NATO, the UN and the Use of Force: Legal Aspects What others have to say ... Bruno Simma [*] Full text available: PDF format ** 1 The Threat or Use of Force in International Law 2 Kosovo: A Thin Red Line 3 NATO's Future "Strategic Concept": From "Out of Area" to "Out of Treaty"? 4 Concluding Remarks Comment - Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? Comment - Kai Ambos Abstract The threat or use of force by NATO without Security Council authorization has assumed importance because of the Kosovo crisis and the debate about a new strategic concept for the Alliance. The October 1998 threat of air strikes against the FRY breached the UN Charter, despite NATO's effort to rely on the doctrines of necessity and humanitarian intervention and to conform with, the sense and logic of relevant Council resolutions. But there are "hard cases" involving terrible dilemmas in which imperative political and moral considerations leave no choice but to act outside the law. The more isolated these instances remain, the less is their potential to erode the rules of international law. The potential boomerang effect of such breaches can never be excluded, but the danger can be reduced by spelling out the factors that make an ad hoc decision distinctive and minimize its precedential significance. In the case of Kosovo, only a thin red line separates NATO's action from international legality. But should such an approach become a regular part of its strategic programme for the future, it would undermine the universal system of collective security. 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 the Washington Treaty has 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 UN Charter. * Professor of International and Community European Law, Institut für Internationales Recht - Völkerrecht, Ludwig-Maximilians-Universität, Professor-Huber-Platz 2, D-80539 München, Germany; member of the Editorial Board. This article was originally presented at Policy Roundtables organized by the United Nations Association of the U.S.A. in New York and Washington, D.C., on 11 and 12 March 1999. Footnote references have been provided only where considered essential. ** The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems.
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