The NATO Legal Gazette is an educational outreach publication produced by the HQ SACT Legal Offices in Norfolk and Staff Element Europe co-located at SHAPE in Mons, Belgium.
The NATO Legal Gazette contains thematically organized articles usually written by authors who are military or civilian legal personnel working at NATO or in the governments NATO and partner nations.
Its purpose is to share articles of significance for the large NATO legal community and connect legal professionals of the Alliance.
The NATO Legal Gazette is not a formal NATO document. Its articles do not represent the official opinions or positions of NATO or individual governments.
Issue 43 of the NATO Legal Gazette focuses on the international law and policy adjacent the international security challenges posed by climate change.
As climate change continues to influence NATO’s and nations’ conduct of strategic affairs and military operations, we offer this issue of the NATO Legal Gazette as our contribution to the debate and discussion. The effects of climate change on mass migration, competition for food and water, and effects on coastal and maritime communities, among others, will be long-lasting, severe, and somewhat unpredictable.
It is our earnest hope this issue of NATO Legal Gazette contributes to the awareness of both legal practitioners and academics and the scientific, strategy, policy and operations communities with regard to the effects of climate change on NATO’s force structure, posture, and conduct of operations, and the changing operational environment.
We are grateful in particular for the contribution of our team of editors, with key contributions by Headquarters Supreme Allied Commander Transformation’s Robert “Butch” Bracknell, Galateia Gialitaki, Mette Prassé Hartov and Madeleine Goddrie, as well as our reserve staff legal officers, Commander Todd Richards, United States Navy Reserve, and Lieutenant Colonel Scott Lucchesi, United States Marine Corps Reserve and Lieutenant Colonel David Devenney of the Allied Command Transformation Communications Branch.
Issue 42 of NATO Legal Gazette covers the legal aspects of NATO’s newest domain, space. It is meant to complement other strands of work in NATO on space, framing some important and sometimes vexing legal issues pertaining to space operations (both military and “dual-use” activities), presence, exploitation of resources, the application of terrestrial law in space, and the intersection of the law governing space and cyber.
We are particularly fortunate to have a foreword including an update on the space law manuals projects convened by two consortia of organizers – Professor Dale Stephens of the University of Adelaide offers a succinct description of the work ongoing on the Woomera Manual, and Professors David Kuan-Wei Chen, Roy Ballest, Ram Jakhu, and Steven Freedland explain the scope and progress of the MILAMOS (McGill Manual on the International Law Applicable to Military Uses of Outer Space) project. Both these manuals will follow the model of the Tallinn Manual on cyber law, describing the current state of space law in the view of the manual’s contributors.
We are grateful in particular for the contribution of our team of editors, with key contributions by HQ SACT’s Galateia Gialitaki and our legal interns, Muge Karatas and Davis Wright. Galateia’s tireless efforts in leading the organization and editing process ensured this significant editorial undertaking spanning three continents and 14 time zones was a success.
This issue of the NATO Legal Gazette is the brain child of Robert (Butch) Bracknell who advocated using the Gazette to share and socialise innovative legal transformational ideas from legal advisors in academia, international organizations, commercial practice, and industry.
Issue 41 begins with a Preface by Geoffrey and Gary Corn, retired U.S. Army Judge Advocates and now noted academics. They consider technological changes from the 1980s to the present and incisively invite our attention to: “1) the development of the cyber domain and the adoption of cyber operations as a means and method of military and other security related operations; 2) the movement towards the development of lethal autonomous weapon systems (LAWS); and 3) the reshaping of the information environment and the attendant impact on perceptions of strategic legitimacy,” knowing that “NATO’s best minds must stake out the cutting edge territory of these innovations.”
Antoaneta Boeva is a lawyer for the ITER Organization in Saint-Paul-lès-Durance, France. Her article, Innovation for peaceful purposes only: Where there is the will, there is ITER describes the remarkable engineering and legal efforts to create a star on Earth in the International Thermonuclear Experimental Reactor. Lauren Brown, an Associate in the International Trade Group of Squire Patton Boggs, a full-service global law firm, writes about the power of innovation in NATO’s relationships in Partnership, Not Pivot, NATO’s Legal Answer to China.
Theodora Vassilika Ogden, a Fellow at the Human Security Centre in London who is currently studying at Leiden University, and Gregg Curley, a Judge Advocate in the U.S. Marine Corps, accept the challenge to stake out their perspectives on LAWS and autonomous weapons. Ms. Ogden’s article considers Responsibility, Liability and Lethal Autonomous Weapon Systems and Major Curley provides his views in Autonomous Weapons: A Pragmatic Approach.
