The 1995 agreement regulating the use of the Lajes base provides for the obligation of prior notification to the Portuguese authorities for the transit of North American military aircraft, with exceptions limited to the NATO framework. Constitutionalists argue, however, that, outside of these situations, Portugal must be informed, in order to know the degree of “complicity” in which it can be placed
It is necessary to go back 31 years to clarify the doubt that most people have been asking in recent days: should Portugal or not demand explanations about the high military movement of the United States at the Lajes base?
While international experts argue that the Portuguese Government has Washington under threat of “indirectly collaborating in a violation of International Law”, military experts consider that our country is “our greatest ally”.
What are we left with?
“There is a lot of speculation around this topic, but the agreement is particularly clear”, begins by explaining constitutionalist and PS deputy Pedro Delgado Alves. “When it comes to an operation within the framework of NATO, prior communication is not necessary, as long as Portugal has not opposed the carrying out of this operation”, he adds.
The agreement, however, is not limited to the NATO framework. As Pedro Delgado Alves points out, “there is another provision that extends the same logic to operations conducted within the scope of other international organizations of which Portugal and the United States are part”. Even so, the constitutionalist draws attention to a decisive point: “At the end of the article, it states that, in other cases, there must be communication”, he notes, making it clear that the exemption from notification is exceptional and not the rule.
Meanwhile, questioned by CNN Portugal, Pedro Bacelar de Vasconcelos, also a constitutionalist, argues that the operation of the Lajes base must “strictly comply with what was established in the agreements signed between Portugal and the United States”. In his reading, this implies the existence of “prior information whenever movements are at stake that are not merely routine, but that are part of ongoing military actions”.
The constitutionalist warns that this duty of information is not a formal detail. Operations of this nature may “imply the responsibility of the Portuguese State for the consequences of the actions that are developed” and even the degree of “complicity” in which Portugal may be placed, if these actions have an impact in light of International Law.
The doubts arise at a time when 15 KC-46 Pegasus refueling planes from the North American Air Force continue to be parked at the Lajes Base. On Wednesday morning, according to CNN Portugal, in addition to the 15 aircraft – in the same position for almost a week – there was only one US Navy C-130 on the runway, an aircraft normally used to transport troops and cargo.
American supply planes parked at Lajes Base, on February 18 (António Araújo/Lusa)
But what does the agreement dated 1995 say?
If we want to have a clear answer regarding the obligations and duties of North Americans in Portuguese territory, it can be found in , which ratifies the Cooperation and Defense Agreement between Portugal and the United States of America, including the Technical Agreement relating to Lajes.
In Article IV, no. 1, of the Technical Agreement, Portugal grants authorization for the use and transit of North American military aircraft, but with an explicit reservation: this authorization is given “without prejudice to Portugal’s full sovereignty over its territory, territorial sea and air space”.
In the following number, the central norm of the current controversy appears. “The transits described in the previous paragraph will be subject to prior notification to the competent Portuguese authorities.” (Article IV, § 2).
In practical terms, this means that the movements and transits of US military aircraft through the Lajes Base must be notified in advance to Portugal.
Pedro Delgado Alves highlights, however, the existence of an exception. “This article (…) only exempts the United States from communicating with Portugal when it is within the framework of NATO and in missions that Portugal does not oppose. In other cases it has the duty to communicate.”
And this is where another of the controversies that marked the last few days arises, when the Minister of Foreign Affairs entered the scene. According to Paulo Rangel, any type of operation outside the agreement with the USA “does not have to be authorized, nor known, nor communicated by Portugal”. “It never was and it wasn’t going to be now,” he said earlier this week. However, the governor’s words may not be completely correct.
“When the minister says that he does not have to communicate when it is a NATO operation, that is not right. And it is enough to know the application of the treaty to say that this interpretation is not correct”, explains Pedro Delgado Alves.
The constitutionalist also remembers that the minister, at a certain point, made an indirect reference to a kind of tacit agreement with Washington, implying that some communication had taken place. However, he points out, “without more details, we cannot say exactly whether it was a detailed explanation or what may have been transmitted.” What is truly relevant, highlights Pedro Delgado Alves, is that “for the purpose of complying with that standard there must be prior communication, nothing more”.
Also questioned by CNN Portugal, constitutionalist Pedro Bacelar de Vasconcelos goes further, arguing that the position could be a “washing of hands” on the part of the Minister of Foreign Affairs. “I find the position adopted by the minister incomprehensible. It seems to me to be an irresponsible approach to international law.”
In case of attack, USA must be “loyal” to Portugal
Another distinct question is whether prior notification implies revealing the strategic objective or final destination of each operation.
The agreement speaks of “prior notification”, but does not impose an obligation to provide a detailed explanation of the mission. Still, Pedro Delgado Alves admits some limits. “It is up to the US to reveal what is essential so that the Portuguese State knows what it is about. Now, the degree of detail, obviously, is very variable, depending on the circumstances”, he says, highlighting that “there is no carbon-paper formula that says there has to be communication in full detail and in full detail.”
The issue becomes even more sensitive when it comes to actions outside the framework of the North Atlantic Treaty Organization. For Bacelar, the difference is “crucial”. “In a situation that involves military actions against other sovereign States, it is of elementary loyalty that this information is provided”, he states, adding that, if “an exercise in the use of force and the use of military force (…) against a sovereign State, within the scope of international law, the minimum of the minimum is that the State with sovereignty in that territory is informed”.
