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Published online by Cambridge University Press: 16 May 2017
After the second World War Poland concluded six bilateral treaties of alliance and became party to one multilateral treaty of alliance. The bilateral treaties are treaties of friendship and mutual assistance signed with the Soviet Union, Yugoslavia, Czechoslovakia, Bulgaria, Hungary and Rumania.
1 Signed in Moscow April 21, 1945, 12 U.N. Treaty Series 391 (cited hereafter as U.N.T.S.). For a short analysis of the legal aspects of Poland's bilateral alliances see Klafkowski, Skubiszewski, Wiewióra, Umowy miedzynarodowe w świetle Konstytueji Polskiej Rzeczypospolitej Ludowej. Zagadnienia wybrane, 2 Zagadnienia prawne Konstytueji Polskiej Rzeczypospolitej Ludowej 540 (1954).
2 Signed in Warsaw March 18, 1946, 1 U.N.T.S. 53. In its note of Sept. 8, 1949, the Polish Government declared that the treaty with Yugoslavia “had been destroyed” as the result of certain facts the responsibility for which has been attributed in this note to Yugoslavia, Zbiór Dokument6w 769, 775 (1949). In the note of Sept. 30, 1949, the Polish Government stated that this treaty ceased to be binding, ibid,at 777, 778. At that time both parties considered their treaties as dissolved, although they disagreed as to who was responsible for the dissolution. At the time of writing, the parties had neither revived the old alliance nor concluded a new one. This paper deals with treaties which are in. force and therefore we shall omit the treaty with Yugoslavia from our discussion.
3 Signed in Warsaw March 10, 1947, 25 U.N.T.S. 231.
4 Signed in Warsaw May 29, 1948, 26 U.N.T.S. 213.
5 Signed in Warsaw June 18, 1948, 25 U.N.T.S. 319.
6 Signed in Bucharest Jan. 26, 1949, 1 Documents and State Papers 684 (Dept. of State, 1948).
7 Signed in Warsaw May 14, 1955; 49 A.J.I.L. Supp. 194 (1955). For a short discussion of this treaty see Lachs, “Le Traité de Varsovie du 14 Mai 1955,” 1 Annuaire Français de Droit International 120 (1955); Gelberg, Uklad warszawski (1957).
8 War and Peace Aims of the United Nations 354 and 361 (Holborn ed., 1943).
9 Cf.Kulski, ‘ ‘ The Soviet System of Collective Security Compared with the Western System,” 44 A.J.I.L. 453, 460-461 (1950); Bowett, “Collective Self-Defense under the Charter of the United Nations,” 32 Brit. Year Bk. of Int. Law 130,143-144 (1955-1956).
10 There are no grounds to see any “anti-Western meaning” in the formulas used by treaties of alliance concluded by Poland between 1945 and 1949. The opposite view is expressed by Kulski, note 9 above, at 456-459. In some of the agreements signed by the Balkan members of the system the casus foederisis worded more generally. Cf.Goure, “The Eastern European Bloc and the United Nations Charter,” 3 Col. J. Int. Affairs 36, 37-38 (1949), and Howard, “The Soviet Alliance System and the Charter of the United Nations,” 8 Commission to Study the Organization of Peace 65, 73, note 14. On the other hand a more limited formula has been used in the Soviet-Finnish alliance of April 6, 1948, 48 U.N.T.S. 149. Contrary to what Bowett writes, loc. cit.note 9 above, the casus foederisin this treaty is not typical in any sense, as it restricts Finland's duties to the case of military aggression (on the part of Germany or any state allied to the latter) committed “across the territory of Finland” (Art. 1, par. 1). Cf.Salvatorelli, “Formazione e caratteristiche del bloco orientale,” 3 Comunità internazionale 397, 399-400 (1948), and Meissner, Das Ostpaktsystem Dokumentensammlung 19 (1955). As to the defensive character of the Eastern European alliances in general, see Berezowski, Umowy o pomocy wzajemnej i system bezpieczeiistwa zbiorowego, Zagadnienie bezpieczeiistwa zbiorowego 101, 129 (1955).
