Part V offers projections for the future of anticipatory collective self-defense in the Charter era.Between the time of the American alliance with France 177812 and the time of the Decla
The Crimean War
During the Crimean War of 1854, the potential for reactive and anticipatory collective self-defense was realized anew The war began when Russia occupied the Turkish principalities of Moldavia and Wallachia, a move that tested the boundaries of power and security in Eastern Europe In response, Britain and France declared opposition to Russia’s actions and aligned to deter further aggression, underscoring how interstate conflict can trigger coalitions in defense of regional stability and the Ottoman realm.
They had coordinated, and would continue to coordinate, on the most effective means to liberate the Sultan's territory from foreign invasion and to achieve the objective of reestablishing peace between Russia and Turkey, thereby preserving the continent from lamentable complications.
Parties agreed to maintain, in wartime, such naval and military forces as are necessary to meet the requirements of war, with the description, number, and destination of those forces to be determined by mutual agreement, potentially including deployment to Turkey for defense against attack The Final Act of the Ministerial Conferences, dated May 15, 1820, to complete and consolidate the organization of the Germanic Confederation, contemplated collective action in response to threatened attacks as well as invasions (Articles 35–41, 47, 71) The Treaty of Peace between Austria and Prussia, dated August 23, 1866, dissolved the Germanic Confederation (Art 4, 133 Consol T.S 71, 82).
Fearing a potential Spanish reconquest of the Andean states, Bolivia, Chile, New Granada (now Colombia), and Peru signed the Treaty of Lima on February 8, 1848, to form a confederation to meet the perceived threat; however, as the danger dissipated, the treaty was never ratified (Palmer, supra note 15, at 81–82; Stoetzer, supra note 18, at 9).
26 R.Y Jennings, The Caroline and McLeod Cases, 32 Am J INT'L L 82, 89 (1938).
See also NWP 9A, supra note 1, [4.3.2.1, n.29 (citing Bunn, supra note 1, at 70)]; a primary source referenced is a letter from U.S Secretary of State Daniel Webster to U.K Ambassador Lord Alexander B Ashburton, dated August 6, 1842, in Destruction of the Caroline, 2 Moore’s Digest § 217, at 411–12 (1906); another document is Webster’s April 24, 1841 letter to U.K Minister Henry S Fox, listed in 1 Moore’s Digest.
KENNETH E SHEwMAiER, THE PAPERS OF DANEL WEBsTER: DIPLOMAIC PAPERS 58, 67
Dating from 1983, NWP 1-14 rejects the Webster formulation as overly restrictive in today’s context, arguing that modern weapons systems are highly lethal and can be deployed with little or no warning.
27 For analysis of wartime diplomacy, see PALMER, supra note 15, at 101-10; TAYLOR, supra note 18, at 62-82. arise, be determined by subsequent arrangements 28
Britain and France renounced any advantage for themselves and invited other European powers to accede to the alliance, while Austria and Prussia sought to avoid involvement in the war by concluding a Treaty of Alliance that stated a mutual offensive advance would be undertaken only in the event of the incorporation of the Principalities or an attack on or passage of the Balkans by Russia In late 1854, Austria, Britain, and France allied to protect Austria’s occupation of the same principalities against a return of Russian forces, pledging their Offensive and Defensive Alliance in the present War and the use of military and naval forces as required Similar terms appeared in an allied convention with Sardinia.
In 1855, Britain and France pledged to furnish Sweden with sufficient naval and military forces to cooperate with Swedish troops in resisting Russia’s pretensions or aggressions, thereby tightening the ring of alliance around Russia.
Preparations for the Crimea expedition, as outlined in the Anglo-French treaty, clearly reflected the principle of anticipatory self-defense Likewise, the Austro-Prussian alliance recognized the concept of offensive advance, allowing for anticipatory action if Russia moved through the Balkans—meaning they would strike Russia only if its forces threatened Austrian borders Similar provisions were present in both the Austro-Anglo-French alliance and the Sardinia military convention The Swedish treaty also provided for a preemptive strategy in the face of potential Russian aggression.
28 Convention Relative to Military Aid to Be Given to Turkey, Apr 10, 1854, Fr.-Gr. Brit., art 2, 111 Consol T.S 393, 395-96, referring to art 1.
30 Treaty of Offensive and Defensive Alliance, Apr 20, 1854, Aus.-Pruss., Premable,
Under the Treaty of Alliance dated December 2, 1854, Articles 3 and 6, as cited in Consol T.S 295–298 (French) and translated by the author, laid out a framework that later arrangements would refine by fixing the numbers, description, and destination of the forces; Prussia was later invited to accede.
33 Id Cf Military Convention, Jan 26, 1855, 112 Consol T.S 453 (Fr.).
34 Common agreement would determine forces' numbers, description, and destina- tion Sweden pledged not to cede, exchange territory, give pasturage, or fishery rights
"or rights of any other nature whatsoever and to resist any pretension by Russia
to establish the existence of any Rights aforesaid." Treaty of Stockholm, Nov 21,
Primary sources from 1855—specifically arts 1-2 and 114 Consol T.S 13, 15-16 (Fr.), translated by the author—document that the United States pursued benevolent neutrality toward Russia during the war This assessment is also discussed by historian John Lewis Gaddis in The Long Peace: Inquiries into the History of the Cold War (1987).
35 Convention Relative to Military Aid to Be Given to Turkey, supra note 28.
36 Treaty of Offensive and Defensive Alliance, supra note 30.
37 Treaty of Stockholm, supra note 34.
The settlement of the Crimean War established a mechanism for mediating future disputes before resorting to force, marking an early step toward peaceful dispute resolution and serving as a forerunner of the UN Charter’s Article 33 This framework is set out in the General Treaty for the Re-Establishment of Peace (March 30, 1856), Article 8 (114 Consol T.S 409, 414 (Fr.)), and was complemented by a related protocol that proposed making this dispute-resolution procedure available for future disputes.
