Emory International Law Review Volume 34 Issue 0 The North Atlantic Treaty Organization's Seventieth Anniversary 2019 The North Atlantic Alliance and Collective Defense at 70: Confession and Response Revisited Michael N. Schmitt Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr Recommended Citation Michael N. Schmitt, The North Atlantic Alliance and Collective Defense at 70: Confession and Response Revisited, 34 Emory Int'l L. Rev. 85 (2019). Available at: https://scholarlycommons.law.emory.edu/eilr/vol34/iss0/7 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. SCHMITTPROOFS2_10.24.19 10/28/2019 2:20 PM THE NORTH ATLANTIC ALLIANCE AND COLLECTIVE DEFENSE AT 70: CONFESSION AND RESPONSE REVISITED Michael N. Schmitt* On the birth of the North Atlantic Alliance seven decades ago,1 Georg Schwarzenberger, the great British legal scholar, observed: The North Atlantic Pact is a confession and a response. It is a confession of the constitutional inability of the United Nations to achieve its avowed main purpose of maintaining world order. It is a response to the insidious attempts of the Soviet Union to gain the fruits of another major war by all measures short of open war with the Western powers.2 Article 5 of the North Atlantic Treaty—also known as the Washington Treaty,3 which provides for the collective defense of the Alliance, was the practical response to that confession. Yet by the turn of the 21st century, the need for confession and response seemed to be fading away. The Soviet Union had collapsed, the Warsaw Pact was gone, democracy was on the rise throughout Eastern Europe and the former Soviet space, and the global security environment had become unipolar, with the United States exercising apparently benign * Professor of International Law, University of Exeter; Howard S. Levie Professor, U.S. Naval War College; Francis Lieber Distinguished Scholar, US Military Academy at West Point. The author is appreciative of the invaluable assistance of the Allied Command Transformation legal team, especially Mr. Lewis Bumgardner, and of the NATO Legal Adviser, Mr. Steven Hill. Views expressed are solely those of the author in his personal capacity. 1 See North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 224, 34 U.N.T.S. 243. The North Atlantic Treaty established a grouping of States known as the North Atlantic Alliance (or North Atlantic Pact). The title “North Atlantic Treaty Organization” was coined in the North Atlantic Council Final Communiqué of September 17, 1949. Final Communiqué, Sept. 17, 1949. NATO was established two years later with adoption of the NATO Status of Forces Agreement, and then the Paris Protocol and the Ottawa Agreement. See Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67; Protocol on the Status of International Military Headquarters set up Pursuant to the North Atlantic Treaty, Aug. 28, 1952, 5 U.S.T. 870, 200 U.N.T.S. 340; Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, Sept. 20, 1951, 5 U.S. T. 1087, 200 U.N.T.S 3. 2 Georg Schwarzenberger, The North Atlantic Pact, 2 WESTERN POLITICAL QUARTERLY 309, 309 (1949). On announcing the text of the proposed North Atlantic Treaty in March 1949, Secretary of State Dean Acheson noted with reference to the United Nations, “The system is not working as effectively as we hoped because one of its members has attempted to prevent it from working. By obstructive tactics and the misuse of the veto, the Soviet Union has seriously interfered with the work of the Security Council in maintaining international peace and security.” Dean Acheson, Broadcast on Atlantic Accord, Radio Address to the Nation (March 18, 1949), in N.Y. TIMES, March 19, 1949, http://movies2.nytimes.com/library/world/global/ 031949nato-acheson-text.html [hereinafter Acheson Address]. 3 North Atlantic Treaty, supra note 1, art. 5. SCHMITTPROOFS2_10.24.19 10/28/2019 2:20 PM 86 EMORY INTERNATIONAL LAW REVIEW [Vol. 34 supremacy.4 In light of these tectonic shifts, it appeared that the United Nations was on the verge of finally having assumed its intended collective security—as distinct from collective defense—role, as it had been in the process of doing for a number of years, most notably in the Balkans.5 In the eyes of many, there was no longer an existential threat against which the West was forced to organize in preparation for aggression. Although the Alliance continued to espouse its core mission of collective defense, the organization realized it had to transform.6 Some questioned the need for NATO at all.7 Predictions of an “end of history” and expectations of an impending “peace dividend” proved premature.8 New threats emerged on the security horizon, especially transnational