Treaties of Self-Defence and Regional Arrangement ‘Vision’, Karachi, November, 1954

When the North Atlantic Treaty Organization came into existence on the 4th of April, 1949 in Washington, the Soviet Union flanked by its satellites removed the lid off the colossal communist propaganda machine in order to spit fire and venom against the treaty. In Manila, on the 8th of September, 1954 under the aegis of the United States of America—SEATO the counterpart of NATO was christened and baptized for the defence of that amorphous geographical expression—South East Asia.

As the objectives of both the treaties are essentially the same, the Soviet bloc has reacted as adversely against SEATO as it had done against its counterpart in Europe. By way of illustration, the statement issued by the Ministry of Foreign Affairs of the USSR reads:

“The Soviet Government can regard the Manila Conference and the signing of the South East Asia Defence Treaty, only as actions directed against the interests of security in Asia and the Far East, and at the same time against the interests of the freedom and national independence of the peoples of Asia. The states who initiated the creation of the above new military bloc in the South East Asia and Pacific area assume entire responsibility for their actions which grossly run counter to the tasks of strengthening peace.”

Associated with the harsh reaction of the Soviet Union is the characteristic outburst of Pandit Jawaharlal Nehru’s oratory. Drawing inspiration from George Orwell’s book ‘1984’, the Indian Prime Minister has said of the Manila Treaty, “That is what I call doubletalk, doublethink.”

Pakistan, as a signatory to the Pact, must take cognizance of the hostility enwrapping it and scrutinize dispassionately its status as a founder member of the new organization. The decision to cast one’s lot with the destinies of either bloc is based upon two fundamental assumptions:

(i) That neutrality in the present conflict of the Titans is impractical.

(ii) That the emergence of an equally powerful Third Force capable of establishing a balance of power is unforeseeable in the near future.

The recent commitments of Pakistan clearly indicate that the authors of our foreign policy have rejected both the imminence of neutrality and the emergence of a Third Force. In this respect, the foreign policy of the United States is not dissimilar to that of Pakistan. The central motif of the so-called bipartisan policy of the United States is to tie up all the nations outside the Iron Curtain into an intricate net of interlocking alliances which will embroil them all in any attempt by the communist states to spark off a conflagration.

But in the event of aggression by any force other than a communist power, the United States policy is somewhat different. In such a contingency the unambivalent intention of the United States is to desist from committing herself in a forthright manner. In other words, beyond moral pressure nothing more: although in such events, it is that something more which is of significance.

In strict adherence to this basic tenet, the U.S. has not really involved herself in issues such as Trieste and Kashmir. When Yugoslavia was in the communist bloc, the United States supported the Italian claim but when Tito’s split from the Soviet Union occurred, the U.S. successfully sponsored the move to split Trieste as well. But the Korean story is quite different and is too well-known to be repeated here. In the case of Indo-China, had it not been for the pressure exerted by France and Great Britain, the United States, prior to the Geneva Conference, would have manifested its anxiety to settle the problem in a more forceful manner.

Hence, while blood flowed in Kashmir, Jeffersonian America kept aloof with remarkable nonchalance, whereas the first shot out of a trigger-happy communist in any theatre of the world can cause a chain reaction throughout the non-communist bloc to inveigle us all to march against the Soviet Union and her allies, and the powerful People’s Republic of China.

The above stated policy of the United States is vigorously pursued in her SEATO commitments. Indeed, it is self-evident from the special protocol appended to the treaty which reads:

“The delegation of the United States of America in signing the present treaty does so with an understanding that its recognition of the effect of aggression and armed attack and its agreement with reference thereto in Article 4, paragraph one, apply only to communist aggression but affirms that in the event of other aggression or armed attack it will consult under provisions of Article four.”

Article 4 is the fulcrum of the treaty and will be discussed later. At this stage the relevant provisions will be compared with similar provisions of the North Atlantic Treaty with the purpose of detecting the true value of ‘consultation’ in the event of an emergency.

Article 4, paragraph 2 of the Manila Treaty stipulates:

“If, in the opinion of any of the parties, the inviolability or integrity of the territory or sovereignty or political independence of any party in the treaty area or of any other state or territory, to which the provisions of paragraph one of this article from time to time apply, is threatened in any way other than by armed attack or is affected or threatened by any other way than by armed attack or is affected or threatened by any fact or situation which might endanger peace of the area, the parties shall consult immediately in order to agree on the measures which should be taken for common defence.”

In comparison, Article 4 of the North Atlantic Treaty reads:

“The parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the parties is threatened.”