Informal and formal alliances grounded in anticipatory self-defense have long influenced security dynamics For example, before the Franco-Austrian War (1858–59), France and Sardinia reached an oral agreement that created a defensive and offensive self-defense arrangement, with France pledging aid to Sardinia and signaling it would declare war if Italian territory was occupied or Austria violated a treaty During the Franco‑Prussian War (1870–71), the belligerents informally agreed to cooperate with Britain to safeguard Belgian neutrality if Belgium was threatened These cases illustrate how informal self-defense arrangements can carry significant conflict potential, yet also show how anticipatory action can influence outcomes—Napoleon III’s response to Prussian mobilization during 1858–59 inclined him toward peace A similar Russian‑U.S informal understanding arose during the U.S Civil War, when a Russian admiral privately advised Farragut that he had sealed orders to support the United States if it faced a war with powers backing the Confederacy Today, this form of informal collective self-defense is available under the UN Charter.
Following the William Walker filibustering expeditions, Chile, Ecuador, and Peru signed—but did not ratify—a Treaty of Mutual Assistance and Confederation at a conference on April 14, 1856 The treaty provided that if the United States attacked one or more of the signatories, all would unite against the aggressor, but the agreement was never ratified (Stoetzer, supra note 18, at 9–10).
39 Count Nigra, Notes on Results of Meeting between Napoleon III of France and Count Cavour of Piedmont, July 20, 1858, arts 1, 3-4, reprinted in KEY TRATIES, supra note 18, at 401.
41 Treaty Relative to Independence and Neutrality of Belgium, Aug 9, 1870, Gr. Brit.-Pruss., arts 1-2, 141 Consol T.S 435, 438-39; Treaty Relative to Independence and Neutrality of Belgium, Aug 11, 1870, Fr.-Gr Brit., arts 1-2, 141 Consol T.S 441, 443-
44 See also Treaty Relative to Separation of Belgium from Holland, Nov 15, 1831, art.
7, 82 Consol T.S 255, 259 (Fr.); Treaty of London, Apr 19, 1839, art 7, 88 Consol T.S.
445, 449 (Fr.) (also guaranteeing Belgian neutrality) German violation of Belgian neu- trality was a cause of World War I See KAGAN, supra note 22, at 61, 129, 204.
43 The Russian fleets were wintering in New York and San Francisco at this time. JAMES P DuFFY, LINCOLN's ADMIRAL: THE CIVIL WAR CAMPAIGNS OF DAVID FARRAGuT 220-
During a low point in Union fortunes, the Russian visit drew notable attention as Russia’s representatives were feted in New York, San Francisco, and Washington; the era’s diplomacy raises the question of whether an alliance between Russia and the United States was discussed then or as early as 1861 Most scholars contend that there were at least conversations toward that end See D.P Crook, The North, The South, and The Powers 1861-1865, at 317-18 (1974); Donaldson Jordan & Edwin J Pratt, Europe and the American Civil War 200-01 (1969); Albert A Woldman, Lincoln and
THE RUSSIANS ch 9 (1952) Gaddis linked this proposed cooperation to U.S "benevolent neutrality" during the Crimean War GADDIS, supra note 34, at 5-6.
The Treaty Map Up to World War I, 1871-1914
After the Franco-Prussian War, the emergence of the Triple Alliance (Austria-Hungary, Germany, Italy) and the Entente (France, Russia, and later Great Britain) reflected a framework of reactive or anticipatory self-defense The 1907 Hague Conventions laid down rules for declarations of war and forbade wars to seize contract debts, but they did not address collective self-defense, leaving states to rely on alliance systems for protection Some alliances explicitly recognized anticipatory self-defense, and scholars such as Taylor argue that these coalitions, together with continental economic development, contributed to about thirty-four years of peace in Europe Whether the same peace can be said of post-World War II alliance systems and regional economic treaties remains a matter of debate In addition, the 1873 Convention of Schonbrunn provided that if aggression from a third power threatened European peace, the parties would reach a preliminary understanding and coordinate their conduct.
45 Treaty of Alliance Against Paraguay, May 1, 1865, Arg.-Braz.-Uru., art 1, 131 Consol T.S 119, 120 (Fr.); Treaty of Union and Defensive Alliance,Jan 23, 1865, art 1,
Key sources include 130 Consol T.S 401–402 and the July 10, 1865 Treaty of Alliance, listed at 131 Consol T.S 305–306 (Fr.); see also Stoetzer, supra note 18, at 10, 266 These references indicate that a war with several of these states persisted until the United States mediated an armistice in 1871 (Armistice, Apr.).
46 Definitive Treaty of Peace, May 10, 1871, Fr.-Ger., 143 Consol T.S 163 (Fr.).
47 ROBERT H FERRELL, PEACE IN THEIR TIME: THE ORIGINS OF THE KELLOGG-BRIAND
PACT 5-6 (1968), referring to Hague Convention (III) Relative to Opening of Hostilities, Oct 18, 1907, arts 1, 3, 36 Stat 2259, 2271 [hereinafter Hague III].
48 Hague Convention (II) Respecting Limitation of Employment of Force for Recov- ery of Contract Debts, Oct 18, 1907, art 1, Stat 2241, 2251 [hereinafter Hague I].
Gaddis notes that the simpler alliance systems of the Cold War era—coinciding with much of the Charter era—proved more durable than those of the past century, which depended on the personal diplomacy and strategic finesse of figures like Metternich or Bismarck to hold them together (Gaddis, supra note 34, at 222).
51 For analysis of alliance systems since World War II in the context of collective self-defense, see infra notes 253-329 and accompanying text See also George K Walker,
Integration and Disintegration in Europe: Reordering the Treaty Map of the Continent, 6
TRANSNAT'L LAW 1, 12-24 (1993) (surveying development of European economic sys- tems, particularly the European Union).
