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Max Planck Encyclopedia of Public International Law [MPEPIL]

North Atlantic Treaty Organization

Thilo Marauhn

Subject(s):
North Atlantic Treaty Organization (NATO) — Military assistance — Armed forces — Collective security — Self-defence

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Origin and Historical Developments

The North Atlantic Treaty Organization (‘NATO’) is an international organization established on the basis of the North Atlantic Treaty. It was agreed upon in 1949 against the background of World War II and in light of the growing tensions between East and West, culminating in the Cold War (1947–91). Hopes that the wartime alliance against Nazi Germany would endure after 1945 did not materialize and the UN Charter proved incapable of accommodating inter-allied differences, which had arisen during the war.

The Treaty of Brussels of 17 March 1948 (Treaty for Collaboration in Economic, Social and Cultural Matters and for Collective Self-defence), agreed upon by Belgium, the Netherlands, Luxembourg, France, and the United Kingdom, served as an initial basis for the development of a military alliance of West European States to counter the military power of the Soviet Union (Western European Union [WEU]), with the creation of its military structure strongly influenced by the Soviet blockade of Berlin (Berlin [1945–91]). Participation of the United States was soon thought necessary in light of the Soviet Union’s consolidation of her wartime gains throughout Eastern Europe and in the eastern part of Germany, and its seemingly growing influence in France, Italy, Greece, and Turkey. This perceived threat met the new trend in US peacetime diplomacy, as reflected in the Truman doctrine, which declared the willingness of the US to help the free part of Europe to protect itself. The so-called Vandenberg Resolution of 11 June 1948 removed constitutional barriers to US participation in a peacetime military alliance with Western Europe (Alliances). Talks towards a new military alliance eventually led to the signing of the North Atlantic Treaty on 4 April 1949 by the five States Parties to the Treaty of Brussels, as well as the US, Canada, Portugal, Italy, Norway, Denmark, and Iceland.

The North Atlantic Treaty is embedded in the collective security system established by the UN Charter. In its preamble, States Parties reaffirm their belief in the purposes and principles of the UN Charter, while being determined to unite their efforts for collective self-defence. Under Art. 5 North Atlantic Treaty, an attack against one or more of the parties is to be considered an attack against all parties (Aggression). In the beginning, the Treaty was implemented in a purely political manner; however, in light of the Korean War (1950–53), the alliance soon developed an integrated military structure and concrete military plans. NATO began to sharpen its military profile in 1952 with the Lisbon Conference and, in September 1952, its first major maritime exercise. Art. 6 North Atlantic Treaty limits its area of operation—‘(f)or the purpose of Article 5’—to regions above the Tropic of Cancer, slightly extended with the accession of Greece and Turkey in 1952. West Berlin’s security was expressly guaranteed in Part V Art. 5 of the London Nine Power Conference’s Declaration of 3 October 1954 (Agreement on Restoration of German Sovereignty and German Association with Western Defence System: Final Act of the Nine-Power Conference 521: Bonn and Paris Agreements on Germany [1952 and 1954]).

A major step in the development of NATO was the incorporation of West Germany into the Alliance on 9 May 1955 (Protocol to the North Atlantic Treaty on the Accession of the Federal Republic of Germany [signed 23 October 1954, entered into force 5 May 1955] 243 UNTS 308). One of the main reasons for Germany’s accession to the North Atlantic Treaty was the Alliance’s need for German conventional manpower to resist a feared Soviet invasion. In order to counter concerns about West Germany’s re-armament, its entry into NATO was accompanied by its accession to a transformed WEU, which now entailed arms control obligations. Also, the West German government declared it would voluntarily abstain from producing nuclear, biological, and chemical weapons. In response to the incorporation of West Germany into NATO, the Warsaw Pact was agreed upon (Treaty of Friendship, Co-operation and Mutual Assistance [signed 14 May 1955, entered into force 6 June 1955] 219 UNTS 3 [Warsaw Pact]) by the Soviet Union, Hungary, Czechoslovakia, Poland, Bulgaria, Romania, Albania, and East Germany (Warsaw Treaty Organization), as a counterbalance to NATO and the WEU.

In 1966, France unilaterally announced, while remaining bound by the North Atlantic Treaty, its withdrawal from the integrated commands within NATO and requested the relocation of NATO’s headquarters and installations outside French territory. France preferred to justify this decision on political rather than legal grounds. In 1974, Greece similarly withdrew from the integrated military structure, but returned, in 1980, under a proposal sponsored by the then Supreme Allied Commander Europe (‘SACEUR’). France re-joined NATO’s Military Committee in 1995. Apart from intensifying working relations with the military structure, the French government fully revised its position and eventually, on 4 April 2009, returned to full membership, including participation in the integrated military command, but keeping its independent nuclear deterrent.

From 1985 onwards, the foreign policy of the Soviet Union underwent a major change, eventually leading to the end of the Cold War. The Brezhnev Doctrine was withdrawn and Soviet Allies were encouraged to adopt their own political systems. By the end of 1989 nearly all of Eastern and Central Europe had gone through a markedly peaceful revolution leading to the breakdown of the communist regimes. These developments brought about a fundamental change in the political and security environment of NATO. The change was characterized by events such as the adoption of the Treaty on the Final Settlement with Respect to Germany (‘Two-Plus-Four Agreement’), the Treaty on Conventional Armed Forces in Europe (‘CFE Treaty’) ([done 19 November 1990] [1991] 30 ILM 6; Conventional Armed Forces in Europe [CFE] Regime), the unilateral withdrawal of Soviet troops and heavy weaponry from the former Warsaw Pact countries, the Protocol on Terminating the Validity of the Treaty of Friendship, Co-operation and Mutual Assistance (the Warsaw Pact) ([signed 1 July 1991] UN Doc A/46/300, 5), and the rapid disintegration of the former Soviet Union itself which was completed in December 1991.

Germany remained a member of NATO after unification (Germany, Unification of), and armed forces of the Western Allies remained on German soil (Military Forces Abroad); however, it was agreed that foreign troops and nuclear weapons would not be stationed in the former East Germany. In effect, German unification was the first post-Cold War expansion of NATO. The Soviet withdrawal from Eastern and Central Europe led to what was called a ‘security vacuum’. In particular, Czechoslovakia, Poland, and Hungary, which in 1989–90 formed the so-called Visegrad Group, found themselves in a new strategic position between NATO and the former Soviet Union. Also, Baltic States moved towards a restoration of independence, which was finally recognized by the Soviet Union on 6 September 1991. The last Russian troops were withdrawn from the Baltic States in August 1994. Eventually, Estonia, Latvia, and Lithuania as well as Slovenia, Slovakia, Bulgaria, and Romania were invited to start talks of NATO membership during the 2002 Prague Summit, and joined the Alliance on 29 March 2004. Later NATO agreed to the accession of Croatia and Albania and invited them to join, both States acceding to the North Atlantic Treaty in April 2009.

