Law and Peaceful Change in a Subsystem: “Withdrawal” of France from the North Atlantic Treaty Organization

Eric Stein; Dominique Carreau

doi:10.2307/2197283

Law and Peaceful Change in a Subsystem: “Withdrawal” of France from the North Atlantic Treaty Organization

Published online by Cambridge University Press: 28 March 2017

Eric Stein and

Dominique Carreau

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Eric Stein: Affiliation:
University of Michigan Law School
Dominique Carreau: Affiliation:
University of Paris, University of Michigan Law School; University of Paris

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“Nothing can cause a law that is no longer in accord with custom to remain unamended. Nothing can eause a treaty to remain wholly valid once its purpose has altered. Nothing can cause an alliance to continue as it stands when the conditions in which it was created have changed.”—General de Gaulle, on Feb. 21, 1966.

The able American Ambassador to France, Charles E. Bohlen, has declared before a Senate Committee that the withdrawal of France from the NATO integrated commands was “probably the most serious event in European history since the end of the war.” In weighing this assessment, one might well keep in mind de Tocqueville’s reminder that “what we call essential institutions are often only the institutions to which we are accustomed.” Yet there is little question that the French move was a significant development in postwar Europe. The purpose of this article is to explore some implications of this development for the international system and for the international legal order.

Type: Research Article
Information: American Journal of International Law , Volume 62 , Issue 3 , July 1968 , pp. 577 - 640

DOI: https://doi.org/10.2307/2197283 [Opens in a new window]
Copyright: Copyright © American Society of International Law 1968

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References

1 Hearings on The Crisis in NATO before the Subcommittee on Europe of the House Committee on Foreign Affairs, 89th Cong., 2nd Sess., P. 6 (1966).

2 De Tocqueville, Souvenirs d'Alexis de Tocqueville 84 (Gallimard, 1942), as quoted by Sidjanski in Futuribles, Studies in Conjecture (de Jouvenel ed.) at 230 (1965).

3 “ A system exists largely in the eye of the beholder; examining a cluster of individuals and/or groups, and discerning certain regularities and patterns of interaction among them, the researcher may legitimately label as a system that which he observes. In the terminology used here, then, ‘the global system’ is composed of national, sub-national, and extra-national social encities, most of which are to some extent interdependent, and all of which operate within the common larger environment.“ Singer, “The Global System and its Subsystems,” in Rosenau (ed.), Politics in a Shrinking World (in press, 1968). “An international system is a pattern of relations between the basic units of world politics, which is characterized by the scope of the objectives pursued by those units and of the tasks performed among them, as well as by the means used in order to achieve those goals and perform those tasks. This pattern is largely determined by the structure of the world, the nature of the forces which operate across or within the major units, and the capabilities, pattern of power, and political culture of those units. “ Hoffmann, , “International Systems and International Law,” 14 World Politics 205, at 207 (1961)CrossRef Google Scholar.

4 Kaplan, System and Process in International Politics 21 ff. (1964), suggests six analytical and system-oriented models. See discussion and criticism in Haas, Beyond the Nation-State 57-59 (1964). For an explanation of these models, see Kaplan, , “Problems of Theory Building and Theory Confirmation in International Politics,“ 14 World Politics 6 (1961)CrossRef Google Scholar. Hoffmann's historical analysis suggests three types of international systems reflecting (1) a “mechanical” balance of power (1648-1789), (2) an “ideologically contaminated” more inscitutionalized balance of power (such as followed the French Revolution, 1815-1914), and (3) a transitional, revolutionary system “ in which actor objectives, means and tasks bear little similarity to anything experienced before 1919.” Hoffmann, , “International Systems and International Law,” 14 World Politics 205, at 215–223 (1961)Google Scholar, and Haas, op. cit. at 61.

5 Kissinger, The Troubled Partnership—A Re-appraisal of the Atlantic Alliance 16 (Anchor Book Ed., 1966).

6 Etzioni, Political Unification—A Comparative Study of Leaders and Forces at 4-5,16 (1965). This definition has been selected arbitrarily from a variety of others as perhaps best suited for the purpose of this article. Haas writes: “[P]olitical community exists when there is likelihood of internal peaceful change in a setting of contending groups with mutually antagonistic claims. The process of attaining this condition among nation-states we call integration, the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations, and political activities toward a new and larger center whose inscitutions possess or demand jurisdiction over the preexisting national states.” Haas, , “International Integration—The European and the Universal Process,” 15 Int. Organization 366–367 (1961)CrossRef Google Scholar. Haas views the modalities of conflict resolution as a particularly interesting indicator of progress toward integration. Ibid. at 368. See also his The Uniting of Europe at 16 (1958) and most recently his Beyond the Nation-State (1964), particularly at 26-30, 76-85. Deutsch and his fellow authors of Political Community and the North Atlantic Area (1957) speak (at p. 5) of a “security community.” Within a given territory people will have attained a “sense of community and inscitutions and practices strong enough and widespread enough to assure for a ‘long’ time, dependable expectations of ‘peaceful change’ among its population.” Deutsch is a leading exponent of the “transactional approach” to integration; Jacob and Teune (in Deutsch) list ten factors that may exert integrative influence. Deutsch et al., The Integration of Political Communities 4, 11-45 (1964). For a broader definition see Spiro, , “Comparative Politics: A Comprehensive Approach,” 56 American Political Science Review 577, at 589 (1962)Google Scholar.

7 Etzioni, op. cit. at 7.

8 Haas, in his theory of sociological functionalism relies heavily on unintended integrative consequences of actions taken by the actors of the system for purposes other than increased integration. Haas, Beyond the Nation-State at 83 (1964).

9 Deutsch et al., Political Community and the North Atlantic Area at 44-46 (1957). See also Haas, , “International Integration—The European and the Universal Process,“ 15 Int. Organization 366 at 376 (1961)CrossRef Google Scholar.

10 What happens when a factor, e.g., collective defense, ceases to have functional significance for the integration, that is, for the transformation of the system? May another factor take its place? Haas, Beyond the Nation-State at 84 (1964).For a more recent study of the integration process see Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (1965); Majak, , “Political Integration Revisited: a Review of Three Contributions to Theory-Building,” 11 Journal of Conflict Resolution 117 (1967).CrossRef Google Scholar

11 As early as March, 1959, the French fleet in the Mediterranean ceased to be “ earmarked for assignments“; shortly thereafter it was the turn of the Atlantic fleet with the effect that by the end of 1965 only five French submarines remained assigned to NATO commands. Fox and Fox, NATO and the Range of American Choice 93, 140 (1967); Charpentier, “ Le retrait français de l'O.T.A.N.,” 1966 Annuaire Français de droit international 409, at 410. France also refused to integrate its air forces within the NATO air defense system. Fontaine, L'Alliance Atlantique à I'heure du dégel 118-122 (1959); Fontaine et Planchais, “ La France dans l'Alliance Atlantique,“ Tendances (Dec. 1959) 402 at 419-422.

12 See note 77 below and corresponding text

13 Premier Pompidou before the National Assembly, April 20, 1966, La politique étrangére de la France, Testes et Documents, 1966, at 76 (La documentation française, 1967). Fox, note 11 above, at 89-90.

14 This ‘ ‘ Special Committee'’ was composed of 10 Defense Ministers of the 15 NATO nations. The non-participating countries were France, Iceland, Luxembourg, Norway, and Portugal. Hearings on the Atlantic Alliance before the Subcommittee on National Security and International Operations of the Sen. Committee on Government Operations, 89th Cong., 2nd Sess., pp. 157, 161, 197-198 (1966). See also note 92 below.

15 Interview with M. Maurice Couve de Murville, French Minister of Foreign Affairs, regarding the NATO question, broadcast over the Trench television network on March 17, 1966, in La politique étrangére, note 13 above, 47 at 48; translation in Ambassade de France, Service de Presse et d'Information, Speeches & Press Conferences No. 241, March 17, 1966.

16 When Secretary of State Dulles visited Paris on July 5, 1958, he was told by General de Gaulle that France intended to become a nuclear Power; that any nuclear weapons located on French territory would have to be under exclusive French control and could be used in accordance with NATO plans, provided France had the same plans. The General added that the political functioning of NATO would be facilitated by close co-operation at the summit between France, the United Kingdom, and the United States. U. S. State Dept. Summary of Events, prepared for the Sub- Committee on National Security and International Operations of the U. S. Senate, chaired by Senator Henry M. Jackson, 14 NATO Letter 28 (Oct., 1966).

17 The official texts of General de Gaulle's letters and aide-mémoires have not been released as yet. However, the letter to President Eisenhower is summarized in the U. S. State Dept. Summary, referred to in the preceding note. Pleven, , “France in the Atlantic Community,” 38 Foreign Affairs 19, at 22-23 (1959)CrossRef Google Scholar; Fontaine, note 11 above, at 90-108.

18 U. S. State Dept. Summary, 14 NATO Letter 28 (Oct., 1966).

19 Ibid, at 29. The full text of President Eisenhower's letter was not made public until 1966.

20 In February, 1959, two series of discussions on the Far Eastern situation were held at the ambassadorial level but with the addition of general staff officers. Similar parleys on African problems took place in April, 1959, but when the United States and the United Kingdom indicated their willingness to continue these meetings with discussions among military experts, the French Government did not respond and this brought to an end this line of consultations.

21 General de Gaulle simply restated his broad thoughts that “among the world powers of the West, there must be something organized” to assure agreed strategy outside Europe. Major Addresses, Statements and Press Conferences of General Charles de Gaulle, May 19, 1958-Jan. 31, 1964, Ambassade de France, Service de Presse et d ‘Information 84, at 96 (Jan. 31, 1964).

22 TJ. S. State Dept. Summary of Events, note 18 above, at 28-29.

23 Assistant Secretary of State Leddy in Hearings on The Crisis in NATO before the Subcommittee on Europe of the House Committee on Foreign Affairs, 89th Cong., 2nd Sess., p. 19 (March, April, May, June, 1966); Under Secretary Ball in Hearings on U. 8. Policy Toward Europe before the Sen. Committee on Foreign Relations, 89th Cong., 2nd Sess., pp. 316-319 (1966); Secretary Rusk's interview with Paris-Match on April 12, 1966, 54 Dept. of State Bulletin 695 (May 2, 1966), reprinted in France and NATO, Brief Prepared by Mr. L. Radoux, Rapporteur, Western European Union Assembly, Committee on Defence Questions and Armaments 59 (Paris, June, 1967). According to Radoux, the passage “had nothing to do with NATO,” was not published in the Paris-Match of April 16 but added in the later State Dept. version; Under Secretary Ball's interview with Le Monde on March 30, 1966, 54 Dept. of State Bulletin 613 (April 18, 1966). The U. S. view is confirmed by former NATO Secretary General Stikker in his Men of Responsibility, A Memoir 360 (1965).

24 Interview of M. Couve de Murville, March 17, 1966, La politique étrangére, note 13 above, at 51; extracts in 14 NATO Letter 26 (May, 1966). According to Pleven, note 17 above, at 22, the French proposal did not aim at a “directorate of three in NATO“; according to Fontaine and Planchais, note 11 above, at 422-423, the discussions were expected to lead to a solution of an “inscitutional type.“

25 U. S. State Dept. Summary of Events, 14 NATO Letter 29 (Oct., 1966). There is a question whether in view of the radical differences of views on non-European problems such as Algeria, such “consultations” would have had much success.

26 M. Couve de Murville, in La politique étrangére, note 13 above, at 48. French aide-mémoire of March 10, 1966, 54 Dept. of State Bulletin 617 (April 18, 1966).

27 French aide-mémoire of March 29, 1966, 54 Dept. of State Bulletin 702 (May 2, 1966); 14 NATO Letter 24 (May, 1966).

28 La politique étrangére, note 13 above, at 40-41; 14 NATO Letter 26 (April, 1966). On the prerequisites for the termination of the North Atlantic Treaty, see note 180 below.

29 The letters were addressed to President Johnson on March 7, 1966, and to Chancellor Erhard, President Saragat, and Prime Minister Wilson on March 9, 1966. For the text of the letter to President Johnson and his preliminary reply of the same date, see La politique étrangére, note 13 above, at 44-45; 14 NATO Letter 22 (May, 1966). It is noteworthy that General de Gaulle's letters to the four statesmen are not identical since their content was adapted to meet the special concern of each addressee. For President Johnson's second reply of March 23, 1966, see La politique étrangére, note 13 above, at 52; 14 NATO Letter 22 (May, 1966).

30 It is worth noting that these communications were sent not to the permanent representatives accredited to NATO but to the Ambassadors to France. Additional passages were included in the memoranda to Canada, the Federal Republic of Germany, and the United States. For the text see La politique étrangére, note 13 above, at 45-47; 54 Dept. of State Bulletin 617 (April 18, 1966); 14 NATO Letter 23 (May, 1966).

