This article attempts to doctrinally define NATO’s obligations under International Refugee Law. Doctrinal work is described as research that aims to give a systematic exposition of the principles, rules and concepts governing a particular legal field or institution and analyses the relationship between these principles, rules and concepts with a view to solving unclarities and gaps in the existing law.[1] The systematic exposition of the principles, rules and concepts formulates the basis of this research objective; what are NATO’s obligations under International Refugee law (IRL)?
The methodology used for system-building is traditional, legal-dogmatic analysis. This article is in other words neither novel in its methodology, nor in its analysis of individual legal issues. What this article instead adds to the body of the knowledge is a pedagogic systemisation of a complex, yet increasingly important area of international law.
Chapter I begins with an important overview of NATO today, as this to a large extent contextualises the need for a coherent understanding of NATO’s refugee obligations. (section 1). Chapter II describes a fictitious scenario where NATO may have to give regard to IRL. Chapter III gives a very brief reminder of an international organisation’s obligations in the international perspective. The definitional Chapter IV will then approach the topic in positive terms, building a conceptual skeleton of NATO’s International Refugee Obligations by analysing (4) The North Atlantic Treaty; NATO’s constitutive charter, (5) NATO’s primary international law obligations, (6) obligations under Resolutions from the United Nations Security Council and (7) NATO’s internal law.
Research Questions
1. ‘Can IO’s hold international obligations like States can?’ Chapter III reminds us that IO’s hold independent legal personality and thus have rights and obligations.
2. ‘Does IRL apply to NATO?’ Chapter IV will identify the current IRL architecture, and assess whether it applies to NATO.
3. ‘Was NATO established to protect the interests of refugees?’ Chapter IV will identify the NATO’s founding purpose and confirm NATO was not established to protect the interests of refugees.
4. ‘What are the sources of obligations NATO has to refugees?’ Chapter IV identifies five primary sources; constitutional, conventional, customary, United Nations Security Council Resolutions and NATO internal law.
CHAPTER 1
1. Introduction
NATO is a military defence alliance, not a catch-all security alliance.[2]
Elisabeth Braw, Senior research fellow, RUSI’s Modern Deterrence Project. December 2019.
When it comes to IOs, it is only a little bit exaggerating to say that we don’t know what the wrongful acts are.[3]
August Reinisch at the 2015 Annual Meeting of the American Society of International Law.
Protection of Civilians is paramount to projecting long-term peace and stability, and has a strong connection between tactical application and strategic messaging.[4]
NATO OPEN Publications, Preparing to Protect: Advice on Implementing NATO’s Protection of Civilian Policy. 2018
NATO infrequently defines itself as an international organisation. Its Secretary General, Jens Stoltenberg repeats the mantra that NATO is a ‘political and military alliance’. NATO has never ratified or acceded to an international Treaty. Why is this? What does this mean in international law? More specifically what does this mean for an alliance whose principle task is to ensure the protection of nearly 1 billion citizens of its member states and to promote security and stability in the North Atlantic area?[5] What international refugee law obligations does NATO have in light of the ongoing or forthcoming “migrant crisis”?
Pursuing goals to “safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law”,[6] NATO has launched humanitarian assistance missions,[7] anti-piracy operations,[8] peace enforcement operations[9] and military training missions.[10] It is currently engaged in six of these ‘sub’ or ‘non-Article 5’ operations, and recently conducted exercise Trident Juncture,[11] its largest exercise in decades. Under Article 9 of the North Atlantic Treaty (NAT), the North Atlantic Council (NAC) can create subsidiary bodies, known as NATO agencies. The Ottawa Agreement gives these agencies the same legal status as NATO.[12] The now four agencies, [13] are similarly busy supporting seven operations and activities in 2020, offering more than 150 services,[14] including spearheading NATO’s logistical response to the COVID-19 pandemic[15] and overseeing more than 300 scientific projects.[16] None of the agencies have ever had an organic refugee or human rights mandate.
Pursuing a 360-degree approach to security, in 2016 NATO expanded the remit of Operation Active Endeavour into a much wider non-Article 5 maritime security framework called Operation Sea Guardian, combatting terrorism, uncontrolled migration and human trafficking, which present considerable challenges to the southern flank of Europe. Whilst uncontrolled migration numbers have dropped since the 2015 ‘migrant crisis’ it is almost certain this southern flank will become NATO’s ‘soft underbelly’ to those entering from the conflict and climate risk MENA region.
NATO’s founding principles are being tested with some allies accused of human right abuses (Turkey[17]), dismantling of democratic institutions and the rule of law (Hungary,[18] Turkey,[19] Poland,[20]) and punitive migration policies; including pushbacks (Greece,[21] Spain,[22] Italy,[23]) and poor and intimidating treatment (Greece,[24] Hungary, [25] Bulgaria,[26]). The immediate consequences of the severely fraying EU-Turkey deal are playing out on NATO allies Turkey, Greece and Bulgaria’s shared borders.[27] The COVID-19 pandemic is having an impact on refugees and their host communities,[28] with border, port and infrastructure closures denying cross border and internal movement.[29] Nationalism and populism continue to rise across the alliance, potentially weakening leadership and support for the organisation.
Regardless of contemporary criticism, the reality is that NATO is addressing the implications of the evolving global power structure for Euro-Atlantic security. It is undeniable that NATO, unique in its purpose as an international security ‘political and military’ organisation, has an important and vital role to play with the drastic increase in migration into its member State’s sovereign territory. Human rights and immigrant advocacy groups remind us that military force is not the appropriate tool to respond to migration and refugee movement.[30] With allies and non-allies alike increasingly looking for collective solutions with managing and responding to the influx of migration, NATO must be clear in the systematic exposition of the principles, rules and concepts governing its refugee doctrine.
