Edc 3

The European Defence Community and the Western European Union: An Agonizing
Dilemma
Author(s): Gerhard Bebr
Source: Stanford Law Review , Mar., 1955, Vol. 7, No. 2 (Mar., 1955), pp. 169-236
Published by: Stanford Law Review
Stable URL: https://www.jstor.org/stable/1226391
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The European Defence Community and the
Western European Union: An AgonizIng
Dilemma
GERHARD BEBR*
Prussian militarism must never come to power again. Only a grand

cooperation among the nations of Europe can prepare the ground neces-
sary for her recovery. Any centralized force, like that the Prussian State
attempted to exercise in Germany and Europe, must be strangled in its
inception. . . . Today only a healthy federation of States can invigorate
weakened Europe. . . . Freedom of expression, freedom of religion, and
other guarantees to citizens against arbitrary, criminal, despotic States-
those are the bases for a new Europe.
Excerpts from a pamphlet circulated in 1943 by Die weisse Rose, a

German underground movement.
The chief fact about national sovereignty is twofold: that it defies defi-
nition, and brooks no interference. Or, more subjectively: no one knows
what it is, no one tolerates that it be touched. It is therefore a strong
emotion but a weak idea.
SALVADOR DE MADARIAGA, ESSAYS WITH A PURPOSE 25 (1954).
"The choice before us today is between a rearmament of Ger-

many that we could still supervise, and a rearmament over which
we could have no possible control."' The rejected European De-
fence Community2 was one attempt to achieve controlled rearma-
J.U.D., Charles University, Prague, 1946; LL.M., Yale Law School, 1948; J.S.D.,
Yale Law School, 1951; Visiting Lecturer in Law, Yale Law School.
1. Address by M. Mendes-France, Ambassade de France, Service de Presse et d'Infor-
mation, Speeches and Press Conferences, Aug. 16, 1954, p. 1.
2. For the English text of the Treaty, see OFFICE OF THE UNITED STATES SPECIAL
REPRESENTATIVE IN EUROPE, TREATY ESTABLISHING THE EUROPEAN DEFENSE COMMUNITY
(hereinafter cited as EDC TREATY), together with RELATED PROTOCOLS (hereinafter cited
as EDC PROTOCOL). As the text contained in SEN. EXEC. Doc. No. Q AND R, 82d Cong., 2d
Sess. 167-251 (1952), is slightly deficient, all references will be to the text as published
by the Office of the United States Special Representative in Europe.
The text of the Additional Protocols (hereinafter cited as EDC ADDITIONAL PROTOCOL)
can be found in the British White Paper, The European Defence Community Trcaty, CMD.
No. 9127 (1954).
For the original French version, see MINISTERE DES AFFAIRES tTRANGiRES, LA Docu-
MENTATION FRANgAISE. For a convenient text in French and German, see BUNDESREPUB-
LIK DEUTSCHLAND, BUNDESGESETZBLATT pt. II, at 343 (1954).
Frequent references are made to the following official reports: MINISTERE DES AF-
FAIRES tTRANGkRES, CONFiRENCE POUR L'ORGANISATION D'UNE COMMUNAUTE EUROP?-
ENNE DE DEFENSE, RAPPORT DE LA DELEGATION FRANgAISE AU GOUVERNEMENT [hereinafte
RAPPORT] (1952); ASSEMBLEE NATIONALE, DOCUMENTS PARLEMENTAIRES No. 5404, Ex-
POSE DES MOTIFS [hereinafter DOC. PARL.] (France 1953); CHAMBRE DES REPRESENTANTS,
RAPPORT No. 695, FAIT AU NOM DE LA COMMISSION SPECIALE PAR M. WIGNY [hereinafter
RAPPORT WIGNY] (Belgium 1953); SCHRIFTLICHER BERICHT DES AUSSCHUSSES FUR DA
I69

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170 STANFORD LAW REVIEW [Vol. 7: Page I69
ment; the latest is the Western European Union,3 an

which will supplement NATO. The defunct EDC was an un-
precedented supranational organization pooling the military re-
sources of France, West Germany, Italy, Belgium, the Netherlands
and Luxembourg in a common European Defence Force. The re-
quired delegation of a part of the States' traditionally "sacred"
powers to the Community met strong resistance in France and
was an important factor in the ultimate rejection of the EDC.4
The idea of a supranational organization and a common army has
been abandoned in favor of a more traditional international or-
ganization, the Western European Union, originally formed by
the Brussels Treaty concluded by Britain, France and the Low
Countries as a shield against German aggression.5 The Union has
been expanded by the admission of West Germany and Italy,6
reinforced by the British commitment to maintain some divisions
on the European mainland7 and further modified to assure super-
vision of German rearmament.8 At the same time Germany has
been admitted to NATO.9
This Article has two aims. First it is an attempt to analyze the
Community's supranational powers and institutional safeguards
and to contrast them with the powers of the Western European
Union and its institutions. NATO must also be considered in this
connection since it performs certain military and supervisory func-
tions on behalf of the Union.'0 Precise comparison of the Commu-
nity with the Union is not possible because they are so fundamen-
BESATZUNGSSTATUT UND AUSWXRTIGE ANGELEGENHEITEN, DRUCKSACHEN No. 3501 [herein-

after BERICHT] in VERHANDLUNGEN DES DEUTSCHEN BUNDESTAGES, I. WAHLPERIODE 1949,
STENOGRAPHISCHE BERICHTE BAND 14, at 11 . 161-12.297 (Germany 1953).
3. The text of the Brussels Treaty together with Protocols (hereinafter cited as WEU
TREATY or WEU PRoTocoL) and the related documents of the London and Paris Confer-
ences are published in SEN. EXEC. Doc. No. L AND M, 83d Cong., 2d Sess. (1954), or as
a British White Paper, Documents Agreed on by the Conference of Ministers Held in Paris
October 20-23, 1954, CMD. No. 9304 (1954).
4. Address by M. Mendes-France before the Council of Europe in Strasbourg, Sept. 20,
1954, Ambassade de France, Service de Presse et d'Information, European Affairs, Sept. 27,
1954, p. 2.
5. For a general discussion of the original Brussels Treaty Organization, see HAw-
mY, WESTERN EUROPEAN UNION (1949).
6. PROTOCOL MODIFYING AND COMPLETING THE BRUSSELS TREATY Art. I.
7. WEU PROTOCOL No. II ON FORCES OF WESTERN EUROPEAN UNION Art. 6.
8. WEU PROTOCOL No. III ON THE CONTROL OF ARMAMENTS.
9. PROTOCOL TO THE NORTH ATLANTIC TREATY ON THE ACCEssION OF THE FEDERAL
REPUBLIC OF GERMANY, Oct. 23, 1954, as reproduced in SEN. EXEC. Doc. No. L AND M
83d Cong., 2d Sess. 37-39 (1954). The German Federal Republic became a Member of
NATO on May 6, 1955. N.Y. Times, May 7, 1955, p. 1, col. 1.
10. PROTOCOL MODIFYING AND COMPLETING THE BRUSSELS TREATY Art. III.

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March I955] EDC AND WEU '7'
tally different. A broader contrast see

this Article seeks to evaluate EDC and
ous experiences and existing political,
lems.
POLITICAL AND MILITARY BACKGROUND

The threat of Soviet military might, reinforced as it is b
might of the Soviet satellite system, has forced the Western
to intensify their defence efforts and, despite fear of a revived,
pendent German Wehrmacht, to give increasing attenti
methods of utilizing Germany's armament potential for the
world's defences.
The East-West rift has gradually resulted in a changed att
toward German rearmament and in abandonment of the
of "complete disarmament and demilitarization of Germa
the elimination of all German industry that could be used for
tary production" agreed upon by the former Allies at Potsd
The menace of the Soviet-sponsored Bcreitschaften, a par
tary organization established in Eastern Germany," and t
break of the Korean War required the United States and
Western powers to reappraise their policy toward Germ
German peace treaty was apparently out of the question
scheme for neutralizing Germany was opposed by the W
Powers as inviting Soviet infiltration or even open aggre
Under these circumstances the Foreign Ministers of Fran
United Kingdom and the United States adopted a new t
their relations with Germanv. BY their Declaration of SeDte
11. At several points it will be necessary to refer to the proposals submitte
ill-fated Brussels Conference by Mendes-France, on the one hand, and by the r
signatories of the EDC Treaty on the other; they show most clearly the French
tions to and doubts about the EDC.
For the text of the Joint Communique of the Brussels Conference together
the draft protocol submitted by the French Government (hereinafter cited as
FRANCE PROPOSAL) and the draft declaration proposed in reply to the French p
(hereinafter cited as SPAAK DECLARATION), see NATO, Information Division, NATO
Lctter, Sept. 1, 1954, pp. 21-27.
12. DEPT. STATE, GERMANY 1947-1949: THE STORY IN DOCUMENTS 48 (Pub. No.
3556, European & British Commonwealth Series No. 9, 1950).
13. Senatc Foreign Relations Committee, Tensions Within the Soviet Captive Coun-
tries-Soviqt Zone of Germany, SEN. Doc. No. 70, 83d Cong., 1st Sess., Pt. 3, at 64-65
(1954).
14. This fact is well illustrated by the sober observation of Lester Pearson, Canadian
Secretary of State for External Affairs. He stated, "If it was impossible to keep Germany
neutral and disarmed in the Twenties, how can that be done now, with the victors of the
last war divided and bitterly hostile, and in the face of the control of a rearmed Commu-
nist East Germany by an aggressive and mighty Russian imperialist power?" N.Y. Times,
Sept. 8, 1954, p. 3, cols. 5-8.

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I72 STANFORD LAW REVIEW [Vol. 7: Page I69
I9, I950, they guaranteed to "treat any attack ag

Republic or Berlin from any quarter as an a
selves."'5 In return for this guarantee, the Unit
West Germany should contribute its vital in
power potential to the common defence effort.
integrate the Federal Republic "into the comm
tions"'" and assure its "participation in an integ
defence of European freedom" without re-c
"national" army.'7
Germany's military assistance was approved in
North Atlantic Council,'8 but no clear agreem
to the proper method of integration. West G
direct participation in the North Atlantic Treat
at that time opposed by the French, who feared
a strong German Wehrmacht and of its dread
On the other hand, Germany was unwilling to b
of NATO without the right of full and equal
many's swift economic recovery and steady g
power have since transformed the Federal Repu
object of Allied policy into an active partner of t
West Germany has become sufficiently powerfu
military contributions be dependent on cond
equality-a claim implying the creation of an
man army. To forestall that development yet
of German military assistance the French Go
the Pleven Plan for the formation of a Europ
Plan, which was to become the foundation of
proposed a merger of national armed forces int
army in which Germany would participate on a
15. 23 DEPT. STAT, BULL. 531 (1950). 16. Id. at 530.

17. "The Ministers are fully agreed that the re-creation of a German national army
would not serve the best interests of Germany or Europe." Id. at 531.
18. North Atlantic Council, Resolution of the Fifth Session, Sept. 26, 1950, repro-
duced in NATO HANDBOOK 54-56 (1952).
19. RAPPORT 1.
20. For a full text of the proposal submitted to the French National Assembly on
Oct. 24, 1950, see Ambassade de France, Service de Presse et d'Information, Doc. No. 23,
Oct. 23, 1950. See also RAPPORT 2-3.
In part at least, this proposal was inspired by the recommendation of the Consultative
Assembly of the Council of Europe that the nations of Europe create a European Army
under a European Defence Minister. COUNCIL OF EUROPE, COMPILATION OF RECOMMENDA-
TIONS AND RESOLUTIONs ADOPTED BY THE CONSULTATIVE ASSEMBLY DURING Irs SECOND
SEssIoN pt. I, Recommendation No. 5, at 13 (1950).
21. For further discussion of the developments which led to the EDC proposal, see
Walton, Background for the European Defence Community, 68 POL. SCI. Q. 42-69 (1953).

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March I955] EDC AND WEU I73
other Member States. It provid

tion by Germany without the
Ultimately, however, the French National Assembly rejected
the EDC22 and adopted the solution the French Government had
originally attempted to forestall-the establishment of a German
army. Unquestionably Britain's unwillingness to participate di-
rectly in the Defence Community2" was an important factor in the
defeat of the Treaty. France feared that alone it might be unable
to prevent possible German domination of the Community.24
Valuing direct British participation higher than a common De-
fence Force, France ultimately preferred the Western European
Union-even though the establishment of the Union entailed the
creation of an independent German army. Whether the advan-
tages France expects to derive from direct British participation
will outweigh the political and military disadvantages inherent in
the formation of a German army is a question for speculation. The
moment British participation became assured France wasted few
opportunities to propose that some of the supranational aspects of
the EDC" be incorporated in the WEU. This fact might be inter-
preted as an indirect admission that the Union is not as satisfactory
as it might appear at first glance.
OBJECTIVES AND POWERS
The EDC Treaty provided for a common army and a common

armament program, jointly financed by a common defence
22. The vote was 319 to 264. N.Y. Times, Aug. 31, 1954, p. 1.
23. The British Government, however, did propose a close association with the Com-
munity. For the text of the proposed Agreement, see Memorandum Regarding United
Kingdom Association with the European Defence Community, CMD. No. 9126 (1954).
For further comments, see Bebr, European Defence Community and the North Atlantic
Alliance, 22 GEO. WASH. L. REV. 637, 656-57 (1954).
24. See the address by M. Mendes-France in Strasbourg before the Council of Europe,
Sept. 20, 1954, Ambassade de France, Service de Presse et d'Information, European Affairs,
Sept. 27, 1954, p. 3.
25. The proposal for an arms procurement agency advanced by Mendes-France at
the London Conference is perhaps the best example; see N.Y. Times, Oct. 2, 1954, p. 1,
col. 1; Oct. 3, 1954, p. 5E, cols. 1-2; Oct. 15, 1954, p. 1, cols. 2-3; Jan. 6, 1955, p. 1, col. 4;
Jan. 7, 1955, p. 4, col. 3; Jan. 23, 1955, p. 4E, cols. 1-5. The text of the French proposals
has not been released; the Strasbourg address of Mendes-France, supra note 24, at 5-6, may
convey their basic concept. See also Arguments of Arms, [ 1955] THE ECONOMIST 167-69.
Instead, the Council of the WEU established a mere advisory Standing Armaments Com-
mittee on May 7th to "encourage on a case-by-case basis, agreements or arrangements on
such subjects as the development, standardization, production and procurement of arma-
ments." N.Y. Times, May 8, 1955, p. 6, col. 3. This Committee is composed of repre-
sentatives of each of the Union's Member States and is headed by an Assistant Secretary
of the Union; it will conduct its operations in Paris in order to assure co-ordination of its
activities with those of NATO. Ibid.

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budget.26 The framers proposed to accomplish t

establishing common institutions with some ind
Unquestionably the Treaty would have modif
powers of the Member States over military matt
a considerable measure of those powers to th
the Community's ingenious institutional setup w
Member State enough power to protect its natio
The Brussels Treaty, on the other hand, pursu
tious objectives. It merely provides for rudiment
independent national armed forces and for supe
production,27 both financed almost exclusive
budgets. Most of the military powers rest with
Commander Europe (SACEUR) of NATO, of which the West-
ern European Union is an integral part.28 The modest military
objectives of the Brussels Treaty explain the traditional institu-
tional pattern of the Union and its meager powers.
OBJECTIVES
The formation of a European Political Community was the

long-term objective of the EDC Treaty;29 the organization of West-
ern European defence was, however, its immediate aim. To pro-
mote military and political consolidation the Treaty prohibited the
maintenance or formation of independent national armies.30 A
single European Defence Force was to be substituted for such
armies;31 small basic units of homogeneous nationality, called
"groupements," were to be integrated into army corps of several
nationalities.32 TtIe strength of the basic unit was to depend on
which branch of the armed forces was involved and the types of
subdivisions within that branch. For example, the basic unit of the
army was to contain approximately I3,000 men in peacetime,33
26. EDC TREATY Art. 1.
27. WEU PROTOCOL No. II ON FORCES OF WESTERN EUROPEAN UNION; WEU PROTO-
COL No. III ON THE CONTROL OF ARMAMENTIS.
28. PROTOCOL MODIFYINGJ AND COMPLETING THIE BRUSSELS TREATY Art. III.
29. EDC TREATY Art. 38. Note, however, the reluctance expressed in the MENDES-
FRANCE PROPOSAL ? VII(1).
30. EDC TREATY Art. 9, 1 2.
31. Id.Art.9.
32. Id. Art. 68, ?111 1 and 2. The MENDES-FRANCE PROPOSAL ? IV, 1T 1, attempted to
restrict the integration of units "to the army stationed in the forward zone...." Pr
sumably the proposal meant that only forces stationed in West Germany would have be
integrated.
33. EDC MILITARY PROTOCOL Art. 1. Originally the basic homogeneous unit was to b
a so-called "combat team" of approximately 5,000 men. But the strength of the "team
was progressively increased to that of a division. The reasons were both political an
military. RAPPORT WIGNY 56.

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while the basic air force unit would not have exce
The army corps-composed of three or four basic units-with a
maximum strength of 8o,ooo men would have been the echelon
of integration."5 Its integrated chief of staff would have controlled
the national units and would have been in charge of their tactical
and logistical support. Thus the basic units were to be directly
dependent on the integrated command of the army corps for logis-
tical and tactical support."6
The Brussels Treaty preserves the Members' national armed
forces; accordingly, integration begins at a much higher level.
Unlike the EDC, which provided for tight, interlocking integration
at the very bottom of the military organization, the Paris Resolution
of the North Atlantic Council proposes integration of the Mem-
bers' forces at the level of an army group comprising approximately
200,000 men.37 Such high level integration was allegedly dictated
by considerations relating to military efficiency. But integration of
a German army within the Western European Union at such a
high level appears to weaken control of German rearmament.
In order to strengthen that control the Ministers agreed that in-
tegration is to be carried out within NATO and shall apply to
those armed forces which are stationed on the European Conti-
nent and placed under the command of SACEUR.
The EDC Treaty proposed a unified recruiting policy appli-
cable throughout the Community and based on a uniform census
and classification of citizens of military age.38 The Community was
to direct the organization of military schools for common in-
struction and training.39 It was also the intent that Member States
prepare and enact a single military regulation to which all mem-
34. EDC MILITARY PROTOCOL Art. 2.

35. EDC TREATY Art. 68(2); Doc. PARL. 212; RAPPORT 9.
36. RAPPORT WIGNY 56.
37. RESOLUTION TO IMPLEMENT SECTION IV OF THE FINAL ACT OF THE LONDON CON-
FERENCE CONCERNING THE POWERS OF THE SUPREME ALLIED COMMANDER, EUROPE ?[ 8(a)
(hereinafter cited as NORTH ATLANTIC COUNCIL or simply NAC, PARIS RESOLUTION).
Note, however, that "wherever military efficiency permits, in light of the size, location and
logistic support of forces, integration at lower levels, both in the land and air forces, shall be
achieved to the maximum extent possible...." Id. 1T 8(c).
Some reorganization has been made necessary by the development of atomic warfare.
A plan presently under consideration seems to favor rather small, self-sustaining, but very
mobile forces. See Gruenther, The Defence of Europe: A Progress Report, 31 DEPT. STATE
BULL. 562 (1954); North Atlantic Council, Communique of Dec. 18, 1954, 32 DEPT.
STATE BULL. 11 (1955). See also N.Y. Times, Jan. 22, 1955, p. 4, col. 3. Such a reorgani-
zation would not be without its effect on the level at which integration would be carried
out.
38. EDC TREATY Art. 73(1); EDC MILITARY PROTOCOL Art. 12.
39. EDC TREATY Art. 74(1); EDC MILITARY PROTOCOL Art. 15.

