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Substitute for the United Nations? Extending the Frontiers of the North Atlantic Treaty Organisation and Implications for African Unity

Document Cited authorities 1 Cited in Related
Vincent
AuthorYemi Oke
Pages120-141
Published date01 February 2013
Date01 February 2013
DOI10.3366/ajicl.2013.0054
INTRODUCTION

The African notion of humanitarian meddling in conflict resolution and intervention for purposes of crisis management emphasises legitimacy of the process and outcome, to the extent that: ‘[A] good judge is not one who imposes a decision on opposing parties, but one who leads the opposing camps to accept and recognize the legitimacy of the verdict.’1

Banco Mundial, ‘World Bank Calls for Indigenous Knowledge to Foster Development’, available at http://www.noticias.info?Asp/aspPrinting.asp?NOT=40063 (accessed 16 November 2005), p. 2 (my emphasis). See Y. Oke, ‘Intergenerational Sustainability and Traditional Knowledge in Africa: Natural Resource Management Perspective’, in C. L. Soskolne (ed.), Sustaining Life on Earth: Environmental and Human Health Through Global Governance, Lexington Books (2007), pp. 227–39 at 235.

Amidst the increasing threat to global security, the North Atlantic Treaty Organization (NATO) has become the most powerful international body, though, arguably next to the United Nations (UN) in terms of global prominence, spread and power. The institution with global mandate is the UN, with power

To maintain international peace and security, and to that end take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.2

See Article 1, Charter of the United Nations, 26 June 1945, Can. T.S., 1945, No. 7 [the UN Charter].

NATO emerged as a transnational defence and security organisation between North America and Europe3

J. Baylis, The Diplomacy of Pragmatism and the Formation of NATO, 1942–1949, Kent State University Press (1993).

in response to the growing threat of the Soviet Union, particularly in Europe, after World War II, among others. At the core of NATO's mutual defence commitment is article 5 of the Washington Treaty,4

See Washington Treaty of The North Atlantic Treaty Organization, 4 April 1949, 34 UNTS 243.

 which states that ‘an attack on one or more members of the alliance will be considered an attack on all’. Headquartered in Brussels, NATO is an intergovernmental organisation,5

A. Brogi, A Question of Self-Esteem: The United States and the Cold War Choices in France and Italy 1944–1958, Praeger (2000).

 but fast becoming a global institution beyond the confines of North America and Europe. This article queries the extending frontiers of NATO. It asks if the global order is about to be changed or altered to replace, or at least substitute, NATO as the security arm of the UN. It explores the likely implications of the unqualified, unrestricted, expansionist agenda of NATO bearing in mind African unity and ability to settle disputes in line with the traditional principle that African problems are best solved the African way. It concludes that the workability of NATO's extension to Africa lies in its ability to repackage it by mainstreaming African specificities, and by accommodating interested parties and institutions in the region OLD V. NEW INTERNATIONAL ORDER

The global order has backed down from unqualified acceptance of war as a means of political engagement, by substituting the ‘legitimate use of force’ for the language of ‘war’.6

For the relation of war to the international system as illustrated by W. E. Hall in his treatise, see R. Brierly, ‘International Law and Resort to Armed Force’, 4 Cambridge Law Journal (1932): 308; See also D. J. Harris, Cases and Materials on International Law, 6th edn, Sweet and Maxwell (2004), p. 886.

The phrase ‘legitimate use of force’ is nebulous, to the extent that the legal order is not yet specific as to when the use of force becomes ‘illegitimate’.7

Ibid.

 The use of force by NATO becomes legitimised in view of article 5 of its Treaty,8

NATO Treaty, supra note 4.

 even where that legitimacy is perceived in the negative.9

See Brierly, ‘International Law and Resort to Armed Force’, supra note 6.

Generally, all members of the UN shall refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations.10

Article 2(4) of the UN Charter, supra note 2.