31 The same sentence appears also in the note sent to Canada, which had air bases and other military installations in Eastern France

32 Agreement of Feb. 27, 1951, Regarding the Establishment of Air Depot at Déols- La Martinerie, T.I.A.S., No. 6130; Agreement of Oct. 4, 1952, Regarding Certain Air Bases and Facilities in Metropolitan France Placed at the Disposition of the United States Air Force, T.I.A.S., No. 6131; Agreement of Dec. 8, 1958, Concerning the System of Communications and Depots of the TJ. S. Army in Metropolitan France, T.T.A.S., No. 6132; Agreement of June 30, 1953, Regarding the Construction, Operation and Maintenance of a Pipeline, T.I.A.S., No. 6133; Exchange of Notes of June 17, 1953, Regarding Headquarters of the Deputy Commander, Allied Forces in Europe, T.I.A.S., No. 6134. See also 5 Int. Legal Materials 690-717 (July, 1966). The Franco-Canadian bilateral agreements, described in the French memorandum to Canada of March 10, 1966, as dealing with “ the construction and utilization of airports on French territory destined for the Royal Canadian Airforce,” have not been published thus far. Canada withdrew its forces from France (as did the IT. S.) before the deadline of April 1, 1967, reportedly without negotiating any formal instrument governing the withdrawal. An agreement was, however, concluded between Canada and France on the arrangements for the take-over of the air base at Lahr, Fed. Rep. of Germany, but this agreement also has not been published. For the Franco-German bilateral correspondence relating to the continued presence of the French troops in Germany see La politique étrangére, note 13 above, at 58, 88, 93, 110, 112, 240-242; 5 Int. Legal Materials 680-684 (July, 1966), and 6 ibid. 41-44 (Jan., 1967). See also text below at note 233 ff.

33 54 Dept. of State Bulletin 536 (April 4, 1966). On March 25, 1966, the United States sent to France a brief memorandum in reply to the French memorandum of March 10, 1966, requesting details and clarifications of the contemplated measures. Ibid. 617 (April 18, 1966).

34 First, the assignment to the Allied command of French troops stationed in Germany was to terminate and the withdrawal of French personnel assigned to the integrated Allied commands was to be effective on July 1, 1966, except that the French participants in the courses at the NATO Defense College were to be withdrawn at the end of the study session, that is, on July 23, 1966. Second, the denunciation

35 54 Dept. of State Bulletin 699 (May 2, 1966); 14 NATO Letter 25 (May, 1966).

36 This agreement of Sept. 6, 1960, has never been published, but the U. S. note indicates that the agreement “would, by its own terms, cease to have application.“

37 For the text of the third French aide-mémoire, see La politique étrangére, note 13 above, at 80; 5 Int. Legal Materials 680 (July, 1966).

38 Journal Offlciel, Débats de 1'Assemblée Nationale, April 15, 1966, p. 691; La politique étrangére, note 13 above, at 70.

39 General de Gaulle said in his Press Conference on Feb. 21, 1966: “[C]onflicts in which America is engaged in other parts of the world—the day before yesterday in Korea, yesterday in Cuba, today in “Vietnam—by virtue of the famous escalation principle, risk assuming dimensions which could lead to a general conflagration. In that event, Europe, whose strategy within NATO is that of America would be automatically drawn into the struggle she had not sought. And this would be true for France, if the inclusion in the military system tinder American command of her territory, her communications, certain of her forces, many of her bases, and some of her ports, were to be further prolonged.” La politique éitrangére, note 13 above, 38 at 41. See also Statement by Premier Pompidou, April 13, 1966, La politique étrangére, note 13 above, at 63, 65, and address by M. Couve de Murville of April 14, 1966, ibid, at 66, 68-69. The Atlantic Alliance, Basic Issues, A Study Submitted by the Subcommittee on National Security and International Operations (Pursuant to S. Res. 181, 89th Cong.) to the Sen. Committee on Government Operations, 89th Cong., 2nd Sess., p. 8 (1966). In World “War I I Free French units were placed under Allied Commands and in at least one instance General de Gaulle directed a French officer to disregard an order of his Allied superior. General de Gaulle's experience in World War II may have been a factor in turning against a commitment to place French troops under “foreign” command even in wartime.

40 T.I.A.S., No. 1964, 34 U.N. Treaty Series 243; 43 A.J.I.L. Supp. 159 (1949).

41 Preamble, Arts. 1, 5, 7.

42 The latter part of this provision was obviously inspired by Art. 28(1) of the U.N. Charter regarding the Security Council.

43 Art. 3 reads: “ In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.” Art. 5 which contains the basic obligation to take action in the event of an armed attack on one of the Parties, is set forth in the text at note 82 below.

44 Former Secretary of State Dean Acheson recalled in his testimony on April 27, 1966, that since the beginning of the Atlantic, Alliance, and more especially during the London meeting in May, 1950, France took the lead in proposing a tighter integration in every field, and this “went a good deal further than the NATO setup later went.” Hearings on the Atlantic Alliance before the Subcommittee on National Security and International Operations of the Sen. Committee on Government Operations, 89th Cong., 2d Sess., Pt. 1, p. 10 (April 27, 1966). On the evolution in NATO generally, see more recently Kertesz, The Quest for Peace through Diplomacy 132-135 (1967); Fox & Fox, note 11 above, at 13-25.

45 Hearings on the Atlantic Alliance, op. cit. The American political commitment apparently did not suffice to restore the necessary confidence in Europe's security and induce businessmen to repatriate their funds from abroad to Europe.

46 The member states recalled the disastrous experience in World “War I, when it had taken four years to create a combined command under Marshall Foch, as well as the “tragically inadequate” liaison between the general staffs in 1939-1940. Under Secretary Ball's interview with Le Monde on March 30, 1966, note 23 above, at 614.

47 The meeting of the Council was held in New York on Sept. 15, 1950. NATO— Facts About the North Atlantic Treaty Organization 22 (NATO Information Service, Paris, 1965). “Forward strategy” required resisting any aggression as far to the East as possible, in order to ensure the defense of all the European countries of the Alliance. There were at the time some 14 Allied divisions on the Continent as against some 210 Soviet divisions.

48 Security Council Res. 8/1588, of July 7, 1950, Resolutions and Decisions of the Security Council, 1950, U.N. Security Council, 5th year, Official Records, No. 84 (1950), p. 5.

49 Facts About NATO, note 47 above, at 23.

50 Ibid. at 27, 189. NATO strategy for the defense of North America is prepared by the Canada-United States Regional Planning Group. Kertesz, The Quest for Peace through Diplomacy 133 (1967).

51 Ibid. at 26. See also Jordan, The NATO International Staff/Secretariat 1952- 1957 (London, 1967).

52 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, signed in London on June 19, 1951, T.I.A.S., No. 2846, 199 U.N. Treaty Series 67.

53 Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty, signed in Paris on Aug. 28, 1952, T.I.A.S., No. 2978, 200 U.N. Treaty Series 340. France denounced this Protocol. See note 34 above.

54 Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, signed at Ottawa on Sept. 20, 1951, T.I.A.S., No. 2992, 200 U.N. Treaty Series 3. For a legislative history of the three “ s t a t u s“ agreements, see International Law Studies 1961, NATO Agreements on Status: Travaux Préparatoires (Snee ed., Naval War College, 1966).

55 Par. 4, Resolution to Implement Sec. IV of the Final Act of the London Conference. Pacts about NATO, note 47 above, at 266-267. It should be noted that “ t he area of the Allied Command Europe” did not include the British Isles, but the resolution did include not only the forces of the Continental member states but also the British, Canadian and U. S. forces on the Continent and French troops in Germany. Par. 7(c) provided that forces under SACETJB and within the area of Allied Command Europe “shall not be re-deployed or used operationally within that area without the consent” of SACEUB, subject to political guidance by the Council. On the European Defense Community, see Aron and Lerner (eds.), Prance Defeats EDO (1957).

56 Pars. 8(a) and (c), ibid, at 267.

57 Ibid, at 30.

58 Declaration and Communique issued at the Ministerial Meeting of the North Atlantic Council, Paris Dec. 16-19, 1957, I I . Communique, par. 22. Ibid. 291, at 294. Further progress in air defense was made in 1960 when an agreement was reached on the integration of air defense for the Allied Command Europe and the establishment of a common reporting and control system. Ibid, at 102.

59 Osgood, The Case for the MLF: A Critical Evaluation (The Washington Center for Foreign Policy Research, 1964); Pox & Pox, note 11 above, at 7, 96, 99, 109, 130-134, 138-142 and passim.

60 Kertesz, “NATO's Disarray and Europe's Future,” 28 Review of Polities 3, 4-6, particularly 5, note 2 (1966); and Kertesz, The Quest for Peace Through Diplomacy 133 (1967).

61 At present there are under SACEUR three major subordinate Commands (Allied Forces Northern Region, Allied Forces Central Region, Allied Forces Southern Region), and under them (although not uniformly) the Army Groups and the Allied Tactical Air Forces. “Integrated air defense” does not connote a mixed-manned force; each of its operational components is made up of organizations which are all of one nationality, and only the Command is “integrated,” since it is exercised through headquarters in the alliance chain of command which are internationally staffed. Kertesz, The Quest for Peace Through Diplomacy 132 (1967). Facts About NATO, note 47 above, at 57-63, and supplementary information.

62 The military personnel (selected on the basis of a nationality key reflecting the contributions of the individual members) remains in the respective national armed forces and retains its pay from that source. The international secretariat is also composed in large measure of national officials on leave from their jobs but these “international civil servants” receive their salaries from NATO funds, with the exception of TJ. 8. and Canadian officials, who are paid directly by their respective governments. See generally Jaenicke, “ Nordantlantikpakt-Organisation,” in 2 Strupp- Schlochauer, Wörterbuch des Völkerrechts 620, at 623-624 (1961).

63 Hearings on The Crisis in NATO, note 23 above, at 43; Secretary Rusk's interview with Paris-Match, April 12, 1966, note 23 above, 54 Dept. of State Bulletin at 694, 698 (1966).

64 Before the withdrawal of France the task was performed by the Standing Group (France, U.K., TJ. S.) in Washington, D. C. See text below at note 203.

65 Facts About NATO, note 47 above, at 94-95, 105-110. See also par. 13, Resolution of the North Atlantic Council to implement Sec. IV of the Final Act of the London Conference. Ibid, at 266-268 (1965).

66 These installations are financed collectively by NATO member countries under the terms of various cost-sharing formulas developed by the Council and “agreed by Ibid, at 135-143. They are built and administered by the member states on whose territory they are located. The total expenditure of the common infrastructure ” slices “ authorized by the Council through 1969 has been estimated at $4 billion. See generally Kertesz, The Quest for Peace Through Diplomacy 149 (1967).

67 See explanation in Hearings on The Crisis in NATO, note 23 above, pp. 43-52; Facts About NATO, note 47 above, at 93-94; Lord Ismay, NATO—The First Five Years 1949-1954, pp. 70-78 (1954); Beaufre, L'O.T.A.N. et l'Europe 59-72 (1966).

68 On the Standing Naval Force under S ACL ANT see text below at note 212.

69 The U. S. forces stationed in Germany have been so “assigned.” Only SACETJB has “assigned” forces. SACEUR is responsible, in peacetime, for certain aspects of the training of these forces but they remain under national command in peacetime and under national control both in peace and war for purposes of administration, discipline and logistic support. Facts About NATO, note 47 above, at 93; Hearings on The Crisis in NATO (1966), note 23 above, pp. 43-45.

70 Facts About NATO, note 47 above, at 94 (1965).

71 Three divisions of the U.S. Army and two divisions/wing teams of the U.S. Marine Corps stationed in the United States are “earmarked” in this manner.

72 Facts About NATO, note 47 above, at 92-93. Lord Ismay explains the reason for this arrangement as follows: “The Atlantic Maritime Powers of NATO naturally maintain naval forces and maritime air forces to protect their national interests in those waters in time of peace. To have created a separate NATO naval force for the specific purpose of guarding Atlantic ocean life-lines in time of war would be impossibly expensive. It was therefore decided by the countries with interests in the Atlantic that the naval forces which they maintain there in time of peace for their own national purposes should be dedicated in time of war to the common cause of protecting the life-lines across the Atlantic Ocean.” Ismay, NATO—The First Five Years 1949-1954, at 77 (1954). The original concept of “assigned” forces has been eroded and in practice the distinction between “assigned” and “earmarked” forces has become tenuous.

73 Facts About NATO, note 47 above, at 94. See generally Beaufre, LO.T.A.N. et l'Europe 59 ff. and passim (1966).

74 See Birrenbach, “European Integration and Atlantic Partnership,” in Cerny and Briefs (eds.), NATO in Quest of Cohesion 271, at 273-278 (1965).

75 M. M. Ball, NATO and the European Union Movement 80 (1959); Menzel, “Nationale und internationale Strukturformen der NATO,” 18 Europa Archiv 596-601 (1963); Hearings on The Crisis in NATO, note 23 above, p. 45.

76 Note 55 above.

77 Assistant Secretary of Defense MeNaughton in Hearings on The Crisis in NATO, note 23 above, p. 44. The long-standing practice sanctioned by the Council allows withdrawal, subject to prior notification to SACEUR and the Council if time permits, and upon simultaneous notification in case of emergency; it also allows a member state to modify its commitment on a more routine basis outside the Annual Review. According to Beaufre, only the Federal Republic of Germany has agreed to an automatic assumption of SACEUB command authority in case of a declared emergency. Beaufre, note 67 above, at 68. France reportedly complied with the notification requirement when it removed its troops from Europe to Algiers, and apparently i t was not held as legally bound to re-assign these troops to 8ACEUE upon their repatriation from Algiers in 1962. Bowett, The Law of International Inscitutions 154- 155 (1963). But see Menzel, note 75 above, at 593, 598 (1963); Mahnke, Das Problem der Einheit der Völkerrechtsgemeinschaft und die Organisation der internationalen Sicherheit 144, Schriften zum öffentlichen Recht, Vol. 26 (1965). See also Jaenicke, note 62 above, at 623. Secretary Dulles said at the London Conference on Sept. 29, 1954: “ [U]nder our conscitutional system the President of the United States is Commander in Chief of the Armed Forces … and, as such, has the right to determine their disposition. That is a right which cannot be impaired by action of the Congress…. Therefore it is not conscitutionally possible for the United States by treaty (sic!), by law, or in any other way to make a legally binding, fixed commitment to maintain any predetermined quota of armed forces in any particular part of the world for any particular time.” London and Paris Agreements, Sept.-Oct., 1954 (Dept. of State Pub. 5659) at 21 (Nov., 1954). (This argument, although helpful politically at the time, is not an accurate statement of conscitutional law of the United States.) On the other hand, the United Kingdom undertook a treaty obligation to continue to maintain on the mainland of Europe four divisions and a Tactical Air Force and not to withdraw these forces against the wishes of the majority of the parties to the Western European Union Treaty who should take their decisions in the knowledge of SACEUE's view, subject only to an acute overseas emergency and to a review of the financial conditions by the North Atlantic Council in the event of “too great a strain “ on its external finances, Protocol No. II on Forces of Western European Union, Art. 6. Ibid, at 44.

