EUROPEAN SOVEREIGNTY AS A LEGAL FICTION: WHY NATO IS THE MECHANISM OF STRATEGIC SUBORDINATION OF THE WEST
By Antonio Tejeda Encinas | Doctor of Law (SJD / Dr. iuris) | Techno-Geopolitical Analyst | President Comite Euro Americano de Derecho Digital -CEA Digital Law
I. The structural diagnosis: NATO as a device for the hierarchical codification of power
Since 1949, Europe has lived under a comforting illusion: that its collective security rests on an alliance among equals. The North Atlantic Treaty formally established a framework of mutual defense that, in principle, placed all parties on an equal footing in the face of the threat. Seventy-six years later, that premise has revealed itself to be a rhetorical construction devoid of any real strategic foundation.
NATO is not a symmetrical alliance. It is a hierarchical system for the codification of power in which Washington occupies the apex of decision-making with no European equivalent. That apex is not merely military, although it is, primordially so; it is technological, energetic, industrial and, ultimately, political. The United States does not negotiate with Europe within NATO; it communicates strategic decisions to it, which the Europeans subsequently ratify, often under the illusion of having co-decided them.
The mechanism operates through a structural subordination wrapped in the language of cooperation. When Washington decides on extraterritorial sanctions against adversarial geopolitical actors, NATO and the transatlantic framework become de facto executors of that policy without any prior strategic debate in which European interests carry equivalent weight. When the United States redefines its industrial policy, from “offshoring” to “nearshoring” and “friend-shoring”, Europe adapts. When it determines that 5G technology requires the exclusion of certain suppliers, Atlantic national security serves as an alibi for decisions that Europe has not articulated for itself.
In none of these cases is there a genuine multilateral decision-making framework. There is, instead, a de facto hierarchy in which the hegemonic power defines the parameters and the European allies, formally “consulted”, fall into line for a simple reason: they lack any defense alternative. That lack is not accidental; it is the result of structural political decisions adopted over decades.
II. The irresolvable legal contradictions of the Euro-Atlantic order
The European Union and NATO operate in a space of supposed complementarity that is, in reality, an unresolved contradiction. The Treaty on European Union, in its Article 42.7, establishes an obligation of mutual aid and assistance in the event of armed aggression against a Member State “on its territory”. Simultaneously, the North Atlantic Treaty articulates in its Article 5 an obligation of collective defense under a political-military framework led by the United States.
When both obligations point in the same direction, a clear external adversary, typically Russia, the tension remains latent. But what happens when the vectors cross or potentially collide? Let us suppose a scenario in which Denmark, a Member State of both the EU and NATO, becomes embroiled in a territorial sovereignty dispute with an Atlantic power over a strategically sensitive territory. The legal question is simple but devastating: what is the center of gravity of the response, Article 42.7 TEU or NATO’s Article 5?
The honest jurist knows that Article 42.7 is not a “European Article 5” with its own chain of command, logistical structure and strategic planning, but an essentially intergovernmental assistance clause, organized case by case among Member States and heavily conditioned by national options. To pretend to read it as a NATO in miniature is a formalism useful for seminars, but irrelevant to the reality of power. The dysfunction is precisely that: Europe has granted itself a legal obligation of mutual defense without endowing it with the institutional, logistical and technological muscle that would transform it into an effective guarantee against any threat, including that of a hegemonic ally.
The current debate over whether or not Article 42.7 applies to Greenland illustrates this with uncomfortable precision. One part of the doctrine holds that any aggression against a territory under Danish sovereignty could activate the aid and assistance clause; another stresses that only territories fully integrated into the scope of application of the Union Treaties would be covered. The mere fact that European jurists are debating whether an armed aggression against a territory associated with a Member State would or would not fall within the perimeter of mutual defense demonstrates the extent to which “European strategic sovereignty” is today an unfinished category.
The Treaty of Lisbon attempted to remedy this deficit through the Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP). Both have failed structurally: the unanimity requirement in defense matters makes every advance hostage to 27 potential vetoes, while NATO, under American leadership, operates with a logic of concentrated political command. In practice, Europe negotiates with itself while Washington executes.
III. Geopolitical redesign and the crisis of strategic availability
What has lain dormant for decades is now emerging with clarity: the post-World War II order is decomposing. The symptoms are multiple, the war in Ukraine, the tensions in the Indo-Pacific, the debate over the strategic status of Greenland, but they all point to a common reality: the powers are shamelessly redefining their perimeters of interest, resources and military projection.
Europe, which has entrusted its security to a subordinated alliance, suddenly finds itself without autonomous defense. Not because the United States has abandoned it; on the contrary, it maintains a significant military presence on the continent. That presence no longer responds to a commitment to the “defense of Europe” in the strict sense, but to American positioning within the Eurasian competition against Russia and China. Europe is the stage on which Washington plays its principal games; whether Europe wins or loses is part of the calculation, but does not determine it.
