NATO, the UN and the Use of Force: Legal Aspects

NATO, the UN and the Use of Force: Legal Aspects

3 NATO's Future "Strategic Concept": From "Out of Area" to "Out of Treaty"?

At present, NATO is hammering out a new "strategic concept" to define its role in the 21st century. It is to be adopted on the occasion of the Alliance's 50th Anniversary Summit in Washington in late April 1999. At the time of writing, the negotiating process is still under way. Most documents relating to the issues raised in the present paper are confidential. Nevertheless, the general direction in which the United States in particular wants the Alliance to move in the future is quite clear. For instance, in the address already mentioned above, Deputy Secretary of State Strobe Talbott had, among other things, the following to say about what he referred to as the "deepening" of NATO:

In that project [i.e., the transformation of NATO] ... we must be ambitious. NATO was founded and designed to deal with the Soviet Union and the Warsaw Pact. That state and that alliance are gone, and so is the threat they posed ... This isn't to say that NATO's original task of collective defense is finished or that collective defense is no longer at the core of the Alliance's mission. NATO must maintain its capability enshrined in Art. V of the Treaty of Washington, to deter and if necessary defeat what might be called classic aggression. Such a threat could arise in the future. But it is less likely to do so if NATO remains robust and ready.

However, that is not enough if NATO is to remain relevant to the times. With the end of the Cold War, new, less spectacular, but more diversified threats have arisen. Disputes over ethnicity, religion or territory, can, as we've already seen, trigger armed conflict, which in turn can generate cross-border political instability, refugee flows and humanitarian crises that endanger European security.

NATO must be able to deal with threats like these while maintaining its core function of collective defense.

...

[I]n re-inventing NATO, [we] must make hard political choices and a convincing political case with our constituencies. Here, I would submit, is the case we should make about the role and mission of the new NATO: It should start, ... , with Art. V of the Washington treaty - our commitment to collective defense. But we also need to recognize that most current and foreseeable European security challenges involve non-Art. V missions; therefore we need to be better prepared to deal with them as well.

Furthermore, in this increasingly complex and interdependent world of ours, we face a more diverse and far-flung array of threats than we did in Truman and Adenauer's day. The proliferation of weapons of mass destruction and the scourge of terrorism do not fit neatly into our old slogans and concepts like "The Free World" and "The Iron Curtain," or old geographic simplicities that suggested out-dated geopolitical ones - like "East versus West." ... This means that as we maintain our ability to defend the territorial integrity of all NATO members, we also need forces, doctrines and communication assets that will allow us, when necessary, to address the challenges of ethnic strife and regional conflict that directly affect our security but that lie beyond NATO territory - as we have done, and are doing, in the Balkans. Also, it is mere prudence and common sense, not excessive ambition, to suggest that a truly modernized Alliance should be able to cope effectively with the all-too-modern challenges posed by the spread of ballistic missiles and WMD [weapons of mass destruction].

Some commentators contend that such adaptations require a revision of the North Atlantic Treaty, or believe that we are proposing one. This is untrue. The framers of the Washington Treaty were careful not to impose arbitrary functional or geographical limits on what the Alliance could do to protect its security.

Let me be clear: I am not saying there are no limiting factors on what NATO can and should do. Of course there are. NATO is a consensus organization, and it defines its common interests accordingly - by consensus of its members. We would not go anywhere as an Alliance unless all our members want us to go there. No ally can force others to agree to a NATO action. Under Art. IV of the Treaty of Washington, NATO members will consult when their security is threatened, and together they will determine the appropriate response.

There are also limits implicit in the military capabilities of the Allies themselves. No one is suggesting that we deploy NATO forces, say, to the Spratley Islands. ²⁸

The Deputy Secretary-General of State concluded this point by saying:

Nor are we suggesting that NATO act in splendid isolation from - or high-handed defiance of - the United Nations or the OSCE. All NATO Allies are members of both of those organizations. We believe NATO's missions and tasks must always be consistent with the purposes and principles of the UN and the OSCE. We expect NATO and its members will continue to be guided by their obligations under the UN Charter and the Helsinki Final Act.