CHAPTER 2
2. Scenario
In exploring NATO’s refugee obligations this author has envisaged dozens of scenarios in which NATO will have to give regard to a mass movement of refugees. This paper will refer to the following fictitious but realistic scenario throughout this paper:
- [31] which they claim legitimises their push-backs. Tensions rise further and violent, sometimes lethal force is reported to have been used to prevent land crossings.
CHAPTER 3
3. International Organisation’s obligations in international perspective
Treaties and custom represent the primary sources for the creation of legal norms. This is confirmed in Article 38(1) of the Statute of the ICJ. The question of inter se primacy or interaction between the various sources is not within this paper’s remit. Importantly as will be seen, norms for international organisations can come from other sources.
In the 1949 Reparations Advisory Opinion the International Court of Justice applied these legal norms of rights and obligations to the United Nations, an international organisation with ‘objective legal personality’.[32] International organisations will also gain Treaty contracting powers under the second Vienna Convention, equal to States under the law of treaties equality of parties principle.[33] An international actor, whom may invoke responsibility and claim reparation for breach of obligation may be; states; international organisations; non-state actors; but crucially for those seeking protection under international refugee law, an international actor may also be individuals under international law.[34] The law of international responsibility is ‘colour-blind’ to the source of international obligation.[35] Thus international law can be described as ‘a unified legal order in which different legal subjects interact by definition under one single set of rules.’[36]
What this means in theory is that international law should bind IO’s to the same extent as it binds States. IO’s, like States, should not be bound by treaties without their consent. Additionally, like States, IO’s should bound by principles of customary international law or general principles. A fundamental difference is exposed however depending on an individual IO’s [lack of] capacity to do so because of their limited authorities. The scope of an IO’s authorities is found in the constitutive document. In Chapter four this article will consider what NATO’s constitutive document indicates about its international refugee obligations as a starting point.
CHAPTER 4
NATO’s International Refugee obligations: Conceptual skeleton
This chapter will build a conceptual skeleton of NATO’s International Refugee Obligations by analysing (4) The North Atlantic Treaty; NATO’s constitutive charter, (5) NATO’s primary international law obligations, (6) obligations under Resolutions from the United Nations Security Council and (7) NATO’s internal law.
4. NATO’s International Refugee Obligations: Constitutive treaty
An IO as defined by the International Law Commission is “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality.”[37] NATO, established by the North Atlantic Treaty is thus an IO, albeit an unusually closed[38] multilateral Treaty-created organisation. The North Atlantic Treaty is the constitutive treaty, which is described as a portal to the internal, institutional dimension of an organisation.[39] The extent of an organisation’s rights and obligations will depend on ‘its purposes and functions as specified or implied in its constituent documents and developed in practice’.[40] Therefore, analysis of the NAT itself is the beginning point to consider NATO’s international refugee obligations.
The theoretical underpinnings of the founding members of NATO was to establish an organisation to promote freedom amongst its members through collective security, particularly against the Soviet Union,[41] famously ‘Keep the Russians out, the Americans in, and the Germans down’.[42] It was not intended to be a humanitarian organisation. Indeed, at the time, the United Nation High Commissioner for Refugees was the intended vehicle for such matters.[43] NATO could, under Article 9 of its constitution set up subsidiary bodies to deal with related matters, but it has not done so.
Within the short 14 Article Charter, reference to ‘refugee’, ‘migration’, ‘human rights’ or ‘humanitarian’ is not made. Much of the Article is famously premised around its Article 5 collective self-defence obligations. Whilst it is well known that Article 5 NAT is the cornerstone of NATO’s constitutive document, I suggest that much else highlights NATO’s goals, and the language employed in the Treaty leaves plenty of scope for applying the spirit of human rights and refugee law to NATO;
The Parties to this Treaty reaffirm their 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.
They are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law. They seek to promote stability and well-being in the North Atlantic area.
They are resolved to unite their efforts for collective defence and for the preservation of peace and security.
Preamble to the North Atlantic Treaty 1949
The Parties will contribute toward the further development of peaceful and friendly international relations by strengthening their free institutions, by bringing about a better understanding of the principles upon which these institutions are founded, and by promoting conditions of stability and well-being.
Article 2 North Atlantic Treaty 1949
The preamble makes reference to the UN Charter. This is important as the UN Charter laid the foundations for international refugee law, establishing the UNHCR.[44] NATO later justifies its crisis-response operations by reference to the UN Charter in the Washington Treaty.[45] Crisis-response operations are almost always certain to include reference to consideration of refugees, as was the case with the very first crisis-response operation in Bosnia and Herzegovina with the NATO-led Implementation Force (IFOR) and its successor, the NATO-led Stabilisation Force (SFOR).[46] The purpose of crisis-response operations are enabling the conditions of stability and well-being, as referred to in Article 2 above.
The source of UN Charter obligations then can be found in the Washington Treaty. Whether NATO is bound by UN Charter obligations directly to the UN Charter or through norms which are of a customary nature, will be referred to later in this paper in section 5.2.
The fundamental point here is that NATO, reaffirming the purposes and principles of the UN Charter, could be said to be bound by the UNHCR’s Convention Relating to the Status of Refugees, the Protocol and UN Human Rights instruments that play a large and visible role in international refugee law.[47] NATO may also be bound by other bodies of the UN, including Security Council Resolutions, as discussed in section six. This is reinforced by the fact that other IOs constitutions, such as the WTO, IMF and the World Bank do not make reference to the UN Charter, but the European Union’s Maastricht Treaty does, as does the WHO constitution, both of which also take a step further in declaring their obligations to respect human rights. This makes sense considering their area of competences. Taking a legal positivism approach, it seems clear NATO’s constitutive document demonstrates it is not closed to humanitarian and human rights principles of UN practice, and because of its area of competence, security, I argue it must give regard to international refugee law.
