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The Helsinski Declaration: Brobdingnag or Lilliput?

Published online by Cambridge University Press:  27 February 2017

Harold S. Russell
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Extract

On August 1, 1975 the Chiefs of State and other high representatives of 33 European countries, the United States, and Canada signed the Final Act of The Conference on Security and Cooperation in Europe (CSCE) in Helsinki. This event, described as the largest meeting of European leaders since the Congress of Vienna or by the more enthusiastic as the largest such meeting in history, had been little discussed in the North American press and caught the American public largely unprepared. Logic dictated that such an impressive gathering had to have an equally impressive purpose, and editorial writers struggled to explain the significance of the occasion. The general conclusion was that the President had demeaned himself by recognizing Soviet postwar hegemony in Eastern Europe without any substantial quid pro quo. George Ball called it “a defeat for the West.” Much of this comment in the media was without benefit of the complex document actually signed at Helsinki, covering sixty printed pages, which was made available to the public only one week prior to the signing. The Department of State, concerned that euphoria over this event might lead to increased pressure for withdrawal of U.S. forces from Europe and for other forms of unilateral disarmament, played down the Conference as an exercsie which was primarily of interest to the allies of the United States and which in any case had not produced documents of a legally binding character. For those determined to oppose the Conference, this appeared to be some form of coverup, whereas to those who saw merit in the texts, this seemed to depreciate the usefulness of some important steps in the right direction. Confusion over a document as carefully drawn, as vague and full of interrelationships and loopholes as is the Final Act is natural, and the results of the Conference should provide many a scholar a rich harvest of material for study for years to come.

Type
Research Article
Information
American Journal of International Law , Volume 70 , Issue 2 , April 1976 , pp. 242 - 272
Copyright
Copyright © American Society of International Law 1976

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References

1 European participants were: Austria, Belgium, Bulgaria, Cyprus, Czechoslovakia, Denmark, Finland, France, German Democratic Republic, Federal Republic of Germany, Greece, the Holy See, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Spain, Sweden, Switzerland, Turkey, the Union of Soviet Socialist Republics, the United Kingdom, and Yugoslavia. On the nature of Eastern European representation at the Conference, see Schröder, Supremacy of the Communist Tarty of the Soviet Union Recognized in International Law?, infra p. 322.

2 The complete text of the CSCE “Final Act” has been reproduced in 73 DEPT. STATE BULL.323 (1975) and 14 ILM 1293 (1975).

3 TIME, Aug. 4, 1975, at 18.

4 Id., Aug. 11, 1975, at 20.

5 Mutatis Mutandis, Chicago Sun-Times, Aug. 1, 1975, at 45.Jerry Don't Go, The Wall Street Journal, Aug. 23, 1975, at 16.Chicago Tribune, July 31, 1975, at 14. Reston, Can Ford Make the Principles Prevail?,The International Herald Tribune, Aug. 4, 1975, at 9.European Security and Real Detente, N. Y. Times, July 21, 1975, at 20.

6 Newsweek, int. ed., Aug. 11, 1975, at 12.

7 Not all press comment was unfavorable to CSCE; see Behr, …No the Helsinki Pact is not Munich II, Newsweek, supra note 6, at 12; Helsinki Pact Poses Problems for Russ, Chicago Tribune, Aug. 3, 1975, at 4; Let's test the Helsinki Spirit, The Sunday Times (London), Aug. 3, 1975, at 10.

8 Reprinted in Official Documents section, infra.

9 The Romanian Delegation presented a series of proposals designed to implement the principle of nonuse of force. The rationale for these was laid down in BUCHAREST SCIENTIA, May 23, 1973, at 1A.

10 The Government of Switzerland presented a “Draft Convention on a European System for the Peaceful Settlement of Disputes” to Stage 2 of CSCE. This far reaching proposal called for binding settlement of virtually all political and justiciable disputes. Unable to make any real progress on the Swiss proposal, it was decided that a meeting of experts will be convoked, on the invitation of Switzerland, to consider further the Swiss proposal as well as other problems relating to it at some time subsequent to the meeting of representatives (known as “Follow-up to the Conference“) scheduled for Belgrade in 1977.