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
bers of the Defence Force would have been subject.40 The plan
for service in a common army built up by a common recruiting
policy was expressive of a desire to establish a closer bond between
the Members' nationals and the Community. The plan would
have reoriented and broadened the citizens' loyalty. Article i6 of
the Military Protocol stated: "Members of the Europ-ean Defence
Force have the same obligations toward the Community and its
command echelons as military personnel of national armies nor-
mally have toward their Government and their own command."
There are no such provisions in the NATO-WEU arrangement;
its framers followed the more traditional lines of international
co-operation. It is not even contemplated that common military
schools will be established,4' a feature of EDC which the French
attempted to preserve.42
A special agreement annexed to the EDC Treaty determined
the maximum military contribution that each Member could make
to the European Defence Force.43 It can be assumed that these
limits could not have been changed without agreement among
all the Members of the Community.44 Independent national armed
forces were prohibited by the Treaty in so far as the defence of
Members' European territories was concerned.45 The Members
were, however, to retain unlimited power to organize and main-
tain armed forces for the defence of their overseas territories.46
Also unaffected by the Treaty was the State's power over police
and gendarmerie. The Community was not empowered to deter-

41. The NATO Defence College does not make up for the deficiency, since it is pri-
marily designed to train individuals who will hold key positions of NATO. "The classes
consist of approximately fifty students per term drawn from officers of the rank of Lt.
Col. (or equivalent) and certain other officials from the NATO countries." NATO HAND-
BOOK 39 (2d ed. 1953). For further details, see Lemonier, Deux ans de College NATO,
18 REVUE DE DEFENSE NATIONALE 515-37 (France 1954).
But the likelihood that there will be common training programs may be enhanced by
construction of joint training facilities for NATO land and air forces built in six European
States and jointly financed as infrastructure programs. NATO, Information Division,
NATO News Letter, January 1954, pp. 14-15.
42. N.Y. Times, Oct. 21, 1954, p. 4, col. 6.
43. This agreement has not been made public. See British White Paper, Docunzents
Agreed on by the Conference of Ministers Held in Paris October 20-23, 1954, CMD. No.
9304, at 37 n.5, and the statement of Sir Anthony Eden, Secretary of State for Foreign
Affairs, in the House of Commons, Nov. 18, 1954, 533 H.C. DEB. (5th ser.) 695 (1954).
44. EDC TREATY Art. 10(5).
45. Id. Art. 9, ?f 2; Art. 120(1).
46. Id. Art. 10(1).
Similarly the Members would have retained the right to recruit and maintain "nation
armed forces required for international missions assumed by them in Berlin, in Austria o
by virtue of a decision of the United Nations." Id. Art. 10(2).

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
March i955] EDC AND WEU 177
mine the strength of police forces

that the strength and character had
limited mission, that of maintaining
Under the Western Europlean Unio
Members' national armed forces is
ment among the Governments.48
North Atlantic Council requires th
the Members of WEU to place thos
Europe under the command of SA
exempt from this commitment are
nated for overseas defence duties an
ignated by NATO as remaining under unrestricted national
command.50 Unlike the EDC, which did not really restrict a
State's power over its police force, the Union also controls "the
internal defence and police forces" of its. Members; the Protocol
on Forces provides that their strength and armament "shall be
fixed by agreements within the . . . Union.""
The Comm-unity was to have exclusive authority to direct the
Defence Force. Some situations were, however, recognized as
justifying a modification or even a suspension of that authority.
Thus a Member could have requested that some of the units it
contributed to the Defence Force be placed at its disposal in order
to facilitate the handling of disturbances or disasters, existing or
threatened in the State's European territory.52 The Member could
even have requested the release of part of its, components to meet
a "serious emergency in its overseas territories" or to carry out an
international mission outside the Community's territory.53 But
the prior consent of NATO's. Supreme Commander would have
47. Id. Art. 11.
48. WEU PROTOCOL No. II Arts. 1, 3; see also NAC, PARIS RESOLUTION ?f 3.
49. Id. fI4.
50. Ibid.
51. WEU PROTOCOL No. II Art. 5. The provision is designed to prevent the building
of illegal armed forces through the device of expanding national police forces, a maneuve
used by Germany to avoid the military control and disarmament clauses of the Versaille
Peace Treaty. For further discussion of such practices, see JORDAN, GREAT BRITAIN, FRANCE
AND THE GERMAN PROBLEM, 1918-1939 137, 143 (1943); TOYNBEE, SURVEY OF INTER-
NATIONAL AFFAIRS, 1920-1923 104-9 (1925); Morgan, Disarmament ot Germany and
After, 242 QUARTERLY REV. 444 (1924).
52. EDC TREATY Art. 12(1). Evidently the consent of the Supreme Allied Com-
mander Europe was not to be required. But see id. Art. 13.
None of the circumstances, of course, could have been elaborately defined. But it may
be assumed that a disturbance which could not have been quelled by the police-e.g., a
large-scale riot-would have justified such a request. Evidently it would have been up to
the Member State to decide whether or not such a situation existed. See RAPPORT WIGNY 58
53. EDC TREATY Arts. 13, 14.

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
178 STANFORD LAW REVIEW [Vol. 7: Page i69
been required since such a release would have affecte

potential of the EDC as well as that of NATO. In t
treaty the character of an emergency, the manner o
nation and the scope of the Supreme Commander's
veto the release of such contingents were dealt with in
terms. The Additional Protocol, initiated by the Fren
ment, merely purported to clarify the Treaty but in
ened the Supreme Commander's position. According to the
Additional Protocol, not only was the existence of an emer-
gency to be determined by the State, but the State was entitled to
request from the Commissariat the immediate release of its contin-
gents, evidently without the Supreme Commander's prior con-
sent.54 At least the Supreme Commander could not have refused
his permission unless he was able to prove that withdrawal of the
troops would have imperiled the Community's security.55 In re-
leasing contingents to a requesting State the Community would
have temporarily suspended its authority over them.
The Brussels Treaty does not deal with these matters at all,
while the North Atlantic Treaty-as implemented by the Paris
Resolution of the North Atlantic Council-prescribes in somewhat
unsatisfactory manner that "forces under the Supreme Allied Com-
mander Europe . . . shall not be . . . used operationally within that
area" without his consent.56 The provision would seem to indicate
that a Member cannot use those troops pledged to NATO to cope
with grave domestic situations unless it has received the Supreme
Commander's approval. It would seem that approval would be
necessary even where a Member desired to use its troops to meet a
serious emergency in the Member's overseas territories. Admittedly
the Resolution is ambiguous and the North Atlantic Treaty silent
on this point. But a centralized command and control have been
established with the appointment of a Supreme Allied Commander
Europe and the formation of a Supreme Headquarters, Allied
Powers, Europe (SHAPE) in I95o.57 And it is almost certain
54. EDC ADDITIONAL PROTOCOL No. 6. See also 8 THE WORLD TODAY 338-39 (1954);
RAPPORT WIGNY 5 8.
55. A dispute between the Member concerned and the Supreme Commander could
have been settled only by a joint meeting of the North Atlantic Council and the EDC Coun-
cil. Since the action of the North Atlantic Council must be unanimous, the Member
concerned would, at least formally, have had the power to veto action it deemed un-
desirable. Compare id. at 59.
56. NAC, PARIs RESOLUTION II 7(c).
57. North Atlantic Council, Resolution of the Fifth Session, reproduced in NATO
HANDBOOK 54-56 (1952).

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that the Supreme Allied Commander would have his say before
part of a national armed force could be temporarily withdrawn
from his command. A withdrawal without his consent would
constitute a breach of the Member's NATO commitment."
POWERS
Military Powers
Recruitment and Training of Forces. The EDC Treaty pro-
vided that initially Members were to recruit candidates for the
Defence Forces, though in accordance with the principles of the
Military Protocol and under Community supiervision.59 Ultimately
this power was to be transferred to the Community.6" Similarly,
the Community was to be empowered to recruit commissioned and
noncommissioned officers and to determine their rank and ad-
vancement.6' The power to build an officer corps would have
been a welcome guarantee against the service of Nazi-tainted offi-
cers in the Forces. Although the Community was to direct the
training of the Forces and administer their equipment, it was to
be subordinated to the Supreme Allied Commander. Since the
EDC was to operate within the broader framework of NATO, the
problems of training and equipping the Forces were matters of
vital interest to the Supreme Commander, who was "empowered
to satisfy himself that the European Defence Forces are organ-
ized, equipped, trained and prepared for use in a satisfactory
manner."62
The Western European Union has none of these powers. The
power of NATO's Supreme Commander to control the training
and equipment of national armed forces roughly corresponds to
that which he would have exercised over the common European
Army of the Defence Community.63 But by and large the Mem-
bers of the Union have retained their traditional powers. A pro-
nounced difference between the EDC and the WEU is noticeable
with regard to recruitment. Under the EDC recruiting would have
58. Doc. PAuL. 212.

59. EDC TREATY Arts. 73(1), 73(2).
60. Id. Art. 73(3). The extent of this power, however, was not specified; it can be in-
ferred that the Community, for example, would have been able to issue recruiting regula-
tions, to draft men subject to military service, to grant exemptions and deferments, etc.
61. EDC TREATY Art. 31; EDC MILITARY PROTOCOL Art. 14.
63. NAC, PARIS RESOLUTION ? 13.

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i8o STANFORD LAW REVIEW [Vol. 7: Page I69
become a Community matter; under the present arrangemen

will remain within the exclusive control of the Union Memb
Deployment of Forces. Stationing the elements of the For
was to be one of the important military powers of the Defe
Community. According to Articles 77 and I20 of the Treaty,
Community could have stationed components of the Forces-as
well as located its schools and training centers-within the con-
fines of the Community, or outside those confines but within the
broader area defined by the North Atlantic Treaty, or even outside
that area.
However, some safeguards were essential to protect the interests
of Members and those of NATO. T-he Members had to be assured
participation in such a decision because it would have affected their
security as well as their nationals serving with the components of
the Forces. Similarly, NATO could not have performed its func-
tions without some say. In stationing troops within its territory
the Community would only have been required to consult with
the host State.64 Since the Forces stationed in the territory of a
Member were to be largely composed of its own nationals,65 this
consultation would have been of primary importance only with
regard to the deployment of those elements composed of foreign
nationals. Although a host State could not have blocked deploy-
ment of the troops, it would have retained the right to have the
Community's decision reviewed by the Council66 or the Court67
of the Community. The control to be exercised by the Supreme
Allied Commander was more substantial. Within its territory
the Community had to deploy the Forces in accordance with his
recommendation.68 The Community could have disregarded his
recommendation only if its stand received the unanimous support
of its Members.69 To station Forces outside its territory the Com-
munity needed, in addition to the consent of the Supreme Com-
mander, the Members' unanimous approval.70
In contrast the Western European Union lacks any power to
control the deployment of its Members' armies. The EDC Treaty
64. EDC TREATY Art. 77(1), 1[ 2.
65. RAPPORT WIGNY 62.
67. Id. Art. 56.
68. Id. Art. 77(1).
69. Ibid.
70. Id. Arts. 120(2), 120(3).

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
March '9551 EDC AND WEU i8i
provided for the merger of nati

Defence Force; consequently th
determine where elements of the
the WEU-NATO arrangement n
the power to control deployme
the Supreme Commander of N
those combat forces placed und
area, the Supreme Commander
ment "with the national authorit
is made between the agreement o
be stationed outside its territory
receiving foreign components.
required mere consultation wit
rangement permits the Membe
foreign elements on its soil. How
of NATO forces may make the st
nents on another Member's soil a
Mobilization Plans. The EDC was to prepare plans for the
mobilization of the economic resources, of its Members72 as well
as plans for the mobilization of the Defence Forces.73 Because of
fear of the Community's potential powers over the civilian econ-
omy, there was a futile and unwise attempt in the Additional
Protocol to limit the plans for economic mobilization to military
requirements.74 In view of the serious political and economic con-
sequences likely to result from mobilization, the Members were
to retain, at least temporarily, the power to order total or partial
mobilization.75 Ultimately the EDC would have established a
common military mobilization system supplemented by a plan
for uniform economic mobilization.
The Western European Union leaves the problem of mobiliza-
tion entirely to NATO and its Supreme Commander. In this
respect neither the Members of NATO nor those of the Union have
71. NAC, PARIS RESOLUTION 11 7(b).

73. Id. Art. 75, If 1. Plans were to be made after consultation with the governments
of the Member States.
74. EDC ADDITIONAL PROTOCOL No. 4.
75. EDC TREATY Art. 75, ?1 2. While the decision to proceed with mobilization was
to rest with the Member, the responsibility for executing the mobilization plans was to be
divided between the Community and the Member. See also Doc. PARL. 213. But see RAP-
PORT 12.

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i82 STANFORD LAW REVIEW [Vol. 7: Page 169
renounced the slightest part of their powers.

preme Commander is granted extended authority
bution and utilization of those logistic resources
his command,76 it is the individual Member t
for the logistic support of its components.77 An
defence program prepared and agreed upon by t
Council78 has a unifying effect on the action of i
ization of the program is the responsibility of t
of which still maintains its own mobilization s
unlikely that the results of the Supreme Comma
power will match the benefits that would have b
the single mobilization plan envisaged by the
Determination of Aggression and Initiation o
ures. Technically, none of the treaties under con
izes the organizations to determine the occurr
attack which would require the Members to c
Treaty commitments and to assist the Member a
at least, the determination is a matter for the in
The EDC Treaty declared an armed attack ag
or against the Community to be an attack agains
peacetime the Member was to contribute its shar
defence budget and place national components
munity's authority," in times of war it was to be
to aid the attacked State by all means-militar
76. NAC, PARIS RESOLUTION ?? 9, 10.
77. Gruenther, SHAPE and the Defence of Western Europe in FIVE YEARS OF THE
NORTH ATLANTIC ALLIANCE 11 (American Council on NATO ed. 1954); Address by Ad-
miral Wright at the Sixth Annual Conference on American Foreign Policy, Hamilton,
N.Y., July 14, 1954, as reproduced in NATO, Information Div., NATO Letter, August
1954, p. 25.
78. WARNE, NATO AND ITS PROSPECTS 48 (1954).
79. For criticism of the arrangement, see SUPREME ALLIED COMMANDER EUROPE,
SECOND ANNUAL REPORT 16 (1953). The lack of uniformity among the mobilization sys-
tems of the various Members seems even more of an anachronism in light of NATO's infra-
structure programs for the construction of airfields, pipelines and telecommunication
systems.
80. Article IV of the Brussels Treaty explicitly reserves the determination of aggression
to Members. See BECKETT, THE NORTH ATLANTIC TREATY, THE BRUSSELS TREATY AND
THE CHARTER OF THE UNITED NATIONS 28 (1950). So does Article 5 of the North Atlantic
Treaty. At least formally, Article 39 of the United Nations Charter goes further, for it
empowers the Security Council to "determine the existence of any threat to the peace,
breach of the peace, or act of aggression.... However, the provision applies only to
actions taken in pursuance of Chapter VII of the Charter, not to actions of self-defence
taken in accordance with Article 51. There the attacked State decides whether or not an
armed attack has occurred. See Kelsen, Collective Security and Collective Self-Defence
under the Charter of the United Nations, 42 AM. J. INT'L L. 794 (1948).
82. EDC TREATY Arts. 9, 93, 95.

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March 1955] EDC AND WEU I83
financial-at its disposal,83 an obligation w

require a Member to summon the econom
of overseas territories and part of its ind
forces."84
The extent of assistance which the Brussels Treaty requires a
Member to render in the event of armed attack seems little differ-
ent from that required of EDC's membership,85 but the commit-
ment of Members under the North Atlantic Treaty appears some-
what narrower than their commitment under WEU or EDC. In
case of an aggression a Member will assist the party attacked
by taking, individually or in conjunction with other States,
"such action as it deems necessary, including the use of armed
force. ))86 Unquestionably "each party remains free to exer-
cise its honest judgment in deciding upon the measures. it will take
to help restore and maintain the security of the North Atlantic
area."87
Armament. A prerequisite for effective common defence is
the proper co-ordination and integration of defence production.
Accordingly, the EDC Treaty provided for common armament,
equipment and supply programs to be planned in terms of the
Community's over-all defence needs.88 The most economic use of
the Member's natural resources, technical skills and other capabili-
ties would have guided the implementation of these programs.
The Treaty also proposed the launching of a common scientific
and technical research program designed to facilitate the improve-
ment of production techniques and weapion efficiency.89
In contrast, the Western European Union plays no part in the
defence or armament programs; defence production is to be car-
ried out through NATO. Therefore, meaningful comparison of
EDC with the present arrangement requires an examination of
83. Id. Art. 2(3). "C'est donc une entiere solidarite defensive qui existe entre les
Etats membres et qui garantit 'a chacun d'entre eux, en cas d'aggression le plein et auto-
mati.que appui de tous les autres et celui des forces de la communaute," states the French
expose on the Treaty. Doc. PARL. 217. [Emphasis added.]
84. See note 83 stupra and BINDSCHEDLER, RECHTSFRAGEN DER EUROPAISCHEN EINIGUNG
272 (1954).
85. Compare Art. IV, which commits the Members to afford "all the military an
other aid and assistance in their power."
86. SEN. EXEC. REP. No. 8, 81st Cong., 1st Sess. 13 (1949). See Heindel, Kalijarvi
and Wilcox, The North Atlantic Treaty in the United States Senate, 43 AM. J. INT'L L. 646
(1949).
87. SEN. EXEC. REP. No. 8, 81st Cong,. 1st Sess. 13-14 (1949).
89. Id. Art. 106.