Christopher Timura, Judith Alison Lee, R.L. Pratt and Scott Toussaint, who are attorneys in the Washington D.C. office of Gibson, Dunn & Crutcher LLP and members of the firm’s International Trade Practice Group provide us an important article on the interplay between industry and national security is U.S. Export Controls: The Future of Disruptive Technologies. Martijn Antzoulatos-Borgstein, the Trade Compliance Manager for Rockwell Automation for Europe, Middle East and Africa, follows by proposing collective actions by NATO and partner nations to better manage the industry-security interplay in The Relevance and Benefits of Integrated Compliance Strategy (ICS) for NATO Defence Forces.
Rodrigo Vázquez Benítez is an Assistant Legal Advisor in the Allied Command Operations Office of Legal Affairs at the NATO Supreme Headquarters Allied Powers Europe. He addresses the reshaping of the information environment by providing a description of the exploitation of the legal domain in a context of strategic competition in Legal Operations: The Use of Law as an Instrument of Power in the Context of Hybrid Threats and Strategic Competition.
Brett Sander, a US legal practitioner and principal at Vendor Clearance LLC, provides our final thoughtful article, The Road to Hell is Paved with Bad Contractors: Vendor Vetting is a Better Path.
Issue 40 of the NATO Legal Gazette Environmental Protection: NATO Policies and National Views returns our practice of publishing thematically organized issues that we adopted in 2013. The intent behind publishing this issue is the same as it was with the other topics that we previously addressed: to provide the readers of the NATO Legal Gazette detailed knowledge about a subject that requires legal attention. As an international organization dedicated to the rule of law, this issue examines Environmental Protection (EP) from the perspective of international law, NATO’s policies and national views.
The 1972 Stockholm Declaration, endorsed by the General Assembly of the United Nations, declared that States have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” The 1992 Rio Declaration in 1992 repeated the prevention principle which the International Court of Justice confirmed in the Gabčíkovo- Nagymaros case. The Court held, “in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.” The prevention principle is now accepted as a norm of customary international law.4 This approach underlies NATO’s environmental protection policies, doctrine, and standardization agreements.
We present Issue 40 to provide legal advisors and environmental protection specialists a reference for their common use. It starts with four articles offering a comprehensive overview of the rules and policies on environmental protection a legal advisor should know when taking part in an exercise or a mission. Ms. Lisa Weihser, former NATO Legal Intern at the International Military Staff Office of the Legal Advisor, first reviews the events leading to the emergence of environmental protection during international armed conflicts and then analyses this topic through Human Rights norms. Lieutenant-Colonel David J. Burbridge, the SHAPE environmental officer, contributes an article on NATO operational responsibility for environmental protection. He reviews NATO’s evolution in developing current NATO environmental protection policies, standards and regulations. Next, Lieutenant Colonel Ben Valk, the former Deputy Legal Advisor of the International Military Staff, describes how NATO mainstreams environmental protection policies. He also presents an overview of the main documents a Legal Advisor is likely to use during a mission or an operation to ensure compliance with environmental regulations. Finally, Mr. Jeroen Rottink, Head of the Quality, Occupational Safety & Health, Environmental Protection Section (QOSHEP) of the Netherlands Defence Materiel Organization, offers his perspective on What NATO and National Legal Advisors Should Know about the Application of NATO Environmental Protection Policy, Doctrine and Standardization Agreements.
Major Ross Franklin is an Environmental Engineer in the Joint Engineer branch, Canadian Joint Operations Command and the Canadian Head of Delegation to the NATO Environmental Protection and Petroleum Handling Equipment Working Groups. Major Franklin argues in his essay that renewed collective defence measures in Europe are revealing the many capabilities and, sometimes, limitations of the current NATO EP framework in supporting the spirit of the North Atlantic Treaty, the NATO SOFA, and other foundations of the Alliance.
The next two articles are an illustration of national environmental protection framework. As visiting nations have to respect the Host Country’s environmental law when operating in another country, Dr. Jean Rhéaume, environmental law advisor for the Department of National Defence and Canadian Forces, presents a meticulous summary of the Canadian environmental provisions applicable to military activities taking place in Canada to familiarise legal advisors with the environmental law in Canada. Major Shane Drew, Deputy Director Environmental Governance, presents the Australian environmental legislative framework the Australian Defence Force must consider in the planning, conduct and remediation phases of combined and unilateral military exercises to minimise the impact on the environment.
