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Excerpts from the JRL E-Mail Community :: Founded and Edited by David Johnson
#35 - JRL 2007-72 - JRL Home
From: Ira Straus (IRASTRAUS@aol.com)
Date: Sun, 25 Mar 2007
Subject: Re: JRL #70- Milanovic/ Straus/ Milanovic/ Straus/ BBC

Thanks to Branco for a well-written response as always, altho I have to say that I am disappointed by some pretty obvious misinterpretations. I wrote quite explicitly that, in addition to being subject to its own (very few) Treaty restrictions, NATO and its member states are subject to the UN Charter and all other international law. The NATO Treaty itself specifies this. And I mentioned that NATO expended no small amount of angst on the question of whether its intervention on Kosovo conformed to international law. This does not contradict the fact that the specific provisions of NATO's Treaty itself are permissive rather than restrictive or exclusive, and do not prevent its members from unanimously deciding things outside of its Treaty's explicit mandates, nor restrict its members from freely deciding things through NATO's collective procedures that go beyond past NATO Treaty mandates. They are simply two separate points. Point 1 - NATO's Treaty mandates do not restrict NATO from getting into other mandates. Point 2 - all NATO mandates, whether specified or not in the NATO Treaty, are subject to broader international law. How can Branco possibly draw from these statements the conclusion that, if NATO's charter provisions are mostly permissive rather than restrictive, then NATO can do anything it wants without regard to other international law? And thence he goes on to deduce that international law means nothing and no one has any legal protection for anything (here he pretty much repeats Putin's language at Munich. Pretty lurid language, that). I really do not see how such a clever person could make such an obvious misinterpretation, or such a failure to understand what has been clearly stated, and in the process reach such wildly unfounded conclusions. It seems really an instructive case to me of how my words, or anyone's, if strung together out of context, can be used to prove just about anything.

Branco treats it as almost an absurdity that NATO's treaty would be broadly permissive, something that he feels he is able to reduce ad absurdum into a claim of omnipotence for NATO and lack of any respect for law, thus justifying his alternative reading of its non-restrictive phrases as really of necessity being somehow restrictive. But, as indicated, his reductio ad absurdum is unfounded; and it falls victim to a far more meaningful reductio: that, if he were right, then most countries of the world would also be monstrous threats to everyone. Most constitutions of countries, like NATO, give their governments broad leeway to act internationally on a basis of decisions reached by their domestic political processes. If Branco were right, this would mean they can do anything they want and are not subject to international law. But in reality it means nothing of the sort. Ditto for NATO.

Anyway, the plain fact is that the NATO Treaty is permissive on almost all the points which from time to time are cited polemically in order to create an impression of restriction. The textual wording is precise enough. Branco has to try to make a reductio ad absurdum of its literal meaning, in order to try to argue that it must really have some other meaning. The reductio having failed, the actual meaning stands.

It was not an accident of oversight that NATO's text is so permissive. Rather, it was intended that way, "in order to avoid hobbling NATO like most international organizations": that was how its most important single drafter, Theodore Achilles, explained it to me in the early 1980s, a few years before his death. Achilles' explanation is inherently plausible. NATO was formed in an atmosphere of Euro-Atlantic integration-striving, buttressed by public movements that put forward European and Atlantic Union as an ideal. The goal was to form institutions that could gradually grow stronger and expand their work as they developed habits of cooperation and linkages among countries that could be used for further cooperative work. This goal was in due course elaborated by neo-functionalist political science theory in the 1950s and 1960s: cooperation could "spill over" and lead to cumulative integration of countries, if the organizational structure and charter were sufficiently permissive. The permissive language of the NATO Treaty served precisely that purpose.

For the founders, and for many of the rest of us, it is a good thing that international organizations can have such "mission creep". The world is increasingly interdependent, there is a huge deficit of international cooperation compared to what it is needed, and when international organizations have a capacity for growth in their work, that is generally all to the better.

To be sure, national-patriotic resistance movements, from the John Birch Society to Alexander Dugin in the 1990s and today a lot of semi-mainstream Russians, resent this and spread suspicions about any such organization being "the first step down the road to" ... (to world government, usually). The charge is largely true, but minus the lurid exaggerations in the way it is worded (and please don't quote the first phrase in this sentence, before the comma, out of context from the rest of the sentence, the way the national-patriots would). It is not a "first step" that forces countries to go farther, but rather one that permissively opens the door to more easily taking further needed steps, which are still plenty difficult. Some further steps may be specified as legal commitments from the outset (this was often the case in the founding EU treaties); most others, like those of the NATO Treaty, are simply suggested and remain voluntary, akin to accessory options when buying a car. The virtue of suggesting them at the outset is to make it somewhat less difficult to get them undertaken later, creating some momentum in their favor, giving them the central legitimacy-spot in place of the usual presupposition of legitimacy for the status quo, by putting down on paper the founders' consensus on the desirability of later taking steps in the indicated direction. This is what lawyers call "garbage language" because it adds no legal commitments, but laymen and diplomats often value for its suggestive uses.

