526 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [24:509 It was this last provision on which Senate debate centered. In testimony before the Senate Foreign Relations Committee, John Foster Dulles, who had been a member of the U.S. delegation at San Francisco, said that this provision was understood to contemplate the use of treaties.111 On the Senate floor, several Senators suggested that he misspoke; a treaty, they contended, would not necessarily be required.112 Others disagreed.113 The Chairman of the Senate Foreign Relations Committee, Senator Tom Connally, answered that it was premature to debate the question because the issue would be decided when such an agreement was actually concluded." 114 A message from President Truman, indicating that he would "ask the Congress for appropriate legislation to approve" any such agreement, caused some Senators to voice concern.115 A statute governing U.S. involvement in the United Nations—the United Nations Participation Act116-was ultimately enacted; it requires congressional approval of any such agreement.117 118 Finally, of course, the United States may exercise a veto against any such action. This was presented by administration spokesmen as a constitutional safeguard,119 and was so perceived by various Senators. 120 It has been argued that the veto is inadequate in this regard insofar as the U.S. representative might not be present when such a measure is voted on. This is true but irrelevant: the President might be unavailable to exercise his veto over certain legislation, but his absence could hardly imply a constitutional defect. Procedure can provide only opportunity; it cannot guarantee that an opportunity will be used. These constitutional objections leveled against the Charter thus appear without merit. They are usefully borne in mind, however, in assessing the arguments made in connection with the United States' various mutual security treaties, which are examined below in the order into which they were entered. 111. The Charter of the United Nations: Hearings Before the Senate Comm. on Foreign Relations, 79th Cong., 1st Sess. 653 (1945). 112. See, e.g., 91 CONG. REC. 8021 (remarks of Sen. Lucas) (1945); id. at 8022 (remarks of Sen. Fulbright). 113. See, e.g., id. at 8025 (remarks of Sen. Taft). 114. Id. at 8029. 115. See, e.g., id. at 8185 (remarks of Sen. Donnell). 116. 22 U.S.C. § 287 (1945). 117. 22 U.S.C. § 287(a) (1945). 118. U.N. CHARTER art. 27, para. 3. 119. The Charter of the United Nations: Hearings Before the Senate Comm. on Foreign Relations, 79th Cong., 1st Sess. 298 (1945) (statement by Leo Pasvolsky, Special Assistant to the Secretary of State for International Organization and Security Affairs). 120. See, e.g., 91 CONG. REC. 6876 (1945) (remarks of Sen. Connally). 1986] A. The Rio Treaty U.S. MUTUAL SECURITY TREATIES 527 The first mutual security treaty entered into by the United States after the conclusion of World War II was the Inter-American Treaty of Reciprocal Assistance, 121 commonly called the "Rio Treaty." Twenty-three Western Hemisphere nations are today parties. 122 At the time the treaty was being negotiated, classified communications within the Department of State indicated an intent to "[s]pecify satisfactory procedures for reaching majority decisions in the consultations called for under the treaty that will not bind the United States without its consent."123 It was recognized that "[a]greement in principle to the inclusion in the treaty of a provision for concrete action in event of armed attack does not make the difficult problem of wording such a provision much easier."124 It was suggested that such a treaty would be "essentially political rather than military."125 The treaty that emerged met these specifications. It provides that the 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 meeting the attack...."126 Unlike subsequent mutual security treaties to which the United States became a party, this commitment is not qualified by language suggesting that it would be carried out in accordance with the "constitutional processes" of each party; the only reference in the treaty to constitutional processes occurs in connection with the ratification provision. 127 The commitment is qualified by a provision stating that "each one of the Contracting Parties may determine the immediate measures which it may individually take in fulfillment of the obligation" referred to above. 