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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 4 International transactions, Ch.15 Important groups of treaties, Treaties of Guarantee and of Protection

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Treaties, interpretation

Treaties of Guarantee and of Protection

Bussmann, Der völkerrechtliche Garantievertrag, etc (1927) Freytagh-Loringhoven, Die Regionalverträge (1937) Zietzschmann, Die völkerrechtliche Garantie seit den Locarnoverträgen (1938) Satow, Cambridge Historical Journal, 1 (1925), pp 295–318 Headlam-Morley, ibid, 2 (1927), pp 151–70 Zwaardemaker, ZV, 23 (1939), pp 301–16 McNair, Treaties, pp 239–54 Verzijl, International Law in Historical Perspective, 6 (1973), pp 457–9.

§ 667  Concept and objects of treaties of guarantee

A treaty of guarantee is a treaty whereby one or more states — the guarantor (or guarantors) — undertake an obligation to secure by lawful means a certain object to another party or (p. 1323) parties.1 Guarantee treaties may be mutual or unilateral. They may be concluded by two states only, or by a number of states jointly. In the latter case, the various guarantors may give their guarantee severally, or collectively, or both. The guarantee may be for a certain period of time only, or permanent.

The possible objects of guarantee treaties are numerous, and the following examples may be given: the performance of a particular act on the part of a certain state such as the discharge of a debt2 or the cession of territory; certain rights or duties3 belonging to a state; the undisturbed possession of the whole, or a particular part, of its territory; a particular form of constitution; a certain status, such as permanent neutrality or neutralisation,4 or independence,5 or integrity;6 a particular dynastic succession;7 the fulfilment of a treaty concluded by a third state; or the pacific settlement of disputes.8

To be distinguished from a treaty of guarantee in the strictly legal sense, are treaties which are sometimes loosely referred to as treaties of guarantee even though they do not impose on the ‘guarantor’ state any legally binding commitment to secure the object in question. These ‘guarantees’ are usually of political rather than legal significance. They may be implicit as well as express, and often (p. 1324) come about by the association of the ‘guarantor’ state with the transaction whose purpose and result is to be assured, thereby demonstrating its political commitment even if in legal terms it has not assumed any specific obligation amounting to a guarantee. Such informal guarantees may involve, for example, giving a general indication of approval for the terms of some transaction, acting as a witness to the terms of a settlement, or even becoming a party to the treaty embodying a settlement, although without assuming any specific obligations under it.9

§ 668  Effect of treaties of guarantee

The effect of a guarantee treaty depends upon its terms, but in general they will be such as to impose a duty upon the guarantors to do what is in their power to secure the guaranteed objects. The nature of the compulsion to be applied by a guarantor for that purpose depends upon the circumstances. Any compulsion used must, of course, be consistent with international law; in particular, any question of the use of force must take account of the prohibition upon recourse to threats or use of force, which is subject only to limited exceptions, such as the right of self-defence.

It is not always easy to establish what events bring the guarantee into operation. Nor, where there are several guarantors, is the extent of their individual obligations always clear. In the case of a collective guarantee,1 one of the (p. 1325) guarantors alone cannot be considered bound to act according to the treaty of guarantee, for the guarantee is only collective if it means that the guarantors should act in a body, but if one of the guarantors itself violates the object of its own guarantee — or perhaps merely refuses to act on the guarantee — the body of the guarantors remain, and are not relieved of their duty as guarantors.2 If, however, the majority,3 and therefore the body of the guarantors, violate the very object of their guarantee, the duty to act against them would not accrue to the minority,4 but where a number of states have given a collective and several guarantee, they have an individual as well as a collective duty to guarantee the object in question.5

Footnotes:

Note also guarantees given by states or (international organisations) in relation to such matters as investments or loans. See § 407, n 8, as to investment guarantees; Meron, Investment Insurance in International Law (1976); and, as to loan and guarantee arrangements by the IBRD, see Broches, Hag R, 98 (1959), ii, pp 339–73.

See Meyer-Balding, ZI, 26 (1916), pp 387–426, and the literature there quoted.

As to the guarantees by the League of Nations of the ‘minorities clauses’ in certain treaties concluded after the First World War, see §§ 426–7.