The NATO Treaty has lots of such useful "garbage language", which on a number of occasions have served to help its members in "getting to yes" in subsequent years. Article 2, Article 4, and Article 10 are examples, adding almost no legal commitments to do anything but talk, but providing lots of moral commitment to talk in certain directions, and suggesting directions for moving together actively. Reading them restrictively rather than suggestively leads to an absurd misreading of the Treaty. Reading them to figure out why such language was included, despite its legal superfluousness, enables an understanding of the larger meaning of the Treaty, which goes far beyond Article 5 although the strength of commitment in Article 5 provided an important anchor for the rest.

The "Canadian article", Article 2, which is a watered down version of what was originally proposed by Lester Pearson, was aimed at expansion of NATO's work in the direction of a comprehensive political-economic-military federation of the Atlantic countries. Dean Acheson at first opposed Article 2, since it provided no useful obligations but could be attacked by isolationists in the Senate as a "first step down the road". John Hickerson, who took the initiative that first led to the discussions for a NATO Treaty (subsequently passing the job on to Achilles), told me that, on a day when Acheson was sick in bed, he and a few others came to Acheson's bedside and "beat it into his head" to accept Article 2 as something that was harmless since it gave us no obligations, but that we might want to "hang a hat on" someday. The "3 wise men's" report of the mid-50s used Article 2 in that way. The NATO Council adopted the report, although implementation was spotty; as I said, getting countries to genuinely do heavy-duty cooperation together isn't easy, that's why we have to be grateful for things that facilitate it.

Article 10, on expansion, is similarly good garbage language, and highly relevant to the NATO-Russia question. It does not and cannot restrict future membership to European countries (even though, whenever anyone -- e.g., the French -- opposes letting in a non-European country, they proceed to cite it as if that were its meaning), since any international organization can invite any country to join if its constitutive parties all agree to do so. Rather, Article 10 existed because the European and Atlantic federalist movements of 1939-1949 had developed the conception of uniting an initial nucleus of democratic countries as an "open nucleus", which other countries would be welcome to join upon their democratization, and intense discussion of the matter led to the conclusion that, while it was hard to draw an exact line, all European countries would certainly be welcome to join in a fairly proximate future after democratization. It drew a line of moral commitment to inclusion, not a line of exclusion. In practice, the effect of Article 10 was to give hope to all European countries that they could join the alliance if they would throw off their hostile and undemocratic regimes and were subsequently willing to be good allies (the one criterion specified in the article). Conversely, it gave NATO a sense of moral obligation to let European countries in once they gave reasonable evidence that they were, and would remain, good allies. The prime defect of NATO expansion in this regard is that NATO failed to recognize that it had an obligation to let in Russia, too, if it would be a decent ally, not just everyone else. This defect has unfortunately been easy as long as NATO exports to aspirant countries the entire responsibility of showing themselves to be good allies, rather than making the hard effort of a two-way strategic rapprochement. It is a lazy method that worked easily enough with most of the small countries of eastern Europe but has been a disaster with a great power like Russia. Nor a surprising mistake, laziness, but a very serious one in this case. Real mistakes are made in real life (and I've been amply ready to criticize them, as you know).

In the 1990s, Article 4 became the Article that NATO hung most of its work on in, including its two interventions in the Balkans. Branco is right that it obligates nothing except to consult on perceived threats to members' peace and security. But what he seems to miss is that the obligation to talk is made with a view to facilitating decision and action -- unspecified action outside of any specific Treaty mandate. Otherwise it would be absurd to mandate the talking. Branco also objects to expanding Article 4's meaning outside of NATO's precise geographical borders, defined in Article 6; but those borders were defined legally in Article 6 for Article 5 purposes, indeed with explicit reference to Article 5 alone, not Article 4. As it happens, the extensions of Article 4's application beyond NATO's Article 6 borders have been well deliberated over, and done with massive substantive justification, not capriciously. But legally they could be done in any case.

Is it really a monstrous thing, as Branco implies, that there is this greater ease of moving further, once an international organization is started with a permissive charter? Or is it a great good? The difficulty in getting to agreement on international cooperation is a difficulty that our countries suffer from badly in this interdependent world. To my mind, it is fortunate that some international organizations, like NATO and the EC, have been formed in ways that facilitate moving further. Nationalists always cry that international institutions are going "too far too fast", but the main actual danger has always been "too little too late". Here gain we have to distinguish the legal-norm side from the moral-norm side: legally nothing is either committed to or excluded by these open-ended clauses, but morally they have suggestive value. Whether Branco personally agrees that this suggestive value is a positive good is not really pertinent here, since it does not change the fact that a lot of people have viewed it that way, including the founders of NATO. No matter whether they were right or wrong in that feeling, the empirical fact remains that they had it; that is why they wrote the Treaty in a permissive way; and that is why its permissiveness is to be understood neither as a meaningless linguistic mistake nor a hidden monstrosity, but as a normal thing within the mainstream of human strivings.