128 121. Inter-American Treaty of Reciprocal Assistance, opened for signature Sept. 2, 1947, 62 Stat. 1681, T.I.A.S. No. 1838, 21 U.N.T.S. 77 [hereinafter cited as Rio Treaty]. 122. Current parties are Argentina, the Bahamas, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Trinidad and Tobago, the United States, Uruguay, and Venezuela. U.S. DEp't of State, Treaties in Force 229 (1985). 123. Cable from the Assistant Secretary of State for American Republic Affairs (Braden) to the Under Secretary of State (Acheson), May 29, 1947 (Secret), reprinted in 8 U.S. DEP'T OF STATE, FOREIGn Relations of the United States 1 (1947). 124. Memorandum by the Chief of the Division of Special Inter-American Affairs (Dreier), June 25, 1947 (Confidential), reprinted in id. at 5. 125. Telegram from the Chargé in Ecuador (Shaw) to the Secretary of State, July 7, 1947 (Restricted), reprinted in id. at 12. 126. Rio Treaty, supra note 121, art. 3, § 1. 127. "This Treaty. ... shall be ratified by the Signatory States as soon as possible in accordance with their respective constitutional processes." Id. art. 23. 128. Id. art. 3, § 2. 528 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [24:509 Yet this applies only until the "Organ of Consultation" meets and "agree[s] upon the measures of a collective character that should be taken."129 Such decisions are taken by a vote of two-thirds of the parties to the treaty. 130 All parties to the treaty are bound to apply measures comprising the recalling of chiefs of diplomatic missions; breaking of diplomatic or consular relations; and the interruption of economic relations or of rail, air, sea, postal, telegraphic, telephonic, or radio communications. 131 However, "no State shall be required to use armed force without its consent."132 This final provision set the tone for discussion of the constitutional ramifications that took place in the U.S. Senate, although the "escape clause" was downplayed in initial communications to the Senate Foreign Relations Committee. The report of Acting Secretary of State Robert A. Lovett to President Truman, which was in turn transmitted to the Senate, stressed that each party to the treaty would incur an obligation. 133 In response to questions from the Senate Foreign Relations Committee, however, the State Department took a somewhat softer line. Assistant Secretary of State Norman Armour testified in executive session that, "[i]n the event of . . . attack, the parties to the treaty are bound to extend such immediate individual assistance to the attacked state as each party considers necessary. . . ." He reiterated that the United States could not be required to use force without its consent. 135 The Senate Foreign Relations Committee concluded that in 129. Id. 130. Id. art. 17. 131. Id. art. 20; art. 8. 132. Id. art. 20. 9134 133. [E]ach of the parties obligates itself to take affirmative action to assist in meeting an armed attack. This important provision converts the right of individual and collective self-defense, as recognized in the United Nations Charter, into an obligation under this treaty. The provision for immediate assistance is applicable to all cases of armed attack taking place within the territory of an American state. ... Letter of Acting Secretary of State to President Transmitting Rio Treaty, 17 DEP'T ST. BULL. 1189-90 (1947) (emphasis in original). This was transmitted to the Senate by President Truman. President's Message to Senate Transmitting Rio Treaty, id. at 1188. 134. Inter-American Treaty of Reciprocal Assistance: Hearings Before the Senate Comm. on Foreign Relations (Historical Series), 80th Cong., 1st Sess. 126, 127 (1947) (statement of Norman Armour, Assistant Secretary of State). 135. Id. at 129. Senator Connally asked General Matthew B. Ridgway, also representing the administration, about the scope of that discretion: Senator CONNALLY: [I]n the case of an attack by one American State against another... [w]hile the obligation to us is to immediately come to the assistance of the attackee, we have to choose our own measures for that purpose, is that right? General RIDGWAY: Yes, sir. Senator CONNALLY: In the case of an attack from without into the zone, we are obligated, are we not, to come to the assistance of the attacked State, and use arms? 1986] U.S. MUTUAL SECURITY TREATIES 529 the event of an armed attack, "we would be called upon to extend