This process of enlargement met with criticism from Russia even though NATO had already established formal contacts with Russia in 1991, within the framework of the North Atlantic Cooperation Council (later re-named Euro-Atlantic Partnership Council). In January 1994, NATO invited States participating in the North Atlantic Cooperation Council and other Member States of the Conference on Security and Cooperation in Europe (‘CSCE’; now Organization for Security and Co-operation in Europe [OSCE]) to join a programme called Partnership for Peace (‘PfP’). This programme goes beyond mere dialogue and cooperation. To subscribe to the PfP, States sign a Framework Document (Ministerial Meeting of the North Atlantic Council ‘Partnership for Peace: Framework Document’ [10–11 January 1994]), in which they recall that they are committed to the preservation of democratic societies and the maintenance of the principles of international law, referring also to the Helsinki Final Act (1975). Under the programme, NATO will consult with any active participant in the PfP if that partner perceives a direct threat to its territorial integrity, political independence, or security. The Framework Document envisages joint military exercises and other forms of military cooperation towards creating a capability of partner States to operate with NATO forces in such fields as peacekeeping, search and rescue, and humanitarian operations, and others as may be agreed. Russia joined the PfP programme on 22 June 1994, and on 27 May 1997, Russia and NATO signed a Founding Act on Mutual Relations, Cooperation and Security, in order to further develop cooperation. On 28 May 2002, the NATO-Russia Council was created. The NATO-Russia Council has contributed to cooperation between NATO and Russia concerning anti-terrorism, military cooperation (such as joint military exercises and personnel training), Afghanistan, industrial cooperation, cooperation on defence interoperability, non-proliferation, and other areas. Perceptions of the usefulness of the NATO-Russia Council vary.

In light of the dissolution of the Soviet Union and given the new situation of security in the era of post-confrontation, the OSCE ‘Agreement on Adaptation of the Treaty on Conventional Armed Forces in Europe’ (‘Revised CFE Treaty’) was signed on 19 November 1999. The Revised CFE Treaty adapts the original treaty to the new security environment but sticks with the original CFE Treaty targets.

10 In addition to the above developments following the end of the Cold War, NATO demonstrated an impressive flexibility to adapt itself to the emerging new strategic environment (Security Strategies). NATO’s first strategic concept, outlining its purpose and nature as well as its fundamental security tasks, specifying its approach to security, and providing guidelines for its military forces, had been adopted on 1 December 1949 (NATO ‘The Strategic Concept for the Defence of the North Atlantic Area’ Doc No DC 6/1 [1 December 1949]). Being followed by revisions as of 3 December 1952 in response to the Korean War (NATO ‘The Strategic Concept for the Defence of the North Atlantic Area’ Doc No MC 3/5 [3 December 1952]), and 23 May 1957 incorporating the doctrine of massive retaliation (NATO ‘Overall Strategic Concept for the Defence of the North Atlantic Treaty Organization Area’ Doc No MC 14/2 [23 May 1957] paras 2327), the fourth Strategic Concept was most characteristic for NATO’s approach to security until the end of the Cold War (NATO ‘Overall Strategic Concept for the Defence of the North Atlantic Treaty Organization Area’ Doc No MC 14/3). This concept had been drafted after the withdrawal of France from NATO’s integrated military structure in 1966 and it was adopted on 16 January 1968, nearly alongside the Harmel Report of 14 December 1967. MC 14/3 moved from massive retaliation to the doctrine of ‘flexible’ response (at para. 27). Characterized by defence and deterrence, the first four strategic concepts of the Alliance were based on the assumption that it was not possible to solve issues of political order between East and West; they relied nearly exclusively on the robustness of the military security system.

11 This changed dramatically in response to the end of the Cold War. On 8 November 1991, the North Atlantic Council adopted its first unclassified Strategic Concept (NATO ‘The Alliance’s Strategic Concept agreed by the Heads of State and Government participating in the Meeting of the North Atlantic Council’; ‘1991 Strategic Concept’), focusing on a much broader approach with cooperation and security complementing the traditional notions of defence and deterrence. While maintaining the security of its members as its fundamental purpose, the 1991 Strategic Concept sought to improve security for Europe as a whole in partnership with former adversaries; furthermore, it reduced the use of nuclear forces to a minimum level. Less than ten years later, on 24 April 1999, the Alliance, on the occasion of its 50th anniversary, adopted a new Strategic Concept (NATO ‘The Alliance’s Strategic Concept agreed by the Heads of State and Government participating in the Meeting of the North Atlantic Council’ [24 April 1999]) committing its members to common defence, and peace and stability of the wider Euro-Atlantic area. With its broad definition of security—including political, economic, social, and environmental factors in addition to defence—it reflects major changes in the Alliance’s self-perception. Post-Cold War risks such as terrorism, ethnic conflict, human rights abuses, political instability, economic fragility, and the spread of nuclear, biological, and chemical weapons, as well as their means of delivery are explicitly addressed. While calling for the continued development of its military capabilities in order to be able to provide peace support and crisis-response operations, it continues to rely on an appropriate mix of nuclear and conventional forces.

12 Following the terrorist attacks against the US of 11 September 2001, NATO leaders, on 29 November 2006, endorsed a major policy document entitled ‘Comprehensive Political Guidance’. It sets out the priorities for NATO’s capability issues, planning disciplines, and intelligence for the coming years. After the adoption of the ‘Declaration on Alliance Security’ on 4 April 2009 (NATO ‘Declaration on Alliance Security’ [4 April 2009]), NATO finally adopted its new strategic concept ‘Active Engagement, Modern Defence’ on 19 November 2010 (NATO ‘Active Engagement, Modern Defence: Strategic Concept for the Defence and Security of the North Atlantic Treaty Organisation’ [19 November 2010]). The new concept builds on the earlier post-Cold War concepts, re-confirming defence of members and cooperation with non-members. In addition it takes up modern challenges such as terrorism and cyber attacks (Cyber Warfare), and the members agreed to develop a mutual missile defence system.

