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