Both the Washington Treaty and the United Nations Charter was signed over 70 years ago. For NATO to better perform its functions, NATO itself must change and adapt to the changing international environment. There are different legal techniques that make this possible, many more than only the formal amendment of treaties: implied powers, the notions of practice of the organization and “established practice of the organization,” various methods of interpretation, the “presumption of legality” mentioned by the International Court of Justice in its 1962 Certain Expenses Advisory Opinion. These are internal practices that we will return to in section seven, along with NATO SOFA’s and MOU’s. All of which create obligations that can be described as internal law. In practice, these internal processes can appear unclear and hard to access. Despite that NATO’s constitution does not expressly provide for or mention the legal ability to contract on the international field, the primary and most obvious way to hold NATO to account is to look to its international law obligations.
5. NATO’s International Refugee Obligations: International law
Treaties and custom represent the primary mechanisms for the creation of legal norms. This is confirmed in Article 38(1) of the Statute of the ICJ.
5.1 NATO’s International Refugee Obligations: Conventional
The international refugee law architecture includes most importantly the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. It also includes corresponding regional and national instruments, as well as the various levels of jurisprudence and soft law that reflect, elaborate, and at times expand on this regime. To these we should add other human rights instruments and constitutional constraints. Refugee law is one of three complementary bodies of law that share a common goal, the protection of lives, health and dignity of persons. The ICRC calls this the Three Pillars.[48]
Articles 6 and 2 of the VCLT-IO, mirroring its VLCT counterpart articles, confirms that NATO, as an IO, can ratify or accede to treaties, similar to the freedom to contract to that possessed by a State. It is important to note three things about the VCLT-IO; Firstly, the VCLT-IO is still not in force due to lack of ratification (though it is currently only 3 States short of the 35 needed from becoming effective). Secondly, NATO itself has not issued any communiques regarding its intent to accede to the VLCT-IO (despite 12 other IO’s that have issued formal confirmations of the convention). Thirdly, of the 30 NATO allies, only half[49] have ratified the VCLT-IO, with the US yet to ratify after signature. Additionally, of the 30 NATO allies, six[50] allies have not ratified the VCLT, and the US is yet to ratify after signature. What this means is that NATO does not have a consensus in regards to its Treaty obligations. This is diametrically opposed to NATO’s decision by consensus process.[51]
An argument is often made that NATO could be transitively bound by its member States Treaty obligations but this is unworkable because of the IO’s own legal personality, member States differing treaty obligations, VCLT conflicts,[52] and as illustrated by France’s claim in the 1999 NATO bombing campaign in the former Yugoslavia provisional measures case, negated by the fact that it should be straight-forward to identify conduct that is attributable to a member State[53] through the secondary law of international responsibility.
Both the contemporary international legal environment and NATO’s current legal posture seems to indicate the implausibility of NATO acceding to the 1951 Refugee Convention or its Protocol, or any international Treaty. Indeed, the 1951 Refugee Convention as well as other fundamental inalienable human rights treaties, such as International Covenant on Civil and Political Rights[54] and the International Covenant on Economic, Social and Cultural Rights,[55] permit accession only by States. The Protocol, wider in scope permits ‘any of the specialized agencies or to which an invitation to accede may have been addressed by the General Assembly of the United Nations’.[56] This does not capture NATO, but does indicate a progressive development in the ratione personae of conventional law. Whilst this may be a technicality that can be amended, as was demonstrated with the EU acceding to the European Convention on Human Rights in 2010, in practice IO’s have not shown readiness to find the ways to accede to IHL or IHRL conventions. Even if it would be possible, NATO has not shown any preparedness to enter in any IHL or IHRL Treaty.[57] At this point, it seems that RMFOR and AFOR, attributed to NATO, cannot and will not be bound by International conventional Refugee law.
As mentioned above, NATO’s constitution does not expressly provide for or mention the legal ability to contract on the international field. However, through the implied powers doctrine, as discussed in section seven, it will be considered whether NATO can by implication contract on the international field.
How to bind NATO to International Law?
To capture NATO’s legal obligations the key question to ask is: When and why should obligations that were created by states and for States also bind NATO? Daugirdas suggests we must begin with recognising NATO’s relationship to its member States in the international legal system; ascertaining whether NATO has a vertical “vehicle” relationship or a horizontal “peer” relationship, or something less dichotomous and somewhere in the middle.
The vehicle perspective may seem especially appropriate for an IO like NATO, for example, in light of its limited membership and the rule that its 30 member states must reach consensus before making important decisions. Indeed, in the International Law Commission’s preparatory work for what became the Draft Articles on the Responsibility of International Organizations (ARIO) NATO itself added the following remarks;
NATO would like to express a general concern that the draft articles and associated commentary do not always appear fully to contemplate the specific situation of organizations in which, owing to the nature of the activity in which it is engaged or other factors, the member States retain virtually all decision-making authority and participate on a daily basis in the governance and functioning of the organization.[58]
NATO goes on to elaborate the structure of the organisation, its decision-making procedures and its practices with respect to claims.
Daugirdas recognises that if IOs are conceived as vehicles through which their member States operate, the fear is that States might exploit IOs to evade their international obligations. RMFOR and AFOR are potentially obvious examples of this. RMFOR could be utilised by Turkey, Greece and Bulgaria to circumvent any human rights obligations they may have towards the border crossing refugees, whilst AFOR is an attempt by almost all member States to circumvent the principle of non-refoulement.
International law has attempted to address this is in the law of international responsibility. This is through Article 61 ARIO, whereby a State that causes the organisation to commit an act that, if committed by the State, would have constituted a breach of the obligation. This is called circumvention and the State will be held responsible. More recently, the international law of responsibility is developing to hold two actors responsible through the principles of shared responsibility.[59] The law of international responsibility is described as the secondary international law, and is not the focus of this paper.
