Kosovo and NATO: Selected Issues of International Law

Order Code RL30152

CRS Report for Congress

Received through the CRS Web

Kosovo and NATO: Selected Issues of

International Law

April 28, 1999

David M. Ackerman

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT

NATO’s military intervention in Yugoslavia has raised several issues of international law.

Are there legal justifications for overriding the traditional principle of international law that

states are free to order their internal affairs as they see fit without outside interference? Do

its actions comport with the Charter of the United Nations? Is its engagement in an out-ofarea conflict that is not a response to an armed attack on one of its members permissible under

the North Atlantic Charter? This report examines those issues. It will be updated as events

warrant.

Kosovo and NATO: Selected Issues of International Law

Summary

The initiation of air attacks by NATO and its intervention in Yugoslavia have

posed a number of issues involving international law. First, questions have been

raised about whether NATO’s actions violate the principles of non-intervention and

the sovereignty of states over their internal affairs. Kosovo is not an independent

state but is a part of Yugoslavia; and the conflict between the Serbs and the KLA and

the maltreatment of ethnic Albanians, therefore, had previously been an internal matter

rather than an international one. But international law has traditionally afforded states

complete sovereignty over their internal affairs and has barred intervention into those

affairs by other states. Thus, one issue is whether there are other principles under

international law that justify overriding the traditional principles of non-intervention

and sovereignty.

Another issue concerns whether NATO’s initiative has been authorized by the

U.N. Security Council or must find legal justification elsewhere. The Security

Council has had the Kosovo situation under review for some time and addressed the

matter in several resolutions last year. But it has not authorized its members or any

regional organization to take military action. As a consequence, questions have been

raised about whether NATO’s intervention is consistent with the UN Charter.

A third issue concerns whether NATO’s actions fall within the authority

conferred by the North Atlantic Treaty. NATO was created primarily as a defensive

alliance to protect the territory of its members from armed attack. But in this instance

none of its members has been subjected to attack or the threat of attack. Moreover,

NATO is engaging in a mission outside the territory of any of its members. Thus,

questions have been raised about its authority under the North Atlantic Treaty to

engage in an out-of-area mission that is not a response to an attack on one of its

members.

This report examines these issues and concludes that the implications of NATO’s

intervention in Yugoslavia for international law depend to a great degree on

assumptions regarding the current state of international law. If, for instance, one

assumes that the principles of the sovereignty of states over their internal affairs and

non-intervention remain absolute pillars of international law, NATO’s actions are

clearly violative. Similarly, if one assumes that the U.N. Charter has made the use of

force by states unlawful except as authorized by the Security Council or in selfdefense against armed attack, NATO’s actions, again, appear violative, even though

they appear consistent with the North Atlantic Treaty. But absent these assumptions,

a number of different conclusions emerge. NATO’s actions, for instance, may find

legal justification in the emerging doctrine of humanitarian intervention as well as in

the customary international law of self-defense. Both of these issues remain subjects

for debate in international law. NATO’s actions, thus, both reflect and promote

particular aspects of this ongoing debate about humanitarian intervention and selfdefense.

This report will be revised and updated as events warrant.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

(1) Principle of Non-intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

(2) United Nations Charter and NATO’s Intervention . . . . . . . . . . . . 1

(3) North Atlantic Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Principle of Non-Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The United Nations and NATO’s Air Strikes . . . . . . . . . . . . . . . . . . . . . . . 6

NATO’s Legal Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kosovo and NATO: Selected Issues of

International Law

Introduction

On March 24, 1999, the North Atlantic Treaty Organization (NATO) initiated

air strikes against the Federal Republic of Yugoslavia (Serbia-Montenegro) in an

attempt to convince the Yugoslav government to cease its ethnic cleansing in Kosovo

and to enter into a political settlement for that region. In response the Yugoslav

army, Serbian police forces, and paramilitary groups accelerated and expanded their

attacks on the Kosovo Liberation Army (KLA) and ethnic Albanian civilians in

Kosovo. Those actions precipitated a flood of Kosovar refugees pouring into

Macedonia, Albania, and Montenegro.

