CHAPTER IV: THE DEFENSE LEGAL FRAMEWORK
This chapter contains a summarized description of the major regulatory conditions governing defense activities, in general, and military actions in particular.
References made below are not only a formal legal framework but also represent the highest political guidelines for National Defense in the Argentine Republic.
1. Defense and the rule of law
Since democratic institutions were restored in late 1983, the Argentine Republic has been under the rule of law. This means that all activities in the public sector are ruled by the legal system governing the Argentine Republic, either through local laws or international instruments. These affect the country either because they have been incorporated in national laws or as a result of our compliance with the "pacta sunt servanda" principle which guides our international actions.
Major legal instruments governing the Ministry of Defense are summarized below. Later, we will analyze their main characteristics when specifically applied to certain issues. Also, other highly technical regulations and commitments will be mentioned later in this book when considering the aspects involved therein.
2. Domestic references
The National Constitution
The National Constitution sets the goal of "...providing for common defense" first in its Preamble, among the other constitutional objectives of our Nation. The articles of the Constitution further establish the duty of all Argentine citizens to arm themselves to defend the country and the Constitution, pursuant to the laws enacted by our National Congress for such purpose and decrees issued by the Executive Branch. Naturalized citizens are free to provide such service to the country for a period of 10 years after becoming Argentine citizens.
The National Congress has the constitutional power to authorize the Executive Branch to declare war or make peace, allow it to instruct retaliation measures, and permit foreign troops to enter our national territory and national forces to leave the country.
Congress also has the authority to organize the Armed Forces in times of peace and war and prescribes regulations for their organization and management.
Furthermore, Congress has the constitutional power to agree or disagree with the promotion of high-ranking officers of our Armed Forces as proposed by the President.
The constitution also confers on the President of the Nation the power to act as Commander in Chief of the Armed Forces and as such, to control, organize and distribute the forces as well as to provide for the use of the military instrument.
This set of regulations reflects the constitutional basis for our Armed Forces and the exclusive power of the Argentine Government over National Defense matters.
National Defense Act 23554
It was enacted in 1988. It establishes the legal, organizational and functional bases to elaborate, execute and control our National Defense, defining its goals and clearly distinguishing it from Domestic Security, which is ruled by another legal instrument.
The Defense Act sets forth the structure of the National Defense System and sets out its goals and responsibilities of its members. It also establishes the organizational guidelines for the Armed Forces and defines the fields of action of their commanding officers, the Chiefs of Staff of each Service, in favor of the Armed Forces jointness. This Act also establishes the basis for the National Defense Service, Territorial Organization and Mobilization.
Domestic Security Act 24059
It was enacted in 1992 and amended by Act 24194. It provides the structure required in the area of domestic security, basically involving the Security Forces (National Gendarmerie and the Argentine Coast Guard), the Federal Police and the police corps of such provinces that have decided to form part of the system, given the federal nature of our country. It establishes the Domestic Security Council, whose non-permanent members are the Minister of Defense and the Chief of the Joint Staff of the Armed Forces.
This Act sets out, in principle, the non use of the Armed Forces within the sphere of domestic Security (subsidiary principle), but establishes several events where the Armed Forces would have an eventual involvement in logistic support by providing weapons, supplies, health care, veterinary services, construction services, transport, and engineering and communications elements to Security and Police Forces (complementation principle).
The Act indicates such cases where the Armed Forces can exceptionally use combat elements to defend their own units or to restore Domestic Security, previously declaring the "State of Siege", according to the constitutional procedure to this end.
Armed Forces Reorganization Act 24948
It was enacted in 1998 and sets out the political and organizational basis to carry out the reorganization of the Military in the medium term, establishing its basic principles, general modalities for the use of the Military Instrument, its organization, deployment, personnel, equipment and Funding.
The implementation of a five-year budget as from 1999 and a special budget allocation destined to Armed Forces modernization expenditures during that period are the most relevant aspects of this Act.
It also establishes a number of complementary tasks to be performed with certain deadlines.
The act also sets up a National Congress Committee, represented by both senators and representatives, to oversee the reorganization, as well as to make a review five years after the enactment of this Act, i.e., in 2003.
Military Personnel Act 19101
This act was passed in 1971: it is the last update of a series of Acts related to military personnel, the first of which was Act No. 4856 (enacted in 1905 and amended in 1945, 1950 and 1958). It defines the basic principles related to military personnel, such as the "military status", groupings, concepts such as "seniority and precedence", military retirement, separation or relief from active duty, ranks and the promotion system, suitability for service, recruitment, salary system and length of service calculations, among others.
Military Justice Code
It was established by the National Congress through Act 14029 in 1951, and was amended by Act 23049 in 1984. It meets the provisions of our National Constitution and the Argentine Criminal Code; that is, it does not represent any special personal venue.
The Code describes specifically military offenses, the organization and jurisdiction of military courts, court martial proceedings and the respective penalties.
