NATO, the UN and the use of force: legal aspects

Abstract

The threat or use of force by NATO without Security Council authorization has assumed importance because of the Kosovo crisis and the debate about a new strategic concept for the Alliance. The October 1998 threat of air strikes against the FRY breached the UN Charter, despite NATO's effort to rely on the doctrines of necessity and humanitarian intervention and to conform with the sense and logic of relevant Council resolutions. But there are 'hard cases' involving terrible dilemmas in which imperative political and moral considerations leave no choice but to act outside the law. The more isolated these instances remain, the less is their potential to erode the rules of international law. The possible boomerang effect of such breaches can never be excluded, but the danger can be reduced by spelling out the factors that make an ad hoc decision distinctive and minimize its precendential significance. In the case of Kosovo, only a thin red line separates NATO's action from international legality. But should such an approach become a regular part of this strategic programme for the future, it would undermine the universal system of collective security. To resort to illegality as an explicit ultima ratio for reasons as convincing as those put forward in the Kosovo case is one thing. To turn such an exception into a general policy is quite another. If the Washington Treaty has a hard legal core which even the most dynamic and innovative (re-)interpretation cannot erode, it is NATO's subordination to the principles of the UN Charter.