Foreign Relations of the United States, 1949, Western Europe, Volume IV

840.20/3–1549

Minutes of the Eighteenth Meeting of the Washington Exploratory Talks on Security, March 15, 1949

Washington, March 15, 1949

top secret

Mr. Acheson reported that since his last meeting with the Ambassadors he had had two talks with the Danish Foreign Minister who was leaving for Denmark during the afternoon. He thought the talks were very successful, that the Danish Foreign Minister’s worries had been dissipated, and that the latter would recommend strongly that Denmark should sign the Treaty. He believed Denmark would sign. There had also been talks with the Icelandic Minister but, though they were progressing satisfactorily, they had not got as far as the talks with the Danish Foreign Minister. He thought the Icelanders were more troubled than the Danes but that they would conclude in the final analysis that they would like to sign the Treaty, too.

Mr. Bonnet hoped to have an answer from the French Government about approval of the text during the course of the next day but, as Mr. Schuman would still be in London the entire morning, he thought the meeting of the Council of Ministers could not take place before the afternoon and that it might be prolonged. He thought that he could not make the French decision known before Wednesday evening.

Mr. Acheson proposed that the meeting turn to the consideration of the relationship of the Treaty to Chapter VIII of the Charter.

Mr. Van Kleffens referred to a very short telegram from The Hague, where they seemed to see an antinomy between Article 51 and Chapter VIII. Their main difficulty seemed to be the obligation under Article 54 to keep the Security Council at all times fully informed; about the applicability of Article 53 they were apparently less concerned, probably because in their view the Treaty under discussion does not contemplate any enforcement action.

Contrary to the London legal advice,¹ it seemed to The Hague that the compatibility of the Treaty with the Charter would be weakened if only Article 51 were declared applicable to the Treaty. On the other hand, it seemed unreasonable to maintain that the Treaty had no connection with Chapter VIII. The Netherlands Government, therefore, had come to the provisional conclusion that it would be preferable to act on the assumption that the Treaty has a certain connection with both Article 51 and Chapter VIII, and to agree that Article 54 is not applicable to the whole contents of the Treaty.

He was not certain whether this was a satisfactory answer; personal investigation into the history of Article 51 and Chapter VIII had not brought him much further. He asked whether there was much point in trying in advance to answer hostile criticism which was not yet known to us. He never had seen much advantage in trying to answer such more or less hypothetical questions. Perhaps it would be better to consult together after an attack had been levelled on this point.

Mr. Bonnet said that he had no instructions on this point but that the opinion of the jurists given in London had been communicated to him as well as to his colleagues. He wished to agree with Mr. Van Kleffens that it was not possible to foresee all the kinds of criticism which would be levelled against the Atlantic Treaty and to give an appropriate reply in advance. Whatever decision was taken about the relationship of Chapter VIII, there would be Criticism; if no reference was made to Chapter VIII, it would be said that the Treaty was not in conformity with the Charter and had some features of an alliance or coalition; if it was linked to Chapter VIII, attempts would be made to prove that it did not conform to the provisions of that Chapter. The legal advice received from the jurists in London was that there was nothing in the text of the Treaty itself that made it necessary to take the view that it was not in conformity with Chapter VIII of the Charter as well as with Article 51. The opinion went on to say that, especially in view of the provisions of Article 54, it would be better, however, not to link the Treaty too closely with Chapter VIII. The legal advisers in London were of the opinion that in commenting on the Treaty it was important to avoid mentioning that it was a regional agreement. Nevertheless, he felt it would be better not to give a narrow interpretation in the minutes.

Sir Oliver Franks said that at the last meeting the two positions had been summed up by saying that either Article 51 or Chapter VIII applied, or, on the other hand, both Article 51 and Chapter VIII applied. The views received from London were both legal and political; the only important legal view seemed to be that nothing in the Treaty was in conflict with the Charter. Therefore, the chief considerations were political, which led the jurists to say that the collective self-defense side of the Treaty was a new and legitimate development under Article 51 of the Charter but it was also true that certain things in the Treaty would naturally come under Chapter VIII but those things were in reality simply reaffirmations of what was already in the Charter, e.g., Articles 1 and 9. The jurists suggested that if, instead of relating the Treaty negatively to Chapter VIII, it were related positively, criticism would be invited. It could be assumed, for example, that because of the provisions of the articles of Chapter VIII there would be no power to act: everything would have to be reported and, under the articles of that Chapter, certain acts would become necessary. In the past, thinking had been related mainly to Article 51; attempts to relate it positively to Chapter VIII were recent and not too productive. He suggested that the best answer would be to agree that it was impossible to foresee in exactly what way criticisms and objections would come; that reliance should be based primarily on Article 51 and secondarily on Chapter VIII. This suggestion was neither “either/or” nor “both/and”. He circulated a draft memorandum of an agreed interpretation which he thought might replace the existing draft which appeared to place too much reliance on the “both/and” solution and, therefore, to be open to the political objections raised by too positive a relation of the Treaty to the articles of Chapter VIII. He thought that in dealing with the regional aspect of the Treaty it was fair to say that this was not a regional organization so much as an organization based on self-defense and on the common interests of the countries in the area. This was shown by the fact that the relation of Italy to the area by common interest was clear, although its relationship by geography was not.

