9 Collective self-defence

enemy is my friend’. The essence of a coalition is that its members marshal their combined resources and act jointly in effecting their aggregate rights of self-defence. It is sometimes argued that such a situation was envisaged by the authors of the Charter when they referred to ‘collective’ self-defence.2 In actuality, rather than collective self-defence, what we have here is ‘nothing more than a plurality of acts of ‘‘individual’’ self-defence committed collectively’.3

A coalition in self-defence, dictated by expediency, emerged in the course of World War II, following the Nazi invasion of the Soviet Union in June 1941. By July of that year, an Agreement was made by Great Britain and the USSR (Powers that had not been on the best of terms prior to this date) Providing for Joint Action between the Two Countries in the War against Germany.4 In May 1942, the same two States concluded a follow-up Treaty for an Alliance in the War against Hitlerite Germany and Her Associates in Europe, and Providing also for Collaboration and Mutual Assistance Thereafter.5

The 1942 Anglo-Soviet Alliance illuminates two interesting points. First, the Contracting Parties sought to extend the operation of the instrument into the post-War period. Future events did not bear out the optimism engendered by the constellation of World War II. In general, a military alliance, if welded in the course of war by otherwise polarized countries, is not likely to outlast the advent of peace. For that reason, many wartime alliances are confined to the immediate needs of combating a common foe. Secondly, the Soviet–British treaty proved that an alliance concluded in the midst of hostilities need not embrace all the belligerents positioned on the same side, nor does it have to be directed against all the enemies of the allies. Thus, (i) the United States (and other countries waging war at the time against Nazi Germany) did not accede to the treaty; (ii) the stated goal of the treaty was to fight together against Germany and its associates in Europe, thereby excluding Japan with which Britain – but not the USSR – was then at war.

Collective self-defence has a different meaning. The scenario is that Arcadia initiates an armed attack against Utopia (and only against Utopia), but Atlantica – although beyond the range of the attack – decides

2See D. W Bowett, Self-Defence in International Law 216 (1958).

3R. Ago, ‘Addendum to Eighth Report on State Responsibility’, [1980] II (1) ILC Ybk 13, 68.

4Great Britain–USSR, Moscow Agreement Providing for Joint Action between the Two Countries in the War against Germany, 1941, 204 LNTS 277.

5Great Britain–USSR, London Treaty for an Alliance in the War against Hitlerite Germany and Her Associates in Europe, and Providing also for Collaboration and Mutual Assistance Thereafter, 1942, 204 LNTS 353.

254 Exceptions to prohibition of use of force

of the International Court of Justice – in the Barcelona Traction case of 1970 – that the outlawing of aggression has created obligations applicable erga omnes, since all States have valid interests in the protection of the rights involved.12 Of course, in pragmatic terms, ‘it is highly unlikely’ that Atlantica will immerse itself in an armed conflict with Arcadia, unless there is a clear and present danger to Atlantican security.13 Nevertheless,

6See H. Kelsen, ‘Collective Security and Collective Self-Defense under the Charter of the United Nations’, 42 AJIL 783, 792 (1948).

7The question whether Greece can exercise collective self-defence in response to an armed attack against Peru is raised by M. Akehurst, Modern Introduction to International Law 317 (P. Malanczuk ed., 7th ed., 1997).

8See D. W. Bowett, ‘The Interrelation of Theories of Intervention and Self-Defense’, Law and Civil War in the Modern World 38, 46–7 (J. N. Moore ed., 1974).

9M. S. McDougal and F. P. Feliciano, Law and Minimum World Public Order 248–50 (1961).

10L. Oppenheim, International Law, II, 155 (H. Lauterpacht ed., 7th ed., 1952).

11See the Dissenting Opinion of Judge Jennings in Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), [1986] ICJ Rep. 14, 545.

12Case Concerning the Barcelona Traction, Light and Power Company, Limited, [1970] ICJ Rep. 3, 32.

13O. Schachter, ‘The Right of States to Use Armed Force’, 82 Mich.LR 1620, 1639 (1984).

256 Exceptions to prohibition of use of force

B.Colle ctive sel f-defen ce treati es

Art icle 52(1) of the Uni ted Nations Charter sets forth:

Nothing in the present Charter precludes the existence of regional arrangem or agencies for dealing with such matters relating to the maintenance of interna-

tional peace and security as are appropriate for regional action, provided that such

16See F. B. Schick, ‘The North Atlantic Treaty and the Problem of Peace’, 62 Jur.R. 26, 49 (1950).