52 Agreement, May 25-June 6, 1873, Aus.-Hung -Russ., 146 Consol T.S 217 (to which Germany acceded Oct 22, 1873) See 2 KEY TREATIES, supra note 18, at 508;
A special convention would be necessary to undertake military action 5 3
Britain formed a defensive alliance with Turkey in 1878 to counter Russian aggression, and in 1879 Austria-Hungary and Germany signed a Treaty of Alliance aimed at Russia; under this pact, if Russia attacked either party alone or through active cooperation or military actions that threatened the attacked party, the other signatory was obligated to assist.
By the late 19th century, great powers sought durable peace through formal alignments, marking the first permanent peace-time arrangement between two major powers since the end of the ancien regime Within two years, three empires stood together on one side and pledged benevolent neutrality if any party went to war with a fourth Great Power In the same era, Chile fought Bolivia and Peru in the Pacific War, a conflict that led to Bolivia losing its coast and Peru territory, underscoring how defensive alliances aimed to protect sovereignty and deter foreign aggression The drive to isolate France began with the 1882 Treaty of the Triple Alliance (Austria-Hungary, Germany, and Italy), a stable European alignment until 1915, with a defense obligation that if France attacked Italy or Germany, or if one or two signatories were attacked by France, the remaining members would come to their defense.
"without provocation" and were at war with two or more other Powers, then
53 Agreement, supra note 52, arts 2-3, 146 Consol T.S 220-21.
54 Convention of Defensive Alliance, June 4, 1878, Gr Brit.-Turk., art 1, 153 Con- sol T.S 67, 69.
55 Treaty of Alliance, Oct 7, 1879, Aus.-Hung -Ger., arts 1-2, 155 Consol T.S.
303, 307 (extended for five years by Protocol in Regard to Prolongation of Alliance of
The Protocol Concerning Continuation of the Treaty of 1879 and the Protocol of 1883, dated June 1, 1902, between Austria-Hungary and Germany, appears in 155 Consol T.S at 732 and extends the arrangement indefinitely on a three-year renewal basis The earlier dates, 1879 and 1883, are reprinted in 2 Key Treaties, supra note 18, at 629.
56 TAYLOR, supra note 18, at 264 See also WILLIAM L LANGER, EUROPEAN ALLIANCES
AND ALIGNMENrs 171-96 (1931) [hereinafter LANGER, EUROPEAN ALLIANCES]; PALMER, supra note 15, at 163-66 (discussing negotiations between French and Russian officials from 1870-1880).
57 This provision applied if a party were at war with Turkey, but only after previous agreement among the three states League of the Three Emperors, June 18, 1881, art 1,
158 Consol T.S 471 A treaty extended and slightly modified the 1881 agreement. Treaty Concerning Prolongation of Treaty of 1881, Apr 15, 1884, reprinted in 2 KEY
Under the 1881 Treaty of Alliance between Austria-Hungary and Serbia (extended to 1895 by the 1889 prolonging treaty), the three signatories pledged reciprocal “loyal and absolute neutrality” if any were involved in war with a third state, with a provision that the agreement did not apply to the Balkans; this commitment was reaffirmed by the Declaration Affirming Engagement of Mutual Neutrality, Oct 2–15, 1904, between Austria-Hungary and Russia, and for analysis of the League, see Langer, European Alliances, and Taylor.
18, at 5, 272-79, 304 (arguing the League was a "fair-weather system" that "worked only so long as there was no conflict").
58 Treaty of Defensive Alliance, Feb 6, 1873, Bol.-Peru, art 1, 145 Consol T.S 475,
484, and Protocol, May 5, 1879, 145 Consol T.S 482 See also Treaty of Peace and Amity, Oct 20, 1883, Chile-Peru, 162 Consol T.S 458; Armistice Convention, Apr 4,
1884, Bol.-Chile, 163 Consol T.S 423; STo~zER, supra note 18, at 10, 266.
59 LANGER, EUROPEAN ALILANCES, supra note 56, at 246. the other had to join the conflict 6 0 Articles 4 and 5 provided:
Under this defensive alliance, if a Great Power that has not signed the treaty threatens the security of one of the signatories and that state is forced into war, the other two signatories commit to observe benevolent neutrality toward their ally, while each reserves the right to take part in the war if it deems it appropriate, thereby joining in common cause with its ally.
If the peace of any party is threatened under the circumstances described in Articles 1–4, the parties shall promptly confer to determine the military measures required, with a view to eventual cooperation.
Secrecy was pledged; 6 1 this was among many "secret" treaties of the era, 62 which were not truly secret, being so only for specific terms In their
"secrecy" they were actually "engines of publicity." 63
60 Treaty of Alliance, May 20, 1882, arts 2-3, 160 Consol T.S 237, 241.
The alliance framework embodied in Arts 4–6 of the 160 Consol T.S at 241 was renewed by the Second Treaty of the Triple Alliance on February 20, 1887 (art 1, 169 Consol T.S 139, 141) A separate Aus.-Hung.-Italy treaty of the same date (169 Consol T.S 143) supplemented this pact, while another 1887 agreement required Germany to go to war if Italy did so to protect its African interests (Separate Treaty, Feb 20, 1887, Ger.-Italy, 169 Consol T.S 147) Germany and Russia subsequently signed the Reinsurance Treaty in June.
Under the 1887 German–Russian Reinsurance Treaty (Articles 1–2), the signatories pledged that if either nation found itself at war with a third great power, the other would observe benevolent neutrality toward its ally The pact also acknowledges Russia’s interests in the Balkan Peninsula and guarantees that the Bosporus and Dardanelles Straits would remain open An Additional Protocol dated June 18 further elaborates these commitments.
The 1887 German–Russian understanding provided that Germany would assist Russia in establishing a regular government in Bulgaria and would act as a benevolent neutral if Russia were required to defend the entrance to the Black Sea The Reinsurance Treaty between Germany and Russia was allowed to lapse in 1890 A third Triple Alliance was negotiated in the Treaty of Alliance dated May 6, 1891 See also the Fourth Treaty of Triple Alliance, June 28, 1902, art 14, 191 Consol T.S 286.