The initiation of air attacks by NATO and its involvement in armed conflict in

Yugoslavia has raised a number of issues involving international law, including the

following:

(1) Principle of Non-intervention. Kosovo is not an independent state but is

a part of Yugoslavia; and the conflict between the Serbs and the KLA and the

maltreatment of ethnic Albanians, therefore, had previously been an internal conflict

rather than an international one. As a consequence, some have questioned whether

military intervention by outside powers in that conflict violates the traditional principle

of international law barring intervention by one state or group of states in the internal

affairs of another state.

(2) United Nations Charter and NATO’s Intervention. The United Nations

Security Council has had the Kosovo situation under review for some time and has

addressed the matter in several resolutions. But it has not authorized its members or

any regional organization to take military action. Moreover, the U.N. Charter is

interpreted by some as prohibiting the use of force except in limited circumstances.

As a consequence, questions have been raised about whether NATO’s intervention

is consistent with the UN Charter.

(3) North Atlantic Treaty. NATO was created primarily as a defensive alliance

to protect the territory of its members from armed attack. But in this instance none

of its members has been subjected to attack or the threat of attack. Moreover, NATO

is engaging in a mission outside the territory of any of its members. Thus, questions

have been raised about its authority under the North Atlantic Treaty to engage in an

out-of-area mission that is not a response to an attack on one of its members.

CRS-2

To aid the House and the Senate in their examination of the various legal

components of U.S. involvement in NATO’s actions,1 this report explores these issues

of international law. It will be revised as events warrant.

Principle of Non-Intervention

International law has traditionally dealt with how states in the international arena

conduct themselves in their relationships with one another. Its development has been

premised on the notions that all states, whatever their size and relative power, are

equal and that each is sovereign within its own territory. As a consequence,

international law has made non-intervention in the internal affairs of other states a

central obligation. Only in recent decades has international law begun to address how

states conduct themselves in their internal affairs, i.e., how they treat their own

nationals.

The Charter of the United Nations itself recognizes this legal heritage. The

Charter states one of the UN’s purposes to be

[t]o develop friendly relations among Nations based on respect for the principle of

equal rights and self-determination of peoples ...2

and asserts that

[n]othing contained in the present Charter shall authorize the United Nations to

intervene in matters which are essentially within the domestic jurisdiction of any

State ....3

Moreover, the U.N. Charter commits its members to

settle their international disputes by peaceful means in such a manner that

international peace and security, and justice, are not endangered4

and provides that

[a]ll Members shall refrain in their international relations from the threat or use of

force against the territorial integrity or political independence of any State ....5

In the Declaration on Principles of International Law Concerning Friendly Relations

and Cooperation Among States in Accordance with the Charter of the United

1

As of this date, the Committee on International Relations of the House of Representatives has

reported both H.J.Res. 44 and H.Con.Res. 82 with a recommendation that they be rejected by

the House. Senator McCain has introduced S.J.Res. 20 in the Senate.

2

U.N. Charter, Art. 1(2).

3

Id. Art. 2(7).

4

Id. Art. 1(2).

5

Id. Art. 2(4).

CRS-3

Nations, 6 the General Assembly in 1970 adopted by consensus the following

elaboration of these principles of the Charter:

All States enjoy sovereign equality ... (which) includes the following elements:

(a) ...;

(b) ...;

(c) ...;

(d) The territorial integrity and political independence of each State are inviolable;

(e) Each State has the right freely to choose and develop its political, social,

economic and cultural systems.

....

No State or group of States has the right to intervene, directly or indirectly, for any

reason whatsoever, in the internal or external affairs of any other State.

Consequently, armed intervention and all other forms of interference or attempted

threats against the personality of the State or against its political, economic and

cultural elements, are in violation of international law.

....

Every State has an inalienable right to choose its political, economic, social and

cultural systems, without interference in any form by another State.

