On January 15, 2003, the United States formally requested that the North Atlantic Treaty Organization ("NATO") begin planning to defend one of its members, Turkey, from any counterstrikes launched by Iraq in the event of a war with Iraq.1 France, Germany, and Belgium, concerned that such a move by NATO would send a message that war with Iraq was inevitable, resisted the request.2 In response, Turkey, the only member of NATO that shares a border with Iraq, pressed the issue by invoking Article 4 of the North Atlantic Treaty,3 which provides that "[t]he Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened."4 Despite Turkey's plea for collective defense, which is the purpose of NATO, France and the others continued to block any planning for almost a month.5 Because NATO operates under consensus decisionmaking, the votes of these three nations barred defensive preparation by NATO in support of Turkey.
NATO finally resolved the issue by moving the decision into its Defense Planning Committee ("DPC"), thereby circumventing France's veto.6 With France excluded, Germany and Belgium compromised and agreed to support the measure.7 As a result, NATO committed to provide some assets for the defense of Turkey without the full consensus of its members.
NATO's decision highlights a conflict between NATO's requirement of unanimity in decisionmaking and its obligation to provide collective defense. This development examines the decision and attempts to answer the following questions: Did NATO's decision without France's consent violate the North Atlantic Treaty? Did France violate the treaty by refusing to fulfill its obligation to defend a fellow NATO member? What does NATO's decision imply for the future of NATO?
I. DID BYPASSING FRANCE VIOLATE THE NORTH ATLANTIC TREATY?
NATO, as an alliance among sovereign nations, reaches decisions by the consensus of its members: bypassing France appears to violate established custom. Article 9 of the North Atlantic Treaty created a council consisting of representatives of every member nation.8 The North Atlantic Council, as it is called:
is the only body within the Alliance which derives its authority explicitly from the North Atlantic Treaty. . . . All member countries of NATO have an equal right to express their views round the Council table. Decisions are the expression of the collective will of member governments arrived at by common consent.9
While the wording of the treaty does not explicitly state a consensus or unanimity requirement, the status of the member nations as sovereign states implies it.10 Further, the practice has been consistently followed in the Council since 1949,11 arguably making the procedure a custom, which is another source of binding international law.12
While the preceding cursory examination of international law appears to condemn NATO's action, two arguments convincingly defend NATO's procedural device: first, France consented to NATO making some military decisions without its approval when it withdrew from NATO's military structure in 1966, and second, NATO's remaining military structure has the authority to make defensive plans through the DPC when there is unanimous consent within the DPC.13
A. THE IMPACT OF FRANCE'S WITHDRAWAL FROM NATO's MILITARY STRUCTURE
In early 1966, French president Charles de Gaulle withdrew France from NATO's military organization.14 As a consequence of its withdrawal, France relinquished its share of authority over that organization. In a successful attempt to keep France involved, the alliance responded by emphasizing both the political and military functions of NATO.15 While France did remain a party to the treaty, it decided to fulfill its obligations while retaining direct control over its military.16
France's partial break with NATO, however, also resulted in France's withdrawal from the DPC. …