Introduction

Ever since February 2022, a specter has been haunting Europe, the specter of increasing uncertainty, greater fear, but high expectations. The Russian aggression against its Ukrainian neighbour has thrown the tranquillity of the post-Cold War security paradigm into the air. It has sounded the alarm in NATO member states in Europe. It has also brought into question the possible role of NATO in the conflict, and possibly its own hegemon's commitment to fully respond to the alliance's legal arrangements once the Russian aggression extends beyond the borders controlled by Kiev.

In this essay I want to discuss the role of a hegemon and its preferences on international cooperation. I will consider the role of the United States as a military hegemon within NATO in European cooperation in the field of security and defence outside the structures of the North Atlantic alliance. What the article wants to highlight is the lack of normative political legitimacy of the collective defence agreement highlighted by NATO's Article 5 and its contribution in capitalizing on the potential of European military cooperation. The first part of the analysis will expose the legitimacy and credibility issue of Article 5 as a legal constitutionalist product subject to a two-level game negotiation.  The second part is dedicated to both the hypothesis of a decided reduction of military action by the United States on NATO's Eastern front according to the logic of political constitutionalism empowered rather than subject to the two-level game, and European response to such a scenario of Washington's low or limited commitment to defend NATO member states.

The limits of legal constitutionalism

To begin with, the assumption of a unitary political actor in international negotiations has become far-fetched. Each state possesses within itself a constellation of self-interested agents, making a domestically uncoordinated response of the national government a problem of legitimacy and credibility among its external partners. Each international negotiation is thus subject to a two-level game, in which governments initially commit fairly to negotiating an international agreement between themselves (say Level 1 phase) the result of which is then subject to domestic negotiations with their own internal agents (popular consultation) on the acceptability of the agreed terms (say Level 2). The importance of the two-level game negotiation is even more important as the lack of domestic political legitimacy produced by avoiding subjecting internationally negotiated terms to public deliberation can produce a credibility issue in implementing the international commitment (Putnam, 1988). This is what the theory of legal constitutionalism omits in its attempt to create a legal framework in which all political participants can engage credibly. According to the theory, a legitimate political regime is subject to a set of legal rules that exert pressure on the same regime to not renege on its commitments to the rest of the participants to the political contract (Bellamy &. Weale, 2015). But what the theory necessarily produces is the maintenance of the same lack of ex ante credibility. There is not much political legitimacy to boost trust in the execution of an international agreement if its effects are not subject to public opinion in each member state. An empirical example of such a legal contract is Article 5 of NATO.

Rightly considered as the cornerstone of the alliance's mutual defence character, Article 5 produces instant effects on the military mobilization of the adhering states: "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 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" (NATO, last updated 2023). While legally mandatory as agreed by the member countries at the Level 1 phase, the size and nature of any automatic reaction lacks a Level 2 popular deliberation in each state subject to such action, therefore shielding public decision-making from any control over their fate. In a nutshell, the immediate reaction following the activation of article 5 is not a political Level 2 expression, but a Level 1 legal issue only, therefore subject to the possible lack of credibility in its full enforcement.

Political constitutionalism: European military cooperation under the retreat of the hegemon

As mentioned, NATO Article 5 suffers from a normative political illegitimacy in the absence of domestic deliberation on the immediate and automatic actions produced by a legal constraint. As such, no member can commit itself to full credibility in its international obligations, creating a void of national insecurity. In contrast, a process of subjecting the terms of the agreement to domestic debate, making internal deliberation subject to increased legitimacy, can produce greater reliability in internationally negotiated actions. This is what the theory of political constitutionalism posits in contrast to legal constitutionalism (Bellamy &. Weale, 2015). Therefore, only through the existence of a Level II deliberation can a Level I outcome become credible. Consequently, there are important questions to be asked. How can this theoretical juxtaposition be translated into practice within NATO? And how can it affect European cooperation in military affairs?

As the military hegemon within NATO, the United States is the primary target of this empirical exercise. The American military superiority vis-à-vis the other North Atlantic partners is uncontested, making Washington's response to Article 5 an important exercise in European defence and security cooperation. Once the Trump administration settles in the White House and with the possibility of Russian aggression extending beyond the western borders of Ukraine, there is enough room for a worst-case scenario analysis. Building on this, Washington's enforcement of its commitment to mutual defence might suffer from a weak credibility at Level 1 due to the lack of Level 2 deliberation in American society of the US response to the defence of Eastern Europe in the event of Article 5 activation. Placing it under public debate by President-elect Donald Trump could be envisaged as limiting US duties.

Over-dependence on a military hegemon and the lack of credibility it might give to the normative act given by Article 5, stimulates European capacity-building in defence that has long been slowed down both by the legal constitutional assurance of the US, and by the existing differences between European states. Within the framework of the hegemonic American security umbrella over NATO, the military coordination of European states has long been suffering an immediacy bias based on divergent perceptions of how close a loss-aversion conflict is to their borders. The immediacy of the Russian aggression is perceived differently in Western Europe than in the East, thus putting a brake on the collective security imperatives (Genschel, 2022). Similarly, the European asymmetry of economic and diplomatic relations with Russia has played an analogous role with some countries being more dependent on Russian energy imports (Hungary, Slovakia) than Spain, Portugal or the United Kingdom, while the more open diplomacy towards Moscow as expressed by Germany and France stands in high contrast with the more aversive stances of Poland, Romania or the Baltic states (Genschel, 2022). But once the hegemonic security umbrella of the US is put under question, all European states could converge around the immediacy of the Ukrainian conflict with consequently less asymmetry in Russian energy dependency and friendly diplomacy.

Conclusion

Based on the available evidence, the role of a hegemon and its preferences for deliberative Level II public consultation under the auspices of political constitutionalism, rather than immediate legal action as agreed at Level I negotiation according to legal constitutionalism, creates a lack of firm commitment and credibility. Placed in the European context, rather than minimizing the need for diplomatic and economic alignment on Russia among the European states as undesirably produced by legal constitutionalism within NATO, the case for political constitutionalism stimulates strong European collective security imperatives in security and defence. Europe, in a worst-case scenario, could face two devastating phenomena, one exogenous and one endogenous: the possibility of Russian aggression extending to NATO's eastern borders, and the chance that the Trump administration would submit to public deliberation in the US the effects of Article 5 in the event of a conflict in Eastern Europe. Together, they create both an immediate reaction on the need for deepening European military cooperation, and a better alignment of economic and diplomatic policies towards Russia. Under Trump's US, the response to NATO Article 5 might be legally constraining, but politically uncertain.

Bibliography:

Bellamy, Richard Bellamy & Albert Weale, "Political legitimacy and European monetary union: contracts, constitutionalism and the normative logic of two-level games", Journal of European Public Policy, 2015.

Genschel Philipp, "Bellicist integration? The war in Ukraine, the European Union and core state powers", Journal of European Public Policy, 2022.

Putnam D. Robert, "Diplomacy and Domestic Politics: The Logic of Two-Level Games", International Organization, 42(3), 1988.

The North Atlantic Treaty Organization, "Collective Defence and Article 5", accessed December 5, 2024, NATO - Topic: Collective defence and Article 5.