This issue then focuses on specific areas of environmental protection. Colonel Jody M. Prescott, U.S. Army Judge Advocate Corps (retired) Army military attorney and lecturer at the University of Vermont, explores the links between armed conflict, gender and climate change, and addresses gender considerations issues in NATO Environmental Protection doctrine and practice. Mr. Nathaniel L Whelan, Chief of Training Support System Division, 7th Army Training Command, approaches the question of Environmental Protection from a different angle: as a hybrid threat. He describes how some entities use environmental protection and associated regulations to disrupt military operations and handicap NATO’s military training capability. He also suggests a multi-faceted solution set to mitigate this threat.
This issue concludes with current observations from the 2018 Trident Juncture exercise and NATO Resolute Support mission in Afghanistan. Through her experience in NATO-exercise Trident Juncture 2018, Major Marianne R. Bø, engineering officer in the Norwegian Armed Forces posted as Staff Officer Environmental Protection at the Norwegian Joint Headquarters, shares her hands-on perspective on managing the environmental impacts resulting from such a large joint exercise. Despite an intensive preparation and engagement with the visiting countries, this article reports that 1069 cases, 49 complaints and 1020 damage cases, arose during Trident Juncture 2018. This raises the question of how to better ensure respect of environmental regulations and policies in NATO Exercises. Our last article provides insight on the environmental impacts of the NATO Resolute Support mission in Afghanistan. Mr. Chris Ingoe, the NATO Environmental Protection Staff Officer, identifies, with words and pictures, the challenges surrounding the management of these environmental efforts to protect the force the environment and the civilian population.
Issue 39 of the NATO Legal Gazette contains eight articles that address issues of legal significance to NATO. The first two are from presentations that merit broader distribution. Steven Hill, the Legal Adviser and Director of the Office of Legal Affairs at NATO Headquarters contributes, Current International Law Challenges Facing NATO from his 2017 address to United Kingdom’s Government Legal Services Conference. Andres Munoz Mosquera, the Director of the Office of Legal Affairs NATO Supreme Headquarters Allied Powers, Europe (SHAPE) and the Legal Advisor of Allied Command Operations the Allied Command Operations and SHAPE Legal Advisor, provides his presentation, Some Notes on NATO‘s Institutionalisation from the 2015 Workshop, “Tackling 21st Century Challenges Faced by International Organizations.”
The next six articles address discrete topics of legal significance to NATO. Steven Hill and his colleague, David Lemétayer, Assistant Legal Advisor, Office of Legal Affairs have authored, The Treaty on the Prohibition of Nuclear Weapons: A NATO View. Jan Raats, Legal Advisor of the NATO Airborne Early Warning & Control Programme Management Agency (NAPMA) delivers, An update on NATO cooperative Memorandum of Understand (MOU) Guidance. Zdeněk Hýbl, Legal Advisor of the Joint Chemical, Biological, Radiological, and Nuclear Defence Centre of Excellence (JCBRN Defence COE) presents a timely essay, GDPR and NATO Centres of Excellence. Major Arn Oosterveer, Legal Advisor, German-Netherlands Corps and Mrs. Kelly Telen, Legal Assistant, Joint Force Command Headquarters Brunssum share their insights on the Legal Considerations of the Accession of France to the Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty. Karol Karski, Head of the Department of Public International Law, Chairman of the Academic Council of the Institute of International Law, Faculty of Law and Administration, University of Warsaw, Poland and Paweł Mielniczek, Ph.D. in Law, University of Warsaw, address The Notion of Hybrid Warfare In International Law and its importance for NATO. We close this issue with the kind submission of Ludwig Vandder Veken, the Secretary-General of the International Society for Military Law and the Law of War who invites attention to The Leuven Manual on the International Law Applicable to Peace Operations, Cambridge University Press December 2017 which is open to digital access through Cambridge Core.
In 2019, we look forward to sending two thematic issues to you: Issue 40, which will address environmental topics and Issue 41, which will focus on the legal aspects of innovation. 2019 is the 70th anniversary year of signing of the North Atlantic Treaty. The Emory International Law Review, an open-source online publication of the Emory University Law School in Atlanta, Georgia, USA, has graciously agreed to publish a collection of essays and commentaries on specific articles of the North Atlantic Treaty contributed by noted academic authors and NATO practitioners. We will share the expected date of their publication in our next NATO Legal Gazette.
Twelve articles compose this 38th Issue of the NATO Legal Gazette, the most substantive issue we’ve yet published. Credit for this must be given to Ms. Mette Prassé Hartov, our co-editor, who recommended we address as our theme Cultural Property Protection (CPP). Because much of the discussion of CPP is treaty based, to aid those who may be new to CPP, the last article of this issue, “Cultural Property Protection during Armed Conflict under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Second Protocol: A Comprehensive Guide” was authored by our co-editor and former SHAPE Legal Intern, Zarghoen Rawan, as a quick reference to this large topic that may be consulted while reading the other eleven articles in this issue.