Mr. Wrong referred to a Canadian legal opinion² which had been distributed to the other representatives earlier. The Canadian position was that on the legal side it was difficult to maintain that every part of the Treaty could be regarded as completely excluded from the operation of Chapter VIII. Clearly, however, Article 51 was intended to be the governing article and nothing in Chapter VIII restricted in any way the right of individual or collective self-defense under treaties authorized by Article 51. He agreed that Article 53 should be disregarded as it dealt wholly with enforcement action, which was contemplated under the Treaty. He thought there was possibly some obligation to send reports from time to time to the Security Council under Article 54, but that obligation would not apply to action taken under Article 3 and Article 5 of the Treaty which drew their sanction from Article 51. If the legal position was to be recorded in the minutes, the Canadian view would be that it was in the highest degree important to emphasize that in signing this Treaty Article 51 was intended to be the over-riding provision and that Chapter VIII must be read and regarded as subject to Article 51 in this connection. On the political side, the Canadian view was that if the relationship to Chapter VIII was emphasized at this stage there would be destructive propaganda against the Treaty. It would be said that a feeble attempt had been made to justify the Treaty in the light of Chapter VIII. If reliance were placed in Chapter VIII Russian propaganda might well emphasize in Europe the argument that Article 51 really applied to any action taken under Article 5 of the Treaty and, therefore, the Treaty did not mean anything because the veto in the Security Council would apply before such action could legally be taken under the Charter. On the other hand, an attack might take the form of an accusation that this was an attempt to justify what already had been done in violation of the spirit, if not the letter, of the Charter. The Canadian view was that the position should be maintained (and he understood it had been maintained since the early stages of the negotiations) that the Treaty rested squarely on Article 51 but contained nothing contradictory to the terms of Chapter VIII. He thought that this position was very close to the “primarily and secondarily” position taken by Sir Oliver Franks.

Mr. Morgenstierne said that he had not yet received instruction but that on a personal basis he thought that the Treaty was both a regional arrangement under Chapter VIII and a common defense pact under Article 51. He was inclined to agree with Sir Oliver Franks’ view that the primary function of the Treaty would be an arrangement under Article 51 and that the relationship to Chapter VIII was secondary. He thought it would be necessary to be ready to hear very violent criticism from the Soviet Union in any circumstances, whatever was said and however it was expressed. He thought that it was more important to meet the opposing views which would be expressed by the public of the countries participating in the negotiations.

Mr. Le Gallais thought there would be less room for criticism if the Treaty were based on Article 51 of the Charter. He supported the point of view put forth by the legal advisers in London.

Baron Silvercruys agreed. There appeared to be nothing in the Treaty which was in conflict with the spirit or the provisions of the Charter. During the negotiations stretching back to the previous summer there had been many discussions on the form of agreement which was to be reached. He thought that the unanimous opinion had been in favor of a defensive treaty. The treaty which had emerged was essentially defensive in character, even if there were some articles in it which might well be related to parts of the Charter other than Article 51. An attempt had been made to demonstrate that the Parties were imbued with the spirit of the Charter as a whole. Taken by and large, he considered the Treaty to be more a defensive than a regional agreement. He thought that if it was necessary to arrive at an agreed interpretation it should be done on the basis of the primary character of the Treaty as a defensive arrangement.