5.2 NATO’s International Refugee Obligations: Customary International Law
Another solution to hold RMFOR and AFOR accountable is to impose certain international obligations directly on NATO. This is important because although scholars and the ILC have both cited the risk of circumvention to explain why certain international obligations bind IOs, they do not necessarily specify or agree about which obligations might bind IOs.
It is accepted that some norms are peremptory norms and therefore non-derogable, and that customary international law binds IOs as a default matter.[60] Among many, Bhuiyan asserts that non-refoulement is close to achieving the status of a jus cogens norm which is supported by State and conventional practice.[61] This means that NATO, acting through AFOR, would be in breach of Article 33 of the Refugee Convention by returning refugees to an unsafe place.
There are other breaches of jus cogens norms that are identified in the RMFOR scenario; crimes against humanity and prohibition against slavery and the slave trade. Though the conduct is not by NATO. However, responsibility may be attributed to NATO through the principles of shared responsibility.
Applying principles of customary international law to IO’s proves to be more complex. Customary international law applies by default. It is worth recalling the ICJ’s nuanced distinction between State legal personality and IO legal personality, when it commented that the United Nation’s legal personality is “not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same of those of a State.”[62] When the ICJ states that IOs are “governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them”.[63] As already examined, NATO was not established to be a refugee organisation. The argument then follows that it is not unreasonable to question whether NATO, according to the ICJ, should be burdened with refugee or related human rights customary obligations. Daugirdas puts it more generally: Perhaps IOs’ international law obligations should parallel their limited authorities.[64] Thus, a small slice of customary international law would bind NATO; a different (but also small) slice of customary international law would bind the UNHCR.
However, as already identified when reviewing NATO’s constitutive charter, the authorities enumerated in an IO’s charter is not an especially good way to understand the scope of the IO’s activities,[65] as Klabbers calls it, the ‘Frankenstein problem’.[66] Daugirdas suggests this is for two reasons.[67] The first is the implied powers doctrine. This will be substantively returned to in section seven, but it is worth mentioning here. IOs have not only the powers their charters confer explicitly, but also “those powers which, though not expressly provided in the Charter, are conferred upon [them] by necessary implication as being essential to the performance of [their] duties.”[68] Separately, IO practice informs the interpretation of IO charters,[69] and consideration of practice tends to expand the range of permissible IO activity.[70] The possibility that IO activities might expand—including in ways that their member states do not necessarily foresee—suggests that IOs’ international law obligations must extend at least somewhat beyond those that touch on the powers their charters formally confer.[71] This means that if NATO, in partaking in activities beyond its original remit,[72] such as RMFOR and AFOR, or even current operations such as the training missions in Afghanistan and Iraq, supporting the African Union and the ongoing commitments in Kosovo should be bound by relevant laws that may affect that situation, including refugee and related human rights law. Equally, in NATO’s support for the COVID-19 relief, NATO is now entering into WHO territory, so should be equally bound by relevant health law.
The second reason, is that although principle of speciality does mean particular IO’s might be especially unlikely to contravene some international law rules, it does not render potential violations of apparently non-applicable general international law impossible. This is particularly true of NATO today, where it is branching out into a plethora of areas. Indeed, in a 2019 ‘NATO Engages’ conference NATO continues to pivot its policy towards humanitarian concerns by putting Human Security at the front and centre of its ‘Innovating the Alliance’ campaign.[73]
To take stock, it appears at this point in the analysis that NATO will not be conventionally bound by international refugee law, it will be bound by jus cogens rules (this will be applicable to AFOR should non-refoulement take designation as a jus cogens rule) and it will be bound, by the above legal reasoning, to customary international law principles.
The next hurdle is determining whether international refugee and related human rights principles of customary international law apply. Some scholars argue that obligations to protect fundamental human rights are binding as general principles,[74] whilst some have added that certain non-jus cogens rules are likewise non-derogable.
Customary International Law: The Three Pillars
Refugee law is one of three complementary bodies of law that share a common goal, the protection of lives, health and dignity of persons. The ICRC calls this the Three Pillars.[75] Humanitarian law provides protection to combatants and non-combatants during conflict, and human rights perpetually. Both give protection to refugees. Humanitarian law obligations will apply to NATO when NATO is considered a party to a conflict. This is important because the operating context will influence NATO’s refugee obligations.
By policy NATO declares it will comply with both humanitarian law and international human rights law.[76] But it still avoids taking a position about whether it is bound by those rules, merely expressing ‘respect’ for IHL principles.[77] This avoidance strategy is common among IOs; they often comply with international law norms without confirming that they have the obligation to do so.[78] In 1999, the United Nations issued regulations declaring peacekeepers must comply with IHL.[79] NATO has not done this.
Nauta, using three NATO case studies (Operations in the Balkans, ISAF in Afghanistan and Operation Unified Protector in Libya) concludes that NATO will become bound by IHL when it meets the requisite factual elements making NATO a party to a conflict.
This means that when IHL applies, NATO will have customary refugee obligations under IHL. It is highly unlikely that AFOR will be considered a party to a conflict, and on the facts provided it is unlikely that RMFOR will be considered party to a conflict, so whilst NATO will respect IHL rules in peacetime, they not do bind outside of a conflict classification. The ICRC has identified forms of IHL protection that NATO would be required to give to refugees, by policy during peacetime, and legally during conflict.[80]
Customary IHRL and IRL are other sources of binding international obligation(s) on NATO. However, IHRL is only invocable before a court when an international organisation exercises jurisdiction. From the outset it may look impossible for NATO to exercise jurisdiction, as this is a feature particularly pertinent to States.[81] De Boer identifies an expansive and progressive approach is now being taken to jurisdictional interpretation.[82] I argue that this developing area of law, in combination with the fact that NATO is, in limited circumstances able to exercise jurisdiction over individuals or over a territory, as demonstrated by KFOR under the UNMiK interim administration and situations of detainment[83] allows the application of IHRL and IRL. Both RMFOR and AFOR will potentially be exercising jurisdiction over the refugees in the given scenarios, and thus will be bound by IHRL and IRL. If jurisdiction is a boundary to the invocation before a court, the secondary rules of shared responsibility will apply, therefore further enforcing the applicability of IHRL and IRL on NATO.