Second, in recognition of the 70th Anniversary of the North Atlantic Treaty, a special edition of the NATO Legal Gazette will be published in 2019. On page 124, the Legal Advisers at NATO Headquarters, Allied Command Operations, and Allied Command Transformation are pleased to issue a Call for Papers on the theme “The North Atlantic Treaty at 70 – Selected Legal Perspectives.”
Third, the fourteen contributing authors to Issue 38 include many luminaries in the field of CPP. We begin with Lieutenant-Colonel David Burbridge, an Engineering Officer in the Canadian Armed Forces presently posted as the Environmental Management officer at SHAPE. He begins this issue with his insightful article on cultural property protection as an essential part of the NATO Environmental Protection policy. Dr. Frederik Rosén, Senior Researcher at the Danish Institute for International Studies, provides a clarifying overview of the progress undertaken during the NATO Science for Peace and Security workshops and shares practical recommendations for NATO policy and doctrine enhancement. Mr. Jan Hladík, Chief of UNESCO’s Cultural Heritage Protection Treaties Section, presents the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its 1999 Additional Protocol, and shares his views on peacetime responsibilities regarding CPP.
From University College London, Professor Roger O’Keefe addresses the relationship between the law of war crimes and the intentional destruction, damage or appropriation of cultural property during armed conflict. Whilst doing this, Professor O’Keefe provides a meticulous analysis of the rich case law on crimes against cultural property. Mr. Mark Vlasic, Senior Fellow and Adjunct Professor of Law at Georgetown University and Ms. Helga Turku, a rule of law consultant for US government funded projects in Africa and Latin America, jointly contributed an article that sheds light on the destruction of cultural property in Syria and addresses the ways in which international law could be utilised to hold the perpetrators of these heinous crimes accountable. Specifically focussing on ISIS’ use of cultural property to finance its terrorist activities, Ms. Turku provides an additional article on the instrumental role of cultural property in terrorism and the international community’s approach to prosecuting war crimes, crimes against humanity and genocide in light of crimes against cultural property.
Dr. Patty Gerstenblith, Distinguished Research Professor at DePaul University College of Law and Secretary of the U.S. Committee of the Blue Shield, together with Dr. Nancy C. Wilkie, Professor of Classics, Anthropology and the Liberal Arts and President of the U.S. Committee of the Blue Shield contribute to this edition an article on the Blue Shield Movement, an international NGO concerned with CPP in the event of armed conflict. Dr. Laurie Rush, the Cultural Resources Manager and installation Archaeologist of the US Army 10th Mountain Division at Fort Drum, zooms in on the importance of training members of the armed forces in CPP and provides a sharp overview of very practical steps that were taken by the United States Army in order to integrate CPP into the training of its personnel. From the United States Army Corps of Engineers, Dr. Kathryn Fay, a Post-Doctoral Researcher at the US Army Construction Engineering Research Laboratory (ERDC-CERL), and Dr. George Calfas, ERDC-CERL Program Manager, address the development of the Contingency Base Site Identification for the Tactical Environment (CB- SITE); a new tool that assists in avoiding inflicting damage to cultural sites during the construction of overseas bases.
The Deputy Legal Advisor for HQ SACT, Ms. Mette Prassé Hartov presents a welcome review of the November 2016 launched UNESCO Military Manual on Cultural Property Protection. Drafted under the auspices of UNESCO and the International Institute of Humanitarian Law (Sanremo, Italy), the Manual aims to serve as a practical guide for military forces in their implementation efforts of CPP-related international law. Mr. Zarghoen Rawan who, as a SHAPE Legal Intern co-edited this issue, contributed two articles: “Great, Greatest or Outstanding: Defining Cultural Property in NATO Operational Context” and — as previously mentioned, “Cultural Property Protection during Armed Conflict under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Second Protocol: A Comprehensive Guide.”
Issue 37 of the NATO Legal Gazette departs from our practice of publishing thematically organized issues which we adopted in 2013 with Issue 32. The reason for this change is that we have received five articles that merit publication now.