78 SACEUR possesses ‘ ‘ permanently delegated authority,'’ in case of an imminent massive attack, to provide for immediate air defense measures. Beaufre, note 67above, at 69.

79 Secretary Rusk's interview with Paris-Match, note 23 above, at 698; see also Under Secretary Ball's interview with Le Monde, note 23 above, at 615-616. Cahen-Salvador, “Problémes juridiques de l'OTAN,” 1955 Politique étrangére 689, at 698, finds no “direct limitation of sovereignty“; similarly Delbez, “ La France, l'OTAN ot le droit des gens,” 55 Rev. pol. des idées et des inscitutions 239, at 245-246 (May1966).

80 It is argued on the French side that most of the NATO infrastructure, including its “nerve centers,” were located in France, and would thus be an obvious military target in case of war, regardless of the position of France. Moreover, the very presence of foreign, mainly U.S. forces, imposed practical restrictions on French territorial sovereignty, particularly in view of the “quasi-monopoly” of the American officers in the NATO Commands. Finally, unlike the situation in the United Kingdom, U. S. bases in France were not placed under a French commander and this caused some bitterness; Pleven, note 17 above, at 27-29; Beaufre, L'OTAN et 1'Europe 32 (1966); Lombard in Gazette de Lausanne, Feb. 23, 1966, p. 1.

81 The argument that the treaty undertaking itself might involve France in an unwanted war was of course not directly relevant to the decision to withdraw from the integrated command structure unless such decision was viewed as a prelude to France's withdrawal from the North Atlantic Treaty itself.

82 Emphasis added. Compare this provision with Art. 4 of the Brussels Treaty, now Art. 5 of the Western European Union Treaty. 19 U.N. Treaty Series 51, as amended by a Protocol of Oct. 23, 1954, 211 ibid. 342; 43 A.J.I.L. Supp. 61 (1949), 49 ibid. 130 (1955). For the text of this article see note 222 below.

83 Hearings on the North Atlantic Treaty, Sen. Committee on Foreign Relations, Ft. I, Administration Witnesses, 81st Cong., 1st Sess., pp. 278-279 (May 2-3, 1949).

84 Ibid. at 11, 20-21, 25, 58-59, 78-79, Pt. I I, p. 347 (May, 1949). See also Secretary Acheson's letter transmitting the Treaty, reproduced in Documents Relating to the North Atlantic Treaty 6, at 10-11 (U. S. Govt. Printing Office, Washington, D. C, 1949).

85 Under Secretary of State Lovett in Hearings on North Atlantic Treaty, note 83 above, pp. 276-277. Would the Czechoslovak-type Communist coup suffice to bring about American intervention? Ibid. pp. 25, 310; North Atlantic Treaty, Report of Sen. Committee on Foreign Relations, Exec. Rep. No. 8, 81st Cong., 1st Sess., p. 14 (June 6, 1949).

86 Report of the Foreign Relations Committees of the French National Assembly (at 18 and 43) and of the Council of the Republic (at 40 ff.) and reports of corresponding Belgian and Italian bodies cited in Hagemann, “Der Atlantikpakt und die Satzung der Vereinigten Nationen,” 1950 Archiv des Völkerrechts 385 at 387.

87 Facts About NATO, note 47 above, p. 17. Beckett, The North Atlantic Treaty, the Brussels Treaty and the Charter of the United Nations 29 (1950).

88 Letter of transmittal of Secretary of State Acheson in Documents, note 84 above, at 10, emphasis added. See also Secretary Acheson's testimony in Hearings on the North Atlantic Treaty, note 83 above, pp. 78-79; Rep. of Sen. Committee on Foreign Relations, note 85 above, p. 14.

89 ” It is up to those who control the conscitutional procedure to reach their own judgment,” said Secretary Acheson in Senate Hearings on North Atlantic Treaty 1949, note 83 above, p. 80. See also Art. 59a of the Basic Law of the Federal Republic of Germany according to which the determination of the ‘ ‘ case for defense'' (Verteidigungsfall) is made by the Bundestag, and if it cannot function, by the President with the Chancellor.

90 In view of the geographic position of France, one may ask whether in reality France could remain neutral in a war waged in Western and Central Europe. On the relationship between the national decisions of member states that a “casus belli“ exists under Art. 5, and the unanimity rule in the Council, see text at note 123 below.

91 Interview of M. Couve de Murville over the French TV network, March 17, 1966, La politique étrangére, note 13 above, at 48.

92 See also Interview of French Foreign Minister Couve de Murville on the NATO Question, Station Europe 1, April 6, 1966, in Hearings on TJ. S. Policy Towards Europe, note 23 above, pp. 429-434. The North Atlantic Council's strategic reappraisal in 1956 was already based on the assumption that a large variety of nuclear weapons would gradually be introduced into NATO forces and those of the Soviet bloc. In 1957 the Heads of Government decided that it was necessary to establish stocks of nuclear warheads readily available for the defense of the Alliance and furthermore, in view of Soviet policies in the field of nuclear weapons, that intermediate range ballistic missiles should be put at the disposal of SACEUE. This decision led, first, to the stationing of the Jupiter IEBM missiles in Italy and Turkey, and, second, to progressive introduction into the armaments of member states of tactical nuclear weapons. At the 1962 Athens meeting the Ministers agreed on a special procedure to enable all members of the Alliance to exchange information on the role of the nuclear weapons, and the United States confirmed its determination to continue to make available for the Alliance the necessary nuclear weapons and also renewed its assurance that its strategic forces would continue to provide defense against threats beyond the capacity of NATO-committed forces. The Nassau Agreement of Decern ber 21, 1962, between Great Britain and the U. S. opened the way for an “integration“ of some of their own nuclear weapons in a possible NATO nuclear force. Thus, President Kennedy decided to assign to NATO allocations from U. 8. strategic forces and from tactical nuclear forces maintained in Europe. Likewise, Prime Minister Macmillan agreed to assign to NATO the U. K. Bomber Command and, in the future, nuclear submarines equipped with Polaris missiles to be provided by the U. S. Accordingly, in 1963 the whole of the TJ. K. V-Bomber Command and three U. S. Polaris submarines were assigned to SACEUB, the latter to replace the IBBM missiles which were stationed in Turkey and Italy and had become obsolete. Facts About NATO 104 (1965). Although the Nassau Agreement specified that these nuclear forces were to be “assigned” to NATO, targeted in accordance with NATO plans, and used “for the purposes of international defense of the Western Alliance in all circumstances,” the ultimate responsibility for their use remains national. The TJ. K. has kept a right of veto when “ H e r Majesty's Government may decide that supreme national interests are at stake.” For the text of the Nassau Agreement, see 48 Dept. of State Bulletin 43 (Jan. 14, 1963). For a French critical appraisal of the Nassau Agreement, see Major Addresses, etc., note 21 above, 208, at 216-219. Subsequent efforts by the United States to help provide a mixed-manned Multilateral Nuclear Force (MLF) for NATO (and the British-suggested variant, on “ Atlantic “ Nuclear Force) came to naught due to a lack of enthusiasm on the part of the other members and the vigorous opposition of France. It must be remembered, however, that even the MLF would have been subject to the American veto. In 1965, the Council established the Special (“McNamara“) Committee of Defense Ministers to examine means of increasing the Allied participation in various aspects of nuclear planning and consultation, and this action has led to further developments in the nuclear planning field described at note 209 below. Buchan, The Future of NATO, 565 Int. Conciliation (Nov., 1967) 21-22; Stikker, note 23 above, at 404; Hockaday, , “Nuclear Management in NATO,” 15 NATO Letter 3 (May, 1967)Google Scholar.

93 See preceding footnote and also text below at note 209.

94 Facts About NATO, note 47 above, at 15, 17.

95 House Hearings on The Crisis in NATO, note 23 above, p. 31; Premier Pompidou 's address before the National Assembly on April 20, 1906, in La politique étrangére, note 13 above, p. 72 at 75, and in 14 NATO Letter 27 (July-Aug., 1966), and in Ambassade de France, Service de Presse et d'Information, Release No. 243 A and 254A, April 21, 1966, at 4, 13. The other cornerstone of NATO strategy was the “forward strategy” doctrine discussed above, note 47. For the statement of the “massive retaliation doctrine,” see address by the Secretary of State before the Council on Foreign Relations, New York, Jan. 12, 1954, 30 Dept. of State Bulletin 107- 110 (Jan. 25, 1954).

96 Press Conference of May 15, 1962, in Major Addresses, etc., note 21 above, 172, at 180.

97 Address at the University of Michigan, 47 Dept. of State Bulletin 64-69 (July 9, 1962). Statement of French Premier Pompidou before the National Assembly on April 20, 1966, La politique étrangére, note 13 above, at 75; Hearings on The Crisis in NATO, note 23 above, pp. 31, 51; and The Atlantic Alliance, Basic Issues, note 39 above, p. 11. For the impact on Europe of the McNamara doctrine see Aron, The Great Debate 66-99 (1965).

98 Kissinger, The Troubled Partnership—A Reappraisal of the Atlantic Alliance 21 (Anchor Book ed., 1966).

99 Prime Minister Pompidou before the French National Assembly, April 13, 1966, La politique éitrangére, note 13 above, 63, at 65. Interview of the French Minister of Foreign Affairs with the Canadian Broadcasting Corporation, June 5, 1966, as reproduced in Hearings on The Crisis in NATO, note 23 above, pp. 437-439. Kissinger points out that a nuclear exchange which spares their territory may seem to the Europeans a more attractive strategy, and a threat of an immediate nuclear retaliation a more effective deterrent. Kissinger, note 98 above, at 15.

100 La politique éitrangére, note 13 above, at 75. On the strategic controversy, which was substantially more complex than sketched above, see H. van B. Cleveland, The Atlantic Idea and its European Rivals 38-43 (1966).

101 Par. 12, NATO Press Communique M4(67)3, Dec. 14, 1967. The adoption of the new strategy was foreshadowed when the 14 Defense Ministers, meeting in Paris May 8-9, 1967, drafted a general political guidance paper for the Military Committee, to be used in drafting the new strategy. On Dec. 12, 1967, the Defense Ministers, meeting in Brussels, approved document MC-14-3 containing the new doctrine. “For years most members of the alliance had been disenchanted with the old strategy. Nobody really thought the Soviets could be deterred … simply by the bluff of massive retaliation.” New York Times, May 10, 1967, p. C9, col. 1, and Dec. 13, 1967, p. Ml, col. 7 and C20, col. 1. See also text at note 205 below.

102 Stikker, Men of Responsibility, A Memoir 399 (1965).

103 General de Gaulle's Press Conference, Feb. 21, 1966, La politique étrangére, note 13 above, at 41. Roustide, “La France et 1'OTAN,” Revue de Défense nationale (May 1964) 802 at 805 (citing General de Gaulle's views on reduced credibility of the nuclear deterrent expressed as early as 1949), 808-810.

104 Gallois, “IT. S. Strategy and the Defense of Europe,” 7 Orbis 226, at 233 and passim (Summer, 1963). See criticism by Kissinger, note 98 above, at 13; Aron, The Great Debate 100-104 (1965); and Harold van B. Cleveland, The Atlantic Idea and its European Rivals 12-15 (1966). It is interesting to note that a report recently approved by the Council, with France's concurrence, states: “Collective defense is a stabilizing factor in world politics. It is the necessary condition for effective policies directed toward a greater relaxation of tension… . “ Report on the Future Tasks of the Alliance, Annex to NATO Press Communique M4(67)3 of Dec. 14, 1967, published also as Committee Print, Submitted by the Subcommittee on National Security and International Operations to the Sen. Committee on Government Operations, 90th Cong., 2nd Sess., p. 2 (1968).

105 Ailleret, “Défense ‘dirigée’ ou défense ‘tous azimuts,'” Rev. de Défense nationale, Dec, 1967, p. 1923, and Feb., 1968, p. 351; New York Times, Dec. 1, 1967, p. C17, col. 1. See General de Gaulle's own statement of Jan. 27, 1968, along these lines in Le Monde, Sélec. Hebd. Feb. 1-Feb. 7, 1968, No. 1007, p. 6, and in New York Times, Jan. 30, 1968, p. C12, col. 3. Messmer, “L'atome, cause et moyen d'une politique militaire autonome,” Rev. de Défense nationale, March, 1968, p. 395. Few consider the French “force de dissuasion,” present and future, as an effective deterrent against the Soviet Union. It is argued, however, that regardless of this, the very fact that a potential aggressor against Western Europe must take into account possible nuclear retaliation not only from one but from “ a plurality of decision-making centers” increases his uncertainty and risk, thus adding to the deterrent. Genera] Beaufre, “European Aspects of the NATO Crisis,” 15 NATO Letter 17, at 24 (May, 1967). The deterrent value of any national force in Europe will obviously further decrease if both the U.S.S.R. and the IT. S. proceed with the installation of the fabulously expensive anti-missile defense systems.

