[From The International and Comparative Law Quarterly, July 1971]

SEATO AND AMERICAN LEGAL OBLIGATIONS CONCERNING LAOS AND

CAMBODIA

(By Alfred P. Rubin)1

I. INTRODUCTION

It is common practice to justify present behaviour on the ground of “established" policy. This attribution of great insight and wisdom to the past has two main advantages: (1) It saves us the trouble of determining what policy really is the best, and (2) it gives us a sense of security. What greater assurance can there be of the utility and reasonableness of the Monroe Doctrine, for example, than the knowledge that President Monroe established it in 1823!

But President Eisenhower and Secretary of State Dulles have not yet achieved the reputation that Monroe and the other founding fathers have. We are still free to doubt the wisdom of their policies. One of the policies of Eisenhower and Dulles whose wisdom is frequently doubted is the policy surrounding the South East Asia Collective Defence Treaty of September 8, 1954. But the basis for this doubt, aside from many intellectuals' vague resentment of the Republican "style" and what is called Dulles' "moralism," seems to be rooted in the idea that the Treaty (which is usually mis-called the SEATO Treaty for convenience) commits the United States to act in Asia in ways now perceived to be inconsistent with the present best interests of the United States. But this presupposes that the Treaty in fact commits us legally to act, and that, if it does, the legal commitment cannot be changed or ignored without disastrous consequences. The fact I that the Treaty was cited as one facet (among many) of the American commitment to the unpopular war in South Vietnam does not mean that the Treaty actually committed the United States legally to act in that conflict; it means merely that a Democratic administration wanted to find a policy (not necessarily a legal) basis for an unpopular action in the prior acts of a Republican administration. It is not self-evident that the commitment contained in the SEATO Treaty is inflexible or that our policy-makers have no choice but to interpret it to require Southeast Asian adventures.

II. THE BACKGROUND; THE NETWORK OF DEFENCE ALLIANCES

In 1947 Harry Truman was President, Hitler was dead, the United States was disarming and, in any case, had a monopoly on nuclear weapons, Russia was an ominous enigma in Europe but was not regarded as a threat to the Western Hemisphere. Nonetheless, on September 2 of that year the Rio Pact was opened for signature. This Pact was the first step in formalizing a degree of interAmerican co-operation which in the United States was considered the natural and desirable development of the Monroe Doctrine. The Monroe Doctrine had originally been embodied in President Monroe's annual statement to Congress on December 2, 1823: "... the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers." The precise meaning of this policy pronouncement is elastic, like mos'. For present purposes it is necessary merely to point out that the makers of the foreign policy of the United States have found it convenient to cite President Monroe whenever they have contemplated intervening between a second country and a third country when the outcome of the foreign intrigue may have some impact on the interests of the United States.

In the Rio Pact the modern implications of the Doctrine were made less elastic, more specific. The Pact provides (Art. 3) that the Parties, each one,

1 Professor of Law, University of Oregon School of Law.

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severally, "undertakes to assist" in meeting "an armed attack by any State against an American State." Even more, (Art. 6) it provides for consultation in cases not involving an armed attack. The commitment to consultation envisages agreement "on measures which must be taken in the case of aggression or, in any case, the measures which should be taken for the common defense...." Whether this meant that the subject-matter of the consultations might not go beyond defence measures, or whether those consulting are bound in good faith to come to some agreement on those measures, was left unclear.

In 1949 the North Atlantic Treaty was concluded. The operative defence commitment in that Treaty (Art. 5) was a defence commitment in the case of armed attack similar to the commitment in the Rio Pact. With regard to situations other than armed attack, however, the commitment (Art. 4) is merely to consult, with no restriction on agenda or prejudgment of the agreement that should result from the consultation.

In 1949, also, Communists won control of mainland China. In June of 1950 the United States became involved in a war in Korea and by the end of 1950 Chinese Communists had become our main antagonists there. In late 1950 the Chinese Communists invaded Tibet, which surrendered to them in May 1951.

On August 30, 1951, the United States signed a commitment to Korea (Art. 4) "to act to meet the common danger in accordance with its constitutional processes" in case of "armed attack." On September 1, the identical commitment was made to Australia and New Zealand. On September 8, to Japan. In all three Treaties the obligation to consult in situations not involving an armed attack is stated, but without the peculiar qualifications of the Rio Pact concerning the subject-matter or need to reach agreement.