11 The CSCE document on confidence-building measures provides for a 21-day notice to other participating states of major military maneuvers involving more than 25,000 troops and taking place in Europe or a 250 kilometer band of territory along the western and Baltic frontiers of the Soviet Union. On an explicitly voluntary and bilateral basis, participating states will invite observers from other participating states to attend these military maneuvers. As of January 15, 1976, the NATO allies had notified other participating states of four military maneuvers and invited observers to one. Yugoslavia, Norway, the Netherlands, and Switzerland had also given notice of maneuvers, and the Swiss invited observers. None of the Eastern European countries accepted the NATO invitation to send observers. Romania sent an observer to the Swiss maneuvers. On January 4, the Soviet Union notified other participating states of a military maneuver of “about 25,000 men” to be held in the Caucasus from January 25 to February 6. The Soviet Union invited observers from Romania, Bulgaria, Yugoslavia, Greece, and Turkey; all accepted.

12 The Soviet Union first proposed a European security conference and treaty at the Berlin meeting of Foreign Ministers held on February 10, 1954.

13 Quadripartite Agreement on Berlin, Sept. 3, 1971, 24 UST 2831, TIAS No. 7551, 66 AJIL 242 (1972), 10 ILM 895 (1971).

14 See U.S.-Soviet Communique issued at the Conclusion of President Nixon's Visit to Moscow. May 29, 1972. Presidential Documents, June 5, 1972, at 945, 949.

15 Federal Republic of Germany-USSR Non-Aggression Treaty, 9 ILM 1026 (1970); Federal Republic of Germany-Poland: Treaty concerning Basis for Normalizing Relations, 10 ILM 127 (1971).

16 Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by the Allied Powers, signed at Berlin, June 5, 1945. 92nd Cong., 1st Sess., Senate Comm. on Foreign Relations, Documents on Germany, 1944-1970, at 12 (1971); Protocol of the Proceedings of the Berlin (Potsdam) Conference, Aug. 2, 1945, id. at 32; 3 BEVANS 1207; Dept. of State Press Release 238 (1947).

17 Rovine, Digest of United States Practice in International Law, 1974, 179 (1975).

18 The Soviet Union had already concluded among others the following bilateral cooperation agreements with the United States prior to CSCE: Agreement on Cooperation in the Field of Agriculture, June 19, 1973, 24 UST 1439, TIAS No. 7650, 12 ILM 907 (1973); Agreement on Scientific and Technical Cooperation in the Field of Peaceful Uses of Atomic Energy, June 21, 1973, 24 UST 1486, TIAS No. 7655, 12 ILM 905 (1973); General Agreement on Contacts, Exchanges and Cooperation, June 19, 1973, 24 UST, TIAS No. 7649, 12 ILM 911 (1973); Agreement on Cooperation in the Feld of Environmental Protection, May 23, 1972, 23 UST 845, TIAS No. 7345, 11 ILM 761 (1972); Agreement on Cooperation in the Field of Medical Science and Public Health, May 23, 1972, 23 UST 836, TIAS No. 7344, 11 ILM 776 (1972); Agreement on Cooperation in Studies of the World Ocean, June 19, 1973, 24 UST 1452, TIAS No. 7651, 12 ILM 909 (1973); Agreement concerning Cooperation in the Exploration and Use of Outer Space for Peaceful Purposes, May 24, 1972, 23 UST 867, TIAS No. 7347, 11 ILM 766 (1972).

19 It should be noted that the European Community operated as a political entity at CSCE, developing common positions and their own caucuses. Many diplomats representing countries in the Nine were very encouraged at this ability to work together and felt it had important implications for the future.

20 Final Acts can be legally binding instruments. For example, Final Acts of the Extraordinary Administrative Radio Conference to Allocate Frequency Bands for Space Radio Communication Purposes, Nov. 8, 1963, 15 UST 887, TIAS No. 5603.

21 The United States was satisfied that this objective had been obtained in all texts with the possible exception of the text on confidence-building measures which simply stated that the participating states “have adopted the following” and then stated a number of measures that the participating states “will” take. In view of the fact that this language is ambiguous as to the level of commitment intended, the U.S. delegation tabled the following interpretive statement: The Government of the United States of America does not regard “Document on Confidence-Building Measures and Certain Aspects of Security and Disarmament” to be legally binding. No delegation objected.

22 Article 102 provides that: 1. Every treaty and every international agreement entered into by any Member of the United Nations … shall as soon as possible be registered with the Secretariat and published by it.

23 73 DEPT. STATE BULL.349 (1975).

24 In his speech at Stage 3, Secretary-General Waldheim observed that: We are all conscious that the Final Act is not a document which is legally binding on governments; that it provides for no enforcement mechanism.

25 See Rosenstock, The Declaration of Principles of International Law Concerning Friendly Relations: A Survey, 65 AJIL 713 (1971); and Houben, Principles of International Law Concerning Friendly Relations and Cooperation Among States, 61 AJIL 703 (1967).