106 General de Gaulle's Press Conference, Feb. 21, 1966, La politique éitrangére, note 13 above, at 41.

107 See for example U.N. Charter, Arts. 1(2), 2(1), 2(4), 2(7); O.A.S. Charter, Arts. 1, 5(b), 6, 16; Loewenstein, “Sovereignty and International Cooperation,” 48 A.J.I.L. 222-223 (1954), also in 80 Arehiv des öffentlichen Kechts 1 (1955); Anand, “Sovereign Equality of States in International Law—I & II, “ 8 International Studies 213, 386 (Asia Publishing House, Jan. and April, 1967).

108 The Court of Justice of the European Communities stated in Case 6/64, Costa v. ENEL: “[ B ] y creating a Community of unlimited duration, having its own inscitutions, its own personality and its own capacity in law, apart from having international standing and more particularly, real powers resulting from a limitation of competence or transfer of powers from the States to the Community, the Member States, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves.” 10 Recueil de la Jurisprudence 1141, at 1159 (1964), as translated in 1964 C.M.L. Rep. 425 at 455. Emphasis added.

109 The Italian Court of Cassation stated as early as in 1954: “ The North Atlantic Treaty Organization … is an international organization …, a subject of international law, and it is autonomous with respect to each and all the member countries. Therefore none of the members … may interfere with [its] activities …; the member States cannot exercise judicial functions with regard to any public law activity of the North Atlantic Treaty Organization connected with its organization or with regard to acts performed on the basis of its sovereignty.” Branno v. Ministry of War, Court of Cassation, June 14, 1954, 1955 Int. Law Rep. 756. See also Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, signed at Ottawa, Sept. 20, 1951, Arts. 4-11, T.I.A.S., No. 2992, 200 IT.N. Treaty Series 3, 48 A.J.I.L. Supp. 154 (1954). In the past, a number of writers refused to see in NATO a genuine international organization. See, for instance, Reuter, Organisations européennes 133-134, 137 (Paris, 1965), and especially Pinto, Les organisations européennes 211, 214, 220-222 (2nd ed., Paris, 1965). For this author “ 1'Organisation reste une alliance … Elle ne se détaehe pas des Etats qui l'ont établie … L'Organisation apparait comme line sorte de mandataire, de gérant ou de fermier des Etats alliés. Elle n'est pas une inscitution autonome” (pp. 220-221). Although this thesis may have been valid during the first years of the Atlantic Alliance, the evolution of the Alliance, which had its beginning at the Lisbon meeting of 1952, has clearly led to the establishment of a new international inscitution which is autonomous and has an international legal personality of its own. For a valuable analysis of this evolution see Colliard, Inscitutions internationales 435, 436 (3rd ed., Paris, 1966). The same author describes the North Atlantic Treaty as a “mécanisme d ‘inscitutionnalisation,” and this corresponds to the facts. Colliard, “Quelques réflexions sur la structure et le fonctionnement des organisations internationales,” in Mélanges Henri Eolin 67 at 79 (Paris, 1964). In the same sense, Ganshof van der Meersch, 1 Organisations européennes 179-180 (1966); according to Badura, NATO is “purely cooperative” in the civil and political area but it possesses “integrated organs, inscitutions and command power” in the military-technical area. Badura in Bewahrung und Veränderung demokratischer und rechtsstaatlicher Verfassungsstruktur in den internationalen Gemeinschaften 51-52 (Veroff. der Vereinigung der deutsehen Staatsrechtslehrer, Heft 23, 1966); see also Goodspeed, The Nature and Function of International Organization 624 ff. (2nd ed., 1967); Delbez speaks of a “splendid (sic) political-military organization“ based on a treaty which itself contained elements of an “inscitutional community” (note 79 above, at 240 and 241); Sibert, “L'OTAN: origines, mechanismes, structures,” 1956 Bev. Gen. de Droit Int. Pub. 177, describes NATO as neither a confederation nor an association of states (at 186) but a military alliance “du type le plus pousse1 qu'on ait eonnu jusque'ici.” See also the ambiguous view of Cahen- Salvador, note 79 above, at 690, 693, 704. Sereni recognizes that “doubts have been expressed as to the nature of the autonomous encity” of NATO; yet there is little question that NATO would qualify as an international organization according to Sereni's own criteria. Sereni, Organizazzioni Internazionali 69-70 (1959). On the evolution from “classical alliance” to an organization with integrative aspects, see Mahnke, Das Problem der Einheit der Völkerrechtsgemeinschaft und die Organisation der internationalen Sicherheit, note 77 above, at 138 ff. On NATO as a new form of international co-operation see Menzel, , “Nationale und internationale Strukturformen der NATO,” 1963 Europa Archiv (2) 593 Google Scholar. On the early evolution of NATO generally, see Moore, NATO and the Future of Europe (1958); M. M. Ball, NATO and the European Union Movement (1959). See also note 135 below.

110 Loewenstein, lcc. cit. note 107 above, at 225, 235.

111 Vandevanter, Studies on NATO: An Analysis of Integration, Memo, BM-5006- PE, Band Corp., at 38, 43, (Aug., 1966), citing Marshall, Determinants of NATO Force Posture, P-3280, 21 (Band Corp., Jan., 1966). \

112 The French cite, among others, SACETJE's authority to administer the early warning system, to direct international training programs and exercises, to promulgate combined procedures, and to rule on the military necessity of an installation which a member wishes to build with infrastructure funds, and his authority with respect to the assigned units. Vandevanter, note 111 above, at 40, 64.

113 It is “ the right and duty of [any] powers to have their own national defense.“ Press conference of April 11, 1961, in Major Addresses, Statements and Press Conferences of General Charles de Gaulle, May 19, 1958-Jan. 31, 1964, Ambassade de France, Service de Presse et d'Information 113, at 124. “How indeed in the long run could a Government, a Parliament, a people give their money and their services with all their heart in time of peace, and make their sacrifices in time of war, for a system in which they are not responsible for their own defense?“ Press conference of Sept. 5, 1960, ibid. 84, at 96. A state's loss of responsibility for national defense leads to a loss of its “military personality,” and finally to a loss of its “independence.“

114 Premier Pompidou developed this theme in the French National Assembly when he sought to demonstrate, taking as an example the airlift to Stanleyville of Belgian paratroopers by United States planes based at Evreux, that the NATO structure and agreements impaired France's sovereignty and threatened its very existence. La politique éitrangére, note 13 above, 72 at 74. Excerpts from this speech have been reproduced in English translation in 14 NATO Letter 26-27 (July-Aug., 1966). Referring to the April, 1964, airlift, M. Pompidou said that the French Government “realized on that occasion that the 1951-1952 agreements did not permit it to control allied air activities.” 14 NATO Letter 27 (July-Aug., 1966). He explained that this was the reason why France subsequently negotiated a system of annual authorizations defining the takeoff, volume, nature and destination of American flights. However, M. Pompidou's version of this “Congo affair” has been rejected by authoritative American spokesmen, who asserted that the use of French airfields for this airlift was discussed in advance with the French Foreign Office, which gave an assurance that it would have no objection. See the interviews of Secretary Rusk and Under Secretary Ball, note 23 above.

115 The S. S. “Wimbledon,” [1923] P.C.I.J., Ser. A, No. 1, at 25; McNair, The Law of Treaties 35-36 and 754-766 (1961). See also the French Conscitution of 1946, Preamble “On condition of reciprocity, France accepts the limitations of sovereignty necessary to the organization and defense of peace … “ 2 Peaslee, Conscitutions of Nations 10 (2nd ed., 1956). No comparable provision appears in the 1958 Conscitution, but the 1946 Preamble appears to have been incorporated by reference in the 1958 Preamble. See also the Basic Law of the Federal Eepublic of Germany, Art. 24, and similar conscitutional provisions translated in Stein and Hay, Law and Inscitutions in the Atlantic Area 27-29, 41-44, 52-55, 57-58 (1967).

116 General de Gaulle's Press Conference of Feb. 21, 1966, note 28 above; French aide-mémoire of March 10, 1966, note 30 above; “The Atlantic Alliance is not linked to the maintenance, for an indefinite period, of a series of integrated general staffs set up permanently on war footing…. [It is] both absurd and insulting to say that an alliance without organization automatically loses all its value,” declared the French Minister for Foreign Affairs before the National Assembly, April 14, 1966, La politique étrangére, note 13 above, 66 at 69. The citle “North Atlantic Treaty Organization” was first used officially in the Ottawa Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff of Sept. 20, 1951, T.I.A.S., No. 2992, 200 U.N. Treaty Series 3, 48 A.J.I.L. Supp. 153 (1954).

117 Part IV of the Final Act of the Nine-Power Conference (Sept. 28-Oct. 3, 1954), the parties “agreed to recommend to NATO that its machinery be reinforced“ along the specific lines described above. On the Council resolution of Oct. 22, 1954, implementing this agreement see text at note 55 above and note 127 below. The relevant Paris documents of Oct. 23, 1954, include the Seven-Power protocols transforming the Brussels Treaty into the Western European Union Treaty and relate to the functions of SACEUR with respect to force levels, the Annual Review, NATO participation in arms control, etc. Also relevant is the Four-Power protocol amending three Conventions concerning Germany and the Convention on the Presence of Foreign Forces in the Federal Republic of Germany. London and Paris Agreements, Sept.-Oct. 1954, Dept. of State Pub. 5659 (Nov., 1954); see also note 235 below and 49 A.J.I.L. Supp. 55-146 (1955). See also a second resolution of the Council of Oct. 22, 1954, in Facts About NATO, note 47 above, pp. 268-269.

118 Art. 9. See text at note 42 above.

119 Art. 10. Cf. Art. 3 of Protocol No. I I on Forces of Western European Union, signed in Paris on Oct. 23, 1954, requiring unanimous approval of the parties to the Protocol for an increase of levels of forces to be expressed either in the Council of the Western European Union or “ in the North Atlantic Treaty Organization.” Facts About NATO, note 47 above, at 254. 211 U.N. Treaty Series 342.

120 According to Art. IV, par. 4, Protocol Modifying and Completing the Brussels Treaty of Oct. 23, 1954, the Council of the Western European Union “shall decide by unanimous vote questions for which no other voting procedure has been or may be agreed… . “ Facts About NATO, note 47 above, at 252. 211 U.N. Treaty Series

121 Facts About NATO, note 47 above, at 18; Reuter, Organisations européennes 137 (1965); M. M. Ball, note 75 above, at 52; Merle, Le pouvoir réglementaire des inscitutions internationales, 1958 Annuaire Français de Droit International 341, at 351; Fox and Fox, note 11 above, at 26; Jaenicke, note 62 above, at 622; Ganshof van der Meersch, note 109 above, at 172; Badura, note 109 above, at 51; Goodspeed, note 109 above, at 625.

122 Secretary General Manlio Brosio in a speech to the NATO Parliamentarians on Nov. 16, 1964, referring to the unanimity required for a structural modification of NATO, as quoted in Vandevanter, note 111 above, at 16.

123 stikker, Men of Responsibility, A Memoir 291-293 (1965), and Jackson, “The Decisive Area,” 4 The Atlantic Community 25, at 30 (Spring, 1966).

124 Mr. Stikker himself mentions specifically that decisions on the sharing of common expenditure and on appointments of the Secretary General or the supreme commanders require unanimous consent. Op. cit. 294. In the United Nations, on the other hand, the decision to take action against an aggressor may be made by 9 of the 15 members of the Security Council (including the affirmative votes or abstentions of the five permanent members); or action may be recommended by a two-thirds majority of the General Assembly under the “Uniting for Peace” Resolution. In the absence of a “special agreement,” however, no member state can be forced to employ its armed forces. Art. 51 recognizes the right of collective self-defense against armed attack, subject to report to, and subsequent action by, the Security Council.

125 As his evidence of practice disregarding unanimity, Mr. Stikker points to the number of encities known as NATO Production and Logistics Organizations (NPLO), subordinate agencies of NATO, which sometimes contain only a few members. But there is no evidence that the original approval in the Council was not unanimous, Fox and Fox, note 11 above, pp. 255-256; Stanley, NATO in Transition 379 (1965); and, what is perhaps significant, within each NPLO the Board, composed of a representative from each participating member, decides all matters having financial implications and all matters of general policy by a unanimous vote. The Regulations on NPLO's (Doc. C-M(62) 18, NATO, unclassified, April 28, 1962) govern such organizations as the Central Region Pipeline System, Maintenance and Supply Services System, the HAWK Production Organization, NADGE Organization, etc. Vandevanter, note 111 above, pp. 13-17, 49.

126 E.g., the approval of the administrative budget and appointment of the Secretary General. See also Council Bes. of Oct. 22 to Implement Sec. IV of the Final Act of the London Conference (note 55 above, at 268): The Council “ [d]irects the NATO Military Committee to initiate the necessary changes in the directives … “ (par. 16), and “directs the NATO military authorities to arrange for the designation” of a liaison officer (par. 14). It may also be argued that this category includes the periodic decisions by the Infrastructure Payments and Progress Committee endorsing the amount of contributions to infrastructure projects due to the host countries by the other member countries concerned. Facts About NATO, note 47 above, pp. 68-69, 138.