Mr. Andrés B. Muñoz Mosquera, Legal Advisor, Supreme Headquarters Allied Powers Europe (SHAPE), continues to provide valuable articles as the most prolific contributor to the NATO Legal Gazette. In this issue he provides two articles. He and Dr. Sascha Dominik Bachmann, Associate Professor in International Law at Bournemouth University, United Kingdom, provide an overview of the legal scholarship on the concept of lawfare in hybrid warfare in their article, Understanding Lawfare in a Hybrid Warfare Context. Mr. Muñoz also offers Part II of his article, Memorandum Of Understanding (MOU): A Philosophical and Empirical Approach. Here he discusses the characterisation of MOUs, how national or international courts view them and dedicates the last section of this article to assist practitioners with comments about MOU structure.
Mr. Jean-Michel Baillat, when serving as a Commissaire en chef de 1ere classe and the Head of the Operational Section in the SHAPE Legal Office, asked the question, Hybrid Warfare, a new challenge to the Law of Armed Conflicts? He builds his article around three more questions: “What is hybrid warfare;” “Is hybrid warfare contrary to the Law of Armed Conflict (LOAC)?,” and “How to tackle Hybrid Warfare and stay within Legal Boundaries?” Readers are encouraged to consider Jean-Michel’s answers to these questions and his conclusion.
Mr. Eduardo Martinez Llarena is the logistical coordinator for NATO’s Readiness Action Plan (RAP) Agreements Implementation Office (RAIO) at SHAPE. Mr. Ignacio Fonseca Lindez is an assistant legal advisor at the SHAPE Legal Office and serves as the legal coordinator for RAIO. Their joint article, NATO Readiness Action Plan: The Legal and Host Nation Support Architecture, surveys the development of the RAP, its genesis as a response to Hybrid Warfare announced at NATO’s 2014 Wales Summit, and its four pillar architecture: 1) Supplementary agreements (SAs) to the 1952 Paris Protocol to the North Atlantic Treaty; 2) Memoranda of understanding (MOUs) for the NATO Force Integration Units (NFIU) Headquarters and the Headquarters Multinational Division Southeast (HQ MND SE); 3) Accessions by all Nations of the Alliance to the Host Nations Support Memorandums of Understanding for Exercises, Operations, and Disaster Relief Operations; and, 4) Border crossings and freedom of movement.
Finally, LTC Keirsten Kenned, U.S. Army Judge Advocate, serving as a NATO Legal Advisor in 1 (German-Netherlands) Corp in Münster, Germany, gives us a concise presentation of the NATO Exercise program, its purpose and structure, and the various challenges that a Legal Advisor will face when involved in a NATO exercise.
We will be returning to a thematic format with Issue 38 on the Protection of Cultural Property.
The theme of our 36th issue, NATO Training and Exercises, is driven by current events and decisions made by the North Atlantic Council (NAC) at the Chicago Summit in 2012. At that meeting the Heads of State and Government of the Alliance, “confidently set ourselves the goal of NATO Forces 2020: modern, tightly connected forces equipped, trained, exercised and commanded so that they can operate together and with partners in any environment.”
At the 2014 Wales Summit the NAC endorsed the Connected Forces Initiative (CFI) as a key enabler in developing the goal NATO Forces 2020. CFI combines a comprehensive education, training, exercise, and evaluation programme with the use of cutting-edge technology to ensure that Allied forces remain prepared to engage cooperatively in the future. The CFI package approved in Wales included six measures: 1) an updated NATO Education, Training, Exercise and Evaluation (ETEE) Policy; 2) a broader NATO Training Concept 2015-2020; 3) a 2015 high-visability exercise; 4) Major NATO Exercises from 2016 Onwards Programme; 5) Continued progress in implementing the technological aspects of CFI; and 6) A Special Operations Component Command headquarters capability under operational command of SACEUR. As noted by the former Supreme Allied Commander Transformation, General Jean-Paul Palomeros, “The aim of CFI is to help reorient our training and exercises towards more demanding, high intensity operations and manoeuvre warfare while capitalizing on the experience gained through recent operational commitments.”
The consequence of these decisions made by the Alliance has been to increase the number of exercises from 115 in 2014 to 280 in 2015, with NATO’s largest exercise since 2002, Trident Juncture 15, held in October and November in Italy, Portugal, and Spain. More than 36,000 participants from more than 30 nations trained together at 18 exercise locations in a Non- Article V Crisis Response Operation focused on a high intensity modern warfare setting featuring a near peer opponent. And in all of these exercises the role played by legal professionals both as trainers and as members of the exercise audience significantly contributes to the realism of the events and the precision of the Alliance actions.