295 (renewing the alliance for six years, with a possibility of a further six-year renewal); Agreement Explaining and Supplementing Article VII of the Treaty of Triple Alliance of
The Austro-Hungarian–Italian pact dated December 15, 1887, with amendments through December 15, 1909, is discussed in Balkan affairs and reprinted in two key treaties (supra note 18, at 812) The Fifth Treaty of the Triple Alliance, dated December 5, 1912 (217 Consol T.S 311), renewed the alliance for the last time Throughout this period, the operative terms of the 1882 treaty—Articles 1 through 5—remained unchanged.
An illustrative example is the Secret Protocol of Nov 15, 1818, among the victors of the Napoleonic wars, which included a Military Protocol and was signed the same day as the published Protocol of Conference admitting France to the Concert of Europe Article 18 of the Covenant of the League of Nations required that future treaties of League Members be registered with the League Secretariat and published by it, and that no treaty would be binding until registered This registration requirement superseded terms such as Article 6 of the Treaty of Alliance (May 20, 1882) and prevailing state practice.
"Open covenants of peace openly arrived at" had been the first of President Woodrow Wilson's Fourteen Points, signaling transparency in peace agreements, but Covenant Members soon ignored Article 18 Article 102 of the United Nations Charter requires Members to register their treaties, and a treaty that is not registered cannot be invoked before a UN organ This procedural rule highlights the enforceability challenges of international agreements, a point discussed in international-law scholarship.
SiMMa, supra note 1, at 1103-16 Security agreements are often not published RESTATE- MENT (THIRD) OF THE UNITED STATES FOREIGN RELATIONs LAW § 312 r.n.5 (1987) [hereinaf- ter RESTATEMENT (THIRD)].
Analysis
The Covenant of the League of Nations and the Pact of
During the interwar years (1920–1939), the League of Nations Covenant and the 1928 Pact of Paris, commonly known as the Kellogg-Briand Pact, stood as the principal instruments of international security These treaties, including the self-defense reservation to the Pact of Paris and other related agreements, aimed to renounce war as national policy and to promote the peaceful settlement of disputes through collective security and diplomacy Together, they shaped the early 20th‑century legal framework for preventing aggression and guiding international cooperation.
92 See supra notes 28-38 and accompanying text.
93 See supra note 34 and accompanying text.
94 See infra Parts III.A, III.B for analysis of self-defense in the Charter era.
95 North Atlantic Treaty, Apr 4, 1949, 63 Stat 2241, 34 U.N.T.S 243, modified by Protocol on Accession of Greece and Turkey, Oct 17, 1951, 3 U.S.T 43, 126 U.N.T.S. 350; Protocol on Accession of Federal Republic of Germany, Oct 23, 1954, 6 U.S.T.
In 1997, agreements were signed to admit the Czech Republic, Hungary, and Poland to NATO membership, with the possibility of additional states entering in a second round, and the accession protocol was subsequently approved by the U.S Senate The State Department promoted NATO enlargement, while other policymakers criticized the expansion, reflecting a vigorous policy debate about its strategic and political implications For a fuller discussion of the expansion, see U.S Secretary of State Madeleine K Albright’s remarks on NATO expansion.
Beginning the Process of Advice and Consent: Statement Before the Senate Foreign Relations
Committee, 8 U.S Dep't St Dispatch 1 (Oct 1997) (favoring expansion); Madeleine K. Albright, NATO Expansion: A Shared and Sensible Investment: Statement Before the Senate Appropriations Committee, 8 U.S Dep't St Dispatch 12 (Nov 1997) (same); MANDEL-
BAum, supra note 22, at 45-65, 156, 164, 173-74 (opposing expansion); Amos Perlmutter
& Ted Galen Carpenter, NATO's Expensive Trip East, 77 FOREIGN AFF 2 (1998) (same).
On April 30, 1998, the Senate voted 80-19 to admit the Czech Republic, Hungary and Poland to NATO See Steven Erlanger, Key Senate Panel Passes Resolution to Broaden
NATO, N.Y TIMES, Mar 4, 1998, at Al; Eric Schmitt, Senate Approves Expansion of NATO by Vote of 80-19; Efforts at Delay Defeated, N.Y TIMEs, May 1, 1998, at Al
96 See infra notes 305-15 and accompanying text.
97 See, e.g., supra note 25 and accompanying text.
98 Cf 1945 I.CJ 59 Stat 1055, art 38(1); RESTATEMENT (THIRD), supra note 62, §§ 102-03. ments negotiated before World War II, along with the views of commenta- tors, demonstrates that anticipatory collective self-defense remained a legitimate response under international law.
The Covenant of the League of Nations
The Covenant of the League of Nations, embedded in the post–World War I peace treaties, created treaty law that could be applied territorially to League Members and their colonies and dependencies, thereby extending its reach across substantial parts of the world from 1920 through 1945 Although the League aimed to universalize international norms, several major powers were not continuously bound by its framework: Germany (member 1926–1933), Japan (member 1920–1933), the USSR (member 1934–1939), and the United States, which never joined.
The Covenant’s limits on the use of force were comparatively weak and did not directly address self-defense, even as its preamble urged member states to strive for international peace and security, to accept obligations not to resort to war, and to adhere to the Covenant itself; in this framework, Covenant Article 10 is cited as providing the relevant provisions.
Members undertake to respect and preserve, against external aggression, the territorial integrity and existing political independence of all Members In case of any such aggression or threat thereof, the Council shall advise on the means by which this obligation may be fulfilled.
The League of Nations Council included the Principal Allied and Associated Powers from World War I—France, Great Britain, Italy, and Japan—along with four additional League members Article 11 provided for the League to act in response to war or the threat of war, establishing a framework for collective security.
