article 2, the correlation between NATO’s security and democracy obligations and the subsequent practice of the Alliance, it is clear that promoting democracy is an object and purpose of the Treaty. The packing of the Turkish Constitutional Court, as well as the silencing of opposition voices and the indefinite state of emergency in Turkey demonstrate the disregard shown by Erdoğan and the AKP Party for that object and purpose.
Sari remarks that should the conditions for material breach be satisfied, NATO allies would be entitled, by unanimous agreement, to terminate the Washington Treaty in their relations with the defaulting State. He also notes that, for these purposes, a unanimous decision of the NAC excluding the defaulting State would be adequate.95 This presents another issue. Article 60(2)(a) requires the parties to a Treaty to make a unanimous decision to terminate the Treaty relations between themselves and the defaulting State. Even if consensus minus one is adequate, it is highly unlikely that Poland and Hungary would vote to exclude Turkey from the Washington Treaty given the risk that they could similarly be ousted.
Article 60 was discussed by the ICJ in its advisory opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa).96 It observed that
Article 60 is a codification of customary international law.97 The Court then referred to the existence of a ‘general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character’.98 It went on to further remark that
‘the silence of a treaty to the existence of such a right cannot be interpreted as implying the exclusion of a right which has its source outside of the treaty, in general international law, and is dependent on the occurrence of circumstances which are not normally envisaged when a treaty is concluded’.99
95 Sari (n 24).
96 Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of June
21, 1971. ICJ Reports 1971, 16. 97 ibid, para 94.
98 ibid, para 96. 99 ibid.
28 Following the logic of this judgment, it could be deduced that a right of NATO allies to terminate Turkey’s membership exists outside of the Washington Treaty. However, the issue of consensus decision-making again arises. As such, should any action be taken within the parameters of the VCLT, the consensus rule will need to be revisited.
X RECOMMENDATIONS
Abandoning Consensus?
A common thread mentioned throughout this paper is the deadlock caused by the consensus rule. These difficulties raise the question of whether it is time for it to be discarded. There have been numerous calls over the past two decades to revaluate the practicality of making decisions by consensus within NATO.
The debate came to a head in 2003 as a result of the intra-alliance dispute over Iraq, which was suspected of possessing weapons of mass destruction. In late 2002, the UN Security Council issued Resolution 1441 to extend a final opportunity to Iraq to comply with its disarmament obligations. Correspondingly, NATO heads of state and government pledged their support for the implementation of the resolution. Saddam Hussein, the President of Iraq at the time, failed to observe the resolution. The United Kingdom, with the backing of the US, advocated for a new UN Security Council resolution authorising the use of force against Iraq. France, with the support of Germany, however, was opposed to taking such a step. Tensions were heightened further when the Permanent Representative for the US proposed that NATO military authorities begin contingency planning for the defence of Turkey. Belgium, Luxembourg, France and Germany disagreed on the need for and timing of these measures. Turkey itself then formally invoked Article 4 of the North Atlantic Treaty, seeking consultations in the NAC on defensive assistance from NATO contingent upon a threat to its territory or population as a result of armed conflict in Iraq. Again, no consensus could be reached as Belgium, France and Germany believed that any early moves on the part of NATO to deploy defensive measures to Turkey could prejudice the debate in front of the UN Security Council in relation to Iraq. The issue was eventually resolved when Turkey’s request was transferred to the Defence Planning Committee (‘DPC’), where France was not represented. Consensus was thus quickly reached and the DPC authorised NATO’s military authorities to implement the defensive measures to assist Turkey.
