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Opinion by Hans Kelsen on the Treaty of Guarantee (1959)

Commissioned by the United Nations in relation to the eligibility of the future Republic of Cyprus
as a Member of the United Nations — 12 May 1959 — marked SECRET

Article IV of the 1960 Treaty of Guarantee reserved to Greece, Turkey and the United Kingdom, where common or concerted action proved impossible, “the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty”. Turkey invoked that provision to justify the invasion of July 1974. Hans Kelsen, the foremost legal theorist of his generation, wrote this opinion for the United Nations while Cypriot independence was still being negotiated — fifteen years before the invasion, and without it in view. He concludes that Article 3 of the Treaty confers no new right on the guarantors, that the Treaty cannot validly be interpreted as permitting armed force, and that Article 103 of the United Nations Charter would prevail over it. The extract begins at paragraph 7, as printed in the book.

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SECRET

7. Article 3 of the Treaty of Guarantee. It is against the background of the above multifarious rights and guarantees that Article 3 of the Treaty must be assessed and analysed. Article 3 provides as follows:

In the event of any breach of the provisions of the present Treaty, Greece, the U.K. and Turkey undertake to consult together with a view to making representations, or taking the necessary steps to ensure observance of those provisions.

In so far as common or concerted action may prove impossible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs established by the present Treaty.

This article is, to some extent, obscure. For example, Article 2 of the Treaty, as already indicated, contains an undertaking by the guarantors relating to the prohibition of activity which was aimed at promoting the partition of Cyprus, or its union with any other State. At first sight, the failure of one of the guarantors to take measures within its power to prohibit activity of the above sort in own territory, might be considered to come within the limit of all of the measures contemplated in Article 3, as that Article refers to a breach of "any of the provisions" of the Treaty. However, from the way in which Article 3 is drafted, in referring first to possible common action by all the guarantors, and by failing to provide for the participation of the Republic of Cyprus in such action in certain circumstances it would appear that the drafters of the Treaty had primarily in mind events occurring in Cyprus, not elsewhere, when Article 3 was drafted, and therefore, the reference in paragraph 2 of Article 3 to the "State of Affairs established by the ... Treaty" should probably be deemed to refer primarily to the state of affairs of Cyprus. It is within this context that Article 3 provides for both joint or several action on the part of the guarantors. Joint action is envisaged after consultations between the guarantors, and may take the form of representations or of "necessary steps" to ensure the observance of the provisions of the Treaty. Individual action is envisaged where common or concerted action is impossible and, in this respect, it is to be noted that the guarantors "reserve" a right to take such action. By use of the word "reserve" it would appear that paragraph 2 of Article 3 of the Treaty is not intended to grant any new rights to the guarantors, but is merely a confirmation of such rights as they might be deemed to possess under other provisions of the Treaty and general international law.

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8. Statement of certain of the questions arising out of Article 3. Apart from the matters just mentioned, a variety of questions may be postulated on the basis of Article 3. This note is primarily concerned with the following:

(i) Is Article 3 valid?

(ii) Can Article 3 be interpreted as granting the guarantors both a joint and several rights to resort to measures of enforcement, including military measures, if a breach of the Treaty occurs? Namely, do the references to "necessary steps" and to taking "action" imply, in the light of the history of certain treaties of guarantee (see the annex to this note), a right to resort to measures, particularly those involving the use of force, or would such a right now be superseded by the Charter of the U.N. and in particular Articles 2(3), 2(4) and 53?

B. Validity of Article 3.

9. The view is stated in the Annex to this note that the conclusion of a treaty of guarantee remains a perfectly proper and valid exercise of treaty powers by a sovereign State. It is pointed out in that Annex and the Security Council has itself agreed to assume the responsibilities and rights of a guarantor. It is as proper and valid to accept guarantees as to otter them. In this sense they ma e regarded as a sign of good faith. Article 2(1) of the Charter provides that the U.N. "is based on the principle of the sovereign equality of all its Members"

, and, therefore the Charter places no automatic limitation on the free

offer and acceptance of guarantees which represent a commonly accepted feature of international law.