Volunteer Military Service Act 24429
It was enacted by Congress in 1994 and superseded the previous mandatory system of conscripts, replacing it by a new system open both to men and women. It has allowed turning our Armed Forces into a completely professional organization, abandoning the previous scheme based on conscript service. The previous System of Conscript Act is still in force and is to be applied only under exceptional circumstances.
Directive for Joint Military Planning (Decree No. 1116/96)
Through this directive, the President of the Nation outlined the National Defense Policy updated guidelines and missions of the Armed Forces. Moreover, he established the application of a deterrent and defensive strategic policy in the sphere of Defense.
3. International commitments
As already mentioned, the characteristics of today's international scenario also influence our Defense in the legal sphere. As in the previous point, we will now deal with the major international instruments to which our country has adhered and will later mention more specific provisions when considering activities they apply to.
The United Nations Organization
Article 1 of the UN Charter states as its first objective the maintenance of international peace and security through collective measures aimed at preventing and removing threats to peace. Article 2, in turn, prohibits the threat or use of force against the territorial integrity or political independence of any Nation, defining the principle that international conflicts should be resolved by peaceful means.
Article 51 of the Charter clearly states the inherent right of every State to its legitimate defense, providing for the choice of an individual or collective defense.
Through the Security Council, the UN have the right to use force in order to maintain, restore or build peace in case other measures fail. At present, the enlargement of the Security Council is under discussion, a fact that has drawn the interest of several countries, including Argentina.
The Charter also promotes regional agreements and organizations to pursue the peaceful settlement of conflicts.
The Organization of American States
The first three articles of its Charter make reference to the goal of strengthening peace and security in the Hemisphere, and state that an aggression against an American State constitutes an aggression against all of them.
Having as one of its objectives the organization of joint actions in case of aggression, the OAS Charter aims at the implementation of "collective security" in the American continent. Some unsuccessful attempts in this sense were the creation of the IDB (Inter-American Defense Board) in 1942, and the TIAR (Inter-American Reciprocal Assistance Treaty), organized during the III Consultation Meeting of Foreign Ministers held in Rio de Janeiro in 1947.
The OAS also encourages the consolidation of the representative democracy, observes the principle of non-intervention, and promotes peaceful settlement of conflicts.
Its main objectives include an effective limitation on conventional arms.
International Law of War
Together with the The Hague Convention, the Law of War regulates the laws, uses and practices of war and establishes a legal method to conduct operations. However, this branch of law has not evolved much due to the increasing and widespread rejection of the use of force for conflict resolution.
International Humanitarian Law
The 1949 Geneva Convention and its Additional Protocols have established military conflict rules in relation with the management of casualties, the sick, shipwreck victims, prisoners of war, non-combatant civilians and the environment.
The IRCC (International Red Cross Committee) has played an essential role in this sphere.
Nuclear Weapons
The NPT (Treaty on the Non-Proliferation of Nuclear Weapons) seeks to reduce the threat of a nuclear war and prevent the number of countries that hold this kind of weapons from increasing. It also aims at preventing countries from developing nuclear weapons. It forbids those nations that already have them to transfer their technology and forces them to carry out actions in favor of nuclear disarmament. Under this treaty, non-nuclear countries must accept the safeguards of the IAEA (International Atomic Energy Agency).
On the other hand, the members of the Treaty for the Prohibition of Nuclear Weapons in Latin America (Tlatelolco Treaty) undertake to use nuclear power exclusively for peaceful purposes and also to prevent the introduction or development of nuclear weapons in the region. The Treaty establishes mechanisms to control its members' compliance with these obligations.
Other agreements on arms control
As a complement to the previous agreements, it is essential to include the following:
- Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction.
- Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction.
- Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological and Toxin Weapons, and on their Destruction.
- Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and their four Additional Protocols (untraceable fragments and weapons; mines and trap weapons, laser weapons and the like.)
Missile Non-Proliferation
Although this is not an international agreement, the MTCR (Missile Technology Control Regime) is another important reference, of which our country is an active member after the adoption of certain political decisions (including the de-commissioning of the "Condor" project) which enabled our country to join it.
Convention on the Law of the Sea
This Treaty was adopted within the UN framework and was ratified by Argentina through Act 24543. It defines criteria for the international regulation of the various maritime areas according to the coastal nature of each country. Besides the Territorial Sea and Contiguous Zone concepts, another important principle is sovereignty over resources within the Exclusive Economic Zone (EEZ) up to 200 miles from the baselines, and in the continental shelf, as defined by the Convention. Our country defined its Sea Spaces through Act 23968.
While this Convention does not specifically cover defense matters, it deals with issues of great concern for our defense, as it recognizes sovereignty and jurisdictions, among other matters.
