Defence CommitteeWritten evidence from Patrick M Lavender, Former United Nations FAO Legal Adviser

Summary

The use of North Atlantic Treaty Organization (NATO) to implement United Nations’ Resolution 1973 (2011), adopted by the Security Council at its 6498th meeting, is ultra vires the North Atlantic Treaty Organization, ergo, neither the participation of the United Kingdom’s Armed Forces in NATO operations in Libya has been properly approved by Parliament, nor has the financing of those operations.

Whilst prima facie a matter for consideration by the Attorney General’s Office and the Foreign and Commonwealth Office the implications necessarily require the Defence Committee to be appraised of the ramifications both as to present and future operations.

1. The North Atlantic Treaty was signed on 4 April 1949 and provides for a system of collective defence by which NATO members agree to a collective response to an armed attack upon any one or more member(s).

(a)Article 5 provides:

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.

(b)Article 6 (1) provides:

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France (2), 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

on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

2. NATO and its Protocols only provide for the use of armed force by NATO members in the exercise of the right of self-defence where a NATO member(s) has been the subject of an armed attack within the North Atlantic area.

3. Libya is not a member of NATO, it had not made an armed attacked upon any NATO member prior to the commencement of NATO’s operations in Libya, nor is it within the North Atlantic area.

4. The implementation by NATO of UN Resolution 1973 (2011) adopted by the Security Council at its 6498th meeting is ultra vires the North Atlantic Treaty Organization and the participation of the United Kingdom’s Armed Forces in operations in Libya under the auspices of the North Atlantic Treaty Organization has consequently not been properly approved by Parliament nor has the financing of those operations.

The inappropriate use of the United Kingdom’s defence resources has numerous significant implications not only in terms of limiting the use of those resources for other operations but also in improperly exposing the United Kingdom’s service personnel to death and injury.

9 September 2011

Prepared 7th February 2012