10. However, there can be no doubt, that the Charter imposes upon the Members certain obligations which effect legal rights previously existing under international law in relation to action permissible to enforce treaty rights and. Which also bear upon the obligations undertaken in treaties. The Charter takes precedence over all other treaties, Article 103 provides that:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the Charter shall prevail.

It appears to be the generally accepted view that this Article relates not only to treaties concluded prior to the Charter, but also to subsequent treaties, even those to which one party is not a Member of the U.N.4

11. If it is for the moment assumed that the Charter forbids armed intervention, pursuant to alleged treaty rights, by individual States in the internal affairs of another State, and it is further assumed that Article 3 of the Treaty of Guarantee purports to grant a right of armed intervention to the guarantors, it 4 See, for example, Goodrich and Hambro, Charter of the UN (Second and Revised Edition, Boston 1949), pp. 517-519, Kelsen, The law of the UN (NY, 1950), PP. 111-118, Bentwich & Martin, A Commentary on the Charter of the UN (London, 1950), pp. 179-180.

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would appear that Article 103 of the Charter would prevail over Article 3 of the Treaty of Guarantee. It would not render that Article invalid (which would probably have been the case under Article 20 of the Covenant of the League of Nations) but would instead restrict the rights of the guarantors to measures, short of armed intervention, which are permissible under the Charter. Armed intervention is not the only means for enforcing a guarantee.

C. Use of force and the Treaty of Guarantee.

12. Article 3 of the Treaty of Guarantee does not explicitly confer on the guarantors any right to take armed action in the event of a breach of the provisions of the Treaty. However, as already pointed out, the references in that Article to "necessary steps" and "action" might be interpreted by some as implying that military measures are permissible by one or more of the guarantors in certain circumstances.

13. Now that the implications just stated can be regarded as legally permissible, it is necessary, first of all, to have an analysis of the circumstances in which consideration might be given to resort to armed force. Broadly speaking, there appear to be two sets of such circumstances. First, a situation might arise where the independence, territorial integrity or security of the Republic of Cyprus is threatened by invasion from a third power. Second, the independence and territorial integrity, and the basic articles of the constitution might be threatened by revolutionary activity, on the island of Cyprus, aimed at overthrowing the constitution, or establishing partition, or union with another State. These two sets of circumstances will be considered separately.

(a) Attack by a third Power.

14. Greece, the U.K. and Turkey have guaranteed the independence, territoria integrity and security of Cyprus. It would therefore appear to be their duty, primarily under article 2 of the Treaty, (although Article 3 may also be argued to be relevant in this context) to come to the aid of Cyprus if it is attacked by another Power. The assumption of such a duty is not inconsistent with the 5 Article 20 of the Covenant reads as follows:

1. The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof.

2. In case any Member of the League shall, before becoming a Member of the League, have undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations.

Article 3 refers to a "breach of the provisions of the ... Treaty". A third Power invading Cyprus would not "breach" a Treaty to which it was not a party. However, the circumstances resulting from such an invasion might be deemed to give rise to a breach of the Treaty (e.g. the inability of Cyprus to maintain its independence), Article 3 then becoming relevant.

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Charter. In this respect reliance may be placed upon Article 51 which provides that:

Nothing in the present Charter shall impair the inherent right of individual or collective self-dependence if an armed attack occurs against a Member of the U.N., until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise o this right of self-defence shall be immediately reported to the Security Council and shall not in any way effect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary, in order to maintain or restore international peace and security. Even if a very narrow interpretation of Article 51 is taken, and an

armed attack were to occur on Cyprus before its admission to the U.N. the presence of Greek, U.K. and Turkish troops stationed on the island, as envisaged under the London Agreement, would permit of the argument that an attack on Cyprus constituted an attack on these States.

15. In as far as the right of self-defence may be invoked, in the case of attack by a third Power, it should be pointed out that this right is derived from general international law and does not depend for its validity on the terms or status of the Treaty of Guarantee.

(b) Revolution on Cyprus.

