Barry Eisler

Sunday, April 03, 2011

Libya: America Has No Choice?

This post is in response to a post by Juan Cole, a blogger and expert on the Arab and Muslim worlds from whom I've learned a great deal and who I greatly respect, arguing that America has a moral obligation to assist its NATO allies in the war against Libya.

Hi Juan, I'm no expert on NATO and the UN, but Article 5 of the NATO Charter seems entirely clear:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will 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.


So Article 5 applies only to attacks in Europe and North America, which would seem to exclude events in North Africa. And even if we read the phrase, "to restore and maintain the security of the North Atlantic area" as broadly as possible, it's hard to see how it could be stretched to an African country on the Mediterranean.

But I think your argument might find some support in Article 6, which provides:

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France (2), on the territory of or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;

on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.


Again, I know little about the NATO Charter and am unfamiliar with other attempts to interpret it, but on its face, Article 6 seems to provide that if NATO forces are attacked in the Mediterranean, the attack will be deemed to be an Article 5 attack. That said, as a former lawyer, I'm struck by the sloppy drafting of Article 6. As drafted, it seems to have the effect of dramatically expanding the geographical ambit of Article 5, making me wonder why, if such an expansion was the intent of the drafters, they didn't just forthrightly provide for the proper geographical scope of the treaty in one place. Another drafting anomaly in Article 6 is the repetition of the notion that an armed attack on Europe means an armed attack on Europe. Finally, we should mindful of what NATO stands for: North Atlantic Treaty Organization. Legal documents are often construed without regard to their titles and headings, but still, it's fair to wonder why the drafters would have called the organization and the treaty NATO if they intended the alliance to apply equally to the Mediterranean. NAMTO would have worked as an acronym, too.

These anomalies are why I hesitate to opine too strongly in the absence of familiarity with something equivalent to case law (I couldn't find any, BTW). My guess is that the drafters intended that limiting phrase, "in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force" to apply not just to Europe, but to the Mediterranean and other areas mentioned in Article 6, too. Regardless, on its face, Article 6 does seem to provide support for the notion that if NATO forces are attacked in the Mediterranean, the alliance will treat such attacks as an attack against all, in which case each NATO party is obligated to assist the parties that have been attacked.

All that said, you wrote, "So my question is, does that decision not lay a moral obligation on the US to lend support to the effort of its allies?" As you can see from my attempts to parse the NATO Charter, I think the better question is, "Does that decision create a legal obligation for the United States?" Because, after all, if the NATO Council decided to pick a fight outside the treaty's ambit and then tried to invoke the treaty as a way of forcing America to join in that fight, I would argue that no, America certainly has no moral obligation to join in the fight, and I would only be concerned with whether America would be legally obligated to join. As a matter of common sense, it seems dubious that NATO could launch a war not authorized by the treaty and then invoke the treaty to force a member to join that war, but still, the Charter says what it says and regardless of common sense the document of course needs to be addressed.

You ask: Had Washington demurred, "would not the allies have had a legitimate grounds for absolute fury?" I think this is the wrong question. America shouldn't be pressured into war by fear of third party emotions. If America has a legal obligation to join, America should honor that obligation. If no such obligation exists, the potential emotional reaction in foreign capitals ought to be a matter of diplomacy, but ought not to be a basis for America's participation in a war.

You mention that NATO invoked Article 5 following the September 11 attacks. But this was entirely proper, as the territory of a member state had been attacked. Libya has attacked no member state, and your argument would seem to imply that when NATO acts properly in situation x, member states are therefore obligated to act improperly in situation y. Such a tit for tat interpretation of the treaty makes no sense, either legally or common sensically. Moreover, the treaty makes no mention of public support for or opposition to responses by member states, so the foreign public opposition you mention to NATO's assistance to America in Afghanistan again seems relevant only to matters of diplomacy, not to whether an alliance member is legally or even morally obligated to assist another alliance member.

Similarly, your concern that an American demurral would mean the end of NATO is a matter of diplomacy only. Why would America want to be part of an organization that could force America into a war just by threatening the organization's dissolution if America failed to join in? If America really wanted to stay out and believed it had no legal obligation to join in, presumably it could head off such a crisis by early diplomatic intervention. If it couldn't, it might be worth discussing the value of an organization that no longer has a Soviet Union to deter and that seeks to force America to participate in actions outside the ambit of the treaty America has signed.