Thanks to the dedication of the seven authors who contributed articles to this issue: Ms. Victoria Baquerizo Lozano, Commander Svein Lystrup, Mr. Vincent Roobaert, Captain Audun Westgaard, Mr. David Nauta, Commander Wiesław Goździewicz and Colonel Gilles Castel, we are able to produce this 54 page edition offering three articles about training and exercises and one about the topic of self-defence from a French perspective that is consistent with the thematic approach of this issue. Additionally, we’re publishing the results of the survey that shows your views about the NATO Legal Gazette, providing an article about the NATO legal knowledge sharing portal —LAWFAS— that is open to NATO personnel and legal personnel in NATO nations, description of the NATO Special Operations Headquarters (NSHQ), spotlighting three members of our NATO legal community, saying hail and farewell to our arriving and departing colleagues, and close with a calendar of a few upcoming NATO events.
In this special edition, we bring to you a collection of articles from the thirty-eight published issues of the NATO Legal Gazette so far. These articles were recently referenced, as reading material, at the “NATO Legal Advisor Course” (4-8 April 2016) and “NATO Operational Law Course” (18-22 April 2016), in NATO School Oberammergau, Germany, and are listed here in a thematic order.
The “NATO Legal Advisor Course” and the “NATO Operational Law Course” at the NATO School Oberammergau are the only courses available in NATO that provide education and training tailored to a NATO lawyer’s needs. NATO legal advisors and legal personnel, as well as national lawyers working closely with NATO, are introduced to the NATO structure and the role of a NATO legal advisor. They are acquainted with the NATO Treaties and International Agreements and the main issues arising from their implementation. They benefit from the lectures of experienced speakers, all of which are Subject Matter Experts (SMEs) in specific fields of NATO Administrative Law and NATO Operational Law, such as visiting forces jurisdiction, NATO claims, NATO operations and exercises, targeting, rules of engagement, NATO cyber law and others.
To complement the lectures and the material provided during the NATO School legal courses, the NATO Legal Gazette is a very useful tool of reference. Throughout ten years of publication, the NATO Legal Gazette has presented high quality articles and thorough reviews on various issues of concern to NATO. The NATO Legal Gazette authors are highly experienced legal practitioners and scholars with wide knowledge on NATO Legal matters.
Their articles remain valuable as they comprise the expertise of NATO practice and academic research and understanding that a new NATO lawyer could use to build his/her future career. In this way, the NATO Legal Gazette achieves its main goal and reason of existence; to serve as an educational tool in the NATO legal community and beyond.
Autumn brought us a number of interesting developments in the international legal scene. In September the United Kingdom hosted in Wales the NATO summit. Due to Russia’s continued aggressive actions against Ukraine, as well as turbulent developments in the Middle East and growing instability in North Africa, the North Atlantic Council met at the Heads of State and Government level to declare the need for a stronger and more effective Alliance.
The world leaders discussed a number of important issues, including greater readiness, the area of cyber, and the need to increase national defence spending. Cyber threats, attacks and fundamental cyber defence responsibility of NATO to defend its own networks and assist Allies received a detailed discussion. You may read about the outcomes of their discussion in four paragraphs focused on cyberspace in the Wales Summit Declaration.
Because of the growing importance of cyber issues we are bringing you the 35th issue of the NATO Legal Gazette topically focused on Legal Issues related to Cyber.
As an introduction to the topic, our colleague from JFC Brunssum CAPT Enrico Cossidente provides you with a snapshot of the legal aspects of cyber and cyber-related issues affecting NATO. The Jus Ad Bellum part of cyber is addressed by Ms Florentine de Boer in her article examining the threshold of armed attack in light of collective defence. Our colleagues from NATO Cooperative Cyber Defence Centre of Excellence (CCD COE) Mr Pascal Brangetto, Mr Tomáš Minárik and Mr Jan Stinissen bring you their views on the legal implications of a shift from active cyber defence to responsive cyber defence.
Jus In Bello area is covered by one of the internationally recognised experts on the Law of Armed Conflict, Dr Gary Solis, who contributed with an article about cyber warfare and NATO legal advisors. In addition, Ms Hanneke Pitters provides her views on the significant differences amongstscholars as to what constitutes direct participation in hostilities in cyberwarfare.
As usual, we provide you with an article about a NATO entity. This timeour colleague from the CLOVIS team Ms Annabelle Thibault prepared anarticle about Allied Command Transformation Staff Element Europe (ACT SEE).
Furthermore, because of the importance of better understanding thehuge topic of cyber, we bring you two book reviews. One is provided by MrVincent Roobaert who examines Marco Roscini’s book “Cyber Operationsand the Use of Force in International Law” and the second is by Ms StanilaDimitrova who examines a book edited by our former CCD COE colleague DrKatharina Ziolkowski “Peacetime Regime for State Activities in Cyberspace:International Law, International Relations and Diplomacy.” This is followed byour regular sections like the Spotlight that introduces our new NATOcolleagues, the Hail & Farewells, and information about upcoming events oflegal interest.
