/pub/history/military/a-weu/document File: 1369polc.goe Document 1369 24th May 1993 Interpretation of Article XII of the modified Brussels Treaty ______ REPORT(1) submitted on behalf of the Political Committee (2) by Mr. Goerens, Rapporteur ______ TABLE OF CONTENTS ================= DRAFT RECOMMENDATION on the interpretation of Article XII of the modified Brussels Treaty EXPLANATORY MEMORANDUM submitted by Mr. Goerens, Rapporteur ______ Draft Recommendation ==================== on the interpretation of Article XII of the modified Brussels Treaty The Assembly, (i) Considering that the Council has so far given no juridically-based justification for its decision to consider that the high contracting parties to the Paris Protocols of 23rd October 1954 would be authorised to release themselves from their commitments in 1998; (ii) Recalling that, in its answer to Written Questions 306, 309, 314 and 315, the Council at last agreed to examine the Assembly's views on this matter; (iii) Considering that the Assembly's competence to interpret, on the same basis as the Council, the Protocols of 23rd October 1954 is established by Article IX of the modified Brussels Treaty; (iv) Recalling that, in its answer to Recommendation 372, the Council assured the Assembly that "no substantial reforms of WEU will be undertaken withour prior consultation with the Assembly"; (v) Considering that the Paris Protocols are not simply a revision of the 1948 Brussels Treaty but establish a new treaty because: (a) they are directed towards new goals; (b) they are the basis of a European union whose vocation is to be enlarged and entirely new means are implemented; (c) the Paris Agreements are not limited to Protocol No. I which modifies the Brussels Treaty but include three other protocols whose aim is different; (d) they create a new organisation; (e) for the first time they associate the parliaments of the high contracting parties with the application of an alliance; (vi) Considering it quite clear that the high contracting parties, when signing and ratifying the Paris Agreements, considered that the essential provisions of those agreements should remain in force for half a century because of Article XII of the new treaty, RECOMMENDS THAT THE COUNCIL Concur with its juridically-based interpretation of Article XII of the modified Brussels Treaty, according to which the 1954 Paris Agreements establish a new treaty, and conform to it. ______ Explanatory Memorandum ====================== (submitted by Mr. Goerens, Rapporteur) On 15th April 1993, the Council communicated its answer to four written questions (306, 309, 314 and 315) relating to the decision taken by the governments and expressed by the WEU Council, as in the text of the Maastricht Treaty, to consider that the denunciation clause provided for in Article XII of the modified Brussels Treaty could be invoked at the end of a period of fifty years starting with the entry into force of the Brussels Treaty, i.e. 25th August 1948. The Council thereby rejected the request made by the Assembly, the principle of which had been accepted by Mr. Colombo, then Chairman-in-Office of the Council, at the joint meeting between the Presidential Committee and the Council in Rome on 18th November 1992, that independent juridical experts be consulted. On 21st April 1993, Mr. Colombo told the Standing Committee that this proposal had effectively been put to the Council by the Chairmanship-in-Office but the Council had rejected it. The Assembly has no knowledge of a meeting of juridical experts from member countries on this matter which means that, at best, the government representatives consulted their ministries' legal experts in a purely national framework on the basis of a question of whose wording we have no knowledge in order to obtain answers whose terms were not notified to us. In other words, they did not give the Assembly's request serious consideration. The answer to the four written questions confirms this impression, on the one hand because it does not reply, any more than the Council's earlier statements, to the Assembly's arguments set out in paragraphs 75 to 83 of Document 1261. Nor do the arguments in paragraph B seem really appropriate: "A legal obligation to submit diverging interpretations or disputes to independent arbitration cannot be found in the modified Brussels Treaty, nor in any other binding act applicable within WEU. There is no evidence of a constitutional practice within WEU envisaging independent arbitration upon request by one of its bodies. Furthermore, there exists no general legal obligation upon the bodies and organs of an international organisation to submit diverging interpretations or disputes to independent arbitration. However the Council does not foreclose the possibility for further evaluation of additional considerations that the Assembly might wish to present." Encouraged by Mr. Colombo, the Assembly paid heed to the last sentence of this paragraph of the Council's answer and instructed your Rapporteur to set out the arguments