16. Article 3 of the Treaty of Guarantee would seem, both in the light of its terms and of the circumstances in which it was drafted, to be intended to deal primarily with the situation which might arise if the constitution of Cyprus were overthrown by internal revolution aimed at either limiting minority rights or at union with another State, or at partition. If the guarantors were then to take action of a military character it might, in certain circumstances, be justifiable as self-defence. Those circumstances would arise, if, in the course of a revolution, an armed attack were made on the troops of any one or more of the guarantors stationed on Cyprus. As already pointed out, however, the right of selt-defence does not depend on the Treaty of Guarantee, it arises from general international law as confirmed and to some extent limited by Article 51 of 17. The legal situation is more complex if the disturbances on Cyprus, while the Charter.

tending to upset the state of affairs created by the Treaty, do not lead to an attack on the troops of any of the guaranteeing Powers. At this particular point paragraphs 3 and 4 of Article 2 of the Charter become the governing legal considerations. Article 53 of the Charter may also be relevant in this respect, and 18. Chapter VIII of the Charter, in which article 53 falls, deals with regional will be briefly examined before Article 2, paragraph 3 and 4.

arrangements, Article 53 provides for the utilization of such arrangements for enforcement action by the Security Council. It provides, further that "no enforcement action shall be taken under regional arrangements or by regional

", subject to cer-

tain exceptions not applicable in the case of Cyprus. It could be argued that agencies without the authorization of the Security Council...

the Treaty of Guarantee constitutes a regional arrangement although, in this respect, practice is till uncertain as the U.N. has never formally recognized any

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and arrangement as a regional arrangement. However, if it were assumed that the Treaty constituted such an arrangement, enforcement action under Article 3 would presumably require the consent of the Council, unless, perhaps, in certain limited instances of individual action by a guarantor it might be open for that guarantor to argue that action was taken pursuant to a right it possessed under general international law, independent of the

treaty. 19. It should also be pointed out that enforcement action requiring the consent of the Council, in the sense of Article 53, while clearly covering the use of force, may extend even further to cover measures of the nature outlined in Article 41 of the Charter, such as "complete or partial interruption of economic relations and of rail, sea, air, postal, , telegraphic, radio and other means of communication, and the severance of diplomatic relations". It the Treaty of Guarantee constitutes a regional arrangement, therefore, the rights of the guarantors to take enforcement action on their own initiative is probably se verely limited. However, no other instance is known where it has been argued that a simple treaty of Guarantee constitutes a regional arrangement, the agencies most commonly referred to in this respect (such as the Organization of American States and the Arab League) being of a far more elaborate nature with permanent organs established for the pacific settlement of disputes. 20. Whether or not Article 53 applies, it is quite clear that paragraphs 3 and 4 of Article 2 of the Charter are relevant in the circumstances discussed in this section. Article 2(3)

provides that: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are

not endangered Article

2(4) provides: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of

the U.N. 21. A great amount of legal discussion has centered around the interpretation of these Articles, particularly within the context of the definition of aggression. A review of all the various opinions of this subject is beyond the scope of the present note. However, a short summary is necessary of both a restrictive and wide interpretation of these

two Articles. 22. Quincy Wright is an exponent of perhaps the most popular

view. He has defined the concept of aggression, as flowing from Article 2(4), as follows? The use of threat to use armed force across an internationally recognized

frontier, for which a government,

de facto or de jure is responsible because of act 7 Quincy Wright, «The Prevention of Aggression." 50 American Journal of International Law (1959), p. 115.

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or negligence, unless justified by a necessity for individual or collective selfdefence, by the authority of the U.N. to restore international peace and security, or by consent of the state within whose territory armed force is being If this view is considered the correct one, and if the guarantors were to

resort to armed force in Cyprus, the circumstances not involving self-defence or the authority of the U.N., could the Treaty of Guarantee be construed as consent by Cyprus to the use of armed force? The view taken by Quincy Wright would appear to be that consent, in such cases, should be a real consent, given at he time when the intervention takes place and yea government so firmly in control that it can be considered competent to speak for the State in question. According to this construction it would probably be difficult to construe the Treaty of Guarantee as providing a real consent, and Article 3 of the Treaty, to accord with international law today, would have to