99 See F.P WALTERS, A HISTORY OF THE LEAGUE OF NATIONS ch 4 (1952) for analysis of drafting of the Covenant See also supra note 10 and accompanying text.
100 Vienna Convention on the Law of Treaties, May 23, 1969, art 29, 1155 U.N.T.S.
Under the Vienna Convention on the Law of Treaties, the customary rule is restated: unless a different intention appears from a treaty or is otherwise established, a treaty binds a party as to all its territory This principle is discussed by Ian Sinclair in The Vienna Convention on the Law of Treaties (2d ed 1984), pp 89–92, and is reflected in the Restatement (Third) of the Foreign Relations Law of the United States, supra note 62, § 322 & n 2, which notes colonial empires’ practice of specifying territorial application.
Article 1 of the League of Nations Covenant defined its original members as states that were signatories to the Treaty of Versailles, with the Covenant as Part I and other states named in the Covenant Annex—such as the Netherlands, which had been neutral during the war Additional states, dominions, or colonies could join the League if the Assembly approved See Walters, supra, notes 99, 43–44 The Assembly’s functions are discussed in notes 111–14 and the accompanying text Although the United States signed the Treaty of Versailles, the Senate never gave advice and consent.
102 Costa Rica, an original Member, withdrew in 1925, and Brazil and Spain in
103 LEAGUE OF NATIONS CovENANT art 4(1).
105 Id For President Woodrow Wilson, article 10 was the Covenant's key provision.
KAGAN, supra note 22, at 299; WALTERS, supra note 99, at 48-49 The United States was also mentioned but never joined the League See supra notes 10, 101 and accompanying text.
1 Any war or threat of war, whether immediately affecting any
Any threat to peace, whether or not it directly involves a member, is declared a concern of the entire League, which shall take any action deemed wise and effective to safeguard the peace of nations If such an emergency arises, the Secretary-General shall forthwith summon a meeting of the Council at the request of any member.
Additionally, every Member has the friendly right to bring to the attention of the Assembly or the Council any circumstance affecting international relations that threatens to disturb international peace or the good understanding between nations on which peace depends This provision reinforces the obligation of members to promptly communicate potential threats to global stability, ensuring collective action to preserve and uphold peaceful international relations.
The Covenant of the League of Nations established an Assembly that included representatives of all Members and a Secretary-General whose functions were comparable to those of the later United Nations Secretary-General Members agreed to resolve disputes by arbitration, judicial settlement, or by decisions of the Council or the Assembly If a Member resorted to war in disregard of these covenants, it was ipso facto deemed to have committed an act of war against all other Members, triggering economic and potentially military sanctions if recommended by the Council The offending Member could not invoke treaties it had not registered with the League, and the Assembly was charged with examining registered agreements for risks to peace The Covenant was silent on what actions to take if the Council did not recommend action, or if it did and Members failed to comply.
The similarity to articles 1(1) and 2(4) of the Charter in Covenant articles 10 and 11 regarding threats to the peace or threats against any state are noteworthy:
Article 1 The Purposes of the United Nations are:
To uphold international peace and security, nations must undertake effective collective measures to prevent and remove threats to the peace and to suppress acts of aggression or other breaches of the peace.
Article 2 The Organisation and its Members, in pursuit of the purposes in Article 1, shall act in accordance with the following principles:
Member states must refrain in their international relations from threatening or using force against the territorial integrity or political independence of any state, and from any other actions inconsistent with the purposes of the United Nations.
106 LEAGUE OF NATIONS COVENANT art 11.
107 Id arts 3, 6, 11 See also U.N CHARTER arts 97-101; GooDRIcH ET AL., supra note
5, ch 15; WALeRS, supra note 99, at 44-47, 49.
108 LEAGUE OF NArnONS COVENANT arts 12-13, 15 See also WATRS, supra note 99, at 49-53.
109 LEAGUE OF NAIONS CoVENANT arts 16(1)-16(2) See also WALaES, supra note
Articles 18–19 of the League of Nations Covenant signify a break with the secrecy that had often surrounded treaty terms in the previous era, favoring greater transparency in international agreements This shift toward openness emphasizes public scrutiny and accountability, contrasting with the confidential nature of earlier treaties For additional context, see WAERS, supra note 99, at 54–55; supra note 62 and accompanying text.
111 U.N CHARTER arts 1(1), 2(4) Cf LEAGUE OF NA-nONS COVENANT arts 10-11
Besides protecting Members' territorial integrity against external aggression, Covenant Article 10 also addresses threats or dangers of such aggression Under Article 11(1), war or the threat of war—whether immediately affecting a Member—becomes a League concern, and the League may take any action it deems wise and effective to safeguard the peace of nations Article 11(2) allows a Member to raise any circumstance affecting international relations that threatens to disturb international peace.
The Covenant drafters envisioned more than mere declarations of war; like the Charter drafted a quarter-century later, it contemplated action against threats or dangers of aggression—any circumstance that could disturb international peace Article 16(1) establishes that a Member resorting to war in violation of Covenant obligations would automatically be deemed an act of war against all other Members.
I "116 Under treaty interpretation canons, 117 the Covenant, weak as it was in terms of enforcement, contemplated collective action to counter hos- tile intent and hostile action.
Although the Covenant did not address individual or collective self-defense, the Treaty of Versailles barred Germany from fortifying sections of the Rhine and prohibited permanent or temporary armed forces or mobilization works there; violations would be treated as a hostile act against the signatory powers and as an action likely to disturb world peace, signaling the possibility of anticipatory collective self-defense This interpretation is reinforced by unratified bilateral agreements between France and the United States and between France and Great Britain, which obliged Britain and the United States to come to France’s aid immediately if Germany attacked.