13 In light of the major changes in the security environment after the end of the Cold War, NATO did not only adapt its strategic concept, but it moved from an exclusively defensive alliance towards assuming an increasingly proactive role at the international level. NATO’s first military operation aimed at ending violence in Bosnia and Herzegovina. Having shot down, on 28 February 1994, four Bosnian Serb aircraft violating a no-fly zone over central Bosnia and Herzegovina mandated by the UN Security Council, NATO, after the Srebrenica massacre, launched air strikes against the armed forces of the Republika Srpska, in August 1995. After the signing of the Dayton Peace Agreement (General Framework Agreement for Peace in Bosnia and Herzegovina), this was followed by the deployment of a peacekeeping force (Operation Joint Endeavour), an Implementation Force (‘IFOR’), and later a Stabilization Force (‘SFOR’) from 1996–2004 (Peacekeeping Forces). NATO’s military involvement in the Kosovo War began in March 1999, with NATO’s large-scale bombing campaign against what was then the Federal Republic of Yugoslavia, aimed at protecting Albanian civilians in Kosovo; air strikes came to an end on 11 June 1999, with the acceptance of Slobodan Miloševic of UNSC Res 1244. Subsequently, NATO then helped establish the Kosovo Force (‘KFOR’), operating under a UN Security Council mandate in Kosovo. Following the terrorist attacks of 11 September 2001, Art. 5 North Atlantic Treaty was invoked for the first time in its history (confirmed on 4 October 2001). NATO responded, among others, by Operation Active Endeavour—to be strictly distinguished from US, UK, and Afghan-led Operation Enduring Freedom—and on 16 April 2003, NATO agreed to take command of the International Security Assistance Force (‘ISAF’) in Afghanistan, established by the UN Security Council on 20 December 2001 by UNSC Res 1386 as envisaged by the so-called Bonn Agreement on Afghanistan (UNSC ‘Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions’ [5 December 2001] UN Doc S/2001/1154). In response to increasing piracy at the Horn of Africa, the Alliance, from October 2008 onwards, deployed warships in an operation to protect maritime traffic from Somali pirates. On the basis of UNSC Res 1973, calling for a ceasefire in the Libyan civil war and authorizing military action to protect civilians, NATO, on 20 March 2011, agreed to enforce an arms embargo against Libya. Four days later, NATO took control of the no-fly zone.

B. NATO’s Treaty Basis

1. The North Atlantic Treaty

14 The Alliance is based on the North Atlantic Treaty (also called the Washington Treaty). Adopted on 4 April 1949, the treaty entered into force on 24 August 1949, after all signatory States had deposited their instruments of ratification—even though Art. 11 only required ‘ratifications of the majority of the signatories’. The government of the US serves as a depositary (Arts 11, 14 North Atlantic Treaty). The preamble of the North Atlantic Treaty reaffirms the parties’ ‘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’. It underlines that the parties ‘are resolved to unite their efforts for collective defence and for the preservation of peace and security’. Reference to the UN Charter is also made in Art. 1 North Atlantic Treaty, whereby parties undertake to settle their disputes peacefully (Art. 2 (3) UN Charter) (Peaceful Settlement of International Disputes) 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’ (Art. 2 (4) UN Charter), contributing to ‘the further development of peaceful and friendly international relations’ (Art. 2 North Atlantic Treaty).

15 The core provision of the North Atlantic Treaty is Art. 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-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. 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.

16 The provision takes up the notion of collective self-defence but refrains from establishing any kind of automatism. Alliance members are free to choose how to respond to such an armed attack. The provision incorporates the procedural obligations arising from Art. 51 UN Charter. Art. 7 North Atlantic Treaty ensures primary responsibility of the UN Security Council ‘for the maintenance of international peace and security’.

17 In response to the attacks of 11 September 2001 on the United States, NATO members, for the first time in NATO’s history, invoked Art. 5 of the North Atlantic Treaty, less than 24 hours after the attacks. The North Atlantic Council agreed that the attack would be regarded as being covered by Art. 5 if it was determined that it had been directed against the United States from abroad. In light of such investigations, the Council, on 2 October 2001, determined that the attacks were regarded as an action covered by Art. 5. This was an expression of Alliance solidarity toward the United States in light of NATO’s 1999 Strategic Concept, which had already identified terrorism as one of the risks affecting NATO’s security. Both collective and independent actions were taken on the basis of the invocation of Art. 5. These included operation Eagle Assist (2001–2002), involving NATO Airborne Warning and Control System (‘AWACS’) radar aircraft helping to patrol the airspace over the United States, and operation Active Endeavour, monitoring shipping in the Mediterranean to detect and deter terrorist activity.

18 It is noteworthy that Art. 6 North Atlantic Treaty expressly defines its area of operation, which, for the purposes of identifying an armed attack, includes ‘the territory of any of the Parties in Europe or North America, … 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’—ie 30° latitude north) and ‘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’. Reference to the occupation forces was meant to implicitly include West Berlin until the end of the Cold War. It is noteworthy that the definition of the territories to which Art. 5 applies was revised by Art. 2 Protocol to the North Atlantic Treaty on the Accession of Greece and Turkey ([signed 22 October 1951, entered into force 15 February 1952] [1952] 34 UNTS 243), to include all of Turkey, the Mediterranean Sea, and forces, vessels, or aircraft when in or over the areas mentioned above.

19 The only provision addressing the structure of the Alliance is Art. 9 North Atlantic Treaty, whereby a Council is established, which considers ‘matters concerning the implementation of (the) Treaty’, if necessary promptly, and on which all parties shall be represented. The Council enjoys the capacity to set up subsidiary bodies, of which a defence committee focusing on the implementation of Arts 3, 5 North Atlantic Treaty is obligatory.

2. Additional Treaties

20 The absence of detailed organizational provisions in the North Atlantic Treaty, as described, has to some extent been compensated for by treaties, which regulate the status of the Alliance and of its members’ forces (Status of Armed Forces on Foreign Territory Agreements [SOFA]).

21 Most important as a means to resolve matters of overlapping sovereignty, as they arise out of the presence of foreign NATO forces on the territory of one of its members, is the Agreement (with Appendix) between the Parties to the North Atlantic Treaty regarding the Status of their Forces (‘NATO SOFA’). It defines the respective competences of the visiting forces and host nation authorities over such forces and their personnel. With regard to criminal jurisdiction, its provisions—in particular, Art. VII NATO SOFA—provide a scheme of overlapping jurisdiction. Notwithstanding the human rights traditions of NATO Member States, Art. VII (9) NATO SOFA includes a declaration of the fundamental rights that any system of justice must normally grant an accused. Furthermore, the NATO SOFA deals with claims arising out of injuries to persons or damage to property created by activities of a visiting force. Art. VIII (1) NATO SOFA waives intergovernmental claims, Art. VIII (5) NATO SOFA deals with official duty third-party claims, and Art. VIII (6) deals with ex gratia claims. According to Art. III NATO SOFA a visiting force’s military personnel are exempt from passport and visa regulations, as well as immigration inspection, when entering or leaving the host nation. Arts IXXII NATO SOFA cover tax and excise privileges.