127 The Council resolution of Oct. 22, 1954 (note 55 above) which, as was explained above, has been modified by subsequent acts and practice as regards the duty to place forces under SACEUB, uses the term “decides” in par. 4 on placing forces under SACETJB, and it uses the same term in par. 8 fixing the level of integration. It speaks of “NATO directives” in pars. 5 and 16. It speaks of Council “ a c t i o n“ in par. 5. In par. 3 of the same resolution the Council [A]gress with the terms of the Agreement on Forces” and refers to “ t h e NATO Annual Review recommendations with the national authorities,” that forces shall not be re-deployed “without the consent“ of SACEUE. It “agrees” that SACBUB's powers for the logistic support “shall be extended” (par. 9) and “considers” that these powers should include “authority” to “establish, in consultation with the national authorities,” logistic requirements, to determine, to establish priorities, to direct the utilization, to coordinate, to supervise (par. 10). The Council “agrees” that SACEUB shall be granted “increased authority to call for reports” and “make field inspections” (par. 11) j it “invites nations to submit reports” (par. 12), “confirms” that SACEUB powers extend to “direct control” over the higher training (par. 13). Italics added. In another resolution adopted on Oct. 22, 1954, the Council recognized in the Preamble that “all the arrangements arising out of the London Conference form part of one general settlement which … has been submitted to the Council for information or decision.” Pacts About NATO, note 47 above, at 266-269. See also note 196 below. M. M. Ball states that the “Council decisions are … binding.” Ball, note 75 above, at 54.

128 Charpentier, “Le retrait français de l'O.T.A.N.,” 1966 Annuaire Français de Droit International 409 at 422, relying in part on Reuter, note 121 above, at 137. Charpentier believes that the Council decision of Dec. 19, 1950 (providing for an integrated force under the supreme command of an American officer, Facts About NATO, note 47 above, p. 23), was a decision of “internal administration” of the type of decisions which “even in the United Nations” has obligatory effect. In the U.N. General Assembly, a decision to establish a peacekeeping operation such as the U.N.E.F. has been viewed as a decision to establish a subsidiary organ under Art. 22 of the U.N. Charter, and in this sense a “binding” “internal” decision for purposes of allocating the expenses, rather than as a recommendation. The I.C.J, has recognized the authority of the U.N. General Assembly (which in principle can only “recommend“) to bring into existence any subsidiary organ necessary for the accomplishment of its goals and objectives and the consequent obligation of member states to contribute to the financing of the operations of these new bodies. See Certain Expenses of the United Nations, [1962] I.C.J. Rep. 151, at 165, 168, 177. But, in this case, Prance refused to accept the ruling of the Court and maintained— together with the Soviet Union—that the U.N. General Assembly lacked jurisdiction to do what it did. However, this does not impair the general principle which can be drawn from the I.C.J, advisory opinion, namely, that the competent organs of an international inscitution, within the limits of their jurisdiction, are empowered to create the subsidiary organs necessary to achieve their missions. Reuter, op. cit. at 137, believes that NATO Council “decisions are taken on the basis of unanimity; but beyond internal administration they conscitute no more than directives of political nature (directives d'ordre politique) that correspond to the normal competence of members of the Council.” While this view may have been justified in 1949, it is hardly compatible with the reality as it has evolved since that date.

129 E.g., decision by the Council under Art. 9 of the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty, note 53 above (“Except insofar as the … Council decides otherwise… . “ ) . Also included should be the resolution of Dec. 16, 1956, in which the Council decided that all disputes among the member states not settled directly by the parties must in the first instance be submitted to good offices procedures within the NATO framework, and in which it granted the Secretary General certain powers in this connection. The NATO Handbook 174 (1959).

130 See, e.g., agreements between Member States and the Organization contemplated in Arts. 12 and 25 of the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, T.I.A.S., No. 2992, 200 U.N. Treaty Series 3; and by bilateral agreements concluded between the IT. S. and Canada and “ t h e Council acting on behalf of the Organization” under Art. 19 of the same Agreement on Status.

131 See notes 52, 53, and 54 above.

132 Merle, “ L e pouvoir réglementaire des inscitutions internationales,” 1958 Annuaire François de Droit International 341, 346-347 and passim.

133 T.I.A.S., No. 4891, and Convention on European Economic Co-operation, with related documents, Paris, April 16, 1948, Dept. of State Pub. 3145, Econ. Coop. Ser. 7 (May, 1948), respectively; 43 A.J.I.L. Supp. 94 (1949). Like the North Atlantic Treaty, the O.E.C.D. Convention has established a permanent Council but, in addition, it has included a qualified unanimity formula and specified that “ in order to achieve its aims the Organization may (a) take decisions which, except as otherwise provided, shall be binding on all the Members, (b) make recommendations to Members, and (c) enter into agreements with Members, non member States and international organizations.“ Art. 5, T.I.A.S., No. 4891. Unlike the North Atlantic Treaty, however, O.E.C.D. Art. 6 stipulates that “[u]nless the Organization otherwise agrees unanimously for special cases, decisions shall be taken and recommendations shall be made by mutual agreement of all the Members“; if a member abstains from voting, the abstention “shall not invalidate the decision or recommendation, which shall be applicable to other Members but not to the abstaining Member.” Freymond, “Les décisions de l'O.E.C.E.,” 11 Schweizerisches Jahrbuch für internationales Recht 65-90 (1954); Hahn, , “Die Organisation für wirtschaftliche Zusammenarbeit und Entwicklung, “ 22 Zeitschr. für ausl. öff. Eecht und Völkerrecht 49 (1962)Google Scholar; Merle, note 132 above, at 341, 347, 348. See generally I Jurisclasseur de Droit International, Fase. 150, pars. 18-22, especially par. 21. Again, classic international agreements have been employed by both NATO and O.E.E.C.-O.E.C.D. members on subjects where the conscitutional procedure of ratification was viewed as necessary. See for instance the European Payments Union (E.P.U.) and the European Monetary Agreement (E.M.A.). Freymond, loc. cit. at 76, and Merle, loc. cit. at 347. It is interesting to note that, although the Treaty Establishing the European Economic Community envisages international agreements among member states subject to approval through national conscitutional procedures, the Council of Ministers has developed a new type of act, decision “au sein du Conseil” (“within the forum of the Council“), a hybrid between a Community act and an international agreement. Pescatore, , “Remarques sur la nature juridique des representants des états membres réunis au sein du Conseil,” 14 Soc. Econ. Wetgeving 579 (Oct.-Nov., 1966)Google Scholar.

134 I.L.C. Draft Articles on the Law of Treaties, Art. 27, TJ.N. Reports of the I.L.C., U.N. General Assembly, 21st Sess., Official Records, Supp. No. 9 (1966) (A/6309/Bev. 1), and the authorities cited therein, reprinted in part in 61 A.J.I.L. 248, at 348 (1967). See also Art. 38. Professor Engel assembled the case law of the P.C.I.J. and I.C.J, on this issue in his article, “ ‘Living’ International Conscitutions and the World Court (The Subsequent Practice of International Organs under their Conscituent Instruments),” 16 Int. and Comp. Law Q. 865 (1967). See particularly Certain Expenses of the United Nations, [1962] I.C.J. Rep. 160-162, 165. But with respect to practice by an organ of the TJ.N., see separate opinion of Sir Percy Spender who found it difficult to equate “ a practice pursued by an organ of the U.N… . with the subsequent conduct of parties to a bilateral agreement…. “ Ibid, at 189- 190. The I.L.C. draft articles on treaty interpretation (particularly draft Art. 27) focusing on “ordinary meaning” have been criticized with justification as arbitrarily formalistic and retrogressive. McDougal, , “The International Law Commission's Draft Articles upon Interpretation: Textuality Redivivus ,” 61 A.J.I.L. 992 (1967)Google Scholar. See also McDougal, Lasswell and Miller, The Interpretation of Agreements and World Public Order xvii, 132-144 and passim (1967).

135 “Rapport fait à I'Assemblee Nationale au nom de la Commission des affaires étrangdrés” concerning the North Atlantic Treaty stated that “ the obligation of mutual assistance must be organized.” The same report added that the defense organization meant the establishment of the pact organs “ t h a t is to say notably the Defence Committee and the determination of a common strategy.” See this report in René Mayer, Le Pacte de l'Atlantique (Paris, 1949), more particularly at 68, 74. As a matter of fact, within the Council, the European countries very strongly urged an early establishment of these organs in order to provide effectively for the common defense of the North Atlantic Area. “The North Atlantic Treaty and the Organization established under it are both alike essential to the security of our countries,“ stated France's 14 NATO partners in a common declaration of March 18, 1966, note 33 above. However, the authors who deny to NATO the character of a genuine international organization would probably disagree. Eor instance, Professor Pinto asserts that “L'Organisation 6tablie repose sur 1'accord libre et unanime des Etats-membres et non sur des engagements qu'ils ont pris par le traite. Son maintien n'est assurS que par la volonté des Etats-membres.” Les Organisations européennes 211 (1965). But this thesis is open to question. See also note 109 above.

136 See Merle, note 132 above, at 350. See also Charpentier, note 128 above, at 422-423.

137 It is interesting to contemplate the following excerpt from the U. S. Senate Committee Report of 1949 in the light of this development: “ [I]t is preferable that the machinery [for the implementation of the Treaty] be described [in the Treaty] only in broad outline in order that the specific organization may be evolved in the light of need and experience. The committee urges that the organization set up be as simple as possible… . Since the council is given authority only ‘to consider matters concerning the implementation of the treaty,’ its powers are purely advisory with respect to governmental action. Its purpose is to make recommendations to the governments and to assist them in reaching coordinated decisions. It should be emphasized, however, that the responsibility for making decisions lies in the respective governments rather than in the council. Since the council will have only advisory powers, no voting procedure is needed or contemplated. No party will have a veto, nor can it be coerced into taking a decision against its own judgment….“ Rep. of Sen. Committee on Foreign Relations, note 85 above, at 17.

138 Rousseau, ‘’ Chronique des faits internationaux,'’ 37 Rev. Gén. de Droit Int. Pub. (3rd Ser.) 736, at 762 (1966). See also Charpentier, note 128 above, at 418. The phenomenon of withdrawal from an international organization is not a new one. But the withdrawing countries invariably assumed that termination of membership brought to an end all their links and obligations toward these inscitutions. The states, having withdrawn, never claimed that they still felt bound by the conscitutive instrument of the international organizations they had left. On the contrary, some international organizations persisted in considering them as “inactive members” still bound by their previous obligations. World Health Organization, O.R. 28, p. 493, WHA 3.84. See also text at note 177 below. On attempted withdrawal from WHO and UNESCO, see Singh, Termination of Membership of International Organizations 88-89 (1958).

139 Newhouse, Collision in Brussels: The Common Market Crisis of 30 June 1965 (1967).

140 The P.C.I.J. case of the Free City of Danzig and International Labour Organization appears to have some relevance in this context. In order to insure the effectiveness of the I.L.O., the Court refused to consider as eligible for membership a country which might be unable to comply with the obligations of membership or which might not participate in the normal activities of the organization. [1930] P.C.I.J. Advisory Opinion, Ser. B, No. 18, pp. 15-16. In other words, in the absence of any provision to the contrary, the P.C.I.J. refused to envisage the possibility of a partial or limited membership in an international organization. As Judge Max Huber put it in his individual opinion: “ [ I ] t would be absurd to admit a community which would not take part in the work” of an international organization. Ibid, at 32. Likewise, would it be proper for a state to claim to be still a member of an organization, even if it is a loose one, while refusing effective participation in certain common organs and any substantial contribution to the principal activities of this inscitution? That appears to be the position of France within NATO.

141 In his letter of March 7, 1966, to President Johnson, General de Gaulle refers to “dispositions of military nature taken after the conclusion of the Alliance either jointly in the form of multilateral conventions or by special agreement between the French and American governments.” La politique éitrangére, note 13 above, at 44. But see Premier Pompidou, ibid, at 73, and Cahen-Salvador, note 79 above, at 704 who raises the question whether an undertaking assumed in the Council binds the government.

142 Aide-ménoire of March 10, 1966, note 30 above.

143 Charpentier, note 128 above, at 422-423; Merle, note 132 above, at 350. Delbez (note 79 above, at 249-250) believes that France violated its obligation under Art. 3 of the Treaty to maintain and develop “separately and jointly, by means of continuous and effective self-help and mutual aid … individual and collective capacity to resist armed attack,” and it may be held internationally liable on the basis of “responsabilité quasi-délictuelle.''

144 Even if France should be held to have had the right to ‘ ‘ withdraw,'’ it may be possible that the way it has exercised the right conscituted an “dbus de droit.” On this doctrine, see Kiss, L'Abus de droit en droit international (1953).

145 The Permanent Court of International Justice had the opportunity to deal with an argument based on this doctrine twice, in both eases at the instance of France. In its advisory opinion of 1923 on the Nationality Decrees in Tunis and Morocco, the Court carefully refrained from passing upon the argument because it was unnecessary. [1923] P.C.I.J. Ser. B, No. 4, p. 29. For the French argument, see ibid., Ser. C, No. 2, pp. 187-188. In the subsequent Free Zones Case, France argued that the imposition of the Swiss Federal customs in 1849 destroyed the economic unity between Geneva and the Zones, thus putting “ a n end to the conditions in view of which the Zones had been created…. “ [1932] P.C.I. J., Ser. A/B, No. 46, p. 156. In response to this argument the Court held that it was incumbent upon France to “prove it was in consideration of the absence of customs duties at Geneva that the Powers decided, in 1815, in favor of the creation of the Zones” (ibid, at 156); and, since France failed to sustain this burden of proof, it “becomes unnecessary for the Court to consider any of the questions of principle which arose in connection with the theory o£ the lapse of treaties by reasons of change of circumstances, such as the extent to which the theory can be regarded as conscituting a rule of international law, the occasions on which, and the method by which effect can be given to the theory if recognized… . “ Ibid, at 158. For an examination of decisions by national courts referring to the doctrine, see McNair, The Law of Treaties 690-691 (1961); I.L.C. Report, note 134 above, in 61 A.J.I.L. at 429 (1967).