112 LEAGUE Op NATIONS CovENAN art 10.
Locarno, the Pact of Paris, the Budapest Articles, and
In 1925, five powers - Belgium, France, Germany, Great Britain, and Italy
Signed as part of the Locarno treaties, Belgium–Germany and France–Germany pledged not to attack or invade one another or resort to war, laying the groundwork for a system of collective security in post–World War I Europe The core Treaty of Mutual Guarantee allowed two exceptions: legitimate defense and action by the parties to settle a conflict or stop an aggressor if the League of Nations did not act Legitimate defense was defined as resisting a violation of the undertaking—not initiating attacks—and as resisting a flagrant breach of the Versailles demilitarization provisions only if such breach constitutes an unprovoked act of aggression and immediate action is necessary due to the assembly of armed forces in the demilitarized zone The Locarno accords also created a framework resembling collective self-defense, with the parties pledging to guarantee each other’s security collectively and severally.
Locarno preserved the territorial status quo by reaffirming the Versailles‑defined frontiers between Germany and Belgium and between Germany and France, and by guaranteeing the inviolability of those frontiers The signatory states agreed to offer immediate assistance to the target state in the event of aggression To the extent that Locarno obliged collective action against clear breaches of the Versailles Treaty, it can be read as an early form of anticipatory collective self‑defense, since failing to maintain a demilitarized zone or demilitarized status could be viewed as a threat to other states These positions are articulated in government submissions and League of Nations records from 1931 and earlier, and have been analyzed in scholarly works such as Alexandrov.
129 See KAGAN, supra note 22, at 307; WAL.rms, supra note 99, at 223-27, 267-76, 283-85, 288, 291, 362, 384, 710.
130 See infra notes 136-52, 238-48 and accompanying text.
131 Locarno Treaty, supra note 126, art 2, 54 L.N.T.S at 293 See also ALExANDROV, supra note 1, at 44-47; Bow-rr, supra note 1, at 127-29; KAGAN, supra note 22, at 308-15,
335, 355-57, 378; WALr-as, supra note 99, at 285-94, 692-98 (German denunciation of Locarno, 1936); C.G Fenwick, The Progress of Cooperative Defense, 24 Am J INT'L L.
France concluded guarantee treaties of the old type with Czechoslovakia and Poland in addition to signing the Locarno Treaties, illustrating the era’s blend of traditional security commitments and new diplomatic arrangements C G Fenwick's The Legal Significance of the Locarno Agreements analyzes how these treaties impacted international law and security expectations Finch notes the failure of the multilateral 1924 Treaty of Mutual Assistance, underscoring the fragility of collective security in interwar Europe Meanwhile, Quincy Wright’s analysis of The Munich crisis provides a critical examination of how diplomacy, guarantees, and power politics shaped the events leading to World War II.
Settlement and International Law, 33 AM J INT'L L 12, 18 (1939) (German denunciation of Locarno).
133 Locarno Treaty, supra note 126, art 1, 54 L.N.T.S at 293.
Under the Locarno framework, a party alleging a violation had to bring the case to the League of Nations, as stipulated by Article 4 and Article 54 of the League of Nations Treaty Series (L.N.T.S 293) The process envisioned collective action among states Although only five states were formal parties to Locarno, when their colonial empires and associated states are included, Locarno’s territorial scope was nonetheless quite large.
Parties to the 1928 Pact of Paris, commonly known as the Kellogg–Briand Pact, renounced war as an instrument of national policy and pledged to settle disputes by pacific means Although largely superseded by the United Nations Charter, the pact remains in force, with sixty-nine signatories by 1997 and treaty-succession principles potentially extending its reach to additional states Its core principles were integrated into the Nuremberg Charter and Judgment and were later affirmed as customary international law by United Nations General Assembly Resolution 95(1) While the pact did not address self-defense, an understanding promoted by the United States and endorsed by fourteen major powers provided a framework relevant to that issue.
Article 9 of the treaty expressly exempts the British Dominions and India from any obligations unless they provide assent, highlighting a consent-based limitation on treaty applicability The text, however, does not address the extensive possessions of Belgium, France, or Italy, nor does it cover other British colonies For guidance on how consent and scope affect treaty applicability, see the Vienna Convention, Article 29.
Waters, in chapter 24 of supra note 99, analyzes the Locarno Treaties within the Covenant framework, and notes that Germany ended the arrangement in 1936 by denouncing the Treaty; additional discussion is found in Waters, supra, pp 692–698, and in Wright, The Munich, supra note 131.
The Pact of Paris (the Briand-Kellogg Pact) is set out in Articles 1–2 and appears in the official record at 46 Stat 2345–46 and 94 L.N.T.S 63, with its negotiating history examined by Ferrell (see supra note 47, 66–191) and by David Hunter Miller in The Peace Pact of Paris: A Study of the Briand-Kellogg Treaty (1928) It has been suggested that French Foreign Minister Aristide Briand, while reading Carl von Clausewitz’s On War (as edited and translated by Michael Howard & Peter Paret, 1976), may have drawn inspiration for the Pact Ferrell, supra, at 66.
137 U.N CHARTER art 103 See also Vienna Convention, supra note 100, art 30(1),
1155 U.N.T.S at 339; RESTATEMENT (THIRD), supra note 62, § 102 cmt h, 323 cmt b; SINCLAIR, supra note 100, at 94-98, 184-85.
138 UNITED STATES DEPARTMENT OF STATE, TREA-nES IN FORCE 430-31 (1997) [hereinaf- ter TIFI.
139 See generally Symposium, State Succession in the Former Soviet Union and in East- ern Europe, 33 VA J INT'L L 253 (1993); Walker, Integration and Disintegration, supra note 51, at 43.
The Agreement for Prosecution and Punishment of Major War Criminals of the European Axis, signed on August 8, 1945, establishes the framework for prosecuting and punishing the major war criminals and cites Article 2 together with the related statutory references (59 Stat 1544-1545; 82 U.N.T.S 280, 282) It annexes the Charter of the International Military Tribunal, including Article 6 and the associated statutory citations (59 Stat 1546-1547; 82 U.N.T.S 286-288), and this instrument is commonly referred to as the Nuremberg Charter.