22 In order to adapt the legal situation of NATO forces in the Federal Republic of Germany to its special legal status (Germany, Legal Status after World War II) Member States had negotiated an Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with Respect to Foreign Forces Stationed in the Federal Republic of Germany ([signed 3 August 1959, entered into force 1 July 1963] 481 UNTS 262). Minor amendments of 21 October 1971, and 18 May 1981, preceded major changes in the aftermath of German unification. During the negotiations leading to the Treaty on the Final Settlement with Respect to Germany the German government had requested a revision of the Supplementary Agreements. The amendments eventually agreed upon reflect the termination of the allied prerogatives and ensure that NATO forces stationed in Germany have the same rights and obligations as NATO forces stationed in other Member States of the Alliance (Agreement to Amend the Agreement of 3 August 1959, as Amended by the Agreements of 21 October 1971 and 18 May 1981, to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces Stationed in the Federal Republic of Germany [‘Supplementary Agreement’]).

23 With the above-mentioned (see para. 8 above) PfP, and its acceptance by Central and Eastern European States, a range of new military contacts was established. Apart from and beyond an expansion of NATO membership, this partnership emerged as the basis for exchange programmes, joint exercises, and combined military activities, necessitating appropriate SOFAs between NATO and PfP States. On 19 June 1995, the Agreement among the States Parties to the North Atlantic Treaty and the other States Participating in the Partnership for Peace regarding the Status of their Forces was signed. Only in some instances, supplementing agreements regarding visiting forces were concluded in addition to the PfP SOFA.

24 The Alliance’s legal personality and its competence in international and national law are established by the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff (‘Status of Representatives Agreement’). Art. IV Status of Representatives Agreement states: ‘The Organization shall possess juridical personality; it shall have the capacity to conclude contracts, to acquire and dispose of movable and immovable property and to institute legal proceedings’. Arts V–VII establish the Alliance’s immunities and the inviolability of its premises and archives; additional privileges are included in Arts VIII–XI.

25 NATO’s first headquarters were established in London in 1949. The headquarters moved to Paris in 1952 where they remained until France’s withdrawal from NATO’s military structure in 1966. Since 1967, the Alliance’s headquarters have been in Brussels, Belgium. In 1952, a Protocol (with Declaration) on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty ([signed 28 August 1952, entered into force 10 April 1954] 200 UNTS 340) was signed. It modifies and extends the NATO SOFA to each of the Supreme Headquarters. These headquarters enjoy legal personality and they may conclude business both with and within the receiving State.

C. Membership

26 The original 12 parties to the North Atlantic Treaty were Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, the United Kingdom, and the US. While Iceland has no established armed forces of its own, it has a Coast Guard, national police forces, and an air defence system. In the 1990s, it established a small voluntary expeditionary peacekeeping force (Iceland Crisis Response Unit), which is operated by the Icelandic Ministry of Foreign Affairs. Since 2006, Iceland has hosted and used NATO infrastructure based on its territory. Furthermore, it contributes civilian peacekeepers to NATO-led operations. As already mentioned (see para. 5 above), France withdrew from the integrated military command in 1966 but returned to full membership on 4 April 2009.

27 Based upon Art. 10 North Atlantic Treaty, which allows the parties by unanimous agreement to invite ‘any other European State’ to accede to the North Atlantic Treaty, membership has been enlarged. The first to join were Greece and Turkey. Following the 1974 Turkish invasion of Cyprus, Greece withdrew its forces from NATO’s military command structure until 1980. The Federal Republic of Germany joined on 9 May 1955, limited in terms of territory to West Germany. The accession of the Saarland to the Federal Republic of Germany in 1957 (Saar Territory), and the unification of Germany in 1990—affecting Berlin and the territory of the former German Democratic Republic—did not imply new members but effected changes in the territorial scope of application of the North Atlantic Treaty. The third enlargement came about with Spain joining on 30 May 1982 (Protocol to the North Atlantic Treaty on the Accession of Spain [signed 10 December 1981, entered into force 30 May 1982]).

28 So far, three post-Cold War enlargements have occurred, with the Czech Republic (Protocol to the North Atlantic Treaty on the Accession of the Czech Republic [signed 16 December 1997, entered into force 4 December 1998]), Hungary (Protocol to the North Atlantic Treaty on the Accession of the Republic of Hungary [signed 16 December 1997, entered into force 12 March 1999]), and Poland (Protocol to the North Atlantic Treaty on the Accession of the Republic of Poland [signed 16 December 1997, entered into force 12 March 1999]) joining on 12 March 1999, Bulgaria (Protocol to the North Atlantic Treaty on the Accession of the Republic of Bulgaria [signed 26 March 2003, entered into force 27 February 2004]), Estonia, Latvia, Lithuania, Romania, Slovakia, and Slovenia joining on 29 March 2004, and Albania (Protocol to the North Atlantic Treaty on the Accession of the Republic of Albania [signed 9 July 2008, entered into force 1 April 2009]) and Croatia (Protocol to the North Atlantic Treaty on the Accession of the Republic of Croatia [signed 9 July 2008, entered into force 1 April 2009]) joining on 1 April 2009. In essence, all these protocols follow a parallel structure and wording.

29 The criteria for membership and the procedures for enlargement have been refined beyond the text of the North Atlantic Treaty. Based upon a 1995 Study on NATO Enlargement, applicants must demonstrate: a functioning democratic political system based on a market economy; the fair treatment of minority populations; a commitment to the peaceful resolution of conflicts; the ability and willingness to make a military contribution to NATO operations; and a commitment to democratic civil-military relations and institutional structures. NATO has also developed a step-by-step process, which brings potential members closer to the Alliance. This process begins with accession of candidates to the PfP, which may be followed by an Individual Partnership Action Plan launched at the 2002 Prague Summit, and may include a so-called Intensified Dialogue, which may finally lead to a Membership Action Plan approved at the 1999 Washington Summit. Currently, Membership Action Plans have been agreed upon with Ukraine (2002), Georgia (2004), Azerbaijan (2005), Armenia (2005), Kazakhstan (2006), Moldova (2006), Bosnia and Herzegovina (2008), and Montenegro (2008).