26 The fourth paragraph of the CSCE Rules of Procedure provided: Decisions of the Conference shall be taken by consensus. Consensus shall be understood to mean the absence of any objection expressed by a Representative and submitted by him as constituting an obstacle to the taking of the decision in question.

27 This principle is the third principle contained in the CSCE “Declaration on Principles Guiding Relations between Participating States.” Because of its treatment at this point, it is omitted from the list of principles discussed in Section VIII infra.

28 See note 5 supra.

29 The Warsaw Treaty cited note 15 supra, dealt with the inviolability of frontiers issue as follows: Aware that the inviolability of frontiers and respect for the territorial integrity and sovereignty of all States in Europe within their present frontiers are the basic condition of peace, have agreed as follows:

30 At Stage I the Soviet Union proposed the following texts for the principles of Inviolability of Frontiers and Territorial Integrity: —inviolability of frontiers, in accordance with which the participating States regard the existing frontiers in Europe as inviolable now and in the future, will make no territorial claims upon each other and acknowledge that peace in the area can be preserved only if no one encroaches upon the present frontiers; —territorial integrity, in accordance with which the participating States will unreservedly respect and observe the territorial integrity of all States in Europe within their present frontiers;

31 The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, GA Res. 2625(XXV), GAOR, 25th Sess., STOP. 28, at 85, UN Doc. A/8028 (1970), treated inviolability of frontiers as a facet of the principle of refraining from the threat or use of force: Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. On July 19, 1975 at the time the Declaration on Principles was formally adopted by Committee I, the Chairman made a statement, to which no objection was raised, which made the point that the principles are in conformity with the Declaration on Friendly Relations.

32 See ROVINE, supra note 17, at 672-73.

33 The Minister for Foreign Affairs of the Federal Republic of Germany, Hans-Dietrich Genscher, said to the Bundestag on July 25, 1975: “The Conference has not finalized the status quo in Europe. And what the Conference did not do by texts we should not do by words.” 2 The Bulletin-Archive Supplement 4, No. 8, Press and Information Office of the Government of the Federal Republic of Germany (1975). Unfortunately most Western commentators have not heeded Mr. Genscher's advice.

34 The FRG's reservation in particular stated that: Before the delegation of the Federal Republic of Germany can give its consent to the final formulation of the Principle of Inviolability of Frontiers … agreement must have been reached on the following: 1. On the principle to which the formulation concerning “peaceful change” will be attached; 2. On a precise formulation of “peaceful change” in this new context. Three more conditions were added.

35 C. L. Sulzburger concluded that application of the principle to “all frontiers” of participants was a diplomatic error in that it represented U.S. acceptance of the Soviet position in the Sino-Soviet border controversy. A worse misreading of the text is hardly imaginable. A Cold Peace for a Cold War, International Herald Tribune, Aug. 4, 1975, at 4.

36 N.Y. Times, Sept. 27, 1968, at 14.

37 735 UNTS 218.

38 It should be recognized that language of this kind is not unique. The Declaration on the Strengthening of International Security, GA Res. 2734 (XXV), GAOR, 25th Sess., SUPP. 28, at 22, UN Doc. A/8028 (1970) contains a clause as follows: [The General Assembly] solemnly reaffirms the universal and unconditional validity of the purposes and principles of the Charter of the United Nations as the basis of relations among States irrespective of their size, geographical location, level of development or political, economic and social systems and declares that the breach of these principles cannot be justified in any circumstances whatsoever.

39 Mr. Brezhnev's speech to Stage 3 of CSCE on Thursday, July 31, 1975, contained the following paragraph: The experience of the work of the Conference provides important conclusions for the future, too. The major one which Is reflected in the final document is that: no one should try to dictate to other peoples on the basis of foreign policy considerations of one kind or another the manner in which they ought to manage their internal affairs. It is only the people of each given State and no one else, who have the sovereign right to resolve their internal affairs and establish their internal laws. A different approach would be perilous as a ground for international cooperation. Some observers, including Prime Minister Wilson, felt that this paragraph might be intended as a repudiation by the Soviets of the Brezhnev Doctrine. See Chicago Sun Times, Aug. 1, 1975, at 45. Others felt that, although it can be read in this manner, it was intended more as a warning to the West that the Soviet Union will not tolerate excessive pressure from the West on Basket III issues. See Humbug in Helsinki, The Washington Star, Aug. 6, 1975, at A-14.

