Briefing Paper: On the authority of NATO to enlarge its Mandate

Briefing Paper: On the authority of NATO to enlarge its Mandate

April 2001

NATO appears to be making a major shift in their mandate. Noting the conclusion of the Cold War, the Alliance is seeking to enlarge its original mandate but are doing so with neither Parliamentary discussion nor authorization.

Restraints on Force accepted under the UN Charter

As members of the United Nations, NATO’s members have agreed to the restraints on their actions set out in Article 2(4) of the UN Charter (the “Charter”):

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The Charter allows the use of force in only two instances:

1) under Article 51, in acts of individual or collective self-defence. The Article reads as follows:

“Nothing in the present Charter shall impair 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

2) under Chapter VII in the case where the Security Council determines “the existence of any threat to the peace, breach of the peace, or act of aggression”, it has the power to authorize the use of force to restore or maintain international peace and security.

Regional arrangements can be made under Chapter VIII for dealing with the maintenance of international peace and security but NATO is not such a regional organization constituted under Chapter VIII of the Charter. (See Bruno Simma, “NATO, the UN and the Use of Force: Legal Aspects”, 10 European Journal of International Law, 1-22.)

Article 103 requires that, in the event of a conflict between a member states’ obligations under the Charter and its obligations under any other international agreement, the Charter shall prevail.

What is NATO’s legal mandate?

Article 1 of NATO’s Charter authorises NATO to “settle any international dispute in which they may be involved by peaceful means....and to refrain in their international relations from the threat or use of force in any manner consistent with the UN Charter”. Article 2 defines various social and economic mechanisms to build stability and peace. Article 3 allows member states to “maintain and develop their individual and collective capacity to resist armed attack”.

Article 5 is the only paragraph that allows the use of force. In the event of an armed attack against any one or more of its members, the Alliance has the right to use force in self-defence. Article 5 reads as follows:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self‑defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security (1).

The term “armed attack” is defined in Article 6 which reads as follows:

Article 6: For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

1. on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France, (2) on the territory of Turkey or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;

1. on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

Thus NATO states may take collective military action in self defence only in the instance of an armed attack and only within a precise geographic region. NATO is obliged to cease any use of force in self defence once the Security Council has intervened to restore and maintain international peace and security.

NATO: ATTEMPTS to EVOLVE ITS MANDATE

Recent policy statements show that NATO is enlarging its mandate by developing the concept of “non-Article 5" operations which would involve the use of force. Such operations would be beyond the legal powers of the Alliance as set out in the North Atlantic Treaty.

The Alliance’s Strategic Concept, approved by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington DC on 23^rd and 24^th April 1999 includes references to “non-Article 5" activities in Articles 24, 29, 31, 41, 43, 47, 49, 53, 54 and 61 of their new Strategic Concept. For example:

24. Any armed attack on the territory of the Allies, from whatever direction, would be covered by Articles 5 and 6 of the Washington Treaty. However, Alliance security must also take account of the global context. Alliance security interests can be affected by other risks of a wider nature, including acts of terrorism, sabotage and organised crime, and by the disruption of the flow of vital resources. The uncontrolled movement of large numbers of people, particularly as a consequence of armed conflicts, can also pose problems for security and stability affecting the Alliance. Arrangements exist within the Alliance for consultation among the Allies under Article 4 of the Washington Treaty and, where appropriate, coordination of their efforts including their responses to risks of this kind.

29. Military capabilities effective under the full range of foreseeable circumstances are also the basis of the Alliance’s ability to contribute to conflict prevention and crisis management through non-Article 5 crisis response operations. These missions can be highly demanding and can place a premium on the same political and military qualities, such as cohesion, multinational training, and extensive prior planning, that would be essential in an Article 5 situation. Accordingly, while they may pose special requirements, they will be handled through a common set of Alliance structures and procedures.

Article 41 provides that in addition to deterring any potential aggression, NATO military forces must be capable of forward defence and “must also be prepared to contribute to conflict prevention and to conduct non-Article 5 crisis response operations.”

41. ...the combined military forces of the Alliance must be capable of deterring any potential aggression against it, of stopping an aggressor's advance as far forward as possible should an attack nevertheless occur, and of ensuring the political independence and territorial integrity of its member states. They must also be prepared to contribute to conflict prevention and to conduct non‑Article 5 crisis response operations. ...

Article 43 refers to the need for “arrangements ....which constitute a prerequisite for a coherent Alliance response to all possible contingencies..” Article 49 states:

49. In contribution to the management of crises through military operations, the Alliance’s forces will have to deal with a complex and diverse range of actors, risks, situations and demands, including humanitarian emergencies. Some non-Article 5 crisis response operations may be as demanding as some collective defence missions. Well-trained and well-equipped forces at adequate levels of readiness and in sufficient strength to meet the full range of contingencies as well as the appropriate support structures, planning tools and command and control capabilities are essential in providing efficient military contributions...

Under the North Atlantic Treaty, NATO may use military force only in self-defence. Under the UN Charter, the use of force to maintain or restore international peace and security must be authorised by the Security Council. This primary responsibility of the Security Council is reiterated in Article 7 of the North Atlantic Treaty. Contrary to this, NATO’s Strategic Concept develops the concept of “non-Article 5" operations for which military force is contemplated for response to:

a) "risks of a wider nature, including terrorism, sabotage and organised crime"

b) the "disruption of the flow of vital resources"

c) the "uncontrolled movement of large numbers of people"

d) humanitarian emergencies, and

e) other “complex and diverse... situations and demands”.

