Scope and Historical Developments of Article 6

• Citation: Vol. 34 No. 0
• Publication year: 2019
• topic: Military Law

Scope and Historical Developments of Article 6

Antoaneta Boeva

Ivan Novotny

SCOPE AND HISTORICAL DEVELOPMENTS OF ARTICLE 6^†

Antoaneta Boeva^*

Ivan Novotny^**

Article 6¹

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

1. on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France,² on the territory of Turkey or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;
2. on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.³

Introduction

As stressed many times in this special series of articles and commentaries, the North Atlantic Treaty ("Treaty"), which celebrates its 70th anniversary this year, is in many ways unique. With its only fourteen articles, it has been providing the very basis of functioning of NATO throughout the seven decades

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since its signature. None of the articles of the Treaty were ever amended except one, Article 6. This article goes to the heart of the obligation for NATO's collective defense, as it sets out the territorial reach of the obligation. It has been subject to modifications to both its text and scope throughout the history of the Alliance, and these modifications are a testament to the Treaty's adaptability to the times.

In this commentary, the original and current scope of the Article 6 of the Treaty will be examined and put into perspective. Historical declassified documents are providing a valuable insight into the original objectives of the Parties, and a basis for the analysis of all the modifications of Article 6, formal and informal. This commentary also discusses the necessity of the modifications, from both a political and legal point of view; and it looks through the lens of Article 6 over territories of the North Atlantic areas and the Pacific which have been subject to some uncertainty or questions. Finally, it looks at the contemporary relevance of Article 6.

A. Scope and History of Article 6

Seventy years ago, when the Treaty was signed in 1949, the text of Article 6 was not the same as it is today. Being only part of the Treaty to have been ever amended, Article 6 is a testimony, first and foremost, to the evolution of the historical context in which it was conceived and denotes a certain interdependence—if not mutual reliance—on the collective defense regimes already in place. The original text of Article 6 as drafted in 1949 stated:

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack on the territory of any of the Parties in Europe or North America, on the Algerian departments of France, on the occupation forces of any Party in Europe, on the islands under the jurisdiction of any Party in the North Atlantic area north of the Tropic of Cancer or on the vessels or aircraft in this area of any of the Parties.⁴

1. North Atlantic Area

The Treaty was always intended to have strict geographical limits when it came to bringing Article 5 into operation. Historic documents from the drafting

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of the Treaty show that this intention was generally shared.⁵ Thus, describing the North Atlantic area in general terms rather than by definitive lines on a map was the preference of the states during the drafting of the Treaty.⁶ "North Atlantic area" was finally chosen as the general term for the zone that the Treaty was to cover.⁷ The parties found inspiration in the previous collective defense treaties—the 1947 Rio Treaty and the 1948 Brussels Treaty. The former describes its area as "the territory of an American State."⁸ The latter treaty is even briefer and refers to the area with a potential invocation of a collective self-defense as "Europe" without any limitations provided further in the treaty whatsoever.⁹

2. Borders of the Area

The Treaty itself determines a very clear southern border of the "North Atlantic area"—the Tropic of Cancer.¹⁰ The Tropic was considered a logical southern limit to the area, and it did not need to include the independent republics in the Caribbean or the islands in that area under the jurisdiction of any of the Parties, since they lied in the zone covered by the 1947 Rio Treaty.¹¹ Interestingly, while the southern border is clearly set, a northern border of the North Atlantic area is not mentioned. For example, in the 1947 Treaty of Rio the parties agreed: "the region to which this Treaty refers is bounded as follows: beginning at the North Pole...."¹² The Treaty has no such a provision and the northern border is not determined even implicitly.¹³ In fact, no official records

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from the drafting of the Treaty indicate that any deliberation on this issue took place.

3. Occupation Forces

A further element of the historical dating of Article 6 is the mention of "occupation forces of any Party in Europe."¹⁴ Now obsolete, this provision of Article 6 was subject to a note during 1949 exploratory talks where it was noted that for the purposes of Article 6 the British and American forces in the Free Territory of Trieste as well as in Germany are understood to be occupation forces.¹⁵ It was felt that an armed attack on the occupation forces should accordingly be specifically mentioned.¹⁶

4. Vessels and Aircraft

"North Atlantic area" north of the Tropic of Cancer as used in Article 6 refers to the general area of the North Atlantic Ocean north of the line, including adjacent seas and airspaces between the territories covered by the Article.¹⁷ That of course means, that an armed attack on vessels or aircraft in such seas or airspaces could trigger collective defense mechanism.¹⁸

While not reflected in the text of the treaty, an important element of clarification was brought during the drafting of the Treaty. Not all incidents in the relevant seas or airspace are alike, and during the drafting of the Treaty the parties explained that: "with particular reference to attacks on ships or aircraft, but also with respect to other attacks, it was clearly understood that Articles 5 and 6 were not intended to apply to minor sporadic incidents but only to attacks of sufficient gravity to endanger or breach international peace and security."¹⁹ This clarification is without doubt not just another reference to the Charter of

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the United Nations but also a precaution, capturing perhaps more realistically the uncertainties, which the passage of time could bring.

B. Amendments and Modifications of Article 6

It is also the passage of time which led to the amendment of Article 6. In a certain sense, the Treaty has already been amended sixteen times, and subject to ratification of the Accession Protocol for the Republic of North Macedonia, this will happen again.²⁰ Each time a state becomes a new NATO member, it also becomes a Party to the Treaty. The accession is done through the signature of Protocols to the Treaty, which, under international law, amend and modify the Treaty.²¹ Of course, each time a new Ally is added, the geographical space covered by Article 6 is expanded to cover the new Ally's territory. This is an example not of a treaty amendment in the strict sense, of course. The text itself was formally amended only once by such an accession protocol.²² It was the very first Protocol for the accession of Greece and Turkey, which amended and modified the text of Article 6 in 1951.²³

Aside from this one and formal amendment, Article 6 was also modified informally. It was done so by a declaration by the French Representative in the North Atlantic Council in 1963.²⁴ Both formal and informal modifications are discussed below.

1. Greece and Turkey

Article 6 has been modified upon the accession of Greece and Turkey in 1951, and this is reflected in the text of the treaty with a footnote which states that: "(1) The definition of the territories to which Article 5 applies was revised

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by Article 2 of the Protocol to the North Atlantic Treaty on the accession of Greece and Turkey signed on 22 October 1951."²⁵

The Protocol itself stipulates that:

If the Republic of Turkey becomes a Party to the North Atlantic Treaty, Article 6 of the Treaty shall, as from the date of the deposit by the Government of the Republic of Turkey of its instruments of accession with the Government of the United States of America, be modified to read as follows:

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

1. on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France, on the territory of Turkey or on the islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;

2. on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.²⁶

The Republic of Turkey deposited its Instrument of Ratification of the North Atlantic Treaty on February 18, 1952, and, consequently Article 6 of the Washington Treaty was modified as from that date, in accordance with the language as mentioned in Article 2 of the Protocol to the North Atlantic Treaty on the Accession of Greece and Turkey.²⁷

2. Subsequent Enlargements

Subsequent enlargements of the Alliance resulted in the signature of the corresponding Protocols which, although they did not modify the text of Article

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6, modified the scope...