D. Structure

30 The North Atlantic Treaty is very rudimentary in respect of the establishment of NATO’s organizational structure. Its Art. 9 serves as the legal basis for the establishment of the North Atlantic Council and charges it with the capacity to meet promptly at any time and to set up ‘such subsidiary bodies as may be necessary’. In the beginning, NATO was mainly a planning agency with a number of committees being gradually established on the basis of Art. 9 North Atlantic Treaty. This political structure soon proved to be inadequate. Even though planning and coordination at an intergovernmental level remained NATO’s primary peacetime tasks, the rise of the Cold War led to the establishment of an integrated military structure with a centralized command. Force goals were adopted and the North Atlantic Council was equipped to meet more regularly at the level of permanent representatives of ambassadorial rank backed up by national delegations. NATO’s structure underwent considerable expansion beyond its modest original framework. After the end of the Cold War, the Alliance initiated two major committee restructurings: the first in 1990; and the second in 2002 after the attacks of 11 September 2001. Generally, within NATO’s structure, the civilian and the military part must be clearly distinguished.

1. Civilian Structure

31 The North Atlantic Council (‘NAC’) is NATO’s supreme body. Although it may take the form of a meeting of Heads of State, a ministerial session, or a session of the permanent representatives, all decisions agreed upon are of equal standing. Decisions are reached by consensus and, apart from very general communiqués, the discussions in the NAC are confidential so as to encourage the free exchange of views.

32 In order to organize its work efficiently, NATO has established a number of committees, subject to and normally reporting to the NAC. The Nuclear Planning Group and the Military Committee are by far the most important. The Defence Planning Committee, which earlier was also one of NATO’s primary decision-making bodies, was dissolved in 2010, with its functions being transferred to the NAC. Each Member State is represented at every level of the structure in the fields of NATO activity in which it participates. Even though another committee review has been underway since mid-2010, reference to existing committees illustrates the broad scope of action: Committee on Proliferation; C3 Board (referring to consultation, command, and control); High Level Task Force on Conventional Arms Control; Verification Coordinating Committee; Committee for Standardization; Logistics Committee; Civil Emergency Planning Committee; Committee on Public Diplomacy; etc.

33 The office of the Secretary-General is not mentioned in the North Atlantic Treaty. In February 1952, in light of the need to establish a functioning NATO bureaucracy, the NAC decided to establish it. Today, the Secretary-General heads the Alliance’s international bureaucracy and bears responsibility for steering the process of consultation and decision-making in the Alliance and ensuring that decisions are implemented. The Secretary-General chairs the Alliance’s principal political decision-making bodies, serves as the principal spokesman of the Alliance, and is the senior executive officer of the NATO International Staff, responsible for making staff appointments and overseeing its work. The Secretary-General enjoys the support of a Deputy Secretary-General. Appointments are for a four-year term, based on informal diplomatic consultations among Member States. Traditionally, Europeans have held the position.

34 NATO’s international bureaucracy includes the office of the Secretary General, seven divisions, each headed by an Assistant Secretary General, and a number of independent offices. These include the following divisions: Political Affairs and Security Policy Division; Defence Policy and Planning Division; Operations Division Defence Investment Division; Public Diplomacy Division; Executive Management Division; and Emerging Security Challenges Division. Among the independent offices, the NATO Office of Security and the NATO Office of Resources, both headed by a Director, the Office of the Financial Controller, and an independent International Board of Auditors deserve mentioning. Since its establishment in 1951, NATO’s civil service has grown considerably; today, some 5,000 civilians work for NATO in different agencies and functions.

2. Military Structure

35 Subordinate to the NAC, the Military Committee is NATO’s highest purely military authority. It is made up of each Member State’s Chief of Staff, or a permanent military representative—with the exception of Iceland who, lacking military forces, may be represented by a civilian. The chairman, who is elected for a term of two years by the Military Committee, is assisted by a deputy and by the director of the International Military Staff, which, as the Military Committee’s military support staff and executive agent, is organized into the following sections: Plans and Policy Division; Operations Division; Intelligence Division; Cooperation and Regional Security Division; Logistics; Armaments and Resources Division; NATO Situation Centre; Financial Controller; NATO Headquarters Consultation, Control, and Communications Staff (‘HQC3’); Partner Country Representation; NATO Training Group; Committee on Women in the NATO Forces; and the NATO Military Audio-visual Working Group. The Military Committee submits recommendations to NATO’s political authorities on measures considered necessary for the common defence of NATO, providing direction and advice on military policy and strategy. The Military Committee is responsible for the overall conduct of the military affairs of the Alliance under the authority of the NAC.

36 In peacetime, with the exception of several specialized military organizations and agencies dealing, among others, with logistics, production logistics, standardization, civil emergency planning, air traffic management, communication, and information systems, only NATO commanders and command structures are organized directly under the authority of the Military Committee. Today, there are two strategic commands: the Allied Command Operations (‘ACO’) and the Allied Command Transformation (‘ACT’). ACO is responsible for the strategic, operational, and tactical management of combat and combat support forces of NATO members. ACT handles the induction of the new Member States’ forces into NATO, and NATO’s research and training capability. Both commanders are US officers. ACO has retained the label SACEUR, and is based in the Supreme Headquarters Allied Powers Europe (‘SHAPE’). ACO includes Joint Force Command Brunssum in the Netherlands, Joint Force Command Naples in Italy, and Joint Force Command Lisbon in Portugal. In addition, other NATO Force Structure formations, such as the NATO Rapid Deployable Corps and the NATO Airborne Early Warning Force. ACT, basically the successor of the Supreme Allied Commander Atlantic (‘SACLANT’), is located in the US. It includes the Joint Warfare Centre (Norway), the Joint Force Training Centre (Poland), the Joint Analysis and Lessons Learned Centre (Portugal), and the NATO Undersea Research Centre (Italy).

37 Although the command structures and their responsibilities in time of war are worked out in some detail, the overwhelming majority of military manpower earmarked or available to NATO remains under national command and control in peacetime.

E. The North Atlantic Assembly

38 Although the North Atlantic Treaty does not provide for a parliamentary assembly, parliamentarians, in 1954, established a ‘NATO Parliamentarians Conference’ that renamed itself the NATO Parliamentary Assembly in 1967. It is currently composed of 257 members selected by the parliaments of the NATO Member States from among their members; none may, however, be ministers or members of a government. The first meeting was held in 1955. Owing its existence to the initiative of parliamentarians and not governments, the NATO Parliamentary Assembly was characterized by a notable lack of formality. The Conferences’ Rules of Procedure were first adopted in 1961. The size of each delegation is laid down in the Annex of the Rules of Procedure (with a range from 3 to 36 members).