Granted, Resolution 1973 authorizes UN member states to attack Libya. But I don't see how it follows that America or any other NATO member is then legally obligated to participate in a war launched pursuant to the UN's resolution. Resolution 1973 authorized military action in Libya; it did not require it. Allowing a UN authorization to act as a legal trigger for a NATO requirement would greatly expand the potential applicability of the treaty. France's and Britain's actions in Libya make sense to you, but their next ones might not, and you might regret the creation of a principle that winds up obligating America to participate in every UN-authorized war that a NATO member decides to engage in. I know I would.

You close by asking again whether America has a moral obligation to assist its NATO allies in Libya. Again, I respond by saying respectfully that this is the wrong question. The right question is, Is America legally obligated to assist? Though the ambiguities in Article 6 leave room for argument, on balance I would say that no, America has no such legal obligation, and that in the absence of a legal obligation to act under a treaty, there is no moral basis to act under a treaty. If it were otherwise, we could dispense with treaties entirely and choose our wars case by case on a purely "moral" basis.

With sincere respect,
Barry Eisler
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5 Comments:

Blogger Jacqvern said...

I’m not going to argue about whether I agree or not with the intervention in Libya. That is another story.

However, I would like to point out some things.

1. When a treaty has a name of an area or a city is to designate the area or the city in which it was negotiated and signed, and NOT as a geographical description of the context.
For example, the Treaty of Versailles, which was the treaty signed after the WWI. It’s not about Versailles, it was signed there. Another example, the Treaty of Paris, in 1898 between US and Spain, it has nothing to do with Paris, it was signed there. And many other treaties.

2.The Treaty of Brussels precedes the North Atlantic Treaty. Treaty of Brussels was accommodated when US wanted to enter that treaty and the other countries wanted to have them.

3.Half of initial countries that signed the NAT were not in the Atlantic area; see Belgium, Denmark, Italy, Luxembourg, Netherlands and Norway. So, of course, there would have been a provision of a larger area than just the North Atlantic area. Moreover, Article 10 provides for invitations for any other European country, etc.

4.The NAT was signed, as stated in the description at the beginning “to reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments.”

Further more Article 1 states: “The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.”

Article 7 states: "This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.”

Thus, all this show a broader sense of the treaty and a compliance with the United Nation's charter.

5.When deciding the intervention in Afghanistan, NATO forces participated, on the grounds of an attack against an ally, which was the United States. Although it is debatable if an action of a terrorist hiding somewhere, (if it was actually that way, because the terrorists were never found), automatically renders an attack against that particular country, but it seems that it is the usual trend for actions all over the world. And there are other examples for similar interventions.

6.As I recall, the intervention in Libya was decided by the UN Security Council, in which US is a permanent member, and not by NATO.

And taking into consideration all of the above, the US has a legal obligation, especially since it voted for it! And not under the NAT, but under the UN Security Council decision.

I’m not saying that I agree with Juan Cole’s article, but I don’t agree with your arguments either. Especially the one regarding the name of the treaty.

And in any case, there is no point on arguing the North Atlantic Treaty, since it was a UN Security Council decision regarding Libya, and NATO complies as mentioned above with UN decisions and incorporates the UN charter. So NATO is legally obliged to comply.

Sorry for the long comment,
Respectfully,
Irene Vernardis :)

Sunday, April 03, 2011 12:50:00 PM  
Blogger Barry said...

Thanks, Irene. My point about what the treaty was named for was a minor one, and not crucial to my argument. Nonetheless, I think it stands. That some treaties are named for the place where they were signed, as you note, does not mean all of them were, and I don't see how a treaty could be meaningfully signed in, and memorialized as being signed in, the North Atlantic, unless on a boat.

Article 5's reference to the North Atlantic creates a limitation on NATO action by naming a specific purpose for which NATO action must be carried out ("to restore and maintain the security of the North Atlantic area"). I didn't argue that the treaty is inapplicable to member nations located outside Europe and the North Atlantic area; by virtue of Article 5, it plainly is.