141 United States v Goering, 1 Tr Maj War Crim Before Int'l M Trib 171, 218-22
(1947), 41 Am J INT'L L 172, 216 (1947) [hereinafter Nuremberg Judgment] See also McDOUGAL & FELICIANO, supra note 1, at 531, 533.
142 G.A Res 95(1), U.N GAOR, 1st Sess., U.N Doc A/236, at 1144 (1946) The International Law Commission reiterated principles of the Pact, the Judgment, and the Resolution See International Law Commission, Formulation of the Nurnberg Principles,
The 1950 Yearbook of the International Law Commission (2 Y.B INT’L L COMM’N 193, 195), with discussion in notes 238–248 and the accompanying text, provides further analysis of the war crimes trials and the 1946 Assembly resolution Oppenheim, in § 52fh, at 183, states that resort to war is lawful between Pact parties and non-parties, and presumably even between two states that are not Pact parties However, as noted in supra notes 139–41 and infra notes 238–48, and the accompanying text, this claim is dubious today because principles of treaty succession and the acceptance of Pact principles as a general customary norm undermine the notion that war between non-Pact states can be considered lawful.
143 Multilateral Treaty for Renunciation of War: Identic Notes of the Government of the United States to the Governments of Australia, et al.,June 23, 1928, 22 AM J INT'L L.
By 1928, signatories including the colonial powers had agreed that the treaty did not impair the inalienable right of self-defense The notes exchanged among these major signatories were understood as an authentic and binding commentary on the treaty’s meaning and interpretation Although the diplomatic correspondence did not specifically reference anticipatory self-defense or collective self-defense, Great Britain nonetheless advanced a broad interpretation, arguing that the treaty did not curtail the inherent prerogatives of self-defense.
Certain regions exist whose welfare and territorial integrity constitute a special and vital interest for our peace and safety The Government has long made it clear that interference with these regions cannot be tolerated Their protection against attack is, for the Empire, a legitimate act of self-defense, and it must be understood that we will take whatever measures are necessary to safeguard them and preserve our security.
Britain accept[s] the new treaty upon the distinct understanding that it does not prejudice their freedom of action in this respect 14 7
Britain referred to its Empire, Egypt, and the Persian Gulf in presenting its position, but a few states objected to the British note For example, the USSR stated that the result would probably be that there would be no place left for the Pact to be applied Since the Commonwealth system included colonies, these objections highlighted the complex implications for how the Pact could operate across different territories.
144 The result was that the Pact applied to most of the Earth's territory Cf Vienna Convention, supra note 100, art 29, 1155 U.N.T.S at 339; supra note 100 and accompa- nying text.
Refer to 1928(1) FoR Rats U.S 107-24 (1942) and the June 20, 1928 telegram from Secretary of State Frank B Kellogg to Ambassador Myron T Herrick in France, as noted in 1928(1) FoR RaLs U.S 90, 91 It is also recorded that Kellogg made nearly verbatim, though unofficial, remarks on April 23, 1928, at the annual meeting of the American Society of International Law, as reflected in the Address of the Honorable Frank B Kellogg, 1928 Proceedings of the American Society of International Law.
L 141, 143 Other contemporaries analyzed the Pact in this context See generally FER- RELL, supra note 47, at 170-191; MILLER, supra note 136, at 83-85, 102, 104, 106, 109,
114, 123, 280; Edwin M Borchard, The Multilateral Treaty for the Renunciation of War,
During the early development of the Pact of Paris, scholarship in the American Journal of International Law (1929) and Henry M Stimson’s 1932 piece The Pact of Paris: Three Years of Development in Foreign Affairs traced the treaty’s evolution, while showing that the Pact and its self-defense reservation were clearly understood by both the international scholarly community and practicing diplomats For further analysis on the scope of the right of self-defense and the duty of non-intervention, see Louis B Sohn’s contribution in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (edited by Yoram Dinstein, 1988).
146 FER LLi, supra note 47, at 193-200; 3 INTERNATIONAL LAw CmEFLY AS INTERPRETED
Other Treaties Concluded Before and During
Defense treaties signed before and during World War II demonstrate the concept of anticipatory collective self-defense, as nations pledged mutual protection to deter aggression The collapse of the League of Nations and its treaty registration and publication system left the record of these agreements fragmented and difficult to verify, complicating historical and legal analysis of early collective security arrangements.
In 1958, the Draft Convention's principles were described as de lege ferenda, indicating they were proposed norms rather than binding law One might wonder whether the same conclusion would have been reached had the relatively full historical record of World War II been available at that time.
Key scholarship on maritime neutrality during the Charter Era includes George K Walker's Maritime Neutrality in the Charter Era, published in the 17th Annual Proceedings of the University of Virginia Center for Oceans Law & Policy (1993), pages 124 and 142–46; for a U.S diplomatic history perspective on Lend-Lease, see Robert E Sherwood's Roosevelt and Hopkins: An Intimate History, chapters 10 and 12 in the 1950 revised edition.
172 Budapest Articles, supra note 169, art 4(c).
175 1 SAMUEL ELIOT MORISON, HISTORY OF UNITED STATES NAvAL OPERATIONS DURING WORLD WAR II: THE BATTLE OF THE ATLANTIc: SEPTEMBER 1939-MAY 1943, at 56-113
On July 11, 1941, President Franklin D Roosevelt tore a map from National Geographic Magazine and drew a line that defined the United States Navy's policing area, extending into the seas east of Greenland and Iceland This improvised boundary helped set the U.S Navy's area of responsibility during a critical pre-war period, guiding Atlantic patrols and security priorities, a fact noted by Sherwood.
171, at 308, 310-11 Executive agreements for protecting Greenland and Iceland had already been signed See infra notes 194, 198-99 and accompanying text.