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NATO. Basically the armament objectives of EDC and NATO

are identical. But the EDC Treaty enunciated those objectives
more precisely, conferred specific powers on the Community
and prescribed in detail the Members' commitments. The corre-
sponding provisions of the North Atlantic Treaty are, on the other
hand, very general. Its objectives and the commitments of its
Members become specific only in terms of NATO practice in the
resolutions of the North Atlantic Council. Very early in its devel-
opment NATO abandoned the policy of building the defences of
the North Atlantic area in strict accordance with narrow concepts
of national defence; instead NATO adopted the concept of bal-
anced collective forces. Plans for defence are to be formulated
"along the lines of the most economical and effective utilization
of the forces and material at the disposal of the North Atlantic
countries."90 To co-ordinate planning and production of its Mem-
bers, the North Atlantic Council each year assesses in its Annual
Review the defence needs of the entire area and recommends to
its Members expenditures for national defence production, for the
maintenance and training of troops and for infrastructure pro-
grams.9' The establishment and implementation of the defence
program is, of course, carried out by the Members' unanimous
agreement. This respect for equality of state powers should not,
however, hide the unique character of NATO, whose activities
in actual practice not infrequently are inconsistent with the tradi-
tional concepts of national sovereignty.92
Economic Powers
There is a pronounced difference between the extent of the

economic powers of the EDC and those of the Western European
Union, piarticularly with regard to the control of armament pro-
duction. The Community was to be granted extensive control of
production so that it could execute the common defence programs
successfully and at the same time prevent abuse of the armament
limitations by heavy industry. The EDC Treaty prohibited any
90. North Atlantic Council, Communique of the Fourth Session, May 18, 1950, as
reproduced in NATO HANDBOOK 50-52 (1952). For further discussion, see ISMAY,
NATO-THE FIRsT FIVE YEARS, 1949-1954 140-41 (1955); ROYAL INSTITUTE OF INT'L
AFFAIRS, ATLANTIC ALLIANCE 52-55 (1952).
91. For a detailed discussion of the nature and function of the Annual Review, see
ISMAY, op. cit. supra note 90, at 89-97; see also WARNE, NATO AND ITS PROSPECTS 30-49
(1954).
92. Id. at 49.

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individual, irrespective of his nation

enterprise from engaging in the prod
the territory of the Community wit
The list of war materials included
anti-tank weapons, artillery, torped
of all kinds, powder and explosives,
and military aircraft of all types, a
weapons-atomic, biological and che
prohibited was the production of m
ment which could be used to manuf
equipment, warships, and military a
complete armament control, the Com
only the production of war materials
well.95 Export control was intended
needed by the Community. Import c
intended to prevent a Member fro
for independent national armament.
The Community was empowered
individuals and enterprises to produc
rials. Although the Treaty itself was
tice the Community would have had
the duration of the licenses as wel
material that could be produced, im
licenses. The power to grant thes
limitations. First, the Community
of strategically important weapon
long-range guided missiles, naval ves
craft, or military aircraft-in"strat
93. EDC TREATY Arts. 107(1), 107(3). See a
94. EDC TREATY Annex I to Art. 107. But see
which sought to restrict application of the prohib
of nuclear fuel to "strategically exposed areas," m
95. RAPPORT 21.
96. Controlling the importation of war material is very important. The Weimar Re-
public used the import of illegal war material as a means of avoiding disarmament control
provided for by the Versailles Peace Treaty. Transferring war industry abroad was an-
other device. For instance, in the early twenties Junkers, Heinkel and Dornier began to
manufacture military aircraft in Russia, Sweden and Switzerland. See G6RLITZ, DER
DEUTSCHE GENERALSTAB 366 (1950). Similarly, the Swedish firm of Bofors started to use
Krupp designs for the manufacture of guns pursuant to an agreement concluded between
the two firms in 1921. TAYLOR, SWORD AND SWASTIKA 44 (1952). For a detailed account
of similar German activities in Russia, see HILGER AND MEYER, THE INCOMPATIBLE ALLIES
193-208 (1953). It is interesting to note that the German Dornier Aircraft Manufacturing
Company has already established a subsidiary in Spain and thus avoided Allied control.
N.Y. Times, Dec. 10, 1954, p. 10, cols. 1-3.
97. EDC TREATY Art. 107(4a).

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i86 STANFORD LAW REVIEW [Vol. 7: Page I69
territory of West Germany was then, as it is now, c

be such an area.98 Second, licenses for the construction of new
powder plants or plants producing short-range anti-aircraft guided
missiles were to be granted only within territories specifically
agreed upon by all Members and then only upon the condition
that production would be supervised by a Community inspector.99
Control of material designed for use by overseas forces and of arms
and ammunition for civilian use was to have been less rigid.100 In
both instances the Community would have granted general li-
censes-i.e., licenses issued to the Member. After estimating the
Member's needs the Community would have determined the na-
ture and volume of the permissible armament and ammunition
production.101 The Member itself would have allocated the pro-
duction quota fixed by the general license among its nationals and
enterprises by issuing specific licenses. The general licenses were
to be subject only to those limitations necessary to prevent their
abuse-e.g., where a Member armed a para-military organization
at home by perverting a general production license granted to
facilitate the arming of overseas armed forces.
Although the Western European Union was designed to satisfy
the French desire to have German rearmament controlled, the con-
trol provided for by the WEU Protocol'02 is more limited and less
satisfactory than that proposed by the EDC Treaty, primarily be-
cause of the necessity of placating Germany's keen demand for
equality. Instead of controlling armament production by licensing,
as proposed in the EDC Treaty, the Brussels Treaty merely empow-
ers the Union to control the amount of specified war implements
stocked by the Members on the Continent.'03 The Union can regu-
late the production and importation of arms only "to the extent
98. See the exchange of letters between the government of the Federal Republic of
Germany and the governments of the co-signatory States to the Treaty Constituting the
European Defence Community concerning Article 107 of the Treaty.
99. EDC TREATY Art. 107(4b).
100. Id. Arts. 107(4e), 107(4f).
101. RAPPORT WIGNY 81. The EDC ADDITIONAL PROTOCOL No. 5 provided that the
general licenses "may not involve any limitation of duration, quality or quantity other than
those which result from paragraph 4 (e) and (f) of that Article." Note that the Treaty
did not state whether the Commissariat or the State determines the volume of armament
designed for overseas defence forces.
102. WEU PROTOCOL No. IV ON THE AGENCY OF WESTERN EUROPEAN UNION FOR THE
CONTROL OF ARMAMENT.
103. Id. Art. 7(1). See also the Secretary of State's report on the protocols in SEN.
EXEC. DOC. No. L AND M, 83d Cong., 2d Sess. 11-12 (1954).

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required to make the control of s

exports is even weaker.105 Of cou
of ABC weapons, tanks, armored vehicles, guided and self-pro-
pelled missiles, aircraft, warships, etc., stocked by the Members;`06
but the list of items subject to control is less comprehensive than the
list in the EDC Treaty'07-for instance, machine guns, other infan-
try and small artillery weapons, and armed vehicles under io tons
are not included. Another serious shortcoming of WEU is the
absence of the Union's control over machinery and technical equip-
ment designed exclusively for the production of controlled war
material, a safeguard wisely included in the EDC Treaty. No
less regrettable is the fact that, unlike the EDC Treaty, which
addressed its prohibition not only to States but to individuals as
well and made the latter directly responsible to the Community,'08
the new arrangement is apparently addressed only to States. The
holding of war implements by private organizations or individuals
seems outside the Union's control.
As under the EDC, Germany has renounced the right to manu-
facture on its territory, generally considered as being strategically
exposed, certain specified war implements.109 These implements
are, with a few exceptions favoring Germany,1"' identical with those
enumerated in the EDC Treaty. The Union will assure observance
of the undertaking. Thus the Union will not only supervise the
accumulation of those arms whose production Germany has re-
tained, but will also enforce Germany's renunciation of the produc-
tion of the specified war implements.'1'
Unquestionably, the control of production through prior licens-
ing envisaged by the EDC would have been a more effective means
of preventing illegal rearmament than the Union's control of
104. WEU PROTOCOL No. IV Art. 7(lb).
105. Id. Art. 22 merely provides that each member "shall keep the Agency informed
of the quantities of armaments" under the Union's control "which are to be exported from
its territory on the mainland of Europe. The Agency shall be entitled to satisfy itself that
the armaments concerned are in fact exported. If the level of stocks of any item subject to
control appears abnormal, the Agency shall further be entitled to enquire into the orders
for export."
106. WEU PROTOCOL No. III Annex IV.
108. Id. ANNEX I TO Art. 107.
109. WEU PROTOCOL No. III Art. 1 and Annexes I-III.
110. For instance, Germany is now permitted to manufacture under the control of the
Agency warships up to 3,000 tons displacement (under the EDC Treaty only up to 1,500
tons) and submarines up to 350 tons displacement (the EDC prohibited production of
any submarines).
I 1 1. WEU PROTOCOL No. III Arts. 3, 4.

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i88 STANFORD LAW REVIEW rVol. 7: Page I69
stocks. The EDC's control would have been particularly effective

since all of the powers over the Defence Forces and the production
of arms would have been concentrated in the Community. Be-
cause of the merger of national armies into a common Defence
Force through the device of tightly integrated commands, there
was no need for special controls assuring that the agreed-upon lim-
its of military strength would be observed. The Community would
have been in complete and constant command over its forces. Pri-
mary attention could have been directed to control of production,
control which would have enabled the Community to discover a
violation early in the production process and thus to minimize the
diversion of prohibited war material.
The WEU-NATO arrangement attempts to compensate, at
least in part, for the looser integration of national armies in NATO
by controlling the level of the forces to be maintained by a Mem-
ber-particularly with regard to Germany-and by determining
the quantities of arms to be held by those forces, armament informa-
tion serving as a basis for the control of armament stocks."12 The
exercise of this control is divided between SACEUR and the West-
ern European Union in accordance with the distinction between
national armed forces placed under SACEUR's command and
those forces which, together with the internal defence and police
forces, remain under national control.'13 The Union determines
the strength of national armed forces, to be placed under the com-
mand of the Supreme Allied Commander114 and sets the maximum
amount of ABC weapons that can be stocked by its Members ;115
but it is the Supreme Commander who inspects and checks the
forces, their armament and their depots.116 The Union merely
compares the Member's annual statement concerning its forces1"7
with the results of the inspections conducted by SACEUR and with
the NATO Annual Review, which specifies the quantities of
arms to ble held by each Member's forces.118 On the other hand, the
112. WEU PROTOCOL No. IV Arts. 7(1), 7(2).

113. Id. Arts. 7(2a), 7(2b); NAC, PARIS RESOLUTION 1[1T 11, 12, 14.
114. WEU PROTOCOL No. II Art. 3.
115. WEU PROTOCOL No. III Art. 3.
116. NAC, PARIS RESOLUTION ?[?[ 11, 12.
117. To facilitate stock control Members must submit to the Union annual statements
reporting the total quantities of armament required and currently held by both categories
of its forces and the programs for supplying any deficiency. WEU PROTOCOL No. IV Art. 13.
1 1 8. WEU PROTOCOL NO. IV Art. 14.

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March I9551 EDC AND WEU i89
quantity and quality of the internal defence and police forces'

armament are to be fixed by an agreement among the Members
of the Union,"19 and the Union does possess the right to check on
the observance of that agreement. The Union does not, however,
fix the level of the arms stocked by the other military forces re-
maining under national control; there the Protocol merely pro-
vides that the "total quantities of armaments . . . shall correspond
to the size and mission of the forces concerned."'20
The Defence Community was empowered to conclude contracts
with private and public enterprises for the purpose of executing
approved armament and construction programs.'2' Contracts were
to be awarded after public bidding to the bidder who made the
most advantageous offer.'22 The bidding was to be open to any
contractor, regardless of his nationality, provided he was not
disqualified from participating in public bidding in his own coun-
try. Although it prohibited discrimination among bidders on the
basis of nationality, the Treaty limited this guarantee to the na-
tionals of Member States. It is conceivable that the Community
might have discriminated against nationals of non-Member States
in order to keep employment high in the industries of its Members
or to avoid a large transfer of their currency abroad.
Unlike the EDC, neither the Union nor NATO is responsible
for the execution of the defence programs. Each Member enters
into the necessary contracts with the armament and building in-
dustries. Not even the infrastructure programs, which represent a
collective undertaking, are executed by NATO.'23 Execution is

120. Id. Arts. 16, 17.
12 1. EDC TREATY Arts. 104 (1), 104 (2).
122. Id. Art. 104(3). The English text is misleading as it provides that "orders must
be placed with the lowest bidders"; the original French text of this provision provides that
"les commandes doivent etre attribuees aux offres les plus avantageuses." [Emphasis
added.]
For a further elaboration, see MEND'Es-FRANCE PROPOSAL ? VI(2).
123. For a formula indicating the contributions for the long-term infrastructure pro-
grams, see, e.g., NATO, Information Service, Press Release, April 24, 1953. According to
this agreement France, for example, contributes 13.75%; Italy, 6.50%o the United King-
dom, 11.45%; the United States, 42.86%.
At its April 1953 meeting the North Atlantic Council approved an expenditure of
250 million pounds for the execution of infrastructure programs over a three-year period
beginning with 1954. NATO HANDBOOK 46 (2d ed. 1953). For recent data on infrastruc-
ture programs, see 32 DEPT. STATE BULL. 89 (1955).
For a summary of NATO achievements in the field of common infrastructure such as
airfields, signals, communications, fuel supply systems, training facilities and naval projects,
see ISMAY, NATO-THE FIRST FIVE YEARS, 1949-1954 122-24 (1955).

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IQ0 STANFORD LAW REVIEW [Vol. 7: Page I69
left to the Member in whose territory the joint pro

built.'24 That Member, however, acts as an agent on behalf of
the Organization, follows its technical specifications and awards
the project in compliance with the NATO rules of bidding.125
The Community's defence efforts would have required sub-
stantial improvement of its Members' military installations, public
services and utilities. If, for example, the Community had found
existing military installations deficient, it would have first at-
tempted to reach an agreement with the State, under which the
latter agreed to expand its installations or, if necessary, to construct
entirely new ones. The Community would also have sought agree-
ment as to the location and other particulars of the project.126 If,
perchance, a railroad between two strategically important areas
was considered inadequate to hapdle heavy troop or supply move-
ments, the Community might have suggested an expansion of the
existing railroad or the construction of new track or even of a high-
way. If it failed to reach an agreement with the State, the Com-
munity itself could have decided which measure ought to be
taken.127 The Community's action would have resembled the
action now taken by the defence, transport or public works min-
istries of an individual state.
The Brussels Treaty leaves the task of improving strategic facili-
ties to SACEUR, whose powers are primarily those of negotiation.
Whether the question is one of choosing the proper means of
logistical support, determining their geographical location or estab-
lishing the relative priority of a given logistical plan, SACEUR can
only proceed if the State in whose territory the project is to be lo-
cated agrees.'28 Under the EDC Treaty, the Member State ulti-
mately had to yield to the Community decision unless that de-
cision was reversed by the Court of the Community.'29 In con-
124. NATO, Information Service, Press Release, April 24, 1953, p. 2.

For a discussion of the technique used to devise and implement the infrastructure pro-
grams, see ISMAY, op. cit. supra note 123, at 118-22.
125. UNITED STATES DEPT. OF COMMERCE, BUREAU OF FOREIGN COMMERCE, INTER-
NATIONAL COMPETITIvE BIDDING FOR NATO INFRASTRUCTURE PROGRAM 1-2 (1954).
126. EDC TREATY, CONVENTION RELATIVE TO THE STATUs OF EUROPEAN DEFENCE
FORCES AND THE TAX AND COMMERCIAL REGIME OF THE EDC Art. 17 (hereinafter cited as
EDC CONVENTION ON THE STATUJS OF DEFENCE FORCES).
127. Id. Art. 18, which deals only with public services; and id. Art. 21, which is con-
cerned with "installations of military nature, which are to be used exclusively by the Euro-
pean Defence Forces." [Emphasis added.] See also RAPPORT 24.
128. NAC, PARIS RESOLUTION 1 10.
129. EDC CONVENTION ON THE STATUS OF DEFENCE FORCES Arts. 18, 21 (1).

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
March I955] EDC AND WEU I9I
trast, a Member of the Union retains the fin
cation that the Western European Union lean
traditional pattern of international co-operat
Both the Union and NATO leave the respo
filling the defence programs to each Member
Treaty, however, this responsibility was to rest with the Com-
munity."' The Community was to intervene whenever economic
difficulties, such as large-scale strikes, high prices or shortages of
raw material or equipment, threatened to block or delay the exe-
cution of the various defence programs."2 It could have done so,
for example, by transferring the execution of the endangered pro-
gram to an enterprise located in another Member State, provided
that the measure would have eliminated the difficulties without
substantially increasing the Member's burden. It is, however,
doubtful that the Community could have fixed minimum or maxi-
mum prices, allocated raw material, and the like. It is more likely
that the Coal and Steel Community would have assisted the EDC
by taking the necessary measures with regard to coal, iron ore and
steel if and when it considered market conditions to be abnormal."'
But the EDC was empowered to take action against public or
private business practices restraining normal competition if those
practices endangered the Community's programs."4 The Treaty
neither specified the industries to which these provisions applied
nor defined how grave the distortion of "normal competitive con-
ditions" must be to justify intervention by the Community. It
may be assumed that any practice seriously affecting prices, restrict-
ing production or impeding the advance of technology, any divi-
sion of markets, or any allocation of raw materials would have
been a ground for intervention by the Community,"' and that the
Community would have restored free competition, with the State's
assistance, by refusing to grant production licenses or by breaking
130. WARNE, NATO AND ITS PROSPECTS 11, 48 (1954).

131. EDC TREATY Art. 104 (1).
132. Id. Art. 105.
133. HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, TREATY Es-
TABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY Arts. 57, 58, 59, 61, 86 (herein-
after cited at ECSC TREATY); for further discussion, see Bebr, The European Coal and Steel
Community: A Political and Legal Innovation, 63 YALE L.J. 1, 13-15 (1953).
135. It is, of course, questionable to what extent the Community would have consid-
ered it feasible to require strict observation of "normal competitive conditions" in times of
emergency.

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up cartel arrangements, depending on the nature of

practice.
Financial Powers
The difference between the Annual Review of NATO and the
common defence budget of EDC is reflected in the financial powers
of these organizations. A natural incident of the common defence
effort envisaged by the EDC Treaty was a common defence budget.
The budget was to list the Member States' contributions, the Com-
munity's own income and any sums resulting from external aid."3'
The States' contributions were to be the main source of income.
The budget was also to list all proposed defence expenditures from
the necessary expenditures for armament, equipment, supply and
infrastructure programs to those expenditures necessary for the
remuneration of the Community's civil and military personnel.137
A special annex was to indicate the countries in which the expendi-
tures were to be made.'38
Under the present WEU-NATO arrangement there is no com-
mon budget similar to that of the EDC. There are only the indi-
vidual Members' defence programs which are agreed upon and
co-ordinated by the North Atlantic Council in its Annual Review.
Once it had established its defence needs, the Community was
to determine the budgetary contribution each Member was to
make. The contribution was to be proportional to the Member's
financial, economic and social capabilities.'39 Until the members
agreed otherwise the Community would have determined the
Members' financial contributions in the same way that NATO
fixes the defence expenditures recommended to Member States.'40
NATO establishes the so-called "maximum politico-economic
capabilities" of a country by considering its financial situation,
economic strength and the expected impact of rearmament on
its economy."4' The country's capability is also evaluated in terms
137. Id. Art. 86.
138. EDC FINANCIAL PROTOCOL Art. 7.
139. Unlike the ECSC, the EDC would have had no taxing power. A common tax
designed to defray the Community defence expenditures would have been inconceivable.
Such taxation could have been introduced only under the European Political Community,
which would have harmonized the economic and social policies of the States. See RAPPORT
WIGNY 74.
140. EDC TREATY Art. 87 bis. (3a).
141. As to NATO practices, see ROYAL INSTiTUTE OF INT'L AFFAIRS, ATLANTIC ALLI-
ANCE 86-91 (1952). See also German Defence Contribution and the European Defence
Community, CMD. 8492, at 18-24 (1952).