40 USSR-German Democratic Republic: Treaty of Friendship, Cooperation and Mutual Assistance, Foreign Broadcast Information Service, Oct. 15, 1975, at Dl.

41 Art. 53 of the Vienna Convention on the Law of Treaties, UN Conference on the Law of Treaties, Doc.A/Conf.39/27, June 23, 1969; 63 AJIL 875 (1969). For a discussion of this subject, see 12 Whiteman, Digest of International Law 658 (1971).

42 At the time of the entry of the GDR into the United Nations, the problem was that GDR accession to the Charter would imply acknowledgment under Article 2(1) that the GDR had “equal sovereignty” with all other member states. The three Western Powers were concerned that should the GDR become a beneficiary of this concept without any form of Four-Power disclaimer, despite Article 107, the GDR might argue that the Four Powers had waived their rights by virtue of admission to the United Nations of the two Germanys.

43 The Government of [France, the United Kingdom, the United States of America] wishes to make clear in this connection that the acceptance of the invitation and participation does not affect the legal position that it has hitherto adopted on questions arising out of the special situation in Germany.

44 Statement made by the French delegate on Sept. 28, 1973 and concurred in by the United States and the United Kingdom: As we participate in the work of the Conference on a Declaration of Principles, I would like to mention that joining in such a Declaration can in no way affect the rights and responsibilities of the Four Powers and the corresponding, related quadripartite agreements, decisions and practices referred to in the Quadripartite Declaration of 9th November 1972.

45 Declaration of the Governments of the United States of America, the French Republic, the USSR and the United Kingdom, 67 DEPT. STATE BULL. 623 (1972).

46 See note 13, supra, and Annex II and the letter of the Three Ambassadors to the Federal Chancellor Concerning Interpretation of Annex II.

47 1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state. 2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter. Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.

48 Article 103 of the United Nations Charter has certain anti-Brezhnev Doctrine overtones when recited in the CSCE context: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

49 See further discussion of the Finnish compromise in the discussion on the principle of “Fulfillment in Good Faith of Obligations under International Law” infra Section I.

50 The United Kingdom, Greece and Turkey and Cyprus, Treaty of Guarantee, Aug. 16, 1960, 38 UNTS 3.

51 The reference to “unity” should properly be viewed as a substitute for the references to “the personality of the State” and the “national identity” of peoples contained in the principle of nonintervention in the UN Declaration on Friendly Relations. Supra note 31.

52 See also statement by President Ford on July 25, 1975 at 11 Weekly Compilation of Presidential Documents 780, No. 30 (1975).

53 The USSR has shown some movement toward acceptance of binding dispute-settlement machinery for certain limited purposes in a Law of the Sea Convention. See Adede, , Settlement of Disputes Arising Under the Law of the Sea Convention, 69 AJIL 798 (1975)CrossRefGoogle Scholar. They have also accepted a binding procedure for the settlement of claims under the Convention on International Liability for Damage Caused by Space Objects, March 29, 1972, TIAS No. 7762.

54 Named for its principal proponent, Willem Riphagen, Legal Adviser to the Ministry of Foreign Affairs of the Netherlands.

55 For other helpful statements on this subject, see the CSCE Basket II text on arbitration and Agreement between the Government of the United States of America and the USSR Regarding Trade, 67 DEPT. STATE BULL. 595 (1972).

56 See UN Declaration on Friendly Relations, supra note 31: “The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter.“

57 International Covenants on Human Rights, GA Res 2200(XXI), GAOR, 21st Sess., SUPP. 16, at 49, UN Doc.A/6316 (1966).

58 Article 18, paragraph 3, of the International Covenant on Civil and Political Rights states that: (3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

59 The United States has not ratified the International Covenants on Human Rights.

60 See 5 Whtteman, Digest of International Law 243 (1965).

61 The Declaration on the Strengthening of International Security, supra note 38, a document the Soviet Union has long favored, also contains this idea at paragraph 22.

62 This reference was sufficiently broad to allow interested states to refer to the solution of this problem contained in “The principle of equal rights and self-determination of peoples” in the UN Declaration on Friendly Relations as follows: Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.

63 See Bishop, International Law Cases and Materials 3-6 (3rd ed. 1970).

64 See discussion supra p. 254.

65 The Italian statement read in part as follows: It is the opinion of the Italian government that any obligation wider international law is automatically a legal obligation. This applies to all obligations deriving from provisions of international law whatever the sources of these provisions. We therefore interpret the two expressions at present existing side by side in the formulation of the tenth principle as entirely equivalent to one another ….