NORTH ATLANTIC TREATY

Article 5
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-defense recognized 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.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the
Security Council. Such measures shall be terminated when the Security Council has taken the measures
necessary to restore and maintain international peace and security.

Article 6
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, on the territory of Turkey 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.

UN CHARTER

Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.
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4. All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.

Article 51
Nothing in the present Charter shall impair 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 international peace and security. Measures taken by Members in the
exercise of this right of self-defense shall be immediately reported to the Security Council and shall not
in any way affect the authority and responsibility of the Security Council under the present Charter to
take at any time such action as it deems necessary in order to maintain or restore international peace
and security.

NATO CRISIS MANAGEMENT (https://www.nato.int/cps/en/natolive/topics_49192.htm)

Engaging in non-Article 5 crisis response operations

As soon as the Soviet Union collapsed and satellite countries regained independence in the 1990s, past
tensions resurfaced and conflicts started among ethnic groups.

From the former Yugoslavia to today’s operations and missions

One of the first major conflicts following the end of the Cold War broke out in the former Yugoslavia in
1992. NATO initially provided air- and sea-based support to the United Nations (UN) – enforcing
economic sanctions, an arms embargo and a no-flight zone in Bosnia and Herzegovina – and with
detailed military contingency planning concerning safe areas and the implementation of a peace plan.

The measures proved inadequate to bring an end to the war. In the summer of 1995, after violations of
exclusion zones, the shelling of UN-designated safe areas and the taking of UN hostages, NATO member
countries agreed to take military action in support of UN efforts to bring an end to the war in Bosnia and
Herzegovina. NATO launched a two-week air campaign against Bosnian Serb forces and, over the
following months, a series of other military measures at the request of the UN force commanders. This
helped pave the way for the signing of the Dayton Peace Accord on 14 December 1995. The Alliance
immediately proceeded to deploy peacekeeping forces to the country, in accordance with the terms of a
UN mandate, giving NATO responsibility for the implementation of the military aspects of the peace
accord.

This was the first time that NATO became involved in a non-Article 5 crisis management operation.
Other non-Article 5 crisis management operations have followed - in Kosovo, in North Macedonia when
it was a NATO partner (previously known as the former Yugoslav Republic of Macedonia), Afghanistan,
the Mediterranean, off the Horn of Africa, over Libya and in support of the African Union.

Non-Article 5 crisis response operations

Crisis response operations cover all military operations conducted by NATO in a non-Article 5 situation.

A “crisis response” or “peace-support operation” are generic terms that may include conflict prevention,
peacekeeping, peacemaking, peace building, peace enforcement and humanitarian operations. These
are multi-functional operations conducted in support of a UN/OSCE mandate or at the invitation of a
sovereign government involving military forces and diplomatic and humanitarian agencies and are
designed to achieve long-term political settlement or other conditions specified in the mandate.
Conflict prevention: activities aimed at conflict prevention are normally conducted under Chapter VI of
the UN Charter. They range from diplomatic initiatives to preventive deployments of forces intended to
prevent disputes from escalating into armed conflicts or from spreading. Conflict prevention can also
include fact-finding missions, consultations, warnings, inspections and monitoring. NATO makes full use
of partnership, cooperation and dialogue and its links to other organizations to contribute to preventing
crises and, should they arise, defusing them at an early stage.
A preventive deployment within the framework of conflict prevention is the deployment of operational
forces possessing sufficient deterrent capabilities to prevent an outbreak of hostilities.

Peacekeeping: peacekeeping operations are generally undertaken under Chapter VI of the UN Charter
and are conducted with the consent of all Parties to a conflict to monitor and facilitate implementation
of a peace agreement.

Peacemaking: this covers diplomatic activities conducted after the commencement of a conflict aimed at
establishing a cease-fire or a rapid peaceful settlement. They can include the provision of good offices,
mediation, conciliation and such actions as diplomatic pressure, isolation or sanction.

Peace building: peace building covers actions which support political, economic, social, and military
measures and structures aiming to strengthen and solidify political settlements in order to redress the
causes of a conflict. This includes mechanisms to identify and support structures, which can play a role in
consolidating peace, advance a sense of confidence and well-being and supporting economic
reconstruction.

Peace enforcement: these operations are undertaken under Chapter VII of the UN Charter. They are
coercive in nature and are conducted when the consent of all Parties to a conflict has not been achieved
or might be uncertain. They are designed to maintain or re-establish peace or enforce the terms
specified in the mandate.

Humanitarian operations: these operations are conducted to alleviate human suffering. Humanitarian
operations may precede or accompany humanitarian activities provided by specialized civilian
organizations.

THE RIGHT OF SELF-DEFENSE (Malcolm Shaw)

In the Caroline Case, the US Secretary of State laid down the essentials of self-defense. There had to
exist ‘a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for
deliberation’. Not only were such conditions necessary before self-defense became legitimate, but the
action taken in pursuance of it must not be unreasonable or excessive, ‘since the act, justified by the
necessity of self-defense, must be limited by that necessity, and kept clearly within it’.
The International Court of Justice in the Nicaragua case, however, clearly established that the right of
self-defense existed as an inherent right under customary international law as well as under the UN
Charter.