immediate assistance to the state attacked."136 But it added: "The character and amount of this assistance would be determined by our Government."137 "In no case, however, would we be required to use our armed forces without our consent."138 On the Senate floor, the scope of the treaty's obligation was further discussed. Senator Connally explained that "it is left to the discretion and wish of each of the nations to adopt such measures as it may approve in carrying out the obligation to assist the victim of the attack."139 Senator Donnell was concerned with ambiguities in the treaty's text and wondered whether a reservation might be appropriate to make clear that the United States would be under no obligation to use armed force.140 Senators Vandenberg and Connally assured Senator Donnell that the treaty was clear enough. "The total option remains with each individual signatory, without any limitation or instruction," Senator Vandenberg said. 141 "[A]ll through the treaty," Senator Connally said, "it is specific that even in the first instance each nation shall determine its own measures of meeting attack, which would mean that it would not have to adopt military action unless it so desired." "142 Senator Donnell then indicated that he was content to accept the Senators' views, and no reservation was offered. 143 Senator Millikin, who later cast the sole vote against the treaty,144 chided Senator Vandenberg for the apparent inconsistency in his position,145 but the Senate appeared satisfied with the explanation given by him and Senator Connally. The Senate consented to General RIDGWAY: No, the same obligation attaches, sir. We can choose the method by which we implement the obligation to assist in meeting that attack. We are not obligated to employ armed force there, either. Id. at 131. 136. S. EXEC. REP. No, 11, 80th Cong., 1st Sess. 11 (1947), reprinted in 1947 U.S. CODE CONG. & AD. NEWS. 137. Id. 138. Id. 139. 93 CONG. REC. 11,124 (1947). 140. Id. at 11,128. 141. Id. 142. Id. at 11,129. 143. Id. 144. Id. at 11,137. 145. The colloquy was as follows: Mr. MILLIKIN. I suggest to the Senator that there is no point in having a cake if you do not eat it. Mr. VANDENBERG. After you have eaten it, as I understand it, it has disappeared. Mr. MILLIKIN. It has disappeared, but if you do not eat it what is the use of having it? Id. at 11,131. 530 COLUMBIA JOURNAL OF TRANSNATIONAL LAW ratification of the treaty by a vote of seventy-two to one.146 B. The NATO Treaty [24:509 The concern expressed in the Senate during consideration of the Rio Treaty that the United States might be swept into war without deliberation was reflected in the drafting of the NATO Treaty.147 Unlike the Rio Treaty, the reference to "constitutional processes" in the NATO Treaty is linked directly to the central commitment undertaken. The treaty provides that "its provisions [shall be] carried out by the Parties in accordance with their respective constitutional processes. ."148 The principal provision referred to is undoubtedly that of article 5: The Parties agree that an armed attack against one or more The terms of the treaty make it clear that no nation is committed to introduce its armed forces into hostilities; it may do so if it deems such action necessary, but such introduction is not required. That this is the intended interpretation emerges from every level of consideration of the treaty in the United States. The day the text of the proposed NATO Treaty was made public, Secretary of State Dean Acheson addressed the nation. The treaty, he said, "does not mean that the United States would be automatically at war if one of the nations covered by the pact is subjected to armed attack. Under our Constitution, the Congress alone has the power to declare war." 150 146. Id. at 11,137. 147. North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, T.I.A.S. No. 1964, 34 U.N.T.S. 243 [hereinafter cited as NATO]. Current parties to the treaty are Belgium, Canada, Denmark, France, the Federal Republic of Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey, the United Kingdom, and the United States. U.S. DEP'T OF State, Treaties in Force 274 (1985). 148. NATO, supra note 147, art. 11. 149. Id. art. 5 (emphasis added). 150. Address by Secretary of State Acheson delivered on Mar. 18, 1949, over the combined networks of the Columbia and Mutual Broadcasting Systems, 20 DEP'T ST. BULL. 38488 (1949). |