39 The NATO Parliamentary Assembly considers and debates problems affecting the Alliance, and forms committees and sub-committees to work and report in greater depth. It makes use of recommendations addressed at the NAC, resolutions addressed at governments or parliaments of members, and opinions adopted in reply to a request of the NAC or an international organization. The NATO Parliamentary Assembly has no law- or rule-making powers, but it serves to promote cooperation and debate within NATO and promotes the ideas underlying the organization. In the 1990s the NATO Parliamentary Assembly played a role in facilitating the enlargement process of the NATO. Generally speaking, NATO has recognized the contribution of an informal involvement of parliamentarians. However, there are no real prospects to integrate the NATO Parliamentary Assembly into the Alliance, mainly due to concerns of confidentiality. Nevertheless, the Secretary-General regularly reports to the NATO Parliamentary Assembly on a voluntary basis.

F. Financing and Budget

40 NATO’s financial arrangements reflect the complexity of its tasks and organizational structure. Given the mix of national, intergovernmental and international organizational elements, it is important to distinguish between direct and indirect contributions of Member States to NATO’s budget (International Organizations or Institutions, Financing of). Direct contributions represent a relatively small percentage of each member’s overall defence budget.

41 Direct contributions, following the principle of common funding, basically help to pool resources within NATO’s framework. They serve collective requirements such as NATO’s command structure, NATO-wide air defence, command, and control systems, and Alliance-wide communications systems, beyond the responsibility of one single member; they include the civil budget, the military budget, and NATO’s Security Investment Programme. Direct contributions follow an agreed cost-sharing formula based on relative gross national income. These are the only funds where NATO authorities identify the requirements and set the priorities in line with overarching Alliance objectives and priorities.

42 Indirect contributions may take the form of participation in NATO-led operations and in efforts to ensure that national armed forces are interoperable with those of other member countries. Largely, they also cover the procurement of military forces and military assets such as ships, submarines, aircraft, tanks, artillery, and weapons systems. Joint funding refers to projects, which are not necessarily of direct benefit to all NATO members. This may include projects in which participating countries can identify the requirements, the priorities, and the funding arrangements, but NATO provides political and financial oversight. Thus, NATO’s infrastructure projects (eg airfields, pipelines, air defence, and missile sites) are funded according to the reasoning that a host State should not have to bear the full costs of common installations used by the forces of other member countries of the alliance.

43 With regard to common funding, for the costs of running the organization, the NAC, after receiving budget estimates from the Civil and Military Committees, approves an annual budget. The NAC is also responsible for laying down the NATO financial regulations. Financial controllers supervise the day-to-day financial operations of the International Staff, the International Military Staff, and the Supreme Commands. The financial accounts of all the arrangements are audited by the International Board of Auditors, which is made up of high audit officials from member countries appointed by the NAC but selected and remunerated by their respective governments.

G. Main Activities

1. Political Activities

44 Even though NATO is often perceived as a primarily military alliance, it has contributed to establishing a framework for consultation and coordination among its Member States. This is not only reflected in the coordinated response of the Allies to the Helsinki process and in its active contribution to arms control between the East and West, but also in the role taken up by the Alliance in peacekeeping and peace-enforcement. While the latter activities are military in nature, they have all been preceded by a political process, which galvanized a common position among NATO members in response to security problems. Sometimes, NATO, through its Secretary-General, has also been able to act as a broker in bilateral disputes between Member States. Above all else, the machinery of the NATO Alliance ensures that the preoccupations and difficulties of individual members are known to the other members and understood as far as they affect the common undertaking.

45 In contrast, little has been accomplished in the area of non-military cooperation, such as in the environmental and economic fields (Art. 2 North Atlantic Treaty). Attempts to expand NATO’s concerns over and beyond the military and strategic areas have not been successful, not least because of the duplication this entails with other international organizations.

2. Military Activities

46 NATO’s military activities cover an extremely broad spectrum; some of them are rather political in nature, others more narrowly technical. Most striking is the unexpected broadening of its military activities after the end of the Cold War, not only within Europe, but even more so beyond. Even though it is a matter of controversy whether military alliances may be qualified as a regional organization within the meaning of Chapter VIII UN Charter (Regional Arrangements and the United Nations Charter), NATO, apart from the African Union (AU), has become one of the most important agencies involved in the implementation of UN-mandated and other peacekeeping and peace-enforcement activities.

(a) Defence

47 One of the most important examples of a politico-military activity is NATO’s defence planning process. According to NATO’s website, it ‘prevents the renationalisation of defence policies, while at the same time recognising national sovereignty’ (NATO ‘The NATO Defence Planning Process’ para. 1). The NAC—replacing the Defence Planning Committee, which was dissolved in 2010—today is the decisive body in approving force goals and providing ministerial guidance for NATO’s defence planning. Force goals influence defence planning of Member States; defence plans of Member States are measured against the force goals set for them by NATO. Normally, before setting its annual national defence budget, each Member State engages in close consultation with NATO. The Alliance’s force plan thus consists of the sum of each member’s national defence budget applied or committed to NATO.

48 Of similar politico-military importance is NATO’s Nuclear Planning Group (‘NPG’). It takes decisions on the Alliance’s nuclear policy, which is kept under constant review and modified or adapted in the light of new developments. All member countries, with the exception of France, are part of the NPG, which reviews the Alliance’s nuclear policy in the light of changing security challenges. Its work is prepared by an NPG Staff Group, which consists of national delegations.

49 NATO activities at the operational and technical levels cover a broad variety. In addition to its command structures and contingency plans, NATO maintains standing naval forces in the Atlantic (‘STANAVFORLANT’), in the Mediterranean (‘STANAVFORMED’) and in the Channel (‘STANAVFORCHAN’); rapid deployable corps; and installations and early warning air defence systems.

50 NATO conducts joint military exercises on land, sea, and air. In the sensitive issues of weapons production and standardization NATO encourages joint ventures and consultations between Member States, and seeks to reduce the logistical difficulties inherent in an alliance comprising so many national forces. Most important are NATO Standardization Agreements for procedures and systems and equipment components (so-called ‘STANAGs’). They are developed and promulgated by the NATO Standardization Agency in conjunction with the Conference of National Armaments Directors and other authorities concerned.