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of its economic output, its production potent
real income of its population. Since armame
terial imports, NATO also considers the country's balance-of-
payments position. The Members of the EDC had to include the
amount of their contribution in their national budgets and obtain
whatever approval their respective constitutions required.'42 The
contribution to the EDC would have represented what is now the
Member's "European" defence budget.
The contribution was to be paid in the State's currency.143 But
the transfer of the sum to the Community might have imperiled
the financial and economic stability of the State and aggravated
its balance-of-payments position. Thus the Financial Protocol
obliged the Community to use at least 85 percent of a State's
contribution within that State's monetary zone.'44 This provision
also served to negate the impression that most of the State's contri-
bution would be spent for another State's benefit. It was essential
that the State's industries be assured participation in the increased
economic activity usually associated with rearmament. The Com-
munity was permitted to transfer the remaining I5 percent of the
State's contribution, without the State's consent, to any member of
the European Payments Union.'45 On the other hand, the Treaty
provided that the receiving Member State was not obliged to ac-
cept more than II5 percent of its own contribution,'46 a provision
designed to curb inflationary tendencies. Fear of inflation also
prompted a provision permitting the Community to accept exter-
nal aid only in so far as it did not "endanger the economic, financial
and social stability of one or more member States."'47
In contrast, NATO's financial powers are of limited extent.
Under NATO there is no common financial pool such as that en-
visaged by the EDC. There is no transfer of funds from the Mem-
ber to the Organization, with the exception of those contributions
142. EDC TREATY Art. 87(2a). In practice it would have been very unlikely that
the Community would have determined the Member's contribution without prior consulta-
tion with the competent ministers and parliamentary commissions. In determining contri-
butions the Community would certainly have taken into consideration the stand of the
national legislatures. See RAPPORT WIGNY 108. But see MEND'ES-FRA4CE PROPOSAL ? V,
which insisted that the decision fixing the budget be preceded "by a parliamentary vote on
the amount every member will contribute."
143. EDC FINANCIAL PROTOCOL Art. 25.
144. Id. Art. 29.
145. Id. Art. 31.
146. Id. Art. 30.

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194 STANFORD LAW REVIEW [Vol.7: Page 169
necessary to defray the operational costs of th

stead the Members are committed to make mat
by building their own military strength. NA
fix the amount of defence spending by a Memb
recommendation carries great weight. After it
total defence requirements of the Organization,
Treaty Council collectively scrutinizes the defe
Member in terms of its politico-economic capab
mends the defence burdens to be carried by
attempts to reconcile the State's defence budge
requirements of the Organization.'48 If, in th
Council, an increase in national defence expend
justified and necessary, the Council will attemp
crease by an agreement with the Member State
NATO does exert some influence on the budget
it does not restrain their budgetary powers to
would have.'50 The EDC would seem to have off
control of the State's armament potential as we
execution of the defence program.'5
Powers of Inquiry and Supervision

The difference between the supranational E
traditional WEU-NATO arrangement is also
contrast in their powers to request informat
have the Defence Forces under its direct contro
would have had access to all relevant militar
power of inquiry was therefore of primary im
to armament production. The Community co
such information from the enterprises and Me
The Community was empowered to approach
rectly, without any State intercession; and if
have had any information verified by Commun
148. WARNE, NATO AND ITS PROSPECTS 30 (1954).
149. For example, Norway, Denmark, the Netherlands and I
by half the amount of their defence expenditures as proposed b
committee at Lisbon in 1951. id. at 37.
150. Thus Britain disregarded the previous recommendation
Council, completely recast its defence program and "presented i
as a fait d'accompli." Id. at 42. "No one could deny either Sir
Pleven the right" states the commentator, "which they both claim
ments only two months before the review, to take important d
cisions without consulting their allies. Ibid.
151. RAPPORT 17.

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March 1955] EDC AND WEU 195
Member's commitment was broader than

it included "all information necessary fo
[the Community's] Mission."'53 Any mat
affairs might have been the subject of
to be carried out by State agents but wi
tion of Community agents.'54 Since the
tween military and nonmilitary matte
the increasing totality of warfare, th
Community might exceed the bound
safeguard against that danger, the Tre
ber could refuse the Community's reque
information sought was not required
munity Court was to be the final arbiter
The complementary character of the W
and NATO is reflected by the manner
inquiry and inspection are distributed. T
mander may request information from
numerical strength and effectiveness of
command, the quality and quantity of th
and supplies, and the organization and
their logistic resources.'58 If necessary, t
this information by field inspections wi
mand. The Union, on the other hand,
quiries concerning those forces not p
cluding internal defence and police for
inquiries regarding the Members' produc
The Union may also conduct on-the-spot
gations of those forces and the Member
depots, the location of which must be re
153. Id. Art. 114(1).
154. Ibid.
155. Id. Art. 114(1), ? 3, however, prescribed that the Member must request a ruling
from the Court within ten days; evidently the Community would have been entitled to the
information requested if the Member had not done so.
156. NAC, PARIs RESOLUTION 1T 11; WEU PROTOCOL No. IV Art. 8.
157. Id. Arts. 7(2a), 13-16, 20(3), 21, 22. Note that the names and locations of
plants manufacturing war material under control of the Union are to be reported by the
Member State and not by the individual plants.
158. Id. Arts. 11, 21. "Inspections by the Agency shall not be of a routine character,
but shall be in the nature of tests carried out at irregular intervals." Id. Art. 11. The text
as published in the SEN. EXEC. Doc. No. L AND M, 83d Cong., 2d Sess. (1954), erroneously
states "at regular intervals." But see the French and German texts, as well as the corrigenda
attached to the British White Paper, Documents Agreed on by the Conference of Ministers
Held in Paris October 20-23, 1954, CMD. No. 9304 (1954), which confirm the fact that
the framers of the Protocol intended to establish irregular inspections.

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The Union is guaranteed free access to the sites of th

as well as to relevant documents and accounts.159 To f
tate control, the Union analyzes and checks the annu
and statistical and budgetary data supplied by the Me
Under certain circumstances an inspection might
invade the individual's right to privacy and raise som
delicate constitutional problems. If, for example, an
Union or of the Community were refused access to a
plant, would he be justified in using force to enter if
able grounds to believe that illegal armament produc
carried on? An equally difficult problem might fa
the Union who in course of inspection- of an armam
covered evidence indicating that arms were being ille
Could he search the premises? These problems suggest the de-
sirability of having the agents accompanied on their inspections
by local police who would conduct the search under the agent's
supervision but in accordance with the law of the State con-
cerned."6'
Powers of Enforcement
The difference between the EDC and the Union is particularly
evident in the case of sanctions. The Community was empowered
to uphold the Treaty provisions and the acts of the Community
organs by imposing sanctions on members of the Defence Forces,
individuals and private and public armament plants. The Com-
munity could have punished a member of the Forces who was
guilty of a penal offence, had committed an infraction of military
discipline or violated the international rules of war.'62 Whether
the Community would have fined the offender, imprisoned him
or deprived him of his life-if he was a national of a State recog-
nizing capital punishment`63-would have depended on the na-
159. WEU PROTOCOL No. IV Art 12.
160. Id. Art. 7 (2a).
161. Article 3(1) of the EDC Treaty would have permitted the Community to "inter-
vene only to the extent necessary for the fulfillment of its mission and with due respect to
public liberties and the fundamental rights of the individual." [Emphasis added.] Sim-
ilarly, WEU PROTOCOL No. IV Art. 11 provides that "[t]he Director shall propose to the
Council detailed regulations for the conduct of the inspections providing, inter alia, for
due process of law in respect of private interests." Situations like those cited in the text
actually arose during the period of Allied control of German disarmament after World
War I. See NOLLET, UNE EXPERIENCE DE D?SARMEMENT 22-23 (1932).
163. EDC JURISDICTIONAL PROTOCOL Arts. 18, 19; EDC MILITARY PENAL LAW PROTO-
COL 1I? 7-9.

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ture of the offence committed.

ized to fine individuals and enterprises who manufactured, ex-
ported or imported war materials or engaged in technical mili-
tary research without a prescribed license, or who failed to provide
requested information or knowingly provided false information.1"4
Although the Member States were to be bound to "refrain from
acts incompatible with the provisions of the present Treaty" and
to carry out the "obligations imposed by decisions and recommenda-
tions" of the Community organs, there was no provision for Com-
munity sanctions against a delinquent State.165 In case of disagree-
ment between the Commissariat and the Member States as to
whether the latter had violated the Treaty, either might have had
recourse to the Court; but unlike the Treaty establishing the Euro.
pean Coal and Steel Community,'66 Article I I7 of the EDC Treaty
provided that the Community Court was merely to decide whether
the alleged acts constituted a violation of the Treaty and in-
form the Council of its decision.'67 Apparently, from that point
on, the matter was to be handled by the Council through further
negotiations. That no other consequence attended the Court's de-
cision is explained only in part by the delicate problem of impos-
ing sanctions against a State.'68
Less effective enforcement measures are available to the West-
ern European Union. The WEU is similar to the EDC in that
Member States apparently are not subject to any sanctions; they
merely promise to remedy any violation committed.'69 But the
Union also lacks a sanction against individuals who hold abnor-
mal stocks of controlled war material.'70
Summary
What then are the primary distinctions between the powers
and objectives of EDC and those of WEU-NATO? There is, of
course, a striking difference apparent in the degree to which
the military forces are or were to be integrated. Under the EDC,
integrated command was to extend to as low an echelon as an army
164. EDC TREATY Arts. 107(6), 108(2). 165. Id. Art. 112.
166. ECSC TREATY Art. 88. 167. EDC TREATY Art. 117, f[?[ 2, 3.
168. See DoC. PARL. 21 1.
169. WEU PROTOCOL No. IV Arts. 20(2), 20(3).
170. This shortcoming is particularly serious with regard to possible development of
private para-military organizations. See, e.g., FRIED, THE GUILT OF THE GERMAN ARMY
172-77 (1942); JORDAN, GREAT BRITAIN, FRANCE AND THE GERMAN PROBLEM, 1918-1939
144 (1943); NOLLET, op. czt. supra note 161, at 217-26.

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corps. Moreover, there was to be an integrated general staff, a

feature designed to prevent the revival of a German general
staff.'7' In contrast, NATO Forces are integrated only loosely
from the army group up. And formally there is nothing to pre-
vent the re-establishment of a German general staff.'72 It is fre-
quently argued that the WEU-NATO scheme, which makes Ger-
many a Member of NATO and assures her of a national army and
a general staff, is preferable to the EDC because it makes possible
greater military efficiency.'73 From a viewpoint of strict military
expedience and efficiency, the argument may be sound if other
long-term considerations are disregarded. But military affairs must
also be appraised in terms of their political consequences. In view
of the German general staff's past skill and genius in creating ruth-
less military machines and its tragic political adventure, it may well
be that the political advantages of the EDC would have far out-
weighed its alleged military deficiencies.
The EDC and the Union were alike in their power to deter-
mine the strength of the Members' armed forces. But this power
is not in itself an adequate guarantee against renascent militar-
ism. Regulation and supervision of recruitment are also neces-
sary because short but intensive training and quick rotation of
recruits would assure military training to a large segment of a
State's population.'74 The EDC foresaw the difficulty and pre-
scribed, for this and another reason, a minimum length of service
which was applicable throughout the Community.'75 The Brus-
sels Treaty, in contrast, does not mention the matter. It even dis-
regards the common military training schools to which the EDC
171. RAPPORT 28. But see Juin, Pourqnioi ce traite est inacceptable in LA VERITE SUR
L'ARM?E EUROP?ENNE 85-86 (1954), in which the General argues that the Deputy, who
would have been attached to the central military body of the Commissariat and responsible
for "directing the build-up of the contingent furnished by that State, acording to the instruc-
tions and under the supervision of the Commissariat," EDC MILITARY PROTOCOL Art. 6,
would actually have been the chief of a general staff. The General dismissed without much
comment the fact that the detachment at the disposal of the Deputy was also to be integrated.
172. RAPPORT WIGNY 98. See also BERICHT 11.267-68. In accordance with the EDC
MILITARY PROTOCOL Arts. 6 and 7, there would have been integrated chiefs of staff subject
to the Community.
173. See, e.g., the statement by Field Marshal Montgomery. N.Y. Times, Nov. 11,
1954, p. 6, col. 6.
174. For this reason the Versailles Peace Treaty, which limited the total strength of the
German army to 100,000 men (Art. 160[1]), explicitly provided in Art. 174 that "the
period of enlistment for non-commissioned officers and privates must be twelve consecutive
years." Similarly, Art. 175 stated that "the officers newly appointed must undertake to serve
on the active list for twenty-five consecutive years at least."
175. EDC MILITARY PROTOCOL Art. 12(2) fixed the period of active service 'at a
minimum of eighteen months...."

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Treaty attached considerable importance. The NATO Defence

College is not a satisfactory substitute. Community schools would
have operated under much stricter control than that exercised by
SACEUR over the national military schools. Consequently, there
is a greater danger under the WEU-NATO arrangement that the
national schools, even though they are not administered in the
traditional spirit of a Prussian Kadettenschule, may by subterfuge
train and indoctrinate an officer corps disproportionately large
in comparison with army strength and thus form a reservoir of
military leaders prepared for another military venture. Compari-
son of the Union with EDC is even less favorable when it is re-
called that under the EDC Treaty the Community would have
been in charge of building a Defence Forces' officer corps. Since
the Community would have awarded commissions with respect
to any homogeneous units, it would have been in a position to
eliminate undesirable or unreliable elements from the corps.
NATO and its SACEUR may have some power to name officers
to the chiefs of staff of army groups; but below that level the
Members are responsible for the selection of officers.
One of the few advantages the Brussels Treaty does seem to
offer in comparison with the EDC Treaty is the power it gives the
Union to determine the strength of internal defence and police
forces. This power is of some importance because police, semi-
military and so-called "patriotic" organizations have been used in
the past to disguise the development of an army, thus frustrating
whatever control there was over regular armed forces.
The centralization of armament plans, production programs
and financing envisaged by the EDC Treaty would have facili-
tated the formation of a single defence force.176 This arrange-
ment would have been far superior to anything the WEU-NATO
scheme can offer at present. Leaving the execution of defence
programs to the discretion of each Member is a disadvantage mili-
tarily and, furthermore, aggravates armament control. The WEU-
NATO scheme does have merit in that comprehensive production
plans are prepared by NATO with a view to the defence of the
entire North Atlantic area. Yet there seems to be no valid reason
why such broad programming could not have been possible
through NATO and the Defence Community.
176. RAPPORT 27-28.

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In justice to the present WEU-NATO arrangement it must be

kept in mind that France, the United States and the United King-
dom have reserved the right to maintain their troops in West Ger-
many during the present international tension,'77 a right which
these powers would have retained under the EDC as well. The
presence of those troops is an important safeguard with respect to
the control of German armament and may offset some of the de-
ficiencies of the Western European Union. Even so, it is doubtful
that the guarantees and safeguards embodied in the WEU-NATO
scheme are superior to those of the EDC.
INSTITUTIONS AND THEIR POWERS

In order to understand the precise character of the EDC
the WEU it is necessary to examine their institutional structur
and the distribution of power among their organs. Again, it sho
be kept in mind that the concepts underlying these organizatio
and the levels on which they operate are so fundamentally differ
that a strict comparison is impossible. It is therefore advisable
examine the institutional structure of the EDC first and then c
trast it with the primitive setup of the WEU and of NATO.
INSTITUTIONS
The European Defence Community

Since the Community was based on supraordination rather than
on co-operation, its institutional structure was to differ basically
from that of the traditional international organization. Besides
recognizing the usual state representation, the EDC was to estab-
lish a system of supranational representation. The Community
was to consist of the Commissariat (a supranational executive and
supervisory organ), which was to be aided by the Consultative
Committee in dealing with economic and social matters; the Coun-
cil of Ministers, a directorate representing the governments of the
177. AMENDMENT TO THE CONVENTION ON RELATIONS BETWEEN THE THREE POWERS
AND THE FEDERAL REPUBLIC OF GERMANY Arts. 2, 4; see also CONVENTION ON THE
PRESENCE OF FOREIGN FORCES IN THE FEDERAL REPUBLIC OF GERMANY Art. 1. The texts
of both Conventions are reproduced in SEN. EXEC. DOC. No. L and M, 83d Cong., 2d
Sess. 16, 93 (1954).
The original Bonn Convention reserved to the Allied Powers the exclusive right to
station troops in Germany. The new Convention restricts the exercise of this right inas-
much as the strength of stationed troops may be increased beyond that maintained in West
Germany at the time of entry of this Convention only with the consent of the Federal
Government. See the statement by Sir Anthony Eden, British Foreign Secretary, in the
House of Commons. 533 H.C. DEB. (5th ser.) 411 (1954).

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March I955] EDC AND WEU
Members; the Common Assembly, represen

Community; and the Court of Justice. T
and the Court of Justice, already establish
Steel Community, were also to serve the E
the aim being to foster the political consoli
munities.
The Commissariat was to consist of nine
of the Member States.178 They were to be
competence and appointed to serve for a
unanimous agreement among their govern
was agreed that the Commissariat would be composed of two
Frenchmen, two Italians and two Germans, leaving one seat each to
Belgian, Dutch and Luxembourg nationals.180
The Commissariat members were to have the right and duty
to discharge their functions completely independent of control by
their States or any special interest group.181 To assure their in-
dependence the Treaty provided that they were to enjoy immunity
from State interference in their official acts and be responsible to
the Community alone.
Because the Commissariat was to deal with delicate security
matters, the procedure for removal of a member was of particular
importance. As a rule only the Court could have removed a dis-
qualified member from the Commissariat."82 But unlike the Treaty
establishing the Coal and Steel Community-which reserves the
power of dismissal to the Court exclusively'83-the EDC Treaty
would have empowered the Council to suspend a Commissariat
member temporarily for the commission of a serious misdemeanor
until the Court's judgment.'84
The Pleven Plan had proposed the appointment of a Euro-
178. EDC TREATY Art. 20(l). No more than two members of the same nationality
could have served on the Commissariat at the same time.
179. Ibid.; id. Art. 21(1). Since unanimity was required for the appointment of mem-
bers to the Commissariat, the MENDES-FRANCE PROPOSAL ? II, 1T 13, providing that "the
functions of a member of the commissariat of the EDC are incompatible with those of any
member of the High Authority of the European Coal and Steel Community.. ., was un-
necessary.
The governments were to appoint even the President of the Commissariat. EDC
TREATY Art. 25(1). Compare ECSC TREATY Art. 10, ?f 1. Eight members of the High
Authority are unanimously appointed by the governments, while the ninth member is
chosen by the eight.
180. BERICHT 11.264. 181. EDC TREATY Art. 20(2).
182. Id. Art. 23. A member of the Commissariat might have become disqualified
either by committing a "serious misdemeanor" or by losing one qualification prescribed for
the office.
183. ECSC TREATY Art. 12, ?f 2. 184. EDC TREATY Art. 23, ?f 2.

