The United States has long been an important and reliable partner for Europe. In 1949, together with 11 other states, the USA founded NATO as a security and defence alliance in the face of the threat posed by the expansion of the Soviet Union. In recent weeks, Donald Trump has repeatedly questioned Article 5 of the NATO treaty. His confidant Elon Musk even called for the US to leave the alliance. What does this mean for Europe?
Paul Gragl: Article 5 states that if an ally is attacked, that state – after a unanimous decision by all members – can activate the mutual defence clause. This obliges all partners to come to the aid of the country under attack. An irony of history: So far, this has only happened once, in 2001 after 9/11. That was when the US activated the mutual defence clause. Subsequently, British, German, Danish and Canadian soldiers also died in Afghanistan. For Europe, a withdrawal of the United States from NATO naturally means a weakening in terms of security and defence. The US is the military backbone of this alliance.
Can a US president – from a legal point of view – decide just by himself whether to leave NATO or to ignore the mutual assistance clause?
Gragl: During Trump's first term in office, Congress passed a law to bar the President from unilaterally withdrawing the US from NATO. However, the law is not entirely clear. Most lawyers assume that a two-thirds majority in Congress would be necessary for such a withdrawal. But if Trump publicly says – addressing Putin – that he will ignore the mutual assistance clause, then this law is not worth the paper it is written on.
What options does Europe have for filling the security gap that is now emerging?
Gragl: Commission President Ursula von der Leyen recently presented a plan called ReArm Europe that would allow member states to mobilise up to €800 billion for defence and armaments spending. To that end, the criteria for national debt are to be relaxed. In Germany, Friedrich Merz has announced that the debt brake enshrined in the constitution should be lifted to enable the necessary investment in rearmament. A lot is currently happening, so Europe seems to have recognised the seriousness of the situation. At least I hope so. One positive effect of the Trump presidency is that the United Kingdom – traditionally always the transatlantic bridge between Europe and the USA – is moving closer toward Europe again. The US president's behaviour is apparently causing his support in Europe to crumble. Marine Le Pen, for example, formerly a great supporter of Trump, described the withdrawal of aid to Ukraine as outright cruel.
But isn't more needed for Europe to be able to defend itself successfully than just rearmament?
Gragl: The means are there. Europe is much stronger than Russia in terms of economy and population. What is lacking is coordination in the military sphere. That is why it is also working on developing a proper Defence Union. But unanimity is required for this. And Hungary and Slovakia will certainly oppose any such developments and plans. What seems more feasible to me is an international treaty between those member states that agree on a closer cooperation to advance this Defence Union. Furthermore, there is currently no joint procurement of military materiel. What the member states use at the moment is partly incompatible. Thus, weapon systems would have to be harmonised. A first step toward that end is the Skyshield initiative to establish a joint air defence and missile defence system. Austria can also participate in this as long as it retains control over firing weapons to defend its territory. There is no conflict with neutrality, as certain politicians claim. I generally think it's important to rely on our own defence industry. Because if we have American fighter jets, they could also be shut down remotely by the US. What we lack, however, is intelligence. Hopefully the British will help us there.
Are there already structures in place in the EU on which a defence union can be built?
Gragl: There is a common security and defence policy. In the past, foreign missions have taken place within this framework, such as the EULEX rule-of-law mission in Kosovo or the Atalanta military action against pirates off the Somali coast. Some member states have already agreed to strengthen their cooperation in the field of defence and security, known as PESCO for Permanent Structured Cooperation. The EU High Representative for Foreign Affairs and Security Policy can also play a coordinating and initiating role. Ultimately, however, it is up to the member states to decide whether or not to agree. And outside the EU, there is, of course, NATO, of which all EU members are parties, except Austria, Ireland, Malta and Cyprus.
With his repeatedly expressed intention to take over Greenland, Donald Trump makes it clear that for him might comes before right. What can the EU do about it?