that it had taken as a basis for challenging the view expressed by the Council. Paragraph B of the Council's answer seems highly questionable in three respects. First, it takes no account of Article IX of the treaty, which gives the Assembly the right to scrutinise the Council's application of the modified Brussels Treaty. It is evident that this right covers whatever may be the Council's interpretation of the treaty, and hence of its Article XII, and that rejecting the Assembly's views out of hand conforms neither to the spirit nor to the letter of the treaty. Admittedly, the Council's point of view would be reasonable if it were accompanied by proper arguments, but the authoritative way in which it has acted in such a matter is not acceptable when the Assembly had put forward detailed arguments that have not really been refuted. The Council's answer to the four questions should probably be compared to the attitude it has constantly adopted towards the Assembly in recent years, and particularly in recent months. It is constantly trying to play down the Assembly's role or even silence it, although it has played an essential part in the reactivation of WEU, especially through its communications to the press. This was again plain when the Torrejon satellite centre was inaugurated on 28th April, although the Assembly had played a leading role in preparing the decisions that led to the centre being set up, and in the priority the Council gave to informing the European Parliament after its ministerial meetings. There seem to be increasing indications that the Council is preparing to seize the first suitable opportunity, for instance the so-called 1998 deadline", to free itself as discreetly as possible from an Assembly that bothers it. Secondly, the Assembly has never requested arbitration although, in three places, the Council's answer says that it has, but it has constantly, and in vain, insisted that the Council obey the law founded in the modified Brussels Treaty and turn to an impartial, competent authority to formulate this law. Finally, in referring to possible "arbitration" and the absence of "a constitutional practice", the Council takes no account of the realities of the modified Brussels Treaty and the Europe of today. The modified Brussels Treaty is the first treaty of alliance that makes action by the governments in a specific area subject to scrutiny by a parliamentary assembly. Hence, there cannot be a precedent outside WEU. Nor is one to be found in the framework of WEU because, although there have sometimes been differences between the Council and the Assembly over the application of the treaty, this is the first time there has been a difference over the treaty itself. Consequently there is no precedent that can be invoked or rejected. The Council was free to consult independent experts. It did not wish to do so because it wants an interpretation of Article IX of the treaty that is as restrictive as possible about the rights and duties of the Assembly. If we now examine the arguments put forward by the Council on the substance of the problem, it should be noted that, on two points, it admits that the Assembly is right: (i) It recognises that Article XII of the modified Brussels Treaty is "a denunciation clause, not a termination clause", which allows a satisfactory interpretation of the French text of Article J.4, paragraph 6, of the Maastricht Treaty, referring to the "echeance" of 1998 in the context of Article XII of the Brussels Treaty: this should be the "date" of 1998, as the English text says, and not the end of the treaty. (ii) It says that Article XII specifies 25th August 1998 as the date of application of the denunciation clause. However, as this article lays down that a period of one year must elapse between the denunciation of the treaty by a member country and it taking effect, it accepts implicitly that termination of the treaty through the denunciation of all the high contracting parties would be possible only in 1999. However, there are still serious differences between the views of the Council and those of the Assembly and, in the answer to the four written questions and in all its earlier statements, the Council attributes to the Assembly arguments that it has never used and does not answer those that it has actually used. The Council persists in deriding the serious arguments put forward by the Assembly by pretending to believe that the latter considers the change in the numbers of the articles of the modified Brussels Treaty that are maintained in the modified treaty, in particular Article XII, to be an argument in favour of its views. This it has never done. It has advanced infinitely more relevant reasons of another kind. The Assembly can but approve the Council's declaration that "a multilateral treaty establishes a community of interests, rights and obligations, the duration of which must be explicitly defined and accepted by all the parties. In no case can an extension of duration be imposed to parties by other parties subsequently