As the above discussion has made clear, differences among Allies on the circumstances under which NATO should threaten or use force, the extent to which its order should expand geographically, and the legal basis for NATO`s threat or use of force in any of these situations remain profound. At the same time, some of these differences are more obvious than real, often a matter of style rather than substance. And in any case, reasonable compromises can be developed that are consistent with most points of view. However, their acceptance by NATO allies depends on a willingness to abandon the very restrictive and ambitious views, at least for now, on NATO`s overall objective. If NATO`s sole purpose is to ensure the collective defence of its members, then many of the questions relating to the Alliance`s use of force will have been resolved, but only by rendering NATO virtually ill-suited to the most important security challenges of the time. While NATO`s objective is to defend challenges to a wide range of European and US interests globally, disagreements among Allies over the interests at stake, the threats to those interests and the nature of the appropriate response risk paralysing the Alliance and making inaction the rule rather than the exception. Since Russia`s illegal annexation of Crimea in 2014 and increasing security concerns from the south, including brutal attacks by ISIL and other terrorist groups on several continents, NATO has implemented the largest collective defence build-up since the Cold War. For example, it has tripled the size of NATO`s response force, deployed a spearhead of 5,000 troops and deployed multinational battlegroups to Estonia, Latvia, Lithuania and Poland. NATO has also reinforced its presence in the south-east of the Alliance, centred on a multinational brigade in Romania. The Alliance continued to develop air policing over the Baltic and Black Seas and to develop key military capabilities such as joint reconnaissance, surveillance and reconnaissance. At the Warsaw Summit in July 2016, Allies recognised cyber defence as a new operational domain for better protection of networks, missions and operations.
At the November 2019 Foreign Ministers` Meeting, Allies agreed to recognise space as a new area of operation to «enable NATO planners to request Allies to provide capabilities and services, such as hours of satellite communications». The president`s inherent powers as commander-in-chief would not allow the president to send the military into a conflict zone or use military force in response to an Article 5 invocation. The Constitution gives the president the power to defend U.S. territory and citizens, even without express authorization. But that does not allow the president to use force against an adversary that does not pose a direct threat to the United States, as would be the case in a military campaign in support of a NATO ally. The evolution of the U.S. response to Russia`s war against Ukraine — including the deployment of additional U.S. troops to Eastern Europe and possibly additional arms transfers — has raised questions about the legal framework for U.S. participation in NATO, the obligations that flow from it, and the implications for the president`s war powers. This article attempts to address some of these legal issues related to the division of war powers within the U.S.
government. In particular, the Charter of Paris could serve as a basis for establishing a solid legal basis for NATO`s action in situations not covered by Article 5, including the threat or use of military force, at least in cases of genocide and/or other serious human rights violations. Of course, this document, like the Charter of the United Nations and the Helsinki Final Act, reaffirms the principle of the non-use of force against the territorial integrity and political independence of a State. But by emphasising the primacy of human rights and affirming that `full respect for these principles is the foundation on which we want to build the new Europe`, the Charter provides a basis for military action in response to serious violations of human rights or the denial of fundamental freedoms, at least in Europe. Of course, determining whether such an extreme violation has occurred will always be the subject of different interpretations among allies. However, if a NATO of at least nineteen democratic states can agree that such a violation has taken place and that vigorous action is deemed necessary, then such action could be deemed legitimate. In short, an agreed legal basis for this would enable the Alliance to intervene in the event of threats or breaches of international peace and security, flagrant violations of the principles of human rights formulated in the Charter of the United Nations and the Helsinki Final Act and further elaborated in the Charter of Paris. it considers appropriate. 20. In March 2011, NATO Allies agreed to enforce an arms embargo against Libya as part of Operation Unified Protector using ships from Standing Maritime Group 1 Mine Countermeasures and Standing Mine Action Group 1,[62] as well as other NATO member ships and submarines.
[63] They would «monitor, report and, if necessary, intercept vessels suspected of carrying illegal weapons or mercenaries.» [62] Finally, NATO should, whenever possible, with the full support of the international community, threaten or use force, as expressed by the UN Security Council. He did it in Bosnia and received UN approval not only before the Dayton peace agreement was concluded, but also when he sent some 60,000 troops to help implement the agreement. The draft interim agreement for Kosovo calls on the United Nations to approve a NATO-led peacekeeping mission to support the implementation of such an agreement. At the same time, the Alliance must not be held hostage to the whims and fate of non-NATO countries, including potential Russian or Chinese veterans. As an alliance of democratic states acting on the basis of consensus, NATO must retain the ability to act without specific UN authorization. Even then, Allies should seek to act only on the basis of appropriate legal instruments, including the Charter of the United Nations and, for action in Europe, the Helsinki Final Act and the Charter of Paris for a New Europe. The latter, in particular, provides a solid and solid legal basis for the threat or use of force in cases where human rights or fundamental freedoms are violated. 2.
The North Atlantic Treaty allows states to calibrate their response to an armed attack. The relevant part of article V of the Treaty states: Keep in mind that treaties are made by the President with the consent of the Senate. If the invocation of a collective defense treaty automatically allowed the president to use force abroad, the House of Representatives would be completely prevented from deciding where, when and how the country will go to war. The Senate would play a secondary role to the president. Such a system would violate the text and design of the Constitution, which, according to a fundamental Supreme Court opinion, confers «all powers of war» on Congress.