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pean Defence Minister.'85 But fear of concent

power in the hands of a single person and ant
cal difficulties in finding a person acceptable to
the framers of the EDC Treaty to favor a col
prevent the Commissariat from becoming a heav
cratic organ,186 the Treaty distinguished betwee
upon which the Commissariat had to act as a uni
could have been disposed of by individual memb
The Consultative Committee was to advise t
on social and economic problems raised by th
execution of Community armament, equipment,
structure programs.'88 It was to be composed of 2
Management and labor active in the industries af
munity programs were to be accorded equal repr
Committee. Membership on the Committee w
to the representatives of other groups whose ex
have been sought by the Commissariat. Respe
representation, Article I09 explicitly provided th
tee shall include nationals of each of the mem
members were to be appointed by the Council and
sonal capacity for a two-year period.'90 Unlike
185. "A Minister of Defence would be named by the participa
would be responsible, in a manner which remains to be determined,
him and to a European Assembly. . . . His powers with respect
would be similar to those powers which a Minister of National D
spect to his own country's forces." Ambassade de France, Service de
Doc. No. 23, at 3, Oct. 23, 1950.
During the discussion of the EDC Treaty the proposal for one,
sioners was abandoned; instead consideration was given to a propo
commissioners equal the number of Member States. The big State
members since they were unwilling to accept absolute equality of
PORT WIGNY 51.
186. Rolin, The European Defence Community in 38 THE GROT
ACTIONS FOR THE YEAR 1952 8 (1953).
187. EDC TREATY Art. 26. The function of each Commissione
termined by the Commissariat.
It was proposed that there be a President, who was to co-ordinate
commissioners, insure the implementation of the Commissariat's
sible for the administration, id. Art. 26(2); a Vice-President; Com
Forces, for Economic Affairs and of Finance, each assisted by a
Portfolio, and a Commissioner for General Administration. Each
Commissioner in one of the six main posts. See RAPPORT WIGNY
189. Id. Art. 109, 2.
190. Id. Art. 109, If 3. The EDC Treaty has no provision similar to Art. 18, If 3, of
the ECSC Treaty, which provides that the Community's Council of Ministers designates
the representative organizations that are to prepare lists of their candidates. From the
lists the Council elects the members of the Consultative Committee. See also Bebr, The
European Coal and Steel Community: A Political and Legal Innovation, 63 YALE L.J. 1,
17 (1953).

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Committee of the Coal and Steel Com

as an advisory body and as an instrum
est groups, this Committee was to perf
Under no circumstances was the Com
is the High Authority of the Coal and
with the Committee.19'
The Common Assembly of the EDC w
Assembly of the Coal and Steel Commu
representation and the mode by whi
elected.'92 There was only one except
were to be assigned to each of three
the German Federal Republic.'93 How
Assembly under EDC were to be greater than it exercises un-
der the Coal and Steel Community. The Assembly not only was
to approve the Commissariat's annual report'94 and to play an im-
portant role in preparing and approving the Community budget,'95
but it also would have been authorized to effect the Commissariat's
resignation almost at any time.'96
The Council of Ministers' membership was to represent the
Members of the Community. Each Member was to have one repre-
sentative who, as the Treaty explicitly prescribed, had to be a mem-
ber of the government in power.'97 Such representation seemed
preferable to civil service representation in that it would have per-
manently and directly linked the Council to the governments in
power. This sort of link was particularly important because the
Council was to issue directives and give general policy guidance
to the Commissariat and harmonize the actions of the Members
with those of the Commissariat.'98 The power of the Council to
issue directives as well as the requirement of its concurrence in
191. Consequently the Conimissariat's failure to do so would not have been a ground
for appeal attacking the validity of the acts. But see RAPPORT 19 and BINDSCHEDLER,
RECHTSFRAGEN DER EUROPXISCHEN EINIGUNG 273 (1954), maintaining that the Com-
missariat was to consult the Consultative Committee. The text of the Treaty does not
support such an interpretation.
192. Compare EDC TREATY Art. 33(1), with ECSC TREATY Art. 21.
193. Even so, the Assembly would not have been a deliberative body for it lacked
power to take positive action and make binding decisions. RAPPORT WIGNY 103.
195. Id. Arts. 87(3); 87(4).
196. Id. Arts. 34, f1 2; 36(2).
197. Id. Art. 40, ?T?T 1-3. See MENDks-FRANCE PROPOSAL 5 VII(2), suggesting ad h
meetings of a Council composed of representatives of the governments; it also propos
British participation at meetings concerning the co-operation of the Community with t
United Kingdom.
198. EDC TREATY Arts. 39(1), 39(2).

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certain acts of the Commissariat, would have assured

a share in formulating the Community's defence pol
The Court of Justice was to be common to both th
Coal and Steel Community and the EDC.200 The Treat
ing the Coal and Steel Community prescribes no n
quirement for the Court's judges.201 Thus a person
a national of a Member State appeared to be eligible and quali-
fied to sit in judgment even on defence matters.202
Though the Court would have served both Communities, the
supranational power granted to it by the two treaties differed. Un-
der the EDC Treaty the Court was to have, in addition to original
and exclusive jurisdiction over the legality of the acts of the Com-
munity organs,'O3 appellate jurisdiction over civil actions to recover
damages for injuries inflicted by the Community's deficient admin-
istration or by the operation and maintenance of the Defence
Forces20' as well as appellate jurisdiction over criminal actions
against members of the Defence Forces.205 If the Community was
to cope with the potentially vast number of such cases, it was es-
sential that the Community's judicial power be decentralized. To
that end the Treaty provided that the Community's judicial system
was to include, besides the Court, Indemnity Commissions and pro-
visional European Criminal Tribunals.206 The decisions of both the
Indemnity Commissions and the Criminal Tribunals were to be
sublject to review by a regional section of the Court, composed of a
199. There was no provision in the EDC Treaty which would have prevented the
legislature of a Member State from instructing its representative on the Council as to vital
matters. Thus a State's parliament could have indirectly intervened in the Council pro-
ceedings. For further discussion, see RAPPORT WIGNY 27-28.
201. ECSC TREATY Art. 32, 11 1. For further comment, see Bebr, The European Coal
and Steel Community: A Political and Legal Innovation, 63 YALE L.J. 1, 19 and n.133
(1953).
202. In view of this possibility, it might have been anticipated that the Member States
would have always elected their nationals, particularly since the EDC Treaty reserves the
membership in other EDC organs to the nationals of the Member States.
203. EDC TREATY Arts. 54-58.
204. Id. Art. 60; EDC JURISDICTIONAL PROTOCOL Arts. 1-17.
205. EDC TREATY Art. 61; EDC JURISDICTIONAL PROTOCOL Arts. 18-30.
206. Id. Arts. 10, 22, 23.
The Indemnity Commissions were to consist of the president (a national of the host
State), a member who was a national of one of the other Member States, and a third member
appointed from among the members of the Forces by the European military authority in
charge of the region concerned. Id. Art. 10(2). The composition of the European Tribunals
which were to exercise criminal jurisdiction over the members of the Forces was, for the
time being, to be strictly national and regulated by domestic legislation of the States. Id.
Arts. 22(2), 23. However, the European Tribunals would have been supplanted by a new
judicial organization as soon as the Members enacted a common military penal law ap-
plicable throughout the Conmmunity. Id. Art. 19.

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March I955] EDC AND WEU 205
judge from the Court and four Com

to assist him.207
The Western European Union

When contrasted with the elaborate institutional pattern of the
EDC, fusing as it did national interests with higher Community
interests, the structure of the WEU appears very conventional. The
Union will rely heavily on the traditional method of multilateral
co-operation between States, the "conference method." There is
no organ comparable to the EDC's Commissariat, its Common
Assembly,208 or its, Court of Justice, an organ independent of the
Member States.
The Council, the supreme authority of the Union, resembles
in its composition the Council of the EDC.209 Although there is
no specific provision as to the rank of the Members' representatives,
it can be assumed that the Members will be represented by their
Foreign Ministers,210 at least if the previous practices of the Brus-
sels Treaty Organization are any indication. Since the Council is to
exercise its functions continuously, the Permanent Commission of
the original Brussels Treaty Organization-composed of the heads
of the diplomatic missions stationed in London and a special Brit-
ish representative21-can be called upon to assist the Union's Coun-
cil in performing its tasks.
The Agency for the Control of Armaments is the control organ
of the Union.2"2 Controlling the level of stocked arms and enforc-
ing the provision prohibiting Germany from producing strategic
arms will be an extremely difficult task requiring vast technical
knowledge on the part of the inspecting agents. In many instances
the agents will be faced with the necessity of interpreting the con-
trol clauses of the Protocol, yet the Protocol does not define the
207. Id. Arts. 12, 13, 22(2).

208. PROTOCOL MODIFYING AND COMPLETING THE BRUSSELS TREATY Art. V does make
provision for "an Assembly" but does not spell out its powers. The provision is so vague
that the proposed Assembly cannot be compared with the Common Assembly of the EDC.
209. Id. Arts. IV(1), IV(2).
210. See the communique issued by the Foreign Ministers of the Brussels Treaty P
ers, April 17, 1948, reproduced in the British White Paper, Collective Defence Under
Brussels and North Atlantic Treaties, CMD. No. 7883, at 16 (1950).
211. Id. at 16-17. At its first meeting the Council of the WEU decided to establi
permanent civilian secretariat in London, headed by a Secretary-General and assiste
three Assistant Secretaries-General, one of whom is to head the Union's Standing A
ments Committee in Paris. N.Y. Times, May 8, 1955, p. 1, cols. 3-4.
212. PROTOCOL No. IV ON THE AGENCY OF WESTERN EUROPEAN UNION FOR THE C
TROL OF ARMAMENTS Art. 7.

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necessary qualifications of the Agency's personnel. It mer

vides that the Agency is to consist of a Director, his depu
staff, all of whom must be nationals of the Member States
dently civilians and military personnel are eligible to
agents. The Protocol is equally silent as to the stationin
control agents. Is inspection to be visitorial, with Paris as t
quarters of the Agency,214 or is it to be conducted by re
spectors?215 No less serious a shortcoming is the absen
provision disqualifying an agent from making inspectio
own State.
With respect to the implementation of armament cont
Agency is responsible to the Council.2"' With the exceptio
duty not to disclose information obtained while fulfilling
cial function,217 the rights and duties of the Agency's m
are undefined. Unlike the inspecting agents of the Comm
who were to enjoy those rights and powers granted by law
State concerned to its own agents,218 the agents of th
Control Agency are granted no immunity with respect
official acts. Apparently agents are not even forbidden to
and solicit instructions from their governments.219 A
could legitimately approach its nationals serving on the
and make them tools for effecting national policy. Th
lack of independence is, in view of the Agency's purpose,
defect.
POWERS OF THE ORGANS
The European Defence Community

Types of Powers. The framers of the EDC Treaty sought to
distribute the powers of the Community among its organs in such a
fashion as to assure the Community an adequate concentration of
213. Id. Art. 1. "The Director shall be appointed by a unanimous decision of the
Council for a period of five years. . . " Id. Art. 3. Admiral Ferreri of Italy was ap-
pointed Director of the Agency. N.Y. Times, May 8, 1955, p. 1, cols. 3-4.
214. Statement by Sir Anthony Eden, British Secretary for Foreign Affairs, in the
House of Commons, Oct. 25, 1954. 531 H.C. DEB. (5th ser.) 1604 (1954).
215. For further discussion of the problem, sec Morgan, Disarmament of Germany and
After, 242 QUARTERLY REV. 454 (1924).
216. WEU PRo-rocoL No. IV Art. 1.
217. Id. Art. 6. Note that the general reference of Art. 6 to the NATO Codc of
Security does not indicate the precise cxtent of the official duties.
219. Resolution No. 66, passed by the Consultative Assembly of the Council of Europe
on Dec. 8, 1954, seems to confirm this interpretation. Council of Europe Ncws, January
1955,p. 11

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March I9551 EDC AND WEU 207
independent powers without depriving

tection of their national interests. Fo
Community powers may best be classif
of governmental participation required
Treaty provided for three sorts of pow
ers to be exercised entirely independen
supranational powers to be exercised
process of the Commissariat and the
national powers to be reserved to the C
Supranational Powers.-Within narro
economic spheres the Commissariat w
ample, the Commissariat was to conduc
plan the training of the Forces22"-ver w
disciplinary and administrative powers
to certain lower commissions.223 Simil
to prepare military and economic mobi
within the limits imposed by the Sup
mendation, where the Forces of the C
tioned within the Community.225 In th
missariat was empowered to control th
industry by licensing the production
export or import and by placing defenc
the Commissariat was to supervise.228
perform these functions efficiently, it
power to request information from i
the States and to have the informatio
Treaty so provided.227 In exercising
sariat would have dealt directly with t
those individuals and enterprises eng
tion, and the States.
Most supranational powers were to
220. EDC TREATY Art. 73(3). The date was to be f
Members.
221. Id. Art. 74(1).
222. Id. Arts. 78, 79.
223. Id. Art. 31, ITF 3(b), 4.
224. Id. Art. 75 (in consultation with the Member States).
225. Id. Art. 77(1).
226. Id. Arts. 104(3), 106, 107(3). Furthermore, the Commissariat, in consultati
with the Members, was to prepare plans for the mobilization of economic resources.
Art. 111.
227. Id. Arts. 108(1), ??ff 1, 2; 114(1).

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missariat acting by the vote of a simple majority

deal with the great variety of problems present
missariat would have had to resort to a highl
for exercising its powers. Depending on the n
ter before it, the Commissariat might have issue
mendations or mere opinions.229
i. Decisions were to be the Commissariat's mos
acts. They were to define not only the results s
missariat but also the means of attaining them.
of a decision would have been the issuance of
izing an enterprise to produce specified war mat
2. Recommendations, on the other hand, we
objectives, leaving the enterprise or State free to
means of attaining the designated objective. In a
Commissariat would have used the recomme
quently with regard to States because of the leew
left. For example, the Commissariat might ha
mendation to a State that recruiting be carried
with the provisions of the Treaty.28'
3. Opinions were to lack any binding force.
were mere guidance to Members or enterprises.
The Court of Justice was, upon the Commissa
impose sanctions against violations of Treaty pro
acts of Community organs.282 To enforce those s
munity had to avail itself of the assistance an
States were bound to render.238 In order to prese
ence of the Court, the Treaty provided that t
court was to enforce the judgment of the Comm
mere verification of its authenticity, according
State's rules of procedure.28' Moreover, only the
228. EDC TREATY Art. 24(1). However, "no decision may be

four affirmative votes." Ibid.
The MENDES-FRANCE PROPOSAL ? II(3) would have enabled
control the Commissariat: "For eight years after the Treaty com
which a Council member considers as affecting its vital interest
request so as to permit conciliation between the Council and
SPAAK DECLARATION ?? 3(A)-3(C) proposed that decisions on im
proved by vote of a majority of the members of the Commissariat.
230. Id. Art. 107(3).
231. Id.Art.73(2).
232. Id. Arts. 107(6), 108(2); EDC JURISDICTIONAL PROTOCOL Art. 18.
234. Id. Art. 66.

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on the validity of those acts of the

ings of the Council which had bee
courts.235
Limited Supranational Powers.-T
limited supranational powers-i.e., po
Commissariat would have needed th
Generally concurrence was necessar
financial questions profoundly affe
Concurrence was to range from sim
to unanimity, depending on the nat
be decided.
Absolute equality of voting power
of each State's individual military c
unrealistic under the EDC. The Treaty therefore provided that
each Member's vote be weighted acording to the State's financial
and military contribution to the Community for the preceding
year. The system was to be applied in computing the Council's vote
both on matters as to which the Treaty required the Council's con-
currence with the Commissariat and on matters exclusively within
the Council's domain.236 In the case of the simple majority concur-
rence prescribed as to matters where the size of the Member's con-
tribution was irrelevant-for example, the approval of an agree-
ment by which the Community would receive external aid237-
the Treaty required weighting of the vote only where there was
a deadlock. Then that side was to prevail which included the
States representing a two-thirds majority of the total contribu-
tions made.238 Presumably this provision would have meant that
two of the three big powers-France, Germany and Italy-together
with one of the Benelux countries could have swung "the majority"
required by the Treaty.
The attainment of a two-thirds majority would have required a
similar "majority" of the contributions.239 The concurrence of two-
thirds of the States would have been insufficient if the prescribed
"contribution requirement" were not met. To some extent this
rigid voting rule would have been mitigated by a provision per-
235. Id. Art. 62.

236. Id. Arts. 43(1), 43(2).
237. Id. Art. 99, 11 2.
238. Id. Art. 43(1).
239. Id. Art. 43 (2).

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STANFORD LAW REVIEW [Vol. 7: Page I69
mitting the attainment of a two-thirds majority by a vote of any

five States, regardless of their total contributions.240
The concurrence of a two-thirds majority would have been
necessary to authorize the Commissariat to permit a withdrawa
of national contingents for the fulfillment of an international mis-
sion24' or to settle military, economic and financial difficulties
caused by any such withdrawal.242 The Commissariat's decisions
on armament programs involving long-standing financial com-
mitments by the Community were also conditional on concur-
rence by a two-thirds majority of the Council.243
Since the security of the individual States would have been
inextricably tied up with the strength and location of the Com-
munity Defence Forces, it was natural that the Commissariat
would have been required to have the Council's unanimous con-
currence as to any acts involving the Force's strength and loca-
tion. Such joint decision-making was, for example, mandatory
with regard to any decision to station Forces outside the Commu-
nity.244 It would also have been mandatory where the appointment
of officers to ranks higher than those commanding nationality units
was involved.245 Similarly, the Commissariat had to secure the
Council's unanimous concurrence, besides the recommendation of
the NATO Supreme Commander, in order to form a single-nation-
ality army corps, which might have been required for tactical and
organizational reasons.2" These acts raised delicate problems of
reconciling the efficacy of the Forces with the integration of the
basic nationality units. The creation of a single-nationality army
corps or the injudicious choice of officers might have resulted in
concentration of great power in the hands of persons of one nation-
ality, a potentially dangerous situation. The viability of and con-
240. This provision would have been particularly important if any Member contrib-
uted one-third or more of the total defence requirements. In the absence of this provision,
such a Member alone could have blocked the Council's action. The determination of de-
fence contributions would have been strongly influenced by attempts to prevent a Member
from obtaining a dominant position.
241. EDC TREA[-Y Art. 14, ?f 1.
242. Id. Arts. 13, 1 2; 14, ? 2.
243. Id. Art. 103(2). See also Arts. 104(4), 107(5); EDC JURISDICTIONAL PROTOCOL
Art. 17.
244. But within the territory covered by the North Atlantic Treaty. EDC TREATY
Arts. 120(2a), 120(2b). For the deployment of Defence Forces or military schools and
installations of the Community outside the NATO area, the prior parliamentary approval
of the Members, consultation with the North Atlantic Council and prior consent of the
NATO Supreme Commander would have been required. Id. Art. 120(3).
245. Id. Arts. 31(1), 31(3a), 31(4); EDC MILITARY PROTOCOL Art. 23(2).
246. EDC TREATY Arts. 68(2), 69(2).