(b) Peacekeeping and Peace-Enforcement

51 NATO’s peacekeeping and peace-enforcement activities are an outcome of the Alliance’s new strategic concept after the end of the Cold War. The Alliance itself characterizes such activities by using the much broader label of ‘peace-support and crisis-management operations’. NATO has developed its pertinent role since its first military intervention in 1995. Its activities include an increasingly diverse array of operations, with roughly 140,000 military personnel in early 2010 engaged in NATO missions around the world (currently operating in Afghanistan, Kosovo, Libya, the Mediterranean, off the Horn of Africa, in Iraq, and in Somalia).

52 NATO first voiced its readiness to take on such responsibilities at the 1992 Oslo Ministerial Meeting of the North Atlantic Council, when foreign ministers announced their readiness ‘to support, on a case by case basis in accordance with their own procedures, peacekeeping activities under the responsibility of the Conference on Security and Cooperation in Europe’ (NAC Ministerial Meeting ‘Final Communiqué’ [4 June 1992]). This included making available Alliance resources and expertise for CSCE peacekeeping operations. In June 1992, CSCE countries acknowledged a role for the CSCE in peacekeeping and adopted a set of principles governing CSCE operations, including the potential use of the resources, experience, and expertise of NATO.

53 In December 1992, the Alliance stated its readiness to support peacekeeping operations under the authority of the UN Security Council. Assistance to the UN in the implementation of resolutions relating to the former Yugoslavia had already begun in July 1992 when NATO ships were involved in monitoring operations in the Adriatic in support of the UN mandated embargo against the former Yugoslavia (UNSC Res 713 and 757). From October 1992 onwards, this operation was supported by NATO airborne early-warning aircraft and maritime patrol aircraft monitoring the UN mandated no-fly zone over Bosnia and Herzegovina. Enforcement operations in support of UN sanctions, by NATO naval forces in the Adriatic, began in November 1992 as an extension of the naval monitoring operations. On 31 March 1993, the UN Security Council passed UNSC Res 816 authorizing enforcement of the no-fly zone over Bosnia and Herzegovina. This resolution authorized Member States to take all necessary measures to ensure compliance with the ban. In June 1993, the NAC also offered protective airpower for the UN Protection Force (‘UNPROFOR’) in the performance of its overall mandate. On the basis of UNSC Res 836—authorizing Member States to take military action through the use of air power—NATO subsequently declared ultimatums concerning the safe areas in Bosnia and Herzegovina, threatening parties to the conflict with NATO air strikes if not complying with Security Council resolutions on the safe areas. Beginning in February 1994, NATO applied air power under a dual-key system, according to which UN commanders on the ground had to obtain approval from civilian UN officials before calling in NATO air strikes.

54 Following the Dayton Agreement, NATO began to implement the military aspects of the Agreement as included in Annex 1A Dayton Agreement on the Military Aspects of the Peace Settlement. Annex 1A provided for the creation of a multinational military IFOR, under the command of NATO. This force was composed of ground, air, and maritime units from NATO and non-NATO States, deployed to Bosnia and Herzegovina to help ensure compliance with the provisions of the Agreement. NATO deployed some 60,000 troops. This operation was followed in December 1996 with the deployment of a 32,000-strong SFOR, which maintained a secure environment in Bosnia and Herzegovina until the mandate was handed over to a European Union (‘EU’) force in December 2004.

55 NATO also contributes to the so-called KFOR, established on the basis of UNSC Res 1244 (1999) and the Military-Technical Agreement between the International Security Force (‘KFOR’) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia ([signed and entered into force 9 June 1999] UN Doc S/1999/682, 3). Operating under Chapter VII UN Charter, KFOR is a peace-enforcement operation. KFOR was meant to deter renewed hostility and threats against Kosovo by Yugoslav and Serb forces; to establish a secure environment and ensure public safety and order; to demilitarize the Kosovo Liberation Army; to support the international humanitarian effort; and to coordinate with and support the international civil presence. Following Kosovo’s declaration of independence in February 2008, NATO agreed to maintain its presence on the basis of UNSC Res 1244 (1999) (Assembly of Kosovo ‘Kosovo Declaration of Independence’ [17 February 2008]).

56 Since October 2001, NATO, in response to the terrorist attacks of 11 September 2001, has conducted its maritime surveillance operation Active Endeavour in the Mediterranean. It aims at detecting and deterring terrorist activity in the Mediterranean. Since April 2003, NATO, while respecting applicable rules of the law of the sea, has been systematically boarding suspect ships (Ships, Visit and Search).

57 Responding to a request from the Macedonian government, NATO, relying also upon strong inter-institutional cooperation with the OSCE and the EU, implemented three successive operations there from August 2001 to March 2003. After disarming ethnic Albanian groups operating on Macedonia’s territory, NATO provided protection for international monitors overseeing the implementation of the peace plan, and eventually provided security advice to the government.

58 In 2003, NATO took over the leadership of the ISAF in Afghanistan, as established by UNSC Res 1386 (2001). ISAF supports the authority of the Afghan central government in order to create an environment conducive to the functioning of democratic institutions and the establishment of the rule of law. In particular, ISAF helps to establish professional Afghan National Security Forces (ie army and police). In addition, ISAF is involved in facilitating the development and reconstruction of Afghanistan through so-called Provincial Reconstruction Teams (‘PRTs’).

59 Following the 2004 Istanbul Summit, NATO has become involved in Iraq by providing a so-called NATO Training Mission in Iraq, which helps Iraq to establish effective and accountable security forces.

60 In 2008 (between October and December) and in 2009 (from March to August) NATO performed counter-piracy activities (Operation Allied Provider) in the Gulf of Aden and off the Horn of Africa. First, in response to a request from the UN Secretary-General, NATO naval forces provided escorts to UN World Food Programme (WFP) vessels on their way through the Gulf of Aden; also, responding to an urgent request from the AU, NATO escorted a vessel chartered by the AU carrying equipment for the Burundi contingent deployed to the African Union Mission in Somalia. Later, NATO launched counter-piracy operation Allied Protector, to improve the safety of commercial maritime routes off the Horn of Africa. Since 2009, NATO has performed Operation Ocean Shield focusing on at-sea counter-piracy operations off the Horn of Africa, also offering, at the request of States in the region, assistance in developing their own capacity to combat piracy activities.

61 Since June 2007, NATO has provided airlift support for AU peacekeepers involved in the AU Mission in Somalia. From 2005–2007, NATO provided air transport for the AU peacekeeping mission in Sudan (‘AMIS’) until this mission was succeeded by the UN-AU Mission in Darfur (‘UNAMID’).