At the same time, we must be careful not to subordinate NATO to any other international body or compromise the integrity of its command structure. We will try to act in concert with other organizations, and with respect for their principles and purposes. But the Alliance must reserve the right and the freedom to act when its members, by consensus, deem it necessary. ²⁹

The future role thus envisaged for NATO and the legal-institutional consequences which the proposed new concept implies for the relationship between NATO and the United Nations also became apparent in a "Resolution on Recasting Euro-Atlantic Security", adopted by the North Atlantic (Parliamentary) Assembly in November 1998. In this document, the Assembly,

[g]uided by the vision that NATO in the 21st century should be an enduring political-military alliance among sovereign states whose purpose is to apply power and diplomacy to the collective defence and promotion of Allied security, democratic values, the rule of law, and peace,

urged member governments and parliaments of the North Atlantic Alliance

...

b. to accelerate progress in developing capabilities to meet emerging security challenges that may demand both Article 5 and non-Article 5 missions, including meeting the threat of the proliferation of weapons of mass destruction and international terrorism and enhancing power projection, surveillance assets, communications, sustainment, information superiority, and interoperability;

.....

d. to seek to ensure the widest international legitimacy for non-Article 5 missions and also to stand ready to act should the UN Security Council be prevented from discharging its purpose of maintaining international peace and security;

e. to affirm that the inherent right of individual or collective self-defence, also enshrined in Article 51 of the UN Charter, must include defence of common interests and values, including when the lattter are threatened by humanitarian catastrophes, crimes against humanity, and war crimes;... ³⁰

Certainly, these formulas will not be the last word as to how NATO will define its future legal-institutional relationship with the universal organization of the UN. But the message which these voices carry in our context is clear: if it turns out that a Security Council mandate or authorization for future NATO "non-Article 5" missions involving armed force cannot be obtained, NATO must still be able to go ahead with such enforcement. That the Alliance is capable of doing so is being demonstrated in the Kosovo crisis. Whether such a course is legally permissible is a different matter. In the November 1998 resolution of the North Atlantic Assembly, two different legal arguments can be identified in this regard. According to the first one, the right of self-defence "also enshrined" in Article 51 of the UN Charter is to be interpreted so broadly as to include the defence of "common interests and values". This text calls for two brief observations: to start with, the wording might create the impression that self-defence in international law has a broader scope than that foreseen in Article 51, i.e., that it is justified not only against armed attacks but beyond that specific instance also against other threats. What other menaces the authors have in mind is then made clear: attacks on "common [i.e., NATO] interests and values". To thus widen the scope of self-defence, as a legal institution, is intolerable, indeed absurd, from a legal point of view and does not deserve further comment. What might be mentioned, however, is that "respect for the obligations arising from treaties and other sources of international law" ³¹ also counts among the values common to NATO member states.

The second argument, contained in para. d. of the North Atlantic Assembly resolution, reads like a codification of the course that NATO is steering in the Kosovo crisis. Therefore, the legal critique put forward in the preceding part of the present paper is fully applicable. It is probably no coincidence that the wording chosen for para. d. is similar to that of the "Uniting for Peace" Resolution of the UN General Assembly of 3 November 1950, considering the keenness of NATO to have its actions partake of UN legitimacy, so to speak. But of course, according to "Uniting for Peace", it was the General Assembly, as a UN organ comprising all Member States, that was to shoulder the burden of maintaining or restoring international peace and security in lieu of the Security Council, not an extraneous regional organization comprising less than a quarter of UN membership.

"Uniting for Peace" was an attempt to fill a gap in the Charter system of collective security during the darkest period of the Cold War (and, of course, of the hot war in Korea). As mentioned earlier, during the same period several fundamental Charter provisions, like Articles 2(4), 51 and 53, were subjected to "realist" reinterpretations in order to allow individual states as well as regional or defence organizations to return to pre-Charter conditions as regards the use of force. Considering the almost permanent stalemate in the Security Council extending over decades, such ersatz constructs might have had a certain legitimacy at the time. But today things are different: since the end of the Cold War, the Security Council is functioning precisely in the manner envisaged in 1945. During the decade up to and including 1997, Chapter VII was invoked no less than 112 times; during the same period the number of vetoes cast was extremely small. Considering this state of affairs, to circumvent substantive and, in particular, procedural cornerstones of Charter law is, therefore, much more dangerous to the health of the UN peace system than the aberrations of the past.

In view of the Russian position vis-à-vis the prospect of NATO "peace missions" engaging in military enforcement out of area, a new formula has recently been put forward, according to which the necessary legal basis for non-Article 5 missions comprising the use of armed force is, "as a rule", to be provided either by a mandate of the UN Security Council or by acting "under the responsibility of the OSCE" (thus the address of German Federal Chancellor Gerhard Schroeder to the Munich Security Forum on 6 February 1999). ³²

The alternative thus offered may possibly appease the Russian Federation, but it cannot satisfy the international lawyer: the OSCE has grown into a regional organization in the sense of Chapter VIII of the Charter. As such, any military enforcement action under its responsibility will require authorization by the UN Security Council according to the rules described earlier. Thus, such peace enforcement under the aegis of the OSCE will not only require the consent of the Russian Federation but also that of the Security Council in accordance with Article 53 para.1 of the UN Charter. From the standpoint of United Nations law, therefore, the issue is not only how to obtain the consent/participation of Russia in peace enforcement but how to achieve this at the regional level in full conformity with the Charter.