acceding". What the Assembly has maintained is that the 1954 Paris Agreements established a new treaty and not an amended version of the l948 Brussels Treaty. In order to grasp this fact properly, the background in 1954 should be recalled. On 30th August, the French National Assembly, in a vote on a previous question, rejected the treaty setting up a European Defence Community. This treaty, which had been signed in 1952 by the six countries of the European Coal and Steel Community, was to allow the Federal Republic of Germany to accede to the North Atlantic Treaty, which the United States insisted on as a condition for deploying its forces on the territory of the Federal Republic in the framework of NATO. The United Kingdom was not a signatory. The NATO countries therefore had to find a means of allowing the Federal Republic to participate in NATO while satisfying the French Parliament on a number of points, inter alia by ensuring: (i) a link between Community Europe and defence Europe as the Council had done for handling economic matters with the United Kingdom, which, in 1954, did not belong to the ECSC nor, subsquently, to the EEC or Euratom; (ii) the participation of the United Kingdom in the organisation of Europe's defence; (iii) controlled limitation of the levels of forces and armaments of the Federal Republic of Germany which, at the same time, placed the latter on an equal footing with its allies; (iv) compatibility between these obligations and the participation of member countries in NATO. In view of the urgency of the decisions to be taken, the nine countries concerned, i.e. the seven countries which were to accede to WEU, the United States and Canada, decided to use the text of the 1948 Brussels Treaty as a basis for negotiating a satisfactory treaty at the conference they held in London from 28th September to 3rd October 1954. The 1948 treaty was obviously still in force at that time, but it had lost all practical impact since, in 1950, the exercise of Western Union's responsibilities had been transferred to NATO and the draft treaty on the EDC was intended to replace it completely. This was also the purpose of the four protocols comprising the Paris Agreements of 23rd October 1954 which came into force on 6th May 1955, of which only Protocol No. I modified the Brussels Treaty, whereas the other protocols did not refer to it but to the text of the draft treaty setting up the EDC. This proves that these protocols could take up sections of a treaty that never came into force just as well as sections of a treaty which, after having been ratified, had fallen into abeyance. The reasons that led the Assembly to consider that the Paris Agreements were not a revision of the Brussels Treaty but a new treaty may be summed up as follows: (i) The aim of the treaty is new. The 1948 treaty was a complement to the action taken by the nations that united during the second world war to put an end to the grip of National Socialism in Europe. At the time the United States was completing the evacuation of its expeditionary force from Europe, the European countries that had participated in the anti-Nazi coalition signed a treaty designed to maintain an alliance against any re-emergence of Nazism in Germany and, on this point, the 1948 treaty was explicit since it specified that the high contracting parties were resolved "to take such steps as may be held necessary in the event of renewal by Germany of a policy of aggression". On the contrary, the Paris Agreements take into account the birth of a new organisation aiming at "the progressive integration of Europe", which makes it one of the main foundations of the wider European Union most recently defined in the Maastricht Treaty in which reunified Germany has, from the outset, been an essential part. Thus, while the 1948 Brussels Treaty was the last stage in the history of a divided Europe, the 1954 Paris Protocols marked one of the first stages in the building of a new Europe, more widespread and determined to unite its members by a process of integration. (ii) The 1954 Agreements concern a new entity. The accession of Germany and Italy to the Paris Agreements was not, as the Council claims, a simple enlargement of the Brussels Treaty to include two new members; in view of the importance of those countries, it completely transformed the nature of the coalition by giving it a European dimension. From this point of view, the accession of Germany and Italy to the Paris Protocols is in no way comparable with the accession of Portugal and Spain to the modified Brussels Treaty because the latter was simply an enlargement of the part of Europe that had acceded to the modified treaty. On the contrary, the accession of Germany to a treaty specifically directed against it would have been nonsensical. (iii) The Paris Agreements established a new organisation, as indicated by the new title. The Western Union of 1948 was the prolongation, for the countries concerned, of the 1945 alliance. The Western European Union of 1954 was no longer just an alliance