The current war of words between Russia, Poland and the US over Poland’s decision to permit the US to locate 10 interceptors on its soil raises an interesting legal issue: Is the missile defense shield treaty legal? Can Poland enter into a new defense agreement with the US without approval of the EU? Doesn’t the Treaty of the European Union require each member state to cede control over security matters to the EU? The answer, it appears, isn’t so simple.

Generally, EU member states are obligated to “support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity” (Art 11(2)). Moreover, the EU Council of Ministers is charged with responsibility for defining the overall foreign policy and security guidelines for the EU, including “matters with defense implications”. And just to avoid any doubt, Art 11 requires each member state to “refrain from any action which is contrary to the interests of the Union”.

Certainly an act that would result in the redirection of Russian missiles toward the EU would be contrary to the interests of the Union....right? Arguably yes, but in this case it may not be enough to prevent Poland from taking such unilateral action.

The EU Treaty, it turns out, merely provides for the possibility of establishing a common defense policy, the creation of which is not yet a foregone conclusion. To date each member state retains control over its own foreign policy and defense. But what if the Reform Treaty is adopted and becomes binding law? Would Poland be in breach from day one? The answer is again found in Art. 17: “The policy of the Union…shall not prejudice the specific character of the security and defense policy of certain member states and shall respect the obligations of certain member states, which see their common defense realized in the North Atlantic Treaty Organization…”

In other words, as a member of NATO Poland is free to locate the missile interceptors on its soil.

-- Paul Fogo 

How Legal Is the Deal?

Yes, according to EU policy, the missle deal between the USA and Poland is legal and binding. However, there are other aspects to consider. Was the deal a necessity? Who will benefit from it, Poland, USA, the EU? Was the decision a moral one? Is this the way to avoid an arms race and the possibility of war? Shouldn't the Polish government be focusing on improving it's foreign policy and political relations with Russia rather than hindering it? One item which clearly seems confusing is that according to numerous polls, most Poles did not want this missle deal or any missles on Polish soil. This leads me to believe that the Polish government does not listen to the needs of the majority of Poland's population. Shouldn't the Polish government be working with it's people rather than against them?

You are right in pointing out that most Poles did not want the missile shield (according to polls by major press in Poland). The shift, however, came with the Georgia-Russia crisis and a poll published within days showed a growing support for the missile defense. I think the government took advantage of that shift in people's perspective and if ever questioned the argument will be one that the deal was signed at a time when the citizens were for it and understood the "need" for security.