Mr. Acheson said that he thought he could accept Sir Oliver Franks’ draft³ with one or two small changes. What was being done was to say that the Treaty was in accordance with the Charter. No appeal was being made to the Charter for the right to make such a Treaty. It was only necessary to see that there was nothing in the Charter which forbade the conclusion of an agreement of this sort. Many parts of the Charter applied to the Treaty but particularly two groups of provisions seemed to be particularly applicable; both were permissive. Article 51 said that nothing in the Charter should prevent the exercise of the inherent right of individual or collective self-defense. It put a condition on the exercise of the right by saying that if such and such steps are taken they must be stopped when the Security Council took over. That provision of the Charter was not the basis for the agreement now being reached but was the protection of the right to make the agreement with the sole proviso that action must stop when the Security Council took over. Not one word in the Charter, according to the specific declaration of Article 51, prohibits the inherent right of individual or collective self-defense, whether on a regional basis or otherwise. It would be possible to have an agreement on individual and collective self-defense between the United States and China or between the United States and Turkey. The country need not be in the same region at all. On the other hand, if the countries were in the same region they were protected because the Charter said that nothing in the Charter should prevent regional arrangements. It was impossible to be wrong either way. If the question were asked whether the Treaty was in agreement with Chapter VIII the reply ought to be, not that the Parties had looked to Chapter VIII for authority, but that of course the Treaty agreed with Chapter VIII because there was nothing in the Treaty contrary to Chapter VIII. The Security Council would be kept advised as provided for. No attempt would be made to take enforcement action without the advice of the Security Council. Every attempt would be made to try to settle disputes among the parties without bothering the Security Council. He thought this attitude and the attitude of looking to Chapter VIII to see that there was nothing forbidding the arrangement rather than looking to the Chapter for authority to conclude the arrangement agreed with what Sir Oliver Franks had suggested.

Sir Oliver Franks said that the point that seemed to be of most concern in London was the possibility that after arrangements had been made in connection with collective self-defense under the terms of Article 9 of the Treaty some state on the Security Council might claim that the Council had a right to be told about the plans. It would be very awkward to have to refuse to give this information and it was for this reason that the British Government was concerned that nothing said about the relationship of the Treaty to the Charter should lead to a false position.

Mr. Acheson thought that the proposal to change the word “aggression” to “armed attack” in Article 3 might help to avoid such a possibility because it would then become necessary to inform the Security Council, under Article 54, only about activity in connection with an armed attack. Plans and arrangements did not constitute activity. Only if the arrangements made under Article 9 rose to the status of an agreement would it be necessary to inform the Security Council under other provisions of the Charter. The plans made to meet an armed attack did not constitute activity because an armed attack was not contemplated; plans which might or might not be used were merely being drawn up as a guide in case an attack had to be met. He thought the main thing was to avoid saying that Article 54 did not apply to the Treaty. If overt action had to be taken to meet an armed attack the Parties would probably be very anxious to tell the Security Council about it.

Mr. Bonnet was inclined to agree with Mr. Acheson’s interpretation of Article 54’s relation to the Treaty. He thought the point raised Could be solved by taking into account that the essential parts of the Treaty did not come under Article 54. This article provides that “activities” must be made known to the Security Council, whether contemplated or undertaken. There is no doubt that some of the activities, for example in the economic field, can be reported to the Security Council. As for other activities, they come under Article 51 and are regulated by that Article. Moreover, it must be stressed that no veto can be applied to the reporting of activities. He consequently thought that the Parties should not be too timid in speaking of regional arrangements. It would be going too far to deny the regional nature of the Treaty and he thought that regionalism would, in the long run, be good for the future of the United Nations which had had so many difficulties in coping with universalism. He thought it would be a good idea to show that something was being done, not only for the defense of the North Atlantic area, but also for the future of the United Nations.

There was a discussion of the wording of the draft memorandum submitted earlier by Sir Oliver Franks in the course of which Mr. Acheson said that the United States had given the United Nations a copy of the Rio Treaty and had informed the United Nations only of those limited matters which were of importance, were of legitimate interest to the United Nations as a whole, and which were not classified for security purposes. The United Nations had been informed of the dispute between Costa Rica and Nicaragua but had not been informed of what was said or done at meetings of the Inter-American Defense Board because that was not regarded as activity under Article 54.

Mr. Wrong made the point that there was a closer connection between Chapter VIII and the Rio Treaty than between Chapter VIII and the North Atlantic Treaty because the former contained a provision for a body with power to take decisions which had no parallel in the North Atlantic Treaty.

Baron Silvercruys suggested that Sir Oliver Franks’ draft should begin with the words “In reaffirming their existing obligations for the maintenance of peace and the settlement of disputes, it is the primary purpose of this Treaty to provide for the collective self-defense of the Parties”. He did not want to relegate the secondary consideration too much to the background.

Mr. Van Kleffens suggested that the memorandum in its present form was perhaps too brief for use by people who had not been in close contact with the negotiation of the Treaty. Its terms might well be understood by those present at the table but might not be sufficiently ample for others farther away.

