NATO, the UN and the Use of Force: Legal Aspects 4 Concluding Remarks It is disquieting to observe how the UN/NATO relationship has changed within a few years. In 1994, at its Brussels summit, NATO had declared its readiness to cooperate with the United Nations in "peacekeeping and other operations under the authority of the UN Security Council". In December 1997, the Final Report of a high-level International Task Force on the Enforcement of UN Security Council Resolutions regarded as "doubtful that NATO would consider taking enforcement action, at least out of area, without Security Council authorization". 38 Less than a year later these doubts were dispelled. In the field under consideration here, NATO action has moved from full collaboration with the UN in both peacekeeping and enforcement in Bosnia to enforcement action in place of the UN, albeit still authorized by the Security Council to implement the Dayton Agreement, and now in the context of Kosovo it has shifted to enforcement in place of the UN without such authorization. For some, this last-mentioned schema is now generally to be embedded in NATO's new "strategic concept". According to the UNA Background Paper, this development suggests a shift in the UN/NATO relationship from mutual reinforcement 39 to fundamental competition: Under such a scenario, the organization in danger of sliding into irrelevance seems to be not NATO but the United Nations. In a political variant of free-market competition, the U.N. Security Council risks disappearing as a serious security body as the genuinely powerful prefer to work through a more convenient instrument. All that the Security Council can offer is "legitimacy," in the view of some Western governments - and NATO may provide the desired multilateral cover, with less obstruction. Such a development would be deplorable. In the words of UN Secretary-General Kofi Annan: [P]eacekeeping is not, and must not become, an arena of rivalry between the United Nations and NATO. There is plenty of work for us both to do. We work best when we respect each other's competence and avoid getting in each other's way. 40 This article has attempted to demonstrate that, while the threat of armed force employed by NATO against the FRY in the Kosovo crisis since the fall of 1998 is illegal due to the lack of a Security Council authorization, the Alliance made every effort to get as close to legality as possible by, first, following the thrust of, and linking its efforts to, the Council resolutions which did exist, and, second, characterizing its action as an urgent measure to avert even greater humanitarian catastrophies in Kosovo, taken in a state of humanitarian necessity. The lesson which can be drawn from this is that unfortunately there do occur "hard cases" in which terrible dilemmas must be faced and imperative political and moral considerations may appear to leave no choice but to act outside the law. The more isolated these instances remain, the smaller will be their potential to erode the precepts of international law, in our case the UN Charter. As mentioned earlier, a potential boomerang effect of such breaches can never be excluded, but this danger can at least be reduced by indicating the concrete circumstances that led to a decision ad hoc being destined to remain singular. In this regard, NATO has done a rather convincing job. In the present author's view, only a thin red line separates NATO's action on Kosovo from international legality. But should the Alliance now set out to include breaches of the UN Charter as a regular part of its strategic programme for the future, this would have an immeasurably more destructive impact on the universal system of collective security embodied in the Charter. To resort to illegality as an explicit ultima ratio for reasons as convincing as those put forward in the Kosovo case is one thing. To turn such an exception into a general policy is quite another. If we agree that the NATO Treaty does have a hard legal core which even the most dynamic and innovative (re-)interpretation cannot erode, it is NATO's subordination to the principles of the United Nations Charter. To end on a lighter note: all of us leave the path of virtue from time to time. But one should not announce such a dangerous course as a general programme for the future, especially at one's 50th birthday. 38 United Nations Association of the U.S.A, Words to Deeds: Strengthening the U.N.'s Enforcement Capabilities (1997), at 45. 39 Cf. on this phrase supra text at note 33. 40 Address at Georgetown University on 23 February 1999; UN Doc. SG/SM/6901, PKO 80.
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