NATO, Afghanistan And The Pakistan Supply Line: A Question Of Legitimacy

A Policy Brief That Answers Two Critical Questions: Is NATO Legally Present In Afghanistan? And Is Pakistan Bound By International Law To Open A NATO Supply Route Through Pakistani Territory?
The Chicago Summit Mandate In Afghanistan Pakistan Supply Route Cover photo: US military vehicles leaving Port Qasim in Karachi the morning of 19 August 2009 as a Pakistani passerby in a car takes this picture from his cell phone.
Cover Photo Credit: PakNationalists PAC

DR. SHIREEN M. MAZARI | May 2012 | Policy Brief Arms Control & Disarmament Center | Strategic Technology Research |
Published By Project For Pakistan In 21 WWW.PROJECTPAKISTAN21.ORG media@projectpakistan21.org
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Synopsis
Looking at the Chicago Summit, Pakistan confronts several important questions, including pressures from the North Atlantic Treaty Organization to end the Pakistani blockade on Ground Lines of Communications [the supply routes for war material from the Pakistani port city of Karachi to Afghanistan]. There is also NATOs role in Afghanistan given its failure to stabilize the country even after a decade of military occupation that has badly destabilized neighboring Pakistan. And last, the question of Pakistani participation in NATO 25th summit meeting in Chicago.
LEGITIMACY IN AFGHAISTAN

NATO is a regional collective defense organization as per the legal mandate under United Nations charter. The emphasis is on regional. But recently NATO has been expanding its out-of-area operations. The UN allows regional organizations to undertake military missions in their regional spheres but, for NATO, Afghanistan is an out-of-area operation. Under UN mandate, NATO has no role in Afghanistan. NATOs own literature on Afghanistan refers to a mandate for the International Security Assistance Force [ISAF]. So, where did NATO get into ISAF? Did the UNSC initiate NATOs involvement or did NATO present a fait accompli to the UN Secretary General. Clearly, it was not any UNSC resolution that sought NATOs involvement. Effectively, we now have Europeans and Atlantic states making decisions relating to the Asian region and this has far reaching consequences for all Asian states Russia, China, Pakistan, Iran, India in the long run.
NATO PERFORMANCE

As for NATOs performance and military operations in Afghanistan, it is hamstrung by inadequate force levels, especially along the border areas with Pakistan where there is a need for NATO to increase its border posts and stop terrorists crossing into Pakistan.
PAKISTAN IN CHICAGO?

The summit is dealing with NATOs presence in Afghanistan beyond 2014, the missile defense programs, and NATO partnerships which are a bizarre set of relationships. Given these agenda items and the manner in which decision-making takes place in NATO, and also its growing out-of-area operations, it makes little sense for Pakistan to participate. It will simply be present to listen to the do more mantra from NATO members.
GLOCS

In ending NATO supply operations through Pakistani territory, Pakistan has neither contravened the international laws dealing with landlocked states, nor has violated the bilateral transit trade agreement Islamabad has with Afghanistan. These laws and principles relate to peaceful trade and not the transit of war materials. A more pertinent question is whether Pakistan should allow the transport of war supplies and possibly weapons that have repeatedly been used to violate Pakistani borders and kill Pakistani soldiers.

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Is NATOs Role In Afghanistan Legitimate Under International Law?

NATOs role in Afghanistan has two key aspects, which are important: First is the issue of legitimacy in the context of Afghanistan; and second are its actual operations in Afghanistan and their shortcomings. This backgrounder deals primarily with the first aspect, although it will touch on the second also. This issue of legitimacy is critical because NATO has been expanding its mandate and operational milieu ever since the end of bipolarity. Not only has it increased its membership; it has also sought to transform the Alliance in terms of its strategic concept and functions. It has done this through the Partnership for Peace concept (PfP) primarily with Eastern European states and its program of the Mediterranean Dialogue followed by the Istanbul Cooperation Initiative (ICI) apart from its special arrangement with Russia. So, why should there be an issue of its legitimacy within the context of Afghanistan? One answer is because it is an out-of-area operation. After all, NATO still remains, in legal terms, a collective defense organization in terms of its legitimacy through the UN system under Chapter VIII, Articles 52 and 531, as well as Chapter VIIs notion of collective self-defense as embodied in Article 51.2
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Article 52 1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council. This Article in no way impairs the application of Articles 34 and 35.

