Foreign Relations of the United States, 1981–1988, Volume XIII, Conflict in the South Atlantic, 1981–1984

113. Action Memorandum From the Acting Assistant Secretary of State for Inter-American Affairs (Bosworth) and the Permanent Representative to the Organization of American States (Middendorf) to Secretary of State Haig¹

Washington, April 13, 1982

SUBJECT

• Falkland Islands: Next Steps In The OAS

ISSUES (CONTINGENCY) FOR DECISION

Argentina is keeping open its option to call for an Organ of Consultation, or Meeting of Foreign Ministers, under the Rio Treaty. The timing could be tight, depending on the status of the Secretary’s discussions. On a contingency basis we should decide on:

—Whether to seek actively to block an Argentine call for a Rio Treaty meeting.

—How to vote on such an Argentine request.

—Our strategy if such a meeting is convened.

ESSENTIAL FACTORS

As of Tuesday morning,² Argentina is holding off on calling for a Rio Treaty meeting. The Argentine Mission has informed USOAS that they are under instructions from the Foreign Ministry not to exercise that option today.

Any of the twenty-one Rio Treaty signatories can call for an Organ of Consultation, or Meeting of Foreign Ministers, under the Rio Treaty. The request is addressed to the President of the OAS Permanent Council and debated there by the 30 OAS members. However, since the subject of debate is convening an Organ of Consultation under the Rio Treaty, only the twenty-one signatories can vote. The decision is taken by simple majority—which means we would need 11 votes to block. The twenty-one signatories are: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Chile, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Trinidad and Tobago, United States, Uruguay and Venezuela.

The OAS Argentine Mission told us Saturday³ that should they call for an Organ of Consultation under the Rio Treaty, they visualized basing their request on the moderately worded Article 6 of the Treaty—“any other fact or situation that might endanger the peace of America”—rather than the much more troublesome Article 3—“an armed attack by any State against an American State shall be considered as an attack against all the American States.” The Argentines stated they would not be requesting assistance of the signatories. Subsequently, the Argentine Mission has stated to us that should they seek OAS action it would be under the Rio Treaty, not the OAS Charter (as we had requested) in which the non-Treaty signatory English-speaking Caribbeans could have participated.⁴

In the TOSEC of late Saturday (copy attached)⁵ we recommended Option C, that we seek to turn Permanent Council debate on the Argentine request toward a Meeting of Foreign Ministers under the Charter rather than the Treaty. We had hoped the Argentines might agree; they do not. More importantly, we had hoped for a useful persuasive contribution from statesman-like participation in the preliminary debate by non-Treaty signatory Caribbeans. Unfortunately, since that time in the closed Permanent Council session of Monday on the Colombian resolution, the Caribbeans have done their worst to aggravate the Latins, coming close to fingering the Argentines as aggressors. With this poisoning of the wells, chances are much dimmer for a Charter invocation outcome and we now face an uphill struggle with serious consequences for the inter-American system over the longer haul and for our continuing acceptability as a mediator of the present dispute. This action memorandum deals with actions required to implement Option C and the costs. We then request guidance on how to proceed if we find ourselves in a Rio Treaty situation and we present the following options:

THE OPTION TO BLOCK THE ARGENTINES

(Option C of the attached cable)

With the Caribbeans out of the equation, to implement Option C, get 11 votes against Argentina, and hold off a Rio Treaty invocation, we would need to engage in hard lobbying in key capitals.

Our arguments could include:

—The OAS Charter which contemplates in Article 59 “problems of an urgent nature and of common interest to the American States” provides us with the necessary flexibility to deal with the Falkland dispute, rather than the Rio Treaty, which could involve us in undesirable suggestions that binding sanctions (which require a two-thirds majority) be invoked against the British.

—Charter consideration provides us with more of the sort of conciliation mechanisms appropriate to the present situation, rather than the collective security, confrontational in this case, mechanisms of the Treaty.

—Charter consideration is fairer; it permits participation by all hemispheric states on a problem which clearly concerns the entire region.

—Rio Treaty invocation, or at least adoption of collective security measures under the Treaty, is troublesome since (a) Argentina’s armed takeover, whatever their claim to the islands, violates international law; (b) the binding legal duty to withdraw forces imposed by UNSC resolution 502 cannot be avoided by recourse to OAS or Rio Treaty mechanisms; (c) we and the other hemispheric states are obliged to respect the SC decision in conformity with our obligations under the UN and OAS Charters and the Rio Treaty; and (d) under international law the UK no doubt believes it is entitled to exercise a right to self defense.

(The Latins are likely to find these last arguments too harsh. However, in his recent memorandum of law (copy attached)⁶ the Legal Adviser has concluded that under international law and in the light of UN action the UK has a right of self defense to use proportionate force to retake the islands and that we would have strong legal objection to the adoption of any Rio Treaty collective security measures that impaired that right.)

The demerits of these arguments are:

—Not many Latins will agree with bringing in the Caribbeans. (Some may point out that Caribbean exclusion is precisely why the US may favor using the Treaty sometime in the future to deal with Nicaragua or Cuba.)

—An Article 6 Treaty invocation with no Argentine calls for assistance and no subsequent hostilities or British military moves could still permit flexibility for conciliatory measures.

