Doc. 11302 Report – assist states subject to increased terrorist threats as a result of their support for the campaign against terrorism; – provide increased security for the United States and other allied facilities on NATO territory; – backfill selected allied assets in NATO’s area of responsibility that are redeployed in support of counterterrorism operations; – provide blanket overflight clearances for the United States’ and other allies’ aircraft for military flights related to operations against terrorism; – provide access to ports and airfields on NATO territory, including for refuelling, for United States and other allies for operations against terrorism; – deploy elements of the NATO Standing Naval Forces to the eastern Mediterranean, if called upon; – deploy elements of NATO Airborne Early Warning Force to support operations against terrorism, if called upon. 92. The first criterion on which these measures were extraordinary was in the nature of their conception. According to a former senior NATO official, “in contrast to many other international organisations, responsibility for drafting documents and resolutions in NATO lies with the International Staff”.47Yet as Lord Robertson reiterated in his statement, “these measures were requested by the United States following the determination that the 11 September 2001 attack was directed from abroad”.48Indeed, as our American sources told us, even the exact language in which the actual measures were formulated and agreed upon was conceived, drafted, re-drafted and put forward unilaterally by the United States. 93. Second and most significant, these measures do not constitute an agreement to undertake collective self-defence.49In my analysis these measures more closely comprise the very permissions and protections the United States had sought for itself as it embarked on its own military, paramilitary and intelligence-led counter-terrorism operations.50Just as President Bush had done on 17 September 2001, the NATO Allies, on 4 October 2001, afforded the CIA a mandate to pursue its “war on terror”, without a published text. 94. Council of Europe officials attempted to obtain a copy of the “agreement” of 4 October 2001 from NATO Legal Services on several occasions.51In a response dated 6 April 2006,52NATO’s Legal Adviser, Mr Baldwin De Vidts, submitted that the “agreement” in question was actually more properly characterised as a set of “decisions taken by the North Atlantic Council on that date”; he explained: “It is to be noted that your request does not relate to a formal document signed by the member states but to an internal decision noted in a corresponding decision sheet drawn up by the international secretariat to reflect the decisions as taken by the Council on that date.” 47. See Buckley, “Invoking Article 5”, supra note 38. 48. See statement to the press by NATO Secretary General, Lord Robertson, 4 October 2001, supra note 44. 49. I take the view that only the last two measures could be considered as responses in the category of “classic” collective self-defence. In recognising this point, one observer has argued that a broad approach to military and nonmilitary measures was consistent with the United States approach to counter-terrorism: see Reichard, supra note 41, at p. 188. I would add, however, these measures are somewhat ceremonial in character; both of them begin with a phrase “that the alliance is ready to deploy”, and the first of them states that the purpose of such a deployment would be “to provide a NATO presence and demonstrate resolve”. The “classic” self-defence provisions therefore stop short of any genuine commitment to military action. The real practical substance of these measures is to be found in the other clauses. 50. In its published material, NATO makes clear that the period after the invocation of Article 5 accommodates a range of individual and collective policy choices: “Any collective action by NATO will be decided by the North Atlantic Council. The United States can also carry out independent actions, consistent with its rights and obligations under the UN Charter. Allies can provide any form of assistance they deem necessary to respond to the situation.” See NATO, What is Article 5?, available at http://www.nato.int/terrorism/five.htm. 51. I refer here to various individual items of correspondence sent to Mr Baldwin De Vidts, NATO Legal Adviser, by both Mr G. Buquicchio, Secretary of the European Commission for Democracy through Law (Venice Commission), and Mr A. Drzemczewski, Head of Secretariat of the Parliamentary Assembly Committee on Legal Affairs and Human Rights (AS/ Jur). Copies of all correspondence are on file with the rapporteur. 52. Letter to Mr G. Buquicchio, Secretary of the Venice Commission, from Mr Baldwin De Vidts, NATO Legal Adviser, Reference CJ(2006)0230, dated 6 April 2006. Regrettably this response came three weeks after the issue of the Venice Commission’s opinion on the matter, dated 17 March 2006. See the reference to this correspondence in the opinion on the international legal obligations of Council of Europe member states in respect of secret detention facilities and inter-state transport of prisoners, adopted by the Venice Commission at its 66th Plenary Session, 17 March 2006; Opinion No. 363/2005, CDL-AD(2006)009 at paragraph 4. 20