“Non-Article 5" operations involving the use of force which do not have the authorisation of the Security Council would be contrary to international law and ultra vires.

Unlike those authorised by the North Atlantic Treaty, “non-Article 5" operations are not limited to NATO territory but anticipate “out of area” operations.

RECOMMENDATIONS:

Contrary to the provisions of its constituting Treaty, NATO is attempting to expand its operations beyond its legal mandate. In so acting, NATO is treading on the jurisdiction of sovereign states and established international organizations and agencies.

1. We urge both the Senate and House of Commons Committees on Foreign Affairs to review the North Atlantic Treaty and to require NATO to act within its legal mandate. Under international law as set out in the Charter and the North Atlantic Treaty, NATO may only use force in self defence to respond to armed attacks on its member states within a defined territory.

2. It is our further recommendation that these areas of concern remain the responsibility of those agencies currently tasked with them:

• The “uncontrolled movement of large numbers of people” should continue to be managed by the UN High Commissioner for Refugees.

• Humanitarian aid is better delivered through International Non-Governmental Agencies such as the International Committee of the Red Cross, UNICEF, Medecins sans Frontier and Save the Children.

• Threats of the proliferation of weapons of mass destruction are the responsibility of the UN Security Council pursuant to the international treaties related thereto.

• Threats to security are more appropriately managed through agencies with staffs trained in diplomacy, negotiation and conflict resolution such as the UN and the OSCE. The latter agency, includes a far wider representation of states than NATO and should further develop their conflict resolution and preventive diplomacy capability.

3. We finally recommend that, in recognition of the end of the Cold War, that funding be steadily decreased for NATO military activities. It is our understanding that currently the OSCE receives $1.00 for every $8,000.00 received by NATO. It is our view that funding should be radically increased for early warning, conflict avoidance and preventive diplomacy work through qualified personnel within the UN and the OSCE.

Such steps will lead to a return to public respect for the law as a source of rules for the appropriate conduct of all legitimate international bodies.

Apppendix 1

The North Atlantic Treaty

Washington D.C. - 4 April 1949

Article 1: The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.

Article 2: The Parties will contribute toward the further development of peaceful and friendly international relations by strengthening their free institutions, by bringing about a better understanding of the principles upon which these institutions are founded, and by promoting conditions of stability and well‑being. They will seek to eliminate conflict in their international economic policies and will encourage economic collaboration between any or all of them.

Article 3: In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self‑help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.

Article 4: The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened

Article 5: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self‑defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Article 6: For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

• on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France, (2) on the territory of Turkey or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;

• on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

Article 7: This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.

Article 8: Each Party declares that none of the international engagements now in force between it and any other of the Parties or any third State is in conflict with the provisions of this Treaty, and undertakes not to enter into any international engagement in conflict with this Treaty.

Article 9: The Parties hereby establish a Council, on which each of them shall be represented, to consider matters concerning the implementation of this Treaty. The Council shall be so organised as to be able to meet promptly at any time. The Council shall set up such subsidiary bodies as may be necessary; in particular it shall establish immediately a defence committee which shall recommend measures for the implementation of Articles 3 and 5.

Article 10: The Parties may, by unanimous agreement, invite any other European State in a position to further the principles of this Treaty and to contribute to the security of the North Atlantic area to accede to this Treaty. Any State so invited may become a Party to the Treaty by depositing its instrument of accession with the Government of the United States of America. The Government of the United States of America will inform each of the Parties of the deposit of each such instrument of accession.

Article 11: This Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes. The instruments of ratification shall be deposited as soon as possible with the Government of the United States of America, which will notify all the other signatories of each deposit. The Treaty shall enter into force between the States which have ratified it as soon as the ratifications of the majority of the signatories, including the ratifications of Belgium, Canada, France, Luxembourg, the Netherlands, the United Kingdom and the United States, have been deposited and shall come into effect with respect to other States on the date of the deposit of their ratifications.

Article 12: After the Treaty has been in force for ten years, or at any time thereafter, the Parties shall, if any of them so requests, consult together for the purpose of reviewing the Treaty, having regard for the factors then affecting peace and security in the North Atlantic area, including the development of universal as well as regional arrangements under the Charter of the United Nations for the maintenance of international peace and security.

Article 13: After the Treaty has been in force for twenty years, any Party may cease to be a Party one year after its notice of denunciation has been given to the Government of the United States of America, which will inform the Governments of the other Parties of the deposit of each notice of denunciation.

Article 14: This Treaty, of which the English and French texts are equally authentic, shall be deposited in the archives of the Government of the United States of America. Duly certified copies will be transmitted by that Government to the Governments of other signatories.

Footnotes :

1.The definition of the territories to which Article 5 applies was revised by Article 2 of the Protocol to the North Atlantic Treaty on the accession of Greece and Turkey and by the Protocols signed on the accession of the Federal Republic of Germany and of Spain.

2.On January 16,1963, the North Atlantic Council heard a declaration by the French Representative who recalled that by the vote on self‑determination on July 1, 1962, the Algerian people had pronounced itself in favour of the independence of Algeria in co‑operation with France. In consequence, the President of the French Republic had on July 3, 1962, formally recognised the independence of Algeria. The result was that the "Algerian departments of France" no longer existed as such, and that at the same time the fact that they were mentioned in the North Atlantic Treaty had no longer any bearing.

Following this statement the Council noted that insofar as the former Algerian Departments of France were concerned, the relevant clauses of this Treaty had become inapplicable as from July 3, 1962.