17A. L. Goodhart, ‘The North Atlantic Treaty of 1949’, 79 RCADI 183, 229 (1951).

18See O. Schachter, ‘United Nations Law in the Gulf Conflict’, 85 AJIL 452, 457 (1991).

19 Nicaragua case, supra note 11, at 102–4.

20Ibid., 256–8 (Dissenting Opinion of Judge Oda).

21See Oppenheim,supra note 10, at 155. cfBut. supra, Chapter 4A,, regarding the Preamble of the Kellogg–Briand Pact (General Treaty for Renunciation of War as an Instrument of National Policy, 1928, 94 LNTS 57, 59–61).

22See S. A. Alexandrov, Self-Defense against the Use of Force in International Law 103 (1996).

along lines of ‘geographi cal prop inquity’, and it m ay compri se a

(a)Mutual assistance treaties

A mutual assistance treaty is an instrument whereby the Contracting Parties proclaim that an armed attack against one of them will be regarded as an armed attack against all, pledging to help out each other in such circumstances. A treaty of mutual assistance may be either

23 Charter of the United Nations,supra note 1, at 346–7.

24A. V. W. Thomas and A. J. Thomas, Non-Intervention: The Law and Its Import in the Americas 178 (1956).

25H. Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems

920 (1951).

26See M. Akehurst, ‘Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States’, 42 BYBIL 175, 177 (1967).

27See J. Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes – and War – Law 249 (1954).

28See A. Verdross, ‘Austria’s Permanent Neutrality and the United Nations Organization’, 50 AJIL 61, 64 (1956).

258 Exceptions to prohibition of use of force

bilateral or multilateral in scope. An agreement made by the United States and South Korea in 1953 may serve as a telling example for a bilateral treaty of this nature.29

The downside of a mutual assistance treaty is that, as a rule, a State is ready to employ force in aid of another country only if such conduct is consonant with its vital interests as perceived at the time of action, rather than in the past (when the treaty was signed). Hence, when an armed attack occurs, Atlantica may rush to Utopia’s rescue despite the absence of a mutual assistance treaty between them, yet fail to succour Numidia notwithstanding the existence of such a treaty.

If Atlantica is disinclined to abide by its obligations under a mutual assistance treaty, it will not have to contrive to find an ingenious escape clause in the text. Even if the treaty is formulated in an unequivocal manner, and does not have legal loopholes enabling a reluctant party to refuse to take action altogether, a sufficient margin of discretion is always left to Contracting Parties. It is simply impossible to resolve beforehand, except in crude outlines, pragmatic issues that in the reality of an armed attack assume crucial significance, like the precise scale of the military support to be afforded, its pace and the concrete shape that it will take.30 There are no objective comparative benchmarks by which these matters can be assessed. Decisions have to be taken against the background of the armed attack, once it unfolds in fact, and there is no way to settle differences of opinion in advance through airtight juridical clauses.

It may be deduced that a mutual assistance treaty per se cannot provide assurance that meaningful aid will actually be obtained when called for. The main benefit derived from such a treaty lies in the political sphere, for publication of the text serves notice on friends and foes alike as to the cords of affiliation uniting the Contracting Parties. This may deter potential enemies and encourage States that are favourably disposed. Nonetheless, a mutuality of political interests must not be confused with a binding commitment for reciprocal military support.

Admittedly, Contracting Parties do not always seek ways to evade carrying out the stipulations of a treaty of mutual assistance. The most momentous illustration of compliance with such a treaty is that of the

29United States–Republic of Korea, Washington Treaty, 1953, 48 AJIL, Supp., 147 (1954).

30Military supplies can be transported at once by airlift, but they can also be shipped slowly and arrive after the fighting is over. Should an expeditionary force be dispatched, its size might range from a token detachment to several army corps. The type of military units sent over (air squadrons, armoured units, paratroopers, regular infantry, etc.), their combat readiness and mastery of state-of-the-art equipment would all make a tremendous difference.