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March I955] EDC AND WEU 2II
fidence in the common Forces migh

The strong position of the Council in relation to the Com-
missariat is also demonstrated by Article I24. The framers of the
Treaty could not have foreseen all possible situations which might
require the action of the Commissariat. A situation might arise
where the Commissariat's decision or recommendation appeared
"necessary to ensure the proper functioning of the Community
and the realization of its purposes" but was not provided for
by the Treaty. In such a situation, the Commissariat could have
acted only with the unanimous concurrence of the Council.24
As a rule the Commissariat's limited supranational powers were
to be contingent on the Council's preceding concurrence, but in
some instances the Council might have been requested by a Mem-
ber or by the NATO Supreme Commander to approve or disap-
prove a Commissariat act after the event. The instances were rela-
tively few. A State might have challenged the Commissariat's rec-
ommendation that the Member improve those of its military instal-
lations used exclusively by the Forces or its public services. If the
Council approved the Commissariat's recommendation by a two-
thirds majority, the State would have been obliged to yield.248
The Council was to have similar power to approve or disap-
prove the Commissariat's decisions as to the stationing of the De-
fence Forces.249 But the machinery for the exercise of that power
was extremely complex because the NATO Supreme Commander,
not the Community, was to have strategic command over the
Forces.250 The Commissariat might have stationed Forces within
the Community after consultation with the host State but with-
out the Council's concurrence. If the host State disagreed with
the Commissariat's decision, it could have challenged that decision
247. Id. Art. 124, 1 1.

248. EDC CONVENTION RELATIVE TO THE STATUS OF EUROPEAN DEFENCE FORCES
Art. 21(1), ?11 3-5. A similar procedure would have been followed had the Commis-
sariat acted to build or extend military installations. Id. Art. 18(1), 11 2. However,
there would have been a difference between the two situations. Where public services were
involved, the Commissariat would have made recommendations that would have left the
Member State free to choose the proper means of remedying the situation. In the case of
military installations used exclusively by the Forces, the Commissariat would have made
decisions depriving the Member of any such choice. The difference may be explained by
the fact that public services were to be used by both the Member and the Community, a
consideration absent in the case of military installations.
250. The Commissariat could have stationed Forces in and outside the Community
only in accordance with the recommendations of the NATO Supreme Commander. Id.
Art. 77(1).

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
before the Council. The approval of a two-thirds majority would
have validated the act of the Commissariat.25' If, however, the
Commissariat and the Supreme Commander differed as to terri-
torial deployment of the Forces, only a unanimous Council could
have overruled the Commander's recommendation and upheld the
Commissariat's stand.252 Thus a single dissenting vote on the Coun-
cil would have been enough to enable the Commander to main-
tain his position.
National Powers.-Although the Defence Community closely
followed the institutional pattern of the Coal and Steel Commu-
nity, the distribution of powers among their organs differed
greatly.253 Unlike the High Authority of the Coal and Steel Com-
munity, which has substantial supranational powers, the Commis-
sariat's supranational powers were to be meager-largely admin-
istrative and executive in nature.254 Conversely, the Council's
powers were to be increased.255 In the operation of the Defence
Community the Council was to be pre-eminent, ruling supreme
over Community defence policy and armament programs. To
that end, the Treaty provided that "the Council may, within the
framework of the present Treaty, issue directives for the action of
the Commissariat."25" Presumably the sweeping language of this
provision would have entitled the Council to step in at any time
and in any situation and direct the Commissariat to take certain
action; broadly interpreted, the provision might authorize inter-
vention even in those instances in which the Commissariat would
have had supranational or limited supranational powers. So inter-
preted, there would seem to have been no limit to the Council's
power to issue directives. But the requirement-subject to few ex-
ceptions-that such directives receive the unanimous approval of
251. Id. Art. 77(2).

252. Id. Art. 77(1).
253. But see Bowie, The Process of Federating Europe in FEDERALISM MATURE AND
EMERGENT 504 (McMahon ed. 1955).
254. Council of Europe, Consultative Assembly, Committee on General Affairs, Re-
port on the European Defence Community, Doc. No. 6, 4th Ord. Sess. 84-85 (1952).
255. The proposition that "the supranational character of the European Defence
Community is more pronounced," as maintained by Kunz, Treaty Establishing the Euro-
pean Defence Community, 47 AM. J. INT'L L. 277 (1953), is refuted by a cursory analysis
of the Council's powers.
256. EDC TREATY Art. 39(2). These directives would have been binding on the
Commissariat although the Treaty itself did not so specify. See the interpretative Doc. PARL.
211; see also BINDSCHEDLER, RECHTSFRAGEN DER EUROPXISCHEN EINIGUNG 303 (1954).
The issuance of a directive must be distinguished from a mere invitation to act ad-
dressed by the Council to the Commissariat in accordance with Art. 46 of the EDC Treaty.

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March I955] EDC AND WEU 2I3
the Council might have been an important practical limitation.

Absent the Council's unanimity the Commissariat would have
preserved its prerogatives.257
Besides the power to issue general directives, the Council was to
have exclusive power with regard to certain matters of defence
and armament policy, certain vital administrative issues and lim-
ited Treaty revision. By the vote of a two-thirds majority the Coun-
cil might, for instance, have issued general directives for the prep-
aration and execution of common armament and equipment pro-
grams258 or for a Member's economic, financial and social stabiliza-
tion necessary as a result of external aid received or granted by the
Community.259 Similarly, the Council was empowered to end
temporary emergency powers previously instituted and restore the
powers of normally competent organs.260
The establishment of emergency powers was to be the most im-
portant matter requiring the Council's unanimous action.26' The
Treaty did not provide for common conduct of foreign affairs.
But it did provide that in times of emergency the lack of co-ordi-
nation in the conduct of political and military affairs might be
alleviated, in part at least. In the event of "serious and urgent
necessity" a unanimous Council might have temporarily assumed
or conferred "upon the institutions of the Community or other
appropriate organizations, such powers as are necessary to meet
the situation, within the limits of the general mission of the Com-
munity."262 One such case would have been armed aggression
against the Defence Forces or a Member of EDC or NATO. But
presumably a domestic revolt endangering a Member's or the Com-
munity's security would also have justified the exercise of emer-
gency powers. The only power expressly excluded from the broad
class of emergency powers was the power to send Forces into action
against the aggressor.263 And it is conceivable that the class of
emergency powers, limited only by a vague reference to Commu-
257. RAPPORT 14; Doc. PARL. 210.

259. Id. Art. 99, f1 5.
260. Id. Art. 123(2). A two-thirds majority would have been required to choose
a common currency in which the budget was to be established, id. Art. 89(2); or to issue
general directives as to the furnishing of information by the Members and its verification
by the Commissariat's agents, id. Art. 114, jf 2.
261. Id. Art. 123 (1).
262. This phrasing would evidently have precluded a delegation of power to a single
individual. See RAPPORT WIGNY 87.

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2I4 STANFORD LAW REVIEW [Vol. 7: Page I69
nity objectives, was to have been so broad as to inclu

strictly related to military affairs. The institution of
omy," the requisition of transportation systems or p
the conduct of foreign affairs on some rudimentary
have been within the purview of the emergency powe
save in an extreme emergency these powers could no
stretched too far because of certain political consider
States' legislatures, whose approval might have been
some actions, might not have gone along. That the n
national legislative approval was a distinct possibility
by Article I3I; that obscure Article provided that the
visions be "applied in accordance with the constitutional rules of
the member States."28'
Unanimity was also required as to certain other matters. In
the economic sphere only a unanimous Council could have taken
measures against serious restrictive business practices or acted to
remove obstacles to the execution of some armament programs.265
With regard to the Community's foreign relations, a unanimous
Council was empowered to admit new Members,266 grant assistance
to third States267 and adjust relations between the Community and
NATO.268 A unanimous Council could also have reduced the
number of members on the Commissariat269 and modified the
exercise of the Commissariat's power so long as the action did not
affect the Community's institutional structure and the distribution
of its powers.270 The change would have become effective at once.
Neither the Court nor the Assembly need have examined or at
proved an amendment.27' Any other Treaty revision could have
been carried out only by a conference of the Members, initiated by
one of them and convened by a two-thirds majority vote of the
Council.272 Such a revision would have to have been ratified by all
States.
264. See BINDSCHEDLER, op. cit. supra note 256, at 265.
265. EDC TREATY Arts. 104(7); 105, ?11 1-2. In both instances the Commissariat was
to determine the existence of such a situation.
266. Id. Art. 129. Before taking a vote, the Council was to request the Commissariat
for its opinion.
267. Id. Art. 99, ir 3.
268. Id. Art. 48.
269. Id.Art20(1),?13.
270. Id. Art. 125.
271. But see ECSC TREATY Art. 95, 11 4.

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
March I955] EDC AND WEU 2I5
Delegation of Powers. As a rule the Commissariat and the

Council could not have acted on behalf of one another. For ex-
ample, only the Commissariat was to license the production of war
material,273 and only the Council was to be competent to admit new
Members or determine the general organization of the Forces and
their size.27' But there were to have been a few exceptions to this
principle. It was to be completely ignored if an emergency was
declared and emergency powers instituted ;27' a general delegation
of powers to the Council or any other organ designated by it would
have been permissible. An organ's failure to act would have been
another ground justifying delegation. Thus the Treaty permitted
delegation when the Council was unable to reach a unanimous
agreement regarding the measures necessary to remove economic
obstacles hindering the fulfillment of the defence programs.276 In
such a situation the issue would have been taken up by the Com-
missariat, which might have made recommendations for solution
of the problem after consultation with the Member.277 A delega-
tion of power was also to be permitted if the Commissariat failed to
comply with the Council's request to take action which appeared
necessary, even though not provided for by the Treaty. By a simple
majority the Council might have acted itself.278
Budgetary Powers. The Community's budgetary powers were
to be exercised jointly by the Council and the Assembly.279 After
a preliminary preparation of the budget by the Commissariat,
the Council was to determine by unanimous vote the total budget-
ary appropriation, the distribution of expenditures and the amounts
of the Members' contributions.280 Within the limits of the pro-
posed total expenditure the Assembly could have annulled, re-
273. Id. Art. 107 (3).

274. Id. Arts. 44, 71, 129.
275. Id. Art. 123(1).
276. Id. Art. 105, 1 3.
277. Such a recommendation would have been subject to the Council's review. But
the Commissariat might have defined its aims so narrowly that only a few remedies would
have been available to the Member State. If, for example, the Commissariat had declared
that high prices in a State obstructed the defence program, it would thereby have reduced
the choice of remedies to state subsidies or perhaps to price controls. The State concerned
might have considered such measures unfeasible or been unwilling to resort to them; it
might have even disagreed with the Commissariat as to the origin of the difficulty. Per-
haps it was for this reason that the State would have been given the opportunity to bring
the issue before the Council, which could have disposed of it by a simple majority vote.
279. Id. Art. 87(1).
280. Id. Art. 87(2). The distribution of expenditures had to be approved by a two-
thirds majority of the Council.

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2I6 STANFORD LAW REVIEW [Vol. 7: Page I6X
duced or increased individual items of revenue or e

Though authorized to reduce total expenses, the Ass
be barred from increasing them. Only if it rejected the entire
budget by a two-thirds majority could the Assembly have attacked
the inadequacy of total expenditures.282 However, the Commis-
sariat or any Member might have asked the Council for a second
reading of a revised or rejected budget.283 Thus the Council would
have been enabled to take a stand on the Assembly's proposals. If
approved by a two-thirds majority of the Council, the Assembly's
amendments would have been adopted. Only if the Assembly's
amendments had substantially modified the original budget would
a request for a second reading have been likely. For that reason, the
Treaty further provided that an amendment was presumed to have
been adopted by the Council if no request for review was made
within fifteen days of the Assembly's vote on the amendment.
The Western European Union

The WEU has no exclusive or limited supranational powers.
That fact and the limited objectives narrowing the scope of the
Union's powers permit a very simple institutional structure. An
organ representing the Member States-the Council-suffices. In-
stead of the elaborate decision-making process proposed by the
EDC Treaty, the WEU Protocol provides that all decisions are to
be made by the Union's Council. The Council may act by a sim-
ple majority vote or in certain instances by a two-thirds major-
ity or unanimous vote. The fact that the votes of the Members
are not weighted is understandable since the Union is a loose organ-
ization lacking a common defence budget.
By the vote of a simple majority the Council can determine
the number of ABC weapons to be held on the European main-
land284 and deal with any matters submitted to it by the Control
Agency.285 Most such matters will involve violations of those
provisions prohibiting armament production or fixing the permis-
sible level of stocked arms. Since only a simple majority vote is
required, no State violating the armament controls could frustrate
281. Id. Art. 87(3), 111 1-2.

282. Id. Art. 87(3), ? 3.
283. Id. Art. 87 (4).
285. WEU PROTOCOL No. IV Art. 20(4).

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
March 1955] EDC AND WEU 2I7
the Council's decision to take those "measures it deems neces-

sary" to effectuate control-e.g., destruction of illegally produced
war material and removal of machinery used for such produc-
tion. However, the enforcement of those measures may still be
endangered, since the implementation of any decision will, of
course, depend on the co-operation of the State concerned. It
should also be noted that under no circumstances can sanctions be
imposed against the violating State.
The list of matters on which the Council cannot act by a simple
majority vote is long. The votes of two-thirds of the Council's
Members are required to modify the prohibition placed on Ger-
many's armament production.286 To allow a change in the strength
of internal defence forces,287 to alter the list of war materials to
be controlled by the Agency288 or to admit new Members, the
Council must act unanimously.289 The same requirement of un-
animity applies should the Council desire to permit a Member
to increase the number of troops placed under SACEUR's com-
mand. This restriction is the most important means by which
France or, for that matter, any other Member can control the
strength of the German army.290
The Council will also have limited power to control the with-
drawal of British troops pledged to the Union. Their withdrawal
from the European mainland cannot, in general, be effected
"against the wishes of the majority of the High Conitracting Parties
who should take their decision in the knowledge of the views
of" SACEUR.29' But the value of the British guarantee so eagerly
sought by France may be slight. The peculiar phrasing of the
Protocol seems to suggest that withdrawal would be permissible
even if there were a deadlock within the Council. More impor-
tant, Britain may be able to muster the approval of a majority,

288. WEU PROTOcoL No. III Art. 5.
289. Original Brussels Treaty, Art. IX.
290. WEU PROTOCOL No. II Art. 3. It must be noted that the Council's power to
limit the size of a Member's army extends only to armed forces under SACEUR's com-
mand. Forces outside his command may be increased by a Member without the Council's
consent. Should France, for example, decide to expand its overseas forces it could do so
without interference. Germany, however, will not be able to take advantage of the Coun-
cil's limited power. All of Germany's forces will be subject to the Union's control, since
all will be placed under SACEUR's command.
291. Id.Art.6.

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2I8 STANFORD LAW REVIEW [Vol. 7: Page I69
probably the votes of the Benelux countries"' and possibly tha

Germany. Finally, the development of "an acute overseas emer-
gency"-as recognized by the British Government-would jus-
tify withdrawal of the troops regardless of the Council's disap-
proval.2"3
As previously mentioned, the control of armament is carried
out by the Agency; but the measures to be taken are decided upon
by the Council, to which the Agency reports any infractions.294
Thus, unlike the EDC's Commissariat, which was to conduct a
supranational production control independently of the States, the
Union's control is strictly governmental. Even though a simple
majority of the Council can override a minority,295 the Council's
power cannot be considered supranational, for the members of the
Council are governmental representatives who will vote in accord-
ance with the instructions of their governments.
SAFEGUARDS
The Defence Community's powers over defence matters wou

have substantially impaired the States' originally exclusive pow
to supervise and direct national defence. Consequently, it w
essential that the Treaty establish sufficient political and judic
safeguards to guarantee that the Community would properly d
charge its responsibility for the common defence.
POLITICAL SAFEGUARDS
Political safeguards were to be found in the institutional str
ture of the Community and the pattern in which its powers w
distributed-subjects discussed earlier in this Article, but on
which might profitably be summarized at this point. Because of
extremely sensitive field in which it was to operate, the Comm
sariat was to be more strictly controlled than its counterpart in
Coal and Steel Community. One control was to be the Coun-
cil's directives to the Commissariat; another, the requirement that
292. For the history of British relations with the Low Countries, see WOLFERS, BRITAIN
AND FRANCE BETWEEN Two WARS 229-30 (1940).
293. WEU PROTOCOL No. III Art. 3; WEU PROTOCOL No. IV Art. 7(2b). It should
be observed that Britain's position has become something of an anomaly since the intro-
duction of armament control by the Union. Britain is under the control of the Union and
its Agency only so far as her armed forces stationed on the Continent are concerned.
Britain's own armament production and stocks of arms in the Isles are outside the Union's
control. Yet despite the Union's limited control, Britain retains an unimpaired position
on the Council.
294. Id. Art. 20. 295. Id. Art. 20(4).

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the Council concur in certain act

trols alone would have been gove
national control was to be exercis
der the EDC Treaty, would have
attributes of a supranational parl
the Assembly, in reviewing th
could have censured the Commissariat by vote of a two-thirds
majority and thus effected its collective resignation.29" But appar-
ently the exercise of this right of censure was not to be restricted
to ordinary sessions alone. Evidently a vote of censure would have
been equally permissible in an extraordinary session held at the
request of the Council, the President of the Assembly or a majority
of its members.297 The Council or any Member might also have
called upon the Assembly to decide a controversy298 between the
Council and the Commissariat over the Commissariat's alleged
refusal to follow the Council's instructions "to take any measure
within the limits of its competence." And after examining the
Commissariat's alleged violation of its duties, the Assembly might
have moved for the Commissariat's dismissal. Thus the Commis-
sariat, unlike the High Authority of the Coal and Steel Commu-
nity, was to operate under the permanent supervision of the As-
sembly.
Since State powers are largely preserved under the WEU, there
are no political safeguards similar to those of the EDC. The Council
is competent to deal with but few issues and its rigid voting pro-
cedure appears to be a sufficient guarantee of the States' interests.
The Council's commitment to submit an annual report on the
activities of the Union to "an Assembly composed of representa-
tives of the Brussels Treaty Powers to the Consultative Assembly
of the Council of Europe"299 is, at least for the time being, nothing

297. Id. Art. 34, 1 2. Art. 46 seems to confirm this conclusion. But see ECSC TREATY
Art. 24, II 2, which confines the Assembly's exercise of its right to censure the High Au-
thority to its regular annual meetings.
299. PROTOCOL MODIFYING AND COMPLETING THE BRUSSELs TREATY Art. V. See also
the comment by Sir Anthony Eden, British Foreign Secretary. 533 H.C. DEB. (5th ser.)
414 (1954). At its first meeting the Council of the WEU decided that the Union's As-
sembly would meet in Strasbourg at the same time as the Consultative Assembly of the
Council of Europe convenes. N.Y. Times, May 8, 1955, p. 1, col. 4.
Article V is broader than the provision proposed at the London Conference, Final Act
S II(12), which provided only for a report of the Council on the "activities concerning the
control of armaments...." See the comment by Robert Turton, Joint-Undersecretary of
State for Foreign Affairs. 533 H.C. DEB. (5th ser.) 523 (1954).