Agreed, it might be debatable if a non-state attack on a member nation is sufficient to invoke the requirements of Article 5. But again, this isn't really relevant to my argument. My point was simply that on September 11, America was attacked. Regardless of whether one thinks such an attack was enough to trigger Article 5, the point is that in the current instance Libya attacked no member until members attacked Libya in the Mediterranean, and that therefore Juan's attempt to link Libya and 9/11 was inapposite.

As for the rest, indeed, the United Nations is mentioned six times in the NATO Charter, but all of these references are to general principles and none speaks of a requirement that NATO carry out an action the UN Security Council has authorized. So arguing that "NATO complies as mentioned above with UN decisions and incorporates the UN charter" means ipso facto that NATO must implement UN authorized action is an argument for which I've yet to see support.

Thanks again,
Barry

Sunday, April 03, 2011 1:31:00 PM  
OpenID daialanye said...

If you don't consider the Mediterranean part of Europe, you might at least concede that Lockerbie, Scotland is located there.

I dunno, maybe you did---I stopped reading shortly after the first para.

Sunday, April 03, 2011 1:33:00 PM  
Blogger Jacqvern said...

I’ll apologize for outstaying your blog's hospitality. But I like arguments (not those as defined in the "masturbation" definition on your welcome statement, valid arguments :D )

Quote: “My point about what....unless on a boat.” > Let’s agree we disagree on that.

Quote: “the point is....was inapposite.”
No, Libya did not attack any member, but the members attacked as a result of the UN Security council decision. I agree with your 2nd point.

Quote: “requirement that NATO carry out...to see support.” > In any case, the NATO members are members of UN. Thus, per the below articles, they are obliged to conform to any UN Security Council's decision.

Let’s take this in another way.
Article 25 of the UN charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. “
Article 42: ”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.”
Article 43: “1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.”

However, the UN Security Council’s decision was made NOT for an attack on NATO, but for the Libya uprising events. So, let’s leave NATO out of this, it has nothing to do with NATO.

Let’s see then
1.The US is a permanent member of the UN Security Council
2.US voted pro the intervention in Libya.
3.As per the articles above, all UN members are obliged to comply with the Security's Council decision.

So, there can not be any argument over the US legal obligation.

US is legally obliged > since US VOTED to make a military intervention in Libya (how can someone who votes for something, not be obliged to follow its own vote and decision? the vote is a signature),
> since US IS a permanent member of the UN Security Council, which took the decision,
> and since US IS a member of the UN in general.

Nothing to do with NATO, no point of mixing them up.

Thank you for your reply and hospitality,
Irene

Sunday, April 03, 2011 2:19:00 PM  
Blogger Barry said...

Daialanye, I admire your boldness. I myself am quite shy about responding to things I haven't read, and would be doubly shy about announcing that I've done so.

Perhaps your short attention span might explain your curious notion that NATO waited 23 years after the bombing over Lockerbie to invoke the treaty in response? I suppose it's possible that the UN had the same idea when passing Resolution 1973, and that NATO had the same idea when it decided to assume leadership of the war, and that both just forgot to mention it in their announcements. I admit I hadn't considered that.

As for the Mediterranean being part of Europe, I suppose you could make an argument about European territorial waters in the Mediterranean, but that argument would be pretty weak in light of (i) the treaty's own distinction between Europe and the Mediterranean; and (ii) the fact that NATO forces are engaging Libyan forces in Libyan, not European, territorial waters. You would also be ignoring my overall argument, which is that Libya attacked no allied forces at all until allied forces attacked Libya, and that therefore invocation of the treaty's collective defense provisions is inapposite.

If you don't mind my saying, I think you would do everyone a service, most of all yourself, if in the future you refrained from commenting and spent the time you thereby saved reading whatever it is you thought you were commenting on.

Irene, thanks for your insightful thoughts. You might be right. I can only observe that when a government wants to avoid a war, it always can, and when a government wants to launch a war, it can always do that, too. It's clear to me the Obama administration wanted this war; the rest is just a pretext.

Sunday, April 03, 2011 4:22:00 PM  

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