October 27, 2011
Photo: Neil Chapman/RAF
Author’s preface: The killing of Colonel Qaddafi on 20 October 2011 is certain to expedite NATO’s withdrawal from Libya and facilitate plans for rebuilding the country. Yet, beyond legal wrangling, it will bode well for the future involvement of NATO in African conflicts if the alliance could commit as much resources, energy and dedication into the rebuilding of Libya as it did to pummelling the country. At the barest minimum, such a gesture may help in assuaging the concerns of those who have always suspected what the real motive of NATO intervention in Libya was.
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The involvement of regional organizations in enforcement of the No-Fly Zone (NFZ) in Libya, purportedly in support of United Nations Security Council Resolution 1973, raises interesting questions about the role of regional organizations in collective security in general, and their relationship with the Security Council in particular. Libya was not the first case in which the UN has invited regional organizations to assist in implementing a Security Council resolution or in which the body has collaborated, in whatever form, with regional organizations. Precedents include UN/Economic Community of West African States (ECOWAS) operations in Liberia and Sierra Leone, and UN/Organization of American States (OAS) actions in Haiti, to mention but a few.
Be that as it may, the on-going operation in Libya raises questions that deeply impact on the legal structures of the UN Charter and implicate policy-related questions for the UN, the concerned regional organizations and the structure of global collective security. While there can be no doubt that great benefits are to be derived from the interaction of the UN and regional organizations, the lack of clarity about the legal basis, an absence of policy precision, and trite rules of engagement considerably undermine such collaboration and, at the extreme, threaten to compromise the integrity of the operation concerned.
For this reason, it is important to discuss how NATO’s involvement in Libya, while undoubtedly legitimate, was legally dubious under UN Charter rules. This article will argue that the time is well nigh for the UN to develop clear policy guidelines for dealing with organizations that are not governed by Chapter VIII of the Charter but which are, nonetheless, committed to assisting the UN in realizing its primordial goal of maintaining international peace and security.
Chapter VIII of the UN Charter recognizes that regional “arrangements or agencies” have a marked role to play in the maintenance of international peace and security; hence, these organizations are empowered to conduct pacific settlement of disputes among their members (Article 52) entirely on their own and without recourse to the Security Council. However, while regional organizations are generally forbidden to take enforcement actions (including, of course, military measures), they can do so with the authorization of the Security Council (Article 53). This is one of the three bases recognized by the Charter as constituting exceptions to the general prohibition of force under Article 2(4) of the Charter. (The other two being the right of individual or collective self-defense (Article 51), which accrues only after an armed attack has occurred against a UN member, and the now futile actions against former enemy States (Article 107). The treaties of most regional organizations contain provisions enabling them to defend themselves once an attack occurs against their members.)
Whenever States decide to use force against another State, whether individually or as a group, the first question that arises is whether such an action is pursuant to the right of self-defence (Article 51 UN Charter) or is one authorized by the Security Council. In the case of Libya, with regard to the former, Article 51 does not apply, as Libya had not attacked any of the NATO member State. It therefore follows that only an authorization by the Security Council could provide a sound legal basis for any military action against Libya and keep NATO action from being in violation of Article 2(4). The question is: Was NATO action in Libya authorized?
The creation of a No-Fly Zone over the whole of Libya by Security Council Resolution 1973 on 11 March 2011 was done “in order to help protect civilians” (operative paragraph 6). The Security Council had called on “States that have notified the Secretary-General and the Secretary General of the League of Arab States, acting nationally or through regional organizations or arrangements to take all necessary means to enforce compliance with the ban on flights imposed by paragraph 6…” (operative para. 8). (Emphasis added).
The impetus for creating the NFZ had originally emanated not from the Council, but from the League of Arab States (LAS), which had, in the words of the Security Council itself, decided:
“to call for the imposition of a no-fly zone on Libyan military aviation and to establish safe areas in places exposed to shelling as a precautionary measure that allows the protection of the Libyan people and foreign nationals residing in the Libyan Arab Jamahiriya” (preambular paragraph 12, Res. 1973).