Mr. Bonnet suggested that there was no reference in the memorandum to Chapter VIII of the Charter and that it would be useful for everybody to be able to point out that at least some parts of the Treaty could be considered as a regional arrangement.

Sir Oliver Franks thought that this could be done under the existing wording.

Mr. Wrong thought that if the memorandum said anything about the Treaty being a regional arrangement it would be necessary to indicate whether it was a Regional Arrangement in the sense of Article VIII of the Charter or whether it was a regional arrangement in a more general sense.

There was some further discussion about amplifying the memorandum, especially by the inclusion of a reference to Article 51 of the Charter. The consensus was that it was intended to be less a detailed guidance for publicity purposes than a note of an understanding of the meaning of the relationship of the Treaty to the Charter.

Mr. Van Kleffens said that he would give his Government the sense of the present discussion as a commentary on the memorandum. He suggested that others might wish to send it to their governments and comment on it as they saw fit.

Mr. Morgenstierne raised the question how much information would be given to the Security Council under Article 54. Mr. Acheson replied that he thought only action taken or contemplated to meet a definite attack should be reported; he did not think that staff-talks concerning a hypothetical attack need be reported. A plan for a possible emergency did not constitute “action”.

Agreement was reached on the meaning of the relationship of the Treaty to the Charter, and especially to Article 51 and Chapter VIII on the basis of the draft memorandum submitted by Sir Oliver Franks, as amended. The meeting then turned to the consideration of the proposal to substitute “armed attack” for “aggression” at the end of Article 3.

Sir Oliver Franks thought that “armed attack” emphasized the connection with Article 51 of the Charter. He admitted that “armed attack” was more limited than “aggression”, but thought the limitation was outweighed by the greater clarity in the relationship with Article 51.

Mr. Van Kleffens expressed a preference for the retention of “aggression” as that word was used throughout the Charter and was broader in meaning than “armed attack”: it would cover an attack from within a country.

Mr. Wrong also preferred “aggression” because it covered cases of indirect aggression.

Sir Oliver Franks thought the use of “armed attack” might help to allay the concern expressed by Mr. Morgenstierne earlier, by making it easier to limit what was to be reported under Article 54.

Mr. Bonnet favored “armed attack” in English and “aggression armée” in French. He suggested also the addition of “any” in English and “toute” in French.

Mr. Morgenstierne noted that, if “aggression” was interpreted to cover indirect as well as direct aggression, he would prefer it to “armed attack”.

Mr. Bonnet asked if “aggression” had not always been meant to apply to direct aggression only.

Mr. Van Kleffens had always held that the Treaty was not limited to armed attack, but that the consultative clause would come into action if a Party said that its security was threatened by borings from within.

Mr. Hickerson said that Article 5 related solely to armed attack.

Baron Silvercruys thought that if “aggression” was retained in Article 3 measures could be concerted beforehand to deal with indirect aggression; if reliance was placed solely on Article 4, plans could be made only after the indirect aggression had started.

Mr. Le Gallais could see advantages and objections to both courses, and did not wish to take a firm position.

Mr. Hickerson said that the United States group always viewed “aggression” as meaning armed attack.

Mr. Acheson thought that the substitution of “armed attack” for “aggression” would have little, if any, effect on reporting under Article 54, because if activities under Article 3 were to be reported, they would have to be reported whatever phrase was used.

Sir Oliver Franks said that his legal advisors held that if “armed attack” was used in Article 3, Article 54 could not apply. “Armed attack” was the phrase used in Article 51, and they thought that Article 54 had no application to measures taken or contemplated for purposes of self-defense; they thought that if “aggression” was used in Article 3 in a sense wider than “armed attack”, possibly Article 54 would apply.

Mr. Hickerson agreed that one point in favor of “aggression” was that it applied to indirect aggression. But throughout the present series of exploratory talks the United States group had used the word “aggression” as synonymous with “armed attack”. In the early stages of the talks, consideration had been given to the possibility of dealing with indirect aggression in the Treaty; he thought it had been given up because indirect aggression was so difficult to define. Direct aggression was dealt with in Articles 3 and 5, and indirect aggression was left for Article 4, on consultation.

Mr. Acheson asked for the views of the other representatives.

Mr. Bonnet preferred “armed attack” and noted that it would not be necessary to refer back to Governments because the change had been agreed in London.

Mr. Van Kleffens had a strong preference for “aggression”, but would not oppose the general wish of the rest. Mr. Wrong and Mr. Morgenstierne also had a strong preference for “aggression”, but would not make an issue of it.

The United States was prepared to accept “aggression” if it was agreed to mean “armed attack”. As the majority preferred “armed attack”, the change was made.