In 1952 and 1953 the major threat to the established order in Southeast Asia in reality was probably not “armed attack," but armed nationalism. Yet armed attack was considered the more serious and immediate danger. Was not Indochina a peninsular extrusion of mainland China, just like Korea? Did not Indochina have a history of subordination to China (when China was strong) and independence (when China was weak), just like Korea and Tibet? Had not Indochina suffered for two generations under foreign, non-Chinese domination which might lead China to think it ripe to welcome Chinese occupation, just like Korea and, in the Chinese view, Tibet?' Did not everybody, all one's most trusted friends, agree that a resurgent China under the militant and victorious Communists would be expansionistic? Blocked in Korea, where the fighting ended after an Armistice was signed in July 1953, and presumably blocked in Russia by what was thought to be comradely good will if nothing else; having already occupied the vast barrenness of Tibet, where else was there for China to expand? Furthermore, Dien Bien Phu having fallen after almost three months of siege on May 7, 1954, about a week after the Geneva Conference to settle the Indochinese situation convened, it was clear that the old order posed no obstacle to what was regarded as an expansion to Indochina of Communist ideology based on Chinese power. Red China was a party to the Conference. To the extent the North Vietnamese presented the "hardest" line, it was regarded by the West as a rather transparent Chinese (or, indeed, Russian) negotiating tactic.

As the French position in Indochina was deteriorating, and apprehension of the future plans of the Chinese Communists grew in Washington, on April 4, 1954, President Eisenhower wrote to Winston Churchill, then Prime Minister of the United Kingdom, ". . . under the conditions of today the imposition on Southeast Asia of the political system of Communist Russia and its Chinese Communist ally, by whatever means, would be a grave threat to the whole free community, and that in our view this possibility should now be met by united action and not passively accepted.""

But how could China be stopped? NATO had stopped Russian advance in Europe, or so it must have seemed. More important than a possibly mistaken analogy, the bilateral defence engagements of the United States in the Far East were giving local governments a chance to devote their economies to development while the United States took up the burdens of defence. Could not the same game be played in Indochina, fairly cheaply to the United States, by a multilateral defence agreement by which France, the United Kingdom, the United States,

See Rubin, "The International Position of Tibet" (1968) 35 The China Quarterly 120 at 136, 140, n. 148. D. D. Eisenhower, Mandate for Change (1963) 419 (Signet, 1965).

Thailand and others would share the defence burden, leaving the weaker States of the area to devote their energies to nation building? In his letter to Churchill, Eisenhower suggested "a new, ad hoc grouping or coalition of nations which have a vital concern in the checking of Communist expansion in the area," specifically, the United States, United Kingdom, France, Australia, New Zealand, Thailand, the Philippines, and the three Indochinese States. By June, under pressure of the French collapse in Indochina and the continuing "Emergency" in Malaya, the British had agreed. The analogy between SEATO and NATO was Churchill's contribution. The Southeast Asia Collective Defence Treaty was signed at Manila on September 8, 1954.

III. THE COMMITMENT

A. Subversion; Action by the United States Senate

The pertinent part of the SEATO Treaty divides the Parties' obligations, on the pattern of the other defence treaties, into obligations in cases of armed attack, and obligations in cases not involving armed attack. The latter problem, although more complex in some ways, is easier to dispose of, so let us turn to the "other than armed attack" provisions first. In this matter the SEATO Treaty did not follow the NATO precedent; it followed the precedent of the Rio Pact. The precise wording of the SEATO Treaty (Art. 4(2)) is:

of

"If, in the opinion of any of the Parties, the inviolability or the integrity of the territory or the sovereignty or political independence of any Party in the Treaty area or of any other State or territory to which the provisions . . . this Article . . . apply is threatened in any way other than by armed attack..., the Parties shall consult immediately in order to agree on the measures which should be taken for the common defense." [Emphasis added.]

In the Rio Pact the obligation in cases of subversion was to consult "in order to agree on measures which must be taken in the case of aggression" as well as "the measures which should be taken for the common defense." Whether the parties intended some difference in obligation by this change in wording is not clear.

On November 11, 1954, Secretary Dulles testified before the Senate Foreign Relations Committee as to the meaning of the SEATO obligation supporting the President's request for the Senate's advice and consent to the Treaty. In his letter transmitting the text to the Senate, Secretary Dulles wrote that the express obligation to act in case of "armed attack," which will be discussed below, "is based upon the Monroe Doctrine principle." He also wrote that the commitment to action "leaves to the judgment of each country the type of action to be taken in the event an armed attack occurs."