176 See MORISON, supra note 175, at 56-113.
177 See generally SHERWOOD, supra note 171, at 308, 310-11, which recounts details of the U.K.-U.S arrangement, which was probably informal in nature See also RESTATE-
MENT (THIRD), supra note 62, § 301 cmt b & r.n 4, § 312 r.n 5.
178 See WALTERS, supra note 99, chs 66-67. of international agreements during 1935-45 is not complete What is avail- able supports a view that states believed treaties could provide for anticipa- tory collective self-defense.
The USSR's pacts with France and Czechoslovakia (1935) pledged mutual assistance if either party was subjected to "unprovoked aggression" and consultation if threatened with aggression 1 79 The 1936 treaty with Mongolia followed the same pattern 18 0 When war clouds loomed for the USSR in 1939 and the war had begun for other countries, Soviet treaties with Estonia and Latvia pledged that each would come to the other's assist- ance if there was "direct aggression or threat of aggression" (Estonia), t 8 1 or
"direct attack or threat of attack" (Latvia) i 8 2
Britain and France signed last-minute bilateral mutual defense treaties with Poland that provided for reactive self-defense, and they pledged support and assistance if any European power clearly threatened a party's independence by any action, direct or indirect.
"considered it vital to resist [such action] with its armed forces." 183
Following France and Britain’s entry into the war, they pledged to aid Turkey if it engaged in hostilities with a European power or if aggression against Turkey occurred because of guarantees given to Greece or Romania Turkey agreed to maintain at least a benevolent neutrality if Britain or France were at war with a European power, and would aid them if those guarantees drew Turkey into hostilities The two sides also committed to mutual consultation on these commitments.
The twenty-year USSR-U.K alliance (1942) pledged collective self- defense after the war if these states again became involved in hostilities
179 Treaty of Mutual Assistance, May 2, 1935, Fr.-USSR, arts 1-2, 167 L.N.T.S 395, 404; Treaty of Mutual Assistance, May 16, 1935, Czech.-USSR, arts 1-2, 159 L.N.T.S.
347, 357 See also KAGAN, supra note 22, at 390.
180 Protocol of Mutual Assistance, May 2, 1935, Mong.-USSR, arts 1-2, 140 Brit & For St Pap 666.
181 Pact of Mutual Assistance, Sept 28, 1939, Est.-USSR, art 1, 198 U.N.T.S 223, 228.
The Pact of Mutual Assistance between Latvia and the USSR, signed on October 5, 1939 (Lat.-USSR, art 1, 198 U.N.T.S 381, 386), and a similar agreement the USSR reached with Lithuania on October 10, 1939, were presented as mutual defense pacts However, the real purpose of these agreements lay in provisions that granted the Soviet Union military bases in Latvia and Lithuania, revealing a strategic objective beyond ordinary defense commitments.
183 Agreement of Mutual Assistance, Aug 25, 1939, Pol.-U.K., art 2, 199 L.N.T.S.
On August 25, 1939, Poland and the United Kingdom signed a secret protocol (Articles 1–2) that defined the agreement’s purpose as defense against Germany, extended the contracting parties to include the Free City of Danzig, and envisaged the inclusion of Belgium, Estonia, Latvia, Lithuania, and the Netherlands once mutual‑assistance pacts with those states were concluded A separate Protocol of Mutual Assistance followed on September 4, 1939.
In 1939, Article 1 of the Franco-Polish agreement, reprinted in Grenville at page 192, employed language akin to the Poland–United Kingdom agreement but, as research indicates, did not attach a secret protocol For further context, see Churchill, The Second World War, 397 (1948); Grenville, 178–79; and Walters, 798–99.
184 Treaty of Mutual Assistance, Oct 15, 1939, Fr.-Turk.-U.K., 200 L.N.T.S 167 See also 1 CHURCHILL, supra note 183, at 551, 703 (explaining Turkey's fear of a Soviet attack); GRENVILLE, supra note 125, at 179-80.
185 Treaty of Mutual Assistance, supra note 184, art 4, at 171.
Id arts 1–7, at 169–171, describe alliance terms with Germany or states associated with it; France's alliance with the USSR had similar terms; and a USSR–UK alliance with Iran pledged to defend Iran from "all aggression on the part of Germany," presumably contemplating only reactive self-defense.
In the Western Hemisphere, the 1939 Declaration of Panama, 190 nego- tiated while the American states were not at war, asserted that:
To safeguard continental self-protection, the American Republics—so long as they remain neutral—have an inherent right to the waters adjacent to the American continent that they deem essential to their security and direct utility in their relations These waters must be free from any hostile act by non-American belligerents, whether such acts are attempted or carried out from land, sea, or air.
The Declaration applied its standards to a 300-mile zone off the American coasts Although this territorial belt may have exceeded lawful bounds by not maintaining proportionality, the key takeaway for this analysis is that the Declaration asserted a collective entitlement to be free from the effects of attempted hostile acts In doing so, the Declaration implicitly recognized a right to anticipatory collective self-defense.
A 1941 Denmark-U.S agreement for defending Greenland could also be said to be anticipatory in nature 194 This treaty reaffirmed the existence
The May 26, 1942 Treaty of Alliance between the United Kingdom and the USSR established a formal wartime alliance and mutual assistance against Hitlerite Germany and its European associates, with Articles 3 and 4 detailing the parties’ commitments and recorded in the London Naval Treaty Series as 204 L.N.T.S 353–356 This treaty builds on the earlier July 12, 1941 Agreement Providing for Joint Action in War Against Germany between the U.K and USSR, listed at 204 L.N.T.S 277 Scholarly discussions of these arrangements appear in Churchill’s 1950 writings and Grenville’s analyses, illustrating the diplomatic framework of Allied cooperation during World War II.
188 Treaty of Alliance and Mutual Assistance, Dec 10, 1944, Fr.-USSR, arts 1, 3-4,