united-states treaty
Can the US government be compelled to honor the NATO treaty?
<p>The <a href="https://en.wikipedia.org/wiki/North_Atlantic_Treaty" rel="nofollow">North Atlantic Treaty</a> (which establishes NATO) commits each member to mutual defence in case any member is attacked. The treaty has been ratified by the US, so it is legally binding.</p>

<p>My question is, can the US government be legally forced to honor this? For example, if hypothetically a NATO country is attacked and the US refused to help (for some reason, e.g. it has an isolationist President or it doesn't want to escalate the conflict into a world war), can someone go to a US court and make it force the US government to do it? For example, the court might achieve this by making people in the government go to jail if or pay a lot of money they don't do it.</p>

<p>First, the <em>practical</em> answer is no: even if they ordered the President to go to war, the President can just refuse. The military is generally in the habit of listening to orders from the President, <em>particularly</em> if the question is "do we or do we not go to war;" the courts do not have the power to command the armed forces. They could try issuing an injunction instructing the military to go to war, but the injunction would be ignored. They could try holding people in contempt, but the President is in charge of almost all federal law enforcement (and can pardon criminal contempt), so that's not going to work. And even if the President <em>could</em> be punished for contempt, if he thinks intervening will result in the annihilation of the human race in a thermonuclear war, he will not issue the orders. </p>

<p>But that's assuming the courts would even try to intervene. They wouldn't. Courts don't generally want to issue orders that they <em>know</em> will be ignored. In this case, the relief being sought (i.e. an order to do something) is a kind of relief that is up to the discretion of the court. So even if a court would be legally justified in issuing that order, they have an easy out. (For damages claims, Congress can just refuse to appropriate any money to satisfy them; no federal money can be spent unless Congress appropriates it).</p>

<p>There's an even earlier out, though. Courts are not political branches of government; one of the basic rules of jurisprudence is that courts should not get involved in deciding something that's really up to the elected branches. <em>Baker v. Carr</em> had a list of factors to consider:</p>

<ol>
<li>a textually demonstrable constitutional commitment of the issue to a coordinate political department;</li>
<li>a lack of judicially discoverable and manageable standards for resolving it;</li>
<li>the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;</li>
<li>the impossibility of a court's undertaking independent resolution without expressing lack of the respect due  coordinate branches of government;</li>
<li>an unusual need for unquestioning adherence to a political decision already made;</li>
<li>the potentiality of embarrassment from multifarious pronouncements by various departments on one question.</li>
</ol>

<p>Foreign relations in general is very often grounds for deference, as is military strategy. Courts are utterly unqualified to determine proper diplomatic or military actions to take, or to evaluate whether the President's actions were enough to meet the requirement of "do what's necessary to restore security;" foreign policy is a case where a country <em>needs</em> a unified face (because other countries aren't particularly willing to deal with US internal politics), and where the courts could easily screw up what the government is doing; and whether to send Americans to war is a question that is <em>clearly</em> a matter for those accountable to the people. So, federal courts cannot analyze this question to decide whether or not the government has done anything wrong; it's for the other two branches to decide.</p>

<p>Under which law? International law? or US law?</p>

<p>Since you mentioned suing in US courts, US courts are only competent to rule on matters of US law. But it's not clear that a mutual defense provision of a treaty is a matter of US domestic law in the first place.</p>

<p>Second, the North Atlantic Treaty doesn't actually require any specific action be taken.</p>

<blockquote>
  <p>Article 5</p>
  
  <p>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, <strong>such
  action as it deems necessary</strong>, including the use of armed force, to
  restore and maintain the security of the North Atlantic area.</p>
</blockquote>

<p>(emphasis mine)</p>

<p>So basically, when an armed attack against a party occurs, it is up to each party to decide what action "it deems necessary" to take to assist the attacked party. This could include use of armed force, but also might not. A party could "deem" whatever it wants to as the necessary action, including, possibly, taking no action at all, or just making verbal statements. Every party will just deem whatever action it plans to take as the necessary action. Therefore, it's not really possible for a party to fail to fulfill this provision of the treaty.</p>

<p>Also, the Constitution grants the President the power to command the military, and broad powers over foreign policy, and grants the Congress the power to declare war. The US Constitution supersedes treaties as far as US law is concerned (<a href="https://en.wikipedia.org/wiki/Reid_v._Covert" rel="nofollow">Reid v. Covert</a>), so US courts could not rule that decisions on how to use the military or foreign policy decisions or the decision whether to declare war are illegal because of a treaty.</p>

<p>As a practical matter, it would have to be an amazing scenario before there was a chance in hell that a court would order it.  Some of the basic legal issues: great deference to the President in matters of foreign affairs; ratification of treaties creates an international law obligation but not a necessarily a domestic law obligation; international law is part of the law of the United States under the Charming Betsy doctrine but United States courts rarely care about it; and courts recognize that they should not issue orders which have a serious risk of being not followed.</p>

<p>In theory, it is possible that a court could issue an injunction or perhaps that Congress could impeach the President if his inaction is arguably treason, for example.  If the President issues a pardon for an action that he causes knowing in advance it is in violation of law, then there would be a legal question as to whether his pardon in advance is itself conspiracy to commit an impeachable crime.  So if you had a real runaway president who was clearly making decisions that were directly treasonous, for example, or ordering others to ignore a court order and then pardoning them, he could be removed by impeachment and support for NATO could be ordered.  But if his reasons were colorably for the primary foreign policy interests of the nation and the citizenry, there's no way someone's forcing his hand.</p>

<p>The armed forces do follow the order of the Commander in Chief, but they do that because they, and especially the officer corps, have great respect for the civilian rule of law.  They're fighting to defend civilian life and civilian rule.  And they've seen what happens in countries where you don't have that.  That's part of why they take orders even from presidents they really dislike and why they show respect for the office.  Facing a court order to defend an ally and a commander in chief who is committing substantive crimes contrary to the interests of the country, my money is on them defending the ally.  (Or maybe resigning.)</p>