1939 British–Polish Agreement of Mutual Assistance,31 the implementation of which turned the Nazi invasion of Poland into World War II. But we must be mindful of the relevant dates: the formal agreement was signed on 25 August, the Nazi invasion of Poland began on 1 September, and the British Declaration of War was issued on 3 September. Thus, it all happened within the span of ten days. The longer the lapse of time following the conclusion of a mutual assistance treaty, the fewer the chances for its being respected in practice.

A treaty of mutual assistance may be multilateral (often regional in the geographic sense) instead of bilateral. Here the obligation to help a Contracting Party, upon the outbreak of an armed attack, is imposed not on a single State but on a cluster of States. In principle, collective selfdefence ought to be exercised collectively by the entire group. If any member of the group is averse to the idea of participating in an armed conflict when the need arises, it may still shirk its duty in practice. However, the assumption is that, among a whole host of parties, there will be at least one ready to honour its commitment.

The question is whether a single Contracting Party in a multilateral mutual assistance treaty is permitted to act on its own, offering assistance to the victim State, without waiting for an authoritative decision on behalf of the group. The treaty may require a group decision, and the process of arriving at it can be frustrated by opposition on the part of one or more countries, or at least delayed by protracted debates. All the same, a multilateral mutual assistance treaty, in creating a collective duty of collective self-defence, does not diminish from the individual right of collective self-defence under the Charter.32 This right may be exercised by any State, including any Contracting Party to the mutual assistance treaty that is unwilling to wait inertly while the victim of an armed attack is gradually strangulated.

The paradigmatic multilateral treaty of mutual aid is the 1947 Rio de Janeiro Inter-American Treaty of Reciprocal Assistance.33 The basic principle is spelt out in Article 3(1):

The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in

31Great Britain–Poland, London Agreement of Mutual Assistance, 1939, 199 LNTS 57.

32See J. N. Moore, ‘The Secret War in Central America and the Future of World Order’, 80 AJIL 43, 104–5 (1986).

33Rio de Janeiro Inter-American Treaty of Reciprocal Assistance, 1947, 21 UNTS 77, 93. (A Protocol of Amendment to the Rio Treaty was done at San Jose´ in 1975 (14 ILM 1122 (1975)), but has not entered into force.)

(b)Military allianc es

high comma nd, the amal gamation of staff planni ng, the unific ordnance, the establishment of bases on foreign soil, the organization of

joint manoeuvres and the exchange of intelligence data. The political decision whether or not to use force (and especially to go to war), in support of a State subjected to an armed attack, is retained by each of the

34 Ibid., 95. 35 Ibid., 95–7.

36 See J. L. Kunz, ‘The Inter-American Treaty of Reciprocal Assistance’, 42 AJIL 111, 120 (1948).

37 Rio de Janeiro Inter-American Treaty,supra note 33, at 101.38 Ibid., 103.

against Utopi a, the the oretical discreti onary power of Atlant ica

instrument of a military al liance. Nor is the n ature o f the u invariably d etermined by the lanofguageth seminal treaty. The initial

innocuous clauses have brought i nto being the North Atlantic T

39See W. E. Beckett, The North Atlantic Treaty, the Brussels Treaty and the Charter of the United Nations 28 (1950).

40See M. Virally, ‘Panorama du Droit International Contemporain’, 183 RCADI 9, 298 (1983).

41North Atlantic Treaty, 1949, 34 UNTS 243. 42 Ibid., 246.

43N. Schrijver, ‘Responding to International Terrorism: Moving the Frontiers of International Law for ‘‘Enduring Freedom’’?’, 48 NILR 271, 282 (2001).

44North Atlantic Treaty,supra note 41, at 246.45 Ibid., 248.

from being r egarded as an anachroism, N ATO h as enlarged its me bership (most recently, in 2004). NATO h as also undertaken missions exceed ing the bounds of collective self-defenceinfra,(see Chap ter 10, Dc)), . (