Turning to a more subtle, "linguistic", point, it is interesting to observe how certain, particularly US, voices place the United Nations in the company of regional organizations or similar institutions. For instance, in the Bonn address of Deputy Secretary of State Strobe Talbott repeatedly referred to already, we find the following observation:

We started [the] process of institutional joint action in Bosnia, and we have built on it in Kosovo. We have seen five bodies - NATO, the EU, the OSCE, the United Nations and the Contact Group develop an unprecedented and promising degree of synergy. By that I mean that these disparate but overlapping organizations have pooled their energies and strengths on behalf of an urgent common cause. ³³

In the current debate, the formula of the UN and relevant Western regional institutions "mutually reinforcing each other" seems to have gained acceptance. To the present author, this way of describing the relationship of the institutions mentioned is to be treated with great caution. On the one hand, it is undeniably reassuring to see the "political authority" of the UN emphasized by Mr Talbott relying on and backed up by the muscle of more dynamic regional institutions. But on the other hand, in political as well as legal discourse, this view could (is meant to?) have the effect of putting the United Nations on the same hierarchical level as these institutions, thereby relativizing the legal primacy due to the obligations flowing from the UN Charter. ³⁴ In most quarters of the world, including Germany, it is accepted that the UN Charter is not just one multilateral treaty among others but an instrument of singular legal weight, something akin to a "constitution" of the international community. This status of the Charter should not be prejudiced by NATO.

In his Bonn address, the US Deputy Secretary of State spoke of the hard political choices to be made "in re-inventing NATO". ³⁵ In the same vein, however, he denied that such re-invention would require a revision of the North Atlantic Treaty. In the present paper, focusing as it does on UN law, only a few brief comments can be made in this regard.

If we compare the practices of amendment and revision of the constituent instruments of international organizations in general with the capacity of NATO to absorb, as it were, new roles and missions without any formal changes considered necessary to the original founding treaty, this flexibility is already astonishing at present, even before the imminent "re-invention". Thus, quite aptly, a former member of the German Constitutional Court once spoke of the NATO Treaty as "a treaty on wheels".

At the level of international law, the power of member states of international organizations to develop, amend and revise the constitutive instruments of these institutions by mutual agreement or subsequent practice is far-reaching. In the case of organizations working on the basis of majority decisions, the legal limits to such changes will be debated, in some instances adjudicated, in terms of doctrines like those of ultra vires versus "implied powers". These issues will hardly arise in the practice of international organizations which, like NATO, arrive at decisions by unanimous vote or employ a consensus method. Hence, from that point of view almost any transformation of NATO is feasible as long as all members agree, and this without a formal revision of the constituent treaty instrument. In this regard, Mr Talbott's remarks are perfectly correct. However, no unanimity of NATO member states can do away with the limits to which these states are subject under peremptory international law ( jus cogens ) outside the organization, in particular the higher law (cf. Article 103) of the UN Charter on the threat or use of armed force. NATO is allowed to do everything that is legally permissible, but no more. Legally, the Alliance has no greater freedom than its member states. This point has been the main thrust of the present paper.

However, the question of legal limitations to the transformation of NATO leads to a further issue: that of the democratic legitimacy of such "re-invention". The acuteness and topicality of this question may vary from country to country. In the Federal Republic of Germany it has been at the heart of several great constitutional controversies ultimately resolved by the Federal Constitutional Court ( Bundesverfassungsgericht). In these cases, one of the decisive issues was the extent to which alterations of existing obligations deriving, inter alia , from the NATO Treaty, or the creation of new such obligations, could be affected by way of "soft law", for instance by decisions of the North Atlantic Council, while still being covered by the Bundestag's original approval of the NATO Treaty almost half a century ago. The Court was prepared to go quite far in allowing the dynamic evolution of NATO to elude the prerequisite of new parliamentary approval, but it did indicate certain borderlines, among them, in its 1994 judgment on the constitutionality of German participation in NATO/WEU action against the FRY in the Mediterranean and in UNOSOM II, the conformity of all these activities with the rules and procedures of the UN Charter as the overarching, universal system of collective security. Hence, in view of the strong emphasis placed on the singular, exceptional character of, and the express denial of precedential value to, the use of force by NATO against Yugoslavia threatened in the fall of 1998 by the German Government as well as the Bundestag, a general authorization for a "new" NATO to proceed to military enforcement out of area without UN Security Council assent, if necessary, might well transcend the limits set up by the German Basic Law. The German Constitution provides for several procedures to have this question adjudicated by the Karlsruhe Court. In sum, there is reason for caution here; this is also because the Bundesverfassungsgericht has demonstrated its willingness to uphold the constitutional requirements for German participation in international organizations and supranational integration even against heavy political headwinds. ³⁶

