House of Commons - Defence

Select Committee on Defence Third Report

THE MANDATE QUESTION

47. NATO's movement from its traditional self defence role has opened up the question of its mandate for non-Article 5 operations. The overarching framework of international law for such operations remains the United Nations Charter—formulated in the very different world of 1946. While Article 5, self-defence operations would be legal under Article 51 of the UN Charter, the legal authority for other types of operation is more debatable. Article 39 of the UN Charter states—

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 41 deals with non-military sanctions. Article 42 states—

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea or land forces of Members of the United Nations.

Chapter VII of the Charter (in which the above Articles appear) is qualified to an extent by Chapter VIII, which deals with 'Regional Arrangements'. Paragraph 1 of Article 52 states—

Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

Paragraph 3 of that Article states—

The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.

And paragraph 1 of Article 53 states—

The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.

In its response to the Committee's SDR Report, the government comments—

The Government recognises that in certain circumstances regional security and cooperation bodies can play an important role in maintaining international peace and security. In other cases, it may be more appropriate for the UN to exercise these responsibilities directly. The Government attaches high priority to developing both UN and regional capabilities, but to attempt to produce a blue-print for the use of regional organisations by the UN would not be feasible given the unique nature of each situation and mandate. However, the UK is working very closely with other members of the UN to improve liaison with regional organisations.[96]

48. The Washington Treaty neither provides the specific authority for, nor expressly prohibits, non-Article 5 operations,[97] but its signatories have pledged—

... to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.[98]

A further complication has arisen from the 1975 Helsinki Final Act and the creation of a new regional security organisation, the Conference on Security and Cooperation in Europe. At Oslo in 1992, NATO also stated its readiness to act on behalf of the CSCE, now the Organisation for Security and Cooperation in Europe (OSCE), as a regional authority under the UN Charter.

49. The MoD notes the British government position which is that—

All NATO operations must have a basis in international law. The legal basis required in any particular case will depend on the particular circumstances. Article 51 of the UN Charter recognises the inherent right of self-defence, which includes the right to seek aid from elsewhere; friendly nations can give such aid individually and collectively. In other cases, a UN Security Council Resolution under Chapter VII of the UN Charter may be necessary to authorise the use of force.[99]

The Minister of State at the Foreign and Commonwealth Office reiterated that—

... it is inconceivable that NATO would operate outside international law,[100]

but that—

... we are not saying that every form of military action has to be underpinned by a direct Security Council mandate,[101]

although such a mandate, according to the Secretary of State for Defence, "would probably be the ideal".[102]

50. Some Allies, notably France and Germany, have seemed eager to see NATO commit to only acting out-of-area, or to non-Article 5 operations, with the express mandate of the UN or OSCE; however, strong elements within the US administration and Congress appear to resent any such restrictions on NATO's freedom to act.[103] While the French Foreign Affairs Minister insisted last December that all NATO missions calling for the use of force be placed under the authority of the UN, his US equivalent was stating that the Alliance must continue to have the right to take action on a case-by-case basis without UN Security Council authorisation.[104] The Foreign Secretary told the North Atlantic Council that—

I am not sure that it would be wise to limit ourselves by writing a legal base, rather than by making sure that as an organisation we have the flexibility to respond to problems in the real world.[105]

51. Since November of last year, NATO's threatened air strikes on the Federal Republic of Yugoslavia, which were eventually activated on 24th March, were not expressly mandated by the UN Security Council[106] because of the consistent opposition of the governments of the Russian Federation and China. However, we were told by the Minister of State at the Foreign and Commonwealth Office that—

... under international law we have absolutely no doubts that there would have been a justification ... for action designed to alleviate and resolve that humanitarian crisis.[107]

and the Secretary of State reiterated in his evidence to us on Kosovo on 24 March that—

... the objective here we are confident is inside international law[108]

While we have been told that the US would like to view this as a precedent for future NATO action, in practice other Allies are unlikely to accept this as a clear cut case. We concur.

52. The issue of the subordination of NATO non-Article 5 operations to the UN (or OSCE) remains hotly contested among the Allies, as the statements of US Secretary of Defence Cohen and of German Chancellor Schröder at the Wehrkunde conference in Munich showed.[109] However, as the Secretary of State stressed to us in his evidence on Kosovo,[110] NATO cannot act collectively, or its collective resources be used in any operation, without the express consent of all Allied nations. It seems likely that a reiteration in the new Strategic Concept of NATO's commitment to operate within international law (without a mention of the UN) will be acceptable to both sides of the argument. This may appear to be a fudge, but each non-Article 5 operation will continue to be decided by the Allies on a case-by-case basis in future.[111] While we agree that 'the widest involvement of the UN ... is clearly desirable',[112] in practice, accepting that NATO should not act except in self defence without a UN Security Council mandate would mean accepting a Russian veto on NATO action—this would not be tolerable. That NATO cannot act without the consent and agreement of all 19 of its members, each of which belongs to the UN and respects that organisation's philosophy, ought to ensure that any operation is legitimate under international law. As the Secretary of State for Defence told us—

As the Chairman of the Defence Council ... I have to have a legal base before I can order the bombers in or I am personally liable, ... a fairly onerous responsibility.[113]

After NATO had taken the decision to conduct air strikes against the Federal Republic of Yugoslavia's armed forces, he again reinforced this point—

... speaking as I do on behalf of the United Kingdom and as Chairman of the Defence Council, I have a particular personal responsibility in this regard which would turn into a legal one if it came to it.[114]

96 Sixth Special Report, Session 1997-98, op cit, para 27 Back

97 QQ 70, 71 Back

98 Article 1 (see Appendix 1) Back

99 Ev p 89 Back

100 Q 295 Back

101 Q 294 Back

102 Q 302 Back

103 Ev p 122 Back

104 The NATO Summit and its Implications for Europe, report by Tom Cox MP submitted to the Assembly of the WEU Back

105 Speech to the NAC, 8 December 1998 Back

106 Ev p 93 Back

107 Q 294 Back