The Court also discussed the notion of an ‘armed attack’ and noted that this included not only action by
regular armed forces across an international border, but additionally the sending by or on behalf of a
state of armed bands or groups which carry out acts of armed force of such gravity as to amount to an
actual armed attack conducted by regular armed forces or its substantial involvement therein. In this
situation, the focus would then shift to a consideration of the involvement of the state in question so as
to render it liable and to legitimate action in self-defense against it. (article 3(g) of the Definition of
Aggression)

In Oil Platforms case, in order to be able to resort to force in self-defense, a state has to be able to
demonstrate that it has been the victim of an armed attack and it bears the burden of proof. it is
necessary to show that the state seeking to resort to force in self-defense has itself been intentionally
attacked.

In the Oil Platforms case, it was noted that none of them appeared to have been aimed specifically and
deliberately at the US. In seeking to determine how serious an attack must be in order to validate a self-
defense response, the Court in the Nicaragua case distinguished ‘the most grave forms of the use of
force (those constituting an armed attack) from other less grave forms’ and this was reaffirmed in the Oil
Platforms case

The concepts of necessity and proportionality are at the heart of self-defense in international law.

The necessity criterion raises important evidential as well as substantive issues. It is essential to
demonstrate that, as a reasonable conclusion on the basis of facts reasonably known at the time, the
armed attack that has occurred or is reasonably believed to be imminent requires the response that is
proposed. In the Oil Platforms case, the Court held that it was not satisfied that the US attacks on the oil
platforms in question were necessary in order to respond to the attack on the Sea Isle City and the
mining of the USS Samuel B Roberts, noting in particular that there was no evidence that the US had
complained to Iran of the military activities of the platforms.

Proportionality as a criterion of self-defense may also require consideration of the type of weaponry to
be used, an investigation that necessitates an analysis of the principles of international humanitarian
law.

The nature of such weapons and the profound risks associated with them would be a relevant
consideration for states ‘believing they can exercise a nuclear response in self-defense in accordance
with the requirements of proportionality’
As to whether in formulating the level of response a series of activities may be taken into account.
Where such activities clearly form part of a sequence or chain of events, then the test of proportionality
will be so interpreted as to incorporate this.

Article 51 requires that states report ‘immediately’ to the Security Council on measures taken in the
exercise of their right to self-defense and that action so taken may continue ‘until the Security Council
has taken the measures necessary to maintain international peace and security’. Yoram Dinstein, in his
book War, Aggression and Self-Defense, argues that failure to report measures taken in the exercise of
the right of self-defense ‘should not be fatal, provided that the substantive conditions for the exercise of
this right
are met’.

In the ICJ Reports in 1986, also affirmed in the Oil Platforms case, the Court emphasized that ‘for one
state to use force against another, on the ground that that state has committed a wrongful act of force
against a third state, is regarded as lawful, by way of exception, only when the wrongful act provoking
the response was an armed attack’.

SELF-DEFENSE (Akehurst)

Caroline case
During the rebellion in Canada in 1837, preparations for subversive action against the
British authorities were made in United States territory. Although the Government of the United
States took measures against the organization of armed forces upon its soil, there was no time
to halt the activities of the steamer Caroline, which reinforced and supplied the rebels in Canada
from ports in the United States. A British force from Canada crossed the border to the United
States, seized the Caroline in the State of New York, set her on fire and cast the vessel adrift so
that it fell to its destruction over Niagara Falls. Two citizens of the United States were killed
during the attack on the steamer. American authorities arrested one of the British subjects
involved in the action and charged him with murder and arson. In the correspondence following
Great Britain’s protest, the conditions under which self-defense could be invoked to invade
foreign territory were formulated by Daniel Webster in a manner that became to be treated as
classic. There must be a ‘necessity of self-defense, instant, overwhelming, leaving no choice of
means, and no moment for deliberation’ and the action taken must not be ‘unreasonable or
excessive’, and it must be ‘limited by that necessity and kept clearly within it’. In many
subsequent occasions the Caroline case was invoked and also employed by the Nuremberg
Tribunal in handling the plea of self-defense raised to the charge of waging aggressive war.

Force used in self-defense must be necessary, immediate and proportional to the seriousness of the
armed attack.
The principle of immediacy requires that the act of self-defense must be taken immediately subsequent
to the armed attack. But the requirement of immediacy must take the individual circumstances into
account. Therefore, in the Falkland Islands conflict in 1982, although almost a month passed before
British forces were prepared to counterattack, in view of the geographical distance, Britain’s response
was immediate by ordering the Royal Navy to leave for the area of conflict.

URLs

North Atlantic Treaty - https://www.nato.int/cps/en/natolive/official_texts_17120.htm

NATO Crisis Management - https://www.nato.int/cps/en/natolive/topics_49192.htm
UN Charter - https://www.un.org/en/charter-united-nations/index.html