See § 96. See also the Convention of 10 October 1921 (LNTS, 9, p 212; TS No 6 (1922); AJ, 17 (1923), Suppl, pp 1–6) between ten states regarding the non-fortification and neutralisation of the Aaland Islands, and in particular Art 7 as to utilising the machinery of the League for giving effect to the guarantee; see Charles de Visscher, RI, 3rd series, 2 (1921), pp 580–85; vol ii of 7th ed of this work, § 72 (8); Modeen, ZöV, 37 (1977), pp 604–18; and Strupp, Wört, i, p 22, for bibliography.

Thus the UK, France and Russia by the Treaty with Greece of 13 July 1863, guaranteed Greece as ‘a monarchical, independent, and constitutional State’ (Martens, NRG, 16, pt ii, p 79); § 131, n 40. For the bearing of this Treaty upon the action of the Allies in regard to Greece during the First World War see 8th ed of this work, p 965, n 4.

The USA guaranteed the independence of Cuba by the Treaty of Havana of 22 May 1903 (Martens, NRG, 2nd series, 32, p 79); of Panama by the Treaty of Washington of 18 November 1903 (Martens, NRG, 2nd series, 31, p 599); and of Haiti by Art 14 of the Treaty of Port-au-Prince of 16 September 1915 (see AJ, 10 (1916), Suppl, p 234).

In 1961, Greece, Turkey and the UK guaranteed ‘the independence, territorial integrity and security’ of Cyprus: TS No 5 (1961). See Lavroff, RG, 65 (1961), pp 527–45. For the events of 1974–75 which led to the invasion and occupation of part of Cyprus by Turkish forces and in which the Treaty of Guarantee was invoked, see § 55, n 15.

Thus the integrity of Norway was guaranteed by the UK, Germany, France, and Russia by the Treaty of Christiania of 2 November 1907 (see Martens, NRG, 3rd series, 1, pp 14, and 2, p 9), a condition of this integrity being that Norway did not cede any part of its territory to any foreign Power (see Morgenstierne, LQR, 31 (1905), pp 389–96). However, by a note of 8 January 1924, addressed to three of the guarantors, Norway denounced this treaty, on the grounds (it is understood) of its incompatibility with its obligations under the Covenant of the League (see RG, 31 (1924), p 299, and LNTS, 23, p 64). In the Peace Treaty with Italy of 1946 the parties agreed that the integrity and independence of the Free Territory of Trieste shall be assured by the Security Council of the UN (Art 21 of the Treaty and Art 2 of the Permanent Statute of the Territory).

See § 131, nn 39, 40.

See § 668, n 5.

Thus, an undertaking by a third state ‘to respect’ a settlement, or a state of affairs established by or recorded in a treaty, does not amount to an obligation to guarantee that settlement or state of affairs against unwanted change, but only involves an obligation by that state not to take destabilising action itself. However, such an undertaking will often suffice to establish that state’s political backing for the settlement or state of affairs, and may in practice secure its protection. See, eg the Final Declaration of the 1954 Geneva Conference on Indo-China (see § 40, n 54); Art 2 of the Austrian State Treaty 1955 (see § 98); the 1962 Declaration on the Neutrality of Laos (see § 96, n 9); the 1973 Act of the International Conference on Vietnam (see § 40, nn 57, 58); and the 1988 Declaration on International Guarantees concluded between the USA and USSR in the context of a settlement of problems arising out of the USSR’s intervention in Afghanistan (see § 130, n 14, para 2). All of these involved undertakings falling some way short of a guarantee in the legal sense of the term.

Similar are treaties which merely declare the policy of the parties with regard to the maintenance of a territorial status quo. Such treaties do not establish any legal obligation to preserve the status quo, or to pursue policies to that end, but only state the parties’ firm resolution to that end. Examples of such treaties include two sets of declarations which were of considerable diplomatic importance before the First World War: (1) The declarations (see Martens, NRG, 2nd series, 35, p 692, and 3rd series, 1, p 3) exchanged on 16 May 1907, between France and Spain on the one hand, and, on the other hand, between the UK and Spain, concerning the territorial status quo in the Mediterranean. (2) The declarations (see Martens, NRG, 3rd series, 1, pp 17, 18) concerning the maintenance of the territorial status quo in the North Sea, signed at Berlin on 23 April 1908, by the UK, Germany, Denmark, France, Holland and Sweden, and concerning the maintenance of the territorial status quo in the Baltic, signed at St Petersburg, on the same date, by Germany, Denmark, Russia and Sweden.