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but a formality. Since the Protocol has left the pur

of the Assembly in complete darkness, the Assemb
-no rights whatsoever. At best it may develop in
the expression of public opinion.
JUDICIAL SAFEGUARDS
Judicial control of the EDC was to be vested excl

Court of Justice and its subordinate bodies, which
"the rule of law in the interpretation and applicatio
Treaty and its implementing regulations."300 T
have an original and an appellate jurisdiction. I
original jurisdiction the Court would have function
tutional and administrative tribunal. It was auth
view and annul acts of the various Community org
of legal deficiencies,80' (2) review and modify the ac
missariat on grounds of policy302 and (3) settle certa
disputes between Member States.303 But it would h
densome for the Court to adjudicate tort claims be
uals and the Community or to entertain criminal a
members of the Forces. Thus the judicial power o
and criminal matters was to be decentralized a
to local Indemnity Commissions and the Europ
respectively,30' and possibly to regional sections of
Justice over whose decisions the Court would ha
limited appellate jurisdiction.305 The nature of the
judicial power not only indicated the extensive
Community and their direct effect on the individua
but also pointed toward the emergence of a new po
zation, the European Political Community.306
The Brussels Treaty, on the other hand, does
special judicial system; the Member States are m

301. Id. Arts. 54, 57, 58.
302. Id. Art. 56.
303. Id. Art. 65.
304. Id. Art. 53; EDC JURISDICTIONAL PROToCOL Arts. 10, 22.
305. Id. Arts. 12, 13.
306. For the text, See AD Hoc ASSEMBLY INSTRUCTED TO WORK OUT A DRAFT TREATY
SETTING UP A EUROPEAN POLITICAL COMMUNITY, DRAFT TREATY EMBODYING THE STATUTE
OF THE EUROPEAN COMMUNITY (Doc. 15 R, 1953). For further discussion, see Robertson,
The European Political Community, 29 BRIT. Y.B. INT'L L. 383-401 (1953). See also
Karp, The Draft Constitution for a European Political Community, 8 INT'L ORGANIZATION
181-202 (1954).

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settle their disputes peacefully.

caused by and criminal actions
forces placed under NATO command is governed by the Agree-
ment on Status of NATO Forces;308 the Agreement leaves jurisdic-
tion over these matters to the courts of the Member States. Such
an arrangement corresponds to the traditional nature of the Union
as an international organization. In view of the Union's very
limited powers the arrangement may even be adequate, particu-
larly since it can be anticipated that most controversies between
Member States will be settled by diplomatic means. If any criti-
cism is to be made, it must be directed against the entire struc-
ture of the Union, which may be too weak to assure effective
yet controlled rearmament. The purpose of the discussion which
follows is to highlight the bold scheme embodied in the EDC by
comparing its judicial powers with those of the Union.
Review of Acts for Legal Deficiencies

Constant supervision by a Court whose aid could be invoked
with as little delay and formality as possible would have been
essential to maintain an efficient yet fair administration of the
Community's laws. Thus it was proposed that the Court of Justice
be empowered to review and annul the acts of any of the Com-
munity organs. However, it should be noted that the Court could
have done no more than quash the deficient act of the Commis-
sariat, the Assembly or the Council and return the matter to the
organ from which it originated.809
The Treaty followed the principles of French administrative
law and permitted the Court to invalidate an act on one of four
grounds: that the organ acting was legally incompetent to per-
form the act; that the organ committed a substantial procedural
307. Original Brussels Treaty, Art. VIII. See also Letters with Reference to the Juris-
diction of the ICJ from, Respectively, the Governments of the Federal Republic and of Italy
to the Other Governments Signatory of the Protocol Modifying and Completing the Brus-
sels Treaty, reproduced in SEN. EXEC. DoC. No. L AND M, 83d Cong., 2d Sess. 80-82
(1954).
308. U.S. TREATY SER. No. 2846. In June 1954 the following States ratified the
Agreement: France, Belgium, Norway, the United States, Canada, the Netherlands, Luxem-
bourg, the United Kingdom and Turkey. See NATO, Information Division, NATO Letter,
June 1954, p. 3. The Agreement has been in effect since Aug. 24, 1953, when the United
States became the fourth signatory to ratify it. See AGREEMENT ON STATUS OF NATO
FORCES Art. XVIII (2). For further discussion of this Agreement, see Baxter, Constitutional
Forms and Some Legal Problems of International Military Command, 29 BRIT. Y.B. INT'L
L. 344-52 (1953). See also SEN. EXEC. REP. No. 1, 83d Cong., 1st Sess. (1953).
309. EDC TREATY Arts. 54, 58.

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violation in acting; that the act was a substantiv

Treaty or its implementing provisions; or that t
a misapplication of power.3"0 A few examples m
nature of these deficiencies. Thus the Commissariat was legally
incompetent to remedy a State's economic difficulties even though
they endangered defence programs. The Council's grant of a war
production license would have been similarly deficient. A typical
example of a substantial procedural violation would have been the
Commissariat's failure to secure the prescribed concurrence of the
Council. Had the Commissariat discriminated against a bidder
who was a national of a Member State, a violation of a Treaty pro-
vision would have been committed. Finally, an appeal alleging
a misapplication of power was designed to challenge the validity
of an act on the ground that the act was improperly motivated.
Even though it was within the power of the issuing organ, the act
so challenged would have been deficient if the organ exercised its
powers for purposes other than those permitted by the Treaty.
Such would have been the case if the Commissariat had sought to
hobble the technological development of a Member's industry by
refusing technical research licenses on the pretext that internal
security would be endangered.
The grounds on which acts could have been reviewed and an-
nulled would have differed with the organs issuing them. The
acts of the Commissariat and the Council could have been ap-
pealed on all four grounds.31' In the case of the Council the reason
for such broad review must be sought in the Council's extensive
activities; its enlarged powers were thought to require stringent
controls designed to keep the Council strictly within the frame-
work of the Treaty. The Coal and Steel Community allows its
Council a much freer hand; the only grounds for an appeal are the
incompetence of the Council or the existence of a procedural vio-
lation.312 The acts of the EDC's Assembly could have been chal-
lenged only on those same two grounds."13
310. Id. Art. 54(1). For further discussion of these legal deficiencies as developed by
French administrative law, see ROHKAM AND PRATr, STUDIES IN FRENCH ADMINISTRATIVE
LAW 32-56 (1947); SCHWARTZ, FRENCH ADMINISTRATIVE LAW AND THE COMMON-LAW
WORLD 203-34 (1954); WALINE, TRAITE EL?MENTAIRE DE DROIT ADMINISTRATIF 134-45
(1951).
311. EDC TREATY Arts. 54(1), 57(1).
312. ECSC TREATY Art. 38, ?T 1, 3. For further comment, see Bebr, The European
Coal and Steel Community: A Political and Legal Innovation, 63 YALE L.J. 1, 29 (1953).
313. EDC TREATY Art. 58(1), ?f 2.

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To enable a State to protect its nat

as possible, the Treaty provided tha
right to appeal on all permissible gr
the Commissariat, the Council and th
inferred that the Member could not
concurrence in the acts of the Comm
The Treaty also provided that the
titled to appeal each other's acts. Th
tion of the Community within the f
Commissariat might have challenged the acts of the Council on
all four grounds and vice versa.316 However, the Council could
have attacked both the recommendations and decisions of the
Commissariat, while the Commissariat could have appealed only
the decisions of the Council. Moreover, the Council's concurrence
in the acts of the Commissariat and its general directives to that
body would have been outside the reach of the Commissariat's
appeal. Similar mutuality of control was to link the Assembly and
the Commissariat, with the difference that while the Assembly
might have challenged the Commissariat's acts on all four
grounds,3"7 the Commissariat's right to appeal was more limited:
the acts of the Assembly could only have been attacked on grounds
of incompetence or as based on a procedural violation.318 No such
mutuality of control was to exist between the Assembly and the
Council. The Assembly might have appealed the Council's acts,319
but the converse was not true. However, the lack of a correspond-
ing right to appeal would have been more apparent than real since
each State had the right to appeal the Assembly's acts.
A comparison of the EDC Treaty with the Treaty establishing
the Coal and Steel Community reveals two striking differences.
First, under the EDC the individual was granted no right to appeal
the various acts of the Commissariat, even though they were ad-
dressed to him as in the case of the Commissariat's request for in-
formation or refusal to grant a production license. For example,
an individual or enterprise arbitrarily refused an export or produc-
314. Id. Arts. 54(1), 57(1), 58(1).
315. A refusal of the Council to concur in the acts of the Commissariat might have
been a misapplication of power. An appeal challenging the Council's failure to concur
would have been desirable.
316. EDC TREATY Arts. 54(1), 57(1).
317. Id.Art.54(1).
318. Id. Art.58(l),12.
319. Id. Art. 57(1).

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tion license by the Commissariat would have been w

of appeal.320 Similarly, an enterprise could not h
the Council's decision to break up a cartel arrang
endangering the fulfillment of the armament prog
the EDC Treaty, unlike its counterpart, allowed a M
peal irrespective of whether its interests were inju
challenged."2'
The same policy of broad review was also to be fo
the Commissariat failed to make recommendatio
either explicitly required by the Treaty or left t
sariat's discretion.322 Any Member or the Counc
brought to the Commissariat's attention its failure
action was mandatory, either could have complained
violated a Treaty provision; in case of discretionary
cation of power was the only ground for a comp
missariat's refusal to act in spite of the complai
justified an appeal to the Court. If the Court rev
missariat's inaction and declared it illegal, its jud
have required the Commissariat to act.323
To annul an act, the Court had to review the und
upon which the act was based. The EDC Treaty
the scope of the Court's review as does the Coal
munity Treaty; in certain cases the latter precludes
evaluating the facts "which formed the basis of [th
ity's] . . . decisions or recommendations."32' But
impossible to draw a sharp line between relevant
facts which served as a basis for the challenged acts
evaluating them. Therefore, the EDC Treaty wise
Court's discretion the extent to which it wished
evaluate the factual background of the act.
Under the Western European Union the final deci
Council cannot be appealed to a court by a Membe
the EDC the greater range of the Council's activ
320. It can be assumed, however, that the regulations to be prepar
sariat for the administration of the licensing procedure might have
coming.
321. Thus the appeal would have gone beyond the protection o
it would have served as an instrument to assure an efficient administrat
323. Id. Art. 55(2).
324. ECSC TREATY Art. 33, If 1. For further comment, see Bebr, The European Coal
and Steel Community: A Legal and Political Innovation, 63 YALE L.J. 1, 30-31 (1953).

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view imperative. But one may question the wisdom and feasi-
bility of having a court review the decisions of an organ rep-
resenting States; where the issue to be reviewed is politically
explosive, the court might well be reluctant to run the risk of
endangering the existence of the entire organization by rendering
an unpopular judgment. Since rejection of the EDC concept dis-
closes the lack of a political climate ripe and mature enough to
accept such a fundamental reorganization of Western Europe, it
seems wise that no attempt was made to subject the Union's Coun-
cil to judicial control.
Review of Acts on Their Merits

The EDC Treaty also established a procedure designed to shield
the State against unforeseeable effects of the Commissariat's acts.
The State could have called the attention of the Commissariat to
fundamental and persistent disturbances caused by its otherwise
legal action or inaction.323 If the Commissariat refused to remedy
the situation, the State concerned could have appealed to the Court,
which had to decide the case on its merits.32" It was not the legality
of the act which would have been disputed, but its expediency and
wisdom. In dealing with such a matter, the Court would have
evaluated all the circumstances attendant to the act and then deter-
mined its suitability; in such a case the Court would have de-
termined the Community's policy.
Adjudication of Disputes Between Member States

Ultimately only the Court of the Community was to be compe-
tent to settle disputes between Members as to the application of
the Treaty. Of course, the Members could have settled such a
dispute "by other means" before resorting to the Court of the Com-
munity.327 It would appear that this reference to other means of
settlement must be construed as meaning a settlement within the
Community-e.g., negotiation or conciliation-an interpretation
which would preclude resort to the International Court of Justice.
In case of a failure or unsuitability of such means, the request of a
325. EDC TREATY Art. 56(1). Whether these disturbances were political, economic
or social in nature would have been irrelevant so long as their potential danger was grave
enough.
326. Id. Art. 56(2). Although the Court could have taken provisional measures,
the final action had to be taken by the Commissariat-but within the Court's judgment.
327. Id. Arts. 65(1), 122.

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State which was a party to the dispute would have sufficed to

tablish the Court's jurisdiction. If, however, the dispute me
related to "the objectives of the Treaty"-for example, a dis-
pute arising out of a trade agreement concerning the supply of
electric power needed by a vital defence industry-the Court was
to adjudicate it only if both States involved agreed to submit the
case.328
The Brussels Treaty requires Members to settle their disputes
by referring them to the International Court of Justice. This com-
mitment, however, does not imply compulsory jurisdiction, for it
is subject to any reservation the States might have made when
accepting the Court's jurisdiction.329 Unlike the Members of EDC,
the Members of the Union are free to use any other method of
pacific settlement.330
Adjudication of Tort Claims
The Community was to assume responsibility for damage

caused by its actions in administering common defence matters.
Of necessity, the right to claim damages had to be broader than
the right to appeal for annulment of an organ's acts; it was to be
available to an injured individual as well as to a Member State.
Because of its vast and sometimes dangerous activities, the Com-
munity was to be liable not only when at fault but in particular
instances in the absence of fault.33'
First of all, the Community was liable for damage resulting
from a "dereliction of service."332 Administrative fault would have
been implied, for example, where an organ committed ultra vires
acts,333 unduly delayed action or failed to act at all. Thus an enter-
328. Id. Art. 65(2).

329. Original Brussels Treaty, Art. VIII, ? 2. All Members accepted the compulsory
jurisdiction of the International Court of Justice, though only on the basis of reciprocity.
For the declarations of acceptance by Luxembourg, the United Kingdom, the Netherlands
and France, see INTERNATIONAL COURT OF JUSTICE, YEARBOOK 1946-47 210, 212, 217, 220
(1948). For Belgium's acceptance, see IN'TERNATIONAL COURT OF JUSTICE, YEARBOOK 1947-
48 130-31 (1949). For similar declarations by Italy and West Germany, see SEN. EXEC.
Doc. No. L AND M, 83d Cong., 2d Sess. 81 (1954).
330. Original Brussels Treaty, Art. VIII, F 5.
331. EDC JURISDICTIONAL PROTOCOL Arts. 2(1), 2(2), 3.
332. Id. Art. 1. The French text uses the expression faute de service, which is more
precise than the English term "dereliction of service." For further discussion of the concept
of faute de service as developed by French administrative law, see STREET, GOVERNMENTAL
LIABILITY-A COMPARATIVE STUDY 58-62 (1953); WALINE, TRAITA ELEMENTAIRE DE
DROIT ADMINISTRATIF 356-61 (1951).
333. E.g., substantial procedural violations, violations of the Treaty or misapplications
of power.

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prise could have claimed damages against the Comm
Community agent revealed business secrets of the
is conceivable that the Community would have bee
sible even for such remote "service-connected f
caused by a member of the Forces while aboard a
On the other hand, the Jurisdictional Protocol fai
sufficiently clear whether a member of the Force
bodily injury during his military service as a result
or lack of adequate medical service could have also
the Community.335 To recover, a victim not only
fault on which the Community's liability was base
to prove the damage suffered. The Protocol did no
extent and nature of damages but it can be infe
practice of the French Council of State that dam
certain, special and causally related to the administrative defi-
ciency."3
But some acts of an official might have been so detached from
the Community's administration that they did not represent ad-
ministrative acts as such. The concept of personal fault was de-
veloped to assure the victim some redress.837 The soundness of this
approach is undoubted. The difficulty lies in distinguishing be-
tween an anonymous administrative fault and a personal fault com-
mitted by an official in the course of fulfilling his duties. Uncer-
tainty would create fear of personal liability and strongly militate
against a resolute and imaginative administration. Moreover, it
would put the victim at a patent disadvantage for frequently he
would be unable to recover against an official. Evidently it was
for these reasons that the Community was to assume liability
even for the personal fault of its officials.338 However, the Pro-
tocol did not propose to exonerate them completely; exonera-
tion would have invited administrative irresponsibility and care-
334. EDC TREATY Art. 114(2). Similarly a bidder who, because of an official's ad-
ministrative oversight or misapplication of power, was eliminated from the contest could
have claimed indemnities, especially if his offer was far more advantageous than that of
the successful bidder.
335. In Art. 9 of the Protocol the Member States renounced their right to claim dam-
ages for injuries sustained by their nationals. This provision, however, might have meant
that the victim could have proceeded either against his State or directly against the Com-
munity. See further Doc. PARL. 228.
336. STREET, op. cit. supra note 332, at 62-63.
337. For the development of this concept in French administrative law, see, e.g.,
SCHWARTZ, FRENCH ADMINISTRATIVE LAW IN THE COMMON-LAW WORLD 258-66 (1954);
STREET, Op. cit. supra note 332, at 58-62.
338. EDC JURISDICTIONAL PROTOCOL Art. 6.

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228 STANFORD LAW REVIEW [Vol. 7: Page IX6
lessness on the part of the official. Therefore, the Community

was to retain against an official who had committed a "particu-
larly serious act" the right of redress for damages paid."88
Officials of the Community were to be exclusively liable for
damages unconnected with their official duties.840 If there was any
difficulty in determining whether an official inflicted the damage
in the course of his duties, the regional section of the Community
Court was to decide the question. If this section found that he was
acting outside the scope of his functions, his liability was to be
determined by an ordinary court of the Member State according
to municipal law.841
Fault was to be the basis of liability for deficient administrative
practice, but the Community was to be absolutely liable for dam-
age caused by its buildings, military installations or dangerous
activities.842 The provision imposing liability for the creation of
risk without fault848 was motivated by the thought that "the very
functioning of the service creates a risk which must be borne by
the public equally."84' Thus the Community was to be absolutely
liable for any harm to a person or his property caused by military
installations or buildings owned or occupied by the Community;84`
whether the damage originated in their nature, construction or
location would have been irrelevant. The Community would also
have been liable for damage arising out of activities "especially
endangering third parties"-e.g., traffic accidents involving Com-
munity-operated automobiles or accidents incidental to the con-
struction of military works. Whether the Community would also
have been liable as a joint tort-feasor for injuries caused by a con-
tractor building a military installation or by a plant producing
ammunition for the Community is not quite clear. The tendency
toward "socialization of risk" discernible in the Jurisdictional Pro-
tocol suggests that the Community would have borne the primary
responsibility for the injury despite the fault of another; it would
339. Id. Art. 8.

340. Id. Art. 7, ? 1.
341. Id. Art. 7, IT 2.
342. Id.Arts.2(1),2(2),3.
343. For further discussion of the principle of absolute liability as develop
French administrative law, sce SCHWARTZ, OP. cit. supra note 337, at 288-98;
cit. supra note 332, at 66-69; WALINE, op. cit. supra note 332, at 594-608. See a
La socialisation generalisee de la reparation des conslequences dommageables
administrative, [1950] RECUEIL DALLOZ: CHRONIQUE 53-56.
344. STREET, op. cit. supra note 332, at 67.
345. EDC JURISDICTIONAL PROTOCOL Art. 2(1).