This paper has so far suggested that NATO will be bound to the UN Charter and the UN’s subsequent systematic practice, including the UNHCR’s Refugee Convention, through NATO’s constitutive document reference to the UN Charter. Despite the restrictive contemporary conventional architecture, NATO will be bound by the developing jus cogens rule of non-refoulement, and customary international law. It has been argued that NATO has developed into a multi-faceted organisation that must respect the ICRC’s ‘Three Pillars’. Reference has often been made to the development of the secondary law of responsibility and how NATO may share responsibility for breaches of IRL.
6. NATO’s International Refugee Obligations: UN Security Council Resolutions.
NATO’s charter expressly recalls the primary responsibility of the Security Council for the maintenance of international peace and security.[84] Article 25 of the UN Charter indicates the binding nature of UN Security Council resolutions. Subsequent ICJ[85] and scholarly[86] customary practice confirms the binding nature of the resolutions. Depending on their content, Security Council Resolutions can provide another source of IRL obligations to NATO.
Nauta asserts that NATO is transitively or indirectly bound to the UN Charter by its member States obligations.[87] This paper has suggested this is wrong for two reasons. As discussed at 5.1, being transitively bound is unworkable, though it is conceded that an argument could reasonably be made that due to the exceptional universal membership of the United Nations, it could have an indirect binding effect on NATO. Secondly, Nauta does not recognise NATO’s own reference to the UN Charter in the Washington Treaty as creating legal obligations. This is perhaps for ulterior reasons; Nauta is a current legal advisor to NATO. By not confirming NATO’s UN Charter obligations under the Washington Treaty the tacit implication is that NATO’s legal basis to use force in Kosovo, without a Security Council mandate permitting it to do so is a breach of the UN Charter through its own Washington Treaty, and through customary international law.
Whilst the closest the UNSC has come to explicitly linking NATO with refugee obligations is encouraging NATO’s efforts to stabilise the Afghan government, whose aims include the repatriation, reintegration and support to refugees and displaced peoples,[88] the UNSC has yet to explicitly oblige NATO to respect IRL. However, in later UNSC resolution 2344:
In order to improve the respect for the rule of law and human rights therein, emphasizes the importance of ensuring access for relevant organizations, as applicable, to all prisons and places of detention in Afghanistan, and calls for full respect for relevant international law including humanitarian law and human rights law.[89]
This is directed at the Afghan government, but it is not unreasonable that NATO as an invited force, ‘providing training, advice and assistance to Afghan security forces and institutions’[90] would also have to respect the principles in the Resolution.
To conclude, by its constitutive document’s obligations to the UN Charter, NATO is bound to acts of the UN, including Resolutions of its primary organ the Security Council. Whilst Resolutions may not explicitly state obligations for actors including to NATO be bound by IRL or in the spirit of the Three Pillars it would seem totally unreasonable to imply the lack of prescription legalises the violations thereof.
7. NATO’s International Refugee Obligations: Internal law
The internal coherence of an organization, as reflected in its public statements and actions, goes a long way to assure its influence over the often tumultuous elements of the international human rights landscape.[91]
In response to how modern conflict is waged and a wider disregard for international humanitarian and human rights, and refugee law by perpetrators of violence, NATO approved the “Military Concept for the Protection of Civilians” in 2018.[92]
Rules and principles that fall out of The Military Concept for the Protection of Civilians is considered lex specialis. The lex specialis is an elaboration, updating, or a technical specification of the general international law norm.[93] Even when states do intend for lex specialis to diverge from otherwise applicable general international law, general international law norms persist in the background.[94] The lex specialis principle provides that when both a general standard and a more specific rule govern the same subject matter, the specific rule should take precedence over the general rule.[95]
The relationship between member states and the organization should be analysed in the light of the internal legal system of each organization, as created by the constituent instrument and developed further by the organization’s internal rules and practice. It has been submitted that acting through the doctrine of implied powers, NATO in exercising the powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.[96] IOs, like states, are bound by general international law—but only as a default matter. Like states, IOs may contract around such default rules, using implied powers discussed earlier to create lex specialis internal law. These rules represent lex specialis and the relationship between the member State and the international organization should not be subject to rules of general international law for the issues regulated by the internal rules.
What this means in practice is that lex specialis is not considered a devious and troubling technique for states to evade obligations under general international law. To the contrary, Lex specialis offers states a way to achieve more tailored—and more effective—regulation.[97] NATO in its published internal documents has ultimately remained quiet on its IRL obligations, indeed the term “international refugee law” shows no hits on its website, and it does not feature in its 1951 SOFA. The remarks already made in regarding its continued commitment to apply principles of IHL and IHRL, I suggest could be applied to the Three Pillars, capturing IRL. A unique fact about IO’s is that they are not a sovereign State, so the principle of non-refoulement would not directly apply. I have argued that NATO will be subject to the rules when it is considered exercising control of people or territory, which is the case with RMFOR and AFOR.
8. Conclusion
This article has analysed NATO’s IRL obligations through the following sources: The constitutive document, conventional law, customary law, UN Security Council Resolutions and NATO’s own internal law.