Continuing developments in Ukraine require NATO’s vigilance as do the many other security threats that serve to remind NATO of its core principles and legal basis, such as democracy, individual liberty, and the rule of law, as enshrined in the North Atlantic Treaty.
Spurred on by the recent developments on the international scene and also by the celebration of the North Atlantic Treaty’s sixty-fifth anniversary, we offer you one of our most substantive issues yet. The first article by Sylvain Fournier and Lewis Bumgardner, titled Article 5 of the North Atlantic Treaty: The Cornerstone of the Alliance, inspired this issue of the Legal Gazette dedicated to “NATO Legal Cornerstones.”
Although Article 5 of the North Atlantic Treaty is the most well-known, it is not the Alliance’s sole legal cornerstone. To highlight other legal foundations, we present an article on NATO Status Agreements as well as Memorandum of Understanding, NATO’s most frequent tool for concluding agreements. These are written by two of NATO’s leading practitioners on this topic, Mette Hartov and Andres Munoz. Finally, in our “Questions On” section, Frederic Tuset-Anres provides an illuminating viewpoint to key legal questions on NATO Centres of Excellence.
In the operational law arena, I authored a short overview on the evolution and legal framework for conducting NATO operations. The ACO Legal Adviser, Thomas Randall contributs his views on the legal authority of NATO Commanders. With Mr. Randall’s retirement this summer, after 40 years of exceptional service and professional experience at US and NATO posts, it is an honour to provide his article on the legally delicate role of the NATO commander. And by its publication capturing his masterful knowledge and experience as SACEUR’s Legal Adviser.
As usual, we provide an article about CLOVIS with an update of its 2014 activities; a book review on the International Court of Justice (an international legal cornerstone in its own right); a Spotlight introducing our new NATO colleagues; Hail & Farewells; and, finally, information about upcoming events of legal interest.
Issue 33 of the NATO Legal Gazette is the first of our four 2014 planned Gazettes’ issues on NATO and EU relations.
NATO and the EU each have 28 member nations. 22 of these nations are members of both organizations, while six members of each organization are not members of the other.1 This mixed representation naturally causes overlaps in the legal regimes that apply to some but not all of the NATO and EU members.
In four different articles we present you with different points of view on NATO and EU relations. Firstly, Mr. Catalin Graure provides you an analysis of the compatibility of legal regimes surrounding both international organisations. Secondly, Dr. Frederik Naert provides you with an EU perspective on general and legal considerations related to EU and NATO relations. Thirdly, our NATO practitioners Ms. Mette Hartov and Mr. Andres Munoz describe the EU’s exemption of NATO International Military Headquarters from its residency and visa requirements. Finally, Mr. Siegfried Dohr provides an overview of NATO and EU cooperation from a military perspective.
The interactions of NATO with the EU are not a matter of academic discussion but rather of significantly increasing practical importance. Under the new heading of “Practitioner’s Corner,” Ms. Mette Hartov kindly shares with us her reflections on current issues encountered in the NATO legal practice. We are fully aware of your need of a pragmatic approach towards a number of topics that you are addressing daily. For this reason, we are hoping to keep delivering to you future articles from a practitioner’s perspective.
Issue 34 will discuss NATO’s legal cornerstones. Following our usual structure, this issue provides an article about a NATO organisation: Questions on NCI Agency; information about a CLOVIS feature called Workspace; a book review of International Law and the Classification of Conflicts; Spotlight introducing our new colleagues in NATO, hail & farewells and information about upcoming events.
The 32nd issue of the NATO Legal Gazette is focused solely on the NATO Legal Conference hosted by the Ministry of Defence of Estonia. The extraordinary support and personal attention provided by the Minister of Defence Mr Urmas Reinsalu and the Ministry’s high-level conference team composed of Ms Mari Kruus, Adviser to the Ministry, Ms Ingrid Muul, Deputy Director of the Legal Department, and Ms Silvi Palmet, Chief Protocol, ensured the Conference’s great success as a memorable professional event.
This, our eighth annual Conference, took place in beautiful Tallinn from 24 to 28 June with the topic “Responding to Change – Legal Challenges in the Future Security Environment.” Just nine months after the successful 2012 NATO Legal Conference in Tirana, Albania, a record 142 participants journeyed north to enjoy the hospitality, friendship and wonderfully long summer days in this historic capital of Estonia.
