The North Atlantic Treaty article 8 reads:
“Each Party declares that none of the international engagements now in force between it and any other of the Parties or any third State is in conflict with the provisions of this Treaty, and under-takes not to enter into any international engagement in conflict with this Treaty.”
In its NATO report published on 13 April 2022, the Finnish government interprets the article as follows:
”Article 8 of the NATO Treaty is important from the point of view of security of supply, as it prevents NATO members from concluding agreements with third parties which take precedence over the obligations of membership. This can be interpreted as meaning that if non-NATO country concludes an agreement with a NATO member state on co-operation in crisis security, the application of the agreement will always be secondary to the simultaneous needs of NATO member states. ”
I shall now consider whether the security of supply obligations between European NATO countries and Russia for oil, gas and coal and for large-scale uranium fuel trade between the United States and Russia violate Article 8 of the NATO Treaty. These commitments are commercial agreements between energy companies, so they are not interstate security of supply agreements. However, it is clear that these agreements are so important to the above-mentioned states that they have the full political approval and blessing of the states. This has been emphasized by the fact that the political institutions of the EU have taken energy purchases from Russia on the sanctions policy agenda, albeit to a very limited extent so far.
These security of supply agreements are not promises made by NATO countries to a non-NATO country, Russia, but they are commitments by NATO energy companies to buy energy from Russia. This may be in conflict with The North Atlantic Treaty.
It has become clear to the general public that these security of supply commitments to Russia to buy energy from Russia are very important for Western Europe, but little attention has been paid to the fact that the US produces as much as 20% of its electricity from uranium fuel imported from Russia.
So far, Russia has been very cautious and has respected these security of supply commitments to Europe and the United States for decades, and now Russia has a special incentive to honor its commitments because Russia is financing the war in Ukraine through energy trade.
An article by Karoy Vegh, Legal Adviser at NATO Headquarters, on Article 8 of the NATO Treaty and its present significance, was published in the venerable Emory International Legal Review in the year of NATO’s 70th anniversary in 2019. I rely on this article to assess whether commit-ments between the two parties to the NATO Treaty, and in particular Article 8 thereof. In the in-troduction of this article, Vegh states the following:
”Article 8 —in short terms— regulates the relationship between the obligations of the Parties under the Treaty and other obligations of the Allied Nations. Though the Article is a concise, two-part sentence, its exact role and importance is often under-appreciated within the system of the North Atlantic Treaty. While it might be assessed as a standard “treaty conflict” clause, its wording stipulates far wider obligations for the Allies.”
Regarding the nature of these commitments in the context of Article 8, Vegh writes:
”The fact that such engagements may extend beyond legally binding obligations gives Article 8 a unique political dimension in which member States have both legal and political responsibilities towards each other. This approach has far wider implications than it appears from the mere text of the provision. However, in fact, the Treaty establishes a special political and military Alliance where cohesion is key to fulfil its original mandate outlined in Articles 3 through 6 of the Treaty. From that perspective, the wider angle of engagements, extending beyond conflicting treaties is well justified and stands in line with the nature of the commitments the Treaty requires from its state Parties.”
Vegh returns to this broad political perspective of Article 8 in the summary at the end of the article:
”Still, when this complex sentence is viewed through the underlying nature and purpose of the Alliance, it becomes apparent that Article 8 represents the legal adhesive that ensures both the inter-nal and external cohesion of the North Atlantic Alliance.”
As Vegh continues to weigh compliance with Article 8:
“The only thing that stems from this part of Article 8 is a legally binding obligation on Allied nations to avoid concluding any engagements that are in conflict with their obligations under the Treaty.”
Article 3 refers to the first two articles and calls for the effective implementation of these NATO objectives. The first two articles set out NATO’s purpose and aspirations, which include safeguarding the conditions for stability and prosperity and avoiding conflict through economic policy measures.
Now, the commitments of European NATO members and US energy companies to buy energy from wartorn Russia violate Article 8 of the NATO Treaty, as they prevent the conditions for stability and prosperity from being safeguarded and economic policy efforts to avoid conflict. The situation is even more unsustainable, as these commitments now ensure that the conflict continues.
Two week ago, The New York Times reported that after the second round of the French election, the EU Commission was proposing a ban on oil imports from Russia. On Thursday night, US Treasury Secretary Janet Yellen warned EU countries not to stop importing oil from Russia, as it would cause economic chaos not only in Europe but around the world. Yellen, of course, failed to say that this would also cause a rise in the price of gasoline in the US, which is now plunging Democrats to destruction in the November by-elections. In the same breath, the EU High Repre-sentative Josep Borell said that several EU member states – including, many NATO countries – would call for such an attempt to abandon political commitments to import oil from Russia, not to mention gas, which is now a lifeline and the question of life and death for Germany, into question. In Germany, the cooling of homes and industry would come to a halt if gas purchases from Russia ceased.
The significance of Article 8 as part of the NATO Treaty is now irrelevant because NATO members do not comply with it.
NATO’s unity, guaranteed by Article 8, is now in jeopardy with the energy purchase commitments made by Western Europe and the United States to Russia in the wake of 30 years of green climate policy. Until 15 years ago, Europe produced more gas than Russia.
Russian operators bought campaigns from green environmental organizations in the early 2010s to prevent Europe from developing technology based on horizontal drilling and fracking to exploit Europe’s vast oil and gas shale resources. In the U.S., these campaigns only succeeded in their goals when Joe Biden was elected President of the U.S. in the 2020 election.
We Finns are assured that Article 5 of the NATO Treaty provides reliable security guarantees for Finland. NATO countries cannot comply with Article 8 because the circumstances and the green energy policy pursued do not allow it to be complied with. It is only natural to think that Article 5 does not have to be complied with, if circumstances do not allow it to be complied with.
It now appears that EU will impose a ban to Russian oil imports to its member states. This will quite likely increase dramatically gas prices around Europe and perhaps especially in countries like Finland, which used to import a lot of Russian oil. In 2021 Finland bought 81 % of its crude oil from Russia.
- “BRUSSELS/LONDON, April 11 (Reuters) – OPEC told the European Union on Monday that current and future sanctions on Russia could create one of the worst ever oil supply shocks and it would be impossible to replace those volumes, and signalled it would not pump more.”
- Yesterday BBC was puzzled “Oil prices have soared. Why won’t Opec bring them down?”
- Vegh K. The North Atlantic Treaty and its Relationship to other ”Engagements” of its parties – A commentary on article 8. 34 Emory Intl’l L. Rev 136 (2019).