Chapter 14 LEGAL REGULATION OF USE OF FORCE § 1 Resort to War and Armed Force On June 17, 1976, Ambassador Robert J. McCloskey, Assistant Secretary of State for Congressional Relations, wrote a letter to Congressman Harold T. Johnson, replying to an inquiry as to the difference between a military alliance and the relationship between the United States and its allies in World Wars I and II. Ambassador McCloskey's letter stated, in part: Strictly speaking, the term "military alliance" signifies a certain type of legal relationship between two or more countries. This legal relationship is contractual in nature and is generally embodied in a treaty or other sufficient international legal instrument. Two principal forms of "military alliance" may be distinguished. One is characterized by an undertaking by the parties to perform certain acts in the event of a specified contingency, such as an attack on one of them by a third country or countries. An example of this type of alliance is the North Atlantic Alliance, the legal basis for which is the North Atlantic Treaty of April 4, 1949. It may be pointed out that modern military alliances such as NATO would more accurately be characterized as "mutual security" or "collective defense" relationships. The other principal form of military alliance is represented by a legal relationship entered into subsequent to the commencement of armed conflict in which one or more of the parties is already engaged. The usual object of such a relationship is to bind the parties to a common effort against a mutual enemy or enemies. The relationship generally lapses with the formal cessation of the conflict.... [D]uring World War II the United States and twentyfive other nations concluded the Declaration of January 1, 1942 (the so-called United Nations Declaration), whereby each party pledged itself to employ its "full resources, military or economic" against whichever member or members of the Tripartite Pact (i.e., Germany, Italy, and Japan) with which it was at war, to cooperate with the other nations party to the Declaration, and not to conclude "a separate armistice or peace" with the enemy. Its legal connotations aside, the term "alliance", along with “ally” and "allies", is very frequently employed to describe two or more countries engaged in armed conflict against a common enemy, notwithstanding the presence or absence of a legal relationship of the sort outlined above. In World War I, for example, the United States went to war in order to preserve and defend its vital interests rather than in order to fulfill some preexisting legal obligation. Nevertheless, the United States is often referred to as an "ally" of the United Kingdom and France in that conflict in light of the extremely high degree of military cooperation and mutual assistance made necessary by the prosecution of a war against a common enemy. Dept. of State File No. P76 0091-1204. The North Atlantic Treaty is at TIAS 1964:63 Stat. 2241; 4 Bevans 828. The U.N. Declaration is at EAS 236; 55 Stat. 1600; 3 Bevans 697. Regional Security Systems North Atlantic Treaty Organization (NATO) Title VIII of the Department of Defense Appropriation Authorization Act, 1977 (P.L. 94-361; 90 Stat. 923), approved July 14, 1976, contains in section 802 a declaration that it is the policy of the United States that equipment procured for the use of personnel of the Armed Forces of the United States stationed in Europe under the terms of the North Atlantic Treaty should be standardized or at least interoperable with equipment of other members of the North Atlantic Treaty Organization. The Secretary of Defense is directed to take into consideration in procurement procedures the cost, function. quality, and availability of the equipment to be procured while carrying out the policy of standardization. The section requires him further to report to Congress whenever he initiates procurement action on a new major system which is not standard or interoperable with equipment of other NATO members. Section 803 of the Act expresses the sense of Congress that weapons systems being developed wholly or primarily for employment in the NATO theater shall conform to a common NATO requirement in order to proceed toward joint doctrine and planning and to facilitate maximum feasible standardization and interoperability of equipment. It declares that a common NATO requirement shall be understood to include a common definition of the military threat to the NATO countries. The section requires the Secretary of Defense to seek areas for cooperative arrangements for coproduction and licensing of production of military equipment among the NATO allies. It states the sense of Congress that standardization on the basis of a "two-way street" between Europe and North America can only work realistically if the European nations operated on a united and collective basis; accordingly, the Congress "encourages the governments of Europe to accelerate their present efforts to achieve European armaments collaboration among all European members of the