11 This paper is concerned only with those divergencies between the treaties under examination which are relevant to the question whether in Poland's international relations the multilateral alliance has replaced the bilateral alliances.
12 Kesolution of May 14, 1955, on the establishment of a Joint Command, 49 A.J.I.L. Supp. 198 (1955). For a summary of the decisions of the first meeting of the Committee, see 10 Int. Organization 337 (1956). The first in the series of conventions on the status of Soviet troops in the Warsaw treaty countries was signed with Poland on Dec. 17, 1956, 52 A.J.I.L. 221 (1958).
13 Kelsen, ‘ ‘ Collective Security and Collective Self-Defense under the Charter of the United Nations,” 42 A.J.I.L. 783, 784 (1948). There are still some difficulties of definition, but if by saying “force” we mean “physical force,” then it is quite feasible to define this term in a precise way. Kunz, “Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations,” 41 A.J.I.L. 872, 875-876 (1947), stresses the necessity of disintinguishing self-defense from self-help and from the socalled “state of necessity.“
14 Bowett, note 9 above, at 147.
15 Quincy, Wright, ‘ ‘ The Concept of Aggression in International Law,'’ 29 A.J.I.L. 373 (1935);Google Scholar “The Prevention of Aggression,” 50 ibid.514 (1956).
16 Kelsen, The Law of the United Nations 791-792 (1950); Recent Trends in the Law of the United Nations 914 (1951); cf.also Goodrich and Hambro, Charter of the United Nations 301 (rev. ed., 1949).
17 It seems that Kunz, note 13 above, at 876, is mistaken when he says that Art. 51 puts the right of self-defense as a “ right “ of natural law.
18 Cf.Stone, Legal Controls of International Conflict 243 (1954).
19 Kelsen, The Law of the United Nations 918 (1950).
20 Ibid.at 917.
21 To prove this contention we may quote Kelsen himself: cf.his observations at pp. 795-796, 797 and 798. The Spanish version is in this respect identical with the English one: ataque armado.
22 Cf.Kelsen, Recent Trends in the Law of the United Nations 918 (1951).
23 The problem of the renunciation or the exclusion of the right of self-defense presents itself in quite a different light as far as the enforcement action of an international organization is concerned. Here the Member State has recognized the responsibility of the Organization for the maintenance and restoration of peace on the world or regional plane. ‘ The Member State thus agrees to acquiesce in the Organization applying force with respect to it in circumstances defined in the Organization's statute or other instrument. The state makes concessions to the Organization in the important field of the use of force, but at the same time it expects that the Organization will help it as the need may be. This is not, however, the case in Art. 107. The governments authorized under Art. 107 do not act except in their own names. They do not exercise any function for a community of nations. There can be no doubt that Art. 107 recognizes the freedom of action and the validity of this action as applied to a former enemy state. But it does not have the same effect with regard to third parties. Cf.Goodrich and Hambro, op. cit.note 16 above, at 534.
24 Bowett, note 9 above, at 131, ascribes some importance to this formula.
25 Cf.,among others, Weightman, “ Self -Defense in International Law,” 37 Va. Law Rev. 1095, 1109-1110 (1951); Goodrich and Hambro, op. cit.note 16 above, at 300, speak of Art. 51 as defining “ t h e circumstances under which the right of self-defense may be exercised.” These circumstances amount to limitations of the right of self-defense in its traditional meaning.