With regard to the obligation applicable in the absence of armed attack, Secretary Dulles wrote, with almost charming ambiguity, that the Treaty ". . . contains no obligation beyond consultation, but the purpose of consultation is to agree on measures to be taken for the common defense." Did this mean merely that the subject to be discussed was to be restricted? Or did it mean that the Parties had bound themselves in good faith to agree on at least some measuresfailure to reach agreement being a breach by the hold-outs of their Treaty commitments? Both of those interpretations seem to be absurd. Why should States restrict the subject-matter of their talks in an emergency? Did they want to provoke arguments among themselves in such a consultation as to whether a measure proposed by one of them was a "common defense" measure or not? On the other hand, how could responsible statesmen "agree to agree" when serious disagreements were clearly foreseeable? If all the rest agreed that Thailand should invade China, for example, as a mutual defence measure, was Thailand to be considered bound to act in accordance with the decision of other countries? Would the United States Senate ever consent to a provision that might commit the United States to "agree" on steps that seemed suicidal or beyond our political or economic capacity to take? It is overwhelmingly likely, rather, that the real interpretation is that the language was intended to "authorize" the powers to draw up contingency plans to handle subversion to which the political decisionmaker of each would be committed to agree if the foreseen contingency came about.

Senator H. Alexander Smith, a Member of the Committee who had also been a member of the U.S. Delegation to Manila that signed the Treaty subject to

4 Executive K, 83d Cong., 2d sess.

ratification, pressed Secretary Dulles specifically on the issue of insurgency in Vietnam during the oral part of the hearings. Secretary Dulles' response was: ". . . if that situation arises or threatens, that we should consult together immediately in order to agree on measures which should be taken. [Thus seeming to adopt the second of the two absurd interpretations; but going on, inconsistently,] That is an obligation for consultation. It is not an obligation for action." Under close questioning by Senator Theodore Green, he retreated even further: "If there is a subversive thing which seems dangerous, we sit together and talk about it, and then try to agree as to whether it calls for action. . . . [T]here is in the Treaty itself no commitment to action in that event [no armed attack] unless action is subsequently agreed to as a result of the consultation."

This interpretation seems to eliminate completely whatever meaning could be put upon the language of the Treaty indicating a commitment to conclude consultations with an agreement to act.

One further point troubled Senator Homer Ferguson, and he asked Secretary Dulles just how flexibly the words "armed attack" were to be interpreted. Apparently, he did not want the automatic commitment contained in the "armed attack" provisions of the treaty to be applied to insurgency situations, however broadly discretion as to specific action was reserved to the United States. "In other words," he said to Secretary Dulles, "the words 'armed attack' in paragraph 1 of Article 4 are the ordinary armed attack rather than a subterfuge of penetration or subversion." Dulles responded: "Yes, sir."

With the Korean and Tibetan precedents for overt armed attack before them as the threat to which the United States proposed signalling its intention to respond quickly, and with the Vietnam troubles of 1954 as the precedent before them for what was believed to be Chinese or Russian "penetration or subversion," the Senate had before it a definitive interpretation of the ambiguous language of the Treaty making it clear that, in the absence of overt armed attack, the United States had no obligation under the Treaty other than to consult. Despite the Monroe Doctrine language used by Secretary Dulles, and the ambiguity of the Treaty and his first attempts to explain it, the Senate had before it a document for advice and consent which, it was told, followed the NATO pattern rather than the Rio Pact pattern.

None of the foregoing analysis means that the United States is freed of possible moral or policy obligation resulting from history or unilateral declarations of policy to do more than consult with its SEATO partners in cases of penetration or subversion in the SEATO area. We are speaking at this time only of the legal obligation contained in the SEATO Treaty. Legally speaking, mere declarations of policy can be changed at the whim of the one with authority to declare policy or his successor in authority. But Treaty obligations cannot be changed so easily.

The Senate did not significantly question the "armed attack" terms of the draft Treaty. The Senatorial advice and consent was given and the Treaty entered into force February 19, 1955.