terrorism. Indeed, the North Atlantic Treaty’s Article 5 collective defense provision would for the first time in its history be invoked not in response to an attack by Warsaw Pact forces, but rather one mounted by a transnational terrorist group operating from within Alliance territory and employing rudimentary weapons, such as box cutters.9 In the aftermath of the tragic events of September 11, 2001, NATO would play a central role in the 4 See generally, A Short History of NATO, NORTH ATLANTIC TREATY ORG., https://www.nato.int/cps/ en/natohq/declassified_139339.htm?selectedLocale=en. 5 “Collective defense” refers to the right of one or more States to come to the assistance of a State (or States) that is the object of an armed attack pursuant to Article 51 of the U.N. Charter and customary international law. See U.N. Charter art. 51. “Collective security,” in contrast, refers to a mechanism by which security in general is maintained. In the U.N. Charter context, the collective security arrangement is set forth in Chapter VII, which allows the Security Council to authorize or mandate action pursuant to Article 42, including the use of force, once the Security Council has identified a situation as a “threat to the peace, breach of the peace, or act of aggression” in accordance with Article 39. Id. at ch. VII, art. 39, 42 An armed attack would qualify as such, but Article 39 is not limited to its occurrence. Rather, the Security Council action may either be designed to “restore international peace and security” in the event of a breach of the peace or of aggression or maintain it in the face of a threat to the peace. Id. at arts. 39–42, 51. An organization may have both purposes, as is the case with the Organization of American States. Inter-American Treaty of Reciprocal Assistance (Rio Treaty), art. 5, Sept. 2, 1947, T.I.A.S. No. 1838, 21 U.N.T.S. 77 [hereinafter Rio Treaty]; Charter of the Organization of American States, arts. 28–29, Apr. 30, 1948, 2 U.S.T. 2394, 119 U.N.T.S. 3. 6 London Declaration on a Transformed North Atlantic Alliance, NATO: ON-LINE LIBRARY (Oct. 27, 2000), https://www.nato.int/docu/comm/49-95/c900706a.htm. 7 See, e.g., John Mearsheimer, Back to the Future: Instability in Europe after the Cold War, 15(1) INT’L SECURITY 5, 52 (1990); Statement of Kenneth N. Waltz, Conditions for Security in a Multipolar World in RELATIONS IN A MULTIPOLAR WORLD: HEARINGS BEFORE THE COMMITTEE ON FOREIGN RELATIONS, 101ST CONG., 2ND SESS. (1991). 8 FRANCIS FUKIYAMA, THE END OF HISTORY AND THE LAST MAN (1992); Ann Masrkusen, How We Lost the Peace Dividend, 33 AM. PROSPECT 86 (1997). 9 See A SHORT HISTORY OF NATO supra note 4. SCHMITTPROOFS2_10.24.19 10/28/2019 2:20 PM 2019] NORTH ATLANTIC ALLIANCE AT 70 87 effort to secure peace and maintain international security, even beyond the organization’s borders.10 Today, NATO is at another inflection point in its history. Still the preeminent military alliance in the world, it faces unprecedented external and internal threats. Externally, a revanchist Russia is in belligerent occupation of territory on NATO’s border in Ukraine, a country that has had a special relationship with the Alliance since 1991, when Ukraine joined the Atlantic Cooperation Council.11 In light of the ongoing international armed conflict between Russia and Ukraine, the Baltic nations that border Russia rightly worry that, given their size and significant ethnic Russian populations, they could be next.12 In light of the Russian veto on the Security Council, this menace cannot be left to the United Nations to handle. The threats to the Alliance’s members (“Allies”) today are not limited to classic attack by the armed forces of another State—or States. As noted by the NATO Heads of State and Government in their 2018 Brussels Summit Declaration, stability and security is also endangered by hostile cyber operations; “crises across the Middle East and Africa [that] are fueling terrorism” and “contribute to irregular migration and human trafficking;” the crisis in Syria which “has a direct effect on the stability of the region and the security of the Alliance as a whole;” “hybrid challenges, including disinformation campaigns and malicious cyber activities;” and “proliferation of weapons of mass destruction and advanced missile technology.”13 In 2016, at the Warsaw Summit, NATO leaders had also noted that the “trafficking of arms, drugs, and human being across the Sahel-Sahara region continue to threaten regional and our own security” and highlighted the continuing threat posed by piracy.14 Nevertheless, collective defense pursuant to Article 5 of the North Atlantic Treaty remains the foundational and motivational purpose of the Alliance.