Alliance." See also S. Rept. 94-878, May 14, 1976, pp. 168-169, and S. Rept. 94-1004 (Comm. of Conference), June 28, 1976, pp. 53-54. A memorandum of understanding between the United States and the Federal Republic of Germany, represented by the Department of the Navy and the Federal Ministry of Defense, respectively, was signed on July 16 and 22, 1976, agreeing upon the joint development of an Advanced Surface to Air Missile System for use in the anti-ship missile defense role. It role. It commits the two agencies to conduct the validation phase, with an estimated total cost of $17 million, of which $10.5 million would be borne by the United States and $6.5 million by the Federal Republic of Germany. The agreement envisions full scale development and follow-on production to be undertaken upon successful completion of the validation phase, in implementation of standardization and rationalization of weapons and equipment developments. On August 4, 1976, the Department of Defense made an announcement jointly with the German Defense Ministry that the U.S. and West German armies had agreed on common components for the gun and engine for their new battle tanks, in a major step toward the goal of standardizing weapons among the North Atlantic allies. The New York Times, Aug. 5, 1976, p. 1. President Ford and Helmut Schmidt, Chancellor of the Federal Republic of Germany, issued a joint statement on mutual defense issues on July 17, 1976, on the occasion of a visit by Chancellor Schmidt to the United States. In it they recognized that the traditional arrangement between their two countries on the offsetting of costs associated with the stationing of U.S. troops in Germany had ceased to be relevant. The text of the joint statement follows: The Chancellor and the President have agreed on a measure exemplifying the close German-American security relationship in Europe, one which strengthens considerably the force posture of NATO defenses. The Federal Republic of Germany has agreed to share as a single payment in the costs of relocating a U.S. combat brigade into the northern area of the Federal Republic, near Bremen. The contribution to this effort amounts to DM 171.2 million ($68.48 million). The Chancellor and the President have also been discussing, over a period of time, the general question of offset arrangements which serve our own and the Alliance's security needs. As is well known, the Federal Republic of Germany through the years has purchased substantial amounts of military equipment in the United States, and is expected to continue to do so. This procurement has, of course, benefitted the United States in the economic sense. It should also be reiterated that since the Federal Republic of Germany became a partner in the NATO effort, it maintained its defense forces in a state of combat readiness equal to the tasks before it. At a time of extreme budgetary and political difficulties in the Alliance, it is reassuring to the U.S. that the Chancellor intends to continue this highly positive and welcome attitude toward the Federal Republic of Germany's NATO commitment. Given the recently introduced changes in the international monetary area, specifically flexible exchange rates, as well as the notably improved strength of the dollar and a more acceptable U.S. balance of payments position, the President and the Chancellor consider that the traditional offset arrangements approach has lost its relevance. Dept. of State Bulletin, Vol. LXXV, No. 1938, Aug. 16, 1976, p. 247. Nonuse of Force The United States abstained on U.N. General Assembly Resolution 31/9, adopted on November 8, 1976, by a vote of 88 to 2, with 31 abstentions, which invited states to examine further a Soviet draft treaty on the nonuse of force and to submit their views and suggestions on the subject for inclusion on the agenda of the General Assembly in 1977. The item, which had been recommended by the First (Political) Committee, was referred to the Sixth (Legal) Committee for further consideration. In the First Committee, U.S. Representative Albert W. Sherer. Jr.. stated, on October 28, 1976: [T]he proposal would add nothing to the obligations which we already have under the Charter and therefore is unnecessary and unwise. Article 2, paragraphs 3 and 4, set forth the Charter's basic obligations with respect to the peaceful settlement of disputes and the nonuse of force, and the primacy of those obligations is firmly established by Article 103. Under closer scrutiny, however, the United States concludes that the Soviet proposal would have us embark on an exercise which purports to expand but which may in fact diminish the Charter's obligations by casting doubt on the solemnity of the legal commitments undertaken therein. The very proposal of a separate treaty on the nonuse of force tends to undermine existing Charter obligations by implying that the member states of the United Nations are still free to adopt or reject the principle of nonuse of force embodied in Article 2, paragraph 4. of the Charter. We reject any such suggestion. |