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

7/31/2019 NATO, Afghanistan And The Pakistan Supply Line: A Question Of Legitimacy

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http://www.nato.int/docu/handbook/2001/hb0203.htm


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A Policy Brief That Answers Two Critical

Questions: Is NATO Legally Present In

Afghanistan? And Is Pakistan Bound By

International Law To Open A NATOSupply 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: PakNationalistsPAC

DR. SHIREEN M. MAZARI| May 2012 | Policy BriefArms Control & Disarmament Center | Strategic Technology Research |

Published By Project For Pakistan In 21st

CenturyWWW.PROJECTPAKISTAN21.ORG

[email protected]

NATO, Afghanistan And The

Pakistan Supply Line:

A Question Of Legitimacy
http://www.projectpakistan21.org/mailto:[email protected]:[email protected]:[email protected]://www.projectpakistan21.org/


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Synopsis

Looking at the Chicago Summit, Pakistan confronts several important questions, includingpressures 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 itsfailure to stabilize the country even after a decade of military occupation that has badlydestabilized 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 onAfghanistan 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 afait 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 theAsian 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 missiledefense 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 thebilateral transit trade agreement Islamabad has with Afghanistan. These laws and

principles relate to peaceful trade and not the transit of war materials. A more pertinentquestion is whether Pakistan should allow the transport of war supplies and possibly

weapons that have repeatedly been used to violate Pakistani borders and kill Pakistanisoldiers.


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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 EasternEuropean 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

1 Article 52

1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such mattersrelating 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.

2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort toachieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring

them to the Security Council.

3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangementsor by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.4. This Article in no way impairs the application of Articles 34 and 35.

Article 53

1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under itsauthority. 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.

2. 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.

2 Article 51

Is NATOs Role In Afghanistan

Legitimate Under International Law?


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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 NATOCharter 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 asdefined in Article 53:2.

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.

3http://www.nato.int/docu/handbook/2001/hb0203.htm Chapter 2: The transformation of the Alliance

4Article 43

1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake tomake 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.

IS NATO TRYING TO

REPLACE UNITED NATIONS?


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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, throughResolution 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 wasduly approved through follow-up on UNSC resolutions.

So where did NATO get into ISAF? Did the UNSC initiate NATOs involvement or did

NATO present afait 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,

2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, andthe nature of the facilities and assistance to be provided.

3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall beconcluded 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 theSecurity 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.

2. The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the Security Council or theirrepresentatives. 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.

3. The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forcesplaced at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out

subsequently.

4. The Military Staff Committee, with the authorization of the Security Council and after consultation with appropriate regionalagencies, 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 theUNSC with afait accompli.

It was in the face of these developments that the UNSC passed Resolution 1510 on 13October 2003 in which it acknowledged the 6 th 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.

5UN Document S/2003/970 Annex I


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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 aresupposed to exit from the country.

2. Beyond Afghanistan, NATO will focus on how to ensure its military capabilities incoming years given budgetary pressures on member states. One major developmentthat 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 verybizarre set of relationships where NATO partners provide intelligence sharing andmilitary 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 massacreand more

recently the mortar attacks fired into Pakistan by NATO forces (13 May 2012).

NATO SUMMIT 2012 IN CHICAGO
http://bit.ly/K8DzNuhttp://bit.ly/K8DzNuhttp://bit.ly/K8DzNu


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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 hasnot made such a request.

NATO wants this transit route restored but it has no locus standi as an entity on this legalquestion. 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]

THE PAKISTAN SUPPLY ROUTES

AND THE INTERNATIONAL LAW


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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 ofindependent 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. Polit ics 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 polit ical system. This, in essence, creates the Pakistani

model for development.

Bold democratic reforms are required for a strong Pakistani state. Pakistans early plunge into Westminster-style 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 cit izen 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 cit izens and state are open to the world in the best tradit ions of

Islamic golden period.

In this context, Project Pakistan 21 will soon be floating a national document t itled, A Smart Coup: Pakistan

Strategic Readjustment Program For 21st Century. The document proposes aroadmap for achieving the

above objectives.

Our goal is that by 2030, Pakistan must be recognized as a polit ically stable and dynamic nation with a firm grip

on its domestic polit ics and international relations.

This is the vision that we at Project For Pakistan In 21st Century aims to achieve.

Documents

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