but the military aspect of the building of a new Europe whose defence was organised in the framework of the Atlantic Alliance, as underlined in Article IV of the new treaty. The object of WEU was no longer military deployment since, in 1950, Western Union had practically disappeared in favour of NATO, but to allow all European countries to participate in NATO through the restoration of mutual confidence, based on the controlled limitation of armaments. (iv) The Paris Agreements are not limited to Protocol No. I modifying the Brussels Treaty but also include Protocols Nos. II, III and IV which are completely new compared with the 1948 treaty, although an integral part of what is called the "modified Brussels Treaty", as specified in Article I of Protocol No. I. This means that the convenient name of modified Brussels Treaty is merely a semantic facility and that it is the protocols adopted on 23rd October 1954 as a whole that form a treaty which has in common with the 1948 treaty only the fact that certain paragraphs were drawn from it, whereas its substance is totally different. The title of modified Brussels Treaty might well have been abandoned and replaced by the more accurate title of Paris Agreements. It is obviously the new entity set up by the Paris Agreements that is concerned by Article XII of the 1954 treaty, even if its text is identical with that of Article X of the 1948 treaty. It should also be noted that Article VI of Protocol No. I specifies that "the present protocol and the other protocols listed in Article I above", i.e. Protocols Nos. II, III and IV, "shall enter into force when ... the instrument of accession of the Federal Republic of Germany to the North Atlantic Treaty has been deposited with the Government of the United States of America", which was done on 6th May 1955. This means that the Paris Agreements do not have as their sole origin the 1948 treaty but also the 1949 Washington Treaty which is one of the bases for their validity, as is also the draft treaty setting up the European Defence Community, as we have seen. This applies to all the protocols, i.e. also to Protocol No. I modifying the 1948 treaty. How can it be claimed, therefore, that the Brussels Treaty was anything other than a text used by those who drafted Protocol No. I because it was convenient and that there is de jure continuity between the two treaties? Let us suppose that Protocol No. I should be considered as a simple revision of the Brussels Treaty. Should it then be concluded that Protocols Nos. II, III and IV, which have nothing to do with the 1948 treaty, would remain valid while Protocol No. I might be denounced as from 1998? Article I of Protocol No. I rules out such reasoning, which would moreover be absurd. The four protocols as a whole form a single, new treaty that came into force on 6th May 1955. (v) These agreements have new basic principles. Instead of bringing states together in a coalition, it invokes the representation of the people, in Article IX, which gives WEU a parliamentary dimension that the 1948 Western Union did not have. (vi) It is clear that, for the signatories, the controlled limitation of forces and armaments, the foundation of the reconciliation of the nations of Europe, was intended to last at least half a century, because no one could foresee in 1954 that this reconciliation would come about so swiftly and completely as has been the case. It is in this perspective that the Paris Protocols were ratified by the parliaments of the signatory countries. The entire subsequent evolution of WEU, its enlargement and the role attributed to it by the Maastricht Treaty confirm that all that the treaty establishing it has in common with the 1948 treaty is merely a number of expressions that the authors of the treaty had drafted well enough for them to be applied, in an entirely new situation, to different states for the pursuit of aims that were not those of the signatories of the 1948 treaty. It is regrettable that the Council is resorting to verbal skirmishes to hasten unduly the time when member countries will be able to break away from the treaty. ---------------- 1. Adopted unanimously by the committee. 2. Members of the committee: Mr. Stoffelen (Chairman); Lord Finsberg, Mr. De Decker (Vice-Chairmen); MM. Aarts (Alternate: Eisma), Agnelli, Alegre, Andreotti (Alternate: Gottardo), Benvenuti, Bowden, De Hoop Scheffer, Ehrmann, Fabra, Feldmann, Foschi, Goerens, Homs I Ferret, Sir Russell Johnston, Mr. Kaspereit, Lord Kirkhill (Alternate: Marshall), MM. Kittelmann, de Lipkowski, Maroni, Moya, Mueller, d'Ornano (Alternate: Baumel), Pecriaux, de Puig, Reddemann, Rodrigues, Roseta, Seeuws, Seitlinger, Soell, Ward, Wintges. ------- For information, please contact: Yves ROBINS, Press Counsellor _/ _/ _/_/_/_/ _/ _/ | ASSEMBLY OF WESTERN EUROPEAN UNION _/ _/ _/ _/ _/ | 43, avenue du President Wilson _/ _/ _/ _/_/_/ _/ _/ | F-75775 Paris cedex 16 France _/_/_/_/ _/ _/ _/ | Tel 331-47235432; Fax 331-47204543 _/ _/ _/_/_/_/ _/_/_/ | E-mail: 100315.240@Compuserve.com