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3. 4. Article 53 1.

The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state. The term enemy state as used in paragraph 1 of this Article applies to any state, which during the Second World War has been an enemy of any signatory of the present Charter.

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Article 51

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However, regional collective defense organizations need to operate in the specific region of their membership since decision-making is restricted to this membership. Despite NATO expanding its functions and strategic concepts, its essential purpose as stated in its 1999 Strategic Concept remains to safeguard the freedom and security of its members by political and military means.3 And this continues to remain the prime focus of NATO. Given the continuing European-Atlantic membership of NATO, it is somewhat disturbing to see NATO transforming itself from a collective defense organization (Article 5 of the NATO Charter is surely in the context of collective defense?) to a collective security organization to serve the interests of its membership or perhaps future coalitions of the willing. There is no legitimacy for any collective security organization other than the UN with its universal membership. Article 51 of the UN Charter provides a very clear and limited framework for collective defense organizations. Article 52 of the Charter relates to regional arrangements in connection with maintenance of peace and security and talks in terms of these organizations coming into being as are appropriate for regional action. Also, under Article 53, there can be no action without authorization of the Security Council except against an enemy state as defined in Article 53:2.

IS NATO TRYING TO REPLACE UNITED NATIONS?

So the question that remains unanswered is whether NATO is going to be an alternative to the UN system of collective security, peacekeeping, and so on just as the notion of coalitions of the willing is a direct alternative to the UN and its Security Council? That NATO has the military capability while the UN may be lacking this is not the issue here since one is focusing on issues of legitimacy. In any case, the UN can be given more teeth if the members are prepared to do so and make effective Articles 43-47 of Chapter VII of the UN Charter, including the provisions relating to the creation of a Military Staff Committee.4
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
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http://www.nato.int/docu/handbook/2001/hb0203.htm Chapter 2: The transformation of the Alliance Article 43 1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

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The UN Mandate In Afghanistan Even within the context of regional organizations, actions have to have a UN mandate and this is where the case of Afghanistan is unclear. Post-9/11, the UN Security Council, through Resolution 1386 (December 2001), sanctioned the International Security Assistance Force (ISAF) for Afghanistan. As stipulated in the Bonn Agreement of December 2001, the progressive expansion of the ISAF to other urban centers and other areas beyond Kabul was duly approved through follow-up on UNSC resolutions. So where did NATO get into ISAF? Did the UNSC initiate NATOs involvement or did NATO present a fait accompli to the UN Secretary General. Clearly, it was not any UNSC resolution that sought NATO involvement. Instead, what is available on record is that NATO informed the UN Secretary General, through a letter dated 2 October 2003 written by NATO Secretary General, stating that on 11 August 2003 NATO had assumed strategic command,

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Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

Article 44

When the Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfillment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member's armed forces.

Article 45 In order to enable the United Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action. The strength and degree of readiness of these contingents and plans for their combined action shall be determined within the limits laid down in the special agreement or agreements referred to in Article 43, by the Security Council with the assistance of the Military Staff Committee.

Article 46 Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.

Article 47 1. There shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament. The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee's responsibilities requires the participation of that Member in its work. The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently. The Military Staff Committee, with the authorization of the Security Council and after consultation with appropriate regional agencies, may establish regional sub-committees.

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control and coordination of the International Security Assistance Force (ISAF). 5 This was followed by another letter from the NATO Secretary General to the UN SG informing the latter of the North Atlantic Councils agreement on a longer-term strategy for NATO in its International Assistance Force (ISAF) role in Afghanistan. Both these letters were sent to the President of the UNSC by the then UN Secretary General Kofi Annan on October 7 with the request that they be brought to the attention of the UNSC. So effectively NATO presented the UNSC with a fait accompli. It was in the face of these developments that the UNSC passed Resolution 1510 on 13 October 2003 in which it acknowledged the 6th October NATO SGs letter as well as communication from the Afghan Minister for Foreign Affairs and authorized the expansion of the ISAF mandate. But nowhere is there any reference to NATOs role in Afghanistan. So is NATO really in Afghanistan because of UNSC resolutions? To date, all UNSC resolutions relating to Afghanistan and the military mandate refer to ISAF. NATO itself keeps referring to the ISAF mandate in its material relating to the 2014 date of intended departure of NATO from Afghanistan. The UN allows regional organizations to undertake military missions in their regional spheres but, for NATO, Afghanistan is an out-of-area operation. So, effectively, we now have Europeans and Atlantic states making decisions relating to the Asian region and this has far reaching consequences for all Asian states in the long run. NATOs Shoddy Performance In Afghanistan In terms of NATOs actual military operations in Afghanistan, they are hamstrung by inadequate force levels, especially along the border areas with Pakistan where there is a need for NATO to increase its border posts. Also, there has to be a more holistic approach to dealing with the issue of terrorism rather than a military-centric approach. Equally, NATO has to redress the earlier erroneous policies of the US, which focused on giving money and support to the warlords and led to the resurgence of the poppy crop and weapons. Finally, NATO has to be sensitive to the fallout of civilian collateral damage. In an asymmetric conflict, non-military considerations have to be given sufficient weightage, since military might in itself is inadequate in dealing with the conflict.