In line with the meaning of the words ‘territorial integrity’ and ‘political independence’, the UN Security Council may investigate any dispute or situation that may endanger international peace and security, and may recommend appropriate procedure or methods of adjustment of disputes, particularly those listed in article 33.11

Ibid., article 33.

 It provides that:

The parties to any dispute, the continuance of which is likely to endanger maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangement, or other peaceful means of their own choice.

The adoption of the UN Charter constituted a definitive moment in the emergence of an international community.12

See B. Fassbender, ‘The United Nations Charter as Constitution of International Community’, 36 Columbia Journal of Transnational Law (1998): 573; C. Tomuschat, ‘Obligations Arising for State Without or Against their Will’, Recueil des cours de L'Académie de Droit International de La Haye (1993), IV, p. 235; T. Franck, ‘The Emerging Right to Democratic Governance’, 86 American Journal of International Law (1992): 46; and E. de Wet, ‘The International Constitutional Order’, 55:1 International and Comparative Law Quarterly (2006): 51–76 at 55.

Its universal state membership has a dual role of sectoral constitutional regime for peace and security, and this is central to the overall objective of the UN, as its acts as the key connecting factor that links the different state communities to the international community. Thus, the UN Charter has had a significant impact on the membership of the international community through its linking function, making global integration possible both horizontally and vertically across continents and regions. It is particularly instructive to note that the UN Charter's normative framework has been largely instrumental in bringing about a verticalisation in the relations of member states, and has been the catalyst for the development of a legal order based on hierarchically superior values, as opposed to those exclusively based on equilibrium or value sovereigns,13

De Wet, ‘The International Constitutional Order’, supra note 12, p. 59. See also M. Byers, ‘Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules’, 66 Nordic Journal of International Law (1997): 212.

 as between the UN and other regional institutions like NATO.

Regional integration under NATO and similar regional organisations, for the purpose of sustaining global peace and security, is part of the world order, provided that the UN Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.14

Article 54, the UN Charter, supra note 2.

The evolution of the modern State and consequent development of an international order, founded upon a growing number of independent and sovereign states, as well as territorial limits invariably gave rise to the need for structured global cooperation in sustaining the global order.15

See C. F. Amerasinghe, Principles of the Institutional Law of International Organizations, Cambridge University Press (1996).

 For example, the French wars of Louis XIV were brought to an end through the mechanism of international cooperation and agreement reached for that purpose by interested global actors. The nineteenth century also witnessed a considerable growth in conferences, which constituted an important prelude to the establishment of new international institutions and associations like NATO;16

H. G. Schermers and N. M. Blokker, International Institutional Law, 3rd edn, Martinus Nijhoff (1995). See also M. N. Shaw, International Law, 4th edn, Cambridge University Press (2002), p. 888.

 however, the agreed frameworks of the various organisations and institutions necessarily provide avenues for exercising varying powers depending on their founding objectives.17

D. W. Bowett, The Law of International Institutions, 4th edn, London Press (1982).

The later part of the nineteenth century was especially marked by the proliferation of such public international institutions and unions.18

Shaw, International Law, supra note 16, p. 1.

The decolonisation process resulted in the independence of scores of states, most of which were eager to play a non-aligned role between East and West, and to this end regional organisations developed to reflect common interests in a world of superpowers. These include the Arab League, the Organization of American States, and the Organisation of African Unity (now the African Union) among others. The regionalisation of Europe became most prominently constructive and was more of a political move. The establishment of the European Economic Community was mainly intended as basis for strengthening the European region through economic and political integration.19

J. M. Goldgeier, Not Whether But When: The U.S. Decision to Enlarge NATO, Brookings Institution Press (1999).

Within the realities of a multiplicity of regional and sub-regional institutions, the United Nations remains an important institution in the international legal order despite the many challenges and limitations faced by its principal organs. For instance, it is often insinuated that the General Assembly has only limited powers and cannot make the Security...

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