It has made the assertion that NATO will be bound to the UN Charter and the UN’s subsequent systematic practice, including the UNHCR’s Refugee Convention, through NATO’s constitutive document reference to the UN Charter. Despite the restrictive contemporary conventional architecture, NATO will be bound by the developing jus cogens rule of non-refoulement, and customary international law. It has been argued that NATO has developed into a multi-faceted organisation that it will be bound by international law generally and specifically by what the ICRC calls the ‘Three Pillars’. Reference has often been made to the development of the secondary law of responsibility and how NATO may share responsibility for breaches of IRL. NATO will be bound by UN Security Council Resolutions, and whilst they may not explicitly bind actors to IRL, it is asserted here it would be totally unreasonable for principles not to apply. NATO can through internal law and lex specialis create specific rules clarifying or elaborating principles of international law for its members or those agreeing to SOFA’s or MOU’s, but NATO has not done this.
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Brolmann ‘Typologies and the Essential Juridical Character of Treaties’ in Bowman ‘Conceptual and Contextual Perspectives on the Modern Law of Treates’ [2020] pg 87
Kristina Daugirdas, Reputation and the Responsibility of International Organizations, [2014]
Kristina Daugirdas ‘How and Why International Law Binds International Organizations’ in Harvard International Law Journals 57
Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ [2006]
Regensburg, ‘Refugee Law Reconsidered: Reconciling Humanitarian Objectives of Western Europe and the United States’ [1996]
Tom De Boer ‘Closing Legal Black Holes: The Role of Extraterritorial Jurisdiction in Refugee Rights Protection’ [2015]
Books
David Nauta ‘The International Responsibility of NATO and Its Personnel during Military Operations’ [2018]
Bruno Simma & Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ [1989]
J Bhuiyan ‘Protection of Refugees Through the Principle of Non-Refoulment’ in An Introduction to Refugee Law [2013]
Jan Klabbers, Introduction to International Institutional Law [2009]
Jose Alvarez, ‘International Organizations as Law-makers’ [2005]
International Institute for Strategic Studies, ‘Chapter Four: Europe’ in The Military Balance [2019]
S. Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, [1989]
Wong, ‘Internal Affairs: How the structure of NGO’s transforms Human Rights’ [2012]
Websites
Amnesty International ‘Greece 2019’ in Country Profile [2020] https://www.amnesty.org/en/countries/europe-and-central-asia/greece/report-greece/
Arab News ‘UN decries dangerous Mediterranean Sea migrant pushbacks’ [2020] https://www.arabnews.com/node/1671726/world
BBC News ‘Turkish police move to stop Greece pushing migrants back’ [2020] https://www.bbc.com/news/world-europe-51752686
EJIL: Talk! ‘Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular’ [2017] https://www.ejiltalk.org/legal-bindingness-of-security-council-resolutions-generally-and-resolution-2334-on-the-israeli-settlements-in-particular/
Human Rights Watch ‘Poland: Events of 2019’ in Country Chapters [2020] <https://www.hrw.org/world-report/2020/country-chapters/poland>
ICRC ‘Humanitarian Law, Human Rights and Refugee Law – Three Pillars’ [2005] https://www.icrc.org/en/doc/resources/documents/statement/6t7g86.htm
Jorge Vinuales ‘Law of State Responsibility’ in UN Audiovisual Library of International Law [2019]
https://legal.un.org/avl/MiniSeries/Vinuales_MS.html
NATO’s website (various)
Nikolaos Sitaropoulos, ‘Ill-Treatment of Migrants in Greek Law Enforcement – Are the Strasbourg Court Judgments the Tip of the Iceberg’ [2017] http://eumigrationlawblog.eu/ill-treatment-of-migrants-in-greek-law-enforcement-are-the-strasbourg-court-judgments-the-tip-of-the-iceberg/
The Guardian, ‘European court under fire for backing Spain’s express deportations’ [2020] https://www.theguardian.com/world/2020/feb/13/european-court-under-fire-backing-spain-express-deportations
The Independent, ‘Italy sued over migrant ‘push back’ deal with Libya after 20 migrants drown in Mediterranean’ [2018] https://www.independent.co.uk/news/world/europe/italy-libya-migrant-refugee-push-back-deal-mediterranean-a8342056.html
U.N. Secretary-General, ‘Bulletin on the Observance by United Nations Forces of International Humanitarian Law’ U.N. Doc. ST/SGB/1999/13 [1999]
UNHCR ‘UNCHR: Staying and delivering for refugees amid COVID-19 crisis’ [2020] https://www.unhcr.org/news/press/2020/3/5e8202a64/unhcr-staying-delivering-refugees-amid-covid-19-crisis.html
UNHCR, ‘History of UNHCR’ https://www.unhcr.org/history-of-unhcr.html
United Nations General Assembly ‘Comments and observations received from international organisations’ in Responsibility of International Organisations [2011] A/CN/.4/637
Podcasts
Elisabeth Braw, Senior research fellow, RUSI’s Modern Deterrence Project on BBC, ‘Is NATO Obsolete?’ (2019) in The Inquiry 19 December 2019 <https://www.bbc.co.uk/programmes/w3csyth3>. Accessed 20/04/2020
[1] Smits, ‘What is Legal Doctrine? On the Aims and Methods of Legal-Dogmatic Research’ [2015]
[2] Elisabeth Braw, Senior research fellow, RUSI’s Modern Deterrence Project on BBC, ‘Is NATO Obsolete?’ (2019) in The Inquiry 19 December 2019 <https://www.bbc.co.uk/programmes/w3csyth3>. Accessed 20/04/2020
[3] Kristina Daugirdas ‘How and Why International Law Binds International Organizations’ in Harvard International Law Journals 57, no. 2 [2016]
[4] NATO OPEN Publications, ‘Preparing to Protect: Advice on Implementing NATO’s Protection of Civilian Policy.’ [2018]
[5] NATO, ‘NATO’s Purpose’ [2018] <https://www.nato.int/cps/en/natohq/topics_68144.htm> accessed 21/05/2020
[6] North Atlantic Treaty (1949) Preamble
[7] For example, NATO relief mission to Pakistan (11 October 2005 – 1 February 2006)
[8] For example, Operations Allied Provider (24 October – 13 December 2008), Allied Protector (24 March – 29 June 2009) and Ocean Shield (17 August 2009 – Present)
[9] Operations Deadeye (30–31 August 1995), Deliberate Force (5–14 September 1995), Joint Endeavour (IFOR, 20 December 1995–20 December 1996), Joint Guard / Joint Forge (SFOR, 20 December 1996–2 December 2004), Allied Force (24 March–20 June 1999), Allied Harbour (26 April–30 August 1999), Joint Guardian (KFOR, 12 June 1999 – present), International Security Assistance Force (ISAF, 11 August 2003 – present).