See also a declaration as to the status quo in the Pacific Ocean, namely, the Quadruple Pacific Treaty of 13 December 1921, between the USA, the British Empire, France, and Japan; TS No 6 (1924), and AJ, 16 (1922), Suppl, pp 60–64; and the Political Agreement between France and Poland of 19 February 1921, LNTS, 18, p 11.

The mere fact that a number of states guarantee a certain object to another state in one and the same treaty does not make the guarantee a collective guarantee; for a guarantee is collective only when it is expressly stated to be so, by the use of the terms ‘collective’ or ‘joint’ or the like.

The contrary was maintained by the UK in 1867 in connection with the collective guarantees of Luxembourg’s neutrality, and apparently reaffirmed in 1914: Parliamentary Debates, vol 188, cols 968–74; see Sanger and Norton, England’s Guarantee of Belgium and Luxembourg (1915), pp 77–90; Satow, International Congresses (Foreign Office Peace Handbook) (1920), pp 134–40. Satow examines the matter in Cambridge Historical Journal, 1 (1925), pp 295–318. The view maintained by the UK on those occasions has been criticised: see Hall, § 113; Bluntschli, § 440; Quabbe, Die völkerrechtliche Garantie (1911), pp 149–59; and Hatschek, pp 257, 258. See also McNair, Treaties, pp 241–4.

See against this statement, Quabbe, Die völkerrechtliche Garantie (1911), p 158.

See Annuaire, 25 (1912), p 638.

An attack against a state whose independence has been guaranteed by another state may constitute an act of war against the guarantor state: see Thomas v Metropolitan Life Insurance Co, ILR, 26 (1958–II), p 635.

The so-called ‘Locarno Pact’ proved of considerable importance in the history of Europe after the First World War, and special reference may therefore be made to the part of the Pact containing the Treaty of Mutual Guarantee concluded between the UK, Belgium, France, Germany and Italy, dated 16 October 1925. In that Treaty all the parties ‘collectively and severally guarantee … the maintenance of the status quo resulting from the frontiers between Germany and Belgium, and between Germany and France, and the inviolability of the said frontiers …’; further, Germany and Belgium, and also Germany and France, mutually undertook ‘that they will in no case attack or invade each other or resort to war against each other’ (apart from certain excluded circumstances); further, Germany and Belgium, and Germany and France, undertook definite obligations with regard to the pacific settlement of disputes that might arise between them (see vol II of 7th ed of this work, § 25ai). The mutual renunciation of resort to armed force and the undertaking as to the peaceful settlement of disputes were also placed under the guarantee of all the contracting parties (Arts 4 and 5), and the Council of the League was made the arbiter of the question whether or not there had been a breach of the mutual renunciation of resort to armed force (Art 4). The Treaty was to remain in force until a year after the Council, by at least a two-thirds majority, ‘decides that the League of Nations ensures sufficient protection’ to the parties (Art 8). On 7 March 1936, Germany in effect denounced the Treaty on the ground that the Treaty of Mutual Assistance, concluded on 2 May 1935, between France and USSR was incompatible with the obligations of the Treaty of Locarno: TS No 28 (1926), and Parliamentary Paper, Misc No 11 (1925), Cmnd 2525; AJ, 20 (1926), Suppl, pp 21–33; LNTS, 54, p 289; Macartney, Survey, 1925, ii, 1–66, 439–52. See also Toynbee, Survey (1924), pp 1–64; Fauchille, §§ 893 (1)–893 (8); Strupp, Das Werk von Locarno (1926); Wehberg, Die Sicherheitspakte (1926); Bisschop, Grotius Society, 12 (1926), pp 79–112; Locarno, Eine Dokumentensammlung, ed Berber (1936); and literature cited in vol II of 7th ed of this work, at § 25ai.