H. NATO and the European Security and Defence Policy

62 As the Common Security and Defence Policy has become a major element of the European Common Foreign and Security Policy of the EU, its relationship with NATO had to be clarified. The European Common Security and Defence Policy basically replaces the European Security and Defence Identity, which had been developed to accommodate European interests within NATO (European Common Security and Defence Policy). The current legal and political situation is the outcome of parallel developments within the WEU, NATO, and the EU. A first step was the adoption, in 1992, of the so-called Petersberg tasks by the WEU. They were, among others, designed to address possible destabilization of Eastern Europe after the end of the Cold War. Without military forces of its own, the WEU addressed a broad range of topics from humanitarian and rescue tasks across peacekeeping tasks to tasks for combat forces in crisis management, including peacemaking.

63 Important intermediate decisions were adopted at the 1996 NATO Berlin meeting. In an effort to allow European States to act militarily where NATO did not want to and to alleviate the US financial burden of maintaining military bases in Europe, an agreement was reached whereby the WEU would contribute to establishing a proper European Security and Defence Identity as a ‘European pillar’ within NATO structures. The compromise reached at Berlin allowed European States—through the WEU—to use NATO assets if they so wished. The EU incorporated the Petersberg tasks on the basis of the Treaty of Amsterdam, framing a common security and defence policy based on these tasks. At the 1999 Cologne EU Council meeting, it was decided to incorporate the role of the WEU within the EU, eventually closing the WEU. Implementation of the EU’s security role went ahead with the adoption of the Helsinki Headline Goal in 1999 (Helsinki European Council ‘Presidency Report on non-military crisis management of the European Union’ [10–11 December 1999]), and the European Capabilities Action Plan adopted at the Laeken Summit in December 2001 (Laeken European Council ‘Presidency Conclusions European Council Meeting in Laeken’ [14–15 December 2001]).

64 Concerns were voiced that an independent European security pillar might result in a declining importance of NATO as a transatlantic forum. In order to avoid duplication, decoupling, and discrimination among NATO members in light of the continuing process of European integration, EU and NATO adopted a joint declaration in 2002, focusing on partnership, effective mutual consultation and cooperation, equality and due regard for ‘the decision-making autonomy and interests’ of both, and, finally, ‘coherent and mutually reinforcing development of the military capability requirements common to the two organizations’ (EU–NATO Declaration on ESDP 2). Following the principles of ‘separable, but not separate’ forces, the EU–NATO ‘Berlin Plus Agreement’ of 17 March 2003 provides the institutional underpinnings of such cooperation. It allows the EU to use NATO structures, mechanisms and assets to carry out military operations if NATO declines to act. Furthermore, an agreement was signed on information sharing between the EU and NATO.

65 Besides operational links, NATO also cooperates with the so-called ‘Eurocorps’ which was established on the basis of a Franco-German agreement concluded on 22 May 1992. The Eurocorps is based on the joint Franco-German Army Brigade, agreed upon in January 1988. On 16 October 1991 the French and German foreign ministers had published proposals according to which the joint Franco-German brigade would be the core of a future defence force. Its missions would include the defence of Western Europe as well as humanitarian and peacekeeping operations. The joint Franco-German brigade would be absorbed by the new force. In May 1993, the Eurocorps’ role as a multinational force under the auspices of the WEU was confirmed by the governments concerned and in November 1993 agreement was reached on the manner of its future deployment. Belgium, Luxembourg, the Netherlands, and Spain have meanwhile also expressed their interest in participating. As early as December 1992, an agreement was concluded between the French and German authorities and NATO’s SACEUR on the relationship between the Eurocorps and NATO and the employment of the Eurocorps for operations under NATO command.

66 Several changes were brought about by the Lisbon Treaty, including the renaming of the European Security and Defence Policy to Common Security and Defence Policy and the creation of the position of the High Representative of the Union for Foreign Affairs and Security Policy. The common security and defence policy shall include the progressive framing of a common EU defence policy. This will lead to a common defence, once the European Council, acting unanimously, so decides. Such policies shall not prejudice the specific character of the security and defence policy of certain Member States, which see their common defence realized in NATO, under the North Atlantic Treaty, and be compatible with the common security and defence policy established within that framework. Also, with the Lisbon Treaty the WEU came to an end in 2010.

I. Evaluation and Recent Developments

67 Since 1949 NATO has gone a long way in support of the parties’ aims laid down in the preamble to the North Atlantic Treaty (ie ‘to seek to promote the stability and well-being in the North Atlantic area’ and ‘to unite their efforts for collective defence and for the preservation of peace and security’). Much has been written over the periodic troubles of the North Atlantic Alliance, and comparatively little on those qualities of suppleness, which have enabled NATO to accommodate the changes in political realities since 1949. NATO’s more or less continuous process of consultation and re-evaluation has helped to stave off institutional rigidity and complacency and to forestall differences within the Alliance.

68 NATO’s transformation after the end of the Cold War can best be understood as an adaptation to a changing security environment. Whereas some commentators have raised questions about its continued relevance in light of the breakdown of the Warsaw Pact Organization, NATO has developed a broad security agenda. Even though this raised questions of legality and legitimacy on the basis of the rudimentary provisions of the North Atlantic Treaty, it seems that the new role of the Alliance has largely been accepted. Illustrations to this end are the invocation of Art. 5 North Atlantic Treaty in 2001 (see para. 17 above), as well as the involvement of NATO in counter-piracy operations (see para. 60 above) and its enforcement of a no-fly zone over Libya on the basis of UNSC Res 1973 (17 March 2011). In 2016, NATO members recognized cyberspace as a domain of operations, comparable to operations in the air, on land, and at sea.

69 NATO’s transformation has not made its traditional role obsolete. Ample proof can be taken from consultations based upon Art. 4 North Atlantic Treaty, which may be requested by parties, ‘whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened’. Turkey invoked Art. 4 in light of the non-international armed conflict in Syria (after the downing of a Turkish reconnaissance jet and after shelling from Syrian territory, both in 2012), Poland in response to Russia’s intervention in Crimea in 2014, and Turkey again with a view to threats arising from the so-called Islamic State in 2015.

70 NATO’s relations with Russia are undergoing a difficult period, partly as a consequence of NATO’s enlargement, but more seriously following the 2014 Russian intervention in Crimea. In 2014, NATO suspended practical co-operation with Russia. Furthermore, also in 2014, NATO decided to establish a new Very High Readiness Joint Task Force (labelled a ‘spearhead force’) of 5,000 as part of its Response Force (established in 2002) at bases in Estonia, Lithuania, Latvia, Poland, Romania, and Bulgaria.

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