International law, it is clear, has traditionally deemed each state to have the sovereign

right to order its internal affairs as it sees fit, free from outside interference.

Viewed through this prism, NATO’s actions seem clearly violative of customary

international law and of the U.N. Charter. However, three developments in the past

half-century arguably allow this principle of non-intervention to be overridden in some

circumstances. First, the U.N. Charter itself states that the principle of nonintervention in the internal affairs of states “shall not prejudice the application of

enforcement measures under Chapter VII.”7 That Chapter authorizes the Security

Council to “determine the existence of any threat to the peace, breach of the peace,

or act of aggression” and to make recommendations and other actions to maintain or

restore international peace and security.” Similarly, the General Assembly resolution

noted above expanding on the meaning of the Charter with respect to friendly

relations among states explicitly states that “[n]othing in the foregoing paragraphs

shall be construed as affecting the relevant provisions of the Charter relating to the

maintenance of international peace and security.” Thus, international law as reflected

in the Charter appears to permit intervention in the internal affairs of states under the

auspices of the UN to the extent that the Security Council determines that those

affairs threaten international peace and security. That, however, has not happened in

the current situation (see next section).

Secondly, the U.N. Charter also recognizes in Article 51 the “inherent right of

individual or collective self-defense if an armed attack occurs against a Member of the

United Nations, until the Security Council has taken measures necessary to maintain

6

G.A. Res. 2625 (XXIV) (1970).

7

U.N. Charter, Art. 2(7). Chapter VII authorizes the Security Council to “determine the

existence of any threat to the peace, breach of the peace, or act of aggression” and to take

measures “to maintain or restore international peace and security.”

CRS-4

international peace and security.”8 Thus, the Charter clearly allows a state or group

of states to intervene in the internal affairs of another state if necessary to defend

themselves from an armed attack by that state. Again, that has not happened in the

current situation; at least in Kosovo, Yugoslavia has attacked only its own nationals,

not another state. However, it should be noted that there is an ongoing debate

concerning whether the limitation of self-defense in Article 51 to responses to armed

attack comprises the whole of what international law now allows. Historically, the

right of self-defense embodied in customary international law was not limited to a

state’s response to an armed attack but covered various other forms of self-help

involving the use of force but falling short of war — retorsion,9 reprisals,10

embargoes, boycotts, temporary occupations of foreign territory, pacific blockades,

etc. Moreover, notwithstanding the prohibition on the use of force in Article 2(4) of

the UN Charter, numerous states have continued to use these forms of self-help,

including military force, since the adoption of the U.N. Charter. Thus, some contend

that Article 51's reference to the “inherent right of ... self-defense” and the continued

use of forcible forms of self-help by states shows that the U.N. Charter preserves and

allows all the forms of self-defense that had previously been sanctioned by customary

international law. Others contend that the Article 51 limitation supersedes what had

been customary international law in these matters, that the limitation is now binding

on states, and that the continued use of force by states apart from armed attacks is in

violation of the Charter.11 Thus, the use of self-defense as a justification for

overriding the principles of sovereignty and non-intervention seems most tenable

under international law when it is a response to an armed attack, as permitted by

Article 51 of the U.N. Charter. But its legitimacy may also be argued, although with

less certainty, in situations not involving a response to an armed attack, such as that

in Yugoslavia. The argument that NATO’s actions in Yugoslavia constitute a form

of anticipatory collective self-defense has been used with respect to NATO’s actions

in Yugoslavia.12

8

Id. Chapter VII, Art. 51.

9

Retorsion is the commission of an unfriendly but legal act in response to a prior, equally

unfriendly legal or illegal act by another state. Frequently, it takes the form of tit for tat.

State A will impose travel restrictions on the diplomats of state B; state B will respond in kind

with respect to the diplomats of state A. State A will deny visas to certain officials of state

B; state B will respond in kind. But it doesn’t have to be a response in kind. When Iran

seized the U.S. embassy and most of its staff in 1979, for instance, the U.S. responded not by

seizing Iranian diplomats but by such measures as freezing Iranian assets in the U.S.,

invalidating all visas issued to Iranians, and embargoing exports to Iran. See, generally, von

Glahn, Gerhard, Law Among Nations (1992), pp. 633-640.