—In arguing UN primacy in the OAS and advancing the British right to self defense, we irrevocably take sides, damaging both our future ability to use the Rio Treaty and our present acceptability as a mediator to the Argentines.

In trying to get the 11 blocking votes (bearing in mind the GOA’s intent to use the moderate Article 6 rationale):

—At the moment we count as with us Mexico, Trinidad and Tobago and possibly Brazil and possibly Colombia—a shaky 5.

—For invoking the Treaty, we see at least Argentina, Bolivia, Costa Rica, Chile, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay, Peru, Uruguay and Venezuela—16.

—Minds which might be changed by a hard push—not because they agree with us but because of our leverage—Costa Rica, El Salvador, Honduras (to give us 8 votes).⁷

—Even more difficult but perhaps open minded—Ecuador and Chile (it probably would not be in Chile’s interest to spite the Argentines—although they are deeply bothered by the Argentine action)—to give us the probably remote possibility of 10 votes.⁸

—As an 11th vote in this very shaky equation, Haiti. But the Haitians know how to cut deals and their asking price could be high.

In the view of ARA and USOAS, this game, with no promise of assured success, is no longer worth the candle. Indeed it appears that events have overtaken this option. Time is very short and the fall-out from a full court press will be heavy. At a minimum the Argentines will think that we have slammed a door on them. This conclusion leads to considering what courses of action are open to us in the event Argentina calls for an Organ of Consultation under the Rio Treaty.

VOTING OPTIONS ON THE ARGENTINE REQUEST

While we should explain fully in the debate on the request our view that the OAS Charter is a more appropriate conciliatory mechanism, we have these choices in the voting which follows:

—Yes, for invocation, which will displease the British and the English-speaking Caribbeans;

—No, against invocation, which will displease the Argentines and most Latins;

—Abstain, which probably will irritate both sides, but to a lesser degree, while preserving our ability to mediate.

OPTIONS ONCE IN A RIO TREATY MEETING

There are two options:

—We can advance views that Argentina has violated international law by its takeover and that Argentina further is obligated to heed immediately UNSC resolution 502, and withdraw its forces;

—We can lobby intensively for use of the Treaty mechanism in a conciliatory, peace-making effort.

In our view, the first tactic cripples our ability to mediate. In advancing the UN primacy concept, it also pokes a hole in our recent argument in a somewhat similar, though different, situation, at the UN that Nicaragua should have taken its case to the OAS, not the UNSC. The second option will find favor with a number of the signatories; most will want to avoid imposing sanctions; most will want to work for a useful conciliatory OAS role. During the course of a Rio Treaty meeting should the British take off the gloves and commence to sink Argentine shipping, we will be in a different situation. Working for conciliation and avoiding imposition of sanctions will be harder. We may then be faced with a decision on going along with sanctions or, along with Mexico, asserting UN primacy and our legal reasons to not comply with Rio Treaty sanctions.

Recommendations:

1. That with respect to an Argentine request to convoke the Rio Treaty, we not lobby among the OAS Permanent Representatives in Washington and in the capitals for a Charter action since events have overtaken us, but that we do explain our views in order to prepare the way for the push toward conciliation we would make in an MFM convened under the Treaty.⁹

2. That on a vote on invoking the Rio Treaty, we abstain, explaining our view that the Charter would be the more appropriate mechanism.¹⁰

3. That once in an Organ of Consultation, convened under the Rio Treaty, we work with other Permanent Representatives to achieve an outcome in which a conciliatory mechanism would be offered to both sides, if agreeable to them, but no collective security measures would be considered.¹¹

1. Source: Department of State, Central Foreign Policy File, P880104–1014. Secret; Exdis. Drafted by Johnson; cleared by Thompson and Holmes. A stamped notation in the upper right-hand corner of the first page of the memorandum indicates that Haig saw it.
2. April 13. On that day, after several days of debate, the OAS Permanent Council adopted Resolution 359 (492/82), sponsored by Colombia, Costa Rica, and Ecuador, which expressed the OAS’s “profound concern” over the Anglo-Argentine dispute, expressed its “fervent hope that a rapid, peaceful solution can be found to the disagreement between the two nations within the context of the rules of international law,” and offered its “friendly cooperation in the peace efforts already under way.” For the complete text of the resolution, see American Foreign Policy: Current Documents, 1982, pp. 1300–1301.
3. April 10.
4. In the left-hand margin next to this sentence, Haig wrote: “6 v 3. OAS Charter vs. Rio Treaty.”
5. Not attached. Reference is to telegram Tosec 50131/97180, April 11. (Department of State, Central Foreign Policy File, P880104–0925)
6. Not printed. The April 10 memorandum of law is in the Department of State, Central Foreign Policy File, P880104–1019.
7. Following this point, Middendorf wrote: “Hond. & El Salv. Made impassioned speeches tonight in support of Argentina.”
8. Following this point, Middendorf wrote: “These 2 will be mighty tough.”
9. Haig initialed his approval of the recommendation.
10. Haig initialed his approval of the recommendation.
11. Haig underlined the portion of the sentence beginning with “a” to the end and initialed his approval of the recommendation. A handwritten notation in an unknown hand after this recommendation reads: “Approved per Secto 6008.” Telegram Secto 6008, April 15, is in the Department of State, Central Foreign Policy File, N820003–0566.