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The Final Act of the London Conference on Germany
Published online by Cambridge University Press: 30 March 2017
Extract
As Chairman of the Washington Conference on the Limitation of Armament, Secretary of State Charles Evans Hughes had occasion to observe that “certain of the resolutions … adopted by the Conference are put in treaty form. … In other cases, the resolutions are of a character not requiring such sanction in the form of a treaty, and are deemed to be binding upon the Powers according to their tenor when adopted by the Conference.” Problems of a comparable nature arise with reference to the obligatory force and juridical effect in international law of “decisions,” “agreements” and “arrangements” set forth in the Final Act of the London Conference of 1954 on Germany.
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- Copyright © American Society of International Law 1955
References
1 Sixth plenary session, Feb. 4, 1922. See Conference on the Limitation of Armament, Washington, November 12, 1921—February 6, 1922 (Washington, G. P. O., 1922), p. 286. See also Wilcox, Francis O., The Ratification of International Conventions (London, 1935), pp. 263–267 Google Scholar.
2 See London and Paris Agreements, September–October 1954 (Department of State Pub. 5659, International Organization and Conference Series II (European and British Commonwealth), 5), pp. 9–29, including annexes; also published as Agreement on Restoration of German Sovereignty and German Association with Western Defense System: Final Act of the Nine-Power Conference held at London, September 28–October 3, in Department of State Bulletin, Vol. 31, No. 798 (Oct. 11, 1954), pp. 515–530. The nine states participating in the London Conference were: Belgium, Canada, France, German Federal Republic, Italy, Luxembourg, Netherlands, United Kingdom and United States.
3 London and Paris Agreements, 1954, op. cit., p. 9.
4 Ibid., p. 18.
5 British and Foreign State Papers, 1814–1815 (cited as B.…F.S.P.), Vol. 2, pp. 3 ff.
6 Ibid., p. 54.
7 Ibid., pp. 56 ff.
8 Sir Ernest Satow, A Guide to Diplomatic Practice (1917), Vol. II, p. 213, states that “it was, in fact, spoken of as the Acte Final, until in the course of the ninth protocol, of February 23, its designation was changed.” For text of the General Act of Berlin, see 70 B.…F.S.P. 4 ff.
9 82 B.….F.S.P.. 55 ff.
10 Satow, op. cit., p. 214.
11 See English translations of the original French text in Carnegie Endowment for International Peace, The Proceedings of the Hague Peace Conferences, Translation of the Official Texts: The Conference of 1907, Vol. I (1920), pp. 679–696; W. M. Malloy, Treaties, etc., Vol. II (1910), pp. 2369–2385.
12 Cf. Manley O. Hudson, International Legislation, Vol. I (1931), p. xl, note 3: “… It is uncommon to provide for ratification of a Final Act.”
13 For the text of the Final Act of the Hague Codification Conference, see League of Nations Doc. 1930. V. 7; this Journal, Supp., Vol. 24 (1930), pp. 169–191.
14 The curious Final Act of the Sixth International Conference of American States held at Habana in 1928 is no exception. Although it set forth the texts of 11 conventions which provided that they should be signed, only the Spanish version of the Final Act was signed, no signatures being affixed to the conventions themselves. Those conventions which entered into force came into force at varying times through the deposit of ratifications, not through the signing of the Final Act. See Hudson, International Legislation, Vol. IV (1932), pp. 2279–2420; Hackworth, Digest of International Law, Vol. V (1943), p. 44; Harvard Research in International Law, Draft Convention on the Law of Treaties, this Journal, Supp., Vol. 29 (1935), pp. 734–735. Some of the Final Acts of the Pan American Conferences go to ridiculous lengths in reproducing the full texts of as many as one hundred resolutions, the mere enumeration of which in the Final Act would suffice, since they possess no obligatory force.
15 See U.N. Doc. E/155, Final Acts of the International Health Conference held in New York from 19 June to 22 July 1946, pp. 1, 5.
16 Hudson, op. cit., Vol. I, p. xl. See also on the nature of a Final Act, Paul Fauchille, Traité de Droit International Public, Vol. I, Pt. 8 (1926), pp. 245–248; Raoul Genet, Traité de Diplomatic et de Droit Diplomatique, Vol. III (1932), pp. 251–261, 477–485. Satow, op. cit., and Jules Basdevant, “La Conclusion et la Rédaction des Traités et des Instruments Diplomatigues autres que les Traités,” Hague Academy of International Law, Recueil des Cours, Vol. 15 (1926), pp. 615 ff., 628 ff., deal sparingly with the subject. The literature on the subject is generally unrewarding.
17 Harvard Research, loc. cit., p. 720.
18 Department of State Bulletin, Vol. 9, No. 228 (Nov. 6, 1943), pp. 307–311; A Decade of American Foreign Poliey: Basic Documents, 1941–1949, Senate Doc. 123, 81st Cong., 1st Sess. (G.P.O., 1950), pp. 9–14.
19 Department of State Conference Series 79 (1946), Moscow Meeting of Foreign Ministers, December 16–26, 1945, pp. 9–18; A Decade of American Foreign Policy (cited above), pp. 58–66. It is noteworthy that the “Communiqué” and “Report” of this conference were subsequently printed under the rubric “Moscow Agreement, 1945” in the Department of State Treaties and Other International Acts Series as No. 1555.
20 A Decade of American Foreign Policy, pp. 27–34, “The Crimean (Yalta) Conference, February 4–11, 1945, Protocol of Proceedings,” etc. The Leaders’ Agreement regarding Japan, signed at Yalta, Feb. 11, 1945, has also been published by the Department of State as Executive Agreement Series, No. 498.