10

Reprisals are illegal acts undertaken in response to another state’s illegal acts — military

incursions into the territory of the offending state, bombardment of its territory, and

nonperformance of treaty obligations, for example. See von Glahn, supra n. 6, pp. 640-644.

11

See von Glahn, supra, p. 646, and Simma, Bruno, The Charter of the United Nations: A

Commentary (1994), pp. 661-678.

12

See, e.g., Hearing Before the Committee on International Relations of the House of

Representatives: United States Policy on Kosovo (April 21, 1999) (statement of Secretary

of State Madeleine K. Albright).

CRS-5

A final legal justification for overriding the principle of non-intervention emerges

from the modern development of the international law of human rights. On the basis

of the tenets of human rights recognized by the tribunals at Nuremberg and Tokyo

after World War II and more recently in the charters of the tribunals for the former

Yugoslavia and Rwanda; the provisions of the U.N. Charter obligating its members

to promote and encourage respect for human rights13; the formulation and adoption

by the U.N. General Assembly of the Universal Declaration of Human Rights in

194814; and the widespread adoption of numerous treaties and conventions concerning

human rights such as the Geneva Conventions,15 the International Covenant on Civil

and Political Rights,16 the Genocide Convention,17 the Convention on the Elimination

of Racial Discrimination,18 and the Torture Convention,19 it is contended by some that

states are no longer free under international law to mistreat their own nationals but

are obligated to respect their fundamental human rights. A corollary of this

development is that it may now be lawful for another state or states or the

international community to intervene in the internal affairs of a given state in order to

rectify serious violations of human rights, i.e., to intervene for essentially humanitarian

reasons in order to protect the nationals of that state from depredations by their own

government. As defined by one author, humanitarian intervention means

the threat or use of force by a state, group of states, or international organization

primarily for the purpose of protecting the nationals of the target state from

widespread deprivations of internationally recognized human rights, whether or not

the intervention is authorized by the target state or the international community.20

This doctrine is not yet fully developed in international law. But humanitarian

considerations have been repeatedly invoked to justify NATO’s actions in

Yugoslavia21; and the doctrine of humanitarian intervention may, at least in some

form, provide a possible justification under international law for NATO’s intervention

in Kosovo and Yugoslavia.

13

U.N. Charter, Articles 1(3), 13(1)(b), and 55(c).

14

U.N. Document A/811 (1948).

15

6 UST 3114, 3217, 3316, and 3516 (1956).

16

TIAS ___ (1992).

17

TIAS ___ (1989).

18

TIAS ___ (1994).

19

TIAS ___ (1994).

20

Murphy, Sean D., Humanitarian Intervention: The United Nations in an Evolving World

Order (1996), at 3-4.

21

See, e.g., Hearing Before the Committee on International Relations, supra n. 9 (statement

of the Secretary of State); White House Office of the Press Secretary, Text of a Letter from

the President to the Speaker of the House of Representatives and the President Pro Tempore

of the Senate (March 26, 1999); and NATO Press Release, Statement by the North Atlantic

Council on Kosovo (Jan. 30, 1999).

CRS-6

The United Nations and NATO’s Air Strikes

As noted above, the UN Charter appears to authorize intervention in the internal

affairs of states in certain circumstances, notwithstanding the traditional pillars of

international law of state sovereignty and non-intervention. Under Chapter VI of the

Charter, the Security Council may

investigate any dispute, or any situation which might lead to international friction

or give rise to a dispute, in order to determine whether the continuance of the

dispute or situation is likely to endanger the maintenance of international peace and

security.

In such situations the Security Council may also make recommendations for resolving

the dispute or situation. Chapter VII of the UN Charter, in turn, authorizes the

Security Council to “determine the existence of any threat to the peace, breach of the

peace, or act of aggression” and not only to make recommendations but also to take

action “to maintain or restore international peace and security.” Such action can

include the use of armed force as well as economic and diplomatic measures. Neither

Chapter VI nor Chapter VII is explicitly limited to disputes between states.