It is quite obvious that the two articles are not dissimilar. As a matter of fact, one is the barometer of the other. Hence, the ineffectiveness of one, ipso facto, engenders skepticism against the other. The opportunity to test the value of the North Atlantic Treaty article arose in the case of Goa. Dr. Salazar laid stress on Article 4; but as the dispute was between noncommunist countries, the United States, Great Britain and Canada deemed it prudent merely to send a note to India stating that Portugal could ask the North Atlantic Treaty Council to take up the dispute. Pandit Nehru, or anybody else for that matter, is unlikely to be greatly disturbed by such protocols. If this is the purport of ‘consultation’ as envisaged by Article 4, there is little hope of it being taken seriously. Thus ends the obiter dictum.

In contradistinction to the ‘Free World’s ‘ system of collective security, based on multilateral agreements, the Soviet system is founded on a series of bilateral treaties. The Soviet Union seems to detect some innate virtue in the bilateral character of the communist agreements. When it expressed its objections to the Atlantic Pact in a memorandum on March 13, 1949, addressed to the intending signatories of the Pact, it rejected in anticipation the Western criticism of the Soviet treaties by stating:

“All the Soviet Union’s treaties of friendship and mutual assistance with the countries of peoples’ democracy have a bilateral character……..

This argument ignores the fact that, when all the Soviet and satellite bilateral agreements are put together, there is an impregnable network imposing the same obligations as one multilateral treaty.

According to the Charter of the United Nations, treaties of collective security fall either in the chapter on ‘self-defence’ or in the one on ‘regional arrangements’. Strict observance of the Charter is profoundly important for at least two very cogent reasons:

(i) The Charter of the United Nations takes precedence over all other treaties and pacts because Article 103 provides:

“In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement their obligations under the present Charter shall prevail.”

This provision binds non-members as well because Article 2, paragraph 6 states:

“The Organization shall ensure that states which are not members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security.”

(ii) In any event, there is no system of collective security which is explicitly repugnant to the Charter. Both NATO and SEATO recognize its supremacy. A part of the SEATO preamble reads: “The parties to this Treaty recognize sovereign equality of all parties; retain their faith in purposes and principles set forth in the Charter of the United Nations and their desire to live in peace with all peoples and all governments. Reaffirming that in accordance with the Charter of the United Nations, they uphold the principles of equal rights. Furthermore, Article 1 of the same treaty stipulates:

“The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from threat or use of force in any manner inconsistent with the purpose of the United Nations.”

It is, therefore, fundamentally essential to examine the provisions of Chapter VII pertaining to ‘self-defence’ and Chapter VIII of the Charter pertaining to ‘regional arrangements.’ The dire necessity to draw a distinction between self-defence treaties and regional arrangements has been felt abundantly in the annals of international politics. Undeniably a great deal of material overlaps, hence the urgency to draw the distinction.

Self-defence means the violation of the right of another for the purpose or preventing or redressing the violation of one’s own right. This right is established by a rule of general international law which has the character of jus cognens so that it cannot be affected by any treaty.

In the opinion of numerous jurists, it is an inherent right recognised not only by the social technique called ‘law’ but also by the forces of morality and reglion. Islam, for instance, categorically recognizes the right of self-defence.

The Holy Quran says (Sura 11):

“Fight in the cause of God those who fight you, but do not transgress limits; for God loveth not transgressors.

And slay them wherever ye catch them and turn them out from where they have turned you out; for tumult and oppression are worse than slaughter; but fight them not at the Sacred Mosque, unless they (first) fight you there; but if they fight you, slay them. Such is the reward of those who suppress Faith.

But if they cease, God is oft-forgiving, Most Merciful.

And fight them on until there is no more tumult or oppression, and there prevail justice and faith in God; but if they cease, let there be no hostility except to those who practice oppression.

The prohibited month for the prohibited month—and so for all things prohibited—there is the law of equality. If than anyone transgresses the prohibition against you, transgress ye likewise against him. But fear God, and know that God is with those who restrain themselves.”

So fundamental is the right of self-defence that Mr. Kellogg, the American Secretary of State, objected to the introduction of a reservation of self-defence in the 1928 Pact of Paris, Article 1 of which merely contained that the signatories renounce war ‘as an instrument of national policy in their relations with one another.’

In support of his position, Mr. Kellogg declared in somewhat sweeping language that the right of self-defence ‘is inherent in every sovereign state and is implicit in every treaty. Every nation is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war in self-defence.’

Since the right of self-defence individually interpreted by each nation as the sole judge is capable of great elasticity, the Charter of the United Nations endeavors to limit the right to resort to armed force by the provisions of Article 51 which states:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

Thus this Article confers the right of self-defence in the event of an “armed attack.” It makes no difference whether the armed attack is carried out by a member or by a non-member. But the attacked state must be a member of the United Nations. However, if the right of self-defence is an inherent right, how can it be denied to a non-member? Notwithstanding the fact that Article 51 is silent on the right of self-defence vis-à-vis a non-member, it is absurd to contend that the Charter denies a non-member its inalienable right to defend itself against an armed attack. Furthermore, if such a contention were recognized, a member state would be barred from aligning itself with a non-member in a treaty of self-defence.