26 This restriction is stated by many commentators on Art. 51; of.Kunz, note 13 above, at 878, and Beekett, The North Atlantic Treaty, the Brussels Treaty and the Charter of the United Nations 13 (1950); Bramson, “Zagadnienie samoobrony w systemie bezpieczeństwa zbiorowego,” 3 Annales TJniversitatis Mariae Curie-Sklodowska, Sectio G, 63, 81-82. Waldock, “The Regulation of the Use of Force by Individual States in International Law,” 81 Academie de Droit International, Recueil des Cours 451, 497-498 (1952), argues that there is still a right of self-defense in face of an imminent threat of attack. According to him, “ t o read Article 51 otherwise is to protect the aggressor's right to the first stroke,” ibid,at 498. This is an overstatement, as there can be no question of any ‘ ‘ rights” of an aggressor in this respect.
27 United Nations, Atomic Energy Commission, Special Supplement at 19 (1946).
28 [1949] I.C.J. Rep. at 35. Cf.Waldock, loc. cit.note 26 above, at 502: “Here the Court seems to have given an emphatic warning that the right of self-defense is to be nurrowly interpreted.” The Court, however, did not recognize the right of states to use force against another state while there is an imminent threat of armed attack. In October, 1946, prior to the mine-swReping operation which took place in November, the United Kingdom sent four warships through the Corfu Straits. The ships were kept at action stations during the passage. The Court did not dispute the legality of this measure. But contrary to what Professor Waldock says at another place in his lecture, ibid,at 498, the Court's decision does not condone resort to force in face of imminent threat of attack. The British action in October, 1946 (but not in November of that year) consisted only of readiness to act in self-defense if again attacked by Albania. Preparation of self-defense, whatever form it takes, is permitted by Article 51. Demonstration of force and actual use of force against another country are two different things. It is not quite clear what makes Professor Waldock, ibid,at 501, conclude that “the Court did not take a narrow view of the inherent right of self-defense.” This statement is not consistent with the opinion of the same author quoted at the beginning of this footnote. Cf.the discussion of the Corfu Channel Case by Schwarzenberger, Report on Some Aspects of the Principle of Self-Defense in the Charter of the United Nations and the Topics covered by the Dubrovnik Resolution, International Law Association, New York University Conference (1958) at 22-24 and 36-40 (1958).
29 Repertoire of the Practice of the Security Council 1946-1951 at 448 (1954).
30 Ibid,at 449-450.
31 The right of self-defense was also mentioned in 1948 in the Security Council when it debated the Palestine question, namely, in relation to the dispatch of Egyptian and Transjordan troops to Palestine after the proclamation of the State of Israel. This was not, however, the explanation offered by the countries involved, i.e.,Egypt and Transjordan. Cf. ibid,at 493. Writing about the hostilities between the United Kingdom and France on the one hand, and Egypt on the other, in 1956, Green, “The Double Standard of the United Nations,” 11 Yearbook of World Affairs 104, 120 (1957), argues that the Western Powers “ h a d grounds to exercise their right of self-defense in protection and vindication of their treaty rights to insulate, even by military measures, the Suez Canal after the rejection of their ultimatum by Egypt… . “ The resolution adopted by the General Assembly on Nov. 2, 1956, leaves no doubt as to the fallacy of this view. See the debate in General Assembly, First Emergency Session, Official Records, Plenary Meetings 2-36 (1956).
32 Zbiór Dokumentów 97 (1948).
33 Ihid.at 445.
34 Zbiór Dokumentów 3073 (1954).
35 Zbiór Dokumentów 185 (1951).
36 Dinh, ‘ ‘ La Légitime Défense d ‘après la Charte des Nations Unies,'’ 52 Revue Générale de Droit International Public 223, 244 (1948); Kelsen, Recent Trends in the Law of the United Nations 914 (1951); Stone, op. cit.note 18 above, at 245: “The very notion of collective self-defense seems contradictory.“
37 Bowett, note 9 above, at 150; cf.also ibid,at 138-140.
38 Ibid,at 156. “This is not to suggest,” Bowett writes further, “that such collective security action is illegal; but, not being self-defense, the legality depends on considerations different from those governing the legality of action in collective selfdefense.“
39 Ibid,at 160.
40 12 Documents of the United Nations Conference on International Organization at 680 et seq.(1945). Cf.also Vol. 11 at 53, 59, and 121. See comments by Goodrich and Hambro, op. cit.note 16 above, at 297; Kunz, note 13 above, at 873; Waldock, loc. cit.note 26 above, at 497.