In addition, Chapter VIII of the UN Charter specifically permits regional entities

to deal with “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.” Chapter VIII further provides that such entities may seek the “pacific

settlement of local disputes” and authorizes the Security Council to use “regional

arrangements or agencies for enforcement action under its authority,” where

appropriate. But it prohibits enforcement action by such regional entities “without the

authorization of the Security Council ....”

The legal issue is whether NATO’s military intervention in Yugoslavia is

consistent with these provisions or must seek justification under international law

elsewhere. Thus, it deserves notice that the Security Council has repeatedly taken

action with respect to Kosovo. After large-scale violence broke out in late February,

1998, the Security Council in Resolution 116022 took cognizance of developments

in Kosovo under Chapter VII of the Charter and undertook a number of actions to try

to bring about a peaceful resolution of the situation. Among other measures, the

Security Council imposed an arms embargo on Yugoslavia (including Kosovo), called

for negotiations between governmental authorities in Yugoslavia and the Kosovar

Albanian leadership, approved “a substantially greater degree of autonomy and

meaningful self-determination” for Kosovo, and endorsed the efforts of the Contact

Group23 and the Organization for Security and Cooperation in Europe (OSCE) to

22

S/Res/1160 (March 31, 1998).

23

The Contact Group is composed of France, Germany, Italy, Russia, Great Britain, and the

United States.

CRS-7

resolve the situation peacefully. Subsequently, in Resolution 119924 the Security

Council in September, 1998, took note of the escalating conflict in Kosovo and the

increasing numbers of refugees and displaced persons, specifically identified the

situation as constituting a threat to peace and security in the region, called for a ceasefire and renewed negotiations, and endorsed the efforts of the European Community

Monitoring Mission and the Kosovo Diplomatic Observer Mission in Kosovo.

Finally, in October, 1998, the Security Council in Resolution 1203 endorsed the

agreements permitting the OSCE to monitor compliance on the ground in Kosovo

with its previous resolutions and NATO to do so from the air, reiterated that the

situation constituted a continuing threat to peace and security in the region, called on

Yugoslavia to honor its commitment to negotiate a political settlement of the conflict,

reaffirmed the right of refugees and displaced persons to return to their homes in

safety, and reiterated its previous endorsement of enhanced autonomy for Kosovo.

Although the Resolution made no mention of the threat of NATO air strikes, the

Council was undoubtedly aware that NATO on October 13 had threatened air strikes

if Yugoslavia continued to obstruct compliance with the UN’s resolutions and

negotiations toward a political settlement.

All of these resolutions, it is apparent, explicitly contemplated the active

involvement of regional organizations in Europe in trying to resolve the situation in

Kosovo. But none of the resolutions specifically authorized the use of force against

Yugoslavia either by Member States or by regional organizations such as NATO. The

absence of such authorization stands in contrast to past resolutions authorizing the use

of force by regional organizations in Bosnia-Herzegovina, where the authorization has

been explicit.25 Thus, although it might be argued that the objectives of NATO’s

actions are “consistent with the Principles and Purposes of the United Nations”

(Chapter VIII), it seems more difficult to conclude that NATO’s air strikes against

Yugoslavia meet the requirement of Article VIII that enforcement action by regional

agencies not be undertaken without the authorization of the Security Council.

Similarly, it seems doubtful that NATO’s air strikes fall within the Charter’s

provisions concerning self-defense. As noted above, Article 51 of the Charter

provides that

[n]othing 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.

24

S/Res/1199 (September 23, 1998).

