In 1945, under the original scheme of the United Nations Charter, a country did not have to be a member of a collective self-defense or mutual defense treaty such as the North Alliance Treaty (1949) or the Inter-American Treaty of Reciprocal Assistance (the “Rio Treaty” or TIAR in Spanish, 1947), in order to request military assistance from other countries when a country was under armed attack.
The North Atlantic Treaty and the Rio Treaty simply established for members of each respective alliance the principle that an attack against one would be considered an attack against all. This principle is embodied in Article 5 of the NATO treaty and Article 3 of the Rio Treaty.
Article 3 of the 1947 Inter- American Treaty of Reciprocal Assistance or “Rio Treaty” provides, in part:
1. The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations.
Article 5 of the North Atlantic Treaty 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.
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The NATO treaty built on the experience of the Latin American states, following the adoption in 1933 of the Montevideo Convention on the Rights and Duties of States.
Under the 1945 Charter of the United Nations, states were authorized to engage in individual or collective self-defense in the event of an “armed attack” against the territory of a state.
There was no requirement that the attacked state be a member of a collective security or mutual defense treaty.
Article 5 of the North Atlantic Treaty simply sets up the obligation of members to come to the collective self-defense of a member state in the event it is subjected to an armed attack. But it does not prohibit them from coming to the defense, either individually or collectively, of a non-member state.
In short, neither Article 5 nor any other provision in the Atlantic Treaty prohibits a member state from coming to the assistance of a non- member state which is the victim of an armed attack. Any state may come to the assistance of the attacked state, in accordance with Article 51 of the U.N. Charter.
In 2022, the Cold War is over, or almost over, and it is time to look beyond the practice during the Cold War of limiting collective self-defense actions to assistance to an allied member of a mutual defense treaty.
That means that legally, any country and any NATO country, may come to the collective self-defense of Ukraine if it is subjected to an armed attack by Russia, which in this case would be a further armed attack since Russia previously conducted armed attacks against Ukraine in the Crimea and in Eastern Ukraine in 2014.
President Joe Biden made a huge error when he announced that he was taking force off the table in terms of how NATO might respond to a Russian invasion of Ukraine.
Even if only for negotiating purposes, Biden should put force in response to a potential Russian invasion back on the table.
It is time for other countries to declare that they are leaving open the possibility of using force in collective self-defense of Ukraine if Russia launches a new invasion and Ukraine requests their assistance.
The big question no one in the West is asking is, “If Russia invades Ukraine, how will the war end?”
This is the question people should be focusing on.
Obviously, the U.N. Security Council will have a major role to play in ending any war. To date, neither the U.S. nor NATO members have taken Putin’s threats of invasion to the Security Council, where the U.N. Charter and international law play important roles.
The time to go to the Security Council is now, and now is also the time for other states to announce they would consider using force in collective self-defense of Ukraine, if requested.
Such action would be taken only following a Russian “armed attack” against the “territorial integrity or political independence” of Ukraine in violation of Article 2 (4), and in accordanve with Article 51 of the United Nations Charter.
Taking the Russian threat to the Security Council would place the U.S., NATO, and Ukraine in a good posture for ending the war quickly, and before it spreads, in the event that the Russians launch an invasion.
The war, if it takes place, is likely to involve very active measures of cyber-warfare, both offensive and defensive including active measures of defense, and could easily escalate and spin out of control.
Microsoft, for example, has stated that computer systems in Ukraine have been infected with malware which, if activated, could shut the whole country down.
We should not forget that with Russia and the U.S. (and Britain and France), we are dealing with countries with nuclear weapons, which Putin has not infrequently threatened to use.
The Trenchant Observer