UN Document S/2003/970 Annex I

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NATO SUMMIT 2012 IN CHICAGO

The NATO Summit is coming at a time when NATO is in crisis militarily in Afghanistan, is facing an economic crunch because of European military budget cuts and is seeking to find partners outside of NATO who will help offload some of these problems. Three key issues at the present NATO Summit are going to be: 1. NATOs commitment to Afghanistan especially after 2014 when ISAF and the US are supposed to exit from the country. 2. Beyond Afghanistan, NATO will focus on how to ensure its military capabilities in coming years given budgetary pressures on member states. One major development that will be discussed will be Missile Defense which basically is highly destabilizing and threatens the deterrence capabilities of states like China, Russia and Pakistan. 3. Strengthening of NATOs partnership networks around the world. This is a very bizarre set of relationships where NATO partners provide intelligence sharing and military cooperation but have no voting powers within NATOs decision-making. It is also part of the evolving coalitions of the willing framework which the US initiated in Iraq as an alternate to the UNSC collective security system. For a country like Pakistan this development is an extremely negative one as we have always upheld the UN system where there is universal membership and some level of protection against military aggression and arbitrary pressures by powerful states. Given these agenda items and the manner in which decision-making takes place in NATO, and also its growing out-of-area operations, it makes little sense for Pakistan to participate. It will simply be present to listen to the do more mantra from NATO members. As for opening the supply route simply for this irrelevant participation, that is too high a price to pay in terms of domestic instability and further destruction of our road network. Most important, how can we allow NATO supplies even military ones to pass through Pakistan when they will be used against us as happened in the Salala massacre and more recently the mortar attacks fired into Pakistan by NATO forces (13 May 2012).

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THE PAKISTAN SUPPLY ROUTES AND THE INTERNATIONAL LAW

As for Defense Minister Ahmed Mukhtars statement in which he stated that non-restoration of NATO supplies was a violation of international law and international conventions. This assertion is absolutely incorrect and the Defense Minister needs to educate himself on international law. Under international conventions dealing with land locked states and their right to transit goods through neighboring countries with access to the sea, Afghanistan has the right of transit for goods destined for that country, through Pakistan. Pakistan has neither contravened this law nor the bilateral transit trade agreement it has with Afghanistan. These laws and principles relate to peaceful trade not the transit of war materials. Even on NATO supplies it is the state of Afghanistan that should request use of transit access through Pakistan for these supplies, a request that Pakistan can consider. But Afghanistan has not made such a request. NATO wants this transit route restored but it has no locus standi as an entity on this legal question. Equally pertinent, even if Afghanistan was to make a request for transit of NATO supplies through Pakistan and into Afghanistan, Islamabad would be in its legal rights not to grant this permission on grounds that the war material would also be used against it, as has been happening. At the end of the day, there is no international law that makes it incumbent upon a state to allow transport of military supplies to a third country from where the same can be used and have been used in the past against the state granting such transit rights.

