Kissinger on the Mutual Defense Treaty

With the Philippine population made nervous by Chinese claims and activity in the Spratlys, a year ago Foreign Secretary Alberto del Rosario issued a statement offering reassurance that the USA would honor its obligations under the Mutual Defense Treaty (MDT) signed in 1951. Perhaps significantly, none of the US statepersons he quoted mentioned the islands by name. One therefore wonders whether Washington still subscribes to the State Department view of 1975.

On June 9, 1975, US Secretary of State Henry Kissinger sent a lengthy telegram (hence the occasional absence of definite and indefinite articles in the following) to the Commander in Chief, Pacific Fleet, with a copy to the Manila Embassy, in which he stated that Washington’s “legal interpretation is that MDT commitments do not repeat not apply in event of attack on Spratlys or on GRP (Government of  the Philippines) forces stationed there.” Originally classified “secret” but declassified in July 2006, the communication has more recently been WikiLeaked.

Principally, the MDT covers the metropolitan territory of each party and “islands under its jurisdiction in the Pacific Ocean,” but Washington’s view was that the Spratlys were neither.

The US government, said Kissinger, “regards question of sovereignty over Spratlys (including ‘Freedomland’ or ‘Kalayaan’) as undetermined and we take no position on merits of claims of various disputants. We note that at time MDT signed, GRP had asserted no claim to any of Spratly Islands, and had protested neither Vietnamese nor Chinese claims, which had been reiterated at time of negotiation of 1951 Japanese peace treaty. USG (US Government) announced publicly at that time it considered sovereignty question undetermined.”

Moreover, the Spratlys were not included in the territory ceded by Spain to the USA in 1898, and they were also excluded from the “maps accompanying presentation of MDT.” The Spratlys did not qualify as “islands under its jurisdiction” because, says Kissinger, this formulation was intended “to cover other territory which a party administered by international agreement but was not sovereign over, e.g. UN trust territories and (at that time) Okinawa. We are not aware of any Philippine administered territory falling within this category.”
Even so, in theory the Philippines could expand the territory over which it was sovereign, although the US government did “not see legal basis at this time … for supporting the claim to Spratlys of one country over that of other claimants. Continuous, effective and uncontested occupation and administration of territory is a primary foundation for establishing sovereignty in the absence of international settlement, but Philippine occupation could hardly be termed uncontested in face of claims and protests of Chinese and Vietnamese.”

In view of the above, the State Department agreed with the view of the Manila Embassy, i.e. that the Philippine government was more likely to invoke a third category, which concerned an attack on “its armed forces, public vessels or aircraft in the Pacific.” Even here, Kissinger saw problems, as Washington did “not believe that this aspect of the treaty gives either party carte blanche to deploy forces anywhere in the Pacific with the assurance that the other party will be bound by the MDT in the event of attack on those forces.”

Due regard, said Kissinger, must be paid to the “overall purpose and provisions of MDT,” the preamble of which “sets forth collective defense purpose of MDT and reaffirms parties’ commitments to principles and purposes of UN Charter, while in Article I parties undertake to refrain from ‘threat or use of force in any manner inconsistent with UN Charter.’”

So in what circumstances could the MDT be invoked? “Under most foreseeable circumstances,” said Kissinger, “the treaty would apply if either party were attacked on high seas or in international air space” — or if the armed forces of either party were deployed in a third country in the Pacific, with that country’s consent and they came under an “external armed attack.”

Washington took the same view regarding its mutual defense treaty with Australia and New Zealand (the “Anzus” Treaty), which could be invoked in the event of an attack on US forces stationed in Japan or on Anzus forces “stationed in countries in Pacific to which they have security obligations.” Even here, however, Washington insisted that it must be consulted on deployments potentially affecting its treaty obligations and that it must have discretion on how it would act.

“On the other hand,” the telegram reads, “deployment of forces to a third country without its consent and without legitimate provocation would in most circumstances be contrary to Article I of MDT, and therefore would not, in our view, create obligations under Articles IV and V on the other party in event of attack on such forces.”

 A hypothetical attack on Philippine garrisons in the Spratlys would be a different case. Although the USA had not recognized the sovereignty of any country over the islands, a Philippine occupation would not be viewed as an illegal invasion of another state, but neither could the Philippine deployment be viewed as an “aspect of collective defense purpose of MDT. Rather, we view purpose of GRP garrison as establishing and enforcing a claim to sovereignty over openly disputed territory. MDT in our view does not obligate us to support this type of deployment in event of armed attack.”

This, concluded Kissinger, represented the legal rationale of Washington’s position.

“As a practical matter, we see precious little chance Congress or the American people would support US intervention in Spratly dispute.” Politically, he said, it was surely less harmful “to deny our obligations on legal grounds, than to leave unfulfilled an acknowledged commitment. Furthermore, contrary interpretation would also create difficulty for US if Philippines ever tried to invoke MDT with respect to Sabah…”

As we’ll see next week, two years earlier Ferdinand Marcos had hinted that he might do precisely that.

source:  Tribune by  Ken Fuller