B. Armed Attack

The Senate had officially and openly secured an interpretation of the Treaty to limit the terms of the United States commitment before advising and consenting to its being ratified. Arguments attempting to trace United States involvement in Indochina, including in Vietnam, to some SEATO commitment, thus founder as a matter of strict treaty interpretation unless the action of the United States is traced to an "armed attack" rather than "penetration or subversion." This is the reason the United States took the position in Vietnam State Department Press Releases of January 3 and 7, 1966: "The United States has a clear and direct commitment to the security of South Vietnam against external attack. This commitment is based upon [among other listed things] the SEATO Treaty .." and by the State Department Legal Adviser's brief of March 4, 1966: the infiltration of thousands of armed men clearly constitutes an 'armed attack' under any reasonable definition. . . . the United States has a commitment under Article IV, paragraph 1, [of the SEATO Treaty] in the event of armed attack. . . ."

Before pursuing the technical interpretation of the United States obligations under the SEATO Treaty to determine the strict legal commitment of the United States in the case of "armed attack" (whether or not it is accepted that the

events being considered can properly be labelled "armed attack"), a short digression into legal theory seems necessary.

Under Anglo-American concepts of contract some "bargained-for-exchange" is necessary between (or among) the parties before the law will hold any of them bound legally by his promise. Under European civil law concepts there is an equivalent requirement for causa-basically analogous to our "consideration"— something given in exchange for the promise and legally sufficient to take the promise out of the class of things to be labelled a "gift". In international law there is no equivalent concept. A promise given in appropriately solemn form is legally binding even if there is no counter-promise. Therefore, a treaty obligation cannot be evaded in international law merely because the apparent obligations are all on one side.

But must the recipient of the benefits be a "Party" in order to gain a legal right to the "gift"?

Under at least some municipal legal systems it is possible in some special cases to give a third party a right to enforce by direct legal action in his own name a promise made between others. At international law it is doubtful that such a right exists. Certainly, the rights of so-called "third party beneficiaries" are at heart doubtful at international law, and particularly so with regard to treaties of alliance. Even when simpler issues are involved, such as the possible rights of third party users of an inter-oceanic canal (like the Suez Canal) to press directly for the enforcement of the treaties opening the waterways to them, severe doubts have been raised and after preliminary flurries the users have not in fact asserted their purported rights directly."

Therefore, in order to know the precise United States legal obligations under the SEATO Treaty, a question that must come to the mind of an international lawyer must be: "Obligation to whom?" Since the obligation in cases of subversion seems to be merely an obligation to consult, no matter to whom that obligation is owed, it seems too petty to warrant further analysis at this point. But the obligation to act in response to an armed attack is not petty. It involves life and death. Furthermore, the SEATO Treaty, like the other multilateral alliances of the United States, contains a “several” obligation; each party has promised to act regardless of the failures of the other parties. But to whom is that obligation owed?

A second question of interpretation must be, assuming an obligation to somebody exists at all, precisely what action is owed. As we shall see that also is not necessarily an easy question to answer.

The precise wording of the pertinent provision of the SEATO Treaty is: (Article 4(1)):

Each Party recognizes that aggression by means of armed attack in the Treaty area against any of the Parties or against any State or territory which the Parties by unanimous agreement may hereafter designate, would endanger its own peace and safety, and agrees that it will in that event act to meet the common danger in accordance with its constitutional processes. ...

The United States formally restricted the obligation to cases of "Communist" aggression and it is used here with that interpretation implied.

1. Commitment to whom?

There can be no question but that United States owes some duty to act to its fellow parties in the Treaty. Those parties are the United Kingdom, France, Australia, New Zealand, Pakistan, the Philippines and Thailand. But with regard to those parties that do not in a particular case share the view of the United States that action is necessary under the Treaty, no problem can arise. It is, of course, possible to argue logically that the United States owes them a legal duty to act triggered by the good faith determination of the United States independently (1) that an armed attack has occurred, (2) that the attack is part of the larger set "aggression," and (3) that the object of the attack is a party or a designated territory in the Treaty area. But that seems, as it were, a bit too clever. Unless the complaining State has made the same determination, it is not likely to be able to argue convincingly that it is in any way aggrieved by the failure of the United States to act according to United States classification of events. Furthermore, if the determinations that trigger the commitment are to

5 Cf. 3 Whiteman, Digest of International Law, p. 1097 et seq. (Washington, 1964): McNair. The Law of Treaties, pp. 265-266, 315 (Oxford, 1961); cf. Vienna Convention on the Law of Treaties, May 23, 1969, Arts. 34, 36.