25

See, e.g. S/Res/816 (1993) authorizing Member States “acting nationally or through regional

organizations” to use “all necessary measures” to enforce a no-fly zone over BosniaHerzegovina; S/Res/836 (1993) authorizing Member States “acting nationally or through

regional organizations” to take “all necessary measures through the use of air power” to

protect six safe haven areas for Bosnian Muslims; S/Res/ 1031 (1995) authorizing Member

States “acting through or in cooperation with” NATO to establish a multinational

implementation force to assist in the implementation of the Dayton Agreement; and

S/Res/1088 (1996) authorizing Member States “acting through or in cooperation with” NATO

to establish a smaller multinational stabilization force to enforce compliance with the Peace

Agreement.

CRS-8

Thus, if Yugoslavia had engaged in an armed attack on a member state of the U.N.

(which includes all of the member states of NATO) rather than on its own citizens in

Kosovo, NATO’s air strikes might find legal justification in Article 51. But in this

instance there has been no armed attack on a member of the United Nations as

required by Article 51. Instead, Yugoslavia’s use of armed force has been against its

own nationals.

Thus, NATO’s military initiative in Yugoslavia does not appear to find legal

refuge in the provisions of the UN Charter but must look elsewhere. As noted in the

foregoing section, at least two possibilities exist — (1) the doctrine of humanitarian

intervention, and (2) the customary law of self-defense. Humanitarian intervention

involves forcible intervention by other states to protect the nationals of a country from

large-scale depredations by their own government. That seems to be exactly what

NATO is doing, at least in part — protecting the Albanian Kosovars from ethnic

cleansing by the Belgrade government. But the doctrine of humanitarian intervention

is of relatively recent vintage in international law and several controversies still attend

its invocation. One key issue of contention relevant to the current situation is whether

humanitarian intervention is permissible outside the auspices of the U.N. Some

commentators argue that self-initiated humanitarian intervention by a state or group

of states cannot be reconciled with the restraints on the unilateral use of force

embodied in the U.N. Charter, while others contend that those restraints are

sufficiently flexible to allow unilateral interventions in some circumstances.26 Closely

related arguments are that recognition of a right of unilateral humanitarian

intervention under international law, uncontrolled by the Security Council, would

inevitably lead to abuse by unscrupulous states and that it is not possible to develop

criteria for such interventions that would obtain universal adherence.27 Thus, NATO’s

intervention in Yugoslavia may find legal support in international law in the emerging

doctrine of humanitarian intervention, but its actions appear both to reflect and to

promote a particular view of humanitarian intervention. Its actions affirm, first, that

intervention by a regional group of states in the internal affairs of another state is

permissible to remedy gross violations of human rights and, secondly, that such

intervention is lawful even absent Security Council authorization or, at least, when

the Security Council is unable to act.

Another possible legal contention is that the member states of NATO are

engaging in an exercise of collective self-defense permitted by international law. The

dangers posed to European peace and security by Yugoslavia’s actions in Kosovo

and, before then, in Slovenia, Croatia, and Bosnia-Herzegovina, have been frequently

cited in support of NATO’s actions. For instance, President Clinton stated as follows

in his March 26, 1999, letter to the Speaker of the House and the President pro tem

of the Senate:

The continued repression by the FRY military and security police forces

constitutes a threat to regional security, particularly to Albania and Macedonia

26

See the discussion in Murphy, supra, at 356-387, and Gordon, Ruth, “Humanitarian

Intervention by the United Nations: Iraq, Somalia, and Haiti,” 31 Texas International Law

Journal 43 (1996).

27

Id.

CRS-9

and, potentially, to Greece and to Turkey. Tens of thousands of others have been

displaced from their homes, and many of them have fled to the neighboring

countries of Bosnia, Albania, and Macedonia. These actions are the result of

policies pursued by President Milosevic, who started the wars in Bosnia and

Croatia, and moved against Slovenia in the last decade.28

Secretary of State Albright reiterated this justification in recent testimony before the

House Committee on International Relations:

Kosovo is a small part of a region with large historic importance and a vital role

to play in Europe’s future. The region is a crossroads where the Western and

Orthodox branches of Christianity and the Islamic world meet. It is where World

War I began, major battles of World War II were fought, and the worst fighting

since Hitler’s surrender occurred in this decade. Its stability directly affects the

security of our Greek and Turkish allies to the south, and our new allies Hungary,