Gragl: Simply threatening to use force to annex Greenland is already a violation of international law. However, militarily, there would be comparatively little the EU could do to counter it. But having said that, it would not be easy even for the superpower USA to take over a country against the resistance of the population. Greenland is an autonomous part of the Kingdom of Denmark. If the USA were to invade Greenland, Denmark could activate two mutual defence clauses: Article 5 of the NATO Treaty and Article 42, paragraph 7 of the Treaty on European Union. The latter states that in the event of an attack on EU territory, the member states must assist each other, although this does not have to be military support. Due to Austria's neutrality, it would not be required to provide military assistance. But we can nonetheless provide humanitarian aid. But be as it may, according to international law, every state has the right to self-defence, and all states may collectively help an attacked country, such as Ukraine.
Trump promised to quickly end the war in Ukraine. At first it seemed as if the US president wanted to make a deal with Putin without even involving the attacked country. What can international law tell us about this?
Gragl: One of the most foundational pillars of international law is the principle of sovereign equality. This means that every state is legally equal. So the US or Russia cannot negotiate on behalf of Ukraine. International law also states that states can never enter into a treaty at the expense of another. If Russia and the US were to do so, then this treaty would simply not apply to Ukraine.
In the meantime, negotiations have been held on a ceasefire, in which Ukraine is also involved. Trump wants Europe to take care of the country's security in the future. Great Britain and France want to provide peacekeeping forces. What options does Europe have to stand up for Ukraine?
Gragl: The EU signed an association agreement with Ukraine in 2014. But that doesn't include any obligation to provide assistance. That's why Ukraine is pushing to join the EU and NATO. But any accession requires unanimity among the member states. The USA, Germany – perhaps no longer under a Chancellor Merz in the future – Hungary and Slovakia are opposed to Ukraine’s accession to NATO. And Hungary also opposes Ukraine’s accession to the EU. But then, individual European states could also enter into bilateral security guarantees with Ukraine. And this would mean that if there is a ceasefire and Putin violates it, these bilateral security guarantees could be activated. Then, for example, French and British ground troops could intervene. Of course, this could result in a direct conflict with Russia and would therefore be extremely risky.
There have been repeated discussions about allowing Ukraine to access frozen Russian funds. Are there any new developments in this regard?
Gragl: The EU’s sanctions allowed for various Russian assets to be frozen, including those of the Russian central bank and those of oligarchs known to support Putin or the Kremlin. However, because there is a right to property and the Union does not act in violation of fundamental rights, it cannot freely dispose of these assets. Now a new directive has come into force. It states that if sanctions are circumvented, then these assets will be considered to be criminal tools and therefore be confiscated under criminal law. So if, for example, an oligarch manages to leave the port of Portofino with his yacht that has been placed under sanctions there, and is then stopped by the Italian coast guard, his vessel will be considered a tool used to commit a crime. Therefore, it can be confiscated and auctioned off, and the profits can go to Ukraine. This is not possible with the funds of the Russian Central Bank because they are protected by the law of state immunity. Only the interest they yield can be confiscated.
In the summer semester, you are offering a seminar on European Security Law for the first time. This concerns the security and defence policy of the EU. How do you see the future?
Gragl: I would have preferred to provide a seminar on peace theories; nobody here wants war. I see the EU's rearmament as a defence against war. There is this Latin saying "Si vis pacem para bellum": If you want peace, prepare for war. Putin doesn't understand any other language, only force. We have to be clear about that. Between 2014 and 2022, there were approximately 20 ceasefire agreements between Russia and Ukraine. Putin has broken every one of them. He has also repeatedly threatened the Baltic states. This must be taken seriously. We have the opportunity to make an effort now and avoid a major war, or we can make ourselves comfortable, in which case we will have to live under the Russian yoke. I am hopefully optimistic that Europe has finally recognised how serious the current situation really is.
More about Paul Gragl's research
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