Since most States succumb to a touch of paranoia, perennially suspecting the intentions of other countries, a single State may concurrently assume assorted reciprocal commitments to support potential victims of aggression. The drawback is that the agendas and concerns of diverse associations of States do not always mesh. When small States – in an elusive quest for added security – reinsure themselves in a number of ways, a chain effect may be generated. A case in point is the trilateral Treaty of Alliance, Political Co-operation and Mutual Assistance, concluded in Bled in 1954 (at the peak of the ‘Cold War’) between Greece, Turkey and Yugoslavia.47 The first two parties were members of NATO, whereas the third was not. Pressures on Yugoslavia could have produced a suction process, drawing in non-Contracting Parties belonging to NATO (through the pipeline of Greece and Turkey). This is also true of a super-Power straddling several political groupings. Thus, the United States is a party to a wide range of military alliances and mutual assistance treaties. It may well be asked whether the involvement of the United States in collective self-defence in Europe (under the North Atlantic Treaty) may not trigger the obligations incurred by other American countries in accordance with the Rio Treaty.48

On the other hand, the fact that two countries are associated in the same multilateral military alliance, provides no assurance of good bilateral relations between them. Thus, because of the Cyprus issue (see infra, (c)), Greece and Turkey periodically behave as if they were foes, rather than allies.

Often, military alliances and mutual assistance treaties are aligned in fact, albeit not necessarily on paper, against each other. Accordingly, opposite NATO, there stood for many years (during the ‘Cold War’) the Warsaw Pact alliance.49 Although the machinery constructed in the Warsaw Pact was the political and military antithesis of NATO, there was no legal contradiction immanent in their coexistence. The rationale was that, under either treaty of alliance, Contracting Parties undertook to

46See D. W. Bowett, The Law of International Institutions 180–5 (4th ed., 1982).

47Greece–Turkey–Yugoslavia, Bled Treaty of Alliance, Political Co-operation and Mutual Assistance, 1954, 211 UNTS 237.

48Cf. C. G. Fenwick, ‘The Atlantic Pact’, 43 AJIL 312, 314–16 (1949).

49Warsaw Treaty of Friendship, Co-operation and Mutual Assistance, 1955, 219 UNTS 3, 24.

(c)Treaties of guarantee

A completely different legal technique for ensuring military assistance to a State dreading an armed attack is the issuance of a guarantee. The term

52See Oppenheim’s International Law, I, 1322 (R. Jennings and A. Watts eds., 9th ed., 1992).

53France–Poland, Locarno Treaty of Mutual Guarantee, 1925, 54 LNTS 353, 355 (Article l); France–Czechoslovakia, Locarno Treaty of Mutual Guarantee, 1925, Ibid., 359, 361 (Article 1).

264 Exceptions to prohibition of use of force

‘guarantee’ demands an explanation. When Carpathia undertakes to carry out its part of an agreement with Apollonia, it may be said that Carpathia guarantees performance. As well, a certain territory or other property belonging to a State may be considered a guarantee. Thus, Article 428 of the 1919 Versailles Treaty of Peace prescribed that the German territory situated west of the Rhine (the Rhineland) would be occupied by Allied and Associated troops, for a period of fifteen years, as a guarantee for the execution of the Treaty by Germany.54 However, a ‘guarantee’ in the sense commanding our attention in the context of collective self-defence is of a different nature.

A guarantee for our purposes is ‘essentially a trilateral transaction’.55 Just as Atlantica may guarantee to Utopia that Arcadia will honour a financial debt (so that Atlantica will secure payment if Arcadia defaults),56 Atlantica may promise Utopia to respond in a certain way to prescribed conduct by Arcadia (which is not necessarily a party to the transaction). In a genuine guarantee, Atlantica does not merely ‘endorse’ – or undertake to ‘respect’ – arrangements of a political-military character made by Utopia and Arcadia.57

The thrust of the guarantee is that, should Utopia become a victim of an Arcadian armed attack, Atlantica undertakes to come to its aid. A guarantee may be given erga omnes (encompassing any country in the world) or it may be linked to a well-defined danger faced by Utopia from a specific source (Arcadia). The guarantee is generally granted by a major Power (militarily capable of offering credible aid) – or by a group of States – to a small country (which is in need of it) as part of a territorial arrangement, a political settlement, a regime of permanent neutrality, and the like.

Although a guarantee may be issued as a binding unilateral declaration by the guarantor, or a mandatory decision of the Security Council, it is chiefly incorporated in a treaty between the guarantor and the State benefiting from the guarantee. A treaty of guarantee is similar in form to a mutual assistance treaty, but the two instruments are dissimilar in substance. In a mutual assistance treaty, all the Contracting Parties are obligated to come to each other’s help in the event of an armed attack.