It was entirely legitimate, and legal, for LAS to call on the Security Council to establish a no-fly zone in Libya. LAS is a Chapter VIII organization and one which, aside from being able to invite the Security Council to take enforcement measures against its member States, could actually undertake enforcement action on its own — subject, of course, to the Security Council authorization. The Security Council, therefore, had no problem with making explicit references to the organization in the resolution, as it did with the African Union (AU), underscoring the cardinal importance of LAS in any eventual intervention in Libya.
However, it seems unlikely that the lack of reference to NATO, anywhere in Resolution 1973, was an accident of drafting. It was a rather clear indication that NATO was not intended as a beneficiary of a Resolution 1973 mandate. Differently put: NATO is not a Chapter VIII organization. The Alliance was established in 1949 as an Article 51 organization — that is, a mutual defence pact — and was so clearly described by its treaty. The critical (even if historical) rationale for NATO’s preference for being a collective self-defence organization was simply that it wanted to free its actions from Security Council prior authorization, to which Chapter VIII binds all regional organizations.
To legally respond to a Security Council’s resolution calling on States acting “nationally or through regional organizations or arrangements”, as resolution 1973 did, an organization must be such that it is contemplated as a “regional organization” by Chapter VIII of the UN Charter. While there are no clear criteria about what these are, two fundamental factors are crucial: First, such an organization must regard itself as a Chapter VIII organization (as, indeed, the OAS, AU, Organization for Security and Co-operation in Europe, and so on, have manifested severally). Second, and by far most important, such organizations must be ready to fulfil the obligation under Article 54 of the Charter: keeping the Security Council “fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security”.
This requirement is needed so that organizations intending to assist in the implementation of a Security Council resolution do not present the Security Council with a fait accompli. But much more important is that if an organization does not meet these criteria, but nonetheless responds to the Security Council’s clarion call for assistance through such particular resolutions as 1973, then, potentially, the organization’s involvement risks illegality.
The Security Council recognizes how important it is for all organizations that would be involved in the enforcement of the Libyan resolution to comply with Article 54. Hence, the Council insisted in Resolution 1973 that such organizations must “inform the [UN] Secretary-General and the Secretary General of the League of Arab States immediately of measures taken in exercise of the authority conferred by paragraph 8…”.
NATO has not traditionally complied with Article 54 of the UN Charter for the simple fact that it is not governed by Chapter VIII; hence, it does not need to comply with such a directive. It is also not implausible to contemplate NATO’s blatant disregard of the additional obligation, in paragraph 8, to inform the Secretary General of LAS — that is, aside from informing the UN Secretary-General.
Thus far, NATO could not have legally responded to the Security Council’s mandate issued to “regional organizations and arrangements” in Resolution 1973 because, by virtue of its own treaty, the alliance is neither such an organization, nor one that could be held bound by either Article 53 or Article 54 of the Charter (much less the obligation to report to LAS). And since NATO is acting in Libya collectively, in contradistinction from acting nationally (see para. 8, resolution 1973), the latter caveat in the mandate does not save NATO from being in violation. (That provision would have saved France, the UK or the US when they acted individually and nationally at the outbreak of the crisis before NATO took over the mission.)
Yet, the absence of a solid legal basis has not prevented NATO from responding to such Security Council resolutions as 1973. During the Bosnia/Herzegovina crisis in 1992, NATO had responded to Security Council Resolution 781. While paragraph 1 of that resolution stated that the objective of the flight ban on the country was to ensure safe passage for humanitarian assistance, paragraph 6 had called on States to take “nationally or through regional arrangements or agencies” all measures necessary to provide assistance to the United Nations protection force in that country.
Quite clearly, the above reveals a gap between the law — Chapter VIII provisions — and NATO’s increasing policy of responding to Security Council resolutions and the Security Council’s silent reception of NATO’s generosity. It would be disingenuous, to say the least, to argue that NATO should not assist in implementing Security Council resolutions just because the alliance is not one of the organizations that could adhere themselves to the enabling mandates with any legal exactitude.
This prompts the question of how the Security Council should superintend the activities of NATO in such moments, given that NATO cannot be expected to be governed by the rules in Chapter VIII. Put differently, there is a great need for a system to be established whereby, until NATO decides to accept the regulation of Chapter VIII (if that day is to come), its activities regarding implementing Security Council resolutions could be regulated by the Council. As things stand, NATO has developed the ability to step into the UN Charter (to assist the Security Council implementing its resolutions) and step out of it (to avoid the Security Council’s regulation of regional organizations engaged in implementing of such resolutions).