41 This interpretation of Art. 51 has been accepted by many authors. Cf.Goodrich and Hambro, op. cit.note 16 above, at 301; Kunz, note 13 above, at 875; Kulski, note 9 above, at 463; Kelsen, “Collective Security and Collective Self-Defense under the Charter of the United Nations,” 42 A.J.I.L. 783, 789, 792 (1948); The Law of the United Nations 792 (1950); Kecent Trends in the Law of the United Nations 915 (1951); Weightman, note 25 above, at 1111-1114; Waldock, loc. cit.note 26 above, at 504; Bebr, “Regional Organizations: A United Nations Problem,” 49 A.J.I.L. 166, 173 (1955). On the other hand, Dinh, note 36 above, at 244-248, restricts the right of collective self-defense, as understood above, to states which are parties to a regional arrangement. As to the terminology used in Art. 51, cf.Bowett, note 9 above, at 130- 131, and the writers cited by him. Green, note 31 above, at 120, probably too much impressed by the language of Art. 51, employs the strange expression “ t o come to the collective self-defense” of a state.
42 General Assembly, 6th Sess., Official Records, Plenary Meetings, 363rd Meeting, par. 140.
43 Bowett, note 9 above, at 150.
44 Ibid.at 153.
45 Term used in a different context by Kunz, ‘’ The Contractual Agreements with the Federal Republic of Germany,” 47 A.J.I.L. 106, 110 (1953).
46 The opposite view is expressed by Bebr, note 41 above, at 183. Cf.Bowett, note 9 above, at 150: “ … the mere omission to restate the duties imposed by the Charter is not in itself illegal.“
47 Goure, note 10 above, at 39, and Howard, note 10 above, at 79, classify the Eastern European alliances under Art. 51 with some hesitation. Bebr, note 41 above, at 183-184, writes that these alliances go beyond the standard of Art. 51, while Bowett, note 9 above, at 143, expresses the view that it was not intended to link these alliances to the terms of that article.
48 Cf.the Egyptian definition of regional arrangements submitted to the San Francisco Conference, 12 Documents of the United Nations Conference on International Organization 850 (1945).
49 Kelsen, The Law of the United Nations 324, 433 (1950).
50 A view to the contrary is expressed by Goodrich and Hambro, op. eit.note 16 above, at 316. They do not seem to take into account the fact that the casus foederisin the Eastern European bilateral alliances is formulated more broadly so as to comprise only ex-enemy states and that some of these alliances were signed with ex-enemy states. This must exclude them from the scope of the exceptional provisions of Art. 53, par. 1. On the other hand, the participation of ex-enemy states which are not Members of the United Nations does not deprive an alliance of the character of a “collective self-defense” measure under Art. 51. We do not discuss this problem. Cf.Kelsen, The Law of the United Nations 793 (1950), and Eecent Trends in the Law of the United Nations 917, 918 and 925 (1951).
51 Bebr, note 41 above, at 183 and 184 and Bowett, note 9 above, at 144, forget these two considerations when they treat all the Eastern alliances en blocas falling under Art. 107.
52 Kelsen, The Law of the United Nations 782 (1950).
53 Cf.Bowett, note 9 above, at 156 and 157.
54 Ibid,at 155.
55 Stone, op. cit.note 18 above, at 265. Compare his justified criticism concerning Beckett's view, ibid,at 264-265.
56 The opening sentence in par. 13 of the memorandum, 2 Repertory of Practice of United Nations Organs 431 (1955). The resolution referred to is Resolution 494 (V).