[THIS POLICY BRIEF IS CONCLUDED]

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MISSION
To help and guide the citizens of Pakistan, the Federal Government and the Pakistan Armed Forces in sustaining and improving the core structure of the Pakistani State. Our project is organized around a basic idea that a proud history creates a nation of achievers. And that the Pakistani nation must be assertive in promoting its legitimate interests. Pakistan has made tremendous strides in its first seven decades. It needs to draw lessons of unity from its long history as a descendant of major empires in our region. This helps Pakistanis unite and understand their place in the region and in the books of history. For a better future, the Pakistani State must create citizens who are proud of their past. This confidence can then be used by the Pakistani State to create globalist citizens, proud Pakistani nationalists driven to excel in todays world, in cooperation with all peaceful nations. Pakistan requires a solid and stable political system suited to its domestic environment, and strong Armed Forces geared toward protecting the Pakistani space. Our vision is to help build a rapid and lethal military force in light of our modern and historical experiences in our larger surrounding pace. Pakistan is capable of packaging and exporting its robust culture, arts and music. Pakistan must move fast to harness its astounding potential in trade and as a market that can produce immense wealth and lead to attractive living standards for its citizens and worldwide capital investors. Pakistan has wasted two decades: the last of the twentieth century and the first decade of the twenty-first. We must ensure we utilize the remaining nine decades of this century to execute our plan for Pakistans rise.
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ABOUT PROJECT PAKISTAN 21 Project for Pakistan In 21st Century is a nonpartisan, nonprofit pool of Pakistani talent in diplomacy, media, military, education, economy and science. Its short name is Project Pakistan 21. It seeks to position Pakistan and its people for success in 21st century. It recognizes that a debilitated and rusty system of politics and governance in Pakistan cannot create a strong nation and needs to be changed top to bottom. To this end, Project Pakistan 21 intends to integrate Pakistans twin assets of human resource and strong institutions to play their role in Pakistans rebirth as a stable, proud, strong, independent and prosperous nation. OUR HISTORY Pakistan is a nation and a people extracted from the great cultures and blood lines going back to Turks, Persians, Arabs and Aryans. This history spans ten centuries and beyond of progressive contribution to arts, culture, science, trade and politics. Todays Pakistanis are cosmopolitan, resourceful and active contributors to the global march of civilization just as their ancestors were at their zenith. The lowest point in Pakistans history was the ninety years between the downfall of the Mughal Empire in 1857 and the rise of independent Pakistan in 1947. The trials of that period galvanized the Pakistani nation and spurred an impressive political and legal movement, spearheaded by patriotic, educated and resourceful leaders who triumphed with the rise of independent Pakistan on August 14, 1947. OUR FUTURE Pakistans future lies in creating and grooming ruling political elites committed in absolute terms to this idea of Pakistan and the prosperity and wellbeing of its citizens; a strong federal government sitting atop a power structure consisting of a dozen or more administrative provinces, or states, with directly elected governors and local parliaments. A political system that encourages the rise of national-level parties and discourages and bans politics based on ethnicity, language, sect or any divisive theory. We believe that the focus of governance in the first three decades of the twenty-first century in Pakistan should be on economy, trade, energy, infrastructure and education. Politics must not have a priority in this period. An independent media and judiciary can and should continue informing and watching the performance of the state and public servants even within a controlled, Economy First political system. This, in essence, creates the Pakistani model for development. Bold democratic reforms are required for a strong Pakistani state. Pakistans early plunge into Westminsterstyle political system was premature and did not take into account the young nations need for focus, discipline and organization immediately after Independence. National life in Pakistan needs to be depoliticized to the extent of liberating the talents of Pakistani people in arts, religion, culture, music, business, academia and sports. Politics in this period must not become a national sport. The State must help create an environment where every Pakistani citizen can contribute to increasing GDP and generating wealth. Pakistans vibrant media should be strengthened to take Pakistans voice to the world through films, books, music, documentaries and news media.

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Pakistan needs to harness its geostrategic strengths to their fullest potential across multiple platforms, from tourism to business to the military. Education must be tailored and imposed to create productive and globalist Pakistani citizens. The end game is to have men and women who are anchored in pride in Pakistans history and its Islamic heritage, which unites Pakistanis from all religious backgrounds and persuasions and grants equal opportunity to Pakistani Christians, Sikhs, Parsis, Hindus and others. Pakistans citizens and state are open to the world in the best traditions of Islamic golden period. In this context, Project Pakistan 21 will soon be floating a national document titled, A Smart Coup: Pakistan Strategic Readjustment Program For 21st Century. The document proposes a roadmap for achieving the above objectives. Our goal is that by 2030, Pakistan must be recognized as a politically stable and dynamic nation with a firm grip on its domestic politics and international relations. This is the vision that we at Project For Pakistan In 21st Century aims to achieve.

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