146 Brierly, Law of Nations 335 (6th ed. by Waldock, 1963). See also Bishop, International Law, Cases and Materials 202-204 (2nd ed., 1962). When the United States invoked “material change” in the conditions as the reason for suspending the application of the International Load Line Convention (47 Stat. 2228) (Proclamation in 6 Fed. Beg. 3999 (1941)), no other party appears to have protested, and it has been suggested by Prof. Lissitzyn, in a comment addressed to the authors, that this could be construed as an implied consent by the other parties. On this matter see also Bishop, op. cit. at 198-200. See also the case on the Denunciation of the Treaty of November 2nd, 1865, Between China and Belgium, which the Permanent Court did not have to decide on its merits because the parties reached a settlement by concluding a new treaty. In this case China relied on the Change-of-circumstances doctrine, in justification of denouncing a 65-year-old treaty, and more specifically, it invoked Art. 19 of the Covenant of the League of Nations. But Belgium contended that China was not encitled to act unilaterally but only to pursue the mechanism of Art. 19 or to seek a common agreement. [1929] P.C.I.J., Ser. C, No. 16, I, pp. 22-23, 52.

147 For an extensive period, France bitterly and successfully opposed any use of Art. 19 because it feared that this would create a precedent endangering the Versailles Treaty. 2 Walters, A History of the League of Nations 718 (1952).

148 However, Art. 14 empowers the General Assembly to ‘ 1’ recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations… . “ The italicized portion could no doubt serve as a basis for a recommendation that parties modify or terminate a treaty. Vandenberg, The Private Papers of Senator Vandenberg 183-186 (1952); Goodrich and Hambro, Charter of the United Nations, Commentary and Documents 178-181 (2nd & rev. ed., 1949).

149 Lissitzyn, , “Treaties and Changed Circumstances (Rebus Sic Stantibus),” 61 A..T.I.L. 895, 898–901 (1967)Google Scholar, relying on Bishop, Brierly, Briggs, Schwarzenberger, Restatement Second of Foreign Relations Law of the United States, Harvard Research in International Law, etc.

150 Note 145 above. Brierly, The Law of Nations 336-337, 338 (6th ed. by Waldock, 1963).

151 Bishop, General Course of Public International Law, 1965, 115 Hague Academy, Recueil des Cours 151, at 360 (1965, II).

152 Lissitzyn, note 149 above, at 900-901, paraphrasing Brierly.

153 I.L.C. Report, note 134 above, at 61 A.J.I.L. 428, 431 (1967).

154 Ibid. 433. The full text of draft Art. 59 reads: ” 1 . A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) The existence of those circumstances conscituted an essential basis of the consent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the scope of obligations still to be performed under the treaty. ” 2. A fundamental change of circumstances may not be invoked: (a) As a ground for terminating or withdrawing from a treaty establishing a boundary; (b) If the fundamental change is the result of a breach by the party invoking it either of the treaty or of a different international obligation owed to the other parties to the treaty .“

155 ”… A treaty may remain in force for a long time and its stipulations come to place an undue burden on one of the parties as a result of a fundamental change of circumstances. Then, if the other party were obdurate in opposing any change, the fact that international law recognized no legal means of terminating or modifying the treaty otherwise than through a further agreement between the same parties might impose a serious strain on the relations between the states concerned; and the dissatisfied state might ultimately be driven to take action outside the law…. “ I.L.C. Report, note 134 above, in 61 A.J.I.L. at 431 (1967). “ I n most cases the parties gave no thought to the possibility of change of circumstances and, if they had done so, would probably have provided for it in a different manner.” “ … the Commission was agreed that the theory of an implied term must be rejected and the doctrine formulated as an objective rule of law by which, on grounds of equity and justice, a fundamental change of circumstances may, under certain conditions, be invoked by a party as a ground for terminating the t r e a t y . “ Ibid. 432.

156 Professor Ago in I.L.C, 1963 I.L.C. Yearbook (I) 143, par. 4.

157 Draft Art. 62, loc. cit. at 438-439. The “peaceful means” include “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their [parties’] own choice.” See also I.L.C. draft Art. 63, ibid, at 442.

158 The Commission considered but rejected proposals for compulsory adjudication the ground that Art. 62 as drafted “represented the highest measure of common ground that could be found among governments as well as in the Commission…. “ Ibid, at 440. We agree with this view.

159 Professor Lissitzyn correctly points out that the community policies of protecting shared expectations on the one hand, and peaceful change on the other, are not necessarily compecitive or exclusive: there may be situations in which the continued application of a treaty may be both contrary to the shared expectations of the parties and an intolerable burden on one of them. Furthermore, when the genuine shared expectations of the parties are not ascertainable (in terms of an express intent), the burdensomeness of the performance of an obligation in a new situation may be considered as an important factor in the process of interpretation. Lissitzyn, note 149 above, at 897-898.

160 “Lissitzyn, “Stability and Change: Unilateral Denunciation or Suspension of Treaties by Reason of Changed Circumstances,” A.S.I.L. Proceedings, 61st Annual Meeting, April 27-29, 1967, p. 186 at 193. See statement by Richard D. Kearney, U. S. Member of I.L.C., in 57 Dept. of State Bulletin 719 (Nov. 27, 1967).

161 “Revolutions, Treaties, and State Succession,” 76 Yale Law J. 1669, passim (1967); McDougal in A.S.I.L. Proceedings, 61st Annual Meeting, April 27-29, 1967, at 204-205; McDougal and Associates, Studies in World Public Order 601-605 (1960).

162 We do not consider it necessary for the purpose of this article to deal with the question to what extent the substance of Art. 59, and particularly of Art. 62, could be invoked as existing law (lex lata).

163 French aide-memoire of March 10, 1966, note 30 above. France invoked the doctrine in two instances before the P.C.I.J., see note 145 above. The French Chamber of Deputies expressly referred to the doctrine as justifying the termination of the Franco-American war debt agreements of 1926, and the French Government in effect did not pay the debt, without, however, formally relying on the doctrine. 1932 U. S. Foreign Relations (I) 746 (1948). The French representative in the Sixth Committee of the TLN. General Assembly, M. Monod, commented on an earlier version of the I.L.C. draft: “ I t had disturbed some representatives that the Commission had devoted a separate article … to the effects of a fundamental change of circumstances. The rebus sic stantibus clause had hitherto been chiefly a subject of academic controversy. The fact was, however, that the situations which had given rise to that clause were by no means theoretical but wholly real. By taking up the question, the Commission had lived up to its responsibilities and had set a problem which sooner or later must be solved.” U.N. General Assembly, 18th Sess., Official Records, Sixth Comm., 787th meeting, Oct. 9, 1963, p. 29 (Doc. A/C.6/SR. 787).

164 See Kearney, note 160 above, at 721.

165 Common Declaration, March 18, 1966, 54 Dept. of State Bulletin 536 (April 4, 1966), 14 NATO Letter 24 (May, 1966). For the view that, although the Soviet Union's methods have changed, its objectives remain the same, see The Atlantic Alliance, Basic Issues, note 39 above, pp. 3, 7; and the Christian Science Monitor, May 3, 1967, p. 11, col. 1. See also The Atlantic Alliance, Unfinished Business, A study by the Subcommittee on National Security and International Operations, 90th Cong., 1st Sess., pp. 3-5 (1967). The recent projection of Soviet naval power to the Mediterranean and the Middle East has been cited as a new manifestation of the continuing threat.

166 Assistant Secretary of Defense MeNaughton said: “ I feel … there is a change of quality of the threat. “ Hearings on The Crisis in NATO, note 23 above, p. 51. See also Ambassador Harlan Cleveland, “The Political Phase of NATO,” address delivered at the NATO Defense College in Paris, July 19, 1966, at pp. 3-7 (U. S. Del. to NATO, 1966). The so-called “ H a r m e l “ Report on the Future Tasks of the Alliance, approved by the Council (with the concurrence of France) on Dec. 14, 1967, states that the international situation has changed significantly, “ t h e nature of the confrontation” has changed “ but not the basic problems,” and “ t h e possibility of a crisis cannot be excluded.” Annex to NATO Press Communique M4 (67) 3 of Dec. 14, 1967, published also as Committee Print, submitted by the Subcommittee on National Security and International Operations to the Sen. Committee on Government Operations, 90th Cong., 2nd Sess. (1968).

167 Lissitzyn, loc. cit. note 149 above, at 915; Kearney, note 160 above, at 721. Professor Lissitzyn points out that in most cases “foreseeing” is likely to be imputed rather than shown as a fact, loc cit. We concur in his view that an earlier formulation providing for the exclusion of the changes of circumstances “which the parties have foreseen and for the consequences of which they have made provision in the treaty itself” might be preferable. Ibid, at 916-917. Emphasis added.

168 See note 134 above.

169 See, e.g., the Belgian Government ‘a emphasis on multilateral discussion with a reference to Arts. 3 and 9 of the Treaty and “common decision” in the Council. Belgian note of April 13, 1966, in La politique éitrangére, note 13 above, at 62-63. Also the strong emphasis on Art. 12 (review of the Treaty) in the U. S. note of April 12, 1966, note 35 above.

170 H. van B. Cleveland, note 104 above, at 16-23.

171 I.L.C. Report, note 134 above, at 433-434; Schwelb, Memorandum No. 6 (Prov. Ver.), Fundamental Change of Circumstances, A.S.I.L. Study Group on the Draft Articles of the Law of Treaties 23 (Sept., 1966).

172 Meisel, The Fall of the Republic—Military Revolt in France (1962); Williams and Harrison, De Gaulle's Republic (Oxford, 1960).

173 Schwelb, note 171 above, at 22, 23.

174 The North Atlantic Treaty contains a provision for termination (see note 180 below), and the commitments stemming from the participation in the NATO structure in principle would appear subject to the same provision. Since the Commission text does not limit the doctrine to “ perpetual “ treaties or to treaties containing no provision for termination, France would not be barred from relying on it just because it could lawfully free itself from all its obligations by withdrawing from the Treaty itself in accordance with Art. 13 of the Treaty. Lissitzyn, note 149 above, at 917. Note, however, Art. 53 and the Commission's comment in I.L.C. Rep., note 134 above, at 415-418. See also the provision concerning international organizations immediately below. On the question whether Art. 12 of the Treaty, providing for a possibility of revision after 10 years, could be viewed as barring recourse to the rebus sic stantibus exception, see Sibert, note 109 above, at 179, and Delbez, note 79 above, at 246.

175 Art. 4, I.L.C. Rep., note 134 above, 61 A.J.I.L. at 293 (1967), with an explanatory comment at 294. A number of governments have commented on, and raised questions with respect to, an earlier version of this article. I.L.C. Rep., note 134 above, at 124, 138, 144, 156, 165, 179.

176 Only rules on the effect of changed circumstances or any rules on termination of, or withdrawal from, the treaty organization?

177 Although the Charter is silent on this point, an interpretive declaration was included among the official documents of the San Francisco Conference, recognizing that “exceptional circumstances” may induce a Member to withdraw. Goodrich and Hambro, Charter of the United Nations 143-144 (2nd ed., 1949). But see Dehousse, ” Le droit de retrait aux Nations Unies,” 2 Bev. beige de droit int. 8, at 12 (1966), and Bolin cited there. Badura, note 109 above, at 95, referring to Berber, envisages the possibility of a member state invoking the “clausula” rebus sic stantibus in order to denounce the “ perpetual “ B.E.C. Treaty in the event of a conscitutional change in another member.

178 See note 32 above. The Franco-U. S. agreements contemplated a substantial number of “technical agreements,” all of which presumably terminated simultaneously with the principal agreements, unless the two parties agreed otherwise.

179 Par. 15 of the Agreement of Feb. 27, 1951, Regarding the Establishment of an Air Depot at Déols-La Martinerie, T.I.A.8., No. 6130; Art. X of the Agreement of Oct. 4, 1952, Regarding Certain Air Bases and Facilities in Metropolitan France Placed at the Disposition of the United States Air Force, T.I.A.8., No. 6131; Exchange of Notes of June 17, 1953, Regarding Headquarters of the Deputy Commander, Allied Forces in Europe, T.I.A.S., No. 6134; Art. XI of the Agreement of June 30, 1953, Regarding the Construction, Operation and Maintenance of a Pipeline, T.I.A.S., No. 6133; Art. IX of the Agreement of Dec. 8, 1958, Concerning the System of Communications and Depots of the U. S. Army in Metropolitan France, T.I.A.S., No. 6132.

180 Although the North Atlantic Treaty was signed on April 4, 1949, it came into force, according to Art. 11, on Aug. 24, 1949, when it had received the required number of ratifications. (This fact is at times overlooked; see, e.g., General de Gaulle's Press Conference of Feb. 21, 1966, note 28 above.) Art. 13 of the North Atlantic Treaty provides that “[a]fter the Treaty has been in force for twenty years [that is, on or after Aug. 24, 1969], any Party may cease to be a party one year after its notice of denunciation has been given” to the depositary (United States) government. The better interpretation of this provision appears to be that upon notification on Aug. 24, 1969, France could lawfully cease its membership in NATO on Aug. 24, 1970. This interpretation is supported by Secretary General Manlio Brosio in 15 NATO Letter 7-8 (Dec, 1967).