Poland and the Czech Republic to the north. Kosovo itself is surrounded by small

and struggling democracies that are being overwhelmed by the flood of refugees

Milosevic’s ruthless policies are creating. Today, this region is the critical missing

piece in the puzzle of a Europe whole and free. That vision of a united and

democratic Europe is critical to our own security. And it cannot be fulfilled if this

part of the continent remains wracked by conflict.29

Again, however, NATO’s actions appear to reflect and promote a particular view of

what kind of collective self-defense remains lawful. Its actions suggest that Article

51 of the U.N. Charter is not to be read as limiting customary international law

regarding self-defense; that the unilateral use of force remains viable, at least when the

Security Council is unable to act; and that force may be used in anticipation of the

development of a serious threat to regional peace and security to forestall that

development.

NATO’s Legal Authority

A further question in the current situation concerns whether NATO’s

intervention in Yugoslavia is consistent with the North Atlantic Treaty.30 That Treaty

was adopted in 1949 essentially as a collective defense pact to protect against Soviet

aggression. Article 5 stated the Treaty’s essential obligation: An armed attack

against one member state was to be considered an armed attack against all of the

member states, and every state was to “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 11, in turn, provided that this and the

other provisions of the Treaty were to be carried out by the member states “in

accordance with their respective constitutional processes.”

28

Letter from President Clinton to the Speaker of the House and the President pro tempore of

the Senate (March 26, 1999).

29

Hearing Before the Committee on International Relations, supra n. 18 (statement of

Secretary of State Albright).

30

63 Stat. 2241 (1949).

CRS-10

The pact, thus, essentially protected the territories of the member states from

outside attack. In the current situation, of course, NATO’s initiative has not been

triggered by an outside attack on any of its member states and concerns an area

outside the territory of any of them. As a consequence, it seems clear that the

initiative cannot be said to fall under the rubric of Article 5.

NATO’s initiative in Yugoslavia may find legal justification, however, in Article

4 of the Treaty, as elaborated by NATO’s post-Cold War New Strategic Concept.

Article 4 provides as follows:

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.

Thus, Article 4 does not commit the member states of NATO to take any particular

action, but it does allow them to consult together with respect to perceived threats to

their security apart from an armed attack. Moreover, it does not limit such perceived

threats to those involving the territorial area of the member states, nor does it appear

to place any limits on the kind of responses the member states might make to such

perceived threats.

Secretary of State Dean Acheson articulated a broad scope for Article IV when

the North Atlantic Treaty was being debated in 1949. According to the official notes

of the State Department on a press conference held on March 18, 1949,31 Secretary

Acheson first stated that the scope of issues subject to discussion under Article IV is

“broader than what fell within the scope of ... Article V.” Then,

asked if there was no provision for anything except consultation, except armed

attack on one of the signatories, the Secretary replied that there were Article I

[settlement of disputes by peaceful means], II [promotion of democracy and

stability], III [development of defense resources to deter attack], and IV. Asked

if there were no limiting clause, the Secretary stated that there was no limiting

clause. A correspondent asked if the area of the Treaty was specified but was not

necessarily limited as to what the Parties might do after they might consult,

considering the fact that an attack to security might originate outside of the

geographical limits of the Treaty .... Asked if the Treaty stipulated that if armed

attack should originate outside of the area no action might be taken, the Secretary

replied in the negative.

In 1990 NATO developed and adopted a “New Strategic Concept” to guide its

operations in the post-Cold War era.32 That document noted that “[t]he security

challenges and risks which NATO faces are different in nature from what they were

in the past” and that NATO needed to adopt “a broad approach to security”:

31

U.S. State Department Document, Press Conference of Secretary of State Dean Acheson

(March 18, 1949). No verbatim transcript was made.

32

The New Strategic Concept was approved by the Heads of State and Government

participating in the meeting of the North Atlantic Council in Rome on November 7-8, 1990.

