Should the U.S. Even Bother to Invoke Article V of the North Atlantic Treaty After Paris?

by Julian Ku

Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V’s collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama’s ongoing use of military force against ISIS could be “legalized” as a matter of U.S. constitutional law.  Here is Ilya:

Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.

I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best.  But I am not sure I agree with him that Article V should be read as a “pre-authorization” for the President to use military force without going back to Congress for a specific authorization.

Here is the full text of Article V:

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 .

I agree that the horrible Paris attacks would constitute an “armed attack” on a member of NATO “in Europe or North America.”  But I don’t think Article V requires the other NATO members to provide military assistance.  Rather, “if such an armed attack occurs,” a NATO member “will assist the Party so attacked [France]…by taking forthwith…such action as it deems necessary, including the use of armed force.” (emphasis added).

I read this language as requiring the U.S (for instance) to assist the attacked party (France), and that this assistance could “include the use of armed force.”  But I don’t think it has to.

Moreover, Article IX of the North Atlantic Treaty states that “[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” (emphasis added).  I read this as requiring Parties to carry out provisions like Article V “in accordance with their respective constitutional processes.”  If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress.  This might actually happen. Republican presidential candidate Jeb Bush actually called for a “declaration of war on ISiS” today.  

Of course, if you believe (as I do) that the President has independent constitutional authority to use military force without Congress in most circumstances, than all Article XI does not limit the President much.

In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers.  The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are).  Invoking Article V should allow the U.S. to use armed force to assist France consistently with the UN Charter.  That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter.  But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.

http://opiniojuris.org/2015/11/16/should-the-u-s-even-bother-to-invoke-article-v-of-the-north-atlantic-treaty-after-paris/

9 Responses

  1. There are a few things that are quite incomplete (to not say wrong) about this post. I will draw attention to just some of them. For instance, at no point does it take into account the fact that France may need to consider itself under attack, which has not happened yet. And although ISIS have posted a video claiming that the attacks were their doing, the only identified perpetrator is a French national, whom France may decide to regard under its own national criminal law. Further, under the North Atlantic Treaty, as in International Law generally, a state can’t request assistance (or invoke Article V) on behalf of another state. I would not spend time discussing the version of international law of any of the Bush family , but war on Non-State actors is something that does not make particular conceptual consensus yet. Finally, there is a lot to say about territorial states being “unable or unwilling” before we envisage any Afghanistan-like scenario, which (as a reminder) was also subsequently the subject of the UNSC authority and authorization.

    I understand that this entry needed premises to discuss a possible “legitimization” of the activities against ISIS in light of the USA internal mechanisms for intervention, but it seems to have taken some shortcuts I could not resist discussing.

  2. Thanks for the post . I haven’t yet read the ” North Atlantic treaty ” but I was wondering:

    The Author of the post, interpret the language of Article IX, as restricting the US president , but, it is not the language it seems , the language insists rather on:

    ” Carried out by the parties in accordance ……” So , this is not a characteristic language of stipulation but of : Action rather ! And so , it does dictates rather :

    The manner , with which , shall be carried out , and not , provided that , or subordinated to ( in such case , congress approval ) . Otherwise , where is the obligation , the binding treaty or provision as such ??

    Thanks

  3. Julian: the treaty does not require each state to use armed force — Article 5 states: “such action as it deems necessary,” so there is a choice for each member of NATO. Presients that were Republicans and Democrats have claimed the constitutional authority to execute treaties of the United States like the North Atlantic Treaty and the U.N. Charter to go to war (since Truman at least), under U.S. Const. art. II, sec. 3 (the Pres. has the duty to faithfully execute the “Laws,” which include treaties of the U.S.). Regarding the constitutionality of U.S. participation in the war in Libya, see, e.g., http://ssrn.com/abstract=2061835
    The war in Iraq and Syria is an IAC against an insurgent (ISIS) in at least two states and it is permissible re: U.S. et al. attacks on ISIS under U.N. Charter, art. 51 — collective self-defense with the consent of the govt. of Iraq.

  4. Firstly, coalition forces have been bombing and hitting IS targets in Syria and Iraq for quite some time. Secondly, Article V is subject to the provisions of the UN Charter. Till date none of the coalition partners or Russia or Iran who have been active in the conflict zone have invoked even Article 51 of the Charter to justify their military strikes. Russia may defend its actions as rendering assistance to a friendly power (Syria) on its request. Ditto for Iran. Another aspect which needs to be examined is whether Syria satisfies the requirements of statehood, since the government is not in control of a defined territory.

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