The North Atlantic Treaty and It's Relationship to Other "engagements" of Its Parties--a Commentary on Article 8

• Citation: Vol. 34 No. 0
• Publication year: 2019

The North Atlantic Treaty and It's Relationship to Other "Engagements" of Its Parties--A Commentary on Article 8

Károly Végh

THE NORTH ATLANTIC TREATY AND ITS RELATIONSHIP TO OTHER "ENGAGEMENTS" OF ITS PARTIES—A COMMENTARY ON ARTICLE 8

Károly Végh^*

Article 8

Each Party declares that none of the international engagements now in force between it and any other of the Parties or any third State is in conflict with the provisions of this Treaty, and undertakes not to enter into any international engagement in conflict with this Treaty.¹

Introduction

With a purpose seemingly distinct from that of the core Articles on collective defence and security cooperation, Article 8 is one of the more rarely referenced provisions of the North Atlantic Treaty.² Article 8—in short terms—regulates the relationship between the obligations of the Parties under the Treaty and other obligations of the Allied Nations.³ Though the Article is a concise, two-part sentence, its exact role and importance is often under-appreciated within the system of the North Atlantic Treaty. While it might be assessed as a standard "treaty conflict" clause, its wording stipulates far wider obligations for the Allies.

This Article briefly discusses the historical background and explores the many layers of this provision, while highlighting its relevance in the current function of the North Atlantic Treaty Organization (NATO). The article places the provision in a 21st century legal and political context, offering an assessment on the legal and other implications Article 8 may have on the Allies' commitments towards each other, seventy years later.

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I. Historical Background

A. The Birth of Article 8—A Short Overview

Though a comprehensive description of the negotiating history of the Treaty is beyond the scope of this article, it is noted here that the draft Articles in the Annex to the "Memorandum by the Participants in the Washington Security Talks, July 6 to September 9, submitted to Their Respective Governments for Study and Comment," the so-called "Washington Paper" did not envisage the current text of Article 8.⁴ Hence, it is logical to conclude that Article 8 was incorporated into the text during the final phase of the formal negotiations on the Treaty.

As an outcome of the "Exploratory Talks," an International Working Group (IWG) was set up to study, negotiate, and finalize the draft in the Washington Paper.⁵ The IWG submitted its Report to the "Ambassadors' Committee" on December 24, 1948 with four Annexes, including Annex A with the revised draft Treaty text and Annex B summarizing some preliminary comments to each of the provisions.⁶ Article 7 of the draft Treaty in Annex A already contained provisions on conflicting obligations, using almost identical terms as the first part of the final Article 8.⁷ Indeed, the first appearance of the text only referred to the declaration of the Parties on their existing "engagements."⁸ The commentary in Annex B note that it was the united Kingdom representative who proposed the inclusion of this Article, together with a sentence obliging member States not to "conclude any alliance or participate in any coalition directed against any other of the Parties . . . ."⁹

A telegram from the British Secretary of State for Foreign Affairs, Mr. Ernest Bevin, to the Ambassador of the U.K. to the U.S. dated November 29, 1948 demonstrates that it was indeed the explicit requirement of His Majesty's

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Government to include an article on avoiding the possibility of conflicts between the North Atlantic Pact and other engagements, including the Dunkirk and Brussels Treaties and also the Anglo-Soviet and Franco-Soviet Treaties from World War II.¹⁰ Interestingly, though, the British proposal consisted of both the declaration on existing obligations and the undertaking for the future; the latter part was considered as having less importance, only being recommended for inclusion.¹¹ As the draft in Annex A referred to above shows, the latter sentence was not accepted at this stage.¹²

Discussions on the then Article 7, later Article 8 of the Treaty rarely appear in the minutes of the final negotiations. Close to the final discussions, the minutes of a meeting on March 15, 1949 briefly refer to the then Article 8, summarizing its intended meaning as follows, "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."¹³

