Analysis of United States’ and its Allies (NATO) invasion of Afghanistan in October 2001 under International Law

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Having looked at the concepts of international law as they relate to the discussion in hand, it is now necessary to expand on points raised by examining the mechanisms of international law. It has already been implied that international law is not necessarily mandatory. It is now necessary to find out whether that is entirely the case or whether a state can be obliged, or forced, to adhere to principles or rules to which it has not consented and under what circumstances that may occur. 

According to EISIL (2008), the United Nations Charter is ‘both an international treaty and the constitution of the United Nations organisation’. The United Nations came into being in 1945 when the Charter of the United Nations was signed in San Francisco by the representatives of the original member states. The purpose of the United Nations ‘is to bring all nations of the world together to work for peace and development, based on the principles of justice, human dignity and the well-being of all people. It affords the opportunity for countries to balance global interdependence and national interests when addressing international problems.’ (United Nations: an introduction for students) 

The Charter of the United Nations sets out guidelines for international relations in the form of a constitution, however, its jurisdiction is limited to member states only and since the Charter of the United Nations grants all member states sovereign equality, they are only bound to adhere to the Charter if they choose to be. In other words, “states can do as they choose unless they have consented to a rule restricting their behaviour”. (Arend, 2003) International law is therefore not only hard to quantify, it is also not mandatory.  

The United Nations operates several departments including the Security Council and the International Court of Justice. The Security Council does not have its own standing army but borrows troops from member states when necessary to carry out its functions. The Security Council is designed as a means of peacekeeping and the United Nations Charter sets out what the Security Council may do and what authority it has. (UN Security Council, 2004 – 2008) 

States becoming members of the United Nations consent to the moral authority of the UN Charter, however, in the case of The Republic of Nicaragua v. The United States of America (International Court  of Justice, 1984), the United States argued that it did not recognise the International Court of Justice, a branch of the United Nations. The ICJ found against the United States which then blocked attempts at enforcement.  (Morrison, 1987) . The Nicaragua case demonstrates the limits of the authority which the United Nations commands and highlights the fact that it requires the consent of its member states in order to operate effectively.  

The invasion of Afghanistan was undertaken not by the United States alone but in co-operation with several of its fellow NATO member states. NATO is a military alliance which was established in 1949 with the purpose of creating an alliance of countries who agreed to assist with one another’s security and defence. Its relationship with the United Nations is informal, although the Secretary General of NATO reports to the UN Secretary General on the progress of NATO lead operations and since 1992 the two organisations have intensified their practical co-operation with one another (NATO, 2007). Furthermore, NATO falls under the definition of Article 52 of the UN Charter of a ‘regional body’ which has an obligation to act in accordance with the Charter (Hassan, 2004). Although it is necessary to understand the hierarchy between the UN and NATO, it is also necessary to continue to bear in mind the principle of consent which limits requirement of a state, or in the case of NATO, a group of states, to adhere to the United Nations Charter and to respect that hierarchy when considering the application of international law.