For all of you who attended and all of you who could not be with us physically in Tallinn to benefit from the excellent speakers and discussions this issue provides highlights of the Conference.
First, the Executive Summary Report will provide you an overview of each speaker and panelist. Second, you will have pleasure of reading contributions from three senior legal authorities: Mr. Peter Olson, Legal Adviser and Director of Legal Affairs, NATO HQ, Brussels; Mr. Stephen Rose, former Allied Command Transformation (ACT) Legal Adviser, Norfolk; Mr. Stephen Mathias, the Assistant Secretary-General for Legal Affairs in the UN Office of Legal Affairs, New York.
NATO’s primary purpose and values are set out in the North Atlantic Treaty, first signed on 4 April 1949 in Washington D.C. by representatives of its twelve founding member nations.
The intervening decades have seen the accession of further members, and a series of changes to the security environment and to the technological means of warfare, to name only a few. Yet, the North Atlantic Treaty with its 14 brief articles remains the bedrock document of the Alliance.
In order to mark the 70th anniversary of the signing of the Washington Treaty, the Legal Offices in NATO Headquarters International Staff, in SHAPE, and in HQ SACT have, in cooperation with Emory Law School, coordinated a publication providing a current commentary to the Washington Treaty.
The publication is a special edition of Emory International Law Review and it would not have been possible without the tireless and meticulous editing and assistance provided by the editorial board of the Emory International Law Review.
The special edition is an Emory International Law Review publication and remains subject to Emory International Law Review copyright and permissions policy. All articles bear a disclaimer and while this is not an official NATO publication or collection of official NATO positions it is regarded to be a welcome contribution to understanding the context of the North Atlantic Treaty and the origins of what we now simply refer to as NATO.
The CD&E Handbook provides basic information for the concept developer based on approved NATO guidance and policy as well as best practice derived from a rich history of CD&E experience.
Although designed to address Alliance CD&E activities, it has been developed with a vision of informing NATO nations, our partners and other nations and organizations.
Accordingly, significant effort has been taken to ensure applicability of the methodology across the broadest user community.
You can download the handbook in pdf format by clicking the icon on the left, or here.
To be informed on the revisions of the handbook and on CD&E in NATO you can request to be added to our mailing list by sending an e-mail to [email protected]
Regional Perspectives Report on the Indo-Pacific
In line with NATO’s effort to comprehend the future strategic and military environment, the Strategic Foresight Regional Perspectives Report on the Indo-Pacific represents a brilliant resource, together with the on-going series of Regional Perspectives Reports. The initial research on the Indo-Pacific region involved NATO nations, NATO entities, academia, think tanks and a talented group of 15 Subject Matter Experts from around the world who presented their findings to nearly 100 participants.
Key amongst the findings set up within the Indo-Pacific Perspectives Report is that China is not the only challenge facing the region, but it will likely remain the dominant influencer for the foreseeable future. Politically, the Indo-Pacific landscape is likely to convert into a predominant Chinese attempt to federate or potentially constrain split countries through economic, diplomatic, cultural and military levers putting at risk the rule of law, international order, democratic values, maritime freedom, sovereignty and territorial integrity. Vis-à-vis China, the region is likely to become an increasingly competitive space in terms of sovereign territory claims, resource exploitation, infrastructure development and free maritime access. The increasing militarization of the area is obviously the main concern for the Alliance, because it makes direct confrontation with dramatic economic and geopolitical consequences possible. Maritime capabilities are likely to continue to grow, especially for China, putting at risk freedom of navigation. The militarization of disputed islands, nuclear proliferation, a possible invasion of Taiwan, the positioning of an emerging India, the use of Cyber, Space and cognitive warfare will create increased possibilities for tension, escalation, and even direct or indirect conflict. Before that, the increasing number of defense partnerships and the constant rising of defense budget will convert the Indo-Pacific into the most militarized area of the world.
For more Regional Perspectives Reports click here.
The NATO Open Perspectives Exchange Network (OPEN)
OPEN stands for OPEN Perspectives Exchange Network, which is a network for understanding the modern security environment from other than military point of view run by NATO Allied Command Transformation’s Plans and Policy Branch.
OPEN is a strategic thinking tool that seeks alternative perspectives on matters of importance to NATO and others. OPEN aims to share quality products on important topics and understand things from our reader’s points of view. OPEN is based on a model that was extremely successful – the Civil Military Fusion Centre (CFC) and works with freelance expert writers who may fit into the following criteria: non-conventional military expert, non-NATO employee, published and proven author, and an acknowledged subject matter expert in their field.
OPEN products are not classified and openly sourced. OPEN products can be found here.