One way of dealing with this anomalous situation between NATO and the Security Council is for the UN to devise a means of regulating NATO’s involvement in implementing Security Council resolutions since, unlike typical regional organizations, NATO cannot be regulated by Chapter VIII of the UN Charter.
The Security Council set an interesting precedent in 1994 when it invited regional organizations to its High-Level meeting in New York. Although the original invitation letter was addressed to regional organizations per se, an amended version was sent out that included other organizations, which enabled non-Chapter VIII organizations such as NATO to attend. In light of this precedent, a few recommendations can be made.
The UN can develop a set of policy guidelines to enhance its collaboration in UN missions with such non-Chapter VIII organizations as NATO. Such policy guidelines would spell out, in clear terms, the conditions governing UN collaboration with such organizations, so that a situation of cherry-picking that characterizes the current UN/NATO interaction can be avoided.
The Security Council can easily prevent NATO’s “cherry-picking” approach to its relationship with the Council be using more specific drafting formulae in its resolutions. For instance, had paragraph 8 of Resolution 1973 read as follows —
Authorizes Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, or other international organizations or alliances to take all necessary measures to enforce compliance with the ban on flights imposed by paragraph 6 above… (new addition in italics)
— the added/suggested phrase (“or any other international organizations or alliances”) would have performed two important functions. First, it would have broadened the category of entities that could enforce the Libyan NFZ resolution beyond regional organizations, so that, in principle, an organization that is not usually concerned with collective security might be able to respond to the mandate if it so desires. Second, it would have meant that organizations such as NATO — which, although concerned with security issues, do not fall under Chapter VIII — could legally respond to such a resolution since they fall under “other international organizations or alliances”.
It is evident that the Security Council intended to strongly underscore the importance of LAS in the Libyan crisis. Also, not many people would have doubted, at least at the initial stages, the legitimating role that LAS’s approval of the Libya NFZ was believed to play. But that is as far as it goes.
A request that regional organizations enforcing the NFZ in Libya should report to the Secretary General of LAS is grossly unconstitutional under the UN Charter. Article 54 obligates regional organizations to report to the Security Council, not to Secretaries General of other organizations. LAS represents a section of the international community, not the entirety of the international community. And if it was thought that LAS consent was necessary before enforcing a UN resolution adopted under Chapter VII — a situation that, in itself, was comprehensively befuddling — it certainly cannot be the case that by the fact of being an Arab organization which has consented to an NFZ over an Arab natio,n LAS has suddenly become primus inter pares (the first among equals) among regional organizations. It will surely bode well for the practice of the Security Council, the sanity of international legal orders and the compressibility of the Charter rules if the Security Council would desist from such practices as the one under discussion.
The interaction between NATO and the UN in Libya highlights, once again, the need to sanctify relations between the UN and regional organizations. However, rather than approaching this problem generically, what needs to be done is to understand the specific dynamics of the issues involved in order to devise the most effective approach towards tackling them. In all probability, NATO will likely continue to respond to Security Council resolutions that call on regional organizations to assist in implementing such resolutions as Resolution 1973. It is highly unlikely that there will be an amendment of Chapter VIII of the UN Charter anytime soon, so that if NATO cannot go to the mountain, the mountain can go to NATO.
Filling the gap between the law and practice, therefore, may come down to a creative adaption of the Security Council process, especially as regards the crafting of such resolutions as 1973. The great thing about policy frameworks is that they are far more malleable — and, arguably, more congenial — than legal instruments. Howsoever the UN might want to address the relationship between the Security Council and NATO, what is of utmost necessity is to ensure that NATO does not end up ridiculing the legal framework of Chapter VIII.
The majority of regional organizations strive hard to continue to search for a stronger cohesiveness in the Charter order, and none should be permitted to cherry pick from the instrument. The era of “hop-in, hop-out of the Charter” should be ended.
If NATO greatly desires to take the benefit of the collective security system of Chapter VIII as its involvement in the Bosnia/Herzegovina and Libya crises demonstrate, then it must be ready to bear the burden of the adjunct legal obligations as well. After all, as the aphorism goes, the burden and benefit of a thing go together.