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

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NATO, the UN and the Use of Force: Legal Aspects q EJIL 1999 ............................................................................................. NATO, the UN and the Use of Force: Legal Aspects Bruno Simma* 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 possible 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. 1 The Threat or Use of Force in International Law Contemporary international law establishes beyond any doubt that serious violations of human rights are matters of international concern. Impressive networks of rules and institutions, both at the universal and regional levels, have come into being as a result of this international concern. In the event of human rights violations which * Professor of International and European Community 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. 2 EJIL 10 (1999), 1–22 which reach the magnitude of the Kosovo crisis, these developments in international law allow states, acting individually, collectively or through international organiza- tions, to make use of a broad range of peaceful responses. According to the dominant doctrine in the law of state responsibility (developed by the United Nations International Law Commission), the obligation on states to respect and protect the basic rights of all human persons is the concern of all states, that is, they are owed erga omnes. Consequently, in the event of material breaches of such obligations, every other state may lawfully consider itself legally ‘injured’ and is thus entitled to resort to countermeasures (formerly referred to as reprisals) against the perpetrator. Under international law in force since 1945, confirmed in the General Assembly’s Declaration on ‘Friendly Relations’ of 1970,1 countermeasures must not involve the threat or use of armed force. In the case of Kosovo, pacific countermeasures were employed, for instance, by the European Union last year, with the suspension of landing rights of Yugoslav airlines within the EU. Leaving aside the question of whether this particular measure proved to be effective, it is somewhat surprising that a major Member State of the EU, at least initially, did not regard itself in a position legally to have recourse to this peaceful means of coercing the FRY to respect the human rights of the Kosovar Albanians. Yet this same state expressed no such doubts about the legality of its participation in the NATO threat of armed force which developed just a few weeks later. The world community, for its part, acting through the United Nations Security Council, resorted to a mandatory arms embargo vis-à-vis the FRY, including Kosovo.2 We do not have the necessary information at hand to be able to give a sound assessment of the impact and effectiveness of these non-military measures. In the face of genocide, the right of states, or collectivities of states, to counter breaches of human rights most likely becomes an obligation.3 In Kosovo, however, what the international community is facing (i.e., at the time of writing, early March 1999) are massive violations of human rights and rights of ethnic minorities, but not acts of genocide in the sense of the 1948 Convention.4 Turning to the issue of enforcement of respect for human rights by military means, the fundamental rule from which any inquiry must proceed is Article 2(4) of the UN Charter, according to which [a]ll Members [of the UN] 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. It is clear, on the basis of both a teleological and historical interpretation of Article 2(4), that the prohibition enacted therein was, and is, intended to be of a comprehensive nature. Thus, contrary to certain views expressed during the Cold 1 GA Res. 2625 (XXV) (1970). 2 Operative para. 8 of SC Res. 1160 (1998). 3 Cf. the judgment of the International Court of Justice in the Genocide (Bosnia-Herzegovina v. Yugoslavia) case (1996). 4 Convention on the Prevention and Punishment of the Crime of Genocide, 1948. NATO, the UN and the Use of Force: Legal Aspects 3 War years, the phrase ‘. or in any other manner inconsistent . .’ is not designed to allow room for any exceptions from the ban, but rather to make the prohibition watertight. In contemporary international law, as codified in the 1969 Vienna Convention on the Law of Treaties (Articles 53 and 64), the prohibition enunciated in Article 2(4) of the Charter is part of jus cogens, i.e., it is accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same peremptory character. Hence, universal jus cogens, like the prohibition embodied in Article 2(4), cannot be contracted out of at the regional level. Further, the Charter prohibition of the threat or use of armed force is binding on states both individually and as members of international organizations, such as NATO, as well as on those organizations themselves. Moreover, it is important to draw attention to Article 52 of the just-mentioned Vienna Convention, according to which ‘[a] treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’, paramount among these principles being Article 2(4). The law of the UN Charter provides two exceptions from the prohibition expressed in Article 2(4) (the mechanism of the so-called ‘enemy-state-clauses’ (Articles 53 and 107) should be left aside as it is now unanimously considered obsolete). The first exception, embodied in Article 51 of the Charter, is available to states which find themselves to be victims of aggression: 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. As the Charter reference to collective self-defence, Article 51 constitutes the legal foundation of the Washington Treaty by which NATO was established.5 Article 5 of the NATO Treaty bases itself expressly on Charter Article 51. According to the UN Charter, then, individual or collective self-defence through the use of armed force is only permissible in the case of an ‘armed attack’. Like Article 2(4), Article 51 has become the subject of certain gross (mis-)interpretations, most of them put forward during the Cold War when the Security Council regularly found itself in a state of paralysis. Against such attempts to turn a clearly defined exception to the comprehensive Charter ban on the threat or use of force into a convenient basis for all sorts of military activities, it should be emphasized once again that Article 51 unequivocally limits whatever farther-reaching right of self-defence might have existed in pre-Charter customary international law to the case of an ‘armed attack’. In 5 North Atlantic Treaty (1949), 34 UNTS 243. 4 EJIL 10 (1999), 1–22 particular, any offensive self-help by threats or use of armed force without a basis in Chapter VII has been outlawed by the jus cogens of the Charter. With regard to the second exception to the Charter ban on armed force, Chapter VII constitutes the very heart of the global system of collective security. According to its provisions, the Security Council, after having determined that a threat to the peace, breach of the peace, or act of aggression has occurred, may, if necessary, take military enforcement action involving the armed forces of the Member States.
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