[10] NATO Training Mission – Iraq (NTM-I, 7 August 2004 – present), Operation Resolute Support (June 2014 – present)
[11] International Institute for Strategic Studies, ‘Chapter Four: Europe’ in The Military Balance [2019]
[12] Agreement on the status of the North Atlantic Treaty Organisation, National Representatives and International Staff signed in Ottawa, ‘Ottawa Agreement’ (1951) art 1(c)
[13] Once 14 agencies. NATO, ‘Organisations and Agencies’ [2020] <https://www.nato.int/cps/en/natolive/topics_66470.html> (accessed 21/05/2020)
[14][14] NATO Communications and Information Agency (NCIA) ‘What we do’ [2020] <https://www.ncia.nato.int/what-we-do.html> (accessed 26/04/2020)
[15] NATO Support and Procurement Agency (NSPA) ‘Coronavirus response: NATO Support and Procurement Agency assists Italy, Spain and Norway’ [2020] <https://www.nato.int/cps/en/natohq/news_175073.htm?selectedLocale=en> (accessed 26/05/2020)
[16] NATO Science and Technology Organisation (STO) ‘What we do’ [2018] <https://www.nato.int/cps/en/natohq/topics_88745.html> (accessed 26/05/2020)
[17] Human Rights Watch ‘Turkey: Events of 2019’ in Country Chapters [2020] <https://www.hrw.org/world-report/2020/country-chapters/turkey>
[18] Human Rights Watch ‘Hungary: Events of 2019’ in Country Chapters [2020] <https://www.hrw.org/world-report/2020/country-chapters/hungary>
[19] Human Rights Watch ‘Turkey: Events of 2019’ in Country Chapters [2020] <https://www.hrw.org/world-report/2020/country-chapters/turkey>
[20] Human Rights Watch ‘Poland: Events of 2019’ in Country Chapters [2020] <https://www.hrw.org/world-report/2020/country-chapters/poland>
[21] Amnesty International ‘Greece 2019’ in Country Profile [2020] https://www.amnesty.org/en/countries/europe-and-central-asia/greece/report-greece/
[22] The Guardian, ‘European court under fire for backing Spain’s express deportations’ [2020] https://www.theguardian.com/world/2020/feb/13/european-court-under-fire-backing-spain-express-deportations
[23] The Independent, ‘Italy sued over migrant ‘push back’ deal with Libya after 20 migrants drown in Mediterranean’ [2018] https://www.independent.co.uk/news/world/europe/italy-libya-migrant-refugee-push-back-deal-mediterranean-a8342056.html
[24] Nikolaos Sitaropoulos, ‘Ill-Treatment of Migrants in Greek Law Enforcement – Are the Strasbourg Court Judgments the Tip of the Iceberg’ [2017] http://eumigrationlawblog.eu/ill-treatment-of-migrants-in-greek-law-enforcement-are-the-strasbourg-court-judgments-the-tip-of-the-iceberg/
[25] Macau News Agency, ‘EU court rules against Hungary over migrant centres’ [2020] https://www.macaubusiness.com/eu-court-rules-against-hungary-over-migrant-centres/
[26] NBC News, ‘Bulgarian Vigilantes Patrol Turkey Border to Keep Migrants Out’ [2017] https://www.nbcnews.com/storyline/europes-border-crisis/bulgarian-vigilantes-patrol-turkey-border-keep-migrants-out-n723481
[27] BBC News ‘Turkish police move to stop Greece pushing migrants back’ [2020] https://www.bbc.com/news/world-europe-51752686
[28] UNHCR ‘UNCHR: Staying and delivering for refugees amid COVID-19 crisis’ [2020] https://www.unhcr.org/news/press/2020/3/5e8202a64/unhcr-staying-delivering-refugees-amid-covid-19-crisis.html
[29] Arab News ‘UN decries dangerous Mediterranean Sea migrant pushbacks’ [2020] https://www.arabnews.com/node/1671726/world
[30] Julie Hirschfeld Davis & Thomas Gibbons-Neff, Trump Considers Closing Southern Border to Migrants, N.Y. TIMES [2020] https://perma.cc/3UR4-SK5N
[31] N.D. and N.T v Spain ECHR 063 [2020]
[32] Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) (1949) ICJ Rep. 174.
[33] Brolmann ‘Typologies and the Essential Juridical Character of Treaties’ in Bowman ‘Conceptual and Contextual Perspectives on the Modern Law of Treaties’ [2020] pg 87
[34] Nollkaemper et al, ‘Commentary to the Principles of Shared Responsibility’ [2020]
[35] Jorge Vinuales ‘Law of State Responsibility’ in UN Audiovisual Library of International Law [2019] https://legal.un.org/avl/MiniSeries/Vinuales_MS.html
[36] Ibid 33 pg 87
[37] Article 2, Draft Articles on the Responsibility of International Organisations [2011]
[38] Ibid 33
[39] S. Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1989), pp. 246-348
[40] Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] at 180, 182.