The term of paramount consideration in Article 51 is “armed attack.” The Charter omits to define it. Who, then, is entitled to sit in judgment and ascertain that an armed attack has taken place in a concrete case? According to the canons of common sense, it ought to be the attacked state. On the other hand, an individual state being the sole umpire may regard even the remotest interference by an outside power in its domestic matters an “armed attack.” It may even view monetary and moral assistance to revolutionary groups within its frontiers as an ‘armed attack’ by the power which renders the assistance to the revolutionaries in their fight against the established government.

However, the most significant and far-reaching effect of Article 51 is that it puts the veto into reverse. Under this Article a state is permitted to resort to arms in self-defence until the Security Council “has taken measures necessary to maintain international peace and security.” Hence, since a state is permitted to take up arms in self-defence without any pre-existing reservations, an interested party on the Security Council can pulverize the Council by a single veto from taking the necessary measures to assist the attacked state. In this sense the veto is reversed with the result that a twentieth century Nero can quite easily burn a Rome while the Council debates in New York.

As Article 51 permits the use of force in a restricted sense, it is an exception to Article 2, paragraph 4 of which reads:

“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”

Article 107 and 53 also permit the use of force and are, therefore, equally inconsistent with Article 2, paragraph 4. Both Articles 107 and 53 will be discussed later.

In contradistinction to self-defence, the term ‘regional arrangement’ is, relatively speaking, of recent origin in international politics. It was incorporated in the Charter primarily to safeguard the sanctity of arrangements covered by political commitments and declarations such as the famous Monroe Doctrine. It is abundantly clear from America’s initial attitude towards the League of Nations that she has been ultra sensitive about the Monroe Doctrine. Now, of course, the political equilibrium has shifted radically and the Monroe Doctrine has been overcast by new commitments. But in those halcyon days of the San Francisco Conference, there were very few among us who had the foresight to think in terms of the present tensions.

Chapter VIII of the Charter deals exclusively with regional arrangement. Article 52, paragraph 1 stipulates:

“Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the purposes and principles of the United Nations.”

“Regional arrangements” is a nebulous term. Literally interpreted, it connotes geographical propinquity. However, the perimeter of interest in the various regional arrangements is certainly not limited to geographical propinquity and, what is more, Chapter VIII of the Charter provides no such restriction. Indeed, in Article 53 the term is used to cover any treaty concluded by some members for action against enemy states without regard to geographical location of the states which are parties to the treaty.

At the San Francisco Conference, the Egyptian delegate observed that “regional arrangements are not intended solely to guard against aggression but to serve wider purposes also, such as the promotion of social and economic cooperation”. In the Egyptian view it was of the essence of a regional arrangement that it should be of a permanent nature. In reply, the delegate of United States said, “The question of defining the term ‘regional arrangements’ has already been fully debated, and the decision has been recorded that reliance should be placed upon the general terms of the Charter. …The attempt to enter into definitions would entail indefinite discussion and interminable delay.”

A regional arrangement can, from a certain vantage, be interpreted as a treaty of self-defence if the exception explicitly recognized by Article 53 tacitly includes the condition of resorting to force under Article 51.

Article 53 of the Charter states:

“1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against an enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Government concerned, be charged with the responsibility for preventing further aggression by such a state.

2. The term ‘enemy state’ as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter.”

On the face of things, this Article permits “enforcement action” without the authorization of the Security Council only in the case of “measures against an enemy state”. If, however, self-defence is an inherent right, it follows that the sanction under Article 51 is also an exception, though an implied one, which permits “enforcement action” under Article 53 without the authorization of the Security Council.

Hence if this interpretation is to be accepted, there are in fact two conditions under which regional arrangements are permitted under Article 53 to carry out “enforcement actions” without going through the Security Council ordeal. The express condition is the action against enemy states and the implied one is in the event of self-defence. If this analysis is correct then Article 53, like Article 51, reverses the veto.

If, however, action against enemy states is the only exception, then Article 53 is a serious impediment to those who establish regional arrangements solely for the purpose of self-defence. Under such circumstances, it is incumbent upon the parties to take the authorization of the Security Council before resorting to any action. In such an event, the veto acts directly, and hence, can frustrate the implementation of the necessary measures.

Apart from this disadvantage, regional arrangements are also caught by the strings of Article 54, which reads:

“The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.”

This provision can be a source of unfathomable embarrassment to members of a regional arrangement who do not relish the idea of disclosing all their schemes and statistics to a potential aggressor on the Security Council. Such a regional arrangement has the possibilities of devolving into a farcical carnival which would entertain only its enemies.

