The role of NATO in the Peace Agreement for Bosnia and Herzegovina

II. The United Nations Charter and NATO Practice in the Area of Peace and Security

The first and most evident legal problem raised by Annex 1-A is that although Article 53 of the United Nations Charter provides that `[t]he Security Council shall, where appropriate, utilise such regional arrangements or agencies for enforcement action under its authority', and although Article I,1a of Annex 1-A invites the Security Council to do precisely that, NATO is not a regional organisation<sup>11</sup> designed to undertake peace-enforcement or peace-keeping operations, however consensual these may be. The North Atlantic Treaty of 1949<sup>12</sup> was firmly based on the provisions of Article 51 of the United Nations Charter, which recognises the `inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security'. On the face of it, the North Atlantic Treaty, therefore, comes into effect when the Security Council has not exercised its primary responsibility to maintain (or -more properly- to restore) international peace and security, and even then exclusively until the Security Council does so.

Regional organisations, on the other hand, do have the authority of `dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action'.<sup>13</sup> These measures may include consensual peace-keeping operations undertaken independently from the authority of the Security Council. In fact, States members of such regional organisations are required to `make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council'.¹⁴ It is an open question whether even peace-keeping operations by genuine regional organisations would be a legitimate measure for the maintenance of international peace and security when the State receiving peace-keeping forces is not a member of such organisation. Of course there is nothing to prevent States from doing jointly what they are allowed to do individually under international law. But in any case, the implementation of Annexes 1-A and 2 is not entirely a peace-keeping operation within the technical meaning of the term in international law. The Peace Agreement is perhaps the prime example of what the United Nations Secretary-General has labelled `multi-functional peacekeeping operations',¹⁵ which are based on the political commitment to peace at the highest level of authority of the parties to the dispute, but which may not have the full support of local authorities or forces, and therefore may need a more robust mandate to implement the undertakings of the parties.

In fact, although the Peace Agreement is based on the consent of the Parties, it may involve military enforcement of some provisions, including the use of necessary force to ensure compliance. Hence the need of a Security Council resolution authorising Member States to `take all necessary measures to effect the implementation of and to ensure compliance with Annex 1-A of the Peace Agreement'.<sup>16</sup> The Security Council, conscious -one would assume- of the inappropriateness of the reference to regional organisations in Annex 1-A, does not take up the suggestion implied in Annex 1-A of using Article 53 (Chapter VIII) of the United Nations Charter by authorising NATO to act as a regional organisation to implement Annex 1-A. Rather, the Security Council resolution 1031 generically refers to Chapter VII and authorises Member States `through or in co-operation with the organisation referred to in Annex 1-A of the Peace Agreement to establish a multinational implementation force'.¹⁷ The Security Council therefore recognises the role of NATO -even though it omits referring to it by name- as leader of IFOR, but stops short of granting it the attributes of a regional organisation. What does this leadership consist of, and how is it reconcilable with the North Atlantic Treaty?

As early as June 1992, at the Ministerial Meeting of the North Atlantic Council (`NAC') in Oslo, NATO announced its readiness to support peacekeeping activities under the responsibility of the NATO-sponsored Conference on Security and Co-operation in Europe (later renamed Organisation for Security and Co-operation in Europe).<sup>18</sup> This means that NATO, on a case by case basis, declared itself prepared to place at the OSCE's disposal standing forces from all States in the Alliance, together with their C<sup>3</sup>I capabilities for peace-keeping operations. The same offer of co-operation was reiterated in December 1992 to the United Nations Security Council and Secretary-General. NATO forces had, in fact, already been involved in peace-keeping and peace-enforcement missions in the former Yugoslavia since November 1992 with Operation `Sharp Guard' undertaken jointly with the Western European Union under unified command and control to implement Security Council resolution 713,¹⁹ which established an arms embargo against all the Republics of the former Yugoslavia and resolution 757,²⁰ which applied sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro). On 12 April 1993 NATO also undertook the enforcement of the so-called `No-Fly Zone' pursuant to Security Council resolution 816 of 31 March 1993. This was clearly an enforcement operation and it was the occasion for the first ever military engagement undertaken by the Alliance: on 28 February 1994 four warplanes violating the no-fly zone over Bosnia and Herzegovina were shot down by NATO aircraft. Finally, at the request of the United Nations military commanders, under United Nations Security Council resolution 836, initiated the operation code-named `Deliberate Force', which involved targeting Bosnian-Serb artillery surrounding Sarajevo and other United Nations-designated `Safe Areas' and to deter further attacks. These military operations were undertaken under the authority of the Security Council, which authorised member States `acting nationally or through regional organisations or arrangements ... to take all necessary measures'²¹ to enforce the respective resolutions. NATO member States that have responded to the Security Council resolutions have chosen to do so under the NATO chain of command, regarding the operations as NATO operations.

11 For the academic debate on the status of NATO in the UN Charter, cf. e.g. N.D.White, Keeping the Peace, The United Nations and the maintenance of international peace and security, (1993) 21 ff. ; E.W.Beckett, The North Atlantic Treaty, the Brussels Treaty and the Charter of the United Nations, (1950); Kelsen, `Is the North Atlantic Treaty a regional arrangement', 45 A.J.I.L. (1951), 187; Goodhart, `The North Atlantic Treaty of 1949', 88 Recueil des Cours (1951).

12 In particular its operative Article 5. cf. the North Atlantic Treaty, Washington DC, April 4, 1949, 34 UNTS 243, or URL: http://www.nato.int/docu/basictxt/Treaty.htm.

13 UN Charter, Article 52(1).

14 Ibid., Article 52(2), [my emphasis].

15 `Supplement to An Agenda for Peace', UN Doc. A/50/60 (1995).

16 Security Council resolution 1031, UN Doc. S/RES/1031 (1995), hereinafter SCR 1031, Operative Paragraph 15.

17 Ibid. Operative Paragraph 14.

18 Hereinafter CSCE and OSCE, respectively.

19 UN Doc S/RES/713 (1991) of 25 September 1991.

20 UN Doc S/RES/757 (1992) of 30 May 1992.

21 cf. e.g. Operative Paragraph 4 or RES 816 or Operative Paragraph 10 of RES 836

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