21 A Decade of American Foreign Policy, pp. 34–50: “The Berlin (Potsdam) Conference, July 17–August 2, 1945, Protocol of the Proceedings, August 1, 1945” (with annexes and a proclamation).
Perhaps—to complete the record—reference should also be made to the signed joint Declarations emanating from the Tehran Conference of 1943 (A Decade of American Foreign Policy, pp. 23–25) and possibly to the unsigned communiqué of June 21, 1949, on the Sixth Meeting of the Council of Foreign Ministers, Paris, May 23 to June 20, 1949 (ibid., pp. 110–112). With reference to the First, Second, Third, Fourth and Fifth Meetings of the Council of Foreign Ministers, no conference documents appear to have been issued (cf. ibid., pp. 51–58, 72–110, for reports on these conferences by American participants).
22 The text of the Final Act of London as published in the New York Times, Oct. 4, 1954, The Times (London), Oct. 4, 1954, and Le Monde (Paris), Oct. 5, 1954, likewise fails to indicate that the instrument was signed or subject to signature.
23 London and Paris Agreements, 1954, p. 10.
24 See the observations of the Permanent Court of International Justice in its Judgment of June 7, 1932, in the Free Zones Case between France and Switzerland: “It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign States from having this object and this effect. The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case: it must be ascertained whether the States which have stipulated in favour of a third State meant to create for that State an actual right which the latter has accepted as such.” P.C.I.J., Ser. A/B, No. 46 (1932), pp. 147–148. Cf. Harvard Research Draft Convention on The Law of Treaties: “Art. 18 (b). If a treaty contains a stipulation which is expressly for the benefit of a State which is not a party or a signatory to the treaty, such State is entitled to claim the benefit of that stipulation so long as the stipulation remains in force between the parties to the treaty.” This Journal, Supp., Vol. 29 (1935), p. 924, with comment, pp. 924–937. See further citations in Herbert W. Briggs, The Law of Nations (2nd ed., 1952), pp. 871–872.
25 Department of State Bulletin, Vol. 31, No. 798 (Oct. 11, 1954), p. 519.
26 London and Paris Agreements, 1954, pp. 63–121.
27 Ibid., p. 65.
28 Ibid., pp. 63–64.
29 Ibid., pp. 57–62, for the text of the Brussels Treaty between Great Britain, Belgium, France, Luxembourg and The Netherlands, signed March 17, 1948; also in this Journal, Supp., Vol. 43 (1949), p. 59.
30 London and Paris Agreements, pp. 10–11.
31 Loc. cit., p. 686, Art. 1 (a).
32 London and Paris Agreements, 1954, p. 38.
33 Ibid., p. 37. This Declaration of the Brussels Treaty Powers records their decision to invite Italy and the Federal Republic of Germany to accede to a modified Brussels Treaty. The Declaration is neither signed nor dated and contains no indication of where it was drawn up or why (since the decision had already been made and recorded in the London Final Act), unless this is the text of the actual invitation.
34 Ibid., pp. 18, 37–56.
35 Ibid., p. 12.
36 Ibid., p. 13.
37 Ibid., pp. 45–50, including annexes.
38 Ibid., pp. 51–56.
39 Ibid., Art. 20.
40 Ibid., pp. 37–42, Art. I.
41 Ibid., p. 40, Art. VI.
42 Ibid., pp. 14–15, and in more extended form in Annex to the London Final Act, ibid., pp. 20–27. Some of the reasons, based upon constitutional law, adduced by Mr. Dulles to explain the inability of the United States to go beyond his statement may appear to be debatable. Ibid., p. 21.
43 Ibid., p. 25.
44 Note, however, the warning made in a British Foreign Office statement of Dec. 24, 1954, when the French National Assembly voted against the rearmament of Germany: “The United Kingdom commitment, offered at the London conference, to maintain British forces on the Continent of Europe depends on the ratification of the Paris agreements by all the parties.” New York Times, Dec. 25, 1954, pp. 1–2. With this may be compared the statement of Secretary of State Dulles on Oct. 4, 1954, upon his return from the London Conference and prior to the Paris Conference: “The United Kingdom has made a momentous long-term commitment of its military forces to the continent of Europe.” Department of State Bulletin, Vol. 31, No. 798 (Oct. 11, 1954), p. 519. On the basis of evidence more ambiguous than that upon which the British commitment rests, the Permanent Court of International Justice held binding a statement of the Norwegian Minister for Foreign Affairs, in its Judgment of April 5, 1933, on The Legal Status of Eastern Greenland. P.C.I.J., Ser. A/B, No. 53 (1933), pp. 22, 71.
45 London and Paris Agreements, 1954, p. 44.
46 See above, p. 157.
47 London and Paris Agreements, 1954, pp. 35–36.
48 Ibid., p. 15. Half a dozen other “agreements to recommend,” set forth in Part IV, are here omitted.
49 Ibid., pp. 16–18. Secretary of State Dulles later referred to these related declarations as “an exchange of declarations.” Department of State Bulletin, Vol. 31, No. 806 (Dee. 6, 1954), p. 853.
50 London and Paris Agreements, 1954, p. 36.
51 No date is indicated.
52 London and Paris Agreements, 1954, pp. 30–31.
53 Comparable obligations with reference to Art. 2 of the Charter were assumed by Japan—likewise not a Member of the United Nations—and other states, by Art. 5 of the Treaty of Peace with Japan, signed at San Francisco, Sept. 8, 1951. T.I.A.S., No. 2490. They were immediately made operative in relation to the Korean situation by an exchange of notes of the same date. Ibid., pp. 171–173; this Journal, Supp., Vol. 46 (1952), pp. 73, 88–90.