This shift is strategically coherent from the American point of view. The United States has global interests; Europe has European interests. When those interests coincide, NATO functions as a mechanism for legitimizing decisions taken in Washington. When they diverge, NATO becomes a space where the American priority is imposed and the European one is relegated. No symmetry is possible when one of the parties can unilaterally decide the perimeter of the threat and the other depends on it for its own defense.
Moreover, the geopolitical redesign has a technological dimension that can no longer be relegated to a footnote. Control of the technological perimeter, critical infrastructure, data, semiconductors, cyberdefense, is today as relevant as control of physical territory. Through its corporations and its regulatory mechanisms (extraterritorial sanctions, export controls, investment screening), the United States conditions which European technologies may be developed, with whom they may cooperate and under what restrictions. Atlantic security is used as a legitimizing vector for those decisions.
Europe, in other words, uses NATO to subordinate itself: it calls cooperation a scheme in which it has outsourced to a third party the definition of its risks, its technological allies and its industrial limits.
IV. The paradox of mutual defense in a hierarchical order
There is a question that no European institution has answered honestly: what does “mutual defense” mean when one of the members of the alliance is a global hegemonic power and the others are regional powers of limited capacity?
The theory of collective defense rests on a premise of relative symmetry: proportional contribution, shared benefit and a common external threat. But in Atlantic practice, the threat is defined in Washington. When Russia is the priority, European funds are directed toward the eastern flank. When China rises on the American agenda, NATO begins to pivot discursively toward the Indo-Pacific, even though most European states have no real capacity to project themselves into that theater.
What makes a true “mutual defense” structurally impossible is that, in the event of a direct conflict between the United States and another NATO member, there is no institutional mechanism that would allow Europe to act as arbiter or counterweight. The design codifies a subordination: Washington decides, the rest execute or abstain.
V. The indecorous question: can NATO protect Europe from the United States?
This is the question that official discourse avoids, but that any serious geopolitical analyst must pose: is there any mechanism within the Atlantic architecture that would allow Europe to defend itself against an aggression, pressure or strategic imposition originating from the United States?
The answer is clear-cut: NO. The North Atlantic Treaty does not even contemplate the hypothesis that the hegemonic power could act against the vital interests of an ally as an aggressor. This is not a loophole; it is design. NATO was built to allow Washington to act under the legitimacy of a collective alliance, not to provide the Europeans with tools to restrain it.
Let us take the logic to its extreme to show the fragility of the system. If an American president were to decide that the strategic resources of Greenland, or the geographic position of Ceuta, Melilla or the Canary Islands, were essential to the national security of the United States, to the point of justifying extreme pressure or even an act of force, what could Europe do? Invoke NATO’s Article 5 against Washington? Inconceivable. Activate Article 42.7 TEU as a basis for articulating a European defense against the ally? Theoretically imaginable, politically suicidal.
The reason this scenario has not materialized is not the solidity of the legal framework, but the circumstantial convergence of interests. That convergence is not structure; it is circumstance. And circumstances change.
VI. Toward an autonomous European defense: the necessity that can no longer be postponed
Europe needs, with an urgency that no longer admits evasive rhetoric, an autonomous defense capability that does not depend on American will. This does not imply an empty leap out of NATO overnight, that would be strategically reckless, but it does demand building, in parallel, a military, technological and industrial structure that can function without the Atlantic umbrella.
That means, in concrete terms:
- A real European military integration, one that overcomes the current mosaic of national armies and advances toward common command, planning and deployment capabilities.
- A strategy of technological autonomy in semiconductors, artificial intelligence, cyberdefense and data control that reduces dependence on American infrastructure and platforms.
- An energy policy that minimizes vulnerability to sanctioning decisions taken by others, whether American or third parties, and that is aligned with a European security design, not a subordinated one.
- A normative and operational architecture that places, in the hierarchy of decisions, Article 42.7 TEU as the highest expression of European defense, and not as a footnote to NATO’s Article 5.
None of this is possible while the European Union remains trapped in unanimity on defense matters and in the political comfort of Atlantic tutelage. France has understood this since De Gaulle; Germany is beginning to sense it; the rest of the continent oscillates between unease and inertia.
VII. The deferred choice: sovereign power or administered territory
Europe faces a choice that is not technical, but existential: to decide whether it wants to be a sovereign actor in history or resign itself to being a territory administered by an external power under the reassuring narrative of “collective defense”.
NATO, in its current formulation, makes the first option unviable. Not because American intent is necessarily predatory, but because the institutional architecture codifies a hierarchy that excludes symmetry. As long as Europe delegates its defense to Washington, it will delegate its foreign policy, its technology policy and, ultimately, its own sovereignty.
To think about the post-NATO horizon is not an exercise in anti-Americanism; it is an exercise in strategic maturity. Europe must equip itself with an autonomous defense capability that allows it to cooperate with the United States from a position of equality and not of dependence. Only then will the European Union cease to be a sophisticated legal fiction and begin to exist as a full subject of the international system.