As the Background Paper for the present Roundtables, prepared by Jeffrey Laurenti for the United Nations Association of the U.S.A., puts it so well, some voices in the current debate fear

that abandonment of the Security Council's asserted monopoly on determining the lawful use of force against others, except in self-defense, could put the world community on a slippery slope of competing claims of "rights" to intervene - with the potential consequence of escalating hostilities rather than resolving them. Some see a disquieting historical precedent for alliance self-authorization for use of force in the Warsaw Pact's intervention in Czechoslovakia in 1968 (an intervention that was, to be sure, directed within its own membership). Some warn that such fragmentation of lawful authority on use of force could prompt the emergence of counter-alliances among those fearful of high-handed interventionism by an overweening Western alliance. If the U.N. has too many inhibitions about the use of force, these worry, NATO under U.S. pressure may have too few. ³⁷

The present author shares these concerns. He feels in good company, in view of the vehemence with which the German Government as well as the Bundestag emphasized in the October 1998 debate that the decisions taken by NATO on Kosovo must not be seen as a precedent leading to a general right of the Alliance to intervene militarily out of area without a Security Council mandate/authorization. The genie of NATO "self-authorization" must not be let out of the bottle. Apparently, this is the opinion of other NATO member governments as well.

The law of nations being a horizontal system, claims to international legality and admissibility put forward by its actors, be they states or organizations, are prone to have a boomerang effect. True, at present NATO is the only regional institution capable of countering (self-defined) security challenges effectively, if necessary by military means. But things might change in the future, and other states or new alliances in Europe or in other parts of the world might then also proclaim to "stand ready to act" without the Security Council, or affirm to defend certain "interests and values" by armed force (to use the language of the November 1998 North Atlantic Assembly resolution). Reference to 1968 does not seem to be far-fetched: when the Soviet Union followed up on the Warsaw Pact intervention in Czechoslovakia with the "Brezhnev doctrine", condemnation by the West, particularly the United States, of both the invasion and the general concept justifying it was resolute and strong; statements about the invalidity of such inter se derogations of fundamental Charter precepts abounded. One wishes that some of the respect paid to the UN Charter on that sad occasion would also mark the debate on NATO's strategic concepts for the 21st century. The fact also mentioned in the UNA Background Paper, that the Warsaw Pact's intervention in 1968 was directed within its own membership, is not designed to quell legal concerns; on the contrary, the (unauthorized) threat or use of force against a state which is not a member of a certain international organization, and which might therefore not share this organization's "common interests and values", appears even more indefensible than force employed within the organization's circle of members.

In this regard, the announcement that the new NATO is to become more instrumental in meeting the threat of proliferation of weapons of mass destruction is of a particularly "extrovert" nature, considering, as the UNA Background Paper does, that, aside from its nuclear-armed members, no country in NATO's own region has programmes for the development of these weapons. As the Background Paper also mentions, the international treaty regimes controlling these weapons all provide for the Security Council to enforce them. In light of this, it is to be hoped that a future role of the Alliance in this field would be linked to the already existing one of the Council by foreseeing the prerequisite of a Security Council mandate for any NATO action which assumes the nature of enforcement.

29 Manuscript, at 4, 7f.

30 NATO Doc. AR 295 SA (1998).

31 Preamble to the UN Charter.

32 Bulletin des Presse- und Informationsamts der Bundesregierung No. 8, of 22 February 1999, at 91.

33 Manuscript, at 9.

34 Cf. on Charter Art. 103 supra Section 1.

35 Cf. supra text at note 28.

36 Cf. the 1993 Maastricht decision, [1994] CMLR 57.

37 J. Laurenti, "NATO, the U.N., and the Use of Force", background paper prepared for the United Nations Association of U.S.A (1999).

© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute.
This file was last modified: Tuesday, October 14, 2003 01:13PM