181 General de Gaulle's Press Conference of Feb. 21, 1966, note 28 above, and the French aide-mémoire of March 10, 1966, note 30 above.

182 Art. IX of the Agreement Concerning the System of Communications and Depots, note 179 above.

183 U. S. Reply, April 12, 1966, note 35 above

184 France might have alleged, perhaps, that the two-year period had begun on March 10, 1966, the date of the first French aide-memoire.

185 French aide-mémoire of March 10, 1966, note 30 above.

186 French aide-mémoire, March 29, 1966, note 34 above. The 1958 agreement would have required a minimum of a two-year period prior to the termination.

187 The general rule was recognized by the Permanent Court of International Justice in the Case Concerning the Factory at Chorzów (Claim for Indemnity)—(Jurisdiction), [1927] P.C.I.J., Ser. A., No. 9, at 31.

188 Draft Art. 59 of the I.L.C. states that “ [a] fundamental change of circumstances … may not be invoked … [i]f the fundamental change is the result of a breach by the party invoking it either of the treaty or of a different international obligation owed to the other parties to the treaty.” (Emphasis added.) I.L.C. Rep., note 134 above, in 61 A.J.I.L. at 428 (1967).

189 ”… the attention of the French Government is called to the fact that its actions in withdrawing from, abrogating or repudiating existing agreements will entail financial problems and responsibilities that must be taken into account in any discussion of these actions.” United States Reply, April 12, 1966, note 35 above. This statement, in the context of the Franco-American correspondence, should suffice to defeat an allegation that the failure of the United States to protest French action on clearly stated legal grounds, and the subsequent conduct of the United States, conscituted a waiver or acquiescence on its part. See also Our Changing Partnership with Europe, Report of Special Study Mission to Europe, 1966, House Committee on Foreign Affairs, Feb. 22, 1967, 90th Cong., 1st Sess., House Bep. No. 26, App. I, p. 37. Delbez (note 79 above, at 249) speaks of “faute cowtractuelle caractérisée.” The same conclusion is reached by Rousseau, note 138 above, at 762.

190 See note 213 below.

191 The sites are located respectively in Casteau near Mons, Belgium; in Borne, Italy; and in Maastricht, The Netherlands.

192 NATO Council Press Communique M 1(66)4 of June 8, 1966, pars. 3(b), (e) and (f), reproduced in 54 Dept. of State Bulletin 1001 (June 27, 1966).

193 The financial aspects of the transfer out of France of NATO facilities have been causing much concern. See, for instance, Twelfth NATO Parliamentarians' Conference, Paris, Nov. 14-18, 1966, Report of the U. S. Bel. For the Use of Sen. Committee on Foreign Relations, March 31, 1967, p. 30. A House of Representatives Study Mission to Europe was disappointed to be unable to find reasonable estimates of the cost of moving NATO and U. S. properties from France. Our Changing Partnership with Europe, Report of Special Study Mission to Europe, 1966, of Rep. Edna F. Kelly, Chairman, etc., of the House Committee on Foreign Affairs, House Rep. No. 26, 90th Cong., 1st Sess., p. 8 (Feb. 22, 1967). However, Defense Secretary Robert McNamara, in his testimony before the House Committee on Foreign Affairs during the hearings on the Foreign Assistance Act of 1967, put forward certain figures. First, he mentioned that NATO-financed facilities in France were worth ” a b o u t “ $750 million, of which the U. S. had financed “ about “ $300 million, the share of this country in the NATO financing having been three-sevenths. (This share has been recently negotiated downward to 25.7 percent for the future, including France, or 29 percent excluding France.) Second, he specified that the properties financed unilaterally by the U. S. in France amounted to “ about “ $550 million. Secretary McNamara estimated at “less than $150 million” (of which “only $40 to 50 million” in foreign exchange), the cost of the move out of France, including the removal to a destination elsewhere in Europe, of some 820,000 tons and 70,000 TJ. S. citizens. Hearings on the Foreign Assistance Act of 1967 Before House Committee on Foreign Affairs, 90th Cong., 1st Sess., Pt. I, April 11, 1967, pp. 132-133, 140 (1967). But for different estimates, see Our Changing Partnership with Europe, above, pp. 8-9. (General Lemnitzer, SACETJR, estimated (in 16 NATO Letter 5 (Jan. 1968)) that more than 100,000 personnel and more than one million tons of supplies and equipment have been moved out of France.) Finally, it should be pointed out, that these short-term costs of the move do not include either the loss of the value of the assets that all the NATO nations, and particularly the U. S., had previously financed in France, or the cost of building the required new installations in other NATO-member countries. See also below, at note 242. According to newspaper reports, after “long and laborious” negotiations, France agreed to pay 88 million francs for the building taken over from the NATO Council in Paris (less 10% corresponding to the French contribution to the construction of the building). Le Monde, March 9, 1968, p. 3, col. 5.

194 Case Concerning the Factory at Chorzów (Claim for Indemnity)—(Jurisdiction), [1927] P.C.I.J., Ser. A., No. 9, at 21.

195 Case Concerning the Factory at Chorzów (Claim for Indemnity)—(Merits), [1928] P.C.I.J., Ser. A, No. 17, at 27.

196 These obligations could be said to derive from the Council Resolution of 1951 which embodies the understanding of the parties as to the common use of the infrastructure projects, other decisions and agreements on common financing, the written or unwritten “separate arrangements” (see the preamble in the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty, note 53 above), as well as the subsequent conduct re-enforcing the obligation to continue making the facilities available for common use.

197 see, e.g., Protocol in preceding note, Art. 9. So far as military headquarters are concerned, Art. 9(b) might perhaps enable France to counterclaim for the loss in value of the returned property (“negative residual value“). See also text below at notes 248 ff. There is a proviso reserving the Council authority to “decide otherwise.

198 The compensation would certainly include the value of the use for the remaining years before Prance could lawfully withdraw from the Treaty, calculated on the basis of a useful life of each project, and the value of the benefit gained by France thereafter for the remainder of the useful life of the project.

199 Secretary Busk in Hearings on the Atlantic Alliance Before the Subcommittee on National Security and International Operations of the Senate Committee on Government Operations, 89th Cong., 2nd Sess., Pt. 5, pp. 151-152 (June 16, 1966).

200 ibid. 151.

201 NATO Press Rel. M3(66)3, NATO Ministerial Meeting, Final Communique, Paris, Dec. 16, 1966, par. 23, reproduced in 15 NATO Letter 13, at 29 (Jan., 1967). The transfer to the newly constructed complex in Belgium was completed in late 1967. Financial problems have arisen in this context also. The Council decision to build a new permanent headquarters at Heysel near Brussels may remain a dream.

202 par 3(d) of NATO Council Press Communique M 1(66)4, note 192 above. The staffs of the Commander-in-Chief Central Europe (AFCENT), and of the Commandersin- Chief of the Land and of the Air Forces in Central Europe (LANDCENT and AIRCENT) were merged and placed directly under the AFCENT Commander. 1967 NATO Letter 12-19 (March, 1967). “Over 1,000 personnel economies were realized.“ General Lemnitzer in 16 NATO Letter 6 (Jan., 1968).

203 Ibid. MI(66)4, par. 3(g).The Standing Group originally located in Washington, D. C, functioned also as executive agent of the Military Committee. It has never proved very effective and its continued existence without France might have been resented as a proof of “Anglo-Saxon” domination within the Alliance. The International Military Staff has the task of ensuring that appropriate steps are taken for the implementation of the Military Committee's policy and decisions. To this end it prepares plans and studies, and recommends military policies to the Committee. Beaufre, note 67 above, at 52-54.

204 The Secretary General decides, presumably on the basis of the potential French interest, whether a matter should be considered by the Defense Planning Committee or the Council. The Committee meets either on the ministerial level (Defense and Foreign Ministers) or on the level of permanent representatives.

205 See note 101 above.

206 Hearings on United States Troops in Europe Before Combined Subcommittee of Sen. Foreign Relations and Armed Services Committees, Sen. Comm., 90th Cong., 1st Sess., especially pp. 5-6, 34 (April 26 and May 3, 1967).

207 This means that the NATO military authorities had to work out their force proposals for the period beyond 1970. After an interim five-year report for 1966-1970, the “ f i r s t “ NATO five-year plan covering the period 1968 through 1972 was adopted in December, 1967. See par. 7 of NATO Defense Ministers Communique, Paris, July 25, 1966, in 14 NATO Letter 25 (Sept., 1966); pars. 17, 18, 19, Final Communique of the NATO Ministerial Meeting, Paris, Dec. 16, 1966, note 201 above; par. 13, NATO Press Communique M4(67)3, Dec. 14, 1967. A confidential SHAPE paper proposing further changes in NATO strategy as a result of a study has been prepared. New York Times, April 20, 1967, p. L10, col. 1. For details of the “five year “ procedure, see Hearings on U. S. Troops in Europe, 1967, note 206 above, pp. 20-21. See also Ambassador Harlan Cleveland, “The Eesurrection of NATO,“ address before the Natl. Press Club, Washington, D. C, Aug. 23, 1967 (TJ. S. Mission to NATO, 1967); and Vandevanter, note 111 above, at 78.

208 This Command was officially decided upon in 1950 but because of various objections of a political nature it was only activated in 1967. New York Times, June 24, 1967, p. CIO, cols. 4-5. Some 410,000 square miles of the ocean facing the Atlantic coast of Prance and North Africa were within the scope of the NATO Commands in France.

209 See par. 15 of the Dec. 16, 1966, Communique, note 201 above. France did not associate itself with this decision. Ibid., par. 22. See generally note 92 above.

210 New York Times, Dec. 15, 1966, p. Ml, col. 7; par. 16 of the Dec. 16, 1966, Communique, note 201 above. This Committee evolved from the Special or “Mc- Namara Committee,” note 92 above.

211 New York Times, loc. cit. A new NATO force planning exercise (based on the 1968-1972 force plan), an experimental NATO communications satellite system, which is to bring about “ a revolution” in command and control process, and a new mechanism for joint development and production of armaments have also been mentioned. Under Secretary of State Rostow, “Concert and Conciliation: The Next Stage of the Atlantic Alliance,” 57 Dept. of State Bulletin 422 (Oct. 2, 1967).

212 Par. 15, NATO Press Communique M4(67)3, Dec. 14, 1967; New York Times, June 24, 1967, p. M10, col. 4. The new naval force, activated on Jan. 13, 1968, is the outgrowth of a U. 8. initiative. In May, 1967, the NATO Defense Ministers discussed the plans proposed by the United States to “bolster NATO's flanks” most exposed in a crisis situation. These plans contemplated naval task forces rapidly available to the Alliance. The Mediterranean fleets would be placed under the direct command of SACETJR and the Atlantic naval force under the direct command of SACLANT. The Defense Ministers did not go as far as this proposal.

213 There is no agreement on the extent of this impairment. NATO conventional forces, it is argued, deprived of the possibility to stockpile ammunition in France, could not hold off an attack from the East for more than a few days. Disposal of U. S. Military Installations and Supplies in Prance, Report by Senator Ernest Greening, Chairman, Subcommittee on Foreign Aid Expenditures of the Sen. Committee on Government Operations, Sen. Doc. No. 16, 90th Cong., 1st Sess., p. 7 (April 6, 1967). Others deny the relevance of this factor in modern mobile warfare. Hearings on U. S. Troops in Europe, 1967, note 206 above, pp. 25-26 and 50-51. General Lemnitzer, SACEXJE, states that, in view of the “possible loss” of the important French forces from the center region and “ little likelihood of any significant increases in force commitments,” he has had to “ thinout “ the forces; this means an earlier commitment of reserves and increased “possibilities for the earlier employment of selected nuclear weapons.” 16 NATO Letter 4 (Jan., 1968). It has been suggested that one consideration on the part of some of the NATO nations in the decision to continue and strengthen NATO has been their fear of being left on the Continent “ alone“ with Germany, since the continuing presence of U. S. forces in Germany is predicated upon the continuation of the NATO structure, and the British economic difficulties threaten the continuation of an effective British military “presence” on the Continent. See also Hunt, NATO Without France: The Military Implications (Adelphi Paper Ser., No. 32, Inscitute for Strategic Studies (Dec, 1966)); Amme, Jr., NATO Without Prance—A Strategic Appraisal (1968).

214 Aides-memoire of March 10 and 11, 1966, note 30 above.

215 For a discussion of the lack of precision in Art. 5 of the Treaty containing the commitment in case of armed attack, see text at note 84 above

216 Letter of General de Gaulle to President Johnson, March 7, 1966, note 29 above.

217 Hearings on the Atlantic Alliance, 1966, note 44 above, Pt. 1, pp. 8, 32-33, Pt. 3, pp. 113-114, Pt. 4, p. 129, Pt. 5, pp. 159-160, 164. The events at the outbreak of World War I bear out the proposition advanced by Secretary Acheson. After more than half a century there is still far from general agreement as to “who provoked whom” in 1914. In private conversations French officials have sought to minimize the importance of the term “unprovoked” as used by General de Gaulle. Ibid, at 159.

218 The United States reportedly employed it recently within NATO in connection with the Cyprus controversy.

219 An attack that was in fact provoked could not serve as a lawful basis for the exercise of “collective self-defense” within the meaning of Art. 51 of the TT.N. Charter.