[41] NATO, ‘Why was NATO founded?’ [2017] https://www.nato.int/wearenato/why-was-nato-founded.html
[42] New Cold War, ‘A history of NATO’ [2016] https://www.newcoldwar.org/history-nato-keep-russians-americans-germans/
[43] UNHCR, ‘History of UNHCR’ https://www.unhcr.org/history-of-unhcr.html
[44] Regensburg, ‘Refugee Law Reconsidered: Reconciling Humanitarian Objectives of Western Europe and the United States’ [1996]
[45] NATO, ‘The Alliance’s Strategic Concept’ [1999] https://www.nato.int/cps/en/natolive/official_texts_27433.htm at para 10
[46] NATO, ‘Peace support operations in Bosnia and Herzegovina’ [2019] https://www.nato.int/cps/en/natohq/topics_52122.htm
[47] Regensburg, ‘Refugee Law Reconsidered: Reconciling Humanitarian Objectives of Western Europe and the United States’ [1996]
[48] ICRC ‘Humanitarian Law, Human Rights and Refugee Law – Three Pillars’ [2005] https://www.icrc.org/en/doc/resources/documents/statement/6t7g86.htm
[49] Ratified: UK, Denmark, Estonia, Bulgaria, Greece, Spain, Germany, Netherlands, Belgium, Italy, Croatia, Hungary, Czecha, Slovakia, Albania.
[50] France, Iceland, Norway, Romania, Turkey
[51] NATO ‘The consultation process and Article 4’ [2020] https://www.nato.int/cps/en/natohq/topics_49187.htm
[52] Ibid 2 pg 354
[53] Ibid 2 pg 357
[54] Article 48 International Covenant on Civil and Political Rights 1966
[55] Article 26 International Covenant on Economic, Social and Cultural Rights 1966
[56] Article 5 Protocol Relating to the Status of Refugees 1967
[57] David Nauta ‘The International Responsibility of NATO and Its Personnel during Military Operations’ [2018] pg 120
[58] United Nations General Assembly ‘Comments and observations received from international organisations’ in Responsibility of International Organisations [2011] A/CN/.4/637
[59] Nollkaemper et al, ‘Commentary to the Principles of Shared Responsibility’ [2020]
[60] Ibid 344
[61] J Bhuiyan ‘Protection of Refugees Through the Principle of Non-Refoulment’ in An Introduction to Refugee Law [2013]
[62] U.N. Secretary-General, Bulletin on the Observance by United Nations Forces of International Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999
[63] Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, [1996] I.C.J. Rep. 226,
[64] Ibid 3 pg 366
[65] Jose Alvarez, ‘International Organizations as Law-makers’ [2005]
[66] Jan Klabbers, Introduction to International Institutional Law [2009]
[67] Ibid 3 pg 366
[68] Reparation for Injuries Advisory Opinion, [1949] ICJ at para 182
[69] IO charters are usually treaties, and the VCLT, which sets out the method for interpreting treaties, including IO charters, indicates that the subsequent practice of the parties is relevant to interpreting them. See VCLT art. 31(3)(b).
[70] Jose Alvarez, International Organizations as Law-makers [2005]
[71] Ibid 3 pg 366
[72] Jorge Vinuales ‘Law of State Responsibility’ in UN Audiovisual Library of International Law [2019] https://legal.un.org/avl/MiniSeries/Vinuales_MS.html
[73] NATO, ‘Beyond Borders: Human Security and NATO – NATO Engages London 2019’ [2019] https://www.bing.com/videos/search?q=nato+human+security&docid=608010808793040102&mid=57EC2225D5EDB445BE6257EC2225D5EDB445BE62&view=detail&FORM=VIRE
[74] Bruno Simma & Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ [1989]
[75] Ibid 48
[76] NATO ‘NATO Policy for the Protection of Civilians’ https://www.nato.int/cps/en/natohq/official_texts_133945.htm?selectedLocale=en [2016]
[77] NATO ‘NATO Defence Ministers to address key issues for the Alliance’ [2019] https://www.nato.int/cps/en/natohq/news_169941.htm?selectedLocale=en
[78] Kristina Daugirdas, Reputation and the Responsibility of International Organizations, [2014]
[79] U.N. Secretary-General, ‘Bulletin on the Observance by United Nations Forces of International Humanitarian Law’ U.N. Doc. ST/SGB/1999/13 [1999]
[80] Ibid 48
[81] Ibid 57 pg 150
[82] Tom De Boer ‘Closing Legal Black Holes: The Role of Extraterritorial Jurisdiction in Refugee Rights Protection’ [2015]
[83] For example, NATO exercised jurisdiction in Afghanistan in support of the Afghan government, when it detained insurgents for a limited period of time.
[84] Article 7, North Atlantic Treaty [1949]
[85] Namibia, ICJ Advisory Opinion, 1971 ICJ Rep 16
[86] EJIL: Talk! ‘Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular’ [2017] https://www.ejiltalk.org/legal-bindingness-of-security-council-resolutions-generally-and-resolution-2334-on-the-israeli-settlements-in-particular/
[87] Ibid 57 pg 118
[88] United Nations Security Council ‘Resolution 2274: The situation in Afghanistan’ [2016]
[89] United Nations Security Council ‘Resolution 2334: The situation in Afghanistan’ [2016]
[90] NATO ‘Operations and missions: past and present’ [2019] https://www.nato.int/cps/en/natolive/topics_52060.htm
[91] Wong, ‘Internal Affairs: How the structure of NGO’s transforms Human Rights’ [2012]
[92] NATO OPEN Publications, Preparing to Protect: Advice on Implementing NATO’s Protection of Civilian Policy. 2018
[93] Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ [2006]
[94] Ibid 3 pg 378
[95] North Sea Continental Shelf, Judgment, [1969] I.C.J. Rep. 3, 43
[96] Reparations, ICJ [1949]
[97] Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ [2006]
[97] Ibid 3 pg 378
hetGalenstraat Legal 