CRS-11

Risks to Allied security are less likely to result from calculated aggression against

the territory of the Allies, but rather from the adverse consequences of instabilities

that may arise from the serious economic, social and political difficulties, including

ethnic rivalries and territorial disputes, which are faced by many countries in

central and eastern Europe.

The document further noted that one of the “fundamental security tasks” performed

by NATO was

[t]o serve, as provided for in Article 4 of the North Atlantic Treaty, as a

transatlantic forum for Allied consultations on any issues that affect their vital

interests, including possible developments posing risks for members’ security, and

for appropriate co-ordination of their efforts in fields of common concern.

The document further claimed that this statement made no change in the rights and

obligations of the member states as originally provided in the North Atlantic Treaty.

This expansive understanding of NATO’s functions was reportedly reaffirmed in a

revision of the New Strategic Concept adopted by NATO’s member states at the 50th

anniversary celebration in Washington on April 24, 1999.33

Although the U.S. Senate did not explicitly address the issue of out-of-area

missions for NATO when it first gave its consent to the North Atlantic Treaty in

1949, it did do so in its recent resolution of advice and consent to the accession of

Poland, Hungary, and the Czech Republic to the Treaty. In a declaration attached to

the resolution of advice and consent it adopted on April 30, 1998, the Senate stated:

(i) in order for NATO to serve the security interests of the United States, the

core purpose of NATO must continue to be the collective defense of the territory

of all NATO members; and

(ii) NATO may also, pursuant to Article 4 of the North Atlantic Treaty, on

a case-by-case basis, engage in other missions when there is a consensus among

its members that there is a threat to the security and interests of NATO members.34

Conclusion

The implications of NATO’s intervention in Yugoslavia for international law

depend to a great degree on assumptions regarding the current state of international

law. If, for instance, one assumes that the principles of the sovereignty of states over

their internal affairs and non-intervention remain absolute pillars of international law,

NATO’s actions are clearly violative. Similarly, if one assumes that the U.N. Charter

has made the use of force by states unlawful except as authorized by the Security

Council or in self-defense against armed attack, NATO’s actions, again, appear

violative, notwithstanding that though those actions seem consistent with the North

Atlantic Treaty as elaborated by the New Strategic Concept.

33

See New York Times (April 25, 1999), p. 12).

34

144 CONG.REC. S4219 (daily ed. May 4, 1998) (text of resolution of ratification to the

Protocols to the North Atlantic Treaty of 1949 on the accession of Poland, Hungary, and the

Czech Republic).

CRS-12

But from a perspective that assumes NATO’s actions in Yugoslavia are intended

to accord with international law, several different conclusions regarding the

international legal implications of those actions may be drawn. Again, from this

perspective its actions appear to be consistent with the North Atlantic Treaty as

elaborated by the New Strategic Concept. But its intervention in Yugoslavia clearly

asserts the proposition that the principles of non-intervention and the sovereignty of

individual states over their internal affairs are not absolute principles of international

law but are now subject to limitation by the international community, at least in

certain circumstances. Its actions further suggest that lawful limitations on the

principles of non-intervention and the sovereignty of states can be derived from the

still-developing doctrine of humanitarian intervention and from the customary law of

self-defense. With respect to emerging doctrine of humanitarian intervention, its

actions reflect and promote the view that unilateral intervention for humanitarian

purposes is permissible apart from authorization by the Security Council, at least

where the Security Council is unable to act. With respect to self-defense, its actions

reflect and promote the view that Article 51 of the U.N. Charter does not prohibit the

unilateral use of force in situations other than defense against armed attack, that the

use of force by states for reasons of collective self-defense is lawful apart from

authorization by the Security Council, at least where the Security Council is unable

to act; and that the unilateral use of force by states is permissible under international

law as a matter of anticipatory self-defense to prevent the development of a serious

threat to regional peace and security, at least where the Security Council is unable to

act. From this perspective, in other words, NATO’s actions both reflect and shape

international law.