The proposal to add “any” before “armed attack” could not be accepted by the majority.

It was agreed that, subject to the final concurrence of the French government, there was now an agreed text of a draft North Atlantic Treaty.

During the exploratory talks which resulted in the draft treaty, agreement was reached on the meaning of certain phrases and articles. These agreements were not formal, hut constituted the understanding of the representatives participating in the discussions as to the interpretation of those phrases and articles. The committee reviewed those interpretations and instructed the Secretary to make note of them. They are:

“(1) The participation of Italy in the North Atlantic Treaty has no effect upon the provisions of the Italian Peace Treaty.

(2) ‘Mutual aid’ under Article 3 means the contribution by each Party, consistent with its geographic location and resources and with due regard to the requirements of economic recovery, of such mutual aid as it can reasonably be expected to contribute in the form in which it can most effectively furnish it, e.g., facilities, manpower, productive capacity, or military equipment.

(3) Article 4 is applicable in the event of a threat in any part of the world, to the security of any of the Parties, including a threat to the security of their overseas territories.

(4) a. For the purposes of Article 6 the British and American forces in the Free Territory of Trieste are understood to be occupation forces.

b. The words ‘North Atlantic area north of the Tropic of Cancer’ in Article 6 means the general area of the North Atlantic Ocean north of that line, including adjacent sea and air spaces between the territories covered by that Article.

(5) With reference to Article 8, it is understood that no previous international engagements to which any of the participating states are parties would in any way interfere with the carrying out of their obligations under this Treaty.

(6) The Council, as Article 9 specifically states, is established ‘to consider matters concerning the implementation of the Treaty’ and is empowered ‘to set up such subsidiary bodies as may be necessary’. This is a broad rather than specific definition of functions and is not intended to exclude the performance at appropriate levels in the organization of such planning for the implementation of Articles 3 and 5 or other functions as the Parties may agree to be necessary.

(7) It is the common understanding that the primary purpose of this Treaty is to provide for the collective self-defense of the Parties, as countries having common interests in the North Atlantic area, while reaffirming their existing obligations for the maintenance of peace and the settlement of disputes between them.

It is further understood that the Parties will, in their public statements, stress this primary purpose, recognized and preserved by Article 51, rather than any specific connection with Chapter VIII or other Articles of the United Nations Charter.”

The meeting then turned to a discussion of certain points of procedure. It was agreed that the Ambassadors need not meet again to hear the approval of the French Government. It was also agreed that the working group should meet next day to review the message transmitting the text of, the Treaty to Denmark, Iceland, Italy, and Portugal, with an invitation to be original signatories. The hour of releasing the text to the press was set for 11 a. m., Washington time, on Friday, March 18.

Mr. Wrong asked that there be some discussion of the nature of the meeting preceding signature. It Was his view, and the view of his Secretary of State for External Affairs, that the Treaty should not be signed after the General Assembly of the United Nations was in session; he thought Monday, April 4, would be a suitable date, as the Assembly was to meet on the 5th. This meant that the final proceedings should begin at the end of the week before, on March 31 or April 2. He was afraid that if Foreign Ministers who were going to attend the opening of the General Assembly lingered in Washington to sign the North Atlantic Treaty instead, there would be unnecessary unfavorable propaganda. His main point was that the Treaty should be signed before the Assembly met, and his secondary point was that it was not wise to bargain on concluding the proceedings in one day. It might, for example, be necessary for the Foreign Ministers to agree together on a common statement to meet criticism of the Treaty raised during the fortnight of public discussion.

Mr. Acheson favored meeting on the 4th, signing on the 4th, and concluding the proceedings on the 4th, unless there was some proposal for a change which would have to be dealt with.

Mr. Wrong thought that that would not be satisfactory. It was the view of his Government that it would not be suitable to gather together so many Foreign Ministers merely for a signing ceremony lasting a few minutes. He thought the final ceremony would have to be termed a Conference.

It was agreed that this matter should be discussed further at the meeting of the working group next day, and the four invited states should be told that the ceremony of signature would take place on or about April 4, 1949.

1. An extract from a British Foreign Office telegram to the British Embassy, March 14, 1949, summarizing the conclusions of legal advisers on compatibility of the United Nations Charter and the proposed North Atlantic Pact, was forwarded to the Department of State by Hoyer Millar on March 15 and is in Department of State file No. 840.20/3–1449.
2. Enclosed in a memorandum from Hickerson to Acheson, March 15, not printed (840.20/3–1549).
3. Not identified in Department of State files.