The Antarctic Treaty
This treaty has been in force since 1961. At present, it constitutes a System that reserves the Antarctic continent exclusively for peaceful purposes and specifically bans military activities. However, this does not prevent the presence of military equipment or personnel for logistic purposes and scientific tasks. It is complemented by the Convention on the Preservation of Antarctic Living Resources, defined as the "rational use" thereof, and by the Protocol on Environmental Protection. The latter bans any kind of activities related with Antarctic mineral resources for a fifty-year term, as from its adoption in Madrid in 1991.
CHAPTER V: THE NATIONAL INTERESTS
Before we outline the national interests that our National Defense should pursue, we will highlight the values underlying those interests, according to the ethics that guide our Defense.
1. Underlying values
The preservation and strengthening of democracy, the fundamental rights and freedoms and the common well being of our people are the prevailing basic values of Argentine society underlying the interests supported by our Defense. These essential ideas have also been included in our Constitution.
As human beings undertake courses of action in pursuit of their goals, they find that life in society is the adequate context that enables them to develop their capabilities in order to achieve the goals they set for themselves.
Those goals are many and diverse, and life in a community, in liberty and harmony, requires a certain order that encourages their accomplishment: a fair social order, adjusted to the characteristics inherent to human behavior.
Life in society requires the rule of justice as social concept. While preserving the personal values of man (life, liberty, dignity, survival, etc.), the rule of justice should subject individual interests to the common well being of society as a whole.
Society therefore prescribes a set of rules aimed at harmonizing personal goals within a just social order.
When this scheme prevails within the frame of a democratic system, social peace is also achieved.
However, such order must be provided with a coercive capability, and this requires the government to establish a monopoly of the organized force.
All these concepts should not mislead us into thinking that military institutions should play a direct role in maintaining domestic peace. The concepts described in the previous chapter clearly state that a legal distinction exists between the fields of military and domestic security institutions. The limitations imposed on the eventual involvement of the military institutions in domestic security tasks were also pointed out.
However, it is important to emphasize that, underlying the specifically military missions that gave rise to the very existence of the Armed Forces, there is a set of basic values of the Argentine Nation that involve the Military as part of its society and political life.
The Armed Forces - whose men and women come from such society - have the immediate and specific objective of providing for common defense and permanently guaranteeing the sovereignty and independence of our Nation, its territorial integrity and its right to self-determination. They must also support the common well being, which is their ultimate objective, by respecting those basic values of our Nation.
These fundamental values also apply, from an Argentine perspective, to the international arena. We also attach special importance to the maintenance of other societies' democratic systems and of an atmosphere of peace and justice for the well being of their people. These, coupled with the development of close friendship, cooperation and integration with other Nations, in particular with our neighbors in the region, are also some of our goals, since their success will undoubtedly benefit our own.
Our defense policy contributes to consolidate all those values both at a domestic and international level, to the extent of its specific field of action.
2. Vital interests
Vital interests are those that affect the Nation and its people, and therefore remain mostly unchanged.
For that reason, they have been defined by the highest representatives of the people of our Nation, i.e., by Congress, in its National Defense Act. However, due to the implications of those vital interests in situations critical to national security, they become truly vital only when supported by the majority of the society, whenever it is required to preserve them against any aggression.
From this legal reference, vital interests can be summarized as follows:
- Sovereignty and independence of the Argentine Nation.
- Its territorial integrity.
- Its right to self-determination.
- The protection of the life and freedom of its people.
Those self-explanatory interests are therefore closely related to the very existence of the Argentine Nation itself, thus requiring a high degree of attention and priority on the part of the government and a proper degree of consideration in terms of the political definitions related to our National Defense.
3. Strategic interests
Strategic interests are those that influence in any manner the achievement of national interests. Although they also pose goals to be achieved, their lesser importance compared to vital interests they contribute with, make them less permanent in time, since they relate to such variables derived from the existing strategic scenario and the development of the country's international relations at a certain time.
Strategic interests analyzed in this chapter and the consideration of the security matters mentioned below should not be interpreted as having a direct effect on basic Defense objectives, nor on the development and primary use of the Military Instrument. This clarification is also valid for other considerations made in this document.
In spite of the above, strategic interests play an essential role for the Nation and should not be ignored by the Defense System. On the contrary, such System should contribute -in various ways- to their better achievement within the current legal framework and as required by the authorities, as a function of the evolution of the strategic situation.
The list of interests detailed below does not imply any priority therefor (the assignment of priorities is made at a strategic planning level) and includes the following main defense interests, in the framework of national regulations in force:
- International peace and security
- Limitation of mass destruction weapons
- Regional integration and security
- Economic and social growth
- Scientific and technological development
- Protection of the Nation from the drug trafficking and international terrorism
- Renewable and non renewable resources
- Environmental protection
- Maritime, insular and fluvial spaces of national interest
- Argentine air space
- Inter-ocean passages
- Preservation of geopolitically empty areas (unpopulated and with no government presence)
- Preservation of the Argentine position in the Antarctic System
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