54Versailles Treaty of Peace with Germany, 1919, Peace Treaties, II, 1265, 1524.

55Lord McNair, The Law of Treaties 240 (1961).

56See J. H. W. Verzijl, International Law in Historical Perspective, VI, 457 (1973).

57Hence, the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina, negotiated in Dayton, Ohio, and signed in Paris (35 ILM 75, 90 (1996)), does not truly qualify as a treaty of guarantee on the part of the former Yugoslavia and Croatia. Per contra, see P. Gaeta, ‘The Dayton Agreements and International Law’, 7 EJIL 147, 153 (1996).

What stands in stark contrast in a treaty of guarantee is that it is unidirectional in nature. Should an armed attack occur, only the guarantor would be required to extend aid to the guaranteed State, and there is no reciprocity. A disparity in the relative positions and undertakings of the Contracting Parties is an intrinsic trait of a treaty of guarantee.

When added to a treaty, the epithet ‘guarantee’ is liable to be used loosely. Thus, in 1988, the United States and the USSR signed a Declaration on International Guarantees, in which they undertook to refrain from any form of interference or intervention in the internal affairs of Afghanistan and Pakistan, as well as to respect commitments contained in a bilateral agreement between the two latter countries.58 In the bilateral agreement, Afghanistan and Pakistan renounced the threat or use of force against each other in any form (such as fomenting rebellion or secessionist activities).59 While on the face of it, the United States and the USSR were pledged to respect conduct by other States, in reality they primarily engaged themselves: the Soviet Union to withdraw its armed forces from Afghanistan, and the United States to cease covert assistance to Afghan resistance fighters.60 The so-called guarantee was merely a semantic device to produce ‘interlocked’ treaties, which constituted component parts of a single settlement.61 This was practically acknowledged in an Agreement on the Interrelationships for the Settlement of the Situation Relating to Afghanistan, concluded simultaneously by all four parties (and referring to a phased withdrawal of the Soviet troops).62

At times, a complex treaty is formulated embodying mixed components of guarantee and mutual assistance. A case in point is the 1925 Locarno Treaty of Mutual Guarantee between Germany, Belgium, France, Great Britain and Italy.63 In Article 1, the Contracting Parties ‘collectively and severally’ guaranteed the German–French and the German–Belgian frontiers.64 From the angle of France and Belgium (each being both a guarantor, as far as the other’s frontiers with Germany were concerned, and a guaranteed State), this was in effect a mutual assistance treaty. Insofar as Britain and Italy were concerned, it was an authentic treaty of guarantee. The phrase ‘mutual guarantee’, appearing in the titles of the various Locarno Treaties (see also the

58USA–USSR, Declaration on International Guarantees, 1988, 27 ILM 584, id. (1988).

59Afghanistan–Pakistan, Agreement on the Principles of Mutual Relations, in Particular on Non-Interference and Non-Intervention, 1988, 27 ILM 581, 582 (1988).

60See C. Chinkin, Third Parties in International Law 47 (1993). 61 Ibid.

62Agreement on the Interrelationships for the Settlement of the Situation Relating to Afghanistan, 1988, 27 ILM 587, 590 (1988).

63Locarno Treaty of Mutual Guarantee, 1925, 54 LNTS 289. 64 Ibid., 293.

266 Exceptions to prohibition of use of force

self-defence, it is incompatible with the Charter.72 Pursuant to the Charter, a ‘humanitarian intervention’ on behalf of a persecuted minority

65 See McNair,supra note 55, at 240–1.

66See J. F. Williams, ‘Sanctions under the Covenant’, 17 BYBIL 130, 135 (1936).

67Nicosia Treaty of Guarantee, 1960, 382 UNTS 3. 68 Ibid., 4. 69 Ibid., 6.

70See Z. M. Necatigil, The Cyprus Question and the Turkish Position in International Law

129–32 (2nd ed., 1993). On the juridical evolution of the Turkish enclave, see ibid., 67–8.

71Greece–Turkey–Cyprus, Nicosia Treaty of Alliance, 1960, 397 UNTS 287, 289, 291 (Articles III–IV and Additional Protocol I).

72See R. St. J. Macdonald, ‘International Law and the Conflict in Cyprus’, 19 CYIL 3, 12–17, 25–6 (1981).