Furthermore, a member of a regional arrangement cannot assist an enemy state which is a fellow member of the regional arrangement in the event of an attack upon an enemy state by a member of the United Nations.

Such a possibility was not beyond contemplation when Yugoslavia was in the Soviet bloc. In that period the Soviet Union could have viewed the activities of Italy in regard to Trieste as hostile to the interests of peace and security, and taken action against it under Article 107 of the Charter, which reads:

“Nothing in the present Charter shall invalidate or preclude action, in regard to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.”

If regional arrangements are to remain consistent with the purposes and principles of the United Nations and organizations such as NATO and SEATO are regarded as regional arrangements, then it is doubtful whether the NATO powers could have assisted Italy, a fellow member of NATO in such a situation.

The crucial question, therefore, is to determine the true character of pacts such as NATO and SEATO. If they are regional arrangements, they must comply with the restraints imposed upon them by the Charter. If, on the other hand, they are treaties of self-defence, the Charter gives them greater scope of achieving their real objectives. Significantly enough, Article 5 of the North Atlantic Treaty stipulates:

“The parties agree that an armed attack against one or more of them in Europe or North America shall be considered as armed 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 recognized by Article 51 of the Charter of the United Nations, will assist the party or parties so attacked by taking forthwith, individual and in concert with the other parties, such action as it deems necessary, including the use of armed force, to restore and maintain the securities of the North Atlantic area.

“Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.” The second portion of Article 5 of the North Atlantic Treaty is quite innocuous in view of the fact that the Security Council may be prevented by the veto from taking the “necessary measures to restore and maintain international peace and security”.

Hence, the North Atlantic Treaty deliberately relies on Article 51 of the Charter and avoids containing any provision that may be interpreted as conforming with Article 54 of the Charter, which obliges the parties to the treaty to keep the Security Council fully informed of “activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.”

In an effort to avoid being trapped by Article 54, the North Atlantic Treaty manages to keep Article 3 of the Treaty outside the restrictions imposed by the Charter on regional arrangements. Article 3 of the North Atlantic Treaty reads:

“In order more effectively to achieve the objectives of this treaty, the parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resort to armed attack.”

If this provision was subject to Article 54, it would have been most awkward for the North Atlantic Treaty powers. Hence, it is not a mere accident that the North Atlantic Treaty consciously chooses to fall within the perimeter of Chapter VII of the Charter and with equal caution avoids being caught by Chapter VIII.

The Manila Treaty makes no specific mention of either Chapter VII, Article 51 or Chapter VIII. Nevertheless, Article 4 of the Treaty gives the impression of partiality towards Article 51. In comparing the North Atlantic Treaty with the Manila Treaty, some people have called the latter ‘toothless’. The strength of a treaty, however, is entirely dependent upon the political convictions of different communities.

Diametrically opposed reactions to the Manila Treaty stem from the basic attitude of the respective blocs. Some non-communist observers have stated that the provisions of Article 4 of the South East Asia Treaty are cumbersome and that the procedure to counteract an emergency is highly dilatory.

On the other hand, Soviet commentators have severely condemned the same Article and have said that it envisages the interference of its participants at any time and on any pretext in the internal affairs of the South East Asian countries.

This discussion, however, is incomplete without dilating upon the question whether NATO and SEATO are regional arrangements. A particular norm is generally open to two or more logical interpretations and a treaty such as SEATO is not immune from an analysis which can attribute more than one meaning to its text. The North Atlantic Treaty, for instance, has been called a regional arrangement as well as a treaty of self-defence. Sir Eric Beckett, Legal Adviser to the British Foreign Office, has argued that the North Atlantic Treaty is not a regional arrangement. His main contention is that the principal purpose of the North Atlantic Treaty is collective self-defence and therefore it is not a subject matter of Chapter VIII of the Charter.

Professor Kelsen has discussed Sir Eric Beckett’s thesis in the American Journal of International Law and has said:

“It is hardly possible to deny the possibility of interpreting the North Atlantic Treaty as a regional arrangement within the meaning of Chapter VIII of the Charter. This seems to be the most plausible, but it is not the only possible interpretation. Since the Charter does not define the concept of regional arrangement and especially since the exercise of collective self-defence is not expressly referred to in Article 53, it is not impossible to consider a treaty for the implementation of Article 51 as an agreement different from a regional arrangement. As in so many cases the Charter allows contradictory interpretations.”

Pakistan must ascertain all the important consequences of the Manila Treaty before ratifying it. Whatever may be Pakistan’s weaknesses, it is not in its character to violate the sanctity of an international commitment.

A treaty may be open to varying interpretations, but if the purposes are clear, the interpretation can never be ambiguous, no matter what the antagonists of the hallowed maxim pacta sunt servada may do or preach.