220 19 rj.N. Treaty Series 51, as amended by a Protocol of Oct. 23, 1954, 211 ibid. 342; 43 A.J.I.L. Supp. 59 (1949), 49 ibid. 128 (1955). The parties to this treaty are Belgium, France, Luxembourg, The Netherlands, United Kingdom, Federal Eepublic of Germany, and Italy.

221 Ibid., Art. X.

222 Article 5 reads: “ If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power.“ Compare this article with the wording of Art. 5 of the North Atlantic Treaty as quoted and discussed at note 82 above.

223 Charpentier, note 128 above, at 431-433. However, France has consistently refused to comply with its obligation to submit the level of stocks of its nuclear weapons to a decision of the Union as provided by the 1954 Protocol to the 1948 Brussels Treaty. Stikker, note 23 above, at 365.

224 Aides-mémoire of March 10, 1966, and of March 29, 1966, notes 30 and 34 above.

225 The Council agreed that political problems could be considered by the Council in permanent session and when “ a sufficient agreement” is reached, the elaboration of more technical “military agreements will be referred to discussions between the French High Command and SACEUR.” NATO Council Press Communique of June 8, 1966, pars. 4 ( a ), (d), (e), note 192 above.

226 Ibid., par. 4(b), (c). NADGE is a vast communications and control system for air defense.

227 France also continues to participate in such NATO technical activities as the Military Agency for Standardization in London and various Allied communication electronic activities. France announced that as of Jan. 1, 1967, it would cease to contribute to NATO infrastructure expenses and to most of the military budget. However, France reportedly has agreed to continue to contribute to works approved for construction as of Sept. 7, 1966. Staff Memorandum on United States Investment of Military Assistance Funds in Military Installations Located in France, House Committee on Foreign Affairs, 90th Cong., 1st Sess., Comm. Print, March 1, 1967. More than 100,000 flights a year are made over French territory for communication, supplies, and training purposes by aircraft of NATO members. In May, 1966, France announced that the year-to-year permission for military aircraft to fly over French territory was changed to a monthly basis and this caused concern among France's allies. Subsequently, it restored the year-to-year permission. At the time, and before France granted the year-to-year permission, some suggested that “ it would be unwise to count too much on the cooperation of France.” 12th Ordinary Sess., Assembly of Western European Union (W.E.U.), Doc. 375, as reproduced in 14 NATO Letter 24-25 (Sept., 1966); Atlantic Community News, Oct. 1967, p. 1. Most recently, however, the French Government has again imposed an additional prerequisite, thus returning in effect to the month-to-month basis.

228 In 1967, French Navy ships, submarines and maritime patrol aircraft participated in the exercise “Perfect Play “ held in the Eastern Atlantic under S ACL ANT, Norfolk, direction. Some 20 ships and more than 20 aircraft participated, coming also from Canada, The Netherlands, Norway, Portugal, and the U.K. The French participation resulted from a request made by the Trench liaison officer attending the May 9-10, 1967, session of NATO Defense Ministers. New York Times, May 10, 1967, p. L9, col. 1; Atlantic Community News, Oct., 1967, p. 1.

229 New York Times, April 19, 1967, p. L44, col.

230 Ibid.

231 Ibid., col. 5.

232 On Franco-Canadian negotiations see note 32 above.

233 France announced i t was ready to maintain the facilities granted to the German forces in France under the terms of the Agreement of Oct. 25, 1960. As a matter of fact, this agreement is still in force and unmodified. On the question of French troops in Germany generally, see Charpentier, “ Le retrait français de l'O.T.A.N.,“ 12 Annuaire Français de Droit International 409 a t 429 (1966); see also “ Le retrait de la France des structures militaires de l'O.T.A.N. et les forces françaises d'Allemagne,“ ibid. 784-798.

234 La politique éitrangére, note 13 above, pp. 88-89. An English translation of the note of the Federal Republic of Germany of May 3, 1966, is reproduced in 5 Int. Legal Materials 681-682 (No. 4, July, 1966). The Federal Government denied that the status of French troops in Germany could continue to be based on the Paris Convention of Oct. 23, 1954 (see text immediately below), because the series of the 1954 London-Paris agreements and Council resolutions “embodied a balance of rights and duties” for all NATO members and had to be taken as a whole and conscituting a system, in which the right to station foreign troops on German territory was conditioned upon their being placed under an integrated command in which each country participated in an appropriate and equal degree. This system was modified as a result of the French withdrawal, since French forces reverted to sole French control. For previous communications by the Federal Government, see La politique étrangére, note 13 above, at 58 (March 29, 1966), and 59 (April 6, 1966).

235 Art. 1 of the Convention on Relations between the Three Powers and the Federal Republic of Germany, signed at Bonn on May 26, 1952, as amended at Paris on Oct. 236 1954 (T.I.A.S., No. 3425 at 1483, 331 TJ.N. Treaty Series 327; 49 A.J.I.L. Supp. 57 (1955)), terminates the Occupation regime and grants “full authority of a sovereign State “ to the Federal Republic. The “retained rights “ (pertaining to reunification, Berlin, the peace settlement and the stationing of troops in Germany) are specified and harmonized with the newly recovered sovereignty in Arts. 2 and especially 4 and 5. In effect, the rights of the Three Powers to station forces in the Federal Republic of Germany remain unqualified to the extent that they are “required for the exercise” of the other “ retained “ rights mentioned above. Beyond that, since the mission of these forces is also “ the defense of the free world” and the Three Powers “ d o not desire to exercise their rights regarding the stationing of their forces” for that purpose “except in full accord” with the Republic, a separate Convention on the Presence of Foreign Forces in the Federal Republic of Germany was signed at Paris on Oct. 23, 1954, regarding the strength and nationality of the foreign forces in the Republic. T.I.A.S., No. 3426, 334 TJ.N. Treaty Series 3; 49 A.J.I.L. Supp. 120 (1955); “ Le retrait de la France des structures militaires de l'O.T.A.N. et les forces franchises d'Allemagne,” 12 Annuaire Français de Droit International 784 at 788-791 (1966). For the text of the Supplementary Agreement with respect to Foreign Forces Stationed in the Federal Republic of Germany, signed at Bonn on Aug. 3, 1959, entered into force July 1, 1963, see T.I.A.S., No. 5351, 481 TJ.N. Treaty Series 262. This agreement also supplements the Agreement between the Parties to the North Atlantic Treaty regarding the Status of Their Forces, signed at London on June 19, 1951.

236 French reply of May 18, 1966, to the German note of May 3, La politique étrangére, note 13 above, at 93, translation in 5 Int. Legal Materials 683-684 (No. 4, July, 1966). See also French Permanent Representative to NATO, M. Pierre de Leuese, in Combat, June 22, 1966.

237 Franco-German exchange of letters, Dec. 21, 1966, La politique étrangére, note 13 above, at 240-242, translation in 6 Int. Legal Materials 41 ff. (No. 1, Jan., 1967). For the English text of the intentionally obscure formula and treaty provisions cited therein, see Stein and Hay, Law and Inscitutions in the Atlantic Area, Readings, Cases and Problems 1085, note 33a (1967). See also note 235 above.

238 Note 32 above.

239 An Agreement Regarding the Operation, Maintenance and Security of the Donges-Metz Pipeline System, signed at Paris on March 24, 1967, entered into force April 1, 1967, with a Protocol in which the United States “takes note that the question of the utilization of the pipeline system in time of war is reserved by the French Government.” T.I.A.S., No. 6242.

240 New York Times, Dec. 15, 1966, p. L8, col. 1.

241 Our Changing Partnership with Europe, note 189 above, p. 7, and Appendix II, pp. 38-39. The French Government specified in both its notes of March, 1966 (notes 30, 34 above), that it was “disposed to enter into a discussion on the military facilities which might be placed at the disposal of the government of the United States on French territory in the event of a conflict in which both countries would participate by virtue of the Atlantic Alliance. These facilities could be the subject of an agreement to be concluded between the two governments.“

242 This global sum, named by the Dept. of State, represents the total U. S. military investment made in France, including the movable property which, under the bilateral agreements, was subject to removal from France. It is not clear what portion of this investment has been salvaged. However, this figure does not include the additional substantial expenditures contributed by the U. S. as a member of NATO to the financing of common NATO installations in France. Our Changing Partnership with Europe, note 189 above, pp. 8-9, and Appendix III, p. 50. In its aide-mémoire of April 12, 1966, the U. S. Government called the attention of the French Government to the fact that “ its action in withdrawing from, abrogating or repudiating existing agreements will entail financial problems and responsibilities that must be taken into account…. “ See also note 193 above. Le Monde reports (March 2, 1968, p. 29, Col. 4) that France has agreed to pay 65 million francs for material “abandoned by American forces” on French territory and that new negotiations are to take place concerning “immovable property” left on former American bases in France.

243 Interview of the French Foreign Affairs Minister Couve de Murville on the NATO Question, Station Europe No. 1, April 6, 1966, in Hearings on IT. S. Policy toward Europe, note 23 above, p. 434.

244 On the termination clauses of the five bilateral agreements see text at note 178 above.

245 Art. 7 provides that ‘ ‘ the Air Depot and the other fixed properties which are or which may be constructed thereon shall remain French property,” and that any permanent improvements shall be relinquished to the French Government “without giving rise to cost rights or compensation.” On the other hand, the United States would not be required to bear the cost of restoring the air depot “into conditions existing at the time of [its] occupancy by the U. S. Air Force.” “ [R]eversionary rights with respect to permanent improvements constructed solely by United States funds on privately owned land will be negotiated by the competent authorities of the two Governments provided that in no case shall reversion to private owners … give rise to claims against the United States Government.” Note, however, that Art. 7 regulates relinquishment or reversion “ [a]t the expiration of the present agreement or upon written notification by the United States Air Force of the relinquishment of the Air Depot.” Art. 8 gives the TJ. S. Air Force the right to remove movable property belonging to the United States. Agreement of Feb. 27, 1951, note 32 above.

246 Agreement of Oct. 4, 1952, Art. IX; Agreement of June 30, 1953, Art. X; Agreement of Dec. 8, 1958, Art. IV(a), see note 32 above.

247 Arts. IX (b), X(2) and IV (b) respectively of these agreements. Ibid. The June 17, 1953, Exchange of Notes with respect to the establishment of a TJ. S. military headquarters in France (note 32 above) includes the following paragraph: “The procedures provided for the setting up and functioning of the installations of the Line of Communications will also apply to this headquarters. Moreover, the French Government will accord to the United States Government under the same conditions the facilities necessary for this installation.” The 1953 Agreement thus presumably incorporated by reference the conditions under which facilities were made available to the U.S.by the Line of Communications Agreement of Nov. 6, 1950, which has not been published. Whatever conditions were specified in that Agreement were in any event superseded by the residual value clause in Art. IV(b) of the 1958 System of Communications Agreement, Art. VII of which provides that “ [a] 11 references to the Agreement of November 6, 1950, in other agreements concluded between the Governments of the United States and of the French Republic, or between the competent authorities of the two countries, will be considered as applying to the present Agreement.“ Hence, the June 17, 1953, Agreement is on the same footing, so far as residual value is concerned, as the three other agreements.

248 The spirit of partnership and co-operation that prevailed at the time may be the reason why even the multilateral agreement of Aug. 3, 1959, to supplement the NATO Status of Forces Agreement of June 19, 1951 (T.I.A.S., No. 5351), fails to give any clue as to the meaning of “residual value” used in Art. 52, par. 1. For a settlement of a somewhat similar problem see Agreement Relating to the Transfer of Surplus U. S. Property and Installations in France and in Certain French Overseas Territories, May 28, 1946, T.I.A.S., No. 1928, at 5 and 56, 84 U.N. Treaty Series 80.

249 Art. 7 of the Air Depot agreement of Feb. 27, 1951, states that the “U. S. government will not be required to place, or to bear the expenses of placing, the Air Depot or any portion thereof into conditions existing at the time of occupancy of the Air Depot by the United States Air Force.” Note 245 above. In 1964 the IT. S. Government proposed to France negotiations designed to obtain agreement on a method of determining the amount of residual value payable to the United States for facilities released to France voluntarily and representing a U. S. capital investment of more than $6 million. France has not as yet given a formal response to this proposal. Our Changing Partnership with Europe, note 189 above, Appendix III, p. 41.

250 The “residual value” problem would presumably arise only if it is agreed that the relinquished “ facilities “ … are not needed by the military forces of the United States.” See text above at note 247.

251 It is interesting to note that France, in its new declaration of May 20, 1966, accepting the compulsory jurisdiction of the International Court of Justice, expressly excluded “les difftrénds concernant des activités se rapportant a la Defense Nationale.“ It is likely that this new reservation was designed, among other purposes, to prevent the International Court from having jurisdiction in a case in which the withdrawal of France from the NATO integrated military commands would be an issue. For the text of this new declaration, see 12 Annuaire Français de Droit International 161 (1966), and the comment by Feydy, Hid. at 155-160.

252 A recent survey of the atcitudes of French and German leaders concluded as follows: “There seems to have been a shift in the attention and imagination of French and German leaders. Their reason, and their perception of military necessities, still tie them to the Atlantic. But their hearts, their vision, and imagination seem increasingly preoccupied either with Europe or with their own nation-state. The vision of a rich, multidimensioned and growing Atlantic community has failed.“ Deutsch, Edinger, Macridis, Merritt, France, Germany and the “Western Alliance 283 (1967).

253 Buchan, note 92 above, at 60-61.

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Law and Peaceful Change in a Subsystem: “Withdrawal” of France from the North Atlantic Treaty Organization

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