This gives the impression that Article 8 at that time consisted only of a declaration on existing commitments, without referring to future engagements. However, there was a significant, though less exposed discussion in the background on one separate issue; there were proposals for a provision on expulsion from the Alliance if a member State would change its political direction in contravention to the scope of the Pact.¹⁴ During the final phase of the negotiations, as none of the other Parties supported the proposal, the U.S. State Department proposed the inclusion of the previously rejected second sentence to Article 7—introduced by the U.K.—with some amendments, to serve as a substitute for the original draft expulsion clause.¹⁵ Though it was understood that the clause on future undertakings not to establish conflicting engagements would not per se mean automatic expulsion, it is nevertheless

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remarkable that such a potential scope was associated with this additional provision.¹⁶

Thus, as no other Party objected this late addition of text, when the U.S. Department of State released the finalized draft Treaty on March 18, 1949, Article 8 already contained the final wording of the North Atlantic Treaty.¹⁷

If any conclusion can be drawn from the above, it is undeniable that as several other provisions of the Treaty, Article 8 was subject to modifications and development until the last weeks before the signature.

B. Historical Predecessors—Treaties that Influenced Article 8

Both the Annex to the Washington Paper on the framework of the future Pact, and the historical documents of the Exploratory Talks demonstrate the North Atlantic Treaty was largely based upon the 1948 Brussels Treaty and the 1947 Rio Pact.¹⁸

A brief comparison of Article 8 of the Treaty with Article VI of the 1948 Brussels Treaty reveals two key similarities; a declaration on compliance and a commitment not to enter into conflicting alliances. Article 8 consists of one sentence; Article VI divides the provision into two. The first parts of both texts are largely identical, apart from minor wording variations.¹⁹

The second part of the provision in Article 8, obliging members to refrain from entering into other international engagements in conflict with the Treaty, is a diversion from the text of the Brussels Treaty.²⁰ Article VI of the Brussels Treaty expressly refers to restraining its Parties to "conclude any alliance or participate in any coalition" against the others, while Article 8 is rather vague in its determination on "international engagements."²¹ Looking at the 1947 Treaty

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of Dunkirk, concluded between France and the U.K., which arguably influenced several provisions of the Brussels Treaty, the concise structure of the provision and linking of the declaration to a future undertaking are mirrored in Article 8.²² In particular, comparing the second part of Article 8 of the North Atlantic Treaty with paragraph (2) of Article V of the Dunkirk Treaty, the textual resemblance becomes more apparent, though the provisions are not identical.²³

Whilst no direct reference seems obvious, it is notable that Article 20 of the Covenant of the League of Nations also contains a clause on conflicting commitments.²⁴ Moreover, in Article 20 of the Covenant the state Parties, "solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms . . . [of the Covenant]."²⁵

In sum, one may well conclude that the inclusion of Article 8 into the draft North Atlantic Pact, as finally proposed by the U.K., was based primarily upon Western European traditions in concluding alliances and agreements on mutual assistance.

II. Commentary

Based on this historical context of the provision, let us turn now to its textual analysis, disassembling Article 8 into its constituent elements.

The two statements in Article 8 together have four core elements: (1) a declaration on the existing commitments of the Parties, and an undertaking in relation to; (2) engagements towards; (3) other Parties or to third states which shall not be; (4) in conflict with this Treaty.²⁶

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A. A Declaration on Existing Commitments

The first part of Article 8 reads as a solemn declaration by each Party on the compatibility of their existing international engagements with the provisions of the Treaty. The exact role and legal effect of this statement is, however, obscured within the context of the complete Treaty, and there are diverging opinions on its function. Hans Kelsen in his seminal book on the principles of international law, summarizes his assessment as follows, "If the declaration is true, it is superfluous; if it is not true, it has no legal effect."²⁷

Whether it is indeed superfluous, will be discussed below, but let us first analyze its legal effects, or the lack thereof. In 1952, Kelsen argued that such a declaration lacks any legal effect under international law.²⁸ Whilst the provision is formulated in the form of a declaration, it shall be clearly distinguished from unilateral declarations of states which may have legal effects under international law.²⁹ The crucial difference here is that unilateral declarations of states manifest the recognition or interpretation of a legal obligation and the will to be bound; while the present statement refers to facts, it is a statement on existing facts without inferring further...