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March '9551 EDC AND WEU 229
seem, however, that the Communi

gation a right to redress from a n
To recover, the victim need only have proved the damage sus-
tained.34" But the Community could have mitigated or even es-
caped its absolute liability to the extent it could have shown that
the damage had been partly or entirely the fault of the victim or of
a third person. Acts of God would have completely exonerated
the Community.347
The Community's liability for operations creating exceptionally
serious risks was to be even more stringent.348 A sharp distinction
between activities creating abnormal and coincidental danger and
operations creating exceptional risk is, of course, impossible, and
classification would have depended on the particular circumstances
of a case. In general, the criterion of an exceptional risk would
have been the permanence of risk to a certain area or group of
persons. Liability for the damage caused by the explosion of an
ammunition depot would have been a typical example of liability
for exceptionally dangerous operations. The victim's contributory
negligence would, of course, have reduced the Community's liabil-
ity; but the fault of a third person or an act of God would not
have affected its liability.349 When compared with the United
States Federal Tort Claims Act and decisions denying the absolute
liability of the Federal Government, the Treaty-which substan-
tially codifies the practice of French administrative courts-would
appear very progressive. In Dalehite v. United States the United
States government was shielded from liability by the "discretion-
ary function exception."350 Under the EDC a similar situation
would have been the basis for invoking the Community's absolute
liability.
The Member State could have claimed damages before the
Court of the Community;35` the injured individual could have
done so only before the proper Indemnity Commission.352 Both the
individual concerned and the Commissariat acting on behalf of
346. Id.Art.2(2).
347. Ibid. See also Doc. PAuL. 228.
348. EDC JUIuSDICTIONAL PROrocoL Art. 3.
349. Id. Art. 3.
350. Dalehite v. United States, 346 U.S. 15 (1953). For a good comparison of
this decision with the practice of French courts, see Schwartz, Public Tort Liability in
France, 29 N.Y.U.L. REV. 1432, 1432-35, 1444-50 (1954).
351. EDC JURISDICrxONAL PROTOCOL Art 16.
352. Id. Art. 10(l).

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the Community could have appealed the Comm

to the regional section of the Court on grounds
specified by later regulations.353 The individu
right to appeal to the Court. But either the regi
Court or the Commissariat could have brought
Court to obtain its authoritative decision if the
tion of principle.354 In the absence of an appeal t
regional section was to be final, provided that th
did not exceed a specified minimum amount.
In contrast to the EDC, the Western Europe
collective liability. Only the Members of the
liable. The burden of the liability is shared by th
involved on a pro rata basis agreed upon in t
Status of NATO Forces.335 A tort claim inflic
member in line of duty is treated as if it wer
member of the armed forces of the host State.356
for proportional liability applies only to damage
ber of a visiting NATO Force to a citizen of the
property. The Agreement on Status of NATO
apply if a member of NATO Forces harmed an
same nationality on the territory of their State-e
dier, a member of a Dutch armed force placed u
mand, injured in the course of his duties anot
Dutch territory. The State itself is exclusively li
be no sharing of costs with other States. Thus th
NATO Agreement is much narrower than the co
vision of EDC's Jurisdictional Protocol; the latter
the Community liable in both situations.
Under the Union-NATO arrangement permis
are adjudicated by ordinary local courts of the
accordance with its municipal law.357 In this
went further. Not only did the Treaty provid
lishment of local Indemnity Commissions, bu
to introduce a common basis for adjudication;
of liability were to be applicable throughout
Whether a tort was committed in the line of du
353. Id. Arts. 11; 12, ? 1. 354. Id. Art. 13.
355. Art. VIII. For further details, see H.R. RaP. No. 2523, 83d Gong., 2d Sess.
(1954).
356. Id. at 3.
357. AGREEMENT ON STATUs OF NATO FORCES Art. VIII(5a).

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March I9551 EDC AiND WEU 231
the NATO Status of Forces Agreement

trator appointed by agreement of the Member States involved
from among the nationals of the host State."58 Under the EDC, in
contrast, this question would have been decided by the regional
section of the Community's Court."59 It should also be noted that
the Jurisdictional Protocol of the EDC did not distinguish between
damage inflicted on third persons and damage inflicted on military
or nonmilitary property of the Members, save as to damages caused
to transportation facilities and public installations of the Member
States by regular utilization.360 It is hoped that this short survey
may indicate the contrast between the collective character of lia-
bility under the EDC and the individual character of liability un-
der the Union.
Adjudication of Criminal Prosecutions

The Community's criminal jurisdiction over members of the
Defence Forces and their civilian personnel would have seriously
curtailed the Members' control of their nationals and thus chal-
lenged the States' judicial monopolies. For this reason the criminal
jurisdiction of the Community was to be introduced only grad-
ually. Until the Community enacted common legislation estab-
lishing a judicial organization and defining those acts constitut-
ing penal offences,36" members of the Forces were, as a rule, to
be "subject solely to the law of their State of origin"'62-the term
"law" evidently referred to both the ordinary and military penal
law'63-and tried by special European Tribunals composed exclu-
sively of members of their own nationality.364 These Tribunals
would have had jurisdiction even where a member of the Forces
committed an offence or crime in the territory of another Member
State. In such a case the Tribunal might have applied and enforced
the law of the host State if the act was committed against that
State or its population and the law of the State of origin did not
recognize the act as an offence or provided for less severe punish-
ment.363 But it should be noted that the European Tribunals might
not be the only available forums. Because of the constitutional
358. Id. Art. VIII(8).

359. See p. 228 and note 341 supra.
361. Id. Arts. 20, 23, 26. 362. Id. Art. 26(1). 363. Doc. PARL. 229.
364. EDC JURISDIr-TIONAL PROTOCOL Arts. 22(2), 24.
365. Id. Art. 26(2b).

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difficulties involved in transferring jurisdiction ov

a special European Tribunal, the States were to be gi
tunity to delegate the Community's penal jurisdictio
national courts.366 Thus a French member of the Fo
mitted a crime while stationed in Italy would, in any
been tried and punished by a technically French c
to either the French or Italian law. The Protocol
Member States' constitutions to the extent that i
right to appeal the sentence of a national court to th
tion of the Community Court, an appeal which w
permitted in the case of a similar decision by a E
bunal.367 The organization and procedure of the
bunals and the regional sections of the Court were to
Member States' legislation.368
The Jurisdictional Protocol was merely designe
general framework for the exercise of the Commun
jurisdiction during a period of transition.869 Thi
kept in mind when contrasting the provisions of the
those of the NATO Status of Forces Agreement. Yet
mental differences are discernible despite the gen
the Protocol. Until further action the criminal juris
Community would have been vested in European Tri
Tribunals would virtually have been national cour
exclusive jurisdiction over nationals irrespective of t
the alleged offence was committed. In contrast t
and the provisional jurisdiction of the Communit
Status Agreement leaves to the courts of the rec
criminal jurisdiction over offences committed by
the visiting forces outside the scope of their officia
der the NATO Agreement the sending Member S
exclusive or primary criminal jurisdiction only unde
ditions;37" for example, an infraction of a militar
prosecuted only by the sending State. Thus the split
between the sending and receiving State is based o
366. Id. Art. 22(2), If 2.
367. Ibid. For criticism of this shortcoming, see BINDSCHEDLER, RECHT5FRAGEN DER
EUROPXISCHEN EINIGUNG 293 (1954).
369. Id. Art. 20.
370. AGREEMENT ON STATUS OF NATO FORCES Art. VII(lb); see also SEN. EXEC. REP.
No. 1, 83d Cong., 1st Sess. 11-12 (1954).
371. AGREEMENT ON STATUS OF NATO FORCES Arts. VII(la), VII(2a), VII(3a).

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between the military penal laws of

nary criminal law of the latter Stat
far less difficulty. A common milita
it would have been applicable to the members of the Forces
throughout the Community.872 The only situation creating con-
flict would have been a violation of the ordinary criminal law of the
host Member State by members of the Forces stationed therein,
since a unification of the Member States' criminal laws would not
have been feasible for some time.
CONCLUSION
Throughout the formative stages of the EDC and the pe
of its rejection and during the feverish construction of the We
European Union, the German question dominated the scene
problem of controlled German rearmament particularly over-
shadowed the aim of European political unification during the
London Conference. At present the London and Paris Agreements
represent "the widest possible measure of agreement." The low
common denominator of those Agreements is primarily the result
of French fear and distrust of Germany, a feeling which is still
very strong and widespread and one which cuts across party lines.878
Apprehension of possible German predominance in the Defence
Community weighed heavily on French minds.874 Fear that Ger-
man unification would ensure such predominance was particularly
great. However remote from reality that possibility may be, Ger-
man unification would of course have fundamentally changed the
entire structure and balance of the EDC. The failure of the EDC
Treaty to provide either for revision or for withdrawal under such
circumstances created great anxiety in France. Since the EDC
commitments were interpreted as binding only West Germany,
leaving a future all-German government free to withdraw from
372. EDC JURISDICTIONAL PROTOCOL Art. 19; EDC MILITARY PENAL LAW PROTOCOL.
373. According to a recent security survey, France had the lowest security index of all
the Western European countries surveyed. BUCHANAN AND CANTRIL, How NATIONS SEE
EACH OTHER 71-72 (1953). Some 34 percent of the interviewed Frenchmen named Ger-
mans as the people toward whom they were least friendly. Id. at 73.
374. For a good survey of the main objections raised against the EDC Treaty, see
Debre, Contre l'Arme'e europe'enne, 18 POLITIQUE tTRANGiRE 366 (1953); De Clermont-
Tonnerre, L'Arme'e europeenne: Une analyse sans passion, 19 POLITIQUE tTRANGE'RE 169,
171-80 (France 1954); Gerardot, L'Arme'e Europe'nne ct le re'armament allemand, 17
REVUE DE DiFENSE NATIONALE 596 (France 1953).
A comprehensive treatment of the French objections can be found in the anonymous
LA VERITi SUR L'ARMkE EUROPiENNE (1954), containing a presentation by Juin, Pour-
quoi cc traite est "inacceptable." Id. at 62.

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the EDC,37" it was argued that other Members had to

the same right in case of German unification. There
siderable apprehension lest France be plunged into a c
Russia precipitated by a German drive for unification
ery of her eastern territories. It was feared that t
national armed forces would have inextricably comm
to such a venture. Finally, the EDC was attacked a
with the relations between France and the French
To some extent these objections are met by the pr
NATO arrangement. Admittedly, the likelihood of
dominance seems mitigated by British participation i
And direct French entanglement in a German ventur
her eastern territories seems also somewhat lessened
tion of a common defence force, even though this ad
be more apparent than real. Similarly, the relation
France and the French Union will undoubtedly b
affected by the operations of the Western Europea
by those of the Community.
But the price of the alleged gains seems utterly di
ate. There are serious shortcomings inherent in t
consequences of which French critics of the EDC
too lightly. One may honestly question whether t
France is better protected under the Union than it wo
under the proposed EDC. The creation of the Unio
creation of a German army headed by a reconstituted
The disastrous role of the military caste in German p
well known to need any further elaboration;376 it
remembered that "Hitler had been launched by the A
political career."377 The establishment of a general st
detrimental, nay fatal, effects on the feeble and i
375. Statement by Sir Anthony Eden, British Foreign Secretary, N

H.C. DEB. (5th ser.) 688 (1954). The MENDES-FRANCE PROPOSAL ?? I(4)
further, proposing that "any change in the policy of the United States an
dom will constitute a situation that, in terms of Art. 126 of the Trea
quires an immediate consultation between the member states; each of
free to decide whether they will continue to participate in the ED
would have retained a similar right in the event of German reunificat
SPAAK DECLARATION ? 1, 111 2, 3. For a comprehensive discussion of
Grewe, Die Wiedervereinigungsfrage in den Pariser Vertrdgen, Pre
tionsamt der Bundesregierung, Bulletin No. 236, Dec. 16, 1954, pp. 2
376. For an excellent study of the role of the general staff in Germ
WHEELER-BENNETT, THE NEMESIS OF POWER: THE GERMAN ARMY I
1945 (1954).
377. Id. at 159.

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German democracy. "A German

good sense nor psychologically feasible," stated Chancellor Ade-
nauer in I953.37 The fact that the army and its general staff
will be placed under the strict control of a civilian defence minis-
try, headed perhaps by a trade union leader, may not amount to
much. In the twenties von Seeckt managed to manipulate Herr
Gessler, the Defence Minister, at will.379 The ambitions of the gen-
eral staff may only slumber at present.380 A new general staff may,
with the able and willing assistance of industrial tycoons, rekindle
the flames of militarism and political extremism.
However, such speculation must be qualified. At present, West
Germany's military and economic potential is considerably limited
by the division of Germany and the loss of the heavy industry in
Silesia. Furthermore, the creation of a modern and efficient mili-
tary machine would presently seem to be beyond the financial
potential of any West European power, Germany included.38' Thus
a reconstituted German general staff might find it difficult, if not
impossible, to create a powerful army comparable to the Wehr-
macht without outside assistance.
It may well be that the possibility of a German-Soviet rap-
prochement represents a greater danger than resurgent German
militarism. The general staff may again be tempted to follow the
old military road toward an understanding with Russia as did
von Seeckt after the conclusion of the Versailles Peace Treaty and
an allegedly intransigent stand by the Western Powers.382 More-
over, Soviets may attempt to lure West Germany away from the
Western camp by extending the unusually tempting offer of Ger-
man unification and recovery of her eastern provinces, an offer
which could hardly be matched by the Western Powers. With
respect to that possibility the WEU-NATO arrangement appears
378. "In ihrer Begriindung zum Bonner Vertrag hat die Bundesregierung erklart eine
nationale deutsche Armee sei 'weder politisch sinnvoll noch psychologisch tragbar....' '
BERIC$T 11. 180. See also Mollet, France and the Defence of Europe-A French Socialist
View, 32 FOREIGN AFF. 367 (1954).
For some of the problems involved in German rearmament and the measures con-
sidered, see Bussche, German Re-armament: Hopes and Fears, 32 FOREIGN AFF. 73, 73-77
(1954); Kielmannsegg, Militia Force or Conscript Army, Press and Information Office of
the German Federal Republic, The Bulletin, Jan. 13, 1955, pp. 1-2.
379. MORGAN, AssIzE OF ARMS 99 (1946).
380. TAYLOR, SWORD AND SWASnKA 4 (1952); WHEELER-BENNETT, op. Cit. supra note
376, at ii, 700-702.
381. ARON, THE CENTURY OF TOTAL WAR 301-4 (1954).
382. HILGER AND MEYER, THE INCOMPATIBLE ALLIES 186-208 (1953); Hallgarten,
General Hans von Seeckt and Russia, 1920-1922, 21 J. MODERN HIsT. 28-34 (1949).

145.118.198.124 on Wed, 13 Sep 2023 15:55:32 +00:00
236 STANFORD LAW REVIEW [Vol. 7: Page I6X
to be less satisfactory than the EDC. In essence the

a military alliance, however tight, and the existence o
might enable West Germany to bargain with the So
ever farfetched such speculation may be, it cannot
the EDC would have integrated West Germany wi
ern system more closely and effectively and reduce
nity for a nation to pursue an independent course.
The rejection of the EDC will have enduring r
on the future political development of Western Eur
if not killed, the idea of a European political consoli
however weak, might have appeared attractive an
the frustrated and bitterly disappointed German yo
sincerely willing to co-operate. Disillusioned by t
the European ideal, the German youth may again be
of an extreme political faction led by another politi
collapse of the EDC also swept away any chance f
Political Community. In many instances the pro
EDC Treaty were fragmentary or the Communit
so extensive that they almost necessitated the forma
cal Community.384 Perhaps the most convincing ev
need was the EDC's lack of power over the cond
affairs.
As Spaak said, "The Community which we planned and desired
appears impossible for the time being. So we must be satisfied
with an alliance."385 A union successful in bringing about unity
and co-operation among its Members would substantially con-
tribute to the defence of the Atlantic Community and also allay
French fears of Germany. And with the gradual development
of mutual trust and confidence between France and Germany,
the Union might provide a foundation on which a true European
political federation could be built-free of fear and suspicion.
383. Mangin, Perspectives de politique ext6rieure dans l'Allemagne de Bonn, 19
REvuE DE D?FENSE NATIONALE 445 (1954).
384. The military integration provided for by the EDC Treaty would have had inte-
grating effects on the over-all economies of the Member States. The Community would have
been an enormous customer; therefore a co-ordination of the Community needs with those
of the Members would have been necessary. In view of those circumstances a European
Political Community would ultimately have been indispensable. See BERICHT 11.215.
It is doubtful whether the formation of individual "parallel supranational authorities
in the spheres of transport, power, currency and other fields intimately associated with the
basic industries," as advocated, for example, by Friedman, N.Y. Times, Sept. 26, 1954,
p. 8E, would be feasible. The division of control would be entirely artificial. Sooner or
later the problem of co-ordination has to be faced.
385. Statement by Paul-Henri Spaak, as reproduced by Press and Information Office
of the German Federal Republic, The Bulletin, Sept. 30, 1954, p. 3.

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The European Defence Community and the Western European Union: An Agonizing

Stable URL: https://www.jstor.org/stable/1226391

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Prussian militarism must never come to power again. Only a grand

Excerpts from a pamphlet circulated in 1943 by Die weisse Rose, a

SALVADOR DE MADARIAGA, ESSAYS WITH A PURPOSE 25 (1954).

"The choice before us today is between a rearmament of Ger-

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ment; the latest is the Western European Union,3 an

BESATZUNGSSTATUT UND AUSWXRTIGE ANGELEGENHEITEN, DRUCKSACHEN No. 3501 [herein-

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tally different. A broader contrast see

POLITICAL AND MILITARY BACKGROUND

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I9, I950, they guaranteed to "treat any attack ag

15. 23 DEPT. STAT, BULL. 531 (1950). 16. Id. at 530.

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other Member States. It provid

OBJECTIVES AND POWERS

The EDC Treaty provided for a common army and a common

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budget.26 The framers proposed to accomplish t

The formation of a European Political Community was the

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34. EDC MILITARY PROTOCOL Art. 2.

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40. EDC TREATY Art. 79.

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mine the strength of police forces

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been required since such a release would have affecte

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58. Doc. PAuL. 212.

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become a Community matter; under the present arrangemen

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provided for the merger of nati

71. NAC, PARIS RESOLUTION 11 7(b).

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renounced the slightest part of their powers.

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financial-at its disposal,83 an obligation w

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NATO. Basically the armament objectives of EDC and NATO

There is a pronounced difference between the extent of the

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individual, irrespective of his nation

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territory of West Germany was then, as it is now, c

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required to make the control of s

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stocks. The EDC's control would have been particularly effective

112. WEU PROTOCOL No. IV Arts. 7(1), 7(2).

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quantity and quality of the internal defence and police forces'

119. WEU PROTOCOL No. II Art. 5.

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left to the Member in whose territory the joint pro

124. NATO, Information Service, Press Release, April 24, 1953, p. 2.

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130. WARNE, NATO AND ITS PROSPECTS 11, 48 (1954).

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