be interpreted to confer only rights short of the use of armed force in the circumstances contemplated in this paragraph. 23. A less restricted view of the right to resort to the use of armed force is taken by Stone. He states that:° "Article 2(4) does not forbid 'the threat or use of force simpliciter: it forbids it only when directed 'against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the U.N." By the preceding paragraph 3 of Article2 Members also undertook to "settle their international disputes by peaceful means in such a manner that international

peace and security and justice are not end seged, Bus the suggestion

that this positive injunction of Article 2(3) to settle disputes by peaceful means carried with it so revolutionary

a negative implication as the absolute prohibition of the use of force for the vindication of rights, even when no other means exists, is also dubious. Stone considers that, if the view of Quincy Wright is correct, States might be required to tolerate indefinitely persistent illegalities and injustice by other States. 10 He writes further that:!! Even if the grand design of the U.N. was to substitute collective joint enforcement

and peaceful change for the traditional role of war as a

means (in part at least) of vindicating rights, and effecting adjustments of the status quo so as to secure a tolerable level of justice, are we to say that resort to force has been completely outlined, even when no substitute form of relief is available? Quincy Wright, "U.S. Intervention in Lebanon," op. cit., pp. 119-125. 9 Stone, Aggression and World Order (London, 1958), p. 95. For, in the first place, if Article 2(3) really imported such a blanket prohibition of the use of force, why should the draftsmen have telt it necessary to follow it immediately with a very much more limited prohibition, in Article 2(4), of the

use of force against the territorial integrity and political independence of any State,

etc.? Moreover, in the second place it is not easy to reconcile the blanket prohibition with the words "and justice" in Article 2(3). 10 Stone, op. cit., pp. 78-99. 11 Stone, op. cit., Pp. 100-101. Stone's views here quoted are given with the intervention in mind of Israel, the U.K. and France in Egypt, in 1956.

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It is not believed that such a position makes either moral, political or even legal sense. ... No international organization based on such principles could long possibly survive in the world as it is.... For such an organization could only become a protective shield for those States whose predatory and imperial interests could sufficiently realize themselves without the need for armed attack upon other Members....

If Stone's view is considered correct a resort to armed force by the

guarantors, in the circumstances presently under discussion, might be deemed a lawful vindication of rights. However, to meet the requirements of his view, it would appear essential for the guarantors to demonstrate that they had exhausted all the means of pacific settlement available to them, including but not necessarily limited to recourse to the U.N., before a resort to armed force might be legally justified. In any event, it is doubtful whether Stone's view accords with the intentions of the founders of the U.N., or the practice of the Organization in which recourse to armed force by one Member against another has usually met with condemnation. Finally, that view has not received any wide support amongst jurists who appear, for the most part, to incline towards the position as defined by Quincy Wright.

24. Revolution has never been prohibited by international law, and the development of that law has been such that it may now be doubted whether a treaty, such as the Treaty of Guarantee, can legally be interpreted as permitting the use of armed force in circumstances not otherwise sanctioned by the Law. It has, furthermore, already been pointed out that Article 3 of the Treaty does not explicitly refer to the use of armed force, weakening even further any purported right of intervention in the circumstances under discussion. Finally, the International Court of Justice, in the Corfu Channel Case, has declared that: 12

The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever the present defects in international organization, find a place in international law.

III. Conclusions.

25. On the basis of the foregoing it is submitted that the Treaty of Guarantee will be a valid international instrument when it comes fully into effect. However, in the present state of the development of the international law, Article 3 of that Treaty cannot validly be interpreted as granting the guarantors an unqualified right to intervene by use of armed force in the event of a breach of the provisions of the Treaty. Such use of force is only justifiable on grounds of self-defence, or under the authority of the U.N., or on the invitation of the State of Cyprus at the relevant time. A right of armed intervention does not arise automatically from the terms of the Treaty and even if the extreme view were adopted that such a right did arise it would be limited by the need, first, 12 Corfu Channel Case, Judgement of April 9th, 1949: I.C.J. Reports 194, p. 4.

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for recourse to the means of pacific settlement available to the States concerned.